Metro Man IV d/b/a Fountain Bleu Health and Rehabilitation Center, Inc.

372 NLRB No. 37 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. Metro Man IV, LLC d/b/a Fountain Bleu Health and Rehabilitation Center, Inc. and SEIU Healthcare Michigan. Case 07–CA–264407 December 28, 2022 DECISION AND ORDER BY MEMBERS KAPLAN, WILCOX, AND PROUTY On August 31, 2021, Administrative Law Judge Ira Sandron issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel and the Charging Party filed answering briefs, and the Respondent filed reply briefs. The General Counsel filed exceptions and a supporting brief, and the Charging Party filed cross-exceptions and a supporting brief. The Respondent filed an answering brief to the General Counsel’s exceptions and Charging Party’s cross-exceptions, and the Charging Party filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 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,1 findings,2 and conclusions3 1 Some of the Respondent’s exceptions allege that the judge’s con- duct of the trial, including various procedural rulings, constituted an abuse of discretion and demonstrated bias or prejudice. On careful examination of the judge’s decision and the entire record, we are satis- fied that the Respondent’s contentions are without merit. Additionally, the Respondent does not state, either in its exceptions or supporting brief, any grounds for overturning the judge’s purportedly erroneous procedural rulings, beyond a bare claim that the rulings prejudiced its ability to build a record. Therefore, we find in accordance with Sec. 102.46(a)(1)(i) and (ii) of the Board’s Rules and Regulations that these exceptions should be disregarded. See, e.g., Security Walls, LLC, 371 NLRB No. 74, slip op. at 3, fn. 15 (2022); Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006). In any event, we agree with and affirm the challenged rulings on their merits. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. We specifically affirm the judge’s credibility resolutions with re- spect to testimony bearing on the Respondent’s claim that its licensed professional nurse (LPN) employees are statutory supervisors, and we affirm the judge’s conclusion that the Respondent has not carried its burden to establish that the LPNs have any of the primary indicia of supervisory authority enumerated in Sec. 2(11) of the Act. Because the Respondent did not establish the existence of any of the statutory indi- cia, the judge did not err by declining to consider secondary indicia only to the extent consistent with this Decision and Or- der.4 The judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally increasing unit employees’ wages on April 8, 2020, utilizing nonunit employees to perform bargaining unit work between April 9 and November 2, 2020, and reducing unit em- ployees’ wages on June 16, 2020. As explained below, we find that the Respondent’s initial decisions to increase employee wages and hire nonunit employees to perform unit work were not unlawful because, at the time that the Respondent made these changes, conditions created by the COVID-19 pandemic presented an extraordinary and unforeseen imminent threat to human life that required the Respondent to take immediate action. However, we find that once the Respondent had decided upon and im- plemented measures to address the emergency, it was obliged to promptly notify the Union of the decisions it had taken and to offer to bargain about those decisions and their effects. Accordingly, we affirm the judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) in relation to the pay increase and utilization of nonunit employees to perform unit work insofar as the Respondent failed to meet this postimplementation obli- gation. We also affirm the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unilater- ally reducing employee wages on June 16, 2020, and we shall amend the judge’s recommended remedy to order the Board’s ordinary rescission and make-whole reme- dies for this unlawful unilateral change. I. BACKGROUND In October 2018, the Respondent purchased a 108-bed nursing home in Livonia, Michigan, where it voluntarily recognized SEIU Healthcare Michigan as the collective- bargaining representative of two bargaining units consist- relied upon by the Respondent. See, e.g., Golden Crest Healthcare Center, 348 NLRB 727, 730 fn. 10 (2006) (“It is well established that where, as here, putative supervisors are not shown to possess any of the primary indicia of supervisory status enumerated in Sec. 2(11), second- ary indicia are insufficient to establish supervisory status.”). 3 In affirming the judge’s dismissal of the General Counsel’s allega- tion that the Respondent violated Sec. 8(a)(1) by threatening an em- ployee with unspecified reprisals for participating in the hearing as a witness for the General Counsel, we do not rely on the judge’s discus- sion of an employer’s duty to pay the General Counsel’s witnesses, citing General Die Casters, Inc., 358 NLRB 742 (2012), because that decision was invalidated by the Supreme Court in NLRB v. Noel Can- ning, 573 U.S. 513 (2014). No issue concerning the Respondent’s responsibility to pay the witness is before the Board. 4 We have amended the judge’s conclusions of law and recom- mended remedy consistent with our findings herein. We shall modify the judge’s recommended Order to conform to our findings and to the Board’s standard remedial language, and we shall substitute a new notice to conform to the Order as modified. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing of (1) licensed practical nurses (LPNs) and (2) certi- fied nursing assistants (CNAs) and other support staff.5 The parties were bargaining for initial contracts when the COVID-19 pandemic reached the Detroit area early in 2020.6 At the end of March, when the first residents in the Respondent’s facility contracted COVID-19, approxi- mately 60 to 75 percent of the Respondent’s staff, includ- ing LPNs and CNAs, stopped reporting to work. With as many as three quarters of its skilled nursing staff miss- ing, the Respondent struggled to provide necessary care to COVID-19 positive patients and other vulnerable nursing home residents, including by utilizing managers and non-nursing staff. Administrator Laura Cervi testi- fied “[s]ome of us, management, were sleeping in the building 24/7. We were sleeping on the floor here be- cause we had no staff. The agencies wouldn’t even come into our building to help . . . . Every day we were losing residents and no one came to help.”7 Zanee Drayton, a human resources employee, testified “typically I don’t work around the clock, however, during those times it was around the clock. Everyone was either calling look- ing for staff or we just . . . helped out in the building passing waters, getting call lights out. Just trying to be a support for—for the staff that did come.” The Respond- ent’s director of nursing (DON) contracted COVID-19 at the beginning of the pandemic, and the Respondent ap- pointed Maria McFaddin—who had previously filled a different administrative position—as interim DON. McFaddin testified “we were working 36, 46-hour days nonstop and dealing with dead bodies every day.” McFaddin further testified that between 20 and 35 resi- dents died during the approximately 11 weeks that COVID-19 was in the facility. By the first week in April, the Respondent’s Chief Op- erating Officer Charles Dunn determined that a $2-per hour facility wide pay raise was necessary to address the severe staff shortage. Dunn announced the pay raise at a 5 Because, as noted above, we have found that the Respondent did not carry its burden to establish that its LPNs are statutory supervisors, we find it unnecessary to reach the question of whether its voluntary recognition of the Union as representative of its LPN employees in a unit expressly excluding statutory supervisors precludes its present claim that they are statutory supervisors as a defense to the current unfair labor practice allegations. Cf., e.g., E.G. & H. Inc. v. NLRB, 949 F.2d 276, 279 (9th Cir. 1991) (“[I]t would be . . . destructive of stable bargaining relationships to permit an employer, after voluntarily agree- ing to bargain with a particular unit, to repudiate an agreement on the ground that the unit was not appropriate.”), enfg. Union Plaza Hotel & Casino, 296 NLRB 918 (1989). 6 Dates below are in 2020 unless otherwise indicated. 7 Cervi further testified that the difficulty of securing mortuary ser- vices made it extremely difficult to preserve the dignity of deceased residents. sparsely attended staff meeting, where he told employees that the raise would be in effect as long as COVID-19 patients were in the building. The Respondent also post- ed a notice at the time clock stating that the raise would go into effect on April 8 and would remain in effect until further notice. Additionally, beginning on April 9, the Respondent took advantage of a federal emergency waiver of licensing requirements for nursing assistants to hire employees it identified as “COVID Non-Certified CNAs” to perform nursing assistant work normally per- formed by unit CNAs. The Respondent employed a total of 28 non-certified aides between April 9 and November 2, when it discharged the last employee in this classifica- tion.8 Most of the Respondent’s LPNs and CNAs re- turned to work by the end of May. In the meantime, on March 29 and April 6, the Union had emailed detailed bargaining proposals for a COVID- 19 Memorandum of Understanding to the Respondent’s bargaining attorney. The Union’s proposals addressed, inter alia: hazard and overtime pay; communication about policy changes; COVID-19 exposure status, test- ing, and treatment; pandemic-related leave (including for childcare); and provision of personal protective equip- ment. The Respondent did not reply to these proposals. The parties’ first contract bargaining session during the pandemic took place on June 10. At that session, the Union again presented proposals addressing, inter alia, pandemic pay and staffing levels, but the Respondent did not tell the Union that it had already implemented a pan- demic pay increase and begun hiring noncertified aides to perform CNA work. June 11 was the last day that any facility residents tested positive for COVID-19. The Respondent reduced all employees’ pay by $2 per hour on June 16. The Respondent never directly notified the Union of the April 8 pay raise, its ongoing use of non- certified aides to perform unit CNA work, or the June 16 pay reduction. Rather, the Union first learned of all three changes during a bargaining session on August 4, when unit employees mentioned the pay changes and the Un- ion noticed “COVID Non-Certified CNAs” listed on an employee roster. When the Union asked about these changes, the Respondent’s bargaining attorney initially 8 The Respondent has argued that its utilization of “COVID Non- Certified CNAs” was consistent with a past practice of hiring uncerti- fied individuals into CNA positions contingent upon their completion of final certification requirements within a specified period of time. We reject this argument because the Respondent’s classification of the employees at issue by a new, non-unit designation of “COVID Non- Certified CNAs” establishes that it administratively distinguished them from any such previous conditionally hired CNAs, all of the “COVID Non-Certified CNAs” were ultimately discharged rather than graduated into regular CNA positions, and the record does not otherwise establish that the two groups of employees were relevantly the same. METRO MAN IV, LLC D/B/A FOUNTAIN BLEU HEALTH 3 took the position that the Respondent was not required to bargain about them. The parties continued to bargain after August 4 about issues including pandemic pay and the Respondent’s use of noncertified aides, but they had not agreed upon a contract for either unit as of the May- June 2021 hearing in this matter. II. DISCUSSION A. The April 8 Pay Increase and Initial Utilization of COVID Non-Certified CNAs During negotiations for a collective-bargaining agree- ment, Section 8(a)(5) of the Act generally prohibits an employer from making changes to terms and conditions of employment that are mandatory subjects of bargaining unless the parties first reach overall impasse.9 Section 8(d) mandates bargaining over “wages,” as well as “other terms and conditions of employment,” which the Board and the courts have long held encompass allocation of unit work to nonunit employees.10 Accordingly, during bargaining and absent overall impasse, an employer is generally obliged to refrain from making unilateral changes to employees’ wages and from unilaterally as- signing unit work to nonunit employees.11 The Board has recognized a narrow exception to this general rule: when “economic exigencies compel prompt action.”12 The Board has cautioned, though, that “[t]he burden for meeting this exception is heavy: it applies only to ‘ex- traordinary events which are an unforeseen occurrence, having a major economic effect requiring the company to take immediate action.’”13 Applying these principles here, we conclude that the Respondent’s initial actions were not unlawful. During the first 2 weeks of April, the staff shortage in the Re- spondent’s facility created an extraordinary and unfore- seen imminent threat to resident lives that compelled immediate action. The Respondent’s decision to increase 9 See, e.g., NLRB v. Katz, 369 U.S. 736, 742–743 (1962); Bottom Line Enterprises, 302 NLRB 373, 374 (1991), enfd. mem. sub nom. Master Window Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994). 10 See, e.g., Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 215 (1964); Road Sprinkler Fitters Local 669 (A-1 Fire Protec- tion, Inc.) v. NLRB, 676 F.2d 826, 831 (D.C. Cir. 1982), remanding 250 NLRB 217 (1980); NLRB v. Rockwell-Standard Corp., 410 F.2d 953, 957 (6th Cir. 1969), enfg. 166 NLRB 124 (1967); Port Printing AD & Specialties, 351 NLRB 1269, 1270 (2007), enfd. 589 F.3d 812 (5th Cir. 2009). 11 See, e.g., Katz, 369 U.S. at 744–745 (wage increases); Kankakee County Training Center for the Disabled, Inc., 366 NLRB No. 181, slip op. at 2–3 (2018) (subcontracting). 12 Bottom Line Enterprises, 302 NLRB at 374 (citing Winn-Dixie Stores, Inc., 243 NLRB 972, 974 & fn. 9 (1979); Katz, 369 U.S. at 748). 13 Kankakee County, above, 366 NLRB No. 181, slip op. at 2 (quot- ing RBE Electronics of S.D., 320 NLRB 80, 81 (1995)) (internal quota- tion and modification omitted). employee wages on April 8 directly addressed this emer- gency by incentivizing the continued attendance or return to work of its skilled nursing staff. The decision to hire noncertified aides similarly directly responded to the staffing emergency, as underscored by the federal emer- gency waiver specifically designed to make this staffing option available to similarly situated employers. The Board has held that economic exigencies excused preimplementation bargaining when an employer unilat- erally laid off unit employees in response to a hurricane evacuation order.14 And it has held that an employer lawfully unilaterally subcontracted unit work in response to a computer system failure.15 The rule that encom- passes those unilateral actions in response to economic threats must necessarily also permit unilateral action that, as here, directly responds to an imminent threat to human life. We accordingly conclude that the Respondent’s failure to notify the Union and offer to bargain prior to implementing its initial decisions to raise employee pay and hire noncertified aides was not unlawful. B. The Respondent’s Postimplementation Bargaining Obligations The Board has consistently emphasized, however, that exigent circumstances create, at most, a very narrow ex- ception to the general statutory bargaining obligation. Thus, “absent a dire financial emergency, economic events such as loss of significant accounts or contracts, operation at a competitive disadvantage, or supply short- ages do not justify unilateral action.”16 Even where the Board has excused an employer’s initial failure to bar- gain in response to exigencies, the Board has found that the employer must, after the need for immediate decision making has passed, provide notice and an opportunity to bargain over the effects of such unilateral changes (where effects bargaining is required) as well as over any subsequent related unilateral changes. While exigent circumstances may briefly excuse an employer’s initial failure to bargain prior to implementing a particular deci- sion, an employer cannot evade bargaining over that de- cision and its effects or justify making later related uni- lateral changes on the basis of the exigency once the need for immediate action has passed. This is because, unlike other circumstances which may permit unilateral action—such as an employer’s core entrepreneurial deci- sion17 or a union’s prior authorization18—emergencies, 14 Port Printing, 351 NLRB at 1270. 15 Kankakee County, 366 NLRB No. 181, slip op. at 2. 16 Port Printing, 351 NLRB at 1270 (internal quotation, modifica- tions, and citation omitted). 17 See, e.g., AG Communications Systems Corp., 350 NLRB 168, 171–172 (2007) (finding core entrepreneurial management decision exempt from bargaining under First National Maintenance Corp. v. 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD by their nature, provide only a narrow and limited respite from the duty to bargain. Unilateral actions taken in re- sponse to an emergency create a situation ripe for bar- gaining as soon as circumstances permit. Once the emergency justifying unilateral action has passed, the duty to notify the union and provide an opportunity to bargain over the unilateral change and its effects re- sumes. For example, in Port Printing, above, the Board held that while an impending hurricane excused an employ- er’s initial failure to bargain prior to its decision to im- plement layoffs, it did not excuse the employer’s subse- quent failure to bargain over the effects of the layoffs or over its use of nonunit employees to perform bargaining unit work during its recovery from the hurricane, once the need for immediate decision making created by the hurricane was over.19 Similarly, in Kankakee County, above, the Board held that an employer lawfully unilat- erally subcontracted unit work to address a computer system failure, but that subsequent similar and related unilateral subcontracting violated the Act because the initial computer system failure should have led the em- ployer to anticipate, and take steps to address, the possi- bility of a recurrence.20 Here, while we have found that the Respondent’s ini- tial unilateral actions were not unlawful because they directly addressed a life-threatening emergency that compelled immediate decision making, the particular decisions that the Respondent made were clearly not the only—or necessarily the best—possible responses to the staffing emergency. The Union’s bargaining proposals throughout the relevant period illustrate that it was pre- pared to engage with the Respondent in crafting a more finely tuned response that could easily have resulted in a faster and more comprehensive return to work of the Respondent’s nursing staff.21 The Respondent’s failure in this case to so much as tell the Union what problems it was facing and what steps it had taken to address them prevented any possibility of effective, timely collective bargaining about the staffing shortage. In addition to impeding the practical resolution NLRB, 452 U.S. 666 (1981)), rev. denied sub nom. Electrical Workers Local 21 v. NLRB, 563 F.3d 418 (9th Cir. 2009). 18 See, e.g., Academy of Magical Arts, Inc., 365 NLRB No. 101, slip op. at 1 fn. 2 (2017) (employer did not violate Sec. 8(a)(5) by changing shifts pursuant to union’s prior contractual authorization). 19 351 NLRB at 1270. 20 366 NLRB No. 181, slip op. at 2–3. 21 Contrary to our dissenting colleague, in observing that post- implementation bargaining could have led to different approaches to the staffing problem we neither express nor imply any judgment on either the necessary content of the parties’ bargaining or the substance of the Respondent’s actual exigency-related decisions. of the Respondent’s problem, the Respondent’s unilateral actions during bargaining for a first contract also neces- sarily impeded the broader collective-bargaining process, both before and after contract bargaining resumed on June 10, and undermined the Union’s status as the collec- tive-bargaining representative of the Respondent’s unit employees. As the Supreme Court has observed, such conduct runs counter to the congressional policy of en- couraging the practice and procedure of collective bar- gaining.22 Clear, timely communication between em- ployers and their employees’ collective-bargaining repre- sentatives can be among the most effective tools support- ing efficient workplace adjustments to rapidly changing circumstances. Based on these considerations, we conclude that the Respondent was obliged to tell the Union what actions it had taken and offer to bargain about them as soon as the need for immediate decision making had passed. Timely bargaining could have revealed that different measures—including, for example, a larger or smaller wage increase, in combination with other accommoda- tions—would have more effectively addressed the staff shortage. Accordingly, once the need for immediate ac- tion had subsided, the Respondent was obliged to bargain about both the effects of its decisions and about the deci- sions themselves. Finally, as soon as the Respondent had implemented the wage increase and begun hiring non- certified aides, the need for immediate decision making was over because the Respondent had lawfully taken the actions it deemed necessary to address the emergency. Our dissenting colleague criticizes our reliance on Port Printing and Kankakee County, because the Board in those cases excused employers’ duty to bargain over ini- tial decisions in response to exigent circumstances and required bargaining only over the effects of the initial decisions and over subsequent related decisions. At the same time, he would characterize the Respondent’s serial wage changes in this case as implementing a single deci- sion—albeit with several enumerated parts—over which he would find that the Respondent was excused from both decisional and effects bargaining entirely and in perpetuity by the initial exigency. But the employers’ conduct in Port Printing and Kankakee County could as easily have been characterized as implementing single multipart decisions as the present Respondent’s serial wage changes. Under our colleague’s reading of these cases, the employers’ duty to bargain over actions they took after the initial exigent circumstance had passed 22 Katz, above, 369 U.S. at 747 (unilateral changes during contract negotiations “must of necessity obstruct bargaining, contrary to the congressional policy”). METRO MAN IV, LLC D/B/A FOUNTAIN BLEU HEALTH 5 would appear to turn on how each employer character- ized its initial decision. Our colleague’s interpretation of the cases suggests that if the employer in Port Printing had decided, prior to the hurricane, (1) to lay off unit employees and (2) to later complete outstanding work orders with nonunit employees, its subsequent unilateral use of nonunit employees would have been shielded as part of its decision in response to the initial exigency. And, if the employer in Kankakee County had made one decision that it would henceforth subcontract all subse- quent computer system repair, it would never again have had a duty to bargain over individual instances of sub- contracting pursuant to that initial decision. This interpretation cannot be correct. Emergencies, by their nature, recede. They are not an opportunity for em- ployers to avoid bargaining for a sustained period out- lasting the emergency. While responding to exigent cir- cumstances may require an employer to take a series of discrete actions in response to evolving conditions, the rationale for excusing preimplementation bargaining over an employer’s initial response to a crisis is that the need for prompt action compels what would otherwise be an unlawful unilateral change. However, the exigent circumstances exception must remain narrow and limited if the collective-bargaining process the Act envisions is to succeed, and it would seriously undercut the statutory bargaining obligation for the Board to completely excuse bargaining over sustained or later actions an employer takes in response to a crisis once a measure of stability is restored. Here, regardless of how one characterizes the Respondent’s decision-making process, it took a series of actions—a wage increase, a wage decrease, and repeated hiring of new individual non-certified aides as late as August 2020—that had a continuing effect on the terms and conditions of employment of all of its unit employ- ees even after the need for prompt action had receded. We reject our dissenting colleague’s claim that the Re- spondent was privileged to act unilaterally until its “spec- ified condition was met,” i.e., “until the facility no longer housed COVID-positive patients.” Even assuming the Respondent had clearly and consistently communicated that condition to the employees, which it did not,23 the objective circumstances that briefly justified the Re- spondent’s unilateral actions did not license the Re- spondent to set its own benchmark for determining when the emergency had receded or allow it to avoid bargain- ing until it was satisfied that its own condition was met. 23 As mentioned previously, while Chief Operating Officer Dunn in- dicated that the wage increase would remain in effect until the facility no longer housed COVID-positive patients during a staff meeting, the Respondent also stated that the wage increase would continue “until further notice” in the notice it posted near the employees’ timeclock. Were that the rule, an employer could evade its bargain- ing obligation indefinitely by using exigent circumstanc- es as a bootstrap to impose conditions on further bargain- ing. We decline to expand the exigent circumstances exception so dramatically. The clear import of Kankakee and Port Printing was that the suspension of the duty to bargain was cabined by the emergency that made bargaining infeasible. Thus, in Kankakee, the employer was permitted to avoid bargain- ing over the emergency hiring of a contractor to address the computer systems failure, but one week later, when the unforeseen emergency had passed, the employer was required to bargain over additional subcontracting of computer server work. In Port Printing, once the emer- gency of the hurricane, which excused unilateral layoffs, had passed and cleanup begun, the duty to bargain reat- tached. The principles underlying the Board’s decisions in Port Printing and Kankakee County best support con- cluding, as we do here, that a respondent that is excused from preimplementation notice and bargaining by exi- gent circumstances nevertheless must promptly notify its employees’ representative about any changes in terms and conditions of employment it makes in response to an emergency and offer to bargain about such changes and their effects as soon as the need for immediate decision making has passed and bargaining is again feasible. By failing to provide the Union with timely notice and an opportunity to bargain once it was practicable to do so, the Respondent deprived employees and their Union of any meaningful say about how the evolving challenges presented by the COVID-19 pandemic would affect their terms and conditions of employment and fell far short of meeting its obligations under the Act. Thus, we conclude that the Respondent violated Sec- tion 8(a)(5) and (1) by failing to notify the Union of the actions it had taken and offer to bargain about both its decisions and their effects as soon as it had implemented those decisions. C. The Unilateral Wage Reduction It is undisputed that the Respondent reduced unit em- ployees’ wages on June 16 without offering the Union prior notice and opportunity to bargain. Wages are, of course, a mandatory subject of bargaining.24 The Re- spondent’s exceptions contain no argument specific to the judge’s finding of this violation beyond its claim that pandemic-related exigent circumstances generally privi- 24 Sec. 8(d) provides that “[T]o bargain collectively is the perfor- mance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and condition of em- ployment . . . . ” 29 U.S.C. § 158(d). 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD leged all three unilateral actions. With respect to the wage reduction, we reject that argument because nothing about the circumstances prevailing in the Respondent’s facility by June 16 constituted an extraordinary or un- foreseen circumstance that compelled an immediate deci- sion to reduce employee wages, or in any other way pre- vented the Respondent from providing the Union with prior notice and an opportunity to bargain about the pay reduction. Accordingly, consistent with the principles discussed above, we affirm the judge’s conclusion that the Respondent’s unilateral wage reduction violated Sec- tion 8(a)(5) and (1) of the Act. The Board’s standard remedy for an unlawful unilat- eral wage reduction is an order to rescind the unilateral change—restoring wages to the status quo ante—and make unit employees whole for any loss of earnings and other benefits suffered.25 The judge correctly concluded that the wage reduction violated the Act independently of the April 8 pay increase. However, the judge did not order the standard rescission and make-whole remedies for the wage reduction because, he found, there was nothing to rescind, and there was no evidence that either the wage increase or the wage reduction was motivated by antiunion considerations. The General Counsel and the Charging Party except to the judge’s failure to order the Board’s standard remedy. The Respondent argues for the first time in its answer to the General Counsel’s and Charging Party’s exceptions that the judge erred by treating the wage reduction as a separate violation from the wage increase, because the wage increase was limited from its inception to the peri- od during which the Respondent’s facility would house COVID-19-positive residents. Assuming, without deciding, that the Respondent has preserved this claim, despite having failed to include it in its exceptions,26 we reject its argument and find merit in the General Counsel’s and Charging Party’s exceptions to the judge’s recommended remedy. Despite character- izing the initial raise as one that would be in effect as long as COVID-19 patients were in the building, there can be no question that the Respondent reserved for itself the discretion to determine when to end the wage in- crease and the wage reduction was an independent deci- sion and action by the Respondent. In this respect, Ad- ministrator Cervi testified that, when the last facility res- idents tested negative for COVID-19 around June 11, she made a decision—albeit one that was consistent with her 25 See, e.g., Seldat, Inc., 369 NLRB No. 14, slip op. at 4–5 (2020). 26 Sec. 102.46(f) of the Board’s Rules and Regulations relevantly provides that “[m]atters not included in exceptions or cross-exceptions may not thereafter be urged before the Board, or in any further proceed- ing.” 29 C.F.R. § 102.46(f). understanding of the terms of the initial pay raise deci- sion—to reduce employee pay by $2 per hour, and that she communicated her decision to human resources per- sonnel for implementation.27 The Board ordinarily treats serial unilateral grants and rescissions of benefits as independently remediable vio- lations.28 This is because the Board’s settled practice with respect to unlawful unilateral changes that employ- ees may find beneficial allows the union, at its discretion, to retain any such beneficial changes,29 and the Board does not permit a respondent to avoid this remedy by a subsequent unlawful unilateral rescission of an initial unlawful unilateral grant of a benefit.30 Contrary to the Respondent and our dissenting colleague’s contention, nothing about the circumstances here warrants departure from our ordinary practice in this respect.31 27 In any case, even if we accepted the Respondent’s—and our dis- senting colleague’s—factual characterization of the wage reduction as a part of the initial pay raise decision, we would still find the unilateral reduction unlawful because, as explained above, the Respondent unlaw- fully failed to bargain about the pay raise decision itself at all relevant times—bargaining that necessarily would have addressed any duration- al limitation that was part of that decision. 28 See, e.g., Roemer Industries, 367 NLRB No. 133, slip op. at 1–2 & fn. 4 (2019), enfd. 824 Fed.Appx. 396 (6th Cir. 2020); HTH Corp., 356 NLRB 1397, 1402–1403 (2011), enfd. 693 F.3d 1051 (9th Cir. 2012); Lafayette Grinding Corp., 337 NLRB 832, 832, 834 (2002); Southside Electric Cooperative, 247 NLRB 705, 705, 708–709 (1980). 29 See, e.g., ADT, LLC, 371 NLRB No. 67, slip op. at 2 & fn. 4 (2022) (citing cases). 30 See Fresno Bee, 339 NLRB 1214, 1216 fn. 6 (2003). 31 A unanimous Board panel faced with almost identical facts recent- ly ordered the Board’s standard rescission and make-whole remedies in Confidence Management Systems, 370 NLRB No. 123, slip op. at 1–2 (2021). There, the panel concluded, based on uncontested complaint allegations, that the employer violated Sec. 8(a)(5) and (1) by unilater- ally rescinding a 25 percent increase in wages of laundry and house- keeping employees in a healthcare facility. Id. As in this case, the employer initially increased its employees’ wages in April 2020, during the COVID-19 pandemic, and then unilaterally rescinded the pandemic wage increase in June 2020. Id. The complaint in that case did not allege that the initial wage increase was separately unlawful. But be- cause the Board routinely orders rescission of unlawful withdrawals of benefits whether or not the unlawful withdrawal was preceded by an unlawful grant of the benefit at issue, that distinction can have no im- pact on the propriety of ordering an employer to restore unlawfully reduced wages and make employees whole in these circumstances. We respectfully disagree with our dissenting colleague’s suggestion that Confidence Management is not relevant to the remedial question here. While it is true that Confidence Management was a default judg- ment case, the Board’s determination of the appropriate remedy for a given violation, once found, does not turn on whether a respondent has previously contested the complaint allegations, and the Board has regu- larly applied remedial provisions set forth in default judgment cases as precedent in subsequent decisions. See, e.g., Hospital de la Concep- cion, 371 NLRB No. 155, slip op. at 2 fn. 5 (2022) (amending judge’s remedy in accordance with the default judgment decision in Paragon Systems, Inc., 371 NLRB No. 104 (2022)). METRO MAN IV, LLC D/B/A FOUNTAIN BLEU HEALTH 7 In particular, we reject any suggestion in the judge’s decision that the remedial issue turns on whether the Re- spondent’s unlawful unilateral changes were motivated by antiunion considerations. As the Board and the courts have long recognized, unilateral changes may violate Section 8(a)(5) of the Act “regardless of what the em- ployer’s motives in instituting such a change may have been.”32 Because unilateral changes “strike at the heart of the Union’s ability to effectively represent the unit employees,”33 and “frustrate[] the objectives of [Section] 8(a)(5),”34 the Board orders the rescission of such chang- es in order to restore, so far as possible, the Union’s bar- gaining position prior to the unlawful change. Here, the timing of the Respondent’s unilateral wage reduction— within a week after the parties had resumed contract bar- gaining for the first time during the pandemic—made the wage reduction particularly likely to undermine effective bargaining and erode the Union’s status as collective- bargaining representative of the unit employees, regard- less of motive.35 Thus, the wage reduction’s harmful effects on the parties’ bargaining were independent of any effect of the earlier unilateral wage increase and did not turn on any question of the Respondent’s overall good faith in bargaining. We conclude that restoring the status quo ante requires ordering the Board’s ordinary rescission and make-whole remedies, and we shall amend the judge’s remedy accordingly. AMENDED CONCLUSIONS OF LAW 1. Metro Man IV, LLC, d/b/a Fountain Bleu Health and Rehabilitation Center, Inc. (the Respondent) is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. SEIU Healthcare Michigan (the Union) is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing to promptly notify the Union and offer to bargain after implementing its decision to increase unit employee wages on April 8, 2020, the Respondent vio- lated Section 8(a)(5) and (1) of the Act. 4. By failing to promptly notify the Union and offer to bargain after implementing its decision to employ 32 Seafarers Local 777 (Yellow Cab) v. NLRB, 603 F. 2d 862, 889– 890 (D.C. Cir. 1978) (citing Katz, 369 U.S. at 742–743), denying rev. of 229 NLRB 1329 (1977). 33 Merrill & Ring, Inc., 262 NLRB 392, 395 (1982) (quoting The Lit- tle Rock Downtowner, Inc., 168 NLRB 107, 108 (1967), enfd. 414 F.2d 1084 (8th Cir. 1969)), enfd. 731 F.2d 605 (9th Cir. 1984). 34 Katz, 369 U.S. at 743. 35 Cf. Merrill & Ring, 262 NLRB at 395 (“There is no clearer or more effective way to erode the ability of the Union to bargain for the employees than for Respondent to make such changes without consul- tation with the Union.”) (quoting The Little Rock Downtowner, Inc., 168 NLRB at 108). “COVID Non-Certified CNAs” to perform unit CNA work beginning on April 9, 2020, the Respondent violat- ed Section 8(a)(5) and (1) of the Act. 5. By failing to notify the Union and offer to bargain prior to reducing unit employee wages on June 16, 2020, the Respondent violated Section 8(a)(5) and (1) of the Act. 6. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. AMENDED REMEDY Having found that the Respondent engaged in certain unfair labor practices, we shall order it to cease and de- sist and to take certain affirmative action designed to effectuate the polices of the Act. Specifically, we amend the judge’s remedy in the following respect. Having found that the Respondent unlawfully failed to bargain over its use of nonunit employees to perform bargaining unit work between April 9 and November 2, 2020, and unlawfully reduced unit employees’ wages on June 16, 2020, we shall order the Respondent to rescind the wage reduction, restore the status quo ante, and make the unit employees whole for any loss of earnings and other benefits attributable to its unlawful conduct. The make-whole remedy shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), the Respondent shall also compen- sate these employees for any other direct or foreseeable pecuniary harms incurred as a result of its unlawful con- duct. Compensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. In addition, we shall order the Respondent to compen- sate employees for any adverse tax consequences of re- ceiving lump-sum backpay awards, and to file with the Regional Director for Region 7, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar years for each employee. Ad- voServ of New Jersey, Inc., 363 NLRB 1324 (2016). We shall also order the Respondent to file with the Regional Director for Region 7 a copy of each backpay recipient’s corresponding W-2 form(s) reflecting the backpay award. Cascades Containerboard Packaging—Niagara, 370 NLRB No. 76 (2021), as modified in 371 NLRB No. 25 (2021). 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The Respondent, Metro Man IV, LLC, d/b/a Fountain Bleu Health and Rehabilitation Center, Inc., Livonia, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with SEIU Healthcare Michigan (the Union), by raising employee wages at its Livonia, Michigan facility without promptly providing the Union with notice and an opportunity to bargain about the wage increase decision and its effects. (b) Refusing to bargain collectively with the Union by using nonunit employees to perform bargaining unit work without promptly providing the Union with notice and an opportunity to bargain about that decision and its effects. (c) Changing the terms and conditions of employment of its unit employees by reducing employee wages with- out first notifying the Union and giving it an opportunity to bargain. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative actions 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 the employees in the following bargaining units: All full-time and regular part-time certified nurse’s aides (CNAs), restorative aides, resident assistants, die- tary aides, cooks, housekeeping aides, laundry aides, activity aides, and maintenance assistants employed by the Employer at its facility located at 28910 Plymouth Road, Livonia, Michigan; said unit excluding all regis- tered nurses, licensed practical nurses, professional employees, business office employees, clerical em- ployees, department heads, assistant department heads, confidential employees, administrators, on-call, tempo- rary and casual employees, guard, managers, and su- pervisors as defined in the National Labor Relations Act and all other employees. All full-time and regular part-time licensed practical nurses (LPNs) employed by the Employer at its facility located at 28910 Plymouth Road, Livonia, Michigan; said unit excluding all professional employees (includ- ing Registered Nurses (RNs)), business office employ- ees, clerical employees, department heads, assistant de- partment heads, confidential employees, administrators, on-call, temporary and casual employees, guards, man- agers, and other supervisors as defined in the National Labor Relations Act and all other employees. (b) Rescind the reduction in wages for unit employees that was unilaterally implemented on June 16, 2020. (c) Make unit employees whole for any loss of earn- ings and other benefits, and for any other direct or fore- seeable pecuniary harms suffered as a result of its unlaw- ful conduct, in the manner set forth in the remedy section of the judge’s decision as amended in this decision. (d) Compensate affected employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 7, within 21 days of the date the amount of backpay is fixed, either by agreement or by Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. (e) File with the Regional Director for Region 7, with- in 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of each backpay recipient’s corresponding W-2 form reflecting the backpay award. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Post at its Livonia, Michigan, facility copies of the attached notice marked “Appendix.” Copies of the no- tice, on forms provided by the Regional Director for Re- gion 7, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, deface, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- METRO MAN IV, LLC D/B/A FOUNTAIN BLEU HEALTH 9 rent employees and former employees employed by the Respondent at any time since April 8, 2020.36 (h) Within 21 days after service by the Region, file with the Regional Director for Region 7 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. December 28, 2022 ______________________________________ Gwynne A. Wilcox, Member ______________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER KAPLAN, dissenting in part. In this case, we are confronted with a situation in which the Respondent, a nursing home, took immediate and decisive action to confront the deadly realities of the Covid-19 pandemic. Fearing for their own safety, nearly three-quarters of the Respondent’s staff stopped report- ing to work at the onset of the pandemic in March 2020. Not surprisingly, the Respondent struggled to provide the critical care necessary for its vulnerable residents. To confront this unprecedent situation and without consult- ing SEIU Healthcare Michigan (the Union),1 the Re- spondent quickly took two actions: it implemented a temporary raise and hired, on a temporary basis, nonunit, 36 If the facilities involved in these proceedings are open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facilities involved in these proceedings are closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted within 14 days after the facilities reopen and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judg- ment of a United States court of appeals, the words in the notice read- ing “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.” 1 The Union represented two units of the Respondent’s employ- ees—one of licensed practical nurses (LPNs) and another of certified nursing assistants (CNAs) and other support staff. noncertified nursing assistants to perform unit work. Because of its quick action, the Respondent undoubtedly saved lives. My colleagues and I agree that the pandemic presented an extraordinary and unforeseen imminent threat to hu- man life that privileged the Respondent to take these immediate, life-saving unilateral actions. However, my colleagues go on to find that this exigency merely de- layed the Respondent’s duty to bargain over these deci- sions with the Union. They therefore conclude that the Respondent violated Section 8(a)(5) and (1) by failing to give the Union notice and opportunity to bargain over these decisions and their effects. For the reasons dis- cussed below, I respectfully dissent in part.2 Background The Respondent operates a 108-bed nursing home in Livonia, Michigan. At the end of March 2020, residents of the Respondent’s facility began contracting Covid-19 and upwards of 75 percent of the Respondent’s staff stopped reporting to work, including LPNs and CNAs. The Respondent struggled to provide necessary care to Covid-19 patients as well as other vulnerable nursing home residents. The Respondent’s administrator, Laura Cervi, testified that “[s]ome of us, management, were sleeping in the building 24/7. We were sleeping on the floor here because we had no staff. The agencies wouldn’t even come into our building to help . . . . Every day we were losing residents and no one came to help.” Likewise, the Respondent’s interim director of nursing, Maria McFaddin, testified that “we were working 36[-], 46-hour [shifts] nonstop and dealing with dead bodies every day.” All told, between 20 and 35 residents died during the approximately 11 weeks that Covid was in- fecting residents in the Respondent’s facility. Faced with these devastating conditions, and in an at- tempt to stem the loss of life, the Respondent’s chief operating officer (COO), Charles Dunn, acted swiftly to address the staffing emergency. First, at an employee meeting in April 2020, COO Dunn informed employees that there would be a temporary wage increase of $2 per 2 I agree with my colleagues that the Respondent has not established that its LPNs possess Sec. 2(11) supervisory authority. I do not rely, however, on the judge’s unnecessary adverse inference that, beyond a single documented verbal warning, the “lack of evidence” of LPNs being disciplined for their failure to supervise CNAs “leads to the con- clusion that, regardless of the stated policy, there is no practice of hold- ing LPNs accountable for the shortcomings of CNAs.” I also note that no party argues that the Respondent is precluded from advancing its supervisory status defense because it voluntarily recognized the Union as the representative of LPNs in a unit that excluded statutory supervi- sors. I also join my colleagues in affirming the judge’s procedural rulings on their merits. 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hour and explained that the raise would stay in place dur- ing the “period of time when we are taking care of Covid patients in the building.” Along with this statement, the Respondent posted two notices next to each other near the timeclocks. In one, Dunn reiterated his earlier an- nouncement of the $2-per hour raise, observed that it would remain in effect “until further notice,” and praised employees “dedication, hard work, caring and compas- sion to all the residents at this unprecedent time.” In the other, which was updated daily, the Respondent noted the number of residents suffering from Covid-19. Con- sistent with the Respondent’s representations to employ- ees, and upon notice that the facility was Covid free in June 2020, Cervi rescinded the temporary wage increase at the end of the relevant pay period. Second, the Re- spondent took advantage of a federal emergency waiver of licensing requirements by temporarily hiring nonunit “COVID Non-Certified CNAs” for work normally per- formed by unit CNAs. By November, the Respondent had ceased employing any of these temporary nonunit employees.3 Analysis I. THE TERMS OF THE TEMPORARY WAGE INCREASE INCLUDED A DEFINED ENDING POINT EXPRESSLY TIED TO THE END OF EMERGENCY CONDITIONS As a threshold matter, I fundamentally disagree with my colleagues’ view of what took place here. My col- leagues’ find that the Respondent made two separate decisions: one to temporarily raise wages until a certain condition was fulfilled and then to discontinue the wage increase once that condition was met. With respect, I believe that the more accurate representation of the Re- spondent’s action here is that it made one decision, in April, to temporarily raise wages until the facility no longer housed COVID-positive residents.4 At the time that the wage increase was announced, the Respondent was literally making life and death decisions. 3 Unlike the recission of the temporary wage increase, the General Counsel did not allege that the Respondent’s decision to stop tempo- rarily employing non-unit “COVID Non-Certified CNAs” in November 2020 separately violated the Act. 4 The majority’s suggestion that the Respondent could be barred from making this single-course-of-conduct argument is easily rebuked. The Respondent argued in its answer to the complaint that exigent circumstances justified “temporary hazard pay” while Covid-19 rav- aged its facility. (Emphasis added). By definition, at the time that a “temporary” condition goes into effect, an ending point is also created. And, here, the ending point for the “temporary” hazard pay was defined at the time of the pay increase. Further, the Respondent continued to argue that the pay increase was temporary in its post-hearing brief to the judge, exceptions and supporting brief to the Board, and reply brief to both the General Counsel’s and Charging Party’s answering briefs. Therefore, I find that this argument is not precluded by Rule 102.46(f). The exigency of the circumstances, and the devastating effects of staff members leaving, would have been evi- dent to any reasonable employee. At the time that Dunn informed employees of the emergency wage increase, he had clearly decided: (1) that he was offering employees a $2 per hour wage increase, (2) that the wage increase was temporary, and (3) that the wage increase would end when the employees were no longer caring for COVID- positive residents.5 In other words, Dunn had decided that when the number of positive patients reached zero, the automatic termination of the pay increase would be triggered. There was no further decision Dunn made beyond this initial decision. When the pay increases ended when the specified event occurred, there was no separate decision; rather, this was simply effectuating the initial decision that Dunn made in April.6 In finding that the Respondent made two separate de- cisions—the decision to initiate the pay raise and then the decision to end it—my colleagues assert that “[t]here can be no question that the Respondent reserved for itself the discretion to determine when to end the wage in- crease and the wage reduction was an independent deci- sion and action by the Respondent.” In support of their assertion, my colleagues cite the testimony of Adminis- trator Cervi, who stated that she made the decision to terminate the wage increase when the Respondent be- came Covid-free. Critically, my colleagues acknowledge, as they must, that she also testified that her decision was “consistent with her understanding of the terms of the initial pay raise decision.” It is important to note that there is no evidence in the record to suggest that the Respondent exercised any dis- cretion at the time the pay raise was rescinded; rather, the evidence establishes that the Respondent merely acted in accordance with the specific, quantifiable condition iden- tified at the time of the April decision. This not a case where the condition to be satisfied was subjective or un- clear, nor is this a case where there is evidence that the 5 My colleagues suggest that the statement that the raises would re- main in effect “until further notice” in the posted notice is at odds with COO Dunn’s oral statement to employees that the raise would last for the “period of time when we are taking care of Covid patients in the building.” But at the time it made the announcement, the Respondent could not have known how long its residents would suffer from Covid. Thus, the fact that the raise would remain in effect “until further notice” was a completely accurate statement. And the second notice regularly updated unit employees as to the status of the Respondent’s residents and, thereby, the status of the temporary raise. 6 My colleagues curiously criticize my analysis, asserting that “[e]mergencies, by their nature, recede.” But the Respondent’s pay raise expressly recognized this to be the case. The pay raise was insti- tuted to address the exigent circumstances presented by having COVID-positive patients at the facility, and by its terms, the pay raise would end when the facility no longer housed COVID-positive patients. METRO MAN IV, LLC D/B/A FOUNTAIN BLEU HEALTH 11 Respondent decided to end the pay increase due to fac- tors beyond the terms of the temporary pay raise, such as by reference to CDC rules or other guidelines. Rather, on this record, it is clear that Dunn only made one deci- sion and that the Respondent’s subsequent actions mere- ly effectuated that decision.7 My colleagues’ conclusion also disregards their own findings with respect to the Respondent’s exigency. For instance, my colleagues observe that COO Dunn an- nounced the temporary raise at a “sparsely” attended employee meeting. As my colleagues acknowledge, however, the Respondent was facing a “severe staff[ing] shortage” that required management to work “36[-], 46- hour [shifts] nonstop” treating residents. To expect the Respondent to hold a meeting attended by even a majori- ty of affected employees completely ignores the reality the Respondent was facing in that moment and under- mines the Board’s exigency precedent, discussed below, which is premised on the need for prompt unilateral ac- tion. II. THE EXIGENT CIRCUMSTANCES ELIMINATED THE RESPONDENT’S DUTY TO ENGAGE IN DECISIONAL BARGAINING Next, applying Bottom Line Enterprises8 and RBE Electronics of S.D.,9 my colleagues find, and I agree, that 7 The majority cites several cases for the proposition that the Board ordinarily treats serial unilateral grants and rescissions of benefits as independent violations. See Roemer Industries, 367 NLRB No. 133, slip op. at 1–2 & fn. 4 (2019), enfd. 824 Fed. Appx. 396 (6th Cir. 2020); HTH Corp., 356 NLRB 1397, 1402–1403 (2011), enfd. 693 F.3d 1051 (9th Cir. 2012); Lafayette Grinding Corp., 337 NLRB 832, 832, 834 (2002); Southside Electric Cooperative, 247 NLRB 705, 705, 708- 709 (1980). In none of those cases, however, did the respondent an- nounce at the outset that the wage increase would be temporary in nature, as the Respondent did here, let alone specify at the outset the specific terms for the termination of the pay increase. The majority also implies that my position on the merits in this case is inconsistent with my position on the merits in Confidence Manage- ment Systems, 370 NLRB No. 123 (2021). To rely on Confidence Management in this way is completely inappropriate. Confidence Management was a default judgement case. There, the General Coun- sel alleged that the respondent unlawfully rescinded a pandemic-related wage increase. The respondent did not file an answer to the complaint or a response to the Board’s Notice to Show Cause why default judg- ment should not be entered against it. Consistent with its Rules and Regulations, the Board entered default judgment against the respondent based solely on the allegations in the complaint. See Rule 102.20 (“All allegations in the complaint, if no answer is filed, . . . will be deemed to be admitted to be true and will be so found by the Board, unless good cause to the contrary is shown.”) The same is not appropriate here, where the Respondent is actively contesting the complaint allegations. Moreover, here, the record evidence supports the Respondent’s position that both the implementation and rescission comprised a single course of lawful conduct. 8 302 NLRB 373 (1991), enfd. sub nom. Master Window Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994). 9 320 NLRB 80 (1995). the extraordinary circumstances faced by the Respondent in early 2020 constituted “exigent circumstances.” Curi- ously, however, my colleagues find that the exigent cir- cumstance only temporarily delayed the Respondent’s duty to bargain over the decisions until some indetermi- nate point after the exigency passed, rather than excuse their duty entirely. Accordingly, they find that the Re- spondent violated Section 8(a)(5) and (1) by failing to give the Union notice and an opportunity to bargain over its earlier decisions at this later point. I disagree and would find that the circumstances here completely ex- cused the Respondent’s duty to engage in bargaining over its decisions to address the critical staffing shortfall. In Bottom Line Enterprises, the Board concluded that, during negotiations for a collective-bargaining agree- ment, an employer is obligated to refrain from making unilateral changes to employees’ terms and conditions of employment unless the parties reach an overall impasse. However, the Board recognized an exception to this rule “when economic exigencies compel prompt action.” 302 NLRB at 347. In RBE Electronics of S.D., the Board further explained that “economic exigencies” are “ex- traordinary events which are an unforeseen occurrence, having a major economic effect [requiring] the company to take immediate action.” 320 NLRB 80, 81 (internal quotations and citations omitted). Critically, the RBE Electronics Board repeatedly recognized that such “com- pelling economic considerations . . . excuse[] bargaining entirely.” Id. at 81 (emphasis added). In finding that the exigency only delayed bargaining, rather than excused it, my colleagues begin innocuously enough, observing: Even where the Board has excused an employer’s ini- tial failure to bargain in response to exigencies, the Board has found that the employer must, after the need for immediate decision making has passed, provide no- tice and an opportunity to bargain over the effects of such unilateral changes (where effects bargaining is re- quired) as well as over any subsequent related unilat- eral changes. (Emphasis added.) In the very next sentence, however, they subtly, but dramatically, expand this duty to bargain, stating: While exigent circumstances may briefly excuse an employer’s initial failure to bargain prior to implement- ing a particular decision, an employer cannot evade bargaining over that decision and its effects or justify making later related unilateral changes on the basis of the exigency once the need for immediate action has passed. (Emphases added.) This expanded duty to bargain over the original decision itself runs completely contrary to RBE 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Electronics, which excused bargaining entirely, not merely until the exigency had passed. Furthermore, my colleagues fail to cite a single prece- dent that supports this expanded duty to bargain. Their attempt to rely on Port Printing10 and Kankakee County Training Center11 is unavailing. In Port Printing, the employer laid off unit employees in the face of an im- pending hurricane and mandatory, citywide evacuation order. The Board found that the emergency excused the employer’s failure to bargain prior to implementing this decision. 351 NLRB at 1270. After the hurricane had passed and the employer resumed operations, the em- ployer decided to use nonunit employees (including a supervisor) to perform unit work. The Board found that the exigency did not privilege this separate decision and that the employer was obligated to bargain over it. Id. Similarly, in Kankakee County Training Center, the employer subcontracted unit information technology (IT) work after its lone IT employee unexpectedly resigned and its server crashed. The Board found that these un- foreseen circumstances excused the employer’s failure to bargain prior to subcontracting. 366 NLRB at slip op. 3. A few months later, however, the employer made a sec- ond, separate decision to subcontract when another serv- er crashed. The Board found that the exigency did not privilege this separate decision as the second crash “was in no way unforeseen.” Id. In both cases, the Board excused the employer’s deci- sional bargaining obligation in its entirety over its first decision but found that no emergency or unforeseen cir- cumstance privileged the employer’s separate, second decision. The Board did not find, as my colleagues do, a delayed bargaining obligation over the first decision in either case.12 My colleagues also attempt to second guess the Re- spondent’s exigency-related decisions, observing that the Respondent’s decisions were “clearly not the only—or 10 351 NLRB 1269 (2007), enfd. 589 F.3d 812 (5th Cir. 2009). 11 366 NLRB No. 181 (2018). 12 Even though I have explained why I agree with the holdings in Port Printing and Kankakee County and why those cases presented significantly different factual scenarios than the instant matter, my colleagues nevertheless assert that my position suggests that the “em- ployer’s conduct” in those cases “could as easily have been character- ized as implementing single multi-part decisions as the [] Respondent’s serial wage changes.” (Emphasis added). If I agreed that those cases could be read that way, I would say so rather than distinguish them here. But to clear up any confusion: I would find that there is a signif- icant difference between (1) an employer facing an emergency situation making a single decision at one point in time to raise wages temporarily until a set condition is met signaling the end of the emergency situation, and (2) an employer making two separate decisions, made at different points in time and addressing different issues, as present in Port Print- ing and Kankakee County. necessarily the best—possible responses to the staffing emergency.” They also note that the Union could have helped the Respondent craft “a more finely tuned re- sponse that could easily have resulted in a faster and more comprehensive return to work of the Respondent’s nursing staff.” It is precisely this type of post hoc review that the Board was trying to prevent in Bottom Line, RBE Electronics, Port Printing, and Kankakee County Train- ing Center. Here, the Respondent decided to increase wages and use nonunit employees in light of the emergency, life- threatening circumstances created by the global pandem- ic. Having met Bottom Line and RBE Electronics’ heavy burden of establishing exigent circumstances, the Re- spondent’s decisional bargaining obligation should be excused. It should not linger, waiting to assert itself once again at some ill-defined point in the future. According- ly, I would dismiss the allegations that the Respondent violated Section 8(a)(5) and (1) by not giving the Union notice and an opportunity to bargain over either decision. III. THE RESPONDENT HAD A DUTY TO ENGAGE IN EFFECTS BARGAINING OVER THE DECISION TO EMPLOY “COVID NON-CERTIFIED CNAS.” Finally, an employer that has taken lawful unilateral action, whether under exigent circumstances or other- wise, may still be obligated to bargain the effects of that decision.13 Importantly, the practical purpose of effects bargaining is to give represented employees a voice in the implementation of a decision affecting their terms and conditions of employment. While effects bargaining is appropriate in many contexts, like where an employer unilaterally decides to layoff unit employees or close its plant,14 and often involves matters like employee bene- fits, severance, recall rights, and transfers,15 it is not nec- essary in all circumstances. 13 See, First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), (finding that the employer did not have a duty to bargain over the decision to terminate its nursing home contract but did have a duty to bargain about the effects of that decision). 14 See, e.g., John R. Crowley & Bros., Inc., 297 NLRB 770 (1990) (finding that the respondent unlawfully failed to notify the union of its decision to cease operations until after the cessation and thus “preclud- ed meaningful bargaining over the effects of its decision”). 15 See, e.g., Teamsters Local Union No. 206 (Safeway, Inc.), 368 NLRB No. 15, slip op. at 15 fn. 56 (2019) (observing that severance is a “traditional topic in ‘effects’ bargaining”); Clements Wire, 257 NLRB 1058, 1059 (1981) (finding that obligation to bargain over layoff in- cludes duty to bargain over effects of layoff, including “manner in which any recalls are to be effected”); Thompson Transport Co., 184 NLRB 38, 39 (1970) (concluding that the respondent’s delay in bar- gaining effects of closure decision “precluded the parties from engag- ing in meaningful negotiations with respect to issues … including their possible transfer to [the r]espondent’s other operation”). METRO MAN IV, LLC D/B/A FOUNTAIN BLEU HEALTH 13 Applying these principles, I find, like my colleagues, that the Respondent’s decision to employ “COVID Non- Certified CNAs” implicated legitimate concerns that re- quired effects bargaining. Despite the pandemic exigen- cy, implementation questions could have arisen with re- gard to the hiring, including, for example, the scheduling of the noncertified nursing assistants and their integration with unit employees at the Respondent’s facility. I there- fore join my colleagues in finding that the Respondent violated Section 8(a)(5) and (1) by failing to bargain the effects of this decision.16 By contrast, I find that the Respondent’s decision to temporarily increase employees’ wages did not create an effects bargaining obligation. As discussed above, ef- fects bargaining is not warranted in all circumstances. Here, the Respondent’s wage change was a temporary alteration to employees’ terms and conditions of em- ployment. Any bargaining regarding the implementation of that decision would necessarily call into question the decision itself, which the Respondent was privileged to make under the circumstances. I thus find that the Re- spondent was not obligated to bargain the effects of its temporary wage change and, therefore, did not violate Section 8(a)(5) and (1) by failing to do so.17 Conclusion My colleagues and I agree that the pandemic “created an extraordinary and unforeseen imminent threat to resi- dent lives that compelled immediate action” by the Re- spondent. Despite this unprecedented exigency, howev- er, my colleagues find that the Respondent was still obli- gated to bargain over its lawful decisions to temporarily change wages and to employ nonunit employees to per- form unit work after the fact. Board law, however, clear- ly—and appropriately—excuses a respondent who is faced with such exigencies from its decisional bargaining obligation, in its entirety. Accordingly, I respectfully dissent in part. 16 To the extent that make-whole relief is warranted for this viola- tion, unlike my colleagues, I would require the Respondent to compen- sate the affected employees for their other pecuniary harms only insofar as the losses were directly caused by the unfair labor practice, or indi- rectly caused by the unfair labor practice where the causal link between the loss and the unfair labor practice is sufficiently clear, consistent with my partial dissent in Thryv, Inc., 372 NLRB No. 22 (2022). 17 In some cases, the Board has found a “technical” violation of the duty to bargain over the effects of a decision. See, e.g., AG Communi- cation Systems Corp., 350 NLRB 168, 173 (2007) (finding effects- bargaining violation, ordering the respondent to cease-and-desist from committing such infractions, but determining that “no purpose would be served by ordering bargaining over the effects . . . as there appears to be little or nothing over which to bargain”), rev. denied sub nom. IBEW Local 21 v. NLRB, 563 F.3d 418 (9th Cir. 2009). I see no purpose in finding such a violation, not least because it would not materially affect the remedy. Dated, Washington, D.C. December 28, 2022 ______________________________________ Marvin E. Kaplan, Member NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain collectively with SEIU Healthcare Michigan (the Union), by raising your wages without promptly providing the Union with notice and an opportunity to bargain about the wage increase decision and its effects. WE WILL NOT refuse to bargain collectively with the Union by using nonunit employees to perform bargaining unit work without promptly providing the Union with notice and an opportunity to bargain about that decision and its effects. WE WILL NOT change the terms and conditions of your employment by reducing your wages without first notify- ing the Union and giving it an opportunity to bargain. 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 or conditions of employment of unit employees, notify, and, on request, bargain with the Un- ion as the exclusive collective-bargaining representative of the employees in the following bargaining units: All full-time and regular part-time certified nurse’s aides (CNAs), restorative aides, resident assistants, die- tary aides, cooks, housekeeping aides, laundry aides, activity aides, and maintenance assistants employed by 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Employer at its facility located at 28910 Plymouth Road, Livonia, Michigan; said unit excluding all regis- tered nurses, licensed practical nurses, professional employees, business office employees, clerical em- ployees, department heads, assistant department heads, confidential employees, administrators, on-call, tempo- rary and casual employees, guard, managers, and su- pervisors as defined in the National Labor Relations Act and all other employees. All full-time and regular part-time licensed practical nurses (LPNs) employed by the Employer at its facility located at 28910 Plymouth Road, Livonia, Michigan; said unit excluding all professional employees (includ- ing Registered Nurses (RNs)), business office employ- ees, clerical employees, department heads, assistant de- partment heads, confidential employees, administrators, on-call, temporary and casual employees, guards, man- agers, and other supervisors as defined in the National Labor Relations Act and all other employees. WE WILL rescind the reduction in wages for unit em- ployees that was unilaterally implemented on June 16, 2020. WE WILL make unit employees whole for any loss of earnings and other benefits suffered as a result of our unlawful use of nonunit employees to perform bargain- ing unit work and reduction of unit employee wages on June 16, 2020, plus interest, and WE WILL also make them whole for any other direct or foreseeable pecuniary harms suffered as a result of our unlawful conduct. WE WILL compensate affected employees for the ad- verse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Di- rector for Region 7, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. WE WILL file with the Regional Director for Region 7, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of each backpay recipient’s corresponding W-2 forms reflecting the backpay award. METRO MAN IV, LLC D/B/A FOUNTAIN BLEU HEALTH AND REHABILITATION CENTER, INC. The Board’s decision can be found at https://www.nlrb.gov/case/07-CA-264407 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., Washing- ton, D.C. 20570, or by calling (202) 273-1940. Donna M. Nixon, Esq., for the General Counsel. Grant T. Pecor and David Weldon, Esqs. (Barnes & Thorn- burg, LLP), for the Respondent. Judy A. Champa and Richard G. Mack, Jr., Esqs. (Miller Co- hen, PLC), for the Charging Party. DECISION STATEMENT OF THE CASE IRA SANDRON, Administrative Law Judge. This matter arises from a complaint and notice of hearing (the complaint) issued on March 19, 2021, based on unfair labor practice charges that SEIU Healthcare Michigan (the Union) filed against Metro Man IV, LLC d/b/a Fountain Bleu Health and Rehabilitation Center, Inc. (the Respondent or the Company). They relate to the Union’s role as collective-bargaining representative for two separate bargaining units: (1) licensed practical nurses (LPNs), and (2) service unit employees, including certified nurse’s aides (CNAs). Pursuant to notice, I conducted a remote trial by Zoom from May 24–26 and June 3 and 4, 2021, during which I afforded the parties a full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence. Issues (1) Did the Respondent violate Section 8(a)(5) and (1) of the Act by unilaterally making the following changes without af- fording the Union notice and an opportunity to bargain: (A) On April 8, 2020,1 conferred a $2/hour wage increase on all employees as a Coronavirus disease (COVID-19) (COVID) pandemic (pandemic) incentive? (B) On June 16, rescinded that wage increase? (C) In April, began employing individuals classified as non- certified nurses’ aides (noncertified aides) to perform patient care duties performed by CNAs?2 (2) Did Attorney Grant Pecor (Pecor), on May 25, 2021, threaten employee Kelita Metcalf (Metcalf) with unspecified discipline for attending the trial as a witness for the General Counsel? A final issue is the Respondent’s affirmative defense that the LPNs have been and are statutory supervisors within the mean- 1 All dates hereinafter occurred in 2020 unless otherwise indicated or clear from the context. 2 Previously, they were titled certified evaluated nurse’s assistants (CENAs). METRO MAN IV, LLC D/B/A FOUNTAIN BLEU HEALTH 15 ing of Section 2(11) of the Act, even though the Respondent continued to recognize the Union as their bargaining repre- sentative after its purchase of the operation. Preliminarily, no allegation is before me that either the Re- spondent or the Union has engaged in bad faith bargaining in negotiating for first collective-bargaining agreements for the two units, in general or specifically regarding pandemic pay or the responsibilities and authority of LPNs over CNAs. Nor is there an assertion that either party withdrew from tentative proposals in bad faith. See TNT Skypak, Inc., 328 NLRB 468, 469 (1999), enfd. 208 F.3d 362 (2nd Cir. 2000). The parties remain engaged in negotiations. Therefore, I will not recite in detail all of the proposals and counterproposals that the parties have exchanged during negotiations, or what occurred at each bargaining session. Instead, I will address only particular as- pects of the negotiations that I deem pertinent to the allegations herein. I rejected as irrelevant the Respondent’s proffered evidence relating to contract negotiations between Pecor and the Union concerning seven or eight other nursing home clients of Pecor’s in the Detroit, Michigan metropolitan area. I adhere to that determination inasmuch as negotiations for the Respondent’s collective-bargaining agreements were conducted on a single- employer basis, and I can draw no inferences from what the parties negotiated with respect to other employers, whose par- ticular situations are unknown. Witnesses and Credibility The General Counsel called: (1) SEIU representatives Larry Alcoff (Alcoff), Serena Ever- ett (Everett), and Saran Walker (Walker). (2) LPN Metcalf and, as rebuttal witnesses, former LPN Tomika Harris (Harris) and LPN Lanesha Dann-Hightower (Hightower). The Respondent called: (1) Pecor. (2) Laura Cervi (Cervi), administrator; Zenee Drayton (Dray- ton), former scheduler; Charles Dunn (Dunn), part owner and chief operating officer; Martha McFadden (McFadden), direc- tor of nursing (DON); Cecilia Nugal (Nugal), former DON; and Sherina Rock (Pinkie) (Rock), unit manager (UM). (1) LPN Majors. Majors testified that when Pecor conducted a pretrial inter- view with her, he failed to provide her the assurances required by Johnnie’s Poultry, 146 NLRB 770 (1964), enf. denied 344 F.2d 617 (8th Cir. 1965). Pecor testified to the contrary, aver- ring that he followed his longstanding practice of reading them to employee witnesses, and I find this more likely. In any event, the General Counsel does not allege a Johnnie’s Poultry violation. I will address credibility by section, applying the following well-established judicial precepts. Firstly, a witness may be found partially credible because the mere fact that the witness is discredited on one point does not automatically mean he or she must be entirely discredited. Golden Hours Convalescent Hospitals, 182 NLRB 796, 799 (1970). Rather, a witness’ tes- timony is appropriately weighed with the evidence as a whole and evaluated for plausibility. Id. at 798–799; see also MEMC Electronic Materials, Inc., 342 NLRB 1172, 1183 fn. 13 (2004); Excel Containers, Inc., 325 NLRB 17, 17 fn. 1 (1997). Secondly, when credibility resolution is not based on obser- vations of witnesses’ testimonial demeanor, the choice between conflicting testimonies rests on the weight of the evidence, established or admitted facts, inherent probabilities, and rea- sonable inferences drawn from the record as a whole. Taylor Motors, Inc., 366 NLRB No. 69 slip op. at 1 fn. 3 (2018); Lig- notock Corp., 298 NLRB 209, 209 fn. 1 (1990). Finally, I have also considered the longstanding principle that “the testimony of current employees that contradicts state- ments of their supervisors is likely to be particularly reliable because these witnesses are testifying adversely to their pecuni- ary interests.” Flexsteel Industries, 316 NLRB 745, 745 (1995), enfd. 83 F.3d 419 (5th Cir. 1996), citing Gold Standard Enterprises, Inc., 234 NLRB 618, 619 (1978), enf. denied on other grounds 607 F.2d 1208 (7th Cir. 1979) and Georgia Rug Mill, 131 NLRB 1304, 1304 fn. 2 (1961); see also Federal Stainless Sink Division of Unarco, 197 NLRB 489, 491 (1972). This applies to Metcalf and Hightower, who testified for the General Counsel. Facts Based on the entire record, including testimony and my ob- servations of witness demeanor, documents, stipulations, and the thoughtful posttrial briefs that all parties filed, I find the following. Respondent’s Purchase of the Facility Board jurisdiction as alleged in the complaint is admitted, and I so find. The Respondent, a corporation with an office and place of business in Livonia, Michigan, operates a 108-bed nursing home (the facility) that has four units: one is for new arrivals and is considered transitional, one is for short-term residents and is rehabilitative in nature, and two are joined and are for long-term residents requiring skilled nursing care. On about October 1, 2018 (all dates hereinafter in this sec- tion were in 2018), the Respondent purchased the facility from Wellspring Lutheran Senior Services, which recognized the Union as the representative of two separate bargaining units: (1) all regular and part-time LPNs (the LPN unit); and (2) all regular and part-time CNAs, restorative aides, resident assis- tants, dietary employees, housekeeping employees, laundry employees, maintenance employees, and activities aide em- ployees (the service unit). By email of September 6, Pecor notified Everett, a union di- rector, of the pending asset sale (R. Exh. 24). He stated that employees would have to fill out applications for employment and that the Respondent would recognize the Union if a majori- ty of them accepted. He also suggested that the parties set aside dates in October/November for bargaining in that eventuality. See also GC Exh. 27, Pecor’s September 25 letter to Everett, enclosing the terms and conditions of employment that would be offered to employees (R. Exh. 9), Metcalf’s conditional offer of employment. 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Section 18.1 of the above terms and conditions of employ- ment is entitled Role of the Charge Nurse. It provides, inter alia, that charge nurses use their discretion to assign work and responsibly direct all personnel providing patient care; evaluate and, where appropriate, discipline CNAs and others providing patient care; and assume a primary role in making recommen- dations regarding assigning work, discipline, hiring, firing, directing work, training, and appropriately disciplining em- ployees under their responsibility as directed by the DON. Further, any failure of a charge nurse to appropriately carry out these responsibilities constitutes just cause for discipline, up to and including discharge. Everett testified that the Union was not aware of any charge nurses at the facility, and there is no evidence that anyone has held that title. By letter of October 15, Pecor notified Everett that a majori- ty of employees of both units had accepted employment and that the Respondent therefore voluntarily recognized the Union. (GC Exh. 2.) He enclosed proposed collective-bargaining agreements for the Union to accept or reject as package offers. His proposal for a new collective-bargaining agreement for the LPN unit was for nurses, excluding supervisors, but it made no reference to “charge nurses.” The language in Section 18.1 was repeated, as applying to “every nurse.” General Counsel’s Exhibit 23 is the (undated) LPN job de- scription that Metcalf received after the Respondent took over the operation. It states that the LPN is “responsible for the supervision of all nursing activities on the unit” but is silent on the LPN’s authority over CNAs or other staff members. This job description is still in effect. State Pandemic Wage Increase On July 1, the Governor of Michigan approved a supple- mental appropriation in response to the pandemic, providing in relevant part that effective from July1 until September 30, the State would pay direct care workers employed by skilled nurs- ing facilities $2 per hour (GC Exh. 7 at 6). These workers were RNs, LPNs, CNAs, and respiratory therapists. Respondent’s Pandemic Wage Increase The Respondent suffered a severe staff shortage after the ad- vent of the pandemic in March, with approximately 60–75 per- cent calling out or not showing up. Management was forced to fill in to provide patient care, sometimes working around the clock. As a result, Chief Operating Officer Dunn decided to give the employees a $2/hour hazard pay raise as long as COVID patients were in the building. He announced this in the dining hall in the first week of April to all employees who were at work that day. A notice, signed by Dunn, was posted by the time clock, stating that the pay increase was effective April 8 and in effect until further notice. (GC Exh. 17.) Pursuant to a mandate by the Center for Disease Control, the Company posted daily at the time clock by the employee en- trance and exit, a report of what rooms had COVID patients. June 11 was the last day that any patients were COVID- positive, and the posting on June 12 was “COVID free.” (R. Exh. 11.) As a result, June 16 was the last day that the $2/hour pay raise was in effect. Nothing was announced to employees about its discontinuance. Neither when the raise was conferred or rescinded did any- one representing the Respondent attempt to notify the Union. The Union first became aware on August 4 that the Respondent had conferred and then rescinded the $2/hour pandemic wage increase; Alcoff learned this from service unit employees when they were caucusing during contract negotiations. I note that the first discussion the parties had on the subject of pandemic pay was during June 10 negotiations, 2 months after the wage increase was implemented—at which time Pecor said nothing about the April increase. Everett had no problems communicating with Pecor at any time, either before or after he changed law firms but continued to represent the Company. After the onset of the pandemic, they had phone conversations concerning other employers that he represented. I do not accept Administrator Cervi’s testimony that she did not reach out to the Union regarding the pandemic pay incen- tive because she had “[a]bsolutely no time.”3 In this regard, she conceded during cross-examination that she was able to use email and company phones in April and June. Nor do I accept Pecor’s testimony that he did not notify the Union of the raise and rescission because of lack of knowledge: “I was not even talking to my client at[sic] that period of time. I couldn’t even talk—they were unreachable.”374 Had that been the case, I cannot see how he could have been able to effective- ly represent the Respondent in conducting the negotiations with the Union that took place. Hiring of Noncertified Aides Prior to the pandemic, the Respondent was permitted by the Center for Medicare and Medicaid Services (CMS) to hire non- certified aides. They had to be fully certified (completed all classes/exams) within 4 months of their hire to continue work- ing. They were also required to go to offsite training during their employment, as opposed to in-house training by the em- ployer. In response to the pandemic, the CMS issued a memorandum on April 8, 2020, waiving those requirements. (R. Exh. 12). The waiver ended on May 10, 2021. (R. Exh. 14.) Respondent’s Exhibit 13 is a list of the 27 noncertified aides whom the Respondent hired after the issuance of the CMS memorandum (not all showed up for work). Twenty-four were hired in April, one in July, and one in August. The last noncer- tified aide was terminated on November 2. Cervi testified that these noncertified aides performed the same function as CNAs, were scheduled according to their preferences, and took no hours or overtime from CNAs. They were paid $2/hour less than CNAs but did receive the Respond- ent’s $2/hour pandemic pay. Drayton also testified that no noncertified aides were used in lieu of CNAs and that no CNAs’ requests for overtime were denied during the pandemic. The Respondent never directly notified the Union of the use of these noncertified aides. Rather, Alcoff first learned about them through Pecor’s August 4 email response to the Union’s 3 Tr. 453. 4 Tr. 972. METRO MAN IV, LLC D/B/A FOUNTAIN BLEU HEALTH 17 information request for a seniority list of maintenance unit em- ployees.385 The list included about 10–15 individuals working in a job title called “covid noncertified nurse’s aides” and a few with the title “nurse tech.” (R. Exh. 3.) Negotiations At all times, Pecor has been the Company’s chief negotiator. Walker was the Union’s chief negotiator until June 2020, when Alcoff assumed that role. Separate bargaining sessions, con- ducted remotely, have been held for the two units. On August 28, 2019, the Company proposed an article enti- tled “role of the nurse” (GC Exh. 12 at 14–15), taking the lan- guage that I cited from Section 18.1 of the terms and conditions of employment of the “charge nurse” and applying it to “every [n]urse.” The Union rejected the proposal, disagreeing with Pecor’s assertion that the LPNs had such authority. At negotiations for both units on June 10, the Union provid- ed an economic proposal, as well as a separate pandemic pro- posal that included a $4/hour increase plus premium or hazard pay if assigned to a COVID unit. As stated earlier, Pecor said nothing about the April pandemic incentive increase. In negotiations for the LPN unit on August 4, the first Alcoff attended, Pecor presented the article entitled role of the nurse, discussed above, which the Union again rejected, saying that it did not reflect the LPNs’ authority. Pecor stated that it was an initial term or condition of employment for the Respondent as a new employer. The parties have never reached agreement on this article. In negotiations for the service unit that afternoon, Alcoff raised the Company’s conferral and rescission of the pandemic hazard pay increase, about which he had just learned. Pecor responded that the Respondent was not obliged to provide the Union with notice or an opportunity to bargain over them. On August 7, the Union issued a 10-day strike notice, after which proposals were exchanged “off the record” under the auspices of state mediators; any agreements that the parties reached were not considered to be part of formal negotiations or binding. The strike was later called off after the Union agreed to the Company’s first-year wage proposal. Negotiations continue to the present. Department of Nursing and Role of LPNs The General Counsel’s main witness on the role and authori- ty of LPNs was Metcalf, who has been an LPN since April 2018. Regarding specific disciplines in the record, the General Counsel called LPN Hightower and former LPN Harris. Administrator Cervi, DON McFadden, UM Rock, and LPN Majors offered general testimony on the subject for the Re- spondent. Former DON Nugal testified about a particular dis- cipline in which she was involved, and former Scheduler Dray- ton about her role in scheduling CNAs. DON McFadden holds the highest-ranking position in the nursing hierarchy. Under her are two UMs, Rock and Mylene Langcauon; and an admissions nurse manager. Nurses (RNs and LPNs), and then CNAs report to the UMs. Two LPNs are normally assigned to a unit. 5 Pecor had earlier emailed the list, on June 11, but Alcoff testified that he did not see it. I will consider June 11 the operative date. The DON and the admissions nurse manager have their own offices; the UMs share one. Nurses work at nurses’ stations at the units and record patient care on electronic tablets. They also have keys and access to medical storage rooms and sensi- tive materials that CNAs and other staff members do not. There are three shifts, starting at 6 a.m., 2 p.m., and 10 p.m. (the midnight shift), respectively. In the mornings, the RNs and CNAs report at 6 o’clock, and the UMs come in at 8 or 8:30. Majors is an LPN on the 6 a.m. shift. I credit her uncontro- verted testimony as follows. Cervi walks the building after she arrives to see if anyone needs anything. The DON walks around the units in the morning and is available in her office if the LPNs really need her during the day. UM Langcauon comes to the unit when she arrives and asks Majors what is going on; she returns at between 11:30 a.m. and noon to make certain that everything is running properly. An RN is on duty on the night shift. The UMs are some- times present on holidays or are on-call. According to Cervi, management has 24/7 responsibility and is on call at all times. Assignment and Direction of CNAs The testimony of Metcalf, who works under Rock; Rock; Drayton; and Majors was for the most part quite consistent on this subject. They all appeared candid in their recitation of facts, and I find the following based on a composite of their accounts. Arrean Davis, the scheduler, prepares monthly schedules, as- signs LPNs and CNAs to specific units, and puts out daily sign- in sheets in each unit stating who is working. See GC Exh. 20, an example. Some CNAs generally stay assigned to the same unit; others “float” and go where needed. The first arriving LPN decides which patients a CNA will service in the unit to which the scheduler has assigned him or her. (Ibid., which Metcalf filled out.) In assigning CNAs rooms, LPNs generally go in room number order. All CNAs do the same work and are interchangeable. On average, three or four CNAs work with an LPN. According to Rock, the practice is for nurses to do a resident count and then try to give the CNAs an equal number of residents to service, and Metcalf and Majors try to give CNAs an equal amount of work when as- signing them to particular rooms. According to both Metcalf and Majors, the general practice is that CNAs stay with the same room assignments (and residents with whom they are familiar) unless overall staffing needs dictate otherwise. If that occurs, the LPN can ask a CNA to go another unit. See R. Exh. 21, the assignment sheet that Majors wrote on March 30, 2021, showing that she pulled an LPN from another unit. Moreover, Respondent’s Exhibit 22, an assignment sheet that Majors wrote on April 20, 2021, shows that she changed CNA room assignments on her unit that day because a patient had a dispute with the first CNA. If Metcalf needs to reassign a CNA to another unit because of a no-show there, Metcalf can request but not require him or her to go. If the CNA balks, Metcalf then has to go to UM Rock. Similarly, Majors testified about an incident more than a year ago in which a CNA “blatantly refused” to go to another unit and instead walked off to have a cigarette. Majors filled out a disciplinary form and gave it to Rock to give to the DON. 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD She had no further involvement in the discipline. If Majors is short of CNAs, she can call but not require them to come in. Rock herself fills in as a CNA when needed. There is no evidence that assignments of CNAs to particular units or patients have any impact on their pay, promotions, or other benefits or terms and conditions of employment. When CNAs and other employees have had problems punch- ing in or out or have forgotten to do so, they submit a time clock exception request form to the LPN, who signs approval as the supervisor and then transmits it to the DON or payroll for final approval. See GC Exh. 28, a composite exhibit; see also R. Exh. 23. There is no evidence that Metcalf or other LPNs have denied any such requests before forwarding them on. Metcalf testified that she has never approved overtime, and Drayton testified that this is the scheduler’s responsibility. No other witnesses testified to the contrary, and I credit them. Discipline The Respondent has a progressive discipline policy—verbal warning, first written warning, second written warning, and termination. The steps are automatic, with human resources (HR) being consulted to determine the proper step. There are no written policies concerning when and how an LPN should issue discipline to a CNA or their being subject to discipline if the CNAs who work under them do not properly perform patient care. The Respondents’ witnesses were inconsistent regarding whether and when an LPN is required to write up a CNA. Cer- vi initially testified that nurses are not required to fill out disci- plinary reports when a CNA does not perform his or her duties, and do not always do so, and that Hightower was not required to discipline B.F.396 for violating rules of patient care (de- scribed below). However, she later testified that nurses are subject to discipline for the derelictions of the CNAs who re- port to them and are required to write up CNAs for not per- forming their duties. This comported with Rock’s testimony that in situations involving patient care, all disciplines are put in writing. However, LPN Majors testified that she does not al- ways write up a CNA for refusing to obey her direct order but instead sometimes engages in a “coaching.” Management has told LPNs at nursing staff meetings that LPNs are responsible if patients do not receive proper care from CNAs, and may be disciplined for such. The only evi- dence of such is General Counsel’s Exhibit 21, a verbal warn- ing which Metcalf received on June 27, 2019. The record contains several disciplines of CNAs in which Hightower was involved. At the outset, I note the uncertainty of her status as a manager or floor LPN during the times they were issued. She testified that after she started in April 2019, she was temporarily designated “shift supervisor” or “shift manager” and served in that role until early 2020. Moreover, LPN Harris testified that Hightower had an office, was notated on the schedule as a supervisor, and was introduced as a super- visor. No witness of the Respondent offered any testimony clarifying whether Hightower was in fact a unit LPN or an act- 6 Initials will be used for CNAs who were disciplined, in the interest of protecting their privacy. ing UM. Rock and Metcalf testified consistently and credibly about Respondent’s Exhibit 10, a disciplinary report for J.B. in May 2021. When Rock was making her rounds and checking on patients, one of them reported that she had still not been given a shower. Rock approached Metcalf and asked who the CNA was, and Metcalf said she would find him and figure out what was going on. Rock told Metcalf that it was her responsibility to make certain that the CNAs fulfilled their tasks and to write it up. After Metcalf wrote up the discipline (see GC Exh. 19), Rock herself conducted an investigation, wrote in verbal warn- ing, served it on J.B., and gave it to HR. Metcalf was not pre- sent when J.B. received it. Rock’s description of her role was consistent with her testi- mony that she normally investigates a discipline put forward by a nurse and will talk to all sides before issuing it. All discipli- nary reports are placed in the employees’ personnel files. Respondent’s Exhibits 15 and 16 concern B.F., who received a second written warning on July 28, 2019, and was terminated on August 15, 2019. As to the written warning, both Hightower and Harris testi- fied that Harris had an issue with B.F. not providing a patient with lunch, Harris brought it to Hightower’s attention, and Hightower instructed her how to write up a description of the incident. Harris signed as supervisor but clearly at Hightower’s direction. Hightower was there when it was presented to B.F. and signed as a witness. On the other hand, Cervi testified that Harris came to the DON’s office with the discipline report be- cause Harris felt intimidated by B.F. and wanted help. They called B.F. in and served him with it. Harris signed as supervi- sor, but again, it would have been at management’s direction. Regarding the termination, Hightower testified that she was notified by another nurse that a patient had complained that B.F. had not provided her assistance getting into bed. Hightow- er talked to the patient and took the patient complaint form to Nugal, who said she would talk to the patient. Nugal did not ask her to do anything else. Hightower’s next involvement was when she was called to a meeting in Cervi’s office on August 15, where she saw Respondent’s Exhibit 16 for the first time. She had no involvement in writing the description of the inci- dent. Present were B.F., Cervi, Nugal, and an HR representa- tive. Someone other than Hightower addressed B.F. Nugal di- rected her to sign as the supervisor. Hightower’s description of what occurred comported with her testimony that any write-up by a nurse has to be reviewed by the DON to ensure that there is a valid reason for the discipline. Nugal did not rebut Hightower’s version of their interactions, and from that I draw an adverse inference. See Daikichi Corp., 335 NLRB 622, 622 (2001); Colorflow Decorator Products, 228 NLRB 408, 410 (1977), enfd. mem. 583 F.2d 1288 (5th Cir. 1978). Moreover, Cervi’s testimony was truncated and was not inconsistent with Hightower’s testimony that Nugal directed her to sign the disciplinary report. I therefore credit Hightower’s account of the incident. Nugal testified regarding Respondent’s Exhibit 19, a verbal warning report issued to S.S. in May 2019. Nugal’s testimony was directly contradictory, and I find it unreliable. Thus, she METRO MAN IV, LLC D/B/A FOUNTAIN BLEU HEALTH 19 first testified that Hightower provided her with the write-up and they discussed it before calling in S.S. However, she first testi- fied on cross-examination by the Union’s counsel that High- tower talked with her about the write-up before bringing it to her—but then testified that she had no discussion with High- tower before S.S. was called to the meeting and issued the dis- cipline. Moreover, at another point, Nugal testified that High- tower presented S.S. the discipline before Nugal questioned S.S. about what had happened—the reverse of what would have been a logical sequence of events. Finally, Nugal appeared ill at ease and gave answers that were generalized and lacked de- tail. I therefore credit Hightower’s testimony that she wrote noth- ing contained in the document, that her signature does not ap- pear therein, and that she had nothing to do with the discipline. The Respondent’s counsel conceded that the Company sub- mitted no disciplinary forms that were signed only by an LPN and not also by someone in management. Analysis and Conclusions Unilateral Wage Increase/Rescission and Use of NCAs An employer violates Section 8(a)(5) and (1) of the Act by unilaterally making substantial changes on subjects of mandato- ry bargaining; to wit, employees’ wages, hours, or other terms and conditions of employment, without first affording notice and a meaningful opportunity to bargain to the union represent- ing the employees. NLRB v. Katz, 369 U.S. 736 (1962); United Cerebral Palsy of New York City, 347 NLRB 603, 608 (2006). Changes that improve employee conditions are still subject to the same bargaining obligations as adverse changes. Wightman Center, 301 NLRB 573, 575 (1991); ITO Corporation of Rhode Island, Inc., 246 NLRB 810, 813 (1979). Unilaterally conferring pay increases to unit employees and hiring temporary employees to perform bargaining unit work are violations of Section 8(a)(5) and (1). Alamo Cement Co., 277 NLRB 1031 (1985). The Respondent has raised the “economic exigency excep- tion” to the normal rule that an employer must bargain with the union prior to laying off employees for economic reasons or taking other unilateral actions. (R. Br. 6, et. seq.) The Board has consistently maintained a narrow view of this exception, limiting it to “‘extraordinary events which are an unforeseen occurrence, having a major economic effect requiring the com- pany to take immediate action.’” Seaport Printing & Ad Spe- cialties, Inc., 351 NLRB 1269, 1270 (2007), enfd. 589 F.3d 812 (5th Cir. 2009, citing RBE Electronics of S.D., 320 NLRB 80, 81 (1995) (citations omitted). The employer bears a heavy burden. 320 NLRB at 81. It is true that the Respondent faced a crisis in staffing and operations after the onset of the pandemic. However, the Re- spondent has not demonstrated that there was an exigent need to announce and implement the $2/hour pandemic pay increase on April 8 or to rescind it on June 16 on the particular dates that such actions were taken, without first having notified the Un- ion. The Respondent has not averred as an affirmative defense that it had an established past practice of giving emergency raises. See Katz, above at 746; Golden Crest Healthcare Cen- ter, 335 NLRB 635, 636 (2001), enfd. 317 F.3d 316 (D.C. Cir. 2003). Nor, after the CMS issued a waiver of the normal require- ments for nurse’s aides, allowing employers to use them for more than 4 months, was there any reason the Respondent could not have notified the Union that it was planning to imme- diately exercise its option of using noncertified aides accord- ingly. I have to assume that the hiring procedures for the non- certified aides in April 2020 had to entail a series of steps and was not a 1-day process. The Respondent thus had an adequate opportunity to notify the Union at some point prior to their actually beginning work at the facility. The Respondent contends (R. Br. 18, 22 et. seq.) that it en- gaged in meaningful bargaining with the Union on pandemic premium pay and the utilization of noncertified aides, but any such bargaining was after the fact. Indeed, the Union did not learn until August 4 of the premi- um pay conferred in April and rescinded in June, and this was through unit employees and not directly from the Respondent. Thus, the Respondent never informed the Union of these changes. Similarly, the Respondent never directly notified the Union of the hiring of noncertified aides starting in April. Rather, the Union received only implicit notice from the Respondent’s response on June 11 to a union information request for a senior- ity list of service unit employees for bargaining purposes. Of most significance, there is no question that the Respond- ent’s internet and phone communications were operating at all times during the pandemic; indeed, there were email exchanges and virtual negotiations between the Respondent and the Union throughout 2020. The Respondent also argues (R. Br. 13) that the use of the noncertified aides was merely a continuation of past practice and not a material change. However, as opposed to previous noncertified aides, they were hired without a 4-month limitation (and with different training requirements). The Respondent points out (ibid at 14) that it stopped using the last noncertified aide at the end of October, only 2 additional months beyond the 4-month limit. However, the Respondent had no way of know- ing at the time it hired the noncertified aides starting in April what the duration of their employment would be. It thus was in no position to provide the Union with any fixed time frame for their utilization. The Respondent’s witnesses asserted that no CNAs lost hours, regular or overtime, as a result of the Respondent’s utili- zation of the noncertified aides, but this cannot be definitively ascertained without a thorough review of the Respondent’s payroll records, a compliance matter. I therefore conclude that the Respondent violated Section 8(a)(5) and (1) when it unilaterally conferred and then rescind- ed the $2/hour pandemic pay raise, and when it hired the non- certified aides at issue. Supervisory Status of LPNs Legal Framework Section 2(11) defines “supervisor” as any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD adjust their grievances, or effectively to recommend such ac- tion, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature but re- quires the use of independent judgment. The types of supervisory authority are listed in the disjunc- tive, and possession of any one of them suffices to confer su- pervisory authority. NLRB v. Kentucky River Community Care, 532 U.S. 706, 713 (2001); Queen Mary, 317 NLRB 1303, 1303 (1995), enfd. sub nom. NLRB v. RMS Foundation, Inc., 113 F.3d 1242 (9th Cir. 1997); NLRB v. Quinnipac College, 256 F.3d 68, 74 (2001). Possession of supervisory authority is enough even if not exercised. Fred Meyer Alaska, Inc., 334 NLRB 646, 649 fn. 8 (2001); Mid Allegheny Corp., 233 NLRB 1463, 1464 (1977). To be classified a supervisor, an individual must use inde- pendent judgement in such a way as to affect employees’ terms and conditions of employment. Oakwood Healthcare, Inc., 348 NLRB 686, 688 (2006); Children’s Farm Home, 324 NLRB 61 (1997). “Independent judgement” will not be found where a result “is dictated or controlled by detailed instructions . . . .” Oakwood Healthcare, ibid; see also Brusco Tug &Barge, Inc., 359 NLRB 486, 490 (2012). Likewise, “independent judge- ment” does not include recommendations to a decision maker who conducts independent investigations of the events and fails to follow the recommendations. Children’s Farm Home, 324 NLRB 61 (1997). In Kentucky River, above at 711–712, the Court upheld the Board’s rule that the burden of establishing supervisory status lies with the party asserting it. The party must establish such status by a preponderance of the evidence. Dean & Deluca New York, Inc., 338 NLRB 1046, 1047 (2003); Bethany Medi- cal Center, 328 NLRB 1094, 1103 (1999). The “Board has exercised caution ‘not to construe superviso- ry status too broadly because the employee who is deemed a supervisor is denied rights which the Act is intended to pro- tect.” Oakwood Healthcare, above at 688. Thus, the Act pro- tects “straw bosses, lead men, and set up men” even though they perform “minor supervisory duties.” Ibid, quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 280–281(1974); see also General Security Services Corp., 326 NLRB 312, 312 (1998). Statutory status is not proven where the record evidence “is in conflict or otherwise inconclusive.” Republican Co., 361 NLRB 93, 97 (2014), citing Phelps Community Medical Cen- ter, 295 NLRB 486, 490 (1989); Golden Crest Healthcare Cen- ter, 348 NLRB 727, 731 (2006). Absent evidence that an individual possesses any one of the statutory indicia, the Board looks to secondary indicia to de- termine supervisory status; however, secondary indicia are insufficient by themselves to establish supervisory authority. Veolia Transportation Services, Inc., 363 NLRB 1879 (2016); Sam’s Club, 349 NLRB 1007, 1014 (2007); Ken-Crest Ser- vices, 335 NLRB 777, 779 (2001). LPNs do not hire, fire, issue evaluations, or approve over- time. Following are the indicia of supervisory authority that the Respondent contends they possess. Assignment of Work The analysis here is whether the LPNs’ role in assignment of CNAs is of a routine or clerical nature or requires the use of independent judgment. To exercise “independent judgment” in making assignments and directing employees, an individual must act or effectively recommend action “free of the control of others,” using a degree of discretion rising above “the merely routine or clerical.” Oakwood Healthcare, above at 692–693; see also Brusco Tug and Barge, Inc., 359 NLRB 486, 490 (2012). Determining what rises to the level of 2(11) authority can be difficult. As the Court recognized in NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 713 (2001), “[T]he statutory term ‘independent judgment’ is ambiguous with re- spect to the degree of discretion required for supervisory status . . . . Many nominally supervisory functions may be performed without the ‘exercis[e of] such a degree of . . . judgment or discretion . . . as would warrant a finding’ of supervisory status under the Act.” (citations omitted). The LPNs play no part in deciding which CNAs will work a particular day or the unit to which they are initially signed. Rather, they assign CNAs to particular rooms on their unit. In doing so, their primary focus is on equalizing the work among the CNAs, who are normally assigned to the same rooms and patients. None of the CNAs have any special training or educa- tion that makes them uniquely qualified, and they are inter- changeable. In this regard, an LPN can request (but not re- quire) a CNA to move to a unit that is understaffed. In sum, none of these assignments require independent judgment because they are routine in nature. See Mercy Gen- eral Health Partners Amicare Home Care, 2017 W 5034114 (2017) (assignments to home healthcare aides and LPNs were routine and not based on significant training, education, or par- ticular expertise); Panaro & Grimes, 321 NLRB 811, 811 (1996). Moreover, temporary transfers of CNAs to ensure ade- quate staffing levels do not show requisite independent judg- ment. See Frenchtown Acquisition Co., Inc., v. NLRB, 683 F.3d 298 (6th Cir. 2012). Finally, nothing suggests that the assignments that the LPNs make have any bearing on CNAs’ opportunities to be considered for future promotions or re- wards. Contrast, Oakwood Healthcare, above at 689. The Respondent cites (R. Br. 38) Oakwood Healthcare, above at 695, wherein the Board stated that in the health care setting, “assign” encompasses the responsibility to assign nurs- es and aides to particular patients, and that decisions affecting place, time or overall tasks can be a supervisory function, in- cluding “plum or bum” assignments. However, whereas as- signments in that case were on a regular basis, here they are made daily, CNAs are can be transferred during the day to oth- er units as needed, and all CNAs are able to service all resi- dents. Accordingly, I find that the LPNs assignment of work to CNAs is of a routine nature not entailing the level of discretion rising to “independent judgment.” I note that the LPNs’ approval of employees’ requests for time clock errors is ministerial and routine, there being no evi- dence that any such requests are ever denied. In any event, the LPNs turn in those requests to the DON or HR for final ap- proval. METRO MAN IV, LLC D/B/A FOUNTAIN BLEU HEALTH 21 Direction of Work During the day, various managers, including the administra- tor, the DON, and UMs periodically come on to the units to monitor how LPNs and CNAs are providing patient care. The DON is available in her office if LPNs need her assistance. There is an RN in charge on the night shift, and managers are on call all the time. Thus, higher authority is normally accessi- ble, either on or off site. As stated above, LPNs can ask CNAs to go to other units but lack the independent authority to compel them; if they refuse, the LPNs must seek management’s intercession. CNAs who refuse to obey the orders of LPNs are not necessarily issued any formal discipline. As previously stated with regard to assign- ments, all CNAs perform the same patient care functions, which are routine in nature and do not require any special train- ing or expertise, making CNAs interchangeable. Management has told LPNs at nursing staff meetings that LPNs are responsible if patients do not receive proper care from CNAs, and may be disciplined for such. Despite this, the record contains only one discipline issued to an LPN for this reason—a verbal warning that Metcalf receive in 2019. I can- not believe that in recent years that was the only time manage- ment concluded that an LPN had not properly overseen CNAs. The lack of evidence of other disciplines to LPNS for such leads to the conclusion that, regardless of the stated policy, there is no practice of holding LPNs accountable for the short- comings of CNAs. Moreover, there is no evidence that Metcalf suffered any actual or potential adverse consequences as a re- sult of the verbal warning, either pecuniary or otherwise. Ac- cordingly, the “responsible” requirement under Section 2(11) of the Act is lacking. See Springfield Terrace, Ltd., 355 NLRB 937 (2010); Golden Crest Healthcare, above at 731; Oakwood Healthcare, above at 691–692; NLRB v. Saint Mary Home, 358 Fed.Appx. 255, 255 (2nd Cir. 2009). In these circumstances, I find that the LPNs do not responsi- bly direct employees within the meaning of Section 2(11). Discipline There are no written policies concerning when and how an LPN should issue discipline to a CNA, and testimony from management witnesses on the subject was contradictory. Because Hightower may have been an acting UM when she wrote up disciplines in the record, I am unable to conclude that she was a unit LPN on those occasions. Assuming arguendo that she was a unit LPN, I will address those disciplines. (1) Written warning to B.F. According to Cervi, Harris brought the warning to her and the DON and said she needed help, and they were the ones who actually issued it to the em- ployee. (2) Termination of B.F. Crediting Hightower’s unrebutted testimony, she did not write the description of the incident but rather took the patient complaint form to Nugal, who said she would talk to the patient. Hightower’s next involvement was when she was called to Cervi’s office, when she saw the writ- ten discipline for the first time, and she signed the discipline as a supervisor at Nugal’s direction and in Cervi’s presence. (3) Verbal warning to S.S. Crediting Hightower over Nugal, Hightower wrote nothing contained in the document, her sig- nature does not appear therein, and she had nothing to do with the discipline. Regarding the disciplinary report for J.B., Rock received a patient complaint when she was making her rounds and check- ing on patients, instructed Metcalf to write it up, conducted an investigation, and presented the discipline to J.B. Metcalf was not present either during Rock’s investigation or its service on the employee. Rock normally investigates a discipline put forth by a nurse and talks to all sides before issuing it. Based on the above, I conclude that LPNs may be required to bring incidents of CNAs’ dereliction of duty to management’s attention and may write up the descriptions of the incidents, but they are not the final decision makers on whether disciplines are effectuated. Particularly noteworthy, management inde- pendently investigates the underlying incidents and handles the issuance of the disciplines to the employees. To confer super- visory status based on authority to discipline, the exercise of disciplinary authority must lead to personnel action without independent investigation by upper management. The Republi- can Co., 361 NLRB 93, 97 (2014), citing Starwood Hotels & Resorts Worldwide, Inc., 350 NLRB 1114, 1116 (2007). Sig- nificantly, too, the Respondent produced no disciplinary forms signed only by an LPN and not also by someone in manage- ment. The mere factual reporting of oral reprimands and the issuing of written warnings that do not automatically affect job status or tenure do not constitute supervisory authority. Ohio Passa- vant Health Center, 284 NLRB 887, 889 (1987). The Re- spondent has not shown that the warnings LPNs initiated “au- tomatically affect[ed] job status or tenure” of CNAs, absent management’s approval. Ohio Masonic Home, Inc., 295 NLRB 390, 393–394 (1989), quoted in The Republican Co., above at 99. In sum, in the area of discipline, LPNs exercise a primarily reporting role and lack independent authority to issue disci- pline. See The Republican Co., above at 99; Ohio Masonic Home, above at 390. Accordingly, I conclude that the LPNs do not possess inde- pendent authority to discipline CNAs within the meaning of Section 2(11). Conclusion As stated earlier, the burden of establishing supervisory sta- tus lies with the party asserting it, and the Board is cautious not to construe supervisory status too broadly and exclude those performing “minor supervisory duties.” The Respondent has failed to meet its burden. As the Respondent correctly states (R. Br. 50), any second- ary indicia of supervisory authority is insufficient to establish Section 2(11) status in the absence of the existence of any pri- mary indicia. Having found no such primary indicia, I need not address any secondary indicia. I therefore conclude that the LPNs are employees within the meaning of the Act. Pecor’s Threat to Metcalf on May 25 The General Counsel amended the complaint at trial to assert 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that Attorney Pecor, on May 25, 2021, violated Section 8(a)(1) by threatening Metcalf with unspecified discipline for attending the hearing as a witness for the General Counsel. Ideally, Pecor would have assured the General Counsel and the Union that Metcalf would suffer no adverse consequences as a result of her testifying at the hearing, which he did not. Attorney Champa asked Pecor to ensure that Metcalf would not be disciplined for continuing to testify past her scheduled lunch break at work. He replied, “Well, she won’t be compen- sated and to the extent that she didn’t get approval for it, I can’t speak to that.” (emphasis added).407 He subsequently repeated that he could not speak to that “right now” because he did not know what was going on at the facility, and then spoke again about her not getting paid for her time as a witness. An em- ployer is not required to pay a witness against it (see Gen. Die Casters, Inc., 358 NLRB 742, 755 (2012)), and the General Counsel does not contend that Pecor’s statements about com- pensation were violations. “The Board’s well-established test for interference, restraint, and coercion under Section 8(a)(1) is an objective one and de- pends on ‘whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act.”’ ITT Federal Services Corp., 335 NLRB 998, 1002 (2001) (quoting American Freightways Co., 124 NLRB 146, 147 (1959)). Applying this test, the Board has held that an employer violates Section 8(a)(1) by threatening employees with unspecified reprisals for engaging in protected activity. See, e.g., Alaska Ship & Drydock, 340 NLRB 874, 878 (2003). Employee testimony at an NLRB hearing is a protected activity. See J. P. Stevens & Co., 167 NLRB 266 (1967). Pecor’s statements were made in my presence and not by a high-level company official in a coercive, closed-door setting. Contrast, Jo-Del, Inc., 326 NLRB 296, 298 (1998). He did not state or even imply that she would receive any discipline but instead simply replied that he did not know. He said nothing further on the subject but instead resumed the matter of her not getting paid for her time as a witness. In these circumstances, I find that his statements were not reasonably coercive, and I dismiss the allegation. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By the following conduct, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act and violated Section 8(a)(5) and (1) of the Act: (a) Conferred a wage increase on employees on April 8, 2020, without providing the Union notice and an opportunity to bargain. (b) Rescinded that wage increase on June 16, 2020, without providing the Union notice and an opportunity to bargain. 7 Tr. 327. (c) Employed noncertified nurse’s aides to perform unit work in and after April 2020, without providing the Union notice and an opportunity to bargain. REMEDY Because I have found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The General Counsel seeks an order that the Respondent, upon the Union’s request, rescind the above unilateral changes. However, there is nothing for the Respondent to rescind. The Respondent shall make whole unit employees for any loss of wages or other benefits suffered as a result of the unilat- eral changes in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In addition, the Re- spondent shall file with the Regional Director for Region 7 copies of any corresponding W-2 forms reflecting backpay awards, in accordance with Cascades Containerboard Packag- ing-Niagara, 370 NLRB No. 76 (2021). For all backpay awards received by unit employees, the Respondent shall compensate the employees for any adverse tax consequences associated with receiving lump-sum backpay awards and file with the Regional Director for Region 7 a report allocating the backpay award to the appropriate calendar year. See AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016). The General Counsel also seeks a reinstatement of the wage increase until the parties reach a negotiated agreement with respect to that change (GC Br. 42), a position echoed by the Union (U. Br. 26). Neither cites any precedent in support of ordering such a remedy. I deem it inappropriate to require the Respondent to restore an unlawfully granted wage increase in the absence of evidence that either its conferral or its rescission was motivated by antiunion considerations. I therefore will not include this in my order. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended8 ORDER The Respondent, Metro Man IV, LLC d/b/a Fountain Bleu Health and Rehabilitation Center, Inc., Livonia, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Conferring or rescinding wage increases, or hiring em- ployees to perform unit work, without providing the Union notice and an opportunity to bargain. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- 8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes. METRO MAN IV, LLC D/B/A FOUNTAIN BLEU HEALTH 23 tuate the policies of the Act. (a) Provide the Union with notice and an opportunity to bar- gain before implementing any changes in wages, hours, and working conditions. (b) Make whole employees for any loss of earnings or other benefits they suffered in the manner set out above in the Reme- dy section. (c) Within 14 days after service by the Region, post at its fa- cility in Livonia, Michigan, copies of the attached notice marked “Appendix.”419 Copies of the notice, on forms provid- ed by the Regional Director for Region 7, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in con- spicuous places including all places where notices to employees are customarily posted. The Respondent shall take reasonable steps to ensure that the notices are not altered, defaced, or cov- ered by any other material. If during the pendency of these proceedings, the Respondent has gone out of business or closed the Livonia, Michigan facility, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since April 8, 2020. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. The complaint is dismissed insofar as it alleges violations of the Act that I have not specifically found. Dated, Washington, D.C. August 31, 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 (NLRB) 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 benefit and protection Choose not to engage in any of these protected activi- ties. SEIU Healthcare Michigan (the Union) represents our Li- censed Practical Nurses, Certified Nurse’s Aides (CNAs), and other classifications of our employees. WE WILL NOT give you wage increases or rescind those wage 9 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” increases without providing the Union notice and an opportuni- ty to bargain. WE WILL NOT hire employees to perform work that employ- ees represented by the Union perform without providing the Union notice and an opportunity to bargain. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights listed above. WE WILL provide the Union with notice and an opportunity to bargain before we implement any future changes in your wag- es, hours, and working conditions. WE WILL make our CNAs whole for any loss of earning or other benefits they suffered as a result of our employing non- certified nurse’s aides to perform their duties. METRO MAN IV, LLC D/B/A FOUNTAIN BLEU HEALTH AND REHABILITATION CENTER, INC. The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/07-CA-264407 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. 371 NLRB No. 144