Good Shepherd Manor, Inc

National Labor Relations Board - Administrative Judge Opinions

Oct 23, 2017

25-CA-191404 (N.L.R.B. Oct. 23, 2017)

JD–88–17
Bradley, Illinois
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
GOOD SHEPHERD MANOR, INC.
and Cases 25-CA-191404
25-CA-194176
AMERICAN FEDERATION OF STATE, 25-CA-198163
COUNTY AND MUNICIPAL EMPLOYEES
(AFSCME). COUNCIL 31 AFL-CIO
Derek A. Johnson, Esq., for the General Counsel
Joseph H. Laverty, Esq. (Wessels Sherman Joerg Liszka
Laverty Seneczko), Davenport, Iowa, for the Respondent
Gail E. Mrozowski, Esq. (Cornfeld and Feldman),
Chicago, Illinois, for the Charging Party
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Bradley,
Illinois on September 5, 2017. The American Federation of State County and Municipal
Employees (AFSCME). Council 31 AFL-CIO (the Union or Charging Party) alleges that Good
Shepherd Manor, Inc. (Good Shepherd or Respondent) violated Section 8(a)(5) and (1) of the
National Labor Relations Act (the Act)1 in July 2016 by unilaterally: (1) withholding merit-based
wage increases from bargaining unit employees; and (2) changing the duties and pay of
bargaining unit employees. It is further alleged that Good Shepherd undertook such actions
without prior notice to the Union and affording it an opportunity to bargain to a good-faith
impasse for a collective-bargaining agreement. Finally, the complaint alleges that, since
February 27, 2017, Good Shepherd has failed and refused to bargain collectively and in good
faith with the Union. Good Shepherd denies the allegations, alleges the charges were untimely
filed, and avers that the issue of merit-based wage increases was deferred to the pending
collective-bargaining process. Additionally, Good Shepherd concedes that it cancelled a
bargaining session scheduled for February 28, but contends that it did so for a legitimate reason
and subsequently met with the Union for bargaining on several occasions.

1 29 U.S.C. §§ 151-169.
JD–88–17
2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Good Shepherd and the Union, I make
the following
FINDINGS OF FACT5
I. JURISDICTION
Good Shepherd, a not-for-profit corporation with an office and place of business in
Momence, Illinois, has been engaged in providing services for adults with intellectual and 10
developmental disabilities. In conducting its operations on an annual basis, Good Shepherd
derives gross revenues in excess of $500,000, and purchases and receives goods valued in excess
of $50,000 directly from points outside the State of Illinois. Good Shepherd admits, and I find,
that it is an employer 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. 15
II. ALLEGED UNFAIR LABOR PRACTICES
A. Good Shepherd’s Operations
20
Good Shepherd operates a residential training facility for approximately 120 male
residents with intellectual and developmental disabilities in Momence, Illinois. It encompasses
14 group homes and employs approximately 145 employees. Approximately 80 employees are
employed as Care Workers, also known as direct service providers or by position number 811.
These positions are supervised by Qualified Intellectual Development Professionals (QSP/RSD). 25
They report to the Residential Service Director, Kristen Stockle.
Good Shepherd policies and practices are approved by its Board of Directors, which has
delegated authority to an Executive Committee comprised of several Board of Directors
members and managers, including Bruce Fitzpatrick, the organization’s president. John Combs 30
served as human resources director at all relevant times until February 14, 2017.
B. The Parties’ Collective-Bargaining History
On November 30, 2015, the National Labor Relations Board (the Board) certified the 35
Union as the exclusive collective-bargaining agent for the purposes of collective bargaining on
behalf of approximately 120 Good Shepherd employees within the meaning of Section 9(a) of
the Act (the Unit):
All full-time and regular part-time regular part-time non-professional employees 40
including careworkers, instructors, trainers, infirmary technicians, receptionists, custodial
service workers, maintenance employees, administrative support staff, assistant program
directors, assistant supervisors, food service workers, secretaries, licensed practical
nurses and transport staff employed by the Employer at its facility located at 4129 N. Rt.
1-17, Momence, IL 60954, but excluding all professional employees, managerial 45
employees, and guards and supervisors as defined by the Act.
JD–88–17
3
Richard Wessels, Good Shepherd’s labor representative, initially met with David Dorn,
the Union’s representative, on February 2, 2016. The parties began negotiations for a first
collective bargaining agreement on April 26. During the first collective-bargaining meeting, the
Union proposed to start negotiations over non-economic issues. While the parties failed to agree
on that procedure, they met for eight more bargaining sessions in 2016. 5
On January 11, 2017, James Mazzuchi, a Unit employee, filed an RD petition with the
Board in Case 25-RD-191100 seeking an election on the ground that the Union had lost majority
status. 2 The Union responded one week later by filed a charge alleging the commission of
several unfair labor practice charges by Good Shepherd in Case 25-CA-191404. The charge also 10
sought to block the requested election from being held.3
The parties held a bargaining session on February 6, 2017 and scheduled another
bargaining session for February 28. On February 27, however, Good Shepherd injected itself
into the Union’s controversy with Mazzuchi by filing an RM petition with the Board, Case 25-15
RM-193811, alleging there existed “a good faith uncertainty about majority support for an
existing representative” and requesting that the Board proceed to order the requested election.4
On the same day, Wessels emailed Dorn cancelling the bargaining session scheduled for
February 28 on the ground that:
20
Good Shepherd has objective evidence demonstrating that [the Union] no longer has
majority support and we have filed an RM Petition this morning. We intend to work with
the NLRB to get an election scheduled as soon as possible so that issue can be resolved.
Understand that Good Shepherd is not withdrawing recognition, but postponing the
meeting with the objective of resolving the question of majority status as soon as 25
possible. We are suggesting an election date of March 15.5
About an hour later, Wessels supplemented that communication by attaching an
annotated draft agreement that he prepared for the cancelled meeting on February 28. He
suggested Dorn distribute the draft for consideration while also urging Dorn to “move forward 30
expeditiously to resolve the question of majority status through the NLRB secret ballot election
process.” Dorn protested that decision shortly thereafter, insisting that the Union was ready to
meet and rejecting Wessel’s rationale for cancelling the meeting. He warned that the unilateral
cancellation would be tantamount to “a refusal to bargain in violation of the Act.” Wessels
responded a few minutes later, reiterating his earlier position.6 35
After researching the legal issues relating to the RM and RD petitions, Wessels
concluded by February 28 that it would not be proper to withdraw recognition of the Union. He
did not, however, communicate that to the Union.7 Over the course of the next two months, the

2 R. Exh. 17 at 23-24.
3 GC Exh. 1(a).
4 R. Exh. 18.
5 R. Exh. 19.
6 R. Exh. 20-21; GC Exh. 11.
7 I credit Wessels testimony that he needed time to research the issues relating to the competing
petitions, but he figured it out by February 28. His subsequent email confirms that he delayed bargaining
for more than two months in an attempt to force the Union into an election. (Tr. 178-185.)
JD–88–17
4
Union amended the blocking charge in Case 25-CA-191404 and filed additional blocking
charges in Cases 25-CA-194176 and 25-CA-198163. Portions of the charges in Cases 25-CA-
191404 and 25-CA-194176 were ultimately dismissed and related appeals denied.
On April 24, Dorn responded to Fitzpatrick’s email stating Good Shepherd’s “desire to 5
implement a shift premium of $1/hour for all staff on duty between the hours of 12 a.m. and 8
a.m.” He expressed the Union’s agreement with the changes, but suggested they did not go far
enough and urged Good Shepherd to resume bargaining to negotiate over issues relating to
wages, the disciplinary process and worker safety.8 Wessels responded on April 27:
10
At the conclusion of your letter you asked when [Good Shepherd] is available to resume
negotiations. [Good Shepherd] postponed the February 28 meeting after the RM petition
was filed and urged that the question of majority status be resolved by an NLRB secret
ballot election, which [Good Shepherd] suggested be held on March 15th. This issues
would have been resolved long ago if the parties had moved ahead with the expedited 15
election. We indicated back at that time that we were not withdrawing recognition, only
postponing that one meeting. We stand ready to meet. If you wish to meet, please contact
me and we will work out a mutually satisfactory date. Thank you.9
Bargaining resumed on May 25, and the parties have met for on several occasions since 20
that time.10
C. Deferral of Merit Raises to Collective-Bargaining
Good Shepherd’s fiscal year runs from July 1 to June 30. In fiscal years 2002, the State 25
of Illinois passed a budget that specifically provided for a $1.00 per hour wage increase for most
employees at Good Shepherd who held positions which are now in the Unit. In that year, Good
Shepherd did not give any merit-based wage increases. Good Shepherd also did not give any
merit-based wage increases in fiscal years 2003 and 2005, the latter attributed specifically to a
lack of State funding. With the exception of fiscal year 2015, the aforementioned employees 30
have received merit-based wage increases of 1% or more on their anniversary dates from fiscal
years 2006 through 2016. Later during the 2015 fiscal year, however, the Illinois legislature
granted additional funding and the Board of Directors provided employees with a 1.5% annual
increase in December 2014.11
35
On February 12, 2016, prior to the parties’ first bargaining session, Fitzpatrick confirmed
a continuation of Good Shepherd’s practice of awarding annual merit-based wage increase in an
email to Dorn:
First, prior to the election, Good Shepherd Manor was providing on average, a 1% merit 40
increase to employees at the time of their anniversary. This was a Board approved budget

8 GC Exh. 12.
9 GC Exh. 13.
10 R. Exh. 16.
11 The historical chart showing increases since 2001 omitted fiscal years 2003-2004 to 2009-2010, but
the parties stipulated that they all reflected annual wage increases of at least 1% (R. Exh. 9; Tr. 10.)
JD–88–17
5
allocation for fiscal year 2016. It is our intention to continue this practice through fiscal
2016.
Secondly, in an effort to recognize and appreciate staff who are working extra hours in
the group homes to cover vacancies and absences, we are planning a weekly drawing. 5
The plan is to enter the name of every staff member who works extra hours into a
drawing for a chance to win one of two $50.00 cash gift cards. The details of this
program are attached. I plan to announce this new program on Thursday 2/18. Please let
me know if you have any concerns about this program, otherwise we will proceed as
planned.12 10
On June 2, Good Shepherd’s Executive Committee Minutes stated, in pertinent part, the
Board of Directors determination that “the FY17 budget should not reflect any wage increase
since this will be deferred to the collective bargaining process.13 Fitzpatrick informed staff of the
Board of Directors’ decision to defer merit wage increases on June 16 and the change was 15
implemented in conjunction with unit members’ performance evaluations that followed. He did
not, however, inform Dorn or any other Union representative of that decision. At some point
prior to the bargaining session of September 14, however, Dorn was informed by another Union
representative that a Unit employee reported that he/she did not receive the customary merit
wage increase for FY 2017. Dorn then raised that concern at the beginning of bargaining on 20
September 14, asking if Unit employees were not getting raises because of the Union. Dorn
asked if Combs knew anything about that and, if so, the remarks should stop. Combs professed
ignorance about any such rumors.14
In the written personnel evaluations that followed, Combs or Fitzpatrick conveyed the 25
decision to defer wage increases in the “recommended merit wage increase section” in various
ways: “Not applicable - To be determined by collective bargaining” or “No change” or “0% due
to negotiations” or “Increases deferred to collective bargaining process” or “No increase during
this evaluation period” or “Not at this time due to collective bargaining” or “O due to contract
negotiations” or “Not applicable at this time, union negotiated” or “no merit increase due to 30
collective bargaining.”15 Good Shepherd did, however, give a 1% raise to all non-bargaining unit
employees.
On January 9, 2017, Dorn emailed Combs requesting that Good Shepherd “continue its
practice of providing wage increases to bargaining unit employees.” He also shared his 35
understanding that wage increases were being withheld “due to union negotiations” and warned
that the failure to restore the pre-existing practice of providing wage increases would violate the
status quo. Combs responded the same day, attaching Fitzpatrick’s February 12, 2016 letter
regarding a continuation of the 2016 fiscal year increases. However, with respect to fiscal year
2017, “the Board decided to leave the increases up to the collective bargaining process.”16 On 40

12 GC Exh. 2.
13 GC Exh. 3; R. Exh. 12 at 1.
14 Dorn’s credible and undisputed testimony as to the initial source of the information was premised
on double hearsay, but I overruled that objection because there was ample corroboration for the rumored
deferred wage increase at that point. (Tr. 52-55.)
15 R. Exh. 12-13; GC Exh. 4.
16 GC Exh. 9-10; R. Exh. 11.
JD–88–17
6
January 18, the Union filed the aforementioned charge alleging, in pertinent part, that Good
Shepherd “unilaterally withheld wage increases from bargaining unit members for the stated
reason of union negotiations.”
On June 1, Fitzpatrick emailed Dorn that Good Shepherd was also considering foregoing 5
merit-based wage increases for FY 2018 (July 1, 2017—June 30, 2018) “unless we receive an
increase in funding from the state; as was the case last year (fiscal 2017).”17 On June 7, the
Board of Directors adopted the budget for FY 2018, again omitting merit-wage increases, based
on the Finance Committee’s recommendation “that merit pay increases . . . not be provided this
year unless we receive an increase in funding from the state, as was the case last year.1810
The following month, the Illinois legislature enacted a budget appropriating a $.75 per
hour wage increase for Unit employees. That appropriation was implemented and passed
through to Unit employees beginning with the September 29 payroll checks, retroactive to
August 1, just as was the case in 2002. Good Shepherd continued, however, to defer Unit 15
employees’ merit increases into the 2018 fiscal year, while paying them to non-Unit employees.
D. Creation of Mentor Positions
The basic care worker position at Good Shepherd is referred to as the “811 position.” 20
That refers to the job description # 811entitled, “Care Worker – Care Worker, Flexi.” The
position includes various responsibilities relating to the supervision and care of Good Shepherd’s
residents, including hygiene care, providing meals and administering medication. 811 care
workers are required to rotate shifts and perform “job related duties as assigned by the
QSP/RSD.” These duties include but are not limited to: detailed home care; filing of resident 25
records in the home; medical trips, airport trips, or other outings; assisting in Day Program
services; and providing increased resident supervision.19
Prior to the Union’s certification as Unit employees’ labor representative, Good Shepherd
had a history of adjusting the Care Worker #811 position. The most recent change was in 2009, 30
when Good Shepherd created the Care Worker, Infirmary Technician #811E position, which
entailed the responsibilities of a Care Worker #811but primarily assigned the employee to
infirmary duties. Unlike some of the previous adjustments to the 811 position, the 811E position
was not accompanied by a wage rate increase.20
35
On November 18, 2016, without consulting with the Union, Fitzpatrick created the new
position of Care Worker, Mentor, # 811F, and reclassified 6 care workers into that position:
Tracy Jackson, Brittany Ryan, Latrice Ross, Keith Cross, Algena Flournoy and Candace
Chapman. These employees were to “receive a $0.25 hourly pay increase for their increased
responsibilities, which required them to train new employees in caring for residents and provide 40
supervisors with performance information. Their payroll change forms indicated that each was
“receiving a temporary promotional pay increase of an additional $.25 per hour . . . for

17 R. Exh. 11 at 4.
18 R. Exh. 12 at 3.
19 GC Exh. 5; R. Exh. 2.
20 R. Exh. 3-7.
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7
assignment of duties and responsibilities associated with the new Mentorship program. Mentors
will assist newly hired caseworkers in learning the skills of their position. The Mentorship is a
pilot program that is to be evaluated in 6 months (May 2017).” (emphasis in original)21
After Dorn was informed about the change by a Unit employee, the Union filed a charge 5
on May 5, 2017 in Case 25-CA-198163 alleging that Good Shepherd failed to bargain in good
faith in violation of Section 8(a)(5) by unilaterally changing work assignments, removing unit
work and increasing pay rates on November 15 and December 2016.22 The Union amended that
charge on June 29, alleging that “[s]ince on or about November 2016, [Good Shepherd]
unilaterally assigned additional training duties and increased the wages of bargaining unit 10
members without notice or bargaining with the Union.”
LEGAL ANALYSIS
I. CANCELLATION OF FEBRUARY 28TH BARGAINING SESSION15
Section 8(a)(5) of the Act requires that employers bargain with collective-bargaining
representatives. Section 8(d) of the Act highlights that duty as a “mutual obligation of the
employer and the representative of the employee to meet at reasonable times and confer in good
faith ….”23 The determination of whether parties engaged in good faith bargaining is analyzed 20
under the totality of circumstances. Regency Serv. Carts, Inc., 345 NLRB 671, 671 (2005) (citing
Pub. Serv. Co. of Okla., 334 NLRB 487, 487 (2001), enfd., 318 F.3d 1173 (10th Cir. 2003) (the
Board examines the totality of the party’s conduct, both away and at the bargaining table, when
looking to its obligation to bargain in good faith); Atlanta Hilton & Tower, 271 NLRB 1600,
1603 (1984) (the Board looks to the employer’s overall conduct to determine good faith 25
bargaining). The Act imposes an obligation to meet at reasonable times and places. St. Louis
Comprehensive Neighborhood Health Center, 248 NLRB 1078, 1082 (1980). The Board in
Atlanta Hilton & Tower listed several actions that indicate a lack of good faith bargaining, such
as delay tactics, unreasonable bargaining demands, unilateral changes to mandatory subjects of
bargaining and efforts to bypass the union, among others. Atlanta Hilton, 271 NLRB at 1603 30
(citations omitted).
Under the totality of circumstances underlying the cancellation of the February 28
meeting, and considered in conjunction with Good Shepherd’s subsequent unilateral changes, it
is clear that Good Shepherd refused to bargain in good faith. Good Shepherd alleges that it was 35
under a good faith uncertainty about the Union’s majority support and notified Dorn of this
circumstance. It further notified Dorn that Good Shepherd was not withdrawing recognition, but
merely postponing the meeting dates.
An employer is certainly allowed to insist on an election as long as there remain doubts in 40
good faith that a majority of the employees have selected the union as their bargaining
representatives. Aaron Bros. Co. of California, 158 NLRB 1077, 1078 (1956). Wessel realized

21 GC Exh. 6-8; R. Exh. 1-2.
22 Dorn’s testimony as to when he first learned about the new mentor position was credible and
unrefuted. (Tr. 63-64.)
23 29 USC §158(d).
JD–88–17
8
by February 28, however, that there existed no legitimate basis for delaying bargaining based on
the competing RD and RM petitions. Rather than share that information, he chose to ride out
another two months in an effort to pressure the Union into an election. Only after the Union
requested a return to the bargaining table did Good Shepherd acquiesce. Under the
circumstances, Good Shepherd violated its duty to bargain in good-faith by engaging in dilatory 5
foot-dragging with the stated goal of forcing the union into an election.
II. WITHHOLDING OF ANNUAL MERIT-BASED WAGE INCREASE
The General Counsel and Union allege that Good Shepherd violated Section 8(a)(5) and 10
(1) of the Act by withholding customary merit-based merit-wage increases from Unit employees
without going through the collective bargaining procedure or to good faith impasse. Good
Shepherd denies these allegations and insists that the decision to provide an increase lies within
the proper discretion of its Board of Directors.
15
An employer violates Section 8(a)(5) and (1) of the Act by making unilateral changes
during the course of the bargaining relationship on mandatory subjects of bargaining, because
bypassing the duty to negotiate impedes the objectives of Section 8(a)(5). NLRB v. Katz, 369
U.S. 736 (1962) (a unilateral change in the conditions of employment is a violation of the Act
because it circumvents the duty to negotiate, thereby impeding the objective of Section 8(a)(5).).20
The mandatory subjects of bargaining which an employer and union must negotiate are those that
fall within Section 8(d) of the Act. NLRB v. Borg-Warner Corp., 356 U.S. 342, 349 (1958).
These subjects are varied and span a wide spectrum.
In evaluating a discontinuance of a merit-based wage increase, the Board looks to 25
whether there is a “pattern and practice” in place. WAPA-TV, 317 NLRB 1159, 1160 (1995),
enfd. 82 F.3d 511 (1st Cir. 1996). Cf. American Mirror Co., 269 NLRB 1091 (1984)
(withholding raises did not constitute a unilateral change since raises were given at “random
irregular intervals”); U.S Postal Service, 261 NLRB 505 (1982) (accord). In WAPA-TV the Board
affirmed a violation of the Act for a failure of an employer to stop giving merit based increases 30
after having done so for the last eighteen years. Though the size of the increase varied, as here,
the practice continued unabated. WAPA-TV, 317 NLRB at 1159. The idea guiding this decision is
that “[w]henever the employer by promises or by course of conduct has made a particular benefit
part of the established wage or compensation system, then he is not at liberty unilaterally to
change this benefit either for better or worse during…. the period of collective bargaining” Daily 35
News of Los Angeles, 315 NLRB 1236, 1238 (1994) (Citation omitted).
Good Shepherd argues that the wage increase lay within its own discretionary ambit,
were not automatic, and the practice of giving merit-based increases was non-uniform. It is
undisputed, however, that Good Shepherd had an established practice of granting employees 40
merit-wage increases of at least 1% during nearly all fiscal years between 2004 and to 2016.
There were exceptions in a few years due to the lack of State funding, but those instances hardly
transform the practice into one that was irregular. After the certification of the Union in
November of 2016, Good Shepherd maintained this practice for fiscal year 2016 but
discontinued it for the 2017 fiscal year for only Unit employees, specifically deferring merit-45
wage increases to the collective-bargaining process.
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Good Shepherd further notes that in the fiscal year 2015 the employees did not receive a
merit based increase, but rather there was a general 1.5% wage increase for all employees. It
further highlights two important points: (1) there were discretionary budgetary issues that it was
dealing with during that time limiting its ability to provide the wage increases; and (2) by Illinois
law, bargaining unit employees were already slated to receive a $.75 per hour wage increase 5
pursuant to the state budget. The state budget-based increase was similar to fiscal year 2002,
which then led to Good Shepherd skipping its practice of increases in 2002 and 2003. The
circumstances in those prior years was distinguishable from Good Shepherd’s decision to defer
merit-wage increases for only Unit employees in fiscal years 2017 and 2018 – the withholding of
increases was not based on the availability of funding, but rather, the arrival of the Union. 10
Good Shepherd’s argument that it properly deferred the question of wage increases to the
collective bargaining process by notifying the Union of its intention also fails. A notice does not
obviate the duty to maintain the status quo of wage increases and consult with the Union before
making unilateral changes. In American Packaging Corp., 311 NLRB 482 (1993), the Board 15
found that an employer’s failure to pay the usual bonuses, after a determination of its budgetary
needs, and in consultation with the union, was not a violation of the Act because the employer
did not permanently discontinue the program. See also Stone Container Corp., 313 NLRB 336
(1993) (no violation where the union consulted with the employer about temporarily forgoing
wage increases due to economic reasons). In the present case, the key predicate of union 20
consultation is missing because the decision to withhold the increase did not come in concert
with union representatives. It was an independent decision that Good Shepherd made alone.
There is also no credible evidence for the notion that Good Shepherd used an existing
process to determine whether merit-based wage increases should be granted. The Board 25
endorsed the utilization by employers of their regular process in American Packaging and Stone
Container in Daily News of Los Angeles, emphasizing in both cases that the employers applied
preexisting system for granting raises and determined after applying their processes that
increases were not feasible. Daily News of Los Angeles, 315 NLRB 1236, 1240 (1994). As
previously noted, the only process customarily relied upon by Good Shepherd was one that 30
determined the availability of funding for the raises upon the completion of employees’
performance evaluations. As previously noted, Good Shepherd deviated from that regular
process for fiscal years 2017 and 2018 because of the Union.
In sum, three important factors derail Good Shepherd’s discretionary argument: first, 35
Good Shepherd failed to consult the Union on its change; second, merit-based increases occurred
at a fairly regular interval for a period of 13 years,24 and third, employees had an expectation that
they would be evaluated according to the merit-based process. See Auto Workers (Udylite Corp.
v. NLRB, 455 F.2d 1357 (1971), enfg. 183 NLRB 163 (1970) (discontinuance of the annual
policy of merit-based wage increases, after union certification violated the Act because the 40
employees had an expectation of evaluation and consultation with Union prior to suspension). In
the face of an established practice that was fixed, but discretionary as to the amount, Good

24 As Fitzpatrick noted in his email on February 12, “It is our intention to continue this practice
through fiscal 2016.” GC Exh. 2. This indicates that the practice in place was one of providing merit-
based increases and further indicates that this was not an irregular occurrence.
JD–88–17
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Shepherd violated section 8(a)(5) and (1) by unilaterally withholding the annual merit-wage
increases from Unit employees without first consulting with the Union.
III. CHANGE TO CARE WORKER DUTIES
5
The complaint alleges that Good Shepherd unilaterally modified the 811 Care Worker
position by adding mentoring responsibilities and failed to afford the Union an opportunity to
bargain. Good Shepherd maintains that it has a long standing past practice of modifying that
position. It also claims that the Care Worker/Mentor position is temporary, the 6 employees
continue to perform the function of Care Workers and simply receive a $.25 per hour wage 10
increase.
Where a unilateral change in the terms or conditions of employment is material,
substantial, and significant, such a change constitutes a violation of Section 8(a)(5) of the act.
Alamo Cement Company, 277 NLRB 1031 (1985) (finding that a change in classification where 15
the employee performed essentially the same function as before the change in classification was
not a substantial, material, and significant change); Angelica Healthcare Services Group, 284
NLRB 844, 853 (1987) (noting that there is a statutory bargaining obligation where the unilateral
change affecting the terms and conditions of employment of bargaining unit employees is
material, substantial and significant). Not every unilateral change however constitutes a violation 20
of the bargaining obligation. Compare J.W. Ferguson & Sons, 299 NLRB 882, 892 (1990)
(finding that the change was not material, substantial, and significant where the employer
increased the lunch break by five minutes and decreased the afternoon break by five minutes;
Weather Tec Corp., 238 NLRB 1535 (1978) (finding the employer’s decision to end paying for
coffee supplies that employees used was not a material, substantial and significant change) with 25
The Bohemian Club & Unite Here! Local 2, 351 NLRB 1065, 1066 (2007) (finding changes to
cleaning duties material, substantial, and significant because cooks had to work an extra 30
minutes to accomplish new tasks, and involved new tasks such as wiping down walls, counters,
refrigerator doors, and sweeping the floor) and Salem Hosp. Corp., 360 NLRB 768, 769 (2014)
(finding a change in the dress code policy a material, substantial, and significant change to the 30
terms and conditions of employment because the policy change had a significant financial impact
on employees since it rendered their old uniforms useless.). Good Shepherd’s change included
changes to the duties of the workers, including a training and mentorship role, and a wage
increase of $0.25 per hour. Thus, the issue here is to determine whether the added responsibilities
and the wage increase are a material, substantial and significant enough change to the Unit 35
employees’ terms and condition of employment.25
When the change is simply one in the employee’s title classification without a substantial
change in duties and a slight increase in the hourly wage, that change does not constitute a
material, substantial and significant change in the terms or conditions of employment. Alamo 40
Cement Co., 277 NLRB 1031 (1985). Here, Good Shepherd changed the duties of six Care
Workers by adding mentoring responsibilities that had supervisory characteristics. They were to
train new employees, report on their performance to supervisors, and receive a $.25 hourly pay
increase. These were all material and substantial changes to the Care Workers duties and pay.

25 Good Shepherd argues that it had an established past practice of changing the duties. That fact
ignores the fact that the Union was not Unit employees’ certified representative at those times.
JD–88–17
11
Under the circumstances, Good Shepherd also violated Section 8(a)(5) and (1) of the Act
by unilaterally modifying the duties and pay of its employees.
IV. STATUTE OF LIMITATION DEFENSE 5
Good Shepherd’s statute of limitation defense also fails. It argues that the Union failed to
file the unfair labor practice charge within the statute of limitation period pursuant to Section
10(b) of the Act. The limitation period for an unfair labor practice charge is 6-months, and the
burden of proof lies with the party raising the defense. CAB Assocs., 340 NLRB 1391, 1403 10
(2003). The time period begins to toll when the charging party makes a “clear and unequivocal”
notice of the unfair labor practice. Id. at 1403. The notice may be either actual or constructive.
Id. at 1391.
Good Shepherd contends that the period began to toll on June 16, 2016, when during a 15
staff meeting Fitzpatrick notified employees, including bargaining unit employees who were
present, that Good Shepherd did not plan to budget for wage increase since this will be
determined through a collective bargaining process. It further argues that since the applicable
charge was filed on January 18, 2017, it falls outside of the 6-month statutory period and the
unfair labor practice claim should be time barred. 20
The period under the statute of limitation begins when a party has “clear and
unequivocal” notice of the violation and the party raising the defense has to prove that the filing
party had actual knowledge or constructive knowledge of the unfair labor practice more than 6
months before the charge was filed. See M & M Auto. Grp., Inc., 342 NLRB 1244, 1246 (2004) 25
(concluding that the Union lacked actual or constructive knowledge because there was no
evidence that Union knew of changes, it was not informed by the Respondents of the changes,
even though the Respondent was bargaining over wages and promotions while making the
changes). Knowledge on the part of the Unit employees can only be imputed where the conduct
in question was sufficiently “open and obvious” to provide clear notice or whether the filing 30
party would have discovered the conduct with reasonable or due diligence. Id. Even where an
employee in the bargaining unit was aware of the changes, the Board did not consider this
knowledge in and of itself sufficient to impose a due diligence requirement on the Union to
investigate changes in working conditions or wage increases. Id. at 1247.
35
Although Good Shepherd told the employees of the decision to cease the wage increase
on June 16, there is no credible evidence establishing that Dorn or another Union representative
knew of the change at that time or shortly thereafter. The evidence only established that Dorn
learned of the deferred wage increase at some point prior to the September 14 bargaining session
when he raised the issue and Combs denied any knowledge of the change to Good Shepherd’s 40
customary annual practice of awarding merit increases. See also NLRB v. Pub. Serv. Elec. & Gas
Co., 157 F.3d 222, 228 (3d Cir. 1998) (stating that the statute of limitation period is not a bar to
the claim when the delay in filing is a result of ambiguous conduct of another party). The fact
that Combs professed ignorance on such a matter also suggests that such changes were not open
and obvious enough.45
JD–88–17
12
Accordingly, Good Shepherd failed to meet its burden of establishing that the Union had
either actual or constructive knowledge of the unilateral wage increase nor the changes to the
duties of the bargaining unit employees more than six months prior to the changes.
CONCLUSIONS OF LAW5
1. Good Shepherd Manor, Inc. (Respondent) is an employer engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act.
2. The American Federation of State County and Municipal Employees (AFSCME) 10
Council 31 AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally and without
first bargaining with the Union to impasse when it: (a) changed the terms and conditions of
employment of bargaining unit employees by ending its practice of providing employees with at 15
least 1% annual merit wage increases on July 1, 2016 for fiscal year 2017 and again on July 1,
2017 for fiscal year 2018; and changed the terms and conditions of employment of bargaining
unit employees on November 18, 2016 by implementing a new care worker mentor program and
paying affected employees an hourly wage increase of 25 cents for assuming those duties.
20
4. The Respondent violated Section 8(a)(5) and (1) of the Act when it failed and refused
to bargain in good faith with the Union on February 28, 2017.
5. The aforementioned unfair labor practices by the Respondent affected commerce
within the meaning of Section 2(6) and (7) of the Act.25
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate 30
the policies of the Act.
Specifically, having found that the Respondent unlawfully withheld customary annual
merit wage increases for fiscal years 2017 and 2018, I shall order the Respondent to make Unit
employees whole for any loss of earnings and other benefits suffered as a result of the withheld 35
increases. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In
addition, we shall order the Respondent to compensate its Unit employees for the adverse tax
consequences, if any, of receiving a lump-sum backpay award, and to file with the Regional 40
Director for Region 25, within 21 days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay award to the appropriate calendar
years. See AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016).
JD–88–17
13
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended26
ORDER
5
The Respondent, Good Shepherd Manor, Inc. Momence, Illinois, its officers, agents,
successors, and assigns, shall
1. Cease and desist from:
10
(a) Unilaterally and without bargaining with the Union to impasse eliminating the
practice of providing employees with an at least 1% annual merit wage increase, or
otherwise changing employees’ terms and conditions of employment without first giving
the Union notice and an opportunity to bargain.
15
(b) Unilaterally and without bargaining with the Union to impasse implementing a new
care worker mentor program and paying affected employees a wage increase, or otherwise
changing employees’ terms and conditions of employment without first giving the Union
notice and an opportunity to bargain.
20
(c) Failing and refusing to bargain on request with the Union as the exclusive collective-
bargaining representative of the unit employees.
(d) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.25
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) On request, bargain with the American Federation of State, County and Municipal
Employees (AFSCME), Council 31, AFL-CIO, as the exclusive collective-bargaining30
representative of employees in the following unit on terms and conditions of employment and,
if an understanding is reached, embody the understanding in a signed agreement:
Included: All full-time and regular part-time non-professional employees including
careworkers, instructors, trainers, infirmary technicians, receptionists, custodial service35
workers, maintenance employees, administrative support staff, assistant program directors,
assistant supervisors, food service workers, secretaries, licensed practical nurses and
transport staff employed by the Employer at its facility located at 4129 N. Rt. 1-17,
Momence, IL 60954
40
Excluded: All professional employees, managerial employees, and guards and
supervisors as defined by the Act.

26 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–88–17
14
(b) Before implementing any changes in wages, hours, or other terms and
conditions of employment of unit employees, notify and, on request, bargain with the
Union.
(c) At the request of the Union, rescind the change in the terms and conditions5
of employment for its unit employees that was unilaterally implemented on about July
1, 2016, concerning providing employees with an at least 1% annual merit wage
increase.
(d) At the request of the Union, rescind the change in the terms and conditions10
of employment for its unit employees that was unilaterally implemented on about
November 18, 2016, concerning the new care worker mentor program and
corresponding wage increase.
(e) Make unit employees whole for any loss of earnings and other benefits15
suffered as a result of the unilateral changes, in the manner set forth in the remedy
section of this decision.
(f) Compensate affected employees for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and file with the Regional Director for Region20
25, within 21 days of the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the appropriate calendar year for
each employee.
(g) Preserve and, within 14 days of a request, or such additional time as the25
Regional Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.30
(h) Within 14 days after service by the Region, post at its Momence, Illinois
facility copies of the attached notice marked “Appendix.”27 Copies of the notice, on
forms provided by the Regional Director for Region 25, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent and35
maintained for 60 consecutive days in conspicuous places, 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 by40
the Respondent to ensure that the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own

27 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–88–17
15
expense, a copy of the notice to all current employees and former employees employed
by the Respondent at any time since July 1, 2016.
(i) Within 21 days after service by the Region, file with the Regional
Director for Region 25 a sworn certification of a responsible official on a form5
provided by the Region attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C., October 23, 2017
10
__________________________________
Michael A. Rosas
Administrative Law Judge15
,*)--•i,'.- - 4 - ,-
JD–88–17
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT refuse to bargain in good faith with the American Federation of State,
County and Municipal Employees (AFSCME), Council 31, AFL- CIO (the “Union”)
as the exclusive collective- bargaining representative of our employees in the
following bargaining unit:
All full-time and regular part-time non-professional employees including
careworkers, instructors, trainers, infirmary technicians, receptionists,
custodial service workers, maintenance employees, administrative support
staff, assistant program directors, assistant supervisors, food service workers,
secretaries, licensed practical nurses and transport staff employed by the
Employer at its facility located at 4129 N. Rt. 1-17, Momence, IL 60954:
BUT EXCLUDING all professional employees, managerial employees, and
guards and supervisors as defined by the Act.
WE WILL NOT refuse to bargain in good faith with the Union as the exclusive collective-
bargaining representative of our employees in the bargaining unit concerning any proposed
changes in wages, hours and working conditions before putting such changes into effect,
including wage increases you may have been entitled to as a result of your annual evaluations
and the creation of new positions such as mentors and the wage rates for those positions.
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, upon request, bargain in good faith with the Union as the exclusive collective-
bargain representative of our unit employees concerning wages, hours, and working conditions.
If an agreement is reached with the Union, we will sign a document containing that agreement.
JD–88–17
WE WILL, if requested by the Union, rescind any or all changes we made without bargaining
with the Union, including not paying wage increases you may have been entitled to as a result of
your annual evaluations and creating a new position such as mentors and the wage rates for
those positions.
WE WILL pay you for the wages lost because of not paying wage increases you may have been
entitled to as a result of your annual evaluations.
WE WILL compensate affected employees for the adverse tax consequences, if any, of
receiving lump-sum backpay awards, and WE WILL file a report with the Regional Director
allocating the payments to the appropriate calendar year.
GOOD SHEPHERD MANOR, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
575 North Pennsylvania Street, Room 238, Indianapolis, IN 46204-1577
(317) 226-7381, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/25-CA-191404 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (317) 226-7413.