Castle Hill Health Center

National Labor Relations Board - Board Decisions

Sep 28, 2010

355 N.L.R.B. 1156 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 196
1156
Castle Hill Health Care Center and SEIU 1199 New
Jersey Health Care Union. Cases 22–CA–28152
and 22–CA–28548
September 28, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
On December 14, 2009, Administrative Law Judge
Mindy E. Landow issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and the
General Counsel filed an answering brief. The General
Counsel also filed cross-exceptions and a supporting
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, findings,1 and conclusions and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Castle Hill Health Care Cen-
ter, Union City, New Jersey, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(a).
“(a) On request of the Union, restore, honor, and con-
tinue the terms and conditions of employment set forth in
the collective-bargaining agreement with the Union that
expired on July 24, 2007, until a new contract is con-
cluded or good-faith bargaining leads to an impasse, or
the Union agrees to changes.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In her remedy, the judge found that the Respondent should restore
the terms and conditions of the parties’ collective-bargaining agreement
until the parties bargained to a valid impasse or the Union agreed to the
Respondent’s changes, but that the Respondent was not required to
cancel any unilateral changes that benefited unit employees “without a
request from the Union.” See Fresno Bee, 339 NLRB 1214, 1216 fn. 6
(2003). The judge, however, did not include this relevant remedial
language in her recommended Order and notice. We will modify the
judge’s recommended Order and notice to correct this error.
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 fail to provide to the Union, or unneces-
sarily delay in providing information that is relevant and
necessary to the Union’s performance of its duties as the
collective-bargaining representative of the employees in
the following unit:

All full-time and regular part-time certified nurses
aides, recreation employees, dietary and housekeeping
employees employed by Castle Hill Health Care Center
at its Union City, New Jersey facility.

WE WILL NOT fail to comply with the terms and condi-
tions of employment that are set forth in the collective-
bargaining agreement with the Union that expired on
July 24, 2007, until a new contract is concluded or good-
faith bargaining leads to an impasse, or the Union agrees
to changes.
WE WILL NOT implement terms and conditions of em-
ployment that are different from those in the collective-
bargaining agreement that expired on July 24, 2007, until
a new contract is concluded or good-faith bargaining
leads to a valid impasse, or the Union agrees to changes.
WE WILL NOT fail and refuse to remit contributions
owed to the SEIU National Industry Pension Fund.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request of the Union, restore, honor, and
continue your terms and conditions of employment set
forth in the collective-bargaining agreement with the
Union that expired on July 24, 2007, until a new contract
is concluded or good-faith bargaining leads to an im-
passe, or the Union agrees to changes.
CASTLE HILL HEALTH CARE CENTER 1157
WE WILL make employees and former employees
whole, with interest, for any and all loss of wages and
other benefits incurred as a result of our unlawful altera-
tion and discontinuance of contractual benefits.
WE WILL make contributions, including any additional
amounts due, to any fund established by the collective-
bargaining agreement that was in existence on July 24,
2007, and which we would have paid but for our unlaw-
ful unilateral changes.

CASTLE HILL HEALTH CARE CENTER

Saulo Santiago, Esq., for the General Counsel.
Alex Tovitz, Esq. and David F. Jasinski, Esq. (Jasinski, P.C.),
of Newark, New Jersey, for the Respondent.
Ellen Dichner, Esq. (Gladstein, Reif & Meginniss, LLP), of
New York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MINDY E. LANDOW, Administrative Law Judge. This case
stems from charges in Cases 22–CA–28152 and 22–CA–
28548, filed on December 5, 2007, and September 8, 2008,
respectively, by SEIU 1199 New Jersey Health Care Union
(1199NJ or the Union) against Castle Hill Health Care Center
(Castle Hill, the Employer, or Respondent). On November 25,
2008, the Regional Director for Region 22 issued an order con-
solidating cases, consolidated second amended complaint and
notice of hearing (the complaint) alleging that Respondent has
engaged in unfair labor practices in violation of Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act). The
complaint alleges, in essence, that Respondent unlawfully
failed to and delayed in providing information to the Union and
that it prematurely declared a bargaining impasse and unilater-
ally implemented terms and conditions of employment for em-
ployees represented by the Union. The Respondent filed an
answer denying the material allegations of the complaint and
raising certain affirmative defenses, as will be discussed in
further detail below.
A hearing in this matter was held before me on April 20
through 23, 28–30, and May 26, 2009, in Newark, New Jersey.
On May 22, 2009, based upon an amended charge filed in Case
22–CA–28152, counsel for the General Counsel moved to
amend the complaint to further allege that Respondent unilater-
ally failed and refused to make contractually required pension
fund contributions, and I granted that motion. Respondent de-
nied the material allegations of the amendment to the complaint
and argued that they do not relate back to the original charge
and are timebarred by Section 10(b) of the National Labor Re-
lations Act.
On the entire record, including my observation of the de-
meanor of the witnesses,1 and after considering the briefs filed

1 Credibility resolutions have been made based upon a review of the
entire record and all exhibits in this proceeding as well as the demeanor
of the witnesses. In addition, the inherent probability of the testimony
has been utilized to assess credibility. Where there is an apparent con-
by the General Counsel, Respondent, and the Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New Jersey corporation, with a facility lo-
cated in Union City, New Jersey, is engaged in the operation of
a nursing home and rehabilitation center. During the 12-month
period preceding the issuance of the complaint, the Respondent
derived gross revenues in excess of $100,000 and purchased
goods valued in excess of $5000 directly from points outside
the State of New Jersey. Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
As noted above, Respondent operates a long-term health care
facility in Union City, New Jersey. It is owned by the Omni
Company (Omni), a company that manages a number of
nursing homes in New Jersey including Bristol Manor Health
Care Center, Harborview Health Care Center, and Palisade
Nursing Center (Bristol Manor, Harborview, and Palisade).
The Union and Respondent have been parties to a series of
successive collective-bargaining agreements covering a unit of
full-time and regular part-time certified nurses aides (CNAs),
dietary and housekeeping (grade 1) employees, and recreation
employees.2 The most recent agreement between the parties
was a memorandum of agreement which expired on July 24,
2007 (the 2002 MOA). The MOAs for Bristol Manor,
Harborview, and Palisade expired on the same date as well,
and the bargaining for these four facilities overlapped for some
time. Although this proceeding relates to Castle Hill only, from
time to time the parties made reference to discussions at other
tables, as will be described as is relevant to the issues herein.
The parties commenced bargaining in July 2007. At this time
there were approximately 120 employees in the unit; during the
course of bargaining this number diminished. Pursuant to
attrition, by July 2008, the number of employees had been
reduced to approximately 94 full-time and regular part-time
employees. The bargaining for a successor agreement took
place over the course of 1 year and 13 sessions were held.
Respondent was represented in negotiations by its attorney,
David F. Jasinski, who was the lead negotiator, and consultant
Mendy Gold.3 The Union was represented in bargaining
primarily by Executive Vice President Clauvice Saint Hilare,
assisted by organizer Ron McCalla. There was also an
employee bargaining committee which attended each scheduled

flict in the evidence of particular relevance to my determinations
herein, I have endeavored to explain the specific basis for my conclu-
sions. Otherwise, testimony contrary to my findings below has been
discredited on some occasions because it was in conflict with the cred-
ited testimony of others or because it was inherently incredible or un-
worthy of belief.
2 The parties stipulated to the appropriate unit at the hearing.
3 Gold did not testify herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1158
session. In addition, at some point early in the negotiations the
Union asked for a Federal mediator. Respondent agreed to this
request, and James Kenney was appointed by the Federal
Mediation and Conciliation Service to assist in the negotiations.
1. The KL Labor Group Agreement and subsequent
Memoranda of Ageeement
As a preliminary matter, it should be noted that at the outset
of bargaining, neither party was in possession of a full
contemporaneous executed copy of the collective-bargaining
agreement which governed terms and conditions of
employment at Castle Hill or, in fact, any of the other Omni
facilities. Both parties had a succession of MOAs and side
letters but they had not been compiled into a uniform
document.
The KL Labor Group Agreement (the KL Agreement) was a
multiemployer agreement among several nursing home
facilities and 1115 Nursing Home and Hospital Employees
Union (Local 1115), predecessor to 1199NJ. This agreement
ran from 1992 to 1996. During the course of negotiations, the
parties disagreed as to whether this formed the underlying
collective-bargaining agreement applicable to Castle Hill. The
Union took the position that it was, and as will be discussed
below, there was unrebutted testimony that both Respondent
and the Union referred to this agreement during the course of
adjusting greivances with the Union.
Respondent took the position that the KL Agreement did not
apply to Castle Hill. The document in question does not
specifically refer to this facility and, in fact, does not reference
a list of covered nursing homes. In addition, as Respondent
argues, during the course of negotiations the Union was unable
to identify the constitutent members of the KL Labor Group nor
identify who had signed the agreement on behalf of the parties.
The General Counsel and the Union have taken the position
in this proceeding, as the Union did in negotiations, the the KL
Agreement is the underlying collective-bargaining agreeement
covering Castle Hill, governs most of the noneconomic terms
and provides that certain economic terms such as wages,
holidays, vacations and sick and personal leave are set forth in
applicable memoranda of local conditions. In support of this
argument, both the General Counsel and the Union make
reference to a memorandum of local conditions which, by its
terms, applied to Castle Hill and was effective from 1992
through 1996. This agreement provides, in pertinent part:
“Except as modified herein, and by the terms of the Arbitration
Award rendered by Hon. Leon Reich, dated August 27, 1992,
the provisions of the collective bargaining agreement dated
January 1, 1992, by and between the Union and KL New Jersey
Labor Group shall be binding upon and constitute that
agreement between the parties.”4
In any event, it is clear that the parties never manifested a
meeting of the minds on this issue and it continued to be a
subject of discussion and disagreement in any number of
negotiation sessions.

4 The KL Agreement had a grievance and arbitration clause (art. 8)
which established a process for interest arbitration, naming Leon Reich
as the designated arbitrator.
2. The April 2007 request for information
In anticipation of bargaining, on April 25, 2007, Saint Hilare
wrote to Castle Hill Administrator Francine Sokolowski
requesting certain information, as follows:

SEIU 1199 New Jersey Health Care Union requests the
following information, which it needs for upcoming
negotiations for a successor agreement. Please provide the
information no later than May 15, 2007. At the same time, I
would suggest May 22 or 24 as bargaining date.

1. Any and all documents, including but not limited to
job descriptions and performance evaluations, that
describe the job duties for all bargaining unit positions;
2. For each employee working in a bargaining unit
position, such documents as will show the following:

a) Job title for each employee;
b) Date of hire;
c) Current hourly rate of pay;
d) Regular hours of work;
e) Number of overtime hours worked on a quarterly
basis in 2006 and 2007;
f) Address;
g) Whether employee is a no-frills employee;

3. Documents, including but not limited to summary
plan descriptions that show all fringe benefits such as
health insurance, disability, pension, profit sharing, and
401(k) benefits available to or provided to part-time and
full-time employees in the bargaining unit;
4. Any and all manuals or other documents, including
documents distributed to employees, that describe any of
the terms and conditions of employment for employees in
the bargaining unit;
5. Gross annual payroll for the bargaining unit for the
periods January 1, 2006 through December 31, 2006 and
January 1, 2007 through March 31, 2007;
6. Total cost to the Employer for each of the following
benefits provided to bargaining unit employees during the
periods January 1, through December 31, 2006 and
January 1 through March 31, 2007: health, dental, vision,
life insurance and pension;
7. Number of employees covered by each of the
following categories of health insurance: single, family,
employee/spouse, employee/child;
8. Names of all agencies used by the Employer to
provide temporary staff;
9. Copies of invoices received from each agency
showing the names, number of hours worked, rate(s) billed
and job title for each agency employee provided to the
Employer during the periods January 1, 2006 through
March 31, 2007;.
10. Copies of work schedules for each nursing unit
and/or department for the months October through
December, 2006, and January through March 2007;
11. OSHA injury and illness records for 2005, 2006
and 2007.
12. Any and all documents setting forth policies
regarding overtime work (both voluntary and mandatory),
CASTLE HILL HEALTH CARE CENTER 1159
shift differentials and/or any form of premium pay for
employees in the bargaining unit;
13. Any and all documents setting forth policies
regarding health and safety in the workplace;
14. Complete copies of cost reports submitted,
including any supplemental submissions, for
reimbursement for Medicaid or for any other public entity
or program for the years 2005 and 2006.

Respondent, through Jasinski, initially responded to this
information request on May 3, 2008. He enclosed the employee
handbook and a benefits rider which described the various
benefits offered to employees.5 In this letter, Jasinski also
denied the Union’s reqeust to negotiate the four Omni facility
contracts together.
On June 4, Saint Hilare responded to Jasinski as follows:

For the record, I just want you to know that the
package you sent to the Union contains for Bristol Manor:
Employee list with rate, social security number, date of
hire and a policy manual; for Castle Hill only a cover letter
and a policy book; for Palisades: Employee list with rate,
social security number, date of hire and a policy manual.
In order to prepare for negotiations, the Union requests the
following information:
 An updated list of all employees performing
bargaining unit work by job classification in
seniority order, including name, address, social
security number, job title, date of hire, wage rate,
shift, enrollment in health insurance (and at what
level of coverage, individual, dependent, or
family), part-time or full-time status, number of
hours worked and paid since January 1 2007, and
amount of vacation days, sick days, personal days
and/or holidays earned but unused for the
employees at Castle Hill. We did not receive any
of this information in the package that you sent to
the Union for Castle Hill.
 The gross bargaining unit payroll from January 1
2007 through June 30 2007 for Palisades, Bristol
Manor and Castle Hill.

On June 4, Jasinski forwarded a copy of Respondent’s
summary description plan for its health insurance. Additional
information was sent on June 25 which included the gross
wages for January through December 2006 and January
through March 2007 and aggregate figures for the costs of
health, dental and life insurance premiums for the same periods
of time.
3. The Parties extend the collective-bargaining agreement
Attached to Saint Hilare’s letter of July 17 was a proposed
extension of the collective-bargaining agreement. The Union
proposed extending the contract to August 24 and making all
wage increases retroactive to July 24. By letter of July 24,
Jasinski enclosed a revised extension agreement extending the

5 Single health insurance coverage was provided at no cost to the
employees. The benefits rider listed the additional costs to employees if
they wished to include family members under the Employer’s plan.
contract to September 7 and proposing that all changes to the
agreement become effective upon approval and ratification of
the parties. It is not clear from the record which of the proposed
extensions was the one put into place, but it is undisputed that
the collective-bargaining agreement was extended during
negotiations.
B. The Bargaining, Information Requests, and Related
Correspondence
1. The first bargaining session—July 25, 2007
The parties met for the first time on July 25, or 1 day after
the expiration of the 2002 MOA. The parties discussed
logistical issues and ground rules. Then, Saint Hilare made a
presentation in which he stated that the Union’s goals were
affordable health insurance, including family coverage; wage
and minimum salary increases; enhanced pension benefits;
increased paid time off for employees; improved health and
safety language; and language that would strengthen the
bargaining unit. The Employer stated its goals in bargaining as
well: specifically that the Employer wanted to negotiate a
contract that addressed the needs of the facility, its employees
and its residents. Jasinski testified that Saint Hilare also stated
that the Union was looking to obtain a contract consistent with
industry standards that the Union had established with
approximately 45 other nursing homes in and around New
Jersey, in particular wage minimums for certain classifications
of employees, and that the Union wanted the Employer to
participate in the Union’s benefit plan—the Greater New York
Benefit Fund (GNYBF) which provided for employer-paid
family coverage. Jasinski testified that he told the Union that
the Employer could not accept the “industry standards” as the
interests and needs of Castle Hill were unique. According to
McCalla the issue of so-called “industry standards” was raised
by the Employer who stated that the bargaining at Castle Hill
was viewed as being for that facility exclusively and not tied to
any other facility or to union standards generally. Jasinski also
disparaged the GNYBF, stating that it was in financial
difficulty and that the Employer had no interest in participation
in that plan. Rather, the Employer planned to continue single
coverage of its employees through its own plan.6
During this bargaining session, the Union put forward a
contract proposal containing both economic and noneconomic
terms. The Union sought a 3-year agreement with various
modifications including, among other things, a reduction in the
probationary period from 60 to 30 days, an increase in paid
time off for employees, the Employer’s participation in the
GNYBF or another plan equal to or better than the Union’s plan
(including dependent coverage) with the cost of premiums to be

6 At various times throughout these proceedings the parties made
reference to the so-called “Tuchman Agreement.” This is a collective-
bargaining agreement, negotiated by the Union, governing terms and
conditions of employment with approximately 20 employers, with
some individual variances. McCalla testified that the Union considered
the general reference to industry standards to be broadly what had been
achieved in the Tuchman Agreement. Jasinski testified that after Saint
Hilare made his opening presentation, he told Saint Hilare that every-
thing he had stated was consistent with the Tuchman Agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1160
covered exclusvely by the employer, the addition of parental
and marriage leave, and a health and safety clause which
provided for a “zero lift”7 policy as well as the establishment of
a health and safety committee. With regard to wages, the Union
proposed a 7-percent across-the-board raise for each of the 3
years of the agreement with minimum hourly salaries in the
third year of $11 for CNAs and $10 for grade 1 (dietary and
housekeeping) employees. The proposal further provided that
the employer would make contributions to the union pension
fund of 3 percent of gross payroll for each nonprobationary
employee covered by the agreement. There was no substantive
discussion of the Union’s proposal at the time.
The Union raised the issue of its prior information request
and asserted that Respondent had not fully addressed all the
items set forth therein. Jasinski stated that some of the
information sought was irrelevant or unnecessary and that the
Union had sufficient information to bargain. He then stated that
the Union would receive additional information prior to the
next bargaining session.
2. Interim correspondence prior to the next
bargaining session
By letter of July 27, 2007, Respondent provided the Union
with additional information which it had sought on April 25. In
particular, Jasinski provided a list of employee names,
addresses, job classifications, wage rates, dates of hire, job
status, health insurance coverage, and average hours for a 2-
week period during the prior 6 months. He additionally
provided the Union with the cost to employees for dependent
coverage. Respondent asserted that, “[t]his completes the
Union’s information request.”
Subsequently, on July 30, 2007, Respondent requested in-
formation from the Union, as follows:

At the outset of the negotiations, the Union raised the
issue of the health benefits. Based on the Union’s
proposal, we request a copy of the Union’s current health
benefit plan. In addition, we request any documents
reflecting the status of the current plan and/or its
negotiations for a new health care provider.
We further request any and all information related to
the 1199/SEIU Greater New York Benefit Fund; Service
Employees International Union National Industry Pension
Fund; Training and Education Fund; and New Jersey
Healthcare Workers Alliance For Quality in Long Term
Care.
The information which we requested included the
following:

1. Any and all financial information including but not
limited to internal reports and records for each of these
funds for the years 2002, 2003, 2004, 2005, 2006, and
2007.
2. Any and all documents including supporting
documentation filed with any government agency related

7 The term “zero lift,” as used in this proposal, refers generally to the
use of mechanical devices to transport patients and supplies weighing
over 30 pounds.
to these funds for the years 2002, 2003, 2004, 2005, 2006,
and 2007.
3. List of all members of the Funds for the years 2002,
2003, 2004, 2005, 2006, and 2007.
4. List of employees who have specifically benefited
from the Training and Education Fund from this facility
for the years 2002, 2003, 2004, 2005, 2006, and 2007.

This information is relevant to these negotiations based
on your proposals and needed by us in order to formulate a
counter-proposal to the Union’s demands. Your attention
to this matter will be greatly appreciated and facilitate the
negotiations.

On August 8, prior to the next session, Saint Hilare wrote to
Jasinski, requesting that the Employer submit proposals at the
next session. He additionally remined Jasinski that there were
certain items of information that Respondent had not yet
provided to the Union. Saint Hilare also stated that the Union
would have a response to the Employer’s request for
information prior to the next session.
Saint Hilare’s letter also made reference to a so-called
“compilation” document which had been received from the
Employer at the Bristol Manor table. By way of background, it
should be explained that, since both parties did not have a full
contract pertaining to any of the four Omni facilities,
Respondent either volunteered, or was asked, but clearly agreed
to prepare a document setting forth current terms and
conditions of employment to assist the parties in their
negotiations.8 Saint Hilare noted that such a document had not
been received with regard to Castle Hill and noted that the
Union had many questions regarding the document it had
received. The Union also asked Respondent to provide copies
of all underlying documents it had used to prepare the
“compilation.”
3. The second bargaining session—August 14, 2007
The parties met for a second time. McCalla was not in
attendance on this occasion. According to Saint Hilare, the
parties discussed the compilation document which had been
given to them at the Bristol Manor table. Saint Hilare testified
that he argued that the compilation did not accurately replicate
the existing terms and conditions, in particular that some terms
were missing or had been changed. In particular, Saint Hilare
pointed out that a provision providing for daily overtime had
been deleted, that language protecting the Union from the
unauthorized actions of employees had been deleted and that
there was a new provision which allowed the Employer to
assign bargaining unit work to supervisors under certain

8 As Jasinski testified, the parties mutually acknowledged the lack of
a complete agreement, and the Union requested that he prepare a
document which memorialized the parties’ understanding of the terms
and conditions for Castle Hill. Jasinski testified that he felt “uncomfort-
able” doing so but told the Union he would “take his best shot.” Jasin-
ski further testified that at this time he informed the Union that the
document would contain the Employer’s proposals going forward.
According to McCalla and Saint Hilare, Jasinski offered to prepare the
document and did not say anything about the incorporation of the Em-
ployer’s proposals until the Union raised the issue.
CASTLE HILL HEALTH CARE CENTER 1161
circumstances. According to Saint Hilare, Jasinski stated that if
the Union did not like the compilation it should make a
counteroffer.
Saint Hilare testified that he again asked Respondent to pro-
vide information responsive to the Union’s April 25 request, in
particular information regarding the cost of health insurance,
the number of no-frills employees9 and OSHA logs. Saint Hi-
lare testified that Jasinski asked why such information was
necessary and he replied it was “standard.”10 According to
Saint Hilare, Jasinski stated that Respondent would send the
information to the Union prior to the next bargaining session.
Jasinski asserted that at this meeting the Union took the posi-
tion that KL Agreement formed the basis of the agreement
between the parties but could not identify what it was. As
Jasinski testified:

No one ever knew who the KL group was, no one could iden-
tify those signatures.11 Then the Union handed me this [docu-
ment] across the bargaining table, no one was participating in
contract negotiations, no one had any knowledge in terms of
what the KL group was, who it represented, the number of
employers. We had no idea and quite honestly the union
didn’t have any idea either.
4. The third bargaining session—August 28, 2007
In accordance with the parties’ agreement, a Federal media-
tor, James Kinney, attended this session, and all subsequent
meetings between the parties. Also present were Jasinski, Gold,
Saint Hilare, McCalla, and the employee bargaining committee.
Saint Hilare opened the meeting by noting that it had been
over 1 month since the expiration of the agreement, and ex-
pressed dissatisfaction with the pace of bargaining.
The parties entered into a discussion of the Union’s contract
proposal, and the Employer offered some initial feedback.
McCalla’s bargaining notes reflect that there was a discussion
relating to the Employer’s positions on health and safety, union
activity and communications, and discipline and discharge. As
McCalla acknowledged, the parties had a significant dialogue
about the noneconomic terms of the Union’s proposal.
Jasinski also distributed the compilation document which
had been prepared for Castle Hill at this session. The Union
noted that there were differences between the document and the
current terms and conditions of employment. These included
new language affording supervisors greater leeway to do unit
work and the elimination of language which facilitated organiz-
ing unorganized departments. In addition, the probationary
period had been increased from 60 to 90 days, there were in-
creased restrictions on union access to the facility, the threshold

9 No-frills employees are those who forgo benefits in exchange for
an enhanced wage rate. Under the 2002 MOA, the employer was lim-
ited to offering such terms to 10 employees.
10 At the hearing, Saint Hilare testified that such information was
relevant to the Union’s health care and health and safety proposals. I
note that he did not, however, testify that he said this directly to Jasin-
ski at the time.
11 At the hearing, McCalla was able to name the individual who had
executed the agreement on behalf of the Union. The record does not
establish, however, that he shared this information with the Employer.
for eligibility for medical benefits and paid leave had been
increased and daily overtime had been eliminated.
Jasinski informed the Union that he had provided it with
what he believed to be the existing terms and conditions cou-
pled with the Employer’s bargaining proposals. According to
Jasinski, he felt that proceeding in this manner would expedite
the process. The Union requested that Jasinski go through the
document and highlight the Employer’s proposed changed from
existing terms, and he agreed to so and stated that he would
provide such a highlighted version for the next bargaining ses-
sion.
The Union asked whether Jasinski had used the KL Agree-
ment in preparing the compilation. Jasinski stated that the KL
group had nothing to do with the bargaining for Castle Hill.
The Union asked Jasinski to check with Castle Hill representa-
tives to see if anyone knew what the KL Agreement was, as it
appeared to be the last full collective-bargaining agreement in
the Union’s files. As Jasinski again noted, the Union could not
name any employer who was part of that group or even identify
what KL stood for.
Saint Hilare asked for full compliance with the Union’s out-
standing information request and further asked the Employer to
provide something new: the Employer’s premium payments
for single coverage under its plan. According to McCalla, the
Union asked for this information to see if it could suggest im-
provements, propose alternatives or convince the Employer to
go to the Union plan. In this regard, Jasinski testified that he
reiterated that the Employer would not agree to go into the
GNYBF.
5. Interim correspondence prior to the next
bargaining session
On August 28, Respondent made a followup request for in-
formation from the Union:

Since the Union is proposing participation in the SEIU
Pension Plan, 1199 SEIU/GNY Education Fund and 1199
SEIU/GNY Benefit Fund, we request copies of all Fund
documents, including the actual Plans, as well as any and all
financial records for each Plan, including the 5500’s for the
past 3 years. Your prompt attention to this matter will greatly
facilitate these contract negotiations. Until we receive such
information, of course, we cannot intelligently respond to the
Union’s proposal. Thank you.

By letter dated August 30, Saint Hilare offered Respondent
several bargaining dates and urged that the parties establish a
schedule. He also requested an additional contract extension.
On September 12, Respondent sent an additional contract
extension.
6. The fourth bargaining session—September 19, 2007
At this meeting, the Employer distributed the highlighted
version of the compilation agreement which he had previously
agreed to prepare and the parties reviewed it. The Union
reiterated its request that the Employer recognize the KL
Agreement as the underlying contract, and Jasinski again
refused to do so.
The record establishes that in the compilation agreement
distributed on this day Jasinski had failed to highlight certain
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1162
variances from existing terms and conditions. In particular, the
language in the pension provision was a change from what had
been the existing practice; however, this was not noted by the
Union at the time.12 In addition, the provision deleting daily
overtime had not been highlighted. According to Jasinski, when
the Union pointed that out to him he acknowledged his error
and told the Union that it should have been.
Jasinski testified that he told the Union that the language in
the compilation agreement was not unique and had been agreed
to in other SEIU 1199 contracts, in particular the one negotiated
at the St. Lawrence Rehabilitation Center. According to
Jasinski, that agreement contained certain provisions similar to
what had been proposed by Castle Hill regarding supervisors
and union visitation.
The parties also discussed their overall bargaining stragegy.
Jasinski stated that his preferred method, which he viewed as
most efficient, was to negotiate language issues first and then
deal with economics subsequently. Jasinski also told the Union
that he viewed economics in their totality. The Union requested
that the Employer submit an economic counterproposal.
7. The 10-day notice
On October 18, 2007, the Union sent a 10-day notice to
Sokolowski informing Respondent that the Union intended to
conduct an informational picket at Castle Hill on October 30
from 1 to 5 p.m. Jasinski replied to this notice with a letter
stating that the Employer expected the Union to engage in
lawful conduct and would not tolerate any activity which
impeded patient care services; that employees would be
expected to report for work during their scheduled work hours
and that if any employee walked off the job during their regular
work hours, the Employer would take appropriate disciplinary
action. Jasinski testified that this letter was sent because he had
heard that there was going to be a job action, and there had
been threats of a strike and he wanted to make sure employees
would honor their work obligations. The record indicates that
an informational picket did take place on the appointed day and
time without incident.
8. The October 19, 2007 request for information
On October 19, 2007, Saint Hilare wrote to Jasinski
requesting information which had previously been requested on
April 25, but which the Union felt had not been provided. In
addition, the letter reflects certain requests that had been made
directly at the bargaining table. As Saint Hilare wrote:

Dear Mr. Jasinski,

The Union has made several unsuccessful efforts to obtain
from these employers information necessary to bargain
contracts at Castle Hill, Palisades, Harbor View and Bristol
Manor. The failure by these employers to produce requested
documents has hampered our bargaining especially as we are
finally beginning economic bargaining. The Union repeats its

12 The Employer was proposing that it make a contribution for full-
time employees only for “hours physically worked.” The record estab-
lishes that this proposal was at variance from its current obligations
under the 2002 MOA, which provided for contributions for both full-
time and part-time employees as a percentage of payroll.
request for the following information for each of the four
above referenced facilities:

1. For each employee working in a bargaining unit
position such documents as will show the following:
a) Regular hours of work.
b) Number of overtime hours worked on a quarterly
basis in 2006 and 2007.
c) Whether an employee is a no-frills employee.
2. Names of all agencies used by the Employer to
provide temporary staff.
3. Copies of invoices received from each agency
showing the names, number of hours worked, rate(s) billed
and the job title for each agency employee provided to the
Employer during the periods January 1, 2006 through
March 31, 2007.
4. Copies of work schedules for each nursing unit
and/or department for the months October through
December 2006, and January through March 2007.
5. OSHA injury and illness records for 2005, 2006,
and 2007.
6. Complete copies of cost reports submitted, including
any supplemental submissions, for reimbursement for
Medicaid or for any other public entity or program for the
years 2005 and 2006.
7. The per-employee monthly premium cost for
Employer funded single health insurance coverage
(requested verbally during bargaining).
8. Copies of all collective bargaining agreements and
memorandums of understanding/agreements including all
documents that you used to compile the documents that
were submitted across the table and characterized by you
as the current contract at each of the above referenced
facilities.

With respect to this last item, because the current Union and
management negotiators did not participate in the negotiations
of the prior contracts with these employers, we are both at a
disadvantage in compiling a full set of contracts and MOAs
for each facility. The documents that you handed us in
bargaining that purportedly summarized the current terms and
conditions of employment from prior agreements, were
inaccurate. We therefore, reiterate our request for all contracts
and MOAs between the parties since 1990 that are within the
possession and control of your clients.

The General Counsel adduced testimony from both McCalla
and Saint Hilare about why such information had been
requested.13 In particular, the union representatives testified that
the Union sought information regarding regular work hours and
overtime information because employees had complained that
staffing was not sufficient and because the Employer had
proposed eliminating daily overtime—a proposal which would

13 I do not rely upon this general testimony to establish what was ac-
tually stated during meetings or in other communications between the
parties about the information and its possible or probable relevance. For
that, I rely upon specific testimony about particular bargaining sessions,
correspondence and, where appropriate, the bargaining notes taken by
McCalla and Saint Hilare.
CASTLE HILL HEALTH CARE CENTER 1163
impact unit employees. The number of no-frills employees
related to bargaining over the issue of dependent health care
coverage. Both McCalla and Saint Hilare testified that the July
27 list of employees raised questions regarding how many no-
frills slots were being utilized since the list indicated that more
than 10 employees (the allotted number of no-frills slots) who
were eligible for health insurance14 did not receive such
insurance or extra compensation for foregoing such benefits.
The second and third paragraphs requested information
regarding agency usage. Saint Hilare testified that the Union
had received anecdotal evidence from Castle Hill employees
that agency employees had been used. Saint Hilare testified that
he also spoke with certain employees, whom he did not
recognize and who stated that they were from a temporary
agency. The record is unclear, however, as to whether any of
these conversations may have taken place prior to the October
19 letter.15 McCalla testified that information regarding agency
usage is relevant because agency employees are costly to the
employer and the Union might want to consider whether some
of the money spent on temporary staff might well be utliized to
enhance the benefits of current employees; the Union was
considering a staffing proposal and that the use of agency
employees erodes the bargaining unit. OSHA records were
requested to track whether there were safety issues at the
facility which should be addressed and to defend the Union’s
health and safety proposals.
According to McCalla, the Medicaid cost reports were
something “typically” gotten before bargaining to give the
Union a “snapshot” of the facility. Such reports, which are filed
with the State, are voluminous and contain information about
facility such as the census, number of beds, officers, staffing,
and agency usage, among other items. McCalla testified that
these reports were typically reviewed by the Union’s research
staff and he was unable to identify where information regarding
staffing or agency usage would be found.
The Union also requested per-employee premium cost for
employer-funded single health insurance. Although the
Employer had previously provided information relating to the
costs of dependent coverage, it had not provided the Union with
specific information about the costs of single-employee
coverage. McCalla and Saint Hilare testified that this
information was necessary to enable it to calculate the total cost
for health insurance. In addition, the Union requested copies of
those documents which the Employer had used when preparing
the compilation agreement.
9. The facility contracts to use agency employees
Jasinski testified that based upon threats of a job action
which had emerged in connection with the informational picket,
the facility contracted to provide supplemental services to
ensure the continuity of patient care. Jasinski further testified
that he informed the Union that the facility had done so at a

14 Under the 2002 MOA, employees become eligible for single cov-
erage after working more than 20 hours per week for a period of 6
months.
15 According to Saint Hilare, the first of these discussions took place
in either October or November 2007 and the second in about May
2008.
subsequent negotiation session held shortly thereafter. His
testimony in this regard will be discussed below.
The General Counsel presented testimony from David
Greisman, the CEO of Towne Nursing Staff, Inc. (Towne
Nursing). According to Greisman, in about October 2007, he
received a telephone call from Gold requesting supplemental
employee services. Greisman told Gold that he was not willing
to provide such services unles the facility would be willing to
enter into an agreement for a period of some 3 or 4 months.
Towne Nursing begain providing certified nurses aides, on a
weekly basis, ranging from 225 to 450 hours per week during
the period from October 22, 2007, through April 11, 2008. As
of April 17, Towne Nursing was no longer providing services
to the facility.
Saint Hilare testified regarding a copy of a work shedule
given to him by an employee for Saturday, February 23, 2008.
According to Saint Hilare, the agency employees assigned to
work on that day are indicated by the designation “TA.” There
are eight such designated employees for that day.
10. The fifth bargaining session—October 24, 2007
At the opening of the meeting, the Employer requested that
the Union respond to its economic counterproposal. According
to McCalla, the Union had not yet received such a proposal
relating to Castle Hill, and he surmised that Respondent was
confusing this bargaining with another table. After a caucus,
Respondent presented the Union with an economic
counterproposal which proposed a 5-year agreement with an
overall wage increase of 17.25 percent. At the expiration of the
agreement, the minimums for CNAs and grade 1 employees
would be $8.50 and $8, respectively. Also proposed was an
increase in life insurance coverage from $12,000 to $15,000.
The Employer’s pension proposal provided for monthly
contributions of 2 percent for all eligible full-time employees’
gross actual monthly wages, defined as hours physically
worked, excluding paid leave. Employees would become
eligible for particpation in the pension plan after 1 year of
employment. The Employer also proposed increasing the
number of no-frills slots to 20.
According to McCalla’s notes, there was a discussion of the
Employer’s wage proposal. Saint Hilare reminded the
Employer that it had promised competitive wages to employees
and Gold replied that the proposed wage structure was
comparable to other facilities.
During this meeting, Saint Hilare brought forward the
Union’s modification of the noneconomic terms of its July 25
proposal which had been altered as a result of discussions the
parties had held at the August 28 and September 19 bargaining
sessions. Saint Hilare went through the new proposal and
pointed out that in some instances the Union had adopted the
Employer’s stated position in its entirety and in others had
altered its language to more closely approach the Employer’s
position. The Union had made modifications to its proposals
regarding the probationary period, union activities and
communications, discipline and discharge, transfers and
promotions, seniority, layoff and recall, and health and safety.
According to McCalla, Jasinski then asked whether the
Union agreed to everything else the Employer had put on the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1164
table. The Union replied that the fact that certain of
management’s proposals had not been referenced did not mean
that it was accepting them.
Jasinski testified that the Union’s proposal had been
conditioned on the Employer’s withdrawing language about
supervisors doing bargaining unit work. He further testified that
he requested that the Union put forward a comprehensive
economic proposal and the Union said they would do so at the
next session. As Respondent notes, McCalla’s bargaining notes
characterize this as a “good discussion.”
11. McCalla meets with Sokolowski and the Parties
exchange correspondence
At some point prior to the planned informational picket,
McCalla went to the facility and met with Administrator
Sokolowski regarding an employee inquiry as to whether
Columbus Day was a paid holiday. As McCalla testified,
neither of them could answer that question. Sokolowski brought
out her files, which appeared to be a collection of contracts and
MOAs. Included among the documents was the KL Agreement.
McCalla asked Sokolowski what the document was, and she
replied that the way she researches such matters is to refer first
to that document and then look to see whether the relevant
provision has been deleted or changed by a subsequent
agreeement. As McCalla testified, Sokolowski further stated
that she had provided a copy of the KL Agreement, along with
her file, to Respondent’s counsel in preparation for the
negotiations. According to McCalla, they never got to the
bottom of the Columbus Day issue. There was no specific
reference to it in the KL Agreement, but Sokolowski offered
her opinion that it had been removed as a paid holiday at some
point.
During their discussion, McCalla raised the issue of the
bargaining and expressed his frustration with the process. On
cross-examination, McCalla admitted that he told Sololowski
that Jasinski and Gold were being unreasonable. Subsequent to
this discussion, on November 6, Jasinski wrote to Saint Hilare
as follows:

Throughout this negotiation, the parties expressed their
differences at the bargaining table. The absence of a
signed collective bargaining agreement by the Union
slowed the negotiating process. The Employer, at the
behest of the Union, in an effort to move the contract
negotiations forward, submitted a complete contract which
set forth its understanding of the existing terms and
conditions, as well as limited modifications which the
Employer highlighted. The Union refused to engage in any
discussion concerning the existing terms and conditions in
the contract. Instead, the Union insisted the Employer
submit a complete economic offer, and stated this would
go a long way to resolving the contract.
We agreed with the Union’s demands and submitted a
comprehensive economic offer which included substantial
wage increases. The Union flatly rejected this proposal
and refused to make a counter-offer. Instead, the Union
engaged in a demonstration at Castle Hill, inviting
employees from other facilities to disrupt Castle Hill and
the services to our residents.
Prior to the demonstration, Ron McCalla visited the
Castle Hill and requested a meeting with the
Administrator—Francine Sokolowski. During this
meeting, Mr. McCalla engaged in a series of unlawful acts
designed to undermine the negotiation process.
Specifically, he sought to negotiate with Ms. Sokolowski,
discussing specific proposals and suggesting that the
Employer’s representatives were an obstacle to reaching a
new contract.
In more than 25 years of experience negotiating labor
contracts, I have never been confronted with this type of
unlawful behavior. While I have my opinion of the Union
leadership, I respect the choice that the Union makes in
leading the contract negotiations.
Mr. McCalla has demonstrated he simply cannot be
trusted. As such, any and all discussions that the parties
have will be face to face at the bargaining table. In
addition, should Mr. McCalla or any other Union repre-
sentative repeat this unlawful behavior, we will exercise
our right to file appropriate charges with the National
Labor Relations Board.
Finally, this letter shall serve as notice that since the
contract expired and has not been extended, the Employer
will cease deducting dues.

McCalla replied to Jasinski’s letter as follows:

SEIU 1199 NJ Executive Vice President Clauvice St.
Hilaire asked me to respond to your November 6, 2007
letter. The parties indeed have expressed their differences
at the bargaining table though it is important to note that
despite the Union’s willingness to establish a compre-
hensive schedule of bargaining dates starting in June and
the Union’s availability in each week since, management
has only agreed to six bargaining meetings over the last 5
months.
During bargaining you agreed to create a document
that would compile all collective bargaining agreements
and memorandums of understanding/agreement between
the parties and bring that document to the table along with
all the CBAs and memoranda that you used to compile the
document. On August 14, 2007 you brought a document to
our bargaining session that you purported to be the
compiled current agreement between the parties. After an
initial review it quickly became apparent the document
was not a faithful representation of the existing agreement
but instead was a document that contained major changes
to the existing conditions of employment. These changes
were not highlighted nor even acknowledged by you until
the Union called them to your attention. Only then did you
admit that the document did indeed contain changes to the
existing agreement and was essentially your non-economic
contract proposal. You did not on this occasion or at any
point to this day give the Union a copy of the CBAs and
memoranda that you used to compile this document.
I did meet with Francine Sokolowski for the purpose
of discussing whether Columbus Day is one of the
contractually recognized holidays. Several workers had
raised the issue with the Union. In my meeting with Ms.
CASTLE HILL HEALTH CARE CENTER 1165
Sokolowski she reviewed her file of CBAs and memo-
randa between the parties to confirm the status of
Columbus Day. Her file contained the January 1992
agreement between the Union and Management at that
time organized as the “KL New Jersey Labor Group”. Ms.
Sokolowski stated that this document was the original and
complete agreement that all the successive memoranda
amended. This “KL New Jersey Labor Group” contract is
the document we requested from you because we, too,
understood it to be the full document underlying the
subsequent MOAs yet you have denied this to be the case.
Your refusal to acknowledge this document has impaired
and slowed bargaining. We request that you immediately
deliver that document and the other MOAs to the Union.
After the Columbus Day discussion, Ms. Sokolowski and I
did speak about the current state of labor management
affairs. However, at no time in this dialogue did either of
us discuss specific proposals submitted across the table in
bargaining or any suggested changes in said proposals.
With regard to the economic proposal you finally
submitted at our last bargaining session held on October
24, 2007, the Union asked some questions of clarification,
gave a general first impression of the proposals and agreed
to submit a counter proposal at the next session after a
comprehensive review of Management’s proposal. The
informational picket on October 30, 2007 was peaceful,
lawfully conducted and was not intended nor did it disrupt
resident care.
The Union remains committed to reaching an
agreement with Management at Castle Hill. Clauvice St.
Hilaire has called you on numerous occasions to schedule
new bargaining dates and would appreciate hearing back
from you to schedule dates to resume bargaining.
12. The sixth bargaining session—November 13, 2007
On November 9, Saint Hilare had written to Jasinski
renewing his request for the information previously requested
and urging that it be provided before the next bargaining
session or by November 14 in the event no sessions were
scheduled prior to that date.
At the bargaining session held on November 13, the parties
discussed McCalla’s meeting with Sokolowski and McCalla
stated that he had seen a copy of the KL Agreement in
Sokolowski’s file. He reiterated that the Union felt that
acknowleging this document as the underlying agreement was
important to the bargaining process. Saint Hilare stated that the
Union was willing to sign off on that part of the proposed
agreement which complied with terms contained in the KL
Agreement. Jasinski again disputed the importance of the KL
Agreement to the bargaining.
As McCalla testified, the Union put forward a verbal
economic proposal which included splitting the wage increases
for the second and third years rather than having the full annual
wage increase become effective on the anniversary date of the
contract. In addition, the Union proposd moving the minimums
back to a point where they were significantly less than those set
forth in the Tuchman Agreement. The Union maintained its
proposal, however, that by the end of the agreement the
minimum salaries would reach $11 and $10 for CNAs and
grade 1 employees, respectively. The Union did not put forward
any proposals regarding pension or health insurance at this
time.
According to Jasinski, the Union’s “theme” was industry
standards. Jasinski did acknowlege that the Union’s proposal
had pushed back the date the minimums were to take effect.
There was a discussion of the Union’s information request.
McCalla’s bargaining notes reflect that Saint Hilare specifically
pointed to the fact that a number of employees over the no-
frills limit seemed not to be receiving benefits and that he
wanted to know how many employees were in that category.
Saint Hilare also asked for information regarding the per-
employee premium cost for single health coverage. According
to McCalla, the Union was told that it had everything but that
Gold will look into the issue of single health coverage. The
Union asked whether that would not be something that Gold
would know off the top of his head and the reply was that the
Employer had made it clear that they were not going to move
on the issue of health insurance. Gold stated that the Union was
putting jobs in jeopardy and that the Union was not interested
in a contract.
Jasinski testified that at this meeting he informed the Union
that the facility had contracted to use agency employees.16 He
testified as follows:

The union asked us if there were agency employes that were
being used and our response was yes, that we had the threat of
a strike, that there was going to be a threat of a work job
action, that we were taking precautions, that it was not
impacting on any of the employees, that it had no effect
whatsoever with regard to any of our employees, we were just
looking to make sure that the services were going to be
continued to be provided.

Jasinski testified that he also informed the Union that only
Castle Hill was using agency workers, and that the other
facilities were not. He stated that he did not recall the Union
asking any questions about this issue.
With regard to the Union’s information request more
generally, Jasinski initially testified that he did not recall the
Union raising any issues regarding outstanding information
requests at this meeting, but during his cross-examination
acknowledged that Respondent had informed the Union that it
had provided all information that was relevant.
13. The Employer proposes a Christmas bonus and
the Union agrees
On December 12 and 13, 2007, the Employer wrote to the
Union proposing a one-time holiday bonus for all full-time and
part-time employees of $150 and $75 respectively. The Union
voiced no objection to this, and eventually communicated its
agreement with the proposal. The bonus was implemented prior
to the Christmas holiday.

16 In its brief, Respondent asserts that this discussion took place at
the October 24 meeting. In his testimony, however, Jasinski stated that
he told the Union about the agency usage after the informational picket-
ing (which he characterized as a “demonstration work stoppage”) oc-
curred.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1166
14. The seventh bargaining session—January 17, 2008
The parties met for their next session on January 17, 2008.
According to McCalla’s bargaining notes, Jasinski asked for a
clarification of the Union’s proposal regarding wages, mini-
mums and vacation time.
At this session, the Employer provided the Union with a
verbal economic counterproposal which included a 5-year
agreement, with a total wage increase of 18 percent over the
course of the agreement, at the end of which the minimum
salaries for CNAs and grade 1 employees would be $9.50 and
$8.75, respectively, and which provided for an increase in the
number of allowable no-frills slots to 20. Jasinski stated that
the Employer wanted to conclude the contract and was
frustrated because it had provided the Union with a langage
proposal months ago which incorporated language found in the
KL Agreement with some minor changes, there had been no
response. Saint Hilare countered by pointing out that manage-
ment had previously stated that the St. Lawrence contract had
been the basis for its proposals. Saint Hilare further disagreed
with Jasinski’s assertion that the Union had not responded to
the Employer’s noneconomic proposals, noting that the Union’s
had placed its own noneconomic proposals on the table and was
awaiting the Employer’s response.
According to McCalla, the Union again asked the Employer
to provide the cost of single employee coverage. In addition,
the Union wanted to go through the employee roster and
identify the no-frills employees. Gold and Jasinski replied that
the Union had received all the information it needed and
accused the Union of not being interested in bargaining.
McCalla requested that the Employer provide the Union with
copies of the KL Agreement and related MOA’s. On cross-
examination, McCalla acknowledged that at the time this
request was made, the Union already was in possession of a
copy of the KL Agreement and, in fact, had previously supplied
it to the Empoloyer. McCalla testified that the request was
made because the Union felt that a good-faith review would
compel the Employer to acknowledge that the KL Agreement
was the underlying contract.
15. On January 29, 2008, Respondent replies to the
Union’s October 19, 2007 information request
By letter dated January 29, 2008, Jasinski issued the
following response to the Union’s October 19, 2007 demand
for information. Copies of various memoranda of agreement,
including the KL Agreement, were enclosed as well.
As Jasinski wrote:

We are frustrated with the Union’s current efforts to
avoid meaningful contract negotiations. At the request of
the Union, and in an effort to move the negotiations
forward, we submitted a complete contract which set forth
its understanding of the existing terms and conditions, as
well as some limited modifications which we highlighted.
Instead of showing your appreciation, the Union decided
to file unfair labor practice charges alleging that I
somehow misrepresented the terms of the prior contract.
As you know, these allegations are patently false.
Early in these negotiations, the Employer provided the
Union with all of the documents responsive to its
information requests. Nonetheless, the Union did what it
always does—ask for additional information that is largely
duplicative and/or irrelevant to the bargaining process.
Your recent request for information further represents the
Union’s delay and bad faith tactics.
Nonetheless, in a further effort to move the
negotiations forward, we respond to your additional
request for information, dated October 19, 2007, as
follows.

Request No. 1

For each employee working in a bargaining unit
position such documents as will show the following:
a) Regular hours of work;
b) Number of overtime hours worked on a quarterly
basis in 2006 and 2007; and
c) Whether an employee is a no-frills employee.

Response to No. 1:

This information was already provided to the Union.

Request No. 2

Names of all agencies used by the Employer to provide
temporary staff.

Response to No.2

The facility does not utilize any agencies to provide
temporary staff.

Request No. 3

Copies of invoices received from each agency showing
the names, number of hours worked, rate(s) billed and the
job title for each agency employee provided to the
Employer during the periods January 1, 2006 through
March 31, 2007.

Response to No. 3

The facility does not possess any such invoices.

Request No. 4

Copies of work schedules for each nursing unit and/or
department for the months October through December
2006, and January through March 2007.

Response to No. 4

This information will be forwarded to the Union under
a separate cover.

Request No. 5

OSHA injury and illness records for 2005, 2006, and
2007.

Response to No. 5

The facility does not possess such information.
Furthermore, we fail to see how this information is
relevant to the current negotiations.17

17 Jasinski testified that he had been in error in asserting that the fa-
cility did not maintain OSHA records.
CASTLE HILL HEALTH CARE CENTER 1167
Request No. 6

Complete copies of cost reports submitted, including
any supplemental submissions, for reimbursement for
Medicaid or for any other public entity or program for the
years 2005 and 2006.

Response to No. 6

This information is readily available to the Union
through the State. Indeed, as the Union has demonstrated
in the past, you are already in possession of this
information

Request No. 7

The per-employee monthly premium cost for
Employer funded single health insurance coverage
(requested verbally during bargaining).

Response to No. 7

This information was already provided to the Union.

Request No. 8

Copies of all collective bargaining agreements and
memorandums of understanding/agreements including all
documents that you used to compile the documents that
were submitted across the table and characterized by you
as the current contract at each of the above referenced
facilities.

Response to No. 8

We find it particularly troublesome that you seek
copies of prior contracts and MOAs negotiated by your
Union. Nonetheless, we enclose the prior contracts and all
memoranda of agreements in our possession and the
documents provided by the Union during the negotiations,
including the KL New Jersey labor Group Contract.

. . . .

Jasinski continued:

We look forward to continuing our contract negotiations and
fully anticipate that the Union will resume these negotiations
in good faith. All we ever wanted was to negotiate a fair
contract that balances the needs of the facility, our employees,
and our residents. As you have demonstrated, you have been
able to negotiate and make proposals. Avoid the game-
playing that has scarred other negotiations. We are not
interested in game-playing and only look for a contract that
addresses the needs of our employees.
16. The eighth bargaining session—February 12, 2008
At the outset of this meeting, the Union put forward a new
economic proposal. McCalla characterized this as a “structural
move” in that the Union now would agree to having a contract
that would not reach back to the exipration date of the 2002
MOA, but would be a 3-year agreement moving forward. The
Union additionally proposed a signing bonus of $400. The date
for the top minimum hiring rate was pushed into 2011 and the
Union’s demand for pension contributions was reduced to 2.5
percent of gross payroll. The Union additionally reduced its
proposal regarding sick days and holidays to 10 in each
category and further proposed a $3 per week uniform
allowance.
The Employer then made an economic counterproposal. It
reiterated that its position on health insurance was final,
proposed a 2-percent contribution to the pension fund, and that
it would maintain the status quo with regard to vacation and
holidays. In addition, the Employer proposed a two-tier system
for medical leave for current and newly-hired employees.
In addition, Jasinski brought forward a new wage proposal
that included a signing bonus of $100 and a formula for wages
which amounted to a 17-percent increase over the life of the
agreement. After a caucus, the Union came back to the table
and stated that it believed that management’s wage proposal
was less favorable than the one which had been put forward in
January. Jasinski disagreed, and told the Union that it could
choose between the new wage proposal or the one which had
been previously put forward and consider that to be manage-
ment’s current position. After a caucus, the Union came back to
the table and stated that they would choose the Employer’s
prior proposal as reflecting its current bargaining stance. Even
though it did not have a signing bonus, the wage structure was
more favorable to employees.
At this meeting Jasinski also announced that the Employer
had reached its final offer on a number of economic provisions,
leaving only the wages and minimums at issue. He further
stated that the Employer was close to its final offer on wages
and had reached its final offer as to the noneconomic language
in the proposed agreement. Both McCalla and Saint Hilare
expressed surprise at this position insofar as there had been no
discussion of their October 24 proposal regarding noneco-
nomic terms and conditions.
17. Saint Hilare responds to Respondent’s
January 29, 2008 letter
On February 14, 2008, 2 days after the Parties had met for
the eighth time, Saint Hilare responded to the letter sent by
Jasinski on Janaury 29 and the information provided therein, as
follows:

I am responding to the letters you faxed to the Union
on January 29, 2008 referencing a request for information
relevant to negotiating collective bargaining agreements at
the above referenced facilities that I sent you on October
19, 2008. While you sent four separate letters for each of
the facilities in question, your statements were identical in
each letter so I will take the liberty to respond to all of the
assertions you raised in one document.
The Union shares your frustration at the lack of
progress at these negotiations though we take issue with
many of the assertions in your letters. To start, the
“complete contract” you submitted at each negotiation was
not a faithful representation of the existing terms between
the parties and you did not indicate or state that it included
“highlighted modifications” when you provided the
document. The changes you inserted were subsequently
highlighted only after we brought them to your attention at
bargaining. Further, you did not provide “all the
documents responsive to . . . information requests”. We
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1168
have raised the issue of lack of compliance with our
information requests both in writing and at multiple
bargaining sessions for the above referenced facilities. I
will respond to your letter in the format you used. Each
response represents our understanding for each of the
above referenced facilities.

Request 1

1. We have not received information on overtime
hours.
2. We have not received a list of no-frills employees.
Contrary to your claims, we cannot determine from
information provided which employees are no-frills.

Request 2 and 3

Information from our members disputes the assertion
that no agency CNAs are being used in the above
referenced facilities.

Request 4

As I advised you on February 7, 2007 we have yet to
receive the copies of work schedules for the above
referenced facilities promised in your January 29, 2008
letter.

Request 5

We find it hard to believe that the facilities do not keep
OSHA logs. It is my understanding that nursing homes
need to keep these records. The Union has made proposals
for improved health and safety standards that would be
informed by this information which reflects employee
injuries and illnesses.

Request 6

We understand but do not agree with your position that
you need not provide Medicaid costs reports and other
related data because this information is available from
other sources. Kindly furnish the 2007 report as soon as it
is available.

Request 7

You provided only the cumulative cost for single
health insurance coverage for everyone in the above
referenced facilities, not the monthly per employee
premium cost to each of the four employers. That vital
piece of information cannot be accurately computed from
the information we received. We cannot simply divide the
cumulative total by the number of employees to determine
the cost because the number of employees fluctuates from
month to month. We do not understand why you refuse to
simply provide this readily accessible monthly premium
information.

Request 8

We finally received the MOAs and contracts as you
promised in your January 29, 2008 letter. We are pleased
to receive this information so that we can confirm past
practices and benefits and bargain intelligently over the
issues. We note that at least one of the KL Labor Group
contracts you sent us is not a document we had and gave
to you during bargaining. We presume that it is a
document that the employer had in its possession and
recognized as part of the bargaining history between the
parties. If that is incorrect, please let me know.

The Union also looks forward to returning to
negotiations and concluding collective bargaining
agreements that address the legitimate needs of our
members as well as the needs of the residents and
operators of the facilities.
18. Respondent replies to Saint Hilare’s
February 14, 2008 letter
On February 20, 2008, Jasinski responded to the assertions
contained in Saint Hilare’s letter, as set forth below:

We have reviewed your letter dated February 14, 2008
combining all facilities and continue to be perplexed by
your actions. Instead of focusing your attention on
negotiating a contract in the best interests of your
members, you persist with your requests for information
entirely irrelevant to the bargaining process.
As we advised you, we will provide copies of the work
schedules under separate cover. Otherwise, we have fully
complied with the Act by providing the Union with all the
information necessary to negotiate. We continue to assert
that this information is unnecessary, irrelevant and already
in the Union’s possession. Your request for irrelevant
information further represents the Union’s delay tactics
and abuse of the process. One needs to look no further
than the Union’s ability to put forth full comprehensive
economic offers with the information we have already
provided to you.
Additionally, we have repeatedly told you at the
bargaining table that the KL Labor Group contracts have
no relevance to these negotiations. Contrary to your self-
serving statements, we do not recognize that these
documents are part of the bargaining history of the parties.
It is time for you to stop playing games and focus on
negotiating a contract in good faith. If it is your position
that the Union will not return to the bargaining table
without this information, please let us know. If that is the
case, we respectfully request that you have the decency to
inform your members of the reasons that the parties are
not meeting. We do not want any misunderstanding or
miscommunications on this point. Otherwise, we intend on
going forward with the scheduled sessions in a good faith
effort to reach an amicable resolution that balances the
needs of this facility with that of the employees.
Finally, by combining all the facilities in your letter,
you continue to disregard our position that each facility is
separate and stand alone. In the future, please address each
facility separately, since each facility has its own
collective bargaining agreement.
19. The ninth bargaining session—February 27, 2008
As McCalla testified, the Union decided to make some
structural changes and compromises to “jumpstart” the
bargaining with regard to wages and health insurance. In
CASTLE HILL HEALTH CARE CENTER 1169
particular, the Union agreed to add a fourth year to the
agreement In addition, the Union agreed to run the contract
prospectively and, as McCalla stated, that would bring the
coverage of the agreement closer to management’s proposal for
a 5-year term. Further, the top salary minimum rates were
pushed back to take effect September 2011. The Union
additionally proposed a 2-percent seniority recognition bonus.18
The Union modified its proposal regarding employer-financed
dependent care coverage and suggested a schedule that would
not require the Employer to make full payment for dependent
coverage until an employee had completed 10 years of
service.19
Jasinski told the Union that the proposed wage structure,
coupled with the seniority bonus, was regressive and
demonstrated the Union’s bad faith. Jasinski stated that the
Union’s advancement of this proposal, at such a late date in
negotiations, showed that they were not trying to get a contract
and were just attempting to drag things out.
20. The 10th bargaining session—March 11, 2008
Prior to this meeting, on February 29, 2008, the Union issued
another 10-day notice regarding informational picketing at
Castle Hill.
At the 10th meeting, which McCalla did not attend, the
Employer put forth a revised economic proposal which sought
to modify paid time off by establishing a two-tier system for
current and newly-hired employees. Respondent also offered an
increase in the signing bonus.
Saint Hilare told Respondent that, without the information
regarding health premium costs, it was difficult to bargain over
or defend its health care proposal. Jasinski replied that the
Union had been able to make its proposals without the
information.
Saint Hilare testified that at this meeting he told Jasinski that
there Castle Hill was utilizing the services of agency employees
and that Jasinski denied that claim.20 Saint Hilare also stated
that the Union had asked the Employer about the number of no-
frills employees and why certain employees did not have health
insurance and Gold replied that the Employer would get back to
the Union on that issue.
Saint Hilare also told the Employer that members were
complaining about having received medical bills. Gold
collected copies of such bills from the bargaining committee
members and said he would look into the issue. The Union
complained that new employees were not being informed that
they were eligible for health insurance, and Gold stated that

18 Saint Hilare’s bargaining notes from March 11 indicate that the
Union’s seniority recognition proposal would apply to employees with
more than 5 years of employment.
19 For the first 5 years of employment, the employee would pay for
dependent care. After this point, the Employer would assume 50 per-
cent of the cost and the share of the Employer’s burden would increase
by 10 percent each year until the employee had completed 10 years of
employment.
20 Saint Hilare’s bargaining notes list as an issue to be raised,
“agency workers @ Castle Hill.” There is also a subsequent reference
to “agency.”
there was a staff member whose responsibility it was to speak
with new employees about their benefits.
A bargaining session scheduled for March 18 was thereafter
canceled by the Union. On that day, Saint Hilare met with local
politicians to enlist their support in getting a contract with
Respondent.
21. On April 1, 2008, Respondent provides additional
information to the Union
By letter dated April 1, Jasinski wrote to Saint Hilare and
provided additional information to the Union as follows:

We provide you with the following information:

1. Amount of overtime for the previous year varied
each week based on a number of factors including call-
outs and unavailability of staff. Nevertheless, it is fair to
estimate that overtime hours typically ranges from 100-
300 hours per week over the previous year.
2. Number of no-frills employees: 0
3. Agency Usage: None as of April 1, 2008
4. OSHA: See attached21
5. Monthly insurance premiums:
289 Single
526 E+1
647 Family

As we have previously stated across the table, nothing has
prevented the Union from engaging in negotiations. To the
contrary, the Union has made proposals and counterproposals
including a comprehensive contract proposal. Upon receipt
and review, if you have any additional questions or
comments, we respectfuIly request that you respond in
writing.
22. The Union’s response to Respondent’s April 1
letter and submission
On April 9, Saint Hilare responded as follows:

I am responding to your April 1, 2008 letters regarding the
Union’s outstanding request for bargaining information.
While you sent four separate letters for each of the facilities in
question, your statements were almost identical for each
facility. Unless otherwise indicated, my comments below
relate to all four facilities.
Request 1: Your response to the Union’s request for
overtime information is inadequate. You state, “it is fair to
estimate” for all four facilities that overtime hours
“typically range from 100-300 hours per week over the
previous year.” The Union requested the number of
overtime hours worked on a quarterly basis in 2006 and
2007 for each bargaining unit employee. Your generalized
estimate is not sufficient.

You provided contradictory information on the number of no-
frills employees.
Requests 2 and 3: You continue to deny that the
facilities use agency workers.
Request 4: No schedules were provided.

21 Enclosed was the OSHA log for 2007.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1170
Request 5: After all these months, you finally
produced OSHA logs for 2007 on April 1, 2008. You did
not produce logs for 2005 and 2006.
Request 6: No documents provided.
Request 7: Thank you for finally providing the
monthly insurance premiums in your April 1, 2008 letter.

The piecemeal fashion in which the information has been
provided and the failure to provide all the information
requested, even these many months later, has made these
negotiations particularly difficult. Now that we have
information regarding health insurance and health and safety,
we will provide you with revised proposals at our next
bargaining sessions at all four facilities. Once we receive the
remaining information, we will present further proposals.
23. The 11th bargaining session—April 9, 2008
The Employer had maintained that the facility did not have
any no-frills employees. Jasinski testified that the Union kept
raising the issue because the Employer had proposed increasing
the number of allowable slots and had been informed that this
was to afford the Employer increased flexibility. As Jasinski
testified, Respondent also took the position that, inasmuch as
no-frills employees were union members, the Union could get
that information from them.
At this bargaining session, the union representatives had
brought with them a copy of the employee list which had been
provided by Respondent. The Union had placed question marks
next to the names of all employees who were designated as not
having health insurance. According to Saint Hilare, the list
showed a number of employees who appeared to be without
coverage who worked enough hours and had sufficient
seniority to qualify under the 2002 MOA. The Union wanted to
speak about individual employees, but the Employer refused to
do so. Initially, Gold stated that he would get back to the Union
with a response, but then the Employer advanced several
possible explanations as to why workers who were not no-frills
employees would nevertheless not have coverage: the employee
may not have sufficient hours to participate, the employee may
not have reached the 6-month waiting period in order to
participate; or the employee simply never signed up for
coverage.22 On cross-examination, Respondent adduced
testimony from Saint Hilare that the Union had not sought to
file grievances with regard to any employee who was listed as
not receiving health insurance who the Union felt would qualify
for that benefit.
The Union reiterated its prior requests for employee
schedules and was told that they were bulky and not retained.23
24. Respondent’s April 22, 2008 response to
the Union’s April 9 letter
On April 22, 2008, Jasinski replied to Saint Hilare’s April 9
letter as follows:

22 This assertion prompted a discussion about whether the Employer
had an affirmative obligation to ensure that employees who qualified
for coverage were knowledgeable about their rights.
23 Previously, in letters dated January 29 and February 20, the Union
had been advised that schedules would be provided.
We are in receipt of your letter dated April 9th. At the
inception of these negotiations, the Employer provided the
Union with a complete response to the Union’s request for
information. Nonetheless, on April 1, 2008, we provided a
supplemental response in response to information
requested by you. Instead of expressing appreciation, you
claim that the failure to provide the Union with additional
information—which is largely irrelevant, not in our
possession, and/or easily ascertainable—has made these
negotiations difficult.
Let’s be clear. The parties have been negotiating for
months. As we previously stated across the bargaining
table and in prior correspondence, the Union has been
fully capable of putting forth full economic proposals and
counterproposals. Indeed, you have made proposals
covering every economic item. The additional information
being sought is neither relevant nor necessary to continue
bargaining. Rather, it reflects the Union’s delay and stall
tactics and its warped purpose of avoiding a contract that
addresses this facility.
As always, we are fully prepared to continue
negotiating in good faith. Nonetheless, if the Union is
unwilling to continue bargaining without the rest of the
requested information, please let us know. Otherwise, the
Union should be prepared to negotiate a contract that
balances the needs of this facility and its employees.

Thank you.
25. The 12th bargaining session—May 14, 2008
On May 8, Saint Hilare wrote to Jasinksi confirming that he
had received a letter setting a negotiating date of May 14.
Jasinski replied the same day noting that since the Union had
requested the involvment of the FMCS, any and all
communications regarding the negotiations be communicated
through the mediator, including proposed dates for meetings.
At this meeting, as Jasinski testified, certain economic
proposals were exchanged and from the Employer’s per-
spective, “we were pretty close to our final offer at that time.”
Saint Hilare’s bargaining notes for May 14 show that the
Employer presented a proposal for a 5-year agreement, a $175
signing bonus upon ratification, a 17.5-percent wage increase
over the life of the agreement, and final minimum salaries of
$9.50 and $8.75 . No-frills employees would receive a wage
enhancement of $1.50 per hour, and 20 such positions would be
allotted. The majority of other benefits would be as had been
previously proposed. The Union modified its February 27 offer
by reducing the proposed signing bonus to $325 and lowering
proposed wage increases by $.25 in 2 years of the contract.
The Union requested that the Employer supply it with an
updated employee roster. Jasinski agreed, and according to
Saint Hilare, also committed to providing the Union with
answers to its questions regarding no-frills employees. On May
14, Respondent supplied Saint Hilare with a list of employees
as of May 13, 2008, setting forth each employee’s name, title,
rate of pay, date of hire, address, hourly status, and health
insurance status. As Saint Hilare testified, however, the
document did not contain any health insurance information
whatsoever with regard to a number of employees and lists one
CASTLE HILL HEALTH CARE CENTER 1171
employee as being a no-frills employee; thus it did not clear up
the no-frills issue.
During the meeting, Saint Hilare told the employer
representatives that he would be unavailable for bargaining
during the month of June due to a union convention and a
planned vacation. According to Saint Hilare, he made a point of
repeating this at the meeting and Jasinski joked with him about
it. Jasinski testified that he did not recall how he became aware
that Saint Hilare would be unavailable, and that any such
unavailability should not have precluded the parties from
negotiating inasmuch as McCalla would have been available in
any event. Jasinski further asserts that he communicated this to
Saint Hilare.
26. Respondent’s May 15, 2008 letter to the Union
and the Union’s response
On May 15, Jasinski wrote to Saint Hilare, as follows:

On May 14, 2008, the parties held another negotiation
session. At that time, the Employer made a complete
proposal for a new collective bargaining agreement to the
Union. The Union responded with a minor change in its
wage proposal and no further changes in any other
provision including economic and non-economic items.
Prior to the conclusion of this meeting, after nine (9)
months of negotiations, you requested (for the first time)
an updated list of employees. You indicated that once you
receive that list you will be prepared to schedule another
negotiation session. Yesterday, we forwarded to you in
your office the updated list of Union employees.
Therefore, we see no reason for continued delay and
request a bargaining session for this facility. We propose
May 30, June 2 or 3, 2008 to continue negotiations, as this
will provide you with more than sufficient time to confirm
the information and formulate a complete response. At that
session, we expect a full proposal from the Union that
includes economic and non-economic items.

On May 20, Saint Hilare replied as follows:

This is to advise you that a set of bargaining date[s] is sent to
you for your confirmation regarding Castle Hill, Harbor View
and Palisades. The Union is available on June 6, 2008 for
Castle Hill at 10AM, June 9, 2008 for Palisades at 10AM and
June 10, 2008 for Harbor View at 10AM.24
27. Respondent’s May 28, 2008 response to the
Union’s April 9 information request
On May 28, Jasinski wrote to the Union, enclosing certain
information that previously had been requested from
Respondent:

We enclose the following additional documents responsive to
the Union’s request for information:

1. Total overtime hours by quarter for 2006 and 2007;
2. OSHA Reports for 2005 and 2006;
3. New Jersey State Reimbursement Reports for 2005
and 2006; and

24 Saint Hilare was available this week as it fell between the conven-
tion and his vacation.
4. the following department schedules:
a. Dietary Department (12/30/07-5/16/08)
b. Housekeeping Department (12/23/07-4/26/08)
c. Nursing Department (1/6/08-4/26/08)

These are all of the responsive documents in our
possession. Additionally, as we previously stated, there
were no agency personnel used by this facility in the
requested time period.
We continue to await dates for continued negotiations
at this facility.

McCalla testified that the overtime information provided by
Respondent in this letter was not responsive to its requests for
individualized information and, therefore, did not enable the
Union to fully investigate the potential impact the proposed
elimination of daily overtime would have on individual
employees.
28. On June 10, 2008, the Union responds to
Respondent’s May 28 submission
On June 10, Saint Hilare sent Jasinski the following reply to
his May 28 letter and the information provided therein:

We received the information accompanying your May
28, 2008 letter. As you know, we have been seeking this
information since April 25, 2007. Your piecemeal
production has greatly impaired our ability to bargain.
Further, the information you provided still is not complete.
I must also point out that since early April, 2008 at
Castle Hill bargaining, I requested updated information for
all four facilities. With respect to the documents produced
with your May 28, 2008 letter, the production remains
incomplete.
1. Overtime hours: You did not provide overtime hours
for each employee as requested for any of the four
facilities. Rather, you provided a total quarterly amount
for all employees, presumably across all bargaining unit
job titles for 2006 and 2007. Given the employer’s
proposal on the elimination of daily overtime, the receipt
of this information is necessary.
At the April, 2008 session at Castle Hill, we
questioned you about your response to our request for
overtime information. We told you the information was
necessary given your daily overtime proposal. You replied
that the rough estimate you provided was all that you had
to give us. We need the overtime information for June 1,
2007 through May 31, 2008, as well as for the period
stated in the April 25, 2007 request. We also need it in the
form described in our April 25, 2007 letter, i.e., on a
quarterly basis for each employee.
2. OSHA reports: none were provided for 2005 at
Harborview.
3. Cost Reports: It does not appear that you provided
the complete and final reports as the copies provided did
not contain Schedule H, the provider’s certification. In
addition, other pages were missing from the 2006 and
2005 reports for Castle Hill. In my February 14, 2008
letter I also asked you to provide the 2007 reports as soon
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1172
as they are prepared by your clients; to date, no 2007
reports have been provided.
4. Schedules: The schedules you provided do not show
all individuals who were actually working on the floors.
There are daily schedules in nursing which show on a
single page all individuals who actually work on all shifts
on all units. Please provide the daily schedules for
February 1, 2008 through the present. In addition, the LPN
schedules for Harborview were provided only for one
month and not even all shifts for that month. Finally, only
about four months of schedules were provided for each of
the four facilities.
5. Agency information: You stated in your May 28,
2008 letter that “there were no agency personnel used by
this facility in the requested time period.” What do you
mean by requested time period? In your previous
correspondence and at bargaining, you claimed that none
of the facilities used agency workers. Are you now saying
that agency workers have been or are being used since
March 2007? If so, please provide the information
regarding agency usage, as requested paragraphs 8 and 9
in my April 25, 2007 information letter for all four
facilities during the period from March 2007 to the present
time.
6. No-frills: You have not clarified the contradictory
information provided to us on April 1, 2008.
Thank you for your anticipated cooperation.
29. Respondent’s June 17, 2008 reply to the
Union’s June 10 letter
On June 17, Jasinski wrote to Saint Hilare in response to the
assertions made in his June 10 correspondence:

We are in receipt of your letter dated June 10, 2008.
Your response to the information we provided with our
May 28th letter is just as puzzling as your repeated steps to
try to avoid reaching a contract. In our letter, we informed
you that we have provided you with all of the information
in our possession. Yet, you insist that our production
somehow “remains incomplete.” It is no different than the
responses you make at the negotiating table.
Now, more than ever, it is apparent that the Union has
absolutely no interest in using any of this information for
legitimate purposes at the bargaining table. Rather, the
Union’s strategy is transparent—to use these information
requests to avoid meaningful bargaining and to try to
avoid reaching impasse. Instead of continuing your bad
faith conduct by putting forth irrelevant and harassing
information requests, I suggest that you refocus your
energies to engage in meaningful bargaining so that the
parties can reach a contract for the benefit of our
employees.
We respond to your specific allegations as follows:
1. The approximate average overtime worked per
employee are as follows:

1st Quarter 2006 - 53 hrs
2nd Quarter 2006 - 38 hrs
3rd Quarter 2006 - 73 hrs
4th Quarter 2006 - 50 hrs

1st Quarter 2007 - 63 hrs
2nd Quarter 2007 - 47 hrs
3rd Quarter 2007 - 65 hrs
4th Quarter 2007 - 55 hrs

Moreover, contrary to your assertion, we never
proposed to eliminate overtime. To the contrary, all
bargaining unit employees will continue to be paid
overtime compensation on a weekly basis. We stated this
at the bargaining table. You continue to try to manipulate
and distort the facts.
2. As you concede, we provided you with all the
requested OSHA reports.
3. We provided you with the 2005 and 2006 cost
reports in their entirety. We provided you with these cost
reports even though they are typically not considered to be
relevant in negotiations, and you have not demonstrated
any need for these documents, as you must under Board
law. Troy Hills Nursing Home, 326 NLRB 1465, n.2
(1998). You claim that “Schedule H” and other
unidentified pages were missing from these reports.
Accordingly, please provide us with the specific reasons
why you consider such information relevant to the
bargaining.
4. We provided you with all the schedules in our
possession. We cannot provide them in a form which does
not exist.
5. This facility did not utilize agency personnel from
March 2007 through the present.
6. Currently, Castle Hill does not have any employees
in the no-frills category. We fail to understand what
“clarification” is needed.
We recognize that you are currently away on vacation.
In fact, we know that you have been unavailable since the
end of May. We suggest that you propose dates in July and
August that will not conflict with your schedule.
Thank you.
30. Respondent declares impasse and issues
its final offer
On July 7, Jasinski sent the Union a letter together with what
was characterized as its final offer, as follows:

We are fast approaching the one-year anniversary of
the expiration of the referenced collective bargaining
agreement. Since the expiration of the contract, the
Employer met with the Union and its committee in
numerous bargaining sessions. In these sessions, the
Employer responded to the Union’s proposals and offered
a complete contract containing terms and conditions as
well as addressing all economic issues. The exchanged
proposals and counter-proposals were made on our part in
a good faith attempt to reach an amicable resolution for a
new collective bargaining agreement.
These numerous sessions with counter-proposals
demonstrate there is a difference of opinion between the
parties on a number of things, including, but not limited to,
CASTLE HILL HEALTH CARE CENTER 1173
wages, health benefits and paid time off. It has been over
one month since we last met with the Union. The
Mediator, as well as this office has tried to contact you—
all attempts have been unsuccessful. It is apparent to us
that the Union has shown no interest in meeting to resolve
this collective bargaining agreement and refuses to move
from its fixed positions.
Because of the Union’s inactions and unwillingness to
modify its proposals, we are at an impasse. Enclosed,
please find the Employer’s final offer, which we will
implement July 11, 2008. The implementation of this final
offer is based on a number of factors including, but not
limited to, the Union’s fixed positions in the contract
negotiations.
This final offer does not preclude meeting with the
Union—we will. We believe that too much time has
transpired and we do not see any interest by the Union to
resolve this matter. Should you have any questions or want
to discuss this matter further, please call the undersigned.
. . . .
FINAL OFFER
CASTLEHILL HEALTH CARE CENTER
And
SEIU 1199 NEW JERSEY
TERM:Five (5) years, to be effective upon ratification by
members.

ELIGIBILITY: Employees who are regularly
scheduled and work thirty (30) hours
or more per week shall receive full
benefits. The working time shall be
defined as per the Employer’s
Workweek proposal.

Employees who are regularly
scheduled and work twenty (20)
hours and less than thirty (30) hours
shall receive benefits on a prorata
basis. The working time shall be
defined as per the Employer’s
Workweek proposal.

WAGES

BONUS: $175.00 - Full time employees
$90.00 - Part time employees

NO-FRILLS: $2.50 per hour above the
minimum in the job classification
for all employees who waive all
contract economic benefits.

$1.50 per hour above the minimum
in the job classification for all
employees who waive all economic
benefits with the exception of paid
holidays, sick days, personal, if any,
and vacation days.

Twenty-five (25) no-frills positions.

Upon ratification or implementation by the Employer: three
percent (3%) increase.

Twelve (12) months after ratification: two and one-half
percent (2 ½ %)
increase
Eighteen (18) months after ratification: two percent (2%)
increase.
Twenty-four (24) months after
ratification: three percent (3%)
increase.
Thirty-six (36) months after ratification: two percent (2%)
increase.
Forty-two (42) months after ratification: two percent (2%)
increase.
Forty-eight (48) months after
ratification: three percent (3%)
increase.
Increases shall not be added to minimums.

New Minimum hiring rates as follows:

CNAsGrade 1
Upon ratification
$8.75 $8.00
Twenty-four (24) months after ratification
$9.25 $8.50
Forty-eight (48) months after ratification
$10.00 $9.00

Employees shall receive the increase to the new minimum or
the general increase, whichever is greater.

EMPLOYEES EMPLOYED PRIOR TO RATIFI-
CATION SHALL RECEIVE THE FOLLOWING
BENEFITS:

HOLIDAYS: -Eight (8) designated holidays
- Employee’s birthday
-Two (2) personal days accrued annually

SICK DAYS: Eight (8) sick days accrued annually

VACATION: CNAs and Grade I
Ten (10) paid days - Upon completion of one
(1) year of continuous employment.
Beginning of sixth (6th) year of continuous
employment, eligible employees begin to
accrue fifteen (15) paid days.
Beginning of the sixteenth (16th) year of
continuous employment, eligible employees
begin to accrue sixteen (16) paid days.
Beginning of the twenty first (21st) year of
continuous employment, eligible employees
begin to accrue seventeen (17) paid days.

HEALTH INSURANCE:
As provided by the Employer.

PENSION: Two percent (2%) of all eligible full-time
covered employees’ wages for hours
physically worked, as defined in the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1174
Employer’s Pension Article.

LIFE INSURANCE:
Increase to a total of $15,000.00.

1199 TRAINING AND UPGRADING FUND:
One half percent (1/2%) of hours physically
worked for eligible employees for hours
physically worked. Eligibility and hours
physically worked are defined as per the
Pension Provision in the Employer’s proposal.

UNIFORM: Increase to $3.00 per week for all full-time
employees. This amount shall be pro-rated for
eligible part-time employees.

EMPLOYEES HIRED AFTER RATIFICATION:

HOLIDAYS: Eight (8) designated holidays
Employee’s birthday

SICK DAYS: Earn one (1) day for every two (2) months of
continuous employment.

VACATION: CNAs and Grade 1:
Upon completion of the first (1st) year
of continuous employment five (5) paid
days.
Beginning of the third (3rd) year of
continuous employment, eligible
employees begin to accrue ten (10) paid
days.
Beginning of the eleventh (11th) year
of continuous employment, eligible
employees begin to accrue fifteen (15)
paid days.
Beginning of the sixteenth (16th) year
of continuous employment, eligible
employees begin to accrue sixteen (16)
paid days. Beginning of the twenty-first
(21st) of continuous employment,
eligible employees begin to accrue
seventeen (17) paid days.

HEALTH BENEFITS: Same as all other employees.

PENSION: Same as all other employees.

LIFE INSURANCE: Same as all other employees.

UNIFORMS: Same as all other employees.

TRAINING AND
UPGRADING: Same as all other employees.
31. The Parties confirm subsequent negotiations
On July 7, 2008, apparently prior to receiving or reviewing
the final offer, Saint Hilare wrote to Jasinski that he had just
returned from vacation and had reviewed Jasinski’s June 17 and
23 letters, written while he had been away. He expressed
surprise at Jasinski’s statements concerning his failure to
contact the Employer to propose bargaining dates. He further
stated that he had contacted the mediator, and proposed a series
of bargaining dates for the four Omni facilities. He additionally
outlined the information which the Union maintained had still
not been furnished.
On July 10, Jasinski replied that the Respondent would meet
with Saint Hilare regarding Castle Hill on July 17, 2008. With
regard to the information sought, Jasinski asserted that the
Employer had given the Union all the information in its
possession and further stated that “the no-frills employees do
not apply to this facility.” In this letter, Jasinski characterized
the upcoming meeting as “negotiations.”
32. The Union responds to Respondent’s declaration
of impasse and the final offer
On July 11, Saint Hilare sent the following letter to Jasinski:

I received your letter dated July 7, 2008 regarding the
final offer for Castle Hill. I sent you a letter on July 7,
2008 where I proposed bargaining dates on which both the
mediator and I are available.
I dispute in the strongest terms that the parties are at
impasse. You continue to fail to provide all the
information requested. Our last bargaining session we
asked a number of questions about the Employer’s health
plan such as why employees who appeared to be eligible
for health insurance under your proposal were not covered
and why deductions were made from paychecks for “free”
dental benefits. You have not responded to those
questions.
Your claim that you are imposing your “final offer”
because the Union has been unwilling to modify its
proposals and its “inactions” is preposterous. The Union
has repeatedly modified its proposals and as recently as at
our last session. The proposal I received today from you
was never previously presented. For example, you never
had a proposal for 25 no frills employees. The Union has
not had the opportunity to discuss this or the other parts of
your offer with the committee and the Union has a number
of questions about it.
Further, the impact of short staffing at Castle Hill and
the increased usage of the agency employees have become
especially acute and I just learned that during my vacation
employees conducted a spontaneous protest over the
impossible working conditions and difficulty in providing
patient care that have resulted from understaffing. The
Union bargaining committee has finally had the chance to
review schedules that you belatedly produced on May 28,
2008 (almost a year after they were requested and which
remain incomplete). This information has influenced
proposals that the Union intends to discuss at our next
session.
Given that the parties are not at impasse, the
Employer’s unilateral imposition of your “final offer”
violates its duty to bargain in good faith. Instead of
threatening to impose, I suggest you accept the bargaining
date I offered in my letter of July 7, 2008 and approach the
bargaining table with some flexibility so we can finally
settle this contract.
Thank you for your anticipated cooperation.
CASTLE HILL HEALTH CARE CENTER 1175
33. The 13th bargaining session—July 17, 2008
The parties met again on July 17. At the outset, Saint Hilare
asked whether the Employer had implemented its final offer.
Jasinski replied that it had, as of July 13. The Union informed
the Employer that, despite certain references to ratification in
the final offer, it would not be submitted for ratification by
employees. The Union then posed a series of questions
regarding certain terms of the final offer relating to part-time
employee eligibility for benefits and the signing bonus; whether
the proposed no-frills rate would be above an employee’s
current rate or the minimum rate of pay; why the Employer had
raised the allowable number of no-frills employees from 20 to
25 slots and whether employees working fewer than 20 hours
per week would receive any benefits. The Employer provided
the answers to such inquiries. The Union was informed that the
otherwise unexplained reference to the “workweek proposal”
referred to what had been set forth in the compilation
document.
The union representatives argued that the parties were not at
impasse and told the employer representatives that they had
advanced proposals in every meeting, and were prepared to do
so going forward. Saint Hilare noted that the Employer had
never responded to the Union’s October 24, 2007 non-
economic proposal.25 Jasinski replied that the Union did not
want a contract; that the only thing they cared about was
information and that the Union was unwilling to move beyond
industry standards. The Union responded that even its initial
proposal did not seek such industry standards and that the most
recent economic proposal lagged in years behind the Tuchman
Agreement.26
There was a clarification of when part-time employees
working between 20 and 30 hours per week would see their
benefits reduced. The Emplolyer clarified that its proposal to
raise this threshold applied prospectively only, and did not
affect current employees. The parties then discussed the
difficulties with staffing. Saint Hilare noted that the facility’s
employee census had dropped from 121 to 94 employees and
asked why that was the case. Jasinski attributed this to typical
turnover and denied there was a staffing issue. Saint Hilare
handed the employer a copy of the employee roster which had
been provided on May 14 which indicated with specificity
those employees who appeared to qualify to receive health
insurance and who were not so designated. Jasinski took the list
and told Saint Hilare that the Employer would research the
issue and get back to the Union.

25 Jasinski testified that there was no subsequent discussion of the
Union’s October 24 proposal because the Union had insisted that the
parties negotiate economics and the parties did not have further discus-
sions about the language issues.
26 As McCalla explained, the Union’s most recent economic pro-
posal comes to minimums of $10 for grade 1 and $11 for CNAs in
2011. In the Tuchman Agreement, those rates were reached in 2008. In
addition, the proposed scale for the initiation of dependent health cov-
erage differs from the Tuchman Agreement insofar as that contract
provides for full dependent coverage, with premiums fully paid by the
Employer. The Tuchman Agreement additionally affords employees
greater paid sick leave, vacation, and holidays.
The Union again asked about the facility’s use of agency
employees. According to Saint Hilare, it was at this time that
Jasinski acknowledged that the facility had, in fact, used agency
employees and Saint Hilare asked for specific information
about such usage. McCalla testified, and his bargaining notes
show, that Jasinski told the Union to put their request in
writing. The Union also relayed complaints from the members
about the Employer’s use of students. They stated that unit
employees were complaining that they had to take extra time to
train these workers, as they did with agency employees.
At this point in time, the Union caucused to review the
information they had obtained and consult with the bargaining
committee. Upon their return they were informed that, due to a
family emergency, Jasinski would have to leave. As he was
leaving, Saint Hilare told Jasinski that he had a proposal to give
the Employer and Jasinski told Saint Hilare to fax it to him.
Saint Hilare testified that he did not do so inasmuch as the
Union’s practice is not to conduct bargaining in the absence of
employee participation.
Jasinski offered little testimony about what occurred at this
meeting, other than to state that the Union did not put forth any
proposals and to note that the Union brought up subjects, such
as the students, that had not previously been discussed in
bargaining.
34. Subsequent information requests and correspondence
On July 23, 2008, Saint Hilare wrote to Jasinski asking for
information regarding agency usage and requesting further
bargaining. His letter is as follows:

I am writing to follow-up our discussion on July 17,
2008 during the Castle Hill bargaining regarding
information on agency workers as well as the number of
employees who do not have health insurance coverage. As
explained, the Union will need to formulate proposals.
This letter also is a follow-up to the July 7, 2008 regarding
the Union’s outstanding information requests for Bristol
Manor, Castle Hill and Harborview bargaining
At the Castle Hill bargaining on July 17, 2007,
employer conceded after having repeatedly denied using
agency workers, that agency workers have, in fact, been in
used at Castle Hill to provide temporary staff. Based on
that, the Union requests:
1. Names of all agencies used by the employer to
provide temporary staff;
2. Copies of invoices received from each agency
showing the names, number of hours worked, rate(s) billed
and job title for each agency employee provided to the
employer during the periods January 1, 2008 through July
22, 2008.
3. At bargaining, Castle Hill also agreed to provide a
seniority list of the employees with explanation on why
some employees who are working the required number of
hours do not have health insurance coverage. You recall
that at that session, the Union provided a list of names
with question mark beside names for employees who do
not have health insurance coverage.
Please provide the information listed above as well as
the outstanding information described in my July 7 letter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1176
Please also let me know which dates you are available to
bargain for Castle Hill, Harborview and Bristol Manor.

According to the testimony of the union witnesses, there was
no response to this letter.
35. Subsequent telephone discussions
Saint Hilare testified that after the parties’ final meeting on
July 17, he called Jasinski’s office on several occasions and
spoke with him. As Saint Hilare testified, in one of these
discussions Jasinski asked what the Union was trying to
achieve. Saint Hilare replied that the Union wanted the same
things he had stated at the initiation of bargaining, and that they
were not talking about the moon or $20 per hour. Jasinski
suggested that the Union forego employer contributions to the
pension and alliance funds. Saint Hilare replied that he could
not bargain with Jasinski on the phone, requested that he come
to the table and stated that the Union had a proposal to make.
Jasinski told Saint Hilare to send it to him. Saint Hilare told
Jasinski that he would not do that and that he would not bargain
with Jasinski in the absence of the members. Saint Hilare
testified that at the time of the July 17 meeting, the Union had
a written proposal to present, but had not yet shown it to the
members. He had planned to discuss this proposal at a caucus
and then bring it to the Employer, but the meeting ended before
he could do so. When asked whether anything prevented the
Union from caucusing with the bargaining committee and
discussing that proposal with Respondent after Gold and
Jasinski left the meeting, Saint Hilare replied: “As I mentioned
to you, we haven’t done that and bargaining face-to-face as we
always do. So why should we do it now, especially when
management put the final offer on the table, we have so many
details, so many questions, why should I do that by phone, why
should I do that?” Saint Hilare then testified that he asked
Jasinski for an “off the record” meeting and Jasinski initially
assented but when he found out who would be present, declined
to meet. In other respects, as Saint Hilare testified, Jasinski
never expressly refused to meet, he simply did not respond to
the Union’s requests for additional bargaining dates.
C. Stipulations and other evidence as to changes in
terms and conditions of employment
At the hearing, the parties entered into certain stipulations
regarding the implementation of Respondent’s final offer. In
particular, the parties stipulated that the Employer stopped
paying daily overtime; that there was a partial implementation
of a unform allowance as to certain employees and a no-frills
system consistent with the final offer was implemented. In
addition, Jasinksi testified that the Employer has given its
employees the wage increases set forth in the final offer and
that Respondent advised the Union that the terms relating to
health insurance eligibility would be implemented prospec-
tively, and that no part-time employee currently receiving such
benefits would lose them.
D. The Alleged Failure to Remit Pension Contributions
1. The amendment to the complaint
The charge in Case 22–CA–28152, as originally filed on
December 3, 2007, alleges, in relevant part, that: “[s]ince in or
about July, 2007, the above named Employer . . . delayed,
failed and refused to furnish information to the Union necessary
to collective bargaining negotiations.”27
On April 9, 2009, the Union amended that charge to add the
following allegation: “Since in or about July 2007, the above-
named Employer unilaterally failed to make pension fund
contributions without notifying or bargaining with the Union.”
The regional office mailed the amended charge to the
Respondent and its counsel of record on April 10, the following
day. Following an investigation which was conducted during
the course of the procedings in this matter, on May 22, 2009,
counsel for the General Counsel moved to amend the complaint
to allege that since on or about February 1, 2007, the
Respondent unilaterally refused and failed to make pension
fund contributions without notifying or bargaining with the
Union.
At the hearing Respondent objected to the proposed
amendment, arguing that it was barred by the 10(b) statute of
limitations and that it was predicated on a different theory from
the original charge. In its brief, Respondent raises certain
additional defenses to the proposed amendment. In particular,
Respondent argues that only the SEIU National Industry
Pension Fund (the Fund) has standing to raise such a claim and
that the Fund is neither a party to the charge nor to the
collective-bargaining agreement. In this regard, the Respondent
argues that the Union has no right to raise this claim on behalf
of the Fund. Respondent additionally denies the material
allegations of the amendment.
At the hearing, I granted the General Counsel’s motion to
amend the complaint. The evidence adduced with respect to
this allegation consisted primarily of the testimony of Betsy
Blount, who has been employed by the Fund since 2000 in
various positions, together with certain documentary evidence
which was maintained in the Fund’s files, as will be discussed
below.
2. Background
By letter dated November 22, 2002, the Union’s then-
attorney, Richard M. Greenspan, forwarded to the Fund a copy
of the pension appendix executed by the parties in conjunction
with the 2002 MOA. Beginning in about August 2002,
contributions were remitted. However, payments for employees
of Respondent were made by three entities. Castle Hill made
contributions for the dietary employees of the facility.
Contributions for the certified nurses aides were drawn on the
checks of an entity called Healthcare Staffing & Consultants,
LLC (Healthcare). Contributions on behalf of the recreation
employees were drawn on the checks of Sunshine Recreation,
LLC (Sunshine).
Some 4 years later, on November 5, 2006, SEIU
International Representative Larry Alcoff sent an e-mail to
Fund Collections Manager Jack Salm about remittances for the
Castle Hill employees:

27 There is another allegation, contained in the charge as filed in De-
cember 2007, that the Employer falsely presented to the Union a docu-
ment purporting to represent existing terms and conditions of employ-
ment, which is not a subject of the instant complaint.
CASTLE HILL HEALTH CARE CENTER 1177
Jack,

I want to follow up on the list of pension issues in NJ
that we discussed on the phone last week:
Omni Mgmt group (Castle Hill, Bristol Manor,
Palisades and Harborview)—The Employer is a party to 4
separate CBA’s with the Union. The Employer has made
contributions for the past 4 years pursuant to those CBA’s;
however the Pension Fund failed to deposit those checks.
The Employer provided a letter to the Pension Fund over 1
year ago stating that the nursing homes were the parties to
the agreement and the Employer. The Pension
contributions were made by their contracted payroll
operations. We requested that the Pension Fund deposit all
checks and give members appropriate service and vesting
credit.
We have not received any reports or copied
correspondence (whether to the Employers or legal
documents) to date. Please reply.

On November 8, 2006, Sahm replied to Alcoff’s e-mail with
the following inquiries:

In item three of your e-mail, you mention Omni
Management Group. The checks we have are from
Healthcare Staffing & Consultants LLC and Sunshine
Recreation, LLC. A couple of questions-
1. Who are the CBA’s with—Omni Management
Group or the individual properties?
2. Please forward copies of the four (4) CBA’s that
you mentioned in your e-mail
3. Is Heathcare staffing now out of the picture?
As for item 2 of your e-mail, we are in the process of
putting toether all of the information for our Collection
Counsel. We will keep you apprised of all developments.

Later that day, Alcoff replied:

We will send you the 4 most recent MOUs with Bristol
Manor, Harborview, Palisades and Castle Hill. Healthcare
Staffing is not relevant.
There is no record evidence of any further
communications between Alcoff and Sahm regarding
these matters.
3. The alleged failure to remit contributions
In May 2007, Blount was promoted to the position of Fund
collection manager.28 Prior to that time she served as an
assistant manager in the Fund’s processing department. As
Blount testified, after an employer and a local union execute a
collective-bargaining agreement, the contract is submitted to
the Fund for final approval to ascertain that it conforms to Fund
requirements and is then submitted to Fund counsel for final
approval. Once such approval is granted, the collection
department establishes a computer file with an employer
number and site number. If the contract is not approved, it is
returned to the parties with a letter indicating the language
necessary for compliance with Fund requirements.

28 She currently serves as the Fund’s benefits processing manager.
Blount testified that after she became collection manager,
she was assigned to investigate a group of checks that the Fund
did not have contracts for and determine who they belonged to.
These were checks drawn on the accounts of Healthcare and
Sunshine. As Blount testified, because Healthcare and Sunshine
were not parties to collective-bargaining agreements, files had
not been created for them in the Fund computer database and
they were not recognized as employer participants.
Thereafter, the Fund trustees determined that, inasmuch as
Healthcare and Sunshine were not parties to collective-
bargaining agreements authorizing the Fund to accept their
contributions, the remittances should be returned. Accordingly,
on October 10, 2008, Blount wrote separately to Healthcare and
Sunshine as follows:

Please find enclosed checks issued by [Healthcare]
[Sunshine] for the period of August 2003 through January
2007.
Unfortunately, the SEIU National Industry Pension
Fund (NIPF) has been unable to process these payments
because we have not reveived a signed copy of the
Collective Bargaining Agreement (CBA) between
[Healthcare] [Sunshine], and SEIU Local 1199 NJ which
requires contributions to the fund. The NIPF has made
numerous attempts to Local 1199NJ to obtain a signed
copy of the CBA, which have been unsucessful.
In accordance with a recent Board of Trustee decision,
to return contributions to employers without an acceptable
CBA on file with the Fund within 6 months or more after
the receipt of the first contribution payment, we are
returning and refunding all checks that have been received
from [Healthcare] [Sunshine]. In addition, most of the
checks are older than 6 months and would have to be
reissued upon receipt of the acceptable CBA.
Please be advsied that we will not accept any future
payments from [Healthcare] [Sunshine] until we receive
an acceptable signed copy of the CBA. Lastly, please keep
in mind that once an acceptable CBA is received late fees
and interest wil be assessed on contribution payments
older than 30 days.

A copy of this letter was sent to the SEIU Local 1199NJ
President Milly Silva.
As Blount testified, after this letter was sent, Silva and Union
Attorney Ellen Dichner contacted her to discuss why the Fund
had decided to return the contributions from Healthcare and
Sunshine. A conference call was scheduled on two prior
occasions, but did not occur until February 9, 2009.
On February 9, a telephonic conference call was held among
Blount, Silva, Dichner, and other Fund personnel. Blount
explained that the Fund did not have signed contracts with
Healthcare and Sunshine and that therefore, the pension
contributions were returned to these vendors. Silva and Dichner
maintained that the local union had sent a copy of the most
recent contract (the 2002 MOA) for Castle Hill and urged the
Fund to search their files for the document.
Blount testified that at that point she undertook an
investigation and learned that Healthcare and Sunshine had
been contributing for CNAs and recreation employees,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1178
respectively, at Castle Hill. She additionally learned that both
Healthcare and Sunshine had ceased making contributions to
the Fund as of January 2007.29
The last check sent by Healthcare, dated May 9, 2007, is for
contributions applicable to January of that year. Similarly, the
last check sent by Sunshine, dated May 8, 2007, is for January
2007 contributions to the Fund. Both checks are attached to
rosters of covered employees which reference the Employer by
name. For example, the relevant attachment to the Sunshine
check bears a caption which reads: “JAN 2007 UNION
REPORT CASTLEHILL SUN.”30 Similarly, attached to the
Healthcare check was an employee roster entitled: “JAN 2006
UNION REPORT CASTLEHILL HSC.”31 Blount offered no
explanation as to why these reports would not have, or did not,
assist the Fund in ascertaining which employees the
contributions were being made on behalf of. Indeed, when
questioned by counsel for the General Counsel, she offered the
following seemingly contradictory and, frankly, confusing
testimony:

Q. [BY COUNSEL FOR THE GENERAL COUNSEL]: And
after you sent out [the October 10, 2008 letter]—Let me
ask it this way. When did you find out what employees
Health Care Staffing was contributing for:
A. Once we received their reports.
Q. And when was that?
A. 2007. The end of 2007.

Blount later testfied as follows:

Q. And prior to February 2009, did you know the
employees that Sunshine Recreation was contributing for?
A. Only based on the report that we had back from
January 2007.
Q. Did you know whether Sunshine was contributing
for any—Prior to February, did you know whether or not
they were contributing for any employees of Castle Hill?
A. No.

At some point after the February 2009 conference call, the
Fund advised the Union that the Employer had ceased making
contributions after January 2007. The Union was further told
that the Fund had reversed its decision to refund contributions
to Healthcare and Sunshine and that both vendors would be set
up in the Fund’s system pursuant to the 2002 MOA.
On April 9, Fund Collection Manager Miriam Gibbs wrote to
Healthcare and Sunshine advising them as follows:

A letter was sent to you dated October 10, 2008,
notifying you that the SEIU National Industry Pension
Fund was unable to process your payments due to non
receipt of a signed collective bargaining agreement. . . .
We have subsequently received signed collective
bargaining agreements, enabling the Fund to properly

29 Blount offered no explanation of why she did not become aware of
this in October 2008, when she returned the remittances to Healthcare
and Sunshine.
30 The date in question originally read 2006, but was crossed out and
2007 written in.
31 The designation of 2006 appears to have been an error.
setup your account. The initial date of contribution is
September 1, 2002. Contributions are presently due for
September 1, 2002 through March 31, 2009. Additionally,
remittance reports are due for the following periods:
September 2002 through July 2003 and January 2007
through March 2009.
Although the National Industry Pension Fund will
accept the collective bargaining agreement for the term of
July 25, 2002 thorugh July 24, 2007, any new agreements
requiring contributions to the National Industry Pension
Fund must adhere to the terms of the enclosed Bargaining
Basics Manual. For example:
1. Pension contributions are required on all
bargainining unit employees from date of hire or no later
than 90 days of employment and all other employees (such
as temporary, casual, on-call, extra, seasonal and no frill)
are covered after 1,000 hours of employment.
2. The CBA must specify the pension contribution rate
as a flat dollar amount or a percentage of pay. The
minimum contribution rate is $0.15 per hour for all new
contracts and renewals with effective dates after July 1,
2004.
3. The CBA must clearly state that the pension
contributions are to be remitted to SEIU National Industry
Pension Fund.
4. All employers must agree to be tound by the NIPF
Trust Agreement.

There was no response to these letters.
III. ANALYSIS AND CONCLUSIONS
A. The Alleged Failure to Provide Information
The complaint alleges and the General Counsel contends that
the following information sought by the Union is presumptively
relevant or, alternatively, that its relevance has been demon-
strated: documents showing overtime hours worked by bargain-
ing unit employees on a quarterly basis in 2006 and 2007,32 the
names of no-frills employees, the names of agencies used by
Respondent for temporary staff and copies of invoices showing
names, number of hours worked, rates billed and job titles for
each agency employee, copies of work schedules, OSHA injury
and illness reports for 2005, 2006, and 2007, copies of Medi-
caid cost reports for 2005 and 2006 and per employee monthly
premium cost for employer-funded single health insurance. The
General Counsel further contends that, since October 19, 2007,
the Employer has either failed and refused or unlawfully de-
layed in providing such information to the Union. As discussed
in further detail below, Respondent contends that it sufficiently
complied with the Union’s information requests to allow it to
meaningfully bargain and that the Union’s repeated requests
were interposed in bad faith, for the purpose of delay and to
forestall a valid bargaining impasse.

32 The complaint additionally alleges a failure or delay in providing
documents showing “regular hours of work.” Neither the General
Counsel nor the Union make reference to any such allegation other than
the alleged failure to provide employee work schedules, which is dis-
cussed below.
CASTLE HILL HEALTH CARE CENTER 1179
1. Applicable legal principles
It is well settled that an employer’s duty to bargain in good
faith with the bargaining representative of its employees en-
compasses the duty to provide information needed by the bar-
gaining representative to assess proposals and claims made by
the employer relevant to contract negotiations. NLRB v. Acme
Industrial Co., 385 U.S. 432, 435–436 (1967). NLRB v. Truitt
Mfg. Co., 351 U.S. 149, 153 (1956).
Information pertaining to the terms and conditions of em-
ployees in the bargaining unit is presumptively relevant, and
must be provided upon request, without need on the part of the
requesting party to establish specific relevance or particular
necessity. Iron Workers Local 207 (Steel Erecting Contrac-
tors), 319 NLRB 87, 90 (1995). In such an instance, the em-
ployer bears the burden of showing a lack of relevance. AK
Steel Co., 324 NLRB 173, 183 (1997); Samaritan Medical
Center, 319 NLRB 392, 397 (1995). Moreover, a union may
rely upon the presumption of relevance of information pertain-
ing to employees within the bargaining unit and has no further
obligation to explain its significance, unless and until the em-
ployer establishes legitimate affirmative defenses to the produc-
tion of the information. Beverly Health & Rehabilitation Ser-
vices, 346 NLRB 1319, 1326 (2006); River Oak Center for
Children, 345 NLRB 1335, 1336 (2005). See also Quality
Building Contractors, 342 NLRB 429, 430 (2004), quoting
Commonwealth Communications, 335 NLRB 765, 768 (2001):
“When a union seeks information pertaining to employees
within a bargaining unit, the information is presumptively rele-
vant to the union’s representational duties, and the General
Counsel may establish a violation for the employer’s failure to
furnish it without any further showing of relevancy.”
Requests for matters outside the bargaining unit require a
demonstration of relevance. Shoppers Food Warehouse Corp.,
315 NLRB 258, 259 (1994); Ohio Power Co., 216 NLRB 987,
991 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976). The Board
uses a broad, discovery-type standard in determining the rele-
vance of requested information. Thus, the burden is not an ex-
ceptionally heavy one, requiring only that the desired informa-
tion would be of use to the party in carrying out its statutory
duties and responsibilities. Certco Distribution Centers, 346
NLRB 1214, 1215 (2006); Shoppers Food Warehouse, supra;
Richmond Health Care, 332 NLRB 1034, 1035 (2000) (poten-
tial or probable relevance is sufficient to give rise to an em-
ployer’s obligation to provide information). A party has satis-
fied such a burden when it demonstrates a reasonable belief
supported by objective evidence for requesting the information.
However, the Board has also held that, as to nonunit informa-
tion for which relevance must be demonstrated, the General
Counsel must present evidence either that the union demon-
strated the relevance of the nonunit information or that the rele-
vance of the information should have been apparent to the re-
spondent under the circumstances. Disneyland Park, 350
NLRB 1256, 1258 (2007). The Union’s explanation of rele-
vance “must be made with some precision; and a generalized,
conclusory explanation is insufficient to trigger an obligation to
supply information.” 350 NLRB at 1258 fn. 5 (citations omit-
ted).
The duty to furnish information requires a reasonable good-
faith effort to respond to the request as promptly as circum-
stances allow. Good Life Beverage Co., 312 NLRB 1060, 1062
fn. 9 (1993). “An employer must respond to the information
request in a timely manner” and “[a]n unreasonable delay in
furnishing such information is as much of a violation of Section
8(a)(5) as a refusal to furnish the information at all.” Amersig
Graphics, Inc., 334 NLRB 880, 885 (2000); see also Newcor
Bay City Division, 345 NLRB 1229, 1237 (2005) (and cases
cited therein).
With regard to the Union’s information requests generally,
Respondent argues that the Union propounded such requests on
Castle Hill for reasons other than to move the bargaining proc-
ess forward. In particular, Respondent argues that the Union’s
information requests were made to avoid meaningful bargain-
ing and in a futile attempt to avoid reaching impasse. In support
of this argument, Respondent contends that the Union repeat-
edly demanded information which had already been received,
which was readily attainable or wholly unnecessary to the bar-
gaining process. Respondent notes that the Union was able to,
and did, make its initial “comprehensive” proposal relying on
the information already within its possession, and did not re-
quire any further information prior to putting forth subsequent
proposals. Respondent additionally argues that it sufficiently
complied with the Union’s repeated information requests, that it
provided information to the Union on no fewer than eight occa-
sions and, further, that any limited delay in providing informa-
tion is not unlawful.
In support of its contentions, Respondent relies upon ACF
Industries, 347 NLRB 1040 (2006). There, the Board found
that the union’s information request was purely tactical and
submitted solely for delay and to avoid impasse where the un-
ion requested the information after months of extensive bar-
gaining, after the contract’s expiration, after the union’s rejec-
tion of the employer’s final offer, and after the respondent de-
clared it had nothing left to offer.33 By contrast, here, the initial
information request was made prior to the expiration of the
2002 MOA and before bargaining commenced. Moreover, here
the Union reiterated its requests throughout bargaining, well
prior to Respondent’s declaration of impasse and final offer.
Similarly, in Sierra Bullets, 340 NLRB 242, 244 (2003), also
cited by the Employer, the Board concluded that the pendency
of an information request relating to an overtime proposal did
not preclude a finding of impasse where the information request
was not made until the 17th bargaining session, the proposal
had not been made until the 16th session, the parties had been
previously concentrating primarily on other core issues in bar-
gaining and there was no convincing argument that the infor-
mation would have broken a deadlock over these other core
issues. Again, the circumstances in Sierra Bullets are not simi-
lar to those involved here, where, as both Saint Hilare and
McCalla testified, the Union sought information throughout the
bargaining process which was directly tied to proposals or an-
ticipated counterproposals regarding such matters as the pro-

33 The Board additionally found that the parties had reached a good-
faith impasse, and the union showed no interest postimplementation
bargaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1180
posed elimination of daily overtime, a proposed increase in the
allowable number of no-frills employees, staffing levels, medi-
cal insurance, and the health and safety of employees in the
workplace.
Respondent argues that the circumstances of the instant case
are “strikingly similar” to those presented in United Engines
Inc., 222 NLRB 50, 55–56 (1976). There, the respondent was
charged with a delay in transmitting certain relevant data which
the union sought in connection with bargaining negotiations
until it was informed that the union had filed unfair labor prac-
tices with the Board. The administrative law judge found that
the respondent had not violated the Act. In that case, the re-
spondent never raised any objection to disclosure of the infor-
mation sought by the union, characterized as “copious” and
provided the bulk of it within 1 month of the Union’s request.
The only outstanding item was the information related to the
employer’s retirement plan, which the respondent said would
covered in a booklet and provided as soon as it was received.
The booklet was then provided. Thereafter, as the judge found,
the respondent “invited further requests” by the Union for addi-
tional information. Once such requests were made, the informa-
tion was promptly furnished.34
In the instant case, while it appears that the Union did re-
quest a great deal of information from the Employer initially,
and subsequently, there is no specific evidence that any alleged
delay in providing information was due to the volume of that
request, or Respondent’s need for time to assemble it or receive
documentation relative to such demands. Moreover, the record
fails to establish that Respondent raised such objections to the
Union. Nor has Respondent propounded such an argument
here. Rather, as set forth above, Respondent consistently took
the position either that it had fully complied with the Union’s
request or that the information sought was unnecessary for the
Union to bargain.
As the above-cited cases demonstrate, Respondent is not
empowered to make a unilateral determination that presump-
tively or otherwise relevant information sought by the Union is
unnecessary or irrelevant to bargaining or the performance of
the Union’s statutory duties. To the contrary, Respondent’s
arguments in this regard are unavailing. Had the information
sought by the union been provided in a timely fashion, it is
reasonable that it could have been used to determine strategy
and tactics in the negotiations: “Priority of issues, consideration
of bargaining strategy as to trade-offs of economic and non-

34 In support of its contention that any delay in providing the Union
with information was not unlawful, Respondent also relies upon Good
Life Beverage Co., supra and Union Carbide Corp., 275 NLRB 197
(1985). In Good Life Beverage Co., the Board found that a 5-1/2-
month delay in providing information was not unlawful where the
information sought raised confidentiality concerns and the employer
sought to discuss the matter to reach an accommodation with the re-
questing union for mutually agreeable protective conditions. Here,
Respondent has pointed to no such circumstances. In Union Carbide,
which dealt with a delay of over ten months, there was no showing that
the requested information, which was voluminous, could have been
produced any sooner, that there was any urgency in fulfilling the re-
quest and that it involved a matter currently or forthcoming in any
negotiations between the parties.
economic issues, even the nature and extent of the bargaining
posture on the various issues might well have been impacted
upon by such information and the need therefore would be
current and present throughout the negotiations.” Bryant &
Stratton Business Institute, 321 NLRB 1007, 1014 (1996).
Moreover, as the courts have noted, the fact that a contract has
been negotiated without the requested data does not render the
information not relevant. See NLRB v. Fitzgerald Mills Corp.,
313 F.2d 260, 266 (2d Cir. 1963); cert denied 375 U.S. 834. In
NLRB v. Yawman & Erbe Mfg. Co., 187 F.2d 947, 949 (2d Cir.
1941), the court stated:

Nor is our determination that the information was relevant af-
fected by the subsequent execution of a contract without dis-
closure. The most that can be inferred from the Union’s action
is that the advantages of a contract in hand outweigh those
which the Union might later obtain when all relevant informa-
tion would be available to it.35

With the foregoing standards in mind, I will now evaluate
the various information requests made by the Union and the
Respondent’s responses thereto.
2. Overtime hours worked by each employee on
a quarterly basis
From the outset, even prior to the initiation of bargaining, the
Union sought information showing the overtime hours for each
employee on a quarterly basis for the years 2006 and 2007.
Information regarding employee overtime has been found to be
presumptively relevant. U.S. Information Services, 341 NLRB
988 (2004) (citing Blue Cross & Blue Shield of New Jersey,
288 NLRB 434, 436 (1988) (total hours and overtime hours
worked “by each unit employee” is presumptively relevant). In
its July 27, 2007 and January 28, 2008 letters, Respondent
claimed it provided such information. The record establishes,
however, that no overtime information was provided to the
Union until April 1, 2008, where it was stated that “[i]t is fair to
estimate that overtime hours typically [range] from 100–300
hours per week over the previous year.” The Union then ad-
vised Respondent that that was not the information which had
been requested. Thereafter, on May 28, 2008, Respondent pro-
vided total overtime hours for each quarter of 2006 and 2007
but did not provide the information for each employee. On June
10, the Union reiterated its request for “overtime hours for each
employee.” On June 17, 2008, Respondent responded with the
“the approximate average overtime worked” by employees for
each quarter of 2006 and 2007.
Aside from its presumptive relevance, it is clear from the re-
cord that such information took on additional significance in
light of the Employer’s proposal to eliminate daily overtime.
Thus, the Union has shown that this information was relevant
and necessary to enable it to determine the impact the Em-

35 Moreover, as the forgoing Board precedent makes clear, the Union
is entitled to information not only to assist it in contract negotiations,
but in connection with a full range of statutory duties. Thus, even if I
were to find that the Union could bargain without the information it
sought, that would not be dispositive of Respondent’s obligation to
furnish it in a timely manner, particularly insofar as the information
relates to bargaining unit employees.
CASTLE HILL HEALTH CARE CENTER 1181
ployer’s workweek proposal would have on the bargaining unit,
both in relation to individual employees and to the unit as a
whole.
I note that Respondent has advanced no argument that pro-
viding this information would have been unduly burdensome or
that it did not exist. Rather, it is apparent that Respondent did
maintain such information inasmuch as it was able, in May
2008, to provide overtime hours for each quarter of 2006 and
2007 for the bargaining unit as a whole, and compute average
overtime hours thereafter. In short, Respondent has advanced
no convincing rationale for its continuing refusal to provide
such information. Accordingly, I find that by failing and refus-
ing to provide the Union with overtime hours worked by each
bargaining unit employee on a quarterly basis in 2006 and
2007, as alleged in the complaint, Respondent has violated
Section 8(a)(1) and (5) of the Act.36
3. The identification of no-frills employees
In its letters of April 25 and October 19, 2007, the Union re-
quested that the Employer identify all no-frills employees.37 On
January 29, 2008, Jasinski wrote that the information had al-
ready been provided. On April 1, 2008, Respondent told the
Union that there were no such employees in that category.
Thereafter, on May 14, 2008, the Employer provided an up-
dated employee list to the Union. That list named one employee
as a no-frills employee. The employee roster additionally
showed that this employee had been hired on October 9, 2006,
so a question may fairly be raised as to whether Jasinski’s re-
sponse on April 1 was mistaken or false. I note that Respondent
has failed to explain why it had previously told the Union that
there were no no-frills employees when one was apparently on
its payroll. Thereafter, in its letter of June 17, 2008, Respondent
continued to maintain that there were no employees in the no-
frills category. Thus, the information provided to the Union on
this issue was contradictory, at best.
The issue of whether bargaining unit employees have agreed
to forfeit contractual benefits in exchange for an increased
wage rate, and who has agreed to do so, is presumptively rele-
vant. Moreover, the record demonstrates that the issue of
whether there were no-frills employees was related to various
matters under consideration during negotiations. As noted
above, the Employer had proposed increasing the limit on such
employees from 10 to 20. As both Saint Hilare and McCalla
testified, the Union had questions about why this proposal had
been made if, in fact, no employees were currently in the no-
frills category. Moreover, the employee rosters given to the
Union during bargaining indicated that a number of employees,
significantly in excess of 10, did not have health insurance. At
the April 19 bargaining session the Union sought to review the
most recent employee roster. At that time, according to Saint
Hilare, a number of employees without insurance appeared to
have the necessary hours and tenure to qualify. In response, the

36 Saint Hilare’s June 10, 2008 letter updates this request for the pe-
riod from June 1, 2007, to May 31, 2008. There is no evidence that the
overtime information for this time period has been provided.
37 This request had also been set forth in the Union’s April 25, 2007
information request.
Employer offered generalized, speculative responses as to why
employees might not have health insurance.
Thus, the record establishes that the Employer responded to
the Union’s October 19, 2007 information request on April 1,
2008. As an initial matter, there is at best an apparent and un-
explained delay of over 5 months in responding to the Union’s
request for information regarding this matter.
Even assuming, however, that Respondent had told the Un-
ion at an earlier point in time that the facility did not have any
no-frills employees,38 the record demonstrates that such infor-
mation was incorrect. Accordingly, I find that Respondent de-
layed and then failed to provide accurate information regarding
the no-frills status of its employees in violation of the Act.
4. The use of agency employees
The Union’s April 25 and October 19, 2007 letter sought the
names of all agencies used by the Employer to provide tempo-
rary staff and invoices showing the names, number of hours
worked, rate(s) billed and job title for each employee provided
to the Employer during the period from January 1, 2006,
through March 31, 2007. The Union reiterated its request for
information regarding the use of agency employees on several
occasions thereafter.39 The Union had anecdotal evidence, com-
ing from employees, that agency workers were being used dur-
ing the period of time the parties were bargaining. Saint Hilare
made reference to this anecdotal information in his February
14, 2008 letter to Jasinski. Such hearsay evidence is sufficient
to support an information request. Magnet Coal, Inc., 307
NLRB 444 fn. 3 (1992), enfd. mem. 8 F.3d 71 (D.C. Cir. 1993).
The record further establishes that at a bargaining session on
March 13, 2008, Saint Hilare informed Respondent that the
Union was aware that the Employer was using agency employ-
ees.
According to McCalla and Saint Hilare, the Employer had
repeatedly denied using agency workers. Moreover, in corre-
spondence dated January 29, 2008, Jasinski stated, “The facility
does not utilize any agencies to provide temporary staff.” This
assertion was disputed by Saint Hilare in his February 14 letter
where he maintained that the Union had information from its
members that agency employees were being used. Then, on
April 1, 2008, Jasinski wrote: “Agency Usage: None as of April
1, 2008.” On June 17, 2008, Jasinski advised the Union, “This
facility did not utilize agency personnel from March 2007
through the present.” According to the Union, it was only when
the parties met on July 17, 2008, after the final offer was im-
plemented, that Respondent acknowledged that the facility had
used agency workers.40 On July 23, Saint Hilare then made a

38 Jasinski offered generalized testimony that he repeatedly told the
Union that there were no no-frills employees and the Union did not
believe him. Respondent has pointed to no specific evidence as to any
such representation, however, prior to the April 1, 2008 letter.
39 February 14, April 9, June 10, and July 7 and 11, 2008.
40 I do not credit Jasinski’s testimony that he told the Union in about
November 2007 that due to a threat of a work stoppage the facility had
contracted agency employees. The weight of the evidence, including
the written communications between the parties, does not support this
testimony, but rather refutes it. Moreover, I do not believe that the
Union would have simply accepted Jasinski’s representations at face
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1182
further written request for specific information which, to date,
has not been replied to.
The information requested is clearly relevant to the Union’s
concerns, as bargaining representative, of the nature and extent
of the use of workers outside the unit who are being used to
supplant the unit work force. Lenox Hill Hospital, 327 NLRB
1065, 1098–1069 (1999). Information concerning the identity
of such workers, their classifications, wages and the length of
time employed at the facility are relevant to determine what
Respondent was willing to pay for temporary employees to
perform the same work as that performed by unit employees.
Similarly information regarding the names of the agencies used
by Respondent is relevant as it provides an independent basis
for the Union to conduct an investigation regarding the extent
to which unit work is being supplanted.41 Moreover, the rele-
vancy of such information would have been apparent to the
Respondent, and I note that Respondent has never contended
otherwise.
Respondent has argued that it provided the Union with the
necessary information regarding agency usage and that it com-
plied with the Union’s written request which sought such in-
formation for a limited period of time, i.e., January 1, 2006,
through March 31, 2007. Respondent additionally argues that
any further requests were made in bad faith and that the Un-
ion’s failure to file a grievance regarding agency usage demon-
strates that this issue was of no relevance to contract negotia-
tions.
While it is the case that the Union’s initial request for in-
voices showing the name, work hours, compensation rate, and
job title of each agency employee was for a particular period of
time, the record shows that the Union subsequently sought
updated and contemporaneous information, including the
names of agencies used to provide temporary employees.42
Moreover, Jasinski’s various responses to the Union demon-
strate that he understood that to be the case.43 Moreover, the
record contains testimony regarding these continuing demands
for information as well as the responses offered by Respondent.
Thus, I find that the issue of the Respondent’s continuing fail-
ure to provide such information was fully litigated at the hear-
ing. See Pergament United Sales, Inc., 296 NLRB 333 (1989),
enfd. 920 F.2d 130 (2d Cir. 1990).
Further, Respondent’s arguments pertaining to the Union’s
failure to file grievances regarding agency usage are unavailing.
At all relevant times there was no collective-bargaining agree-

value without documenting them and immediately demanding further
information of the sort outlined in its October 19, 2007 letter.
41 As McCalla and Saint Hilare testified, the use of agency employ-
ees is additionally related to the whether the facility is properly staffed.
Their testimony that the Union brought employees’ complaints about
staffing to the Employer’s attention is unrebutted.
42 See, for example, Saint Hilare’s letters of June 10 and July 23,
2008. In addition, the record establishes that Saint Hilare raised the
issue of the current use of agency employees at the bargaining table.
43 As noted above, on January 29, 2008, Jasinski wrote that the facil-
ity “does not” utilize agencies to provide temporary staff; On April 1,
Jasinski wrote “None as of April 1, 2008,” and on June 17, Jasinski
advised the Union that the facility did not utilize agency personnel
“from March 2007 through the present.”
ment in effect and, moreover, there is no evidence that the use
of agency personnel is contractually proscribed.
Apart from the hearsay evidence offered by McCalla and
Saint Hilare regarding Respondent’s use of agency employees,
the General Counsel adduced independent, probative evidence
to show that the facility employed agency personnel from Oc-
tober 2007 to April 2008, a period of some 6 months during
which the parties were bargaining and this issue was repeatedly
raised by the Union. During this period all of the representa-
tions made by Respondent were contrary to the actual practice
occurring at the facility. Accordingly, I find that Respondent’s
continuing failure to provide accurate information regarding the
use of agency employees as requested by the Union on October
19, 2007, and at various times thereafter, constitutes an unlaw-
ful failure to provide information in violation of Section 8(a)(1)
and (5) of the Act.
5. Work schedules
The complaint alleges that the Employer failed and refused
or, alternatively, delayed in providing employee work sched-
ules to the Union. In his April 25 and October 19, 2007 letters,
and at various other times throughout bargaining, Saint Hilare
requested such information for the periods of October through
December 2006 and January through March 2007. In letters
dated January 29 and February 20, 2008, Respondent did not
dispute that such schedules were maintained and stated that
they would be provided under separate cover. Both McCalla
and Saint Hilare’s bargaining notes show that the Union also
raised the issue at the bargaining session on April 9, 2008, and
stated that the request was related to the issue of overtime. Sub-
sequently, on May 28, 2008, Respondent provided the work
schedules for the dietary, housekeeping, and nursing depart-
ments for the period beginning in late-December 2007 and
continuing through April 2008.44 Saint Hilare responded that
the submission was not fully responsive to the Union’s request
and did not show all individuals actually working on the floors.
Saint Hilare also made an additional request for the daily
schedules for February 1, 2008, through the present. On June
17, 2008, Jasinski wrote that the Employer had provided the
Union with all the schedules in its possession and that it could
not provide the information in a form which does not exist.45
Such information, as it relates to bargaining unit employees,
is presumptively relevant. Wayneview Care Center, 352 NLRB
1089, 1115 (2008). Moreover, it is relevant to the Union’s in-
vestigation of employee complaints regarding staffing and
agency usage and would be of use to the Union in effectively
generating and bargaining over proposals such matters. Re-
spondent has failed to explain the delay in providing these
schedules to the Union, or to offer any valid explanation of why
it could not fully comply with the Union’s initial request for
their production. Accordingly, I find that Respondent has
unlawfully delayed and refused to provide the Union with work

44 Schedules for the dietary employees were provided through mid-
May 2008.
45 Both the General Counsel and the Union contend that Jasinski’s
assertion that the facility did not maintain schedules in the form sought
by the Union is false, but I find that this issue is not sufficiently ad-
dressed by the record for me draw such a conclusion.
CASTLE HILL HEALTH CARE CENTER 1183
schedules of bargaining unit employees, as alleged in the com-
plaint.
6. OSHA injury and illness records
The Employer maintains OSHA records which document on
the job injuries and illnesses. On October 19, 2007, the Union
requested copies of such records for 2005, 2006, and 2007. In
his January 29, 2008 letter, Jasinski stated that the facility did
not maintain such records. At the hearing, Jasinski acknowl-
edged that this statement had been made in error. The Union’s
request for OSHA logs was renewed in Saint Hilare’s letter of
February 14, 2008. Thereafter, on April 1, Respondent pro-
vided the log for 2007. On April 9, 2008, Saint Hilare reiterated
the Union’s request for years 2005 and 2006. Those records
were provided on May 28.
As the Board has found, workplace safety is a mandatory
subject of bargaining. See Kohler Mix Specialties, 332 NLRB
631, 632 (2000). Accordingly, the Board has found that OSHA
logs and other health and safety information is presumptively
relevant. Honda of Hayward, 314 NLRB 443, 451 (1994).
Moreover, Saint Hilare and McCalla testified that such records
would be of assistance to the Union in formulating its health
and safety proposal. Respondent has failed to rebut the pre-
sumption that this information is relevant or to offer any valid
explanation of why it failed to provide such information to the
Union for more than six months. Accordingly, I find that Re-
spondent unlawfully delayed the production of OSHA logs for
2005, 2006, and 2007, as alleged in the complaint.
7. Medicaid cost reports
On October 19, 2007, the Union requested copies of Medi-
caid cost reports for 2005 and 2006. These reports are volumi-
nous, and there is evidence that the Union’s research depart-
ment makes use of them to obtain general information about the
size, finances, and operations of the nursing home. McCalla
testified that the reports contain information about staffing and
agency usage; however, he appeared unfamiliar with the reports
and could not pinpoint where such information was located.
On January 29, 2008, Respondent replied that the informa-
tion was readily available from the State, and that the Union
had demonstrated that they are already in possession of such
information. On February 14, Saint Hilare wrote: “We under-
stand but do not agree with your position that you need not
provide Medicaid cost reports and other related data because
this information is available from other sources. Kindly furnish
the 2007 report as soon as it is available.” On April 9, Saint
Hilare noted in a letter to Jasinski that the reports had not yet
been received. The documents sought by the Union were pro-
vided by Respondent on May 28, 2008.
Respondent argues generally that the Union did not need this
information to meaningfully bargain. In its brief, Respondent
argues that the Union never demonstrated the relevance of this
information during bargaining.
Respondent’s apparent position, as stated to the Union, that it
was under no obligation to provide the requested data because
it could have been gotten from public records is not supported
by extant Board law. To the contrary, the duty of an employer
to provide relevant information in its possession is not excused
by the fact that it may be obtained elsewhere. Kroger Co., 226
NLRB 512, 513–514 (1976); People Care, Inc., 327 NLRB
814, 824 (1999); Orthodox Jewish Home for the Aged, 314
NLRB 1006, 1008 (1994).
Nevertheless, Respondent did raise the issue of the relevance
of this information during bargaining, albeit belatedly. Inas-
much as the Medicaid cost reports contain, primarily, nonunit
information, I find that there some question about whether the
Union, at any point during negotiations, sufficiently articulated
“with some precision” the basis for its request or demonstrated
why such documents would be relevant to bargaining or to any
of the Union’s other statutory duties and responsibilities. Dis-
neyland Park, supra at 1258. I note that neither McCalla nor
Saint Hilare testified that they stated why the Union was seek-
ing this information from the Employer, and there is no such
explanation in any of the correspondence in the record.46
In Troy Hills Nursing Home, 326 NLRB 1465 fn. 2 (1998),
the Board denied the General Counsel’s Motion for Summary
Judgment as to the respondent’s failure to provide Medicare
and Medicaid cost reports, finding that they appeared to seek
financial information and the union had not demonstrated the
relevance of such information to the employer. Here too, I find
that the General Counsel has failed to meet its burden to show
that the Union established the relevance of the information or
that such relevance would have been apparent to Respondent.
Disneyland Park, supra.47
Accordingly, I do not find that Respondent violated the Act
in delaying their production.
8. Health insurance premium information
On July 27, 2007, the Employer provided the Union with the
total cost for health insurance premiums for 2006 and the first
quarter of 2007. The Union was also provided with the cost to
employees for dependent coverage. What the Union did not
know was the cost to the Employer for its employees’ single
coverage and, therefore, Saint Hilare requested such informa-
tion at the August 28, 2007 bargaining session, and reiterated
this request in his letter of October 19.
On January 29, 2008, Respondent wrote that such informa-
tion had already been provided. By letter dated February 14,
Saint Hilare explained that the information had not been pro-
vided and could not be computed, as Jasinski had suggested, by
dividing the cumulative cost furnished by the number of em-
ployees as there were too many variables. On April 1, 2008,
Respondent provided the monthly insurance premium cost
sought by the Union.
Respondent has argued that the Union did not need the
monthly premium costs because it could have made that deter-

46 Neither Saint Hilare’s February 14 or April 9, 2008 communica-
tions to Jasinski on this issue state why the Union is seeking this infor-
mation and are not sufficient to demonstrate its relevance.
47 Both the General Counsel and the Union argue that the relevance
of the reports lies in the staffing and agency information they contain. I
note, however, that neither McCalla nor Saint Hilare could demonstrate
how and where such information could be gleaned from the reports; nor
does that rationale explain or justify why the reports were sought in
their entirety. In any event, to the extent the Medicaid cost reports
contain relevant information regarding agency use, my finding that the
Employer generally has failed to provide such information subsumes
such arguments.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1184
mination based upon the information that had been previously
been provided in July 2007. Jasinski’s testimony on this matter,
however, failed to demonstrate how this could be done with any
measure of precision.48 More to the point, however, is the fact
that whether or not the Union could have attempted to calculate
the costs in the abstract, under the Board’s standards, it was
entitled to receive such information which would have been of
use to it in arriving at a more exact figure. See Albertsons, Inc.,
310 NLRB 1176, 1187 (1993) (employer’s claim that union
could determine amounts of contributions to trust fund from
plan documents did not excuse the employer’s failure to pro-
vide its own information on the actual contributions made
where this information would allow the union to verify the
information found in the plan).
The Board has held that premiums paid under health insur-
ance plans are wages, and as such, information regarding pre-
miums is presumptively relevant. Nestle Co., 238 NLRB 92, 94
(1978). Further, it is apparent that the cost of employee fringe
benefits is of particular relevance during collective-bargaining
negotiations.
Further, in this case, such information related to an issue
central to the parties during bargaining, i.e., whether the Em-
ployer would (or would not) agree to some measure of depend-
ent coverage for its employees. Clearly, understanding the costs
to the Employer of providing health insurance coverage for its
employees might well be of some relevance to the Union in
formulating a proposal to bridge the gap between the parties’
positions. Baldwin Shop ’N Save, 314 NLRB 114, 124 (1994).49
Accordingly, I find the delay in providing such information to
be unlawful.
For the reasons set forth above, I find that Respondent has
failed and refused or unlawfully delayed in providing informa-
tion, as alleged in the complaint, as follows: documents show-
ing the number of overtime hours worked by bargaining unit
employees on a quarterly basis in 2006 and 2007; the identifi-
cation of no-frills employees; the names of agencies used by
the Employer for temporary staff and copies of invoices show-
ing names, number of hours worked, rate(s) billed, and job title
for each agency employee; copies of work schedules; OSHA
injury and illness reports for 2005, 2006, and 2007; and the per
employee monthly premium cost for employer-funded single
health insurance. In this manner, Respondent has violated Sec-
tion 8(a)(1) and (5) of the Act.50

48 Jasinski testified that it would be possible to divide the total cost
of insurance by the number of employees. This formula, however, fails
to account for those employees who did not appear to have any health
insurance. Thus, any such calculations could not reliably give the Un-
ion the information it sought.
49 In Baldwin Shop ’N Save, supra at 124 fn. 8, it was noted that in
Sylvania Electric Products v. NLRB, 358 F.2d 591 (1st Cir. 1966), cert.
denied 385 U.S. 852, the court held “that the Board could properly find
that a union was entitled to information concerning the cost of welfare
benefits, where the union sought ‘better to evaluate the desirability of
an increase in welfare benefits as against an equivalent increase in take-
home pay.”‘
50 In his post-hearing brief, counsel for the General Counsel asserts,
for the first time, that Respondent unlawfully delayed in furnishing the
Union with copies of the KL Agreement and other memoranda of
agreement which had been entered into by the parties. This was neither
B. Respondent’s Claim of Impasse
1. Applicable legal standards
The Board considers negotiations to be in progress, and thus,
will find no genuine impasse to exist, until the parties are war-
ranted in assuming that further bargaining would be futile or
that there is “no realistic possibility that continuation of discus-
sion at that time would have been fruitful.” Cotter & Co., 331
NLRB 787, 787 (2000), quoting Television Artist AFTRA v.
NLRB, 395 F.2d 622, 628 (D.C. Cir. 1968).
The Board does not lightly infer the existence of an impasse,
and the burden of proving it rests on the party asserting it. Na-
perville Ready Mix, Inc., 329 NLRB 174, 183 (1999), enfd. 242
F.3d 744 (7th Cir 2001); Serramonte Oldsmobile, 318 NLRB
80, 97(1995), enfd. in relevant part 86 F.3d 227 (D.C. Cir.
1996). The existence of impasse is a factual determination that
depends on a variety of factors, including the contemporaneous
understanding of the parties as to the state of negotiations, the
good faith of the parties, the importance of the disputed issues,
the parties’ bargaining history, and the length of their negotia-
tions. Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd.
sub nom. Television Artist AFTRA v. NLRB, supra. The Board
also considers the parties’ demonstrated flexibility and willing-
ness to compromise in an effort to reach agreement. Cotter &
Co., supra at 789; Wycoff Steel, 303 NLRB 517, 523 (1991).
The Board further takes into account whether the parties con-
tinued to meet and negotiate. See, e.g., Huck Mfg. Co. v. NLRB,
693 F.2d 1176 (5th Cir. 1982). In short, the Board requires that
both parties believe that they are “at the end of their rope.”
Grinnell Fire Protection Systems Co., 328 NLRB 585, 585
(1999), enfd. 236 F.3d 187 (4th Cir. 2000), cert. denied 534
U.S. 818 (2001) (and cases cited therein).
The Board has recognized that a bargaining stance where
both sides merely maintain hard positions and each indicates to
the other that it is standing pat is the rule in bargaining and not
the exception. PRC Recording Co., 280 NLRB 615, 635
(1986), enfd. 836 F.2d 289 (7th Cir. 1987). Where movement
between the parties indeed occurs, the Board does not confine
its examination of bargaining history solely to the item claimed
to be at impasse. See Sacramento Union, 291 NLRB 552
(1988), enfd. 888 F.2d 1394 (9th Cir. 1981). Rather, the very
nature of collective bargaining presumes that while movement
may be slow on some issues, a full discussion of other issues
may result in agreement on stalled ones: “Bargaining does not
take place in isolation and a proposal on one point serves as
leverage for positions in other areas.” Patrick & Co., 248
NLRB 390 (1980), enfd. 644 F.2d 889 (9th Cir. 1981); Sacra-
mento Union, 291 NLRB at 556 (citation and footnote omitted).
Further, although a good-faith impasse temporarily suspends
the duty to bargain, the parties are not permanently relieved of
bargaining obligation: “As a recurring feature in the bargaining
process, impasse is only a temporary deadlock or hiatus in ne-

alleged in the complaint nor identified as an additional independent
violation during the hearing. Nor has the General Counsel proffered a
sufficient legal argument as to why I should find this to be a de facto
violation of the Act. Accordingly, I find that this matter was not liti-
gated and decline to address it further.
CASTLE HILL HEALTH CARE CENTER 1185
gotiations which, in almost all cases is eventually broken, either
through a change of mind or the application of economic
force.” Charles D. Bonnano Linen Service v. NLRB, 454 U.S.
404, 412 (1982) (internal quotation omitted).
In addition, “[a]n impasse does not destroy the collective-
bargaining relationship. Instead, a genuine impasse merely
suspends the duty to bargain over the subject matter of the im-
passe until changes in circumstances indicate that an agreement
may be possible. Anything that creates a new possibility of
fruitful discussion breaks an impasse and revives an employer’s
obligation to bargain over the subject of the impasse.” Pavil-
ions at Forrestal, 353 NLRB 540 (2008) (quoting Airflow Re-
search & Mfg. Corp., 320 NLRB 861, 862 (1966)).
2. The relevant factors
a. The Parties’ bargaining history
While the Union or its predecessor Local 1115 have repre-
sented employees at Castle Hill for a number of years and have
executed several MOAs, this was the first negotiation that was
conducted by these particular principals and the record reflects
that there were initial obstacles including the lack of a fully
integrated recent collective-bargaining agreement for the par-
ties to work from.
In support of its contention that impasse had been reached,
Respondent notes that the negotiations spanned a period of over
1 year and there were 13 face-to-face meetings and many letters
exchanged during this period of time. As Respondent argues,
the Board has found impasse has occurred when fewer sessions
have been held. Richmond Electrical Services, 348 NLRB 1001
(2006); Lou Stechers Super Markets, 275 NLRB 475 (1985). J.
D. Lunsford Plumbing, 254 NLRB 1360 (1981). Respondent
thus argues that it properly declared impasse under such cir-
cumstances.
In support of its contention that no impasse occurred, the
General Counsel and the Union point to various events which
occurred at and after the May 14, 2008 bargaining session
which, it is contended, demonstrate that the parties had in-
tended that bargaining would continue. At that meeting, which
was the last session held by the parties prior to the Employer’s
declaration of impasse and promulgation of its final offer, the
parties exchanged economic proposals. At this time Saint Hi-
lare made clear that he would be unavailable during the month
of June due to an upcoming union convention and a personal
vacation. Subsequent to the May 14 session, Jasinski sent Saint
Hilare an updated list of bargaining unit employees, which
included information regarding health insurance status and no-
frills employees. On May 28, the Employer sent additional
information, including OSHA reports, employee schedules,
Medicaid cost reports and certain overtime information. On
June 10, Saint Hilare continued to ask for more information
including overtime, daily schedules, and agency information.
Respondent sent additional information on June 17.
Subsequently, on June 17 Jasinski appeared to anticipate fur-
ther negotiating sessions. In particular, he wrote: “We recog-
nize that you are currently away on vacation . . . . We suggest
you propose dates in July and August.”
Jasinski thereafter wrote to Saint Hilare on June 23, com-
plaining that the Union had not contacted Respondent or the
mediator for several weeks. He nevertheless asked for further
bargaining dates. On July 7, Jasinski sent the Union Respon-
dent’s final offer with an implementation date of July 11. He
stated: “Because of the Union’s inaction and unwillingness to
modify its proposals, we are at impasse.” The General Counsel
and Union argue that such assertions are false and disingenuous
because Jasinski was well aware of Saint Hilare’s unavailability
during June and was seizing on the opportunity to prematurely
declare impasse.
On July 7, Saint Hilare had written to Jasinski, stating that he
had just returned from vacation and had reviewed Jasinski’s
letters of June 17 and July 23. He proposed bargaining dates.
Jasinski responded on July 10 confirming, as he put it, “nego-
tiations.” After reviewing the final offer Saint Hilare wrote to
Respondent, disputing the claim of impasse. He challenged
Jasinski’s claim of union inaction, pointing out that the Union
had consistently modified its proposals, up to and including the
May 14 session. He noted that the final offer contained propos-
als which had not previously been brought to the Union during
negotiations and advised Respondent that the Union had further
proposals to present.
From the record it is apparent that there were difficulties in
the bargaining, numerous negotiation sessions, and a general
lack of agreement on various issues. Nevertheless, I find that
the parties’ bargaining history does not establish that the parties
were at impasse at the time the final offer was implemented.
I note that the parties had not discussed language issues for
several months. The Employer’s only noneconomic proposal
was presented on September 19 and the Union’s counterpro-
posal on October 24, 2007. This proposal reflected concessions
from the Union’s initial offer. The history of negotiations, as
described by the parties, shows that the Employer never re-
sponded to this proposal. Respondent argues that this was be-
cause the Union insisted on negotiating economics first. How-
ever, there is no evidence that the Union explicitly refused to
discuss noneconomic issues with the employer at any time dur-
ing negotiations.
Moreover, I note that the parties exchanged wage proposals
at the May 14 meeting which represented concessions from
those put forward previously and, further, that that the letters
initially exchanged after this bargaining session demonstrate
that continued negotiations were anticipated by both parties
subsequent to this meeting.
Respondent argues that the lack of substantive discussion at
the July 17 meeting shows that the parties were at impasse. As
noted above, however, this meeting took place after the imple-
mentation of the final offer and the Union justifiably had many
questions about how the implementation would affect unit em-
ployees. There were also inquires about certain new proposals
which had been included in the final offer and the information
which had been provided to the Union in the interim period
between meetings. The Employer also finally conceded the use
of agency employees, but did not offer a response to the Un-
ion’s request for specific information about such use. The Em-
ployer ended the meeting after the Union returned from a cau-
cus. When told that the Union had further proposals to submit,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1186
the Employer insisted that the Union bargain through corre-
spondence rather than through a face-to-face meeting.51
The foregoing evidence, in my view, fails to meet Respon-
dent’s burden to show that both parties were at the end of their
negotiating rope at the time the final offer was implemented.
b. Good faith of the Parties in negotiations
Although there is no complaint allegation of overall bad-
faith bargaining, the General Counsel and the Union allege that
Respondent demonstrated bad faith in various ways. Con-
versely, Respondent argues that the Union demonstrated bad
faith and an unwillingness to negotiate for an agreement which
did not meet standards which had been achieved in other con-
tracts.
Respondent accuses the Union of adopting a “take it or leave
it” strategy, maintaining fixed positions and engaging in regres-
sive bargaining throughout negotiations. Respondent accuses
the Union of an effort to stall negotiations by insisting on
reaching an agreement with the same terms as the Tuchman
Agreement and/or the KL Agreement or no contract at all. In
support of this contention, Respondent relies upon Richmond
Electrical Services, supra; J. D. Lunsford Plumbing, supra; and
Matanuska Electric Assn., 337 NLRB 680 (2002). In addition,
as noted above, Respondent has contended that the Union’s
information requests were purely tactical and made for the pur-
pose of delay and to foreclose a finding of impasse. ACF Indus-
tries, 347 NLRB at 1043.
Based upon the credited evidence herein, I cannot conclude
that the Union bargained in bad faith. I do not agree that the
Union adopted a “take it or leave it strategy” or maintained a
fixed insistence on obtaining either industry standards or terms
consistent with the Tuchman Agreement.
Initially, I note that it has been recognized that a union has
the legitimate right to seek for its members the same or similar
terms and conditions of employment that have been negotiated
with other employers. Teamsters Local 282 (E. G. Clemente
Contracting), 335 NLRB 1253, 1255 (2001); Mine Workers v.
Pennington, 381 U.S. 657, 665 (1965). In determining bad
faith, the Board considers the totality of a party’s conduct. St.
George Warehouse, 341 NLRB 904, 908 (2004).
Moreover, I note that while Saint Hilare made clear the Un-
ion’s goals, there is no evidence that the union negotiators
stated that any issue was nonnegotiable. Further, the record
establishes that the Union made various concessions on none-
conomic and economic issues, including health insurance and
offered compromises relating to the term and effective date of
the proposed agreement. Its wage proposals, which were modi-
fied on several occasions, were consistently less favorable to
employees in terms of wage rates and minimums than what had
previously been negotiated in the Tuchman Agreement, and
almost always more favorable to the Employer. Moreover, at
the bargaining session on February 27, 2008, it presented the

51 Sec. 8(d) of the Act defines the duty to bargain collectively as the
mutual obligation of the parties to “meet . . . and confer in good faith. . .
.” Moreover, even if the parties had reached a lawful impasse here, it is
well settled that the obligation to meet and bargain continues. Roosevelt
Memorial Medical Center, 348 NLRB 1016, 1017 (2006); Paul Muel-
ler Co., 332 NLRB 312, 317 (2000).
Employer with a significant modification of its proposal for
family health coverage whereby the Employer would not pay
any premiums for the first 5 years and then be subject to a slid-
ing scale and would be liable for the full premium only after an
employee had reached 10 years of employment.
Respondent alleges that the introduction of a 2-percent sen-
iority bonus on February 27, 2008, was a regressive proposal.
However, this proposal was suggested, as Saint Hilare testified,
on the day the Union introduced a counterproposal which re-
duced the cost to the Employer of dependent care coverage by
having employees pay a portion of the premium. In addition,
other economic demands were reduced, in particular pushing
back the maximum contract minimum rates to become effective
in September 2011. Thus, the Union presented the Employer
with an economic proposal more favorable to employees in
some respects and less favorable in others from what had been
previously proposed. I further note that Respondent presented
no evidence that would substantiate its claim that this proposal
was actually regressive in nature; nor does it appear from the
record that Respondent computed the actual costs of the pro-
posal at the meeting in question or thereafter.
Matanuska Electric Assn., supra, cited by Respondent, is in-
apposite here. In that case, the Board found that the union had
engaged in stall tactics including taking the position that “all
words are ambiguous” and insisting that the employer was
obliged to explain its motivation. In addition, the employer
stated that it was willing to continue bargaining if the union
submitted a proposal showing movement, but the union failed
to do so. 337 NLRB at 683–684. Those facts are clearly distin-
guishable from those presented by the circumstances of this
case.52
Based upon the foregoing, I find that the evidence fails to
support Respondent’s assertion of bad faith on the part of the
Union.
In support of their contention that Respondent negotiated in
bad faith, the General Counsel and the Union point to Respon-
dent’s refusal to acknowledge the existence and relevance of
the KL Agreement. Respondent, conversely, argues that the
Union’s insistence on this evinces its bad faith. Respondent
argues that the Union could never properly identify who had
entered into or been bound by such agreement and that its reli-
ance on this as the underlying contract was part of a strategy to
frustrate bargaining.
As an initial matter, I note that McCalla’s testimony that
Administrator Sokolowski stated that she referred to the KL
Agreement when addressing grievances was unrebutted. In
addition, Saint Hilare testified that he too referred to the docu-
ment in the same fashion.53 While Respondent’s refusal to ac-
knowledge the relevance of this agreement may be puzzling
under such circumstances, the fact remains that the General
Counsel’s witnesses failed to offer specific evidence as to how
such a refusal to acknowledge a contract which expired over a

52 Richmond Electrical Services, supra, and J. D. Lunsford Plumb-
ing, supra, also cited by Respondent, are discussed below.
53 Further, the 1992–1996 Castle Hill memorandum of local condi-
tions makes specific reference to the applicability of the KL Agree-
ment.
CASTLE HILL HEALTH CARE CENTER 1187
decade ago presented tangible or significant roadblocks to bar-
gaining. It is true that this was a source of disagreement which
apparently contributed to the dissension between the parties.
Other than this, however, there is no evidence that the parties
were in disagreement regarding the existing terms and condi-
tions of employment in effect prior to the expiration of the 2002
MOA. Had there been some uncertainly on these issues, the
issue of the applicability of the KL Agreement might well have
taken on enhanced significance. In the absence of any such
evidence, I am not convinced that Respondent’s apparent fail-
ure to acknowledge the relevance of the KL Agreement consti-
tuted a major impediment, imposed by Respondent, on the ne-
gotiations.54
The General Counsel and the Union accuse Respondent of
other misrepresentations during the course of bargaining. They
cite the Respondent’s failure to highlight its pension proposal,
among others, in the compilation agreement presented to the
Union on August 28, 2007.55 I find this particular example
unavailing. The record fails to show why this particular pro-
posal was not highlighted and I decline to speculate as to why it
was not. However, I also find it hard to believe that Respondent
thought it could somehow dupe the Union into accepting these
new terms, as the General Counsel appears to suggest. Cer-
tainly, Respondent had every reason to believe that the Union’s
experienced negotiators would review the compilation docu-
ment in preparation for further negotiations. I further note that
Respondent’s proposed pension language was set forth in its
entirety in the economic proposal given to the Union on Octo-
ber 24, 2007.
The General Counsel and the Union further allege that Re-
spondent continually misrepresented whether the facility used
agency employees. The record supports this contention. As
noted above, I do not credit Jasinski’s testimony that he in-
formed the Union that the facility had employed agency em-
ployees in October or November, after the issuance of the 10-
day notice, as it is against the weight of all the other evidence
in the record. Rather, I find that during the period when Re-
spondent was actively contracting with at least one agency for
nonunit employees, it repeatedly advised the Union that none
were being used. It was only after the issuance of the final of-
fer, at the last meeting of the parties, that Respondent acknowl-
edged that agency employees had been utilized.
c. Contemporaneous understanding of the Parties as
to the state of negotiations
It is the case that on May 14, 2008, Respondent advised the
Union that it was close to its final offer. It is also the case,
however, that economic proposals were exchanged by the par-
ties, and the Employer did not declare impasse on that occa-

54 In fact, as the Union notes in its brief, a comparison of the compi-
lation document prepared by Jasinski early in negotiations with the
noneconomic provisions of the KL Agreement shows that a number of
provisions are identical and others substantially similar. I further note
that Jasinski eventually acknowledged this during negotiations.
55 Jasinski had also failed to highlight its overtime proposal, but ac-
knowledged this omission after it was brought to his attention at the
meeting where the document was reviewed.
sion. See Huck Mfg. Co. v. NLRB, 693 F.2d 1176, 1186 (5th Cir
1982); Essex Valley Visiting Nurses Assn., supra at 841.
With regard to Respondent’s comments at the May 14 meet-
ing and the subsequent issuance of the final offer, the Board has
held that the assertion of a “final” position does not, by itself,
require a finding of impasse. Grinnell Fire Protection Systems,
328 NLRB at 585 (citing inter alia, PRC Recording Co., 280
NLRB at 640). See also Cotter & Co., 331 NLRB at 791, where
Member Brame quoted Judge Posner for the proposition that
one party’s proffering of a so-called final offer is not conclu-
sive on the question of impasse because “[a]fter final offers
come more offers.” 56
Here, the overall course and conduct of the parties does not
evince a mutual understanding that further bargaining would
not take place or be fruitful. As noted above, on June 17, 2008,
Jasinski wrote to Saint Hilare: “We recognize that you are cur-
rently away on vacation . . . . . We suggest you propose dates in
July and August. . . .” He thereafter asked for further bargaining
dates on June 23. He also continued to send information to the
Union. When Saint Hilare responded and proposed bargaining
dates, Jasinski responded on July 10 confirming “negotiations.”
After receiving the final offer, Saint Hilare wrote to Jasinski
and disputed his claims of union inaction and impasse.
Based upon the foregoing, I conclude that the evidence is in-
sufficient to meet Respondent’s burden of proof that, at the
time of the promulgation or implementation of the final, offer
the parties were of a contemporaneous mutual understanding
that further bargaining would be futile. I further find that the
objective evidence does not support Respondent’s unilateral
reliance on such an assumption.
d. Importance of the issues central to the bargaining
As Respondent notes, there were key issues that remained in
dispute up to and through the final bargaining session. These
include health insurance, wages, minimums, and the use of no-
frills employees. Respondent argues that these disputes re-
sulted in an impasse. Respondent further argues that the Un-
ion’s insistence on settling the contract based upon the terms of
the Tuchman Master Agreement and/or the KL Agreement
further established that impasse had been reached. Richmond
Electrical Services, supra; J. D.Lunsford Plumbing, supra, In
this regard, Respondent argues that the parties need not reach
impasse on all issues before an employer may lawfully imple-
ment its bargaining proposal. Calmat Co., 331 NLRB 1084,
1097 (2000).
It is apparently conceded by the General Counsel and the
Union that issues separating the parties included wages, health
insurance, the proposed elimination of daily overtime, and Re-
spondent’s proposal to double the number of no-frills workers.
The General Counsel and the Union contend, for various rea-
sons attributable to Respondent’s conduct at the table, that the
parties were unable to move beyond preliminary discussions of
these and other issues. These include the Employer’s refusal to
accept the KL Agreement as the underlying document, alleged
misrepresentations regarding the compilation agreement and

56 Chicago Typographical Local 16 v. Chicago Sun Times, 935 F.2d
1501, 1508 (7th Cir. 1991).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1188
the Employer’s refusal to provide information regarding key
issues such as no-frills employees, agency and employee over-
time, among others.
In disagreement with Respondent, and notwithstanding the
fact that the parties had not reached agreement on several criti-
cal issues, I cannot conclude that the evidence establishes that
the parties were at impasse at the time of the implementation of
the final offer. The evidence fails to demonstrate the sort of
deadlock which is characteristic of such a finding. The Union
never told the Employer that it would be unwilling to make
further concessions and, in fact, had made concessions
throughout bargaining. Whether the parties could have eventu-
ally resolved their differences is unknown; however, the evi-
dence is clear that the Union offered to continue bargaining
and, prior to July 7, the Employer had committed to doing so as
well.
Richmond Electrical Services, supra, and J. D. Lunsford
Plumbing, supra, cited by Respondent, may be distinguished in
that the unions in those cases refused to accept any terms dif-
ferent from the standard, area contracts. In Richmond, the union
conceded that the most-favored-nations clause precluded it
from agreeing with the employer on wages lower than those in
the industrywide agreement, and the Union never proposed
lower wages. In addition, the impasse over wages there led to
“a complete breakdown in negotiations.” 348 NLRB at 1003.
Here, by contrast, the Union submitted economic proposals
consistently less favorable to employees than the ones negoti-
ated with other employers and made concessions to align its
proposals more with positions taken by the Employer through-
out bargaining.
Similarly, Calmat Co., supra, is distinguishable insofar as it
holds that impasse on a single critical issue may place such a
hold on negotiations to render further bargaining meaningless.
There, however, the union specifically told the employer that it
would not make any further proposals unless and until the re-
spondent “got off its . . . damn pension proposal.” When the
respondent’s negotiator said that was not possible the union’s
negotiator acknowledged that the parties were “hung up on
that” and the employer’s representative concurred. 331 NLRB
at 1099. Further, at one point prior to the communication of the
respondent’s final offer, the union told the employer that unless
it took its pension proposal off the table there would be no
movement on any other issue. In a letter communicating the
final offer, the employer noted that the parties were at “irrecon-
cilable odds.” Such circumstances do not obtain here, where
there is insufficient evidence to meet Respondent’s burden to
show that the parties had reached the sort of stalemate resulting
in intractable positions on any issue or group of issues which
would render further bargaining futile.
By contrast, in NewcorBay City Division, 345 NLRB at
1239, the Board found that the respondent’s assertion of im-
passe was not lawful where the union’s agent asked to continue
bargaining and assured the employer that it was prepared to
negotiate. It was expected that the union would make conces-
sions based upon information provided by the employer. The
Board found that no impasse had occurred even though the
union “had not offered specific additional concessions, but only
declared its intention to be flexible and continue bargaining.”
The Board noted that although a “wide gap” existed between
the parties’ positions, no impasse occurred where there was a
possibility of further movement on important issues. Similarly,
here, the evidence here shows that despite a “wide gap” on
health insurance and other issues, the union officials were not at
the end of their rope, but were willing to negotiate further.
e. The effect of the refusal to provide information
on the issue of impasse
A failure to provide information relevant to core issues sepa-
rating the parties frustrates the bargaining process and pre-
cludes a finding of impasse. Caldwell Mfg. Co., 346 NLRB
1159, 1160 (2006). Similarly, information that is not produced
in a timely manner may also prevent parties from reaching a
lawful impasse. Orthodox Jewish Home for the Aged, 314
NLRB at 1008. As the Board has found: “A legally recognized
impasse cannot exist where the employer has failed to satisfy
its statutory obligation to provide information needed by the
bargaining agent to engage in meaningful negotiations.” Decker
Coal Co., 301 NLRB 729, 740 (1991).
Here, the Employer’s refusal to or delay in providing infor-
mation related to mandatory subjects of bargaining such as
overtime, health insurance, employee schedules, the health and
safety of employees and the use of agency employees to sup-
plant bargaining unit employees went to core issues which were
the subject of much discussion and debate over the months of
negotiations, as has been discussed above.
As has been noted above, Respondent asserts that the Union
did not need such information to make its proposals; thus, the
information sought was neither necessary nor relevant. In sup-
port of this contention, Respondent cites Sierra Bullets LLC,
340 NLRB 242, 244 (2003). In that case, however, the Board
considered the “precise issue” of “whether the mere existence
of any information request, regardless of its relevance to the
core uses that separate the parties at the bargaining table” pre-
cludes a finding of impasse. The Board found that because the
requested information in that case was irrelevant there was “no
convincing argument that [providing the information] would
have changed the fact that the parties were deadlocked.” The
animating principle in that case, however, was whether the
information sought was relevant; there was no suggestion that
anything further was required. Thus, Respondent is incorrect in
its apparent supposition that it must be shown that the informa-
tion would have changed the course of bargaining. As has been
observed by one court: “the Board has never required the estab-
lishment of ‘but for’ causation in absolute terms.” E. I. du Pont
de Nemours v. NLRB, 489 F.3d 1310, 1315 (D.C. Cir. 2007).
See also Caldwell Mfg., 346 NLRB at 1170 (“To the extent that
there is uncertainty about what, if any, new proposals the Union
would have made if it had been given the opportunity to review
information . . . that uncertainty must be resolved against the
Respondent, whose unlawful action created the uncertainty.”).
In any event, Sierra Bullets, supra, is inapposite to the cir-
cumstances here. In that case the sole theory of the violation
which had been litigated was that impasse was precluded by the
existence of an outstanding information request. Here, as de-
scribed above, I have found that under the “totality of the re-
cord evidence” there are numerous factors which lead to the
CASTLE HILL HEALTH CARE CENTER 1189
conclusion that a valid impasse had not been reached. Grinnell
Fire Protection, 328 NLRB at 585. This includes, but is not
limited to, the fact that there had been a refusal to provide rele-
vant information prior to Respondent’s declaration of im-
passe.57
f. Other considerations
Moreover, the evidence establishes that Respondent’s July 7
final offer differed in certain respects to its previous offers
across the table. Under the no-frills proposal for the first time,
Respondent proposed a two-tier no-frills system, and increased
the number of allotted slots to 25 whereas it had previously
proposed 20. In addition, the no-frills rate would be paid above
the minimum for each job classification, as opposed to an
amount of $1.50 per hour over the employee’s base rate, as had
been proposed on October 24.58 In this regard, the Board has
held that introducing significant new proposals at a late stage of
negotiations will undermine a contention that the parties have
reached impasse. See, e.g., Hotel Roanoke, 293 NLRB 182, 183
(1989). Here, in agreement with the General Counsel and the
Union, I find that Respondent’s late introduction of new pro-
posals, which were related to issues which had been the subject
of significant discussion at prior bargaining sessions, and which
had never been put forward prior to the announcement of the
final offer, suggests that a valid impasse had not been reached.
In further support of its contention that impasse had been
reached, Respondent relies upon the fact that the Union did not
schedule any sessions after July 17, 2008, and argues that this
demonstrates the Union’s unwillingness to reach an agreement.
The evidence, however, shows that in correspondence ex-
changed after the declaration of impasse and implementation of
the final offer the Union continued to demonstrate its willing-
ness to meet and took the position that further discussion could
prove fruitful. Respondent, while not refusing to meet, failed to
agree to any further meetings after July 17. Under such circum-
stances, I do not find the fact that no further meetings had been
scheduled to be determinative. To the contrary, I find that the
Union’s stated willingness to meet further suggests “a new
possibility of fruitful discussion.” PRC Recording Co., supra at
636.
Accordingly, based upon the foregoing, I find that the parties
had not reached a valid impasse at the time of the implementa-
tion of Respondent’s final offer.

57 As set forth above, I have found that no valid impasse has oc-
curred. Even assuming, however, that a valid impasse had taken place,
an employer nevertheless has an obligation to furnish information in
order to enable a union to perform its statutory duties. NLRB v. Acme
Industrial, supra at 435–437. The Board has held that an impasse is
viewed as “only a temporary deadlock or hiatus” in bargaining, and that
even during such a hiatus, an employer has a duty to supply relevant
information. Watkins Contracting, Inc., 335 NLRB 222, 225 (2001).
58 For the reasons discussed above, I do not find that the final offer
contained previously undisclosed language with regard to the Em-
ployer’s obligation to make pension or training fund contributions. I
also note, however, that McCalla testified that the proposed language,
which limited coverage and contributions to full-time employees “for
hours physically worked,” would not satisfy the requirements of Fund
trustees.
C. The Alleged Unilateral Changes in Terms and
Conditions of Employment
The complaint alleges that in July 2008, Respondent imple-
mented its final offer and unilaterally changed terms and condi-
tions of employment for the Castle Hill unit employees without
the agreement of the Union and in the absence of a valid bar-
gaining impasse. Respondent’s answer denied these allegations
of the complaint and asserts that it legally implemented their
last best offer and that Respondent did not change any term and
condition of employment for unit employees prior to reaching a
valid impasse with the Union.
The general outline of the relevant law is well settled. During
negotiations for a collective-bargaining agreement an employer
may not make unilateral changes in mandatory subjects of bar-
gaining without first bargaining to a valid impasse. NLRB v.
Katz, 369 U.S. 736 (1962). While such negotiations are ongo-
ing, “an employer’s obligation to refrain from unilateral
changes extends beyond the mere duty to give notice and an
opportunity to bargain; it encompasses a duty to refrain from
implementation at all, unless and until an overall impasse has
been reached on bargaining for the agreement as a whole.”
Bottom Line Enterprises, 302 NLRB 373, 374 (1991) (footnote
omitted), enfd. mem. 15 F.3d 1087 (9th Cir. 1994). Moreover,
no impasse is possible where an employer presents the union
with a “fait accompli” as to a matter over which bargaining to
impasse is required. Dorsey Trailers, Inc., 327 NLRB 835, 858
(1999) (citations omitted), enfd. granted in part and denied in
part 233 F.3d 831 (4th Cir. 2000).
As discussed above, I have found that the parties had not
reached impasse in bargaining. Moreover, the record estab-
lishes that Respondent has made unilateral changes in terms
and conditions of employment. In particular, on or about July
13, 2008, Respondent implemented its final offer which in-
creased employees’ wages, established a two-tier no-frills sys-
tem which also changed the rate of compensation for no-frills
employees and increased the number of no-frills slots to 25,
eliminated daily overtime pay, reduced health insurance bene-
fits for employees working between 20 and 30 hours per week
and partially implemented a uniform allowance for full-time
employees only. None of these changes had been agreed to in
bargaining and, as discussed above, certain changes even dif-
fered from proposals Respondent had advanced during bargain-
ing prior to the declaration of impasse.
All of the foregoing changes implicate wages, hours, and
other terms and conditions of employment and are, therefore,
mandatory subjects of bargaining. See, e.g., Verizon New York,
Inc., 339 NLRB 30, 31 (2003) (wages); Allied Chemical &
Alkali Workers Local 1 v. Pittsburgh Plate Glass Co., Chemi-
cal Division, 404 U.S. 157, 159 (1971) (pension and insurance
benefits for active employees); Mid Continent Concrete, 336
NLRB 258, 259 (2001) (health insurance benefits); Keeler Die
Cast, 327 NLRB 585, 588–589 (1999) (wages, overtime, insur-
ance coverage, and vacation policies).
Accordingly, by making such changes in the absence of a
valid impasse in bargaining and without the consent of the Un-
ion, Respondent violated Section 8(a)(1) and (5) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1190
D. The Alleged Unilateral Discontinuance of Pension
Fund Contributions
1. Contentions of the Parties
The complaint, as amended at the hearing, alleges that since
on or about February 1, 2007, the Employer unilaterally refused
and failed to make pension fund contributions without notifying
or bargaining with the Union. This allegation is based upon an
amended charge, filed on April 9, 2009, which amended an
earlier charge filed in December 2007. At the hearing, Respon-
dent answered the amended complaint, denying the material
allegations and asserting certain affirmative defenses. In par-
ticular, Respondent argued that the allegations of the amended
complaint were not supported by the evidence, were time
barred by Section 10(b) of the Act and did not relate back to the
original charge as the amendment was predicated upon a differ-
ent legal theory from that set forth in the initial charge. In its
posthearing brief, Respondent further argues that the Union is
without standing to raise the claim.
The General Counsel argues that the amendment is not time
barred because the allegations of the amended charge are
“closely related” to the allegations of the earlier charge in Case
22–CA–28152 as they relate to mandatory subjects that were
the subject of ongoing contract negotiations. The General
Counsel further contends that the 10(b) period did not start to
run until February 9, 2009, when the Fund conducted an inves-
tigation into whether Healthcare and Sunshine had contracts
with the Union. The General Counsel maintains that the Union
did not have either actual or constructive notice of the delin-
quencies prior to that time and that the Respondent has not met
its burden of showing otherwise.
The Union argues that the Employer’s method of remitting
contributions, through three different entities, created confusion
which made it difficult for the Fund to identify those payments
as Castle Hill contributions. Because the Fund was unaware
that the Healthcare and Sunshine checks were for Castle Hill
employees, and because Castle Hill was contributing regularly
for other employees, the Fund believed there was no collective-
bargaining agreement authorizing the acceptance of such con-
tributions. The Union argues that it was not until February
2009, when a conference call was precipitated by the Fund’s
refund letters that the Fund was in a position to recognize that
the cessation of the Healthcare and Sunshine payments in Feb-
ruary 2007 resulted in a delinquency in contributions by Castle
Hill.
As noted above, Respondent argues that only the Fund, and
not the Union, has standing to raise the allegations of the
amended charge. In support of this contention, Respondent
maintains that the Fund and the Union are separate and distinct
entities and, moreover, that the Union does not represent the
Fund. Respondent further argues that the evidence shows that
since 2002 Castle Hill has always made the required contribu-
tion to the Fund and it was the Fund that refused to process the
checks it received from August 2003 through January 2007.
The Fund then returned the checks and refunded amounts al-
ready paid and told the Employer that they would not accept
further contributions without a signed collective-bargaining
agreement. Subsequently, by letter dated April 1, 2009, the
Fund reversed course and found that the Employer would be
required to make contributions because it claimed it had subse-
quently received a signed collective-bargaining agreement. As
Respondent argues: “As such, the Union’s allegations that the
Employer deliberately failed to make the necessary contribu-
tions to the Fund are utterly absurd. . . .” (Emphasis in original.)
2. Analysis
a. The Union has standing to file the vharge
With regards to Respondent’s argument regarding the Un-
ion’s asserted lack of standing, as an initial matter, I note that
the Board administers public policy and its processes may be
invoked by any person who believes such policies have been
violated. This is reflected in Rule 102.9 of the Board’s Rules
and Regulations and Statements of Procedure which provides,
inter alia, as follows:

Who may file . . . a charge that any person has engaged in
and/or is engaging in any unfair labor practice affecting com-
merce may be filed by any person . . . .

Moreover, in NLRB v. Indiana & Michigan Electric Co., 318
U.S. 9, 17–18 (1943), the Supreme Court addressed the issue as
follows:

The Act requires a charge before the Board may issue a com-
plaint, but omits any requirement that the charge be filed by a
labor organization or an employee. In the legislative hearings
senator Wagner, sponsor of the bill, strongly objected to a
limitation on the classes of persons who could lodge com-
plaints with the Board. He said it often was not prudent for the
workman himself to make a complaint against his employer,
and that strangers to the labor contract were therefore permit-
ted to make the charge. The charge is not a proof. It merely
sets in motion the machinery of an inquiry. When a Board
complaint issues, the question is only the truth of its accusa-
tions. The charge does not even serve the purpose of a plead-
ing.

The Board has since adopted this ruling in Bagley Products,
208 NLRB 20, 21 (1973), and has also specifically affirmed
that any person can file an unfair labor practice charge. See
Utility Workers Local 111 (Ohio Power Co.), 203 NLRB 230
(1973).
b. The 10(b) Issue
Section 10(b) of the Act provides, in relevant part, that “no
complaint shall issue based upon any unfair labor practice oc-
curring more than six months prior to the filing of the charge
with the Board and the service of a copy thereof upon the per-
son against whom such charge is made.”
I do not agree with the General Counsel’s contention that the
amendment is timely because it is “closely related” to the origi-
nal timely-filed charge. The applicable principles are set forth
in Redd-I, Inc., 290 NLRB 1115 (1988):

First, we shall look at whether the otherwise untimely allega-
tions are of the same class as the violations alleged in the
pending timely charge. This means that the allegations must
all involve the same legal theory and usually the same section
of the Act (e.g., 8(a)(3) reprisals against union activity). Sec-
CASTLE HILL HEALTH CARE CENTER 1191
ond, we shall look at whether the otherwise untimely allega-
tions arise from the same factual situation or sequence of
events as the allegations in the pending timely charge. This
means that the allegations must involve similar conduct, usu-
ally during the same time period with a similar object (e.g.,
terminations during the same few months directed at stopping
the same union organizing campaign). Finally, we may look
at whether a respondent would raise the same or similar de-
fenses to both allegations, and thus whether a reasonable re-
spondent would have preserved similar evidence and prepared
a similar case in defending against the otherwise untimely al-
legations as it would in defending against the allegations in
the timely pending charge.

In this case, in agreement with Respondent, I find that the al-
legations of the amendment do not involve the same legal the-
ory as that set forth in the original charge. While both allega-
tions concern violations of Section 8(a)(5), they are otherwise
dissimilar. The initial charge alleges a failure to provide infor-
mation, the amendment alleges a unilateral change in terms and
conditions of employment. Further, the factual predicates for
the two allegations are not comparable and do not involve simi-
lar conduct during the same period. Nor is there a “causal
nexus” between the allegations. See SKC Electric, Inc., 350
NLRB 857, 859 (2007). Moreover, it is apparent that the Re-
spondent would not be raising similar defenses to these allega-
tions. I conclude therefore, that the amendment to the charge in
Case 22–CA–28152 is not timely under the principles enunci-
ated in Redd-I and its progeny. See Regency Grande Nursing &
Rehabilitation Center, 347 NLRB 1143, 1143–1144 (2006).
Nevertheless, for the following reasons, I find that the
amendment to the charge is timely filed. The 10(b) limitations
period does not begin to run until the aggrieved party has re-
ceived actual or constructive notice of the conduct that consti-
tutes the alleged unfair labor practice. See Vanguard Fire &
Security Systems, 345 NLRB 1016, 1016 (2005); see also Allied
Production Workers Local 12, 337 NLRB 16, 18 (2001) (find-
ing that the 6-month period provided by Sec. 10(b) begins to
run only when a party has “clear and unequivocal notice” of the
unfair labor practice). “A party will be charged with construc-
tive knowledge of an unfair labor practice where it could have
discovered the alleged misconduct through the exercise of rea-
sonable diligence.” Ohio & Vicinity Regional Council of Car-
penters, 344 NLRB 366, 368 (2005) (citing Phoenix Transit
System, 335 NLRB 1263 fn. 2 (2001)) (applying Sec. 10(b)
where a charging party was found to have been “on notice of
facts that reasonably engendered suspicion that an unfair labor
practice had occurred”); see also St. Barnabas Medical Center,
343 NLRB 1125, 1127 (2004) (finding that knowledge is im-
puted when a party first has “knowledge of the facts necessary
to support a ripe unfair labor practice”). If a party “‘ha[s] the
means of discovery [of a fact] in his power, he will be held to
have known it[,]’ and ‘whatever is notice enough to excite at-
tention and put the party on his guard and call for inquiry, is
notice of every thing to which such inquiry might have led.’”
See Miramar Hotel Corp., 336 NLRB 1203, 1252 (2001) (quot-
ing Wood v. Carpenter, 101 U.S. 135, 139 (1879)); see also
Moeller Bros. Body Shop, Inc., 306 NLRB 191 (1992) (holding
that the “Union is chargeable with constructive knowledge by
its failure to exercise reasonable diligence by which it would
have much earlier learned of the Respondent’s contractual non-
compliance”); Mathews-Carlsen Body Works, 325 NLRB 661,
662 (1998) (finding that had the union exercised reasonable
diligence, the union would have become aware that Respondent
had not made fringe benefit payments on behalf of a majority of
the employees); but see R.R.R. Restaurant, 314 NLRB 1267,
1268 (1994) (finding the union had no knowledge of the repu-
diation of benefits where the employer consistently made late
payments). The burden of showing such clear and unequivocal
notice is on the party raising Section 10(b) as an affirmative
defense. See Dedicated Services., 352 NLRB 753, 759 (2008).
The Board has, in various circumstances, held that knowl-
edge must be imputed directly to a union, and not to third par-
ties, in order for the union to have constructive knowledge of
an unfair labor practice. See Dedicated Services, supra (and
cases cited therein). Moreover, in situations involving unions
and benefit trust funds, it is well settled that the law recognizes
that labor organizations, and employers for that matter, are not
presumed to be affiliated with multiemployer benefit funds, or
to be anything but separate and distinct entities. NLRB v. Amax
Coal Co., 453 U.S. 322 (1981); Operating Engineers Local 12
(Griffith Co.), 243 NLRB 1121, 1125 (1979), affd. 660 F.2d
406, 411 (9th Cir. 1981). The activities of such a fund will be
binding on a labor organization only upon a specific showing of
agency responsibility. Service Employees Local 1-J (Shor Co.),
273 NLRB 929, 931 (1984). Here, Respondent has adduced no
such evidence and, to the contrary, has argued that these enti-
ties are unrelated. Overall, then, the Union, and not the Fund,
must have had knowledge of the wrongdoing in order for the
10(b) period to begin.
That being said, I do not agree with the General Counsel and
the Union that the Union was not in a position to know about
the delinquencies in pension contributions prior to the February
2009 conference call. I find that the record here shows that the
Union had sufficient facts at an earlier occasion to warrant the
exercise of due diligence in this matter.
In particular, I find that this occurred in October 2008, when
Blount wrote to Healthcare and Sunshine returning checks for a
period from August 2003 through January 2007 and sent a copy
of this letter to Union President Silva. In my view, the apparent
failure of the employer to remit contributions after January
2007 was sufficient notice to trigger the Union’s obligation to
inquire as to why there were no contributions received after that
date.59 While it can be argued that there was no “clear and un-
equivocal” evidence of wrongdoing at this point, the Union was
put on notice of facts that reasonably would have engendered
suspicion that an unfair labor practice had occurred and a sim-
ple inquiry would have revealed that the employer had ceased
making payments, as was the case after the Union and the Fund

59 I additionally note that Blount specifically noted that most of the
checks were more than 6 months old, yet another indication that timely
payments were not being made. In addition, for the foregoing reasons, I
do not credit Blount’s testimony that the Fund was unaware that the
Healthcare and Sunshine had ceased making contributions to the Fund
until February 2009.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1192
held their conference call. Ohio & Vicinity Regional Council of
Carpenters, supra; St. Barnabas Medical Center, supra;
Mathews-Carlsen Body Works, supra. I note that Respondent
has failed to adduce evidence of any reporting requirement or
any other basis for me to conclude that actual or constructive
knowledge had or should have occurred on a prior occasion,
and makes no such argument here. Accordingly, I find that it
was not until October 10, 2008, that the Union had sufficient
facts at its disposal to ascertain that the Employer had failed to
make contributions for the majority of the bargaining unit.60
Inasmuch as, by that time, the 2002 MOA had expired, a
timely charge had to be filed and served not more than 6
months after the Union received actual or constructive notice of
the unfair labor practice. See Chemung Contracting Corp., 291
NLRB 773 (1988); see also Park Inn Home for Adults, 293
NLRB 1082, 1083 (1989). Thus, here the Union was required
to file and serve its charge no later than 6 months after October
10, 2008, the date on which it should have known of the Em-
ployer’s alleged wrongdoing. See generally Concourse Nursing
Home, 328 NLRB 692, 694 (1999). (The 10(b) period does not
begin to run until the aggrieved party has received actual or
constructive notice of the conduct that constitutes the alleged
unfair labor practice.)
The Union filed its charge on April 9, 2009. The record
demonstrates that it was sent to the Respondent and its counsel
of record by the regional office on April 10, the following day.
In accordance with Section 102.113 of the Board’s Rules and
Regulations, the date of service is the day on which the charge
is deposited in the mail. See Sioux Quality Packers, 228 NLRB
1034, 1037 (1977); Heartshare Human Services, 339 NLRB
842, 847 (2003). Thus, the amendment to the charge was filed
and served within the 6-month period after the Union received
constructive notice of the unfair labor practice, albeit just
barely.61 Accordingly, I find that the Union’s charge was filed
and served in accordance with the provisions of Section 10(b)
of the Act.62
As noted above, the amended charge alleges a failure to re-
mit pension contributions dating from July 2007. The amended
complaint, however, alleges that the failure to remit such con-
tributions dates back to February 2007. Here, based upon the

60 I note that some 2 years earlier, in November 2006, Union Repre-
sentative Larry Alcoff exchanged e-mails with Fund Collections Man-
ager Jack Salm regarding the relationship between Castle Hill and
Healthcare and Sunshine. From these communications it is apparent
that the Union was aware that the Fund had failed to deposit the remit-
tances sent by Healthcare and Sunshine; however, employer contribu-
tions were still being made at that time. Therefore, there is an insuffi-
cient basis to impute to the Union constructive knowledge of any future
failure to remit contributions to the Fund.
61 See MacDonald’s Industrial Products, 281 NLRB 577 (1986)
(limitations period begins to run on the date after the alleged unfair
labor practice occurs and does not include the day of the alleged unfair
labor practice).
62 Sec. 102.14 of the Board’s Rules and Regulations provides that
the charging party shall be responsible for the timely and proper service
of the charge. However, the Board and the courts historically have held
that service by the Board’s regional office is sufficient, as long as it is
timely. See T.L.B. Plastics Corp., 266 NLRB 331 fn. 1 (1983), and
cases cited therein.
principles of Redd-I, supra, I find that the variance between the
charge and the allegations of the complaint are not time barred.
The charge and the complaint involve the same theory of viola-
tion of the Act, sequence of events and defenses interposed by
Respondent. In addition, the timing of the violation was a mat-
ter fully litigated at the hearing. See Concourse Nursing Home,
supra at 694 fn. 13.
c. The unilateral cessation of Pension
Fund contributions
Having found that the charge is timely filed and served and
the allegations of the complaint are not barred by the applicable
statute of limitations, I will now proceed to evaluate the evi-
dence adduced in this matter. As noted above, Blount testified
that the final checks from Healthcare and Sunshine were re-
ceived in July 2007, and were remittances for the month of
January 2007. This evidence, and Blount’s testimony that no
contributions were received thereafter, was unrebutted. There is
no evidence that the Union was afforded notice or an opportu-
nity to bargain over this issue at any relevant time.
Respondent argues that, since the Fund returned checks to
Healthcare and Sunshine, there is no evidence that the Em-
ployer deliberately failed to make contributions. Inasmuch as
the Employer ceased remitting contributions more than 1 year
prior to the return of any checks, the logic of this argument
escapes me. Nevertheless, in any event, applicable law makes
clear that an employer’s motive is not an element essential to a
finding that a unilateral change is violative of Section 8(a)(5).
NLRB v. Katz, 369 U.S. 736 (1962); Gulf Coast Automotive
Warehouse, 256 NLRB 486, 488–489 (1981); Merrill & Ring,
Inc., 262 NLRB 362 (1982). Here, Respondent had a continu-
ing obligation to make Fund contributions, notwithstanding any
apparent failure on the part of the Fund to act with some meas-
ure of diligence in this matter.
Accordingly, I find that Respondent has unlawfully ceased
remitting pension contributions for bargaining unit employees
in violation of Section 8(a)(1) and (5) of the Act, as alleged in
the complaint, as amended.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) and (5) of the
Act by delaying in or failing and refusing to provide certain
information requested by the Union in its letter of October 19,
2007, and at various points thereafter, which was necessary for
and relevant to the performance of the Union’s duties as the
exclusive collective-bargaining representative of employees in
the following appropriate unit:

All full-time and regular part-time certified nurses’ aides, die-
tary and housekeeping and recreation employees employed by
Respondent at its Union City, New Jersey facility.

4. The Respondent violated Section 8(a)(1) and (5) of the
Act by implementing its final offer and unilaterally changing
terms and conditions of employees in the above-described unit
CASTLE HILL HEALTH CARE CENTER 1193
without having reached agreement with the Union and in the
absence of a valid bargaining impasse.
5. The Respondent violated Section 8(a)(1) and (5) of the
Act by unilaterally ceasing to remit contributions to the SEIU
National Industry Pension Fund.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. In particular, I shall recommend that
the Respondent supply the requested information, other than
that which has already been provided to the Union. I further
recommend that the Respondent be ordered to place into effect
all terms and conditions of employment provided for by the
collective-bargaining agreement which expired on July 24,
2007, and to maintain those terms in effect until the parties
have bargained to a valid impasse, or the Union has agreed to
the changes. Provided, however, that nothing in this recom-
mended Order is to be construed as requiring that Respondent
cancel any unilateral changes that benefited the unit employees
without a request from the Union. I also recommend that the
Respondent be ordered to make whole the unit employees and
former unit employees for any loss of wages or other benefits
they suffered as a result of the Respondent’s implementation of
its final offer on or about July 11, 2007, or its unilateral discon-
tinuance of contributions to the SEIU National Industry Pen-
sion Fund in the manner prescribed in Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
with interest to be computed as provided for in New Horizons
for the Retarded, 283 NLRB 1173 (1987). This includes reim-
bursing unit employees for any expenses resulting from Re-
spondent’s unlawful changes to their contractual benefits, as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), affd. 661 F.2d 940 (9th Cir. 1981), with interest as set
forth in New Horizons, supra. I further recommend that the
Respondent be ordered to make all contributions to any fund
established by the collective-bargaining agreement with the
Union which was in existence on July 24, 2007, and which
contributions the Respondent would have made but for the
unlawful unilateral changes, including all required contribu-
tions to the SEIU National Industry Pension Fund, including
any additional amounts due to the funds in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 6
(1979).63
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended64

63 I leave for the compliance portion of these proceedings the appro-
priate computation of interest and additional sums due with respect to
those Fund remittances which had been timely made by the Employer
but not processed by the Fund.
64 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
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ORDER
The Respondent, Castle Hill Health Care Center, Union City,
New Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to provide to the Union, or unnecessarily delaying
in providing information that is relevant and necessary to the
Union’s performance of its duties as the collective-bargaining
representative of the Respondent’s employees in the following
unit:

All full-time and regular part-time certified nurses aides, die-
tary and housekeeping employees and recreation employed by
Respondent at its Union City, New Jersey facility.

(b) Failing to comply with the terms and conditions of em-
ployment that are set forth in the collective-bargaining agree-
ment with the Union that expired on July 24, 2007, until a new
contract is concluded or good-faith bargaining leads to an im-
passe, or the Union agrees to changes.
(c) Implementing terms and conditions of employment that
are different from those in the collective-bargaining agreement
which expired on July 24, 2007, before a new contract is con-
cluded or good-faith bargaining leads to a valid impasse, or the
Union agrees to the changes.
(d) Failing and refusing to remit contributions owed to the
SEIU National Industry Pension Fund.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Restore, honor and continue the terms and conditions of
employment set forth in the collective-bargaining agreement
with the Union that expired on July 24, 2007, until a new con-
tract is concluded or good-faith bargaining leads to an impasse,
or the Union agrees to changes.
(b) Make whole employees and former employees for any
and all loss of wages and other benefits incurred as a result of
Respondent’s unlawful alteration or discontinuance of contrac-
tual benefits, with interest, as provided for in the remedy sec-
tion of this decision.
(c) Make contributions, including any additional amounts
due, to any fund established by the collective-bargaining
agreement that was in existence on July 24, 2007, and which
Respondent would have paid but for its unlawful unilateral
changes, as provided for in the remedy section of this decision.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Union City, New Jersey, copies of the attached notice
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1194
marked “Appendix.”65 Copies of the notice, on forms provided
by the Regional Director for Region 22 after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,

65 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.”
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since October 19,
2007.
(f) 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.