Palm Court Nursing Home NH LLC

National Labor Relations Board - Board Decisions

Apr 30, 2004

341 N.L.R.B. 813 (N.L.R.B. 2004)

PALM COURT NURSING HOME N.H., L.L.C. 813
Palm Court Nursing Home N.H., L.L.C. and Hidden
Palm ALF, L.L.C., Joint Employers and Service
Employees International Union, Local 1199
Florida, AFL–CIO, CLC. Cases 12–CA–22564
and 12–CA–23071
April 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On November 7, 2003, Administrative Law Judge
George Carson II issued the attached decision. The Re-
spondent filed exceptions1 and a supporting brief, and
the General Counsel filed an answering brief and a Mo-
tion to Strike the Respondent’s exceptions and brief.2
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,3 and conclusions,4

1 No exceptions were filed to the judge’s finding that the Respondent
violated Sec. 8(a)(5) and (1) of the Act by refusing to meet with the
Union because of the composition of its bargaining committee, or to his
recommended dismissal of the allegation that the Respondent violated
the Act by unilaterally changing the employees’ dress code.
2 The General Counsel has moved to strike the Respondent’s excep-
tions and brief on the grounds that they do not fully comply with the
requirements of Sec. 102.46 of the Board’s Rules and Regulations. We
find that the Respondent’s exceptions and brief together sufficiently
designate the Respondent’s points of disagreement with the judge’s
decision even though they are not fully in compliance with the literal
requirements of Sec. 102.46. Accordingly, the General Counsel’s
motion to strike is denied.
3 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.
4 The judge found that the Respondent’s July 18, 2002 letter, which
referenced proposed changes in employee benefits for “employees
covered under the collective bargaining agreements for Greystone,”
clearly did not apply to the Palm Court employees who were not at that
time covered under a collective-bargaining agreement. (Greystone
Health Care Management managed the Palm Court facility as well as
seven other facilities in Florida that had collective-bargaining agree-
ments with the Union.) The Respondent argues, however, that because
the July 18 letter was addressed to Union Secretary-Treasurer Dale
Ewart, who was directly responsible for representing the Palm Court
employees, Ewart should not have disregarded the letter as inapplicable
to Palm Court, but rather should have understood that the letter was
intended to apply to the Palm Court employees. We disagree with the
Respondent. In addition to his Palm Court responsibilities, Ewart also
supervised two union representatives who were responsible for repre-
senting employees covered by collective-bargaining agreements at
other Greystone facilities to which the letter did apply. Because the
letter could have been sent to Ewart in his supervisory capacity, there
and to adopt the recommended Order as modified and set
forth in full below.5
ORDER
The National Labor Relations Board orders that the
Respondent, Palm Court Nursing Home N.H., L.L.C. and
Hidden Palm ALF, L.L.C., Fort Lauderdale, Florida, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to meet with Service Employees Interna-
tional Union, Local 1199 Florida, AFL–CIO, CLC be-
cause of the composition of its bargaining committee.
(b) Unilaterally changing unit employees’ working
conditions by instituting a 401(k) plan.
(c) Unilaterally increasing unit employee contributions
for prescription drugs and the cost of using other than
“preferred providers.”
(d) Unilaterally reducing unit employees’ paid holi-
days, jury duty days, and sick days.
(e) Unilaterally increasing the time required for ad-
vance notification for absences or tardiness.
(f) Unilaterally ceasing to provide unit employees with
overtime pay for hours over 8 required to be worked in a
single day.
(g) 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) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:

All full-time and regular part-time certified nursing as-
sistants, restorative nursing assistants, activity aides,
central supply clerks, medical records clerks, dietary
aides, cooks, housekeeping aides, housekeeping em-
ployees, laundry aides, laundry employees, porters and

was no reason for Ewart to have understood, contrary to the plain
meaning of the letter, that the benefit changes discussed in the letter
were intended to be applicable to Palm Court. We agree with the judge
that the letter on its face did not apply to Palm Court, and we find that
nothing in the fact that the letter was addressed to Ewart reasonably
should have alerted him to any proposed benefit changes at the Palm
Court facilities.
5 We shall modify the judge’s recommended Order to provide that,
upon request of the Union, the Respondent shall rescind the unilaterally
instituted 401(k) plan. In addition, the Respondent shall be ordered to
rescind any discipline issued to employees as a result of the unilateral
change in the absentee policy and to make employees whole for any
losses resulting from the change. Finally, we shall substitute a new
notice in accordance with Ishikawa Gasket America, Inc., 337 NLRB
175 (2001).
341 NLRB No. 113
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 814
maintenance employees, and unit secretaries employed
at the Respondent’s facilities located at 2675 North
Andrews Avenue and 2675-A North Andrews Avenue,
Fort Lauderdale, Florida; excluding all other employ-
ees, professional employees, technical employees, con-
fidential employees, guards and supervisors as defined
in the Act.

(b) Upon the request of the Union, rescind the 401(k)
plan, the increase in employee contributions for prescrip-
tion drugs and the cost of using other than “preferred
providers,” the reduction in the number of paid holidays,
jury duty days, and sick days, the increase in the time
required for advance notification for absences or tardi-
ness, and the cessation of overtime payment for hours
over 8 required to be worked in a single day.
(c) Make whole all unit employees affected by the in-
crease in contributions for prescription drugs and the cost
of using other than “preferred providers,” in the manner
set forth in the remedy section of the decision.
(d) Make whole all unit employees for any pay lost as
a result of the reduced number of paid holidays, jury duty
days, and sick days extended to employees, in the man-
ner as set forth in the remedy section of the decision.
(e) Make whole all unit employees who were deprived
of overtime pay for hours over 8 required to be worked
in a single day after April 28, 2003.
(f) Rescind any discipline issued to unit employees as
a result of the increase in the time required for advance
notification for absences or tardiness.
(g) Make whole all unit employees for any losses re-
sulting from the increase in the time required for advance
notification for absences or tardiness, with interest com-
puted in the manner set forth in the remedy section of the
decision.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amounts of backpay due
under the terms of this Order.
(i) Within 14 days after service by the Region, post at
its facilities in Fort Lauderdale, Florida, copies of the
attached notice marked “Appendix.”6 Copies of the no-

6 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.”
tice, on forms provided by the Regional Director for Re-
gion 12, after being signed by the Respondent’s author-
ized 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 al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since September
24, 2002.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing 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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any 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 refuse to meet with Service Employees
International Union, Local 1199 Florida, AFL–CIO,
CLC because of the composition of its bargaining com-
mittee.
WE WILL NOT unilaterally, without notifying and bar-
gaining with the Union, change your working conditions
by instituting a 401(k) plan; increasing your contribu-
tions for prescription drugs and the cost of using other
than “preferred providers”; reducing your paid holidays,
jury duty days, and sick days; increasing the time re-
quired for advance notification for absences or tardiness;
and ceasing to provide overtime pay for hours over 8
required to be worked in a single day.

PALM COURT NURSING HOME N.H., L.L.C. 815
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, upon the request of the Union, bargain with
the Union as your exclusive bargaining representative in
the following appropriate unit concerning your terms and
conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:

All full-time and regular part-time certified nursing as-
sistants, restorative nursing assistants, activity aides,
central supply clerks, medical records clerks, dietary
aides, cooks, housekeeping aides, housekeeping em-
ployees, laundry aides, laundry employees, porters and
maintenance employees, and unit secretaries employed
at our facilities located at 2675 North Andrews Avenue
and 2675-A North Andrews Avenue, Fort Lauderdale,
Florida; excluding all other employees, professional
employees, technical employees, confidential employ-
ees, guards and supervisors as defined in the Act.

WE WILL, upon the request of the Union, rescind the
401(k) plan, the increase in unit employee contributions
for prescription drugs and the cost of using other than
“preferred providers,” the reduction in the number of
paid holidays, jury duty days, and sick days, the increase
in the time required for advance notification for absences
or tardiness, and the cessation of overtime payment for
hours over 8 required to be worked in a single day.
WE WILL make whole all unit employees affected by
the increase in contributions for prescription drugs and
the cost of using other than “preferred providers.”
WE WILL make whole all unit employees for any pay
lost as a result of the reduced number of paid holidays,
jury duty days, and sick days extended to employees.
WE WILL make whole all unit employees who were de-
prived of overtime for hours over 8 required to be
worked in a single day after April 28, 2003.
WE WILL rescind any discipline issued to unit employ-
ees as a result of the increase in the time required for
advance notification for absences or tardiness.
WE WILL make whole all unit employees for any losses
resulting from the increase in the time required for ad-
vance notification for absences or tardiness.

PALM COURT NURSING HOME N.H., L.L.C. AND
HIDDEN PALM ALF, L.L.C.

Jill Guarascio and Jennifer Burgess-Solomon, Esqs., for the
General Counsel.
David F. Jasinski, Esq., for the Respondent.
Dale Ewart, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Miami, Florida, on September 2 and 3, 2003.1 The
consolidated complaint issued on July 30, 2003.2 Pursuant to a
private settlement between the Charging Party and Respondent,
I approved the request of the Charging Party to withdraw the
charge in Case 12–CA–22990, and that case number is no
longer reflected in the caption. Pursuant to the withdrawal of
the charge, I severed that case and dismissed the complaint
allegations predicated upon that charge. The remaining portions
of the complaint allege a refusal to bargain and various unilat-
eral changes in violation of Section 8(a)(5) of the Act. The
Respondent’s answer denies any violation of the Act. I find that
the Respondent did violate Section 8(a)(5) of the Act substan-
tially as alleged in the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Palm Court Nursing Home N.H., L.L.C., a
Delaware corporation, is engaged in the operation of a nursing
home in Fort Lauderdale, Florida, at which it annually derives
gross revenues in excess of $100,000 and purchases and re-
ceives goods valued in excess of $10,000 directly from points
located outside the State of Florida.
The Respondent, Hidden Palm ALF, L.L.C., a Delaware
corporation, is engaged in the operation of an assisted living
facility in Fort Lauderdale, Florida, at which it annually derives
gross revenues in excess of $100,000 and purchases and re-
ceives goods valued in excess of $10,000 directly from points
located outside the State of Florida.
The amended answer admits that the foregoing entities,
herein collectively referred to as the Company or the Respon-
dent, constitute a joint employer, and I find and conclude that
the Company is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that Ser-
vice Employees International Union, Local 1199 Florida, AFL–
CIO, CLC (the Union) is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Prior to March 2002, the facilities at Fort Lauderdale had
been operated by a management group identified in the record
as Broadway Health Care. In March, Greystone Health Care
Management began operating the facilities. In addition to the
Palm Court and Hidden Palm facilities in Fort Lauderdale,

1 All dates are in 2002 unless otherwise indicated.
2 The charge in Case 12–CA–22564 was filed on October 18 and
was amended on January 22, 2003. The charge in Case 12–CA–23071
was filed on June 2, 2003.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 816
Greystone began managing seven other facilities in Florida that
had formerly been managed by Broadway, all of which had
collective-bargaining agreements with the Union. Greystone
also manages facilities in states other than Florida.
On April 25, the Union was certified as the exclusive collec-
tive-bargaining representative of employees in the following
unit at Palm Court and Hidden Palm:

All full-time and regular part-time certified nursing assistants,
restorative nursing assistants, activity aides, central supply
clerks, medical records clerks, dietary aides, cooks, house-
keeping aides, housekeeping employees, laundry aides, laun-
dry employees, porters and maintenance employees employed
at the Respondent’s facilities located at 2675 North Andrews
Avenue and 2675-A North Andrews Avenue, Ft. Lauderdale,
Florida; excluding all other employees, professional employ-
ees, technical employees, confidential employees, guards and
supervisors as defined in the Act.

On July 23, 2003, the Regional Director approved a stipula-
tion by the parties that added the position of unit secretary to
the foregoing unit.
On April 30, the Union sent to the Company a request for in-
formation that included a request for employee names and ad-
dresses, “current company personnel policies” and “all com-
pany fringe benefit plans.” The information relating to employ-
ees was provided by letter dated August 20. The remainder of
the information was provided on November 27.
Rita Lemon is director of human resources and labor rela-
tions for Greystone. Lemon has responsibility for all of the
facilities managed by Greystone in Florida: the seven facilities
with collective-bargaining agreements and Palm Court and
Hidden Palm in Fort Lauderdale. Lemon’s office is in Tampa,
Florida. She assumed her duties on March 10, when Greystone
assumed management of the Florida facilities. On July 18,
Lemon wrote SEIU Local 1199, “Attention: Mr. Dale Ewart.”
Ewart is secretary-treasurer of SEIU Local 1199. The letter
states that Lemon wished “to provide information concerning a
change in the employee benefits that we would like to make
effective August 1, 2002, for all employees covered under the
collective-bargaining agreements for Greystone . . . .” (Em-
phasis added.) The letter then explains that the proposed
changes would relate to replacing the current health care pro-
viders at the facilities with collective-bargaining agreements
with a new provider, Allied Benefits, and that certain benefits
would also change. The letter, in the first paragraph on the sec-
ond page, notes: “At the same time as the enrollment for medi-
cal and dental coverage, we are offering participation in a 401K
plan.” The letter concludes by requesting the Union to “review
the enclosed benefit summary for the medical and dental
plans,” and invites the Union to discuss the proposed action if it
should wish to do so. It is undisputed that the Union made no
request to bargain at the facilities with collective-bargaining
agreements and the change in providers was made at those
locations.
The change in the medical administrator and benefits was
also made at Palm Court and Hidden Palm effective August 1.
The Union filed no charge, and there is no complaint allegation
regarding the change in carriers or changes in health benefits in
August.
B. Facts
The parties met for their first negotiating session on Septem-
ber 24. The union negotiating committee consisted of Ewart,
organizer Gertha Joseph, employee Marianne Raymond, and
employee Pauline Grant-Clarke, a unit secretary. The company
committee was composed of Attorney David Jasinski, Director
Lemon, and Linda Withers who was the administrator at Palm
Court and Hidden Palm at that time. At the outset of the meet-
ing, Attorney Jasinski objected to the presence of unit secretary
Grant-Clarke, stating that “she had access to confidential in-
formation, [t]hat she was an individual whose interests were
more aligned with that of management, [t]hat she was involved
in the transfer of CNS’s [and that her] job was not part of the
bargaining unit.”
Ewart noted that Grant-Clarke was on the Excelsior list, had
voted without challenge, and was included on the list of em-
ployees furnished to the Union by Lemon on August 20. Jasin-
ski asserted that the Company had made a mistake in including
Grant-Clarke on the Excelsior list. Ewart pointed out that, even
if Grant-Clarke was not in the unit, “the Union had the right to
compose its committee as it saw fit.”
Ewart asked to which records Grant-Clarke had access. Fol-
lowing a caucus of the company committee, Lemon advised
that the Company would “get back” with that information. No
information was thereafter provided. This record does not es-
tablish the nature of any confidential information to which
Grant-Clarke had access nor does it establish that she was in-
volved in the transfer of CNAs.
Attorney Jasinski informed Ewart, “[W]e could not continue
to go forward with the negotiation while Ms. Grant-Clarke sat
there on behalf of the Union.” The Union refused to dismiss
Grant-Clarke from the negotiating committee. In view of Jasin-
ski’s statement, the Union did not appear at the negotiating
session scheduled for September 25.
Almost 4 months later, on January 16, 2003, the Company
advised the Union that “any differences concerning the compo-
sition of the bargaining unit must be set aside” and that it pro-
posed to continue negotiations “with your selected bargaining
committee.” The parties met for their second and third negotiat-
ing sessions on February 13 and 14, 2003.
On November 27, during the bargaining hiatus, the Company
provided a package of information to the Union pursuant to its
information request of April 30. The package included the then-
current employee handbook and a two-page sheet listing em-
ployee benefits.
Secretary-Treasurer Ewart testified that the two-page sheet
that he identified at the hearing, General Counsel’s Exhibit
12(c) (GC 12(c)), was the sheet that he received. Attorney
Jasinski, who testified on behalf of the Respondent, asserted
that the sheet he sent to Ewart was Respondent’s Exhibit
2(SUB 45 & 46) (R. 2(SUB 45 & 46). Resp. 2(SUB 45 & 46)
differs from GC 12(c) in that it provides for 9 rather than 11
holidays and for 8 rather than 10 sick days. Resp. 2(SUB 45 &
46) does not list Martin Luther King Day, Good Friday, and
Columbus Day as holidays, but it provides for two, rather than

PALM COURT NURSING HOME N.H., L.L.C. 817
one, personal days. The net loss is two holidays. The format of
both documents is similar, but not identical. The document
Ewart testified that he received (GC 12(c)) does not contain an
initial statement appearing on Resp. 2(SUB 45 & 46), that
“BENEFITS AS OUTLINED BELOW ARE NOT
AVAILABLE TO EMPLOYEES ELECTING A HIGHER
RATE OF PAY AS ‘NO BENEFIT’ STATUS.” The initial
paragraph of both documents refers to an entity identified as
Gardenview, stating, “Gardenview has selected Allied Benefits
to be the third party administrator” of its health care benefits.
Attorney Jasinski identified Gardenview as a facility adminis-
tered by Greystone in Baltimore, Maryland.
Ewart first became aware of the change in holidays when
bargaining unit employees reported to him that they had not
been paid for Martin Luther King Day in 2003. Employee
Grant-Clarke corroborated Ewart, explaining that she first be-
came aware of the reduction in holidays when employees were
not paid for Martin Luther King Day in January 2003, and that
she brought this to the attention of the Union at that time.
The Union raised the matter of the Martin Luther King Day
holiday when the parties resumed negotiations on February 13,
2003. Ewart testified that Lemon stated that she would look
into it. Ewart was unable to attend the fourth negotiating ses-
sion, which was held on April 7, 2003. Organizer Gertha Jo-
seph was spokesperson for the Union in that meeting. Joseph
again raised the matter of the Martin Luther King Day holiday,
and referred to the document (GC 12(c)), listing 11 holidays
that she had obtained from Ewart’s files. Attorney Jasinski
stated to Joseph, “I don’t know where you got that.” Joseph
responded, “We got that from the packet that you sent us.”
Lemon recalls informing Joseph, “[T]hat’s why we went with
the two personal days,” noting that an employee could take a
personal day on Martin Luther King Day if the employee so
desired. Although, as already noted, Jasinski testified that he
provided a different document to Ewart in the information he
sent on November 27, he did not provide that document to Jo-
seph when he questioned where she had obtained the document
that was in her possession. When responding to the charge
herein relating to the alleged unilateral changes, Attorney Jasin-
ski provided a position statement that attached a document that
reflected the reduced holidays and sick days; however, in the
initial paragraph of that document, rather than the reference to
Gardenview, the document states “this facility.” Attorney Jasin-
ski acknowledged providing that document and admitted to the
foregoing difference in wording. That document was not of-
fered into evidence.
I credit Ewart and find that he was provided with the docu-
ment reflecting 11 holidays and 10 sick days (GC 12 (c)). The
record contains no explanation regarding the third document,
provided with the Company’s position statement, referring to
“this facility” rather than Gardenview. The vacation days and
sick days, 11 and 10 respectively on GC 12(c) and 9 and 8 on
Resp. 2(SUB 45 & 46), appear on the second page of these
similarly formatted documents. No explanation was offered
regarding how the sheet Ewart identified that he received would
have come into his possession other than by delivery from the
Company. I find, consistent with the testimony of Ewart, that
the Company, when responding to the Union’s information
request regarding employee benefits, provided him with the
document identified as GC 12(c) which provides for 11 holi-
days, 10 sick days, and 15 days of jury duty pay.
Director Lemon testified that, when she wrote the Union on
July 18, 2002, advising of the proposed change in health care
carriers “for all employees covered under the collective-
bargaining agreements,” in addition to the specific summary
relating to the medical and dental plans to which her letter re-
ferred, she also attached a two-page document that briefly
summarized those benefits as well as holidays, sick days, and
jury duty pay. The summary does not reflect the 401(k) plan.
The summary that Lemon asserted she attached to the letter is
identical to Resp. 2 (SUB 45 & 46) that Attorney Jasinski
claims he provided to Ewart, including the reference to em-
ployees electing “no benefit” status and “Gardenview” having
selected Allied Benefit as its medical plan administrator. Ewart
denied that the two-page summary was attached. Regardless of
whether the purported summary was attached, Lemon’s letter of
July 18 makes no mention of Palm Court or Hidden Palm. It
relates only to facilities with collective-bargaining agreements.
Once negotiations began, the Respondent made it clear that it
would not agree to the contractual language in effect at Green-
stone’s other seven Florida locations at Palm Court and Hidden
Palm. Attorney Jasinski, in a letter dated November 13, chas-
tises the Union for insisting upon contractual “language negoti-
ated with other facilities.” The record does not reflect the provi-
sions of those agreements with regard to holidays and sick days
or whether the benefits in the summary purportedly attached to
Lemon’s letter correctly reflected the benefits that are provided
by those collective-bargaining agreements.
Lemon testified that, effective August 1, in addition to the
new health plan, Greystone implemented the 401(k) plan as
well as its policies regarding holidays, sick days, and jury duty
pay at Palm Court and Hidden Palm. Lemon further testified
that employees were advised of these changes, as well as the
changes in medical carriers and benefits, at a meeting that she
conducted in July in Fort Lauderdale. Employee Pauline Grant-
Clarke testified that she recalled no such meeting conducted by
Lemon, that the administrator, who at that time was Linda
Withers, typically conducted such meetings. She does not recall
seeing Lemon until September 24, when she met her at the first
negotiating session. Lemon was not recalled to rebut Grant-
Clarke’s testimony that the first time Grant-Clarke saw her was
on September 24. No documents reflecting travel by Lemon to
the Fort Lauderdale facility between July 18, the date of her
letter to the Union, and August 1 were offered into evidence.
Employee Pauline Grant-Clarke testified that she first be-
came aware of the change in holidays when employees were
not paid for Martin Luther King Day in 2003, and of the 401(k)
plan when she saw an application form in February 2003. Sec-
retary-Treasurer Ewart testified that he was unaware that em-
ployees at Palm Court and Hidden Palm were being offered
participation in a 401(k) plan until sometime in the spring of
2003.
I credit Grant-Clarke. There is no evidence corroborating
Lemon’s claim that she addressed the Fort Lauderdale employ-
ees in July, and I do not credit her testimony that she did so. I
find it incredible that employees would not have protested to

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 818
the Union about the reduction in holidays and sick days if
Lemon had, in fact, informed them of those reductions in July. I
further note that, when the Union raised the matter of the Mar-
tin Luther King holiday in 2003, Lemon referred to personal
days. She did not respond that she had announced the elimina-
tion of the holiday the previous July.
In its brief, the Respondent argues that employees were not
paid for the Columbus Day holiday in October 2002. There is
no probative evidence to this effect in the record. I have not
credited Lemon’s testimony that she announced a change in
holidays, and I do not credit her testimony that the change was
implemented on August 1. In November, the Company pro-
vided information to the Union (GC 12(c)), reflecting 11 holi-
days. No payroll records reflecting the absence of holiday pay
for Columbus Day in October 2002 were offered into evidence.
The Respondent’s brief notes that Grant-Clarke acknowledged
that she was told that Columbus Day had been eliminated as a
holiday. Grant-Clarke testified that, when she was not paid for
Martin Luther King Day, she spoke with the employee who
handled payroll and was informed that both days had been “cut
out” and that employees “were no longer going to be paid for
those two days.” The foregoing statement referred only to a
prospective absence of holiday pay for Columbus Day.
On August 18, Ewart wrote the Company and again re-
quested that the information that he had initially sought on
April 30 be provided. In the letter he also accused the Company
of making “numerous unilateral changes.” Ewart testified that
the reference to unilateral changes related “primarily” to failure
to grant anniversary wages to employees as set out in a letter
from former Internal Organizing Director Hill to Lemon dated
May 31, and to “minor procedural changes” affecting house-
keeping employees as set out in a letter from organizer Joseph
dated July 10. The Respondent’s brief notes that Ewart did not
specify the changes to which he was referring, implying that it
may have related to the changes that the Company alleges were
announced by Lemon to employees in July. Confirmation that
Lemon understood that Ewart’s letter related to problems with
anniversary raises and housekeeping is established by her re-
sponse to Ewart, dated August 20. The response assures the
Union that employees had received their appropriate raises and
notes the changes in the housekeeping department. It includes
the information relating to employees that the Union had re-
quested on April 30. It does not assert that the information re-
lating to benefits had been provided.
In late February 2003, the Company distributed a memoran-
dum to employees reflecting changes in its medical plan effec-
tive March 1, 2003. The changes included an increase in em-
ployee copayments for prescription drugs, including an increase
in the cost of generic drugs ordered by mail, and a decrease in
payment for visits to other than “preferred providers.” Em-
ployee Grant-Clarke provided the document that had been dis-
tributed to employees to organizer Gertha Joseph. There was no
notice to or bargaining with the Union regarding the March 1,
2003, changes in the medical plan.
On April 28, 2003, the Company distributed a new employee
handbook. In reviewing that handbook, Ewart and organizer
Joseph became aware that the Company had reduced sick days
from 10 to 8 and days for which employees would be paid for
jury duty from 15 to 10.
The handbook provided to the Union in the information
packet sent on November 27 does not specify holidays or sick
leave. Those benefits, 11 holidays and 10 days of sick leave,
are reflected in GC 12(c), the document provided to the Union
in the packet sent on November 27. Jury duty pay, a maximum
of 15 days of pay for employees called to jury duty, is reflected
on GC 12(c) as well as in the former handbook. The new em-
ployee handbook provides for 9 holidays, 8 days of sick leave,
and 10 days of jury duty pay. The document that Attorney
Jasinski acknowledges sending Ewart, although providing for
only 9 holidays and 8 days of sick leave, provides for up to 15
days pay for jury duty.
Director Lemon testified that in August 2002, which would
have been after the change in medical providers but prior to
November 27 when Attorney Jasinski provided the Union with
the then current employee handbook for employees at Palm
Court and Hidden Palm, she met with Union Representative
Christi Costello. Costello was responsible for administering the
collective-bargaining agreements for the facilities on the Flor-
ida West Coast. Lemon and Costello met to finalize the collec-
tive-bargaining agreement for Colonial Health Care, now iden-
tified as Lexington. Lemon testified that, at that meeting, she
gave Representative Costello a copy of the draft of the new
handbook. Lemon asked if she should forward a copy of the
draft to Ewart and recalls that Costello replied that she “didn’t
think it made any difference because . . . they were not going to
accept or deny anything that was in there, that I needed to do
what I needed to do.”
Lemon did not testify that she informed Costello of any pro-
posed distribution date for the new handbook. The draft of the
handbook that Lemon testified that she presented to Costello
was not offered into evidence; thus there is no evidence regard-
ing what it provided. Assuming that its draft provisions consti-
tuted notice to the Union of proposed changes at the facilities
with collective-bargaining agreements, there is no evidence that
the Company notified the Union of proposed changes in the
status quo at the facilities in Fort Lauderdale prior to their im-
plementation.
In January, the Company failed to pay holiday pay for Mar-
tin Luther King Day. Although the Union had learned about
that failure, there is no credible evidence that the Union was
aware that the failure occurred pursuant to a change in holidays
until the bargaining session of April 7, 2003, when Lemon
referred to the employees having two personal days. It did not
become aware of the extent of the reduction in holidays until it
reviewed the new handbook. There is no evidence that the Un-
ion was aware of the reduction in sick days or of the reduction
in days for which employees would be paid for jury duty prior
to receipt of the new handbook. The employee handbook that
the Respondent admitted providing to the Union in November
in response to its information request provides that employees
who are going to be absent or tardy must notify their supervisor
“at least one hour” before the shift begins and that employees
who are required to work overtime receive overtime pay for
hours worked over 8 in a single day and 80 in a pay period. The
handbook distributed on April 28, 2003, requires “(2) two hours

PALM COURT NURSING HOME N.H., L.L.C. 819
advance notice” for employees working on day shift and “(4)
four hours” notice for employees working on the evening or
night shifts. The overtime policy no longer provides overtime
for hours worked over 8 in a single day if the employee is re-
quired to work overtime. There was no notice to or bargaining
with the Union concerning the changed policies as reflected in
the handbook distributed to employees at the Fort Lauderdale
facilities on April 28, 2003.
C. Analysis and Concluding Findings
The complaint, in subparagraph 8(a), alleges that the Re-
spondent, from September 24 until February 13, 2003, refused
to bargain because the Union’s bargaining committee included
an employee who the Respondent asserted was a confidential
employee who was not in the unit. The Respondent, in its brief,
argues that the Union “insisted upon the . . . inclusion in the
bargaining unit of Pauline Grant-Clarke.” The foregoing argu-
ment is unsupported by any record evidence. When the Re-
spondent objected to Grant-Clarke’s presence, the Union
pointed out that she had voted without challenge. The Respon-
dent asserted that this was a mistake on its part. Ewart then
noted that, even if Grant-Clarke was not in the unit, “the Union
had the right to compose its committee as it saw fit.” The only
insistence established by the evidence is Attorney Jasinski’s
statement to the Union, “[W]e could not continue to go forward
with the negotiation while Ms. Grant-Clarke sat there on behalf
of the Union.”
It is well established that to be found to be a confidential
employee there must be a “labor nexus.” The fact that an em-
ployee has access to nonlabor related matters, even though
confidential, is “irrelevant to the determination of whether [a]
secretary [is] a confidential employee.” NLRB v. Hendricks
County Rural Electric Membership Corp., 454 U.S. 170, 191–
192 (1981). Although the Respondent objected to Grant-
Clarke’s participation in negotiations because of her purported
access to confidential information and “transferring CNAs,”
there was no evidence presented at the hearing regarding either
of these contentions. In view of the Respondent’s later agree-
ment that Grant-Clarke could serve upon the Union’s negotiat-
ing committee, it is obvious that there was no claim that she
was a supervisor. Even assuming that Grant-Clarke, as a unit
secretary, had access to confidential information relating to
patients or residents, there is no evidence that she had access to
labor related information regarding unit employees. Although
the Respondent correctly argues that the position of unit secre-
tary was not included in the unit description, the Respondent
fails to note that the unit description does exclude confidential
employees. Despite this exclusion, her name appears on the
Excelsior list, and she voted without challenge. Although At-
torney Jasinski asserted that this was a “mistake,” when the
Union requested evidence supporting the Respondent’s conten-
tion that she was a confidential employee, the Respondent
stated that it would “get back” with the information. No infor-
mation was provided.
Even if Grant-Clarke was not properly a member of the unit
as it was constituted at that time, the Union had the right to
include her on its negotiating committee. Longstanding prece-
dent establishes that “[e]mployers and unions have the right ‘to
choose whomever they wish to represent them in formal labor
negotiations.’ General Electric Co. v. NLRB, 412 F.2d 512, 516
(2d Cir. 1969).” Parties must deal with the chosen representa-
tives who appear at the bargaining table except in the rare cir-
cumstance when the “the presence of a particular representative
. . . makes collective bargaining impossible or futile.” Fitzsi-
mons Mfg. Co., 251 NLRB 375, 379 (1980). See also R.E.C.
Corp., 307 NLRB 330, 333 (1992). As argued by the General
Counsel, there is no evidence that the presence of Grant-Clarke
constituted an “exceptional circumstance” that permitted the
Respondent to refuse to bargain.
Following the filing of the charge in Case 12–CA–22564, the
Respondent advised that it would set aside “any differences
concerning the composition of the bargaining unit” and would
negotiate “with your selected bargaining committee.” The Re-
spondent, when agreeing to bargain, did not repudiate its prior
conduct. See Passavant Memorial Hospital, 237 NLRB 138
(1978). I find that by refusing to bargain for approximately 4
months, the Respondent violated the Act.
The complaint alleges in subparagraph 8(b) that the Respon-
dent unilaterally instituted a 401(k) plan for its employees in
late February 2003. On the basis of the credited evidence, the
first occasion upon which employees learned that they were
eligible for the benefit of a 401(k) plan was when enrollment
applications appeared, and employee Grant-Clarke testified that
they did so in February 2003. Neither of the benefit summaries,
either the one received by Ewart or the one that Jasinski asserts
he sent, reflects the presence of a 401(k) plan. I have not cred-
ited Lemon’s testimony that she conducted a meeting at Fort
Lauderdale in July. Even if Linda Withers, the former adminis-
trator, had informed employees that, in addition to enrolling in
the new medical and dental plans, they could also enroll in a
newly instituted 401(k) plan, that announcement to employees
would not constitute notice to the Union. See Pilgrim Indus-
tries, 302 NLRB 591, 594 (1991). I find that the first occasion
upon which the Union was aware that the Respondent was of-
fering employees a 401(k) plan was when employee Grant-
Clarke reported this in late February 2003. By instituting the
benefit of a 401(k) plan without notice to or bargaining with the
Union, the Respondent violated Section 8(a)(5) of the Act.
The complaint, in subparagraph 8(c), alleges that the Re-
spondent, on or about March 31, 2003, “changed its employees’
medical insurance plan, including increasing employees’ co-
payment for prescription drugs.” As described above, the
document announcing this change was distributed in late Feb-
ruary. Although the complaint alleged the change as occurring
on March 31, 2003, the document establishes that the change
was effective March 1, 2003. In addition to increasing the cost
of prescription drugs, the cost to employees being treated by
physicians other than “preferred providers” was increased from
30 to 50 percent. There is no evidence that there was any notice
to or bargaining with the Union prior to the announcement and
implementation of these changes that clearly increased employ-
ees’ health benefits cost. The Respondent, in its brief, does not
address the foregoing changes in benefits. By unilaterally in-
creasing the employee contribution for various aspects of their
health care, the Respondent violated Section 8(a)(5) of the Act.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 820
Subparagraph 8(d) alleges a reduction in the number of paid
holidays, paid jury duty days, and paid sick days on or about
April 28, 2003, the date the new employee handbook was dis-
tributed to employees. The Respondent argues that this allega-
tion is barred by Section 10(b) because the Union was placed
on notice of these changes by Lemon’s letter of July 18 to Sec-
retary-Treasurer Ewart and its purported announcement to em-
ployees in July.
Section 10(b) is an affirmative defense.

Section 10(b) is tolled until the Charging Party has either ac-
tual or constructive notice of the alleged unfair labor practice.
The Board has ruled that this “notice, whether actual or con-
structive, must be clear and unequivocal, and that the burden
of showing such notice is on the party raising the affirmative
defense of Section 10(b).” Service Employees Local 3036
(Linden Maintenance), 280 NLRB 995, 996 (1986) [Foot-
notes omitted.]

Ewart credibly testified that he received no communication
from the Respondent relating to proposed changes at Palm Gar-
den and Hidden Palm in July. The letter of July 18 specifically
refers to the facilities at which there were collective-bargaining
agreements. Notwithstanding the clear language in the letter,
the Respondent argues that the letter was “meant to deal with
Palm Court” and that Ewart “had an obligation . . . to seek
some clarification from Ms. Lemon” regarding the content of
the letter. I am aware of no case authority, and the Respondent
has cited none, that requires a Union to determine if some hid-
den message is contained behind the clear words reflecting a
change in benefits “that we would like to make effective Au-
gust 1, 2002, for all employees covered under the collective-
bargaining agreements.” Any contention that the Respondent
intended the July 18 letter to also relate to its Fort Lauderdale
facilities, at which there was no collective-bargaining agree-
ment, is undercut by the uncontraverted evidence that the Re-
spondent would not agree to accept at Fort Lauderdale the con-
tractual language in effect at Greystone’s other seven Florida
locations.
The Respondent additionally argues that employees became
aware of the foregoing changes more than 6 months prior to the
filing of the charge in Case 12–CA–23071 on June 2, 2003. I
have not credited the testimony of Lemon that she addressed
the employees in July. There is no evidence that any employee
was denied a 9th day of sick leave after August 1, thereby plac-
ing the employee on notice that the Respondent’s policies had
changed. The Respondent argues, in its brief, “that at the very
least, the Union had notice [of the change in holidays] when
Columbus Day was treated as an unpaid holiday in October
2002.” There is no probative evidence that Columbus Day was
treated as an unpaid holiday in 2002. Furthermore, even if the
employees were not paid for Columbus Day, there is no evi-
dence that any employee informed the Union of this. Dutchess
Overhead Doors, 337 NLRB 347, 352 (2003).
Lemon specifically denied that there was any change in jury
duty days after August 1. The document that Lemon claims she
attached to her letter of July 18 and the document that Attorney
Jasinski asserts he sent on November 27 both state that em-
ployees “are eligible for up to 15 days jury duty pay.” The em-
ployee handbook distributed on April 28, 2003, reduces this to
10.
The probative evidence establishes that the Union first
learned that there had been some change in holidays when em-
ployees reported that they had not been paid for Martin Luther
King Day. The exact nature and extent of the change was not
learned until April 28, 2003. In responding to the Union’s in-
quiry regarding why employees had not been paid for Martin
Luther King Day, Lemon explained that employees could take
a personal day. She did not assert that she had informed em-
ployees of this in July. Nor did she elaborate and explain that
the Respondent had also eliminated Good Friday and Columbus
Day, thereby reducing employees’ total holidays by two. The
extent of the change in holidays was confirmed when the hand-
book issued on April 28, 2003. The handbook also reflected the
reduction in sick days from 10 to 8 and a reduction in jury duty
pay from 15 days to 10 days. The foregoing changes in working
conditions occurred without any notice to or bargaining with
the Union and violated Section 8(a)(5) of the Act.
The complaint, in subparagraph 8(e), alleges changes in the
overtime policy, tardiness/absenteeism policy, and dress code
policy. The Respondent, in its brief, asserts that “[n]o evidence
was adduced on these subjects.” The employee handbook that
the Respondent admitted providing to the Union in November
requires that employees who will be absent provide “at least
one hour” notice before the shift begins and provides that em-
ployees who are required to work overtime will receive over-
time pay for hours worked over 8 in a single day. The hand-
book distributed on April 28, 2003, requires “(2) two hours
advance notice” for employees working on day shift and “(4)
four hours” notice for employees working on the evening or
night shifts. Overtime for hours over 8 required to be worked in
a single day has been eliminated. The change in notification
time is substantial. Flamabeau Airmold Corp., 334 NLRB 165
(2001). The change in eligibility for overtime pay directly af-
fects employee earnings. The foregoing changes, instituted
without any notice to or bargaining with the Union, violated
Section 8(a)(5) of the Act.
There has been no change in the written policy relating to
dress. Both the present and former employee handbooks pro-
vide that management may designate casual days. Although
Grant-Clarke testified that Administrator Joya Marotta, in May
2003, requested employees not to wear blue jeans, they could
wear “black jeans, white jeans, khaki, or any other colored
jeans apart from blue.” The change to which Grant-Clarke testi-
fied was, at best, a change in practice relating only to “blue”
jeans. The complaint alleges a change in “dress code policy” on
April 28, 2003, the date of the distribution of the new employee
handbook. The General Counsel has not established that there
was a change in policy. The change in practice in May was not
alleged, nor was it fully litigated since Administrator Marotta
was not called to address the testimony of employee Grant-
Clarke. I shall recommend that this allegation be dismissed.
CONCLUSIONS OF LAW
1. By refusing to meet with the Union because of the compo-
sition of its bargaining committee, the Respondent has engaged
in unfair labor practices affecting commerce within the mean-

PALM COURT NURSING HOME N.H., L.L.C. 821
ing of Section 8(a)(1) and (5) and Section 2(6) and (7) of the
Act.
2. By unilaterally changing employees’ working conditions
by instituting a 401(k) plan, by increasing employee contribu-
tions for prescription drugs and the cost of using other than
“preferred providers,” by reducing the number of paid holidays,
jury duty days, and sick days, by increasing the time required
for advance notification for absences or tardiness, and by ceas-
ing to provide overtime for hours over 8 required to be worked
in a single day, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and (5) and Section 2(6) and (7) of the Act.
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.
The Respondent, having unlawfully refused to meet and bar-
gain with the Union for approximately 4 months, shall be or-
dered to bargain. The General Counsel has requested that the
Respondent be ordered to continue to bargain in good faith “for
the period required by Mar-Jac Poultry, 136 NLRB 785
(1962).” Mar-Jac Poultry, which provides for an extension of a
certification year upon the resumption of bargaining, is not
applicable in the instant case. Even if it were applicable, a 4-
month extension of the certification year would have expired in
August 2003, more than 2 months prior to the issuance of this
decision. Consequently the bargaining obligation imposed
herein shall be a general one to extend for a “‘reasonable period
in which it can be given a fair chance to succeed.’ Franks Bros.
Company v. N.L.R.B., 321 U.S. 702, 705 (1944).” Eastern
Maine Medical Center, 253 NLRB 224, 248 at fn. 32 (1980),
enfd. 658 F.2d 1 (1st Cir. 1981).
The Respondent shall be ordered, upon the request of the
Union, to rescind any or all of the unilateral changes found
herein.
The Respondent, having unilaterally increased employee
contributions for prescription drugs and treatment by other than
“preferred providers,” must make employees whole for any
expenses ensuing from its unilateral changes in prescription
costs and access to medical providers other than preferred pro-
viders, as set forth in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), with inter-
est as prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
The Respondent, having unilaterally reduced the number of
paid holidays, jury duty days, and sick days extended to em-
ployees, must make them whole for any loss with regard to the
foregoing changes, with interest as prescribed in New Horizons
for the Retarded, supra.
The Respondent, having unilaterally ceased to pay overtime
for hours over 8 required to be worked in a single day, must
make whole all employees for hours over 8 required to be
worked in a single day at any time after April 28, 2003, by
payment of overtime with interest as prescribed in New Hori-
zons for the Retarded, supra.
[Recommended Order omitted from publication.]