Chelsea Place

National Labor Relations Board - Board Decisions

Nov 26, 2001

336 N.L.R.B. 1050 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1050
Solomon Health Services, LLC d/b/a Chelsea Place,
Trinity Hill, and Wintonbury Health Center and
New England Health Care Employees Union,
District 1199, AFL–CIO. Case 34–CA–8982
November 26, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On November 21, 2000, Administrative Law Judge
David L. Evans issued the attached decision. The Re-
spondent filed exceptions and a supporting brief; and the
General Counsel and Charging Party filed answering
briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to adopt the judge’s rulings, find-
ings1 as explained below, and conclusions and to adopt
the recommended Order as modified.2
The judge found, and we agree, that the Respondent
was a “perfectly clear” successor within the meaning of
NLRB v. Burns Security Services, 406 U.S. 272 (1972),
and was therefore obligated to bargain with the Union
before changing preexisting terms and conditions of em-
ployment.3 The judge further found, and again we agree,
that the Respondent breached that obligation, and vio-
lated Section 8(a)(5) and (1) of the Act, when it unilater-
ally failed and refused to credit the unit employees with
all of their unused vacation, sick, and personal leave time
that accrued prior to the Respondent’s April 1, 1999
commencement of operations.
In its exceptions, the Respondent contends, inter alia,
that the judge mischaracterized its position as asserting
that the Union waived any rights that the employees may
have had to claim the benefits from the Respondent.
According to the Respondent, its defense is not one of
waiver, but rather that the parties bargained over the is-
sue of accrued benefits and reached an agreement to
which it adhered. For the reasons stated below, we find
no merit in the Respondent’s contention that the parties
bargained to an agreement on the accrued benefits issue.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001).
3 “Although a successor employer is ordinarily free to set initial
terms on which it will hire the employees of a predecessor, there will be
instances in which it is perfectly clear that the new employer plans to
retain all of the employees in the unit and in which it will be appropri-
ate to have him initially consult with the employees’ bargaining repre-
sentative before he fixes terms.” 406 U.S. at 294–295.
The facts, which are fully set forth in the judge’s deci-
sion, can be summarized as follows.
The Respondent purchased the three nursing homes
involved in this proceeding from a State-appointed Re-
ceiver operating those facilities. On February 23, 1999,4
the Respondent, in order to avert a threatened strike dur-
ing its negotiations with the Receiver to purchase the
business, pledged, in writing, to the Union that if the
court approved the purchase, the Respondent would “hire
the current bargaining unit employees” and would “pay
existing wages and benefits in effect immediately prior to
our purchase while good faith negotiations continue.”
There is no dispute that paid vacation, sick, and personal
leave were among the unit employees’ employment con-
ditions.
In March, employees grew concerned about a rumor
that the Receiver was planning to pay (or “cash out”)
employees for vacation time that had accrued before the
April 1 sale date. If that were to occur, employees would
then have no vacation time for the remainder of the year.
This matter was discussed by the Respondent and the
Union in a meeting on March 16. Mark Leff, the Re-
spondent’s director of human resources, told Leslie
Frane, the Union’s vice president, that he “expected” that
the Receiver and the Respondent would be able to agree
that the Receiver would pay the Respondent an amount
of money sufficient to cover the costs involved, and, if
so, the Respondent would honor the vacation credit that
the employees had accrued prior to April 1.
In a subsequent phone call, however, Leff advised
Frane that the Receiver would not agree to this arrange-
ment and would instead pay the employees directly.
Frane was dissatisfied with this resolution because the
Union’s position was that, based on the Respondent’s
February 23 pledge, the Respondent was obligated to
honor the accrued time. Frane stated that a “cash out”
was not appropriate because the contract did not provide
for it. Frane added, however, that if “our members got
checks, . . . they would cash them. And . . . if they
cashed checks equal to the amount of their accrued time,
then that time wouldn’t be on the books anymore. And
so, we wouldn’t hold [the Respondent] liable for time
that the Receiver had paid out . . . but . . . we felt that it
was [the Respondent’s] obligation to honor the time,
[and] that that had been our expectation, our anticipa-
tion.”
4 All subsequent dates refer to 1999 unless specified otherwise.
336 NLRB No. 111
CHELSEA PLACE 1051
On April 1, when the Respondent assumed ownership
of the three facilities, it hired virtually all of the prede-
cessor’s employees and continued, unchanged, all exist-
ing terms and conditions of employment, except for the
accrued vacation, sick, and personal leave time that was
“on the books” as of the change of ownership. The Re-
spondent unilaterally eliminated all accrued paid leave
balances of the bargaining unit employees.
Thereafter, the Union received certain monetary pay-
ments from the Receiver for the employees’ accrued va-
cation leave, but far less than the Union’s estimate of the
value of the employees’ total accrued leave (including
sick and personal leave). The judge found, and we agree,
that “there is a substantial difference between what the
Receiver paid the Union and what the liquidated value of
the employees’ accrued leave was.” 5
On these facts, we cannot agree with the Respondent’s
argument that the Union agreed to accept a cash-out from
the Receiver covering all accrued leave benefits and to
proceed only against the Receiver for any possible short-
fall. To the extent that any “agreement” was reached re-
garding accrued benefits, it was solely between the Re-
spondent and the Union, it covered only the subject of
vacation leave, and it was limited to the Union’s condi-
tional acceptance of a cash out, provided that the amounts
were calculated properly. All of this was made clear by
Frane when, as noted above, she told Leff in March that a
“cash out” was not appropriate, but if it were to occur and
if vacation “checks [were] equal to the amount of [em-
ployees’] accrued time, then that time wouldn’t be on the
books anymore . . . but that . . . it was [Respondent’s] obli-
gation to honor the time.” The conditional requirement of
full payment for vacation credits was not satisfied, how-
ever, as evidenced by the fact that the Receiver’s payment
of $250,000 was less than what was owed. And as for the
sick and personal leave time, even assuming that these two

5 The Respondent contends that it did not introduce any evidence
about the monetary value of the accrued leave balances or the suffi-
ciency of the Receiver’s payments to employees because the judge
ruled that these matters would be resolved at the compliance stage.
Therefore, according to the Respondent, the Board should not consider
the judge’s finding that there was a significant discrepancy between
what the Receiver paid employees and the actual value of the accrued
leave balances.
Contrary to the Respondent’s assertion, the judge did not rule that no
evidence could be introduced about the value of the accrued leave
balances or the sufficiency of the Receiver’s payments. Rather, the
judge merely held that he would not be calculating the exact value of
the leave balances or the precise difference between the Receiver’s
payments and the actual value of the leave balances. The judge did not,
explicitly or implicitly, preclude the Respondent from attempting to
establish that there was no difference between the Receiver’s payments
and the actual value of the leave balances.
items were included in the conditional cash-out deal,6 the
condition was similarly not satisfied as evidenced by the
undisputed fact that the Receiver paid nothing to cover
these accrued benefits. See footnote 4 of the judge’s deci-
sion. In short, a consummated agreement was never
achieved that permitted the Respondent to eliminate ac-
crued leave credits when it commenced operations on
April 1.
Accordingly, we reject the Respondent’s contention,
and we adopt the judge’s decision finding that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
refusing to credit employees with all of their unused va-
cation, sick, and personal leave time that accrued prior to
April 1.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Solomon
Health Services, LLC d/b/a Chelsea Place, Trinity Hill,
and Wintonbury Health Center, Hartford, Connecticut,
its officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
Insert the following as paragraph 2(c) and reletter the
subsequent paragraphs.
“(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”

Darryl Hale, Esq., for the General Counsel.
Cherie Maxwell and Steven M. Fleischer, Esqs., of Newark,
New Jersey, for the Respondent.
John M. Creane, Esq., of Milford, Connecticut, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case
under the National Labor Relations Act (the Act) was tried
before me in Hartford, Connecticut, July 27, 2000. On August
17, 1999,1 New England Health Care Employees Union, Dis-
trict 1199, AFL–CIO (the Union), filed the charge in Case 34–
CA–8982 alleging that Solomon Health Services, LLC, d/b/a
Chelsea Place, Trinity Hill, and Wintonbury Health Center (the
6 The judge found that they were not. In fact, he found that the sub-
ject of personal leave “was not even mentioned between Frane and
Leff” and that Frane’s demand for sick leave credit was “ignored” by
Leff.
1 All dates are in 1999 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1052
Respondent) had committed certain unfair labor practices under
the Act. After an investigation of the charge (as later amended),
the General Counsel issued a complaint alleging that the Re-
spondent had violated Section 8(a)(5) and (1) of the Act by
certain acts and conduct. The Respondent filed an answer ad-
mitting that this matter is properly before the National Labor
Relations Board (the Board) but denying the commission of
any unfair labor practices.
On the testimony and exhibits entered at trial, and after con-
sideration of the briefs that have been filed, I make the follow-
ing findings of fact and conclusions of law.
I. JURISDICTION AND LABOR ORGANIZATION’S
STATUS
The Respondent is a corporation with its office and principal
place of business located in Denver, Colorado, that provides
skilled and semiskilled health care services at three facilities in
Hartford, Connecticut, known as Chelsea Place, Trinity Hill,
and Wintonbury Health Center (the Hartford facilities). During
the 12-month period ending December 31, the Respondent, in
conducting those business operations, derived gross revenues in
excess of $100,000, and it purchased and received at its Hart-
ford facilities goods valued in excess of $50,000 directly from
suppliers located at points outside Connecticut. As such, the
Respondent has been, and is, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and a health care institution within the meaning of Section
2(14) of the Act. As the Respondent further admits, at all mate-
rial times the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Leslie Frane is a vice president of the Union who has respon-
sibility for contract administration at certain Union-represented
hospital units in Connecticut. Frane reports directly to Jerry
Brown, the Union’s president. (Frane testified at trial; Brown
did not.) For many years, the Union and American Health
Foundations/Hartford, Inc. (AFH), had separate collective-
bargaining agreements covering about 500 employees of the 3
Hartford facilities. The last of these agreements were negotiated
in 1995; they were originally scheduled to expire on December
15, 1998, but extensions that were effective through March 31,
1999, were negotiated.
On May 8, 1997, pursuant to a request by Connecticut’s De-
partment of Health, a State court placed AFH in receivership;
E. Cortright Phillips was appointed to be the receiver. Frane
testified that her information was that the receivership was
imposed upon AFH because it was behind in loan payments to
the State and because of certain Health Department concerns
about the levels of patient care at the Hartford facilities. The
Receiver was charged with the duties of improving the day-to-
day operations of the Hartford facilities and, ultimately, finding
a purchaser for them. (Phillips testified, but he did not rebut this
testimony by Frane.) After his appointment as receiver, Phillips
continued to employ essentially the same unit employees, con-
tinued to operate the business in substantially unchanged form,
and continued to apply the collective-bargaining agreements
that covered the employees of the Hartford facilities. Each of
the collective-bargaining agreements provided for vacation
benefits ranging from 2 to 5 weeks depending upon completed
years of service, 3 personal leave days, and sick leave benefits
of up to 12 days per year.
On April 1, the Receiver sold the Hartford AFH operations
to the Respondent. The complaint alleges that the Respondent
is the successor of both AFH and the Receiver and that, in vio-
lation of Section 8(a)(5): “On or about April 1, 1999, Respon-
dent failed to credit the employees in the [three collective-
bargaining units] with all unused vacation, sick and personal
[leave] time.” The Respondent admits that it is the successor of
AFH and the Receiver, and it admits that it did not credit the
employees with vacation, sick, and personal leave time that
accrued before it purchased the operations, but it contends that
the Union waived any rights that the employees may have had
to claim those benefits from it rather than from the Receiver.
At some point in December 1998, Phillips informed the Un-
ion that he and the Respondent had reached a tentative agree-
ment of sale for the three Hartford facilities. By letter dated
December 23, 1998, Brown requested Robert Salazar, the Re-
spondent’s president and CEO, to meet and bargain with the
Union. Salazar did not respond to the letter. (Salazar did not
testify.)
On January 17, the Respondent and Phillips reached an asset
purchase agreement that was to be effective on April 1. Shortly
after being notified of the purchase agreement, Frane sent a
letter (which was undated) to Salazar again asking him to join
in the processes of negotiating for new collective-bargaining
agreements covering the unit employees and specifically asking
him to attend a previously scheduled February 17 bargaining
session between the Union and the Receiver. Salazar also did
not respond to this letter. After receiving no responses to its
letters, the Union sent the Receiver and the Respondent notices
of intent to strike the Hartford facilities on February 24. Frane
testified that during the day of February 23 Brown and Salazar
conducted several telephone calls between themselves. Frane
was not a party to those telephone conversations and therefore
could not testify about their content, but she was able to testify
that, at the end of the day, the Union received a facsimile-
transmission letter from Salazar to Brown. Salazar’s letter
stated:

If our planned purchase of the three AFH Hartford fa-
cilities is approved, we will hire the current bargaining
unit employees of AFH at Wintonbury, Chelsea Place, and
Trinity Hill. If for any reason we do not hire the entire
work force, we will hire in order of seniority. If this is the
case, employees not rehired will have certain recall rights,
subject to negotiations during the month of March.
Second, we will pay existing wages and benefits in ef-
fect immediately prior to our purchase while good faith
negotiations continue. Permanent wages (including future
wage increases), benefits, and working conditions are sub-
ject to negotiations between the Union and Solomon
Health Services in accordance with applicable law.
I hope that these assurances will satisfy your concerns
and lead to a productive relationship between the employ-
ees and our company.

CHELSEA PLACE 1053
Upon receipt of this letter, the Union canceled its strike notice.
On March 16, at the Union’s hall, a delegation of the Re-
spondent’s representatives met with Frane, two other union
representatives (who did not testify), and about 85 unit2 em-
ployees (none of whom testified). The Respondent’s delegation
was headed by Mark Leff, the Respondent’s director of human
resources. Frane testified that some employees who were at the
meeting were prepared with questions, one of which was
whether there was truth to a rumor that the Receiver was plan-
ning to pay (or “cash out”) employees for vacation credit that
had accrued before the April 1 sale date. The employee added
that, if so, the employees would be severely disadvantaged
because they would have no vacation time for the remainder of
the year. (This was because, again, under the AFH agreements,
vacation benefits depended on completed years of employ-
ment.) Frane testified that Leff told the meeting that he agreed
that cashing out the vacation benefits “would be a very bad way
to go because he didn’t want to be in a situation where his em-
ployees didn’t have any time to take for a year.” Further ac-
cording to Frane, Leff stated that he “expected” that the Re-
spondent and the Receiver could work out an agreement pursu-
ant to which the Respondent would be able to grant the leave
time the unit employees expected to be able to take that year.
Shortly after the March 16 meeting, Leff and Frane had 2
telephone calls. Frane testified that during the first telephone
call Leff told her that the Respondent and the Receiver had
worked out the financial details that would allow the employees
to take the leave time when they became employed by the Re-
spondent after April 1. Frane further testified, however, that
during the second telephone call Leff told her that “he was not
going to be able to honor the commitment he had made in the
previous phone call, to keep the time on the books” because
Phillips had reneged and was going to send checks directly to
the employees to cover the dollar values of their accrued leave
time. According to Frane:

I told him I was upset. I told him that the employees
would be upset. I told him that I thought that was com-
pletely inappropriate, because the contract didn’t have a
provision for cash out. That Solomon had agreed to con-
tinue the terms and conditions based on the letter of Feb-
ruary 23rd. And that we believed that they had an obliga-
tion to do that.
I told him, however, that if our members got checks
we weren’t going to throw the checks out. We weren’t go-
ing to return them to the Receiver. If our members got
checks, that they would cash them. And that if they cashed
checks equal to the amount of their accrued time, then that
time wouldn’t be on the books anymore. And so, we
wouldn’t hold Solomon liable for time that the receiver
had paid out . . . but that we felt that it was Solomon’s ob-
ligation to honor the time, [and] that that had been our ex-
pectation, our anticipation.

2 The term “unit employees” in this decision refers to the employees
of all three units.
As discussed infra, Leff denied that he ever agreed that the
Respondent would credit the employees with their accrued
leave benefits.
On April 1, the Respondent hired essentially all of the em-
ployees who had previously been employed by AFH and, more
recently, by the Receiver. When asked what terms and condi-
tions of employment the Respondent continued after April 1,
Frane summarized:

Essentially all of them [including] wages. They con-
tinued to make contributions to the Unions, Health and
Welfare, Pension and Training Fund, shift differential.
They continued to process grievances. They continued to
deduct Union dues and forward that dues to the Union of-
fice. They continued to notify the Union of discharges and
suspensions in accordance with the contract. . . . [A]nd
they continued [with] vacation, sick and holiday time
[benefits], prospectively; they continued to credit employ-
ees with the amounts of time that the contract specified.
The one exception had to do with the accrued sick, vaca-
tion and holiday times that were on the books as of the
change of ownership.

When asked how the Respondent applied the collective-
bargaining agreements’ provisions for personal, sick, and vaca-
tion pay, Frane replied:

All employees started with a zero balance. They had no
vacation, sick [or] personal time available to use. They
then began to earn time going forward at the rate specified
in the contract. And as they earned that time, they were al-
lowed to use it.

The Respondent did not dispute any of this testimony by Frane.
Frane testified that in April the employees received individ-
ual letters from the Respondent containing statements of the
amount of vacation days (or hours) that each employee had
accrued before April 1. Many of these statements were low;
some contained even “negative” balances. Frane further testi-
fied that, also in April, the Receiver paid approximately
$120,000 to the Union to be distributed to the employees as
payment for at least part of their claims for accrued vacation
benefits (but not as any payment for accrued sick or personal
leave). Frane denied that this $120,000 payment was sufficient
for the purpose of liquidating the vacation-leave rights of the
unit employees, a point that the Respondent does not contest.
On May 17, Frane filed a grievance with Leff over the Re-
spondent’s “failure to recognize the vacation, sick, and personal
time accruals of our members” in the three units. Frane stated
in the grievance that, “while we would rather not have the time
cashed out, we would accept such a cash-out, provided that the
amounts were calculated properly.” Frane further stated in the
May 17 grievance that the Union had filed a separate grievance
against the Receiver over the failure to fully pay the employees
for, or to cause them to be credited with, their accrued vacation,
sick, and personal leave time; the May 17 grievance further
stated that, if the grievance against the Receiver went to arbitra-
tion, the Union would have the Respondent joined in that pro-
ceeding. Frane testified that, at some point thereafter, the Union
sought arbitration of both grievances, but the Respondent re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1054
fused to participate and no arbitration was held. The Respon-
dent did not contest this testimony by Frane.
Frane further testified that the State court ordered mediation
of the issues among the three parties (the Union, the Receiver,
and the Respondent) in an attempt to wind up the receivership.
The Receiver participated in the mediation, but the Respondent
refused. The (then) two-party mediation resulted in a Septem-
ber 7 “Settlement and Release Agreement” pursuant to which
the Receiver was to pay the Union an additional $130,000 to-
ward the remainder of what the Union claimed to be the value
of the employees’ accrued vacation time; the agreement left it
to the Union to distribute that money among the units employ-
ees. The “Settlement and Release Agreement” further recited
that payment of the $130,000 (and certain other amounts not in
issue in this case) would release the Receiver from all claims of
the Union; it expressly provided, however, that by entering the
Agreement, the Union did not waive any of its claims against
the Respondent. Frane further testified (without contradiction)
that, although the Respondent refused to participate in the me-
diation, it appeared in State court to protest the Settlement and
Release Agreement. The Respondent did not contest this testi-
mony by Frane.
Frane testified that the Union was not satisfied with the total
of $250,000 that the Receiver paid to the Union as the employ-
ees’ accrued vacation leave because it was far less than the
Union’s estimate of the value of the employees’ total accrued
leave (including sick and personal leave), $1,300,000. This
estimate was necessarily imprecise, but, even if it is high, the
Respondent does not dispute that there is a substantial differ-
ence between what the Receiver paid the Union and what the
liquidated value of the employees’ accrued leave was.3
On August 11, the Respondent and the Union signed a single
collective-bargaining agreement, effective through March 15,
2001, covering the employees of the three units. No mention of
payment or credit for pre-April 1 vacation, sick, and personal
leave time is contained in the agreement. Post-April 1 vacation
benefits are graduated according to seniority as they were in the
prior AFH contracts, and the seniority section includes the
statement: “Employees’ anniversary dates shall be their original
hire dates and not the date that the Employer purchased the
facilities.” The Respondent has made no payments to the em-
ployees as compensation for vacation, sick or personal leave
time that accrued before April 1; nor has the Respondent given
employees credit for such leave in any other fashion. By memo-
randum dated June 2, Salazar informed the unit employees,
inter alia, that the “obligation for your past accrued benefits”
was that of the Receiver.
Receiver Phillips, whom the Respondent called as its wit-
ness, identified an instrument entitled “Employment Transition
Agreement” that he and Salazar executed on March 31. The
Union was not a party to the agreement. The agreement recites,
inter alia: “The Receiver will pay to the employees their unused
vacation pay . . . which has accrued through March 31, 1999.”
The agreement did not state the amount that the Receiver was
to then pay the employees, but, as noted above, Frane acknowl-

3 The Tr. 70, L. 16, is corrected to change “it is not a substantial mat-
ter” to “it is not an insubstantial matter.”
edged that the Union received $120,000 from the Receiver in
April. Phillips testified that he understood that the $120,000
that he paid to the Union in April, plus the $130,000 that he
paid to the Union pursuant to the September 7 “Settlement and
Release Agreement,” did, in fact, fully compensate the unit
employees for unused vacation time. Phillips acknowledged,
however, that the amounts that he paid to the Union were in no
way intended to compensate employees for their accrued sick
or personal leave.4 Phillips was not asked to deny Frane’s tes-
timony that whatever formula he used to calculate employees’
vacation rights yielded inaccurately low balances (including
“negative” balances for some of the employees).
Leff testified that at the March 16 meeting he agreed that it
would be better if things could be arranged so that the employ-
ees’ accrued vacation credit would be carried over as vacation
time with the Respondent. Leff testified that he told those at the
meeting that such an arrangement would require the Receiver to
pay the Respondent the value of the accrued vacations. Leff
testified that at the meeting he promised only to discuss the
matter with Salazar. Leff further testified that in the first tele-
phone call with Frane he told her that Salazar would “pursue
the issue as the Union had requested”; in the second he told
Frane that Salazar had told him that the Receiver was unwilling
to pay the Respondent for the costs of crediting the employees
with vacation time that had accrued prior to April 1 and would,
instead, pay money directly to the employees as compensation
for their accrued vacation leave.5 Leff denied telling Frane that
the Receiver and the Respondent had made arrangements that
would result in the Respondent’s affording the employees time
for accrued vacation, and he denied that Frane told him that the
Union held the Respondent responsible for the vacation time or,
as a less-desirable alternative, payments in lieu thereof. Leff
testified that Frane made no such claim until after the Receiver
had paid out some of the money that was due to the employees
(apparently referring to the claim of the May 17 grievance).
Leff further testified that there were no discussions of benefits
that had accrued before April 1 during the negotiations that led
to the August 11 collective-bargaining agreement.
On cross-examination Leff readily agreed that Salazar’s
March 23 representation that the Respondent would “pay exist-
ing wages and benefits” was made to avert a strike by the unit
employees on March 24. Further on cross-examination, Leff
was asked and he testified:

Q. [By Mr. Creane:] It’s your testimony that Ms. Frane
said whatever the receiver wants to pay the workers, we’ll
accept that?
A. No, that is not my testimony.
4 Phillips testified that he and his attorney decided that the Receiver
was not responsible for sick and personal leave benefits. The distinction
that Phillips made was that the AFH collective-bargaining agreements
provided for pay-out of accrued vacation pay upon an employee’s
termination, but they did not provide for any pay-out of sick or personal
days’ credit.
5 Phillips corroborated this testimony by testifying that he reached
the decision not to pay the value of the accrued vacation benefits to the
Respondent out of fear that, if the Respondent for any reason failed to
credit the employees, the Union might have brought an action against
the Receiver.
CHELSEA PLACE 1055
Q. What did you say?
A. My testimony was—is that Ms. Frane’s preference
was that the receiver pay Solomon for the time, and time
be carried on the books. Her second choice which was ac-
ceptable, but not what she wanted and not what we
wanted, was that the receiver pay out the employees, pe-
riod. There was no discussion about [what would happen]
if they don’t pay the right amount. That was not discussed.

The Respondent, however, contends that Frane consented to
accept whatever the Receiver paid the employees in lieu of
accrued vacation time, if not the other accrued benefits.
Analysis and Conclusions
The Supreme Court has held that, even if a predecessor had
recognized a labor organization as the collective-bargaining
representative of its employees, and even if the predecessor was
a party to a collective-bargaining agreement with such a labor
organization, a successor employer is ordinarily free to set the
initial terms upon which it will hire the employees of the prede-
cessor since the continued majority status of the bargaining
representative of the predecessor’s employees is not evident
until the successor has hired a full complement of employees.
However, the Court has also recognized that “there will be
instances in which it is perfectly clear that the new employer
plans to retain all of the employees in the unit and in which it
will be appropriate to have him initially consult with the em-
ployees’ bargaining representative before he fixes terms.”
NLRB v. Burns Security Services, 406 U.S. 272 (1972). The
Board has interpreted this caveat to be restricted to “circum-
stances in which the new employer has either actively or, by
tacit inference, misled employees into believing they would all
be retained without change in their wages, hours, or conditions
of employment, or at least to circumstances where the new
employer . . . has failed to clearly announce its intent to estab-
lish a new set of conditions prior to inviting former employees
to accept employment.” Spruce Up Corp., 209 NLRB 194
(1974).
Atrium Plaza Health Care Center, 317 NLRB 606 (1995),
which follows Burns and its progeny, is a case that is strikingly
similar to this one. The respondent in Atrium Plaza (also a
Hartford nursing home) was a successor that signed a collec-
tive-bargaining agreement with the Union.6 That agreement
provided that the terms of an expired contract between the Un-
ion and Atrium’s predecessor (also a Connecticut receiver)
would “remain in effect” except as thereafter modified. As in
this case, the Union’s contract with the predecessor had pro-
vided vacation and sick leave benefits based on seniority. (A
personal leave benefit was not mentioned in Atrium Plaza.)
Rather than abide by its contractual commitment to continue
the vacation and sick leave benefits, however, the respondent
unilaterally changed the seniority dates of the unit employees
from their dates of hire by the predecessor to the date that the
Respondent became the successor. The action had the effect of
divesting the employees of vacation and sick leave credit that
had accrued before the change in ownership. The administrative

6 Atrium Plaza involves not only the same issues and the same Un-
ion, it involves the same union representative, Frane.
law judge found that the contractual provision that the prede-
cessor’s contract was to “remain in effect” was a contractual
provision that “contemplates an uninterrupted continuance of
the agreement’s terms,” including vacation and sick leave. The
Board concurred, finding that, although under Burns the re-
spondent in Atrium Plaza arguably could have unilaterally set
the unit employees terms and conditions of employment,

[T]he Respondent here consulted with the Union instead
of unilaterally fixing initial terms, and it negotiated a bar-
gaining agreement governing employees’ terms and condi-
tions of employment. It is axiomatic that, once a bargain-
ing agreement is executed, the terms of that agreement, as
well as any other established conditions of employment
that may have existed, may not thereafter be altered uni-
laterally. The Respondent, however, did precisely that, al-
tering unilaterally each employee’s existing anniversary
date.

The Board therefore agreed that the respondent had acted uni-
laterally, and in violation of Section 8(a)(5) and (1), by chang-
ing the employees’ seniority dates and thereby eliminating their
accrued vacation and sick leave benefits; as the required rem-
edy, the Board ordered restoration of the seniority and the bene-
fits.
Salazar’s written February 23 pledge to “pay existing wages
and benefits in effect immediately prior to our purchase while
good faith negotiations continue” was part of the bargain that
the Respondent made to avert a strike that the Union had
threatened to begin on February 24. The February 23 bargain
between the Union and the Respondent here was no less a con-
tract than was the bargain between the respondent and the Un-
ion in Atrium Plaza. At minimum, Salazar’s February 23
pledge was conduct that actively “misled employees into be-
lieving they would all be retained without change in their
wages, hours, or conditions of employment” within Spruce Up
Corp., supra. Although the pledge expressly stated that benefits
would be maintained “while good faith negotiations continue,”
it did not state that all “existing” benefits (such as accrued leave
rights) would be eliminated after entry of a collective-
bargaining agreement such as that which the Respondent and
the Union reached on August 11. The employees’ statutory
rights to receive their accrued leave benefits from the Respon-
dent therefore vested on February 24, the day that they accepted
the Respondent’s promise and declined to go on strike.
The employees’ rights to their vested benefits, including
their vested leave benefits, could not be divested without an
effective waiver by their collective-bargaining representative.
As has been held repeatedly by the Board and the courts, and as
recently re-articulated by the Board in Charles S. Wilson Me-
morial Hospital, 331 NLRB 1529 (2000):

Waivers of statutory rights “are not to be lightly inferred,
but instead must be ‘clear and unmistakable.’” Georgia
Power Co., 325 NLRB 420 (1998), enfd. mem. 176 F.3d
494 (11th Cir. 1999), citing Metropolitan Edison Co. v.
NLRB, 460 U.S. 693, 708 (1983). “[E]ither the contract
language relied on must be specific or the employer must
show that the issue was fully discussed and consciously
explored and that the Union consciously yielded or clearly
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1056
and unmistakably waived its interest in the matter.” Geor-
gia Power Co., 325 NLRB at 420–421.

Leff acknowledged that the issue of previously accrued benefits
was not even discussed during negotiations that led to the Au-
gust 11 agreement. Moreover, by August 11, the Respondent
had received Frane’s May 17 grievance over the Respondent’s
“failure to recognize the vacation, sick, and personal time ac-
cruals of our members” in the three units. The Respondent,
however, did not secure a withdrawal of that grievance during
the negotiation of the August 11 contract, and the effect of
Leff’s testimony is that the Respondent did not even seek such
withdrawal. Therefore, the Respondent cannot, and does not,
contend that by entering the August 11 agreement the Union
waived the rights of the employees to claim their accrued vaca-
tion, sick, and personal leave benefits. Instead, the Respondent
argues that, even before the execution of the August 11 collec-
tive-bargaining agreement, on March 16, Frane consciously
waived the employees’ statutory right to claim their accrued
leave benefits.
Assuming that Frane’s March 16 conduct theoretically could
have been a clear and unmistakable waiver of the employees’
rights that had vested on February 24, I would nevertheless find
that no such waiver occurred. On brief (p. 11) the Respondent
argues that on March 16 “[T]he parties addressed accrued time
and agreed that the employees would be cashed out by the Re-
ceiver, even though the Union preferred to have the time [car-
ried] over. Attendant to this agreement, the Receiver did cash
out the employees.”7 This statement makes two representations,
both of which are false: (1) Even Leff did not testify that Frane
agreed that the Receiver “would” cash out the employees. At
most, Leff testified that Frane told him that a payout by the
Receiver would be “acceptable.” (2) The Receiver did not cash
out the employees. Although the Respondent has all relevant
employee records, it does not dispute Frane’s testimony that the
payments that the Union received from the Receiver as the
employees’ accrued vacation pay was only a small fraction of
what the employees’ total accrued leave (including sick and
personal leave) was worth.
I do not believe Frane’s testimony that in March Leff made a
“commitment” (either during or after the March 16 meeting)
that the Respondent would credit the employees with vacation
time. I find that, at most, Leff told Frane and the employees that
(as Frane testified at one point) he “expected” that the Receiver
and the Respondent would be able to agree that the Receiver
would pay the Respondent an amount of money sufficient to
cover the costs involved, and, if so, the Respondent would
honor the vacation credit that the employees had accrued prior
to April 1. Also, I find that, as Leff testified, Frane and Leff did
not discuss what would happen if the Receiver failed to pay the
full amount due as the employees’ vacation pay. The finding
that partial payment was not even discussed, however, neces-
sarily leads to the finding that both Frane and Leff thought, and
spoke, only in terms of what would happen if the Receiver
made full payment for the employees’ vacation rights; in that
regard, Frane agreed only not to attempt to “double dip” and

7 Transcript citations (of only Frane’s testimony) are omitted.
seek leave time from the Respondent, as well. Therefore, Frane
did not consciously yield any of the employees’ rights to their
accrued vacation benefits. Nor did Frane consciously yield on
the issues of the employees’ rights to sick and personal leave;
Frane demanded sick leave credit for the employees, which
demand Leff ignored, but personal leave was not even men-
tioned between Frane and Leff in March, as I find. Finally,
even according to Leff’s admission on cross-examination,
Frane did not agree to accept whatever the Receiver might pay
the employees as vacation benefits, or any other benefits, even
if such payment were deficient. Therefore, it cannot be said that
Frane engaged in conduct that clearly and unmistakably waived
the employees’ rights to their accrued leave benefits.
Accordingly, I find and conclude that, by failing to credit the
unit employees with their vacation, sick, and personal leave
time that had accrued by April 1, the Respondent has violated
Section 8(a)(5).8
CONCLUSIONS OF LAW
1. Respondent, Solomon Health Services, LLC, d/b/a Chel-
sea Place, Trinity Hill, and Wintonbury Health Center, of Hart-
ford, Connecticut, is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. New England Health Care Employees Union, District
1199, AFL–CIO (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
3. The employees who are employed by the Respondent at its
Chelsea Place, Trinity Hill, and Wintonbury Health Center
facilities in units that are described in the collective-bargaining
agreement between the Respondent and the Union effective
from June 8, 1999, to March 15, 2001, constitute units that are
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. The Union has been at all material times, and is within the
meaning of Section 9(a) of the Act, the exclusive bargaining
representative of the employees in the above-described collec-
tive-bargaining units for the purposes of collective bargaining
with respect to wages, rates of pay, hours of employment, and
other terms and conditions of employment.
5. Since April 1, 1999, and continuing to date, the Union has
requested, and is requesting, the Respondent to recognize and
bargain collectively with it as the exclusive representative of
employees in the above-described bargaining units with respect
to rates of pay, wages, hours of employment, and other terms
and conditions of employment.
8 The fact that, before entering the Settlement and Release Agree-
ment, the Union also may have had claims against the Receiver is im-
material. See Consolidated Coal Co., 307 NLRB 69, 72 (1992),
wherein the Board states:
The Respondent’s contentions completely miss the thrust of this
proceeding. This is a complaint by the Regional Director for the
Board under the provisions of the National Labor Relations Act
and it stands independent of any rights of the Charging Party to
pursue other legal remedies. Respondent’s plea could have some
relevancy at the compliance stage in this proceeding, but it has no
bearing at all on the question presented by the complaint which is
directed at the issue of whether Respondent violated the Act [as
alleged in the complaint].
CHELSEA PLACE 1057
6. Since April 1, 1999, and continuing to date, the Respon-
dent has engaged in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act by unilaterally, without
notice to or consultation with the Union, failing and refusing to
credit the unit employees with all of their unused vacation, sick,
and personal leave time that accrued prior to April 1, 1999.
7. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent, in violation of Section
8(a)(5) and (1) of the Act, unilaterally failed and refused to
credit the unit employees with all of their unused vacation, sick,
and personal leave time that accrued prior to April 1, I shall
recommend that the Respondent be ordered to cease and desist
from making unilateral changes in the vacation, sick and per-
sonal leave rights of the said employees, or making unilateral
changes in any other terms and conditions of employment of
the said employees, and I shall recommend that the Respondent
make whole the said employees for any loss of pay or other
benefits they may have suffered as a result of the Respondent’s
unfair labor practices in the manner set forth in Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). At the compliance stage, the
Respondent will be entitled to credit for all payments that were
made by the Receiver in partial satisfaction for the unit em-
ployees’ claims for leave time that accrued prior to April 1,
1999.
ORDER
The Respondent, Solomon Health Services, LLC, d/b/a
Chelsea Place, Trinity Hill, and Wintonbury Health Center, of
Hartford, Connecticut, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Changing the vacation, sick, or personal leave time rights
of the unit employees, or changing any other term or condition
of employment of the employees, without prior notice to and
consultation with the Union.
(b) In any like or related manner interfering with, 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 effec-
tuate the policies of the Act.
(a) Credit the unit employees with all of their unused vaca-
tion, sick, and personal leave time that accrued prior to April 1,
1999.
(b) Immediately make the unit employees whole, with inter-
est, for any loss of pay or other benefits that they may have
suffered as a result of the Respondent’s unilateral failures and
refusals to credit them with all of their vacation, sick, and per-
sonal leave time that accrued prior to April 1, 1999.
(c) Within 14 days after service by the Region, post at its
Hartford, Connecticut, facilities copies of the attached notice
marked “Appendix.”9 Copies of the notice, on forms provided
by the Regional Director for Region 34, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since April 1, 1999, the date of the first unfair labor
practice found herein.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

Section 7 of the Act gives employees these rights:

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

WE WILL NOT, without prior notice to and consultation
with New England Health Care Employees Union, District
1199, AFL–CIO (the Union), change your vacation, sick, or
personal leave rights, or any other of your terms or conditions
of employment, while you are employed in collective-
bargaining units at our Chelsea Place, Trinity Hill, or Winton-
bury Health Center facilities, as those units are described in our
collective-bargaining agreement with the Union which is effec-
tive from June 8, 1999, to March 15, 2001.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
to you by Section 7 of the Act.

9 If this Order is enforced by a judgment of the 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 United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1058
WE WILL credit our employees who are employed in the
above-described collective-bargaining units with all unused
vacation, sick, and personal leave time that accrued prior to
April 1, 1999.
WE WILL make whole, with interest, our employees em-
ployed in the above-described collective-bargaining units for
our failures and refusals since April 1, 1999, to credit them with
all vacation, sick and personal leave time that accrued prior to
that date.

SOLOMON HEALTH SERVICES, LLC D/B/A
CHELSEA PLACE, TRINITY HILL, AND
WINTONBURY HEALTH CENTER