ALARIS HEALTH AT HARBORVIEW

National Labor Relations Board - Board Decisions

Dec 21, 2018

367 NLRB No. 54 (N.L.R.B. 2018)

367 NLRB No. 54
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Alaris Health at Harborview and 1199, SEIU United
Healthcare Workers East. Cases 22–CA–125023,
22–CA–125882, and 22–CA–140591
December 21, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On February 11, 2016, Administrative Law Judge Mi-
chael A. Rosas issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the Gen-
eral Counsel and the Charging Party each filed an answer-
ing brief, and the Respondent filed a combined reply brief
to the answering briefs.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2

1 This case is one of four related cases involving unfair labor practice
strikes at facilities affiliated with Alaris Health. See, in addition to this
case, Alaris Health at Castle Hill, 367 NLRB No. 52 (2018); Alaris
Health at Boulevard East, 367 NLRB No. 53 (2018); and Alaris Health
at Rochelle Park, 367NLRB No. 55 (2018). The judge heard these cases
consecutively and issued four separate decisions. The Respondent and
the Charging Party each submitted consolidated briefs addressing all four
cases, while the General Counsel submitted a separate brief in each case.
2 Member Emanuel is recused and took no part in the consideration
of this case. Additionally, former Member Hirozawa and Ellen Dichner,
former Member Pearce’s chief counsel, took no part in the consideration
of this case. Therefore, we deny as moot the Respondent’s Motion to
Disqualify Board Member Kent Y. Hirozawa and Chief Counsel Ellen
Dichner.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
In the absence of exceptions, we adopt the judge’s findings that the
Respondent violated Sec. 8(a)(5) and (1) by (1) refusing to bargain in
good faith with the Union’s chosen bargaining committee, (2) unreason-
ably delaying in providing the Union with requested information that was
relevant and necessary for bargaining, and (3) refusing to provide the
Union with requested information concerning health insurance and daily
work schedules. Also in the absence of exceptions, we adopt the judge’s
findings that the Respondent violated Sec. 8(a)(1) by (1) warning em-
ployees at a group meeting that they could lose their jobs if they went on
strike, and (2) distributing leaflets to employees stating that the Respond-
ent “will have replacement for all employees who choose to go out on
strike and walk away from their jobs,” and “[o]nce a strike is over, you
may not be able to immediately return to your job.”
In affirming the judge’s findings, we do not rely on his citation to
Alcan Rolled Products, 358 NLRB 37 (2012), which was issued by a
panel subsequently found invalid by the Supreme Court in NLRB v. Noel
Canning, 134 S.Ct. 2550 (2014). Although Wayneview Care Center, 352
NLRB 1089 (2008), a two-member decision cited by the judge, was
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,3 and conclusions and to
adopt the judge’s recommended Order as modified and set
forth in full below.4
In adopting the judge’s finding that the Respondent vi-
olated Section 8(a)(3) and (1) of the Act by refusing to
immediately reinstate unfair labor practice strikers Ingrid
Williams and Kyria Miller following a 3-day strike in Sep-
tember 2014,5 we note that there is no exception to the
judge’s finding that the strike was an unfair labor practice
strike. Because the strike was an unfair labor practice
strike, we reject the Respondent’s argument that its con-
tracts with staffing agencies that supplied temporary re-
placements during the strike and its status as a health care
facility justified its delay in reinstating Williams and Mil-
ler after their unconditional offer to return to work. See
Alaris Health at Castle Hill, 367 NLRB No. 52 (2018)
(holding that an employer’s contractual obligation to re-
tain temporary strike replacements for a minimum period
vacated by the United States Court of Appeals for the District of Colum-
bia Circuit following issuance of the Supreme Court’s decision in New
Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010), we rely on it here
because a three-member panel of the Board incorporated the decision by
reference in a subsequent decision, and that decision was enforced. See
2010 WL 5173270 (D.C. Cir. 2010) (order vacating and remanding to
the Board), 356 NLRB 154 (2010), enfd. 664 F.3d 341 (D.C. Cir. 2011).
We note that Atlas Refinery, Inc., 354 NLRB 1056 (2010), another two-
member decision cited by the judge, was also reaffirmed and incorpo-
rated by reference in a subsequent decision by a three-member panel.
357 NLRB 1798 (2011), enfd. 620 Fed.Appx. 99 (3d Cir. 2015).
4 As noted above, the Respondent has not excepted to the judge’s
finding that it unlawfully refused to bargain with the Union’s chosen bar-
gaining committee, nor does it argue that the judge’s recommended af-
firmative bargaining order is improper. We therefore find it unnecessary
to provide a specific justification for the affirmative bargaining order.
See Lily Transportation Corp., 363 NLRB No. 15, slip op. at 3 fn. 5
(2015), enfd. 853 F.3d 31 (1st Cir. 2017); Heritage Container, Inc., 334
NLRB 455, 455 fn. 4 (2001); see also Scepter Inc. v. NLRB, 280 F.3d
1053, 1057 (D.C. Cir. 2002).
In accordance with the Board’s decision in King Soopers, Inc., 364
NLRB No. 93 (2016), enfd. in pertinent part 859 F.3d 23 (D.C. Cir.
2017), we shall order the Respondent to compensate affected employees
for their search-for-work and interim employment expenses regardless
of whether those expenses exceed interim earnings. Search-for-work and
interim employment expenses shall be calculated separately from taxable
net backpay, with interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). In addition, we shall modify the
judge’s tax compensation and Social Security reporting remedies in ac-
cordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016).
We shall modify the judge’s recommended Order to conform to this
remedial change and to the Board’s standard remedial language. We shall
substitute a new notice to conform to the Order as modified.
5 Williams and Miller were both ultimately returned to work, Wil-
liams on May 19, 2015, and Miller on October 17, 2014, not October 10
as the judge stated in his decision. (Miller resigned shortly thereafter.)
Because both Williams and Miller were returned to work, albeit after an
unlawful delay, we shall omit the judge’s reinstatement remedy.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of time does not constitute a legitimate and substantial
business justification for denying immediate reinstate-
ment to unfair labor practice strikers). In addition, while
employers generally have a 5-day administrative grace pe-
riod to reinstate unfair labor practice strikers under Drug
Package Co., 228 NLRB 108, 113–114 & fn. 28 (1977),
enf. denied in part on other grounds 570 F.2d 1340 (8th
Cir. 1978), the Respondent disavowed any claim that its
multiweek delay in reinstating the unfair labor practice
strikers was justified by the grace period described in
Drug Package Co., and we find that the Respondent was
not entitled to this grace period. See, e.g., Teamsters Lo-
cal 574, 259 NLRB 344, 344 fn. 2 (1981) (citing Interstate
Paper Supply Co., 251 NLRB 1423 (1980)) (Where “an
employer has rejected, attached an unlawful condition to,
or ignored an unconditional offer to return to work, the 5-
day grace period serves no useful purpose and backpay
will commence as of the unconditional offer to return to
work.”).
Even assuming arguendo that a delay beyond 5 days in
reinstating unfair labor practice strikers could ever be jus-
tified by an employer’s contractual obligation to retain
temporary strike replacements for a minimum period of
time, the Respondent would have failed to demonstrate
that its agency contracts justified delaying the reinstate-
ment of Williams and Miller. See Alaris Health at Castle
Hill, above, slip op. at 5. Although the Respondent’s con-
tract with Tristate Rehab Staffing required the Respondent
to retain eight Tristate employees for 4 weeks, and the Re-
spondent’s contract with Towne Nursing Staff required
the Respondent to retain three Towne employees for 6
weeks, there is no credited evidence in the record regard-
ing the parties’ negotiations that resulted in those contract
terms. In addition, only one agency-supplied employee
(from Tristate) actually worked at Harborview after the
strike ended, and the Respondent has not provided any ev-
idence that it had to compensate Tristate or Towne for re-
placements who were guaranteed employment after the
strike but did not work. As a result, there is no basis upon
which to find that the staffing agencies required the
lengthy minimum terms as a condition of supplying the
temporary strike replacements, that the Respondent was
financially liable for any agency employees whom it did
not use after the strike ended, or even that the one agency-
supplied employee who worked at Harborview after the
strike ended actually replaced either Williams or Miller
during the period they were denied reinstatement. Id.
For all of the foregoing reasons, we adopt the judge’s
finding that the Respondent violated Section 8(a)(3) and

5 Backpay for this violation shall commence as of September 19,
when the strikers, through their union, unconditionally offered to return
to work. See Teamsters Local 574, 259 NLRB at 344.
(1) of the Act by failing to immediately reinstate Williams
and Miller upon their unconditional offer to return to
work.5
ORDER
The National Labor Relations Board orders that the Re-
spondent, Alaris Health at Harborview, Jersey City, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with 1199, SEIU United
Healthcare Workers East (the Union) because of the com-
position of the Union’s bargaining committee.
(b) Refusing to bargain collectively with the Union by
refusing to provide and unreasonably delaying in provid-
ing it with requested information that is relevant and nec-
essary to the Union’s performance of its functions as the
collective-bargaining representative of the Respondent’s
unit employees, including health insurance and daily work
schedule information.
(c) Threatening employees with job loss if they go on
strike.
(d) Failing and refusing to immediately reinstate em-
ployees who engage in an unfair labor practice strike upon
their unconditional offer to return to work.
(e) In any like or related manner interfering with, re-
straining, 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) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
[A]ll CNAs, dietary, housekeeping, recreational aides,
LPNs, and all other employees excluding professional
employees, registered nurses, confidential [employees],
office clerical employees, cooks, supervisors, watchmen
and guards.
(b) Furnish to the Union in a timely manner the infor-
mation it requested concerning health insurance and daily
work schedules.
(c) Make Ingrid Williams and Kyria Miller whole for
any loss of earnings and other benefits suffered as a result
of the discrimination against them in the manner set forth
in the remedy section of the judge’s decision as amended
in this decision, plus reasonable search-for-work and in-
terim employment expenses.
ALARIS HEALTH AT HARBORVIEW 3
(d) Compensate Ingrid Williams and Kyria Miller for
the adverse tax consequences, if any, of receiving lump-
sum backpay awards, and file with the Regional Director
for Region 22, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years for each employee.
(e) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful failure to im-
mediately reinstate Ingrid Williams and Kyria Miller upon
their unconditional offer to return to work, and within 3
days thereafter notify them in writing that this has been
done and that the failure to immediately reinstate them
will not be used against them in any way.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, 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, neces-
sary to analyze the amount of back pay 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 at-
tached notice marked “Appendix”6 in both English and
Spanish. 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. In addition to phys-
ical posting of paper notices, the notices shall be distrib-
uted electronically, such as by email, posting on an intra-
net or internet site, and/or other electronic means, if the
Respondent customarily communicates with its employ-
ees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. If the Respondent
has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since March 27, 2014.
(h) Within 21 days after service by the Region, file with
the Regional Director for Region 22 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
Dated, Washington, D.C. December 21, 2018
_________________________________________
John F. Ring, Chairman
_________________________________________
Lauren McFerran, Member
_________________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT refuse to bargain with 1199, SEIU United
Healthcare Workers East (the Union) because of the com-
position of its bargaining committee.
WE WILL NOT refuse to bargain collectively with the Un-
ion by refusing to provide or unreasonably delaying in
providing it with requested information that is relevant
and necessary to the Union’s performance of its functions
as the collective-bargaining representative of our unit em-
ployees, including health insurance and daily work sched-
ule information.
WE WILL NOT threaten you with job loss if you go on
strike.
WE WILL NOT fail and refuse to immediately reinstate
employees who engage in an unfair labor practice strike
upon their unconditional offer to return to work.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement:
[A]ll CNAs, dietary, housekeeping, recreational aides,
LPNs, and all other employees excluding professional
employees, registered nurses, confidential [employees],
office clerical employees, cooks, supervisors, watchmen
and guards.
WE WILL furnish to the Union in a timely manner the
information it requested concerning health insurance and
daily work schedules.
WE WILL make Ingrid Williams and Kyria Miller whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, less any net in-
terim earnings, plus interest, plus reasonable search-for-
work and interim employment expenses.
WE WILL compensate Ingrid Williams and Kyria Miller
for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and WE WILL file with the Re-
gional Director for Region 22, within 21 days of the date
the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to the
appropriate calendar years for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful failure to immediately reinstate Ingrid Williams and
Kyria Miller upon their unconditional offer to return to
work, and WE WILL, within 3 days thereafter, notify them
in writing that this has been done and that the failure to
immediately reinstate them will not be used against them
in any way.
ALARIS HEALTH AT HARBORVIEW
The Board’s decision can be found at
https://www.nlrb.gov/case/22-CA-125023 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Rela-
tions Board, 1015 Half Street, S.E., Washington, D.C. 20570,
or by calling (202) 273-1940.

1 Unless otherwise indicated, all dates refer to 2014.
2 29 U.S.C. §§ 151–169.
3 The complaint was amended to modify pars. 23, 24, 25 and 31. (GC
Exh. 101(w)). In addition, the General Counsel subsequently withdrew
complaint pars. 28, 29 and 32, and modified par. 30 to remove reference
Saulo Santiago, Michael P. Silverstein, and Eric B. Sposito,
Esqs., for the General Counsel.
David F. Jasinski and Rebecca D. Winkelstein, Esqs. (Jasinski,
P.C.), of Newark, New Jersey, for the Respondent.
William S. Massey and Patrick J. Walsh, Esqs. (Gladstein, Reif
& Meginniss, LLP), of New York, New York,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This proceed-
ing was one of four cases tried ad seriatim involving Alaris
Health’s New Jersey nursing homes and their unionized employ-
ees. Heard in Newark, New Jersey, on July 29 through 31, 2015,
the case addressed complaint allegations that Alaris Health at
Harborview (Harborview or Respondent), committed numerous
unfair labor practices relating to 20141 bargaining for a new con-
tract: (1) violated Section 8(a)(5) and (1) of the National Labor
Relations Act (the Act)2 by refusing to meet with the Union’s
chosen bargaining committee and then delaying and refusing to
provide information requested by the Union which was relevant
to bargaining; (2) violated Section 8(a)(1) by attempting to stifle
employee participation in a likely strike through threats of job
loss; and (3)
violated Section 8(a)(3) and (1) by refusing to reinstate two
employee strikers after they unconditionally offered to return to
work.3
Harborview contends that the Charging Party, Service Em-
ployees International Union 1199 (the Union), is bogged down
on past history in negotiating for successor contracts and en-
gaged in a series of acts designed to “set up” Harborview for
unfair labor practice charges, which it denies, and then used
those charges to mask an economic strike at Harborview and the
other three Alaris facilities as an unfair labor practice strike.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel, the Union, and Harborview,4 I make the
following
to par. 28 alleging that Harborview’s unilateral discontinuation of the
Union dues check-off.
4 Notwithstanding my instruction that counsel submit one “omnibus”
brief addressing all four cases, the General Counsel submitted separate
briefs for each case. All four Respondents moved to strike the General
ALARIS HEALTH AT HARBORVIEW 5
FINDINGS OF FACT
I. JURISDICTION
Harborview, a corporation, operates a nursing home and reha-
bilitation center providing in-patient medical care at its facility
in Jersey City, New Jersey, where it annually derives gross rev-
enues in excess of $100,000 and purchases and receives goods
valued in excess of $5000 directly from points outside the State
of New Jersey. Harborview admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, as well as a health care institution within
the meaning of Section 2(14) of the Act, and the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Parties
At the relevant times in this complaint, Harborview’s supervi-
sors and agents included: Kevin Woodard, the administrator;
Gerry Mijares, the director of nursing; Mariae Lapus, the assis-
tant director of nursing; and Julian Duran, the food service direc-
tor. David Jasinski, Esq., has served as Castle Hill’s labor coun-
sel and chief negotiator during collective bargaining, accompa-
nied by Mendy Gold, an Alaris principal.5
Harborview and its predecessors have recognized the Union
as the exclusive collective-bargaining representative of approxi-
mately 110 employees in successive collective-bargaining agree-
ments, the most recent of which was effective from April 1,
2010, to March 31, 2014:
All CNAs, dietary, housekeeping, recreational aides, LPNs,
and all other employees excluding professional employees,
registered nurses, confidential [employees], office clerical em-
ployees, cooks, supervisors, watchmen and guards.6
The Union’s leadership includes: Milly Silva, the executive
vice president; Clauvice Saint Hilaire, the vice president; and
Ron McCalla and Christina Ozual, union organizers. During col-
lective bargaining, the Union’s chief negotiator was William
Massey, Esq., assisted by McCalla. Pursuant to the expiring
agreement,7 the Union designated the following six Harborview
employees as members of the bargaining committee: Denise
Bowden, Gwyneth Russell, Cassandra Willis, Ella Moton, Ro-
meo Rodriguez and Renee Jordan.8
Notwithstanding an employee strike in 2009 during negotia-
tions over the 2010–2014 agreement, the parties enjoy a

Counsel’s briefs. I decided against such an extreme measure but, in order
to ensure that there was no prejudice to Respondents, I permitted them
to submit supplemental briefs in each case. Harborview declined the op-
tion.
5 Harborview admitted only that Woodard was a Sec. 2(11) supervi-
sor. However, the undisputed facts established that Mijares and Lapus
were also statutory supervisors, while Jasinski acted as an agent within
the meaning of Sec. 2(13).
6 GC Exh. 108.
7 Section 17 of the agreement, entitled “Negotiations,” stated that the
“Union negotiating committee, not to exceed six (6) Employees, shall
be paid for up to three (3) negotiating sessions, by the Employer, at
straight time rates, for all lost time from work.”
8 R. Exh. 104.
9 McCalla knew that none of the Alaris facilities maintained 401(k)
plans at the time of the previous negotiations but credibly explained that
relationship that both describe as respectful. The parties began
meeting shortly before the 2010 contracts expired for Har-
borview, Alaris at Castle Hill, Alaris at Rochelle Park and Alaris
at Boulevard East. However, controversy soon erupted over the
composition of the Union’s bargaining committee and infor-
mation requested by the Union.
B. The Union’s Information Requests
1. The December 27, 2013 request
Saint Hilaire initiated the process for a new contract in a letter,
dated December 27, 2013. He requested that Harborview engage
in bargaining and offered alternative dates in February. He also
requested that Harborview furnish the Union with the following
information by January 24: detailed job descriptions and perfor-
mance evaluations describing job duties for bargaining unit po-
sitions; summary plan descriptions and related costs of available
fringe benefits such as health insurance, disability, pension,
profit sharing and 401(k) plans;9 numbers of employees covered
by health insurance and related costs; temporary staffing agen-
cies used and related costs; work schedules for each nursing unit
from January to October 2013; OSHA injury and illness records
for 2011–2013; health and safety policies; overtime work poli-
cies, shift differentials, and premium pay; gross annual payroll
information; cost reports submitted to Medicaid; and any other
documents describing any terms and conditions of employment
for unit members.10
Jasinski had several conversations with McCalla and Massey
in January about dates to commence collective bargaining. He
apprised them several times that he would be engaged in a
lengthy trial in Atlantic City, New Jersey, during portions of Jan-
uary and February. The trial eventually started on February 9 and
lasted until March 22. Rebecca Winklestein, Esq., Jasinski’s co-
counsel in this proceeding, served a similar role in that case.
At some point during those discussions, Jasinski suggested a
brief contract extension, but did not request an extension of time
to respond to the Union’s December 27 information request.11
Neither Massey nor McCalla accepted that offer. McCalla did,
however, express the Union’s preference to bundle all four con-
tracts together during collective bargaining, echoing the Union’s
position during the 2007 negotiations. Consistent with his re-
sponse in 2007, Jasinski refused, insisting there was a separate
contract for each facility and each should be negotiated
it was a standard request that was made in the event that one was created
during the term of the expired agreement. (Tr. 155.)
10 GC Exh. 109.
11 There is no dispute regarding Jasinski’s assertion regarding his past
practice of providing a response to the Union’s information requests on
the first day of negotiations. (Tr. 2152–2154.) Moreover, his testimony
that he told McCalla in January and Massey in February that he would
not have an opportunity to delve into the December 27 information re-
quest was also undisputed. However, in light of Massey’s March 13th
email demanding a response to the information request, it is clear that the
Union never consented to delayed document production until March 27.
(Tr. 1994–1995; GC Exh.7; R. Exh. 104.) It is also likely that Jasinski,
an experienced labor litigator who defended against the Union’s unfair
labor practice charges resulting from previous contract negotiations,
would have mentioned such an agreement or understanding in subse-
quent written communications.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
separately. He proposed bargaining dates of either March 27 or
31.12
In a letter, dated February 21, McCalla responded to Jasinski
by agreeing to meet on either day and break out negotiations into
separate bargaining sessions for each facility. However, he also
proposed to have an initial session with the bargaining commit-
tees for all four facilities present in order for union officials to
open with their remarks:
In our discussions concerning bargaining dates you said you
have possible availability on March 27 and definite availability
on March 31. We request that we use one of those dates to
begin bargaining at Alaris Health at Boulevard East, Alaris
Health at Castle Hill, Alaris Health at Harbor View, and Alaris
Health at Rochelle Park. If we need to move the bargaining ses-
sion for a different facility tentatively scheduled for the 31st, so
be it. As you know the four Alaris contracts expire on the
March 31, 2014 and we’ve yet to receive any response to infor-
mation requests sent to the facilities on December 27, 2013.
We believe it’s important to start bargaining before the con-
tracts expire as it’s our desire to reach contract settlements in
these facilities as quickly as possible.
While we understand the employer’s position on separate bar-
gaining tables for each facility and our agreement to hold four
separate meetings on the first day of bargaining we believe it
would be advisable to add a fifth initial session with all facili-
ties and bargaining committees present to give our union leader
Milly Silva and counsel Bill Massey an opportunity to address
the proceedings before we break into separate sessions. This
would obviously be an opportunity for management represent-
atives to speak directly with the employees and Union officials.
Please let us know which of these dates would be your prefer-
ence.13
In a letter, dated February 26, Jasinski confirmed the proposed
bargaining dates and agreed to the proposal to have Silva and
Massey open with remarks, but insisted they make them at the
beginning of each bargaining session for each of the facilities.
He also renewed his request for a 90-day contract extension, but
made no mention of the December 27 information request:
We are in receipt of your letter identifying a number of facili-
ties whose contracts expire on March 31, 2014. A brief re-
sponse is warranted.
Each identified facility is a separate and independent operation
with its own collective bargaining agreement covering employ-
ees for that particular facility. They maintain separation opera-
tions, including all necessary staff. Each facility is unique and
the bargaining history at each facility recognizes its independ-
ence.

12 Massey conceded that it was Jasinski’s longstanding position to ne-
gotiate each contract separately, but noted that there were occasions prior
to 2014 when the employer agreed to bargain two to four facilities at
different times on the same day. (Tr. 926–928.) Jasinski conceded that in
2010 all four contracts were essentially bargained at the same time in the
final bargaining session based on an off-the-record meeting involving
delegates from all four facilities. (Tr. 1509–1510.)
In light of these undisputed facts, we will adhere to our prior
practice and not agree to joint bargaining. Of course, Milly
Silva and Bill Massey may present the Union’s respective po-
sitions for each facility at each bargaining session and, quite
candidly, we welcome their attendance.
We are available and confirm the March 27 and 31 dates for
each facility. Please notify me of the times to commence nego-
tiations for each facility. In scheduling for these sessions, we
request notification of the members of the bargaining commit-
tee who will be attending. We request these names at least two
(2) weeks in advance to avoid any disruption in our staffing.
Bargaining sessions, as in our prior negotiations, will take place
at the Union's offices in Edison.
Finally, in a spirit of good faith and cooperation, as discussed,
we will agree to the extension of each collective bargaining
agreement for an additional ninety (90) days. This additional
time will afford all parties the opportunity to formulate its bar-
gaining positions and engage in give-and-take at the bargaining
table in an effort to reach an amicable agreement that balances
the needs of all parties. Should the Union wish to jumpstart the
negotiations and submit its initial proposals to us prior to the
initial bargaining session, we will accept and review each pro-
posal. Thank you.14
On March 13, McCalla emailed Jasinski to inform him that
each of the four Alaris facilities would receive releases for bar-
gaining committee members that day by fax and certified mail.
Massey followed up with an email later that day regarding the
commencement of bargaining and the outstanding information
requests:
This is to follow up on Ron’s correspondence below concern-
ing the start of bargaining with the four Alaris facilities. As you
are likely aware, on December 27, 2013, the Union, via Vice-
President Clauvice St. Hilaire, served information requests on
the four Alaris facilities, copies of which are attached hereto for
your convenience. Clauvice requested that the sought after doc-
uments be produced to the Union by January 24, 2014. We are
now in March, only a couple of weeks away from sitting down
to start negotiations, and I understand that none of the four fa-
cilities has produced even a single document to the Union. Sim-
ilarly, I am advised that the facilities have not requested an ex-
tension of time nor an explanation for the delay in producing
these documents, which are relevant and necessary for bargain-
ing. Please have the four facilities produce the requested infor-
mation as soon as possible, but no later than March 18, 2014.
Please advise your clients to supply information as it becomes
available rather than waiting to assemble all the information re-
quested. Thank you for your attention to this matter. Best
13 Jasinski’s testimony regarding assurances by McCalla about nego-
tiating the contracts separately is consistent with McCalla’s documented
agreement to do that— subject to an opening statement by Silva at the
beginning of negotiations. The assurances of separate bargaining, how-
ever, made no mention of the composition of Harborview’s bargaining
committee. (GC Exh. 5; Tr. 869, 1426–1427.)
14 GC Exh. 6.
ALARIS HEALTH AT HARBORVIEW 7
regards.15
2. The March 14th information request
In a letter, dated March 14, Massey followed up on his email
to Jasinski from the day before, insisting on a response to the
December 27, 2013 information request by March 18. In addi-
tion, Massey made a supplemental request for the most current
payroll roster, daily schedules from January to December 2013
(to the extent not already covered by the previous request), actu-
arial plan values, and specific health insurance plan documents.
The health insurance documents sought included any relating to
summary plan descriptions, costs, terms of coverage, census data
reflecting plans selected by employees, actuarial and utilization
plan values, and requests for proposals and financial impact re-
lated information.16
3. The March 27 bargaining session
On March 27, Jasinski arrived at 11 a.m. for the first bargain-
ing session at the Union’s offices in Iselin, New Jersey. Massey,
McCalla, Saint Hilaire, Silva and Ozual were present, accompa-
nied by approximately 20-25 employee delegates from the four
facilities. Two days were set aside for bargaining. Bargaining
was to start with the Castle Hill contract and be followed by ne-
gotiations over the Harborview, Boulevard East, and Rochelle
Park contracts.
After waiting about an hour for Gold to arrive, Jasinski agreed
to start the Castle Hill negotiations. Milly Silva and Massey
opened with brief opening remarks. After reviewing the sign-in
sheet, Jasinski protested the presence of employee-members
from Harborview, Boulevard East and Rochelle Park. He pro-
claimed Castle Hill’s readiness to commence Castle Hill negoti-
ations, but noted each contract was different and the parties had
not previously engaged in joint bargaining. Massey replied that
the Union was entitled to bargain with a team of its choosing.
Jasinski disagreed, accused the Union of playing games and was
prepared to leave if employees from the other three facilities did
not leave. Massey asked him to reconsider and reiterated that the
Union was entitled to pick its own bargaining team. At that point,
Jasinski provided a packet of information relating to Castle Hill’s
December 27 information request and retreated to a caucusing
room.17
Shortly thereafter, Massey and McCalla went to speak with
Jasinski. They asked him to relent, but neither side budged over
the composition of the Union’s bargaining committee. That con-
versation ended when Gold arrived and Jasinski asked to confer
with his client. A few minutes later, Jasinski and Gold returned
to the negotiation room. After confirming the Union’s continued

15 Jasinski’s testimony established that he never had an agreement
from the Union for an extension of time to respond to the December 27
information request. When asked on direct examination about that re-
quest, Jasinski simply lumped that issue in with his interest in a contract
extension. (Tr. 1416–1418.) Massey had no recollection of any such con-
versation, but “could appreciate . . . that it would be difficult to do lots
of other work while [Jasinski was] on trial.” (Tr. 930–931.) Nevertheless,
while corresponding during that time over the logistics and dates for bar-
gaining, Jasinski simply ignored Massey’s March 13th reminder to pro-
vide the information in advance of the March 27 bargaining session. (Tr.
926, 929–930, 1416–1418; GC Exh. 7.)
position regarding the composition of the bargaining committee,
Jasinski said that they would leave. At no point during this meet-
ing did Jasinski assert confidentiality concerns as a reason for
excluding employees from the other Alaris facilities during Cas-
tle Hill bargaining sessions.
The parties then discussed future dates for bargaining and
Jasinski provided Massey with packets responsive to the Decem-
ber 27 information requests by Harborview, Boulevard East, and
Rochelle Park. The cover letter in each packet conveyed Jasin-
ski’s view that the Union previously requested the information:
Enclosed please find a copy of the requested information. As
you will see, much of the information was already in the posi-
tion of the Union and available to the Union via its members.
We are glad to provide you with another copy. Should you have
any additional questions or require additional information,
please advise.18
Before Jasinski and Gold left, the Union did not submit a pro-
posal.19 Silva did, however, ask about rumors that Boulevard
East would be demolished to make way for apartment building
development. Jasinski replied that the Boulevard East question
did not apply to the Castle Hill negotiation, while Gold said that
there was nothing to report. Jasinski said he would get back to
them about Boulevard East. Shortly thereafter, Jasinski and Gold
left and did not return in order to commence bargaining over
Harborview, Boulevard East and Rochelle Park.
In a letter, dated April 1, Jasinski proposed dates for the re-
sumption of bargaining for the Harborview contract:
After the abbreviated March 27th bargaining session, I want to
reiterate that we are available to meet on April 1st, 2nd and 3rd
to continue negotiations for the referenced facility. We under-
stand that the Union did not believe it was prudent to meet on
any of those dates since it needed additional time to review in-
formation. In light of the upcoming religious holidays, we con-
firmed that we are available on April 28th and 29th, and also
offered April 30th and May 1st to meet on any one of those
dates for this facility. We believe that it is best to dedicate one
of these days for this facility only and not piggyback any other
negotiations for the designated dates. The employees deserve
our undivided attention. Unfortunately, despite our admitted
avai1ability, the Union has not confirmed any of those dates at
this time.
If the Union is interested in meeting to continue negotiations at
this facility, we ask that you confirm one of those dates for this
facility. In addition, if you are interested in moving the
16 This request refined the previous request for monthly work sched-
ules from one that sought daily work schedules. (GC Exh. 8.)
17 I credit Jasinski’s undisputed testimony that some delegates in at-
tendances made side remarks, sneered, and laughed, but not his conclu-
sion that their conduct made it “not conducive to bargaining.” If that were
true, Jasinski, an experienced labor litigator, would have raised that as a
concern. He made no mention of their conduct as he walked out. (Tr.
80–83, 870–872, 1432–1434.)
18 GC Exh. 110.
19 Harborview notes the discrepancy in testimony between Massey
and Saint Hilaire as to whether the Union was prepared to issue its pro-
posals if the bargaining sessions had gone forward. (Tr. 938, 1059.)
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
negotiations forward, if we receive your written proposal prior
to our next session, it will give us the ability to review it and
prepare a response and to continue good faith bargaining.
Finally, we again express our willingness to extend the current
collective bargaining agreement for an additional period of
time to afford the parties the opportunity to continue negotia-
tions in good faith, and seek to reach an amicable resolution
that balances the needs of your members with the facility and
the care for our residents. Thank you.20
In his reply later that day, McCalla documented the parties’
March 27 meeting, disagreed with the four facilities’ “refusal to
hold bargaining sessions for more than one facility per day “ as
“unreasonable and a poor use of the time and resources of all
parties.” Notwithstanding Jasinski’s position, McCalla proposed
to commence separate bargaining dates for each facility as fol-
lows: Castle Hill on April 28; Boulevard East on April 29; Ro-
chelle Park on May 1; and Harborview on May 2:
As discussed on March 27, we reiterate that your clients' refusal
to hold bargaining sessions for more than one facility per day
is unreasonable and a poor use of the time and resources of all
parties. That said, assuming the Employers have not reconsid-
ered on this issue, the Union confirms our agreement from last
week to bargain on April 28 and April 29, we accept your offer
to bargain, on May 1, and we offer May 2 for a fourth session.
We propose the following sequence:21
4. The Union’s followup request
In a letter to Jasinski, dated April 9, Massey expressed concern
over Harborview’s failure to provide the Union with the infor-
mation described in items 10, 11, and 12 of the December 27
request, and items 2, 3(b), (c), and (e) through (1) of the March
14 request. In addition, Massey noted that the responses to items
14 and 15 of the December 27 request and item 3(a) of the March
14 request were incomplete. He asked for the outstanding infor-
mation to be provided by April 15.22
On April 21, Jasinski responded by reminding Massey that
“each facility is separate and we provided separate information
for each facility. In the future, we request that any inquiry be
addressed for the individual facility.” In response to items 10 and
11, Jasinski stated that there were no documents because the fa-
cility had not used agency personnel to perform bargaining unit
work. Item 12 was noted to be voluminous and Jasinski proposed
that the Union “accept a representative sample of work sched-
ule[s] for a limited period of time.” As to items 13 and 14, Jasin-
ski referred Massey to the employee handbook.23 In a separate
letter dated the same day, Jasinski responded to the Union’s
March 14 supplemental request by noting that items 1 and 3 were

20 GC Exh. 111.
21 GC Exh. 11.
22 GC Exh. 21.
23 GC Exh. 112.
24 GC Exh. 113.
25 GC Exh. 44.
26 The Union does not dispute that, notwithstanding Harborview’s
failure or refusal to provide necessary information requested on
previously provided, while item 2 was burdensome and unnec-
essary. Jasinski requested the Union to refine it to one not as
overbroad.24
5. The May 7 bargaining session
The parties subsequently agreed to resume the Harborview
contract negotiations on May 7. Prior to that session, the Union
undertook a propaganda blitz in a flier distributed to the employ-
ees at the four facilities:
At our first bargaining session on Thursday, March 27th, we
came prepared to bargain with management at each of our four
facilities. But management refused to sit face to face with our
full bargaining team to discuss their proposals. They want to
divide us and weaken us, but we won't let that happen! We
won't wait years for a new contract! For more information, con-
tact your organizer, Christina Ozual at [xxx-xxx-xxxx]. The
next negotiations are scheduled for Monday, 4/28 and Tuesday,
4/29. Let's all be ready to stand strong and speak with one
voice!25
At the May 7 bargaining session, Jasinski and Gold met with
Massey, McCalla, Silva, Saint Hilaire the six bargaining com-
mittee members from Harborview. This time, there was no con-
troversy regarding the composition of the Union’s bargaining
team. Massey gave Jasinski the Union’s written proposals, but
reminded him that the Union was still waiting for the CNA work
schedules and health insurance related information. In response
to Jasinski’s letter asserting the 12-month request was burden-
some, Massey agreed to accept 3 months of daily work sched-
ules. With respect to health insurance, Jasinski said he would get
back to the Union.26
6. The employee schedules
In a letter, dated May 14, Jasinski furnished Massey with the
monthly staffing schedules at Harborview for each floor for all
shifts from January 26 to May 17. The monthly schedules re-
flected projected CNAs’ work schedules and floor assign-
ments.27 On May 21, Jasinski responded to Massey’s additional
information request:
In response to your additional information request, we have
provided you with all relevant information. Most recently, we
supplemented our initial response with schedules for this Facil-
ity. The additional information which you have requested is
simply without merit. You are well aware of this fact, since
similar information was requested when the SEIU responded
that the information was not available, since it would be a vio-
lation of HIPAA.28
It is disconcerting that the Union now requests information
which it has previously been unable or refused to provide in
December 27 and March 14, it was still able to submit a proposal. (GC
Exh. 131; Tr. 2098–2099, 2107–2108, 2115–2116.)
27 GC Exh. 114.
28 During the hearing, Jasinski sought to undermine the Union’s need
for health insurance information based on the lack of health or safety-
related grievances filed and focused on several CBA provisions: Sec. 8
(grievance and arbitration procedure); and Sec. 29(c) (Health and Safety
Committee whose purpose “shall be to identify and recommend preven-
tative measures where appropriate”).
ALARIS HEALTH AT HARBORVIEW 9
negotiations. It was either an oversight or, worse, disingenuous,
to make these requests.
We are prepared to continue to negotiate a collective bargain-
ing agreement that balances the interests of our employees and
your members with those of the Facility. Should you have any
other questions, please advise.29
The parties met again for bargaining on June 2. Massey again
opened with a statement that the information provided in re-
sponse to the Union’s request was not satisfactory because it
lacked requested health insurance information and consisted of
projected monthly schedules instead of work schedules reflect-
ing actual work performed by CNAs. Jasinski insisted that the
monthly schedules were sufficient and Massey explained the rel-
evance of the more accurate daily work schedules, which reflect
the days and shifts actually worked.30 After engaging in bargain-
ing, Jasinski provided and explained Harborview’s counterpro-
posals.31
7. The July 9 bargaining session
At the July 9 bargaining session, McCalla served as the Un-
ion’s chief spokesperson, as Massey was unable to attend. The
session opened, as usual, with the Union’s request for daily work
schedules and health insurance information needed for bargain-
ing. Once again, Jasinski disagreed, insisting the Union already
had the information and did not need anything further. During
the bargaining that ensued, Jasinski dismissed the Union’s staff-
ing proposals because Harborview was in compliance with State
guidelines. McCalla took issue with that view, asserting that
State guidelines took several factors into account.32 The parties
then engaged in bargaining, with Jasinski providing Har-
borview’s latest contract proposals.33
On July 30, Jasinski replied to the Union’s continuing request
for health plan information and employees’ daily schedules:
We want to be clear and avoid any misunderstanding regarding
your multiple information requests. The Employer has been
fully responsive. The latest request purportedly asked for sup-
plemental information for the Employer's health plan which
was nothing more than harassment, grounded in bad faith, and
not intended to facilitate contract negotiations. It is intended to
only stall negotiations. We are not about to allow that to hap-
pen. At the negotiations, we informed you that the Employer is
not in possession of such information and/or the Union is re-
questing confidential information. We reiterated, at the bar-
gaining table, it is irrelevant, unnecessary and not intended to
facilitate contract negotiations.
In addition, the Union requested information concerning work
schedules at this facility. We provided the Union with the mas-
ter list which represents our work schedules. This is the only
relevant information, and it was provided.

29 GC Exh. 115.
30 GC Exh. 105–106.
31 GC Exh. 131.
32 It is undisputed that Harborview is subject to New Jersey State re-
quirements for minimum staffing and resident ratios. (R. Exh. 13.)
33 R. Exh. 105(b).
34 GC Exh. 116.
As stated across the bargaining table, the Employer will neither
waive nor modify its rights as set forth in the Managements
Rights clause of the collective bargaining agreement. Staffing
has historically been a right reserved to this administration, and
we will not give-up in this contract negotiation our unilateral
right to determine staffing at this Facility. We will reject any
Union proposal that modifies our rights concerning staffing
levels on the units and the way we staff this Facility. That is our
final position and we will not deviate from it.
Once again, we suggest the Union focus on the negotiation of
a new collective bargaining agreement for our employees. We
are puzzled with the Union's refusal to meet or provide, dates
for parties to bargain in good faith. We reiterate our request for
new dates to continue to negotiate.34
8. The August 25 bargaining session
The parties next met for bargaining on August 25. Massey re-
iterated the Union’s need for the outstanding daily work sched-
ules and health insurance information for bargaining. Jasinski
did not respond to that inquiry and the parties engaged in bar-
gaining.35
C. Employees Prepare for a Possible Strike
Beginning in March, Ozual or Saint Hilaire met periodically
with employees in the first-floor break room. They provided em-
ployees with contract education, bargaining updates, and listened
to complaints. The bargaining updates included the significant
issues involving in bargaining such as health insurance coverage,
pension plan funding, staffing, and the rumored demolition of
Boulevard East. Ozual and Saint Hilaire also informed employ-
ees about Harborview’s refusal to meet with the Union’s bar-
gaining committee on March 27 and its refusal to provide re-
quested information.36
By May, the Union recommended that employees step up the
pressure on the four Alaris facilities. In late May and June, sev-
eral Harborview employees participated in informational picket-
ing. Some signs contained messages which read “1199 Stop Un-
fair Labor Practices!” Other signs mentioned the need for af-
fordable healthcare insurance, pension and wage increases and a
fair contract.37
Thereafter, the Union gradually increased the public pressure.
In July, the Union’s New Jersey communications coordinator,
Bryn Loyd-Bollard, created “Alarisk.com”, a website devoted to
the Union’s bargaining campaign against the four Alaris facili-
ties. The website’s home page included a news alert providing
the economic motives behind a potential strike:
NEWS ALERT: HUNDREDS OF HEALTHCARE
WORKERS STRIKE AFTER CONTRACT TALKS SOUR.
Don't put your health at alarisk.
Stand up for quality care and goodjobs in nursing home.
35 GC Exh. 131 at 22.
36 It is undisputed that Ozual, accompanied occasionally by Saint
Hilaire, followed a similar practice of updating employees, as well as
receiving their complaints, at each of the four Alaris facilities. (Tr. 1158–
1187, 1206-1207.)
37 GC Exhs. 19.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Stand with nursing home residents, families and caregivers and
tell the owners of Alaris Health (formerly Omni Health
Systems) to settle afar contract that protects patients and work-
ers.
Despite making $41 million in profit in 2012, many Alaris
nursing homes suffer from substandard staffing levels while
hardworking caregivers live in poverty. The overwhelming
majority of Alaris nursing home employees earn less than
$25,000 a year, and some have to rely on public assistancejust
to make ends meet.
Our communities depend on skilled caregivers to provide
for our loved ones in their times of need. They deserve better.
We deserve better.38
On July 23, Silva convened a press conference in Jersey City
near Alaris’ corporate headquarters. There were elected officials
and approximately 10 employees from Alaris facilities in attend-
ance. In prepared remarks that followed, Silva excoriated Alaris
for a mélange of reasons as justification for a possible future
strike, including unfair labor practices and regressive economic
proposals.
We are here today because Alaris Health, the multimillion dol-
lar for-profit nursing chain based here in Journal Square, is
showing a callous disregard for the wellbeing of the communi-
ties in which they operate.
The owners of Alaris are violating the rights of its employees,
they are raking in huge profits while maintaining substandard
staffing levels, and they are planning to demolish one of their
long-term care facilities without being forthright to the nursing
home’s residents or caregivers about their plans. We are here
to demand that Alaris start acting responsibly.
The women and men standing beside me play a critical role as
caregivers to some of the most vulnerable people in our com-
munities. It is essential that their rights and dignity as workers
be upheld, because there is a connection between the quality of
life of caregivers and the quality of care for patients.
It is of grave concern to us that Alaris has committed numerous
unfair labor practices and continues to act in the same disre-
spectful and illegal manner as they did five years back, when
they operated under the name Omni Health Systems. We do
not want a repeat of 2009, when hundreds of nursing home
workers had no choice but to go on strike in order to protect
standards for good jobs and quality patient care. Omni may
have changed their name to Alaris, but it seems that they have-
n't changed their ways.
After nearly four months and 16 bargaining sessions, 450 care-
givers at four Alaris Health nursing homes are still working un-
der expired contracts. All they are asking for are the basics to
make ends meet—something that must be insisted upon for
every healthcare worker who, as a fundamental requirement of
her job, needs to remain physically and mentally healthy.
Yet instead of moving forward, Alaris wants to further erode
job standards in nursing homes. They’re asking low-wage

38 GC Exh. 48.
39 GC Exh. 57.
workers, who earn less than $23,000 a year full-time, to pay
even more for health insurance and to reduce critical benefits
including sick leave. Many workers already have no choice but
to enroll in public assistance just to get their children the
healthcare they need, and the concessions that Alaris is seeking
will only make the situation worse.
We will not let vital healthcare jobs suffer so that Alaris, which
makes $40 million in profit a year, can walk away with even
more.
It is disgraceful that Avery Eisenreich, the principal owner of
Alaris, which receives literally hundreds of millions of dollars
in Medicaid and Medicare funding each year to provide care to
the elderly and vulnerable, decides to pocket millions for him-
self before making sure that the caregivers who work directly
with patients have what they need to get by.
Avery has also failed to address persistent staffing shortages at
these four facilities, each of which have certified nursing assis-
tant staffing levels below both state and national averages. Our
union has proposed a framework for addressing staffing short-
ages, but management has for months failed to provide the un-
ion with requested information on staffing and has refused to
negotiate over this critically important issue.
And in Guttenberg, where Avery Eisenreich owns a facility on
Boulevard East that is home to 100 elderly and frail residents,
he plans to demolish the nursing home in order to build luxury
high-rise apartments. He is not being upfront about what his
plans are, and the nursing home’s residents, their family mem-
bers, and workers have been left in the dark. This is incredibly
disrespectful to everyone who depends on Boulevard East, ei-
ther as a patient or as an employee.
In many ways, Alaris is acting in complete disregard for the
community. We are here today to say that enough is enough.
We do not want to strike. Our members would rather be doing
the job they love and caring for their residents instead of walk-
ing the picket line. But they are ready to strike if they have to,
to protect quality care and good jobs.
I’d like to introduce you to a few members of 1199, who work
at Alaris nursing homes in Hudson and Bergen counties. They
have been working very hard these past months to win a con-
tract that respects their dignity as caregivers and as providers
for their own families.39
Jasinski knew about the Union’s July 23 press conference and
discussed that event with Alaris corporate officials.40
D. Unit Employees Decide to Strike
On August 27, Massey, Silva, McCall, Ozual, and Saint
Hilaire met at the Union’s office in Iselin, New Jersey, with ten
employee delegates from Harborview, Boulevard East and Ro-
chelle Park. Another six employees from Castle Hill participated
by telephone. Denise Bowden, Cassandra Willis and Rene Jor-
dan were the delegates from Harborview.
The union officials met with the employees for about 1-1/2
40 Jasinski conceded that Alaris officials were provided with the de-
tails. (Tr. 1536–1538.)
ALARIS HEALTH AT HARBORVIEW 11
hours. McCalla laid out a case for a strike based on the Union’s
inability to make significant headway in negotiations and the
wide gap between proposals. Massey followed with a recitation
of the unfair labor practice charges filed for the four facilities and
the complaints that he expected to be filed. He also provided an
explanation of the difference between an economic strike and a
strike premised on unfair labor practices.
Massey then proposed a resolution setting forth the reasons
for going out on strike. At the conclusion, the employee dele-
gates present voted to deliver ten-day notices to engage in a 3-
day strike. The group discussed and decided who would deliver
the notices along with McCalla. The delegates were also in-
structed to tell the membership that the strike was authorized and
it was motivated by economic and unlawful practice reasons.41
The employees present signed the resolution and the six employ-
ees participating by telephone from Castle Hill voiced approval:
At a meeting of the Alaris Bargaining Committee of 1199
SEIU United Healthcare Workers East (“the Union”), held at
the Unions office in Iselin, NJ on August 27, 2014, upon the
recommendation of Executive Vice President Milly Silva, the
following resolution was considered and adopted by the under-
signed Committee members:
WHEREAS, 1199 SEIU United Healthcare Workers East is
the collective bargaining representative of bargaining unit em-
ployees of Bristol Manor Health Care Center, Castle Hill
Health Care Center, Harborview Healthcare Center and Pali-
sades Nursing Center, all affiliates of Alaris Health (collec-
tively, “the Employer”); and
WHEREAS the Union has bargained in good faith with the
Employer to negotiate a collective bargaining agreement; and
WHEREAS, the Employer has Violated our rights by commit-
ting Unfair Labor Practices, specifically by failing and refusing
to provide information requested by the Union that is needed
for bargaining (especially health insurance and staffing infor-
mation), unduly delaying in providing other information, and
unlawfully interfering with the composition of the Union's bar-
gaining committee and
WHEREAS, Region 22 of the National Labor Relations Board
has informed the Union
that a Complaint against the Employer alleging multiple Unfair
Labor Practices in connection with this unlawful conduct is
forthcoming; and
WHEREAS, the Employer has continued to make unreasona-
ble bargaining demands of the Union and its members; and

41 Art. IV, sec. 7 of the Union’s Constitution gives delegates the “re-
sponsibility of involving their members in all affairs of the Union. Article
V, Section 6(b) states the rights of members ‘[t]o vote on all strike calls
and strike settlements directly affecting the members as employees. Art.
VII, sec. 11(1)(f) states that the’” Regional Delegate Assembly shall
have the power to call strikes in its region, subject to the approval of the
members directly involved and the executive council. (R. 106.)
42 It is undisputed that the strike resolution was not disseminated tothe
entireunion membership for a vote as required by the Union's consti-
tution. (GC Exh. 15.)
43 GC Exh. 117.
WHEREAS the Employer has continued to commit additional
Unfair Labor Practices, including by unlawfully polling and
coercively interrogating Union members, and threatening Un-
ion members with adverse employment consequences for en-
gaging in protected Union activity; and
NOW, THEREFORE, BE IT RESOLVED THAT: the Union
and its members hereby determine to serve the Employer with
the legally required ten-day notice of intent to engage in a rally
and vigil at Castle Hill Healthcare Center on or about Septem-
ber 10, 2014, in response to the Employer's ongoing Unfair La-
bor Practices and unreasonable bargaining position; and
BE IT FURTHER RESOLVED THAT: the Union and its
members hereby determine to serve the Employer with a sub-
sequent legally required ten-day notice of intent to engage in a
strike, for three days at each facility, in response to the Employ-
er's ongoing Unfair Labor Practices and unreasonable bargain-
ing position.42
n a letter, dated August 29, Jasinski decried the Union’s justi-
fication in moving towards a strike, noting that it had been ap-
proximately 2 months since the parties’ last bargaining session.
He referred to his request at the conclusion of their last session
for future bargaining dates, but the Union never proposed any.
At this point, Jasinski suggested the parties resume negotiations
during the weeks of either September 8 or 15. He concluded by
attributing the standoff to the Union’s continuing request for ‘ir-
relevant and unnecessary” information, and the Union’s attempts
to resurrect staffing proposals that were previously resolved.43
On September 5, the Union delivered to Woodard the contrac-
tually required ten-day notice of bargaining unit employees’ in-
tention to go out on strike for 3 days:
Notice is hereby given, pursuant to section 8(g) of the National
Labor Relations Act, that 1199 SEIU United Healthcare Work-
ers East, New Jersey Region and the employees it represents
intend to conduct a strike and picketing at Harborview located
at 178-198 Ogden Ave., Jersey City, NJ 07 306. The strike and
informational picket are to protest the Employer's ongoing Un-
fair labor Practices and the Employer's unreasonable bargain-
ing demands. The strike will commence at 6:00 AM on Tues-
day September 16, 2014 and end at 6:59 AM on Friday Sep-
tember 19, 2014.44
Such action had been submitted to the membership for a vote
in past years, as required by the Union’s constitution.45 In this
instance, unit members were informed of the scheduled strike
and provided with reasons attributing the strike action to Har-
borview’s bargaining posture and unfair labor practices.46
44 GC Exh. 118.
45 Harborview correctly notes that a membership strike vote was not
conducted in accordance with the Union’s constitution. (Tr. 2221, 2229.)
However, the vote of the delegates was subsequently ratified by the
membership’s actions in going on strike and Harborview failed to cite
any CBA or other legal provision supporting the notion that the dele-
gate’s strike vote was null and void or that it even has standing to raise
such a procedural objection. (R. Exh. 106 at 5–7.)
46 There was no testimony by striking Harborview employees as to
whether their participation was motivated by economic considerations or
Harborview’s alleged unfair labor practices. Kyria Miller did testify,
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On the same day, Jasinski emailed Massey, questioning the
Union’s motives and cancelling proposed bargaining dates in
September in order for his clients to dedicate its “time, effort and
our resources to ensuring the strike contingency plan at each Fa-
cility that received a strike notice is in place and fully opera-
tional.”47
E. Management/Supervisors Statements Prior To The Strike
By early September, the Union began mobilizing employees
for the strike. Saint Hilaire and/or Ozual met with Harborview
employees 2-3 times a week in the break room to rally support
and participation in the strike. Ozual was especially forceful with
employees who were reluctant or undecided about participating
in the strike, insisting that the action was necessary in order to
get raises and better benefits.48
Around this time, employees were handed leaflets by
Woodard and found them included with their paychecks. The
leaflet was represented as the “truth” to refute “the Union’s most
recent lies.” It posited the question of whether an employee could
be replaced if he/she went out on strike. The answer stated that
“Under Federal Law, we have the right to, and will, hire replace-
ments to fill any vacancies in our staffing schedules. In fact, to
meet our responsibilities to provide uninterrupted resident care,
we have begun to take steps to ensure we will have replacement
for all employees who choose to go out on strike and walk away
from their jobs. We do this because of our commitment to our
residents and our Facility. Once a strike is over, you may not be
able to immediately return to your job. That is a fact.49
Around the same time, Harborview CNAs were called into the
break room for meetings with Mijares, the nursing director, and
Lapus, the assistant nursing director. After distributing a docu-
ment, Mijares told the CNAs that they would be neglecting Har-
borview’s residents if they went on strike. She also warned that
employees could lose their jobs if they went on strike. Miller
voiced her disagreement, noting that Rene Jordan, a house-
keeper, participated in the 2009 strike and was still employed.
Lapus responded by reaffirming Mijares’ warning.50
F. Supervisors Observe Employees During Prayer Vigil
On September 10, employees from all four facilities also par-
ticipated in a prayer vigil and rally with Silva and their local State

however, that she decided to strike after being instructed to do so by her
mother. (Tr. 1843.) Williams did not testify as to her motivation for par-
ticipating in the strike but confirmed her prior statement in a Board affi-
davit that Ozual informed employees that the strike was attributable to
the employer’s refusal to bargain in good faith for a new contract.
(Tr.1831.)
47 R. Exh. 8.
48 Harborview called two witnesses who neither attended pre-strike
meetings nor participated in the strike. Kisha Pearson, a recreational aide,
vaguely testified that Ozual talked about “wages and stuff like that” (Tr.
2220.), while Verna Jeffries, a CNA, testified that Ozual told her she
needed “to fight for the contract.” (Tr. 2232.) I found their testimony
vague, selective and ineffective in refuting evidence of the Union’s
standard message to unit members that the strike was caused by both
economic considerations and the employer’s unfair labor practices.
49 GC Exh. 107.
50 This finding is based on Miller’s credible and undisputed testimony.
(Tr. 1844–1848.)
Assemblyman in front of Castle Hill.51 Flyers distributed to em-
ployees at the four facilities prior to the vigil referred to the up-
coming strike relating to the facilities unfair labor practices and
undermining of job standards.52 During the event, Castle Hill ad-
ministrator Maurice Duran stood about ten feet away. He could
be heard saying that their action was a joke, there was nothing to
worry about, it was just bad publicity, and it would not be a prob-
lem to do what he had to do next.53 The Union photographed the
rally/vigil and depicted it in a flyer distributed on September
15.54
G. Alaris Prepares for the Strike
In anticipation of its staffing needs prior to the strike, Har-
borview entered into contracts with four temporary staffing com-
panies. Addenda were attached to the form agreements with Tri-
state Rehab Staffing and Towne Nursing requiring that Har-
borview retain their employees for minimum terms of four and
six weeks, respectively. This was a peculiar development in light
of the Union’s prior notice of a 3-day strike. There was, however,
no written agreement with Staff Blue, while the agreement with
Medistar Personnel, Inc. made no mention of a contract term.55
H. The Strike
Massey did not speak with Jasinski about the strike before-
hand, but sent him an email and voice mail the day before on
September 15. On the same day, Jasinski called McCalla request-
ing he alert employees not to walk off early because it could
leave the facilities understaffed and compromise their licenses.56
On September 16, approximately 25 Harborview employ-
ees/unit members ceased work and engaged in a strike. Over the
next 3 days, the striking employees picketed outside the facil-
ity.57 Their signs demanded Harborview engage in good-faith
bargaining and protested unfair labor practices.
During the 3-day strike, Harborview covered the shifts of the
striking CNAs with 22 temporary employees from the four staff-
ing agencies.58
I. Employees Attempt to Return to Work
On September 18, the last day of the strike, Jasinski informed
Massey that some strikers would not be allowed to return to work
the next day because of the contractual commitments with the
staffing agencies. Massey questioned why the facilities would
51 GC Exh. 35.
52 GC Exh. 44(f).
53 I base the finding regarding the observation of employees on Castle
Hill CNA Leanne Crawford’s credible and undisputed testimony. (Tr.
489-492.) Although his employment role was limited to Castle Hill, Du-
ran conceded that he is engaged to Alaris official Ann Taylor. (Tr. 1584-
1585.)
54 GC Exh. 44(g).
55 I did not credit Jasinski’s vague testimony regarding alleged nego-
tiations by unidentified persons which resulted in Harborview agreeing
to four and 6-week terms. (Tr. 2168–2169; R. Exhs. 11, 107–108.) Linda
Dooley, an Alaris officer who signed the agreements was available, but
did not testify, and the circumstances by which the addenda were added
were not explored. (Tr. 722, 2636.)
56 GC Exh. 28.
57 GC Exh. 19.
58 GC Exhs. 133–136.
ALARIS HEALTH AT HARBORVIEW 13
make such a commitment if employees gave notice of a 3-day
strike. Jasinski explained that the facilities needed to be cautious
in case the employees changed their minds and remained on
strike for a longer period of time. Massey disagreed, noting that
the Union’s history belied such a concern. In an email sent later
that day, Massey, on behalf of all Harborview employees/unit
members who engaged in the strike, made an unconditional offer
to return to their former or substantially equivalent positions of
employment.59
On September 19, employees who participated in the strike
reported to work at Harborview. Miller and other employees who
arrived to work the morning shift were directed to the dining
room. When they arrived, Woodard proceeded to read the names
of employees who were not reinstated and needed to leave. He
read the names of Miller and Williams. Miller left the facility
and reported the development to Ozual and shop steward Romeo
Rodriguez, who were standing outside. At Ozual’s direction, Ro-
driguez entered the facility and asked Woodard why Miller and
Williams were locked out. Woodard merely said that it was for
the good of the facility.60
Williams was not present at that time since she was scheduled
to work until 3 p.m. However, upon learning she was locked out
by a coworker, Williams went to Harborview and spoke with
Woodard. He confirmed Williams had been replaced, but would
let her know if a position opened up.61
Although locked out, Williams still participated in a rally in
Union City on September 30 to protest the lock-out of employees
at the four Alaris facilities. Williams played a prominent role in
the rally, opening the event with a ten-minute prayer. The event
was covered by local print and television media.62
Jasinski sent a letter, dated October 10, informing Massey that
Miller and Williams were reinstated as of October 15. Woodard,
however, was not on the same page and turned them away when
they reported to work on October 15. The snafu was partially
ironed out and Miller was reinstated on October 10.63 Williams,
however, was not reinstated until May 19, 2015. Upon her return,
she was reassigned from the fourth floor, where she had worked
the previous 23 years.64
LEGAL ANALYSIS
I. HARBORVIEW’S OBJECTION TO THE UNION’S BARGAINING
COMMITTEE
The complaint alleges that Harborview violated Section
8(a)(5) and (1) of the Act by refusing to bargain with the Union
on March 27, 2014 because employee representatives from the
other three facilities were present. Harborview contends that its
insistence that the Union’s bargaining committee be restricted
solely to Harborview employees was consistent with past prac-
tice. Additionally, Harborview contends that the parties' collec-
tive-bargaining agreement limited the Union's bargaining

59 GC Exh. 28.
60 I found Rodriguez very credible. (Tr. 1877–1878.)
61 Williams’ credible testimony was not disputed by Woodard. (Tr.
1804–1806.)
62 GC Exh. 102.
63 Miller resigned 13 days later. (GC Exh. 106, 119(a)-(c); R. Exh.
103.)
committee to six members.
Section 7 of the Act guarantees employees and employers the
right to “to bargain collectively through representatives of their
own choosing” and the Supreme Court has recognized this right
as fundamental to the statutory scheme. NLRB v. Jones & Laugh-
lin Steel Corp., 301 U.S. 1, 33 (1937). Generally, both parties
have a right to choose whomever they wish to represent them in
negotiations, and neither party can control the other party's se-
lection of representatives. General Electric Co., 173 NLRB 253,
255 (1968), enfd. 412 F.2d 512, 516-517 (2d Cir. 1969); Minne-
sota Mining & Mfg. Co. v. NLRB, 415 F.2d 174, 177-178 (8th
Cir. 1969) (affirming Board determination that “so long as it con-
fines negotiations to terms and conditions of employment within
the bargaining unit, it has free rein . . . in its choice of negotia-
tors.”)
The right to choose one’s bargaining representatives, how-
ever, is not absolute. An exception to the general rule arises when
the situation is so infected with ill will, usually personal, or con-
flict of interest as to make good-faith bargaining impractical.
See, e.g., NLRB v. ILGWU, 274 F.2d 376, 379 (3d Cir.
1960) (ex-union official added to employer committee to “put
one over on the union”); Bausch & Lomb Optical Co., 108
NLRB 1555 (1954) (union established company in direct com-
petition with employer); NLRB v. Kentucky Utilities Co., 182
F.2d 810 (6th Cir. 1950) (union negotiator expressed great per-
sonal animosity towards employer). But cf. NLRB v. Signal Mfg.
Co., 351 F.2d 471 (1st Cir. 1965) (per curiam), cert. denied 382
U.S. 985 (1966) (similar claim of animosity rejected). On the
other hand, where the employer simply asserts that there was ill
will and a conflict of interest relative to the proposed union rep-
resentatives, the Board is unlikely to grant an exception to the
presumptive rule that both employers and employees have an un-
restricted right to choose their own representative. Atlas Refin-
ery, Inc., 354 NLRB 1056, 1070 (2010) (employer "violated §
8(a)(5) and (1) of the Act by refusing to bargain with the Union
as long as [the union's designated representative] was part of the
bargaining committee”).
Mere inclusion of persons outside the negotiating unit does
not constitute exceptional circumstances. NLRB v. Indiana &
Michigan Electric Co., 599 F.2d 185 (7th Cir. 1979) (other
units); Minnesota Mining & Mfg. Co. v. NLRB, 415 F.2d at 177–
178 (other locals); General Electric Co. v. NLRB, 412 F.2d at
517-520 (2d Cir. 1969) (other international unions); Standard
Oil Co. v. NLRB, 322 F.2d 40, 44 (6th Cir. 1963) (other locals).
Furthermore, a claim that a union's use of outsiders was an un-
lawful attempt to compel companywide or multiplant bargaining
is also insufficient, unless the employer can demonstrate that the
union actually attempted to bargain outside unit boundaries
NLRB v. Indiana & Michigan Electric Co., 599 F.2d at
191; Minnesota Mining, 415 F.2d at 178; General Electric, 412
F.2d at 519–520.
64 Harborview’s hearsay testimony about letters purportedly sent to
Williams prior to a March 16, 2015 certified letter offering her the op-
portunity to reapply for a CNA position was completely unreliable. (Tr.
2279–2283, 2291; R. 109.) It is undisputed that Jasinski worked out an
arrangement whereby any reinstatement offers were to be communicated
by him to Massey. (Tr. 1976–1979.) In Williams’ case, that did not hap-
pen. (GC Exh. 119(e).)
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In this case, there was no evidence that the Union sought to
force Harborview into multiemployer bargaining through the
presence of bargaining unit members from the other three facili-
ties. The only hint of a Union strategy affecting all four facilities
was its desire to have Silva and Massey make opening statements
out the outset of bargaining. See International Brotherhood of
Electrical Workers, Local Union No. 46, AFL–CIO, 302 NLRB
271, 273-274 (1991) (union not justified in refusing to negotiate
with employer group’s chosen committee of members and non-
members at the outset of separate bargaining sessions in accord-
ance with a longstanding practice of including all both group
members and nonmembers under a single collective-bargaining
agreement).
Some delegates in attendances made side remarks, sneered
and laughed in response to Jasinski’s remarks on March 27.
However, Jasinski never mentioned that as an issue on March 27
and it was hardly an indication that the participation of employ-
ees from the other three facilities represented a “clear and present
danger to the collective bargaining process” or would create ill
will and make bargaining impossible. See International Broth-
erhood of Electrical Workers, Local Union No. 46, AFL-CIO,
302 NLRB at 273-274 (union did not meet burden of showing
that the employer group's chosen representatives were “so
tainted with conflict or so patently obnoxious as to negate the
possibility of good-faith bargaining”).
Jasinski’s additional concern at hearing that the presence of
employees from other facilities would violate the confidentiality
of employees at the other facilities does not pass muster. See
Milwhite Co., Inc., 290 NLRB 1150, 1152 (1998) (mere fear that
negotiations will result in compromising confidentiality is insuf-
ficient), citing General Electric Co., 173 NLRB at 255. No such
concern was expressed on March 27.
Harborview cites CBS, Inc., 226 NLRB 537, 539 (1976), as
support for the proposition that the Union’s bargaining repre-
sentatives presented “a clear and present danger to the bargaining
process or would create such ill will as to make bargaining im-
possible or futile.” That case, however, involved a conflict of in-
terest regarding the composition of a bargaining committee be-
cause one committee member was part of a labor organization
that did not represent CBS's members, but rather, two key com-
petitors. That is hardly the scenario here. Harborview also cites
Fitzsimons Mfg. Co., 251 NLRB 375, 379–380 (1980), for a sim-
ilar proposition. In Fitzsimons, however, an employer lawfully
excluded a union representative who engaged in an unprovoked
physical attack on the company's personnel director. Id. That sce-
nario was also inapplicable.
Given the absence of evidence of exceptional circumstances
indicating bad faith on the part of the Union, Harborview was
obligated to bargain with the Union’s bargaining committee on
March 27 even though employee-members from the other three
facilities were present. General Electric, 412 F.2d at 520. By
walking out of the negotiations under those circumstances, Har-
borview refused to bargain in good faith in violation of Section
8(a)(5) and (1) of the Act. See Standard Oil Co. v. NLRB, 322
F.2d at 44 (employer unlawfully refused to negotiate with union
bargaining committee, which added temporary representatives
from affiliated bargaining units in order to improve communica-
tion between them); NLRB v. Indiana & Michigan Electric Co.,
supra, (employer unlawfully refused to bargain with union nego-
tiating committee because the union was coordinating the vari-
ous bargaining efforts).
II. HARBORVIEW’S DELAY IN PROVIDING INFORMATION
The complaint alleges that Harborview also violated Section
8(a)(5) and (1) when it unreasonably delayed in providing the
Union with information requested in order to prepare for bar-
gaining. Harborview contends that it responded in a manner rea-
sonably consistent with past practice and that union officials
sanctioned the delay because of counsel’s other commitments.
The duty to timely furnish requested information cannot be
defined in terms of a per se rule. Good Life Beverage Co., 312
NLRB 1060, 1062 fn. 9 (1993). Rather, what is required is a rea-
sonable good-faith effort to respond to the request “as promptly
as circumstances allow.” Id. See also Woodland Clinic, 331
NLRB 735, 737 (2000). In evaluating the promptness of an em-
ployer's response, the Board considers the complexity and extent
of the information sought, its availability, and the difficulty in
retrieving the information. West Penn Power
Co., 339 NLRB 585, 587 (2003), citing Samaritan Medical Cen-
ter, 319 NLRB 392, 398 (1995), enfd. in relevant part 394 F.2d
233 (4th Cir. 2005). Since “information concerning terms and
conditions of employment is presumably relevant,” it must be
“provided within a reasonable time, or, if not provided, accom-
panied by a timely explanation.” In Re W. Penn Power Co., supra
at 597(citing FMC Corp., 290 NLRB 483, 489 (1988)). Even a
relatively short delay of 2 or 3 weeks may be held unreasonable.
See, e.g., Capitol Steel & Iron Co., 317 NLRB 809, 813 (1995),
enfd. 89 F.3d 692 (10th Cir. 1996) (2-week delay unreasonable
under the circumstances because the information sought was
simple, close at hand, and easily assembled); Aeolian Corp., 247
NLRB 1231, 1244 (1980) (3 week delay unreasonable under the
circumstances).
Harborview received the Union’s initial information request
on December 27 and a supplemental request on March 14. In
early January, Jasinski informed Massey and McCalla that he
would be busy with a State court proceeding in parts of January
and February. The trial eventually took place between early Feb-
ruary and the third week in March. Jasinski did propose, on sev-
eral occasions, to extend the term of the expiring contract, but
the Union never agreed. At no time, however, during his written
and verbal communications with the Union did he request an ex-
tension of time to respond to the information requests. That is
because Jasinski always intended to produce a response to the
information requests on the first day of bargaining.
Dallas & Mavis Forwarding Co., 291 NLRB 980(1988),
enfd, 909 F.2d 1484 (6th Cir. 1990), cited by Harborview, is in-
applicable. In that case, the Board found a delay in providing
requested information justified to the extent that the employer's
confidentiality interests outweighed a union's need for infor-
mation. The employer feared that competitors might gain an ad-
vantage if they acquired information about tariff rates contained
in certain business contracts. In this case, however, Harborview
never asserted confidentiality concerns as an excuse for the delay
at any time prior to March 27.
The passage of nearly 3 months in responding to the Union’s
initial information request and five weeks responding to the
ALARIS HEALTH AT HARBORVIEW 15
supplemental request was unreasonable. Harborview was en-
tirely mum on the subject notwithstanding follow-up reminders
by the Union to provide the information prior to the March 27
bargaining session. Instead, Jasinski simply delivered the infor-
mation at the conclusion of the March 27 session, just before he
and Gold walked out. The tactic was clearly calculated to pro-
long bargaining by ensuring that the Union would have insuffi-
cient time to analyze the information provided and, thus, be un-
able to commence meaningful bargaining at the first session. The
fact that Harborview previously delayed in producing requested
information until the first bargaining session does not rescue it
from a violation of Section 8(a)(5) and (1) of the Act.
III. REFUSAL TO PROVIDE DAILY SCHEDULES AND HEALTH
INSURANCE INFORMATION
The General Counsel also contends that Harborview violated
Section 8(a)(5) and (1) of the Act on May 21, when it refused to
provide daily work schedule information, and July 30, when it
refused to provide health insurance related information, both of
which were relevant and necessary to the performance of its du-
ties as the exclusive bargaining representative. Harborview re-
fused to provide such further work schedule information, insist-
ing that the Union should be satisfied with monthly master
schedules. With respect to the health insurance information, Har-
borview claimed it was prohibited from releasing such infor-
mation under the privacy provisions of the Health Insurance
Portability and Accountability Act of 1996.65
An employer has a duty to furnish relevant information nec-
essary to union representatives for the proper performance of
their duties as the exclusive bargaining representative. NLRB v.
Truitt Mfg. Co., 351 U.S. 149, 153 (1956); Detroit Edison v.
NLRB, 440 U.S. 301, 303 (1979); W-L Molding Co., 272 NLRB
1239, 1240–1241 (1984); NLRB v. Acme Industrial Co., 385 U.S.
432, 435-436 (1967); A-1 Door & Building Solutions, 356
NLRB 499, 500 (2011). Information requests regarding bargain-
ing unit employees' terms and conditions of employment are
“presumptively relevant” and must be provided. Whitesell Corp.,
352 NLRB 1196, 1197 (2008), adopted by a three-member
Board, 355 NLRB 635 (2010), enfd. 638 F.3d 883 (8th Cir.
2011); Southern California Gas Co., 344 NLRB 231, 235
(2005).
The standard for establishing relevancy is the liberal, “discov-
ery-type standard.” Alcan Rolled Products, 358 NLRB 37, 40
(2012), citing and quoting applicable authorities. The Union, in
accord with its duty, sought copies of daily work schedules in
order to formulate and present appropriate proposals on behalf
of employee-members. See Wayneview Care Center, 352
NLRB 1089, 1115 (2008) (work schedules relating to unit em-
ployees, are presumptively relevant, including information on
current schedules for each department). Moreover, the Union
was entitled to production of schedules of work actually per-
formed by employees and was not relegated to the monthly work
schedules. See McGuire Steel Erection, Inc. & Steel Enterprises,
Inc., 324 NLRB 221, 223–224 (1997) (employer unlawfully re-
fused to provide additional payroll records on the grounds that it
already provided the union with other types of payroll records);

65 45 CFR §§ 160 and 164.
National Grid USA Service Co., 348 NLRB 1235 (2006) (union
was entitled to copies of invoices containing base line infor-
mation, not just unverified summaries made by employer); Mer-
chant Fast Motor Line, 324 NLRB 563 (1997) (union was not
required to accept an employer’s declaration as to profitability or
summary financial information provided by the employer);
McQuire Steel Erection, Inc., 324 NLRB 221 (summaries of
payroll records deemed not sufficient to meet a respondent's stat-
utory obligation).
Similarly, Harborview was obligated to furnish the requested
health insurance information necessary for the Union to formu-
late its own proposal. One Stop Kosher Supermarket, Inc., 355
NLRB 1237 (2010) (union was entitled to health insurance plan
information). The Union was entitled to the requested infor-
mation concerning the costs of health insurance to Harborview
and covered employees in order to analyze them within the con-
text of the Affordable Care Act. This was significant infor-
mation, given the Union’s bargaining objective to increase de-
pendent health insurance coverage and its interest in exploring
alternative proposals to offset the costs.
On May 21, Jasinski formally denied the union’s request for
the daily work schedules. With respect to the health insurance
information request, Jasinski initially insisted the Union already
had the information. That was incorrect. The Union had only
been provided with partial information relating to gross payroll
benefits, monthly health plan costs, and a summary description
of the plan. After the Union persisted, he agreed to inquire fur-
ther. On July 30, Jasinski closed the door regarding any further
health insurance related information. He based that objection on
spurious confidentiality concerns that came more than 2 months
after the information request. Exxon Co. USA, 321 NLRB 896,
898 (1996) (confidentiality objection must be timely raised).
Moreover, the documentary evidence and Jasinski’s vague testi-
mony failed to identify how any of the requested health insur-
ance related documents involved the confidential medical infor-
mation of any employees. Lastly, Jasinski refused Massey’s of-
fer to work out an accommodation for the release of the allegedly
confidential information. See Castle Hill Health Care Center,
355 NLRB 1156, 1183–1184 (2010) (generalized confidentiality
concern unavailing as an excuse to refuse information request);
Under the circumstances, Harborview’s refusal to provide
daily work schedule information on May 21 and health insurance
related information on July 30 as requested by the Union violated
Section 8(a)(5) and (1) of the Act.
IV. THREATS REGARDING STRIKE ACTIVITY
A. Threats to Employees of Job Loss or Other Reprisals
The complaint alleges that Harborview engaged in various vi-
olations of Section 8(a)(1) of the Act. The standard in determin-
ing whether employer conduct violates that section of the Act is
based on whether statements made to employees reasonably tend
to interfere with the free exercise of employee rights under the
Act. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). In deter-
mining whether a supervisor's statement is unlawfully coercive,
the test is whether the employee would reasonably be coerced by
it. See Engelhard Corp., 342 NLRB 46, 60–61 (2004) (test for
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
coercion under Sec. 8(a)(1) is “whether the employer engaged in
conduct which, it may reasonably be said, tends to interfere with
the free exercise of employee rights under the Act”) (emphasis
in original), enfd. 437 F.3d 374 (3d Cir. 2006).
Harborview CNAs were called into the break room for meet-
ings with Mijares, the nursing director, and Lapus, the assistant
nursing director, and warned that employees could lose their jobs
if they went on strike. Miller voiced her disagreement, noting
that Rene Jordan, a housekeeper, participated in the 2009 strike
and was still employed. Lapus responded by reaffirming Mi-
jares’ warning.
The aforementioned supervisory statements sent clear mes-
sages that engaging in Section 7 activity was harmful to Har-
borview. See Hoffman Fuel Co., 309 NLRB 327, 327
(1992) (employer's questioning coupled with a veiled threat un-
lawful where there was no legitimate purpose for ascertaining
the employee's prospective union activities). Under the circum-
stances, these implied threats of job loss by Mijares and Lapus
violated Section 8(a)(1).
B. Memo to Employees About Job Loss or Other Reprisals
In early September, employees were handed leaflets by
Woodard and found them included with their paychecks. The
handouts posited the question of whether an employee could be
replaced if he/she went out on strike. The answer stated that “Un-
der Federal Law, we have the right to, and will, hire replacements
to fill any vacancies in our staffing schedules. In fact, to meet
our responsibilities to provide uninterrupted resident care, we
have begun to take steps to ensure we will have replacement for
all employees who choose to go out on strike and walk away
from their jobs. We do this because of our commitment to our
residents and our Facility. Once a strike is over, you may not be
able to immediately return to your job. That is a fact.”
Threatening employees that a strike will lead to job loss is un-
lawful because it incorrectly conveys to employees that their em-
ployment will be terminated as a result of a strike. To the con-
trary, the law is clear that economic strikers retain certain rein-
statement rights. Baddour, Inc., 303 NLRB 275 (1991) (without
explanation the employer stating “you could end up losing your
job by being replaced with a new permanent worker” was unlaw-
ful). Larson Tool & Stamping Co., 296 NLRB 895, 895–
896(1989) (employees could lose their jobs to permanent re-
placements). Woodard made no differentiation between eco-
nomic and unfair labor practice strikes. As the Board has stated,
“employers cannot tell employees without explanation that they
would lose their jobs as a consequence of a strike or permanent
replacement.” Baddour, 303 NLRB at 275. Accordingly,
Woodard’s memo violated Section 8(a)(1) of the Act.
V. REFUSAL TO REINSTATE STRIKING EMPLOYEES
The complaint further alleges that the Harborview violated
Section 8(a)(3) and (1) of the Act by refusing to reinstate Ingrid
Williams and Kyria Miller when they returned to work the day
after the strike ended. Harborview disagrees, insisting that Miller
and Williams were not entitled to reinstatement because they en-
gaged in an economic rather than unfair labor practice strike.
Strikes may be categorized as either economic or unfair labor
practice strikes. Spurlino Materials, LLC, et ano. v. NLRB, 805
F.3d 1131, 1136-1137 (D.C. Cir. 2015), citing General Indus-
tries Employees Union, Local 42 v. NLRB, 951 F.2d 1308, 1311
(D.C. Cir. 1991). That categorization carries significant conse-
quences. Economic strikers run the risk of replacement if, during
the strike, the employer takes on permanent new hires. NLRB v.
International Van Lines, 409 U.S. 48, 50 (1972); General In-
dutries Employees Union, 951 F.2d at 1311. In such instances,
economic strikers are entitled, upon their unconditional offers to
return to work, to reinstatement to their former or substantially
equivalent positions, if no permanent replacements have been
hired to replace them and the positions remain open. NLRB v.
Fleetwood Trailer Co., 389 U.S. 375, 378–379 (1967).
In the case of an unfair labor practice strike, employees are
entitled to immediate reinstatement to their former positions
upon their unconditional offers to return to work, even if the em-
ployer has hired replacements. See International Van Lines, 409
U.S. at 50–51, 93; Mastro Plastics Corp. v. NLRB, 350 U.S. 270,
278 (1956); General Industries Employees Union, 951 F.2d at
1311; Hajoca Corp. v. NLRB, 872 F.2d 1169, 1177 (3d
Cir.1989). Accordingly, an employer violates the Act if it fails
to reinstate such strikers once they have made an unconditional
offer to return to work. See Alwin Mfg. Co. v. NLRB, 192 F.3d
133, 141–142 (D.C. Cir.1999).
In determining whether the General Counsel has met his bur-
den of establishing that an employer’s unfair labor practices
caused the employee’s decision to go on strike, the Board looks
to the employees' motivations for striking, considering both ob-
jective and subjective evidence. See General Industries Employ-
ees Union, 951 F.2d at 1312; Spurlino Materials, 357 NLRB
1510, 1524–1525 (2011); Executive Management Services, 355
NLRB 185, 194–196 (2010); Chicago Beef Co. v. Local 26,
United Food and Commercial Workers Union, 298 NLRB 1039
(1990). A strike wholly driven by the desire of employees to ob-
tain favorable employment terms is an economic strike. When
employees strike as a result of an employer's unfair labor prac-
tices, the strike is an unfair labor practice strike. See Interna-
tional Van Lines, 409 U.S. at 50–51; General Industries Employ-
ees Union, 951 F.2d at 1311.
In this case, there is a dearth of self-serving testimony by em-
ployees as to their reasons for participating in the strike. There is
objective proof of motivation for the strike, however, in the state-
ments by Union officials. Through public statements, media pub-
lications and its website, the Union conveyed the mixed message
that it sought redress for Harborview’s unfair labor practices and
economic reasons (e.g., better wages, health insurance coverage
and pension plan). The Union followed up on these actions by
filing unfair labor practice charges and informing employees that
Board complaints would issue. See Citizens Publishing & Print-
ing Co., 263 F.3d 224, 235 (3d Cir. 2001) (facts supported find-
ing that Board’s decision to issue a complaint “galvanized bar-
gaining unit members' belief that an unfair labor practice had
been committed and served as the flashpoint for discussion about
calling a strike”).
It is evident that meaningful collective bargaining was ham-
strung at the outset by Harborview’s failure to provide respon-
sive information prior to March 27 and then refusing to com-
mence bargaining with Harborview’s chosen bargaining com-
mittee. While certainly not dispositive of the reasons for an
ALARIS HEALTH AT HARBORVIEW 17
eventual strike nearly six months later, it set the tone for a ragged
path of trickling information and resistance in providing relevant
work schedule and health insurance related information.
Under Board law, the dual motivation of Harborview’s em-
ployees to strike in order to improve their bargaining position
and assail Harborview’s unfair labor practices means that the
strike must be characterized as an unfair labor practice strike. See
Executive Management Services, supra at 193; Domsey Trading
Corp., 310 NLRB 777, 791 (1993); General Drivers & Helpers
Union Local 662 v. NLRB, 302 F.2d 908, 911 (D.C.Cir.1962).
“The employer's unfair labor practice need not be the sole or
even the major cause or aggravating factor of the strike; it need
only be a contributing factor.” Teamsters Local 515 v.
NLRB, 906 F.2d 719, 723 (D.C.Cir.1990); Alwin Mfg. Co., 192
F.3d at 141; General Industries Employees Union, 951 F.2d at
1311. See also Struthers Wells Corp. v. NLRB, 721 F.2d 465, 471
(3d Cir.1983); NLRB v. Cast Optics Corp., 458 F.2d 398, 407
(3d Cir.1972).
The Union, on behalf of the striking workers, gave Har-
borview a 10-day notice prior to the strike that employees would
strike on September 16, 17, and 18. On September 18, the Union
notified Harborview that the striking employees would return to
work the next day. Under the circumstances, Harborview’s re-
fusal to reinstate the Ingrid Williams and Kyria Miller on Sep-
tember 19 violated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Harborview was an employer engaged in commerce within
the meaning of Section 2(2) of the Act.
2. The Union was a labor organization within the meaning of
Section 2(5) of the Act.
3. At all relevant times, Kevin Woodard, Gerry Mijares,
Mariae Lapus and Julian Duran were supervisors of Harborview
within the meaning of Section 2(11) the Act, and David Jasinski,
Esq. was an agent within the meaning of Section 2(13) of the
Act.
4. Harborview violated Section 8(a)(5) and (1) of the Act by:
(a) Refusing on March 27, 2014, to bargain in good faith with
the Union’s chosen bargaining committee.
(b) Delaying for 3 months before producing information re-
quested by the Union which was relevant and necessary to its
role as unit employees’ labor representative prior to the com-
mencement of collective bargaining between the parties on
March 27, 2014.
(c) Refusing to provide daily work schedule information re-
quested by the Union on May 21, 2014, and health insurance in-
formation requested on July 30, 2014, all of which was relevant
and necessary to the Union’s role as unit employees’ representa-
tive.
5. Harborview violated Section 8(a)(1) of the Act in the fol-
lowing manner during early September:
(a) By distributing leaflets to employees warning that they
could be replaced and lose their jobs if they went out on strike.
(b) By warning employees at a group meeting in early Sep-
tember that they would be neglecting Harborview’s residents and

66 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
could lose their jobs if they went on strike.
6. By failing and refusing, on September 19, 2014, to imme-
diately reinstate Ingrid Williams and Kyria Miller, two employ-
ees who engaged in an unfair labor practice strike and had made
an unconditional offer to return to work, Harborview violated
Section 8(a)(3) and (1) of the Act.
7. The aforementioned unfair labor practices affected com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Harborview has engaged in certain unfair
labor practices, I shall order it to take certain affirmative action
designed to effectuate the policies of the Act. On request, Har-
borview shall bargain with the Union as the exclusive representa-
tive of the employees concerning terms and conditions of em-
ployment and, if an understanding is reached, embody the under-
standing in a signed agreement. Harborview shall also, within 14
days of the Board’s Order, offer the two employees who engaged
in an unfair labor practice strike in September 2014, and were
not immediately reinstated on request, recalled to their former
positions, terminating, if necessary, any replacements who oc-
cupy those positions, or if those positions no longer exist, to sub-
stantially equivalent positions without prejudice to their senior-
ity or any other rights or privileges previously enjoyed. I shall
also order Harborview to make whole the unfair labor practice
strikers who were denied reinstatement for any loss of earnings
and other benefits suffered as a result of the discrimination
against them. Backpay shall be computed in accordance with F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate
prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010). In addition, I shall order Harborview to ex-
punge from its files any reference to the failure to reinstate the
strikers, and to notify them in writing that this has been done.
Finally, I shall order Harborview to post a notice to all employ-
ees in accordance with J. Picini Flooring, 356 NLRB 11 (2010).
Harborview shall file a report with the Social Security Admin-
istration allocating backpay to the appropriate calendar quarters.
Harborview shall also compensate the discriminatee(s) for the
adverse tax consequences, if any, of receiving one or more lump-
sum backpay awards covering periods longer than 1 year. Latino
Express, Inc., 359 NLRB 518 (2012).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended66
ORDER
The Respondent, Alaris Health at Harborview, Jersey City,
New Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting 1199, SEIU United Healthcare Workers
East or any other union.
(b) Coercively threatening any employee with job loss if they
go on strike or engage in other union activities.
(c) Refusing to provide or delaying in providing necessary and
relevant information to the Union.
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.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(d) 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 effectu-
ate the policies of the Act.
(a) On request, bargain with the Union as the exclusive repre-
sentative of the employees in the following appropriate unit con-
cerning terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a signed agree-
ment:
All CNAs, dietary, housekeeping, recreational aides, LPNs,
and all other employees excluding professional employees,
registered nurses, confidential [employees], office clerical em-
ployees, cooks, supervisors, watchmen and guards.
(b) On request, furnish to the Union in a timely manner the
information requested concerning daily work schedules and
health insurance on May 21 and July 30, 2014.
(c) Within 14 days from the date of the Board’s Order offer
Ingrid Williams and Kyria Miller full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
(d) Make Ingrid Williams and Kyria Miller whole for any loss
of earnings and other benefits suffered as a result of the discrim-
ination against them, in the manner set forth in the remedy sec-
tion of the decision.
(e) Within 14 days from the date of the Board’s Order, ex-
punge from its files any reference to the failure to reinstate the
strikers, and to notify them in writing that this has been done and
that such adverse actions will not be used against them in any
way.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der 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 “Appen-
dix”67 in both English and Spanish. Copies of the notice, on forms pro-
vided by the Regional Director for Region 22, after being signed by the
Respondent’s authorized representative, shall be posted by the Respond-
ent and maintained for 60 consecutive days in conspicuous places includ-
ing all places where notices to employees are customarily posted. In ad-
dition to physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily communi-
cates with its employees by such means. 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

67 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
and former employees employed by the Respondent at any time since
March 27, 2014.
(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. February 11, 2016
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 be-
half
Act together with other employees for your benefit and
protection.
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge or otherwise discriminate against any
of you for supporting 1199, SEIU United Healthcare Workers
East, or any other union.
WE WILL NOT coercively threaten you with job loss if you go
on strike or engage in any other union activities.
WE WILL NOT refuse to timely provide the Union with neces-
sary and relevant information.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the exclusive
representative of the employees in the following appropriate unit
concerning terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a signed
agreement:
All CNAs, dietary, housekeeping, recreational aides, LPNs,
and all other employees excluding professional employees,
registered nurses, cooks, confidential [employees], office cler-
ical employees, supervisors, watchmen and guards.
WE WILL, on request furnish to the Union in a timely manner
the information requested concerning daily work schedules and
health insurance on May 21 and July 30, 2014.
WE WILL, within 14 days from the date of this Order, offer
Ingrid Williams and Kyria Miller full reinstatement to their for-
mer jobs or, if those jobs no longer exists, to substantially equiv-
alent positions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
WE WILL make Ingrid Williams and Kyria Miller whole for
any loss of earnings and other benefits resulting from our refusal
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
ALARIS HEALTH AT HARBORVIEW 19
to reinstate them or, upon their reinstatement, reducing their
work hours, less any net interim earnings, plus interest com-
pounded daily.
WE WILL file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters.
WE WILL compensate Ingrid Williams and Kyria Miller for the
adverse tax consequences, if any, of receiving one or more lump-
sum backpay awards covering periods longer than 1 year.
ALARIS HEALTH AT HARBORVIEW
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/22-CA-125023 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.