ADVOSERV NEW JERSEY

National Labor Relations Board - Board Decisions

Mar 11, 2016

363 NLRB No. 143 (N.L.R.B. 2016)

363 NLRB No. 143
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
AdvoServ of New Jersey, Inc. and 1199 SEIU, United
Healthcare Workers East, New Jersey Region.
Case 22–CA–131230
March 11, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On September 18, 2015, Administrative Law Judge
Steven Fish issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the Gen-
eral Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2

1 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.
For the reasons stated in his decision, we adopt the judge’s finding
that the Respondent violated Sec. 8(a)(3) and (1) by discharging Todd
Kowinsky because he engaged in union activity.
We also adopt the judge’s finding, pursuant to the General Counsel’s
alternative allegation, that Kowinsky’s termination independently vio-
lated Sec. 8(a)(1). The Respondent’s purported reason for terminating
Kowinsky was that he engaged in opprobrious conduct during the
course of his protected concerted activity, specifically during a conver-
sation protesting the Respondent’s staffing rotation policy. We agree
with the judge that, under Atlantic Steel Co., 245 NLRB 814 (1979),
Kowinsky did not engage in conduct that would cause him to lose the
protection of the Act. In so finding, however, we do not rely on the
judge’s application of the totality of the circumstances test from Pier
Sixty, LLC, 362 NLRB No. 59 (2015), or on his citation to Fresenius
USA Mfg., 358 NLRB 1261 (2012). Finally, we do not rely on the
judge’s citations to Alcoa, Inc., 352 NLRB 1222 (2008), and Dickens,
Inc., 352 NLRB 667 (2008), which were decided by a two-member
Board. See New Process Steel v. NLRB, 560 U.S. 674 (2010).
Member McFerran finds it unnecessary to pass on the judge’s find-
ing that Kowinsky’s termination also violated Sec. 8(a)(1) because this
additional finding does not affect the remedy.
2 We shall provide a “Remedy” section, which the judge inadvert-
ently omitted from his decision. We shall also modify the judge's rec-
ommended Order to conform to the Board’s standard remedial lan-
guage for the violation found and substitute a new notice to conform to
the Order as modified.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(3) and
(1) by discharging employee Todd Kowinsky, we shall
order the Respondent to offer him full reinstatement to
his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed, and to make him whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him.
Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at
the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). Additional-
ly, we shall order the Respondent to compensate
Kowinsky for any adverse tax consequences of receiving
a lump-sum backpay award. Don Chavas, LLC d/b/a
Tortillas Don Chavas, 361 NLRB No. 10 (2014).
Pursuant to Tortillas Don Chavas, the judge recom-
mended that the Respondent be ordered to submit the
appropriate documentation to the Social Security Admin-
istration allocating the backpay award to the appropriate
periods. We have since learned that the Social Security
Administration will not accept such a report prior to its
receipt of the affected employee’s W-2 forms. Those
forms, however, are often generated after the calendar
year in which the backpay is awarded, and usually well
after a respondent’s other compliance efforts must be
completed. In addition, although the Board computes
backpay on a quarterly basis, the Internal Revenue Ser-
vice requires employers to report wages on a calendar
year basis. Accordingly, we have decided to require the
Respondent, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, to
file its report allocating backpay with the Regional Di-
rector, not the Social Security Administration. The Re-
spondent will be required to allocate backpay to the ap-
propriate calendar years only. The Regional Director
will then assume responsibility for transmission of the
report to the Social Security Administration at the appro-
priate time and in the appropriate manner. We have
modified the judge’s recommended Order and notice to
reflect these changes, and we will apply this remedy in
all pending and future cases in which we issue a backpay
order. See Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB No. 10, slip op. at 2–3 (the Act’s
remedial scheme allows the Board “to revise and update
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its remedial policies from time to time to ensure that vic-
tims of unlawful conduct are actually made whole”).
Further, the Respondent shall be required to remove
from its files any and all references to the unlawful dis-
charge of Kowinsky, and to notify him in writing that
this has been done and that the discharge will not be used
against him in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, AdvoServ of New Jersey, Inc., Hewitt, New
Jersey, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because of their support for 1199 SEIU Unit-
ed Healthcare Workers East, New Jersey Region, or any
other labor organization.
(b) Discharging employees because they engage in
protected concerted activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Todd Kowinsky full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Todd Kowinsky whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him in the manner set forth in the remedy
section of this decision.
(c) Compensate Todd Kowinsky for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, 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 Board order, a report allo-
cating the backpay award to the appropriate calendar
year(s).
(d) Within 14 days from the date of this Order, remove
from its files any reference to Todd Kowinsky’s dis-
charge, and within 3 days thereafter, notify Todd
Kowinsky in writing that this has been done and that the
discharge will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Hewitt, New Jersey facility copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since December 30, 2013.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 22 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. March 11, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the 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.”
ADVOSERV OF NEW JERSEY, INC. 3
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated 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 discharge or otherwise discriminate
against you for supporting 1199 SEIU United Healthcare
Workers East, New Jersey Region, or any other labor
organization.
WE WILL NOT discharge you for engaging in protected
concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Todd Kowinsky full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Todd Kowinsky whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL compensate Todd Kowinsky for the adverse
tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector for Region 22, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar year(s).
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Todd Kowinsky, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
ADVOSERV OF NEW JERSEY, INC.
The Board’s decision can be found at
www.nlrb.gov/case/22–CA–31230 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.
Michael P. Silverstein, Esq. and Evemaria Kartzian, Esq., for
the General Counsel.
James J. Sullivan, Jr., Esq. and Matthew A. Fontana, Esq. (Bu-
chanan, Ingersoll & Rooney, P.C.,), of Wilmington, Dela-
ware, for the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. Pursuant to charg-
es filed by 1199 SEIU United Healthcare Workers (the Union)
on June 20, 2014, the Director for Region 22 issued a complaint
and Notice of Hearing, alleging that Advoserv of New Jersey,
Inc. (Respondent) violated Section 8(a) (1) and (3) of the Act
by terminating the employment of Todd Kowinsky on Decem-
ber 30, 2013, because Kowinsky assisted the Union and en-
gaged in concerted activities, and to discourage employees
from engaging in these activities.
The trial with respect to the allegations raised in the com-
plaint was held before me in Newark, New Jersey, on January
13, 14, and 20, 2015. Briefs have been filed by General Coun-
sel and Respondent, and have been carefully considered.
Based upon the entire record, including my observation of
the demeanor of the witnesses, I issue the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a Delaware corporation with offices and plac-
es of business in Hewitt and Ringwood, New Jersey, where it
provides residential and day services to adults with intellectu-
al/developmental disabilities.
During the 12-month period ending December 31, 2013, Re-
spondent derived gross revenues in excess of $500,000, and
during the same period purchased and received goods in excess
of $50,000 directly from suppliers outside the State of New
Jersey.
Respondent admits, and I so find, that it is and has been at all
times material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7)of the Act.
It is also admitted and I so find that the Union is and has
been a labor organization within the meaning of Section 2(5) of
the Act.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. FACTS
A. Respondent’s Operations
Respondent is a behavioral health care provider specializing
in services for children and adults with intellectual and devel-
opmental disabilities. Respondent operates health care facili-
ties throughout the country, including in the state of New Jer-
sey. It operates 48 group homes in New Jersey for adults with
intellectual disabilities, which includes a facility located in
Hewitt, New Jersey, which is known as the Respondent’s Up-
per Greenwood Lakes (UGL) campus, as well as another facili-
ty, located in Ringwood, New Jersey, located 15 miles from the
UGL campus.
The UGL campus houses roughly 34 individuals or clients.
The campus contains those residential group homes (designated
UGL-1, UGL-2 and UGL-3) that lie about 100 feet apart. In
close proximity to the homes is an administration building,
which contains administrative offices, a conference room and
staff lounge.
Kim Mickus is the Program Director for the UGL campus
and Rashad Byrd is its Assistant Program Director. They were
both stationed at the UGL campus.
Darren Blough is Respondent’s New Jersey State Director
with final authority for all personnel and operating decisions in
this territory. Jessica Bayer is Respondent’s Assistant State
Director, who oversees 25 group homes in the northern and
central regions of New Jersey, including the UGL campus.
Respondent’s main office is in Bear, Delaware. At that loca-
tion, its CEO Kelly McCrann and COO Bob Bacon were sta-
tioned, as well as Katherine O’Brien, who is Respondent’s
Corporate Human Resources Director.
Respondent has stipulated that Blough, Bayer, Mickus, and
Byrd are supervisors of Respondent within the meaning of the
Act.
Respondent also stipulated that Arthur Mongelli was em-
ployed by it until October 3, 2012, and that during his employ-
ment, Mongelli was a supervisor within the meaning of the Act.
Similarly, Respondent stipulated and I find that Terri Outer
was employed by Respondent until December 30, 2013, and
that during her employment she was a supervisor within the
meaning of the Act.
At the UGL campus, Respondent also employs a team of cli-
nicians and behavior analysts. Respondent’s senior behavior
analyst is Alana Bellizzi. The clinicians develop and imple-
ment programs to address each client’s own behavioral chal-
lenges. Every client or resident has a behavior plan developed
by the clinicians that identifies specific behavior that interferes
with residents’ ability to live independently, identifies the caus-
es of said behaviors and maps out appropriate responses to
those behaviors. The clinicians are not supervisors, but they
work with Respondent’s supervisors to develop these plans.
Respondent employs community living specialists (CLSs)
who are assigned to each residential building to assist residents
with daily life functions and to carry out the terms of the behav-
ior plans, developed by the clinicians.
The (CLS’s) are divided into three shifts, (morning, day and
night) with about eight CLS’s working per shift.
In UGL-3 Respondent housed 10 residents. On the night
shift, Respondent employed three CLS’s, Todd Kowinsky, Rob
Wolyuk, and Nancy Filipowicz to care for the residents in that
home. Terri Outer was the night-shift supervisor (or program
coordinator), for all three UGL homes. The night shift ran
from 10:15 pm to 6:15 am.
B. The Union’s 2012 Organizing Activity
In the fall of 2012 the Union began an organizing drive at
Respondent’s UGL and Ringwood facilities. Kowinsky and
another employee had discussed getting a union at Respondent,
and they approached the Union about representing Respond-
ent’s employees. Cards were given out to Kowinsky and the
other employee to distribute to other employees at Respond-
ent’s facilities.
Kowinsky signed a union authorization card dated Septem-
ber 9, 2012. Kowinsky thereafter distributed blank authoriza-
tion cards to 35–40 employees working on all three shifts at the
UGL campus. Kowinsky spoke with these employees on the
phone about the Union, met them in the parking lot to discuss
the benefits of unionization, and discussed the Union and the
signing of cards in the kitchen and the living room areas of
residential buildings.
Kowinsky also wore a union hat at work nearly every day for
about a two month period during the campaign. On one occa-
sion, in October of 2012, Kowinsky was in the office at the
Administration building at the UGL building, to pick up his
paycheck. At that time Bayer was there, and she called
Kowinsky into the office that Bayer uses when she is at the
campus. Bayer commented to Kowinsky about his union hat.
She said “nice hat.” Bayer then showed Kowinsky the monitor
of her computer displaying an image of union employees on
strike. Bayer said to Kowinsky that 1199 was involved in a
strike and there were other problems with the union. Bayer
added “why would you want them representing you, there is
nothing good there.”
The Union filed a petition for an election, which led to the
Stipulated Election Agreement, signed by the parties, and ap-
proved by the Director of Region 22 on December 4, 2012.
The Agreement provided for an election at both the UGL and
Ringwood facilities, in a unit of full and regular part time and
per diem community living specialists, housekeeping and
maintenance employees at these locations.
Shortly after the information about the notice of the election
was posted at Respondent’s facility, Mickus spoke to Kowinsky
in the staff lounge in the administration building. Mickus asked
Kowinsky to give her a chance to see if she could straighten
things out, and don’t bring in the Union and let her have a
chance at straightening things out, and running the place. Ac-
cording to Kowinsky, Mickus had been employed by Respond-
ent for about 2 to 3 months at the time of this conversation.
The election was scheduled to be held on January 4, 2013.
However shortly before the election, the Union withdrew the
petition, and the election was canceled.
During the course of the union campaign, Respondent con-
ducted meetings with its supervisors and with counsel present.
Respondent stipulated that it was not in favor of unionization of
its employees in 2012 and that it campaigned vigorously
against the Union in 2012. The campaign included meetings
ADVOSERV OF NEW JERSEY, INC. 5
with supervisors and employees, and posters and flyers.
Blough testified that in 2012, he was aware through reports
from other staff members that Kowinsky was an advocate for
the union’s organizing and was taking an active role in the
campaign on behalf of the Union.
In contrast, both Bayer and O’Brien denied that they were
aware of any union sentiments or union activities by Kowinsky
in 2012, or indeed at any time.
C. Kowinsky’s Work Record
Respondent stipulated at the trial that Kowinsky was recog-
nized by Respondent as a good employee. He was employed
by Respondent since January of 2008, and worked on the night
shift.
Respondent issues “Way to go Certificates,” to employees
which compliment them on their performance in various re-
spects. These “Way to Goes” are used by Respondent in con-
nection with employee evaluations and bonuses that Respond-
ent gave from time to time. In that connection Kowinsky has
received a number of “Way to Goes” from various supervisors,
and received bonuses as a result of his evaluations.
The record reflects that Kowinsky received a “Way to Go,”
from Mickus on August 8, 2013, reading, “doing a great job
making sure night shift runs smoothly.”
On September 26, 2013, Terri Outer issued two “Way to
Goes” to Kowinsky stating that he “did great job putting fire
out in UGL-3,” and “great job getting the residents out of the
house in 1 minute. You’re awesome.”
On November 11, 2013, Kowinsky was working on the day
shift1 and received a “Way to go” from day shift supervisor
Debbie Schackmann.
Schackmann’s “Way to GO” reads, “thanks so much for al-
ways going above and beyond with day program and mentoring
new staff.”
Kowinsky’s evaluations dated 7/1/13 and 12/1/13 reveal
above average grades in some categories, meets job require-
ments in most and needs improvement in one category (Follows
job program policies described in the Employee Handbook,
Behavior Management Guidelines, and in arranging directives)
in a timely and correct manner.”
The evaluation of 7/1/13, reflected that Kowinsky received 6
Way to Goes that quarter, and that he received some discipli-
nary actions for “placing oneself in a position conducive to
sleeping.”
In that regard the record reflects that Kowinsky received a 3-
day suspension for conduct on June 24, 2013. According to the
report of Mickus, she dialed into the home, and observed
Kowinsky, where he was laying down, with a blanket covering
his body, and in a “position conducive to sleep.” The report
reflects that Mickus called the home, spoke to Kowinsky and
advised him to sit up, and that he would be receiving feedback.
The notice further reflects that Kowinsky is suspended for 3
days from 9/8—9/10, and that “this constitutes sleeping on the
job or placing oneself in a position conducive to sleep.” It fur-

1 Employees frequently are assigned to work additional shifts, as
“mandatory overtime,” when employees called out sick. This is known
to employees as being “popped.”
ther states that future occurrences may result in further discipli-
nary action up to and including termination from AdvoServ as
outlined in the handbook.
According to Kowinsky, he wasn’t sleeping on that day, but
he had a headache and he was just putting his head back and
resting. Mickus then called him, and told Kowinsky to “get the
fuck up” and he told her that he wasn’t sleeping, but that he had
a headache and was putting his head back and resting his eyes.
Mickus told him during that conversation that she was going to
let it go this time. However, according to Kowinsky, “the next
day everybody knew about it, so they had to give me a suspen-
sion at that time.”
Mickus did not testify in this proceeding. Blough testified
that he reviewed and approved the discipline recommended by
Mickus, of a 3-day suspension for Kowinsky based on that
conduct. According to Blough, corroborated by O’Brien, this
conduct by Kowinsky could have resulted in a termination for
Kowinsky, at that time. In that connection, Respondent’s Em-
ployee Handbook lists a number of offenses under Group two.
These offenses, which include theft, possession or use of alco-
hol, absence without notification, willful destruction of proper-
ty, also includes “sleeping on the job or placing oneself in a
position conducive to sleeping while on duty.” The Handbook
provides the following for this conduct. For a first offense, it
states, “written warning to termination.” For a second offense,
it provides the same comments, “written warnings to termina-
tion.” Finally, for 3rd offense, it states “termination.”
According to Blough, although Respondent could have ter-
minated Kowinsky, under its handbook for his conduct in June
2013, it decided after a review of Kowinsky’s employment
history and his evaluations and performance feedbacks, that in
fairness to Kowinsky, it would issue him a suspension as op-
posed to a termination at that point.
Respondent has an appeal procedure which is detailed in its
handbook, wherein employees can appeal disciplinary actions.
It involves various steps, and permits employees to have the
discipline reviewed by higher officials of Respondent.
Kowinsky chose not to exercise his right to appeal this disci-
pline. In fact Kowinsky testified that he did not believe at that
time, that his suspension was motivated by any antiunion view
or position on the part of management.
On July 2, 2013, Kowinsky sent a text message to Blough,
which makes reference to the suspension. In that text,
Kowinsky explained his conduct as follows:
“Hay Darren I just want you to know that I took that 3 days
without any problem. I was relaxing for a short time that night
due to a horrible headache. I’m a man and I will take the pun-
ishment, but I can ensure(sic) you that it won’t happen again. I
herd(sic) you were skittle(sic) surprised when you heard my
name again. I’m saying we’re all human after all.”
Blough responded as follows:
I appreciate you reaching out. Believe me I understand and
respect that. In the future just please tell the sup and we will
work out getting you a break if you need it. Human we are.
In that same exchange, Kowinsky texted the following re-
sponse to Blough.
“Thanks for understanding after all I love what I do. Thank
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
you Darren. I’m sorry about the alternate thing. I’m kind of
thinking about a bigger picture may be one of the new houses
might be in line.”
Blough responded “thank you for understanding our need to
be fair across the board. And yes I understand your decision as
well. Have a happy fourth.”
The “alternate” thing referred to in the text exchange, was a
position as alternate supervisor, which Respondent’s officials
had been vigorously attempting to persuade Kowinsky to ac-
cept for several months.
Alternate supervisor is a position that is filled when the regu-
lar supervisor is off or out. There is an increase in pay when
the employee serves as an alternate supervisor. In that regard,
Mickus spoke to Kowinsky about five or six times over a peri-
od of 5 or 6 months in 2013, and informed Kowinsky that Re-
spondent needed someone to run the night shift, when Outer
was not there. She told Kowinsky, that “we need somebody
with a little brains to run the shift. You’ve been here a while.
You know.” Kowinsky declined Mickus’ request, telling her
that he had been in that position previously, and it was taken
away from him for unexplainable reasons. He further ex-
plained that he didn’t want it again because Respondent had a
lot of immature kids working on that shift, and that he didn’t
want the responsibility,” “if something happened, that would be
on me.”
Similarly, Bayer asked Kowinsky about four times over the
same period about the position. Bayer said to Kowinsky, “take
the alternate job, come on, we need you.” However, Kowinsky
continued to decline the request.
Finally, Kowinsky met with Blough and Bacon shortly be-
fore the text exchange, wherein Blaugh and Bacon urged him to
accept the alternative supervisor position. Kowinsky told
Blough at that time that he would think about it.
In the text exchange when Kowinsky mentioned the “alter-
nate thing,” he was referring to the alternate supervisor’s posi-
tion, and saying he was sorry and would not accept it, but he
was thinking “about a bigger position maybe some of the new
houses might be in line,” meaning he was interested in a regular
supervisor’s position, if one opened up at one of the houses.
On August 22, 2013, Kowinsky received a 2-day suspension,
to be served on 4/3 and 4/4/13, issued by Mickus. The Disci-
plinary Action states the discipline was a Group 2 Offense, for
“Endangering the welfare of residents.”
The narrative comments on the form reflected that on August
22, 2013, at 11:35 pm Kowinsky was informed that he would
be required to provide clinical coverage on the morning of
8/22/13 due to staffing needs. Kowinsky stated that he wasn’t
staying for the coverage because the first staff member refused
to stay. The document further reflects that Kowinsky walked
off the floor at 6:15 am leaving the premises without proper
coverage. The form further stated that “this constitutes endan-
gering the welfare of the residents as per the Advoserv employ-
ee handbook.”
Kowinsky stated that he would appeal this action, and write a
response on the disciplinary notice. It reads, “They had proper
staff coverage. It’s not endangering the welfare of the resi-
dents. And if this had been addressed before like it should have
this would not have happened. (Was to prove a point.) (I
would like to appeal).”
On August 27, 2013, Kowinsky texted Blough that he want-
ed to speak to him. On August 28, they spoke on the phone.
Kowinsky described what had happened and admitted that he
had refused to stay for a mandatory overtime shift. Kowinsky
explained that he had received a disciplinary action for endan-
gering the welfare of the residents, and disputed that language,
since there was a staff member who would be staying for that
shift, so the individuals were not placed in danger.
After that conversation, Blough contacted Mickus, and she
confirmed the information that Kowinsky had given to Blough,
that another employee covered the shift. Blough and Mickus
decided that the language in the notice should be altered to
remove the language about endangering the welfare of the resi-
dents and substitute not following an established safety rule for
the discipline. However, the suspension was not eliminated or
revoked.
Blough talked to Kowinsky on August 28 at 5:33 p.m., in-
forming him that “Kim will be giving you a call. We discussed
in great detail and tried to be fair across the board. She will
give more detail, but call tomorrow if you have other ques-
tions.”
The record does not reflect whether or not Mickus spoke to
Kowinsky about Respondent’s decision, as testified to by
Blough, and corroborated by O’Brien, to change the language
of the Disciplinary Notice. Additionally, the record does not
reflect the preparation of any revised document changing the
language of the discipline from endangering the welfare of the
residents to not following safety rules.
D. The Union’s Organizing Campaign in 2013
Kowinsky reached out to the Union in the summer of 2013
and spoke to organizer Brian Walsh. Kowinsky told Walsh that
the employees were interested in trying to get the union again,
that the first time wasn’t so good, and he felt that the employees
didn’t have the full attention of the Union last year. Walsh
informed Kowinsky that he would mail him authorization cards
to get signed by employees.
Walsh did so, and Kowinsky signed a union card on 9/25/13
and proceeded to start distributing cards to employees and talk-
ing to them about signing cards for the Union and having the
Union represent the employees. Kowinsky spoke to employees
on the campus, in the houses, in the driveway, in the parking
lot, and in some of their cars. He handed out cards to about 45
employees. In late December of 2013, Kowinsky met Walsh at
a bowling alley in Warwick, New York, and gave him the
signed cards that he had obtained.
During the course of this trial I made an in-camera inspec-
tion of 52 authorization cards, which were submitted by the
Union. This inspection revealed 52 cards dated on various
dates between September and December of 2013, containing
signatures of 52 of Respondent’s employees employed at vari-
ous facilities.
In October of 2013, Stacey Paterno was employed by Re-
spondent as a CLS at the UGL facility, located in Hewitt, New
Jersey. She worked on the night shift. Kowinsky approached
Paterno in August of 2013 and told her that he is thinking about
ADVOSERV OF NEW JERSEY, INC. 7
starting to bring the union back in, Terri Outer was also present,
since Kowinsky at the time was driving Outer to work. After
Kowinsky made his comment to Paterno about bringing back
the Union, Outer interrupted and said “please don’t do that in
front of me,” and she walked away.
Sometime in October of 2013, Paterno was standing outside
of House 3. Mickus and Bayer came out of the house and
closed the door. Mickus asked Paterno if she knew about the
Union starting up. Paterno responded yes. Bayer asked if
Paterno was going to be involved. Paterno replied no. Mickus
then said, “good then you can downplay the necessity for a
Union to the other employees.” Paterno replied sure. Bayer
then said, “you know Todd (Kowinsky) is behind it”. Paterno
replied yes.
Paterno also had a conversation about the Union with her su-
pervisor Heather Barsch in August 2013, outside the home.
Paterno brought up the subject, and said that she heard that the
union might be starting up again. Barsch responded “yeah, I
heard but I’m not going to get involved in it.” Paterno had a
similar conversation with Barsch during the 2012 campaign,
where Barsch expressed to her that she didn’t agree with un-
ions.
As noted above, Kowinsky drove supervisor Terri Outer to
work for a period of time. The record reflects that for the year
2013, Outer and Kowinsky drove together to work. For 6
months they drove in Outer’s car, and for 6 months they drove
in Kowinsky’s truck. During their daily commute together in
2013, Kowinsky informed Outer that he was getting cards
signed up for the Union. Outer replied to Kowinsky, “Do what
you have to do.” She also told Kowinsky that she hoped that
the employees get the Union in here, and that the employees
deserve it.
Outer spoke to Byrd in the summer of 2013, and informed
him that “people are talking about the Union.” Outer did not
recall if she told Byrd that Kowinsky was involved in the Union
talk or organizing in 2013. Outer noted that there were other
people, in addition to Kowinsky who were talking about the
Union in 2013.
In October of 2013, Outer was in the staff lounge at about
5:30 a.m., right before the shift change. At that time Debra
Schackmann, who is the supervisor (program coordinator) for
the day shift, which starts at 6 a.m., was present, along with
four or five staff members from the day shift. Schackmann told
the employees that she thinks that the employees should go for
a Union, that things are not going right, and she believes that it
would do the Company good to have a union, because people
aren’t treated right. Outer interrupted and told Schackmann
that she shouldn’t be saying things like that to employees.
Subsequently, Outer informed Byrd that there was a conver-
sation in the staff lounge, and that Schackmann was talking to
employees about how it’s good for them to get a Union.
In October of 2013, Respondent had its weekly administra-
tion meeting in the basement of UGL-3. Present at this meeting
were Bayer, Byrd, Mickus and a number of other supervisors
(program coordinators) from both the UGL facility and Re-
spondent’s Ringwood facility, including Schackmann, Barsch,
Lori Sokoly and Felicia De Groat. Additionally, Respondent’s
administrators present included Brenda Mongelli the IHP Co-
ordinator, who makes up plans as what to residents do each
day, and several behavioral analysts from both facilities, in-
cluding Alana Bellizzi, Sally Raider, and Christine Weiladek.
During the course of this meeting, Bayer was standing in
front of a table, and stated that she knew that there was union
activity going on and that there were meetings going on the
night shift with cars coming in and out of the driveway. Bayer
then stated that if she finds out who was involved in the Union,
she’s “going to fire our asses.” Outer took that comment to
mean everybody, including supervisors, administration, and
CLS’s.
A day or two later, Outer spoke to the employees on the
night shift on Sunday night. The employees present included
Kowinsky, Nancy Filipowicz, Rob Wosyluk and Chris Brown.
Outer told the employees that the administration knew that
there was union stuff going on, and were accusing the night-
shift employees of having union meetings, and that the employ-
ees needed to “watch their asses,” because whoever was in-
volved in the Union, “they would fire our asses.” Kowinsky
commented to Outer, “I don’t know what you are talking
about,” referring to the alleged union meetings on the night
shift.
The Union never filed a petition for representation with the
Region in 2013, and the Union never made a demand for
recognition to Respondent. Blough, O’Brien and Bayer all
testified that they had no idea about a Union organizing cam-
paign at Respondent’s facilities in 2013, and denied that they
were aware of any union activities by Kowinsky during that
time.
E. The December Meeting With Employees When Respondent
Announced Plans To Rotate Employees
In early December of 2013, Respondent conducted a month-
ly night-shift meeting. Present were the 10 CLS’s from the
night shift, who worked at the three Houses (UGL-1, -2 and -3),
Bellizzi, Mickus, Byrd and Outer. Bellizzi, Mickus and Byrd
announced to the employees that Respondent intended to begin
rotating night-shift staff members amongst the three Houses.
Bellizzi explained that the primary reason for this change, was
that a resident had made a complaint about some CLS’s on the
night shift. As a result of these complaints Bellizzi, Byrd and
Mickus announced that it intended to commence a process of
rotation of CLS’s on the night shift amongst the three Houses,
in order to protect both the residents and the employees.
According to Bellizzi, the specific complaint that was made
by the resident was that the three employees at UGL-3,
Kowinsky, Wosyluk and Filipowicz, would insist that the resi-
dent stay in his room at night. The resident further asserted that
the employees told him that they didn’t want to have to watch
him, since the resident had a history of eloping from the house,
so they didn’t want him having access to other parts of the
House. According to Bellizzi this is not appropriate for the
CLS’s to do, since it is not part of the residents behavior plan.
Bellizzi then reported the accusations that the resident made
about the employees’ conduct to Byrd and Mickus.
According to Bellizzi, she believes that Byrd and Mickus
confronted the employees about the accusations, but Bellizzi
was not sure what the employees responded to them about the
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
accusations.
4
Nevertheless, the resident continued to complain
about the same alleged conduct by the three employees. There-
fore, Bellizzi recommended and Byrd and Mickus agreed that
Respondent would resolve the issue by rotating the staff among
the three houses. Bellizzi further testified that the practice of
rotating employees (on the same shift), amongst houses is not
uncommon at Respondent, that it is done regularly at its other
facilities, and even on occasion on other shifts at UGL, when
necessary.
However, the practice on the night shift at UGL had been
that night-shift employees would not rotate into the other hous-
es, and would only work in other houses on other shifts, when
employees were out, and they needed to fill in.5
The practice resulted essentially in night-shift employees
spending nearly all of their working time in the same houses.
Kowinsky, Wosyluk, and Filipowicz were the most senior em-
ployees on the shift.
Bellizzi explained Respondent’s rationale for the changes to
the employees, with Mickus and Byrd commenting as well.
Bellizzi informed the employees that the rotation of employees
among the houses would take place on all three shifts; and not
only among the employees on the night shift.
They explained that due to the client complaints in the house,
and also for the safety of the staff, Respondent decided to make
the change. They also added that Respondent believed that it is
not a good idea for the staff to be static in one house, and it is
better to familiarize all staff with all clients, so that the staff
could work in any given house, on any given day.
Several employees complained about Respondent’s decision,
primarily Kowinsky, Wosyluk, and Filipowicz. They stated
that they felt due to their seniority, that they should be able to
choose which house that they are most comfortable in. The
employees also stated referring to the client who made the
complaint about them that the client can be aggressive so they
needed to be there because of that. Bellizzi and Byrd respond-
ed that all staff are trained to work the same, across all clients.
Bellizzi responded that Respondent’s decision was for the pro-
tection of the employees, as well as the client, and reiterated
that it is something that Respondent has always done at other
facilities and on other shifts.
Kowinsky, Filipowicz, and Wosyluk also asserted that Re-
spondent was making an emotional decision, and listening too
much to the clients, and always taking the “clients” side over
the employees. These three employees, as well as a few other
employees on the shift, objected to the rotation, on the grounds
that they should be allowed to remain in “their” house. Bellizzi
and Byrd responded that it was the client’s house, and not the
employees’ house.
Kowinsky, Wosyluk, and Filipowicz stated that Respondent
was targeting the night shift, that there was nothing going on in
the night shift, and they questioned whether the day shift em-
ployees would be rotating houses as well. They also comment-
ed that they have been in UGL-3 for a long time, knew the

2 As noted neither Byrd nor Mickus testified.
3 As noted, above, Respondent had a mandatory overtime policy,
wherein if an employee is needed to fill in, when an employee is out, he
or she is “popped” and required to work an additional shift.
residents well, and the residents knew the employees. Thus
everyone is safer if Respondent maintained the status quo.
Bellizzi and Byrd responded again that the rotation would be
taking place on all three shifts, and not just for the night shift,
and that the decision was made for the protection of both em-
ployees and the clients.
Of the 10 night-shift employees at the meeting, about half
expressed support for the decision, stating that they were happy
to get experience working in other houses. Thus in addition to
Kowinsky, Wosyluk and Filipowicz, who worked in UGL-3,
one or two other employees who worked in the other houses
also objected.
One of these employees Joe Olcay, who worked in one of the
other houses, complained that the day shift wasn’t going to do
it, and added that “this is bullshit,” it was ridiculous that the
employees were still in the same house. After Olcay com-
plained again, Byrd said to Olcay, “shut the fuck up.”
Subsequent to this meeting, Respondent instituted the change
in scheduling announced by Respondent’s officials. According
to Bellizzi, Kowinsky, Wosyluk, and Filipowicz had previously
been the only three CLS’s at UGL-3, and they worked only in
UGL-3, except for occasional pops, when they were assigned to
other shifts or houses. Once the new system started, Mickus
and Byrd created a new schedule wherein Kowinsky,
Filipowicz, and Wosyluk would be assigned to all three of the
houses, on different days, and CLS’s from the other two Hous-
es would rotate in to work in UGL-3, to replace them on the
shift. Thus Kowinsky, Filipowicz, and Wosyluk were still
assigned to UGL-3 for some shifts, but for others they were
assigned to UGL-1 or 2, and employees from 1 or 2, would be
assigned to UGL-3 to fill slots previously assigned only to
Kowinsky, Filipowicz, and Wosyluk.
F. The December 16, 2013 Meeting With Bayer
Immediately after the night-shift meeting, described above,
wherein Respondent notified the employees of the decision to
rotate staff, there was considerable discussion and objection to
this decision by several employees. Kowinsky, in the presence
of Filipowicz and Wosyluk, told Outer that employees felt that
Respondent was targeting the night shift with its proposed rota-
tion and the employees had concerns about Respondent’s deci-
sion. Kowinsky asked if the employees could speak with high-
er level administrators, such as Blough, Bacon or Bayer about
the proposed changes. Outer told Kowinsky that she would
speak to Mickus and Byrd to try to set up a meeting to further
address these issues.
The next morning Outer spoke to both Byrd and Mickus to-
gether, and informed them that the night-shift employees had
an issue with switching houses, and requested to meet with
Blough to discuss their concerns. Byrd replied that he would
see what he could do about arranging a meeting. The next
morning, Byrd informed Outer that on Monday morning De-
cember 16, 2013, Bayer would be coming to the facility, to
discuss the issue of moving the staff around the houses, and
that she should make sure that all of the staff knew about it.
Outer then sent a group text to all the night-shift employees
informing them that Bayer would be there on Monday morning
to meet with employees to discuss their concerns about the
ADVOSERV OF NEW JERSEY, INC. 9
switching of the houses. Outer also called some of the employ-
ees who did not respond to her text message, to make sure that
they knew what was coming on Monday.
Bellizzi thereafter received a call from either Mickus or
Byrd, informing her that the night-shift employees had asked
for a meeting, and Byrd, Mickus, Bellizzi, and Bayer should all
be present on Monday morning December 16.
When the night shift ended on the morning of December 16,
Kowinsky reported to the staff lounge. Present were Mickus,
Byrd, Bayer, and Bellizzi. Kowinsky asked to speak with
Bayer privately. Bayer walked out to the hallway with
Kowinsky. Kowinsky told Bayer that “we wanted to speak to
Bayer by herself without anyone else there, because we didn’t
like the way things were running there.” Kowinsky added that
“we wanted to speak without Rashad or Kim or Alana there.”
Bayer replied fine no problem.
Bayer then informed Byrd, Mickus and Bellizzi that the staff
would prefer to meet with Bayer, one on one, with no one else
present. Bayer told Mickus, Byrd, and Bellizzi to wait in case
there were questions.
Bayer then met with night-shift employees individually in a
conference room. The first employee spoken to was Kowinsky.
Bayer asked Kowinsky, as well as the other employees whom
she interviewed, how things were going on the shift, what was
going on in the shift, and did they have any concerns about how
they were treated on their shift by their supervisor?
Kowinsky responded that there was nothing wrong with his
supervisor, but that it seemed like Respondent was pinpointing
the night shift by making adjustments on the night shift by
switching houses amongst the employees. Bayer explained to
Kowinsky that there had been accusations made by a resident
against several of the night-shift employees and that Respond-
ent was doing what was best for the residents as well as the
workers. Kowinsky responded that he Filipowicz and Wosyluk
were the most senior employees, and that they should not be
moved “out of our houses.”4 Bayer replied that seniority did
not factor into the decision, and that Respondent was doing
what was best for both the employees and the residents.
Kowinsky then commented about Respondent putting young
immature employees into houses with some residents with vio-
lent histories, which could cause someone to get hurt. Bayer
replied to Kowinsky, “Todd, why don’t you take the fucking
alternate position for me, please, we need somebody mature
like you, and you can help these kids along, straighten them
out.”
Kowinsky then remarked that these changes were coming
out of nowhere and that the night-shift employees didn’t under-
stand why Respondent was picking on their shift. Kowinsky
added “if it wasn’t broke, don’t fix it.” Kowinsky then in-
formed Bayer that a lot of people are starting to get unhappy
with the way things are going around here and there has been
talk about the union, and that if it keeps up it’s going to go
through this time. At that point, Bayer, who had not been tak-
ing notes, picked up a pen, began to write down notes, and
asked “what they’re talking about a union again really?”

4 Kowinsky, Filipowicz, and Wolyzuk were the only night-shift
employees regularly assigned to the UGL-3 house.
Kowinsky replied yes and added that he was all for the Union.
Bayer asked Kowinsky what the problem was with the shifts
and what was going on with the work on the shift. Kowinsky
answered that Kim “doesn’t know what the fuck she is doing,
and neither does Rashad.” Kowinsky added that the clinicians
were “Jackasses” and “that Kim can’t make any decisions and
neither can Rashad.” Kowinsky pointed out that the clinicians
do not work with the residents every day like the CLS’s do, and
added they also know more about the residents than do the
clinicians.
After meeting with Kowinsky, Bayer interviewed Outer, and
then night-shift employees Montrise Jordon, David Irizarry,
Jose Joey Olcay, Randy Saracco, Chris Brown, Erin Fracht and
Mike McCarthy. Neither Wosyluk nor Filipowicz were inter-
viewed by Bayer. The record is unclear as to why, since all
night-shift employees had been informed by Outer that a meet-
ing with Bayer was scheduled for the morning, to discuss the
employees concerns. According to Bayer, Wosyluk and
Filipowicz were not interviewed, because they were not there
on that day or at the time of the interviews. Neither Wosyluk
nor Filipowicz testified.
After Kowinsky left the meeting with Bayer, he spoke to
Outer before she went into the conference room to meet with
Bayer. Kowinsky told Outer that he had mentioned in his in-
terview with Bayer, that Byrd and Mickus were always picking
on or “coming at” Outer. Bayer began her interview with Out-
er, by apologizing to Outer for the way that Byrd and Mickus
had been “coming up” and treating her.
Outer informed Bayer that her shift is running fine and that
she did not understand why people were making complaints
against her. Outer added that she treats everyone fairly, but if
people do not want to do their job, they’re going to get feed-
back from Outer for it.
Bayer asked Outer, how does she offer information to her
staff that might not be palatable to them. Outer replied that she
would present it to the employees as if it was her idea.
Outer also informed Bayer during the interview, that she
(Outer) was supportive of the move. The next employee to be
interviewed was Montrise Jordan. She works in UGL-1 and 2,
during the week, and in UGL-3 on some weekends. Jordan told
Bayer that she loves her job and her co-workers, and that
Mickus and Byrd are fair. However, Jordan stated that Outer
was unprofessional and unfair. Jordan said that Outer showed
favoritism towards the staff she likes, by keeping them in UGL-
3, while everyone else gets to work in UGL-1 and 2. Jordan
also informed Bayer that Outer talks about the staff’s personal
business in front of other staff and that Outer screams at staff
while other staff is around. Jordan also complained to Bayer
that she had not had any full weekends off, although she had
been working for Respondent since April.
David Irizarry worked in UGL-1. He told Bayer that he
liked his job and had no complaints about anyone. Irizarry did
inform Bayer that his only concern was having gift cards taxed
on his paycheck. Irizarry also told Bayer that although he had
not had any personal problems with anyone, that he had heard
Outer yell at other staff members in his presence.
Joey Olcay was employed by Respondent for 3 years in
UGL-1. Olcay said that Outer created a very hostile work envi-
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ronment. Olcay added that Outer talks down to the staff in
front of others, reports to staff when someone is being written
up, and changes rules when she see fit. Olcay also stated that
Outer was unprofessional, blames others when things are
wrong, and punishes the staff if they speak up about anything.
Olcay complained that Outer keeps Kowinsky, Wosyluk, and
Filipowicz in the same house (UGL-3) every night, and she
sticks him (Olcay) in UGL-1 as punishment, which Olcay re-
gards as “favoritism.”
Erin Fracht was employed by Respondent, at the time of her
interview for 9 months, and worked in UGL-2. Fracht told
Bayer that she has no concerns. Fracht said that she had heard
about same issues from the staff about inequality, but in her
opinion, some of the staff members are lazy and have no work
ethic, and that is why they get yelled at. According to Fracht,
Outer was fair, reasonable, respectful, and professional. Fracht
also informed Bayer during her interview that she was interest-
ed in a position as a behavioral analyst.
Mike McCarthy was employed by Respondent on the night
shift, and was a military veteran, with reserve obligations, and
the possibility of being deployed. McCarthy told Bayer that
Outer was too aggressive, and screamed at staff members in
front of everyone. He specifically referred to Outer screaming
at employee Chris Brown and giving 3 write ups to employee
Randy Saracco. He also said that Outer had yelled at him once
or twice. McCarthy accused Outer of having her favorites, and
said that she treated everyone else like garbage. McCarthy
informed Bayer that he was very upset that Outer had told him
that he could not be an alternate supervisor, because he is in the
reserves and he might get deployed, so he would not be a relia-
ble supervisor. McCarthy told Bayer that this was illegal and
that Respondent could be fined for this.
McCarthy also told Bayer in the course of their conversation,
that Kowinsky, and Filipowicz and Outer were “all in on Un-
ion.” McCarthy additionally informed Bayer that Kowinsky
“gave out Union cards.”
Randy Saracco informed Bayer during his interview, that
Outer created a very hostile work environment. He accused
Outer of calling people out in front of others, and discarding
employees timesheets that she is angry with. Saracco also stat-
ed that in the past he was required to cover for Outer, when she
left early. Saracco also complained about not getting one
weekend off per month.
Saracco also informed Bayer that Kowinsky was “starting
union nonsense again.” Saracco additionally referenced anoth-
er employee of Respondent, Alexis Munez, stating that “Alexis
Munez said Union cards.”
Chris Brown complained that Outer was unprofessional and
targets staff who she feels are reporting on her. Brown told
Bayer that he was afraid of retribution for talking to Bayer, and
added that Outer had told him that morning not to say anything
bad about her in his discussion with Bayer. Brown also told
Bayer that Outer had agreed to give him Christmas Eve off, but
then revoked it after, Brown had told Byrd that he (Brown)
hadn’t been in UGL-3.
After Bayer completed her discussions with the employees,
as detailed above, Bayer called Blough, and informed him
about the substance of her conversations with the employees.
Bayer told Blough that these was a consistent concern across
the majority of staff members on the shift in regard to Outer;
such as being treated unfairly by Outer, complaints about her
interaction style and overall professionalism.
Bayer also informed Blough that Kowinsky had expressed
concerns about recent moves that had been made and lack of
confidence about the management team in a profane and unpro-
fessional way, specifically repeating Kowinsky’s comments
that Byrd and Mickus “didn’t know what the fuck they were
doing,” and referring to the clinicians as “jackasses.”
Bayer expressed concerns that these comments made by
Kowinsky, could potentially evidence a way that he would
address patients. Bayer expressed concern about Kowinsky’s
employment with Respondent, given his interactions and the
potential for that to be exposed to the individuals that Respond-
ent serves. Bayer did not make a specific recommendation to
terminate Kowinsky at that time.
Blough replied that he shared Bayer’s concerns about
Kowinsky’s conduct, and directed her to contact O’Brien, to
arrange for further discussions concerning Kowinsky’s continu-
ing employment status with Respondent. Blough also asked
Bayer to summarize her notes in writing and send them to him,
so they could be reviewed and discussed with O’Brien on fur-
ther deliberation of Respondent’s decision.
Bayer as instructed telephoned O’Brien. Bayer informed
O’Brien that she had finished interviewing employees on the
night shift, who had expressed concerns about Outer, and that
she (Bayer) had concerns about Kowinsky and the language
that he used in their conversation. Bayer told O’Brien that
Kowinsky had called all clinicians “jackasses,” and stated that
Mickus did not know “what the fuck she is doing”, and neither
does Byrd. Bayer also discussed Outer’s performance and the
concerns raised by her staff members about Outer. O’Brien
asked if Bayer had reported these same issues to Blough.
Bayer replied that she had and it was decided that the matters
would be discussed later in a conversation with the three of
them. (O’Brien, Blough, and Bayer). Bayer also informed
O’Brien that she was recommending that Kowinsky and Outer
be terminated. Bayer explained to O’Brien that she was rec-
ommending that Kowinsky be terminated based on Kowinsky’s
performance at the meeting with her. Bayer stated that based
on the words that Kowinsky used, she was concerned how
Kowinsky would potentially interact with individuals in Re-
spondent’s program, and that it was appropriate to separate him
at this time.
O’Brien testified that her reaction when Bayer reported
Kowinsky’s comments to her was that she had concerns wheth-
er Kowinsky would be capable of managing his interactions
appropriately with individuals that Respondent serves. O’Brien
said if people didn’t have a level of appropriate communication
with senior administrators, she wasn’t sure that they would
have the same level of interaction with the endangered individ-
uals that Respondent serves. O’Brien further testified that the
Kowinsky’s statements troubled her, because the concerns that
Kowinsky stated about not having any trust in the clinical pro-
gram, and the clinical program is what guides the organization
and their management of the program. O’Brien was asked
about Kowinsky’s use of profanity, and O’Brien replied “that
ADVOSERV OF NEW JERSEY, INC. 11
was concerning but in and of itself, wasn’t the biggest concern.
The biggest concern was how he expresses his opinions about
the program.”
Bayer testified that she then typed up from her handwritten
notes a “verbatim” description of all her conversations with the
night shift and sent it to Blough in an email. The email sent on
12/16/13 at 12:55 pm. is as follows:
I arrived at UGL at approximately 5:30 am on Mon-
day, December 16, 2013. I began meeting with each staff
individually in the listed order with their noted concerns as
follows:
Todd Kowinsky: Todd indicated that he was very upset about
a recent change in staffing in UGL on overnight. He ex-
plained that he was told by both Kim and Alana that it was for
clinical reasons but he claimed “this is bullshit. All clinicians
are jack asses and Kim doesn’t know what the fuck she is do-
ing. She can’t make any decisions and neither can Rashad”.
He also said the shift is just fine and the problems are with the
admin not the staff.
Terri Outer: Terri stated that her shift is running fine and she
doesn’t understand what the problem is with staff complain-
ing. I asked her how does she present information to staff that
may be received as unfavorable and she claimed she presents
it as if it were her own idea. She denies skewing information
and claims that as far as she is concerned everything is good
with her staff. She treats everyone the same and staff just
don’t like getting feedback.
Montrise Jordan: She stated that she loves her job and her co-
workers as well as the individuals but finds her supervisor
highly unprofessional and unfair. She claims she was told she
would get one weekend off per month and hasn’t since she
started last April. (we are looking into this immediately) She
says Terri shows favoritism toward the staff she likes by
keeping them in 3 while everyone else gets to work in 1 and
2. She has heard her scream at staff while other staff is
around. She also talks about the staff’s personal business in
front of other staff. She is used to working in a more profes-
sional environment and hopes things improve soon.
David Irizarry: Mr. Irizarry had no complaints at all. His only
concern was having gift cards taxed on his paycheck. He said
he has not had any personal problems with anyone although
he had heard Terri yell at other staff members in his presence.
Jose Olcay: Joey was very vocal. He said that Terri has creat-
ed a very hostile work environment. She talks down to staff in
front of others, reports to staff when someone is being written
up and changes the rules when she sees fit. He states she is ut-
terly unprofessional, blames others when things go wrong and
punishes staff if they speak up about anything. He said staff is
all afraid to come forward because when they do she gives
them crap detail or finds reasons to write them up.
Randy Saracco: Randy reports the same thing, very hostile
work environment. Randy went as far as to say that several
times in the past she completed her paperwork a day early and
given it to him for the next day. Then she calls the evening
shift sup to say she will be late and the day shift sup to say she
had to leave early and then would not show up for shift. He
says she is targeting him now because she thinks he is a “rat”
because he comes to talk to the folks in admin. He also
claimed that she discards people’s time sheets that she is an-
gry with.
Chris Brown: He was also very vocal. He claimed that Terri is
totally unprofessional and targets staff who she feels are re-
porting on her. He said he was afraid of retribution for even
being here today. He stated that just downstairs a few minutes
prior Terri confronted him in the break room and told him not
to say anything bad about her. He said that when she has you
in her sights she will do things like mysteriously lose your
time sheet on Monday. He stated that she yells at staff in front
of others and threatens staff that they are going to be fired for
minor infractions such as being 3 minutes late for shift.
Erin Fracht: Erin said she had no concerns. She feels staff is
often lazy and have no work ethic and that’s why they get
yelled at. She felt Terri was fair and reasonable.
Mike McCarthy: Terri is too aggressive, screaming at staff
members in front of everyone. She has her favorites and eve-
ryone else is treated like garbage. He was very upset that she
told him he could not be an alternate supervisor because he is
in the reserves and he might get deployed so he would not be
a reliable supervisor. He was visibly angry stating that this
was illegal and he could have us fined for this. He basically
said she is nasty, angry and unprofessional and the morale of
staff even on others shifts is down because of her. No one
wants to work night shift and have to deal with her screaming
and yelling at them all night.
In passing I also heard from Chris Outer who said he will not
work overnight because of Terri even though she is his aunt. I
simply asked him how evening shift was doing and he pro-
ceeded to tell me that its fine until Terri gets on shift. He said
the other night Bartsch left her a note asking her to run a fire
drill and not realizing Bartsch was in the next room yelled
loudly “fuck that, I’m not doing that shit”. Bartsch then
walked back in the room and said, “fine don’t do it” and
walked away.
While he was telling me all of this, Danielle Verblaau came in
and laughed saying she wished her phone hadn’t broken yes-
terday so she could show me all the nasty things Terri has sent
to her via text.
I think we can come to the conclusion that Ms. Outer should
not be supervising staff based on these accounts.
My factual findings detailed above derived from a compila-
tion of the credible portions of the testimony of Kowinsky,
Outer, Paterno, O’Brien and Bayer, Bellizzi and Schackmann,
as well as from the handwritten notes that Bayer took of her
conversations with the night-shift employees and Bayer’s email
to Blough. In that regard, I note that while Bayer testified that
her email sent to Blough, allegedly recanted a “verbatim” re-
counting of her discussion with the employees, in fact this tes-
timony was not truthful. Although Bayer further testified that
she destroyed copies of written notes after she sent the email
versions to Blough, it turns out that a copy was made of
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bayer’s notes. Bayer was shown the notes at trial and identi-
fied the notes at trial as her signature and conceded that the
notes represented the most accurate statement of what was stat-
ed during her conversations with employees on December 16,
2013.
Further, Bayer’s notes contained reference to comments
made by employees Saracco and McCarthy about the Union
such as Kowinsky “is starting Union nonsense “again” and that
Kowinsky, Filipowicz ,and Outer were “all in on union”, and
Kowinsky “gave out union cards”. Additionally, Saracco stated
that employee “Alexis Munez said union cards.”
I have included these comments in my findings of fact, as
statements made by these employees to Bayer on that date,
which Bayer implicitly conceded were made although amazing-
ly, at trials she asserts that she did not recall these statements
about the Union by the employees. When asked why she didn’t
include them in the email to Blough allegedly describing the
conversations, Bayer testified that since her task during the
meetings was only to discuss complaints about Outer that she
decided to only include such subjects in her report to Blough.
I find Bayer’s testimony on this subject to be not credible
and her testimony in general to be unworthy of belief. I find
that her email to Blough, which eliminated any reference to
union activity to Kowinsky or other employees, although these
comments were made to her by employees, was done intention-
ally, to preclude any references to union activities in Respond-
ent’s records. This conduct reflects poorly on Bayer’s credibil-
ity as a witness and I rely on it as well to discredit her testimo-
ny where it conflicts with the testimony of Outer, Paterno and
Kowinsky in various respects. I have credited Paterno concern-
ing her testimony as to the Bayer and Mickus questioning
Paterno in October of 2013 if she knew about the union starting
up again and asking her whether Kowinsky was behind the
union’s removal.
I also rely on the fact that Mickus did not testify and did not
deny Paterno’s testimony, which I have credited, that Mickus
and Bayer made these statements to her. While Bayer did deny
that she made the comments attributed to her and Mickus by
Paterno, I credit Paterno and discredit Bayer’s denials that such
conversations occurred. I note further in this regard, that
Paterno is still an employee of Respondent, and that she testi-
fied contrary to the testimony of her supervisor. Such testimo-
ny is likely to be particularly reliable. Farris Fashions, 312
NLRB 547, 554 fn. 3 (1993), enfd. 32 F.3d 373 (8th Cir. 1994),
Gold Standard Enterprises, 234 NLRB 618, 619 (1988), Advo-
cate South Suburban Hospital, 346 NLRB 209 fn. 1 (2006).
Bloomington Normal Seating Co., 334 NLRB 141, 143 (2003).
I have essentially credited Kowinsky’s version of their con-
versation on December 16, 2013 over that of Bayer’s. In that
regard, I find Kowinsky’s testimony with respect to the meeting
to be far more detailed, trustworthy and reliable. Kowinsky
credibly testified that he had requested a meeting with Re-
spondent’s higher officials to discuss concerns of he and his
coworkers about the staffing changes announced at the monthly
staff meeting. Outer corroborated Kowinsky’s testimony in this
area and credibly testified that she informed Byrd of
Kowinsky’s request and Byrd subsequently informed her, that
Bayer would be coming to meet with employees, pursuant to
that request. Further Outer informed her shift that the requested
meeting was going to take place on December 16, 2013, and
that the purpose of the meeting was to address concerns with
the rotation of employees. Significantly, Byrd did not testify,
nor did Mickus. Thus Outer’s testimony as to the purpose of
the meeting as reflected above is credited and is consistent with
Kowinsky’s testimony.
Further Bellizzi, Respondent’s own witness, corroborated
Kowinsky’s testimony in contradiction to Bayer’s. Thus
Bellizzi testified that she, as well as Mickus and Byrd, were
present in the office, when Bayer told them that they (Mickus,
Byrd and Bellizzi) would not be participating in the meetings
due to the staff’s desire to meet with her (Bayer) privately.
I also rely on Kowinsky’s candid and forthright admission
that he referred to clinicians as “jackasses” and told Bayer that
Mickus and Byrd did not know what the “fuck they were do-
ing.”
Bayer’s testimony about the meeting was evasive, illogical
and generally unworthy of belief. As noted above, Bayer testi-
fied that Kowinsky was the only employee who mentioned
anything other than about Outer that day, and that she had no
knowledge of the 2013 organizing campaign or suspicion of
any union activity at Respondent’s facility. She further testi-
fied that she translated her handwritten notes of the meeting
verbatim into the email that she sent to Blough later that day.
However, her handwritten notes, shown to and identified by
her, establish that her testimony was untruthful and unreliable.
They establish that several employees specifically mentioned
subjects other than Outer, and that these employees specifically
mentioned Kowinsky’s union activities, as well as union activi-
ties of other employees. It is inexplicable for Bayer to testify
that she had no knowledge or suspicions of union organizing
when she herself wrote that employees told her that Kowinsky
was “starting up the union nonsense again” and that he was “all
in regarding the Union.” Instead of acknowledging these bla-
tant discrepancies, Bayer, at trial feigned ignorance and stub-
bornly professed an inability to recall these events. I agree with
General Counsel that the above reveals Bayer to be an untruth-
ful witness who was unable or unwilling to admit having fabri-
cated a significant position of her direct testimony.
I also note that Bayer in her testimony denied that she ever
was aware of Kowinsky’s union activities and support during
the 2012 union campaign. This testimony is even contradicted
by Respondent’s stipulation that it was aware of Kowinsky’s
union activities in 2012, as well as Blough’s testimony that he
was well aware of Kowinsky’s union activities and support
during the 2012 union campaign. Indeed, Respondent, as will
be detailed below, relies on those facts in arguing that since it
did not discharge Kowinsky after his union activities, when it
could have done so, in the summer of 2013, when he was sus-
pended twice for misconduct, that establishes the December
2013 discharge of Kowinsky was not motivated by his union
activities.
Thus Bayer was so intent on disclaiming knowledge of any
union activities or support by Kowinsky that she even contra-
dicted the stipulation and testimony of Respondent’s own wit-
ness, that Respondent was aware of Kowinsky’s 2012 union
ADVOSERV OF NEW JERSEY, INC. 13
activities and support.5
Finally, I have credited Outer’s testimony as detailed above,
that at the administration meeting held in the fall of 2013,
Bayer announced that she believed that there were union meet-
ings taking place on the night shift, because there were strange
cars coming in and out of the driveway at night. Bayer added
that if she finds out who is responsible (for the union), she will
“fire our asses.”
While Bayer denied making these comments, or indeed any
statements about union activities at any administration meetings
that she attended, I have not credited Bayer’s testimony in gen-
eral for the reasons I have detailed above, and I did not credit
her denials of Outer’s testimony in this instance as well.
I rely on the corroboration of Kowinsky of Outer’s testimo-
ny, in that Outer told him in the presence of Filipowicz and
Wosyluk, that the employees should “watch your asses,” be-
cause the administration believes that there were union meet-
ings taking place on the night shift.
I also note the failure of Respondent to call either Mickus or
Byrd to testify and corroborate Bayer’s denials and refute Out-
er’s testimony about Bayer’s reference to union activity at the
meeting and her threat to “fire our asses.” The failure of Re-
spondent to call either Mickus or Byrd to corroborate Respond-
ent’s series of events, leads to an adverse inference that I find
appropriate to draw that their testimony would have been ad-
verse to Respondent if they had been called to testify. Hialeah
Hospital, 343 NLRB 341, 393 fn. 20 (2004); Gerig’s Dump
Trucking, 320 NLRB 1017, 1024 (1996); International Auto-
mated Machines, 285 NLRB 1122, 123 (1987), enfd. 851 F.2d
720 (6th Cir. 1988).
While Respondent did call three witnesses who were present
at administration meetings, Sokoly, Bellizzi, and Schackmann,
and they each testified that they did not recall Bayer making
any comments about the Union or firing employees during the
administration meetings that they attended, I do not credit their
testimony in this regard. Sokoly did not even work at UGL in
2013, and admitted that she did not attend every administration
meeting during this time period. Schackmann refused to even
admit that Kowinsky was a good employee, despite her glow-
ing praise of his work performance in “way to go” a month
prior to his termination, and Respondent’s own stipulation that
“there is no dispute that Kowinsky was recognized as a good
employee.” I thus find that her repeated attempts to deny the
obvious, leads me to conclude that her brief, evasive testimony
should not be credited. Moreover, I also note that Schackmann
testified that nobody from Respondent ever stated whether they
were for or against the Union. This testimony is refuted by the
undisputed evidence that Respondent ran a vigorous antiunion
campaign in 2012, and it strains any credulity that Schackmann
did not receive this message. Thus Schackmann’s allegedly
supportive testimony of Bayer’s version of the conversations is
unworthy of credit.
As for Bellizzi I found her to be a credible witness, who ap-
peared to be recounting the facts to the best of her recollection,
without trying to slant her testimony, to form what witnesses

5 I note that Bayer was not present at trial when Blough testified, or
when the stipulation was entered into.
believed might be favorable to Respondent, as did Bayer and
Schackmann, as I have observed above.
However, Bellizzi was somewhat equivocal in her alleged
denials that of having heard Bayer bringing up the Union in any
administration meeting, or bringing up strange cars coming and
goings or making a statement that she would fire anyone who
supports unionization. Thus she testified that she did not re-
member any of these statements at any meetings, but did not
unequivocally deny that Bayer made such comments at any
meetings that Belizzi attended. To the extent that Bellizzi’s
testimony can be understood as a denial that Bayer made these
statements, Bellizzi’s supportive testimony is outweighed by
the lack of credibility of Bayer’s testimony, the person who
made the statements that I have credited above as well as the
adverse inference that I draw from Respondent’s failure to call
either Mickus or Byrd to corroborate Bayer’s version of events.
I note in this regard that Byrd and Mickus were the direct su-
pervisors of Kowinsky and were Respondent’s supervisors that
Kowinsky criticized (using foul language) for their actions and
performance which led to Kowinsky’s discharge according to
Respondent. Further Mickus and Byrd were both aware of the
fact that Kowinsky as well as other employees had criticized
the rotation plan for night-shift employees announced by Re-
spondent at the night-shift meeting, which led to the meeting
between Bayer and Kowinsky and the other night employees on
December 16, 2013. Therefore it is appropriate to draw an
adverse interference against Respondent for its failure to call
Mickus and Byrd as witnesses and conclude that their testimo-
ny would have been adverse to Respondent with regard to these
issues. Hialeah Hospital supra, International Automated Ma-
chines, supra.
G. The Termination of Kowinsky
On 12/30/13 Blough sent Kowinsky a text message notifying
him of his termination. The text message reads as follows:
Hello Todd this is Darren.
After attempting to arrange an in-person conference and then
making multiple attempts to call you that have been avoided, I
feel it is incumbent to conclude what needs to occur. Effec-
tive immediately, your employment has been terminated. A
letter will be forthcoming further explaining this matter and as
always you have a right of appeal.
I wish you the best on your future endeavors.
Three or 4 days later, Kowinsky received a document in the
mail, detailing the reasons for his discharge, entitled Advoserv
Disciplinary Action Form. The document is signed by Blough
and dated 12/30/13. It reads:
Concern: Behavior inconsistent with the Professional nature
of the organization.
During the course of Investigation, concerns have been raised
regarding your ability to conduct yourself in a manner that is
sufficient to support the individuals served in the program.
When Interviewed, on December 16, 2013 in response to
concerns from coworkers about negative interactions and
problems on the shift, you stated that “this is bullshit. All cli-
nicians are jackasses and Kim doesn’t know what the fuck she
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
is doing. She can’t make any decisions, and neither can
Rashad.”
While Advoserv respects your right to your opinion regarding
personnel and operations, as a result of the inappropriate lan-
guage and tone used in a professional setting, AdvoServ has
significant concerns regarding your interactions with cowork-
ers and individuals served. As such, Advoserv can no longer
maintain the employment relationship. Your employment
with the organization is hereby terminated, effective Decem-
ber 30, 2013.
After Kowinsky received the text message and the letter ex-
plaining Respondent’s decision, Kowinsky telephoned Blough.
Kowinsky expressed his concerns about Respondent’s actions
to terminate him. Blough replied that Kowinsky was dis-
charged for his unprofessional conduct and his unprofessional
interactions with the assistant state director, (Bayer), and Re-
spondent’s concerns that these interactions may occur with
individuals that Respondent serves outside the presence of su-
pervisors. Kowinsky responded, “so I’m being fired because
the administration is a bunch of clowns and I said so.” Blough
answered that this is an example of the lack of confidence
Kowinsky had in Respondent’s administration, and his conduct
in expressing that in an unprofessional manner. Kowinsky
asked about the appeal process, and Blough provided Kowinsky
with information about the appeal.
Respondent referred in its letter to Kowinsky to “Behavior
Inconsistent with the Professional Nature of the Organization,”
as the basis for its decision to terminate Kowinsky. In that
connection Respondent provides a manual to employees which
details personnel guidelines and practices, including discipli-
nary procedures and employee conduct.
After the table of contents, the handbook’s section entitled:
“INTRODUCTION,’ reads as follows:
This handbook is intended to provide employees with a gen-
eral understanding of AdvoServ’s personnel guidelines and
practices in conjunction with AdvoServ’s Policy Manual. It is
essential that employees familiarize themselves with its con-
tents, as it will answer many common questions employees
may have. However, it cannot anticipate or address every sit-
uation or question. For this reason, consider your immediate
Supervisor a valuable source of information, and feel free to
approach him/her with any questions you may have.
Employee handbook provisions are not contractual, and
AdvoServ reserves the right to modify, delete, add, amend,
change or revoke any or all guidelines or practices at any time
for any reason, with or without advance notice. AdvoServ re-
serves the right at its discretion to apply or not apply all or
some of the guidelines or practices contained in his handbook.
AdvoServ and its employees have the right to terminate
his/her employee relationship at will. AdvoServ reserves the
right to terminate any employee at any time for any lawful
reason.
Employment at Advoserv is not to be construed as a guaran-
tee of employment for any specific period of time or specific
type of work. All assignments and continued employment
will depend upon satisfactory performance and AdvoServ’s
determination of need for the services.
This handbook and the guidelines and practices contained
herein supersede and revoke any and all prior or past guide-
lines or practices, oral or written representations or statements
that are in conduct herewith.
The handbook then lists a number of examples of prohibited
conduct, including using profanity, stealing, and behaving in an
insubordinate manner. The list goes on to say that the exam-
ples of impermissible behavior listed above are not intended to
be an all-inclusive list.
Later on in the Manual, is a Section entitled “Disciplinary
Procedures.” It reads:
DISCIPLINARY PROCEDURES
DISCIPLINARY GUIDELINES
AdvoServ is committed to providing the best possible work-
ing conditions for its employees. Each employee is entitled to
be treated with respect, dignity and courtesy. Each employee
is obligated to give the organization his/her cooperation, loy-
alty, personal interest and to comply with AdvoServ rules,
guidelines and practices.
In the interests of creating an effective work environment,
AdvoServ has established a disciplinary process for situations
that merit correction. Supervisors and administrators shall ini-
tiate prompt action to discipline an employee when these
rules, guidelines and practices are not followed or when it is
evident that such action is necessary to maintain an orderly
and productive work environment. The severity of the disci-
plinary action shall be in keeping with the nature or gravity of
the offense.
It is expected that this procedure will eliminate the need for
further action. However, should the process not produce the
desired result, AdvoServ may terminate the employee.
An employee who violates any of AdvoServ’s rules and regu-
lations or standards of employee conduct shall be subject to
disciplinary action as set forth in the following Disciplinary
Action Grids of Progressive Discipline. However, all applica-
tions of the grid shall be at the sole discretion of AdvoServ.
In some instances AdvoServ may choose to ignore the pro-
gressive nature of the grid as a result of a breach of conduct as
it relates to the safety or abuse of persons and/or property, or
the aggravating circumstances of several or more violations of
various conduct standards. In every instance AdvoServ will
strive to be fair and consistent.
In the application of the progressive portion of the Discipli-
nary Action Grid, any action (s) within a particular category
that is twelve months or more before the last offense within
that category will not be counted within the progression, how-
ever, multiple offenses, or evidence of patterned behavior
may be used to determine aspects of evaluations, promotions,
demotions and continued career tracking.
The next several pages are entitled Disciplinary Grids and
divides offenses into Group One and Group Two offenses, with
different progressions listed for each offense. Group One of-
ADVOSERV OF NEW JERSEY, INC. 15
fense lists 17 offenses, which are of a less serious nature than
Group Two offenses and provide for more extended
progressional disciplinary steps. For example, one of the Group
One offenses is entitled “obscene, profane or abusive lan-
guage.” For this offense, the grid lists the following discipli-
nary progression. 1st offense – written reminder, 2nd of-
fense—written warning, 3rd offense=—suspension to termina-
tion and 4th offense—termination. Another example is enti-
tled, “Behavior inconsistent with the nature of the organization,
e.g. Discourtesy to Another.” I note that this statement was
referenced in Kowinsky’s termination notice. The progressive
discipline listed for this offense is, 1st offense—written re-
minder, 2nd offense—written warning to suspension, 3rd of-
fense—suspension to termination, and 4th offense—
termination.
Group Two offenses include willful destruction of or abuse
of individual staff, or organization property and theft of the
organization and violence or fighting with other employees or
individuals served or visitors to the workplace. For these of-
fenses, the grid lists first offense, suspension or termination,
and second offense, termination. Another step two listing is
“sleeping on the job or placing oneself in a position conducive
to sleeping on the job.” For this offense, the grid lists 1st of-
fense written warning to termination, second offense written
warning to termination, and third offense, termination. Another
offense listed is entitled “Endangering the health and welfare of
individuals we serve, and employee or organization guests. For
this offense the progression is 1st offense written warning to
termination, second offense suspension to termination, and
third offense, termination.
Subsequent to the receipt of the letter of discharge from Re-
spondent, Kowinsky retained an attorney to represent him in his
appeal of Respondent’s discharge decision. His attorney, Ed-
ward Azar sent the following letter to Respondent:
January 20, 2014
AdvoServ
Katherine O’Brien, Human Resources
2520 Wrangle Hill Road, Suite 200
Bear, DE 19701
Dear Ms. O’Brien:
Please be advised that our office represents Todd
Kowinsky, a former employee of AdvoServ.
Mr. Kowinsky was wrongfully terminated by
AdvoServ on or about December 30, 2013. In reviewing
this matter with Mr. Kowinsky, it is clear and unequivocal
that AdvoServ has failed to comply with the provisions
and guidelines set forth in their employee manual and the
disciplinary procedure provided therein.
Furthermore, it appears that one of the motivating fac-
tors for terminating Mr. Kowinsky was his recent recovery
of a significant worker’s compensation claim against
AdvoServ.
Pursuant to your disciplinary action form, Mr.
Kowinsky does hereby request an appeal of his termina-
tion. Mr. Kowinsky has indicated his intent to institute le-
gal proceedings against AdvoServ for any and all damages
regarding this matter. I would like to discuss a resolution
and reinstatement of Mr. Kowinsky immediately and
without any further delay. If it cannot be resolved, it is
his intention to proceed further. Please be guided accord-
ingly.
Very truly yours,
Edward P. Azar
EPA/JC
Cc: Todd Kowinsky
On February 4, 2014, Azar received the following response
from Respondent’s General Counsel, Harlow Middleton:
February 5, 2014
Edward P. Azar, Esquire
Law Offices of Edward P. Azar, LLC
Gallant Professional Building
2840 Route 23 South
Newfoundland, NJ 07435
Re: Todd Kowinsky
Dear Mr. Azar:
Thank you for your letters of January 20, 2014 and
January 31, 2014. I apologize for being tardy in my reply,
but had to gather facts and materials.
Mr. Kowinsky was terminated from employment on
December 30, 2013. Per the Employee Handbook, he had
ten (10) days within which to appeal the disciplinary ac-
tion. Your letter of January 20, 2014 requests an appeal.
Although it is outside the time allowed, AdvoServ of New
Jersey, Inc. will waive the appeal time in order to allow
Mr. Kowinsky due process.
Please send your Letter of Appeal to the attention of
Robert Bacon, Chief Operations Office and Katherine
O’Brien, Director of Human Resources for AdvoServ of
New Jersey, Inc., 2520 Wrangle Hill Road, Suite 200,
Bear, Delaware 19701.
I would suggest you give Mr. Kowinsky’s version of
the facts and his reasons for believing the termination was
in error. I would suggest you have it to them by February
16, 2014.
Very truly yours,
Harlow C. Middleton
General Counsel
HCM: bah
Cc: Robert Bacon, Chief Operations Office; AdvoServ of
New Jersey, Inc.
Katherine O’Brien, Director of Human Resources; Advoserv
of New Jersey, Inc.
On April 1, 2014, Middleton sent the following letter to
Azar:
Edward P. Azar, Esquire
Law Offices of Edward P. Azar, LLC
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Gallant Professional Building
2840 Route 23 South
Newfoundland, New Jersey 07435
Re: Todd Kowinsky; Appeal of Termination
Dear Mr. Azar,
An appeal Review will be held on Tuesday, April 22, 2014 by
Katherine O’Brien, Robert Bacon and Darren Blough at the
Doubletree by Hilton Hotel Mahwah, 180 Route 17 South,
Mahwah, New Jersey 07430.
The issue to be reviewed under the Appeal is “Was Todd
Kowinsky wrongfully terminated for behavior inconsistent
with the professional nature of the organization.
The following documents will be reviewed for the appeal:
1. The AdvoServ Disciplinary Action Form
2.Text from Darren Blough to Todd Kowinsky notifying of
separation
3. Statement from Darren Blough regarding follow-up phone
call
4. Pages 30 through 33; and 46 through 52 of the Employee
Handbook
5. Your letter dated January 20, 2014 as basis for appeal.
If you have any other evidence you would like reviewed to
the point of the appeal, please provide ten (10) days prior to
the appeal date, so that it can be reviewed and the additional
material provided to the Appeal Review for rebuttal purposes.
Also, in your letter dated March 24, 2014, you indicated that
the Employee Handbook is a contract. That is not correct.
The handbook is a guideline that can be altered by the Em-
ployer without notice. All, a part, or some can be applied in a
situation at the discretion of the employer. The employment
is explicitly “employment at will”. Please see the handbook.
The Appeal Hearing, which is reflected in the above corre-
spondence, was held on April 22, 2014, in Mahwah, New Jer-
sey, as scheduled. Present were Azar, Kowinsky, O’Brien,
Blough, and Bob Bacon.
Azar raised again the contention of Kowinsky, that Respond-
ent retaliated against him because of his workmen’s compensa-
tion claim, and also asserted that Kowinsky would love to have
his job back. Azar further contended that the infraction that
Respondent cited for Kowinsky’s discharge was a tier 1 viola-
tion and that termination should not be issued until the fourth
violation for the offense. Thus, Azar asserted that Kowinsky
should not have been discharged until the fourth violation, and
that Kowinsky would like to have his job back. Azar conceded
that Kowinsky used the F word in his conversation with Bayer
and used other “flavorful vocabulary.”
Bacon responded that the level of gravity of the offense
committed by Kowinsky was beyond the disciplinary grid.
Kowinsky stated that he did not know that the meeting with
Bayer was an investigation, and noted that he had asked for a
meeting because of concerns by the shift about how the shift
was being treated. Kowinsky said that the night-shift employ-
ees were being treated unfairly, since other employees on other
night shifts do not have to move.
Blough responded that Respondent’s goal was to shift staff
to prevent unfair allegations by the clients.
Kowinsky responded that he had spoken to the behavior ana-
lysts, and the residents shouldn’t be telling the workers when to
work and where to work. Kowinsky added that it is unfair to
switch the employees because of statements made by clients
about behavior of employees. Kowinsky, suggested why move
staff, and why not move the residents.
Blough interjected that if allegations are made by a resident,
Respondent must take some action.
Kowinsky recounted that he had asked for a meeting, and
that Bayer came in response. Kowinsky, also asserted that he
believed that the “closed door” meeting was an open forum,
and that Respondent was “after Terri Outer.” Kowinsky stated
the rotation system made no sense, and admitted that he said to
Bayer that the analysts were “jackasses,” and that they don’t
know what they are talking about. He also recounted that he
told Bayer that “Kim don’t know how to make a fucking deci-
sion, and neither did Rashad.” After he made that comment,
Kowinsky stated that Bayer replied, “Why the fuck won’t you
take the supervisor position?” Kowinsky also added that Bayer
laughed when he made his comments about Mickus and Byrd,
and that Bayer never said to Kowinsky at the meeting that his
remarks about them were inappropriate. Kowinsky further
stated that he had told Bayer at the meeting that when things
are straightened out, he would be glad to take the supervisory
job. Kowinsky added that Respondent should have a closed
door policy, with confidence to talk about issues.
Bacon asked Kowinsky if Bayer had used derogatory lan-
guage about others. Kowinsky replied that Bayer had not used
derogatory language about others, except that Bayer had re-
ferred to 1199 as “those fucking assholes.” Kowinsky also
made reference to the fact that when he mentioned the union, in
his conversation with Bayer, that she then pulled out her pen
and started writing. Apart from the above comments made by
Kowinsky, about statements made by him and Bayer about the
Union at their meeting, Kowinsky did not assert at the appeal
hearing, (nor did his attorney), that Kowinsky was terminated
because of his activities and support of the Union.
Kowinsky also admitted that when he spoke to Blough about
his discharge, he stated to Blough, “I can’t believe I’m being
fired because a bunch of clowns are running this place.”
Bacon then asked if Kowinsky had so many concerns about
the leadership of Respondent, “why did he want to work
there”?
Kowinsky replied that he liked his job, liked what they were
supposed to do, and did not think it’s a problem with the super-
visors. Kowinsky added that “we’re workers, and they use to
care about how we feel.” Kowinsky also commented about the
lack of professionalism among Respondent’s administrators
and provided an example of Byrd saying “shut the fuck up,” to
one of Respondent’s employees.
Azar stated that Kowinsky should be more polished about
the way he approaches the administrators, and proposed that
Kowinsky be permitted to take a sensitivity training course as a
condition of returning to work.
Kowinsky responded that he knew how to behave or speak
when he needed to, and that he always felt comfortable talking
ADVOSERV OF NEW JERSEY, INC. 17
to Bayer, Byrd, and Mickus.
Bacon asked Kowinsky if he was permitted to return to
work, would he “be more respectful and “professional?”
Kowinsky replied “yes, I would 100% be more respectful
and professional.
Azar then reiterated that the goal was for Kowinsky to get
back to work. He asked a question if there were classes availa-
ble concerning behavior and professional behavior. No one
responded to that inquiry.
The parties however agreed that Respondent would provide a
response to the appeal within 10 days.
On May 1, 2014, O’Brien sent Azar a letter denying
Kowinsky’s appeal. The letter reads as follows:
May 1, 2014
Edward P. Azar, Esquire
Law Offices of Edward P. Azar, LLC
Gallant Professional Building
2840 Route 23 South
Newfoundland, New Jersey 07435
Re: Todd Kowinsky; Appeal of Termination Findings
Dear Mr. Azar,
An Appeal Review was held on Tuesday, April 22, 2014 by
Appeal
Committee Katherine O’Brien, Robert Bacon and Darren
Blough at the Doubletree by Hilton Hotel Mahwah, 180
Route 17 South, Mahwah,
New Jersey 07430.
The issue reviewed under the Appeal was “Was Todd
Kowinsky wrongfully terminated for behavior inconsistent
with the professional nature of the organization?”
The following documents were reviewed by the Committee
prior to the appeal:
1. The AdvoServ Disciplinary Action Form
2. Text from Darren Blough to Todd Kowinsky notifying of
separation
3. Statement from Darren Blough regarding follow-up phone
call
4. Pages 30 through 33; and 46 through 52 of the Employee
Handbook
Your letter dated January 20, 2014 as basis for appeal.
You initiated conversation during the review, indicating that
Mr. Kowinsky wanted to resume his position, and that in your
opinion, AdvoServ did not strictly adhere to the disciplinary
grid provided in the employee handbook. When offered the
opportunity to present his perspective, Mr. Kowinsky stated
his desire to return to his position. When asked to describe
events leading to termination, Mr Kowinsky acknowledged
the statements he made to the Assistant State Director, but did
not express any remorse for those statements. Mr. Kowinsky
referenced others behavior and use of profanity, although he
admitted that others did not direct such behaviors toward an-
other AdvoServ employee in a derogatory or insulting man-
ner.
In further conversation, Mr. Kowinsky made statements re-
garding his negative opinion of personnel actions taken by the
organization, including worksite reassignments based on resi-
dent needs. Mr. Kowinsky demonstrated a lack of under-
standing of the clinical needs of individuals served, necessary
client safeguards and overall respect for the living arrange-
ments of our individuals. While staff preferences are im-
portant to the organization, the ultimate guide for every deci-
sion made must first and foremost be the welfare of client.
Mr. Kowinsky’s testimony clearly delineates his opinion that
staff needs should take precedence over the needs of our indi-
viduals.
During the review, it is noted that you asked Mr. Kowinsky
whether he would be willing to participate in sensitivity train-
ing as a condition of return, and redirected Mr. Kowinsky’s
negative response to your suggestion. At the close of the re-
view, Mr. Kowinsky was asked again about sensitivity train-
ing, and stated that he knows how to act professionally when
needed.
In the Committee’s review of the handbook and application of
the disciplinary grid per your appeal that the disciplinary grid
was not followed, the Committee notes that the introductory
paragraph to the Discipline Grid, page 46 of the Employee
Handbook, it is explicitly stated that “all application of the
{disciplinary} grid shall be at the sole discretion of
AdvoServ.” As such, the decision to terminate Mr.
Kowinsky’s employment for unprofessional conduct is con-
sistent with the guidelines presented within the Employee
Handbook. Further, although Mr. Kowinsky expressed a de-
sire to have his job back and indicated his love for his job per
his testimony, the Committee does not believe that his feel-
ings toward the program or its management have significantly
changed, nor does the committee believe there will be a
change in Mr. Kowinsky’s opinion or behavior if returned to
work. Finally, the Committee notes that throughout the hear-
ing phase, Mr. Kowinsky refused any positive recommenda-
tions from his attorney.
After careful assessment of the application of the Employee
Handbook, the statements made by Mr. Kowinsky during the
review on April 22, his lack of enthusiasm or agreement with
suggestion by his own attorney, and all documents mentioned
above, the consensus of the Appeal Committee is to uphold
the original decision to terminate employment. The Commit-
tee did not feel that Mr. Kowinsky’s reinstatement was in the
best interest of the organization and the individuals it serves,
or that the decision to terminate was made properly.
Very truly yours
Katherine O’Brien, M.S., HR
Corporate Human Resources Director
Cc Robert Bacon, CCO
Darren Blough, New Jersey State Director
Harlow Middleton, General Counsel
Azar responded with the following letter dated May 14, 2014.
Law Offices
Edward P. Azar, L.L.C
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Gallant Professional Building
2840 Route 23 South
Newfoundland, NJ 07455
May 14, 2014
Katherine O’Brien, M.S., PHR
Corporate Human Resources Director
Advoserv
2520 Wrangle Hill Road – Suite 200
Bear, DE 19701
RE: Todd Kowinsky – Appeal
Dear Ms. O’Brien:
I acknowledge receipt of your correspondence of May 1,
2014. Your Decision is unfortunate. I believe that clearly the
decision by Advoserv is actionable and it is Mr. Kowinsky’s
intent to file litigation against Advoserv for his wrongful ter-
mination. You should also be aware that my client will make
an allegation of a violation of the law against discrimination.
Further, the decision to terminate Mr. Kowinsky shortly after
Mr. Kowinsky was successful in his Worker’s Compensation
lawsuit against Advoserv. There is no doubt that his award
entered into the determination to terminate Mr. Kowinsky.
You should also be aware that in the event Mr. Kowinsky is
successful in his litigation it is our intent to seek the imposi-
tion of damages and legal fees as provided by law. Please be
guided accordingly.
Very truly yours
Edward P. Azar
O’Brien replied to Azar’s letter of May 14, 2014, with a let-
ter dated May 20, 2014 as follows:
May 20, 2014
Edward P Azar, Esquire
Law Offices of Edward P. Azar, LLC
Gallant Professional Building
2840 Route 23 South
Newfoundland, New Jersey 07435
Re: Todd Kowinsky; Appeal of Termination Findings
Dear Mr. Azar,
AdvoServ received you letter of May 14, 2014.
We disagree with your assertion that Mr. Kowinsky’s termi-
nation was wrongful, or that he was terminated in any manner
or for any reason that would violate the law against discrimi-
nation.
Mr. Kowinsky’s worker’s compensation award was definitely
not a factor in the decision to terminate; as previously stated,
none of the parties involved in the decision to terminate had
any knowledge of the worker’s compensation award. Mr.
Kowinsky was successful in his worker’s compensation claim
based on the injury/illness sustained, and the award was made
under the fully-guaranteed insurance policy, with no impact to
the organization.
Mr. Kowinsky was terminated for his behavior on December
16, 2013, and the unprofessional language and direction
thereof, along with Advoserv’s resultant concerns regarding
Mr Kowinsky’s ability to interact professionally with individ-
uals served.
Katherine O’Brien, M.S PHR
Corporate Human Resources Director
cc. Robert Bacon, COO
Darren Blough, New Jersey State Director
Harlow Middleton, General Counsel
As noted above, from June 14, 2014, the Union filed its
charge, alleging that Respondent discharged Kowinsky in retal-
iation for his participation in protected activities on behalf of
and in support of the Union.
My findings above concerning the events at the April 22,
2014 Appeal Hearing is derived from a compilation of the cred-
ited portions of the testimony of O’Brien, Blough, and
Kowinsky, plus O’Brien’s notes of the Appeal Hearing.
Most of the facts and comments made are not in dispute.
However, Kowinsky testified that he specifically agreed to his
attorney’s suggestion at the meeting, that he would take sensi-
tivity courses as a condition of his reinstatement. I do not cred-
it Kowinsky’s testimony in that regard. I note that both Bayer
and Blough denied that he did so, and most significantly
O’Brien’s notes didn’t reflect that Kowinsky agreed to his at-
torney’s suggestion. Although the notes did not reflect that
Kowinsky unequivocally rejected his attorney’s idea, it does
indicate that his response was that he always felt comfortable
talking to Bayer, Byrd and Mickus which is consistent with
O’Brien’s testimony that I have credited that Kowinsky re-
sponded that he knew how to behave and speak when needed
to. Further, I note that in Respondent’s letter rejecting
Kowinsky’s appeal, O’Brien specifically stated that Azar had
asked Kowinsky at the hearing whether he would be willing to
participate in sensitivity training as a condition of returning and
“redirected Mr. Kowinsky’s negative response to your sugges-
tions. Mr. Kowinsky was asked again about sensitivity train-
ing, and stated that he knew how to act professionally when
needed.” O’Brien further commented later in her letter after
explaining the reasons why Respondent terminated Kowinsky
and why it would not change its mind after the Appeal.
O’Brien stated “finally, the committee noted that throughout
the hearing phase, Mr. Kowinsky refused the positive recom-
mendations from his attorney.”
Notably, when Azar responded to O’Brien’s letter on May
14, 2014, stating that Respondent’s decision was unfortunate,
and that Kowinsky intends to file litigation for wrongful termi-
nation and make an allegation of violation of the law against
discrimination, Azar did not dispute O’Brien’s assertion in her
letter that Kowinsky had made a negative response to Azar’s
suggestion at the Appeal Hearing that Kowinsky participate in
sensitivity training as a condition of his return to work with
Respondent.
Based on the above factors, I do not credit Kowinsky’s tes-
timony that he agreed to take a sensitivity training course as
ADVOSERV OF NEW JERSEY, INC. 19
suggested by his attorney at the Hearing; and instead that he
responded as I have detailed above, that he knew how to be-
have when he needed to, and that he always felt comfortable
talking to Bayer, Byrd and Mickus.
Blough, Bayer and O’Brien all testified concerning Re-
spondent’s decision to terminate Kowinsky and to some extent
Outer. They testified consistently that the decision to discharge
both Kowinsky and Outer was made during a conference call
involving these three participants. With respect to Outer, she
was terminated because of insufficient performance of job re-
sponsibilities and behavior inconsistent with the professional
nature of the organization, including Outer’s comments to ser-
vice member McCarthy that he could not be promoted to su-
pervisor because of his reserve commitments. The disciplinary
form sent to Outer dated 12/30/13, explained her termination as
follows:
EMPLOYEE: Terri Outer
DATE: December 30, 2013
CONCERN Behavior Inconsistent with the Professional
Nature of the Organization, Insufficient Performance of As-
signed Responsibilities
During the course of investigation into your willingness and
ability to conduct yourself within the professional boundaries
required of a Program Supervisor, it has been determined that
your communication with coworkers and subordinates, your
pattern of reactive behavior toward subordinates, and specifi-
cally, your discriminatory statements regarding military ser-
vice members, do not comport with the expectations of the
organization.
You have been provided feedback regarding inappropriate in-
teractions with subordinates as recently as October 2013, as
well as written feedback regarding insufficient performance in
March 2013.
As a result of the cumulative nature of the concerns identified,
and the lack of improvement occasioned by the feedback previ-
ously provided, AdvoServ can no longer maintain the employ-
ment relationship. Your employment with the organization is
hereby terminated, effective December 30, 2013.
TYPE OF ACTION TAKEN;
Documented Counseling
Written Reminder
Written Warning
Suspension – Number of Days
X Termination
With respect to Kowinsky’s termination the participants dis-
cussed Kowinsky’s conduct at the December 16 meeting with
Bayer, his use of profanity in expressing his concerns to Bayer,
and his opinions about the program and the administrators and
supervisors utilized by Respondent to run the program. Bayer
recommended that Kowinsky be terminated based on this con-
duct of Kowinsky and that she believed that Kowinsky’s behav-
ior in communicatting his concerns to administrators, might
also carry over to his interacting with the clients that Respond-
ent serve. Both Blough and Bayer agreed with these sentiments
of Bayer and her recommendation to terminate Kowinsky.
Although Blough is the ultimate decision maker in discharge
cases, this decision to terminate Kowinsky was made by con-
sensus of Bayer, Blough and O’Brien during their conference
call. All three participants testified that Kowinsky’s union
activity had no bearing on their own and Respondent’s deci-
sions to discharge Kowinsky. As noted above Bayer testified
that she was unaware of any union activities or union support
by Kowinsky at any time. O’Brien testified similarly, except
that she did recall hearing some discussion from staff members
through Administration that Kowinsky might be interested in
supporting a union, but she could not recall when it was, or
who specifically she ascertained this information from.
While O’Brien and Blough both testified that Kowinsky’s
past record, and more particularly his two prior suspensions
were discussed during this conference call, Bayer did not recall
any mention or discussion of Kowinsky’s prior record or his
prior suspensions during this conference call.
In regard to the issue of Kowinsky’s prior record, both
Blough and O’Brien testified as noted, that Respondent consid-
ered Kowinsky’s prior record, and his two suspensions in de-
ciding whether to terminate him. O’Brien testified that
Kowinsky was terminated based on the interaction that
Kowinsky had with Bayer and also a review of recent discipli-
nary history. She discussed and referred to Kowinsky’s two
previous suspensions, and testified further that had Kowinsky
not had those two prior disciplines, “it would definitely have
impacted our decision making.” O’Brien also testified that the
offense for which Kowinsky was suspended in June of 2013,
for sleeping on the job or placing oneself in a position condu-
cive to sleeping on duty,” could have resulted in Kowinsky
being terminated, based on Respondent’s disciplinary Grid.6
O’Brien testified that she was involved in the discipline of
Kowinsky at that time, and that Respondent chose not to dis-
charge him; although it could have, due to his previous perfor-
mance and history with the organization.
Blough testified similarly, that Kowinsky’s prior disciplines,
and evaluations were considered in Respondent’s decision to
terminate him on December 30, 2013. He further testified that
he was aware of Kowinsky’s union activities and support dur-
ing the 2012 union campaign, in that he was informed by staff
members in 2012 that Kowinsky was an advocate for the organ-
izing attempts and was taking an active role. Notwithstanding
that knowledge, Blough testified that he approved the suspen-
sion of Kowinsky on June of 2013, rather than a discharge, as
Respondent could have done under its disciplinary system.
According to Blough, Respondent did not terminate Kowinsky
in June of 2013, after “a review of Mr. Kowinsky’s employ-
ment history in regards to his evaluations, and review of the
rubric determined that the fairness to Mr. Kowinsky would be
to provide him the suspension, as opposed to a termination at
that point.” O’Brien also testified about the handbook pages
relied upon by Respondent in its decision referring to p. 33 (m)
“using profanity or abusive language,” and p. 8 “behavior in-
consistent with the professional nature of the organization.”
O’Brien also testified that although it has a progressive disci-

6 As noted above under that Grid, this conduct is a Group two Of-
fense, and for a first offense, the penalties are “written warning to ter-
mination.”
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
plinary policy, as detailed in its Manual, that Respondent re-
serves the right to implement all or part of that progressive
disciplinary action as the situation warrants. She testified fur-
ther that Respondent determined “in light of Mr. Kowinsky’s
two suspensions earlier in 2013, the organization determined
that it was necessary to move more immediately to termination
rather than step by step through one specific category.” She
was asked by her counsel why the termination letter did not
identify the other disciplines as being part of the reason for
termination. She replied, “At the time, while that was all part
of the consideration, we did not seem—, we didn’t think it was
necessary to document it in that way.” She was asked if the
primary reason for the discharge was Kowinsky’s language,
and O’Brien responded “correct.” O’Brien added that Re-
spondent was concerned with Kowinsky’s ability to work with
and take directions from people that he was saying were jack
asses and couldn’t make decisions. O’Brien answered that
using profane language is not always grounds for termination,
but asserts that the decision is based on the context and the
individual’s prior disciplinary record.
O’Brien also provided testimony that an employee named
Terrence Gunn who was employed by Respondent at the UGL
facility was discharged for using the “N” word repeatedly in
speaking about and to coworkers, even though Gunn had not
received any prior warnings or other discipline for similar con-
duct. Respondent’s files included a letter to NJ Unemployment
concerning Respondent’s decision to terminate Gunn. Blough
identified the document prepared by Donna Elliott, State Office
Manager, and testified that although he did not recall the inci-
dent in question, he conceded that the letter reflects Respond-
ent’s account of what happened.
The letter reads:
ADVOSERV OF NEW JERSEY, INC. 21
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Blough also furnished testimony that once he heard about
Kowinsky’s comments to Bayer, and Bayer’s concerns about
Kowinsky’s continued employment with Respondent, he shared
Bayer’s concerns. According to Blough he was concerned that
Kowinsky might use profanity in the presence of the residents
of the homes. Additionally, Blough asserts that he was con-
cerned that Kowinsky felt comfortable expressing himself in
such a way to basically the second ranking administrator in the
State of New Jersey. Thus, Blough testified that he believed for
these reasons, after his conversation with Bayer, that Kowinsky
had committed a terminable offense, and asked her to contact
O’Brien to coordinate a meeting to discuss a determination by
Respondent with respect to Kowinsky as well as to Outer.
Blough further testified that during the conference call, the
participants went over the notes that Bayer had taken about the
meeting, and the concerns that Blough and Bayer had with it
continuing to employ Kowinsky, and O’Brien agreed. Thus, all
three participants agreed that Kowinsky should be terminated.
Blough testified he is the decision maker in discharge cases, but
he does consult with O’Brien about such actions.7 Blough also
testified that Respondent did not apply its progressive discipli-
nary position to Kowinsky in this situation. According to
Blough, the first offense for the offense that Kowinsky was
cited for would not warrant a termination based on the grid
solely. However, Blough asserts, “given the gravity of the
offense and given the environment he expressed that, and his
obvious lack of confidence in the administration and the pro-
grams, we felt it was necessary, because we didn’t feel a pro-
ductive relationship would continue with Mr. Kowinsky and the
programs, and it would not benefit the individuals.” Blough
added that the progressive disciplinary policy is not mandatory,
and it allows for discretion by Respondent, which it exercised
in deciding to terminate Kowinsky for this conduct.
Blough also testified that Respondent determined that
Kowinsky’s conduct was so severe that it merited steeper pun-
ishment and that Respondent considered his other disciplines
and previous offenses, as part of its review.
Blough also testified that he had no knowledge of
Kowinsky’s renewed union activities in 2013, or indeed that
there were any union activities in 2013, amongst Respondent’s
employees.
Blough further testified that he would have been notified of
any renewed union activity by Kowinsky or other employees
that came to the attention of any of Respondent’s supervisors.
Blough further testified about the two suspensions issued to
Kowinsky. According to Blough he approved Kowinsky’s 3
day suspension, recommended by Mickus on 6/24/13 for
“sleeping on the job or placing oneself in a position conducive
to sleeping on the Job.” Blough testified that he was aware of
Kowinsky’s union activities in 2012, when he approved the
suspension, although Kowinsky could have been terminated for
this conduct. As noted above, Blough testified that after re-
viewing Kowinsky’s employment history and his evaluations, it
was determined by Respondent in favor to Kowinsky “that he
would be suspended, as opposed to termination at that time.”
I note that the Disciplinary Action Form from Respondent’s

7 According to O’Brien she must agree to before a termination is
approved. In the case of Kowinsky’s termination, O’Brien testified that
there was a consensus between Bayer, Blough, and herself, and that all
three of them were the decision makers.
files, describing this incident, was prepared and signed by
Mickus, as the person taking action, and by Mickus as Direc-
tor’s signature. There is a line on the form Offending State
Programs Director Date of Notification (for Suspension or
Termination). This is Blough’s title. There is no date on this
line, nor any signature of Blough on this form.
Blough also testified about the second suspension of
Kowinsky on 8/22/13. Blough was not involved in the original
decision by Mickus to suspend Kowinsky for 2 days for “en-
dangering the welfare of the residents as per Advoserv Em-
ployee Handbook.” As related above, this discipline resulted
from Kowinsky’s refusal to stay for mandatory overtime due to
staffing needs. Kowinsky stated to Mickus that he wasn’t stay-
ing for coverage, because the first staff member refused to stay,
and that Kowinsky left the premises without proper staff cover-
age.
The Disciplinary notice from Respondent’s files was pre-
pared by Mickus, and contained written comments by
Kowinsky, that he wished to appeal the termination because
Respondent did have proper staff coverage and the welfare of
the residents was not endangered. Kowinsky after he received
the discipline from Mickus, texted Blough and asked to speak
with him. A few days later they spoke, and Kowinsky ex-
plained to Blough, as he had stated in written comments on the
form, that a staff member did stay, to cover the next shift, so
that the clients were not placed in danger and their welfare was
not endangered. Kowinsky did not protest the suspension and
acknowledged that discipline was warranted, but did protest the
language used, about endangering the welfare of clients.
Blough further testified that he agreed with Kowinsky’s ar-
gument and told Kowinsky that he would discuss the situation
with Mickus. According to Blough, he spoke to Mickus, who
confirmed Kowinsky’s recitation of the facts that there was
coverage for the shift. Based on that Blough states, they
(Mickus and Blough) agreed that the language in the notice
could be altered to” “not following an established rule.”
Blough then informed Kowinsky that Mickus would reach out
to him to discuss the revision of the action. According to
Blough, Kowinsky was happy with how this matter was re-
solved.
General Counsel introduced into the record several docu-
ments from Respondent’s files, documenting disciplinary ac-
tions against employees of Respondent, at other facilities in the
state of New Jersey, not the UGL facility involved here. These
facilities are under the overall supervision of Blough. Howev-
er, the record reflects that Blough was not involved in the deci-
sion to discipline these employees and that he was not familiar
with or aware of any of these disciplines. Thus the record re-
flects that unless the discipline involves a suspension or a ter-
mination, he is not consulted or involved, unless the employee
brings the matter to his attention.
Employee Anginetta Carter worked for Respondent in a fa-
cility in Gloucester County supervised by Kimberly Francese.
The discipline was issued by Francese to Carter on 9/18/13,
referencing Carter’s conduct on 8/26/13. It refers to a Group 1
offense, as “Behavior inconsistent with the professional materi-
al of the organization.” The discipline issue was a “written
reminder.” The document reads as follows:
ADVOSERV OF NEW JERSEY, INC. 23
Francese also issued a written warning to employee Jennifer
Gregory on 5/8/13, documenting Gregory’s conduct on 4/28/13.
The offense cited was Group 2 offenses “physical, verbal or
psychological abuse or neglect of individuals or other staff.”
This warning reads as follows:
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On May 14, 2013, supervisor—Ransom issued a written re-
minder to employee Maribell Hernandez who worked at a facil-
ity of Respondent in Gloucester County. This discipline refer-
enced a Group 1 offense “Obscene profane or abusive lan-
guage.” It reads as follows:
ADVOSERV OF NEW JERSEY, INC. 25
Terry Outer also furnished testimony concerning disciplinary
actions taken by her as supervisor to employees, as well as one
incident concerning discipline against her with respect to the
latter incident, Outer received a written warning, signed by
Mickus relating to conduct by Outer on 10/14/13. The disci-
pline was for use of profane and abusive language towards
another staff member and behavior inconsistent with the pro-
fessional nature of the organization. It reads:

26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Outer also testified concerning disciplinary notices that she
issued to employee Eric Doucette on August 15 and August 19,
2012, relating to conduct of Doucette on August 10 and 15
respectively. On August 15, 2012, Outer issued a disciplinary
notice to Doucette, of counseling/retraining, for leaving work
without authorization. On the disciplinary form, Doucette re-
fused to sign, and wrote the words “Bull Shit” in the space for
his signature. This disciplinary notice reads:
ADVOSERV OF NEW JERSEY, INC. 27
Outer then notified her immediate supervisor Byrd about
Doucette’s conduct and provided him a copy of the notice,
where Doucette wrote “Bull Shit” in the space designated for
his signature. Byrd instructed Outer to issue a write up for
Doucette for using language disrespecting the company. Outer
then issued the following written warning to Doucette, dated
8/14/12, which Doucette refused to sign. It reads:
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ADVOSERV OF NEW JERSEY, INC. 29
Sometime in late 2012 or early 2013, Outer gave employee
Steven Matos a writeup for kicking the door open in the admin-
istration building. Matos wrote on the disciplinary report given
to him by Outer the words, “suck my balls.” Outer placed this
write up in the mailbox of Art Mongelli, the assistant director
for Respondent at the time. According to Outer, Matos was not
disciplined by Respondent for the “suck my balls” remark that
he made on Respondent’s disciplinary form given to him by
Outer.
Additionally, employee Stacy Paterno, who works in UGL
House 3 testified that employees use profanity in the workplace
towards other workers daily, including herself, and to her
knowledge no one has ever been disciplined for such conduct,
and that no supervisor ever said anything to her about using
profanity in the workplace.
In March of 2014, Paterno was called into a meeting with
Mickus, Byrd, and supervisor Heather Barsh and alternate su-
pervisor Chris Outer. The purpose of this meeting was to dis-
cuss complaints that a couple of staff members had made that
Paterno had made derogatory comments about Chris Outer.
During this meeting and in the course of defending herself
against the allegations made against her by other employees,
Paterno told the four supervisors that they “are playing into the
bullshit and that they’re a bunch of fucking idiots if they keep
listening to it.” Paterno was not disciplined for making these
comments to the four supervisors.
Paterno also was told in a conversation with supervisor
Heather Barsh, in discussing Paterno’s divorce, by Barsh that
she (Barsh) thought that Paterno’s husband “was a fucking
idiot.”
Additionally, according to Paterno, Byrd, in general conver-
sations with the staff would use profanity on a daily basis, us-
ing such words as “bullshit” and “fuck that.”
III. ANALYSIS AND CONCLUSIONS
A. The Termination of Kowinsky Allegedly in Violation of Sec-
tion 8(a)(3) of the Act
The complaint alleges that Respondent violated Section
8(a)(3) of the Act, by discharging Kowinsky on December 30,
2013 because he assisted the Union and engaged in concerted
activity, and to discourage employees from engaging in those
activities.
This complaint allegation, insofar as it alleges discrimination
based on union activity and to discourage union activity, must
be analyzed under Wright Line, 251 NLRB 1083 (1980). The
Board in Alternative Energy & Applications, Inc., 361 NLRB
No. 139 (2014), concisely summarized the mixed motive analy-
sis as follows:
In determining whether an employee’s discharge is unlawful,
the Board applies the mixed motive analysis set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). Under Wright Line, the General
Counsel must demonstrate by a preponderance of the evidence
that the employee’s protected conduct was a motivating factor
in an employer’s adverse action. The General Counsel satisfies
his initial burden by showing (1) the employee’s protected
activity; (2) the employer’s knowledge of that activity; and (3)
the employer’s animus. If the General Counsel meets his
initial burden, the burden shifts to the employer to prove that it
would have taken the adverse action even absent the employ-
ee’s protected activity. See, e.g., Mesker Door, 357 NLRB
591, 592 (2011); Donaldson Bros. Ready Mix, Inc., 341 NLRB
958, 961 (2004). The employer cannot meet its burden merely
by showing that it had a legitimate reason for its action;
rather, it must demonstrate that it would have taken the same
action in the absence of the protected conduct. Bruce Pack-
ing Co., 357 NLRB 1084, 1 0 8 6 – 1 0 8 7 (2011); Roure
Bertrand Dupont, Inc., 271 NLRB 443, 443 (1984). If the
employer’s proffered reasons are pretextual—
i. e., either false or not actually relied on—the employer fails
by definition to show that it would have taken the same ac-
tion for those reasons regardless of the protected conduct.
Metropolitan Transportation Services, 351 NLRB 657, 659
(2007); Golden State Foods Corp., 340 NLRB 382, 385
(2003); Limestone Apparel Corp., 255 NLRB 722, 722
(1981), enfd. 705 F.2d 799 (6th Cir. 1982).
In applying those principles, I conclude that General Coun-
sel has more than satisfied its burden of establishing that the
union activities of Kowinsky were a motivating factor in Re-
spondent’s decision to discharge him.
The evidence is overwhelming and undisputed that
Kowinsky was the primary organizer amongst Respondent’s
employees during the fall and winter of 2013, as well as in the
Union’s organizing campaign in 2012. The latter campaign
resulted in an election being scheduled, and canceled.
Kowinsky distributed authorization cards to employees of
Respondent in both campaigns, discussed the union and the
union cards with employees in various places, including at
Respondent’s premises, and inside the group homes.
In 2013, Kowinsky contacted the Union again, received from
the union authorization cards, distributed them to employees,
discussed the signing of cards with employees including at
Respondent’s houses, and returned signed cards to the Union, a
few days before he was notified of his termination.
While Respondent’s witnesses, Blough, Bayer, and O’Brien
all deny any knowledge of any union activity by Kowinsky in
2013, I find this testimony unpersuasive and not credible, and
conclude that the record amply supports the conclusion that I
make, that Respondent was aware of Kowinsky’s union activi-
ties in 2013.
While Respondent stipulated that it was aware of
Kowinsky’s role in supporting the union during the 2012 cam-
paign, and Blough so testified, both Bayer and O’Brien testified
that they were unaware of Kowinsky’s union support or role at
any time. Blough denied any knowledge of any union activity
at all in 2013, as well as any role by Kowinsky in supporting
the union in 2013. I also note that O’Brien admitted that she
had heard from someone in administration who she did not
recall, that Kowinsky might be interested in supporting a union
in 2013.
I find the testimony of Respondent’s witnesses to be unper-
suasive and not credible concerning knowledge of Kowinsky’s
union support, and the existence of any union activity in 2013.
Rather, I conclude that the evidence overwhelmingly supports
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
the conclusion that I make, that Respondent was aware of both
the resurgence of union activities in 2013 at Respondent’s UGL
facility , as well as Kowinsky’s role as principal union organiz-
er in the union’s 2013 organizational drive.
The evidence consists of a number of sources, starting with
Paterno’s conversation with Bayer and Mickus in October of
2013. Mickus questioned Paterno about whether union activity
had resumed and Paterno replied yes. Bayer then inquired
whether Kowinsky was behind the renewed campaign, and
Paterno again said yes.
Further in an administration meeting in the late fall of 2013,
Bayer informed the supervisor and administrators present, that
she believed that there were union meetings taking place on the
night shift, because there were cars coming into the driveway.
Furthermore the evidence established that Outer told assis-
tant program director Byrd in August of 2013 that people were
starting to talk about the union again, and that in October of
2013 supervisor Schackmann spoke to Outer about the union,
and that she (Outer) reported the conversation to Byrd. Finally,
shift supervisor Heather Barsh was told by Paterno in August of
2013 that union activity might be starting up again, and Barsh
responded that she had already heard this. Thus the above evi-
dence compellingly establishes that starting in the summer of
2013 all three shift supervisors (Barsh, Outer, and
Schackmann,) UGL program director Mickus, assistant pro-
gram director Byrd, and assistant state director Bayer had either
specific knowledge of Kowinsky’s union activities or general
knowledge of union activities in 2013. Additionally, as noted
above, O’Brien, Respondent’s Human Resources director, ad-
mitted that she was informed by someone in administration that
Kowinsky, sometime in 2013, “might be interested in support-
ing the union.”
The most compelling evidence of Respondent’s knowledge
of union activities comes from the comments made to Bayer by
Kowinsky, and other night-shift employees, during her meet-
ings with these employees on December 16, 2013. During
Bayer’s meeting with Kowinsky, wherein Kowinsky was com-
plaining to her about the night-shift scheduling decision and
that employees were unhappy about their treatment, Kowinsky
added that there had been talk about the Union again, and if
things keep up, it was going to go through this time. Bayer
then questioned Kowinsky about the union, and Kowinsky told
her that he was all for the union.
Further, during Bayer’s interview with employee Mike
McCarthy, Bayer was informed by McCarthy that Kowinsky
had been distributing union cards for 2 weeks, and that
Kowinsky, and Wosyluk were “all in on union.” Employee
Randy Saracco informed Bayer during their discussion, that
Kowinsky was “starting union nonsense again.”
The above evidence completely destroys Bayer’s credibility
as to her knowledge of union activities in general, and of
Kowinsky’s union activities in particular, in 2013. It further
undermines the credibility of Blough’s denials that he was un-
aware of any union activity or Kowinsky’s role in such activi-
ties in 2013.
Notably my findings above concerning the comments of em-
ployees to Bayer in December of 2013 was derived primarily
from Bayer’s own notes of her meetings with employees on
December 16, 2013. While Bayer testified that she had de-
stroyed these notes, since she had incorporated them “verba-
tim” into her email summarizing her discussions with employ-
ees sent to Blough on December 16, 2013, in fact copies of her
notes were made, and she identified them as an accurate state-
ment of what was said to her on that date by employees. Sig-
nificantly the references to Kowinsky’s union activities in 2013
made by employees Saracco and McCarthy to Bayer, somehow
were not included in the email that she sent to Blough summa-
rizing the discussions.
I can find no logical explanations for Bayer’s failure to in-
clude these comments to her in her email to Blough, other than
she was instructed by Blough to eliminate any reference to
Kowinsky’s union activities in the email summarizing the
meeting. Respondent’s conduct in regard to these statements
reflect poorly on Blough’s credibility on this issue, and I con-
clude that contrary to Blough’s testimony, that he was fully
aware of Kowinsky’s role in the resurgence of the union in
2013.
In this regard, Respondent argues that since Blough was the
decision maker in Respondent’s decision to discharge
Kowinsky, and there’s no evidence that he was aware of
Kowinsky’s union activity, or indeed any union activity in
2013, that the evidence of knowledge of Kowinsky’s 2013
union activities, by Bayer, Mickus, Byrd, and other supervisors
cannot be attributed to Respondent. I do not agree.
First of all the record establishes that as to Kowinsky’s dis-
charge, Blough was not the sole decision maker. Rather the
evidence disclosed, as even O’Brien testified, that a joint deci-
sion was made by Bayer, O’Brien and Blough to discharge
Kowinsky during their conference call, shortly after the De-
cember 16, 2013 meeting between Bayer, and Kowinsky.
Moreover, Bayer who was one of the decision makers, clearly
recommended that Respondent discharge Kowinsky. Thus her
knowledge of Kowinsky’s union activities in 2013 is properly
attributable to Respondent.
A supervisor’s knowledge of union or concerted activities is
imputed to the employer, unless credited testimony establishes
the contrary. Coastal Sunbelt Produce, 358 NLRB 1287 fn. 3
(2012); Gestamp South Carolina, 357 NLRB 1563, 1572
(2011); State Plaza Hotel, 347 NLRB 755, 756 (2006), Dobbs
International Services, 335 NLRB 972, 973 (2001); Harris
Corp., 269 NLRB 733, 734 (1984). (Supervisor who recom-
mended termination aware of concerted activity.)
GATX Logistics, 323 NLRB 328, 333 (1997) (Knowledge of
supervisor imputed to Respondent, although he didn’t make
decision to discharge discriminatee); United Cloth Co., 278
NLRB 583, 591 (1986) (Supervisor’s knowledge of union ac-
tivity imputed to Employer, when supervisor reported alleged
offense causing discharge to attention of decision makers.)
I also note that O’Brien, who jointly made the decision to
terminate Kowinsky, admitted that she had heard in 2013 that
Kowinsky might be interested in supporting the union, and that
Bayer, who clearly had knowledge of Kowinsky’s 2013 union
activities, recommended his discharge to Blough and O’Brien.
Springfield Air Center, 311 NLRB 1151 (1993). (Supervisor’s
knowledge of union activity of discriminatee attributed to Em-
ployer, since supervisor had direct input into the decision to
ADVOSERV OF NEW JERSEY, INC. 31
discharge him). Accord: Grand Rapids Die Casting v. NLRB,
831 F.2d 112, 117–118 (6th Cir. 1987).
Thus, in sum I find ample evidence of Respondent’s
knowledge of Kowinsky’s union activities in 2013, since
Bayer, one of the decision makers in Kowinsky’s discharge,
and who recommended it to the other decision makers Blough
and Bayer, knew of Kowinsky’s role in bringing the union back
in 2013, and that O’Brien, one of the other decision makers, at
least suspected Kowinsky’s 2013 union activities, since she was
informed by administration officials that Kowinsky might be
interested in forming a union in 2013. I further rely upon the
record evidence that the email that Bayer sent to Blough, alleg-
edly describing her conversations with employees, inexplicably
failed to include her discussions with employees about the re-
newed union activity and Kowinsky’s leading role in that activ-
ity, although these discussions were included in her contempo-
raneous notes that she admittedly took on 12/16/13. In such
circumstances I do not credit Blough’s denials that he was un-
aware of Kowinsky’s 2013 union activities and conclude that
Bayer informed him of her discussions with employees on
12/16, wherein Kowinsky’s 2013 union activities were dis-
cussed.
The timing of Kowinsky’s termination herein strongly sup-
ports the conclusion that it was motivated by his union activi-
ties and support. Kowinsky’s role in the renewed union cam-
paign in 2013 was confirmed during the December 16 meeting
with Bayer. Kowinsky raised the resurgence of union activity,
in connection with his concerted complaint about Respondent’s
rotation of employees amongst the homes, and announced to
Bayer that he was a union supporter. Further during Bayer’s
meetings with two other night-shift employees, these employ-
ees both mentioned Kowinsky’s role in bringing back the un-
ion. Thus Saracco told Bayer that Kowinsky, “was starting this
union nonsense again.”
Kowinsky was discharged 2 weeks after this meeting. This
timing, coming shortly after Kowinsky’s union activities were
highlighted to Respondent, represents significant evidence of
unlawful motivation. Such coincidence in time between Re-
spondent’s knowledge of the employee’s union activity, and his
discharge is strong evidence of an unlawful motive for his dis-
charge. Trader Horn of New Jersey, 316 NLRB 194, 198
(1995). Indeed, “timing alone may be sufficient to establish
that union animus was a motivating factor in a discharge deci-
sion.” Sawyer of NAPA, 300 NLRB 131, 150 (1990); NLRB v.
Rain-Ware, 732 F.2d 1349, 1354 (7th Cir. 1084), NLRB v.
Windsor Industries, 730 F.2d 860, 864 (2d Cir. 1984); Manor
Care Health Services—Easton, 356 NLRB 202, 204, 226
(2010) (Proximity in time between discriminatee’s union activi-
ty and discharge supports finding of unlawful motivation for
the termination); LaGloria Oil & Gas, 337 NLRB 1120, 1123,
1132 (2002). (Discharge shortly after Employer learned of em-
ployee’s union activities, strongly supports a finding that dis-
charge motivated by union animus.”)
Respondent has demonstrated animus towards union activi-
ties of its employee in general, and of Kowinsky in particular,
by the conduct of Mickus and Bayer. Thus in October of 2013,
Mickus asked employee Paterno if she knew about union activi-
ties starting up again and Paterno said yes. Bayer asked if she
would get involved and Paterno said no. Bayer then asked
Paterno whether Kowinsky was behind the union revival, and
Paterno replied yes. These comments by Mickus and Bayer
would constitute interrogations in violation of Section 8(a)(1)
of the Act, had they been so alleged, and had they occurred
within the 10(b) period, and a violation of the Act would have
been found based on this questioning by Mickus and Bayer.
While I cannot and do not find that Respondent violated the
Act by this conduct of Bayer and Mickus, I can and do consider
the evidence of this conduct as useful background evidence of
Respondent’s animus towards employees union support. Jack
in the Box Distribution Center, 334 NLRB 40, 52 (2003);
Storer Communications, 295 NLRB 72 fn. 3 (1989).
Similarly, Bayer unlawfully threatened to terminate employ-
ees who engaged in union activities, by announcing at a meet-
ing that she believed union meetings were taking place on the
night shift, and that if she found out who was responsible, she
would “fire our asses.” I would find this comment to be an
independent unlawful violation of Section 8(a)(1) of the Act, if
it had occurred within the 10(b)period and if it had been so
alleged in the complaint. However, although I cannot and do
not make such finding, I can and shall consider the comment as
evidence of Respondent’s animus towards the union activities
of its employees. It is notable that this comment was made by
Bayer, who was involved in the decision to terminate
Kowinksy within 2 months of Bayer’s comments, and within 2
weeks after Kowinsky’s role in the resurgence of the union
campaign was confirmed during her conversations with both
Kowinsky and two other employees on December 16, 2013.
Thus, I conclude that General Counsel has established a
strong and compelling prima facie case that Kowinsky’s union
activities was a motivating factor in Respondent’s decision to
discharge him on December 30, 2013.
As noted above, the burden then shifts to Respondent, to es-
tablish that it would have discharged Kowinsky, absent his
union activities. I conclude that Respondent has failed to meet
its burden of proof in this regard.
Respondent asserts that it terminated Kowinsky, because of
his unprofessional and profane statements made to his supervi-
sor, which caused Respondent to doubt Kowinsky’s ability to
interact positively with staff and residents. At trial Respond-
ent’s witnesses Blough and O’Brien testified and Respondent
asserts in its brief, that Kowinsky’s prior disciplinary records
also played a role in its decision to discharge him, specifically
referring to his suspension in June and August of 2013, and
asserting that his prior disciplinary record was discussed and
reviewed during their conference call wherein the decision to
discharge Kowinsky was made. 8
Significantly, the discharge letter sent to Kowinsky, inform-
ing him of the reasons for his discharge, made no reference to
his prior disciplinary record or actions. Additionally, in
Blough’s text message to Kowinsky announcing Respondent’s
decision he failed to mention Kowinsky’s prior disciplinary

8 Notably, Bayer, who had participated in the conference call and
recommended the discharge of Kowinsky, did not testify that
Kowinsky’s prior discipline was discussed in the conference call, or
that it played a role in her recommendation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
record as factors in Respondent’s decision to discharge him.
Further, in Blough’s telephone discussion with Kowinsky ex-
plaining Respondent’s decision, Blough also failed to do so. In
that discussion, Blough told Kowinsky that he was discharged
for unprofessional interactions with the assistant state director
(Bayer), and Respondent’s concerns that these interactions may
occur with individuals that Respondent serves.
Further, at the appeal hearing conducted on April 22, 2014,
by Respondent’s officials, no reference was made by any of
Respondent’s representatives present that Kowinsky’s past
disciplinary actions were a factor in Respondent’s decision to
terminate him, or that these disciplines were even considered in
its deliberations.
When Respondent denied Kowinsky’s appeal, in a letter of
May 1, 2014, from O’Brien, again no reference was made to
Kowinsky’s prior discipline as factors in its discharge decision.
The letter mentioned the documents that the appeal committee
reviewed in making its decision, and these documents did not
include his past disciplinary notices. Furthermore, in May
2014, O’Brien sent another letter to Kowinsky’s attorney, re-
sponding to the attorney’s claim in his disagreement with the
appeals committee’s decision. In that letter, O’Brien stated that
Kowinsky was terminated for his behavior on December 16,
2013, and the unprofessional language and direction thereof,
along with Advoserv’s result and concern regarding
Kowinsky’s ability to interact professionally with individuals
served.” Once again no reference was made to Kowinsky’s two
prior disciplines as playing any role whatsoever in Respond-
ent’s decision to discharge him.
Thus the Respondent’s failure to mention Kowinsky’s past
disciplinary record until the trial, represents shifting reasons for
its discharge decision, and strengthens the inference that the
true reason for the discharge was for union activity. Such an
inference is warranted here, and undermines Respondent’s
attempt to meet its Wright Line burden of proof. Marquez
Bros. Enterprises, 358 NLRB 509 (2012) (Employer failed to
mention alleged grounds for discharge in termination notice,
and raised another additional alleged reason for discharge for
this first time at the trial); City Stationery Inc., 342 NLRB 523,
524 (2003). (Employer’s reason for discharge offered at trial,
different from set forth in discharge letters); McClendon Elec-
trical Services, 340 NLRB 613, 614 (2003). (Employer added
additional reason for discharging discriminate at hearing, which
were not contained in disciplinary notice; Sound One, 317
NLRB 854, 858 (1995); Abbey’s Transportation Service v.
NLRB, 837 F.2d 580, 581 (2d Cir. 1988). (Changing nature of
employer’s justification for discharge, strengthening inference
of discrimination motivation, and undermines Employer’s
meeting its burden of proving that it would have terminated
discriminate absent his union activity.) Mt. Clemens General
Hospital, 344 NLRB 450 457–458 (2005) (Employer’s asser-
tion that discriminatee’s prior disciplinary actions were in part
responsible for its refusal to rehire him, not raised until trial)
Hahner, Foreman & Harness, Inc., 343 NLRB 1423, 1425
(2004) (“When an employer vacillates in offering a rational and
consistent account of its actions, an inference may be drawn
that the real reason for its conduct is not among those assert-
ed.”) Aluminum Technical Extrusions, 274 NLRB 1414, 1418
(1985). (Alleged reason for layoff not raised until trial.)
Respondent’s witnesses testified, and Respondent argues in
its brief, that Kowinsky was terminated for his unprofessional
profane and vitriolic statements concerning the competency of
his coworkers and supervisors. Respondent’s termination no-
tice characterized Kowinsky’s conduct as “behavior incon-
sistent with the Professional Nature of the Organization,” then
recounted his use of profanity to Bayer, in referring to Mickus,
Byrd and the clinicians, and concluded that as a “result of the
inappropriate language and tone in a professional setting,
Advoserv has significant concerns regarding your and interac-
tions with coworkers and individuals served. As such,
Advoserv can no longer maintain an employment relationship.”
However, the record contains numerous examples of other em-
ployees Respondent who uttered expletives at coworkers or
supervisors, or wrote profane comments on Respondent’s dis-
ciplinary forms, and were penalized far less severely than
Kowinsky, or not disciplined at all. Notably, Paterno who was
employed at the same UGL facility as Kowinsky, was called
into a meeting with supervisor Mickus, Byrd, Barsh and alter-
nate supervisor Chris Outer, to investigate Paterno’s allegedly
derogatory remarks about Chris Outer to other employees. In
connection with defending herself against the allegations,
Paterno told the four supervisors that they, “are playing into the
bullshit and that they’re a bunch of fucking idiots if they keep
listening to it.” These comments by Paterno, made directly to
and about four supervisors, are remarkably similarly to the
statements made by Kowinsky to Bayer, about the clinicians
Mickus and Bryd, for which he was terminated. However,
Paterno received no discipline whatsoever for this outburst and
profanity made directly to four supervisors.
Additionally, Byrd, Respondent’s supervisor, told employee
Joey Olcay to “shut the fuck up” several times, in front of the
entire shift, and no discipline was received by Byrd for this
conduct, although Mickus, Byrd’s supervisor, was present
when Byrd made these remarks.
Further, Terri Outer received a written warning on 10/14/13,
for calling a staff member a “fat, lazy, cunt.” This written
warning was issued by Mickus and Byrd, and was listed on the
Disciplinary Action form as Group one offenses, “obscene,
profane or abusive language” and (2) Behavior inconsistent
with the professional nature of the organization.”
Again, this represents strikingly similar conduct to that en-
gaged in by Kowinsky, and yet it resulted in only a written
warning to Outer, and not even a suspension, much less a dis-
charge.
Similarly, Terri Outer issued a disciplinary warning to em-
ployee Eric Doucette for leaving work without authorization.
When he received this disciplinary notice, Doucette, rather than
signing his name in the space on the form for his signature,
wrote the word “BULLSHIT” instead. After Outer, reported
Doucette’s conduct to Byrd, Outer pursuant to Byrd’s instruc-
tions, issued a written warning to Doucette, for a Group Two
offense, of “flagrant disrespect for the ethical and moral dimen-
sions of the organization while on company property or while
representing the organization.”
Terri Outer also disciplined employee Steven Matos for
kicking the door open. Matos wrote on the disciplinary report
ADVOSERV OF NEW JERSEY, INC. 33
given to him to sign by Outer, “suck my balls.” Although Out-
er notified her supervisor Art Mongelli of Matos’s conduct,
Matos received no disciplinary action for writing such remarks
on the form.
The review also reflects that employees Anginetta Carter,
Jennifer Gregory and Maribell Hernandez, received only writ-
ten warnings from their supervisors, for using profanity and/or
derogatory language towards other staff members and/or to-
wards supervisors. These written warnings were issued at other
facilities of Respondent in New Jersey, and not by any of the
supervisors from the UGL facility involved here.
I conclude that the above evidence demonstrates that Re-
spondent was most likely to issue a written warning to employ-
ees, or even not to discipline them at all, for the same type of
conduct for which it discharged Kowinsky. This evidence of
disparate treatment by Respondent of other employees supports
an inference that Kowinsky’s union activity was a motivating
factor in his discharge and undermines Respondent’s defense
that it would have discharged Kowinsky even in the absence of
his union concerted activities. Camaco Lorain Mfg. Plant, 356
NLRB 1182, 1185 (2011). (Other employee who are engaged
in similar conduct to discriminatee was not discharged, but
merely issued an incident report); Turtle Bay Resorts, 353
NLRB 1242, 1243 (2009). (Discipline of discriminatee more
severe than that imposed by Employer on at least five other
occasions who used bad language and/or engaged in harass-
ment); La Gloria Oil & Gas Co., 337 NLRB 1120, 1124
(2002). (Employer had practice of either not disciplining own-
ers for driving infractions, or issuing lesser discipline than dis-
charge.)
Respondent argues that none of the evidence of disparate
treatment that I have detailed above can be relied upon, inas-
much as Blough, O’Brien or Bayer, the decision makers in the
discharge decision, were not involved in any of these prior
disciplinary actions, or lack of disciplinary actions, or indeed
there is no evidence that any of them were aware of these inci-
dents.
I do not agree. I conclude that the above evidence does re-
flect how Respondent’s supervisors at its facilities, including
significantly some at the UGL facility here, where Kowinsky
was employed, treated conduct similar to that engaged in by
Kowinsky, that allegedly according to Respondent motivated
his discharge. Yet, Respondent did not terminate any of these
employees for engaging in such conduct, and issued them only
written warnings, and in some instances no discipline at all,
such as Paterno’s profanity-laced comments to and about her
supervisors.
I note that Mickus and Byrd, who were the supervisors who
Kowinsky attacked in his profane comments to Bayer, that
Respondent asserts caused his termination, were present when
Paterno made these profane comments to them, criticizing their
performance as supervisors, and yet they took no action to rec-
ommend and exact any discipline against Paterno, for engaging
in similar conduct.
Respondent argues that the only relevant comparator that
should be examined is the termination of Terrence Gunn, who
was discharged by Respondent for “unprofessional and vitriolic
comments regarding the competency of his co-workers.” Re-
spondent contends that Gunn engaged in a profanity laced act
ad hominen assault on the competency of his supervisor, “and
the appropriateness of the discipline that he was issued” and
was discharged for such conduct. While the record does reflect
that Gunn was discharged by Respondent, for using the word
“nigger” in speaking about it to his co-workers, it also reflects
that he also became verbally abusive to his supervisor stating,
“If she wants a war, she’s going to have one. I’m going to take
her down.” I find that this behavior of Gunn, including racially
inflammatory comments and threats to the supervisor, repre-
sents far more serious and egregious conduct, than that engaged
in by Kowinsky. Thus, Kowinsky made no threats to anyone,
did not make racially inflammatory statements, and merely
expressed some profanity in the course of describing his criti-
cism of Respondent’s supervisory and managerial staff.
Accordingly, Respondent has not established that it has taken
the same employment action against similarly situated employ-
ees, who were not engaging in union activities.
Furthermore, I also note that Respondent failed to follow its
disciplinary grid as expressed in its Employee Handbook, in
discharging Kowinsky. In that regard, the disciplinary grid lists
group one offenses that include “abusive profane and abusive
language,” and “behavior inconsistent with the nature of the
organization, e.g. misconduct to another.”9 Notably the disci-
plinary grid for each of these offense, calls for a written re-
minder for a 1st offense, written warning to suspension for a
second offense, and for a third offense suspension to termina-
tion. Thus, Respondent clearly did not comply with the terms
of its Manual, by discharging Kowinsky for a first offense in-
volving the conduct for which he was discharged. Respondent
contends, as it did in its response to Kowinsky’s internal ap-
peal, that the Employee Handbook is not a contract, and that it
is only a “guideline, that can be altered by the Employer with-
out notice, all, or part, or some can be applied in a situation at
the discretion of the employer.” In that regard, Respondent
noted that its Handbook on p.46 explicitly states that “all appli-
cations of the grid shall be at the sole discretion of AdvoServ.”
The manual goes on to explain that “In some instances
AdvoServ may chose to ignore the progressive nature of the
grid as a result of a breach of conduct as it relates to the safety
or abuse of persons and/or property, or the aggravating circum-
stances of several or more violations of various conduct stand-
ards. In every instance, AdvoServ will strive to be fair and
consistent.”
While this language does permit Respondent to ignore the
grid if it so chooses, and ignore the progressive nature of the
grid, in certain aggravating circumstances, it also states that
Respondent will be “fair and consistent.” Thus, while I agree
with Respondent that this “savings clause,” does establish that
the disciplinary grid reflected in the Manual is not a contract
and may be altered at Respondent’s discretion, it does not mean
that Respondent’s failure to apply it cannot be considered or
relied upon. Indeed, the detailed progression set forth in the
Manual must have some meaning, and cannot be eliminated

9 This latter statement was included in Kowinsky’s discharge notice,
and that along with references to his profanity during his comments to
Bayer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
from consideration, merely because Respondent reserved the
right not to apply it in “aggravating circumstances.” The fact is
Respondent’s manual states it will be “fair and consistent.”
Clearly, as I have detailed above they have not been fair or
consistent to Kowinsky, since he was treated much more harsh-
ly than Respondent treated other employees who engaged in
similar conduct to him. Thus I conclude that Respondent could
not and did not consider Kowinsky’s conduct to be “aggravat-
ing circumstances of several or more violations of various con-
duct standards,” and that it has violated its own progressive
disciplinary procedures by discharging Kowinsky. This further
undermines Respondent’s attempt to meet its burden of estab-
lishing that it would have discharged Kowinsky absent his un-
ion activity. Metro Transportation Services, 351 NLRB 557,
659 (2007); Publix Super Markets, 347 NLRB 1434, 1437–
1440 (2006).
Accordingly, I conclude that Respondent has failed to estab-
lish that it would have terminated Kowinsky, absent his union
activities, and that it has violated Section 8(a)(1) and (3) of the
Act.
B. The Termination of Kowinsky Allegedly for His Exercise of
Protected Concerted Activity in Violation of Section 8(A) (1) of
the Act
The complaint alleges, and the General Counsel contends,
that Respondent violated section 8(a) (1) of the Act by dis-
charging Kowinsky because of his exercise of protected con-
certed activity. More specifically, it is asserted that Kowinsky
was engaging in protected concerted activity by complaining
about Respondent’s decision to rotate staff during his meeting
with Bayer, on December 16, 2013, and that Respondent termi-
nated him because he engaged in such activities.
The analysis of this allegation does not involve an analysis
under Wright Line, supra, as did the above discussion, wherein
I concluded that Kowinsky was discharged because of his union
activity in violation of Section 8(a)(3) of the Act.
This alternative theory that Respondent violated the Act, by
discharging Kowinsky, because of his concerted activity at the
December 16 meeting with Bayer is independent and separate
from my finding of an 8(a)(3) violation for his union activity.
Indeed, even if I had found, as Respondent contends, that the
discharge did not violate Section 8(a)(3) of the Act, because it
was not established by General Counsel that it was motivated
by his union activity, or that even if it was found to have been
in part motivated by union activities of Kowinsky, that Re-
spondent would have terminated him absent such union activi-
ties, thereby meeting its Wright Line burden of proof, a viola-
tion of the Act based on Kowinsky’s protected concerted activi-
ty would still be a viable alternative possibility.
In that regard, the first issue to be determined is whether
Kowinsky was engaging in concerted activity during his meet-
ing with Bayer. I agree with General Counsel and contrary to
the position of Respondent, that Kowinsky was clearly engag-
ing in concerted activity, when he registered his complaints to
Bayer about Respondent’s decisions to rotate staff among the
houses at the UGL facility.
Kowinsky’s concerted activity began during the meeting ear-
lier in December of 2013, when Respondent announced the
decision to rotate employees to different houses at its facility.
This decision was announced by Bellizzi, the clinician who
recommended the action, and by Mickus and Byrd, those two
supervisors of Respondent at the UGL facility, who approved
the recommendation of Bellizzi to implement the rotation plan.
Kowinsky as well as several other night-shift employees, in-
cluding Wosyluk and Filipowicz who worked with Kowinsky
in UGL3, complained about this proposal at this meeting. In-
deed the record discloses that about half of the night-shift em-
ployees present spoke out in opposition to the move, while the
other half spoke in favor of it. There can be no doubt that
Kowinsky, as well as the other employees complaining about
the staff changes, were engaging in concerted activity at that
meeting. Worldmark by Wyndham, 356 NLRB 765 766–767
(2011) (Complaint made by employee at the meeting announc-
ing new rules affecting other employee constitute concerted
activity.); Chromally Gas Turbine Corp., 331 NLRB 858, 862
(2000) (comments by employee protesting changes in working
conditions announced at meetings by Employer falls within the
definition of concerted activity); Neff Perkins Co., 315 NLRB
1229 fn. 1 (1994) (comments by employees concerning work-
ing conditions raised at group meeting called by Employer
clearly comes within definition of concerted activity); Wal-
Mart Stores, Inc., 341 NLRB 296, 804 (2004) (comments by
employee including a common concern of employment of em-
ployees to supervisor, represents concerted activity); Whittaker
Corp., 289 NLRB 933, 934 (1988), (single employee’s com-
ments at employer meeting announcing suspension of wage
increases for employees protesting that action, amounted to
exercise of concerted activity).
Kowinsky’s concerted activities continued when he told
Outer in the presence of Wosyluk and Filipowicz that the night-
shift employees were requesting a meeting with higher man-
agement representatives to address concerns that employees
had about the proposed staffing changes. Outer relayed that
request to Byrd, and shortly thereafter, Byrd told Outer that
Bayer was coming to the UGL campus on December 16 to
discuss the night shift’s concerns about moving staff around the
houses.
On December 16, Kowinsky reported to the staff lounge, and
seeing Byrd, Mickus, and Bellizzi present along with Bayer,
asked to speak with Bayer privately. Bayer agreed and
Kowinsky informed Bayer that “We wanted to speak to Bayer
herself without anyone else there, because we didn’t like the
way things were running there.” Kowinsky added that “we
wanted to speak without Rashad or Kim or Alana there.” Bayer
replied fine, no problem, and then informed Mickus, Byrd and
Bellizzi that the staff would prefer to meet with Bayer, one on
one, with no one else present, and told them to wait there in the
lounge in case there are any questions.
Kowinsky was the first employee with whom Bayer met on
December 16. After telling Bayer that there was nothing wrong
with his supervisor (Outer), Kowinsky complained to Bayer
that Respondent was pinpointing the night shift by making
adjustments on the night shift by switching houses amongst the
employees. Bayer explained to Kowinsky that there had been
accusations made by a resident against several of the night-shift
employees, and that Respondent was doing the best for the
ADVOSERV OF NEW JERSEY, INC. 35
residents as well as the workers. Kowinsky responded that
Filipowicz and Wosyluk were the most senior employees, and
that they should not be “moved out of our house.” Bayer re-
plied that Respondent was doing what was best for both the
employees and residents.
Kowinsky then asserted that Respondent was putting young
immature employees into homes with residents with violent
histories, which could cause someone to get hurt. Bayer then
urged Kowinsky to take the alternative supervisor position,
(using an obscenity in her remarks).
Kowinsky then commented that these changes were coming
out of nowhere, and the night-shift employees didn’t under-
stand why Respondent was picking on their shift. Kowinsky
added, “if it wasn’t broke don’t fix it.”
There can be no doubt that Kowinsky was continuing his ex-
ercise of concerted activity at this meeting with Bayer, and that
Kowinsky’s conduct on December 16, 2013, was a logical out-
growth of a continuation of his concerted activity, from the
earlier meeting in December when he and his fellow employees
concertedly complained to management officials about Re-
spondent’s decision to rotate staff on the night shift, contrary to
past practice. Wal-Mart Stores supra; Salisbury Hotel, 283
NLRB 685, 687 (Individual employees call to Department of
Labor grew out of employees’ concerted protest of Employer’s
change in lunch hour policy, and is therefore a continuation of
that concerted activity) Every Woman’s Place, 282 NLRB 413
(1986) (Employee’s telephone call to Department of Labor,
related to and was a “logical outgrowth” of a prior complaint
made by three employees to Employer about overtime compen-
sation for holidays.)
Kowinsky clearly demonstrated the concerted nature of his
complaints about the staffing change, by his telling Bayer that
“we” wanted to speak to Bayer herself, without Byrd, Mickus
or Bellizzi present, by complaining to Bayer that Respondent
was pinpointing the night shift by its adjustments on switching
houses, and commenting that he, Filipowicz and Wosyluk were
the most senior employees on the shift, and that they should not
be moved out of “our” homes, and stating to Bayer that the
night-shift employees didn’t understand why Respondent was
picking on their shift. It is clear based on the evidence that
Kowinsky was speaking on behalf of himself as well as other
night-shift employees in making his complaints to Bayer, and
that Bayer, and Respondent was aware that he was engaging in
concerted activity by such conduct. Chromalloy Gas Turbine,
supra, 331 NLRB at 863 (employees complaint at meeting
about employer’s changes in breaks and scheduling); Dickens,
Inc., 352 NLRB 667 fn. 3 (2008); CKS Tool & Engineering,
332 NLRB 1583–1585 (2000)) (Employee complaining about
employer demand for increased productivity used the term,
“we”.) Grimmway Farms, 315 NLRB 1225, 1274–1280 (1995)
(employee complained about how employer treated fellow em-
ployees and used the term “we wanted to know”); Colders Fur-
niture, 292 NLRB 941, 942–945 (1989) (Salesman in com-
plaining about change in start time used “we” several times);
Whittaker Corp., supra, 289 NLRB at 434 (Employee phrased
his remarks at meeting complaining about Employer’s wage
increase suspension, in terms of “us” and “we”).
Respondent’s contention that Kowinsky’s comments were
not concerted, but merely personal griping and speaking only
for himself, in his complaints about the Employer’s actions,
Tampa Tribune, 346 NLRB 369, 370–372 (2006), has no merit.
The employee in Tampa Tribune, supra, made a purely personal
complaint about his treatment by his employer, no other em-
ployee shared his concerns nor made any similar complaints to
the Employer about the issues raised by the employee, and the
employee therein didn’t use the term we or us, in making his
complaints.
Here, as detailed above, Kowinsky’s complaints about Re-
spondent’s staffing changes on December 16 had been ex-
pressed previously at prior meetings when the changes were
announced, and other similarly opposed employees expressed
their disagreement at the same time. Kowinsky then requested
and was granted a meeting with Respondent’s higher officials
to protest these changes, which resulted in the meeting of De-
cember 16 with Bayer wherein he continued to protest Re-
spondent’s rotation of staff on the night shift, using the term
“we” and referring to other members of the night shift, particu-
larly the employees at his building, as being adversely affected
by Respondent’s decision.
Accordingly, I conclude that Kowinsky was engaged in Sec-
tion 7 activity during the December 16 meeting, wherein he
complained about Respondent’s staffing changes. Based on
Respondent’s own assertion as to its motivation for Kowinsky’s
discharge, he was terminated for engaging in inappropriate and
profane conduct during his discussions with Bayer, it is clear
that he was discharged for conduct that is part of res gestae of
protected concerted activities. In such cases Wright Line is not
applicable to the analysis. The appropriate inquiry is whether
Kowinsky’s use of profanity and disrespectful language in the
exchange with Bayer during their discussion was sufficiently
egregious to remove him from the protection of the Act. Bever-
ly Health & Rehabilitation Services, 346 NLRB 1319, 1322–
1323 (2005) Stanford Hotel, 344 NLRB 558 (2005); Circle K
Corp., 305 NLRB 932, 933 (1971).
Thus, the Board has held that there are limits as to how far
an employee can go in the course of exercising their concerted
activity in order to retain the Act’s protection. An employee’s
right to engage in concerted activity may permit some leeway
for impulsive behavior which must be balanced against the
employer’s right to maintain order and respect. NLRB v. Thor
Power Tool, 351 F.2d 584, 587 (7th Cir 1965); Cibao Meat
Products, 338 NLRB 934, 935 (2003). Thus, when an employ-
ee is discharged for conduct that is part of the res gestae of
protected concerted activities, the relevant inquiry is whether
the conduct is so egregious as to take it outside the protection
of the Act or of such character as to render the employee unfit
for further service. Consumer Power Co., 282 NLRB 130, 132
(1986); Dickens Ins., supra 352 NLRB at 672; Chromalloy Gas
Turbine, 331 at 863.
In assessing whether or not an employee who is otherwise
engaged in protected activity loses the protection of the Act by
his conduct during a conversation with a management repre-
sentative, the appropriate analysis is set forth in Atlantic Steel
Co., 245 NLRB 814 (1979), Pier Sixty LLC, 362 NLRB No. 59
slip op. at 2 (2013), Triple Play Sports Bar, 361 NLRB No. 31,
slip op. at 3 (2014); Beverly Health & Rehabilitation, supra,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD36
346 NLRB at 132; Alcoa Inc., supra, 352 NLRB at 1226
(2008). In making this determination the Board balances four
factors: (1) the place of discussion; (2) the subject matter of the
discussion; (3) the nature of the employee’s outburst; and (4)
whether the outburst was provoked by an employer’s unfair
labor practice; Also see Overnite Transportation Co., 343
NLRB 1431, 1437 (2004).
In assessing factor (1) place of discussion, it is significant
that the discussion with Bayer occurred in a closed meeting
with her, with no other employees or even any other supervi-
sors present. In such circumstances, Kowinsky’s remarks to
Bayer, although they included profanity, and denigration of
supervisors and clinicians, were not heard by any other em-
ployees, are not disruptive of workplace discipline, and do not
undermine management’s authority, and did not disrupt the
work process. Health Bridge Management, 362 NLRB No. 33,
slip op. at 1 (2015); Plaza Auto Center v. NLRB, 664 F.3d 289,
292 (9th Cir 2011); Stanford Hotel, supra 349 NLRB 58 (2005)
(outburst occurred away from normal working area in a closed
door meeting with no employees present, did not impair Em-
ployer’s ability to maintain discipline in the workplace, and
location weighs in favor of protection.) Alcoa Inc., supra, 352
NLRB 1222, 1226 (conduct of employee didn’t take place in a
work area and was not disruptive of work process), Datwyler
Rubber & Plastic, 350 NLRB 664, 670 (2007) (outburst oc-
curred during an employee meeting, where employees were
free to raise workplace issues and in a location that might not
disrupt employee’s work process.) Noble Metal Processing,
346 NLRB 795 796 (2000) (outburst at meeting not disruptive
of the work process, and meeting where employees could be
expected to express views concerning changes announced by
management.)
Accordingly, based on the above analysis and precedent, I
conclude that the place of discussion here weighs heavily in
favor of protection of the Act. Plaza Auto Center, supra, 360
NLRB No. 117, slip op. at 7 (2014); Success Village Apart-
ments, Inc., 347 NLRB 1065, 1069 (2006) (Discussion and use
of crude language took place in office with “supervisors” NLRB
v Starbucks Corp., 679 F.3d 70, 74 (2d Cir. 2004) (“In balanc-
ing the Atlantic Steel factors, the Board has also “regularly
observed a distinction between outbreak under circumstances
where little if any risk that other employees heard the obsceni-
ties and those where the risk was high.”) Kowinsky spoke pri-
vately with Bayer in a conference room away from other em-
ployees, and far removed from UGL residents. No one else
was present for this conversation and no one else overheard
Kowinsky’s remarks. Therefore, this private closed door con-
versation strongly favors Kowinsky retaining the Act’s protec-
tion.
The second factor in the Atlantic Steel analysis, subject mat-
ter of the discussion, also strongly militates in favor of
Kowinsky retaining the Act’s protection. As detailed above,
Kowinsky and other night-shift employees engaged in protected
concerted activities, when they complained about the proposed
shift changes, at the prior night-shift meeting. These com-
plaints were then elevated to Bayer’s level at the request of
Kowinsky and his coworkers. Therefore Kowinsky’s continued
discussion with Bayer during his Dec. 16 meeting with her
about those complaints directly related to the prior concerted
activities of Kowinsky and was a legal outgrowth of such con-
duct. Thus, Kowinsky’s comments in discussing reasons for
objecting to rotation of personnel through different houses that
the clinicians (who recommended the plan) were “jackasses”,
and that Mickus and Byer (the supervisors who agreed to fol-
low the recommendation and implemented it), didn’t know
“what the fuck” they were doing, were related to that concerted
complaint, and in furtherance of such activity. Accordingly, I
conclude that since the substance of Kowinsky’s December 16,
2013 conversation directly related to Kowinsky’s protected,
concerted conduct, the facts also strongly militate in favor of
Kowinsky retaining the Act’s protection. Stanford Hotel, su-
pra, 344 NLRB at 557 (conduct of employee while engaged in
assertion of a fundamental right under the Act, weighs strongly
in favor of finding that employee’s rights are protected, Alcoa
Inc., supra 352 NLRB at 1226 (outburst of employee clearly
involved terms and conditions of employment of employees,
and weighs in favor of protection). Datwyler Rubber & Plas-
tics, supra, 350 NLRB at 630 (outburst of employee occurred
during discussion of employee complaints about terms and
conditions of employment, and weighs in favor of protection).
Turning to factor 3, in Atlantic Steel, the nature of the out-
burst, I do not find that it favors the loss of protection or that
this factor warrants the conclusion that Kowinsky forfeited his
Section 7 protections. Kowinsky’s conduct consisted of a brief
verbal outburst of profane language, unaccompanied by insub-
ordination, physical contact or threat of physical harm. Beverly
Health & Rehabilitation Services, supra, 346 NLRB 1322–
1323, (Employee told employee in connection with grievance
possessing to “mind her fucking business,” and comment re-
ported to supervisor); Fresnius USA Mfg., 358 NLRB 1261,
1265–1266 (2012) (Comment by employee “dear pussies” in
newsletter to employees, although vulgar and can be construed
as demeaning to women, does not cause protection to be lost);
Alcoa Inc., supra, 352 NLRB at 1222, 1226, 1231–1233 (call-
ing supervisor an “egotistical fucker”); Success Village Apart-
ments, 347 NLRB 1065, 1067 (2006) (Telling supervisor “what
the hell is this crap”); Corrections Corp of America, 340 NLRB
632, 635–636 (2006) (statement by employee, “this is bull-
shit”); Union Carbide Co., 331 NLRB 356 fn. 1, 360 (2000)
(calling supervisor “fucking liar”); Kiewit Power Corp., 355
NLRB 708, 710 (2012) (Employees telling supervisors that the
situation could “get ugly,” and that supervisor “better bring his
boxing gloves.”); CKS Tool & Engineering, 332 NLRB 1578,
1582, 1585–1586 (2000). (employee used f—word several
times in his discussion with management); Burle Industries,
300 NLRB 498, 502, 504 (calling supervisor f—ing asshole);
Postal Service, 250 NLRB 4 fn. 1, 6 (1980) (calling supervisor
a “stupid ass); Thor Power Tool, 148 NLRB 1304, 1308 (1964),
enfd. 351 F.2d 584 (7th Cir. 1965) (Referring to plant superin-
tendent as “the horse’s ass”); Traverse City Osteopathic Hospi-
tal, 260 NLRB 1061 (1982) (Employee referring to a co-worker
as a “brown nosing suck ass.”); Leased Inc., 289 NLRB 547
(1988) (statement to supervisors “if you’re taking my truck, I
am kicking your ass right now.”); NLRB v. Cement Transporta-
tion Co., 490 F.2d 1023 (6th Cir. 1974) (referring to company
president as a “son of a bitch.” Accord: Severance Tool
ADVOSERV OF NEW JERSEY, INC. 37
Foodstores, 301 NLRB 1166, 1178 (calling company president
a “son of a bitch”); Postal Service, 241 NLRB 389, 390 (1979)
(calling acting supervisor an “asshole”).
I also note the Board’s decision in Pier Sixty LLC , supra 362
NLRB No. 59 (2015). Here the board considered Facebook
comments made by an employee about a supervisor. The
comments were, “Bob is such nasty mothe fucker don’t know
how to talk to people. !!!! fuck his mother and his entire fami-
ly. What a LOSER!!! Vote for the Union.”
There the Board didn’t apply Atlantic Steel to determine
whether the conduct of the employer was so egregious to ex-
ceed the Act’s protections, but rather applied a totality of the
circumstances test. Slip op. at 2–4. However, in considering
the relevant circumstances, section six and seven were the na-
ture of the outburst and seven is whether the Employer consid-
ered the language used by the employee to be offensive. The
Board concluded that the “overwhelming evidence establishes
that the Respondent tolerated the wide spread use of profanity
in the workplace, including the word “fuck” and “motherfuck-
er.” Considered in this setting, Perez’ use of the words in his
Facebook post would not cause him to lose the protection of the
Act.” The Board cited Traverse City Osteopathic Hospital,
supra, 260 NLRB at 1061 (Employees use of profanity calling
fellow employees a “brown nosing suck ass,” while engaging in
protected activity, did not cause her to lose the Act’s protection
where the use of profanity at the Respondent’s facility was not
uncommon and had been tolerated in the past), and Coors Con-
tainer Co., 238 NLRB 1312, 1320, 1438 (1978), enfd. 628 F.2d
1283, 1288 (1st Cir. 1980), (Employee’s engaged in protected
activity did not lose the Act’s protection, by calling the Re-
spondent’s guards “mother fuckers,” where the phrase was
commonly used at its facility, one of the guards was not dis-
turbed by the employees using the most to degrade him and
there was no evidence that any employee had been discharged
solely for using obscenities.)
See also United Enviro Systems, 301 NLRB 942, 443–444
(1991). (Profanity used by salesmen while engaging in con-
certed complaints about working conditions such as “the god
dam paper work is a pain in the ass. I don’t have fucking time
for it,” insufficient to cause them to lose the Act’s protection,
since profanity was used at other times at sales meetings and
routinely tolerated by employees.)
Similarly here, as I have detailed above in connection with
my Wright Line analysis concerning the 8(a)(3) allegation the
evidence reflects that Respondent tolerated similar profanities
by employees, or supervisors to employees, without any disci-
pline at all, much less discharge, or at best only a written warn-
ing. For example, Palermo referred to supervisors Byrd,
Mictius and Barsh as “a bunch of fucking idiots”, and told them
that they were playing into the bullshit.” Yet Palerno served no
discipline whatsoever for her outburst made directly to three
supervisors. Additionally, supervisor Byrd told employee
Olcay to “shut the fuck up,” in the presence of the entire shift,
including Byrd’s supervisor Mickus. Byrd served no discipline
for this incident.
Further, Outer referred to a staff member as a “fat, lazy
cunt,” and received only a written warning for that conduct.
Similarly, night-shift employees Doucette and Matos only re-
ceived written warnings for writing “bullshit” and “suck my
balls” respectively, on Respondent’s disciplinary forms with
which they did not agree.
Finally, I note that Bayer herself used profanity towards
Kowinsky, in the course of their discussions, when he com-
plained about the shift rotation system, and stated that Re-
spondent was putting young immature employees into business
with some residents with histories of violence which would
cause someone to get hurt. Bayer replied, “Todd, why don’t
you take the fucking alternate position for me. Please we need
somebody mature like you and you can help these kids along
and straighten them out.”
Thus the above evidence demonstrates that Respondent did
not consider Kowinsky’s conduct to be so egregious that it
renders him unfit for service, and further supports my conclu-
sion that factor three under Atlantic Steel does not weigh in
favor of Kowinsky losing the Act’s protection. Fresnius USA,
supra, 358 NLRB at 1268; Corrections Corp. of America, 347
NLRB 632, 636 (2006) (finding no loss of protection based on
employee’s profanity where similar language was common
among supervisors and employees like).
Turning to the fourth factor in Atlantic Steel, I do not find
that Kowinsky’s outburst was provoked by any unlawful or
inappropriate conduct by Respondent.
In this regard General Counsel contends that this factor
should be regarded as neutral here. It is argued that the record
establishes that Kowinsky commented to Bayer at the meeting
that the night shift believed that it was being unfairly targeted.
General Counsel further asserts that “these comments originat-
ed from Bayer’s remarks at the administration meeting that she
believed that there was union organizing taking place on the
night shift and that if she found out who was involved, she
would fire them. Outer passed their remarks on to Kowinsky
and his night-shift colleagues and even though not specifically
pled in the complaint, Bayer’s remarks clearly were unlawful
threats that provide necessary content to Kowinsky’s protected
asserted complaints.” I cannot agree with General Counsel.
While I have found above, that Bayer’s comments at the ad-
ministrator meeting did constitute evidence of animus towards
union activity, although not alleged as an unlawful threat, under
section 10(b) of the Act, I do not and cannot find any connec-
tion between that comment, and Kowinsky’s outburst. I cannot
conclude that Kowinsky’s comments to Bayer on December 16
were provoked in any way by Bayer’s threats made at the prior
meeting, about firing for union activity. Rather, the evidence
establishes that Kowinsky’s comments about the supervisors
and the clinicians were provoked, if anything, by Bayer’s fail-
ure to agree with him as to his assessment of the capabilities of
Respondent’s managers and clinicians and his criticism of Re-
spondent’s staffing decision. Therefore, I conclude that the
factor, of provocation does not favor protection.
In sum I conclude that the factors of place of discussion and
subject matter of the discussion strongly favor continued pro-
tection of the Act. The third factor nature of the outburst, also
favors protection of Kowinsky’s conduct. In such circumstanc-
es, only the factor of provocation does not favor protection, and
in balancing the Atlantic Steel factor, Kowinsky has not lost the
protection of the Act by his comments at the December 16
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD38
meeting to Bayer. Kiewit Power Constructors, supra, 355
NLRB 708, 710, 711; Alcoa Inc., supra, 352 NLRB at 1225;
Success Village Apartments, supra 347 NLRB at 1069,
Healthbridge Management, supra at 2.
Although I have found above that Kowinsky’s comments did
not weigh against his retaining the Act’s protection, even if I
concluded that this factor did not favor Kowinsky retaining the
Act’s protection, under Atlantic Steel principles, it does not
follow that this finding would be sufficient to conclude that he
lost the Act’s protection. In Media General Operations Inc.
d/b/a Tampa Tribune, 351 NLRB 1324 (2007), enf. denied 560
F.3d 181 (4th Cir. 2009), the Board considered a comment by
an employee to two supervisors, made in connection with con-
certed activity, that the employer’s vice president was a “stupid
fucking moron.” The judge had found that this statement was
sufficient to cause the employee to forfeit the protection of the
Act, since it was profane, offensive and personally degrading to
the Vice-President, and was not provoked by any unfair labor
practices of the Employer. The Board disagreed, and conclud-
ed that though it agreed with the Judge that the employees’
reference to the vice-president as a “stupid fucking moron” was
clearly intemperate, that the nature of the remark weighs only
moderately against his retaining the Act or protection.
Thus the Board found it significant that although his remark
was about the vice president, it was not directed at the vice
president to his face, and there were no other confrontational
aspects to it, such as physical contacts or threats. Further, at no
point prior to his discharge was the employee informed that his
remarks deserved any sort of official response or discipline, let
alone discharge. Finally, the Board observed that although the
employee’s remark was disrespectful, it was not insubordinate
in regard to production or work assignments, nor did it serve to
directly challenge the vice president’s managerial authority.
Thus the Board found that the employee’s conduct did not war-
rant the loss of the Act’s protection, even though the outburst
moderately favored the loss of protection and was not provoked
by any unfair labor practices. Tampa Tribune, supra at 1326–
1327, citing Success Village, supra 347 NLRB 1969 (finding
employee’s outburst protected where location and subject mat-
ter weighed in favor of protection, while nature of outburst and
lack of provocation weighed against protection).
The facts here are quite similar to Tampa Tribune. Thus
even if Kowinsky’s references to supervisors Mickus and Byrd
as not knowing “what the fuck” they were doing, and to the
clinicians as “jackasses,” is considered intemperate and degrad-
ing, they were not made directly to these supervisors or the
clinicians. Kowinsky’s statements were spontaneous, not re-
peated and were not confrontational and were without any
physical contact or threats. At no point, before his discharge
was Kowinsky informed that he deserved any sort of official
response, let alone termination. Indeed to the contrary, Bayer
during the meeting told Kowinsky that he should “take the
fucking” alternate supervisor position, which demonstrated that
Respondent did not view his comments as so egregious as to
warrant him unfit for service. Further, although Kowinsky’s
remarks were disrespectful, it was not insubordinate, in regards
to production or work assignments, nor did they serve to direct-
ly challenge the Respondent’s managerial authority. Therefore,
it is appropriate to conclude and I do, that Kowinsky’s conduct
did not lose the protection of the Act and is distinguishable
from cases where the Board has found that protection of the Act
was lost. Compare e.g. Waste Management of Arizona, 345
NLRB 1337 (2005), (employee cursed repeatedly and loudly
before witnesses, refused supervisor’s repeated requests to
move discussion into office, made threats to supervisor and was
terminated in part for refusal to follow orders); Daimler Chrys-
ler, 349 NLRB 1329 (2005), (Employee cursed repeatedly in
front of many other employees, called supervisor an “asshole”
to his face and physically approached supervisors in an intimi-
dating manner); Trus Joist MacMillan, 341 NLRB 369 (2004).
(Employee called supervisor names, including lying “bastard,”
and “prostitute” in front of the other employees, repeated his
comments made directly to supervisors to face, after being
warned to stop, made sexually insulting gestures (grabbing his
crotch), and was terminated for insubordination.); Aluminum
Co. of America, 338 NLRB 20 (2007) (Employee’s cursing
directly at supervisor was heard by other employees and oc-
curred in the course of employee’s refusal to perform his as-
signment; also, employee refused to leave supervisor’s office
when he was told to).
In Plaza Auto Center, supra, 362 NLRB 117, the Board con-
sidered conduct by an employee wherein he was engaging in
concerted activity by protesting an employer’s decision con-
cerning wage draw and commissions, at a meeting in a manag-
er’s office. During the course of that discussion, the employer
addressed the employer’s owner Tony Plaza and called him a
“fucking mother fucker, fucking” “fucking crook,” and an
“asshole,” and said that he was stupid, nobody liked him, and
everyone talked about him behind his back. The Board had
initially concluded in Plaza Auto Center, 355 NLRB 493
(2010), that these comments did not favor the employee’s loss
of protection of the Act. Above at 500, 501. However, the
Ninth Circuit Court of Appeals, reversed this finding in Plaza
Auto Center, 360 NLRB 117 (2014), 664 F.3d 286 (9th Cir.
2011), and remanded the case to the Board instructing it to
rebalance the decision under Atlantic Steel’s principles con-
sistent with the Court’s analysis.
The Board did so, and concluded that the Court’s finding that
the employee’s conduct consisted of obscene and degrading
language, and was also insubordinate, was the law of the case,
and would be followed by the Board. The Board further ob-
served that upon further consideration “we concur with the
Court’s findings, that the nature of the outburst factor weights
against protection.” Above at 496. The Board emphasized in
making that conclusion that the employee’s obscene and de-
grading remarks “must be give given considerable weight, be-
cause Aguirre targeted Plaza personally and uttered obscene
and insulting remarks during a face to face meeting with Plaza,
and used profanity repeatedly.” Id. at 496. Moreover, the
Board also noted that there is evidence that the employer did
not tolerate employees cursing at management.
Here in contrast to Plaza Auto, supra Kowinsky’s comments
to Bayer about the clinicians and the supervisors were not made
face to face, to either the clinicians or to the supervisors criti-
cized by Kowinsky, and the evidence does reveal instances
where Respondent tolerated employees cursing at management.
ADVOSERV OF NEW JERSEY, INC. 39
For example, Paterno’s profanity directed towards Mickus and
Byrd, resulting in no discipline at all, and the conduct of Matos
and Doucette who received only written warnings for writing
“suck by balls,” and “bullshit,” on Respondent’s disciplinary
forms with which they did not agree. Further Bayer herself
used profanity in her discussion with Kowinsky, and supervisor
Byrd used profanity in his discussions with other employees.
The Board’s decision Plaza Auto Center supra, 350 NLRB
25, does not support a finding that Kowinsky’s conduct favored
loss of protection of the Act, in view of the above distinguisha-
ble factors.
Nonetheless, the Board in Plaza Auto Center, ultimately
concluded although the employee’s conduct weighs against loss
of protection, that finding does not establish by itself a loss of
protection since the other Atlantic Steel factors, favor protec-
tion. Id. at 501.
While I have not found that Kowinsky’s comments were
provoked by any unlawful orimproper conduct of Respondent,
his comments do not establish by themselves a loss of the Act’s
protection, even where there is no evidence of provocation.
Tampa Tribune, supra; Success Village, supra.
Accordingly, based on the foregoing analysis and precedent,
I conclude that Kowinsky’s conduct on December 16, 2013 did
not cause him to lose the protection of the Act, and that his
discharge of December 30, 2013 was violative of Section
8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. By discharging Todd Kowinsky because of his activities
on behalf of and support for 1199 SEIU United Healthcare
Workers East, New Jersey Region, (The Union), Respondent
has violated Section 8(a)(3) of the Act.
2. By discharging Todd Kowinsky because he engaged in
protected concerted activity, Respondent has violated Section
8(a)(1) of the Act.
3. The aforesaid violations of the Act affect commerce with-
in the meaning of Section 2(6) and (7) of the Act.
ORDER
The Respondent, Advoserv of New Jersey, Inc. of Hewitt,
New Jersey, its officers, agents, and representatives shall
1. Cease and Desist from
(a) Discharging or otherwise discriminating against its em-
ployees because of their activities on behalf of or support for
1199 SEIU United Healthcare Workers East, New Jersey Re-
gion, (The Union).
(b) Discharging or otherwise discriminating against its em-
ployees because they engaged in protected concerted activities.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Todd
Kowinsky, full reinstatement to his former job, or if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Todd Kowinsky whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section of
this decision.
(c) Remove from its files any reference to the unlawful ac-
tions against Todd Kowinsky within 3 days thereafter, notify
him in writing, that this has been done and that the discharge
will not be used against him in any way. (d) Reimburse
Kowinsky an amount equal to the difference in taxes owned
upon receipt of a lump sum backpay payment and taxes that
would have been owed had there been no discrimination against
him.
(e) Submit the appropriate documentation to the Social Se-
curity Administration so that when backpay is paid to
Kowinsky it will be allocated to the appropriate periods.
(f) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful action against Kowinsky
and within 3 days thereafter, notify him in writing, that this has
been done and that the discharge will not be used against him in
anyway.
(g) Preserve and, within 14 days of request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(h) Within 14 days after service by the Region, post at its fa-
cility, copies of the attached notices marked “Appendix.”9
Copies of the notices, on forms provided by the Regional Di-
rector for Region 22, after being signed by the Employer’s
authorized representative, shall be posted by the Employer’s
authorized representative, shall be posted by the Employer and
maintained for 60 consecutive days in conspicuous places in-
cluding 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 Employer customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Employer
to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Employer has gone out of business or
closed the facilities involved in these proceedings, the Employ-
er shall duplicate and mail, at their own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Employer at any time since December 30, 2013.
Dated at Washington, D.C. September 18, 2015
APPENDIX
Notice To Employees
Posted By Order Of The

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD40
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.
WE WILL NOT discharge or otherwise discriminate against
employees because of their activities on behalf of or support for
1199 SEIU Healthcare Workers East, New Jersey Region (The
Union).
WE WILL NOT discharge or discriminate against employees
because they engage in protected concerted activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the rights guaranteed them by
Section 7 of the Act.
WE WILL offer Todd Kowinsky full reinstatement to his for-
mer job, or if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed and make him
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him.
WE WILL remove from our files any reference to the unlawful
actions against Todd Kowinsky and within 3 days thereafter,
notify him in writing, that this has been done and that the dis-
charge will not be used against him in any way.
ADVOSERV OF NEW JERSEY INC.