Senior Philanthropy of Cheshire, LLC d/b/a Cheshire Regional Rehab Center

National Labor Relations Board - Administrative Judge Opinions

Mar 9, 2018

01-CA-184184 (N.L.R.B. Mar. 9, 2018)

JD–17–18
Cheshire, Conn
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SENIOR PHILANTHROPY OF
CHESHIRE, LLC D/B/A CHESHIRE
REGIONAL REHAB CENTER
and Case No. 01-CA-184184
MARVIN MOORE, AN INDIVIDUAL
Charlotte S. Davis, Esq., and
Alan L. Merriman, Esq.,
for the General Counsel.
Jason Stanevich, Esq.,
(Littler Mendelson, P.C.)
New Haven, Connecticut,
for the Respondent.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, U.S. Administrative Law Judge. I heard this case in Hartford,
Connecticut, on November 29 and 30, and December 1, 2017. Marvin Moore, an individual,
filed the initial charge on September 14, 2016, asserting that he was terminated in June 2016
because he participated in National Labor Relations Board (Board) proceedings. Moore
submitted three amended charges to add assertions that he was discriminated in other respects
because of his prior participation in Board proceedings: on November 7, 2016, he added an
allegation regarding the final warning he received on May 12, 2016; on December 16, 2016, he
added an allegation that the Respondent had regularly altered his work schedule since April
2016; and on May 31, 2017, he added an allegation regarding the performance improvement
plan that the Respondent issued to him at the same time as the May 12 final warning. The
General Counsel issued the Complaint on July 28, 2017. The Complaint alleges that the
Respondent, Senior Philanthropy of Cheshire, LLC d/b/a Cheshire Regional Rehab Center (the
Respondent or Cheshire) violated Section 8(a)(4) and (1) of the National Labor Relations Act
(the Act) by subjecting Moore to more onerous working conditions and then disciplining and
eventually discharging him because he previously filed a charge with the Board and gave
testimony. The theory of discrimination here is unusual in that Moore’s prior charge and
testimony did not allege that any wrongdoing was committed while the Respondent was
operating the facility, but rather that wrongdoing occurred during an earlier period when an
entirely separate company was operating the facility. The Respondent filed a timely answer in
which it denied committing any violation of the Act. On the entire record, including my
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observation of the demeanor of the witnesses, and after considering the briefs filed by the
parties, I make the following findings of fact and conclusions of law.
FINDINGS OF FACT15
I. JURISDICTION
The Respondent, a corporation, provides skilled nursing and rehabilitation care at its
place of business in Cheshire, Connecticut. In conducting these operations the Respondent 10
annually derives gross revenues in excess of $250,000 and receives goods valued in excess of
$5000 directly from points outside the State of Connecticut. The Respondent admits, and I find,
that it is an employer within the meaning of Section 2(2), (6) and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES15
A. Background Facts
Since January 1, 2015, the Respondent has been the operator of a nursing home in
Cheshire, Connecticut, which is referred to as Cheshire Regional Rehab Center (the facility).20
The Respondent’s employees include, among others, licensed practical nurses (LPNs) and
certified nursing assistants (CNAs). The Respondent’s employees are not represented by a
Union. The Charging Party in this case, Marvin Moore, worked as a CNA for the Respondent at
the facility from November 5, 2015, until the Respondent terminated his employment on June
13, 2016. As a CNA, Moore was responsible for assisting residents with activities of daily living25
such as dressing, grooming, transferring from one position or location to another, eating, and
toileting. The facility has a ground floor with common areas and administrative offices, and
residents are housed on the upper three floors. Each resident floor has four hallways –
identified by the letters A, B, C, and D.
30
Prior to when the Respondent began operating the facility, a nursing home was operated
in the same building by a company known as Highlands Health Care Center. During this earlier
period, the operation in the building was referred to as “the Highlands.” The Highlands and the
Respondent do not have common ownership, a subsidiary-parent relationship, or an affiliate
relationship. On January 1, 2015, the Respondent took over operating the nursing facility from 35
the Highlands without a break in the provision of services to residents and with the Respondent
hiring most of the Highland’s nursing staff. Prior to his work with the Respondent, Moore had a
period of employment with the Highlands. Specifically, he worked with the Highlands from
March 3, 2011, until about September 10, 2014, when the Highlands terminated his
employment. On September 15, 2014, Moore filed an unfair labor practices charge alleging that40
the Highlands unlawfully terminated him because he expressed pro-union sentiments. The
Respondent did not have any hand in operating the facility at the time the Highlands terminated
Moore and, in fact, the Respondent did not even exist as a corporate entity until three months
later in December 2014.
45
On January 1, 2015, the Respondent became the licensee and tenant of the facility
previously operated by the Highlands. After that development Moore, on February 12, 2015,

1 After the close of the hearing, but consistent with on-the-record discussions during the hearing, the
Respondent submitted a proposed exhibit consisting of the transcript of a May 5, 2016, conversation
between Marvin Moore and Shawna Walker. The parties have stipulated to the admission of the exhibit.
The proposed exhibit is hereby received into evidence as Respondent Exhibit Number (R. Exh.) 31.
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3
amended his charge to add the Respondent as an employer. At the time of this amendment,
Moore had never worked for the Respondent. No allegation was added claiming a violation
based on actions occurring after the Respondent took over the facility. Rather, it appears that
Moore added the Respondent as an employer in order to make employment at the facility
possible as part of a resolution of the charge. The charge was eventually resolved through a 5
non-Board settlement under which the Highlands agreed to compensate Moore for lost
earnings. In addition, in light of the fact that the Highlands could no longer offer Moore
employment at the facility, the Respondent agreed to offer employment to Moore as part of the
settlement.2 The portion of the settlement relating to the relief that the Respondent was
providing to Moore stated:10
[The Respondent] will, within ten (10) days of the effective date of this
agreement, contact Marvin Moore and offer him employment by [the
Respondent] in the position he formerly held with [the Highlands] with his prior
seniority intact, assuming he satisfies the uniform hiring prerequisites to which all 15
employees of [the Highlands] were subject prior to employment with [the
Respondent].
The settlement included a statement that it did not reflect any admission of wrongdoing or
liability by the Respondent. The Respondent executed the settlement on October 26, 2015. 20
The Administrative Law Judge’s Order approving withdrawal of the charge and dismissal of the
complaint in the prior case was entered on November 2, 2015.3
The upper-level management at the Respondent includes an executive
director/administrator (executive director), a director of nursing services (DONS) who reports to 25
the executive director, and an assistant director of nursing services (ADONS) who reports to the
DONS. As will become clear below, during the relevant time period there was a great deal of
turnover among the managers who filled these positions. This turnover occurred not only
coincident with the Respondent taking over operation of the facility, but during the subsequent
period. In addition to the managers, the Respondent assigns charge nurses to the hallways on 30
each resident-care floor and they provide direct supervision to the CNAs.
Since taking over the facility, the Respondent has contracted with Tradition Senior
Management, Inc. (Tradition Management), consultants who help manage the facility. Tradition
Management provides management assistance to many skilled nursing and assisted living 35
facilities, including to over 30 buildings other than the one the Respondent operates. Tradition
Management does not share common ownership or have a subsidiary-parent relationship with
either the Respondent or the Highlands. During the period when the Highlands operated the
facility, Tradition Management had no role there, although it did assist the Respondent with
aspects of the transition.40

2 Aaron Bloom, the General Counsel of Tradition Management, represented the Respondent
regarding the settlement. He testified that officials of the Highlands told him that they wished to settle
with Moore, but needed the cooperation of the Respondent, as the new operator, to help with the re-
employment remedy. Bloom credibly testified that the Respondent agreed as “part of our ongoing
cooperation with the prior operator.”
3 The General Counsel repeatedly states in its brief that the Highlands discriminated against Moore
on the basis of his union support. The record here does not establish such discrimination, which in any
case is not directly relevant to the question of whether the Respondent, a completely separate entity,
violated Section 8(a)(4) by discriminating against him on the basis of his prior Board charge and
testimony, not on the basis of union support.
JD–17–18
4
The record contains no evidence of pro-union activities at the facility during the period
since the Respondent took over the operation.
B. Moore Begins Work at the Respondent Pursuant to Settlement
5
When Moore came to the Respondent pursuant to the settlement, he was required, as
were all the former Highlands CNAs who the Respondent hired, to complete an application
process with the new operator. The settlement agreement stated that Moore would have to
satisfy the “uniform hiring prerequisites” that were available to “all employees” of the Highlands
who came to work for the Respondent. Moore arrived at the facility at some time in October10
2015 to fill out an application and met with Darcey Ahearn (ADONS) and Carol Herpst (infection
control director). Although this was within 1 to 4 days of when the Respondent signed the
settlement on October 26, 2015, and before issuance of the order approving withdrawal of the
charge on November 2, 2015, Moore challenged Ahearn and Herpst about the fact that the
Respondent had not contacted him sooner to arrange his employment. Ahearn and Herpst told 15
him that an attempt had been made to contact him by phone, but Moore denied that he had
been contacted. At any rate, the settlement stated that the Respondent had 10 days from the
settlement’s effective date to contact Moore and offer him employment.
The record shows that Ahearn had never worked for the Highlands and was in no way 20
involved with that prior employer’s decision to terminate Moore in September 2014.4 In fact, the
only management official who the record shows was present at the facility both at the time the
Highlands terminated Moore and at the time the Respondent hired him was Lore Martinez,
DONS – a manager to whom Moore had expressed pro-union sympathies while at the
Highlands. However, Martinez left the Respondent a little more than a month after Moore came 25
to work there, and had been gone 4 to 5 months by the time the Respondent took any of the
actions that the complaint alleges are unlawful.
After Moore filled out an application, he underwent a security clearance process that
included fingerprinting. Moore testified that he was “shocked” at being fingerprinted and 30
expressed this to Ahearn. Although Moore testified that the fingerprinting requirement was an
example of the Respondent discriminating against him, the credible evidence showed not only
that fingerprinting was required by regulations of the State of Connecticut, but that Ahearn had
explained this to Moore.
35
Moore subsequently received a letter, dated November 5, 2015, stating that he had been
hired. After his hiring, Moore, along with four other individuals, began the Respondent’s 40-hour
orientation. The orientation was administered by Herpst and staff of the human resources
department. Moore complained to Herpst about having to attend the orientation. Although the
facility was now being run by an entirely new operator with its own employee handbook and 40
work rules, Moore objected. He told Herpst, “I was reinstated to come back to work[, a]nd . . . I
don’t think I should be at orientation because I know the building and everything.” Herpst stated
that she would find out what was going on from the executive director, Robert Powers. After 2
days of the scheduled 40-hour orientation, Ahearn granted Moore’s request to be excused from
the orientation. According to Moore, he responded: “I’ve been saying this the whole time. I 45
should never have been in orientation.”

4 Ahearn became the ADONS when the Respondent took over operation of the facility. On about
May 3, 2016, she was promoted to DONS. She remained in the DONS position during the period when
the Respondent disciplined and terminated Moore, but at the time she testified in this proceeding she was
no longer employed by the Respondent.
JD–17–18
5
When he started work at the Respondent, Moore also raised questions about his rate of
pay. At the end of the period of Moore’s employment at the Highlands he was receiving an
hourly wage of $12. When he started with the Respondent, he was immediately paid a higher
rate of $13.45 per hour. Moore raised a question about a wage increase that he thought was
part of the settlement agreement. It is not clear whether by “wage increase” he was thinking of5
the regular increases that he would have received if he had not been terminated by the
Highlands, or whether he believed he was entitled to something in addition to such increases.
In an email on October 27, 2015 – a few days before Moore’s hire date – Powers wrote to
Bloom to ask, inter alia, how Moore’s wage rate should be calculated. Bloom replied: “He
should get whatever wage he would be currently entitled to, as if he had never left employment. 10
There was no agreement, or even discussion, about any wage increase.” By January 31, 2015,
the Respondent increased Moore’s rate to $15 per hour. On April 24, 2016, the Respondent
increased his rate to $15.45 per hour – a raise that was granted without any request from
Moore.
15
C. Moore Begins with Respondent as a Floater,
and Eventually Obtains Permanent Assignment
At the time he had been terminated by the Highlands, Moore was in a CNA position, with
a 32-hour per week schedule, on the day shift. He had a permanent assignment on the 4th floor, 20
hallway D. When Moore returned to the building to work for the Respondent, he was placed in a
CNA position, with a 32-hour per week schedule, on the day shift. Another employee had
already been permanently assigned to the 4th floor, hallway D, and instead of bumping that
employee, the Respondent initially assigned Moore as a “floater” who would work on various
resident care floors/hallways. Moore objected that the settlement agreement language stating 25
that the Respondent was to employ him “in the position he formerly held with [the Highlands]
with his prior seniority intact,” meant that the Respondent should reassign or remove the CNA
who now had the 4th floor, hallway D, assignment so that Moore could immediately return to a
permanent assignment on that floor/hallway. Moore expressed this view to both Powers
(executive director) and Dall’Aste (payroll/benefits coordinator). Neither of these individuals had 30
been employed at the Highlands and it appears that both were unfamiliar with the settlement
language regarding Moore’s employment. Moore characterized the situation this way:
“Everybody was just lost. All department heads were just lost because the Company knew, but
I guess they didn’t really inform them.”
35
Powers made email contact with Bloom – the Tradition Management attorney who had
helped draft the settlement agreement – in an effort to ascertain whether the settlement required
the Respondent to bump another CNA from the 4th floor assignment and place Moore in it
immediately. Bloom responded that the settlement did not require such action. At trial, Bloom
testified that the settlement required that Moore be employed as a CNA, on the same shift, with40
the same number of scheduled hours (32 weekly) and the same level of seniority for purposes
of calculating pay and other benefits. Bloom credibly testified that the parties to the settlement
had never agreed that Moore would be assigned to the 4th floor hallway D. Moore testified that
when Powers informed him that the agreement did not mean that he would be able to bump into
his desired floor/hallway assignment, “I . . . shook my head in disbelief and couldn’t believe it.”45
As discussed above, Moore complained to Herpst about what he suggested was an
unreasonable delay in reaching out to him about employment after the settlement. The record
shows that this was at a time before the order withdrawing his charge pursuant to settlement
had even issued and within a few days of when the settlement was executed. He also 50
complained to Herpst about being required to participate, along with other recently hired
individuals, in an orientation regarding the Respondent’s operation. In December, about a
JD–17–18
6
month after he was hired, Moore complained to Herpst again, this time about not receiving his
preferred floor/hallway assignment. It is undisputed that, as of that point in time, Moore had not
yet received a permanent assignment with the Respondent. According to Moore, Herpst
responded to him, “Why do you always have to give us trouble? Why you can’t just do what we
tell you to do?” Herpst was not an individual who participated in the decisions to discipline and 5
terminate Moore, and the record does not show that she had direct supervisory authority over
Moore.5 Moreover, the daily floor and hallway assignments, about which Moore was
complaining to Herpst, were created by a different individual known as the scheduler or
scheduling coordinator. The daily attendance reports – which communicate the assignments to
CNAs – have boilerplate language stating that the scheduler and the DONS are the ones to be 10
consulted about the assignments. Moore admitted that he did not know whether Herpst played
any part in making the daily floor/hallway assignments.
After reviewing the evidence on this issue, I credit Bloom’s testimony that the settlement
agreement did not give Moore the right to be assigned to a particular floor or hallway at the 15
facility on either a permanent or a temporary basis. Bloom was involved in drafting the
agreement and his testimony is consistent with its language. The General Counsel did not
present contrary testimony from a witness with similar direct knowledge about the drafting of the
settlement. Moore’s assertion that the settlement entitled him to bump into a particular
floor/hallway assignment and/or otherwise choose his assignment relies on the language of the 20
settlement. That settlement language, however, makes no mention of Moore being assigned to
a particular floor or hallway and Moore does not claim that he was privy to settlement
discussions during which the Respondent made oral statements committing to anything with
regards to floor/hallway assignments. I note, moreover, that the record does not provide a basis
upon which to conclude that either Moore’s floater assignments or his eventual permanent 25
assignment on the third floor was more onerous than the fourth floor assignment that he argues
he was improperly denied. The record does not show, for example, that one assignment
created the opportunity for more or less overtime, included work that was more or less
physically demanding, or involved residents who were more or less difficult to care for. Nor
was there evidence that the facilities or equipment on one floor/hallway were better or worse 30
than those on another.
Moore, in addition to claiming that he was entitled to bump into a particular floor/hallway
assignment because of the settlement’s “position formerly held” language, also claims that he
was entitled to that and other assignment prerogatives based on his seniority. However, Moore35
conceded that he was not aware of any written policy stating that seniority gave CNAs the right
to priority placement in their desired floor/hallway assignments. The General Counsel submitted
the Respondent’s employee handbook as an exhibit, but points to no language in it, or in any
other written policy, that recognizes a connection between seniority and preference in
floor/hallway assignments. See General Counsel Exhibit Number (GC Exh.) 6. Nor was there 40
any testimony identifying an employer representative who had announced such a preference.
There was not even testimony from other CNAs that corroborated Moore’s assertion. I find that
the evidence does not establish that seniority entitled CNAs to bump other employees or
otherwise choose their floor/hallway assignments or avoid schedule alterations and certainly not
that it trumped resident-care considerations. To the extent that Moore testified otherwise, I find,45
based on his demeanor, his testimony, and the record as a whole, that his claims were self-
serving,6 uncorroborated, and unreliable. More credible was Bloom’s contrary testimony that

5 CNAs are directly overseen by charge nurses, who report to the ADONS, who reports to the DONS,
who reports to the executive director.
6 In general, I found Moore a less than credible witness. A few examples of the significant
discrepancies between his account and the documentary evidence, and even between his own accounts
JD–17–18
7
the settlement, which included restoration of Moore’s seniority, did not entitle Moore to particular
floor/hallway assignments. I note, moreover, that the record suggests that Moore’s seniority
was honored in the manner that Bloom testified that the parties had agreed to – i.e., Moore
received pay, vacation time, and other benefits consistent with his prior service.
5
As noted above, Moore was assigned as a floater when he began work with the
Respondent. Shortly thereafter, the Respondent’s scheduler informed Moore that there was an
available permanent assignment on the third floor. Moore submitted a written request, dated
January 21, 2016, asking to be permanently assigned to the third floor. Leslie Merwin, who had
recently come to the Respondent and replaced Martinez as the DONS, denied the request.10
Merwin’s written denial states that permanent assignments were only available to employees
working a 37.5 hour/week schedule, and Moore was working a 32 hour/week schedule. Moore
approached Merwin to ask her to reconsider the denial. Merwin advised Moore to resubmit the
assignment request. Within a day or two after Moore submitted that request, Merwin approved
it. Merwin testified that she decided that the quality of Moore’s work warranted making an 15
exception to the rule against granting permanent floor/hallway assignments to employees
working less than 37.5 hours per week.
Even when employees have permanent assignments, they will sometimes be assigned
to a different floor or hallway for a particular shift on a temporary basis. Nevertheless the 20
evidence shows that since the start of April 2016 – the period covered by the complaint
allegation relating to assignments – Moore was assigned to the 3rd floor on every single one of
the approximately 35 days that he worked. Respondent Exhibit Number (R. Exh.) 1. Although
these records are less than clear with respect to hallway assignments it appears that from April
1 to the time of his termination, Moore was assigned to hallway B of the 3rd floor on 25
approximately 31 of 35 shifts. On 2 days, Moore was given a “split” assignment for multiple
hallways on the 3rd floor. The General Counsel argues that the record shows that the
Respondent reassigned Moore more frequently than it did other CNAs with less seniority. The
evidence showed that some CNAs had more assignment consistency than Moore while others –
e.g., J. Miron – had less assignment consistency than Moore. Putting aside that the General 30
Counsel has failed to establish that the settlement entitled Moore to avoid alterations of hallway
assignments, I note that the record only establishes that a single CNA – Shawna Walker – had
a later hire date than Moore, but greater consistency in assignments. During the period
covered by the complaint, Walker was reassigned to a different hallway on just one shift,
compared to Moore who was reassigned on approximately 4 shifts. The General Counsel does 35
not cite to credible evidence showing that any other CNAs who had less seniority than Moore
were reassigned less frequently than him.
D. Discipline Relating to Alleged Neglect by Moore
40
On May 4, 2016 – the date of Moore’s alleged neglect of a resident – Moore was
working his permanent assignment on the third floor of the facility. By this time, the executive
director, DONS, and ADONS, who had been present when the facility was operated by the
Highlands were long gone. Cynthia Roessler, who had been the executive director during the
relevant portion of the Highlands era was gone, as was Powers, who had been the executive 45
director when the Respondent hired Moore. Terri Golec, the executive director at the time of the
discipline, had not worked for the Highlands and had yet to arrive at the Respondent either
when Moore was hired pursuant to the settlement agreement or in October and November 2015
when Moore was raising objections about orientation, fingerprinting, his floor/hallway
assignment, and supposed entitlement to a raise. Martinez, who had been the DONS at the time 50

at various times, are discussed below with regards to the events of May 4.
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8
when Moore was terminated by the Highlands, and had been the DONS during Moore’s first 5
weeks at the Respondent, was also long gone by the time a resident accused Moore of neglect.
Also gone was Martinez’s replacement, Merwin. Ahearn was the only manager who had been
present when the Respondent hired Moore who was also present at the facility at the time the
resident accused Moore of neglect. Even Ahearn had not worked for the Highlands – the 5
employer who was operating the facility during the time of the wrongdoing allegations in Moore’s
prior charge. Ahearn had recently been promoted from ADONS to DONS to fill the vacancy left
by Merwin’s departure.
The record shows that on the day of Moore’s alleged neglect of a resident, the floor on 10
which he was working was short-staffed. For a brief time, there were just two CNAs – Moore
and Shawna Walker – present to perform the work that was usually done by four CNAs.7
Around the time of the alleged neglect, a third CNA had arrived on the floor to assist, but that
CNA was still being trained. Damaris Castanon, an LPN, was also present on the floor as the
charge nurse. 15
Moore was working at a computer situated in an eating area on the third floor. He was
inputting information about resident care – a process that is described as “paperwork” even
though it is performed directly on a computer. A “call light” went off for a room down the hall,
indicating that a resident in that room had requested assistance. Moore left the computer and 20
went to the room. There he found two residents who were requesting assistance with toileting.
Resident #1 had recently had both of his legs amputated below-the-knee and was seated in a
chair. This resident had experienced some health issues relating to episodes of incontinence
and had been designated for special treatment – including routine, assisted, toileting before and
after meals. His daughter had recently written to the Respondent to complain about the care 25
provided to her father.
When Moore responded to the call light, he cleaned a handheld urinal and provided it to
resident #1. Moore’s understanding was that the resident was physically capable of using this
urinal without being transferred to the bed. Nevertheless, the resident stated that he had to be 30
transferred to his bed to use the urinal. Moore told the resident that, in that case, he would have
to wait.8 Moore also told resident #2 that he would have to wait for assistance with toileting.
Moore did not return to assist either of these residents in this instance. Rather, Moore resumed
working on a computer and never went back to the room to provide the assistance that the
residents had requested. Instead, Moore told Walker and charge nurse Castanon that the 35
residents had asked for assistance with toileting and that Walker should help them. Walker and
another CNA eventually provided the assistance that the two residents had requested from
Moore.
Later that day, one of the Respondent’s social workers reported to Ahearn that resident 40
#1 had complained to her about Moore’s failure to assist him in toileting. Also that day, Malisha

7 Shawna Walker is the same CNA who is sometimes identified in the record as Lashawna.
8 Moore testified that this resident was an “assist-2” for transfers, meaning that two staff members
had to participate in transferring the resident and Moore could not execute the transfer on his own.
Written, in-room, “care card” instructions for the resident were introduced at trial. Those care instructions,
and the testimony about them, indicate that this resident was an “assist-1” at the time of the May 4
incident, and that Moore, contrary to his testimony, could have transferred this resident without the
assistance of a second staff member. Tr. 397-398, 443, 479; R Exh. 26. At any rate, even assuming that
the resident required two-person assistance, it would not explain why, as is discussed infra, Moore
resumed working on the computer instead of returning as soon as possible with another CNA so that the
resident would not be left waiting to urinate.
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Petteway, a CNA working on the 3rd floor during the next shift, reported to Ahearn, in writing,
that resident #1 was complaining that he had an “awful morning” because he had asked Moore
to help him with toileting and Moore “told him he was too busy he had a lot of paperwork to do
and walked out of the room.” The resident reported that he had to wait 20 minutes before two
female aides came to assist him so that he could urinate. Ahearn then interviewed resident #1 5
on May 4 and made a written record of that interview, which Ahearn signed. According to that
account, when the resident said he “needed to be put in bed in order to use the urinal,” Moore
responded “I don’t have time for that, I have important paper work to do.” Then Moore told the
resident that he would “get someone else to help,” but the resident waited 20 minutes before he
was assisted by two other CNAs. 10
On May 4, Ahearn initiated an investigation of Moore’s possible failure to provide
services and, on May 5, Ahearn met with Moore and suspended him pending the investigation.9
Ahearn told Moore that resident #1 had complained that Moore said he had to finish paperwork
before providing requested toileting assistance. As part of her investigation, Ahearn obtained 15
statements, on May 5, from Castanon (the charge nurse on-duty) Walker (another CNA present
on the 3rd floor), and Moore himself. Castanon’s written account states that when Moore
returned from responding to the call light, he resumed working on the computer and told
Castanon that he was busy and that Walker should be the one to help resident #1 with toileting.
Similarly, Walker’s written account states that when Moore returned from responding to the 20
resident call light, he went “back to finishing his computer work and asked me to help” the
resident who needed assistance toileting. At the time, Moore did not confirm that Walker or
anyone else actually provided the assistance requested by resident #1.
As part of the investigation, the Respondent gave Moore the opportunity to submit a 25
written statement regarding the resident’s complaint. Moore provided a written statement on
May 5, which reads in its entirety:
I was doing book work on the computer and resident light was going off. I
answered the light and both residents said that they had to go to the bathroom. I 30
asked the resident if he could wait until I finished. He said OK but I told I would
go get somebody to take you to the bathroom. Just give me a few and I would
definitely take care of you. I told [Walker] as I was passing down the hallway one
minute after that on the way back down the hallway and informed her that the two
guys was next and they had to be toileted and since she had the other aid[e] with 35
her I assumed after telling her it would have got done.
On May 12, Ahearn issued a disciplinary suspension and final warning to Moore based
on the May 4 incident. On the same date, Ahearn provided Moore with a performance
improvement plan (PIP). The decision to take these actions was made by Ahearn in 40
consultation with Golec. The disciplinary notice explained the basis for the discipline as follows:
You answered a call light, the resident requested assistance getting back to bed
to use the urinal. You told the resident you did not have time. You had important
paperwork to finish. You then told the nurse to tell another CNA that the resident 45
needed assistance while you finished your computer work. Resident care and
safety must always come first; paperwork and/or computer work is not the first
priority.

9 Ahearn credibly testified that when abuse or neglect by a staff member is alleged, the Connecticut
Department of Public Health requires that the facility remove that staff member from the facility until the
investigation is completed.
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The disciplinary notice stated that the “next step in level of action” for a repeat violation would
be termination.
When the Respondent determines that an instance of neglect or abuse has occurred, it 5
is required to report the matter to Connecticut Department of Public Health. The Respondent
made the required report, and staff of the Department of Public Health made an unannounced
visit to the Respondent’s facility in November 2016 to investigate a number of matters, including
the alleged failure to provide care to resident #1 on May 4. The Department of Public Health
concluded that Moore’s conduct constituted a violation of State regulations. On November 21, 10
2016, the State issued a citation to the Respondent for this violation. GC Exh. 25, Pages 10-11.
Moore’s trial account regarding the May 4 incident differs in a few significant respects
from the one discussed above. For example, at trial Moore claimed that when he left resident
#1 he did not return to working on a computer, but rather proceeded directly to assist another 15
resident who had finished using a bedpan. However, Moore’s testimony in this regard is not
only contrary to the contemporaneous written statements of both Castanon and Walker, but is
not even supported by Moore’s own written statement from the Respondent’s investigation.10 In
addition, the transcript of a conversation that Moore recorded between himself and Walker
reflects an understanding that upon leaving resident #1’s room, Moore returned to performing 20
paperwork. Not only that, but Moore’s trial testimony that he was “giving a resident a bedpan”
“right before” the call light went off, Transcript at Page(s) (Tr.) 82-83, is inconsistent with the
written statement he provided during the investigation, in which he stated that he had been
working on a computer at the time he responded to the call light.
25
Moore testified that he did not tell resident #1 that he would have to wait to be toileted
while Moore finished paperwork. That is inconsistent with the contemporaneous account that
multiple representatives of the Respondent received from resident #1. It is also undercut by
Castanon’s and Walker’s contemporaneous written accounts, both of which indicate that when
Moore left resident #1 he did, in fact, resume working on the computer. Moore’s testimony is 30
even undercut to some degree by his own contemporaneous written statement, in which he
reports that prior to visiting the resident he had been “doing book work on the computer” and
asked if the resident could “wait until I finished.” I do not believe it is necessary to make a
factual finding regarding these discrepancies because it is clear, at a minimum, that after an
investigation the Respondent reasonably arrived at the version of events upon which it based 35
Moore’s May 12 discipline. It was not shown that before Moore was disciplined, he provided the
Respondent with the more favorable account of his actions that he offered at trial. Nevertheless,
to the extent that Moore’s trial testimony portrays his actions on May 4 in a more favorable light
than the version of events that emerged during the Respondent’s investigation, I find, based on
the evidence discussed above, that Moore’s testimony was not truthful.40
The testimony was unambiguous that CNAs are required to place resident needs over
the completion of paperwork. Tr. 422, 525.11 Moreover, although the record suggests that

10 At any rate, Moore’s conduct would not be proper even assuming he had made resident #1 wait for
toileting assistance so that he could remove a bedpan from another resident. Merwin credibly testified
that the proper action would have been for Moore to first help resident #1 to urinate since the resident
who was on a bedpan was already “stable.” Tr. 455-457.
11 In addition, the record shows that during orientation with the Respondent, Moore was provided with
a “Dependent Adult Abuse Staff Accountability Acknowledgment,” which states that resident “[n]eglect
includes, but is not limited to, lack of care and supervision and unmet physical, social, emotional, spiritual
or medical needs.” At the same orientation, Moore received a written statement of “resident’s rights.”
JD–17–18
11
Moore may well have been correct in believing that resident #1 was capable of using the urinal
without being transferred to the bed, it also shows that a CNA is required to honor a resident’s
choice from among the toileting options that have been approved for that resident. This, Merwin
stated, is “a dignity issue” and “a human rights issue” for residents. Tr. 392-393.
5
The General Counsel presented evidence regarding multiple other instances when the
Respondent determined that an employee’s care of a resident fell short. GC Exh. 17. The bulk
of such instances concern discipline from early to mid-2015 – a period immediately after the
Respondent took over the facility in January 2015 and several months or more before Golec
came to the facility as executive director. See, e.g., J. Melgarth (discipline from February 2015) 10
and T. Williams (discipline from August 2015). Some were from the period before either Merwin
or Ahearn were the DONS. In December 2016, one CNA, like Moore, was suspended and
given a written warning, because she refused a resident’s request for assistance with toileting.
GC Exh. 17, Pages 99-100. The record shows that, at least initially, some of the employees
discussed in the General Counsel’s brief received a written warning or other lesser discipline, 15
but not a suspension, where their conduct did not involve an intentional refusal of a resident’s
request for help. Ahearn credibly testified that there is a significant different between instances
when a failure to provide care is inadvertent or careless and those when, as in Moore’s case,
the failure takes the form of a staff member’s direct refusal of a resident’s request for help. In
the latter circumstance, Ahearn said, the Respondent is required to report the failure to the 20
Connecticut Department of Public Health. Tr. 506-507, 509. I find that evidence regarding
these instances of lesser discipline is not sufficiently detailed to give rise to an inference that the
same decision makers treated Moore substantially differently than other employees, much less
that they did so because of hostility towards the fact that Moore filed a charge, and gave
testimony, alleging wrongdoing by his former employer. At any rate, as the General Counsel 25
recognizes in its post-hearing brief, a number of the employees it discusses were ultimately
terminated for their continued failings. See, e.g, N. Blizzard, C. Bradix, J. Miron.
The General Counsel presented testimony regarding a section in the Respondent’s
employee handbook that sets forth different types of discipline that the Respondent may 30
impose. I note that neither that handbook section, nor any other policy statement, indicates that
the Respondent had a progressive discipline policy in the sense of a schedule setting forth
specific levels of discipline depending on the type of infraction or the number of infractions. The
handbook section states that “[t]he Company is not bound to use progressive discipline in all
cases and reserves the right to treat disciplinary situation[s] on a case-by-case basis.” GC Exh. 35
6 at Pages 14-15. It further states that the violation of certain rules may result in “disciplinary
action up to and including termination, even for a first offense.” Id. at Page 13.
E. Discipline for Leaving the Facility without Clocking Out
40
The Respondent terminated Moore in June 2016 after he admitted he had left the
facility’s premises during his shift without clocking out. The Respondent maintains a time clock
at the facility, and CNAs are required to clock in at the start of their shifts and clock out at the
end of their shifts. The CNAs get two 15-minute breaks and one 30-minute break. The
Respondent’s employee handbook has a section, in effect at the time Moore was terminated, 45
which states in relevant part: “Employees are also required to clock out any time they leave the
work site for any reason other than assigned work duties.” GC 6 at Page 26, Section 5.5. At
orientation, Moore signed a document acknowledging receipt of this handbook. The reasons for
the requirement that employees clock out if they leave the work site during their shift include:
making sure employees are working when they are being paid; monitoring compliance with50

Those rights include the right to “[r]eceive a prompt response to all responsible requests and inquiries.”
JD–17–18
12
staff-to-resident ratios; and allowing the Respondent to determine, for reasons related to liability,
who is in the building in the event of an emergency. On May 24, 2016, a few weeks before
Moore’s termination, the Respondent posted a notice at the facility which stated: “If you are
leaving the premises for your meal break you must punch out. Please punch back in when you
are done with your break.” The posting was placed in areas frequented by CNAs, but Moore 5
testified that he had not noticed it.
On June 6, Adam Vargas, the Respondent’s maintenance supervisor, informed Dall’Aste
that he had seen Moore returning to the facility by car during his shift. Vargas12 asked Dall’Aste
whether Moore had clocked out before leaving the facility. Dall’Aste checked the time clock 10
system, which indicated that Moore had not clocked out before leaving. Golec met with Moore
that day and asked him whether he had left the premises during his shift. Moore admitted that
he had left the facility and driven to a gas station to buy cigarettes. He conceded to Golec that
before leaving the premises he had neither clocked out nor requested the charge nurse’s
approval to leave the facility. Golec informed Moore that the handbook required that employees15
clock out when leaving the facility during their shifts. Moore responded that he was not aware of
this policy. He told Golec that he was “sorry” and stated: “[O]ut of the 5 years I’ve been here, . .
. I never, ever left this building. This is my first time.”
Moore’s next scheduled work day was June 13. On that day, Ahearn suspended Moore 20
pending investigation for leaving the premises without clocking out. At that time, Moore
provided the following written statement to the Respondent:
I left the building when I was on break around 9:05 a.m. Went to the gas station
and returned by 9:10 a.m. I wasn’t aware that we couldn’t leave the building until 25
the administrator informed me that . . . employee couldn’t leave the building
without punching out. It was my first time ever leaving the building out of the five
years I have been here with the company.
Golec was the one who made the decision to terminate Moore for violating the rule 30
against leaving the premises without punching out. She credibly testified that, at the time of that
decision, she did not know that Moore had filed the prior Board charge. Tr. 568. As discussed
above, Golec had not worked at the Highlands and had not yet arrived at the Respondent when
Moore began his employment pursuant to the settlement of his charge alleging misconduct at
the Highlands. Golec made the decision to terminate Moore after discussing the matter with 35
Ahearn and Dall’Aste. Golec and Dall’Aste also sought email input from Heather McKamey, the
vice president of human resources at Traditions Management. Prior to this time, McKamey’s
involvement at the Respondent had been, in her words, “arm’s length” and she did not know
Moore, had no part in the decision to hire him, and did not know who made the hiring decision.
The consulting company for which McKamey worked had had no involvement with the 40
Highlands when it operated the facility. On June 15, Dall’Aste provided McKamey with Moore’s
disciplinary file and asked “how you wish for us to proceed.” Later that day, McKamey asked
Dall’Aste for additional information – including Moore’s signed acknowledgment of receipt of the
employee handbook, a copy of the report the Respondent sent to the Connecticut Department
of Public Health regarding Moore’s alleged neglect of a resident on May 4, information about the 45

12 Vargas was a custodial employee, not yet a supervisor, when Moore began working for the
Respondent. Moore testified that, as a rank-in-file employee, Vargas had made some negative
comments to him about his return to the facility and said he hoped Moore would not try to bring a union to
the facility. According to Moore, he responded to Vargas by stating that he did not “have anything to do
with a union.” In its brief, the General Counsel does not argue that I should attribute Vargas’ animus as a
rank-in-file employee to the Respondent.
JD–17–18
13
date the Respondent posted the notice about clocking out during meal breaks, and copies of the
statements that the Respondent had received from Walker about the May 4 incident and from
Vargas regarding the June 6 incident. McKamey reviewed the discipline question from what
she characterized as a “compliance” perspective and found no basis for concern about Golec
proceeding to take disciplinary action. Later on June 15, McKamey informed Golec that “If your 5
intention is to term[inate] please let him [know] today or tomorrow.” Golec responded: “Heather,
thank you so much, at this time I feel we should term[inate], in my mind he stole from the
company and indicated he tape recorded an employee, both are inappropriate.”
Golec herself notified Moore of the termination decision by telephone. At trial, Golec 10
testified that her decision to terminate Moore was based on his leaving the building during a
shift without clocking out and without permission. She stated that she did not base the
termination decision on the neglect incident in May. The Respondent has not claimed that
Moore’s attendance record played any part in the decision to terminate him. The record shows
that, during Moore’s 7-month tenure with the Respondent, he was late a total of 49 times. GC 15
Exh. 24. Sometimes he was tardy by just a few minutes, but in numerous cases he was late by
10 minutes or more, and in some instances by over a half hour. Merwin discussed Moore’s
habitual tardiness with him, but the Respondent did not take any disciplinary action based on it.
At trial, Moore testified that other employees left the building without clocking out and 20
were not disciplined. In particular, he reported that during their breaks a number of employees
went outside without stopping at the time clock and jogged around the facility – sometimes
crossing into areas that were beyond the facility’s grounds, before circling back. Moore’s
testimony did not make clear how far off the facility’s grounds these employees went, or whether
they were still visible from the facility when doing so. Tr. 103-104. At any rate, based on 25
Moore’s demeanor, the testimony and the record as a whole, I find this testimony to be self-
serving, vague, and unworthy of credence. Although Moore stated that joggers did not clock out
before jogging into areas off the grounds, he did not name a single specific employee who had
done this or identify a specific instance when it had occurred. On the face of it, Moore could not
know that his assertions in this regard were accurate unless he had followed a particular 30
employee inside the facility to see whether that employee stopped at the time clock and then
followed that same employee outside and watched to see whether he or she strayed off the
facility’s grounds. Moore did not testify that he had made such efforts. Nor does he claim that
he had any way of knowing whether the jogging employees had obtained their supervisor’s
approval to jog outside the building during their breaks. Even if Moore’s testimony is credited, it 35
would not establish that Golec, Ahearn, Dall’Aste, or McKamey had knowledge of these
instances. Similarly, Moore stated that employees left the facility on their breaks to get food, but
for much the same reason as her testimony regarding joggers, I found this testimony self-
serving, vague, and unworthy of credence. Even if credited, his testimony would not show that
Golec, Ahearn, Dall’Aste or McKamey knew about any such conduct.13 In fact, Golec credibly 40

13 The General Counsel presented the testimony of Elizabeth Martell regarding this point. Martell
worked at the Respondent for a total of about 6 weeks in the spring of 2015. During that short period of
time she was disciplined for tardiness – a fact she only recalled after being presented with information in
her Board affidavit. She stated that during her period of employment she and other employees would
sometimes leave the facility to get food without clocking out. Her testimony on this point was vague. She
did not identify any of the other employees who supposedly did this, and was unable to say who the
executive director, DONS or ADONS were at the time. At any rate, her brief period of employment would
have been about a year prior to when Moore was terminated and prior to when Golec arrived at the
facility. It was also long before the Respondent posted a notice to employees that indicated heightened
concern about employees leaving the facility during their shifts. Even if one assumes that Martell’s
testimony was accurate, it would not demonstrate that the responsible officials were aware of Martell’s
violation or that the Respondent would not have taken some action against Martell based on the conduct
JD–17–18
14
testified that she did not know of any other employees who had left the facility during their shifts
without clocking out and gone to their cars or to “do laps” around the area. Tr. 545. The credible
evidence did show that employees who smoked cigarettes during their breaks would do so in
designated smoking areas outside the building. Golec was aware of this and of the location of
the designated smoking areas. Thus employees who visited these smoking areas during their 5
breaks could be easily accounted for if necessary. That is something that cannot be said of
Moore when he drove away from the facility and went to a store without telling anyone he was
leaving the premises and without clocking out.
The evidence showed that one employee, in addition to Moore, had been terminated for 10
violating the policy against leaving the premises without clocking out. That employee, L.
Lazare, was terminated on January 24, 2017 – about 7 months after Moore was terminated.
Like Moore she left the facility to go to a store and did so without clocking out and without
obtaining her supervisor’s approval. Lazare, like Moore, was terminated for the first offense of
this kind. She had a previous history of tardiness, and had received a first written notice for that 15
conduct. She had never received a second written notice, a final notice, or a suspension, prior
to being terminated. By the time of Lazare’s termination, Golec and Ahearn were no longer with
the Respondent. Dall’Aste was still present at the facility and signed Lazare’s termination notice
as a witness.14
20
F. The Complaint Allegations
The complaint alleges that the Respondent violated Section 8(a)(4) and (1) by
discriminating against Moore because he filed Board charges and gave testimony: since about
April 2016 when it imposed more onerous working conditions on Moore by altering his work 25
schedule; on about May 12, 2016, when it disciplined Moore; and on June 13, 2016, when it
discharged Moore.
ANALYSIS
30
A. Discipline
The complaint alleges that the Respondent violated Section 8(a)(4) and (1) by
discriminating against Moore because he filed an unfair labor practices charge and gave
testimony alleging wrongdoing by the Highlands (his former employer), and later added the 35
Respondent as an additional employer after it took over the facility. The General Counsel’s brief
also assumes that this complaint allegation is broad enough to encompass discrimination based

if she had not ended her brief employment after being disciplined for tardiness. Moreover, although Martel
did not recall ever being disciplined for failing to clock out when she left the facility during her shifts, she
also initially stated that she did not recall the fact that she had been disciplined for tardiness. Given her
short tenure, the issues with her memory, and the fact that she worked under different managers than
Moore had, Martell was not a competent witness to testify about the enforcement of the clock-out rule
during Moore’s tenure.
14 The General Counsel cites to lesser discipline that was issued to another CNA, L. Jenkins, for
“missed punches” in late 2016 and early 2017. However, the evidence does not show the details of this
violation. In particular, it does not show that Jenkins had, like Moore, left the premises in the middle of
her shift without punching out and without notifying a supervisor.
JD–17–18
15
on the Respondent’s supposed animus against Moore for having been hired pursuant to the
settlement of the prior charge.15 The Board applies the analysis set forth in the Wright Line
analysis to allegations that an employer violated Section 8(a)(4) and (1) by discriminating
against “an employee because he has filed charges or given testimony” in a Board proceeding.
Verizon, 350 NLRB 542, 546-547 (2007), American Gardens Mgmt. Co., 338 NLRB 644, 644-5
645 (2001), McKessen Drug Co., 337 NLRB 935, 936 (2002): Gary Enterprises, 300 NLRB
1111, 1113 (1990), enfd. 958 F.2d 368 (4th Cir. 1992) (Table). Under the Board's Wright Line
analysis, the General Counsel bears the initial burden of showing that the Respondent's
decision to take adverse action against an employee was motivated, at least in part, by
considerations prohibited by the Act. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 10
(1st Cir. 1981), cert. denied, 455 U.S. (1982), approved in NLRB v. Transportation Corp., 462
U.S. 393 (1983). The General Counsel may meet this burden by showing that: (1) the employee
engaged in union or other protected activity, (2) the employer knew of such activities, and (3)
the employer harbored animosity towards the protected activity. Camaco Lorain Mfg. Plant, 356
NLRB 1182, 1184-1185 (2011); ADB Utility Contractors, 353 NLRB 166, 166-167 (2008), enf. 15
denied on other grounds, 383 Fed. Appx. 594 (8th Cir. 2010); Intermet Stevensville, 350 NLRB
1270, 1274-1275 (2007); Senior Citizens Coordinating Council, 330 NLRB 1100, 1105 (2000);
Regal Recycling, Inc., 329 NLRB 355, 356 (1999). If the General Counsel establishes
discriminatory motive, the burden shifts to the employer to demonstrate that it would have taken
the same action absent the protected conduct. Camaco Lorrain, supra; ADB Utility, supra; 20
Intermet Stevensville, supra; Senior Citizens, supra.
For the reasons discussed below I find that the General Counsel has failed to meet its
initial burden because it has not shown that the Respondent harbored animus towards Moore’s
prior Board activities. In reaching this finding, I considered that the Board closely scrutinizes the 25
treatment of employees reinstated under Board orders and settlement agreements. See, e.g,
Sahara Las Vegas Corp., 297 NLRB 726, 732 (1990) and Great Western Produce, 293 NLRB
362, 370 (1989). I also considered that, in the absence of direct evidence of its existence,
animus may be found based on the record as a whole, including “such factors as
inconsistencies between the proffered reasons for the discipline and other actions of the30
employer, disparate treatment of certain employees compared to other employees with similar
work records or offenses, deviations from past practice, and proximity in time of the discipline to
the union [or other protected concerted] activity.” Robert Orr/Sysco Food Services, 343 NLRB
1183, 1184 (2004), enfd. mem. 184 Fed. Appx. 476 (6th Cir. 2006); see also Brink's, Inc., 360
NLRB 1206, 1206 fn.3 (2014); Camaco Lorain Mfg. Plant, supra. 35
Out the outset I note that the broad circumstances in which this case arises are not
conducive to finding that the Respondent’s actions were based on animus against Moore for
previously filing charges with the Board and giving testimony. It was not until well after the
alleged wrongdoing by the Highlands that the Respondent became the facility’s operator. Why 40
would the Respondent have any hostility against Moore based on prior charges and testimony
that alleged wrongdoing by his prior employer and by the long-since departed managers of that
employer? When Moore amended the prior charge to add the Respondent as an employer, he
did not add any allegation that wrongdoing had taken place since the Respondent took over the

15 In this regard, I note that while the complaint recites facts relating to the Respondent’s hiring of
Moore, the complaint allegation is that the Respondent violated Section 8(a)(4) by discriminating against
Moore “for filing charges or giving testimony” not that it did so by discriminating based on the fact that he
was hired pursuant to a settlement. GC 1(i), Complaint, at Paragraph 9. I need not resolve the question
of whether the complaint allegation is broad enough to reach discrimination on the latter basis because,
as discussed below, the evidence does not demonstrate that the Respondent bore animus against Moore
because he was hired pursuant to the settlement agreement.
JD–17–18
16
facility. Why would Grolec and Ahearn, or for that matter Bloom and McKamey, bear animosity
towards Moore for alleging wrongdoing by an employer for whom they had never worked and by
managers who were working for that other employer? Indeed, the record does not contain a
shred of direct evidence that any of the supervisors and agents who participated in making the
decisions challenged in this proceeding, bore such animosity. I also find that it was not shown 5
that the Respondent bore animus towards Moore because it hired him pursuant to a settlement
agreement concerning alleged wrongdoing at the Highlands. In fact, the Respondent did not
avoid hiring persons who had worked for the Highlands, but rather used them as the primary
source of employees. There is no record evidence indicating that, prior to the settlement, the
Respondent made an effort to avoid employing Moore or any other former employee of the 10
Highlands. Moreover, the Highlands, not the Respondent, was responsible for providing
monetary relief under the settlement. I note, also, that the record does not show that between
the time the Respondent began operating the facility and the time Moore was terminated, its
employees had engaged in union activity or other activity protected by the Act. Indeed, the
complaint does not allege that Moore engaged in any protected activity during his period of 15
employment with the Respondent. On the face of it, this constellation of circumstances steers
away from acceptance of the General Counsel’s argument that the Respondent had animosity
towards Moore because of his prior charge and testimony.
Against this background, the General Counsel struggles to conjure the appearance of20
animus out of a combination of what it characterizes as suspicious timing, disparate treatment, a
failure to properly investigate the accusations against Moore, and shifting defenses.
Examination of the evidence does not support finding that consideration of any of these indicia,
either alone or in combination, favors finding animus. For example, the timing of the disciplinary
actions16 actually weighs against finding animus based on Moore’s prior charge and testimony. 25
Moore was not shown to have engaged in activity protected by Section 8(a)(4) and (1) at any
time in proximity to the challenged discipline and discharge decisions. Indeed, the last time
Moore had either filed a charge or given testimony was approximately 15 months prior to the
challenged discipline. Moore did not file additional charges or give testimony or otherwise
participate in Board processes during the 8 months after the Respondent hired him and before it30
terminated him. Prior to receiving resident #1’s complaint about Moore, the Respondent had
taken no disciplinary action at all against Moore – this despite the fact that Moore’s habitual
tardiness presented the Respondent with ample opportunity to do so. Given these
circumstances, I find it wholly implausible that the Respondent’s managers would suddenly
decide in May 2016 that it was time to retaliate against Moore for his temporally distant charge 35
and testimony alleging that a different employer had discriminated against him because of his
union support. On the record here, the timing of the Respondent’s discipline and termination of
Moore weighs against a finding of animus.
The General Counsel’s assertion that animus is indicated by the inadequacy of the 40
Respondent’s investigation of Moore’s infractions is similarly unsupported on the record here.
Regarding the Respondent’s investigation of Moore’s conduct when he left the facility during his
shift, the investigatory efforts were clearly adequate given that Moore admitted to that conduct
when asked about it by Golec. There was no contrary evidence and simply no reasonable need
to further investigate what Moore did. There is also no dispute that Moore’s conduct was 45

16 The Board has put significant weight on the timing of discipline when assessing whether an
inference of animus is appropriate. Camaco, 356 NLRB 1185; LB&B Associates, Inc., 346 NLRB 1025,
1026 (2005), enfd. 232 Fed. Appx. 270 (4th Cir. 2007); Desert Toyota, 346 NLRB 118, 120 (2005); Detroit
Paneling Systems, 330 NLRB 1170 (2000), enfd. sub nom. Carolina Holdings, Inc. v. NLRB, 5 Fed. Appx.
236 (4th Cir. 2001); Bethlehem Temple Learning Center, 330 NLRB 1177, 1178 (2000); American Wire
Products, 313 NLRB 989, 994 (1994).
JD–17–18
17
prohibited by the provisions of the Respondent’s employee handbook. The record does not
show that Golec, Ahearn or anyone else involved with the decision to terminate Moore had
knowingly tolerated such misconduct by other employees. To the contrary, Golec credibly
testified that she did not know of other employees who left the facility without clocking out to go
to their cars or to jog around the facility’s grounds. Moore himself told the Respondent that 5
during his combined “5 years” working for the Highlands and the Respondent, he had never
before left the facility without clocking out. This strongly suggests that Moore was aware that
such conduct was neither common nor condoned.
The General Counsel’s contention that the Respondent’s investigation of Moore’s refusal 10
to assist a resident was suspiciously inadequate is also without merit. At the time of this
incident the Respondent obtained multiple statements. Ahearn and Petteway (another CNA)
each reported that resident #1 had complained that he asked Moore to transfer him to the bed
for toileting, but that Moore had responded by saying he had paperwork to finish and refusing to
provide the assistance. A third employee, a social worker, reported to Ahearn that resident #1 15
had made the same complaint. In addition, the Respondent obtained statements from witnesses
Castanon (charge nurse) and Walker, both of whom stated that when Moore left resident #1 he
resumed working on the computer. I note, moreover, that while, at trial, Moore claimed that
after leaving resident #1 he proceeded directly to assisting another resident, not back to the
computer, the statement he gave to the Respondent at the time does not support his trial 20
testimony. If anything, Moore’s written statement during the investigation corroborates the
accounts of Castanon and Walker. In that written statement, Moore recounted that he had been
doing “book work on the computer” when he went to resident #1, and had asked the resident if
“he could wait until I finished.” Given the consistency of the accounts of resident #1’s complaint,
the corroboration provided by both Castanon and Walker, and that Moore’s own written 25
contemporaneous account was not to the contrary, it was reasonable for the Respondent to
proceed to discipline without further investigation. Moreover, the fact that the Connecticut
Department of Public Health, after its own investigation, concurred with the conclusion of the
Respondent’s investigation regarding Moore’s conduct, rebuts the General Counsel’s
suggestion that the Respondent’s investigation only reached the conclusion it did because of 30
animus.
The General Counsel contends that animus is shown in this case because the discipline
imposed on Moore for his violations of the Respondent’s policy was inconsistent with the
discipline imposed on others. The Board has held that a showing of “blatant disparity is 35
sufficient” to meet the General Counsel’s burden of proving animus. New Otani Hotel &
Garden, 325 NLRB 928, 928 fn.2 (1998). Where the General Counsel is attempting to use such
disparity to satisfy its initial burden, as it is here, it is the General Counsel who bears the burden
of proving the existence of such disparity. The record evidence regarding the cases that the
General Counsel points to are not sufficiently developed to meet that burden. Even the skeletal 40
evidence presented shows that most of those disciplinary decisions were made at a time before
Grolec and Ahearn held the relevant decision making positions and involved misconduct that
differed in significant respects from Moore’s. As found above, many of the supposed
comparator cases involved a failure to provide care through a lack of conscientious attention,
not, as in Moore’s case, the intentional and direct refusal of a resident’s request for specific 45
assistance. If one overlooks such meaningful distinctions, as the General Counsel does where
convenient to its case, the evidence shows instances in which persons found guilty of violations
comparable to Moore’s received discipline comparable to what he received. For example, as
noted in the statement of facts, in December 2016 another CNA who, like Moore, refused a
resident’s request for assistance with toileting, received a suspension and a written warning. 50
Similarly, in January 2017 another employee who, like Moore, left the Respondent’s facility
during her shift without clocking out was, like Moore, terminated by the Respondent on that
JD–17–18
18
basis. I find that the General Counsel had not come close to showing disparities in treatment
sufficient to meet its initial Wright Line burden of proving that impermissible animus played a
part in the Respondent’s decisions to discipline and terminate Moore.
The General Counsel also argues that animus is shown because the Respondent 5
offered contradictory and shifting defenses for its actions. This argument is meritless because
the record does not show that the Respondent offered contrary and shifting defenses. A
respondent’s shifting defenses can be compelling evidence of pretext when it is shown that the
respondent gave the employee or the Board nondiscriminatory explanations for its actions, but
every time such an explanation was shown to be implausible, the employer pivoted to another, 10
sometimes contradictory, nondiscriminatory explanation. See, e.g., Bay State Ambulance
Rental, 280 NLRB 1079, 1087-1088 (1986). The record does not show that the Respondent did
anything of the kind in this case. The General Counsel points to the Respondent’s internal
email discussions in which Ahearn stated to McKamey that she believed terminating Moore was
justified both as a result of his “stealing” time by leaving the premises without clocking out and 15
because he recorded a conversation with another employee.17 However, those internal
deliberations are not the same as defenses that that are raised to Moore or the Board. The only
explanation for the termination decision that the Respondent ever gave to Moore or the Board,
or set forth in the disciplinary paperwork, was Moore’s conduct when he left the facility during
his shift. The evidence does not show that the Respondent waivered or pivoted from that 20
defense.
The General Counsel also asks me to find relevant animus based on Moore’s testimony
that Herpst asked him, “Why do you always have to give us trouble? Why can’t you just do
what we tell you to do?” To begin with, the record does not show that Herpst had any 25
involvement with the disciplinary actions against Moore. To the contrary, Herpst was not the
decisionmaker or even one of those who the record shows was consulted about those
decisions. Moreover, while Moore had, in fact, been giving the Respondent “trouble” since
coming to work at Cheshire – e.g., complaining about having to attend orientation, questioning
the fingerprinting requirement, and demanding special prerogatives regarding assignments –30
the General Counsel has not established that any of that trouble was activity protected by
Section 8(a)(4) and (1).
To summarize, the General Counsel would have me conclude that when the
Respondent’s managers disciplined Moore for neglecting a resident’s request for help and 35
shortly thereafter terminated him for leaving the facility during his shift without clocking out, it
was discriminating because Moore had, in the somewhat distant past, filed a charge and given
testimony that, while it named the Respondent as an additional employer, alleged unlawful
conduct only by a different employer and different managers. Moreover, the General Counsel
asks me to reach that conclusion despite the fact that the Connecticut State Department of 40
Public Health independently concluded that Moore’s neglect of the resident constituted a
violation of state regulations. It may not be impossible to make such a case, but the General
Counsel falls incalculably short of doing so in this case with its strained attempts to characterize
the Respondent’s reasonable actions as examples of suspicious timing, disparate treatment,
and investigatory malfeasance.45
For the reasons discussed above, I conclude that the complaint allegations regarding the
discipline that Moore received in May 2016 and the termination of his employment in June 2016
should be dismissed.

17 The General Counsel does contend either that Moore engaged in activity protected by the Act
when she made this recording or that Moore was disciplined because she made the recording.
JD–17–18
19
B. Allegation of More Onerous Working Conditions
The General Counsel has also failed to establish a prima facie case regarding its
allegation that the Respondent discriminated on the basis of Moore’s prior charges and 5
testimony when it imposed more onerous working conditions on him by altering his work
schedule. The General Counsel’s effort to establish a prima facie case in this regard rests on
the premise that the settlement agreement entitled Moore to enhanced consistency regarding
floor/hallway assignments. As discussed above in the statement of facts, however, the
settlement did not give Moore rights regarding his floor/hallway assignments.10
In addition, I note that the evidence failed to show that Moore’s relatively rare
reassignments to different hallways constituted “more onerous working conditions.” There was
no meaningful evidence regarding differences between the work that CNAs on different
hallways were called upon to perform. In particular, there was no evidence that the hall 15
reassignments Moore received subjected him to more physically demanding duties, more
difficult residents, inferior facilities or equipment, or different opportunities for overtime. Nor did
the record demonstrate any way in which the simple fact of being reassigned on occasion to
cover a different hallway on the same floor during a particular shift burdened Moore. Thus even
if one believes, contrary to the evidence and my findings, that the Respondent assigned Moore 20
in a manner that did not fully comply with the settlement agreement, a violation based on “more
onerous working conditions” would not be shown here. See Baddour, Inc., 281 NLRB 546, 548
(1986) (Change in assignment does not constitute more onerous working conditions where it is
not demonstrated that the new duties are, in fact, more onerous.), enfd. 848 F.2d 193 (6th Cir.
1988), cert. denied 488 U.S. 944 (1988). A different analysis might be in order if the complaint 25
allegation was that the Respondent had violated the Act by failing to comply with the settlement,
but that is not alleged. Nor does the record show that the General Counsel ever pursued a
compliance action to compel adherence to the view of the settlement that it forwards here.
The complaint allegation that the Respondent altered Moore’s assignment, and thereby 30
subjected him to more onerous working conditions, fails for yet another reason. The evidence
shows that the alterations to Moore’s assignment were de minimis. See Scranton Lace Co., 294
NLRB 249, 252 (1989) (allegation of discriminatorily imposed “more onerous working
conditions” fails where the conditions at-issue are “de minimis”). As noted in the statement of
facts, during the period covered by the complaint allegation, the Respondent never altered 35
Moore’s floor assignment. There were four possible hallway assignments on that floor, and the
Respondent was shown to have occasionally altered which hallway it assigned to Moore.
However, in the vast majority of cases during the relevant time period the Respondent assigned
Moore to the same floor and the same hallway. It was in just a handful of instances that Moore
was assigned to other hallways on the floor. The evidence shows that there were other40
employees, for example Miron, who had their floor/hallway assignments altered more frequently
than Moore. Only a single CNA on the floor – Walker – was shown both to have fewer “altered”
assignments than Moore and to have less seniority. Thus even if one assumes, contrary to the
record and my findings, that the settlement agreement language regarding seniority entitled
Moore to preferred treatment with respect to floor/hallway assignments, the evidence here does 45
not show that the Respondent meaningfully deviated from that requirement.
For the reasons discussed above, the complaint allegation that the Respondent violated
Section 8(a)(4) and (1) since April 2016 by discriminatorily imposing more onerous working
conditions on Moore should be dismissed. 50
JD–17–18
20
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2(2), (6) and (7) of the
Act. 5
2. The Respondent was not shown to have committed any of the violations of Section
8(a)(4) and (1) alleged in the complaint.
On these findings of fact and conclusions of law and on the entire record, I issue the 10
following recommended Order.18
ORDER
15
The complaint is dismissed.
20
Dated, Washington, D.C. March 9, 2018.

25
PAUL BOGAS
Administrative Law Judge

18 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
~~9--~~`_