Essex Valley Visiting Nurses Assoc.

National Labor Relations Board - Board Decisions

Mar 6, 2009

353 N.L.R.B. 1044 (N.L.R.B. 2009)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 109
1044
Essex Valley Visiting Nurses Association and
Health Professionals and Allied Employees,
Local 5122. Case 22–CA–28315
March 6, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On December 17, 2008, Administrative Law Judge
Michael A. Rosas issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings, and conclusions as modified2 and to adopt the
recommended Order as modified and set forth in full
below.3
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 1.
“1. Respondent Essex Valley Visiting Nurses Asso-
ciation is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Essex Valley Visiting Nurses Associa-

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the
Board’s powers in anticipation of the expiration of the terms of
Members Kirsanow and Walsh on December 31, 2007. Pursuant to
this delegation, Chairman Liebman and Member Schaumber consti-
tute a quorum of the three-member group. As a quorum, they have
the authority to issue decisions and orders in unfair labor practice
and representation cases. See Sec. 3(b) of the Act.
2 The Respondents have excepted to the judge’s finding that, for
purposes of this litigation only, they conceded that Essex Valley
Visiting Nurses Association (EVVNA) and New Community Corpo-
ration (NCC) constituted a single-integrated business enterprise and
a single employer within the meaning of the Act. We find merit in
this exception. Contrary to the judge’s finding, the record estab-
lishes that counsel for the General Counsel and the Respondents
stipulated at the hearing that EVVNA satisfied the Board’s jurisdic-
tional standards and was an employer engaged in commerce within
the meaning of the Act. Thereupon, counsel for the General Counsel
withdrew the allegations of the complaint alleging that EVVNA and
NCC were a single employer. Thus, EVVNA is the sole respondent
in this proceeding. We shall modify the conclusions of law and
caption accordingly.
3 For the reasons set out at fn. 2 above, we shall modify the
judge’s recommended Order and notice to delete any reference to
NCC as a respondent and as a single employer with EVVNA. We
shall also modify the recommended Order and notice to conform to
the Board’s standard remedial language.
tion, East Orange, New Jersey, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Health
Professionals and Allied Employees, Local 5122 by
failing and refusing to timely provide the Union infor-
mation that is relevant and necessary to the perform-
ance of its duties as the exclusive collective-bargaining
representative of the bargaining unit employees.
(b) Refusing to bargain collectively with the Health
Professionals and Allied Employees, Local 5122 by
failing and refusing to timely respond to the Union’s
requests to meet and bargain in good faith for the pur-
pose of negotiating a successor collective-bargaining
agreement.
(c) 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) On request, timely provide the Union with in-
formation that is relevant and necessary to the Union’s
performance of its duties as the exclusive collective-
bargaining representative of the employees in the fol-
lowing appropriate unit:
All full-time and regular part-time (including regular
per diem) Registered Nurses and Licensed Practical
Nurses employed by the Respondent EVVNA at its
East Orange, New Jersey facility, but excluding all
office clerical employees, managerial employees,
confidential employees, guards and supervisors as
defined in the Act, and all other employees.
(b) On request, bargain in good faith with the Union
as the exclusive collective-bargaining representative of
the bargaining unit employees concerning terms and
conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
(c) Within 14 days after service by the Region, post
at its facility in East Orange, New Jersey, copies of the
attached notice marked “Appendix.”4 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 Re-
spondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable

4 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.”
ESSEX VALLEY VISITING NURSES ASSN. 1045
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 pro-
ceedings, 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 March 20, 2008.
(d) Within 14 days after service by the Region, mail
copies of the attached notice marked “Appendix,”5 at
its own expense, to all full-time and regular part-time
(including regular per diem) registered nurses and li-
censed practical nurses who were employed by the
Respondent at its East Orange, New Jersey facility at
any time from the onset of the unfair labor practices
found in this case until the completion of these em-
ployees’ work at that jobsite. The notice shall be
mailed to the last known address of each of the em-
ployees after being signed by the Respondent’s author-
ized representative.
(e) 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.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT
TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your
benefit and protection
Choose not to engage in any of these protected
activities
WE WILL NOT refuse to bargain collectively with the
Health Professionals and Allied Employees, Local
5122 by failing and refusing to timely provide infor-
mation that is relevant and necessary to the Union’s

5 See fn. 4, supra.
performance of its duties as the exclusive collective-
bargaining representative of the bargaining unit em-
ployees.
WE WILL NOT refuse to bargain collectively with the
Health Professionals and Allied Employees, Local
5122 by failing and refusing to timely respond to the
Union’s requests to meet and bargain in good faith for
the purpose of negotiating a successor collective-
bargaining agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, timely provide the Health Pro-
fessionals and Allied Employees, Local 522 with in-
formation that is relevant and necessary to its duties as
the exclusive collective-bargaining representative of
the bargaining unit employees.
WE WILL, on request, bargain in good faith with the
Health Professionals and Allied Employees, Local
5122 as the exclusive representative of the bargaining
unit employees by timely responding to the Union’s
requests to meet and bargain.
ESSEX VALLEY VISITING NURSES
ASSOCIATION
Benjamin W. Green, Esq., for the General Counsel.
Alex Tovitz, Esq. and Ian Weinberger, Esq. (Jasinki & Wil-
liams), of Newark, New Jersey, for the Respondent.
Carlton Levine, Staff Representative, for the Union.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Newark, New Jersey, on October 7, 2008. The
charge was filed April 9, 2008,1 and the complaint issued
June 19. The Health Professionals and Allied Employees,
Local 5122 (the Union) charges that Essex Valley Visiting
Nurses Association (EVVNA) and New Community Corpo-
ration (NCC), as a single employer and collectively referred
to as the Respondent, have been engaging in unfair labor
practices in violation of Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act (the Act) by failing to acknowl-
edge and respond to the Union’s requests for bargaining
dates and information. For purposes of this litigation only,
the Respondent concedes that EVVNA and NCC constitute a
single-integrated business enterprise and a single employer
within the meaning of the Act. However, the Respondent
denies the allegations and contends it promptly scheduled the
initial bargaining session, as well as promptly and continu-
ously providing information to the Union since the com-
mencement of bargaining.
At the trial, the administrative law judge denied the Gen-
eral Counsel’s late motion to amend the complaint to allege

1 All dates are in 2008, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1046
that the Respondent failed and refused to meet and bargain
with the Union at reasonable times after May 7, the date
plead in the complaint. In his brief, the General Counsel
moves for reconsideration of the motion. On the entire re-
cord, including my observation of the demeanor of the wit-
nesses, and after considering the briefs filed by the General
Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
NCC, a community development company that owns and
controls both profit and nonprofit organizations and health
care agencies, and EVVNA, a home care agency, are New
Jersey corporations with offices and places of business lo-
cated in Newark, New Jersey, where they annually derive
gross revenue in excess of $250,000 and purchase and re-
ceive goods and materials valued in excess of $50,000, di-
rectly from suppliers located outside the State of New Jersey.
NCC and EVVNA, as a single employer, have been engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act. The Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent operates a home health care business lo-
cated in Newark, New Jersey. Its home health care workers
consist of full-time and regular part-time registered nurses
and licensed nurse practitioners. Jackie Clay was the Re-
spondent’s human resources director during the relevant time
period. Previously, the Respondent was represented during
collective bargaining by David Jasinski, a partner at the law
firm of Jasinski and Williams, P.C. Alex Tovitz, an associate
in that firm, was assigned as the Respondent’s chief negotia-
tor on April 14, 2008.
The Respondent’s nursing employees, including regular
per diem employees, constitute a unit appropriate for the
purpose of collective bargaining within the meaning of Sec-
tion 9(b) of the Act (the unit). The Union, on behalf of the
unit, entered into a collective-bargaining agreement with the
Respondent for the period of March 15, 2005, through April
30, 2008. That term was extended through October 31, 2008.
Carlton Levine, a union staff representative, was the Union’s
lead negotiator for the 2008 negotiations with the Respon-
dent. The Union’s bargaining committee consisted of Levine
and three employees from the bargaining unit: Sherry Wilson
(the Union Local’s president); Diane Hawke, and Olga
Forrest.
In a letter, dated January 29, Levine notified Clay, with a
copy to Jasinski that the Union intended to modify the col-
lective-bargaining agreement. He also referred to an enclosed
copy of the required notice sent to the Federal Mediation and
Conciliation Service. Levine also notified the Federal Media-
tion and Conciliation Service and the New Jersey State
Board of Mediation that the Union was seeking a modified
successor agreement. The Respondent did not respond to the
Union’s January 29 letter.2
B. The Union’s February 14 Information Request
On February 14, 2008, Levine sent Clay the information
request at the heart of this case:
Based on the right to information provided by the National
Labor Relations Act, the Union requests the following in-
formation (see attached sheets) in order to provide adequate
representation to our members in the upcoming contract
negotiations.
Please note, that unless otherwise specified, these informa-
tion requests are being made on behalf of the Registered
Nurse and Licensed Practical Nurse bargaining unit.
This request is made without prejudice to the union’s right
to file subsequent requests. Please provide the information
by March 3, 2008. If any part of this letter is denied or if
any material is unavailable, please provide the remaining
items as soon as possible, which the union will accept
without prejudice to its position that it is entitled to all
documents and information called for in the request.
If you believe that any of the material requested is unavail-
able, please contact me immediately.3
Attached to the February 14 letter was a “List of Re-
quested Items” (the List). Section A of the List sought infor-
mation for three items under “Financial and other General
Information.” Section B sought information for 12 items
under “Bargaining Unit Information—Salaries, Benefits and
Working Conditions.”
C. The Respondent Fails to Acknowledge the Request
for Nearly 2 Months
On March 21, not having received a response to the Feb-
ruary 14 letter, Levine sent another letter by certified mail
and e-mail, addressing in part, the outstanding information
request. This time, Jasinski was copied on the correspon-
dence:
As you are aware, the current collective bargaining agree-
ment between [the Respondent and the Union] expires on
April 30, 2008. [The Union] requests that we commence

2 The parties did not dispute that all correspondence was sent and
received on or shortly after the dates indicated thereon. (GC Exhs.
2–4; Tr. 6, 13–16, 20, 54–55.)
3 The Respondent does not deny that Clay received this informa-
tion request. (GC Exh. 6; Tr. 17–19.) Unfortunately, the collective-
bargaining agreement was not offered as evidence, so there is no
indication as to whether someone other than Clay was designated as
the person to whom notice was to be given under the terms thereof.
Lacking any evidence to the contrary, Clay was a suitable designee
for the Respondent upon whom to serve notice under the collective-
bargaining agreement. The Respondent’s well-prepared and aggres-
sive counsel confronted Levine as to why he did not copy Jasinski on
the February 14 letter, but did not contest Levine’s response that
copying Jasinski was unnecessary. (Tr. 55–56.) It is reasonable to
assume, therefore, that the collective-bargaining agreement simply
required notice to the Respondent’s place of business.
ESSEX VALLEY VISITING NURSES ASSN. 1047
negotiations as soon as possible. We are available any day
of the week of March 31 and every day the following
week.
Please advise as to your availability and the location for
these negotiations. Further, I have not received a response
to my request for information mailed to you on February
14, 2008; please let me know when that information will be
provided.4
On April 1, Levine sent an e-mail to Clay and Jasinski re-
minding them that he had not heard from either of them re-
garding the Union’s March 21 letter requesting bargaining
dates and the February 14 information request. Clay replied
by e-mail in about an hour, apologized, and assured Levine
she would contact Jasinski and get back to Levine “immedi-
ately.” About 20 minutes later, she e-mailed Levine with a
request for “a copy of the letter requesting information re-
ferred to below.” Less than an hour later, Levine responded
by attaching another copy of the February 14 information
request. On April 2, Clay replied that she “will begin pulling
this information right away.”5 On April 4, Levine placed a
telephone call to Jasinski, but Jasinski was not available and
he left a message. Jasinski did not return Levine’s call. On
April 8, Levine discussed this matter with a Federal media-
tor.6 On April 9, still not having heard from Jasinski, the
Union filed the instant charge.7
On April 14, Tovitz placed a telephone call to Levine in-
forming him that he was assigned as the Respondent’s coun-
sel for collective bargaining. Levine returned Tovitz’ call on
April 15. They agreed to schedule a meeting within the next
3 weeks and Tovitz said he would speak to the Respondent
about responding to the February 14 information request.
Tovitz followed up on their conversation with a letter sent by
regular mail on April 16, and facsimile transmission on April
17. In the letter, he confirmed representation of the Respon-
dent, a bargaining session to be held on May 7, at 3:30 p.m.,
and extension of the contract through May 31. Tovitz added
that “[w]e will forward you the information in response to
your request under separate cover.” On April 17, Levine sent
Tovitz a written response by facsimile transmission and cer-
tified mail. Levine agreed to the proposed bargaining date
and time, asked for work releases for the Union’s bargaining
unit employee negotiators, and enclosed a partially executed
agreement extending the terms of the contract through May
31. In conclusion, Levine added that “[w]e look forward to
receiving the requested information soon as you indicated on
the phone yesterday.”8

4 GC Exh. 7; Tr. 56–57.
5 GC Exh. 8; Tr. 22–23, 25, 58.
6 I based this finding on Levine’s credible and unrefuted testi-
mony. However, I did not permit testimony as to the substance of
Levine’s conversation with the Federal mediator, since neither Jasin-
ski nor the mediator was called as a witness. (Tr. 25–26.)
7 GC Exh. 1(a).
8 Tovitz and Levine provided consistent versions of their discus-
sion on April 15. (Tr. 31–33, 86–87; GC Exh. 10–11.)
D. The Respondent Begins to Provide Information
on April 23
On April 18, Tovitz returned the executed copy of the
MOU extending the term of the contract, but with a revised
retroactivity provision. In addition, he provided a partial
response to the February 14 information request:
In response to your request for bargaining unit information,
we enclose a current list of the employees in the bargaining
unit, rate of pay, hire date, date of birth, job title, and status.
We will forward you additional information under separate
cover.9
The proposed revision of the retroactivity provision did
not sit well with Levine and he rejected it in his letter dated
April 23. Levine concluded by noting that, “contrary to your
letter, no bargaining unit information was received either via
facsimile or via regular mail.” Tovitz replied the same day by
enclosing “the bargaining unit information inadvertently
omitted” from his April 18 letter and again noting that he
would be forwarding “additional information in response to
your request under separate cover.” The information con-
sisted of a chart setting forth the names of 20 employees,
their rates of pay, hire dates, dates of birth, classifications,
and status.10
On April 24, Tovitz disagreed with Levine’s position on
retroactivity, but indicated the Respondent’s willingness to
extend the contract without retroactivity. On April 28, Le-
vine responded to Tovitz’ April 24 letter by reluctantly
agreeing to the Respondent’s proposal to extend the contract
pending negotiations and enclosing a partially executed re-
vised contract extending the term through May 31. Levine
also acknowledged receipt of the bargaining unit list en-
closed with Tovitz’ April 23 letter and looked “forward to
receiving the remaining information initially requested on
February 14.” On April 29, Tovitz returned the executed
agreement to Levine extending the terms of the collective-
bargaining agreement through May 31.11
On April 30, Tovitz provided Levine with additional in-
formation responsive to the February 14 information request:
a list of the bargaining unit employees containing total hours
worked in 2007, total earnings in 2007, medical coverage (if
any), monthly contribution rates, a list of the Respondent’s
board of directors, current health plan coverage, health insur-
ance premium cost, dental coverage, and 2007 new hire bo-
nuses.12
Levine responded the same day by thanking Tovitz for
providing partial information in response to the February 14
information request. He wrote, however, that most of the
information had neither been provided nor denied. Levine
enclosed a marked up version of the requested information
list to illustrate what information was still outstanding: The
outstanding items consisted of the following information

9 GC Exh. 12.
10 GC Exhs. 13–14.
11 Levine mistakenly referred to Tovitz’ April 24 letter as April
23. (GC Exhs. 15–17.)
12 GC Exh. 18; Tr. 62–63.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1048
relating to bargaining unit employees: years of credited ex-
perience; scheduled hours per week; total hours worked;
regular hours worked for “PD” employees; overtime hours
worked; weekend hours worked; employee payments for
health and/or dental insurance; amount of sick time accrued
but not used; average hourly wage rate for employees in each
classification; for health plan coverage, the total monthly
cost of premiums; the Respondent’s total health insurance
costs in 2007; total monthly premium costs for each type of
dental coverage; number of bargaining unit members with
each type of coverage; annual costs for 2006–2007 overtime
pay, holiday pay, vacation pay, tuition reimbursement, con-
tinuing education costs, workers compensation costs, and
agency nurses; the total number of FTEs in the agency’s
table of organization for each bargaining unit position; the
vacant positions in each job title as of January 1, 2007, and
January 1, 2008; summary plan descriptions for the Respon-
dent’s health insurance, dental insurance, and other fringe
benefit plans; the annual cost and number of employees re-
ceiving the new hire bonus for 2006.13
E. The Union Rejects the Respondent’s Request to
Withdraw the Charges
Tovitz responded by calling Levine on May 1. He re-
quested the Union withdraw its unfair labor practice charge
because a bargaining date had been scheduled and he was in
the process of compiling the information. Levine refused to
withdraw the charge, but noted a willingness to withdraw it
after the parties entered into a new contract.14
On May 2, Tovitz provided the summary plan description
for Horizon Blue Cross Blue Shield of New Jersey and the
most recent unaudited financial report for 2007. He dis-
agreed, however, with Levine’s assertion that most of the
requested information had not been provided:
In response to your letter of April 30, 2008, you indicate
that most of the information has not been provided to you.
This is simply incorrect. We have provided you with most,
if not all, of the relevant data for the Union to effectively
negotiate this contract. Moreover, several of the items you
have labeled as “not provided” are easily ascertainable
from the bargaining unit already provided to you. Specifi-
cally, we ask that you revisit your requests Nos. 2 (Average
hourly rate) and 9 (total number of Full Time Equivalent)
in light of the data you have already received. We will ad-
dress your other questions at the bargaining table.
If you have any further questions, do not hesitate to contact
me directly. Otherwise, I look forward to commencing con-
tract negotiations next week that balances the needs of the
Respondent, our employees, and our patients.15
On May 6, Tovitz provided Levine with copies of bills in-
dicating monthly health insurance costs to the Respondent of
$14,179.86 in September 2006 and $18,674.53 in August

13 GC Exh.s 19, 37–38; Tr. 52–54.
14 Levine and Tovitz essentially agreed as to the substance of this
conversation. (Tr. 35–36, 67, 87–88.)
15 GC Exh. 20; Tr. 63–64.
2007. He also noted the significance of such information
because it revealed an increase of the Respondent’s health
care costs of more than 20 percent than the previous year.16
F. Bargaining Commences on May 7
The parties’ initial bargaining session was held on May 7,
2008. At that meeting, the Union presented its initial propos-
als, which lacked economic proposals, including wages and
benefits. During that meeting, Levine also revisited the Un-
ion’s February 14 information request, stating specifically
which items had been provided and those still outstanding.
Tovitz provided a copy of the EVVNA board of directors
list, but Levine insisted on production of a similar list for the
NCC. Tovitz said he would consider that request, provide a
more legible copy of a health insurance bill, and provide the
rest of the outstanding information. The meeting concluded
with a discussion about subsequent meeting dates.17
Tovitz followed up by calling Levine on May 8. He in-
formed Levine the Respondent would not provide a counter-
proposal until the Union submitted its economic proposal.
Levine responded that the Union would not be able to do
that, as it did not yet have the information necessary to make
an “informed proposal in those areas.” At Tovitz’ request,
Levine then provided clarification as to the outstanding in-
formation and agreed to followup with another letter.18 After
their conversation, Tovitz sent Levine a letter confirming that
the Union’s initial proposal omitted wage and health insur-
ance proposals. He also reiterated that the Respondent would
not submit a counterproposal until the Union presented its
“full economic proposal.”19
On May 9, Levine responded by listing, in pertinent part,
the specific information that the Union needed in order to
complete its economic proposals and noting that the out-
standing information not mentioned would be necessary in
order to complete the negotiation process: dental insurance
Information; years of credited experience, total hours
worked, overtime hours worked, weekend hours worked, and
accrued sick time for each member; annual costs in 2006 and
2007 for overtime pay, holiday pay, vacation pay, tuition
reimbursement, and continuing education costs; and number
of registered nurses and licensed practical nurses budgeted
for by the Respondent for 2008.20
On May 13, Tovitz sent Levine an executed MOU extend-
ing the contract through June 30, but disagreed with the as-
sertion that the Union could not submit an economic pro-
posal with the information already provided. He added, how-
ever, that “we are in the process of gathering additional in-

16 GC Exh. 21; Tr. 65.
17 My findings as to what was discussed at the meeting were
based on Levine’s credible and unrefuted testimony. (Tr. 36–39.)
18 As discussed previously in my analysis of the General Coun-
sel’s motion to amend the complaint to include additional allegations
of the Respondent’s failure to bargain beyond May 7, that motion
was denied at trial. Accordingly, any references to subsequent bar-
gaining or attempts to schedule bargaining after May 7, are for back-
ground purposes only. (Tr. 36–39, 49–50.)
19 GC Exh. 22.
20 GC Exh. 23.
ESSEX VALLEY VISITING NURSES ASSN. 1049
formation purportedly necessary for you to complete your
initial proposals. We expect to have that information to you
shortly.”21
On May 20, Tovitz sent Levine three spreadsheets con-
taining the following information: years of credited experi-
ence, accrued sick time balance, holiday and vacation pay for
2006 and 2007, overtime pay for weekends and holidays for
2006 and 2007, and all other overtime pay for 2006 and
2007. He also enclosed the dental insurance summary and
addressed three other outstanding requests by stating that
there had been no tuition reimbursement in 2006 and 2007,
that the Respondent was unaware of any costs for continuing
education in 2006 and 2007, and disclosing its workers’
compensation costs for 2006 ($155,800) and 2007
($192,754).22
On May 21, Levine replied to Tovitz’ May 20 letter by
submitting several questions concerning information already
provided, but also listing information not yet provided: den-
tal insurance; total hours worked on weekends in 2006 and
2007; and number of RNs and LPNs budgeted for by the
Respondent for 2008.23 On May 28, the Respondent pro-
vided information regarding dental insurance, total hours
worked on weekends, number of RNs and LPNs budgeted by
the Respondent for 2008, and employee contributions to
medical plan and per diem employees.24
G. The Union Submits an Economic Proposal While
Still Awaiting Information
On June 2, Tovitz asked Levine to provide the Respondent
with its complete economic proposal prior to the June 11
bargaining session. On June 3, Levine sent Tovitz the Un-
ion’s proposals relating to wages and health insurance and
“professional practice issues.” Levine also thanked Tovitz
for the information provided with the May 28 letter, but
noted that certain information requested on February 14, was
still outstanding: the Union’s premium costs and total em-
ployee hours worked on weekends. He also noted that “there
is still important information that we have not received as per
my April 30, 2008 letter:” the most recent quarterly financial
report; the Respondent’s 2006 IRS form 990; a current list of
the NCC’s board of directors; annual costs in 2006 and 2007
for overtime, holiday and vacation pay; the number of vacant
positions in each job title as of January 1, 2007, and January
1, 2008; and annual cost and number of employees receiving
the new hire bonus in 2006.25
At the bargaining session on June 11, Tovitz hand-
delivered the Respondent’s response to the Union’s request
for dental insurance premium rate information and the “most
recent quarterly financial report for the first quarter of
2008.”26 However, the remaining information still had not
been provided when the parties met again on June 27 and

21 GC Exh. 24.
22 GC Exh. 25.
23 GC Exh. 26.
24 GC Exh. 27.
25 GC Exh. 27.
26 GC Exh. 31.
July 8.27
On July 17, Tovitz provided the remaining information: a
list of vacation time carried over by the employees at the end
of 2006 and 2007; the Respondent’s cost for free prescription
cards; estimated cost savings for increasing copay amounts;
copies of 2007 and 2008 schedules; annual costs for over-
time, holiday and vacation pay; vacant positions in 2007 and
2008; the number of employees receiving new-hire bonuses
in 2006.28
III. LEGAL ANALYSIS
The General Counsel contends that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by failing: (1) begin-
ning March 20, to provide the Union with requested informa-
tion necessary and relevant to the performance of its duties
as the collective-bargaining representative of the unit em-
ployees; and (2) from March 21 to May 7, failing to confer
and meet at reasonable times with the Union. The Respon-
dent insists the Union never proposed meeting dates prior to
March 31, and that the Respondent’s counsel, 1 day after
being assigned to the case, agreed on April 15 to schedule a
bargaining meeting for May 7. The Respondent also denies
that it unreasonably delayed in providing the requested in-
formation and relies on the fact that it was provided prior to
the issuance of the complaint.29
A. Failure to Provide Information
An employer has an obligation to furnish information in
order to enable a labor organization to perform its duties as
the collective-bargaining representative of its employees.
NLRB v. Acme Industrial Co., 385 U.S. 432, 435–437
(1967). The applicable standard is whether there exists “a
probability that such data is relevant and will be of use to the
union in fulfilling its statutory duties and responsibilities as
the employees’ exclusive bargaining representative.” Bohe-
mia, Inc., 272 NLRB 1128 (1984). In reviewing whether the
requested information is or was probably relevant to the un-
ion’s role, the Board has typically applied a liberal discov-
ery-type standard. Brazos Electric Power Cooperative, 241
NLRB 1016 (1979).
The relevant facts demonstrate that the Respondent simply
ignored the Union’s requests for information and to schedule
a bargaining session for nearly 2 months. On February 14, 16
days after notifying the Respondent of its intention to modify
the collective-bargaining agreement, with a copy to State and
Federal authorities, the Union submitted an information re-
quest to Clay, the Respondent’s human resource director.
The Respondent ignored the request, as well as a followup
letter on March 21. The March 21 letter reminded Clay and
Jasinski, the Respondent’s labor counsel, that the current
collective-bargaining agreement would expire on April 30,

27 The parties stipulated that, after the June 11 bargaining session,
the parties met on June 22, July 8, August 7, and September 4 and
26. (Tr. 7.)
28 The Union did not request any further information and the par-
ties stipulated that, at the time of the hearing, all of the information
sought on February 14, had been provided. (GC Exh. 33; Tr. 6–8.).
29 R. Br. pp. 8–10.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1050
and requested negotiations commence as soon as possible.
Levine indicated the Union’s availability any day during the
2-week period commencing March 31. Clay and Jasinski
ignored that letter and Levine emailed them on April 1. Clay
replied shortly thereafter and assured Levine she would con-
tact Jasinski and get back to Levine “immediately.” A short
while later, Clay asked Levine to send another copy of the
February 14 information request, which he did. On April 2,
Clay assured Levine that she would “begin pulling this in-
formation right away.” On April 4, Levine attempted to con-
tact Jasinski, but was unsuccessful and left a message. Jasin-
ski did not return the call. On April 9, still not having heard
from Jasinski, the Union filed the instant charge. On April
14, Tovitz was assigned as the Respondent’s labor counsel
and spoke with Levine on April 15. They agreed to schedule
a meeting within the 3 weeks and Tovitz was to address the
information request. On April 17, Tovitz confirmed that a
bargaining meeting would be held on May 7, and an exten-
sion of the contract through May 31. He also assured Levine
that the requested information would be forthcoming. On
April 23, the Respondent provided a partial response to the
information request—a chart setting forth the names of 20
employees, their rates of pay, hire dates, dates of birth, clas-
sifications, and status. On April 30, the Respondent provided
additional information: a list of the bargaining unit employ-
ees containing total hours worked in 2007, total earnings in
2007, medical coverage (if any), monthly contribution rates,
a list of the Respondent’s board of directors, current health
plan coverage, health insurance premium cost, dental cover-
age, and 2007 new-hire bonuses. On May 2, the Respondent
provided the summary health plan description and a 2007
unaudited financial report. On May 6, the Respondent pro-
vided the Union with copies of bills indicating monthly
health insurance costs to the Respondent.
The parties met on May 7, for a bargaining session. How-
ever, since the Respondent failed to provide the Union with a
full response to the February 14 information request, the
Union was unable to submit a complete proposal, especially
as to the economic issues of wages and health insurance
benefits. Still lacking at the time of that meeting was re-
quested information relating to dental insurance plans, years
of credited experience, total hours worked, overtime hours
worked, weekend hours worked, and accrued sick time for
each member; annual costs in 2006 and 2007 for overtime
pay, holiday pay, vacation pay, tuition reimbursement and
continuing education costs, and number of registered nurses
and licensed practical nurses budgeted for by the Respondent
for 2008. A further consequence of the Union’s inability to
prepare a comprehensive proposal because of the Respon-
dent’s unreasonable delay was the Respondent’s refusal to
submit a counterproposal.
On May 20, Tovitz sent Levine the following information:
years of credited experience, accrued sick time balance, holi-
day and vacation pay for 2006 and 2007, overtime pay for
weekends and holidays for 2006 and 2007, and all other
overtime pay for 2006 and 2007. He also enclosed the dental
insurance summary and addressed three other outstanding
requests by stating that there had been no tuition reimburse-
ment in 2006 and 2007, that the Respondent was unaware of
any costs for continuing education in 2006 and 2007, and
disclosing its workers’ compensation costs for 2006 and
2007. As a result of the information received, the Union was
able to submit proposals relating to wages and health insur-
ance to the Respondent on June 3. At the subsequent bargain-
ing session on June 11, the Respondent finally provided den-
tal insurance premium rate information and the “most recent
quarterly financial report for the first quarter of 2008.” The
parties met again for bargaining sessions on June 27 and July
8, but the remaining information was not provided until July
17: a list of vacation time carried over by the employees at
the end of 2006 and 2007; the Respondent’s cost for free
prescription cards; estimated cost savings for increasing co-
pay amounts; copies of 2007 and 2008 schedules; annual
costs for overtime, holiday and vacation pay; vacant posi-
tions in 2007 and 2008; and the number of employees receiv-
ing new-hire bonuses in 2006.
Accordingly, by failing to provide the Union with all of
the information requested on February 14, prior to the com-
mencement of bargaining on May 7, the Respondent failed to
bargain in good faith in violation of Section 8(a)(5) and (1)
of the Act.
B. Failure to Meet and Bargain in Good Faith
Section 8(d) of the Act requires an “employer and the rep-
resentative of the employees to . . . meet at reasonable times
and confer in good faith with respect to wages, hours and
other terms and conditions of employment . . .” In determin-
ing whether a party has satisfied such a responsibility, the
Board will look to the totality of the circumstances and not
just the number of bargaining sessions ultimately held. Gar-
den Ridge Mgmt., 347 NLRB 131 (2006).
As previously explained, the Union notified the Respon-
dent, through its human resources director, on January 29,
that it would seek to modify the terms and conditions of the
collective-bargaining agreement, which was due to expire on
April 30. The Respondent ignored that letter, as well as the
February 14 information request. With time running out on
the collective-bargaining agreement, Levine sent another
letter to the Respondent and, this time, the Respondent’s
counsel on March 21. Levine reminded them that the agree-
ment would expire on April 30, and urged commencement of
negotiations as soon as possible and requested bargaining
dates on any day during the 2-week period commencing
March 31. He sent them an additional reminder on April 1,
and finally received a reply from Clay. Clay, professing ig-
norance as to the existence of the February 14 information,
asked Levine to resend it. Levine complied and Clay, in what
could only be characterized as a hollow promise, assured
Levine that she would begin gathering the information.
However, not hearing from Jasinski about bargaining dates,
Levine called Jasinski on April 4 and left a message. Jasinski
never returned the call. However, Levine did get a call from
Tovitz, an associate in Jasinski’s law firm on April 14, or 5
days after unfair labor practice charges were filed and a mere
16 days before the expiration of the collective-bargaining
agreement. They spoke on April 15, and agreed to schedule a
ESSEX VALLEY VISITING NURSES ASSN. 1051
meeting within the next 3 weeks.
While Levine and Tovitz agreed to schedule the meeting
on May 7, the damage had already been done. The Union’s
reasonable request in March to meet during the first 2 weeks
in April had passed and the Union was still attempting to
obtain the information relevant to the development of its
collective-bargaining proposals. The Respondent’s actions in
ignoring and then delaying the Union’s requests for informa-
tion virtually ensured that the May 7 bargaining session
would be a meaningless exercise. The Union, lacking re-
sponses to its information request concerning wages and
health benefits, was unable to present an economic proposal
to the Respondent at that session. The Respondent, having
ignored the economic portions of the Union’s information
request up to that point, responded there would be no coun-
terproposal without a comprehensive union proposal. Under
the circumstances, the Respondent’s unreasonable delay in
waiting until April 14, to respond to the Union’s request to
meet, as well as its failure to respond to the Union’s Febru-
ary 14 information request prior to the May 7 bargaining
session, violated Section 8(a)(5) and (1).
C. The General Counsel’s Motion to Reconsider
The General Counsel moved to amend the complaint to al-
lege that, beginning May 7, and continuing on an open ended
basis thereafter, the Respondent failed to meet at regular
times and bargain with the Union. I rejected the motion as
untimely made during the course of the trial and, if granted, a
development that was likely to prolong the trial, given the
Respondent’s right to a postponement of the trial.30
The proposed amendment appears somewhat related to the
existing allegations, but in order to prevent undue prejudice
to the Respondent, it was extremely likely that the trial
would have been postponed in order for the Respondent to
present an adequate defense. While the General Counsel is
correct in noting that the Board Rule’s, Section 102.17 per-
mits complaint amendments “upon [terms that] may seem
just,” it would not be “just” under the circumstances.
The Regional Director signed the complaint on June 29,
issued a trial date, which was rescheduled twice, and the case
finally went to trial on October 7. Prior to trial, I held a con-
ference call with counsel for the parties to discuss trial prepa-
rations and related issues. The General Counsel made no
mention at that time of his intention to move to amend the
complaint and he provided insufficient justification for such

30 In this regard, an objection to proposed GC Exhs. 34–36 was
sustained and they were placed in the rejected exhibit file. (Tr. 42–
50; GC Br. at 11–13.)
an amendment at trial. At footnote 10 of his brief, he now
contends that limiting the failure to meet allegation to May 7,
was a drafting error. Such an assertion, if accepted, would
establish bad precedent, as it would enable the General
Counsel to wait until trial to add charges and simply attribute
it to some sort of oversight or law office neglect.
Moreover, the motion to reconsider is essentially super-
fluous given the aforementioned findings. The Respondent,
during the period of March 21 to May 7, failed and refused to
meet and bargain. More importantly, however, the Respon-
dent’s failure to timely provide requested information long
before the contract’s expiration on April 30 virtually ensured
protracted bargaining after May 7. After May 7, the Respon-
dent’s continued failure in responding to the Union’s Febru-
ary 14 information request made a bad situation even worse.
In such a context, piling on additional allegations of the Re-
spondent’s failure to meet and bargain would not change the
nature of the appropriate relief, as provided below in the
order, remedy, and notice. Accordingly, the motion to re-
consider is denied.
CONCLUSIONS OF LAW
1. The 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. By failing, commencing March 20, 2008, to timely pro-
vide information requested by the Union in its letter of Feb-
ruary 14, 2008, which was necessary for and relevant to the
performance of the Union’s duties as the exclusive collec-
tive-bargaining representative of the unit employees, the
Respondent violated Section 8(a)(5) and (1) of the Act.
4. By unreasonable delaying until April 14, to respond to
the Union’s request to meet and failing to respond to the
Union’s February 14 information request prior to the May 7
bargaining session, the Respondent violated Section 8(a)(5)
and (1).
5. By engaging in the foregoing conduct, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
[Recommended Order omitted from publication.]