A & C Healthcare Services, Inc.

A & C HEALTHCARE SERVICES 354 NLRB No. 33 275 A & C Healthcare Services, Inc. and Service Employ- ees International Union, United Healthcare Workers-West. Cases 20–CA–33588 and 20–CA– 33780 June 8, 2009 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER On July 18, 2008, Administrative Law Judge Gerald A. Wacknov issued the attached decision. The Respond- ent filed exceptions and a supporting brief. The General Counsel filed limited exceptions, a brief in support of his exceptions, and a brief in support of the judge’s decision. The Respondent and the General Counsel also filed sepa- rate answering briefs to the other party’s exceptions. The National Labor Relations Board has considered the decision and the record in light of the exceptions, limited exceptions, and briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order as modified.1 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, A & C Healthcare Services, Inc., Millbrae, California, its offic- ers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1 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 Kirsanow and Walsh on December 31, 2007. Pursuant to this delega- tion, Chairman Liebman and Member Schaumber constitute a quorum of the three-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. See New Process Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), petition for cert. filed __ U.S.L.W. __ (U.S. May 27, 2009) (No. 08-1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), rehearing denied No. 08-1878 (May 20, 2009). But see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petition for rehearing filed Nos. 08- 1162, 08-1214 (May 27, 2009). Because Member Schaumber agrees with the judge that it makes no difference in this case whether the Respondent is a “perfectly clear successor” employer, he finds it unnecessary to pass on the judge’s comments in his decision at pars. 9–11 of sec. “C. Analysis and Con- clusions.” We shall modify the recommended Order by adding new par. 1(b) to include the standard remedy for the judge’s 8(a)(5) finding based on the Respondent’s refusal to recognize and bargain with the Union until January 2008. We shall also modify the recommended Order to reflect the judge’s proposed remedy for the Respondent’s unlawful unilateral changes. We will also substitute a new notice to conform to the Order as modified. 1. Insert the following as paragraph 1(b) and reletter the subsequent paragraph accordingly. “(b) Failing and refusing to recognize and to bargain in good faith with the Union as the collective-bargaining representative of the unit employees.” 2. Substitute the following for paragraph 2(a). “(a) On request of the Union, rescind any departures from terms and conditions of employment that, absent the Respondent’s unilateral conduct, would have existed for employees on November 8, 2007, as set forth in the remedy section of this decision.” 3. Substitute the attached notice for that of the admin- istrative law judge. 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 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 unilaterally change wages, hours, and other terms and conditions of employment of employees without first giving notice to and bargaining with the Service Employees International Union, United Healthcare Workers-West (the Union) in the following appropriate unit: All employees performing work covered by the collec- tive-bargaining agreement between Pleasant Care and the Union effective October 1, 2006 through June 15, 2008. WE WILL NOT fail and refuse to recognize and to bar- gain in good faith with the Union as the collective- bargaining representative of the unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coercive you in the exercise of the rights set forth above. WE WILL, on request of the Union, rescind any depar- tures from terms and conditions of employment that, absent our unilateral conduct, would have existed for DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 276 employees on November 8, 2007, as set forth in the rem- edy section of this decision. WE WILL, on request of the Union, bargain collectively with the Union as the exclusive representative of the em- ployees in the unit described above with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if agreement is reached, embody such agreement in a signed document. A & C HEALTHCARE SERVICES, INC. Micah Berul, Esq., for the General Counsel. Robert M. Cassel, Esq., of Mill Valley, California, for the Re- spondent. Bruce Harland, Esq. (Weinberg, Roger & Rosenfeld), of Ala- meda, California, for the Union. DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge. Pursuant to notice a hearing in this matter was held before me in San Francisco, California, on April 21, 2008. The charges were filed by Service Employees International Union, United Healthcare Workers-West (the Union) on September 18, 2007, and January 23, 2008, respectively. Thereafter, on March 26, 2008, the Regional Director for Region 20 of the National La- bor Relations Board (the Board) issued a consolidated com- plaint and notice of hearing alleging violations by A & C Healthcare Services, Inc. (Respondent) of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). The Re- spondent, in its answer to the complaint, duly filed, denies that it has violated the Act as alleged. The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs have been received from counsel for the General Counsel (the Gen- eral Counsel) and counsel for the Respondent. Upon the entire record, and based upon my observation of the witnesses and consideration of the briefs submitted,1 I make the following FINDINGS OF FACT I. JURISDICTION The Respondent, a California corporation, with two nursing home facilities in the State of California, including the facility herein located in Millbrae, California, is engaged in the busi- ness of providing residential nursing care to patients. In the course and conduct of its business operations the Respondent annually derives gross revenues in excess of $100,000, and annually purchases and receives at its California facilities goods and services valued in excess of $5000 which originated 1 The General Counsel’s posthearing motion to strike portions of Re- spondent’s brief is denied, however, matters discussed in the brief that are not part of the record have been disregarded. Respondent’s post- hearing motion to strike references to certain cited cases in the General Counsel’s brief is denied. outside the State of California. It is admitted and I find that the Respondent is, and at all material times has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and a health care institution within the meaning of Section 2(14) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is and at all times material herein has been, a labor organization within the mean- ing of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Issues The principal issue in this proceeding is whether the Re- spondent, as a successor employer, unilaterally changed em- ployees’ preexisting terms and conditions of employment with- out bargaining with the Union, in violation of Section 8(a) (5) and (1) of the Act. B. Facts The facts in this proceeding, which were largely stipulated, are not in material dispute. In July, 2007,2 the Respondent, a licensed nursing home owner/operator, purchased the predeces- sor’s nursing home facility as the low bidder in a bankruptcy auction. The Order of the Bankruptcy Court, Central District of California (Los Angeles Division), is the underlying document setting forth the parameters of the transaction and the respective obligations of the buyer (Respondent) and seller (Predecessor). The Bankruptcy Court retained jurisdiction of the entire pur- chase/transfer process until such time as the Respondent ac- quired the proper State license and thereby replaced the prede- cessor as the legal owner/operator of the facility. The se- quence by which the Respondent would first become the inter- im operator of the facility under the predecessor’s California State operating license, and subsequently would become the legal owner/operator of the facility upon obtaining its own op- erating license, is set forth, inter alia, in a separate document between the Respondent and predecessor entitled operations transfer agreement (OTA), also subject to the approval of the Bankruptcy Court. The Respondent assumed interim operation of the facility on August 8, on which date the Respondent’s principals personally informed all the individuals employed by the predecessor, in- cluding managers and supervisors, that they were immediately being hired by the Respondent on a 90-day probationary basis. Further, the Respondent told the nonsupervisory employees that they would continue to receive their regular pay but would not receive health or other benefits. This announcement effectively modified the employees’ then-current wages, hours, and bene- fits, which were established and set forth in a collective- bargaining agreement between the Union and predecessor, extending from October 1, 2006, until June 15, 2008. It was stipulated that the Respondent did not state to the employees it was setting “initial terms and conditions of employment.” 2 All dates or time periods hereinafter are within 2007, unless other- wise noted. A & C HEALTHCARE SERVICES 277 Upon assuming operations of the facility, the Respondent continued to provide residential nursing care to patients at the facility in essentially unchanged form from the predecessors’ operations, and with the same employee complement. On November 8, coinciding with the end of the 90-day pro- bationary period, the Respondent informed all but 6 of the 85 nonsupervisory/managerial employees who had been previous- ly employed at the facility by the predecessor, that they had passed their probationary period and were eligible to become, and did become, permanent employees. Also on November 8, the Respondent announced and unilat- erally established terms and conditions of employment covering wages, holidays, health insurance, overtime, sick leave, and no- call/no-show policy, to all assembled workers who had passed probation and wished to be employed in permanent regular positions. The complaint alleges and the Respondent admits that on about September 14, during the probationary period and prior to the aforementioned November 8 announcement of terms and conditions of employment, the Union requested that Respond- ent recognize and bargain collectively with the Union as the collective-bargaining representative of the unit employees. The Respondent apparently did not reply to this request for several months during which period its license application was pend- ing. Then, on Monday, December 3, it advised the Union by letter that it would agree to recognize the Union conditionally, provided that: 1) Respondent had been licensed by the Department of Health and thereby able [sic] to close its purchase of the Facility; 2) employ persons directly as a healthcare employer; 3) and a majority of employees currently employed were previously bargaining unit employees of the former employer. Further, the Respondent offered, subject to the above condi- tions, to meet and bargain with the Union on January 3, 2008. Prior to January 3, 2008, the Respondent had been granted the appropriate license by the Department of Health, and its purchase of the facility had been consummated. On January 3, 2008, the Respondent recognized the Union as the exclusive collective-bargaining representative of the unit employees em- ployed by the Respondent. On about January 15, 2008, the Respondent issued an employee handbook which unilaterally establishes wages, hours, and working conditions that are ap- parently different from and/or in addition to those previously announced to the employees on November 8, supra. The par- ties held bargaining sessions on January 15 and 30, March 7, and April 4, 2008. C. Analysis and Conclusions The complaint alleges and the General Counsel and Union argue that the Union became a Burns3 “perfectly clear” succes- sor on August 8, when it hired all the unit employees employed by the predecessor on a probationary basis without simultane- ously setting their initial, i.e., nonprobationary, terms and con- ditions of employment upon becoming permanent employees; therefore, although Burns makes it clear that the Respondent, as 3 NLRB v. Burns Security Services, 406 U.S. 272 (1972). a successor employer, assumes no contractual relationship with the Union, it is nevertheless obligated to negotiate with the Union regarding initial terms and conditions of employment that differ from those previously enjoyed by the employees, as set forth in the collective-bargaining agreement. The Respondent maintains that this case is unique and that all prior cases under Burns are readily distinguishable because they do not arise in a bankruptcy setting. First, it is argued that the Bankruptcy Court’s Order specifically addresses the issue of successorship, and precludes the finding that the Respondent is a successor under the Act. Thus, the Bankruptcy Court’s Order states, at paragraph 8: Except for unexpired leases and executory contracts to be as- sumed by the Debtors and assigned to the buyer [Respond- ent], the buyers shall not be assuming any of the Debtors’ [predecessor’s] liabilities. The buyers are not successors of the Debtors, and the buyers shall have no successor liability as a result of purchasing any of the Debtors’ facilities.4 The Respondent’s brief is silent regarding the meaning and intent of this language, or its significance and implications vis- à-vis a successor employer’s obligations under the Act. The quoted language simply appears to immunize the Respondent from the debtor’s contract liability unless the Respondent spe- cifically becomes a party to the contract, and further, appears to immunize the Respondent from the debtor’s tort liability at- tendant to lawsuits that may have been brought or could be brought against the debtor. This language appears to have no bearing whatsoever regarding the Respondent’s relationship to the Union, which, as noted in Burns, is not a contractual rela- tionship. Accordingly, as the Respondent has not demonstrated that the language is pertinent to the issues herein, I find no mer- it to the Respondent’s argument. Next, the Respondent maintains that its successorship status did not begin when it took over the operation of the facility on August 8, because it was merely the interim operator until such time as it obtained its own operating license. In Golden Cross Health Care of Fresno, 314 NLRB 1201, 1205–1206 (1994), the Board found, under similar circumstances, that successorship status commenced when the employer began operating the facility; thus, although legal ownership of the facility had not yet been transferred and the employer’s operat- ing license had not yet been granted, the record evidence sup- ported the finding of a “respectable certainty” that these even- tualities would, in fact, occur. The Respondent has not demon- strated that obtaining the new operating license or completing the transfer of ownership of the property was in jeopardy or problematical or less than a “respectable certainty” at the time it became the interim operator of the facility.5 Therefore, I find this argument of the Respondent to be without merit. 4 The Court’s Order deals with multiple debtor entities and multiple buyer entities; hence the plural designations. 5 The fact that the Respondent had been previously licensed to oper- ate and was operating another nursing home in the State of California, and, in addition, Secs. 16 and 17 of the Court’s Order that provide for forfeiture of the Respondent’s deposit and purchase price if the Re- spondent fails to obtain the appropriate license or to consummate the transaction in the manner required, are strong indicators of the Re- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 278 Assuming arguendo that it became a successor on August 8, the Respondent contends that is not a Burns successor but ra- ther a Spruce Up6 successor because on that date it did in fact establish initial terms and conditions of employment by hiring the predecessor’s employees at their current wage rate, but as probationary employees with no benefits. Thus, the Respond- ent states in its brief: There is no evidence herein R [Respondent] had failed to clearly offer its initial terms and conditions on August 8th. The only employment being offered on that date to all R em- ployees (including supervisors and management staff) pursu- ant to the OTA was probationary employment for a 90 day period which if successful would provide eligibility for per- manent employment on wages and benefits to be announced on or before the expiration of the 90 day period. In Windsor Health Care, 351 NLRB 975 (2007) the admin- istrative law judge essentially subscribed to a similar argument, finding the successor employer, upon hiring the predecessor’s employees as “temporary employees,” and later unilaterally setting initial terms and conditions of employment, was not a Burns successor because: As the Board noted in Spruce Up: When an employer who has not yet commenced opera- tions announces new terms prior to or simultaneously with his invitation to the previous work force to accept em- ployment under those terms, we do not think it can fairly be said that the new employer “plans to retain all of the employees in the unit,” as that phrase was intended by [Burns]. When the possibility that the predecessor’s employees may not enter into an employment relationship with the new employer is a real one, the Board does not consider it “perfectly clear” that the new employer “plans to retain all of the employees in the unit.” Ibid.7 Here, Respondent in- formed the Candlewood applicants that they would be em- ployed only in a temporary or probationary status for 90 days. That should have signaled to the applicants that terms and conditions of employment with Respondent were not going to be identical with those of its predeces- sor, and they could have declined employment upon learn- ing they would have to complete a probationary period. Thus, . . . Respondent did not violate the Act by setting initial terms of employment. Contrast Elf Atochem North America, Inc., 339 NLRB 796 (2003) (employer a “per- fectly clear” successor when it informed employees it would provide them employment, recognize their seniori- ty, and grant equivalent salaries and benefits). However the Board disagreed with this rationale and came to the opposite conclusion, as follows: spondent’s certitude that the license would be granted and the transac- tion consummated. 6 Spruce Up Corp., 209 NLRB 194 (1974). 7 Id. Turning to the instant case, the judge, applying Spruce Up, found that the Burns “perfectly clear” exception does not apply because the Respondent informed Candlewood applicants that they would be employed only in a tempo- rary or probationary status. This, the judge reasoned, “should have signaled” to them that their terms and condi- tions of employment would change, thus raising the possi- bility that some might decline employment and rendering the “perfectly clear” exception inapplicable. We disagree. Although the Respondent did subject former Candlewood employees to what amounted to a probationary period, we nonetheless find, applying Spruce Up, that the Burns “perfectly clear” exception does apply because the Respondent “failed to clearly announce its in- tent to establish a new set of conditions prior to inviting former [Candlewood] employees to accept employment.” [Footnote omitted.] 209 NLRB at 195. Thus, the Board in Windsor determined that simply hiring em- ployees on a probationary basis, without clearly advising them of an intent to establish a new set of conditions of employment, is insufficient to create the inference that employees might decline employment; therefore, for purposes of determining union majority, their probationary status is immaterial. It seems unclear whether the Board in Windsor has directly addressed the precise issue presented here by the Respondent, namely, whether an offer of 90-day probationary employment, during which the employees will be receiving no health insur- ance or continuation of other contractual benefits previously enjoyed, constitutes an announcement and establishment of new terms and conditions of employment within the meaning and rationale of Spruce Up.8 In other words, is there a real possibil- ity that the Respondent’s changes to the employees’ current conditions of employment are sufficient to cause them to reject the offer of probationary employment and seek employment elsewhere? If so, then, under Spruce Up, the Union’s majority status remains uncertain until sometime after August 8.9 The Respondent assumes that it’s bargaining obligation at- tached only after the 90-day probationary period had expired on November 8, at which time it retained a majority of the former unit employees; thus, during the probationary period the em- ployees’ status as permanent employees was merely tentative. However, as noted, the Board in Windsor has found, in effect, that the status of former permanent employees, who are initially 8 Thus, in Windsor, it appears the employees were initially told only that they would be hired as “temporary employees” and were later advised that they would no longer have their previous benefits during their probationary period. 9 In this regard, the Respondent would apparently argue that in a bankruptcy setting the employees could have reasonably anticipated benefits inferior to what they had received under the predecessor’s tenure, and such lowered expectations would cause them to decline the probationary offer of employment and/or seek other employment in the interim. However it seems equally probable that, as experienced long- time employees who were familiar with the patients and their needs, the Respondent would make every effort to retain their services by offering them substantially the same benefits they previously enjoyed at the expiration of the probationary period. Accordingly, the one postulate is not more probable that the other. A & C HEALTHCARE SERVICES 279 hired by a successor employer as temporary or probationary employees, is not changed for purposes of determining union majority. The Respondent maintains that because it purchased the pre- decessor through a bankruptcy auction, it’s principles had only limited opportunity to learn about the facility prior to the pur- chase, and had been unable to perform a thorough “due dili- gence” investigation customarily attendant to the purchase of an ongoing business enterprise. Further, the Respondent main- tains it had no access to the facility or information about the employees until the Respondent’s principals walked through the door on August 8, and hired the employees sight unseen, not knowing the condition of the facility, the competence and qualifications of the employees or of the administra- tive/supervisory staff, or the physical needs of the patients. Accordingly, the Respondent suggests that under these circum- stances, particularly because it had been unable to preevaluate the qualifications and competence of the employees and staff, it was not a “perfectly clear” Burns successor on August 8; thus, to presume on August 8, that a majority of the employees would survive the probationary screening process or ultimately become permanent employees is simply an unrealistic presump- tion under the circumstances. There is no record evidence indicating the extent of the Re- spondent’s information concerning the facility, its supervisors, administrators and employees, prior to August 8, and therefore the Respondent’s arguments in its brief on this point are unsup- ported by record evidence. What is clear however, is that the Respondent’s negotiations with the predecessor culminated in the execution of the aforementioned operations transfer agree- ment on July 26, a detailed document consisting of some 21 pages, including provisions pertaining to the hiring “on a pro- bationary basis, each Facility Employee who elects to accept employment with New Operator. . . .”10 The record is devoid of any evidence showing that the facili- ty was other than a functioning health care institution, operating with the proper license in accordance with and under the scruti- ny of applicable governmental agencies, and subject to strict requirements and safeguards for the care and safety of its pa- tients. The fact that the facility was purchased through a bank- ruptcy auction may be relevant to its profitability,11 but it is not relevant to the qualifications or competency of the predeces- sor’s employees or staff. Accordingly, there seems to be no compelling reason to conclude that the employee complement inherited by the Respondent was generally less qualified and more likely to be replaced than any other complement of em- ployees; or to conclude that a special exception, under Burns and its progeny, should be carved out for successors who elect to acquire businesses through bankruptcy auctions. 10 The Respondent suggests that the hiring of the employees on a probationary basis was in effect mandated by the Bankruptcy Court. It seems clear, however, that this hiring arrangement was voluntarily negotiated between the Respondent and predecessor, and was not im- posed by the Bankruptcy Court. 11 However, many facilities of the predecessor were simultaneously sold as a part of the same bankruptcy proceeding, and it does not neces- sarily follow that the facility in question was contributing to the overall financial indebtedness of the predecessor. However, under the circumstances herein, it seems to make no difference whether the Respondent is a Burns “perfectly clear successor.” Assuming arguendo the Respondent was not a Burns “perfectly clear” successor on August 8, it is necessary to determine the date the Respondent’s bargaining obligation begins. I find that clearly this date was prior to the expiration of the 90-day probationary period. Insofar as the record shows, not one employee voluntarily left the Respondent’s employ during his or her probationary period; nor, insofar as the record shows, did the Respondent hire any new employees during this period. Further, there is no evidence that the Respondent in- tended to discharge a majority or even a substantial number of the former employees and replace them at the end of the proba- tionary period. Thus, the employee complement was not in a state of flux during this period, and the Respondent’s argument that its employee complement was indeterminate until Novem- ber 8, is not supported by the record evidence, as it clearly knew prior to November 8, the number of employees it intend- ed to discharge and, if necessary, replace. Accordingly, the Respondent’s permanent employee complement and the Un- ion’s majority status having been established prior to Novem- ber 8, I find that its bargaining obligation attached at some point between September 14, the date the Union requested that Respondent recognize and bargain collectively with the Un- ion,12 and prior to November 8, the date when the Respondent unilaterally established terms and conditions of employment for its then permanent employee complement. On the basis of the foregoing, I conclude that the Respond- ent’s refusal to recognize and bargain with the Union from sometime prior to November 8 until January 3, 2008, is viola- tive of Section 8(a)(5) and (1) of the Act, as alleged. I further conclude that the changes to the employees’ terms and condi- tions of employment made on and after November 8, constitut- ed unilateral changes in violation of Section 8(a)(5) and (1) of the Act, as alleged. The complaint also alleges that the Respondent unlawfully withdrew recognition from the Union. The parties stipulated that during the January 30, 2008 bargaining session the Re- spondent withdrew recognition from the Union, but rescinded this withdrawal of recognition the following day. The record contains no further evidence regarding this matter. As repre- sented by Respondent’s attorney during his opening statement at the hearing, something occurred during the January 30 bar- gaining session that caused him to lose his temper and to ab- ruptly withdraw recognition. Under the circumstances, the Respondent’s conduct is tantamount to one party simply walk- ing out in the middle of a bargaining session, certainly not an uncommon occurrence during the sometimes contentious course of bargaining. The fact that the Respondent immediate- ly rescinded such conduct and thereafter resumed bargaining 12 As the Union did not request recognition until September 14, it appears the Respondent had no bargaining obligation until that date. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 280 is, in effect, an admission of error. Nor is there any evidence that this conduct impacted subsequent bargaining. Under the circumstances, I shall dismiss this allegation of the complaint.13 CONCLUSIONS OF LAW AND RECOMMENDATIONS 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and a health care institution within the meaning of Section 2(14) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has violated Section 8(a)(5) and (1) of the Act as found herein. THE REMEDY Having found that the Respondent has violated and is violat- ing Section 8(a)(5) and (1) of the Act, I recommend that, on request of the Union, the Respondent be required to rescind any departures from terms and conditions of employment that, ab- sent the Respondent’s unilateral conduct, would have existed for permanent employees on November 8, 2007. I further recommend that the Respondent retroactively restore such terms and conditions of employment until such time as the parties reach a collective-bargaining agreement or a bargaining impasse.14 See generally Planned Building Services, 347 NLRB 670 (2006); Windsor Convalescent Center of North Long Beach, 351 NLRB 975 (2007). I shall also recommend that the Respondent be required to cease and desist from making unilateral changes, and from in any other like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. Finally, I shall recommend the posting of an appropriate notice, attached hereto as “Appendix.” On these findings of fact and conclusions of law and on the entire record, I issue the following recommended15 13 Passavant Memorial Hospital, 237 NLRB 138 (1978), cited by the General Counsel, is inapposite. 14 The matter of the Respondent’s health care obligations is yet an open issue. Thus, in the operations transfer agreement, sec. 2.5(f), the Respondent is required to establish and maintain a group healthcare plan for the general benefit of it its employees and their dependents. Accordingly, contrary to the position of the General Counsel, the Re- spondent may not have any continuing obligation under the prior group healthcare plan, as this matter is governed by the OTA; and, in addi- tion, whether the new healthcare plan may be deemed an initial term and condition of employment not subject to the Respondent’s bargain- ing obligation is another matter for consideration in a compliance pro- ceeding. 15 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes. ORDER The Respondent, A & C Healthcare Services, Millbrae, Cali- fornia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally changing wages, hours, and other terms and conditions of employment of employees without first giving notice to and bargaining with the Union in the following appro- priate unit: All employees performing work covered by the collective- bargaining agreement between Pleasant Care and the Union effective October 1, 2006 through June 15, 2008. (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, which is necessary to effectuate the purposes of the Act. (a) On request of the Union, rescind any departures from terms and conditions of employment that existed prior to com- mencing operations at the facility on August 8, 2007, retroac- tively restoring preexisting terms of employment, as set forth in the remedy section of this decision. (b) On request of the Union, bargain collectively with the Union as the exclusive representative of the employees in the unit described above with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if agree- ment is reached, embody such agreement in a signed document. (c) Within 14 days after service by the Region, post at its fa- cility copies of the attached notice marked “Appendix.”16 Cop- ies of the notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent’s repre- sentative, shall be posted immediately upon receipt thereof, and shall remain posted by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Within 21 days after service by the Regional Office, file with the Regional Director for Region 20 a sworn certification of a responsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 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 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.”