Hill Park Health Care Center

National Labor Relations Board - Board Decisions

Jun 20, 2001

334 N.L.R.B. 328 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 328
The Park Associates, Inc., d/b/a Hill Park Health Care
Center and Local 200A, Service Employees In-
ternational Union, AFL–CIO and Service Em-
ployees of Upstate New York Pension Fund.
Cases 3–CA–20898, 3–CA–21073, and 3–CA–
21266
June 20, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND TRUESDALE
On December 10, 1998, Administrative Law Judge Karl
H. Buschmann issued the attached decision. The Respon-
dent filed exceptions, a supporting brief, and a reply brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record1
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.2

ered:

1 The Respondent’s request for oral argument is denied as the record,
exceptions and briefs adequately present the issues and the position of
the parties.
2 Contrary to our dissenting colleague, we agree with the judge that
the Respondent’s posting of a wage and benefits package that on its
face limited eligibility to nonunion employees and distribution of a
pamphlet notifying employees of the “1–800 hotline” for purpose of
raising employment-related concerns violated Sec. 8(a)(1) of the Act.
It is well settled that an announcement of benefits restricted to non-
union employees is, under most circumstances, a per se violation of the
Act. Libby-Owens-Ford Co., 285 NLRB 673 (1987); Alaska Pulp
Corp., 300 NLRB 232 (1990), enfd. mem. 972 F.2d 1341 (9th Cir.
1992). In the instant case, the nonunion wage and benefit summary
was posted shortly after the Respondent effectuated the purchase and
during the critical period before the decertification election. The sum-
mary described a merit raise program (for nonunion employees) which
held out the possibility of raises higher than those attainable under the
existing wage structure if employees withheld support from the Union.
While the Act does not prohibit an employer from making statements
of existing benefits to his employees before a representation election, it
does prohibit promises, implicit or explicit, to induce employees to vote
to be unrepresented. Contrary to our dissenting colleague, we find that
the latter is involved here.
With regard to the “1–800 hotline,” the Board recognizes that when
an employer institutes a new practice of soliciting employee complaints
during an organizational campaign, there is a compelling inference of
an implicit promise to correct the inequities discovered and to convince
employees that the combination of inquiry and correction will make
union representation unnecessary. DTR Industries, 311 NLRB 833,
834 (1993). Accordingly we find that the Respondent’s distribution of
the pamphlet during the critical period signaled to employees that the
Union might not be necessary given the Respondent’s willingness to
listen to and give consideration to their employment-related concerns.
Contrary to our dissenting colleague, we start from the premise that the
pamphlet was distributed during the critical period, not that the hotline
was instituted during the critical period.
The Respondent excepts to the judge’s findings that it
unlawfully relied on a decertification petition when it re-
fused to recognize and bargain with the Union on Septem-
ber 4, 1997. We agree with the judge that the Respondent
unlawfully refused to recognize and bargain with the Un-
ion, but for the reason discussed below. Our finding that
the Respondent was not privileged to rely on the petition
in refusing to bargain with the Union is based on the “suc-
cessor bar” rule, adopted by the Board in St. Elizabeth
Manor, Inc., 329 NLRB 341 (1999), which issued after the
judge’s decision in this case.
In St. Elizabeth’s Manor, Inc., the Board held that a
petition challenging a union’s majority status is precluded
for a reasonable period after a successor employer’s
obligation to recognize an incumbent union is trigg
[O]nce a successor’s obligation to recognize an incum-
bent union has attached (where the successor has not
adopted the predecessor’s contract), the union is enti-
tled to a reasonable period of bargaining without chal-
lenge to its majority status through a decertification ef-
fort, an employer petition, or a rival petition.8
____________________________
8 In the successorship situation, the successor employer’s obli-
gation to recognize the union attaches after the occurrence of two
events: (1) a demand for recognition or bargaining by the union; and
(2) the employment by the successor of a “substantial and represen-
tative complement” of employees, a majority of whom were em-
ployed by the predecessor. See Royal Midtown Chrysler Plymouth,
296 NLRB 1039, 1040 (1989). Thus because the employer’s obli-
gation to recognize the union commences at that time, as soon as
those two events have occurred, the bar to the processing of a peti-
tion or to any other challenge to the union’s majority status begins,
whether or not the employer has actually extended recognition to
the union as of that time.

329 NLRB 344.3
In the instant case, the Respondent concedes that it is a
successor to Hill Haven under Burns Security Services,
406 U.S. 272 (1972). Further, the judge found and we
agree that the Respondent is a “perfectly clear” successor
required to maintain employees’ existing terms and condi-
tions of employment and obligated to bargain with the
Union about any changes in those terms and conditions.4
3 As the Board explicitly stated in Inn Credible Caterers, Ltd., 333
NLRB 898 (2001), the effect of the decision in St. Elizabeth Manor was
to return to the principle expressed in Landmark International Trucks,
257 NLRB 1375 (1981), enf. denied 699 F.2d 815 (6th Cir. 1983), that
a successor employer violates Sec. 8(a)(5) if it withdraws recognition
before a reasonable period of time for bargaining has elapsed, whether
that withdrawal is based on a good-faith doubt of the union’s continu-
ing majority status or evidence of actual loss of majority status, supra.
Accordingly, the contrary view, as expressed in Harley Davidson
Transportation Co., 273 NLRB 1531 (1985), is no longer good law
after St. Elizabeth Manor.
4 We find no merit in the Respondent’s exceptions to this finding.
The Respondent’s regional vice president, Joseph Hugar, testified that,
334 NLRB No. 55
HILL PARK HEALTH CARE CENTER 329
See id. at 294; Spruce Up Corp., 209 NLRB 194, 195
(1974). Both predicate events required by St. Elizabeth
Manor to establish a bargaining obligation had transpired.
First, there is no dispute that the Respondent employed a
substantial and representative complement of employees
on August 1, 1997,5 when it effectuated the purchase of
the Hill Haven facility and continued the operation of the
facility. Second, also on August 1, the Union demanded
recognition and requested to bargain with the Respondent
concerning the employees’ terms and conditions of em-
ployment.
By letter dated September 4, the Respondent informed
the Union of its refusal to bargain, relying on a decertifica-
tion petition that had been filed with the Board’s Regional
Office on August 14. The petition was signed by 50 of 93
employees. The judge found that the Respondent had
been aware of the decertification petition since August
13.6 We find however that under St. Elizabeth Manor the
Respondent was not privileged to rely on that petition in
refusing to bargain with the Union. The Respondent’s
obligation to bargain with the Union attached when the
Union demanded recognition and bargaining on August 1.
The successor bar therefore precluded withdrawal of rec-
ognition before a “reasonable period of time” for bargain-
ing had elapsed.7

at a meeting with employees on May 14, 1997, prior to the purchase of
the Hill Haven facility, he told employees that the Respondent “had an
obligation to bargain with them in the event we did become the owner”
and that “we were keeping things basically the same.” Hill Haven’s
administrator told the employees at a meeting in July that everyone
would be hired. Further, in a letter to the Board’s Regional Office
dated November 4, 1997, the Respondent stated that “Mr. Hugar made
it clear at the meetings that the Company would leave in place all the
wages, benefits and working conditions that the employees of Hill
Haven enjoyed.” Accordingly, we find that the Respondent promised
employment to Hill Haven’s employees on the existing terms and con-
ditions of employment.
5 Unless otherwise indicated, all dates are in 1997.
6 In a telephone conversation on August 19 and again by letter dated
August 25, the Union notified the Respondent of a prounion petition
dated August 1 and signed by approximately 70 employees. In view of
our finding that the “successor bar” precluded the Respondent’s with-
drawal of recognition, we find it unnecessary to pass on the judge’s
reasons for his finding that the Respondent unlawfully relied on the
decertification petition to withdraw recognition. See generally Levitz,
333 NLRB 717 (2001).
7 Contrary to the Respondent’s contention, this finding is consistent
with the United States Court of Appeals for the Second Circuit’s more
restrictive view of the “perfectly clear” caveat of Burns. See Nazareth
Regional High School v. NLRB, 549 F.2d 873, 881 (2d Cir. 1977) (find-
ing that an employer must bargain before setting the initial terms and
conditions of employment only if “all of the employees . . . have . . .
been promised re-employment on the existing terms.”). See also NLRB
v. Amateyus, 817 F.2d 996, 998 (2d Cir. 1987). During this insulated
period, there can be no challenge to a union’s representational status.
This rule affords the parties and the employees a period of stability to
develop their bargaining relationship without interruption. After a
reasonable period of time elapses, the employees will have an opportu-
nity to change or eliminate their bargaining representative, if they so
choose. St. Elizabeth Manor, supra. Like our dissenting colleague, we
take seriously the Act’s goal of protecting employees’ free choice.
However, we are also mindful of the Act’s competing goal of promot-
ing stable labor-management relations by encouraging the practice and
procedure of collective bargaining. Accordingly, for the reasons set
forth in the majority opinion in St. Elizabeth Manor, we reject our
dissenting colleague’s criticism of the successor bar doctrine.
In the instant case, it is clear that a reasonable period
had not elapsed when the Respondent refused to bargain
on September 4. No bargaining had occurred. No nego-
tiations had been scheduled. The Respondent did not re-
ply to the Union’s request for bargaining until after it was
aware of the decertification petition. On August 19, the
Respondent’s representative told the Union that he had not
yet decided what the Respondent’s obligations were under
the circumstances. By letter dated August 29, the Respon-
dent informed the Union that until the decertification elec-
tion determined the Union’s majority status, collective
bargaining was premature.8 Accordingly, we find that the
Respondent violated Section 8(a)(5) and (1) of the Act by
withdrawing recognition from and refusing to bargain with
the Union.
We agree, for the reasons fully set forth in Caterair In-
ternational, 322 NLRB 64 (1996), that an affirmative bar-
gaining order is warranted in this case as a remedy for the
Respondent’s unlawful withdrawal of recognition from the
Union. We adhere to the view, reaffirmed by the Board in
that case, that an affirmative bargaining order is “the tradi-
tional, appropriate remedy for an 8(a)(5) refusal to bargain
with the lawful collective bargaining representative of an
appropriate unit of employees.” Id. at 68.
In several cases, however, the United States Court of
Appeals for the District of Columbia Circuit has required
that the Board justify, on the facts of each case, the impo-
sition of such an order. See, e.g., Vincent Industrial Plas-
tics, Inc. v. NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee
Lumber & Building Material v. NLRB, 117 F.3d 1454,
1462 (D.C. Cir. 1997), and Exxel/Atmos v. NLRB, 28 F.3d
1243, 1248 (D.C. Cir. 1994). In Vincent, the court sum-
marized the court’s law as requiring that an affirmative
bargaining order “must be justified by a reasoned analysis
that includes an explicit balancing of three considerations:
(1) the employees § 7 rights; (2) whether other purposes of
the Act override the rights of employees to choose their
bargaining representatives; and (3) whether alternative
remedies are adequate to remedy the violations of the
Act.” 209 F.3d at 738.

8 As the judge noted, on August 26, the parties entered into a stipu-
lated election agreement and an election was conducted on October 2.
The ballots, however, were impounded pending disposition of the un-
fair labor practice charges.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 330
Although we respectfully disagree with the court’s re-
quirement for the reasons set forth in Caterair, we have
examined the particular facts of this case as the court re-
quires and find that a balancing of the three factors war-
rants an affirmative bargaining order.
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the em-
ployer’s unlawful refusal to bargain. An affirmative bar-
gaining order, with its attendant bar to raising a question
concerning the Union’s continuing majority status for a
reasonable time, does not unduly prejudice the Section 7
rights of employees who may oppose continued union
representation because the duration of the order is no
longer than is reasonably necessary to remedy the ill ef-
fects of the violation.
Moreover, ordering the successor employer to bargain
for a reasonable period of time with the incumbent union,
as in this case, serves “to protect the newly established
bargaining relationship and the previously expressed ma-
jority choice, taking into account that the stresses of the
organizational transition may have shaken some of the
support the union previously enjoyed.” St. Elizabeth
Manor, supra. To require bargaining to continue only for
a reasonable period of time, not in perpetuity, fosters in-
dustrial peace and stability and will ensure that the bar-
gaining relationship established between the Respondent
and the Union will have a fair chance to succeed.
(2) The affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective bar-
gaining and industrial peace. That is, it removes the Re-
spondent’s incentive to delay bargaining or to engage in
any other conduct designed to further discourage support
for the Union. It also ensures that the Union will not be
pressured, by the possibility of a decertification petition, to
achieve immediate results at the bargaining table follow-
ing the Board’s resolution of its unfair labor practice
charges and issuance of a cease and desist order.
(3) A cease and desist order, without temporary decerti-
fication bar, would be inadequate to remedy the Respon-
dent’s violations because it would permit a decertification
petition to be filed before the Respondent had afforded the
employees a reasonable time to regroup and bargain
through their representative in an effort to reach a collec-
tive-bargaining agreement. Such a result would be par-
ticularly unfair in circumstances such as those here, where
litigation of the Union’s charges took a couple of years
and many of the Respondent’s unfair labor practices were
of a continuing nature and were likely to have a continuing
effect, thereby tainting any employees disaffection from
the Union arising during that period or immediately there-
after. We find that these circumstances outweigh the tem-
porary impact the affirmative bargaining order will have
on the rights of employees who oppose continued union
representation.
Finally, the successor bar rule adopted in St. Elizabeth
Manor effectively provides the same reasonable period for
bargaining here as would an affirmative bargaining order.
For all the foregoing reasons, we find that an affirmative
bargaining order with its temporary decertification bar is
necessary to fully remedy the allegations in this case.
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge and orders
that the Respondent, The Park Associates, Inc., d/b/a Hill
Park Health Care Center, Syracuse, New York, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order.

CHAIRMAN HURTGEN, dissenting in part.
Contrary to my colleagues, I find that the Respondent
did not violate Section 8(a)(5) and (1) by its September 4,
1997, refusal to bargain with the Union. I further find that
the Respondent did not violate Section 8(a)(1) by posting a
document entitled “Benefits for Non-Union Employees”
or by publicizing its “1–800 hotline” whereby employees
could obtain answers to employment-related questions.
1. Refusal to Bargain
On August 1, 1997, the Respondent commenced opera-
tion of the Hill Haven facility, employing the predeces-
sor’s employees. The Union represented these employees
under the predecessor. On the same date, the Union de-
manded that the Respondent recognize and bargain with it
as the exclusive bargaining representative. In response to
the Union’s demand, the Respondent notified it on August
7 that Attorney James Meath would represent the Respon-
dent. The Respondent further informed the Union that
Meath was on vacation through August 12 and would con-
tact the Union after his return.
On August 13, before any such contact, the Respondent
received a petition, signed by 50 of its 93 unit employees,
indicating that they no longer wanted to be represented by
the Union. Thereafter, on August 14, an employee of the
Respondent filed a petition with the Board for a decertifi-
cation election.
Having returned from vacation, Meath telephoned the
Union on August 18 and 19 at which time Meath informed
the Union that the Respondent had received the decertifi-
cation petition and had not yet determined its course of
action. Subsequently, on August 25 the Union sent the
Respondent a prounion petition, dated August 1, and
signed by 70 employees.
On August 26 the parties entered into a stipulation
agreement for a decertification election, scheduled for

HILL PARK HEALTH CARE CENTER 331
October 2. On August 29 the Respondent informed the
Union that the scheduled election would determine the
issue of majority status and that immediate collective bar-
gaining would be premature. Following repeated bargain-
ing demands by the Union, and claims by the Respondent
that it had a good-faith doubt of the Union’s majority
status, the Respondent notified the Union on September 3
and 4 that it would not bargain with the Union.
The decertification election was conducted on October 2
and the employee ballots have been impounded pending
resolution of this proceeding.1
Based on the foregoing facts, I find that the Respondent
lawfully refused to recognize and bargain with the Union
on September 4.2 In reaching this conclusion, I agree with
the judge and my colleagues that, as of August 1, the Re-
spondent was a Burns successor.3 Contrary to the judge
and the majority, however, I further find that the Respon-
dent’s September 4 refusal to recognize and bargain with
the Union was lawful.
As an initial matter, I note that my colleagues do not
contest the fact that the Respondent, on September 4, had
an uncertainty about the Union’s majority status. That was
premised on the employee petition of August 13.4 And,
the prounion petition received on August 25 did not re-
solve the doubt. It simply made it even more uncertain as
to whether the employees wanted representation by the
Union.
Further, my colleagues do not contend, and the evidence
does not establish, that the August 13 employee petition
was tainted by the assertedly unlawful conduct of August
1.5 Nor was that petition tainted by any prior refusal to
bargain. The evidence fails to show that the Respondent
had unlawfully refused the Union’s demand for recogni-
tion and bargaining before receiving the petition.6
Instead, my colleagues contend only that the Union’s
majority status was immune from attack for a reasonable
period of time after the Respondent commenced opera-
tions as a successor employer. See St. Elizabeth Manor,
329 NLRB 341 (1999). My colleagues further conclude
that because a reasonable period had not passed, the Re-
spondent lawfully could not have refused to bargain with
the union, even though such refusal was based on the un-
tainted employee petition.

1 My colleagues have now dismissed the representation case. They
will not count the ballots.
2 The same is true with respect to the refusal of September 3. For
the sake of convenience, I will use the date of September 4.
3 NLRB v. Burns Security Services, 406 U.S. 272 (1972).
4 Allentown Mack v. NLRB, 522 U.S. 359 (1998).
5 Although the judge found that, prior to the petition, the Respondent
had ceased paying pension contributions effective August 1, there was
no finding that this asserted 8(a)(5) violation was known by employees
or relied on them when signing the decertification petition. And, even
had the employees known of this asserted violation, there is no evi-
dence of a causal connection between it and the subsequent employee
disaffection from the Union. See Lee Lumber & Building Material
Corp., 322 NLRB 175, 177 (1996).
6 Indeed, the General Counsel concedes on brief that the Respondent
had not refused to recognize the Union prior to receiving the petition.
Further, in the circumstances (the Respondent’s August 7 letter, and its
attorney’s vacation) the Respondent did not unreasonably delay in
responding to the Union’s August 1 demand.
For the reasons stated in the dissenting opinion in St.
Elizabeth Manor, 329 NLRB at 344, I disagree with the
holding in that case. Accordingly, I conclude that the em-
ployees were free to reject the Union, and the Respondent
thus, did not violate Section 8(a)(5) by refusing to recog-
nize or bargain with the Union.
My position properly balances the competing interests
of fostering collective bargaining and ensuring employee
free choice.7 Under Burns, if a majority of the successor’s
employees come from the predecessor, the union’s major-
ity status is presumed to continue, and the successor is
obligated to honor the collective-bargaining relationship
that existed between the predecessor and the union. How-
ever, if there is uncertainty as to whether a majority of the
successor’s employees wish to be represented by the un-
ion, a question concerning representation is raised. “Of
paramount importance . . . is the employees’ Section 7
right to select a union representative of their choice or to
have no union represent them at all, supra.
Here, the contrary result reached by my colleagues
demonstrates the enormity of the majority’s error in St.
Elizabeth Manor. Under that majority view, my col-
leagues have disregarded the will of the majority of the
unit employees. They do this by not tallying the results of
the October 2 election and by substituting for it an affirma-
tive bargaining order under Caterair International, 322
NLRB 64 (1996). In essence, my colleagues do not care
to know the results of the election. The effect of this ap-
plication of St. Elizabeth Manor is to “seriously infringe[]
on employees’ Section 7 rights to engage in or refrain
from engaging in union activity.” Supra.
Accordingly, I would dismiss the allegations that the
Respondent violated Section 8(a)(5) by refusing to bargain
with the Union on September 4. I would likewise dismiss
the remaining 8(a)(5) allegations based on alleged Re-
spondent unilateral changes to terms and conditions of
employment after it lawfully refused to recognize and bar-
gain with the Union.
7 While the majority here and in St. Elizabeth Manor pays lip service
to the notion of balancing the competing interests of labor stability and
employee exercise of Sec. 7 rights, in my view their “balance” sacri-
fices the overriding interest of employee free choice.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 332
2. “1–800 Hotline”
Contrary to the judge and my colleagues, I further find
no merit to the allegation that the Respondent violated
Section 8(a)(1), in late August 1997, by publicizing an
existing hotline answering service whereby employees
could leave messages “voicing any questions, comments,
or suggestions [they] may have.”8
First, I reject the judge’s finding that the hotline consti-
tuted a solicitation of grievances and invitation that em-
ployees deal directly with it rather than the Union. I also
do not find it reasonable to infer that employees would
view it as having that purpose. As the Respondent stated
in its literature describing the hotline service, “Our ulti-
mate goal is for the hotline to be a constructive means of
communication for resolving unanswered questions and
listening to your suggestions. We hope that you find this
service useful.” In my view, nothing in this language es-
tablishes that the Respondent was soliciting employee
grievances as a way of undermining union support.
Nor do I agree with the judge’s additional finding that
the Respondent’s publication of its existing hotline consti-
tuted an implied promise to remedy employee grievances.
Thus, even assuming arguendo that this hotline could be
construed as a device for soliciting employee grievances, it
is well settled that a “solicitation of grievances is not in
and of itself an unfair labor practice. Hedstrom Co. v.
NLRB, 558 F.2d 1137, 1142 fn. 12 (3d Cir. 1977). “To
listen to suggestions does not in and of itself imply that the
suggestions will be acted on.” Visador Co., 245 NLRB
508 (1979). Section 8(a)(1) is violated only where the
solicitation of grievances is accompanied by an express or
implied promise to remedy them, and the promise inter-
feres with Section 7 rights. NLRB v. K&K Gourmet
Meats, 640 F.2d 460, 466 (3d Cir. 1981). Here, contrary
to the judge, there was neither an implied or express prom-
ise to remedy employee grievances.
Accordingly I would dismiss this allegation.
3. “Benefits for Non-Union Employees”
Finally, contrary to the judge and my colleagues, I find
that the Respondent did not violate Section 8(a)(1) by,
shortly after it commenced operation of the Hill Park facil-
ity, posting a document in late August 1997 listing existing
benefits that the Respondent provided to its unrepresented
employees. In my view, there is nothing unlawful about
an employer’s accurately informing employees of the ex-
tant benefits that it provides to its unrepresented employ-
ees. Beverly Enterprises, Inc. v. NLRB, 139 F.3d 135 (2d
Cir. 1998). See also my dissenting opinion in Waste Man-
agement of Palm Beach, 329 NLRB 198 (1999). Contrary
to my colleagues, such accurate reporting of existing bene-
fits does not constitute an express promise to increase em-
ployees’ benefits in order to discourage union support.
See, e.g., HarperCollins San Francisco v. NLRB, 79 F.3d
1324, 1327 (2d Cir. 1996). Nor can it reasonably be
viewed as an implied promise to improve benefits if em-
ployees withdraw support from the Union. Rather, dis-
semination of this information is protected under Section
8(c) of the Act.

8 In finding the violation, my colleagues start from the premise that
the hotline was distributed during the critical period. However, it was
instituted prior thereto. Thus, this was an existing service that the
Respondent publicized. As such, this publication was not unlawful.
See Weather Shield of Connecticut, 300 NLRB 93, 96–97 (1990).
Further, the fact that the extant benefits are limited to
nonunion employees does not establish illegality. Benefits
at unionized facilities are subject to collective bargaining,
and thus, an employer can correctly convey to employees
the lawful proposition that the employer’s unilateral condi-
tions would not necessarily apply to unionized facilities.
Accordingly, I would dismiss this allegation.

Ron Scott, Esq., for the General Counsel.
David C. Burton and Douglas M. Nabhan, Esqs. (Williams,
Mullen, Cristian & Dobbins), of Richmond, Virginia, for
the Respondent.
Charles E. Blitman, Esq. (Blitman & King), of Syracuse, New
York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This
case was tried on June 9 and 10, 1998, in Syracuse, New York,
on a consolidated complaint, dated May 26, 1998. The under-
lying charges were filed by Local 200A, Service Employees
International Union, AFL–CIO (the Union) in Cases 3–
CA-20898 and 3–CA–21073 and by the Service Employees of
Upstate New York Pension Fund (the Fund) in Case 3–
CA-21266. The complaint alleges that the Respondent, The
Park Associates, Inc. d/b/a Hill Park Health Care Center vio-
lated Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act (the Act) by (a) maintaining a wage and benefit pro-
gram applicable to nonunion employees, (b) maintaining an
employee hotline as a alternative to the grievance procedure,
(c) notifying employees of a weekly pay schedule as a benefit
to unit employees, (d) by discharging employees Tracy Willis
and Kathy Harris because of their union support, (e) by failing
and refusing to recognize and bargain with the Union, (f) uni-
laterally ceasing contributions to a pension fund, unilaterally
changing hourly wage rates, and (g) by unilaterally changing
the biweekly payroll to a weekly payroll system.
The Respondent’s answer, timely filed, admits the jurisdic-
tional allegations in the complaint as well as the supervisory
status of the individuals alleged in the supervisory hierarchy of
Hill Park Health Care Center.
On the entire record, including my observation of the de-
meanor of the witnesses and after consideration of the briefs

HILL PARK HEALTH CARE CENTER 333
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
JURISDICTION
The Respondent, located at 4001 East Genesee Sheet, Syra-
cuse, New York, is engaged in the operation of a nursing home.
With projected revenues in excess of $100,000 and projected
purchases of goods in excess of $5000 directly from outside the
State of New York, the Respondent is admittedly an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The Union is admittedly a labor organization within the
meaning of Section 2(5) of the Act.
Background
Respondent’s predecessor, Hill Haven Nursing Home (Hill
Haven) was a party to a collective-bargaining agreement with
the Union. The agreement was to be effective from March 1,
1995, to February 28, 1998, and expressly recognized the Un-
ion as collective-bargaining representative for the following
unit of employees:

All full-time and regular part-time licensed practical nurses,
LPN Charge Nurses, Certified Nursing Assistants, Nursing
Assistant Trainees, Physical Therapy Aides, Occupational
Therapy Aides, Beautician/Hairdressers, Activities Aides,
Central Supply Aides, Resident Aides, Housekeeping em-
ployees, Laundry employees (and) Maintenance employees
employed by the Employer at its 4001 East Genesee Street,
Syracuse, New York facility; excluding all other employees,
registered nurses, head nurses, LPN assistant head nurses,
Medicare Coordinator, casual and per diem employees, other
professional employees, dietary employees, office clerical
employees, supervisors, guards and other employees as de-
fined in the Act.
The collective-bargaining agreement did not contain a suc-
cessor clause.
In early 1997 the Respondent began to negotiate with Hill
Haven for the acquisition of the facility. Ultimately an agree-
ment was reached whereby the sale would be accomplished
through the purchase of the assets.
The Union was apprehensive about the prospect of a new
owner and bargained with Hill Haven about the pending sale of
the facility, as well as other employment related issues. The
Union sent a letter dated June 12, 1997, to the New York State
Public Health Council stating its opposition to the change in
ownership and alleging, inter alia, that the new company had a
history of refusing to honor labor agreements (R. Exh. 8).
The Respondent countered the Union’s opposition and met
with the employees.
Regional Vice President Joseph Hugar met with the employ-
ees on May 14, 1997. He told the employees that the Respon-
dent had the obligation to bargain with the Union and that “we
were keeping things basically the same” (Tr. 252).
Larry Alcoff, the Union’s director of organizing, testified
that Hill Haven’s administrator, Nancy Van Derpool, informed
the employees at a meeting in July that people weren’t going to
lose anything, they are not going to change anything and that
everybody would be hired.
On August 1, 1997, the Respondent effectuated the purchase
of the Hill Haven facility and continued the operation of the
facility under the name of Hill Park Health Care Center. The
Union promptly requested in writing that the Respondent rec-
ognize and bargain with the Union (GC Exh. 5). Respondent’s
lawyer, David Burton responded by letter of August 7, 1997,
informing Alcoff that James Meath who would represent the
Respondent was on vacation and would be in touch with the
Union on his return (GC Exh. 6). When Alcoff did not receive
any message from Meath, Alcoff called him on August 12 and
13, 1997, but was unsuccessful. Not until August 18, 1997, did
Meath and Alcott speak about their respective concerns.
In the meantime, on August 14, 1997, Kristina Clapper, an
employee, had filed petition with the Regional Office of the
National Labor Relations Board to decertify the Union in Case
3–RD–1252 (GC Exh. 8). The petition was signed by 50 em-
ployees out of a total of 93 employees (R. Exh. 20). The Re-
spondent had been aware of the decertification petition since
August 13, 1997. Meath informed the Union in a conversation
of August 19, 1997, that he had a decertification petition and
that he had not yet decided what the Company’s obligation was
under these circumstances. Alcoff had another conversation
with Meath where Alcoff informed Meath that he had a proun-
ion petition, dated August 1, 1997, signed by approximately 70
employees (GC Exh. 7). The purpose of the prounion petition
was to show to the Company the employee sentiment when the
Union demanded recognition. By letter of August 25, 1997,
addressed to Respondent’s attorney, the Union notified the
Respondent of the prounion petition and demanded negotiations
over the employees working conditions at certain dates (GC
Exh. 11).
On August 26, 1997, the parties entered into a stipulated
election agreement whereby the election was scheduled for
October 2, 1997 (R. Exh. 29).
By letter of August 29, 1997, the Respondent informed the
Union that the election would determine the majority status of
the union support among the employees and that until then
collective bargaining was premature (GC Exh. 12).
The Union repeated its request to bargain by letter of Sep-
tember 3, 1997 (GC Exh. 13). The parties continued to ex-
change letters where the Respondent claimed that it had a good-
faith doubt about the majority status and the Union disputing
the Company’s position (GC Exhs. 14, 15, 16). The Respon-
dent, by letter of September 4, 1997, informed the Union of its
refusal to bargain (GC Exh. 16).
On September 26, 1997, the Union filed unfair labor practice
charges. The decertification election was held on October 2,
1997. The ballots, however, were impounded pending disposi-
tion of the unfair labor practice charges.
Analysis
A. A Successor’s Bargaining Obligation
The initial question is the status of the Respondent as a suc-
cessor to Hill Haven. According to the General Counsel, the
Health Care Center is a successor under NLRB v. Burns Secu-
rity Service, 406 U.S. 272 (1972), and bound by the collective-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 334
bargaining agreement of the predecessor, Hill Haven. Conced-
ing its successor status, the Respondent argues, however, that
irrespective of its status as a “Burns” successor, it is not bound
by the collective-bargaining agreement, because the purchase
agreement does not contain a successor clause, and unless the
acquiring party made it “perfectly clear” that it would assume
the collective-bargaining agreement, that obligation ceased.
The General Counsel agrees that a successor is bound by the
predecessor’s collective-bargaining agreement only when “it is
perfectly clear, that the new employer plans to retain all of the
employees in the unit” and consult with their bargaining repre-
sentative before he fixes terms. Burns, supra at 294.
The parties rely on Spruce Up Corp., 209 NLRB 194 (1974),
to argue their respective positions. There, the Board clarified
the “perfectly clear” issue. In circumstances, where “the new
employer has either actively, or, by tacit inference, misled em-
ployees into believing that they would all be retained without
changes in their wages, hours and conditions of employment, or
. . . where the new employer . . . has failed to clearly announce
its intent to establish a new set of conditions prior to inviting
employees to accept employment,” the exception has been sat-
isfied. Spruce Up Corp., supra at 195.
Here, the record shows that Hugar, when meeting with the
employees on May 14, 1997, stated in answer to a variety of
questions that he could not give specifics but that the new
Company would be “keeping things basically the same” (Tr.
252). In July 1997, Administrator Van Derpool told the em-
ployees that everybody would be hired by the new owner, that
the employees would not lose anything and that they (the new
owner) would not change anything. In a letter, dated Novem-
ber 4, 1997, addressed to the Board’s Regional Office, the Re-
spondent expressed its factual and legal position. The Respon-
dent stated: “Finally, Mr. Hugar made it clear at the meetings
that the Company would leave in place all the wages, benefits,
and working conditions that the employees of Hill Haven en-
joyed” (GC. Exh. 27, p. 2). In light of this evidence, I find
Hugar’s testimony less than convincing and inconsistent when
he testified that he responded at the May 14 meeting to an em-
ployee’s question about the pension plan as follows (Tr. 252):

Yes. Some, somebody asked if we were going to have a pen-
sion, and I did tell them that again we would have to bargain
for those things. They asked if any of our facilities had a pen-
sion, and I said, “No, they do not currently have pension in
our current facilities.”

Hugar also testified that he told the employees “that their
current contract did not have a successor clause, but that we did
have a right to bargain with them, and we had an obligation to
bargain with them in the event we did become the owner” (Tr.
252).
This testimony, according to the Respondent, made it clear to
the employees that the new owner would not assume the exist-
ing collective-bargaining agreement.
Even assuming arguendo, that Hugar had made the state-
ments to the employees including the one about the pension
plan, the Respondent’s ambivalence about its commitment
under the contract was indicated from a technical viewpoint,
but only if these remarks were considered out of context.
However, in the context of all the surrounding circumstances,
the overall message given to the employees who were appre-
hensive about the new company, was that they would all be
hired and that nothing would change. The Respondent thereby
attempted to allay the employees’ fears about the new owner. I
accordingly agree with the General Counsel that the employer
has actively and certainly by tacit inference misled the employ-
ees into believing that no changes were contemplated in their
working conditions. Under those circumstances, I find that the
Respondent is a “perfectly clear” successor bound by the
collective-bargaining agreement and obligated to bargain with
the Union about any changes in the employees’ conditions of
employment.
B. The Unilateral Change in Working Conditions
The Respondent initiated three important changes in the em-
ployees’ working conditions, even though it was bound by the
collective-bargaining agreement and even though it was re-
quired to—but failed—to bargain with the Union about the
changes. The first change alleged in the complaint was the
discontinuance of contributions to the pension fund which had
previously been provided on behalf of the employees. The
collective-bargaining agreement provided for the employer’s
contributions to the Service Employees of Upstate New York
Pension Fund (GC Exh. 2, p. 33). The pension fund contribu-
tions like rates of pay are considered terms and conditions of
employment. Nevertheless, as of August 1, 1997, the Respon-
dent admittedly discontinued making the required contribu-
tions.
The Respondent makes several arguments, including the ab-
sence of a successor clause in the contract. The perfectly clear
successor of course must assume all the obligations of the con-
tract irrespective of the absence of a successor clause. The
Respondent also argues that the decertification petition was
circulated prior to the employees’ receipt of their first
paycheck. As discussed below, the Respondent has improperly
relied on a good-faith doubt about the Union’s majority status.
Accordingly, prior to making any unilateral changes in the
employees’ terms and conditions of employment, the Respon-
dent was required to bargain with the Union. I accordingly find
that the Respondent violated Section 8(a)(5) and (1) of the Act
by failing to adhere to the collective-bargaining agreement and
discontinuing the pension contributions and by failing to bar-
gain collectively with the Union about any changes in the em-
ployees’ working conditions.
The second unilateral change made by the Respondent was a
change in the rates of wage rates of several employees, includ-
ing Kathy Harris. The employee wages are covered in the
collective-bargaining agreement (GC Exh. 2, p. 28). The re-
cord shows that the hourly pay of Harris was reduced from
$11.70 to $11.43. The Respondent argues that Harris did not
discover the change in pay until August 13, 1997, well after the
decertification petition had been prepared. Moreover, accord-
ing to the Respondent, the change in pay was an inadvertent
error, which not only affected Harris but several other employ-
ees as well. The Respondent also asserts that the errors have
been corrected. The record does not support the argument that
the unilateral changes in pay were isolated errors and that they

HILL PARK HEALTH CARE CENTER 335
all have been corrected. Indeed the General Counsel has sub-
mitted additional payroll records and offered them as exhibits
into the record in accordance with the discussions on the record
(GC Br. p. 32).1 According to these records, the Respondent
has made numerous changes in the employees’ hourly pay, as
pointed out in greater detail in General Counsel’s brief (GC Br.
pp. 31-34). For example, the record establishes that the hourly
pay rates of Jennifer Young, Belinda Clark, and Sonny Drogo-
zowsky were reduced by about 15 to 25 units per hour. Their
pay was ultimately corrected. The rates of certain employees
were increased. The pay of Jennifer Dunbar, Shameckia Davis,
and Michelle Ballew were increased according to the calcula-
tions made by the General Counsel. He further represents that
a perusal of the rates for 28 employees shows that the Respon-
dent unilaterally changed other employees’ wage rates as well
(GC Br. p. 32). I am persuaded that a perusal of these records
shows that the Respondent effectuated changes in the pay of the
employees and that this was done contrary to the agreement and
without bargaining with the Union. I accordingly find that this
conduct violated Section 8(a)(5) and (1) of the Act.
The third change was one which the employees had wanted
and one which the Union had earlier included in its bargaining
request. On September 23, 1997, the Respondent announced to
the employees that the biweekly payroll period would be
changed to a weekly payroll effective October 3, 1997. The
announcement was made 9 days prior to the election resulting
from the decertification petition. The Respondent does not
contest that it made the change but argues that the change was
made for legitimate business reasons to fit the overall “com-
pany roll out” considering the established computer and ac-
counting systems (Tr. 271).
The Respondent’s position does not address the issue of bar-
gaining. It is clear that this change affected the employees’
working conditions and should have been the subject of bar-
gaining. The Respondent’s failure to do so violated Section
8(a)(5) and (1).
In addition, as alleged in the complaint, the announcement of
the change to a weekly payroll, considered a benefit to the em-
ployees, was presumptively intended to affect the employees’
sentiment shortly prior to the election. The timing of the policy
change, its effect 1 day after the election and the announcement
of the benefit, 9 days prior to the election, shows an antiunion
motive in violation of Section 8(a)(1) of the complaint, particu-
larly here where the Respondent had waited for 2 months after
its takeover without changes in this regard.
C. The Decertification Petition
The record shows that the Respondent recognized the Union
when the purchase of the predecessor’s assets had been con-
summated. It is well settled that the incumbent union enjoys
the presumption of majority status among the employees,
unless the Union had lost the support among the employees or
the employer had a good-faith doubt about the Union’s majority
support among the employees. Here, the Respondent officially
notified the Union verbally on September 3, 1997, followed by
letter of September 4, 1997, of its refusal to recognize the Un-
ion (GC Exh. 16). The Company based its refusal on the decer-
tification petition filed on August 14, 1997, signed by 50 of the
93 employees.

1 The exhibits (GC Exhs. 33-47) are hereby admitted into the record
in accordance with the understanding reflected in the record (Tr.
476-478).
On August 25, 1998, the Union had sent a letter to the Com-
pany and referred to a prounion petition signed by a majority of
the bargaining unit employees in support of the Union (GC
Exh. 11). The Company was accordingly made aware that the
Union claimed its majority status despite the decertification
petition. Yet the Respondent in its September 4 letter rejected
the Union’s claim of majority status and unequivocally denied
the Union’s demand to bargain. In the face of such competing
evidence, the Respondent unlawfully relied on the antiunion
petition to withdraw recognition, especially where as here the
Respondent had violated the Act in other respects as well. La
Verdiere’s Enterprises, 297 NLRB 826 (1990).
D. Wage and Benefit Program for Nonunion Employees and the
Employee Hotline
The six-page document entitled “Benefits for Non-Union
Employees” is alleged to have been posted since August 1,
1997. Applicable to nonunion employees only, such conduct is
a violation of Section 8(a)(1) as it has the inherent effect of
interfering with the employees’ Section 7 rights. The General
Counsel further argues that the Respondent’s conduct tainted
the decertification petition. The evidence in this regard is con-
flicting with four witnesses for the General Counsel testifying
that a wage and benefit package limited to nonunion employees
was posted prior to the filing of the decertification petition and
five witnesses for the Respondent testifying that the Respon-
dent’s employee benefits outline was not posted during the time
the decertification petition was circulated. Alcoff recalled dur-
ing his testimony that he received the document from Van Der-
pool at a meeting in July 1997 and that he heard from employ-
ees at the facility that the item had been posted in late July.
Employee Mildred Bertolero testified that she noticed the no-
tice posted about a week before August 1, 1997, on a bulletin
board near the timeclock. The accuracy of her testimony was
compromised by her two affidavits, dated October 29, 1997,
and April 14, 1998, respectively. In the one she stated that she
saw the posting after the change in ownership of August 1,
1997, and in the other she stated that she was reasonably certain
that it was posted before August 1, 1997 (R. Exhs. 44, 45).
While I believe that Bertolero made a conscientious effort dur-
ing her testimony to recall the precise time of the posting, I find
the testimony unreliable in the face of her prior affidavits. The
other witnesses, Tracy Willis and Kathy Harris, testified that
they noticed the notice posted during July 1997 near the
timeclock. I found the testimony of Harris and Willis generally
unpersuasive. They testified at length about their work records
and the circumstances of their discharges. Their testimony was
inconsistent with the written documentation in the record and I
believe that their recollections about the time of the posting was
similarly flawed.
Moreover, the Respondent’s witnesses, Kristina Clapper,
Carol Sinton-Adams, Frieda Heaney, and Jennifer Dunbar all of
whom were instrumental in circulating the decertification peti-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 336
tion, testified unequivocally that they did not see the document
posted during the time they circulated the petition, nor did they
tell other employees that they would benefit by getting a six
percent raise as reflected on the posting if they voted against
the Union. In addition, Hugar testified that the document was
not posted anytime in July 1997. Deborah Boland, director of
nursing, similarly testified that she had not noticed the docu-
ment prior to the filing of the petition.
The testimony about the “1-800 hot line” was similarly con-
troverted. The complaint alleges and the General Counsel ar-
gues that the Respondent had instituted the hotline as reflected
in a two-page document urging employees to call a 1-800 num-
ber to obtain information and answers to employment related
questions directly from management (GC Exh. 17). The publi-
cation and the maintenance of this conduct is alleged as a viola-
tion of Section 8(a)(1) of the Act. The General Counsel simi-
larly argues that the Respondent’s conduct relating to the hot-
line had a tainting effect on the decertification petition. The
same witnesses, Bertolero, Harris, and Willis testified for the
General Counsel about the timing of the hotline posting.
Mindful that the General Counsel has the burden to show
that the pay information for nonunion employees and the initia-
tion of the hotline were actually published or posted prior to the
filing of the decertification petition, I find the testimony of the
General Counsel’s witnesses less than convincing, particularly
in the light of the unequivocal testimony given by the Respon-
dent’s witnesses. I accordingly reject the argument that the
petition was tainted by the alleged conduct.
However, as alleged in the complaint, the record shows and
the Respondent does not contest that the conduct namely the
posting of the wage and benefit program and the institution of
the hotline, occurred at least sometime in the latter part of Au-
gust 1997. An employer who announces or offers benefits
which are limited to nonunion employees violates Section
8(a)(1) of the Act. Libbey-Owens-Ford Co., 285 NLRB 673
(1987). Likewise when an employer solicits grievances from
the employees, it is assumed that the employer will remedy
them. Moreover a hotline is an obvious invitation to deal with
the employees directly and bypass the union. This conduct
violates Section 8(a)(1) of the Act. Master Plastering Co., 314
NLRB 349 (1994).
E. The Discharges
Finally, the complaint alleges and the General Counsel ar-
gues that the Respondent violated the Act by discharging em-
ployees Traci Willis and Kathy Harris because of their union
support. The record does not support the allegations. Willis
has been an employee of Hill Haven and the Respondent since
March 1997. She was classified as a certified nurses’ aide or
CNA. She became an open union supporter in August 1997.
She had signed the prounion petition (GC Exh. 7). She also
wore a button with the inscription “Vote Know.” Willis had
changed the “Vote No” button to “Vote Know.” She may also
have been observed by management as she spoke with Alcoff
in August 1997 when they discussed the Union. The record
also reflects a brief conversation between her supervisor, Rich-
ard Kinney and Willis where Kinney told her in August after a
staff meeting that Hugar had made a statement to the effect that
Willis seemed disinterested in getting the Union out of the
facility.
The General Counsel argues that Willis’ discharge on De-
cember 29, 1997, was motivated by the Respondent’s union
animus. Willis, the only witness in support of the allegations,
testified at length about her work history and the incident which
precipitated her discharge. On December 29 she was sum-
moned to the administrator’s office where Administrator Peggy
Davis-Wilson informed Willis in the presence of other supervi-
sors that she was discharged because she had shaved off a pa-
tient’s mustache against his will.
Willis did not dispute the fact that she had shaved the pa-
tient’s mustache but stated in her testimony that the patient was
bedridden, unaware of his surroundings and unable to commu-
nicate. She also stated that she shaved his mustache for sani-
tary reasons because his face was covered with food particles
and mucus. Several witnesses for the Respondent testified that
the patient, although bedridden, was aware of his surroundings,
that he was proud of his mustache and that Willis’ conduct was
contrary to his will and the will of his family. According to the
Respondent, Willis was an employee with a poor work record
who had accumulated numerous disciplinary actions warranting
the termination for her final offense.
The General Counsel concedes that several of Willis’ past
offenses were of such nature as to warrant immediate dis-
charge, but questioned whether the numerous write-ups were
genuine, and theorizes that it is possible that Willis had never
seen the written reprimands. In this regard, I find that the Re-
spondent’s evidence against Willis is so overwhelming and
credible that her discharge would have happened even in the
absence of her union activity. Wright Line, 251 NLRB 1083
(1980). However, I find that Harris’ union sympathy and her
union activity were relatively insignificant and that there was
no showing of its causal connection to her discharge. The tes-
timony of Richard Kinney who is no longer employed by the
Respondent showed that many of Willis’ writeups were pre-
pared by him while he was her supervisor and that the written
reprimands were genuine. Deborah Boland, a registered nurse,
testified about the significance of the mustache to the patient
and his adverse reaction to the shaving incident. Jean Kopack,
who was the head nurse when the incident occurred and who
had prepared the final writeup testified that the patient was in
tears after his mustache had been shaved off and that the action
was a violation of the patient’s rights and the standards of prac-
tice at the nursing home. The record contains other write-ups
for various offenses, including her refusal to change a patient’s
clothing who was incontinent, being disrespectful toward a
patient, unauthorized telephone calls from a patient’s telephone,
unauthorized sleeping on the job, improperly turning the resi-
dents, etc. Willis’ reaction to the numerous write-ups was that
she had never seen them, was unaware that she had been disci-
plined and that her signature had to be reflected on the written
documents to be valid. Willis who was employed for less than
a year at the facility could not convincingly refute the numer-
ous reprimands. I find that the shaving incident was “the straw
that broke the camel’s back” after a series of other infractions.
I accordingly dismiss this allegation.

HILL PARK HEALTH CARE CENTER 337
The other employee alleged to have been discharged for her
union activity is Kathy Harris. She began her employment in
May 1997 as a licensed practical nurse (LPN). She was termi-
nated on January 2, 1998, because she did not live up to the
standards of a charge LPN.
The General Counsel argues that Harris engaged in union ac-
tivities and should not have been fired but should simply have
been demoted if her employer felt that she did not meet the
qualifications of a charge nurse. Harris’ union activities in-
cluded the wearing of a union button until October 1997, mak-
ing complaints to management of having to attend mandatory
antiunion meetings and voicing her support for the Union.
Harris admitted to having received two writeups, but could
not recall having been counseled or disciplined for any other
infractions. The record, however, shows that she had received
numerous writeups by different supervisors, including Richard
Kinney who is no longer employed by the Respondent and who
testified credibly about the existence of the documented mis-
conduct. She was written up for failure to sign medication
sheets on May 21 and again on July 24, 1997. Other infractions
include rudeness to another employee, failure to administer
drugs to a patient, tolerating deficient conditions in an entire
unit, absenteeism, showing of anger to a patient, and the failure
to clean a patient. The testimony of Supervisor Boland showed
that one of the medical directors of the facility had been par-
ticularity critical of Harris’ performance. According to Boland,
it is unusual for medical personnel to voice their criticism of
nurses in this facility, but Harris had one of the worst perform-
ance records at the facility. In short, the Respondent had ample
reasons to terminate the employee. Under Wright Line, it is
clear that she would have been discharged even in the absence
of any union activity.
However, I find that the record simply does not show that ei-
ther Harris or Willis were discharged because of their union
activities. The 8(a)(3) allegations in the complaint are therefore
dismissed.
CONCLUSIONS OF LAW
1. The Respondent, The Park Associates, Inc. d/b/a Hill
Park Health Care Center is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, Local 200A, Service Employees International
Union, AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. Service Employees of Upstate New York Pension Fund is
one of the Charging Parties and referred to as the Fund.
4. At all times, the Union has been the collective-bargaining
representative of the employees in the following appropriate
unit under Section 9(b) of the Act:

All non-professional employees, including licensed practical
nurses and other non-professional employees, excluding reg-
istered nurses, other professional employees, office clerical
employees, guards and supervisors as defined in the Act.

5. The collective-bargaining agreement dated March 1,
1995, between the Union and the Respondent’s predecessor,
Hill Haven, recognized the Union for the following employees:

All full-time and regular part-time Licensed Practical Nurses,
LPN Charge Nurses, Certified Nursing Assistants, Nursing
Assistant Trainees, Physical Therapy Aides, Occupational
Therapy Aides, Beautician/Hairdressers, Activities Aides,
Central Supply Aides, Resident Aides, Housekeeping em-
ployees, Laundry employees (and) Maintenance employees
employed by the Employer at its 4001 East Genesee Street,
Syracuse, New York facility; excluding all other employees,
registered nurses, head nurses, LPN assistant head nurses,
Medicare Coordinator, causal and per diem employees, other
professional employees, dietary employees, office clerical
employees, supervisors, guards and other employees as de-
fined in the Act.

6. The Respondent is a “perfectly clear” successor to Hill
Haven and was bound to maintain the terms and conditions of
employment as they existed at the moment of successorship.
7. By maintaining and publishing a wage and benefit pro-
gram applicable to nonunion employees only, the Respondent
violated Section 8(a)(1) of the Act.
8. By maintaining and publicizing an employee hotline in
order to bypass the Union and to solicit grievances, the Re-
spondent violated Section 8(a)(1) of the Act.
9. By notifying unit employees that their biweekly payroll
would be changed to a weekly pay system the Respondent vio-
lated Section 8(a)(1) of the Act.
10. By unilaterally changing the working conditions of its
employees in the three following respects, the Respondent vio-
lated Section 8(a)(5) and (1) of the Act.
(a) Ceasing contributions to a pension fund on behalf of unit
employees.
(b) Changing the hourly wages of Kathy Harris and other
unit employees.
(c) Converting the existing biweekly payroll system to a
weekly payroll system for unit employees.
11. By refusing to recognize and bargain with the Union on
behalf of the unit employees.
12. The unfair labor practices are then affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(1) and (5) of the Act, I find it necessary to order the Re-
spondent to cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully made changes
in the employees’ terms and conditions of employment without
bargaining with the Union, and contrary to the existing terms
and conditions of the collective-bargaining agreement, I shall
order the Respondent on request bargain with the Union on
behalf of the unit employees relating to the terms of the
collective-bargaining agreement and rescind all or part of the
unilateral changes to the preexisting terms and conditions of
employment. The Respondent must be ordered to remit to the
Fund the contributions which the Respondent failed to make
plus additional amounts if any, as prescribed in Merryweather
Optical Co., 240 NLRB 1213 (1979). In addition, the Respon-
dent must make whole the employees for the Respondent’s

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 338
unilateral changes in their pay rates as specified in Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd 444 F.2d 502 (6th
Cir. 1971). The precise amounts to be computed during the
compliance stage of the proceeding, with interest as computed
in New Horizon for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, The Park Associates, Inc., d/b/a Hill Park
Health Care Center, Syracuse, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and publicizing a wage and benefit program
applicable to nonunion employees only.
(b) Maintaining and publicizing an employee hotline for unit
employees to solicit their grievances and to circumvent the
Union as their bargaining representative.
(c) Notifying unit employees of a benefit that their biweekly
pay system would be changed to a weekly pay system.
(d) Making unilateral changes in the unit employees’ work-
ing conditions or changing the terms of the collective-
bargaining agreement without bargaining with the Union on
behalf of the unit employees.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request of the Union rescind all or part of the unilat-
erally made changes in terms and conditions of employment
and retroactively restore preexisting terms and conditions of
employment and, on request, bargain in good faith with the
Union as the exclusive bargaining agent of the above appropri-
ate unit of its employees with respect to their wages, hours, and
other terms and conditions of employment and embody any
understanding reached in a signed agreement.
(b) Remit to the Fund the contributions while the Respondent
failed to make plus interest as set forth in the remedy section of
this decision.
(c) Make Kathy Harris and other employees whole for the
unlawful changes in their hourly rate, as specified in the
remedy section of this decision.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its
Syracuse, New York facility, copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms provided
by the Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent 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 the business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current employees
and former employees employed by the Respondent at any time
since.

2 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 pur-
poses.

(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT maintain and publicize a wage and benefit
program applicable to nonunion employees only.
WE WILL NOT maintain and publicize an employee hotline
for unit employees to solicit their grievances and to circumvent
the Union as their bargaining representative.
WE WILL NOT notify unit employees of a benefit that their
biweekly pay system would be changed to a weekly pay sys-
tem.
WE WILL NOT make unilateral changes in the unit employ-
ees’ working conditions or changing the terms of the collective-
bargaining agreement without bargaining with the Union on
behalf of the unit employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

HILL PARK HEALTH CARE CENTER 339
WE WILL on request of the Union rescind all or part of the
unilaterally made changes in terms and conditions of employ-
ment and retroactively restore preexisting terms and conditions
of employment and, on request, bargain in good faith with the
Union as the exclusive bargaining agent of the above appropri-
ate unit of its employees with respect to their wages, hours, and
other terms and conditions of employment and embody any
understanding reached in a signed agreement.
WE WILL remit to the Fund the contributions while the Re-
spondent failed to make plus interest.
WE WILL make Kathy Harris and other employees whole
for the unlawful changes in their hourly rate, plus interest.
THE PARK ASSOCIATES, INC., D/B/A HILL
PARK HEALTH CARE CENTER