Alaris Health at Boulevard East

372 NLRB No. 6 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Alaris Health at Boulevard East1 and 1199 SEIU United Healthcare Workers East. Case 22–CA– 268083 November 23, 2022 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND RING On January 26, 2022, Administrative Law Judge Ken- neth W. Chu issued the attached decision. The General Counsel and the Charging Party Union each filed excep- tions and supporting briefs, and the Respondent filed a combined answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.2 The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,3 and conclusions only to the extent consistent with this Decision and Order.4 For the reasons set forth below, we find, contrary to the judge, that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally rescinding, reducing, and dis- continuing a set of “hourly rate bonuses,” paid to unit em- ployees for all hours worked, without providing the Union advance notice and an opportunity to bargain. Addition- ally, we shall grant the General Counsel’s Motion for Par- tial Summary Judgment on paragraphs 16 through 87 of the compliance specification, which allege amounts of backpay owed to each affected employee, because the Re- spondent failed to deny those allegations with the speci- ficity required by the Board’s Rules and Regulations. I. FACTUAL BACKGROUND Respondent Alaris Health at Boulevard East operated a nursing home and rehabilitation facility located in Gutten- berg, New Jersey, until it closed in November 2020.5 The chain of events concerning changes to employee compensation began in April, near the onset of the first wave of the COVID-19 pandemic. In a memo to staff dated April 1, the Respondent unilaterally granted all em- ployees a 25-percent hourly rate bonus starting April 2 and continuing through “at least April 30.” The Respondent 1 We have amended the case caption to conform to the General Coun- sel’s complaint. 2 Member Wilcox did not participate in the consideration of this case. 3 In the absence of exceptions, we adopt the judge’s finding that the Respondent violated Sec. 8(a)(5) and (1) of the Act by failing to furnish relevant information requested by the Union on September 4, 2020. characterized this as a “special COVID19 hourly rate bo- nus” and noted that the increase would “apply to all worked hours” but not to any accrued paid time-off taken by employees. There is no dispute that employees who were out sick, on vacation, or otherwise on paid leave were not eligible to receive these or any subsequent in- creases. After learning secondhand about the Respond- ent’s change, the Union emailed the Respondent to ex- press its consent to the implementation of the hourly rate bonuses. Later, in an April 2 email to the Respondent, the Union made clear that it was “entitled to notice and an op- portunity to bargain before any changes (including modi- fications to the already implemented and agreed to in- creases) are implemented.” On April 7, the Respondent circulated another memo to staff, notifying them that “[i]n appreciation and support of th[eir] dedication, effective immediately through April 30th all of our nursing and respiratory therapy staff will receive a COVID19 hourly rate bonus equal to 100% of their current hourly rate. The hourly bonus will apply to all worked hours (excluding sick or benefit time).” As be- fore, the Respondent announced and implemented this in- crease unilaterally, without giving the Union advance no- tice and an opportunity to bargain. After learning that a portion of the staff would be receiving this 100-percent hourly rate bonus, the Union expressed its consent to the implementation of the increase but again emphasized to the Respondent that the Union was entitled to notice and an opportunity to bargain before any subsequent changes to compensation were carried out. As found by the judge, between May 1 and July 26, the Respondent unilaterally reduced or eliminated the afore- mentioned increases. Specifically, effective May 1, the Respondent lowered the 100-percent bonus for nursing and respiratory staff to 25 percent. Starting May 17, the Respondent eliminated the 25-percent bonus for all staff except direct nursing providers, a category that includes certified nursing assistants (CNAs), who are in the bar- gaining unit. Starting July 26, the Respondent unilaterally reduced bonuses for CNAs from 25% to $1.50 per hour for all hours worked. This $1.50 per hour bonus for CNAs remained in effect permanently, until the Respondent closed its facility in November. Upon learning of each round of decreases and elimina- tions, the Union registered its disagreement, reminding the Respondent that it had an obligation to provide the Union 4 We shall amend the judge’s conclusions of law to conform to the violations found. We shall amend the remedy and modify the judge’s recommended Order to conform to the violations found and to tailor the wording to the particular circumstances of this case. We shall also sub- stitute a new notice to conform to the Order as modified. 5 Unless otherwise indicated, all subsequent dates are in 2020. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 with advance notice and a meaningful opportunity to bar- gain prior to carrying out any changes to compensation.6 The record shows that after April 2, the Respondent did not reply to any of the Union’s correspondence in this mat- ter. II. DISCUSSION a. The Respondent violated Section 8(a)(5) by unilater- ally rescinding, reducing, and discontinuing employee bonuses The judge found that the Respondent’s bonus payments were gifts because they were limited in duration and “not tied to any employment-related factors,” like “perfor- mance, seniority, production, attendance or . . . the gross profits of the facility.” The judge characterized the hourly rate bonuses as signs of “appreciation to the staff when the COVID-19 pandemic started.” Accordingly, the judge concluded that the hourly rate bonuses were not terms and conditions of employment and that the Respondent had no obligation to negotiate with the Union before reducing or discontinuing them. We disagree. While the judge cited to the appropriate legal standard, he failed to properly apply it to the facts of this case. It is well settled that wages, hours, and other terms and conditions of employment are mandatory sub- jects of bargaining over which an employer has an obliga- tion to bargain with its employees’ exclusive collective- bargaining representative. NLRB v. Katz, 369 U.S. 736, 742-743 (1962); Harley-Davidson Motor Co., 366 NLRB No. 121, slip op. at 2 (2018). In determining whether a bonus constitutes a mandatory subject of bargaining, the Board considers whether the payment of the bonus was tied to work performance, earnings, seniority, production, 6 The Union’s counsel testified that he received a copy of the Re- spondent’s letter memorializing the May 1 decrease months later, in the fall of 2020. 7 The judge correctly observed that the Board also considers the reg- ularity of a bonus in determining whether it is a term and condition of employment, but this factor is neither necessary nor sufficient in the anal- ysis. See, e.g., Bob's Tire, above, slip. op. at 1 (finding bonus to be a gift where it was given for over 7 years, but there was no specific evidence about its amount or evidence that the bonus was dependent on any em- ployment-based criteria); Hospital Menonita De Guyama, Inc., 371 NLRB No. 108, slip op. at 1, 8–9, 10 fn. 4, 27 (2022) (finding one-time bonus of $150 to be term and condition of employment where bonus was tied to employment-related hazard of working during a hurricane); SMI/Division of DCX-CHOL Enterprises, Inc., 365 NLRB No. 152, slip op. at 1, 22–23 (2017) (finding newly issued bonus to be term and con- dition of employment where bonus was tied to employment-related achievement of performance and production goal); Harvstone Manufac- turing Corp., 272 NLRB 939, 939 fn. 1 (1984) (finding employer did not violate the Act by unilaterally discontinuing Christmas bonus given for 10 years, where the bonuses were in the nature of a gift rather than a term and condition of employment), enf. granted in part and denied in part on other grounds 785 F.2d 570 (7th Cir. 1986). Accordingly, even if all of or other employment-related factors. Benchmark Indus- tries, 270 NLRB 22, 22 (1984), enfd. mem. sub nom. Amalgamated Clothing v. NLRB, 760 F.2d 267 (5th Cir. 1985); Bob's Tire Co., Inc., 368 NLRB No. 33, slip op. at 1 (2019).7 The judge erred in concluding that the bonuses were not tied to any employment-related factor by failing to con- sider that the hourly rate bonus was only paid for hours that a unit employee actually worked. The Respondent’s April 1 and April 7 memos underscored that attendance was a prerequisite to receiving any hourly rate bonus, and, as noted above, the parties do not dispute that employees would not receive any hourly rate bonus for hours not worked because of vacation, sick leave, or any other rea- son. That the hourly rate bonus was paid only for hours actually worked reflected the reality that working closely with residents in a nursing home during the early days and months of the pandemic meant exposure to the risk of in- fection. Given these unique challenges, the increased hourly rate compensation to the Respondent’s nursing home staff could be considered a form of hazard pay, which is a mandatory subject of bargaining. See, e.g., Hospital Menonita De Guyama, Inc., 371 NLRB No. 108, slip op. at 1, 8–9, 10 fn. 4, 27 (adopting the judge’s finding that the employer violated Section 8(a)(5) by unilaterally issuing a $150 bonus to staff who worked overnight dur- ing Hurricane Maria). The precedent cited by the judge, including Dura-Line Corp., 366 NLRB No. 126, slip op. at 4 (2018), rev. denied 807 Fed.Appx. 1 (D.C. Cir. 2019), and Bob’s Tire, above, slip op. at 1, is not to the contrary.8 In Dura-Line, the Board dismissed an allegation that the employer violated Section 8(a)(5) by failing to bargain over a $9 reduction in the increases here were only paid for a duration of several months at the start of the pandemic, such that there was a lack of regularity, the absence of this one factor would not alter the outcome of our analysis. In any event, the final change that the Respondent made to its bonus scheme granted a permanent $1.50 per hour pay increase for all CNAs that lasted from its implementation until the Respondent’s facility closed. The per- manence of that pay increase further supports the conclusion that the bo- nuses were a mandatory subject of bargaining. 8 See also SMI/Division of DCX-CHOL Enterprises, Inc., supra, slip op. at 1, 22–23 (finding employer violated Sec. 8(a)(5) by unilaterally doling out bonuses to employees for meeting certain production and ef- ficiency targets); Waxie Sanitary Supply, 337 NLRB 303, 303–304 (2001) (finding employer violated Sec. 8(a)(5) by unilaterally discontin- uing bonus program based in part on the company’s gross profits and employee performance); Sykel Enterprises, Inc., 324 NLRB 1123, 1123– 1125 (1997) (finding employer violated Sec. 8(a)(5) by unilaterally dis- continuing Christmas bonuses where bonus amounts were based in part on employee attendance and performance); Cypress Lawn Cemetery Assn., 300 NLRB 609, 613 fn. 9 (1990) (finding employer violated Sec. 8(a)(5) by unilaterally handing out paid vacations to Hawaii because they were a reward for good work). ALARIS HEALTH AT BOULEVARD EAST 3 the value of Thanksgiving bonuses as these were “token items given to all employees on an equal basis” and were not based on any employment-related factors. And in Bob’s Tire, the Board found that the employer did not vi- olate the Act by unilaterally discontinuing a Christmas bo- nus of between $20 and $100 absent proof that the bonus was dependent on any employment-based criteria. The facts of Dura-Line and Bob’s Tire are distinguishable from those presented here. Unlike those employers, which awarded their staffs the holiday bonuses without regard to any employment-related factor, the Respondent increased the hourly rate of pay for those hours during which em- ployees actively worked on the front lines in a dangerous health care setting during the start of the pandemic.9 Accordingly, unlike the judge, we find that the hourly rate bonuses were a term and condition of employment that could not be changed unilaterally. We recognize that the Union consented to the imple- mentation of the bonuses. However, the Union also made clear that it expected to be notified and given an oppor- tunity to bargain over any future modifications of the bo- nuses. The Respondent’s exclusion of the Union from any deliberations prior to modifying the bonuses, particularly after the Union repeatedly reminded the Respondent of its right to be consulted, was “antithetical to our statutory sys- tem of collective bargaining meant to promote industrial stability.” McClatchy Newspapers, Inc., 321 NLRB 1386, 1391 (1996).10 We therefore reverse the judge and find that the Re- spondent violated Section 8(a)(5) and (1) of the Act by unilaterally rescinding, reducing, and discontinuing em- ployee bonuses starting May 1.11 9 In finding that the bonuses were gifts, the judge appears to have been influenced in part by his view that they represented a “significant and substantial windfall” to employees. We disagree with this charac- terization in light of the fact that employees earned the bonuses by providing care to residents of the Respondent’s facility during a pan- demic. 10 The judge also erred in finding that a provision in the parties’ ex- pired collective-bargaining agreement permitted the Respondent to uni- laterally rescind, reduce, and eliminate the hourly rate bonuses. In Nex- star Broadcasting, Inc. d/b/a KOIN-TV, the Board held that “provisions in an expired collective-bargaining agreement do not cover post-expira- tion unilateral changes unless the agreement contained language explic- itly providing that the relevant provision would survive contract expira- tion.” 369 NLRB No. 61, slip op. at 2 (2020); see also Buck Creek Coal, 310 NLRB 1240, 1240 fn. 1 (1993) (“[W]e note that a waiver of bargain- ing rights contained in a contractual management-rights provision nor- mally is limited to the time during which the contract that contains it is in effect.”). The provision in question, Section 10(B) of the expired b. General Counsel’s Motion for Partial Summary Judgment on the compliance specification The General Counsel excepts to the judge’s failure to grant her Motion for Partial Summary Judgment on para- graphs 16 through 87 of the “compliance specification” portion of the second amended complaint, compliance specification, and notice of hearing.12 The General Coun- sel argues that the Respondent’s general denials of those allegations were insufficient under the Board’s Rules and Regulations. As explained below, we agree and grant the General Counsel’s Motion for Partial Summary Judgment. On August 30, 2021, the General Counsel issued the second amended complaint, compliance specification, and notice of hearing in this matter. On September 20, 2021, the Respondent filed its an- swer. The answer offered general denials to paragraphs 16 through 86. In response to both paragraphs identified as “87,” the Respondent answered that the allegations set forth were legal conclusions to which no response was re- quired and that, to the extent that a response was required, the Respondent denied the allegations. On October 20, 2021, the General Counsel notified the Respondent that its answer was deficient because of its lack of specificity, and advised the Respondent that she would move for summary judgment if a more detailed an- swer was not submitted by October 27, 2021. On November 1, 2021, following the Respondent’s fail- ure to submit an amended answer, the General Counsel filed a Motion for Partial Summary Judgment. The filing of the General Counsel’s motion coincided with the date of the hearing in this case. The General Counsel excepts to the judge’s failure to rule on the motion for partial summary judgment and sim- ultaneously renews the motion before the Board in her brief. agreement, does not specify, either implicitly or explicitly, that it would survive after the agreement’s expiration. 11 In light of our finding that the Respondent’s hourly rate bonuses were mandatory subjects of bargaining under Benchmark Industries, above, we decline the General Counsel’s invitation to revisit that prece- dent. 12 The compliance specification contains two paragraphs numbered “87.” The first par. 87 alleges that employees are entitled to be compen- sated for any adverse tax consequences of receiving a lump-sum award in a year other than the year in which the income would have been earned had the Act not been violated. This first par. 87 also refers to Attachment A, which identifies amounts allegedly owed to each employee but, in a footnote, the General Counsel specifically acknowledged that the amounts will “need to be updated to reflect the actual year of payment.” The second par. 87 is a summary of all prior paragraphs; it sets forth the total amount owed for backpay and the total conditional amount of ex- cess tax liability, and asserts that interest shall accrue until payment is made. We understand the General Counsel to move for summary judg- ment on both paragraphs identified as “87.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 The Respondent has not filed an amended answer or an opposition in response to the General Counsel’s motion.13 On the entire record, the Board makes the following Ruling on Motion for Partial Summary Judgment Section 102.56(b) and (c) of the Board’s Rules and Reg- ulations states: (b) Form and contents of answer. The answer to the specification must be in writing, signed and sworn to by the Respondent or by a duly authorized agent with ap- propriate power of attorney affixed, and contain the ad- dress of the Respondent. The answer must specifically admit, deny, or explain each allegation of the specifica- tion, unless the Respondent is without knowledge, in which case the Respondent must so state, such statement operating as a denial. Denials must fairly meet the sub- stance of the allegations of the specification at issue. When a Respondent intends to deny only a part of an allegation, the Respondent must specify so much of it as is true and deny only the remainder. As to all matters within the knowledge of the Respondent, including but not limited to the various factors entering into the com- putation of gross backpay, a general denial will not suf- fice. As to such matters, if the Respondent disputes ei- ther the accuracy of the figures in the specification or the premises on which they are based, the answer must spe- cifically state the basis for such disagreement, setting forth in detail the Respondent’s position and furnishing the appropriate supporting figures. (c) Failure to answer or to plead specifically and in de- tail to backpay allegations of specification. If the Re- spondent fails to file any answer to the specification within the time prescribed by this section, the Board may, either with or without taking evidence in support of the allegations of the specification and without further notice to the Respondent, find the specification to be true and enter such order as may be appropriate. If the Re- spondent files an answer to the specification but fails to deny any allegation of the specification in the manner required by paragraph (b) of this section, and the failure to deny is not adequately explained, such allegation will be deemed to be admitted as true, and may be so found 13 The Respondent did not submit an amended answer or opposition to the General Counsel’s motion prior to the issuance of the judge’s de- cision on January 26, 2022. Moreover, the Respondent’s May 26, 2022 answering brief on exceptions does not respond to the General Counsel’s assertion that the motion must be granted if the Board were to find that the Respondent violated Sec. 8(a)(5) by rescinding and eliminating the hourly rate bonuses. In sum, the Respondent has not contested the Gen- eral Counsel’s exception to the judge’s failure to grant her motion for partial summary judgment. by the Board without the taking of evidence supporting such allegation, and the Respondent will be precluded from introducing any evidence controverting the allega- tion. The General Counsel’s compliance specification sets forth a methodology for calculating gross backpay and ex- cess tax liability and delineates the computations for each of the alleged discriminatees. The General Counsel con- tends that the Respondent’s answer to the relevant para- graphs of the compliance specification was inadequate be- cause the Respondent merely denied those allegations without providing an adequate explanation for the denials or an alternate calculation of backpay or adverse tax con- sequences. We agree. It is well settled that a general denial of backpay calcu- lations is insufficient to comply with the specificity re- quirements of Section 102.56(b) and (c) where the answer fails to specify the basis for the disagreement with the backpay computations contained in the specification, fails to offer any alternative formula for computing backpay, fails to provide appropriate supporting figures for amounts owed, or fails adequately to explain any failure to do so. E.g., Flaum Appetizing Corp., 357 NLRB 2006, 2007 (2011); Power Equipment Co., 341 NLRB 249, 249-250 (2004); Paolicelli, 335 NLRB 881, 883 (2001); Baum- gardner Co., 298 NLRB 26, 27 (1990), enfd. mem. 972 F.2d 1332 (3d Cir. 1992). Moreover, the gross backpay owed to employees in this case is clearly within the Re- spondent’s knowledge because its payroll department modified staff bonuses from April to November 2020. See Mining Specialists, Inc., 330 NLRB 99, 101 (1999). Hence, the Respondent’s answers to the backpay allega- tions (in paragraphs 1-86 and the second paragraph “87” of the compliance specification) were inadequate under the Board’s Rules and Regulations. Likewise, the Re- spondent’s general denial of the General Counsel’s alle- gations regarding adverse tax consequences (set forth in the first paragraph “87” of the compliance specification) was inadequate.14 Accordingly, we grant the General Counsel’s motion and deem that the allegations in para- graphs 16 through 87 (first and second) of the compliance specification are admitted as true, and the Respondent is precluded from introducing evidence challenging them.15 14 See 1621 Route 22 West Operating Co., LLC d/b/a Somerset Valley Rehabilitation & Nursing Center, 371 NLRB No. 101, slip op. at 6 (2022) (finding that employer’s general denial of compliance specifica- tion’s allegations regarding liability for adverse tax consequences was deficient under Section 102.56(b) of the Board’s Rules and Regulations because the answer failed to provide an alternative formula or figures for computing excess tax liability). 15 Though its facility closed in November 2020, the Respondent has not argued that the closure makes it financially unable to comply with its ALARIS HEALTH AT BOULEVARD EAST 5 AMENDED CONCLUSIONS OF LAW 1. Delete Conclusion of Law 6. 2. Insert the following as Conclusion of Law 4 and re- number the judge’s Conclusion of Law 4 and subsequent paragraphs accordingly: “(4) The Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally rescinding, reducing, and discon- tinuing employee bonuses starting May 1, 2020.” AMENDED REMEDY Having found that the Respondent engaged in certain unfair labor practices, in addition to the remedies ordered by the judge we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent vi- olated Section 8(a)(5) and (1) of the Act by unilaterally rescinding, reducing, and discontinuing employee bo- nuses starting May 1, 2020, we shall order the Respondent to make the affected employees whole by paying them the amounts set forth below, with interest accrued to the date of payment as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010), minus tax withholdings required by Federal and State laws. In addi- tion, we shall order the Respondent to compensate af- fected employees for any adverse tax consequences of re- ceiving lump-sum backpay awards in accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), and to file with the Regional Director for Re- gion 22, within 21 days of the date the final amount of each affected employee’s make-whole award is fixed, a report allocating the backpay awards to the appropriate calendar year. We shall also order the Respondent to file with the Regional Director for Region 22, within 21 days of the date the final amount of each affected employee’s make-whole award is fixed by agreement or Board order or such additional time as the Regional Director may al- low for good cause shown, a copy of affected employees’ corresponding W-2 form(s) reflecting the backpay awards.16 Finally, because the Respondent’s facility was closed in November 2020, we shall order the Respondent to mail a copy of the attached notice to the Union and to the last known addresses of its former employees to inform them of the outcome of this proceeding. remedial obligations. In any event, the issue in a backpay proceeding is the amount due, not a respondent’s ability to pay. Scotch & Sirloin Res- taurant, 287 NLRB 1318, 1320 (1988). Therefore, the Respondent’s fi- nancial situation is not a basis for denying the General Counsel’s Motion for Partial Summary Judgment. See Judd Contracting, Inc., 338 NLRB 676, 676 fn. 3 (2002), enfd. 76 Fed.Appx. 651 (6th Cir. 2003). ORDER The National Labor Relations Board orders that the Re- spondent, Alaris Health at Boulevard East, Guttenberg, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally changing the terms and conditions of employment of its unit employees without first notifying 1199 SEIU United Healthcare Workers East (the Union) and giving it an opportunity to bargain. (b) Refusing to bargain collectively with the Union by failing and refusing to furnish it with requested infor- mation that is relevant and necessary to the Union’s per- formance of its functions as the collective-bargaining rep- resentative of the Respondent’s unit employees. (c) 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) Before implementing any changes in wages, hours, or other terms and conditions of employment of unit em- ployees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of em- ployees in the following bargaining unit at the Respond- ent’s facility in Guttenberg, New Jersey: All CNAs, dietary, housekeeping, recreational aides, cooks, and all other employees; excluding professional employees, registered nurses, LPNs, confidential em- ployees, office clerical employees, supervisors, watch- men and guards. (b) Make affected employees whole for loss of earnings suffered as a result of the unlawful unilateral changes in the amounts set forth below, plus interest. (c) Compensate affected employees for the adverse tax consequences of receiving lump-sum backpay awards, and file with the Regional Director for Region 22, within 21 days of the date the final amount of each affected em- ployee’s make-whole award is fixed, a report allocating the backpay awards to the appropriate calendar year for each employee. (d) File with the Regional Director for Region 22, within 21 days of the date the final amount of each af- fected employee’s make-whole award is fixed or such ad- ditional time as the Regional Director may allow for good 16 We have modified the wording of the standard AdvoServ of New Jersey and Cascades Containerboard remedies to correspond to the par- ticular circumstances of this case. See AdvoServ of New Jersey, Inc., 363 NLRB 1324, 1324 (2016); Cascades Containerboard Packaging—Niag- ara, 370 NLRB No. 76, slip op. at 2–3 (2021), as modified in 371 NLRB No. 25 (2021). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 cause shown, a copy of each backpay recipient’s corre- sponding W-2 form(s) reflecting the backpay awards. (e) Furnish to the Union in a timely manner the infor- mation requested by the Union on or about September 4, 2020, pertaining to a grievance over the nonpayment of medical bills of unit employees. (f) Within 14 days after service by the Region, dupli- cate and mail, at its own expense, copies of the attached notice marked “Appendix” to the Union and to all employ- ees who were employed by the Respondent at any time since May 1, 2020. In addition to physical mailing of pa- per notices, the 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 custom- arily communicated with its employees by such means. (g) 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 com- ply. IT IS FURTHER ORDERED that the General Counsel’s Mo- tion for Partial Summary Judgment is granted as to para- graphs 16 through 87 (first and second) of the second amended complaint, compliance specification, and notice of hearing, and the Respondent IS ORDERED to make whole the employees named below by paying them the amounts following their names, with interest accrued to the date of payment as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010), plus compensation for adverse tax consequences in accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), minus tax withholdings required by Federal and State laws. Employee Amount Owed CNAs Alzate, Aracelly $2,601 Campbell, Mildred 24,076 Carranza, Fatima 10,605 Checo, Mayra 11,331 Chicas-Rodriguez 2,228 Cruz, Emelitza 1,209 David, Beatrix 8,963 Diaz, Norma 9,241 Duque, Elenita 86 Espinoza, Aurelia 6,660 Garcia, Claudia 4,317 Gomillion, Glynd 6,898 Gonzalez, Celilia 8,959 James, Jamileht 11,807 Mendez, Vianny 7,620 Nieves, Virginia 22,511 Ordonez, Reina 15,826 Pagan, Dora 9,843 Paulino, Oneida 9,317 Perez, Luz Leticia 8,446 Rivas, Patricia 9,498 Santay, Paula 14,200 Solis, Audrey 227 Woods, Andrea 12,138 Zambrano, Candid 616 Bocio-Elias, Maril 9,868 Calderon, Maria 8,805 Castillo, Chary 17,278 Flores-Rivera, Ya 9,285 Hernandez, Liz 5,151 Hisa, Atsede 10,600 Marcial, Tasha 2,748 Mena, Yadria 15,029 Osorio, Sandra 7,141 Rodriguez, Ana Si 2,536 Tejera, Martha 2,833 Ruiz, Milady 180 RECREATION Collado, Yesenia $1,369 Ljutich, Helen 281 Villegas, Ena 2,088 ALARIS HEALTH AT BOULEVARD EAST 7 Villegas, Teresa 2,743 Zambrano, Candid 792 DIETARY Argueta, Chrisian $524 Carbonel, Enia 1,327 Gilbert, Maurice 2,875 Gutierrez, Jack 49 Ortiz, Gerardo 2,381 Paredes, Carlos 982 Paredes, Ruth 289 Plasencia, Margo 2,616 Rodriguez, Maria 1,452 Rodriguez, Palma 1,024 Sandoval, Francisco 1,162 Vasquez, Rocio 3,201 HOUSEKEEPING Arias, Rosa $1,995 Bastista Garcia, Denny 3,144 Duran, Odalis 2,407 Garcia, Julio 1,879 Gayle, Roy 2,480 Gonzalez, Tatiana 2,676 Melendez, Myrna 1,438 Mora, Ruben 2,205 Salazar, Zoraida 2,549 Tabares, Yolanda 2,669 TOTAL $369,273 Dated, Washington, D.C. November 23, 2022 _____________________________________ Lauren McFerran, Chairman _____________________________________ Marvin E. Kaplan, Member _____________________________________ John F. Ring, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES MAILED 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 mail 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 ac- tivities. WE WILL NOT change your terms and conditions of em- ployment without first notifying 1199 SEIU United Healthcare Workers East (the Union) and giving it an oppor- tunity to bargain. WE WILL NOT refuse to bargain collectively with the Un- ion by failing and refusing to furnish it with requested in- formation that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of our 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, before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representa- tive of our employees in the following bargaining unit: All CNAs, dietary, housekeeping, recreational aides, cooks, and all other employees; excluding professional employees, registered nurses, LPNs, confidential em- ployees, office clerical employees, supervisors, watch- men and guards. WE WILL make affected employees whole for loss of earnings suffered as a result of our unlawful reductions and eliminations of employee bonuses in the amounts set forth in the Board’s Order, plus interest. WE WILL compensate affected employees for the ad- verse tax consequences, if any, of receiving lump-sum DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 backpay awards, and WE WILL file with the Regional Di- rector for Region 22, within 21 days of the date the final amount of each affected employee’s make-whole award is fixed, a report allocating the backpay awards to the appro- priate calendar year for each employee. WE WILL file with the Regional Director for Region 22, within 21 days of the date the final amount of each af- fected employee’s make-whole award is fixed or such ad- ditional time as the Regional Director may allow for good cause shown, a copy of each backpay recipient’s corre- sponding W-2 form(s) reflecting the backpay award. WE WILL furnish to the Union in a timely manner the information requested by the Union on or about Septem- ber 4, 2020, pertaining to a grievance over the nonpayment of medical bills of unit employees. ALARIS HEALTH AT BOULEVARD EAST The Board’s decision can be found at www.nlrb.gov/case/22-CA-268083 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. Michael P. Silverstein, Esq., for the General Counsel. David F. Jasinski, Esq., of Newark, New Jersey, for the Respondent. William S. Massey, 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 remotely in a video hearing on November 1, 2021, pursuant to a consolidated complaint issued by Region 22 for the National Labor Relations Board (NLRB) on February 23, 2021.1 1 All dates are in 2020 unless otherwise noted. 2 The named Respondents in the consolidated complaint were Alaris Health Boulevard East, Alaris Health at Castle Hill, Alaris Health at Hamilton Park, Alaris Health at Harborview, Alaris Health at Rochelle Park, and Alaris Health at the Atrium. The six nursing facilities were under the corporate umbrella name of Alaris Health. 3 The General Counsel’s exhibits are identified as “GC Exh.” There were no hearing exhibits for the Respondent. The posthearing brief of Six Respondents were named in the consolidated complaint.2 The second amended complaint, dated August 30, 2021, named only Alaris Health at Boulevard East (GC Exh. 1 (d) and (m)).3 The second amended complaint alleges that the Respondent Alaris Health at Boulevard East (Respondent or Alaris) unilater- ally rescinded, reduced and discontinued wage increases in April 2020 without first notifying the Union or providing the Union with an opportunity to bargain. The General Counsel alleges that the monetary increases for the unit employees were wage in- creases while the Respondent maintained that the increases were one-time bonuses with specific start and end dates.4 The complaint also alleges that on about September 4, 2020, the Union made an information request necessary for the union’s performance of its duties as the exclusive collective-bargaining representative of the unit employee and that the Respondent has failed and refused to furnish the Union with the information re- quested (GC Exh. 1(m) at pars. 8, 9, 11, 12, and 13). By the conduct described above, the amended complaint alleges that the Respondent violated Section 8(5) and (1) of the National Labor Relations Act (Act). The second amended complaint addressed the amount of backpay owed by the Respondent to each unit employee when the monetary increases were granted and subsequently reduced and eliminated (GC Exh. 1(n) at 4). The General Counsel moved for partial summary judgment on November 1, 2021, after the Respondent failed to provide a basis for the general denials in its answer and failed to detail an alternative backpay calculation as required under Section 102.56(b) and (c) of the Board’s Rules and Regulations (GC Exh. 21). At the hearing, the Respondent was provided with another opportunity to submit an opposition to the motion and to respond to the compliance specification (Tr. 164). As of the date of this decision, no response to the partial summary judgment motion was filed by the Respondent. On the entire record, including my assessment of the wit- nesses’ credibility5 and my observations of their demeanor at the hearing and corroborating the same with the adduced evidence of record, and after considering the briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT I. JURISDICTION AND UNION STATUS The Respondent Alaris Health at Boulevard East has been a domestic corporation, with an office and place of business lo- cated in Guttenberg, New Jersey, until about November 15, 2020, and has been a nursing home and rehabilitation center en- gaged in providing inpatient medical care. The Respondent de- rived gross revenues in excess of $100,000 in conducting its op- erations annually until about November 15, 2020, and has annu- ally purchased and received goods valued in excess of $5000 the General Counsel is identified as “GC Br.” and the Respondent as “R. Br.” The hearing transcript is referenced as “Tr.” 4 In my findings of fact, I will portrait the monetary increases as either a “wage increase” or “bonus” as characterized by the parties. 5 Witnesses testifying at the hearing included William S. Massey, Sherry McGhie, and Jennifer Puleo. ALARIS HEALTH AT BOULEVARD EAST 9 from points outside the State of New Jersey until about Novem- ber 15, 2020 (GC Exh. 1(n) par. 2(a-c)). In its answer, the Re- spondent admits to paragraph 2 of the second amended com- plaint (GC Exh. 1(p)). As such, I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and has been a health care institution within the meaning of Section 2(14) of the Act. The Union, 1199 SEIU United Healthcare Workers East, is and has been a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES During the relevant period of time, Respondent was an inpa- tient nursing home and medical care facility. The Respondent ceased operations on about November 15, 2020. At all material times, 1199 SEIU United Healthcare Workers East has been the exclusive collective-bargaining representative of the following unit within the meaning of Section 9(b) of the Act: All CNAs, dietary, housekeeping, recreational aides, cooks, and all other employees excluding professional employees, registered nurses, LPNs, confidential employees, office clerical employees, supervisors, watchmen and guards. The Respondent and Union’s collective-bargaining relation- ship was embodied in an agreement from April 1, 2010, through March 31, 2014. At the time of the agreement, the Respondent was known as Palisades Healthcare Center and had been re- named as Alaris Health Boulevard East (GC Exh. 2; Tr. 19, 20). Due to the national COVID-19 pandemic in early spring 2020, the State of New Jersey implemented a statewide shelter-in-place mandate affecting most governmental activities and commercial businesses, including the nursing home industry. While most employees were permitted to work from alternate locations, first responders and essential workers, continued to commute to their jobsites. To their credit, unit employees continued with their re- sponsibilities in protecting the health and well-being of patients at the Alaris facility. On March 30, the Union sent a letter to Francine Sokolowski, the administrator of the Alaris Health at Boulevard East facility at the time. The letter encouraged a pro- active relationship between the Union and the Respondent to ad- dress the unique problems caused by the pandemic. In the letter, the Union requested clear policies and guidelines on dealing with COVID-19 related issues at the facility, such as implementation of a COVID-19 outbreak response policy; quarantine guidelines of affected employees by the virus; providing the Union with a directory of unit employees with phone numbers, home ad- dresses, and emails addresses; a relaxation of grievance and ar- bitration time periods due to the lack of union access to the fa- cility; and finally, a reminder to the Respondent not to change wages, hours, benefits, and other terms of employment without prior notice to the Union and an opportunity to bargain over any changes. The letter was signed by Milly Silva, the Union’s ex- ecutive vice president (GC Exh. 3). At the hearing, William S. Massey (Massey) testified that he is a labor lawyer and had represented the Union since 2004. He 6 It was alleged in the second amended complaint that Avery Eisen- reich was the Respondent’s owner and supervisor within the meaning of Sec. 2 (11) of the Act (GC Exh. 1(n) par. 3). This was denied in the stated that the letter was prepared by his law firm to remind the Respondent that the Union was still active at the facility and to ensure that the Union be informed and given an opportunity to bargain before any changes in terms and conditions of employ- ment are made. Massey said the letter served to address the lack of access of the Union to the nursing home because of the statewide lockdown. He said that Sherry McGhie served as the union organizer or staff representative at the nursing home at the time (Tr. 22–25; 66–68). A. The Respondent’s April 1 Bonus Memo to all Alaris Staff On April 1, a memo, from Avery Eisenreich on behalf of Ala- ris Health,6 informed all employees in the Alaris Health care sys- tem that the Respondent was taking steps to ensure the safety of the workers and wanted to recognize the hard work of the healthcare workers on the front line of the pandemic (GC Exh. 4). The memo stated that: Accordingly, effective April 2, and thru at least April 30, we will be providing all our staff working in our centers a special COVID19 hourly rate bonus equal to 25% of their current hourly rate. The special hourly bonus will apply to all worked hours (excluding any paid-time-off pay) thru April 30. Massey testified that he was informed after an employee at another Alaris nursing home told a union representative about the memo. Massey thought he heard about the memo from the Union on April 1 “. . . and may have received the screenshot of the notice later that day. Maybe I received it the next day” (Tr. 72). Massey testified that he never received the memo from Ei- senreich and none of union officials were provided with the memo directly from the Respondent (Tr. 27–29, 69, 70). Sherry McGhie (McGhie) testified that she was and is the Un- ion’s administrative organizer and was the shop organizer at the Alaris Health at Boulevard East facility (Tr. 103, 104). She stated that a worker and union delegate, Gwen Russell, at the Alaris Harborview facility, sent a screenshot of the April 1 memo in a text on April 1 to her. McGhie denied that she received a copy of the April 1 memo from any Alaris manager or supervisor (Tr. 105, 106). In response to the memo, Massey sent an email to David Jasin- ski (Jasinski), who was and is representing the Respondent in labor employment matters. The email was dated April 1 and stated that Massey was informed by the Union of the 25 percent wage increase effective tomorrow (April 2) at the six nursing homes and that the Union agreed with the increase. Although the April 1 memo categorized the increase as an hourly rate bo- nus, Massey called it a wage increase in his email to Jasinski. Massey asked that Jasinski confirm this understanding. Massey testified that he was not aware of the cutoff date of April 30 at the time he sent the email to Jasinski (GC Exh. 5; Tr. 76). By letter dated April 2 (GC Exh. 6), Jasinski wrote Massey the fol- lowing: Dear Bill: As you are all too aware, each one of these facilities is in the Respondent’s answer to the complaint but subsequently stipulated by the Respondent as admitted, as noted below. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 epicenter of the Covid-19 Pandemic—the likes of which no one has ever experi- enced. Administration and its staff are dealing with and making critical real-life decisions every minute of every day. They cannot, and will not be distracted because there is too much at risk. The Facilities’ goals are single minded and everyone is focused on it—provide the best health care for our residents and continued safety for them and our staff. Let me be as clear as possible. We will not be deterred by anyone or an- ything. We will do what is necessary to maintain these goals. The temporary increase for our employees is well within our management rights. It was solely to recognize the outstanding efforts of our dedicated staff. During this global emergency, this Administration should not have to use precious time to justify its well-meaning actions and should not be distracted from the day to day challenges this crisis has created. We make absolutely no apologies for our actions, and will continue to do what we believe is right for our residents and our employees. I will be happy to address your concerns. For now, please al- low the Administration to do their critical work. Massey testified that he disagreed with Jasinski’s assertion in the letter that granting the monetary increase was a management right of the employer. Obviously, Massey did not disagree with the increase but did testify that “. . . the wage increases unilater- ally is not law, and was not permitted by the expired CBA, or by the National Labor Relations Act” (Tr. 33). Massey acknowl- edged in testimony that Jasinski’s letter stated that the increase was temporary (Tr. 78). In response to letter, Massey emailed Jasinski on April 2 that he was taken aback by the tone of the letter and to clearly remind Jasinski that the Union is entitled to notice and an opportunity to bargain with the Respondent before any changes, which included any modifications to the already implemented and agreed upon increases (GC Exh. 7; Tr. 34, 35). Massey testified that Jasinski did not respond to his April 2 email (Tr. 37). B. The Respondent’s April 7 Bonus Memo to the Nursing and Respiratory Staff On April 7, Eisenreich distributed a memo to all nursing and respiratory staff and stated that in appreciation for their work at the various nursing homes (which included Alaris Health at Boulevard East), the nursing and respiratory staff will receive a COVID-19 hourly rate bonus equal to 100 percent of their cur- rently hourly rate, effectively immediately and through April 30. The hourly bonus will apply to all worked hours (excluding sick or benefit time) (GC Exh. 8). Massey testified he has seen the April 7 memo after receiving a copy from the Union. He noted that a bargaining unit employee from another nursing facility had received the memo at another Alaris nursing facility and forward a picture of the memo to the Union. Massey denied receiving the memo from Jasinski or that any union officials had received the memo directly from the Re- spondent (Tr. 37–39). McGhie denied receiving this memo (Tr. 106). On the same day, Massey emailed Jasinski about the April 7 memo. He informed Jasinski that he was made aware of the 100 percent wage increase for all nursing employees at the Alaris at Hamilton Park. Massey again referenced the hourly rate bonus in the April 7 memo as a wage increase. Massey believed in his email that the 25 percent wage increase was on top of the already implemented 100 percent wage increase that was previously an- nounced on April 2. Massey again reminded Jasinski of the Re- spondent’s obligation to inform the Union and provide an oppor- tunity to bargain over the changes, including any modifications to the already implemented agreed to increases (GC Exh. 9). Massey followed his April 7 email with another email to Jasinski on April 8, informing Jasinski that he was now informed that the Respondent’s April 7 memo had also applied to the remaining five nursing facilities, including Alaris Health at Boulevard East. Massey testified that the Union had consented to the increase. Massey subsequently understood that the 100 percent was a modification to replace the 25 percent and not a 100 percent in- crease on top of the initial 25 percent increase (GC Exh. 10; Tr. 40, 41, 80–82). There were no replies from Jasinski to Massey’s April 7 or 8 emails. C. The Respondent’s April 29 Revaluation Memo of the Bonus Program In a memo dated on April 29, Eisenreich addressed all the staff at the six nursing facilities. He thanked the dedication and com- mitment of the staff during the COVID19 crisis and the loss suf- fered by many staff members due to the virus (GC Exh. 11). Ei- senreich stressed the need to balance the desire to reward the staff with the need to ensure uninterrupted full salaries and ben- efits to all. To maintain the financial viability of the nursing fa- cilities, Eisenreich referred to his April 7 memo that stated there would be a revaluation of the bonus program by April 30. The April 29 memo made the following modifications: Effective May 1st, the 100% bonus for Nurses, CNA’s and Respiratory Therapists will be reduced to a 25% hourly bonus for hours worked through May 14th, which is consistent with the bonus received by all staff at our Centers. During this pe- riod, we will continuously review our ability to meet all obli- gations and we will update our Team Members prior to May 14th. Massey testified that he learned of the April 29 memo several months after it was sent out by Eisenreich and was fairly certain that the Union never received a copy. He stated that he received a copy from Jasinski in late 2020 (Tr. 44–46). McGhie testified she received the April 29 memo as a screenshot in a text sent by union delegate Russell at the Alaris Harborview facility. McGhie testified that the April 29 memo was not posted at Alaris Health at Boulevard East and she was never provided a copy di- rectly from that facility’s managers (Tr. 107–109). D. The Respondent’s May 13 Memo Revaluation of the Bonus Program On May 13, Eisenreich sent out another memo that stated it was a follow-up to the April 29 memo. The May 13 stated the following: ALARIS HEALTH AT BOULEVARD EAST 11 Our April 29 memo indicated reevaluation of our bonus program on May 14. Starting May 17, the 25% bonus payment for hours worked will be limited to "Direct Nurs- ing Providers" only. This includes all RNs, LPNs, CNA's, and QA CNAs. This 25% bonus for Direct Nursing Pro- viders will continue until May 31, 2020, at which point we are optimistic that the peak of this pandemic will have passed. As of May 17, all other employees will return to their normal hourly rate. The prior bonus program will continue to be in effect until May 17. Massey did not recall when he received a copy of the May 13 memo and believed that the Union did not receive that memo (GC Exh. 12, Tr. 46). McGhie confirmed that the Union did not receive a copy of the April 29 memo or the follow up memo of May 13 from the facility’s managers but testified that a union delegate at another facility screenshot the two memos to her (Tr. 110). E. The Respondent’s May 29 Memo Modifying the Bonuses to the Nursing Staff Eisenreich followed-up his May 13 memo with another memo on May 29. He reminded all staff that the May 13 memo stated there would be further modifications of the bonus by May 31. As such, the May 29 memo stated that the 25-percent bonus to RNs and LPNs will be reduced to 10 percent effective on June 1 through 15. The May 29 memo also stated that the RNs and LPNs would return to their tradition pay rate after June 15 (GC Exh. 14). Massey sent an email to Jasinski on May 15 after the Union had received reports from unit employees that they had lost their 100-percent bonus. Massey testified that the unit em- ployees “. . . at some six Alaris facilities, that they had lost the 100% wage increase” (GC Exh. 13; Tr. 47; 83). His email pro- tested the rescission of the 100-percent wage increase and stated the following: The Union has learned from employees that on or about the beginning of this month, the above 6 Alaris facilities unilater- ally rescinded the 100% wage increases for all nursing employ- ees that were implemented, and subsequently consented to by the Union on April 7 and 8. As you know, there is a union at each of these facilities, and changes to terms and conditions of employment (such as wages) cannot be made unilaterally. Ra- ther, they must be negotiated, after providing the Union with advance notice and a meaningful opportunity to bargain. If Alaris wishes to modify terms and conditions of employ- ment, (including, but not limited to the aforementioned wage increases), it should direct any proposals to Union Vice Presi- dent Leilani Montes and/or to myself. In the meantime, we ex- pect and insist that Alaris restore the recently rescinded in- creases, make employees whole, and refrain from making any unilateral changes, particularly reductions to employees’ pay. Thank you for your attention to this matter. Massey testified that the Union did not received a copy of the memo; did not agreed to the reduction; and, at no time did the Respondent offered to bargain over the reduction or communi- cate any proposals on the wage reduction (Tr. 51 52; 85–87). McGhie believed she received the May 29 memo between June 10-12 in a phone screenshot from a union delegate at another Alaris facility. McGhie never received the May 29 memo di- rectly from any management officials (Tr. 111, 112). Massey sent a second email on June 2 that referenced the LPNs at the 6 Alaris facilities. His June 2 email to Jasinski noted the earlier rescission of the “. . . 25% wage increases for all em- ployees,” but now complained about the LPNs’ 25 percent wage increase that was reduced to 10 percent. Massey stated that the union was willing to bargain over the changes and demand that the employer refrain from making any additional unilateral changes (GC Exh. 15). Massey testified he was mistaken that the May 29 memo (GC Exh. 14) called for the reduction of the CNAs’ wages from 25 percent to 10 percent (similar to the LPN reduction). Instead, the May 29 memo did not reduce the CNAs monetary benefits and remained at 25 percent (Tr. 55). Massey did not receive a reply from Jasinski on his June 2 email. Massey testified that the Re- spondent never communicated any bargaining proposals over the changes in the wage increases to the unit employee (Tr. 55, 56). F. The Respondent’s July 20 Memo Reducing the CNAs’ Monetary Increases On July 20, Eisenreich issued another memo to the Alaris Health staff. He stated that Alaris had re-evaluated the COVID- 19 related bonus given to the CNAs in the May 29 memo and stated that the 25 percent bonus for hours worked reflected in the May 29 memo will now be reduced to $1.50 extra per hour for all hours worked, effective on July 26. The CNAs’ prior 25 per- cent bonus was eliminated (GC Exh. 16). Massey testified that he received a copy of the memo from the Union after an employee at a different facility sent a screenshot of the memo to the Union. He denied receiving the notice from Jasinski or from the employer (Tr. 56, 57). McGhie testified that, again, a union delegate at a different Alaris nursing facility had screenshot the memo to her on about July 23. She denied re- ceived a copy from the administrator or another manager at Ala- ris Health at Boulevard East (Tr. 112, 113). In response to this reduction, Massey emailed Jasinski on July 24 and summarized the Union’s position that the monetary ben- efits given to the unit employees are in fact wage increases and he complained to Jasinski that the wage reductions were done unilaterally and without the approval by the Union. Massey stated in his email that the Union is willing to negotiate over the reductions, but the Respondent must maintain the wage increases as the status quo in the interim. Massey testified that Jasinski did not reply to his email (Tr. 58-60; GC Exh. 17). On November 6, Jasinski wrote to Massey that it was in the best interest of all involved to provide bonuses to the Alaris staff during the pandemic and requested the Union to reconsider the filing of an unfair labor practice charge (presumptively after the bonuses were rescinded by the Respondent) (GC Exh. 20; Tr. 96, 97, 101). G. The Union’s Information Request On about September 4, the Union filed a class action griev- ance on behalf of the unit employees at Alaris (previously known as Palisades) for unpaid medical invoices and the cancellation of their health insurance benefits. Sherry McGhie (McGhie) sent DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 an email on September 4 to Francine Sokolowski, the adminis- trator for the nursing facility, regarding the grievance (GC Exh. 18). On September 8, McGhie sent a second email to Sokolowski, captioned “Information Request,” and attached a copy of a request for information dated September 4 and ad- dressed to Sokolowski. Massey testified that he followed-up on the McGhie September 8 email with his own email to Jasinski on September 23. Massey stated that attached to his email to Jasin- ski was the information request of September 4 from McGhie to Sokolowski (Tr. 61–63; GC Exh. 19). The Union requested the following information on the pending grievance: 1. The files that show names and date of member covered as of March 1, 2020. 2. The summary plan and description for health insurance. 3. The summary benefit description for health insurance. The Union requested that the information be provided by Sep- tember 14. Massey testified that the Union did not receive a re- ply on the information request from Sokolowski and he did not receive a response from Jasinski (Tr. 63, 64). McGhie testified that the Union filed the grievance because unit members had accumulated hospital bills that were not being covered by their health insurance. McGhie said she gave copies of the hospital invoices to Administrator Sokolowski but re- ceived no response from her or any other management official. She stated that her next step was to file the grievance (Tr. 113, 114). Pursuant to the grievance, McGhie testified that she made an information request to Sokolowski to determine why the unit employees were not being reimbursed for their medical bills. The Alaris Health at Boulevard East facility closed operations in early November 2020. However, McGhie maintained that the grievance is still active, and that the Union never received the information requested (Tr. 100, 101, 117, 118). H. The Testimony of Jennifer Puleo Jennifer Puleo (Puleo) testified on behalf of the Respondent. She stated that at the time of this complaint, she was the regional vice president of operations for the Alaris Health system, which included the Alaris at Boulevard East facility. Puleo has been the regional vice president since May 2019 and is responsible for various topics arising with the facilities and provided guidance for the administrators and staff. Puleo described the chaotic sit- uation at the Alaris nursing facilities during the COVID-19 pan- demic in 2020. She testified that that the nursing facilities were faced with changing policies and mandates from the State of New Jersey on the operations of the nursing homes due to the unprecedent state of emergency caused by the pandemic. Puleo also described the suspension of visitations to the nursing homes and the care of nursing residents with dwindling staff resources (Tr. 131–133, 142, 143). With regard to the bonus memos issued by the Respondent, Puleo testified that she participated in the decision-making for giving out bonuses and also involved when the bonuses were re- duced and eventually eliminated. Puleo recalled that another re- gional vice president, the executive vice president, and the owner, Eisenreich, were involved in deciding on giving and re- ducing the bonuses to the staff at Boulevard East and other Alaris facilities. Puleo testified that she made weekly visits to Boulevard East and recalled seeing the six bonus memos posted in various areas, specifically by the timeclock and break room nurses’ station. She believed that the memos were disseminated to the employees at Alaris Boulevard East (Tr. 136, 137, 143). Puleo testified that the bonus memos were also disseminated to the union shop stewards at the Boulevard East facility but is not aware that the memos were discussed with them prior to the is- suance of memos (Tr. 156, 157–160). Puleo maintained that each bonus memo had a start and end date or stated that there would be a further modification of the bonuses. She testified that no employee complained to her when the bonuses were reduced and eliminated because they all knew when the bonuses would end (Tr. 139, 148–150, 160). Puleo stated that she is aware of grievances that may be filed at the Alaris nursing facilities but has not participated in a grievance. She is not aware of any grievances that were filed on the reduc- tion of the bonuses (Tr. 139, 140, 147). I. The Parties’ Stipulation with Regard to Avery Eisenreich In lieu of having Avery Eisenreich testify at the hearing, the parties agreed and stipulated to the following terms (Tr. 125– 127): 1. From about March 1, 2020, through the closing of Alaris Health at Boulevard East in about November of 2020, Avery Eisenreich was the part owner of Alaris Health at Boulevard East and is a supervisor within the meaning of Section 2(11) of the National Labor Relations Act. 2. Avery Eisenreich did not provide a copy of GC Exhibits GC-4, GC-8, GC-11, GC-12, GC-14 or GC-16 to the Union, meaning 1199 SEIU, or to William Massey, Milly Silva, Lei- lani Montes and/or Sherry McGhie. 3. The memos described in GC Exhibits, GC-4, GC-8, GC-11, GC-12, GC-14 and GC-16 were the same memos at Alaris Health at Boulevard East, as well as the five other Alaris facil- ities, in which 1199 represents employees in New Jersey (to wit): Alaris Heath at Castile Hill, Alaris Health at Harborview, Alaris Health at Rochelle Park, Alaris Health at the Atrium, and Alaris Health at Hamilton Park. 4. Avery Eisenreich was part of a team at Alaris Health, which included Jennifer Puleo, Linda Dooley, and Chad Giampolo, that decided on the increases that were contained in GC Exhib- its GC-4, GC-5, GC-8, GC-11 GC-12, GC-14, GC-16, as well as the decreases contained in those same memos. Discussion and Analysis The counsel for the General Counsel contends that the Re- spondent violated section 8(a)(5) and (1) of the Act by unilater- ally reducing, modifying, and eventually rescinding the wage in- creases. The Respondent argues that the monetary increases were bonuses that the Respondent had the contractual right to give and rescind within its discretion. It is clear from the above factual findings that the Union consented to the unilateral mon- etary increases but always reminded Jasinski that further modi- fications required a notice and opportunity to bargain with the Union before changes were made. As a defense, the Respondent argued that during this unprecedented time with the COVID-19 ALARIS HEALTH AT BOULEVARD EAST 13 pandemic, it made critical decisions on nursing home operations, including to give out bonuses to the staff in appreciation of their commitment and dedication in serving the vulnerable residents at the facilities that was permitted under the expired collective- bargaining agreement (Tr. 131–143). a. The Respondent did not violate Section 8(a)(5) and (1) of the Act when it reduced, modified, and rescinded the bonuses Section 8(a)(5) of the Act requires an employer to provide its employees’ representative with notice and an opportunity to bar- gain before instituting changes in any matter that constitutes a mandatory bargaining subject. NLRB v. Katz, 369 U.S. 736 (1962); Toledo Blade Co., 343 NLRB 385 (2004). The duty to bargain in good faith includes a duty to abstain from unilaterally changing terms and conditions of employment without first bar- gaining to impasse with the designated representative regarding the changes. NLRB v. Katz, 369 U.S. 736, 743 (1962). The collective-bargaining agreement between the parties ex- pired on March 31, 2014. After a collective-bargaining agree- ment expires, an employer has a statutory duty to maintain the status quo on mandatory subjects of bargaining until the parties reach a new agreement or a valid impasse in negotiations. See, Triple A Fire Protection, 315 NLRB 409, 414 (1994), enfd. 136 F.3d 727 (11th Cir. 1998), cert. denied 525 U.S. 1067 (1999); Asociacion de Empleados del Estado Livre Asociado de Puerto Rico, 370 NLRB No. 71 (2021). The substantive terms of the expired agreement generally determine the status quo. See, PG Publishing Co., Inc. d/b/a Pittsburgh Post-Gazette, 368 NLRB No. 41, slip op. at 3 (2019); Hinson v. NLRB, 428 F.2d 133, 139 (8th Cir. 1970). The Board may also consider any extracontrac- tual past practices that are “regular and long-standing, rather than random or intermittent.” Sunoco, Inc., 349 NLRB 240, 244 (2007). The Respondent (previously known as Palisades) and the Un- ion enjoyed a collective bargaining agreement from April 1, 2010, to March 31, 2014 (GC Exh. 2). The “wage increase and minimum rate” section of the contract set forth the hourly in- creases to the rates of pay of the unit employees and for the hourly increases. However, nothing in this section prevented the Respondent “. . . from giving merit increases, bonuses, or other similar payments provide it gives prior notice to the Union be- fore implementation” (GC Exh. 2 at pp. 11, 12). Massey testified that he is not aware that the Respondent gave out merit increases, bonuses or other similar payments under this section during the life of the agreement or after the expiration of the contract in 2014 to the present time (Tr. 20, 21). Massey’s testimony is not disputed that the bonuses were unprecedented, but that does not diminish the Respondent’s right under the collective-bargaining agreement to give out bonuses upon notice to the Union without having to bargain. I can well empathize with the chaotic situation in the nursing homes during the COVID-19 pandemic and the constant modifi- cations of operational policies issued by the State of New Jersey on the nursing home industry. Nevertheless, an employer is ob- ligated to provide notice and an opportunity to bargain with the Union on a unilateral change that affects terms and conditions of the unit employees. Changes to payment of wages are manda- tory subjects of bargaining. Strategic Resources, Inc., 364 NLRB 451, 457‒458 (2016). Employers have a duty to bargain with the Union under Section 8(a)(5) of the Act about employ- ees’ wages, hours, and other terms and conditions of employ- ment. These terms and conditions are “mandatory” subjects of bargaining. NLRB v. Borg-Warner Corp., 356 U.S. 342, 349 (1958). Bonuses, as payments to employees, are considered wages and therefore a mandatory subject of bargaining. Kirch- hoff Van-Robb, 365 NLRB No. 97, slip op. at 1 fn. 2 and 8 (2017). Thus, an employer violates its duty to bargain when it makes “a material, substantial, or significant change on a man- datory subject of bargaining without first giving the Union notice and a meaningful opportunity to bargain about the change to agreement or impasse, absent a valid defense.” NLRB v. Katz, above. A bonus is a term and condition of employment over which an employer must bargain when the bonus was paid regu- larly and was tied to employment-related factors. Bob’s Tire Co., 368 NLRB No. 33, slip op. at 1 (2019). As noted, it is well established that an employer and the rep- resentative of its employees have a mandatory duty to bargain with each other in good faith about wages, hours, and other terms and conditions of employment. North American Pipe Corp., 347 NLRB 836, 837 (2006), petition for review denied 546 F.3d 239 (2d Cir. 2008). The Board has held, however, that employers do not have to bargain about gifts that they give to their employees. Id. As the Board has explained, items “given to all employees regardless of their work performance, earnings, seniority, pro- duction, or other employment-related factors” are properly char- acterized as gifts. Benchmark Industries, 270 NLRB 22, 22 (1984). Conversely, items that are “so tied to the remuneration which employees receive for their work that [the items] are in fact a part of the remuneration” are properly characterized as wages and are subject to the mandatory duty to bargain. North American Pipe Corp., 347 NLRB at 837. Consequently, it is critical to this determination as to whether the monetary in- creases were bonuses or wages. If the monetary increases were wage increases, the Respondent would be obligated to bargain with the Union. However, if the monetary increases were bo- nuses, then there is no obligation to bargain since the bonuses were permitted by the collective-bargaining agreement. Massey testified to the following as to his interpretation that the monetary increases were a wage increase: [It’s] pretty clear from the Union's point of view, that this was a wage increase. I guess the employer called it a bonus. We considered that to be self-serving. But what they did was there was a percentage wage increase. If somebody made $10, they were going to $20. If someone made $20, they were going to $40. That's a wage increase. A bonus, on the other hand, is like in the form of a ratification bonus. You will receive $500, or you will receive $100, or you will receive $250. That's a bonus. And a wage increase is, you know, that the wages were increased by either 100%, or 25%, or whatever the percent was. We viewed them as wage in- creases. Q. Okay. So–and we're going to use hypotheticals here. And I'll use round number. If an employee earned $10 an hour as a CNA, this bonus for the regular pay would be DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 essentially their regular pay, $10 an hour, plus the same hours at an additional $10 an hour, correct? A Yes. Q. Okay. And if an employee worked overtime, so they were paid time and a half. And so they earned $15 an hour, when they worked overtime. You with me? A Uh-huh. Q. Okay. So they would receive—for their overtime hours worked, they would receive 100% bonus of the $15 an hour. Is that how this was applied? A. I believe that's how the overtime is applied (Tr. 49, 50).7 It is well established that a bonus or gift consistently bestowed for a period of time is considered a component of wages or a term or condition of employment. Simpson Lee Paper Co., 186 NLRB 781, 783 (1970). In Smi/Divisio of DCX-CHOL Enterprises, Inc., 365 No. 152 (2017), the Board found that the $100 bonus was a form of compensation subject to a mandatory duty to bar- gain, and since the employer did not fulfill its duty to bargain with the Union before implementing the $100 bonus, the em- ployer violated Section 8(a)(5) and (1) of the Act when it unilat- erally implemented the bonus. In Ohio Edison Co., 362 NLRB 777, (2015), the Board held that a bonus paid on the basis of an employee’s performance on the job constitutes part of an em- ployee’s compensation, rather than a gift, requiring an obligation to bargain. In determining whether a bonus constitutes a term and condi- tion of employment over which an employer must bargain, the Board considers both the regularity of the bonus and whether payment of the bonus was tied to employment-related factors. See, e.g., North American Pipe Corp., above; Bob’s Tire Co., 368 NLRB No. 33 (2019). The Board has held, however, that employers do not have to bargain about gifts that they give to their employees. Id. As the Board has explained, items “given to all employees regardless of their work performance, earnings, seniority, production, or other employment-related factors” are properly characterized as gifts. In applying the Board’s guidance, I find that the monetary in- creases were gifts and not wage increases. The bonuses were for a specific period of time and not conditioned upon employment- related factors. If indeed this was a wage increase as contended by the General Counsel and the Union, the so-called wage in- creases without benefit of robust negotiations between the par- ties, would have resulted in a significant and substantial windfall to the unit employees. As Massey testified, an employee receiv- ing a 100 percent increase in a $10-per hour situation will now receive $20 dollars per hour. It is difficult to believe the Union seriously thought there was an increase of 100 percent in hourly wages and that the increase was not in fact a gift in the form of a bonus. Here, taking the monetary formula used by the counsel 7 Contrary to the position of the Union, a bonus does not necessarily need to be a specific dollar amount and a percentage of the hours worked may equally be considered a bonus and not a wage increase. Wage in- creases in collective-bargaining agreements can also be bargained for specific dollar amounts and not with percentages (see,e.g., Wilkes-Barre for the General Counsel, a unit employee at Alaris who was earn- ing $50,000 and applying the 100-percent increase, will now see an annual earned income of $100,000 for the duration of that worker’s employment (except for the fact that the facility ceased operations).8 Upon my review of the memos, I find that each memo stated that the monetary increases were called “COVID-19 hourly rate bonus” and each reduction was prefaced as “bonus reductions.” Each memo stated that the monetary increases were bonuses and given during the COVID-19 crisis and pandemic. Each bonus was specific as to the amount, eligibility, and the temporary na- ture of the bonus. The bonus was for 30 days or had a specific start date and end date. None of the monetary increases were tied to performance, seniority, production, attendance or depend- ent on the gross profits of the facility. Each bonus memo had a provision which stated the parties would revisit the bonus and respond based on the circumstances with the COVID-19 pan- demic. Prior to the implementation and expiration of the bonus, the Respondent’s facility distributed follow-up memos for the succeeding designated time (See, also, R. Br. at 6). A review of the series of memos issued by the Respondent substantiates the arguments of Respondent’s counsel, The memo dated April 1 and effective April 2, specifically has an end date of at least April 30. None of the Respondent’s staff was excluded: “All of Respondent’s staff working in all Alaris centers, received a special COVID19 hourly rate bonus equal to 25% of their current hourly rate.” The bonuses were tied to the COVID-19 pandemic situation and not employment fac- tors. The hourly bonuses were not dependent on job perfor- mance and applied to all worked hours thru April 30 (GC Exh. 4). The memo dated April 7 gave all nursing and respiratory staff COVID19 hourly rate bonus equal to 100% of their currently hourly rate, effectively immediately and through April 30. Again, the bonuses had an end date and were not based upon performance or tied to any seniority, earnings or production of the workers. The hourly bonus applied to all worked hours (GC Exh. 8). The April 29 memo and made effective on May 1, gave a 100 percent bonus to the nurses, CNA’s and respiratory therapists on April 7 and was reduced to a 25 percent hourly bonus for hours worked through May 14, making the reduction consistent with the bonus received by all staff. Again, the bonus reduction was not based upon performance factors and applied equally to all job categories. The memo further provided there would be updates prior to May 14 for updates on the bonuses. The May 13 memo was a follow-up to the April 29 memo and stated there would be a reevaluation of the bonus payments. The memo stated that starting on May 17, the 25 percent bonus payment for hours worked will be limited to "Direct Behavioral Hospital Co. LLC, 583 NLRB 1, 19 (2019)(discussing wage increase proposals going up $1.77 per hour). 8 It is noted that the facility ceased operations about November 14, 2020, the date when the backpay period ended as contended by the Gen- eral Counsel (GC Exh. 21). ALARIS HEALTH AT BOULEVARD EAST 15 Nursing Providers" only, which included all RNs, LPNs, CNA's, and QA CNAs. The 25 percent bonus for Direct Nursing Providers will continue until May 31, 2020. All other employees were informed that their normal hourly rate will resume as of May 17 (GC Exh. 12). Again, the May 13 memo provided specific start and end dates for the bo- nuses and applied equally to all job categories without re- gard to performance, seniority or production of the em- ployee. The May 29 memo referenced the May 13 memo and stated there would be further modifications of the bonus payment by May 31. As such, the May 29 memo stated that the 25 percent bonus to RNs and LPNs will be reduced to 10 percent effective on June 1 through June 15. The May 29 memo also stated that the RNs and LPNs would return to their tradition pay rate after June 15 (GC Exh. 14). This bonus to the RNs and LPNs had both a start date and an end date. Finally, the Respondent’s July 20 memo informed the CNAs that the 25 percent bonus for hours worked reflected in the May 29 memo will now be reduced to $1.50 extra per hour for all hours worked, effective on July 26 (GC Exh. 16). Here, the record shows that the Respondent paid its employees a cash bonus based on a percentage of their hour worked from April 1 to July 26. The memos were silent as to whether the bonus was tied in any way to employment-related factors. In- deed, the memos specifically mentioned that the bonuses were provided to all staff and given for their dedication and commit- ment during the COVID-19 pandemic. Upon the lessening of the crisis in the nursing facilities, the Respondent felt that the bonuses were no longer needed. In the absence of additional and more specific evidence that the bonuses were tied to any employ- ment-related factors, there is no basis to find that these payments were anything more than gifts over which the Respondent was not required to bargain. See Harvstone Mfg. Corp., 272 NLRB 939, 939 fn. 1 (1984) (employer did not violate the Act by dis- continuing Christmas bonus given for 10 years, where bonuses were in the nature of gifts rather than terms and conditions of employment). In that case, the judge cited in support Waxie San- itary Supply, 337 NLRB 303 (2001), and Sykel Enterprises, 324 NLRB 1123 (1997). The Board found that the judge’s reliance on these cases is misplaced, as both cases included evidence es- tablishing that the holiday bonus at issue was clearly a term and condition of employment. In Waxie Sanitary Supply, the amount of each employee’s bonus was a specified percentage of the em- ployee’s annual salary, and that percentage depended on the em- ployer’s gross profits for the year. 337 NLRB at 304. In Sykel Enterprises, the employer considered the employee’s attendance and performance in determining the bonus amount. 324 NLRB at 1124. Here, as mentioned above, the only consideration for the bonuses was the COVID-19 pandemic on the staff and not tied to any employment-related factor. In Dura-Line Corp., 366 NLRB No. 126 (2018), the complaint alleged that the Respondent unilaterally reduced the card amount from $25 to $16 in violation of Section 8(a)(5) and (1) of the Act. The judge agreed, finding that the Respondent had established a past practice of providing $25 cards and was obligated to bargain over the change to the $16 cards. The Board disagree and found that the extra $9 value of the $25 gift cards constituted gifts not subject to mandatory bargaining. The Board held that items given to all employees on an equal basis without regard for indi- vidual work performance, earnings, seniority, production, or other such factors, as here, are gifts and are not mandatory bar- gaining subjects. In Bob’s Tire Co., 368 NLRB No. 33 (2019), the Board re- versed the judge and found that the employer did not violate the Act when it ended the annual Christmas bonus after several years without notifying the Union. The Board held that in determining whether a bonus constitutes a term and condition of employment over which an employer must bargain, “. . . the Board considers both the regularity of the bonus and whether payment of the bo- nus was tied to employment—related factors.” Here, the bonuses given by the Respondent was not tied to any employment-related factors. The bonuses did not account for the facility achieving stellar production or profits. They were not tied to job perfor- mance, attendance or seniority of the worker. The bonuses were implemented to show appreciation to the staff when the COVID- 19 pandemic started in March 2020 and the bonuses were ended when the pandemic lessen in summer 2020. As such, I find that the Respondent had no obligation to nego- tiate over the bonuses since they were not wage increases requir- ing a requirement to bargain with the Union. b. The Respondent provided prior notice before the implemen- tation and reduction/recission of the bonuses The remaining issue is whether the Respondent provided prior notice before the implementation and reduction/recission of the bonuses. As argued by the Respondent: “That subject (bonuses) was negotiated and the right was given to the Employer in Sec- tion 10 Paragraph B of the CBA. The CBA merely required no- tice—nothing more” (R. Br. at 6). The Respondent maintains that the Union delegates at the Alaris facilities were provided with copies of the memos as notice to the Union of the bonuses pursuant to the expired contract (Tr. 156–160). As noted above, the expired collective-bargaining agreement states in section 10, para. (B) that, “wage increase and minimum rate” section of the contract set forth the hourly increases to the rates of pay of the unit employ- ees and the hourly increases. However, nothing in this section prevented the Respondent “…from giving merit increases, bo- nuses, or other similar payments provide it gives prior notice to the Union before implementation” (GC Exh. 2 at pp. 11, 12). Here, by the terms of the collective-bargaining agreement, the parties negotiated and agreed that the Respondent had the right to implement bonuses to the employees. The only obligation was to provide notice. I find that the Respondent was not required to provide written notice or to contact a designated and specific rep- resentative at the Union. I also find that this section of the agree- ment did not designate an address for service to the Union or the method of service of the notice. As such, so long as conveying the notice is reasonable, there is no requirement that the notice must be conveyed directly to McGhie, Montes, or Massey and that there is no requirement as to how the notice is to be con- veyed to the Union. McGhie testified that she was the administrator and organizer DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 for the Union at the Alaris Boulevard East Hamilton Park, Har- borview, Rochelle Park, and Castle Hill during the COVID-19 spring 2020. McGhie reported directly to Leilani Montes, her supervisor and vice-president at the Union (Tr. 104). I find the testimony of McGhie to be critical in determining whether notice was given to the Union. To be sure, it is not dis- puted that the Union through McGhie did not have access to the facility due to the state-wide “stay at home” policy in New Jersey and the prohibition of visitors at the State’s nursing homes. As such, McGhie testified that she was dependent on the union del- egates working at the Alaris Boulevard East facility and other Alaris-owned facilities for information (Tr. 118, 119). At the time, the union delegates at Alaris Boulevard East were Rosa Azias and Vicky Nieves. On April 1, 2020, Alaris implemented a limited duration bo- nus for unit employees. McGhie testified that she received the April 1, 2020 memo (GC Exh. 4) on the same date from a unit employee, Gwen Russell, who worked at the Alaris Harborview and is a union delegate (Tr. 111). McGhie testified she received a picture of the memo on her cell phone sent by Russell.8 McGhie forwarded the screenshot of the memo to her supervisor, Leilani Montes, who was the union vice-president at the time (Tr 105). McGhie testified that she did not receive the April 7 memo (GC Exh. 8). However, McGhie saw and received the April 29 memo (GC Exh. 11), which was the follow-up to the April 7 memo. McGhie stated that she received a screenshot of the April 29 memo from Russell and again forward the memo to her su- pervisor Montes (Tr. 106, 107). McGhie further testified she re- ceived a copy of the May 13 memo from Russell, again via a screenshot on her phone and forwarded a text with a picture of the memo to Montes (Tr. 110). On about the same time, McGhie also received the May 29 memo from union delegate Mary Moise at the Rochelle Park facility and again forward the memo to Montes (Tr. 111). McGhie also received the final July 20 memo from Moise, approximately 2 or 3 days after the memo was issued (Tr. 112). While McGhie was not sure, she did testify of having received at least one, possibly two, memos from Azias at the Alaris Boule- vard East facility. The second delegate at Boulevard East, Nieves, was unavailable due to contracting COVID-19 for ap- proximately 5 weeks (Tr. 109, 113). However, McGhie did re- ceive the same memos from delegates at other facilities. McGhie admitted that she had received the April 1 notice from Russell and forwarded the memo immediately to Montes; that she re- ceived the April 29 memo from Russell on April 29 and for- warded the memo to Montes; that she received the May 13 memo and sent it over to Montes on the same day; and received the May 29 memo about June 10 and the July 20 memo from Moise and forwarded that memo to Montes within 3 days (Tr. 122–124, 112). Upon review, of the 6 memos that were issued by the Re- spondent regarding the bonuses, McGhie received 5 of the memos from delegates Azias, Russell, or Moise. Receipt of the 8 It has not been disputed that the memos received from Russell and other delegates at the other Alaris facilities were different from the memos issued at the Boulevard East facility. Indeed, the parties memos by McGhie was immediate, almost always the same day or shortly thereafter the notice was posted. I find that Puleo cred- ibly testified that the memos were posted at the facilities and that the Union delegates had received the memos (Tr. 156–160). I credit her testimony simply because it cannot be disputed that either the memos were posted by the Respondent at all the facil- ities, including Boulevard East, or that the memos were distrib- uted to the union delegates since it would behoove me to ques- tion how else would the union delegates received the actual memos that they texted to McGhie? The one memo that McGhie did not receive was the April 7 memo (GC Exh. 8). However, that deficiency was corrected when McGhie received the follow-up memo on April 29 that de- scribed in detail the April 7 memo (GC Exh. 11). I would also note as significant that the April 7 memo that McGhie said she did not receive only pertained to the nursing and respiratory ther- apy staff, two job categories that are not part of the represented unit employees (GC Exh. 11). McGhie and the Union would not routinely receive notice regarding this group of employees. As such, the Union, through the delegates and subsequently through McGhie and Montes, received notice of the bonuses and the sub- sequent modifications and recission consistent with section 10 (para. B) of the collective-bargaining agreement. Accordingly, I find that the Respondent did not unilaterally rescinded, reduced, and discontinued the alleged wage increases in April 2020 in violation of Section (a)(5) and (1) of the Act. c. The Respondent failed to provide the information requested in violation of Section 8(a)(5) and (1) of the Act The General Counsel also alleges that since about September 4, 2020, the respondent has failed to provide certain information requested by the Union relating to a grievance it filed over the nonpayment of medical bills of its unit employees. The Re- spondent generally denied this allegation but offered no witness testimony or written evidence contrary to the charge alleged by the General Counsel. An employer has a duty to furnish relevant information when requested by a union under Section 8(a)(5) and (1) of the Act, and this encompasses information necessary for the performance of its duties. See NLRB v. Truitt Mfg. Co., 351 U.S. 149, 156 (1956). An employer is obligated to provide a union with re- quested information that is “potentially relevant and would be of use to the union in fulfilling its responsibilities as the employees’ bargaining representative.” E.I. Du Pont, 366 NLRB No. 178, slip op. at 4 (citing NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967), and Postal Service, 332 NLRB 635, 635 (2000)). In evaluating relevance, the Board uses a “liberal, dis- covery-type standard” that requires only that the requested infor- mation have “some bearing upon” the issue between the parties and be “of probable use to the labor organization in carrying out its statutory responsibilities.” Id. (quoting Public Service Co. of New Mexico, 360 NLRB 573, 574 (2014), and Postal Service, 332 NLRB at 636). Information concerning terms and conditions of employment stipulated that the memos were identical in all six Alaris facilities (Tr. 125–127). ALARIS HEALTH AT BOULEVARD EAST 17 of employees represented by a union is generally presumed rel- evant to the Union in its role as a bargaining representative. Thus, information requested will be considered relevant when it would assist the Union in evaluating the merits of a grievance and the propriety of pursuing that grievance to arbitration. Acme Industrial Co., 385 U.S. 432, 437–438 (1967) (employer’s duty to furnish requested information constitutes obligation standing “in aid of the arbitral process,” in that it permits union to evaluate grievances and sift out unmeritorious claims). The Board, in de- termining that information is producible, does not pass on the merits of a grievance underlying an information request. See Id. Where the information requested is not presumptively relevant, “it is the union’s burden to demonstrate relevance.” Postal Ser- vice, 332 NLRB 635 at 636 (2000). The Union’s burden to demonstrate relevance is not heavy, but it does require “demon- strating a reasonable belief supported by objective evidence that the requested information is relevant, unless the relevance of the information should have been apparent to the Respondent under the circumstances.” Id.; see also A-1 Door & Building Solutions, 356 NLRB 499, 500 (2011). As stated above, on about September 4, the Union filed a class action grievance on behalf of the unit employees at Alaris for unpaid medical invoices and the cancellation of their health in- surance benefits. The email referring to the grievance was sent by McGhie, a union organizer, to Sokolowski, the administrator at the Alaris nursing facility (GC Exh. 18). The Union requested the following information on the pending grievance: 1. The files that show names and date of member covered as of March 1, 2020. 2. The summary plan and description for health insurance. 3. The summary benefit description for health insurance. Union counsel, Massey, followed up on McGhie’s September 4 email with his own email to Jasinski on September 23. At- tached to Massey’s email to Jasinski was the information request from McGhie to Sokolowski (Tr. 61-63; GC Exh. 19). McGhie testified that the Union filed the grievance because unit members had been accumulating hospital bills that were not being paid by their health insurance. McGhie said she gave copies of the hos- pital invoices to administrator Sokolowski but received no re- sponse from her or any other management official (Tr. 113, 114). Pursuant to the grievance, McGhie testified that she made an in- formation request to Sokolowski. I find that the information requested pertaining to the unit em- ployees’ health insurance benefits as presumptively relevant and may be necessary for the Union to advocate its represented mem- bers at the pending grievance. See NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967). The requested information was presumptively relevant to the filing of the grievance so that the Union can determine how many unit employees were covered and to ascertain whether there were changes in the health insur- ance plan that now no longer allowed for coverage and reim- bursement for certain medical expenses. To be sure, assuming the information requested is not pre- sumptively relevant, this is not the situation where the Union failed in its burden to demonstrate the relevance of the requested information. The Board has long held that “generalized, conclu- sionary explanation is insufficient to trigger an obligation to supply information.” Island Creek Coal, 292 NLRB 480 at 490 fn. 19; Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1099 (1st Cir. 1981); FCA US LLC, 371 NLRB No. 32 (2019). How- ever, here, I credit McGhie’s testimony that the information was needed by the Union to determine the reasons why the unit em- ployees were not being reimbursed for their medical bills. This information would, of course, assist the Union in the preparation of the grievance proceeding. The Union requested that the Re- spondent provide the information by September 14. I find Mas- sey credibly testified that the Union did not receive a reply on the information request from Sokolowski and he did not receive a response from Jasinski (Tr. 63, 64). Although Alaris Health at Boulevard East facility closed operations in early November 2020, it is undisputed from McGhie’s testimony that the griev- ance is still active and that the Union never received the infor- mation requested (Tr. 117). Accordingly, I find that the Respondent violated Section 8(a)(5) and (1) of the Act when it failed and refused to provide the Union with the information requested by September 14, 2020. CONCLUSIONS OF LAW 1. At all material times, the Respondent Alaris Heath at Boulevard East is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. 1199 SEIU United Healthcare Workers East (the Union) is a labor organization within the meaning of Section 2(5) of the Act 3. At all material times, the Union has been the designated exclusive collective-bargaining representative of Respondent’s employees, in the following appropriate unit: All CNAs, dietary, housekeeping, recreational aides, cooks, and all other employees excluding professional employees, registered nurses, LPNs, confidential employees, office clerical employees, supervisors, watchmen and guards. 4. The Respondent violated Section 8(a)(5) and (1) of the Act when it failed and refused to provide the Union with the infor- mation requested by September 14, 2020. 5. The unfair labor practices described above affect com- merce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent did not violate Section 8(a)(5) and (1) of the Act when it is alleged that the Respondent unilaterally im- plemented and subsequently reduced and eliminated the alleged wage increases without notice and an opportunity to bargain with the Union. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. Specifically, I recommend that the Respondent having unlawfully failed and refused to provide the information to the Union that is relevant and necessary to the performance of its duties as the exclusive collective-bargaining representative and/or failed to inform the Union that certain in- formation requested did not exist, shall be ordered to supply the requested information to the Union, or make such representation to the Union that the information requested does not exist. In DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 addition, the Respondent shall post an appropriate informational notice, as described in the attached appendix. On these findings of facts and conclusions of law and on the en- tire record, I issue the following recommended9 ORDER The Respondent, Alaris Health Boulevard East, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing to provide information to the Union that is relevant and necessary to the performance of its duties as the exclusive collective-bargaining representative of its employees in the fol- lowing appropriate unit: All CNAs, dietary, housekeeping, recreational aides, cooks, and all other employees excluding professional employees, registered nurses, LPNs, confidential employees, office clerical employees, supervisors, watchmen and guards. (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 effectu- ate the policies of the Act. (a) Furnish to the Union, in a timely and complete manner, the following information, or, to the extent such information does not exist, so inform the Union: 1. The files that show names and date of member covered as of March 1, 2020. 2. The summary plan and description for health insurance. 3. The summary benefit description for health insurance. (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. (c) Within 14 days after service by the Region, post at the existing Alaris Health facility at Boulevard East located in Gut- tenberg, New Jersey, copies of the attached notice marked “Ap- pendix.”1710 Copies of the notice, on forms provided by the Re- gional Director for Region 22, after being signed by the Re- spondent’s authorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its em- ployees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pen- dency of these proceedings, the Respondent had 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 9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions and recommended Or- der shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. employed by the Respondent at any time since September 14, 2020. (d) Within 21 days after service by the Region, file with the Regional Director for Region 22, a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent have taken to comply. Dated, Washington, D.C. January 26, 2022 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 be- half Act together with other employees for your benefits and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT fail to provide information to the Union that is relevant and necessary to its performance of its duties as your exclusive collective-bargaining representative. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL furnish to the Union, in a timely and complete man- ner, the following information: 1. The files that show names and date of member covered as of March 1, 2020. 2. The summary plan and description for health insurance. 3. The summary benefit description for health insurance. To the extent such information does not exist, WE WILL timely inform the Union of that fact. ALARIS HEALTH AT BOULEVARD EAST The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/22-CA-268083 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. 10 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ALARIS HEALTH AT BOULEVARD EAST 19