Pavillion at Forrestal Nursing & Rehabilitation

National Labor Relations Board - Board Decisions

Jan 31, 2006

346 N.L.R.B. 458 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 46
458
Pavilion at Forrestal Nursing and Rehabilitation and
SEIU 1199 New Jersey Health Care Union.1
Case 22–CA–26628
January 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 21, 2005, Administrative Law Judge
Eleanor MacDonald issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief to the Re-
spondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions except as modified below, and to
adopt the recommended Order as modified.
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by refusing to bargain in good
faith with SEIU 1199 New Jersey Health Care Union
(the Union) when it canceled eight consecutive bargain-
ing sessions between the first meeting in March 2004 and
the second meeting in November 2004, and when it
failed to provide presumptively relevant information to
the Union pursuant to its request. The judge also found
that, when the parties did meet, the Respondent contin-
ued to act in bad faith by maintaining an intransigent
position regarding the wage reopener negotiations.
We find, in agreement with the judge, that the Respon-
dent refused to bargain in good faith by delaying bar-
gaining and then denying the Union information to which
it was entitled.3 However, we do not pass on whether

1 We have amended the caption to reflect the disaffiliation of the
Service Employees International Union from the AFL–CIO effective
July 25, 2005.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 In affirming the judge’s finding that the Respondent refused to bar-
gain in good faith by delaying bargaining, Chairman Battista notes that
the Respondent gave no reason for canceling bargaining on seven of the
eight occasions when it canceled scheduled bargaining sessions.
there was intransigent conduct establishing a separate
violation of Section 8(a)(5) and (1). Although this ap-
proach results in the deletion of paragraph 1(b) of the
judge’s recommended Order, the Order retains two other
provisions regarding good-faith bargaining as well as a
proscription of “like or related” conduct. We believe that
these provisions, together with the affirmative parts of
the Order, are an appropriate remedy for the conduct
involved herein.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Pavilion
at Forrestal Nursing and Rehabilitation, Princeton, New
Jersey, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified below.
1. Delete paragraph 1(b) and reletter the subsequent
paragraphs.
2. Substitute the attached notice for that of the admin-
istrative law judge.
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 bene-
fit 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 engaging
in delaying tactics and by refusing to furnish relevant
necessary information to the Union.
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, on request of the Union, meet at reasonable
times and bargain in good faith concerning the wage re-
opener.
PAVILION AT FORRESTAL NURSING & REHABILITATION 459
WE WILL furnish to the Union the information it re-
quested in its December 16, 2004 letter concerning pay-
roll, overtime hours and compensation, costs and em-
ployee participation in benefit plans and information
about temporary employees performing bargaining unit
work.
PAVILION AT FORRESTAL NURSING AND RE-
HABILITATION
Robert Gonzalez, Esq., for the General Counsel.
David F. Jasinski, Esq. and Karen Williams, Esq. (Jasinski and
Williams P.C.), of Newark, New Jersey, for the Respon-
dent.
Mr. Norman DeGeneste, of Iselin, New Jersey, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in Newark, New Jersey, on March 22, 2005. The
complaint alleges that Respondent, in violation of Section
8(a)(5) of the Act, refused to bargain with the Union concern-
ing a wage reopener provision of the collective-bargaining
agreement and refused to furnish information to the Union.
Respondent denies that it has engaged in any violations of the
Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent in May, 2005, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New Jersey corporation, with an office
and place of business in Princeton, New Jersey, operates a nurs-
ing home providing inpatient medical care. The Respondent
annually derives gross revenues in excess of $100,000 and it
purchases and receives in Princeton, New Jersey, goods and
materials valued in excess of $5000 directly from points outside
the State of New Jersey. The parties agree, and I find, that
Respondent is engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and is a health care institu-
tion within the meaning of Section 2(14) of the Act and that
SEIU 1199, New Jersey Health Care Union, AFL–CIO, is a
labor organization with the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
On March 20, 2001, the Union was certified as the exclusive
collective-bargaining representative of the following unit of
Respondent’s employees:
All full-time and part-time certified nurses assistants, house-
keeping employees, dietary employees, laundry employees,
staff licensed practical nurses, unit clerks, unit secretaries, ac-
tivities/recreations employees, maintenance employees em-
ployed by Respondent at its Princeton, NJ facility, but exclud-
ing registered nurses, office clerical employees, supervisors,
watchmen and guards.
The Respondent and the Union are parties to a collective-
bargaining agreement with a term from December 5, 2001, to
April 3, 2005, which provides in schedule A:1
WAGE INCREASES
A. All employees will receive the increases below on
the dates listed or the minimum, whichever is greater.
B. All employees shall receive wage increases as fol-
lows:
Effective—upon ratification: Nursing—2% all other
classifications—$.40 per hour
Effective—4/1/02 contract reopener
Effective—4/1/03 All employees—3.5%
Effective—4/1/04 contract reopener—the parties agree
to meet at least 30 days prior to April 1, 2004 to negotiate
wages and benefits for the last year of this Agreement.
B. The Negotiations
Stacy Harris was the union area director with responsibility
for negotiating with the Respondent. She resigned her position
on April 15, 2004. Before this date, Harris made several phone
calls to David Jasinski, Esq., to inquire whether he would be
representing the Respondent for the contract reopener negotia-
tions.2 Jasinski said that the facility was being operated by a
new purchaser and he was not sure if he would be retained.
Eventually, Harris and Jasinski scheduled negotiations for the
wage reopener on March 15, 2004.
Harris testified that on March 15, 2004, she met with Jasin-
ski and another company representative. Harris was accompa-
nied by a union delegate and some unit employees.3 Harris
gave Jasinski the union demands which she had written by
hand. The document provided as follows:
1. Effective 4-1-2004 the ER will implement a 4%
wage increase across the Board & added to the minimum
rates.
2. Effective 4-1-2004 the ER will contribute ½ % of
gross pay to the SEIU 1999 Training & Educ. Fund.
3. Effective 4/1-2004 the ER will contribute ¼ % of
gross pay to the NJ Alliance Quality Care in Long Term
Care.
4. The ER agrees to participate in monthly labor man-
agement & health & Safety Committees.
All other terms & conditions to remain the same.
Harris told Jasinski that the requested increase in health and
welfare fund contributions would help Respondent recruit LPN
employees. She said that the union demand for contributions to
the SEIU training and education fund would also help in re-

1 The entire collective-bargaining agreement was not entered into
evidence herein.
2 Harris had negotiated six or seven different collective-bargaining
agreements with Jasinski.
3 Harris had brought her young son with her: it was his birthday and
she was taking him out to celebrate. One of the union representatives
cared for the boy while Harris met with Jasinski.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD460
cruiting because it would assist employees to pay for the ex-
pensive clinical training needed by an LPN.
Harris testified that Jasinski replied that he would have to
consult his client. He said he would present his counterpro-
posal at the next meeting. Jasinski said nothing about the Re-
spondent’s ability to pay a wage increase. Harris asked him for
some future bargaining dates, but Jasinski said he did not have
a calendar with him and he asked Harris to call his office.
Harris recalled that the meeting lasted only about 15 min-
utes.
Jasinski testified that he has been labor counsel to Respon-
dent since 1998 or 1999. Jasinski stated that when he spoke to
Harris before the March 15, 2004 meeting she was concerned
about the health and welfare contributions then being made by
Respondent. Harris wanted contributions based on a percent-
age of gross pay rather than the flat monthly rate that was
specified in the contract. Jasinski told Harris that because the
contract was expiring in a year he did not think Respondent
would provide any increases in view of the fact that it would
face new negotiations 1-year later.
Jasinski stated that when he received Harris’ proposals on
March 15, 2004, he told her that he was not inclined to make
changes in the collective-bargaining contract because it would
be expiring in 1 year. Jasinski also told Harris that he would
consider the union proposal and come back with a counterpro-
posal. Jasinski’s notes of this meeting were admitted into evi-
dence.4 They show that Harris maintained that Respondent’s
wages were low and that she wanted to bring them in line with
other facilities. Jasinski’s notes show that he replied that he
was not concerned with other facilities. He said the rate of unit
employee turnover at Respondent had settled down and that
wages and benefits were competitive with other employers.
Jasinski said the union proposal was for a significant wage
increase. He told Harris that the Employer proposed to main-
tain the status quo, but was not pleading poverty. The Respon-
dent saw no reason for an increase at this time and it had the
intention to negotiate a new contract in 2005. Jasinski said that
Government reimbursement rates had not been increased and
the Union had not shown why a change in the contract was
warranted.
Jasinski testified that sometime after Harris left the Union he
spoke on the telephone to a union agent named Allkoff. Al-
though the purpose of the conversation was to discuss an unre-
lated matter, Jasinski mentioned that Repondent was not pre-
pared to make changes to the contract pursuant to the reopener.
Allkoff said he would send a 10-day strike notice and he was
surprised when Jasinski informed him that the no-strike clause
in the contract applied to the contract reopener.
Norman DeGeneste, an organizer for the Union, was respon-
sible for the negotiations with Respondent after Harris’ resigna-
tion. DeGeneste encountered Jasinski in negotiations for an-
other facility and asked the latter for a date to negotiate on be-
half of Respondent’s unit employees. Jasinski gave DeGeneste

4 Jasinski stated that he often writes notes of meetings after the end
of the meeting to summarize what was said. He did not specify
whether the notes in evidence were written in this manner nor when
they were actually written.
a time and date which DeGeneste entered in has calendar: May
27 at 10 a.m. On May 27, 2004, Jasinski telephoned De
Geneste and cancelled the meeting. The two then agreed to
meet on June 30. DeGeneste came to the facility on June 30.
He did not see Jasinski, but he spoke to him on the telephone
and asked for another date for bargaining. Jasinski gave him
the date of July 29. While at the facility on June 30, DeGeneste
met with administrator, Virginia Cranston, and the head of
human resources, Yvette Beslow. DeGeneste testified that
Beslow said she did not see a problem in giving the employees
an increase and that they deserved it. She said she would speak
to the attorney and get back to DeGeneste. Apparently she
never contacted DeGeneste about the raise. DeGeneste ac-
knowledged that his affidavit given to a Board agent on No-
vember 3, 2004, did not mention Beslow’s remark that there
was no problem about raises.
DeGeneste testified that Jasinski cancelled the July 29, 2004
meeting and the two men agreed to meet on August 26. Jasin-
ski canceled the August 26 meeting and agreed to meet on Sep-
tember 15. Then Jasinski telephoned and canceled the Septem-
ber 15 meeting due to a religious holiday, but he agreed to meet
Jasinski on September 29. Jasinski cancelled the September 29
meeting and agreed to meet on October 28. Jasinski cancelled
the October 28 meeting and agreed to meet on November 1.
Jasinski cancelled the November 1 meeting and agreed to meet
on November 29.
DeGeneste testified that the parties met for negotiations on
November 29, 2004. DeGeneste was accompanied by unit
employee Franckline Bernard. Jasinski and John Pilek, the
executive director of Respondent, represented the Employer.
DeGeneste told Jasinski and Pilek that he was ready to negoti-
ate the wage and benefit proposal given to the Respondent at
the first session and that he wanted the employer’s response.
DeGeneste testified that Jasinski replied that “they could not
afford to give any increases this year” because the nursing
home had just closed 10 beds and the census was low. Pilek
said that out of 170 beds only 146 were filled with patients.
Then the parties caucused for 15 or 20 minutes. Jasinski came
back to the meeting and told DeGeneste that he had just learned
that Respondent owed money to the benefit funds. At that
point DeGeneste took a document out of his briefcase and put it
on the table for Jasinski to look at. This was a document dated
October 28, 2004, and entitled “Pay-out Agreement and Con-
fession of Judgment between 1199/SEIU Greater New York
Funds and Pavilion at Forrestal.” Jasinski said if the Union
gave Respondent relief on the money owed to the funds then he
might be able to give a wage increase. DeGeneste said he
could not make a decision on money owed to the funds. De-
Geneste asked Jasinski whether he would consider a wage in-
crease if the Union came back with a different proposal. Jasin-
ski said that he would not consider giving a raise. He remarked
that the Union had likely readied a proposal for the contract
expiration in April 2005, and he said at that time the Employer
would be ready to negotiate wages and benefits.
DeGeneste’s notes of this meeting were introduced into evi-
dence. They quote Jasinski as saying, “no increases” and they
show the figures of 170 for total beds and 146 for census to
date. The notes also show that management gave a figure of
PAVILION AT FORRESTAL NURSING & REHABILITATION 461
$250,000 for the delinquency to the funds and cited a $50,000-
per-month payment. The notes say, “If Union give a relief of
the $250,000, the NH will be able to give the workers an in-
crease this year.” DeGeneste’s notes do not say that the Em-
ployer stated it could not afford to give increases. DeGeneste’s
affidavit states, “Jasinski responded that the employer could not
afford to give any increases this year but the contract is expir-
ing in April of 05 and the Union probably already created a
proposal for bargaining and Pavilion would be prepared to dis-
cuss increases in wages and benefits for next year.”
Franckline Bernard testified that Jasinski said the Employer
could not afford to give a raise because it was behind on pay-
ments and there was a low census. When DeGeneste asked
whether a lower union demand would induce Respondent to
grant a raise, Jasinski said no, they just could not afford to give
people a raise.
Jasinski testified while engaged in scheduling bargaining
dates with DeGeneste he informed him that the Respondent was
not in a position to provide any changes to the existing contract.
At the November 29, 2004 bargaining session Jasinski told
DeGeneste that the contract would expire in a few months and
that would be the time to bring up changes in wages and bene-
fits. Jasinski said that the Employer saw no reason to make
changes at an earlier time because its pay scale was competitive
and turnover had ceased. Jasinski did not recall that Pilek dis-
cussed the census nor the confession of judgment in favor of
the benefit funds, but he did recall that Respondent owed
money to the funds. Jasinski recalled saying that Respondent
would pay the sums due to the funds. Jasinski testified that
DeGeneste asked whether the employer would consider a lesser
wage increase but Jasinski told him that he would not change
the status quo. Jasinski stated that he did not discuss the Re-
spondent’s financial ability; the issue for him was competitive-
ness of wages and the ability to retain employees.
Jasinski’s notes of the meeting show that he praised the unit
employees’ efforts and told the Union that “things have im-
proved.” But, Jasinski said, “[W]e do not think that this is the
time to make changes. The contract is not far away. We will
be back here in a short time to address a new contract.” The
notes say, “We continue to believe the status quo is the best
course. . . . Not pleading poverty—mere difference of opinion.”
John Pilek did not recall much about this meeting. The only
facts he could testify to with assurance were that Jasinski said
the Employer was going to maintain the status quo, that Re-
spondent was competitive in recruiting employees and that they
would be back at the table again in a few months because the
contract expired in April 2005.
DeGeneste testified that he never canceled any meetings that
were scheduled with Jasinski. His calendar shows that he had
written down three tentative dates to meet in August but De-
Geneste testified that Jasinski never confirmed these with him.
DeGeneste recalled that on August 11, Jasinski telephoned him
while DeGeneste was far from the facility dealing with a termi-
nation in Atlantic City. DeGeneste did not have a confirmed
meeting with Jasinski that day but Jasinski was at the facility
and he asked whether DeGeneste could come to meet with him.
DeGeneste was not able to drive to the facility due to his other
duties. DeGeneste was sure that this was not a “mix up”; he
was certain that the August 11 date was not a firm date for ne-
gotiations.
On December 16 and 23, 2004, DeGeneste sent information
requests to Respondent. These letters were prepared for his
signature by his supervisor. Respondent has not provided any
of the information requested by the Union.
The information requested on December 16 included:
1) Total gross annual payroll for the bargaining unit.
2) Number of overtime hours worked by bargaining
unit employees and the compensation paid for this over-
time.
3) Number of hours worked by any per diem, agency,
or temporary employees in bargaining unit positions and
the amount paid to said agencies and employees.
4) Cost to the Employer for each benefit plan utilized
by bargaining unit employees, including health, dental,
prescription, vision, disability, life insurance and pension.
Please state the number of Bargaining employees who is
[sic] participating in every category of each benefit plan.
5) Description and cost of any capital improvements to
the facility.
6) Any acquisition or sale of facilities by the Em-
ployer.
7) Copy of cost reports submitted, including any sup-
plemental submissions, for reimbursement for Medicaid
and from any other public entity or funding source.
The information requested on December 23 included:
1. Financial statements prepared by your accountants
or auditors for 2002, 2003 and 2004.
2. All federal and state tax returns, including and quar-
terly returns filed for the years 2002 through 2004. [Sic.]
3. Documents showing unpaid invoices for accounts
payable at the end of 2003 and to date for 2004.
4. Documents showing the year end cash balance for
2003 and to date for 2004.
5. Documents showing accounts receivables for year
end 2003 and to date for 2004.
I note that no testimony was presented to support the Un-
ion’s requests for information.
C. Discussion and Conclusions
The General Counsel contends that Respondent has bar-
gained in bad faith by engaging in delaying tactics, making
unreasonable bargaining demands, maintaining an intransigent
position concerning the wage reopener without making an ef-
fort to compose its differences with the Union and failing to
provide relevant and necessary information.
The General Counsel points out that Respondent delayed
bargaining by canceling all the consecutive bargaining sessions
with the Union between the first meeting in March and the
second meeting in November 2004. In his testimony, Jasinski
did not specifically deny DeGeneste’s testimony that he can-
celled bargaining sessions or did not appear for scheduled ne-
gotiations on May 27, June 30, July 29, August 26, September
15 and 29, October 28, and November 1, a total of eight occa-
sions. This was an egregious course of dilatory tactics which
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD462
violated the Respondent’s duty to meet and bargain with the
Union. Calex Corp., 322 NLRB 977 (1997).
The General Counsel cites Respondent’s unchanging state-
ment that it would not grant a wage increase pursuant to the
reopener because the entire contract was up for negotiations in
2005 as evidence that the Employer maintained an intransigent
position while refusing to consider the Union’s counterdemand
of a smaller wage increase. Indeed, Jasinski’s own testimony
establishes on its face that before March 15, 2004, he informed
Harris that the Respondent would not agree to any wage in-
crease pursuant to the April 2004 reopener because there would
be new negotiations 1-year later. Jasinski adhered to this line
when he met with Harris on March 15, he repeated this resolu-
tion to Allkoff when he told the latter that Respondent would
not make changes to the contract pursuant to the reopener and
Jasinski repeated this position to DeGeneste while scheduling
dates with DeGeneste. Jasinski continued to inform the Union
that it did not intend to bargain a wage increase pursuant to the
reopener when negotiations resumed on November 29: Jasinski
told DeGeneste that the time to increase wages would be next
year and he insisted that the Respondent would maintain the
status quo on wages because they would be back at the table
again soon. When DeGeneste offered to reduce the Union’s
demand for a 4-percent wage increase, Jasinski reiterated that
Respondent would not change the status quo. Thus, Jasinski’s
testimony shows that he entered the contract reopener negotia-
tions with a firm resolve not to increase wages or benefits and
he adhered to this position throughout the year 2004 by inform-
ing various union agents that the employer would not grant any
increases. Jasinski testified that he maintained this position not
because of any inability to pay a wage increase: he repeatedly
testified that the employer would not grant a wage increase and
would not increase benefits because it expected to be negotiat-
ing a new contract in 2005. Respondent, thus, entered into the
discussions with a firm resolve not to negotiate in 2004, be-
cause it would be obliged to negotiate again in 2005.
It is true that Respondent did discuss the Union’s contentions
that increases in wages and benefits would help in recruitment.
Respondent told the Union that employee retention had ceased
to be a problem at the facility and that it did not have to give an
increase to remain competitive. Respondent also cited a low
patient census as a reason for refusing to give a wage increase.
However, these were “add-ons” to Respondent’s consistently
repeated insistence throughout 2004 that it was not going to
give a wage or benefit increase because the parties would be
back in negotiations early in 2005.
DeGeneste maintained that Jasinski offered to give a raise in
return for relief from the funds. Jasinski does not recall men-
tioning this. Based on DeGeneste’s testimony and his notes, I
find that Jasinski did mention the debt to the funds and that he
asked for relief. I agree with the General Counsel’s argument
that Jasinski knew that DeGeneste had no power to bind the
funds in any agreement. Although no evidence was introduced
as to the precise governance of the benefit funds in question, it
is safe to say that the trustees are not controlled solely by the
Union herein. Indeed, the employees covered by the funds
work for many different employers in the greater New York
area. Thus, whatever may have been said about the funds, it is
clear that Jasinski did not seriously propose in bargaining that
he would grant a wage increase in return for debt relief. Jasin-
ski would have known that any forgiveness by the funds would
involve a complicated set of negotiations with all the trustees
who would have no ostensible reason to agree based on the
facts of the instant record. Jasinski’s mention of Respondent’s
obligation to the funds did not in any way affect his admitted
and unyielding position that no wage or benefit increase would
be agreed to before the 2005 contract negotiations. In fact,
DeGeneste’s testimony shows that right after Jasinski made his
purported proposal to trade relief from the funds for a wage
increase DeGeneste asked whether Jasinski would consider a
Union demand for a lesser wage increase. Jasinski said he
would not consider giving a raise.
The witnesses disagree whether Jasinski cited inability to
pay as a reason for failing to grant increases in wages and bene-
fits pursuant to the 2004 reopener. DeGeneste and Bernard
both testified that Jasinski said Respondent could not afford a
raise due to low patient census and debt to the funds: Jasinski
denied this. DeGeneste’s notes, which were taken during the
meeting, do not support his testimony or his affidavit. The
notes say “no increases,” they show the low patient census and
the fund delinquency and they mention debt relief, but they do
not say that Respondent actually stated that it could not afford a
pay increase. If Jasinski had actually told DeGeneste that Re-
spondent had no money to increase wages or benefits, De-
Geneste could not have failed to write down the words he used.
The General Counsel bears the burden of proof on this issue. In
the circumstances I do not believe that I can find that Respon-
dent cited inability to pay as a reason to deny increases to the
employees. I note that there is a significant difference between
an employer which discusses hard times generally and one
which maintains that it is incapable of finding the money to
support any increases. The Board has recently defined the term
“inability to pay” in AMF Trucking & Warehousing, Inc., 342
NLRB 1125 (2004), as follows:
[T]he phrase means more than the assertion that it would be
difficult to pay, or that it would cause economic problems or
distress to pay. “Inability to pay” means that the company
presently has insufficient assets to pay or that it would have
insufficient assets to pay during the life of the contract that is
being negotiated. Thus, inability to pay is inextricably linked
to nonsurvival in business.
Based on my finding that the Respondent did not claim “in-
ability to pay” as that phrase has been defined by the Board, I
find that Respondent was under no duty to furnish the financial
information sought in the Union’s letter of December 23,
2004.5
However, I reach a different conclusion concerning portions
of the Union’s December 16, 2004 letter requesting certain
information. It is well established that an employer has a duty
to furnish the collective-bargaining representative with infor-
mation that is necessary and relevant to the Union’s representa-
tion of employees. NLRB v. Acme Industrial Co., 385 U.S. 432

5 The duty to furnish the information in an appropriate circumstance
was established in NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).
PAVILION AT FORRESTAL NURSING & REHABILITATION 463
(1967). To the extent the December 16 letter refers to informa-
tion concerning the unit employees’ terms and conditions of
employment it is deemed presumptively relevant to the Union’s
duty to represent the employees. Atlanta Hilton & Tower, 271
NLRB 1600 (1984). If information is requested concerning a
subject that is not presumptively relevant, the Union must offer
evidence to demonstrate its need for the information.
Information about wages and hours is deemed presumptively
relevant. Thus, it was unlawful for Respondent to fail to pro-
vide the Union with information regarding total gross annual
payroll for the bargaining unit, number of overtime hours
worked by bargaining unit employees and compensation for the
overtime, cost to the employer for the unit benefit plans and
information about the number of employees participating in
each category of each plan. New Surfside Nursing Home, 330
NLRB 1146, 1149 (2000). This is the information sought in
items 1, 2, and 4 of the December 16 letter. As to the informa-
tion requested in item 3 concerning per diem, agency or tempo-
rary employees, that information relates to unit work performed
by nonemployees. The Board has held that information regard-
ing temporary workers performing bargaining unit work is
presumptively relevant. United Graphics, 281 NLRB 463, 465
(1986).
The information requested in items 5 and 6 of the December
16 letter relates to capital improvements, acquisitions and sales
made by Respondent. The General Counsel apparently does
not contend that this information is presumptively relevant. No
testimony was offered to show why the Union required this
information and I do not find that Respondent had any duty to
furnish it. Finally, the Union’s need for the Medicaid and other
funding information requested in item 7 of the December 16
letter was not discussed specifically in any testimony presented
by the General Counsel. Medicaid and similar information has
not been held to be presumptively relevant; rather, the Union
must establish its need for the information. In the absence of
testimony establishing the Union’s need for the Medicaid in-
formation requested in item 7, I do not find that the Respondent
unlawfully failed to comply with that request. Troy Hills Nurs-
ing Home, 326 NLRB 1465, 1466 (1998).
CONCLUSIONS OF LAW
1. SEIU 1199, New Jersey Health Care Union, AFL–CIO is
the exclusive collective-bargaining representative of the em-
ployees of the Respondent pursuant to Section 9(a) of the Act,
in the following unit:
All full-time and part-time certified nurses assistants, house-
keeping employees, dietary employees, laundry employees,
staff licensed practical nurses, unit clerks, unit secretaries, ac-
tivities/recreations employees, maintenance employees em-
ployed by Respondent at its Princeton, NJ facility, but exclud-
ing registered nurses, office clerical employees, supervisors,
watchmen and guards.
2. By engaging in delaying tactics, maintaining an intransi-
gent position with regard to the contract reopener and refusing
to furnish relevant and necessary information, Respondent has
refused to bargain in good faith with the Union in violation of
Section 8(a)(5) and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, Pavilion at Forrestal Nursing and Rehabili-
tation, Princeton, 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, AFL–CIO by engaging in delaying
tactics to avoid meeting with the Union.
(b) Refusing to bargain in good faith with the Union by
maintaining an intransigent position with regard to the contract
reopener.
(c) Refusing to bargain in good faith with the Union by de-
nying the Union the information requested in items 1, 2, 3, and
4 of its letter of December 16, 2004.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, meet at reasonable times and bargain with
the Union as the exclusive representative of the employees in
the appropriate unit set forth above concerning wages and bene-
fits and, if an understanding is reached, embody the understand-
ing in a signed agreement.
(b) Furnish to the Union, in writing, the information re-
quested in items 1, 2, 3, and 4 of its letter of December 16,
2004.
(c) Within 14 days after service by the Region, post at its fa-
cility in Princeton, New Jersey, copies of the attached notice
marked “Appendix.”7 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 con-
spicuous 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

6 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 pur-
poses.
7 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD464
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since March 15,
2004.
(d) 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.