Laurel Baye Healthcare of Lake Lanier, LLC

National Labor Relations Board - Board Decisions

Feb 29, 2008

352 N.L.R.B. 179 (N.L.R.B. 2008)

LAUREL BAYE HEALTHCARE OF LAKE LANIER
352 NLRB No. 30
179
Laurel Baye Healthcare of Lake Lanier, LLC and
United Food and Commercial Workers Union,
Local 1996. Cases 10–CA–35958 and 10–CA–
35983
February 29, 2008
DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
On July 12, 2006, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
Charging Party filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to adopt the judge’s rulings, find-
ings,1 and conclusions2 and to adopt the recommended
Order as modified3 and set forth in full below.4

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We reject the Respondent’s argument that, under Courier-Journal,
342 NLRB 1093 (2004), it had no duty to bargain over changes to its
health insurance benefits because it was acting pursuant to an annual
review of those benefits. The Respondent waived this argument by
failing to raise it before the judge. See Yorkaire, Inc., 297 NLRB 401
(1989), enfd. 922 F.2d 832 (3d Cir. 1990).
The Respondent has excepted to the judge’s statement that economic
expediency is not a defense to employer unilateral conduct. We do not
rely on the judge’s statement to the extent it conflicts with settled Board
law that an economic exigency or compelling economic considerations
may justify unilateral action. See, e.g., RBE Electronics of S.D., 320
NLRB 80 (1995); Mike O’Connor Chevrolet, 209 NLRB 701, 703
(1974), enf. denied on other grounds 512 F.2d 684 (8th Cir. 1975).
3 We have modified the judge’s recommended Order to correct cer-
tain inadvertent errors and to conform to our standard remedial lan-
guage. We have substituted a new notice that reflects these changes.
The recommended Order properly required the Respondent, at the
Union’s request, to rescind its unilaterally implemented health insur-
ance plan and restore the prior plan. See, e.g., Berkshire Nursing
Home, LLC, 345 NLRB 220, 222 (2005); Larry Geweke Ford, 344
NLRB 628, 629 (2005). The Respondent may litigate in compliance
whether it would be impossible or unduly or unfairly burdensome to
restore the prior plan. See Larry Geweke Ford, supra at 629. If, how-
ever, the Union chooses continuation of the unilaterally implemented
health insurance policy, then make-whole relief for that unilateral
change is inapplicable. See Brooklyn Hospital Center, 344 NLRB 404
(2005). Although Member Liebman dissented on that point in Brook-
lyn Hospital Center, see id. at 404 fn. 3, she recognizes that it is extant
Board law and, for that reason alone, applies it here.
4 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Laurel Baye Healthcare of Lake Lanier,
LLC, Buford, Georgia, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Food and Com-
mercial Workers Union, Local 1996 (the Union) as the
exclusive bargaining representative of its employees in
the bargaining unit set forth below, by changing the em-
ployee dress code, attendance policy, vacation and sick
pay benefits, and health insurance carriers, premiums,
and benefits, without first notifying the Union and af-
fording it an opportunity to bargain about these changes.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify and give the Union an opportunity to bar-
gain before making any change in the terms and condi-
tions of employment of employees in the following ap-
propriate unit:
All full-time and part-time service and maintenance
employees, CNA’s, restorative aids, activity assistants,
medical record clerks, central supply clerks, and unit
secretaries, but excluding all employees employed by
Healthcare Services Group, Inc., including RN’s,
LPN’s and charge nurses, confidential employees, pro-
fessional employees, guards and supervisors as defined
in the Act.
(b) Upon request of the Union, rescind its unilaterally
implemented changes in employee dress code, attendance
policy, vacation and sick pay benefits, and health insur-
ance carriers, premiums, and benefits, and restore the
previously existing policies, including the previously
existing health insurance policy.
(c) Make bargaining unit employees whole for any
losses suffered as a result of those unilateral changes in
the manner set forth in the remedy section of the judge’s
decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to discipline imposed on unit
employees pursuant to its unilaterally altered dress code
and attendance policy, and within 3 days thereafter, no-

member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD180
tify any affected employees in writing that this has been
done and that any such discipline will not be used against
them in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Buford, Georgia, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, it shall duplicate and mail,
at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since May 1, 2005.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain with United Food and
Commercial Workers Union, Local 1996 (the Union) as
the exclusive bargaining representative of our employees
in the bargaining unit set forth below, by changing the
employee dress code, attendance policy, vacation and
sick pay benefits, and health insurance carriers, premi-
ums, and benefits, without first notifying the Union and
affording it an opportunity to bargain about these
changes.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL notify and give the Union an opportunity to
bargain before making any change in the terms and con-
ditions of employment of employees in the following
appropriate unit:
All full-time and part-time service and maintenance
employees, CNA’s, restorative aids, activity assistants,
medical record clerks, central supply clerks, and unit
secretaries, but excluding all employees employed by
Healthcare Services Group, Inc., including RN’s,
LPN’s and charge nurses, confidential employees, pro-
fessional employees, guards and supervisors as defined
in the Act.
WE WILL, upon request of the Union, rescind our uni-
laterally implemented changes in employee dress code,
attendance policy, vacation and sick pay benefits, and
health insurance carriers, premiums, and benefits, and
restore the previously existing policies, including the
previously existing health insurance policy.
WE WILL make bargaining unit employees whole for
any losses suffered as a result of those unilateral changes,
with interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to discipline im-
posed on unit employees pursuant to our unilaterally al-
tered dress code and attendance policy, and WE WILL,
within 3 days thereafter, notify any affected employees in
writing that this has been done and that any such disci-
pline will not be used against them in any way.
LAUREL BAYE HEALTHCARE OF LAKE LANIER,
LLC
LAUREL BAYE HEALTHCARE OF LAKE LANIER 181
Wanda Pate Jones, Esq., for the General Counsel.
Clifford H. Nelson Jr., Esq., for the Respondent.
James D. Fagan Jr., Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on March 9, 2006, pursuant to a con-
solidated complaint issued by the Regional Director for Region
10 of the National Labor Relations Board (the Board) on Janu-
ary 30, 2006. The complaint alleges that Laurel Baye Health-
care of Lake Lanier, LLC (the Respondent or Laurel Baye)
violated Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act). The complaint is based on charges filed by
United Food and Commercial Workers Union, Local 1996 (the
Charging Party or the Union). The complaint is joined by the
answer of Respondent wherein it denies the commission of any
violations of the Act.
Upon consideration of the testimony of the witnesses, the
exhibits received at the hearing and the positions of the parties
at the hearing and the briefs filed by the General Counsel and
the Respondent, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The complaint alleges, Respondent admits, and I find that at
all times material, that Respondent has been a South Carolina
corporation with an office and place of business in Buford,
Georgia, where it has been engaged in providing skilled care
nursing services, that during the past calendar year, a represen-
tative period, Respondent, in conducting its business operations
described above, derived gross revenues in excess of $100,000
and purchased and received at its Buford, Georgia facility
goods valued in excess of $50,000 directly from points outside
the State of Georgia and has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that at
all times material, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
III. APPROPRIATE UNIT
The complaint alleges, Respondent admits, and I find that at
all times material, that the following employees of Respondent
herein called the unit, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section
8(b) of the Act:
All full-time and part-time service and maintenance employ-
ees, CNA’s, restorative aids, activity assistants, medical re-
cord clerks, central supply clerks, and unit secretaries, but ex-
cluding all employees employed by Healthcare Services
Group, Inc., including RN’s, LPN’s and charge nurses, confi-
dential employees, professional employees, guards and super-
visors as defined in the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
The facts in this case are largely undisputed. On November
26, 2004, in a secret-ballot election under the supervision of the
Regional Director for Region 10 of the Board, a majority of the
unit employees designated and selected the Union as their rep-
resentative for the purposes of collective bargaining with Re-
spondent with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment and on
June 27, 2005, the Board certified the Union as the exclusive
bargaining representative of the employees in the aforesaid
unit. The complaint alleges, Respondent denies, and I find that
since November 26, 2004, the Union has been, and is the repre-
sentative of a majority of the employees in the unit for purposes
of collective bargaining and by virtue of Section 9(a) of the
Act, has been, and is the exclusive representative of the unit for
purposes of collective bargaining.
The complaint alleges that in about May and August 2005,
Respondent violated Section 8(a)(1) and (5) of the Act and
made unilateral changes to the terms and conditions of em-
ployment for bargaining unit employees including a new dress
code, new attendance policy, new health insurance plan carriers
and benefits, a reduction in vacation pay benefits, and a change
in vacation notice requirements. The General Counsel in her
brief withdrew that portion of paragraph 16(a) of the complaint
with respect to the allegation that Respondent unilaterally
changed the vacation notice requirements. Respondent admits
in a joint stipulation filed at the hearing, that at all times since
the November 26, 2004 representative election, it has refused to
recognize and bargain with the Union and that it has not noti-
fied or given the Union an opportunity to bargain about any
changes in bargaining unit employees’ terms and conditions of
employment.
On July 18, 2005, the Union filed a charge against Respon-
dent for failing to engage in collective bargaining. A complaint
in that underlying case, Case 10–CA–35752, was issued on July
27, 2005, alleging that Respondent violated Section 8(a)(1) and
(5) of the Act by refusing the Union’s request to bargain and
furnish information following its certification. Respondent
timely filed its answer to that complaint and on August 16,
2005, the Acting General Counsel filed a Motion for Summary
Judgment. On August 18, 2005, the Board issued an Order
Transferring the Proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. Respondent filed
a reply and attached to its reply an amended answer in which it
asserted several affirmative defenses based on the Union’s
recent disaffiliation from the AFL–CIO. On December 28,
2005, the Board issued its Decision granting the Motion for
Summary Judgment and directing Respondent to bargain with
and provide information to the Union. The Board took official
notice of the underlying representation proceeding in Case 10–
RC–15475. It was stipulated at the hearing in the instant case
before me that Respondent has filed a Petition for Review of
the Board’s Decision and Order, reported at 346 NLRB 159
(2005), with the Fourth Circuit Court of Appeals in Richmond,
Virginia.
The General Counsel sets forth in her argument in her brief
what she terms as controlling legal precedent as follows:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD182
Section 8(a)(5) obligates an employer to bargain with
its employees’ representative in good faith regarding
‘wages, hours and other terms and conditions of employ-
ment.’ NLRB v. Borg-Warner Corp, 356 U.S. 342, 343
(1958); Fiberboard Corp. v. NLRB, 379 U.S. 203, 210
(1964). As such, an employer must notify and consult
with its employees’ chosen union before imposing changes
in wages, hours, and conditions of employment. NLRB v.
Katz, 369 U.S. 736, 743 (1962). An employer’s obligation
to bargain arises on the date a majority of the appropriate
bargaining unit employees select the union as their repre-
sentative and it is not a defense that unilateral changes
were made pursuant to established company policy, with-
out antiunion motivations or were economically expedient.
Gulf States Manufacturers, Inc., 261 NLRB 852, 863–864
(1982).
To be found unlawful, the unilaterally imposed change
must be “. . . material, substantial, and significant” and
must have a “real impact” on or be ‘a significant detriment
to’ the employees or their working conditions. Unilateral
changes made prior to the certification are not excused
and, absent compelling economic considerations for doing
so, an employer acts at its peril in making unilateral
changes in terms and conditions of employment during the
period between an election and a union’s certification,
Mike O’Connor Chevrolet, 209 NLRB 701, 703 (1974).
I find that these principles do apply to the instant case in ad-
dressing the issues before me for determination as the issues are
set out by the General Counsel in her brief and as noted in the
answers to the issues as addressed by me:
1. “Whether Respondent’s unilateral issuance of a new at-
tendance policy violated Sections 8(a)(1) and (5) of the Act?”
Answer: Yes!
2. “Whether Respondent’s unilateral issuance of a new dress
code violated Section 8(a)(1) and (5) of the Act?” Answer:
Yes!
3. “Whether Respondent’s unilateral changes to the health
insurance plan carriers, premiums and benefits violated Section
8(a)(1) and (5) of the Act?” Answer: Yes! “or were these
changes privileged by compelling economic circumstances”
Answer: No!
4. “Whether Respondent’s unilateral reduction of vacation
and sick pay from 8 hours to 7.5 hours per day violated Section
8(a)(1) [and] (5) of the Act?” Answer: Yes!
As noted above the facts in this case are largely undisputed
either by specific stipulations of fact, Respondent’s admissions
to allegations in the complaint or the unrebutted testimony of
Union Organizing Director Eric Taylor, certified nursing assis-
tants (CNA’s) Chantel Daniels and Rosetta Greenwood or the
unrebutted testimony or concessions of Respondent’s outside
Benefit Consultant John Robert Black or the unrebutted admis-
sions in the testimony of Director of Personnel Christine Avi-
colli. Additionally, Respondent’s records and pertinent sec-
tions of its employee handbook support the credible testimony
of the witnesses.
A. The Attendance Policy
CNA Greenwood testified about the written policy change
by its terms effective May 1, 2005, on its face which shows that
Respondent changed its attendance policy on May 1, 2005, in
several respects. Prior to the May 1, unilateral changes which
were implemented by then Facility Administrator Melissa
Franklin at meetings held with the employees, the attendance
policy was set out in the “attendance/tardiness section” of the
employee handbook in separate sections covering tardiness,
calling in, unscheduled absences and the definition of unsched-
uled absences which excluded up to four periods of unsched-
uled medical absences with a written physician’s excuse. It
contained a progressive disciplinary policy concerning tardi-
ness moving from counseling, to suspension and to termination.
It is undisputed that Respondent announced and imple-
mented the new attendance policy effective May 1 without
notifying and bargaining with the Union. The most significant
change in the policy and the past practice concerning it was the
change from an excused/unexcused system to a no-fault point
system that set out a point for each instance of an absence or
tardy irrespective of whether the absence would have been
excused or was excused under the preexisting system. Thus,
under the new policy, employees could be disciplined or dis-
charged for excused absences as well as for unexcused ab-
sences.
The definitions of “tardiness” and “leave early” were also
significantly changed from the definition of tardiness as 8 min-
utes past scheduled reporting time to reporting to work more
than 2 minutes after the start time. Unscheduled absences un-
der the preexisting policy included, “working less than (4)
hours of your scheduled shift.” Whereas “leave early” under
the new policy was defined as “leaving earlier than five min-
utes before the end of the scheduled shift” and “absence” was
defined as “Failure to work an entire scheduled shift.”
Respondent contends that the changes were not implemented
as its new Director of Personnel Christine Avicolli, who com-
menced her duties in July 2005, could find no evidence that
employees had ever received a copy of the policy and no evi-
dence that attendance was being tracked by the director of nurs-
ing and that there was no evidence that employees had received
counseling or other corrective evidence under the new policy.
Respondent further relies on the testimony of Avicolli that she,
herself, did not take steps to implement the new attendance
policy.
Analysis
I find that after consideration of the foregoing contentions of
the parties and a review of the evidence, it is clear that the pol-
icy changes were material, substantial, and significant manda-
tory subjects of bargaining which were implemented by Frank-
lin according to the unrebutted testimony of Greenwood and the
existence of the written policy itself. There is no question that
the unilateral changes significantly changed the employees’
terms and conditions of employment. Respondent admits that it
implemented the changes without notifying and affording the
Union an opportunity to bargain concerning them. I find that
the implementation of the unilateral changes materially affected
the unit employees’ terms and conditions of employment and
LAUREL BAYE HEALTHCARE OF LAKE LANIER 183
that Respondent thereby violated Section 8(a)(1) and (5) of the
Act. Toledo Blade Co., 343 NLRB 385 (2004); Dorsey Trail-
ers, Inc., 327 NLRB 835 (1999).
B. The Dress Code
In late April 2006, Office Administrator Melissa Franklin,
announced a change in Respondent’s dress code to the unit
employees at the same meetings at which she announced the
attendance policy changes. The preexisting dress code was set
out in the employee handbook in pertinent part as follows:
In general, blue jeans, T-shirts, clothing advertising
any product, service or organization or other forms of
sports or trendy attire are not acceptable working apparel
for any staff who have contacts with residents or the gen-
eral public. Shoes should be closed-toe and in good re-
pair. As safety for our employees and residents is a pri-
mary concern, open-toe and sling-back shoes should not
be worn. Similarly, jewelry should not adversely affect
the safety of residents or staff. For example, large, sharp-
edged rings and dangling earrings could injure you or a
resident.
. . . .
Jeans and other forms of work clothes may be permis-
sible for employees engaged with work that could cause
their clothes to become heavily soiled. Example: Laundry
or dietary.
An employee’s hair should be kept clean & arranged
neatly so as not to interfere with the employee’s assigned
duties. Depending on duty assignment or work area, an
employee with long hair may be required to wear a hair
net.
The General Counsel points out in her brief that the preexist-
ing policy’s sole reference to shoes was that they be closed-toe
and that no slingbacks should be worn, that the policy was si-
lent about white scrubs and shoes. The code required that hair
be clean and neatly arranged but made no references to hair
color, tattoos or body piercings. However, the new dress code
required for the first time that employees wear scrubs and white
shoes. Greenwood testified that on the same day as the an-
nouncement she and other unit employees purchased white
shoes. Greenwood further testified that to comply with the new
policy, employees removed body piercings and covered tattoos
and ceased coloring their hair. Thus, it is clear that the new
dress code was implemented and was adhered to by the unit
employees. The new policy lists guidelines which must be
adhered to such as “No exposed body piercing,” “Fingernails
must be trimmed to an acceptable length.” “Tattoos that are in
visible locations must be covered while at work (e.g., tattoos on
arms, hands).” “Hair coloring should be of a natural color. No
multicolor or unusual hair coloring outside of generally ac-
cepted norms is allowed.”
Analysis
Appropriate wearing apparel is a mandatory subject of bar-
gaining, St. Luke’s Hospital, 314 NLRB 434, 440 (1994); Pub-
lic Service Co. of New Mexico, 337 NLRB 193, 199–200
(2001). It is clear that the aforesaid changes in dress code were
material, substantial and significant, even requiring the unit
employees to expend their own funds to pay for them as in the
case of the white shoes and scrubs. These new requirements
differed significantly from the requirements imposed by the
preexisting dress code policy. It is undisputed that the Respon-
dent did not provide the Union with notice of the changes and
an opportunity to bargain prior to the implementation of the
new dress code. I accordingly find that Respondent violated
Section 8(a)(1) and (5) of the Act thereby.
C. Unilateral Changes in Preexisting Health Insurance
Carriers, Premiums, and Benefits
The complaint alleges that Respondent also violated Section
8(a)(1) and (5) of the Act by unilaterally, without providing
notice and an opportunity to bargain to the Union, making
changes in the health insurance carriers and the premiums and
benefits and cost of the health insurance provisions. John
Black testified that he is the principal owner of Benefits Man-
agement Group (BMG) which provides consulting services and
is a broker for Respondent in the review, analysis, negotiation,
placement, and administration of health insurance polices for
Respondent’s employees and their dependents. BMG originally
commenced performing these services for Respondent in 2002.
The various health insurance policies of Respondent are re-
viewed annually. Prior to this BMG sends out requests for
proposals (RFPs) to the current insurers and to other carriers
and prepares and negotiates rates and policies with the carriers
and prepares a template of what BMG is seeking on behalf of
the Respondent and the plans of the carriers for purposes of
comparison. In 2005, the then current health insurance policies
were due to expire on April 30, 2005, and new policies had to
be in place effective on May 1, 2005. In January, Black, on
behalf of BMG sent RFPs to its then existing insurance carriers
and other potential carriers for comparison of rates and benefits
and was awaiting responses from them. However, in February
2005, BMG received letters from existing carriers who advised
they would terminate the relationship on April 30, 2005. This
occurred prior to the anticipated renewal. BMG then proceeded
to compare the various policies and determined which propos-
als, which had been further negotiated by BMG with the carri-
ers, were the best options for Respondent. It determined that
the two new plans which were preferred provider plans by
CIGNA and two gap plans provided by American Fidelity were
the best option to cover the deductibles not covered by the
CIGNA plans and in early to mid-March BMG met with former
Director of Human Resources David Johnson and Benefits
Coordinator Bridget Harelson and presented BMG’s recom-
mendations to them. A few days later BMG was notified by
Respondent that Respondent was accepting BMG’s recommen-
dations. Ultimately, the plans were put into effect commencing
on May 1, 2005. It is undisputed that the carriers were
changed, and the cost and benefits and other terms of the health
insurance policies were changed. The changes are as follows:
There was an increase in premium costs. Respondent would
pay a flat rate of $250 per month rather than continuing to pay
75 percent of the cost which would have caused Respondent to
bear a greater share of the premiums as the premiums escalated.
The policies were to be implemented corporatewide and were
not limited to the Lake Lanier facility. BMG representatives
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD184
and Harelson and Andre Dyer, the Lake Lanier facility director
of personnel met with the unit employees at the Lake Lanier
facility on March 31 and April 1, 2005, and conducted an open
enrollment.
Analysis
It is undisputed that the Respondent was aware of the up-
coming renewals on November 26, 2004, when the Union won
the election, on June 27, 2005, when the Union was certified, in
January 2005, when BMG sent out the requests for proposals,
in February 2005, when BMG was notified of the intent of the
current insurance carriers to terminate the various policies,
when BMG met with Respondent’s director of personnel and
benefits coordinator and on March 31 and April 1, the dates the
Respondent met with its employees to explain the changes in
policy and to conduct the open enrollment then for the new
policies and on the date (May 1, 2005) when the new policies
became effective. The record in this case clearly demonstrates
the Respondent had many opportunities to notify the Union and
offer to negotiate these changes in carriers, benefits and pre-
mium costs of the insurance but steadfastly declined to afford
the Union with notice and an opportunity to bargain. Union
Representative Eric Taylor testified the Union did not learn of
the changes until November 2, 2005. It is also clear that the
changes regarding the health insurance policies were material,
substantial, and significant and had a genuine impact on the
employees who were forced to carry a heavier burden in their
share of the cost whereas the Respondent insulated itself
against additional rate increases by imposing a flat rate on the
employer’s portion of the premiums.
I find there is no basis for Respondent’s contention that it
had an exigency of either an emergency or less sensitive type
which required immediate action to protect the employees’
health insurance coverage so as to excuse the Respondent’s
failure to notify the Union and offer to bargain prior to effect-
ing the changes in their health insurance coverage. I find that
Respondent violated Section 8(a)(1) and (5) of the Act by im-
plementing the unilateral changes in the Insurance Carriers’
premiums and benefits. Bottom Line Enterprises, 302 NLRB
373 (1991); RBE Electronics of S.D., 320 NLRB 80 (1995);
Brook Meade Health Care Acquirers, Inc., 330 NLRB 775
(2000).
D. Reduction of Vacation and Sick Leave Pay
The undisputed testimony of Rosetta Greenwood and
Chantel Daniels established that the Respondent had, since their
employment in 2001 and 2002 respectively, paid employees 8
hours for each day of vacation or sick leave. However, after
new Director of Personnel Christine Avicolli commenced her
employment with Respondent in July 2005, she was informed
by other management employees who trained her that the em-
ployees were only to be paid 7.5 hours a day for vacation days
and sick leave. She began to pay employees the lower 7.5-per-
day rate for vacation and sick leave after August 22, 2005. The
employees protested and Greenwood even sent a copy of the
sick leave and vacations parts of the policy to Avicolli.
Analysis
I credit the unrebutted testimony of Greenwood and Daniels
and note that Avicolli conceded that she had made the changes.
Respondent presented no evidence to refute their testimony. It
is also undisputed that Respondent did not provide the Union
with notice of the changes and an opportunity to bargain con-
cerning them. I find that Respondent violated Section 8(a)(1)
and (5) of the Act thereby as the changes in vacation and sick
leave pay were “wages” as encompassed in the Act and the
Respondent had a duty to bargain with the Union concerning
them. I reject Respondent’s contention that these reductions
were de minimus. Rangaire Co., 309 NLRB 1043 (1992); Lit-
ton Systems, 300 NLRB 324, 321 fn. 34 (1990), enfd. 949 F.2d
249, 251–252 (8th Cir. 1991).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent has violated and is violating Section 8(a)(1)
and (5) of the Act.
THE REMEDY
Having found that Respondent has violated and is violating
the Act by unilaterally changing and implementing a new
health care plan for its unit employees, and by unilaterally im-
posing other changes in terms and condition of employment, it
shall be ordered to cease and desist thereform and in any like or
related manner, interfering with, restraining, or coercing its
employees in the exercise of their rights under Section 7 of the
Act. I further recommend that the Respondent restore the status
quo ante and make whole any employees who suffered any
additional cost or increase in premiums or health care cost they
sustained as a result of the unilateral changes in the health care
policies, and for any expenses and loss as a result of the other
unilateral changes in the attendance policy, vacation pay and
sick leave pay and the changes in the dress code and from any
discipline imposed on the employees pursuant to the imposition
of the aforesaid unilateral changes. The reimbursement to em-
ployees shall be computed as prescribed in Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F2d. 502 (6th Cir.
1971), with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
Board precedent establishes that the appropriate remedy for a
unilateral change, including changes to corporate health care
plans, is a restoration order and rescission, upon request. The
Board has also held that the “standard remedy for unilaterally
implemented changes in health insurance coverage is to order
the restoration of the status quo ante.” Larry Geweke Ford, 344
NLRB 628 (205).
[Recommended Order omitted from publication.]