Gateway Care Center

National Labor Relations Board - Board Decisions

Nov 19, 2010

356 N.L.R.B. 159 (N.L.R.B. 2010)

GATEWAY CARE CENTER 159
Gateway Care Center and 1199 SEIU Healthcare
Workers East, New Jersey Region. Case 22–
CA–28708
November 19, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
On December 28, 2009, Administrative Law Judge El-
eanor MacDonald issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
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,2 and conclusions, to
modify his remedy,3 and to adopt the recommended Or-
der as modified.4
AMENDED REMEDY
In addition to the relief recommended by the adminis-
trative law judge, we shall order the Respondent to give
retroactive effect to the collective-bargaining agreement
and to make whole the unit employees for any losses
1 Member Pearce is recused and has taken no part in considering this
case.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s finding that the Respondent unlawfully re-
fused to execute a collective-bargaining agreement, we do not rely on
Miron & Sons Laundry, 338 NLRB 5, 12 (2002), cited by the judge.
Instead, we rely on Windward Teachers Assn., 346 NLRB 1148 (2006),
and Alexandria Manor, 317 NLRB 2 (1995).
The Respondent’s request for oral argument is denied, as the record,
exceptions, and briefs adequately present the issues and the positions of
the parties.
3 The judge failed to provide any make-whole relief for the Re-
spondent’s failure to execute and implement the contract. We shall
modify the judge’s remedy and recommended Order and substitute a
new notice to include a make-whole provision. See, e.g., Brookville
Health Care Center, 337 NLRB 1064, 1068 (2002); West Co., 333
NLRB 1314, 1317 (2001). In accordance with our decision in Ken-
tucky River Medical Center, 356 NLRB 6 (2010), we shall require that
any monetary award shall be paid with interest compounded on a daily
basis.
4 We shall modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010). For the reasons stated in his dissenting opinion in J. Picini
Flooring, Member Hayes would not require electronic distribution of
the notice.
attributable to its failure to execute the agreement, as set
forth in Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), and Kraft Plumbing
& Heating, 252 NLRB 891 (1980), enfd. mem. 661 F.2d
940 (9th Cir. 1981), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
Interest shall be compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Gateway
Care Center, Eatontown, New Jersey, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Insert the following after paragraph 2(a) and reletter
the subsequent paragraphs.
“(b) Give the agreement retroactive effect to March 14,
2008.
“(c) Make unit employees whole for any loss of earn-
ings and other benefits they have suffered as a result of
the Respondent’s failure to execute the agreement, plus
daily compound interest as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010), as set forth in the
amended remedy section of the decision.
“(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security records, timecards, personnel
records and reports, and all other records, including an
electronic copy of the records if stored in electronic
form, necessary to analyze the amount of backpay, if
any, due pursuant to this Order.”
2. Substitute the following for relettered paragraph
2(e).
“(e) Within 14 days after service by the Region, post at
its Eatontown, New Jersey facility, copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered 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
356 NLRB No. 34

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 160
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since August 4, 2008.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to execute the written col-
lective-bargaining agreement with 1199 SEIU Healthcare
Workers East, New Jersey Region, agreed to by the Un-
ion and us on March 14, 2008, and submitted for signing
on August 4, 2008.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL execute the February 15, 2007 through Feb-
ruary 14, 2011 collective-bargaining agreement agreed to
by the Union and us, attaching the chart summarizing
health care insurance provided through United Health
Plus.
WE WILL give the agreement retroactive effect to
March 14, 2008.
WE WILL make unit employees whole for any loss of
earnings and other benefits they have suffered as a result
of our failure to execute the agreement, with daily com-
pound interest as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010).

GATEWAY CARE CENTER

Laura Elrashedy, Esq., for the General Counsel.
Neil M. Frank, Esq. and Patricia Pastori, Esq. (Frank & Asso-
ciates, PC), of Farmingdale, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was heard in Newark, New Jersey, on June 9, 2009. The
complaint alleges that Respondent, in violation of Section
8(a)(5) and (1) of the Act, has refused to execute a written col-
lective-bargaining agreement. Respondent denies that it has
engaged in any violations of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent on September 14,
2009, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a nursing home with an office and place of
business in Eatontown, New Jersey, is engaged in the operation
of a medical facility providing inpatient medical care. Annual-
ly, Respondent derives gross revenue in excess of $250,000 and
purchases and receives at its Eatontown facility 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 Section 2(2), (6),
and (7) of the Act and a health care institution within the mean-
ing of Section 2(14) 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
Since about 2001, the Union has been the exclusive collec-
tive-bargaining representative of Respondent’s employees in
the following appropriate unit:

All of Respondent’s employees employed at its Eatontown
facility, excluding all office clerical employees, sales employ-
ees, professional employees including registered nurses, li-
censed practical nurses, cooks, guards and supervisors as de-
fined in the Act.

Respondent and the Union have been parties to successive
collective-bargaining agreements, the most recent of which
expired on November 1, 2005. The Respondent’s answer ad-
mits paragraph 10 of the complaint which alleges, “On or about
March 14, 2008, the Union and Respondent reached complete
agreement on terms and conditions of employment of the unit
to be incorporated in a collective-bargaining agreement.”
B. The Negotiations
The negotiations for the successor agreement to the one ex-
piring in 2005 took place from 2006 to 2007. Union Agent
Ronald McCalla was assigned by the International to assist the
Local in negotiations. Local Executive Vice President Clauvice
St. Hilaire was the chief negotiator for the Union. The chief
negotiator for Gateway Care Center was Neil Frank, Esq.
GATEWAY CARE CENTER 161
On February 15, 2007, the parties signed a memorandum of
agreement for a contract with a term from February 15, 2007 to
February 14, 2011. There is no dispute that this MOA repre-
sents the agreement between the Union and Respondent. The
MOA consists of three pages handwritten by Frank which deal
with wages, contributions to various union funds, and a new
health insurance provision which replaced the Union health
insurance fund.1 The handwritten pages incorporate by refer-
ence certain paragraphs of a typed union proposal which is
attached to and is a part of the MOA. Also attached to the
MOA and a part of the agreed-upon contract, is a letter explain-
ing the life insurance benefits and a two-page chart summariz-
ing the provisions of the new United Health Plus policy to be
provided by the employer. The MOA continued unchanged the
terms of the previous collective-bargaining agreement except as
modified by the agreement of February 15, 2007.
The MOA of February 15, 2007, was put into effect after the
employees ratified the contract. The provisions relating to
arbitration, union security, and checkoff were reinstated. The
Union has not been aware of an instance of noncompliance
with the terms of the MOA.
When the MOA was signed on February 15, 2007, the par-
ties discussed the desirability of compiling a document that
would pull together all the contract language from the various
documents referred to in the MOA. Frank stated that his office
would undertake this task, but after a 5-month period during
which, Frank testified, he could not “get to it” St. Hilaire of-
fered to have the contract typed. The Union then proceeded
with the preparation of the written collective-bargaining agree-
ment. The union representatives met with Frank on more than
one occasion to go over and correct successive typed drafts of
the contract.2 Eventually, St. Hilaire prepared a final draft and
the parties met on March 14, 2008.
McCalla testified that he and St. Hilaire attended the March
14, 2008 meeting on behalf of the Union. Frank was there
representing Respondent Gateway. According to McCalla, the
parties went through the document page by page. Frank sug-
gested that each party should initial each page to show that the
page was approved. Frank made some changes to the docu-
ment and these were approved by the Union. McCalla saw
Frank and St. Hilaire initial each page of the document at the
bottom of the page.
St. Hilaire testified that Frank made some changes to the
draft; the paragraphs which were altered were initialed by the
parties. St. Hilaire stated that he and Frank initialed the bottom
of each page of the March 14 draft to signify the parties’
agreement to that specific page.
Every page of the draft prepared by the Union and reviewed
by the parties on March 14, 2008 is initialed at the bottom by
both St. Hilaire and Frank. St. Hilaire generally initialed by
writing his monogram as “CSH” and then the date written as
1 Frank wrote in his hand the amount of the employer’s contribution
to the Alliance Fund, the Pension Fund, and the Training and Education
Fund. He included a Legal Fund, but the Union no longer has such a
fund.
2 There were at least two such meetings and possibly a third between
February 15, 2007, and March 14, 2008.
“3/14/08.” Frank used a number of methods in initialing the
document. He most often wrote his monogram as “NF” and
then the date “3/14/08.” He made errors on some pages, writ-
ing the date as “3/4/08” or as “3/18/08.” The handwritten
changes to the March 14 document are all in Frank’s hand.
These changes were made by inserting words and phrases into
the typed matter and/or crossing out typed matter. For the most
part, the paragraphs where these corrections appear are initialed
by Frank and St. Hilaire. In some cases only Frank initialed the
changes. Also, Frank placed his initials next to some para-
graphs where no changes were made in the typed document. In
a few locations, Frank placed brackets around a sentence or
two; the language in brackets was not crossed out or changed.
Frank’s initials and the date appear next to the brackets in some
of these instances. Many pages of the document have no
changes at all and the only handwriting on these pages consists
of the initials and dates that Frank and St. Hilaire placed at the
bottom.
At the instant hearing, Frank cross-examined McCalla at
length with the apparent object of showing that the March 14,
2008 document was not an accurate transcription of the MOA
of February 15, 2007. McCalla acknowledged that there is a
typographical error on the March 14, 2008 document initialed
by the parties. In article 15C, bereavement leave, the phrase
was typed to read “the employee shall be entitled to three (4)
days of paid leave.” According to McCalla, the correct number
is 3. Apparently Frank did not notice this typographical error
when he and St. Hilaire initialed the bottom of page 18 on
which this provision appears. McCalla explained that the two-
page chart summarizing the benefits under the new employer-
provided health insurance policy was not attached to the March
14, 2008 contract. It was never intended that this chart should
be retyped; the chart would be duplicated and attached to the
copies of the signed contract to be given to the members and to
Respondent. The two pages comprising the United Health Plus
insurance had been initialed by Frank and St. Hilaire on Febru-
ary 15, 2007, when they executed the MOA. Respondent does
not dispute the existence of an agreement relating to health
insurance.
According to St. Hilaire, on March 14, 2008, Frank did not
say that the agreement was contingent on his client’s approval.
Frank did not say that he needed his client’s approval before
signing the final copy of the contract. McCalla testified that on
March 14, 2008, Frank never said that agreement had not been
reached on all items in the initialed draft; Frank said nothing
about the agreement being contingent on his client’s approval.
Frank testified that on March 14, 2008, he told the Union
that, “I could not sign the [entire agreement] and I had to take
this back to my client.” Frank also testified that he only agreed
to those paragraphs where his initials appear. Frank could not
explain why he did not initial some paragraphs where he had
written in changes. In response to the question of what was
meant by the fact that on March 14, he had initialed the bottom
of each page of the document next to St. Hilaire’s initials,
Frank responded, “I don’t know what it meant.” Frank added,
“[I]f that was a mistake, it was my mistake.”
St. Hilaire testified that on March 14, 2008, Frank said it was
not a good idea to sign the contract with all of the handwritten

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 162
additions. He asked the Union to have a clean copy typed up.
The parties agreed that the Union would have the agreement
typed into a clean copy and they would sign the clean copy.
After the contract was signed, the Union would print the con-
tract for distribution to the members and provide the customary
two copies to Respondent.
McCalla and St. Hilaire prepared a final clean copy of the
March 14, 2008 collective-bargaining agreement. St. Hilaire
testified that beginning in April 2008, he called Frank several
times to arrange for a date to sign the contract but he did not
receive a response to his requests.
On August 4, 2008, St. Hilaire sent a letter to Frank, enclos-
ing a typed copy of the contract which incorporated the changes
made by Frank on the March 14 document initialed by St.
Hilaire and by Frank. St. Hilaire wrote:

I am writing to follow up the discussion that I had with your
secretary on July 18, 2008 after she called me to cancel the
meeting that [was] supposed to take place in NY so we could
finalize the CBA for Gateway Health Care Center. . . . In or-
der to make it easy, I send [sic] you two signed copies of the
CBA. Can you sign both copies? Keep one for you and send
one signed copy to the Union.

In the months following August 4, 2008, McCalla called
Frank’s office many times to arrange for signing the contract
but he could not reach Frank. On November 19, 2008, McCalla
wrote to Frank detailing the bargaining history and complaining
that, “We have both a signed MOA and agreement on the full
document yet we can’t get the completed contract signed by
Gateway management nor can we even speak with you to dis-
cover why we can’t complete this work.” McCalla closed by
asking Frank to contact him.
Frank replied to McCalla on November 20, 2008 as follows:

I would like to meet with you to discuss a few concerns my
client has with the Contract. In sum, some of the provisions
do not match the actual practice at the facility. My client
would like these clarified.

On November 26, 2008, McCalla wrote to Frank stating:

[T]he Union will under no circumstances entertain renegotia-
tion of any terms of our collective bargaining agreement. The
CBA stands as is. However the Union would be willing to
meet to help clarify the application of any provisions that
Gateway management does not fully understand. In this re-
gard please give us a list within ten days of the provisions that
need clarification.

On December 12, 2008, Frank wrote to McCalla that he
would send a list of his client’s concerns by the next week, and
he suggested a meeting on December 22 or 23. He asked that
McCalla contact him to confirm the meeting.
McCalla never received the list promised by Frank. He
called Frank’s office on December 22, 2008, to ask that the list
be faxed to him and he was told that the meeting dates Frank
had earlier offered to the Union were not good.
The Union filed its charge in the instant proceeding on De-
cember 30, 2008.
Frank wrote to the Union on May 18, 2009, shortly before
the date of the instant hearing. The letter cites some minor
typographical errors in the typed contract sent to Respondent on
August 4, 2008. The letter also states that Frank’s handwriting
has not been accurately typed in the “Duration” section of the
contract. However, I have compared Frank’s handwritten
changes with the typed document and I find that the handwrit-
ing has been accurately rendered. Frank’s letter says that a
provision on minimum wage was omitted; however, it appears
in article 10C of the typed contract.
It appears from Frank’s May 18, 2009 letter and from
Frank’s testimony, that the contract initialed on March 14, 2008
did not include some language desired by Respondent concern-
ing the computation of gross payroll for the purpose of calculat-
ing employer contributions to the various employee benefit
funds.3 Frank testified that the gross payroll issue was not
discussed on March 14, and there was no language on this sub-
ject in the draft initialed by the parties.4 Frank testified that he
did not write anything in the contract on this subject and he said
“that’s the problem. There is supposed to be.” Frank recalled
that he became aware of the absence of the desired language in
either October 2008 or January 2009, when his client raised the
issue with him.
C. Discussion and Conclusions
I credit St. Hilaire and McCalla as to what was said and done
at the March 14, 2008 meeting. I credit them that Frank did not
say that his agreement was contingent on his client’s approval.
I credit St. Hilaire and McCalla that the significance of Frank’s
and St. Hilaire’s initials at the bottom of each page of the doc-
ument was that both Frank and St. Hilaire had agreed to the
provisions of the page as typed and as changed in Frank’s own
handwriting. I do not credit Frank’s testimony about what he
said at the March 14, 2008 meeting. I find that he said nothing
about needing his client’s approval. I find that Frank initialed
the bottom of each page of the agreement, as he himself had
suggested, to indicate that he agreed to the language on the
page. I find that Frank’s recollection about the meeting was
confused and his testimony was at odds with his actions on
March 14, 2008. The credible testimony and the documentary
evidence convince me that Frank and the union representatives
agreed on the final language of a contract on March 14, 2008
and that they signified their agreement by initialing each page
of the draft after they had reviewed it.
I find that on March 14, 2008, Respondent and the Union
agreed on the provisions of the collective-bargaining agreement
for the period February 15, 2007, to February 14, 2011. St.
Hilaire telephoned Frank several times beginning in April 2008,
to arrange for execution of the contract but Frank did not re-
3 The 2002–2005 contract, in the section entitled, “Health Benefits,”
had limited the definition of gross payroll so as to require employer
contributions to the Welfare Fund based on straight time hourly rates.
Benefits were excluded from the definition of gross payroll. The Re-
spondent wanted this limitation to apply to contributions required by
the 2007–2011 contract to the Pension Fund, the Training and Educa-
tion Fund, and the Alliance Fund.
4 Frank could not recall if this issue was discussed during the 2007
negotiations leading up to the MOA of February 15, 2007.

GATEWAY CARE CENTER 163
spond to his calls. The Union sent a clean typed copy of the
agreement to Frank on August 4, 2008, with a request that Re-
spondent return a signed copy. Respondent did not sign the
contract and it is clear that Respondent refuses to sign the con-
tract. I find that Respondent unlawfully refused to execute the
contract after a typed agreement was sent to Frank on August 4,
2008, with a request for a signature. Miron & Sons Laundry,
338 NLRB 5, 12 (2002).
Indeed, the above finding is consistent with and required by
Respondent’s answer herein. As stated above, Respondent’s
answer admits paragraph 10 of the complaint which asserts,
“On or about March 14, 2008, the Union and Respondent
reached complete agreement on terms and conditions of em-
ployment of the Unit to be incorporated in a collective-
bargaining agreement.”
CONCLUSIONS OF LAW
1. 1199 SEIU Healthcare Workers East, New Jersey Region
is the exclusive collective-bargaining representative of the em-
ployees of Respondent Gateway Care Center in the following
appropriate unit:

All of Respondent’s employees employed at its Eatontown
facility, excluding all office clerical employees, sales employ-
ees, professional employees including registered nurses, li-
censed practical nurses, cooks, guards and supervisors as de-
fined in the Act.

2. Since August 4, 2008, by failing and refusing to execute
the written collective-bargaining agreement agreed to by the
parties on March 14, 2008, Respondent has violated Section
8(a)(5) and (1) of the Act.
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.
I have found above that the parties agreed to the 2007–2011
collective-bargaining agreement as typed and corrected by hand
and then initialed on March 14, 2008. I have found that the
Union submitted a typed document incorporating the correc-
tions on August 4, 2008. The Respondent must be ordered to
execute the collective-bargaining agreement. The two-page
chart summarizing the health insurance benefits provided
through United Health Plus shall be attached to the August 4,
2008 typed document at signing.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
ORDER
The Respondent, Gateway Care Center, Eatontown, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to execute the written collective-
bargaining agreement with 1199 SEIU HealthCare Workers
East, New Jersey Region, agreed to by the Respondent and the
Union on March 14, 2008, and submitted for signing on August
4, 2008.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Execute the February 15, 2007–February 14, 2011 collec-
tive-bargaining agreement agreed to by the Respondent and the
Union with the attached chart summarizing the health insurance
provided through United Health Plus.
(b) Within 14 days after service by the Region, post at its fa-
cility in Eatontown, New Jersey, copies of the attached notice
marked “Appendix.”6 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,
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 August 4,
2008.
(c) 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.
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 pur-
poses.
6 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.”