Morris Healthcare & Rehab

National Labor Relations Board - Board Decisions

Dec 29, 2006

348 N.L.R.B. 1360 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
348 NLRB No. 96
1360
Morris Healthcare & Rehabilitation Center, LLC,
and Prism Healthcare Group, Inc., a single inte-
grated enterprise and/or Joint Employer and
American Federation of State, County and Mu-
nicipal Employees, Council 31, AFL–CIO, on
behalf of AFSCME Local 3903. Case 13–CA–
42882
December 29, 2006
DECISION AND ORDER
BY MEMBERS LIEBMAN, KIRSANOW, AND WALSH
On May 30, 2006, Administrative Law Judge Michael
A. Rosas issued the attached decision. The Respondent
filed exceptions, and the General Counsel and the Charg-
ing Party each filed a cross-exception and an answering
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,2 to
amend the remedy, and to adopt the recommended Order
as modified and set forth in full below.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The judge concluded that the Respondent violated Sec. 8(a)(5) and
(1) of the Act by unilaterally setting initial terms and conditions of
employment upon taking over the operation of a nursing home from a
predecessor employer. In adopting the judge’s conclusion, we rely on
his finding that the Respondent was a “perfectly clear” successor and,
thus, was not privileged to set initial terms and conditions of employ-
ment. See Spruce Up Corp., 209 NLRB 194, 195 (1975), enfd. per
curiam 529 F.2d 516 (4th Cir. 1975). Therefore, we find it unnecessary
to pass on the judge’s additional finding that the Respondent was equi-
tably estopped from setting initial terms because of its coercive state-
ments to employees that it would operate nonunion. See Advanced
Stretchforming International, 323 NLRB 529 (1997), enfd. in part on
other grounds, remanded in part 208 F.3d 801 (9th Cir. 2000), amended
and superseded on rehearing and enfd. in relevant part 233 F.3d 1176
(9th Cir. 2000), cert. denied 534 U.S. 948 (2001), remanded by the
Board 336 NLRB 1153 (2001). Any such finding would not materially
affect the remedy in this case. As requested by the Charging Party,
however, we correct the judge’s inadvertent attribution of those coer-
cive statements to Kathy Minor, when in fact they were made by Alma
Woods and Suzanne Day.
3 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
We shall modify the judge’s Order to conform to the violations
found and the Board’s standard remedial language. We shall modify the
unit description in the Order to reflect the unit description alleged in the
complaint and admitted by the Respondent in its answer. We shall
substitute a new notice in conformity with the Order as modified.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. We shall order the
Respondent to bargain with the Union as the exclusive
collective-bargaining representative of the bargaining
unit and, if requested by the Union, to rescind any unilat-
eral changes in wages, benefits, and conditions of em-
ployment implemented on September 1, 2005, and there-
after. We shall order the Respondent to make whole the
unit employees for any loss of wages or other benefits
they suffered as a result of the Respondent’s unilateral
changes in the manner prescribed in Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971), with interest as set forth in New Horizons for
the Retarded, 283 NLRB 1173 (1987). We shall also
order the Respondent to reimburse unit employees for
any expenses resulting from the Respondent’s unlawful
changes to their health benefits, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), affd.
661 F.2d 940 (9th Cir. 1981), with interest as set forth in
New Horizons for the Retarded, supra.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Morris Healthcare & Rehabilitation Center,
LLC, and Prism Healthcare Group, Inc., Morris, Illinois,
a single integrated enterprise and/or joint employer, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees or job applicants that it will op-
erate with no union when it is obligated to recognize and
bargain with the Union, or any other labor organization,
on behalf of members of the bargaining unit.
(b) Asking job applicants about their views of the Un-
ion or any other labor organization.
(c) Unilaterally changing the wages, benefits, and
other terms and conditions of employment for members
of the bargaining unit without first bargaining with the
Union.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Bargain with the Union as the exclusive representa-
tive of the employees in the following appropriate unit
concerning terms and conditions of employment and, if
MORRIS HEALTHCARE & REHABILITATION CENTER 1361
an understanding is reached, embody the understanding
in a signed agreement:
All Licensed Practical Nurse, Certified Nurse Aide or
Nurse Aide, Dietary Aide, Cook, Activity Aide, Laun-
dry, Housekeeper, Maintenance Worker, Psych./Soc.
Aide, Runner and Support Service Workers employed
by the Respondent at the Respondent’s facility; but ex-
cluding Registered Nurse (DON, ADON and Clinical
Manager), Social Worker, Kitchen Manager, Office
Manager, Office Clerical (Receptionist/Administrative
Secretary), Ward Clerk, Volunteer Coordinator, Sched-
uler, Activity Director, and all other managerial em-
ployees, confidential employees, guards, and supervi-
sors as defined by the Act.
(b) On request by the Union, rescind the changes in the
terms and conditions of employment for the unit employ-
ees that were unilaterally implemented on September 1,
2005, and thereafter.
(c) Make unit employees whole for any loss of earn-
ings and other benefits suffered as a result of the unlaw-
ful unilateral changes in the manner set forth in the rem-
edy section, as amended, of this decision.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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.
(e) Within 14 days after service by the Region, post at
its facility in Morris, Illinois, copies of the attached no-
tice marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 13, after
being signed by the Respondent’s authorized representa-
tive, 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-

4 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.”
rent employees and former employees employed by the
Respondent at any time since August 22, 2005.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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 LABOR LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT tell employees or job applicants that we
will operate with no union when we are obligated to rec-
ognize and bargain with the American Federation of
State, County and Municipal Employees, Council 31,
AFL–CIO, on behalf of AFSCME Local 3903 (Union),
or any other labor organization, on behalf of members of
the bargaining unit.
WE WILL NOT ask job applicants about their views of
the Union or any other labor organization.
WE WILL NOT unilaterally change the terms and condi-
tions of employment of unit members without first bar-
gaining with the Union.
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 bargain with the Union as the exclusive rep-
resentative of the employees in the following appropriate
unit concerning terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement:
All Licensed Practical Nurse, Certified Nurse Aide or
Nurse Aide, Dietary Aide, Cook, Activity Aide, Laun-
dry, Housekeeper, Maintenance Worker, Psych./Soc.
Aide, Runner and Support Service Workers employed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1362
by the Respondent at the Respondent’s facility; but ex-
cluding Registered Nurse (DON, ADON and Clinical
Manager), Social Worker, Kitchen Manager, Office
Manager, Office Clerical (Receptionist/Administrative
Secretary), Ward Clerk, Volunteer Coordinator, Sched-
uler, Activity Director, and all other managerial em-
ployees, confidential employees, guards, and supervi-
sors as defined by the Act.
WE WILL, on request by the Union, rescind the changes
in the terms and conditions of employment for the unit
employees that were unilaterally implemented on Sep-
tember 1, 2005, and thereafter.
WE WILL make unit employees whole for any loss of
earnings and other benefits suffered as a result of the
unlawful unilateral changes.
MORRIS HEALTHCARE & REHABILITATION
CENTER, LLC, AND PRISM HEALTHCARE
GROUP, INC.
Richard S. Andrews, Esq., for the General Counsel.
John D. Jeske, Esq., of Chicago, Illinois, for the Respondent.
Melissa J. Auerbach, Esq. (Cornfeld and Feldman), of Chicago,
Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Chicago, Illinois, on February 6–7, 2006. The
charge was filed September 7, 2005, an amended charge was
filed November 15, 2005, and the complaint was issued No-
vember 18, 2005.1 The complaint alleges that the Respondent,
Morris Healthcare & Rehabilitation Center, LLC, and Prism
Healthcare Group, Inc., a single integrated enterprise and/or
joint employer,2 failed to bargain in good faith with the Charg-
ing Party, the American Federation of State, County and Mu-
nicipal Employees, Council 31, AFL–CIO, on behalf of
AFSCME Local 3903 (the Union), in violation of Section
8(a)(1) and (5) of the National Labor Relations Act (the Act) by
unilaterally changing wages, hours, and terms and conditions of
employees in a bargaining unit represented by the Union with-
out giving the Union notice and an opportunity to bargain. The
complaint also alleges that agents of the Respondent made
statements to employees informing them that it would be futile
to support the Union, in violation of Section 8(a)(1) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Respondent, and the Union, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operates a nursing home fa-

1 All dates are in 2005, unless otherwise indicated.
2 The parties stipulated that Morris Healthcare & Rehabilitation Cen-
ter, LLC, and Prism Healthcare Group, Inc. are a joint employer.
cility in Morris, Illinois (the nursing home), where, based on a
projection of its operations since September 1, when it com-
menced operations, the Respondent will annually derive gross
revenues in excess of $100,000. Furthermore, in conducting its
operations since September 1, the Respondent purchased and
received at its Morris facility goods valued in excess of $10,000
from other enterprises located within Illinois, each of whom
received these goods directly from points outside Illinois. The
Respondent 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.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Privatization of the Nursing Home
In May or June, the Grundy County Board of Supervisors
(Grundy County Board) decided it no longer wished to operate
the nursing home and prepared to transfer operations to a pri-
vate entity. As part of that process, the Grundy County Board
notified the Union, which represented most of the nursing
home’s employees, that it would solicit bids for a lease agree-
ment to operate the nursing home. As a result, the Union re-
quested and engaged in bargaining with Grundy County in June
and July. In July, the Grundy County Board started negotiating
with a group led by the nursing home’s medical director, Dr.
Peter Roumeliotis (the Roumeliotis Group). Negotiations lan-
guished, however, and the Grundy County Board rescinded its
offer to the Roumeliotis Group on August 16. At the same
meeting, it announced its intention to negotiate with Prism
Healthcare Group, Inc. (Prism).3 During the meeting, Kimberly
Westercamp, Prism’s chief operating officer, explained that
Prism had been involved in discussions with the Grundy
County Board for the past 6 months about different approaches
for a takeover and was “very interested in working with the
employees and the county.” Prism and the Grundy County
Board commenced lease negotiations on August 19. On the
same day, the nursing home’s management company (Revere
Healthcare), the nursing home’s administrator, and the director
of nursing resigned. Later that day, a representative of the Illi-
nois Department of Public Health arrived at the nursing home
to monitor operations. As a result, the Grundy County Board
asked Prism to immediately assume management of the nursing
home’s operations on an interim basis. Prism agreed.4
The Grundy County Board and Prism negotiated the terms of
a transfer of the nursing home over the next several days. They
were able to enter into a tentative agreement, subject to formal
approval at the next Grundy County Board meeting. At its Au-
gust 22 meeting, the Grundy County Board placed the proposed
nursing home transfer on the agenda for public discussion. The
Union’s regional director, Joseph Bella, addressed the Board
and spoke of his concern for the nursing home’s residents and
employees. Lewis Borsellino, Prism’s chief executive officer,
addressed those concerns. He explained that he wanted a

3 The relevant background is undisputed. (Tr. 28–31, 255–256, 280;
GC Exh. 22.)
4 This finding is based on the credible and unrefuted testimony of
Kimberly Westercamp, Prism’s chief operating officer. (Tr. 293–295.)
MORRIS HEALTHCARE & REHABILITATION CENTER 1363
smooth transition and planned to rehire most of the nursing
home’s staff, except for a few with absenteeism problems.5 On
the same day, the Grundy County Board approved an opera-
tions transfer agreement turning over the operation of the nurs-
ing home to the Respondent. As part of the transfer, the Re-
spondent would lease the facility and assume the operation of
the nursing home, effective September 1. The Respondent
would also immediately take over management of the nursing
home. Borsellino signed the lease agreement as owner of the
Respondent.6 The lease agreement included, in pertinent part,
an addendum stating the Respondent’s obligation to defer to
incumbent staff in hiring:
1.1 Senior Management
Lessee acknowledges that Lessee shall employ a
policy to give deference to existing staff members
prior to seeking outside staff and that in the event
that all candidate qualifications being taken as equal,
the Lessee shall allow the residency of the candidate
in the County of Grundy to be become the determin-
ing factor for employment of the candidate.
1.2 Medical Director
Lessee acknowledges that Lessee shall employ a
policy to give deference to the position of Medical
Director wherein in the event that all candidate
qualifications being taken as equal, the Lessee shall
allow the residency of the candidate in the County of
Grundy to become the determining factor for em-
ployment of the candidate as Medical Director. Les-
see further acknowledges its intention to offer the
position of Medical Director to Dr. Peter
Roumeliotis on commercially reasonable terms as
would be offered to a Medical Director with his
qualifications and skills.
1.3 Prior Staff and Employees
Lessee acknowledges that Lessee shall employ a
policy to give deference to existing staff members
prior to seeking outside staff and that in the event
that all candidate qualifications being taken as equal,
the Lessee shall allow the residency of the candidate
in the County of Grundy to become the determining
factor for employment of the candidate.7
In addition, during a local Sunday morning radio show
hosted in August by Grundy County Board member Dick
Steele, Borsellino reiterated that there would be a smooth tran-
sition, everything would remain the same, and most staff would

5 I based this finding on the credible testimony of Pamela Loveland
and Cynthia Farmer, who attended the board meetings in August. (Tr.
60-61, 93, 154, 198–206.)
6 Borsellino agreed during his testimony that he always intended to
live up that agreement. (Tr. 263; GC Exh. 10.) He also conceded that, at
the Grundy County board meeting, he was “in the hot seat” and needed
to have a happy work force. (Tr. 287.)
7 GC Exh. 10, p. 617.
be rehired, except for a few employees with absenteeism prob-
lems. He also said that he was not antiunion, but felt that unions
gave employees the opportunity to have excessive call-offs.8
B. The Employee Hiring Process
On August 22, Westercamp interviewed the nursing home’s
department heads. With the exception of the director of nursing,
who had resigned, Westercamp hired all of the remaining su-
pervisors and asked that they proceed to interview and hire
employees. The applications were then provided to nursing
home employees from August 22 to 24. At that point, however,
Westercamp had not yet determined wages, fringe benefits, or
working conditions and the application form was silent on those
points.
Between August 22 and 31, the nursing home’s employees
submitted employment applications and were interviewed by
department heads, as well as Alma Woods, Prism’s nursing
director at the Amboy Nursing Rehabilitation Center (Amboy
nursing home). Westercamp brought in Woods to interview the
applicants for nursing department positions.9 The rehired su-
pervisors included Lisa Joneson, the dietary department man-
ager, John Spiewak, the maintenance, housekeeping, and laun-
dry department (maintenance department) manager, and Bar-
bara Hoffman, the activities director.
At no time during the application and interview stages were
employees specifically informed about wages, benefits, or other
terms of employment.10 Some employees were, however, in-
formed of their wage rates prior to attending orientation. Jone-
son’s dietary department employees inquired about the wage
rate during their interviews. As a result, Joneson spoke with
Westercamp about applicable wage rates on August 26.
Westercamp provided Joneson with the information and Jone-
son informed her rehired employees the next time she saw them
at work—in any event, prior to the orientation sessions. Hoff-
man was also informed by Westercamp about the applicable
wage rates for activities department employees. She passed that
information on to the rehired employees prior to the orientation
sessions.11 In addition, Spiewak notified maintenance depart-
ment employees of their applicable wage rates prior to Septem-
ber 1.12

8 This finding is based on the credible testimony of Cynthia Farmer
and Lisa Foland. (Tr. 164, 241–242.) Borsellino conceded doing the
radio interview, but provided merely a summary of the interview and a
general denial that he did not make any promises regarding the hiring
process. That general denial sidestepped and was, therefore, insufficient
to refute the specific testimony of Farmer and Foland. (Tr. 283–284.)
9 This finding is based on the credible and fairly consistent testimony
of Loveland and Westercamp. (Tr. 61–62, 297–299, 323; GC Exh. 9.)
10 The testimony of the witnesses called by the General Counsel and
the Respondent, including Westercamp, was fairly consistent on this
point. (Tr. 70, 167, 217, 244–245, 298, 301–302, 310, 349, 363, 365–
366, 368; R. Exh. 2 .)
11 I base this finding on the testimony of credible and unrefuted tes-
timony of Westercamp, Joneson, and Hoffman, as it pertains to em-
ployees in the dietary and activities departments. (Tr. 303, 349–350,
357, 359.)
12 Spiewak also provided credible and unrefuted testimony regarding
the dissemination of wage rate information to maintenance department
employees. While it is clear that he told them their wage rates prior to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1364
Nursing department employees, however, did not have a
permanent supervisor as of September 1. As a result, they were
not informed of their wage rates until they received their pay-
checks on September 21.13 Several CNA’s did try to obtain
wage information before then, but were unsuccessful. On Au-
gust 27 or 28, Jessica Hoxie and other CNA’s approached
Woods. Hoxie asked Woods about the applicable wage rate, but
Woods did not know. Hoxie then asked her about benefits.
Woods explained that the Amboy nursing home had good bene-
fits. Hoxie then asked Woods whether Prism had its own staff.
Woods replied that when Prism took over the Amboy nursing
home, it kept 80 percent of the staff. Hoxie then asked Woods
if they were to come to work on September 1. Woods said
“yes.”14
While the Respondent did not convey any wage or benefit-
related information to employees during the application and
interview stages, several supervisors did inform several CNA’s
about their views of the Union. During her interview with
Woods on August 22, Lisa Foland, current union president, was
asked whether “it be a problem union or non-union.” Foland
replied, “no.”15 During her interview with Woods sometime
prior to August 31, Pamela Loveland was told “this is a non-
union place.” Woods then asked Loveland, who was then the
president of the Union, if that would bother her. Loveland,
motivated by the desire to be rehired, responded that it would
not bother her.16 Around the same time, and after being inter-
viewed by Woods on August 23 or 24, Denise Sereno spoke
with Suzanne Day, the nursing home’s former social worker
and newly appointed administrator.17 Day told her “that there
couldn’t possibly be a union because it only represents county
employees” and that “for private employees it’s a different
matter.”18
By August 31, 94 of the 96 nursing home’s bargaining unit-
level employees applied for employment by Prism. Of the 94
that applied, 90 were offered positions. Eighty of the 90 per-
sons offered employment accepted the position that was of-

September 1, it is unclear whether he told them prior to their attendance
at orientation. (Tr. 363, 366.)
13 I base this finding on the credible testimony of Loveland, Hoxie,
Foland, and Farmer. (Tr. 76–78, 128, 167, 244.) Teresa Averhart, a
nursing supervisor, initially testified that employees learned about their
wages before or at the time they were hired. However, her evasive
testimony about a pending promotion made her less than credible. In
any event, she conceded on cross-examination that nursing staff did not
learn their wage rates until after orientation. (Tr. 369–378.) As it turned
out, according to Borsellino, everyone who was rehired continued to
receive the same wage rate and some received raises. (Tr. 288.)
14 This finding is based on Hoxie’s credible and unrefuted testimony.
(Tr. 123–125.)
15 This finding is based on Foland’s credible and unrefuted testi-
mony. (Tr. 240, 244; GC Exh. 20.)
16 This finding is based on Loveland’s credible and unrefuted testi-
mony, as neither Minor nor Woods testified. (Tr. 64–71; GC Exh. 12.)
17 The parties stipulated that, at all relevant times, Minor and Day
acted as statutory supervisors, while Wood acted as a statutory agent of
the Respondent. (Jt. Exh. 3.)
18 This finding is based on Sereno’s credible and unrefuted testimony
(Tr. 220, 225–226, 253–254.)
fered. The rehired employees included Dr. Roumeliotis.19 On
August 31, after completing the interviewing and hiring of
incumbent nursing home staff, the Respondent then placed
employment advertisements in newspapers.20
C. The Orientation Sessions
All rehired employees were directed to attend orientation
meetings on August 29, 30, and 31. The meetings were con-
ducted by Nicole Minucciani, the Respondent’s human re-
sources manager. Minucciani read the entire employee hand-
book, which included, among other things, sections on em-
ployee classifications, hours of work, overtime, shifts, meal
times and breaks, performance evaluations and salary increases,
sick pay, bereavement leave, family leave, leave of absence,
paid holidays, paid vacations, and health insurance. A health
benefits specialist also explained the terms of health and dental
coverage. The employees acknowledged receipt of the hand-
book, as well as a harassment policy, a call-off policy, a resi-
dent handling policy, resident abuse and neglect acknowledge-
ment, a drug screening policy, and an acknowledgment that the
“first paycheck will be distributed once all information neces-
sary to complete employee file is completed and checked by the
front office.” Employees were also required to choose either a
benefit option or a no-benefit option. The benefit option in-
cluded the availability of health insurance, paid vacation, paid
sick time, paid holiday time, and bereavement pay. The no-
benefit option included the availability of health insurance
only.21
Each orientation session lasted up to an hour. The employee
handbook reflected the following changes in employees’ bene-
fits and working conditions: (1) eliminated the evening and
weekend shift differentials; (2) changed insurance coverage and
applicable copayments and premiums; (3) reduced the number
of paid holidays from 13 to 7; (4) changed the number and
accrual rate of sick days; (5) reduced breaktime from two 15-
minute breaks to two 10-minute breaks; (6) eliminated em-
ployee seniority; (7) reduced vacation amounts and accrual
rates; (8) changed shift and days-off schedules; (9) changed a
paid 30-minute meal period to an unpaid meal period; (10)
changed the hourly wages of some employees; (11) eliminated
personal leave days; (12) eliminated longevity pay; (13) elimi-
nated training pay; (14) eliminated temporary assignment pay;
(15) eliminated filling of vacancy and promotional rights; (16)
eliminated layoff and recall rights; and (17) eliminated and
changed disciplinary procedure and just cause rights. The af-
fected terms and conditions of employment were set forth in
Articles 7–11 and 16–24 of Grundy County’s collective-

19 Westercamp speculated that approximately 85 nursing home em-
ployees were rehired as of September 1, but a tally submitted by
Grundy County to the Union, providing information as of August 31,
was more reliable. (Tr. 264, 323; GC Exh. 5.)
20 Borsellino conceded that this was the earliest date that the Re-
spondent placed newspaper advertisements (Tr. 270–271; GC Exh. 23.)
21 There was no dispute between Minucciani and the employees who
testified about the meeting—Loveland, Hoxie, and Sereno—regarding
the information conveyed. (Tr. 75, 130–131, 218–219, 246–247, 330;
GC Exhs. 8, 13, 16, 19, 21; R. Exh. 1.)
MORRIS HEALTHCARE & REHABILITATION CENTER 1365
bargaining agreement (CBA) with the Union.22
D. Negotiations with the Union
Effective September 1, the Respondent leased the business of
the nursing home and since then has continued to operate the
business in basically unchanged form and has hired as a major-
ity of its employees individuals who were previously employ-
ees of the nursing home.23
Prior to September 1, the Union represented most of the
nursing home’s employees pursuant to its CBA with Grundy
County. The CBA contained the terms and conditions of em-
ployment for the employees in the bargaining unit. It defined
included and excluded employees as follows:
Included: Licensed Practical Nurse, Certified Nurse
Aide or Nurse Aide, Dietary Aide, Cook, Activity Aide,
Laundry, Housekeeper, Maintenance Worker, Psych./Soc.
Aide, Runner and Support Service Workers.
Excluded: Registered Nurse (DON, ADON and Clini-
cal Manager), Social Worker, Kitchen Manager, Office
Manager, Office Clerical (Receptionist/Administrative
Secretary), Ward Clerk, Volunteer Coordinator, Scheduler,
Activity Director, and all other managerial, supervisory,
and confidential employees, as defined by the Act.24
On August 29, the Union’s regional director, Joseph Bella,
sent a letter by facsimile and certified mail to Borsellino re-
questing that the Respondent recognize the Union as the bar-
gaining representative of the nursing home’s employees and
demanded to bargain:
By this letter, AFSCME Council 31 hereby requests
that Morris Health Care & Rehabilitation Center (Prism
Health Care Group, Inc.) formally recognize AFCSME
Council 31 as the exclusive representative of its employ-
ees effective as of the time and date that Prism becomes
the lessee of the Grundy County Home (It is the Union’s
understanding that the effective time and date is 12:00
a.m., September 1, 2005). AFSCME Council 31 demands
to bargain with Morris Health Care and Rehabilitation
Center on all mandatory subjects of bargaining, including,
but not limited to wages, hours and working conditions,
and issues of impact during the transition phase.
Morris Health Care & Rehabilitation Center and Prism
are hereby notified that all wages, hours and working con-
ditions must be held to status quo ante (status quo as of
August 30, 2005) during the bargaining process and until
the bargaining process is concluded. Changes in wages,
hours of work and working conditions are done at the em-
ployer’s peril. The Union will aggressively pursue back
wages and back payments of benefits and other damages
as remedy should the employer change the status quo prior
to the conclusion of bargaining.

22 The changes in these terms and conditions are established in three
respects: (1) from a comparison of the CBA and the Respondent’s
employee handbook (GC Exhs. 2, 8); (2) the credible testimony of
Loveland, Hoxie, Sereno, and Foland (Tr. 84–87, 141–142, 229, 249);
and (3) the Respondent’s concession in its brief. (R. Br. at 5–6.)
23 Jt. Exh. 2.
24 The provision referred to the Illinois Labor Relations Act.
Under the National Labor Relations Act, Morris
Healthcare & Rehabilitation Center, LLC and Prism
Health Care Group, Inc. is a “successor employer.” Under
the National Labor Relations Board’s successorship doc-
trine, if a new employer makes a conscious decision to
maintain generally the same business and to hire a major-
ity of its employees from its predecessor, the bargaining
obligation of section 8(a)(5) of the National Labor Rela-
tions Act to negotiate with the majority is activated. See
Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S.
27, 37 (1987); NLRB v. Burns Int’l Sec. Servs., 406 U.S.
272, 278–79 (1972); NLRB v. Joe B. Foods, Inc., 953 F.2d
287, 292 (7th Cir. 1992); see also 29 U.S.C. sec. 158(a)(5).
Regarding the instant case, where the successor em-
ployer is a private employer and the previous employer is
a public employer and the Union has been previously cer-
tified under the Illinois Labor Relations Act, the United
States Court of Appeals for the Seventh Circuit (Nos. 96–
3594 & 3596–3922, The Lincoln Park Zoological Society
v. NLRB and Public Service Employees Union, Local 46),
affirmed the successor employer’s obligation to recognize
the Union as the exclusive representative and to bargain
with it.
The Union is available to begin bargaining on immedi-
ate impact issues and on a collective bargaining agreement
on the following dates: August 31, September 2, 6, 8, 12,
13 and 14, 2005. Please contact me so that we may sched-
ule sessions.
If you have any questions, you can contact me at 312–
641–6060 x 4374. Thank you in advance for your coopera-
tion.25
On August 31, Bella sent another letter to Borsellino, again
by facsimile and certified mail, regarding the Union’s pending
charges against Grundy County:
Pursuant to the National Labor Relations Act and
NLRB decisions regarding obligations of successor em-
ployers, AFSCME Council 31 hereby informs you that the
Union has two unfair labor practice charges pending that
have been filed against the Grundy County Home. Under
“successorship doctrine” case law under the National La-
bor Relations Act, a successor employer is liable for set-
tlement and remedy in such cases.
I have enclosed copies of the charges the Union has
filed against the County Home. If you have any questions
concerning these charges, I can be reached at 312–641–
6060 x 4374.26
On September 6, the Respondent’s attorney, John Jeske,
Esq., responded to Bella’s letters in writing. He agreed to meet
to bargain, but disagreed with the Union’s view regarding the
Respondent’s successorship liability:
Prism Health Care Group, Inc. (“Prism”) has hired my
firm to represent it in all labor and employment matters.
As you are aware, Prism is now operating the entity com-

25 GC Exh. 4.
26 GC Exh. 6.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1366
monly known as the Grundy County Home. At this point
in time, it appears to Prism that a significant portion of the
employees hired by Prism were represented by your labor
organization. Based upon our current knowledge of the
employee’s desires, we will agree to meet with you and
bargain over the terms and conditions of employment for
Prism’s Grundy County Home employees.
Be advised that I disagree with your legal conclusions
regarding successorship liability and Prism’s exposure
concerning alleged unfair labor practices of Grundy
County.
Please direct all future correspondence and communi-
cation through my office. This letter also confirms the face
to face meeting scheduled for Tuesday at 9:00 a.m. at the
Oak Brook offices of Prism Health Care Group, Inc. 27
Sometime between August 31 and September 6, Bella re-
ceived a copy of the employee handbook from an employee
who attended one of the orientation sessions, Prior to that time,
the Union did not receive any information from the Respondent
regarding the terms or conditions of employment of the nursing
home employees after it assumed operations on September 1.
Discussion
A. Coercive Statements by Wood and Day
The complaint, at paragraphs VII(a) and (b), alleges that, on
or about August 30, Wood and Day, both supervisors within the
meaning of Section 2(11), violated Section 8(a)(1) by telling
employees that the Respondent would be operating as a nonun-
ion shop. It is further alleged that such statements indicated to
employees that it would be futile for them to select and/or sup-
port the Union as their collective-bargaining representative.
The Respondent denied the allegations, including the assertion
that Wood and Day acted as supervisors within the meaning of
Section 2(11) of the Act.
Section 7 of the Act provides, in pertinent part, that
“[e]mployees shall have the right to self-organization, to form,
join or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, and shall also have the
right to refrain from any or all such activities.” An employer
who interferes with, restrains, or coerces employees in the ex-
ercise of such rights violates Section 8(a)(1). The test does not
turn on the employer’s motive or whether the coercion suc-
ceeded or failed but, rather, whether the employer engaged in
conduct, which it may be reasonably said, tends to interfere
with the free exercise of employee rights under the Act. Gissel
Packing Co., 395 U.S. 575 (1969); Almet, Inc., 305 NLRB 626
(1991); American Freightways Co., 124 NLRB 146, 147
(1959).
The parties stipulated at trial that Wood acted as the Respon-
dent’s agent and Day acted as a supervisor when the statements
were made. Wood was essentially acting as the nursing direc-
tor, interviewed and recommended the hiring of nursing de-
partment staff. Day was, at the time she made the coercive

27 GC Exh. 7.
statement, the nursing home’s administrator. Although present
with counsel throughout the trial, she did not testify.
On at least two occasions while interviewing nursing de-
partment staff, Woods asked about their views of the Union. On
August 22, Woods asked Foland whether “it be a problem un-
ion or non-union.” Prior to August 31, Woods told Loveland
that the nursing home was “a non-union place” and then asked
if that would bother her. Around the same time, Day, the nurs-
ing home’s new administrator, told Sereno “that there couldn’t
possibly be a union because it only represents county employ-
ees” and that “for private employees it’s a different matter.”
The statements by Wood and Day conveyed two messages
from management. First, the statements strongly imply that the
Respondent would look pessimistically upon employee appli-
cants who support the Union. Secondly, they communicated the
Respondent’s view that it would be futile for employees to
support the Union. Under the circumstances, the statements by
Wood and Day constituted coercive interrogation. Bristol Nurs-
ing Home, 338 NLRB 737, 738–739 (2002); Shamrock Foods
Co., 337 NLRB 915, 918 (2002); Concrete Co., 336 NLRB
1311, 1316 (2001); Godsell Contracting, 320 NLRB 871, 873
(1996).
B. Section 8(a)(5) and (1)
The General Counsel further alleges that the Respondent, af-
ter assuming the management and operation of the nursing
home on September 1, violated Section 8(a)(5) and (1) of the
Act by making the following unilateral changes without giving
the Union notice and opportunity to bargain: (1) eliminated the
evening and weekend shift differentials; (2) changed insurance
benefits, copayments and premiums; (3) reduced the number of
paid holidays from 13 to 7; (4) changed the number and accrual
rate of sick days; (5) reduced breaktime from two 15-minute
breaks to two 10-minute breaks; (6) eliminated employee sen-
iority; (7) reduced vacation amounts and accrual rates; (8)
changed shift and days-off schedules; (9) changed a paid 30-
minute meal period to an unpaid meal period; (10) changed the
hourly wages of some employees; (11) eliminated personal
leave days; (12) eliminated longevity pay; (13) eliminated
training pay; (14) eliminated temporary assignment pay; (15)
eliminated filling of vacancy and promotional rights; (16)
eliminated layoff and recall rights; and (17) eliminated and
changed disciplinary procedure and just cause rights. The Re-
spondent concedes that most of these changes occurred when it
took over, but asserts that it was free to make such changes as it
was not a “perfectly clear” successor within the meaning of
NLRB v. Burns Security Services, 406 U.S. 272 (1972).
Section 8(a)(5) obligates an employer to bargain with its em-
ployees’ representative in good faith regarding “wages, hours
and other terms and conditions of employment.” NLRB v. Borg-
Warner Corp., 356 U.S. 342 (1958); Fiberboard Corp. v.
NLRB, 379 U.S. 203 (1964). As such, an employer must notify
and consult with its employees’ chosen union before imposing
changes in wages, hours, and conditions of employment. NLRB
v. Katz, 369 U.S. 736 (1962); NLRB v. Pinkston-Hollar Con-
struction Services, 954 F.2d 306 (5th Cir. 1992). A successor
employer, on the other hand, is usually permitted to set the
initial terms and conditions of employment when hiring their
MORRIS HEALTHCARE & REHABILITATION CENTER 1367
employees. An exception applies where it is “perfectly clear”
that
The new employer has either actively or, by tacit inference,
misled employees into believing they would all be retained
without change in their wages, hours or conditions of em-
ployment, or at least to circumstances where the new em-
ployer, unlike the Respondent here, has failed to clearly an-
nounce its intent to establish a new set of conditions prior to
inviting former employees to accept employment.
Spruce Up Corp., 209 NLRB 194, 195 (1974), enfd. per curiam
529 F.2d 516 (4th Cir. 1975). This principle applies even
though the predecessor was, like Grundy County, a public em-
ployer. See JMM Operational Services, 316 NLRB 6 (1995).
Where a successor employer tends unconditional offers of
employment to incumbent employees before announcing sig-
nificant changes in terms and conditions of employment, thus
leading employees to believe that they would be employed on
substantially the same basis as before, the “perfectly clear”
exception applies. DuPont Dow Elastomers LLC, 332 NLRB
1071 (2000), enfd. sub nom. DuPont Dow Elastomers LLC v.
NLRB, 296 F.3d 495 (6th Cir. 2002). The Board has consis-
tently found that an announcement of new terms will not justify
a refusal to bargain if, as in this case, the employer has earlier
indicated its intent to retain its predecessor’s employees with-
out indicating that employment is conditioned on acceptance of
new terms. DuPont Dow Elastomers LLC, 332 NLRB at 1074;
Planned Building Services, 330 NLRB 791, 801 (2000); Can-
teen Co., 317 NLRB 1052, 1052–1053 (1995).
In this case, the Respondent indicated its intent to retain its
predecessor’s employees without indicating that employment
would be conditioned upon their acceptance of new terms. The
transfer of the nursing home from a public employer, Grundy
County, to the Respondent was a politically sensitive transac-
tion that required reassuring public statements by Borsellino,
the Respondent’s owner, regarding the future care of the nurs-
ing home’s residents and the job security of its employees. At
the August 22 Grundy County Board meeting, Borsellino stated
the Respondent’s intention to rehire the overwhelming number
of the nursing home’s staff, except for a few with absenteeism
problems. As a result, the Grundy County Board approved the
transfer of the nursing home and a lease agreement to the Re-
spondent on the condition that the Respondent’s hiring process
defer to the incumbent staff, including senior management and
the medical director. Borsellino essentially repeated his re-
marks during an interview on a local radio show and added that
there would be a smooth transition, everything would remain
the same, and most staff would be rehired, except for a few
employees with absenteeism problems. Indeed, pursuant to its
hiring agreement, the Respondent did not place advertisements
in the local media until August 31—after nearly all existing
staff had been rehired.
It is undisputed that the dietary, maintenance, and activities
staff were informed of their wage rates at the time they were
hired; none, however, were informed of their fringe benefits.
Nursing department employees were interviewed by Woods,
but were left in the dark until Minor told them, as she walked
through their units one day near the end of August, that they
were hired; Minor did not inform them about the terms and
conditions of employment. All employees were informed about
their fringe benefits during orientation and nursing department
employees were informed of their wage rates when they re-
ceived their first paycheck 3 weeks later. The fringe benefits
package explained at orientation was a change from the terms
and conditions set forth in the CBA. None of the rehired em-
ployees received a wage reduction and some received higher
wage rates.
It is also undisputed that, prior to changing such terms and
conditions of employment, the Respondent was aware that ex-
isting staff were represented by the Union. On August 29 and
31, the Union notified the Respondent in writing of its position
that it was a successor employer, demanded to bargain, and
asserted that the Respondent was obliged to maintain the exist-
ing terms and conditions of employment. The Respondent rec-
ognized the Union, but only after changing the terms and condi-
tions of employment. Under the circumstances, it was perfectly
clear at the time employees were hired that the Union’s major-
ity status would continue at the nursing home under the Re-
spondent. Thus, the Respondent was obligated to recognize and
bargain with the Union prior to changing any of the terms and
conditions of employment. Dow Elastomers LLC, 332 NLRB at
1075.
Furthermore, because Minor and Day made coercive state-
ments, the Respondent is equitably estopped from unilaterally
setting the initial terms and conditions of employment. Woods
and Minor made the statements to three CNA’s, including
Loveland, the former union president, and Foland, the current
union president, indicating that support for the Union was a
futility and possibly harmful to their hiring prospects. These
statements came during the critical hiring period that might
otherwise have been subjected to protected concerted activity
had employees not been subjected to a combination of coercive
statements regarding union activity and uncertainty regarding
their terms and conditions of employment. Accordingly, the
Respondent shall be required to restore the terms and condi-
tions of employment under the CBA until it negotiates a new
contract with the Union or negotiates to impasse. The Concrete
Co., supra at 1315–1316. See also, Advanced Stretchforming
International, 323 NLRB 529, 531 (1997), enfd. in part and
remanded for further consideration 233 F.3d 1176 (9th Cir.
2000); U.S. Marine Corp., 293 NLRB 669, 672 (1989). To hold
otherwise is tantamount to allowing the Respondent to gain
from the uncertainty created by its misconduct. See State Dis-
tributing Co., 282 NLRB 1048, 1048–1050 (1987).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The following employees in the Respondent’s Morris, Il-
linois nursing home facility comprised a duly constituted bar-
gaining unit within the meaning of Section 9 of the Act:
Included—Licensed Practical Nurse, Certified Nurse Aide or
Nurse Aide, Dietary Aide, Cook, Activity Aide, Laundry,
Housekeeper, Maintenance Worker, Psych./Soc. Aide, Run-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1368
ner and Support Service Workers; Excluded—Registered
Nurse (DON, ADON and Clinical Manager), Social Worker,
Kitchen Manager, Office Manager, Office Clerical (Recep-
tionist/Administrative Secretary), Ward Clerk, Volunteer Co-
ordinator, Scheduler, Activity Director, and all other manage-
rial, supervisory, and confidential employees, as defined by
the Act.
4. By (1) telling employees or job applicants that it will op-
erate with no union when it was, in fact, obligated to recognize
and bargain with the Union for and on behalf of members of the
bargaining unit, and (2) asking employees during job interviews
about their views of the Union, the Respondent violated Section
8(a)(1) of the Act.
5. By unilaterally changing the wages, benefits, and other
terms and conditions of employment for members of the bar-
gaining unit without first bargaining with the Union, the Re-
spondent engaged in an unfair labor practice within the mean-
ing of Section 8(a)(5) and (1) of the Act.
6. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]