Castle Hill Health Care Center

National Labor Relations Board - Administrative Judge Opinions

Dec 14, 2009

22-CA-028152 (N.L.R.B. Dec. 14, 2009)

JD(NY)–44–09
Union City, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
CASTLE HILL HEALTH CARE CENTER
and Case Nos. 22-CA-28152
22-CA-28548
SEIU 1199 NEW JERSEY HEALTH CARE UNION
Saulo Santiago, Esq. Newark, NJ,
for the General Counsel
Alex Tovitz, Esq. and David F. Jasinski, Esq.
(Jasinski, P.C., Newark, New Jersey),
for the Respondent
Ellen Dichner, Esq., (Gladstein, Reif &
Meginniss, LLP, New York, New York),
for the Charging Party
DECISION
Statement of the Case
Mindy E. Landow, Administrative Law Judge. This case stems from charges in Case
Nos. 22-CA-28152 and 22-CA-28548, filed on December 5, 2007 and September 8, 2008,
respectively, by SEIU 1199 New Jersey Health Care Union (1199NJ or the Union) against
Castle Hill Health Care Center (Castle Hill, the Employer or Respondent). On November 25,
2008, the Regional Director for Region 22 issued an Order Consolidating Cases, Consolidated
Second Amended Complaint and Notice of Hearing (the complaint) alleging that Respondent
has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act. The
complaint alleges, in essence, that Respondent unlawfully failed to and delayed in providing
information to the Union and that it prematurely declared a bargaining impasse and unilaterally
implemented terms and conditions of employment for employees represented by the Union. The
Respondent filed an answer denying the material allegations of the complaint and raising certain
affirmative defenses, as will be discussed in further detail below.
A hearing in this matter was held before me on April 20 through 23, April 28 through
April 30 and May 26, 2009 in Newark, New Jersey. On May 22, 2009, based upon an amended
charge filed in Case No. 22-CA-28152, Counsel for the General Counsel moved to amend the
complaint to further allege that Respondent unilaterally failed and refused to make contractually
required pension fund contributions, and I granted that motion. Respondent denied the material
allegations of the amendment to the complaint and argued that they do not relate back to the
original charge and are time-barred by Section 10(b) of the National Labor Relations Act.
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On the entire record, including my observation of the demeanor of the witnesses,1 and
after considering the briefs filed by the General Counsel, Respondent and the Charging Party, I
make the following
Findings of Fact
I. Jurisdiction
Respondent, a New Jersey corporation with a facility located in Union City, New Jersey,
is engaged in the operation of a nursing home and rehabilitation center. During the 12-month
period preceding the issuance of the complaint, the Respondent derived gross revenues in
excess of $100,000 and purchased goods valued in excess of $5,000 directly from points
outside the State of New Jersey. Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
As noted above, Respondent operates a long-term health care facility in Union City, New
Jersey. It is owned by the Omni Company, (Omni), a company that manages a number of
nursing homes in New Jersey including Bristol Manor Health Care Center, Harborview Health
Care Center and Palisade Nursing Center (hereafter Bristol Manor, Harborview and Palisade).
The Union and Respondent have been parties to a series of successive collective-
bargaining agreements covering a unit of full-time and regular part-time certified nurses aides
(CNAs), dietary and housekeeping (Grade 1) employees and recreation employees.2 The most
recent agreement between the parties was a memorandum of agreement which expired on July
24, 2007 (the 2002 MOA). The MOAs for Bristol Manor, Harborview and Palisade expired on the
same date as well, and the bargaining for these four facilities overlapped for some time.
Although this proceeding relates to Castle Hill only, from time to time the parties made reference
to discussions at other tables, as will be described as is relevant to the issues herein.
The parties commenced bargaining in July 2007. At this time there were approximately
120 employees in the unit; during the course of bargaining this number diminished. Pursuant to
attrition, by July 2008, the number of employees had been reduced to approximately 94 full-time
and regular part-time employees. The bargaining for a successor agreement took place over the
course of one year and thirteen sessions were held. Respondent was represented in
negotiations by its attorney David F. Jasinski, who was the lead negotiator, and consultant

1 Credibility resolutions have been made based upon a review of the entire record and all
exhibits in this proceeding as well as the demeanor of the witnesses. In addition, the inherent
probability of the testimony has been utilized to assess credibility. Where there is an apparent
conflict in the evidence of particular relevance to my determinations herein, I have endeavored
to explain the specific basis for my conclusions. Otherwise, testimony contrary to my findings
below has been discredited on some occasions because it was in conflict with the credited
testimony of others or because it was inherently incredible or unworthy of belief.
2 The parties stipulated to the appropriate unit at the hearing.
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Mendy Gold.3 The Union was represented in bargaining primarily by executive vice-president
Clauvice Saint Hilare, assisted by organizer Ron McCalla. There was also an employee
bargaining committee which attended each scheduled session. In addition, at some point early
in the negotiations the Union asked for a federal mediator. Respondent agreed to this request,
and James Kenney was appointed by the Federal Mediation and Conciliation Service to assist
in the negotiations.
1. The KL Labor Group Agreement and Subsequent Memoranda of Ageeement
As a preliminary matter, it should be noted that at the outset of bargaining, neither party
was in possession of a full contemporaneous executed copy of the collective-bargaining
agreement which governed terms and conditions of employment at Castle Hill or, in fact, any of
the other Omni facilities. Both parties had a succession of MOAs and side letters but they had
not been compiled into a uniform document.
The KL Labor Group Agreement (the KL Agreement) was a multi-employer agreement
among several nursing home facilities and 1115 Nursing Home and Hospital Employees Union
(Local 1115), predecessor to 1199NJ. This agreement ran from 1992 to 1996. During the course
of negotiations, the parties disagreed as to whether this formed the underlying collective-
bargaining agreement applicable to Castle Hill. The Union took the position that it was, and as
will be discussed below, there was unrebutted testimony that both Respondent and the Union
referred to this agreement during the course of adjusting greivances with the Union.
Respondent took the position that the KL Agreement did not apply to Castle Hill. The
document in question does not specifically refer to this facility and, in fact, does not reference a
list of covered nursing homes. In addition, as Respondent argues, during the course of
negotiations the Union was unable to identify the constitutent members of the KL Labor Group
nor identify who had signed the agreement on behalf of the parties.
The General Counsel and the Union have taken the position in this proceeding, as the
Union did in negotiations, the the KL Agreement is the underlying collective-bargaining
agreeement covering Castle Hill, governs most of the non-economic terms and provides that
certain economic terms such as wages, holidays, vacations and sick and personal leave are set
forth in applicable memoranda of local conditions. In support of this argument, both the General
Counsel and the Union make reference to a memorandum of local conditions which, by its
terms, applied to Castle Hill and was effective from 1992 through 1996. This agreement
provides, in pertinent part: “Except as modified herein, and by the terms of the Arbitration Award
rendered by Hon. Leon Reich, dated August 27, 1992, the provisions of the collective bargaining
agreement dated January 1, 1992, by and between the Union and KL New Jersey Labor Group
shall be binding upon and constitute that agreement between the parties.” 4
In any event, it is clear that the parties never manifested a meeting of the minds on this
issue and it continued to be a subject of discussion and disagreement in any number of
negotiation sessions.

2. The April 2007 Request for Information

3 Gold did not testify herein.
4 The KL Agreement had a grievance and arbitration clause (Article 8) which established a
process for interest arbitration, naming Leon Reich as the designated arbitrator.
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In anticipation of bargaining, on April 25, 2007, Saint Hilare wrote to Castle Hill
administrator Francine Sokolowski requesting certain information, as follows:
SEIU 1199 New Jersey Health Care Union requests the following information, which it
needs for upcoming negotiations for a successor agreement. Please provide the
information no later than May 15, 2007. At the same time, I would suggest May 22 or 24
as bargaining date.
1. Any and all documents, including but not limited to job descriptions and
performance evaluations, that describe the job duties for all bargaining unit positions;
2. For each employee working in a bargaining unit position, such documents as will
show the following:
a) Job title for each employee;
b) Date of hire;
c) Current hourly rate of pay;
d) Regular hours of work;
e) Number of overtime hours worked on a quarterly basis in 2006 and 2007;
f) Address;
g) Whether employee is a no-frills employee;
3. Documents, including but not limited to summary plan descriptions that show all
fringe benefits such as health insurance, disability, pension, profit sharing, and 401(k)
benefits available to or provided to part-time and full-time employees in the bargaining
unit;
4. Any and all manuals or other documents, including documents distributed to
employees, that describe any of the terms and conditions of employment for employees
in the -bargaining unit;
5. Gross annual payroll for the bargaining unit for the periods January 1, 2006
through December 31, 2006 and January 1, 2007 through March 31, 2007;
6. Total cost to the Employer for each of the following benefits provided to
bargaining unit employees during the periods January 1, through December 31, 2006
and January 1 through March 31, 2007: health, dental, vision, life insurance and
pension;
7. Number of employees covered by each of the following categories of health
insurance: single, family, employee/spouse, employee/child;
8. Names of all agencies used by the Employer to provide temporary staff;
9. Copies of invoices received from each agency showing the names, number of
hours worked, rate(s) billed and job title for each agency employee provided to the
Employer during the periods January 1, 2006 through March 31, 2007;.
10. Copies of work schedules for each nursing unit and/or department for the months
October through December, 2006, and January through March 2007;
11. OSHA injury and illness records for 2005, 2006 and 2007.
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12. Any and all documents setting forth policies regarding overtime work (both
voluntary and mandatory), shift differentials and/or any form of premium pay for
employees in the bargaining unit;
13. Any and all documents setting forth policies regarding health and safety in the
workplace;
14. Complete copies of cost reports submitted, including any supplemental
submissions, for reimbursement for Medicaid or for any other public entity or program for
the years 2005 and 2006.
Respondent, through Jasinski, initially responded to this information request on May 3,
2008. He enclosed the employee handbook and a benefits rider which described the various
benefits offered to employees.5 In this letter, Jasinski also denied the Union’s reqeust to
negotiate the four Omni facility contracts together.
On June 4, Saint Hilare responded to Jasinski as follows:
For the record, I just want you to know that the package you sent to the Union contains
for Bristol Manor: Employee list with rate, social security number, date of hire and a
policy manual; for Castle Hill only a cover letter and a policy book; for Palisades:
Employee list with rate, social security number, date of hire and a policy manual. In order
to prepare for negotiations, the Union requests the following information:
ï‚· An updated list of all employees performing bargaining unit work by job classification in
seniority order, including name, address, social security number, job title, date of hire,
wage rate, shift, enrollment in health insurance (and at what level of coverage,
individual, dependent, or family), part-time or full-time status, number of hours worked
and paid since January 1 2007, and amount of vacation days, sick days, personal days
and/or holidays earned but unused for the employees at Castle Hill. We did not receive
any of this information in the package that you sent to the Union for Castle Hill.
ï‚· The gross bargaining unit payroll from January 1 2007 through June 30 2007 for
Palisades, Bristol Manor and Castle Hill.
On June 4, Jasinski forwarded a copy of Respondent’s summary description plan for its
health insurance. Additional information was sent on June 25 which included the gross wages
for January through December 2006 and January through March 2007 and aggregate figures for
the costs of health, dental and life insurance premiums for the same periods of time.
3. The Parties Extend the Collective-Bargaining Agreement
Attached to Saint Hilare’s letter of July 17 was a proposed extension of the collective-
bargaining agreement. The Union proposed extending the contract to August 24 and making all
wage increases retroactive to July 24. By letter of July 24, Jasinski enclosed a revised extension
agreement extending the contract to September 7 and proposing that all changes to the

5 Single health insurance coverage was provided at no cost to the employees. The benefits
rider listed the additional costs to employees if they wished to include family members under the
Employer’s plan.
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agreement become effective upon approval and ratification of the parties. It is not clear from the
record which of the proposed extensions was the one put into place, but it is undisputed that the
collective-bargaining agreement was extended during negotiations.
B. The Bargaining, Information Requests and Related Correspondence
1. The First Bargaining Session – July 25, 2007
The parties met for the first time on July 25, or one day after the expiration of the 2002
MOA. The parties discussed logistical issues and ground rules. Then, Saint Hilare made a
presentation in which he stated that the Union’s goals were affordable health insurance,
including family coverage; wage and minimum salary increases; enhanced pension benefits;
increased paid time off for employees; improved health and safety language and language that
would strengthen the bargaining unit. The Employer stated its goals in bargaining as well:
specifically that the Employer wanted to negotiate a contract that addressed the needs of the
facility, its employees and its residents. Jasinski testified that Saint Hilare also stated that the
Union was looking to obtain a contract consistent with industry standards that the Union had
established with approximately 45 other nursing homes in and around New Jersey, in particular
wage minimums for certain classifications of employees, and that the Union wanted the
Employer to participate in the Union’s benefit plan – the Greater New York Benefit Fund
(GNYBF) which provided for employer-paid family coverage. Jasinski testified that he told the
Union that the Employer could not accept the “industry standards” as the interests and needs of
Castle Hill were unique. According to McCalla the issue of so-called “industry standards” was
raised by the Employer who stated that the bargaining at Castle Hill was viewed as being for
that facility exclusively and not tied to any other facility or to Union standards generally. Jasinski
also disparaged the GNYBF, stating that it was in financial difficulty and that the Employer had
no interest in participation in that plan. Rather, the Employer planned to continue single
coverage of its employees through its own plan. 6
During this bargaining session the Union put forward a contract proposal containing both
economic and non-economic terms. The Union sought a three-year agreement with various
modifications including, among other things, a reduction in the probationary period from 60 to
30 days, an increase in paid time off for employees, the Employer’s participation in the GNYBF
or another plan equal to or better than the Union’s plan (including dependent coverage) with the
cost of premiums to be covered exclusvely by the employer, the addition of parental and
marriage leave and a health and safety clause which provided for a “zero lift”7 policy as well as
the establishment of a health and safety committee. With regard to wages, the Union proposed
a seven percent across-the-board raise for each of the three years of the agreement with
minimum hourly salaries in the third year of $11.00 for CNAs and $10.00 for Grade 1 (dietary
and housekeeping) employees. The proposal further provided that the employer would make
contributions to the Union pension fund of three percent of gross payroll for each non-

6 At various times throughout these proceedings the parties made reference to the so-called
“Tuchman Agreement.” This is a collective-bargaining agreement, negotiated by the Union,
governing terms and conditions of employment with approximately 20 employers, with some
individual variances. McCalla testified that the Union considered the general reference to
industry standards to be broadly what had been achieved in the Tuchman Agreement. Jasinski
testified that after Saint Hilare made his opening presentation, he told Saint Hilare that
everything he had stated was consistent with the Tuchman Agreement.
7 The term “zero lift,” as used in this proposal, refers generally to the use of mechanical
devices to transport patients and supplies weighing over 30 pounds.
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probationary employee covered by the agreement. There was no substantive discussion of the
Union’s proposal at the time.
The Union raised the issue of its prior information request and asserted that Respondent
had not fully addressed all the items set forth therein. Jasinski stated that some of the
information sought was irrelevant or unnecessary and that the Union had sufficient information
to bargain. He then stated that the Union would receive additional information prior to the next
bargaining session.
2. Interim Correspondence Prior to the Next Bargaining Session
By letter of July 27, 2007 Respondent provided the Union with additional information
which it had sought on April 25. In particular, Jasinski provided a list of employee names,
addresses, job classifications, wage rates, dates of hire, job status, health insurance coverage
and average hours for a two-week period during the prior six months. He additionally provided
the Union with the cost to employees for dependent coverage. Respondent asserted that, “[t]his
completes the Union’s information request.”
Subsequently, on July 30, 2007, Respondent requested information from the Union, as
follows:
At the outset of the negotiations, the Union raised the issue of the health benefits. Based
on the Union's proposal, we request a copy of the Union's current health benefit plan. In
addition, we request any documents reflecting the status of the current plan and/or its
negotiations for a new health care provider.
We further request any and all information related to the 1199/SEIU Greater New York
Benefit Fund; Service Employees International Union National Industry Pension Fund;
Training and Education Fund; and New Jersey Healthcare Workers Alliance For Quality
in Long Term Care.
The information which we requested included the following:
1. Any and all financial information including but not limited to internal reports and
records for each of these funds for the years 2002, 2003, 2004, 2005, 2006, and
2007.
2. Any and all documents including supporting documentation filed with any
government agency related to these funds for the years 2002, 2003, 2004, 2005,
2006, and 2007.
3. List of all members of the Funds for the years 2002, 2003, 2004,
2005, 2006, and 2007.
4. List of employees who have specifically benefited from the Training and
Education Fund from this facility for the years 2002, 2003, 2004, 2005, 2006, and
2007.
This information is relevant to these negotiations based on your proposals and needed
by us in order to formulate a counter-proposal to the Union's demands. Your attention to
this matter will be greatly appreciated and facilitate the negotiations.
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On August 8, prior to the next session, Saint Hilare wrote to Jasinski, requesting that the
Employer submit proposals at the next session. He additionally remined Jasinski that there were
certain items of information that Respondent had not yet provided to the Union. Saint Hilare also
stated that the Union would have a response to the Employer’s request for information prior to
the next session.
Saint Hilare’s letter also made reference to a so-called “compilation” document which
had been received from the Employer at the Bristol Manor table. By way of background, it
should be explained that, since both parties did not have a full contract pertaining to any of the
four Omni facilities, Respondent either volunteered, or was asked, but clearly agreed to prepare
a document setting forth current terms and conditions of employment to assist the parties in
their negotiations.8 Saint Hilare noted that such a document had not been received with regard
to Castle Hill and noted that the Union had many questions regarding the document it had
received. The Union also asked Respondent to provide copies of all underlying documents it
had used to prepare the “compilation.”
3. The Second Bargaining Session – August 14, 2007
The parties met for a second time. McCalla was not in attendance on this occasion.
According to Saint Hilare, the parties discussed the compilation document which had been
given to them at the Bristol Manor table. Saint Hilare testified that he argued that the
compilation did not accurately replicate the existing terms and conditions, in particular that some
terms were missing or had been changed. In particular, Saint Hilare pointed out that a provision
providing for daily overtime had been deleted, that language protecting the Union from the
unauthorized actions of employees had been deleted and that there was a new provision which
allowed the Employer to assign bargaining unit work to supervisors under certain
circumstances. According to Saint Hilare, Jasinski stated that if the Union did not like the
compilation it should make a counter-offer.
Saint Hilare testified that he again asked Respondent to provide information responsive
to the Union’s April 25 request, in particular information regarding the cost of health insurance,
the number of no-frills employees9 and OSHA logs. Saint Hilare testified that Jasinski asked
why such information was necessary and he replied it was “standard.”10 According to Saint
Hilare, Jasinski stated that Respondent would send the information to the Union prior to the next
bargaining session.
Jasinski asserted that at this meeting the Union took the position that KL Agreement

8 As Jasinski testified, the parties mutually acknowledged the lack of a complete agreement,
and the Union requested that he prepare a document which memorialized the parties’
understanding of the terms and conditions for Castle Hill. Jasinski testified that he felt
“uncomfortable” doing so but told the Union he would “take his best shot.” Jasinski further
testified that at this time he informed the Union that the document would contain the Employer’s
proposals going forward. According to McCalla and Saint Hilare, Jasinski offered to prepare the
document and did not say anything about the incorporation of the Employer’s proposals until the
Union raised the issue.
9 No-frills employees are those who forego benefits in exchange for an enhanced wage rate.
Under the 2002 MOA, the employer was limited to offering such terms to 10 employees.
10 At the hearing, Saint Hilare testified that such information was relevant to the Union’s
health care and health and safety proposals. I note that he did not, however, testify that he said
this directly to Jasinski at the time.
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formed the basis of the agreement between the parties but could not identify what it was. As
Jasinski testified:
No one ever knew who the KL group was, no one could identify those signatures.11 Then
the Union handed me this [document] across the bargaining table, no one was
participating in contract negotiations, no one had any knowledge in terms of what the KL
group was, who it represented, the number of employers. We had no idea and quite
honestly the union didn’t have any idea either.
4. The Third Bargaining Session – August 28, 2007
In accordance with the parties’ agreement, a federal mediator, James Kinney, attended
this session, and all subsequent meetings between the parties. Also present were Jasinski,
Gold, Saint Hilare, McCalla and the employee bargaining committee.
Saint Hilare opened the meeting by noting that it had been over one month since the
expiration of the agreement, and expressed dissatisfaction with the pace of bargaining.
The parties entered into a discussion of the Union’s contract proposal, and the Employer
offered some initial feedback. McCalla’s bargaining notes reflect that there was a discussion
relating to the Employer’s positions on health and safety, union activity and communications and
discipline and discharge. As McCalla acknowledged, the parties had a significant dialogue about
the non-economic terms of the Union’s proposal.
Jasinski also distributed the compilation document which had been prepared for Castle
Hill at this session. The Union noted that there were differences between the document and the
current terms and conditions of employment. These included new language affording
supervisors greater leeway to do unit work and the elimination of language which facilitated
organizing unorganized departments. In addition, the probationary period had been increased
from 60 to 90 days, there were increased restrictions on Union access to the facility, the
threshold for eligibility for medical benefits and paid leave had been increased and daily
overtime had been eliminated.
Jasinski informed the Union that he had provided it with what he believed to be the
existing terms and conditions coupled with the Employer’s bargaining proposals. According to
Jasinski, he felt that proceeding in this manner would expedite the process. The Union
requested that Jasinski go through the document and highlight the Employer’s proposed
changed from existing terms, and he agreed to so and stated that he would provide such a
highlighted version for the next bargaining session.
The Union asked whether Jasinski had used the KL Agreement in preparing the
compilation. Jasinski stated that the KL group had nothing to do with the bargaining for Castle
Hill. The Union asked Jasinski to check with Castle Hill representatives to see if anyone knew
what the KL Agreement was, as it appeared to be the last full collective-bargaining agreement in
the Union’s files. As Jasinski again noted, the Union could not name any employer who was part
of that group or even identify what KL stood for.

11 At the hearing, McCalla was able to name the individual who had executed the agreement
on behalf of the Union. The record does not establish, however, that he shared this information
with the Employer.
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Saint Hilare asked for full compliance with the Union’s outstanding information request
and further asked the Employer to provide something new: the Employer’s premium payments
for single coverage under its plan. According to McCalla, the Union asked for this information to
see if it could suggest improvements, propose alternatives or convince the Employer to go to
the Union plan. In this regard, Jasinski testified that he reiterated that the Employer would not
agree to go into the GNYBF.
5. Interim Correspondence Prior to the Next Bargaining Session
On August 28, Respondent made a follow-up request for information from the Union:
Since the Union is proposing participation in the SEIU Pension Plan, 1199 SEIU/GNY
Education Fund and 1199 SEIU/GNY Benefit Fund, we request copies of all Fund
documents, including the actual Plans, as well as any and all financial records for each
Plan, including the 5500's for the past 3 years. Your prompt attention to this matter will
greatly facilitate these contract negotiations. Until we receive such information, of
course, we cannot intelligently respond to the Union's proposal. Thank you.
By letter dated August 30, Saint Hilare offered Respondent several bargaining dates and
urged that the parties establish a schedule. He also requested an additional contract extension.
On September 12, Respondent sent an additional contract extension.
6. The Fourth Bargaining Session – September 19, 2007
At this meeting, the Employer distributed the highlighted version of the compilation
agreement which he had previously agreed to prepare and the parties reviewed it. The Union
reiterated its request that the Employer recognize the KL Agreement as the underlying contract,
and Jasinski again refused to do so.
The record establishes that in the compilation agreement distributed on this day Jasinski
had failed to highlight certain variances from existing terms and conditions. In particular, the
language in the pension provision was a change from what had been the existing practice;
however, this was not noted by the Union at the time.12 In addition, the provision deleting daily
overtime had not been highlighted. According to Jasinski, when the Union pointed that out to
him he acknowledged his error and told the Union that it should have been.
Jasinski testified that he told the Union that the language in the compilation agreement
was not unique and had been agreed to in other SEIU 1199 contracts, in particular the one
negotiated at the St. Lawrence Rehabilitation Center. According to Jasinski, that agreement
contained certain provisions similar to what had been proposed by Castle Hill regarding
supervisors and union visitation.
The parties also discussed their overall bargaining stragegy. Jasinski stated that his
preferred method, which he viewed as most efficient, was to negotiate language issues first and
then deal with economics subsequently. Jasinski also told the Union that he viewed economics
in their totality. The Union requested that the Employer submit an economic counter-proposal.

12 The Employer was proposing that it make a contribution for full-time employees only for
“hours physically worked.” The record establishes that this proposal was at variance from its
current obligations under the 2002 MOA, which provided for contributions for both full-time and
part-time employees as a percentage of payroll.
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7. The 10-Day Notice
On October 18, 2007, the Union sent a ten-day notice to Sokolowski informing
Respondent that the Union intended to conduct an informational picket at Castle Hill on October
30 from 1p.m. to 5p.m. Jasinski replied to this notice with a letter stating that the Employer
expected the Union to engage in lawful conduct and would not tolerate any activity which
impeded patient care services; that employees would be expected to report for work during their
scheduled work hours and that if any employee walked off the job during their regular work
hours, the Employer would take appropriate disciplinary action. Jasinski testified that this letter
was sent because he had heard that there was going to be a job action, and there had been
threats of a strike and he wanted to make sure employees would honor their work obligations.
The record indicates that an informational picket did take place on the appointed day and time
without incident.
8. The October 19, 2007 Request for Information
On October 19, 2007, Saint Hilare wrote to Jasinski requesting information which had
previously been requested on April 25, but which the Union felt had not been provided. In
addition, the letter reflects certain requests that had been made directly at the bargaining table.
As Saint Hilare wrote:
Dear Mr. Jasinski,
The Union has made several unsuccessful efforts to obtain from these employers
information necessary to bargain contracts at Castle Hill, Palisades, Harbor View and
Bristol Manor. The failure by these employers to produce requested documents has
hampered our bargaining especially as we are finally beginning economic bargaining.
The Union repeats its request for the following information for each of the four above
referenced facilities:
1. For each employee working in a bargaining unit position such documents as will show
the following:
a) Regular hours of work.
b) Number of overtime hours worked on a quarterly basis in 2006 and 2007.
c) Whether an employee is a no-frills employee.
2. Names of all agencies used by the Employer to provide temporary staff.
3. Copies of invoices received from each agency showing the names, number of hours
worked, rate(s) billed and the job title for each agency employee provided to the
Employer during the periods January 1, 2006 through March 31, 2007.
4. Copies of work schedules for each nursing unit and/or department for the months
October through December 2006, and January through March 2007.
5. OSHA injury and illness records for 2005, 2006, and 2007.
6. Complete copies of cost reports submitted, including any supplemental submissions,
for reimbursement for Medicaid or for any other public entity or program for the years
2005 and 2006.
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7. The per-employee monthly premium cost for Employer funded single health insurance
coverage (requested verbally during bargaining).
8. Copies of all collective bargaining agreements and memorandums of
understanding/agreements including all documents that you used to compile the
documents that were submitted across the table and characterized by you as the current
contract at each of the above referenced facilities.
With respect to this last item, because the current Union and management negotiators
did not participate in the negotiations of the prior contracts with these employers, we are
both at a disadvantage in compiling a full set of contracts and MOAs for each facility.
The documents that you handed us in bargaining that purportedly summarized the
current terms and conditions of employment from prior agreements, were inaccurate. We
therefore, reiterate our request for all contracts and MOAs between the parties since
1990 that are within the possession and control of your clients.
General Counsel adduced testimony from both McCalla and Saint Hilare about why such
information had been requested.13 In particular, the Union representatives testified that the
Union sought information regarding regular work hours and overtime information because
employees had complained that staffing was not sufficient and because the Employer had
proposed eliminating daily overtime – a proposal which would impact unit employees. The
number of no-frills employees related to bargaining over the issue of dependent health care
coverage. Both McCalla and Saint Hilare testified that the July 27 list of employees raised
questions regarding how many no-frills slots were being utilized since the list indicated that
more than 10 employees (the allotted number of no-frills slots) who were eligible for health
insurance14 did not receive such insurance or extra compensation for foregoing such benefits.
The second and third paragraphs requested information regarding agency usage. Saint
Hilare testified that the Union had received anecdotal evidence from Castle Hill employees that
agency employees had been used. Saint Hilare testified that he also spoke with certain
employees, whom he did not recognize and who stated that they were from a temporary
agency. The record is unclear, however, as to whether any of these conversations may have
taken place prior to the October 19 letter.15 McCalla testified that information regarding agency
usage is relevant because agency employees are costly to the employer and the Union might
want to consider whether some of the money spent on temporary staff might well be utliized to
enhance the benefits of current employees; the Union was considering a staffing proposal and
that the use of agency employees erodes the bargaining unit. OSHA records were requested to
track whether there were safety issues at the facility which should be addressed and to defend
the Union’s health and safety proposals.
According to McCalla, the Medicaid cost reports were something “typically” gotten before

13 I do not rely upon this general testimony to establish what was actually stated during
meetings or in other communications between the parties about the information and its possible
or probable relevance. For that, I rely upon specific testimony about particular bargaining
sessions, correspondence and, where appropriate, the bargaining notes taken by McCalla and
Saint Hilare.
14 Under the 2002 MOA, employees become eligible for single coverage after working more
than 20 hours per week for a period of 6 months.
15 According to Saint Hilare, the first of these discussions took place in either October or
November 2007 and the second in about May 2008.
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bargaining to give the Union a “snapshot” of the facility. Such reports, which are filed with the
state, are voluminous and contain information about facility such as the census, number of
beds, officers, staffing and agency usage, among other items. McCalla testified that these
reports were typically reviewed by the Union’s research staff and he was unable to identify
where information regarding staffing or agency usage would be found.
The Union also requested per-employee premium cost for Employer-funded single
health insurance. Although the Employer had previously provided information relating to the
costs of dependent coverage, it had not provided the Union with specific information about the
costs of single employee coverage. McCalla and Saint Hilare testified that this information was
necessary to enable it to calculate the total cost for health insurance. In addition, the Union
requested copies of those documents which the Employer had used when preparing the
compilation agreement.
9. The Facility Contracts to Use Agency Employees
Jasinski testified that based upon threats of a job action which had emerged in
connection with the informational picket, the facility contracted to provide supplemental services
to ensure the continuity of patient care. Jasinski further testified that he informed the Union that
the facility had done so at a subsequent negotiation session held shortly thereafter. His
testimony in this regard will be discussed below.
The General Counsel presented testimony from David Greisman, the CEO of Towne
Nursing Staff, Inc. (Towne Nursing). According to Greisman, in about October 2007, he
received a telephone call from Gold requesting supplemental employee services. Greisman told
Gold that he was not willing to provide such services unles the facility would be willing to enter
into an agreement for a period of some three or four months. Towne Nursing begain providing
certified nurses aides, on a weekly basis, ranging from 225 to 450 hours per week during the
period from October 22, 2007 through April 11, 2008. As of April 17, Towne Nursing was no
longer providing services to the facility.
Saint Hilare testified regarding a copy of a work shedule given to him by an employee for
Saturday, February 23, 2008. According to Saint Hilare, the agency employees assigned to
work on that day are indicated by the designation “TA.” There are eight such designated
employees for that day.
10. The Fifth Bargaining Session -- October 24, 2007
At the opening of the meeting, the Employer requested that the Union respond to its
economic counter-proposal. According to McCalla, the Union had not yet received such a
proposal relating to Castle Hill, and he surmised that Respondent was confusing this bargaining
with another table. After a caucus, Respondent presented the Union with an economic counter-
proposal which proposed a five-year agreement with an overall wage increase of 17.25 percent.
At the expiration of the agreement, the minimums for CNAs and Grade 1 employees would be
$8.50 and $8.00, respectively. Also proposed was an increase in life insurance coverage from
$12,000 to $15,000. The Employer’s pension proposal provided for monthly contributions of two
percent for all eligible full-time employees’ gross actual monthly wages, defined as hours
physically worked, excluding paid leave. Employees would become eligible for particpation in
the pension plan after one year of employment. The Employer also proposed increasing the
number of no-frills slots to 20.
According to McCalla’s notes, there was a discussion of the Employer’s wage proposal.
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Saint Hilare reminded the Employer that it had promised competitive wages to employees and
Gold replied that the proposed wage structure was comparable to other facilities.
During this meeting, Saint Hilare brought forward the Union’s modification of the non-
economic terms of its July 25 proposal which had been altered as a result of discussions the
parties had held at the August 28 and September 19 bargaining sessions. Saint Hilare went
through the new proposal and pointed out that in some instances the Union had adopted the
Employer’s stated position in its entirety and in others had altered its language to more closely
approach the Employer’s position. The Union had made modifications to its proposals regarding
the probationary period, union activities and communications, discipline and discharge, transfers
and promotions, seniority, layoff and recall and health and safety.
According to McCalla, Jasinski then asked whether the Union agreed to everything else
the Employer had put on the table. The Union replied that the fact that certain of management’s
proposals had not been referenced did not mean that it was accepting them.
Jasinski testified that the Union’s proposal had been conditioned on the Employer’s
withdrawing language about supervisors doing bargaining unit work. He further testified that he
requested that the Union put forward a comprehensive economic proposal and the Union said
they would do so at the next session. As Respondent notes, McCalla’s bargaining notes
characterize this as a “good discussion.”
11. McCalla Meets with Sokolowski and the Parties Exchange Correspondence
At some point prior to the planned informational picket, McCalla went to the facility and
met with administrator Sokolowski regarding an employee inquiry as to whether Columbus Day
was a paid holiday. As McCalla testified, neither of them could answer that question. Sokolowski
brought out her files, which appeared to be a collection of contracts and MOAs. Included among
the documents was the KL Agreement. McCalla asked Sokolowski what the document was, and
she replied that the way she researches such matters is to refer first to that document and then
look to see whether the relevant provision has been deleted or changed by a subsequent
agreeement. As McCalla testified, Sokolowski further stated that she had provided a copy of the
KL Agreement, along with her file, to Respondent’s counsel in preparation for the negotiations.
According to McCalla, they never got to the bottom of the Columbus Day issue. There was no
specific reference to it in the KL Agreement, but Sokolowski offered her opinion that it had been
removed as a paid holiday at some point.
During their discussion, McCalla raised the issue of the bargaining and expressed his
frustration with the process. On cross-examination, McCalla admitted that he told Sololowski
that Jasinski and Gold were being unreasonable. Subsequent to this discussion, on November
6, Jasinski wrote to Saint Hilare as follows:
Throughout this negotiation, the parties expressed their differences at the bargaining
table. The absence of a signed collective bargaining agreement by the Union slowed the
negotiating process. The Employer, at the behest of the Union, in an effort to move the
contract negotiations forward, submitted a complete contract which set forth its
understanding of the existing terms and conditions, as well as limited modifications
which the Employer highlighted. The Union refused to engage in any discussion
concerning the existing terms and conditions in the contract. Instead, the Union insisted
the Employer submit a complete economic offer, and stated this would go a long way to
resolving the contract.
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We agreed with the Union's demands and submitted a comprehensive economic offer
which included substantial wage increases. The Union flatly rejected this proposal and
refused to make a counter-offer. Instead, the Union engaged in a demonstration at
Castle Hill, inviting employees from other facilities to disrupt Castle Hill and the services
to our residents.
Prior to the demonstration, Ron McCalla visited the Castle Hill and requested a meeting
with the Administrator -- Francine Sokolowski. During this meeting, Mr. McCalla engaged
in a series of unlawful acts designed to undermine the negotiation process. Specifically,
he sought to negotiate with Ms. Sokolowski, discussing specific proposals and
suggesting that the Employer's representatives were an obstacle to reaching a new
contract.
In more than 25 years of experience negotiating labor contracts, I have never been
confronted with this type of unlawful behavior. While I have my opinion of the Union
leadership, I respect the choice that the Union makes in leading the contract
negotiations.
Mr. McCalla has demonstrated he simply cannot be trusted. As such, any and all
discussions that the parties have will be face to face at the bargaining table. In addition,
should Mr. McCalla or any other Union representative repeat this unlawful behavior, we
will exercise our right to file appropriate charges with the National Labor Relations
Board.
Finally, this letter shall serve as notice that since the contract expired and has not been
extended, the Employer will cease deducting dues.
McCalla replied to Jasinski’s letter as follows:
SEIU 1199 NJ Executive Vice President Clauvice St. Hilaire asked me to respond to
your November 6, 2007 letter. The parties indeed have expressed their differences at
the bargaining table though it is important to note that despite the Union's willingness to
establish a comprehensive schedule of bargaining dates starting in June and the Union's
availability in each week since, management has only agreed to six bargaining meetings
over the last 5 months.
During bargaining you agreed to create a document that would compile all collective
bargaining agreements and memorandums of understanding/agreement between the
parties and bring that document to the table along with all the CBAs and memoranda
that you used to compile the document. On August 14, 2007 you brought a document to
our bargaining session that you purported to be the compiled current agreement
between the parties. After an initial review it quickly became apparent the document was
not a faithful representation of the existing agreement but instead was a document that
contained major changes to the existing conditions of employment. These changes were
not highlighted nor even acknowledged by you until the Union called them to your
attention. Only then did you admit that the document did indeed contain changes to the
existing agreement and was essentially your non-economic contract proposal. You did
not on this occasion or at any point to this day give the Union a copy of the CBAs and
memoranda that you used to compile this document.
I did meet with Francine Sokolowski for the purpose of discussing whether Columbus
Day is one of the contractually recognized holidays. Several workers had raised the
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issue with the Union. In my meeting with Ms. Sokolowski she reviewed her file of CBAs
and memoranda between the parties to confirm the status of Columbus Day. Her file
contained the January 1992 agreement between the Union and Management at that
time organized as the "KL New Jersey Labor Group". Ms. Sokolowski stated that this
document was the original and complete agreement that all the successive memoranda
amended. This "KL New Jersey Labor Group" contract is the document we requested
from you because we, too, understood it to be the full document underlying the
subsequent MOAs yet you have denied this to be the case. Your refusal to acknowledge
this document has impaired and slowed bargaining. We request that you immediately
deliver that document and the other MOAs to the Union. After the Columbus Day
discussion, Ms. Sokolowski and I did speak about the current state of labor management
affairs. However, at no time in this dialogue did either of us discuss specific proposals
submitted across the table in bargaining or any suggested changes in said proposals.
With regard to the economic proposal you finally submitted at our last bargaining session
held on October 24, 2007, the Union asked some questions of clarification, gave a
general first impression of the proposals and agreed to submit a counter proposal at the
next session after a comprehensive review of Management's proposal. The informational
picket on October 30, 2007 was peaceful, lawfully conducted and was not intended nor
did it disrupt resident care.
The Union remains committed to reaching an agreement with Management at Castle
Hill. Clauvice St. Hilaire has called you on numerous occasions to schedule new
bargaining dates and would appreciate hearing back from you to schedule dates to
resume bargaining.
12. The Sixth Bargaining Session – November 13, 2007
On November 9, Saint Hilare had written to Jasinski renewing his request for the
information previously requested and urging that it be provided before the next bargaining
session or by November 14 in the event no sessions were scheduled prior to that date.
At the bargaining session held on November 13, the parties discussed McCalla’s
meeting with Sokolowski and McCalla stated that he had seen a copy of the KL Agreement in
Sokolowski’s file. He reiterated that the Union felt that acknowleging this document as the
underlying agreement was important to the bargaining process. Saint Hilare stated that the
Union was willing to sign off on that part of the proposed agreement which complied with terms
contained in the KL Agreement. Jasinski again disputed the importance of the KL Agreement to
the bargaining.
As McCalla testified, the Union put forward a verbal economic proposal which included
splitting the wage increases for the second and third years rather than having the full annual
wage increase become effective on the anniversary date of the contract. In addition, the Union
proposd moving the minimums back to a point where they were significantly less than those set
forth in the Tuchman Agreement. The Union maintained its proposal, however, that by the end
of the agreement the minimum salaries would reach $11 and $10 for CNAs and Grade 1
employees, respectively. The Union did not put forward any proposals regarding pension or
health insurance at this time.
According to Jasinski, the Union’s “theme” was industry standards. Jasinski did
acknowlege that the Union ‘s proposal had pushed back the date the minimums were to take
effect.
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There was a discussion of the Union’s information request. McCalla’s bargaining notes
reflect that Saint Hilare specifically pointed to the fact that a number of employees over the no-
frills limit seemed not to be receiving benefits and that he wanted to know how many employees
were in that category. Saint Hilare also asked for information regarding the per-employee
premium cost for single health coverage. According to McCalla, the Union was told that it had
everything but that Gold will look into the issue of single health coverage. The Union asked
whether that would not be something that Gold would know off the top of his head and the reply
was that the Employer had made it clear that they were not going to move on the issue of health
insurance. Gold stated that the Union was putting jobs in jeopardy and that the Union was not
interested in a contract.
Jasinski testified that at this meeting he informed the Union that the facility had
contracted to use agency employees.16 He testified as follows:
The union asked us if there were agency employes that were being used and our
response was yes, that we had the threat of a strike, that there was going to be a threat
of a work job action, that we were taking precautions, that it was not impacting on any of
the employees, that it had no effect whatsoever with regard to any of our employees, we
were just looking to make sure that the services were going to be continued to be
provided.
Jasinski testified that he also informed the Union that only Castle Hill was using agency
workers, and that the other facilities were not. He stated that he did not recall the Union asking
any questions about this issue.
With regard to the Union’s information request more generally, Jasinski initially testified
that he did not recall the Union raising any issues regarding outstanding information requests at
this meeting, but during his cross examination acknowledged that Respondent had informed the
Union that it had provided all information that was relevant.
13. The Employer Proposes a Christmas Bonus and the Union Agrees
On December 12 and 13, 2007 the Employer wrote to the Union proposing a one-time
holiday bonus for all full-time and part-time employees of $150 and $75 respectively. The Union
voiced no objection to this, and eventually communicated its agreement with the proposal. The
bonus was implemented prior to the Christmas holiday.
14. The Seventh Bargaining Session – January 17, 2008
The parties met for their next session on January 17, 2008. According to McCalla’s
bargaining notes, Jasinski asked for a clarification of the Union’s proposal regarding wages,
minimums and vacation time.
At this session the Employer provided the Union with a verbal economic counter-
proposal which included a five-year agreement, with a total wage increase of 18 percent over
the course of the agreement, at the end of which the minimum salaries for CNAs and Grade 1

16 In its brief, Respondent asserts that this discussion took place at the October 24 meeting.
In his testimony, however, Jasinski stated that he told the Union about the agency usage after
the informational picketing (which he characterized as a “demonstration work stoppage”)
occurred.
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employees would be $9.50 and $8.75, respectively, and which provided for an increase in the
number of allowable no-frills slots to 20. Jasinski stated that the Employer wanted to conclude
the contract and was frustrated because it had provided the Union with a langage proposal
months ago which incorporated language found in the KL Agreement with some minor changes,
there had been no response. Saint Hilare countered by pointing out that management had
previously stated that the St. Lawrence contract had been the basis for its proposals. Saint
Hilare further disagreed with Jasinski’s assertion that the Union had not responded to the
Employer’s non-economic proposals, noting that the Union’s had placed its own non-economic
proposals on the table and was awaiting the Employer’s response.
According to McCalla, the Union again asked the Employer to provide the cost of single
employee coverage. In addition, the Union wanted to go through the employee roster and
identify the no-frills employees. Gold and Jasinski replied that the Union had received all the
information it needed and accused the Union of not being interested in bargaining. McCalla
requested that the Employer provide the Union with copies of the KL Agreement and related
MOA’s. On cross-examination, McCalla acknowledged that at the time this request was made,
the Union already was in possession of a copy of the KL Agreement and, in fact, had previously
supplied it to the Empoloyer. McCalla testified that the request was made because the Union felt
that a good faith review would compel the Employer to acknowledge that the KL Agreement was
the underlying contract.
15. On January 29, 2008, Respondent Replies to the Union’s October 19, 2007
Information Request
By letter dated January 29, 2008, Jasinski issued the following response to the Union’s
October 19, 2007 demand for information. Copies of various memoranda of agreement,
including the KL Agreement, were enclosed as well.
As Jasinski wrote:
We are frustrated with the Union's current efforts to avoid meaningful contract
negotiations. At the request of the Union, and in an effort to move the negotiations
forward, we submitted a complete contract which set forth its understanding of the
existing terms and conditions, as well as some limited modifications which we
highlighted. Instead of showing your appreciation, the Union decided to file unfair labor
practice charges alleging that I somehow misrepresented the terms of the prior contract.
As you know, these allegations are patently false.
Early in these negotiations, the Employer provided the Union with all of the documents
responsive to its information requests. Nonetheless, the Union did what it always does --
ask for additional information that is largely duplicative and/or irrelevant to the bargaining
process. Your recent request for information further represents the Union's delay and
bad faith tactics.
Nonetheless, in a further effort to move the negotiations forward, we respond to your
additional request for information, dated October 19, 2007, as follows.
Request No. 1
For each employee working in a bargaining unit position such documents as will show
the following:
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a) Regular hours of work;
b) Number of overtime hours worked on a quarterly basis in 2006 and 2007;
and
c) Whether an employee is a no-frills employee.
Response to No. 1:
This information was already provided to the Union.
Request No. 2
Names of all agencies used by the Employer to provide temporary staff.
Response to No.2
The facility does not utilize any agencies to provide temporary staff.
Request No. 3
Copies of invoices received from each agency showing the names, number of hours
worked, rate(s) billed and the job title for each agency employee provided to the
Employer during the periods January 1, 2006 through March 31, 2007.
Response to No. 3
The facility does not possess any such invoices.
Request No. 4
Copies of work schedules for each nursing unit and/or department for the months
October through December 2006, and January through March 2007.
Response to No. 4
This information will be forwarded to the Union under a separate cover.
Request No. 5
OSHA injury and illness records for 2005, 2006, and 2007.
Response to No. 5
The facility does not possess such information. Furthermore, we fail to see how this
information is relevant to the current negotiations.17
Request No. 6
Complete copies of cost reports submitted, including any supplemental submissions, for
reimbursement for Medicaid or for any other public entity or program for the years 2005

17 Jasinski testified that he had been in error in asserting that the facility did not maintain
OSHA records.
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and 2006.
Response to No. 6
This information is readily available to the Union through the State. Indeed, as the Union
has demonstrated in the past, you are already in possession of this information
Request No. 7
The per-employee monthly premium cost for Employer funded single health insurance
coverage (requested verbally during bargaining).
Response to No. 7
This information was already provided to the Union.
Request No. 8
Copies of all collective bargaining agreements and memorandums of
understanding/agreements including all documents that you used to compile the
documents that were submitted across the table and characterized by you as the current
contract at each of the above referenced facilities.
Response to No. 8
We find it particularly troublesome that you seek copies of prior contracts and MOAs
negotiated by your Union. Nonetheless, we enclose the prior contracts and all
memoranda of agreements in our possession and the documents provided by the Union
during the negotiations, including the KL New Jersey labor Group Contract.
* * *
Jasinski continued:
We look forward to continuing our contract negotiations and fully anticipate that the
Union will resume these negotiations in good faith. All we ever wanted was to negotiate
a fair contract that balances the needs of the facility, our employees, and our residents.
As you have demonstrated, you have been able to negotiate and make proposals. Avoid
the game-playing that has scarred other negotiations. We are not interested in game-
playing and only look for a contract that addresses the needs of our employees.
16. The Eighth Bargaining Session – February 12, 2008
At the outset of this meeting, the Union put forward a new economic proposal. McCalla
characterized this as a “structural move” in that the Union now would agree to having a contract
that would not reach back to the exipration date of the 2002 MOA, but would be a three-year
agreement moving forward. The Union additionally proposed a signing bonus of $400. The date
for the top minimum hiring rate was pushed into 2011 and the Union’s demand for pension
contributions was reduced to 2.5 percent of gross payroll. The Union additionally reduced its
proposal regarding sick days and holidays to 10 in each category and further proposed a $3 per
week uniform allowance.
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The Employer then made an economic counter-proposal. It reiterated that its position on
health insurance was final, proposed a two percent contribution to the pension fund, and that it
would maintain the status quo with regard to vacation and holidays. In addition, the Employer
proposed a two-tier system for medical leave for current and newly-hired employees.
In addition, Jasinski brought forward a new wage proposal that included a signing bonus
of $100 and a formula for wages which amounted to a 17 percent increase over the life of the
agreement. After a caucus, the Union came back to the table and stated that it believed that
management’s wage proposal was less favorable than the one which had been put forward in
January. Jasinski disagreed, and told the Union that it could choose between the new wage
proposal or the one which had been previously put forward and consider that to be
management’s current position. After a caucus, the Union came back to the table and stated
that they would choose the Employer’s prior proposal as reflecting its current bargaining stance.
Even though it did not have a signing bonus, the wage structure was more favorable to
employees.
At this meeting Jasinski also announced that the Employer had reached its final offer on
a number of economic provisions, leaving only the wages and minimums at issue. He further
stated that the Employer was close to its final offer on wages and had reached its final offer as
to the non-economic language in the proposed agreement. Both McCalla and Saint Hilare
expressed surprise at this position insofar as there had been no discussion of their October 24
proposal regarding non-economic terms and conditions.
17. Saint Hilare Responds to Respondent’s January 29, 2008 letter
On February 14, 2008, two days after the parties had met for the eighth time, Saint
Hilare responded to the letter sent by Jasinski on Janaury 29 and the information provided
therein, as follows:
I am responding to the letters you faxed to the Union on January 29, 2008 referencing a
request for information relevant to negotiating collective bargaining agreements at the
above referenced facilities that I sent you on October 19, 2008. While you sent four
separate letters for each of the facilities in question, your statements were identical in
each letter so I will take the liberty to respond to all of the assertions you raised in one
document.
The Union shares your frustration at the lack of progress at these negotiations though
we take issue with many of the assertions in your letters. To start, the "complete
contract" you submitted at each negotiation was not a faithful representation of the
existing terms between the parties and you did not indicate or state that it included
"highlighted modifications" when you provided the document. The changes you inserted
were subsequently highlighted only after we brought them to your attention at
bargaining. Further, you did not provide "all the documents responsive to ... information
requests". We have raised the issue of lack of compliance with our information requests
both in writing and at multiple bargaining sessions for the above referenced facilities. I
will respond to your letter in the format you used. Each response represents our
understanding for each of the above referenced facilities.
Request 1
1. We have not received information on overtime hours.
2. We have not received a list of no-frills employees. Contrary to your claims, we cannot
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determine from information provided which employees are no-frills.
Request 2 and 3
Information from our members disputes the assertion that no agency CNAs are being
used in the above referenced facilities.
Request 4
As I advised you on February 7, 2007 we have yet to receive the copies of work
schedules for the above referenced facilities promised in your January 29, 2008 letter.
Request 5
We find it hard to believe that the facilities do not keep OSHA logs. It is my
understanding that nursing homes need to keep these records. The Union has made
proposals for improved health and safety standards that would be informed by this
information which reflects employee injuries and illnesses.
Request 6
We understand but do not agree with your position that you need not provide Medicaid
costs reports and other related data because this information is available from other
sources. Kindly furnish the 2007 report as soon as it is available.
Request 7
You provided only the cumulative cost for single health insurance coverage for everyone
in the above referenced facilities, not the monthly per employee premium cost to each of
the four employers. That vital piece of information cannot be accurately computed from
the information we received. We cannot simply divide the cumulative total by the number
of employees to determine the cost because the number of employees fluctuates from
month to month. We do not understand why you refuse to simply provide this readily
accessible monthly premium information.
Request 8
We finally received the MOAs and contracts as you promised in your January 29, 2008
letter. We are pleased to receive this information so that we can confirm past practices
and benefits and bargain intelligently over the issues. We note that at least one of the KL
Labor Group contracts you sent us is not a document we had and gave to you during
bargaining. We presume that it is a document that the employer had in its possession
and recognized as part of the bargaining history between the parties. If that is incorrect,
please let me know.
The Union also looks forward to returning to negotiations and concluding collective
bargaining agreements that address the legitimate needs of our members as well as the
needs of the residents and operators of the facilities.
18. Respondent Replies to Saint Hilare’s February 14, 2008 Letter
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On February 20, 2008, Jasinski responded to the assertions contained in Saint Hilare’s
letter, as set forth below:
We have reviewed your letter dated February 14, 2008 combining all facilities and
continue to be perplexed by your actions. Instead of focusing your attention on
negotiating a contract in the best interests of your members, you persist with your
requests for information entirely irrelevant to the bargaining process.
As we advised you, we will provide copies of the work schedules under separate cover.
Otherwise, we have fully complied with the Act by providing the Union with all the
information necessary to negotiate. We continue to assert that this information is
unnecessary, irrelevant and already in the Union's possession. Your request for
irrelevant information further represents the Union's delay tactics and abuse of the
process. One needs to look no further than the Union's ability to put forth full
comprehensive economic offers with the information we have already provided to you.
Additionally, we have repeatedly told you at the bargaining table that the KL Labor
Group contracts have no relevance to these negotiations. Contrary to your self-serving
statements, we do not recognize that these documents are part of the bargaining history
of the parties.
It is time for you to stop playing games and focus on negotiating a contract in good faith.
If it is your position that the Union will not return to the bargaining table without this
information, please let us know. If that is the case, we respectfully request that you have
the decency to inform your members of the reasons that the parties are not meeting. We
do not want any misunderstanding or miscommunications on this point. Otherwise, we
intend on going forward with the scheduled sessions in a good faith effort to reach an
amicable resolution that balances the needs of this facility with that of the employees.
Finally, by combining all the facilities in your letter, you continue to disregard our position
that each facility is separate and stand alone. In the future, please address each facility
separately, since each facility has its own collective bargaining agreement.
19. The Ninth Bargaining Session – February 27, 2008
As McCalla testified, the Union decided to make some structural changes and
compromises to “jumpstart” the bargaining with regard to wages and health insurance. In
particular, the Union agreed to add a fourth year to the agreement In addition, the Union agreed
to run the contract prospectively and, as McCalla stated, that would bring the coverage of the
agreement closer to management’s proposal for a five-year term. Further, the top salary
minimum rates were pushed back to take effect September 2011. The Union additionally
proposed a two percent seniority recognition bonus.18 The Union modified its proposal
regarding Employer-financed dependent care coverage and suggested a schedule that would
not require the Employer to make full payment for dependent coverage until an employee had
completed 10 years of service.19

18 Saint Hilare’s bargaining notes from March 11 indicate that the Union’s seniority
recognition proposal would apply to employees with more than 5 years of employment.
19 For the first five years of employment, the employee would pay for dependent care. After
this point, the Employer would assume 50% of the cost and the share of the Employer’s burden
would increase by 10% each year until the employee had completed 10 years of employment.
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Jasinski told the Union that the proposed wage structure, coupled with the seniority
bonus, was regressive and demonstrated the Union’s bad faith. Jasinski stated that the Union’s
advancement of this proposal, at such a late date in negotiations, showed that they were not
trying to get a contract and were just attempting to drag things out.
20. The Tenth Bargaining Session – March 11, 2008
Prior to this meeting, on February 29, 2008, the Union issued another 10-day notice
regarding informational picketing at Castle Hill.
At the tenth meeting, which McCalla did not attend, the Employer put forth a revised
economic proposal which sought to modify paid time off by establishing a two-tier system for
current and newly-hired employees. Respondent also offered an increase in the signing bonus.
Saint Hilare told Respondent that, without the information regarding health premium
costs, it was difficult to bargain over or defend its health care proposal. Jasinski replied that the
Union had been able to make its proposals without the information.
Saint Hilare testified that at this meeting he told Jasinski that there Castle Hill was
utilizing the services of agency employees and that Jasinski denied that claim.20 Saint Hilare
also stated that the Union had asked the Employer about the number of no-frills employees and
why certain employees did not have health insurance and Gold replied that the Employer would
get back to the Union on that issue.
Saint Hilare also told the Employer that members were complaining about having
received medical bills. Gold collected copies of such bills from the bargaining committee
members and said he would look into the issue. The Union complained that new employees
were not being informed that they were eligible for health insurance, and Gold stated that there
was a staff member whose responsibility it was to speak with new employees about their
benefits.
A bargaining session scheduled for March 18 was thereafter cancelled by the Union. On
that day Saint Hilare met with local politicians to enlist their support in getting a contract with
Respondent.
21. On April 1, 2008, Respondent Provides Additional Information to the Union
By letter dated April 1, Jasinski wrote to Saint Hilare and provided additional information
to the Union as follows:
We provide you with the following information:
1. Amount of overtime for the previous year varied each week based on a number of
factors including call-outs and unavailability of staff. Nevertheless, it is fair to estimate
that overtime hours typically ranges from 100-300 hours per week over the previous
year.

20 Saint Hilare’s bargaining notes list as an issue to be raised, “agency workers @ Castle
Hill.” There is also a subsequent reference to “agency.”
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2. Number of no-frills employees: 0
3. Agency Usage: None as of April 1, 2008
4. OSHA: See attached21
5. Monthly insurance premiums:
289 Single
526 E+1
647 Family
As we have previously stated across the table, nothing has prevented the Union from
engaging in negotiations. To the contrary, the Union has made proposals and
counterproposals including a comprehensive contract proposal. Upon receipt and
review, if you have any additional questions or comments, we respectfuIly request that
you respond in writing.
22. The Union’s Response to Respondent’s April 1 Letter and Submission
On April 9, Saint Hilare responded as follows:
I am responding to your April 1, 2008 letters regarding the Union's outstanding request
for bargaining information. While you sent four separate letters for each of the facilities in
question, your statements were almost identical for each facility. Unless otherwise
indicated, my comments below relate to all four facilities.
Request 1: Your response to the Union's request for overtime information is inadequate.
You state, "it is fair to estimate" for all four facilities that overtime hours "typically range
from 100-300 hours per week over the previous year." The Union requested the number
of overtime hours worked on a quarterly basis in 2006 and 2007 for each bargaining unit
employee. Your generalized estimate is not sufficient.
You provided contradictory information on the number of no-frills employees.
Requests 2 and 3: You continue to deny that the facilities use agency workers.
Request 4: No schedules were provided.
Request 5: After all these months, you finally produced OSHA logs for 2007 on April 1,
2008. You did not produce logs for 2005 and 2006.
Request 6: No documents provided.
Request 7: Thank you for finally providing the monthly insurance premiums in your April
1, 2008 letter.
The piecemeal fashion in which the information has been provided and the failure to
provide all the information requested, even these many months later, has made these
negotiations particularly difficult. Now that we have information regarding health

21 Enclosed was the OSHA log for 2007.
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insurance and health and safety, we will provide you with revised proposals at our next
bargaining sessions at all four facilities. Once we receive the remaining information, we
will present further proposals.
23. The Eleventh Bargaining Session – April 9, 2008
The Employer had maintained that the facility did not have any no-frills employees.
Jasinski testified that the Union kept raising the issue because the Employer had proposed
increasing the number of allowable slots and had been informed that this was to afford the
Employer increased flexibility. As Jasinski testified, Respondent also took the position that,
inasmuch as no-frills employees were Union members, the Union could get that information
from them.
At this bargaining session the Union representatives had brought with them a copy of the
employee list which had been provided by Respondent. The Union had placed question marks
next to the names of all employees who were designated as not having health insurance.
According to Saint Hilare, the list showed a number of employees who appeared to be without
coverage who worked enough hours and had sufficient seniority to qualify under the 2002 MOA.
The Union wanted to speak about individual employees, but the Employer refused to do so.
Initially, Gold stated that he would get back to the Union with a response, but then the Employer
advanced several possible explanations as to why workers who were not no-frills employees
would nevertheless not have coverage: the employee may not have sufficient hours to
participate, the employee may not have reached the 6-month waiting period in order to
participate; or the employee simply never signed up for coverage.22 On cross-examination,
Respondent adduced testimony from Saint Hilare that the Union had not sought to file
grievances with regard to any employee who was listed as not receiving health insurance who
the Union felt would qualify for that benefit.
The Union reiterated its prior requests for employee schedules and was told that they
were bulky and not retained.23
24. Respondent’s April 22, 2008 Response to the Union’s April 9 Letter
On April 22, 2008, Jasinski replied to Saint Hilare’s April 9 letter as follows:
We are in receipt of your letter dated April 9th. At the inception of these negotiations, the
Employer provided the Union with a complete response to the Union's request for
information. Nonetheless, on April 1, 2008, we provided a supplemental response in
response to information requested by you. Instead of expressing appreciation, you claim
that the failure to provide the Union with additional information - which is largely
irrelevant, not in our possession, and/or easily ascertainable - has made these
negotiations difficult.
Let's be clear. The parties have been negotiating for months. As we previously stated
across the bargaining table and in prior correspondence, the Union has been fully

22 This assertion prompted a discussion about whether the Employer had an affirmative
obligation to ensure that employees who qualified for coverage were knowledgeable about their
rights.
23 Previously, in letters dated January 29 and February 20, the Union had been advised that
schedules would be provided.
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capable of putting forth full economic proposals and counterproposals. Indeed, you have
made proposals covering every economic item. The additional information being sought
is neither relevant nor necessary to continue bargaining. Rather, it reflects the Union's
delay and stall tactics and its warped purpose of avoiding a contract that addresses this
facility.
As always, we are fully prepared to continue negotiating in good faith. Nonetheless, if
the Union is unwilling to continue bargaining without the rest of the requested
information, please let us know. Otherwise, the Union should be prepared to negotiate a
contract that balances the needs of this facility and its employees.
Thank you.
25. The Twelfth Bargaining Session – May 14, 2008
On May 8, Saint Hilare wrote to Jasinksi confirming that he had received a letter setting
a negotiating date of May 14. Jasinski replied the same day noting that since the Union had
requested the involvment of the FMCS, any and all communications regarding the negotiations
be communicated through the mediator, including proposed dates for meetings
At this meeting, as Jasinski testified, certain economic proposals were exchanged and
from the Employer’s perspective, “we were pretty close to our final offer at that time.” Saint
Hilare’s bargaining notes for May 14 show that the Employer presented a proposal for a five-
year agreement, a $175 signing bonus upon ratification, a 17.5 percent wage increase over the
life of the agreement, and final minimum salaries of $9.50 and $8.75 . No-frills employees would
receive a wage enhancement of $1.50 per hour, and 20 such positions would be allotted. The
majority of other benefits would be as had been previously proposed. The Union modified its
February 27 offer by reducing the proposed signing bonus to $325 and lowering proposed wage
increases by $.25 in two years of the contract.
The Union requested that the Employer supply it with an updated employee roster.
Jasinski agreed, and according to Saint Hilare, also committed to providing the Union with
answers to its questions regarding no-frills employees. On May 14, Respondent supplied Saint
Hilare with a list of employees as of May 13, 2008, setting forth each employee’s name, title,
rate of pay, date of hire, address, hourly status and health insurance status. As Saint Hilare
testified, however, the document did not contain any health insurance information whatsoever
with regard to a number of employees and lists one employee as being a no-frills employee;
thus it did not clear up the no-frills issue.
During the meeting, Saint Hilare told the Employer representatives that he would be
unavailable for bargaining during the month of June due to a Union convention and a planned
vacation. According to Saint Hilare he made a point of repeating this at the meeting and Jasinski
joked with him about it. Jasinski testified that he did not recall how he became aware that Saint
Hilare would be unavailable, and that any such unavailability should not have precluded the
parties from negotiating inasmuch as McCalla would have been available in any event. Jasinski
further asserts that he communicated this to Saint Hilare.
26. Respondent’s May 15, 2008 Letter to the Union and the Union’s Response
On May 15, Jasinski wrote to Saint Hilare, as follows:
On May 14, 2008, the parties held another negotiation session. At that time, the
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Employer made a complete proposal for a new collective bargaining agreement to the
Union. The Union responded with a minor change in its wage proposal and no further
changes in any other provision including economic and non-economic items.
Prior to the conclusion of this meeting, after nine (9) months of negotiations, you
requested (for the first time) an updated list of employees. You indicated that once you
receive that list you will be prepared to schedule another negotiation session. Yesterday,
we forwarded to you in your office the updated list of Union employees. Therefore, we
see no reason for continued delay and request a bargaining session for this facility. We
propose May 30, June 2 or 3, 2008 to continue negotiations, as this will provide you with
more than sufficient time to confirm the information and formulate a complete response.
At that session, we expect a full proposal from the Union that includes economic and
non-economic items.
On May 20, Saint Hilare replied as follows:
This is to advise you that a set of bargaining date[s] is sent to you for your confirmation
regarding Castle Hill, Harbor View and Palisades. The Union is available on June 6,
2008 for Castle Hill at 10AM, June 9, 2008 for Palisades at 10AM and June 10, 2008 for
Harbor View at 10AM.24
27. Respondent’s May 28, 2008 Response to the Union’s April 9 Information
Request
On May 28, Jasinski wrote to the Union, enclosing certain information that previously
had been requested from Respondent:
We enclose the following additional documents responsive to the Union's request for
information:
1. Total overtime hours by quarter for 2006 and 2007;
2. OSHA Reports for 2005 and 2006;
3. New Jersey State Reimbursement Reports for 2005 and 2006; and
4. the following department schedules:
a. Dietary Department (12/30/07-5/16/08)
b. Housekeeping Department (12/23/07-4/26/08)
c. Nursing Department (1/6/08-4/26/08)
These are all of the responsive documents in our possession. Additionally, as we
previously stated, there were no agency personnel used by this facility in the requested
time period.
We continue to await dates for continued negotiations at this facility.
McCalla testified that the overtime information provided by Respondent in this letter was
not responsive to its requests for individualized information and, therefore, did not enable the
Union to fully investigate the potential impact the proposed elimination of daily overtime would
have on individual employees.

24 Saint Hilare was available this week as it fell between the convention and his vacation.
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28. On June 10, 2008, the Union Responds to Respondent’s May 28 Submission
On June 10, Saint Hilare sent Jasinski the following reply to his May 28 letter and the
information provided therein:
We received the information accompanying your May 28, 2008 letter. As you know, we
have been seeking this information since April 25, 2007. Your piecemeal production has
greatly impaired our ability to bargain. Further, the information you provided still is not
complete.
I must also point out that since early April, 2008 at Castle Hill bargaining, I requested
updated information for all four facilities. With respect to the documents produced with
your May 28, 2008 letter, the production remains incomplete.
1. Overtime hours: You did not provide overtime hours for each employee as requested
for any of the four facilities. Rather, you provided a total quarterly amount for all
employees, presumably across all bargaining unit job titles for 2006 and 2007. Given the
employer's proposal on the elimination of daily overtime, the receipt of this information is
necessary.
At the April, 2008 session at Castle Hill, we questioned you about your response to our
request for overtime information. We told you the information was necessary given your
daily overtime proposal. You replied that the rough estimate you provided was all that
you had to give us. We need the overtime information for June 1, 2007 through May 31,
2008, as well as for the period stated in the April 25, 2007 request. We also need it in
the form described in our April 25, 2007 letter, i.e., on a quarterly basis for each
employee.
2. OSHA reports: none were provided for 2005 at Harborview.
3. Cost Reports: It does not appear that you provided the complete and final reports as
the copies provided did not contain Schedule H, the provider's certification. In addition,
other pages were missing from the 2006 and 2005 reports for Castle Hill. In my February
14, 2008 letter I also asked you to provide the 2007 reports as soon as they are
prepared by your clients; to date, no 2007 reports have been provided.
4. Schedules: The schedules you provided do not show all individuals who were actually
working on the floors. There are daily schedules in nursing which show on a single page
all individuals who actually work on all shifts on all units. Please provide the daily
schedules for February 1, 2008 through the present. In addition, the LPN schedules for
Harborview were provided only for one month and not even all shifts for that month.
Finally, only about four months of schedules were provided for each of the four facilities.
5. Agency information: You stated in your May 28, 2008 letter that "there were no
agency personnel used by this facility in the requested time period." What do you mean
by requested time period? In your previous correspondence and at bargaining, you
claimed that none of the facilities used agency workers. Are you now saying that agency
workers have been or are being used since March 2007? If so, please provide the
information regarding agency usage, as requested paragraphs 8 and 9 in my April 25,
2007 information letter for all four facilities during the period from March 2007 to the
present time.
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6. No-frills: You have not clarified the contradictory information provided to us on April 1,
2008.
Thank you for your anticipated cooperation.
29. Respondent’s June 17, 2008 Reply to the Union’s June 10 Letter
On June 17, Jasinski wrote to Saint Hilare in response to the assertions made in his
June 10 correspondence:
We are in receipt of your letter dated June 10, 2008. Your response to the information
we provided with our May 28th letter is just as puzzling as your repeated steps to try to
avoid reaching a contract. In our letter, we informed you that we have provided you with
all of the information in our possession. Yet, you insist that our production somehow
"remains incomplete." It is no different than the responses you make at the negotiating
table.
Now, more than ever, it is apparent that the Union has absolutely no interest in using
any of this information for legitimate purposes at the bargaining table. Rather, the
Union's strategy is transparent - to use these information requests to avoid meaningful
bargaining and to try to avoid reaching impasse. Instead of continuing your bad faith
conduct by putting forth irrelevant and harassing information requests, I suggest that you
refocus your energies to engage in meaningful bargaining so that the parties can reach a
contract for the benefit of our employees.
We respond to your specific allegations as follows:
1. The approximate average overtime worked per employee are as follows:
1st Quarter 2006 - 53 hrs
2nd Quarter 2006 - 38 hrs
3rd Quarter 2006 - 73 hrs
4th Quarter 2006 - 50 hrs
1st Quarter 2007 - 63 hrs
2nd Quarter 2007 - 47 hrs
3rd Quarter 2007 - 65 hrs
4th Quarter 2007 - 55 hrs
Moreover, contrary to your assertion, we never proposed to eliminate overtime. To the
contrary, all bargaining unit employees will continue to be paid overtime compensation
on a weekly basis. We stated this at the bargaining table. You continue to try to
manipulate and distort the facts.
2. As you concede, we provided you with all the requested OSHA reports.
3. We provided you with the 2005 and 2006 cost reports in their entirety. We provided
you with these cost reports even though they are typically not considered to be relevant
in negotiations, and you have not demonstrated any need for these documents, as you
must under Board law. Troy Hills Nursing Home, 326 NLRB 1465, n.2 (1998). You claim
that "Schedule H" and other unidentified pages were missing from these reports.
Accordingly, please provide us with the specific reasons why you consider such
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information relevant to the bargaining.
4. We provided you with all the schedules in our possession. We cannot provide them in
a form which does not exist.
5. This facility did not utilize agency personnel from March 2007 through the present.
6. Currently, Castle Hill does not have any employees in the no-frills category. We fail to
understand what "clarification" is needed.
We recognize that you are currently away on vacation. In fact, we know that you have
been unavailable since the end of May. We suggest that you propose dates in July and
August that will not conflict with your schedule.
Thank you.
30. Respondent Declares Impasse and Issues its Final Offer
On July 7, Jasinski sent the Union a letter together with what was characterized as its
final offer, as follows:
We are fast approaching the one-year anniversary of the expiration of the referenced
collective bargaining agreement. Since the expiration of the contract, the Employer met
with the Union and its committee in numerous bargaining sessions. In these sessions,
the Employer responded to the Union's proposals and offered a complete contract
containing terms and conditions as well as addressing all economic issues. The
exchanged proposals and counter-proposals were made on our part in a good faith
attempt to reach an amicable resolution for a new collective bargaining agreement.
These numerous sessions with counter-proposals demonstrate there is a difference of
opinion between the parties on a number of things, including, but not limited to, wages,
health benefits and paid time off. It has been over one month since we last met with the
Union. The Mediator, as well as this office has tried to contact you -- all attempts have
been unsuccessful. It is apparent to us that the Union has shown no interest in meeting
to resolve this collective bargaining agreement and refuses to move from its fixed
positions.
Because of the Union's inactions and unwillingness to modify its proposals, we are at an
impasse. Enclosed, please find the Employer's final offer, which we will implement July
11, 2008. The implementation of this final offer is based on a number of factors
including, but not limited to, the Union's fixed positions in the contract negotiations.
This final offer does not preclude meeting with the Union -- we will. We believe that too
much time has transpired and we do not see any interest by the Union to resolve this
matter. Should you have any questions or want to discuss this matter further, please call
the undersigned.
* * *
FINAL OFFER
CASTLEHILL HEALTH CARE CENTER
and
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SEIU 1199 NEW JERSEY
TERM: Five (5) years, to be effective upon ratification by members.
ELIGIBILITY: Employees who are regularly scheduled and work thirty (30) hours or
more per week shall receive full benefits. The working time shall be
defined as per the Employer's Workweek proposal.
Employees who are regularly scheduled and work twenty (20) hours and
less than thirty (30) hours shall receive benefits on a prorata basis. The
working time shall be defined as per the Employer's Workweek proposal.
WAGES
BONUS: $175.00 - Full time employees
$90.00 - Part time employees
NO-FRILLS: $2.50 per hour above the minimum in the job classification for all
employees who waive all contract economic benefits.
$1.50 per hour above the minimum in the job classification for all
employees who waive all economic benefits with the exception of paid
holidays, sick days, personal, if any, and vacation days.
Twenty-five (25) no-frills positions.
Upon ratification or implementation by the Employer: three percent (3%) increase.
Twelve (12) months after ratification: two and one-half percent (2 ½ %) increase
Eighteen (18) months after ratification: two percent (2%) increase.
Twenty-four (24) months after ratification: three percent (3%) increase.
Thirty-six (36) months after ratification: two percent (2%) increase.
Forty-two (42) months after ratification: two percent (2%) increase.
Forty-eight (48) months after ratification: three percent (3%) increase.
Increases shall not be added to minimums.
New Minimum hiring rates as follows:
CNAs Grade 1
Upon ratification
$8.75 $8.00
Twenty-four (24) months after ratification
$9.25 $8.50
Forty-eight (48) months after ratification
$10.00 $9.00
Employees shall receive the increase to the new minimum or the general increase,
whichever is greater.
EMPLOYEES EMPLOYED PRIOR TO RATIFICATION SHALL RECEIVE THE
FOLLOWING BENEFITS:
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HOLIDAYS: -Eight (8) designated holidays
- Employee's birthday
-Two (2) personal days accrued annually
SICK DAYS: Eight (8) sick days accrued annually
VACATION: CNAs and Grade I
Ten (10) paid days - Upon completion of one (1) year of
continuous employment.
Beginning of sixth (6th) year of continuous employment, eligible
employees begin to accrue fifteen (15) paid days.
Beginning of the sixteenth (16th) year of continuous employment,
eligible employees begin to accrue sixteen (16) paid days.
Beginning of the twenty first (21st) year of continuous
employment, eligible employees begin to accrue seventeen (17)
paid days.
HEALTH INSURANCE:
As provided by the Employer.
PENSION: Two percent (2%) of all eligible full-time covered employees'
wages for hours physically worked, as defined in the Employer's
Pension Article.
LIFE INSURANCE:
Increase to a total of $15,000.00.
1199 TRAINING AND UPGRADING FUND:
One half percent (1/2%) of hours physically worked for eligible
employees for hours physically worked. Eligibility and hours
physically worked are defined as per the Pension Provision in the
Employer's proposal.
UNIFORM: Increase to $3.00 per week for all full-time employees. This
amount shall be pro-rated for eligible part-time employees.
EMPLOYEES HIRED AFTER RATIFICATION:
HOLIDAYS: Eight (8) designated holidays
Employee's birthday
SICK DAYS: Earn one (1) day for every two (2) months of continuous employment.
VACATION: CNAs and Grade 1:
Upon completion of the first (1st) year of continuous employment
five (5) paid days.
Beginning of the third (3rd) year of continuous employment,
eligible employees begin to accrue ten (10) paid days.
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Beginning of the eleventh (11th) year of continuous employment,
eligible employees begin to accrue fifteen (15) paid days.
Beginning of the sixteenth (16th) year of continuous employment,
eligible employees begin to accrue sixteen (16) paid days.
Beginning of the twenty-first (21st) of continuous employment,
eligible employees begin to accrue seventeen (17) paid days.
HEALTH BENEFITS: Same as all other employees.
PENSION: Same as all other employees.
LIFE INSURANCE: Same as all other employees.
UNIFORMS: Same as all other employees.
TRAINING AND UPGRADING: Same as all other employees.
31. The Parties Confirm Subsequent Negotiations
On July 7, 2008, apparently prior to receiving or reviewing the final offer, Saint Hilare
wrote to Jasinski that he had just returned from vacation and had reviewed Jasinski’s June 17
and June 23 letters, written while he had been away. He expressed surprise at Jasinski’s
statements concerning his failure to contact the Employer to propose bargaining dates. He
further stated that he had contacted the mediator, and proposed a series of bargaining dates for
the four Omni facilities. He additionally outlined the information which the Union maintained had
still not been furnished.
On July 10, Jasinski replied that the Respondent would meet with Saint Hilare regarding
Castle Hill on July 17, 2008. With regard to the information sought, Jasinski asserted that the
Employer had given the Union all the information in its possession and further stated that “the
no-frills employees do not apply to this facility.” In this letter, Jasinski characterized the
upcoming meeting as “negotiations.”
32. The Union Responds to Respondent’s Declaration of Impasse and the Final
Offer
On July 11, Saint Hilare sent the following letter to Jasinski:
I received your letter dated July 7, 2008 regarding the final offer for Castle Hill. I sent you
a letter on July 7, 2008 where I proposed bargaining dates on which both the mediator
and I are available.
I dispute in the strongest terms that the parties are at impasse. You continue to fail to
provide all the information requested. Our last bargaining session we asked a number of
questions about the Employer's health plan such as why employees who appeared to be
eligible for health insurance under your proposal were not covered and why deductions
were made from paychecks for "free" dental benefits. You have not responded to those
questions.
Your claim that you are imposing your "final offer" because the Union has been unwilling
to modify its proposals and its "inactions" is preposterous. The Union has repeatedly
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modified its proposals and as recently as at our last session. The proposal I received
today from you was never previously presented. For example, you never had a proposal
for 25 no frills employees. The Union has not had the opportunity to discuss this or the
other parts of your offer with the committee and the Union has a number of questions
about it.
Further, the impact of short staffing at Castle Hill and the increased usage of the agency
employees have become especially acute and I just learned that during my vacation
employees conducted a spontaneous protest over the impossible working conditions and
difficulty in providing patient care that have resulted from understaffing. The Union
bargaining committee has finally had the chance to review schedules that you belatedly
produced on May 28, 2008 (almost a year after they were requested and which remain
incomplete). This information has influenced proposals that the Union intends to discuss
at our next session.
Given that the parties are not at impasse, the Employer's unilateral imposition of your
"final offer" violates its duty to bargain in good faith. Instead of threatening to impose, I
suggest you accept the bargaining date I offered in my letter of July 7, 2008 and
approach the bargaining table with some flexibility so we can finally settle this contract.
Thank you for your anticipated cooperation.
33. The Thirteenth Bargaining Session – July 17, 2008
The parties met again on July 17. At the outset, Saint Hilare asked whether the
Employer had implemented its final offer. Jasinski replied that it had, as of July 13. The Union
informed the Employer that, despite certain references to ratification in the final offer, it would
not be submitted for ratification by employees. The Union then posed a series of questions
regarding certain terms of the final offer relating to part-time employee eligibility for benefits and
the signing bonus; whether the proposed no-frills rate would be above an employee’s current
rate or the minimum rate of pay; why the Employer had raised the allowable number of no-frills
employees from 20 to 25 slots and whether employees working fewer than 20 hours per week
would receive any benefits. The Employer provided the answers to such inquiries. The Union
was informed that the otherwise unexplained reference to the “workweek proposal” referred to
what had been set forth in the compilation document.
The Union representatives argued that the parties were not at impasse and told the
Employer representatives that they had advanced proposals in every meeting, and were
prepared to do so going forward. Saint Hilare noted that the Employer had never responded to
the Union’s October 24, 2007 non-economic proposal.25 Jasinski replied that the Union did not
want a contract; that the only thing they cared about was information and that the Union was
unwilling to move beyond industry standards. The Union responded that even its initial proposal
did not seek such industry standards and that the most recent economic proposal lagged in
years behind the Tuchman Agreement.26

25 Jasinski testified that there was no subsequent discussion of the Union’s October 24
proposal because the Union had insisted that the parties negotiate economics and the parties
did not have further discussions about the language issues.
26 As McCalla explained, the Union’s most recent economic proposal comes to minimums of
$10 for Grade 1 and $11 for CNAs in 2011. In the Tuchman Agreement those rates were
reached in 2008. In addition, the proposed scale for the initiation of dependent health coverage
Continued
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There was a clarification of when part-time employees working between 20 and 30 hours
per week would see their benefits reduced. The Emplolyer clarified that its proposal to raise this
threshold applied prospectively only, and did not affect current employees. The parties then
discussed the difficulties with staffing. Saint Hilare noted that the facility’s employee census had
dropped from 121 to 94 employees and asked why that was the case. Jasinski attributed this to
typical turnover and denied there was a staffing issue. Saint Hilare handed the employer a copy
of the employee roster which had been provided on May 14 which indicated with specificity
those employees who appeared to qualify to receive health insurance and who were not so
designated. Jasinski took the list and told Saint Hilare that the Employer would research the
issue and get back to the Union.
The Union again asked about the facility’s use of agency employees. According to Saint
Hilare, it was at this time that Jasinski acknowledged that the facility had, in fact, used agency
employees and Saint Hilare asked for specific information about such usage. McCalla testified,
and his bargaining notes show, that Jasinski told the Union to put their request in writing. The
Union also relayed complaints from the members about the Employer’s use of students. They
stated that unit employees were complaining that they had to take extra time to train these
workers, as they did with agency employees.
At this point in time, the Union caucused to review the information they had obtained and
consult with the bargaining committee. Upon their return they were informed that, due to a
family emergency, Jasinski would have to leave. As he was leaving, Saint Hilare told Jasinski
that he had a proposal to give the Employer and Jasinski told Saint Hilare to fax it to him. Saint
Hilare testified that he did not do so inasmuch as the Union’s practice is not to conduct
bargaining in the absence of employee participation.
Jasinski offered little testimony about what occurred at this meeting, other than to state
that the Union did not put forth any proposals and to note that the Union brought up subjects,
such as the students, that had not previously been discussed in bargaining.
34. Subsequent Information Requests and Correspondence
On July 23, 2008, Saint Hilare wrote to Jasinski asking for information regarding agency
usage and requesting further bargaining. His letter is as follows:
I am writing to follow-up our discussion on July 17, 2008 during the Castle Hill bargaining
regarding information on agency workers as well as the number of employees who do
not have health insurance coverage. As explained, the Union will need to formulate
proposals. This letter also is a follow-up to the July 7, 2008 regarding the Union's
outstanding information requests for Bristol Manor, Castle Hill and Harborview
bargaining
At the Castle Hill bargaining on July 17, 2007, employer conceded after having
repeatedly denied using agency workers, that agency workers have, in fact, been in
used at Castle Hill to provide temporary staff. Based on that, the Union requests:
_________________________
differs from the Tuchman Agreement insofar as that contract provides for full dependent
coverage, with premiums fully paid by the Employer. The Tuchman Agreement additionally
affords employees greater paid sick leave, vacation and holidays.
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1. Names of all agencies used by the employer to provide temporary staff;
2. Copies of invoices received from each agency showing the names, number of hours
worked, rate(s) billed and job title for each agency employee provided to the employer
during the periods January 1, 2008 through July 22, 2008.
3. At bargaining, Castle Hill also agreed to provide a seniority list of the employees with
explanation on why some employees who are working the required number of hours do
not have health insurance coverage. You recall that at that session, the Union provided
a list of names with question mark beside names for employees who do not have health
insurance coverage.
Please provide the information listed above as well as the outstanding information
described in my July 7 letter. Please also let me know which dates you are available to
bargain for Castle Hill, Harborview and Bristol Manor.
According to the testimony of the Union witnesses, there was no response to this letter.
35. Subsequent Telephone Discussions
Saint Hilare testified that after the parties’ final meeting on July 17, he called Jasinski’s
office on several occasions and spoke with him. As Saint Hilare testified, in one of these
discussions Jasinski asked what the Union was trying to achieve. Saint Hilare replied that the
Union wanted the same things he had stated at the initiation of bargaining, and that they were
not talking about the moon or $20 per hour. Jasinski suggested that the Union forego employer
contributions to the pension and alliance funds. Saint Hilare replied that he could not bargain
with Jasinski on the phone, requested that he come to the table and stated that the Union had a
proposal to make. Jasinski told Saint Hilare to send it to him. Saint Hilare told Jasinski that he
would not do that and that he would not bargain with Jasinski in the absence of the members.
Saint Hilare testified that at the time of the July 17 meeting, the Union had a written proposal to
present, but had not yet shown it to the members. He had planned to discuss this proposal at a
caucus and then bring it to the Employer, but the meeting ended before he could do so. When
asked whether anything prevented the Union from caucusing with the bargaining committee and
discussing that proposal with Respondent after Gold and Jasinski left the meeting, Saint Hilare
replied: “As I mentioned to you, we haven’t done that and bargaining face-to-face as we always
do. So why should we do it now, especially when management put the final offer on the table,
we have so many details, so many questions, why should I do that by phone, why should I do
that?” Saint Hilare then testified that he asked Jasinski for an “off the record” meeting and
Jasinski initially assented but when he found out who would be present, declined to meet. In
other respects, as Saint Hilare testified, Jasinski never expressly refused to meet, he simply did
not respond to the Union’s requests for additional bargaining dates.
C. Stipulations and Other Evidence as to Changes in Terms and Conditions of Employment
At the hearing, the parties entered into certain stipulations regarding the implementation
of Respondent’s final offer. In particular, the parties stipulated that the Employer stopped paying
daily overtime; that there was a partial implementation of a unform allowance as to certain
employees and a no-frills system consistent with the final offer was implemented. In addition,
Jasinksi testified that the Employer has given its employees the wage increases set forth in the
final offer and that Respondent advised the Union that the terms relating to health insurance
eligibility would be implemented prospectively, and that no part-time employee currently
receiving such benefits would lose them.
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D. The Alleged Failure to Remit Pension Contributions
1. The Amendment to the Complaint
The charge in Case No. 22-CA-28152, as originally filed on December 3, 2007, alleges,
in relevant part, that: “Since in or about July, 2007, the above named Employer . . delayed,
failed and refused to furnish information to the Union necessary to collective bargaining
negotiations.”27
On April 9, 2009, the Union amended that charge to add the following allegation: “Since
in or about July 2007, the above-named Employer unilaterally failed to make pension fund
contributions without notifying or bargaining with the Union.” The regional office mailed the
amended charge to the Respondent and its counsel of record on April 10, the following day.
Following an investigation which was conducted during the course of the procedings in this
matter, on May 22, 2009, Counsel for the General Counsel moved to amend the complaint to
allege that since on or about February 1, 2007, the Respondent unilaterally refused and failed to
make pension fund contributions without notifying or bargaining with the Union.
At the hearing Respondent objected to the proposed amendment, arguing that it was
barred by the Section 10(b) statute of limitations and that it was predicated on a different theory
from the original charge. In its brief, Respondent raises certain additional defenses to the
proposed amendment. In particular, Respondent argues that only the SEIU National Industry
Pension Fund (the Fund) has standing to raise such a claim and that the Fund is neither a party
to the charge nor to the collective-bargaining agreement. In this regard, the Respondent argues
that the Union has no right to raise this claim on behalf of the Fund. Respondent additionally
denies the material allegations of the amendment.
At the hearing, I granted General Counsel’s motion to amend the complaint. The
evidence adduced with respect to this allegation consisted primarily of the testimony of Betsy
Blount, who has been employed by the Fund since 2000 in various positions, together with
certain documentary evidence which was maintained in the Fund’s files, as will be discussed
below.
2. Background
By letter dated November 22, 2002, the Union’s then-attorney, Richard M. Greenspan,
forwarded to the Fund a copy of the pension appendix executed by the parties in conjunction
with the 2002 MOA. Beginning in about August 2002, contributions were remitted. However,
payments for employees of Respondent were made by three entities. Castle Hill made
contributions for the dietary employees of the facility. Contributions for the certified nurses aides
were drawn on the checks of an entity called Healthcare Staffing & Consultants, LLC
(Healthcare). Contributions on behalf of the recreation employees were drawn on the checks of
Sunshine Recreation, LLC (Sunshine).
Some four years later, on November 5, 2006, SEIU international representative Larry
Alcoff sent an e-mail to Fund collections manager Jack Salm about remittances for the Castle

27 There is another allegation, contained in the charge as filed in December 2007, that the
Employer falsely presented to the Union a document purporting to represent existing terms and
conditions of employment, which is not a subject of the instant complaint.
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Hill employees:
Jack,
I want to follow up on the list of pension issues in NJ that we discussed on the phone
last week:
Omni Mgmt group (Castle Hill, Bristol Manor, Palisades and Harborview) -The Employer
is a party to 4 separate CBA’s with the Union. The Employer has made contributions for
the past 4 years pursuant to those CBA’s; however the Pension Fund failed to deposit
those checks. The Employer provided a letter to the Pension Fund over 1 year ago
stating that the nursing homes were the parties to the agreement and the Employer. The
Pension contributions were made by their contracted payroll operations. We requested
that the Pension Fund deposit all checks and give members appropriate service and
vesting credit.
We have not received any reports or copied correspondence (whether to the Employers
or legal documents) to date. Please reply.
On November 8, 2006, Sahm replied to Alcoff’s e-mail with the following inquiries:
In item three of your e-mail, you mention Omni Management Group. The checks we
have are from Healthcare Staffing & Consultants LLC and Sunshine Recreation, LLC. A
couple of questions-
1. Who are the CBA’s with – Omni Management Group or the individual properties?
2. Please forward copies of the four (4) CBA’s that you mentioned in your e-mail
3. Is Heathcare staffing now out of the picture?
As for item 2 of your e-mail, we are in the process of putting toether all of the information
for our Collection Counsel. We will keep you apprised of all developments.
Later that day, Alcoff replied:
We will send you the 4 most recent MOUs with Bristol Manor, Harborview, Palisades
and Castle Hill. Healthcare Staffing is not relevant.
There is no record evidence of any further communications between Alcoff and Sahm
regarding these matters.
3. The Alleged Failure to Remit Contributions
In May 2007, Blount was promoted to the position of Fund collection manager. 28 Prior to
that time she served as an assistant manager in the Fund’s processing department. As Blount
testified, after an employer and a local union execute a collective-bargaining agreement, the
contract is submitted to the Fund for final approval to ascertain that it conforms to Fund
requirements and is then submitted to Fund counsel for final approval. Once such approval is
granted, the collection department establishes a computer file with an employer number and site
number. If the contract is not approved, it is returned to the parties with a letter indicating the

28 She currently serves as the Fund’s benefits processing manager.
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language necessary for compliance with Fund requirements.
Blount testified that after she became collection manager, she was assigned to
investigate a group of checks that the Fund did not have contracts for and determine who they
belonged to. These were checks drawn on the accounts of Healthcare and Sunshine. As Blount
testified, because Healthcare and Sunshine were not parties to collective-bargaining
agreements, files had not been created for them in the Fund computer database and they were
not recognized as employer participants.
Thereafter, the Fund trustees determined that, inasmuch as Healthcare and Sunshine
were not parties to collective-bargaining agreements authorizing the Fund to accept their
contributions, the remittances should be returned. Accordingly, on October 10, 2008, Blount
wrote separately to Healthcare and Sunshine as follows:
Please find enclosed checks issued by [Healthcare] [Sunshine] for the period of August
2003 through January 2007.
Unfortunately, the SEIU National Industry Pension Fund (NIPF) has been unable to
process these payments because we have not reveived a signed copy of the Collective
Bargaining Agreement (CBA) between [Healthcare] [Sunshine], and SEIU Local 1199 NJ
which requires contributions to the fund. The NIPF has made numerous attempts to
Local 1199NJ to obtain a signed copy of the CBA, which have been unsucessful.
In accordance with a recent Board of Trustee decision, to return contributions to
employers without an acceptable CBA on file with the Fund within 6 months or more
after the receipt of the first contribution payment, we are returning and refunding all
checks that have been received from [Healthcare] [Sunshine]. In addition, most of the
checks are older than 6 months and would have to be reissued upon receipt of the
acceptable CBA.
Please be advsied that we will not accept any future payments from [Healthcare]
[Sunshine] until we receive an acceptable signed copy of the CBA. Lastly, please keep
in mind that once an acceptable CBA is received late fees and interest wil be assessed
on contribution payments older than 30 days.
A copy of this letter was sent to the SEIU Local 1199NJ President Milly Silva.
As Blount testified, after this letter was sent, Silva and Union attorney Ellen Dichner
contacted her to discuss why the Fund had decided to return the contributions from Healthcare
and Sunshine. A conference call was scheduled on two prior occasions, but did not occur until
February 9, 2009.
On February 9, a telephonic conference call was held among Blount, Silva, Dichner and
other Fund personnel. Blount explained that the Fund did not have signed contracts with
Healthcare and Sunshine and that therefore, the pension contributions were returned to these
vendors. Silva and Dichner maintained that the local union had sent a copy of the most recent
contract (the 2002 MOA) for Castle Hill and urged the Fund to search their files for the
document.
Blount testified that at that point she undertook an investigation and learned that
Healthcare and Sunshine had been contributing for CNAs and recreation employees,
respectively, at Castle Hill. She additionally learned that both Healthcare and Sunshine had
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ceased making contributions to the Fund as of January 2007.29
The last check sent by Healthcare, dated May 9, 2007, is for contributions applicable to
January of that year. Similarly the last check sent by Sunshine, dated May 8, 2007, is for
January 2007 contributions to the Fund. Both checks are attached to rosters of covered
employees which reference the Employer by name. For example, the relevant attachment to
the Sunshine check bears a caption which reads: “JAN 2007 UNION REPORT CASTLEHILL
SUN.” 30 Similarly, attached to the Healthcare check was an employee roster entitled: “JAN
2006 UNION REPORT CASTLEHILL HSC.”31 Blount offered no explanation as to why these
reports would not have, or did not, assist the Fund in ascertaining which employees the
contributions were being made on behalf of. Indeed, when questioned by Counsel for the
General Counsel, she offered the following seemingly contradictory and, frankly, confusing
testimony:
Q: [by Counsel for the General Counsel]: And after you sent out [the October 10,
2008 letter] – Let me ask it this way. When did you find out what employees
Health Care Staffing was contributing for:
A: Once we received their reports.
Q: And when was that?
A. 2007. The end of 2007.
Blount later testfied as follows:
Q: And prior to February 2009, did you know the employees that Sunshine
Recreation was contributing for?
A: Only based on the report that we had back from January 2007.
Q: Did you know whether Sunshine was contributing for any – Prior to February, did
you know whether or not they were contributing for any employees of Castle Hill?
A: No.
At some point after the February 2009 conference call, the Fund advised the Union that
the Employer had ceased making contributions after January 2007. The Union was further told
that the Fund had reversed its decision to refund contributions to Healthcare and Sunshine and
that both vendors would be set up in the Fund’s system pursuant to the 2002 MOA.
On April 9, Fund collection manager Miriam Gibbs wrote to Healthcare and Sunshine
advising them as follows:
A letter was sent to you dated October 10, 2008, notifying you that the SEIU National
Industry Pension Fund was unable to process your payments due to non receipt of a

29 Blount offered no explanation of why she did not become aware of this in October 2008,
when she returned the remittances to Healthcare and Sunshine.
30 The date in question originally read 2006, but was crossed out and 2007 written in.
31 The designation of 2006 appears to have been an error.
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signed collective bargaining agreement. . .
We have subsequently received signed collective bargaining agreements, enabling the
Fund to properly setup your account. The initial date of contribution is September 1,
2002. Contributions are presently due for September 1, 2002 through March 31, 2009.
Additionally, remittance reports are due for the following periods: September 2002
through July 2003 and January 2007 through March 2009.
Although the National Industry Pension Fund will accept the collective bargaining
agreement for the term of July 25, 2002 thorugh July 24, 2007, any new agreements
requiring contributions to the National Industry Pension Fund must adhere to the terms
of the enclosed Bargaining Basics Manual. For example:
1. Pension contributions are required on all bargainining unit employees from date
of hire or no later than 90 days of employment and all other employees (such as
temporary, casual, on-call, extra, seasonal and no frill) are covered after 1,000 hours of
employment.
2. The CBA must specify the pension contribution rate as a flat dollar amount or a
percentage of pay. The minimum contribution rate is $0.15 per hour for all new contracts
and renewals with effective dates after July 1, 2004.
3. The CBA must clearly state that the pension contributions are to be remitted to
SEIU National Industry Pension Fund.
4. All employers must agree to be tound by the NIPF Trust Agreement.
There was no response to these letters.
III. Analysis and Conclusions
A. The Alleged Failure to Provide Information
The complaint alleges and General Counsel contends that the following information
sought by the Union is presumptively relevant or, alternatively, that its relevance has been
demonstrated: documents showing overtime hours worked by bargaining unit employees on a
quarterly basis in 2006 and 2007, 32 the names of no-frills employees, the names of agencies
used by Respondent for temporary staff and copies of invoices showing names, number of
hours worked, rates billed and job titles for each agency employee, copies of work schedules,
OSHA injury and illness reports for 2005, 2006 and 2007, copies of Medicaid cost reports for
2005 and 2006 and per-employee monthly premium cost for employer-funded single health
insurance. The General Counsel further contends that, since October 19, 2007, the Employer
has either failed and refused or unlawfully delayed in providing such information to the Union.
As discussed in further detail below, Respondent contends that it sufficiently complied with the
Union’s information requests to allow it to meaningfully bargain and that the Union’s repeated

32 The complaint additionally alleges a failure or delay in providing documents showing
“regular hours of work.” Neither the General Counsel nor the Union make reference to any such
allegation other than the alleged failure to provide employee work schedules, which is discussed
below.
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requests were interposed in bad faith, for the purpose of delay and to forestall a valid bargaining
impasse.
1. Applicable Legal Principles
It is well-settled that an employer’s duty to bargain in good faith with the bargaining
representative of its employees encompasses the duty to provide information needed by the
bargaining representative to assess proposals and claims made by the employer relevant to
contract negotiations. NLRB v. Acme Industrial Co., 385 U.S. 432, 435-436 (1967). NLRB v.
Truitt Mfg. Co., 351 U.S. 149, 153 (1956).
Information pertaining to the terms and conditions of employees in the bargaining unit is
presumptively relevant, and must be provided upon request, without need on the part of the
requesting party to establish specific relevance or particular necessity. Iron Workers Local 207
(Steel Erecting Contractors), 319 NLRB 87, 90 (1995). In such an instance, the employer bears
the burden of showing a lack of relevance. AK Steel Co., 324 NLRB 173, 183 (1997); Samaritan
Medical Center, 319 NLRB 392, 397 (1995). Moreover, a union may rely upon the presumption
of relevance of information pertaining to employees within the bargaining unit and has no further
obligation to explain its significance, unless and until the employer establishes legitimate
affirmative defenses to the production of the information. Beverly Health and Rehabilitation
Services, 346 NLRB 1319, 1326 (2006); River Oak Center for Children, 345 NLRB 1335, 1336
(2005). See also Quality Building Contractors, 342 NLRB 429, 430 (2004) quoting
Commonwealth Communications, 335 NLRB 765, 768 (2001): “When a union seeks information
pertaining to employees within a bargaining unit, the information is presumptively relevant to the
union’s representational duties, and the General Counsel may establish a violation for the
employer’s failure to furnish it without any further showing of relevancy.”
Requests for matters outside the bargaining unit require a demonstration of relevance.
Shoppers Food Warehouse Corp., 315 NLRB 258, 259 (1994); Ohio Power Co., 216 NLRB 987,
991 (1975), enfd. 531 F. 2d 1381 (6th Cir. 1976). The Board uses a broad, discovery-type
standard in determining the relevance of requested information. Thus, the burden is not an
exceptionally heavy one, requiring only that the desired information would be of use to the party
in carrying out its statutory duties and responsibilities. Certco Distribution Centers, 346 NLRB
1214, 1215 (2006); Shoppers Food Warehouse, supra; Richmond Health Care, 332 NLRB
1034, 1035 (2000)(potential or probable relevance is sufficient to give rise to an employer’s
obligation to provide information). A party has satisfied such a burden when it demonstrates a
reasonable belief supported by objective evidence for requesting the information. However, the
Board has also held that, as to non-unit information for which relevance must be demonstrated,
the General Counsel must present evidence either that the union demonstrated the relevance of
the non-unit information or that the relevance of the information should have been apparent to
the respondent under the circumstances. Disneyland Park, 350 NLRB 1256, 1258 (2007). The
Union’s explanation of relevance “must be made with some precision; and a generalized,
conclusory explanation is insufficient to trigger an obligation to supply information.” 350 NLRB at
1258 fn. 5 (citations omitted).
The duty to furnish information requires a reasonable good-faith effort to respond to the
request as promptly as circumstances allow. Good Life Beverage Co., 312 NLRB 1060, 1062 fn.
9 (1993). “An employer must respond to the information request in a timely manner” and “[a]n
unreasonable delay in furnishing such information is as much of a violation of Section 8(a)(5) as
a refusal to furnish the information at all.” Amersig Graphics, Inc., 334 NLRB 880, 885 (2000);
see also Newcor Bay City Division, 345 NLRB 1229, 1237 (2005) (and cases cited therein).
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With regard to the Union’s information requests generally, Respondent argues that the
Union propounded such requests on Castle Hill for reasons other than to move the bargaining
process forward. In particular, Respondent argues that the Union’s information requests were
made to avoid meaningful bargaining and in a futile attempt to avoid reaching impasse. In
support of this argument, Respondent contends that the Union repeatedly demanded
information which had already been received, which was readily attainable or wholly
unnecessary to the bargaining process. Respondent notes that the Union was able to, and did,
make its initial “comprehensive” proposal relying on the information already within its
possession, and did not require any further information prior to putting forth subsequent
proposals. Respondent additionally argues that it sufficiently complied with the Union’s repeated
information requests, that it provided information to the Union on no fewer than eight occasions
and, further, that any limited delay in providing information is not unlawful.
In support of its contentions, Respondent relies upon ACF Industries, 347 NLRB 1040
(2006). There, the Board found that the union’s information request was purely tactical and
submitted solely for delay and to avoid impasse where the union requested the information after
months of extensive bargaining, after the contract’s expiration, after the union’s rejection of the
employer’s final offer, and after the respondent declared it had nothing left to offer.33 By
contrast, here, the initial information request was made prior to the expiration of the 2002 MOA
and before bargaining commenced. Moreover, here the Union reiterated its requests throughout
bargaining, well prior to Respondent’s declaration of impasse and final offer. Similarly, in Sierra
Bullets, 340 NLRB 242, 244 (2003), also cited by the Employer, the Board concluded that the
pendency of an information request relating to an overtime proposal did not preclude a finding of
impasse where the information request was not made until the 17th bargaining session, the
proposal had not been made until the 16th session, the parties had been previously
concentrating primarily on other core issues in bargaining and there was no convincing
argument that the information would have broken a deadlock over these other core issues.
Again, the circumstances in Sierra Bullets are not similar to those involved here, where, as both
Saint Hilare and McCalla testified, the Union sought information throughout the bargaining
process which was directly tied to proposals or anticipated counterproposals regarding such
matters as the proposed elimination of daily overtime, a proposed increase in the allowable
number of no-frills employees, staffing levels, medical insurance and the health and safety of
employees in the workplace.
Respondent argues that the circumstances of the instant case are “strikingly similar” to
those presented in United Engines Inc., 222 NLRB 50, 55-56 (1976). There, the respondent was
charged with a delay in transmitting certain relevant data which the union sought in connection
with bargaining negotiations until it was informed that the union had filed unfair labor practices
with the Board. The administrative law judge found that the respondent had not violated the Act.
In that case, the respondent never raised any objection to disclosure of the information sought
by the union, characterized as “copious” and provided the bulk of it within one month of the
Union’s request. The only outstanding item was the information related to the employer’s
retirement plan, which the respondent said would covered in a booklet and provided as soon as
it was received. The booklet was then provided. Thereafter, as the judge found, the respondent
“invited further requests” by the Union for additional information. Once such requests were
made, the information was promptly furnished. 34

33 The Board additionally found that the parties had reached a good-faith impasse, and the
union showed no interest post-implementation bargaining.
34 In support of its contention that any delay in providing the Union with information was not
unlawful, Respondent also relies upon Good Life Beverage Co., supra and Union Carbide
Continued
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In the instant case, while it appears that the Union did request a great deal of information
from the Employer initially, and subsequently, there is no specific evidence that any alleged
delay in providing information was due to the volume of that request, or Respondent’s need for
time to assemble it or receive documentation relative to such demands. Moreover, the record
fails to establish that Respondent raised such objections to the Union. Nor has Respondent
propounded such an argument here. Rather, as set forth above, Respondent consistently took
the position either that it had fully complied with the Union’s request or that the information
sought was unnecessary for the Union to bargain.
As the above-cited cases demonstrate, Respondent is not empowered to make a
unilateral determination that presumptively or otherwise relevant information sought by the
Union is unnecessary or irrelevant to bargaining or the performance of the Union’s statutory
duties. To the contrary, Respondent’s arguments in this regard are unavailing. Had the
information sought by the union been provided in a timely fashion, it is reasonable that it could
have been used to determine strategy and tactics in the negotiations: “Priority of issues,
consideration of bargaining strategy as to trade-offs of economic and non-economic issues,
even the nature and extent of the bargaining posture on the various issues might well have
been impacted upon by such information and the need therefore would be current and present
throughout the negotiations.” Bryant & Stratton Business Institute, 321 NLRB 1007, 1014
(1996). Moreover, as the courts have noted, the fact that a contract has been negotiated without
the requested data does not render the information not relevant. See NLRB v. Fitzgerald Mills
Corp., 313 F.2d 260, 266 (2d Cir. 1963); cert denied, 375 U.S. 834. In NLRB v. Yawman & Erbe
Mfg. Co., 187 F.2d 947, 949 (2d Cir. 1941), the court stated:
Nor is our determination that the information was relevant affected by the subsequent
execution of a contract without disclosure. The most that can be inferred from the
Union’s action is that the advantages of a contract in hand outweigh those which the
Union might later obtain when all relevant information would be available to it.35
With the foregoing standards in mind, I will now evaluate the various information
requests made by the Union and the Respondent’s responses thereto.
2. Overtime Hours Worked by Each Employee on a Quarterly Basis
_________________________
Corp., 275 NLRB 197 (1985). In Good Life Beverage Co., the Board found that a five and one-
half month delay in providing information was not unlawful where the information sought raised
confidentiality concerns and the employer sought to discuss the matter to reach an
accommodation with the requesting union for mutually agreeable protective conditions. Here,
Respondent has pointed to no such circumstances. In Union Carbide, which dealt with a delay
of over ten months, there was no showing that the requested information, which was
voluminous, could have been produced any sooner, that there was any urgency in fulfilling the
request and that it involved a matter currently or forthcoming in any negotiations between the
parties.
35 Moreover, as the forgoing Board precedent makes clear, the Union is entitled to
information not only to assist it in contract negotiations, but in connection with a full range of
statutory duties. Thus, even if I were to find that the Union could bargain without the information
it sought, that would not be dispositive of Respondent’s obligation to furnish it in a timely
manner, particularly insofar as the information relates to bargaining unit employees.
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From the outset, even prior to the initiation of bargaining, the Union sought information
showing the overtime hours for each employee on a quarterly basis for the years 2006 and
2007. Information regarding employee overtime has been found to be presumptively relevant.
U.S. Information Services, 341 NLRB 988 (2004) (citing Blue Cross & Blue Shield of New
Jersey, 288 NLRB 434, 436 (1988) (total hours and overtime hours worked “by each unit
employee” is presumptively relevant). In its July 27, 2007 and January 28, 2008 letters,
Respondent claimed it provided such information. The record establishes, however, that no
overtime information was provided to the Union until April 1, 2008, where it was stated that, “It is
fair to estimate that overtime hours typically [range] from 100-300 hours per week over the
previous year.” The Union then advised Respondent that that was not the information which had
been requested. Thereafter, on May 28, 2008, Respondent provided total overtime hours for
each quarter of 2006 and 2007 but did not provide the information for each employee. On June
10, the Union reiterated its request for “overtime hours for each employee.” On June 17, 2008,
Respondent responded with the “the approximate average overtime worked” by employees for
each quarter of 2006 and 2007.
Aside from its presumptive relevance, it is clear from the record that such information
took on additional significance in light of the Employer’s proposal to eliminate daily overtime.
Thus, the Union has shown that this information was relevant and necessary to enable it to
determine the impact the Employer’s workweek proposal would have on the bargaining unit,
both in relation to individual employees and to the unit as a whole.
I note that Respondent has advanced no argument that providing this information would
have been unduly burdensome or that it did not exist. Rather, it is apparent that Respondent did
maintain such information inasmuch as it was able, in May 2008, to provide overtime hours for
each quarter of 2006 and 2007 for the bargaining unit as a whole, and compute average
overtime hours thereafter. In short, Respondent has advanced no convincing rationale for its
continuing refusal to provide such information. Accordingly, I find that by failing and refusing to
provide the Union with overtime hours worked by each bargaining unit employee on a quarterly
basis in 2006 and 2007, as alleged in the complaint, Respondent has violated Section 8(a)(1)
and (5) of the Act.36
3. The Identification of No-Frills Employees
In its letters of April 25 and October 19, 2007, the Union requested that the Employer
identify all no-frills employees.37 On January 29, 2008, Jasinski wrote that the information had
already been provided. On April 1, 2008, Respondent told the Union that there were no such
employees in that category. Thereafter, on May 14, 2008, the Employer provided an updated
employee list to the Union. That list named one employee as a no-frills employee. The
employee roster additionally showed that this employee had been hired on October 9, 2006, so
a question may fairly be raised as to whether Jasinski’s response on April 1 was mistaken or
false. I note that Respondent has failed to explain why it had previously told the Union that there
were no no-frills employees when one was apparently on its payroll. Thereafter, in its letter of
June 17, 2008, Respondent continued to maintain that there were no employees in the no-frills
category. Thus, the information provided to the Union on this issue was contradictory, at best.

36 Saint Hilare’s June 10, 2008 letter updates this request for the period from June 1, 2007
to May 31, 2008. There is no evidence that the overtime information for this time period has
been provided.
37 This request had also been set forth in the Union’s April 25, 2007 information request.
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The issue of whether bargaining unit employees have agreed to forfeit contractual
benefits in exchange for an increased wage rate, and who has agreed to do so, is presumptively
relevant. Moreover, the record demonstrates that the issue of whether there were no-frills
employees was related to various matters under consideration during negotiations. As noted
above, the Employer had proposed increasing the limit on such employees from 10 to 20. As
both Saint Hilare and McCalla testified, the Union had questions about why this proposal had
been made if, in fact, no employees were currently in the no-frills category. Moreover, the
employee rosters given to the Union during bargaining indicated that a number of employees,
significantly in excess of 10, did not have health insurance. At the April 19 bargaining session
the Union sought to review the most recent employee roster. At that time, according to Saint
Hilare, a number of employees without insurance appeared to have the necessary hours and
tenure to qualify. In response, the Employer offered generalized, speculative responses as to
why employees might not have health insurance.
Thus, the record establishes that the Employer responded to the Union’s October 19,
2007 information request on April 1, 2008. As an initial matter, there is at best an apparent and
unexplained delay of over five months in responding to the Union’s request for information
regarding this matter.
Even assuming, however that Respondent had told the Union at an earlier point in time
that the facility did not have any no-frills employees,38 the record demonstrates that such
information was incorrect. Accordingly, I find that Respondent delayed and then failed to provide
accurate information regarding the no-frills status of its employees in violation of the Act.
4. The Use of Agency Employees
The Union’s April 25 and October 19, 2007 letter sought the names of all agencies used
by the Employer to provide temporary staff and invoices showing the names, number of hours
worked, rate(s) billed and job title for each employee provided to the Employer during the period
from January 1, 2006 through March 31, 2007. The Union reiterated its request for information
regarding the use of agency employees on several occasions thereafter.39 The Union had
anecdotal evidence, coming from employees, that agency workers were being used during the
period of time the parties were bargaining. Saint Hilare made reference to this anecdotal
information in his February 14, 2008 letter to Jasinski. Such hearsay evidence is sufficient to
support an information request. Magnet Coal, Inc., 307 NLRB 444 fn. 3 (1992), enfd. mem. 8
F.3d 71 (D.C. Cir. 1993). The record further establishes that at a bargaining session on March
13, 2008, Saint Hilare informed Respondent that the Union was aware that the Employer was
using agency employees.
According to McCalla and Saint Hilare, the Employer had repeatedly denied using
agency workers. Moreover, In correspondence dated January 29, 2008, Jasinski stated, “The
facility does not utilize any agencies to provide temporary staff.” This assertion was disputed by
Saint Hilare in his February 14 letter where he maintained that the Union had information from
its members that agency employees were being used. Then, on April 1, 2008 Jasinski wrote:
“Agency Usage: None as of April 1, 2008.” On June 17, 2008 Jasinski advised the Union, “This
facility did not utilize agency personnel from March 2007 through the present.” According to the

38 Jasinski offered generalized testimony that he repeatedly told the Union that there were
no no-frills employees and the Union did not believe him. Respondent has pointed to no specific
evidence as to any such representation, however, prior to the April 1, 2008 letter.
39 February 14, April 9, June 10, July 7 and July 11, 2008
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Union, it was only when the parties met on July 17, 2008, after the final offer was implemented,
that Respondent acknowledged that the facility had used agency workers.40 On July 23, Saint
Hilare then made a further written request for specific information which, to date, has not been
replied to.
The information requested is clearly relevant to the Union’s concerns, as bargaining
representative, of the nature and extent of the use of workers outside the unit who are being
used to supplant the unit work force. Lenox Hill Hospital, 327 NLRB 1065, 1098-1069 (1999).
Information concerning the identity of such workers, their classifications, wages and the length
of time employed at the facility are relevant to determine what Respondent was willing to pay for
temporary employees to perform the same work as that performed by unit employees. Similarly
information regarding the names of the agencies used by Respondent is relevant as it provides
an independent basis for the Union to conduct an investigation regarding the extent to which
unit work is being supplanted.41 Moreover, the relevancy of such information would have been
apparent to the Respondent, and I note that Respondent has never contended otherwise.
Respondent has argued that it provided the Union with the necessary information
regarding agency usage and that it complied with the Union’s written request which sought such
information for a limited period of time, i.e. January 1, 2006 through March 31, 2007.
Respondent additionally argues that any further requests were made in bad faith and that the
Union’s failure to file a grievance regarding agency usage demonstrates that this issue was of
no relevance to contract negotiations.
While it is the case that the Union’s initial request for invoices showing the name, work
hours, compensation rate and job title of each agency employee was for a particular period of
time, the record shows that the Union subsequently sought updated and contemporaneous
information, including the names of agencies used to provide temporary employees.42
Moreover, Jasinski’s various responses to the Union demonstrate that he understood that to be
the case.43 Moreover, the record contains testimony regarding these continuing demands for
information as well as the responses offered by Respondent. Thus, I find that the issue of the
Respondent’s continuing failure to provide such information was fully litigated at the hearing.
See Pergament United Sales, Inc., 296 NLRB 333 (1989), enfd. 920 F.2d 130 (2d Cir. 1990).
Further, Respondent’s arguments pertaining to the Union’s failure to file grievances

40 I do not credit Jasinski’s testimony that he told the Union in about November 2007 that
due to a threat of a work stoppage the facility had contracted agency employees. The weight of
the evidence, including the written communications between the parties, does not support this
testimony, but rather refutes it. Moreover, I do not believe that the Union would have simply
accepted Jasinski’s representations at face value without documenting them and immediately
demanding further information of the sort outlined in its October 19, 2007 letter.
41 As McCalla and Saint Hilare testified, the use of agency employees is additionally related
to the whether the facility is properly staffed. Their testimony that the Union brought employees’
complaints about staffing to the Employer’s attention is unrebutted.
42 See, for example, Saint Hilare’s letters of June 10 and July 23, 2008. In addition, the
record establishes that Saint Hilare raised the issue of the current use of agency employees at
the bargaining table.
43 As noted above, on January 29, 2008 Jasinski wrote that the facility “does not” utilize
agencies to provide temporary staff; On April 1, Jasinski wrote “None as of April 1, 2008,” and
on June 17, Jasinski advised the Union that the facility did not utilize agency personnel “from
March 2007 through the present.”
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regarding agency usage are unavailing. At all relevant times there was no collective-bargaining
agreement in effect and, moreover, there is no evidence that the use of agency personnel is
contractually proscribed.
Apart from the hearsay evidence offered by McCalla and Saint Hilare regarding
Respondent’s use of agency employees, General Counsel adduced independent, probative
evidence to show that the facility employed agency personnel from October 2007 to April 2008,
a period of some six months during which the parties were bargaining and this issue was
repeatedly raised by the Union. During this period all of the representations made by
Respondent were contrary to the actual practice occurring at the facility. Accordingly, I find that
Respondent’s continuing failure to provide accurate information regarding the use of agency
employees as requested by the Union on October 19, 2007, and at various times thereafter,
constitutes an unlawful failure to provide information in violation of Section 8(a)(1) and (5) of the
Act.
5. Work Schedules
The complaint alleges that the Employer failed and refused or, alternatively, delayed in
providing employee work schedules to the Union. In his April 25 and October 19, 2007 letters,
and at various other times throughout bargaining, Saint Hilare requested such information for
the periods of October through December 2006 and January through March 2007. In letters
dated January 29 and February 20, 2008, Respondent did not dispute that such schedules were
maintained and stated that they would be provided under separate cover. Both McCalla and
Saint Hilare’s bargaining notes show that the Union also raised the issue at the bargaining
session on April 9, 2008 and stated that the request was related to the issue of overtime.
Subsequently, on May 28, 2008, Respondent provided the work schedules for the dietary,
housekeeping and nursing departments for the period beginning in late-December 2007 and
continuing through April 2008.44 Saint Hilare responded that the submission was not fully
responsive to the Union’s request and did not show all individuals actually working on the floors.
Saint Hilare also made an additional request for the daily schedules for February 1, 2008
through the present. On June 17, 2008 Jasinski wrote that the Employer had provided the
Union with all the schedules in its possession and that it could not provide the information in a
form which does not exist.45
Such information, as it relates to bargaining unit employees, is presumptively relevant.
Wayneview Care Center, 352 NLRB 1089, 1115 (2008). Moreover, it is relevant to the Union’s
investigation of employee complaints regarding staffing and agency usage and would be of use
to the Union in effectively generating and bargaining over proposals such matters. Respondent
has failed to explain the delay in providing these schedules to the Union, or to offer any valid
explanation of why it could not fully comply with the Union’s initial request for their production.
Accordingly, I find that Respondent has unlawfully delayed and refused to provide the Union
with work schedules of bargaining unit employees, as alleged in the complaint.
6. OSHA Injury and Illness Records
The Employer maintains OSHA records which document on the job injuries and

44 Schedules for the dietary employees were provided through mid-May 2008.
45 Both the General Counsel and the Union contend that Jasinski’s assertion that the facility
did not maintain schedules in the form sought by the Union is false, but I find that this issue is
not sufficiently addressed by the record for me draw such a conclusion.
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illnesses. On October 19, 2007, the Union requested copies of such records for 2005, 2006 and
2007. In his January 29, 2008 letter, Jasinski stated that the facility did not maintain such
records. At the hearing, Jasinski acknowledged that this statement had been made in error. The
Union’s request for OSHA logs was renewed in Saint Hilare’s letter of February 14, 2008.
Thereafter, on April 1, Respondent provided the log for 2007. On April 9, 2008, Saint Hilare
reiterated the Union’s request for years 2005 and 2006. Those records were provided on May
28.
As the Board has found, workplace safety is a mandatory subject of bargaining. See
Kohler Mix Specialties, 332 NLRB 631, 632 (2000). Accordingly, the Board has found that
OSHA logs and other health and safety information is presumptively relevant. Honda of
Hayward, 314 NLRB 443, 451 (1994). Moreover, Saint Hilare and McCalla testified that such
records would be of assistance to the Union in formulating its health and safety proposal.
Respondent has failed to rebut the presumption that this information is relevant or to offer any
valid explanation of why it failed to provide such information to the Union for more than six
months. Accordingly, I find that Respondent unlawfully delayed the production of OSHA logs for
2005, 2006 and 2007, as alleged in the complaint.
7. Medicaid Cost Reports
On October 19, 2007 the Union requested copies of Medicaid cost reports for 2005 and
2006. These reports are voluminous, and there is evidence that the Union’s research
department makes use of them to obtain general information about the size, finances and
operations of the nursing home. McCalla testified that the reports contain information about
staffing and agency usage; however he appeared unfamiliar with the reports and could not
pinpoint where such information was located.
On January 29, 2008, Respondent replied that the information was readily available from
the state, and that the Union had demonstrated that they are already in possession of such
information. On February 14, Saint Hilare wrote: “We understand but do not agree with your
position that you need not provide Medicaid cost reports and other related data because this
information is available from other sources. Kindly furnish the 2007 report as soon as it is
available.” On April 9 Saint Hilare noted in a letter to Jasinski that the reports had not yet been
received. The documents sought by the Union were provided by Respondent on May 28, 2008.
Respondent argues generally that the Union did not need this information to
meaningfully bargain. In its brief, Respondent argues that the Union never demonstrated the
relevance of this information during bargaining.
Respondent’s apparent position, as stated to the Union, that it was under no obligation
to provide the requested data because it could have been gotten from public records is not
supported by extant Board law. To the contrary, the duty of an employer to provide relevant
information in its possession is not excused by the fact that it may be obtained elsewhere.
Kroger Co., 226 NLRB 512, 513-514 (1976); People Care, Inc., 327 NLRB 814, 824 (1999);
Orthodox Jewish Home for the Aged, 314 NLRB 1006, 1008 (1994).
Nevertheless, Respondent did raise the issue of the relevance of this information during
bargaining, albeit belatedly. Inasmuch as the Medicaid cost reports contain, primarily, non-unit
information, I find that there some question about whether the Union, at any point during
negotiations, sufficiently articulated “with some precision” the basis for its request or
demonstrated why such documents would be relevant to bargaining or to any of the Union’s
other statutory duties and responsibilities. Disneyland Park, supra at 1258. I note that neither
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McCalla nor Saint Hilare testified that they stated why the Union was seeking this information
from the Employer, and there is no such explanation in any of the correspondence in the
record.46
In Troy Hills Nursing Home, 326 NLRB 1465 fn. 2 (1998), the Board denied the General
Counsel’s motion for summary judgment as to the respondent’s failure to provide Medicare and
Medicaid cost reports, finding that they appeared to seek financial information and the union
had not demonstrated the relevance of such information to the employer. Here too, I find that
the General Counsel has failed to meet its burden to show that the Union established the
relevance of the information or that such relevance would have been apparent to Respondent.
Disneyland Park, supra.47
Accordingly, I do not find that Respondent violated the Act in delaying their production.
8. Health Insurance Premium Information
On July 27, 2007, the Employer provided the Union with the total cost for health
insurance premiums for 2006 and the first quarter of 2007. The Union was also provided with
the cost to employees for dependent coverage. What the Union did not know was the cost to the
Employer for its employees’ single coverage and, therefore, Saint Hilare requested such
information at the August 28, 2007 bargaining session, and reiterated this request in his letter of
October 19.
On January 29, 2008, Respondent wrote that such information had already been
provided. By letter dated February 14, Saint Hilare explained that the information had not been
provided and could not be computed, as Jasinski had suggested, by dividing the cumulative
cost furnished by the number of employees as there were too many variables. On April 1, 2008,
Respondent provided the monthly insurance premium cost sought by the Union.
Respondent has argued that the Union did not need the monthly premium costs because
it could have made that determination based upon the information that had been previously
been provided in July 2007. Jasinski’s testimony on this matter, however, failed to demonstrate
how this could be done with any measure of precision.48 More to the point, however, is the fact
that whether or not the Union could have attempted to calculate the costs in the abstract, under
the Board’s standards, it was entitled to receive such information which would have been of use

46 Neither Saint Hilare’s February 14 or April 9, 2008 communications to Jasinski on this
issue state why the Union is seeking this information and are not sufficient to demonstrate its
relevance.
47 Both the General Counsel and the Union argue that the relevance of the reports lies in the
staffing and agency information they contain. I note, however, that neither McCalla nor Saint
Hilare could demonstrate how and where such information could be gleaned from the reports;
nor does that rationale explain or justify why the reports were sought in their entirety. In any
event, to the extent the Medicaid cost reports contain relevant information regarding agency
use, my finding that the Employer generally has failed to provide such information subsumes
such arguments.
48 Jasinski testified that it would be possible to divide the total cost of insurance by the
number of employees. This formula, however, fails to account for those employees who did not
appear to have any health insurance. Thus, any such calculations could not reliably give the
Union the information it sought.
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to it in arriving at a more exact figure. See Albertsons, Inc., 310 NLRB 1176, 1187 (1993)
(employer’s claim that union could determine amounts of contributions to trust fund from plan
documents did not excuse the employer’s failure to provide its own information on the actual
contributions made where this information would allow the union to verify the information found
in the plan).
The Board has held that premiums paid under health insurance plans are wages, and as
such, information regarding premiums is presumptively relevant. The Nestle Company, 238
NLRB 92, 94 (1978). Further, it is apparent that the cost of employee fringe benefits is of
particular relevance during collective bargaining negotiations.
Further, in this case, such information related to an issue central to the parties during
bargaining, i.e. whether the Employer would (or would not) agree to some measure of
dependent coverage for its employees. Clearly, understanding the costs to the Employer of
providing health insurance coverage for its employees might well be of some relevance to the
Union in formulating a proposal to bridge the gap between the parties’ positions. Baldwin Shop
N’ Save, 314 NLRB 114, 124 (1994).49 Accordingly, I find the delay in providing such
information to be unlawful.
For the reasons set forth above, I find that Respondent has failed and refused or unlawfully
delayed in providing information, as alleged in the complaint, as follows: documents showing the
number of overtime hours worked by bargaining unit employees on a quarterly basis in 2006
and 2007; the identification of no-frills employees; the names of agencies used by the Employer
for temporary staff and copies of invoices showing names, number of hours worked, rate(s)
billed and job title for each agency employee; copies of work schedules; OSHA injury and illness
reports for 2005, 2006 and 2007; and the per-employee monthly premium cost for employer-
funded single health insurance. In this manner, Respondent has violated Section 8(a)(1) and
(5) of the Act.50
B. Respondent’s Claim of Impasse
1. Applicable Legal Standards
The Board considers negotiations to be in progress, and thus will find no genuine
impasse to exist, until the parties are warranted in assuming that further bargaining would be
futile or that there is “no realistic possibility that continuation of discussion at that time would
have been fruitful.” Cotter & Co., 331 NLRB 787, 787 (2000), quoting AFTRA v. NLRB, 395 F.
2d 622, 628 (D.C. Cir. 1968).

49 In Baldwin Shop' N Save, supra at 124, fn. 8, it was noted that in Sylvania Electric
Products v. NLRB, 358 F.2d 591 (1st Cir. 1966), cert. denied 385 U.S. 852, the court held “that
the Board could properly find that a union was entitled to information concerning the cost of
welfare benefits, where the union sought ‘better to evaluate the desirability of an increase in
welfare benefits as against an equivalent increase in take-home pay.”’
50 In his post-hearing brief, Counsel for the General Counsel asserts, for the first time, that
Respondent unlawfully delayed in furnishing the Union with copies of the KL Agreement and
other memoranda of agreement which had been entered into by the parties. This was neither
alleged in the complaint nor identified as an additional independent violation during the hearing.
Nor has the General Counsel proffered a sufficient legal argument as to why I should find this to
be a de facto violation of the Act. Accordingly, I find that this matter was not litigated and decline
to address it further.
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The Board does not lightly infer the existence of an impasse, and the burden of proving it
rests on the party asserting it. Naperville Ready Mix, Inc., 329 NLRB 174, 183 (1999), enfd. 242
F.3d 744 (7th Cir 2001); Serramonte Oldsmobile, 318 NLRB 80, 97(1995), enfd. in rel. part 86
F.3d 227 (D.C. Cir. 1996). The existence of impasse is a factual determination that depends on
a variety of factors, including the contemporaneous understanding of the parties as to the state
of negotiations, the good faith of the parties, the importance of the disputed issues, the parties'
bargaining history, and the length of their negotiations. Taft Broadcasting Co, 163 NLRB 475,
478 (1967), enfd. sub nom AFTRA v. NLRB, supra. The Board also considers the parties'
demonstrated flexibility and willingness to compromise in an effort to reach agreement. Cotter &
Co., supra at 789; Wycoff Steel, 303 NLRB 517, 523 (1991). The Board further takes into
account whether the parties continued to meet and negotiate. See e.g. Huck Mfg. Co. v. NLRB,
693 F.2d 1176 (5th Cir. 1982). In short, the Board requires that both parties believe that they are
"at the end of their rope." Grinnell Fire Protection Systems Co., 328 NLRB 585, 585 (1999),
enfd. 236 F.3d 187 (4th Cir. 2000), cert. den. 534 U.S. 818 (2001)(and cases cited therein).
The Board has recognized that a bargaining stance where both sides merely maintain hard
positions and each indicates to the other that it is standing pat is the rule in bargaining and not
the exception. PRC Recording Co., 280 NLRB 615, 635 (1986), enfd. 836 F.2d 289 (7th Cir.
1987). Where movement between the parties indeed occurs, the Board does not confine its
examination of bargaining history solely to the item claimed to be at impasse. See Sacramento
Union, 291 NLRB 552 (1988), enfd. 888 F.2d 1394 (9th Cir. 1981). Rather, the very nature of
collective bargaining presumes that while movement may be slow on some issues, a full
discussion of other issues may result in agreement on stalled ones: "Bargaining does not take
place in isolation and a proposal on one point serves as leverage for positions in other areas.”
Patrick & Co., 248 NLRB 390 (1980), enfd. 644 F.2d 889 (9th Cir. 1981); Sacramento Union, 291
NLRB at 556 (citation and footnote omitted). Further, although a good-faith impasse temporarily
suspends the duty to bargain, the parties are not permanently relieved of bargaining obligation:
“As a recurring feature in the bargaining process, impasse is only a temporary deadlock or
hiatus in negotiations which, in almost all cases is eventually broken, either through a change of
mind or the application of economic force.” Charles D. Bonnano Linen Serv. v. NLRB, 454 U.S.
404, 412 (1982)(internal quotation omitted).
In addition, “[a]n impasse does not destroy the collective-bargaining relationship.
Instead, a genuine impasse merely suspends the duty to bargain over the subject matter of the
impasse until changes in circumstances indicate that an agreement may be possible. Anything
that creates a new possibility of fruitful discussion breaks an impasse and revives an employer’s
obligation to bargain over the subject of the impasse.” Pavilions at Forrestal, 353 NLRB No. 60,
slip op. at 1 (2008)(quoting Airflow Research & Mfg. Corp., 320 NLRB 861, 862 (1966)).
2. The Relevant Factors
a. The Parties’ Bargaining History
While the Union or its predecessor Local 1115 have represented employees at Castle
Hill for a number of years and have executed several MOAs, this was the first negotiation that
was conducted by these particular principals and the record reflects that there were initial
obstacles including the lack of a fully integrated recent collective-bargaining agreement for the
parties to work from.
In support of its contention that impasse had been reached, Respondent notes that the
negotiations spanned a period of over one year and there were 13 face-to-face meetings and
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many letters exchanged during this period of time. As Respondent argues, the Board has found
impasse has occurred when fewer sessions have been held. Richmond Electrical Services, 348
NLRB 1001 (2006); Lou Stechers Super Markets, 275 NLRB 475 (1985). J.D. Lunsford
Plumbing, 254 NLRB 1360 (1981). Respondent thus argues that it properly declared impasse
under such circumstances.
In support of its contention that no impasse occurred, the General Counsel and the
Union point to various events which occurred at and after the May 14, 2008 bargaining session
which, it is contended, demonstrate that the parties had intended that bargaining would
continue. At that meeting, which was the last session held by the parties prior to the Employer’s
declaration of impasse and promulgation of its final offer, the parties exchanged economic
proposals. At this time Saint Hilare made clear that he would be unavailable during the month of
June due to an upcoming Union convention and a personal vacation. Subsequent to the May 14
session, Jasinski sent Saint Hilare an updated list of bargaining unit employees, which included
information regarding health insurance status and no-frills employees. On May 28, the Employer
sent additional information, including OSHA reports, employee schedules, Medicaid cost reports
and certain overtime information. On June 10, Saint Hilare continued to ask for more information
including overtime, daily schedules and agency information. Respondent sent additional
information on June 17.
Subsequently, on June 17 Jasinski appeared to anticipate further negotiating sessions.
In particular, he wrote: “We recognize that you are currently away on vacation . . . We suggest
you propose dates in July and August. . .”
Jasinski thereafter wrote to Saint Hilare on June 23, complaining that the Union had not
contacted Respondent or the mediator for several weeks. He nevertheless asked for further
bargaining dates. On July 7, Jasinski sent the Union Respondent’s final offer with an
implementation date of July 11. He stated: “Because of the Union’s inaction and unwillingness
to modify its proposals, we are at impasse.” The General Counsel and Union argue that such
assertions are false and disingenuous because Jasinski was well aware of Saint Hilare’s
unavailability during June and was seizing on the opportunity to prematurely declare impasse.
On July 7, Saint Hilare had written to Jasinski, stating that he had just returned from
vacation and had reviewed Jasinski’s letters of June 17 and July 23. He proposed bargaining
dates. Jasinski responded on July 10 confirming, as he put it, “negotiations.” After reviewing the
final offer Saint Hilare wrote to Respondent, disputing the claim of impasse. He challenged
Jasinski’s claim of Union inaction, pointing out that the Union had consistently modified its
proposals, up to and including the May 14 session. He noted that the final offer contained
proposals which had not previously been brought to the Union during negotiations and advised
Respondent that the Union had further proposals to present.
From the record it is apparent that there were difficulties in the bargaining, numerous
negotiation sessions and a general lack of agreement on various issues. Nevertheless, I find
that the parties’ bargaining history does not establish that the parties were at impasse at the
time the final offer was implemented.
I note that the parties had not discussed language issues for several months. The
Employer’s only non-economic proposal was presented on September 19 and the Union’s
counterproposal on October 24, 2007. This proposal reflected concessions from the Union’s
initial offer. The history of negotiations, as described by the parties, shows that the Employer
never responded to this proposal. Respondent argues that this was because the Union insisted
on negotiating economics first. However, there is no evidence that the Union explicitly refused to
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discuss non-economic issues with the employer at any time during negotiations.
Moreover, I note that the parties exchanged wage proposals at the May 14 meeting
which represented concessions from those put forward previously and, further, that that the
letters initially exchanged after this bargaining session demonstrate that continued negotiations
were anticipated by both parties subsequent to this meeting.
Respondent argues that the lack of substantive discussion at the July 17 meeting shows
that the parties were at impasse. As noted above, however, this meeting took place after the
implementation of the final offer and the Union justifiably had many questions about how the
implementation would affect unit employees. There were also inquires about certain new
proposals which had been included in the final offer and the information which had been
provided to the Union in the interim period between meetings. The Employer also finally
conceded the use of agency employees, but did not offer a response to the Union’s request for
specific information about such use. The Employer ended the meeting after the Union returned
from a caucus. When told that the Union had further proposals to submit, the Employer insisted
that the Union bargain through correspondence rather than through a face-to-face meeting.51
The foregoing evidence, in my view, fails to meet Respondent’s burden to show that
both parties were at the end of their negotiating rope at the time the final offer was implemented.
b. Good Faith of the Parties in Negotiations
Although there is no complaint allegation of overall bad-faith bargaining, the General
Counsel and the Union allege that Respondent demonstrated bad faith in various ways.
Conversely, Respondent argues that the Union demonstrated bad faith and an unwillingness to
negotiate for an agreement which did not meet standards which had been achieved in other
contracts.
Respondent accuses the Union of adopting a “take it or leave it” strategy, maintaining
fixed positions and engaging in regressive bargaining throughout negotiations. Respondent
accuses the Union of an effort to stall negotiations by insisting on reaching an agreement with
the same terms as the Tuchman Agreement and/or the KL Agreement or no contract at all. In
support of this contention, Respondent relies upon Richmond Electrical Services, supra; J.D.
Lunsford Plumbing, supra and Matanuska Electric Assn., 337 NLRB 680 (2002). In addition, as
noted above, Respondent has contended that the Union’s information requests were purely
tactical and made for the purpose of delay and to foreclose a finding of impasse. ACF
Industries, 347 NLRB at 1043.
Based upon the credited evidence herein, I cannot conclude that the Union bargained in
bad faith. I do not agree that the Union adopted a “take it or leave it strategy” or maintained a
fixed insistence on obtaining either industry standards or terms consistent with the Tuchman
Agreement.
Initially, I note that it has been recognized that a union has the legitimate right to seek for

51 Section 8(d) of the Act defines the duty to bargain collectively as the mutual obligation of
the parties to “meet. . . and confer in good faith….” Moreover, even if the parties had reached a
lawful impasse here, it is well settled that the obligation to meet and bargain continues.
Roosevelt Memorial Medical Center, 348 NLRB 1016, 1017 (2006); Paul Mueller Co., 332
NLRB 312, 317 (2000).
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its members the same or similar terms and conditions of employment that have been negotiated
with other employers. Teamsters Local 282 (E.G. Clemente Contracting), 335 NLRB 1253, 1255
(2001); Mine Workers v. Pennington, 381 U.S. 657, 665 (1965). In determining bad faith, the
Board considers the totality of a party’s conduct. St. George Warehouse, 341 NLRB 904, 908
(2004).
Moreover, I note that while Saint Hilare made clear the Union’s goals, there is no
evidence that the Union negotiators stated that any issue was nonnegotiable. Further, the
record establishes that the Union made various concessions on non-economic and economic
issues, including health insurance and offered compromises relating to the term and effective
date of the proposed agreement. Its wage proposals, which were modified on several
occasions, were consistently less favorable to employees in terms of wage rates and minimums
than what had previously been negotiated in the Tuchman Agreement, and almost always more
favorable to the Employer. Moreover, at the bargaining session on February 27, 2008, it
presented the Employer with a significant modification of its proposal for family health coverage
whereby the Employer would not pay any premiums for the first five years and then be subject
to a sliding scale and would be liable for the full premium only after an employee had reached
ten years of employment.
Respondent alleges that the introduction of a two percent seniority bonus on February
27, 2008 was a regressive proposal. However, this proposal was suggested, as Saint Hilare
testified, on the day the Union introduced a counter-proposal which reduced the cost to the
Employer of dependent care coverage by having employees pay a portion of the premium. In
addition, other economic demands were reduced, in particular pushing back the maximum
contract minimum rates to become effective in September 2011. Thus, the Union presented the
Employer with an economic proposal more favorable to employees in some respects and less
favorable in others from what had been previously proposed. I further note that Respondent
presented no evidence that would substantiate its claim that this proposal was actually
regressive in nature; nor does it appear from the record that Respondent computed the actual
costs of the proposal at the meeting in question or thereafter.
Matanuska Electric Assn., supra, cited by Respondent, is inapposite here. In that case
the Board found that the union had engaged in stall tactics including taking the position that “all
words are ambiguous” and insisting that the employer was obliged to explain its motivation. In
addition, the employer stated that it was willing to continue bargaining if the union submitted a
proposal showing movement, but the union failed to do so. 337 NLRB at 683-684. Those facts
are clearly distinguishable from those presented by the circumstances of this case.52
Based upon the foregoing, I find that the evidence fails to support Respondent’s
assertion of bad faith on the part of the Union.
In support of their contention that Respondent negotiated in bad faith, the General
Counsel and the Union point to Respondent’s refusal to acknowledge the existence and
relevance of the KL Agreement. Respondent, conversely, argues that the Union’s insistence on
this evinces its bad faith. Respondent argues that the Union could never properly identify who
had entered into or been bound by such agreement and that its reliance on this as the
underlying contract was part of a strategy to frustrate bargaining.

52 Richmond Electrical Services and J.D. Lunsford Plumbing, also cited by Respondent, are
discussed below.
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As an initial matter I note that McCalla’s testimony that administrator Sokolowski stated
that she referred to the KL Agreement when addressing grievances was unrebutted. In addition,
Saint Hilare testified that he too referred to the document in the same fashion.53 While
Respondent’s refusal to acknowledge the relevance of this agreement may be puzzling under
such circumstances, the fact remains that the General Counsel’s witnesses failed to offer
specific evidence as to how such a refusal to acknowledge a contract which expired over a
decade ago presented tangible or significant roadblocks to bargaining. It is true that this was a
source of disagreement which apparently contributed to the dissension between the parties.
Other than this, however, there is no evidence that the parties were in disagreement regarding
the existing terms and conditions of employment in effect prior to the expiration of the 2002
MOA. Had there been some uncertainly on these issues, the issue of the applicability of the KL
Agreement might well have taken on enhanced significance. In the absence of any such
evidence, I am not convinced that Respondent’s apparent failure to acknowledge the relevance
of the KL Agreement constituted a major impediment, imposed by Respondent, on the
negotiations.54
The General Counsel and the Union accuse Respondent of other misrepresentations
during the course of bargaining. They cite the Respondent’s failure to highlight its pension
proposal, among others, in the compilation agreement presented to the Union on August 28,
2007.55 I find this particular example unavailing. The record fails to show why this particular
proposal was not highlighted and I decline to speculate as to why it was not. However, I also
find it hard to believe that Respondent thought it could somehow dupe the Union into accepting
these new terms, as the General Counsel appears to suggest. Certainly, Respondent had every
reason to believe that the Union’s experienced negotiators would review the compilation
document in preparation for further negotiations. I further note that Respondent’s proposed
pension language was set forth in its entirety in the economic proposal given to the Union on
October 24, 2007.
The General Counsel and the Union further allege that Respondent continually
misrepresented whether the facility used agency employees. The record supports this
contention. As noted above, I do not credit Jasinski’s testimony that he informed the Union that
the facility had employed agency employees in October or November, after the issuance of the
10-day notice, as it is against the weight of all the other evidence in the record. Rather, I find
that during the period when Respondent was actively contracting with at least one agency for
non-unit employees, it repeatedly advised the Union that none were being used. It was only
after the issuance of the final offer, at the last meeting of the parties, that Respondent
acknowledged that agency employees had been utilized.
c. Contemporaneous Understanding of the Parties as to the State of
Negotiations
It is the case that on May 14, 2008, Respondent advised the Union that it was close to

53 Further, the 1992-1996 Castle Hill memorandum of local conditions makes specific
reference to the applicability of the KL Agreement.
54 In fact, as the Union notes in its brief, a comparison of the compilation document prepared
by Jasinski early in negotiations with the non-economic provisions of the KL Agreement shows
that a number of provisions are identical and others substantially similar. I further note that
Jasinski eventually acknowledged this during negotiations.
55 Jasinski had also failed to highlight its overtime proposal, but acknowledged this omission
after it was brought to his attention at the meeting where the document was reviewed.
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its final offer. It is also the case, however, that economic proposals were exchanged by the
parties, and the Employer did not declare impasse on that occasion. See Huck Mfg. Co. v.
NLRB, 693 F.2d 1176, 1186 (5th Cir 1982); Essex Valley Visiting Nurses Assn., supra at 841.
With regard to Respondent’s comments at the May 14 meeting and the subsequent
issuance of the final offer, the Board has held that the assertion of a “final” position does not, by
itself, require a finding of impasse. Grinnell Fire Protection Systems, 328 NLRB at 585 (citing
inter alia, PRC Recording Co., 280 NLRB at 640). See also Cotter & Co., 331 NLRB at 791,
where Member Brame quoted Judge Posner for the proposition that one party’s proffering of a
so-called final offer is not conclusive on the question of impasse because “[a]fter final offers
come more offers.” 56
Here, the overall course and conduct of the parties does not evince a mutual
understanding that further bargaining would not take place or be fruitful. As noted above, on
June 17, 2008, Jasinski wrote to Saint Hilare: “We recognize that you are currently away on
vacation . . . . We suggest you propose dates in July and August. . .” He thereafter asked for
further bargaining dates on June 23. He also continued to send information to the Union. When
Saint Hilare responded and proposed bargaining dates, Jasinski responded on July 10
confirming “negotiations.” After receiving the final offer, Saint Hilare wrote to Jasinski and
disputed his claims of Union inaction and impasse.
Based upon the foregoing, I conclude that the evidence is insufficient to meet
Respondent’s burden of proof that, at the time of the promulgation or implementation of the
final, offer the parties were of a contemporaneous mutual understanding that further bargaining
would be futile. I further find that the objective evidence does not support Respondent’s
unilateral reliance on such an assumption.
d. Importance of the Issues Central to the Bargaining
As Respondent notes, there were key issues that remained in dispute up to and through
the final bargaining session. These include health insurance, wages, minimums and the use of
no-frills employees. Respondent argues that these disputes resulted in an impasse.
Respondent further argues that the Union’s insistence on settling the contract based upon the
terms of the Tuchman Master Agreement and/or the KL Agreement further established that
impasse had been reached. Richmond Electrical Services, supra; J.D.Lunsford Plumbing,
supra, In this regard, Respondent argues that the parties need not reach impasse on all issues
before an employer may lawfully implement its bargaining proposal. Calmat Co., 331 NLRB
1084, 1097 (2000).
It is apparently conceded by the General Counsel and the Union that issues separating
the parties included wages, health insurance, the proposed elimination of daily overtime and
Respondent’s proposal to double the number of no-frills workers. The General Counsel and the
Union contend, for various reasons attributable to Respondent’s conduct at the table, that the
parties were unable to move beyond preliminary discussions of these and other issues. These
include the Employer’s refusal to accept the KL Agreement as the underlying document, alleged
misrepresentations regarding the compilation agreement and the Employer’s refusal to provide
information regarding key issues such as no-frills employees, agency and employee overtime,
among others.

56 Chicago Typographical Local 16 v. Chicago Sun Times, 935 F.2d 1501, 1508 (7th Cir.
1991).
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In disagreement with Respondent, and notwithstanding the fact that the parties had not
reached agreement on several critical issues, I cannot conclude that the evidence establishes
that the parties were at impasse at the time of the implementation of the final offer. The
evidence fails to demonstrate the sort of deadlock which is characteristic of such a finding. The
Union never told the Employer that it would be unwilling to make further concessions and, in
fact, had made concessions throughout bargaining. Whether the parties could have eventually
resolved their differences is unknown; however the evidence is clear that the Union offered to
continue bargaining and, prior to July 7, the Employer had committed to doing so as well.
Richmond Electrical Services, supra and J.D. Lunsford Plumbing, supra, cited by
Respondent, may be distinguished in that the unions in those cases refused to accept any terms
different from the standard, area contracts. In Richmond, the union conceded that the most-
favored-nations clause precluded it from agreeing with the employer on wages lower than those
in the industry-wide agreement, and the Union never proposed lower wages. In addition, the
impasse over wages there led to “a complete breakdown in negotiations.” 348 NLRB at 1003.
Here, by contrast, the Union submitted economic proposals consistently less favorable to
employees than the ones negotiated with other employers and made concessions to align its
proposals more with positions taken by the Employer throughout bargaining.
Similarly, Calmat Co., supra, is distinguishable insofar as it holds that impasse on a
single critical issue may place such a hold on negotiations to render further bargaining
meaningless. There, however, the union specifically told the employer that it would not make
any further proposals unless and until the respondent “got off its . . . damn pension proposal.”
When the respondent’s negotiator said that was not possible the union’s negotiator
acknowledged that the parties were “hung up on that” and the employer’s representative
concurred. 331 NLRB at 1099. Further, at one point prior to the communication of the
respondent’s final offer, the union told the employer that unless it took its pension proposal off
the table there would be no movement on any other issue. In a letter communicating the final
offer, the employer noted that the parties were at “irreconcilable odds.” Such circumstances do
not obtain here, where there is insufficient evidence to meet Respondent’s burden to show that
the parties had reached the sort of stalemate resulting in intractable positions on any issue or
group of issues which would render further bargaining futile.
By contrast, in NewcorBay City Division, 345 NLRB at 1239, the Board found that the
respondent’s assertion of impasse was not lawful where the union’s agent asked to continue
bargaining and assured the employer that it was prepared to negotiate. It was expected that the
union would make concessions based upon information provided by the employer. The Board
found that no impasse had occurred even though the union “had not offered specific additional
concessions, but only declared its intention to be flexible and continue bargaining.” The Board
noted that although a “wide gap” existed between the parties’ positions, no impasse occurred
where there was a possibility of further movement on important issues. Similarly, here, the
evidence here shows that despite a “wide gap” on health insurance and other issues, the Union
officials were not at the end of their rope, but were willing to negotiate further.
e. The Effect of the Refusal to Provide Information on the Issue of Impasse
A failure to provide information relevant to core issues separating the parties frustrates
the bargaining process and precludes a finding of impasse. Caldwell Mfg. Co., 346 NLRB 1159,
1160 (2006). Similarly, information that is not produced in a timely manner may also prevent
parties from reaching a lawful impasse. Orthodox Jewish Home for the Aged, 314 NLRB at
1008. As the Board has found: “A legally recognized impasse cannot exist where the employer
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has failed to satisfy its statutory obligation to provide information needed by the bargaining
agent to engage in meaningful negotiations.” Decker Coal Co., 301 NLRB 729, 740 (1991).
Here, the Employer’s refusal to or delay in providing information related to mandatory
subjects of bargaining such as overtime, health insurance, employee schedules, the health and
safety of employees and the use of agency employees to supplant bargaining unit employees
went to core issues which were the subject of much discussion and debate over the months of
negotiations, as has been discussed above.
As has been noted above, Respondent asserts that the Union did not need such
information to make its proposals; thus the information sought was neither necessary nor
relevant. In support of this contention, Respondent cites Sierra Bullets LLC, 340 NLRB 242, 244
(2003). In that case, however, the Board considered the “precise issue” of “whether the mere
existence of any information request, regardless of its relevance to the core uses that separate
the parties at the bargaining table” precludes a finding of impasse. The Board found that
because the requested information in that case was irrelevant there was “no convincing
argument that [providing the information] would have changed the fact that the parties were
deadlocked.” The animating principle in that case, however, was whether the information sought
was relevant; there was no suggestion that anything further was required. Thus, Respondent is
incorrect in its apparent supposition that it must be shown that the information would have
changed the course of bargaining. As has been observed by one court: “the Board has never
required the establishment of ‘but for’ causation in absolute terms.” E.I. du Pont de Nemours, v.
NLRB, 489 F.3d 1310, 1315 (D.C. Cir. 2007) See also Caldwell Mfg. 346 NLRB at 1170 (“To the
extent that there is uncertainty about what, if any, new proposals the Union would have made if
it had been given the opportunity to review information . . . that uncertainty must be resolved
against the Respondent, whose unlawful action created the uncertainty.”)
In any event, Sierra Bullets, supra, is inapposite to the circumstances here. In that case
the sole theory of the violation which had been litigated was that impasse was precluded by the
existence of an outstanding information request. Here, as described above, I have found that
under the “totality of the record evidence” there are numerous factors which lead to the
conclusion that a valid impasse had not been reached. Grinnell Fire Protection, 328 NLRB at
585. This includes, but is not limited to, the fact that there had been a refusal to provide relevant
information prior to Respondent’s declaration of impasse. 57
f. Other Considerations
Moreover, the evidence establishes that Respondent’s July 7 final offer differed in
certain respects to its previous offers across the table. Under the no-frills proposal for the first
time, Respondent proposed a two-tier no-frills system, and increased the number of allotted
slots to 25 whereas it had previously proposed 20. In addition the no-frills rate would be paid
above the minimum for each job classification, as opposed to an amount of $1.50 per hour over

57 As set forth above, I have found that no valid impasse has occurred. Even assuming,
however, that a valid impasse had taken place, an employer nevertheless has an obligation to
furnish information in order to enable a union to perform its statutory duties. NLRB v. Acme
Industrial at 435-437. The Board has held that an impasse is viewed as “only a temporary
deadlock or hiatus” in bargaining, and that even during such a hiatus, an employer has a duty to
supply relevant information. Watkins Contracting, Inc., 335 NLRB 222, 225 (2001).
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the employee’s base rate, as had been proposed on October 24.58 In this regard, the Board has
held that introducing significant new proposals at a late stage of negotiations will undermine a
contention that the parties have reached impasse. See e.g. Hotel Roanoke, 293 NLRB 182, 183
(1989). Here, in agreement with the General Counsel and the Union, I find that Respondent’s
late introduction of new proposals, which were related to issues which had been the subject of
significant discussion at prior bargaining sessions, and which had never been put forward prior
to the announcement of the final offer, suggests that a valid impasse had not been reached.
In further support of its contention that impasse had been reached, Respondent relies
upon the fact that the Union did not schedule any sessions after July 17, 2008, and argues that
this demonstrates the Union’s unwillingness to reach an agreement. The evidence, however,
shows that in correspondence exchanged after the declaration of impasse and implementation
of the final offer the Union continued to demonstrate its willingness to meet and took the position
that further discussion could prove fruitful. Respondent, while not refusing to meet, failed to
agree to any further meetings after July 17. Under such circumstances, I do not find the fact that
no further meetings had been scheduled to be determinative. To the contrary, I find that the
Union’s stated willingness to meet further suggests “a new possibility of fruitful discussion.” PRC
Recording Co., supra at 636.
Accordingly, based upon the foregoing, I find that the parties had not reached a valid
impasse at the time of the implementation of Respondent’s final offer.
C. The Alleged Unilateral Changes in Terms and Conditions of Employment
The complaint alleges that in July 2008, Respondent implemented its final offer and
unilaterally changed terms and conditions of employment for the Castle Hill unit employees
without the agreement of the Union and in the absence of a valid bargaining impasse.
Respondent’s answer denied these allegations of the complaint and asserts that it legally
implemented their last best offer and that Respondent did not change any term and condition of
employment for unit employees prior to reaching a valid impasse with the union.
The general outline of the relevant law is well-settled. During negotiations for a
collective-bargaining agreement an employer may not make unilateral changes in mandatory
subjects of bargaining without first bargaining to a valid impasse. NLRB v. Katz, 369 U.S. 736
(1962). While such negotiations are ongoing, “an employer’s obligation to refrain from unilateral
changes extends beyond the mere duty to give notice and an opportunity to bargain; it
encompasses a duty to refrain from implementation at all, unless and until an overall impasse
has been reached on bargaining for the agreement as a whole.” Bottom Line Enterprises, 302
NLRB 373, 374 (1991)(footnote omitted), enfd. mem. 15 F.3d 1087 (9th Cir. 1994). Moreover, no
impasse is possible where an employer presents the union with a “fait accompli” as to a matter
over which bargaining to impasse is required. Dorsey Trailers, Inc., 327 NLRB 835, 858 (1999)
(citations omitted), enfd. granted in part and denied in part 233 F.3d 831 (4th Cir. 2000).
As discussed above, I have found that the parties had not reached impasse in

58 For the reasons discussed above, I do not find that the final offer contained previously
undisclosed language with regard to the Employer’s obligation to make pension or training fund
contributions. I also note, however, that McCalla testified that the proposed language, which
limited coverage and contributions to full-time employees “for hours physically worked,” would
not satisfy the requirements of Fund trustees.
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bargaining. Moreover, the record establishes that Respondent has made unilateral changes in
terms and conditions of employment. In particular, on or about July 13, 2008, Respondent
implemented its final offer which increased employees’ wages, established a two-tier no-frills
system which also changed the rate of compensation for no-frills employees and increased the
number of no-frills slots to 25, eliminated daily overtime pay, reduced health insurance benefits
for employees working between 20 and 30 hours per week and partially implemented a uniform
allowance for full-time employees only. None of these changes had been agreed to in
bargaining and, as discussed above, certain changes even differed from proposals Respondent
had advanced during bargaining prior to the declaration of impasse.
All of the foregoing changes implicate wages, hours and other terms and conditions of
employment and are, therefore, mandatory subjects of bargaining. See e.g. Verizon New York,
Inc., 339 NLRB 30, 31 (2003) (wages); Allied Chemical and Alkali Workers of America, Local
Union No. 1 v. Pittsburgh Plate Glass Co., Chemical Division, 404 U.S. 157, 159 (1971)(pension
and insurance benefits for active employees); Mid Continent Concrete, 336 NLRB 258,
259(2001)(health insurance benefits); Keeler Die Cast, 327 NLRB 585, 588-589 (1999)(wages,
overtime, insurance coverage and vacation policies).
Accordingly, by making such changes in the absence of a valid impasse in bargaining
and without the consent of the Union, Respondent violated Section 8(a)(1) and (5) of the Act.
D. The Alleged Unilateral Discontinuance of Pension Fund Contributions
1. Contentions of the Parties
The complaint, as amended at the hearing, alleges that since on or about February 1,
2007, the Employer unilaterally refused and failed to make pension fund contributions without
notifying or bargaining with the Union. This allegation is based upon an amended charge, filed
on April 9, 2009, which amended an earlier charge filed in December 2007. At the hearing,
Respondent answered the amended complaint, denying the material allegations and asserting
certain affirmative defenses. In particular, Respondent argued that the allegations of the
amended complaint were not supported by the evidence, were time-barred by Section 10(b) of
the Act and did not relate back to the original charge as the amendment was predicated upon a
different legal theory from that set forth in the initial charge. In its post-hearing brief, Respondent
further argues that the Union is without standing to raise the claim.
The General Counsel argues that the amendment is not time-barred because the
allegations of the amended charge are “closely related” to the allegations of the earlier charge in
Case No. 22-CA-28152 as they relate to mandatory subjects that were the subject of ongoing
contract negotiations. General Counsel further contends that the Section 10(b) period did not
start to run until February 9, 2009, when the Fund conducted an investigation into whether
Healthcare and Sunshine had contracts with the Union. General Counsel maintains that the
Union did not have either actual or constructive notice of the delinquencies prior to that time and
that the Respondent has not met its burden of showing otherwise.
The Union argues that the Employer’s method of remitting contributions, through three
different entities, created confusion which made it difficult for the Fund to identify those
payments as Castle Hill contributions. Because the Fund was unaware that the Healthcare and
Sunshine checks were for Castle Hill employees, and because Castle Hill was contributing
regularly for other employees, the Fund believed there was no collective-bargaining agreement
authorizing the acceptance of such contributions. The Union argues that it was not until
February 2009, when a conference call was precipitated by the Fund’s refund letters that the
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Fund was in a position to recognize that the cessation of the Healthcare and Sunshine
payments in February 2007 resulted in a delinquency in contributions by Castle Hill.
As noted above, Respondent argues that only the Fund, and not the Union, has standing
to raise the allegations of the amended charge. In support of this contention, Respondent
maintains that the Fund and the Union are separate and distinct entities and, moreover, that the
Union does not represent the Fund. Respondent further argues that the evidence shows that
since 2002 Castle Hill has always made the required contribution to the Fund and it was the
Fund that refused to process the checks it received from August 2003 through January 2007.
The Fund then returned the checks and refunded amounts already paid and told the Employer
that they would not accept further contributions without a signed collective-bargaining
agreement. Subsequently, by letter dated April 1, 2009, the Fund reversed course and found
that the Employer would be required to make contributions because it claimed it had
subsequently received a signed collective-bargaining agreement. As Respondent argues: “As
such, the Union’s allegations that the Employer deliberately failed to make the necessary
contributions to the Fund are utterly absurd. . .” (emphasis in original).
2. Analysis
a. The Union has Standing to File the Charge
With regards to Respondent’s argument regarding the Union’s asserted lack of standing,
as an initial matter, I note that the Board administers public policy and its processes may be
invoked by any person who believes such policies have been violated. This is reflected in Rule
102.9 of the Board’s Rules and Regulations and Statements of Procedure which provides, inter
alia, as follows:
Who may file . . . a charge that any person has engaged in and/or is engaging in any
unfair labor practice affecting commerce may be filed by any person . . .
Moreover, in NLRB v. Indiana & Michigan Electric Company, 318 U.S. 9, 17-18 (1943),
the Supreme Court addressed the issue as follows:
The Act requires a charge before the Board may issue a complaint, but omits any
requirement that the charge be filed by a labor organization or an employee. In the
legislative hearings senator Wagner, sponsor of the bill, strongly objected to a limitation
on the classes of persons who could lodge complaints with the Board. He said it often
was not prudent for the workman himself to make a complaint against his employer, and
that strangers to the labor contract were therefore permitted to make the charge. The
charge is not a proof. It merely sets in motion the machinery of an inquiry. When a Board
complaint issues, the question is only the truth of its accusations. The charge does not
even serve the purpose of a pleading.
The Board has since adopted this ruling in Bagley Products, 208 NLRB 20, 21 (1973)
and has also specifically affirmed that any person can file an unfair labor practice charge. See
Utility Workers Union of America (Ohio Power Co.), 203 NLRB 230 (1973).
b. The Section 10(b) Issue
Section 10(b) of the Act provides, in relevant part, that “no complaint shall issue based
upon any unfair labor practice occurring more than six months prior to the filing of the charge
with the Board and the service of a copy thereof upon the person against whom such charge is
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made.”
I do not agree with the General Counsel’s contention that the amendment is timely
because it is “closely related” to the original timely-filed charge. The applicable principles are set
forth in Redd-I, Inc., 290 NLRB 1115 (1988):
First, we shall look at whether the otherwise untimely allegations are of the
same class as the violations alleged in the pending timely charge. This
means that the allegations must all involve the same legal theory and usually
the same section of the Act (e.g., 8(a)(3) reprisals against union activity).
Second, we shall look at whether the otherwise untimely allegations arise
from the same factual situation or sequence of events as the allegations in the
pending timely charge. This means that the allegations must involve similar
conduct, usually during the same time period with a similar object (e.g.,
terminations during the same few months directed at stopping the same union
organizing campaign). Finally, we may look at whether a respondent would
raise the same or similar defenses to both allegations, and thus whether a
reasonable respondent would have preserved similar evidence and prepared
a similar case in defending against the otherwise untimely allegations as it
would in defending against the allegations in the timely pending charge.
In this case, in agreement with Respondent, I find that the allegations of the amendment
do not involve the same legal theory as that set forth in the original charge. While both
allegations concern violations of Section 8(a)(5), they are otherwise dissimilar. The initial charge
alleges a failure to provide information, the amendment alleges a unilateral change in terms and
conditions of employment. Further, the factual predicates for the two allegations are not
comparable and do not involve similar conduct during the same period. Nor is there a “causal
nexus” between the allegations. See SKC Electric, Inc., 350 NLRB 857, 859 (2007). Moreover, it
is apparent that the Respondent would not be raising similar defenses to these allegations. I
conclude therefore, that the amendment to the charge in Case No. 22-CA-28152 is not timely
under the principles enunciated in Redd-I and its progeny. See Regency Grande Nursing &
Rehabilitation Center, 347 NLRB 1143, 1143-1144 (2006).
Nevertheless, for the following reasons, I find that the amendment to the charge is timely
filed. The Section 10(b) limitations period does not begin to run until the aggrieved party has received
actual or constructive notice of the conduct that constitutes the alleged unfair labor practice. See
Vanguard Fire & Security Systems, 345 NLRB 1016, 1016 (2005); see also Allied Production
Workers Local 12, 337 NLRB 16, 18 (2001) (finding that the 6-month period provided by Section
10(b) begins to run only when a party has “clear and unequivocal notice” of the unfair labor practice).
“A party will be charged with constructive knowledge of an unfair labor practice where it could have
discovered the alleged misconduct through the exercise of reasonable diligence.” Ohio & Vicinity
Reg’l Council of Carpenters, 344 NLRB 366, 368 (2005) (citing Phoenix Transit System, 335 NLRB
1263 fn. 2 (2001)) (applying Section 10(b) where a charging party was found to have been “on notice
of facts that reasonably engendered suspicion that an unfair labor practice had occurred.”); see also
St. Barnabas Medical Center, 343 N.L.R.B. 1125, 1127 (2004) (finding that knowledge is imputed
when a party first has “knowledge of the facts necessary to support a ripe unfair labor practice.”). If a
party “‘ha[s] the means of discovery [of a fact] in his power, he will be held to have known it[,]’ and
‘whatever is notice enough to excite attention and put the party on his guard and call for inquiry, is
notice of every thing to which such inquiry might have led.’” See Miramar Hotel Corp., 336 NLRB
1203, 1252 (2001) (quoting Wood v. Carpenter, 101 U.S. 135, 139 (1879)); see also Moeller Bros.
Body Shop, Inc., 306 NLRB 191 (1992) (holding that the “Union is chargeable with constructive
knowledge by its failure to exercise reasonable diligence by which it would have much earlier learned
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of the Respondent’s contractual noncompliance.”); Mathews-Carlsen Body Works, 325 NLRB 661,
662 (1998) (finding that had the Union exercised reasonable diligence, the Union would have
become aware that Respondent had not made fringe benefit payments on behalf of a majority of the
employees); but see R.R.R. Restaurant, 314 NLRB 1267, 1268 (1994) (finding the Union had no
knowledge of the repudiation of benefits where the employer consistently made late payments.). The
burden of showing such clear and unequivocal notice is on the party raising Section 10(b) as an
affirmative defense. See Dedicated Services., 352 NLRB 753, 759 (2008).
The Board has, in various circumstances, held that knowledge must be imputed directly to a
union, and not to third parties, in order for the union to have constructive knowledge of an unfair labor
practice. See Dedicated Services, supra (and cases cited therein). Moreover, in situations involving
unions and benefit trust funds, it is well-settled that the law recognizes that labor organizations, and
employers for that matter, are not presumed to be affiliated with multiemployer benefit funds, or to be
anything but separate and distinct entities. NLRB v. Amax Coal Co., 453 U.S. 322 (1981); Operating
Engineers Local 12 (Griffith Co.), 243 NLRB 1121, 1125 (1979), affd. 660 F.2d 406, 411 (9th Cir.
1981). The activities of such a fund will be binding on a labor organization only upon a specific
showing of agency responsibility. Service Employees Local 1-J (Shor Co.), 273 NLRB 929, 931
(1984). Here, Respondent has adduced no such evidence and, to the contrary, has argued that
these entities are unrelated. Overall, then, the Union, and not the Fund, must have had knowledge of
the wrongdoing in order for the Section 10(b) period to begin.
That being said, I do not agree with the General Counsel and the Union that the Union was
not in a position to know about the delinquencies in pension contributions prior to the February 2009
conference call. I find that the record here shows that the Union had sufficient facts at an earlier
occasion to warrant the exercise of due diligence in this matter.
In particular, I find that this occurred in October 2008, when Blount wrote to Healthcare and
Sunshine returning checks for a period from August 2003 through January 2007 and sent a copy of
this letter to Union president Silva. In my view, the apparent failure of the employer to remit
contributions after January 2007 was sufficient notice to trigger the Union’s obligation to inquire as to
why there were no contributions received after that date.59 While it can be argued that there was no
“clear and unequivocal” evidence of wrongdoing at this point, the Union was put on notice of facts
that reasonably would have engendered suspicion that an unfair labor practice had occurred and a
simple inquiry would have revealed that the employer had ceased making payments, as was the
case after the Union and the Fund held their conference call. Ohio & Vicinity Reg’l Council of
Carpenters, supra; St. Barnabas Medical Center, supra; Mathews-Carlsen Body Works, supra. I note
that Respondent has failed to adduce evidence of any reporting requirement or any other basis for
me to conclude that actual or constructive knowledge had or should have occurred on a prior
occasion, and makes no such argument here. Accordingly, I find that it was not until October 10,
2008, that the Union had sufficient facts at its disposal to ascertain that the Employer had failed to
make contributions for the majority of the bargaining unit. 60

59 I additionally note that Blount specifically noted that most of the checks were more than
six months old, yet another indication that timely payments were not being made. In addition, for
the foregoing reasons, I do not credit Blount’s testimony that the Fund was unaware that the
Healthcare and Sunshine had ceased making contributions to the Fund until February 2009.
60 I note that some two years earlier, in November 2006, Union representative Larry Alcoff
exchanged emails with Fund collections manager Jack Salm regarding the relationship between
Castle Hill and Healthcare and Sunshine. From these communications it is apparent that the Union
was aware that the Fund had failed to deposit the remittances sent by Healthcare and Sunshine;
Continued
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Inasmuch as, by that time, the 2002 MOA had expired, a timely charge had to be filed and
served not more than six months after the Union received actual or constructive notice of the unfair
labor practice. See Chemung Contracting Corporation, 291 NLRB 773 (1988); see also Park Inn
Home for Adults, 293 NLRB 1082, 1083 (1989). Thus, here the Union was required to file and serve
its charge no later than six months after October 10, 2008, the date on which it should have known of
the Employer’s alleged wrongdoing. See generally Concourse Nursing Home, 328 NLRB 692, 694
(1999). (Section 10(b) period does not begin to run until the aggrieved party has received actual or
constructive notice of the conduct that constitutes the alleged unfair labor practice.)
The Union filed its charge on April 9, 2009. The record demonstrates that it was sent to the
Respondent and its counsel of record by the regional office on April 10, the following day. In
accordance with Sec. 102.113 of the Board’s Rules and Regulations, the date of service is the day
on which the charge is deposited in the mail. See Sioux Quality Packers, 228 NLRB 1034, 1037
(1977); Heartshare Human Services, 339 NLRB 842, 847 (2003). Thus, the amendment to the
charge was filed and served within the six month period after the Union received constructive notice
of the unfair labor practice, albeit just barely.61 Accordingly, I find that the Union’s charge was filed
and served in accordance with the provisions of Section 10(b) of the Act.62
As noted above, the amended charge alleges a failure to remit pension contributions dating
from July 2007. The amended complaint, however, alleges that the failure to remit such contributions
dates back to February 2007. Here, based upon the principles of Redd-I, supra, I find that the
variance between the charge and the allegations of the complaint are not time-barred. The charge
and the complaint involve the same theory of violation of the Act, sequence of events and defenses
interposed by Respondent. In addition, the timing of the violation was a matter fully litigated at the
hearing. See Concourse Nursing Home, supra at 694 fn. 13.
c. The Unilateral Cessation of Pension Fund Contributions
Having found that the charge is timely filed and served and the allegations of the complaint
are not barred by the applicable statute of limitations, I will now proceed to evaluate the evidence
adduced in this matter. As noted above, Blount testified that the final checks from Healthcare and
Sunshine were received in July 2007, and were remittances for the month of January 2007. This
evidence, and Blount’s testimony that no contributions were received thereafter, was unrebutted.
There is no evidence that the Union was afforded notice or an opportunity to bargain over this issue
at any relevant time.
Respondent argues that, since the Fund returned checks to Healthcare and Sunshine, there
is no evidence that the Employer deliberately failed to make contributions. Inasmuch as the Employer
ceased remitting contributions more than one year prior to the return of any checks, the logic of this
argument escapes me. Nevertheless, in any event, applicable law makes clear that an employer’s
_________________________
however, employer contributions were still being made at that time. Therefore, there is an insufficient
basis to impute to the Union constructive knowledge of any future failure to remit contributions to the
Fund.
61 See MacDonald’s Industrial Products, 281 NLRB 577 (1986) (limitations period begins to
run on the date after the alleged unfair labor practice occurs and does not include the day of the
alleged unfair labor practice).
62 Section 102.14 of the Board’s Rules and Regulations provides that the charging party
shall be responsible for the timely and proper service of the charge. However, the Board and the
courts historically have held that service by the Board’s regional office is sufficient, as long as it
is timely. See T.L.B. Plastics Corp., 266 NLRB 331, fn. 1 (1983) and cases cited therein.
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motive is not an element essential to a finding that a unilateral change is violative of Section 8(a)(5).
NLRB v. Katz, 369 U.S. 736 (1962); Gulf Coast Automotive Warehouse, 256 NLRB 486, 488-489
(1981); Merrill & Ring, Inc., 262 NLRB 362 (1982). Here, Respondent had a continuing obligation to
make Fund contributions, notwithstanding any apparent failure on the part of the Fund to act with
some measure of diligence in this matter.
Accordingly, I find that Respondent has unlawfully ceased remitting pension
contributions for bargaining unit employees in violation of Section 8(a)(1) and (5) of the Act,
as alleged in the complaint, as amended.
Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) and (5) of the Act by delaying in or failing
and refusing to provide certain information requested by the Union in its letter of October 19,
2007 and at various points thereafter, which was necessary for and relevant to the performance
of the Union’s duties as the exclusive collective-bargaining representative of employees in the
following appropriate unit:
All full-time and regular part-time certified nurses’ aides, dietary and housekeeping and
recreation employees employed by Respondent at its Union City, New Jersey facility.
4. The Respondent violated Section 8(a)(1) and (5) of the Act by implementing its final
offer and unilaterally changing terms and conditions of employees in the above-described unit
without having reached agreement with the Union and in the absence of a valid bargaining
impasse.
5. The Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally ceasing to
remit contributions to the SEIU National Industry Pension Fund.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. In particular, I shall recommend that the Respondent supply
the requested information, other than that which has already been provided to the Union. I
further recommend that the Respondent be ordered to place into effect all terms and conditions
of employment provided for by the collective-bargaining agreement which expired on July 24,
2007, and to maintain those terms in effect until the parties have bargained to a valid impasse,
or the Union has agreed to the changes. Provided, however, that nothing in this recommended
Order is to be construed as requiring that Respondent cancel any unilateral changes that
benefited the unit employees without a request from the Union. I also recommend that the
Respondent be ordered to make whole the unit employees and former unit employees for any
loss of wages or other benefits they suffered as a result of the Respondent’s implementation of
its final offer on or about July 11, 2007 or its unilateral discontinuance of contributions to the
SEIU National Industry Pension Fund in the manner prescribed in Ogle Protection Service, 183
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NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest to be computed as provided
for in New Horizons for the Retarded, 283 NLRB 1173 (1987). This includes reimbursing unit
employees for any expenses resulting from Respondent’s unlawful changes to their contractual
benefits, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), affd. 661 F.2d
940 (9th Cir. 1981), with interest as set forth in New Horizons, supra. I further recommend that
the Respondent be ordered to make all contributions to any fund established by the collective-
bargaining agreement with the Union which was in existence on July 24, 2007, and which
contributions the Respondent would have made but for the unlawful unilateral changes,
including all required contributions to the SEIU National Industry Pension Fund, including any
additional amounts due to the funds in accordance with Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 6 (1979).63
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended64
ORDER
Respondent, Castle Hill Health Care Center, Union City, New Jersey, its officers, agents,
successors and assigns, shall
1. Cease and desist from
(a) Failing to provide to the Union, or unnecessarily delaying in providing information that
is relevant and necessary to the Union’s performance of its duties as the collective-bargaining
representative of the Respondent’s employees in the following unit:
All full-time and regular part-time certified nurses aides, dietary and
housekeeping employees and recreation employed by Respondent at its Union
City, New Jersey facility.
(b) Failing to comply with the terms and conditions of employment that are set forth in
the collective-bargaining agreement with the Union that expired on July 24, 2007, until a new
contract is concluded or good-faith bargaining leads to an impasse, or the Union agrees to
changes.
(c) Implementing terms and conditions of employment that are different from those in the
collective-bargaining agreement which expired on July 24, 2007, before a new contract is
concluded or good-faith bargaining leads to a valid impasse, or the Union agrees to the
changes.
(d) Failing and refusing to remit contributions owed to the SEIU National Industry
Pension Fund.

63 I leave for the compliance portion of these proceedings the appropriate computation of
interest and additional sums due with respect to those Fund remittances which had been timely
made by the Employer but not processed by the Fund.
64 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(e) In any like or related manner interfering with, restraining or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Restore, honor and continue the terms and conditions of employment set forth in the
collective-bargaining agreement with the Union that expired on July 24, 2007, until a new
contract is concluded or good-faith bargaining leads to an impasse, or the Union agrees to
changes.
(b) Make whole employees and former employees for any and all loss of wages and
other benefits incurred as a result of Respondent’s unlawful alteration or discontinuance of
contractual benefits, with interest, as provided for in the remedy section of this decision.
(c) Make contributions, including any additional amounts due, to any fund established by
the collective-bargaining agreement that was in existence on July 24, 2007, and which
Respondent would have paid but for its unlawful unilateral changes, as provided for in the
remedy section of this decision.
(d) Preserve and, within 14 days of a request, or such additional 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 electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in Union City, New
Jersey copies of the attached notice marked “Appendix.”65 Copies of the notice, on forms
provided by the Regional Director for Region 22 after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since October 19, 2007.

65 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., December 14, 2009.
____________________
Mindy E. Landow
Administrative Law Judge
JD(NY)–44–09
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT fail to provide to the Union, or unnecessarily delay in providing information that
is relevant and necessary to the Union’s performance of its duties as the collective-bargaining
representative of the employees in the following unit:
All full-time and regular part-time certified nurses aides, recreation employees, dietary
and housekeeping employees employed by Castle Hill Health Care Center at its Union
City, New Jersey facility.
WE WILL NOT fail to comply with the terms and conditions of employment that are set forth in
the collective-bargaining agreement with the Union that expired on July 24, 2007, before a new
contract is concluded or good-faith bargaining leads to an impasse, or the Union agrees to
changes.
WE WILL NOT implement terms and conditions of employment that are different from those in
the collective-bargaining agreement which expired on July 24, 2007, before a new contract is
concluded or good-faith bargaining leads to a valid impasse, or the Union agrees to the
changes.
WE WILL NOT fail and refuse to remit contributions owed to the SEIU National Industry Pension
Fund.
WE WILL NOT In any like or related manner interfere with, restrain or coerce you in the
exercises of the rights guaranteed you by Section 7 of the Act.
WE WILL restore, honor and continue the terms and conditions of employment set forth in the
collective-bargaining agreement with the Union that expired on July 24, 2007, until a new
contract is concluded or good-faith bargaining leads to an impasse, or the Union agrees to
changes.
WE WILL make employees and former employees whole for any and all loss of wages and
other benefits incurred as a result of our unlawful alteration or discontinuance of contractual
benefits, with interest.
JD(NY)–44–09
WE WILL make contributions, including any additional amounts due, to any fund established by
the collective-bargaining agreement that was in existence on July 24, 2007, and which we would
have paid but for our unlawful unilateral changes.
CASTLE HILL HEALTH CARE CENTER
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
20 Washington Place, 5th Floor
Newark, New Jersey 07102-3110
Hours: 8:30 a.m. to 5 p.m.
973-645-2100.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 973-645-3784.