Metropolitan Home Health Care

National Labor Relations Board - Administrative Judge Opinions

Jun 26, 2008

22-CA-028089 (N.L.R.B. Jun. 26, 2008)

JD(NY)-23-08
Elmwood Park, NJ
Weehawken, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
PREMIER HOME HEALTH CARE SERVICES, INC.
d/b/a METROPOLITAN HOME HEALTH CARE
and Case 22-CA-28089
SEIU 1199 NEW JERSEY HEALTH CARE UNION
Bert Dice-Goldberg, Esq., for the General Counsel
James P. Granello, Esq., of White Plains, New York,
for the Respondent
DECISION
Statement of the Case
ELEANOR MACDONALD, Administrative Law Judge: This case was heard in
Newark, New Jersey, on April 23, 2008. The Complaint alleges that Respondent, in violation of
Section 8(a)(1) and (5) of the Act, refused to provide information to the Union concerning
Respondent’s proposal for a “margin split” during negotiations for an initial collective-bargaining
agreement. Respondent denies that it has violated the Act.
On the entire record, including my observation of the demeanor of the witness, and after
considering the briefs filed by the parties on May 28, 2008, I make the following
Findings of Fact
I. Jurisdiction
Respondent, a corporation with offices and places of business in Elmwood Park and
Weehawken, New Jersey, is engaged in the provision of home health care services. Annually
Respondent purchases and receives at its New Jersey facilities good valued in excess of
$50,000 directly from points outside the State of New Jersey. Respondent admits and I find that
it is an employer engaged in commerce with the meaning of Section 2(2), (6) and (7) of the Act,
and that SEIU 1199 New Jersey Health Care Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Negotiations
The Union was certified on April 6, 2005 as the exclusive collective-bargaining
representative of the employees in the following appropriate unit:
All full-time and regular part-time certified home health aides employed by the Employer
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from its Elizabeth, Elmwood Park and Weehawken, New Jersey facilities, but excluding
all office clerical employees, coordinators, employment coordinators, licensed practical
nurses, managerial employees, registered nurses and other professional employees,
guards and supervisors as defined in the Act.1
Negotiations between Respondent and the Union commenced. The Union was
represented by Larry Alcoff, campaign director of SEIU, Milly Silva the 1199 New Jersey
president and other Union and employee participants. The employer was represented by Greg
Turchan, chief operating officer, Jeannie O’Sullivan, vice president of administration and human
resources and James P. Granello, Esq., General Counsel of Premier Home Health Care
Services, Inc.2
Larry Alcoff was the only witness to testify herein. Alcoff explained that the State of New
Jersey has a practice of providing a “pass-through” increase to be given to home health care
employees for the benefit of the actual care providers. At the negotiations conducted on June
26, 2007 the Union and the company discussed the 65 cent per hour pass-through that had
recently been enacted by the New Jersey legislature. This sum had to be applied to the wages
and benefits of the home health care employees. The 65 cent pass-through was based on only
a portion of Medicaid hours; these are called Medicaid Z Code. The employer proposed that the
pass-through be spread across all the hours worked by the employees. This would result in a
10 cent increase in Weehawken and an 18 cent increase in Elmwood Park or the spread could
result in a 14 cent increase at both locations.
The company also proposed a formula for future increases to wages and benefits based
on its revenue. Alcoff testified that the company has four sources of income: contracts with
agencies such as the Visiting Nurse Association; reimbursement from two different types of
Medicaid, that is, Medicaid Z Code and Medicaid Other; and cash payments from patients or
from patients’ individual private insurance coverage. By combining these sources of revenue
over a period of time the company arrived at an Average Weighted Reimbursement Rate
(AWRR).
On June 26 the Respondent proposed that on July 1 of each year it would compare the
Average Weighted Reimbursement Rate for the last six months and it would calculate how this
sum had increased from the prior year. The increase in the AWRR would be allocated 67% to
wages, benefits, payroll taxes and other direct workers costs and 33% to general and
administrative costs and profit. The Respondent called this proposal a margin split proposal. In
essence, it would split the margin of increase in AWRR 67% to employees and 33% to the
employer.
Alcoff testified that the Union did not agree to the employer’s June 26 proposal. Alcoff
did not say that that the union was opposed to the margin split but concept but he indicated that
the Union needed more information. Turchan said he understood and that he would get back to
the Union.
On July 25, the Union representatives met with Respondent. Granello and O’Sullivan
were present on behalf of the employer. Alcoff testified that the employer presented a new
proposal that differed from the one given to the Union one month before. The margin split

1 The Elizabeth location has since been closed.
2 Metropolitan Home Health Care of New Jersey is a subsidiary of Premier Home Health
Care Services, Inc.
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based on an increase of the Average Weighted Reimbursement Rate was now defined at 65%
for the employees and 35% for the company on both July 1, 2010 and July 1, 2011. The
company’s proposal also included the following paragraph:
If a pass-through is provided that only affects aide wages and benefits in any contract
year the agreed upon wage or benefit adjustment for that year is frozen until a gross
margin and economic impact review is conducted by the Company. The Company will
have 90 days to conduct such review from the FINAL legislative and/or subsequent
regulatory implementation/process completion date. If the Gross Margin is impacted and
is below the current GM% for that year as a result of such legislation the Company has
the right to delay, adjust, modify, and /or cancel any such wage or benefit adjustments.
The Union asked Respondent some questions about its proposal at the July 25
bargaining session.3 The Union asked when the company had last negotiated increases with
the private insurers, with the Visiting Nurses or with various county agencies. The Union asked
how those rates had changed over the last three years. The reason for the request was that
Respondent’s wage increase proposal was based on an average weighted rate from all the
company’s sources of income; the Union wanted to determine what wage increases such a
formula was likely to provide. Alcoff also asked what specific costs Respondent would include
in the margin split formula as wages, benefits and payroll taxes to see whether those categories
were properly attributable to labor costs. Finally, Alcoff asked how the items to be included in
the general administrative costs and profits had grown or decreased over the last three years so
that the Union could determine whether Respondent was maintaining an existing split or was
bargaining for a windfall. Alcoff explained to the employer why the Union needed the
information it was requesting.
The day after the bargaining session the Union sent Respondent a written information
request dated July 26, 2007. The relevant portions of the Union’s letter were as follows:
Please provide the rates from all sources (Medicaid, private pay, private insurance, and
contracts) for each office in 2005, 2005, 2006, 2007, and 2008, if known.
Please provide the “margin split” in 2004, 2004, 2006 and 2007. Please show total
revenue in each year and a breakdown by component the expenses in each year that
fall under the categories of “General and Administrative costs and profit” and
wage/benefits/payroll taxes, include all supporting documents utilized to make the
calculations.
Granello also addressed a letter dated July 26 to Alcoff. Granello asked that the Union
make its information request in writing and provide an explanation for seeking certain
information.
On August 28 Granello wrote to Alcoff providing certain information not relevant to the
instant case. Concerning the matters at issue herein, Granello stated:
As to the request to be provided the rates from all sources (Medicaid, private pay,
private insurance and contracts) for each office for the years 2004 to 2008, if known, the

3 Other subjects of bargaining were discussed by the parties and the Union asked for
information about those matters, however those items are not relevant to the instant case and
will not be dealt with herein.
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company objects to providing its confidential and proprietary information to the Union
other than providing its Medicaid rates for the years in question which are matters of
public record. Also, we are providing you with the Average Weighted Wage Rate for the
period July 2005 to July 2007. The company has a legitimate interest in maintaining the
confidentiality of its private business information which if publicized would arguably harm
the competitive position. Lafayette Park, 326 NLRB 824 (1998)
As to providing the Union with the company’s “margin split” for the years 2004 to 2007
showing the total revenue and a breakdown by component expenses in each year the
(sic) fall under the categories of “General and Administrative costs and profits” and
wage/benefit/payroll taxes, the company objects to providing the Union with its
confidential and proprietary information at this time, particularly in light of the Union’s
rejection of the company’s margin proposal because the company will not agree to
include workers from West Orange and Scotch Plains as part of the bargaining unit. If
the Union agrees to the company’s margin proposal, then the company is willing share
information that can be used to verify the distribution of revenue.4
On September 18 Alcoff wrote to Granello. The relevant portions of his letter follow:
Please provide the rates for all sources (Medicaid, private pay, private insurance, and
contracts) for each office in 2004, 2005, 2006, 2007 and 2008, if known. You refused to
provide this information claiming confidentiality and potential harm to the company’s
competitive position. The Employer’s last proposal was based on a sharing of revenue.
In order for the Union to fairly evaluate the Employer proposal, this information is
essential. The Union is prepared to sign a narrowly tailored confidentiality agreement as
a condition to receive such information.
Please provide the “margin split” in 2004, 2005, 2006, and 2007. Please show total
revenue in each year and a breakdown by component the expenses in each year that
fall under the categories of “General and Administrative costs and profit” and
wage/benefits/payroll taxes, include all supporting documents utilized to make the
calculations. Again, you refused to provide this information despite it being at the center
of the current Employer proposal. The Union stated that while we made a different
counterproposal, we remained open to the Employer proposal but needed more
information. The Union is prepared to sign a confidentiality agreement in order to
address the Employer’s concerns. (Italics in original)
Alcoff testified that he never received a reply to the Union’s offer to sign a confidentiality
agreement.5
B. Discussion and Conclusions
The General Counsel argues that the information requested by the Union is necessary
and relevant to the Union’s performance of its responsibilities. Respondent argues that the
company’s financial information need not be turned over because the company has not

4 I note that there is no testimony in the record that the Union rejected the margin proposal
and there is no testimony in the record concerning any controversy over the West Orange and
Scotch Plains offices.
5 I note that the record contains correspondence between the Respondent and the Board
Agent assigned to investigate the case on this subject.
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asserted a financial inability to meet the Union’s demands in collective-bargaining negotiations.
Respondent also argues that because it never asserted an inability to pay it had no duty to enter
into a confidentiality agreement with the Union as a condition of producing the information.
Respondent made a wage increase proposal and then a modified proposal to the Union
in collective-bargaining negotiations. The company’s proposal was based on the Average
Weighted Reimbursement Rate. The AWRR amounts to the company’s income from all
sources averaged over a period of time. Thus, Respondent’s wage increase proposal was
based on a comparison of its past and future income from all sources. Respondent proposed to
split future increases in its income from all sources between the employees and the company;
this was the margin split proposal. The gross margin equaled the increase in the company’s
income. Respondent’s first margin split proposal was to allocate 67% of the increase in its
income to wage increases; this was later modified to 65%.
Respondent also modified its margin split proposal to provide that if the legislature
enacted a pass-through for wages that resulted in a lower gross margin than the year before,
that is, less of an increase in the company’s income than had been enjoyed the year before, the
company had the right to delay, adjust, modify and cancel wage increases for employees.
Thus, it is clear that the employer’s proposals of June 26 and July 25 based future
employee wage increases on the total income of the employer and the degree to which that
income exceeded the income of the prior year.
Further, the employer’s proposal was based on a split between administrative and labor
costs. It is evident that the amount of an actual wage increase depended on what other
categories would be included in labor costs. If the cost of unemployment insurance, for
example, was considered a labor cost then that would reduce the amount left over for a wage
increase.
It is well established that an employer has an “obligation to provide information that is
needed by the bargaining representative for the proper performance of its duties.” NLRB v.
Acme Industrial Co., 385 U.S. 432, 435-6 (1967). The Board applies a “discovery-type
standard” when there is a “probability that the desired information was relevant, and that it
would be of use to the union in carrying out its statutory duties and responsibilities.” 385 U.S. at
437.
In order for the Union to evaluate the Respondent’s proposals for wage increases the
Union would require information that enabled it to calculate the likely outcome of the formula
proposed by the company. The Union would require figures showing the amounts of all the
factors that bear upon the calculation of the Average Weighted Reimbursement Rate. These
amounts include income from Medicaid, cash payments from individuals, private insurance and
contracts with agencies. The Union requested information dating back to 2005 so that it could
evaluate the history of the Average Weighted Reimbursement Rate and determine whether it
should agree to this type of formula as a basis for future wage increases. I find that this
information is relevant and necessary to the Union in carrying out its duty to bargain on behalf of
the unit employees.
Similarly, the information concerning the various components of the margin split
percentages proposed by the Respondent is necessary for the Union to calculate the likely
outcome of the wage increase formula proposed by the company. The Union asked for the
margin split starting with 2004 so that it could determine whether this mechanism would be
beneficial to the unit employees based upon a trend over several years. The Union asked for
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the details of the expenses that the company would allocate to labor costs and to administrative
costs so that it could see whether this type of wage increase formula would work to the
advantage of the employees based upon the trend of prior years. This information is relevant
and necessary to the Union in carrying out its duty to bargain on behalf of the unit employees.
I note that the Respondent has not argued that the time periods covered by the Union’s
requests for information are unreasonable or irrelevant.
Respondent urges that the information requested by the Union is confidential and
proprietary. Respondent has not presented any testimony to support this assertion. It merely
argues that it should not be required to provide financial information to the Union. I note that the
Union offered to enter into a confidentiality agreement and offered to discuss such an
agreement with the company. 6
The Board has set forth the framework to be applied when an employer refuses to
provide information on the grounds of confidentiality:
[I]n dealing with union requests for relevant, but assertedly confidential information, the
Board is required to balance a union’s need for the information against any “legitimate
and substantial” confidentiality interests established by the employer. The appropriate
accommodation necessarily depends on the particular circumstances of each case. The
party asserting confidentiality has the burden of proof. Legitimate and substantial
confidentiality and privacy claims will be upheld, but blanket claims of confidentiality will
not. Further, a party refusing to supply information on confidentiality grounds has a duty
to seek an accommodation. Thus, when a union is entitled to information concerning
which an employer can legitimately claim a partial confidentiality interest, the employer
must bargain toward an accommodation between the union’s information needs and the
employer’s justified interests. Pennsylvania Power and Light, 301 NLRB 1104, 1105-6
(1991). Citations omitted.
The Respondent has not provided any evidentiary grounds upon which I could find that
its need to maintain the confidentiality of its financial information outweighs the Union’s
demonstrated need for information to evaluate the company’s wage proposals. Indeed, the
company has not specified which portions of the requested information are confidential.
Instead, it has issued a blanket claim of confidentiality. Under the circumstances, I must find
that Respondent has not shown that any of the requested information is confidential.
Respondent’s failure to bargain with the Union pursuant to the Union’s offer to reach an
accommodation concerning the production of financial information is further evidence of
Respondent’s unlawful refusal to furnish necessary information.
I find that Respondent violated Section 8(a)(1) and (5) of the Act when it failed to turn
over the information requested by the Union. New Surfside Nursing Home, 330 NLRB 1146
(2000).
Conclusions of Law
1. SEIU 1199 New Jersey health Care Union is the exclusive collective-bargaining
representative of the Respondent’s employees in the following appropriate unit:

6 Respondent also argues that it has not claimed inability to pay and thus the requested
information is irrelevant. This argument is without merit and I shall not discuss it further.
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All full-time and regular part-time certified home health aides employed by the Employer
from its Elmwood Park and Weehawken, New Jersey facilities, but excluding all office
clerical employees, coordinators, employment coordinators, licensed practical nurses,
managerial employees, registered nurses and other professional employees, guards and
supervisors as defined in the Act.
2. By refusing to provide necessary and relevant information concerning its Average
Weighted Reimbursement Rate Margin Split wage proposal to the Union, Respondent violated
Section 8(a)(1) and (5) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended7
ORDER
The Respondent, Premier Home Health Care Service, Inc., d/b/a Metropolitan Home
Health Care, Elmwood Park and Weehawken, New Jersey, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with SEIU 1199, New Jersey Health Care Union by
denying the Union the information requested in its letter of September 18, 2007.
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Furnish to the Union, in writing, the information it requested in its letter dated
September 18, 2007.
(b) Within 14 days after service by the Region, post at its facilities in Elmwood Park and
Weehawken, New Jersey, copies of the attached notice marked “Appendix.”8 Copies of the
notice, on forms provided by the Regional Director for Region 22, after being signed by the

7 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.
8 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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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 28, 2007.
(c) 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 26, 2008.
____________________
Eleanor MacDonald
Administrative Law Judge
JD(NY)-23-08
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to
post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to bargain in good faith with SEIU 1199, New Jersey Health Care Union by denying
the Union necessary and relevant information concerning our margin split wage offer for the following
appropriate unit:
All full-time and regular part-time certified home health aides employed by the Employer from its
Elmwood Park and Weehawken, New Jersey facilities, but excluding all office clerical employees,
coordinators, employment coordinators, licensed practical nurses, managerial employees,
registered nurses and other professional employees, guards and supervisors as defined in the
Act.
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.
WE WILL furnish the Union, in writing, the information it requested on September 18, 2007.
Premier Home Health Care Service, Inc., d/b/a
Metropolitan Home Health Care
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
20 Washington Place, 5th Floor
Newark, New Jersey 07102-3110
Hours: 8:30 a.m. to 5 p.m.
973-645-2100.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 973-645-3784.