Laurel Bay Health & Rehabilitation Center

National Labor Relations Board - Board Decisions

Sep 30, 2008

353 N.L.R.B. 232 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 24
232
Laurel Bay Health & Rehabilitation Center and SEIU
1199 New Jersey Health Care Union. Cases 22–
CA–27192, 22–CA–27324, 22–CA–27500, and
22–CA–27779
September 30, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On June 8, 2007, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
brief and has decided to affirm the judge’s rulings, find-
ings as modified below,1 and conclusions and to adopt
the recommended Order. 2
For the reasons set forth below, we agree with the
judge that the Respondent violated Section 8(a)(5) and
(1) of the Act by prematurely declaring impasse and uni-
laterally implementing certain changes to its employees’
terms and conditions of employment.3
Facts
The Respondent operates a nursing home and rehabili-
tation center. The Respondent and the Union began ne-
gotiating for a successor to their expiring collective-

1 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.
The Respondent does not except to the judge’s findings that it vio-
lated Sec. 8(a)(1) by announcing to its employees that their accommo-
dated schedules would be eliminated, and violated Sec. 8(a)(3) and (5)
by unilaterally ending an accommodated schedule for employee Sharon
McLeod.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
3 We adopt the judge’s other contested findings of violations. How-
ever, in adopting the judge’s finding that the Respondent’s issuance of
merit bonuses violated Sec. 8(a)(5), Chairman Schaumber does not rely
on the judge’s alternate finding that, under McClatchy Newspapers, 321
NLRB 1386, 1390 (1996), enfd. 131 F.3d 1026 (D.C. Cir. 1997), cert.
denied 524 U.S. 937 (1998), even if a valid impasse was reached, the
Respondent could not implement the merit increases without bargain-
ing. See California Offset Printers, 349 NLRB 732, 738 fn. 5 (2007)
(Member Schaumber, dissenting).
bargaining agreement in February 2005.4 Throughout
the parties’ eight negotiation sessions, held from Febru-
ary to August 23, the contribution rate to the Union’s
health plan, the 1199 SEIU Greater New York Benefit
Fund (Benefit Fund), remained a contentious issue.
During the first negotiation session, the Union’s then
negotiator5 stated that its proposal for the Benefit Fund
(21 percent of gross unit employee payroll, with a 24-
percent cap during the contract term) was “nonnegotia-
ble.” At that time, the Union was in the midst of mul-
tiemployer negotiations with 20 New Jersey nursing
homes represented by Attorney Morris Tuchman. Those
contracts contained a most-favored-nations clause.6 The
Union modified its proposal on the Benefit Fund at the
June 17 session. It proposed the same provision con-
tained in the Tuchman master contract—a 22.33-percent
increase to the Benefit Fund, with no contractual cap.
Then, at the August 5 session, the Union proposed the
22.33-percent increase, but with no additional increases
during the contract term absent mutual agreement. The
Respondent rejected each of the Union’s proposals.
At the last bargaining session on August 23, the Re-
spondent made its final proposal, including an offer to
pay 16 percent of payroll to the Benefit Fund. Union
negotiator Alcoff stated that if the Respondent was un-
willing to increase its contribution offer, the Union
would be willing to “look at other plans,” including the
one the Respondent provided to its nonunion workers.
Alcoff also stated that he would prepare a counterpro-
posal. Although the Respondent claimed the parties
were at impasse, Alcoff requested, and the Respondent
agreed, to schedule another bargaining session. There
have been no negotiation sessions since the August 23
meeting. The Respondent subsequently implemented
certain changes to its employees’ terms and conditions of
employment.
Analysis
Impasse over a single issue may create an overall bar-
gaining impasse that privileges unilateral action if the
issue is “of such overriding importance” that it frustrates
the progress of further negotiations. CalMat Co., 331

4 All dates are in 2005, unless otherwise noted.
5 Uma Pimplaskar was the Union’s negotiator for the first two ses-
sions; Justin Foley represented the Union for the third through sixth
sessions; and Larry Alcoff took over for the last two sessions.
6 The clause provided, in relevant part:
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 condi-
tions to the employer than those contained herein, such more favor-
able terms and conditions shall automatically be applicable to the Em-
ployers. . . .
LAUREL BAY HEALTH & REHABILITATION CENTER 233
NLRB 1084, 1097 (2000). Here, the Benefit Fund con-
tributions clearly constituted such an issue. The dollar
amounts were significant and, throughout most of the
negotiation sessions, the parties remained steadfastly
fixed in their respective positions: the Union adhering to
the Tuchman agreement terms, and the Respondent re-
fusing to contribute more than 16 percent of payroll.
Had that status quo persisted, an overall impasse might
well have been achieved. It did not persist.
Uncontradicted testimony reflects that at the final ne-
gotiation session on August 23, Alcoff stated that the
Union was prepared to consider alternative medical in-
surance proposals, including the health care plan cover-
ing the Respondent’s nonunion employees. Alcoff also
stated that the Union would be preparing a counterpro-
posal. In addition, Alcoff requested, and the parties
agreed to, another bargaining session. Rather than test
the Union’s stated willingness to move, consider a union
counterproposal, or follow through with an additional
negotiation session, the Respondent claimed that the par-
ties were at impasse and refused to meet again.
The party asserting impasse as a defense to unilateral
action bears the burden of proof on the issue. North Star
Steel Co., 305 NLRB 45 (1991), enfd. 974 F.2d 68 (8th
Cir. 1992). We find that the Respondent has failed to
carry that burden here. Rather than evincing the exis-
tence of a bona fide impasse over health insurance as of
August 23, the record shows that the parties had agreed
to meet again, that the Union would be preparing coun-
terproposals, and that there was at least professed flexi-
bility on health insurance alternatives. While, the Re-
spondent might have reasonably doubted the sincerity of
the Union’s stated willingness to move from its Benefit
Fund proposals, it did not test that doubt. Moreover, the
evidence at the hearing established that the Union, in
fact, agreed to contracts with six other nursing homes in
New Jersey that did not include the Benefit Fund as the
insurance plan for unit employees. Thus, we cannot con-
clude, as the Respondent contends, that the Union’s Au-
gust 23 representations were disingenuous and intended
solely to stave off impasse. Based upon the foregoing,
we find that the parties had not reached an impasse in
bargaining, and that the Respondent violated Section
8(a)(5) when it unilaterally implemented various changes
in the employees’ terms and conditions of employment.
Cf. Newcor Bay City Division, 345 NLRB 1229, 1238–
1239 (2005) (the employer did not meet its burden of
proving further negotiations would have been futile when
it did not test the union’s stated flexibility before declar-
ing impasse).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Laurel Bay Health & Reha-
bilitation Center, Keansburg, New Jersey, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order.
Laura Elrashedy, Esq., for the General Counsel.
Alex Tovitz, Esq. (Jasinski & Williams, P.C.), of Newark, New
Jersey, 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 Com-
plaint 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 expira-
tion of the collective-bargaining agreement between the Re-
spondent and the Union, the Respondent unlawfully (a) imple-
mented a 3% wage increase for all unit employees retroactive
to August 14, 2005 (b) eliminated a transportation benefit pro-
viding 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 Re-
spondent made these changes in mandatory subjects of bargain-
ing in violation of Section 8(a)(5) of the Act without giving the
Union an opportunity to bargain with it concerning those mat-
ters. 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 Au-
gust 31, 2005, the Union requested certain relevant and neces-
sary 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 bar-
gain with it for the purpose of negotiating a successor collec-
tive-bargaining agreement and the Respondent failed to do so.
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

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, respec-
tively. The charge and first amended charge in Case No. 22–CA–27779
were filed on January 12 and February 1, 2007, respectively.
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD234
observation of the demeanor of the witnesses, and after consid-
ering the briefs filed by the General Counsel and the Respon-
dent, 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 di-
rectly 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 collec-
tive-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 re-
place 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 employ-
ees 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 agree-
ment.
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 bar-
gaining 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 tes-
timony 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 Qual-
ity 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-Manage-
ment Committees.
Jasinski, whose testimony concerning Pimplaskar’s com-
ments was uncontradicted, stated that she announced that cer-
tain 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 ob-
tain 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 dis-
cuss 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 negotiat-
ing 40 to 45 other contracts with nursing homes in multiem-
ployer bargaining with the “Tuchman” group of 20 New Jersey
nursing homes represented by attorney Morris Tuchman. She
claimed that if agreement was reached at Laurel Bay the con-
tract 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.
LAUREL BAY HEALTH & REHABILITATION CENTER 235
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 em-
ployer 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 arbitra-
tion provision, and suggested that no change be made in certain
other provisions of the expiring contract. No economic propos-
als 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 an-
nounced 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 Respon-
dent 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 be-
ing replaced as the Union’s negotiator by Justin Foley. In a
letter to Foley in April, Jasinksi asked for information concern-
ing 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 deteriorat-
ing 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 in-
formation 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 con-
cerning the Union’s alleged “non-negotiable” bargaining
stance.

3 All dates hereafter are in 2005, unless otherwise stated.
On May 14, Foley requested additional information regard-
ing Laurel Bay and four other nursing homes which were cur-
rently in negotiations with the Union.4 In a letter of May 21,
Foley explained that such information for Laurel Bay was pre-
viously requested but not received by the Union.
Jasinski took exception to Foley’s joint request for informa-
tion, noting that each facility was separate and negotiating indi-
vidually 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 pro-
posals 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 in-
formation as soon as possible. On May 21, Foley advised that
Jasinski had not provided certain of the prior information re-
quested.
4. The mid-May meeting
Foley stated that the parties reviewed the outstanding re-
quests for information, and then discussed the Union’s demands
and the Respondent’s counteroffer previously made. This ses-
sion lasted about 2½ hours.
5. The June 3 meeting
Foley testified that this session began with the parties re-
viewing 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, pen-
sion, 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 Un-
ion’s request, extending the expired contract to June 30 in

4 Pavilions at Forrestal, Monmouth Care, Milford Manor, and Pine
Brook.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD236
which the Respondent agreed to maintain the wages and bene-
fits 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 re-
quested, in an attempt to move the bargaining forward, it pre-
sented its first full economic proposal, in material part as fol-
lows:
(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 mini-
mum 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 va-
cation.
(j) No-Frills—Employees hired before March 31, 2005 as
no-frills employees shall be grandfathered into those posi-
tions. 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 pro-
posed 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 concern-
ing certain contract language, and agreement was reached on
three of four issues concerning discipline and discharge.
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 Un-
ion’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 con-
tracts 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 pro-
vided 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 fif-
teen 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 pro-
posal 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 be-
lieved 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
LAUREL BAY HEALTH & REHABILITATION CENTER 237
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 counter-
proposal and urged an off the record discussion with the Re-
spondent’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 “en-
emy” 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 ex-
perienced 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 agree-
ment 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 pro-
posal. 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 Re-
spondent 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 con-
tributions in excess of 22.33% are required to grant the cur-
rent benefits to the employees, the parties agree that, at the
Union’s sole option and discretion, to either provide that the

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.
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 Schein-
man. 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 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 provi-
sion 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 effec-
tive 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, tempo-
rary 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 cov-
erage 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD238
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 con-
tract” 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
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 favor-
able terms and conditions shall automatically be applicable
to the Employers, except that this provision shall not apply
. . . [listed are exceptions not applicable to the Respon-
dent].
35.3. This provision will apply only to the net eco-
nomic impact reflected by the modifications provided for
in this Agreement.
Alcoff testified that the most-favored-nations clause had lit-
tle 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 num-
ber of employees working and their scheduled hours, and the
amount of the patient census. He stated that net economic im-
pact 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 men-
tioning that clause as a “strawman.” He told Jasinski that the
Union’s proposals are “largely drawn” from the Tuchman con-
tract 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 “par-
ticular conditions” in each facility which might warrant a dif-
ferent 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 pro-
posals which were not unreasonable. He did not recall a spe-
cific 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 em-
ployers had separate “facility specific” parity raises included in
each contract’s “Schedule A.” In addition, at least six employ-
ers did not agree to make parity raises. Some facilities had dif-
ferent 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
different among the different employers in the Tuchman group.
However, all of the participants in the Tuchman contract con-
tributed to the Union’s Benefit Fund at the 22.33% contribu-
tion 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 Respon-
dent’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 counterof-
fer 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 Em-
ployer 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. Al-
coff 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
LAUREL BAY HEALTH & REHABILITATION CENTER 239
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 is-
sue 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 ses-
sions, 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 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 Re-
spondent 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 propos-
ing 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 Bene-
fit Fund premiums. Needless to say, nothing was agreed to
during that private conversation.
Alcoff stated that when he and Jasinski returned to the bar-
gaining room, Jasinski announced that the Respondent’s out-
standing 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 concern-
ing his written proposal of July 8. Such questions included the
effective date for wage raises for probationary employees com-
pleting 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, Al-
coff asked whether the Employer costed out each of its propos-
als 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 ques-
tions related to the Employer’s providing benefits only to em-
ployees 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
those questions, the possibility of having such a discussion was
“very difficult.”
Alcoff denied asking the questions in order to avoid a find-
ing that impasse had occurred. At hearing, Jasinski described
Alcoff’s inquiries as hypothetical questions having no relation-
ship 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 con-
cerning 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD240
stated that no one mentioned that impasse had occurred. Alcoff
said that he would prepare a counteroffer, and asked to sched-
ule another bargaining session, adding that he needed informa-
tion on the types of questions he asked because he needed to
know “in real terms” what the impact of the Respondent’s pro-
posals 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 propos-
als and that there were outstanding information requests con-
cerning 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, say-
ing 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 in-
formation is necessary for and relevant to the performance of
the Union’s duties as the exclusive collective-bargaining repre-
sentative of the unit employees.
Jasinski testified that at the time of the final bargaining ses-
sion 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
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 compre-
hensive 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 em-
ployee for those plans. The letter also requested a list of em-
ployees (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 re-
quested 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; correspon-
dence 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 in-
formation. Essentially, the information was requested in order
to clarify certain parts of the Employer’s proposal and to de-
termine the costs and the impact on the employees of such pro-
posals. 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 Re-
spondent’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 consid-
ered 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 Sep-
tember 1. The letter asked whether the Respondent also imple-
mented the other parts of its proposal such as eliminating daily
overtime and overtime on the 6th and 7th day; reducing vaca-
tion accruals and its contributions to the Benefit Fund; eliminat-
ing 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 mean-
ingful proposals directed toward reaching an amicable agree-
ment that addresses the needs of our employees and this facil-
ity. We wish to avoid the game-playing by the Union and with-
out the Union trying to force us to accept the agreement negoti-
ated by other parties.”
LAUREL BAY HEALTH & REHABILITATION CENTER 241
Jasinski’s testimony that Alcoff never responded to his No-
vember 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 re-
quested in its letters of August 31 and September 2. Alcoff also
requested information concerning certain alleged unilateral
changes the Employer made. Such requests included informa-
tion 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 be-
cause he needed fresh information about the work force to sup-
plement 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 for-
mer 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 nego-
tiation 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 conven-
ience, 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 Un-
ion representative Norman Degeneste called on December 9
and said that the session scheduled for that date or for Decem-
ber 19 would be postponed because of an expected snowstorm.6
He also wrote that he had “no record of the session for Decem-
ber 19th and in light of the impending snowstorm suggest alter-
nate 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 De-
cember 9 or 19, meeting, and that he was informed by De-

6 There was some confusion as to whether Degeneste was allegedly
canceling the December 9 or the December 19 session.
geneste 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 avail-
able 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.”
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 “re-
peatedly stated that they cannot agree to any contract that devi-
ates from contracts covering other New Jersey employers.” At
hearing, Alcoff denied making that statement.
On July 10, Alcoff wrote to administrator Willinger request-
ing 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 em-
ployees 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 infor-
mation 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 informa-
tion. Alcoff noted that the Employer had not presented the Un-
ion 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. Al-
coff 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD242
“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 infor-
mation 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 re-
quested.” 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.
The letter requested information concerning the merit pay bo-
nuses including who received them, the date they were given,
their amount; information concerning evaluations or wage sur-
veys 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 contin-
ues 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 informa-
tion contained in its letters of August 31, September 2, Novem-
ber 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 col-
lective-bargaining agreement, the Respondent unilaterally im-
plemented a 3% wage increase for all unit employees retroac-
tive to August 14, 2005, consistent with its last offer. The Re-
spondent’s answer to the complaint asserts that the parties bar-
gained 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 re-
sources 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 employ-
ees 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 explana-
tions. . . . Any CNA that is not using the Irvington transporta-
tion 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 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 Red-
dick, one of the van users, testified that Chan told the workers
that the meeting was being held because a couple of staff mem-
bers 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 pro-
vided 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 con-
cerning whether the Union should be notified of its cancella-
tion. 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.
LAUREL BAY HEALTH & REHABILITATION CENTER 243
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 re-
scheduled 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 coordi-
nator Hampton and human resources director Horath for per-
mission 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 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 in-
stead 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 accom-
modated. However, as a longstanding employee of the fa-
cility 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 em-
ployees 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 behav-
ior on several occasions and have received no satisfactory re-
sponse.”
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 sched-
ules.
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 “discrimina-
tion” Chan “took it seriously.” Horath denied that this conver-
sation 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 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 con-
tinued 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 men-
tioned 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 accom-
modating schedules are “becoming overwhelming,” that 11
people receive such schedules, and that he “can be a mean bas-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD244
tard.” 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 employ-
ees 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 accommo-
dated 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 reli-
gious 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 em-
ployees with accommodated schedules. She worked every Sat-
urday 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 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 fol-
lowing 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

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).
of all these rights must be consistent with the terms and condi-
tions of this Agreement and are not to be used as to discrimi-
nate 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 uni-
lateral changes in its employees’ terms and conditions of em-
ployment. “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), cit-
ing Bottom Line Enterprises, 302 NLRB 373 (1991). An em-
ployer violates Section 8(a)(5) and (1) of the Act by imple-
menting its final bargaining proposals without reaching a bar-
gaining 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 nego-
tiations have exhausted the prospects of concluding an agree-
ment.” 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.
The burden of demonstrating the existence of impasse rests
on the party claiming impasse—here the Respondent. Ser-
ramonte Oldsmobile, Inc., 318 NLRB 80, 97 (1995). The ques-
tion 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 nego-
tiations, 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 negotia-
tion. 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 pro-
posals 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
LAUREL BAY HEALTH & REHABILITATION CENTER 245
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 ques-
tion by the Respondent. It asserts that the Union did not enter
negotiations with an intent to reach agreement, but rather bar-
gained 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 pro-
posals 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 Bene-
fit 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 de-
manding that the Respondent make contributions at a certain
level and the Respondent refusing to do so. There is much fa-
cial appeal in the Respondent’s argument that the Union would
not deviate from its position on that issue. Thus, its first de-
mand, made in February, 2005, was for an increase of 21% of
gross payroll with a cap of 24% during the life of the agree-
ment. Its next demand, made on June 17, was for an increase of
22.33% with no assurance that it could not be raised. The Un-
ion’s final demand, made on August 5 was for a 22.33% in-
crease 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 bargain-
ing 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 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 Bene-
fit Fund increase which was lower than the raise ultimately
agreed to in the Tuchman agreement—22.33%,8 and the Re-
spondent consistently insisted that it would not agree to a
higher rate than its offer of 16%. See Richmond Electrical Ser-

8 The initial demand for a 21% raise was capped at 24%.
vices, 348 NLRB 1001, 1002–1003 (2006), cited by the Re-
spondent.
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 in-
crease 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 1060, 1064 (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 Un-
ion’s proposals at the August 5 meeting, and in its letter of
August 31, before the Respondent implemented any of its pro-
posals, advising Jasinski that he would prepare a counterpro-
posal 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 longer be fruitful. Huck Mfg. Co. v. NLRB, 693 F.2d 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 under-
standing 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD246
on important issues and the union had demonstrated flexibility.
Here too, on August 23, the Union advised that it would con-
sider another plan, inquired as to the Respondent’s health plan
in effect for its nonunit employees, and said that it would pre-
pare a counterproposal.
In light of Alcoff’s protestations and questions after impasse
was declared on August 23, his offer to prepare a counterpro-
posal, 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 Di-
vision, 345 NLRB 1229, 1239 (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 Rich-
mond 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 Rich-
mond, 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.” Roo-
sevelt Memorial Medical Center, 348 NLRB 1016, 1017
(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.” . . . Further-
more, 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 re-
garding 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.2d 622,
628 (D.C. Cir. 1968). “Anything that creates a new possibility
of fruitful discussion (event if it does not create a likelihood of
agreement) breaks an impasse . . . [including] bargaining con-
cessions 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 Re-
spondent’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 at 1239, observed that when the respon-
dent 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 con-
cessions, but only declared its intention to be flexible and con-
tinue bargaining.” See Ead Motors, above at 1064. The Board
also noted that although a “wide gap” existed between the par-
ties’ positions, no impasse occurred where there was a possibil-
ity of further movement on important issues. Newcor, above at
1238–1239. 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 im-
passe 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 discus-
sion 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 Sys-
tems Co., 328 NLRB 585, 586 (1999), the Board found that no
impasse had occurred where the union had not yet offered spe-
cific concessions, but on the last day of negotiations had de-
clared its intention to be flexible, said it did not want impasse,
sought another bargaining session and asked for a federal me-
diator. “The essential question is whether there has been
movement sufficient ‘to open a ray of hope with a real potenti-
ality for agreement if explored in good faith in bargaining ses-
sions.’” Hayward Dodge, 292 NLRB 434, 468 (1989). I find
that such ray of hope presented itself at the last bargaining ses-
sion 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 nego-
tiating 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 infor-
mation as to the open issues, specifically the most important
one—the Benefit Plan. The Union said that it would consider
LAUREL BAY HEALTH & REHABILITATION CENTER 247
other plans which was a substantial change from its prior posi-
tion, 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.
The Respondent asserts that Alcoff asked numerous ques-
tions at the end of the August 23 bargaining session in an at-
tempt to preclude an otherwise valid impasse. E.I. du Pont &
Co., 346 NLRB 553, 558 fn. 9 (2006). Although there is some
support for finding that Alcoff desperately asked a large num-
ber of questions of Jasinski at the last session in order to fore-
stall 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 Re-
spondent’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.2d 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 1040, 1043 (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 bargain-
ing.
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 imple-
mentation of the wage increase. This is so because any impasse
was broken when the Union informed the Respondent on Au-
gust 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 seek-
ing 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 prepar-
ing 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 dur-
ing the course of bargaining notwithstanding the adamance
with which they refuse to accede at the outset. Effective bar-
gaining 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.2d 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 declara-
tion 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.
B. The Alleged Unilateral Changes in Conditions
of Employment
Section 8(a)(5) prohibits an employer from unilaterally insti-
tuting 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 Re-
spondent 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 bar-
gaining, 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 Ser-
vices, 345 NLRB 973 (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 else-
where that the parties intended the management rights clause to
survive the expiration of the agreement. Accordingly, the Re-
spondent 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 manda-
tory 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD248
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 con-
sciously 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 col-
lective-bargaining agreement, it implemented a 3% wage in-
crease for all unit employees retroactive to August 14, 2005.
The Respondent’s answer to the complaint asserts that the par-
ties bargained to impasse and it therefore had the right to uni-
laterally implement its last best offer.
First, inasmuch as I have found above that no legally permis-
sible 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.
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, bo-
nuses, 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 anni-
versary, 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 statu-
tory right to be notified of the implementation, the expired con-
tract 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 bo-
nuses 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 imple-
ment the increases.
Assuming that impasse had occurred, ordinarily, an em-
ployer 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 discretion-
ary powers that effect recurring unilateral decisions regarding
changes in the employees’ rates of pay. . . . Allowing the em-
ployer 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 Newspa-
pers, 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 sys-
tem of collective bargaining meant to promote industrial stabil-
ity.” 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 discre-
tion over the timing and amount of individual merit increase”
and which were not subject to the grievance-arbitration provi-
sions 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 issu-
ance of merit bonuses 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 griev-
ance-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 de-
fenses and proceed directly to arbitration. I find that deferral is
inappropriate inasmuch as the contract expired 16 months be-
fore 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 proce-
dure.” 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 Respon-
dent violated Section 8(a)(5) of the Act.
LAUREL BAY HEALTH & REHABILITATION CENTER 249
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 Sec-
tion 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 man-
agement 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 sur-
vive the expiration of the contract.
The evidence supports a finding that 11 employees had ac-
commodated 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 ac-
commodated schedules.
The Respondent’s reaction to McLeod’s filing of a grievance
to the elimination of her accommodated schedule was to inves-
tigate which of the 11 workers were not adhering to the con-
tract’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 em-
ployees, who did work every other weekend could retain their
accommodated schedules. However, although McLeod appar-
ently 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 ac-
commodated schedules in fact retained those schedules as testi-
fied by Horath although she quoted Chan as saying that the
accommodated schedules of all 11 employees would be elimi-
nated.
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.

9 There is nothing unlawful or improper in the Respondent’s requir-
ing employees to work every other weekend.
10 There was no claim that McLeod did not work every other week-
end.
I accordingly find that the Respondent, in violation of Sec-
tion 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 em-
ployees were granted accommodated schedules, prompted a
meeting by nursing director Chan at which he announced that
the accommodated schedules of 11 employees would be elimi-
nated. 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 “cor-
nered” and can be a “bastard.”
There was no evidence as to why such requests were over-
whelming 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 ac-
cordingly 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 griev-
ance. 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 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 accommo-
dated schedule in violation of Section 8(a)(3) of the Act.
In addition, I find that Chan’s announcement that all ac-
commodated 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 infor-
mation. It is alleged that the information is necessary for and
relevant to the performance of the Union’s duties as the exclu-
sive collective-bargaining representative of the unit employees.
The Respondent’s answer to the complaint asserts that it pro-
vided the Union with “any and all information as required un-
der 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 pre-
pare a counterproposal to the Respondent’s final offer (b) clari-
fying the Respondent’s proposals (c) regarding terms and con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD250
ditions 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 con-
templates 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 be-
cause the request was made after impasse. Watkins Contract-
ing, 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 1159, 1159–1160 (2006),
the Board set out the relevant law:
An employer’s duty to bargain includes a general duty to pro-
vide information needed by the bargaining representative to
assess claims made by the employer relevant to contract nego-
tiations. 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 deter-
mining relevance in information requests.”
Moreover, the Respondent’s own bargaining positions made
the requested information directly relevant. In Caldwell, above
at 1160, the Board found that the employer “premised its bar-
gaining 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 counterpro-
posals.” It found that the union’s requests were “narrowly tai-
lored in response to the respondent’s own claims. . . .” Accord-
ingly the Board found that the “respondent, in the course of
bargaining, made the information relevant and created the obli-
gation 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 per-
tained to the unit employees, was necessary for and relevant to
the performance of the Union’s duties as the exclusive collec-
tive-bargaining representative of the unit employees. The Re-
spondent’s reasons for failing to provide the information re-
quested, that it was only an attempt to stall bargaining and that
the information requested was duplicative of information al-
ready given to the Union do not have merit.
The Respondent’s failure to furnish the information re-
quested 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 collec-
tively 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 1016, 1017 (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 re-
quested that a mediator be present. Not having received a re-
sponse, 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 Decem-
ber 1, 9, and 13 or 19, and asked Alcoff to call to confirm. I
noted above that Jasinski’s testimony that Alcoff did not re-
spond to this letter was contradicted by Alcoff’s letter of No-
vember 23 in which he confirmed that he was available on De-
cember 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 meet-
ing.
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 can-
celed the meeting, particularly since the parties had not met for
nearly four months and the Union was trying to have a negotiat-
ing session.
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 Un-
ion’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
LAUREL BAY HEALTH & REHABILITATION CENTER 251
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 inten-
tion 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 in-
credibly claiming that a Union agent cancelled the other De-
cember 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 in-
formation requested. I have found above that the information
was presumptively relevant and necessary to the Union’s per-
formance of its representational duties. In addition, the Union
did not condition meeting on its receipt of the information re-
quested. It offered to meet without condition but the Respon-
dent 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 exclu-
sive 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 imple-
menting 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.
5. The Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally eliminating a transportation benefit provid-
ing 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 accommo-
dated 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 nec-
essary 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 sched-
ules would be eliminated.
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. Specifically, inasmuch as I have
found that no legally valid impasse in bargaining has been
reached, I recommend that the Respondent be ordered to re-
scind 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,
Keansburg, New Jersey, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(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.

11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD252
(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 Respon-
dent’s unit employees.
(e) Failing to meet with the Union to engage in good faith
bargaining for the purpose of negotiating a successor collec-
tive-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 effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive rep-
resentative of the employees in the following appropriate unit
concerning terms and conditions of employment and, if an un-
derstanding 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 bargain-
ing.
(d) At the Union’s request, restore the accommodated sched-
ule 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 con-
ditions 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, re-
move 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 addi-
tional 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 re-
cords, 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 fa-
cility 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 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
copy of the notice to all current employees and former employ-
ees 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.
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
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:

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 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.”
LAUREL BAY HEALTH & REHABILITATION CENTER 253
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 rele-
vant 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 col-
lective-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, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
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 condi-
tions 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 uni-
lateral 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 condi-
tions 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 infor-
mation requested in the Union’s letters dated August 31, Sep-
tember 2, November 23, 2005, July 10, 2006 and January 10,
2007.
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 pay-
ments due under the terms of this Order.
LAUREL BAY HEALTH & REHABILITATION CENTER