CORAL HARBOR REHABILITATION & NURSING CENTTER

National Labor Relations Board - Administrative Judge Opinions

Jul 13, 2017

22-CA-167738 (N.L.R.B. Jul. 13, 2017)

JD(NY)-12-17
Newark, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
NEW YORK BRANCH OFFICE
DIVISION OF JUDGES
CORAL HARBOR REHABILITATION
AND NURSING CENTER
and Case 22–CA–167738
1199 SEIU UNITED HEALTHCARE
WORKERS EAST
Saulo Santiago, Esq., of Newark, New Jersey,
for the General Counsel.
Brandon S. Williams, Esq. and
Bruce G. Baron, Esq., of Harrisburg, Pennsylvania,
for the Respondent.
Jessica E. Harris. Esq. and
Katherine H. Hansen, Esq., of New York, New York,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
KENNETH W. CHU, Administrative Law Judge. This case was tried in Newark, New
Jersey, on October 13, December 5, 6, 7, 2016, pursuant to an amended complaint issued by
Region 22 of the National Labor Relations Board (NLRB) on October 11, 2016.1
The amended complaint states that at all times since June 30, 2015, the 1199 SEIU
United Healthcare Workers East (Union) has been the exclusive collective-bargaining
representative of the Respondent’s employees in the LPN unit of the Coral Harbor
Rehabilitation and Nursing Care (Respondent) constituting a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time Licensed Practical Nurses (LPN) employed by the
employer at its Neptune City, New Jersey facility, but excluding all office clerical
employees, confidential employees, LPN unit managers, other managerial employees,
professional employees, guards and supervisors as defined in the Act, and all other
employees.2
The amended complaint states that on June 30, 2015, the Union was certified as the
exclusive collective-bargaining representative of the aforementioned LPN unit of predecessor
employer, Medicenter Nursing Center (Medicenter) and that Respondent entered an Asset

1 All dates are in 2016 unless otherwise noted.
2 The Licensed Practical Nurses have also been referred as Licensed Professional Nurses in the record.
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Purchase Agreement with Medicenter on or about September 11, 2015 to purchase the
Neptune City, New Jersey facility.3
The amended complaint alleges that Respondent retained a majority of the employees in
the LPN unit as of December 14, 2015 that were previously employed by Medicenter and that
the Union has been the exclusive collective-bargaining representative of the employees in the
LPN unit since January 1, 2016 when the Respondent began operating the Neptune City facility.
The complaint alleges that Respondent failed and refused to recognize the Union as the
exclusive collective-bargaining representative of the Respondent’s employees in the LPN unit
and made unilateral changes in the paid time off and health insurance benefits of the employees
in the LPN unit on about December 15, 2015. The complaint alleges these items relate to
wages, hours, and other terms and conditions of employment of the unit and are mandatory
subjects for the purposes of collective bargaining.
The amended complaint further alleges that the Respondent withdrew its recognition of
the Union as the exclusive collective-bargaining representative of the Respondent’s employee in
the LPN unit as of December 15, 2015.
The counsel for the General Counsel asserts that the Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act (Act) by (1) failing and refusing to recognize
the Union as the exclusive collective-bargaining representative of the Respondent’s employees
in the LPN unit; (2) withdrawing recognition of the Union as the exclusive collective-bargaining
representative of the LPN unit; and (3) making unilateral changes in the terms and conditions of
the Respondent’s LPNs in the unit without affording the Union an opportunity to bargain (see
GC Br. at 2, 3).
The Respondent timely filed an answer denying the material allegations in the complaint
(GC Exhs. 1(K), (E), (G); 2(B)).4
On the entire record, including my assessment of the witnesses’ credibility5 and my
observation of their demeanor at the hearing and corroborating the same with the adduced
evidence of record, and after considering the briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION AND UNION STATUS
The Respondent, a corporation with an office and place of business in Neptune, New
Jersey, operates a nursing facility and rehabilitation center, which based upon projected
operations since January 1, 2016, will derive gross revenues valued in excess of $100,000 and

3 The Respondent stated in its answer that the Asset Purchase Agreement was entered into on September 11,
2015 by Portfolio Holdings, LLC and was amended by the parties on November 5, 2015 and assigned to Coral
Harbor Property, LLC, after it was further amended on December 29, 2015 on behalf of Coral Harbor Property, LLC
and the Respondent (GC Exh. 1(G)).
4 The exhibits for the General Counsel are identified as “GC Exh.” and the Respondent’s exhibits are identified
as “R. Exh.” The Charging Party exhibits are identified as “CP. Exh.” and Joint Exhibits are identified as “Jt. Exh.” The
post hearing brief for the General Counsel is identified as “GC Br.” and the briefs for the Respondent and Charging
Party Union are identified as “R. Br.” and “CP. Br.,” respectively. The transcript is referenced as “Tr.”
5 Witnesses testifying at the hearing included Rhina Molina, Kathleen H. Hansen, Jennifer Higgins, Mimose
Laroc, and Christina Tursi for the General Counsel. Jeremy Schuster, Barry Munk, Marcie Nowicki, and Roberta
Bernard testified on behalf of the Respondent.
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based upon projected operations since January 1, 2016, will annually purchase and receive at
its Neptune, New Jersey facility, goods valued in excess of $5000 directly from points outside
the State of New Jersey. The Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act as of January 1, 2016. The
Union is a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
1. Background Information
Prior to January 1, Medicenter operated a nursing home and rehabilitation center in
Neptune City, New Jersey. The Union has been the exclusive collective-bargaining
representative for the service employee unit at the Neptune City facility and since May 7, 2008
through June 15, 2014, the service employee unit at the Neptune City facility enjoyed a
collective-bargaining contract with Medicenter, with a memorandum of understanding extending
the contract through 2015 (Jt. Exh. 1; Tr. 26, 27).
On June 30, 2015, the Union was certified as the exclusive collective-bargaining
representative for the employees in the LPN unit at the Medicenter’s Neptune City facility, but
the Union and Medicenter never reached a collective-bargaining agreement for the LPN unit
(JT. Exh. 3). Rhina Molina (Molina), who was and is the vice president for the Union, testified
that there were two bargaining sessions with Medicenter for a service employee unit contract on
July 9 and August 20.6 Molina was informed by the Medicenter representative at the July 9
session it would be too expensive to include the employees of the LPN unit as part of a
negotiated contract with the service employees. Molina testified she was informed by Jeff
Corradino (Corradino), one of the members of the Medicenter’s bargaining team, at the August
20 session that Medicenter was in the process of selling the Neptune City nursing facility (GC
Exh. 2; Tr. 19–24).
Corradino confirmed by letter to Molina dated September 17, 2015 that the current
owner entered into an Asset Purchase Agreement (APA) on September 11 with Portfolio
Holdings, LLC to purchase the operations known as Medicenter of Neptune City (GC Exh. 3).7
In response to the September 17 correspondence, Katherine Hansen (Hansen), labor
counselor to the Union, wrote to Corradino that his letter failed to state that the “…purchaser
has agreed to retain all bargaining unit employees and/or assume all terms and conditions of
the CBA” (GC Exh. 4). Hansen wanted assurances that the seller and the buyer respect the
obligations in the CBA with the service employee unit and that the seller had notified the
purchaser of the existence of a CBA and to maintain the terms of the contact. Hansen also
requested a copy of the sales contract and any other documents pertaining to the sale and
information on retention of the bargain unit employees and assumption of the contract (Tr. 27–
29).
Corradino responded by letter dated September 22, 2015 and attached a copy of the
APA and other pertinent information to Hansen (GC Exh. 5). In relevant parts, Paragraph 11(g)
of the APA states

6 Molina testified that the first session was on August 20, 2014 (Tr. 19), but she obviously meant 2015 since the
Union was not certified as the exclusive collective-bargaining representative for the employees in the LPN unit until
June 30, 2015.
7 At the time, the owner of Medicenter was Jersey Shore Convalescent Center.
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Without limiting any other provision of this Article (i) Seller has informed Purchaser that
the Facility is a party to the CBA related to the Service Bargaining Unit Employees,(ii) a
copy of the CBA had previously been delivered Via electronic mail to Purchaser for its
review,(iii) the CBA will expire on August 31, 2015, (iv) Purchaser shall offer retain all
eligible Service Bargaining Unit Employees and, if they accept their offers, their
employment will continue uninterrupted without loss of seniority; compensation, benefits
or other terms and conditions of employment subject to the expired CBA and applicable
law, (v) the Purchaser will recognize the 1199 SEIU as the union representing the
Service Bargaining Unit Employees; and (vi) Purchaser will not assume the CBA, rather
in accordance with Article 37 of the CBA Purchaser will institute new initial terms and
conditions of employment which are consistent with the expired CBA effective from and
after the Closing Date and agrees to bargain in good faith to negotiate a new CBA with
1199 SEIU after Closing but under no circumstances will Purchaser assume or be
deemed to assume the CBA or be deemed a perfectly clear successor.
After several additional exchanges between Hansen and Corradino, Hansen expressed
her general satisfaction that the APA provided the protections necessary for the service
bargaining unit employees (Tr. 36, 37).
With regard to the LPN unit employees and other facility employees, the APA expressly
stated in paragraph 11(b) that
Excluding the Service Bargaining Unit Employees, Purchaser’s obligation as set forth
herein to extend offers employment to any other Facility Employees is subject to any
new employment terms as determined by the Purchaser and Purchaser is solely
responsible to determine which employees it will offer employment. Purchaser’s
agreement herein to offer employment to Facility Employees is solely between Seller
and Purchaser and is not intended for the benefit of third parties, As such, no Property
Employee can rely on Purchaser’s obligation to offer employment to any of the Facility
Employees.
Molina testified that Medicenter did not agree to bargain over the LPN unit during their
August 20 bargaining session because it was too expensive to include the LPNs in the
negotiations for the service employee contract. Molina testified that there was no mention as to
whether there would be changes in LPN duties or whether they would be converted to
supervisors at that time (Tr. 23). Hansen agreed that paragraph 11(b) of the APA would include
the LPNs. Hansen confirmed that the topic over the LPNs was not discussed after the August
20 bargaining session and that the Union did not raise the changes in the terms and conditions
of the LPNs prior to December 15, 2015 (Tr. 57–59).
The Respondent became the operating owner and renamed the facility as Coral Harbor
Rehabilitation and Healthcare Center on January 1. The Respondent’s chief executive officer
was and is Norman Rokeach and the new facility administrator was and is Jeremy Schuster.
Barry Munk was and is the Respondent’s chief operating officer.
Prior to assuming operations of the facility, the Respondent, on December 15, 2015,
informed the Union of its intention to hire the LPNs as supervisors at the facility and to exercise
its rights as a Burns successor to unilaterally set initial terms and conditions for the LPNs,
including the conversion of the LPNs to supervisors (GC Exh. 13). The Union, through Hansen,
objected to Louis J. Capozzi, Jr., the counsel for the Respondent, on December 17, 2015 to the
Respondent’s conversion of LPNs to supervisors or to impose any additional LPN job duties
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without bargaining with the Union. Her letter stated that the Union demand bargaining on behalf
of the LPN bargaining unit upon the Respondent’s assumption of the operations (GC Exh. 14;
Tr. 38–41).
On December 23, 2015 the counsel for the Respondent informed Hansen that job offers
have been sent to LPNs that it intends to hire and that information was provided to them,
including their new job description and new employee handbook. The letter reiterated that the
Respondent is a Burns successor and is entitled to set initial terms and conditions of
employment including the conversion of positions to statutory supervisors (GC Exh. 15). It is
not disputed by the parties that the Respondent hired a majority of the LPNs formerly employed
at Medicenter (Tr. 51; 446, 447).
The Respondent employs approximately 25 full-time, part-time and per diem LPNs and
36 Certified Nursing Aides (CNA) (GC Exhs. 30–32).
2. The LPNs are Hired with the Respondent
The LPNs previously employed by Medicenter received offers of employment on about
December 14, 2015 with the new operator. The offer considered the LPNs as new employees
and stated that the Respondent would honor their prior vacation, sick and personal time as set
forth in the records of the prior employer. The offer stated that their new payroll would begin on
January 1, 2016, but there was no mention of any changes in the LPNs’ wages. The offer also
stated that the Respondent now expects the “. . . LPNs to take an active role in supervising
CNAs (Certified Nurse Aides) and that they will be trained to develop the supervisory skills
needed to exercise your independent judgment in guiding the performance of CNAs. LPNs will
actively participate in CNA evaluations and issue employee disciplines where needed.” The
offer reminded the job applicants to read the new LPN job description and employee handbook
(see job offers to Jennifer Higgins, GC Exh. 25; Mimose Laroc, GC Exh. 39; and Christina Tursi
at R. Exh. 3).
Jennifer Higgins (Higgins) began working at Coral Harbor in January 1 as a LPN. Prior
to Coral Harbor, she was employed by Medicenter for over 2 years as a LPN. Higgins did not
recall the specific date, but testified that she was informed in December by Schuster that
Medicenter was sold to a new company. The meeting was held with most of the Medicenter
employees and approximately 50 employees from various occupations, including LPNs,
maintenance, dietary, and housekeeping, attended the meeting (Tr. 81–84). Higgins, as were
others, was informed by Schuster that her job was secure and things would remain the same,
but there would be changes. Schuster told the audience that “change is good.” Higgins and the
other LPNs were informed at the meeting by Schuster that the LPNs accepting a job offer with
the Coral Harbor facility would have the authority to write up CNAs with written and verbal
warnings (Tr. 141,153).
Higgins testified that she was given a job application by the receptionist after the
meeting. Higgins completed the application and returned it to the receptionist before the end of
the day. The receptionist called the following day and informed Higgins to pick up her
employment offer. Higgins’ job offer was dated December 14, 2015 (GC Exh. 25; Tr. 86).
Higgins was asked to meet with someone at the facility’s library. She was unable to identify the
person in the library, but was informed by her that everything was going to remain the same.
Higgins was asked to sign the job offer, which she did. Higgins was also given some
paperwork, which she failed to identify at the hearing. Higgins received a job description of her
new position and a new employee handbook. Higgins’ job description is captioned “Nurse
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Supervisor (LPN).” The job description informed the new hire that the “The primary purpose of
your position is to provide direct nursing care to the residents, and to supervise the day-to-day
nursing activities performed by CNAs and by other nursing personnel” (GC Exh. and 27). The
handbook received by Higgins states, in part, that the LPNs are considered supervisors by the
facility and that they have the responsibility to issue discipline (oral and written warnings) and
for evaluating employees in the nursing department.
Higgins testified that she was not aware that she was applying for a supervisory position
when offered the position (Tr. 152). Higgins acknowledged and signed her job offer and the job
description on December 14. Her job offer stated (GC Exh. 25), in part,
Furthermore, our Company expects LPNs to take an active role in supervising CNAs.
We look forward to working with all LPNs to help you develop the supervisory skills
needed to exercise your Independent judgment in guiding the performance of CNAs.
LPNs will actively participate in CNA evaluations and issue employee disciplines when
needed. During the next couple of weeks we will provide training sessions to review your
new duties. Please be sure to read your new Job Description and Employee Handbook
for a more thorough explanation to help facilitate the training sessions and a smooth
transition.
The employee handbook received by Higgins under “Role of Licensed Professional
Nurses (LPNs) and Registered Nurses (RNs)”(GC Exh. 26 at p. 27) stated
As supervisors, they have the responsibility for assigning work of nursing assistants and
attempting to resolve partner problems, complaints and grievances. RN and LPN
Supervisors also have the responsibility to issue discipline (oral and written warnings) to
nursing assistants when they believe it is warranted. Discipline can be for matters
relating to resident care or for violations of the employee rules of conduct under Coral
Harbor’s Progressive Disciplinary System.
Discipline should only be issued when warranted, and in a consistent fashion. RN and
LPN Supervisors are further responsible for evaluating employees in the nursing
department. These evaluations are used to help determine continued employment and
the amount of discretionary wage increases, if any.
Higgins did not recall if she read the entire applicant packet given to her before signing
her job offer on December 14 (Tr. 84–91). Higgins admitted that she was given the opportunity
and time to read her job offer and recalled that another employee named Melinda Peavy had in
fact reviewed her documents (Tr. 138–142).
Christina Tursi (Tursi) is a LPN and started work at Coral Harbor on January 1. She
previously worked at Medicenter as a LPN. Tursi said she was called by the receptionist to
apply for the LPN position and did so. After completing the application, Tursi received a call
from receptionist to meet at the facility’s library. At the library, Tursi received a letter of offer and
handbook. Tursi was also told by an unidentified person that nothing was going to change.
Tursi was asked to sign the job offer. The job offer was dated December 16 and Tursi signed
the offer on that date (R. Exh. 3). Tursi’s job offer did not state that she was being hired as a
supervisor as was stated in Higgins’ job offer. Tursi’s job description was captioned “Nurse
Supervisor (LPN)” and she signed the document on December 15, 2016 (R. Exh. 4). Tursi
recalled two other employees were also presented at the library that she identified as Jennifer
Higgins and Medlina Peavy. Tursi signed her job offer, but stated that she did not receive a
copy of the job offer (Tr. 190–193).
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Mimose Laroc (Laroc) started working at the Coral Harbor facility on January 1 as a
LPN. She had also previously worked for Medicenter as a LPN. Laroc remembered a meeting
in December with other employees and was informed that Medicenter was being sold. She
recalled that Schuster was also present (Tr. 159–162). Laroc applied for the LPN position and
was summoned by the receptionist to get her job offer. The job offer was dated December 14
and was given to her by an unidentified person in the library. Laroc signed her job offer on that
day. Laroc’s job offer included the same language as in Higgins’ offer regarding her role as a
LPN supervisor. Laroc said she was given an opportunity to review the packet before signing.
Laroc could not recall if she received a job description and a new employee handbook. Laroc’s
job description was captioned “Nurse Supervisor (LPN)” (R. Exh. 2). Laroc said she did not pay
attention to the documents in the packet and just signed the documents. Laroc said she was
never told of any changes in the terms and conditions of the LPN position (Tr. 162–165; GC
Exh. 39).
Roberta Bernard was hired as a LPN at the Coral Harbor facility in February. She
testified to receiving a copy of her job description and an employee handbook. Bernard’s job
description is captioned “Nurse Supervisor (LPN).” Bernard acknowledged and signed the job
description. Bernard did not recall receiving a job offer, but testified that she was being hired as
a supervisor when she applied for the LPN position (Tr. 426–428; R. Exh. 7).
Barry Munk (Munk) is the chief operating officer for the Marquis Health Services and
oversees the operations for 15 healthcare homes, including Coral Harbor. He works with
regional teams to monitor and support the performance of the 15 facilities. Munk has been in
the healthcare business for the past 7 years. He testified that there are different structures with
the LPNs and a determination was made as to which structure would fit best at a particular
facility (Tr. 348–349).
Munk was involved in the transition of Medicenter to Coral Harbor. He was involved in
making sure all the pieces were in place, to include payroll, job descriptions, the hiring of
personnel for the maintenance, housekeeping, and other departments. Munk said he had very
limited role in transitioning the LPNs, but was familiar with the LPN job description and job offers
made to the LPN applicants. Munk thought that giving a salary increase to the LPN applicants
would encourage them to accept more responsibilities. Munk said that only the LPNs received
a salary increase in order to compensate them as a supervisor.
Munk testified that a wage increase for the LPNs was made 2 weeks after the January 1
takeover. He admitted that the raise was not included in the initial job offer. Munk stated that
the decision to give the LPNs a wage increase was made shortly after January 1. He stated
that the LPNs were informed of their raises at a meeting with Schuster prior to receiving their
first paycheck (Tr. 368–371).
Munk wanted the transition of LPNs to supervisors to go “as smooth of possible” at the
time of implementation (on January 1). However, Munk testified that he was not particularly
involved in the review of the completed LPN job applicant documents and admitted that the new
HR person hired to oversee the LPN application process was not fully familiar with the process
and that paperwork was lost or not corrected (Tr. 353–363).
Munk said that Chelsea Baumann from the parent company (Tryko) was the one who
had distributed the job offers to the LPNs. Munk said that Respondent purposely had Baumann
distribute the job offer and package because he knew that the job applicants would have
numerous questions about their new responsibilities and he did not want the Respondent to
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communicate all the aspects of the new model at that time. Munk said that the new HR director
was not involved in passing out the job offers (364–368).
Jeremy Schuster (Schuster) is the administrator for Coral Harbor. Schuster testified that
he worked with Medicenter in October/November 2015 to help with the transition. Schuster said
he was the “unofficial co-administrator”, and was involved in day-to-day operations and focused
on making a seamless change of ownership. Schuster became the new administrator of the
facility as of January 1, 2016 (Tr. 250, 252).
Schuster was involved in the hiring process of the LPNs but was not involved in the
specifics of the individual applicants. He testified overseeing the entire process from getting to
know some of the employees, reviewing their personnel files, interviewing and offering jobs.
Schuster testified that he discussed the LPNs’ supervisory duties in the job offers and answered
questions of the job applicants. Schuster said that the job offer was given to the LPN applicants
on December 14, 2015 and that every LPN received a 2 percent raise for their additional duties
starting with the first payroll in January (Tr. 254, 255).
Schuster admitted that while he oversaw the hiring process for the LPNs, he did not do
the actual hiring. He stated that some corporate people assisted in the hiring. Schuster was not
involved in distributing the job offers, although he was present at the facility at the time the
offers were made. He insisted that he was present on some occasions and was available if
there were any questions, but he was not exactly sure what he told the employees (Tr. 270–
274).
Schuster explained that LPN applicants were not initially informed that they were
applying for a supervisory position, but were informed of changes in their job duties. Schuster
noted that Nicole Christ was hired as a LPN on August 10 and not for a supervisory LPN
position. (GC Exh. 23L; Tr. 274–277). Schuster was also aware that Marie Derose, who had
previously worked as a LPN with Medicenter, was hired by the Respondent and an offer made
to her on December 31, 2015. The job offer to Derose did not state that the position was for
LPN supervisor and there was no job title in the offer. Schuster testified that the offer omitted
the job title and that was a mistake (Tr. 277–279; GC Exh. 51).
Schuster stated that the job posting for LPNs after January 1 did not mention it was for a
LPN supervisor. Schuster related that he wanted to have all the job applicants hired first and
then the Respondent could subsequently discuss their supervisory duties with them. Schuster
testified that with other types of hiring at the facility, a job posting may specifically call for a
supervisor and the job offer would state supervisor (Tr. 279–283; GC Exh. 52). Schuster
insisted that LPN applicants were aware that they were being hired as a supervisor based on
the job offer and job description that accompanied the offer (Tr. 325).
3. The LPN Training on December 16
Higgins attended and received an in-service training session on December 16, 2015 that
was presented by attorney Brandon S. Williams, the labor counselor for the Respondent. She
said the training included information on their new authority as LPNs and their duty in
disciplining CNAs. Higgins said the training lasted less than 15 minutes. She insisted that the
training did not cover evaluations of CNAs or that LPNs were now responsible for evaluating
CNAs (Tr. 95–97; GC Exh. 28).
Tursi also attended LPN training on December 16. She testified that the training was on
discipline regarding the CNAs. Tursi said that the training presentation took 30 minutes. Tursi
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also testified that the training did not cover how to prepare evaluations (Tr. 193, 194; GC Exh.
29).
Laroc attended training on the same date (GC Exh. 29). She recalled that her training
cover her new job description and her supervisory duties with the CNAs. Laroc specifically
recalled the presenter discussing discipline, training and educating the CNAs. She stated that
the presenter told the LPNs that: “We [are] in charge of the CNAs.” Laroc said the presenter
also discussed training for and evaluation of the CNA employees. Laroc testified that the
training was done through a PowerPoint presentation on topics such as the discretion of the
LPN to issue discipline or to re-educate the CNA for a performance deficiency and in evaluating
CNAs. Laroc believed that the training was over an hour (Tr. Tr. 169–171;181–183; R. Exh. 1).8
Bernard testified that she had not been given training as a LPN supervisor with the
Respondent when she was hired in February, but she did attend orientation (Tr. 433, 443).
4. The December 17, 2015 Meeting
Higgins recalled a second meeting attended by approximately 50 employees on
December 17, 2015. Higgins said that Norman Rokeach (the Respondent’s chief executive
officer) and Munk were also present. The employees were informed that 97 percent of their
jobs were saved and given assurances that nothing would change except for a shift in the
laundry department. Higgins said that this meeting lasted about 30 minutes (Tr. 97–99).
Tursi also recalled a second full staff meeting on December 17 that was attended by
approximately 40 of the former Medicenter employees at the facility. She said that Rokeach
spoke on behalf of the new owner to the group. Tursi recalled that Rokeach told everyone that
their jobs were safe, but vacation time would be changed. She did not recall if anything else
was said by Rokeach (Tr. 200–202).
Like Higgins and Tursi, Laroc recalled a second staff meeting with the new owners.
Laroc was told by Rokeach that 95 percent of the employees would keep their jobs. Laroc said
that Rokeach never spoke about their terms and conditions of employment at the meeting
(Tr.165–166).
Schuster testified that there was a second staff meeting with approximately 50
Medicenter employees in attendance on December 17, 2015 and that he was present at the
meeting along with Rokeach. Schuster stated that this meeting occurred after the LPN training.
Schuster gave a general introduction of Marquis, the umbrella company, and its philosophy in
caring for patients. He informed the attendees that most would be hired, but there would be
some changes because Medicenter was not a successful enterprise. He did not state what the
changes were or when they would occur (Tr. 266, 267). He stated that a majority of the
employees would be hired, but did not recall stating that 97 percent would be hired (Tr. 288–
290).

8 The Respondent introduced an exhibit (R. Exh. 1) that represented the training conducted on December 16.
The counsel for the General Counsel objected to this exhibit because it was not properly authenticated (Tr. 181–187).
The exhibit details some of the supervisory responsibilities of the LPN, which included the discipline, education,
evaluation and training duties with the CNAs. The exhibit was not rejected and accepted for its probative value since
it is not wholly inconsistent with the testimony of Higgins, Tursi and, in particular Laroc, who had testified that the
presentation covered the role of the LPNs in the discipline, training, evaluation, and education of the CNAs.
Consequently, the relevant portions of the training were authenticated by the General Counsel’s witnesses.
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5. The Activities and Responsibilities of the LPNs
I. The Testimony of Mimose Laroc
Laroc testified that she begins her day by clocking in her arrival time at the facility and
reviewing the activity log from the night nurse. Laroc said that her chart and other paperwork
are done at the nurses’ station because she has not been assigned an office. She is aware that
the unit manager and the director of nursing have offices. Laroc stated that she would count the
prescribed drugs in her med cart and then begin her day in distributing the medication and
caring for the residents. She did not testify to any interactions with the CNAs at the start of her
day. Laroc has an identification badge that designated her as a LPN supervisor. She testified
that the badge was issued to her in September. Her previous identification badge was not titled
“supervisor” (Tr. 166–169).
With regard to her authority to discipline CNAs, Laroc testified that she doesn’t believe
she has the authority to hire and fire employees. She has recommended people for hiring as
nurses and CNAs. Laroc has not disciplined anyone, but recalled signing a disciplinary notice
on two employees that were completed by the Director of Nursing (DON), Marcie Nowicki, on
January 18 and 26 (Tr. 169–172; GC Exhs. 41 and 42). Laroc testified that she gave discipline
to the employees, but the actual disciplinary notice was written by the DON. Laroc testified that
she was not present when the employee committed the infraction and so the DON wrote the
discipline and gave it to Laroc to issue. Laroc believe that the second discipline was written by
the DON because Laroc did not witness the infraction (GC Exh. 42; Tr. 172–176). Laroc
testified she did not discipline employees when employed by Medicenter and that disciplining
employees was not a requirement for her former position (Tr. 181).
With regard to her authority to evaluate CNAs, Laroc testified that she has signed
evaluations at the directions of the DON. She testified that she has completed “a couple” of
evaluations. Laroc testified to an evaluation given to employee Marie Marcelus and explained
that it was the DON who had approved the evaluation on a date earlier than it was signed by the
employee. Laroc testified that the DON had directed and approved the evaluation but Laroc
was unable to issue the evaluation to Marcelus and have it signed until July. Laroc testified that
the employee’s appraisal already had the name of the employee written on top of the form by
another person. Laroc stated that she completed the rest of the form, including the evaluation
ratings for the employee (Tr. 177–180; GC Exh. 43). Laroc stated that she has completed
evaluations for two employees that were independent of any influence from her superiors. She
stated that when she received the evaluation form, the only item pre-written on the form was the
employee’s name on top of the evaluation so that she would know the name of the CNA she
was evaluating (Tr. 187–189).
II. The Testimony of Jennifer Higgins
Higgins also starts her day by clocking in and going to her assigned unit to review the
shift report from the previous nurse. Higgins stated that she does her paperwork at the nurses’
station because she has not been assigned an office. Higgins testified that she gives the
assignments to the CNAs, but that the assignments and work schedules of the CNAs had
already been prepared and completed by either the staffing coordinator or the DON (Tr. 99–104;
GC Exhs. 30 and 32). Higgins testified that she does not attend morning meetings with other
managers and is not involved in planning the care for the patients. Higgins has no role in the
assignment of the CNAs, but is responsible for handwriting the names of the CNAs on an
assignment chart to ensure an even distribution ratio of CNA workers to residents for each
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assignment. Higgins explained that she may add or subtract a patient to or from a CNA to even
the distribution. Higgins, on occasions, may also assign CNAs to patients arriving at the facility
during the night that were not accounted for by the staffing coordinator or DON (Tr. 108–112).
Higgins has called or texted CNAs about their work schedules, but only if instructed by
the DON and only upon approval by a supervisor could she find a replacement when a CNA
calls in sick. Higgins said she cannot approve any leave request from a CNA (Tr. 142–144;
197, 198).
Higgins said she had an identification badge designating her as a LPN when she was
hired. She testified that in September or October, she received a new ID badge designating her
as a “LPN Nursing Supervisor” (Tr. 118–121; 197–200; GC Exh. 34).
In evaluating employees, Higgins testified that she only started completing evaluations of
CNAs in April when there was a meeting with Schuster about doing them on a weekly basis just
around the time that Higgins visited the NLRB Regional office to provide an affidavit on a charge
against the Respondent. She stated that the meeting was held on April 17 and her visit to the
NLRB Regional Office was on April 18. Higgins recalled completing an evaluation for CNA
Vanisha Wilson (GC Exh. 35: evaluation of Vanisha Wilson). Higgins testified that she did not
complete the front page of the evaluation form and was instructed by her supervisor to complete
the evaluation. Higgins stated that her supervisor did not tell her what to fill out on the
employee evaluation. Higgins stated that she has completed additional evaluations, but did not
recall how many after the two evaluations were done in May (Tr. 122–127).
As to her role in disciplining employees with the Respondent, Higgins testified she
cannot hire or fire an employee, but has recommended discipline since May (Tr. 153, 197, 198).
Higgins said she has issued discipline on two employees. Higgins said that employee James
Daye was given two disciplines on May 4. One discipline was a verbal warning and the second
discipline was for re-education.9 Higgins insisted that Schuster instructed her on the type and
severity of the discipline, but also admitted that Schuster told her to proceed with the discipline
“as appropriate” (GC Exh. 36; Tr. 149).
Higgins said she needed advice from the DON Nowicki on completing the disciplinary
notice that was given to her by Schuster. Higgins needed assistance because she did not
witness the infraction and did not have access to the personnel file of the employee to know of
any prior progressive discipline (verbal, suspension, etc.). Higgins was informed by the DON as
to the type of severity of the discipline. The narrative in the notice of discipline was written by
Higgins, but the severity of the discipline was determined and approved by the DON. Higgins
admitted she was not aware of the factual situation for the basis of the discipline (GC Exh. 37;
Tr. 129–134).
Higgins testified that there was a second discipline she issued involving the same
employee. Higgins testified that she recommended re-training (education) for Daye as the
corrective action and this was approved by the DON. Higgins said that the re-education of the
CNA as a discipline was her decision. Higgins testified that “Yes, it’s got to be my final decision
because I’m the one handing it to him” (Tr. 131–134; 149; 156; GC Exh. 36). However, in
actuality, the severity and approval of the discipline was determined by the DON (GC Exh. 37).

9 Higgins testified that she had disciplined Ebony Reed and James Daye (Tr. 129). However, Higgins did not
follow up on her testimony with regard to Reed. The General Counsel and the Respondent never proffered any
evidence on the circumstances of Ebony Reed’s discipline. The Respondent’s “proposed findings of fact” at
paragraphs 32 and 33 only suggested that the two disciplines issued by Higgins were for Daye.
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With regard to the training, Higgins has not been involved in conducting in-service
training for the CNAs. She said in-service training is performed by DON or by unit
manager/physician. Higgins has provided in-service training on a presentation that was already
prepared for her, but insisted she had no role in preparing the training (Tr. 112–118).
III. The Testimony of Christina Tursi
Tursi testified that she would begin her day by clocking in for work and then head to the
nurses’ station to retrieve the previous report on the events that occurred during the night. Tursi
testified she has not been assigned an office and would review the daily log at the nurses’
station. Tursi does not attend morning managerial staff meetings. Tursi recalled that she
received a new ID badge with “supervisor” title in September.
After a review of the log, Tursi would then count the drugs and sit with the CNAs to
discuss assignments. Tursi said that the CNAs were already given permanent assignments and
she would need permission from a supervisor to reassign a CNA. Tursi said her role was to
merely handwrite the name of the CNA on the assignment sheet (Tr. 194–197; GC Exh. 32 is a
copy of a CNA assignment sheet).
Tursi said that the CNA daily assignment sheet is completed by the staffing coordinator
and she has no responsibility in the assignments of the CNA. Tursi also confirmed that she
does not have the authority to approve leave or revise the work schedules of the CNA (Tr. 197–
200).
Tursi has issued disciplinary actions as a LPN with the Respondent. She testified that
she would consult with the DON before issuing the discipline and has to get the notice of
discipline from the DON. Tursi testified that she cannot discipline without first discussing the
matter with the DON or supervisor. Tursi testified that she would be instructed by a supervisor
to write up the discipline on a CNA. Tursi would write up the narrative in the notice of discipline
in her own language, but the severity and approval of the discipline is decided by the DON or a
supervisor (Tr. 202–206; 237, 238; GC Exhs. 44–47).
Specifically, Tursi testified that she wrote the narrative on the notice of discipline for
employee Debbie Bartee but the verbal warning and approval of the discipline was determined
by the DON (GC Exh. 44). Tursi testified that Michelle King, a weekend supervisor, had written
a discipline notice on employee Vanisha Wilson and then King asked Tursi to give the notice of
discipline to the employee. Tursi stated that she had no other role with that discipline (GC Exh.
45). On a third discipline involving Kalia Brown, Tursi testified that King also wrote the notice of
discipline and she was instructed to issue the discipline by King. King determined and approved
the discipline on Kalia Brown (GC Exh. 46). On a fourth discipline of employee Jahasia Weston,
Tursi stated that she wrote the narrative on the notice of discipline at the direction of supervisor
Lauren Sutton. The discipline notice does not reflect the type of discipline that was issued to
Weston and no approving official signed the notice (Tr. 207–211 GC Exh. 47).
Tursi has completed evaluations of the CNAs but stated she did not start until March
2016, shortly after she was subpoenaed by the NLRB. Tursi recalled that she attended a
meeting with Higgins, Elsa Ryan (LPN), Schuster and Phil Back and was given a form by
Schuster for her to do weekly evaluations on the CNAs. Tursi stated that the LPNs were
recently given access to the evaluation forms (in September).
Tursi said that she completed her first evaluation of an employee on May 14. She said
that the DON gave her the evaluation form and she was instructed how to evaluate the
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employee. Tursi testified that the name of the employee was already written on the top of the
appraisal when she received the form from Schuster. Tursi insisted that part of the evaluation
form was not in her handwriting and some of the numerical ratings of the employees were not
done by her (Tr. 211–216; GC Exh. 48: evaluation of Natasha Johnson). Tursi testified that she
completed evaluations on at least three other employees on her own without any influence or
directions from a manager. She stated that only the employee’s name on top portion of the
evaluation form was completed by someone else (Tr. 220–223; GC Exh. 50).
With regard to her responsibility in training the CNAs, Tursi testified that she conducted
an in-service training with the CNAs. She developed the training because Tursi recognized,
along with other nurses, that the CNAs were deficient in a particular area. Tursi said that the
training was a group effort and took approximately 10 minutes (Tr. 223–224; R. Exh. 5).
IV. The Testimony of Roberta Bernard
Bernard has issued three disciplines and testified she had made the formal
recommendations and the subsequent discipline was done by the unit manager. On one
occasion, Bernard said that she decided to discipline a CNA for excessive lateness. Bernard
did not consult with anyone before issuing the discipline and no superiors influenced her on the
decision-making. Bernard testified she issued discipline to a second CNA for lack of patient
care. She stated that no one instructed her to do so and she did not consult anyone on the
discipline (Tr. 428–431).
However, Bernard also testified that on three other disciplinary actions, she either was
instructed to write up the discipline or the discipline was written for her signature. On one
occasion, Bernard said that she did not observe the infraction, so the discipline was written by
Schuster after a discussion with her and a social worker. Bernard was asked by Schuster
whether the severity of the discipline was appropriate and whether Bernard felt that the
infraction warranted a disciplinary action. She said that the final outcome was a suspension of
the employee done by Schuster (GC Exh. 59; Tr. 436–437). Bernard further testified that on
another occasion, she issued two disciplinary actions for the same employee. Bernard said that
the two notices of disciplinary action were written by the unit manager based upon information
she provided to the manager. Bernard said that the notices were returned to her after they were
written and Bernard signed the notices. Bernard admitted that the unit manager made the
decision to discipline this employee (Tr. 438–440; GC Exhs. 60 and 61).
Bernard has completed evaluations of CNAs during her employment with the
Respondent. She insisted that she was not influenced by management on her evaluations of
the employees. Bernard testified she was instructed to complete the evaluations of the
employees and someone would give her the evaluation forms for her to complete (Tr. 440–443;
GC Exh. 62).
6. The Respondent’s Rebuttal
Munk testified that he realized through his years of experience that the RNs, LPNs and
CNAs would operate separately and independently of each other and there was no coordination
of the health care for the residents. Munk felt that placing the responsibilities of the CNAs in the
hands of the LPNs would serve to provide coordinated care and allow them to work cohesively
together. Munk testified that implementing LPN supervisory positions at Coral Harbor was part
of the corporate effort to improve patient care. Munk said that this was a developing new
concept and he did not want to roll out this model with the 15 facilities at the same time. Munk
said that he started placing the CNAs under the supervision of the LPNs with a facility named
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Willow Springs, which was located near the Marquis corporate offices to allow closer monitoring
of the new model. He stated that Coral Harbor was the second home to have LPNs supervise
the CNAs and that the transition began in September 2015 after the signing of the asset
purchase agreement (Tr. 350–353). Munk testified that the LPN job description was taken from
another facility and revised prior to the signing of the APA on September 11, 2015 (Tr. 371, 373,
374; GC Exh. 5).
Schuster testified that LPNs are supervisors as indicated by their job offer letter, job
description, their salary increase, and their supervisory training. Schuster said that LPNs’ duties
with the CNAs included direct supervision and overseeing their role with their daily work
activities and making sure they are performing well in their job. In addition, Schuster said that
the LPNs are in charge of discipline; decide if training and further education is needed; and
perform evaluations. Schuster related that LPNs have no offices because they need to be in the
rooms with the residents for medication and treatment and also to oversee the CNAs’ activities.
Unit managers and the DON have offices because they perform mostly office work in
overseeing the entire unit (Tr. 255–258). Similarly, Schuster stated that LPNs do not attend
morning managerial meetings because such meetings are not for the purpose of discussing
patient care or the CNAs (Tr. 287, 288).
With regard to discipline, Schuster testified that where a LPN observed a violation, it is
the LPN’s decision to discipline and LPN has the discretion to discuss the infraction with the
CNA as a learning tool in lieu of discipline. Schuster stated that if discipline is necessary, the
LPN would initiate the process. Schuster stated that disciplinary notice forms are available in
the file cabinet by the nurses’ station, on the computer, from the DON, HR or from the
administrator. Schuster explained that there are two parts in the disciplinary notice. The first
part is what had happened and the decision to give discipline. The second part is the severity of
the discipline. The severity of the discipline is decided by the DON or administrator because the
LPN would not have knowledge of employee’s past record of discipline. The LPN is present
when the discipline notice is issued to the CNA by the DON, HR, or the administrator. Schuster
insisted that the LPN always fills out the disciplinary notice form (Tr. 258–260). Schuster
testified that LPNs are the only ones to fill out the disciplinary forms, but that the DON has the
authority to discipline where the LPNs may not have the knowledge of the infraction or there are
extraordinary circumstances involved in the discipline. Schuster stated that the unit manager or
the DON is usually involved in discipline on time and attendance infractions (Tr. 330).
It is not disputed that on some occasions, the registered nurse or a unit manager had
also issued discipline against a CNA (CP. Exh. 3 and 4; Tr. 308–312). In rebuttal to Tursi’s
testimony that she did not issue discipline to two employees, Schuster said that the weekend
supervisor, Michelle King, who had issued the discipline on Vanisha Wilson and Kalia Brown,
was wrong and is no longer employed at the facility because she could not effectively transition
over in giving the authority to the LPNs to issue the discipline (Tr. 327, 328).
With regard to evaluations, Schuster testified that LPNs are the only ones responsible
for completing evaluations. He stated that evaluations serve to improve the performance of the
CNAs and as a warning for possible future discipline. Schuster testified that there are different
types of evaluation. One form of evaluation is required by State regulations. A second
evaluation instituted at the facility is a weekly checklist evaluation performed by the LPN. He
stated that this evaluation was implemented in March and serves as a tool to help the LPN to
focus on how to better evaluate the CNAs. Schuster mentioned a third evaluation, which he
described as a 90-day evaluation that was implemented in May. He said that the 90-day
evaluation is to see if the new employee is a good match for the position (Tr. 326). Schuster
admitted that the implementation took longer than anticipated. Although there is an annual
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evaluation, Schuster stated that the same evaluation form is used for the 90-day and annual
evaluations. He stated that the top portion with the employee’s name is filled out by someone
other than the LPN because CNAs would work under multiple LPNs. Schuster said it’s the
DON’s responsibility to divide up the evaluations and designate the LPN who had primarily
worked with the CNA to do the evaluation. Schuster insisted that he has no knowledge that a
LPN would do an evaluation and a different LPN would sign off on the same evaluation (Tr.
260–263; 267–269).
Schuster believe that, similar to the issuance of discipline, there were LPNs and unit
managers that had difficulties in transiting to issuing evaluations. Schuster noted that in
Laroc’s evaluation of David Tucker, the evaluation was not completed by Laroc, who had to be
retrained that it was her responsibility to evaluate the employee (Tr. 283, 284; GC Exh. 53).
With respect to another evaluation on employee Tucker, Schuster stated that the unit manager
(Jacqueline Jenkins) should not have completed the evaluation (Tr. 285–287; GC Exh. 54).
With respect to the LPN’s authority over the CNAs, Schuster testified that LPNs may
assign and reassign CNAs and to suggest the proper ratio of CNAs to patients during a
mealtime. Schuster believe that it is within the LPN’s discretion to equalize the ratio of CNAs to
patients. Schuster stated that a LPN may also suggest training and education as was the
situation with Tursi and the training she provided. Schuster reiterated that LPNs do not
regularly attend morning meetings because the meetings are not to discuss a specific CNA
activity or the daily working activities of a CNA. He said that unit managers are present
because of their knowledge of overall operations from nurses, to LPNs to CNAs and for
interacting with the doctors (Tr. 263–266).
Marcie Nowicki (Nowicki) has been employed as the DON since January 1 and had
worked as the DON under Medicenter since October 2013. Nowicki said that the LPN job
description under Medicenter did not include discipline or evaluations, and she could not recall if
the duties included job assignments of the CNAs. Nowicki testified that she was aware that
LPNs under Medicenter would “. . . occasionally. Maybe even rarely” discipline CNAs. She was
also aware that LPNs did not routinely perform evaluations at Medicenter, but they were
involved in the assignments of CNAs to a resident or resident group. Nowicki testified that only
LPNs employed at Medicenter during the 11–7 pm shift had completed evaluations because
there were no supervisors on duty during that shift (Tr.382–384, 400).
Nowicki stated that there were major changes under Coral Harbor and LPNs were
encouraged to evaluate, train, and discipline the CNAs. Nowicki testified that if there is a need
for a change in the assignment, the LPNs would use their discretion. In other aspects of their
position, Nowicki stated that LPNs are not assigned offices because they work on the floor; they
do not attend morning meetings and have no role in developing monthly schedules for the CNAs
(Tr. 391–394, 425).
With respect to discipline, Nowicki stated that the employer wanted the LPNs to use their
professional judgment in deciding whether discipline of a CNA would be appropriate. She
indicated that nothing may be done or if the infraction is a knowledge-based deficiency, the LPN
may decide that training is more appropriate than discipline. Nowicki said that discipline would
be appropriate if the LPN believe that the infraction is a chronic issue. Nowicki said that the
LPN writes up the infraction; goes over the discipline with the CNA and both individuals would
sign the disciplinary notice. Nowicki stated that she might be present on occasions when the
discipline is issued. Nowicki stated that she would review the discipline done by the LPNs and
sign the notice of discipline. Nowicki insisted that she has never revised a disciplinary notice
prepared and issued by a LPN (Tr. 384–387; R. Exh. 6).
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Similarly, Nowicki stated that she has not revised an evaluation prepared by a LPN and
she encourages suggestions made by the LPN on deficiencies noted in the weekly checklist
evaluations. Nowicki cited to Tursi’s suggestion for an in-service training based upon her
assessment of a deficiency noted in the CNAs’ performance. Nowicki testified that she
encourages the LPNs to use their discretion in training, evaluating and in disciplining CNAs (Tr.
387–390). Nowicki stated that the weekly checklist began in spring and was a tool designed to
train and educate the LPNs in providing them with some helpful ideas as to what to monitor in
their supervision of the CNAs when they complete the CNA evaluations. The parties stipulated
that the weekly evaluation started on April 22 through May 15 and resumed on September 6 (Tr.
410, 412–414).
Nowicki admitted that there are some difficulties for the LPNs to transition into
supervisors and a few LPNs, including Champion, Ryan, Tursi, and Laroc, were disciplined by
her for failing to do evaluations of the CNAs (Tr. 390, 391). Nowicki also indicated that she has
signed notices of discipline against a CNA (CP. Exh. 7) and on other occasions, the discipline
notice was signed by the nurse (CP. Exh. 3; Tr. 414–416).
DISCUSSION AND ANALYSIS
The amended complaint alleges that the Respondent violated Section 8(a)(5) of the Act
by failing and refusing to bargain with the Union as the exclusive collective-bargaining
representative of the Respondent’s employees in the LPN unit. It is further alleged that
Respondent violated Section 8(a)(5) of the Act when it withdrew recognition of the Union as the
exclusive collective-bargaining representative of the LPN unit and by unilaterally changing the
terms and conditions of the LPNs without affording the Union the opportunity to bargain over the
changes.
The Respondent did not bargain with the Union over the LPNs, but maintains that as a
Burns successor, it was under no obligation to recognize or bargain with the Union over the
changes in the terms and conditions of the LPNs on the grounds that the LPNs were converted
into supervisors within the meaning of 2(11) of the Act. The counsel for the Respondent
maintains that the General Counsel has failed his burden to show that Coral Harbor is a
perfectly clear successor.
1. The Burns Doctrine
In NLRB v. Burns International Security Services, 406 U.S. 272 (1972), a successor
employer must bargain with the employee representative when it becomes clear that the
successor has hired its full complement of employees and that the union represents a majority
of those employees. In Burns, the Court stated:
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
appropriate to have him initially consult with the employees’ bargaining representative
before he fixes terms.
The Board has held that when a business changes hands, the successor employer must
take over and honor the collective-bargaining agreement negotiated by the predecessor. In Fall
River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 43 (1987), the Supreme Court clarified
the Burns doctrine and held that an employer that purchases the assets of another is required to
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recognize and bargain with a union representing the predecessor’s employees when (1) there is
a substantial continuity of operations after the takeover and (2) if a majority of the new
employer’s workforce in an appropriate unit consists of the predecessor’s employees at a time
when the successor has reached a substantial and representative complement.
Under Burns, determining whether a new company is a successor “is primarily factual in
nature and is based upon the totality of the circumstances of a given situation.” Fall River
Dyeing, 482 U.S. at 43. Thus, a finding of successorship imposes an obligation on the
Respondent to bargain with the union of its predecessor. Absent discrimination, even a
successor is ordinarily free to set the initial terms on which it will hire the employees of a
predecessor and “. . . is not bound by the substantive provisions of the predecessor’s collective
bargaining agreement.” Burns Int’l Sec. Servs., Inc., at 272, 294.
The rule of successorship imposes an obligation on the Respondent to bargain with the
union of its predecessor. Fall River Dyeing, 482 U.S. at 36. “If the new employer makes a
conscious decision to maintain generally the same business and to hire a majority of its
employees from the predecessor, then the bargaining obligation of 8(a) (5) is activated. This
makes sense when one considers that the employer intends to take advantage of the training
work force of its predecessor.” Id. At 41–42.
2. The Respondent did not Clearly Announce its
Intent to Change Working Conditions
In Spruce Up Corp., 209 NLRB 194 (1974), the Board interpreted the “perfectly clear”
caveat in Burns as “restricted to circumstances 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 establish a new set of conditions prior to
inviting former employees to accept employment.” Id. at 195 (fn. omitted).
The counsel for the General Counsel argues that “. . . there was substantial continuity of
the business enterprise because the Respondent’s operation encompasses the same job, with
the same working conditions, in the same locations, for the some complement of residents.” The
General Counsel maintains that there is no evidence of record to show that the Respondent
made any significant changes to the nursing tasks performed by the LPNs and view their job
functions as “…essentially unaltered” citing to Sierra Realty Corporation, 317 NLRB 832, 835
(1995) (GC Br. at 48–50).
The counsel for the Respondent argues that the General Counsel failed his burden of
proof to show that Coral Harbor was a perfectly clear Burns successor “. . . on the basis of the
language in paragraph 11(b) of the APA; its pre-hiring notice to the Union about its intent to
convert the LPN’s positions to supervisors, and the express language of its December 15, 2015
offer letters to the LPNs and job descriptions advising them that they (have) supervisory duties
with respect to discipline and evaluation of bargaining unit CNA employees and others, as well
as the pre-employment training it provided to them concerning the exercise of their new
supervisory functions” (R. Br. at 12).
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a. The Union did not Fail to Act When it Received the
Asset Purchase Agreement
The Respondent argues that the Asset Purchase Agreement in paragraph 11(b)
expressly stated that offers of employment except for the service bargaining unit employees are
subject to new employment terms as determined by the buyer and that the Union failed to
request bargaining or request further information about the purchaser’s intent until December
15, 2015 (R. Br. at 18, 19; GC Exh. 10). The Union, through labor counsel Hansen, had
received a copy of the APA on October 7, 2015. Hansen testified that paragraph 11(b) would
include other employees, like the LPNs. The Union objected to the change in the terms and
conditions of the LPNs when Hansen received the December 15 letter from Louis Capozzi, Jr.,
legal representative to the Respondent, regarding the Respondent’s intent to convert the LPNs
to supervisors (GC Exhs. 13 and 14).
In my opinion, the language of the APA is an understanding between the seller and
buyer over the terms and conditions of the sale. The Union was not involved in the negotiations
of paragraph 11 of the APA and was not party to the signing of the APA on September 11 and
could not object to the terms of the APA. I find that in August, the Union was still under the
impression at the bargaining table with Medicenter that there would be no changes in the terms
and conditions of the LPNs. Molina credibly testified that there was no mention as to whether
there would be changes in LPN duties or whether they would be converted to supervisors during
the Union’s bargaining session with Medicenter on August 20. Hansen confirmed that the topic
over the LPNs was not discussed after the August 20 bargaining session because the
predecessor complained that including the LPNs in the bargaining with the service and
maintenance unit employees would be too expensive. Clearly, this is indicative to me that the
parties would be bargaining for a separate LPN contract after completing the agreement on the
service and maintenance employees.
I find also that Hansen had indeed complained to Corradino as early as September 24,
2015 that the Respondent is not a perfectly clear successor. In her letter to Corradino, Hansen
stated that
any claim in the sales agreement that the Purchaser is not a “perfectly clear successor”
has no legal significance. Whether or not the Purchaser is a perfectly clear successor is
a legal determination that can only be made by the National Labor Relations Board (GC
Exh. 6).
Further, when the Respondent informed the Union of its intention to hire LPNs as
supervisors at the facility and to exercise its rights as a Burns successor to unilaterally set initial
terms and conditions for the LPNs on December 15, the Union objected on December 17 to the
Respondent’s intent to convert LPNs to supervisors or to impose any additional LPN job duties
without bargaining with the Union (GC Exh. 13). Hansen’s reply in a letter date December 17 to
Capozzi, Jr. stated that the Union demand bargaining on behalf of the LPN bargaining unit upon
the Respondent’s assumption of the operations (GC Exh. 14).
Under such circumstances, I find it reasonable for the Union to believe that negotiations
for a first contract with the recently certified LPN employee unit would be with the purchaser and
that it had in fact disputed the legality of the Respondent’s intent to change the terms and
conditions of the employees almost 3 months earlier than December 15. In addition, while
paragraph 11 of the APA may have put the Union on some notice that changes with the LPNs
may be forthcoming, it certainly did not, as argued by the Respondent, put the LPN employees
with notice of “sufficient portent of changes in their terms and conditions of employment” (R. Br.
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at 19). Unlike Ridgewells, Inc., 334 NLRB 37 (2001) cited by counsel for the Respondent, this is
not a situation where the employer actually announced changes to put employees on notice that
a new set of employment conditions would be in effect. Here, the language to set new
employment conditions was imbedded in one paragraph of a 32-page document that was
provided to counsel for the Union. Nothing in the record suggest that the APA was provided to
the LPNs or that Hansen read the paragraph language to the LPNs. None of the LPN
employees read or would reasonably have understood paragraph 11. In my opinion, paragraph
11 of the APA did not serve notice on the LPNs that their employment conditions would be
subject to changes.
b. The Job Description, Job Offer, Employee Handbook and
In-Service Training did Not Clearly Establish New Set of Working Conditions
A successor employer has an obligation to bargain over initial terms when it “displays
intent to employ the predecessor’s employees without making it clear that their employment will
be on different terms from those in place with the predecessor.” Creative Vision Resources,
LLC, 364 NLRB No. 91, slip op. at 3 (2016).
The Respondent argues that the job offer, along with the job description and the new
employee handbook expressly advised and served clear notice to the LPN applicants of the
announced changes in their job duties. Munk wanted the transition of LPNs to supervisors to go
“as smooth of possible” at the time of implementation (on January 1).
The counsel for the General Counsel argues that the job description, job offer, job
advertisements, in-service training, and identification badges for LPNs are indicative of a sham
that the Respondent was actually hiring LPNs and not supervisors (GC Br. at 46–48).
It is painfully obvious that the hiring process of the LPNs was not as transparent to the
applicants as described by Munk and Schuster. For a number of factors, I find that the hiring
process was designed to limit the LPN applicants’ ability to assess critical information before
accepting the position. I find it troublesome that some job offers did not include any mention of
a supervisory position; some job descriptions were not acknowledged and signed by the
applicants; applicants were informed that there would be no changes in their job duties from
their former position with Medicenter and told to just sign the job offer; the individual distributing
the job offers was not in the position to answer questions; the testimony of the LPNs was
inconsistent as to the nature and duration of the LPN supervisory training; the applicants were
not informed of a wage increase until after they accepted the position at least 2 weeks into their
employment; and the job advertisements after January 1 did not state that the position was for a
supervisor.
Further, Schuster did not want to provide all the information on the LPN’s supervisory
role until after the applicant accepted the position. Munk testified that he was not particularly
involved in the review of the completed LPN job applicant documents. He admitted that the new
HR person hired to oversee the LPN application process was not fully familiar with the process
and that paperwork was lost or not corrected. Munk purposely placed an individual not involved
in the hiring process to give out the job offers in order to limit the inquiries that the applicants
may have had about the LPN position.
Contrary to the expressed desire of Munk, the hiring process for the LPNs was far from
smooth. At best, the hiring process was haphazardly done. At worst, the process was designed
to withhold changes to the duties of the LPNs from the applicants. In my opinion, it is clear that
Schuster and Munk did not want to fully inform the LPN applicants as to the extent of their job
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duties. Munk placed someone who was unfamiliar with the aspects of the position to give out
the job offer and testified that this was done purposely to prevent answering questions that the
job applicants may have had about their position. Schuster admitted that some job offers did
not have the supervisory language stated in the offer and said in hindsight that was a “mistake.”
His testimony is inconsistent on this point inasmuch as Schuster also testified that when the
facility is seeking applicants for supervisory positions in other departments, the job
advertisement would specifically state that it was a supervisory position. Here, the job
advertisement of the LPN position did not state it was for a supervisory position. Some
applicants were not informed that they were applying for a supervisory position (GC Exh.
23(i)).10 None of the LPN applicants were offered the position with a wage increase
commensurate with their supervisory position and the decision to increase wages was not made
until after they were hired on January 1.
Higgins attended a meeting along with approximately 50 other employees of Medicenter
in December prior to receiving her job offer and was informed by Schuster that their jobs were
secure and things would remain the same, but there would be changes and that “change is
good.” Her testimony was consistent with the other witnesses testifying that there would be
some changes. However, the changes in the LPN position was never announced or articulated
at the two staff meetings in December. Higgins testified that she was given a job application
and was asked to meet with someone at the facility’s library. Higgins received a job description
of her new position and a new employee handbook. Higgins’ job description is captioned
“Nurse Supervisor (LPN).” The job description informed the new hire that the “The primary
purpose of your position is to provide direct nursing care to the residents, and to supervise the
day-to-day nursing activities performed by CNAs and by other nursing personnel” (GC Exh. and
27). The handbook also stated that LPNs are considered supervisors by the facility and that
they have the responsibility to issue discipline (oral and written warnings) and for evaluating
employees in the nursing department.
However, Higgins credibly testified that she was not aware that she was applying for a
supervisory position when offered the position and was informed by the person giving out the
job offer that everything was going to remain the same. Higgins was then asked to sign the job
offer, which she did. Further, the new employee handbook is voluminous and would have
required Higgins and other applicants to go home and review the handbook before accepting
the position.
Tursi was called by a receptionist to apply for the LPN position and did so. After
completing the application, Tursi received a call from the receptionist to meet at the facility’s
library. At the library, Tursi received a letter of offer and handbook. Tursi was also told by an
unidentified person that nothing was going to change. Tursi was then asked to sign the job
offer. Tursi’s job offer did not mention that she was hired as a supervisor.
Laroc was called by the receptionist to get a job application for the LPN position. The
job offer for Laroc included the same language as in Higgins’ offer regarding her role as a LPN
supervisor. Laroc could not recall if she received a job description or the new employee
handbook. Laroc’s job description was captioned “Nurse Supervisor (LPN)” (R. Exh. 2). Laroc
said she did not pay attention to the documents in the packet and just signed the documents.
Laroc said she was never verbally told there were any changes in the terms and conditions.

10 For example, Nicole Christ was offered a position on August 16, 2016 for “. . . the position of Licensed
Practical Nurse (LPN) with Marquis Health Services for the nursing facility known as Coral Harbor Rehabilitation and
Healthcare Center . . .” Her offer did not mention that it was for a supervisory position.
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Roberta Bernard was hired as a LPN at the Coral Harbor facility in February. She
testified receiving a copy of her job description and an employee handbook. Bernard’s job
description is captioned “Nurse Supervisor (LPN).” She does not recall receiving a job offer.
Bernard acknowledged and signed the job description. Bernard did not recall receiving a job
offer, but was told she was being hired as a supervisor when she applied for the LPN position.
Schuster explained that applicants for the LPN position were not initially informed that
they were applying for a supervisory position. Schuster also stated that the job posting for LPNs
after January 1 did not state that it was a LPN supervisor position. Schuster related that he
wanted to have all the job applicants hired first and then the Respondent could subsequently
discuss their supervisory duties with them.
Schuster admitted that while he oversaw the hiring process for the LPNs, he did not do
the actual hiring. He stated that some corporate people assisted in the hiring. Schuster was not
involved in distributing the job offers, but insisted that he was present on some occasions if
there were any questions, but was not sure exactly when and what he told the employees.
None of the LPN witnesses testified that they had conversed with Schuster over the prospective
changes in the position.
Munk admitted that the wage increase was not included in the initial job offer. Munk
stated that the decision to give the LPNs a wage increase was made after the majority of the
Medicenter LPNs were hired on January 1. Munk said that Respondent purposely had
someone unfamiliar with the LPN job duties distribute the job offer because he knew that the job
applicants would have numerous questions with their new duties and responsibilities and he did
not want the Respondent to communicate all the aspects of the new model at that time.
It seems strange to me that while some LPN applicants were given job offers with the
LPN supervisory language noted above, other LPN applicants before and after January 1 were
not informed that they were applying for a supervisory position and their job offers did not
include the supervisory language. Job advertisements after January 1 did not mention that the
Respondent was hiring for LPN supervisors. It also seems untenable to me that while Munk
and Schuster wanted a smooth hiring transition, they also wanted to keep the LPN applicants in
the dark about their new position by having someone not familiar with the job duties to give out
the job offer and to not have the HR department involved in fielding questions about the
position. It makes little sense to me for the Respondent to maintain that everything was going to
be explained to the employees after they accepted the offer as testified by Schuster.
I would also question the validity that the LPN job applicants actually were offered the
time and opportunity to read all the materials given to them when offered the position. All the
LPNs hired prior to January 1 consistently testified that they attended a full staff meeting with
other employees and then were ushered or summoned to the library and given job offers. Most
were told just to sign the offers. None testified that they took the time to read the entire
package. Higgins could not recollect what she received. Laroc was given the opportunity to
read the job offer but could not recall if she received a job description and the new employee
handbook. Tursi was told there were no changes in her former position as a LPN with
Medicenter and then instructed to sign the job offer. Tursi’s job offer did not mention it was for a
supervisor (compared R. Exh. 3 with GC Exh. 25).
Further, 2 days later, the LPNs were given in-service training. The Respondent stated
that the training was to explain the new supervisory responsibilities of the LPNs. The training
was provided in two sessions, with five LPNs attending in the first session and eight in the
second session (GC Exhs. 28, 29). The Respondent argues that the LPN supervisory training
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clearly articulated the changes and provided the LPNs with skills, such as evaluating and
disciplining employees; using independent judgment and discretion as a supervisor and other
aspects of the employee handbook.
Higgins said the training lasted less than 15 minutes. She insisted that the training did
not cover evaluations of CNAs or that the LPNs were now responsible for evaluating CNAs.
Tursi also attended the LPN training. She testified that the training was on discipline regarding
the CNAs. Tursi said that the training presentation took 30 minutes and did not cover
evaluations. Laroc also attended training. Her training covered the new job description and
supervisory duties over the CNAs. Laroc said that the training was also on disciplinary policy
and evaluation of employees. Laroc believed that the presentation lasted over an hour.
At best, the testimony by the LPNs on the topics covered and the duration of the training
is inconclusive to establish that everything presented in the PowerPoint training (R. Exh. 1) was
in fact covered on December 16.
Further, the LPNs’ title when hired was reflected on their identification badges as “LPN”
and did not clearly state their putative supervisory title. By virtual of their title, the LPN and
other employees would not know that they were supervisors. Higgins said she was provided an
identification badge designating her as a LPN when she was hired. She testified that in
September or October, she received a new ID badge designating her as a “LPN Nursing
Supervisor.” Tursi recalled that she received a new ID badge with “supervisor” title in
September. Laroc has an identification badge that designated her as a LPN supervisor that she
received in September. I find the changing of the LPN’s badge title from “LPN Nursing
Services” when they were initially hired in January to “LPN Supervisor” badges (GC Exhs. 33
and 34) 8 months later and shortly prior to the commencement of this hearing as highly suspect
to cloth the LPNs with authority that they did not have.
Credible testimony shows that the timing in changing the identification badges from
“LPN” to “LPN Supervisor” was at the time that the investigation on the NLRB charges were
proceeding against the Respondent. No explanation was provided as to why the initial
identification badges did not have the title “supervisor” and why the title on the badges changed
several months after the January 1 takeover of the facility.
I find that at the time the jobs were offered to the LPNs, the Respondent failed to timely
inform the applicants their wage and working conditions would change. Here, my findings as to
the manner in which the LPN applicants were hired and the effort to obfuscate the duties and
responsibilities of the LPNs as supervisors until after their acceptance of the job offer is
indicative that the Respondent failed to clearly announce its intent to establish a new set of
conditions prior to the acceptance of employment by the LPNs.
My determination that the Respondent was obligated to bargain with the Union does not
turn on whether or not Coral Harbor had misled the employees into believing that they will be
retained without changes in their wages and conditions of employment. Rather, the obligation
to bargain with the Union turns on whether the Respondent was justified in its refusal to bargain
because it had, in fact, converted the LPNs to supervisors within the meaning of 2(11) of the
Act. A review below of the actual supervisory authority of the LPNs shows that they are not
supervisors within the meaning of 2(11) of the Act.
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3. The Licensed Practical Nurses are Not Supervisors as
Defined by Section 2(11) of the Act
A “supervisor” is defined by Section 2(11) of the Act as someone who has the authority,
in the interest of the employer, to perform and/or effectively recommend at least one supervisory
action that indicates alignment with management interests. The list of supervisory tasks to be
considered includes the authority to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward or discipline other employees, or responsibly direct them, or adjust their
grievances, or effectively to recommend such action. Additionally, in order to be deemed a
supervisor, the individual must exercise “independent judgment” that is “not of a merely routine
or clerical nature” but requires the use of independent judgment when performing one or more
of these tasks. Kentucky River Community Care, Inc., 532 U.S. 706, 712, 713 (2001).
A finding of supervisory status is warranted only where the individuals in question
possess one or more of the indicia set forth in Section 2(11) of the Act, above. Providence
Hospital, 320 NLRB 717, 725 (1996); The Door, 297 NLRB 601 (1990); Phelps Community
Medical Center, 295 NLRB 486, 489 (1989). The statutory criteria are read in the disjunctive,
and possession of any one of the indicia listed is sufficient to make an individual a supervisor.
Providence Alaska Medical Center, above, 320 NLRB at 725; Juniper Industries, 311 NLRB
109, 110 (1993). The statutory definition specifically indicates that it applies only to individuals
who exercise independent judgment in the performance of supervisory functions and who act in
the interest of the employer. NLRB v. Health Care & Retirement Corp. of America, 511 U.S.
571, 574 (1994); Clark Machine Corp., 308 NLRB 555 (1992).
The Board analyzes each case in order to differentiate between the exercise of
independent judgment and the giving of routine instructions, between effective recommendation
and forceful suggestions, and between the appearance of supervision and supervision in fact.
The exercise of some supervisory authority in a merely routine, clerical or perfunctory manner
does not confer supervisory status on an employee. Juniper Industries, above, 311 NLRB at
110. The authority effectively to recommend “generally means that the recommended action is
taken with no independent investigation by superiors, not simply that the recommendation is
ultimately followed.” ITT Lighting Fixtures, 265 NLRB 1480, 1481 (1982) (emphasis in original).
The sporadic exercise of supervisory authority is not sufficient to transform an employee into a
supervisor. Gaines Electric, 309 NLRB 1077, 1078 (1992); Ohio River Co., 303 NLRB 696, 714
(1991), enfd. 961 F.2d 1578 (6th Cir. 1992).
I note some general principles at the outset. In determining supervisory status, the
Board is not guided by an individual’s job title or classification but by actual duties, and in
determining such duties the Board takes into account, inter alia, the type of work done and the
responsibility exercised in the performance of the job.
Contrary to the position of the Respondent, a review as to whether LPNs possess
supervisory authority to assign and responsibly direct CNA employees is not based on the job
description, identification badge, job title, employee handbook, job offer or training given to the
LPNs or through the testimony of Munk and Schuster that LPNs exercise that authority. The
Board has consistently held that Sec. 2(11) supervisory status cannot be established merely by
“paper” authority or conclusory testimony. Lakewood Health Center d/b/a Chi LakeWood
Health, 365 NLRB No. 10 at fn. 1 (2016). Peacock Productions of NBC Universal Media, 364
NLRB No. 104, slip op. at 2–3 and fn. 6 (2016); G4S Regulated Security Solutions, 362 NLRB
No. 134, slip op. at 2–3 (2015), and cases cited therein. As such, job descriptions and job titles
are merely paper authority and not given controlling weight by the Board. Rather, “what the
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statute requires is evidence of actual supervisory authority visibly translated into tangible
examples demonstrating the existence of such authority.” Id. citing Oil, Chemical & Atomic
Workers v. NLRB, 445 F.2d 237, 243 (D.C. Cir. 1971), cert. denied 404 U.S. 1039 (1972).
Similarly, the Board’s determination is based on the existence of authority rather than on
assertions that supervisory authority has been conferred on a particular person. Also, routine
direction of the type customarily exercised by experienced employees over those less skilled
does not confer supervisory status within the meaning of the Act. Further, responsibility for
making work assignments in a routine fashion does not make one a supervisor, nor does the
assumption of some supervisory authority for a temporary period create supervisory status.
West Penn Power Co. v. NLRB, 337 F.2d 993, 996 (3d Cir. 1964); Southeastern Cast Stone,
Incorporated 185 NLRB 688, 691–692 (1970); Mid-State Fruit, Inc., 186 NLRB 51 (1970); Beth
Israel Medical Center, 229 NLRB 295, 295 (1977).
The burden of establishing supervisory status is on the party asserting that such status
exists. Northcrest Nursing Home, 313 NLRB 491, 496 fn. 26 (1993). Here, the Respondent has
the burden to prove by direct evidence that the LPNs are supervisors. Kentucky River, above;
Franklin Home Health Agency, 337 NLRB 826, 829 (2002). The Board has cautioned that the
supervisory exemption should not be construed too broadly because the inevitable
consequence of such a construction would be to remove individuals from the protections of the
Act. Northcrest Nursing Home, above, 313 NLRB at 491. The Respondent has not met its
burden to establish that the licensed practical nurses are supervisors as defined by 2(11) of the
Act.
a. The LPNs do Not Have the Authority to Assign,
Responsibility to Direct CNAs with use of Independent Judgment
Higgins testified that she gives assignments to the CNAs, but that the assignments and
work schedules of the CNAs had already been prepared and completed by either the staff
coordinator or the DON. At most, Higgins testified that she would add or subtract CNAs on the
assignment chart to ensure an even distribution of workers to residents for each assignment or,
on occasions, she would assign a CNA to a patient that may have arrived to the facility
overnight and, as such, would not be accounted for in the work assignment. Higgins testified
that she does not attend morning meetings with other managers and is not involved in planning
the care for the patients. Higgins testified that she would review the assignment chart for the
CNAs, count her medications for the patients and begin her day. Higgins never testified that
she was responsible for the daily activities of the CNAs or to provide them with overall
assignments that are outside of their routine activities. Higgins has called or texted CNAs about
their work schedules, but only if instructed by the DON and only upon approval by a supervisor
could she find a replacement to provide coverage when a CNA calls in sick. Higgins cannot
approve any leave request from a CNA.
Tursi does not attend morning managerial staff meetings. Tursi said that the CNAs were
already given permanent assignments and she would need permission from a supervisor to
reassign a CNA. Tursi said her role was to merely put the name of the CNA on the assignment
sheet. Tursi said that the CNA daily assignment sheet is completed by the staffing coordinator
and she has no responsibility in the assignments of the CNA. Tursi also confirmed that she
does not have the authority to approve leave or revise the work schedules of the CNA.
Laroc stated that she would count the prescribed drugs in her med cart and then begin
her day in distributing the medication and caring for the residents. She did not testify to any
interactions with the CNAs at the start of her day.
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With regard to the training, Higgins has not been involved in training for the CNAs. She
said in-service training is performed by the DON or by unit manager/physician. Higgins has
provided in-service training on a presentation that was already prepared for her. Higgins
insisted she had no role in preparing the training. Tursi testified that she conducted an in-
service training with CNAs. She developed the training with others because they felt that the
CNAs were deficient in a particular area. Tursi said that the training was a group effort and took
approximately 10 minutes. Laroc and Bernard did not testify that they were involved in training
CNAs or other employees.
There is no record evidence to establish that the LPNs transfer, hire, fire, lay off, recall,
promote, or reward CNAs or any other employees. The evidence concerning the authority of the
LPNs to recommend effectively the hiring of other employees is inconclusive because only
Laroc testified that she recommended individuals for a job, but there were no indications that
her recommendation was acted upon.
In Oakwood Healthcare, Inc., 348 NLRB 686 (2006), the Board found that certain charge
nurses in an acute-care hospital fell within the definition of “supervisor” set forth in section 2(11)
of the Act. In reaching its decision, the Board evaluated the following terms and phrases:
assign, responsible direction, and independent judgment. The Board construed the term
“assign” to refer to:
the act of “designating an employee to a place (such as a location, dept., or wing),
appointing an employee to a time (such as a shift or overtime period), or giving
significant overall duties, i.e., tasks, to an employee.” Additionally, assign for “purposes
of Section 2(11) refers to the [presumed supervisor’s] designation of significant overall
duties to an employee, not to the [presumed supervisor’s] ad hoc instruction that the
employee perform a discrete task.
Here, the LPNs are not tasked with the responsibility to appoint a CNA to a time or
location and to give significant overall duties to an employee. The LPNs credibly testified that
the work schedule for the CNAs had already been prepared and completed when the LPNs
arrived for their morning shifts. DON Nowicki confirmed that the CNA schedules are determined
by her or by the staffing coordinator. At most, a LPN may adjust the assignment ratio of a CNA
to the complement of residents to equalize the distribution. Further, the CNAs already know
their responsibility and assigned duties. None of the LPNs testified that they were required to
revise, modify or change any significant duties of a CNA or to direct an employee to perform
significant overall duties. As such, I find that the LPNs did not assign CNAs to work schedules,
duties or significant overall duties.
Next, the Board found in Oakwood Healthcare that to establish accountability for
purposes of responsible direction, it must be shown that: (1) the employer delegated to the
putative supervisor the authority to direct the work and the authority to take corrective action, if
necessary and (2) there is a prospect of adverse consequences for the putative supervisor if
he/she does not take these steps.
In its analysis, the Board found in Oakwood that the charge nurses do not responsibly
direct nursing staff because the employer failed to show that the individuals were accountable
for the performance of the task. Although charge nurses delegated various tasks, the Board
found Oakwood offered no evidence that the “charge nurses are subject to discipline or lower
evaluations if other staff members fail to adequately perform” these delegated tasks. As in
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Oakwood, there is nothing here to show that the LPNs would be subjected to discipline, adverse
consequences or a lower evaluation if a CNA failed to adequately perform his or her duties.
With respect to independent judgment, the Board found
an individual must at minimum act, or effectively recommend action, free of the control of
others and form an opinion or evaluation by discerning and comparing data. However, a
judgment is not independent if it is dictated or controlled by detailed instructions, whether
set forth in company policies or rules, the verbal instructions of a higher authority, or in
the provisions of a collective bargaining agreement.
The Board found in Oakwood that some of the charge nurses on patient-care units
exercised “independent judgment” by taking into account such factors as: (1) medical condition
and needs of a patient; (2) nurses’ particular skill sets in relation to patients’ conditions and
needs; and (3) the quantity of work that should be assigned to each nurse. However, no such
factors exist in this situation. Here, the CNAs already have assignments and no instructions are
needed by the CNAs to perform their assignments. None of the LPNs testified that they gave
any verbal instructions or monitor the daily activities of the CNAs. The LPNs are too busy with
their own assignments in doling out medications and caring for residents to be actively involved
with assessing the quality and quantity of work assigned to the CNAs.
The legislative history of Section 2(11) makes it clear that Congress intended to
distinguish between employees performing minor supervisory duties and supervisors vested
with genuine management prerogatives, and did not intend to remove individuals in the former
category from the protections of the Act. S. Rep. No. 105, 80th Cong., 1st Sess., 4 (1947). The
legislative history also shows that Congress considered true supervisors to be different from
lead employees or straw bosses who merely provide routine direction to other employees as a
result of superior training or experience. Id. Providence Alaska Medical Center, above, 320
NLRB at 725; Ten Broeck Commons, 320 NLRB 806, 809 (1996).
In sum, I find and conclude that although LPNs perform some scheduling functions and
direct employees, the evidence falls short of demonstrating that they exercise independent
judgment in these aspects of their duties. The employer provides the LPNs with a master
schedule setting forth the hours and shifts on which the CNA employees are to work. A LPN
may not adjust the schedule based on employee requests, but, on occasions, adjust the ratio of
CNAs to residents. A LPN may not approve or deny leave without permission from a unit
manager or the DON. A LPN may not substitute a CNA or to replace one who is unable to
work. As to direct the CNAs’ daily tasks, the record shows that staffing coordinator or DON
dictate the jobs each shift is to perform and the work is already parceled. CNAs know how to
perform their tasks and LPNs thus do not need to provide day-to-day direction. The record
discloses only very minor instances in which a LPN has directed a CNA to take certain actions,
such as reassigning a CNA to a different unit. This is routine, rather than responsible, direction
within the meaning of Section 2(11) of the Act. The training provided to the CNAs by Tursi and
another LPN was not based upon Tursi’s independent judgment but rather, as she testified, by a
group determination of the LPNs and the registered nurses that the CNAs needed training in a
particular area. The approval of the training was not determined by Tursi. Providence Alaska
Medical Center, above, 320 NLRB at 725; Ten Broeck Commons, above, 320 NLRB at 809.
b. The LPNs Do Not Have Authority to Discipline CNAs and Others
Higgins testified that she cannot fire or hire an employee, but has issued disciplines
beginning on May 4. Higgins said she issued two disciplines on the same employees. Although
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Higgins admittedly was informed by Schuster to proceed with the discipline “as appropriate,” it is
also clear that DON Nowicki was responsible for reviewing the personnel file, to which Higgins
did not have access, and in determining the appropriate severity of the discipline. Higgins was
informed by the DON as to the type of severity of the discipline.
Tursi has prepared four disciplinary actions as a LPN but could not independently issue
discipline without first consulting with her manager (GC Exhs 44–47). She testified that she
would consult with the DON before issuing the discipline and has to get the disciplinary notice
forms from the DON. Tursi testified that she cannot discipline without first discussing the matter
with DON or a supervisor and she would be instructed by a supervisor to write the discipline on
a CNA. Tursi said she has completed the notice of discipline by composing and writing the
language herself. However, the severity of the discipline is decided by the DON or a supervisor.
On other occasions, Tursi testified that a supervisor would write the discipline for her
signature. Tursi testified that Michelle King, a weekend supervisor, had written a discipline
notice on employee Vera Grey and then King asked Tursi to give the notice of discipline to the
employee. The written portion of the notice was already completed by King. Tursi said that the
same procedure was followed on a second discipline with a different employee. On a third
discipline, Tursi wrote the notice of discipline, but was instructed to write the discipline by
supervisor Lauren Sutton.
Bernard has issued three disciplines, but the disciplines were prepared by her manager
for Bernard’s signature and issuance. Bernard testified she had made the formal
recommendations and the subsequent discipline was done by the unit manager. Bernard
testified that on three other disciplinary actions, she either was instructed to write the discipline
or the discipline was written by someone else for her signature. On one occasion, Bernard said
that she did not observe the infraction, so the discipline was written by Schuster after a
discussion with her and a social worker. Bernard was asked by Schuster whether the severity
of the discipline was appropriate and whether Bernard felt that the infraction warranted a
disciplinary action. She said that the final outcome was a suspension of the employee done by
Schuster. Bernard further testified that on another occasion, she issued two disciplinary actions
to the same employee. Bernard said that the two disciplinary actions were written by the unit
manager based upon information she provided to the manager. Bernard admitted that the unit
manager made the decision to discipline this employee.
Laroc has not disciplined anyone, but recalled signing a disciplinary notice on two
employees that was completed by the DON on January 18 and 26. Laroc was merely the
conduit for the issuance of discipline by Nowicki. Laroc testified that she gave discipline to the
employees, but the actual disciplinary notice was written by Nowicki. Laroc believes that a
second discipline was written by the DON because Laroc also did not witness the infraction.
DON Nowicki insisted that she has never revised a disciplinary notice prepared and
issued by a LPN. However, the severity and type of discipline was determined by Nowicki. In
all disciplinary actions proffered at the hearing, either DON Nowicki or a manager had
determined the severity and type of discipline for the employee and not the LPN. Nowicki stated
that she would review the discipline done by the LPNs and sign the notice of discipline.
Finally, the collective-bargaining agreement to which the CNAs is a party provides that
grievances concerning discipline may be filed in writing with the facility after informal
discussions with the employee’s immediate supervisor have proven unsuccessful or have not
been pursued (JT. Exh. 1). The LPNs testified that they have not been involved in resolving
grievances or in meetings involving any grievances on the disciplinary actions that were taken
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on the CNAs. The record shows that LPNs have not been involved in resolving employee
complaints about disciplinary issues, assignments, and other matters within their purview. Even
if LPNs are somewhat involved in the grievance process, and I find that they are not, the Board
has held that authority to resolve these sorts of minor disputes is insufficient to establish
supervisory status. Riverchase Health Care Center, 304 NLRB 861, 865 (1991).
In my opinion, a similar conclusion is warranted with respect to the role of LPNs in the
issuance of discipline. All discipline must be cleared with the DON or manager and the DON or
manager must approve all recommendations of discipline of employees. LPNs clearly report
instances of misconduct and poor performance and have, on some occasions, specifically
recommended that discipline be imposed. However, in all instances of record, the employer has
determined whether discipline was appropriate and if so, the severity of the discipline. In these
circumstances, it cannot be said the LPNs’ recommendations are effective or that the record
conclusively shows that they possess the indicia of supervisory authority. On other occasions,
the narrative in the notice of discipline was written by the unit manager or the DON and the LPN
instructed afterwards to issue the discipline. LPNs are also not involved in the grievance
proceedings on these disciplines and none testified that their input was requested by the
employer in the grievance proceedings. Accordingly, I find that the employer has not met its
burden of establishing that LPNs have authority to impose or effectively recommend discipline in
the exercise of independent judgment within the meaning of Section 2(11). Ten Broeck
Commons, above, 320 NLRB at 809; Northcrest Nursing Home, above, 313 NLRB at 497;
Hydro Conduit Corp., 254 NLRB 433 (1981).
c. The Evaluations of the CNAs are Not Determinative of
LPN Supervisory Status
In Modesto Radiology Imaging, Inc., 361 NLRB No. 84 (2014), the Board held that
The authority to evaluate is not one of the indicia of supervisory status set out in Section
2(11) of the Act. See Elmhurst Extended Care Facilities, 329 NLRB 535, 536 (1999).
Nevertheless, the Board analyzes the evaluation of employees to determine whether it is
an “effective recommendation” of promotion, wage increase, or discipline. Phelps
Community Medical Center, 295 NLRB 486, 490 (1989). If the evaluation does not, by
itself, directly affect the wages and/or job status of the individual being evaluated, the
Board will not find the individual performing the evaluation to be a statutory supervisor
on that basis. See Williamette Industries, Inc., 336 NLRB 743, 743 (2001). There must
be a direct correlation between the employees’ evaluation and their wage increases
and/or job status. See, e.g., Ten Broeck Commons, 320 NLRB 806, 813 (1996).
In evaluating employees, Higgins testified that she only started completing evaluations of
CNAs in April. Higgins recalled completing evaluations for two CNAs. Higgins was instructed
by her supervisor to complete the evaluations. Higgins stated that her supervisor did not tell her
what to fill out on the evaluation of the two employees. Higgins stated that she has completed
additional evaluations, but did not recall how many since the two evaluations done in May.
Tursi has completed evaluations of the CNAs but stated she did not start until March
2016, shortly after she was subpoenaed by the NLRB. Tursi said that she completed her first
evaluation of an employee on May 14. She said that the form was received from the DON and
Tursi was given instructions on how to evaluate the employee. Tursi insisted that part of this
evaluation form was not in her handwriting and some of the numerical ratings of the employees
were not done by her. Tursi has completed evaluations on at least three other employees on her
own without any influence or directions from a manager.
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Laroc testified that she has signed evaluations at the directions of the DON. She
testified that she has completed “a couple” of evaluations. Except for the name of the employee
to be evaluated on the top front of the appraisal form, Laroc completed the rest of the form,
including the evaluation ratings for the employee. Laroc stated that she has completed
evaluations for two employees and had done so independent of any influence from her
superiors.
Bernard has completed evaluations of CNAs during her employment with the
Respondent. She insisted that she was not influenced by management on her evaluations of
the employees.
I find that LPNs are involved in the evaluations of the CNAs. All LPNs, as noted above,
testified that they evaluate the employee by providing a numerical rating for each of the job
elements, although in some instances, the ratings had already been provided in the evaluation
by someone else. The name of the employee is completed by a manager of the DON, which is
not unusual. I also do not find it noteworthy that the responsibility of completing the evaluations
occurred during the commencement of the NLRB charges in this complaint. The timing could
merely be happenstance given the transition of the facility to the new owners a short 2 month
earlier.
However, I also find that the employer failed to meet its burden of establishing that LPNs
exercise 2(11) supervisory authority in preparing performance evaluations for the CNAs at the
facility. The evaluations do not directly affect employees’ wages. The record contains no
evidence of an evaluation having such an impact on any CNA’s wages or terms and conditions
of employment. The evaluations are not tied to employee wage increases or promotions, nor do
they directly affect any employee term or condition of employment. Although Schuster testified
that evaluations can have an impact on the employer’s decisions regarding discharge,
promotions, work improvement plans, transfers and discipline, the Respondent presented no
evidence of an employee evaluation having any specific positive or negative impact on any
employee’s terms or conditions or employment. In the absence of specific evidence
demonstrating such an impact, the Respondent’s unsubstantiated assertions are insufficient to
establish supervisory authority based on this aspect of LPNs’ duties. Ahrens Aircraft, 259 NLRB
839, 843 (1981), enfd. 703 F.2d 23 (1st Cir. 1983). As a result, I find that the record fails to
establish that the evaluation prepared by the LPNs have a direct correlation between the
numerical ratings and increase in wages, promotions, discipline, or any other terms and
conditions of employment.
d. The LPNs Do Not Have Accountability and Responsibly Direct
In Golden Crest Healthcare, 348 NLRB 727 (2006), the Board found that charge nurses
at a nursing home were not supervisors. Golden Crest operates an 80-bed nursing home.
Among the various staff members, the nursing department consists of 8 RNS who work as
charge nurses, 12 LPNs, 11 of whom occasionally work as charge nurses, and 36 certified
nursing assistants. The Board defined the element of “accountability” as follows
[T]o establish accountability for purposes of responsible direction, it must be shown that
the employer delegated to the putative supervisor the authority to direct the work and the
authority to take corrective action, if necessary. It also must be shown that there is a
prospect of adverse consequences for the putative supervisor if he/she does not take
these steps. Id. at 7.
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The Board first addresses the question of whether Golden Crest established that its
charge nurses direct other employees within the meaning of Section 2(11). Should that question
be answered in the affirmative, the Board then inquires whether the Employer established that
the charge nurses are accountable for their direction of other employees.
The employer Golden Crest argued that its charge nurses ‘assign’ employees in several
ways: ordering CNAs to go home early; assigning first-floor CNAs to work on the second floor if
that floor is understaffed; ordering CNAs to stay past the end of their shifts; and mandating that
CNAs come in to work from home. The Board found the charge nurses merely had the authority
to request that a certain action be taken; to be a supervisor under Oakwood Healthcare a
charge nurse must have authority to “require” that an action be taken. With respect to
“mandating employees to come into work,” the Board found that the charge nurses exercised a
ministerial function that was authorized by an admitted supervisor or the collective-bargaining
agreement.
Here, as noted above, the LPNs did not have the independent authority and discretion to
assign CNAs for work; or to require the CNA to take a certain action or to mandate an employee
to come to work.
Next, in Golden Crest, the Board examined whether the charge nurses had authority to
“responsibly direct.” First, the employer must establish that the [presumed supervisor] has the
ability to direct others employees, and if the question is answered in the affirmative, then the
employer must establish that the [presumed supervisor] is accountable for the direction of other
employees. The Board found, that although the employer proved the charge nurses have the
authority to direct other nurses, the employer failed to meet its burden of establishing that the
charge nurses were accountable for their actions in directing other nurses.
Similar to the finding in Golden Crest, there is no evidence here that the LPNs are
accountable for their action in directing the CNAs. The Respondent had not met its burden to
show that the LPNs’ performance ratings are assessed by the employer such “that any action,
either positive or negative, has been or might be taken as a result of the [LPNs’] evaluation on
this factor.” Golden Crest, above, 348 NLRB at 731. The mere existence of accountability on
paper is not enough and must extend to an actual or prospective consequence of the LPNs in
the performance of their duties as putative supervisors.11
Further, there is no record evidence to establish that LPNs transfer, lay off, recall,
promote, or reward direct CNA workers or any other employees. The evidence concerning the
authority of LPNs to recommend effectively the hiring of CNAs is inconclusive. As discussed
above, only one LPN testified that she recommended an individual for the position and is unsure
if anything happened with her recommendation. Laroc was never contacted by the human
resources department for input after her initial recommendation was made. It is obvious that the
ultimate decision rests with the human resources department, which may or may not adopt the
LPN’s recommendation. In these circumstances, I find that the record does not show that the
LPNs have the authority claimed by the Employer. Ryder Truck Rental, 326 NLRB 1386 (1998);
Bowne of Houston, 280 NLRB 1222 (1986); Oregon State Employees Assn., 242 NLRB 976
(1979).

11 Nowicki testified that a LPN may be disciplined for failing to perform supervisory duties, such as evaluations.
However, no evidence was proffered to substantiate this testimony and without more, there is nothing to corroborate
her statement of LPN accountability.
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A similar conclusion is warranted with respect to the role of LPNs in the issuance of
discipline. LPNs clearly report instances of misconduct and poor performance and have, on
some occasions, specifically recommended that discipline be imposed. However, since the
manager or DON decide and approve the discipline, they could adopt or ignore the LPN’s
disciplinary recommendations altogether. In these circumstances, it cannot be said that the
LPNs’ recommendations are effective or that the record conclusively shows that they possess
the indicia of supervisory authority.
Further, LPNs do not perform independent scheduling functions or direct employees in
their assignments. The evidence falls short of demonstrating that they exercise independent
judgment in these aspects of their duties. The Respondent provides LPNs with a master daily
schedule setting forth the hours and shifts on which CNA employees are to work. A LPN may,
on occasion, adjust the schedule based on equalizing the ratio of residents to CNAs or when a
patient arrives overnight and a CNA must be assigned to that patient, but that is far from
exercising independent decision authority in assigning and scheduling the CNAs and others. As
to the direct CNA workers’ daily tasks, the record shows that the staffing coordinator or DON
dictates the assignment shift for each CNA is to perform and the LPNs have little input to those
assignments. The CNA workers know how to perform their assignments and LPNs do not need
to provide day-to-day direction. As such, “supervisory direction” of other employees must be
distinguished from direction incidental to an individual’s technical training and expertise, and
employees will not be found to be supervisors merely because they direct and monitor support
personnel in the performance of specific job functions related to the discharge of their duties.
Robert Greenspan, DDS, 318 NLRB 70, 76 (1995); New York University, 221 NLRB 1148, 156
(1975). Also, LPNs cannot effectuate changes in employer policy. LPNs do not attend morning
managerial meetings where critical policy changes and modifications affecting themselves and
CNAs may be discussed and implemented.
Accordingly, I find that no primary indicia of supervisory status have been established for
LPNs. Based on the above, I find that licensed practical nurses are not supervisors within the
meaning of Section 2(11) of the Act.12
4. The Respondent Violated Section 8(a)(5) and (1) of the Act
When it Refused and Failed to Bargain with the Union
Having found that the Respondent had not altered or substantially changed the duties
and responsibilities of the LPNs, I now find that the General Counsel has met its burden to

12 The counsel for the Respondent argues that the framework articulated by Board Chairman Miscimarra
should be utilized involving disputed supervisor status (R. Br. at 13, 14). Chairman Miscimarra stated in his
dissenting opinion in Lakewood Health Center, 365 NLRB No. 10 slip op. at 3, 4 (2016).
As indicated in Buchanan Marine and other cases, when applying the factors outlined in Section 2(11), I
believe the Board in every situation should take into account the following considerations: (i) the nature of
the employer’s operations, (ii) the work performed by undisputed statutory employees, and (iii) whether it is
plausible to conclude that all supervisory authority is vested in persons other than those whose supervisory
status is in dispute.
As noted above, the LPNs are not the only persons present the majority of the time who can direct and
assign the subordinate CNAs. The registered nurses, unit managers, the director of nursing, and the facility
administrator are present at some point during the working hours of the CNAs. As such, the record has not shown
that the LPNs are the highest authority under factor (iii) of the framework analysis. Further, the putative supervisors
possess none of the primary indicia of supervisory status, so the reliance of “highest authority” as a secondary
indicium of supervisory status would not confer 2(11) status. Secondary indicia are insufficient by themselves to
establish supervisory status. Sam’s Club, 349 NLRB 1007 (2007); Golden Crest Healthcare Center, above, 348
NLRB 727, 730 fn. 10; Lakewood Health Center, 365 NLRB No. 10 slip op at 1 fn. 1.
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demonstrate that the Respondent is a perfectly clear Burns successor and is therefore obligated
to bargain with the Union as the exclusive bargaining representative of the LPN employee unit.
Accordingly, the Respondent’s bargaining obligation turns on whether a majority of its
employees in an appropriate bargaining unit were employed by the predecessor, and if there
exist substantial continuity between the enterprises. A.J. Myers & Sons, Inc., 362 NLRB No. 51,
slip op. at 7 (2015); Specialty Hospital of Washington-Hadley, LLC, 357 NLRB 814, 815 (2011);
Van Lear Equipment, 336 NLRB 1059, 1063 (2001).
First, there is no dispute, and the Respondent concedes, as it must, that a majority of the
unit alleged appropriate in the complaint was composed, at all relevant times, of former LPN
employees from Medicenter. Turning to substantial continuity, with regard to that factor “the
focus is on whether there is a ‘substantial continuity’ between the enterprises.” Fall River, 482
U.S. at 43. Under this approach, the Board examines a number of factors:
whether the business of both employers is essentially the same; whether the employees
of the new company are doing the same jobs in the same working conditions under the
same supervisors; and whether the new entity has the same production process,
produces the same products, and basically has the same body of customers [Id.].
Most importantly, the question of the substantial continuity of the enterprises is to be
analyzed primarily from the “employees’ perspective.” Fall River, 482 U.S. at 43. In its analysis,
the Board is mindful of whether “those employees who have been retained will understandably
view their job situations as essentially unaltered.” Id. (internal quotation omitted); Vermont
Foundry Co., 292 NLRB 1003, 1008 (1989) (calling this “the core question”); Derby Refining
Co., 292 NLRB 1015 (1989), enfd. 915 F.2d 1448 (10th Cir. 1990). As noted in my findings
above, the former Medicenter LPNs upon applying for the LPN position with the Respondent
were under the distinct impression that they were applying for their former position. From their
perspective, the job offer was a continuation of their previous employment with Medicenter. In
finding that the LPNs are not supervisors, the duties of the LPNs under Coral Harbor were
essentially unchanged from their duties with Medicenter.
From the “employee perspective,” I find it difficult to see how the Respondent can be
anything but a successor. From the employees’ perspective, there was no change in the
operations or their job situations that would support the belief that their duties had actually
changed. Consequently, I find as of January 1, 2016, there were both continuity in the
workforce and continuity of the business enterprise when Respondent Coral Harbor
commenced operations as the new owner of the purchased healthcare facility and an obligation
attached for the Respondent to continue bargaining with 1199 SEIU. There was “substantial
continuity” between the enterprises to the extent that the business of both employers is
essentially the same and the employees of the new company were performing the same jobs
under the same working conditions as of January 1. While this doctrine involves a multitude of
factors, typically, the new employer must “hire a majority of its employees from the
predecessor.” Howard Johnson Co. v. Detroit Local Joint Exec. Bd., 417 U.S. 249, 263 (1974).
Continuity of workforce is easily established here as Respondent retained a majority of
the predecessor’s employees and the LPN employee unit remained unchanged. The critical
inquiry in such an analysis is whether the Respondent conducts essentially the same business
as the predecessor, in other words, whether the similarities between the two operations
manifest a substantial continuity between the enterprises. Hydrolines Inc., 305 NLRB 416, 421
(1991), citing Fall River Dyeing, above 482 U.S. at 41–43 and Burns Security Services, above
406 U.S. at 280, fn. 4. The factors include whether the business is essentially the same,
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whether the employees of the new company are doing the same jobs under the same
supervisors, and whether the new entity has the same production process, produces the same
products and has the same body of customers. These factors are assessed primarily from the
perspective of the employees; that is, whether those employees who have been retained will
view their job situation was essentially unaltered. Hydrolines, above at 421.
The evidence establishes that Respondent provides the same services and engaged in
the same functions as its predecessor Medicenter. The Respondent continues to provide short-
term and long-term health care, and its LPN employees continue to perform the same patient
care duties with the same equipment and materials. DON Nowicki and other unit managers
under Medicenter continued their supervisory roles at Harbor Coral. The job functions of the
LPNs are “essentially unaltered.” O.G.S. Technologies, Inc., 356 NLRB 642, 645 (2011);
Torrington Industries, 307 NLRB 809, 810 (1992). There is no evidence that Respondent had
abandoned a line of business or otherwise made a change in its overall scope of its operations,
made a substantial capital commitment, or implemented more sophisticated technologies which
have changed the nature of its business.13
The Respondent’s obligation to bargain with the Union matured when two conditions
were met: (1) Respondent had hired a substantial and representative complement of LPNs
employees, a majority of whom had been Medicenter bargaining unit employees; and (2) the
Union had made an effective demand for recognition and bargaining. MSK Corp., 341 NLRB
43, 44 (2004). Both conditions have been met. As noted, there is no dispute among the parties

13 On October 11, 2016, the Respondent filed a motion in Limine to dismiss the complaint, relying upon the
General Counsel’s advice memorandum in the matter of Chestnut Health (01–CA–133937) (March 6, 2015). In
Chestnut Health, the General Counsel determined that the employer intended to hire registered nurses as
supervisors. The General Counsel found that the employer was a Burns successor and privileged to set initial terms
and conditions, including converting nurses to supervisors. The advice memorandum noted that
The Union arguably acquiesced in Blue Hills’ decision to give the RNs supervisory duties by saying in the May
30meeting that it had alreadybeen told duties by saying at the May 30 meeting that it had already been told of
this change by the RNs and it had assumed Blue Hills would not recognize the Union and then failing to demand
bargaining over the change or its effects. Moreover, Blue Hills provided evidence that it gave RNs supervisory
authority in accordance with its operating model at all the facilities that it operates. There is also no evidence that
Blue Hills made the change to destroy the bargaining unit or to avoid a bargaining obligation. In fact, Blue Hills
recognized 1199 SEIU as the representative.
This is not the factual situation here. Here, the Respondent is a perfectly clear Burns successor for the reason
that the LPNs’ duties are essentially unaltered from their former duties with Medicenter, as noted above. Second, the
Union never acquiesced or agreed with the decision to convert the LPNs to supervisors. On the contrary, the Union
vigorously objected to the Respondent’s intent to convert the LPNs. Third, Marquis owns 15 healthcare facilities and
the operating models of having LPNs act as supervisors are evident in only one facility with the change occurring
shortly prior to the purchase of Coral Harbor by Marquis and is not indicative of a clear operating model of using
LPNs as supervisor. Finally, there is evidence that Marquis attempted to change or destroy the bargaining unit by
initiating unilateral changes with respect to the service bargaining unit (GC Exh. 16) and with the filing of NLRB unfair
labor charges against the Respondent for its attempt to initiate unilateral changes and failing to recognize and
refusing to bargain with 1199 SEIU as the representative of the service workers (GC Exh. 21). For all these reasons,
I find that the factual situation here is distinctly at variant to the facts in the General Counsel’s advice memorandum
and reliance on the memorandum to the facts in this complaint would be inappropriate. Further, as noted in my
October 24, 2016 Order dismissing the motion in Limine, the General Counsel’s advice memorandum is not
precedential authority and not binding on the Board, citing to Fun Striders, Inc., 250 NLRB 520 (1980) and KFMB
Stations, 343 NLRB 748, 762 fn 21 (2004).
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that the Respondent hired a majority of the former LPNs at Medicenter. Second, there is no
dispute that the Union demanded bargaining on December 17, 2015 (GC Exh. 14).
It is now axiomatic that employers must bargain with the collective-bargaining
representative of its employees regarding significant, material changes to their wages, hours,
and health insurance benefits or working conditions before changing the status quo. An
employer violates Section 8(a)(5) and (1) if it makes a unilateral change in a mandatory subject
of bargaining without first giving the Union notice and an opportunity to bargain. See NLRB v.
Katz, 369 U.S. 736, 743 (1962); Western Cab Co., 365 NLRB No. 78 (2017) (unilateral changes
to its healthcare plan). Under Section 8(d), “wages, hours, and other terms and conditions of
employment” are mandatory subjects of bargaining.
Accordingly, I find that Respondent Coral Harbor is a perfectly clear Burns successor as
of January 1, 2016 with an obligation to bargain with the Union regarding the LPN employee
unit.
Having determined that the Respondent violated Section 8(a)(5) and (1) of the Act when
they refused to recognize and bargain with the exclusive collective-bargaining representative of
the LPN unit employees, I now find that Respondent made unilateral changes in the terms and
conditions of employment of the LPN unit employees at the facility without notifying and
bargaining with the Union in violation of Section 8(a)(5) and (1) of the Act. Champion Parts
Rebuilders, 260 NLRB 731, 733–734 (1982).
By failing to reach out to the Union and consult with the Union as to the substantial
changes in wages and working conditions of the LPNs, the Respondent intended to implement
and by providing piecemeal information directly to the employees about those changes, the
Respondent has engaged in unilateral changes and bypassed and undermined the Union in
violation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
The Respondent Coral Harbor is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
The Union, 1199 SEIU United Healthcare Workers East is a labor organization within the
meaning of Section 2(5) of the Act.
The Union, 1199 SEIU is, and at all material times, has been the exclusive joint
bargaining representative for the following appropriate unit:
All full-time and regular part-time Licensed Practical Nurses (LPN) employed by the
employer at its Neptune City, New Jersey facility, but excluding all office clerical
employees, confidential employees, LPN unit managers, other managerial employees,
professional employees, guards and supervisors as defined in the Act, and all other
employees.
Since January 1, 2016, the Respondent violated Section 8(a)(5) and (1) of the Act by
withdrawing recognition from the Union as the exclusive collective-bargaining representative of
the above-described unit of employees and thereafter continuously failing and refusing to
bargain on request with 1199 SEIU as the exclusive collective-bargaining representative of the
unit employees concerning wages, hours, and other terms and conditions of employment.
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Since January 1, 2016, the Respondent violated Section 8(a)(5) and (1) of the Act by
unilaterally changing the terms and conditions of employment of the LPNs without providing
notice to the Union and an opportunity to bargain over the changes.
The unfair labor practices committed by the Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I find that it
must 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 violated Section 8(a)(5) and (1) of the act by failing
and refusing to recognize and bargain collectively with the Union as the collective-bargaining
representative of an appropriate bargaining unit of employees, the Respondent shall recognize,
and, upon request, bargain with the Union as the exclusive representative of the designated unit
of employees (described above), and, if an understanding is reached, embody the
understanding in a signed agreement.
Having found that the Respondent violated Section 8(a)(5) and (1) of the act by making
unilateral changes to the wages and working conditions of the LPN unit employees, the
Respondent shall rescind its unlawful unilateral changes to the working conditions of the LPN
unit employees.14
The Respondent shall further be ordered to refrain from in any like or related manner
abridging any of the rights guaranteed to employees by Section 7 of the Act.
The Respondent shall post an appropriate informational notice, as described in the
attached appendix. This notice shall be posted in the Employer’s facility or wherever the notices
to employees are regularly posted for 60 days without anything covering it up or defacing its
contents. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means. In the
event that, during the pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since January 1, 2016. When the notice is
issued to the Employer, it shall sign it or otherwise notify Region 22 of the Board what action it
will take with respect to this decision.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended15

14 The amended complaint alleges in paragraph 16 that the Respondent unilaterally changed paid time off and health
insurance benefits. However, the counsel for the General Counsel never proffered testimony or evidence of these
changes. As such, what remedy, if any, would be appropriate with regard to these alleged changes is unclear.
Further, I shall not recommend the rescission of the wage increase effective after January 1, 2016 inasmuch as the
LPN unit employees should not be penalized by the unlawful unilateral change in their wages and it is unclear how
the Respondent would restore the status quo ante without depriving recently hired LPNs of their increased wages.
15 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended 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 purpose.
JD(NY)-12-17
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36
ORDER
The Respondent, Coral Harbor Rehabilitation and Nursing Center, with a nursing facility
in Neptune City, New Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and collectively bargain with 1199 Service
Employees International Union, United Healthcare Workers East, New Jersey (the Union) as the
exclusive collective-bargaining representative of its employees in the following appropriate unit:
All full-time and regular part-time Licensed Practical Nurses (LPN) employed by the
employer at its Neptune City, New Jersey facility, but excluding all office clerical
employees, confidential employees, LPN unit managers, other managerial employees,
professional employees, guards and supervisors as defined in the Act, and all other
employees.
(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 effectuate the policies of the Act.
(a) Recognize, and on request, collectively bargain with the Union as the exclusive
representative of the above-described unit of employees and, if an understanding is reached,
embody the understanding in a signed agreement.
(b) Rescind the unlawful unilateral changes in the working conditions of the LPN unit
employees.
(c) Within 14 days after service by the Region, post at its facility in Neptune City, New
Jersey, copies of the attached notice marked “Appendix.”16 Copies of the notice, on forms
provided by the Regional Director for Region 22, after being 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, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since January 1, 2016.
(d) Within 21 days after service by the Region, file with the Regional Director for Region
22 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.
Dated, Washington, D.C. July 13, 2017

Kenneth W. Chu
Administrative Law Judge

16 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 United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.”
i~ ~f ~v ~~
JD(NY)-12-17
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT fail and refuse to recognize and bargain with the 1199 SEIU United
Healthcare Workers East (the Union) as the exclusive collective-bargaining representative
of our employees in the following appropriate unit:
All full-time and regular part-time Licensed Practical Nurses (LPN) employed by the
employer at its Neptune City, New Jersey facility, but excluding all office clerical
employees, confidential employees, LPN unit managers, other managerial employees,
professional employees, guards and supervisors as defined in the Act, and all other
employees.
WE WILL NOT change the unit employees’ wages, hours, or other terms and conditions
of employment without first notifying 1199 SEIU and giving it a meaningful opportunity to
bargain about such changes to agreement or impasse regarding such changes in the wages,
hours, and working conditions of the unit employees.
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 recognize and, on request, collectively bargain with the Union and put in
writing and sign any agreement reached on terms and conditions of employment for our
employees in the bargaining unit.
Coral Harbor Rehabilitation and Nursing Center
_____________________________________
(Employer)

Dated:____________________ By:______________________________________
(Representative) (Title)
JD(NY)-12-17

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
National Labor Relations Board Region 22
20 Washington Place, 5th Floor
Newark, New Jersey 07102
Hours of Operation: 8:30 a.m. to 5 p.m.
973–645–2100
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/22-CA-167738 or by using the QR code
below. 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (862) 229-7055.