Specialty Hospital of Washington - Hadley

National Labor Relations Board - Board Decisions

Aug 26, 2011

357 N.L.R.B. 814 (N.L.R.B. 2011)

814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 77
Specialty Hospital of Washington-Hadley, LLC and
1199 SEIU, United Healthcare Workers East,
MD/DC Division. Case 05–CA–033522
August 26, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
On August 26, 2009, Administrative Law Judge Eric
M. Fine issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answer, and the Respondent filed a re-
ply.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2
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, and conclusions and
to adopt the recommended Order as modified and set
forth in full below.3
I. BACKGROUND
This case presents the following question under
longstanding Board precedent on the law of successor-
ship: whether an employer that satisfies all of the criteria
for being a successor and would have an obligation to
recognize and bargain with the representative of its pre-

1 On July 13, 2010, the Respondent filed a motion to vacate all deci-
sions and orders issued in these proceedings based on the Supreme
Court’s decision in New Process Steel v. NLRB, 130 S.Ct. 2635 (2010),
in which the Court held that the Board, which consisted of only two
Members from January 2008 through March 2010, had no statutory
authority to issue decisions and orders during that time. The General
Counsel filed an opposition.
The two-Member Board issued the following decisions and orders in
this proceeding. Following the issuance of the complaint, the Respond-
ent filed a motion for summary judgment. On January 17, 2008, the
two-Member Board issued a Notice to Show Cause why the motion
should not be granted, and, on November 25, 2008, issued an Order
denying the Respondent’s motion and remanding this case for a hearing
on the merits. The two-Member Board subsequently issued Orders
denying the Respondent’s initial and second motions for reconsidera-
tion of that Order. Finally, on January 15, 2009, the two-Member
Board issued an Order denying the Respondent’s request for review of
the Regional Director’s dismissal of its RM petition. Having reviewed
these prior Orders, we affirm them for the reasons given therein.
Accordingly, we deny the Respondent’s current motion.
2 Member Pearce is recused and took no part in the consideration of
this case.
3 In accordance with our decision in Kentucky River Medical Center,
356 NLRB 6 (2010), we modify the judge’s remedy by requiring that
backpay and other monetary awards shall be paid with interest com-
pounded on a daily basis. Also, we shall modify the judge’s recom-
mended Order to provide for the posting of the notice in accord with J.
Picini Flooring, 356 NLRB 11 (2010). For the reasons stated in his
dissenting opinion in J. Picini Flooring, Member Hayes would not
require electronic distribution of the notice.
decessor’s employees, but for the fact that its predecessor
recognized the representative in an inappropriate unit,
nevertheless becomes so obligated if the representative
“perfects” the unit by disclaiming interest in representing
specified employees in the predecessor’s unit (here,
guards and professionals). For the reasons stated below,
we hold that the Respondent was a successor employer
and had a duty to bargain with the Union in the perfected
unit.
The workplace at issue is a long-term acute care hospi-
tal in Washington, D.C. On November 14, 2005, the
predecessor employer, Hadley Memorial Hospital, vol-
untarily recognized a “mixed unit” of 169 employees,
including 10 security guards and 5 pharmacists. There is
no dispute that the pharmacists are professionals. The
Union and Hadley met for three negotiating sessions
from March through July 2006, but were unable to reach
a contract. On November 13, 2006, the Respondent pur-
chased the hospital’s assets, hired virtually all of Had-
ley’s unit employees, and took over operations. On No-
vember 17, 2006, the Respondent informed the Union
that it refused to recognize or bargain with the Union
because the preexisting unit included guards and profes-
sional pharmacists and was therefore inappropriate under
Section 9(b)(1) and (3) of the Act.4 On February 1,
2007, the Union renewed its request to bargain, this time
excluding the guards and pharmacists from the scope of
the request. Alternatively, the Union offered to have the
pharmacists determine whether they wished to be includ-
ed in the unit. In effect, the Union disclaimed interest in
representing the guards and pharmacists. The “perfect-
ed” unit, which excluded guards and pharmacists, con-
sisted of 148 employees, of whom 142 had worked for
the predecessor.
The Respondent refused to recognize or bargain with
the Union in the perfected unit, and the Union filed
8(a)(5) and (1) charges. Following a hearing on the Un-
ion’s charges, the judge issued a decision finding that the
unit in question, as perfected, was appropriate, and that
the Respondent had a duty to bargain with the Union and
thus violated Section 8(a)(5) and (1) by refusing to do so.

4 Sec. 9(b)(1) states that a unit is inappropriate if it includes profes-
sional and nonprofessional employees unless a majority of the profes-
sionals vote for inclusion in the unit. There was no evidence that the
professionals in the unit voted for inclusion.
Sec. 9(b)(3) states that a unit is inappropriate if it includes employ-
ees together with “any individual employed as a guard to enforce
against employees and other persons rules to protect property of the
employer or to protect the safety of persons on the employer’s prem-
ise.”
SPECIALTY HOSPITAL OF WASHINGTON-HADLEY, LLC 815
II. ANALYSIS
The Board has held, consistent with Supreme Court
precedent, that a successor employer inherits the collec-
tive-bargaining obligation of its predecessor if a majority
of the successor’s employees in an appropriate bargain-
ing unit were employed by the predecessor, and if there
exists “substantial continuity between the enterprises.”
Van Lear Equipment, Inc., 336 NLRB 1059, 1063
(2001), citing Fall River Dyeing Corp. v. NLRB, 482
U.S. 27, 41–43 (1987); NLRB v. Burns Security Services,
406 U.S. 272, 280 fn. 4 (1972). There is no dispute that
the predecessor’s unit, including guards and profession-
als, was inappropriate. That unit, however, is not at is-
sue.
Rather, the questions before us are whether the per-
fected unit—which excluded guards and professionals—
is appropriate,5 and, if so, whether the Respondent had a
duty to bargain in the perfected unit under established
successorship policy and principles. We answer both
questions in the affirmative.6
A. The Respondent’s Bargaining Obligation
There is no question that, if the preexisting unit had
been appropriate, the Respondent would have had the
obligations of a successor: 142 of 148 employees work-
ing in the perfected unit had worked for the predecessor
(and 157 of 163 employees in the unperfected unit).
Moreover, the Respondent concedes that “there was sub-
stantial continuity between [the predecessor] enterprise
and that of [the successor] SHW-Hadley.”
There is also no question that, if the Respondent had
altered the predecessor’s unit by, for example, assuming
the entire operation except for the security and profes-
sional functions—e.g., if it had contracted out those
functions—the Respondent would have been a successor
employer with the corresponding obligations. The Board
has consistently found substantial continuity in analo-

5 We address the appropriateness of the perfected unit in sec. II, B,
below.
6 Our dissenting colleague relies on Russelton Medical Group, Inc.,
302 NLRB 718 (1991), for the proposition that the successor has no
duty to bargain in an inappropriate unit. There, the Board found that the
employer did not have to bargain in an inappropriate mixed profession-
al and nonprofessional unit. Russelton is inapposite because the Union
in the present case sought to bargain in a perfected appropriate unit.
On brief, the Respondent argues that Mental Health Center of Boul-
der, 222 NLRB 901 (1976), “controls” the outcome of this case. We
disagree. In Mental Health, the Board refused to recognize the validity
of a State-conducted election and certification because the unit in ques-
tion included both professionals and nonprofessionals, and the profes-
sionals were not given a separate vote on inclusion in the unit, making
the unit statutorily inappropriate under the NLRA. The union in Mental
Health sought bargaining only in the inappropriate unit. There was no
disclaimer of interest like the one here.
gous circumstances where a predecessor’s unit, as here,
has been changed or diminished in size, typically as a
result of the successor’s operational decisions. See, e.g.,
Van Lear Equipment, Inc., supra (successor’s bargaining
obligation survived where successor hired predecessor’s
drivers only and not the entire unit, and where 19 of suc-
cessor’s 26 drivers had been employed by the predeces-
sor); Tree-Free Fiber Co., 328 NLRB 389 (1999) (suc-
cessor bargaining relationship found where successor
employed only 50 employees and predecessor employed
500; a majority of successor’s employees worked for
predecessor in a substantially similar operation).
Bronx Health Plan, 326 NLRB 810 (1998), enfd. 203
F.3d 51 (D.C. Cir. 1999), is illustrative of the extent the
unit may be altered without eliminating successorship
obligations. There, the predecessor employed workers in
hundreds of job classifications in the recognized unit.
The successor hired a tiny fraction (.05 percent) of the
predecessor’s bargaining unit employees (16 out of
3500), who were scattered among those many job classi-
fications. The union sought to bargain over the 16 em-
ployees in a clerical unit. The Board found successorship
because, among other things, all of the successor’s unit
employees had been employees of the predecessor. In
short, in Bronx Health Plan, the successor’s unit no
longer contained the vast preponderance of the predeces-
sor’s bargaining unit job classifications and employee
complement. But, as there was continuity both in the
nature of the enterprise and the work force (within the
contracted unit), successorship principles resulted in a
duty to bargain.
For purposes of successorship, we perceive no persua-
sive reason why it should matter whether it is the em-
ployer or, as here, the union that alters (or perfects) the
unit by eliminating classifications from the unit. The
Supreme Court has instructed that the question of sub-
stantial continuity must be considered from the employ-
ees’ perspective.7 Viewed from that perspective, it
makes no difference whether the successor acquired only
a part of the unit or the union disclaimed interest in a part
of the unit. In either case, there is no reason to believe
that employees’ views on union representation have
changed. Put another way, a diminution of unit scope or
unit inclusion, by itself, is insufficient to meaningfully
affect the way that unit employees perceive their jobs or
significantly affect employee attitudes concerning union
representation. Bronx Health Plan, supra at 813.
Here, an overwhelming majority of the predecessor’s
employees, after the sale, continued to perform the same

7 See Fall River Dyeing, 482 U.S. at 43 (“This emphasis on the em-
ployee’s perspective furthers the Act’s policy of industrial peace.”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 816
work alongside the same employees represented by the
same union. The perfected successor unit consisted of 91
percent of the former predecessor unit (148 of 163 em-
ployees) and 96 percent of the successor’s unit employ-
ees were former employees of the predecessor (142 of
148). Further, 93 percent of the predecessor’s classifica-
tions remained in the perfected unit (28 of 30). The Re-
spondent’s functions were unchanged. It follows that the
Union’s disclaimer of interest in representing guards and
professionals likely would have a minimal impact, if any,
on how unit employees would perceive their jobs or the
desirability of continued representation. Accordingly,
there is no basis to conclude that the disclaimer of only a
few job classifications and employees should affect the
presumption of majority status in the perfected unit.
Our dissenting colleague, however, would draw a
“bright line” in all cases where the predecessor’s unit
was inappropriate and would treat the Union’s request
for recognition after the modest alteration of the prede-
cessor’s unit here as “indistinguishable from any other
initial request for voluntary recognition.”8 But, our col-
league does not explain how this case is different from
those discussed above, where the successor retained only
part of the predecessor’s unit and the Board found the
duty to bargain attached in the new unit.9 The dissent
essentially finds that when the Respondent declined to
bargain in the unperfected, inappropriate unit, that act
destroyed the continuity between the predecessor and the
Respondent and, at that point in time, the Respondent
was transformed into a stranger employer. But, there is
no basis to find that the act of declining to bargain had
any impact on continuity, especially not in the eyes of
unit employees. On the contrary, all of the factors estab-
lishing a high degree of continuity remained unchanged.
Indeed, the dissent does not point to a single fact in the
record that might warrant some suspicion that employ-
ees’ views on union representation changed simply be-

8 The dissent points to the brief nature of the prior bargaining rela-
tionship, but its “bright line rule” would apply in all cases regardless of
the length of the predecessor’s bargaining relationship. Similarly, the
dissent also points to the 2-1/2-month delay before the Union dis-
claimed interest in the guards and professionals. But, again, the dis-
sent’s proposed rule would apply even if the disclaimer is immediate or
precedes the successor’s assuming the operation.
9 The dissent suggests that the holding here will create “numerous
uncertainties.” But, the uncertainties about what changes in the unit
will destroy the requisite “substantial continuity” and when such
changes may be made are no different from the parallel questions that
arise when a putative successor does not acquire the entire unit or there
is a hiatus in operations between when the predecessor ceases to oper-
ate the business and the successor begins. As to the dissent’s question
whether a union may “make changes for other reasons,” our holding
here applies only when a union “perfects” a previously inappropriate
unit.
cause the Union disclaimed interest in representing the
security guards and pharmacists.10
Here, the facts supporting a finding of continuity are
overwhelming, both in the continuation of the business
enterprise in unchanged form and the sheer numbers,
discussed above, showing substantial continuity of the
work force. Indeed, if anything, there is a far greater
degree of continuity here than in the cited cases finding
continuity and successorship.
The dissent’s formalistic approach, which essentially
treats all this evidence of substantial continuity as a nulli-
ty, is at odds with Board precedent, with the policy un-
derlying the successorship doctrine, and, most important-
ly, with the fundamental goals of the Act: to promote
industrial stability and to honor the employees’ choice
whether to have union representation. As the Supreme
Court explained in Fall River Dyeing, supra, preserving a
bargaining relationship is particularly significant in the
successorship context because, “[i]f the employees find
themselves in a new enterprise that resembles the old, but
without their chosen bargaining representative, they may
well feel that their choice of a union is subject to the va-
garies of an enterprise’s transformation,” and “[t]his feel-
ing is not conducive to industrial peace.” 482 U.S. at
39–40. Nor is the dissent’s position supported by the
policies underlying Section 9(b)(1) and (3) as, once the
Union disclaimed interest, those policies were fully vin-
dicated.11

10 We find no merit to the dissent’s contention that the Union’s effort
to satisfy the requirements of Sec. 9 of the Act constitute inappropriate
“gerrymandering.” To equate an employer’s unlawful discrimination in
order to avoid its obligations under the Act with the Union’s action here
to conform the unit to the requirements of the Act, as the dissent does,
is to compare apples with oranges, and bad apples at that.
Moreover, in analogous contexts, the Board has allowed a union to
clarify an inappropriate unit by, among other things, excluding guards.
Libbey-Owens-Ford Glass Co., 169 NLRB 126 (1968). In Libbey-
Owens-Ford, the Board processed the union’s unit clarification (UC)
petition and rejected the employer’s position that the union was re-
quired to resort to a representation election to resolve the issue. We see
no significant difference between the Union’s disclaimer in this case
and the union’s UC petition in Libbey-Owens-Ford. The dissent would
distinguish Libbey-Owens-Ford based on that distinction, but in both
cases the unions’ motive was to perfect the unit in order to preserve a
bargaining relationship and render it enforceable.
In SecTec, Inc., Case 5–RC–16611 (March 10, 2011), reported on
the Board’s website at www.NLRB.gov, the Board recently denied
review of an Acting Regional Director’s conclusion that a bargaining
agreement had bar effect when the union disclaimed interest in repre-
senting a guard, even though the contractual unit was a mixed guard
and nonguard unit. As in the present case, once the Union “perfected”
the unit by disclaiming interest in the guard, there was an appropriate
unit.
11 Our approach advances the policies underlying Sec. 9(b)(1) and
(3) as the perfected unit does not include guards and professional em-
ployees.
SPECIALTY HOSPITAL OF WASHINGTON-HADLEY, LLC 817
For all of these reasons, we find there was substantial
continuity.
B. Appropriateness of Perfected Unit
The Respondent argues that, even if the Board finds
that the presumption of majority status continues in the
perfected unit, it still has no duty to bargain because the
perfected unit does not conform to the Board’s Rule gov-
erning units in acute care hospitals12 and, thus, the unit is
inappropriate, even absent the guards and professionals.
For the reasons stated by the judge, we find that the Rule
does not apply. Specifically, we find that the perfected
unit falls into the “existing non-conforming unit” excep-
tion to the Board’s Rule. Section 103.30(a).
Our dissenting colleague, however, does not believe
that the “existing unit” exception should apply, and thus
he agrees with the Respondent that the perfected unit is
inappropriate. In the dissent’s view, the perfected unit
cannot preexist by definition, because it did not exist
before the Union disclaimed interest in the guards and
professionals. Basically, the dissent’s contention as to
the appropriateness of the perfected unit echoes his con-
tention that the Board should treat the circumstances here
as akin to an initial request for bargaining to a stranger
employer, a contention that we have rejected.
In any event, such a narrow interpretation of the ex-
ception to the acute care hospital unit rule is not con-
sistent with Board law. For example, in Pathology Insti-
tute, Inc., 320 NLRB 1050 (1996), the successor took
over the predecessor’s operations but closed several of its
nonacute care facilities and thus hired only a portion of
the predecessor’s unit of medical laboratory technolo-
gists. The successor argued that the smaller, surviving
unit was substantially different from the historic unit and
thus was not an “existing” nonconforming unit within the
meaning of the health care rule. Disagreeing, the Board
stated:

[N]othing in Section 103.30 [the health care rule] sug-
gests that an employer in the health care industry may
cease to recognize a union as the representative of its
employees merely because of a reduction in the number
of unit employees or because of a closure of the
nonacute care portion of an employer’s facility. On the
contrary, permitting an employer to withdraw recogni-
tion under such circumstances would be inconsistent
“with the design and purpose of our decision to engage
in rulemaking—to further the long-standing policy of
promoting industrial and labor stability.”

12 Board’s Rules and Regulations, Sec. 103.30.
Id. at 1051 (citation omitted).13
In Pathology Institute, the Board found that the unit,
although smaller, was essentially the same as the unit
that existed before the closing of the nonacute care facili-
ties, and thus the unit fell within the “existing non-
conforming unit” exception. In the present case, as dis-
cussed above, the removal of two classifications and only
15 of 163 employees from the existing unit did not sub-
stantially alter the unit. As an “existing non-conforming
unit,” the perfected unit falls into the exception to the
rules and is thus appropriate.14
The perfected unit, which excludes the guards, respira-
tory therapists, and recreation technicians, is appropriate.
As the judge found, there are numerous community-of-
interest indicia that distinguish employees in these classi-
fications from employees in the unit and, therefore, they
do not share an overwhelming community of interest
with unit employees that requires their inclusion.
In sum, we adopt the judge’s decision and find that the
Respondent, as a successor employer, had a duty to bar-
gain with the Union in the perfected unit. By refusing to
do so, it violated Section 8(a)(5) and (1).
ORDER
The National Labor Relations Board orders that the
Respondent, Specialty Hospital of Washington-Hadley,
LLC, Washington, D.C., its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain in
good faith with 1199 SEIU United Healthcare Workers
East, MD/DC Division (the Union) as the exclusive col-
lective-bargaining representative of its employees in the
below-described appropriate bargaining unit:

All bakers, cashiers, certified pharmacy techs, C.N.A.s,
cooks, dietary clerks, E.S. employees, E.S. Aides, E.S.
Floor Techs, Engineers III, food service workers,
LPNs, maintenance helpers, maintenance mechanics,
med lab techs, medical records clerks, medical records
techs, painters, pharmacy techs, phlebotomists, P.T.
care techs, rehab techs, senior medical records techs,

13 In Pathology Institute, the Board noted that the Board’s Rule by
its terms, applies only in representation cases, but assumed it applied in
the unfair labor practice case and proceeded to find that the unit re-
mained an existing nonconforming unit. We take the same approach
here without reaching the question of whether the Rule actually applies
to this case.
14 The dissent “reject[s]” reliance on Pathology Institute on the
grounds that there the successor employer altered the preexisting unit
while here the Union did so, but offers no explanation of why that
distinction should make a difference in deciding whether the altered
unit remained an “existing non-conforming unit” for purposes of the
Rule.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 818
stock clerks, stock room coordinators, trayline check-
ers, unit secretaries, and utility aids, employed by Re-
spondent at its Washington, D.C. facility; but excluding
all other employees, professional employees, guards,
and supervisors as defined in the National Labor Rela-
tions Act.

(b) 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 in good faith with the Union as
the exclusive representative of the employees in the
above described unit concerning terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement.
(b) Promptly notify the Union, in writing, of all chang-
es in terms or conditions of employment of the above-
described unit that have been implemented by the Re-
spondent since February 1, 2007.
(c) On request by the Union, rescind changes specified
by the Union made in terms or conditions of employment
for the above-described unit since February 1, 2007.
(d) Make the employees in the above-described unit
whole plus interest compounded on a daily basis for any
loss of earnings or benefits suffered as a result of any
changes which the Respondent has made in their terms
and conditions of employment subsequent to February 1,
2007, for the above-described unit.
(e) Within 14 days after service by the Region, post at
its Washington, D.C. location, copies of the attached
notice marked “Appendix.”15 Copies of the notice, on
forms provided by the Regional Director for Region 27,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these

15 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.”
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since February 1, 2007.
(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.

MEMBER HAYES, dissenting.
In this case of first impression, the majority decides to
require the Respondent, an alleged Burns1 successor, to
recognize and bargain with a newly formed unit of em-
ployees based on its predecessor’s voluntary recognition
of a different, and statutorily inappropriate, unit. Alt-
hough the majority attempts to characterize its decision
as one governed by “longstanding Board precedent on
the law of successorship,” it is not; the Board has never
found a successorship bargaining relationship where, as
here, the union unilaterally altered the predecessor’s ex-
isting bargaining unit for the sole purpose of preserving a
bargaining obligation. My colleagues, however, gloss
over the Union’s actions and find that the Respondent
was obligated to bargain with the Union in this unilater-
ally created unit despite the absence of any preexisting
bargaining relationship in the unit between the Union and
either the predecessor or the successor. This finding ab-
negates the Respondent’s well-established right to refuse
to accept evidence of a union’s majority status other than
through a Board election.2 Because the majority’s deci-
sion deprives the Respondent of that right, I dissent.
Contrary to the majority, and for the reasons stated be-
low, I would find that the Union’s representative status
terminated when the Respondent lawfully refused the
Union’s demand for recognition in the inappropriate pre-
decessor unit. From that moment on, the Union’s efforts
to secure recognition in a new unit, which is also inap-
propriate, are indistinguishable from any other initial
request for voluntary recognition.
In Van Lear Equipment, Inc., 336 NLRB 1059, 1063
(2001), the Board summarized its test for determining
successorship:

An employer, generally, succeeds to the collec-
tive-bargaining obligation of a predecessor if a ma-
jority of its employees, consisting of a “substantial
and representative complement,” in an appropriate
bargaining unit are former employees of the prede-
cessor and if the similarities between the two opera-

1 406 U.S. 272 (1972).
2 See Linden Lumber Division, Summer & Co. v. NLRB, 419 U.S.
301 (1974).
SPECIALTY HOSPITAL OF WASHINGTON-HADLEY, LLC 819
tions manifest a ‘“substantial continuity’ between
the enterprises.” Fall River Dyeing Corp. v. NLRB,
482 U.S. 27, 41–43 (1987), citing, inter alia, NLRB
v. Burns Security Services, 406 U.S. 272, 280 fn. 4
(1972) (footnote omitted).

There is no dispute that all of the elements of succes-
sorship are met here save one: the predecessor’s unit,
which included guards and professionals, is not an ap-
propriate bargaining unit.3 The Board has held, con-
sistent with its successorship test, that a successor has no
duty to bargain with an incumbent union where the pre-
decessor’s bargaining unit is inappropriate. Russelton
Medical Group, Inc.¸ 302 NLRB 718 (1991) (holding
that successor was not obligated to bargain with union in
predecessor’s unit, which included professional and non-
professional employees). Thus, when the Union de-
manded that the Respondent recognize it as the exclusive
bargaining representative in the predecessor’s unit, the
Respondent had no duty to do so, and its refusal did not
violate the Act.
In my view, the Respondent’s bargaining duty as a
successor ended at that point. When the Union requested
in February 2007 to bargain with the Respondent in a
new unit excluding guards and professionals, this was an
initial request to a new employer for voluntary recogni-
tion.4 Accordingly, the parties should have proceeded as
with any initial bargaining request: the Union could re-
quest voluntary recognition with a showing of majority
support, the Respondent could lawfully decline recogni-
tion on this basis, and the burden would then be on the
Union to pursue recognition by filing a petition, with the
proper showing of interest, for a Board-conducted elec-
tion.
This “bright-line” approach rests on sound Board poli-
cy preferring resolution of questions concerning repre-

3 I disagree with the majority’s contention that the predecessor’s
unit, including guards and professionals, is not the unit at issue. This is
the unit the Respondent inherited, with which it began its operations,
and with which the Union requested bargaining. Under traditional
successorship principles, it is the only unit to consider in evaluating the
Respondent’s bargaining duty.
4 The majority claims that the Board should require the Respondent
to bargain in the perfected unit because there is substantial continuity
between the predecessor’s unit and the perfected unit, especially in the
eyes of unit employees. In my view, the majority overstates its claim
that the employees’ point of view is the definitive, indeed the only,
criterion the Board should consider when evaluating continuity of oper-
ations. More importantly, by focusing on the employees’ view of the
new unit, the majority ignores the novel issue we must consider here:
whether the Board should allow a union to unilaterally alter a predeces-
sor’s unit to preserve its representation status. Because I would answer
“no” to that question, I would not reach whether substantial continuity
exists in the perfected unit.
sentation through Board elections.5 It does no violence
to the Burns policy of preserving an existing bargaining
relationship because the predecessor’s bargaining rela-
tionship involved an inappropriate unit and there is no
bargaining history between the Union and the Respond-
ent in the new “perfected” unit.6 Further, this approach
provides employers and unions with clear guidance: if
the predecessor’s unit is inappropriate, the successor has
no duty to bargain and the union may not manipulate the
unit in an attempt to create a duty to bargain.
Remarkably, the majority virtually ignores this final
point—the Union’s manipulation of the unit for its repre-
sentational purposes. This is the key fact, however, that
makes this a case of first impression and distinguishes
this case from those on which the majority relies. The
majority cites several cases in which the Board has found
a successor’s duty to bargain in a unit significantly dif-
ferent from the predecessor’s unit. The Board finds a
duty to bargain where the new unit includes a substantial
and representative complement of the predecessor’s em-
ployees, the unit is appropriate, and there is substantial
continuity of operations. In those cases, however, the
unit changes result from the successor’s business and
operational needs, not from any consideration for its duty
to bargain. Indeed, if a successor makes hiring decisions
with the sole intention of avoiding a duty to bargain, it
commits an unfair labor practice. See, e.g., Planned

5 Levitz Furniture Co. of the Pacific, 333 NLRB 717, 723 (2001)
(stating that “Board-conducted elections are the preferred way to re-
solve questions regarding employees’ support for unions”). According
to the Acting General Counsel’s summary of operations for Fiscal Year
2010, 95.1 percent of all initial elections were conducted within 56
days of filing the petition, and initial elections were conducted in a
median of 38 days from a petition’s filing. Representation—Case Pro-
cedures, 76 Fed. Reg. 36,812, 36,831 (June 22, 2011). Accordingly,
under a “bright-line” approach, the parties can resolve any questions
concerning representation far more quickly through an election than
through the inevitable litigation that will result following a union’s
unilateral revisions to the predecessor’s unit. The “bright-line” ap-
proach, therefore, promotes industrial stability by providing a quicker
resolution of questions concerning representation.
6 The majority roots its analysis in the importance of “industrial sta-
bility” and the preservation of the parties’ bargaining relationship. In
fact, however, the record belies that claim. The Union was not certified
by the Board and the bargaining history here consists of only three
meetings in 2006 between the predecessor and the Union, which did not
result in a contract. There was no relationship whatsoever with the
successor. Moreover, as the judge observed, the Union hardly demon-
strated a compelling interest in preserving any bargaining relationship,
as it sat on its hands for nearly 3 months before proposing to disclaim
interest in the guards and pharmacists in the inappropriate unit recog-
nized by the predecessor. Industrial stability may be valued by the Act,
but it is not advanced by the majority’s unprecedented decision. And to
be clear, while I have adopted the judge’s use of the term “perfected” to
describe the unilaterally altered bargaining unit, that unit was inappro-
priate as a matter of law both before and after the Union disclaimed
interest in the guards and professionals.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 820
Building Services, 347 NLRB 670, 674 (2006) (finding
that employer violated Section 8(a)(3) by refusing to hire
predecessor’s employees to avoid its bargaining obliga-
tion); Love’s Barbeque No. 62, 245 NLRB 78, 82 (1979),
enfd. in relevant part sub nom. Kallmann v. NLRB, 640
F.2d 1094 (9th Cir. 1981). But in this case, the Union
makes unilateral changes to the predecessor’s bargaining
unit for one reason only—to preserve its representation
status. Under no circumstances has the Board allowed a
party to unilaterally alter a bargaining unit for the sole
purpose of affecting its duty to bargain.7 I cannot join
the majority’s decision to grant the Union in this case
such unprecedented power.
The majority’s approach does not reflect Board policy
and results in ambiguity and uncertainty for the parties
involved. As noted, the majority cannot accurately claim
that its decision preserves an existing bargaining rela-
tionship. Moreover, allowing the Union to gerrymander
the predecessor’s unit creates numerous uncertainties that
will, as here, lead to litigation: what kinds of changes
may a union make to a predecessor’s unit; at what point,
or at what number, will those changes “substantially al-
ter” the size and scope of the unit; can a union change the
predecessor’s unit only when the unit is statutorily inap-
propriate, or may the union make changes for other rea-
sons? None of these uncertainties exist under the
“bright-line” approach.
Even assuming, arguendo, that a successor employer
could be obligated to recognize a “perfected” version of a
statutorily inappropriate predecessor unit in certain cir-
cumstances, I further disagree with the majority’s deci-
sion to adopt the judge’s finding that the “perfected” unit
here was appropriate because, as an “existing non-
conforming unit,” the Health Care Rule did not apply.
As stated above, the “perfected” unit did not exist at all
before the Union agreed to disclaim interest in the guards
and professionals.8 Thus, the newly formed unit could
not, by definition, fall under the “existing non-
conforming unit” exception. Rather, I would find that
the Health Care Rule did apply, and under the rule, the

7 The majority’s reliance on Libbey-Owens-Ford Glass Co., 169,
NLRB 126 (1968), illustrates this point. There, the union sought to
“perfect” an inappropriate unit of employees by removing guards. The
union accomplished this, however, not by unilateral action, but by
filing a UC petition and availing itself of the Board’s processes. Thus,
contrary to the majority’s claim, Libbey-Owens-Ford does not present a
context analogous to this case.
8 For the reasons stated above, I reject the majority’s reliance on
such cases as Pathology Institute, Inc., 320 NLRB 1050 (1996), where
changes to a predecessor’s unit resulted from the successor’s business
and operational decisions. Such cases are fundamentally different from
this case, where the Union unilaterally altered the predecessor’s unit
only to preserve its representational status.
“perfected” unit was inappropriate because it excluded
respiratory therapists and recreation technicians from a
unit including all other nonprofessional employees.
In sum, I would find that the Respondent had no duty
to bargain in the “perfected” unit, and thus its refusal to
bargain did not violate Section 8(a)(5). I would therefore
dismiss this allegation.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

WE WILL NOT fail and refuse to recognize and bargain
with 1199 SEIU, United Healthcare Workers East,
MD/DC Division (the Union) as the exclusive collective-
bargaining representative of employees in the following
appropriate unit:

All bakers, cashiers, certified pharmacy techs, C.N.A.s,
cooks, dietary clerks, E.S. employees, E.S. Aides, E.S.
Floor Techs, Engineers III, food service workers,
LPNs, maintenance helpers, maintenance mechanics,
med lab techs, medical records clerks, medical records
techs, painters, pharmacy techs, phlebotomists, P.T.
care techs, rehab techs, senior medical records techs,
stock clerks, stock room coordinators, trayline check-
ers, unit secretaries, and utility aids, employed by us at
our Washington, D.C. facility; but excluding all other
employees, professional employees, guards, and su-
pervisors as defined in the National Labor Relations
Act.

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights as guaranteed in Section 7 of the Act.
WE WILL recognize and, on request, bargain collective-
ly and in good faith with the Union as the exclusive rep-
resentative of the employees in the appropriate unit set
forth above, concerning terms and conditions of em-
SPECIALTY HOSPITAL OF WASHINGTON-HADLEY, LLC 821
ployment and, if an understanding is reached, embody
the understanding in a signed agreement.
WE WILL promptly notify the Union, in writing, of all
changes in terms or conditions of employment of the
above-described unit that we have implemented since
February 1, 2007.
WE WILL, on request by the Union, rescind unilateral
changes we made in terms or conditions of employment
of the above-described unit since February 1, 2007; ex-
cept that nothing in this provision requires that we with-
draw or eliminate any improvement in wages or benefits.
WE WILL make all affected unit employees whole, to-
gether with interest, for any and all losses they incurred
by virtue of the changes in their wages, fringe benefits,
and other terms and conditions of employment from Feb-
ruary 1, 2007, until we negotiate in good faith with 1199
SEIU, United Healthcare Workers East, MD/DC Divi-
sion to agreement or to impasse.

SPECIALTY HOSPITAL OF WASHINGTON–HADLEY, LLC

Thomas J. Murphy, Esq., and Sean R. Marshall, Esq., for the
General Counsel.
Charles F. Walters, Esq., of Washington, D.C., and Kristin E.
Michaels, Esq., of Chicago, Illinois, for the Respondent.
Stephen W. Godoff, Esq., of Baltimore, Maryland, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ERIC M. FINE, Administrative Law Judge. This case was
tried in Washington, D.C., on May 12 and 13, 2009. The
charge was filed on March 26, 2007, by 1199 SEIU, United
Healthcare Workers East, MD/DC Division (the Union) against
Specialty Hospital of Washington-Hadley, LLC (Respondent).
The complaint alleges that Respondent, a successor employer,
has violated Section 8(a)(1) and (5) of the Act by refusing the
Union’s request to recognize and bargain with the Union as the
collective-bargaining representative in a requested unit that is
appropriate for collective bargaining.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Union, and the Respondent, I make
the following1

1 In making the findings, I have considered all the witnesses’ de-
meanor, the content of their testimony, and the inherent probabilities of
the record as a whole. In certain instances, I have credited some but not
all of what a witness said. See NLRB v. Universal Camera Corp., 179
F.2d 749, 754 (2d. Cir), reversed on other grounds 340 U.S. 474
(1951). I found the witnesses in this proceeding testified in a truthful
manner to the best their recollections would permit, and have credited
their testimony as set forth in the body of this decision.
FINDINGS OF FACT
I. JURISDICTION
Respondent with an office and place of business in Washing-
ton, D.C. (Respondent’s facility), has been engaged in the oper-
ation of a hospital providing long term, acute medical care.
During the 12-month period preceding the issuance of the com-
plaint in conducting its business operations, Respondent de-
rived gross revenues in excess of $250,000. During the same
period, Respondent purchased and received at its facility goods
valued in excess of $5000 directly from points located outside
of the District of Columbia. Respondent admits and I find it is
a health care institution within the meaning of Section 2(14) of
the Act, 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
Respondent admits the following in its answer to the amend-
ed complaint:
From on or about November 14, 2005 to in or around late
October 2006 or early November 2006, the exact date being
unknown, the Union was the exclusive collective-bargaining
representative of the following employees referred to as the
Hadley Memorial unit, employed by Doctors Community
Healthcare Corporation d/b/a Hadley Memorial Hospital (Had-
ley Memorial), and, during that time, the Union had been rec-
ognized as such representative by Hadley Memorial:

All bakers, cashiers, certified pharmacy techs, C.N.A.s, cooks,
dietary clerks, E.S. employees, E.S. Aides, E.S. Floor Techs,
Engineers III, food service workers, LPNs, maintenance help-
ers, maintenance mechanics, med lab techs, medical records
clerks, medical records techs, painters, pharmacists, pharmacy
techs, phlebotomists, P.T. care techs, rehab techs, security
guards, senior medical records techs, stock clerks, stock room
coordinators, trayline checkers, unit secretaries, and utility
aids, employed by Hadley Memorial Hospital at its Washing-
ton, D.C. facility.

In or around late October or early November 2006, Respondent
purchased Hadley Memorial and since then has continued to
operate it in basically unchanged form, and has employed as a
majority of its employees individuals who were previously
employees of Hadley Memorial.
Respondent also admits in its answer that a phone call took
place on November 9, 2006, between Stephen Godoff, attorney
for the Union, and Joseph R. Damato, attorney for Respondent,
and that in response to that phone call Damato wrote Godoff a
letter dated November 17, 2006, wherein Damato stated, “I am
writing in response to your request that Specialty Hospital of
Washington-Hadley (the Company) recognize SEIU Local
1199 as the bargaining representative of the bargaining unit
recognized by the prior owners of Hadley Memorial, and begin
bargaining for a collective bargaining agreement.” In the letter,
Damato went on to state Respondent would not recognize the
Union in the unit recognized by Hadley Memorial because the
unit was an inappropriate unit for bargaining in that it included
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 822
guards with nonguards, and it included pharmacists, who are
professional employees, along with nonprofessional employees,
and the professional employees were not given their right under
the Act to decide whether they wanted to be included in a unit
of nonprofessional employees.
Respondent admits in its answer that by letter to Damato,
dated February 1, 2007, Godoff requested Respondent bargain
with the Union in the following unit, specifically excluding
guards and pharmacists, or in the alternative to provide phar-
macists the right to determine whether they should be included
in the unit:

All bakers, cashiers, certified pharmacy techs, C.N.A.s, cooks,
dietary clerks, E.S. employees, E.S. Aides, E.S. Floor Techs,
Engineers III, food service workers, LPNs, maintenance help-
ers, maintenance mechanics, med lab techs, medical records
clerks, medical records techs, painters, pharmacy techs, phle-
botomists, P.T. care techs, rehab techs, senior medical records
techs, stock clerks, stock room coordinators, trayline check-
ers, unit secretaries, and utility aids, employed by Respondent
at its Washington, D.C. facility; but excluding professional
employees, guards and supervisors as defined in the National
Labor Relations Act.2

By letter dated, February 8, 2007, Damato refused Godoff’s
request for Respondent to recognize and bargain with the Un-
ion, stating the bargaining unit that existed under the prior
ownership was fatally flawed as a matter of law, and that Re-
spondent was not prepared to recognize a modified unit. Ra-
ther, any issue regarding union representation should be decid-
ed by the Board’s election rules and processes.
The parties stipulated to the following at the hearing: At the
time of recognition by Hadley Memorial on November 15,
2005, there were 169 employees in the Hadley Memorial unit,
of which were 10 guards and 5 were pharmacists. The parties
submitted a joint stipulation, dated June 1, 2009, following the
close of the hearing showing that as of November 13, 2006,
when the Respondent took over the operation of the Hospital,
there were 169 employees in Hadley Memorial unit, including
12 guards and 5 pharmacists. At that time, all 169 employees
had been previously employed by the predecessor employer.
On February 1, 2007, the date of the Union’s request for recog-
nition in the amended unit excluding guards and pharmacists
(amended unit), there were 163 employees in the Hadley Me-
morial unit, 157 of who had previously been employed by Had-
ley Memorial of which 11 were guards, and 4 were pharma-
cists. At that time, there were 148 employees in the amended
unit, 142 of who had previously been employed by Hadley
Memorial. On December 31, 2007, there were 192 employees
employed by Respondent in the amended unit, 136 of who had
previously been employed by Hadley Memorial. On April 30,
2009, there were 178 employees in the amended unit employed
by Respondent, with 108 having been previously employed by

2 Respondent stipulated at the hearing that it employed a representa-
tive complement of employees at the time the Union made its second
request to bargain.
Hadley Memorial.3
A. Procedural History
The initial complaint in this matter issued on June 29, 2007,
setting the trial for August 22, 2007.4 By letter dated July 24,
2007, Respondent sought a 30-day postponement to the trial.
The amended complaint issued on July 24, 2007, setting the
trial for October 9, 2007. On September 14, 2007, Region 5
issued an order rescheduling the hearing to December 17, 2007.
On November 16, 2007, Region 5 issued an order postponing
the hearing indefinitely. On December 3, 2007, Respondent
filed a “Motion for Summary Judgment” with the Board. On
January 17, 2008, the Board issued an “Order Transferring
Proceeding to the Board and Notice to Show Cause.”
On November 25, 2008, the Board, by a two-member panel,
issued an “Order Denying Motion,” in which the Board denied
Respondent’s motion for summary judgment and remanded the
matter for hearing. In its “Order Denying Motion,” the Board
stated the parties’ pleadings reveal that certain facts are not
disputed. The facts the Board stated are not disputed are sum-
marized as follows: The facility at issue is a hospital providing
long-term acute care. On November 14, 2005, the predecessor
Employer, Hadley Memorial, voluntarily recognized the Union
in the unit set forth above. The Board stated that of the 169
employees in the unit at that time, about 10 were security
guards and 5 were pharmacists. In October 2006, Respondent
purchased Hadley Memorial and took over operations on No-
vember 13. Respondent hired virtually all unit employees, who
composed a majority of the Respondent’s employees, and it
maintained the employees’ terms and conditions of employ-
ment, at least initially. Respondent’s takeover involved no
operations hiatus. Respondent continued to provide the same
services as that of the predecessor Employer, at the same loca-
tion, for the same clients. When Respondent took over the
facility, there were about 177 employees in the unit, including

3 As jointly requested by the parties, I have admitted into evidence
the cover letter dated June 2, 2009, the attached joint stipulation dated
June 1, 2009, and Jt. Exhs. 1, 2, and 3 attached thereto. I am also ad-
mitting in evidence R. Exh. 13, as requested by the parties in their joint
submission. Upon the admission of the described documents, the rec-
ord is closed.
4 On June 29, 2007, Respondent filed a RM petition. In its cover let-
ter to the petition, written by its attorney, Joseph Damato, Respondent
stated, “The Petition is being filed in response to the Union’s demand
for recognition on February 1, 2007, in which there has never been a
finding of majority status. The unit described in the enclosed Petition
approximates to the extent possible the unit we understand the Union is
currently seeking. There has never been a finding regarding the appro-
priateness of this unit, but if the Region and the Union are prepared to
have an election in this unit, Specialty Hospital of Washington-Hadley
will, for the purposes of this case, concede that the unit is appropriate.”
By letter dated July 10, 2007, the Region dismissed the petition citing
the outstanding unfair labor practice complaint alleging the appropri-
ateness of the unit, and stating that “The Employer made no claim that
it believes the Union has lost its majority support among the employ-
ees, nor did it submit any evidence of objective considerations to sup-
port such a claim.” By Order dated January 15, 2009, the Board af-
firmed the Region’s dismissal of the RM petition. Thus, Respondent
was willing to concede the appropriateness of the currently disputed
unit when it suited its purposes to do so.
SPECIALTY HOSPITAL OF WASHINGTON-HADLEY, LLC 823
about 12 statutory guards and 4 pharmacists. The Board further
stated, that “the parties do not dispute that the original unit was
not an appropriate unit, and we agree. Second, the General
Counsel concedes that the Respondent was not obligated to
bargain with the Union in the original unit, and again, we agree.
Third, the parties appear to agree that, under the standards set
out in Burns and its progeny, there is ‘substantial continuity’
between the Respondent’s enterprise and Doctors (Hadley Me-
morial): the business of both employers is essentially the same;
the Respondent’s employees are doing the same jobs in the
same working conditions; and the Respondent performs the
same services for essentially the same customers.” (Footnotes
omitted.)
In its November 25 remand, the Board went on to state,
“This is an issue of first impression. The parties have cited no
binding cases, and we have found none, that address whether a
Burns-successorship bargaining obligation can attach under the
circumstances presented here: a successor employer has lawful-
ly refused the union’s initial demand for bargaining in a unit
that was inappropriate both before and after the change of own-
ership; and the union later demands bargaining in a unit that the
union unilaterally created by disclaiming interest in certain unit
employees, and that it now claims is appropriate.”
Respondent filed a “Motion for Reconsideration and Motion
to Stay,” dated December 3, 2008, of the Board’s “Order Deny-
ing Motion.” Respondent’s argument was based, in part, on its
contention that a two-member panel of the Board was not
properly constituted to consider its initial motion for summary
judgment. By order dated, January 7, 2009, the Regional Di-
rector set the trial in this case for March 23, 2009. The Board
issued an “Order Denying Motion for Reconsideration and
Motion to Stay Hearing,” on January 26, 2009. On February 3,
2009, Respondent requested a postponement in the hearing
until May 11, 2009, premised on the lack of availability of lead
counsel Damato. On February 13, 2009, the Regional Director
issued an order postponing the hearing to May 12, 2009. On
May 6, 2009, Respondent filed with the division of judges a
“Motion to Reschedule the Hearing,” citing Laurel Baye
Healthcare of Lake Lanier, Inc., v. NLRB, No. 08-1162 (D.C.
Cir. May 1, 2009), renewing its argument that a two member
panel of the Board does not constitute an appropriate quorum
for the consideration of Respondent’s initial motion for sum-
mary judgment. On May 7, 2009, Respondent filed with the
Board a “Second Motion for Reconsideration and Motion to
Stay,” The chief administrative law judge issued an “Order
Denying Motion to Reschedule Hearing” on May 8, 2009. The
Board, also on that date, issued an “Order Denying Second
Motion for Reconsideration and Motion to Stay Hearing.”
The hearing was held on May 12 and 13, 2009. Damato did
not appear as counsel for Respondent at the hearing, although at
least one and possibly two of Respondent’s requests to the Re-
gion for postponement of the hearing were based on the neces-
sity of his being there. It should also be pointed out that I did
not view the Board’s Order denying Respondent’s motion for
summary judgment to restrict the scope of this hearing in any
way. The Board stated in its November 25, 2008 Order at fn. 6
that, “Our denial of summary judgment is without prejudice to
the Respondent’s right to renew its arguments to the adminis-
trative law judge and to the Board on any exceptions that may
be filed to the judge’s decision. In addition, we take no posi-
tion on the resolution of the novel successorship question pre-
sented here.” I did not restrict any arguments at the hearing
that Respondent sought to raise based on the Board’s Order.
Rather, I conducted the hearing based on my own views as a
judge as to what was appropriate, as if no motion for summary
judgment had been filed.
B. The Evidence Presented at the Trial
1. Continuity of operations
Donovan Mabry was working for Respondent as a painter, at
the time of his testimony, a position he has held at the hospital
for 5 years. Mabry had the same supervisor before and after
Respondent took over the operation of the hospital. Mabry
testified he used the same equipment before and after the take-
over, and there was the same staffing in the maintenance de-
partment before and after the takeover. Mary Sistrun Williams
works for Respondent and had worked for the hospital for 9
years. Williams was a patient care technician with Hadley
Memorial, during which time she provided services for patients
such as bathing, feeding, and walking. Williams testified her
job functions did not change when Respondent took over. Wil-
liams’ supervisor at Hadley Memorial was Beth Michaels, who
remained Williams’ supervisor for a few months when Re-
spondent took over. Williams testified the equipment did not
change that she used at Hadley Memorial and at Respondent.
2. Bargaining history at Hadley Memorial
Rhonda Brady works for the Union. In January 2006, Brady
was assigned bargaining with Hadley Memorial as part of her
responsibility.5 Upon receiving the Hadley assignment, Brady
contacted Janine Finck-Boyle (Boyle), then hospital administra-
tor, to set up bargaining dates. On January 20, 2006, Brady
faxed to Boyle a letter requesting information to allow the Un-
ion to prepare for bargaining. By letter to Brady, dated January
25, 2006, Boyle responded to Brady’s letter and she listed the
information Hadley Memorial would provide in response to
Brady’s request for information. Brady responded to Boyle by
fax dated February 1, 2006, stating she would be in the hospital
on that date to pick up the materials Boyle had ready. By letter
dated February 22, 2006, Brady sent Boyle a list of 12 named
employees who were to be on the Union’s bargaining commit-
tee for the then scheduled March 1 negotiation session. Brady
testified Hadley Memorial allowed the Union to hold weekly
membership meetings in the hospital cafeteria.

5 The pleadings by the parties to the Board concerning Respondent’s
motion for summary judgment reveal that on November 14, 2005, an
arbitrator issued a letter to the Union and Hadley Memorial certifying
that a majority of employees in the then agreed-upon unit signed cards
authorizing the Union to represent them for collective bargaining. The
agreed-upon unit at that time contained 169 employees, 5 classified as
pharmacists, and 10 as security guards. As a result of the card check,
Hadley Memorial recognized the Union as the collective-bargaining
representative of the employees in the then agreed-upon unit and the
Union and Hadley Memorial began bargaining for a contract as detailed
above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 824
Brady testified the first bargaining session took place on
March 30, 2006, at Hadley Memorial. Present for the Union
were, Stephen Godoff, the Union’s attorney, then Union Offi-
cial Bruce Lang, Brady, and the employee members of the bar-
gaining committee. Present for Hadley Memorial were Chief
Operating Officer Ron Davis and Boyle. During the session,
the Union presented Hadley Memorial with the Union’s initial
written proposal, and the parties reviewed the proposal. Brady
testified she received Respondent’s written response to the
Union’s proposal in May. It is reflected on page one of Hadley
Memorial’s May proposal that Hadley Memorial was seeking
to ensure that the following positions were excluded from the
bargaining unit:

[A]ll other employees, registered nurses, physical therapists,
occupational therapists, speech therapists, registered and certi-
fied respiratory therapists, recreation therapists, and recrea-
tion/activity technicians. [GC Exh. 10, p. 1.]

Brady testified she participated in another bargaining session
on July 17, 2006, with Hadley Memorial. She testified the
same attendees were there for both sides, and the meeting was
held at the same room at the hospital. The meeting lasted a
couple of hours. Brady faxed Boyle a letter dated July 14,
2006, listing 11 employees on the Union’s bargaining commit-
tee who were scheduled to attend the July 17 meeting. Brady
testified that, during the July 17 session, they discussed Hadley
Memorial’s reaction to the Union’s initial proposals. She testi-
fied there were some areas of agreement, including union secu-
rity, checkoff, and the definition of part-time employees. By
email dated July 18, Boyle notified Brady that she would let her
know the following week as to Boyle’s availability for another
session. Brady testified the Union continued to hold meetings
with employees after July 17, in the hospital’s cafeteria. Brady
identified a flyer notifying the employees of a July 20, 2006,
meeting. By email to Boyle dated July 27, 2006, Brady re-
quested bargaining dates, and made another request for infor-
mation. Brady repeated a request for bargaining dates in an
email to Boyle dated August 4. Boyle responded by email that
date stating Hadley Memorial officials would not be able to
meet for bargaining until the end of September 2006. By email
to Boyle dated September 12, 2006, Brady renewed her request
for bargaining dates. Boyle responded stating Boyle was be-
ginning maternity leave on September 15, and would not be
able to begin bargaining the following week. Boyle stated in
the email that, “I also want to state, as I did during the call to-
day, we are in the process of a sale transaction that should be
completed in the next few weeks.”
Brady testified she did not attend any other bargaining ses-
sions with Hadley Memorial. Brady testified Boyle told her to
contact an attorney named Cindy Sehr. Brady testified she
notified Godoff and the Union’s executive vice president, John
Reid, of the contact information. Brady testified she continued
to hold the Union’s weekly meetings at the hospital in an area
in the cafeteria provided for the Union. She testified the last
employee meeting at the hospital was held in November 2006.
Brady testified, while conducting the membership meeting, she
was approached by a man who identified himself as part of the
hospital administration. He asked Brady to leave, and she
complied with the request. Brady testified that, thereafter, the
Union scheduled daily visits in front of the hospital where they
handed out literature, and talked to employees to maintain the
Union’s presence and to keep them informed.
Godoff testified he contacted Hadley Memorial attorney
Cindy Sehr in September 2006, when Godoff was notified the
Union was having difficulty scheduling a bargaining session.
Godoff told Sehr the Union was concerned and wanted to know
why there was difficulty in scheduling further sessions. Godoff
told Sehr the Union wanted Godoff to set a deadline and to
notify Sehr that, if the deadline was not met, the Union would
file an unfair labor practice charge for refusal to bargain. Sehr
asked Godoff if the Union would grant forbearance, that there
were difficulties with Boyle’s maternity leave, and that Hadley
Memorial was exploring a stock sale. Godoff testified Sehr
assured him they had every intention of returning to the table.
Godoff told Sehr he was not in a position to grant Sehr’s re-
quest for forbearance and the response would have to come
from the executive vice president of the Union.
By letter dated September 25, 2006, Hadley Memorial’s
COO Mounce wrote to Reid stating the hospital was in a transi-
tion period due to Boyle being on maternity leave and the sale
of the hospital’s stock which was expected to close within the
next 2 weeks. It was stated in the letter, “We do not expect to
be able to schedule a bargaining session until after the sale is
consummated; however, we have every intention to continue
bargaining in due course after completion of the transition peri-
od.” Reid responded to Mounce by letter dated October 18, in
which Reid summarized the course of bargaining to date, and
stated if the employer did not commence bargaining on or be-
fore October 27, 2006, the Union would take legal steps to
ensure Hadley Memorial’s return to the bargaining table.
On November 6, 2006, Mounce wrote Reid as follows:

In response to your letter to me dated October 18, 2006, this is
to advise you that the sale of the assets of Hadley Memorial
Hospital to Specialty Hospitals of America, LLC has taken
place. Although we previously advised you that the sale was
to be a sale of stock, in the last several days of negotiations
the form of the transaction was changed to an asset sale. Bri-
an Wells is the current chief executive officer of the Hospital;
please contact him at the Hospital for all further union discus-
sions.

Godoff testified that around November 9 Godoff was con-
tacted by Attorney Joseph Damato, who identified himself as
counsel for the new owners of the hospital. Godoff told
Damato the Union was prepared to begin bargaining with the
new owners towards a contract. Damato told Godoff he was
very much looking forward to bargaining another contract with
Godoff as they had bargained contracts together successfully in
the past. Damato then told Godoff that he would provide Go-
doff with bargaining dates.6 However, Godoff identified a
letter dated November 17, 2006, from Damato to Godoff stating
it was in response to Godoff’s request to bargain on behalf of

6 There is no contention before me that Damato’s remarks to Godoff
constituted a voluntary recognition of the Union on the part of Re-
spondent.
SPECIALTY HOSPITAL OF WASHINGTON-HADLEY, LLC 825
the Union. In the letter, as set forth above, Damato stated in
reviewing materials related to the Union’s request that the bar-
gaining unit appeared to be inappropriate under the Act in that
it included guards with nonguards, and that it included pharma-
cists who are professional employees with nonprofessional
employees, and the professional employees were not afforded
their right under the Act to decide on their inclusion in the unit.
Damato went on to state that Respondent was not prepared to
recognize the Union as the bargaining representative in this
inappropriate unit. By letter to Damato, dated February 1,
2007, Godoff stated the Union was willing to disclaim any
interest in representing Respondent’s security guards, and to
disclaim interest in representing the pharmacists or to afford the
pharmacists a right to decide for or against their inclusion in the
unit. By letter dated February 8, 2007, Damato continued to
deny the Union’s request for recognition.
3. Respondent’s operations
Jerry Amato is Respondent’s CEO. Amato testified Re-
spondent is a single facility providing long-term acute care
(LTAC) and skilled nursing services. Amato’s responsibilities
include: the day-to-day operations of the entire facility, market-
ing, financial review, quality improvement, quality measures,
employee-staff relationships, and community service. The
employees and managers ultimately report to Amato. The first
floor is where the administrative offices are located, and all
patient care is provided on the second and third floors.
Amato testified there are 83 LTAC beds at Respondent. The
LTAC services are provided on the second floor, which is con-
sidered its own unit. The LTAC core specialties include venti-
lator management, complex respiratory patients, severe
wounds, long-term IV antibiotics, and medically complex pa-
tients transferred from other hospitals. Amato testified Re-
spondent is distinguished from a regular hospital based on
length of stay. Amato testified that most other hospitals based
on payment sources will have a length of stay between 3 and 7
days. Based on Respondent’s Medicare reimbursement, its
patients stay 25 days or longer. In addition, to LTAC inpatient
care, Respondent provides skilled nursing services on the third
floor. Skilled nursing services include chronic ventilator care,
serving patients needing feedings tubes, or with chronic trache-
otomies. There are 62 skilled nursing beds at the hospital,
which is considered its own unit. Patients using skilled nursing
beds stay longer than those in acute care, as their care is of a
chronic nature. The LTAC and the skilled nursing facility units
are the only patient care units at the hospital.
Amato testified in the LTAC unit in 2005, the average length
of the patient stay was 27 days; and in 2006 it was 25 days. In
the skilled nursing unit the average length of patient stay in
2005 was 119 days, and it was 152 days in 2006. In 2005, there
were 887 patients admitted to LTAC, and 138 in skilled nurs-
ing. The number of patients admitted to the LTAC unit in 2006
was 1005 and 158 in the skilled nursing unit. In 2005, 82 per-
cent of the Hospital’s revenues were derived from the LTAC
unit, and the rest of the income came from skilled nursing. In
2006, 81 percent came from the LTAC unit.
Shelita Domino-Stoddard (Stoddard) was employed by Re-
spondent as human resources coordinator, at the time of her
testimony. As such, Stoddard was the highest level person in
the human resources department. Stoddard testified Respond-
ent basically just brought the employees over from Hadley
Memorial in its November 2006 start up. She testified the next
time they hired would have been in December when they had
their orientation. Stoddard testified that was to replace people
who may have left or to fill vacant positions. Stoddard testi-
fied, to her knowledge, Respondent has not increased the num-
ber of beds since it purchased Hadley Memorial. However,
Stoddard testified the staff size has increased by 100 or more.
Stoddard testified the increase was over the years in that there
was not a drastic hiring increase. Stoddard testified that as of
February 1, 2007, all Respondent’s employees received the
same benefits, were covered by the same employment policies
and rules, and were covered by the same handbook, which was
the handbook used by Hadley Memorial. The Hadley Memori-
al handbook was not replaced by Respondent’s handbook until
January 2008. The employees at the hospital all had the same
biweekly pay period.
4. The bargaining unit
It was Respondent’s position at the hearing that the bargain-
ing unit for which recognition was sought on February 1, 2007,
is inappropriate because it excludes respiratory therapists (RTs)
and recreation technicians. The parties stipulated that LPNs,
who are included in the amended bargaining unit, are technical
employees. The parties also stipulated that the stockroom co-
ordinator, stock clerk, and the central supply technician (utility
aide) positions included in the amended bargaining unit are
nonprofessional employees and nontechnical employees. The
status of the amended bargaining unit will be discussed in detail
in the Analysis section of this decision.
C. Analysis
1. Respondent’s status as a successor employer and the
Union’s agreement to remove professional employees
and guards from the predecessor’s bargaining unit
In NLRB v. Burns Security Services, 406 U.S. 272, 278–279
(1972), a union was certified by the NLRB, and reached a col-
lective-bargaining agreement with an employer. A few months
after the certification, the employer lost its contract to provide
security services, and the contract was taken over by Burns,
which employed 27 of the predecessor’s 42 security guards.
The Court stated, “It is undisputed that Burns knew all the rele-
vant facts in this regard and was aware of the certification and
of the existence of a collective-bargaining contract. In these
circumstances, it was not unreasonable for the Board to con-
clude that the union certified to represent all employees in the
unit still represented a majority of the employees and that
Burns could not reasonably have entertained a good-faith doubt
about that fact. Burns’ obligation to bargain with the union
over terms and conditions of employment stemmed from its
hiring of Wackenhut’s employees and from the recent election
and Board certification. It has been consistently held that a
mere change of employers or of ownership in the employing
industry is not such an ‘unusual circumstance’ as to affect the
force of the Board’s certification within the normal operative
period if a majority of employees after the change of ownership
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 826
or management were employed by the preceding employer.” In
Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987), the
Court held that an employer which purchases the assets of
another is required to recognize and bargain with a union
representing the predecessor’s employees when there is a
“substantial continuity” of operations after the takeover, and
following a demand for bargaining there is a majority of the
new employer’s work force, in an appropriate unit, consist-
ing of the predecessor’s employees at a time when the suc-
cessor has reached a “substantial and representative com-
plement.” The Court stated, even in situations where there
has not been a recent election certification by the NLRB, a
union that has previously been recognized through an
NLRB certification is entitled to a rebuttable presumption of
majority support. The Court stated at 482 U.S. at 38–40
that:

These presumptions are based not so much on an
absolute certainty that the union’s majority status will
not erode following certification, as on a particular pol-
icy decision. The overriding policy of the NLRB is
“industrial peace.” The presumptions of majority sup-
port further this policy by promoting stability in collec-
tive-bargaining relationships, without impairing the
free choice of employees. (Citations omitted.)

. . . .

The rationale behind the presumptions is particular-
ly pertinent in the successorship situation and so it is
understandable that the Court in Burns referred to
them. During a transition between employers, a union
is in peculiarly vulnerable position. It has no formal and
established bargaining relationship with the new em-
ployer, is uncertain about the new employer’s plans,
and cannot be sure if or when the new employer must
bargain with it. . . . Accordingly, during this unsettling
transition period, the union needs the presumptions of
majority status to which it is entitled to safeguard its
members’ right and to develop a relationship with the
successor.
The position of the employees also supports the ap-
plication of the presumptions in the successorship sit-
uations. If the employees find themselves in a new en-
terprise that substantially resembles the old, but without
their chosen bargaining representative, they may well
feel that their choice of a union is subject to the vagar-
ies of an enterprise’s transformation. This feeling is not
conducive to industrial peace. . . . Without the pre-
sumptions of majority support and with the wide varie-
ty of corporate transformations possible, an employer
could use a successor enterprise as a way of getting rid
of a labor contract and of exploiting the employees’ hesi-
tant attitude towards the union to eliminate its continu-
ing presence.7

In Sunrise Nursing Home, 325 NLRB 380, 381 (1998), it
was noted, citing Fall River Dyeing Corp., supra at 43, that
“The Court further instructed that these characteristics of the
substantial continuity factor were to be assessed primarily from
the perspective of the involved employees, that is, ‘whether
‘those employees who have been retained will . . . view their
job situations as essentially unaltered.”‘ (Additional citations
omitted.) It was stated in Sunrise, supra at 381, that:

While the Board has held subsequent to Burns, supra, that
employees acquired from a predecessor “themselves must
constitute an appropriate unit,” Irwin Industries, 304 NLRB
78 (1991), the Board however, has also held that the Act does
not require an evidently only, ultimately, or most appropriate
unit, but only that it be at least appropriate in nature. Vincent
M. Ippolito, Inc., 313 NLRB 715 (1994), Morand Bros. Bev-
erage Co., 91 NLRB 409 (1950).

In Van Lear Equipment, Inc., 336 NLRB 1059, 1063 (2001),
in finding a respondent was successor employer the Board stat-
ed:

The test for determining successorship has been sum-
marized as follows: An employer, generally, succeeds to
the collective-bargaining obligation of a predecessor if a
majority of its employees, consisting of a “substantial and
representative complement,” in an appropriate bargaining
unit are former employees of the predecessor and if the
similarities between the two operations manifest a “‘sub-
stantial continuity’ between the enterprises.” Fall River
Dyeing Corp. v. NLRB, 482 U.S. 27, 41–43 (1987), citing,
inter alia, NLRB v. Burns Security Services, 406 U.S. 272,
280 fn. 4 (1972) (footnote omitted.).

In Van Lear Equipment, Inc., supra at 1064, the Board spe-
cifically noted that the successorship doctrine applies even if
the predecessor employer is a public employer. Implicit in such
a finding was that the union was not certified by the NLRB as
the bargaining representative at the predecessor employer and
that such a certification is not a prerequisite to a successorship
finding. As stated in Lincoln Park Zoological Society, 322
NLRB 263, 265 (1996), enfd. 116 F.3d 216 (7th Cir. 1997):

Respondent does not dispute that the successorship doc-
trine applies even though the predecessor was a public
employer. See JMM Operational Services, 316 NLRB 6
(1995). Respondent claims, however, that the General
Counsel must nevertheless establish that the Union had
achieved majority status as the predecessor’s bargaining
representative. There is no such requirement in successor-
ship cases. Indeed, it is clear from the Supreme Court’s
opinion in Fall River that the usual presumptions of major-

7 The Court found in Fall River that the successor employer had a
bargaining obligation even though there was a 7-month hiatus between
the predecessor’s demise, and the successor’s start up. The court held
that in the circumstances there the 7-month hiatus was not sufficient to
disrupt the continuity of operations.
SPECIALTY HOSPITAL OF WASHINGTON-HADLEY, LLC 827
ity status inherent in Board law apply in successorship sit-
uations to ensure stability in collective-bargaining rela-
tionships. 482 U.S. at 37–39. See also Saks Fifth Avenue,
247 NLRB 1047, 1051 and fn. 10 (1980), enfd. 634 F.2d
681 (2d Cir. 1980). Such presumptions include those that
flow from voluntary or historical recognition and contrac-
tual relationships. See, in addition to Saks, supra, Vincent
M. Ippolito, Inc., 313 NLRB 715, 721 (1994), and
Exxel/Atmos, Inc., v. NLRB, 28 F.3d 1243, 1247 (D.C. Cir.
1994).

Similarly, in Proxy Communications, 290 NLRB 540, 541
(1998), enfd. 873 F.2d 252 (2d Cir. 1989), the Board stated:

It is well settled that there is a rebuttable presumption in favor
of a union’s majority status following the certification year.
This presuoted that the successorship doctrine applies even if
the prmption also applies where the union has been accorded
voluntary recognition as in the instant case. Further, this pre-
sumption applies in the successorship context.

In Proxy Communications the union had been granted volun-
tary recognition by the predecessor employer. The Board con-
cluded the respondent was a successor employer and it suc-
ceeded to the predecessor’s obligation to bargain with the un-
ion. id. at 541. The Board went on to state that “an employer
continuing the predecessor’s business without change stands in
shoes of predecessor vis a vis its relationship with the union.”
Id at 542 fn. 16. See also Lockheed Engineering Co., 271
NLRB 119 (1984), where a successor employer was found to
have a bargaining obligation with a union, although the union
had never reached a collective-bargaining agreement with the
predecessor employer.
In Southern Power Co., 353 NLRB 1085, 1085 (2009), it
was stated:

[T]he Board has assigned the same weight to bargaining
history in cases where the unit in the successor’s operation
is only a portion of the predecessor’s bargaining unit. See
White-Westinghouse, 229 NLRB 667, 675-675 (1977),
enfd. sub nom. Electrical Workers v. NLRB, 604 F.2d 689
(D.C. Cir. 1979) (successor’s employees in five plants of
the predecessor’s larger multiplant unit remained an ap-
propriate unit), and Community Hospitals of Central Cali-
fornia v. NLRB, 335 F.3d 1079, 1085 (D.C. Cir. 2003)
(stating that there is no authority supporting the successor
employer’s argument that the presumptive appropriateness
of a unit of historically-represented employees does not
apply to a subset of the predecessor’s recognized unit).

In Van Lear Equipment, supra, an employer was found to be
a successor employer when a union represented a bargaining
unit at the predecessor consisting of bus drivers, mechanics,
maintenance workers, and secretaries (the PVSD unit) which
included 38 employees, 21 of who were bus drivers. The Board
in finding the respondent employer was a successor employer
stated that as of August 1997, the respondent employed 26 bus
drivers at Panther Valley, 19 of who were former PVSD driv-
ers, thus the vast majority of the Panther Valley drivers were
former PVSD unit employees. The Board stated:

Additionally, even though the Respondent did not take
over all the operations and functions of the prior PVSD
bargaining unit—the custodians, maintenance workers,
and secretaries remained with PVSD—a finding of suc-
cessorship is not precluded. Indeed, the Board has fre-
quently found substantial continuity where the successor
employer has taken over only a discrete portion of the pre-
decessor’s heterogeneous bargaining unit. See Bronx
Health Plan, 326 NLRB 810 (1998), enfd. 203 F.3d 51
(D.C. Cir. 1999); M.S. Management Associate, 325 NLRB
1154 (1998), enfd. Sub nom. NLRB v. Simon De-Bartelo
Group, 241 F.3d 216 (7th Cir. 2001); Lincoln Park Zoological
Society, 322 NLRB 263 (1996), enfd. 116 F.3d 216 (7th Cir.
1997); Louis Pappas Homosassa Springs Restaurant, 275
NLRB 1519 (1985); and Stewart Granite Enterprises, 255
NLRB 569 (1981).

See also Shares, Inc., 343 NLRB 455, 460 (2004), enfd. 433
F.3d 939 (7th Cir. 2006), stating the “Board has frequently
found substantial continuity where the successor employer has
taken over only a discrete portion of the predecessor’s hetero-
geneous bargaining unit.” (Citations omitted.) In Tree-Free
Fiber Co., 328 NLRB 389 (1999), a successor bargaining obli-
gation was found when the predecessor employed 500 employ-
ees, and the successor only employed 50.
In the instant case, Respondent took on all of the predeces-
sor’s employees and maintained all of the predecessors opera-
tions. Nevertheless, the bargaining unit requested by the Union
to Respondent has been diminished in size, because the Union
has acquiesced in Respondent’s objection to inclusion of the
guards and professional employees who were included in the
bargaining unit at the predecessor. The issue of whether a un-
ion can retain representational status when it agrees to amend
an agreed upon bargaining unit of a predecessor employer, to
exclude statutorily excluded positions, to perfect the unit for its
bargaining demand to the successor employer has been ad-
dressed previously by two administrative law judges. The
judge’s opinions, while not binding, are instructive here. In
Northern Montana Health Care, 324 NLRB 752, 767, enfd. in
part 178 F.3d 1089 (9th Cir. 1999), amended 161 LRRM 2576
(9th Cir. 1999), the judge found certain LPNs who had been
included in a predecessor employer’s bargaining unit to be
supervisors. The judge nevertheless found a successor employ-
er to have a bargaining obligation with the union there even
though he excluded the LPN’s from the bargaining unit pertain-
ing to the successor employer.8 In Northern Montana Health

8 In Northern Montana Health Care, supra, the union’s demand for
recognition was based on a unit that included LPNs. However, the
union and the General Counsel took the position at trial that the re-
spondent had an obligation to bargain even if the LPNs were found to
be supervisors and removed from the requested unit. The Board, in
reviewing the judge’s decision, held the LPNs were not supervisors and
included them in the bargaining unit for the successor employer. Thus,
the Board never reached the issue which is similar in nature to that
presented in the present case whether a bargaining obligation pertains
to a successor employer when a group of individuals is excluded from
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 828
Care, there were 5 LPNs in a unit of 75 employees at the pre-
decessor employer. The judge stated as follows:

[W]hat seems to remain respecting the continuity of bargain-
ing unit is that the instant case differs from the situations pre-
sented in the cases cited by the General Counsel and the
Charging Party in that the new employer herein acquired all
the classifications in the previous employer’s recognized unit,
but that some of those classifications are not properly part of
the new unit.
I have found no cases which match the precise factual
situation presented here, i.e., discussing successorship unit
continuity where the new unit differs from the old unit be-
cause only a portion of the operations was acquired but ra-
ther because the old unit was inappropriate. I am able to
perceive no significant difference between a situation
where the new bargaining unit arises as a result of a partial
assumption of the predecessor’s operation or because the
appropriate unit simply excludes some of the employees
previously included in the predecessor unit. The test of
unit continuity turns on the roots or origins of the prede-
cessors’ appropriate unit employee compliment. In both
the situations discussed in the cases cited, supra respecting
partial acquisitions and the situation here where licensed
practical nurses are excluded from a unit, the new units are
both appropriate under Section 9 of the Act and have a di-
rect relationship to a portion of the predecessor unit.9
[Footnotes omitted.]

I also do not find a significant difference between the situa-
tion here, where a union voluntarily drops some positions from
a predecessor’s unit based on statutory exclusions, and the cas-
es cited above, where an employer only acquires a portion of a
predecessor’s operation, and thereby diminishes the size of the
bargaining unit. The principle calculation made in the latter
situation is whether the new unit is an appropriate unit, whether
there is a substantial continuity of operations, and whether the
successor employer maintains a majority of employees in the
new unit from the predecessor employer at the time the succes-
sor employer obtains a representative complement of employ-
ees. See, Van Lear Equipment, Inc., 336 NLRB 1059, 1063
(2001); Tree-Free Fiber Co., 328 NLRB 389 (1999); Bronx
Health Plan, 326 NLRB 810 (1998), enfd. 203 F.3d 51
(D.C. Cir. 1999); M.S. Management Associates, 325 NLRB
1154 (1998), enfd. 241 F.3d 216 (7th Cir. 2001); Lincoln

the historic unit based on statutory considerations as opposed to a suc-
cessor employer only acquiring a portion of the unit.
9 Similarly, in Concord Associates, 1999 WL 3345473, a union was
certified in a unit by the Board, and over time the parties expanded the
unit to include guards and supervisors. The successor employer refused
to recognize the union because it only acquired a small portion of the
predecessors operation, and because the predecessor’s unit included
guards and supervisors. There, as here, the union made a second de-
mand for recognition to the successor employer, which unlike the un-
ion’s initial demand excluded security guards. The judge found a bar-
gaining order warranted for the successor employer despite a substan-
tial diminution of the size of the successor employer’s unit to that of the
predecessor, and although the unit of the predecessor included guards
and supervisors. The judge’s decision was not appealed to the Board.
Park Zoological Society, 322 NLRB 263 (1996), enfd. 116
F.3d 216 (7th Cir. 1997); Louis Pappas Homosassa Springs
Restaurant, 275 NLRB 1519 (1985); and Stewart Granite
Enterprises, 255 NLRB 569 (1981).
In the instant case, Respondent stipulated it employed a rep-
resentative complement of employees on February 1, 2007, the
date the Union made its request for recognition in the amended
unit. At that time, there were 148 employees in the amended
unit, 142 of who had been employed by Hadley Memorial.10
As set forth in the cases cited above, the Board relies on pre-
sumptions inherent in successorship situations for majority
status findings. That is, the Board will presume the union
maintains majority status in the new shrunken unit at the suc-
cessor, based upon its hiring a majority of the employees in the
predecessor unit in the new unit at the time there is a repre-
sentative complement of employees in the new unit. The Board
does not go back in time and calculate whether this new group-
ing of employees actually voted for the union in the new unit at
the time of the Board election, or whether they supported the
union as a majority in the new unit, at the time the union was
initially recognized by the predecessor if there was a voluntary
recognition. The Board has also not used concerns that the
employees may not have initially selected union, if they had
known at the time that the bargaining unit would have been
smaller than initially recognized in successorship cases. Ra-
ther, in the interest of industrial stability the Board relies on the
presumption of majority status amongst the successor’s em-
ployees articulated by the Court in Fall River. That a majority
status amongst successor’s employees is presumed based on
that employer’s hiring a majority of the predecessor’s employ-
ees in the new unit when that unit is found to be appropriate for
collective bargaining.11

10 The Union agreed to the removal of 11 security guards and 4
pharmacists from the amended unit. There was no showing that the
functions of the pharmacists and/or the security guards was so integrat-
ed into the unit so as to destroy the fabric of the unit. I do not find the
circumstances here any different from the cases where successorship is
found when the successor only acquires a portion of the original unit.
11 Respondent relies on such cases as NLRB v. Beverly Health & Re-
hab. Services, 120 F.3d 262 (4th Cir. 1997); NLRB v. Parsons School of
Design, 793 F.2d 503 (2d Cir. 1986); NLRB v. Lorimar Productions,
Inc., 771 F.2d 1294 (9th. Cir. 1985); and Hamilton Test Systems, N.Y.,
v. NLRB, 743 F.2d 136 (2d Cir. 1984), in support of its argument that
the Union could not unilaterally alter the predecessor’s unit. First, I do
not find that the Union unilaterally altered the predecessors unit. Ra-
ther, the Union acquiesced in Respondent’s objections to the predeces-
sors unit. Moreover, the four cited cases involve the propriety of initial
Board conducted elections where larger units were voted on by em-
ployees, ballots were then impounded, and the vote was counted for a
smaller unit than the one initially advertised in the Board’s election
notice. The reviewing courts concluded after the fact reduction of the
announced unit may have altered the outcome of the election if the
actual unit had been announced to employees before they voted. These
cases do not pertain to historical bargaining units and the attendant
presumptions applicable to successor employers. I do not find that
concepts in postelection challenges apply to, or should serve to alter
principles in a long of line successorship cases where established units
are diminished as a result of changes in scope of operations of the suc-
cessor from that of the predecessor, or objections to the established unit
SPECIALTY HOSPITAL OF WASHINGTON-HADLEY, LLC 829
The Board does not eliminate historical bargaining units
merely because they include statutorily excluded employ-
ees. This is particularly so when the Union acquiesces in
the removal of those employees from the bargaining unit.
The Board has allowed in a variety of circumstances the re-
moval of guards from established mixed units of guards and
nonguards without dismantling the bargaining unit. In Libbey-
Owens-Ford Glass Co., 169 NLRB 126, 127 (1968), the Board
used a unit clarification petition filed by a union to remove
guards from a longstanding bargaining unit. The Board stated
as follows:

The Employer contends that both the multiplant unit and
the Brackenridge unit includes guards as defined in the
Act, and it contends that neither of these units may be clar-
ified by the Board because to do so would be in contraven-
tion of Section 9(b) of the Act. That section precludes the
Board from finding appropriate any unit which includes
with other employees any individual employed as a guard.
The Union has stated, however, that it seeks clarification
of its multiplant unit with the exclusion, inter alia, of such
categories as the Board, either by statute or by decision,
customarily excludes from production and maintenance
units. We construe this statement as an acknowledgment
by the Union that the guards may not be included in a unit
found appropriate by the Board and a request that the
Board clarify the unit or units by excluding them. Accord-
ingly, we shall clarify the multiplant unit and the unit of
Brackenridge employees by excluding therefrom any indi-
viduals who are employed as guards as defined in the Act.
[Footnotes omitted.]

In Briggs Mfg. Co., 101 NLRB 74 (1952), an employee
filed a petition for decertification premised on the assertion
that nonguards were included in a unit of guards. The
Board found the employees in contention were nonguards,
but nevertheless dismissed the petition finding that since the
union took the position that it did not seek to represent em-
ployees who were not guards no question of representation
existed as to the unit of guards since by its position the un-
ion had waived its claim to represent the nonguard employ-
ees. In Atlanta Hilton & Towers, 278 NLRB 474 fn. 1
(1986), an employer was found to have violated the Act by
its withdrawal of recognition from a union. One of the em-
ployer’s arguments was that guards were included in a unit
of nonguards. There the Board stated, “We find it unneces-

by the successor employer which are acquiesced to by the Union. In
fact, Respondent cited the aforementioned cases to me during the unfair
labor practice trial in an effort to convince me to revisit the card count
by the arbitrator establishing the Union’s majority status and recogni-
tion by Hadley Memorial. I refused to recount the cards, or to revisit
the initial recognition as it pertained to Respondent’s obligation as a
successor employer. I relied on Local 1424 v. NLRB, Bryan Mfg., 362
U.S. 411 (1960), for the proposition that the original recognition by
Hadley Memorial, occurring more than 6 months prior to the filing of
the unfair labor practice charge was not in play in this proceeding.
sary to determine whether the three individuals classified as
operators are guards under the Act because even if they are, the
Respondent would not be justified in withdrawing recognition
from the Union. Guards are excluded in the unit description,
and if the Respondent believes that certain individuals should
be excluded because of their guard status, the proper procedure
for determining the issue is unit clarification, not withdrawal of
recognition.” See also Control Services, 303 NLRB 481, 482
fn. 8 (1991), enfd. 961 F.2d 1568 (3d Cir. 1992).
I do not find Russelton Medical Group, 302 NLRB 718
(1991) controlling here. There a Board majority dismissed an
8(a)(5) complaint against an alleged successor employer based
upon the predecessor’s unit including both professional and
nonprofessional employees. The union’s only demand for
recognition was based on the bargaining unit of the predeces-
sor. The Board majority discussed other cases where the Board
had enforced bargaining in historical mixed professional and
nonprofessional units, where those units had been voluntarily
recognized by the employer in question. Noting that the unit
had not been recognized by the successor employer, the Board
majority dismissed the refusal to bargain violation alleged
against it. The current case is clearly distinguishable from
Russelton Medical Group, supra, because the Union has per-
fected its demand for recognition by agreeing to the removal of
guards and professional employees from the unit. The Union’s
acquiescence in their removal from the unit removes them from
consideration as to whether the requested unit is now appropri-
ate.12

12 I would also urge the Board to revisit the result reached in Russel-
ton Medical Group, 302 NLRB 718 (1991). For, the Board has stated
that a successor employer stands in the shoes of a predecessor vis a vis
its relationship with a union. See Proxy Communications, 290 NLRB
540, 542 fn. 16 (1998), enfd. 873 F.2d 252 (2d Cir. 1989). The holding
in Russelton Medical Group, supra, that a voluntarily recognized histor-
ically mixed professional and nonprofessional units are sanctioned by
the Board in a 8(a)(5) context, but do not attach to a successor employ-
er, would seem to fly in the face of the Board’s prior pronouncement in
Proxy Communications, supra. Moreover, Sec. 9(b)(1) of the Act ap-
pears to be written to protect the interests of professional employees,
not for successor employers to use it as a shield to escape their bargain-
ing obligations with a historically recognized unit. This is particularly
so here when Respondent filed an RM petition on June 27, 2007, which
was subsequently dismissed because Respondent made no claim that
the Union had lost majority support amongst the employees, nor did it
supply any evidence of objective considerations to support such a
claim. Here, there is no dispute, that the pharmacists did not vote as to
whether they wanted to be included in a unit with nonprofessionals, as
required under Sec. 9(b)(1) for the Board to certify the unit. However,
the Board has enforced bargaining orders pertaining to mixed units of
professionals and nonprofessionals that were voluntarily created and
maintained by the parties, without the professional employees being
afforded the opportunity to vote concerning their status in the unit. See
Integrated Health-Services, 336 NLRB 575, 580 (2001); Gibbs & Cox,
280 NLRB 953, 955 fn. 12, and 968 (1986); St. Luke’s Hospital Center,
221 NLRB 1314, 1315 (1976), enfd. 551 F.2d 476 (2d Cir. 1976); and
Retail Clerks Local 324 (Vincent Drugs), 144 NLRB 1247 (1963).
Regardless of its viability, Russelton Medical Group, supra, as set forth
above, is clearly distinguishable from the present case, because unlike
there, the Union here has filed an amended request for recognition
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 830
In the present case, Hadley Memorial had voluntarily recog-
nized the Union around November 14, 2005, following a card
check by an arbitrator, in an agreed-upon unit between Hadley
Memorial and the Union. The agreed upon unit between Had-
ley Memorial contained technical and nontechnical employees,
professional employees, and guards. In this regard, there were
169 employees in the unit at the time of recognition, of whom
10 were guards, and 5 classified as pharmacists were profes-
sional employees. Around November 2006, Respondent pur-
chased the assets of Hadley Memorial, and on November 13,
2006, Respondent assumed the operation of the hospital with
all of the employees in the bargaining unit previously recog-
nized by Hadley Memorial. The employees were performing
the same functions, and Respondent admits in its answer to the
complaint that it continued to operate the hospital in basically
unchanged form as it was operated by Hadley Memorial. There
was also no hiatus in operations between Respondent and Had-
ley Memorial. It is clear in the circumstances here that from
the employees perspective they would have assumed their jobs
as “essentially unaltered” when Respondent began operating
the facility. See Sunrise Nursing Home, 325 NLRB 380, 381
(1998); and Fall River Dyeing Corp. v. NLRB, 482 U.S. 27,
43 (1987). It is also clear under the standards set forth in
Burns and Fall River that the similarities between Hadley
Memorial and Respondent’s operations manifested a “‘substan-
tial continuity’ between the enterprises.” The fact that Hadley
Memorial had voluntarily recognized the Union does not pre-
clude a successorship finding. See Southern Power Co., 353
NLRB No. 116 (2009); Van Lear Equipment, Inc., 336 NLRB
1059, 1063 (2001); Lincoln Park Zoological Society, 322
NLRB 263, 265 (1996), enfd. 116 F.3d 216 (7th Cir. 1997); and
Proxy Communications, 290 NLRB 540, 541 (1998), enfd. 873
F.2d 252 (2d Cir. 1989). The fact that the Union had not
achieved a collective-bargaining agreement with Hadley Me-
morial also does not serve as a bar for finding successorship
with Respondent. See Lockheed Engineering, Co., 271 NLRB
119 (1984). The fact that the Union only had a collective-
bargaining relationship for a year with Hadley Memorial
should also not serve to vitiate Respondent’s bargaining
obligation, for in NLRB v. Burns Security Services, 406 U.S.
272, 278–279 (1972), Burns was found to be a successor em-
ployer, although the union there had only been certified a few
months as the bargaining representative to the predecessor em-
ployer, when the predecessor lost its contract for the work to
Burns.
Moreover, Respondent cannot claim surprise here, as it is
clear that Respondent was aware there was a union in place at
the time Respondent acquired the hospital. Respondent admit-
ted the Union was the exclusive collective-bargaining repre-
sentative at Hadley Memorial to the unit specified in the com-
plaint, which included both guards and pharmacists for the
period of November 14, 2005, to around October or early No-
vember 2006, in Respondent’s answer to the amended com-
plaint. Union attorney Godoff’s undisputed testimony reveals

agreeing to Respondent’s position to eliminate guards and professionals
from the unit.
that on November 9, it was Respondent, through a phone call
from its attorney Damato to Godoff, that first contacted the
Union concerning Respondent’s bargaining obligation with the
Union. While they discussed bargaining during the call, there
was no claim that there was a discussion of the parameters of
the bargaining unit. In fact, Damato by letter dated November
17, 2006, to Godoff stated in reviewing materials related to
the Union’s request for bargaining that the bargaining unit
appeared to be inappropriate under the Act in that it in-
cluded guards with nonguards, and that it included profes-
sional employee pharmacists with nonprofessional em-
ployees, and the professionals had not been given the op-
portunity to vote as to their inclusion. Damato went on to
state that Respondent was not prepared to recognize the
Union as the bargaining representative in this inappropri-
ate unit. Thus, Respondent was aware of the Union’s
presence at the time it acquired the hospital, and it had
materials in its possession to define the bargaining unit at
Hadley Memorial. See NLRB v. Burns Security Services,
Inc., supra, where the Court cited the respondent employ-
er’s knowledge of union’s status at the predecessor, in
finding the successor employer had a bargaining obliga-
tion.
The parties stipulated that as of February 1, 2007, there were
148 employees working for Respondent in the amended bar-
gaining unit which excluded pharmacists and guards, and that
142 of those employees had previously worked for Hadley
Memorial. Respondent took over Hadley Memorial’s Hospital
on November 13, 2006. On November 9, during a phone call
initiated by Respondent’s counsel, union attorney Godoff re-
quested recognition for the Union in the bargaining unit that
had been recognized at Hadley Memorial, which was a mixed
unit totaling 169 employees, including 12 guards and 4 profes-
sional employees. Respondent’s attorney responded to the
request for recognition by letter dated November 17, 2006,
declining recognition because the predecessor’s unit constituted
a mixed unit including guards and professionals, with employ-
ees not in those categories.13 By letter to Respondent’s counsel
dated February 1, 2007, Godoff renewed the Union’s request
for recognition, stating the Union was willing to disclaim inter-
est in the guards and professionals (pharmacists). Thus, it was
about 2-1/2 months after Respondent took over the hospital’s
operation that the Union perfected its request for recognition in
the currently sought after unit. I do not view this delay as hav-
ing a significant impact on the bargaining unit employees, or as
to the bonafides of the Union’s representative status. In Fall
River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987), the Court
made a successorship finding although there was a 7-month
hiatus in operations between that of the successor and the
predecessor. Moreover, the Board has provided a union
with leeway as to the specificity of its bargaining demand
pertaining to the bargaining unit to a successor because of

13 It is of note that during this exchange, Damato never claimed to
Godoff that respiratory therapists and recreational technicians should be
included in any appropriate unit. Rather, the sole reason Respondent
gave at the time for its refusal to recognize the Union was that Hadley
Memorial unit included guards and pharmacists.
SPECIALTY HOSPITAL OF WASHINGTON-HADLEY, LLC 831
the vagaries inherent in the change of the operation as to
ultimate unit where bargaining obligation inures to the un-
ion. See, Trident Seafoods, 318 NLRB 738, 739 (1995),
enfd. in part 101 F.3d 111 (D.C. Cir. 1996); and Hydrolines,
Inc., 305 NLRB 416, 420 (1991). Accordingly, I find Re-
spondent is a successor employer with a bargaining obligation
with the Union providing that the amended unit requested by
the Union is an appropriate unit for bargaining.
2. The Union has requested bargaining in an appropriate unit
a. The Board’s Rules for Acute Care Hospitals
do not apply here
The law is clear in successorship and other cases that it is not
necessary for the requested unit to be the most appropriate unit,
or that there are no other units that are more appropriate. All
that is required is that the requested unit be an appropriate unit.
Professional Janitorial Service of Houston, Inc., 353 NLRB
No. 65 (2009); Sunrise Nursing Home, 325 NLRB 380, 381
(1998); and Hartford Hospital, 318 NLRB 183, 191 (1995),
enfd. 101 F.3d 108 (2nd Cir. 1996). See also Phoenix Resort
Corp., 308 NLRB 826, 827 (1992); and J.C. Penny Co., 328
NLRB 766.
In Trident Seafoods, Inc., 318 NLRB 738, 738 (1995),
enfd. in part. 101 F.3d 111 (D.C. Cir. 1996), the Board set
forth the following principles:

Regarding the appropriateness of historical units, the
Board’s longstanding policy is that “a mere change in
ownership should not uproot bargaining units that have en-
joyed a history of collective bargaining unless the units no
longer conform reasonably well to other standards of ap-
propriateness.” Indianapolis Mack Sales, 288 NLRB 1123
fn.5 (1988). The party challenging a historical unit bears
the burden of showing that the unit is no longer appropri-
ate. id. The evidentiary burden is a heavy one. See, e.g.,
Children’s Hospital, 312 NLRB 920, 929 (1993) (“com-
pelling circumstances’ are required to overcome the signif-
icance of bargaining history”); P.J. Dick Contracting, 290
NLRB 150, 151 (1988) (“units with extensive bargaining
history remain intact unless repugnant to Board policy”).

The Board stated in Trident Seafoods that, in reviewing the
facts pertaining to a successorship situation, the Board keeps in
mind the question of whether the employees who have been
retained will understandably view their job situation as essen-
tially unaltered. The Board stated, “By requiring the party
challenging a historical unit to show the unit is no longer ap-
propriate, the Board recognizes the importance Fall River plac-
es on employees’ perspective in a successorship analysis.” Tri-
dent Seafoods, Inc., supra at 738–739. In Trident Seafoods, the
Board found the respondent employer was a successor employ-
er with respect to three bargaining units in question relying in
principal part on the fact that the units had been historically
recognized by the predecessor employer.14

14 In Trident Seafoods, Inc., v. NLRB, 101 F.3d. 111 (D.C. Cir.
1996), the court acknowledged the heavy burden on a party attempting
Counsel for the General Counsel argues that the Board’s
health care bargaining unit rules for acute care hospitals only
apply to representation petitions involving new units of previ-
ously unrepresented employees and are not applicable in cases
involving successor employers with existing bargaining units.
In Hartford Hospital, supra, an employer was found to be a
successor employer following the merger of two hospitals re-
sulting from a stock transfer. The smaller of the hospitals spe-
cialized in mental health services, and had a longstanding col-
lective bargaining unit which included technical employees,
which at the time of the merger consisted mostly of psychiatric
technicians. There, the respondent’s argument that following
the merger a combined unit of all technical employees was
required was rejected. It was held that the centralization of
administration functions of the two hospitals and top level
management did not require a combined unit, where site super-
vision favored separate units following the merger. Unit em-
ployees participation in training with nonunit employees was
also not sufficient to overcome the historic unit. The respond-
ent’s argument that the Board’s health care rules required the
unit to comport with one of the units required by the rules for
acute care facilities was rejected by the Board, as it was stated
under the Board’s Rules there was an exception for existing
nonconforming units. It was specifically stated that “As the
legal successor of the IOL, Respondent stands in the IOL’s
shoes with regard to the application of the health care unit
rules.” It was stated “the exception for preexisting noncon-
forming units mandates the continuing viability of the IOL unit
as an appropriate unit following the merger.” id. at 193-194. It
was noted that even if the health care bargaining unit rules were
applied, the exception for psychiatric institution would preclude
the application of the acute care unit rules, and it was estab-
lished beyond any question that the IOL unit continued to exist
as an appropriate unit.15

to demonstrate that a historical unit is not appropriate. Thus, the court
approved two of the three bargaining units at the successor employer
found by the Board, but refused to enforce the Board’s order for a
historical separate bargaining unit of nonresident processors in that the
court concluded there is no difference between those employees and
resident processors, although the latter had been excluded from the unit.
The facts applicable to the resident processor bargaining unit are not
applicable to the instant case as the respiratory therapists and recreation
technicians are separately supervised, and perform different functions
from the bargaining unit employees.
15 The charging party, citing Child’s Hospital, 307 NLRB 90, 92
(1992), argues that Respondent’s nursing home and acute care units are
so integrated that the Board’s bargaining unit rules for acute care hospi-
tal’s do not apply here. In Child’s Hospital, the Board refused to apply
the bargaining unit definitions for its rules for acute care hospitals to
that particular institution. The Board stated that, under the extraordi-
nary circumstances there, such as the physical joinder of the nursing
home and the hospital, the substantial nature of both operations, and the
integrated support services provided to both parts of the operation by
Samaritan, which was located at the facility, it would not be feasible or
sensible to automatically apply the rule as to bargaining units for acute
care institutions for that facility since the rule was meant to cover more
typical freestanding acute care hospitals. The Board in finding that the
acute care unit rules did not apply due to the nature of the operation,
stated it was not necessary to determine whether the nursing home in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 832
Similarly, in Pathology Institute, 320 NLRB 1050, 1051
(1996), enfd. 116 F.3d 482 (9th Cir. 1997), cert. denied, 522
U.S. 1028 (1997), there was a transfer of represented employ-
ees from one to another entity constituting a single employer in
which the scope of the bargaining unit was reduced to only
acute care hospital locations. There, the judge found applicable
the Board’s Rule on collective-bargaining units in the health
care industry and concluded a unit confined to medical labora-
tory technologists is not one of the eight appropriate units enu-
merated in Section 103.30(a) of the Rule. The judge recog-
nized that the Rule specifically excepts “existing non-
conforming units,” but he found that after June 1992 the unit
was “substantially different” from the historic unit and thus was
not an “existing” nonconforming unit within the meaning of the
Rule. Consequently, the judge concluded that the post-June
1992 unit was not an appropriate one and could not be the sub-
ject of a bargaining order. The Board disagreed with the
judge’s conclusion noting that Section 103.30(a) sets forth the
specific units appropriate “for petitions filed pursuant to Sec-
tion 9(c)(1)(A)(i) or 9(c)(1)(B) of the . . . Act.” The Board
stated that the instant case did not involve such a petition. The
Board stated, “Assuming, however, that the Rule is applicable
in unfair labor practice cases, we find, contrary to the judge,
that the unit in issue here is an ‘existing nonconforming unit’
within the meaning of Section 103.30(a).” The Board found
that the unit, although smaller, is essentially the same unit of
medical laboratory technologists that existed prior to closing
the nonacute care facilities. The Board stated:
Moreover, nothing in Section 103.30 suggests that an em-
ployer in the health care industry may cease recognizing a un-
ion as the representative of its employees in an existing unit
merely because of a reduction in the number of unit employees
or because of a closure of the nonacute care portion of an em-
ployer’s facilities. On the contrary, permitting an employer to
withdraw recognition under such circumstances would be in-
consistent “with the design and purpose of our decision to en-
gage in rulemaking—to further the long-standing policy of
promoting industrial and labor stability.” (Fn. 3).

For these reasons, we find that even if the Rule applies to un-
fair labor practice cases, the instant case falls under the “exist-
ing non-conforming units” exception. Therefore, the appro-
priate unit issue must be decided not under the Rule, but un-
der traditional representation principles. We agree with the
judge’s implicit finding that the post-June 1992 unit is appro-

combination with the acute care operation technically met the Board’s
Rule’s definition for length of patient stay for an acute care facility,
stating if the calculation was made by the year, in that instance it would
probably skew in favor of an acute care facility finding, but if it was
made by the day, the results would probably skew in favor of a
nonacute care status. Id. at 92 fn 14. In the instant case, as in Child’s
Hospital, Amato’s testimony reveals that the nursing home and acute
care aspects of the facility were centrally managed through Amato, and
that the first floor administration unit serviced both the acute care and
long-term care units. Respondent’s operation is similar in nature to the
operation in Child’s Hospital, and for the reasons set forth in detail in
that case it would appear that the Board’s bargaining unit rules for
acute care institutions would not be applicable to Respondent since
Respondent is a combined nursing home and acute care facility.
priate under such principles. Thus, as the judge found, the unit
that remained after the closure of Respondent PI “contravenes
no statutory policy and works no injustice to Respondents.”
Nor was it a unit “which totally lacked viability. It was what
was left of a historic unit. It was employer-wide in scope,
consisting of all medical laboratory technologists who re-
mained employed by Respondents.” In sum, the change in the
size of the unit resulting from the Respondents’ reduction of
its laboratory operations did not “destroy the continued ap-
propriateness of [the] historic unit.” Accordingly, the Re-
spondents’ refusal to recognize the Union as the collective-
bargaining representative of its medical laboratory technolo-
gists, and their failure to apply to unit employees the collec-
tive-bargaining agreement between Respondent PI and the
Union, violated Section 8(a)(5) and (1) of the Act (fn. 4).

See also St. Mary’s Duluth Clinic, 332 NLRB 1419, 1420–
1421 (2000); Crittenton Hospital, 328 NLRB 879 (1999); and
Kaiser Foundation Hospitals, 312 NLRB 933, 934–935 (1993)
as other instances where the Board’s health care bargaining unit
rules for acute care hospitals were not applied to preexisting
nonconforming units.
I find that Respondent’s operations, a combination of
acute care facility and long-term care center remove it from
the Board’s Rules concerning specified units for acute care
hospitals. See Child’s Hospital, 307 NLRB 90, 92 (1992). I
also find that even if the Board’s regulations for acute care
hospitals were found to apply to Respondent’s facility, they do
not apply here as they were not by their terms meant to apply to
“existing non-conforming units.” See St. Mary’s Duluth Clinic,
332 NLRB 1419, 1420–1421 (2000); Crittenton Hospital, 328
NLRB 879, 880–881 (1999); Pathology Institute, 320 NLRB
1050, 1051 (1996), enfd. 116 F.3d 482 (9th Cir. 1997), cert.
denied 522 U.S. 1028 (1997); Hartford Hospital, 318 NLRB
183 (1995), enfd. 101 F.3d 108 (2d Cir. 1996); and Kaiser
Foundation Hospitals, 312 NLRB 933, 934–935 (1993).
b. The requested unit is appropriate without the inclusion
of respiratory therapists
In New Orleans Public Services, 215 NLRB 834, 836
(1974), in finding a unit of all of an employer’s technical em-
ployees was not the appropriate unit there, the Board stated:

It is the Board’s policy to join in a single unit all technical
employees similarly employed and to find a unit of technical
employees inappropriate where it does not include all of the
employees in that category. However, if the technical em-
ployees in the proposed unit perform functions which are suf-
ficiently distinct from those of other employees, this will justi-
fy their inclusion in a separate unit to the exclusion of other
employees who may be technical employees.

. . . .

The Board has defined technical employees as “employees
who do not meet the strict requirements of the term ‘profes-
sional employee’ as defined in the Act but whose work is of a
technical nature involving the use of independent judgment
and requiring the exercise of specialized training usually ac-
SPECIALTY HOSPITAL OF WASHINGTON-HADLEY, LLC 833
quired in colleges or technical schools or through special
courses.” (Footnotes omitted.)

In Alta Vista Regional Hospital, 352 NLRB 809 (2008), the
Board issued a Section 8(a)(5) refusal to bargain order on
summary judgment for a bargaining unit at an acute care hospi-
tal where respiratory technicians were defined as professional
employees within the bargaining unit, although the unit in ques-
tion there included both professional, technical employees, and
other non professional employees. Similarly, in Kentucky River
Medical Center, 333 NLRB No. 29, (2001), enfd. 33 Fed.
Appx. 735 (6th Cir. 2002) (not reported in Board volume),
pertaining to an acute care hospital, the Board approved a Sec-
tion 8(a)(5) finding premised on a motion for summary judg-
ment in a unit which included certified respiratory therapists as
technical employees, but excluded registered respiratory thera-
pists. It was noted there that although the Respondent was
presently contesting the unit, it had stipulated to the unit in the
underlying representation proceedings. In Lakeside Community
Hospital, Inc., 307 NLRB No. 189 (1992), enfd. 8 F.3d 71
(D.C. Cir. 1993), respiratory therapists were included in a bar-
gaining unit defined as professional employees. In Presbyteri-
an/St. Luke’s Medical Center, 289 NLRB 249, 250 (1988), in
affirming the Regional Director’s finding that respiratory thera-
pists should be included in a bargaining unit with registered
nurses, and other professional employees the Board stated:

The registered nurses are the largest group of professional
employees and they work 24 hours a day, 7 days a week.
The record shows that a number of other professionals,
e.g., pharmacists, dieticians, and respiratory therapists, al-
so work the same schedule. All the Employer’s profes-
sional employees have specialized skills, training, and ed-
ucation which require post-secondary education. Their
common educational background (in certain courses of
study) provides for some overlap in qualifications, skills,
and duties with the other professionals.

On the other hand, Respondent cites several cases where
respiratory therapists were found to be technical employees.
In St Anthony Hospital Systems, Inc., 884 F. 2d 518, 523
(10th Cir 1989), the court stated the Regional Director con-
cluded the evidence did not support a finding that the respirato-
ry therapist positions satisfied the strict requirements of a “pro-
fessional” under Section 152(12). The court went on to state
without discussing the specifics of the positions involved that,
“The Hospital has not persuaded us, however, that the Regional
Director’s conclusion is unsupported by substantial evidence in
the record.” The court went on to state if there were recent
changes in those positions it could properly address in a unit
clarification petition. This latter statement signifies that the
professional status of these employees may shift based on their
actual job functions and requirements at a particular employer.
There are other cases cited by Respondent where respiratory
therapists were found to be technical employees such as: Merit-
er Hospital Inc., 306 NLRB 598 (1992); Samaritan Health
Services, Inc., 238 NLRB 629; Children’s Hospital of Pitts-
burgh, 222 NLRB 588, 591 (1976); Jewish Hospital of Cin-
cinnati, 223 NLRB 614 (1976); and Barner Memorial Hospi-
tal Center, 217 NLRB 775, 779 (1975).
The testimony of Waddell Swilling, the former clinical man-
ager for respiratory therapists (RTs) at Hadley Memorial re-
veals that Swilling oversaw the dispensing of doctors’ orders
for respiratory therapy, and he organized the RTs staff to per-
form the required work, including: the delivery of oxygen ther-
apy, medication therapy, monitoring flow meters and drawing
blood for the arterial blood gas tests, assessing the patients and
making recommendations to the physicians as to patient care
plans. Around 28 to 32 RTs reported to Swilling, who reported
to the director of nursing. Swilling testified that no RTs trans-
ferred in from other departments, or vice versa. Of the 28 to 32
RTs in 2007, about 6 were part time working between 16 to 32
hours a week.
Swilling’s educational background is a 2-year degree from
the University of the District of Columbia. It is an associate
degree for respiratory therapy which qualified Swilling for a
respiratory license, upon the passing of a licensing exam.
Swilling explained there was a requirement of a total of 120
college course hours to receive the associate’s degree; 60 of
which pertain to respiratory therapy. Swilling testified that,
currently, under D.C. licensing requirements, the RT has to take
three credits in ethics. Swilling testified that, in 2007, there
was only a one credit hour requirement for ethics. Upon com-
pletion of the 2-year course, and passing the licensing exam, an
individual is certified as a respiratory therapist. The require-
ments to be hired as an RT at Hadley Memorial were the com-
pletion of an approved respiratory program, a license as a res-
piratory therapist, possession of a CPR card from a sanctioned
American Heart Association CPR program, and 6 months to a
year prior experience. When Swilling oversaw RTs at Hadley
Memorial, there were continuing education requirements. The
license renewal requirements include 16 course hours dealing
primarily with respiratory therapy or related care every 2 years.
RTs receive training lifting patients, along with CNAs. RTs
receive CPR training with RTs, but sometimes with other em-
ployees such as CNAs.
Swilling testified there are certified RTs and registered RTs
employed at Respondent. A certified RT is trained in the basic
elements of the discipline of respiratory care. A registered RT
is trained in more advanced concepts and has a higher educa-
tion level. A certified RT should be able to set the machine up
safely and implement the physician’s orders. Swilling initially
testified a certified RT would not be expected to assess the
patient and make a recommendation to the physician. A regis-
tered RT would engage in assessments and recommendations to
physicians.16 There are separate tests for certified and regis-
tered RTs. The test for a registered RT employs more ad-
vanced concepts. An RT needs either clinical exposure or addi-
tional training to take the registered RT exam. Swilling was
certified and registered. He testified he took several seminars
in order to qualify for the registered exam, the different re-
quired topics included, airway management, innovation, and
EKG. Swilling testified he thought he took at least four 2-day
seminars before he qualified for the registered exam. In 2007,

16 However, Swilling later testified that both registered and certified
RTs assess patients.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 834
about one-third to one-half of Respondent’s RTs were regis-
tered. Swilling testified there were certified RTs with many
years of experience who could perform like registered RTs.
Registered RTs generally make higher wages than certified
RTs, however, that can be overcome based on length of service.
The RTs are part of an IDT or interdisciplinary team which at
Hadley Memorial met at least three times a week with the phy-
sician. During the meeting, they would go through all of the
disciplines and ask for updates on the care plan the doctor has
implemented for a patient. The doctor takes control of changes
to the plan.
Respondent’s job description of RTs I and II, state they
should be a member of AARC and the local chapter of AARC
which is the American Association of Respiratory Care. The
District of Columbia has issued “Municipal Regulations for
Respiratory Therapy.” The regulations provide that, in addition
to specified educational requirements, an applicant for a license
shall receive a passing score on the National Board Examina-
tion developed and administered by the National Board for
Respiratory Care. Renewal of the license requires the demon-
stration of specified continuing education requirements. The
Commission on Accreditation of Allied Health Education Pro-
grams has issued a document entitled, “Standards and Guide-
lines for the Profession of Respiratory Care.” It states, “These
accreditation standards are the minimum standards of quality
used in accrediting programs that prepare individuals to enter
the Respiratory Care profession.” The preamble of the docu-
ment states, “Respiratory therapists are members of a team of
health care professionals working in a wide variety of clinical
settings to evaluate, treat, and manage patients of all ages with
respiratory illnesses and other cardiopulmonary disorders. As
members of this team, respiratory therapists should exemplify
the standards and ethics expected of all health care profession-
als.”
The patients at Hadley Memorial were a mix of an older
nursing home population and LTAC patients. The majority in
LTAC are very ill, including patients with lung cancer, AIDS,
chronic diseases like emphysema, and chronic bronchitis. The
RTs perform diagnostic work and therapeutic work with the
patients. Concerning diagnostics, RTs obtain sputum and
breath samples and analyze them in order to determine levels of
oxygen, carbon dioxide, and other gases in the blood. RTs then
interpret the data received with respect to the specimens, and
present recommendations with respect to the data to the physi-
cians who act upon the recommendations most of the time.
RTs also spend time measuring the capacity of patient’s lungs
to function. The RTs perform limited stress tests on patients to
test the capacity of their cardiopulmonary systems.
Swilling testified procedures RTs perform on patients in-
clude: pulse oximetry, where they check the oxygen saturation
in the blood; arterial blood gas studies, to let the doctor know
whether the lung function is working, and whether the level of
oxygen given to the patient is sufficient; and tracheal oxygenat-
ing. As to the latter, a patient may become obstructed, and they
may need assistance to clear the airway, which is called trache-
al suctioning. There are alternate procedures, such as the RTs
going directly through the nose or through the mouth when a
patient’s airway is obstructed. RTs perform pulmonary func-
tion studies testing a patient’s lung output, and they compare
the results to preset norms based on the age, height, and the
weight of the patient. They record the results of the studies for
the doctor’s review. RTs perform mechanical ventilation,
which is when a patient has respiratory failure the doctor will
order the patient’s breathing to be supported or controlled and
the therapist, based on the order, will make sure that the patient
is maintained. RTs perform continuous oxygen therapy where
a patient is given oxygen for support. RTs administer drugs
such as nebulization treatments ordered by a doctor to open up
someone’s airway.
RTs follow the doctor’s orders in implementing treatments
unless the patient reacts to the treatment or there is something
the doctor did not notice such as a broken rib or an allergic
reaction. RTs have the right to look at the procedures laid out
for the treatment and decide which of those procedures are
necessary for a particular patient. If an RT realizes a procedure
that they are asked to perform cannot be performed, they can
make a recommendation to the doctor for a different procedure
to accomplish the same goal. Doctors will follow RTs recom-
mendations from time-to-time such as using a new piece of
equipment for treatment. RTs interact with the patients to as-
sess the effects of the treatments.
RTs operate and maintain a range of equipment whose pur-
pose is to administer oxygen or to assist with breathing. RTs
use mechanical ventilators for treating patients who cannot
breathe adequately. RTs administer medication in an aerosol
form to alleviate breathing problems. RTs make judgments as
to how to administer treatments. The equipment RTs use in-
clude: a spirometer to measure the patient’s breathing; nasal
cannulas to deliver oxygen; the venturi mask for oxygen deliv-
ery; an ultrasonic nebulizer to make a fine mist to help in
breathing; a percussor to vibrate the chest wall to help clear it; a
pulse oximeter to monitor a patient’s oxygen absorption rate;
ventilators; oxygen masks; an aerosol T is used for moisture
when there is an artificial airway in the trachea.
Concerning the equipment RTs operate, the RTs hook it up
to the patient and monitor it. In the absence of an RT, an LPN
or RN may give the medication for a nebulization treatment to
the patient and they may activate the compressor. Primarily
RTs manage the mechanical ventilator. In the absence of an
RT, if the machine is malfunctioning, or the nurse feels the
patient is not safe, then they are instructed to take the patient
off the machine and operate a resuscitator and bag until an RT
or physician arrives to troubleshoot or replace the machine.
The spirometer is primarily used by the RTs. Everyone who is
caring for a patient uses the nasal canola. The venturi mask is
also a universal piece of equipment used by the nurse and the
RTs based on a patient’s needs. The ultrasonic nebulizer is
more sophisticated. It is used primarily by the RTs, but if a
nurse sees the machine is not working correctly, they can turn it
off and call for assistance. The physician orders the proce-
dures, but the RTs perform arterial blood gas studies, checking
oxygen levels in blood and checking oxygen levels in the blood
gas studies. The RNs who work in the intensive care area have
knowledge of performing these procedures. However, it is
primarily the RTs that perform them.
SPECIALTY HOSPITAL OF WASHINGTON-HADLEY, LLC 835
RTs at Hadley Memorial worked throughout the hospital in
the patient care areas. During the course of their job, RTs in-
teract with LPNs. They share information about the patients as
to whether the care plan is working, and they answer the nurs-
es’ questions about the patient’s breathing. The LPN’s also
provide the RTs information about the patients. The RTs inter-
act with the LPNs at least two to three times a shift. RTs also
interact with CNAs in the care of patients about two to three
times a shift. The RTs interact with the unit secretaries to re-
ceive information about physicians’ orders for patients. The
parties stipulated the RTs interact with a range of service and
maintenance and technical employees in the bargaining unit for
which the Union sought recognition.
RTs keep patient progress notes in that when they perform a
procedure they document the results. The LPNs also use pro-
gress notes to document the results of anything that is done to a
patient. The RTs and LPNs use the MAR , the medical admin-
istration record, listing the schedule for the medications the
doctors prescribe a patient. The MAR is a chart with squares
with the times assigned to it. Nursing and RTs check off the
medications they administer to the patient on the MAR. Swill-
ing testified RTs fill out critical value reports if test results are
outside of the normal limits in that the RTs has to make sure the
information is communicated up the chain of command and the
doctor is notified. LPNs also use critical value reports for such
things as Glucose monitoring. An RT, RN, and doctors do
program notes, and MARS.
Swilling testified RTs use their own judgment in making de-
cisions on how to take care of a patient. The RTs have a policy
and procedure manual containing guidelines for the RTs includ-
ing 20 procedure related items. The RT can elect to use all 20
procedures for a patient, or they can choose a short list, if that
solves the patient’s needs. Swilling testified there is independ-
ent judgment involved in choosing which procedures to follow.
The doctors order a treatment such as a nebulization treatment,
and it is up to the RT to decide which procedures to follow to
institute the treatment from the list of procedures provided by
the hospital in its policy and procedure manual. The RT can
review the list and decide which of the items is necessary for a
particular patient based on the patient’s needs. The RT com-
municates with the patient and checks the different parameters
to determine whether to continue or stop a treatment, or the RT
calls a physician, or notifies the nurse to call a physician. The
RT can stop a treatment prior to calling a doctor if they notice
the procedure is not working or if it is causing the patient stress.
If there is an emergency with a patient, the nurse who is an RN
or an LPN and the RT join together in their assessments based
on the guidelines for nursing and the guidelines for RTs. They
have steps that they are supposed to follow, and the RTs usual-
ly maintain the airway to make sure the patient is breathing,
take their pulse, and monitor their heart rate.
Respondent’s records reveal that it employed 35 LPNs
and 35 RTs as of April 30, 2009.17 At that time, the LPNs
pay ranged from $19.50 to 31.82 per hour. The RTs pay
ranged from $26.28 to $32 an hour. There were 13 LPNs

17 Jt. Exh. 2.
being paid $25 an hour, and 14 RTs being paid $30 an hour.
The mean average hourly rate for the LPNs was $24.64 and
for the RTs it was $29.31. The LPNs were the highest paid
employees in the requested bargaining unit. There was one
painter earning $22.60 an hour.18
The charging party argues the RTs are professional employ-
ees under Section 2(12) of the Act, while Respondent contends
that they are technical employees. From, my perspective I need
not decide the status of these employees as to whether they are
technical or professional to determine that their exclusion from
the unit here does not vitiate Respondent’s bargaining obliga-
tion with the Union. I have found that Respondent is a succes-
sor employer to Hadley Memorial. The bargaining proposals
between the Union and Hadley Memorial reveal that Hadley
Memorial specifically sought the exclusion of RTs from the
unit it agreed to with the Union. Moreover, I find that the RTs
have a separate and distinct community of interest from the
bargaining unit employees. The RTs are separately supervised
from the unit employees, and they are higher paid. The have
unique training and skills from the remainder of the bargaining
unit. Their accreditation labels them as professional employ-
ees. They are required to receive training in ethics, and to take
continuing education courses specific to their specialty in order
to retain their licenses. They operate sophisticated equipment
and are required to make patient assessments based on their
testing, and to make recommendations to doctors concerning
patient care. There is no history of interchange between the
RTs and the bargaining unit positions. While they have daily
contact with some of the bargaining unit employees, they also
have frequent contact with RNs and doctors, but there is no
contention that the latter should be in the unit. I find the nature
of the contact of the RTs with unit classifications is not suffi-
cient to override both the historical nature of the unit, as well as
the unique status and separate community of interest of the
highly skilled and specialized RTs whether they are labeled
technical or professional employees. See Hartford Hospital,
318 NLRB 183 (1995), enfd. 101 F.3d 108 (2d Cir. 1996); New
Orleans Public Services, 215 NLRB 834, 836 (1974);19
and Ochsner Clinic, 192 NLRB 1059 (1971) (radiological
techs were found to constitute a separate unit apart from
other technical employees); and Pontiac Osteopathic Hos-
pital, 227 NLRB 1706 (1977) (LPNs were excluded from a
unit of all technical employees based on separate bargain-
ing history). While Respondent has cited several cases
where RTS were found to be technical employees, there
have been other instances where the Board has approved
bargaining units labeling them as professional employees,

18 The above calculations were derived from figures obtained from
R. Exh. 13. I used the April 2009 wage rates because the wage rate
figures provided for February 2007, were incomplete. In this regard, in
Jt. Exh. 3, covering February 2007, there were wage rates for 21 RTs,
while the record revealed Respondent employed 27 RTs at that time.
Similarly, there were only pay rates for 6 LPNs provided for February
2007, while the record revealed Respondent employed 22 LPNs at that
time.
19 The applicable results of these two cases were described in detail
above in a prior section of this decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 836
or at a minimum excluding them from units of technical
employees. See Alta Vista Regional Hospital, 352 NLRB 809
(2008); Kentucky River Medical Center, 333 NLRB No. 29
(2001) (not reported in Board volume); Lakeside Community
Hospital, Inc., 307 NLRB No. 189 (1992); and Presbyterian/St.
Luke’s Medical Center, 289 NLRB 249, 250 (1988). Accord-
ingly, I find the unit requested on February 1, 2007, is an ap-
propriate unit, although it excludes respiratory therapists.
c. The requested unit is appropriate without the inclusion
of recreation technicians
Debbie Scott is employed by Respondent as a therapeutic
and recreation coordinator. Scott has worked at the hospital in
that position for over 16 years. Scott’s job consists of planning
and coordinating recreational leisure activities for the hospital.
Scott plans the activities for the second and third floor of the
facility on a daily basis. The recreation unit is located on the
second floor of the hospital in one office area. Scott testified
she is the only supervisor who supervises the employees in the
recreation department. Caliathia Green is the nursing home
administrator and she is Scott’s supervisor. Green is not the
administrator for the whole hospital, just the third floor.
Scott testified that, at the time of the hearing, there were four
recreation technicians, a recreation assistant, and one cosmetol-
ogist reporting to her, and that Scott had the same number of
recreation technicians reporting to her in the beginning of
2007.20 Scott testified the cosmetologist came within her de-
partment 2 years prior to the hearing, which was held in May
2009. She testified the cosmetologist was not in her department
at the time Respondent took over the operation. Scott testified
that, at that time, the department consisted of the four recrea-
tion technicians and a recreation assistant. Scott testified the
function of a recreation technician has not changed since 2007.
She testified they carryout the care plans for a patient and make
goals. Scott testified that on a typical day the patients come
from their room to a day room where they participate in a group
activity. The recreation technician also sees patients or resi-
dents on a one-to-one basis.
Scott testified three CNAs transferred into the recreation de-
partment in the past 16 years. Libby Rodriguez is a CNA who
transferred in around 7 years ago. Anita Cunningham, a prior
CNA, transferred in around 3 years ago to become a recreation
technician. Scott testified that Cheryl Cunningham, a former
CNA, went back to school for cosmetology and then she ap-
plied for the cosmetology position in September 2008. Cun-
ningham went to school while she was a CNA. Scott testified
no one has transferred out of the department to other positions.
Scott evaluates employees and directs the employees in her
department. Scott testified there are recreation technicians Is
and IIs in Scott’s department. Scott testified the recreation
technician II is trained on how to document charts. Scott testi-
fied the job requirements for a recreation technician used to be

20 Respondent is not contending that the cosmetologist should be in-
cluded in the bargaining unit. (Tr. 43.) Respondent is apparently not
contending that the recreation assistant should be in the unit. Scott
testified the recreation assistant has the authority to discipline employ-
ees.
a high school diploma and some college. It changed around
2007 to require a high school diploma and 6 months of experi-
ence working in a long-term health care facility. Scott was not
sure of the actual timing of the change in the requirements. The
recreation therapists are required by Respondent to have a CPR
certification, the training and testing for which is provided by
Respondent. Scott testified that others who have had CPR
training at the hospital are technicians, nurses, security, dietary,
and environmental service.
Scott testified a patient is cared for by interdisciplinary team
members, including the doctor, a nurse, a social worker, case
manager, RTs, dietitian, and recreation technician. Scott testi-
fied there is a weekly meeting where the team members discuss
the patient’s care plan. The recreation technicians have been
attending the care plan meetings since 2007. The recreation
technicians work on both the second and third floor. They
interact with LPNs and CNAs on a daily basis to receive infor-
mation about a patient or resident. They can also receive such
information from an RN. Scott testified recreation technicians
also interact with unit secretaries in that they will ask unit sec-
retaries to order lunch for the long-term care residents when the
recreation technicians take them on outings. Unit secretaries
also provide recreation technicians with information about pa-
tients. Scott testified there is interaction between recreation
technicians and food service employees when there are special
events or when the food service employees bring the food up to
the floor. Scott testified recreation technicians also interact
with other employees when they use the cafeteria. If there is a
special family meeting to discuss a patient’s care that Scott
cannot attend, she will designate a recreation technician to at-
tend. A nurse would usually attend, a doctor if requested, the
dietician, and a social worker would be there as well as a res-
piratory therapist. The nurse could be an LPN or an RN.
Scott testified the activities department has one computer
which is used by Scott and the four recreation technicians and it
is hooked up to the hospital network computers. The recreation
technicians use an attendance sheet where they track the resi-
dents. The recreation technicians record when they go to a
room to visit a resident. They have a wallboard where they
write down when they saw the patient and the patient’s pro-
gress so Scott will be able to tie the progress into the resident’s
medical chart. The resident’s medical chart is used by all inter-
disciplinary team members, including LPNs and CNAs.
Scott testified the department employees usually work 9 a.m.
to 5 p.m. There is a part-time recreation technician who works
from 4:30 to 8:30 p.m. Scott testified that the four recreation
technicians include the part-time employee. The recreation
technicians work every other weekend as set forth in their job
description. No one is in charge of them over the weekend. If
something happens on the weekend, the technicisan will call
Scott. Scott testified the recreation department uses TVs,
VCRs, Wii games, table games, arts and crafts. Scott testified
their equipment is not medically oriented.21

21 To the extent it should become an issue in this proceeding, I do
not find that it has been established on this record that Susan Harris is a
statutory supervisor. Harris is the only recreation technician II. As
such, she substitutes for Scott at management meetings when Scott is
SPECIALTY HOSPITAL OF WASHINGTON-HADLEY, LLC 837
Respondent argues that the requested unit is not an appropri-
ate unit, in part, because it does not include the recreation tech-
nicians. Respondent argues that since the requested unit in-
cludes some nontechnical employees, that it is not an appropri-
ate unit unless the recreation technicians are included in the
unit. It is true that the recreation technicians have some contact
with the unit employees, and there has been an exchange with
unit employees in that in the past 16 years two CNAs have
transferred into the recreation department as recreation techni-
cians. On the other hand, no employees from the recreation
department have transferred to bargaining unit positions, and
one of the CNAs who transferred into the recreation department
assumed the position of cosmetologist, a position Respondent
does not contend should be included in the unit. The evidence
also reveals that the recreation technicians have their own of-
fice, and, along with the cosmetologist, are separately super-
vised.
The bargaining history reveals that the predecessor employ-
er, in its proposal to the Union, sought to exclude registered
nurses, physical therapists, occupational therapists, speech ther-
apists, registered and certified respiratory therapists, recreation
therapists, and recreation/activity technicians from the bargain-
ing unit. In these circumstances, I do not find the exclusion of
four employees from a bargaining unit of 148 employees at the
time the Union made its February 1, 2007 request for bargain-
ing renders that unit as inappropriate. The law is clear in terms
of a successor’s duty to bargain that the unit merely needs to be
an appropriate unit, not the most appropriate unit. Professional
Janitorial Service of Houston, Inc., 353 NLRB No. 65 (2009);
Phoenix Resort Corp., 308 NLRB 826, 827 (1992); Hartford
Hospital, 318 NLRB 183, 191 (1955) enfd. 101 F.3d 108 (2d
Cir. 1996); J.C. Penny Co., 328 NLRB 766. Accordingly, I
find the amended unit is an appropriate unit with the exclusion
of the recreation technicians.
d. Conclusions
In sum, the Union was voluntarily recognized in Novem-
ber 2005 by Respondent’s predecessor, Hadley Memorial,
following a card check by an arbitrator establishing the Un-
ion’s majority status. Thereafter, Hadley Memorial partici-
pated in two bargaining sessions with the Union, the parties
exchanged proposals, and they reached agreement on certain
terms of a contract. The bargaining sessions took place in
the hospital cafeteria and were well attended by employees
as part of the Union’s bargaining committee. The Union

absent from work, at which time Harris will also give other recreation
technicians assignments if necessary, and she can approve up to 1 day
off in Scott’s absence. When Scott is away from work, Harris will call
Scott if anything unusual occurs for approval on how to handle it.
Harris cannot hire or fire employees. She cannot recommend discipline
and does not evaluate employees. The recreation technicians’ assign-
ments are worked out by Scott on a monthly basis, they are somewhat
repetitive in nature, and the employees alternate weekends when they
work without on site supervision, with only telephone access to Scott.
It has not been established that Harris is anything other than a lead
person in Scott’s absence. She does not exercise independent judgment
in exercising supervisory functions, and it has not been established on
this record that she responsibly directs employees.
also established a presence at the hospital cafeteria where it
held weekly meetings with the employees. The Union
sought additional bargaining sessions from Hadley Memori-
al, but was put off with a variety of excuses, including vaca-
tions and maternity leave by one of Hadley Memorial’s
principals. Towards the end of Hadley Memorial’s owner-
ship of the hospital, the Union was given assurances that
bargaining would continue, although Hadley Memorial was
in the midst of a sale of its stock. The Union was later told
that in fact the transaction was an asset sale, and that the
Union would be dealing with a new owner. While Hadley
Memorial provided the Union with a variety of excuses for
the delay in negotiations, it is likely that one of the reasons
for the delay, although it was not mentioned, was that Had-
ley Memorial was attempting to sell the hospital, and did
not want to encumber the new owner with a Union contract.
In November 2006, Respondent began operating the hospital
in an unchanged form from the manner it was operated by Had-
ley Memorial, and retained virtually all of Hadley Memorial’s
employees. In November 2006, Respondent’s Attorney
Damato contacted Union Attorney Godoff by phone, and in-
formed Godoff that Damato was serving as labor counsel for
Respondent. Damato, by letter to Godoff following their phone
call, stated that Respondent was refusing Godoff’s request to
bargain with the Union because the bargaining unit at Hadley
Memorial included pharmacists, who are professional employ-
ees, and guards. Godoff responded by letter dated February 1,
2007, requesting bargaining stating the Union was willing
to disclaim any interest in representing Respondent’s secu-
rity guards, and to disclaim interest in representing the
pharmacists or to afford the pharmacists a right to decide
for or against their inclusion in the unit. By letter dated
February 8, 2007, Damato continued to deny the Union’s
request for recognition.
Respondent has since advanced additional arguments as rea-
sons in support of its refusal to bargain, including the requested
unit was inappropriate because it does not include respiratory
therapists and recreational technicians. Respondent has also
filed multiple motions as well as requests for postponement
causing or seeking to delay these proceedings, and it advanced
an argument at the trial that employee turnover establishes the
Union no longer has majority support. As to the latter argu-
ment, Respondent’s records show that as of February 1, 2007,
142 of the 148 employees in the requested unit had worked for
Hadley Memorial; and as of April 30, 2009, which was close in
time to the trial, 107 of the 178 employees in the requested unit
had worked for the predecessor employer. Respondent had also
filed an RM petition which was dismissed by the Region and on
appeal by the Board, because Respondent submitted no evi-
dence that the employees were no longer supporting the Union.
Respondent’s actions reveal an intent to delay these proceed-
ings in the hope that time will strengthen its argument as to
employee turnover. I do not find Respondent’s conduct or its
argument here to be persuasive.
Respondent also argues that length of the bargaining history
between Hadley Memorial and the Union warrants the conclu-
sion that the bargaining unit does not constitute a historical unit
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 838
whose composition is binding on the successor employer. I
disagree. The Supreme Court and Board have directed me
through precedent for purposes of industrial stability to view a
successor’s bargaining obligation through the eyes of employ-
ees, so they will not feel their ability to be represented by a
union is subject to the vagaries of the ownership of an opera-
tion. Here, the employees signed authorization cards, those
cards were validated by an arbitrator, and by agreement Hadley
Memorial recognized and bargained with the Union. Employ-
ees participated in the bargaining sessions, and attended union
meetings at the hospital. The employees do not control when
they select a union vis-a-vis an employer’s desire sale of its
facility. Here, the selection was a year before the sale, and
there was no evidence that the selection was merely a last mi-
nute ruse or vehicle by the employees to protect themselves
during the sale. Rather, in the circumstances here, as viewed
by a reasonable employee, Respondent’s refusal to honor its
predecessor’s recognition of the Union could only be viewed as
subjecting their rights to union representation based on the
whims of ownership of the facility. Accordingly, I find that
Respondent has violated Section 8(a)(1) and (5) of the Act by
refusing to recognize and bargain with the Union in the unit
requested on February 1, 2007.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) and (5) of the Act by
refusing to bargain with 1199, SEIU, United Healthcare Work-
ers East, MD/DC Division in the following appropriate unit:

All bakers, cashiers, certified pharmacy techs, C.N.A.s, cooks,
dietary clerks, E.S. employees, E.S. Aides, E.S. Floor Techs,
Engineers III, food service workers, LPNs, maintenance help-
ers, maintenance mechanics, med lab techs, medical records
clerks, medical records techs, painters, pharmacy techs, phle-
botomists, P.T. care techs, rehab techs, senior medical records
techs, stock clerks, stock room coordinators, trayline check-
ers, unit secretaries, and utility aids, employed by Respondent
at its Washington, D.C. facility; but excluding all other em-
ployees, professional employees, guards, and supervisors as
defined in the National Labor Relations Act.

2. The above violations constitute unfair labor practices af-
fecting commerce within the meaning of the Act.
REMEDY
Having found that Respondent violated the Act in certain re-
spects, I shall recommend that it cease and desist from engag-
ing in such violations, take affirmative action to remedy them,
including recognizing and bargaining in good faith with 1199
SEIU, United Healthcare Workers East, MD/DC Division, and
post an appropriate notice.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended22
ORDER
That Respondent Specialty Hospital of Washington-Hadley,
LLC, its officers, agents, successors, and assigns shall be or-
dered to
1. Cease and desist from:
(a) Failing and refusing to recognize and bargain in good
faith with 1199 SEIU, United Healthcare Workers East,
MD/DC Division (the Union) as the exclusive collective-
bargaining representative of its employees in the below-
described appropriate bargaining unit:

All bakers, cashiers, certified pharmacy techs, C.N.A.s, cooks,
dietary clerks, E.S. employees, E.S. Aides, E.S. Floor Techs,
Engineers III, food service workers, LPNs, maintenance help-
ers, maintenancemechanics, med lab techs, medical records
clerks, medical records techs, painters, pharmacy techs, phle-
botomists, P.T. care techs, rehab techs, senior medical records
techs, stock clerks, stock room coordinators, trayline check-
ers, unit secretaries, and utility aids,employed by Respondent
at its Washington, D.C. facility; but excluding all other em-
ployees, professional employees, guards, and supervisors as
defined in the National Labor Relations Act.

(b) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) On request, bargain in good faith with the Union as the
exclusive representative of the employees in the above de-
scribed unit concerning terms and conditions of employment
and, if an understanding is reached, embody the understanding
in a signed agreement.
(b) Promptly notify the Union, in writing, of all changes in
terms or conditions of employment of the above-described unit
that have been implemented by Respondent since February 1,
2007.
(c) Upon request by the Union, rescind changes specified by
the Union made in terms or conditions of employment for the
above-described unit since February 1, 2007.
(d) Make the employees in the above-described unit whole
plus interest as traditionally calculated by the Board for any
loss of earnings or benefits suffered as a result of any changes
which Respondent has made in their terms and conditions of
employment subsequent to February 1, 2007, for the above-
described unit.
(a) Within 14 days after service by the Region, post at its
Washington, D.C. location copies of the attached notice marked
“Appendix.” 23 Copies of the notice, on forms provided by the

22 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
23 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-
SPECIALTY HOSPITAL OF WASHINGTON-HADLEY, LLC 839
Regional Director for Region 5, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since February 1,
2007.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

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.”

WE WILL NOT fail and refuse to recognize and bargain with
1199 SEIU, United Healthcare Workers East, MD/DC Division
(the Union) as the exclusive collective-bargaining representa-
tive of employees in the following appropriate unit:

All bakers, cashiers, certified pharmacy techs, C.N.A.s, cooks,
dietary clerks, E.S. employees, E.S. Aides, E.S. Floor Techs,
Engineers III, food service workers, LPNs, maintenance help-
ers, maintenance mechanics, med lab techs, medical records
clerks, medical records techs, painters, pharmacy techs, phle-
botomists, P.T. care techs, rehab techs, senior medical records
techs, stock clerks, stock room coordinators, trayline check-
ers, unit secretaries, and utility aids, employed by Respondent
at its Washington, D.C. facility; but excluding all other em-
ployees, professional employees, guards, and supervisors as
defined in the National Labor Relations Act.

WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of their rights
as guaranteed in Section 7 of the Act.
WE WILL recognize and, on request, bargain collectively and
in good faith with the Union as the exclusive representative of
the employees in the appropriate unit set forth above, concern-
ing terms and conditions of employment and, if an understand-
ing is reached, embody the understanding in a signed agree-
ment.
WE WILL on request by the Union, rescind changes specified
by the Union made in terms or conditions of employment of the
above-described unit since February 1, 2007, and make all af-
fected unit employees whole, together with interest, for any and
all losses they incurred by virtue of the changes in their wages,
fringe benefits, and other terms and conditions of employment
from February 1, 2007, until we negotiate in good faith with
1199 SEIU, United Healthcare Workers East, MD/DC Division
to agreement or to impasse; except that nothing in this provi-
sion requires that we withdraw or eliminate any improvement
in wages or benefits.
SPECIALTY HOSPITAL OF WASHINGTON–HADLEY,
LLC