Atlanticare Management LLC (d/b/a Putnam Ridge Nursing Home)

National Labor Relations Board - Board Decisions

Feb 11, 2020

369 N.L.R.B. 28 (N.L.R.B. 2020)

369 NLRB No. 28
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Atlanticare Management LLC d/b/a Putnam Ridge
Nursing Home and 1199 SEIU United Healthcare
Workers East. Cases 02–CA–177329, 02–CA–
193189, 02–CA–198370, 02–CA–206253, and 02–
CA–210245
February 11, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On December 12, 2018, Administrative Law Judge
Benjamin W. Green issued the attached decision. Atlan-
ticare Management LLC d/b/a Putnam Ridge Nursing
Home (the Respondent) filed exceptions and a supporting
brief. The General Counsel and 1199 SEIU United
Healthcare Workers East (the Union) each filed an an-
swering brief, cross-exceptions, and a supporting brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions1 and
briefs and has decided to affirm the judge’s rulings,2 find-
ings,3 and conclusions and to adopt the recommended Or-
der as modified and set forth in full below.4
For the reasons discussed by the judge, we affirm the
judge’s findings that the Respondent violated Section
8(a)(1) by promulgating and maintaining a rule prohibit-
ing employees from engaging in union business on its
property or during work hours; Section 8(a)(3) and (1) by
discharging Catherine Thomas for supporting the Union
and by reducing unit employees’ annual merit wage in-
creases because those employees selected the Union as

1 No party has excepted to the judge’s finding that the Respondent
violated Sec. 8(a)(5) and (1) by failing to provide to the Union in a timely
manner relevant information requested by the Union on January 6, 2016.
Further, no party has excepted to the judge’s dismissal of the allegations
that the Respondent violated Sec. 8(a)(1) by promulgating and maintain-
ing a rule against harassment and spreading false rumors and Sec. 8(a)(5)
and (1) by failing to provide the Union with requested copies of cost re-
ports that the Respondent submitted to Medicaid or any other public en-
tity or program for reimbursement.
2 Because we affirm the judge’s dismissal of the allegation that the
Respondent violated the Act by engaging in overall bad-faith bargaining,
we find it unnecessary to pass on whether the judge abused his discretion
in granting the General Counsel’s motion to amend the complaint to clar-
ify that allegation.
3 The parties have excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
their representative;5 and Section 8(a)(5) and (1) by failing
and refusing to provide the Union with certain relevant in-
formation that it requested on January 6 and April 19,
2016, and by refusing to meet with the Union at reasona-
ble times to bargain. Additionally, for the reasons dis-
cussed by the judge, we affirm the judge’s dismissal of the
allegation that the Respondent violated Section 8(a)(5)
and (1) by engaging in overall bad-faith bargaining. Fi-
nally, for the reasons discussed by the judge and the addi-
tional reasons discussed below, we affirm the judge’s
finding that the Respondent violated Section 8(a)(5) and
(1) by unilaterally reducing unit employees’ annual merit
wage increases.
In determining whether the Respondent violated Sec-
tion 8(a)(5) by unilaterally reducing the unit employees’
annual merit wage increases, the threshold issue is
whether the Respondent’s merit wage program was an es-
tablished term and condition of employment. The Board
has long held that “a merit wage program will be found to
be a term and condition of employment when it is an ‘es-
tablished practice . . . regularly expected by the employ-
ees.’” Rural/Metro Medical Services, 327 NLRB 49, 51
(1998) (quoting Daily News of Los Angeles, 315 NLRB
1236, 1236 (1994), enfd. 73 F.3d 406 (D.C. Cir. 1996),
cert. denied 519 U.S. 1090 (1997)); see also Windsor Red-
ding Care Center, LLC, 366 NLRB No. 127, slip op. at 4
(2018), enfd. in relevant part 944 F.3d 294 (D.C. Cir.
2019). “Factors relevant to this determination include ‘the
number of years that the program has been in place, the
regularity with which raises are granted, and whether the
employer used fixed criteria to determine whether an em-
ployee will receive a raise, and the amount thereof.’”
United Rentals, 349 NLRB 853, 854 (2007) (quoting Ru-
ral/Metro Medical, supra at 51).6
At certain points in his decision, the judge inadvertently stated that
the election and the Union’s subsequent certification occurred in Decem-
ber 2016 and that the Respondent reduced unit employees’ merit wage
increases beginning in January 2017. As the judge correctly stated at
many other points in his decision, the election and the Union’s certifica-
tion occurred on December 4 and 14, 2015, respectively, and the Re-
spondent reduced unit employees’ merit wage increases beginning in
January 2016. We have corrected those errors, which have not affected
our disposition of this case.
4 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language. We shall substitute a new notice to
conform to the Order as modified.
5 In affirming the judge’s finding of this violation, we do not rely on
his speculation that the Respondent’s discriminatory reduction of the em-
ployees’ merit wage increases may have been a bargaining tactic.
6 Those factors are relevant to a determination of whether an em-
ployer’s merit wage program was an established term and condition of
employment, but they are not necessarily controlling in determining
whether an employer has developed a past practice in other contexts.
See, e.g., Mike-Sell’s Potato Chip Co., 368 NLRB No. 145, slip op at 3–
4 (2019) (finding, in the context of determining whether an employer had
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Here, since acquiring ownership of the Putnam Ridge
Nursing Home facility (Putnam Ridge) around 2010, the
Respondent has provided merit wage increases to unit em-
ployees each year on or near their employment anniver-
saries, the amounts of which are based on the employees’
annual performance appraisals. The Respondent annually
conducts a performance appraisal for each unit employee
around his or her employment anniversary date and as-
signs the employee an overall rating of “Outstanding,”
“Very Good,” “Good,” “Improvement Needed,” or “Un-
satisfactory.” The record evidence supports the judge’s
finding that prior to the Union’s certification on December
14, 2015, the Respondent provided employees who re-
ceived overall ratings of Outstanding, Very Good, and
Good with merit wage increases of 2.5 percent, 2.25 per-
cent, and 2 percent, respectively (the precertification for-
mula). The record also supports the judge’s finding that
since January 2016, the Respondent has reduced the merit
wage increases for employees who receive overall ratings
of Outstanding, Very Good, and Good to 1.75 percent, 1.5
percent, and 1.25 percent, respectively.
The Respondent argues that it did not have an estab-
lished practice of annually providing unit employees with
merit wage increases based on the precertification formula
because the employees did not receive merit wage in-
creases for 3 years prior to 2010. However, as stated
above, the Respondent did not acquire ownership of Put-
nam Ridge until 2010. The failure by the prior owner of
Putnam Ridge to provide merit wage increases to employ-
ees would not have affected whether unit employees reg-
ularly expected the Respondent to provide such increases.
What is important is that from the time that the Respond-
ent acquired ownership of Putnam Ridge until the unit em-
ployees selected the Union as their exclusive collective-
bargaining representative, the Respondent annually pro-
vided unit employees with merit wage increases based on
the precertification formula. Thus, we agree with the
judge that the Respondent’s argument lacks merit.
The Respondent further argues that it did not have an
established practice of annually providing unit employees
with merit wage increases based on the precertification
formula because in 2013 and 2015 it provided general
wage adjustments instead of merit wage increases. For the
reasons that follow, we agree with the judge that this ar-
gument lacks merit as well.
In 2013, the Respondent provided many, but not all, unit
employees with general wage adjustments instead of merit
wage increases.7 However, employees who did not

a past practice of unilaterally selling sales routes, that an employer’s uni-
lateral actions do not necessarily have to occur at “set intervals” or be
taken pursuant to “consistent criteria” to qualify as a past practice, and
that the respondent’s unilateral sales of its routes established a past
receive general wage adjustments received merit wage in-
creases based on the precertification formula as usual.
Moreover, in a January 15, 2013 memorandum announc-
ing and explaining the reason for the general wage adjust-
ments, the Respondent acknowledged that it had “insti-
tuted a policy to review all of [its] employees on an annual
basis and provide merit increases,” adding that it had “re-
alized that these increases were not enough, and failed to
address the decisions by prior ownership not to provide
increases for three (3) years.” Thus, although the Re-
spondent did not provide merit wage increases to some
unit employees in 2013, nothing in the January 15 memo
suggested that those employees would not receive merit
wage increases in the future. Instead, the memo affirmed
that the Respondent had adopted an annual merit wage in-
crease program but explained the particular circumstances
that prompted it to give some employees general wage ad-
justments instead of merit wage increases that year. See
Bryant & Stratton Business Institute v. NLRB, 140 F.3d
169, 180–182 (2d Cir. 1998) (finding that the employer’s
merit wage program was an established term and condi-
tion of employment even though the employer had discre-
tion to forgo granting merit wage increases based on eco-
nomic conditions and did so on one occasion because
“[t]he exception does not eradicate the norm”); Dyna-
tron/Bondo Corp., 323 NLRB 1263, 1264 (1997) (“The
fact that employees on occasion received wage increases
that were not tied to their probationary or anniversary
dates is insufficient to convince us that the [employer] did
not follow a settled practice respecting probationary and
anniversary increases.”), enfd. in relevant part 176 F.3d
1310 (11th Cir. 1999).
In 2015, the Respondent provided unit CNAs with gen-
eral wage adjustments to make their wage rates more com-
petitive with CNAs at other nursing homes in the area.
However, it also provided many of those CNAs, and unit
employees in all other classifications, with merit wage in-
creases based on the precertification formula. Once again,
the Respondent did not indicate in any way that the em-
ployees who received general wage adjustments would
not receive merit wage increases in the future.
In sum, at the time of the Union’s certification, the Re-
spondent’s merit wage program was an established term
and condition of employment because it had been in place
since the Respondent acquired ownership of Putnam
Ridge, and the Respondent annually provided unit em-
ployees with merit wage increases around their employ-
ment anniversaries and used their performance appraisals
practice based on “the overall frequency and number” of such sales—51
in all—“over a span of 17 years”).
7 The general wage adjustments were larger than the merit wage in-
creases that the employees would have otherwise received.
ATLANTICARE MGMT., LLC D/B/A PUTNAM RIDGE NURSING HOME 3
to determine whether they received merit wage increases
and the amounts thereof.8 Therefore, the Respondent was
not privileged to unilaterally change its merit wage pro-
gram once the unit employees selected the Union as their
representative. See United Rentals, supra, 349 NLRB at
854 (“[W]here a past practice of adjusting wages consti-
tutes a term or condition of employment, the unilateral dis-
continuance of that practice violates Sec[.] 8(a)(5).”). As
discussed above, since January 2016, the Respondent has
provided unit employees who have received overall rat-
ings of Outstanding, Very Good, and Good with merit
wage increases of only 1.75 percent, 1.5 percent, and 1.25
percent, respectively (the postcertification formula). Ac-
cordingly, we affirm the judge’s finding that the Respond-
ent violated Section 8(a)(5) and (1) by unilaterally reduc-
ing unit employees’ merit wage increases beginning in
January 2016. See Beverly Manor Nursing Home, 325
NLRB 598, 598 (1998) (finding that the employer violated
Sec. 8(a)(5) by unilaterally reducing the maximum merit
wage increase from 4 percent to 3 percent), enfd. 174 F.3d
13 (1st Cir. 1999); Southeastern Michigan Gas Co., 198
NLRB 1221, 1221–1223 (1972) (finding that the em-
ployer violated Sec. 8(a)(5) by unilaterally discontinuing
its practice of granting 5-percent wage increases to em-
ployees every 6 months if they received a satisfactory re-
view), enfd. 485 F.3d 1239 (6th Cir. 1973).9
ORDER
The National Labor Relations Board orders that the Re-
spondent, Atlanticare Management LLC d/b/a Putnam
Ridge Nursing Home, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging, reducing the merit wage increases pro-
vided to, or otherwise discriminating against employees
for supporting 1199 SEIU United Healthcare Workers
East (the Union) or any other labor organization.
(b) Changing the terms and conditions of employment
of its unit employees without first notifying the Union and
giving it an opportunity to bargain.
(c) Failing to bargain in good faith with the Union as
the exclusive collective-bargaining representative of the
Respondent’s unit employees by refusing to meet with the
Union at reasonable times to engage in collective bargain-
ing.

8 The present case is distinguishable from Arc Bridges, Inc. v. NLRB,
662 F.3d 1235 (D.C. Cir. 2011), denying enf. 355 NLRB 1222 (2010).
In that case, the court concluded that the employer did not have an estab-
lished practice of providing an across-the-board wage increase each July
because the employer did not use any particular criteria to determine
whether to give an across-the-board wage increase or the amounts of
such increases and did not grant such increases in 3 of the 5 years imme-
diately preceding the alleged unilateral change (and 9 of the previous 15
(d) Refusing to bargain collectively with the Union by
failing and refusing to furnish, and failing to furnish in a
timely manner, requested information that is relevant and
necessary to the Union’s performance of its functions as
the collective-bargaining representative of the Respond-
ent’s unit employees.
(e) Promulgating and maintaining an overly broad rule
that prohibits employees from engaging in union business
on company property or during work hours.
(f) 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) Within 14 days from the date of this Order, offer
Catherine Thomas full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make Catherine Thomas whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against her, in the manner set forth in the remedy
section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge, and
within 3 days thereafter, notify the employee in writing
that this has been done and that the discharge will not be
used against her in any way.
(d) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union as
the exclusive collective-bargaining representative of em-
ployees in the following bargaining unit:
Included: All full-time and regular part-time employees,
including LPNs, CNAs, receptionists, unit secretaries,
dietary aides, housekeeping aides, rehab aides, rehab
techs, restorative aides, laundry aides, maintenance
workers, activities leads/aides, and hospitality aides, in-
cluding those per diem employees in the unit who have
worked an average of four (4) hours or more per week
during the 13 weeks immediately preceding the eligibil-
ity date for the election
years overall). See id. at 1238–1240. Here, as discussed above, the Re-
spondent used fixed criteria to determine whether to grant merit wage
increases and the amounts of such increases and provided merit wage
increases to at least some unit employees every year after it acquired
ownership of Putnam Ridge.
9 For the reasons discussed by the judge, we agree with his rejection
of the Respondent’s argument that it lawfully implemented the postcer-
tification formula upon a good-faith impasse.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Excluded: All other employees, all employees in the
therapy department, RNs, cooks, professional employ-
ees, office clerical employees, guards and supervisors as
defined in the Act
(e) Rescind the reduction of unit employees’ annual
merit wage increases.
(f) Make affected employees whole for any loss of
earnings and other benefits suffered as a result of the uni-
lateral and discriminatory reduction of their annual merit
wage increases, in the manner set forth in the remedy sec-
tion of the decision.
(g) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 2,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay awards to the appropriate calendar years for each
employee.
(h) Furnish to the Union in a timely manner the infor-
mation requested by the Union in paragraphs 1, 2(i), 3, 6,
7, 8, 9, 10, 12, and 17(b)-(k) of its January 6, 2016 infor-
mation request and in its April 19, 2016 information re-
quest.
(i) Rescind the memorandum issued on April 15, 2016,
which prohibits employees from engaging in union busi-
ness on company property or during work hours.
(j) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(k) Within 14 days after service by the Region, post at
its Brewster, New York facility copies of the attached no-
tice marked “Appendix.”10 Copies of the notice, on forms
provided by the Regional Director for Region 2, after be-
ing signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily posted.
In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable steps

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
If the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since December 4,
2015.
(l) Within 21 days after service by the Region, file with
the Regional Director for Region 2 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
IT IS FURTHER ORDERED that the certification of the Un-
ion issued by the Board on December 14, 2015, is ex-
tended for a period of 1 year commencing from the date
on which the Respondent begins to bargain in good faith
with the Union, and that the complaint is dismissed insofar
as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. February 11, 2020
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 vi-
olated 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
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
ATLANTICARE MGMT., LLC D/B/A PUTNAM RIDGE NURSING HOME 5
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT discharge you, reduce your merit wage
increases, or otherwise discriminate against you for sup-
porting 1199 SEIU United Healthcare Workers East (the
Union) or any other labor organization.
WE WILL NOT change your terms and conditions of em-
ployment without first notifying the Union and giving it
an opportunity to bargain.
WE WILL NOT fail to bargain in good faith with the Un-
ion as the exclusive collective-bargaining representative
of our unit employees by refusing to meet with the Union
at reasonable times to engage in collective bargaining.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish or failing to fur-
nish in a timely manner requested information that is rel-
evant and necessary to the Union’s performance of its
functions as the collective-bargaining representative of
our unit employees.
WE WILL NOT promulgate and maintain an overly broad
rule that prohibits you from engaging in union business on
company property or during work hours.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Catherine Thomas full reinstatement to her
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed.
WE WILL make Catherine Thomas whole for any loss of
earnings and other benefits resulting from her discharge,
less any net interim earnings, plus interest, and WE WILL
also make her whole for reasonable search-for-work and
interim employment expenses, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discharge of Catherine Thomas, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the discharge will not be used against her in
any way.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining unit:
Included: All full-time and regular part-time employees,
including LPNs, CNAs, receptionists, unit secretaries,
dietary aides, housekeeping aides, rehab aides, rehab
techs, restorative aides, laundry aides, maintenance
workers, activities leads/aides, and hospitality aides, in-
cluding those per diem employees in the unit who have
worked an average of four (4) hours or more per week
during the 13 weeks immediately preceding the eligibil-
ity date for the election
Excluded: All other employees, all employees in the
therapy department, RNs, cooks, professional employ-
ees, office clerical employees, guards and supervisors as
defined in the Act
WE WILL rescind the reduction of your annual merit
wage increases.
WE WILL make affected employees whole for any loss
of earnings and other benefits suffered as a result of the
unilateral and discriminatory reduction of their annual
merit wage increases, with interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 2, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years for each employee.
WE WILL furnish to the Union in a timely manner the
information requested by the Union in paragraphs 1, 2(i),
3, 6, 7, 8, 9, 10, 12, and 17(b)-(k) of its January 6, 2016
information request and in its April 19, 2016 information
request.
WE WILL rescind the memorandum issued on April 15,
2016, which prohibits you from engaging in union busi-
ness on company property or during work hours.
ATLANTICARE MANAGEMENT LLC D/B/A
PUTNAM RIDGE NURSING HOME
The Board’s decision can be found at
www.nlrb.gov/case/02-CA-177329 or by using the QR
code below. Alternatively, you can obtain a copy of the
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Joane Si Ian Wong, Esq., for the General Counsel.
David F. Jasinski, Esq. and John Heraty, Esq. (Jasinski, P.C.),
for the Respondent.
Katherine H. Hansen, Esq. (Gladstein, Reif & Meginnis), for the
Charging Party Union.
DECISION
STATEMENT OF THE CASE
BENJAMIN W. GREEN, Administrative Law Judge. A trial was
conducted in this matter on January 8, 9, 10, 19, and February 5,
2018, in New York, New York.1 The General Counsel contends
that Atlanticare Management LLC d/b/a Putnam Ridge Nursing
Home (Respondent) violated the Act as follows:2
Section 8(a)(5), (3), and (1): Unilaterally reduced the annual
wage increases of unit employees and did so because employees
elected 1199 SEI United Healthcare Workers East (Union) as
their bargaining representative.
Section 8(a)(5) and (1): Failed to provide the Union with re-
quested information, delayed the production to the Union of
other requested information, failed to meet and bargain with the
Union at reasonable times, and overall bad faith surface bargain-
ing.
Section 8(a)(3) and (1): Discharged Catherine Thomas by
ceasing the assignment to Thomas of per diem shifts.
Section 8(a)(1): Promulgated and maintained (1) an overly
broad rule forbidding employees from engaging in union busi-
ness on company property or during work hours and, (2) in re-
sponse to employees’ union activity, an overly broad rule against
harassment and spreading false rumors.
In addition to standard remedies, the General Counsel seeks
extraordinary remedies of a 12-month extension of the certifica-
tion year, a bargaining schedule, payment by the Respondent of
the Union’s bargaining expense, and a make whole remedy for
employee negotiators for any earnings lost while attending bar-
gaining sessions.
The Respondent has denied the substantive allegations.
For the reasons discussed herein, I find that the Respondent
largely engaged in the unfair labor practices described above. I
do not find that the Respondent violated the Act by failing to

1 The Respondent’s answer to the amended complaint was inadvert-
ently excluded from GC Exh. 1. The General Counsel moved in its post-
hearing brief to include that answer in the record as GC 1-gg, and I grant
the General Counsel’s motion.
furnish the Union with certain cost reports for reimbursement
from Medicaid, promulgating and maintaining the rule against
harassment and spreading false rumors, and overall bad faith sur-
face bargaining. I will order a Mar-Jac remedy extending the
certification year for 12 months, but will not order the remainder
of the extraordinary remedies sought by the General Counsel.
Posthearing briefs were filed by the General Counsel, the Re-
spondent, and the Union.
On the entire record, including my observation of the de-
meanor of the witnesses, I make the following findings, conclu-
sions of law, and recommendations.3
JURISDICTION
The Respondent is a limited liability company with an office
and place of business in Brewster, New York, and has been en-
gaged in operating a nursing home providing inpatient and out-
patient medical care. During the 12-month period before the
complaint issued, the Respondent derived gross revenues in ex-
cess of $100,000, and purchased and received at its Brewster fa-
cility goods valued in excess of $5,000 directly from points out-
side the State of New York. At all material times, the Respond-
ent has been an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act, and the Union has
been a labor organization within the meaning of Section 2(5) of
the Act. Based on the foregoing, I find that this dispute affects
commerce and that the Board has jurisdiction pursuant to Section
10(a) of the Act.
UNFAIR LABOR PRACTICES
FINDINGS OF FACT
The Respondent operates a nursing home and employs em-
ployees in various classifications, including licensed practical
nurses (LPNs), certified nursing assistants (CNAs), aides, and
maintenance workers. These employees work on a full time, part
time, or per diem basis. The Respondent also uses personnel
agencies to supplement its staff. The Respondent admits that it
is less costly and preferable to use its own employees (including
per diem employees) than agency employees.
The Respondent’s managers include Eric Greenberger, part-
owner; Rose Pottinger, administrator; Kathleen Flood, director
of nursing; and Louise Perucci, director of human resources.
Lita Ferraro is the Respondent’s scheduler. David Jasinski is the
Respondent’s labor counsel. The parties stipulated that Green-
berger, Pottinger, Flood, Perucci, Ferraro, and Jasinski are agents
of the Respondent as defined in Section 2(13) of the Act.
The Respondent’s employee handbook was last revised in
February 2015 and includes the following provisions:
EMPLOYMENT CLASSIFICATIONS
. . .
Per Diem Employees:
Employees who are on-call and do not occupy a regularly
scheduled staff position of at least 16 hours per week. Per Diem
2 At trial, the General Counsel moved to withdraw paragraph 11 of
the amended complaint. I granted the General Counsel’s motion and
hereby dismiss that allegation.
3 Testimony contrary to my findings has been discredited.
ATLANTICARE MGMT., LLC D/B/A PUTNAM RIDGE NURSING HOME 7
Employees will be called for coverage on an as-needed basis.
To maintain Per Diem status, Employees most work a mini-
mum of one week-end a month (if needed) and at least two ma-
jor holidays a year. (One winter holiday and one several holi-
day.)
SALARY ADMINISTRATION
A formal program of wage administration has been developed
and is used by Putnam Ridge to maintain a fair and equitable
relationship in the wages paid for the many types of work per-
formed in the Facility. If Putnam Ridge’s goal to maintain
wage levels for its Employees that are competitive with those
paid for similar work by other Employees in our community.
The wage and salary program is reviewed on an annual basis.
PERFORMANCE APPRAISALS
Your performance appraisal will be evaluated regularly as a
tool to assist you in becoming a more valuable member of our
team and to provide you with the feedback that you deserve. A
written performance appraisal will be done upon completion of
your introductory period and thereafter on an annual basis near
your anniversary date. Your department head or supervisor will
review the performance appraisal with you and will provide
you with an opportunity to discuss any questions you may have
regarding any aspect of your employment.
The Respondent has a long history of conducting annual ap-
praisals and granting merit wage increases which correspond
with employees’ overall appraisal ratings. The appraisals con-
tain numeric scores for various categories and those scores are
averaged. The average numeric score then translates to an over-
all rating of outstanding, very good, good, improvement needed,
or unsatisfactory. Historically, employees who received the top
three ratings (outstanding, very good, and good) were given cer-
tain percentage wage increases with employees receiving a
higher pay raise for a better rating and a lower pay raise for a
lesser rating. Appraisal ratings below good did not result in a
merit wage increase. Thus, annual increases associated with
overall appraisal ratings were as follows before January 2016:
This practice was suspended by the previous owner of the
company for a 3-year period prior to the sale of the facility in
2010.
Union Organizing Campaigns, Wage Adjustments, and
Thomas Discharge
The Union engaged in organizing campaigns at the Respond-
ent’s facility in 2012 and 2015. On October 31, 2012, the union
filed its first representation petition for a bargaining unit of
CNAs. [JE 1]

4 Payroll records indicate that the wage increase was implemented on
January 1, 2013.
In 2012, then full time CNA Catherine Thomas participated in
the Union organizing campaign. She was among 10-20 employ-
ees who stood in the facility’s driveway once a week and talked
to employees in support of the Union as they arrived for work.
Thomas also spoke in favor of the Union at antiunion meetings
which were held by contractors of the Respondent and attended
by the Respondent’s managers. Thomas testified that she always
corrected the person who was speaking on behalf of the Re-
spondent if that person said something untrue about unions.
The October 31, 2012 representation petition was ultimately
withdrawn, and no election was conducted in connection with
the 2012 campaign. Thomas was not disciplined or otherwise
discriminated against by the Respondent as a result of her union
activity in 2012.
By memorandum to “all employees” dated January 15, 2013,
the Respondent announced the following wage increase:4
When we acquired Putnam Ridge, we inherited a number of
challenges and
issues to address and correct. We have attempted to correct
these issues. Not as quickly as we would all like but we are
addressing the issues. One of those issues of paramount im-
portance to you and our facility is our commitment to be fair to
all of you.
We instituted a policy to review all of our employees on an an-
nual basis and provide merit increases. We realized that these
increases were not enough, and failed to address the decisions
by the prior ownership not to provide increases for three (3)
years. We cannot address or understand their reasoning behind
their decisions. We can only look to move forward and that is
exactly what we have and will continue to do.
We have reviewed wages and salaries for all of our employees.
We are increasing our hire rates and providing an across-the-
board increase reflecting the industry and the years of service
our employees have given Putnam Ridge. EVERYONE WILL
RECEIVE AN INCREASE TO HIS/HPR HOURLY RATES.
The increases will range from $0.50 to as high as $1.00 per
hour increase in our base rate. These increases will be retroac-
tive to January 1st and will help to attract qualified staff and
reward our current staff. You will receive notification of your
new rate of pay.
Administration would like to thank all of you for your commit-
ment and look forward to continuing to work for the betterment
of Putnam Ridge and continued service to our residents. Thank
you.
For the most part, in 2013, the Respondent did not also grant
annual merit wage increases to employees. Payroll records re-
flect that the 2013 wage adjustment resulted in the receipt by
employees of significantly higher raises as a percentage of their
pay than the merit wage increase (2 percent-2.5percent) they nor-
mally received. For example, on January 1, 2013, laundry aide
Lucia Cardinas received a 6.08 percent wage adjustment from
$9.70 to $10.29.
Evaluation Rating % Annual Wage Increase
Outstanding 2.5%
Very Good 2.25%
Good 2%
Below Good 0%
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In about December 2013, Thomas stopped working for the Re-
spondent on a full-time basis (having found another job) but con-
tinued to work as a per diem. Thomas was off 2 days each week
from her full-time position and worked for the Respondent on
one of those days. She did not have the same days off each week.
Therefore, Thomas advised Ferraro up to a week in advance of
the date she wanted to work, and Ferraro scheduled her a per
diem shift that day. Until December 4, 2015 (discussed at greater
length below), the Respondent never denied Thomas a per diem
shift on a day she requested.
In about January 2015, Thomas started school and changed
her schedule from working one per diem shift a week to one shift
every other week.
On October 5, 2015, the Respondent granted all CNAs a wage
increase. This wage increase was not described on the record in
detail. However, it appears from payroll records that the Re-
spondent increased CNAs’ pay, many of whom earned as little
as $11.50 per hour, to a minimum wage rate of $13.50 per hour.
Certain higher paid CNAs received increases to $14 or $14.10
per hour. Some CNAs also received a merit wage increase in
2015. However, those CNAs were not designated to receive an-
other merit review until 2017 (skipping 2016). As in 2013, the
2015 wage adjustments were significantly higher than the merit
wage increases CNAs would normally have received under the
Respondent’s appraisal rating formula.
On November 6, 2015, the Union filed a representation peti-
tion for a unit of non-professional employees, and the parties
stipulated to an election on December 4, 2015. The stipulated
bargaining unit is as follows:5
Included: All full-time and regular part-time employees, in-
cluding LPNs, CNAs, receptionists, unit secretaries, dietary
aides, housekeeping aides, rehab aides, rehab techs, restorative
aides, laundry aides, maintenance workers, activities
leads/aides, and hospitality aides, including those per diem em-
ployees in the unit who have worked an average of four (4)
hours or more per week during the 13 weeks immediately pre-
ceding the eligibility date for the election
Excluded: All other employees, all employees in the therapy
department, RNs, cooks, professional employees, office cleri-
cal employees, guards and supervisors as defined in the Act.
The Respondent admittedly opposed the Union’s organizing
campaign. Greenberger and Pottinger met with and urged em-
ployees to vote against representation. The Respondent also
mailed flyers to bargaining unit employees urging them to vote
“no” against the Union. One flyer from Pottinger stated, in part,
“Some people have accused me taking [sic] this Union petition
personally. Well, they’re right and I cannot help it.”
In advance of the election, the Respondent was not

5 In its amended answer, the Respondent denied that per diem em-
ployees and activities leads were members of the bargaining unit. How-
ever, Jasinski testified that the parties stipulated to the appropriateness
of the bargaining unit in which the election was conducted and the Union
was ultimately certified as the bargaining representatives of that unit on
December 14, 2015. I find the stipulated and certified unit, as descried
above, to be appropriate.
contemplating a reduction of employee compensation. In fact,
the Respondent was contemplating an increase in compensation
to maintain its competitiveness in attracting personnel.
Thomas testified that she was not in the facility much during
the 2015 organizing campaign because she was no longer work-
ing full time.
A few days before the election, Pottinger called employees,
including Thomas, who were working in the Dogwood unit into
the unit manager’s office. Pottinger talked about the Union and
asked the employees to “give her another chance.” Thomas re-
sponded that this was a “second chance.” Pottinger said she was
not there during the first organizing campaign so for her it was a
first chance. Thomas noted that Greenberger was already given
a first chance and for him it was a second chance.
That same day, Thomas asked for a per diem shift on Decem-
ber 4, 2015, so she would not have to come to work just to vote.
Ferraro told Thomas the Respondent was fully staffed on De-
cember 4, 2015, and did not need her to work that day. This was
the first time Thomas had ever been denied a per diem shift she
requested.
Dietary Aide Wendy McTighe testified that Greenberger and
Pottinger called about five dietary employees into a room for a
closed-door meeting before the election. Pottinger told the em-
ployees she hoped they would “do the right thing for the facil-
ity.” Greenberger echoed Pottinger’s comment and noted that
the Respondent had given the employees a substantial raise.
On December 4, 2015, the election was held and the Union
was elected as the bargaining representative of unit employees.
A tally of ballots reflects that, of approximately 158 eligible vot-
ers, 90 unchallenged ballots were cast in favor of representation
and 46 were cast against representation. On December 14, 2015
the Union was certified as the bargaining representative of the
unit.
Thomas was among the employees who came to the facility to
vote in the election. While she was there, two CNAs told her the
Respondent was understaffed that day (with three CNAs per unit
instead of four). Prior to trial, the Union subpoenaed daily
schedules for the period January 1, 2015 to April 1, 2016. The
Respondent only produced such schedules for 2016 (not 2015).
These schedules (some of which were entered into evidence) in-
dicate how many CNAs worked in each unit each day. There-
fore, the daily schedule for December 4, 2015 could be expected
to show how many CNAs worked in each unit that day. Green-
berger testified as the Respondent’s designated custodian of rec-
ords. Jasinski testified at trial as well. Upon examination re-
garding the subpoenaed records, neither Greenberger nor Jasin-
ski were able to explain why the Respondent failed to produce
the daily schedules for 2015.6
6 Accordingly, it is appropriate to consider secondary hearsay in lieu
of the missing subpoenaed documents, and I rely on Thomas’s hearsay
testimony (i.e., she was told by two CNAs that the facility was under-
staffed) in finding that the facility was understaffed with CNAs on De-
cember 4, 2015. Shamrock Foods Co., 366 NLRBB No. 117, fn. 1 (Board
Decision) and fn. 61 (ALJ Decision) quoting McAllister Towing &
Transportation Co., 341 NLRB 394, 396-397 (2004) enfd. 156 F.Appx.
386 (2nd Cir. 2005).
ATLANTICARE MGMT., LLC D/B/A PUTNAM RIDGE NURSING HOME 9
Shortly after the election was conducted, the Respondent can-
celled its annual Christmas party even though it had already paid
a deposit on the location where the party was to be held.
On December 13, 2015, activity leader Christine Johnsen-
Rega received a merit pay increase of 2.5 percent. Johnsen-Rega
was the last employee to receive a merit wage increase above
1.75 percent.
In January 2016, the Respondent changed its practice of
providing wage increases of 2 percent, 2.25 percent, and 2.5 per-
cent for overall annual appraisal ratings of good, very good, and
outstanding, respectively, to wage increases of 1.25 percent, 1.5
percent, and 1.75 percent for ratings of good, very good, and out-
standing, respectively. On January 10, 2016, activity leader Vic-
toria Starr and CNA Patricia Toranzo were the first two employ-
ees to receive annual merit wage increases below 2 percent.7 The
Respondent has not, either at trial or in its brief, denied that it
changed its merit wage increase formula in the manner described
above. Employees, including Starr, testified to the change, and
the General Counsel introduced into evidence substantiating
evaluations and pay stubs. Additional payroll records further
confirm that employees stopped receiving wage increases above
1.75 percent in January 2016.
In December 2015, following the election, Thomas (as usual)
notified Ferraro of her availability for work, but Ferraro told
Thomas she needed to speak with Flood. Thomas went to
Flood’s office and asked her about being scheduled. Flood told
Thomas the Respondent realized that lots of the per diem em-
ployees were not meeting their requirements and that she (Flood)
and Pottinger would be having a meeting regarding the matter.8
Thomas asked Flood to let her know what happens at the meet-
ing.
Thomas did not hear back from Flood regarding the meeting
or her schedule. However, Thomas still went to the facility once
a month because she had a personal client who lived there.9 Each
time Thomas went to the facility, she asked Flood whether the
meeting had been held regarding per diem requirements, but
each time Flood told Thomas it had not.
In about February 2016, Thomas called Pottinger and left a
voice message indicating that Flood told her she could not be
scheduled until a meeting was held about per diem requirements
and she (Thomas) had not heard back from Flood regarding the
results of that meeting. Pottinger did not return Thomas’s call.
Respondent’s records, as confirmed by Jasinski at trial, indi-
cate the Respondent continued to use agency CNAs (less desira-
ble than per diem CNAs) even though Thomas was no longer
being assigned per diem shifts.
Bargaining
The parties began negotiations for an initial collective-bar-
gaining agreement in March 2016. Bargaining sessions were

7 The Union contends that LPN Kyleann Donnelly was the first em-
ployee to receive, on December 11, 2015, a merit wage increase below 2
percent. However, personnel records contain conflicting dates with one
document indicating that Donnelly was evaluated on December 11, 2015
and another document indicating that she was evaluated on February 29,
2016. Regardless, payroll records indicate that Donnelly’s merit wage
increase was implemented on February 29, 2016 not December 11, 2015.
held on the following dates: March 10, June 1, June 30, August
23, September 20, October 26, November 28, January 10, 2016,
February 7, April 5, July 13, August 7, and December 21, 2017.
In advance of negotiations, by letter dated January 6, 2016,
from Union contract administrator Abigail Colon to Pottinger
(the January 6 request), the Union requested the following infor-
mation:
1. Any and all documents, including but not limited to job de-
scriptions and performance evaluations, that describe the job
duties for all bargaining unit positions;
2. For each employee working in a bargaining unit position,
such documents as will show the following:
. . .
d. date and amount of all wage increases and bonuses
since January 1, 2011;
. . .
f. number of overtime hours worked on a quarterly ba-
sis in 2014 and 2015;
. . .
i. for all employees who have opted out of employer-
paid health insurance coverage, the amount of any fi-
nancial incentive received therefor;
3. Documents showing or reflecting gross annual payroll for
bargaining unit employees for the periods January 1 through
December 31, 2014 and January 1 through December 31, 2015;
. . .
5. Documents, including summary plan descriptions, that
show all fringe benefits such as health insurance, disability,
pension, profit-sharing, and 401(k) benefits available to or pro-
vided to part-time and full-time employees in the bargaining
unit;
6. A copy of the most current payroll roster for bargaining unit
employees;
7. Copies of work schedules, including daily schedules, that
show all individuals, including those not on the Employer’s
payroll, performing bargaining unit work on all nursing units
and all shifts for the period January 1, 2014 to the present;
8. Copies of work schedules, including daily schedules, for all
bargaining unit employees not identified in number 7 above for
the period July 1, 2015 to the present;
9. Documents showing or reflecting the ratio of certified nurs-
ing assistants to residents on all floors per shifts for the period
July 1, 2015 to the present;
. . .
10. Documents showing or reflecting the total cost to the
8 The Respondent claims that Thomas was not meeting her require-
ments regarding work on weekends and holidays. However, the record
contains no admissible evidence that Thomas failed to work weekends
and holidays or was asked by the Respondent to work weekends and hol-
idays. As noted above, the Respondent’s daily records for 2015 were not
provided in response to subpoenas.
9 Thomas took this client to run errands and was authorized to do so
by Flood.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Employer for each of the following benefits provided to bar-
gaining unit employees during the periods January 1 through
December 31, 2014 and January 1 through December 31, 2015:
health, dental, vision, life insurance and pension/retirement;
. . .
12. Copies of invoices received from each agency showing the
names, number of hours worked, rate(s) billed and job title for
each agency employee provided to the Employer from January
1, 2014 to the present;
. . .
16. Complete copies of cost reports submitted, including any
supplemental submissions, for reimbursement for Medicaid or
for any other public entity or program for the years 2013, 2014,
and 2015.
17. Please provide the union with the following documents re-
garding all health insurance plans offered to bargaining unit
employees:
a. A copy of the Summary Plan Description (SPD) and
Summary of Benefits and Coverages (SBC), as well as
any other documents provided to employees that de-
scribe the plan (e.g., upon hire and/or open enrollment
period);
b. Documents showing or reflecting the annual or
monthly cost of the health, insurance plan(s) to the Em-
ployer and share charged to Participating employees for
each plan and for each plan coverage option available
(i.e., single, family, etc.) and, for each plan, showing:
i. medical cost,
ii. prescription cost,
iii. administrative cost, and
iv. any other costs;
c. Documents showing or reflecting the nature of the
insurance program indicating whether fully-insured or
self-insured, and:
i. If fully-insured, please provide documents show-
ing or reflecting whether or not the plan is experi-
ence-rated, and provide documents from the in-
surer(s) indicating the basis for arriving at the cur-
rent premium-rates as well as any premium rates for
the next plan year (if such have been provided.);
ii. If self-insured, please provide documentation as
to the reserves maintained for the payment of claims
and for any stop-loss insurance carried by the Em-
ployer, including coverage terms and cost. In addi-
tion, please provide copies of contracts with all ser-
vice providers including stop loss insurance, third
party administrators, leased network providers, pre-
scription benefits managers, care coordinators, etc.;
d. Documents showing or reflecting census data for the
current and prior insurance contract year showing num-
bers of bargaining unit employees utilizing each of the
plan options, and the same for nonbargaining unit em-
ployees covered by the plan;
e. Documents showing or reflecting the actuarial value
of the plan in aggregate as well as by benefit class. (For
example, the actuarial value of the medical office visit
benefit, the actuarial value of the hospitalization bene-
fit, etc.);
f. If available, please include documents showing or re-
flecting any Custom Group Experience Reporting or
other experience reporting (annually and quarterly) dur-
ing the current and prior 2 insurance contract years,
showing the key utilization and cost indicators sum-
mary; group demographic summary; monitor reporting;
top 20 (or more) diagnoses, procedures, prescriptions,
therapeutic classes with codes, numbers of claimants,
and total cost;
g. Documents showing or reflecting the date the insur-
ance plan will be renegotiated with the insurance carrier
or the third party administrator and any proposed
changes;
h. Documents showing or reflecting all requests for
proposals made and proposals received by the Em-
ployer and/or the Employer’s consultant/broker from
insurers and providers, other than those currently used
by the plan, during the current and prior insurance plan
year regarding health care coverage and insurance;
i. Documents showing or reflecting the dollar
amounts of monthly administrative costs (including
the definition of “administrative costs”)during the
current and prior 2 insurance contract years. In ad-
dition, please provide documents showing or re-
flecting these costs (a) as a share of the premium
payments to the insurer (if fully insured) and (b)as a
percent of the amount of claims paid;
j. All documents showing or reflecting any other costs
incurred other than claims paid;
k. Documents showing or reflecting the financial im-
pact of all changes that the employer is considering with
respect to plan design and cost containment, including
studies, reports, and actuarial analyses;
Hansen and Chinea testified that they told Respondent during
negotiations that the Union wanted information regarding
agency personnel (pars. 7 and 12 of the January 6 request) be-
cause agency employees cost more than the Respondent’s own
employees and it would be more cost effective to funnel that
money into work and pay for unit employees. Chinea testified
that the Union sought cost reports for reimbursement from Med-
icaid and other public programs (par. 16) because the Union
wanted to know the Respondent’s funding sources.
On January 26, 2016, Jasinski sent the Union some, but not of
all, of the information it requested. The information requested
in the above-quoted portions of the January 6 request was not
provided by the Respondent on January 26, 2016.
On February 4, 2016, Chinea emailed Jasinski a letter which
referenced and repeated the January 6 request for information.
On February 12, 2016, Jasinski emailed Chinea a letter indi-
cating that the Union had already received the Respondent’s
ATLANTICARE MGMT., LLC D/B/A PUTNAM RIDGE NURSING HOME 11
response to the January 6 request. Jasinski did not state in this
letter that the Respondent intended to provide additional out-
standing information.
On March 10, 2016, the parties held their first bargaining ses-
sion.10 At this meeting, the Respondent proposed that the parties
address noneconomic subjects before economic subjects. The
Union agreed to start with economics. However, the Union in-
dicated that economics might also need to be discussed because,
in Chinea’s opinion, economics and noneconomics were re-
lated.11 The Union presented the Respondent with its multiem-
ployer collective-bargaining agreement with the League of Vol-
untary Hospitals and Homes of New York. Chinea testified that
the Union presented this agreement to the Respondent as an ex-
ample of a standard contract.
On April 15, 2016, the following memorandum from Perucci
to “All Staff” was posted on a bulletin board near the time clock:
It has come to our attention that a few employees are conduct-
ing union business while on Putnam Ridge’s time. This is not
acceptable and will not be tolerated. Time at work is to be de-
voted to the care our residents.
Union business should not be conducted on Putnam Ridge
property or during work hours.
Any continuation of this practice will result in discipline and
possible termination. The individuals initiating or participating
in this activity during work hours will face disciplinary action.
I ask for your cooperation in this matter.
Thanking you in advance.
McTighe and LPN Lorraine O’Conner testified that the Re-
spondent, before posting this memorandum, never told employ-
ees what they could discuss at work. Rather, employees were
free to talk about whatever they wanted.
On April 19, 2016, Chinea mailed Jasinski a letter that in-
cluded an additional request for the following information (April
19 request): “[A]ll unit schedules of staffing levels - per shift/per
unit for the past (4) four months. Please supply all information
in electronic format (data base or spread sheet).” Chinea testified
that the Union never received these documents from the Re-
spondent. [Tr. 157]
At the June 1, 2016 bargaining session, the Respondent pre-
sented a proposal to the Union on noneconomic subjects.
On September 12, 2016, Chinea emailed Jasinski a compre-
hensive proposal with economic and noneconomic provisions.
The Union’s proposal included the following: a 6 percent wage
increase effective each year of a 3-year contract; certain mini-
mum hourly wage rates by classification with the lowest being
$15 per hour (CNAs, maintenance, receptionists, unit secretaries,
dietary, and housekeeping) and the highest being $30 per hour

10 By letters dated March 14 and April 19, 2016, the Union proposed
March 29, 30, May 4, 11, or 18, 2016 as dates for a bargaining session
after March 10, 2016. The parties did not meet on any of the dates pro-
posed by the Union. The next bargaining session was held on June 1.
11 Throughout the hearing, Jasinski referred to noneconomic issues as
“terms and conditions.”
12 Hansen testified that she understood the Respondent’s proposal on
management rights to include a limitation on the Respondent’s discretion
(LPNs); longevity pay of $1, $2, or $3 per hour for employees
with 4, 8, and 10 years, respectively; shift differentials for shifts
commencing before 6 a.m. or ending after 7 p.m.; 10 holidays
and 3 personal days with pay for the day off plus any hours
worked (pay at 1.5 times the hourly rate for hours worked on 8
“legal” holidays); vacation of 1 week after 6 months, 2 weeks
after 1 year, 4 weeks after 5 years, and 5 weeks after 25 years;
sick leave of 12 days during the first year, 13 days during the
second year, and 15 beginning the third year; additional provi-
sions for leaves of absence, maternity leave, paternity leave, be-
reavement leave, leave for marriage, leave for jury duty, and ed-
ucation leave; welfare and pension fund benefits with contribu-
tions of 28.05 percent and 11.7 percent of gross payroll, respec-
tively; several other funds with total contributions of 1.75 per-
cent of gross payroll; severance; and limits on the use of agency
employees and subcontracting.
On October 7, 2016, Jasinski responded with a modified pro-
posal that only addressed noneconomic provisions. The Re-
spondent’s proposal included provisions for a union shop, pro-
bationary period, no discrimination, union visitation, layoffs,
grievance and arbitration, work-week, unpaid leave, checkoff,
and management rights. Hansen testified on cross-examination
that some of these types of provisions were important for a union
to obtain, but she was not asked about the utility of the particular
provisions proposed by the Respondent. Indeed, the proposal, as
drafted by the Respondent, did not necessarily grant the Union
and employees rights often contained in such provisions. For
example, it is not clear that the Respondent’s proposal protected
employees from discipline, suspension or discharge without just
cause.12 The Respondent also provided that seniority would only
prevail in layoffs if “past performance is equal as determined by
the [Respondent].” On the other hand, the Respondent’s pro-
posal did appear to grant certain Union/employee rights and im-
pose certain obligations on the Respondent.
On October 13, 2016, Chinea emailed Jasinski a letter identi-
fying certain requested information that was still outstanding.
At the October 26, 2016 bargaining session, the Union de-
manded that the parties engage in negotiations concerning all
provisions, including economics. The Respondent reluctantly
agreed.
On November 28, 2016, the Respondent made the following
economic proposal:
Term: Five (5) years effective upon ratification
Minimums: LPNs: $19.50
CNAs: $13.00
Activities Aide: $11.50
Dietary Aide: $10.00
Housekeeping Aide:$10.00
Unit Secretary: $10.00
to suspend or discharge employees without just cause. The manage-
ment’s rights clause states that the Respondent has the right to suspend
or discharge employees “for just cause.” Thus, the Union was not being
asked to waive its right to bargain over certain suspensions and dis-
charges. However, I do not see that the Respondent’s proposal otherwise
included a limitation on suspensions and discharges without cause.
Jasinski did not testify whether he understood the Respondent’s proposal
to include such a limitation.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Maintenance Aide: $11.00
Office Clerical: $10.00
No-Frills Rate:13
LPNs: $2.50 added to base rate.
CNAs, Maintenance: $2.00 added to base rate.
Dietary, Housekeeping, Office: $1.25 added to base rate.
Employees opt-in and opt-out once a year. Employee who par-
ticipates in program waived all benefits including participation
in health benefits plan, paid-time off.
Employer reserves the right to hire above the referenced mini-
mums based on experience in the healthcare industry. Such de-
cision shall not be subject to the grievance and arbitration pro-
cedure.
Increases:
Upon ratification: employees will receive one percent (1 per-
cent) increase on the employee’s anniversary.
After eighteen (18) months:one percent (1 percent) across the
board.
After thirty (30) months:one percent (1 percent) across the
board.
After forty-eight (48) months: one percent (1 percent) across
the board.
In addition to general increase, Employer reserves the right to
provide a merit increase to an eligible employee upon/his/her
anniversary. Merit increase is discretionary and based on the
employee’s performance for the prior year.
Decision to grant or not to offer a merit increase is not subject
to the grievance and arbitration procedure.
Holidays:
Upon completion of the probationary period, non-probation-
ary employees will be entitled to seven (7) holidays per year.
For all holidays, employees who work on the holiday will re-
ceive another day off with pay at their regular rate within thirty
(30) days of the date of the holiday worked.
Employees will be scheduled to work alternate holidays.
Sick Days:
Upon completion of probationary period, employee will begin
to be eligible for seven (7) days per year to accrue on a
monthly basis. (7/12) per month.
Vacations:
After one (1) year of continuous employment:ten (10) days
After ten (10) years of continuous employment: fifteen (15)
days
After twenty (20) years of continuous employment: twenty
(20) days
Health Insurance:
Eligible employee contributions are as follows:
Plan A: Single Coverage: $53.00/per pay
Dependent Coverage: $160.00/per pay
Plan B: Single Coverage: $21.00/per pay
Dependent Coverage: $79.00/per pay

13 The no-frills rate is a rate of pay without benefits.
Eligible employees must be regularly scheduled and work
thirty (30) hours per week to be eligible to participate in health
insurance program.
Increased premium costs in health insurance during the term
of the contract shall be paid 50 percent by the employee and
50 percent by the Employer. Employer reserves the right to
change healthcare providers during the term of the contract.
The Employer agrees to notify the Union thirty (30) days prior
to the proposed change in healthcare provider and agrees to
meet with the Union to discuss the proposed change of
healthcare providers.
Employer Reserves the Right to Add to, Subbtract From or
Modify the Terms of the Employer’s Proposal.
In subsequent negotiations, Jasinski clarified that any current
wages and benefits not specifically covered by the Respondent’s
proposals would be eliminated.
Payroll records indicate that most employees were already be-
ing paid an hourly wage that was greater than the minimum wage
rates proposed by the Respondent. However, approximately 17
active employees in the positions of housekeeper, laundry aide
and dietary aide were earning $9.70 per hour (i.e., less than the
Respondent’s proposed minimum rate of $10 per hour). About
four additional employees in the same classifications were earn-
ing between $9.85 and $9.89 per hour. Thus, a total of about 21
employees would have been entitled to a wage increase under the
Respondent’s proposed minimum wage rates.
Jasinski described the parties’ respective positions during ne-
gotiations regarding the Respondent’s economic proposal as fol-
lows:
Ms. Hansen spoke up that she felt that this was regressive bar-
gaining; I think that was the term that she used. She stated that
. . . we proposed less holidays than the employees previously
received. She commented that the employer’s proposal pro-
vided less of an increase than the employees previously re-
ceived. My comment to Ms. Hansen was that this was negoti-
ations. That there was no guarantee. That it’s not what the em-
ployees currently have, but we’re looking at a total and com-
plete collective bargaining agreement. I also reminded the un-
ion . . . that [its] proposal amounted to at least a 70 percent in-
crease in the costs of labor for this particular facility. And I re-
minded them . . . that the union’s proposal was . . . all over the
place. That they were asking for a pension. They were asking
for health and welfare. They had a minimum of 15 dollars an
hour. On top of that, the six percent increase in each year of the
collective bargaining agreement. So it gave us a little idea in
terms of where the union wanted to go with regards to getting
an ultimate contract. So our proposal was in response to that.
On December 13, 2016, Jasinski emailed Chinea a letter en-
closing the following information:
1. Updated list of gross payroll for 2016;
2. Date and amount of all wage increases from 2011;
3. Gross annual payroll for bargaining units for 2014 and 2015;
4. Number of overtime hours worked on a quarterly basis in
2014 and 2015;
ATLANTICARE MGMT., LLC D/B/A PUTNAM RIDGE NURSING HOME 13
5. Cost of benefits and deductions as of December 2016;
6. Gross amount paid for health insurance in 2014, 2015, and
2016.
On December 14, 2016, Jasinski emailed Chinea the Respond-
ent’s 2014 cost report submitted for Medicaid reimbursements.
[J 26] Jasinski did not explain in his cover letter why the cost
reports for 2013 and 2015 were not provided. (See January 6 re-
quest # 16.)
On December 15, 2016, Jasinski emailed Chinea a letter stat-
ing that (1) “[t]he no frills rate for opting out of employer-paid
health insurance coverage for LPN is an additional $2.50” and
(2) “[t]he insurance plans are renewed in June of each year.”
On December 20, 2016, Jasinski emailed Chinea the daily
schedules for dates from December 1, 2014 to March 5, 2014.
Jasinski did not state in his cover letter why additional outstand-
ing schedules were withheld for the period March 6, 2014 to De-
cember 20, 2016. (See January 6 request #7.)
On January 6, 2017, Jasinski emailed Chinea a letter regarding
merit wage increases, which stated as follows:
Putnam Ridge proposes to provide wage increases for all eligi-
ble bargaining unit employees on their anniversary. We will
continue to employ the prior practice of reviewing an employee
on his/her anniversary and consider providing increases based
on a number of factors, including but not limited to overall
work performance for the previous year.
This is not a guarantee of a wage increase for any employee.
The range for wage increases will be from 0 - 1.75 percent. We
are willing to meet and confer regarding these potential wage
increases on the anniversary of each employee. Please advise.
Prior to this letter, the Respondent had not notified or offered
to bargain with the Union regarding the range of wage increases
associated with employee appraisal ratings.
During negotiations, the parties largely took turns modifying
their respective proposals with neither side wanting to make two
moves in a row and bargain against itself. By January 2017, the
Union had modified its wage proposal to reduce its demand from
three annual increases of 6 percent to a 6 percent increase the
first two years of the contract and a 5.75 percent increase the
third year. At the January 10, 2017 bargaining session, the Un-
ion asserted that it was the Respondent’s “turn” to move. How-
ever, the Respondent refused to revise its proposal because, ac-
cording to Jasinski, the Union’s movement had been insufficient
to date.
On April 3, 2017, Jasinski emailed Chinea a letter in which he
confirmed the date of the next bargaining session (April 5, 2017)
and asked whether any requested information was outstanding.
On April 5, 2017, Chinea emailed the following letter in re-
sponse to Jasinski’s April 3, 2017 correspondence:
We look forward to negotiations this afternoon. With respect
to the attached letter, I assume you meant that you are request-
ing a list of the information that the Union believes has not yet
been provided. We will be prepared to itemize the missing

14 I do not consider the different testimony regarding this incident to
be significant and make no credibility findings regarding them.
information at bargaining today. However, the Employer
should be well aware of what information is outstanding as it
knows what information has been produced and because the
Union has detailed the outstanding information at numerous
bargaining session. In particular, the Union has notified the
Employer of its outstanding request for a current run of gross
payroll for bargaining unit employees (in an electronic sortable
format), all information regarding agency use and expenses at
the facility, and accurate and complete information related to
the health insurance plans offered by the Employer—as set
forth in the Union’s information request. As I’m sure you re-
member, at the last session we asked numerous questions about
the Employer’s health insurance plans and the Employer was
not able to answer to our questions. We hope and expect that
the Employer will come today with documents responsive to
our outstanding requests and will be prepared to discuss that
information in detail.
During the April 5, 2017 bargaining session, Jasinski claimed
that the Union’s proposal, if accepted, would increase the Re-
spondent’s labor costs by over 70 percent. The Union asked how
Jasinski arrived at this figure, but he did not say. After a caucus,
Greenberger did not return because he had to leave early. The
Union objected to his early departure. According to witnesses
for the General Counsel, during this exchange, an employee told
Jasinski not to talk to her like a shmuck. Jasinski claims, to the
contrary, that the employee called him a “fucking shmuck.”
Jasinski packed up to leave and said he would not be subject to
anti-Semitic comments. The employee stated that she, herself,
was Jewish. More specifically, according to Chinea, the em-
ployee said, “I’m Jewish, you fucking moron.”14
On April 7, 2017, a memorandum addressed to “Our staff”
was posted near the time-clock and stated as follows [J 6]:15
A number of our employees have brought to our attention that
they have been subject to harassment and bullying by other em-
ployees. Employees are also spreading false rumors about us.
This is happening in the work a reason working time. This is
totally unacceptable and will not be tolerated by Administra-
tion.
We have “zero” tolerance for any type of harassment in the
workplace. We all have a difficult job and no one has the right
to try to intimidate or harass our employees. We have never
allowed this by anyone and we are not about to start now. If
anyone feels that he/she is being gullied or threatened, please
let us know and we will investigate and take appropriate action
up to and including termination.
Our facility has been a welcoming place where we have all
worked together for everyone’s benefit. We will not let anyone
violate our employees and create a hostile work environment.
Thanks to all of you for your hard work and dedication to our
facility.
On April 7, 2017, Jasinski also emailed Chinea a letter with
his account of events during the previous bargaining session.
Jasinski stated in this letter, “We will never tolerate this type of
15 This memo was still posted on the time-clock bulletin board as of
the trial in this matter.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
behavior. Should it happen again, we will leave the meeting.”
Jasinski also repeated his claim that the Union’s proposal would
increase the Respondent’s labor costs by more than 70 percent.
[J 7]
On April 12, 2017, Hansen emailed Jasinski a letter with her
account of events at the previous bargaining session and the fol-
lowing statement regarding outstanding information:
If the Employer is interested in bargaining in good faith, it will
provide the requested information without delay, review the
Union’s actual proposals, and come prepared to answer ques-
tions about relevant subject matters at the next session. While
we will provide bargaining dates, it is clear that bargaining will
not be productive until the Union has the information it re-
quested, particularly with respect to agency usage and health
insurance. We expect that all of the requested information will
be provided without delay and by no later than April 21, 2017.
On April 18, 2017, Jasinski emailed Hansen a letter which
contested her version of the April 5, 2017 bargaining session and
purported to provide the details of his claim that the Union’s pro-
posal would increase the Respondent’s labor cost by more than
70 percent. [J 9] With regard to the latter, Jasinski stated as fol-
lows:
The Union’s latest proposal showed little if any movement. In
particular, I explained the proposed costs of the Union’s pro-
posal and provided you with a cost based on your proposal. I
represented that it was approximately 70% increase in costs. I
didn’t believe it was necessary to break it down. You asked
how I got to that number. This represents the increases:
General increase: 6% each year;
Increase minimums: 25% - 40%; This percentage is based on
the different classifications;
Longevity: 15% - 20%; This increase is based on years of ser-
vice;
PTO: 20%;
Benefit Fund: 28.05%;
Pension Fund: 11.7%;
Education Fund: 0.5%;
Job Security Fund: 0.25%;
Worker Participation Fund: 0.25%;
Child Care: 0.5%;
Pension, Health, Legal: 0.5%; and
Legal Services: $125.00 times the number of employees each
year.
Depending on the individual job classification, the Union’s
proposal is more than 70 percent increase. This figure does not
include your proposals regarding terms and conditions which
further adds to the costs of labor.
During subsequent bargaining sessions, the Union advised
Jasinski that his calculation was unsubstantiated without a gross
payroll showing the hours that employees actually accumulated
and were paid. With such requested information, the Respond-
ent’s labor costs could be compared to a calculation of what the
same hours would cost under the Union’s proposal. Further,
since the Union could not verify the actual cost of its proposal, it
was reluctant to dramatically reduce its demands. At trial,
Jasinski admitted that he did not actually calculate or know the
specific dollar cost of the Union’s proposal.
On April 19, 2017, Hansen emailed Jasinski a letter which as-
serted that the Respondent’s April 7, 2017 memorandum was un-
lawful and demanded its “immediate rescission.”
On April 25, 2017, Jasinski emailed Chinea “the most recent
employee payroll information for bargaining unit personnel.”
Greenberger testified that he received this information from the
Respondent’s payroll company. The payroll information con-
tained a list of employees with their IDs, job codes, status, stand-
ard hours per week, and hourly wage rates. In addition, the April
25, 2017 email contained certain information regarding em-
ployee medical insurance.
The parties subsequently exchanged correspondence regard-
ing the next bargaining date with the Union proposing May 22,
23, June 2 or 8, 2017 and the Respondent proposing June 6, 15,
or 20, 2017. An agreement was reached to meet on June 20,
2017. However, on June 13, 2017, the Respondent requested
that negotiations be rescheduled because Jasinski had an upcom-
ing trial. The Union proposed July 12–14, 2017 and the parties
met to bargain on July 13, 2017.
By letters dated August 11 and 17, 2017, the Union proposed
September 18–19, 2017 as dates for the next bargaining session.
The Respondent did not respond to this request.
By email on September 11, 2017, Hansen requested that Jasin-
ski provide a response to proposed bargaining dates and out-
standing information, as follows:
[A]s you know, the Union is still awaiting numerous docu-
ments requested in connection with the ongoing contract nego-
tiations. In particular, the Union has repeatedly requested the
information concerning agency use as set forth in the Union’s
January 6, 2016 information request. As we have discussed in
detail at each of the last many bargaining sessions, agency us-
age is a major concern for the bargaining unit including the
number of agency workers being used to perform bargaining
unit work, the scheduling of those workers, the impact agency
use has on the bargaining unit, and the amount of money the
facility is willing to pay non-bargaining unit employees to per-
form bargaining unit work. The Employer has repeatedly stated
that it would provide the requested information regarding
agency use but, to date, the Union has received none of the re-
quested information. Please provide the requested information
without further delay.
The Union also still awaits a response to its offered bargaining
dates. Please respond without further delay.
On October 9, 2017, the Union proposed October 24–26 as
dates for the next bargaining session. The Respondent did not
respond.
On October 27, 2017, the Union proposed November 9 or 13
as dates for the next bargaining session.
With regard to the parties’ failure to meet in September and
October 2017, Jasinski testified as follows:
Well, September is a difficult month because of the Jewish hol-
idays. Eric Greenberger is an observing Jew and there are a
number of holidays in the month of September and October.
That makes it rather challenging for us to get negotiation dates.
ATLANTICARE MGMT., LLC D/B/A PUTNAM RIDGE NURSING HOME 15
Mr. Chinea is also someone who’s very busy with regard to
contract negotiations as well. So it presented—it presented a
challenge with regards to September and October.
On November 16, 2017, the Respondent notified the Union
that Jasinski had been in a car accident on November 5, 2017 and
spent 4 days hospitalized in the intensive care unit.16 Accord-
ingly, the Respondent requested a postponement of the trial in
this case, which was then scheduled for December 6, 2017. Han-
sen agreed to an adjournment of the trial but demanded in ex-
change a bargaining date before the end of the year. The Re-
spondent agreed to a bargaining date of December 21, 2017.
At the December 21, 2017 bargaining session, the Union pro-
posed and the Respondent agreed to a subcommittee meeting
dealing with health benefits. However, the Respondent had not
agreed to a specific date for such a meeting as of the last day of
trial, February 5, 2018.
The parties moved on their economic proposals throughout
negotiations, but only to a limited degree.17 The Union regularly
complained about not receiving requested information and indi-
cated that this impeded its ability to move in larger increments.
Hansen and Chinea testified that, in particular, the Respondent’s
failure to provide gross payroll with actual hours and pay pre-
vented the Union from costing its proposal and determining
whether Jasinski was correct in his claim that the proposal would
increase the labor costs by more than 70 percent. The Union also
indicated throughout negotiations that it had “a lot of room to
move on its” proposal but would not accept a proposal that was
worse than terms and conditions the employees already had.
Chinea testified that the parties were making adjustments and
could be expected to “start high” and “meet in the middle,” but
“the interesting dynamic here . . . is that [the Respondent] would
propose actually less than what they’re currently giving [to em-
ployees].”
As of the trial, the Union had moved in its wage proposal from
annual increases of 6 percent each year for 3 years to increases
of 5 percent the first 2 years of the contract and 4.5 percent the
third year. The Union also reduced its proposal for certain wage
minimums. Meanwhile, the Respondent increased its wage pro-
posal to a total of 6 percent (annual increments of 1 percent-1.5
percent) over the term of a 5-year contract. The Respondent also
increased its proposed minimum wage for CNAs to $13.50
(which is the current minimum rate for CNAs).
A comparison of the Respondent’s final proposal to a sum-
mary of current benefits the Respondent provided to the Union
does reflect, as Jasinski admitted, that the Respondent was still
proposing certain reductions in employee benefits in early-2018.
The Respondent’s proposal appears to seek the following con-
cessions:
•Does not provide for continuation of $25,000 life insurance
policy for full time employees.
• Does not provide for continuation of 401(k) plan with

16 Jasinski testified that he was actually in the ICU for 5 days with
four fractured ribs, a fractured pelvic bone in two locations, and a lacer-
ated spleen.
discretionary employer matching.
• Replaces double time for hours worked on a holiday with
one day of compensatory leave.
•Does not provide for continuation of 3 days of bereavement
leave.
• Reduces vacation: Proposes for all employees regardless of
classification to receive 10 days of vacation after 1 year of ser-
vice, 15 days of vacation after 10 years of service, and 20 days
of vacation after 20 years of service. Conversely, all employees
were currently receiving at least 3 weeks of vacation after 4 years
of service. Further, all RNs received 4 weeks of vacation and
certain other designated classifications received 4 weeks of va-
cation after 4 years.
• Does not provide for continuation of free counseling ser-
vices.
•Does not provide for continuation of tuition reimbursement
with reimbursement of 50%-100% (depending upon class grade)
with a 2 year employment commitment.
• Does not provide for continuation of dental insurance.
• Does not provide for continuation of camp scholarship pro-
gram with $1,500 reimbursement for each child (3 child cap) to
attend day camp.
• Does not provide for continuation of college scholarship pro-
gram with $1,000 reimbursement for each child (2 child cap)
who attends college.
• Does not provide for continuation of “employee of the quar-
ter” program for employee who is voted to receive $50 gift card
and a parking space.
• Does not provide for continuation of recognition events dur-
ing the week.
• Does not provided for PRIDE program with prizes for ex-
ceptional service.
Jasinski denied, at trial, that the Respondent’s last proposal
was less favorable than employees’ current compensation. Alt-
hough Jasinski admitted that the Respondent was proposing a re-
duction in certain individual benefits, he claimed that the Re-
spondent made up the difference by offering better wages. Jasin-
ski further testified as follows with regard to the Union’s claim
that the Respondent’s last economic proposal was “regressive:”
That was said at the bargaining table, and our response was
everything was negotiable, that we had put out a package that
was being negotiated, and . . . the union’s proposal of 70 per-
cent was so extreme from our perspective that . . . if we don’t
start at a particular level, that there are give and take, that there
are no guarantees in negotiations, and that was our proposal. I
believe I also said that that was not our final proposal as well. .
. . I appreciated what Ms. Hansen and Mr. Chinea said with
regards to that. We were, in some respects, proposing less than
what the employees had before. But the complete package was
more.
17 After their initial written contract proposals, the parties exchanged
counter proposals verbally. The parties’ bargaining notes were not en-
tered into evidence and the participants who testified did not recall ex-
actly what moves were made or when.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondent’s final economic proposal was not neces-
sarily worse than the merit wage increases employees received
before 2016. As indicated above, the Respondent ultimately pro-
posed annual increases in increments of 1 percent-1.5 percent to-
taling 6 percent over 5 years and reserved the right to continue
granting merit wage increases on employees anniversaries.
Thus, for example, Housekeeper Rosando Alama-Larreta, earn-
ing $10.84 per hour, received an evaluation of outstanding on
March 6, 2017, which would have translated to a 2.5 percent in-
crease of $0.27 under the pre-2016 merit wage formula. How-
ever, if Alama-Larreta received a 1 percent wage adjustment
($0.11) and a 1.75 percent merit increase ($0.19 under the Re-
spondent’s post-election formula) on a $10.84 per hour rate, she
would have received a total wage increase of 2.75 percent or
$0.30 per hour in 2017 (i.e., higher than the 2.5 percent increase
she would have received before the Union was elected).18
Amendment of the Complaint with Regard to Overall
Bad Faith Bargaining
The amended complaint alleged in paragraph 17(b) that the
Respondent failed to meet with the Union at reasonable times
between August 11, 2017 and early-December 2017. Paragraph
17(c) alleged that the Respondent by its overall conduct, as de-
scribed in 17(b), failed and refused to bargain in good faith.
On the second day of trial, I asked the General Counsel to
clarify whether the Region was alleging overall bad faith bar-
gaining. However, the answer was not clear and I, therefore, al-
lowed Respondent’s counsel to conduct certain cross examina-
tion that might be relevant to a surface bargaining allegation.
The next day, I asked the General Counsel the same question,
but still found the answer to be ambiguous. Accordingly, I again
allowed the Respondent leeway on cross examination.
On the fourth day of trial, the General Counsel moved to
amend paragraph 17 of the complaint to include an allegation
that the Respondent engaged in overall bad faith bargaining by
committing the other unfair labor practices alleged in the com-
plaint and by insisting without explanation on proposals less fa-
vorable than what unit employees had before the election. In
addition, the General Counsel moved to amend the remedy to
include a bargaining schedule, a make whole remedy for em-
ployee negotiators, and reimbursement for Union bargaining ex-
penses.
The General Counsel attempted to justify these amendments
on the grounds that the Respondent’s cross examination of Han-
sen revealed new information (and also made it apparent that
Hansen had to be recalled for additional testimony). I rejected
the contention that the cross-examination of Hansen justified the
amendments since the Region had access to Hansen during the
investigation and all the evidence it needed to determine the mer-
its of a surface bargaining allegation. However, I allowed the
amendments and additional testimony of Hansen on the grounds
that there was little prejudice since the Respondent had at least a
degree of prior notice of the allegation in the complaint and had
been granted leeway in cross-examination regarding it. I

18 While I did not do this calculation for all the employees, the calcu-
lations I did do reflected that employees would have generally received
total annual wage increases (contractual wage adjustment plus merit
allowed the General Counsel to recall Hansen and she proceeded
to testify at regarding the parties’ respective proposals through-
out negotiations.
ANALYSIS AND CONCLUSIONS
April 15, 2016 Memorandum
The General Counsel contends that the Respondent violated
Section 8(a)(1) of the Act by, on April 15, 2016, posting an over-
broad rule which prohibited employees from engaging in union
business on company property or during work hours. I agree.
The April 15, 2016 memorandum does not implicate the
Board’s recent decision in The Boeing Co., 365 NLRB No. 154
(2017) (Boeing) because the restriction was not “facially neu-
tral.” Rather, the Respondent posted a rule that “explicitly re-
stricts activities protected by Section 7.” Lutheran Heritage Vil-
lage Livonia, 343 NLRB 646, 646, fn. 5 (2004) (Lutheran) (a
rule prohibiting solicitation, which is not limited to working
time, violates the Act because the rule explicitly prohibits em-
ployee activity that the Board has found to be protected). The
Board has long held that rules are overbroad to the extent they
ban Section 7 activity (1) on company property (since employees
are entitled to engage in such activity on company property dur-
ing breaks and other non-working time) and (2) during “working
hours” (without clarifying that the restriction does not apply to
non-working time). UPMC, UPMC Presbyterian Shadyside,
366 NLRB No. 142 (Aug. 6, 2018); Hyundai America Shipping
Agency, 357 NLRB 860 (2011); Laidlaw Transit, Inc., 315
NLRB 79, 82 (1994); Valley Special Needs Program, Inc., 314
NLRB 903, 913 (1994). The Respondent’s April 15, 2016 mem-
orandum ran afoul of these longstanding policies and violated
Section 8(a)(1) of the Act.
April 7, 2017 Memorandum
The General Counsel contends that the Respondent violated
Section 8(a)(1) of the Act by, on April 7, 2017, in response to
employees’ protected union activity, posting rules which prohib-
ited harassment and spreading false rumors. I do not agree and
will dismiss the allegation.
The April 7, 2017 memorandum implicates the Board’s recent
decision in Boeing, 365 NLRB No. 154 (2017) because the re-
striction is facially neutral. Under Lutheran, 343 NLRB at 647,
the Board explained that a facially neutral rule would violate the
Act under the following circumstances:
If the rule does not explicitly restrict activity protected by Sec-
tion 7, the violation is dependent upon a showing of one of the
following: (1) employees would reasonably construe the lan-
guage to prohibit Section 7 activity; (2) the rule was promul-
gated in response to union activity; or (3) the rule has been ap-
plied to restrict the exercise of Section 7 rights.
The Board in Boeing, 365 NLRB slip op. at p. 3, overruled the
“reasonably construe” standard in the first prong of the Lutheran
analysis and replaced it with the following balancing test:
[W]hen evaluating a facially neutral policy, rule or handbook
wage increase) about 0.25 percent higher than the old merit wage in-
creases standing alone.
ATLANTICARE MGMT., LLC D/B/A PUTNAM RIDGE NURSING HOME 17
provision that, when reasonably interpreted, would potentially
interfere with the exercise of NLRA rights, the Board will eval-
uate two things: (i) the nature and extent of the potential impact
on NLRA rights, and (ii) legitimate justifications associated
with the rule. We emphasize that the Board will conduct this
evaluation, consistent with the Board’s “duty to strike
the proper balance between . . . asserted business justifications
and the invasion of employee rights in light of the Act and its
policy,” focusing on the perspective of employees, which is
consistent with Section 8(a)(1). [Citations omitted]
The Boeing Board went on to delineate the following three
categories of employment policies under the new standard:
• Category 1 will include rules that the Board designates as
lawful to maintain, either because (i) the rule, when reasonably
interpreted, does not prohibit or interfere with the exercise of
NLRA rights; or (ii) the potential adverse impact on protected
rights is outweighed by justifications associated with the rule.
Examples of Category 1 rules are the no-camera requirement
in this case, the “harmonious interactions and relationships”
rule that was at issue in William Beaumont Hospital, [363
NLRB No. 162 (Apr. 13, 2016)] and other rules requiring em-
ployees to abide by basic standards of civility.
• Category 2 will include rules that warrant individualized
scrutiny in each case as to whether the rule would prohibit or
interfere with NLRA rights, and if so, whether any adverse im-
pact on NLRA-protected conduct is outweighed by legitimate
justifications.
• Category 3 will include rules that the Board will designate
as unlawful to maintain because they would prohibit or limit
NLRA-protected conduct, and the adverse impact on NLRA
rights is not outweighed by justifications associated with the
rule. An example of a Category 3 rule would be a rule that pro-
hibits employees from discussing wages or benefits with one
another.
Boeing, 365 NLRB slip op. at p. 3–4.
Initially, I reject the General Counsel’s contention that the
April 7, 2017 memorandum violated the second prong of the Lu-
theran test (not overruled by Boeing) because it was promulgated
in response to employees’ union activity (i.e., arguing with Jasin-
ski during the April 5, 2017 bargaining session). The memoran-
dum opens by specifically stating that “employees have brought
to our attention that they have been subject to harassment and
bullying by other employees.” It does not make reference to an
employee’s argument with Jasinski. Further, it is not particularly
surprising that the Respondent issued such a memorandum
shortly after meeting with labor counsel. Jasinski subsequently
stated in a letter to Chinea regarding the April 5, 2017 altercation
that the Respondent would “never tolerate this type of behavior,”
but indicated that its response would be to “leave the meeting.”
Jasinski did not reference the April 7, 2017 memorandum or

19 Statements are not protected if they are maliciously false or stated
with reckless disregard for the truth. See Five Star Transportation, Inc.,
349 NLRB 42, 46 (2007); TNT Logistics North America, Inc., 347 NLRB
568, 569 (2006). However, inaccurate statements may be protected if
indicate that employees would be subject to discipline if they
again engaged in the conduct the Respondent was attributing to
them at the previous bargaining session. Accordingly, I do not
find it a fair or reasonable reading of the April 7, 2017 memo-
randum to conclude that it was posted in response to an alterca-
tion during negotiations. Evidence that employees subjectively
interpreted the memorandum that way is irrelevant as the test to
determine whether a rule violates the Act is an objective one.
Miami Systems Corp., 320 NLRB 71, fn. 4 (1995), enfd. in pert.
part 111 F.3d 1284 (6th Cir. 1997).
The General Counsel does not contend and the record contains
no evidence that rules in the April 7, 2017 memorandum were
applied in such a way as to restrict the exercise of Section 7
rights. Accordingly, the memorandum was not unlawful under
the third prong of the Lutheran test.
Finally, I do not agree with the General Counsel’s contention
that a prohibition against the spreading of false rumors is “un-
lawful as it prohibits false statements that are rumors when the
Board has long found that even false statements made during em-
ployees discussions are protected.”19 (GC Brief p. 82) Applying
the old “reasonably construe” test in Lutheran, the Board has re-
fused to find unlawful a similar rule against “harmful gossip,”
which “Merriam-Webster’s Dictionary (10th ed. 1999) defined
as ‘rumor or report of an intimate nature’ or ‘chatty talk.’” Hyun-
dai America Shipping Agency, Inc., 357 NLRB 860, 861 (2011).
The Board determined that a prohibition against such rumors
would not be reasonably constructed by employees to prohibit
Section 7 activity. Id. The memorandum at issue here is even
less likely to encompass protected activity than the rule found
lawful in Hyundai since “harmful gossip” could arguably en-
compass rumors that ultimately proved true. Given that the
Board in Hyundai found a similar prohibition lawful under the
old Lutheran standard, I find that the rule at issue here is a lawful
category 1 restriction that the Respondent was entitled to main-
tain because, “when reasonably interpreted, [it] does not prohibit
or interfere with the exercise of NLRA rights.” Boeing, 365
NLRB slip op. at p. 3.
Based upon the foregoing, I will dismiss the allegation that the
April 7, 2017 memorandum violated Section 8(a)(1) of the Act.
Thomas Discharge
The General Counsel contends that the Respondent dis-
charged Thomas by refusing to assign her per diem shifts be-
cause of her union activity. I agree.
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982), “the Gen-
eral Counsel must prove that antiunion animus was a substantial
or motivating factor in the employment action. If the General
Counsel makes the required initial showing, the burden then
shifts to the employer to prove by a preponderance of the evi-
dence that it would have taken the same action even in the ab-
sence of employee union activity.” Baptista’s Bakery, Inc., 352
NLRB 547, 549, fn. 6 (2008). The elements of the General
Counsel’s initial burden “are union or protected concerted
they are not made with malice or recklessness. The General Counsel
does not assert in its brief that the memorandum was overly broad to the
extent it discussed the harassment of employees.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
activity, employer knowledge of that activity, and union animus
on the part of the employer.” Auto Nation, Inc., 360 NLRB 1298,
1301 (2014). Circumstantial evidence may be used by the Gen-
eral Counsel to meet its burden of showing employer knowledge
and animus. Naomi Knitting Plant, 328 NLRB 1279, 1281
(1999); Montgomery Ward & Co., 316 NLRB 1248, 1253–1254
(1995), enfd. 97 F.3d 1448 (4th Cir. 1996). Such circumstantial
evidence may include the timing of alleged discriminatory ac-
tion, general knowledge of and animus toward employees’ union
activities, failure to follow past practice, disparate treatment of
discriminatees, shifting or irrational explanations for the treat-
ment of discriminatees, and other contemporaneous unfair labor
practices. Kitsap Tenant Support Services, Inc., 366 NLRB No.
98, slip op. at 14 (May 31, 2018); Novato Healthcare Center,
365 NLRB No. 137 (Sep. 29, 2017); Lucky Cab Co., 360 NLRB
271, 274 (2014).
The evidence indicates that Thomas was an active and open
Union supporter during the 2012 organizing campaign who
spoke up at the Respondent’s antiunion meetings (attended by
managers) and contested certain comments by the person hold-
ing those meeting. She was not often present at the facility dur-
ing the Union’s second organizing campaign in 2015. However,
a few days to a week before the election, she did speak up at a
meeting in which Pottinger asked employees to give the Re-
spondent “another chance.” Thomas challenged Pottinger by in-
dicating that the Respondent had already been given a chance in
2012. Thus, the evidence indicates that Thomas engaged in pro-
tected union activity that the Respondent was aware of in 2012
and shortly before the election in 2015.
The timing strongly supports a finding that the Respondent
stopped assigning Thomas per diem shifts because of her union
activity. The day Thomas challenged Pottinger about giving the
Respondent “another chance” was the last day Thomas worked
at the facility. Thereafter, the Respondent did not offer Thomas
another per diem assignment.
It is also particularly telling of the Respondent’s discrimina-
tory intent that Thomas was denied the opportunity to work on
the day of the election, December 4, 2015. Thomas had never,
previously, been denied a per diem assignment on a day she re-
quested to work. Although Ferrero told Thomas the facility was
fully staffed on December 4, 2015, the Respondent failed, with-
out explanation, to produce subpoenaed records which could
have substantiated (or undermined) this claim. In addition,
Thomas testified that two employees told her the facility was un-
derstaffed with CNAs on December 4, 2015. As discussed in the
fact section, I rely on this testimony and infer that the Respond-
ent was not, as Ferrero claimed, fully staffed on the day of the
election. Shamrock Foods Co., 366 NLRBB No. 117, fn. 1
(Board Decision) and fn. 61 (ALJ Decision) quoting McAllister
Towing & Transportation Co., 341 NLRB 394, 396–397 (2004)
enfd. 156 F.Appx. 386 (2nd Cir. 2005). The Respondent’s pre-
textual reason for denying Thomas work on December 4, 2015

20 The Respondent has alternatively asserted that Thomas voluntary
stopped seeking per diem shifts. This is factually inaccurate. Thomas
sought additional per diem shifts and was told that she would not be as-
signed any until Pottinger and Flood had a meeting regarding per diem
requirements. Thomas followed up to determine the results of this
suggests it wanted to prevent her, a known Union supporter,
from voting. Such specifically targeted antiunion animus also
strongly suggests that the Respondent ceased offering Thomas
per diem assignments because of her union support and activity.
The Respondent’s stated reason for terminating Thomas’s per
diem shifts (i.e., she failed to meet per diem requirements for
working weekends and holidays) is equally pretextual.20 The Re-
spondent’s employee handbook states that per diems must “work
a minimum of one week-end a month (if needed).” (emphasis
added.) The record did not establish that Thomas was asked to
work weekends and/or holidays and failed to do so. Further, the
Respondent did not produce daily schedules for 2015 which
might have shown that she did not work certain weekends and
holidays (even if there was no evidence that she declined such
assignments). Those same daily schedules could also have
shown whether other per diem CNAs failed to work week-
ends/holidays and, like or unlike Thomas, continued to receive
per diem work. Accordingly, it is appropriate to infer that
Thomas did work weekends/holidays or, even if she did not, she
was treated disparately. Green Apple Supermarket of Jamaica,
Inc., 366 NLRB No. 124 (2018) (appropriate to draw adverse in-
ference regarding disparate treatment where General Counsel
could not secure subpoenaed personnel and payroll records).
The Respondent also preferred to use per diem staff than agency
employees but continued to use agency staff after it stopped as-
signing per diem shifts to Thomas. Further, Pottinger and Flood
never had their meeting to address the alleged “problem” of per
diems failing to work weekends and holidays (suggesting that
this was not actually a problem at all). Here, the evidence failed,
in rather dramatic fashion, to show that the Respondent had any
legitimate non-discriminatory reason for ceasing the assignment
of per diem shifts to Thomas the day of the election and thereaf-
ter.
Based upon the foregoing, I find that the General Counsel es-
tablished a prima facie case that the Respondent effectively dis-
charged Thomas by discontinuing her per diem shifts because of
her union activity. Further, since the Respondent’s stated rea-
sons for discharging Thomas are pure pretext, there is no need to
conduct a mixed-motive analysis to determine if the Respondent
would have discharged her regardless of her union activities.
Parkview Lounge, LLC, 366 NLRB No. 71 (2018); K-Air Corp.,
360 NLRB 143, 144 (2014).
Reduction of Merit Wage Increases
Unilateral Change of Merit Wage Increases in Violation of
Section 8(a)(5) of the Act
The General Counsel contends that the Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally changing its
practice of granting employee wage increases in the range of 2
percent-2.5 percent depending upon the employee’s appraisal
rating. I agree.
An employer violates Section 8(a)(5) and (1) of the Act when
it unilaterally changes the “status quo” as it pertains to terms and
meeting and whether she would be assigned additional shifts but was re-
peatedly told that the meeting had not occurred. It is clear that the Re-
spondent stopped assigning Thomas per diem shifts even though she
wanted to keep working.
ATLANTICARE MGMT., LLC D/B/A PUTNAM RIDGE NURSING HOME 19
conditions of employment without first giving the union notice
and an opportunity to bargain. The status quo consists of the
terms of employment in effect on the date of the election, includ-
ing past practices that occur with “such regularity and frequency
that employees could reasonably expect the ‘practice’ to con-
tinue or reoccur on a regular and consistent basis.” E.I. Du Pont
De Nemours, 364 NLRB No. 113 (Aug. 26, 2016) (overruled on
other grounds) quoting Sunoco, Inc., 349 NLRB 240, 244
(2007). Such a practice must be one that is “automatic” or based
on a fixed formula such as to be reasonably certain “as to timing
and criteria.” State Farm Mutual Auto Insurance Co., 195
NLRB 871, 890 (1972); Post-Tribune Co., 337 NLRB 1279,
1279–1281 (2002). In the seminal Supreme Court case on post-
election unilateral changes, NLRB v. Katz, 369 U.S. 736, 756
(1962), an employer’s unilateral merit wage increases were
found unlawful for the following reason:
The company, without notice to the union, granted merit in-
creases to 20 employees out of the approximately 50 in the unit,
the increases ranging between $2 and $10. This action too must
be viewed as tantamount to an outright refusal to negotiate on
that subject, and therefore as a violation of s 8(a)(5), unless the
fact that the January raises were in line with the company’s
long-standing practice of granting quarterly or semiannual
merit reviews—in effect, were a mere continuation of the status
quo—differentiates them from the wage increases and the
changes in the sick-leave plan. We do not think it does.
Recently, the Board noted that past practice has been relied
upon in “require[ing] employers to act unilaterally—specifi-
cally, to provide wage increases and to do so without bargaining
. . . .”21 Raytheon Network Centric Systems, 365 NLRB No. 161
(Dec. 15, 2017) (emphasis in original) citing Arc Bridges, Inc.,
355 NLRB 1222 (2010); Mission Foods, 350 NLRB 336, 337
(2007); and Central Maine Morning Sentinel, 295 NLRB 376
(1989). In Raytheon, the Board addressed “what constitutes a
‘change’ requiring notice to the union and the opportunity for
bargaining prior to implementation.” Raytheon Network Centric
Systems, 365 NLRB No. 161 (2017). The Board concluded “that
the [employer’s] modifications in unit employee healthcare ben-
efits in 2013 were a continuation of its past practice of making
similar changes at the same time every year from 2001 through
2012.” Id. Since ongoing healthcare benefit modifications did
“not materially vary in kind or degree from the changes made in
prior years,” they did not constitute a “change” and could be
made unilaterally.
Here, the Respondent maintained a long-standing past prac-
tice of granting annual merit wage increases in a manner that was
based on a fixed formula. Appraisal ratings of good, very good,
and outstanding resulted in merit wage increases of 2 percent,
2.25 percent, and 2.5 percent, respectively. These wage

21 The Raytheon Board observed that it “must exercise considerable
care when interpreting Katz—where the Supreme Court described a past
practice as a defense to an allegation that an employer’s unilateral
changes violate Sec. 8(a)(5)—to mean that Sec. 8(a)(5) imposes an obli-
gation on employers to make unilateral changes, particularly since the
Act [in Sec. 8(d)] explicitly states that the duty to bargain ‘does not
increases were effective (retroactively if necessary) as of the em-
ployee’s anniversary with the company.
The Respondent does not deny that it had a practice of grant-
ing the formulaic merit wage increases described above. The
Respondent merely defends on the grounds that the merit in-
creases were suspended for 3 years by the prior owner (before
2010) and replaced in certain years (2013/2015) with higher
wage adjustments not tied to a merit review. The Respondent’s
January 15, 2013 memorandum stated, in part, as follows:
We instituted a policy to review all of our employees on an an-
nual basis and provide merit increases. We realized that these
increases were not enough, and failed to address the decisions
by the prior ownership not to provide increases for three (3)
years.
Likewise, in 2015, CNA wages were increased to a minimum
of $13.50 per hour (a larger than normal wage adjustment) to
make that classification more competitive with other healthcare
institutions.
I do not find the facts relied upon by the Respondent to be
exculpatory. That a prior owner suspended the merit wage in-
creases for 3 years prior to 2010 does not change the fact that the
policy was adopted by current ownership and in place for a long
period of time. Further, the isolated wage adjustments in 2013
(all employees) and 2015 (just CNAs) do not reflect the absence
of a unilateral “change.” Such higher than usual wage increases
to correct a perceived deficiency in the Respondent’s competi-
tiveness in attracting personnel does not alter the fact that it
maintained as a baseline a far more regular and long-standing
practice of granting merit wage increases upon a fixed formula
tied to appraisal ratings. Certainly, the Respondent was not re-
quired to continue granting wage adjustments similar to the
raises in 2013/2015 since those increases did not reflect a regular
practice. However, as of December 2015, employees would rea-
sonably conclude that the Respondent’s practice of granting
merit wage increases would continue and it was obligated to
maintain this regular and consistent practice as part of the status
quo.
The Respondent also contends that it lawfully implemented its
January 6, 2017 proposal for the reduction of merit wage in-
creases upon a good faith impasse. This argument fails as well.
The Respondent implemented the change without first notifying
and providing the Union an opportunity to bargain. It is well
settled that an employer violates Section 8(a)(5) and (1) of the
Act by implementing a change as a fait accompli before offering
to bargain over it. Allied Products Corp., 218 NLRB 1246
(1975) (unilateral suspension of merit review violated the Act
despite subsequent bargaining over the subject). The Respond-
ent thereby “obstruct[s] meaningful bargaining” and cannot re-
medially cure that obstruction by bargaining over the same sub-
ject after the fact. Id. See also Michigan Consolidated Gas Co.,
compel either party to agree to a proposal or require the making of a
concession.” Here, however, the Respondent changed a long static for-
mula before making any proposal to change it. While I take note of Ray-
theon’s warning and have contemplated the matter with considerable
care, in my opinion, extent law demands the finding of a violation.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
261 NLRB 555, 562 (1982). The Union rightfully refused to con-
sider the Respondent’s proposal change on the grounds that an
unfair labor practice charge was pending regarding the change,
which had already been unilaterally implemented. In this con-
text, the Respondent could not reach good-faith impasse on the
subject until it rescinded the unlawful change and posted a cor-
rective notice to employees for a designated period of time.22 See
Wayron, LLC, 364 NLRB No. 60 (2016) (impasse not reached
where employer engaged in unfair labor practices that substan-
tially effected the course of bargaining and caused the deadlock).
Based on the foregoing, I find that the Respondent violated
Section 8(a)(5) and (1) of the Act by reducing the merit wage
increases of employees.
Discriminatory Reduction of Merit Wage Increases in Violation
of Section 8(a)(3) of the Act
The General Counsel contends that the Respondent’s reduc-
tion of merit wage increases violated Section 8(a)(3) and (1) of
the Act as well as Section 8(a)(5) and (1). I agree.
The Respondent admits that it had no plans to reduce em-
ployee compensation until, over its opposition, employees
elected the Union as their bargaining representative. In fact, the
Respondent admits that, before the election, it was contemplat-
ing an increase in employee compensation. Nevertheless,
shortly after the vote, the Respondent reduced its long-standing
formula of providing merit wage increases in the range of 2 per-
cent-2.5 percent to a range of 1.25 percent-1.75 percent. The
Respondent has offered no reason other than the Union’s election
as an explanation for this change.23 I find the timing of the Re-
spondent’s action, absent any alternative trigger or reason, suffi-
cient to establish a prima facie case that the Respondent reduced
employees’ annual merit pay raises because they elected the Un-
ion as their bargaining representative. See Dixie Broadcasting
Co., 150 NLRB 1054, 1076 (1965).
In finding that the General Counsel established a prima facie
case, I also rely on the Respondent’s other contemporaneous un-
fair labor practices. The Respondent discharged a known union
supporter and unlawfully restricted union business on company
property or work hours. By these actions, the Respondent
demonstrated animus toward employees’ union activity and a

22 As a general rule, an employer is also forbidden from engaging in
“piecemeal bargaining” by implementing an individual wage proposal in
the context of bargaining for an initial contract without reaching overall
contractual impasse. T-Mobile USA, Inc., 365 NLRB No. 23 (Feb. 2,
2017) quoting Litton Financial Printing Division v. NLRB, 501 U.S. 190,
198 (1991) (“it is difficult to bargain, if, during negotiations, an employer
is free to alter the very terms and conditions that are the subject of nego-
tiations”). See also Winn-Dixie Stores, 243 NLRB 972, 984 (1979).
Conversely, an employer may be entitled to unilaterally implement an
annual wage change upon impasse or the absence of a request to bargain
if the change concerns “a discrete event, . . . that simply happen[ed] to
occur contract negotiations [were] in progress . . . .” TXU Electric Co.,
343 NLRB 1404, 1405 (2004). I need not reach this issue because the
Respondent proposed the change in question a year after it was imple-
mented and during the pendency of an unfair labor practice regarding the
same.
23 I do not find it exculpatory that the Respondent gave one employee
a merit wage increase of 2.5 percent after the election pursuant to the pre-
willingness to obstruct and discriminate against them on that ba-
sis.
Interestingly, as discussed at greater length below in the sec-
tion on alleged bad-faith bargaining, the Respondent’s modifica-
tion of its formula for merit wage increases would not neces-
sarily (at least initially) have resulted in a reduction of employ-
ees’ total wage increases if it were combined with the wage in-
creases the Respondent proposed in contract negotiations. Thus,
the Respondent proposed a 1 percent wage increase following
contract ratification and reserved the right to continue granting
merit wage increases. On March 6, 2017, for example, house-
keeper Roanda Alama-Larretta received an evaluation of “out-
standing” and a merit wage increase of $0.19 or 1.75 percent of
$10.84 per hour. If Alma-Larretta also received a $0.11 (1 per-
cent of $10.84 per hour) contractual wage adjustment in 2017
pursuant to the Respondent’s proposal, her total increase for the
year would have been $0.30 per hour or 2.75 percent. A total
annual increase of 2.75 percent would have been higher than the
$0.27 or 2.5 percent increase she would have received under the
Respondent’s old merit wage formula.
Accordingly, one might speculate that the Respondent ad-
justed its formula for granting merit pay increases in order to en-
sure that employees would continue to receive wage increases
comparable to what they received in the past (not dramatically
higher) if the Union accepted the Respondent’s wage proposal.24
However, speculation does not constitute a defense and I need
not decide the Section 8(a)(3) case on the basis of a hypothetical.
The Respondent offered no explanation, including this one, for
changing the percentages of its merit pay increases shortly after
employees voted for union representation. Having found a prima
facie case, whether the allegation is analyzed under Wright Line
or Great Dane, the Respondent failed to offer a satisfactory ex-
planation why its conduct should be considered a valid business
decision and/or not discriminatory.
Based upon the foregoing, I find that the Respondent violated
Section 8(a)(3) and (1) of the Act by reducing its formula for
providing annual merit wage increases because employees
elected the Union as their bargaining representative.
Information Requests
The General Counsel contends that the Respondent violated
2016 formula. The Respondent still implemented the change close in
time to the election. It is much more telling of the Respondent’s discrim-
inatory intent that it contemplated an increase of employee compensation
before the election and reduced merit wage increases after the election
with no explanation or significant intervening event.
24 In this hypothetical scenario, the Respondent still arguably imple-
mented the change because employees unionized, but perhaps did so less
as a vehicle for punishing employees and more as a way to maintain
comparable wages in anticipation of a prospective contract. If the Re-
spondent had articulated this explanation, the proper standard for evalu-
ating it might be Great Dane Trailers, 388 U.S. 26, 33–34 (1967) instead
of Wright Line (i.e., to what extent the Respondent’s action had an impact
on Section 7 rights and, if comparatively slight, whether the Respondent
had a “legitimate and substantial business justification” for it). However,
the Respondent has not articulated, in this case, a business justification
for its conduct.
ATLANTICARE MGMT., LLC D/B/A PUTNAM RIDGE NURSING HOME 21
Section 8(a)(5) and (1) of the Act by refusing to furnish certain
information and unreasonably denying the production of other
information. More specifically, the General Counsel contends
that the Respondent failed to produce information in response to
the April 19 request and paragraphs 1, 2(i), 3, 6–8 (in part), 9,
10, 12, 16, and 17(b) through (k) of the January 6 request. The
general Counsel further contends that the Respondent unreason-
ably delayed the production of information in response to para-
graphs 2(d), 2(f), 3, 5–8, and 17(a) of the January 6 request.25 I
agree with the bulk of the General Counsel’s contentions, except
paragraph 16 of the January 16 request.
An employer must provide requested information that is “pre-
sumptively relevant” to the union’s performance of its role as
collective-bargaining representative where the union seeks infor-
mation concerning wages, hours, and other terms and conditions
of employment of unit employees. Southern California Gas Co.,
342 NLRB 613, 614 (2004). Conversely, a request for infor-
mation pertaining to matters outside the bargaining unit is not
presumptively relevant and relevance must be established by the
requesting party. However, even where the requested infor-
mation is not presumptively relevant, the burden to show rele-
vance is not exceptionally heavy. Rather, the Board has adopted
a liberal discovery-type standard. Columbia College Chicago,
363 NLRB No. 154 (2016); A-1 Door & Building Solutions, 356
NLRB 499, 500 (2011); Leland Stanford Junior University, 262
NLRB 136, 139 (1982) enfd. 715 F.2d 473 (9th Cir. 1983); Shop-
pers Food Warehouse Corp., 315 NLRB 258, 259 (1994).
The Respondent does not deny that it failed to produce certain
information or that it delayed the production of other information
for nearly a year after it was requested. The Respondent also
failed to offer any explanation or excuse for the same. The Re-
spondent merely contends that it produced some information and
the Union was able to make comprehensive proposals without
the rest. However, neither fact constitutes a legal defense. It is
well settled that an employer does not satisfy its obligation to
furnish all relevant information by providing some. Marathon
Petroleum Co., 366 NLRB No. 125 (2018). Further, that the Un-
ion did its best to negotiate in the absence of relevant information
does not mean it was unhampered in doing so. Hansen and
Chinea both testified, and advised Jasinski during negotiations,
that the Union was impeded in its ability to move farther in its
proposals because the Respondent failed to furnish information
(such as payroll information which would have allowed the Un-
ion to evaluate the Respondent’s claim that the Union’s proposal
would increase labor costs by more than 70 percent). See E.I.
Du Pont De Nemours & Co., 346 NLRB 553, 557 (2006) (Un-
ion’s request for the hard costs of labor and benefits was relevant
to its ability to assess employer’s assertion that such costs con-
stituted 40 percent of its labor costs).

25 The amended complaint alleged that the Respondent merely de-
layed the production of information in response to paragraphs 6–8 of the
January 6 request, and did not allege that the Respondent failed to pro-
duce some of the information altogether. In its post-hearing brief, the
General Counsel moved to amend the complaint to include an allegation
that certain information was not produced in response to paragraphs 6–
8. I grant the General Counsel’s motion as the Respondent’s response
(or lack thereof) to the January 6 request was fully litigated and the issue
(i.e., whether certain information was not produced at all) is closely
The vast majority of the information requested by the Union
on January 6 and April 19, 2016 was presumptively relevant as
it pertained to the wages, hours, and other terms and conditions
of employment of unit employees. Paragraphs 7 and 12 of the
January 6 request and, in part, the April 19, 2016 request con-
cerned the Respondent’s use of non-unit agency employees.
Chinea and Hansen testified that the Union sought information
regarding the Respondent’s use of agency employees to deter-
mine whether and to what extent that money could be funneled
into increased work and pay for unit employees.26 The Board
has often found such reasoning to be a sound basis for ordering
production of information of the type the Union sought in this
case. See e.g., Castle Hill Health Care Center, 355 NLRB 1156,
1182 (2010).
Paragraph 16 of the January 6 request sought cost reports for
reimbursement from Medicaid or any other public entity or pro-
gram for the years 2013, 2014, and 2015. The Respondent pro-
vided the Union with the 2014 Medicaid cost report but did not
provide the reports for 2013 and 2015. Such reports constitute
financial information and, as such, are not presumptively rele-
vant. STB Investors, Ltd., 326 NLRB 1465, fn. 2 (1998) citing
Dexter Fastener Technologies, 321 NLRB 612, 613, fn. 2
(1996). Unions have successfully demonstrated the relevance of
cost reports for Medicaid reimbursement when employers have
made “statements during negotiations regarding the need for
layoffs to remain financially healthy or the uncertainty about
their sources of revenues.” STB Investors, Ltd., 326 NLRB 1465,
fn. 2 (1998) citing Taylor Hospital, 317 NLRB 991 (1995) and
Orthodox Jewish Home for the Aged, 314 NLRB 1006 (1994).
Here, however, the Union made no showing of relevance associ-
ated with the substance of negotiations. Rather, its interest in the
Respondent’s funding sources has not been justified beyond
mere curiosity. Accordingly, I will not order the Respondent to
produce cost reports it has not already provided to the Union.
Based upon the foregoing, I find that the Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to provide infor-
mation in response to the April 19 request and paragraphs 1, 2(i),
3, 6–8 (in part), 9, 10, 12, and 17(b) through (k) of the January 6
request. I also find that the Respondent violated Section 8(a)(5)
and (1) of the Act by unreasonably delaying the production of
information in response to paragraphs 2(d), 2(f), 5–8, and
17(a)of the January 6 request. I do not find that the Respondent
unlawfully refused to produce documents in response to para-
graph 16 of the January 6 request.
Refusal to Meet and Bargain at Reasonable Times
The General Counsel contends that the Respondent failed to
meet with the Union at reasonable times from August 11, 2017
to December 2017. I agree, in part, as discussed below.
connected to the allegation that the production of information was unrea-
sonably delayed. See General Drivers, Warehousemen & Helpers, 365
NLRB No. 115 (Dec. 15, 2017) citing Graymont PA, Inc., 364 NLRB
No. 37, slip op. 1, 6–7 (2016), enf. denied on other grounds Nos. 16-1249
& 16-1288 (D.C. Cir. March 3, 2017), and Pergament United Sales, Inc.,
296 NLRB 333, 334 (1989).
26 As noted above, the Respondent admits that it is more cost effective
to use its own employees than agency employees.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Jasinski was in a severe car accident on November 5, 2017
and hospitalized in the intensive care for 5 days with multiple
broken bones and a lacerated spleen. Nevertheless, he scheduled
and attended a bargaining session on December 21, 2017. There-
fore, I reject the General Counsel’s contention that there was an
unexcused delay in negotiations from November 5 to December
21, 2017.
Between August 11 and October 27, 2017, the Union emailed
the Respondent five times proposing bargaining dates on Sep-
tember 18-19, October 24–26, November 9, and November 13,
2017. The Respondent did not respond until November 16,
2017, when it notified the Union of Jasinski’s car accident.
Jasinski attributed the parties’ failure to meet in September and
October to Jewish holidays (since Greenberger is religiously ob-
servant) and the busy work schedules of the negotiators (Jasinski
and Chinea). However, the Respondent did not provide any spe-
cific examples of work conflicts and I take administrative notice
that none of the Union’s proposed dates fell on Jewish holidays.
See Williams v. Weaver, 2006 WL 2794417, at *5 (N.D.N.Y.
Sept. 26, 2006) (appropriate to take judicial notice of holidays,
including two Islamic holidays in 2003) (citations omitted). Of
course, even if the parties did have certain work conflicts, it
would not explain the Respondent’s failure to respond to the Un-
ion’s letters and proposed dates. The Respondent’s failure for 3
months to respond to the Union’s requests for bargaining dates
in September and October is sufficient to warrant a finding that
the Respondent unlawfully failed to meet with the Union at rea-
sonable times during this period. See McCarthy Construction
Co., 355 NLRB 50 (2010) adopted by three-member panel in 355
NLRB 465 (2010) (employer unlawfully failed to respond to un-
ion’s request for bargaining dates for 2-1/2 months).
Based upon the foregoing, I find that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing to meet with the
Union at reasonable times between August 11 and November 4,
2017.
Overall Bad-Faith Bargaining
The General Counsel contends that the Respondent violated
Section 8(a)(5) and (1) of the Act by engaging in overall bad
faith surface bargaining. I do not agree and will dismiss the al-
legation. Since I do not find a violation on the merits, I need not
address the Respondent’s procedural contention that the General
Counsel should not have been allowed to amend the complaint
at trial to include the allegation.
Section 8(d) of the Act defines the duty to bargain collectively
as “the performance of the mutual obligation of the employer and
the representative of the employees to meet at reasonable times
and confer in good faith with respect to wages, hours, and other
terms and conditions of employment . . . but such obligation does
not compel either party to agree to a proposal or require the mak-
ing of a concession.” “Good-faith bargaining presupposes a de-
sire to reach ultimate agreement, to enter into a collective bar-
gaining contract’” while surface bargaining presupposes a desire
to do the opposite. George Warehouse, 349 NLRB 870, 871

27 The General Counsel and Union seem to assume that the merit
wage increases would be eliminated. While the Respondent’s proposal
did indicate that merit wage increases would be discretionary, they were
always discretionary (pre-election) and given anyway. Further, on the
(2007). “A party is entitled to stand firm on a position if he rea-
sonably believes that it is fair and proper or that he has sufficient
bargaining strength to force the other party to agree.” Id. quoting
Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984). Thus,
the Board does not restrict a party from “engaging in hard but
lawful bargaining to achieve a contract that it considers desirable
or is unlawfully endeavoring to frustrate the possibility of arriv-
ing at any agreement. Id. quoting Public Service Co., 334 NLRB
487, 487 (2001). The Board examines “the totality of the em-
ployer’s conduct” in determining whether it has demonstrated
overall bad faith and engaged in surface barging. Logemann
Brothers Co., 298 NLRB 1018, 1020 (1990).
The Board has held that the presentation of predictably unac-
ceptable proposals without reasonable justification suggests bad
faith. Thus, the “‘failure to define, explain or advocate [a] posi-
tion’ during bargaining should be considered as evidence of a
party’s lack of good faith.” Apogee Retail, NY, LLC, 363 NLRB
No. 122, fn. 3 (2016) quoting Blue Jeans Corp., 177 NLRB 198,
206 (1969) enfd. sub nom. However, the absence of an explana-
tion for a party’s position will not establish surface bargaining
where the party’s failure to communicate and overall conduct do
not establish an intention to frustrate agreement. Id.
Contrary to the assertion of the General Counsel, I do not find
that the Respondent necessarily proposed to reduce the wages of
employees. As noted above, a combination of the Respondent’s
contractual wage adjustments and its modified practice of grant-
ing merit wage increases (0 percent-1.75 percent) would not con-
stitute a wage reduction.27 Rather, employees would generally
receive, in total, slightly higher increases (about 0.25 percent
higher) than they would otherwise have received under the pre-
2016 formula for merit wage increases (0 percent-2.5 percent).
Further, the Respondent’s proposal of certain wage increases not
tied to discretionary appraisals has the advantage of ensuring that
all unit employees receive, at least, a 1 percent-1.5 percent in-
crease (depending on the year) even if their appraisal ratings are
below “good.” Finally, about 21 housekeepers, laundry aides,
and dietary aides would receive wage increases under to the Re-
spondent’s proposed minimum rates.
It is also unclear to me whether the Respondent’s proposal, if
accepted as a package, would leave employees worse off than
they were before unionizing. First, the noneconomic items pro-
posed by the Respondent did have some (admittedly unquantifi-
able) value. It would certainly be of significant value to employ-
ees if Hansen was correct in her belief that the Respondent’s pro-
posal prohibited suspensions and discharges without just cause.
Second, while the Respondent admittedly proposed a reduction
in certain benefits, it is not clear whether those reductions would
be offset by the potential for wage increases. The General Coun-
sel and Union might argue that the Respondent’s failure to pro-
duce subpoenaed records and information during negotiations ef-
fectively limited their ability to cost the Respondent’s proposals.
However, neither the General Counsel nor the Union attempted
to establish that the Respondent’s economic proposal would
two occasions in 2013 and 2015 when wage adjustments were given in
lieu of merit wage increases, the wage adjustments were significantly
higher than the standard merit wage increases.
ATLANTICARE MGMT., LLC D/B/A PUTNAM RIDGE NURSING HOME 23
result in a net economic loss with the information that was avail-
able to them and requests for adverse inferences. Rather, the
General Counsel and Union merely listed the proposals which
were worse than current terms and included, incorrectly in my
opinion, the wage proposal discussed above.
Finally, and perhaps most importantly, I do not believe the
Respondent’s proposals could be considered a significant indicia
of surface bargaining even if it was determined to be worse than
employees’ current terms and conditions of employment. I un-
derstood Jasinski to explain that the Respondent felt compelled
to start low in its proposal because the Union started so high in
its demands. Chinea testified that it is not uncommon for bar-
gaining parties to start with extreme positions and meet in the
middle. Chinea found it peculiar that the Respondent would start
with a less favorable proposal than employees’ current terms, but
one would actually expect an employer to start below current
terms if it was that party’s intent to work up to (and maintain) its
current labor costs. As noted above, it is not unlawful for an
employer to attempt to maintain its current structure of compen-
sation if it has the bargaining power to do so. George Ware-
house, 349 NLRB 870, 871 (2007).
Admittedly, the situation here suggests a potential oddity in
negotiations. Although not necessarily proved to my satisfac-
tion, the Respondent may have proposed an economic package
that was worse than the employees’ current compensation even
though the Respondent itself, to remain competitive, was con-
templating an increase in compensation before the election.
Thus, the Respondent arguably presented a proposal that it—
much less the Union and employees—did not want to be imple-
mented. However, this is not necessarily inconsistent with a
strategy of pursuing what would ultimately be a final agreement
in between the parties’ initial proposals. Neither party declared
impasse and both parties indicated an ability to move farther on
their proposals. They were just very slow in doing so.
In failing to find a violation of surface bargaining, I do not
mean to suggest that the Respondent’s conduct did not adversely
impact the Union’s ability to bargain effectively. The Respond-
ent refused to produce, for example, information that might have
undercut its claim that the Union’s proposal was expensive or
show that resources were available to be moved from agency em-
ployees to unit employees. Kitsap Tenant Support Services, Inc.,
366 NLRB No. 98 (2018). The Respondent’s discharge of a Un-
ion supporter could intimidate employees and undermine em-
ployee solidarity in support of the Union, including their willing-
ness to strike. Angle v. Sacks, 382 F.2d 655, 660 (10th Cir.
1967); Pascarell v. Vibra Screw Inc., 904 F.2d 874, 880 (3d Cir.
1990). The Respondent’s unilateral reduction of its merit wage
formula could cause employees to view the Union as weak and
undermine the Union’s position as the stake holder in defending
a benefit already in place (a position particularly useful if nego-
tiations, as here, are protracted). Pye v. Longy School of Music,

28 While an argument can be made that such a strategy should be
considered overall bad faith bargaining, I have not found support for the
same in Board precedent.
29 The Union claims the Respondent delayed bargaining over eco-
nomics and this suggests bad faith. I do not agree with the Union’s fac-
tual assertion. The parties agreed to start with noneconomic subjects and
the Union did not present economic proposals for this particular facility
759 F. Supp. 2d 153, 168 (D. Mass. 2011). The Respondent’s
delay in bargaining could also cause employees to grow frus-
trated and impatient in their willingness to stand firm for a favor-
able contract. Amory Garment Co., Inc., 80 NLRB 182, 193
(1948). In sum, it is entirely possible that the Respondent pur-
posely pursued an unlawful strategy of seeking a more favorable
agreement than it might otherwise obtain if it played by the
rules.28 However, it is far less clear to me and not established by
a preponderance of the evidence that the Respondent sought to
avoid reaching a contract and, therefore, engaged in overall bad
faith bargaining.
In my opinion, this case does not have a decisive factual basis
for finding that the Respondent did not intend to reach agree-
ment. Regressive bargaining in which an employer retreats from
proposals when the parties are getting close to agreement is par-
ticularly suggestive of bad faith since it shows a specific intent
to evade a contract. See e.g., Kitsap Tenant Support Services,
Inc., 366 NLRB No. 98 (2018). Proposals that a union waive its
right to bargain over key terms during the life of the contract are
particularly suggestive of bad faith since it would require the un-
ion “to cede substantially all of its representational function, and
would have so damaged the Union’s ability to function as the
employees’ bargaining representative that the Respondent could
not seriously have expected meaningful collective bargaining.”
Id. quoting Public Service Co. of Oklahoma (PSO), 334 NLRB
487, 489 (2001). The General Counsel and Union believe that
the Respondent’s proposals were so predictably objectionable as
be a similar lynch pin in the finding of overall bad faith, but I am
not convinced for the reasons stated above.29
CONCLUSIONS OF LAW
1. The Respondent, Atlanticare Management LLC d/b/a Put-
nam Ridge Nursing Home, is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The following bargaining unit of the Respondent’s employ-
ees is appropriate:
Included: All full-time and regular part-time employees, in-
cluding LPNs, CNAs, receptionists, unit secretaries, dietary
aides, housekeeping aides, rehab aides, rehab techs, restorative
aides, laundry aides, maintenance workers, activities
leads/aides, and hospitality aides, including those per diem em-
ployees in the unit who have worked an average of four (4)
hours or more per week during the 13 weeks immediately pre-
ceding the eligibility date for the election
Excluded: All other employees, all employees in the therapy
department, RNs, cooks, professional employees, office cleri-
cal employees, guards and supervisors as defined in the Act.
3. The Respondent engaged in an unfair labor practice within
the meaning of Section 8(a)(1) of the Act by promulgating and
maintaining an overly broad rule prohibiting employees from
until September 12, 2016. The Union demanded bargaining over eco-
nomics in about October 2016 and the Respondent agreed. The Re-
spondent submitted economic proposals the following month. The Un-
ion also claims that the Respondent refused to “bargain altogether” by
not moving from its previous proposal during the January 10, 2017 bar-
gaining session. However, the failure to move does not equate to a fail-
ure to bargain.
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
engaging in union business on company property or during work
hours.
4. The Respondent engaged in the following unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the
Act:
(a) Discharging Catherine Thomas by ceasing to assign her
per diem shifts because of her union activity.
(b) Reducing the merit wage increases of employees because
they elected the Union, 1199 SEIU United Healthcare Workers
East, as their exclusive collective-bargaining representative.
5. The Respondent engaged in the following unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the
Act:
(a) Unilaterally reducing the annual merit wage increases of
unit employees without first notifying and offering to bargain
with the Union.
(b) Failing to provide the Union with requested information
that is relevant and necessary to conduct negotiations or other-
wise perform its duties as the exclusive collective-bargaining
representative of unit employees.
(c) Unreasonably delaying the production to the Union of re-
quested information that is relevant and necessary to conduct ne-
gotiations or otherwise perform its duties as the exclusive collec-
tive-bargaining representative of unit employees.
(d) Failing to meet and bargain with the Union at reasonable
times.
6. The unfair labor practices committed by the Respondent
affect Commerce within the meaning of Section 2(6) and (7) of
the Act.
7. The Respondent has not otherwise violated the Act by
promulgating and maintaining a rule against harassment and
spreading false rumors, failing to produce cost reports for reim-
bursement from Medicaid, and engaging in overall bad faith sur-
face bargaining.
REMEDY
Having found that the Respondents has engaged in certain un-
fair labor practices, I find that they must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent, having unlawfully discharged and ceased as-
signing per diem shifts to Catherine Thomas, must offer her re-
instatement to her former job or if her job no longer exists, to a
substantially equivalent position without prejudice to her senior-
ity or any other rights or privileges enjoyed.
The Respondent shall make Thomas whole for any loss of
earnings and other benefits suffered as a result of the discrimina-
tion against her. The make whole remedy shall be computed in
accordance with F.W. Woolworth Co., 90 NLRB 289 (1950),
with interest at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). In accordance with King
Scoopers, Inc., 364 NLRB No. 93 (2016), the Respondent shall
compensate Thomas for her search-for-work and interim em-
ployment expenses regardless of whether those expenses exceed
her interim earnings. Search-for-work and interim employment
expenses shall be calculated separately from taxable net back-
pay, with interest at the rate prescribed in New Horizons, supra,
and compounded daily as prescribed in Kentucky River Medical
Center, supra.
The Respondent shall make employees whole for loss of earn-
ings or other benefits suffered as a result of the unilateral and
discriminatory reduction of their annual merit wage increases.
This backpay shall be calculated in accordance with Ogle Pro-
tection Service, 183 NLRB 682 (1970), instead of F.W. Wool-
worth Co., 90 NLRB 289 (1950), with daily compounded inter-
est. See Community Health Services, Inc., 361 NLRB 333
(2014) (interim earnings should not be deducted in applying the
Ogle Protection Service backpay formula when the employment
of employees is not severed). The Respondent will also be or-
dered to rescind its new formula for proving annual merit wage
increases and reinstate the old formula.
In accordance with Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB 101 (2014), the Respondent shall compen-
sate employees for the adverse tax consequences, if any, of re-
ceiving a lump sum backpay award, and, in accordance with Ad-
voServ of New Jersey, Inc., 363 NLRB No. 143 (2016), and the
Respondent shall, within 21 days of the date the amount of back-
pay is fixed either by agreement or Board order, file with the
Regional Director for Region 2 a report allocating employees’
backpay to the appropriate calendar year. The Regional Director
will then assume responsibility for transmission of the report to
the Social Security Administration at the appropriate time and in
the appropriate manner.
The Respondent will be required to remove from its files any
reference to the unlawful discharge of Thomas and notify her in
writing that her unlawful discharge will not be used against her
in any way.
The Respondent will be required to rescind the rule prohibit-
ing employees from engaging in union business on company
time or during work hours.
The Respondent shall be ordered to post the notice attached
hereto as “Appendix.”
I will not impose the extraordinary remedies of a bargaining
schedule, bargaining expenses, and/or a make whole remedy for
negotiators. In Unbelievable, Inc., 318 NLRB 857, 859 (1995),
the Board confirmed that it will rely on standard bargaining or-
ders “to remedy the vast majority of bad-faith bargaining viola-
tions” as “such orders, accompanied by the usual cease-and-de-
sist order and the posting of a notice, will suffice to induce a
respondent to fulfill its statutory obligations.” However, an em-
ployer’s dilatory tactics may require as part of the remedy a bar-
gaining schedule for the parties to meet and bargaining on a reg-
ular and timely basis. UPS Supply Chain Solutions, Inc., 366
NLRB No. 111 (2108). Further, an order may require the reim-
bursement of union negotiation expenses “[i]n cases of unusually
aggravated misconduct . . . where it may fairly be said that a re-
spondent’s substantial unfair labor practices have infected the
core of a bargaining process to such an extent that their effect
cannot be eliminated by the application of standard remedies[.]’”
Id. quoting NLRB v. Gissel Packaging Co., 395 U.S. 575, 614
(1969). In Monmouth Care Center, 354 NLRB 11, 69 (2009)
adopted by three-member panel in 356 NLRB 152 (2010), the
Judge observed that negotiation expenses were not appropriate
since “there is no surface bargaining allegation
. . . .”
ATLANTICARE MGMT., LLC D/B/A PUTNAM RIDGE NURSING HOME 25
Given that I have found no merit to the surface bargaining al-
legation, I will not order the Respondent to pay bargaining ex-
penses, including a make whole remedy for employee negotia-
tors. Although the Respondent committed serious unfair labor
practices, they were not so aggravated or egregious as to warrant
an order of bargaining expenses under current law. See Mon-
mouth Care Center, 354 NLRB 11, 69 (2009).
Likewise, I will not include in my order a bargaining schedule.
See Universal Fuel, Inc., 358 NLRB 1504 (2012); McCarthy
Construction Co., 355 NLRB 50, 52 (2010) adopted by three-
member panel in 355 NLRB 365 (2010); Leavenworth Times,
234 NLRB 649, fn. 2 (1978). The parties met 13 times to bargain
on a near monthly basis. The Respondent did violate the Act by
failing to respond to the Union’s proposals of dates in Septem-
ber/October 2017, but subsequently met with the Union on De-
cember 21, 2017 (not long after Jasinski was injured in a serious
car accident). Further, in my opinion, “the Union could have
been more assertive in urging [the Respondent] to meet on a . . .
more frequent basis.” McCarthy Construction Co., 355 NLRB
at 53. The Respondent did engage a dilatory tactic by failing to
produce certain information at all and failing to produce other
information on a timely basis. However, the Respondent will be
ordered to promptly produce all outstanding information and it
is not clear that the failure to produce information kept the parties
from the bargaining table. Rather, it impeded the parties’ ability
to move and be productive once they were there. Accordingly,
based upon the foregoing, I will not order the bargaining sched-
ule requested by the General Counsel.
I will order a Mar-Jac remedy requiring the Respondent to
extend and honor the Union’s certification for an additional pe-
riod of 1 year. McCarthy Construction Co., 355 NLRB at 53
citing Mar-Jac Poultry Co., 136 NLRB 785, 786 (1962). Alt-
hough the Board reduced the Judge’s Mar-Jac remedy in
McCarthy from 12 to 9 months, the unfair labor practices at issue
here are more severe and, in particular, the Respondent’s failure
to furnish information (most of which is still outstanding) posed
a greater impediment to fruitful negotiations. See Northwest
Graphics, Inc., 342 NLRB 1288, 1289 (2004).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended30
ORDER
The Respondent, Atlanticare Management LLC d/b/a Putnam
Ridge Nursing Home, Brewster, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging, ceasing the assignment of per diem shifts,
reducing the merit wage increases, and/or otherwise discriminat-
ing against employees for engaging in protected union activity
or electing the Union, 1199 SEIU United Healthcare Workers
East, or any other union, as their exclusive collective-bargaining
representative.
(b) Unilaterally reducing the merit wage increases of unit em-
ployees without first notifying and offering to bargain with the

30 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Union. The appropriate bargaining unit consists of the following
employees:
Included: All full-time and regular part-time employees, in-
cluding LPNs, CNAs, receptionists, unit secretaries, dietary
aides, housekeeping aides, rehab aides, rehab techs, restorative
aides, laundry aides, maintenance workers, activities
leads/aides, and hospitality aides, including those per diem em-
ployees in the unit who have worked an average of four (4)
hours or more per week during the 13 weeks immediately pre-
ceding the eligibility date for the election
Excluded: All other employees, all employees in the therapy
department, RNs, cooks, professional employees, office cleri-
cal employees, guards and supervisors as defined in the Act.
(c) Failing to bargain in good faith with the Union as the ex-
clusive collective-bargaining representative of unit employees
by failing to meet and bargain with the Union at reasonable
times.
(d) Failing to bargain in good faith with the Union by failing
to produce and delaying the production of requested information
that is relevant and necessary to the Union’s functioning as the
exclusive collective-bargaining representative of unit employ-
ees.
(e) Promulgating and maintaining an overly broad rule which
prohibits employees from engaging in union business on com-
pany property or during work hours.
(f) In any like or related manner interfering, restraining, 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 effectu-
ate the policies of the Act.
(a) Rescind its overly broad rule, promulgated on April 15,
2016, prohibiting employees from engaging in union business on
company property or during work hours.
(b) Rescind the changes made to unit employees’ annual merit
wage increases and reinstate the old formula for granting such
merit wage increases.
(c) Upon the Union’s request, bargain in good-faith with the
Union at reasonable times as the exclusive collective-bargaining
representative of employees in the bargaining unit.
(d) Furnish to the Union in a prompt and timely manner the
information requested by the Union on January 6 and April 19,
2016, with the exception of cost reports for reimbursement from
Medicaid or any other public entity or program for the years
2013 and 2015.
(e) Within 14 days from the date of this Order, offer Thomas
reinstatement to her former position or, if her position no longer
exists, to a substantially equivalent position, without prejudice to
her seniority or any other rights or privileges previously enjoyed.
(f) Make Thomas whole for any loss of earnings and other
benefits suffered as a result of the discrimination against her in
the manner set forth in the remedy section of this decision.
(g) Compensate Thomas for search-for-work and interim em-
ployment expenses in the manner set forth in the remedy section
of this decision.
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(h) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Thomas, and
within 3 days thereafter, notify Thomas in writing that this has
been done and the discharge will not be used against her in any
way.
(i) Make unit employees whole for any loss of earnings and
other benefits suffered as a result of the unilateral and discrimi-
natory reduction of their annual merit wage increases in the man-
ner set forth in the remedy section of this decision.
(j) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(k) Within 14 days after service by the Region, post at its
Brewster, New York facility copies of the attached notice
marked “Appendix.”31 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspic-
uous places, including all places where notices to employees are
customarily posted. In addition to physical posting of paper no-
tices, notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has gone out
of business or closed, or are otherwise prevented from posting
the notice at the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by the Respondent at any time since December 4, 2016.
(l) Within 21 days after service by the Region, file with the
Regional Director for Region 2 a sworn certification of a respon-
sible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar
as it alleges that the Respondent unlawfully promulgated and
maintained a rule against harassment and spreading false rumors,
failed to produce to the Union the cost reports for reimbursement
from Medicaid, engaged in overall bad faith surface bargaining,
or other allegations not specifically found herein.
Dated, Washington, D.C. December 12, 2018
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

31 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge you or cease assigning you per diem
shifts because you engaged in union activities.
WE WILL NOT reduce your annual merit wage increases be-
cause you elected 1199 SEIU United Healthcare Workers East
(Union) or any other union as your exclusive collective-bargain-
ing representative.
WE WILL NOT unilaterally reduce your annual merit wage in-
creases, or any other terms and conditions of your employment,
without first notifying and offering to bargain with the Union as
the exclusive collective-bargaining representative of bargaining
unit employees. The appropriate bargaining unit consists of the
following employees:
Included: All full-time and regular part-time employees, in-
cluding LPNs, CNAs, receptionists, unit secretaries, dietary
aides, housekeeping aides, rehab aides, rehab techs, restorative
aides, laundry aides, maintenance workers, activities
leads/aides, and hospitality aides, including those per diem em-
ployees in the unit who have worked an average of four (4)
hours or more per week during the 13 weeks immediately pre-
ceding the eligibility date for the election
Excluded: All other employees, all employees in the therapy
department, RNs, cooks, professional employees, office cleri-
cal employees, guards and supervisors as defined in the Act.
WE WILL NOT fail to bargain in good faith with the Union by
failing to furnish certain information and delaying the production
of other information that was requested by the Union and was
relevant and necessary to the Union’s performance of its function
as your exclusive collective-bargaining representative.
WE WILL NOT fail to bargain in good faith with the Union as
your exclusive collective-bargaining representative by failing to
meet and bargain with the Union at reasonable times.
WE WILL NOT promulgate and maintain an overly broad rule
prohibiting you from engaging in union business on company
property or during work hours.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL promptly rescind the overly broad rule prohibiting
you from engaging in union business on company property or
during work hours.
WE WILL promptly rescind the changes made to unit
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
ATLANTICARE MGMT., LLC D/B/A PUTNAM RIDGE NURSING HOME 27
employees’ annual merit wage increases and reinstate the old
formula for granting such merit wage increases.
WE WILL upon the Union’s request, bargain with the Union at
reasonable times as your exclusive collective-bargaining repre-
sentative.
WE WILL furnish to the Union in a prompt and timely manner
the outstanding information requested by the Union on January
6 and April 19, 2016, with the exception of cost reports for re-
imbursement from Medicaid or any other public entity or pro-
gram for the years 2013 and 2015.
WE WILL, within 14 days from the date of this Order, offer
Catherine Thomas full reinstatement to her former job or, if her
job no longer exists, to a substantially equivalent position, with-
out prejudice to her seniority or any other rights or privileges
previously enjoyed.
WE WILL make Thomas whole for any loss of earnings and
other benefits resulting from her discharge, less any net interim
earnings, plus interest compounded daily.
WE WILL make all unit employees whole for any loss of earn-
ings and other benefits resulting from the reduction of their an-
nual wage increases.
WE WILL compensate any employee receiving a backpay
award for the adverse tax consequences, if any, of receiving a
lump-sum backpay award and WE WILL file with the Regional
Director for Region 2, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a report
allocating the backpay awards to the appropriate calendar years.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Thomas
and WE WILL, within three days thereafter, notify her in writing
that this has been done and that her discharge will not be used
against her in any way.
ATLANTICAE MANAGEMENT LLC D/B/A PUTNAM
RIDGE NURSING HOME
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02-CA-177329 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273–1940.