Laurel Bay Health & Rehabilitation Center

National Labor Relations Board - Administrative Judge Opinions

Jun 8, 2007

22-CA-27192, ET AL (N.L.R.B. Jun. 8, 2007)

JD(NY)-26-07
Keansburg, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
LAUREL BAY HEALTH & REHABILITATION CENTER
and Case Nos. 22-CA-27192
22-CA-27324
22-CA-27500
22-CA-27779
SEIU 1199 NEW JERSEY HEALTH CARE UNION
Laura Elrashedy, Esq., Newark, NJ, for the General Counsel.
Alex Tovitz, Esq., (Jasinski & Williams, P.C.) Newark, NJ,
for the Respondent.
DECISION
Statement of the Case
STEVEN DAVIS, Administrative Law Judge: This case was tried before me in Newark,
New Jersey on February 13, 15, 16, and March 14, 2007. A Third Amended Consolidated
Complaint was issued against Laurel Bay Health & Rehabilitation Center (Respondent,
Employer or Laurel Bay) on February 2, 2007 based on various charges and amended charges
filed by SEIU 1199 New Jersey Health Care Union (Union).1
The complaint alleges essentially that following the expiration of the collective-bargaining
agreement between the Respondent and the Union, the Respondent unlawfully (a) implemented
a 3% wage increase for all unit employees retroactive to August 14, 2005 (b) eliminated a
transportation benefit providing bus/van service to and from work for unit employees (c) issued
merit bonuses to unit employees and (d) eliminated non-standard shifts for unit employees. It is
alleged that the Respondent made these changes in mandatory subjects of bargaining in
violation of Section 8(a)(5) of the Act without giving the Union an opportunity to bargain with it
concerning those matters. It is also alleged that the Respondent eliminated the non-standard
shifts because its employees engaged in protected union activity in violation of Section 8(a)(3)
of the Act.
The complaint further alleges that on various dates from August 31, 2005, the Union
requested certain relevant and necessary information and that the Respondent failed to furnish
it. Finally, it is alleged that on various occasions since October 4, 2005, the Union requested
that the Respondent meet and bargain with it for the purpose of negotiating a successor
collective-bargaining agreement and the Respondent failed to do so.

1 The charge and first amended charge in Case No. 22-CA-27192 were filed on November
30, 2005 and January 24, 2006, respectively. The charge, first amended charge, and second
amended charge in Case No. 22-CA-27324 were filed on March 21, April 27, and May 22, 2006,
respectively. The charge and first amended charge in Case No. 22-CA-27500 were filed on July
28 and October 16, 2006, respectively. The charge and first amended charge in Case No. 22-
CA-27779 were filed on January 12 and February 1, 2007, respectively.
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The Respondent’s answer denied the material allegations of the complaint and asserted
certain affirmative defenses which will be discussed below.2 On the entire record, including my
observation of the demeanor of the witnesses, and after considering the briefs filed by the
General Counsel and the Respondent, I make the following:
Findings of Fact
I. Jurisdiction
The Respondent, a corporation having its office and place of business in Keansburg,
New Jersey, has been engaged in the operation of a nursing home and rehabilitation center.
During the preceding twelve months, the Respondent in conducting its operations derived gross
revenue in excess of $100,000 and purchased and received goods valued in excess of $5,000
directly from points outside New Jersey. The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and a health
care institution within the meaning of Section 2(14) of the Act. The Respondent also admits and
I find that the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. The Alleged Unfair Labor Practices
A. Background
The Union and the Respondent have been parties to collective-bargaining agreements
for a number of years, the Union being the successor to Local 1115 which previously
represented the employees. The Respondent admits that the Union has been the exclusive
bargaining representative of its approximately 82 unit employees in the following collective-
bargaining unit:
All full-time and regular part-time licensed practical nurses, nurses
aides, recreational aides, beauticians, housekeeping aides,
laundry employees and dietary employees employed by the
Employer at its Keansburg, New Jersey facility, excluding all office
clerical employees, registered nurses, professional employees,
guards and supervisors as defined in the Act.
This case arises from negotiations between the parties to replace an expiring collective-
bargaining agreement. The prior contract, which was for a five-year term from October, 1999
through September, 2004, provided, inter alia, that the employees were covered by the
Respondent’s health insurance plan.
In October, 2003 an extension agreement requested by the Union was executed which
extended the agreement to March 31, 2005. The extension agreement provided that the health
plan would be changed to the Union’s Plan, later known as the 1199 SEIU Greater New York
Benefit Fund (Benefit Fund). Pursuant to the extension agreement the Respondent agreed to
make contributions of 18% of gross payroll to the Benefit Fund effective April 1, 2005. The
extension agreement also set forth the Respondent’s right to hire up to 25 “no-frills” employees
who receive no benefits under the collective-bargaining agreement.

2 The Respondent’s Answer to the Third Amended Consolidated Complaint, dated February
13, 2007, was proffered at the hearing. It is hereby received in evidence and has been attached
to the exhibit file as Respondent’s Exhibit 29.
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B. The Bargaining Sessions
The chief spokesperson for the Respondent was its attorney David Jasinski. He was
accompanied by David Dennin, the Respondent’s director of finance and occasionally by Linda
Meehan, the director of human resources. The Union’s first chief spokesperson was Uma
Pimplaskar. She was replaced by Justin Foley who was succeeded by Larry Alcoff. Eight
bargaining sessions were held, culminating in an assertion that impasse had been reached.
1. The Meeting Held in about February, 2005
The narrative concerning the first two sessions in which Pimplaskar represented the
Union is taken from Jasinski’s testimony inasmuch as Pimplaskar, who is no longer employed
by the Union, did not testify.
The Union submitted a written proposal to the Respondent at this or the second session.
The Union did not make any wage proposals, but it made demands concerning the various
Union funds.
The Union proposed that the Respondent make contributions to the Benefit Fund at the
rate of 21% of gross payroll of all unit employees “which rate may be adjusted by the Trustees
as necessary to maintain the level of benefits currently provided or as improved by the Trustees
during the life of the Agreement. However, in no event shall the rate be increased above 24% of
gross payroll during the life of this agreement.”
In addition, the Union proposed that the Respondent make contributions as follows to
each of the following funds:
(a) SEIU National Industry Pension Fund: 2½% of the gross earnings of each
unit employee.
(b) Training and Education Fund: ½% of gross payroll.
(c) New Jersey Healthcare Workers Alliance for Quality in Long Term Care - ½% of
gross payroll.
The proposal also contained provisions for Union Activities and Communications,
Seniority, Layoff and Recall, Transfer and Promotion, Discipline and Discharge and Labor-
Management Committees.
Jasinski, whose testimony concerning Pimplaskar’s comments was uncontradicted,
stated that she announced that certain of the Union’s proposals were “nonnegotiable,” and that
she would not participate in discussions concerning them. They included the Benefit Fund, the
pension plan, her desire to obtain parity raises for the employees and the elimination of the “no-
frills” provision. David Dennin, the Respondent’s director of finance, quoted Jasinski as asking
whether there was any room for negotiation on the requested increases to the funds.
Pimplaskar responded by saying that she did not believe that there was any room for
movement. Jasinksi replied that the Union was engaging in bad faith bargaining by refusing to
discuss the issues of contributions to the Benefit Fund, pension plan and no-frills and parity. The
General Counsel argues that Jasinski’s testimony is not credible since the Union’s written
proposal did not contain a parity proposal.
Pimplaskar also stated that the Union was currently negotiating 40 to 45 other contracts
with nursing homes in multi-employer bargaining with the “Tuchman” group of 20 New Jersey
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nursing homes represented by attorney Morris Tuchman. She claimed that if agreement was
reached at Laurel Bay the contract would have to be approved and ratified by a “master
committee” consisting of employees at facilities other than the Respondent. Jasinski said that he
was interested in negotiating a contract for Laurel Bay, and only for its employees.
Pimplaskar made a “laundry list” information request which included a list of unit
employees, their rates of pay, hours worked and dates of hire. Dennin stated that the
Respondent provided that information sometime thereafter. On March 8, 2005,3 Jasinski
forwarded “cost reports” information which consisted of census information for the facility, rate
schedules, and expense data including contributions paid to the Benefit Fund. Jasinski’s letter
invited Pimplaskar to call if she wanted additional information. In his letter dated April 18,
Jasinski stated that upon providing that information he asked her if she required any other
information and she said that she did not.
2. The March 9th Meeting
The Respondent presented its first written proposal. It sought to make changes in the
method of determining eligibility for overtime. It also sought to change the definition of part-time
workers eligible to participate and receive benefits and employer contributions to those who
work 30 or more hours per week from the contract’s definition of part-time workers as those who
work 20 or more hours per week.
The proposal offered an entirely new grievance and arbitration provision, and suggested
that no change be made in certain other provisions of the expiring contract. No economic
proposals for wages and contributions to the various funds were made in this proposal.
The parties discussed their respective positions regarding the grievance and arbitration
clauses. However, Pimplaskar announced that with respect to all of the other Union proposals
“this [the Union’s initial proposal presented at the first meeting] is the standard contract that [we]
are going to negotiate and this is what [the Union] wants and this is what [the Union] is going to
get.” Jasinski stated that “in the background” was the Tuchman contract currently being
negotiated, and it was his belief that that contract would “control” and that the Respondent
would have to agree to the Tuchman contract for Laurel Bay.
3. Justin Foley Becomes the Union’s Negotiator
On March 21, Jasinski was informed that Pimplaskar was being replaced as the Union’s
negotiator by Justin Foley. In a letter to Foley in April, Jasinksi asked for information concerning
the financial condition of the Union’s benefit funds which had not been provided, and for a
complete Union economic proposal. On April 18, Jasinski wrote that he received partially
responsive information but no financial records concerning the funds from 2004 to the present.
The letter noted that a recent arbitration decision stated that the Benefit Fund was deteriorating
and that increased contributions by the employers were needed to maintain the Benefit Fund.
The letter also quoted the Union’s bargaining position that “any proposals regarding the Fund
and the employer’s contribution to it are non-negotiable.”
Foley responded by letter of April 26 with certain of the information requested. He
promised to furnish the rest shortly, stating that the 2004 and 2005 financial reports have not
been prepared. The letter did not challenge Jasinski’s statement concerning the Union’s alleged

3 All dates hereafter are in 2005 unless otherwise stated.
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“non-negotiable” bargaining stance.
On May 14, Foley requested additional information regarding Laurel Bay and four other
nursing homes which were currently in negotiations with the Union.4 In a letter of May 21, Foley
explained that such information for Laurel Bay was previously requested but not received by the
Union.
Jasinski took exception to Foley’s joint request for information, noting that each facility
was separate and negotiating individually and insisted on receiving separate letters. Thereafter,
the Union’s next negotiator, Alcoff, continued to send one letter requesting information for the
five nursing homes. The Union’s position was that it was more “sensible” and time-saving to
place in one letter rather than five, identical correspondence relating to substantially the same
matters involving the five nursing homes particularly since, according to Foley, the proposals by
the Union and the employers were very similar for each of the five facilities.
By letter dated May 17, Jasinski advised Foley that he had previously provided the
requested information to Pimplaskar and was told by her that no further information was
needed. Nevertheless, Jasinski promised to provide the requested information as soon as
possible. On May 21, Foley advised that Jasinski had not provided certain of the prior
information requested.
4. The Mid-May Meeting
Foley stated that the parties reviewed the outstanding requests for information, and then
discussed the Union’s demands and the Respondent’s counteroffer previously made. This
session lasted about 2½ hours.
5. The June 3 Meeting
Foley testified that this session began with the parties reviewing outstanding information
requests. They then discussed non-economic terms, but no agreement was reached.
Jasinski stated that at each of the three bargaining sessions, Foley announced that the
Union would not “deviate” from the Tuchman master contract that was being negotiated. He
quoted Foley as saying that his “hands were tied,” stating that a “most-favored-nations” clause
was being negotiated in the Tuchman agreement that prevented any difference being made
between the Laurel Bay agreement and the Tuchman contract regarding the contributions to the
funds including the Benefit Fund, pension, no-frills and parity increases. Jasinski stated that
Foley explained that if the Union gave lesser rates to Laurel Bay, the most-favored-nations
clause would require it to provide the same rates to other employers.
At hearing, Foley denied telling Jasinski that he could not deviate from the Union’s
proposals, and further denied that his hands were tied concerning proposals that he presented.,
Foley stated that the problem with the Respondent’s Benefit Fund proposal was that the Fund’s
trustees set the minimum rate for contributions to the Fund, and that Jasinski’s later proposal to
contribute 16% of gross payroll to the fund was less than the minimum required.
The parties signed a memorandum of agreement, at the Union’s request, extending the
expired contract to June 30 in which the Respondent agreed to maintain the wages and benefits

4 Pavilions at Forrestal, Monmouth Care, Milford Manor, and Pine Brook.
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in effect from March 31, the date it was due to expire. The Respondent provided certain
information requested including the gross payroll for 2004 and data concerning the use of
agency employees. Jasinski stated that he told Foley that the information provided that day
constituted all the data requested to date. This session lasted about three hours.
The following day, June 4, Foley wrote Jasinski saying that although the information
provided was not everything he asked for he would review it. He also made an additional
request for data which he claimed was requested at the prior day’s session. This session
consumed about three hours.
6. The June 17 Meeting
Foley stated that this session began with the parties going over the outstanding
information requests. Foley testified that although the Union did not receive all the information it
requested, in an attempt to move the bargaining forward, it presented its first full economic
proposal, in material part as follows:
(a) “The Employer shall pay 22.33% of gross payroll to participate in the Greater NY
plan effective 6/15/05.”
(b) Training and Education Fund – ½% of payroll.
(c) Alliance in Long Term Care – ½% of payroll.
(d) Pension – Increase to 2% of payroll effective 6/15/05 and up to 2.5% on 3/1/08.
(e) Wage increases of 4% per year plus parity increases in the wage scale.
(f) Parity Increases – By the expiration date of the contract, the housekeeping and
dietary workers will have a minimum rate of $10/hour, CNAs will have a minimum
rate of $11/hour and LPNs a minimum rate of $22/hour.
(g) Sick Days – Increase to 12 per year.
(h) Holidays – Add 3 personal days.
(i) Vacation – Add to the current contract that employees employed for 12 or more
years are entitled to 5 weeks vacation.
(j) No-Frills – Employees hired before March 31, 2005 as no-frills employees shall be
grandfathered into those positions. There shall be no other regularly scheduled no-
frills employees.
(k) The Employer may use temporary and agency employees for the sole purpose of
filling in for absent unit employees but make reasonable efforts to offer the work to a
unit employee.
Jasinski protested that the proposal for a 22.33% increase to the Benefit Fund was
greater than what was previously proposed in the Union’s initial proposal presented in February
- 21% which may be increased to no more than 24% of gross payroll during the life of the
agreement.
Foley explained that the new proposal was not necessarily more expensive since the
22.33% increase was over the life of the agreement. He conceded, however, that the proposal
does not say that the rate will remain the same over the life of the contract. It just states that
22.33% is payable effective June 15 with no mention of it being over the life of the contract or
that the contribution rate is capped at 22.33%.
Foley stated that no agreement was reached on any of the Union’s economic proposals,
but the parties bargained concerning certain contract language, and agreement was reached on
three of four issues concerning discipline and discharge.
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Jasinski testified that the Union’s economic proposal was identical to one he received at
negotiations for other nursing homes he bargained for. He became convinced that the Union
was not interested in addressing the Respondent’s needs but sought to obtain the identical
language in all the contracts it was bargaining.
Jasinski computed the increases sought and believing that this proposal was more costly
to the Respondent than the Union’s first proposal announced that given the Respondent’s low
census it could not afford the increases proposed by the Union. Jasinski recalled that Foley
stated that the Union’s hands were tied and that it could not and would not make any changes
to its proposals because of the most-favored-nations clause in contracts being negotiated with
other employers. Employer finance director Dennin quoted Foley as saying “the increase is the
increase” and is “set in stone. You’re paying this increase or your staff will not have health
insurance.” As noted above, Foley denied making these comments.
Dennin stated that at this or later sessions Foley asked for additional information, much
of which had already been provided to the Union, including a list of unit employees, rates of pay,
hours worked, dates of hire and information concerning per diem, part-time and agency
employees. Dennin said that such information had been provided at the June 3 session. This
session lasted about 3½ hours.
7. The July 8 Meeting
Foley stated that following brief bargaining concerning non-economic issues, agreement
was reached on one or two of fifteen non-economic issues.
The Respondent presented its economic proposal in which it offered to pay 16% of gross
payroll for the life of the contract to the Benefit Fund for each employee having six months of
continuous employment. It also proposed a 3% wage increase effective October, 2005, a 3%
wage raise effective October, 2006, a 2% wage increase effective April, 2007, and a 2% raise
effective October, 2007. The offer stated that a new hire’s minimum wages were to be based on
the new hire’s years of service in the industry and her job category. The Employer proposed
new hourly rates for no-frills employees and offered to increase those rates during the term of
the contract. The proposal also included an annual merit bonus or merit pay based on work
performance to be given by the Respondent in its sole discretion.
The Employer also proposed to make no contributions to the Union’s Training and
Education Fund, the Alliance in Long Term Care, and the Legal Fund. It proposed no change
from the expired contract in sick days and holidays, and vacation of 5 days after 1 year of
continuous service, 10 days after two years, and 15 days after 10 years. Jasinski told the Union
that he believed that its proposal was fair, especially considering the Respondent’s census
problems.
Foley told Jasinski that the Union was dissatisfied with the Respondent’s proposal.
Specifically, according to Jasinski, the Union wanted to reduce the number of no-frills
employees or eliminate them altogether. According to Dennin, Foley said that the Union
received a 22.33% increase at other facilities and that is what “he will get at all of his facilities.”
Jasinski replied that he did not care what Foley negotiated with other owners – “Laurel Bay is
Laurel Bay.” This session last about two hours.
A new session was scheduled for July 16. Foley canceled the meeting since he had
tendered his resignation and would not be employed by the Union on that date. In canceling the
meeting, Foley wrote to Jasinski that the Union would make a counterproposal and urged an off
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the record discussion with the Respondent’s principals. He also wrote that he questioned
whether the Employer is able or willing to “meet the Union’s stated goals” which he defined at
hearing as obtaining a coherent contract, fair pay for fair work, and contributions to the Benefit
Fund. Jasinski, however, quoted Foley and earlier, Pimplaskar as saying that the Union’s goal
was the master agreement which by then had been signed and ratified.5 Foley wrote a memo to
Union president Milly Silva in which he described the status of negotiations. In it he described
Jasinski as the “enemy” and stated that although the Employer has “listened to what’s been
going on” it put the “standard Jasinski bullshit on the table.” Foley’s memo did not mention that
any information requests were outstanding.
8. The August 5 Meeting
Following Foley’s resignation, Larry Alcoff was assigned as the Union’s negotiator. At
the time of his appointment, Alcoff was the deputy director of long term care responsible for the
nursing home unit of the SEIU National Union. He is an experienced bargainer and served as
the Union’s chief spokesman in numerous collective-bargaining negotiations.
Alcoff stated that he prepared a summary of the Union’s non-economic items and
successfully reached tentative agreement with Jasinski on many of those items, including
seniority, parts of the layoff and recall proposal, parts of the transfer and promotion offer, and
parts of the discipline and discharge proposal. This was done by Alcoff going through each
proposal and hearing Jasinski’s objection. Alcoff’s approach was that he accepted Jasinski’s
objection and deleted that proposal in an attempt to “clear the table” and narrow the issues to
those where there was serious dispute.
The parties also discussed the Respondent’s non-economic proposals including its
demand to eliminate daily overtime and overtime on the sixth or seventh day of the week. Alcoff
made a counteroffer which was rejected at the next meeting.
Alcoff presented a written counteroffer on economic issues. It included a demand that,
effective October 1, 2005, the Respondent make Benefit Fund contributions at the rate of
22.33% of gross payroll. It further provides:
In the event that the Trustees of the Fund determine that
contributions in excess of 22.33% are required to grant the current
benefits to the employees, the parties agree that, at the Union’s
sole option and discretion, to either provide that the parties
promptly meet to propose plan revisions that will keep the
contribution rates at 22.33% or make other modifications in other
parts of the economic costs of the contract such that it covers the
full percentage required by the Trustees. In the event that the
parties cannot agree on the sort of plan revisions that will keep the
rates at 22.33%, they agree to submit the dispute to final and
binding arbitration with Martin Scheinman. In no event shall the
contribution requirement of the Employer exceed 22.33% of gross
payroll as above defined, except by mutual agreement.
Alcoff explained to Jasinski that this proposal provided for a 22.33% contribution over

5 The last bargaining session for the Tuchman master agreement was held on May 6. It was
signed and ratified over the next six weeks through the end of June.
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the life of the contract although it does not say that. He stated that arbitrator Scheinman did not
have the authority to increase the rate beyond 22.33% because the proposal provides that in no
event shall the contribution rate exceed 22.33% except by mutual agreement. This provision
was virtually identical to that set forth in the Tuchman master contract. Alcoff’s testimony that
the Union’s Benefit Fund proposal was “substantially different” from the Tuchman provision is
simply not credible.
Alcoff compared the provisions of the Tuchman contract with the Union’s offer of August
5. The terms of the “Per Diem/No-Frills and Temporary Employees” provisions were virtually
identical. The amounts of the pay raises and the effective dates of the raises in both documents
were also identical. One minor difference was that the parity raises in the Tuchman contract
were awarded on the employee’s anniversary date; the Laurel Bay proposal provided that they
became effective on August 1 of each year.
The Union proposed that a 3% wage increase be given on August 1, 2005; 2.5% on
August 1, 2006, 2% on March 1, 2007, 2.5% on August 1, 2007, and 2% on March 1, 2008. It
also proposed a 40 cent per hour parity increase in addition to the wage raises to enable certain
employees to reach $10 per hour.
Jasinski stated that he told Alcoff that this proposal was more costly than the one the
Union made on June 17. Alcoff conceded that with employees earning about $7.25 per hour, the
Employer would have to raise employees’ wages by 27% in the first year of the contract for
them to reach $9.45 per hour.
The Union also made an offer concerning no-frills, agency and temporary employees.
Alcoff conceded that much of this new offer reflected language the Union achieved in other New
Jersey contracts, reflecting a “pattern that developed,” but stated that in bargaining he
attempted to frame bargaining around such a pattern but then deviate from that pattern based
upon the give and take of negotiations. Alcoff agreed that the Union’s proposal “largely
mirrored” the language in the Tuchman master agreement. For example, the wage raises and
effective dates are identical. The proposals for no-frills, temporary and per-diem employees are
substantially similar if not identical. The parity raise clauses were not the same.
Alcoff termed the Respondent’s offer to pay 16% of payroll to the Benefit Fund “not
realistic” since the rates for such coverage rose above even the 18% rate the Respondent was
then paying pursuant to the expired contract. Alcoff testified that he told Jasinski that if the
Employer was not willing to pay the cost of the insurance “we have to look elsewhere for …
another health insurance.”
No agreement was reached at this session concerning any economic term. The only
economic issues discussed were health insurance and overtime.
Jasinski testified about this session. He expressed frustration with the fact that Alcoff
was the Union’s third negotiator and they had to go over all the matters discussed with
Pimplaskar and Foley. He further said that the Union’s proposal was more expensive than the
one proposed by Foley. He noted that Alcoff said many times that “we were going to get the
Tuchman contract” and repeatedly mentioned that the agreement’s most-favored-nations clause
justified the Union’s refusal to make any changes in its proposal or consider the Respondent’s
proposal. By then that clause was in effect as the Tuchman agreement had been executed in
June. The clause states in material part as follows:
Article 35 – Most-Favored-Nations
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35.1. The Union, having committed itself to achieving better
working conditions for all employees in the nursing home industry,
represents that it intends to provide the same conditions for
workers in all nursing homes with which it has collective
bargaining agreements.
35.2. In the event the Union enters into any collective bargaining
agreement … on or after April 1, 2005 with a proprietary nursing
home in New Jersey which provides for more favorable economic
terms and conditions to the employer than those contained herein,
such more favorable terms and conditions shall automatically be
applicable to the Employers, except that this provision shall not
apply … [listed are exceptions not applicable to the Respondent].
35.3. This provision will apply only to the net economic impact
reflected by the modifications provided for in this Agreement.
Alcoff testified that the most-favored-nations clause had little effect on the Laurel Bay
negotiations since if a dispute under that clause was brought to arbitration, employers would not
provide the proprietary information in an arbitration hearing involving other employers and the
“net economic impact” would vary based on the number of hours scheduled, the number of
employees working and their scheduled hours, and the amount of the patient census. He stated
that net economic impact was almost impossible to prove in arbitration.
Alcoff, although conceding that the parties spoke about the Tuchman master contract
and the most-favored-nations clause, denied saying that that contract was a reason why he
could not deviate from his written counteroffer made at this meeting. Alcoff was not certain that
he raised the most-favored-nations clause at bargaining, but accused Jasinski of repeatedly
mentioning that clause as a “strawman.” He told Jasinski that the Union’s proposals are “largely
drawn” from the Tuchman contract and the Union believed that the Respondent could afford to
agree to that contract and that the Employer’s employees deserved the same rates. However,
he noted that there are “particular conditions” in each facility which might warrant a different
approach. Accordingly, he suggested a different health insurance plan other than the Benefit
Fund, stating that the Union was not “locked into” the Tuchman contract.
Dennin testified that Alcoff was “adamant” that he would get “everything in this proposal
and nothing less,” saying that “this is what I have at other facilities.” Dennin explained the
census problems at Laurel Bay in that it was a 123 bed facility with 23 empty beds.
Union organizer Alan Sable stated that Alcoff explained that other nursing homes had
been able to afford the Union’s proposals which were not unreasonable. He did not recall a
specific discussion of the Tuchman contract. He recalled that the most-favored-nations clause
was mentioned at the session but did not recall the context in which it came up. He recalled that
Jasinski emphasized that he was not interested in entering into the same “deal” as the other
New Jersey employers had agreed to.
Alcoff stated that although the Tuchman agreement was signed by the 20 nursing homes
involved, each of those employers had separate “facility specific” parity raises included in each
contract’s “Schedule A.” In addition, at least six employers did not agree to make parity raises.
Some facilities had different pension contributions than others. In some contracts, the wage
raises were not applied to the starting rates of pay, and in some they were. Alcoff further stated
that pension contribution rates, the number of holidays, sick days and premium pay were
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different among the different employers in the Tuchman group. However, all of the participants
in the Tuchman contract contributed to the Union’s Benefit Fund at the 22.33% contribution
rate.
Alcoff made no requests for information at this meeting which lasted about three hours.
9. The August 23 Meeting
The Respondent orally modified its economic proposal made on July 8 to provide that
the 3% pay raise, scheduled to become effective on October 1, 2005, should be made effective
six weeks earlier, on August 14, 2005.
According to Alcoff, the parties bargained “back and forth” briefly regarding health
insurance. David Dennin, the Respondent’s finance director, said that the Employer did not want
to pay any more than it was spending then for health insurance. He reasoned that if the
Employer paid the increased wage and other increases demanded and also agreed to pay its
counteroffer of 16% of gross payroll for health insurance, that sum would equal 18% of gross
payroll for health insurance which it was currently paying.
Alcoff admittedly responded that such a suggestion is “not going to be possible,” that
there was “no way” that the Employer could remain in the Union’s Benefit Fund at the rate it
proposed. Alcoff stated that he asked Jasinski what he would do if the Benefit Fund rejected the
Employer’s 16% contribution offer and Jasinski replied that that was Alcoff’s problem. Alcoff
added that if that was all the Employer was willing to spend on health insurance the Union had
to look for other health insurance - “we ought to look at other plans.” Alcoff testified that the
Union was not “locked into” the Benefit Fund and proposed considering other plans including
the one the Respondent offered to its non-union workers. That prompted Alcoff’s request for
information of August 31, discussed below, for the summary plan descriptions of the various
plans offered to the Respondent’s non-union employees. Alcoff conceded that there was
nothing in writing prior to August 23 in which the Union offered to consider health insurance
plans other than the Benefit Fund.
It should be noted that Dennin testified that he raised the issue of an alternative health
plan in bargaining with Foley and Alcoff. He said that when the Employer protested that it could
not afford the contribution rate requested he offered to put the unit employees in the Employer’s
health plan – the one the non-unit employees are currently enrolled in and the one in which the
unit employees had formerly been a part of before they were transferred to the Union plan in
about October, 2003. According to Dennin, the Union was not interested in this offer and wanted
the unit employees to remain in the Union’s plan. However, Dennin testified that Alcoff “may
have asked if we had a plan” although he did not recall whether that question was asked at the
August 23 session.
It should be noted that the Respondent’s alleged offer to put its unit employees in the
health plan it maintains for non-unit employees is not reflected in any of the Respondent’s
written proposals and contradicts the General Counsel’s witnesses. Thus, Alcoff testified that at
the August 5 and August 23 sessions, the Respondent’s only offer regarding health insurance
was to reduce its contribution to the Union’s Benefit Fund. It made no proposal that another plan
be obtained for the unit employees. Similarly, Foley testified that the Respondent did not make a
proposal to place the unit employees in the plan it has for its non-union employees, and did not
offer a different type of plan for those employees.
The Union’s committee caucused and decided that Alcoff and one employee would meet
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with Jasinski and Dennin in an effort to determine the Respondent’s intent in making such a
minor adjustment in its offer – the earlier effective date for the wage raise.
Alcoff testified that during their meeting, he asked Jasinski if the parties could reach
agreement. Jasinski was “very hostile,” accusing him of personally bankrupting the Benefit
Fund, and demanding to know why he did not tell the employees that the Fund’s reserves were
recklessly spent. Jasinski said the Respondent did not want to have the Union’s plan but that it
was forced into it. Alcoff responded that he was honest with the employees about the plan. He
told Jasinski that he was proposing a large increase in premiums because the plan needed to
ensure that it would be able to pay the claims it received. At hearing, Alcoff stated that he was
told by the Benefit Fund’s actuaries that contributions to the Fund were about 40% short of its
cost. Alcoff also explained that he modified the wage proposal by spreading out the effective
date of the increases so that the Employer could accommodate the increase in the Benefit Fund
premiums. Needless to say, nothing was agreed to during that private conversation.
Alcoff stated that when he and Jasinski returned to the bargaining room, Jasinski
announced that the Respondent’s outstanding offer as amended that day was the Employer’s
“last, best and final offer.” Alcoff replied that that was “surprising” since they had “virtually no
discussion on economic issues in this bargaining.”
Dennin testified that after he and Jasinski returned to the bargaining room, Alcoff
announced that the Union must have the 22.33% Benefit Fund increase, the 12% wage
increase, and that the wages of the lower paid employees must be brought up to $10.00 per
hour by the end of the contract. Jasinski replied that the Benefit Fund and wage increases were
too high and he could not agree that the lower paid employees be paid $10.00 per hour by the
end of the contract.
Dennin said that both parties agreed that they were “going nowhere” and that Alcoff or
Jasinski said that they were at an impasse. Dennin must be mistaken about Alcoff’s making that
remark since Alcoff and Jasinski testified that Alcoff said that the parties were not at impasse.
Alcoff then began to ask many questions of Jasinski concerning his written proposal of
July 8. Such questions included the effective date for wage raises for probationary employees
completing their probationary period; specific questions concerning the pay rate for a new hire
assuming four years of experience; in determining merit pay increases, whether evaluative tools
were used to measure skill, responsibilities, safety and training; whether the Employer had a
policy on merit pay; the cost of the merit raises over the next three years; the number of no-frills
employees employed; whether the Employer had a training and education policy or offered
classes similar to the Union’s; whether any employee was employed 10 years for purposes of
vacation benefits. Jasinski replied that he did not know the answers to any of the questions
posed by Alcoff. Finally, Alcoff asked whether the Employer costed out each of its proposals to
determine how much money it would save if they were agreed to by the Union. Jasinski replied
that he did not cost anything out and could not say what the savings would be.
Alcoff also asked questions concerning the Respondent’s earlier, written offer given to
the Union on March 9. Such questions related to the Employer’s providing benefits only to
employees working 30 or more hours per week. Alcoff asked how many employees worked
fewer than 30 hours. Jasinski asked him to make a request for information and said he did not
know how much the Employer would save through this proposal. Alcoff asked how much the
Employer would save by virtue of its overtime proposal eliminating daily overtime or overtime on
the sixth or seventh day. Jasinski did not know the answer to those questions. Alcoff stated that
his questions were aimed at a “substantive discussion” but since Jasinski did not respond to
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those questions, the possibility of having such a discussion was “very difficult.”
Alcoff denied asking the questions in order to avoid a finding that impasse had occurred.
At hearing, Jasinski described Alcoff’s inquiries as hypothetical questions having no relationship
to the bargaining, were never asked or considered before that time, and were posed only to
suggest that the parties were not at impasse. Jasinski stated that there were no outstanding
requests for information at the time he made his statement concerning the last, best final offer
and the Union was able to make an economic offer consistent with the Respondent’s position.
Alcoff testified that he then said that “we are not at impasse in this discussion. There is
wiggle room on the proposal.” He stated that no one mentioned that impasse had occurred.
Alcoff said that he would prepare a counteroffer, and asked to schedule another bargaining
session, adding that he needed information on the types of questions he asked because he
needed to know “in real terms” what the impact of the Respondent’s proposals will be on the
employees. He also said that the Union and the Respondent needed to cost their proposals.
Jasinski did not have his calendar with him but that he (Jasinski) would call Union president
Silva to schedule the next session.
Union organizer Sable heard Alcoff deny that the parties were at impasse, saying that
the Union had reduced its proposals and that there were outstanding information requests
concerning per diem rates and no-frills workers, and the Union needed additional information
concerning merit pay and the health insurance plan provided for non-bargaining unit workers.
Alcoff stated that in the two sessions he had with Jasinski there was very limited “face to
face” bargaining, and that no real discussions were held regarding the economic issues.
However, Union organizer Sable he stated that the majority of the time at the August 23 session
which lasted 1½ to 2 hours, was spent at the bargaining table. Alcoff blamed Jasinski, saying
that he simply made a last offer that was really his first offer with one modest change.
In his letter of September 2 to Jasinski, Alcoff stated that at the end of the August 23
session he advised Jasinski that he would review the Respondent’s proposals, cost them out
and prepare a comprehensive counterproposal, and that Jasinski said that he would call Union
president Silva to schedule the next bargaining session. He noted that “we are clearly not at
impasse.”
C. The Requests for Information and the
Alleged Failure to Meet and Bargain
The complaint alleges that since about October 4, 2005, the Union requested that the
Respondent meet and bargain with it for a successor collective-bargaining agreement, and that
the Respondent failed to meet with it.
The complaint also asserts that on August 31, September 2, November 23, 2005, July
10, 2006 and on January 10, 2007, the Union requested and the Respondent failed and refused
to furnish certain information. It is alleged that the requested information is necessary for and
relevant to the performance of the Union’s duties as the exclusive collective-bargaining
representative of the unit employees.
Jasinski testified that at the time of the final bargaining session with Alcoff on August 23,
2005, there were no outstanding information requests. Alcoff conceded that from the time he
became the Union’s negotiator and until the session of August 23, he did not make any written
requests for information from the Respondent. Indeed, the complaint does not allege that the
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Respondent failed to provide any information prior to the end of bargaining on August 23.
Following the final bargaining session Alcoff sent a letter on August 31 to Jasinski
advising that he is “preparing a comprehensive counterproposal on the remaining open issues”
and requested information which would enable him to do so. In summary, the letter requested
the summary plan descriptions of the various benefit plans offered to non-union employees and
the cost of total monthly premiums for the employer and employee for those plans. The letter
also requested a list of employees (a) working 30 or fewer hours per week (b) having four or
more weeks of vacation (c) hired in the past six months and (d) employees who are no-frills
employees. The letter also requested the amount of savings projected by the Respondent’s
vacation time proposal; wage surveys and factors relied on related to merit pay; policies on
merit pay/bonuses; correspondence to the Union proposing merit pay; cost of the merit pay
proposal; and the amount of overtime paid in the past 12 months. The Respondent’s answer
asserts that the August 31 letter did not constitute a proper request for information under the
Act.
At hearing, Alcoff gave his reasons for requesting this information. Essentially, the
information was requested in order to clarify certain parts of the Employer’s proposal and to
determine the costs and the impact on the employees of such proposals. His request for the
summary description plans provided by the Respondent to its non-union employees related to
his comments at the August 23 bargaining session that if the Respondent’s offer of a 16%
contribution to the Benefit Fund plans was not accepted they would have to look at other plans.
In considering whether the Employer’s plans could be considered as a substitute, Alcoff
requested the descriptions of those plans.
In his letter of September 2 to Jasinski, Alcoff wrote that at the end of negotiations on
August 23 he told Jasinski that he would “review your proposals, cost them out, and prepare a
comprehensive counterproposal. In the letter, Alcoff responded to the Respondent’s
implementation of a 3% pay raise on September 1. The letter asked whether the Respondent
also implemented the other parts of its proposal such as eliminating daily overtime and overtime
on the 6th and 7th day; reducing vacation accruals and its contributions to the Benefit Fund;
eliminating benefits for part-time employees; and whether it established a policy on merit pay.
The letter also asked Jasinski to advise him as to available dates for negotiations. The
Respondent’s answer to the complaint asserts that the September 2 letter does not constitute a
proper request for information under the Act.
On October 4 and 10, Alcoff sent letters to Jasinski asking that he provide the
information that had been requested. The letter of October 4 advised that the Union was
available for negotiations on October 10, 12 and the week of October 17 through 21, and
requested that a mediator be present. Copies of the letter were sent to state and federal
mediation agencies.
On November 14, Alcoff advised Jasinski in writing that the Union was available to
bargain on fourteen dates in November and December.
On November 18, Jasinski advised that he was available to meet on December 1, 9, and
13 or 19. “Please call to confirm these dates. If you require any further information before this
session, please advise. At the next session, we would expect the Union to come to the
bargaining table prepared to make meaningful proposals directed toward reaching an amicable
agreement that addresses the needs of our employees and this facility. We wish to avoid the
game-playing by the Union and without the Union trying to force us to accept the agreement
negotiated by other parties. ”
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Jasinski’s testimony that Alcoff never responded to his November 18 letter advising of
his availability to meet on four dates in December was contradicted by Alcoff’s letter dated
November 23, in which he stated that the Union was available for negotiations on December 9
and 19 at 2:00 p.m. Alcoff’s letter stated that he had not yet received the information requested
in its letters of August 31 and September 2. Alcoff also requested information concerning certain
alleged unilateral changes the Employer made. Such requests included information about the
transportation policy, information concerning the policy and wage rates for no-frills employees,
and a list of unit employees and data concerning their dates of hire, wage rates, job titles, last
wage increase, and whether they are no-frills workers and whether they receive transportation
to and from work. The last request was necessary according to Alcoff because he needed fresh
information about the work force to supplement similar material received eight months before, at
the start of bargaining. The Respondent’s answer to the complaint asserts that the November
23 letter does not constitute a proper request for information under the Act.

Thus, the parties advised each other in writing that they were available to meet on
December 9 and 19. Alcoff testified that on December 8, he phoned Jasinski’s office and spoke
to former paralegal Concetta Catis to confirm that they would meet the following day and ask
that unit employees be released to attend the session. Later that day, Jasinski sent a fax stating
“since I never heard from you to confirm the negotiation date for … December 9 … I scheduled
other matters. While I don’t believe that there is anyone to blame, it is presumptuous on your
part to call my office at 1 o’clock the day before the negotiation session to confirm the date that I
proposed long ago. I suggest in the future that both parties confirm dates in advance to avoid
this from happening again. At your earliest convenience, please call to schedule a mutually
convenient date for all parties.”
On December 9, Alcoff wrote saying that Jasinski offered to meet on December 9, and
that he (Alcoff) agreed to that date by letter dated November 23 and Jasinski did not respond to
that letter. Alcoff stated that he called Jasinski’s office twice on December 8, and found that
Jasinski was not available and did not return his call. Alcoff reminded Jasinski that he had not
replied to the information requests of August 31, September 2 and November 23. Finally, Alcoff
asked Jasinski to confirm that they would meet on December 19.
On December 14, Jasinski wrote to Alcoff claiming that Union representative Norman
Degeneste called on December 9 and said that the session scheduled for that date or for
December 19 would be postponed because of an expected snowstorm.6 He also wrote that he
had “no record of the session for December 19th and in light of the impending snowstorm
suggest alternate dates.” Jasinski proposed meeting dates for December 28 or 29 or the week
of January 9, 2006.
At hearing, Alcoff insisted that he gave no instructions to anyone, including Degeneste,
to cancel the meetings of December 9 or 19, meeting, and that he was informed by Degeneste
that he did not advise Jasinski that that session would be canceled.
On December 28, Alcoff, realizing that he had not responded to Jasinski’s letter in a
timely fashion, wrote that he was available on January 4, 18-20 and the week of January 23.
Alcoff did not receive a response to this letter and on January 19 sent another letter offering “all
dates between February 4 and March 2.”

6 There was some confusion as to whether Degeneste was allegedly canceling the
December 9 or the December 19 session.
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On January 26, 2006, Jasinski wrote asking for a copy of a contract between another
employer and the Union which the Union later provided. The letter stated that the Union has
“repeatedly stated that they cannot agree to any contract that deviates from contracts covering
other New Jersey employers.” At hearing, Alcoff denied making that statement.
On July 10, Alcoff wrote to administrator Willinger requesting certain information
including a list of employees working on standard schedules and memos concerning
accommodating schedules. This information was sought because of director of nursing Ernie
Chan’s statement to employees, discussed below, concerning the elimination of accommodating
schedules. The letter also requested information concerning the transportation benefit. Further
requests included information concerning employees receiving partial benefits and overtime.
Alcoff admitted making an inadvertent error in sending the letter to Willinger and not Jasinski,
but assumed that Willinger would forward it to him. The Respondent’s answer to the complaint
asserts that the July 10 letter does not constitute a proper request for information under the Act,
but does not deny that it received the letter.
On October 30, Jasinski wrote, chastising Alcoff for writing to Willinger and not to him on
July 3. The letter asserted that the Union had claimed on numerous occasions that its “hands
are tied based on the most-favored-nations clause negotiated by other employers” and that “the
Employer has no option and must join the Union’s Health Plan and make contributions of at
least 22.33%.” The letter further stated that at the last session Alcoff stated that the parties were
“light years apart.” Further, Jasinski stated that the Respondent “early in these negotiations”
provided the Union with all the documents responsive to its information requests but the Union
has continued to ask for the same information. He accused the Union of delaying tactics and an
“abuse of the process.” Finally, Jasinski stated that although the parties are at impasse it will
meet to bargain and asked for a “comprehensive counterproposal to our last best offer.”
On December 1, Alcoff replied, denying that the parties are at impasse. He advised that
at the last session they reviewed the open issues and the Union is prepared to present
counteroffers as soon as the Respondent provides all the requested information. Alcoff noted
that the Employer had not presented the Union with a written last, best and final offer. Alcoff
denied acting in bad faith by requesting further information. He stated that Jasinski has “ignored
every information request in the past fifteen months,” the Employer made unilateral changes,
the Union demanded bargaining and Jasinski did not respond. Alcoff also denied Jasinski’s
claim that the Union insisted on the Employer’s continued participation in the Union’s Benefit
Fund. He stated that the Union requested information regarding health plans that the Employer
offered its non-unit employees “because we are prepared to consider other health insurance
options.” At hearing, Jasinski testified regarding that comment that that was the first time the
Union indicated a willingness to consider health plans other than the Benefit Plan. Finally, the
letter expressed Alcoff’s willingness to meet during the weeks of December 12 and 19, but he
stated that he needed the information requested in his June 23 letter.
By letter dated January 3, 2007, Jasinski stated that he would provide the Union with
“additional information that you requested.” The letter also requested copies of all contracts with
New Jersey employers containing the “most-favored-nations clause.” Jasinski proposed to meet
during the week of January 29.
On January 10, in response to the Employer’s request, the Union provided a copy of the
Tuchman Agreement and other contracts. In its January 10 letter, the Union proposed meeting
on January 30, 31 and February 1. Alcoff stated that just before sending this letter, he became
aware that the Employer gave merit pay increases or bonuses to employees in late December.
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The letter requested information concerning the merit pay bonuses including who received
them, the date they were given, their amount; information concerning evaluations or wage
surveys used to determine the amount of the merit increase; and a copy of the merit pay plan.
The Respondent’s answer to the complaint asserts that the January 10 letter does not constitute
a proper request for information under the Act.
The parties did not meet on any of the three dates suggested by Alcoff. No response to
those offers of dates was received by Alcoff and no bargaining has been conducted since the
last meeting on August 23, 2005. Jasinski stated that no further bargaining sessions have been
held because the Union continues to assert that it needs additional information before the
parties meet. However, according to Jasinski, the Employer has given the Union “every bit of
information available to us; to meet with them would just be another exercise in futility as was
evidenced by the negotiation sessions that we held with them.”
The Union received no response to the requests for information contained in its letters of
August 31, September 2, November 23, 2005, July 10, 2006 and January 10, 2007.
D. The Implementation of a Wage Increase and Merit Bonuses
The complaint alleges and the Respondent admits that on about September 1, 2005,
following the expiration of the collective-bargaining agreement, the Respondent unilaterally
implemented a 3% wage increase for all unit employees retroactive to August 14, 2005,
consistent with its last offer. The Respondent’s answer to the complaint asserts that the parties
bargained to impasse and it therefore had the right to unilaterally implement its last best offer.
Alcoff denied that the Union was given any notice of the implementation of the increase.
The complaint also alleges and the Respondent admits that on about December 29,
2006, it issued merit bonuses to unit employees. Alcoff stated that on January 4, 2007 he first
learned, from employee McLeod, that a merit bonus was given in late December, and that he
did not receive any prior notice from the Respondent.
E. The Alleged Elimination of a Transportation Benefit
Jennifer Horath, the Respondent’s director of human resources testified that in
September, 2005, Laurel Bay had about 15 vacancies for certified nurses’ aides. It found that it
could not obtain a sufficient number of replacements from the local area and sought employees
from Newark. In early October, Horath and Ben Katsevich, the Respondent’s administrator,
brought job applications and interviewed prospective employees at the McEllis School, a health
care training facility in Newark.
The school’s representative and the interviewees themselves advised Katsevich and
Horath that they needed transportation to Laurel Bay which was located 45 minutes away by
car. The applicants were told that free transportation would be provided to and from one location
in Newark.
On October 26, 2005, about 15 new employees began work. They were given a written
“Employee Transportation Policy” by Katsevich which in material part stated that the
Respondent “may decide to cancel the transportation service temporary [sic] or permanently at
any time for any reason, without explanations… Any CNA that is not using the Irvington
transportation is not entitled for any type of benefits [sic] that may be considered as
compensation for not using the transportation.” However, employee Wanda Lewis, one of the
new recruits, testified that she was never told that the van service would be temporary. The van
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service was provided only for these new employees.
About five of the new employees worked on each of the three shifts. A six-passenger
van picked up employees for the first shift and brought them to Laurel Bay. At the end of that
shift they were brought back to Newark and the next shift picked up.
In early June, 2006, Horath learned that the employees using the van service had their
own transportation and did not need the van service. By then, only about six workers were using
the service. Horath, director of nursing Ernie Chan, and Shantell Hampton, the Respondent’s
staffing coordinator met with all the workers who used the van service and informed them that
as of July 10 it would be discontinued. Employee Latisha Reddick, one of the van users,
testified that Chan told the workers that the meeting was being held because a couple of staff
members who did not receive free transportation complained that others received that benefit.
She quoted Chan as saying that he can become a “bastard” if he “gets pushed in the corner.”
Horath testified that when the van policy was implemented the Union did not object, but
she conceded that she did not know whether the Union was notified of the policy when it was
created or whether it was even aware of the van service provided by the Respondent. She
further stated that she did not inform the Union that the van service would be discontinued, and
had no conversations with any management officials concerning whether the Union should be
notified of its cancellation. She did not receive a request for information from the Union
concerning the van service, and did not know whether the Union demanded bargaining
concerning its discontinuation. Nor did she receive a grievance or any communication from the
Union concerning the van service.
Alcoff testified that he was not notified by the Respondent that it had given a
transportation benefit nor of its intent to eliminate that benefit but only learned from employees
in June or July, 2006 that it was being discontinued. No grievance was filed concerning the
cancellation of the van service.
F. The Elimination of Non-Standard Work Shifts
The Respondent operates a three-shift schedule of work: 7:00 a.m. to 3:00 p.m., 3:00
p.m. to 11:00 p.m., and 11:00 p.m. to 7:00 a.m.
Sharon McLeod, a nursing assistant at the Respondent who has been employed for 6½
years and has been the Union’s shop steward at the facility for two to three years, worked the
3:00 p.m. to 7:00 p.m. afternoon shift five days per week.
In about May or June, 2006, McLeod requested permission to change her schedule so
that she would work the 7:00 a.m. to 3:00 p.m. shift on Wednesdays only so that she could
attend a class that day at 5:30 p.m. She would continue to work her regular 3:00 p.m. to 7:00
p.m. shift the rest of the week. Her request was granted for about one month but then she was
rescheduled to work her usual 3:00 p.m. to 7:00 p.m. shift on Wednesdays and she did so.
Upon learning that she was no longer permitted to work the morning shift on
Wednesday, McCleod asked schedule coordinator Hampton and human resources director
Horath for permission to accommodate her request and she was denied. She then filed a written
grievance on June 27 with Horath who told her that it would be given to director of nursing
Chan. The grievance was directed at Hampton’s conduct toward her. It stated in relevant part:
In the last few months, in executing my duties as Shop Steward, I
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have had to voice numerous complaints that staff have brought to
me regarding the unfair practices she [Hampton] has been
employing with regards to posting and allotment of overtime slots
in the schedule.
Since this time I have noticed a definite change in her behavior
towards me that could be deemed discriminatory.
Firstly, I made a verbal request for a change in my schedule so
that I could work on Wednesday mornings instead of Wednesday
evenings. For a time this request was honored, but since making
complaints about her work, I have been told that this change can
no longer be accommodated. However, as a longstanding
employee of the facility for over six years, I feel that this treatment
is unfair because I have never made a request for a schedule
change. Yet during this time I have seen numerous employees
come and go who have requested schedule changes and have
had their requests granted.
The letter further stated that McLeod received no response to her requests for time off or
for vacation, and noted that she spoke to management about Hampton’s “unprofessional
behavior on several occasions and have received no satisfactory response.”
Nursing staff meetings were held on the following two days and were attended by 25 and
30 employees, respectively, at which Chan and Horath were present.
According to employee McLeod, Chan announced that the meeting concerned “special
scheduling.” He noted that he has tried in the past to accommodate the staff when they needed
to change their work time due to child care or school, but he is “in a situation and when he feels
as if he’s cornered, he can become a bastard.” He said that 11 employees have special
schedules and he would speak to each one individually about their schedules.
Employee Wanda Lewis quoted Chan as saying that many employees were asking for
special privileges such as days off and that he was being “pushed up against the wall” because
“everyone was asking for the same days” and he could no longer accommodate these special
schedules.
Employee Reddick stated that at the meeting concerning the van service which took
place at about the time of the meetings relating to the accommodated schedules, Chan said that
many employees complained to the Union and the Labor Board about 11 workers who had
special schedules for religious reasons, and that those schedules would be stopped.
McLeod stated that two or three days after the meetings, Horath passed her in the
hallway and asked how she was doing. McLeod replied “I’m doing.” Horath responded that
McLeod did not look very happy and McLeod answered that she was not happy because it
appeared that 11 people were being punished because she asked for a schedule change.
Horath responded that when she filed the grievance and used the word “discrimination” Chan
“took it seriously.” Horath denied that this conversation occurred.
McLeod testified that about one month later, she was asked by Joel Willing, the
Respondent’s president and administrator to meet with him in his office. He told her that she has
been employed for six years and he has always tried to accommodate her. They then discussed
her grievance. McLeod explained that she needed to attend a class on Wednesday evening but
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she is scheduled to work at that time. She suggested that her day off on Thursday be changed
to Wednesday. Willing agreed and the grievance was settled in that manner. Thereafter,
McLeod continued to have a day off on Wednesday. Apart from only one month in May or June
in which she worked 7:00 a.m. to 3:00 p.m. on Wednesdays, she no longer was permitted to
work that shift.
Human resources director Horath testified that she brought McLeod’s request for a
schedule change to Chan who said that granting the request would not be possible. After
McLeod filed her grievance, Horath again spoke to Chan who said he wanted to “look more
closely” at the issue of accommodated schedules and how they affected staffing at the nursing
home. At that time he identified 11 employees who he believed were receiving accommodated
schedules and decided that such schedules would be eliminated. Chan did not testify.
Horath stated that at the meetings with the staff, Chan mentioned that 11 employees
received accommodated schedules which would be eliminated, but that he would meet with the
employees to discuss the matter. Horath at first testified that Chan said nothing else at the
meeting, but then on cross-examination noted that he said that all the requests for
accommodating schedules are “becoming overwhelming,” that 11 people receive such
schedules, and that he “can be a mean bastard.” Horath did not recall him saying that he was
being pushed against a wall or corner.
After the meetings, Horath examined the collective-bargaining agreement and noticed
that it provided that employees must work every other weekend (Saturday and Sunday). She
decided that as long as employees worked every other weekend they could retain their
accommodated schedules. She determined that of the 11 employees receiving accommodated
schedules, only three, Ara Awura, Juliana Jones and Simone Mentor, did not work every other
weekend. She reported this to Chan, noting that there was no need to alter the schedules of the
other eight workers.
The expired contract further provides that the regular work week shall be 37.5 hours
consisting of five consecutive days per week but the contract does not state on which specific
days of the week the employee must work except, as noted above, employees must work every
other weekend.
The three workers were told that they had to work every other weekend. Horath testified
that she sought to comply with the expired collective-bargaining agreement and for that reason
required the three employees whose schedules were accommodated by not working every other
weekend to work every other weekend.7
Mentor and Union representative Alcoff met with Horath in July, 2006. Mentor was
unable to work on Saturdays for religious reasons. They agreed that she work every Sunday
instead of every other Saturday and Sunday.
McLeod’s daughter, Juliana Jones, was one of the three employees with accommodated
schedules. She worked every Saturday but did not work on Sundays because of her school
schedule. In late August she was told by Chan that she would have to work one Sunday per

7 The General Counsel sought to discredit Horath’s believability in this regard by asking
whether the Respondent deducted union dues from its employees wages. Horath’s answer that
it did not is consistent with the legal principle that the dues deduction requirement does not
survive a contract’s expiration. Hacienda Resort Hotel & Casino, 331 NLRB 665, 667 (2000).
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month pursuant to the contract and that the Respondent could no longer accommodate her
requested schedule of not working Sundays.
The Respondent asserts that the expired contract’s provisions permitted it to act as it
did, as follows:
9. Work Week
F. The Employer is to provide scheduling of one weekend on with
the following weekend off for all employees so that all employees
will be on duty one weekend and off duty the following weekend.
21. Management Rights
The management of the establishment and the direction and
control of the property and work force shall remain with the
Employer. The rights herein described shall include but not be
limited to: the right to hire; lay off; discharge for just cause; in case
of emergencies to require that duties other than those normally
assigned be performed except that “emergencies” shall not exist
for longer than two days; to make reasonable working rules and
regulations of procedure and conduct, and to determine work
shifts. Provided however, that the exercise of all these rights must
be consistent with the terms and conditions of this Agreement and
are not to be used as to discriminate against any person by
reason of Union membership.
Analysis and Discussion
I. The Alleged Unilateral Changes
A. Was Impasse Reached
The complaint alleges that the Respondent made certain unilateral changes in its
employees’ terms and conditions of employment. “The general rule is that when parties are
engaged in negotiations for a new agreement an employer’s obligation to refrain from unilateral
changes encompasses a duty to refrain from implementation unless and until an overall
impasse has been reached on bargaining for the agreement as a whole.” Pleasantville Nursing
Home, 335 NLRB 961, 962 (2001), citing Bottom Line Enterprises, 302 NLRB 373 (1991). An
employer violates Section 8(a)(5) and (1) of the Act by implementing its final bargaining
proposals without reaching a bargaining impasse. Cotter & Co., 331 NLRB 787, 787-788 (2000).
The Respondent argues that an impasse in bargaining was reached.
In Taft Broadcasting Co., 163 NLRB 475, 478 (1967), the Board defined impasse as a
situation where “good-faith negotiations have exhausted the prospects of concluding an
agreement.” As later set forth in Hi-Way Billboards, Inc., 206 NLRB 22, 23 (1973) the Board
stated:
A genuine impasse in negotiations is synonymous with a
deadlock: the parties have discussed a subject or subjects in good
faith, and, despite their best efforts to achieve agreement with
respect to such, neither party is willing to move from its respective
position.
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The burden of demonstrating the existence of impasse rests on the party claiming
impasse – here the Respondent. Serramonte Oldsmobile, Inc., 318 NLRB 80 97 (1995). The
question of whether a valid impasse exists is a “matter of judgment” and among the relevant
factors are the “bargaining history, the good faith of the parties in negotiations, the length of the
negotiations, the importance of the issue or issues as to which there is disagreement, [and] the
contemporaneous understanding of the parties as to the state of negotiations.” Taft, above at
478.
Regarding bargaining history, Laurel Bay and the Union or its predecessor Local 1115
successfully negotiated three prior collective-bargaining agreements before the current
negotiation. Jasinski represented the Respondent since 1995. No unfair labor practice charge
had been filed against the Respondent prior to the instant matter.
Although eight bargaining sessions were held, the first four meetings were not
productive inasmuch as no economic proposals were presented at those meetings. The Union
presented its economic proposals at the fifth meeting, and the Respondent presented its
economic proposals at the sixth meeting. In the seventh meeting, in an effort to move the
negotiations, Alcoff accepted many of the Respondent’s objections to its proposals and
withdrew those demands. Also at the seventh meeting, Alcoff presented a written counteroffer to
the Respondent’s proposals. At the eighth and final meeting the Respondent made its last, best
and final offer and claimed that impasse had occurred. Thus, although there were eight
meetings, serious negotiating did not occur until the seventh meeting.
Another factor, the good faith of the parties, is put in question by the Respondent. It
asserts that the Union did not enter negotiations with an intent to reach agreement, but rather
bargained in bad faith. The Respondent contends that the Union appointed relatively
inexperienced bargainers Pimplaskar and Foley, gave them no authority to reach agreement
and that they acted as they did in order to “stall” the negotiations until the Tuchman agreement,
containing the most-favored-nations clause, was concluded. Indeed, Alcoff described Foley as
an “inexperienced bargainer” who had not bargained a contract to conclusion. Both Pimplaskar
and Foley were supervised by Alcoff in their preparation and presentation of the Union’s
proposals and their bargaining strategy.
In addition, the Respondent asserts that the Union had a fixed position in which it
insisted on certain raises in the Benefit Fund, demanded the same terms as the Tuchman
agreement, and engaged in regressive bargaining.
The main issue as to which there was basic disagreement was an important one - the
contribution to the Benefit Fund. The parties seemed far apart on this issue with the Union
demanding that the Respondent make contributions at a certain level and the Respondent
refusing to do so. There is much facial appeal in the Respondent’s argument that the Union
would not deviate from its position on that issue. Thus, its first demand, made in February,
2005, was for an increase of 21% of gross payroll with a cap of 24% during the life of the
agreement. Its next demand, made on June 17, was for an increase of 22.33% with no
assurance that it could not be raised. The Union’s final demand, made on August 5 was for a
22.33% increase which could not be raised except by mutual agreement.
Accordingly, it is clear that the Union maintained a relatively fixed position regarding this
vital issue until the final bargaining session on August 23. The evidence supports a finding that
the Union sought the same Benefit Fund raises as that set forth in the recently negotiated
Tuchman master contract. Thus, the increase demanded by the Union was virtually identical to
that in the Tuchman contract. The Respondent’s argument that the Union was reluctant to
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deviate from the increase set forth in the Tuchman contract because of the most-favored-
nations-clause present there is also supported by the record. Thus, Jasinski quoted all the
Union’s bargainers as saying that they could not accept any lower benefit increase than that in
the Tuchman agreement. Although Foley and Alcoff denied those comments, Jasinski gave
uncontradicted testimony that Pimplaskar had the same approach.
Indeed, there is nothing in the Union’s written proposals to indicate that it intended to
depart from the Tuchman agreement regarding raises in the Benefit Fund. The parties’ course
of bargaining demonstrates that the Union never proposed a Benefit Fund increase which was
lower than the raise ultimately agreed to in the Tuchman agreement – 22.33%,8 and the
Respondent consistently insisted that it would not agree to a higher rate than its offer of 16%.
See Richmond Electrical Services, 348 NLRB No. 62, slip op. at 2-3 (2006), cited by the
Respondent.
Impasse over a single issue may create an overall bargaining impasse that privileges
unilateral action if that issue is “of such overriding importance” to the parties that the impasse on
that issue frustrates the progress of further negotiations. Calmat Co., 331 NLRB 1084, 1087
(2000). Because the Benefit Fund increase was an issue of such critical and overriding
importance, the parties’ possible impasse over that issue until August 23 justified the
Respondent’s belief that further bargaining would be futile. However, if impasse occurred, it was
broken at the final, August 23 session when Alcoff suggested that the Union would consider
another plan, including the Respondent’s plan for its non-union employees, and prepare a
counteroffer.
Regarding the final factor, the Union did not consider the parties to be at impasse. When
the Respondent announced on August 23 that it was making its last, best and final offer, I credit
Alcoff’s testimony that he announced at that meeting that if the Respondent would not raise its
offer on the Benefit Fund, the Union would “look at other plans,” including the plan the
Respondent provided its non-union workers. Respondent’s official Dennin conceded that Alcoff
may have asked if the Employer had a plan. As conceded by Dennin, there was at least a
mention of alternative plans made at the meetings, with Alcoff inquiring if the Employer had a
plan. Alcoff suggested that there was “wiggle room” in the proposal, and that he would prepare
a counterproposal. He requested, and the Respondent agreed to another bargaining session.
Such statements support a finding of no impasse. Ead Motors Eastern Air Devices, 346 NLRB
No. 93, slip op. at 5 (2006).
The evidence supports a finding that, on August 23 Alcoff was willing to consider other
health plans. Thus, his credited testimony was that following the signing of the Tuchman
agreement, in 2005 the Union signed contracts with six named nursing homes in New Jersey in
which those contracts did not provide that the Benefit Fund would be the representative health
plan for the unit employees.
The Union demonstrated its willingness to compromise by Alcoff’s acceding to the
Respondent’s objections to the Union’s proposals at the August 5 meeting, and in its letter of
August 31, before the Respondent implemented any of its proposals, advising Jasinski that he
would prepare a counterproposal on the remaining open issues, including the Benefit Fund.
“For impasse to occur, both parties must be unwilling to compromise.” Grinnell Fire
Protection Systems Co., 328 NRLB 585, 585 (1999) or believe that further proposals could no

8 The initial demand for a 21% raise was capped at 24%.
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longer be fruitful. Huck Mfg. Co. v. NLRB, 693 F.2nd 1176, 1186 (5th Cir. 1982); Larsdale, Inc.,
310 NLRB 1317, 1318 1993). “Impasse can exist only if both parties believe that they are ‘at the
end of their rope.’” Cotter & Co., 331 NLRB 787, 788 (2000). Thus, there must be a
contemporaneous understanding by both parties that they had reached impasse. Essex Valley
Visiting Nurses Assn., 343 NLRB 817, 841 (2004). Here, the Union believed that the parties
were not at impasse and so advised the Respondent at the final meeting.
In Cotter & Co., 331 NLRB 787, 788 (2000), in finding that no impasse had taken place,
the Board noted that prior to the respondent’s declaration of impasse, there had been
movement on important issues and the union had demonstrated flexibility. Here too, on August
23, the Union advised that it would consider another plan, inquired as to the Respondent’s
health plan in effect for its nonunit employees, and said that it would prepare a counterproposal.
In light of Alcoff’s protestations and questions after impasse was declared on August 23,
his offer to prepare a counterproposal, and agreement by both sides to meet again, it appears
that the “contemporaneous understanding” of the parties at that time regarding the state of the
negotiations weighs against a finding that a valid impasse was reached. NewcorBay City
Division, 345 NLRB No. 104, slip op. at 11 (2005). In light of the Union’s willingness to continue
bargaining I cannot find that the parties had reached a deadlock on this issue. Whether the
parties could be expected to resolve their differences is unknown. What is known is that the
Union offered, and the Respondent agreed to continue to bargain.
J.D. Lunsford Plumbing, 254 NLRB 1360, 1364-1365 (1981); Calmat Co., 331 NLRB
1084, 1099 (2000) and Richmond Electrical Services, all cited by the Respondent, may be
distinguished in that the unions in those cases refused to accept any terms different than
standard, area contracts and in Richmond, the union conceded that the most favored nations
clause precluded it from agreeing with the employer on a lower wage than the one in the
industry-wide agreement. Here, however, the Union agreed to consider the Respondent’s health
plan in effect for its nonunion workers, indicated flexibility by stating that it would prepare a
comprehensive counterproposal, and maintained that there was wiggle room in its proposal.
“It is well settled that parties have a continuing obligation to bargain even though they
have reached a lawful impasse.” Roosevelt Memorial Medical Center, 348 NLRB No. 64, slip
op. at 2 (2006). The Supreme Court stated in Charles D. Bonanno Linen Service v. NLRB, 454
U.S. 404, 412 (1982):
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, through either a change of mind or the
application of economic force.” … Furthermore, an impasse may
be “brought about intentionally by one or both parties as a device
to further, rather than destroy, the bargaining process.” … Hence,
“there is little warrant for regarding an impasse as a rupture of the
bargaining relation which leaves the parties free to go their own
ways.”
As the court stated in Taft, “although some bargaining may go on even in the presence
of a deadlock, it is a “fundamental tenet of the Act that even parties who seem to be in
implacable conflict may, by meeting and discussion, forge first small links and then strong bonds
of agreement…. The Board’s finding of impasse reflects its conclusion that there was no
realistic possibility that continuation of discussion at that time would have been fruitful.”
Television Artists v. NLRB, 395 F.2nd 622, 628 (D.C. Cir. 1968). “Anything that creates a new
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possibility of fruitful discussion (event if it does not create a likelihood of agreement) breaks an
impasse … [including] bargaining concessions implied or explicit.” PRC, 280 NLRB 615, 636
(1986). Here, Alcoff’s statements at the August 23 session that the Union would consider
another health plan including the Respondent’s plans provided for its non-union workers
certainly created a “new possibility of fruitful discussion.” Accordingly, if an impasse had
occurred prior to August 23 it was broken by the end of the session that day.
In finding that no impasse occurred, the Board in NewcorBay City Division, above, slip
op. at 11, observed that when the respondent asserted that the parties were at impasse, the
union agent asked to continue bargaining and assured the employer that it was prepared to
negotiate. It was expected that the union would make concessions depending on what
information the employer provided. The Board found that no impasse occurred even though the
union “had not yet offered specific additional concessions, but only declared its intention to be
flexible and continue bargaining.” See Ead Motors, above, slip op. at 5. The Board also 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. Newcor, above, slip op. at 10-
11. Similarly, the evidence here shows that the Union officials were not at the end of their
negotiating rope, but were ready and apparently willing to negotiate further.
As in Serramonte Oldsmobile, 318 NLRB 80, 98 (1995), at the final bargaining session,
“all the elements of a genuine impasse in bargaining were in place.” However, in Serramonte as
here, Alcoff’s statements represented “serious movement – a substantial effort” to bridge the
gap in positions. Thus, Alcoff’s statement that the Union would consider another health plan and
that he would prepare a counterproposal signaled that movement was possible. That does not
mean that the Union could be expected to change its position and withdraw from its insistence
that the Tuchman agreement’s Benefit Fund rate be agreed to, but it is “realistically possible”
that continued discussion would have been fruitful. Inasmuch as the Union did not, by August 23
request, receive or evaluate the health insurance plan provided by the Respondent to its non-
unit employees, it cannot be said that the Union would have made no further movement on that
issue in a later session.
Similar to the instant case, in Grinnell Fire Protection Systems Co., 328 NLRB 585, 586
(1999), the Board found that no impasse had occurred where the union had not yet offered
specific concessions, but on the last day of negotiations had declared its intention to be flexible,
said it did not want impasse, sought another bargaining session and asked for a federal
mediator. “The essential question is whether there has been movement sufficient ‘to open a ray
of hope with a real potentiality for agreement if explored in good faith in bargaining sessions.’”
Hayward Dodge, 292 NLRB 434, 468 (1989). I find that such ray of hope presented itself at the
last bargaining session here.
Rochester Telephone Corp., 333 NLRB 30, 65 (2001), cited by the Respondent, is
distinguishable. The Board held there that “a party’s bare assertions of flexibility on open issues
and its generalized promise of new proposals [do not clearly establish] any change, much less a
substantial change in that party’s negotiating position….. Such a change must surely
encompass a new position or specific proposals responsive to the employer’s bargaining
proposals.” Here, the Union sought specific information as to the open issues, specifically the
most important one – the Benefit Plan. The Union said that it would consider other plans which
was a substantial change from its prior position, and asked for the summary plan descriptions of
the plans in effect for the Respondent’s nonunit employees and the monthly costs to the
Respondent and the employees for the plans. Armed with such information it is conceivable that
the Union would change its position.
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The Respondent asserts that Alcoff asked numerous questions at the end of the August
23 bargaining session in an attempt to preclude an otherwise valid impasse. E.I. du Pont & Co.,
346 NLRB No. 55, slip op. at 6, fn. 9 (2006). Although there is some support for finding that
Alcoff desperately asked a large number of questions of Jasinski at the last session in order to
forestall a finding of impasse, and perhaps he did so inasmuch as Jasinski declared that
impasse had occurred, nevertheless, he asked those questions in a good faith effort to explore
the Respondent’s proposals and prepare a counteroffer responsive to those proposals. He also
indicated a willingness to meet again.
I thus cannot find that the Union’s willingness to continue talks was a “mere token offer”
made for the ulterior purpose of precluding the unilateral implementation of certain terms. NLRB
v. H & H Pretzel Co., 831 F.2nd 650, 656 (6th Cir. 1987) as argued by the Respondent. In that
case the union did not make a new proposal or indicate a willingness to compromise further on
any specific issue. Here, the Union offered to make a new proposal, offered to consider other
health plans and said there was wiggle room in its proposal. In addition, Alcoff’s questions were
all relevant to the Respondent’s bargaining proposals and were intended to elucidate such
proposals and permit the Union to learn their basis so that it could prepare counterproposals.
In ACF Industries LLC, 347 NLRB No. 99, slip op. at 4 (2006), cited by the Respondent,
the Board found that the union’s request for information made after months of extensive
bargaining and after its rejection of the employer’s final offer was “purely tactical and was
submitted solely for purposes of delay.” Unlike here, the Board noted that no negotiations were
scheduled and the union showed no interest in post-implementation bargaining.
Even assuming that there had been impasse before the end of the August 23 session,
there was no legally cognizable impasse on September 1, the date of the Respondent’s
unilateral implementation of the wage increase. This is so because any impasse was broken
when the Union informed the Respondent on August 23 that it was prepared to make a
counterproposal and that it sought further bargaining. Accordingly, any impasse that arguably
existed here was broken prior to the Respondent’s unilateral implementation of the wage
increase. See Jano Graphics, Inc., 339 NLRB 251, 251 (2003) where the Board found that any
impasse that existed was broken when the union informed the employer that it had new
proposals and was seeking further bargaining. Here, although the Union did not present new
proposals it immediately sought information at the last session, announced that it would prepare
a counterproposal and in a letter sent eight days letter which stated that it was preparing a
“comprehensive counterproposal.” Thus, assuming that the information was forthcoming a
counterproposal may have been made.
The mere fact that the Union refuses to yield does not mean that it
never will. Parties commonly change their position during the
course of bargaining notwithstanding the adamance with which
they refuse to accede at the outset. Effective bargaining demands
that each side seek out the strengths and weaknesses of the
other’s position. To this end, compromises are usually made
cautiously and late in the process. Detroit Newspaper Local 13 v.
NLRB, 598 F.2nd 267, 273 (D.C. Cir. 1979).
It thus cannot fairly be said that by the end of the August 23 session or thereafter, the
parties had exhausted all possibilities of reaching agreement. Accordingly, the Respondent’s
declaration of impasse, implementation of parts of its final offer, and unilateral changes in its
employees’ terms and conditions of employment were premature and violated Section 8(a)(5)
and (1) of the Act.
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B. The Alleged Unilateral Changes in Conditions of Employment
Section 8(a)(5) prohibits an employer from unilaterally instituting changes regarding
wages, hours, and other terms and conditions of employment before reaching a good faith
impasse in bargaining. NLRB v. Katz, 369 U.S. 736 (1962).
The complaint alleges that following the expiration of the collective-bargaining
agreement on March 31, 2005, the Respondent made unilateral changes in certain mandatory
subjects of bargaining with respect to the terms and conditions of its employees without giving
the Union an opportunity to bargain with it concerning those matters. The answer to the
complaint asserts that the Respondent was entitled to make changes and implement parts of its
final offer because it reached impasse in negotiations with the Union, it did not have an
obligation to bargain with the Union regarding permissive subjects of bargaining, and that the
contract’s “management rights clause” permitted it to make such changes.
I have found above that the parties had not reached impasse in bargaining, and that if an
impasse was reached it was broken at the final bargaining session on August 23.
In addition, it is well settled that a “contractual reservation of management rights does
not extend beyond the expiration of the contract in the absence of evidence of the parties’
contrary intentions.” Long Island Head Start Child Development Services, 345 NLRB No. 74,
slip op. at 1 (2005); Blue Circle Cement Co., 319 NLRB 954, 954 (1995); Paul Mueller Co., 332
NLRB 312, 313 (2000). There is no evidence in the expired contract or elsewhere that the
parties intended the management rights clause to survive the expiration of the agreement.
Accordingly, the Respondent may not rely on the management rights clause in the expired
contract to justify its unilateral changes.
Even assuming that the management rights clause survived the expiration of the
contract, a unilateral change in a mandatory subject of bargaining is permitted only if the union
clearly and unmistakably waives its right to negotiate over the changes. See Metropolitan
Edison co. v. NLRB, 460 U.S. 693, 708 (1983). The Court stated there that “we will not infer
from a general contractual provision that the parties intended to waive a statutorily protected
right unless the undertaking is ‘explicitly stated.’” To meet the “clear and unmistakable”
standard, the contract language must be specific, or it must be shown that the matter claimed to
have been waived was fully discussed by the parties and that the party alleged to have waived
its rights consciously yielded its interest in the matter. Allison Corp., 330 NLRB 1363, 1365
(2000). No such showing has been made here.
1. The Implementation of a Wage Increase
The complaint alleges and the Respondent admits that on about September 1, 2005
following the expiration of the collective-bargaining agreement, it implemented a 3% wage
increase for all unit employees retroactive to August 14, 2005. The Respondent’s answer to the
complaint asserts that the parties bargained to impasse and it therefore had the right to
unilaterally implement its last best offer.
First, inasmuch as I have found above that no legally permissible impasse occurred, the
Respondent was not privileged to implement its 3% wage offer. Second, the Respondent gave
no notice to the Union that it would implement a wage increase. By doing so it violated Section
8(a)(5) of the Act.
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2. The Issuance of Merit Bonuses
The complaint also alleges and the Respondent admits that on about December 29,
2006, it issued merit bonuses to unit employees. The Respondent’s answer asserts that “any
wage adjustments … were consistent with its legal obligations to the Union.” Alcoff stated that
on January 4, 2007 he first learned, from employee McLeod, that a merit bonus was given in
late December. The Union did not receive any prior notice from the Respondent that it would
give merit bonuses to unit employees.
The expired contract states that “nothing contained herein shall prevent the Employer
from giving merit increases, bonuses, or other similar payments provided the Union has first
been apprised of same.” The Employer’s offer presented to the Union on July 8, 2005 stated
that upon the employee’s anniversary, it has the right, in its sole discretion to provide a merit
bonus or merit pay to employees and that such decision shall not be subject to the grievance
and arbitration procedure.
I credit Alcoff’s undisputed testimony that no notice was given to the Union that the
Respondent intended to issue merit bonuses. Even according to the expired contract the
Respondent was required to advise the Union of such bonuses. It is clear that it did not do so.
The Union not only did not waive its statutory right to be notified of the implementation, the
expired contract required that the Union be notified of its implementation.
I also find, as set forth above, that no valid impasse had been reached at the parties’ last
bargaining session, and that no valid impasse existed at the time of the implementation of merit
bonuses 16 months after the last bargaining session. Accordingly, inasmuch as no impasse had
occurred at the time the bonuses were implemented, the Respondent could not validly
implement the increases.
Assuming that impasse had occurred, ordinarily, an employer may establish new terms
and conditions of employment as set forth in its bargaining proposals. However, an exception
exists where clauses confer on an employer “broad discretionary powers that effect recurring
unilateral decisions regarding changes in the employees’ rates of pay… Allowing the employer
to implement upon impasse a clause that reserved the right to unilaterally exert unlimited
managerial discretion over future pay increases would be so inherently destructive of the
fundamental principles of collective bargaining that it would not be sanctioned as part of a
doctrine created to break impasse and restore active collective bargaining.” McClatchy
Newspapers, 321 NLRB 1386, 1391 (1996).
Even if a valid impasse was reached, merit increases, being a mandatory subject of
bargaining involving the application by the Respondent of “unlimited managerial discretion over
future pay increases, i.e., without explicit standards or criteria….” could not have been
implemented without bargaining over the method of implementation. McClatchy Newspapers,
above at 1390. “Such a result would be antithetical to our statutory system of collective
bargaining meant to promote industrial stability.” McClatchy, above, at 1391. See Colorado-Ute
Electric Assn., 295 NLRB 607, 609 (1989). In this connection it should be noted that the facts in
McClatchy are similar to those here. In McClatchy, the expired agreement included a merit
increase pay system which, as here, gave the employer “ultimate discretion over the timing and
amount of individual merit increase” and which were not subject to the grievance-arbitration
provisions of the contract. See NLRB v. Katz, 369 U.S. 736, 746 (1962). The result in McClatchy
therefore controls here.
I accordingly find and conclude that the Respondent’s issuance of merit bonuses
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violated Section 8(a)(5) of the Act.
3. The Elimination of a Transportation Benefit
It is alleged that the Respondent unilaterally unlawfully eliminated a transportation
benefit providing bus/van service to and from work for unit employees.
The Respondent denies that its actions violated the Act and alternatively asks that this
allegation be deferred to the grievance-arbitration provisions of the parties’ contract. Regarding
its request for deferral of this allegation, the Respondent argues that it has continued to process
grievances arising under the contract and offers, in its brief, to waive any timeliness defenses
and proceed directly to arbitration. I find that deferral is inappropriate inasmuch as the contract
expired 16 months before the elimination of the transportation benefit. Accordingly, “there is no
contract in existence under which the parties are mutually bound by an agreed-upon grievance-
arbitration procedure.” Arizona Portland Cement Co., 281 NLRB 304, fn. 2 (1986).
It is clear that providing free transportation to its employees is a term and condition of
employment and is thus a mandatory subject of bargaining.
It is undisputed that the Respondent never notified the Union that it was instituting this
benefit and never notified it that it was discontinuing it. Although the Respondent argues that the
transportation was a temporary service and that the employees were notified that it could be
discontinued at any time, it was, nevertheless, a benefit provided to employees and a
mandatory subject of bargaining.
By failing to notify the Union of the discontinuance of the free van service and by
unilaterally eliminating it, the Respondent violated Section 8(a)(5) of the Act.
4. The Elimination of Non-Standard Work Shifts
It is alleged that the Respondent unilaterally eliminated non-standard work shifts for its
unit employees in violation of Section 8(a)(5) of the Act and in violation of Section 8(a)(3) of the
Act.
As set forth above, shop steward Sharon McLeod requested and was granted, for about
one month, a change in her schedule so that she could work the 7:00 a.m. to 3:00 p.m. shift
instead of the 3:00 p.m. to 7:00 pm. shift on Wednesdays. Thereafter, that accommodation was
denied. It is undisputed that no notice was given to the Union that her accommodated schedule
would be eliminated.
The Respondent’s defense to this allegation is that the management rights clause in its
expired contract permitted it to take this action. The management rights clause provides that the
Respondent has the right to “to determine work shifts.” As I have found above, the management
rights clause did not survive the expiration of the contract.
The evidence supports a finding that 11 employees had accommodated schedules
where, for one reason or another, their work schedules differed from those they were assigned
by the Respondent. They had apparently requested those different schedules as an
accommodation and were granted those accommodated schedules.
The Respondent’s reaction to McLeod’s filing of a grievance to the elimination of her
accommodated schedule was to investigate which of the 11 workers were not adhering to the
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contract’s requirement that they work every other weekend.9 It determined that only three
employees were not working every other weekend as required. It was decided that the other 8
employees, who did work every other weekend could retain their accommodated schedules.
However, although McLeod apparently did work every other weekend, she was not permitted to
retain her accommodated schedule.10 No evidence was adduced as to whether employees
other than McLeod who enjoyed accommodated schedules in fact retained those schedules as
testified by Horath although she quoted Chan as saying that the accommodated schedules of all
11 employees would be eliminated.
Thus, although McLeod worked every other weekend she was not permitted to retain her
accommodated schedule which she had enjoyed for one month, and pursuant to which she
worked the early shift on Wednesdays. The fact that the matter was subsequently settled by
changing her day off to Wednesday at her request does not alter the fact that her
accommodated schedule was unilaterally changed by the Respondent without notice to the
Union.
Inasmuch as the General Counsel has the burden of proving that the accommodated
schedules of the eight employees were actually eliminated, and since there is no evidence to
contradict Horath’s testimony that the eight employees other than McLeod retained their
accommodated schedules, the affirmative Order issued herein will be confined to McLeod.
I accordingly find that the Respondent, in violation of Section 8(a)(5) of the Act
eliminated the accommodated schedule of Sharon McLeod unilaterally without offering to
bargain with the Union about that matter.
The complaint also alleges that the accommodated schedules were eliminated in
retaliation for the employees’ union activity. The evidence supports this allegation. As set forth
above, shop steward McLeod’s grievance which complained that other employees were granted
accommodated schedules, prompted a meeting by nursing director Chan at which he
announced that the accommodated schedules of 11 employees would be eliminated. McLeod’s
testimony, corroborated in material part by official Horath, quoted Chan as saying that such
requests are “becoming overwhelming,” he believes that he is being “cornered” and can be a
“bastard.”
There was no evidence as to why such requests were overwhelming and what prompted
Chan to announce that he could be a “bastard”. Inasmuch as the meetings of all nursing staff
were held shortly after McLeod filed the grievance, it is clear that Chan’s announcement was
related to that grievance. His reaction to the grievance complaining that other employees
enjoyed such accommodated schedules was his announcement that all accommodated
schedules would be eliminated. I accordingly find that the counsel for the General Counsel has
made a prima facie showing that the elimination of McLeod’s accommodated schedule was
motivated by her filing the grievance. Wright Line, 251 NLRB 1083 (1980).
The Respondent has not met its burden of proving that it would have eliminated
McLeod’s accommodated schedule if she had not filed a grievance. It gave no reasons why it
did not restore her schedule as it had, according to Horath, decided not to eliminate the
schedules of those who worked every other weekend. Although McLeod suggested that she

9 There is nothing unlawful or improper in the Respondent’s requiring employees to work
every other weekend.
10 There was no claim that McLeod did not work every other weekend.
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change her day off so that she could attend class on Wednesday evening, such a change
should not have been necessary. I accordingly find and conclude that the Respondent
eliminated McLeod’s accommodated schedule in violation of Section 8(a)(3) of the Act.
In addition, I find that Chan’s announcement that all accommodated schedules would be
eliminated violated Section 8(a)(1) of the Act.
II. The Union’s Requests for Information
It is alleged that on August 31, September 2, November 23, 2005, July 10, 2006 and
January 10, 2007, the Union requested and the Respondent failed and refused to furnish certain
information. It is alleged that the information is necessary for and relevant to the performance of
the Union’s duties as the exclusive collective-bargaining representative of the unit employees.
The Respondent’s answer to the complaint asserts that it provided the Union with “any and all
information as required under the Act and as requested,” and that the letters set forth above do
not constitute valid information requests under the Act.
The five letters requesting information and Alcoff’s reasons for the requests are
discussed in detail above. Broadly, the five letters requested information (a) so that the Union
could prepare a counterproposal to the Respondent’s final offer (b) clarifying the Respondent’s
proposals (c) regarding terms and conditions of employment of the unit employees (d)
concerning whether the Respondent implemented other parts of its final offer (e) concerning
alleged unilateral changes made by the Respondent (f) including a list of employees with their
dates of hire, wage rates, benefits, etc. to update previous information received.
As set forth above, I have found that no valid impasse has occurred. Even assuming,
however, that impasse took place, an employer has an obligation to furnish information in order
to enable the union to perform its duties as the collective-bargaining representative of the unit
employees. NLRB v. Acme Industrial Co., 385 U.S. 432, 435-437 (1967). The Board has held
that because an impasse is viewed as “only a temporary deadlock or hiatus” in bargaining, the
bargaining process contemplates that with the passage of time following such a hiatus, positions
will be modified and bargaining will be resumed. During such a hiatus, an employer has a duty
to supply relevant information. Accordingly, it has been held that an employer cannot justify its
refusal to provide relevant information because the request was made after impasse. Watkins
Contracting, Inc., 335 NLRB 222, 225 (2001). Regardless of whether the parties reached
impasse, the Union remained the bargaining agent for the unit and was presumptively entitled to
information that it needed to carry out its representative duties.
In Caldwell Mfg. Co., 346 NLRB No. 100, slip op. at 1-2 (2006), the Board set out the
relevant law:
An employer’s duty to bargain includes a general duty to provide
information needed by the bargaining representative to assess
claims made by the employer relevant to contract negotiations.
Generally, information pertaining to employees within the
bargaining unit is presumptively relevant….The burden to show
relevance is not “exceptionally heavy,” and “the Board uses a
broad, discovery-type of standard in determining relevance in
information requests.”
Moreover, the Respondent’s own bargaining positions made the requested information
directly relevant. In Caldwell, above, slip op. at 2, the Board found that the employer “premised
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its bargaining positions on specific assertions and the charging party requested information to
evaluate and verify the respondent’s assertions and develop its own bargaining positions.” It
stated that certain information requested of the employer was relevant and necessary “to
evaluate the accuracy of the respondent’s specific claims and to respond appropriately with
counterproposals.” It found that the union’s requests were “narrowly tailored in response to the
respondent’s own claims….” Accordingly the Board found that the “respondent, in the course of
bargaining, made the information relevant and created the obligation to provide the requested
data.” Here, too, the Union sought certain information in order to clarify the Respondent’s
claims, enable it to cost out the Respondent’s proposals and develop a comprehensive
counterproposal.
I accordingly find that the information requested in the five letters, all of which was
presumptively relevant in that it pertained to the unit employees, was necessary for and relevant
to the performance of the Union’s duties as the exclusive collective-bargaining representative of
the unit employees. The Respondent’s reasons for failing to provide the information requested,
that it was only an attempt to stall bargaining and that the information requested was duplicative
of information already given to the Union do not have merit.
The Respondent’s failure to furnish the information requested violated Section 8(a)(5) of
the Act.
III. The Respondent’s Alleged Failure to Meet and Bargain
It is alleged that since October 4, 2005, the Union requested that the Respondent meet
and bargain with it for the purpose of negotiating a successor collective-bargaining agreement
and the Respondent failed to do so. The Respondent’s answer asserts that the Union engaged
in surface bargaining and has failed to act and/or bargain with the Respondent in good faith.
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...." “It is well settled that parties have a
continuing obligation to bargain even though they have reached a lawful impasse. Roosevelt
Memorial Medical Center, 348 NLRB No. 64, slip op. at 2 (2006); Paul Mueller Co., 332 NLRB
312, 317 (2000).
In its October 4, 2005 letter, the Union advised that it was available for negotiations on
seven dates in October and requested that a mediator be present. Not having received a
response, on November 14 Alcoff advised that the Union was available on fourteen dates in
November and December. On November 18, Jasinski advised that he could meet on December
1, 9, and 13 or 19, and asked Alcoff to call to confirm. I noted above that Jasinski’s testimony
that Alcoff did not respond to this letter was contradicted by Alcoff’s letter of November 23 in
which he confirmed that he was available on December 9 and 19. As set forth above, the parties
agreed that they were available to meet on December 9 and 19, and Alcoff called Jasinski’s
office on December 8 to confirm their meeting the following day. Inexplicably, Jasinski’s fax of
December 8 stated that he (Alcoff) did not confirm the December 9 date and that he (Jasinski)
was not available on December 9, but did admit that Alcoff called on December 8 to confirm
their meeting.
As Jasinski had previously committed to meet on December 19, Alcoff immediately
sought to hold him to that date but Jasinski claimed that Union agent Degeneste called to
cancel that meeting due to an impending snowstorm. Alcoff credibly denied that Degeneste
would have or could properly have canceled the meeting, particularly since the parties had not
met for nearly four months and the Union was trying to have a negotiating session.
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In late December, Alcoff wrote, and suggested four meeting dates in January, 2006. No
response was received and Alcoff wrote again on January 19, stating that he was available on
every day between February 4 and March 2. No response to this offer was made.
Despite Jasinski’s claim in his October 30, 2006 letter that he was willing to meet, he has
not replied to a number of the Union’s requests to meet and bargain and in fact has not met with
the Union through the date of the hearing,1½ years after the final bargaining session in August,
2005. Thus, Alcoff offered to meet in mid December, 2006 and in late January and early
February, 2007. No response was received by the Respondent.
The above makes it clear that the Respondent had no intention of fulfilling its obligation
to meet and bargain with the Union. Despite the fact that the Union proposed numerous dates to
bargain, the Respondent failed to meet with it on any. The Respondent proposed meeting in
only two periods of time: December 9 and 19, 2005, and during the week of January 29, 2007.
The Union agreed to December 9 and 19, 2005 and to January 30, 31 and February 1, 2007.
However, no meeting took place because of the actions of the Respondent in denying that
Alcoff timely confirmed one December meeting and incredibly claiming that a Union agent
cancelled the other December meeting. The Respondent never confirmed the Union’s
agreement to meet in January and February, 2007.
The Respondent claims that it did not meet with the Union because the Union refused to
meet unless it was given the information requested. I have found above that the information was
presumptively relevant and necessary to the Union’s performance of its representational duties.
In addition, the Union did not condition meeting on its receipt of the information requested. It
offered to meet without condition but the Respondent failed to respond to its requests. When the
Respondent agreed to meet, it did not confirm the dates it had requested.
Based on the above, I find and conclude that the Respondent has not met its obligation
to meet and bargain with the Union in good faith.
Conclusions of Law
1. The following employees constitute a unit appropriate for collective-bargaining within
the meaning of Section 9(b) of the Act:
All full-time and regular part-time licensed practical nurses, nurses
aides, recreational aides, beauticians, housekeeping aides,
laundry employees and dietary employees employed by the
Employer at its Keansburg, New Jersey facility, excluding all office
clerical employees, registered nurses, professional employees,
guards and supervisors as defined in the Act.
2. At all times material herein the Union has been the exclusive collective-bargaining
representative of the employees in the above unit.
3. The Respondent violated Section 8(a)(5) and (1) of the Act by prematurely declaring
impasse and unilaterally implementing certain changes in its employees terms and conditions of
employment when the parties were not at a valid, good-faith impasse in bargaining.
4. The Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally
implementing a 3% wage increase for unit employees.
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5. The Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally eliminating
a transportation benefit providing bus or van service to and from work for unit employees.
6. The Respondent violated Section 8(a)(5) and Section 8(a)(3) and (1) of the Act by
unilaterally ending an accommodated schedule for Sharon McLeod.
7. The Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally issuing
merit bonuses to unit employees.
8. The Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to
supply information requested by the Union in its letters of August 31, September 2, November
23, 2005, July 10, 2006 and January 10, 2007, which was necessary for and relevant to the
performance of the Union’s duties as the exclusive collective-bargaining representative of the
unit employees
9. The Respondent violated Section 8(a)(5) and (1) of the Act by failing to meet with the
Union since October 4, 2005 for the purpose of negotiating a successor collective-bargaining
agreement.
10. The Respondent violated Section 8(a) (1) of the Act by announcing to its employees
that their accommodated schedules would be eliminated.
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. Specifically, inasmuch as I have found that no legally valid
impasse in bargaining has been reached, I recommend that the Respondent be ordered to
rescind the unilateral changes it made on or after April 1, 2005, but nothing in the Order is to be
construed as requiring the Respondent to cancel any unilateral changes that benefited the unit
employees without a request from the Union. I shall order the Respondent to make whole the
unit employees for any loss of earnings and other benefits, computed on a quarterly basis from
date of discharge to date of proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended11
ORDER
The Respondent, Laurel Bay Health & Rehabilitation Center, its officers, agents,
successors, and assigns, shall
1. Cease and desist from

11 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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(a) Failing and refusing to bargain in good faith over the terms and conditions of a
successor collective-bargaining agreement with SEIU 1199 New Jersey Health Care Union as
the exclusive bargaining representative of the employees in the following unit:
All full-time and regular part-time licensed practical nurses, nurses
aides, recreational aides, beauticians, housekeeping aides,
laundry employees and dietary employees employed by the
Employer at its Keansburg, New Jersey facility, excluding all office
clerical employees, registered nurses, professional employees,
guards and supervisors as defined in the Act.
(b) Implementing its last offer to the Union or parts of its last offer before the parties have
reached a lawful impasse during negotiations.
(c) Making unilateral changes in its unit employees’ terms and conditions of employment
without first bargaining with the Union to impasse.
(d) Failing and refusing to supply information that is relevant and necessary to the
Union’s performance of its duties as the exclusive collective-bargaining representative of the
Respondent’s unit employees.
(e) Failing to meet with the Union to engage in good faith bargaining for the purpose of
negotiating a successor collective-bargaining agreement.
(f) Announcing to its employees that their accommodated schedules would be
eliminated.
(g) 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, bargain with the Union as the exclusive representative of the employees
in the following appropriate unit concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed agreement:
All full-time and regular part-time licensed practical nurses, nurses
aides, recreational aides, beauticians, housekeeping aides,
laundry employees and dietary employees employed by the
Employer at its Keansburg, New Jersey facility, excluding all office
clerical employees, registered nurses, professional employees,
guards and supervisors as defined in the Act.
(b) On request, cancel and rescind all terms and conditions of employment which it
unlawfully implemented or unlawfully eliminated on and after April 1, 2005, but nothing in this
Order is to be construed as requiring the Respondent to cancel any unilateral changes that
benefited the unit employees without a request from the Union.
(c) At the Union’s request, restore to unit employees the terms and conditions of
employment that were applicable prior to April 1, 2005, and continue them in effect until the
parties either reach an agreement or a good-faith impasse in bargaining.
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(d) At the Union’s request, restore the accommodated schedule given to Sharon McLeod
pursuant to which she worked the 7:00 a.m. to 3:00 p.m. shift on Wednesdays.
(e) Make whole the unit employees for any losses suffered by reason of the unlawful
unilateral changes in terms and conditions of employment, on and after April 1, 2005, plus
interest.
(f) Furnish to the Union in a timely manner the information requested in the Union’s
letters dated August 31, September 2, November 23, 2005, July 10, 2006 and January 10,
2007.
(g) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful elimination of Sharon McLeod’s accommodated schedule, and within 3
days thereafter notify her in writing that this has been done and that such action will not be used
against her in any way.
(h) 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.
(i) Within 14 days after service by the Region, post at its facility in Keansburg, New
Jersey, copies of the attached notice marked “Appendix.”12 Copies of the notice, on forms
provided by the Regional Director for Region 22, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since August 31, 2005.
(j) 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. , June 8, 2007
____________________
Steven Davis
Administrative Law Judge

12 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)-26-07
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 or refuse to bargain in good faith over the terms and conditions of a
successor collective-bargaining agreement with SEIU 1199 New Jersey Health Care Union as
the exclusive bargaining representative of the employees in the following unit:
All full-time and regular part-time licensed practical nurses, nurses
aides, recreational aides, beauticians, housekeeping aides,
laundry employees and dietary employees employed by the
Employer at its Keansburg, New Jersey facility, excluding all office
clerical employees, registered nurses, professional employees,
guards and supervisors as defined in the Act.
WE WILL NOT implement our last offer to the Union or parts of our last offer before we and the
Union have reached a lawful impasse during negotiations.
WE WILL NOT make unilateral changes in your terms and conditions of employment without
first bargaining with the Union to impasse.
WE WILL NOT fail or refuse to supply information that is relevant and necessary to the Union’s
performance of its duties as your exclusive collective-bargaining representative.
WE WILL NOT fail to meet with the Union to engage in good faith bargaining for the purpose of
negotiating a successor collective-bargaining agreement.
WE WILL NOT announce to you that accommodated schedules would be eliminated.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
JD(NY)-26-07
WE WILL on request, bargain with the Union as the exclusive representative of the employees
in the following appropriate unit concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed agreement:
All full-time and regular part-time licensed practical nurses, nurses
aides, recreational aides, beauticians, housekeeping aides,
laundry employees and dietary employees employed by the
Employer at its Keansburg, New Jersey facility, excluding all office
clerical employees, registered nurses, professional employees,
guards and supervisors as defined in the Act.
WE WILL on request, cancel and rescind all terms and conditions of employment which we
unlawfully implemented or unlawfully eliminated on and after April 1, 2005, but nothing in this
Order shall be construed as requiring us to cancel any unilateral changes that benefited you
without a request from the Union.
WE WILL at the Union’s request, restore to unit employees the terms and conditions of
employment that were applicable prior to April 1, 2005, and continue them in effect until the
parties either reach an agreement or a good-faith impasse in bargaining, and make you whole
for any losses suffered by reason of the unlawful unilateral changes in terms and conditions of
employment, on and after April 1, 2005, plus interest.
WE WILL at the Union’s request, restore the accommodated schedule given to Sharon McLeod
pursuant to which she worked the 7:00 a.m. to 3:00 p.m. shift on Wednesdays and WE WILL
make Sharon McLeod whole for any losses suffered by reason of the elimination of her
accommodated schedule, plus interest.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful elimination of Sharon McLeod’s accommodated schedule, and within 3
days thereafter notify her in writing that this has been done and that such action will not be used
against her in any way.
WE WILL furnish to the Union in a timely manner the information requested in the Union’s
letters dated August 31, September 2, November 23, 2005, July 10, 2006 and January 10,
2007.
JD(NY)-26-07
WE WILL 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 payments due under the terms of this
Order.
LAUREL BAY HEALTH & REHABILITATION
CENTER
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.