Camelot Terrace

National Labor Relations Board - Board Decisions

Dec 30, 2011

357 N.L.R.B. 1934 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 161
1934
Camelot Terrace and Service Employees Internation-
al Union Healthcare Local 4 and Service Em-
ployees International Union Healthcare Illinois
and Indiana

Galesburg Terrace and Service Employees Interna-
tional Union Healthcare Local 4 and Service
Employees International Union Healthcare Illi-
nois and Indiana. Cases 33–CA–015584, 33–CA–
015669, 33–CA–015781, 33–CA–015587, 33–CA–
015670, and 33–CA–015780
December 30, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On December 31, 2009, Administrative Law Judge
John H. West issued the attached decision. The Re-
spondents filed exceptions and a supporting brief, and
the Charging Party and the General Counsel filed an-
swering briefs.
The National Labor Relations 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, and conclusions as modified and restated in full
below, to adopt the recommended Order as modified and
restated in full below, and to modify the remedy.
The Respondents except only to the judge’s order
granting the General Counsel’s request that the Respond-
ents reimburse the Union “for all costs and expenses in-
curred in collective-bargaining negotiations from January
2008 to the last bargaining session in connection with
[all of the instant cases].” In addition, the Respondents
except to the judge’s order that they reimburse the Board
and Charging Party Service Employees International
Union Healthcare Illinois and Indiana (the Union)1 for
“all costs and expenses incurred in the investigation,
preparation, and conduct of Cases 33–CA–15780 and
33–CA–15781 before the Board and courts.” We find
that, as modified below,2 the requested remedies will
effectuate the policies of the Act.
1. Procedural background
Respondents Camelot Terrace (Camelot) and Gales-
burg Terrace (Galesburg) operate nursing homes in
Streator, Illinois, and Galesburg, Illinois, respectively.
Both corporations are owned by Michael Lerner. The
Union was certified as the exclusive representative of the
employees at each location in 2007. The conduct at issue

1 The Union was formerly known as Service Employees Internation-
al Union Local 4.
2 See fn. 8, infra.
in this proceeding involves the parties’ 2008–2009 bar-
gaining for an initial contract at each facility.
The October 29, 2008 amended consolidated com-
plaint in Cases 33–CA–015584, 33–CA–015587, 33–
CA–05669, and 33–CA–05670 alleged that the Respond-
ents, in violation of Section 8(a)(5) and (1), failed and
refused to bargain in good faith by restricting the dates
and length of bargaining sessions, repeatedly canceling
and shortening sessions, reneging on or withdrawing
from tentative agreements without good cause, refusing
to bargain on economic subjects, and refusing to make
economic proposals. After the November 2008 hearing
in these cases, the judge approved settlement agreements
between the Union and the Respondents that required,
among other things, that the Respondents would bargain
for at least 20 hours per month per facility and at least 5
hours per session, until an agreement or good-faith im-
passe was reached in each unit. The consolidated pro-
ceeding was therefore continued indefinitely.
On May 29, 2009, however, the General Counsel is-
sued a consolidated complaint in Cases 33–CA–015780
and 33–CA–015781, which alleged that, subsequent to
the settlement agreements, the Respondents further vio-
lated Section 8(a)(5) and (1) by restricting the length of
bargaining sessions, failing and refusing to provide re-
quested information to the Union, dealing directly with
Union-represented employees at Camelot, making unilat-
eral changes to employees’ terms and conditions of em-
ployment without notice to the Union or an opportunity
to bargain,3 and discharging Camelot employee Kathy
Rhodes based on a unilaterally implemented attendance
policy. On June 18, 2009, the General Counsel moved to
reopen the record, set aside the settlement agreements,
and consolidate the cases covered by those settlements
with Cases 33–CA–015780 and 33–CA–015781. The
judge granted the General Counsel’s motion. In an Au-
gust 11, 2009 amendment to the consolidated complaint,
the General Counsel requested the relief that is the sub-
ject of the Respondents’ exceptions.
2. Negotiation expenses
The Respondents do not challenge the judge’s finding
that they committed the numerous and serious violations
of Section 8(a)(5) and (1) alleged in the consolidated
complaint. Nor do they contest the judge’s finding that

3 These alleged 8(a)(5) allegations included, at Galesburg, the Re-
spondent’s reduction of hours for housekeeping and laundry employees
and the extension of the probationary period for some employees. At
Camelot, the unilateral change allegations included implementation of a
new attendance policy, stricter enforcement of that policy, and the grant
of incentive wage increases to some unit employees. Both Respondents
were additionally alleged to have unilaterally changed their employees’
health insurance carrier.
CAMELOT TERRACE

1935
Lerner’s conduct as the Respondents’ negotiator for the
Galesburg and Camelot units displayed “nothing but con-
tempt for the [bargaining] process” and a willingness to
violate the law in order to frustrate the Union’s efforts to
represent employees in both units. The judge’s findings
concerning the Respondents’ violations of the Act amply
support his recommended Order that the Respondents
reimburse the Union for its negotiation expenses.
As the judge found and the record makes plain, Lerner
and Director of Operations Deborah Kipp viewed bar-
gaining with the Union as an interference with their nor-
mal work. Therefore, Lerner assiduously sought to re-
strict the dates and times when the parties met to negoti-
ate, consistently rejecting the Union’s requests to sched-
ule more frequent and longer sessions. As a result, the
parties held only 9 bargaining sessions for Galesburg and
12 for Camelot, between January and September 2008.
Moreover, Lerner refused to schedule more than one
session at a time, as the Union also repeatedly requested.
Rather, he insisted that the parties, at the end of each
meeting, schedule only the next session, a process that
caused delays due to previous commitments. At one
point in the negotiations, Lerner declared that he would
only negotiate during one afternoon every 2 weeks. Fur-
ther illustrating his disdain for both the Union and his
bargaining obligation, Lerner informed the Union on at
least three occasions that he was only available to meet
on dates and at times when he already knew that the Un-
ion’s representatives could not be present. On other oc-
casions, Lerner canceled meetings the day before they
were scheduled to occur, citing as reasons that his son
had become engaged and that his car was in the shop for
repair.
The time limitations that Lerner placed on bargaining
sessions only exacerbated the impediments caused by his
restrictions as to dates and frequency. Despite the Un-
ion’s repeated requests for full-day negotiations, Lerner
was adamant that they be scheduled for 3 to 4 hours. In
his view, his available time for bargaining on a particular
day was reduced by the driving time to and from the fa-
cility, his performance of his regular responsibilities, and
preparation for the session. In fact, bargaining for both
facilities totaled less than 60 hours during the period of
January–September 2008, an average of 3 hours per ses-
sion, with no meeting exceeding 4 hours. Even after
entering into the settlement agreements requiring bar-
gaining for a minimum of 20 hours per month and 5
hours per session for each facility, the Respondents
failed to satisfy either obligation for Galesburg or Came-
lot for any month or session during the entire period of
December 2008–May 2009 covered by the settlement
agreements. Rather, the sessions typically ended prema-
turely because the Respondents refused to answer the
Union’s questions or offer proposals, rendering further
bargaining impossible.
Lerner also exhibited his contempt for bargaining and
prolonged the process by abruptly ending negotiating
sessions. On July 22, 2008, Union Chief Negotiator
Ronald Neimark was not present and Julie Kwiek, the
Union’s director of collective bargaining and representa-
tion, served in that role. Kwiek complained to Lerner
about his refusing to meet weekly and reneging on
agreed-upon contract provisions. Lerner called Kwiek a
liar, and Kwiek lost her temper. After bargaining for an
additional 10 minutes, the Respondents’ negotiators left
the room only to return and inform the Union that the
session was over, just 30 to 45 minutes after it had be-
gun. Similarly, the March 18, 2008 session began at 2
p.m., and at 4:10 p.m. the Respondents asked for a cau-
cus to review a proposal that the Union had revised to
include the Respondents’ changes. Ten minutes later,
Lerner informed the Union that they were not going to be
able to complete the review that day and that the meeting
was over. The most flagrant incident, however, occurred
at the April 30, 2008 session. Respondents’ negotiator
Deborah Kipp had to leave early for a medical appoint-
ment, and Lerner said that he had to get something for
her from his car. Lerner never returned, leaving the Un-
ion negotiators waiting until they realized that he had
abandoned the meeting. That session, which lasted 2
hours and 15 minutes, was the only meeting between the
parties that month.
The Respondents’ bad-faith conduct at the bargaining
table precluded any progress toward reaching agree-
ments. On numerous occasions, Lerner reneged on or
withdrew from tentative agreements, forcing the Union
to renegotiate subjects on which agreement previously
had been reached, often after lengthy discussion. At the
hearing, Lerner neither denied this conduct nor asserted
any good cause for it. In fact, the judge found that Ler-
ner and Kipp were “lying under oath” when they testified
that the parties had agreed that tentative agreements
would be nonbinding. Moreover, the Respondents, after
agreeing that tentative agreements would apply to both
facilities, reversed course at a later session and insisted
that the tentative agreements pertained only to Gales-
burg. This tactic not only protracted the parties’ bargain-
ing generally; it specifically delayed their negotiation of
economic terms, which, as detailed below, the Respond-
ents refused to discuss until non-economic matters were
resolved.
On May 7, 2008, the Union attempted to provide the
Respondents a copy of its first economic proposal, but
Lerner refused even to accept the document, saying that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1936
he would not consider economic matters until the parties
completed bargaining over noneconomic terms. Over the
Union’s objections, the Respondents continued this re-
fusal until the August 14, 2008 session, at which Kipp
read to the union representatives a list of issues that in-
cluded economic terms and the parties began talking
about the economic package. In subsequent meetings,
however, the Respondents presented additional non-
economic proposals, including on topics already dis-
cussed or agreed to, and Lerner stated that he would con-
tinue to do so. Moreover, Lerner refused to provide to
the Union requested information that he viewed as per-
taining to economic subjects until he was ready to dis-
cuss those topics.4
Even after the settlement agreements, the Respondents
persisted in refusing to provide economic and other re-
quested information relevant and necessary to the Un-
ion’s role as exclusive representative of unit employees.
The information requested by the Union and denied by
the Respondents included: proof that background checks
had been performed for Galesburg certified nursing as-
sistants (CNAs), in order to evaluate Lerner’s assertion
that he was able to find sufficient qualified employees at
the current wage rate; attendance information for Gales-
burg employees; patient census information for both fa-
cilities; and the personnel file of discharged employee
Kathy Rhodes. The Respondents’ refusals to provide
this information severely impeded the Union’s prepara-
tion for bargaining, and Respondent Camelot’s refusal to
provide Rhodes’ personnel file hindered its ability to
represent Rhodes by evaluating the basis for her dis-
charge.
While the parties were engaged in negotiations, the
Respondents also blatantly circumvented the bargaining
process and disregarded their statutory bargaining obliga-
tion by unilaterally implementing numerous changes in
the employees’ terms and conditions of employment and
engaging in direct dealings with employees. During the
period of December 2008–March 2009, Respondent
Galesburg reduced the hours of its housekeeping and
laundry employees; increased the length of the proba-
tionary period for certain returning employees; and
changed the health insurance carrier. During this same
period, Respondent Camelot similarly changed its em-
ployees’ health insurance carrier; granted incentive raises

4 As further support for his findings of bad faith, the judge cited the
patent unreasonableness of the Respondents’ proposals, including that
the Union be prohibited from leafleting within 5000 feet of the Re-
spondents’ facilities and from organizing the Respondents’ clerical,
professional, or licensed or degreed employees, and that the Respond-
ents be permitted to resolve grievances with employees without the
Union’s involvement.
to certain employees; implemented a new attendance
policy; began more strictly enforcing that policy; and
discharged employee Rhodes under its new policy. Ler-
ner defended his unilateral actions, and perhaps revealed
his purpose in obstructing negotiations, when he baldly
told Neimark that, as long as no contract was in place, he
could do what he wanted. Administrator Marna Ander-
son admitted that she dealt directly with unit employees
by polling them concerning the selection of a health in-
surance carrier at a time when the parties were negotiat-
ing initial agreements that would cover that subject.
In Frontier Hotel & Casino,5 the Board held that

[i]n cases of unusually aggravated misconduct . . .
where it may fairly be said that a respondent’s substan-
tial unfair labor practices have infected the core of a
bargaining process to such an extent that their “effects
cannot be eliminated by the application of traditional
remedies,” NLRB v. Gissel Packing Co., 395 U.S. 575,
614 (1969), citing NLRB v. Logan Packing Co., 386
F.2d 562, 570 (4th Cir. 1967), an order requiring the re-
spondent to reimburse the charging party for negotia-
tion expenses is warranted both to make the charging
party whole for the resources that were wasted because
of the unlawful conduct, and to restore the economic
strength that is necessary to ensure a return to the status
quo ante at the bargaining table. . . . [T]his approach
reflects the direct causal relationship between the re-
spondent’s actions in bargaining and the charging par-
ty’s losses.

Relying on Frontier Hotel, the Board in Teamsters Lo-
cal 122 (August A. Busch & Co.)6 reversed the judge sua
sponte and ordered that the respondent union reimburse
the employer for financial losses incurred as a direct re-
sult of the union’s conduct in bargaining. The Board
found that the union had refused to bargain at reasonable
times and for reasonable periods of time, failed to confer
in good faith about wages, hours, and other terms and
conditions of employment, and refused to provide the
employer with requested information that was relevant
and necessary for bargaining, in an effort to pressure the
employer to sell the facility to another employer.
Such a remedy is also warranted here. The many
egregious unfair labor practices found by the judge and
not contested by the Respondents manifest an intent to
waste the Union’s time and resources and to avoid reach-
ing agreement. The Respondents employed a wide varie-
ty of overt tactics in this endeavor, both before and after

5 318 NLRB 857, 859 (1995), enfd. in part sub nom. Unbelievable,
Inc. v. NLRB, 118 F.3d 795 (D.C. Cir. 1997).
6 334 NLRB 1190 (2001).
CAMELOT TERRACE

1937
executing settlement agreements establishing firm bar-
gaining requirements. If they could not evade bargaining
altogether by obstructing the scheduling of sessions, they
forestalled progress toward agreement by minimizing the
length of the sessions, reneging on tentative agreements
without good cause, breaching procedural agreements
that agreed-upon terms would apply to both locations,
and refusing to discuss economic subjects or furnish rel-
evant requested information.
The Respondents’ conduct away from the bargaining
table further impeded agreement. Unilateral changes
concerning wages, hours, benefits, and other important
terms and conditions of employment, as well as direct
dealings with unit employees, tainted the parties’ rela-
tionship and would predictably undermine both the Un-
ion’s leverage in bargaining and its support among em-
ployees.
Under all of these circumstances, we find, as did the
judge, that the Respondents’ aggravated unlawful con-
duct “infected the core” of the bargaining process. Their
numerous instances of overt and deliberate bad-faith
conduct directly caused the Union to waste considerable
resources on protracted and futile bargaining. Further,
the Respondents’ violations of the Act deprived the Un-
ion of any real opportunity to achieve contracts that
would be acceptable to unit employees; in fact, an
agreement eventually reached for the Galesburg facility
was not ratified.7 In these circumstances, the Board’s
traditional remedies are insufficient to eliminate the dele-
terious effects of the Respondents’ conduct. Only by
ordering the reimbursement of the Union’s negotiating
expenses can the Board reasonably restore the Union’s
previous financial strength and consequent ability to car-

7 We reject Respondent Galesburg’s assertion that the Union’s
presentation of an agreement to its employees for a ratification vote
bars a finding that the Respondent engaged in egregious conduct that
would justify reimbursement of negotiating expenses. Neimark testi-
fied that he agreed to submit the agreement to a vote because the wage
increase provided was 10 cents above the upcoming increase in the
minimum wage, and he thought that “[i]f ever there was a time that
[employees] would agree to what Mr. Lerner was proposing, this was
the time.” Neimark added that he “decided to take it forward because .
. . Mr. Lerner had been so evasive in his bargaining that it would—we
weren’t going to get it any further” and “so that the union could live to
fight another day.” Based on this evidence, we find that the Union
presented the agreement for a ratification vote despite its view that the
Respondents had engaged in flagrant and pervasive bad-faith conduct.
In short, capitulation in the face of protracted, unlawful conduct does
not render the conduct lawful. Henry I. Siegel Co. v. NLRB, 340 F.2d
309 (1965) (“But when the issue has been pressed throughout, the party
unable to force the other to bargain . . . does not ‘waive’ a completed
refusal to bargain simply by signing up for the best it can get. It would
seriously contravene the basic objective of industrial peace to place
such a party in the predicament where it could make a valid charge of
an unfair labor practice only if it forewent a contract altogether.”).
ry out effectively its responsibilities as the employees’
representative. Accordingly, we adopt the judge’s rec-
ommendation to order this reimbursement remedy.
3. Litigation expenses
We also adopt, for the reasons discussed below, the
judge’s recommendation that the Respondents be re-
quired to reimburse the General Counsel and the Union
for their costs and expenses incurred in the investigation,
preparation, and litigation of Cases 33–CA–015780 and
33–CA–015781 before the judge and the Board.8 Specif-
ically, we find that the Respondents’ abrogation of their
settlement agreements, defiance of their legal obligation
to bargain, refusal to resolve Cases 33–CA–015780 and
33–CA–015781 short of trial, and reliance on transpar-
ently nonmeritorious defenses caused the General Coun-
sel and the Union to expend resources needlessly and
burdened the Board’s processes unnecessarily.9
As we have held previously, the Board has inherent
authority to control its own proceedings, including the
authority to award litigation expenses through the appli-
cation of the “bad-faith” exception to the American
Rule.10 Under the American Rule, parties are generally
responsible for their own litigation expenses. The bad-
faith exception to the rule, however, permits the reim-
bursement of litigation expenses when a party “has acted
in bad faith, vexatiously, wantonly, or for oppressive
reasons.”11 The requisite bad faith may be demonstrated
in the unsuccessful party’s actions giving rise to the liti-
gation, in the conduct of the litigation itself, or in both.12
As the Supreme Court has explained, the Federal
courts possess the authority to impose sanctions for con-
duct that abuses the judicial process; such authority ema-
nates from the courts’ “inherent authority” to preserve
the integrity of their proceedings and manage their own
affairs. Chambers v. NASCO, Inc., 501 U.S. 32, 44–46
(1991). See, e.g., Link v. Wabash R. Co., 370 U.S. 626
(1962) (upholding district court’s dismissal of action for
failure to prosecute). As the Court stated in Chambers:

8 Although the judge also recommended ordering the reimbursement
of litigation expenses in the event that this proceeding is reviewed by a
court of appeals, we leave that determination to the discretion of the
court.
9 Care Manor of Farmington, 318 NLRB 330, 330–331 (1995).
10 See Teamsters Local 122, supra at 1193; Alwin Mfg. Co., 326
NLRB 646 (1998), enfd. 192 F.3d 133 (D.C. Cir. 1999). In view of this
holding, we find it unnecessary to pass on the Respondent’s argument
that the Board’s remedial authority under Sec. 10(c) of the Act does not
encompass the award of litigation expenses.
11 Id. at 864, quoting F. D. Rich Co. v. Industrial Lumber Co., 417
U.S. 116, 129 (1974).
12 Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1938
It has long been understood that “[c]ertain implied
powers must necessarily result to our Courts of justice
from the nature of their institution,” powers “which
cannot be dispensed with in a Court, because they are
necessary to the exercise of all others.” United States v.
Hudson, 7 Cranch 32, 34, 3 L.Ed. 259 (1812); see also
Roadway Express, Inc. v. Piper, 447 U.S. 752, 764,
100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980) (citing
Hudson). For this reason, “Courts of justice are univer-
sally acknowledged to be vested, by their very creation,
with power to impose silence, respect, and decorum, in
their presence, and submission to their lawful man-
dates.” Anderson v. Dunn, 6 Wheat. 204, 227, 5 L.Ed.
242 (1821); see also Ex parte Robinson, 19 Wall. 505,
510, 22 L.Ed. 205 (1874). These powers are “governed
not by rule or statute but by the control necessarily
vested in courts to manage their own affairs so as to
achieve the orderly and expeditious disposition of cas-
es.” Link v. Wabash R. Co., 370 U.S. 626, 630–631, 82
S.Ct. 1386, 1388–1389, 8 L.Ed.2d 734 (1962).

501 U.S. at 43. Thus, the Courts’ imposition of attorneys’
fees as a sanction for a party’s bad-faith conduct represents
an appropriate exercise of the courts’ inherent authority, as
it serves the purpose, inter alia, of “vindicating judicial au-
thority.” Id. at 46 (citation omitted).
As distinguished from those of the Federal courts, the
powers of administrative agencies are derived solely
from statutory authority expressly granted or necessarily
implied. See, e.g., Arrow-Hart & Hegeman Electric Co.
v. FTC, 291 U.S. 587, 598 (1934); B.B. & V.B. v. Taco-
ma School District, 2009 WL 159204, slip op. at *4
(W.D. Wash 2009). Nevertheless, the courts have recog-
nized as a general matter that administrative agencies
possess inherent power to protect the integrity of their
administrative processes. See, e.g., Checkosky v. SEC,
23 F.3d 452, 455–456 (D.C. Cir. 1994) (upholding agen-
cy authority to protect the integrity of its processes by
adopting a rule for the purpose of policing the conduct of
practitioners before it); Touche Ross & Co. v. SEC, 609
F.2d 570, 581–582 (2d Cir. 1979) (same); see also Poly-
doroff v. Interstate Commerce Commission, 773 F.2d
372, 375 (D.C. Cir. 1985) (“Whether agency or court,
any institution engaging in the adjudicative process must
have the power to police the professionals who practice
before it.”); Alberta Gas Chemicals, LTD v. Celanese
Corp., 650 F.2d 9, 12–13 (2d Cir. 1981) (holding that
agency had inherent authority to reconsider its earlier
decision—particularly in light of allegations of fraud
perpetrated against the agency in that proceeding—based
on its inherent power to protect the integrity of its pro-
ceedings).
Moreover, although the Board is an administrative
agency, it functions as a quasi-judicial body.13 In unfair
labor practice proceedings, the Board’s administrative
law judges conduct trials similar to those conducted by
judges in Federal district courts. Indeed, the statute itself
provides that unfair labor practice proceedings are to “be
conducted in accordance with the rules of evidence ap-
plicable in the district courts of the United States under
the rules of civil procedure for the district courts.” 29
U.S.C. § 160(b). Accordingly, it is manifest that, similar
to their colleagues in the judiciary, the Board’s adminis-
trative law judges must possess the authority to control,
and to preserve the integrity of, their proceedings. In-
deed, in light of the Act’s express grant of power to the
Board to conduct trials, it cannot be gainsaid that the
authority to preserve the integrity of those trials is “nec-
essarily implied” in the grant.14
Our dissenting colleague does not cite to any authority
holding that the Board (or other adjudicative agencies)
lacks the power to award litigation expenses as a func-
tion of the inherent authority to preserve the integrity of
its processes. Indeed, the only Federal court of appeals
that has considered whether the Board possesses such
authority has merely declined to resolve the issue. See
Alwin Mfg. Co. v. NLRB, 192 F.3d 133, 143 fn. 13 (D.C.
Cir. 1999) (finding it unnecessary to determine whether
the Board has inherent authority to order payment of
litigation expenses under bad-faith exception to the
American Rule, but stating that Board order was not
“obviously ultra vires”); Unbelievable, Inc. v. NLRB,
118 F.3d 795, 800 fn. * (D.C. Cir. 1997) (finding it un-
necessary to decide issue). Further, the court’s decision

13 See NLRB v. Beech-Nut Life Savers, Inc., 406 F.2d 253, 257 (2d
Cir. 1968); NLRB v. J. S. Popper, Inc., 113 F.2d 602, 603 (3d Cir.
1940).
14 Although our dissenting colleague makes much of the fact that the
Board, as distinguished from art. III courts, is comprised of political
appointees, he fails to explain how this distinction renders the Board
unfit or incapable of properly exercising the inherent authority to pre-
serve the integrity of its proceedings through the imposition of litiga-
tion expenses. Indeed, in our view, the Board and its administrative
law judges are no less capable of recognizing an abuse of the Board’s
processes than is a judge appointed to an art. III court. Moreover, to
the extent that our colleague suggests that such authority is more sus-
ceptible to disparate application or abuse in the hands of political ap-
pointees, we note as an initial matter that the Board’s administrative
law judges—who would make the initial determination to award litiga-
tion expenses based on an abuse of the Board’s processes—are career
civil servants possessing job tenure that is not altogether dissimilar
from the lifetime tenure afforded Federal judges. In addition, and more
significantly, our colleague’s suggestion in that regard is without foun-
dation; there is no basis for the dissent’s apparent assumption that the
Board would be more likely to abuse the inherent authority to award
litigation expenses to protect against the abuse of its processes than it
would any other power at its disposal, whether express or necessarily
implied.
CAMELOT TERRACE

1939
in Electrical Workers v. NLRB, 502 F.2d 349 (D.C. Cir.
1974), cited by our dissenting colleague, has no bearing
on this issue, as the court there merely upheld the
Board’s authority under Section 10(c) to award litigation
expenses, based on then-extant precedent; indeed, the
excerpt quoted by our colleague is taken from Judge
MacKinnon’s dissenting footnote, in which none of the
other panel members joined. Accordingly, we adhere to
and rely on our extant precedent in awarding litigation
expenses to the Union and the General Counsel here.
The Board has ordered reimbursement of litigation ex-
penses in cases presenting striking similarities to the Re-
spondents’ conduct here. In Teamsters Local 122, supra,
the Board relied on the union’s bad faith in bargaining as
well as its litigation conduct in ordering reimbursement
of the employer’s and the General Counsel’s litigation
costs pertaining to the 8(b)(3) allegations of the com-
plaint. The Board found that the union purposely de-
layed negotiations in violation of Section 8(b)(3) by in-
sisting on separate bargaining for the two units involved,
limiting the number and length of sessions, using its
counsel to engage in protracted negotiations involving
bargaining over every sentence, making onerous infor-
mation requests, and refusing to provide information
requested by the employer. The Board further found that
the union’s litigation conduct, as the judge observed,
“made the Board into an instrument of its own unlawful
conduct.” Id. at 1194. The union not only failed to pre-
sent any defense to the 8(b)(3) allegations in the com-
plaint, but also undertook to prolong the proceeding
through an “abusive” 10-day cross-examination of the
employer’s general manager, using a detailed cross-
examination approach reminiscent of its bargaining be-
havior.
Similarly, in Frontier Hotel, the Board applied the ex-
ception in ordering the respondent to reimburse the
charging parties and the General Counsel for their litiga-
tion expenses based on the bad faith shown in its egre-
gious surface bargaining and its adherence to frivolous
defenses presented through the transparently false testi-
mony of the individual who served as its chief negotiator
and counsel.15 In awarding reimbursement of litigation
expenses in Alwin Mfg., supra, the Board relied on both
the respondent’s bad-faith conduct, including its failure
to remedy previous unfair labor practices and its mainte-
nance of unilaterally implemented terms and conditions
of employment, and its further bad faith in forcing the

15 Frontier Hotel, supra at 864.
General Counsel and the Union to litigate issues that had
largely been adjudicated already.16
In this proceeding, as in the above cases, we find am-
ple proof that the Respondents have displayed bad faith
both in their underlying unlawful conduct and in their
conduct related to the litigation.
The Respondents’ pervasive bad faith in bargaining is
summarized above and detailed in the judge’s decision.
From the start, the Respondents, through Lerner, turned
collective bargaining into a cat-and-mouse game of evad-
ing bargaining, abruptly ending negotiating sessions, and
reneging on tentative agreements, thus forcing the Union
to rehash subjects previously resolved and obstructing
discussion of economic terms. In support of his finding
of bad faith, the judge also noted that some of the Re-
spondents’ proposals were blatantly unreasonable, such
as a prohibition on leafleting within almost a mile of the
facilities. The Respondents’ defiance of its bargaining
obligation compelled the Union to resort to Board pro-
ceedings in order to vindicate employees’ rights under
the Act.
The initial unfair labor practice proceedings, however,
failed to deter the Respondents’ pattern of bad faith.
After the close of the hearing, the parties appeared to
have resolved the matter by entering into settlement
agreements that prescribed the minimum length of bar-
gaining sessions and their frequency. The Respondents
immediately reneged on those commitments, failing to
satisfy the requirements of the settlement agreements for
even a single session or month. Instead, the Respondents
persisted in bad faith and unlawful conduct, both at and
away from the bargaining table. Therefore, the judge
withdrew his approval of the settlement agreements, and
the consolidated unfair labor practice proceeding re-
sumed with the additional 8(a)(5) allegations in Cases
33–CA–015780 and 33–CA–015781. It is indisputable

16 The Board has also awarded litigation expenses under the bad-
faith exception based solely on the assertion of frivolous defenses or
other extreme bad-faith conduct related to the litigation. See, e.g., Lake
Holiday Manor, 325 NLRB 469 (1998) (Board ordered reimbursement
of litigation costs when respondent repeatedly reneged on settlement
agreements and made last-minute attempts to delay the proceedings in
contravention of the judge’s instructions); 675 West End Owners Corp.,
345 NLRB 324 (2005) (respondent violated the judge’s instructions and
abused the Board’s processes by serving subpoenas that had previously
been revoked and issuing subpoenas after the close of the hearing); cf.
Service Employees District 1199 (Staten Island University Hospital),
339 NLRB 1059 (2003) (no reimbursement of litigation expenses when
Board vote divided as to whether union organizer’s conduct toward
managers, supervisors, and guards violated Sec. 8(b)(1)(A)); Sunshine
Piping, 351 NLRB 1371 (2007) (no reimbursement when employer’s
alteration of attendance records was amenable to conflicting explana-
tions and did not necessarily demonstrate that defense was wantonly or
vexatiously asserted).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1940
that, had the Respondents complied with their obligations
under the agreements, the General Counsel and the Un-
ion would never have incurred the additional expense of
the resumed litigation.
The Respondents’ bad faith was equally evident in its
conduct during the hearing in this proceeding. Lerner,
the owner and president of the Respondents, served as
the Respondents’ chief negotiator, representative, and
key witness at the hearing. Because he participated in
the parties’ bargaining and personally engaged in the
conduct here found unlawful, Lerner possessed full
knowledge of the events at issue. Nonetheless, through-
out the hearing he presented testimony, personally and
through the Respondents’ other witnesses, that the judge
broadly discredited as replete with “contradictions, in-
consistencies, and outright lies under oath.” As a result,
the resources of the General Counsel and the Union were
squandered not only in the investigation of the additional
allegations, but in the preparation and conduct of the
resumed hearing, when the Respondents’ only expecta-
tion of success was based on their apparent hope that the
judge would not detect the obvious untrustworthiness of
their evidence. The bad-faith exception to the American
Rule protects litigants from the significant economic
consequences of such wanton misuse of legal processes
in support of a party’s unlawful objectives.
Accordingly, we adopt the judge’s Order that the Re-
spondents reimburse the General Counsel and the Union
for all costs and expenses incurred in the investigation,
preparation, and conduct of Cases 33–CA–015780 and
33–CA–015781 before the Board.
AMENDED CONCLUSIONS OF LAW
1. Respondent Camelot Terrace has been failing and
refusing to bargain in good faith with the exclusive col-
lective-bargaining representative of its employees in vio-
lation of Section 8(a)(5) and (1) and has thereby engaged
in unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act by: restricting
the dates for bargaining sessions; restricting the lengths
of bargaining sessions; repeatedly canceling and shorten-
ing scheduled bargaining sessions beyond its unreasona-
ble stated intention not to bargain for more than 4 hours
per session; reneging on or withdrawing from tentative
agreements without good cause; refusing to bargain over
economic subjects; and refusing to make economic pro-
posals.
2. Respondent Camelot Terrace has been failing and
refusing to bargain in good faith with the exclusive col-
lective-bargaining representative of its employees in vio-
lation of Section 8(a)(5) and (1) and has thereby engaged
in unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act by failing and
refusing to furnish the Union with census information
regarding its patient population and the personnel file of
employee Kathy Rhodes without Rhodes’ written author-
ization.
3. Respondent Camelot Terrace has been failing and
refusing to bargain in good faith with the exclusive col-
lective-bargaining representative of its employees in vio-
lation of Section 8(a)(5) and (1) and has thereby engaged
in unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act by: unilateral-
ly changing the employee health insurance carrier; giving
incentive raises to certain bargaining unit employees;
implementing a new attendance policy; more strictly
enforcing the attendance policy; and restricting the length
of bargaining sessions, without providing the Union prior
notice and the opportunity to bargain with respect to the
change of a mandatory subject of bargaining and its ef-
fects.
4. By discharging Kathy Rhodes pursuant to the new
more strictly enforced attendance policy, Respondent
Camelot Terrace has been failing and refusing to bargain
in good faith with the exclusive collective-bargaining
representative of its employees in violation of Section
8(a)(5) and (1) and has thereby engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. By bypassing the Union and dealing directly with
employees by polling them regarding a change in insur-
ance carrier, Respondent Camelot Terrace been failing
and refusing to bargain in good faith with the exclusive
collective-bargaining representative of its employees in
violation of Section 8(a)(5) and (1) and has thereby en-
gaged in unfair labor practices affecting commerce with-
in the meaning of Section 2(6) and (7) of the Act.
6. Respondent Galesburg Terrace has been failing and
refusing to bargain in good faith with the exclusive col-
lective-bargaining representative of its employees in vio-
lation of Section 8(a)(5) and (1) and has thereby engaged
in unfair labor practices within the meaning of Section
2(6) and (7) of the Act by: restricting the dates for bar-
gaining sessions; restricting the lengths of bargaining
sessions; repeatedly canceling and shortening scheduled
bargaining sessions beyond its unreasonable stated inten-
tion not to bargain for more than 4 hours per session;
reneging on or withdrawing from tentative agreements
without good cause; refusing to bargain over economic
subjects; and refusing to make economic proposals.
7. Respondent Galesburg Terrace has been failing and
refusing to bargain in good faith with the exclusive col-
lective-bargaining representative of its employees in vio-
lation of Section 8(a)(5) and (1) and has thereby engaged
in unfair labor practices within the meaning of Section
CAMELOT TERRACE

1941
2(6) and (7) of the Act by failing and refusing to furnish
the Union with requested information: proof that back-
ground checks had been performed for its certified nurs-
ing assistants, attendance information, and census infor-
mation regarding its patient population.
8. Respondent Galesburg Terrace has been failing and
refusing to bargain in good faith with the exclusive col-
lective-bargaining representative of its employees in vio-
lation of Section 8(a)(5) and (1) and has thereby engaged
in unfair labor practices within the meaning of Section
2(6) and (7) of the Act by: unilaterally reducing the hours
of its housekeeping and laundry employees; increasing
the length of the probationary period for certain returning
employees; changing the employee health insurance car-
rier; and restricting the length of bargaining sessions,
without providing the Union prior notice and the oppor-
tunity to bargain with respect to the change of a manda-
tory subject of bargaining and its effects.
AMENDED REMEDY
We amend the judge’s recommended remedy to pro-
vide that employee Kathy Rhodes is to be made whole
for any loss of earnings and other benefits suffered as a
result of her discharge. Backpay will be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289
(1959), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6
(2010), enf. denied on other grounds sub nom. Jackson
Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
In addition, having found that the Respondents made
unlawful unilateral changes to employees’ terms and
conditions of employment we shall require the Respond-
ents, to the extent requested by the Union, to rescind
those or any of those unilateral changes and to make the
unit employees whole for any loss of earnings and other
benefits attributable to their unlawful conduct. This
make-whole remedy shall be computed in accordance
with Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the
rate prescribed in New Horizons for the Retarded, supra,
compounded daily as prescribed in Kentucky River Medi-
cal Center, supra.
With respect to the 9-month extension of the certifica-
tion year at Camelot Terrace and the 6-month extension
at Galesburg Terrace, as ordered by the judge in accord-
ance with Mar-Jac Poultry Co., 136 NLRB 785 (1962),
we amend the remedy to clarify that these periods begin
on the dates when the Respondents begin to bargain in
good faith with the Union. We shall also modify the
remedy to provide for the posting of the notice in accord
with J. Picini Flooring, 356 NLRB 11 (2010).17
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that
A. Respondent Camelot Terrace, Streator, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
the Union over terms and conditions of employment for
bargaining unit employees by: restricting the dates for
bargaining sessions; restricting the lengths of bargaining
sessions; repeatedly canceling and shortening scheduled
bargaining sessions beyond its unreasonable stated inten-
tion not to bargain for more than 4 hours per session;
reneging on or withdrawing from tentative agreements
without good cause; refusing to bargain over economic
subjects; and refusing to make economic proposals. The
appropriate bargaining unit is:

All full-time and regular part-time certified nurses as-
sistants (CNAs), dietary employees, cooks, housekeep-
ing employees, laundry employees, unit aides (assis-
tants), activity aides, medical records, and rehab aides
employed by the Employer at its facility currently lo-
cated at 516 W. Frech St., Streator, Illinois; but exclud-
ing all other employees, department heads, casual em-
ployees, LPN’s, RN’s, managers, maintenance work-
ers, office clerical employees and guards, professional
employees and supervisors as defined in the National
Labor Relations Act.

(b) Failing and refusing to furnish the Union with re-
quested census information regarding its patient popula-
tion and the personnel file of employee Kathy Rhodes
without Rhodes’ written authorization.
(c) Without providing the Union prior notice and the
opportunity to bargain with respect to the change of a
mandatory subject of bargaining and its effects, unilater-
ally: changing the employee health insurance carrier;
giving incentive raises to certain bargaining unit employ-
ees; implementing a new attendance policy; more strictly
enforcing the attendance policy; and restricting the length
of bargaining sessions.
(d) Discharging Kathy Rhodes pursuant to the new
more strictly enforced attendance policy, without provid-
ing the Union prior notice and the opportunity to bargain

17 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, Member Hayes would not require electronic distribution of the
notice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1942
with respect to the change of a mandatory subject of bar-
gaining and its effects.
(e) Bypassing the Union and dealing directly with em-
ployees by polling them regarding a change in insurance
carrier.
(f) 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) Bargain in good faith with the Union, on request, as
the recognized bargaining representative of the employ-
ees in the above appropriate unit concerning terms and
conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
(b) Bargain in good faith with the Union not less than
twenty-four (24) hours per month, at least six (6) hours
per session for this facility or, in the alternative, twenty-
four (24) hours per month, at least six (6) hours per ses-
sion for the same contract(s) for both the Camelot Ter-
race and the Galesburg Terrace facilities, or another
schedule mutually agreed upon by the parties, until a
complete collective-bargaining agreement or a bona fide
impasse is reached.
(c) Reimburse the National Labor Relations Board (the
Board) and the Union for all costs and expenses incurred
in the investigation, preparation, and conduct of Case
33–CA–015781 before the Board.
(d) Reimburse the Union for all costs and expenses in-
curred in collective-bargaining negotiations from January
2008 to the last bargaining session in connection with
Cases 33–CA–015781, 33–CA–015584, and 33–CA–
015669.
(e) Furnish to the Union in a timely manner the infor-
mation that the Union requested: census information re-
garding its patient population and Rhodes’ personnel file
without requiring her written authorization.
(f) On request by the Union, and to the extent sought
by the Union, rescind the changes in terms and condi-
tions of employment described above, and restore the
status quo ante.
(g) Make unit employees whole for any loss of earn-
ings and other benefits suffered as a result of the Re-
spondent’s unilateral changes, in the manner set forth in
the remedy section of the decision, as amended.
(h) Within 14 days from the date of this Order, offer
Kathy Rhodes full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(i) Make Kathy Rhodes whole for any loss of earnings
and other benefits suffered as a result of her discharge, in
the manner set forth in the remedy section of the deci-
sion, as amended.
(j) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge,
and within 3 days thereafter notify the employee in writ-
ing that this has been done and that the discharge will not
be used against her in any way.
(k) 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.
(l) Within 14 days after service by the Region, post at
its facility in Streator, Illinois, copies of the attached no-
tice marked “Appendix A.”18 Copies of the notice, on
forms provided by the Regional Director for Subregion
33, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since January 2008.
(m) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Subregion
attesting to the steps that the Respondent has taken to
comply.
B. Respondent Galesburg Terrace, Galesburg, Illinois,
its officers, agents, successors, and assigns, shall

18 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.”
CAMELOT TERRACE

1943
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
the Union over terms and conditions of employment for
bargaining unit employees by: restricting the dates for
bargaining sessions; restricting the lengths of bargaining
sessions; repeatedly canceling and shortening scheduled
bargaining sessions beyond its unreasonable stated inten-
tion not to bargain for more than 4 hours per session;
reneging on or withdrawing from tentative agreements
without good cause; refusing to bargain over economic
subjects; and refusing to make economic proposals. The
appropriate bargaining unit is:

All full-time and regular part-time certified nurses as-
sistants, dietary aides and cooks, laundry aides, activity
aides, housekeeping, and social service aides, em-
ployed by the Employer at its Galesburg, Illinois facili-
ty; EXCLUDING office clerical employees, profes-
sional employees, guards, supervisors as defined in the
Act, registered nurses, licensed practical nurses, confi-
dential employees, casual employees, and all other em-
ployees.

(b) Failing and refusing to furnish the Union with in-
formation that the Union requested: proof that back-
ground checks had been performed for its certified nurs-
ing assistants, attendance information, and census infor-
mation regarding its patient population.
(c) Without providing the Union prior notice and the
opportunity to bargain with respect to the change of a
mandatory subject of bargaining and its effects, unilater-
ally: reducing the hours of its housekeeping and laundry
employees; increasing the length of the probationary
period for certain returning employees; changing the
employee health insurance carrier; and restricting the
length of bargaining sessions.
(e) 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) Bargain in good faith with the Union, on request, as
the recognized bargaining representative of the employ-
ees in the above appropriate unit concerning terms and
conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
(b) Bargain in good faith with the Union not less than
twenty-four (24) hours per month, at least six (6) hours
per session for this facility or, in the alternative, twenty-
four (24) hours per month, at least six (6) hours per ses-
sion for the same contract(s) for both the Galesburg Ter-
race and the Camelot Terrace facilities, or another sched-
ule mutually agreed upon by the parties, until a complete
collective-bargaining agreement or a bona fide impasse is
reached.
(c) Reimburse the National Labor Relations Board (the
Board) and the Union for all costs and expenses incurred
in the investigation, preparation, and conduct of Case
33–CA–015780 before the Board.
(d) Reimburse the Union for all costs and expenses in-
curred in collective-bargaining negotiations from January
2008 to the last bargaining session in connection with
Cases 33–CA–015780, 33–CA–015587, and 33–CA–
015670.
(e) Furnish to the Union in a timely manner the infor-
mation that the Union requested: proof that background
checks had been performed for its certified nursing assis-
tants, attendance information, and census information
regarding its patient population.
(f) On request by the Union, and to the extent sought
by the Union, rescind the changes in terms and condi-
tions of employment described above, and restore the
status quo ante.
(g) Make unit employees whole for any loss of earn-
ings and other benefits suffered as a result of the Re-
spondent’s unilateral changes, in the manner set forth in
the remedy section of the decision, as amended.
(h) 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.
(i) Within 14 days after service by the Region, post at
its facility in Galesburg, Illinois, copies of the attached
notice marked “Appendix B.”19 Copies of the notice, on
forms provided by the Regional Director for Subregion
33, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during

19 See fn. 18, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1944
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since January 2008.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Subregion
attesting to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the settlement agreements
that the Union and the Respondents entered into on De-
cember 4, 2008, concerning Cases 33–CA–015584, 33–
CA–015587, 33–CA–015669, and 33–CA–015670 are
set aside.

MEMBER HAYES, dissenting in part.

“The courts are interpreters, not creators, of legal rights
to recover and if there is a need for recovery of attor-
ney’s fees to effectuate the policies of the Act here in-
volved, that need should in my judgment be met by
Congress, not by this Court.”1

Justice Black’s statement, although referring to the Se-
curities Exchange Act of 1934, applies with equal force
to the Board’s authority under the National Labor Rela-
tions Act (NLRA). As the D.C. Circuit put it succinctly
and definitively, because the American Rule, pursuant to
which parties bear their own litigation expenses, is
“‘deeply rooted in our history and congressional poli-
cy,’” an agency must establish “clear [statutory] support”
for its claim of congressional authorization to impose fee
awards, either to a party or the agency itself.2 The D.C.
Circuit, in accordance with controlling Supreme Court
precedent, has held, and I agree, that no such support can
be found in either the text of the Act or its legislative
history.3 Consequently, the Board lacks the authority
under Section 10(c) to impose a fee-shifting order.4

1 Mills v. Electric Auto-Lite, 396 U.S. 375, 397 (1970) (Black, J.,
concurring in part and dissenting in part).
2 Unbelievable, Inc. v. NLRB, 118 F.3d 795, 806 (D.C. Cir. 1997),
citing Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S.
240, 271 (1975).
3 Id. (“Finding no such support in the terms or the legislative history
of Sec. 10(c) of the National Labor Relations Act, we conclude that the
Board lacks [the] authority . . . to shift[] responsibility for attorney’s
fees in an agency proceeding”), citing Alyeska, supra at 272; Summit
Valley Industries, Inc. v. Carpenters, 456 U.S. 717, 726 (1982) (hold-
ing with respect to Sec. 303 of the Labor Management Relations Act,
29 U.S.C. § 187, that a court may award attorney’s fees only when
expressly authorized by the legislature, and “[i]n the absence of clear
support for [that] construction in the language or legislative history of
Moreover, because the Agency is a creature of statute,
and not an article III court, its remedial powers are lim-
ited to those established by Congress. Therefore, we are
not free to invoke principles of “inherent authority” in
order to unilaterally vest the Board with powers beyond
those contemplated by the legislature. Indeed, while my
colleagues rely on some Board precedent imposing fee
awards pursuant to the “bad faith” exception to the
American Rule, they cite not a single court decision, post
Alyeska, in which any agency order shifting responsibil-
ity for attorney fees based upon a theory of “inherent
authority” has been upheld. Because the decision wheth-
er to shift fees is beyond our delegated purview and ex-
pertise, prior Board decisions on the issue are entitled to
no deference.5 In my view, if we plainly lack the statuto-
ry authority to shift fees, whether for deterrent or make
whole purposes, no reasonable construction of the Act
would permit us, as political appointees not vested with
life tenure, to invoke the inherent powers of article III
courts to award fees whenever a majority of the Board
(which may or may not consist of members confirmed
with the advice and consent of the Senate) believes a
litigant has acted in bad faith.
Almost 40 years ago, Judge George MacKinnon stated
that:

Absent statutory authority, courts may, in the ex-
ercise of their inherent equitable powers, award at-
torney fees in certain carefully circumscribed situa-
tions where “overriding considerations indicate the
need for such a recovery.” Hall v. Cole, supra at 4–
5. An administrative agency possesses no such in-
herent equitable power, however, for it is a creature
of the statute that brought it into existence; it has no
powers except those specifically conferred upon it
by statute. Electrical Workers v. NLRB, 502 F.2d
349, 352–353 fn. * (D.C. Cir. 1974).

My colleagues do not dispute this observation and
acknowledge that “[a]s distinguished from those of federal

Sec. 303 we decline to adopt such a broad exception to the American
Rule.”).
4 Id.; accord: Quick v. NLRB, 245 F.3d 231, 256–257 (3d Cir. 2001)
(“However, absent ‘clear support’ for an award of attorneys fees, either
in the language or legislative history of the [NLRA], we cannot infer
congressional intent to override the historic presumption against an
award of attorney’s fees in the circumstances here.”), citing Summit
Valley Industries, Inc., supra, 456 U.S. at 726.
5 See Unbelievable, Inc., supra, 118 F.3d at 805 (“[T]he Board strays
from its area of expertise when it determines whether fee shifting is
appropriate in a particular case,” and such decisions are not entitled to
judicial deference), citing Scheduled Airlines Traffic Offices, Inc. v.
Department of Defense, 87 F.3d 1356, 1361 (D.C. Cir. 1996) (court
does not defer to agency decision in matter outside of agency’s exper-
tise).
CAMELOT TERRACE

1945
courts, the powers of administrative agencies are derived
solely from statutory authority expressly granted or neces-
sarily implied.” They nonetheless maintain that because the
Board functions as a “quasi-judicial body,” its administra-
tive law judges must possess the authority to control their
proceedings. In my colleagues’ view that authority must
extend to the award of litigation expenses, including attor-
neys fees, when a party has acted in bad faith in a Board
proceeding. I disagree.
First, my colleagues cite no judicial authority for their
position. Second, an administrative agency differs fun-
damentally from an article III court. We lack inherent
equitable powers, and while we have broad authority to
fashion remedies, and for that matter to control our own
proceedings,6 the confines of our authority are delimited
by our authorizing statute. As noted above, at least two
Federal courts of appeals have concluded that Section
10(c) does not authorize fee shifting, and have reiterated
the Supreme Court’s admonition that there must be
“clear support” in either the text or legislative history of
the authorizing statute to establish such power.7 That
should effectively end the inquiry. It makes no sense to
acknowledge that the broad grant of remedial authority to
fashion remedies under Section 10(c) fails to establish
the necessary “clear support,” but to then divine such
power from the vagaries of “inherent authority” vested in
article III courts—a subject matter on which we have
absolutely no expertise. In short, my colleagues’ award
of fees in the instant case exceeds our statutory authority,
trenches on the well established parameters of the Amer-
ican Rule, and raises the specter of the imposition of pu-
nitive sanctions for litigation conduct deemed by politi-
cal appointees, not article III judges, to constitute bad
faith.8 I therefore dissent.9

6 The Board and its administrative law judges certainly have alterna-
tive means to control our proceedings short of the post hoc imposition
of litigation costs in contravention of the American Rule. Among other
things, the judge may limit the scope of litigation, preclude evidence,
strike pleadings, draw adverse inferences from lack of party coopera-
tion, demand decorum, remove counsel or other persons from the hear-
ing for good cause, and report instances of attorney misconduct for
investigation.
7 In light of the Supreme Court’s requirement of this heightened
showing to permit fee shifting, the court cases cited by my colleagues
recognizing the “inherent authority” of administrative agencies to po-
lice professionals who appear before them are simply inapposite; none
of those cases dealt with awards of attorney’s fees.
8 My colleagues contend that they are just as fit and capable as art.
III judges of making fee-shifting awards, and that there is nothing in-
herent in their status as political appointees which undermines their
impartiality. This contention is irrelevant to the issue at hand. What
distinguishes an administrative agency from an art. III court is the fact
that our remedial authority is expressly limited by statute; as noted
herein, nothing in the Act demonstrates Congressional intent to vest the
Board with authority to overcome the American Rule. Likewise irrele-
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we 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 fail and refuse to bargain in good faith
with Service Employees International Union Healthcare
Illinois and Indiana (the Union) over your terms and
conditions of employment by restricting the dates for
bargaining sessions; restricting the lengths of bargaining
sessions; repeatedly canceling and shortening scheduled
bargaining sessions beyond our unreasonable stated in-
tention not to bargain for more than 4 hours per session;
reneging on or withdrawing from tentative agreements
without good cause; refusing to bargain over economic
subjects; and refusing to make economic proposals. The
appropriate bargaining unit is:

All full-time and regular part-time certified nurses as-
sistants (CNAs), dietary employees, cooks, housekeep-
ing employees, laundry employees, unit aides (assis-
tants), activity aides, medical records, and rehab aides
employed by the Employer at its facility currently lo-
cated at 516 W. Frech St., Streator, Illinois; but exclud-
ing all other employees, department heads, casual em-
ployees, LPN’s, RN’s, managers, maintenance work-
ers, office clerical employees and guards, professional
employees and supervisors as defined in the National
Labor Relations Act.

vant is the fact that our administrative law judges are career civil serv-
ants, as their remedial authority is also limited by statute and does not
encompass fee-shifting power. Moreover, they would not act as a
check on the Board’s political appointees in any event, as the Board can
and does impose remedies not first awarded by administrative law
judges.
9 Though I dissent from the award of attorney’s fees and litigation
expenses, I join my colleagues in finding that the Union should be
reimbursed for its negotiation expenses due to the Respondent’s failure
and refusal to bargain in good faith, a remedy long sanctioned by both
the Board and courts.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1946
WE WILL NOT fail and refuse to timely furnish the Un-
ion with census information regarding our patient popu-
lation or the personnel file of employee Kathy Rhodes
without her written authorization.
WE WILL NOT, without providing the Union prior notice
and the opportunity to bargain with respect to the change
of a mandatory subject of bargaining and its effects, uni-
laterally change your health insurance carrier; give incen-
tive raises to certain bargaining unit employees; imple-
ment a new attendance policy; more strictly enforce the
attendance policy; or restrict the length of bargaining
sessions.
WE WILL NOT discharge you pursuant to a unilateral
change in the terms and conditions of your employment.
WE WILL NOT bypass the Union and deal directly with
you by polling you regarding a change in a term and
condition of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and
conditions of employment for our employees in the
above bargaining unit.
WE WILL bargain in good faith with the Union not less
than twenty-four (24) hours per month, at least six (6)
hours per session for this facility or, in the alternative,
twenty-four (24) hours per month, at least six (6) hours
per session for the same contract(s) for both this and the
Galesburg Terrace facility, or another schedule mutually
agreed upon, until a complete collective-bargaining
agreement or a bona fide impasse is reached.
WE WILL reimburse the National Labor Relations
Board and the Union for all costs and expenses incurred
in the investigation, preparation, and conduct of Case
33–CA–015781 before the Board.
WE WILL reimburse the Union for all costs and expens-
es incurred in collective-bargaining negotiations from
January 2008 to the last bargaining session in connection
with Cases 33–CA–015781, 33–CA–015584, and 33–
CA–015669.
WE WILL furnish the Union in a timely manner the in-
formation it requested: census information regarding our
patient population and Rhodes’ personnel file without
requiring her written authorization.
WE WILL, on request by the Union, and to the extent
sought by the Union, rescind the unilateral changes in
terms and conditions of employment we unlawfully
made, and restore the status quo ante.
WE WILL make you whole for any loss of earnings and
other benefits you suffered as a result of our unlawful
unilateral changes to your terms and conditions of em-
ployment.
WE WILL, within 14 days from the date of the Board’s
Order, offer Kathy Rhodes full reinstatement to her for-
mer job, or if that position no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Kathy Rhodes whole for any loss of
earnings and other benefits resulting from her discharge,
less any interim earnings, plus interest.
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 Kathy Rhodes, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the discharge will not be used against her
in any way.
CAMELOT TERRACE
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we 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 fail and refuse to bargain in good faith
with Service Employees International Union Healthcare
Illinois and Indiana (the Union) over your terms and
conditions of employment by restricting the dates for
bargaining sessions; restricting the lengths of bargaining
sessions; repeatedly canceling and shortening scheduled
bargaining sessions beyond our unreasonable stated in-
tention not to bargain for more than 4 hours per session;
reneging on or withdrawing from tentative agreements
without good cause; refusing to bargain over economic
subjects; and refusing to make economic proposals. The
appropriate bargaining unit is:

All full-time and regular part-time certified nurses as-
sistants, dietary aides and cooks, laundry aides, activity
aides, housekeeping, and social service aides, em-
ployed by the Employer at its Galesburg, Illinois facili-
CAMELOT TERRACE

1947
ty; EXCLUDING office clerical employees, profes-
sional employees, guards, supervisors as defined in the
Act, registered nurses, licensed practical nurses, confi-
dential employees, casual employees, and all other em-
ployees.

WE WILL NOT fail and refuse to furnish the Union with
the information it requested: proof that background
checks had been performed for our certified nursing as-
sistants, attendance information, and census information
regarding our patient population.
WE WILL NOT, without providing the Union prior notice
and the opportunity to bargain with respect to the change
of a mandatory subject of bargaining and its effects, uni-
laterally reduce the hours of our housekeeping and laun-
dry employees; increase the length of the probationary
period for certain returning employees; change your
health insurance carrier; or restrict the length of bargain-
ing sessions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and
conditions of employment for our employees in the
above bargaining unit.
WE WILL bargain in good faith with the Union not less
than twenty-four (24) hours per month, at least six (6)
hours per session for the Galesburg Terrace facility or, in
the alternative, twenty-four (24) hours per month, at least
six (6) hours per session for the same contract(s) for the
Camelot Terrace and Galesburg Terrace facilities, or on
another schedule mutually agreed upon, until a complete
collective-bargaining agreement or a bona fide impasse is
reached.
WE WILL reimburse the National Labor Relations
Board and the Union for all costs and expenses incurred
in the investigation, preparation, and conduct of Case
33–CA–015780 before the Board.
WE WILL reimburse the Union for all costs and expens-
es incurred in collective-bargaining negotiations from
January 2008 to the last bargaining session in connection
with Cases 33–CA–015780, 33–CA–015587, and 33–
CA–015670.
WE WILL furnish to the Union in a timely manner the
information it requested: proof that background checks
had been performed for our certified nursing assistants,
attendance information, and census information regard-
ing our patient population.
WE WILL, on request by the Union, and to the extent
sought by the Union, rescind the changes in terms and
conditions of employment we unlawfully made, and re-
store the status quo ante.
WE WILL make you whole for any loss of earnings and
other benefits you suffered as a result of our unlawful
unilateral changes to your terms and conditions of em-
ployment.
GALESBURG TERRACE

Melissa M. Olivero, Esq., for the General Counsel.
Michael Lerner, of Chicago, Illinois, for Respondents.
Joel A. D’Alba, Esq. and Ryan Hagerty, Esq. (Asher, Gittler,
Greenfield, D’Alba, Ltd.), of Chicago, Illinois, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. Service Employ-
ees International Union Healthcare Local 4 (the Union) filed
charges and amended charges against Respondents Camelot
Terrace (Camelot) and Galesburg Terrace (Galesburg), begin-
ning May 16, 2008. An order consolidating cases and amended
consolidated complaint and notice of hearing was issued on
October 29, 2008, in Cases 33–CA–015584, 33–CA–015587,
33–CA–015669, and 33–CA–015670 alleging that at various
times from January through September 2008, the Union met
with Respondents and Respondents, in violation of Section
8(a)(1) and (5) of the National Labor Relations Act (the Act),
failed and refused to bargain in good faith in that they engaged
in the following conduct: (i) restricted the dates for the bargain-
ing sessions; (ii) restricted the lengths of bargaining sessions;
(iii) repeatedly canceled and shortened scheduled bargaining
sessions beyond their unreasonably stated intention not to bar-
gain for more than 4 hours per session; (iv) reneged on or with-
drew from tentative agreements without good cause; (v) refused
to bargain over economic subjects; and (vi) refused to make
economic proposals.1 Respondents deny violating the Act as
alleged.
These four cases were tried in Peoria, Illinois, on November
12 and 13, 2008. Briefs were to be filed by December 19, 2008.
However, on December 4, 2008, the General Counsel filed a
Recommendation to Approve Settlement Agreements between
the Union and the Respondents in the above-entitled cases.
Among other things, both the settlement agreement with Came-

1 As part of the remedy, the General Counsel seeks an order requir-
ing Respondents to bargain in good faith with the Union not less than
24 hours per month, at least 6 hours per session for each facility or,
alternatively, 24 hours per month, at least 6 hours per session collec-
tively for both facilities, or another schedule mutually agreed upon by
the parties, until a complete collective-bargaining agreement or a bona
fide impasse is reached. Furthermore, the General Counsel seeks an
order requiring Respondents to bargain in good faith with the Union, on
request, for the period required by Mar-Jac Poultry, 136 NLRB 785
(1062), as the recognized bargaining representative in the appropriate
units. Specifically, the General Counsel seeks an order extending the
Union’s certification year for an additional 6 months at Galesburg and
for an additional 9 months at Camelot.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1948
lot and the settlement agreement with Galesburg specified as
follows:

WE WILL immediately proceed to set a bargaining date,
not to exceed fourteen days from the date below and
thereafter bargain in good faith until full agreement or bo-
na fide impasse is reached. Such bargaining shall be held
totaling not less than twenty (20) hours per month, per fa-
cility, at least five (5) hours per session, or, at Respond-
ents’ option, totaling no less than twenty (20) hours per
month for the same contract(s) for both facilities, at least
five (5) hours per session, or another schedule mutually
agreed to by the parties, until a complete collective-
bargaining agreement, or good-faith impasse is reached in
both units. [Emphasis added.]

The settlement agreements (GC Exh. 94) were approved and it
was ordered that (a) the consolidated proceeding be continued
indefinitely pending the filing of a motion by the General
Counsel indicating that compliance with the terms of the set-
tlement agreements has been achieved, and also requesting that
the charges be withdrawn, the amended consolidated complaint
be dismissed, and the record closed, and (b) the briefing sched-
ule be suspended.
By pleading dated June 18, 2009, the General Counsel
moved to reopen the record in Cases 33–CA–015584, 33–CA–
015587, 33–CA–015669, and 33–CA–015670, set aside the
settlement agreement in these cases, and consolidate these cases
with Cases 33–CA–015780 and 33–CA–015781. The General
Counsel alleged that this action should be taken because subse-
quent to signing the settlement agreements described above
Respondents engaged in conduct which violated the agree-
ments. More specifically, the consolidated complaint in Cases
33–CA–015780 and 33–CA–015781, issued May 29, 2009,
which cites two original and two amended charges filed by the
Service Employees International Union Healthcare Illinois and
Indiana (the Union), collectively alleges, among other things,
that Respondents Camelot and Galesburg violated Section
8(a)(1) and (5) of the Act from December 2008 through May
2009 by (a) restricting the lengths of bargaining sessions, (b)
failing and refusing to provide requested information to Union,
(c) engaging in direct dealing with Camelot bargaining unit
members, (d) making unilateral changes to unit employees’
terms and conditions of employment without providing the
Union notice or an opportunity to bargain,2 and (e) discharging
Camelot employee Kathy Rhodes pursuant to a unilaterally
changed attendance policy. Counsel for the General Counsel
points out that these allegations all pertain to specific conduct
that is in direct violation of the settlement agreement entered
into by the parties in the above-captioned matter, and in viola-

2 It is alleged that Galesburg reduced the hours of its housekeeping
and laundry employees; that Galesburg increased the length of the
probationary period for certain bargaining unit employees; that Gales-
burg and Camelot changed their employee health insurance carrier; that
Camelot gave incentive raises to certain bargaining unit employees;
that Camelot implemented a new attendance policy; and that Camelot
began more strictly enforcing its attendance policy.
tion of the Respondents’ obligation to bargain in good faith
with the Union pursuant to the Act.
In their response, dated June 19, 2009, Respondents asserted
that “Respondent is confident that it has faithfully complied
with the Agreement and the NLRA rules”; and that “[o]nly
after a hearing is held to determine whether any violations oc-
curred, should the issue of vacating [the settlement agreement]
be considered. . . .”
By order entered June 30, 2009, my approval of the settle-
ment agreements in Cases 33–CA–015584, 33–CA–015587,
33–CA–015669, and 33–CA–015670 was withdrawn pending
my findings with respect to the new allegations. The record in
Cases 33–CA–015584, 33–CA–015587, 33–CA–015669, and
33–CA–15670 was reopened, those cases were consolidated
with Cases 33–CA–015780 and 33–CA–015781, and the re-
sumption of the trial was scheduled.
By Amendment to Consolidated Complaint issued August
11, 2009, the following prayers for relief were inserted:

WHEREFORE, as part of the remedy for the unfair labor
practices alleged . . . in Cases 33–CA–15780 and 33–CA–
15781, the General Counsel seeks an Order requiring that
Respondent Camelot Terrace promptly reinstate Kathy
Rhodes to her former position. The General Counsel also
requests that Respondent Camelot Terrace be ordered to
make Kathy Rhodes whole for any loss of earnings, in-
cluding quarterly compound interest on such lost earnings,
and other benefits, suffered as a result of her discharge un-
til such time as she is reinstated.
WHEREFORE, as part of the remedy for the unfair labor
practices alleged . . . in Cases 33–CA–15780 and 33–CA–
15781, the General Counsel seeks an Order requiring Re-
spondents to reimburse the Board and the Union for all
costs and expenses incurred in the investigation, prepara-
tion, and conduct of Cases 33–CA–15780 and 33–CA–
15781 before the National Labor Relations Board and the
courts.
WHEREFORE, as part of the remedy for the unfair labor
practices alleged . . . in Cases 33–CA–15780 and 33–CA–
15781, and as previously alleged in Cases 33–CA–15584,
33–CA–15587, 33–CA–15669, and 33–CA–15670, the
General Counsel seeks an Order requiring Respondents to
reimburse the Union for all costs and expenses incurred in
collective-bargaining negotiations from January 2008 to
the last bargaining session.
WHEREFORE, as part of the remedy for the unfair labor
practices alleged . . . in Cases 33–CA–15780 and 33–CA–
15781, and as previously alleged in Cases 33–CA–15584,
33–CA–15587, 33–CA–15669, and 33–CA–15670, the
General Counsel seeks an Order requiring Respondents to
bargain in good faith with the Union not less than twenty-
four (24) hours per month, at least six (6) hours per ses-
sion for each facility or, in the alternative, twenty-four
(24) hours per month, at least six (6) hours per session col-
lectively for both facilities, or another schedule mutually
agreed upon by the parties, until a complete collective-
bargaining agreement or a bona fide impasse is reached.
CAMELOT TERRACE

1949
WHEREFORE, as part of the remedy for the unfair labor
practices alleged . . . in Cases 33–CA–15780 and 33–CA–
15781, and as previously alleged in Cases 33–CA–15584,
33–CA–15587, 33–CA–15669, and 33–CA–15670, the
General Counsel seeks an order requiring Respondents to
bargain in good faith with the Union, on request, for the
period required by Mar-Jac Poultry, 136 NLRB 785
(1962), as the recognized bargaining representative in the
appropriate units. Specifically, the General Counsel seeks
an order extending the Union’s certification year for an
additional 6 months at Respondent Galesburg Terrace and
for an additional 9 months at Respondent Camelot Ter-
race.

By “ANSWERS TO AMENDMENT TO CONSOLIDATED
COMPLAINT CASES 33–CA–15780, 33–CA–15781, 33–CA–
15584, 33–CA–15669, 33–CA–15587, 33–CA–15670” filed
August 17, 2009, Respondents “Agrees” regarding paragraphs
1 through 6(a) and paragraph 7(a), and “Denies” paragraphs
6(b–d) and 7(b) and (c), and paragraphs 8 through 15. As noted
above, the amendment to consolidated complaint merely
amended the above-described consolidated complaint issued
May 29, 2009, to include the above-described prayers for relief.
The record does not appear to contain a timely filed response to
the consolidated complaint in Cases 33–CA–015780 and 33–
CA–015781 issued on May 29, 2009, or an explanation why a
response was not filed before August 17, 2009. As noted above,
by pleading dated June 19, 2009, Respondents replied to the
General Counsel’s motion to reopen the record and set aside the
settlement agreement in Cases 33–CA–015584, 33–CA–
015587, 33–CA–015669, and 33–CA–015670. That pleading
contains the following: “5. The Charges recently made by the
union are merely unsubstantiated accusations made by the Un-
ion, and they are in fact, completely untrue.” Respondents’
June 19, 2009 pleading does not mention the consolidated
complaint issued on May 29, 2009, in Cases 33–CA–15780 and
33–CA–15781, notwithstanding the fact that the General Coun-
sel’s motion to reopen the record in Cases 33–CA–15584, 33–
CA–15587, 33–CA–15669, and 33–CA–15670 indicates “ . . .
on May 29, 2009, the Region issued a Consolidated Complaint
[Footnote omitted] under case numbers 33–CA–15780 and 33–
CA–15781.” Individuals at both Galesburg and Camelot signed
return receipt green cards addressed to Michael Lerner at those
facilities on May 30 and June 1, 2009, respectively, for the
consolidated complaint issued on May 29, 2009. Section 102.20
of the Rules and Regulations of the National Labor Relations
Board (the Board) indicates as follows:

The respondent shall, within 14 days from the service of the
complaint, file an answer thereto. The respondent shall specif-
ically admit, deny, or explain each of the facts alleged in the
complaint, unless the respondent is without knowledge, in
which case the respondent shall so state, such statement oper-
ating as a denial. All allegations in the complaint, if no answer
is filed, or any allegation in the complaint not specifically de-
nied or explained in an answer filed, unless the respondent
shall state in the answer that he is without knowledge, shall be
deemed to be admitted to be true and shall be so found by the
Board, unless good cause to the contrary is shown.

Respondents’ June 19, 2009 pleading does not comply with the
requirements of this section of the Board’s Rules. Consequent-
ly, as stated in the rule “ All allegations in the complaint, if no
answer is filed, . . . shall be deemed to be admitted to be true
and shall be so found by the Board, unless good cause to the
contrary is shown.” Here, it does not appear that a timely an-
swer was filed. And no good cause has been shown for not
deeming all of the allegations in the consolidated complaint in
Cases 33–CA–05780 and 33–CA–015781 to be admitted to be
true. The General Counsel did not pursue this matter.
The resumed trial in this consolidated proceeding was held
on August 25 and 26, 2009.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Union, and the Respondents, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Camelot, a corporation, with an office and place of business
in Streator, Illinois, has been engaged in the business of operat-
ing a nursing home, where during the calendar year preceding
the issuance of the above-described consolidated complaints it
derived gross revenues in excess of $100,000, and it purchased
and received at its facility materials or services valued in excess
of $5000 directly from points outside the State of Illinois.
Galesburg, a corporation, with an office and place of business
in Galesburg, Illinois, has been engaged in the business of op-
erating a nursing home, where during the calendar year preced-
ing the issuance of the above-described consolidated com-
plaints it derived gross revenues in excess of $100,000, and it
purchased and received at its facility materials or services val-
ued in excess of $5000 directly from points outside the State of
Illinois. Respondents admit and I find that they are employers
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
As here pertinent, Michael Lerner is the president of Gem
Healthcare Management, Inc. (Gem), of Chicago, Illinois,
Galesburg, and Camelot. The Union was certified as the bar-
gaining representative for certain employees at Galesburg on
May 24, 2007, and at Camelot on October 10, 2007.3

3 The Galesburg unit is as follows:
All full-time and regular part-time certified nursing assistants, helping
hands, dietary aides and cooks, laundry aides, activity aides, house-
keeping, and social service aides, employed by the Employer at its
Galesburg, Illinois facility; EXCLUDING office clerical employees,
professional employees, guards, supervisors as defined in the Act, reg-
istered nurses, licensed practical nurses, confidential employees, casu-
al employees, and all other employees.
The Camelot unit is as follows:
All full-time and regular part-time certified nurses assistants (CNAs),
dietary employees, cooks, housekeeping employees, laundry employ-
ees, unit aides (assistants), activity aides, medical records, and rehab
aides employed by the Employer at its facility currently located at 516
W. Frech St., Streator, Illinois; but excluding all other employees, de-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1950
Lerner testified that he is the shareholder of Galesburg; that
he is the owner of Camelot; that Gem does not have any owner-
ship interest in either Camelot or Galesburg; that Gem does not
pay any of the employees of Galesburg or Camelot; and that
Gem does not manage Galesburg.
When called by Lerner, Deborah Kipp, who has been direc-
tor of operations of Galesburg, Camelot, and two other of Ler-
ner’s facilities since 1997, testified that in 2004 she negotiated
a contract with another union, the UAW, for Lerner’s Forest
Hill facility; that the negotiations took 2.5 months; that the
parties spent about 4 hours (afternoons) on each session and
they met every other week; that the contract was written from
scratch; that no one saw a need to meet more than 4 hours a day
to get the contract agreed to and signed; that the negotiations
with the UAW occurred in an extremely calm atmosphere with
a lot of give and take; that she and Lerner are negotiating with
SEIU; that the negotiations with SEIU have been at times very
stressful, very negative; that it took management so much less
time to get a contract done with UAW than it is with SEIU
because with the UAW there was an immediate rapport, things
were calm, and there weren’t demands; that only two people
negotiated for the UAW; that SEIU has employees participating
in negotiations; that she tries to visit the four nursing homes she
oversees once a week; that management typically has been
giving 3 to 4 hours to SEIU for each bargaining session; and
that it is not easy for her to give up her time for negotiations,
and she could not give up a whole day of her time for negotia-
tions.
On cross-examination, Kipp testified that management’s ne-
gotiations with the UAW were amicable; that she was not
aware of any charges being filed with the Board over manage-
ment’s negotiations with the UAW for the Forest Hill contract;
that General Counsel’s Exhibit 59 is an affidavit that she signed
and gave to the Board but she could not say that it was provided
to the Board with respect to a charge that was filed against
Forest Hill; that her affidavit begins with: “[a]t the initial meet-
ings between the UAW and Forrest Hill, it was agreed to meet
every two weeks, for one and a half hours. This time frame was
set to allow each side to review the issues and formulate posi-
tions and responses” (Tr. 306); that she did not recall any com-
plaints issued against Forest Hill; and that General Counsel’s
Exhibit 61 is a charge which she does not exactly read to be a
charge against Forest Hill Health and Rehab Center alleging,
among other things, that the employer has bargained in bad
faith by renegotiating tentatively agreed to proposals. General
Counsel’s Exhibit 61 is a charge filed on “2/14/05” with the
Board in Case 33–CA–014793 by the International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW) against Forest Hill Health and
Rehab Center, Inc. (Forest Hill), which as noted is owned by
Lerner. This charge alleges the following with respect to Forest
Hill:

partment heads, casual employees, LPN’s, RN’s, managers, mainte-
nance workers, office clerical employees and guards, professional
employees and supervisors as defined in the National Labor Relations
Act. [GC Exhs. 1(rr) and (xx).]
1. Since August 2004, the above-named employer has
bargained in bad faith by refusing to meet at reasonable
times and confer in good faith, and has caused unreasona-
ble delay in meeting to negotiate a first agreement.
2. Since August 2004, the above-named employer has
bargained in bad faith by refusing to show proposals tenta-
tively agreed to at the table to their attorney. By this ac-
tion, the employer refuses to actually tentatively agree to
any proposal.
3. Since December 21, 2004, the above-named em-
ployer has bargained in bad faith by renegotiating tenta-
tively agreed to proposals.
4. Since December 21, 2004, the above-named em-
ployer has bargained in bad faith by engaging in undue de-
lay in providing to the union requested information that is
relevant to the bargaining process.

General Counsel’s Exhibit 62 is a Board complaint in Case 33–
CA–014793 issued March 30, 2005, which alleges that Forest
Hill violated Section 8(a)(1) and (5) of the Act by failing and
refusing to bargain in good faith by engaging in dilatory bar-
gaining tactics, namely (1) refusing to meet and bargain with
the Union more frequently than once every 2 weeks for about 2
hours; (2) canceling scheduled negotiation sessions and refus-
ing to reschedule them any sooner than 2 weeks later; (3) refus-
ing to be bound by tentative agreements reached during negoti-
ations by insisting on reserving the right to have its attorney
“review and refine” all tentative agreements, and then refusing
to show the agreements to its attorney until all provisions of a
proposed contract have been completely negotiated. The com-
plaint alleges that Owner Lerner and Director of Operations
Kipp have been supervisors and agents of Forest Hill within the
meaning of the Act. General Counsel’s Exhibit 63 is an un-
signed (If there was a cover letter, it was not included in the
exhibit.) position statement of Forest Hill in Case 33–CA–
014793 which opens with “[t]his employer has not bargained in
bad faith in any which way. The union continues to fabricate
these frivolous charges in retaliation of the employer’s charge
made against them, and when negotiations aren’t going their
way. Their charges are simply untrue.” And General Counsel’s
Exhibit 64 is a (If there was a cover letter, it was not included
in the exhibit.) supplemental position statement of Forest Hill
in Case 33–CA–014793 which opens with the following:

This employer has not bargained in bad faith in any which
way. It has faithfully met with the union on the reasonable
biweekly schedule that was initially agreed to and has done
nothing to intentionally delay the negotiating process. The un-
ion, feeling unsuccessful at the bargaining table, is attempting
to badger the employer, by continuously bombarding the
NLRB with frivolous, contrived, and untruthful charges of
unfair bargaining.

Kipp further testified that General Counsel’s Exhibit 64 in-
cludes an affidavit from her and Lerner (both dated February
27, 2005); that the complaint in Case 33–CA–014793 apparent-
ly was withdrawn due to a settlement between Forest Hill and
the UAW because she did not have to go to a Board hearing in
that matter; and that she is also director of operations for Forest
Hill just as she is for Camelot and Galesburg, and she held that
CAMELOT TERRACE

1951
position with respect to Forest Hill between August and De-
cember 2004. Kipp also testified on cross-examination that she
is familiar with the contract between UAW and Forest Hill; that
she was at the collective-bargaining sessions for that contract;
and that the contract, Charging Party’s Exhibit 1 (the cover
page and pages 14 and 15 of the collective-bargaining agree-
ment), contains provisions that state (1) “Employer shall have
the right to discipline employees by verbal or written repri-
mand, suspension, or discharge for just cause” (Tr. 314 and
315), and (2) employees will be able to file grievances to con-
test their discharge and submit those grievances to final and
binding arbitration, in the event that grievances are not re-
solved.
On redirect, Kipp testified that when she started working at
the Forest Hill facility in 1989 Beverly Enterprises was the
owner of the facility; and that Lerner purchased the facility in
1996.
Lerner, who opened the door regarding Forest Hill by asking
Kipp about it on direct but then objected to cross-examination
of Kipp on this topic arguing that it had no relevance to the
negotiations involved here and it was a separate corporation
totally unrelated to Respondents, testified on cross-examination
that he is president of Forrest Hill; that he negotiated and
signed the collective-bargaining agreement between Forest Hill
and the UAW; that the contract contains provisions that em-
ployees would be disciplined for just cause and employees are
allowed to challenge discipline under the grievance procedure
by asserting that the discipline was without just cause; that
possibly the final step of the grievance procedure is final and
binding arbitration; and that he did not recall negotiating that.4
By letter dated November 14, 2007 (GC Exh. 2), Hal Rud-
dick, who was the president of Local 4 of the Union, advised
Lerner, regarding Galesburg and Camelot, that the Union pro-
posed that they bargain the two facilities jointly, with negotia-
tions at the facilities, alternating the location with a meeting at
Galesburg one week followed by a meeting at Camelot the next
week. The letter specifically proposed that bargaining be
scheduled weekly. The letter also requested specified infor-
mation, including—but not limited to—the employee hand-
book, any and all disciplinary policies and/or memos describing
the application of the discipline policies or informing employ-
ees thereof, and any and all work rules.
By letter dated November 15, 2007 (GC Exh. 3), Lerner re-
sponded, as here pertinent, that there would be two separate
agreements and each home intends to seek different terms in
certain areas; that neither home has an objection to engaging in
coordinated bargaining to some extent; that there is no agree-
ment to merge the bargaining units; that Respondent’s would
make every effort to hold weekly negotiations in different loca-
tions as Ruddick suggested; that some of the information re-
quests will be complied with but some of the other information
requests must be shown to be relevant and explained before that
information is provided; and that he was available to meet on

4 CP Exh. 1 (excerpts from) and CP Exh. 2 (the full collective-
bargaining agreement between Forest Hill and the UAW) demonstrates
that the contract calls for final and binding arbitration. Lerner signed
the last page of the latter.
November 27, 2007, at Galesburg and December 5, 2007, at
Camelot.
By letter dated December 13, 2007 (GC Exh. 4), Ruddick
wrote Lerner indicating what information the Union had re-
ceived, what information it had not received, and why it re-
quested certain information. Ruddick also advised Lerner that
the Union’s chief negotiator would be its director of collective
bargaining and representation, Julie Kwiek. Dates, when the
Union was available were provided. Ruddick indicated that the
Union proposed picking one date each week for the purpose of
bargaining, reserving the right to request a more frequent
schedule if necessary. Also, the Union proposed the first meet-
ing for Galesburg, the following week in Streator, and alternat-
ing thereafter.
By letter dated December 14, 2007 (GC Exh. 5), Lerner ad-
vised Ruddick, as here pertinent, that certain of the information
requested had been forwarded and certain of the information
was being gathered to be shipped to the Union. Additionally,
the letter indicates as follows:

In regard to negotiation scheduling, you are quite
aware of my inability to be out of the Chicago area on Fri-
days, due to my religious observance. So, offering Fridays
as an alternate day is at best, being disingenuous. In addi-
tion, please be advised that I will be on vacation from
01/03/07–01/14/07. . . .
We therefore can meet 12/27 or 1/15 in Galesburg, and
1/24 in Streator. Please confirm your intentions to us.

By letter dated December 19, 2007 (GC Exh. 6), Kwiek ad-
vised Lerner, as here pertinent, that

The offering of Friday bargaining was not disingenu-
ous at all; we could meet in Streator on Fridays and if you
will let us know what time you’d have to leave, we can ac-
commodate that.
Unfortunately, we are already scheduled to be in nego-
tiations on December 27 with the Illinois Association of
Health Care facilities—if we had been available that day,
we would have offered it. However, we are still available
on December 28, and suggest we meet at 9 am and go until
noon or so, if your schedule permits. We do however
agree to meet with you on January 15 in Galesburg and
January 24 in Streator. Please do review the other days we
offered and let us know until what time you can meet on
those dates.

By facsimile dated December 20, 2007 (GC Exh. 7), Lerner
advised Kwiek that “1/15 Galesburg and 1/24 Streator is con-
firmed. Fridays are never available. We need to prepare before
each meeting, so all meetings need to be between 1–4 PM.”
Kwiek testified that based on her experience in negotiating
40 to 50 collective-bargaining agreements (all but 5 were in the
nursing home industry), 3-hour meetings are not standard when
trying to reach a first contract for a healthcare facility; that it is
complicated to write a contract from scratch, and for a first
contract it takes a lot more time; and that the Union usually
tries to schedule (and it is the standard in Illinois) all day ses-
sions at least once a week with respect to first contracts in the
nursing home industry.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1952
By facsimile dated January 2, 2008 (GC Exh. 8), Lerner
asked Kwiek to “Please confirm our meetings at 1 PM—in
Galesburg on 1/15 and in Streator on 1/24.”
By letter dated January 3, 2008 (GC Exh. 9), Kwiek advised
Lerner, as follows:

We will accept the times you have offered. Please note that it
is over our objection, in that we believe full day sessions are
more appropriate and that these short sessions will have the
effect of delaying negotiations. While we will meet with you
at the times you suggest, we urge you to reconsider your posi-
tion and engage in longer sessions.

Kwiek testified that she attended the first bargaining session
on January 15, 2008; that the session took place at Galesburg,
beginning at approximately 1:15 p.m.; that she and a group of
employees of the facility were present for the Union; that Ler-
ner and Kipp were present for Galesburg and Camelot; that the
parties exchanged proposals (GC Exh. 52)5; that the parties did
not reach any tentative agreements at this session; that the ses-
sion ended before 5 p.m.; that Lerner could not meet from Jan-
uary 3 to 14, 2008, because he was on vacation; and that the
parties had already scheduled a session for January 24, 2008.
On cross-examination, Kwiek testified that the Union’s pro-
posed contract is representative of the master contract or collec-
tive-bargaining agreement the Union has with the Illinois Asso-
ciation of Healthcare Facilities, which encompasses about 120
facilities; that in almost every contract she has negotiated in
Illinois the current agreement between the Union and the Asso-

5 The Union’s complete contract proposal consists of 45 pp., with 29
pp. of appendices and 2 pp. of letters of agreement. The Respondents’
proposal consists of 1 p. which reads as follows:

MANAGEMENT RIGHTS
_______________________________________________________
The parties to this Agreement hereby unequivocally recog-
nize and declare that Management has the exclusive right to man-
age the Nursing Home and all its facilities in accordance with its
own policies and procedures. Management has the sole right to
manage the Nursing Home. The only restrictions to Manage-
ment’s rights to operate the Nursing Home are specifically de-
tailed in this Labor Agreement. No other constriction will be rec-
ognized as a limitation to Management’s right to direct the work
force to operate the Nursing Home for the best possible service to
the community.
A few of Management’s rights include the establishment of
policies and procedures, establishing operation levels, and staffing
requirements. Management had the exclusive right to create jobs,
job descriptions, job function requirements, job performance
standards and to hire, terminate, lay off, schedule, transfer, pro-
mote, suspend, discipline, the right to relieve employees from du-
ty because of lack of work, the right to schedule operations, shifts,
and all hours of work, the right to assign work and overtime
hours, and the right to establish rules pertaining to the operation
of the Nursing Home and permissible conduct of employees.
Management retains the absolute right to close all or part of the
Nursing Home or to sell, relocate, transfer work, or in any other
way to dispose of or alter the facility and work performed therein.
Should the Nursing Home’s Management fail to exercise any
one of its particular rights to manage, it will not be considered
that the right or rights are waived.
ciation is almost always the Union’s first proposal; that if the
employer does not agree to that, then the parties are starting
over from scratch; that Lerner indicated that he was not willing
to follow the Union’s first proposed contract; and that Lerner
went through the Union’s proposal and rejected standard lan-
guage out of hand.
On cross-examination, Neimark testified that while the Un-
ion was certified by the Board to represent a unit of employees
at Galesburg on May 24, 2007, bargaining did not begin until
January 2008 because the Union took the position that man-
agement had to follow the master contract of the Association
because Galesburg had not provided timely notice that Gales-
burg wanted side letter negotiations; and that the Union first
asked for negotiations on the Galesburg contract right after
Lerner indicated in November 2007 that Galesburg, as here
pertinent, was withdrawing from the Association for subse-
quent bargaining.
On redirect, Neimark testified that whether (a) Camelot and
Galesburg belonged to the Illinois Association of Healthcare
Facilities; (b) the master contract between the Union and the
Association applied to Camelot and Galesburg; and (c) a re-
quest for letter bargaining was timely filed, is presently pending
before a Federal court; that after it was certified by the Board,
the Union requested that management apply the terms of the
master agreement; that management refused; that litigation was
then launched with respect to that request; that the Union re-
quested bargaining after Lerner indicated that the employers
were withdrawing from the master contract for the purpose of
renegotiating that contract, and this was the reason that bargain-
ing did not start until months after the certification; and that the
Union was operating under the assumption that the master con-
tract was legally binding on the employers involved here prior
to that time.
On recross, Neimark testified that Galesburg and Camelot
were part of the Illinois Association of Healthcare Facilities;
and that it is his understanding that the Union has an agreement
with the Association and the members of the Association are
bound by the agreement that the Union has with the Associa-
tion.
Lerner testified that Galesburg and Camelot “were not part
of the association,” which was described in the question by
Kipp as the “Nursing Home Association.” (Tr. 367.) As noted
above, the group in question was described earlier in the trial
by Neimark as the “Illinois Association of Healthcare Facili-
ties” and not the “Nursing Home Association” as in Kipp’s
question to Lerner. Lerner testified further that Galesburg and
Camelot were not part of the association because Galesburg and
Camelot did not sign the contract with SEIU, they did not pay
dues, he never withdrew them from the Association, and they
were never part of it.
Kipp testified that in the negotiations with SEIU there was a
verbal agreement about not starting negotiations over the eco-
nomic issues until the noneconomic issues were finished; that at
either the first or second bargaining session Kwiek said that
tentative agreements “were not ‘an agreement’ or “we would
have put agreed. They were tentative in nature.” (Tr. 253); that
Respondent’s Exhibit 1 is the proposed contract given to man-
agement by the Union at the outset; that it has economics and
CAMELOT TERRACE

1953
noneconomics in it; that Respondent’s Exhibit 2 consists of the
noneconomic issues and it was the document the parties used
for 4 or 5 months at the beginning of negotiations; and that
SEIU wanted it to be one contract and management rejected
this proposal, indicating that there would be two contracts.
On cross-examination, Kipp testified that she gave an affida-
vit to the Board (GC Exh. 58) on June 18, 2008, in Galesburg;
that it is her testimony that a ground rule was established at one
of the first two bargaining sessions between management and
the Union that tentative agreements are merely that, tentative
and “open to renegotiation at any time” (Tr. 297)6; that in her
affidavit she indicated, “I do not recall ground rules being set”
(Ibid.), and so in June 2008 she swore that she did not remem-
ber any ground rules being set; that in her affidavit she indicat-
ed that Lerner asked that the parties get all of the noneconomic
issues bargained and settled before moving on to economic
issues but she did not indicate in her affidavit that the Union
agreed to take this approach; that she did not have the authority
to enter into an agreement with the Union and bind either Cam-
elot or Galesburg; that her employer is Gem Healthcare, which
is a management company owned by Lerner; that in her affida-
vit she indicated that “bargaining sessions generally lasted be-
tween two and a half and three hours” (Tr. 301); that the em-
ployer cannot meet for longer sessions because “[i]t would
impede our business. . . .” (Id. at 302); that she did not believe
that longer sessions would be productive; that she told Neimark
that she would ask Lerner if longer sessions would be possible;
that she did ask Lerner but she did not recall when; that she
asked Lerner with his responsibilities would there be a possibil-
ity of longer sessions; that Lerner told her that “he had his
hands full [‘with other business matters’], at this time” (Id. at
303); and that she believed that the bargaining sessions between
January and September 2008 were productive even though
there had not been agreement reached on even one-half of a
contract.
Lerner testified that he oversees four nursing homes; that
normally he goes to each nursing home every other week or, in
other words, he goes to two of the facilities one week and the
other two facilities the following week; that he normally arrives
at the facilities about 11 a.m. or 12 noon; that he checks on
maintenance, housekeeping, bookkeeping, and anything that
might be improved; that he is usually at the facility until 6 p.m.;
that in deciding how many hours he would give to negotiations,
he took into consideration that he would have 2 to 3 hours at
the facility to do what he normally did in 6 or 7 hours before
negotiations commenced; that at the first bargaining session on
January 15, 2008, Kwiek gave management what the Union
called a master contract; that the parties “made some agree-
ments . . . as to how we would proceed during this negotiating
process” (Tr. 340); that the parties agreed to (a) meet one week
at Camelot and one week at Galesburg, and (b) negotiate none-
conomic issues first and then discuss the economic issues; and

6 It is noted that Kipp gave the following testimony at p. 269 of the
transcript:
Q. BY MR. LERNER: Are you knowledgeable with NLRA
rules, regarding negotiations?
A. Yes.
that he believed that the first bargaining session started at 1
p.m.
On cross-examination, Lerner testified that the agreement
management allegedly reached with Kwiek regarding tentative
agreements was verbal and not memorialized by a signed
agreement; and that he thought that there was written corre-
spondence in his file between management and the Union with
respect to tentative agreements. When asked where in General
Counsel’s Exhibit 65 (not offered) does it indicate that a tenta-
tive agreement could be opened at any time, Lerner testified as
follows:

we discussed the tentative agreement was tentative in the
sense, that the agreement on the issue was tentative pending
an agreement on the entire document. That means, if there is
not agreement on the entire document, then it is tentative and
it is able to be opened. [Tr. 378.]

It appears that the portion of General Counsel’s Exhibit 65 read
into the record on transcript pages 377–379 is the first response
on page 1 of General Counsel’s Exhibit 55, which is an email
from Neimark to Lerner dated May 14, 2008, and which is set
forth below. Also, with respect to the following language cited
in General Counsel Exhibit 66 (a May 5, 2008 email from Ler-
ner to Neimark): “We need an agreed upon definition of a TA
before we agree to use them in the future,” it is noted that Gen-
eral Counsel’s Exhibits 66 and 54 are the same exhibit. Lerner
was asked on cross-examination why if the parties already
agreed at the first session that tentative agreements could be
opened at any time, he was, on May 5, 2008, arguing in his
email that the parties had to agree to allow tentative agreements
to be opened at any time. His response, at best, was equivocal.
Lerner testified that Galesburg and Camelot, which are jointly
negotiating, choose not to bargain more than 4 hours a day
“because it hurts our business.” (Tr. 382.)
On rebuttal, Crystal Lopez testified that for 18 months before
she testified at the trial herein she became an employee of Ser-
vice Employees International Union; that prior to that she
worked at Camelot; that she was terminated by Camelot in
February 2007; that she has been part of the Union’s bargaining
team for the contracts at Galesburg and Camelot; that she at-
tended the first bargaining session, which was held at Gales-
burg; that she, Kwiek, and several members from the nursing
home were present for the Union; that Lerner and Kipp were
present for management; that Kwiek gave Lerner the Union’s
proposal which was a master contract; that the parties reviewed
the Union’s proposal at this session, indicating yes or no; that
she did not recall anything else being discussed by the parties at
this first session; that Kwiek did not ever discuss the meaning
of the words “tentative agreement” at this session; that no one
at this session discussed the meaning of “tentative agreement”;
that there was no sort of agreement reached at this session as to
the meaning of “tentative agreement”; that no one at this ses-
sion said words to the effect that tentative agreements are sub-
ject to be reopened at any time; and that there was no ground
rule established at this session that tentative agreement meant
only tentative agreement.
On cross-examination, Lopez testified that Camelot did not
give her a reason for her termination. As noted below, it was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1954
ultimately decided by the Board that Camelot violated the law
in terminating Lopez.
General Counsel’s Exhibit 11 is an exchange of emails be-
tween Lerner and Kwiek, both dated January 21, 2008. First,
Lerner, with an email sent at “1:12 PM,” advised Kwiek as
follows: “Unfortunately I have to have surgery this week, and
will have to reschedule the Thursday meeting for next week.
We could be available to meet next Monday morning at 10AM,
or Tuesday 1:30PM in Streator.” (Emphasis added.) Kwiek
responded as follows:

I am sorry to hear about your surgery and am glad you
will be available the following week to negotiate. Tues-
day, January 29 . . . [at] 1:30 works best for me.
While we are scheduling this make-up date, I would
like to schedule some more dates. I . . . [am] available the
following dates:
Tuesdays: February 5, 12, 19, 26
Thursdays: January 31, February 14, 21, 28
Since we are only meeting 1/2 days, I suggest we try to
meet twice a week
Please let me know what dates work for you.

By letter dated January 21, 20087 (GC Exh. 10), Lerner ad-
vised Kwiek as follows:

I wanted to reiterate in writing what we informed you
at our meeting on 1/15/08, that Camelot Terrace and
Galesburg Terrace are two separate corporations and two
separate bargaining units. This issue was clearly conveyed
to the union in the enclosed letter on 11/15/07 [see above],
and is not a negotiable item.
This letter clearly stated that they are two distinct bar-
gaining units, and the negotiations would be coordinated
just to provide the efficiencies for everyone.
If you are unwilling to agree to this point, please let
me know as soon as possible, so that we can reschedule
our negotiating meetings separately, for each facility.

Lerner testified that he canceled the January 24, 2008 session
because he had surgery that week; that Respondent’s Exhibit 7,
which he retrieved from a pass coded web site of the North
Shore University Health System on “11/11/08” shows that he
had surgery on January 21, 2008 (The only entry on the docu-
ment referring to January 2008 reads as follows: “Monday
01/21/2008 11:45 am Office Visit with JOSEPH MULDOON,
MD GENERAL SURGERY OLD ORCHARD”)7; that the
painful procedure was done on an outpatient basis and he was
unable to attend a bargaining session “two days later” (Tr. 351)
(If the surgery was performed on Monday, January 21, 2008,
Thursday, January 24, 2008, would not have been “two days
later.”); that he notified Kwiek on January 23, 2008, that he
was still in pain and unable to make the January 24, 2008 ses-
sion; and that he did not turn over this document to counsel for

7 Lerner did not attempt to explain why if he had outpatient surgery
during an office visit at 11:45 a.m. on January 21, 2008, later that same
day (at “1:12 PM”) he would send an email to the Union indicating “I
have to have [speaks to the future] surgery this week” and not “I have
had [speaks to the past] surgery earlier today.”
the General Counsel in response to her subpoena for, inter alia,
any document supporting Respondents’ denial that they unrea-
sonably canceled bargaining sessions.
Kwiek testified that the January 29, 2008 session was can-
celed because Lerner called her and told her that there was a
snowstorm and driving conditions were dangerous; that she
agreed to the cancellation of this session; and that she believed
that she and Lerner agreed to meet on February 4, 2008.8
Lerner testified that the session scheduled for January 29,
2008, was not held because there was a snowstorm being pre-
dicted and he and the Union agreed that it would be unsafe to
travel that day; and that the session was rescheduled for Febru-
ary 5, 2008.
General Counsel’s Exhibit 12 is an exchange of emails be-
tween Lerner and Kwiek on February 4, 2008. At 7:34 a.m.
Lerner advised Kwiek as follows:

Unfortunately we will need to reschedule this Tues-
day’s session. My son just got engaged in NY, and I won’t
be back until Wed. I’m available Thursday, if that works
for you. Please let me know.
Please don’t take these rescheduling as delaying tac-
tics; we would like to get this agreement completed as
quickly as possible. However, both my surgery and this
engagement were unavoidable. We intend to meet with
you every week until an agreement is worked out that is
beneficial to both sides.

Kwiek responded at 3:39 p.m. as follows:

The Union is very disappointed the Employer has to
cancel tomorrow’s scheduled bargaining date. We appre-
ciate the assurances that the Employer is not trying to de-
lay. But between your surgery, your suggestion we cancel
last week due to weather (which the Union agreed to) and
to this, we are 3 weeks behind where we should be.
Therefore, we are rearranging our schedules to ac-
commodate the employer’s suggestion that we meet this
Thursday, February 7th. We can be in Streator to start ne-
gotiations at 1:30 and request that we go until around 6pm.
Ron Neimark will be the chief negotiator for the Union on
that day.
While each of the reasons for delays/cancellation has
some merit on its own, the collective effect of the combi-
nation is to inappropriately delay the bargaining. Addi-
tionally, postponements such as this last minute from to-
morrow until Thursday, interfere with the Union’s ability
to effectively represent its members; we have several other
negotiations going on in the Union (in fact this Thursday,
we’re meeting with the IAHCF, of which you are a mem-
ber) and when we schedule bargaining dates with an em-
ployer we look at all the bargaining we have going on and
work very hard to ensure we make ourselves available on
a regular basis for all those negotiations. So I will also
take this opportunity to follow up with you on our other
scheduled days. Using the alternating site schedule and

8 Subsequently, Kwiek testified that she misspoke and they had
agreed to meet on February 5, 2008.
CAMELOT TERRACE

1955
meeting every Tuesday puts us at Galesburg on the 12th
and 26th of February, as well as the 11th and 25th of
March, and February 19, and March 4 and 18 in Streator.
We ask that the Employer reconsider its position regarding
the time of negotiations and agree to meet form 10am–
4pm on those dates. The schedule of once per week four
hours has gotten us exactly 1 date in the last 4 weeks.

Lerner testified that he canceled the February 5, 2008 session
because there was a religious ceremony for his son’s engage-
ment; and that the session was rescheduled for 2 days later
during the same week.
Neimark testified that his bargaining notes (GC Exh. 53)
show that the first bargaining session he attended with Re-
spondents occurred on February 7, 2008; that he wrote most of
his bargaining notes at the sessions and some were written
shortly after the bargaining sessions; that he kept the notes as
part of regularly conducted business activity and in the ordinary
course of business; that General Counsel’s Exhibit 57 is a 2008
calendar which shows the days which the parties held bargain-
ing sessions from February 7 through September 25 and wheth-
er the session involved Galesburg or Camelot; that he, Crystal
Lopez and two employees were present for the Union at the
February 7, 2008 session at Camelot; that management was
represented by Lerner and Kipp; that all of the Union’s contract
proposals (GC Exh. 52) were reviewed for the benefit of the
Camelot employees and Lerner responded to the proposals; that
a tentative agreement occurs when the parties sign off on lan-
guage that would become effective once the entire contract is
agreed upon, and they are binding agreements that is going to
be language in that contract once it is settled; that at this session
the parties talked about having the sessions together for Gales-
burg and Camelot; that while the parties did not agree that the
contract would be the same for both facilities, they agreed that
language would be the same for both facilities and for efficien-
cy purposes the parties would negotiate them together; that the
Union insisted that the 4-hour sessions that Lerner insisted
upon were not sufficient; that they discussed article 14 on vot-
ing, article 15 on the grievance procedure, paid meals, shift
differential, weekend pay, and they set times for future bargain-
ing sessions; that neither Lerner nor Kipp made any written
proposals at this session; that no tentative agreements were
reached at this session; that the parties already agreed to hold-
ing sessions on every Tuesday in February and March 2008;
that while the Union proposed all day sessions ending at 5 p.m.,
Lerner insisted on sessions lasting 3 to 4 hours; and that this
session lasted 2 hours and 15 minutes, ending at 5 p.m.
On cross-examination, Neimark testified that he did not re-
call if the February 7, 2008 session started at 2:45 p.m. because
he was caucusing with his employees.
On rebuttal, Lopez testified that she, Neimark, and a couple
of members were present for the Union at the second session on
February 7, 2008, which was held at Camelot; that Lerner and
Kipp were present for management; that Neimark was the Un-
ion’s chief negotiator; that no one discussed the meaning of
“tentative agreement” at this session; that no rule was estab-
lished that tentative agreements are merely tentative and can be
backed out of at any time; that nothing to this effect was estab-
lished; and that she did not remember what else was discussed
at this session.
On February 12, 2008, the bargaining session was held at
Galesburg. Neimark testified that he and named employees,
including Lopez, were present for the Union at this session and
Lerner and Kipp represented management; that the parties con-
tinued to work off the contract proposal that was given to Re-
spondents by Kwiek at the first session; that General Counsel’s
Exhibit 51 is a separate copy of the Union’s initial proposal on
which he recorded the tentative agreements, with their dates;
that as indicated on General Counsel’s Exhibit 51, on February
12, 2008, the parties reached a number of tentative agreements;
that the original contract proposal submitted to Respondents by
Kwiek contained 29 articles and 35 rules; that on February 12,
2008, the parties tentatively agreed to at least portions of 11
articles and 20 work rules, or, in other words, 57 percent of the
proposed rules and 38 percent of the proposed articles; that
both he and Lerner initialed the tentative agreements in General
Counsel’s Exhibit 51; that he believed that the Employer intro-
duced its proposed absenteeism policy at this meeting; that
while he could not remember how long this session lasted, he
did recall that the parties never had a session that was longer
than 4 hours; and that subsequent meetings had already been
scheduled.
On February 19, 2008, the bargaining session was held at
Camelot. Neimark testified that he and Lopez were present for
the Union; that Lerner and Kipp represented management; that
the Union presented a series of package proposals or, in other
words, the Union had taken some of the things that the facilities
had agreed to and combined them with (a) some of the things
that the facilities had not agreed to, and (b) some of the things
the facilities requested; that the Union asked Respondents to
agree to all of the package which included some of the things
the Union wanted and some of the things the Respondents
wanted; that the parties went through the package proposal at
this session; that the parties then discussed the drug policy and
unsafe work; that the parties did not reach any agreements that
day; that the session lasted no longer than 2.5 hours; and that a
session had been scheduled for February 26, 2008.
Neimark and Lerner exchanged emails on February 25, 2008
(GC Exh. 13). Neimark advised Lerner that “[g]iven the predic-
tions of 6–9 inches of snow, I think it would make sense to
cancel bargaining tomorrow and move next week’s session to
Galesburg. . . .” Lerner responded, “I will agree to cancel to-
morrow; but I will have to get back with you on a rescheduled
time and place.”
By email dated February 29, 2008 (GC Exh. 14), Lerner ad-
vised Neimark as follows: “We won’t be able to make it to
Galesburg next week, since your cancellation of this weeks
session altered our schedules. However, we would be able to
meet in Streator on Tuesday 3/4 at 1:30PM. Please let me know
your availability.”
With respect to the bargaining session on March 4, 2008,
Neimark testified that it was held at Camelot in Streator; that he
and Lopez were present for the Union; that Lerner and Kipp
represented management; that the session started on time, he
believed at 1:30 p.m.; that the parties discussed some of the
work rules and seniority; that this session did not go beyond 5
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1956
p.m. so it lasted no more than 3.5 hours; that the parties did not
reach any tentative agreements at this session; and that the par-
ties confirmed that there were additional sessions scheduled on
March 11, 18, and 25, and April 1, 2008.
On March 4, 2008, Administrative Law Judge Lawrence
Cullen issued a decision in Camelot Terrace, Inc., 353 NLRB
151, Cases 13–CA–043936 and 13–CA–044044 concluding
that Camelot violated Section 8(a)(3) and (1) of the Act by its
issuance of warnings to employee Cheryl Henson and its dis-
charge of Henson but that it did not violate the Act with respect
to its discharge of employee Lopez.
Regarding the bargaining session on March 11, 2008,
Neimark testified that it was held at the Galesburg facility; that
he, Lopez, and Chastity Babcock were present for the Union;
that Lerner and Kipp represented management; that the parties
discussed the drug, alcohol, and absenteeism policy; that he
believed that the session started at 2 p.m. but he did not recall
when the session ended; that the session definitely lasted less
than 4 hours; and that the parties did not reach any tentative
agreements at this session.
With respect to the bargaining session on March 18, 2008,
Neimark testified that he believed that it started at 2 p.m.; that
the parties discussed the Union’s new package proposal which
was similar to the Union’s previous package proposal and
which had been revised to include additional changes at the
request of management; that the parties reviewed the package
and made changes at the request of management; that at 4:10
p.m. management asked for a caucus to review the proposals
and about 10 minutes later management returned from its cau-
cus and Lerner said that they were not going to be able to com-
plete the review and the session was over for the day; that since
it seemed that the parties had reached an agreement on proposal
package 3, he asked Lerner if they could TA (tentatively agree)
that and they TAed that at that point; that this is reflected in the
package proposal, namely article 26, Credit Union; that this
session ended no later than 4:30 p.m.; that the session had been
scheduled to last until 5 p.m.; and that the parties only reached
that one tentative agreement.
On cross-examination, Neimark testified that on March 18,
2008, the Employer said that their caucus would take longer
than the allotted time until 5 p.m. and it did not pay for the
Union to wait; and that management did cut this meeting short
by indicating that they would not be available.
Regarding the bargaining session on March 25, 2008,
Neimark testified that it was held at the Galesburg facility; that
General Counsel’s Exhibit 53(jj) are his notes for this bargain-
ing session, which notes were made at or near the time listed
for March 25, 2008, and which notes accurately reflect what
transpired that day; that he, Lopez, and Babcock were present
for the Union; that Lerner and Kipp represented management;
that they discussed the package which the Union presented on
March 18 and Lerner indicated that he would be willing to
agree to package 1, as modified at their request if the Union
agreed to add the Employer’s management-rights proposal (the
one given to Kwiek on January 15, 2008, as set forth above)
and their drug testing policy; that Respondent’s had not given
the Union a written drug and alcohol policy but rather Re-
spondents took the Union’s proposal and added language that
indicated that it would not be grievable; that the Union did not
agree to Lerner’s proposal; that the parties did not reach agree-
ment on any of the package proposals or management rights
that day; that the parties did not reach any tentative agreements
that day; that he advised Lerner and Kipp that he would not be
able to attend the scheduled April 1, 2008 bargaining session
because there was a mandatory meeting for union employees in
Chicago; that they discussed alternate dates and the only one
that the Employer would agree to was April 16, 2008; and that
this session lasted 4 hours or less.
On April 15, 2008, Neimark received a telephone call from
Lerner. Neimark testified that the parties were supposed to
meet at Galesburg on April 16, 2008; that Lerner called to say
that his car had broken down, it was in the shop, he was going
to have to cancel the April 16, 2008 bargaining session, and he
would get back to him; that he suggested to Lerner that he rent
a car or use public transportation, and Lerner said that he would
get back with him; and that General Counsel’s Exhibit 15 is an
exchange of emails he had with Lerner on April 15 and 16,
2008, regarding Lerner’s car problem.
Lerner testified that he canceled the April 16, 2008 session
“due to my car being unable to start at the end of the day, and I
wasn’t sure if I could make it the next day, so I cancelled the
meeting.” (Tr. 358.) Respondent’s Exhibit 8 is a document on
the letterhead of Cal-Pete Service of Chicago, Illinois, with
“Lerner, M” on the “NAME” line, “4/15/08” on the “DATE”
line, and with “DOESN’T START—STARTER
CONNECTION CLEANED” for $25 under the “DESCRIP-
TION OF WORK PERFORMED.” “Paid C.C, 4–16–08” is
handwritten on the document and there appears to be a signa-
ture with this notation.
On cross-examination, Lerner testified that, when asked if
the car did not start how it got to the service facility, the car did
not start and 4 hours later, at 7 p.m. he went back and it did
start; that on April 15 he got a telephone call from his wife who
told him that the car does not start and it in on Devon Avenue;
that when he first went to the car it would not start; that when
he returned to the car 4 hours later it started and he drove it to
the mechanics shop and left it there overnight; that a night per-
son took the keys and told him that a mechanic would look at
the car in the morning; and that he and his wife had switched
cars on April 15 and the car with the starting problem was actu-
ally his car. As noted above, General Counsel’s Exhibit 15 is an
exchange of emails between Lerner and Neimark regarding
Lerner’s alleged car problem. The exchange began with the
following:

From: “Michael Lerner”
To: ronniemark@gmail.com
Sent: 4/15/2008 1:34 PM

Just spoke to the mechanic, and they need to keep my car
overnight. Sorry, but we’ll need to cancel tomorrow’s meet-
ing.

Neimark replied and then Lerner sent the following email:

On Tue, Apr 15, 2008 at 5:08 PM Michael Lerner
wrote:
. . . .
CAMELOT TERRACE

1957
As I indicated to you on the phone, the mechanic
hasn’t been able to diagnose why my car didn’t start yes-
terday, and I might have to take it to another shop tomor-
row for diagnosis and repair. I simply cannot leave town
tomorrow.

Lerner further testified that the 1:34 p.m. email described above
does not contradict his testimony; that his wife called him about
2 (apparently referring to p.m.); that with respect to how he got
home from the gas station, which is less than a mile from his
office, on the night of April 15, 2008, “[m]y wife must have
picked me up”; and that he did not recall when he picked the
car up at the gas station.
General Counsel’s Exhibit 16 is an email Neimark sent to
Lerner on April 17, 2008, regarding what Neimark perceived to
be Respondents’ “Dilatory Bargaining.” The email opens with
“[y]our unilateral decision not to participate in the bargaining
session on Wednesday, April 16 is part of a pattern of behavior
in bargaining that has been dilatory and without good faith.” It
goes on for over a page describing what Neimark views as Re-
spondent’s dilatory practices. The email proposes adding addi-
tional all day (10 a.m. to 4 p.m.) bargaining sessions and indi-
cates that the Union is available on April 23, 25, 28, and 29,
2008, on May 1, 2, 5, 7, 8, and 9, 2008. Neimark also indicates
that after May 9, 2008, he was available nearly every weekday
to hold additional all-day sessions. He points out that the Union
still has not received the information requested on March 19,
2008, regarding drug testing, disciplinary actions, and new
hires at Galesburg. The email closes with the following:

We are expecting a prompt response to these proposed bar-
gaining dates and to all of our outstanding information re-
quests. If you fail to promptly respond to these demands, it is
our intention to file charges with the National Labor Relations
Board due to your continued pattern of dilatory bargaining.

General Counsel’s Exhibit 17 is Lerner’s April 18, 2008
email response to Neimark’s April 17, 2008 email. In the email,
Lerner indicates that there is no alternative spokesman to him;
that the Union canceled the April 8 and 22, 2008 sessions; that
he has a business to run and he cannot dedicate full days to
bargaining; that bargaining four times a month exceeds
“NLRB” requirements; that neither Camelot nor Galesburg
have ever been found guilty of unfair labor practices; that the
information sought took considerable time to gather, some has
been provided to the Union, and the remainder will be provided
to the Union shortly; and that the only day he can reschedule
the missed session is April 24, 2008, in Streator. Neimark testi-
fied that bargaining sessions were never scheduled for April 8
and 22, 2008.
On cross-examination, Neimark testified that Lerner did of-
fer April 24, 2008, to replace the April 16, 2008 session which
Lerner canceled but Lerner made the offer of April 24, 2008,
only after Lerner was put on notice that the Union was not
available on April 24, 2008.
General Counsel’s Exhibit 18 is an April 19, 2008 email
from Neimark to Lerner which reads as follows:

I gave you four days between now and April 30 . . .
[and] April 24 was not one of them. Please select from the
list. Your assumption that the only thing we have to do is
negotiate is simply false.
I am willing to negotiate either at one of the facilities
or anywhere you choose, including your office.

General Counsel’s Exhibit 19 is an April 21, 2008 email
from Lerner to Neimark which reads as follows:

As you’ve been told, negotiations require myself and
Debby Kipp to be there. At the short notice you provided
on Friday, Debby and I were only able to alter our sched-
ules to mutually find one date this week, to make up for
the date you cancelled. That was 4/24.
We therefore can only go back next week to the once a
week schedule we have attempted to keep. We can’t find
the time to meet twice a week, due to the necessity of run-
ning our businesses.

General Counsel’s Exhibit 20 is, as here pertinent, an April
24, 2008 email exchange between Lerner and Neimark. First,
Lerner advised Neimark “[w]e haven’t bargained over Camelot
in a long time, so we’d prefer to meet in Streator next Wed. at
2PM. Please confirm availability for that.” Neimark responded,
“[w]e have already posted notice and have had some commit to
being at the bargaining session in Galesburg.” And Lerner re-
sponded, “I can’t be in Galesburg next week, and you told me
the last time we met that you’re OK meeting in either place. It’s
also not fair to Camelot that they haven’t negotiated for a long
time.”
With respect to the April 30, 2008 bargaining session,
Neimark testified that it was held at Camelot in Streator; that he
and Lopez were present for the Union; that Lerner and Kipp
were present for management; that at this session Lerner indi-
cated that all of the tentative agreements that the parties had
previously signed were just for Galesburg and that he wanted to
go over all of them to approve them for Camelot as well; that
one of the items that Lerner wanted to reopen for further dis-
cussion was regarding settlements, namely that while language
had been tentatively agreed upon which indicated that settle-
ments which were agreed upon by the Union, the employee,
and the employer were binding, Lerner wanted to make it so
that the employer could make a binding settlement with either
the employee or the Union; that the Union objected to Lerner’s
proposal and further objected to the reopening of that agree-
ment, namely article 15 which was tentatively agreed to on
February 12, 2008; that the Union did not want employees to be
able to resolve grievances and set precedent for the rest of the
bargaining unit; that while the parties had also tentatively
agreed to language on February 12, 2008, regarding bringing
weapons into the facility, the Union allowed Lerner to modify
the language on April 30, 2008, but the Union objected to Ler-
ner attempting to bring up and modify things that had already
been “TA-ed”; that the parties discussed union security and
dues checkoff, with Respondents indicating that they were
agreeable to union security if the Union agreed to change the
period from 30 to 90 days for employees being required to join
the Union; that Lerner said that he was not going to agree to
check-off because “we are not a collection agency” (Tr. 90);
that dues checkoff is standard in almost every industry that he
knows of; that at 4:15 p.m. Kipp left and Lerner indicated that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1958
he had to get something for her from his car; that Lerner never
returned to the bargaining session; that the union representa-
tives waited for Lerner for about one-half hour and no one
came into the room to tell them that the session was over; that
the session lasted 2 hours and 15 minutes; that the parties did
not reach any tentative agreements in April 2008; and that this
was the only bargaining session in April 2008.
On cross-examination, Neimark testified that he was not sure
if it occurred at the April 30, 2008 session but at some point
management indicated that it wanted to split the contract they
were working on and making it into two separate contracts, and
thereafter management agreed that whatever was being said at
the sessions was being said for both facilities.
On redirect, Neimark testified that at least at one session af-
ter the session where management management agreed that
whatever was being said at the sessions was being said for both
facilities, Lerner indicated that management was only bargain-
ing for one facility at that subsequent session.
Kipp testified that she left the April 30, 2008 bargaining ses-
sion at 4:15 p.m. because she had a doctor’s appointment; that
she informed the Union of this at the beginning of this bargain-
ing session by announcing that “[t]his will be a shortened ses-
sion” because she had a doctor’s appointment (Tr. 262); and
that she thought that this session began at 1 p.m.
General Counsel’s Exhibit 21 is Neimark’s May 4, 2008
email to Lerner complaining about what occurred at the April
30, 2008 bargaining session and the fact that Lerner was only
willing to schedule 3-hour sessions. Neimark proposed that the
May 7, 2008 session at Galesburg begin at 9:30 a.m. and go
until 5 p.m. The email ends with the following:

Shortening the session is even more troublesome when you
suddenly indicate that the TAs we signed at previous sessions
only applied to one home, when all along we had been bar-
gaining both facilities together and you had agreed to do that
previously. Furthermore you insisted on re-opening settled is-
sues that we have signed TAs on and, having failed to con-
vince us that you should be allowed to regressively bargain,
you took the position that you will no longer TA individual
items or groups of items. We urge you to stop using tactics
clearly aimed at delaying agreement.

In a May 5, 2008 email to Neimark (GC Exh. 54), Lerner, as
here pertinent, indicated as follows:

. . ., If I spend 6 hours of driving time to travel to Galesburg
from Chicago, I need to get a few hours of my work done; be-
sides bargaining with you. We therefore must keep to the bar-
gaining schedule of 2 PM.
The TA’s that were previously done were clearly done
only for Galesburg Terrace. For that reason, the TA’s that
were done were only done on Galesburg’s proposed con-
tract.
. . . .
We have not regressively bargained. What has hap-
pened is that you haven’t been honest with us. We signed
on some items for Galesburg as TA’s, with the under-
standing from you that it wasn’t yet binding or concluded;
just a tentative agreement. You now are backing out of this
by stating that we’re bound by it, and we’re being regres-
sive. The dictionary defines tentative as “Not fully worked
out, concluded, or agreed on; provisional.”
If we can’t trust you because you lie to us, our bargain-
ing with you is worthless.
If you are also going to argue against the definition of
a word, what value is there to any contract you sign?
We need an agreed upon definition of a TA before we
agree to use them in the future.

Neimark testified that Lerner’s claim that they discussed that
“TA” does not mean a binding agreement is not true.
The next bargaining session was held on May 7, 2008, at the
Galesburg facility. Neimark testified that he, Lopez, Babcock,
and Cindy Campbell were present for the Union; that Lerner
and Kipp were present for management; that they started this
session off by giving Lerner a copy of the Union’s economic
proposal; that Lerner would not accept the copy of the Union’s
economic proposal, indicating that they were still talking about
noneconomics and he would not discuss economics until they
were done with noneconomics; that the Union asked Lerner to
discuss the Union’s economic proposals and Lerner turned the
Union down; that Lerner insisted that they were only talking
about Galesburg on that day; that the majority of this session
was spent talking about no call/no shows and tardiness; that
Lerner asked to discuss article 15, section 2 again, which lan-
guage had discussed at the last meeting in Streator that had
been “TA-ed” prior and Lerner wanted to change it again; that
Lerner wanted to change already agreed upon language so that
if an employee signed a settlement, it would not be precedent;
that the Union told Lerner that the language had already been
“TA-ed” but it would be taken under consideration in view of
an overall agreement; that Lerner took the position that the
employee should be able to agree to the settlement and the em-
ployee should not have to go through the Union to agree on it;
that they talked about another issue which had already been
“TA-ed,” on February 12, 2008, namely, rule 4 which had to do
with the safety of weapons issue; that Lerner did not give a
specific reason for why he wanted to reopen this issue; that he
told Lerner that the Union objected to reopening the weapons
issue tentative agreement but the Union would take it under
consideration; that the parties did not reach any tentative
agreements at this session; that the Union proposed May 20,
2008, for the next bargaining session and Lerner proposed May
29, 2008, in anticipation of a May 27, 2008 unfair labor prac-
tice hearing at the Board in Chicago concluding before May 29,
2008; that he proposed corresponding by email between ses-
sions but Lerner rejected bargaining by email; and that it was
fair to say that this session lasted no longer than 3 hours in that
it started at 2 p.m. and ended no later than 5 p.m.
Kipp testified that at the May 7, 2008 session Neimark hand-
ed an economic proposal to management; and that
“[m]anagement responded that we weren’t done with the none-
conomic issues, so therefore, there wasn’t a reason to go on to
the economics” (Tr. 265).
On cross-examination, Kipp testified that in her affidavit to
the Board, which she gave in June 2008, she indicated as fol-
lows: “I have written down that the parties were to meet on
May 7, 2008 at 2 p.m. in Galesburg. I do not remember any-
CAMELOT TERRACE

1959
thing particular that happened at that session” (Tr. 312); and
that she could not remember anything specific about the May 7,
2008 bargaining session.
On May 11 and 12, 2008, Neimark and Lerner engaged in an
exchange of emails (GC Exh. 56). Neimark, in his May 11
email to Lerner, indicated, as here pertinent, as follows:

. . . .
At our session on May 7, you refused to accept posses-
sion of our economic proposals. While we continue to ne-
gotiate over language items, we contend that it is also time
to begin to bargain economic items. Your outright refusal
to even accept documents is further evidence that you are
simply trying to delay bargaining.
. . . .
You refused to continue to schedule weekly bargaining
sessions and insisted that you were only going to meet
once every other week, despite your earlier promises that
we would meet every week until an agreement is reached.
I asked if you would be open to bargaining through email
correspondence between sessions and you indicated that
you were not open to this because you did not want to
have to type proposals and counters.
Your new position that (1) bargaining at each facility
is for that facility only and that (2) you will only bargain
every other week, combined with your continuing obsti-
nance about only meeting for short periods of time means
that you are agreeing effectively to only bargain for (less
than) three hours a month for each facility. This is not ac-
ceptable.

The May 11, 2008 email, part of General Counsel’s Exhibit 56,
also appears in the record as General Counsel’s Exhibit 22. In
his May 12, 2008 reply, Lerner, as here pertinent, indicated as
follows:

. . . .
While we would love to quickly finish the bargaining
and sign a contract with you, we simply can’t do it every
week. We’ve now decided to negotiate every other week,
because our business needs were suffering, from devoting
so much time to weekly negotiations. Our business simply
needs our attention on a regular basis.
. . . .

On May 14, 2008, Neimark sent an email to Lerner (GC
Exh. 55), responding to charges made by Lerner regarding the
negotiations.
With respect to the May 22, 2008 bargaining session,
Neimark testified that it was held at Camelot; that he, Lopez,
and union employee Lori Frascone were present for the Union;
that Lerner was present for management; that Lerner stated that
Kipp was not able to make this session and management was
not going to be able to decide anything without her presence,
unless it was something they had already discussed; that he did
not recall the time of day that this session started; that the par-
ties discussed the Galesburg no call/no show policy change that
had been requested at the previous session, when actions taken
pursuant to the drug and alcohol policy would be grievable, no-
strike/no-lockout, and arbitration; that the Union never received
a written drug and alcohol policy from Lerner; that Lerner indi-
cated that using the drug and alcohol policy he “thought . . . it
was his right to target people if they were union supporters
. . . .” (Tr. 100) and he should be able to terminate them even if
the person was tested for illegitimate reasons; that he believed
that before union certification Respondents had random drug
and alcohol testing and employees were also tested when there
was a reasonable suspicion; that with respect to no-strike/no-
lockout, Lerner took the position that the grievance policy
would not apply to this, and Lerner took the position that even
if the Union did all it could to stop a strike, the Union should be
held liable for the costs to the employer; that the parties reached
tentative agreements with respect to several sections of article 7
of the Union’s proposed contract, sections 3, 4, and 5 on pages
12 and 13 of General Counsel’s Exhibit 51, namely, a bulletin
board in the facility for purposes of union notices, release for
steward training, and time for union orientation of new em-
ployees; that while Lerner rejected arbitration at this point in
time, he did not present the Union with any kind of written
counterproposal on his peer review, which was what he was
trying to establish in place of arbitration; that the parties dis-
cussed the fact that there would not be a meeting on May 29,
2008, because Lerner would still be in the Board hearing in
Chicago; and that the parties discussed meeting on June 12,
2008, in Galesburg.
General Counsel’s Exhibit 23 is a May 25, 2008 email from
Neimark to Lerner. The email opens with the following:

On Wednesday, May 21, 2008 at 1:15 pm, the union
hand delivered to Lynn, the secretary at Galesburg Ter-
race, our intention to commence picketing of your facility
on Saturday, May 31 from 1:30–2:30 pm. Please under-
stand that our intention to picket is necessary only because
of your continued dilatory and surface bargaining.
These bargaining tactics on your part were again evi-
dent at our session on Thursday, May 22 at Camelot Ter-
race.

Neimark then summarizes what transpired at the May 22 bar-
gaining session, indicating that at this session Lerner stated that
“[i]f I were to target a person for their union activity and test
them and they turn out dirty, I should have the right to termi-
nate the employee. So what if I targeted them for their union
activity? They were dirty.” Neimark then indicates that “[t]he
union has made multiple requests for copies of drug testing
documentation from Galesburg . . . and Camelot . . . . You have
yet to provide such documentation.” Neimark also requests
information regarding who conducts and determines whether
the drug test was positive or not. The email then indicates as
follows: “[t]he union continues to object to your continued
refusal to negotiate over economic issues.” And the email fin-
ishes with the following:

Finally, your continued refusal to negotiate for more that 2.5
hours at any time has made it difficult for us to make pro-
gress. On top of that, it is unacceptable that you have can-
celled our session which was scheduled for next Thursday. It
is not acceptable that our next scheduled session will be on
June 12, a full 3 weeks away. If you continue to schedule ses-
sions that far apart and continue to insist that the bargaining at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1960
each session only covers the facility at which we are bargain-
ing (even though you have taken the liberty to bring up issues
you want to bring up about Galesburg while bargaining at
Camelot), your are agreeing to only bargain for 2.5 hours eve-
ry six weeks. This despite our earlier commitment to bargain
every week until we reach a mutual agreement.
. . . .

General Counsel’s Exhibit 24 is Lerner’s May 25, 2008
email response to Neimark. As here pertinent, it reads as fol-
lows:

It is quite evident that you have no interest in bargain-
ing in good faith with us. All you are interested in is creat-
ing a paper trail, so you can create and file phony and con-
trived NLRB Unfair Labor charges against us. I’m here to
tell you that your tactics won’t work. . . .
. . . .
. . . . If an employee is found positive for drugs by an
agreed upon lab, no matter under what circumstance, they
cannot be employed in our nursing home. For that reason I
gave you a hypothetical — even if we targeted somebody
because we didn’t like their union activity, and they tested
positive, we have to terminate them for the safety of our
patients, and per IDPH rules. So, don’t throw it back at me
accusingly; it was only a hypothetical case.
. . . .
You claim you made “multiple requests” for drug test-
ing history and our Peer review policy—We have no rec-
ollection of any request of drug testing history. Please be
specific as to what you want, and we’ll get it to you next
week after the hearing. The Peer review policy was given
to you a long time ago. So please don’t create fictitious
shortcomings of ours, to build up a phony case.
. . . .
The lack of progress is not because of a lack of time;
it’s because of your lack of commitment to the process.
Your intransigence on many items, and your agreeing to
items only if we agree to others, wastes time. If we agree
on something we should TA it, to get it out of the way, and
make progress by moving forward.
You clearly know that we can’t be in 2 places at the
same time. If your union calls us to a hearing on 5/27–
5/30, in Chicago at the NLRB, we obviously cannot be
there to negotiate with you that week. If you wouldn’t
waste our time with contrived charges, we would be meet-
ing with you more regularly. I also can’t necessarily be
there the following week. If I have to catch up on what
didn’t get done that week. We’ve agreed to meet every
other week, as the NLRB requires. In addition, if circum-
stances change, such as IDPH surveys, we have no choice
but to reschedule.

On cross-examination, Neimark testified that he understood
Lerner’s statement regarding targeting a union activist for drug
testing to be a hypothetical.
General Counsel’s Exhibit 25 is a May 26, 2008 email from
Neimark to Lerner, which indicates, as here pertinent, as fol-
lows:

. . . .
The problem has consistently been that you have only
discussed the issues you want to discuss and you have
dominated the short time that you have agreed to meet
with us to go over those same issues, including some
which had already been TAd, until we have no more time.
You are the only party who has refused to even accept a
proposal. You are the only party who has refused to bar-
gain on any issue.
. . . .
We have not agreed to management rights. We have
said that we will agree to it if you agree to the other items,
we would agree to it in return. Quid pro quo is part of bar-
gaining in good faith.

General Counsel’s Exhibit 26 is a June 1, 2008 email from
Neimark to Lerner which reads as follows:

It has come to our attention that you are having diffi-
culty hiring CNAs and other bargaining unit employees at
Galesburg Terrace. Particularly for CNAs, your current
hiring rate of $7.75 is drastically below market. It has also
come to our attention that due to your difficulty recruiting
CNAs, you have had to mandate staff and utilize costly
overtime. It has also come to our attention that manage-
ment at the facility has been telling employees that if the
union was not at the facility, the facility would give across
the board pay raises and that CNAs would start at $9.75.
The union is proposing that effective immediately,
Galesburg Terrace raise the starting pay of CNAs to $9.75
per hour, as has been promised by your facility manage-
ment, and that all current CNAs who are paid less than
$9.75 per hour be increased to that rate. We are also pro-
posing that other employee pay rates be increased to $8.00
per hour.
Other pay increases and economic benefit improve-
ments will be proposed (as we have attempted to provide
then to you already—but you refused to accept the docu-
ments), but for now we believe that these wage improve-
ments are necessary immediately and without haste in or-
der for the facility to be able to recruit and retain staff.

Neimark testified that the Union called this its emergency pay
proposal in that the minimum wage in Illinois was set to go up
on July 1 which would result in other employees in that facility
with less training and experience reaching the Galesburg
CNAs’ pay level.
General Counsel’s Exhibit 30 is a June 2, 2008 email from
Lerner to Neimark which reads as follows:

While we sincerely appreciate your concern, we be-
lieve we can competently handle our staffing issues, with-
out your assistance. In addition, we are not aware of any-
body from “management” who stated what you are attrib-
uting to them. Galesburg Terrace’s policy is that until we
settle with you on a contract, we will handle all employee
hiring and raises issues, in the same fashion it has always
been handled.
The drug testing history from Galesburg Terrace was
faxed to you weeks ago together with the “tardy” history.
CAMELOT TERRACE

1961
It was only one sheet of paper, so perhaps you overlooked
it. Either way, we will resend it to you today.

General Counsel’s Exhibit 27 is a June 2, 2008 email from
Neimark to Lerner which reads as follows: “We are requesting
a printout of hours worked by each employee at Galesburg
Terrace for every pay period from January 1 to current.”
On cross-examination, Neimark testified that he did receive
this information after he made a couple of objections.
General Counsel’s Exhibit 28 is an exchange of June 2, 2008
emails with, as here pertinent, Lerner advising Neimark as fol-
lows: “Since we’re not yet discussing economics, I see no rea-
son for this. Our staff simply doesn’t have the time to produce
paperwork for you, that isn’t immediately necessary for negoti-
ations.” Neimark responded as follows: “We are discussing
economics. Please send the requested information.” Later that
same day, as set forth in General Counsel’s Exhibit 29,
Neimark further responded as follows: “This is not only an
economic issue. It also relates to working conditions.”
General Counsel’s Exhibit 31 is a June 6, 2008 email ex-
change between Lerner and Neimark. First, Lerner indicated,
“We can meet on 6/12 in Streator. Please confirm your availa-
bility.” Neimark responded, “We are meeting in Galesburg on
6/12.” Neimark testified that the parties had already set a bar-
gaining session for June 12 (Wednesday), 2008, in Galesburg
and Lerner was trying to change it to Streator.
General Counsel’s Exhibit 32 is a later June 6, 2008 email
exchange between Lerner and Neimark. First, Lerner indicated
as follows: “[w]e can’t meet in Galesburg next week, due to the
Jewish holidays on Mon and Tues. If you insist on Galesburg, it
would have to be the following [The exhibit does not have the
entire message]” Neimark replied as follows: “[s]o you can
meet in 6/12 in Streator and in Galesburg the following week.
We are available on Tuesday, June 17, Wednesday, June 18,
and Thursday, June 19.” Lerner then advised Neimark, “[y]ou
must have a learning disability—you put your words into my
mouth! We have told you countless times that our business
need don’t allow us enough time to meet more than once every
2 weeks. For your clarification it’s either or. Either 6/12 in
Streator or 6/17 in Galesburg.” Neimark then responded as
follows: “[w]e had an agreement that we were going to meet at
Galesburg Terrace on June 12. That is when and where we
expect to meet. If you are going to cancel that commitment,
then we will meet the following week in Galesburg. We once
again object to your continuing dilatory bargaining tactics.”
General Counsel’s Exhibit 33 is a June 10 and 11, 2008 ex-
change of emails between Neimark and Lerner. First, Neimark
asked Lerner, “Are you still available to meet in Streator on the
12th? If so, I would like to meet with you then and then in
Galesburg on either 6/23 or 6/24. I have some ideas that may
break the logjam on the noneconomic issues and would like to
discuss them with you sooner rather than later.” Lerner replied
as follows: “[u]nfortunately, we cannot make it anymore due to
previous commitments. However, we are more than eager to
break any logjams and finish up the negotiations with a mutual-
ly beneficial contract.” Neimark then asked Lerner “[f]or next
week’s session (6/17) in Galesburg, would you be open to
meeting earlier (maybe from 9-noon)? Alternatively, would you
be able to reschedule to the next day (Wednesday 6/18)?” Ler-
ner replied, “[w]e could accommodate you and switch to 6/18.”
With respect to the June 18, 2008 bargaining session,
Neimark testified that it was held at Galesburg; that he, Lopez,
some staff members, and some employees were present for the
Union; that Lerner and Kipp were present for management; that
the parties discussed the Union’s emergency pay proposal; that
Lerner said (a) that he did not see any emergency and he did
not see any reason to raise the dollar amount just because the
minimum wage went up; (b) just because the governor decided
to raise the minimum wage by a dollar the value of their work
had not increased at all; and (c) his position was that the mini-
mum wage was sufficient for CNAs at Galesburg; that Lerner
proposed adding language to the contract which would forbid
the Union from leafleting 5000 feet from the facility; that 5000
feet is almost a mile; and that

leafleting would be the offense that would constitute first of-
fense discharge, not only for the employee of the facility, but
if it was a union person doing it. The union would be required
to fire them for leafleting within a mile. And then he [Lerner]
indicated, I am not going to sign a contract without this.

Neimark further testified that the parties discussed another
change to rule 23 about posting inflammatory or derogatory
items, and removing rule 22 from the package proposal and
agreeing to package 1; that the parties did not agree on package
proposal 1 because they could not agree on any quid pro quo
involving the management-rights clause; that at this bargaining
session Lerner or Kipp gave the Union Respondents’ written
proposal on grievance resolution (GC Exh. 34); that the parties
did not discuss this proposal at this session; that Lerner pro-
posed that instead of arbitration there would be a peer review
process in which the employer would select three peers to de-
cide whether a grievance is valid or not, that decision would be
final and binding, and the Union would not be entitled to
choose any of the peers; that the parties did not reach any tenta-
tive agreements at the June 18, 2008 session; that this session
lasted no more than 3 hours and 15 minutes; and that the parties
already a bargaining date scheduled for July 1, 2008, and Ler-
ner would not commit to any additional date beyond July 1,
2008, saying that he would not schedule anything beyond a
week or two.
On cross-examination, Neimark testified with respect to the
tentative agreement regarding the settlement of grievances be-
ing reopened by the employer, that the Union objected but it
discussed this issue with the Employer under objection; that
while management stated that if its proposal to have the Union
agree to not leaflet within 5000 feet of Respondents’ facilities
were determined to be illegal the proposal would be rescinded,
management proposed it again a month later; and that manage-
ment never rescinded its proposed 5000 foot of facility leaflet-
ing prohibition.
General Counsel’s Exhibit 35 is a June 18–19, 2008 email
exchange between Neimark and Lerner. First, Neimark advised
Lerner as follows:

The union continues to object to your continued practice of
dilatory bargaining. The union attempted to schedule several
bargaining sessions, and you refused to do so. You would on-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1962
ly schedule one additional session. You then indicated that
you would not schedule another session because you can’t
plan that far in advance. The result is, since you have taken
the step of only agreeing to one session every two weeks and
only agreeing to bargaining over the facility that you are at,
that you have not agreed to any additional sessions of bargain-
ing for Galesburg Terrace. In addition to your consistent posi-
tion of meeting for no more than 3 hours an any time, despite
our continued requests to bargain for longer periods, these ad-
ditional infractions are further evidence of your efforts to de-
lay the negotiation of a contract.

Lerner replied, as here pertinent, as follows:

. . . .
To my knowledge there is no NLRB requirement of
scheduling bargaining sessions, far in advance, as you’re
requesting. It is extremely difficult committing to dates far
in advance in our business, since emergencies and unex-
pected events constantly occur in nursing homes. If I
commit to a date far in the future, and then need to cancel
it, you’ll then file NLRB charges like you recently did. So
it is considerably safer for us to commit to only the next
meeting, so that we have a better idea that we can attend it.
Unless you can show me that the law states differently,
we will schedule the following session, only at the conclu-
sion of each meeting. Since we are bargaining every 2
weeks, we surely can find a mutually agreeable date two
weeks later, as we did yesterday.
Instead of focusing on creating a paper trail for your
next trip to the NLRB to file ULP charges, it should be a
lot more productive for you to focus on working out our
differences. Yesterday we offered to sign off on numerous
agreed upon items, but you refused, since you only wanted
us to agree to additional things. That’s not the way to get
resolutions to issues, or to complete a contract. In fact,
that’s what is delaying things here; not our 1/2 day ses-
sions. As [I] told you numerous times, we cannot travel 4-
6 hours to a facility, in order to meet with you for an entire
day. We must have adequate time to conduct some facility
business while we’re there.

Regarding the July 1, 2008 bargaining session, Neimark tes-
tified that it took place at Camelot; that he, Lopez, and
Frascone were present for the Union; that Lerner and Kipp
were present for management; that the session started at 2:43
p.m.; that the parties discussed arbitration again with the Union
approaching it not in terms of discipline, which Lerner was
objecting to, but rather in terms of contractual issues that are
nondisciplinary; that the possibility of loser pays all for the
arbitration was discussed; that the parties caucused from 3 to
3:40 p.m., and then they caucused again at 3:55 p.m.; that when
the parties returned at 3:40 p.m. the Union presented Respond-
ents with some modifications to the grievance and arbitration
proposals; that the parties discussed the peer review arbitration
procedure; that while the parties had already tentatively agreed
upon the language in article 13 of the Union’s proposed con-
tract which spoke to discipline for violations of the work rules
for just cause, Lerner made another proposal at this session, and
then he withdrew his proposal before the end of the session;
that while the parties agreed upon July 22, 2008, as the date for
the next meeting, they did not pick a location; that this session
lasted 2 hours and 15 minute; and that the parties did not reach
any tentative agreements at this session.
General Counsel’s Exhibit 36 is a July 2, 2008 email from
Neimark to Lerner which reads as follows:

It has now been over a month since the union submitted our
emergency pay proposal for Galesburg Terrace to you. You
have not responded to the proposal, despite your promise at
our bargaining session two weeks ago that you would. If the
facility has not implemented the emergency pay proposal by
Saturday, July 12, 2008, and if you continue to engage in your
ongoing dilatory bargaining, it is our intent to commence
picketing and aggressive leafleting at Galesburg Terrace be-
ginning at 12:30 pm on Saturday, July 12, 2008 with possible
intermittent continuation of picketing and leafleting at Gales-
burg Terrace and possible intermittent leafleting at all Gem
facilities until you have met our demand.
. . . .

General Counsel’s Exhibit 37 is a July 2–3, 2008 email ex-
change between Lerner and Neimark. First, Lerner, as here
pertinent, indicated as follows:

Our response to your request, is that we do not consid-
er there to be any emergency right now. As your own
member Steph[anie] Woetz, commented last time, all the
vacant positions were filled without any difficulty, as 6
people were hired 2 weeks ago.
Therefore, the wage request will be considered and ne-
gotiated, as part of the economic portion of our contract.
Since we are making substantial progress during each ne-
gotiation session, that should be happening pretty soon.
Also, please don’t threaten me. You can picket and
leaflet all you want, and I don’t care, as long as it’s off fa-
cility property. By now you should know that I will bar-
gain fairly with you, and we will ultimately arrive at an
equitable contract. But I won’t be swayed by threats or in-
timidations.

Neimark replied as follows:

There was no blame involved. I simply was comment-
ing that we did not have a response. We have one now,
and it is a response that is completely unacceptable.
As of last Tuesday, the minimum wage increased to
$7.75. I understand you are opposed to the state requiring
employers to pay workers a minimum standard, but the
fact remains that CNAs at Galesburg Terrace are now the
lowest paid CNAs in the entire state of Illinois. I do not
know of any other facility, certainly in the Galesburg area,
where the pay is that low.
Stephanie did correctly indicate that those positions
were filled, but you obviously missed her overall message.
She clearly sated that CNAs are feeling very pressured,
many are leaving, and she doesn’t know how long some of
these new hires will last.
Since you don’t mind us leafleting, I will take this note
as a withdrawal of your proposal to change Rule 22.

CAMELOT TERRACE

1963
Then Lerner, as here pertinent, replied as follows:

I did not agree to withdraw our proposed change to Rule 22. I
only intended to convey, that your threats to us are meaning-
less, and that negotiations would go quicker and smoother if
you would bargain in good faith. . . .

General Counsel’s Exhibit 38 is a July 10–11, 2008 email
exchange between Neimark and Lerner. First, Neimark pro-
posed that the July 22, 2008 meeting be held at Galesburg.
Lerner replied the meeting would need to be in Streator, he was
going to be in Galesburg the week of July 14, Neimark had
indicated that he was unable to meet that week, and he, Lerner,
did not have the 6 hours driving time every week to drive to
Galesburg. Neimark replied as follows: “[w]e gave you two
dates that week to meet and you turned both of them down, and
then went on to say that you were too busy that week. We then
scheduled the 22nd.” Lerner then replied as follows: “I never
said I was too busy; I’d committed to meet every second week,
and I told you I was available on the 15th or 16th. You’re the
one who turned down a meeting next week; you said you were
going to be away.” Neimark replied as follows: “[t]he 16th is
one of the days that I offered and you rejected at the last bar-
gaining session. We continue to be ready to bargain with you
on the 16th in Galesburg. We propose bargaining on the 16th in
Galesburg and on the 22nd in Streator.” Lerner then replied as
follows: “I didn’t reject it then; you suggested to skip the week.
Unfortunately I now have the 16th booked. So it’ll have to be
the 22nd in Streator.”
General Counsel’s Exhibit 39 is a July 20–21, 2008 email
exchange between Neimark and Lerner regarding the forward-
ing to Lerner of the Union’s proposal for grievance procedure.
Kwiek testified that she again became involved in the Came-
lot and Galesburg bargaining sessions on July 22, 2008, when
Neimark, who was assigned as chief negotiator, was out of
town; that the Union was represented at this session by her,
Lopez, and Frascone; that management was represented by
Lerner and Kipp; that the parties discussed (1) the fact that
Lerner would agree to language at the bargaining table and then
propose new language on those same topics at a later session,
and (2) the Union had problems with the fact that the parties
were not meeting weekly; that Lerner said that what she was
saying “that those were lies” (Tr. 35); that she told Lerner “that
it was difficult working with someone who has a mental illness
and won’t acknowledge that they have a problem” (Tr. 36); that
she supposed that she lost her temper at the time; that the par-
ties then discussed whether Lerner agreed to language and then
changed his mind and the bargaining schedule; that the parties
discussed the grievance and arbitration procedure for about 10
minutes; that Lerner and Kipp then left the room; that after they
were out of the room for about 5 or 10 minutes, Kipp came
back into the room and indicated that they were done; that the
meeting lasted a total of about 30 to 45 minutes; that the meet-
ing was scheduled for 4 hours; that it was the Employer’s rep-
resentatives who walked away from the table; and that the par-
ties did not reach any tentative agreements at this session.
On cross examination, Kwiek testified that at the July 22,
2008 session the parties discussed grievance and arbitration
language that had nothing to do with the master contract; and
that what was discussed “had to do with not having arbitration
and having an employer-sponsored panel that would decide if
something . . . should be resolved but it would not involve a
third party because that’s not—that has no foundation in the
master contract” (Tr. 47).
Kipp testified that at the July 22, 2008 session Kwiek stated
that they were negotiating one contract and Lerner said that
Camelot and Galesburg were separate entities and they were
negotiating two contracts; that, as she recalled, Kwiek then
called Lerner a liar; that Lerner asked her if she was calling him
a liar; that Kwiek told Lerner that he was mentally ill and she
hoped that he did not have a wife or children; and that man-
agement did not bargain for the rest of the session but rather
there was a break and at the end of the break she told Kwiek
that she “felt that nothing more could be accomplished because
of the negative ness of how the contract negotiations had
turned, due to the exchange” (Tr. 276).
General Counsel’s Exhibit 40 is a July 25–27, 2008 email
exchange between Lerner and Neimark. First, Lerner asked,
“[c]an we schedule our next bargaining session for 8/7 in
Streator?” Neimark replied as follows: “[i]f you are willing to
negotiate one contract for both facilities, then we are fine with
bargaining in Streator. I will check on the date with others in-
volved.” Lerner replied as follows:

Please don’t waste your time or mine by continuing to
bring up this issue of “one contract for both facilities.” It is
a non-starter, and will never happen. The law requires us
to negotiate for each building, since they are separate cor-
porations, and we will continue to do that. We will never
make one contract for both buildings, as we told you from
day one.
I won’t be able to be in Galesburg until the following
week. I’m willing to accommodate you by making it a
“Galesburg negotiation session” in Streator, on 8/7 if you
wish. However, if you insist on the location to be in
Galesburg, I’m only available there, he following week on
8/14

General Counsel’s Exhibit 41 is an August 1–7, 2008 email
exchange between Neimark and Lerner. First, Neimark indicat-
ed as follows: “[w]e propose that we bargain next in Galesburg
on the 13th or 14th.” Lerner replied as follows: “[a]re you
meaning to cancel the 08/07 scheduled meeting, and replace it
with 8/14?” Neimark replied as follows: “I can also bargain on
the 7th, but we must bargain in Galesburg sometime in the next
2 weeks.” Lerner replied: “So we’ll do the 7th in Streator and
the 14th in Galesburg.” Neimark then indicated: “[w]e are pro-
posing that the session begin at 9:30 am and go through 5 pm.”
Lerner replied: “[u]nfortunately, due to the long distances in-
volved, we won’t be able to begin before 2PM. As you’re
aware, it takes over 3 hours to get there.” Neimark replied:
“[t]hat is just not acceptable, unless you are agreeing to bargain
until 10 pm.” Lerner replied: “[w]e can’t go past 5PM, but we
can start at 1PM to accommodate you.” Neimark replied:
“[y]ou had said noon when we set this meeting up in the fist
place. Why do you always have to back away from verbal
commitments? I will be there by noon and hope that you will be
there too.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1964
With respect to the August 7, 2008 bargaining session,
Neimark testified that it was held at Camelot; that he and Lopez
were present for the Union; that Lerner and Kipp were present
for management; that the parties spent most of the session dis-
cussing the grievance and arbitration policy; that the parties did
not reach any kind of tentative agreement; that at the end of the
session Lerner gave the Union three written proposals regard-
ing (1) the bulletin board language in that Lerner again wanted
to modify the language to prohibit the Union from handing out
materials closer than 5000 feet from the facility; (2) Lerner
wanted the Union to exclude the possibility that it would ever
organize clerical, professional, or licensed or degreed employ-
ees and Lerner said, “[w]e are not going to sign a contract
without this;” and (3) Lerner wanted to modify language that
the parties had already “TA-ed,” namely article 13 in that Ler-
ner indicated that for infractions not listed in the work and safe-
ty rules the employer could discharge or discipline employees
without cause since the state is an at-will State; that the parties
had already scheduled another session for August 14; and that
the session lasted less than 4 hours.
Kipp testified that at the August 7, 2008 bargaining session
management gave her written proposal (GC Exh. 53(w)), to the
Union. The typed proposal reads as follows:
ARTICLE 13
The Employer may discharge or discipline employees accord-
ing to the Work and Safety Rules and Regulations. For infrac-
tions not listed there, Employer may discharge or discipline
employees without cause, as IL [Illinois] is an employee-at-
will state.

Kipp testified further that Neimark agreed to her proposal that
“the Employer may discharge or discipline employees without
cause.” (Tr. 284 and 285.) [Neimark’s initials do not appear on
General Counsel’s Exhibit 53(w)]; that at this session she also
gave Neimark a typed proposal (GC Exh. 53(u)), which—as
here pertinent—proposed that any union leafleting would be
done no closer than 5000 feet from the facility property; that
Neimark indicated that the law allowed leafleting as long as
those leafleting were not on the employer’s property; that she
told him that if that was the law, she would agree; that she nev-
er submitted this proposal to Neimark again; that at this session
she made a verbal proposal to the Union “[t]hat LPNs not be
allowed to be Unionized” (Tr. 293); that she told Neimark that
she did not believe that LPNs should be unionized, LPNs were
considered supervisors, and she did not believe that they be-
longed in a bargaining contract; and that LPNs were not includ-
ed in the master contract that the Union gave to management.
Lerner testified that at the August 7, 2008 bargaining session
one of the issues discussed was licensed practical nurses
(LPNs); that management advised the Union that it was aware
that LPNs were “trying to get unionized” (Tr. 372) and “[y]es”
management indicated to the Union that Galesburg and Came-
lot did not want LPNs ever to be represented by the Union at
either Galesburg or Camelot (Id at 373); that Neimark said that
LPNs have the right to attempt to organize; that he then said,
“[w]ell, if that is your opinion, then we are not going to push it”
(Ibid.); and that he never brought this proposal up again.
General Counsel’s Exhibit 42 is an email Neimark sent to
Lerner later on August 7, 2008, complaining about Lerner at-
tempting to readdress sections of the contract that had already
been discussed. Neimark also advised Lerner that economics
would be discussed at the next session and he was re-sending
Lerner the Union’s economic proposals Lerner refused to ac-
cept when the Union attempted to give them to him months
ago.
General Counsel’s Exhibit 43 is an August 11, 2008 email
exchange between Lerner and Neimark. First, Lerner indicated:
“[w]e would appreciate if the Galesburg negotiating session
were schedule from 1PM to 4PM.” Neimark replied: “[o]ur
position is that we should be bargaining for 8 hours. However,
if you insist on only 3 hours, we do not object to those 3 hours
being from 1–4.”
With respect to the August 14, 2008 bargaining session,
Neimark testified that it was held at Galesburg; that he Lopez,
Frascone, and named bargaining unit employees were present
for the Union; that Lerner and Kipp were present for manage-
ment; that the Union asked to discuss economics and Lerner
insisted on talking about his request to exclude LPNs from any
future potential organizing efforts; that Kipp read a list of is-
sues to the Union’s bargaining team, namely (1) that article 4,
which is union security and checkoff, was rejected; (2) they
were going to agree for employees to take time off to work for
the Union but they wanted to reduce it from 90 to 30 days of
paid union leave; (3) they were proposing 4 and 40 overtime
whereas the Union’s initial proposal had an 8 and 80 overtime
system; (4) they wanted vacation based on normally scheduled
hours rather than 40 hours a week for article 10, section 1; and
(5) they insisted that the Union needs to be held responsible for
strikes even if the Union takes action to stop a strike; that man-
agement said that some of their proposals applied to Camelot as
well as Galesburg but management did not specifically indicate
which proposals also applied to Camelot; that the parties agreed
to the modification of article 7, section 6, the Union countered
on vacations, and then the parties moved on to talking about the
economic package that is attached to his bargaining notes for
that day; that the parties discussed the meals, voting time,
health and welfare, and pension; that the parties did not reach
agreement on any of the economic proposals at that session;
that the Union offered nine dates for the next bargaining ses-
sion with two of the proposed sessions, August 26 and 27,
2008, beginning after 5 p.m.; that Lerner said that the only time
he was available was August 26 and 27 during the day; that the
parties were not able to schedule anything further than their
August 20, 2008 date; and that this session lasted less than 4
hours.
General Counsel’s Exhibit 44 is an August 17–19, 2008
email exchange between Neimark and Lerner. First, Neimark
indicated as follows:

We are confirmed for Wednesday, August 20 at 1 pm at
Camelot Terrace. We continue to propose that the next ses-
sion at Galesburg Terrace be scheduled for one of the follow-
ing: Anytime on August 25, 28, 29, 30, 31 or after 5 pm on
August 26 or 27. We propose that an additional session be
held in Galesburg or Streator on September 2 or 3. We con-
CAMELOT TERRACE

1965
tinue to believe that we could finish this much quicker and
save time and money in the long run for both parties if we
were to agree to 7.5 hour bargaining sessions, as recommend-
ed by NLRB Region 33. . . .

As here pertinent, Lerner replied as follows:

. . . please don’t offer to meet with us after 5PM, when you
know it’s being disingenuous. We work very hard 8-10 hours
a day, and are entitled to go home to our families afterwards.
We aren’t obligated to work after 5PM, just because you have
meetings scheduled on Tuesday, the day we always meet.
Last week we offered you to meet on our regular
Tuesday, on 8/26 but you refused to meet at a normal
hour. We also offered you 8/27, and you refused to meet at
a normal hour.
My schedule is very tight the next few weeks. Howev-
er, in order to accommodate your meetings next week, I
might be able to change our schedule to meet with you on
Thursday 8/28 in Galesburg, as long as the following
meeting would be on 9/8 in Streator. If this works for you,
let me know.

Neimark replied, asking, “[w]hat time are we starting tomor-
row,” and Lerner then replied, “[w]e agreed last week to meet
at 1 PM.”
General Counsel’s Exhibit 45 is an August 18–19, 2008
email exchange between Neimark and Lerner. First, Neimark
opens his email with “I think that 8/20, 8/28, and 9/8 might
work, if you agree to the following.” Neimark then proposes
scheduled sessions indicating that the parties should be able to
reach settlement in early September 2008. Lerner replied, “I
don’t negotiate specifics over the internet; I simply offered you
date to set up a negotiating meeting with you. Please respond to
it, before the available dates get booked.”
With respect to the August 20, 2008 bargaining session,
Neimark testified that it was held at Camelot; that he, Lopez,
and union employee Yvette Cagle were present for the Union;
that Lerner and Kipp were present for management; that man-
agement presented a new written attendance policy (GC Exh.
47), and the parties discussed (a) no call/no show further; (b)
compromised language; and (c) meals again; that, with respect
to General Counsel’s Exhibit 46, the parties tentatively agreed
to the following language: “one no call/no show results in ter-
mination with the exception of a situation that rendered it im-
possible for the employee to call in” but Lerner wanted to add
that “[t]his determination is solely in the hands of manage-
ment”; that the Union did not agree to allowing management
alone to make this determination; that the Union objected to (1)
the short time of the bargaining sessions; (2) bargaining ses-
sions being two weeks apart; and (3) management not giving
the Union written responses; that Lerner said that he did not
give written responses, and he would only negotiate face-to-
face; that the parties did not reach any tentative agreements at
this session; and that the session lasted 4 or less hours.
Regarding the August 28, 2008 bargaining session, Neimark
testified that it was held at Galesburg; that he, Frascone and
named bargaining unit employees were present for the Union;
that Lerner was present for management; that Lerner said that
Kipp had prepared a proposal on tardiness but since Kipp was
not present, he was not prepared to talk about it; that the parties
discussed (a) jury duty with Lerner indicating that while paid
jury duty was the current practice, he was not willing to contin-
ue it and he was not going to allow it to be in the contract; (b)
sick leave and personal leave, with Lerner indicating that he
was not really prepared to discuss that; (c) pension, with Lerner
indicating that he would not agree to it because he was con-
cerned that he would be liable for it even if the building were to
be closed; (d) health and welfare, with Lerner indicating that
(1) he did not want to pay for the Union’s junk plan in that the
Union had proposed using its health and welfare plan which
Lerner considered to be a junk plan; (2) he wanted to utilize
management’s present policy, which is more expensive and
very few employees can afford; and (3) he was not willing to
accept any kind of health insurance that did not involve em-
ployee contribution; and (e) wages, with Lerner reiterating that
the current pay rate was sufficient, he was willing to increase
CNA pay by 10 cents and that was it, but nothing for anybody
else; that no tentative agreements were reached at this session;
that the Union caucused and came back at 3 p.m. with a new
written proposal on wage increases, namely a scale, and the
Union withdrew its pension proposal but retained its health and
welfare proposal; that the wage proposal was lower than what
the Union originally proposed; that Lerner did not change his
position on pay, indicating that the administrator was quite
happy with the availability of the employees a the pay rate at
which they were paying; that this session ended around 4 p.m.
and therefore it was no longer than 3 hours; and that the parties
scheduled the next session for September 10, 2008, at 1 p.m. at
Camelot.
General Counsel’s Exhibit 49 is a September 9, 2008 email
exchange between Neimark and Lerner. First, Neimark, as here
pertinent, advised Lerner as follows:

It has come to my attention that management is threatening to
drug test our leaders at Galesburg Terrace as part of a new
program of massive random testing. Implementation of such a
program would be a violation of the NLRA because it consti-
tutes an unauthorized change in terms and conditions of em-
ployment.

Lerner, as here pertinent, responded as follows: “[n]o new drug
testing program was ever implemented or even proposed by
management.” Neimark responded, as here pertinent, as fol-
lows: “. . . I was writing for clarification. Thanks for the clarifi-
cation.”
With respect to the September 10, 2008 bargaining session,
Neimark testified that it was held at Camelot; that he, Lopez,
and Justin Mooney, who is an employee at Galesburg, were
present for the Union; that Lerner and Kipp were present for
management; that at the outset of the session Lerner objected to
the presence of Mooney, indicating that Mooney had no right to
be there since the parties were just discussing Camelot that day;
that Mooney was present that day because the Union wanted to
negotiate for both facilities; that Lerner said that he was going
to go out and poll the employees and determine whether they
wanted Mooney to be representing them in that meeting; that he
told Lerner that his proposed poll was not appropriate; that
Lerner eventually sat down and bargained; that the parties dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1966
cussed (1) some language proposals management had asked
for; (2) sick leave; (3) tardiness; (4) a proposal to add language
about endangering the safety of residents; and (5) reopening
some other language on breaks, etc.; that management’s pro-
posals are in writing; that management attempted to reopen rule
17, indicating that management wanted to change it in a way
that had to do with sleeping on the job notwithstanding that this
language, which was break language, had previously been ten-
tatively agreed upon; that the parties discussed the economic
proposal, with management basically just reiterating their feel-
ing that the $7.75 was sufficient, management did not want to
put money into “junk insurance,” and management was not
having any trouble recruiting people for minimum wage to
work as CNAs; that while at the outset of this session Lerner
indicated that they were bargaining for Camelot, the parties
were discussing the Galesburg economic proposal at that point;
that the parties agreed to management’s language regarding
endangering the safety of residents, family, or staff would be a
first offense termination; that since Lerner refused to call these
things tentative agreements because the Union took the position
that tentative agreements could not be later withdrawn, Lerner
started calling them “possible agreements” and labeling them
“PAs”; that toward the end of the scheduled session (5 or 10
minutes before 5 p.m.) when they were discussing economics,
Kipp suggested a 15-minute caucus and they would come back
to discuss wages some more; that Lerner then said we are end-
ing this session now “we’re not going to come back and caucus
or talk anymore about this” (Tr. 156); that the parties did not
agree to any further bargaining sessions but they already had
one scheduled for September 16, 2008; and that he tried to get
Lerner to schedule a session beyond September 16, 2008, but
Lerner refused to go beyond 1 week.
Kipp testified that Justin Mooney attended a session at Cam-
elot on September 10, 2008; that at the outset of the session
Lerner asked why Mooney was there since he was a Galesburg
employee and the parties were negotiating separate contracts;
that Neimark said that he thought that some of the issues to be
discussed at that session would be some of the same issues
pending with respect to Galesburg and, therefore, Mooney
should stay: that Lerner did not say anything about polling
employees regarding whether they wanted Mooney to be there;
and that this issue did not come up at a later point in this ses-
sion.
On rebuttal during the presettlement portion of the trial here-
in, Lopez testified that she attended a September 2008 bargain-
ing session at Camelot at which employee Mooney, who
worked at Galesburg at that time, was present; that Lerner and
Kipp were present for management at this session; that when
Lerner came into the session he wanted to know why Mooney
was at Camelot because the parties were only discussing Came-
lot; that Neimark said that he had a right to choose who the
Union wanted to be on the bargaining team for the Union; that
Lerner said that he would go out and poll the workers at Came-
lot to see if they wanted Mooney to do the bargaining for them;
that Lerner, whose facial expressions and the fact that his face
became red led her to conclude that he was upset and angry,
went to the door; and that Lerner did not leave the room, he
eventually returned to the bargaining table, and bargaining
commenced for the day.
On cross-examination, Lopez testified that she believed that
Lerner raised his voice; that when Lerner brought up Mooney
being there, Neimark said that they were also going to be dis-
cussing Galesburg issues; and that Lerner said that he was go-
ing to poll the employees to see if they wanted Mooney to be
on the bargaining team for them.
General Counsel’s Exhibit 50 is a September 10–11, 2008
email exchange between Neimark and Lerner. First, Neimark
indicated as follows:

Given that you have continued to engage in dilatory
and surface bargaining, we are suggesting that further ses-
sions be held with a mediator from the Federal Mediation
and Conciliation Service.
Each session, you have presented new non-economic
proposals that address issues that had been discussed in
earlier bargaining sessions. All of the proposals presented
could have been proposed when the parties were still dis-
cussing non-economics.
The union believes that your motives for these activi-
ties are transparent. You continue to bring up non-
economic issues in order to avoid deep discussion of the
very important economic issues.
The utterly absurd positions you have taken on the
economics, with justifications that clearly fly in the face of
rational thought and facts on the ground (like your claim
that Galesburg Terrace does not have a turnover problem
when over 66% of your direct care workforce has worked
at Galesburg Terrace for under one year).
I have forwarded this email to Jerry Meehan, the
FMCS Commissioner who has been assigned to this case.

As here pertinent, Lerner replied as follows:

As usual, you seem to think that you can dictate what
gets discussed and when. You think that since you finished
going through your non-economic proposals, we must for-
get about ours, and they will go away. Be advised that
that’s not the case. The Employer has the same rights you
do to discuss its non-economic needs. We clearly told you
previously that we hadn’t presented all our non-economic
proposals, but because you insisted that we immediately
discuss economics, we reluctantly agreed to.
So don’t feign surprise at this. We will continue to
bring up our non-economic proposals until they are re-
solved. Remember a contract involves two sides—It’s not
just your side that gets to propose issues. We clearly aren’t
doing this to delay discussing economic issues, because
you are well aware that we’ve already discussed them with
you, with numerous proposals and counterproposals.
When we continue to bring up non-economic issues, it’s
because you have never yet given us our opportunity.
Just because you are unhappy with our response to
your economic proposals, doesn’t mean we aren’t discuss-
ing them, and aren’t willing to come to an agreement. We
have discussed them and will continue to discuss them,
and don’t yet need any mediator. If you would come down
from your unreasonable expectations, we surely could
CAMELOT TERRACE

1967
agree to contract terms. But if you insist on the ridiculous-
ly expensive proposals you have made, we will undoubt-
edly be progressing very slowly.
. . . .

Regarding the September 16, 2008 bargaining session,
Neimark testified that it was held at Galesburg; that he,
Frascone, and named bargaining unit members were present for
the Union; that Lerner and Kipp were present for management;
that the Union proposed that management either provide the
Union’s health insurance or pay 100 percent of the health in-
surance premium of the policy provided by management; that
the Union decreased its wage proposal; that Lerner continued to
say that he was not willing to do anything more than 10 cents
and that “people who work in nursing homes don’t do it for the
money, so he didn’t feel that they needed to provide any more
money” (Tr. 159); that Lerner described the Union’s proposal
as crazy; that there was a 15-minute caucus and the parties
returned to the bargaining table at 3:05 p.m.; that Lerner did not
offer a counter proposal and indicated that he was still at 10
cents; that Lerner proposed some changes to Article 28 regard-
ing the time allowed for lunch and breaks and the fact that em-
ployees would be considered on duty during these periods; that
the parties did not reach any tentative agreements during this
session; that the session started at 2 p.m. and ended at 3:23
p.m.; that attached to his bargaining notes is the Union’s Sep-
tember 16, 2008 economic proposal which was tendered to
management at this session, page 3 of General Counsel’s Ex-
hibit 53(hh); and that the Union’s economic proposal is a fur-
ther reduction of the Union’s previously proposed wage pro-
posal.
Kipp testified that Respondent’s Exhibit 10(b), which refers
to article 28 of the proposed contract, was drafted by manage-
ment and given to the Union at the September 16, 2008 bar-
gaining session; and that this proposal of management was
from both Camelot and Galesburg. The document reads as fol-
lows:

Article 28
1. Each employee is entitled to 1/2 hour lunch period
2. Each employee is entitled to a total of twenty
minutes of break time. . . .
3. An employee is considered on duty, from the time
they punch in on the time clock, until the time they punch
out.

Kipp further testified that Neimark told her that this proposal
needed to be in contract language.
When called by Lerner at the postsettlement portion of the
trial herein, Kipp testified that she remembered meetings where
there was a discussion about changing health insurance carriers
for Galesburg and Camelot; that it is possible that in the middle
of September 2008 she attended a meeting with Lerner and
Neimark and she thought Lori might have been present; that
she believed that Lerner brought up the issue of health insur-
ance at this meeting; that Lerner said that they were shopping
around for a better deal regarding health insurance carrier be-
cause it was expected that there would be a rise in premiums;
and that Neimark said that most of the union members did not
take it so it was not of real interest to him.
On cross-examination, Kipp testified that in her May 5, 2009
affidavit to the Board she indicated, “I do not know anything
about a change in the facilities health insurance carrier in 2009.
I do not take any insurance.” (Tr. 774.)
When called by Respondents, Lerner testified that on Sep-
tember 16, 2008, he “notified the union negotiators that both
Camelot and Galesburg were looking for other carriers because
the prices were going up very high from the existing carriers
. . . [a]nd Ron said to me ‘Oh, we don’t care, our members
aren’t part of this anyway’” (Tr. 799); that he told Neimark that
Respondents were looking at Aetna and if Neimark had any
concerns, to let him know; that this was the end of that conver-
sation; and that the Union did not ask at this session for docu-
mentation regarding the cost of the Aetna policies but the Un-
ion did later (he thought in February 2009) ask for the differ-
ence in cost between the plans, and it was provided.
On cross-examination, Lerner testified that Neimark was not
concerned about the existing policies because Neimark always
said, “Those are too expensive for our employees” (Tr. 857),
and Neimark was always trying to push his union health policy;
that, regarding the health care insurance carrier utilized by Re-
spondents, Neimark also said, “That doesn’t concern us . . . .,
basically do what you want because my members are [sic] in-
volved in this insurance plan” (Ibid.); that Neimark was not
concerned about a switch in the current policy for the current
members because his employees, the ones he was representing,
were not members of that policy; that Neimark did provide
several proposals during negotiations concerning health care;
that the switch from Unicare to Aetna was bargained and the
parties in fact negotiated this switch; and that the parties did not
memorialize in writing the switch from Unicare and Blue Cross
and Blue Shield to Aetna.
On rebuttal, Neimark testified that he was not notified by
Respondents of the change in health insurance carrier on Sep-
tember 16, 2008; and that he was not given any advance notice
of a change in health insurance carrier by either Respondent.
With respect to the September 25, 2008 bargaining session,
Neimark testified that he, Frascone, and named employees,
including Pauline Kilpatrick, were present for the Union; that
Lerner was present for management; that the session, which
was held at Camelot, began at about 2:15 p.m. because some
employees from the facility came into the room and asked to
speak with him, and he talked with them until 2:15 p.m.; that
Lerner started that session indicating that he was not moving on
economics at all, the pay rate now is reasonable, the wage is
acceptable, and until the Union made any kind of reasonable
offer, he was not even going to think about moving off of 10
cents; that when the Union asked Lerner what did he mean by
reasonable, Lerner replied that what the employees were being
paid at that time was reasonable; that the Union then caucused
and provided another economic proposal to Lerner, proposing
retroactive minimum anniversary raises that were lower than
what it had previously proposed; that Lerner said he would not
agree to anything retroactive and that he would study the pro-
posal; that the parties discussed sleeping on break which
stemmed from the proposal management had given to the Un-
ion the session before about being considered on duty during
break and lunchtime; that the parties did not reach agreement
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1968
about the sleeping on break issue because Lerner said he could
not agree in that he needed to talk about it with Kipp; that the
parties did not reach any tentative agreements at this session;
that he did not remember how long the session lasted but he
believed that the session did not go beyond the usual 5 p.m.;
and that in the three bargaining sessions in September 2008 the
parties reached a total of one tentative agreement, which Lerner
insisted be characterized as a PA or possible agreement.
Kipp testified that Respondent’s Exhibit 10(e) is manage-
ment’s sick leave proposal which was given to the Union at the
September 25, 2008 bargaining session. The document reads as
follows: “[s]ick leave accumulates at the rate of one (1) day per
quarter. Sick leave may not be added to vacation time, nor will
cash bonus be given in lieu of sick leave.” Kipp further testified
that Neimark agreed to this proposal and said that it needed to
be in contract language.
The Board issued a Decision and Order Remanding in Came-
lot Terrace, Inc., 353 NLRB 151 (2008). More specifically, the
Board adopted Judge Cullen’s findings that Camelot violated
the Act by issuing warnings to and discharging employee Hen-
son. The Board, however, remanded the Lopez termination for
the judge to issue a supplemental decision explaining his find-
ings and credibility resolutions in sufficient detail for the
Board’s review.
Neimark testified that the parties had one bargaining session
in October 2008.
Respondent’s Exhibit 5 is an October 28, 2009 email ex-
change between Neimark and Lerner. First, Neimark advised
Lerner as follows:

About 2 weeks ago, I gave Teresa Sangster a hand-
written information request for a list of bargaining unit
employees, including name, address, phone number, rate
of pay, date of hire. The list that she gave me did not have
contact information and did not include employees hired
in October. I asked her to provide the missing information
and to date I have not received this.
In addition, the request asked for copies of drug testing
reports since the last set of reports provided when we were
negotiating over the contract language on drug testing. We
requested the information in order to test if you are being
consistent with your stated policy of terminating all who
test positive for drug use. We have reason to believe that
your management is not consistent with that “policy” and
only enforces it against those that they choose to enforce it
with. Your company’s failure to provide the requested in-
formation, and your earlier refusal (by email on September
9) to provide it, is in direct violation of your duty to bar-
gain under the National Labor Relations Act.

Lerner responded as follows: “I’ll check it out. I’m on the road
today and don’t have access to any records of ‘previous’ re-
quests. If it hasn’t been provided, we will get it to you. In the
future, please copy me on any requests you make from adminis-
trators. I prefer to be in the loop to make sure we are being
compliant with NLRA.”9

9 It appears that Lerner may have added at some later time to his re-
sponse. The other page of R. Exh. 5, however, does not have the usual
On October 29, 2008, as noted above, a complaint was is-
sued which collectively alleges that at various times from Janu-
ary through September 2008 Respondents Camelot and Gales-
burg and the Union met for the purpose of collective bargaining
with respect to wages, hours, and other terms and conditions of
employment and Respondents failed and refused to bargain in
good faith with the Union as the exclusive collective-
bargaining representative of the Camelot and Galesburg units
by (i) restricting the dates for bargaining sessions; (ii) restrict-
ing the lengths of bargaining sessions; (iii) repeatedly cancelled
and shortened scheduled bargaining sessions beyond their un-
reasonably stated intention not to bargain for more than four
hours per session; (iv) reneged on or withdrew from tentative
agreements without good cause; (v) refused to bargain over
economic subjects; and (vi) refused to make economic pro-
posals.
When Neimark testified at the trial herein on November 12,
2008, he testified that there is no contract in place for either
Camelot or Galesburg; that the parties had one bargaining ses-
sion in November 2008 at which they reached some noneco-
nomic tentative agreements; that Lerner never gave the Union a
written proposal on wages or economics; that since the Febru-
ary 12, 2008 session until the end of September 2008, the par-
ties have reached five tentative agreements; that between Janu-
ary and September 2008 the parties have met a total of 21
times, bargained a total of less than 60 hours, met 9 times at
Galesburg and 12 times at Camelot, and not reached any tenta-
tive agreement on any economic issue; that the certification
year has expired at both facilities; that the Union has never cut
a bargaining session short; that Lerner has canceled bargaining
sessions for matters of personal convenience, namely his son’s
engagement, his surgery, and when he had the vehicle problem;
that the parties have only reached tentative agreements on about
one half of the proposals by the end of September 2008; and
that the Union requested Galesburg drug testing reports but
management has not provided this information.
On cross-examination, Neimark testified that the Union can-
celed one session because of snow and it canceled the second
one a week in advance because it had another meeting sched-
uled on April 1, 2008; that while the Union requested written
responses to the Union’s written proposals, management re-
fused to comply with this request, and he believed that man-
agement’s refusal to put its responses in writing to the Union’s
written proposals demonstrates that management was not bar-
gaining in good faith; that management did provide the Union
with written proposals on certain topics but management did
not provide the Union with written proposals on many things
that the Union requested them for; that the bargaining sessions
were rarely productive; that in view of the fact that through
September 2008 management agreed to less than one half of the
items which were in the master contract, management was try-
ing to create a new document; and that management would
tentatively agree to certain proposals and later management
would come back and try to create whole new proposals around
that same language.

email information, i.e., the date, time, and email address. Additionally,
the type is a different size than Lerner’s response quoted above.
CAMELOT TERRACE

1969
On redirect, Neimark testified that while management ulti-
mately responded to most of the Union’s requests for infor-
mation, some of the responses may not have been timely; that
while Lerner originally indicated that he would agree to a 90-
day period regarding union security, Lerner subsequently said
that he was rejecting union security altogether; that the Union
has never waived any right to file a petition to seek to represent
employees of any kind in the nursing home industry in Illinois;
that the master contract provides for (a) arbitration and griev-
ance; (b) the payment for jury duty; (c) the Union would not be
liable for strikes or walkouts where the Union makes reasona-
ble attempts to interdict; (d) pensions; and (e) a minimum wage
way above what Lerner was offering; that Lerner renewed his
proposal to have the Union agree not to seek to represent the
LPNs even after he told Lerner that such a proposal was not
legal; that, with respect to the wage information, sometimes it
would take a month and a half to get the information from
management; and that the hours information that the Union
requested in connection with the overtime issues was provided
within 2 or 3 weeks.
On recross, Neimark testified that the bargaining sessions be-
tween January and September 2008 averaged about 3 hours
each, and rarely did they go to 4 hours.
On November 13, 2008, during the trial, counsel for the
General Counsel requested an adverse inference be drawn re-
garding Kipp’s failure to turn over her 2008 calendar, which
has notations on it with respect to when sessions were to be
held, in response to the subpoena of counsel for the General
Counsel. This matter was taken under advisement and counsel
for the General Counsel was directed to raise it in her brief. It
does not appear that counsel for the General Counsel specifical-
ly raises this matter on brief. Also, it is not clear exactly what
the adverse inference would be. Consequently, this request is
denied.
Neimark testified that he was present at a bargaining session
at Galesburg on December 3, 2008, along with Frascone, Cagle,
Babcock, and Kilpatrick for the Union; that Lerner was present
for management; that the parties discussed the grievance proce-
dure, particularly the peer review because Respondents did not
want to have binding arbitration on disciplinary cases; that the
Union proposed to agree to peer review for disciplinary matters
if Respondents would agree to union dues checkoff and security
and COPE; that Lerner did not agree to the Union’s proposal
since he considered those to be economic issues; and that the
parties TA’d a variety of items at this session, which agree-
ments are attached to his notes of the bargaining sessions (GC
Exh. 67).10
General Counsel’s Exhibit 94 consists of (1) settlement
agreements (a) in Cases 33–CA–015587 and 33–CA–015670
regarding Galesburg, and (b) in Cases 33–CA–15584 and 33–
CA–015669 regarding Camelot, with both settlement agree-
ments signed by Lerner, Neimark, and counsel for General
Counsel Melissa M. Olivero (in the “Recommended by” box)
on “12/4/08,” and (2) notices to employees with respect to both
of the settlements. As noted above, I approved these settle-

10 Neimark testified that his bargaining notes were contemporane-
ously recorded at the bargaining session.
ments. Neimark testified that as part of the settlements Re-
spondents agreed to bargain in good faith with the Union, and
to meet and bargain with the Union for a minimum of 5 hours
per session and 20 hours per month.
General Counsel’s Exhibit 68 is a December 5, 2008 email
from Neimark to Lerner which reads as follows:

I have attached 2 documents. The first contains all items that
we have TA’s or PA’d to date. The second contains all items
that we have yet to come to an agreement on. The second
document contains some language that you prefer and some
that we prefer. I do not present the 2nd document as a pack-
age proposal, but instead as items to be discussed.
. . . .

Neimark testified that it was his understanding that the TAs and
PAs in these documents applied to both Galesburg and Came-
lot; that PA stands for possible agreement which “was a term
that was constructed by Respondent because he [Lerner] did not
want to—he considered TAs to be binding upon the parties. He
did not want to be held bound by anything he agreed to” (Tr.
437); and that in the course of his experience as a representative
with the Union he has never heard the term “PA” used in bar-
gaining with other employers.
With respect to the December 9, 2008 bargaining session at
Camelot, Neimark testified that he, Lopez, Babcock, and
Frascone were present for the Union; that Lerner and Kipp
were present for management; that the session began at 1:05
p.m.; that the parties discussed management rights, vacation
and personal time, meals, arbitration, no-strike/no-lockout, jury
duty, health and welfare, sick leave, leaves of absence, and full-
time versus part-time; that the parties reached a tentative
agreement on a variety of these items; that at this session Ler-
ner gave the Union a written list of various items that the par-
ties had TA’d, which was contingent upon the approval of his
attorney; that the list is part of his bargaining notes (GC Exh.
67); that the parties approved the package of TAs before the
timeline that they agreed upon; that the TAs applied to both
Galesburg and Camelot; that this session ended between 4:30
and 5 p.m.; that the Union never agreed to end early; and that
this session ended because Lerner would not respond to the
Union’s questions and, therefore, there was no further discus-
sion.
General Counsel’s Exhibit 71 is an email exchange on De-
cember 10, 2008, between Lerner and Neimark. First, Lerner
advised Neimark as follows: “I just realized that Thurs next
week won’t work. Can we change for Wed?” Neimark replied
as follows: “Wednesday doesn’t work for us.” Lerner then
asked Neimark, “What about Tuesday?” Neimark replied as
follows: “No. We have staff meeting on Monday and Tuesday.
Thursday or Friday were our only possibilities” and “I take that
back. I have another meeting scheduled on Friday.” Lerner
replied as follows: “That means we are mutually agreeing not
to meet this week, since we can’t meet Thursday, and that’s
your only possibility. Let me know if you can make it work.”
Neimark replied as follows: “We are not mutually agreeing not
to meet this week. Yesterday we mutually agreed to meet on
Thursday. That is the day that we are ready to meet on. If you
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1970
are canceling, you are unilaterally canceling this session. It is
not mutual.” And Lerner replied as follows:

It’s obvious that you always go out of your way to make
things difficult. Within a few hours of our scheduling the next
meeting, I notified you that our scheduling of Thursday was
in error, since we cannot make it due to a conflict. Without
being specific, it is a very legitimate reason, that would easily
stand up in court. We offered you any other day of the week,
and you refused. Since you are making yourselves available
only on the only day we are unavailable, it is you that is can-
celing the session. As an alternative, would you be able to
meet in my office any day of the week?

On cross-examination, Neimark testified that this session
was not rescheduled.
On cross-examination, Lerner testified that if he asks some-
one if they can find another day and they say no, he under-
stands from the other person that the other person was mutually
agreeing not to meet.
General Counsel’s Exhibit 72 is a December 11, 2008 email
from Neimark to Lerner which reads as follows: “Here is a
revised copy of the agreement including the TAs from this past
week. We are available to meet on Wednesday in Galesburg.”
With respect to the bargaining session on Wednesday, De-
cember 17, 2008, Neimark testified that it was held in Gales-
burg; that he, Frascone, Babcock, and Kilpatrick were present
for the Union; that Lerner was present for management; that the
session started a 1:15 p.m.; that the Union presented an eco-
nomic proposal for Galesburg and Camelot at this session; that
the proposal is attached to his bargaining notes (GC Exh. 67);
that the parties discussed the economic proposal; that Lerner
indicated that he was not willing to do wage reopeners each
year of the contract and he wanted a 5-year contract; that Ler-
ner indicated that he was not willing to tie anything to the min-
imum wage in that part of the proposal referred to a certain
amount above the minimum wage; that Lerner indicated that he
was only willing to give 10 cents per hour for everyone, there
was just not any money, and it would make him highly uncom-
petitive to agree to things that the Union had proposed; that
Lerner indicated that pay is a management-rights decision and
if he wanted to pay people more, he could pay certain individu-
als more, depending on what ever management wanted to do
and it should not be grievable; and that this session ended at
4:20 p.m. so it lasted 3 hours and 5 minutes.
On December 18, 2008, Judge Cullen issued a supplemental
decision in Cases 13–CA–043936 and 13–CA–044044 in which
he concluded that Camelot violated Section 8(a)(3) and (1) of
the Act by its discharge of Lopez.
General Counsel’s Exhibit 74 is an exchange of emails be-
tween Neimark and Lerner starting on December 19, 2008, and
concluding on December 25, 2008. First, Neimark advised
Lerner as follows:

Your continued failure to bargain in good faith re-
mains the primary obstacle in attempting to reach a settle-
ment to the contracts at Galesburg Terrace and Camelot
Terrace.
At bargaining this past Wednesday, your refusal to
clarify your position on wage increases makes it very dif-
ficult for us to propose a counter that may be acceptable.
Your coy answers make it difficult for us to evaluate your
proposals. Your continued claim that any more than a 10
cents increase would make you uncompetitive is counter-
factual and perplexing. When we have asked you to clarify
what you mean by uncompetitive, your response has been
that you do not need to explain it.
The fact of the matter is that your wage rates are un-
competitive in that they are too low. No other facility in
Galesburg, or in any other part of the state of Illinois for
that matter, starts CNAs out with wages as low as what
you propose. Your claim that higher increases would make
you uncompetitive are transparent attempts to continue to
stall bargaining.
Furthermore, your behavior in scheduling bargaining
sessions has been inconsistent with the settlement you
signed with the NLRB. The settlement requires you to
bargain for 20 hours a month for each facility with ses-
sions that are to last no less than 5 hours per session. We
would have no problem bargaining for five hours a session
if you were to bargain in good faith and answer our clari-
fying questions rather than attempt to avoid answering
them. Your claim that we cut bargaining short on
Wednesday because we had nothing father to discuss was
bogus. We had nothing further to discuss because you re-
fused to fully discuss the issues that were at hand. We
have proposed and continue to propose, that we hold 2
back-to-back bargaining sessions each of the last two
weeks of January, since the union bargaining team is una-
vailable for the first half of January. We are proposing that
those sessions begin at 9:30 am, recess at 12, reconvene at
1 and conclude at 3:30pm. Given that we are bargaining
separate contracts with separate economic resolutions, it
can be argued that you are required, as per the settlement,
to bargain twice the amount of time that I am trying to
hold you to. You have refused to set up bargaining ses-
sions any earlier than one week before the session with the
bogus claim that you cannot plan that far in advance.
The union is requesting the following information in
order to be able to evaluate your economic proposals and
to propose counters:

1) Copies of the profit-loss reports for 2007 and 2008
year to date for Galesburg Terrace, Camelot Terrace, Re-
gal, Forest Hill and Gem Healthcare.
2) Copies of the balance sheets for 2007 and 2008 year
to date for Galesburg Terrace, Camelot Terrace, Regal,
Forest Hill and Gem Healthcare.
3) Daily Census Reports for the past 8 months for
Galesburg Terrace, Camelot Terrace, Regal, and Forest
Hill.
4) Any and all documentation of your claims that your
reimbursement rates have been lowered. Please provide a
copy of all documentation of your rate history from Janu-
ary 2007 to the present.
5) Any and all documentation of your claim that
providing the raises we have requested and the insurance
we have proposed would make you “uncompetitive.”

CAMELOT TERRACE

1971
Also, to again clarify our requests for information
which we made at the bargaining session on Wednesday:
It should be understood that just because we are asking
you to provide additional information on the “American
Worker” indemnity plans, it does not mean that we are in-
clined to accept the concept and we continue to propose
that the employer pay the full premium to provide a fully-
insured plan, such as that SEIU Health and Welfare Fund,
to all of its bargaining unit employees. Our agreement to a
lesser plan would be contingent upon you making signifi-
cant good faith movement on wages.
We look forward to receiving your responses soon and
we urge you to consider bargaining in good faith from this
point on so as to avoid further NLRB and legal action
against you.

Lerner replied as follows:

We have been very forthright and forthcoming with
you in regard to our economic proposals. We have told
you countless times that we cannot give your members the
25–35% raise they are asking for and still remain competi-
tive. We have offered you a 10 cent raise, and we have put
out for discussion a health plan, that we would consider
participating in as part of an overall package, if the staff
also participates in its cost.
While our proposal obviously doesn’t sit well with
you, because you likely have promised your members con-
siderably more than we’ve proposed; that doesn’t make it
unfair bargaining. An attorney once told me that even if
management would offer nothing in the way of raises; it
would not be considered by the NLRB to be unfair bar-
gaining.
Your request for financial data for facilities not in-
volved in our contract negotiations, is a non-starter, and
unless you show us differently, surely isn’t a legal request.
Regarding your request for Galesburg and Camelot fi-
nancials—Please provide us the legal basis for this re-
quest. Since we’ve never raised to you the concept of an
inability to pay your requested increase, we don’t believe
there is a legal requirement for us to provide them to you.

Neimark replied as follows:

I am asking you for the third time to clarify what you mean by
competitive and to explain how raising your pay rated to our
requested level, which is closer than your proposal, to the
market wage for CNAs in Galesburg nursing homes, would
make you unco[mpetitive].

Lerner replied as follows: “We have discussed this with you in
the past, and will discuss it again with you this upcoming meet-
ing 12/31.”
With respect to the December 31, 2008 bargaining session,
Neimark testified that it was held at Camelot; that he and Lopez
were present for the Union; that Lerner and Kipp were present
for management; that bargaining commenced at 12:15 p.m.;
that the parties discussed mandatory overtime, the reinstate-
ment of Lopez, and insurance and wages; that Lerner indicated
that he had no problem getting CNAs to work for him for $7.75
an hour; that Lerner was not willing to look at other salaries in
the Galesburg area, indicating that he doesn’t look at other
nursing homes and the employees were happy with what they
were being paid; that the minimum wage at the time was $7.75;
that the parties discussed both facilities; that this session ended
at 2 p.m. because it was New Year’s Eve and the parties wanted
to get back to Chicago, Illinois.
General Counsel’s Exhibit 75 is a January 3, 2009–January
5, 2009 email exchange between Neimark and Lerner. First,
Neimark advised Lerner as follows:

At the bargaining session on December 31, you made
the claim that you have no difficulty finding CNAs to
work at Galesburg Terrace at the current pay rate, mini-
mum wage, and that in order to remain competitive, you
intend to not pay workers any more than you have to in
order to hire. Furthermore, you indicate that CNAs are sat-
isfied with the wage you offer. The following information
is needed in order to evaluate the claim you have made.
We reserve the right to make additional requests for in-
formation to address this issue if such questions should
arise. Please provide this prior to our next session on Janu-
ary 22.

1) Please provide a list of all CNAs who have been
employed by Galesburg Terrace since July 1, 2007, their
rate of pay (present for current employees and upon termi-
nation for those who are no longer employed), their hire
and termination dates, and their last know phone number.
2) For all CNAs who have been employed by Gales-
burg Terrace since July 1, 2007, please provide evidence
that the CNA has proper certification, that a criminal
background check was performed, and that no disqualify-
ing offenses were found or that evidence that the employee
has a waiver was provided.
3) Please indicate if any additional measures are per-
formed to pre-screen new applicants (e.g. pre-employment
drug testing, checking of references, etc.).

Lerner replied as follows:

Your requests for information are not being made to
evaluate our claim. They’re being made to harass us . . . .
Also, I never said that the employees were satisfied with
their wage; all I said was that people are obviously willing
to accept these positions for the wages we are paying. . . .
Regarding your specific requests:

1. You have requested and already been provided with
these lists, and regular updates, countless times. What are
you missing, that relates to this issue?
2. Background checks are being done pursuant to state
and federal law. Our compliance to this requirement is
closely monitored by regular inspections of the IL De-
partment of Public Health. You can check with IDPH if
we have had any compliance problems with this issue.
Since we don’t keep lists of background checks, we are
unable to provide one to you. However, all this infor-
mation is public record. IDPH keeps a nursing registry that
lists all the employees’ qualifications, including the record
of their last background check. If you have a specific em-
ployee that you are unable to obtain their background
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1972
check, please provide their name, and we’ll attempt to as-
sist you.
3. We do reference checking on new employees, but
no drug testing.

Neimark replied as follows:

I assure you that we are not requesting this information
to harass you and that they are all essential for our discus-
sion regarding wages. It is our belief that because it is dif-
ficult for your administration to hire qualified CNAs at the
wages you are offering, they have been hiring unqualified
people to work as CNAs, just as the facility has main-
tained unqualified administrative staff. I do not believe
that IDPH has monitored you as you claim.
Furthermore, I need the information requested to de-
termine the exact rate of turnover and hence to be able to
evaluate your claim that you are able to retain employees,
and to demonstrate to you that you have a problem with
turnover and staff retention.
Finally, we have indeed requested the list we are re-
questing by this notice numerous times, but such a list has
never been provided. I am asking that you provide precise-
ly the information requested in black and white.
These requests are all relevant to the issue that we are
bargaining and hence are legal requests under the NLRB.
Finally, at this point we have only scheduled 5 hours
of bargaining for the month of January. Please submit your
proposed dates for other bargaining sessions to fulfill your
obligation to bargain for 20 hours per month, keeping in
mind that I am out of town until January 15.

Lerner replied as follows:

Please stop misquoting me. I never said “you are able to retain
employees.” What I said was that we are satisfied with our
ability to hire and staff the building with the necessary re-
quired staff. Nursing homes across the country are notorious
for staff turnover, and we are no different. Regarding back-
ground checks, it’s your prerogative not to believe me. How-
ever, I simply cannot give you something we don’t have. We
don’t keep lists of the background checks, but I can assure
you that every hire that requires one, has one done. But feel
free to check with IDPH, and ask them whether they thor-
oughly review background checks, at every annual survey
they perform.

On cross-examination, Neimark testified that although Ler-
ner indicated in his email that “[w]e don’t keep lists of the
background checks,” this turned out to be false because eventu-
ally a list was provided by Respondent for Camelot.
On January 13, 2009, Lerner emailed Neimark with a further
reply (GC Exh. 76), which reads as follows:

If you don’t believe me, you can check with IL De-
partment of Public Health. Ask them if checking the
C.N.A.’s background checks is a required task of their
surveyors during their annual inspections. Since we don’t
have the lists that you requested, if you have a specific
CNA that you have concerns about their credentials,
please ask me to obtain their background check.
Also, I still didn’t receive the info you requested from
the insurance broker. He said that your request of every
possible option made the company rep. nervous. They’re
wondering if you’re trying to get all of their business se-
crets. He’s still trying, but you might need to tailor your
request to the most important issues that you need info
about.

With respect to the January 22, 2009 bargaining session,
Neimark testified that it was held at Galesburg; that he,
Frascone, Babcock, and Kilpatrick were present for the Union;
that Lerner and Kipp were present for management; that the
session started at 12:15 p.m.; that the parties discussed health
insurance; that at a point in time Lerner left the room and they
discussed with Kipp the reinstatement of member Woertz, who
was a union supporter who had quit, and the reduction of hours
in housekeeping; that he learned of the reduction of hours in
housekeeping from member Kilpatrick who told him before this
session that she and other housekeepers were reduced in their
hours; that management did not inform the Union of any inten-
tion to reduce hours in housekeeping or any department; that
prior to this session the Union did not receive any notice from
Respondent of their change in the hours of the housekeepers at
Galesburg and the Union was not given the opportunity to bar-
gain over the decision of its effects; that when the Union tried
to discuss this matter at this session, Lerner indicated that he
was willing to talk but he wasn’t going to change anything; that
Woertz did go back to work at Galesburg but instead of com-
plying with the policy manual and past practice, Woertz was
put on a 6-month probation instead of the usual 3-month proba-
tion; that the Union learned of the 6-month probation from
Woertz and not from management; that Lerner indicated that it
was the practice to give 6-month probation to those who re-
turned if they had attendance problems; that the Union asked
for and received proof of this11; and that the Union had never
been given notice of a change in the probationary period for
rehired employees prior to this session, it had not been given an
opportunity to bargain over the increased probationary period
for rehired employees or the effects of that decision.
On cross-examination, Neimark testified that it is not true
that Lerner was the one who brought up the reduction of hours
at Galesburg at the January 22, 2009 bargaining session but
rather the Union brought it up because employee Kilpatrick had
indicated that Galesburg had already reduced the hours before
this meeting; and that with respect to the documents Galesburg
produced showing that other returning employees had a 6-
month probation, the documents were signed after the Union

11 GC Exh. 92 is five agreements signed by employees who returned
to Galesburg indicating that they agreed to a 6-month probationary
period. The documents were signed during the period between
“10/31/08” and “12/16/08,” with Woertz signing her document on
“11/21/08.” Neimark testified that he was not provided any documents
indicating that employees were given a 6-month probationary period
upon rehire that were dated prior to May 24, 2007, when the Union was
certified with regard to this facility; and that this policy was not part of
the information that management provided to the Union regarding their
policies prior to Woertz advising him that she had been placed on a 6-
month probationary period.
CAMELOT TERRACE

1973
requested them, the facility engaged in deceptive practices in
producing these documents, and even if the change occurred
when Respondents said it happened, it would have still have
happened after the Union was certified.
Teresa Sangster, who is the assistant administrator at Gales-
burg,12 testified, when called by counsel for the General Coun-
sel, that she made the decision to cut hours of the housekeepers
in January 2009 because “We needed to make an economic
cut” (Tr. 684); that she spoke with Lerner before she made the
decision because of the negotiations with the Union; that Lerner
told her that he would take it to the bargaining committee; that
she believed that the Union was notified of the change; that
Lerner brought her a proposal that someone else had suggested
inside the bargaining committee; that Brenda Philbee, who was
the housekeeper/laundry supervisor, just made the announce-
ment to the staff; and that in her May 1, 2009 affidavit to the
Board (GC Exh. 104) (which was not offered) she testified as
follows:

In January 2009, we had an across-the-board reduction
in hours for housekeeping and laundry staff. This reduc-
tion was due to the decline in the employer’s census.
There was not enough work to keep these employees
working their full amount of hours. Brenda Philbee,
housekeeping/laundry supervisor, initially cut the hours of
every employee in her department by one day for a two-
week pay period. As employees quit or as she replaced
people in the department, I believe she hired in more part-
time people.
. . . .
I do not know if the union was notified of the reduc-
tion of employee hours in advance by the employer. [Tr.
686.]

Sangster testified further that employees were notified or this
reduction in their hours at the payroll meeting by Philbee; that
General Counsel’s Exhibit 100, which reads as follows: “AN
EMPLOYEE’S PROBATIONARY PERIOD SHALL BE HIS
INITIAL THIRTY DAYS OF ACTIVE EMPLOYMENT AS
A PROBATIONARY EMPLOYEE. IF AN EMPLOYEE IS
SEPARATED AND SUBSEQUENTLY RE-HIRED, HE/SHE
SHALL BE SUBJECT TO ANOTHER PROBATIONARY
PERIOD” is in the employee packet when they are hired; that
the policy has been given to employees as long as she has been
at Galesburg; that there is no other written policy at Galesburg
concerning probationary periods for employees; that Woertz
was a CNA who gave two weeks notice and left Galesburg on
good terms; that subsequently she and Galesburg Administrator
Lynette Orosco rehired Woertz; that Woertz was given a 6-
month probationary period instead of 30 days because every
second weekend Woertz would take a 4-day weekend; that,
while the 6-month probationary period is not a written policy of
Galesburg, it is what Galesburg has done since she has been
there; that General Counsel’s Exhibit 99 are five signed agree-
ments with employees who were rehired between October 31,

12 Sangster testified that when she was hired in 2007 she was admin-
istrator at Galesburg but there was a question about her educational
background and she became assistant administrator in 2008.
2008, and May 5, 2009, to accept a 6-month probationary peri-
od; that these are all of the contracts of this nature that Gales-
burg had signed up until the information was faxed to counsel
for the General Counsel on May 5, 2009; that she was not
aware of any others since she has been at Galesburg, but prior
to her arrival there had been; and that she did not know if the
policy had ever been given to the Union.
When called by Lerner later in the trial, Sangster testified
that she went from administrator to assistant administrator at
Galesburg on December 2, 2008, over a licensing question; that
she has increased the number of days in the probationary period
for people who have trouble with call-ins or being late or tardy;
that people have signed contracts calling for probationary peri-
ods longer than 30 days when they returned to work after
they’ve quit (GC Exh. 92); that she put a copy of these con-
tracts at the front desk for Neimark to pick up; that these con-
tracts were in the files when she took them out; that she did not
ask someone that day or that week to have them signed; that
extending the 30-day probationary period was not a new policy
of hers in that it has been in place for as long as she has been at
Galesburg, namely 3 years; that before she was hired at Gales-
burg there are other Galesburg employees whose probationary
period was extended but there was no contract for them; that
she implemented an extended probationary period for Woertz
because of her frequent call-ins; that Respondents’ Exhibit 21 is
a progressive discipline that was given to Woertz throughout
the year; that in January 2009 she proposed to supervisor
Philbee to make some layoffs since the census was low and
their public aid rate was being cut; that she mentioned this to
her bosses, Lerner and Kipp; that since laundry and housekeep-
ing was not as busy as they had been, it was decided that this
was the best place to start; that when she suggested to her boss-
es to layoff one person they told her that they would take it to
the Union; that she was told that the members indicated that it
would be better to cut everyone back 1 hour; that she did not
implement any changes in the work hours of the laundry and
housekeeping employees before the Union agreed to it; and that
Respondent’s Exhibit 22, the handwritten schedule sheet for
January 2009 for laundry and housekeeping, shows that she
“implemented this change of reducing the hours by one hour
[on] 1/23.” (Tr. 744.)
When called by Lerner, Kipp testified that in January 2009
Galesburg reduced the hours of its housekeeping and laundry
employees because the number of residents in the building did
not require the staff that was in housekeeping and laundry; that
she attended a meeting with the Union where this issue was
discussed; that management proposed the layoff of one person;
that Babcock suggested that instead of anybody losing their job,
management should just cut an hour off everyone’s daily
schedule; that management implemented that suggestion; that
she was not aware of any layoff before this meeting with the
Union; and that Respondents’ Exhibit 22 appears to indicate
that the change was implemented on January 23, 2009.
On cross-examination, Kipp testified that in her May 5, 2009
affidavit to the Board she indicated as follows:

The housekeeping staff at Galesburg has had a reduction in
hours worked. Instead of terminating anyone, everyone got to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1974
keep their jobs and we cut some hours. I do not know if the
union was provided notice or an opportunity to bargain over
the change in advance. [Tr. 774.]

When called by Respondents, Lerner testified that in January
2009 Galesburg reduced the hours of its housekeeping and
laundry employees; that on January 22, 2009, this issue was
discussed with the Union; that at the January 22, 2009 bargain-
ing session he advised Neimark that the administrator wanted to
layoff one person in housekeeping and laundry; that Babcock
recommended that instead of laying off an employee, every-
one’s hours could be reduced by 1 hour a day; and that this
alternative suggestion was implemented.
On rebuttal at the second session Frascone, who is an em-
ployee of the Union, testified that she attended a bargaining
session at Galesburg at which the reduction of hours for house-
keeping and laundry employees was discussed; that she,
Neimark, Kilpatrick, and Babcock were present for the Union;
that Lerner and Kipp were present for management; that the
Union became aware that the housekeeping hours had been cut
when Kilpatrick told those who had come to this bargaining
session, just before the session began, that management had
decided to cut the hours in housekeeping and they chose to cut
everybody’s hours by an hour a day; that Kilpatrick indicated
that this cut had already gone into effect; that Kilpatrick told
them that it had already been changed, “they were going to put
it into effect” (Tr. 865); that during this bargaining session
Lerner was told by the union representatives that he would have
to bargain this change with the Union and that the Union’s
position was seniority should rule [“the junior person should
get the hit on the hours, not with everybody” (Tr. 866)]; that
Lerner said that he was not going to go by seniority; that man-
agement implemented a change where every housekeeper and
laundry employee had a 1-hour cut a day; and that the Union
did not learn of this change from Lerner or Kipp but rather
from a bargaining unit employee.
On cross-examination, Frascone testified that Kilpatrick told
them before the bargaining session that the hours were going to
be cut and that the employees had already been told about the
reduction; that she believed that people’s hours were actually
shortened before this bargaining session; that Kilpatrick told
them that employee’s hours were being cut; that Lerner did not
announce at this meeting that management was contemplating
laying off someone; and that there was no discussion at this
bargaining session about a layoff.
General Counsel’s Exhibit 77 is a January 23, 2009 email
exchange between Neimark and Lerner. First, Neimark advised
Lerner as follows:

Just want to confirm our discussion yesterday on bar-
gaining dates for the coming months. It is essential that we
set bargaining dates for months to come because my cal-
endar fills up weeks in advance, and unless we have
scheduled dates, it is likely that you will find yourself vio-
lating the terms of the agreement with the NLRB because
of your refusal to schedule bargaining in advance. We are
assuming that all sessions are scheduled from 1–6 pm.
What we are proposing, based on discussion yesterday but
not confirmed, is the following:

Tuesday, February 3 in Galesburg

Thursday, February 12 in Streator

After that, every Wednesday, beginning in Galesburg
on February 18, alternating between Galesburg and
Streator.
The union has previously scheduled activities on
March 11, March 18 and April 22. For those weeks, we
are proposing that bargaining be held instead on the Tues-
day preceding that Wednesday (March 10, March 17 and
April 21).
I have set all of these dates in my appointment book
from now through April 29. I expect that if you have any
problem with particular dates, you will call me right away
to reschedule those times.

Lerner replied as follows:

As I told you numerous times, in good conscience, we
cannot schedule bargaining sessions more than one week
in advance. As you’re quite aware, the nature of the nurs-
ing home business constantly has emergencies and unfore-
seen issues arising. That prevents Debbie and I, the 2
company negotiators, from committing to a date more than
one week in advance. In the past, when we committed to
meetings two weeks in advance, we got burned because
we asked you to reschedule one, and you refused and ac-
cused us of unfair labor practices.
Having said that, it is clearly our intent to meet with
you weekly for 5 hours, as the NLRB agreement requires.
As I told you, we will try to give you a possible date two
weeks in advance, in order to be flexible, and to assist you
with your busy schedule. But we won’t be able to confirm
it until the meeting of the first week.
Additionally, unless you can show me differently, I
don’t find the agreement with the NLRB to require us to
schedule our meetings weeks in advance, as you posit, not
in NLRB law. The fact that you like scheduling your meet-
ings weeks in advance is admirable, but unfortunately,
there are two parties to this negotiation and you are also
going to have to give something of yourself, to meet your
obligation to meet with us on a weekly schedule.
2/3 is definite, with 2/12 penciled in as our goal.
Thereafter, we will try for every Wed in alternating places.
We cannot commit now to your March schedule, but
as always, will try to accommodate you.

With respect to the February 3, 2009 bargaining session,
Neimark testified that it was held at Camelot; that he, Frascone,
Babcock, and Kilpatrick were present for the Union; that Ler-
ner and Kipp were present for management; that the parties
discussed wages and health insurance; and that when he asked
Lerner to explain what he meant when he said that the wages
that the Union proposed would make him noncompetitive, Ler-
ner said that “[i]t means what it means, . . . he doesn’t have to
explain what it means, [and] [i]n a nutshell, when you pay more
than you need to, you are not competitive. We try to get all the
things we can for the best price we can. We have no problem
getting employees for the rates we pay.” (Tr. 461.) Neimark
CAMELOT TERRACE

1975
further testified that Lerner said at this session that he was not
going to talk about current conditions he would only talk about
contract issues; that at 3:30 p.m. the Union tendered a written
economic proposal which is in his notes (GC Exh. 67); that the
Union proposed a wage tier system but Lerner said that he was
absolutely not going to tie anything to the minimum wage, he
did not want any raise for signing the contract, he was not in-
terested in a shift differential, he would not agree to wage re-
openers, he was not interested in the union health fund unless
there is financial participation from the employees, and the
employees would have to pay a part of their insurance; that the
Union made another wage proposal at 4:20 p.m. which is in his
notes (GC Exh. 67); that Lerner responded that he was willing
to give only 10 cents to the CNAs only; that this was a change
in that at the previous session Lerner said that he was willing to
pay (a) 10 cents more to everyone, and (b) $25 toward the
health insurance plan which cost $50 a pay period; that Lerner
said that he was not going to be concerned with the minimum
wage increases because “I can’t help the Governor’s follies”
(Tr. 463); that with respect to the fact that the 6-month proba-
tionary period being applied to Woertz, he told Lerner that it
was indicated to him that those documents (GC Exh. 92) were
signed after he requested them; that Lerner did not respond to
him; that the session ended at 5:50 p.m.; and that the session
lasted approximately 4-1/2 hours.
With respect to the February 9, 2009 bargaining session,
Neimark testified that it was held at Camelot; that he, Lopez,
Frascone, Babcock, Kelly Freeman, Ashley Caulkins, and Ni-
cole Barrett were present for the Union; that Lerner and Kipp
were present for management; that Federal Mediator Meehan,
was present; that the parties started off telling the mediator
what were the outstanding issues, namely wages, health and
welfare, union security, and COPE; that the union wage pro-
posal provided that when an employee worked in a class above
that employee’s class, the employee was paid more but when
the employee worked in a class below that of the employee, the
employee received his or her normal rate; that Lerner was not
willing to give both of those things; that he was advised for the
first time during this session that the employees’ health plan
had been changed; that he made an information request which
is attached to his notes (GC Exh. 67), namely for a list of bar-
gaining unit employees, the monthly census report for both
facilities, the total census and payer source for the last 24
months, staffing reports for both facilities, and copies of the
current health plan; and that the Union was seeking the histori-
cal census information so that it could develop a proposal that
would tie the census to bonuses and because Lerner was deny-
ing the Union financial information, and it was the Union’s way
of figuring out what would be a reasonable economic proposal.
On cross-examination, Neimark testified that before the Feb-
ruary 9, 2009 bargaining session he had several discussions
with the mediator asking him to try to come to bargaining ses-
sions; that for a long time Lerner refused to allow it; and that
finally on February 9, 2009, Lerner allowed the Federal media-
tor to come to the bargaining session.
When called by Respondents, Lerner testified that he invited
the Federal mediator to attend negotiations; that the Federal
mediator had telephoned him a couple of times indicating that
he was available but he told the mediator that they were making
progress on the noneconomic issues; that when the parties were
not making progress on the economic issues he invited the me-
diator to attend; and that the mediator came in February and
March 2009.
On cross-examination, Lerner testified that he was not aware
whether Neimark telephoned the Federal mediator several times
over the course of several months before Lerner finally decided
that it would be appropriate to have the mediator at the bargain-
ing sessions; that the mediator never told him that Neimark
suggested that he telephone Lerner; and that he brought in or
invited the mediator.
When called by counsel for the General Counsel, Sangster
testified that at the time she testified at the trial herein Aetna
was the employee health insurance carrier for Galesburg; that
she believed that the previous health insurance carrier was Blue
Cross/Blue Shield; that she was not sure when Galesburg
changed to Aetna; and that she was not aware if the Union was
notified of the change.
General Counsel’s Exhibit 78 is a February 9 and 10, 2009
exchange of emails between Neimark and Lerner. First,
Neimark advised Lerner as follows:

Today in bargaining, you indicated that the facilities health
plan was changed recently. The facilities neither informed the
union nor bargained with us over this change. As such you
have once again violated your obligation to bargain in good
faith. As such, we are requesting to negotiate over the chang-
es. Please provide both the new plan [and] the old plan (I will
check to see if I have the old one). Also, please provide in-
formation on the deductions for the plans and a list of all em-
ployees who participated in the old one and who participates
in the new one.

Lerner replied as follows:

At bargaining meetings months ago, I did notify you
that both Galesburg and Camelot’s insurance carriers were
going to raise the costs of their plans by very hefty
amounts (I believe over 30%). I told you we were going to
be searching for other carriers. You agreed at the time, and
didn’t request anything. Debbie Kipp is witness to that.
We were able to change to Aetna, which kept the cost
pretty constant, for similar benefits. So stop making your
continued phony accusations, and begin bargaining fairly.
We could wrap things up in short order if you did.

Neimark replied as follows: “I do not recall this at all. Please
indicate the bargaining session in which this discussion hap-
pened so that I can check my notes.” Lerner replied as follows:
“I don’t have my notes with me now, but based on your past
behavior, whatever I tell you, you’re going to deny anyway.
But I would state under oath, and so would Kipp, that I notified
you.” Neimark then replied as follows: “In conversation with
Lori, she indicates that she does remember you mentioning that
you were looking, but that we never agreed and we were never
informed that you intended to change carriers. You still did not
fulfill your duty to inform us of a major change.” Neimark
testified that he did not receive any prior notice that manage-
ment intended to actually change carriers, he did not receive
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1976
notice of the actual change in carriers, and the Union was not
given an opportunity to bargain over the change in health insur-
ance carriers.
Frascone testified, when called as a rebuttal witness at the
end of the second session, that she remembered having the
conversation with Neimark which is referenced in General
Counsel’s Exhibit 78; that Neimark was correct in his February
10 email to Lerner that she recalled it being mentioned when
they met at Camelot that the Respondents were looking; that
she could not remember who brought it up at the meeting; that
Respondents informed the Union just that they were looking
into changing health insurance carriers; that the Union was
never told that there was in fact going to be an actual change of
insurance carriers for either Respondent; and that the Union
was never offered an opportunity to bargain over that change.
On rebuttal, Neimark testified that he was never given the
opportunity to agree or disagree to the change in Respondents’
health insurance carrier in February 2009.
General Counsel’s Exhibit 79 is, as here pertinent, a Febru-
ary 11, 2009 email exchange between Lerner and Neimark.
Lerner indicated to Neimark as follows: “We provided you the
new plan at the bargaining session, and will be faxing you the
participants. The payroll deductions are $97.50 at Galesburg
and $145 at Camelot.” Neimark responded as follows: “You
did not provide the new plan. You indicated that you needed to
make a copy. I looked at it for 1 minute.” Neimark testified that
he subsequently received a copy of the plan.
Administrator Marna Anderson, who was hired by Camelot
in 2004 as director of nursing and who became administrator of
the facility in 2006, testified, when called by counsel for the
General Counsel, that the current health insurance carrier is
Aetna Insurance, which has been Camelot’s insurance carrier
since October or November 2008; that before that Unicare was
the insurance carrier when she was hired by Camelot in 2004;
that Aetna was retained because Unicare was going to raise
their rates, copays, and deductibles; that Aetna cost $7 more a
pay period than Unicare before Unicare was going to put the
increases in place; that notice was posted, employees attended a
meeting in the summer of 2008 conducted by the insurance
agency Camelot utilized, the differences were explained, and,
by a show of hands, the employees chose Aetna; that she be-
lieved that in November 2007 she sent a letter to Neimark ad-
vising him that Camelot was looking at different health insur-
ance plans and if he had any questions he should telephone her;
that Neimark never did ask her about this; that in her May 5,
2009 affidavit to the Board she testified that “[t]he union was
notified of the change in the insurance carrier. I believe that Mr.
Lerner sent them a letter stating that we were looking into get-
ting a better plan for the employees. I do not know when this
letter was sent” (Tr. 641); and that she did not indicate in her
affidavit that she had sent a letter to Neimark.
When called by Lerner, Anderson testified that Aetna has
been Camelot’s insurance carrier since November 2008; that
the prior insurance carrier, Unicare, was going to raise the rates,
the copay and deductibles; that Respondents’ Exhibit 19 is a
letter she sent to Neimark, dated “July 1 , 2007”13; that the
letter does not have Neimark’s address or the address of the
Union; that she signed the letter, which advises that (a) Camelot
is looking for bids from other insurance carriers because Unica-
re’s costs are increasing; (b) Camelot will be canvassing its
employees regarding this matter; and (c) Neimark should notify
Camelot as soon as possible if he has any problems with this;
and that Neimark did not reply to this letter.
On cross-examination, Anderson testified that she probably
had a meeting with employees in the summer of 2007 about the
health insurance carrier situation; that she had another meeting
with employees in 2008 regarding this matter; that she did not
inform Neimark of the 2008 meeting with employees with re-
spect to the health insurance carrier situation; that the Union
was certified at Camelot on October 10, 2007; that the letter she
sent to Neimark about considering changing the health insur-
ance carrier was dated July 1, 2007, before the Union was certi-
fied as the collective-bargaining representative of the employ-
ees at Camelot in the involved bargaining unit; that after the
Union was certified, Camelot had subsequent meetings about
changing health insurance carriers and she did not notify
Neimark; that they decided to change health insurance carriers
in October or November 2008; that when Camelot decided to
change neither Neimark nor the Union were notified of the
change and Camelot did not offer to bargain over the change;
that Neimark was not notified of the meetings which were con-
ducted immediately prior to the change of health insurance
carriers in 2008; that Camelot’s coverage under Unicare was an
annual plan; and that the July 1, 2007 letter to Neimark would
have been before Camelot had to make a decision on the health
insurance carrier on August 31, 2007, regarding Unicare in-
creases which were effective as of September 1, 2007.
When called by Respondents, Lerner testified that Respond-
ents’ Exhibit 19 is a letter that Camelot notified Neimark in
July 2007 that it was looking for an alternative health insurer
because it needed to avoid a large cost increase, and it was
going to canvass the employees; that the Union did not make
any objections at the time to him, “They didn’t contact me, they
showed no interest in the issue” (Tr. 803); that he had no recol-
lection why at the bottom of Respondents’ Exhibit 19 there is
an indication that the document was faxed from Gem to some
other location on July 10, 2007; and that it looks like 9 days
after Anderson wrote the letter she asked him to fax it to her.
General Counsel’s Exhibit 80 is an email Lerner sent to
Neimark on February 11, 2009. It reads as follows:

Your request for census information is not being hon-
ored, as it is financial in nature. Unless you can show me
differently, NLRA rules don’t require us to provide you
our sales and income information.

13 Anderson testified on voir dire that a digit is not missing after “1”
rather the space is a typo on her part; that she did not mention this letter
when she gave her affidavit to the Board in May 2009; that she never
produced the letter because she did not believe that she was asked for
it; that she said that she believed that Lerner sent a letter to Neimark;
that they started talking about the policy change probably in the sum-
mer of 2008; and that she never notified Neimark of the switch and this
is the only communication that she claims she had with Neimark.
CAMELOT TERRACE

1977
The employee information you requested will be pro-
vided to you next week. The Camelot bookkeeper is on
vacation this week. If you don’t have it by next Thursday,
call Marna.

When called by Lerner, Anderson testified that the census in-
formation the Union requested in February 2009 was provided
in May 2009; and that she did not provide the information
sooner because Lerner told her that she was not required to
provide this information because it was financial information.
With respect to the February 18, 2009 bargaining session,
Neimark testified that it was held at Galesburg; that he, Lopez,
Babcock, and Kilpatrick were present for the Union; that Ler-
ner and Kipp were present for management; that Federal Medi-
ator Meehan was also present; that the parties discussed wages
and insurance; that the Union made several economic pro-
posals, which are included in his notes (GC Exh. 67); that Ler-
ner said that he was not going to be giving any wage increases
in Galesburg, aside from the 10 cents since he thought that they
did not need a wage increase; that Lerner indicated that he was
willing to do an indemnity health insurance plan where he pays
a little bit every month; that Lerner said, “The only way I see
agreement is leaving the wages where they are and the health
Insurance plan” (Tr. 473); that Lerner was referring to his
health plan, which Neimark described as a low cost indemnity
plan, which pays a flat amount which barely covers the cost of
most procedures; Lerner said that he had no reason to give a
wage increase, and if the Union was going to keep requesting a
wage increase “we were at impasse” (Id. at 473); that he told
Lerner that there was no impasse, and he did not have the right
to declare an impasse; that at some point he asked Lerner what
he meant by declaring impasse, and Lerner said, “Well, because
we are at an impasse, we don’t have to meet every week any-
more” (Id. at 475); that the Union then delivered another wage
proposal at about 2:15 p.m.; that Lerner said that it was way
above what management was willing to give, he did not believe
in shift differentials, he was not interested in wage reopeners,
management had no problem with what they pay people, and he
countered with 10 cents again for CNAs only; that management
was asking for a 4- or 5-year contract and he asked Lerner
about the additional years; that Lerner said that he was not yet
proposing anything for those years; that at some point Lerner
rescinded his impasse declaration; that the Union gave man-
agement another wage proposal, which is in his notes; that Ler-
ner would not move off the 10 cents for the first year for CNAs
only; and that Lerner would not put anything in writing at that
point so the Union did not have anything in writing from Lerner
with the 10 cents in it.
General Counsel’s Exhibit 81 is a February 19 and 23, 2009
email exchange between Neimark and Lerner. First, Neimark
advises Lerner as follows:

Noticed a few discrepancies on the lists you gave me.
Hoping you can get an explanation.
The following employees were listed on the payroll
worksheet but were not on the employee list:. . . .
The following employees were on the employee list
but not on the payroll worksheet: . . . .
Please provide an explanation on why the following
employees received multiple pay raises in a given year or
received a pay raise in their first year of employment: . . . .
Please explain:
Bonnie Simons, Housekeeping Aide, current pay
$10.56—hired in 1/07 at 9.95, raised to $10.25 in 2/07 and
$10.56 in 2/08—all other people in position are paid
$7.75.

Lerner responded as follows:

The missing pages of the list were provided to your
rep. Crystal Lopez.
Notwithstanding our doubts if you’re legally entitled to
request this specific employee information, in the spirit of
cooperation, we will provide the information we have.
Firstly, when there’s no union contract in place, it is en-
tirely up to the department heads to decide someone’s sal-
ary and raises, based on their performance and also the fa-
cility’s staffing needs. So there can always be inconsisten-
cies, between employees, as the employer can decide
what’s best for the facility at that time.
In response to your specific questions, unfortunately
we don’t keep records of why certain staff gets different
raises than others. We therefore cannot give you complete-
ly specific answers to all our questions, but we can give
you the general recollections of our administrator.
Fortson, Jackson and Miller were all hired at a time
when CNA’s were in very short supply. So, beside[s] re-
ceiving a 90 day evaluation raise, they likely received an
incentive raise to stay.
Rhodes received an extra raise to be on the shower
team.
Sorenson worked in laundry, then kitchen, and then
got certified and began working as a CNA. There was a
pay increase during those changes and her certification.
Bonnie Simons—you clearly have been misinformed.
She’s been working at Camelot for approx. 25 years, and
has regularly earned raises along the way.

Neimark testified that he was not made aware of the Employer
giving incentive raises to bargaining unit employees; that the
incentive raises were given at a time when the Union was a
certified representative of the bargaining unit; and that he was
not given any prior notice of the Employer giving of incentive
raises to certain bargaining unit employees, and he was not
given an opportunity to bargain over this.
Patrice Prang, who was acting director of nursing (DON) at
Camelot from January to March 2009 when she became the
full-time DON at Camelot—which position she left in July
2009 to go back to being a staff nurse, testified that she was not
aware of (a) any program of incentive raises for CNAs or (b)
CNAs being given incentive raises since the time she worked at
Camelot.
When called by counsel for the General Counsel, Anderson
testified that she was aware that some CNAs, due to shorthand-
edness, were given incentive raises; that when she was DON if
she was really desperate for help she could say that she proba-
bly did give incentive raises to CNAs, telling them that after
their probation they would receive an increase in pay; that in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1978
her May 5, 2009 affidavit to the Board she testified as follows:
“We have always given the CNAs short pay. If by census, we
are supposed to have three CNAs and only two show up, those
two are given extra pay, short pay. I’m not aware of any other
incentive pay we give CNAs.” (Tr. 643.)
Lerner subsequently elicited the following testimony from
Anderson:

Q. Okay. And do you remember if Camelot gave an
incentive raise in 2009?
A. No.
Q. Let’s rephrase that. Did Camelot give an incentive
raise in 2009?
A. To a CNA?
Q. Yes.
A. Yes.

When called by Lerner, Anderson testified that when she
was DON she would tell a CNA who had good references that
she would receive more money after 90 days. On cross-
examination, Anderson testified that the discretion that she
exercised in giving an employee a raise as a DON is not written
anywhere.
When recalled by Lerner, Anderson sponsored Respondents’
Exhibit 26, which is a new employee verification form for
Melanie Shelton, which is signed by both Shelton and Huffman
as DON. The form, which refers to a starting date of “5/9/07,”
indicates (1) a starting wage of “$8.50/ hr” and a postproba-
tionary wage of “$9.00/ hr,” and (2) the job is part time and the
employee is on the list for full time. Regarding this situation,
Anderson testified that she recalled Huffman asking her if she
could give Shelton more money because Shelton was a good
CNA and Huffman wanted to keep her on staff; and that it kind
of sounded like Shelton indicated that she was going to leave if
she did not get the increase, “[t]hat she could go somewhere
else and get that amount of money or more” (Tr. 757). Huffman
was not called by Lerner to explain the situation.
On cross-examination, Anderson testified that in her May 5,
2009 affidavit to the Board she did testify as follows: “We have
always given the CNAs short pay. By census, we are supposed
to have three CNAs and [if] only two show up, those two are
given extra pay, short pay. I am not aware of any other incen-
tive pay we give CNAs.” Anderson testified further that this
was her testimony at the time but when she reviewed employee
files she saw the Shelton document and she did remember tell-
ing Huffman that they could give Shelton more money; that as
DON in 2004 she gave incentive pay to CNAs; that she did not
know if Erica Fortson, Kathy Jackson, and Christina Miller
received incentive raises because Camelot was short CNAs and
she thought it was “because they were possibly good workers
and we wanted to keep them on board” (Tr. 760); and that it is
not a written policy where employees are given incentive pay
because Camelot is short on CNAs and it needs them to stay.
On redirect, Anderson gave the following testimony:

Q. BY MR. LERNER: You say it’s not a policy, but it’s
in your past practice to give money as a situation required
in order to keep an employee from leaving?
A. Yes, I would say yes.

With respect to the February 25, 2009 bargaining session,
Neimark testified that it was held at Camelot; that he, Lopez,
and Babcock were present for the Union; that Lerner was pre-
sent for management; that Federal Mediator Meehan was pre-
sent; that the parties discussed wages; that Lerner said that (a)
he would not agree to anything that gives anything more to
people that have been there for less than 5 years; (b) he was not
in agreement with any increases upon ratification; and (c) he
had no interest in giving additional money, no compounding of
increases; that since the Union was not making any headway on
wages it proposed that when employees had perfect attendance
they would receive a bonus, a short pay bonus, a residential
referral bonus, a quarterly census bonus, and a vent unit premi-
um pay of $1 above what everyone else was paid since the
nurses were being paid more to work on the vent unit; that Ler-
ner rejected all of the bonus proposals, except the resident re-
ferral bonus; that Lerner indicated that census is not a function
of the employees’ performance and he was not aware of LPNs
getting additional money for working on the vent unit; that
Lerner said that “people should just be happy to have jobs” (Tr.
481), and he was not having a problem with getting people to
come to work; that he asked Lerner for attendance records for
all employees at Galesburg and Lerner denied the request; and
that he made this request because he wanted to verify Lerner’s
statement that he was satisfied that he was able to get people to
work.
On rebuttal, Neimark testified that when Lerner refused to
provide Galesburg attendance records at the February 25, 2009
bargaining session Lerner said that he believed he did not have
to; that Lerner did not say it was because the information did
not exist; that at some later date Lerner said that such things do
not exist; that he then asked Lerner how he could have a policy
in which management gives somebody a verbal warning after
three absences in a year; that Lerner responded, “Oh, that’s a
good point.” (Tr. 875); and that the Union never did get these
records.
Regarding the March 5, 2009 bargaining session, Neimark
testified that he could not find his notes for this session; that
Lerner gave him a written proposal for Galesburg in which
Lerner was proposing “A ten-cent increase for CNAs, a year
two, three, four, and five, at one and a half percent raise, no
reopener of wages during the contract term, and a resident re-
ferral bonus of $200” (Tr. 482); and that other employees at the
Galesburg facility would receive no increase.
Neimark testified that after the March 5, 2009 session he in-
dicated that he needed to talk to the Union’s members; that he
indicated that he intended to talk with the members one on one
in small groups to find out how they felt and if this was some-
thing they would agree to and vote yes on if the Union took it
to ratification; that a ratification vote was not taken because it
was clear that it would be rejected; that he did go out and speak
to his members, organizers spoke with members on breaks, “we
visited them in their homes, [and] called them on the phones,
etc.” (Tr. 484); and that after speaking with the members it was
his feeling that “this absolutely would not be accepted” (Id. at
485).
When called by Lerner, Kipp testified that at the March 5,
2009 bargaining session management had given Neimark an
CAMELOT TERRACE

1979
economic proposal and Neimark said that he would take it to
his members, and it would take him 3 weeks to get that accom-
plished; and that the parties did not meet on the fourth week
because Neimark was ill.
Rhodes, who is a CNA at Camelot, testified that she was
hired by Camelot on February 23, 2007; that her direct supervi-
sor is Administrator Anderson; that she works 72 hours in an
average pay period; that her rate of pay is $9.55 an hour; that
Camelot holds regular payday meetings every 2 weeks on Fri-
day in the dining room at Camelot at 1:30 in the afternoon, and
it is mandatory that everyone attend; that such a meeting was
held on March 6, 2009; that Anderson conducted the first part
of the meeting; that Prange, who is the new director of nursing
(DON), then asked the nursing staff to remain in the room; that
Prange went over some of the things she expected from the
nursing staff, including that the nursing staff should call Came-
lot first instead of calling Prang on her cell phone; that Prang
“then talked about a new policy that was going into effect . . . .
[, namely] [i]f you missed five days in a calendar year, you
were terminated.” (Tr. 588); that Prang said that this attendance
policy was going into effect “immediately” (Ibid); that General
Counsel’s Exhibit 91 (which is set forth below) was not shown
to her by Prang on March 6, 2009, but it contains the same
terms as Prang verbalized on March 6, 2009; that she did not
sign anything at this meeting other than to show she attended
this meeting; and that she never saw the policy in General
Counsel’s Exhibit 91 posted anywhere in the facility.
General Counsel’s Exhibit 91 reads as follows:
CAMELOT TERRACE
ATTENDANCE POLICY
It is the responsibility of the employee to check the
schedule frequently for changes and revisions. You are ex-
pected to arrive on time for all scheduled days/shifts.
During the 90 day probationary period the employee is
required to work all scheduled shifts without exception.
During the 90 day probationary period if the employee
calls off one time it will result in immediate termination.
After the 90 day probationary period is over the fol-
lowing procedure will be used:

2nd call off within one year = verbal warning
3rd call off within one year = written warning
4th call off within one year = suspension without pay
5th call off within one year = termination

If the employee fails to show up for a scheduled shift
and does not call off they will be immediately terminated
with no possibility for re-hire.

___________________________ ____________________
Signature of Employee Date
[Emphasis in original.]

On or about March 9, 2009, Rhodes contracted a bronchial
respiratory infection, she had to go to the emergency room in
Streator, and she was off work the next 2 days with breathing
treatments.
Rhodes returned to work on Wednesday, March 11, 2009.
Rhodes testified that she was still real sick, she could not work
a whole day, and she left the facility; and that on March 11,
2009, at 3 p.m. Prang telephoned her on her cell phone and she
had the following conversation with Prang:

She [Prang] called me to tell me that she was terminat-
ing me and I actually thought it was a joke and laughed at
her. She said, “No,” she was serious, that I was being ter-
minated and I asked her for what, and she said because I
missed the five days. I said, “Even with a doctor’s note,”
and she told me, “Yes,” that the doctor’s note did not mat-
ter.
. . . .
She [Prang] just told me that they were making her
terminate me. [Tr. 591.]

Rhodes further testified that she never received a letter indicat-
ing that she was being discharged; that she did not know the
attendance policy of Camelot prior to March 6, 2009; that she
never saw it posted in the facility; that she received a copy of
the employee handbook when she was hired in February 2007;
that the employee handbook indicated that management had the
right to terminate an employee at any time they wanted for any
reason; that there was nothing in the employee handbook that
resembled the policy that Prange explained on March 6, 2009;
that at the time of the announcement of the attendance policy
on March 6, 2009, employees “were entitled to four sick days,
and that was either three or four personal days within a year”
(Tr. 592); that this is more than 5 days; that at the time of her
discharge she had remaining paid time off, namely 1 personal
day left; that she had never received a verbal warning from
Camelot for missing days of work; and that she had never re-
ceived a written warning of a suspension.
On cross-examination, Rhodes testified that a document (R.
Exh. 14),14 with her signature and with the signature of Director
of Nursing Julie Huffman, who signed the document on “2–23–
07,” was a fabrication to the extent that it contains language
about Camelot’s absence policy in that this language was not
there when she signed the document when she was hired. Ler-
ner then elicited the following testimony:

Q. BY MR. LERNER: After you were terminated, did
you call Julie Huffman on the phone?
A. No, I did not. I don’t have Julie Huffman’s phone
number.

Lerner did not call Huffman as a witness.
Rhodes testified that she eventually went to her own family
doctor on Friday, March 13, 2009; and that her doctor recom-
mended that she take the week off from work.
Prang testified that she was hired by Camelot in April 2007
as a staff nurse; that in March 2009 she agreed to take the direc-
tor of nurses (DON) position; that at the time of her testimony
herein she was a staff nurse; that as DON she had authority to
hire and fire employees; that, as noted above, she stepped down
from the DON position about 1 month before she testified at the

14 R. Exh. 14 was not received in evidence. As noted below, this em-
ployee report form was received in evidence as part of GC Exh. 97,
which are documents Anderson forwarded to counsel for the General
Counsel after Anderson gave her May 5, 2009 affidavit to the Board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1980
trial herein (Prang testified on August 26, 2009); that there was
no change in the attendance policy at Camelot when she was
DON; that when she became DON the policy was the same as
when she was hired in April 2007, and that the policy did not
change between April 2007 and when she testified at the trial
herein; and that the policy is as follows:

if an employee called off two times within a year, they would
receive verbal counseling. if they called off three times within
a year, there was a written warning given. On the fourth call
off, I believe it is one day suspension without pay. And after
five call-offs, subject to termination. [Tr. 610.]

Prang further testified that the attendance policy on General
Counsel’s Exhibit 91 was the attendance policy she was given
at the time of her hire in April 2007; that on March 6, 2009, she
conducted a meeting for nursing staff to discuss her expecta-
tions as DON; that the meeting was conducted as part of the
regular payday in-service; that several of the nurses and the
CNAs were present for her portion of the meeting; that the
attendance policy described in General Counsel’s Exhibit 91
was presented to the employees on March 6, 2009, as, this is
our attendance policy, please be aware of it; that she showed
the employees the sheet and then she had a binder and she told
the employees that the sheet would be in the binder at the nurs-
es station for everyone to review; that she was not aware if the
sheet was posted anywhere in the facility after this meeting;
that before the March 6, 2009 meeting she was not aware if the
attendance policy was posted anywhere in the facility; and that
with respect to whether the policy contained in General Coun-
sel’s Exhibit 91 is contained in the employee handbook at
Camelot:

It’s in a packet that was given at the time of employment that
has W-4 forms and sign that you’ve received your name
badge, resident rights policy is in there, just several different
things that they want you to be aware of, your responsibilities
and your expectations as an employee. And you sign those
things at the time of hire. [Tr. 612.]

Prang then gave the following testimony:

JUDGE WEST: I’m sorry for interrupting. You sign
those things at the time of hire? So the employee signs off
on something which would indicate what the attendance
[policy] was at the time of hire?
WITNESS: I don’t believe they sign the attendance poli-
cy. I did not sign my attendance policy, but it is in a packet
of papers with different facility policies that you’re ex-
pected to take home and read and be aware of. [Tr. 612.]

Prang testified further that she gave an affidavit to the Board on
May 5, 2009, General Counsel’s Exhibit 102—which was not
offered—in which she indicated, “I pulled the attendance policy
from the employee handbook that I received when I was hired
in April 2007. The policy I presented is exactly as it appears in
the employee handbook” (Tr. 614); the testimony that she gave
in her affidavit was related to the meeting of March 6, 2009;
that while she was DON she verbally warned two employees,
and she believed that she issued a written warning for viola-
tions of the attendance policy but she could not recall any of the
employees’ names; that she did not remember ever suspending
any employee as DON for violation of the attendance policy;
that as DON she discharged Rhodes for violating the attendance
policy; that as DON she also, after she gave her May 5, 2009
affidavit to the Board, discharged one other employee, Kathy
Jackson for violating the attendance policy; that Jackson was
reinstated at Camelot; that her predecessor as DON was Deb
Price and she was not fully aware of “how . . . [Price] was en-
forcing attendance policy” (Tr. 616); that in her May 5, 2009
affidavit to the Board she testified as follows: “My predecessor,
Deb Price, was lax in enforcing the attendance policy. I am
enforcing the policy as written”; that prior to being DON she
was not aware of Price not enforcing the attendance policy; that
when she became DON she undertook a review of employee
personnel files starting with CNAs; that she terminated Rhodes
for excessive call outs; that she reviewed Rhodes personnel file
the day she was terminated; that she discussed terminating
Rhodes with Administrator Anderson and Lerner; that she
brought up the fact that Rhodes had five absenteeism in the first
3 months of the year, which was a violation of the policy as she
understood it; that “[i]t was a general consensus between Mar-
na, myself, and Mr. Lerner” that “it was a violation of the poli-
cy and . . . [Rhodes] should be terminated” (Id. at 619); that
general consensus here means that she, Marna, and Lerner dis-
cussed it together; and that in her May 5, 2009 affidavit to the
Board she testified as follows:

After I discovered that Ms. Rhodes was over the limit for the
number of call-offs, I discussed the matter with Marna Ander-
son, administrator, in her office. Mr. Lerner was also present
at the time for one of his regular visits. I brought the frequent
call-offs to the attention of Marna and Mr. Lerner. I also
brought up the policy she signed at hire and that I had re-
viewed only a few days before. I said I felt it was grounds for
termination. They discussed it outside of my presence. They
called me back into the office and we were all in agreement to
terminate Kathy Rhodes’ employment. [Id. at 620.]

Prang testified further that she did not follow the procedure set
forth in General Counsel’s Exhibit 91 (Camelot’s
“ATTENDANCE POLICY”), namely giving a verbal warning
first, then a written warning, then a suspension without pay
before terminating Rhodes “[b]ecause . . . [Rhodes] had violat-
ed the excessive call-off policy that she had been reminded of
just a few days earlier” (Ibid.); and that she started her review
of personnel files in March 2009 because that is when she went
from acting DON (starting in January 2009) to full-time DON.
Subsequently, Prang testified that when she telephoned
Rhodes and terminated her she did not tell Rhodes, “They are
making me fire you” (Tr. 624); that when she was hired in
April 2007 she signed a employee report which gave her shift,
her wage, and her job title; that she kept a copy of the employee
report in her own records; that her employee report does not
have, as Respondent’s Exhibit 14 (contained in GC Exh. 97)
does, an attendance policy; that in March or April 2009 she
hired two CNAs and she wrote the attendance policy on their
employee reports; that during her review of employee files as
DON she saw the attendance policy written on the employee
reports of Julie Sieber and Melanie Shelton and some others
CAMELOT TERRACE

1981
who she could not recall; that Sieber signed her employee re-
port in 2007; and that there was something in the employee
packet which they received when they were hired, in addition to
the employee handbook, which gave the attendance policy.
Prang then gave the following testimony:

Q. . . . That being the case, if the employee received a
document indicating what the Respondent’s attendance
policy was, why would it have been necessary for some-
one to handwrite on the employee report what the attend-
ance policy was?
A. I don’t know why the predecessor who hired these
people felt that it was necessary, but I took the initiative to
do it on the ones that I was hiring because there had been
so much controversy over people not understanding what
the existing attendance policy was. So I thought that
would just be something that I went over at hire that my
new employees are aware that this is what the policy is
here.

Prang testified further that when she was hired in 2007 whoever
was responsible for filling out the employee report for Prang
did not feel it was necessary to include the attendance policy in
handwriting on the employee report; and that the “controversy”
consisted of a number of employees indicating, after Rhodes’
termination, that they were not aware of the attendance policy.
At the outset of her testimony Prang testified that she was
employed by GEM Health Care for Camelot Manor Terrace.
After acknowledging that Lerner owns Camelot, Prang gave the
following testimony:

Q. BY MR. LERNER: Can you define what you meant
by controversy?
A. Just a lot of the staff members—there was a lot of
talk after Kathy was terminated and a number of the staff
members said that they did not know that. I got calls at
home saying, “If I missed five days of work, do I come to
work tomorrow?” And I had to explain to people that it’s
not five days of work missed necessarily, but five separate
call-offs.
Q. Okay. So there was [sic] a lot of questions about it?
Would that be a better term than controversy?
A. Yeah, probably, yes.
Q. Okay.
MR. LERNER: No further questions.

Subsequently, Prang testified that she first saw General
Counsel’s Exhibit 91 when she was hired in April 2007; and
that at the bottom of General Counsel’s Exhibit 91 there is a
line for the “Signature of Employee” and “Date.” When asked
if she signed this “ATTENDANCE POLICY” form when she
was hired, Prang testified as follows: “I don’t recall if I signed
it or not. I know it was in the packet that was given to me and I
was aware of it, but I don’t recall if I signed it or not.” (Tr.
631.)
Later, in response to a question of Lerner, Prang testified that
“a number of employees” was a total of three or four calls or
text messages. And then in response to questions of the Union’s
attorney, Prang testified that she received three or four text
messages, three or four calls but some of the texts were from
the same people who had called, and some just kept calling.
Also, she testified that she spoke with a couple of people the
next day about the attendance policy. Then when Lerner asked
her how many in total asked her about the attendance policy,
Prang testified that it was the same three of four repeatedly.
When called by counsel for the General Counsel, Anderson
testified that Camelot’s attendance policy is contained in the
employee handbook; that General Counsel’s Exhibit 91, which
is titled “CAMELOT TERRACE ATTENDANCE POLICY,”
was in existence in 2004 when she was the DON; that this poli-
cy is in the employee packet; that employees sign the document
and the document would be kept in the employee file; that eve-
ry employee is supposed to sign the form received as General
Counsel’s 91 when they are hired; that every employees’ file
should have this signed form in it; that she had employees who
she hired sign this attendance policy form; that the attendance
policy in General Counsel’s Exhibit 91 is not found in the em-
ployee handbook (GC Exh. 93); and that in her May 5, 2009
affidavit to the Board she testified as follows:

The employer’s attendance policy has not changed since I
have been employed here. Under the attendance policy, after
the 90-day probationary period an employee who calls off
twice is subject to a verbal warning. An employee who calls
off three times, receives a written warning. An employee who
calls off four times is suspended. And an employee who calls
off five times is terminated. That policy is contained in the
employee handbook. All new hires receive an employee
handbook and must sign that they received it. I do not re-
member if the policy has been posted on the bulletin board,
but everyone gets it in the employee handbook. [Tr. 646 and
647.]

Anderson testified further that General Counsel’s Exhibit 97 is
a letter that she sent to counsel for the General Counsel on May
6, 2009, the day after she gave her affidavit to the Board; that
she attached to this letter are absence reports of Camelot em-
ployees (The exhibit also contains (1) a copy of the
“CAMELOT TERRACE ATTENDANCE POLICY,” received
herein as GC Exh. 91, with what purports to be the signature of
Shelton dated “5/8/07,” (2) a copy of an “EMPLOYEE
REPORT” for Sieber, which has a “JOB TITLE” of CNA, a
“START DATE’ of “2/21/07,” a “DATE/ACTION” of
“2/21/07,” a “SUPERVISOR” box with the signature of Huff-
man RN dated “2/25/07,” an “ADDITIONAL SIGNATURE”
box with the signature of Anderson dated “2/26/07,” and what
purports to be the employee’s signature,15 (3) a copy of an

15 With respect to this document, no explanation was given regarding
why if the “START DATE” and “DATE/ACTION” are “2/21/07”
Huffman’s signature is dated “2/25/07” and Anderson’s signature is
dated “2/26/07” when in comparison with the next page in the attach-
ment—the “EMPLOYEE REPORT” of Rhodes—Huffman’s signature
is dated “2/23/07” which is the same date as the “START DATE,” the
“DATE OF ACTION,” and the date Rhodes signed that form. As here
pertinent, in the “DESCRIBE WHAT HAPPENED” portion of Sieber’s
and Rhodes’ incident reports titled “EMPLOYEE REPORT” the fol-
lowing appears:
attendance policy: 2 call-ins in 1 year = verbal warning
3 call-ins in 1 year = written warning
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1982
“EMPLOYEE REPORT” for Rhodes, which has a “JOB
TITLE” of CNA, a “START DATE’ of “2/23/07,” a
“DATE/ACTION” of “2/231/07,” a “SUPERVISOR” box with
the signature of Huffman RN DON dated “2/23/07,” a blank
“ADDITIONAL SIGNATURE” box and Rhodes’ signature,16
and (4) an unsigned copy of General Counsel Exhibit 91); that
according to the absence reports attached to the letter, (1) Cam-
elot CNA Jim Melvin has four absence reports between
“8/11/08” and “11/12/08” and she did not believe that Melvin
was suspended for these absences, (2) Miller has four absence
reports between “3/10/08” and “12/29/08” and she did not be-
lieve that Miller was suspended for these absences, (3) Jackson
had four absences inside of a year and Jackson was not sus-
pended, and (4) Diane Bauer had 10 absences in 1 year and she
was not discharged for those absences; that the copy of the
“CAMELOT TERRACE ATTENDANCE POLICY,” received
herein as General Counsel’s Exhibit 91, with what purports to
be the signature of Shelton dated “5/8/07” is the only example
Anderson included in this submission of an employee who
signed the attendance policy that was in their personnel file;
that as indicated in General Counsel’s Exhibit 101, between
August 1, 2008, and August 1, 2009, the following bargaining
unit employees had the following number of absences and
none, except Rhodes, was disciplined or discharged:

Dolly Barrett 9
Cynthia Blom 10
Anita Mullaney 6
Sabrina Oxnart 5
CNA Diane Bauer 9
CNA Jolene Daugherty 12
CNA Sherry Fitch 4
CNA Cathy Jackson 7
CNA Jim Melvin 7
CNA Christina Miller 7
CNA Kathy Rhodes 5
Kay Crow 4
Julie Lyle 4
Nicole Pleskovitch 4

Anderson testified further that she has the authority to hire and
fire and managers have the authority to hire and fire; that the
DON, among others, is a manager; that she participated in the
decision to discharge Rhodes; that Prang came to her and told
her that since the short time that Prang was DON Rhodes had
five absences; that she reviewed Rhodes’ employee record and
Prang pointed out that Rhodes signed it and it indicates if she
had five absences it was termination; that she agreed with
Prang that it would be termination for Rhodes; that Prang did
not point out that any of the other CNAs in General Counsel’s
Exhibit 101 had more absences than Rhodes; that the only CNA
absence question that Prang presented to her was that of
Rhodes; that she and Prang agreed that Rhodes was going to be
terminated; that Lerner walked into her office and asked her

4 call-ins in 1 year = 3 days suspension without pay
5 call-ins in 1 year = termination
16 As noted, this is the same document which was marked for identi-
fication as R. Exh. 14.
what was going on; that she and Prang explained the situation
to Lerner and told him that they were going to terminate
Rhodes; that Lerner said, “If that’s what it says in the record,
that’s what it says in [the] record. If she’s got five, then she’ got
five” (Tr. 657); that Lerner did not try to dissuade her from
discharging Rhodes; that there was no further conversation at
that time; that she did not think that anyone was fired before
Rhodes for violating the attendance policy; that she did not
personally fire Rhodes; that she did subsequently send Rhodes
a letter reinstating her employment; and that she was not aware
of anyone being discharged or disciplined as a result of this
attendance policy since Rhodes’ termination.
In response to questions of Lerner, Anderson testified that
Huffman wrote the absence policy on the employee reports and
at a point in time the absence policy was typed as a separate
document, i.e., the last page of General Counsel’s Exhibit 97.
Anderson testified further that the Union was certified at
Camelot in 2007 and the absence policy typed document was
typed in March or April 2007; that she did not know if there
were handwritten attendance policies on employee reports other
than the ones for Rhodes and Sieber; that Lerner did not play
any role in the decision to rehire Rhodes; that she wanted
Rhodes back to work; that she was advised to hire Rhodes back
because of the settlement agreement; that she did not see the
settlement agreement but Lerner told her about the settlement
agreement and that is why she hired Rhodes; and that she want-
ed Rhodes back anyway because Rhodes is a good worker.
When called by Lerner, Anderson testified that the absence
policy in General Counsel’s Exhibit 91 was in place when she
was hired in 2004, it was part of the employee packet, but it did
not have a signature line or a date; that she did not sign a doc-
ument like General Counsel’s Exhibit 91 when she was hired;
that she received a copy but she did not sign it; that subsequent-
ly DONs were writing the policy longhand on a form; that
when that got tedious they went to the typed attendance policy
with a signature line; that Respondents’ Exhibit 16 is Rhodes
absence reports; that when Rhodes was terminated the absence
reports back to January 2009 were relied on; that other people
who had five absences during 2009 were not terminated; and
that Huffman was DON when she signed Rhodes employee
report on “2/23/07.”
On cross-examination, Anderson testified that Sieber still
works at Camelot; that she signed Sieber’s employee report
which is contained in General Counsel’s Exhibit 97; that she
did not sign Rhodes employee report which is contained in
General Counsel’s Exhibit 97; that she did not sign Rhodes
employee report because “I don’t have to sign these. I leave
these up to managers” (Tr. 721); and that in view of this, she
did not recall why she would have signed Sieber’s employee
report.
General Counsel’s Exhibit 82 is an email exchange during
the period of March 6–25, 2009, between Neimark and Lerner.
First, Neimark advised Lerner as follows:

It has come to my attention that a new attendance poli-
cy has been posted at Camelot Terrace today. This was
done without negotiating a change in the terms and condi-
tions of employment, as such it is a violation of the
CAMELOT TERRACE

1983
NLRA. We are demanding that the policy be retracted un-
til such time that you have negotiated this change in poli-
cy.
Furthermore, we are demanding that you reinstate the
hours that you have taken from laundry and housekeeping
employees, also in violation of the act.

As here pertinent, Lerner replied as follows:

. . . .
Facility didn’t post a new attendance policy. The policies that
were hung were clearly dated 2/28/07 and 3/1/07. In fact, they
weren’t even new then, as they were just a reiteration of
what’s in the policy book. In addition, we’re not even sure
who hung them now, because administration didn’t. But since
they were clearly old policies, your allegations are meritless.

As here pertinent, Neimark replied as follows:

. . . .
. . . I am now in possession of the attendance policy in ques-
tion. There is no “clearly dated” marking on the page. I com-
pared the page with the policy book, and it is not even close to
a reiteration of “what’s in the policy book.” The administra-
tion posted the new policy following a payday in-service on
March 6 when it was announced by the Director of Nursing
that the new policy was being implemented.
. . . .
. . . on 3/11/09, the facility terminated Kathy Rhodes for a vi-
olation of the newly posted illegal policy. We understand that
the facility was interested in terminating her because of her
light duty status and her workers comp liability.
In sum, the union is demanding that . . . the facility
withdraw the illegally established new policy, reinstates
Kathy Rhodes and pays her for all time lost due to your
violation of the law. If you do not immediately cease and
desist from your illegal behavior and make Ms. Rhodes
whole for her losses, the union will pursue this not only
with the NLRB, but also will use all other avenues, includ-
ing the American with Disabilities act and the Illinois
Workers Compensation law.
. . . .

As here pertinent, Lerner replied as follows:

Please provide me with the “new attendance policy”
you are referring to, so I can check it out. To my
knowledge, we are currently operating with a policy that
was implemented 3–4 years age which, in fact, mirrors the
agreement Rhodes had signed upon employment, over 2
years ago. The DON was only reiterating an existing poli-
cy; nothing new was ever implemented.
. . . .
Kathy Rhodes’ termination was for her violation of the
existing facility attendance policy, and a specific agree-
ment that she signed. You can obtain the documentation of
this by speaking to Marna. It was not because of any of the
scurrilous allegations you have made. The facility has bent
over backwards to accommodate Ms. Rhodes with things
such as light duty, since her injury. The only thing that
caused her to be terminated was her clear violation of the
attendance policy. If after review of the documents you
have an objection, please present it to me. Management
feels very confident that this termination was justified.
But, as always, we’re willing to talk with you about all is-
sues.

Neimark testified that it had been called to his attention by
employee Lopez that there was a meeting of CNAs on March 6,
2009, they were handed a new policy on attendance, and the
director of nursing had indicated that this was a new policy and
posted it at that time; that he had not previously been provided
an attendance policy that looked anything like what he learned
from employee Lopez; that he had been provided the attend-
ance policy that was in the policy manual; that he was not pro-
vided notice of the new attendance policy from management
before it was implemented and the Union was not given the
opportunity to bargain over the implementation of a new at-
tendance policy; that if it was in fact a stricter enforcement of
existing policy, management did not bargain with the Union
over its decision to more strictly implement its attendance poli-
cy; that management did not bargain with him about the termi-
nation of Rhodes; and that management did not contact him to
advise him that management intended to discharge Rhodes
under this new attendance policy.
As noted above, General Counsel’s Exhibit 91 reads as fol-
lows:
CAMELOT TERRACE
ATTENDANCE POLICY
It is the responsibility of the employee to check the schedule
frequently for changes and revisions. You are expected to ar-
rive on time for all scheduled days/shifts.

During the 90 day probationary period the employee is re-
quired to work all scheduled shifts without exception. During
the 90 day probationary period if the employee calls off one
time it will result in immediate termination.

After the 90 day probationary period is over the following
procedure will be used:
2nd call off within one year = verbal warning
3rd call off within one year = written warning
4th call off within one year = suspension without pay
5th call off within one year = termination

If the employee fails to show up for a scheduled shift and
does not call off they will be immediately terminated with no
possibility for re-hire.

____________________________ ____________________
Signature of Employee Date
[Emphasis in original]

Neimark testified that employee Lopez and not management
gave him this form; that this is the policy he understood was
announced to employees on March 6, 2009; that General Coun-
sel’s Exhibit 93 is Camelot’s policy (employee) handbook
(which has GEM HEALTHCARE MANAGEMENT, INC.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1984
printed at the top of the cover sheet)17; and that, as here perti-
nent, the section on “Call Off and Punctuality” on page 26
reads as follows:

Employees must call off at least two hours prior to
their scheduled shift start when they are absent. Failure to
call off [aka no call no show] results in immediate termi-
nation.
In order to ensure proper staffing levels management
reserves the right to refuse a call-off at any time.
Employees who call off on holidays or weekends must
work the corresponding day[s] on the next weekend or
holiday. Calls off on consecutive weekends will accumu-
late requiring continuous weekend duty until satisfied.
Attendance will be a major consideration in promo-
tions, evaluations, and pay raises. [Bracketed material in
original.]

Neimark testified that he was never provided another policy
book of the Respondent in effect at Camelot, and he was never
provided another attendance policy for Camelot other than the
ones contained in General Counsel’s Exhibit 93.
On cross-examination, Lerner testified that notwithstanding
Ruddick’s above-described November 14, 2007 letter to him,
regarding Camelot and Galesburg, requesting, as here pertinent,
employee handbook, any and all disciplinary policies and/or
memos describing the application of the discipline policies or
informing employees thereof, and any and all work rules, he
did not know whether General Counsel’s Exhibit 91 was pro-
vided to the Union; and that the attendance policy, as shown in
General Counsel’s Exhibit 91, was enforced prior to the dis-
charge of Rhodes and prior to the certification of the Union as
the representative of the bargaining unit.
Neimark testified that on March 9, 2009, Lerner sent an
email proposing that the current wage rates would remain the
same for Camelot, employees would receive a 10-cent raise on
their anniversaries, there would be no reopening of the contract,
and a resident referral bonus of $200; that there would not be a
10-cent increase then, even for the CNAs according to this offer
of Lerner; and that this was significantly below the normal raise
given to Camelot employees in that the employees at Camelot
had historically received a 1-, 2-, or 3-percent raise every year
and Lerner’s proposal was well below 1 percent, except for
support workers since 10 cents would have been more if they
only got 1 percent.
General Counsel’s Exhibit 83 is a March 25, 2009 exchange
of emails between Neimark and Lener. As here pertinent,
Neimark advised Lerner that “any and all changes to policies
that are made without prior negotiation with the union will

17 The last paragraph on p. 25,which continues on p. 26 of the em-
ployee handbook reads as follows:
The rules and policies set forth in this handbook are guide-
lines for the employee to follow. Any violation of these rules
may, at the sole discretion of the employer, be the basis for disci-
plinary action up to and including suspension without pay or ter-
mination of employment. The employer can rely on any reason it
deems appropriate to discipline an employee. The employer has
the sole discretion to determine when and under what circum-
stances discipline, including discharge is appropriate.
immediately be considered to be violations of the act and will
trigger new board charges” and “ . . . any disciplinary actions
taken without prior notice and bargaining will be subjects of
charges.” Lerner replied, “[w]e are very well aware of our obli-
gation to not make any universal changes” and “[u]nless you
can show me differently, disciplining employees does not fall
into that notification/bargaining requirement.”
Neimark testified that he canceled the scheduled April 1,
2009 bargaining session because he was ill.
With respect to the April 6, 2009 bargaining session,
Neimark testified that it was held at Camelot; that he and Lopez
were present for the Union; that Lerner and Kipp were present
for management; that the session started about 1:42 p.m.; that
the parties discussed the attendance policy, the termination of
Rhodes, and economics; that Lerner said that the attendance
policy was not a new policy; that he showed Lerner the policy;
that he asked Lerner to bargain over the termination of Rhodes
but Lerner refused to give him Rhodes’ personnel file; that
Lerner said that the file was confidential and he had no duty or
right to give it to the Union; that Lerner did not indicate what in
the file was confidential and he did not offer to give any part of
the file to the Union; that Lerner refused to give the file to him
without Rhodes’ authorization; that Rhodes is a bargaining unit
member and the Union was grieving her discharge; that he was
requesting Rhodes’ personnel file to obtain the information the
Union needed to successfully grieve Rhodes’ discipline; that
Lerner said that he had no duty to bargain over discipline and
he refused to do it in the course of the bargaining session; that
Lerner and Kipp were upset that the Union had not taken the
economic proposal to a vote, they believed that the Union was
obligated to because the union bargaining representatives had
told them that they were going to take it to the members to
discuss it, and Lerner and Kipp basically yelled at the union
bargaining representatives for not doing so; that at some point
Rhodes and Administrator Anderson arrived at this session,
Rhodes authorized Lerner to give the Union her personnel file,
and the file was given to the Union; and that the parties began
to grieve Rhodes’ termination.
On cross-examination, Neimark testified that the following
appears on page 26 of Camelot’s employee handbook (GC Exh.
93): “The employer has sole discretion to determine when and
under what circumstances discipline, including discharge is
appropriate”; that at the April 6, 2009 bargaining session Ler-
ner said that he would not provide Rhodes’ personnel file with-
out her permission; and that Anderson provided Rhodes’ per-
sonnel file once Rhodes arrived at this session and signed a
document provided by management.
With respect to April 6, 2009, Rhodes testified that she at-
tended a meeting in the conference room at Camelot; that
Neimark, Lopez, Lerner, and Anderson were present; that
Neimark asked her if he could have her personnel file and she
said, “yes”; that Lerner pulled up the days she had missed and
Lerner said “that he had the right to do what he wanted to” (Tr.
593 and 594); that Neimark asked if Lerner and Anderson
could step out of the room so he could talk with her; that as
Lerner stood up to leave he told her: “this was the time that Ron
[Neimark] was going to make me all kinds of promises and all
kinds of lies, that when we got to Court, that the Judge would
CAMELOT TERRACE

1985
tell him he has the right to do what he wants to as an Employ-
er” (Tr. 594); that she told Neimark that other employees had
missed at many days if not more than she had; that she received
notice of this policy on March 6. 2009, and she was fired on
March 11, 2009; and that she was eventually reinstated on May
28, 2009.
When called by Lerner, Anderson testified on cross-
examination that she gave Rhodes’ personnel file to Neimark in
April 2009 because he asked for it; that she was not aware that
Neimark had been denied access to that file prior to that; and
that there is no confidentiality rule that bars her from giving a
bargaining unit member’s personnel file to Neimark.
When called by Respondents, Lerner testified that he did not
give Rhodes’ personnel file to Neimark immediately because
he knew that Rhodes was coming to the bargaining session and
he told Neimark that he wanted Rhodes to give her permission,
and then he would ask Anderson to get the information from
the file; and that after Rhodes gave permission for her complete
file to be given to Neimark, it was turned over to Neimark.
When called by Lerner at the postsettlement portion of the
trial herein, Kipp testified that, with respect to the April 6, 2009
bargaining session, she on her way to the meeting she tele-
phoned Babcock and asked her if any meetings were held re-
garding management’s economic proposal; that Babcock told
her no such meetings were held because they were busy; and
that at the meeting she told Neimark that Babcock said that
there were not any meetings and Neimark acknowledged this,
saying that Lopez had contacted a few people.
Regarding the April 29, 2009 bargaining session, Neimark
testified that it was held at Galesburg; that he, Frascone, Bab-
cock, and Kilpatrick were present for the Union; that Lerner
was present for the facility; that the session started at 12:23
p.m.; that the parties discussed economics, namely wages and
the health fund; that Lerner was still insisting on a 5-year con-
tract without a wage reopener; that Lerner said that he was not
willing to pay more than he originally offered because labor
was available at the price they pay, and he did not have a prob-
lem in getting enough people to work; that he asked Lerner to
bring in the administrator so that they could discuss whether
Lerner’s assertions were true, and Lerner refused; that at this
session management gave the Union two discussion only pieces
or, in other words, something in writing with “For Discussion
Purposes Only, Not a Proposal” written at the top; that both
were cross-outs of items that were in the Union’s proposals;
that Lerner was still offering what the Union understood to be a
10-cent raise but since a lot of the information that Lerner had
previously provided to the Union was false in that the actual
wages were higher, it turns out that management’s 10-cent raise
was probably less in some cases; that Lerner left the room at
about 3:30 p.m. to see if he could contact Kipp so he could
consult with her and give some kind of response to the Union;
that he did not know whether Lerner was going to return to the
session so he told Administrator Sangster that the union people
were leaving, they would be around if they were needed to
return and she should tell Lerner to call them because they were
available to return to bargain; that about 20 minutes later he
received a telephone call from Lerner; that he was in Galesburg
on his way to the hospital to visit member Woertz who had
fallen; that Lerner said that he had spoken with Kipp and the
management’s “discussion only” pieces that Lerner gave to the
Union at this session could be considered management pro-
posals; and that he said that he would come back to bargain but
Lerner did not take him up on it.
On cross-examination, Neimark testified that when Lerner
left the April 29, 2009 session at 3:35 p.m. he said that he
might be back if he was able to get Kipp on the telephone; that
the Union had made it clear the it was waiting on a counter
from Lerner; that at 4:05 p.m. Lerner had not come back to the
session so he looked for Lerner and when he did not find Ler-
ner he told Sangster that he was leaving the building and she
should tell Lerner that he would come back to the meeting if
Lerner was coming back to the session; that Lerner “had not
indicated that . . . [he] was coming back” (Tr. 572 and 573) to
the session; and that Lerner at 3:35 p.m. “had indicated that it
was unlikely that . . . [he] would come back” (Ibid.); and that
Lerner “indicated that if . . . [he] could get a hold of . . . Kipp,
. . . [he] would be back” (id.).
When called by Lerner, Sangster testified that on April 29,
2009, she was in her office when Lerner entered it at 4:15 p.m.;
that Lerner telephoned Neimark and told him that he “talked
with Deb Kipp and that they were coming to an agreement
about something and that he would see him later . . . at the next
negotiations” (Tr. 748 and 749); and that Lerner telephoned
Neimark to find out where he was.
When called by Respondents, Lerner testified that on April
29, 2009, he asked Neimark if Respondents had given him all
of the information he requested, and Neimark said that he re-
ceived everything. Lerner testified further that at the April 29,
2009 bargaining session he asked Neimark why he filed charg-
es with the Board, and Neimark told him, “Well, this is the way
I can extend my year and you won’t be able to make an im-
passe. By filing charges, I can get that done” (Tr. 794); that he
left this bargaining session at 3:15 p.m. to contact Kipp, who
was not present at the session; that he returned to the session
about 4 p.m. and the Union’s negotiating team was not there;
that he went to the administrator’s office and telephoned
Neimark using the cell phone number Neimark provided to
him; that Neimark had left the facility to visit Woertz, who was
in the hospital; and that Sangster did not tell him that Neimark
had left word that he was leaving the session.
On rebuttal, Neimark testified that he did not say to Lerner
regarding charges filed with the Board that “[t]his is a way I
can extend my year and there won’t be an impasse” (Tr. 878);
that the only time he mentioned impasse to Lerner was in an
email to Lerner in which he advised Lerner that bad-faith bar-
gaining would preclude impasse; and that he never discussed
reasons why he filed charges with Lerner.
General Counsel’s Exhibit 84 is an April 3–May 3, 2009
email exchange between Neimark and Lerner. First, Neimark
pointed out to Lerner various parts of Lerner’s bargaining that
the Union considered to be surface and dilatory bargaining,
including (a) Lerner’s insistence on a 5-year contract with wage
increases that don’t even keep up with the increases in the min-
imum wage; (b) Lerner’s refusal to reopen the wages; and (c)
Lerner’s clear attempt to rush to impasse. Neimark also ex-
plained to Lerner why the Union requested certain information,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1986
and cited Lerner’s “continued inability to bargain for the
amount of hours he has agreed to bargain for.” (Tr. 501.) Ler-
ner responded asserting, among other things, that the Union’s
demanding wage increases that it knows will not be accepted
by the Employer shows that the Union is not interested in
reaching an agreement, and, therefore, is bargaining in bad
faith. Lerner also indicated as follows:

Our wage proposal is very clear to you, based on your eluci-
dation of it; we never said we couldn’t afford large raises; we
simply stated that we are paying the amount that we can re-
cruit employees at. There’s no need for us to justify that, es-
pecially with the phantom paperwork you’re now requesting
. . . . Since each employee certification is located in their own
file, and not in one location, it would be extremely time con-
suming to get them all for you. If there’s anybody in particular
that you’d like to see their certification, please let me know,
and we’ll provide it. . . .
. . . .

Neimark replied, as here pertinent, as follows:

. . . .
When you asked if all information we requested was
provided, I indicated to you that all information we re-
quested that you had not specifically refused to give us
was given to us. However, you have refused to provide a
huge amount of information that we need to evaluate and
bargain in good faith. As such, you continue to bargain in
bad faith.
. . . .
To classify our wage increase proposals as “wage in-
creases that you know will not be accepted by the Em-
ployer” and indicate that it shows that I am bargaining in
bad faith is absurd, because the proposals we have put
forth are all, even the initial proposals, well below the
market wages of similarly situated employees everywhere
in the state.

Neimark testified that he was never provided copies of each
employee’s certification from their file.
With respect to the May 5, 2009 bargaining session, Neimark
testified that it was held at Camelot; that he was present for the
Union; that Lerner and Kipp were present for management; that
the session started at 12:40 p.m.; that the parties discussed
wages and the economic proposal; that Lerner continued to
insist on a 5-year contract; that the Union proposed three op-
tions, namely (1) a 3-year contract with reopeners in years 2
and 3; (2) a 4-year contract with 4-percent increases in years in
years 2, 3, and 4; and (3) a 5-year contract with 4-percent in-
creases each year, with minimum rates for CNAs that escalated
throughout those years; that Lerner rejected the Union’s pro-
posals; that at 3 p.m. the Union brought up a 5-year contract
with 3-percent increases each year, with minimum rates that
escalated each year of the contract; that Lerner handed this
back to Neimark crossed out; that the Union made two more
proposals (“discussion pieces”) but the parties were not able to
reach agreement on that date on wages; and that Lerner did not
make any movement on wages.
General Counsel’s Exhibit 85 is a May 5–7, 2009 email ex-
change between Neimark and Lerner. First, Neimark submitted
a complete economic proposal, which was attached to the
email, to Lerner, indicating that the proposal would expire on
Friday. As here pertinent, Lerner replied, asking Neimark to
call him to discuss the proposal.
General Counsel’s Exhibit 86 is a May 7–10, 2009 email ex-
change between Neimark and Lerner with respect to a revised
economic proposal of Neimark, which was attached to his
email.
Regarding the May 12, 2009 bargaining session, Neimark
testified that was held at Galesburg; that he and Kilpatrick were
present for the Union; that Lerner was present for management;
that the parties discussed wages, health insurance, and the Un-
ion dropping Board charges and court proceedings; that later
the Union did deliver a proposal which included dropping all of
the proceedings but Lerner rejected the proposal; that Lerner
said, “I don’t see coming to an agreement if we are going to be
in Court together” (Tr. 506); that the parties discussed an insur-
ance reopener around a formula for some bonuses that the Un-
ion was proposing; that Lerner indicated that he was willing to
give a 3-cent bonus for a census over 95; that it was his under-
standing that historically the census never reached 95; and that
General Counsel’s Exhibit 87 is a copy of the Union’s econom-
ic proposal which was delivered to Lerner at the May 12, 2009
bargaining session.
With respect to the May 20, 2009 bargaining session,
Neimark testified that it was held at Camelot; that it started at
12:10 p.m.; that he, Lopez, Kathy Jackson, and Sandra Thomas
were present for the Union; that Lerner was present for man-
agement; that the parties discussed wages and the attendance
policy; that the Union requested to bargain over the attendance
policy, if implemented, and Lerner said, “[T]hey are not going
to bargain over the attendance policy” (Tr. 509); that Lerner
indicated that the could resume discussion on the attendance
policy when the administrator returned; that Lerner continued
to press for the Union to agree to withdraw the court cases and
the Board charges in order for him to agree to the “conces-
sions” that he was willing to give; that the Union requested the
attendance records of all employees so that the Union could
determine whether other people had been absent or tardy as
often as the ones who were written up; that the Union did not
obtain such records at this session but several weeks after this
session management did provide the Union with a list of em-
ployees indicating how many absences they had between a
certain month and another month; that management showed the
Union some documents which were signed by two or three
employees upon their hire, which documents had written ver-
sions of the new attendance policy on them; that of those em-
ployees, only Rhodes was still an employee of one of the Re-
spondents and she had been terminated; that the Union asked
for copies of this document for all employees and Administra-
tor Anderson indicated that only some of the employees signed
such a document, and she did not know why it was only given
to some employees; that the parties discussed wages in that
Thomas, who was an employee at Camelot, had been told by
management that the policy for 2009 on wages was going to be
a half-percent, 1 percent, or 2 percent, depending upon their
CAMELOT TERRACE

1987
evaluation, which was a change from the prior practice; that
Respondent did not deny that it was a deviation from prior
practice but management did not agree to change it either back
to the status quo; that Lerner claimed that he did not know what
the increase is; that the parties discussed the fact that the at-
tendance policy was inconsistent with the paid time-off policy
in that theoretically an employee could be terminated before
they used up their paid time off; that the parties discussed eval-
uations and merit raises; that Lerner wanted to tie employee’s
raises to whether the employee engaged in community service
work on their own time outside of the facility; that this would
be a violation of the Fair Labor Standards Act; and that regard-
ing merit raises, Lerner said that “it was perfectly fine for the
Administrator or for the supervisor to base employee merit
raises on how an Administrator feels about a person, and to use
the subjective criteria” (Tr. 514).
General Counsel’s Exhibits 88, 89, and 90 are emails
Neimark sent to Lerner on May 23, 2009. The first indicates as
follows: “At the 2/25/09 bargaining session, the union request-
ed all Galesburg Terrace attendance records. You refused to
provide them at that time and, to date, we have not received
them. We continue to request them for 2008 and 2009.” The
second indicates as follows:

On 2/9/09, at the bargaining session, the union requested in
writing that you “provide monthly census reports for both fa-
cilities, including total census and payor source for the past 24
months. Please also provide daily staffing reports for both fa-
cilities for the past six months.” This has not been provided.
Furthermore, we are requesting that the daily staffing reports
for both facilities also go back the past 24 months.

And the third indicates as follows: “The union is requesting an
updated list of all bargaining unit employees at both Camelot
Terrace and Galesburg Terrace with name, address, phone
number, date of hire, CORRECT rate of pay, [and] job title.”
With respect to the May 27, 2009 bargaining session,
Neimark testified that it was held at Galesburg; that he, Bab-
cock, and Kilpatrick were present for the Union; that Lerner
and Kipp were present for management; that the session began
at 12:30 p.m.; that Lerner indicated that he wanted to bargain
over the Camelot attendance policy; that the parties also dis-
cussed the withdrawal of the lawsuits and wages; that the Un-
ion made a wage “discussion” and the Union asked Respond-
ents to provide the Union with a written wage proposal; that he
told Lerner that the Union was not going to put any additional
proposals in writing until the Union received a written proposal
from Lerner; that Lerner said that the Union had no right to do
that and the Union was stalling by not giving him a written
proposal without him first giving the Union a written proposal;
that the session ended at 5:05 p.m.; and that Lerner said,
“[A]nything that he had discussed or agreed to would be moot
if we [the Union] did not agree to withdraw the lawsuit.” (Tr.
517.)
On May 28, 2009, Rhodes was reinstated at Camelot.
Rhodes testified that Anderson telephoned her on May 28,
2009, on her home phone and told her that she was calling her
to reinstate her job and did she want it; that she told Anderson
she wanted her job; that she had just come home from surgery;
that General Counsel’s Exhibit 95 is a copy of the letter that she
received from Anderson; and that the letter, which is dated May
28, 2009, reads as follows: “As per our conversation I am offer-
ing you your C.N.A. position back. Please advise me as to
when you are able to return to work.”
The Board issued a Supplemental Decision and Order in
Camelot Terrace, Inc., 354 NLRB 226 (2009), adopting Judge
Cullen’s decision and recommended Order in which he con-
cluded that Camelot violated Section 8(a)(3) and (1) of the Act
by discharging Lopez because she engaged in protected con-
certed activities, and the Board ordered that Camelot rescind
the discharge, reinstate Lopez to her former job, and make her
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her.
On May 29, 2009, as noted above, a complaint was issued
which collectively alleges that from December 2008 through
May 2009 Camelot and Galesburg engaged in numerous, seri-
ous violations of the Act, which alleged violations are de-
scribed above.
When called by Respondents, Lerner sponsored Respond-
ents’ Exhibit 12, which is a tentative agreement between the
Union and Galesburg signed by Neimark and Lerner on June
25, 2009. Lerner testified that the tentative agreement was sup-
posed to be presented to the employees for their ratification at
the end of June 2009; and that the tentative agreement has not
been ratified.
On rebuttal, Neimark testified that the tentative agreement
for Galesburg did not apply to Camelot; that the noneconomic
language in the Galesburg tentative agreement was similar to
the language being negotiated for Camelot but the economics
were different; and that he took the Galesburg tentative agree-
ment to the membership for a vote because he believed that
Lerner had been so evasive in his bargaining that the Union was
not going to be able to take it further, and he was just trying to
get it approved so that there would be a contract and the Union
could live to fight another day. On cross-examination, Neimark
testified that he posted a summary of the settlement and the
notice of the ratification meeting 3 days before the ratification
meeting because

up until that time, . . . [Lerner] was trying to back out of the
agreement. I had several discussions with . . . [Lerner] while .
. . [he] was in Florida about why . . . [Lerner] . . . [was] back-
ing out, including that . . . [Lerner] wanted us to drop both the
Galesburg and the Camelot litigation. So I didn’t post it until I
was sure that we really had a settlement.

Neimark testified further that the Galesburg tentative agreement
was dated June 25, 2009; that he posted the notice of the ratifi-
cation meeting on June 25, 2009; that the ratification meeting
was held on Saturday June 27, 2009; that the ratification meet-
ing had to be held that Saturday before July 1, 2009, because
there was a minimum wage increase on July 1, 2009; and that
Lerner kept stalling on the actual tentative agreement until June
25, 2009, so that is what the Union had to deal with.
When called by Lerner, Kipp testified that, with respect to
the July 2009 ratification vote, Neimark told her that the pro-
posal was voted down 3 to 2; and that she asked Neimark why
only five people showed up at two meetings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1988
Neimark testified that the parties did not bargain for more
than 20 hours in December 2008, and in each of the months of
January–May, 2009; that the certification year for Galesburg
ended in May 2008; that the certification year for Camelot ex-
pired in October 2008; that the Union has never reached a first
contract at either facility; that the Union never received the
CNA screening information for Galesburg; that Lerner at some
point indicated that this information was contained in various
employee files but he did not have a list, and it was difficult to
gather the information; that Lerner did not offer to have the
Union come in and inspect the records; that the Union never
received the attendance information for Galesburg or the census
information for Camelot; that initially Lerner refused to turn
over Rhodes personnel file; that the Union was not given ad-
vance notice or the opportunity to bargain, before it became a
fait accompli, over (a) the reduction in hours of the housekeep-
ing staff at Galesburg; (b) the employers’ change in health in-
surance carriers at both facilities; (c) incentive raises at Came-
lot for CNAs; (d) the attendance policy announced on March 6,
2009; (e) stricter enforcement of the attendance policy at Came-
lot; and (f) the 6 months probationary period for Woertz and
other employees at Galesburg; that between the shortened ses-
sions and Lerner’s inability or refusal to answer clarifying
questions, the Union has just not been able to reach an agree-
ment that would be acceptable to its members; that Respond-
ents not providing requested information has made it very diffi-
cult for the Union to modify and adjust its proposals to be mu-
tually agreeable to the employer; that the unilateral changes at
Galesburg and Camelot are a de-motivating factor for employ-
ees in that there is a sense that there is nothing that they can do,
that the Union has no power, that the Union has no ability to do
what it is supposed to do as a union, and it has made it very
difficult for the parties to reach an agreement that is acceptable
to the Union’s members; that the Respondents’ wage proposals
have made it impossible to reach an agreement since the Re-
spondents’ proposals have been incredibly low, and in some
cases, constituted a decrease in the status quo; that Respond-
ents’ refusal to schedule bargaining sessions more than one
week in advance had made it very difficult on the Union since
the Union has other work which it needs to do and the Union
fills up its schedule much quicker than 1 week in advance; that
Respondents’ refusal to put things in writing means that the
Union has been bargaining with quicksand in that the Union
essentially has not been able to get a real sense as to where the
employer is on things, aside from the 10 cents only, because the
employer refuses to commit to anything in writing; and that
Lerner’s overall behavior both at and away from the bargaining
table has been to hamper the Union’s ability to reach an agree-
ment.
On cross-examination, Neimark testified that during negotia-
tions Lerner said that he was not going to say that he could not
afford additional wages because he knew what that meant; that,
with respect to Lerner taking the position that he could not
schedule bargaining sessions more than 1 week in advance,
Neimark did not understand this because he bargains with a lot
of nursing home owners and they are able to schedule bargain-
ing sessions more than 1 week in advance; that Lerner is the
only nursing home owner he bargains with who takes the posi-
tion that he is not able to schedule bargaining sessions more
than 1 week in advance; that the census information was even-
tually provided for Galesburg but not for Camelot; that no other
nursing home owner has ever refused to provide census infor-
mation; that the Union was proposing that Respondents partici-
pate in the Taft Hartley health insurance plan which the Union
provides to its members in Chicago; and that Respondents’
Exhibit 12 is a tentative agreement for a full agreement that the
parties reached in June 2009 for Galesburg.18
On redirect, Neimark testified that Lerner said, “I am not go-
ing to say I can’t afford it, because I know the implications of
saying that.” (Tr. 581.)
When called by Lerner, Sangster testified that Respondents’
Exhibit 23 is the Galesburg CNA background checks Neimark
requested which she mailed to him on August 21, 2009. On
cross-examination, Sangster testified that she was not aware
that Neimark first requested information on CNA screening in
January 2009; that Galesburg maintains a copy of each CNA’s
screening inside their personnel file; and that she was not aware
that Neimark lives at 607 Ridgewood Court and not 606
Ridgewood Court so she was not aware that she sent Respond-
ents’ Exhibit 23 to the wrong address.
When called by Respondents, Lerner testified that it took so
long to provide the CNA background check information be-
cause he did not believe that Neimark had a need for this in-
formation, which was easily available on the internet; and that
he ultimately gave the information to Neimark because counsel
for the General Counsel advised Respondents that this was a
legitimate request.
On cross-examination, Lerner testified that he would rather
be productive running his facilities rather than bargaining with
the Union; and that on “[e]very single one” (Tr. 830), Neimark
always agreed to cancel sessions or end them early.
On rebuttal, Neimark testified that he did not always agree to
end sessions early by mutual agreement; that “usually we ended
sessions because the employer would not be responding to
questions, not be considering things, so we would have nothing
left to discuss. We would’ve exhausted our options to bargain
because the employer wasn’t bargaining” (Tr. 873); that often
he objected to Lerner’s use of “by mutual agreement” because
Lerner was not bargaining in good faith in that he was not re-
sponding to questions or not presenting proposals; that Lerner
did not tell him to always ask the administrators at Camelot and
Galesburg for information; that Lerner refused to meet more
than once a week and he refused to schedule bargaining ses-
sions more than 1 week in advance; and that the Union was
given incorrect rates of pay by management on more than one
occasion.
Analysis
For the reasons specified below, the General Counsel has
shown that the above-described settlement agreements should
be set aside.
Before getting into the merits of the allegations in the in-
volved complaints, credibility issues must be resolved. Counsel

18 R. Exh. 13 was introduced to show the Union’s wage proposal as
of “4/16/08” vis-à-vis the tentative agreement wage in R. Exh. 12.
CAMELOT TERRACE

1989
for the General Counsel on brief contends that Respondents’
witnesses presented testimony replete with material inconsist-
encies and inherently incredible statements; that Respondents’
witnesses were impeached on numerous occasions; that while
Prang testified that the attendance policy shown in General
Counsel’s Exhibit 91 was contained in Camelot’s employee
handbook, this is where she pulled it from, and it is exactly as it
appears in the employee handbook, this is not the case; that
while Prang testified that she was not sure how her predecessor,
DON Price, enforced the attendance policy, in her pretrial affi-
davit Prang testified that Price was lax in enforcing the attend-
ance policy and she, Prang, was enforcing the policy as written;
that while Assistant Administrator Sangster testified at the trial
herein that the Union was notified before the reduction of
housekeeping hours was implemented, in her pretrial affidavit
she testified that she did not know if the Union was notified of
the reduction of employee hours in advance by the employer;
that while Kipp testified at the trial herein that the reduction of
housekeeping hours—vis-à-vis a layoff—was a union mem-
ber’s idea, in her pretrial affidavit Kipp testified, “Instead of
terminating anyone, everyone got to keep their jobs and we cut
their hours. I do not know if the Union was provided notice or
an opportunity to bargain over the change in advance” (Tr. 66);
that Kipp was impeached numerous times with her sworn, pre-
trial affidavits and other documents; that Kipp’s testimony at
both trials seemed extremely implausible and her testimony
should not be credited; that while Administrator Anderson testi-
fied at the trial herein that when she was DON she would give
incentive raises to new employees if she was desperate and
needed a worker, in her pretrial affidavit Anderson testified that
the only incentive pay that she was aware of was the short pay
given to CNAs who showed up for their shift when less than
the number scheduled showed up for that shift; that while Ad-
ministrator Anderson testified at the trial herein that she rehired
Rhodes upon the advice of the Board agent, Anderson later
admitted that she rehired Rhodes upon the advice of Lerner;
that General Counsel’s Exhibit 15 directly contradicts the tes-
timony of Lerner regarding the cancellation of the April 16,
2008 session in that Lerner sent the email about the car to
Neimark at 1:34 p.m. before he allegedly even learned that the
car was not running; that Kipp’s testimony at the trial herein
about the harmonious relations with UAW during her negotia-
tions with that Union regarding Forrest Hill was contradicted
by the facts, namely that the UAW filed a charge alleging bad-
faith bargaining and a complaint was issued alleging bad-faith
bargaining by refusing to meet and bargain more than once
every 2 weeks for 2 hours, canceling sessions, and refusing to
be bound by tentative agreements; that while Kipp testified at
the trial herein that negotiations with UAW took 2.5 months,
the period of bad-faith bargaining alleged by the UAW in its
charge was, in part, 6 months19; that Lerner’s statements re-
garding the Forrest Hill charge are strikingly similar to his alle-
gations in the instant case; that the evidence presented regard-

19 The UAW was certified on June 28, 2004, to represent employees
at Forrest Hill . The March 30, 2005 complaint in that proceeding al-
leged that at various times from August 2004 “to date” Forrest Hill
engaged in bad-faith bargaining.
ing the Forrest Hill case, which Lerner himself placed in issue,
demonstrates Lerner’s true modus operandi regarding bargain-
ing with the representative of his employees, namely Lerner (a)
accuses the union of making frivolous charges; (b) falsely ac-
cuses the union of occasioning the delays in bargaining; (c)
claims that matters outside of his control caused cancellation of
bargaining sessions; and (d) relies upon his busy schedule as an
excuse to avoid bargaining; that Lerner’s demeanor was eva-
sive, argumentative, and nonresponsive; that the testimony of
all of Respondents’ witnesses seemed deliberately structured to
fit Respondents’ theory of the case; that all of Respondents’
witnesses demonstrated a lack of veracity and avoided giving
direct answers; that a substantial conflict has been shown be-
tween the pretrial sworn testimony of Respondents’ witnesses
and their testimony at trial; and that the testimony of Respond-
ents’ witnesses should not be credited.
Lerner eliciting the testimony he did from Kipp regarding the
UAW negotiations was not only unwise but, in my opinion, it
bordered on—if it did not cross the line—suborning perjury
since Lerner was there and he knew exactly what did in fact
happen.20 Respondents’ approach to that matter demonstrates,
inter alia, Lerner’s and Kipp’s refusal to admit the obvious even
when it is presented to them. Undoubtedly, in the business uni-
verse these two individuals control, their exercise of power for
the most part goes unchallenged. For the reasons set forth by
counsel for the General Counsel and in view of the contradic-
tions, inconsistencies, and outright lies under oath set forth
herein, I agree with counsel for the General Counsel that the
testimony of all of Respondents’ witnesses was deliberately
structured to convey Lerner’s point of view, even though that
point of view is contradicted by the facts. I do not credit any of
the challenged testimony or challenged documents of Respond-
ents’ witnesses which are not supported by a reliable corrobo-
rating witness or a reliable corroborating document.
The October 29, 2008 Complaint
Paragraph 6 of the above-described October 29, 2008 com-
plaint collectively alleges that at various times from January
through September 2008 Respondents Camelot and Galesburg
and the Union met for the purpose of collective bargaining with
respect to wages, hours, and other terms and conditions of em-
ployment and Respondents failed and refused to bargain in
good faith with the Union as the exclusive collective-
bargaining representative of the Camelot and Galesburg units
by (i) restricting the dates for bargaining sessions; (ii) restrict-
ing the lengths of bargaining sessions; (iii) repeatedly canceling
and shortening scheduled bargaining sessions beyond their
unreasonably stated intention not to bargain for more than 4
hours per session; (iv) reneging on or withdrawing from tenta-
tive agreements without good cause; (v) refusing to bargain
over economic subjects; and (vi) refusing to make economic
proposals.
Counsel for the General Counsel on brief contends that Re-
spondents’ restricting the dates of and the length of the ses-
sions, and canceling and shortening sessions demonstrates Re-

20 Interestingly, more than once during her testimony on this subject
Kipp was told to keep her voice up and to speak up.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1990
spondents bad faith; that “[c]onsiderations of personal conven-
ience, including geographical or professional conflicts, do not
take precedence over the statutory demand that the bargaining
process take place with expedition and regularity,” Caribe Sta-
ple Co., 313 NLRB 877, 893 (1994); that before the com-
mencement of bargaining Lerner stated his intention to restrict
the length of the sessions to three hours; that Respondents im-
position of a very short time limit for bargaining sessions dur-
ing the first 8 months of bargaining constituted a violation of
the Act; that Respondents further refused to schedule bargain-
ing sessions more than 1 week in advance, despite the Union’s
pleas that they do so; that the obligation to meet at reasonable
times is not diluted by the demands of a respondent’s business,
Barclay Caterers, 308 NLRB 1025, 1035–1036 (1992); that
here, Respondents outrageously demanded to limit bargaining
to 3 hours per session in bargaining for a first contract for two
nursing homes; that an employer violates Section 8(a)(5) of the
Act by withdrawing from a tentative agreement without good
cause; that here, Respondents have not offered any cause, much
less a good cause for withdrawing from tentative agreements;
that Respondents’ refusal to bargain over economic subjects
and refusal to make economic proposals between January and
September 2008 are also evidence of their overall pattern of
bargaining in bad faith; that on May 7, 2008, Lerner refused to
accept the Union’s first economic proposal; that on June 2,
2008, Lerner asserted that the parties were not yet discussing
economics; that Respondents did not make their first economic
proposal until August 28, 2008, after over 7 months of bargain-
ing, and only after the Union insisted many times on bargaining
over economic issues; that insistence on postponement of a
mandatory subject of bargaining (economic issues) until lan-
guage on other issues has been agreed upon is also indicative of
a desire not to reach an agreement, International Powder Met-
allurgy Co., 134 NLRB 1605 (1961); that Respondents’ admis-
sion that they refused to negotiate on economic issues for
months weighs strongly in favor of a finding of overall bad-
faith bargaining; that here, Respondents offered no explanation
for their clearly regressive wage proposal; that Respondents
further demonstrated their bad faith in proposing that the Union
(a) agree to never organize LPNs; (b) limit union leafleting
activities to 1 mile from the facility; and (c) be removed from
involvement in adjusting employee grievances, and in propos-
ing a particularly strong management-rights clause; and that the
advancement of predictably unacceptable proposals and the
failure to provide reasonable justification for proposals which
are questioned, are indicia of bad-faith bargaining, Bryant &
Stratton Business Institute, 327 NLRB 1135 (1999).
The Charging Party on brief argues that Lerner’s repeated
failure to meet with the Union regularly, his restriction of bar-
gaining session length to 4 hours, his further shortening of ses-
sions when the parties did meet, and numerous canceled ses-
sions evidences management’s dilatory tactics; that it is unlaw-
ful when an employer conditions future bargaining on ac-
ceptance of a 4-hour daily maximum time limit, Caribe Staple
Co., supra; that Lerner canceled the January 24, 2008 session
allegedly because of elective surgery; that Lerner canceled the
February 5, 2008 session allegedly because his son got en-
gaged; that considerations of personal convenience do not take
precedence over the statutory demand that the bargaining pro-
cess take place with expedition and regularity, Id. at 893; that
Lerner cancelled the April 16, 2008 session due to alleged car
trouble; that the Union proposed nine suggested dates for bar-
gaining and Lerner responded that he was available on a date
for which the Union had already indicated it was unavailable;
that the Union made several attempts to reschedule additional
and extended sessions before April 30, 2008, and each attempt
was rejected by the Lerner because he had a business to run;
that Lerner was adamant that management would meet with the
Union only every other week; that Lerner insisted that he could
not schedule anything beyond the next bargaining session be-
cause of his busy schedule; that the Board has held that such
excuses cannot justify failure to bargain in good faith, Calex
Corp., 322 NLRB 977, 978 (1997); that this type of arbitrary
limitation on both the length as well as the number of sessions
is further evidence of bad faith; that an employer’s unreasona-
ble refusal to accede to Union’s requests for more frequent
meetings is evidence of bad-faith bargaining; that in late Au-
gust 2008 Lerner indicated that he was available to bargain on
two occasions which the Union had already indicated it was not
available; that Lerner reneged on or withdrew from tentative
agreements without good cause throughout bargaining; that an
employer’s withdrawal and continued renegotiation of already
agreed upon provisions of the contract is bad faith and surface
bargaining and Lerner’s conduct insures that there will be no
satisfactory resolution of these bargaining contracts, Bryant &
Stratton Business Institute, supra; that between January and
September 2008 the parties have met a total of only 21 times,
the meetings lasted for a total of less than 60 hours, no tentative
agreements were reached on any economic issue, and there
were only a total of five tentative/possible agreements reached
with Respondents; that even though the parties reached a tenta-
tive or possible (in effect, nonbinding according to Lerner)
agreement on certain noneconomic issues, the Act is violated
where restrictions in bargaining session length contribute to a
finding of bad-faith bargaining, Nursing Center at Vineland,
318 NLRB 901, 905 (1995); that for much of the 10 months of
bargaining Lerner refused to bargain over economic subjects;
that Lerner does not even claim that there was any agreement to
conclude negotiations on noneconomic items before discussing
economic subjects (actually both Kipp and Lerner made this
assertion but neither one is credible); that when the Union and
management first engaged in economic bargaining, Lerner
refused to make economic proposals; that eventually Lerner
indicated that he would not consider changing his 10-cent wage
increase offer for CNAs only unless the Union agreed to the
current pay rate the employees were already receiving; and that
Lerner’s refusal to engage in negotiations for much of the bar-
gaining history and refusing to make any economic proposal
until August 28, 2008, further establishes bad faith.
The Respondents on brief contend that they initially negoti-
ated every week for the first 4 or 5 months; that Respondents
then met every second week because business was suffering;
that after speaking with a Board agent, Respondents went back
to weekly meetings; that the only exceptions to this schedule
were clearly legitimate, true emergencies which were not for
personal convenience, namely surgery complications, an unex-
CAMELOT TERRACE

1991
pected required religious ceremony for a son’s engagement, and
an unexpected car breakdown; and that any session that was
shortened was based on mutual consent.
Lerner made it more than obvious that he has nothing but
contempt for the process, and that he would do whatever he
could, even violate the law, to undermine the ability of the Un-
ion to properly represent employees in the two involved units.
It appears that Lerner wanted to minimize any change to his
normal routine, i.e., when he normally went to Camelot and
Galesburg, and the fact that he wanted to carry out his normal
work while he was at these facilities—to the extent that he
could. As both Lerner and Kipp indicated, they viewed the
bargaining sessions as an incursion on their normal business
schedules. With this in mind, Lerner restricted the dates on
which bargain sessions would be held. This resulted in a total
of only 21 bargaining sessions being held collectively for Cam-
elot and Galesburg between January and September 2008.
Notwithstanding the Union’s demands for more sessions, be-
tween January and September 2008 Lerner restricted the bar-
gaining sessions for separate first contracts for two facilities to
a total of 9 for Galesburg and 12 for Camelot. Moreover, Ler-
ner, as treated below, limited these sessions to an average of
about 3 hours. To frustrate the Union, on at least three occa-
sions, Lerner chose dates and times for bargaining sessions
after the Union had already indicated that it was not available
on those dates and times. Also, Lerner during a period would
only agree to schedule bargaining sessions every second week,
and he limited advance scheduling to just the next session. As
alleged in paragraphs 6(i), and 7 of the October 29, 2008 com-
plaint, Respondents violated the Act by unlawfully restricting
the dates of the bargaining sessions. Caribe Staple Co., supra at
893.
With respect to restricting the length of the bargaining ses-
sions, notwithstanding the Union’s objection and notwithstand-
ing the Union’s numerous requests for bargaining sessions to
last more than 3 or 4 hours, Lerner restricted the length of the
sessions to 3 or 4 hours. Additionally, Lerner, as described
above, shortened some of the bargaining sessions so that the
average time spent at a bargaining session was about 3 hours.
As noted above, after, in effect, calling Kwiek a liar at the July
22, 2008 session, causing a reaction from Kwiek (neither Ler-
ner nor Kipp are credible. Consequently the testimony of
Kwiek, who I find to be a credible witness, is credited), Lerner
shortened this session by walking out with Kipp after 30 to 45
minutes of a session which was scheduled for 4 hours. Lerner’s
claim that any session that was shortened was based on mutual
consent is another one of his lies. As alleged in paragraphs
6(ii), and 7 of the October 29, 2008 complaint, Respondents
violated the Act by unlawfully restricting the length of the bar-
gaining sessions. Barclay Caterers, 308 NLRB at 1035–1036.
As noted above, Lerner claims on brief that three of his can-
cellations were legitimate, true emergencies which were not for
personal convenience, namely surgery complications, an unex-
pected required religious ceremony for a son’s engagement, and
an unexpected car breakdown. Regarding the surgery assertion,
Lerner’s testimony and the documentation are contradictory at
best. Lerner’s January 21, 2008 “1:12 PM” email (GC Exh. 11),
to Kwiek indicates, “I have to have surgery this week. . . .” But
Respondents’ Exhibit 7, if one is to believe Lerner’s assertions
with respect to what it represents, indicates that Lerner had an
office visit at “11:45 am” on January 21, 2008, during which
visit outpatient surgery was performed. If that was the case, a
reasonable person would not expect Lerner to be asserting later
that same day that “I have to have (future) surgery this week.”
Respondent’s Exhibit 7 was received because Lerner testified
that this is what he retrieved from a website. However, Lerner
is not a credible witness. Respondents’ Exhibit 7 does not, on
its own, unequivocally prove that Lerner had surgery which
justified his canceling the January 24, 2008 bargaining session.
This document was not turned over by Lerner to counsel for the
General Counsel pursuant to her subpoena. All things consid-
ered, I am not giving Respondents’ Exhibit 7 any weight what-
soever with respect to Lerner’s claim that he had a legitimate
reason that was not a matter of personal convenience for can-
celing the January 24, 2008 session. Since Lerner has no credi-
bility, there is no proof of record supporting Lerner’s claim that
he had any justification, let alone a matter of personal conven-
ience, for canceling the January 24, 2008 bargaining session.
With respect to Lerner’s claim that he had to cancel the Feb-
ruary 5, 2008 session because of an unexpected required reli-
gious ceremony for a son’s engagement, there is only Lerner’s
testimony and his email to Kwiek (GC Exh. 21), supporting this
assertion. Lerner’s email to Kwiek leaves the impression that
he had to go from Chicago to New York. If he flew, Lerner did
not sponsor an exhibit(s) showing that he has an airline tick-
et(s). If he drove, Lerner did not sponsor exhibits showing that
he purchased gasoline between Chicago and New York. If he
stayed in a hotel in New York, Lerner did not sponsor an exhib-
it showing that he was in New York during a specified period.
One is left with only Lerner’s word. And Lerner himself has
demonstrated what that is worth. Lerner is not a credible wit-
ness and I do not credit his assertion that he had any justifica-
tion, let alone one that was not a matter of personal conven-
ience, for canceling the February 5, 2008 session.
Lerner’s claim that there was a legitimate, true emergency
which was not for personal convenience, namely an unexpected
car breakdown, which justified canceling the April 16, 2008
session is not credited. Contrary to Lerner’s incredible testimo-
ny on cross-examination that his “1:34 PM” April 15, 2008
email does not contradict his testimony, it does just that. Lerner
testified that his wife told him about the problem on April 15,
2008, at 2 p.m. and he could not start the car at 3 p.m. that day.
Here, counsel for the General Counsel caught Lerner in an ob-
vious lie and, even though he was testifying under oath, he
would not admit the obvious. Not only does Lerner’s “1:34
PM” email contradict his testimony, but his April 15, 2008
“5:08 PM” email is contradictory in that in it he indicates “. . .
the mechanic hasn’t been able to diagnose why my car didn’t
start yesterday . . . .” Obviously, “yesterday” would have been
April 14, 2008, a day before he was even allegedly aware that
there was a problem with the car. All of this coupled with Ler-
ner’s testimony that his wife “must” have picked him up at the
gas station on the night of April 15, 2008, and he did not recall
when he picked the car up at the gas station, leaves one no
choice but to question the validity of Lerner’s assertions regard-
ing the alleged car problem. In view of the contradictory nature
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1992
of the documentation and in view of the fact that Lerner is not a
credible witness, I do not credit his assertions that a car prob-
lem justified his cancellation of the April 16, 2008 bargaining
session. As alleged in paragraphs 6(iii) and 7 of the October 29,
2008 complaint Respondents violated the Act by canceling or
shortening bargaining sessions. Calex Corp., 322 NLRB 977,
978 (1997).
With respect to reneging or withdrawing from tentative
agreements without good cause, once again counsel for the
General Counsel caught Lerner lying under oath. In his May 5,
2008 email to Neimark (GC Exh. 66), Lerner indicated, “We
need an agreed upon definition of a TA before we agree to
them in the future.” Lerner could not admit the obvious, even
though he was under oath, when asked on cross-examination
why if the parties—as he had testified—already agreed at the
first session that tentative agreements could be opened at any
time, he was, on May 5, 2008, arguing in his email that the
parties had to agree to allow tentative agreements to be opened
at any time. Lerner and Kipp lied under oath when they assert-
ed that there was an agreement at the first (Kipp and Lerner) or
second session (Kipp) that tentative agreements could be
opened at any time. Lerner and Kipp are not credible witnesses.
I find Lopez to be a credible witness and I credit her testimony
that she attended the first two bargaining sessions, and no one
at these sessions discussed the meaning of a tentative agree-
ment. Hoisted on his own petard, Lerner does not even attempt
to argue that there was good cause to renege or withdraw from
tentative agreements. The numerous occasions when Lerner
reneged or withdrew from tentative agreements are set forth
above. No purpose would be served by reiterating them here.
Suffice it to indicate that Lerner did not deny that he reneged or
withdrew from tentative agreements on numerous occasions,
and he made no attempt to assert that he had good cause in any
instance. This was a delaying tactic on the part of Lerner. By
using up bargaining time by constantly revisiting issues which
had already been resolved, without good cause, Lerner was
prolonging the resolution of the noneconomic issues and, there-
by—to his way of thinking—avoiding, as long as possible, the
economic issues. As alleged in paragraphs 6(iv) and 7 of the
October 29, 2008 complaint, Respondents violated the Act by
reneging or withdrawing from tentative agreements without
good cause.
Regarding Lerner’s refusal to bargain over economic issues,
Kipp testified, as noted above, that the parties had a verbal
agreement about not starting negotiations over economic issues
until the noneconomic issues were finished. However, on cross
examination Kipp testified that in her affidavit she indicated
that she did not recall ground rules being set, and while her
affidavit indicates that Lerner asked that the parties get all of
the noneconomic issues settled before moving on to economic
issues, she did not indicate in her affidavit that the Union
agreed to take this approach. Lerner testified that at the first
bargaining session the parties agreed to negotiate noneconomic
issues first and then discuss the economic issues. Neither Ler-
ner nor Kipp are credible witnesses. When Neimark attempted
to give Lerner a copy of the Union’s economic proposal on
May 7, 2008, Lerner refused to accept it, indicating that they
were still talking about noneconomics and he would not discuss
economics until they were done with the noneconomics. On
May 7, 2008, when the Union tendered its economic proposal
to him, Lerner did not cite any agreement between the parties
that precluded consideration of economic issues before con-
cluding bargaining on the noneconomic subjects. Rather, Ler-
ner indicated that he would not discuss economics until they
were done with noneconomics. Also, in his September 11, 2008
email (GC Exh. 50), Lerner indicates, inter alia, “We clearly
told you previously that we hadn’t presented all our non-
economic proposals, but because you insisted that we immedi-
ately discuss economics, we reluctantly agreed to.” (Emphasis
added.) Again, Lerner does not assert that at the outset the par-
ties agreed to discuss noneconomics first and only after all
noneconomics are resolved would the parties discuss econom-
ics; and that, therefore, the Union is violating this agreement
with Respondents. Lerner’s use of the word “immediately” is
interesting in that it appears in an email dated almost 9 months
after bargaining had begun. And the Union tendered its eco-
nomic proposal to Lerner almost 4 months after bargaining
began. Lerner and Kipp are not credible witnesses. Their testi-
mony is not credited. I find Neimark to be a credible witness.
His testimony is credited. When the Union presented its eco-
nomic proposal Lerner refused to accept it and he refused to
bargain over economic issues. As alleged in paragraphs 6(v)
and 7 of the October 29, 2008 complaint, Respondents refused
to bargain over economic issues in violation of the Act.
With respect to the allegation that Lerner refused to make
economic proposals, as noted above, on May 7, 2008, Lerner
refused to accept the Union’s first economic proposal. Also, as
described above, there was an exchange of emails on June 2,
2008, with, as here pertinent, Lerner advising Neimark as fol-
lows: “Since we’re not yet discussing economics, I see no rea-
son for this [providing specified information to the Union]. Our
staff simply doesn’t have the time to produce paperwork for
you, that isn’t immediately necessary for negotiations.”
Neimark responded as follows: “We are discussing economics.
Please send the requested information.” Later that same day,
Neimark further responded as follows: “This is not only an
economic issue. It also relates to working conditions.” So al-
most a month after the Union tried to present its economic pro-
posals Lerner was refusing to bargain over economic issues, he
was refusing to make economic proposals, and he was refusing
to provide information to the Union which he asserted was
related to economic issues. This occurred 6 months after bar-
gaining began. One month later, on July 2, 2008, in an email
Lerner advised Neimark “. . . the economic portion of the con-
tract . . . . should be happening pretty soon.” On August 28,
2008, over 7 months after bargaining began, Lerner made a
wage proposal in that he indicated that he was willing to in-
crease CNA pay by 10 cents and that was it, but nothing for
anybody else.21 Until August 28, 2008, Lerner refused to make
an economic proposal. And during the period involved in the

21 It is noted that on June 18, 2008, the parties discussed the Union’s
emergency pay proposal. At that time Lerner indicated that he did not
see any emergency and he did not see any reason to raise the dollar
amount just because the minimum wage went up. Lerner did not offer a
counter or any other economic proposal at this session.
CAMELOT TERRACE

1993
October 29, 2008 complaint, Lerner never gave the Union a
written proposal on wages or economics. Respondents violated
the Act as alleged in paragraphs 6(vi) and 7 of the October 29,
2008 complaint in that they refused to make economic pro-
posals until August 28, 2008.
The May 29, 2009 Complaint
Section 8(a)(5) of the Act requires employers to bargain with
collective-bargaining representatives. Section 8(d) defines that
duty:

For the purposes of this section, to bargain collectively is the
performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times
and confer in good faith with respect to wages, hours, and
other terms and conditions of employment, or the negotiation
of an agreement.

The Board, in Nursing Center of Vineland, 318 NLRB 901, 905
(1995), indicated as follows:

In assessing whether an employer has engaged in good-faith
bargaining, the Board examines the parties’ overall conduct,
e.g., delaying tactics, unreasonable bargaining demands, uni-
lateral changes in mandatory subjects of bargaining, efforts to
bypass a union, [and] failing to designate an agent with suffi-
cient bargaining authority, to be indicative of a lack of good
faith.

As the facts of this case demonstrate, the only thing that Re-
spondents’—in their quest to demonstrate a lack of good-faith
bargaining—failed to do was to designate an agent without
sufficient bargaining authority. There is no question but that
Lerner had sufficient authority. What he did with that authority,
namely undermining the authority of the Union and engaging in
bad-faith bargaining, is something else. As noted above, Ler-
ner’s unreasonable bargaining demands include such things as
the Union agree not to represent LPNs at either Camelot or
Galesburg, the Union agree not to leaflet within a mile of the
facilities, employees engage in community service in order to
get a raise, and the Union agree to a peer review process with-
out union involvement, instead of a grievance procedure.
Paragraphs 6(a) and (b) of the above-described May 29,
2009 complaint collectively allege that at various times from
December 2008 through May 2009, Respondents Camelot and
Galesburg, through their representatives, Lerner and Kipp, met
with the Union for the purpose of collective bargaining with
respect to wages, hours, and other terms and conditions of em-
ployment, and during this period, Respondents collectively
failed and refused to bargain in good faith with the Union as the
exclusive collective-bargaining representative of the Camelot
and Galesburg units in that Respondents (i) restricted the
lengths of bargaining sessions; (ii) refused to provide requested
information to the Union; (iii) engaged in direct dealing with
Camelot bargaining unit members; and (iv) made unilateral
changes to unit employees’ terms and conditions of employ-
ment without providing the Union notice or an opportunity to
bargain.
Counsel for the General Counsel on brief contends that the
Union and Respondents did not bargain for 20 hours or more in
any one month between December 2008 and May 2009; that all
of the sessions since December 2008 have lasted less than 5
hours; that Respondents violated the Act by refusing to provide
requested and relevant information; that Respondents also un-
reasonably delayed in furnishing relevant information; that
Respondents did not make a reasonable good-faith effort to
respond to the Union’s information requests as promptly as
circumstances allow, West Penn Power Co., 339 NLRB 585,
587 (2003), enfd. in pertinent part 349 F.3d 233 (4th Cir. 2005);
that as of August 25, 2009, the Union had not yet received the
CNA screening information for employees at Galesburg; that
such information is presumptively relevant since CNAs are
members of the involved bargaining unit; that Lerner should
have provided Rhodes’ personnel file immediately upon the
Union’s request, Mt. Clemens General Hospital, 344 NLRB
450 (2005); that while Camelot census information is not pre-
sumptively relevant, Camelot was obligated to provide the in-
formation since the Union required the information to evaluate
Camelot’s bargaining position and to formulate its own bar-
gaining position, Laurel Bay Health & Rehabilitation Center,
353 NLRB 232, 268 (2008); that information on employee
attendance at Galesburg was also presumptively relevant, as it
concerned the bargaining unit, and even if it was not presump-
tively relevant it should have been produced because the Union
requested this information to evaluate Galesburg’s bargaining
positions; that Camelot’s meeting with employees about a pro-
posed health insurance change constituted direct dealing and
violated the Act; that in Southern California Gas Co., 316
NLRB 979 (1995), the Board set forth the criteria for determin-
ing whether an employer engaged in direct dealing with em-
ployees in violation of the Act, namely (1) that the employer
was communication directly with union-represented employees;
(2) the discussion was for the purpose of establishing or chang-
ing wages, hours, and terms and conditions of employment or
undercutting the role of the union in bargaining; and (3) such
communication was made to the exclusion of the union; that
Anderson admitted that she met with represented employees for
the purpose of changing their health insurance plan and the
Union was not included in the meeting; that it is longstanding
Board law that an employer violates Section 8(a)(5) of the Act
by unilaterally imposing new and different wages, hours, and
other terms and conditions of employment upon bargaining unit
employees without first providing their collective-bargaining
representative with notice and a meaningful opportunity to
bargain regarding the said change, NLRB v. Katz, 369 U.S. 736,
743 (1962); that where the parties are engaged in contract ne-
gotiations, “. . . [the] employer’s obligation to refrain from
unilateral changes extends beyond the mere duty to give notice
and an opportunity to bargain in that it encompasses a duty to
refrain from implementation at all unless and until an overall
impasse has been reached in bargaining for the agreement as a
whole,” Bottom Line Enterprises, 302 NLRB 373, 374 (1991);
that the reduction for the housekeeping and laundry staff at
Galesburg violated the Act in that the Union was not notified in
advance or provided an opportunity to bargain over this change;
that work schedules are mandatory subjects of bargaining, Ra-
ven Government Services, 331 NLRB 651 (2000); that Re-
spondents’ change in employee health insurance carrier without
first providing the Union notice and an opportunity to bargain
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1994
violated the Act; that health insurance for current employees is
a mandatory subject of bargaining; that Camelot’s granting of
employee incentive raises during negotiations for an initial
contract violated the Act in that an employer cannot make uni-
lateral changes in working conditions during negotiations, even
though the terms of employment are improved, lest the union
be denigrated in the employees’ eyes, Grosvenor Resort, 336
NLRB 613, 617 (2001); that Camelot gave these raises without
providing the Union with notice and an opportunity to bargain;
that, with respect to Camelot’s claim of past practice, the party
making this claim has the burden of proof on this issue and
must show that the practice occurred with such regularity and
frequency that employees could reasonably expect the practice
to continue or reoccur on a regular and consistent basis; that it
is well settled that an employer’s past practices prior to the
certification of a union as the exclusive collective-bargaining
representative of the employees do not relieve the employer of
the obligation to bargain with the certified union about the sub-
sequent implementation of those practices that entail changes in
wages, hours, and other terms and conditions of employment of
unit employees, Mackie Automotive Systems, 336 NLRB 347
(2001); that a respondent cannot rely on asserted historic rights
to act unilaterally, distinct from established past practice of
doing so, Goya Foods of Florida, 347 NLRB 1118, 1119
(2006); that the right to exercise sole discretion changes when
the union becomes the certified collective-bargaining repre-
sentative, Id.; that Camelot’s granting incentive raises after the
Union’s certification without providing the Union notice and an
opportunity to bargain violated that Act; that Galesburg’s uni-
lateral implementation (no prior notice to the Union and no
according an opportunity to the Union to bargain over this) of a
policy of increased probationary periods for rehired employees,
a mandatory subject of bargaining, also violated the Act in that
Galesburg produced no evidence that this policy was in place
prior to October 2008, a time when the Union was certified to
represent specified employees of Galesburg; that Camelot’s
implementation of the new attendance policy as set forth in
General Counsel’s Exhibit 91 on March 6, 2009, which is a
mandatory subject of bargaining, without providing the Union
notice and an opportunity to bargain violated the Act, Toledo
Blade Co., 343 NLRB 385, 387 (2004); that even if such at-
tendance policy existed before the Union’s certification, it was
never provided to the Union, and at a minimum, the evidence
establishes that Camelot undertook a more strict enforcement of
the alleged policy in March 6, 2009; that an employer’s change
in enforcement of attendance and disciplinary rules represents a
change in the employee’s terms and conditions of employment,
San Luis Trucking, 352 NLRB 211 (2008); that the Board has
held that a change from lax enforcement of a policy to more
stringent enforcement is a matter that must be bargained over,
Vanguard Fire & Security Systems, 345 NLRB 1016 (2005);
that Camelot produced no evidence of enforcement of the al-
legedly preexisting attendance policy prior to the discharge of
Rhodes; that since Rhodes’ discharge was based on her viola-
tion of the newly implemented and/or enforced attendance poli-
cy, her discharge violated Section 8(a)(5) of the Act; that in
refusing to bargain over the termination of Rhodes, Camelot
violated the Act; that on December 17, 2008, Lerner offered a
10 cents raise for all employees only to retreat on February 3,
2009, to his earlier position of offering a 10 cents raise for
CNAs only; that the final tentative agreement for Galesburg
contained a starting wage of a 10-cent raise for CNAs only; and
that Lerner offered no explanation for his regressive proposals,
and, therefore, Respondents, for this reason and for the reasons
described above, should be found to have negotiated in bad
faith with the Union.
The Charging Party on brief argues that the settlement
agreements reached by the parties in December 2008 (GC Exh.
94), required that Lerner meet with the Union for sessions last-
ing no less than 5 hours, and that the parties meet for 20 hours
per month, for each facility; that the very first opportunity that
Lerner had to violate the terms of the settlement agreements he
did so; that Lerner restricted bargaining sessions to 20 hours a
month for both contracts; that Lerner never offered to bargain
for 40 hours a month; that Lerner restricted the time of bargain-
ing sessions beyond the 5-hour minimum; that between De-
cember 2008 and May 2009 there was not 1 month when Re-
spondents satisfied their bargaining obligation regarding how
long the parties would negotiate; that Lerner’s pattern of delays
is even more egregious than that of Celex Corp., 322 NLRB
977 (1997), because Lerner’s violations continued even after a
settlement with the Union and a corresponding promise to meet
regularly and to bargain in good faith; that Respondents repeat-
edly refused to provide the Union with information necessary
for bargaining; that when information was provided, it was
often late, incomplete and incorrect; that on December 19,
2008, the Union requested information from Lerner on econom-
ics to clarify the Union’s position of wages and health insur-
ance, and Lerner refused to provide the financial data the Union
was requesting; that on June 2, 2008, the Union requested a
printout of hours worked by each employee at Galesburg for
every pay period from January 1, 2008, to current and Lerner
refused to provide the requested information based on his uni-
lateral position that the parties were not discussing economics;
that on January 3, 2009, Neimark requested certification of
CNA background checks, initially Lerner refused to provide the
information, it was alleged that the information for Galesburg
was mailed to Neimark at the wrong address in late August
2009 (the week before the trial herein was scheduled to begin
which was 7 months after Neimark requested the information),
and the information for Camelot was not provided; that on Feb-
ruary 9, 2009, the Union requested census information so that it
could develop a proposal that would tie the census to bonuses,
Lerner indicated that he would not provide the information
because it was financial in nature, and about 3 months after it
was requested the information was provided for one of the fa-
cilities but not the other; that on February 9–10, 2009, the Un-
ion requested a copy of the unilaterally implemented healthcare
plan and other related materials, Lerner did not provide it im-
mediately, but it was subsequently provided; that on February
25, 2009, the Union requested attendance records for all em-
ployees at Galesburg, Lerner refused to provide the records,
later Lerner claimed that the information did not exist despite
the fact that management had an attendance policy that tracked
absences, the Union renewed its request in May 2009, the doc-
uments for Camelot were provided several week later, and the
CAMELOT TERRACE

1995
information was never provided for Galesburg; that the with-
holding of Rhodes employment file from the Union until
Rhodes authorized its release is further evidence of bad faith,
Deadling Express, 313 NLRB 1244 (1994) (even if the em-
ployer had a good-faith belief that the information requested
was not disclosable on privacy grounds, the sincerity of its
belief is irrelevant because such information is presumptively
relevant to a Union’s role as exclusive collective-bargaining
representative); that the denial of the requested correct pay
information from Respondents made it difficult for the Union to
modify and adjust its proposals to be mutually agreeable to the
employer, which is further evidence of bad-faith bargaining;
that the Union was harmed by the delay in providing infor-
mation because it involved a current or forthcoming matter in
negotiations and would have been used to determine strategy
and tactics in forthcoming negotiations; that Lerner engaged in
direct dealing with members of the Camelot unit when after
October 2008 (after union certification) they signed an agree-
ment that they would be on a 6-month probationary period and
agreed to comply with a strict attendance policy; that after the
Union was certified, some of the Camelot employees received
incentive raises; that the Union was given no prior notice of the
raises, the Union was not accorded an opportunity to bargain
over them, and the raises were a deviation from the wage poli-
cy; and that Respondents’ unilateral changes to the terms and
conditions of employment without giving the Union prior no-
tice and an opportunity to bargain include the unilateral reduc-
tion of housekeeper’s hours, the unilateral change of the health
care plan, the unilateral implementation of incentive wages for
CNAs, the unilateral implementation of a new attendance poli-
cy (in the alternative, the Union argues that even if Respondent
began strictly enforcing an already existing policy, the Union
was not allowed an opportunity to bargain the impact of the
change in enforcement), and the unilateral change of the rein-
statement policy.
The Respondents on brief contend that since December 2008
“Respondent made itself available to bargain each week for five
hours” (Respondents’ brief, unmarked p. 2); that any session
that was shortened was based on mutual consent; that Lerner
did not initially provide background checks to the Union be-
cause Lerner considered the request to be unwarranted and a
harassing tactic by the Union; that in order to be compliant with
the Board, Respondents ultimately did spend the many unnec-
essary hours to gather and mail the background checks to the
Union; that Galesburg does not keep the attendance records
Neimark requested; that Camelot did not provide the requested
census information because it was financial information and
Respondent never said that it could not afford the economic
requests of the Union; that Neimark asked for census and payer
source; that a simple census list would not have been refused,
but that is not what Neimark asked for; that when the Board
indicated in April 2009 that the census information should be
provided it was given to Neimark in May 2009; that Lerner was
reluctant to give Rhodes’ entire personnel file to the Union
without her expressed permission, due to concerns about em-
ployee confidentiality; that Camelot did not unlawfully poll its
employees about health insurance since in July 2007, before the
Union was certified, Anderson allegedly notified Neimark that
Camelot was looking for less expensive health insurance and it
would be canvassing its employees to see if they would be in-
terested in joining the group; that since no objection was ever
made by the Union to the possible change for the 2008 policy
year, the canvassing for a change in 2009 policy year, after the
Union was certified, was done justifiably; that with respect to
the reduction of housekeeper hours, Respondents bargained
with the Union over this issue and Babcock made the sugges-
tion that the employees would prefer to each reduce their work
by an hour, rather than have an employee lose their job; that the
1 hour reduction was implemented the day after the meeting
with the Union at which the reduction was discussed; that it
was past policy for Galesburg to have an increased probation-
ary period “for employees that were rehired after previously
being terminated with a poor work attendance record” (Re-
spondents’ brief, unmarked p. 12); that Sangster testified that
she always increased the probationary period of rehired em-
ployees for anybody that had trouble with call-ins or other
work-related problems getting to work; that this was shown to
be the past policy by General Counsel’s Exhibit 92; that Gales-
burg’s facility policy-(GC Exh. 100) states, “IF AN
EMPLOYEE IS SEPARATED AND SUBSEQUENTLY RE-
HIRED, HE/SHE SHALL BE SUBJECT TO ANOTHER
PROBATIONARY PERIOD”; that the word “ANOTHER”
does not mean “additional” as the General Counsel intimates
but rather it means a different period than the standard 30 days,
and, as Sangster testified, it was up to her to decide the length;
that as past history showed, the probationary period for a re-
hired employee was always extended to a 6-month period; that
the Union clearly waived its right to negotiate about the change
in insurance carrier for Camelot and Galesburg when Neimark
told Lerner that he did not care about a possible change in in-
surance carrier since the Union’s members were not a part of
that, and when Neimark did not respond to Anderson’s July
2007 letter (R. Exh. 19); and that

The Union’s contention that the Respondent never notified
them that they instituted a new plan, is simply untrue. In (GC
79) Neimark acknowledges “I looked at it (the new plan) for 1
minute.” If they weren’t notified of the change and weren’t
provided with a copy, how did he look at it? [Respondents’
brief, unmarked p. 14 with emphasis in original.]

Respondents argue further that page 14 of Camelot’s employee
handbook (GC Exh. 14), states, “At the discretion of the admin-
istrator and subject to business conditions, increases in pay will
be considered”; that Camelot’s policy clearly allows raises at
the discretion of the administrator, this was Camelot’s practice,
and it was not a new or a unilateral change made without bar-
gaining with the Union; and that, with respect to Rhodes’ ter-
mination, Camelot was not aware that other employees had bad
attendance, and, therefore, Camelot was not imposing a new
policy or newly enforcing an old policy.
Since the allegations in paragraphs 6(a) and (b) of the May
29, 2009 complaint refer to the allegations in other of the para-
graphs of this complaint, paragraphs 6(a) and (b) will be cov-
ered after the allegations in the other paragraphs are dealt with.
Paragraph 7 of the above-described May 29, 2009 complaint
alleges that since about January 3, 2009, the Union has request-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1996
ed Galesburg furnish the Union with proof that CNAs were
properly screened by Respondent prior to being hired; that this
information is necessary for, and relevant to, the Union’s per-
formance of its duties as the exclusive collective-bargaining
representative of the involved unit; and that since about January
5, 2009, Galesburg, by way of a letter from Lerner, has failed
and refused to furnish the Union with this information.
As noted above, on January 3, 2009, Neimark email Lerner
as follows:

At the bargaining session on December 31, you made the
claim that you have no difficulty finding CNAs to work at
Galesburg Terrace at the current pay rate, minimum wage,
and that in order to remain competitive, you intend to not pay
workers any more than you have to in order to hire. Further-
more, you indicate that CNAs are satisfied with the wage you
offer. The following information is needed in order to evalu-
ate the claim you have made.

The email went on indicate exactly what information the Union
requested. Three times Lerner subsequently advised Neimark
that “we don’t keep lists of background checks” or “we don’t
have the lists that you requested.”
On the last day of the trial herein, Sangster sponsored Re-
spondents’ Exhibit 23 which she testified is the CNA back-
ground checks Neimark requested, which she mailed to him on
August 21, 2009. The postsettlement, reopened, second session
of the trial herein began on August 25, 2009. Sangster claims
that she did not know that Neimark first requested information
on CNA screening in January 2009, and, before it was pointed
out to her on cross-examination, she was not aware that on
August 21, 2009, she she sent the information to the wrong
address. Sangster admitted that Galesburg maintains a copy of
each CAN’s screening inside their personnel file. Neimark
testified credibly that the Union never received the CNA
screening information for Galesburg. Such information has
been shown to be necessary for, and relevant to, the Union’s
performance of its duties as the exclusive collective-bargaining
representative of the involved unit. As pointed out by counsel
for the General Counsel on brief, such information is presump-
tively relevant since CNAs are members of the involved bar-
gaining unit. The Act was violated as alleged in paragraphs 7
and 13 of the May 29, 2009 complaint.
Paragraph 8 of the above-described May 29, 2009 complaint
alleges that since about February 25, 2009, the Union has re-
quested Galesburg furnish the Union with employee attendance
information for employees of Galesburg; that this information
is necessary for, and relevant to, the Union’s performance of its
duties as the exclusive collective-bargaining representative of
the involved unit; and that since about February 25, 2009,
Galesburg, by way of a verbal response from Lerner, has failed
and refused to furnish the Union with this information.
The Union never did receive employee attendance infor-
mation for employees of Galesburg. Lerner initially indicated to
Neimark that he did not have to give this information to the
Union. Subsequently, Lerner took the position that the infor-
mation does not exist. Lerner did not specifically deny
Neimark’s testimony that he then asked Lerner how he could
have a policy in which management gives somebody a verbal
warning after three absences in a year and Lerner responded,
“Oh, that’s a good point.” (Tr. 875.) Lerner is not credible.
General Counsel’s Exhibits 92 and 99, and Respondents’ Ex-
hibit 22 demonstrate that Galesburg does keep track of attend-
ance and who is supposed to be working when. Additionally,
there has to be a method for determining whether an employee
is in the facility working so that Galesburg can determine what
hours they should be paid for. Neimark testified that he made
this request because he wanted to verify Lerner’s statement that
he was satisfied that he was able to get people to work. This
information is necessary for, and relevant to, the Union’s per-
formance of its duties as the exclusive collective-bargaining
representative of the involved unit. Information on employee
attendance is presumptively relevant and the Union requested
the information to evaluate Lerner’s bargaining positions. The
Act was violated as alleged in paragraphs 8 and 13 of the May
29, 2009 complaint.
Paragraph 9 of the above-described May 29, 2009 complaint
alleges that since about February 9, 2009, the Union has re-
quested Camelot furnish the Union with census information
regarding the patient population at Camelot; that this infor-
mation is necessary for, and relevant to, the Union’s perfor-
mance of its duties as the exclusive collective-bargaining repre-
sentative of the involved unit; and that since about February 11,
2009, Camelot, by an electronic message from Lerner, has
failed and refused to furnish the Union with this information.
At the February 9, 2009 bargaining session Neimark, as here
pertinent, requested census information regarding the patient
population at Camelot and Galesburg. Neimark testified that he
was seeking the historical census information so that it could
develop a proposal that would tie the census to bonuses and
because Lerner was denying the Union financial information,
and it was the Union’s way of figuring out what would be a
reasonable economic proposal. In his February 11, 2009 email
to Neimark, Lerner indicated, “Your request for census infor-
mation is not being honored, as it is financial in nature.” Came-
lot’s administrator, Anderson, testified that the Camelot census
information the Union requested in February 2009 was provid-
ed in May 2009; and that she did not provide the Camelot cen-
sus information sooner because Lerner told her that she was not
required to provide this information because it was financial
information. More than once Neimark testified that the Union
never received the census information for Camelot. Neimark
also testified that eventually the census information for Gales-
burg was provided; and that no other nursing home owner ever
refused to provide census information. Neimark is a credible
witness. For the reasons set forth elsewhere herein, Anderson is
not a credible witness. Neimark’s testimony is credited. This
information is necessary for, and relevant to, the Union’s per-
formance of its duties as the exclusive collective-bargaining
representative of the involved unit. Although census infor-
mation is not presumptively relevant, the Union needed this
information to evaluate Lerner’s bargaining position and to
help formulate its own position. The Act was violated as al-
leged in paragraphs 9 and 14 of the May 29, 2009 complaint.
Paragraph 10 of the above-described May 29, 2009 com-
plaint alleges that on or about April 6, 2009, the Union request-
ed that Camelot furnish the Union with the personnel file of
CAMELOT TERRACE

1997
Kathy Rhodes; that this information is necessary for, and rele-
vant to, the Union’s performance of its duties as the exclusive
collective-bargaining representative of the involved unit; and
that on about April 6, 2009, Camelot, by a statement by Lerner,
failed and refused to furnish the Union with this information.
The facts regarding this allegation are not in dispute; a re-
view of Rhodes’ personnel file was relevant to the investigation
of her discipline and the processing of her grievance. The issue
is whether Lerner was entitled to deny the Union access to
Rhodes’ personnel file until Rhodes signed a written authoriza-
tion. As pointed out by counsel for the General Counsel on
brief, the Board, in Mt. Clemens General Hospital, 344 NLRB
450, 463–454 (2005), indicated that under the circumstances
existing here, namely that the employer did not show that the
personnel file contained information of an “intimate and highly
personal nature,” than the employer has failed to satisfy its
burden of showing that it had a legitimate confidentiality claim,
and the employer violates Section 8(a)(5) of the Act by failing
and refusing to provide the personnel file of a bargaining unit
employee to the union without employee consent. The Act was
violated as alleged in paragraphs 10 and 14 of the May 29,
2009 complaint.
Paragraph 11 of the above-described May 29, 2009 com-
plaint alleges that collectively Galesburg and Camelot, without
prior notice to the Union and without affording the Union an
opportunity to bargain with them with respect to this conduct
and the effects of this conduct, engaged in the following con-
duct regarding matters which collectively relate to wages,
hours, and other terms and conditions of employment and are
mandatory subjects for the purposes of collective bargaining:

(a) In or about January 2009, Galesburg reduced the
hours of its housekeeping and laundry employees;
(b) Since about December 2008, Galesburg increased
the length of the probationary period for certain bargaining
unit employees;
(c) In about February 2009, Respondents Galesburg
and Camelot changed their employee health insurance car-
rier;
(d) On or about February 23, 2009, the Union discov-
ered that on a date or dates unknown prior to February 23,
2009, Camelot gave incentive raises to certain bargaining
unit employees;
(e) On about March 6, 2009, Camelot implemented a
new attendance policy;
(f) On about March 6, 2009, Camelot began more
strictly enforcing its attendance policy, and;
(g) On about March 11, 2009, Camelot discharged
employee Rhodes pursuant to this newly implemented
and/or more strictly enforced attendance policy.

With respect to the allegation that in or about January 2009,
Galesburg unlawfully reduced the hours of its housekeeping
and laundry employees, as noted above, Neimark, who I find to
be a credible witness, testified that that he learned of the reduc-
tion of hours in housekeeping from member Kilpatrick who
told him before the January 22, 2009 bargaining session began
that she and other housekeepers were reduced in their hours;
that management did not inform the Union of any intention to
reduce hours in housekeeping or any department; that prior to
this session the Union did not receive any notice from Re-
spondents of their change in the hours of the housekeepers at
Galesburg and the Union was not given the opportunity to bar-
gain over the decision or its effects; that when the Union tried
to discuss this matter at this session, Lerner indicated that he
was willing to talk but he wasn’t going to change anything; and
that it is not true that Lerner was the one who brought up the
reduction of hours at Galesburg at the January 22, 2009 bar-
gaining session but rather the Union brought it up because em-
ployee Kilpatrick had indicated that Galesburg had already
reduced the hours before this meeting.
There is quite a difference between what Respondents’ wit-
nesses testified to when they gave affidavits to the Board in
May 2009 and what they testified to when they were called as
witnesses at the trial herein.
When Sangster gave her affidavit to the Board on May 1,
2009, she testified, “I do not know if the union was notified of
the reduction of employee hours in advance by the employer.”
(Tr. 686 with emphasis added.) When called by counsel for the
General Counsel to testify at the trial herein on August 26,
2009, Sangster testified as follows:

Q. . . . . Do you know if the union was ever notified
of the change?
A. Yes, I believe they were. After negotiations, he
[Lerner] came out to me and brought to me a proposal that
someone else had suggested inside the bargaining commit-
tee. [Tr. 685, with emphasis added.]

When subsequently called by Lerner on August 26, 2009,
Sangster testified as follows:

Q. In January of 2009, did you propose to your super-
visors to make some layoffs?
A. Yes, I did.
Q. And who—which supervisor did you propose to?
A. Brenda Philbee.
. . . .
Q. Did you mention this to your bosses?
A. Yes, I did.
Q. And who did you mention that to?
A. Deb Kipp and Mr. Lerner.
Q. Okay. And tell us what you told them.
A. Just that we were—due to the census being low,
our public aid rate being cut that we were going to have to
make some cuts somewhere and we chose to—since laun-
dry and housekeeping wasn’t as busy, we didn’t have as
much stuff to do that they would—that that would be the
best place to start. But I suggested taking—to layoff one
person.
Q. So you suggested to your bosses to layoff one per-
son?
A. Yes.
Q. Okay. And what was their response?
A. That they would take it to the union and discuss it
with them.
Q. Okay. And what happened after the meeting with
the union?
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1998
A. That they suggested that the union—or the girls
that were in the union had discussed the fact that it would
[be] better to cut everybody back an hour.
Q. So was your original plan approved?
A. No.
Q. Did you implement any changes in the work hours
of laundry and housekeeping employees before the union
agreed to it?
A. No. [Tr. 742 and 743.]

Kipp gave an affidavit to the Board on May 5, 2009. In it she
testified as follows:

The housekeeping staff at Galesburg has had a reduction in
hours worked. Instead of terminating anyone, everyone got to
keep their jobs and we cut some hours. I do not know if the
union was provided notice or an opportunity to bargain over
the change in advance. [Tr. 774, with emphasis added.]

When called by Lerner to testify at the trial herein on August
26, 2009, Kipp gave the following testimony:

Q. In January of ‘09, did Galesburg Terrace reduce
the hours of its housekeeping and laundry employees?
A. Yes, they did. They were told to do a layoff.
Q. Okay. And—okay. Why was there a need to cut
hours?
A. The number of residents in the building didn’t re-
quire the staff that was in housekeeping and laundry. So
many of the rooms were empty, don’t need to be cleaned.
There’s fewer clothes to be done and linens to be done in
the building.
Q. And how did you go about implementing this re-
duction? Did you notify someone or you just did it?
A. I didn’t do anything.
Q. Okay. Did Galesburg Terrace notify anybody about
this layoff with employees?
A. I would assume so.
Q. You what?
A. I would assume so.
Q. Okay. Were you at a meeting with the union where
this issue was discussed?
A. Yes.
Q. Okay. And do you remember when that was?
A. Sometime in January.
Q. Okay. And can you tell us what was proposed to
the union by management?
A. It was a layoff.
Q. And what exactly was the proposal to layoff?
A. I believe it was one person.
Q. Okay. The union was told that one person—you
would like to layoff—Galesburg Terrace wanted to layoff
one person?
A. Yes, there was going to be layoffs.
Q. Okay. And who was at this meeting?
A. There was Ron, Chastity Babcock, and Paula Kil-
patrick. There was you and there was I. [The credible evi-
dence of record demonstrates that Frascone was also pre-
sent at this session.]
Q. Okay. And did the union negotiators offer their
opinion on this issue after it was brought up?
A. Yes, they did.
Q. And can you tell us what they suggested?
A. It was Chastity Babcock that suggested it, and she
said instead of anybody losing their job, what about just
taking an hour? And we accepted that proposal.
Q. What do you mean by taking an hour?
A. Cutting an hour off of everyone’s—in those two
departments, cutting an hour off their daily schedule.
Q. Okay. And did management agree to that—
implement that solution?
A. Yes we did.
Q. And can you tell us Chastity’s demeanor after that
was accepted?
A. She was pleased with herself. I was very pleased
with her because she had said very little during negotia-
tions. And she had, you know, contributed then to the ne-
gotiations, and she stopped somebody from being laid off.
Q. So what was the resolution of the issue after that
meeting?
A. That everyone would have one hour taken off their
day that they worked.
Q. And was it the union or management who first
brought up the subject of his layoff at the meeting?
A. I don’t recall.
Q. And was there a layoff implemented before this
meeting?
A. Not that I’m aware of.
Q. Was there a reduction in hours before this meeting?
A. Not that I’m aware of. [Tr. 762–764.]

Lerner then testified that at the January 22, 2009 bargaining
session he advised Neimark that the administrator wanted to
layoff one person in housekeeping and laundry; that Babcock
recommended that instead of laying off an employee, every-
one’s hours could be reduced by 1 hour a day; and that this
alternative suggestion was implemented.
On rebuttal, Frascone, who I find to be a credible witness,
testified that she attended a bargaining session at Galesburg at
which the reduction of hours for housekeeping and laundry
employees was discussed; that the Union became aware that the
housekeeping hours had been cut when Kilpatrick told those
who had come to this bargaining session, just before the session
began, that management had decided to cut the hours in house-
keeping and they chose to cut everybody’s hours by an hour a
day; that Kilpatrick told them that it had already been changed,
“they were going to put it into effect” (Tr. 865); that during this
bargaining session Lerner was told by the union representatives
that he would have to bargain this change with the Union and
that the Union’s position was seniority should rule [“the junior
person should get the hit on the hours, not with everybody” (Tr.
866)]; that Lerner said that he was not going to go by seniority;
that management implemented a change where every house-
keeper and laundry employee had a 1-hour cut a day; that the
Union did not learn of this change from Lerner or Kipp but
rather from a bargaining unit employee; that Kilpatrick told
them before the bargaining session that the hours were going to
CAMELOT TERRACE

1999
be cut and that the employees had already been told about the
reduction; that she believed that people’s hours were actually
shortened before this bargaining session; that Kilpatrick told
them that employee’s hours were being cut; that Lerner did not
announce at this meeting that management was contemplating
laying off someone; and that there was no discussion at this
bargaining session about a layoff. While there may be a ques-
tion of whether the reduction was actually implemented before
the January 22, 2009 bargaining session, there is no question
but that this reduction was announced to employees as a fait
accompli before the January 22, 2009 bargaining session, be-
fore the Union was given any notice and before the Union was
given an opportunity to bargain over this change and the effects
of this change.
The testimony of Neimark and Frascone is credited. Neither
Lerner nor Kipp have any credibility. The testimony of Kipp
and Lerner regarding notifying and according the Union an
opportunity to bargain with respect to reducing the hours of
housekeeping and laundry employees is a fabrication. Lerner
was able to get Sangster to change her testimony in that on May
1, 2009, she testified that she did not know if the Union was
notified of the reduction of employee hours in advance by the
employer. Sangster’s May 1, 2009 testimony does not refute the
testimony of Neimark and Frascone. Since here, unlike Kipp’s
UAW testimony, the testimony Lerner elicited from Sangster
deals with a material fact in issue, it appears that Lerner en-
gaged in subornation of perjury. Lerner was there and he knows
exactly what happened. The same would apply with respect to
the testimony Lerner elicited from Kipp after Kipp originally
testified that “I do not know if the union was provided notice or
an opportunity to bargain over the change in advance.” (Tr.
774, with emphasis added.) Sangster’s subsequent testimony,
which contradicts her May 1, 2009 testimony, is not credited.
Interestingly, as noted above, Lerner sent an email to Neimark
on February 23, 2009 (GC Exh. 81), and he indicated, among
other things, “Firstly, when there’s no union contract in place, it
is entirely up to the department heads to decide someone’s
salary and raises, based on their performance and also on the
facilities’ staffing needs.” If one switched “hours and sched-
ules” for “salary and wages” and deleted the performance lan-
guage, one is left basically with the position Lerner took on
January 22, 2009. As Neimark credibly testified, when the Un-
ion tried to discuss this matter at the January 22, 2009 session,
Lerner said that he was willing to talk but he was not going to
change anything.22 Work schedules are a mandatory subject of
bargaining. The Act was violated as alleged in paragraphs 11(a)
and 13 of the May 29, 2009 complaint.
Regarding the allegation that since about December 2008,
Galesburg unlawfully increased the length of the probationary
period for certain bargaining unit employees, as noted above,
during the January 22, 2009 bargaining session the parties dis-
cussed the reinstatement of member Woertz, who was a union

22 It is noted that neither Babcock nor Kilpatrick testified at the trial
herein. It is also noted that both of these Galesburg employees attended
bargain sessions at Camelot. And it is noted that, as found in Board
decisions described above, and as found herein, three Camelot employ-
ees were unlawfully terminated.
supporter who had quit. Neimark testified that Woertz did go
back to work at Galesburg but instead of complying with the
policy manual and past practice, Woertz was put on a 6-month
probation instead of the usual 3-month probation; that the Un-
ion learned of the 6-month probation from Woertz and not from
management; that Lerner indicated that it was the practice to
give 6-month probation to those who returned if they had at-
tendance problems; that the Union asked for and received proof
of this; that he was not provided any documents indicating that
employees were given a 6-month probationary period upon
rehire that were dated prior to the time when the Union was
certified to represent a unit of employees at Galesburg; that this
policy was not part of the information that management provid-
ed to the Union regarding management’s policies prior to
Woertz advising him that she had been placed on a 6-month
probationary period; that the Union had never been given notice
of a change in the probationary period for rehired employees
prior to this session, it had not been given an opportunity to
bargain over the increased probationary period for rehired em-
ployees or the effects of that decision; and that with respect to
the documents Galesburg produced showing that other return-
ing employees had a 6-month probation, the documents were
signed after the Union requested them, the facility engaged in
deceptive practices in producing these documents, and even if
the change occurred when Respondents said it happened, it
would have still have happened after the Union was certified.
As noted above, Sangster testified that General Counsel’s
Exhibit 100, which reads as follows: “AN EMPLOYEE’S
PROBATIONARY PERIOD SHALL BE HIS INITIAL
THIRTY DAYS OF ACTIVE EMPLOYMENT AS A
PROBATIONARY EMPLOYEE. IF AN EMPLOYEE IS
SEPARATED AND SUBSEQUENTLY RE-HIRED, HE/SHE
SHALL BE SUBJECT TO ANOTHER PROBATIONARY
PERIOD” is in the employee packet when they are hired; that
the policy has been given to employees as long as she has been
at Galesburg; that there is no other written policy at Galesburg
concerning probationary periods for employees; that Woertz
was a CNA who gave 2 weeks notice and left Galesburg on
good terms; that subsequently she and Orosco rehired Woertz;
that Woertz was given a 6-month probationary period instead of
30 days because every second weekend Woertz would take a 4-
day weekend; that, while the 6-month probationary period is
not a written policy of Galesburg, it is what Galesburg has done
since she has been there; that General Counsel’s Exhibit 99 are
five signed agreements with employees who were rehired be-
tween October 31, 2008, and May 5, 2009, to accept a 6-month
probationary period; that these are all of the contracts of this
nature that Galesburg had signed up until the information was
faxed to counsel for the General Counsel on May 5, 2009; that
she was not aware of any others since she has been at Gales-
burg; and that she did not know if the policy had ever been
given to the Union.
When called by Lerner later in the trial, Sangster testified
that she has increased the number of days in the probationary
period for people who have trouble with call-ins or being late or
tardy; that people have signed contracts calling for probationary
periods longer than 30 days when they returned to work after
they’ve quit (GC Exh. 92); that she put a copy of these con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2000
tracts at the front desk for Neimark to pick up; that these con-
tracts were in the files when she took them out; that she did not
ask someone that day or that week to have them signed; that
extending the 30-day probationary period was not a new policy
of hers in that it has been in place for as long as she has been at
Galesburg, namely 3 years;23 that before she was hired at
Galesburg there are other Galesburg employees whose proba-
tionary period was extended but there was no contract for them;
and that she implemented an extended probationary period for
Woertz because of her frequent call-ins.
I find Neimark to be a credible witness. His testimony that
that he was not provided any documents indicating that em-
ployees were given a 6-month probationary period upon rehire
that were dated prior to the time when the Union was certified
to represent a unit of employees at Galesburg is credited. His
testimony that this policy was not part of the information that
management provided to the Union regarding management’s
policies prior to Woertz advising him that she had been placed
on a 6-month probationary period is credited. His testimony
that the Union had never been given notice of a change in the
probationary period for rehired employees prior to this session,
and the Union had not been given an opportunity to bargain
over the increased probationary period for rehired employees or
the effects of that decision is credited. I do not find Sangster to
be a credible witness. Indeed, as noted above, when she
changed her testimony about notification to the Union regard-
ing the reduction of hours for the housekeeping and laundry
staff, I believe that she committed perjury. I do not rely in any
way on her testimony. The documents received at the trial here-
in do not demonstrate that the policy in question existed before
the Union was certified to represent employees in the involved
Galesburg unit. This is a mandatory subject of bargaining.
Based on the evidence of record, the conclusion is inescapable
that Galesburg unilaterally implemented the 6-month proba-
tionary period after the Union was certified, and Galesburg did
not give the Union prior notification of this proposed policy nor
did Galesburg accord the Union an opportunity to bargain over
this policy and the effects of this policy. The Act was violated
as alleged in paragraphs 11(b) and 13 of the May 29, 2009
complaint.
With respect to the allegation that in about February 2009,
Respondents Galesburg and Camelot unlawfully changed their
employee health insurance carrier, as noted above, Respondents
on brief argue as follows:

The Union’s contention that the Respondent never notified
them that they instituted a new plan, is simply untrue. In (GC
79) Neimark acknowledges “I looked at it (the new plan) for 1
minute.” If they weren’t notified of the change and weren’t
provided with a copy, how did he look at it? [Respondents’
brief, unmarked p. 14, with emphasis in original.]

In my opinion, Lerner has lied under oath, he has suborned
perjury—at least with respect to Sangster’s and Kipp’s testimo-
ny regarding the reduction of hours for the housekeeping and
laundry staff—and now, on brief, Lerner misrepresents the

23 Elsewhere, when she testified on August 26, 2009, Sangster testi-
fied that she was hired at Galesburg in 2007.
record. No one is alleging that Respondents never notified the
Union that Respondents instituted a new health insurance plan.
Lerner’s argument is a red herring. The allegation is that Re-
spondents changed their health insurance plans without (a)
giving the Union prior notice that they were not just looking but
they had actually reached that stage were they were going to
make a change, and (b) according the Union an opportunity to
bargain over the change and the effects of the change. A change
in health insurance coverage is a mandatory subject of bargain-
ing. General Counsel’s Exhibit 79 is an email of Neimark dated
February 11, 2009, wherein he is referring to what happened at
the February 9, 2009 bargaining session when he was advised
for the first time of a fait accompli, namely that Respondents
had already changed their employees’ health insurance cover-
age. General Counsel’s Exhibit 79 does not demonstrate that
the Union received prior notification and an opportunity to
bargain. It is dishonest to imply otherwise.24
On the one hand, Lerner testified that the switch from Unica-
re to Aetna was bargained and the parties in fact negotiated this
switch; and that the partied did not memorialize in writing the
switch from Unicare and Blue Cross to Aetna. On the other
hand, he and Kipp testified that in mid-September 2008 the
Union, in effect, verbally waived its right to bargain about the
change from Unicare and Blue Cross to Aetna. Neither Kipp
nor Lerner is a credible witness. Anderson testified that when
Camelot decided to change neither Neimark nor the Union were
notified of the change, and Camelot did not offer to bargain
over the change; and that Camelot’s coverage under Unicare
was an annual plan and in July 2007 she sent the above-
described letter to Neimark when Camelot was considering
changing its insurer at that time. Not only is the July 2007 letter
problematic for the above-described reasons, but Camelot did
not change its insurer at the time, and the letter is not relevant
to what actions Camelot took two insurance seasons later. The
July 2007 Anderson letter, which was allegedly sent to
Neimark, albeit admitted, is given no weight in deciding the
matters pending before me.
Frascone and Neimark are credible witnesses. As noted
above, Frascone testified that Neimark was correct in his Feb-
ruary 10, 2009 email to Lerner that she recalled it being men-
tioned when they met at Camelot that the Respondents were
looking; that Respondents informed the Union just that they
were looking into changing health insurance carriers; that the
Union was never told that there was in fact going to be an actu-
al change of insurance carriers for either Respondent; and that
the Union was never offered an opportunity to bargain over that
change. Frascone’s testimony is credited. Also, Neimark testi-
fied that he was never given the opportunity to agree or disa-
gree to the change in Respondents’ health insurance carrier,
which occurred sometime before the February 9, 2009 bargain-
ing session when he was first notified of the change; and that he

24 When someone chooses to represent themselves, they should be
held to the same standards as an officer of the court. If they are not,
then there will be a problem in dealing with unscrupulous individuals
who have decided that they can attempt to “game” the system and
suffer no consequences if they are caught because they are not an of-
ficer of the court.
CAMELOT TERRACE

2001
did not receive any prior notice that management intended to
actually change carriers, he did not receive notice of the actual
change in carriers, and the Union was not given an opportunity
to bargain over the change in health insurance carriers. The
testimony of Neimark is credited. A change in the employees’
health care plan is a mandatory subject of bargaining. Respond-
ents unlawfully made a unilateral change to an existing term or
condition of employment without prior notice to the Union and
without according the Union an opportunity to bargain over the
change and the effects of the change. The Act was violated as
alleged in paragraphs 11(c), 13, and 14 of the May 29, 2009
complaint.
Regarding the allegation that on or about February 23, 2009,
the Union discovered that on a date or dates unknown prior to
February 23, 2009, Camelot gave incentive raises to certain
bargaining unit employees, as noted above, on February 19,
2009, Neimark sent an email to Lerner asking him to explain
why a number of named employees received multiple pay rais-
es in a given year (after the Union was certified on October 10,
2007, to represent a unit of employees at Camelot) or received
a pay raise in their first year of employment. The latest date
cited by Neimark was “12/26/08.” Also, as noted above, Lerner
replied, as here pertinent, as follows:

Notwithstanding our doubts if you’re legally entitled to
request this specific employee information, in the spirit of
cooperation, we will provide the information we have.
Firstly, when there’s no union contract in place, it is en-
tirely up to the department heads to decide someones sala-
ry and raises, based on their performance and also the fa-
cility’s staffing needs. So there can always be inconsisten-
cies, between employees, as the employer can decide
what’s best for the facility at that time.
In response to your specific questions, unfortunately
we don’t keep records of why certain staff get different
raises than others. We therefore cannot give you complete-
ly specific answers to all our questions, but we can give
you the general recollections of our administrator.
Fortson, Jackson and Miller were all hired at a time
when CNA’s were in very short supply. So, beside[s] re-
ceiving a 90 day evaluation raise, they likely received an
incentive raise to stay.
Rhodes received an extra raise to be on the shower
team.
Sorenson worked in laundry, then kitchen, and then
got certified and began working as a CNA. There was a
pay increase during those changes and her certification.

Neimark testified that he was not given any prior notice of
Camelot giving these postcertification raises to certain bargain-
ing unit employees, and he was not accorded an opportunity to
bargain over this.
Of Respondents’ witnesses, Prang, who worked as a staff
nurse, then as DON at Camelot from January to March 2009,
and then as a staff nurse, testified that she was not aware of (a)
any program of incentive raises for CNAs or (b) CNAs being
given incentive raises since the time she worked at Camelot. In
her May 5, 2009 affidavit to the Board Camelot Administrator
Anderson testified as follows: “We have always given the
CNAs short pay. If by census, we are supposed to have three
CNAs and only two show up, those two are given extra pay,
short pay. I’m not aware of any other incentive pay we give
CNAs.” (Tr. 643.) When she testified at the trial herein on Au-
gust 26, 2009 Anderson testified that she did not know if Erica
Fortson, Kathy Jackson, and Christina Miller received incentive
raises because Camelot was short CNAs, and she thought it was
“because they were possibly good workers and we wanted to
keep them on board” (Tr. 760); and that it is not a written poli-
cy where employees are given incentive pay because Camelot
is short on CNAs and it needs them to stay. On redirect, Ander-
son gave the following testimony:

Q. BY MR. LERNER: You say it’s not a policy, but it’s
in your past practice to give money as a situation required
in order to keep an employee from leaving?
A. Yes, I would say yes.

Once again a witness of the Respondents, in effect, testifies
that her earlier testimony (affidavit) is not correct. Anderson
then speculates as to why Fortson, Jackson, and Miller received
raises. Finally, Anderson testifies that there is a past practice. I
credit the testimony that Anderson gave in her affidavit, as
quoted above. I do not credit her equivocal, speculative testi-
mony at the trial herein on this matter.
On brief, Respondents argue that page 14 of Camelot’s em-
ployee handbook (GC Exh. 14) states, “At the discretion of the
administrator and subject to business conditions, increases in
pay will be considered”; and that Camelot’s policy clearly al-
lows raises at the discretion of the administrator, this was Cam-
elot’s practice, and it was not a new or a unilateral change made
without bargaining with the Union. Also, as can be seen from
Lerner’s above-described February 23, 2009 email, Lerner
takes the approach that “. . . when there’s no union contract in
place [notwithstanding that the Union has been certified], it is
entirely up to the department heads to decide someone’s salary
and raises, based on their performance and also the facility’s
staffing needs.” The only explanation for Lerner’s stated posi-
tion is that this is part of Lerner’s effort to undermine the Union
to the extent possible.
As correctly pointed out by counsel for the General Counsel
on brief, Camelot’s granting of employee incentive raises dur-
ing negotiations for an initial contract violated the Act in that
the Board in Grosvenor Resort, 336 NLRB 613, 617 (2001),
indicated that:

[an] employer is prohibited from make unilateral changes [(no
prior notice to the Union or the opportunity to bargain)] in
[mandatory] working conditions during negotiations—even
though the terms of employment are improved—lest the un-
ion be denigrated in the employees’ eyes and its existence, as
an inevitable result, imperiled. General Transformer Co., 173
NLRB 360, 376 (1968) [citing NLRB v. Crompton-Highland
Mills, Inc., 337 U.S. 217 (1949) (employer unlawfully im-
proved wages during bargaining)].

With respect to Camelot’s claim of past practice, Camelot has
not shown with credible evidence that the practice occurred
with such regularity and frequency that employees could rea-
sonably expect the practice to continue or reoccur on a regular
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2002
and consistent basis. Additionally, as pointed out by counsel for
the General Counsel on brief, the Board in Mackie Automotive
Systems, 336 NLRB 347, 349 (2001), indicated as follows:

It is well settled that an employer’s past practices prior to the
certification of a union as the exclusive collective-bargaining
representative of the employees do not relieve the employer
of the obligation to bargain with the certified union about the
subsequent implementation of those practices that entail
changes in wages, hours, and other terms and conditions of
employment of unit employees.

As pointed out by the Board in Goya Foods of Florida, 347
NLRB 1118, 1120 (2006), a respondent cannot rely on asserted
historic rights to act unilaterally, distinct from established past
practice of doing so; “that right to exercise sole discretion
changed once the Union became the certified representative.
Accordingly, the Respondent no longer has a privilege to make
these unilateral changes.” Camelot’s granting incentive raises
after the Union’s certification without providing the Union
notice and an opportunity to bargain violated that Act as al-
leged in paragraphs 11(d) and 14 of the May 29, 2009 com-
plaint.
Since the allegations that (a) on about March 6, 2009, Came-
lot implemented a new attendance policy; (b) on about March
6, 2009, Camelot began more strictly enforcing its attendance
policy; and (c) on about March 11, 2009, Camelot discharged
employee Rhodes pursuant to this newly implemented and/or
more strictly enforced attendance policy are interrelated, they
will treated together.
As noted above, Rhodes testified that on March 6, 2009,
Prang, at a meeting with the nursing staff, told those present
“about a new policy that was going into effect . . . [, namely]
[i]f you missed five days in a calendar year, you were terminat-
ed.” (Tr. 588); that Prang said that this attendance policy was
going into effect “immediately” (Id.); that General Counsel’s
Exhibit 91 was not shown to her by Prang on March 6, 2009,
but it contains the same terms as Prang verbalized on March 6,
2009; that when Prang terminated her on March 11, 2009, over
the telephone, “She [Prang] just told me that they were making
her terminate me” (Tr. 591); that she had never received a ver-
bal warning from Camelot for missing days of work; and that
the copy of her employee report shown to her at the trial herein
is a fabrication to the extent that it contains language about
Camelot’s absence policy in that the language was not there
when she signed the document when she was hired. I find
Rhodes to be a credible witness. The testimony of Rhodes is
credited. The credible facts of record support her testimony. I
do not find Prang or Anderson to be credible witnesses. The
credible facts of record demonstrate that they lied under oath
regarding this matter.
In her May 5, 2009 affidavit to the Board, Prang testified, “I
pulled the attendance policy from the employee handbook that I
received when I was hired in April 2007. The policy I presented
is exactly as it appears in the employee handbook” (Tr. 614).
Prang testified at the trial herein that the testimony that she
gave in her affidavit was related to the meeting of March 6,
2009.
In her May 5, 2009 affidavit to the Board, Anderson, refer-
ring to the attendance policy at issue, testified, as here perti-
nent, as follows:

That policy is contained in the employee handbook. All new
hires receive an employee handbook and must sign that they
received it. I do not remember if the policy has been posted on
the bulletin board, but everyone gets it in the employee hand-
book. [Tr. 646 and 647.]

In his March 9, 2009 email to Neimark, Lerner indicates, as
here pertinent, “Facility didn’t post a new attendance policy.
The policies that were hung were clearly dated 2/28/07 and
3/1/07. In fact, they weren’t ever new then, as they were just a
reiteration of what’s in the policy book.” (GC Exh. 82.)
Neimark replied that the policies were not dated and they were
not even close to a reiteration of what is in the policy book.
Initially, Camelot’s witnesses indicated that the attendance
policy discussed with the staff on March 6, 2009, the attend-
ance policy which was allegedly utilized to justify the termina-
tion of Rhodes, was the one in the Camelot employees’ hand-
book. As can be seen by a comparison of General Counsel’s
Exhibits 91 and 93, as set forth above, Neimark was correct
when he indicated in his email to Lerner that the policy dis-
cussed with the staff on March 6, 2009, is not the policy in the
employees’ handbook.
As noted above, Neimark testified that Lopez told him that
there was a meeting of CNAs at Camelot on March 6, 2009,
they were handed a new policy on attendance, and the DON
indicated that this was a new policy and posted it at that time;
that he had not previously been provided an attendance policy
that looked anything like what Lopez told him about; that he
had been provided the attendance policy that was in the policy
manual; that he was not provided notice of the new attendance
policy from management before it was implemented and the
Union was not given the opportunity to bargain over the im-
plementation of a new attendance policy; that if it was in fact a
stricter enforcement of existing policy (the only existing policy
he was provided with by Camelot was the one in the employee
handbook), management did not bargain with the Union over
its decision to more strictly implement its attendance policy;
that management did not bargain with him about the termina-
tion of Rhodes; and that management did not contact him to
advise him that management intended to discharge Rhodes
under this new attendance policy. I find Neimark to be a credi-
ble witness. I credit this of his testimony. It is supported by the
credible evidence of record.
Camelot’s presentation on this issue is not credible. Notwith-
standing the fact that Rhodes testified that that the copy of her
employee report shown to her at the trial herein is a fabrication
to the extent that it contains language about Camelot’s absence
policy in that the language was not there when she signed the
document when she was hired, Camelot did not call DON
Huffman, who—along with Rhodes—signed the employee
report and allegedly wrote the absence policy. Here, an adverse
inference is warranted, namely that had Camelot called DON
Huffman, she would not have contradicted Rhodes on this
point. Respondent takes an indirect approach in that Sieber’s
employee report, which also has an absence policy written on
CAMELOT TERRACE

2003
it, is presented to show that such an approach was taken. The
problem is that DON Huffman, who allegedly wrote the ab-
sence policy on Sieber’s employee report, is not called by
Camelot to testify. Sieber is not called to testify. Prang and
Anderson testify about Sieber’s employee report but neither
one is a credible witness. Indeed, for a reason she could not
explain, Anderson signed Sieber’s employee report even
though Anderson testified that she did not sign Rhodes employ-
ee report because “I don’t have to sign these. I leave these up to
managers.” (Tr. 721.) Anderson signed what purports to be
Sieber’s employee report to inflate her testimony about the
existence of such an employee report. Rhodes’ testimony that
the absence policy language on her employee report is a fabri-
cation has been credited. Only one other such employee report
is provided by Camelot and, in my opinion, it too is a fabrica-
tion to the extent that it contains a handwritten absence policy.
As noted above, Prang changed her testimony, and she was
contradicted on more than one occasion by her affidavit to the
Board. After the involved attorneys and Lerner indicated that
they did not have any further questions for Prang, I conducted
an examination of this witness. Until this examination, Prang
did not specifically deny Rhodes’ testimony that on March 11,
2009, when she terminated her she told Rhodes, “[T]hey are
making . . . [me] terminate . . . [you].” (Tr. 591.) On the one
hand, Prang testified that when she became DON she undertook
a review of employee personnel files starting with CNAs. On
the other hand, Camelot takes the position that when Rhodes
was terminated it was not aware that other CNAs had attend-
ance records which were worse than Rhodes. If Prang did re-
view the attendance records of other CNAs, Prangs’ testimony
that as DON she did not remember ever suspending any em-
ployee for violating the attendance policy is problematic.25
Prang is not a credible witness and no weight is given to her
equivocal testimony that while she was DON she verbally
warned two unnamed employees and she “believed” that she
issued a written warning for violations of the attendance policy
but she could not recall any of the employee’s names. Prang’s
explanation as to why, with respect to Rhodes, she did not fol-
low the progressive steps in what she claimed to be Respond-
ent’s attendance rules does not hold water. Prang’s testimony
that during her review of employee files as DON she saw the
attendance policy written on the employee report of Shelton
raises questions in that Anderson testified that there was a peri-
od of time when the absence policy was written on the employ-
ee report and when that got tedious they went to a typed form.
Anderson forwarded a number of documents, General Coun-
sel’s Exhibit 97, to counsel for the General Counsel the day
after Anderson gave her May 5, 2009 affidavit to the Board.
One of the documents is a copy of Camelot’s typed attendance
policy (GC Exh. 91), which is purportedly signed by Shelton on
“5/8/07.” This raises a question in that if Shelton signed Came-
lot’s typed attendance policy, why would it have been neces-
sary, as Prang testified, to handwrite the absence policy on
Shelton’s employee report. Shelton was not called as a witness

25 Prang’s testimony that she terminated Jackson for violating the at-
tendance policy after Prang gave her May 5, 2009 affidavit, and then
Prang rehired Jackson is entitled to no weight.
by Camelot. It is noted that Anderson testified that the only
employee reports with the absence policy written on them that
she was aware of was one for Rhodes and one for Sieber. Also,
Prang’s and Anderson’s testimony about the same incident
raises questions in that, on the one hand, Prang testified in her
affidavit that “[t]hey [Lerner and Anderson] discussed it out-
side of my presence. They called me back into the office and
we were all in agreement to terminate Kathy Rhodes’ employ-
ment.” (Tr. 620.) On the other hand, Anderson testified that
she, Lerner, and Anderson discussed terminating Rhodes and
there were no further conversations at that time.
Anderson testified that she did not think that anyone was
fired before Rhodes for violating the attendance policy and
other people who had five absences during 2009 were not ter-
minated. Rhodes’ discharge violated the Act. The implementa-
tion of a new attendance policy on March 6, 2009, violated the
Act. And the enforcement of the attendance policy announced
on March 6, 2009, violated the Act. Camelot violated the Act as
alleged in paragraphs 11(e), (f), and (g) and in paragraph 14 of
the May 29, 2009 complaint.
Paragraph 12 of the above-described May 29, 2009 com-
plaint alleges that in about February 2009, Camelot bypassed
the Union and unlawfully dealt directly with its employees in
the Camelot unit by polling employees regarding a change in
insurance carrier. As noted above, Anderson admits, as here
pertinent, that she met with Camelot employees in 2008 for the
purpose of changing their health insurance plan, and Camelot
did not notify the Union of the meeting. Camelot’s direct deal-
ing with its unit employees occurred during a time when the
parties were in negotiations for an initial collective agreement
and, among other things, were negotiating regarding the em-
ployees’ health insurance coverage. By dealing directly with
unit employees and thereby bypassing the Union, Camelot was
undermining the Union’s authority among the employees
whose interests the Union was certified to represent. This was
not the first time that Lerner engaged in conduct in his ongoing
campaign to undermine the authority of the Union among the
employees. Here, Camelot communicated with its represented
employees and the discussion was for the purpose of changing
a term and condition of employment, the health insurance plan.
As Anderson admits, the direct dealing was to the exclusion of
the Union. Respondent argues that the Union waived its right to
negotiate about the change in insurance carrier for Camelot and
Galesburg. This assertion is based on the testimony of Lerner
and Kipp who are not credible. To the extent such assertion
may be based on the July 2007 letter that Anderson claims was
forwarded to Neimark, as noted above, the letter is irrelevant to
the matter at hand, and it is not being given any weight whatso-
ever. The Act was violated as alleged in paragraph 12 of the
May 29, 2009 complaint. By this conduct, Camelot failed and
refused to bargain collectively and in good faith with the exclu-
sive collective-bargaining representative of its employees in
violation of Section 8(a)(1) and (5) of the Act.
Paragraphs 6(a) and (b) of the May 29, 2009 complaint for
the most part, in effect, collectively reiterate other allegations,
in a summary fashion, in the May 29, 2009 complaint. No pur-
pose would be served by reiterating here my findings with re-
spect to those allegations. In my opinion, except for paragraph
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2004
6(b)(i), it is sufficient to find that, in view of the findings made
above, the Act was violated in each and every way alleged in
paragraphs 6(a) and (b) and collectively in 13 and 14 of the
May 29, 2009 complaint. With respect to paragraph 6(b)(i) of
the May 29, 2009 complaint, namely that Respondents restrict-
ed the lengths of bargaining sessions, as pointed out by both
counsel for the General Counsel and the Charging Party on
brief, all of the pertinent bargaining sessions between Decem-
ber 2008 and May 2009 lasted less than the agreed 5 hours. As
pointed out by the Charging Party on brief, (a) between De-
cember 2008 and May 2009 there was not one month when
Respondents satisfied their bargaining obligation regarding
how long the parties would negotiate, and (b) Lerner’s pattern
of delays is even more egregious than that of Celex Corp., 322
NLRB 977 (1997), because Lerner’s violations continued even
after a settlement with the Union and a corresponding promise
to meet regularly and to bargain in good faith. Lerner’s testi-
mony that Neimark always agreed to end sessions early is not
credited. Neimark, who denied this testimony, is a credible
witness. Lerner is not a credible witness. And, as demonstrated
by his testimony about his cancellation on December 10, 2008,
of a bargaining session, Lerner’s claimed understanding of the
meaning of mutual is nothing but self serving. The Act was also
violated as alleged in paragraphs 6(b)(i), 13, and 14 of the May
29, 2009 complaint.
CONCLUSIONS OF LAW
1. By (i) restricting the dates for bargaining sessions; (ii) re-
stricting the lengths of bargaining sessions; (iii) repeatedly
canceling and shortening scheduled bargaining sessions beyond
their unreasonably stated intention not to bargain for more than
4 hours per session; (iv) reneging on or withdrawing from ten-
tative agreements without good cause; (v) refusing to bargain
over economic subjects; and (vi) refusing to make economic
proposals, Camelot and Galesburg collectively have engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
2. By (a) failing and refusing to furnish the Union with (1)
proof that CNAs were properly screened by Galesburg prior to
being hired; (2) employee attendance information for employ-
ees at Galesburg; (3) census information regarding the patient
population at Camelot; and (4) the personnel file of Rhodes
without requiring Rhodes written authorization, (b) without
prior notice to and according the Union the opportunity to bar-
gain with respect to the change of a mandatory subject of bar-
gaining and its effects, unilaterally (1) reducing the hours of
Galesburg’s housekeeping and laundry staff; (2) increasing the
length of the probationary period for certain Galesburg bargain-
ing unit employees; (3) changing the Camelot and Galesburg
employee health insurance carrier; (4) giving incentive raises to
certain Camelot bargaining unit employees; (5) implementing a
new attendance policy at Camelot; (6) more strictly enforcing
the Camelot attendance policy; and (7) discharging Rhodes
pursuant to the new more strictly enforced Camelot attendance
policy, (c) Camelot bypassing the Union and dealing directly
with its employees by polling them regarding a change in in-
surance carrier, and (d) restricting the length of bargaining
sessions, Camelot and Galesburg collectively have engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
In view of these conclusions, the settlement agreements the
Union and the Respondents entered into on December 4, 2008,
will be set aside.
REMEDY
On brief, counsel for the General Counsel contends that all
of the remedies that the General Counsel seeks should be grant-
ed; that although Rhodes has been reinstated, she should be
made whole for any loss of earnings and other benefits suffered
as a result of her discharge; that Respondents should be re-
quired to reimburse the Board and the Union for all costs and
expenses incurred in the investigation, preparation, and conduct
of Cases 33–CA–015780 and 33–CA–015781 before the Board
and the courts; that the Board awards such costs under both
Section 10(c) and its “inherent authority to control Board pro-
ceedings through the bad faith exception to the American
Rule,” Alwin Mfg. Co., 326 NLRB 646, 647 (1998), enfd. 192
F.3d 133 (D.C. Cir. 1999); that Respondents’ violation of the
approved settlement agreements is further evidence of bad
faith, Lake Holiday Manor, 325 NLRB 469, 470 (1998)
(awarding litigation expenses where “this litigation could have
been obviated had Respondent honored either of its settlement
commitments”); that Respondents should reimburse the Union
for its bargaining expenses to date in order to restore the status
quo ante; that the Board orders such reimbursement in bad-faith
bargaining cases where it may fairly be said that a respondent’s
substantial unfair labor practices have infected the core of a
bargaining process to such an extent that their effects cannot be
eliminated by the application of traditional remedies; that Re-
spondents’ tactics directly caused the Union to waste resources
in futile bargaining and, therefore, a reimbursement of those
expenses is warranted in order to restore the status quo ante;
that Respondents should be ordered to bargain on a specific
schedule so as to remedy the delay aspects of Respondents
failure to bargain; that the certificate year should be extended at
Camelot and Galesburg since the Respondents’ unfair labor
practices have disrupted the bargaining relationship, Bryant &
Stratton Business Institute, 321 NLRB 1007, 1007 fn. 5, 1045–
1046 (1996), enfd. 140 F.3d 169 (2d Cir. 1998); and that given
the lack of progress in bargaining due to Respondents’ unlawful
conduct, and its potential impact on employee support for the
Union, an additional extension of 6 months at Galesburg and an
additional extension of 9 months at Camelot are necessary to
restore the parties to status quo ante. D. J. Electrical Contract-
ing, 303 NLRB 820, 820 fn. 2 (1991), enfd. mem. 983 F.2d
1066 (6th Cir. 1993) (Board ordered complete renewal of certi-
fication year because bargaining “never had a chance to get
seriously and fairly underway” due to employer’s refusal to
provide relevant information).
Respondents on brief argue that they are not being willfully
defiant; that in the instant case there are no flagrant, aggravat-
ed, persistent, and pervasive unfair labor practices; that Re-
spondents’ “intent to follow the law is clearly seen by . . .
[their] negotiating every week for five hours” (R. Br., un-
marked p. 21); that Rhodes was rehired and the attendance
policy was not enforced; that all the documents requested were
CAMELOT TERRACE

2005
given; that the housekeeping hours were restored; that the pro-
bationary periods were decreased; that Respondents’ defenses
are not frivolous, as they clearly show Respondents’ good in-
tentions to follow the Act; that Respondents have “no interest
other than amicably and legally working with the union towards
a contract[s] . . . [Respondents] simply want . . . to do the right
thing. [Respondents] . . . shouldn’t be punished for that” (Id.);
and that if the financial penalties sought by the General Coun-
sel are imposed, it “would bankrupt these facilities, and put its
[sic] residents on the street.” (Id.)
As noted, Respondents argue on brief that their “intent to fol-
low the law is clearly seen by their negotiating every week for
five hours.” (Id.) With respect to the two settlement agreements
involved here, first there was no other schedule mutually
agreed to by the parties. Consequently, the applicable bargain-
ing schedule is the one specifically set forth in the two settle-
ment agreements. Second, Lerner, on many occasions, made it
clear to the Union that the parties were not bargaining for one
contract or the same contracts for both facilities. That being the
case, the applicable language in the two settlement agreements
called for “bargaining shall be held totaling not less than twenty
(20) hours per month, per facility, at least five (5) hours per
session. . . .” (Emphasis added.) As can be seen from the sum-
mary of the record set forth above, Respondents did not bargain
for 20 hours per month and at least 5 hours per session for even
one of the involved facilities let alone the two involved facili-
ties. Not only did Respondents engage in flagrant, aggravated,
persistent, and pervasive unfair labor practices, but if, in addi-
tion to avoiding unfair labor practices, Lerner had acted in ac-
cord with the bargaining schedule in the two settlement agree-
ments he willingly entered into, the second session of this liti-
gation would not have been necessary. As the Board pointed
out in Lake Holiday Manor, 325 NLRB 469, 470 (1998), such
conduct can and should be redressed.
Upon request by the Union, and to the extent sought by the
Union, Respondents shall rescind the changes in terms and
conditions described above, restore the status quo ante, and
make employees whole for any loss of wages or benefits suf-
fered by them as a result of the above-described changes.
As requested by the General Counsel, with a modification,
Respondents shall do the following:

WHEREFORE, as part of the remedy for the unfair labor
practices alleged . . . in Cases 33–CA–15780 and 33–CA–
15781, the General Counsel seeks an Order requiring that
Respondent Camelot Terrace promptly reinstate Kathy
Rhodes to her former position. The General Counsel also
requests that Respondent Camelot Terrace be ordered to
make Kathy Rhodes whole for any loss of earnings, and
other benefits, suffered as a result of her discharge until
such time as she is reinstated.
WHEREFORE, as part of the remedy for the unfair labor
practices alleged . . . in Cases 33–CA–15780 and 33–CA–
15781, the General Counsel seeks an Order requiring Re-
spondents to reimburse the Board and the Union for all
costs and expenses incurred in the investigation, prepara-
tion, and conduct of Cases 33–CA–15780 and 33–CA–
15781 before the National Labor Relations Board and the
courts.
WHEREFORE, as part of the remedy for the unfair labor
practices alleged . . . in Cases 33–CA–15780 and 33–CA–
15781, and as previously alleged in Cases 33–CA–15584,
33–CA–15587, 33–CA–15669, and 33–CA–15670, the
General Counsel seeks an Order requiring Respondents to
reimburse the Union for all costs and expenses incurred in
collective-bargaining negotiations from January 2008 to
the last bargaining session.
WHEREFORE, as part of the remedy for the unfair labor
practices alleged . . . in Cases 33–CA–15780 and 33–CA–
15781, and as previously alleged in Cases 33–CA–15584,
33–CA–15587, 33–CA–15669, and 33–CA–15670, the
General Counsel seeks an Order requiring Respondents to
bargain in good faith with the Union not less than 24 hours
per month, at least 6 hours per session for each facility or,
in the alternative, 24 hours per month, at least 6 hours per
session for the same contract(s) for both facilities, or an-
other schedule mutually agreed upon by the parties, until a
complete collective-bargaining agreement or a bona fide
impasse is reached.
WHEREFORE, as part of the remedy for the unfair labor
practices alleged . . . in Cases 33–CA–15780 and 33–CA–
15781, and as previously alleged in Cases 33–CA–15584,
33–CA–15587, 33–CA–15669, and 33–CA–15670, the
General Counsel seeks an Order requiring Respondents to
bargain in good faith with the Union, on request, for the
period required by Mar-Jac Poultry, 136 NLRB 785
(1962), as the recognized bargaining representative in the
appropriate units. Specifically, the General Counsel seeks
an Order extending the Union’s certification year for an
additional 6 months at Respondent Galesburg Terrace and
for an additional 9 months at Respondent Camelot Ter-
race.
[Recommended Order omitted from publication.]