1621 ROUTE 22 WEST OPERATING COMPANY , LLC D/B/A SOMERSET VALLEY REHABILITATION AND NURSING CENTER

1621 ROUTE 22 WEST OPERATING CO., LLC 481 364 NLRB No. 43 1621 Route 22 West Operating Company, LLC d/b/a Somerset Valley Rehabilitation & Nursing Cen- ter and 1199 SEIU United Healthcare Workers East, New Jersey Region. Cases 22–CA–069152 and 22–CA–074665 July 13, 2016 DECISION AND ORDER BY MEMBERS MISCIMARRA, HIROZAWA, AND MCFERRAN On January 15, 2013, Administrative Law Judge Lau- ren Esposito issued the attached decision. The Respond- ent filed exceptions and a supporting brief, the General Counsel and the Charging Party filed answering briefs, and the Respondent filed a reply brief to each answering brief. The General Counsel filed exceptions and a sup- porting brief, the Charging Party filed exceptions and a supporting brief, and the Respondent filed answering briefs to each. In addition, on March 5, 2013, the Re- spondent filed a motion to stay these proceedings, in re- sponse to which the General Counsel filed an opposi- tion;1 on May 21, 2013, the Respondent submitted a post- briefing letter;2 and on August 30, 2013, the Respondent filed a motion for the recusal of Chairman Pearce.3 Most recently, on March 10, 2016, long after the filing period for exceptions in this case had closed, the Respondent filed a motion to dismiss the proceedings, and the Gen- eral Counsel filed an opposition to that motion.4 1 The Respondent contended that the Board lacked a quorum be- cause the President’s recess appointments of two Board members at the time of the motion were constitutionally invalid. In light of the inter- vening confirmation of the current Board members, we deny the motion as moot. 2 The Respondent’s letter, submitted pursuant to Reliant Energy, 339 NLRB 66 (2003), calls the Board’s attention to the Third Circuit’s opinion in NLRB v. New Vista Nursing & Rehabilitation, 719 F.3d 203 (2013). We find the Respondent’s arguments regarding the authority of the Board to issue the Decision and Certification of Representative on August 26, 2011, moot in light of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). 3 The Respondent argues that Chairman Pearce must recuse himself because his chief counsel, Ellen Dichner, prior to her service as chief counsel, represented the Charging Party Union in this case. The Na- tional Labor Relations Board has delegated its authority in this proceed- ing to a three-member panel. Because the panel does not include Chairman Pearce, and neither he nor Ms. Dichner has participated in the Board’s consideration of this case, we deny the motion as moot. See Somerset Valley Rehabilitation & Nursing Center (Somerset I), 362 NLRB 961, 961 fn. 1 (2015) (incorporating by reference 358 NLRB 1361 (2012)), enfd. sub nom. 1621 Route 22 West Operating Co., LLC v. NLRB, Nos. 15-2466 & 15-2586, 2016 WL 3146014, at *10 (3d Cir. June 6, 2016). 4 The Respondent requests that the Board “dismiss the above- captioned unfair labor proceedings in their entirety on the grounds that the complaint and amended complaints in this action were issued by Lafe Solomon, who was serving as Acting General Counsel of the National Labor Relations Board (NLRB or Board) in violation of the Federal Vacancies Reform Act (FVRA).” The Respondent argues that “[a]s the D.C. Circuit found, Solomon was not permitted to serve as Acting General Counsel after the President nominated him in [sic] January 5, 2011,” citing SW General, Inc. v. NLRB, 796 F.3d 67, 74–75 (D.C. Cir. 2015), petition for rehearing en banc denied Case No. 14- 1107 (January 20, 2016), petition for cert. granted __ S.Ct. __, 2016 WL 1381487 (U.S. June 20, 2016) (No. 15-1251). The Respondent adds that the “Court of Appeals for the Ninth Circuit recently reached the same conclusion,” citing Hooks v. Kitsap Tenant Support Services, Inc. (Kitsap II), 816 F.3d 550 (9th Cir. 2016). For the reasons dis- cussed below, we find no merit in the Respondent’s contentions. Prior to filing the current motion to dismiss, the Respondent never raised any issue regarding the FVRA or the authority of the Acting General Counsel, and we therefore find that the Respondent has waived the right to do so. See 1621 Route 22 West Operating Co., LLC v. NLRB, supra, at *9 (quoting SW General, Inc. v. NLRB, 796 F.3d at 83). The Board’s Rules and Regulations preclude parties from belated- ly raising new issues that were not preserved for appeal through the filing of timely exceptions. See Sec. 102.46(b)(2) and (g) of the Board’s Rules and Regulations (“Any exception . . . not specifically urged shall be deemed to have been waived,” and “[n]o matter not included in exceptions . . . may thereafter be urged before the Board, or in any further proceeding.”). The judge’s decision issued on January 15, 2013, and the Respondent’s exceptions were due and filed on March 5, 2013. Inasmuch as the Respondent’s 2016 motion to dismiss seeks to overturn the judge’s decision based on a newly raised argu- ment, we reject the motion as an untimely effort to file additional ex- ceptions. See Bloomingdale’s, Inc., 363 NLRB 1666, 1667–668 fn. 4 (2016); Boeing Co., 362 NLRB 1789, 1789 fn. 1 (2015). Moreover, even assuming, arguendo, that we were to consider the Respondent’s challenge to the authority of the AGC under the FVRA, we would not find it appropriate to dismiss the complaint. On June 18, 2010, the President directed Lafe Solomon, then-Director of the NLRB’s Office of Representation Appeals, to serve as Acting General Counsel pursuant to subsection (a)(3)—the senior agency employee provision. Under that provision, Solomon was eligible to serve as Acting General Counsel at the time the President directed him to do so. See Kitsap II, 816 F.3d at 557; SW General, 796 F.3d at 73. The Re- spondent does not contend otherwise. We acknowledge that the decisions in Kitsap II and SW General also held that Solomon lost his authority as Acting General Counsel on January 5, 2011, when the President nominated him to be General Counsel. Kitsap II, 816 F.3d at 558; SW General, 796 F.3d at 78. Although that question is still in litigation, we find that subsequent events have rendered moot the Respondent’s argument that Solomon’s alleged loss of authority after his nomination precludes further litiga- tion in this matter. Specifically, on March 21, 2016, General Counsel Richard F. Griffin, Jr., issued a Notice of Ratification in this case that states, in relevant part, The prosecution of this case commenced under the authority of Acting General Counsel Lafe E. Solomon during the period after his nomina- tion on January 5, 2011, while his nomination was pending with the Senate, and before my confirmation on November 4, 2013. The United States Court of Appeals for District of Columbia Circuit recently held that Acting General Counsel Solomon’s authority under the Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq., ceased on January 5, 2011, when the President nominated Mr. Solo- mon for the position of General Counsel. SW General, Inc. v. NLRB, __ F.3d __, 2015 WL 4666487, (D.C. Cir., Aug. 7, 2015). The Court found that complaints issued while Mr. Solomon’s nomination was pending were unauthorized and that it was uncertain whether a lawful- 482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,5 and conclusions as modified below and to adopt the recommended Order as modified and set forth in full below.6 ly-serving General Counsel or Acting General Counsel would have exercised discretion to prosecute the cases. Id. at *10. I was confirmed as General Counsel on November 4, 2013. After ap- propriate review and consultation with my staff, I have decided that the issuance of the complaint in this case and its continued prosecution are a proper exercise of the General Counsel’s broad and unreviewa- ble discretion under Section 3(d) of the Act. My action does not reflect an agreement with the appellate court rul- ing in SW General. Rather, my decision is a practical response aimed at facilitating the timely resolution of the charges that I have found to be meritorious while the issues raised by SW General are being re- solved. Congress provided the option of ratification by expressly ex- empting “the General Counsel of the National Labor Relations Board” from the FVRA provisions that would otherwise preclude the ratifica- tion of certain actions of other persons found to have served in viola- tion of the FVRA. Id. at *9 (citing 5 U.S.C. § 3348(e)(1)). . For the foregoing reasons, I hereby ratify the issuance and continued prosecution of the complaint. Thus, even assuming that the Respondent had not previously waived its right to challenge the continued authority of the Acting General Counsel following his nomination by the President, in view of the independent decision of General Counsel Griffin to continue prosecu- tion of this matter, we reject as moot the Respondent’s argument that SW General and Kitsap II preclude further litigation. Accordingly, the Respondent’s motion to dismiss is denied. 5 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. We include in those findings the judge’s implicit discrediting of testimony by Danette Manzi, Health- bridge and CareOne executive vice president of operations, regarding her reasons for eliminating the Respondent’s LPN position. The judge found that the Respondent violated Sec. 8(a)(5) by deny- ing the Union access to its facility. Although healthcare employers generally have a valid interest in controlling access to their facility for patient-care purposes, the Respondent did not assert any such interest in response to the Union’s request for access or discuss with the Union the possibility of accommodating those interests. Instead, the Respondent simply ignored the Union’s request for access. For the reasons stated by the judge and this additional reason, we adopt her finding that the Respondent’s denial of access violated Sec. 8(a)(5). 6 We have modified the recommended Order for the reasons stated below and to conform to our standard remedial language. In accord- ance with our decision in Advoserv of New Jersey, Inc., 363 NLRB 1324 (2016), we shall modify the judge’s recommended tax compensa- tion and Social Security reporting remedy and her recommended Order. We shall substitute a new notice to conform to the Order as modified and in accordance with our decision in Durham School Services, 360 NLRB 694 (2014). Facts We include these facts only as a brief overview; the judge’s decision below and the Board’s decision in Som- erset I, supra, provide a thorough discussion of the rele- vant evidence. The Respondent, a 64-bed nursing home in Bound Brook, New Jersey, provides primarily sub- acute care. It also provides long-term care, but it had no more than five or six patients in long-term care at any relevant time. The Respondent is one of a group of nurs- ing homes owned or managed by two related companies, CareOne Management, Inc. and Healthbridge Manage- ment, which operate dozens of nursing homes throughout New Jersey, Connecticut, Massachusetts, and Pennsylva- nia.7 Starting in 2010, the Respondent’s nursing staff sought representation by 1199 SEIU United Healthcare Workers East, New Jersey Region (the Union). In response to the employees’ vote to unionize, the Respondent committed a series of unfair labor practices, including unlawfully discharging several licensed practical nurses (LPNs).8 In the unfair labor practice proceedings, the Board found that the Respondent’s animus against the Union was “be- yond question,” as demonstrated by its disparate treat- ment of union supporters (who were primarily LPNs), repeated unlawful interrogations of employees, solicita- tions of employee grievances, and other unlawful state- ments by managers. See Somerset I, supra (incorporating by reference 358 NLRB at 1361). The Board further found that the Respondent was extremely focused on unseating the Union through a rerun election, to the ex- tent of making major personnel decisions based on which employees it perceived as likely to “be on [the Respond- ent’s] side” in the event of a rerun election. Id. (incorpo- rating by reference 358 NLRB at 1385). That focus con- tinued even after the Union had been certified as the em- ployees’ exclusive representative. On April 7, 2011, the General Counsel petitioned a United States district court for an injunction ordering interim reinstatement of the nurses who had been dis- criminatorily discharged, as found in Somerset I. In May, the Respondent decided to eliminate its LPN classi- fication and assign all floor nurse work to nonunit regis- tered nurses (RNs).9 It is undisputed that the Respondent 7 The Respondent excepts to the judge’s finding that Healthbridge or CareOne owns the Respondent. There is no dispute, however, that the Respondent’s administration includes high-level managers employed by Healthbridge or CareOne. Because the complaint names only the Respondent as the employer here, we find it unnecessary to pass on the precise relationship among the three entities. 8 See Somerset I, supra. 9 The Respondent contends that it made this change in order to pro- vide better patient care in response to negative recertification surveys that it had received in December 2009 and December 2010 from the 1621 ROUTE 22 WEST OPERATING CO., LLC 483 failed to provide the Union with notice and an opportuni- ty to bargain over that decision. The Respondent elimi- nated the LPNs mainly through attrition but, when only two LPNs, Irene D’Ovidio and Maharanie Mangal, re- mained, it discharged them. Although the Respondent’s Associate Medical Director, Dr. Anthony Frisoli, testi- fied that the change from LPNs to RNs helped convince him to start referring patients to the Respondent, a disin- terested witness, Dr. Edward Buch, testified that he stopped referring patients to the Respondent after the change because the brand-new RNs could not provide the level of care that D’Ovidio had provided. No other nurs- ing home affiliated with Healthbridge or CareOne used exclusively RNs as floor nurses. 1. The 8(a)(3) discrimination allegation We adopt the judge’s finding, for the reasons she stat- ed, that the Respondent violated Section 8(a)(3) and (1) by eliminating the LPN position and transferring work to nonunit RNs in retaliation for the LPNs’ union activity and to evade its responsibility to reinstate its unlawfully discharged LPNs.10 As we found in Somerset I, the Re- spondent wished to erode the Union’s support to improve its chances of winning a rerun election. Removing the unit classification whose members had led the organizing drive would go a long way towards accomplishing that goal. And, as stated above, the Respondent decided to eliminate the LPN classification just 1 month after the General Counsel sought an injunction ordering the rein- statement of several LPNs. We agree with the judge that this timing supports an inference that the Respondent eliminated the LPN classification in response to the LPNs’ union activity, rather than to resolve patient-care problems that had plagued the Respondent for years.11 The Respondent’s brief relies almost solely on challeng- es to the Somerset I decision and on the testimony of Danette Manzi, Healthbridge’s, or CareOne’s Executive Vice President. But the judge implicitly discredited Manzi’s testimony, and we have expressly affirmed the judge’s credibility findings. We therefore adopt the judge’s finding that the Respondent’s elimination of the New Jersey Department of Health and Senior Services, which regulates nursing homes. The judge rejected this claim. 10 In her analysis, the judge cited Relco Locomotives, Inc., 358 NLRB 298 (2012), a case decided by a panel that included two persons whose appointments to the Board were not valid. See NLRB v. Noel Canning, supra. Prior to the issuance of Noel Canning, however, the United States Court of Appeals for the Eighth Circuit enforced the Board’s Order in Relco Locomotives, see 734 F.3d 764 (2013), and there is no question regarding the validity of that court’s judgment. 11 See also 1621 Route 22 West Operating Co. v. NLRB, supra, at *12 (rejecting the Respondent’s similar assertion of the motivation for its conduct in Somerset I). LPN classification and transfer of LPN work to RNs vio- lated Section 8(a)(3).12 2. The 8(a)(5) unit scope and unlawful work transfer allegations The judge found that the Respondent’s unilateral deci- sion to eliminate its LPN position and transfer floor nurse work to nonunit RNs violated Section 8(a)(5) of the Act under two theories. First, citing Fibreboard Corp. v. NLRB13 and Torrington Industries,14 she found that the Respondent unlawfully transferred bargaining unit work without providing the Union with notice or an opportunity to bargain. The judge further found that the Respondent’s action altered the scope of the bargaining unit: she stated that the elimination of the LPN classifi- cation was a mandatory subject of bargaining, and there- fore the Respondent violated Section 8(a)(5) by eliminat- ing the classification without notice to or bargaining with the Union.15 All parties contend that the judge erred in the latter analysis. The General Counsel and the Union contend that, because changing the unit scope is a per- missive, not a mandatory, subject of bargaining, the Re- spondent may not do so absent the Union’s consent or a Board order. In contrast, the Respondent contends that its elimination of the LPN position did not violate Sec- tion 8(a)(5). Under Section 8(d) of the Act, mandatory subjects of bargaining include wages, hours, and other terms and conditions of employment. A decision to subcontract or transfer unit work alters the terms and conditions of em- ployment and is therefore a mandatory subject of bar- gaining. See Fibreboard Corp., 379 U.S. at 210. But eliminating a unit classification alters the scope of the unit, and such an action is a permissive subject of bar- gaining. See, e.g., Shell Oil Co., 194 NLRB 988, 995 (1972), enfd. sub nom. OCAW v. NLRB, 486 F.2d 1266, 1268 (D.C. Cir. 1973). Accordingly, once a specific job has been included in the bargaining unit, it cannot be removed from the unit absent the union’s consent or a Board order. Wackenhut Corp., 345 NLRB 850, 852 (2005). The Respondent admits that it eliminated the LPN classification but contends that, “regardless of whether the elimination of the LPN classification was a mandato- 12 As alleged in the complaint and found by the judge, the Respond- ent’s decision resulted in the discharge of LPNs D’Ovidio and Mangal. To fully remedy this violation, the judge properly ordered the Respond- ent to offer D’Ovidio and Mangal full reinstatement and to make them whole for losses resulting from their discharges. 13 379 U.S. 203 (1964). 14 307 NLRB 809 (1992). 15 See generally NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342 (1958). 484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ry or permissive subject of bargaining, no relief is war- ranted here.” The Respondent does not state a position about whether the elimination of the LPN classification is a change in the scope of the unit, a transfer of work outside the unit, or both. Instead, it simply raises several defenses to the general duty to bargain that the Board and courts have recognized in cases including First National Maintenance v. NLRB, 452 U.S. 666 (1981), and Dubu- que Packing, Co., 303 NLRB 386 (1991), enfd. 1 F.3d 24 (D.C. Cir. 1993), cert. denied 511 U.S. 1138 (1994).16 As we now show, those defenses are inapplicable here, as well as unsupported by the record.17 First, the cases cited above concern refusals to bargain over mandatory subjects of bargaining. The Board has never found an exception to an employer’s duty to re- frain from unilaterally changing the scope of a unit— again, a permissive subject of bargaining—based on de- fenses recognized in cases dealing with mandatory bar- gaining subjects. Essentially, the Respondent argues that it may make sweeping changes to its employees’ repre- sentation not only without obtaining the Union’s consent, but without even notifying the Union in advance. The Respondent has not offered any rationale for applying such ill-suited defenses here, and we decline to do so. Second, unlike in all the cases that the Respondent cites, employees of the Respondent indisputably still perform all the work that the employees in the eliminated LPN classification performed at the same location.18 Finally, even if the defenses the Respondent raises were cogniza- ble here, we affirm the judge’s reasons for rejecting them on the merits. The Respondent also challenges the General Counsel’s request for an order that it cease and desist from remov- 16 In particular, the Respondent argues that eliminating the LPNs was a change in the scope and direction of the business, that labor costs were not a factor in the decision, and that the decision was motivated by “compelling economic circumstances.” 17 The Board has unanimously found that the Respondent violated Sec. 8(a)(3) when it eliminated the LPN classification and transferred LPN work to RNs. Because any additional finding that these same acts also violated Sec. 8(a)(5) would not materially affect the remedy, Member Miscimarra finds it unnecessary to reach or pass on the Sec. 8(a)(5) issues addressed by his colleagues. 18 The Respondent admits as much in its brief, but it draws the wrong conclusion from this admission. In the Respondent’s view, this case should be distinguished from Fibreboard because, here, the Re- spondent did not hire permanent subcontractors to do the work that LPNs had previously done. This fact undermines the Respondent’s contention. The entire line of Board and court cases beginning with Fibreboard, including First National Maintenance and Dubuque Pack- ing, deals with transfers of work in which the employer moves the work to employees of a different employer or its own employees at a different location. A straightforward work reassignment to another (in this case, nonrepresented) group of employees at the same location is not con- templated by those cases. ing classifications from the unit without the Union’s con- sent, contending that the General Counsel did not seek that remedy in the complaint and citing TLI, Inc.19 But TLI, Inc. is inapposite because the complaint in the pre- sent case clearly alleges that the Respondent violated Section 8(a)(5) by removing the LPN classification from the unit. An order to restore the classification and to cease and desist from removing classifications from the bargaining unit, absent the Union’s consent or a Board order, is the standard remedy for the violation alleged and found, and it need not be separately requested. In any event, the Board’s power to address remedial issues is not limited to granting the remedies sought by the General Counsel, in the complaint or otherwise. See, e.g., J. Picini Flooring, 356 NLRB 11, 12 fn. 5 (2010) (rejecting the argument that a requested remedy had been waived because it was sought for the first time on excep- tions); Indian Hills Care Center, 321 NLRB 144, 144 fn. 3 (1996) (citations omitted). We agree with the General Counsel and the Union that the scope of the bargaining unit may be altered only by consent of the parties or Board order. Therefore, order- ing the Respondent merely to give the Union notice and an opportunity to bargain before implementing any changes to the scope of the unit would not fully remedy the violation found. Instead, we shall order the Re- spondent to cease and desist from altering the bargaining unit without the Union’s consent.20 3. Remedial matters The Board has broad discretionary authority under Section 10(c) to fashion appropriate remedies that will best effectuate the policies of the Act. See, e.g., J&J Snack Foods Handhelds Corp., 363 NLRB 213, 213 (2015) (citing NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 262–263 (1969)); see also 1621 Route 22 West 19 271 NLRB 798, 805–806 (1984), enfd. 772 F.2d 894 (3d Cir. 1985). 20 We need not address whether, as the judge found, the Respond- ent’s elimination of the LPN classification was also a unilateral transfer of unit work in violation of Sec. 8(a)(5). The remedy for such a viola- tion would essentially be subsumed by the remedies we order for the 8(a)(3) violation and the 8(a)(5) change of unit scope without consent. Aggregate Industries v. NLRB, __ F.3d ___, Cases No. 14-1252 and 14- 1276, 2016 WL 3213001 (D.C. Cir. June 10, 2016) (denying enforce- ment in relevant part to 359 NLRB 1419 (2013)) does not require a different result. There, the court held that the Board had erred in find- ing a change in the unit’s scope, rather than a transfer of work, when the employer moved a portion of its work from the employees in one bargaining unit to those in another unit. In so finding, the court none- theless distinguished cases in which “the employers did not simply move work between positions in different units; they effectively elimi- nated the position that had initially done the work.” Id. at *6. Here, the Respondent effectively—and purposefully—eliminated the LPN posi- tion that had performed the work at issue before the Union prevailed in the election. 1621 ROUTE 22 WEST OPERATING CO., LLC 485 Operating Co., LLC v. NLRB, supra, 2016 WL 3146014, at *11 (enforcing Somerset I) (“[C]ourts of appeals should not substitute their judgment for that of the NLRB in determining how best to undo the effects of unfair labor practices, and the Board’s choice of a remedy must be given special respect by reviewing courts, and must not be disturbed unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.”) (internal quotation marks and citations omitted). Con- sistent with that discretionary authority, we have con- cluded that, in this case, remedies beyond those recom- mended by the judge are necessary to effectuate the poli- cies of the Act. As stated, the Board’s power to address remedial issues sua sponte is well established. In light of the Respondent’s demonstrated proclivity to violate the Act, we will issue a broad remedial order re- quiring it to cease and desist from “in any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.” Such broad orders are appropriate where the respondent has shown a proclivity to violate the Act or has committed particularly egregious violations. See Hickmott Foods, 242 NLRB 1357, 1357 (1979). Alt- hough no party excepted to the judge’s failure to recom- mend a broad order, the Respondent’s violations are suf- ficiently numerous and serious to warrant a broad order. The Respondent has repeatedly violated the Act. In Somerset I, we found that the Respondent violated Sec- tion 8(a)(1) by engaging in multiple unlawful interroga- tions and unlawful solicitations of employee grievances, and Section 8(a)(3) and (1) by unlawfully disciplining and discharging four employees, accelerating the resigna- tion date of a fifth, and reducing the hours of per diem employees, all in response to the Union’s organizing drive. Now, the Respondent has taken its actions a step further, violating Section 8(a)(5), (3), and (1) by elimi- nating the LPN classification in retaliation for the union activities of its LPNs and in order to avoid reinstating unlawfully discharged employees.21 Its unlawful actions have seriously depleted the size and strength of the bar- gaining unit.22 The Respondent has also independently violated Section 8(a)(5) and (1) by refusing to allow its 21 We also note that some of the Respondent’s agents who commit- ted the unfair labor practices here, including Manzi, are employees of Healthbridge, which has shown a proclivity to violate the Act. See Long Ridge of Stamford, 362 NLRB 310 (2015); Healthbridge Mgmt., 360 NLRB 937 (2013), enfd. 798 F.3d 1059 (D.C. Cir. 2015). Alt- hough Healthbridge’s ownership of the Respondent is disputed, its employees’ participation in the conduct that we find unlawful is not. 22 Before the Respondent eliminated the LPN classification, it em- ployed 19 LPNs, about a quarter of the total bargaining unit of about 75 employees. employees’ chosen bargaining representative any access to its premises, failing even to respond to the Union’s request. Therefore, in light of the Respondent’s demon- strated proclivity to violate the Act, we amend the judge’s remedy to include a broad cease-and-desist order. Because of the Respondent’s proclivity for violating the Act and its undermining of the bargaining unit, we find that further remedies are appropriate. To dissipate as much as possible any lingering effect of the Respond- ent’s serious and widespread unfair labor practices and enable employees to exercise their Section 7 rights free of coercion, we will require that the remedial notice be read aloud to the Respondent’s employees by a responsi- ble management official of the Respondent, and in the presence of a Board agent and an agent of the Union if the Region or the Union so desires, or at the Respond- ent’s option, by a Board agent in the presence of a re- sponsible management official and, if the Union so de- sires, of an agent of the Union. See, e.g., Texas Super Foods, Inc., 303 NLRB 209, 220 (1991). Finally, we will require that the remedial notice should be mailed, at the Respondent’s expense, to all the Re- spondent’s employees employed at any time since May 1, 2011 (the date of the first unfair labor practice by the Respondent in these proceedings). We find that the Re- spondent’s persistent goal of undermining the Union, the length of time that has passed since the events of this case, and especially the LPNs’ absence from the work force during that time, warrant this additional notification remedy. See Pacific Beach Hotel, 361 NLRB 709, 714– 715 (2014) (noting that “the [r]espondents’ violations were unquestionably deliberate, targeted, and egregious, designed to frustrate the exercise of Section 7 rights and undermine the [u]nion’s effectiveness. Mailings will reach individuals who would not otherwise see the post- ing but who were affected by the [r]espondents’ unlawful conduct, such as the [r]espondents’ former employees who lack access to the [r]espondents’ facility.”), enfd. in relevant part sub nom. HTH Corp. v. NLRB, -- F.3d --, Case No. 14-1222, 2016 WL 2941936 (D.C. Cir. May 20, 2016).23 ORDER The National Labor Relations Board orders that the Respondent, 1621 Route 22 West Operating Company, LLC d/b/a Somerset Valley Rehabilitation & Nursing 23 Member Miscimarra would not order the Respondent to mail the notice to employees absent a showing that the Respondent has gone out of business or closed the facility involved in these proceedings. In his view, unlike in Pacific Beach Hotel, cited by his colleagues, the length of time during which the Respondent has undermined the bargaining unit has not been so excessive and unusual as to warrant a notice mail- ing. 486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Center, Bound Brook, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Eliminating classifications contained in the bar- gaining unit represented by the Union and transferring the work formerly performed by employees in those clas- sifications to nonunit employees in retaliation for the bargaining unit employees’ union activities. The bar- gaining unit is: All full-time and regular part-time and per diem non- professional employees including licensed practical nurses, certified nursing assistants, housekeepers, reha- bilitation technicians, dietary cooks, dietary aides, laundry aides, recreation assistants, unit secretaries, medical records coordinators, maintenance workers, porters and receptionists employed by the Employer at its Bound Brook, New Jersey location, but excluding all office clerical employees, registered nurses, dieti- cians, physical therapists, physical therapy assistants, occupational therapists, occupational therapy assistants, speech therapists, social workers, staffing coordinators, payroll/benefits coordinators, all other professional employees, guards and supervisors as defined in the Act. (b) Eliminating classifications contained in the bar- gaining unit without the consent of the Union or a Board order. (c) Refusing to provide the Union access to its Bound Brook, New Jersey facility to obtain information regard- ing the bargaining unit employees’ work processes and working conditions, including health and safety condi- tions. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaran- teed 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 this Order, restore the LPN classification and return to the LPNs any LPN work transferred to RNs since May 2011. (b) On the Union’s request, grant the Union’s desig- nated representative access to the Bound Brook, New Jersey facility for reasonable periods and at reasonable times, sufficient to allow the Union’s representative to observe the bargaining unit employees’ work processes and working conditions, including health and safety con- ditions. (c) Within 14 days from the date of this Order, offer Irene D’Ovidio and Maharanie Mangal full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (d) Make Irene D’Ovidio and Maharanie Mangal whole, with interest, for any lost earnings and other ben- efits suffered as a result of the above-described unlawful unilateral and retaliatory changes, in the manner set forth in the remedy section of the judge’s decision as amended in this decision. (e) Compensate Irene D’Ovidio and Maharanie Man- gal for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 22, within 21 days of the date the amount of backpay is fixed, either by agreement or by Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. (f) Within 14 days from the date of this Order, remove from its files any reference to the August 18, 2011 and October 17, 2011 unlawful discharges of Irene D’Ovidio and Maharanie Mangal, and, within 3 days thereafter, notify D’Ovidio and Mangal in writing that this has been done and that the discharges will not be used against them in any way. (g) 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, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (h) Within 14 days after service by the Region, post at its Bound Brook, New Jersey facility copies of the at- tached notice marked “Appendix.”24 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 22, after being signed by 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. 24 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.” 1621 ROUTE 22 WEST OPERATING CO., LLC 487 (i) Within 14 days after service by the Region, dupli- cate and mail, at its own expense, after being signed by Respondent’s authorized representative, copies of the attached notice to the last known addresses of all current employees and former unit employees employed by the Respondent at any time since May 1, 2011. (j) Within 14 days after service by the Region, hold a meeting or meetings during working hours, which shall be scheduled to ensure the widest possible attendance of unit employees, at which time the attached notice is to be read to employees by a responsible management official in the presence of a Board agent and an agent of the Un- ion if the Region or the Union so desires, or, at the Re- spondent’s option, by a Board agent in the presence of a responsible management official and, if the Union so desires, of an agent of the Union. (k) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing 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 eliminate classifications contained in the bargaining unit represented by the Union and transfer the work formerly performed by employees in those classifi- cations to nonunit employees in retaliation for your union activities. The bargaining unit is: All full-time and regular part-time and per diem non- professional employees including licensed practical nurses, certified nursing assistants, housekeepers, reha- bilitation technicians, dietary cooks, dietary aides, laundry aides, recreation assistants, unit secretaries, medical records coordinators, maintenance workers, porters and receptionists employed by the Employer at its Bound Brook, New Jersey location, but excluding all office clerical employees, registered nurses, dieti- cians, physical therapists, physical therapy assistants, occupational therapists, occupational therapy assistants, speech therapists, social workers, staffing coordinators, payroll/benefits coordinators, all other professional employees, guards and supervisors as defined in the Act. WE WILL NOT eliminate classifications contained in the bargaining unit without the Union’s consent or a Board order. WE WILL NOT refuse to provide the Union access to our Bound Brook, New Jersey facility to obtain information about your work processes and working conditions, in- cluding health and safety conditions. WE WILL NOT in any other manner interfere with, re- strain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, restore the LPN classification and return to the LPNs any LPN work transferred to RNs since May 2011. WE WILL, on the Union’s request, grant the Union’s designated representative access to our Bound Brook, New Jersey facility for reasonable periods and at reason- able times, sufficient to allow the Union’s representative to observe your work processes and working conditions, including health and safety conditions. WE WILL, within 14 days from the date of the Board’s Order, offer Irene D’Ovidio and Maharanie Mangal full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights or priv- ileges previously enjoyed. WE WILL make Irene D’Ovidio and Maharanie Mangal whole for any loss of earnings and other benefits result- ing from their discharges, less any net interim earnings, plus interest. WE WILL compensate Irene D’Ovidio and Maharanie Mangal for the adverse tax consequences, if any, of re- ceiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region 22, within 21 days of the date the amount of backpay is fixed, either by agreement or by Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharges of Irene D’Ovidio and Maharanie Mangal, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the discharges will not be used against them in any way. 488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL hold a meeting or meetings during working hours and have this notice read to you and your fellow workers by a responsible management official in the presence of a Board agent and an agent of the Union if the Region or the Union so desires, or by a Board agent in the presence of a responsible management official and, if the Union so desires, of an agent of the Union. 1621 ROUTE 22 WEST OPERATING COMPANY, LLC, D/B/A SOMERSET VALLEY REHABILITATION & NURSING CENTER The Board’s decision can be found at www.nlrb.gov/case/22-CA-069152 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. Nancy Slahetka, Esq., for the Acting General Counsel. Steven W. Likens, Esq. and Amber Isom-Thompson, Esq. (Lit- tler Mendelson, P.C.), for the Respondent. Ellen Dichner, Esq. (Gladstein, Reif & Meginniss, LLP), for the Charging Party. DECISION STATEMENT OF THE CASE LAUREN ESPOSITO, Administrative Law Judge. Based upon a charge in Case 22–CA–69152 filed on November 17, 2011, and amended on or about December 5, 2011, January 25, 2012, and April 3, 2012, and upon a charge in Case 22–CA–74665 filed on February 15, 2012, an Order consolidating cases, third amended consolidated complaint, and notice of hearing issued on April 26, 2012. The complaint alleges that 1621 Route 22 West Operating Company, LLC d/b/a Somerset Valley Reha- bilitation & Nursing Center (“Somerset Valley” or “Respond- ent”), violated Sections 8(a)(1), (3), and (5) of the Act by elim- inating a bargaining unit classification and transferring work to nonbargaining unit classifications without providing 1199 SEIU United Healthcare Workers East, New Jersey Region (1199 or the Union), with notice or the opportunity to bargain, and in retaliation for the bargaining unit employees’ union ac- tivities. The complaint further alleges that as a result of the unlawful elimination of a bargaining unit classification and transfer of work, Respondent discharged employees Irene D’Ovidio and Maharanie Mangal. Finally, the complaint alleg- es that Somerset Valley unlawfully denied the Union access to its facility, in violation of Sections 8(a)(1) and (5). Respondent filed an answer denying the material allegations of the com- plaint. This case was tried before me on May 7, 8, 9, 10, and 11, 2012, in Newark, New Jersey. FINDINGS OF FACT I. JURISDICTION Respondent admits in its answer and I find that at all material times it has been a limited liability company engaged in the business of operating a rehabilitation and nursing facility in Bound Brook, New Jersey, which provides health care and related services. Respondent admits and I find that it is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Respondent’s Operations and Management Respondent operates a 64-bed facility which provides pri- marily sub-acute health care for illness, injury, or exacerbation of a chronic condition immediately after or in lieu of hospitali- zation. Respondent also has several long-term care patients, who have resided at its facility for a number of years. These long-term care patients generally require assistance with activi- ties of daily living. Respondent is subject to regulation and oversight by the New Jersey Department of Health and Senior Services (the NJDHSS), which performs yearly Recertification Surveys based upon visits to the facility, and by the Center for Medicare and Medicaid Services (the CMS). At all times mate- rial to the events at issue here, Respondent accepted self-paying and Medicare patients, but not Medicaid patients. Respondent is part of a group of health care facilities owned and operated by Healthbridge Management, Inc. and CareOne Management, Inc. Healthbridge Management operates three skilled nursing facilities in New Jersey Somerset Valley, Woodcrest, and South Jersey. CareOne Management operates 25 facilities in New Jersey which also provide 24-hour skilled nursing services for both sub-acute and long-term care patients. Healthbridge Management and CareOne Management both maintain their corporate offices and an information technology department at Bridge Plaza in Fort Lee, New Jersey. Health- bridge Management and CareOne Management issue policies applicable to the individual facilities they own and manage. Respondent’s administrator is the manager with the highest level of authority at the Somerset Valley facility. Since August 1, 2011, this position has been held by Kristina Grasso, and from August 2010 to August 2011 Respondent’s administrator was Doreen Illis.1 Respondent’s administrator reports to a regional director of operations, who is employed by either Healthbridge Management, Inc. or CareOne Management, Inc. Jason Hutchens was the regional director of operations until 1 Illis and Grasso worked together at the facility for 2 to 3 weeks in August 2011. 1621 ROUTE 22 WEST OPERATING CO., LLC 489 November 2011, and in January 2012, Orrin Karstetter assumed this position. The Regional director of operations in turn re- ports to the executive vice president of operations, who is em- ployed by both Healthbridge Management and CareOne Man- agement. The executive vice president of operations has ulti- mate operational control over HealthBridge Management facili- ties such as Respondent, and CareOne Management facilities as well. Danette Manzi has been executive vice president of oper- ations for HealthBridge Management and Care One Manage- ment since January 2011. Somerset Valley’s Nursing Department is headed by a direc- tor of nursing (DON), who reports to its administrator. There is also an assistant director of nursing (ADON), and a unit man- ager in the Nursing Department. These positions have seen significant turnover during the past several years. Doreen Illis testified that when she became administrator in August 2010, the DON position had been filled by an employee from Health- bridge Management or CareOne Management. Illis then hired Inez Konjoh as the DON, but discharged her 5 months later. Subsequently Jackie Engram, vice president of clinical services in New Jersey for either HealthBridge Management or CareOne Management, became DON. Kristina Grasso testified that when she became administrator in August 2011, Engram was still the DON, but left shortly thereafter. Ruth Brown Roper was then hired as the DON, but she was discharged by Grasso in late October or early November 2011. Grasso then promoted ADON Jennifer Lempke to interim DON from November 2011, until Lempke resigned in late April 2012. Similarly, Illis testified that Francine O’Dominique was the ADON from either October or November 2010 until August 2011. When Grasso became administrator, Lempke was appar- ently the ADON, and after Grasso promoted Lempke to interim DON, Ajoke Ogunwolere assumed the ADON position. Illis and Grasso also both testified that there had been at least three different employees in the unit manager position during their respective tenures as administrator. Kristina Grasso, Doreen Illis, and Danette Manzi testified at the hearing for Respondent, as did Anthony Frisoli, MD, Re- spondent’s associate medical director since November 2011. Maharanie Mangal and Irene D’Ovidio, both formerly em- ployed by Respondent as LPNs, testified for General Counsel, as did Edward Buch, MD, formerly an attending physician at Respondent’s facility, and Ricky Elliott, a vice president of 1199. Grasso and Dr. Frisoli testified regarding impending regula- tory changes in conjunction with the recently enacted federal healthcare reform measures. Under these new rules, if a patient with a diagnosis of congestive heart failure, pneumonia, or myocardial infarction is readmitted to a hospital within 30 days of discharge, the hospital will incur a financial penalty. Hospi- tals are therefore seeking out facilities for sub-acute care refer- rals with lower hospital readmission rates, and facilities which provide sub-acute care, such as Respondent, are in turn attempt- ing to decrease the rates at which their patients are readmitted to a hospital. Healthbridge Management and CareOne Man- agement had therefore issued to their facilities, and Respondent was to implement, a series of measures designed to reduce the rate at which patients who are referred by hospitals to Re- spondent are readmitted to a hospital within thirty days, such as the Acute Transfer Alternative Program, or ATAP. Illis testi- fied that during her tenure as administrator, she and Engram participated in a weekly conference call with Jeff Slocum, a manager with Healthbridge Management responsible for quali- ty assurance,2 regarding patients transferred from Somerset Valley to a hospital. Illis testified that other facilities partici- pated in conference calls with Slocum before and after hers. B. The Union’s Organizing Campaign, the Representation Election, and the Union’s Certification On July 22, 2010, 1199 filed a petition for a representation election in Case 22–RC–13139. The election was conducted on September 2, 2010, pursuant to a Stipulated Election Agree- ment, and 38 votes were cast for 1199, with 28 votes cast against the Union and five challenged ballots. Respondent filed Objections, and in a Decision issued August 26, 2011, the Board adopted the Hearing Officer’s findings and recommenda- tions overruling Respondent’s objections, and certified 1199 as the exclusive collective bargaining representative of the em- ployees in the following unit: All full-time and regular part-time and per diem non- professional employees including licensed practical nurses, certified nursing assistants, housekeepers, rehabilitation tech- nicians, dietary cooks, dietary aides, laundry aides, recreation assistants, unit secretaries, medical records coordinators, maintenance workers, porters and receptionists employed by the Employer at its Bound Brook, New Jersey location, but excluding all office clerical employees, registered nurses, die- ticians, physical therapists, physical therapy assistants, occu- pational therapists, occupational therapy assistants, speech therapists, social workers, staffing coordinators, pay- roll/benefits coordinators, all other professional employees, guards and supervisors as defined in the Act. Somerset Valley Rehabilitation & Nursing Center, 357 NLRB 736. Respondent subsequently refused to bargain with 1199 and provide requested information, and on December 30, 2011, the Board issued a Decision and Order requiring that Respondent do so. Somerset Valley Rehabilitation & Nursing Center, 357 NLRB 1866. Respondent has filed a Petition for Review of the Board’s August 26, 2011 Decision and Order with the United States Court of Appeals for the Third Circuit. C. Other Previous Unfair Labor Practice Charges and Federal Litigation Beginning on August 31, 2010, 1199 filed a series of unfair labor practice charges and amended charges alleging that Re- spondent had issued written warnings to employees, discharged them, and reduced their hours in retaliation for their activities on behalf of the Union. The charges also alleged that Respond- ent unlawfully interrogated employees and solicited employee grievances. A hearing was conducted from April 27 to June 28, 2011 before Administrative Law Judge Steven Davis, and on November 21, 2011, Judge Davis issued a Decision and Rec- ommended Order. Somerset Valley Rehabilitation & Nursing 2 Illis apparently could not provide specific information regarding Slocum’s title or employer during her testimony (Tr. 493–495). 490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Center, JD(NY)–45–11. Respondent filed Exceptions, and on September 26, 2012 the Board issued a Decision and Order in Somerset Valley Rehabilitation & Nursing Center, 358 NLRB 1361. The Board affirmed Judge Davis’s conclusions that Re- spondent had violated Sections 8(a)(1) and (3) by unlawfully issuing written discipline to and discharging employees Shan- non Napolitano, Jillian Jacques, and Valerie Wells, by dis- charging Sheena Claudio, by accelerating the resignation date of Lynette Tyler, and by reducing the hours of per diem em- ployees.3 The Board also affirmed Judge Davis’s findings that Respondent violated Section 8(a)(1) by repeatedly interrogating employees in an unlawful manner, and by unlawfully soliciting employee complaints and grievances. In April 2011, prior to the opening of the administrative hearing, the Regional Director, Region 22, filed an action seek- ing injunctive relief pursuant to Section 10(j) of the Act in the United States District Court for the District of New Jersey. On April 16, 2012, the District Court issued a memorandum opin- ion and order granting and denying in part the relief sought. The District Court order enjoined and restrained Respondent from interrogating employees, promising increased benefits, and improved terms and conditions of employment if employ- ees refrained from union activities, and discharging and disci- plining employees in retaliation for their union support and activities. The District Court further ordered the reinstatement of Napolitano and Claudio. However, the District Court de- clined to order the reinstatement of Wells and Jacques, rescind written discipline, and restore the hours of the per diems. Lightner v. Somerset Valley Rehabilitation & Nursing Center, 2012 WL 1344731 and 2012 WL 1372177 (D.N.J. April 16, 2012). D. Respondent’s Elimination of the LPN Job Classification and Move to an All-RN Model of Health Care Delivery At all times material to the events at issue in this case, Re- spondent’s nursing staff has been assigned to three shifts. Prior to the spring of 2011, there were three floor nurses and four to five CNAs on the 7 a.m. to 3 p.m. shift, three floor nurses and three to four CNAs on the 3 p.m. to 11 p.m. shift, and two floor nurses on the 11 p.m. to 7 a.m. shift. These shifts overlapped by 15 minutes, so that the nursing staff finishing one shift could consult with the staff beginning the following shift. LPNs worked as floor nurses, as did three RNs; both classifications of employees performed the same tasks.4 Illis testified that during this period Respondent employed 19 LPNs and eight RNs, including part-time and per diem LPNs. Each LPN was re- sponsible for approximately 2022 patients or residents each day. Mangal and D’Ovidio testified regarding the daily activities of the floor nurses. After receiving a report from the floor nurse on the prior shift, the LPNs distributed medication and 3 Napolitano, Jacques, and Claudio were LPNs; Wells, Tyler, and the per diem employees at issue in that case were CNAs. Judge Davis found that Napolitano, Jacques, and Claudio were “the three leading union advocates at Somerset Valley.” Somerset Valley Rehabilitation & Nursing Center, 358 NLRB 1361, at p. 1387. 4 In addition, the unit manager, assistant director of nursing, director of nursing, and MDS coordinator are RNs. performed treatments and assessments, involving a physician as necessary. Treatments included those necessary for the care of wounds (such as suctioning and changing bandages and dress- ings) and tracheotomies (such as suctioning and cannula clear- ance), treatments for infections, starting and maintaining IV lines,5 treatments involving respiration such as nebulizers, in- halers, and BIPAP and CPAP machines, the use of continuous passive motion machines, maintenance of correct posture, and tasks involved in peritoneal dialysis. In addition, LPNs assisted chronic heart failure and other patients with activities of daily living (ADLs). LPNs and RNs also performed assessments. In the admis- sions process, LPNs performed an assessment regarding the patient’s pain, wounds, sensory perception, alertness and con- sciousness, and capabilities in terms of standing and performing ADLs independently. A group of employees, including the Minimum Data Set (MDS) Coordinator, the dietician, social worker, therapeutic recreation, and other nurses, then devel- oped a comprehensive plan of care for the patient or resident. LPNs also performed specific assessments for pain while dis- tributing medications, and assessed each patient when begin- ning their shift each day. Under their professional license, RNs are permitted to develop a plan of care for the patient based upon the assessments they perform, whereas an LPN’s assess- ment involves only observing and recording various aspects of the patient’s condition. Finally, only RNs are permitted to make a pronouncement of death. Mangal and D’Ovidio testified that beginning in June 2011, Respondent began using a number of RNs referred from an agency to replace LPNs as the LPNs resigned or were dis- charged. D’Ovidio testified that Respondent had never before used agency nurses in such a large capacity. Mangal and D’Ovidio both testified that they trained the agency RNs to perform specific floor nurse tasks, such as passing medication, starting an IV, dialysis procedures, and suctioning, because several had little or no actual nursing experience.6 The agency RNs then proceeded to perform the same work that LPNs had performed as floor nurses, described above. Eventually these agency RNs were replaced by RNs who were hired as floor nurses on a permanent basis, and by July 2011, Mangal and D’Ovidio were the only LPNs remaining at the facility. Mangal and D’Ovidio testified that they provided orientation and training to the newly-hired RNs, some of whom had no nursing experience. For example, Mangal and D’Ovidio testified that they trained the new employee RNs regarding starting an IV, dialysis, pleural evacuation, wound and trache- otomy suctioning, and changing wound dressings. The evi- dence establishes that none of the RNs initially hired by Re- spondent are still employed at the facility except for one, who 5 Only RNs are permitted under their license to administer a bolus or “IV push” medication through an IV line, as opposed to medication administered via an IV pump. 6 Illis testified that the LPNs were not instructed to train the RNs, only to provide an orientation to the facility and patients, but also stated that she had no personal knowledge of what actually occurred during the initial interactions between the LPNs and the agency RNs. All of the agency RNs Mangal and D’Ovidio referred to during their testimo- ny are no longer employed at the facility. 1621 ROUTE 22 WEST OPERATING CO., LLC 491 at the time of the hearing was suspended and on a final warning for permitting a patient to go outside the facility in order to smoke a cigarette, providing them with cigarettes and a lighter, in violation of Respondent’s policies.7 Dr. Edward Buch, a general and vascular surgeon who had provided wound care at Somerset Valley from about the spring of 2010 until the fall of 2011, testified regarding the impact of the transition from LPNs to RNs on patient care. Dr. Buch testified that his practice at Somerset Valley focused on wound care, including bed sores, leg wounds, and surgical wounds, and that he visited the facility once a week. Dr. Buch testified that he ended his relationship with Respondent because the care he was able to provide began deteriorating when D’Ovidio was removed from her wound care duties and replaced with other nurses who did not share her expertise. According to Dr. Buch, eventually there were nurses assigned to his wound care pa- tients who had no clinical experience with major wounds or dressings at all. Dr. Buch testified that he communicated his dissatisfaction with the lack of trained nurses and its impact on care to two different directors, to no avail, and eventually ended his association with Respondent and stopped referring patients there. Dr. Buch testified that in his opinion, in the context of Respondent’s patient population and the care being provided, a nurse’s professional qualification was irrelevant in light of their practical experience and knowledge of the particular patient. E. The Discharge of Irene D’Ovidio and Maharanie Mangal D’Ovidio and Mangal had both been employed by Respond- ent for a number of years. Mangal worked as a CNA for 7 years before becoming an LPN in May of 2009, and worked as a floor nurse until her discharge on November 17, 2011. D’Ovidio began her employment with Respondent as an LPN floor nurse in August 2002, and was employed as a nurse until her discharge on August 18, 2011. D’Ovidio also had specific duties as a wound care nurse and MDS assistant, in conjunction with the special wound care program directed by Dr. Buch. These duties ended in January 2011, at which point D’Ovidio returned to her floor nurse position. D’Ovidio testified that on August 18, 2011, she noticed when arriving at work that an extra nurse had been assigned to the day shift. Soon after she had arrived, Grasso called her into the office, and Illis was also present. Illis told D’Ovidio that the facility was moving in a different direction, and that D’Ovidio “wasn’t part of the plan.” Illis told D’Ovidio to hand in her keys and badge, and said that D’Ovidio could not return to or call the facility again.8 Mangal had a number of conversations with Respondent’s managers regarding the elimination of the LPN positions and transition to an all-RN model of care prior to her discharge. 7 The evidence also establishes that this RN had been disciplined previously for eight medication errors. 8 The evidence establishes that D’Ovidio received a verbal warning in early spring 2011 for failing to provide documents in a timely man- ner, specifically a summary of wound care treatments that she had already performed. Although D’Ovidio prepared and submitted this summary on a daily basis, it was not a part of any patient’s official medical record. In any event, the evidence does not establish that this verbal warning played any role in D’Ovidio’s discharge. Mangal testified that some time during August 2011, she spoke to Ruth Roper Brown, who was then the DON, about a friend who was interested in working for Respondent. Roper Brown asked whether Mangal’s friend was an LPN or an RN, and told Mangal that Respondent was only hiring RNs with a Bachelor of Arts degree. Later that month, Grasso called Mangal to her office, and told Mangal that there were only two LPNs still employed at Somerset Valley. Grasso told Mangal that in order to remain employed she would have to enroll in an RN program as soon as possible. Mangal responded that she was interested in becoming an RN and would investigate the programs availa- ble. Grasso testified that during this conversation she told Mangal that Mangal needed to enroll in an RN program for the fall semester in order to remain employed. Illis testified that she also spoke with Mangal prior to leaving the Administrator position in August 2011, and was under the impression that Mangal had enrolled in an RN program. Illis testified that she discussed the issue with Engram, Grasso, and Hutchens. After her discussion with Grasso, Mangal began contacting educational institutions to obtain information about RN pro- grams. Mangal was told that it was too late at that point to enroll for the fall semester, but she would be able to enroll to begin the coursework the following spring. Mangal also dis- covered that she would be required to complete a number of prerequisite courses when beginning the degree program.9 Mangal testified that toward the end of August 2011, Roper Brown asked whether she was enrolled in an RN program, and Mangal explained that it was too late for her to enroll for the fall semester, that she would have to enroll for the spring, be- ginning with the prerequisite courses. Mangal testified that during the first week of October 2011, Roper Brown provided her with a card containing information about a college network for an RN program. Mangal investigated this program, but found that its cost was prohibitive, and felt that she would be more successful with a live teaching format, as opposed to clas- ses conducted electronically. Grasso testified that she was not aware of these impediments to Mangal’s enrolling in the col- lege network RN program. Mangal testified that approximately 2 weeks prior to her dis- charge, she spoke to Hutchens while distributing medications on the floor. Hutchens asked Mangal whether she was enrolled in an RN program, and Mangal told him that it was too late to enroll for the fall semester, but she intended to enroll to begin in the spring. On October 17, 2011, Grasso called Mangal into her office. Grasso told Mangal that she was “the last one stand- ing,” and that she would have to let Mangal go if Mangal had no proof that she was enrolled in an RN program. Mangal testi- fied that she tried to explain that she intended to enroll for the spring semester, but eventually asked Grasso whether she was firing her. Grasso said that she was discharging her because she had no proof of her enrollment in an RN program. The Termination Personnel Action Form Grasso signed that day 9 D’Ovidio testified that she is currently enrolled in a program to ob- tain an Associate’s Degree and become an RN. D’Ovidio testified that the application process took 4 weeks, and that completion of the pre- requisites for the program will take 9 months. 492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD states that Mangal was discharged because she had not enrolled in an RN program. F. Respondent’s Decision to Eliminate the LPN Classification and Move to an All-RN Model Danette Manzi, executive vice president of operations for both Healthbridge Management and CareOne Management, testified that in May 2011 she made the determination to elimi- nate the LPN job classification at Somerset Valley, and to have RNs perform the floor nurse work formerly performed by the LPNs. Manzi testified that she made this decision after discus- sions with Hutchens, who was concerned that Somerset Valley was providing services similar to its competitors, and that all of the competing facilities were accepting the same types of pa- tients. Manzi testified that in Hutchens’s opinion Somerset Valley needed to provide a unique service in relation to com- petitor businesses. Manzi and Hutchens therefore decided to, as she put it, “go all sub-acute.” Manzi testified that she be- lieved that only RNs could effectively provide the level of care required by a population of sub-acute patients, because only RNs had the assessment skills necessary to adequately address the various medical issues involved. Manzi testified that her decision to eliminate the LPN classi- fication was also based upon “concerns” she and Hutchens shared regarding the standard of care the LPNs were providing, given the number of citations and deficiencies noted in the December 2010 Recertification Survey performed by the NJDHSS.10 Manzi stated that Hutchens reported to her that some of the systems for patient care delivery at Somerset Val- ley, in particular medication administration, were not “sustain- able” with LPNs. According to Manzi, Hutchens informed her that despite teaching, training, and mentoring that Respondent had implemented, the quality of care being provided by the LPNs had not risen to an acceptable level.11 The record indicates that Hutchens received his information regarding the standard of care being provided and attempts to remedy the issues revealed in the NJDHSS surveys from Illis, who at that time was Respondent’s administrator. Illis testified that a week or two after arriving at Somerset Valley in August 2010 she determined that the LPNs were not capable of provid- ing adequate care for patients at the acuity level of the facility’s population, based upon the findings of the NJDHSS December 2009 Recertification Survey.12 Illis testified that she initially reached this conclusion after her first month at Somerset Val- ley, or in September 2010. Illis testified that she and Hutchens spoke at least once each week, and that it would be unusual if she had not informed Hutchens of this conclusion at that time. Illis testified that she subsequently attempted to remedy the problems and improve the standard of care through education and subsequently discipline. 10 This Survey identified 25 deficiencies, approximately 13 of which are attributable to the operations of the nursing department (including management and physicians). 11 Hutchens did not testify at the hearing. 12 This Survey identified six deficiencies, four of which were at- tributable to nursing department employees, including management and physicians. Two of the six deficiencies were “G” level deficiencies, indicating that they involved actual harm to a patient. After the December 2010 Survey revealed a significant number of deficiencies, Illis met with the staff on about five to seven occasions to discuss the Survey’s results. During these meetings, Illis told the staff that failure to administer medica- tions, failure to act in accordance with to resident rights, and failure to follow nursing policy and professional standards of care would be subject to disciplinary action.13 Illis testified that despite these meetings she still noticed problems involving wound care, IV care, medication management issues, and the overall standard of care being provided. She therefore con- cluded that the nursing staff was not capable of providing the level of care that the residents or patients required. Manzi testified that in May 2011 she told Hutchens that as floor nurse positions became available due to attrition, they should be offered solely to RNs. Illis testified that Hutchens subsequently informed her that the facility was moving to an all-RN model of health care delivery in order to improve the quality of care and raise standards, and that as LPNs left RNs should be hired to replace them. Although Illis informed En- gram, then the director of nursing, that the LPNs would be re- placed by RNs through attrition, no one from Respondent’s management informed the staff regarding this decision. Dr. Anthony Frisoli, who became Respondent’s associate medical director in November 2011, testified that he took that position and began admitting patients to Somerset Valley after Respondent moved to an all-RN model of health care delivery. Dr. Frisoli testified that for many years prior to this change, Respondent’s reputation in the community regarding the quality of the nursing care it provided was not very good. Dr. Frisoli testified that in his opinion, given the higher acuity level and comorbidities of patients now receiving sub-acute care at facili- ties such as Somerset Valley, an ability to perform assessments and develop care plans on an emergency basis at the RNs’ cre- dentialed level is necessary in order to provide optimal care.14 Dr. Frisoli testified that Somerset Medical Center, an acute care facility where he is an attending physician, and Bridgeway Care Center, where he serves as medical director, had both eliminat- ed LPNs from their sub-acute care areas for this reason. How- ever, Dr. Frisoli had no knowledge of Respondent’s staffing and the specific work performance of its LPNs or RNs prior to November 2011, when he became associate medical director. It is undisputed that Respondent did not provide 1199 with notice or the opportunity to bargain prior to its decision to elim- inate the LPN classification through attrition and henceforth assign the floor nurse work to RNs. The Union was notified regarding Respondent’s decision in November 2011, in the context of the 10(j) proceeding. Lightner v. Somerset Valley Rehabilitation & Nursing Center, 2012 WL 1344731 at *3, fn. 7. 13 The record does not establish that any LPNs were disciplined as a result of the patient care deficiencies Illis discussed with them between the time that the December 2010 Survey was issued and May 2011, when Manzi made the decision to eliminate the classification. 14 Frisoli testified that changes in medication require a doctor’s or- der, which can be obtained by either an LPN or an RN in the same manner. 1621 ROUTE 22 WEST OPERATING CO., LLC 493 G. Evidence Involving Respondent’s Alleged Denial of Access to 1199 On January 30, 2012, Milly Silva, 1199’s executive vice president for the New Jersey Region, wrote to Grasso and re- quested access to the bargaining unit members’ “work areas” in Respondent’s facility, “in order to observe work processes and working conditions, including health and safety conditions.” Silva asked that Grasso contact her and schedule a time for 1199 representatives to visit the facility. Elliott testified that 1199 sought access to the facility in order to conduct bargain- ing surveys regarding the employees’ terms and conditions of employment, and in order to formulate bargaining proposals, select a negotiating committee, and otherwise prepare for col- lective bargaining negotiations. Elliott stated that the Union also wanted to observe the bargaining unit employees at work, to personally observe their work environment and working conditions, and to ensure that there were no outstanding health and safety problems, such as the unavailability of Hoyer lifts which reduce the number of back injuries. Elliott testified that the bargaining unit CNAs had complained that the nursing staff was inadequate to perform all of the tasks which needed to be completed during a shift, and the Union wanted to visit the facility to determine exactly what the employees’ job assign- ments entailed. Elliott testified that 1199 also wanted to deter- mine whether the employees had access adequate supplies in order to perform their jobs. Respondent admitted in its answer that it never responded to Elliott’s request, and it is undisputed that Respondent did not provide the Union with access to the facility. III. ANALYSIS AND CONCLUSIONS A. Respondent Violated Sections 8(a)(1) and (5) of the Act by Eliminating the LPN Classification and Transferring Bargain- ing Unit Work to Non-Bargaining Unit RNs Without Providing 1199 with Notice and the Opportunity to Bargain 1. The transfer of bargaining unit work General Counsel argues that the complaint’s allegation that Respondent unilaterally transferred bargaining unit work out- side of the bargaining unit in violation of Sections 8(a)(1) and (5) of the Act is properly evaluated under Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964), and the Board’s line of cases be- ginning with Torrington Industries, 307 NLRB 809 (1992). These cases generally hold that an employer’s decision to sub- contract bargaining unit work is a mandatory subject of bar- gaining where the employer simply substitutes one group of workers for another that performs the same work, without a substantial capital input or change in the nature or type of busi- ness. See, e.g., O.G.S. Technologies, Inc., 356 NLRB 642, at p. 644–647 (2011) (subcontracting of bargaining unit die-cutting work to other firms); Sociedad Espanola de Auxilio Mutuo y Beneficencia de P.R., 342 NLRB 458, 467–469 (2004), enfd. 414 F.3d 158 (1st Cir. 2005) (subcontracting of bargaining unit X-ray technician and respiratory therapy work performed in Respondent hospital); Torrington Industries, Inc., 307 NLRB at 810811. This analysis has also been applied in cases involving the transfer of bargaining unit work to supervisors, managers, and other nonbargaining unit employees, where the work has not been subcontracted. See, e.g., St. George Warehouse, Inc., 341 NLRB 904 (2004), enfd. 420 F.3d 294 (1st Cir. 1005) (re- placement of directly employed bargaining unit warehouse employees with temporary agency employees); Regal Cinemas, Inc., 334 NLRB 304, 312–313 (2001), enfd, 317 F.3d 300 (D.C. Cir. 2003) (transfer of bargaining unit projectionist work to non-bargaining unit managers and assistant managers). General Counsel contends that here Respondent merely sub- stituted nonbargaining unit RNs for the bargaining unit LPNs, and that the RNs thereafter performed the same floor nurse work as had the LPNs, in the employer’s facility, without any substantial capital infusion or change in the nature or type of business on Respondent’s part. General Counsel further asserts that Respondent’s removal of bargaining unit work did not involve a change in the nature, scope, or direction of its enter- prise for reasons of profitability, “akin to the decision whether to be in business at all.” First National Maintenance Corp. v. NLRB, 452 U.S. 666, 667 (1981); see also O.G.S. Technologies, Inc., 356 NLRB 642, at p. 645 (2011). General Counsel there- fore argues that Respondent was not relieved of its obligation to provide 1199 with notice and the opportunity to bargain regard- ing the transfer of work outside of the bargaining unit. Respondent contends that the appropriate standard for de- termining whether it was obligated to bargain with 1199 regard- ing the transfer of bargaining unit work is the balancing test articulated in Dubuque Packing Co., 303 NLRB 386 (1991), enf. denied in part, 1 F.3d 24 (D.C. Cir. 1993), which involved a relocation of bargaining unit work. Thus, Respondent con- tends that General Counsel must first establish a prima facie case by showing that Respondent’s decision to transfer the work was not accompanied by “a basic change in the nature of the employer’s operations.” Dubuque Packing Co., 303 NLRB at 391. Respondent may counter by demonstrating that the work performed at the new location “varies significantly” from the work performed at the former site, that the work at the for- mer site was discontinued entirely, or that the relocation of the work involves “a change in the scope and direction of the en- terprise.” Id. Alternatively, Respondent may defend by estab- lishing that labor costs were not an issue in its decision, or that, in the event labor costs were a factor, the union could not have offered “labor cost concessions” sufficient to alter Respond- ent’s decision. Id. Here, Respondent argues that labor costs were not a factor in its decision to transfer bargaining unit work to non-bargaining unit RNs, and contends that its move to an all-RN model of health care delivery involved a change in the nature, scope, and direction of its business. Respondent there- fore asserts that its transfer of floor nurse work from the LPNs to RNs was not a mandatory subject of bargaining. I find that the allegations at issue here are more appropriately considered using the Fibreboard Corp. and Torrington Indus- tries, Inc. line of cases, as opposed to the Dubuque Packing Co. burden shifting analysis. I find, as argued by General Counsel, that the evidence establishes that Respondent substituted one group of employees, the nonbargaining unit RNs, for another, the bargaining unit LPNs, and that the RNs continued to per- form the floor nurse work formerly performed by the LPNs in the same location and manner. In addition, there is no evidence 494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD here that bargaining unit work was geographically relocated, as in Dubuque Packing Co. 303 NLRB at 391. As a result, the instant case is more appropriately susceptible to the Fibreboard Corp./Torrington Industries analysis, and the balancing analy- sis articulated in Dubuque Packing is inapposite. See, e.g., Sociedad Espanola de Auxilio Mutuo y Beneficencia de P.R., 342 NLRB at 467–469 (applying Fibreboard/Torrington line of cases to replacement of bargaining unit employees with sub- contractor employees who performed work in employer’s fa- cility); St. George Warehouse, Inc., 341 NLRB at 904 (transfer of bargaining unit work performed in employer’s facility to temporary agency employees analyzed under Fibre- board/Torrington standard). In particular, I concur with General Counsel that the facts at issue here are similar to the scenario addressed in St. George Warehouse, Inc., where bargaining unit employees were effec- tively replaced through attrition by temporary agency employ- ees, which had been explicitly excluded from the bargaining unit, and ultimately performed the same work in the employer’s facility. 341 NLRB at 904, 924. Here Respondent did exactly that, replacing LPNs as they resigned or were discharged with RNs from an agency, and then hiring RNs directly to perform the floor nurse work previously performed by the LPNs on a permanent basis. Eventually the LPNs, a group of employees explicitly included in the certified bargaining unit, had been entirely replaced by RNs, a job classification which had been explicitly excluded. Furthermore, Respondent has not provided any evidence of a substantial capital outlay which accompanied its shift to an all-RN model of health care delivery or, as dis- cussed in further detail below, a change in the nature or type of its business. As a result, I find that Respondent’s transfer of bargaining unit work was a mandatory subject of bargaining under the Fibreboard/Torrington standard. Respondent also contends that it was not obligated to bargain with 1199 because the transfer of bargaining unit floor nurse work was effected in conjunction with a change in the nature, scope and direction of its overall enterprise, citing First Na- tional Maintenance Corp. v. NLRB, 452 U.S. at 677. In First National Maintenance Corp., the Supreme Court held that deci- sions which affect conditions of employment but involve such a change, “akin to the decision whether to be in business at all,” are not ultimately based upon conditions of employment, and are thus not amenable to the collective-bargaining process. 452 U.S. at 677–678, 687. However, I find that the evidence does not substantiate this contention. The evidence establishes that Respondent is providing the same services, sub-acute and long-term health care, with employees who perform the same patient care tasks with the same equipment and materials. O.G.S. Technologies, Inc., 356 NLRB 642 at p. 645; Torrington Industries, 307 NLRB at 810. There is no evidence that Respondent has aban- doned a line of business or otherwise made a change in its overall scope of its operations, made a substantial capital com- mitment, or implemented more sophisticated technologies which have changed the nature of its business. O.G.S. Tech- nologies, Inc., 356 NLRB 642 at p. 645. Respondent’s princi- pal contention in this regard is that it is no longer accepting long-term care patients, and is seeking to become a facility which provides sub-acute care only. However, the testimony at the hearing established that Respondent has never had more than a handful of long-term care patients, and that the majority of the patients for which it provided care required sub-acute services. In addition, Respondent’s website, as of May 9, 2012, states that it offers “complete clinical programs” in not only sub-acute but also long-term care (GC Exh. 12, p. 1), and a brochure distributed during Illis’s tenure as administrator ad- vertises long-term care services as well (R.S. Exh. 13, p. 5). Nor did the elimination of Respondent’s wound care program, which involved one attending physician and one LPN, consti- tute a fundamental change in its business. As a result, the evi- dence overall establishes that Respondent continues to operate the same facility, providing the same health care services in the same manner that it has for a number of years, to a substantially similar patient population in terms of overall acuity level. The evidence fails to establish a change in the nature, type, scope, or direction of the business under either Fibreboard/Torrington or First National Maintenance which would exempt the trans- fer of work from Respondent’s obligation to bargain. Respondent also contends that its transition to an all-RN model of staffing was a change in the nature, scope and direc- tion of its business because it was implemented based upon a concern with reducing rates of readmission to hospitals from which its patients had been referred, pursuant to ongoing regu- latory changes. Respondent contends that its replacement of LPNs with RNs was therefore ultimately effected based upon concerns regarding the quality of care it was able to provide in light of the implementation of new regulations, as opposed to issues involving labor costs. However, the Board has on sever- al occasions found that subcontracting decisions constitute a mandatory subject of bargaining despite employer contentions that the decisions were motivated by concerns unrelated to labor costs, such as the speed of the work performed, the sea- sonal nature of the business, equipment out of compliance with regulatory standards, or difficulties in obtaining adequate staff.15 See O.G.S. Technologies, Inc., 356 NLRB 642, . 645– 646; Sociedad Espanola de Auxilio Mutuo y Beneficencia de P.R., 342 NLRB at 468–469; Torrington Industries, 307 NLRB at 810–811. In addition, Respondent offered no evidence to demonstrate how new protocols being developed to reduce readmission rates would affect the actual day-to-day work performed by its em- 15 Respondent relies on two decisions of the United States Court of Appeals for the Third Circuit which criticized the Board’s Fibre- board/Torrington analysis, and ultimately found that specific subcon- tracting decisions were not in fact mandatory subjects of bargaining. In Dorsey Trailers, Inc. v. NLRB, 134 F.3d 125 (1998), and Furniture Rentors of America, Inc. v. NLRB, 36 F.3d 1240 (1994), the Third Circuit rejected the Board’s application of the Fibreboard/Torrington analysis, and instead considered whether the employers were motivated by labor cost issues amenable to collective bargaining, or other, entre- preneurial, factors. However, the Board has declined to apply the anal- ysis articulated by the Third Circuit in these cases in favor of the tradi- tional Fibreboard Corp./Torrington Industries analysis. See Overnite Transportation Co., 330 NLRB 1275, 1276–1279 (2000), affd. and revd. in part, 248 F.3d 1131 (3rd Cir. 2000). As a result, they are inap- posite here. 1621 ROUTE 22 WEST OPERATING CO., LLC 495 ployees, or require the services of RNs, as opposed to LPNs. In fact, Dr. Frisoli’s testimony established that, as of the time of the hearing, these new protocols were still in the process of being developed. The testimony at the hearing establishes that RNs are capable of performing three functions that LPNs may not under their respective licensesadministering an “IV push,” making a pronouncement of death, and developing a plan of care for the patient based upon a more interpretive as opposed to observational assessment. Dr. Frisoli testified that the RNs’ ability to develop a plan of care in emergent situations was most critical to providing a standard of care appropriate to sub- acute patients, and a significant component of his preference for working with RNs as opposed to LPNs. However, Re- spondent provided no evidence to substantiate how the RNs’ superior assessment capabilities, or their other additional func- tions, were necessary to the protocols being developed, or to the reduction of readmission rates overall given the daily work of the floor nurses.16 This is particularly the case because the record establishes that Respondent had always employed RNs in addition to LPNs. As a result, I find that the evidence is insufficient to substantiate Respondent’s claim that the effort to reduce hospital readmission rates, and admittedly evolving protocols, required the replacement of Respondent’s LPNs with RNs as part of a change in the nature, scope, and direction of Respondent’s business. I therefore find that Respondent’s transfer of bargaining unit LPN work to nonbargaining unit RNs was a mandatory subject of bargaining, regardless of its purported genesis in quality of care concerns. For all of the foregoing reasons, the evidence establishes and I find that Respondent’s transfer of floor nurse work from bar- gaining unit LPNs to nonbargaining unit RNs was a mandatory subject of bargaining. As a result, I find that Respondent’s failure to provide 1199 with notice and the opportunity to bar- gain regarding the decision to transfer bargaining unit work violated Sections 8(a)(1) and (5) of the Act. 2. The elimination of the LPN classification General Counsel contends that Respondent violated Sections 8(a)(1) and (5) of the Act by unilaterally eliminating the LPN job classification, which is explicitly included in the bargaining unit certified by the Board in its August 26, 2011 Decision. It is well-settled that the unilateral removal of a position which has been explicitly included within the scope of a bargaining unit, either by the parties’ consent or the Board’s processes, violates Sections 8(a)(1) and (5). Wackenhut Corp., 345 NLRB 850, 852 (2005); Mt. Sinai Hospital, 331 NLRB 895 fn. 2 (2000). Respondent argues that it was not obligated to bargain with 1199 regarding the decision to eliminate the LPN classifi- cation because the decision was made in May 2011, while Re- spondent’s Objections to the conduct of the election were pend- ing before the Board, and because it has petitioned for review of the Board’s August 26, 2011 Decision certifying 1199 as exclusive bargaining representative. However, it is well settled that Respondent’s bargaining obligation attached as of the date 16 For the reasons discussed in Sec. III(B)(3), below, the evidence does not substantiate Respondent’s contention that 30-day readmission rates were in fact reduced as a result of the transfer of floor nurse work from LPNs to RNs. of the election, September 2, 2010, and was not suspended pending the outcome of subsequent litigation. See, e.g., Jason Lopez’ Planet Earth Landscape, 358 NLRB 383, at p. 392 (2012); Alta Vista Regional Hospital, 357 NLRB 326, at p. 327 (2011), enfd. 697 F.3d 1181 (D.C. Cir. 2012). Respondent argues that it was relieved of any obligation to bargain with 1199 because its elimination of the LPN classifi- cation was motivated by “compelling economic circumstanc- es.” Mike O’Connor Chevrolet, 209 NLRB 701, 703 (1974). Respondent argues that the compelling economic circumstances it faced involved the improvement of patient care and a need to “position itself in the marketplace as an all-subacute facility.” However, Respondent offers no substantive evidence to support this contention, only the argument that the purportedly lower standard of care provided by the bargaining unit LPNs could have resulted in regulatory sanctions and penalties, which in turn could have had a detrimental impact on Respondent’s overall financial condition. This sort of hypothetical specula- tion is insufficient to establish that compelling economic cir- cumstances excused Respondent from its obligation to bargain. See Jason Lopez’ Planet Earth Landscape, 358 NLRB 383, at p. 393 (“self-serving and conclusory statements” insufficient to establish compelling economic circumstances, where record was devoid of evidence “showing extraordinary, unforeseen events occurring that had a major economic effect on the Re- spondent”). As a result, I find that Respondent’s elimination of the bargaining unit LPN classification was a mandatory subject of bargaining, and that by doing so without providing 1199 with notice and the opportunity to bargain, Respondent violated Sections 8(a)(1) and (5) of the Act. B. Respondent Violated Sections 8(a)(1) and (3) of the Act by Eliminating the LPN Classification and Transferring Bargain- ing Unit Work to Non-Bargaining Unit RNs in Retaliation for its Employees’ Union Activity 1. The applicable legal standard Under Section 8(a)(3) of the Act, an employer may not dis- criminate with regard to the hire, tenure, or any term or condi- tion of employment in order to encourage or discourage mem- bership in a labor organization. In order to determine whether a transfer of bargaining unit work violated the Act in this manner, the Board applies the analysis articulated in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied, 455 U.S. 989 (1982), approved in NLRB v. Transporta- tion Management Corp., 462 U.S. 393 (1983). See, e.g., Gaetano & Associates, 344 NLRB 531, 533–534 (2005), enfd. 183 Fed.Appx. 17 (2nd Cir. 2006) (applying Wright Line analy- sis to allegation of retaliatory subcontracting); St. Vincent Med- ical Center, 338 NLRB 888, 892 (2003), enf. denied and re- manded, 463 F.3d 909 (9th Cir. 2006). To establish unlawful activity under Wright Line, the General Counsel must first prove, by a preponderance of the evidence, that the employees’ union sympathies or activities were a substantial or motivating factor in the employer’s decision here the decision to eliminate the LPN classification and transfer the floor nurse work the LPNs performed to nonbargaining unit RNs. Manno Electric, Inc., 321 NLRB 278, 280 (1996). The General Counsel makes a showing of discriminatory motivation by proving employee 496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD union support or activity, employer knowledge of that activity, and animus against protected employee conduct. Gaetano & Associates, 344 NLRB at 533; see also Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999). Proof of an employer's motive may be based upon direct evidence or can be inferred from circumstantial evidence, based on the record as a whole. Ronin Shipbuilding, 330 NLRB 464 (2000); Robert Orr/Sysco Food Services, 343 NLRB 1183 (2004). If the General Counsel is successful, the burden of persua- sion then shifts to the employer to show that it would have taken the same action even in the absence of the employees’ union support or activities. Gaetano & Associates, 344 NLRB at 533; St. Vincent Medical Center, 338 NLRB at 888 fn. 4; Wright Line, 251 NLRB at 1089. Once the General Counsel has met its initial burden under Wright Line, an employer does not satisfy its burden merely by stating a legitimate reason for the action taken, but instead must persuade by a preponderance of the credible evidence that it would have taken the same ac- tion in the absence of the protected conduct. St. Vincent’s Med- ical Center, 338 NLRB at 888 fn. 4, 894895; T&J Trucking Co., 316 NLRB 771 (1995). When General Counsel presents a strong prima facie showing of discrimination, Respondent’s burden in this regard is “substantial.” Vemco, Inc., 304 NLRB 911, 912 (1991). 2. General Counsel has established a prima facie case General Counsel has established a prima facie case that Re- spondent eliminated the LPN classification, and transferred the bargaining floor nurse unit work previously performed by LPNs to nonbargaining unit RNs, in retaliation for the LPNs’ union activities. The evidence establishes that Respondent was aware, beginning at the very least with the filing of the petition for a representation election on July 22, 2010, that its employ- ees were engaged in union activity. In particular, the three principal employee advocates for 1199 discharged by Respond- entSheena Claudio, Shannon Napolitano, and Jillian Jacque- swere LPNs. Somerset Valley Rehabilitation & Nursing Cen- ter, 358 NLRB 1361, at p. 674, 675, 676, 687. As discussed above, significant litigation regarding the election, certification and Respondent’s unfair labor practices has followed. In addi- tion, at the time that the LPNs’ work was transferred, and the position eliminated, General Counsel and Respondent were involved in an ongoing proceeding for injunctive relief under Section 10(j) to reinstate the three LPNs. As a result, Respond- ent’s knowledge of the LPNs’ union activities at the time their work was transferred and the classification eliminated is indis- putable. The Board’s findings in the previous case evince Respond- ent’s animus toward the union activities of its employees, and the union activities of the LPNs in particular. See, e.g., St. George Warehouse, 349 NLRB 870, 878 (2007) (relying on previous Board decision finding violations of Sections 8(a)(1) and (3) as evidence of animus); Wallace International de Puer- to Rico, 324 NLRB 1046 fn. 1 (1997) (same). As discussed above, the Board explicitly affirmed Judge Davis’s conclusion that Respondent’s antiunion animus was “beyond question,” as well as his findings that Respondent committed multiple viola- tions of Sections 8(a)(1) and (3), including unlawful discharges, discipline, reduction of employee hours, interrogations and solicitation of employee complaints and grievances, which took place in the fall of 2010. Somerset Valley Rehabilitation & Nursing Center, 358 NLRB 1361, at p. 1361. The evidence in that case also establishes that Hutchens, who was involved in the determination to eliminate the LPN classification and trans- fer work, personally committed violations of Section 8(a)(1), instructing managers to obtain information as to how they be- lieved the employees under their supervision would vote, re- quiring that managers provide a basis for their predictions, and soliciting employee grievances, promising increased benefits and improved terms and conditions of employment. Somerset Valley Rehabilitation & Nursing Center, 358 NLRB 1361, at p. 685, 686. In addition, the Board found that Illis, the Adminis- trator at the time of the decision at issue here, repeatedly inter- rogated an employee, accelerated the employee’s resignation, unlawfully solicited employee grievances, and subjected em- ployees to increased disciplinary scrutiny. Somerset Valley Rehabilitation & Nursing Center, 358 NLRB 1361, at p. 688, 690, 691. Illis was also directly involved in unlawful written discipline, and asked a supervisor to prepare a list of potential per diem employees who would vote against the Union if a new election were held. Id. As a result, the evidence is more than sufficient to demonstrate Respondent’s animus against the em- ployees’ union activity, and the active participation by Hutch- ens and Illis in unlawful conduct designed to thwart it. I further find that the timing of Respondent’s transfer of bar- gaining unit LPN work militates substantially in favor of a finding that Respondent’s decision was unlawfully motivated. See St. Vincent Medical Center, 338 NLRB at 893 (considering the timing of employer’s subcontracting in order to determine unlawful motivation). The administrative hearing before Judge Davis opened on April 27, 2011, and the Regional Director’s petition for injunctive relief pursuant to Section 10(j), including the interim reinstatement of the three LPNs that were 1199’s principal employee advocates, was filed at around that time. Somerset Valley Rehabilitation & Nursing Center, 358 NLRB 1361, at p. 1364; Lightner v. Somerset Valley Rehabilitation and Nursing Center, 2012 WL 1344731. Manzi testified that she made the decision to eliminate the LPN classification, and transfer the work previously performed by the LPNs to RNs by attrition, in May 2011, only weeks afterward. Such timing is evidence of unlawful motivation. Relco Locomotives, Inc., 358 NLRB 298 (2012), at p. 310–311 (timing of discipline imposed two months after employer learned of protected activities and two weeks after representation election suspect); St. Vincent Medical Center, 338 NLRB at 893 (subcontracting of bargain- ing unit work 3 weeks after representation election “suspi- cious”). In addition, the administrative proceeding continued throughout the summer of 2011. Somerset Valley Rehabilita- tion & Nursing Center, 358 NLRB 1361, at p. 1364. However, the evidence establishes that it was not until November 2011, in the context of the 10(j) proceeding, that Respondent informed the General Counsel and 1199 that it had in fact eliminated the LPN position and transferred by attrition the floor nurse work formerly performed by the LPNs to RNs explicitly excluded from the bargaining unit. This sequence of events, together with the evidence of animus discussed above, is sufficient to 1621 ROUTE 22 WEST OPERATING CO., LLC 497 generate the inference that Respondent transferred the work of the LPNs to RNs in retaliation for the LPNs’ union activity, and in order to avoid reinstating them should the General Counsel obtain an order in the 10(j) proceeding requiring that it do so. For all of the foregoing reasons, I find that General Counsel has established a strong prima facie case that Respondent elim- inated the LPN classification and transferred bargaining unit work to nonbargaining unit RNs in retaliation for the union activities of the LPNs who had previously performed it. 3. The preponderance of the evidence does not support Re- spondent’s contention that it would have transferred bargaining unit work in the absence of the employees’ union activity Respondent contends that it transferred the bargaining unit floor nurse work formerly performed by the LPNs to RNs as part of an effort to offer a unique service in comparison to competitor facilities by providing solely sub-acute care. Re- spondent claims that RNs’ higher level of education and cre- dentialing, and ability to perform a more extensive assessment and develop a plan of care, made them a more appropriate clas- sification for a population consisting solely of sub-acute pa- tients. Respondent also asserts that it eliminated its LPNs and transferred their work in response to the results of NJDHSS Surveys conducted in December 2009 and 2010. Respondent argues that the deficiencies revealed by these surveys led it to conclude that the acuity level of its patients was too intense for LPNs, as opposed to RNs, to provide adequate care. I find that the preponderance of the record evidence ultimately does not substantiate these claims. Respondent presented evidence that RNs have more extensive education, and are permitted to per- form more sophisticated evaluations of patient status and a wider range of procedures than LPNs. Respondent also pre- sented evidence of a general trend, at least in the acute care setting, toward employing solely RNs. However, the prepon- derance of the evidence overall does not ultimately support Respondent’s contention that it made the specific determination in May 2011 to eliminate the LPN classification at Somerset Valley, and transfer the bargaining unit floor nurse work to RNs, as a result of those general factors. The evidence, as discussed in Section III(A)(1), above, does not substantiate Respondent’s assertion that it eliminated the LPN classification and transferred the work to nonbargaining unit RNs because it ceased to provide long-term care, creating an exclusively sub-acute patient population. The evidence establishes that both before and after the elimination of the LPN position and transfer of work, Respondent provided care to a population of predominantly sub-acute patients, with a few long-term patients who had resided at the facility for a number of years. There is simply no evidence of any change in Re- spondent’s patient population, let alone the sort of dramatic change which would establish that it eliminated the LPN posi- tion and transferred the work outside the bargaining unit for legitimate, nondiscriminatory reasons. Respondent’s claim that it eliminated the LPNs and transferred their work because of a change in the overall acuity level of its patient population is therefore not supported by the record. In addition, although Respondent contends that it no longer accepts long-term care patients, a brochure advertising such services was disseminated during Illis’ tenure as Administrator, and as of May 2012, its website indicated that it provided long-term as well as sub- acute care. Respondent also argues that its elimination of the LPN posi- tion and transfer of the work to RNs was consonant with broad- er trends in patient care delivery emphasizing a preference for RNs, given their education and the scope of their licensure, particularly in acute care facilities. For example, Respondent’s associate medical director, Dr. Anthony Frisoli, testified that in his experience and opinion RNs can more reliably provide a higher standard of care overall, regardless of their individual experience.17 Dr. Frisoli testified that the general trend in health care delivery, particularly in acute care facilities, is to maintain a nursing staff consisting solely of RNs. Respondent also notes that Kathleen Martin, who was called by General Counsel as an expert witness in the areas of long-term care nursing administration, nursing practices, and State survey requirements, testified during the 10(j) proceeding that given their additional education, a staff consisting of solely RNs would be optimal, all else being equal, for patient care stand- ards.18 R.S. Exh. 21, p. 52, 201–204. However, regardless of the general evidence regarding overall trends in health care delivery involving RNs and LPNs, the preponderance of the record evidence does not establish that Respondent made the specific decision in May 2011 to eliminate the LPN position and transfer the floor nurse work performed by the LPNs for- merly employed to nonbargaining unit RNs for that reason. Instead, the timing of the decision in the context of the litiga- tion following the Union’s organizing campaign and certifica- tion, and the animus with which Respondent targeted the LPNs as found by the Board, strongly indicates that Respondent’s decision in May 2011, was made for unlawful, retaliatory rea- sons. Given this background, the specific evidence Respondent presented regarding its decision-making process is inadequate to establish that Respondent legitimately concluded in May 2011 that LPNs were incapable of competently providing care to the acuity level of its patient population. For example, Man- zi initially testified that she made the decision to eliminate the LPN classification because of the facility’s transition to a popu- lation of solely sub-acute patients, a transition which the evi- dence does not establish actually occurred. Although Manzi then testified that she and Hutchens also decided that LPNs could not provide adequate care for Respondent’s patient popu- lation based upon the results of the NJDHSS December 2010 Survey, this rationale was elicited after a specific suggestion by Respondent’s counsel (Tr. 541). Indeed, in the previous case Hutchens apparently testified that “it was ‘common’ for a fa- cility to be cited for deficiencies in a survey,” which contradicts 17 I note that opinions on this issue vary, as Dr. Buch testified that he considers the specific degree and license held by a particular nurse to be less important than their actual experience in terms of their overall competence. 18 I note that during her testimony Ms. Martin emphasized that she was basing this opinion on an assumption that the facility employs the same number of RNs as they would have employed LPNs, and stated that this was unlikely for budgetary reasons, given the higher compen- sation required for RNs. R.S. Exh. 21, p. 203. 498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent’s argument that it decided to implement a signifi- cant reconfiguration of its employee complement on that basis. Somerset Valley Rehabilitation & Nursing Center, 358 NLRB 1361, at p. 1367. In addition, the 2010 Survey, while contain- ing more citations than the 2009 Survey overall, did not contain any citations at the “G” level, which denotes a situation involv- ing actual harm to a patient. In any event, if the December 2010 survey formed the basis for Hutchens and Manzi’s deci- sion to replace the LPNs with RNs, no explanation was provid- ed as to why Manzi waited five months to do so, given the pur- ported gravity of the situation. Illis’s testimony regarding her assessment of the LPNs’ work performance and the standard of care being provided only com- plicates the scenario further. Manzi testified that all of the information she relied on to conclude that the LPNs should be replaced with RNs was provided by Hutchens, who told her that despite teaching and training provided to the LPNs, certain care delivery systems such as medication administration were not “sustainable.” In the absence of any evidence to the contrary, it is reasonable to assume that Hutchens obtained whatever in- formation he used to determine that LPNs were fundamentally inadequate and required wholesale replacement from Illis, who testified that as Administrator she reported to him directly and spoke to him every week. Illis also testified, however, that she first reached the conclusion that LPNs were not capable of adequately providing care to Respondent’s patient population given its overall acuity level 1 to 2 months after becoming Re- spondent’s administrator in August 2010. Illis testified that she formed her opinion based upon the results of the December 2009 NJDHSS Survey, and that she probably communicated this conclusion to Hutchens immediately after she reached it. However, for reasons unexplained by Manzi or any of Re- spondent’s other witnesses, the determination to replace LPNs with RNs was not made for another 7 months. Given what Respondent contends is the severity of the issue in terms of its regulatory status and financial situation, its unexplained delay in addressing what it contends was the wholesale inadequacy of the LPNs as a classification militates against a finding that its asserted reason for replacing them with RNs was legitimate.19 The record also does not substantiate Illis’ testimony, and Hutchens’ assertion (according to Manzi), that the LPNs re- ceived additional training, education, and discipline in an at- tempt to raise the standard of care prior to Respondent’s ulti- mate decision that LPNs simply could not cope with the acuity 19 I also do not find the material contained in 2011 Objectives form, dated June 25, 2011, to be probative in this regard. The 2011 Objec- tives form indicates that the level of acute discharges at that time was engendered by a “lack of RNs on all shifts to do comprehensive as- sessments,” and that problems with “Level One Basic Require- ments/Center Level Certification” were caused by the need for an “Acuity Based Staffing Model.” However, Illis testified that Engram, who was the administrator at that time, completed the 2011 Objectives form, and Engram did not testify at the hearing. Illis testified that she did not know what Engram meant specifically by her statement that there was a lack of RNs on all shifts to do comprehensive assessments, nor did she know what was meant by “Level One Basic Require- ments/Center Level Certification.” As a result, I find that the responses contained in the 2011 Objectives form have little probative value. level of its patient population. The evidence establishes that the sole training and education the LPNs received after the NJDHSS December 2010 Survey was a series of meetings Illis conducted with the nursing staff to discuss the agency’s find- ings. The record establishes that this was the only training or education provided to the LPNs between the December 2010 Survey, supposedly the impetus for Manzi and Hutchens’ con- clusion that LPNs were incapable of providing adequate care for a sub-acute patient population, and Respondent’s eliminat- ing the entire classification. Illis contended in her testimony that she decided to implement educational and disciplinary measures after the December 2009 Survey indicated that the LPNs were incapable of providing patient care to an adequate standard. However, the Board found in the previous case that Respondent increased its scrutiny of the employees’ work per- formance only in response to the representation election in September 2010, and not immediately after the December 2009 Survey or in response to the citations the NJDHSS issued. Somerset Valley Rehabilitation & Nursing Center, 358 NLRB 1361 at p. 1362–1363, 1388–1389. In fact, it appears from the Board’s previous decision that a significant amount of the dis- ciplinary action taken by Respondent against the LPNs during the period August 2010 through May 2011 was imposed for unlawful, retaliatory reasons.20 Somerset Valley Rehabilitation & Nursing Center, 358 NLRB 1361 at p. 1361–1364, and at p. 1361, fn. 3. All of this evidence undermines Respondent’s contention that it eliminated the LPN classification and trans- ferred the work performed to non-bargaining unit RNs based upon legitimate, nondiscriminatory concerns regarding quality of care. Nor does the record contain any evidence that Manzi, Hutch- ens, or Illis considered factors, other than the purported inade- quacy of the LPNs, in evaluating the problems revealed by the NJDHSS Survey citations. For example, there is no evidence that Respondent discussed or considered whether the near- continuous turnover in Nursing Department management—the positions of DON, ADON, and unit manager—contributed to the standard of care the Department’s employees were able to provide. Indeed, Hutchens testified in the previous case that former Administrator Elizabeth Heedles was replaced by Illis in August 2010 due to his “concerns” regarding Heedles’ “admin- istrative abilities,” as evinced by inadequate staff to resident ratios attributable to her “struggling” to staff and schedule the 20 The Board’s decision indicates that Respondent legitimately is- sued a written warning issued to LPN Sheena Claudio for a medication error in September 2010. Somerset Valley Rehabilitation & Nursing Center, 358 NLRB 1361, at p. 1361, fn. 3. Judge Davis’ decision also indicates that Respondent also disciplined another “nurse,” Doreen Dande, for a similar medication administration error, but it is not clear whether Dande was an LPN or an RN, or when Dande was disciplined. Somerset Valley Rehabilitation & Nursing Center, 358 NLRB 1361, at p. 1375, 689. The record in the instant case establishes that D’Ovidio received a verbal warning in the early spring of 2011 for failing to timely provide a daily summary of treatments administered to wound patients; the General Counsel does not allege that this warning was issued for retaliatory reasons. 1621 ROUTE 22 WEST OPERATING CO., LLC 499 facility.21 Somerset Valley Rehabilitation & Nursing Center, 358 NLRB 1361, at p. 1367. Although Illis and Dr. Frisoli testified that the incessant managerial turnover in the Nursing Department could have affected the quality of the nursing care provided, there is no evidence that Respondent considered this factor at all. Similarly, although Illis admitted during her tes- timony that there were problems with the work performance of both LPNs and RNs which the NJDHSS surveys documented, there is no evidence as to why Respondent focused on the LPNs, as opposed to RNs, as the ultimate source of the prob- lem. Illis also admitted that Respondent had not fully imple- mented other programs designed by CareOne Management and/or Healthbridge Management in order to improve quality of care and reduce readmission rates, such as 72-hour care plan meetings and Interact II.22 In fact, during her testimony Kristi- na Grasso attributed a purported improvement in readmission rates in January 2012 to additional in-service training in the Acute Transfer Alternative program, or ATAP. Finally, despite the critical nature of the problems allegedly caused by the LPNs’ inability to provide care at the acuity level required and her weekly conversations with Hutchens, Manzi testified that she had no knowledge as to whether the RNs who replaced the LPNs as floor nurses had received discipline based upon work performance issues. Indeed, Manzi admitted that she never even inquired as to whether the RNs at Somerset Valley were performing at a higher level overall than had the LPNs. And in fact, the evidence does not establish that this was the case. Respondent’s witnesses testified primarily regarding differences in the education, training, and licensure of RNs, as opposed to their actual work performance at Respondent’s fa- cility. Dr. Frisoli’s testimony regarding his overall preference for working with RNs for example, was articulated in that man- ner. As a result, I credit Mangal and D’Ovidio’s testimony that some of the RNs which replaced the LPNs at Respondent’s facility, both those initially referred from an agency beginning in the spring of 2011 and those hired to replace the agency RNs as employees, had to be shown how to begin IVs, administer dialysis, perform pleural evacuation and tracheostomy suction- ing, and perform wound care. Indeed, the evidence demon- strates that the only one of the initial employee RNs still em- ployed by Respondent is suspended and on a final warning for permitting a patient to leave the facility in order to smoke a cigarette, and has committed eight medication errors. I also credit the testimony of Dr. Buch that wound care deteriorated after D’Ovidio was replaced with nurses who did not share her expertise, and that eventually his wound care patients were assigned nurses who had no clinical experience with major 21 Respondent’s then-DON, Kamala Kovacs, was dismissed at this time as well. Somerset Valley Rehabilitation & Nursing Center, 358 NLRB 1361, at p. 1367. 22 According to Illis, 72-hour care plan meetings were supposed to take place in order to formulate the initial care plan for every patient admitted, but were not being held on a consistent basis. Interact II was a program intended to monitor a patient’s condition and assessment, which provided education to nurses regarding effective communication with physicians when a patient’s condition changed. Although Interact II was to have been implemented in the spring of 2011, according to Illis it was delayed. wounds or dressings at all. I further credit Dr. Buch’s testimo- ny that he ended his association with Respondent, and no long- er refers patients there, as a result. Furthermore, the December 2011 NJHSS Survey, while significantly improved over the December 2010 Survey, contains as many citations attributable to the operations of Respondent’s Nursing Department as did the December 2009 survey, when the majority of the patient care was provided by LPNs (although none of the December 2011 citations involve actual patient harm). Indeed, the De- cember 2011 survey found deficiencies in specific areas, such as assessments of functional capacity and patient needs, devel- opment of comprehensive care plans, and adequate care stand- ards, which Respondent contends the replacement of LPNs with RNs was intended to improve given the scope of the RNs’ li- censure. The evidence therefore does not substantiate Re- spondent’s contention that RNs necessarily perform at a higher level, and that an all-RN model substantially improved the standard of care provided, in the context of Respondent’s par- ticular facility and patient population. Nor did Respondent present probative evidence establishing that 30-day hospital readmission rates from its facility, purport- edly a critical issue given impending regulatory changes, im- proved after Respondent replaced the LPN floor nurses with RNs. Kristina Grasso, Respondent’s administrator since Illis left the facility in August 2011, testified that since January 2012 readmission rates had been “on the decline,” and that what Respondent refers to as the “acute discharge rate” was the lowest in April 2012, that it had been in over a year. I do not, however, find this testimony to have much probative value, given the documentary evidence Respondent attempted to in- troduce in order to corroborate it. This consisted of what Grasso described as a tabulation of the number of acute dis- charges per month, divided by Respondent’s average patient census for that same month. However, Grasso testified that the “acute discharges per month” figure included all patients who were admitted to an acute care facility, and was not limited to patients readmitted within 30 days of their arrival at Somerset Valley. Ultimately, the documentary evidence purporting to be an accurate calculation of readmission rates was withdrawn, and Grasso provided no other basis for her testimony regarding changes in readmission rates overall. Finally, as discussed above, during her testimony Grasso attributed the reduction in readmission rates since January 2012 to additional training provided in the ATAP program, and not to the replacement of LPNs with RNs. As a result, I do not find Grasso’s testimony probative on the issue of changes in readmission rates, and the cause of any such fluctuation, after Respondent eliminated the LPN classification and transferred the floor nurse work to RNs.23 Finally, Respondent stipulated at the hearing that Somerset Valley is the only one of the New Jersey facilities managed by CareOne Management or Healthbridge Management to have eliminated LPNs and implemented a model where nursing care is provided solely by RNs. The evidence establishes that 23 For the reasons discussed in fn. 19, above, I also do not find the material contained in the “2011 Objectives” form completed by En- gram to be probative on this issue. 500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Healthbridge Management and CareOne Management operate approximately 28 facilities in New Jersey, a number of which provide subacute care. All of these facilities would face the same issues regarding quality of care engendered by the im- pending financial penalties to be imposed upon hospitals which readmit patients within 30 days. As a result, the ATAP pro- gram and the monitoring of acute transfers conducted by Healthbridge Management and/or CareOne Management were not measures restricted in their application to Respondent alone. Despite this, the record establishes that an all-RN model of health care delivery was not implemented at any other Healthbridge Management or CareOne Management facility in New Jersey, regardless of whether subacute or long-term care was being provided. Although Manzi, who made the determi- nation to implement an all-RN model of care at Somerset Val- ley, has been the executive vice president of operations for both Healthbridge Management and CareOne Management since January 2011, with overall responsibility for all of the compa- nies’ New Jersey facilities, she did not address this discrepancy in any way during her testimony, and Respondent provided no other evidence to explain it. Overall, this evidence militates in favor of a finding that Respondent’s asserted reasons for elimi- nating the LPN classification and transferring the work to non- bargaining unit RNs are pretextual. Pepsi-Cola Bottling Co. of Fayetteville, 330 NLRB 900, 901, 910–911 (2000), enfd. 2001 WL 791645 (4th Cir.), enfd. in relevant part on rehearing 24 Fed.Appx. 104 (4th Cir. 2001) (considering treatment of em- ployees at other facilities in order to determine whether em- ployer unlawfully withheld wage increase at facility where employees engaged in union activities). For all of the foregoing reasons, the preponderance of the ev- idence does not substantiate Respondent’s defense that it elimi- nated the LPN position and transferred the floor nurse work formerly performed by the LPNs to nonbargaining unit RNs due to a change in market positioning, patient population, or quality of care issues. As a result, I find that Respondent has not rebutted General Counsel’s prima facie case, and that Re- spondent eliminated the LPN classification and transferred work to RNs in retaliation for the LPNs’ union support and activities, in violation of Sections 8(a)(1) and (3) of the Act. C. Respondent Violated Sections 8(a)(1), (3), and (5) of the Act by Discharging Mangal and D’Ovidio as Part of its Unlawful Elimination of the LPN Classification and Transfer of Bargain- ing Unit Work to RNs The evidence establishes that Mangal and D’Ovidio were discharged by Respondent as part of its unlawful elimination of the LPN classification and transfer of bargaining unit floor nurse work to RNs. I credit D’Ovidio’s testimony that on Au- gust 18, 2011, she was discharged by Illis, who informed her that the facility was moving in a different direction and that D’Ovidio “wasn’t part of the plan.” I find it reasonable to infer that Illis’s remarks referred to the elimination of the LPN posi- tion, and transfer of work to the RNs, which had been ongoing throughout the summer. I further credit Mangal’s testimony that on October 17, 2011, Grasso discharged her, telling her that she could not establish that she was enrolled in an RN Pro- gram. Mangal’s testimony in this respect was consistent with a Termination Personnel Action Form signed by Grasso, which gave that same reason for her discharge. Respondent provided no evidence to establish that Mangal and D’Ovidio were dis- charged for any reason other than their being LPNs, as opposed to RNs. As a result, I find that their discharges were engen- dered by Respondent’s unlawful elimination of the LPN posi- tion, and transfer of bargaining unit floor nurse work to non- bargaining unit RNs. Their discharges therefore violated Sec- tions 8(a)(1), (3) and (5) of the Act.24 See, e.g., Alta Vista Re- gional Hospital, 357 NLRB 326 at p. 326–327 (employer vio- lated Sections 8(a)(1) and (5) by discharging employee pursu- ant to unlawful unilateral changes in Fit Test practice); Ald- worth Co., 338 NLRB 137, 144–145 (2002), enfd. 363 F.3d 437 (D.C. Cir. 2004) (employer violated Sections 8(a)(1) and (3) by discharging employees for violation of Selection Accu- racy Policy altered for retaliatory reasons). D. Respondent Violated Sections 8(a)(1) and (5) of the Act by Denying the Union Access to its Facility General Counsel contends that Respondent violated Sections 8(a)(1) and (5) of the Act by denying the Union’s request for access to the Somerset Valley facility. The evidence establish- es that on January 30, 2012, Union Executive Vice president Milly Silva wrote to Grasso requesting access to the bargaining unit’s work areas in the facility, to ”observe work processes and working conditions, including health and safety conditions.” It is undisputed that Respondent did not provide the Union with access to the facility. The Board applies a balancing test to determine whether a union is entitled to access to an employer’s facility in order to perform its representative functions. In Holyoke Water Power Co., the Board held that when “responsible representation” can only be accomplished through access to the employer’s premis- es, the employer’s property rights “must yield to the extent necessary to achieve this end.” 273 NLRB 1369, 1370, enfd. 778 F.2d 49 (1st Cir. 1985). However, when the union can effectively represent the bargaining union members “through some alternate means other than entering on the employer’s premises,” the employer’s property rights are paramount, and the union may be lawfully denied access. Holyoke Water Pow- er Co., 273 NLRB at 1370; see also Nestle Purina Petcare Co., 347 NLRB 891 (2006); New Surfside Nursing Home, 330 24 Respondent also contends that the charge alleging that D’Ovidio’s discharge violated Sec. 8(a)(3) of the Act is time barred. Respondent argues that while D’Ovidio was discharged on August 18, 2011, an unfair labor practice charge specifically alleging that her discharge violated Sec. 8(a)(3) was not filed until April 3, 2012, and that there- fore the allegation is precluded by Sec. 10(b). However, I find that the allegation that D’Ovidio was discharged in violation of Sec. 8(a)(3) is closely related to the timely filed allegation that Respondent violated Sec. 8(a)(3) by eliminating the LPN classification and transferring bargaining unit floor nurse work to RNs in retaliation for the LPNs’ union activity. Both allegations involve the same legal theory, the same fact situation or sequence of events, and involve the same or similar defenses. See Carney Hospital, 350 NLRB 627, 628 (2007), application dismissed 2008 WL 2223220 (D.C. Cir. 2008), citing Redd- I, Inc., 290 NLRB 1115 (1988). Respondent’s motion to dismiss the allegation that D’Ovidio was discharged in violation of Sec. 8(a)(3) is therefore denied. 1621 ROUTE 22 WEST OPERATING CO., LLC 501 NLRB 1146, 1146 fn. 1, 1150 (2000). It is the employer’s burden to present evidence establishing that its property rights predominate over the union’s right to reasonable access, and to demonstrate there are alternate means of obtaining the infor- mation necessary for the union to adequately represent the bar- gaining unit employees. Nestle Purina Petcare Co., 347 NLRB at 891; New Surfside Nursing Home, 330 NLRB at 1150; see also New Surfside Nursing Home, 322 NLRB 531, 535 (1996). Here, the information sought by the Union–direct interaction with the employees and observation of their work areas, work- ing conditions, and work processes–was presumptively relevant to its responsibilities as a collective-bargaining representative. New Surfside Nursing Home, 330 NLRB at 1150. The Board has stated that in the context of collective-bargaining negotia- tions, There can be no adequate substitute for the Union representa- tive’s direct observation of the plant equipment and condi- tions, and employee operations and working conditions, in order to evaluate matters such as job classifications, safety concerns, work rules, relative skills, and other matters neces- sary to develop an informed and reasonable negotiating strat- egy. CCE, Inc., 318 NLRB 977, 978 (1995). The Board has held that these considerations are particularly acute in the case of bargaining for an initial contract by a newly certified union. CCE, Inc., 318 NLRB at 978, 979; see also Washington Beef, Inc., 328 NLRB 612, 618–619 (1999). As a result, I find that General Counsel has met its burden to establish that the infor- mation sought by the Union was presumptively relevant to its representation of the bargaining unit employees. The evidence does not establish that, as Respondent argues, the Union had alternative means at its disposal to obtain the information it sought by visiting Respondent’s premises. Re- spondent contends that Elliott admitted during his testimony that he could obtain the information necessary to prepare for collective bargaining by speaking with the employees, as op- posed to visiting the facility. However, Elliott made clear dur- ing his testimony that simply discussing the employees’ terms and conditions of employment with them was not an adequate substitute for actually observing their workplace and work ac- tivities (Tr. 99–100). This would be particularly true in the context of negotiations for an initial collective-bargaining agreement, where the union has no prior experience with the employer’s facility and practices, and the employees are rela- tively unlikely to have experience with collective bargaining negotiations. As a result, I find that Respondent has not met its burden to demonstrate that the Union had adequate alternative means of obtaining the information, other than access to the facility. For the foregoing reasons, I find that Respondent violated Sections 8(a)(1) and (5) of the Act by denying the Union’s January 30, 2012 request for access to its facility. CONCLUSIONS OF LAW 1. The Respondent, 1621 Route 22 West Operating Compa- ny, LLC d/b/a Somerset Valley Rehabilitation and Nursing Center, is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times since August 26, 2011, the Union has been the certified exclusive collective-bargaining representative, within the meaning of Section 9(a) of the Act, of an appropriate unit of employees consisting of the following: All full-time and regular part-time and per diem non- professional employees including licensed practical nurses, certified nursing assistants, housekeepers, rehabilitation tech- nicians, dietary cooks, dietary aides, laundry aides, recreation assistants, unit secretaries, medical records coordinators, maintenance workers, porters and receptionists employed by the Employer at its Bound Brook, New Jersey location, but excluding all office clerical employees, registered nurses, die- ticians, physical therapists, physical therapy assistants, occu- pational therapists, occupational therapy assistants, speech therapists, social workers, staffing coordinators, pay- roll/benefits coordinators, all other professional employees, guards and supervisors as defined in the Act. 4. By eliminating the licensed practical nurse job classifica- tion and transferring bargaining unit work formerly performed by the license practical nurses to nonbargaining unit registered nurses without providing the Union with notice and the oppor- tunity to bargain, Respondent violated Sections 8(a)(1) and (5) of the Act. 5. By eliminating the licensed practical nurse job classifica- tion and transferring bargaining unit work to registered nurses in retaliation for the employees’ activities on behalf of the Un- ion, Respondent violated Sections 8(a)(1) and (3) of the Act. 6. By discharging Irene D’Ovidio and Maharanie Mangal as part of its unlawful unilateral and retaliatory elimination of the licensed practical nurse job classification and transfer of bar- gaining unit work to registered nurses, Respondent violated Sections 8(a)(1), (3), and (5) of the Act. 7. By refusing to provide the Union with access to its Bound Brook, New Jersey facility in order to inspect the bargaining unit employees’ work processes and working conditions, in- cluding health and safety conditions, Respondent violated Sec- tions 8(a)(1) and (5) of the Act. 8. The above-described unfair labor practices affect com- merce within the meaning of Sections 2(2), (6), and (7) of the Act. THE REMEDY Having found that Respondent has violated Sections 8(a)(1) and (5) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action necessary to ef- fectuate the Act’s purposes. Having found that Respondent violated the Act by unilateral- ly eliminating the bargaining unit LPN classification and trans- ferring the work formerly performed by the LPNs to non- bargaining unit RNs, Respondent shall be ordered to rescind these unilateral changes and bargain with the Union regarding any changes in the wages, hours, working conditions, and other terms and conditions of employment for the bargaining unit 502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees. Respondent shall further be ordered to restore the status quo ante existing prior to its unfair labor practices, by restoring the LPN classification as it existed prior to May 2011, and by returning the work transferred to the nonbargaining unit RNs to the LPN classification in the manner that it existed prior to May 2011. Respondent shall be ordered to reinstate Irene D’Ovidio and Maharanie Mangal to their former or substantial- ly equivalent positions, dismissing, if necessary, any employees hired subsequently, without prejudice to their seniority or other rights and privileges previously enjoyed. Respondent shall further be ordered to make Irene D’Ovidio and Maharanie Mangal whole for any loss of earnings they may have suffered as a result of its unlawful conduct, as prescribed in F.W. Wool- worth Co., 90 NLRB 289 (1950), with interest as set forth in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010), enf. denied on other grounds, 647 F.3d 1137 (D.C. Cir. 2011). Respondent shall file a report with the Social Security Administration allocating backpay to the appropriate calendar quarters, and shall compensate D’Ovidio and Mangal for the adverse tax consequences, if any, of receiving one or more lump-sum backpay award covering periods longer than one year. Latino Express, Inc., 359 NLRB 518 (2012). I shall fur- ther order Respondent to provide access to its Bound Brook, New Jersey facility to a representative of the Union for a rea- sonable period of time to obtain information regarding the bar- gaining unit employees’ work processes and working condi- tions, including health and safety conditions. Finally, Re- spondent shall be ordered to post a notice informing its em- ployees of its obligations herein. [Recommended Order omitted from publication.]