Gateway Care Center

National Labor Relations Board - Administrative Judge Opinions

Dec 28, 2009

22-CA-028708 (N.L.R.B. Dec. 28, 2009)

JD(NY)-47-09
Eatontown, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
GATEWAY CARE CENTER
AND CASE 22-CA-28708
1199 SEIU HEALTHCARE WORKERS EAST,
NEW JERSEY REGION
Laura Elrashedy, Esq., for the General Counsel
Neil M. Frank, Esq., and Patricia Pastori, Esq.,
(Frank & Associates, 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 collective-bargaining
agreement. Respondent denies that it has engaged in any violations of the Act.
On the entire record, including my observation of the demeanor 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.
Annually, Respondent derives gross revenue in excess of $250,000 and purchases and
receives at its Eatontown facility goods valued in excess of $5,000 directly from points outside
the Sate 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 meaning of section 2(14) of the Act, and that the Union is a labor organization with 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 collective-bargaining representative
of Respondent’s employees in the following appropriate unit:
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All of Respondent’s employees employed at its Eatontown facility, excluding all office
clerical employees, sales employees, professional employees including registered
nurses, licensed practical nurses, cooks, guards and supervisors as defined 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 admits 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 expiring 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.
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
represents 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 reference 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 explaining the life insurance benefits and a two page chart
summarizing 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 non-compliance with the terms of the MOA.
When the MOA was signed on February 15, 2007 the parties 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 five month period during which, Frank testified, he could not “get to it” St. Hilaire offered
to have the contract typed. The Union then proceeded with the preparation of the written
collective-bargaining agreement. 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

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.
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parties went through the document page by page. Frank suggested that each party should
initial each page to show that the page was approved. Frank made some changes to the
document 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 “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, writing 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 paragraphs 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 15 C, 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 three. 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
February 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.”
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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 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
contract 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, enclosing 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 order to make it easy, I
send 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 discover 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 renegotiation 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 regard 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 December 30, 2008.
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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 handwriting has been accurately rendered. Frank’s
letter says that a provision on minimum wage was omitted; however, it appears in Article 10 C 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 concerning
the computation of gross payroll for the purpose of calculating 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 subject 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 document 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 respond to his calls. The Union sent a clean typed copy of the
agreement to Frank on August 4, 2008 with a request that Respondent return a signed copy.
Respondent did not sign the contract and it is clear that Respondent refuses sign the contract. 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

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 Respondent
wanted this limitation to apply to contributions required by the 2007-2011 contract to the
Pension Fund, the Training and Education 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.
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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 employment 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 employees 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 employees, professional employees including registered
nurses, licensed practical nurses, cooks, guards and supervisors as defined 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 unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
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 corrections 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
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

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 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.
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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 effectuate the policies of the Act.
(a) Execute the February 15, 2007 – February 14, 2011 collective-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 facility 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 conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. 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 employees 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.
Dated, Washington, D.C., December 28, 2009.
____________________
Eleanor MacDonald
Administrative Law Judge

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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)-47-09
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to sign the contract with 1199 SEIU Healthcare Workers East, New
Jersey Region, for the term February 15, 2007 to February 14, 2011 for the following unit:
All of Respondent’s employees employed at its Eatontown facility, excluding all office
clerical employees, sales employees, professional employees including registered
nurses, licensed practical nurses, cooks, guards and supervisors as defined in the Act.
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 SIGN the Union contract.
GATEWAY CARE CENTER
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
20 Washington Place, 5th Floor
Newark, New Jersey 07102-3110
Hours: 8:30 a.m. to 5 p.m.
973-645-2100.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 973-645-3784.