Harbor View Health Care Center

National Labor Relations Board - Administrative Judge Opinions

Mar 10, 2010

22-CA-028151 (N.L.R.B. Mar. 10, 2010)

JD(NY)–08–10
Jersey City, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
HARBOR VIEW HEALTH CARE CENTER
and Case No. 22-CA-28151
22-CA-28347
SEIU 1199 NEW JERSEY HEALTH CARE UNION
Saulo Santiago, Esq. Newark, NJ,
for the General Counsel
David F. Jasinski, Peter P. Perla, and
Ian A. Weinberger, Esqs., (Jasinski, P.C.,
Newark, NJ),
for the Respondent
DECISION
Statement of the Case
Mindy E. Landow, Administrative Law Judge. This case stems from charges in Case
Nos. 22-CA-28151, 22-CA-28347 filed on December 3, 2007 and April 30, 2008, respectively,
by SEIU 1199 New Jersey Health Care Union (1199NJ or the Union) against Harbor View
Health Care Center, (Harbor View, the Employer or Respondent). On July 29, 2008, the
Regional Director for Region 22 issued an Order Consolidating 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 Act. The complaint
alleges, in essence, that Respondent unlawfully failed to and delayed in providing information to
the Union and that it unilaterally implemented terms and conditions of employment for
employees 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, as
relevant, in further detail below.
On September 3, 2009, based upon an amended charge filed in Case No. 22-CA-28151,
Counsel for the General Counsel issued a notice of motion to amend the complaint to further
allege that Respondent unilaterally failed and refused to make contractually required pension
fund contributions, and so moved at the inception of the hearing. 1 Respondent denied the
material allegations of the amendment to the complaint and argued that they do not relate back
to the original charge and are time-barred by Section 10(b) of the National Labor Relations Act.2

1 At the hearing, I reserved ruling on the motion. As discussed below, General Counsel’s
motion to amend the complaint is hereby granted.
2 In its answer to the complaint, Respondent asserts a Section 10(b) defense generally, “to
the extent [the complaint] refers to or relies upon events and circumstances occurring beyond
the limitations period. . .” Other than those allegations relating to Respondent’s alleged failure
to make pension fund contributions, Respondent has failed to specify any other allegation of the
complaint which it is contesting on this basis, and does not raise any such claims in its post-
hearing brief. It is well settled that the party raising an affirmative defense bears the burden of
proof. As Respondent has failed to specify those allegations of the complaint to which such an
Continued
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A hearing on this matter was held before me on September 3, 17, 30 and October 1,
2009 in Newark, New Jersey. On the entire record, including my observation of the demeanor of
the witnesses,3 and after considering the briefs filed by the General Counsel and Respondent, I
make the following
Findings of Fact
I. Jurisdiction
Respondent, a New Jersey corporation with a facility located in Jersey 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 $5,000 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 that the Union is a
labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Contract Negotiations and Related Requests for Information
1. Background
As noted above, Respondent operates a long-term health care facility in Rochelle Park,
New Jersey. It it one of several facilities operated by the Omni Management Corporation,
(Omni), a company that manages a number of nursing homes in New Jersey including Castle
Hill Health Care Center, Bristol Manor Health Care Center and Palisade Nursing Center
(hereafter Castle Hill, Bristol Manor 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 licensed practical
nurses (LPNs) certified nurses aides (CNAs), nurses aides, dietary and housekeeping
employees and recreation employees.4 The Union or its predecessor has represented
employees at this facility since about 1992 and there have been a series of collective-bargaining
agreements entered into by the parties since that time. It appears from the record, however,
that these agreements consist primarily of memoranda setting forth economic terms and
amendments to the prior agreeement. The most recent of these was a five-year memorandum
of agreement which expired on July 24, 2007 (the 2002 MOA). The MOAs for Castle Hill, Bristol
_________________________
affirmative defense might apply, or to cite any evidence to support the general assertions
contained in its answer, I conclude that it has failed to meet its burden of proof in this regard.
3 Credibility resolutions have been made based upon a review of the entire record and all
exhibits in this proceeding as well as an assessment of the demeanor of the witnesses. In
addition, the inherent probability of the testimony has been utilized to assess credibility. Where
there is an apparent conflict in the evidence of particular relevance to my determinations herein,
I have endeavored to explain the specific basis for my conclusions. Otherwise, testimony
contrary to my findings below has been discredited on some occasions because it was in
conflict with the credited testimony of others, otherwise incompatible with more reliable evidence
or because it was inherently incredible or unworthy of belief.
4 Respondent amended its answer at the hearing to admit the appropriate unit.
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Manor 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 Harbor View 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 bargaining for a successor agreement commenced in June 2007 and continued until
March 2008. Respondent then declared impasse and implemented its final offer on or about
April 1, 2008. There were no further meetings until August 2009 when, subsequent to a three-
day strike at the Omni facilities referenced herein, a negotiation was scheduled and held in
September 2009. Throughout the 2007-2008 negotiations Respondent represented by its
attorney David F. Jasinski, who was the lead negotiator, and consultant Mendy Gold.5 With the
exception of the last session, the Union was represented in bargaining primarily by executive
vice-president Clauvice Saint Hilare, assisted by international representative Ron McCalla.
There was also an employee bargaining committee which attended each scheduled session. In
addition, in about August 2007, the Union asked for a federal mediator. Respondent agreed to
this request, and James Kinney was appointed by the Federal Mediation and Conciliation
Service (FMCS) to assist in the negotiations.
2. The April and June Requests for Information, and Respondent’s Initial Response
In anticipation of bargaining, on April 25, 2007, Saint Hilare wrote to Harbor View
administrator Kevin Woodward 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 Gold did not testify herein.
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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), 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 replied to this information request on June 1,
2007. He enclosed a list of employee names with addresses, job classifications, wage rates,
dates of hire, job status, health insurance coverage and average hours for a two-week period.
On June 4, Saint Hilare responded to Jasinski in relevant part, as follows:
The Union has made numerous unsuccessful attempts to scheule negotiations by phone
and in writing. We have received part of the info requested for Palisade, Castle Hill and
Bristol Manor. The Union is available for bargaining on June 14, 19, 20 and 21, 2007.
The Union suggests we start with Castle Hill. Please advise regarding your availability.
The Union has no problem bargaining at the facility or at the Union’s office.
As of today, we have received no response to the bargaining notice to Harborview
Health Care Center and no response to the info request. A the last phone conversation,
you said that you are the counsel assigned to negotiation the Harborview contract but w
have received no indication in writing that you are the negotiator for this Nursing Home.
For the record, I just want you to know that the package you sent to the Union contains
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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:
ï‚· 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.
ï‚· The gross bargaining unit payroll from January 1 2007 through June 30 2007 for
Palisades, Bristol Manor and Castle Hill.
Jasinski subsequently sent to the Union a copy of Respondent’s employee handbook,
benefits rider and summary description plan for its health insurance, which listed the various
benefits offered to employees and set forth the costs to employees for dependent health care
coverage. 6
3. The First Bargaining Session -- June 19, 2007
This session was attended by Jasinski, Gold, Saint Hilare and an employee bargaining
committee. Saint Hilare opened the meeting by stating that the Union’s goal was to establish a
statewide standard where members would get equal pay for equal work. The Union also wanted
to add language to the contract to create a better work environment and smooth the relationship
between management and employees. Saint Hilare also stated that the Union was seeking
affordable health insurance and enhanced pension benefits for employees.
Jasinski testified that he understood the Union’s reference to statewide standards to
mean the so-called “Tuchman Agreement,” a multi-employer collective-bargaining agreement
negotiated by the Union with various other nursing homes and rehabilitation facilities in New
Jersey. 7 He further stated 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
dependent coverage. Jasinski told Saint Hilare that the Employer wanted to negotiate a contract
for Harbor View that addressed the unique needs of the facility, its employees and its residents.
Jasinski additionally made it clear that the Employer had no interest in participating in the
Union’s health plan, noting that it had experienced financial difficulties and the participating
employers had had to increase their contributions to the fund.
After these initial presenations, the Union submitted its contract proposal, which
contained economic and non-economic terms. The Union sought a three-year agreement with
various modifications from existing terms and conditions including, among other things, a

6 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.
7 Jasinski subsequently testified that Saint Hilare referred to a “master agreement,” but this
testimony was adduced through a leading question from Respondent’s counsel and I do not find
that Saint Hilare made any such allusion.
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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 covered
exclusvely by the employer, the addition of parental and marriage leave and a health and safety
clause which provided for a “zero lift” policy as well as the establishment of a health and safety
committee. With regard to wages, the Union proposed a seven percent across-the-board raise
for each of the three years of the agreement with minimum hourly salaries effective as of July
2009 of $11.00 for CNAs and $10.00 for dietary and housekeeping (also referred to as Grade 1)
employees.8 The proposal further provided that the employer would make contributions to the
Union pension fund of three percent of gross payroll for each non-probationary employee
covered by the agreement. Although the parties went through this proposal, there was little
substantive discussion of it at the time. 9
Saint Hilare then addressed the April 25 information request. Certain items sought had
not been provided including information regarding employee overtime, the identification of no-
frill employees,10 OSHA records, agency usage and work schedules. Saint Hilare provided
Jasinski with a copy of his April 25 letter with the outstanding items noted. Jasinski told Saint
Hilare that the Union that the information it was seeking was irrelevant to the process and that
the Union already had sufficient information to enable it to bargain for a contract but that he
would look into providing additional information nonetheless.
There was also a discussion of the lack of a contemporary full collective-bargaining
agreement. The parties both had a series of partial contracts, primarily addressing economic
terms, but for years there had been no full agreement executed. According to Saint Hilare,
Jasinski volunteered to prepare a document which represented the current terms and conditions
of employment applicable to all the Omni facilities. Jasinski, to the contrary, testified that he
agreed to the Union’s request that he do so. Saint Hilare asked that Jasinski provide copies of
the underlying documents he relied upon to prepare the compilation.
4. Interim Correspondence
On June 22, 2007, Jasinski wrote to Saint Hilare and enclosed additional information; i.e.
the gross wages for January through December 2006 and January through March 2007 and the
aggregate costs for health and dental premiums and life insurance for the same period of time.
On July 17, 2007, Saint Hilare sent the Employer a proposed contract extension. By
letter dated July 24, Jasinski enclosed a revised extension agreement providing that the
contract would be extended to September 7 and providing that all changes to the agreement
would become effective upon approval and ratification of the parties.

8 Although the Tuchman Agreement had contract minimums of $11 and $10 for CNAs and
Grade 1 employees, respectively, the term of that agreement was from 2005 to 2009.Saint
Hilare testified, without rebuttal, that such minimum salaries took effect for certain nursing
homes as early as 2005. Additionally, under the Tuchman Agreement, employees are eligible
for employer-funded dependent health insurance after being employed for six months.
9 Respondent adduced and relies upon testimony from Saint Hilare and McCalla that with
regard to this, and all subsequent Union proposals, the proposals were formulated and
submitted with the information the Union already had in its possession.
10 No-frill employees are those who have agreed to forego certain contractual benefits for an
enhanced wage rate. Under the 2002 MOA, the Employer was limited to offering such terms to
10 employees.
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Thereafter, on July 27, Respondent sent additional information to the Union responsive
to its prior requests: in particular, a corrected list of employee names, addresses, job
classifications, wage rates, dates of hire job status, heathi insurance coverge and average
hours for a two-week period during the prior six months. Jasinski asserted that this submission
had completed the Union’s information request.
On August 8, 2007, Saint Hilare sent a letter to Respondent suggesting bargaining dates
for the Omni facilities during the month of August. The letter advised the Employer that the
Union had contacted the New Jersey State Board of Mediation to secure a mediator and further
noted that the Union had not received a management proposal at any of the Omni tables and
requested that management put forward proposals at the next bargaining session for each of
the facilities. In this letter, Saint Hilare further asserts:
We are in receipt of your Bristol Manor document compiling the various memorandums
of agreement into one document. Needless to say we have many questions concerning
this document. You agreed to supply a similar compilation document for each of the
other Omni facilities and to supply copies of the MOAs that you used to produce each
compilation document. Please inform us of the date you expect to complete this work.
5. The “Compilation Document”
The parties had mutually acknowledged the fact that the disarray in their contract files
coupled with the lack of an integrated contemporaneous collective-bargaining agreement
presented an obstacle to negotiations. Thus, on June 19, the Employer had agreed to prepare a
document representing existing terms and conditions of employment for the various Omni
facilities.
When Saint Hilare and McCalla reviewed the document they found that it did not
accurately represent existing terms and conditions of employment. For example, the
probationary period had been extended from 60 to 90 days; there were increased restrictions on
Union access to the facility; the agreed-upon process which would enable the Union to organize
new departments without an election had been eliminated; the provision providing for daily
overtime had been deleted and the allowable number of no-frills slots had been increased from
10 to 20. The threshold of hours required to qualify an employee for paid time off and health
insurance had been increased. As will be discussed below, the Union was subsequently
advised that the compilation document also contained contract proposals put forth by
Respondent.11
6. The Second Bargaining Session –September 19, 2007
A bargaining session scheduled for August was cancelled by Jasinski. The parties next
met on September 19. According to McCalla’s notes, the mediator attended this session, as
well.
The Union complained that it had been two months since the last session, and the
Employer stated that the delay was due to the fact that the parties did not have a
comprehensive agreement.

11 The compilation agreement also provided for the following hourly minimum salary rages
effective July 26, 2007: LPNs -$16.50, CNAs - $8.00, Recreation - $7.60 and Grade 1 - $7.00.
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The parties referred to the compilation document which, by that time, had been the
subject of discussion at negotiations for the other Omni facilities. Jasinski had prepared a
version which highlighted most, but not all, of the Employer’s proposals and distributed it at the
meeting.12 According to McCalla, the Union said that some of the departures could be more
clearly understood to be so by reference to the KL Labor Group Agreement, (the KL Agreement)
which was the Union’s understanding of the most recent complete agreement between the
parties.
The KL Agreement was a multi-employer 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 the Omni negotiations,
the parties disagreed as to whether this formed the underlying collective-bargaining agreement
applicable to the Omni facilities. The Union took the position that it was.
When the Union raised the issue of the applibility of the KL Agreement at this negotiation
session, Jasinski asserted that he did not know what the KL Agreement was, maintained that it
was not a relevant document and stated that he was not using it to understand the parties’
bargaining history. The Union asked that the Employer check its files to research the
applicability of the document.13
The Union also asked the Employer to provide the remainder of the information it had
sought in its April 25 letter. The Union also asked for production of the documents used to
prepare the compilation document. The Union brought up the fact that the employee list which
had been given to them showed more than 10 employees who were working regular hours and
not receiving benefits, but were receiving the same pay as those with benefits, raising the
related issue of whether the facility made use of no-frills employees. According to Saint Hilare,
Jasinski did not want to discuss the issue, but Gold stated that he would look into it.
According to Jasinski, the Union brought up the issues of no-frills employees and agency
usage at virtually every negotiation. Jasinski repeatedly told the Union that the facility did not
have any no-frills employees and that it did not make use of agency personnel. Jasinski
asserted that although the Union made general claims that his representations were not
accurate, they never provided specific information which would enable the Employer to respond
to their assertions.
Jasinski further testified that much of the time at this session was devoted to complaints
by employee members of the bargaining committee that employees were not receiving benefits
they were contractually entitled to, rather than substantive negotiations. He suggested that
these matters would be more appropriately addressed in a separate meeting with management.
7. The Third Bargaining Session – October 10, 2007

12 Jasinski had failed to highlight the Employer’s proposal to eliminate daily overtime and
change the formula by which benefit fund contributions would be calculated. It appears from the
record that the Union took note of the change in the overtime provisions, but did not realize that
the proposed formula for pension and other benefit fund contributions was different at this time.
13 The document in question does not specifically refer to this facility and, by its terms, does
not reference a list of covered nursing homes. Respondent further argues that the Union was
unable to identify the constitutent members of the KL Labor Group.
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By the time the parties met, the Union had prepared a comprehensive counter-proposal
on the non-economic terms of the contract. As McCalla and Saint Hilare testified, the Union
modified the language on some proposals, and deleted portions of others to more closely
approach the position taken by the Employer in the parties’ prior meetings, including the
September 19 Harbor View discussion as well as a prior negotiation session held for Castle Hill
in August. Saint Hilare walked through the proposal and pointed out the changes to the
Employer. Among the subjects discussed were Union activity and communication, the number
of Union delegates and days off, the discipline and discharge provision, the establishment of a
health and safety committee and related provisions and probationary pay. According to both
Saint Hilare and McCalla, Jasinski had little response to the Union’s new proposals. As Jasinski
testified, the Union’s revised proposal was conditioned on the withdrawal of certain Employer
proposals and he informed the Union that he would not agree to do that.
After a caucus, Respondent provided the Union with an economic proposal.14 The
Employer proposed raising life insurance coverage for employees from $10,000 to $15,000,
annual wage increases ranging from 2 percent to 2.75 percent amounting to 13.75 percent over
the five-year term of the contract, the establishment of 20 no-frills positions with the wage
differential increased to $1.50 per hour and no change to its proposal on health insurance. The
minimum wage rates effective July 26, 2007 were to be were raised to $18 for LPNs, $8.50 for
CNAs, $8.25 for recreation employees and $7.75 for dietary and housekeeping employees, with
two general wage increases of 2 percent to be added to the minimums during the term of the
agreement.
8. The Union’s October 19, 2007 Request for Information
On October 19, 2007, Saint Hilare wrote to Jasinski requesting information which had
previously been requested, 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 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.

14 At the outset of bargaining Jasinski had informed the Union that he preferred to negotiate
non-economic terms prior to getting into specifics regarding economic matters. The Union,
however, had previously asked Respondent to put forward an economic proposal.
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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.
General Counsel adduced testimony from both McCalla and Saint Hilare about why such
information had been requested.15 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 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 employee rosters which had been
provided by the Employer on June 1 and July 27 raised questions regarding the Employer’s use
of the no-frills classification since the list indicated that more than 10 employees (the allotted
number of no-frills slots) who were eligible for health insurance did not receive such insurance
or extra compensation for foregoing such benefits. This also called into question the accuracy of
the employee rosters.
The second and third paragraphs requested information regarding the use of agencies to
provide employees to perform bargaining unit work. Saint Hilare testified that the Union
suspected that agency LPNs were being used based upon reports from employees.16 McCalla

15 I do not rely upon this testimony to establish what the Union representatives may or may
not have told Respondent about why the information was being sought. Rather, I rely upon
specific testimony about each bargaining session, the correspondence between the parties and,
where applicable, bargaining notes.
16 Jasinski acknowledged that Saint Hilare raised the issue with him at the bargaining table.
Continued
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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 employeesand that
the use of agency employees erodes the bargaining unit.
The work schedules were requested primarily to investigate the adequacy of staffing at
the facility as well as to see how many temporary workers were utilized in each unit. OSHA logs
were sought to track whether there were health and safety issues to be addressed as well as to
enable the Union to defend its proposals over those issues.
According to McCalla, the Medicaid cost reports were something “typically” requested.
He stated that they were very valuable tools that the Union always obtains from employers
heading into bargaining, and they are then turned over to Union researchers to examine. Such
reports contain information regarding the ownership and management structure of the home,
the census, staffing and the profitability of the facility. Although they are filed with, and may be
obtained from the State, the most recent reports are often unavailable and are therefore sought
from the facility itself.
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 to employees for dependent coverage and the aggregate cost of employee coverage, it
had not provided the Union with specific information about the costs of single employee
coverage for individual employees. 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
again requested copies of those documents which the Employer had used when preparing the
compilation agreement.
9. Saint Hilare’s November 9, 2007 Letter Regarding the Union’s
Information Request
On November 9, Saint Hilare sent the following letter to Jasinski:
The Union has made several unsucessful 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 have finally begun economic bargaining.
I sent another request for this previously requested information to you on October 17,
2007. We have not received a respons. Please reference Our October 17, 2007 letter
and supply the requested items. It is [in] the interests of both parties to conclude
bargaining at the above referenced facilities as soon as possible. We would appreciate
receiving the information before our next bargaining session for the above referenced
facilties or by Wednesday, November 14, 2007 if we have not scheduled bargaining
dates before then.17
_________________________
Jasinski asserted that the looked into it but could not confirm that agency was being used at
Harbor View. He offered no specific testimony as to what efforts he made to investigate this
issue.
17 It appears that the references to Saint Hilare’s October 17 letter are in error, and that he
was, in fact, referring to his October 19 letter and information request.
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10. 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.
11. 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. The 2002 MOA and the KL Agreement were
enclosed as well.18
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.

18 The version of the KL Agreement enclosed by Respondent contains a handwritten
notation at the top which reads: “Master Agreement” and lists the following facilities: Bristol,
Harbor View, Castle Hill and Whitehall 3. There is no evidence, however, as to who may have
made such notations or when they were made.
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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.
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
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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.
12. The Fourth Bargaining Session – February 12, 2008
At this session, the Union offered an economic counter-proposal. Its terms included a
$400 signing bonus in lieu of retroactive pay, a 15 percent wage increase over the three-year
term of the agreement, a reduction in the amount of the Employer’s pension contribution from 3
percent to 2.5 percent. The proposal additionally provided that, by July 2010, the minimum
salaries for CNAs and Grade 1 employees would reach $11 and $10 per hour, respectively.19
Proposals were also made with regard to sick leave, holidays and pension percentage. The
Union additionally suggested that the KL Agreement be used as the template for non-economic
terms. Jasinski responded that the Union’s proposed wage increases coupled with the
increases in the minimum salaries would amount to a 25 percent wage increase in some cases,
and rejected the proposal. The Employer then caucused.
Upon returning from the caucus, Jasinski announced that the Employer had put a
forward a non-economic proposal in 2007 which remained on the table and that, unless the
Union was prepared to give a counter-proposal, its non-economic proposals were final. The
Union reminded Jasinski that it had put forward a non-economic counter-proposal at the
October 10, 2007 session which had not been responded to. The Employer then presented an
economic counter-offer which it characterized as close to its final offer. This proposal included a
signing bonus of $100 and a total wage increase over the five-year contract term of 15.5

19 Saint Hilare acknowledged that he told the Employer that the Union was seeking to
achieve these minimum salaries in the contract, but also testified, without rebuttal, that at the
time the “statewide” standard was higher than that.
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percent. At the end of the contract, the minimum hourly salaries would be $20.50 for LPNs,
$9.50 for CNAs, $9.00 for recreation employees and $8.75 for Grade 1 employees. The
Employer further stated that it was at its final offer with regard to health insurance, proposed a
two-tier system for paid sick leave and made other proposals regarding holiday and vacation
pay.
The Union objected to the Employer’s assertion of being close to its final position,
pointing out that information was still outstanding on a variety of issues including health
insurance, no-frills employees and the production of OSHA logs. Saint Hilare argued that the
CNAs were reporting having to work double shifts and reiterated that the Union wanted overtime
information for a fruitful discussion on the issue which, if it could be addressed, might produce
additional money to put toward the agreement.
At some point there was a discussion of whether the facility was using agency LPNs.
Saint Hilare stated that employees had told him that nurses were reporting for work but not
returning and that this might be a sign that they were agency employees. Gold maintained that
there was no agency usage at the facility, but when asked specifically about the LPNs, he
replied that he would look into the issue.20
With regard to this negotiation generally, Respondent adduced the following testimony
from Saint Hilare:
Q: [by Respondent’s counsel] Now the Union –the Employer’s proposal that was
submitted on February 12, 2008, that was an improvement of what it previously
proposed, isn’t that true?
A: Yes
Q: So as of February the 12th the Employer was going up, with regards to its economic
proposal, isn’t that right?
A: Yes
Q: And as of February the 12th, the Union was coming down with regards to what it was
proposing, correct?
A: Yes, yes.
Q: So the parties were engaging in meaningful negotiations at that time, correct?
A: Yes.
13. Saint Hilare’s February 14, 2008 Response to Respondent’s January 29 letter
On February 14, 2008, 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

20 There had been some initial confusion as to whether the Union represented LPNs at the
facility, but it appears to have been resolved well prior to this point in the bargaining.
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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 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
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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.
14. 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
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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.
15. The Fifth Bargaining Session – February 25, 2008
As Saint Hilare testified, the Union raised the issue of health insurance at this meeting.
He said that a serious discussion was needed, but that first the Union needed to understand the
costs to the Employer and that the no-frills information was needed to enable the Union to
assess exactly how many employees required coverage. He also stated that information was
necessary for overtime because the Union needed it to assess the potential impact on the unit
of the Employer’s proposal to eliminate daily overtime.
The Union also responded to the Employer’s economic proposal. It moved from three-
year to four-year agreement and reduced the signing bonus to $350. The proposed agreement
would result in hourly minimum salaries of $23 for LPNs, $10 for dietary employees, $11 for
CNAs and $10.20 for recreation employees effective as of March 2011. In addition, the Union
made a revised health insurance proposal whereby the Employer would not be required to make
full payment for dependent coverage until an employee had completed 10 years of service. For
the first five years of employment, the employee would assume the cost of dependent coverage.
After this point, the Employer would assume 50 percent of the cost and the share of the
Employer’s burden would increase by 10 percent each year until the employee had completed
ten years of service.
With regard to this meeting, Jasinski testified that the Union’s only response to the
Employer’s non-economic proposals was its continued insistence that the KL Agreement govern
such terms. The Union remained adamant on its insistence that the overtime provisions of the
2002 MOA remain as is, and it never had any response to the Employer’s management rights
proposal.
After hearing the Union’s economic proposal, the Employer presented a modified
economic proposal which provided for an increase in wages. The allowable number of no-frills
employees remained at 20 who would be paid an additional $1.50 per hour. The Employer had
previously proposed a two-tier benefits package whereby benefits for new hires would be
reduced and there was discussion of this issue. There was discussion of the percentage of
pension contributions, but no discussion of the formula by which such contributions were to be
computed.
At the conclusion of this meeting, Jasinski told that Union that the Employer was very
close to its final offer.
16. Respondent’s February 27, 2008 Letter to the Union, and the Employer’s
Memorandum to its Employees
Prior to February 27, 2008, the Union sent the Employer a notice that it was going to
conduct informational picketing at Harbor View on Friday, March 7, 2008, commencing at 2:00
pm and concluding at 4:30 pm. In response, Jasinski wrote to Saint Hilare on February 27,
providing that “[u]nder no circumstances will the Administration and the Facility tolerate any
activity that in any way impedes, blocks, disrupts or hampers the patient-care services that the
facility provides to the residents” and further stated that employees who walk off the job during
their regular work hours would be disciplined.
On that date, Harbor View administration issued a memorandum to its employees
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addressing the issue of the informational picket, entitled “Status of Contract Negotiations.” The
memo advises employees that it is “taking this action seriously and preparing itself in the event
our employees opt to take further serious action that includes abandoning their jobs and walking
off the job. The Administration has been forced to take necessary steps, including retention of
temporary workers, security and other actions, all designed to ensure continued quality care and
uninterrupted services to our residents in the event the employees opt to support the Union’s
efforts.” The memorandum goes on to discuss management’s position concerning the ongoing
contract negotiations.
There is no evidence that whatever picketing may have taken place at the appointed day
and time resulted in any employee abandonment of their duties or other disruption to Harbor
View operations. Similarly, there is no specific evidence that any agency was retained to, or did,
provide temporary workers during the two and one-half hours of picketing on that day.
17. The Sixth Bargaining Session – March 5, 2008
At the outset of this meeting, Jasinski accused the Union of drawing out the process,
stating that it had objectives in mind other than the goodwill of its members. Jasinski stated that
the Employer was going to discuss its final proposal, and proceeded to do so. It appears from
McCalla’s bargaining notes that there was a comprehensive discussion of the economic and
non-economic proposals of the Employer’s final offer, and that this dominated the majority of the
session. The Union representatives took a considerable amount of time asking questions about
the Employer’s final offer.
The Union representatives also stated that they did not believe the process was over
and that they still had moves to make. They protested that, at the Harbor View table, there had
not to date been a discussion of the Union’s October non-economic counter proposal. They
suggested that such a dialogue occur, and the parties then did have discussion of certain
aspects of the proposal; in particular the probationary period, union activity and communications
and paid time off for union representatives. The Union was told that the Employer would not
enter into a discussion of proposals regarding staffing, meals and the increase in the number of
available mechanical devices to assist employees in lifting patients. In this regard, McCalla
again raised the issue of the OSHA logs. Saint Hilare raised certain “shop issues” inquiring for
example, if it was really necessary for the Union to obtain written permission prior to
investigating emergencies.
At this point, according to McCalla, Gold stated that he would have to leave the meeting
and it drew to a conclusion. Saint Hilare stated that the Union would analyze the Employer’s
final offer and prepare a counter-proposal.
18. A Subsequent Meeting Is Cancelled by the Union
The parties had scheduled another meeting for March 18, 2008. On March 17, Saint
Hilare sent a letter to facility administrator Woodard to confirm the release of the bargaining
committee. During a visit to the facility later that day, Woodard informed Saint Hilare that, due
to the late receipt of his request, and the scheduling difficulties it presented, he could not
release the bargaining committee. Saint Hilare contacted Jasinski and told him that the Union
would not bargain if most of the committee was not released. Jasinski stated that he would
contact Woodard and apprise Saint Hilare of the situation by the end of the day. Jasinski did not
contact Saint Hilare on that day, and due to the fact that Saint Hilare had been informed that the
bargaining committee would not be released to attend negotiations, he called the mediator and
cancelled the session. By letter dated March 31, 2008, Jasinski wrote to Saint Hilare confirming
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that negotiations had been cancelled at his request.
19. Respondent Implements its Final Offer
On March 27, 2008, Jasinski wrote to Saint Hilare as follows:
Since the Union cancelled the last bargaining session and has not scheduled another
session for Harborview, the Union has left us with no choice and we have decided to
implement our last and best final offer effective April 1, 2008.
This final offer was the culmination of many contract negotiation sessions. At the last face-
to-face bargaining session we presented to you our final offer which represented more than
we were prepared to provide, and we confirmed at the table there was nothing more for us
to give. Attached please find a copy of a letter sent to the employees with the final offer
provided to the union at the last bargaining session.
If you wish to discuss any particular matter, we have no objection to meeting with you.
Attached was Respondent’s final offer, as follows:
Final Offer
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.
EMPLOYEES EMPLOYED PRIOR TO RATIFICATION SHALL RECEIVE THE
FOLLOWING BENEFITS:
HOLIDAYS: -Eight (8) designated holidays
An additional holiday: Good Friday after ten (10) years of service
- Employee's birthday
-One (1) personal day
-One (1) additional personal day after five (5) years of continuous
service
SICK DAYS: Nine (9) sick days
VACATION: CNAs, Dietary and Housekeeping and Recreational Aides
Five (5) paid days - Upon completion of one (1) year of continuous
employment.
Ten (10) paid days – Upon completion of two (2) years of
continuous employment.
Fifteen (15) paid days – Upon completion of five (5) years of
continuous employment.
Seventeen (17) paid days – Upon completion of fifteen (15) years
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of continuous employment.
Seventeen paid days – Upon completion of twenty (20) years of
continuous employment.
LPNs – Same vacation schedule as employees currently enjoy.
HEALTH INSURANCE:
As provided by the Employer. See attached
PENSION: Two percent (2%) of all eligible full-time covered employees'
wages for hours physically worked, as defined in the Employer's
Pension Article. See attached.
SIGNING BONUS: $150.00 - Full time employees
$75.00 - Part time employees
NO FRILLS: Increase No-frills rate to $2.00 per hour above the minimum in the
job classification.
Increase to 20 no-frills positions.
WAGES: Upon ratification or implementation by the Employer: three percent general
(3%)
12 months after ratification: two percent general (2 %)
18 months after ratification: two percent general (2%)
24 months after ratification: three percent general (3%)
36 months after ratification: two percent general (2%).
42 months after ratification: two percent general (2%)
48 months after ratification: three percent general (3%)
Increases shall not be added to minimums.
New Minimum hiring rates as follows:
CNAs Grade 1 Recreational
Aides
LPNs
Upon Ratification 8.50 8.00 8.00 19.00
24 Months After Ratification 9.00 8.50 8.50 20.00
48 Months After Ratification 9.75 9.00 9.00 21.00
Employees shall receive the increase to the new minimum or the general increase
whichever is greater.
20. The Union’s March 28, 2008 Response to the Final Offer
By letter dated March 28, 2008, Saint Hilare advised Jasinski that it had been the refusal
to release the bargaining committee members that had prompted him to cancel the session. He
further stated:
On March 18, the mediator offered April 8 or 9 at 10am to continue bargaining. Please
let me know as soon as possible if either of those dates is acceptable.
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Regarding your “final offer,“ let me be clear that the parties are no where near impasse.
We had prepared a counter proposal to present on March 18 that addressed both non-
economic language items and economics. Further we continue to await the receipt of
information, especially health insurance information, so that we can have a more
meaningful discussion of the issue. To date, we don’t even know the health insurance
premium monthly cost. I addition, the parties are still in discussion over what contract
language is currently in effect, given the lack of clarity regarding all the MOAs and the
earlier contract. Indeed, it is not clear from your “final offer” what underlying contract
language you are using.
We also have a number of questions about your offer. For example, what workweek
proposal do you refer to? What do you mean by “same as other employees” for new
hires? Which employees? And what benefits do those employees have? The health
insurance, pension and training attachments were not provided with your final offer.
The Union requests that you return to the bargaining table and comply with your duty to
bargain in good faith. I am hopeful that the parties can reach an agreement that is fair to
all. If you are not available to bargain on April 8 or 9, please offer alternative dates.
21. On April 1, 2008, Respondent Provides Additional Information to the Union
On April 1, 2008, Jasinski wrote to Saint Hilare 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
4. OSHA: See attached 21
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.

21 Enclosed was the OSHA log for 2007.
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22. The Union’s Response to Respondent’s April 1, 2008 Letter and Submission
On April 10, 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. I note that you did not provide
information for Palisades other than 2007 OSHA log.
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.22
Requests 2 and 3: You continue to deny that the facilities use agency workers.
Request 4: No schedules were provided.
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. Respondent’s April 22, 2008 Response to the Union’s April 10 Letter
On April 22, 2008, Jasinski replied to Saint Hilare’s April 9 letter as follows:
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

22 This is an apparent reference to confusion caused by another letter indicating that one of
the Omni facilities, either Harbor View or Palisade, had four no-frills employees.
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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.
24. Subsequent Communications from the Employer
On May 8, 2008, Jasinski wrote to Saint Hilare demanding that, inasmuch as the Union
had requested the involvement of the FMCS in the negotiations, “any and all communications
regarding this negotiation be conveyed through Mr. James Kinney” including proposing dates for
negotiations.
On May 19, 2008, Respondent sent an updated employee list of Harbor View employees
to the Union. Although no no-frills employees were noted, there were approximately 31
employees listed who did not appear to have health insurance.
On May 28, 2005, Jasinski wrote to Saint Hilare enclosing the 2005 and 2006 OSHA
logs and the 2005 and 2006 Medicaid cost reports. Also provided were “total overtime hours by
quarter for 2006 and 2007” as well as employee schedules for the (1) dietary department for the
period from December 30, 2007 to May 3, 2008; (2) housekeeping department for the period
from December 23, 2007 to April 26, 2008 and (3) for the nursing department for the period
December 23, 2007 to April 12, 2008. With respect to the issue of agency usage, Jasinski
wrote: “there were no agency personnel used by this facility in the requested time period.”
In this letter, Jasinski further asserted: “We continued to await dates for continued
negotiations at this facility.”
25. The Union’s June 10, 2008 Response to the Employer’s May 28 Letter
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.
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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 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.
26. Respondent’s June 17, 2008 Response to the Union’s June 10 Letter
On June 17, 2008, Jasinski wrote to Saint Hilare in response to the assertions made in
his June 10 correspondence:
We are puzzled by your June 10th response to the information we provided with our May
28th letter. 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
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incomplete."
Now,more than ever, it is readily 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 real
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 - 38 hrs
2nd Quarter 2006 - 41 hrs
3rd Quarter 2006 - 59 hrs
4th Quarter 2006 - 60 hrs
1st Quarter 2007 - 44 hrs
2nd Quarter 2007 - 60 hrs
3rd Quarter 2007 - 59 hrs
4th Quarter 2007 - 70 hrs
Moreover, contrary to your assertion, our proposal was not 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 have failed to provide any
specifics that any employee would be hurt by our proposal.
2. We previously provided you with a copy of the 2005 OSHA report. An additional
copy is enclosed for your convenience.
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. Troy
Hills Nursing Home, 326 NLRB 1465, n.2 (1998). We are uncertain what “Schedule H” is
or what possible relevance a provider’s certification has to the negotiations. 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. Harborview does not have any employees in the no-frills category.
We recognize that you are currently away on vacation and will be unable to schedule
any contract negotiations for the rest of the month. We suggest that you propose dates
in July and August that will not conflict with your schedule.
Thank you.
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27. Respondent’s June 23, 2008 Letter
On June 23, 2008, Jasinski sent Saint Hilare the following letter:
Mr. James Kenney23 contacted me concering negotiations to obtain the status of
negotiations and offered his services to schedule a meeting. I joined in the request and
expressed our willingness to meet if he thought it would be beneficial.
Unfortunately, you have not contacted us for a number of weeks. We have no desire in
prolonging this negotiation longer than necessary. It is now almost one (1) year since the
contract expires and after numerous bargaining sessions, we submitted our last, best
and final offer nearly three (3) months ago. If you are interested in meeting, I suggest
you contact Mr. Kenney who will propose dates for the meeting. Thank you.
28. The Union’s July 7, 2008 Response to Respondent’s June 17 and
June 23, 2008 Letters
I just returned from vacation this week and reviewed your June 17 and June 23 letters,
which arrived while I was away.
The comment in your June 23 letter that you are puzzled that the Union has not
contacted you or Mediatory Kenney regarding bargaining in the past several weeks is a
puzzling comment to me as you knew I was away from the office and on vacation for
most of the month. Further, I have no clue what you mean in your June 23 Bristol Manor
letter that the Union brought up subjects that had nothing to do with contract
negotiations.
In any event, I have reached out to Mr. Kenney and we are both available to meet on
several dates in July and August. Given that we have not met at Harborview and Bristol
Manor, I suggest we take the earliest date for those facilities. I there fore propose July
15 for Bristol Manor, July 16 for Harborview and July 17 for Castle Hill and in addition,
we are also available for July 21 and July 22, 2008.
Regarding the Union’s outstanding information requests:
1. We have repeatedly explained to you that we need overtime information for each
individual employee. This is especially necessary given your very harsh proposal to
eliminate daily overtime. Once we review which employees work overtime, we can
investigate with the employee how much of that is daily overtime. Of course, if you have
daily overtime records for each employee, that would make our task a lot easier. Please
not that in my June 10, 2008 letter I also asked you to provide updated overtime
information through May 31, 2008.
2. Regarding the Schedule “H” of the Medicaid Cost Report, we simply wanted the
complete document, containing the provider’s signature and date. Have the 2007 Cost
Reports been filed yet? If so, please provide copies as previously requested.

23 From time to time the mediator is referred to the parties as “Kinney” and at other as
“Kenney.”
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3. Schedules: I precisely described in my June 10, 2008 letter the daily schedules in
nursing which show on a single page all CNAs working on all shifts and floors. In
addition, I remind you of the missing schedules at Harbor View. You provided LPN
schedules only for March and April 2008. In your June 17 letters, you state that you
provided all the schedules in your possession. Certainly, your clients possess May 2008
schedules that were not provided for nursing at any facility other than Palisades. And
had you complied with our July 2007 information request prior to May 28, 2008, more
schedules would have been produced.
4. Thank you for clarifying the no-frills information for Palisades. As previously
requested, please give us the names of those four no-frills employees.
Please provide the outstanding information and let me know which dates you are
available for bargaining.
29. The Union’s July 23, 2008 Updated Request for Information
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. Please also let me know which dates you are available to
bargain for Castle Hill, Harborview and Bristol Manor.
There is no evidence that the Employer responded to this letter or otherwise provided
the Union with additional information prior to August 2009.
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30. Stipulations and other Evidence as to Changes in Employees’
Terms and Conditions of Employment
The parties entered into certain stipulations regarding changes to employees’ terms and
conditions of employment as a result of Respondent’s implementation of its final offer on or
about April 1, 2008. In particular, the parties stipulated that prior to the implementation of the
final offer employees were paid overtime pay for hours worked in excess of 7.5 hours per day.
After the implementation of the final offer, the Employer ceased paying daily overtime to its
employees. In addition, there was a partial implementation of a $3 uniform allowance on or
about April 1. With regard to health insurance, prior to the implementation of the April 2008 final
offer, employees who were regularly scheduled to work and worked 20 or more hours per week
qualified for health insurance. After the implementation of the final offer, employees working
more than 20 but less than 30 hours per week are no longer eligible to receive health insurance.
In addition, Jasinski testified that, other than the formula used to compute the amount of
contributions to the pension fund, Respondent has implemented the terms of its final offer at
Harbor View.
31. Bargaining Resumes in August 2009
As noted above, employees at Harbor View and the other Omni facilities engaged in a
three-day strike in August 2009.24 A meeting between Employer and Union representatives was
scheduled for September 8. On August 21, 2009, Jasinski sent a letter to McCalla including
updated information regarding the costs for health insurance coverage including single,
employee plus one and family coverage.
On August 24, 2009, the following letter and enclosed information was sent to Union
counsel Ellen Dichner:
This letter supplements the latest information request made by the Union. The facility
has not utilized any agency personnel. With regard to overtime, each facility has
provided overtime distribution information, reported by quarter and overtime usage per
employees. Distribution of overtime corresponds to the needs of the facility and the
request by employees for overtime work. The long-standing policy regarding overtime
and the distribution of same complies with the terms and conditions as set forth under
the expired collective bargaining agreement.
With this additional information, we believe that we are fully responsive to the Union’s
requested information, and look forward to the Union’s complete proposal at the next
scheduled bargaining session.
Enclosed with this letter was information relating to overtime (which was broken down
per employee, per quarter for 2008 and the first two quarters of 2009), no-frills employees,
updated gross payroll figures and work schedules. The information sent showed that
approximately 28 employees who appeared to qualify for health insurance were not receiving it.
Twelve employees were designated as no-frills employees.
32. The September 8, 2009 Meeting

24 Jasinski was asked on cross-examination if he had ever heard of an agency called Tri-
State Health Services. He testified that, with regards to Harbor View, he first heard a reference
to this agency in connection with the August 2009 job action.
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The negotiators at this meeting differed somewhat from the parties’ prior meetings. Saint
Hilare had been reassigned and was not present. The Union was represented primarily by its
attorney Ellen Dichner and McCalla. Jasinski and Gold were assisted by another attorney,
James McGovern. The mediator attended, as well.
Dichner made a presentation regarding the issues that separated the parties in terms of
language, and McCalla made a similar presentation with respect to economic matters. The
Union provided the Employer with a written contract proposal. There was a discussion of the
proposal and then the Employer asked to caucus.
After the caucus, according to McCalla, Gold made a presentation. He advised the
Union that the Employer would consider some form of dependent coverage for its employees.
As McCalla testified, Gold stated that the Union’s formula was too expensive, but that the
concept of rewarding senior workers with some offset toward such a benefit was something the
Employer would entertain. Gold stated that he would have his actuaries look into the matter.The
Employer further indicated some flexibility with regard to wages and pension computation
language. The Union inquired as to whether the Employer was willing to continue bargaining
and the Employer stated that there was work to do away from the table but that the parties
would contact each other and arrange further dates.
B. The Alleged Failure to Remit Pension Contributions
1. The Amendment to the Complaint
The charge in Case No. 22-CA-28151, as originally filed on December 3, 2007, alleges,
in relevant part, that: “Since in or about July, 2007, the above named Employer through its
officers, agents and representative David Jasinski has failed and refused to furnish information
to the Union necessary to collective bargaining negotiations.”25
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, on September 3, 2009, Counsel for the General Counsel issued a
notice of intention 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, and so moved at the opening of the hearing.
Respondent objected to the proposed amendment, arguing that it was barred by the
Section 10(b) statute of limitations and that it was predicated on a different theory from the
original charge. Respondent additionally denies the material allegations of the amendment.
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 further argues that any claim of such

25 There is another allegation, contained in the charge as filed in December 2007, that the
Employer falsely presented to the Union a document purporting to represent existing terms and
conditions of employment, which is not a subject of the instant complaint.
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an alleged violation would be covered by the grievance procedure under the applicable
collective-bargaining agreement, and notes that no such grievance or lawsuit was ever filed by
the Union.
At the hearing, I reserved ruling on the motion to amend the complaint to include this
additional allegation. As has been noted above, it is hereby granted. See generally, Service
Employees Local 87 (Cresleigh Management), 324 NLRB 774 (1997); Board Rules and
Regulations Section 102.35(a)(8)(administrative law judge in an unfair labor practice case has
authority, on the motion of any party, to order proceedings consolidated or severed).
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.26
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. Harbor View made, and
apparently has continued to remit, contributions for the dietary employees of the facility. It is
undisputed that contributions for the certified nurses aides were drawn on the checks of an
entity called Healthcare Staffing & Consultants, LLC (Healthcare). Similarly, contributions on
behalf of the recreation employees were drawn on the checks of Sunshine Recreation, LLC
(Sunshine). 27
Some four 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 Omni
employees:
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.

26 With the exception of one document which Respondent sought to introduce into the
record, which is discussed below, the testimonial and documentary evidence relating to this
allegation of the compliant was adduced in a proceeding involving Castle Hill Health Care
Center, Case Nos. 22-CA-28152 and 22-CA-28548. The parties stipulated the testimony and
documentary evidence into the record herein.
27 The record is silent with regard to contributions made on behalf of the LPNs.
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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 to ascertain that it conforms to Fund requirements and is then
submitted to 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.
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 the 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

28 She currently serves as the Fund’s benefits processing manager.
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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 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 the Fund copies of the
applicable MOAs and urged the Fund to search their files for the relevant documents.
Blount testified that at that point she undertook an investigation and learned that
Healthcare and Sunshine had been contributing for CNAs and recreation employees,
respectively, for the Omni facilities. 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 various Omni facilities by name. 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.
At some point after the February 2009 conference call, the Fund advised the Union that
the Employer had ceased remitting contributions for periods after January 2007. The Union was
further told that the Fund had reversed its decision to refund contributions to Healthcare and

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.
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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 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 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.30

30 At the hearing Respondent sought to introduce into evidence a document which purports
to be a summary of checks issued by Harbor View, Healthcare and Sunshine, sent to the Fund
during the period from January 2008 through June 2009, showing which checks were deposited
and which were not. No testimony was adduced with respect to this document. Moreover,
Respondent has failed to present sufficient evidence to allow me to draw any specific finding
regarding whether these remittances covered all unit employees or whether they fully satisfied
Respondent’s obligations to the Fund for the applicable period of time. I further note that
Respondent makes no reference to this summary or its purported evidentiary value in its post-
hearing brief. Accordingly, I give it no weight as regards the issue of whether Respondent has
committed an unfair labor practice. Even if I were to find that the summary represents efforts by
Healthcare and Sunshine, on behalf of Respondent, to resume contributions to the Fund for unit
employees for the period from January 2008 through June 2009, such a finding would not be
determinative of whether the Respondent had committed an unfair labor practice, as alleged in
the complaint, but would be a matter of mitigation appropriately addressed in a compliance
Continued
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III. Analysis and Conclusions
A. The Alleged Failure to Provide Information
The complaint alleges and General Counsel contends that the following information
sought by the Union is presumptively relevant or, alternatively, that its relevance has been
demonstrated: documents showing overtime hours worked by bargaining unit employees on a
quarterly basis in 2006 and 2007, 31 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 Medicaid 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 delayed 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.
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 encompasses the duty to provide information needed by the
bargaining 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 employees 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 Contractors), 319 NLRB 87, 90 (1995). In such an instance, the employer 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 pertaining to employees within the bargaining unit and has no further
obligation to explain its significance, unless and until the employer establishes legitimate
affirmative defenses to the production of the information. Beverly Health and Rehabilitation
Services, 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 relevant 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.
_________________________
proceeding.
31 The complaint additionally alleges a failure or delay in providing documents showing
“regular hours of work.” The General Counsel does not make specific reference to any such
allegation other than the alleged failure to provide employee work schedules, which is discussed
below.
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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 relevance of requested information. Thus, the burden is not an
exceptionally heavy one, requiring only that the desired information 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)(potential or probable relevance is sufficient to give rise to an employer’s
obligation to provide information). A party has satisfied 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 non-unit information for which relevance must be demonstrated,
the General Counsel must present evidence either that the union demonstrated the relevance of
the non-unit information or that the relevance of the information should have been apparent to
the respondent under the circumstances. Disneyland Park, 350 NLRB 1256, 1258 (2007). The
Union’s explanation of relevance “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 omitted).
The duty to furnish information requires a reasonable good-faith effort to respond to the
request as promptly as circumstances allow. Woodland Clinic, 335 NLRB 735, 736 (2006);
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).
2. Respondent’s Contentions as to the Alleged Failure to Provide Information
With regard to the Union’s information requests generally, Respondent argues that the
Union propounded such requests on Harbor View for reasons other than to move the bargaining
process forward. In particular, Respondent argues that the Union’s information requests were
made to avoid meaningful bargaining and in a futile attempt to avoid reaching impasse. In
support of this argument, Respondent contends that the Union repeatedly demanded
information which had already been received, which was readily attainable or wholly
unnecessary to the bargaining process or that it was not entitled to obtain. Respondent
additionally contends that it responded to the Union’s initial information request prior to the first
bargaining session and asserts that the Union never objected that this initial production was
incomplete. 32
Respondent further argues that that the Union was able to, and did, make its initial
“comprehensive” proposal relying on the information already within its possession, and did not
require any further information prior to putting forth subsequent proposals. In this regard,
Respondent relies upon testimony, adduced from Union witnesses, that the Union formulated its
proposals based upon factors such as input from employees, knowledge of general employment

32 Here, Respondent misconstrues the record. As has been noted above, on June 4 (prior to
the first negotiation session) Saint Hilare wrote to Respondent objecting that its response to the
April 25 information request was incomplete and noting that no information whatsoever had
been sent with regard to Harbor View. The Union then raised the issue of Respondent’s non
compliance at the first meeting of the parties, on June 19 2007 and, as Respondent
acknowledges and the record reflects, continually thereafter.
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standards in the industry and a negotiating strategy based upon their assessment of what could
be obtained through negotiations with this particular employer. Respondent argues that such
testimony constitutes an admission that the Union did not require the information to negotiate.
Respondent thus argues that it sufficiently complied with the Union’s repeated
information requests, that it provided information to the Union on numerous occasions and,
further, that any limited delay in providing information is not unlawful. In addition, as Respondent
contends, the Union’s repeated information requests constitute evidence of its bad faith in
negotiations.
In support of its contention that any alleged delay in providing the Union with information
was not unlawful, Respondent relies upon Good Life Beverage Co., 312 NLRB 1060 (1993)
and Union Carbide Corp., 275 NLRB 197 (1985). In Good Life Beverage Co., supra, the Board
found that a five and one-half 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 requesting 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 request or that it involved a matter currently or forthcoming in any negotiations
between the parties.
In the instant case, while it appears that the Union requested a significant amount of
information from the Employer initially, and subsequently, Respondent has failed to argue or to
present any 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.33 Moreover, the record fails to establish that Respondent raised any such
objection 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.
Moreover, contrary to Respondent’s suggestion, the Board has consistently found an
unexplained delay in furnishing relevant information to be unlawful. See e.g. Woodland Clinic,
supra at 736 (delay of seven weeks unreasonable, absent explanation); Bundy Corp., 292
NLRB 671, 672 (1989) (delay of over two months unreasonable, and explanation offered for
delay inadequate); Quality Engineered Products, 267 NLRB 593, 598 (1983) (employer replied
within two weeks, providing some information, but did not supply rest of information required
until six weeks later and no explanation provided for “foot dragging”); International Credit
Service, 240 NLRB 715, 718 (1979) (unexplained delay of six weeks unreasonable); Local 12
Engineers, 237 NLRB 1556, 1558-1559(1978) (information supplied six weeks after initial
request and after charge filed); Pennco Inc., 212 NLRB 677, 678 (1974)( employer
unreasonably failed to respond to information requests for over one month and did so only after
charge filed).
Respondent contends 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

33 In this regard I note that the Union initially made an information request in April 2007. The
October 2007 and February 2008 requests referred to in the complaint, for the most part,
reiterate this prior request to the extent it had not been complied with. Thus, it is apparent that
Respondent had a significant period of time to assemble the information sought.
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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 practices
with the Board. The administrative law judge found that the respondent had not violated the Act.
In that case, the respondent never raised any objection to disclosure of the information sought
by the union, characterized as “copious” and provided the bulk of it within one 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 be 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 additional information. Once such
requests were made, the information was promptly furnished.
Here, while it is undeniably the case that Respondent did provide information to the
Union as had been requested, it is also apparent that some information was delayed and other
information not provided at all. As the above-cited cases demonstrate, Respondent is not
empowered to make a unilateral determination that presumptively or otherwise demonstrably
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 have been rejected by the Board and the courts. “That the information appears
unnecessary to an employer is obviously an inadequate ground for refusal …” Amphlett Printing
Company, 237 NLRB 955, 956 (1978). Moreover, had the information sought by the union been
provided in a timely fashion, it is reasonable to infer 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-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). Further, contrary to
Respondent’s contentions, the fact that a contract has been negotiated without the requested
data does not prove that the information is 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 affected by the subsequent
execution of a contract without disclosure. 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 information would be available to it.
With the foregoing standards in mind, I will now evaluate the various information
requests made by the Union and the Respondent’s responses thereto.
3. The Information Requests
a. 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, and in particular, overtime information worked
by individual employees 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). The record shows that after the October 19, 2007 letter, the Union renewed its
request for such information both verbally and in writing on any number of occasions. Moreover,
the record shows that Saint Hilare advised Respondent that such information was necessary to
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enable the Union to properly evaluate the impact of its proposal to eliminate daily overtime.
On January 29, 2008, Jasinski stated that such information had been provided to the
Union, which as the record demonstrates, is not the case. In fact, no overtime information
whatsoever was provided to the Union until April 1, 2008, where it was stated that, “It is fair to
estimate that overtime hours typically [range] from 100-300 hours per week over the previous
year.” The Union then advised Respondent that that was not the information which had been
requested. Thereafter, on May 28, 2008, Respondent provided “total overtime hours by quarter
of 2006 and 2007” but, again, did not provide the information for individual employees. 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 per employee” for
each quarter of 2006 and 2007. Over one year later, in August 2009, Respondent finally
provided overtime information to the Union in the form, but not for the time frame, in which it had
been initially sought in October 2007 and thereafter.34
Aside from its presumptive relevance, it is clear from the record 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 Employer’s workweek proposal would have on the bargaining unit,
both in relation to individual employees and to the unit as a whole.
Accordingly, I find that by failing and refusing 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.35
b. The Identification of No-Frills Employees
On October 19, 2007, the Union requested, as it had done previously, that the Employer
identify all no-frills employees, without limitation. Union renewed its request both verbally and in
writing on numerous occasions.36 According to Jasinski, the Employer responded to this request
verbally at various negotiation sessions and in writing when it told the Union that there were no
employees in that category. Similarly, it appears from Saint Hilare’s and McCalla’s testimony
regarding various bargaining sessions that the parties discussed the issue on several
occasions. The Employer maintained there were no no-frills employees and the Union was
skeptical of the veracity of this claim due to the number of employees without health insurance
on the employee lists submitted by the Employer. Notwithstanding the foregoing, there is
insufficient evidence to show that the Employer had no-frills employees on its payroll prior to
June 2008.
However, the employee list sent to the Union in August 2009 shows that Respondent
subsequently came to employ 12 such employees. The first of these was hired on June 24,
2008 and the last on March 31, 2009. There is no evidence that Respondent provided

34 The information was provided for four quarters in 2008 and the first two quarters in 2009.
35 Saint Hilare’s June 10, 2008 letter updates this request for the period from June 1, 2007
to May 31, 2008. On August 24, 2009 overtime information for 2008 and the first two quarters of
2009 were provided.
36 See, for example, the specific requests set forth Saint Hilare’s February 14 and June 10,
2008 letters. In addition, the issue of the identity of no-frills employees is referenced in letters
dated July 7 and 23, 2008. Moreover, the record makes clear that Saint Hilare repeatedly raised
the issue at the bargaining table.
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information regarding these employees’ no-frills’ status to the Union prior to August 24, 2009.
Notwithstanding any claim of impasse asserted by the Employer, it nevertheless had a
continuing obligation to provide this information to the Union in a fashion as timely as
circumstances would allow. NLRB v. Acme Industrial, supra at 435-437; Watkins Contracting,
Inc., 335 NLRB 222, 225 (impasse is only a temporary deadlock or hiatus in bargaining during
which an employer has a continuing obligation to supply relevant information.)
Respondent has failed to offer and the record fails to establish any reasonable
explanation for its delay in providing such information to the Union. Accordingly, I find that
Respondent’s failure to timely identify its no-frills employees constitutes a failure to provide
information in violation of the Act.
c. Work Schedules
The complaint alleges that the Employer failed and refused or, alternatively, delayed in
providing employee work schedules to the Union. In his October 19, 2007 letter, 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. However, it was not until May 28,
2008, that Respondent provided work schedules for the dietary, housekeeping and nursing
departments for the period beginning in late-December 2007 and continuing through
approximately April 2008. On June 10, 2008, Saint Hilare responded that the submission was
not fully responsive to the Union’s request. 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. Thereafter, on August 24, 2009,
Respondent produced additional schedules for May and June, 2009.
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
investigation 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. Respondent
has failed to explain the delay in providing work 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.37
Accordingly, I find that Respondent has unlawfully delayed and refused to provide the Union
with work schedules of bargaining unit employees, as alleged in the complaint.
d. 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. The record establishes that this assertion was contrary to the practice at the facility.
The Union’s request for OSHA logs was renewed in Saint Hilare’s letter of February 14, 2008.
Thereafter, on April 1, Respondent provided 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

37 As Saint Hilare noted in his letter of July 7, 2008, had the Employer complied with the
Union’s request in a timely fashion, it is likely that additional schedules could have been
produced.
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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 proposals.
Respondent has failed to rebut the presumption 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 after the October 19, 2007 request.38 Accordingly, I find that Respondent unlawfully
delayed the production of OSHA logs for 2005, 2006 and 2007, as alleged in the complaint.
e. Health Insurance Premium Information
On June 22, 2007, the Employer provided the Union with the total cost for health
insurance premiums for 2006 and the first quarter of 2007. The Union had also previously been
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 information during bargaining, and reiterated this request in his letter of October
19.
On January 29, 2008, Respondent wrote that such information had already been
provided. By letter dated February 14, Saint Hilare explained that the information had not been
provided and could not be computed, as had been suggested, by dividing the cumulative cost
furnished by the number of employees because the number of employees fluctuated from
month to month. On April 1, 2008, Respondent provided the monthly insurance premium cost
sought by the Union.
The Board has held that premiums paid under health insurance plans are wages, and as
such, information regarding premiums is presumptively relevant. The Nestle Company, 238
NLRB 92, 94 (1978). Further, it is apparent that the cost of employee fringe benefits is of
particular relevance during collective bargaining negotiations.
Moreover, in this case, such information related to an issue central to the parties during
bargaining; i.e. whether the Employer would (or would not) agree to some measure of
dependent 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).39 Accordingly, I find the delay in providing such
information to be unlawful.
f. Medicaid Cost Reports

38 Obviously with regard to this, as well as other, requests, the Employer had been put on
notice some six months previously that the Union was seeking such information.
39 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.”’
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On October 19, 2007, the Union requested copies of Medicaid cost reports for 2005 and
2006. These reports are voluminous, and there is evidence that the Union’s research
department makes use of them to obtain general information about the size, finances and
operations of the nursing home.
On January 29, 2008, Respondent replied that the information 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 understand 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 reports for 2005 and 2006 were provided by Respondent on May 28, 2008.40
Respondent has argued that this information is not relevant and that by seeking such
information, the Union has demonstrated its bad faith.
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).
I do not agree with Respondent that the Medicaid cost reports do not contain relevant
information. Rather, I find that, inasmuch as they contain primarily non-unit information, their
relevance must be demonstrated. Here, I find that there is doubt 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. Disneyland Park, supra at 1258. I note that
neither McCalla nor Saint Hilare testified that they ever specifically stated to the Employer why
the Union was seeking this information, and there is no such explanation in any of the
correspondence in the record.41
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, were not
presumptively relevant and that 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.
New Surfside Nursing Home, 330 NLRB 1146 (2000), cited by the General Counsel,
reached a contrary result. There, however, the administrative law judge specifically found that
the union agent “explained why the cost reports were relevant to negotiations.” 330 NLRB at
1148. The Board, in affirming the judge, specifically noted that the Union had demonstrated the
relevance of the information sought. Here, there is no such evidence and, therefore, I cannot

40 It does not appear from the record that Respondent ever produced the 2007 report.
41 Saint Hilare’s October 19, 2007, February 14 and April 9, 2008 communications to
Jasinski on this issue fail to state why the Union is seeking this information and are not sufficient
to demonstrate its relevance.
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reach a similar conclusion.
Inasmuch as I find that the Union failed to demonstrate the relevance of the Medicaid
cost reports and, further, that the General Counsel has not sufficiently established that their
relevance would have been apparent to the Employer, I do not find that Respondent has
violated the Act by delaying their production, or by failing to provide them in their entirety.
g. The Use of Agency Employees
The General Counsel has additionally alleged that Respondent failed and refused or to
provide information to the Union regarding its use of agency employees at its facility.
The Union’s October 19, 2007 letter sought the names of all agencies used by the
Employer to provide temporary 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, both at the bargaining
table and in writing. On July 23, 2008, the Union updated its request to seek information about
possible agency use for the period from January 1 through July 22, 2008.42 Although Saint
Hilare had not spoken to any agency employees, he had had received anecdotal evidence,
coming from employees, that agency LPNs were being used during the period of time the
parties were bargaining. 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). Further,
the record establishes that Saint Hilare brought these anecdotal reports to the attention of the
Employer at various points throughout bargaining.
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);
United Graphics, 281 NLRB 463, 465 (1986). 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. See Globe Stores, 227 NLRB 1251, 1253-1254
(1977) (names, rates of pay, and store of employment of group managers performing the same
tasks as rank-and-file 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 displaced. Moreover, the relevancy
of such information would have been apparent to the Respondent, and I note that Respondent
has never contended otherwise.
The record establishes that Respondent repeatedly told the Union that no agency
employees were being used at Harbor View. General Counsel does not contest this assertion
but argues that the evidence establishes that such denials were false. The evidence relied upon
by the General Counsel in support of this contention consists of (1) the anecdotal reports
received by Saint Hilare from employees; (2) the memorandum distributed to employees in
February 2008 indicating that the facility had retained temporary workers in anticipation of the
Union’s March 7 informational picketing and (3) Jasinski’s purported admission that the facility
used temporary workers during the three-day strike in August 2009. In disagreement with the
General Counsel, I find that none of the above cited evidence is sufficient to establish that the

42 The failure to respond to this updated request is not alleged in the complaint.
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Respondent had employed temporary workers to perform the work of bargaining unit employees
during the period specified by the Union in its information request and alleged in the complaint,
or at any other relevant time.
As an initial matter, the second-and third-hand hearsay reports received by Saint Hilare,
standing alone, are too insubstantial to form any sort of basis upon which I might conclude that
the facility used agency employees during the period encompassed by the Union’s information
request or during the time they were bargaining in 2007-2008. Further, while Respondent’s
memorandum to employees indicates that temporary workers would be utilized in the event
employees walked off the job as a consequence of the March 2008 informational picket, there is
no evidence that there was any such work stoppage. Thus, this evidence is not probative of
whether agency employees were, in fact, used at this time. Further, although Jasinski testified
that he heard about an agency called Tri-State Health Care during the three-day strike which
occurred in August 2009, there is no direct evidence in this record that such employees were
actually contracted on that occasion or that, if they were, they performed bargaining unit work.43
Thus, it is not contested that while the parties were bargaining in 2007-2008 Respondent
told the Union that no agency employees were being used, and there is insufficient probative
evidence to establish to the contrary. Accordingly, I cannot conclude that that the Respondent
provided false information to the Union or otherwise unlawfully failed and refused to provide
information to the Union regarding agency usage, as alleged in the complaint.44
Accordingly, for the reasons set forth above, I find that Respondent has failed and refused
or unlawfully delayed in providing information, as alleged in the complaint, as follows:
documents showing the number of overtime hours worked by each bargaining unit employee on
a quarterly basis in 2006 and 2007; the names of no-frills employees; copies of employee 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 Section 8(a)(1) and (5) of the Act.45
B. The Alleged Unilateral Changes

43 In addition, even if the facility had used such employees, this particular event is sufficiently
remote from what has been alleged in the complaint so as to raise serious doubt as to whether it
could support a finding that a violation had occurred.
44 I note that while the General Counsel has maintained that the Medicaid cost reports and
work schedules contain information regarding agency usage, no attempt was made to utilize
any of these documents, which had been provided to the Union by the Respondent prior to the
hearing and entered into evidence in this matter, to question witnesses on this issue or to
otherwise adduce probative independent evidence of agency usage.
45 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. As the General
Counsel has noted in his brief, a request for these documents was included in Saint Hilare’s
October 19, 2007 letter. However, a failure to provide such documents was not alleged in the
complaint; nor was this or any related allegation identified by the General Counsel as violation
of the Act at any time during the hearing. Accordingly, I find that the matter was not fully litigated
and decline to address it further. See New Surfside Nursing Home, supra at 1146, fn. 1. In any
event, the remedy for such an allegation would be duplicative of what has already been
recommended.
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The complaint alleges that in July 2008, Respondent implemented its final offer and
unilaterally changed terms and conditions of employment for the Bristol Manor unit employees
without the agreement of the Union and in the absence of a valid bargaining impasse.
Respondent’s answer denied these allegations of the complaint and asserts that it legally
implemented its 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.
1. Respondent’s Claim of Impasse
a. Applicable Legal Standards
The Board considers negotiations to be in progress, and thus will find no genuine
impasse to exist, until the parties are warranted in assuming that further bargaining would be
futile or that there is “no realistic possibility that continuation of discussion at that time would
have been fruitful.” Cotter & Co., 331 NLRB 787, 787 (2000), quoting AFTRA v. NLRB, 395 F.
2d 622, 628 (D.C. Cir. 1968); see also Larsdale Inc., 310 NLRB 1317, 1318 (1993), citing PRC
Recording Co., 280 NLRB 615, 635, enfd. 836 F.2d 289 (7th Cir. 1987).
The Board does not lightly infer the existence of an impasse, and the burden of proving it
rests on the party asserting it. Naperville 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 rel. 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 negotiations. Taft Broadcasting Co, 163 NLRB 475,
478 (1967), enfd. sub nom AFTRA v. NLRB, supra. The Board also considers the parties'
demonstrated flexibility and willingness 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 continued 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. den. 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., supra (citations omitted). 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); Sacramento 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 their bargaining obligation: “As a recurring feature in the
bargaining process, impasse is only a temporary deadlock or hiatus in negotiations which, in
almost all cases is eventually broken, either through a change of mind or the application of
economic force.” Charles D. Bonnano Linen Serv. 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
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impasse 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.” Pavilions at Forrestal, 353 NLRB No. 60,
slip op. at 1 (2008)(quoting Airflow Research & Mfg. Corp., 320 NLRB 861, 862 (1966)).
b. The Effect of Respondent’s Unfair Labor Practices on the Issue of
Impasse
The fact that Respondent had, during the period of time the parties were negotiating,
committed other independent unfair labor practices strongly weighs against a finding that a valid
impasse in bargaining had occurred.
As has long been recognized, a failure to provide information relevant to core issues
separating the parties frustrates the bargaining process and precludes 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 information related to mandatory
subjects of bargaining such as overtime, health insurance, employee schedules and the health
and safety of employees and went to core issues which were the subject of discussion and
debate over the months of negotiations, as discussed above.
As has been noted, Respondent asserts that the Union did not need such information to
make its proposals and that the information sought was neither necessary nor relevant.
Respondent argues, therefore, that any alleged failure to provide such information is not
determinative of whether the parties reached a valid impasse. In support 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”
precludes a finding of impasse. In that case, 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 bargaining and there was no convincing argument that the information
would have broken a deadlock over these other core issues.
In reaching this conclusion, however, the Board made clear the standard relied upon
was the relevance of the information to the issues separating the parties. There was no
suggestion that anything beyond that standard was required. Thus, Respondent is incorrect in
its apparent assumption that it must be shown that the information would have changed the
course of bargaining. As has been observed by one court: “the Board has never required the
establishment 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.”); see also Bryant & Stratton
Business Institute, 321 NLRB at 1014. Here, in contrast to the circumstances in Sierra Bullets,
supra, as both Saint Hilare and McCalla testified, the Union sought information throughout the
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bargaining process which was directly tied to proposals or anticipated counterproposals
regarding such matters as the proposed elimination of daily overtime, a proposed increase in
the allowable number of no-frills employees, staffing levels, medical insurance and the health
and safety of employees in the workplace. Much of this information, such as OSHA logs and
monthly insurance health insurance premiums was not provided to the Union until after the
implementation of the final offer. Other information, such as employee overtime and schedules
was not provided until August 2009.
Respondent further 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 union requested the information after months of
extensive bargaining, after the contract’s expiration, after the union’s rejection of the employer’s
final offer, and after the respondent declared it had nothing left to offer.46 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.
Accordingly, I find that Respondent’s failure to provide presumptively or otherwise
relevant information regarding bargaining proposals and mandatory subjects of bargaining is a
factor which weighs strongly against a finding that there was a valid bargaining impasse.
C. Consideration of Impasse Factors
1. The Parties’ Bargaining History
While the Union or its predecessor Local 1115 have represented employees at Harbor
View for a number of years and have executed a series of 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
parties to work from.
In support of its contention that impasse had been reached, Respondent notes that the
negotiations spanned a period of over one year. 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
circumstances. Of course, inasmuch the parties commenced bargaining in June 2007, and
Respondent declared impasse in March 2008, it can hardly be said that they had been
bargaining for a year or more. In addition, such a claim fails to acknowledge the relatively few
sessions held during this period of time.
The General Counsel argues that there were many issues to be resolved that
complicated the negotiations including the fact that Respondent had furnished the Union with a
compilation agreement which did not accurately represent existing terms and conditions of
employment and Respondent’s continual non-compliance with the Union’s information requests.
Here, the parties’ bargaining history does not support a finding of impasse. Respondent
continued to provide information to the Union in a piecemeal basis during the entire year of

46 The Board additionally found that the parties had reached a good-faith impasse, and the
union showed no interest post-implementation bargaining.
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bargaining, up to and, in significant part, after its declaration of impasse. As noted above, much
of this information concerned itself with mandatory subjects of bargaining that were in dispute.
The history of the contract negotiations, as described by the parties, similarly fails to
demonstrate that the parties had reached impasse. The evidence does not support the
Respondent’s contention that the Union’s proposals were cosmetic, meant to create the illusion,
but not the reality of bargaining. For example, on cross-examination Respondent adduced
testimony from Saint Hilare that, at the February 12, 2008 meeting the economic proposals
exchanged by the parties represented concessions from their prior positions and that the parties
were engaging in “meaningful discussions” at the time. At the following session, on February 25,
the Union modified its proposal even further, extending the contract term and reducing the
amount of the signing bonus. Although these proposals may not have represented concessions
sufficient to satisfy the Employer, they were concessions nonetheless. 47 The Employer
presented its counter-proposal at the next session, which also contained certain concessions,
and the evidence is unrebutted that the Union stated at the time that the Union was preparing a
counter-proposal on both language and economics. Although Jasinski testified that he declared
that the parties were at impasse at that time, the history of the bargaining, as set forth in the
record, fails to show that that was actually the case. Respondent has failed to meet its burden to
show how, in two bargaining sessions, the parties went from “meaningful discussions” to the
sort of deadlock which would establish impasse.
Respondent has argued that the Union never modified its non-economic proposals after
October 2007. The record shows that the Union made an initial proposal encompassing the so-
called non-economic or language proposals at the first bargaining session. The Employer then
submitted its language proposals. After that time, as a result of discussions at the Harbor View
and Castle Hill tables, the Union had modified its initial proposal to approach the Employer’s
proposals. There is no evidence that Employer ever responded in a substantive fashion to this
counter-proposal. Rather, at the February 12, 2008 meeting, the Employer referenced its initial
proposal and stated that unless the Union was prepared to provide a counter-offer, its previous
proposal was final. Thus, the Employer had put the Union in the position of bargaining against
itself with regard to such matters. Moreover, as the record reflects, the two bargaining sessions
that were held between October 2007 and March 2008 primarily concerned themselves with the
exchange of economic proposals. At the end of the March session, the Union stated that it had
further proposals to put forward. Thus, it cannot be said that the record establishes that the
Union demonstrated an unwillingness to move further with regard to non-economic matters.
The evidence of the parties’ final meeting, in September, 2009, does nothing to alter my
conclusions. This meeting, which appears to have been prompted by a strike by Respondent’s
employees, revived the moribund bargaining relationship, and demonstrates that the parties
have more to discuss, in particular a regards the issue of dependent health coverage, and that
further meetings can prove fruitful.
Thus, I conclude that the parties’ bargaining history does not support Respondent’s
contention that they had reached a valid impasse at any time prior to the implementation of the
final offer.
2. Good Faith of the Parties in Negotiations

47 Thus evidence fails to support Respondent’s contention, as set forth in its brief, that the
Employer was the only side which made movement, especially with regards to wages.
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Respondent accuses the Union of adopting a “take it or leave it” strategy, maintaining
fixed positions and engaging in regressive 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 (also referred to by Respondent as the “master
agreement” or the “statewide agreement”). 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 purpose of delay and to
foreclose a finding of impasse. ACF Industries, 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 in lockstep with those found in
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). Here, under all the circumstances, Saint Hilare’s statement that the Union was seeking
a “state-wide contract” is encompassed by the foregoing precedent.
While Saint Hilare articulated the Union’s goals, there is no evidence that the Union
negotiators stated that any issue was nonnegotiable or that had to be in lockstep with the terms
of any other agreement. To the contrary, the record establishes that the Union made various
concessions on non-economic issues which reflected an attempt to reconcile the parties’
varying positions on matters such as the probationary period, union activities and
communications, discipline and discharge, transfers and promotions, seniority, layoff and recall
and health and safety. Concessions were offered during bargaining regarding economic issues,
as well, in particular regarding the term and effective date of the agreement, wages and the date
minimum salaries would take effect. Moreover, at the bargaining session on February 25, 2008,
the Union presented the Employer with a significant modification of its proposal for family health
coverage whereby the Employer would not pay any premiums for the first five years and then be
subject to a sliding scale and would be liable for the full premium only after an employee had
reached ten years of employment. In this regard, there is no probative evidence that the Union
insisted on the Employer’s participation in the GNYBF. They sought from the outset an
improvement in benefit levels, but their written proposals made plain that the Employer retained
the option to provide those benefits through another plan.
Matanuska Electric Assn., supra, cited by Respondent, is inapposite 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 distinguishable from those presented by the circumstances of this case.48 Similarly in
Teamsters Local 418, 254 NLRB 953, 957 (1981), also relied upon by Respondent, the Board
found that the union had violated the Act when it refused to meet or submit proposals to the

48 Richmond Electrical Services and J.D. Lunsford Plumbing, also cited by Respondent, are
discussed below.
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employer until national negotiations were completed because, as the union’s agents admitted, it
was under a mandate not to sign a contract which differed from those of a master agreement.
There, the union’s bargaining was found to be a “sham.” Here, despite Respondent’s claims to
the contrary, there is no such evidence or suggestion of such an intention in the Union’s conduct
during negotiations.49
Based upon the foregoing, I find that the evidence fails to support Respondent’s
assertion of bad faith on the part of the Union.
Respondent argues that the record demonstrates that it continually bargained in good
faith. In support of these contentions, Respondent points to the fact that it agreed to the Union’s
proposed location for the bargaining sessions; extended the collective-bargaining agreement on
two occasions; agreed to the appointment of a federal mediator; sought the Union’s approval
prior to implementing a holiday bonus and supplied information both prior to the initiation of
bargaining and on numerous occasions thereafter.
Assuming that Respondent had engaged in a period of good-faith bargaining, such a
finding would not necessarily establish that it was privileged to implement its final offer. “An
employer that engages in a period of good-faith efforts to reach a contract still violates the Act if
it unilaterally implements new terms of employment before exhausting the prospects of
concluding an agreement.” Newcor Bay City Division, 345 NLRB 1229, 1240 (2005). Further, in
this case, such claims become far less supportable where there is a clear failure to timely
provide presumptively or otherwise relevant information.
3. Contemporaneous Understanding of the Parties as to the State of Negotiations
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 an initial matter, I
credit the testimony that Saint Hilare advised Respondent, at their final meeting on March 5,
2008, that the Union had further moves to make and would prepare a counter-proposal to the
Employer’s final offer. Saint Hilare reiterated this position on March 28 and requested that the
Employer return to the bargaining table. Jasinski’s correspondence to Saint Hilare similarly
appears to acknowledge that further negotiations could prove fruitful. For example, on April 22,
he wrote that the Employer was “fully prepared to continue negotiating in good faith.” Similarly,
on June 17, 2008, he wrote to Saint Hilare: “We recognize that you are currently away on
vacation . . . We suggest you propose dates in July and August. . .” Jasinski sent a letter on
June 23 complaining that Saint Hilare had not contacted either the Employer or the mediator
suggesting that Saint Hilare contract the mediator to propose dates.50 He also continued to
send information to the Union. After reviewing these letters, Saint Hilare wrote to Jasinski and

49 Respondent and the Union each allege that their respective positions regarding the
applicability of the KL Agreement demonstrate bad faith. The KL Agreement expired in 1996
and has been superseded by any number of subsequent agreements. While I accept the
argument advanced by the parties – that the absence of a current full agreement presented an
obstacle to negotiations- I also note that there is no evidence the parties were in disagreement
about the terms and conditions of employment which were then applicable to Harbor View
employees. Clearly, the issue provided yet another source of continued friction between the
parties; however I do not find that the parties’ maintenance of their respective positions
regarding the applicability of the KL Agreement constitutes evidence of bad faith bargaining.
50 As noted above, Jasinski was aware that Saint Hilare was unavailable for much of the
month of June.
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reiterated the Union’s desire to continue to meet and bargain.
The Union’s course of conduct, on whole, demonstrates that it was willing to continue
negotiations with Respondent. While both parties may have been frustrated with each other’s
bargaining positions and the pace of negotiations, such frustration is not the equivalent of a
valid impasse, nor does it mean that a negotiated settlement is not within reach. Grinnell Fire
Systems, supra at 585, citing Powell Electrical Mfg. Co., 287 NLRB 969, 974-974 (1987), enfd.
as modified 906 F.2d 1007 (5th Cir. 1990)(futility, not some lesser level of frustration,
discouragement or apparent gamesmanship is necessary to show impasse.)
With regard to Respondent’s announcement of its final offer, I note that 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 conclusive
on the question of impasse because, “[a]fter final offers come more offers.”51
Based upon the foregoing, I conclude that the evidence is insufficient 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.
4. Importance of the Issues Central to the Bargaining
As Respondent notes, there were various key issues that remained in dispute up to and
through the final bargaining session. These include health insurance, wages, and minimums.
Respondent argues that the Union remained fixed in its position on such issues and the
resulting disputes created an impasse. 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 implement its bargaining proposal. Calmat Co., 331
NLRB 1084, 1097 (2000).
In disagreement with Respondent, and notwithstanding the fact that the parties had not
reached agreement on several critical 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 Union
never told the Employer that it would be unwilling to make further concessions on any particular
issue. Whether the parties could have eventually resolved their differences is unknown;
however, the evidence is clear that the Union was willing to continue bargaining and, even after
the final offer had been implemented, the Employer advised the Union that it was willing to
doing so as well. Under these circumstances, Respondent was required to “recognize that
negotiating sessions might produce other or more extended concessions.” Royal Motor Sales,
329 NLRB 760, 772 (1999), enfd. sub nom Anderson Enterprises v. NLRB, 2 Fed. Appx. 1 (D.C.
Cir 2001).
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
different from the standard, area contracts. In Richmond, the union conceded that the most-

51 Chicago Typographical Local 16 v. Chicago Sun Times, 935 F.2d 1501, 1508 (7th Cir.
1991).
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favored-nations clause precluded it from agreeing with the employer on wages lower than those
in the industry-wide 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.
Similarly, in J.D. Lunsford Plumbing, supra at 1366, it was found that the union therein, “was
simply unprepared to take anything less than it had obtained from the Association’s members.”
Here, by contrast, there is no evidence that the Union insisted on the Tuchman Agreement or
any other collective-bargaining agreement to the extent that it was unwilling to compromise
further. For example, the minimum salaries proposed by the Union were less than those that
were currently in effect under the Tuchman Agreement. In addition, it had proposed a significant
concession in regards to dependent health coverage, a benefit that was available to employees
at other facilities after six months of employment.
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 respondent “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 “irreconcilable 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, the Board has found no impasse to exist even when the evidence shows a
“wide gap” in the parties’ positions. See e.g. Grinnell Fire Systems, supra at 585-586 (no
impasse where employer expressed unwillingness to move from its positions and the union had
not offered specific concessions, but the union had declared its intention to be flexible and
sought further bargaining); Newcor Bay City Division, 345 NLRB at 1239, (union’s agent asked
to continue bargaining, assured the employer that it was prepared to negotiate and it was
expected that the union would make concessions based upon information provided by the
employer); Hayward Dodge, 292 NLRB 434, 468 (1989)(notwithstanding a “wide gap” there
was reason to believe that further bargaining might produce additional movement). Similarly,
here, the evidence here shows that despite a “wide gap” on wages, minimums, health insurance
and other issues, the Union officials were not at the end of their rope, but were willing to
negotiate further.
D. The Alleged Unilateral Changes in Terms and Conditions of Employment
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 bargaining without first bargaining to a valid impasse. NLRB v. Katz, 369 U.S. 736
(1962). While such negotiations are ongoing, “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).
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As discussed above, I have found that the parties had not reached impasse in
bargaining. Moreover, the record establishes that Respondent has made unilateral changes in
terms and conditions of employment. In particular, on or about April 1, 2008, Respondent
implemented its final offer which, among other things, eliminated daily overtime pay, reduced
health insurance benefits for employees working between 20 and 30 hours per week and
partially implemented its proposal regarding a uniform allowance for certain employees. In
addition, Jasinski testified that other provisions of the final offer have been implemented.
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 and Alkali Workers of America, Local
Union No. 1 v. Pittsburgh Plate Glass Co., Chemical 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, insurance coverage and vacation policies).
Accordingly, by making such changes in the absence of a valid impasse in bargaining
and without the consent of the Union, Respondent violated Section 8(a)(1) and (5) of the Act.
E. 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,
Respondent answered the amended complaint, denying the material allegations and asserting
certain affirmative defenses. In particular, 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
different legal theory from that set forth in the initial charge. In its post-hearing brief, Respondent
further argues that the Union is without standing to raise the claim. 52

52 In its post-hearing brief, Respondent additionally asserts, without citing any legal
authority, that “any claim of a violation would be covered by the grievance procedure under the
terms of the applicable collective bargaining agreement.” To the extent that this claim is
intended to be construed as an argument for deferral, such a claim is misplaced. Deferral is an
affirmative defense that can be waived if not raised in a timely fashion. To be timely raised, such
a defense must be raised either in the answer or at the hearing. 15th Avenue Iron Works, 310
NLRB 878, 879 fn. 12 (1991) enfd. 964 F.2d 1336 (2d Cir. 1992). . Here, Respondent’s answer
does not raise deferral as a defense. It is true, that at the hearing, Respondent’s counsel
asserted that, “the proper forum to bring [the alleged failure to make Fund contributions] up
would be under the provisions of the trust document that is part of the pension plan. And there
are – my understanding is that there is a formal procedure with regards to that.” As an initial
matter, I am not convinced that such a statement is sufficient to raise the issue of deferral.
Further, Respondent provided no evidence about the procedure under the trust documents to
substantiate its claim of an alternate forum to resolve this dispute. Moreover, even if I were to
find that Respondent had timely raised the issue and established the existence of an arbitral
forum, deferral would not be appropriate here. Even though Respondent’s failure to make Fund
Continued
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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 No. 22-CA-28153 as they relate to mandatory subjects that were the subject of ongoing
contract negotiations. General Counsel further contends that the Section 10(b) period did not
start to run until February 9, 2009, when the Fund conducted an investigation into whether
Healthcare and Sunshine had contracts with the Union. General Counsel maintains that the
Union did not have either actual or constructive notice of the delinquencies prior to that time and
that the Respondent has not met its burden of showing otherwise.
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 Bristol Manor has always made the required contribution 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 already 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
subsequently received a signed collective-bargaining agreement. As Respondent argues: “As
such, the Union’s allegations that the Employer deliberately failed to make the necessary
contributions to the Fund are utterly absurd. . .” (emphasis in original).
2. Analysis
a. The Union has Standing to File the Charge
With regards to Respondent’s argument regarding the Union’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 commerce may be filed by any person . . .
Moreover, in NLRB v. Indiana & Michigan Electric Company, 318 U.S. 9, 17-18 (1943),
the Supreme Court addressed the issue as follows:
_________________________
payments began during the term of the 2002 MOA, it continued past the expiration date of that
agreement and in fact most of the alleged failures to remit Fund contributions occurred post-
expiration. As the Board has held, such delinquencies are not susceptible to prospective
arbitration. Indiana & Michigan Electric Co., 284 NLRB 53 (1987); 15th Avenue Iron Works,
supra at 879. Accordingly, as the Board would be required to resolve the issue of post-
expiration delinquencies, it would be improper to defer the pre-expiration delinquencies, as the
Board will not defer only a portion of intertwined issues in unfair labor practice proceedings. Id.
Further, here there are other outstanding issues, such as Respondent’s failure to provide
necessary and relevant information, which are not deferrable under Collyer Insulated Wire, 192
NLRB 837 (1971) and its progeny. Such piecemeal deferral is disfavored by Board policy. 15th
Avenue Iron Works, supra.
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The Act requires a charge before the Board may issue a complaint, 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 complaints 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 permitted 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 accusations. The charge does not
even serve the purpose of a pleading.
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 Union of America (Ohio Power Co.), 203 NLRB 230 (1973).
b. The Section 10(b) Issue
Section 10(b) of the Act provides, in relevant part, that “no complaint shall issue based
upon any unfair labor practice occurring more than six months prior to the filing of the charge
with the Board and the service of a copy thereof upon the person 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 original 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 allegations 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).
Second, we shall look at whether the otherwise untimely allegations 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, usually 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 defenses to both allegations, and thus whether a
reasonable respondent would have preserved similar evidence and prepared
a similar case in defending against the otherwise untimely allegations as it
would in defending against the allegations in the timely pending charge.
Nevertheless, for the following reasons, I find that the amendment to the charge is timely
filed. The Section 10(b) limitations 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. See
Vanguard Fire & Security Systems, 345 NLRB 1016, 1016 (2005); see also Allied Production
Workers Local 12, 337 NLRB 16, 18 (2001) (finding that the 6-month period provided by Section
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 constructive knowledge of an unfair labor practice where it could have
discovered the alleged misconduct through the exercise of reasonable diligence.” Ohio & Vicinity
Reg’l Council of Carpenters, 344 NLRB 366, 368 (2005) (citing Phoenix Transit System, 335 NLRB
1263 fn. 2 (2001)) (applying Section 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
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St. Barnabas Medical Center, 343 N.L.R.B. 1125, 1127 (2004) (finding that knowledge is imputed
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 attention 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) (quoting 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 noncompliance.”); 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 repudiation 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 knowledge must be imputed directly to a
union, and not to third parties, 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 entities are unrelated. Overall, then, the Union, and not the Fund, must have had knowledge of
the wrongdoing in order for the Section 10(b) period to begin.
That being said, I do not agree with the General Counsel 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.53 While it can be argued that there was no
“clear and unequivocal” 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
simple inquiry would have revealed that the employer had ceased making payments, as was the
case after the Union and the Fund held their conference call. Ohio & Vicinity Reg’l 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

53 I additionally note that Blount specifically noted that most of the checks were more than
six 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.
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me to conclude that actual or constructive knowledge had or should have occurred on a prior
occasion.
Respondent points to the November 2006 e-mail exchange between Union representative
Alcoff and Fund collections manager Salm regarding the relationship between the Omni facilities and
Healthcare and Sunshine. From these communications it is apparent that the Union was aware that
the Fund had failed to deposit the remittances sent by Healthcare and Sunshine. From the evidence,
however, it is also apparent that at that time Healthcare and Sunshine were continuing to make
appropriate contributions. Thus, at the time these e-mails were exchanged there was no extant unfair
labor practice. Moreover, there is no basis for me to impute to the Union constructive knowledge of
any future failure to remit contributions to the Fund.
Accordingly, based upon the record evidence as adduced by the parties, and bearing in
mind that it is incumbent upon Respondent to meet its burden of proof in asserting this affirmative
defense, 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 a significant component of the
bargaining unit.
Inasmuch as, by that time, the 2002 MOA had expired, a timely charge had to be filed and
served not more than six months after the Union received actual or constructive notice of the unfair
labor practice. See Chemung Contracting Corporation, 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 six months after October 10, 2008, the date on which it should have known of
the Employer’s alleged wrongdoing. See generally Concourse Nursing Home, 328 NLRB 692, 694
(1999). (Section 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 amended 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 Sec. 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 six month period after the Union received constructive notice
of the unfair labor practice, albeit just barely.54 Accordingly, I find that the Union’s charge was filed
and served in accordance with the provisions of Section 10(b) of the Act.55
As noted above, the amended charge alleges a failure to remit pension contributions dating
from July 2007. The amended complaint, however, alleges that the failure to remit such contributions
dates back to February 2007. Here, based upon the 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 violation of the Act, sequence of events and defenses
interposed by Respondent. In addition, the timing of the violation was a matter fully litigated at the
hearing. See Concourse Nursing Home, supra at 694 fn. 13.

54 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).
55 Section 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.
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c. The Unilateral Cessation of Pension Fund Contributions
Having found that the charge is timely filed and served and the allegations of the amendment
to the complaint are not barred by the applicable statute of limitations, I will now proceed to evaluate
the evidence adduced in this matter. As noted above, Blount testified that the final checks from
Healthcare and Sunshine were received in May 2007, and were remittances for the month of January
2007. Blount’s testimony that no contributions were received thereafter, was unrebutted by probative
evidence.56 There is no evidence that the Union was afforded notice or an opportunity to bargain
over this issue at any relevant time.
Respondent further argues that it was the Fund that returned the remittance checks to
Healthcare and Sunshine, and accordingly there is no evidence that the Employer deliberately failed
to make contributions. Inasmuch as the Employer ceased sending contributions for periods after
January 2007, which is well over one year prior to the return of any checks, the logic of this argument
is unclear. While the Fund cannot be said to be blameless in these circumstances, 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 continuing obligation to make contributions to the Fund on behalf of its unit
employees, notwithstanding any apparent failure on the part of the Fund to act with some measure of
diligence in this matter. 57
Accordingly, I find that Respondent 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 letters of October 19,
2007 and February 14, 2008, 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 licensed practical nurses, certified nurses aides, dietary
and housekeeping and recreation employees employed by Respondent at its Jersey
City, New Jersey facility.

56 As noted above, to the extent Healthcare and Sunshine may have resumed making Fund
contributions on behalf of unit employees in 2008 and 2009, this goes to the mitigation of
Respondent’s liability and is appropriately addressed in compliance proceedings.
57 To the extent that Healthcare and Sunshine may have remitted contributions for unit
employees during the period from January 2008 to June 2009, this is a matter appropriately
addressed in a subsequent compliance proceeding.
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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
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 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. In particular, I shall recommend that the Respondent supply
the requested information, other than that which has already been provided, to the Union. I
additionally recommend that Respondent be ordered to place into effect all terms and conditions
of employment which were in existence on July 24, 2007, and to maintain those terms in effect
until a new contract is concluded, the parties have bargained to a valid impasse or the Union
has agreed to the changes. Provided, however, that nothing in this recommended 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 April 1, 2008 or its unilateral discontinuance of contributions to the SEIU National Industry
Pension 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 reimbursing unit employees for any
expenses resulting from Respondent’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 benefit 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
contributions 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).58
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended59
ORDER
Respondent Harbor View Health Care Center, Jersey City, New Jersey, its officers,
agents, successors and assigns, shall

58 I leave for the compliance portion of these proceedings the appropriate 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.
59 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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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 licensed practical nurses, certified nurses aides, dietary
and housekeeping employees and recreation employed by Respondent at its Jersey
City, New Jersey facility.
(b) Failing to adhere to the terms and conditions of employment that were in existence
on July 24, 2007, until a new contract is concluded or good-faith bargaining leads to an
impasse, or the Union agrees to changes.
(c) Implementing terms and conditions of employment that are different from those in
existence on July 24, 2007, before a new contract is concluded 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 effectuate the policies of the Act.
(a) Furnish to the Union, in a timely and complete manner, the information requested in
the Union’s letters of October 19, 2007 and February 14, 2008, that has been found necessary
and relevant to the Union’s performance of its duties as the exclusive collective-bargaining
representative of employees in the above-described unit, to the extent such information has not
been previously provided to the Union.
(b) Make a reasonable effort to secure any unavailable information requested in the
Union’s letters described above and, if that information remains unavailable, explain and
document the reasons for its continued unavailability.
(c) On request, restore, honor and continue the terms and conditions of employment
which were in effect on July 24, 2007, in the manner set forth in the remedy section of this
decision, until a new contract is concluded or good-faith bargaining leads to an impasse, or the
Union agrees to changes.
(d) 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
contractual benefits, with interest, as provided for in the remedy section of this decision.
(e) Make contributions, including any additional amounts due to any benefit 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.
(f) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
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Board or its agents, all payroll records, social security payment records, 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.
(g) Within 14 days after service by the Region, post at its facility in Jersey City, New
Jersey copies of the attached notice marked “Appendix.”60 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 October 19, 2007.
(h) 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, March 10, 2010.
______________________
Mindy E. Landow
Administrative Law Judge

60 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.”
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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 fail to provide to the Union, or unnecessarily 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 licensed practical nurses, certified nurses aides,
recreation employees, dietary and housekeeping employees employed by Harborview
Health Care Center at its Jersey City, New Jersey facility.
WE WILL NOT fail to comply with the terms and conditions of employment that were in
existence on July 24, 2007, before 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 employment that are different from those that
were in existence on July 24, 2007, before a new contract is concluded or good-faith bargaining
leads to a valid impasse, or the Union agrees to the 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
exercises of the rights guaranteed you by Section 7 of the Act.
WE WILL restore, honor and continue the terms and conditions of employment that were in
effect as of July 24, 2007, until a new contract is concluded or good-faith bargaining leads to an
impasse, or the Union agrees to changes.
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WE WILL make employees and former employees whole for any and all loss of wages and
other benefits incurred as a result of our unlawful alteration or discontinuance of contractual
benefits, with interest.
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 unlawful unilateral changes.
HARBOR VIEW HEALTH 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.