Pavilions at Forrestal and Princeton Healthcare

National Labor Relations Board - Board Decisions

Dec 5, 2008

353 N.L.R.B. 540 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 60
540
Atrium at Princeton, LLC d/b/a Pavilions at Forrestal
and Princeton Healthcare, LLC d/b/a Pavilions
at Forrestal and SEIU 1199 New Jersey Health
Care Union. Cases 22–CA–27066, 22–CA–
27289, 22–CA–27315, and 22–CA–27601
December 5, 2008
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
DECISION AND ORDER
On April 15, 2008, Administrative Law Judge Steven
Davis issued the attached decision. The Respondents
jointly filed exceptions and a supporting brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
brief and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions3 as modified below and to adopt

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members 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
2 The Respondents have 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 Respondents also contend that the
judge demonstrated bias and prejudice. On careful examination of the
judge’s decision and the entire record, we are satisfied that the Respon-
dents’ contentions are without merit. Although the judge excerpted
language from his decision in another case that involved some of the
same issues and witnesses, he independently discussed and analyzed
the evidence in this case and his findings and conclusions appear to be
drawn exclusively from the record herein.
In affirming the judge’s credibility findings, Chairman Schaumber
does not rely on the judge’s blanket statement, in the “Statement of the
Case” section of his decision, that his findings of fact were based in
part on his “observation of the demeanor of the witnesses.” See then
Member Schaumber’s dissent in Atlantic Veal & Lamb, Inc., 342
NLRB 418, 421–422 (2004) (judge’s blanket statement relying on
observation of witness demeanor was insufficient to support credibility
resolution absent an explanation of the demeanor-based indicia that
influenced the judge). Rather, Chairman Schaumber notes that in mak-
ing his credibility resolutions, the judge did not rely solely on his blan-
ket “observation of the demeanor” statement, but rather analyzed and
balanced the witnesses’ testimony and gave other reasons for his credi-
bility resolutions.
3 In adopting the judge’s finding that Respondent Princeton’s August
24, 2005 letter to employees constituted unlawful direct dealing,
Chairman Schaumber notes that the letter contained an important con-
tractual term (12-percent wage increase) that the Respondent had not
yet presented to the Union. The letter also falsely represented that the
Union had rejected a proposal, which, in fact, it had never seen. Fur-
ther, this direct communication with employees occurred in the context
the recommended Order as modified and set forth in full
below.4
1. We agree with the judge that Respondent Atrium
violated Section 8(a)(5) and (1) of the Act by failing and
refusing to bargain in good faith with the Union for a
successor collective-bargaining agreement. We find it
unnecessary to decide whether the parties had reached a
genuine impasse in their negotiations, however, as any
impasse that existed was broken in January 2006 when
Respondent Atrium unilaterally implemented a new
health insurance plan without providing the Union with
notice and an opportunity to bargain and failed and re-
fused to provide the Union with requested information
concerning the new plan.
“An impasse does not destroy the collective-
bargaining relationship. Instead, a genuine impasse
merely suspends the duty to bargain over the subject
matter of the impasse until changes in circumstances
indicate that an agreement may be possible.” Airflow
Research & Mfg. Corp., 320 NLRB 861, 862 (1996)
(footnote omitted). Anything that creates a new possibil-
ity of fruitful discussion breaks an impasse and revives
an employer’s obligation to bargain over the subjects of
the impasse. Id., citing Gulf States Mfrs. v. NLRB, 704
F.2d 1390, 1399 (5th Cir. 1983).
By the Respondents’ own admission, health benefits
were a critical issue in the negotiations for a successor
agreement. The Respondents have consistently main-
tained that the Union’s inflexibility on this issue contrib-
uted to a breakdown in negotiations. Under the expired
agreement, Respondent Princeton was required to make
monthly contributions to the 1199 SEIU Greater New
York Benefit Fund (the benefit fund) in the amount of
approximately 16 percent of gross payroll, excluding
overtime. Throughout negotiations, the Union adhered
to a proposal that required the Respondents’ continued

of a myriad of unfair labor practices. In similar circumstances, the
Board has found direct dealing violations. See Government Employees
(IBPO), 327 NLRB 676 (1999), enfd. mem. 205 F.3d 1324 (2d Cir.
1999) (Board adopted judge’s finding that employer engaged in unlaw-
ful direct dealing by presenting a wage proposal to employees before
adequately presenting it to the union); Detroit Edison Co., 310 NLRB
564, 565 (1993). Chairman Schaumber did not participate in those
cases and does not view them as establishing a per se rule that any
communication to employees of a contract proposal that has not yet
been presented to a union constitutes unlawful direct dealing. How-
ever, he agrees that, under extant precedent, which he applies for insti-
tutional reasons, the judge did not err in finding a direct dealing viola-
tion on the specific facts of this case.
4 We shall modify the judge’s conclusions of law and remedy to
clarify the violations found and to conform to the Board’s standard
remedial language. For the reasons explained below, we shall also
substitute separate orders and notices for the common order and notice
recommended by the judge.
PAVILIONS AT FORRESTAL & PRINCETON HEALTHCARE

541
participation in the benefit fund at a significantly in-
creased contribution rate, while the Respondents offered
to continue participating at approximately the same rate
as under the expired agreement. As of the final negotiat-
ing session on November 29, 2005, the parties remained
far apart on this issue.
On December 1, 2005, the benefit fund terminated
benefits for the Respondents’ employees, after sending
several letters advising Respondent Princeton that it was
delinquent in its contributions and demanding payment.
On about December 9, 2005, Respondent Atrium took
over the operations and management of the facility from
Respondent Princeton.5 On an unspecified date in Janu-
ary 2006, Respondent Atrium unlawfully implemented a
new health insurance plan without providing the Union
with notice and an opportunity to bargain.
By letter dated January 19, 2006, the Union requested
information and demanded bargaining concerning the
new plan. The Union repeated its information request in
letters of June 20, July 17, and November 13, 2006. In
its November 13 letter, the Union stated that it needed
the requested information in order to bargain effectively,
and it reminded Respondent Atrium that “Health benefits
are a significant issue in our negotiations and the Union
has stated that we are open to considering health benefits
other than those provided through the Greater New York
Benefit Fund.”
The cancellation of the existing health insurance plan
and the necessity of obtaining alternate coverage changed
the backdrop of negotiations and created the possibility
of productive bargaining. Had Respondent Atrium pro-
vided the Union with notice and an opportunity to bar-
gain prior to implementing the new health insurance plan
and/or provided the requested information concerning
plan benefits and costs, it may have led to informed bar-
gaining and an earlier offer by the Union to consider al-
ternate plans. By unlawfully denying the Union the op-
portunity to bargain over the new plan and to inspect
records that could very well convince the Union to
change its health benefits proposal, the Respondent arti-
ficially perpetuated deadlock. We therefore conclude
that impasse, if any, no longer existed on January 19,
2006, when the Union requested information and de-
manded bargaining concerning the new plan. By ignor-
ing the Union’s numerous requests to resume negotia-
tions on and after that date and by engaging in delaying
tactics, Respondent Atrium failed to bargain in good
faith with the Union for a successor collective-bargaining

5 The parties stipulated that Respondent Atrium is a legal successor
to Respondent Princeton with an obligation to recognize and bargain
with the Union.
agreement in violation of Section 8(a)(5) and (1) of the
Act.6
Because we agree with the judge that Respondent
Atrium unlawfully failed to bargain in good faith for a
successor agreement, we find it unnecessary to pass on
his further finding that Respondent Princeton violated
Section 8(a)(5) by the same or similar conduct. Respon-
dent Princeton ceased operations at the facility involved
in these proceedings on about December 9, 2005, and
any additional violation based on Respondent Princeton’s
conduct would not affect the remedy.
2. In finding that Respondent Atrium violated Section
8(a)(5) by refusing to furnish requested information, the
judge determined that all of the information the Union
requested in its letters of January 19, June 20, and July
17, 2006, including the unit employees’ social security
numbers, was presumptively relevant. While we agree
with the judge that the Union was entitled to receive the
other requested information, the Board has held that so-
cial security numbers are not presumptively relevant and
that the union must therefore demonstrate the relevance
of such information. See Bookbinder’s Seafood House,
Inc., 341 NLRB 14, 15 fn. 1 (2004); ABF Freight Sys-
tem, Inc., 325 NLRB 546 (1998). We find that the Union
has not demonstrated such relevance here. Accordingly,
we shall not require Respondent Atrium to give the Un-
ion the employees’ social security numbers.
3. The judge’s recommended Order effectively re-
quires Respondent Princeton and Respondent Atrium
jointly and severally to remedy all of the unfair labor
practices found. However, we discern no basis for im-
posing joint and several liability on the Respondents.
The General Counsel did not plead in his complaint
that the Respondents are alter egos or joint employers, or
that Respondent Atrium is liable to remedy Respondent
Princeton’s unfair labor practices as a successor under
Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973).
Nor did the General Counsel advance those theories at
trial. Further, as noted above, Respondent Princeton
ceased operations at the Pavilions facility on December
9, 2005, and there is no evidence that it participated in
the unfair labor practices committed by Respondent
Atrium after that date. In these circumstances, we find
that the imposition of joint and several liability is unwar-
ranted. Accord: Diamond Detective Agency, 339 NLRB
443, 445 fn. 5 (2003) (Board reversed judge’s recom-
mendation that successor employer be required to rem-

6 The Union offered to meet on all dates in February 2006, 5 dates in
June 2006, 21 dates in July 2006, 1 date in August 2006, 2 weeks in
December 2006, and 1 week in January 2007. The only date that was
agreed to by Respondent Atrium was June 12, 2006, and the parties did
not meet on that date due to an internal union election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD542
edy unfair labor practices of its predecessor, because
complaint did not allege that successor employer was a
Golden State successor and General Counsel never ad-
vanced that theory at trial); Blu-Fountain Manor, 270
NLRB 199 fn. 4 (1984), enfd. sub nom. NLRB v. Jarm
Enterprises, Inc., 785 F.2d 195 (7th Cir. 1986) (Board
reversed judge’s recommendation that predecessor em-
ployer be required to remedy successor’s unfair labor
practices, because there was no evidence that predecessor
employer participated in the unfair labor practices).
Accordingly, we shall require the Respondents to rem-
edy only the respective violations that they committed.
In order to clarify the remedial obligations of the Re-
spondents, we shall issue separate orders and notices.
AMENDED CONCLUSIONS OF LAW
1. The Respondents are employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees constitute a unit appro-
priate for collective bargaining within the meaning of
Section 9(b) of the Act:
All full-time and part-time certified nurses’ assistants,
housekeeping employees, dietary employees, laundry
employees, staff licensed practical nurses, unit clerks,
unit secretaries, activities/recreations employees, main-
tenance employees employed at the Pavilions, but ex-
cluding registered nurses, office clerical employees,
supervisors, watchmen and guards.
4. At all times material the Union has been the exclu-
sive collective-bargaining representative of the employ-
ees in the above unit.
5. By bypassing the Union and dealing directly with
unit employees regarding terms and conditions of em-
ployment, Respondent Princeton violated Section 8(a)(5)
and (1) of the Act.
6. By engaging in delaying tactics, ignoring the Un-
ion’s requests to meet on numerous dates, and unrea-
sonably failing and refusing to meet and bargain for a
successor collective-bargaining agreement, Respondent
Atrium failed and refused to bargain in good faith with
the Union as the exclusive collective-bargaining repre-
sentative of the unit employees in violation of Section
8(a)(5) and (1).
7. By unilaterally changing the health insurance plan
that covered the unit employees’ health expenses without
providing the Union with notice and an opportunity to
bargain, Respondent Atrium violated Section 8(a)(5) and
(1).
8. By unilaterally eliminating the Baylor Incentive
Program without providing the Union with notice and an
opportunity to bargain, Respondent Atrium violated Sec-
tion 8(a)(5) and (1).
9. By unilaterally changing the access rights of union
representatives to its facility without providing the Union
with notice and an opportunity to bargain, Respondent
Atrium violated Section 8(a)(5) and (1).
10. By failing and refusing to supply relevant and nec-
essary information requested by the Union in letters of
January 19, June 20, and July 17, 2006, Respondent
Atrium violated Section 8(a)(5) and (1).
11. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
AMENDED REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent Atrium violated Section
8(a)(5) and (1) of the Act by failing and refusing to meet
and bargain in good faith with the Union for a successor
collective-bargaining agreement, we shall order the Re-
spondent to do so on request, and, if an understanding is
reached, to embody that understanding in a signed
agreement.
Having found that Respondent Atrium violated Section
8(a)(5) and (1) by changing the health insurance plan that
covered the unit employees’ health expenses and by
eliminating the Baylor Incentive Program, we shall order
Respondent Atrium, if requested to do so by the Union,
to rescind the unilateral changes and restore the Baylor
Incentive Program and the previously existing health
insurance plan.7 To the extent that the unlawful unilat-
eral changes have improved the terms and conditions of
employment of unit employees, the Order set forth below
shall not be construed as requiring or authorizing Re-
spondent Atrium to rescind such improvements unless
requested to do so by the Union. We shall further order
Respondent Atrium to make whole the unit employees
and former unit employees for any loss of wages or other
benefits they suffered as a result of Respondent Atrium’s

7 Respondent Atrium may litigate in compliance whether it would be
impossible or unduly or unfairly burdensome to restore the prior health
insurance coverage provided through the 1199 SEIU Greater New York
Benefit Fund. See, e.g., Laurel Baye Healthcare of Lake Lanier, LLC,
352 NLRB 179 fn. 3 (2008). If the Union chooses continuation of the
unilaterally implemented health insurance plan, then make-whole relief
for the unilateral change is inapplicable. See id. (citing Brooklyn Hos-
pital Center, 344 NLRB 404 (2005)). Although Member Liebman
dissented on that point in Brooklyn Hospital Center, supra at fn. 3, she
recognizes that it is extant Board law and, for that reason alone, applies
it here.
PAVILIONS AT FORRESTAL & PRINCETON HEALTHCARE

543
implementation of new terms and conditions of employ-
ment in the manner prescribed in Ogle Protection Ser-
vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
Having found that Respondent Atrium violated Section
8(a)(5) and (1) by changing the access rights of union
representatives to its facility, without giving the Union
notice and an opportunity to bargain, we shall order Re-
spondent Atrium to rescind the unilateral change.
In addition, having found that Respondent Atrium vio-
lated Section 8(a)(5) and (1) by failing and refusing to
furnish the Union relevant and necessary information
requested in its letters of January 19, June 20, and July
17, 2006, we shall order the Respondent to furnish the
Union with the requested information, excluding em-
ployees’ social security numbers.
Finally, because it appears that Respondent Princeton
has ceased operations at the facility involved in these
proceedings, we shall order Respondent Princeton to
duplicate and mail, at its own expense, a copy of the no-
tice marked “Appendix A” to all current and former em-
ployees employed by Respondent Princeton at that facil-
ity at any time since August 24, 2005.
ORDER
A. The National Labor Relations Board orders that the
Respondent, Princeton Healthcare LLC d/b/a Pavilions at
Forrestal, Wayne, New Jersey, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Bypassing 1199 New Jersey Health Care Union
and dealing directly with its employees represented by
the Union with regard to wages, hours, or other terms
and conditions of employment.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, mail a
copy of the attached notice marked “Appendix A”8 to all
current and former employees who were employed by
Respondent Princeton at the Pavilions facility at any time
since August 24, 2005. The notices shall be mailed to
the last known address of each of the employees after

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
being signed by the authorized representative of Respon-
dent Princeton.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.
B. The National Labor Relations Board orders that the
Respondent, Atrium at Princeton, LLC d/b/a Pavilions at
Forrestal, Wayne, New Jersey, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
SEIU 1199 New Jersey Health Care Union as the exclu-
sive bargaining representative of the employees in the
appropriate unit by engaging in delaying tactics, ignoring
the Union’s requests to meet on numerous dates, and
unreasonably failing and refusing to meet and bargain for
a successor collective-bargaining agreement. The appro-
priate unit is:
All full-time and part-time certified nurses’ assistants,
housekeeping employees, dietary employees, laundry
employees, staff licensed practical nurses, unit clerks,
unit secretaries, activities/recreations employees, main-
tenance employees employed at the Pavilions, but ex-
cluding registered nurses, office clerical employees,
supervisors, watchmen and guards.
(b) Unilaterally changing terms and conditions of em-
ployment or other mandatory subjects without providing
the Union with notice and an opportunity to bargain.
(c) Failing to provide the Union with requested infor-
mation that is relevant and necessary to the Union’s role
as the exclusive collective-bargaining representative of
the unit employees.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the unit employees concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
(b) On the Union’s request, rescind the unilaterally
implemented changes in terms and conditions of em-
ployment, and restore the Baylor Incentive Program and
the previously existing health insurance plan.
(c) Make whole the unit employees for any losses suf-
fered by reason of the unlawful unilateral changes in
terms and conditions of employment, in the manner set
forth in the amended remedy section of this decision.
(d) Rescind the unilateral change in the access rights of
union representatives to its facility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD544
(e) Provide the Union with the information requested
in its letters dated January 19, June 20, and July 17,
2006, excluding employees’ social security numbers.
(f) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of money due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility in Wayne, New Jersey, copies of the attached
notice marked “Appendix B.”9 Copies of the notice, on
forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since January 1, 2006.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.
APPENDIX A
NOTICE TO EMPLOYEES
MAILED 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 mail and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection

9 Id. at 4.
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT bypass SEIU 1199, New Jersey Health
Care Union or any other labor organization and deal di-
rectly with our represented employees with regard to
wages, hours, or other terms and conditions of employ-
ment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
PRINCETON HEALTH CARE, LLC
D/B/A PAVILIONS AT FORRESTAL
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to bargain in good faith
with SEIU 1199 New Jersey Health Care Union (the Un-
ion) as the exclusive bargaining representative of the
employees in the unit described below by engaging in
delaying tactics, ignoring the Union’s requests to meet
on numerous dates, and unreasonably failing and refus-
ing to meet and bargain for a successor collective-
bargaining agreement. The unit is:
All full-time and part-time certified nurses’ assistants,
housekeeping employees, dietary employees, laundry
employees, staff licensed practical nurses, unit clerks,
unit secretaries, activities/recreations employees, main-
tenance employees employed at the Pavilions, but ex-
cluding registered nurses, office clerical employees,
supervisors, watchmen and guards.
WE WILL NOT unilaterally change terms and conditions
of employment or other mandatory subjects, without
providing the Union with notice and an opportunity to
bargain.
PAVILIONS AT FORRESTAL & PRINCETON HEALTHCARE

545
WE WILL NOT fail to provide the Union with requested
information that is relevant and necessary to the Union’s
role as the exclusive collective-bargaining representative
of our employees in the unit described below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, on request, bargain with the Union as the
exclusive representative of our unit employees concern-
ing terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a
signed agreement.
WE WILL, on the Union’s request, rescind our unilater-
ally implemented changes in terms and conditions of
employment and restore the Baylor Incentive Program
and the previously existing health insurance plan.
WE WILL rescind our unilateral change in the access
rights of union representatives to our facility.
WE WILL make the unit employees whole, with inter-
est, for loss of earnings and benefits suffered as a result
of our unlawful unilateral changes in terms and condi-
tions of employment.
WE WILL provide to the Union the information it re-
quested in its letters dated January 19, June 20, and July
17, 2006, excluding employees’ social security numbers.
ATRIUM AT PRINCETON, LLC D/B/A PAVILIONS
AT FORRESTAL
Laura Elrashedy and Bernard Mintz, Esqs., 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 July 9, 10, 13 and on
October 9 and 18, 2007. A consolidated complaint was issued
against Atrium at Princeton, LLC d/b/a Pavilions at Forrestal
(Atrium) and Princeton Healthcare LLC d/b/a Pavilions at For-
restal (Princeton), herein variously called Atrium, Princeton,
Respondent, Employer, or Respondents, on December 29, 2006
based on various charges and amended charges filed by SEIU
1199 New Jersey Health Care Union (Union).1

1 The charge in Case No. 22–CA–27066 was filed on August 31,
2005. The charge, first amended charge, second amended charge, and
third amended charge in Case No. 22–CA–27289 were filed on Febru-
ary 23, April 27, May 22, and May 31, 2006, respectively. The charge,
first amended charge and second amended charge in Case No. 22–CA–
27315 were filed on March 15, April 27, and May 22, 2006, respec-
tively. The charge in Case No. 22–CA–27601, was filed on October 4,
2006. A copy thereof was inadvertently omitted from the exhibit file.
General Counsel’s unopposed motion to include it is granted.
The complaint alleges essentially that certain unfair labor
practices were committed by Princeton, an owner of a nursing
home, and by its purchaser and successor Atrium. Specifically,
the complaint alleges that on about August 24, 2005, Princeton
bypassed the Union and dealt directly with its employees by
making a contract proposal to them before the proposal was
made to the Union.
It is further alleged that from about August 25, 2005 to about
December 9, 2005, Princeton failed and refused to bargain with
the Union over a successor collective-bargaining agreement by
engaging in delaying tactics, ignoring the Union’s requests to
meet on numerous dates it had proposed to bargain, and by
unreasonably failing and refusing to meet on nearly all of those
dates. The Respondent admitted that Atrium became the suc-
cessor to Princeton on or about December 9, 2005. The com-
plaint alleges that Atrium committed the same violations from
about December 9, 2005.
It is also alleged that in about January, 2006, Atrium
changed the health insurance plan that covered unit employees’
health expenses, and that on about March 1, 2006, Atrium
eliminated the Baylor Incentive Program which provided mone-
tary incentives for licensed practical nurses who agreed to regu-
larly work on both Saturday and Sunday every weekend. It is
alleged that these changes are mandatory subjects of bargaining
and that they were made without notice to the Union and with-
out affording it an opportunity to bargain concerning the
changes.
The complaint further alleges that since about July 20, 2006,
Atrium changed the access right of Union representatives to its
facility by denying them such access rights. Finally, it is al-
leged that on January 19, June 20 and July 17, 2006, the Union
requested certain relevant information, and that the Respondent
has failed and refused to furnish it.
The Respondent’s answer denied the material allegations of
the complaint and asserted certain affirmative defenses which
will be discussed below. On the entire record, including my
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
During the 12 months prior to the issuance of the complaint,
Princeton and Atrium has each derived gross revenues in excess
of $100,000 from its respective operations, and during that
period of time each has purchased and received at the Pavilions
facility goods and materials valued in excess of $5,000 directly
from points outside New Jersey. The Respondent admits and I
find that Princeton and Atrium each 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 Sec-
tion 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD546
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The former owner of the Respondent was Princeton, which
owned the real property. Hospicomm, which held the license
for the facility, was its operator and manager. Atrium bought
the property from Princeton and took over the operator’s li-
cense and management of the facility from Hospicomm. The
Respondent stipulated that Atrium is the successor employer to
Princeton. The facility was at all times called Pavilions at For-
restal. There was no break in service for the approximately 125
employees between the time they were employed by Princeton
and the time they were employed by Atrium.
The Respondent admits that on March 20, 2001, the Union
was certified as the exclusive collective-bargaining representa-
tive in the following appropriate unit:
All full-time and part-time certified nurses assistants, house-
keeping employees, dietary employees, laundry employees,
staff licensed practical nurses, unit clerks, unit secretaries, ac-
tivities/recreations employees, maintenance employees em-
ployed at the Pavilions, but excluding registered nurses, office
clerical employees, supervisors, watchmen and guards.
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’s predecessor, The Plaza Re-
gency at the Windrows and the Union were parties to a collec-
tive-bargaining agreement which ran from December 5, 2001 to
April 3, 2005. This case arises from negotiations between the
parties for a successor agreement.
B. The Bargaining
1. The Union’s strategy in the 2005 negotiations
Odette Machado, the Union’s former director of administra-
tive organizing whose duties were to supervise training of dele-
gates, coordinate organizers and lead contract negotiations, was
privy to the Union’s plans for bargaining.
Machado testified that prior to the 2005 negotiations, she
met with Larry Alcoff, the Union’s coordinator of its long-term
care division and an experienced union negotiator having bar-
gained more than 100 contracts in the health care field. To-
gether, they and the Union’s staff outlined the Union’s strategy
for the upcoming negotiations in New Jersey. Machado stated
that Alcoff said that the Union “had to meet certain standards
. . . in terms of what we needed to settle a contract and we
couldn’t deviate from it because . . . we had certain provisions
in the [Tuchman or master] contract, for example, the ‘most-
favored-nations’ clause that we had to be consistent with what
it called for or else the consequence would be that other em-
ployers who had a contract that was cheaper financially would
be able to call for the same thing if we reduced the standards.”
Machado also stated that Alcoff said that the Union could not
settle a contract until the contract “met certain standards” in-
cluding the Benefit Fund, salary and parity increases, and addi-
tional sick days and holidays.
According to Machado, Alcoff told the Union agents that the
David Jasinski-represented employers would be considered as
one group and identified it as “the bad group” which “can’t
help but be [an] evil employer” which is taking the Union to a
“race to the bottom and if we cannot meet the standards [or] get
the contracts then we would have to really come down very
hard on them.” Machado also quoted Alcoff as telling the Un-
ion representatives that the strategy was to “go after the em-
ployers, go after their attorneys, go after the owners and . . . try
to destroy them.”
Alcoff testified that the Union sought to have as many con-
tracts as possible expire in 2005 so that they could bargain them
at the same time. The Union sought to achieve the highest
wages, benefits and other conditions of employment. For ex-
ample, it attempted to establish a minimum pay of $10.00 per
hour for unlicensed staff and for those working in the house-
keeping, dietary and laundry departments, and $11.00 for certi-
fied nurses aides. In addition, the Union tried to achieve an
average raise of at least 4% per year and sought to preserve
fully paid health insurance, pension, paid time off, vacations,
holiday, sick and personal days. Alcoff stated that the Union’s
goal in bargaining was to win contracts that achieved those
standards across New Jersey; and that although there were
variations in the Union’s success in reaching those goals, it was
the Union’s aim to obtain those standards. He further noted that
the Union agreed to contracts that did not meet those goals or
standards, and they were not required of any employers at bar-
gaining.
Alcoff denied telling Machado not to deviate from state-wide
standards. He stated, in fact, that the contract he negotiated with
Meridian Nursing Home in 2005 contained no Benefit Fund
provisions, and differed from the state-wide standards. Alcoff
further stated that Machado negotiated a contract with Welling-
ton Nursing Home which did not meet the standards for state-
wide bargaining, and that she had the authority to negotiate and
reach agreement on contracts that did not contain those stan-
dards.
2. The bargaining sessions
The chief spokesperson for the Respondent was its attorney
David Jasinski. He was accompanied by John Pilek, the Re-
spondent’s administrator and thereafter by a new administrator,
George Mervine. The Union’s first chief spokesperson was
Uma Pimplaskar. She was replaced by Justin Foley who was
succeeded by Larry Alcoff. Prior to Alcoff’s becoming the
chief negotiator, he reviewed and approved the proposals
drafted by Pimplaskar and Foley, and discussed with them the
progress of the negotiations. An employee bargaining commit-
tee comprised of about 20 employees was present at each of the
sessions.
All of the eight bargaining sessions were held at the Em-
ployer’s premises. The bargaining culminated in an assertion by
the Respondent that impasse had been reached.
a. The bargaining session of February 24, 2005
Pimplaskar and Foley attended the first session. Pimplaskar
opened the negotiations by stating that the Union’s New Jersey
members at large, known at the “statewide bargaining guidance
committee” had met and formulated “goals” for all new con-
PAVILIONS AT FORRESTAL & PRINCETON HEALTHCARE

547
tracts being negotiated in that “cycle” and that the Union’s
proposal reflected those goals.2 Pimplaskar testified that the
Union sought to “accomplish” those goals as standards for the
Union in these negotiations but that the negotiations were
meant to be discussions on the proposals with the hope that the
final agreement reached would be the “best solution” for the
facility involved. Pimplaskar presented the Union’s written
proposal and discussed the items, outlining the changes sought
from the prior contract and explaining how the changes con-
formed to the Union’s goals it sought to reach in bargaining.
She conceded that Jasinski told her that he was only concerned
about reaching a contract for the employees employed at the
Respondent’s facility and was not concerned about the Union’s
state-wide bargaining goals. The session consumed 2½ hours.
The Union’s proposal, in material part, stated that effective
May 1, 2005, the Respondent shall make contributions to the
1199/SEIU Greater New York Benefit Fund (Benefit Fund) at
the rate of 21% of gross payroll “which rate may be adjusted by
the Trustees as necessary to maintain the level of benefits cur-
rently provided or as improved by the Trustees during the life
of the Agreement. However, in no event shall the rate be in-
creased above 24% of gross payroll during the life of this
Agreement.”
The proposal also demanded a 2½% of gross payroll contri-
bution to the Pension Fund; a ½% contribution to the Training
and Education Fund; and a ½% contribution to the Workers
Alliance for Quality in Long Term Care.
According to Foley, Jasinski responded by saying that the
Respondent was dissatisfied with the Union’s proposal in that
its demands were “unrealistic” since it was asking for “more
and more.” Jasinski contrasted the proposal with the expired
contract which provided that the Respondent make payments
for health insurance in the amount of $260 per month (about
13% of gross payroll not counting overtime pay) for all em-
ployees working 30 or more hours per week, and 2% to the
Pension Fund. He termed the increases in contributions an in-
crease from the prior contract and Foley agreed.
Jasinski testified that Pimplaskar’s opening statement in-
cluded her remarks that there were a number of provisions that
were not negotiable, including health and welfare benefits and
pension contributions. Jasinski stated that he responded by
saying that the Union is bargaining in bad faith by refusing to
negotiate about those matters. According to Jasinski, Pim-
plaskar also said that a state-wide group of employees, which
was selected by the Union, had the authority to ratify the con-
tract, and that the Respondent’s employees would not ratify any
agreement reached.
In contrast, Pimplaskar testified that the Respondent’s em-
ployees would ratify the proposed contract, and denied telling
Jasinski that the health and welfare and pension contribution
proposals were not negotiable. Indeed, she stated that all the
Union’s proposals were subject to negotiations. She also denied
that Alcoff told her that she could not deviate from the Union’s
initial proposals.

2 Jasinski asked for the names of the people comprising the commit-
tee. Pimplaskar said that she would provide that information. Foley did
not know whether she had.
No agreement was reached on any term of the Union’s pro-
posal at that meeting.
At the session, Pimplaskar made an information request and
thereafter, on March 10, the Respondent supplied certain cost
reports.
b. The bargaining session held in March, 2005
The Respondent presented its proposal in which it agreed to
minor changes such as a revision in the contract’s cover and
table of contents, a change in the Union’s address, and the addi-
tion of “sexual preference” to the listings in the “No Discrimi-
nation” clause. The proposal did not include any items dealing
with economics but Jasinski stated that they would be provided
following the Union’s presentation of its entire economic pro-
posal. As of this meeting, the Union had not made any proposal
concerning economic terms. Jasinski and Pimplaskar discussed
the Employer’s proposal. According to Jasinski, Pimplaskar
repeated that the Union would not entertain negotiations re-
garding its health and welfare or pension proposals.
Jasinski stated that following this session, Alcoff phoned
him, claiming that the Union would get the contract it wanted
“one way or another.” Alcoff insisted that the Union wanted the
“master agreement” and regardless of what he (Jasinski) does,
the Respondent is “powerless,” adding that he should not
“waste his time” and that he should not even negotiate. Jasinski
responded that he intended to negotiate a contract for the Re-
spondent which will address the needs of the facility and its
employees. Jasinski did not mention this call in any letter that
he sent to the Union complaining about its alleged bad faith
bargaining.
Alcoff denied having this conversation with Jasinski, and in-
deed denied speaking to Jasinski about the negotiations with the
Respondent before he became the lead negotiator in August,
2005.
Justin Foley Becomes the Chief Union Negotiator
The collective-bargaining agreement expired on April 3,
2005. In early April, Foley was appointed the chief negotiator.
Foley had acted as lead negotiator in the negotiation of two
contracts which he bargained to conclusion. During the course
of the bargaining here he consulted with Union president Milly
Silva and Alcoff, who described Foley as “inexperienced.”
On April 1, Jasinski wrote to Foley requesting certain infor-
mation and asking for a full economic proposal from the Union.
On April 12, Jasinski requested information regarding the
Benefit Fund. On April 18, he wrote that he received certain
information from the Union which was responsive, in part to
his request. However, he requested certain additional financial
records regarding the Benefit Funds. In the letter, Jasinski as-
serted that the Union’s bargaining position was that any pro-
posals regarding the Benefit Funds and the Respondent’s con-
tribution thereto are “non-negotiable.” Foley denied that the
Union took that position, but also did not respond to Jasinski’s
assertion because “it seemed false on its face.” As further proof
that that statement was not made, Foley offered that the Union
continued to negotiate and make proposals thereafter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD548
c. The bargaining session of June 8, 2005
The Respondent and the Union signed an agreement which
extended the expired collective-bargaining agreement. The
parties bargained regarding noneconomic items: layoff and
recall; discipline and discharge; transfer and promotion; senior-
ity and the grievance process. No agreement was reached on
any items at this session. Jasinski testified that he repeated his
request that the Union provide a full economic proposal. The
Union asked for the information it had previously requested
from the Employer.
Between June 8 and the next session, Foley was notified by
the Benefit Fund that the Respondent was delinquent in its
payments to the Fund.
A flyer was circulated by the Union advertising a June 11
workshop for Union members, including those at the Employer,
where the following was addressed: “How do we win what
members at 20 other nursing homes have gotten?”
d. The bargaining session of July 7, 2005
The parties discussed the Union’s outstanding information
requests, and presented their full economic proposals. Foley
read aloud the Union’s economic proposals in the context of its
goals, and he withdrew the proposal for contributions to the
Legal Fund.
In material part, the Union’s proposals consisted of the fol-
lowing wage increases: 8% effective April 1, 2005; 4% effec-
tive April 1, 2006; 4% effective April 1, 2007 – a total of a
16% increase over three years. Alcoff testified that the 2004
“make-whole” wage increase, discussed below, was included in
the 8% first year wage demand. The proposal also included
three additional sick days, more vacation days, more holidays,
and parity increases which provided that by the end of the three
year contract, certain categories of employees would have
minimum hourly rates of $10, $11 and $22.
The Union’s written proposal demanded that the Employer
pay 22.33% of gross payroll to the Benefit Fund. Foley testified
that in actuality the proposal was 22.33% over the life of the
agreement although he conceded that the proposal does not
contain such a limitation. He told Jasinski that the Respondent
could accept the Union’s first proposal, made on February 24,
that the Employer contribute at a rate of 21% of gross payroll
capped at 24%, or the current proposal of 22.33%. Alcoff testi-
fied that the Union’s 22.33% proposal amounted to about $425
per employee per month, or an approximate annual increase of
$185,000 in contributions from the Employer’s current pay-
ment of $260 per month or 13% of gross payroll.
In connection with the Benefit Fund, Foley advised that
Tony Petrella, a Benefit Fund employee, told him that the Em-
ployer was not contributing to the Benefit Fund and as a result,
employees’ health insurance was in “jeopardy.” Jasinski denied
that assertion.
The Respondent’s proposal included a wage increase of 3%
effective September 1, 2005; 2% effective September 1, 2006;
and a 2% raise effective September 1, 2007. The Employer also
proposed a merit pay clause, and a “no frills” rate of $11.50 for
unlicensed personnel and $23 for licensed practical nurses. The
Employer offered to pay 16% of gross payroll to the Benefit
Fund for the life of the agreement which, according to Jasinski,
was about the same as its current payment of $260 per month.
The Respondent also proposed giving a $100 “stipend” to those
employees who chose not to be covered by the Benefit Fund.
Foley testified that he believed that Jasinski knew that his
16% offer would be unacceptable to the Benefit Fund’s trustees
because it set the minimum contribution rate for participation in
the Benefit Fund, and he also believed that in making that offer
Jasinski sought to cease the Respondent’s participation in the
Benefit Fund.
The bargaining consisted of a discussion concerning the non-
economic matters previously addressed at the June 8 meeting.
The only agreement reached concerning those issues was the
Respondent’s acceptance of three of four clauses in the Union’s
proposal concerning discipline and discharge.
Jasinski testified that he was shocked at the Union’s in-
creased demands and told Foley that it did not appear that the
Union was serious about reaching agreement. As an example,
Jasinski told Foley that the Union’s proposal regarding “no
frills” and “agency” employees demonstrated that the Union
was not seeking a contract for this facility since it had no “no
frills” or agency employees. Jasinski quoted Foley as repeat-
edly saying that his “hands were tied” concerning certain pro-
posals which he could not discuss or modify, and that he could
not deviate from the terms of the Tuchman master agreement
because the most-favored-nations clause in that contract prohib-
ited the Union from giving the Respondent more favorable
provisions because such terms would have to be applied to
every signatory of the contract. Jasinski told him that he sought
to negotiate a contract for the Respondent only.
That most-favored-nations clause was in effect at that time
since 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 in-
dustry, represents that it intends to provide the same condi-
tions for workers in all nursing homes with which it has col-
lective bargaining agreements.
35.2. In the event the Union enters into any collective bargain-
ing agreement … on or after April 1, 2005 with a proprietary
nursing home in New Jersey which provides for more favor-
able economic terms and conditions to the employer than
those contained herein, such more favorable terms and condi-
tions shall automatically be applicable to the Employers, ex-
cept that this provision shall not apply … [listed are excep-
tions not applicable to the Respondent].
35.3. This provision will apply only to the net economic im-
pact reflected by the modifications provided for in this Agree-
ment.
On July 15, the day Foley left his employment with the Un-
ion, he wrote to Jasinski suggesting an off-the-record conversa-
tion in order to determine why the parties are “so far apart on
the economics.” Foley questioned the Respondent’s “ability or
will to meet the Union’s stated goals.” Foley’s letter was ad-
dressed to Jasinski regarding the five facilities they were bar-
gaining for at the time. The Respondent objected to addressing
PAVILIONS AT FORRESTAL & PRINCETON HEALTHCARE

549
the same letter to five facilities. Foley’s reasons were that the
facilities were related, Jasinski was bargaining in behalf of all
of them, the letter’s contents related to all five facilities, and he
believed that it was too time-consuming to send identical letters
to Jasinski for each facility. Foley also sent an exit memo to
Union president Silva in which he characterized Jasinski as the
“enemy” and that “management has put the standard Jasinski
bullshit on the table.”
Jasinski testified that he believed that Foley’s mention of the
Union’s “stated goals” referred to his insistence that the Re-
spondent accept the terms of the master agreement.
e. The bargaining session of August 12, 2005
Larry Alcoff became the Union’s chief negotiator in July,
2005. This bargaining session consumed about two hours.
Prior to commencing bargaining, the Union, including presi-
dent Silva, Alcoff, organizers Norman DeGeneste and Henry
Rose met with an employee committee consisting of about 20
workers. This meeting took about one hour. It was a conten-
tious session with Alcoff explaining that the Respondent had
not been paying its contributions to the Benefit Fund for nearly
one year and was $350,000 in arrears, and that if no payments
were made their benefits would be canceled by the Fund.3 The
employees responded that the Employer told them that the Un-
ion was lying and that it was current in its payments. The work-
ers told Alcoff that they had not received a wage raise since
2003 and also wanted more paid holidays, vacation days, sick
days, pension, daily overtime and a shift differential.
The employees also claimed to be owed a wage raise due to
a wage reopener in 2004 that was the subject of a pending un-
fair labor practice proceeding.4 The employees believed that
they were entitled to a 4% wage increase pursuant to the re-
opener. The Respondent argues and I agree that there is no
evidence as to the amount of any wage increase due pursuant to
the reopener.
The employees voted to present a “package proposal” to the
Respondent in which the Union would abandon the 2004 wage
increase if the Employer would accept the package. Accord-
ingly, the Union submitted a proposal which provided for wage
increases of 3% effective August 1, 2005; 2.5% effective Au-
gust 1, 2006; 2% effective March 1, 2007; 2.5% effective Au-
gust 1, 2007; and 2% effective March 1, 2008. Thus, the Un-
ion’s proposal sought an increase of 12% over the life of the
contract, as compared to 16% in the proposal made on July 7.
The proposal also provided for a shift differential of 50 cents
per hour for the second shift and 80 cents per hour for the night
shift. The Union sought to have the differential applied to all
employees, whereas the expired contract stated that it applied
only to employees hired on or before December, 2001.

3 Alcoff obtained this information from Timothy Wells, the Benefit
Fund administrator.
4 The expired contract contained a “contract reopener” provision
pursuant to which the parties agreed to meet no later than March 1,
2004 to negotiate wages and benefits for the last year of the contract,
with such wages and benefits being effective April 1, 2004. However,
no wage increase was agreed to. See Pavilion at Forrestal Nursing &
Rehabilitation, 346 NLRB 458 (2006).
Joanne Plummer, a former employee of the Respondent who
left her job in 2004 but nevertheless attended most bargaining
sessions in 2005 as a current Union member, testified about this
session. She stated that the employees and Union committee
members insisted that they were due a 4% raise pursuant to the
contract reopener in the prior contract, and they understood that
the raise would be given prior to the effective date of the new
contract. Plummer stated that Alcoff and Silva sought to forego
the 4% raise and just ask for 3%. In fact, as testified by Alcoff,
the Union’s demand for an 8% wage increase made at the July
7 session was intended to include the 2004 “make-whole” in-
crease which was supposed to have been renegotiated pursuant
to the reopener clause in the prior contract.
Plummer first testified that Alcoff explained that he took the
4% raise “off the table” because the Union wanted all its con-
tracts to be the same—to follow the same “format”—all of the
contracts were supposed to have the same provisions and end at
the same time so that they could be renegotiated together. She
then stated that as part of the 3% proposal, the Union asked for
a package including an increase in starting rates, parity in-
creases and more holidays which Jasinski rejected.
In this respect, the proposal did not increase the wage rate of
the certified nurses aides (CNA), the licensed practical nurses
(LPN), or maintenance/unit clerks for the life of the three year
contract because the rates those employees were then receiving
were “competitive.” The only rates that were raised over the
life of the contract was the Grade 1 housekeep-
ing/dietary/laundry workers where they were raised, in the first
year, from their current wage of $8.25 to 8.73.
The Union’s proposal also provided that the Respondent
make contributions to the Benefit Fund at the rate of 22.33% of
gross payroll, but if the trustees, in their discretion, determine
that contributions in excess of 22.33% are needed, the parties
can meet to propose plan revisions to keep the rates at 22.33%
or modify other parts of the economic costs of the contract so
that the full percentage required by the Trustees is maintained.
If the parties cannot agree on plan revisions to maintain the rate
at 22.33%, the dispute shall be submitted to arbitration with
Martin Scheinman, but “in no event shall the contribution re-
quirement of the Employer exceed 22.33% of gross payroll …
except by mutual agreement.” The contract further provides
that if the trustees determine that the Benefit Fund will no
longer cover the employees, the parties “shall promptly meet to
negotiate acceptable replacement coverage.”
The Union’s proposal provided for two additional paid holi-
days, one paid sick day per year, increased vacation entitle-
ment, overtime pay after 37½ hours, ½% of gross payroll for
the Training and Education Fund, and ½% for the Alliance
Fund. The Legal Fund proposal was deleted “based on agree-
ment on the Benefit Fund.” Alcoff stated that the Respondent
had not been paying its Pension Fund contributions, and he
offered to waive the prior payments if it would begin paying
into the Pension Fund at a rate of 2% of gross payroll effective
January, 2006.
Jasinski testified that he told Alcoff that the Union’s pro-
posal represented a “dramatic raise” in the economic obligation
of an Employer which had “serious financial problems.” Al-
coff’s response was that the employees had not received an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD550
increase in recent years. Jasinski replied that he offered a 3%
raise effective August 1, 2005 which was rejected by Alcoff.
Jasinski also quoted Alcoff as saying during the negotiations
that he could not deviate from the terms of the Tuchman master
agreement because the most-favored-nations clause in that con-
tract prohibited the Union from giving the Respondent more
favorable provisions because such terms would have to be ap-
plied to every signatory of the contract. In this regard, Alcoff
testified that the most-favored-nations clause was not new at
the time of this negotiation. It existed in prior contracts involv-
ing New Jersey facilities. He stated that a violation of that
clause is hard to prove because of variations in each facility: the
employees’ hours of work, the number of employees employed,
varying benefit levels, turnover rates, and because more than
one employer would be required to release proprietary informa-
tion for comparative purposes which they would be reluctant to
do.
Alcoff stated, moreover, that nursing homes such as Canter-
bury, Buckingham and Windsor Gardens,5 which had contracts
with the Union, and other nursing homes whose contracts were
negotiated in 2005, such as Southern Ocean Nursing Home,
Voorhees Nursing Home, Marcella Nursing Home, Meridian
Nursing Center, Westfield Nursing Center, and Wellington Hall
were not covered by the Benefit Fund.
Jasinski also testified that at each bargaining session, includ-
ing this one, he (Jasinski) requested that a mediator be engaged
to help the parties reach agreement. Alcoff responded that a
mediator was not necessary, and that he did not like and did not
want a mediator, and refused the assistance of a mediator.
Jasinski conceded that he did not make reference in any of the
numerous letters he wrote about Alcoff’s alleged bad faith bar-
gaining to the fact that he refused to have a mediator present.
Alcoff testified that he did not believe that Jasinski requested
that a mediator be present at negotiations. He stated that he may
have told Jasinski that he was occasionally not impressed with
the roles mediators play but he denied saying that the objected
to a mediator’s presence, particularly since he requested a me-
diator, in writing, on several occasions during the bargaining.
Alcoff stated that at this session the Union agreed to nearly
all of the Employer’s grievance and arbitration proposals. No
other agreement was reached on any other terms of the propos-
als. As will be set forth below, Jasinski testified that Alcoff
claimed that the Respondent had no right to implement the
Baylor Incentive Program. Jasinski responded that both parties
agreed to it one year earlier.
f. The bargaining session of August 17, 2005
This session consumed about two hours. Prior to meeting
with the Respondent, Alcoff and Silva met with the employee
committee, more than 10 of whom no longer agreed with the
Union’s package presented at the last meeting and wanted the
2004 “make-whole” raise.
At the session, the Union presented a Benefit Fund auditor
who confirmed that the Respondent was $350,000 in arrears in
payments to the Fund. The Employer admitted owing that sum.

5 Windsor Gardens’ nine housekeepers were covered by the Fund,
but not the rest of that facility’s 140 employees.
The Employer gave the Union a summary chart which stated
that it was operating at a deficit. Alcoff responded that the Em-
ployer could not claim financial distress because it had not
given a wage increase in two years, it had not paid its contrac-
tual contributions for health benefits and pension, and had not
remitted Union dues payments it received from its employees.
A side issue was raised whereby Alcoff claimed that the Re-
spondent was required to make contributions to the Benefit
Fund for any employee working three months or more. Jasinski
argued that the Fund covers employees working more than six
months pursuant to a signed memorandum of agreement. This
issue was not resolved.
Jasinski proposed a wage increase of 3% to be effective Au-
gust 1.6 The Union rejected that offer and instead wanted a
response from the Employer on the Union’s entire package.
g. Events in mid-August
On August 19, the Union sent a 10-day notice of strike, pick-
eting or other concerted refusal to work which was scheduled
for August 30.
Administrator Pilek sent a letter to employees and family
members of the residents dated August 24 which stated that the
Employer had received a notice from the Union that it intended
to engage in a job action beginning August 30 and that the Em-
ployer had taken steps to ensure that the residents were taken
care of. The letter stated that the Employer did “everything it
could to avoid this action” including meeting with the Union
and proposing a new contract which included wage increases
totaling 12%, contributions of 16% to the Benefit Fund, paid
vacation, holidays and sick days, but the Union “flatly rejected
our proposal. Instead, they are insisting that we agree to a con-
tract that was agreed to by other Employers who are in a differ-
ent situation than we are in.” Jasinski stated that the purpose of
the letter was to “calm” the family members as to the safety of
their relatives and to advise them of the Respondent’s position
in the bargaining.
The letter came as a surprise to Alcoff since the only Em-
ployer offer on the table at that time was a 7% increase over
three years (raises of 3%, 2%, and 2%). In addition, the Union
had not received any Employer proposal for additional vaca-
tion, holiday or sick days, and therefore could not have rejected
such an offer as the letter claimed.
h. The bargaining session of August 25, 2005
Alcoff asked Jasinski if he was aware of Pilek’s August 24
letter. Jasinski replied that he was, and Alcoff said that he had
never received such a proposal. Jasinski said “you will” and
then orally offered a 12% wage raise over four years. Jasinski
then rejected the Union’s package offer made at the August 12
session. In this connection, Jasinski stated that the Employer’s
July 7 proposal arguably represented a 12% raise, but conceded
that an express 12% raise had not been made prior to this ses-
sion.

6 Alcoff believes that the Employer’s proposal to implement the
wage raise was made at this meeting but it may have been made at a
later session.
PAVILIONS AT FORRESTAL & PRINCETON HEALTHCARE

551
Alcoff then presented a written offer which modified the Un-
ion’s wage offer. It demanded a wage increase of 7% in the first
year instead of 3% as in its prior proposal. This was an effort to
recoup some of the “make-whole” raise that was not given.
Alcoff stated that even though he had stated in the prior session
that he would forego the 2004 raise, this proposal demanded a
7% raise. Alcoff’s reasoning was that the prior proposal was
conditioned on the Respondent accepting the Union’s package,
and once that package was rejected, it was off the table, and the
Union sought to obtain its “make-whole” raise. In addition to
the 7% first year raise, the proposal asked for increases in sub-
sequent years, for a total of a 16% wage increase. The proposal
also reduced the amount of parity raises to 11 cents per hour
from 21 to 23 cents.
Alcoff conceded that this proposal was more costly to the
Employer than the Union’s earlier offer made on August 12.
Upon seeing this new offer in which the first year raise was
increased from 3% to 7%, Jasinski “exploded” and accused the
Union of bad faith and regressive bargaining. Jasinski testified
that he told Alcoff that he believed that the Union had no inten-
tion of bargaining in good faith and left the room with his
committee.
Alcoff met with the employee committee and then asked
Jasinski to return, telling him that although the Union’s pack-
age was rejected the Union wanted to move the bargaining
forward and accordingly orally modified its current proposal, as
follows: Seven holidays, with time and one-half only for
Christmas Day, New Years Day and Thanksgiving Day; the
vacation days offer was modified; the sick day proposal was
modified by moving it to the third year of the contract; contri-
butions to the Training and Education Fund and to Alliance
would be postponed for five months, until January 1, 2006;
contributions to the Pension Fund would be reduced from 2%
(27 cents per hour) to 15 cents per hour; the overtime provision
was withdrawn.
Jasinski testified that during his caucus he and Pilek decided
to present their last offer. He told Alcoff that the following was
his “final, last and best offer.” Jasinski agreed to a three year
contract and stated that he “adopted” the Union’s wage pro-
posal previously made at the August 12 session of 3%, 2.5%,
2%, 2.5%, and 2% to be in effect on the dates proposed by the
Union at that session, and also offered a merit pay base increase
which the Employer previously made at the July 7 session. The
Respondent agreed to contribute 16% of payroll to the Benefit
Fund, but did not agree to the parity raises demanded by the
Union.
Jasinski stated that after making this final offer, Alcoff made
no counter-offer and the meeting ended with no dates for a new
meeting set. With the Union’s job action set for August 30,
Jasinski testified that Alcoff used the strike threat as a “club”
and told him several times during this session that the Union
would strike because the Employer was not “towing the line”
and not “coming in under the terms that he wanted.” Alcoff
denied that the Employer made a “final offer” at this session or
at any other bargaining session.
Former employee Plummer testified that when she protested
to Alcoff about the absence of the 4% raise in the Union’s of-
fer, he said that he had already agreed with Jasinski about a 3%
raise, and he needed a reason to reopen the matter so he could
request the additional 4% raise that was due from 2004. He
allegedly told her that the reason he would give to reopen the
matter was that he did not agree to the Respondent’s proposal.
Plummer further stated that when Jasinski offered the 12%
raise, he said that it was his “final offer.” She said that the em-
ployees refused to accept that offer because the 4% raise which
was due them in 2004 was not added to the offer. She did not
recall if the Union made a counter offer that day.
Employee Jeanette Dieujuste testified that when Jasinski of-
fered a raise of 3%, Alcoff attempted to have the 2004 4% raise
added to that offer. At that time, Jasinski became “upset” be-
cause Alcoff had withdrawn his demand for the 4% raise and
now wanted to put it back. Jasinski said that he had just made
his “final offer.”
Plummer further stated that later on in that session or in the
next bargaining meeting, the Union made an offer of a 4%
raise. She stated that the meeting was occasioned by “much
disrespect” between Alcoff and Jasinski. She recalled that pro-
posals were exchanged at that meeting but did not know their
content. However, none of the proposals were acceptable to
either side.
i. Events from August to November
The employees and the Union decided to engage in informa-
tional picketing and not a strike on August 30. Notice to this
effect was sent by the Union on August 29 as a “follow-up” to
its letter of August 19.
The August 30 letter to Jasinski set forth the Union’s pro-
posal and the “substantial modifications proposed” in material
part, as follows:
 Article 8 – Grievance-Arbitration: Reduce the
number of days to file a grievance to 14. The ex-
pired contract required that a grievance be filed
within 10 days. The Union’s August 12 proposal
increased the number of days to 30.
 Wages – Modify the Union’s August 12 proposal
by adding a 4% increase for employees hired on or
before April 1, 2004 (reduces impact of parity raise
and only applies to about 60% of workforce).
 Shift Differential – Union withdraws proposal to
apply shift differential to employees hired after
December 5, 2001.
 Health Insurance – No change in current Union
proposal – 22.33%.
 Holidays – Modify Union’s proposal by reducing
the number of proposed premium holidays from 7
to 3 (Thanksgiving, Christmas, New Year’s).
 Vacation – Union modifies proposal by withdraw-
ing vacation improvements for any employee with
less than 10 years of service; effective 1/1/08, add
4 weeks of vacation after 10 years of service.
 Sick Leave – Union modifies proposal by adding
three sick days effective 1/1/07 rather than adding
one in each year of the contract.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD552
 Training and Alliance Funds – modifies the pro-
posal by moving effective date from 8/1/05 to
1/1/06.
 Overtime – Union withdraws proposal to add daily
overtime.
 Pension Fund – Union modifies proposal by reduc-
ing from 2% on 1/1/06 to $.014 per hour. Increase
to 2.5% effective 3/1/08.
 Union rejects all other Employer proposals.
Alcoff’s letter asked Jasinski to contact the Union regarding
available dates for bargaining, and closed with the following
statement: “We maintain that our August 12 economic proposal
reflected a conditional withdrawal of the 2004 raise subject to
an agreement on the whole package. I therefore presented a
proposal to you on August 25 that preserved our right to nego-
tiate over the 2004 re-opener but that reflected a substantial
reduction in the cost of the total economic package in the 2005
successor agreement we have been trying to negotiate with
you.”
On September 6, John Pilek, the Respondent’s administrator
made a payment to the Benefit fund in the amount of $240,100
for the period December 1, 2003 to June 30, 2005.
A petition dated September 7 containing 30 employee signa-
tures stated that the signatories no longer wanted to be repre-
sented by the Union and were voting the Union “out” of the
Employer. Alcoff denied seeing the petition or having any
knowledge of it.
On September 30, Alcoff sent a letter to Jasinski stating that
the Union was available for negotiations on October 6, 7, 12
and the week of October 17 through 21. In addition, he re-
quested that a mediator be present. Alcoff testified that Jasinski
did not respond to the request for a mediator and did not agree
to any of the eight dates suggested although Alcoff was in con-
tact with Jasinski’s office in an effort to arrange dates for nego-
tiations. Jasinski could not recall receiving this letter which,
unlike other letters sent by the Union, was unsigned and not on
the Union’s letterhead.
At hearing, Jasinski testified that he heard that Alcoff told
Pilek that he (Jasinski) was the “problem” in achieving a con-
tract. According to Jasinski, Alcoff told Pilek, who did not
testify, that he did not want to negotiate with Jasinski and that if
the Employer removed Jasinski a contract could be reached.
In response, on October 4, Jasinski wrote to Alcoff accusing
him of contacting the facility and its representatives “in an
attempt to negotiate this contract” and telling Pilek that he did
not want to negotiate with Jasinski. The letter noted that such
conduct constitutes an unfair labor practice and demonstrates
the union’s bad faith bargaining and intent not to reach an
agreement. The letter also stated that Alcoff “continued to force
upon the employer an industry-wide contract which was agreed
to by other employers” and has made no “substantive changes
to address the needs of this facility and its employees.” The
letter further stated that after the Respondent rejected the Un-
ion’s proposal Alcoff modified it by increasing the cost of the
contract to the Respondent. The letter also stated that Alcoff’s
proposed eight dates for bargaining “conflict with matters
which cannot be rescheduled” and offered to meet during the
week of October 25.
Alcoff replied by letter of October 10 stating that the Union
made “numerous accommodations to the specific conditions
faced” by the Respondent. He conceded that the Union’s cur-
rent proposal set forth in his letter of August 30 “while perhaps
more costly than your current proposal is not regressive from
our prior proposal.” Alcoff also admitted asking an official of
Hospicomm which owns the Delaire Nursing Home why he
(Alcoff) was able to reach a new contract after “smooth” bar-
gaining where Jasinski was not the negotiator, but is having
“incredible difficulties” reaching agreement with the Respon-
dent. He may have said that the only difference in negotiating
the two contracts was Jasinski. Alcoff stated that he told the
official to inform the Respondent that the Union wanted to
achieve a contract. Alcoff testified that the Union did not pro-
pose an “industry-wide” contact. The letter added that the Un-
ion was available for negotiations on October 26, 27 and 28 and
asked Jasinski to reply as soon as possible. Alcoff concluded by
saying that he would contact “the mediator” and request his
presence at the negotiations.
Alcoff testified that he called Jasinski’s office which in-
formed him that Jasinski was not available on those dates. A
bargaining session was scheduled for November 3. Jasinski
cancelled that session because his office said that he was not
available, but according to Alcoff, Jasinski actually bargained
with him that day at another facility. Accordingly, Jasinski was
available to bargain that day, but not for the Respondent.
Thereafter, Alcoff wrote a flyer stating that the Union won a
fair contract “that meets the Union standard in the state” at
Delaire Nursing Home. It outlined the features of the Delaire
contract which included a wage raise of 12% over three years
and a Benefit Fund contribution of 22.33%. Alcoff stated that
the 22.33% rate was “part of the standards and the pattern of
bargaining and the goals that we had in 2005” although not all
employers participated in the Benefit Fund.
On November 14, Alcoff wrote to Jasinski stating that in ad-
dition to his letters of August 30, September 30 and October 10,
he spoke to Concetta from Jasinski’s office many times request-
ing negotiations, adding that Jasinski had not provided any
dates for bargaining although Jasinski had offered November 3
but then Jasinski canceled that session. Alcoff wrote that the
Union was available on November 21-23, 28 and 29, December
1-2, 6-8, 9, and 13-16, and that he had given the New Jersey
Board of Mediation more than 20 possible dates that he is avail-
able through late December.
Jasinski replied on November 16, agreeing to meet on No-
vember 29 and December 2. On November 21, Alcoff re-
sponded, agreeing to meet on both dates.
On November 23, Alcoff wrote to Jasinski stating that ad-
ministrator Pilek informed Union agent DeGeneste that there
had been or will be a change in either the ownership or opera-
tors of the Respondent. Alcoff asked for information concern-
ing the alleged change. No information was provided.
j. The bargaining session of November 29, 2005
The parties met on November 29 for about 1½ hours. Prior to
the bargaining, Alcoff became aware of a memo distributed to
PAVILIONS AT FORRESTAL & PRINCETON HEALTHCARE

553
employees which stated that “due to the change of ownership,
direct [deposit] will be suspended for the pay date of December
2…. This will be your last paycheck issued by the current
owner.” Alcoff asked Jasinski about the memo and Jasinski
replied that it was an error – that there had been no change in
payroll or direct deposit. Jasinski further told him that he had
no knowledge of any change in ownership of the Respondent.
Alcoff testified that he was reluctant to present a new pro-
posal until he obtained clarification concerning whether there
was a new owner or operator, and whether it intended to change
the workers’ terms and conditions of employment. Alcoff asked
Jasinski about the new owners. Jasinski replied that Hospi-
comm is his client and he was prepared to bargain for Hospi-
comm. Jasinski asked if the Union would present a proposal.
Alcoff said that he would defer presenting a proposal until their
scheduled session on December 2 at which time he expected
Jasinski to report as to the alleged change in ownership or op-
eration of the facility. Jasinski asked Alcoff to put in writing
any questions he had about the ownership of the facility. Alcoff
said that the Union was prepared to modify its proposal at the
December 2 meeting. At the meeting, Alcoff asked Jasinski to
execute a memorandum of understanding to extend the term of
the expired contract and Jasinski rejected that proposal.
Jasinski testified that Alcoff did not respond to his proposal
made on August 25, rather he was only concerned with the
“rumor” that the Respondent was being sold and wanted assur-
ances that Jasinski was authorized to represent the Employer.
Jasinski denied that Alcoff asked that the expired contract be
extended.
Following the meeting, Alcoff wrote to Jasinski asking for
the identities of the current owners, the buyer, whether Jasinski
had the authority to bargain on behalf of the current owners or
buyer, the contemplated changes in terms and conditions of
employment, and also asked for an assurance that any agree-
ment reached prior to the sale would continue in full force after
the sale. Alcoff asked Jasinski to present the answers to these
questions at the December 2 session.
On November 30, Jasinski replied, stating that he had pre-
sented the Employer’s “final offer several months earlier.” He
accused Alcoff of engaging in “reckless bargaining by increas-
ing the previous proposal never intending to reach a contract”
while at the same time the Respondent made proposals which
included wage raises, health benefits, and paid time off. Jasin-
ski stated that he was authorized to represent the Employer, and
called the Union’s offer to extend the contract a “silly trick.”
Jasinski further stated that the Union’s questions concerning
ownership of the facility “have no bearing on the contract nego-
tiations since the names of the owners is irrelevant to the terms
of a collective bargaining agreement.” Jasinski concluded by
stating that the Union has engaged in bad faith bargaining and
that unless the Union makes a “meaningful contract proposal
we see no purpose in meeting [on December 2]. Please propose
other dates.” At hearing, Jasinski explained that last sentence
by stating that at their last session on November 29, Alcoff did
not address the Employer’s proposal.
Alcoff testified that Jasinski’s use of the term “final offer” in
the letter of November 30 was his first use of that term. He had
not previously called the Respondent’s proposal of August 25 a
“final offer.” Alcoff termed the bargaining “complicated” be-
cause of the employees’ “high expectations” and demands
which included the 2004 make-whole wage raise, and the issue
of unpaid health insurance contributions, but he denied that the
Union did not seek a contract. He stated that the Union sought
to bargain and reach agreement and in fact had asked for a me-
diator to attend the sessions.
Apparently also complicating the bargaining was a hostile,
divisive campaign for Union president which was going on at
this time. Alcoff testified that shortly after the November 29
session, Odette Machado, an area director of the Union who
had negotiated a reopener agreement with the Respondent in
2003, attended a meeting with Alcoff and the employees.
Machado was a candidate for the presidency of the Union
against incumbent Milly Silva who Alcoff supported. Many of
the Respondent’s employees, including Plummer who was her
campaign chairman, supported Machado and much campaign-
ing took place at the Respondent’s facility. The purpose of the
meeting was to calm the polarized work force and concentrate
the Union’s efforts on obtaining a contract.
Alcoff described a scene of “hostility” toward him and Silva
with accusations that they conspired with the Respondent or
among themselves in stealing money from the Union. The em-
ployees remarked that they wanted a contract but wanted Alcoff
and Silva to be replaced as the negotiators and that the Union
should appoint an attorney as its negotiator.
k. The events in December and January
On December 22, Jasinski wrote to Machado, an official of
the Union, that at the last bargaining session the Union refused
to respond to the Employer’s last offer and has continued to
insist that it agree to a collective-bargaining agreement “dic-
tated by the Union” which does not reflect the “wants and
needs” of the facility’s employees as a condition of providing
health care benefits to the workers. The letter claimed that the
Union “aborted” the last session and has not scheduled any
future meetings. Finally, the letter noted the communication
received from Benefit Fund Administrator Timothy Wells on
that day, described below, which, according to Jasinski, repre-
sented a “continued pattern and practice of bad faith bargain-
ing.” Machado testified that she did not respond to the letter
since Alcoff was handling negotiations and it was his responsi-
bility to reply.
On December 28, Alcoff wrote to Jasinski, offering to meet
on January 4, 18, 19, 20, and the week of January 23, 2006.
Alcoff stated that he did not believe that Jasinski agreed to meet
on any of those dates.
A petition dated January 2, 2006, was prepared by employee
Jeanette Dieujuste who supported Machado in the Union elec-
tion for president. The petition, which bears the signatures of
72 employees, asked that Alcoff and Silva not represent them at
any future negotiations. The petition also stated that on No-
vember 30 and December 2, Alcoff misled the employees into
meeting for the ostensible purpose of discussing the contract
but instead discussed Silva’s candidacy for Union president.
Sometime prior to January 19, 2006, Alcoff asked adminis-
trator George Mervine, who replaced Pilek in January, 2006,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD554
whether Jasinski was still the chief negotiator. Mervine said
that he was and that he represents the successor employer.
3. The union requests bargaining dates and information
a. The January request
On January 19, 2006, Alcoff wrote to Jasinski offering to
meet on any and all dates in February, beginning on February 4.
Alcoff stated that none of the dates were accepted by Jasinski.
The letter also advised Jasinski that the Union was told by
the employees that a new health insurance plan was imple-
mented without notice to the Union. In his letter, Alcoff asked
the Respondent to meet with him to discuss the change, and
also asked for a copy of the summary plan description, total
premium costs, the costs to employees to obtain coverage under
the new plan, and the number of employees who are covered
under the new plan. Alcoff requested that information in order
to bargain over the issue of employee health plan coverage.
None of the information has been supplied.
On January 23 and 26, Jasinski wrote to Alcoff, asking him
to supply an arbitration award issued concerning the Benefit
Fund, and for a copy of the collective-bargaining agreement
between Genesis Healthcare and the Union. Alcoff later sup-
plied the documents requested. In one of the letters, Jasinski
stated that the Union had announced that it seeks “parity with
all other Healthcare facilities in New Jersey” and has “repeat-
edly stated that they cannot agree to any contract that deviates
from contracts covering other New Jersey employers.”
Alcoff denied that any Union representative made such
statements. However, Alcoff also stated that the Tuchman mas-
ter agreement covering 20 nursing homes and 2,000 employees
contains standard language concerning union security, griev-
ance and arbitration, etc., but for each facility it contains a “lo-
calized agreement” covering wages, vacations, holidays, sick
days, personal days, health insurance eligibility, etc. He noted
that all the signatories are party to the Benefit Fund and all
contribute at the same rate but there are certain variations re-
garding eligibility for the Fund. Alcoff further noted that one of
the Tuchman facilities does not participate in the Benefit Fund.
He further noted that he took language from the Tuchman con-
tract and used it in his proposals with the Respondent. He con-
ceded that the schedule of wage raises in the Union’s proposal
presented on August 12, 2005 is identical to that in the
Tuchman contract.
Alcoff testified that certain contracts negotiated in 2005 and
2006 did not provide for contributions to the Benefit Fund,
including seven nursing homes owned by Genesis Health Care.7
Further, one nursing home, New Vista, which was included in
the Tuchman contract, is not a contributory to the Benefit Fund.
A petition dated January 30, 2006 prepared by employee
Dieujuste and signed by five “committee members” was
handed to Mervine, and sent to the Union and to Board agent
Gonzalez. It states that the employees did not want Alcoff and
Silva to negotiate a contract for them because they did not trust
the two Union officials. Instead, the employees wanted a Union

7 Westfield, Southern Ocean, Vorhees, Marcella, Park Place, Cran-
berry, Gateway.
attorney to conduct the negotiations. The letter directed
Mervine not to schedule any negotiations with the Union until a
Union lawyer agreed to negotiate.
On February 17, 2006, Jasinski wrote to Alcoff reminding
him that about one month earlier he had requested an arbitra-
tion award and the “Genesis” collective-bargaining agreement
and that neither had been provided. Jasinski also wrote that he
had become aware of the petitions signed by employees regard-
ing Alcoff and Silva and wanted an assurance that Alcoff repre-
sented the employees and was authorized to negotiate a con-
tract. Jasinski asked for written authorization from a majority of
the Employer’s employees that they wanted Alcoff to represent
them in negotiations.
b. Later requests for information and bargaining dates
On March 8, 2006, Alcoff wrote Jasinski that “you have pro-
vided no information that we have requested … on a repeated
basis nor have you found the time to schedule bargaining at
Pavilion….”
On April 11, Jasinski wrote for more information concerning
the arbitration award and the Genesis contract that Alcoff had
previously sent to him. He requested other contracts and certain
financial information concerning the Benefit Fund. Jasinski
further wrote that the Respondent received an employee peti-
tion stating that they did not want Alcoff to represent them in
bargaining, demanding that a Union attorney represent them at
negotiations, and asking that no negotiations be scheduled until
a Union attorney was assigned to negotiate. Jasinski asked for
evidence demonstrating that Alcoff had been designated as the
employees’ representative as no reply had been made to his
February 17 letter asking for the same assurance. Jasinski con-
cluded by asking to meet with the Union in late April or early
May “provided you represent the employees.”
On May 10, Jasinski wrote, again asking for confirmation
that Alcoff represented the employees and stating that he had
no objection to meeting with Alcoff or any other representative
designated by the Union.
Alcoff stated that he was aware of the employee petitions
and attributed them to the internal Union political campaign
then ongoing. On May 15, Alcoff replied to Jasinski’s April 11
and May 10 letters, stating that he was not certain why Jasinski
sought information about the Benefit Fund since it was the
Respondent’s position that it would not participate in the Fund
unless it could do so at a rate of no more than 16% which “falls
far short of the 22.33% rate the Fund requires.” In addition,
Alcoff supplied the answers, as best he knew, to the questions
posed by Jasinski, adding that no other facility adopted the
terms of the Genesis contract.
Alcoff concluded by saying that he was appointed by presi-
dent Silva to negotiate the contract, and was available to meet
on all days between June 5 and 15. He added that Jasinski’s
“continued failure to schedule bargaining dates constitutes bad
faith bargaining.”
On May 20, Jasinski replied, saying that Alcoff’s responses
to his information requests were incomplete. He agreed to meet
with Alcoff on June 12. Alcoff accepted that date and reminded
Jasinski that he had “ignored all information requests regarding
the health insurance benefits, other unilateral changes and up-
PAVILIONS AT FORRESTAL & PRINCETON HEALTHCARE

555
dated employee information and asked that he be given that
data by June 9.
Alcoff canceled the June 12 session—the first time the Un-
ion had canceled a bargaining session. His reason was that the
counting of ballots in the internal union election campaign was
scheduled for June 12 and he could not focus his energy on the
negotiations.8 Additional reasons were that the Respondent
wanted the names of the employees who would be attending the
meeting and Alcoff’s organizer at the facility was Machado,
Silva’s opponent, who was not answering his calls for the
names of the employees who would be present. Alcoff stated
that if an employee bargaining committee would be present he
would have attended the bargaining.9
On June 12, Jasinski wrote to the Board’s Regional Office
asserting that Alcoff and the Union have “repeatedly refused to
meet and bargain….,” citing the cancellation of that day’s
meeting, and asking that the instant charges be dismissed.
On June 20, Alcoff wrote to Jasinski that he was available to
bargain on all dates from July 10 through the end of July. Al-
coff testified that none of those dates were accepted by Jasinski.
The letter asked essentially for an updated list of all unit em-
ployees by job classification, including their name, address,
social security number, job title, date of hire, wage rate, shift,
etc., since January 1, 2006; copies of correspondence to em-
ployees since December 1, 2005 regarding terms and conditions
of employment; copies of personnel policies or the employee
handbook that was changed since December 1, 2005; summary
plan descriptions of insurance plans offered to employees; cost
to the employer and the employees of insurance plans; gross
bargaining unit payroll from January 1, 2006 through May 31,
2006; and a summary of the policies and benefits offered to the
“Baylor Nurses.”
Alcoff testified that this was the first time he requested cop-
ies of correspondence and copies of personnel policies, hand-
book and payroll, and he sought the information for the periods
set forth because the new owner purchased the facility in No-
vember, 2005. His further reasons for seeking the data were
that he heard from employees that there were changes in their
terms and conditions of employment including their dates of
hire and their accruals of paid time off. Alcoff asked for a reply
before July 1, and a response to all the Union’s information
requests by July 7.
On July 10, Jasinski wrote to Alcoff stating that it had re-
sponded to the Union’s prior information requests in good faith
and had been told by a prior Union agent that no further infor-
mation was needed. He asked that Alcoff contact him regarding
dates for bargaining. At hearing, Alcoff testified that the Re-
spondent provided some information in response to certain

8 The General Counsel sought an explanation from Alcoff as to why
he cancelled the June 12 meeting, but there is no evidence that he told
Alcoff, as inaccurately set forth in the Respondent’s brief, that his
cancellation of the session “could be a problem for him in prosecuting
the underlying unfair labor practice charges.” Tr. 386.
9 On February 2, the Regional Office dismissed a charge filed by an
employee which alleged that the Union violated its duty of fair repre-
sentation by campaigning for internal union elections instead of repre-
senting employees during contract negotiations.
requests but none of the information requested in his letter of
June 20.
On July 17, Alcoff wrote Jasinski that the Union was avail-
able to meet on July 26-28, 31, and August 1. The letter re-
peated the request for information set forth in the June 20 letter.
Alcoff testified that none of the dates set forth were agreed to
by Jasinski and he was not provided with the requested infor-
mation.
On October 23, Jasinski wrote to Alcoff stating that the Re-
spondent presented its “last best offer” to the Union at their last
bargaining session in November, 2005. The letter noted that
“early in these negotiations the Employer provided the Union
with all of the documents responsive to its information re-
quests” but that at the last session the Union asked for more
information—that which has already been provided. Jasinski
further stated that the Union had an “unyielding bargaining
position” due to the most-favored-nations clause negotiated
with other employers. Jasinski further stated that the Union has
not adequately addressed the fact of the employee petition
which stated that the workers did not want Alcoff to represent
them in bargaining. Finally, Jasinski stated that the parties are
at “impasse” but he was willing to attend further bargaining
sessions.
On November 13, 2006, Alcoff wrote, denying that Jasinski
made a last, best offer on November 29, 2005. He stated that at
that meeting one year earlier, the Respondent did not present a
comprehensive proposal, but they discussed the open issues and
said that the Union would have a counteroffer at the next ses-
sion scheduled for December 2. Alcoff also disputed that the
parties were at impasse. Alcoff advised Jasinski that his re-
quests for information were justified because he learned that
there were changes in employee terms and conditions of em-
ployment imposed by the new owners. The letter noted that he
had requested such data in January, 2006, and that in May and
June, 2006 he requested an updated list of employees and their
terms because the last time he received such information was
one year earlier prior to the change in ownershp. He further
noted that none of that information was provided. The letter
further stated that he was properly designated as the Union’s
chief spokesperson, and that “the discontent over the lack of
progress in these negotiations, shared by the Union as well as
employees, is a result of your continued unfair labor practices.”
Finally, Alcoff stated that the Union has stated that “we are
open to considering health benefits other than those provided
through the [Benefit Fund] because of your steadfast refusal to
participate in the [Fund] under the conditions set by the Fund.”
Alcoff concluded that he was available to meet during the
weeks of December 12 and 19 but that he needed the updated,
current information requested in his June 20, 2006 letter.
Jasinski testified, denying Alcoff’s version of the November
29 session. Specifically, Jasinski denied that open issues were
discussed at that time, and also denied that Alcoff announced
that he would make a counteroffer at the December 2 meeting.
Jasinski stated that the only topic of discussion on November
29 was Alcoff’s questions concerning the sale of the facility.
According to Alcoff, Jasinski did not agree to meet during
the two weeks proposed by Alcoff, and no information was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD556
provided. Indeed, there was no evidence that Jasinski replied to
Alcoff’s letter of November 13.
Jasinski wrote to Alcoff on December 27, noting that at the
last session one year earlier he presented a “final offer” while
the Union did not present any counter offers. He accused the
Union of stalling and delaying negotiations with no intention to
reach agreement unless it was the “standard contact established
by the Union.” Jasinski offered to meet with the Union during
the weeks of January 2 or 8, 2007. The letter also noted that
that the Union, at the direction of the Benefit Fund, terminated
the health plan for employees and that the Fund unilaterally
changed the healthcare provider and decreased benefits. Jasin-
ski stated that such action forced the Respondent to protect its
workers.
Alcoff replied to Jasinski’s letter on January 9, explaining
that he just returned from vacation. He denied that the Respon-
dent submitted a final offer at the last session in November,
2005 and asked that such an offer be provided in writing to
him. Alcoff again requested the information set forth in his
letter of June 20, noting that “you continue to ignore all infor-
mation requests made by the Union.” Alcoff wrote that he was
available to bargain during the week of January 29. He also
noted that the Benefit Fund and not the Union terminated the
health plan because the Respondent failed to make contribu-
tions thereto and was “several hundred thousands dollars in
arrears.”
On January 17, Jasinski replied, insisting that a final offer
was presented to Alcoff, and again asserting that the Union
terminated the Fund benefits “in retaliation for the Employer’s
unwillingness to agree to a contract with identical terms as the
Tuchman Master Agreement. You left the Employer with no
choice but to offer alternate healthcare coverage. We proposed
and implemented this plan to mitigate any losses and protect
our employees. You should be grateful to us.” Jasinski also
asserted that the Union engaged in a work stoppage. He said
that the “information” would be sent to him separately.
Alcoff replied on January 19, denying that the Union made a
contract with identical terms as the Tuchman contract a condi-
tion for settlement. He testified that the employees here had
various demands specific only to the Respondent. Alcoff fur-
ther stated that the Union did not terminate the Fund benefits,
but rather the Benefit Fund did so because the Employer was in
arrears in its payments.10 He asked for the information re-
quested from January, 2006.
Alcoff also denied that a work stoppage took place. Alcoff
asked for a written copy of the Employer’s alleged final offer,
denying that one was made. He testified that he did not receive
such a copy.
Jasinski testified that he “believed” that he sent the copy of
the final offer to Alcoff, perhaps sometime after January 19,
2007, but did not know when. No copy of the final offer or a
letter transmitting it was offered in evidence.

10 The Fund is managed by a Board of Trustees. One half of trustees
are designated by the Employers and one half are designated by the
Union.
C. The Alleged Unilateral Changes
1. The health insurance plan
The Benefit Fund terminated benefits for the Respondent’s
employees on December 1, 2005 because of a failure by the
Employer to make contributions to the Fund. On December 22,
Benefit Fund director Timothy Wells sent a letter to the Re-
spondent and the Union stating that if the parties reach agree-
ment on a new collective-bargaining agreement providing for
participation in the Benefit fund effective December 1, 2005,
and if the Employer presents reports of earnings for December,
2005, eligibility for health and welfare benefits through the
Benefit Fund would be effective retroactively to December 1,
2005.
On January 5, 2006, Machado sent an e-mail to Alcoff and
Silva, notifying them that on December 22, Respondent admin-
istrator Mervine told her that employees’ health benefits were
terminated by the Benefit Fund, and that the Union had not
contacted the “new management” to discuss wages, working
conditions and benefits for the employees, but nevertheless the
Employer wanted to ensure that the workers had health bene-
fits. Machado called Fund administrator Wells who confirmed
that benefits were terminated, but told her that if the Employer
contributed to the Fund effective December 1, 2005, benefits
would be reinstated. Machado called Silva and Alcoff to advise
them of these facts but her calls were not returned.
Alcoff did not reply to Machado, but asked Mervine, in mid-
January, about rumors he heard from employees of a new
health plan. Alcoff testified that Mervine told him that the Re-
spondent offered the workers the Health Net benefits plan.
Alcoff told him that they had to bargain concerning that and
that he was anxious to reach agreement. Mervine told him to
speak directly to Jasinski. Alcoff further testified that no one
from the Respondent notified him or the Union of the change
prior to its implementation, and the Employer did not offered to
bargain with the Union about such change.
The Respondent faults the Union for not providing for a plan
to replace the terminated Benefit Fund. Alcoff properly testified
that although he regretted that the Fund terminated the employ-
ees’ benefits, his role was not to provide a contingency plan if
the Respondent failed to make payments to the Benefit Fund
and benefits are stopped. Rather, his responsibility is to negoti-
ate a contract which includes health benefits.
2. The Baylor incentive program
The Baylor Incentive Program (BIP) is a vehicle used to
provide an incentive for licensed practical nurses to work on
the usually difficult to staff weekend shifts. Eight licensed prac-
tical nurses participate, constituting at least half the LPN work
force.11 They work virtually every weekend in 12 or 16 hour
shifts over two days, for which the nurse receives full-time pay
and full-time benefits. They typically work 32 hours per week
and are paid for 40 hours. Jasinski testified that the program

11 During the negotiations, the Respondent gave the Union a docu-
ment listing the names of the eight employees. They were hired be-
tween November, 2001 and February, 2005.
PAVILIONS AT FORRESTAL & PRINCETON HEALTHCARE

557
was discussed and agreed to by the Respondent and the Union
in about August, 2004.
According to Jasinski, at the August 12, 2005 bargaining
session, Alcoff objected to the fact that the Baylor nurses were
receiving higher rates of pay than other LPNs, noting that the
program and their rates were not provided for in the contract.
Jasinski allegedly replied that if Alcoff did not want the BIP,
the Respondent would eliminate it, but Alcoff objected to its
termination. Alcoff denied that that exchange took place.
On February 8, 2006, the Respondent’s Director of Nursing
sent a note addressed to “Baylor nurses” which stated that ef-
fective March 1 it would no longer be able to offer the BIP. The
letter asked the workers to speak to the staffing coordinator to
discuss other options available to them. Alcoff gave uncontra-
dicted testimony that the Union was not notified that the BIP
would be eliminated and no offer was made by the Respondent
to bargain with the Union concerning its elimination.
Apparently in response to being informed of that letter, on
February 16, Alcoff wrote to administrator Mervine requesting
bargaining concerning the Respondent’s “proposal to elimi-
nate” the BIP, reminding him that the Employer could not im-
plement a new policy until bargaining has taken place. Alcoff’s
reference to the Respondent’s “proposal” was not to any actual
proposal the Employer made to the Union to eliminate the BIP
since there was no evidence that the Respondent made such a
proposal and no bargaining sessions were conducted after No-
vember, 2005.
At hearing, it was stipulated that the Respondent eliminated
the BIP on or about March 1, 2006. However, the Respondent
disputes whether the Baylor nurses were part of the unit. In
addition, Jasinski testified that the BIP was not working – there
were too few nurses in the program to fill the schedules.
The BIP is not specifically referred to in the expired collec-
tive-bargaining agreement, but, according to Alcoff, it was the
practice of the Respondent to have such an arrangement for
certain nurses before and during their current negotiations.
Alcoff stated that the Respondent never proposed during nego-
tiations that the BIP be eliminated. However, according to Al-
coff, if the Baylor nurses were late to work they lost some of
their premium pay for that shift. Alcoff complained, in negotia-
tions, about that forfeiture.
3. Access by union agents to the facility
The expired collective-bargaining agreement provides in
relevant part:
Article 5—Visitation
A. Upon entering the facility, the Union Organizer or the Un-
ion’s designees shall notify the Administrator or his designee
of their presence in the building. The Union Organizer shall
have admission to all properties covered by this Agreement to
discharge their [sic] duties as representative of the Union pro-
vided it is done in non-work areas and on non-work time and
does not interfere with the operations of the facility.
D. The Union shall be permitted to conduct Union meetings
on the Employer’s premises provided such meeting is con-
ducted in Non-patient area and attended by employees during
non-work time. The Union must notify the Employer in ad-
vance and shall not interfere with the operations of the facil-
ity.
Alcoff testified that when he visited the Respondent’s prem-
ises to attend the four bargaining sessions from August 12
through November 29, 2005, he did not call in advance.
He also visited the premises an additional eight times during
that period of time. He stated that when he entered the facility
he announced himself at the reception desk and proceeded to
the break room where he spoke to the workers. He testified that
no advance permission or notification was required and he did
not give such notice.
Alcoff stated that in about February, 2006, after Atrium pur-
chased the facility, he entered the building and was stopped by
administrator Mervine who told him that the employees did not
want him in the building. Alcoff asked to speak to them any-
way. Mervine agreed and Alcoff met for one hour with the
workers.
Alcoff further stated that about one week before July 20,
2006, flyers were distributed to the workers and were posted in
the facility announcing a Union meeting in the break room on
July 20. The agenda included a review of the pending charges
and complaint, and the Union’s bargaining position. He entered
the break room without having given advance notice to the
Respondent that he would be visiting that day. Director of
Nursing Deborah Hicks approached and told him that he was
not permitted in the break room because he did not receive
permission to be present, adding that he had to give advance
notice. Alcoff protested that in the past no advance notice had
been given. Hicks called the police and Alcoff left before they
arrived. The police officer told Alcoff to leave. Alcoff re-
sponded that he wanted to deliver some literature. The officer
asked him to call an employee to come outside to receive them
and that was done.
Alcoff testified that in early August, 2006, he and Marvin
Hamilton, a Union representative were passing by the premises
and decided to try to speak to any employees who might be in
the break room. Alcoff did not have a meeting with employees
scheduled that day. They entered the building, announced
themselves at the front desk and went to the break room. Nurs-
ing Director Hicks entered and told Alcoff that he did not have
permission to be there, was not permitted on the premises and
that she would call the police. Alcoff left.
ANALYSIS AND DISCUSSION12
I. GENERAL PRINCIPLES
It is a violation of Section 8(a)(5) of the Act for an employer
to refuse to bargain collectively with the representatives of its
employees. Section 8(d) defines the obligation to bargain col-
lectively as the “mutual obligation of the employer and the
representative of the employees to meet at reasonable times and

12 The arguments made and the applicable law in Laurel Bay Health
& Rehabilitation Center, JD(NY)-26-07, decided by me, are similar to
those involved here. I have excerpted some of the language in that
decision but my analysis and findings as to the alleged violations here
are based solely on the facts in this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD558
confer in good faith with respect to wages, hours, and other
terms and conditions of employment.”
The Board has long held that “when, as here, parties are en-
gaged in negotiations [for a collective-bargaining agreement],
an employer’s obligation to refrain from unilateral changes
extends beyond the mere duty to give notice and an opportunity
to bargain; it encompasses a duty to refrain from implementa-
tion at all, unless and until an overall impasse has been reached
on bargaining for the agreement as a whole.” NLRB v. Katz,
369 U.S. 736 (1962); Pleasantville Nursing Home, 335 NLRB
961, 962 (2001), citing Bottom Line Enterprises, 302 NLRB
373 (1991). An employer violates Section 8(a)(5) and (1) of the
Act by implementing its final bargaining proposals without
reaching a bargaining impasse. Cotter & Co., 331 NLRB 787,
787–788 (2000). The Board has recognized two limited excep-
tions to this overall impasse rule: “when a union, in response to
an employer’s diligent and earnest efforts to engage in bargain-
ing, insists on continually avoiding or delaying bargaining, and
when economic exigencies compel prompt action.” Bottom
Line, above.
The Respondent argues that an impasse in bargaining was
reached.
II. WAS IMPASSE 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.
It is important to note that both lead cases, Taft and Hi-Way
Billboards, use the term “good faith” in defining the attitude
which parties must bring to the bargaining table. As set forth
below, and in considering all the facts in this case, I must con-
clude that the Respondent did not approach the bargaining in
good faith and thus did not meet that threshold requirement.
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.
A. The Factors
1. Bargaining History and the Length of the Negotiations
Regarding bargaining history, the Employer’s predecessor
Princeton and the Union’s predecessor have been parties to
successive collective-bargaining agreements for a number of
years during which time Jasinski represented the Respondent. A
contract extension agreement was executed during these nego-
tiations.
Regarding the length of negotiations, although eight bargain-
ing sessions were held, no bargaining of substance occurred
and no agreements on any material terms were reached at the
first three meetings, except that the Respondent agreed to cer-
tain minor changes in the language contained in the Union’s
proposed contract, such as a change in the Union’s address. The
parties presented their full economic proposals at the fourth
meeting on July 7 at which the Union withdrew its demand for
contributions to the Legal Fund and the Respondent agreed to
certain of the Union’s proposed discipline and discharge provi-
sions. The final four meetings produced no agreement other
than the Union’s agreement to the Employer’s grievance and
arbitration proposals.
2. Good faith
The parties’ good faith in negotiations has been subject to
question on both sides. The complaint alleges that the Respon-
dent’s bargaining has not been in good faith, and the Respon-
dent questions the Union’s good faith intent to reach agree-
ment. It raises several contentions in support of its argument
that the Union bargained in bad faith. The Union (a) appointed
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 (b)
stated that certain terms were not negotiable and maintained
fixed bargaining positions on important terms of the agreement
(c) made regressive offers and (d) ignored the fact that a major-
ity of the employees did not want Alcoff to represent them in
bargaining.
Machado, a former official of the Union, testified that prior
to the 2005 negotiations she was told by Alcoff that its strategy
would be to demand certain standards and not deviate from
them because of the most-favored-nations clause in the
Tuchman contract. She quoted Alcoff as saying that the Union
“could not settle a contract” unless the Benefit Fund standards,
among others, was met.
Alcoff denied Machado’s testimony and credibly testified,
without contradiction, that six other nursing homes whose con-
tracts were negotiated in 2005, were not covered by the Benefit
Fund. In this respect I cannot credit Jasinski who testified that
Alcoff stated during the negotiations that he could not deviate
from the terms of the Tuchman contract because the most-
favored-nations clause in that contract prohibited the Union
from giving the Respondent more favorable provisions.
Further, Machado’s testimony that Alcoff said that if the Un-
ion’s goals could not be achieved he would seek to “destroy”
the employers is suspect. Clearly, it would not be in the Un-
ion’s power or interest to eliminate a source of employment for
unit employees. In this respect, Machado is not credited. She
has ample reason to testify adversely to Alcoff and the Union.
She was a trusted Union official until she unsuccessfully ran
against incumbent president Silva and was then discharged. She
appealed the election results and was owed money by the Un-
ion. She claimed that the Union could not be trusted and
formed a rival union which filed a petition to represent the em-
PAVILIONS AT FORRESTAL & PRINCETON HEALTHCARE

559
ployees of the Respondent, accusing Silva and Alcoff of con-
ducting a fraudulent election and taking away employees’
health and legal benefits. Accordingly, it may be said that her
testimony was affected by her adverse interest to Alcoff and the
Union.
However, even if Machado’s testimony is credited, the Un-
ion’s alleged strategy, set forth prior to the beginning of the
negotiations was certainly subject to change as the bargaining
proceeded. Indeed, the Union’s witnesses credibly testified that
they began negotiations with certain “goals” in mind, which
they sought to achieve, if possible, but not to the point of insist-
ing, to impasse, on them.
Accordingly, even though the Union’s position remained es-
sentially the same on the issue of the Benefit Fund contribu-
tions until the last session on November 29, Alcoff expressed a
willingness to present another proposal at the next, December 2
meeting. Significantly, Alcoff offered, in November, 2006, to
consider health benefits other than those provided by the Bene-
fit Fund. Accordingly, the Union’s position may have changed.
Unfortunately, the parties did not meet after their final, No-
vember 29, 2005 meeting.
New circumstances, including the fact that there was a new
employer, Atrium, in the picture, may have been sufficient to
create some movement in the Union’s position. “An impasse is
easily overcome by any number of changed circumstances.
Thus, even assuming that a genuine impasse existed … the
union’s . . . letter advising Respondent that it had new propos-
als to submit and requesting resumed negotiations constituted
such a change, obliging respondent to return to the bargaining
table.” Beverly Farm Foundation, 323 NLRB 787, 793 (1997).
Here, Alcoff offered to present a new proposal at the December
2 session, later offered to consider a different health plan, and
offered to continue bargaining. In addition, during the course of
the bargaining, proposals and alternative proposals were pre-
sented by the Union regarding the Benefit Fund. This demon-
strates that the Union was not inflexible in its attitude toward
that issue. Alcoff’s good faith is also enhanced by his credited
testimony, supported by two written requests, that he sought a
mediator to assist in the negotiations.
Regarding wages, the Union’s first offer on July 7 was for a
16% increase over three years with an 8% raise in the first year
which included a purported 4% reopener increase. The Union’s
next demand, made on August 12, was for a total of 12% with a
3% first year increase. On August 25, the Union made a 16%
total demand with 7% in the first year. The Respondent terms
this course of conduct “regressive” and evidence of the Union’s
bad faith. However, it must be noted that the Union was repre-
senting an aggressive, vocal employee complement which was
also a dissident group seeking to undermine its representative
status. This group believed that it was entitled to a 4% reopener
increase as well as raises in the contract being negotiated. Un-
der these circumstances, the Union attempted to adjust its de-
mands to the desires of the workers. Thus, its initial first year
demand of 8% included the supposed 4% reopener raise. The
next demand removed the 4% raise and demanded only a 3%
raise in the first year if the Respondent accepted its “package”
proposal. When the Employer did not, the Union’s final de-
mand was for a 7% raise in the first year, however accompa-
nied by reducing its benefits demands for items such as holi-
days, vacation, sick day and contributions to other funds. In
addition, there was room for negotiation following the final
bargaining session on November 29 and the Union offered to
continue bargaining.
The Tuchman agreement provided for a total of 12% raises
in wages over the three year term of the contract, with a 3%
raise in the first year. The Union’s various offers as to wages
shows that its position on this term was not unalterably fixed to
the Tuchman contract. Rather, the Union sought to address the
employee’s concerns here as to their perceived entitlement to
the make-whole 4% increase while at the same time offering a
package without such an increase. Accordingly, the Union did
seek to address the needs of employees, as the Respondent
insisted it must do, rather than adhere to the wage provisions of
the Tuchman contract.
The Respondent further asserts that the Union’s bad faith is
demonstrated by its alleged rejection of employees’ concerns
and abandonment of them. Its answer to the complaint asserts
that the Union was “no longer the designated collective-
bargaining representative of the employees.” The Respondent
also argues that the Union displayed “contempt” for the em-
ployees because of their support for Machado in the internal
union election, by not consulting with unit members during
negotiations, trying to unilaterally replace the bargaining com-
mittee, and by the Union’s not sending ballots in the internal
union election to the unit employees.
It points to the three employee petitions dated September 7,
2005 in which 30 employees stated that they no longer wanted
to be represented by the Union and were voting the Union “out”
of the Employer. However, no decertification petition or em-
ployer’s petition was filed. On January 2 and 30, 2006, em-
ployees petitioned to have Alcoff removed from the negotia-
tions, asking that a Union lawyer be present at the bargaining.
These claims have no merit, and they are no defense to the
Employer’s refusal to bargain. The fact that employee petitions
were circulated in which they sought to remove Alcoff as the
chief bargaining representative is irrelevant to the issue of the
Union’s good faith. Alcoff explained that he was focused on his
obligation to bargain with the Employer and not on whether an
attorney should represent the Union. The Union remained the
recognized, exclusive bargaining representative of the employ-
ees. Alcoff was appointed by the Union’s president to represent
the interests of the workers during the negotiations. The evi-
dence demonstrates that a large employee contingent was pre-
sent at all the sessions, that Alcoff met with them prior to
commencing each bargaining session, and that during the
course of the bargaining Alcoff took into consideration their
opinions concerning the reopener wage increase and other sub-
jects up for discussion.
3. The importance of the issue preventing agreement
Regarding the most important term of the proposed agree-
ment and the term which represented the most controversy, the
Benefit Fund, the Union’s first proposal demanded a contribu-
tion in the amount of 21% of gross payroll with a cap of 24%.
Its second proposal, made on July 7, called for an increase of
22.33% with no written cap. This represented an increase of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD560
about $185,000 in contributions from the Employer’s current
payment of 13% of gross payroll.
The Union’s August 12 “package” offer demanded a pay-
ment of 22.33% which was capped at that rate. The Respondent
offered a 16% increase in the Benefit Fund.
The Act does not require a union to agree to an employer
demand, or that it modify its offers in any certain way. All that
is required is a good faith effort to reach agreement. The evi-
dence demonstrates that the Union modified its demand for
payments to the Benefit Fund during the course of negotiations,
although in a very minor fashion. That does not mean that the
Union would not deviate from the terms that it offered. There
were back and forth negotiations over these terms during the
bargaining sessions. Further meetings could result in further
discussions and a change in the Union’s position, and in fact it
offered to present a modified proposal at the December 2
scheduled session but the Respondent cancelled that meeting.
Further, it offered to consider a different health plan. However,
the Union was thwarted by the Respondent in its attempts to
arrange future bargaining sessions.
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). However, if impasse occurred, it
was broken when Alcoff offered to present another proposal at
the December 2 session. That session did not take place be-
cause Jasinski believed that it would not be productive.
In this regard, when considering the issue of good faith, it
must be emphasized that the Union’s efforts to arrange bargain-
ing sessions after the final November 29 session were fruitless
as the Respondent unlawfully engaged in delaying tactics and
failed to meet on any of the numerous dates offered by the Un-
ion.
The Respondent’s other violations of the Act, as set forth
herein, most notably refusing to furnish information which may
have been helpful in the Union’s preparing further offers, by-
passing the Union and dealing directly with its employees,
changing its health insurance plan without bargaining, and ter-
minating the BIP and changing the access rights of the Union,
illustrates that it was the Respondent’s lack of good faith, rather
than the Union’s, that resulted in a lack of meaningful bargain-
ing which precluded a finding that impasse was reached.
4. The parties’ understanding as to the state of negotiations
Regarding the Respondent’s claim that it made a “final of-
fer” at the August 25 session, I cannot credit the testimony of
Jasinski or employees Plummer and Dieujuste that Jasinski
made that statement. Dieujuste supported Machado in the Un-
ion election for president against incumbent president Silva,
was a member of her campaign committee, prepared two em-
ployee petitions which sought to have Alcoff removed as nego-
tiator, filed a charge against the Union alleging that it violated
its duty of fair representation, and signed a Board petition in
which a rival union, for which she is a delegate, sought to rep-
resent the employees of the Employer. Further, she denied re-
ceiving the dismissal letter of the charge she filed, and uncon-
vincingly denied receiving any information concerning the
charge after she filed it. Accordingly, Dieujuste’s testimony
may have been affected by her alliance with a rival union and
connection with Machado in opposition to the Union and Al-
coff.
A further reason exists for rejecting Jasinksi’s claim that he
announced that he made a final offer. On August 30, Alcoff
sent a letter modifying the Union’s proposals. Clearly, if the
Respondent had made a final offer on August 25, it would be
incumbent on the Union to accept or reject it, not make an addi-
tional proposal. Further, Jasinski’s letters of October 4 and
November 16 made no mention of the alleged final offer. Simi-
larly, at the November 29 session, Jasinski did not announce
that he had made a final offer. It was only the following day,
November 30, that he wrote that he had presented the Em-
ployer’s final offer three months earlier.
Indeed, on November 30, Jasinski offered to meet with the
Union if it makes a “meaningful contract proposal.” Accord-
ingly, the Employer believed that further negotiations would be
fruitful. Such statements support a finding of no impasse. Ead
Motors Eastern Air Devices, 346 NLRB 1060, 1064 (2006);
Duane Reade, Inc., 342 NLRB 1016, 1017 (2004).
“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.2nd 1176,
1186 (5th Cir. 1982); Larsdale, Inc., 310 NLRB 1317, 1318
1993). “Impasse can exist only if both parties believe that they
are ‘at the end of their rope.’” Cotter & Co., 331 NLRB 787,
788 (2000). Thus, there must be a contemporaneous 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 in writing.
In Cotter & Co., 331 NLRB 787, 788 (2000), in finding that
no impasse had taken place, the Board noted that prior to the
employer’s declaration of impasse, there had been movement
on important issues and the union had demonstrated flexibility.
Here, the Union made a written modification of its offer on
August 30, and offered to present another proposal at the De-
cember 2 session, and in view of the parties’ agreement, on
November 29 and thereafter 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. Newcor Bay City Division,
345 NLRB 1229, 1240 (2005). In light of the Union’s willing-
ness to continue bargaining I cannot find that the parties had
reached a deadlock on the issue of the Benefit Fund. 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. Although the Re-
spondent believed that there was an impasse the Union did not.
Accordingly, there was no contemporaneous understanding by
both parties that they had reached impasse.
J.D. Lunsford Plumbing, 254 NLRB 1360, 1364–1365
(1981), and Richmond Electrical Services, cited by the Respon-
dent, may be distinguished in that the unions in those cases
refused to accept any terms different than standard, area con-
tracts and in Richmond, the union conceded that the most-
PAVILIONS AT FORRESTAL & PRINCETON HEALTHCARE

561
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 modified the terms of the
Tuchman Benefit Fund amounts, and offered various wage
terms which differed from that agreement.
“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.2nd 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 offer to make a new proposal on December 2,
his offer to consider a different health plan, and his offers to
meet thereafter certainly created a “new possibility of fruitful
discussion.”
In finding that no impasse occurred, the Board in Newcor
Bay City Division, ibid., observed that when the employer as-
serted that the parties were at impasse, the union agent asked to
continue bargaining and assured the employer that it was pre-
pared to negotiate. It was expected that the union would make
concessions depending on what information the employer pro-
vided. The Board found that no impasse occurred even though
the union “had not yet offered specific additional concessions,
but only declared its intention to be flexible and continue bar-
gaining.” See Ead Motors, above at 1064. The Board also noted
that although a “wide gap” existed between the parties’ posi-
tions, no impasse occurred where there was a possibility of
further movement on important issues. Newcor, ibid.. Similarly,
the evidence here shows that the Union officials were not at the
end of their negotiating rope, but were ready and willing to
negotiate further.
In Serramonte Oldsmobile, 318 NLRB 80, 98 (1995), as
here, although at the final bargaining session “all the elements
of a genuine impasse in bargaining were in place” here, Al-
coff’s offer to present a new proposal on December 2 repre-
sented “serious movement—a substantial effort” to bridge the
gap in positions. Thus, Alcoff’s statement signaled that move-
ment was possible. That does not mean that the Union could be
expected to change its position, but it is “realistically possible”
that continued discussion would have been fruitful.
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, and sought another bargaining
session. “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.
I thus cannot find that the Union’s willingness to continue
talks was a “mere token offer” made for the ulterior purpose of
precluding the unilateral implementation of certain terms.
NLRB v. H & H Pretzel Co., 831 F.2nd 650, 656 (6th Cir. 1987)
as argued by the Respondent. In that case the union did not
make a new proposal or indicate a willingness to compromise
further on any specific issue. Here, the Union offered to make a
new proposal and meet again. See Jano Graphics, Inc., 339
NLRB 251, 251 (2003), where the Board found that any im-
passe that existed was broken when the union informed the
employer that it had new proposals and was seeking further
bargaining.
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.
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.2nd 267, 273 (D.C. Cir.
1979).
It thus cannot fairly be said that by the end of the November
29 session or thereafter, the parties had exhausted all possibili-
ties of reaching agreement. Accordingly, the Respondent’s
declaration of impasse and unilateral changes in its employees’
terms and conditions of employment were premature and vio-
lated Section 8(a)(5) and (1) of the Act.
In addition to the above, “a legally recognized impass cannot
exist where the employer has failed to satisfy its statutory obli-
gation to provide information needed by the bargaining agent to
engage in meaningful negotiations.” Newcor Bay City, above,
at 1241. In this connection, the Union’s information requests of
January 19 and June 20, 2006 have not been complied with.
Particularly important was its January 19 request for informa-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD562
tion concerning the health plan implemented by the Respondent
which replaced the Benefit Fund.
If information had been forthcoming regarding that plan, in-
formed bargaining may have taken place concerning it and it is
possible that the Union would have modified its offer insisting
on the continuation of the Benefit Fund. Indeed, the Union later
offered to consider an alternative plan to the Benefit Fund. In
addition, the Union’s June 20 request asking for updated infor-
mation concerning the employees may also have led to more
productive bargaining and the presentation of offers which
could have led to an agreement. Inasmuch as none of the in-
formation was provided, the Union was prevented from making
a further, informed offer based on the employees’ current terms
and conditions of employment.
I accordingly find and conclude that no impasse had been
reached by the parties during or after their negotiations.
B. The Unilateral Changes
It has been held that if parties are engaged in overall contract
negotiations which encompass mandatory bargaining subjects,
the employer is obligated not only to give the union notice and
an opportunity to bargain over the change, but also to refrain
from implementation until impasse or agreement. Indian River
Memorial Hospital, 340 NLRB 467, 468 (2003).
I have found above that the parties had not reached impasse
in bargaining and accordingly the Respondent was not permit-
ted to make the unilateral changes that it did.
A unilateral change in a mandatory subject of bargaining is
permitted only if the union clearly and unmistakably waives its
right to negotiate over the changes. See Metropolitan Edison
co. v. NLRB, 460 U.S. 693, 708 (1983). The Court stated there
that “we will not infer from a general contractual provision that
the parties intended to waive a statutorily protected right unless
the undertaking is ‘explicitly stated.’” To meet the “clear and
unmistakable” standard, the contract language must be specific,
or it must be shown that the matter claimed to have been
waived was fully discussed by the parties and that the party
alleged to have waived its rights consciously yielded its interest
in the matter. Allison Corp., 330 NLRB 1363, 1365 (2000). No
such showing has been made here.
The questions to be answered are (a) were material changes
made to the employees’ terms and conditions of employment
(b) did the changes involve mandatory subjects of bargaining
(c) did the Respondent notify the Union of the proposed
changes and (d) did the Union have an opportunity to bargain
with respect to the changes. I find below that the Respondent
made material changes which involved mandatory subjects, and
that it did not notify the Union of the changes or provide it with
an opportunity to bargain concerning those changes.
1. The Change of the Health Insurance Plan
The complaint alleges that in January, Atrium changed the
health insurance plan that covered unit employees’ health
claims without notice to the Union and without affording it an
opportunity to bargain concerning the change. Health insurance
is a mandatory subject of bargaining. Mid-Continent Concrete,
336 NLRB 258, 259 (2001).
As set forth above, the Benefit Fund terminated benefits for
the Respondent’s employees on December 1, 2005 because of a
failure by the Employer to make contributions to the Fund. On
December 22, the Fund informed the Respondent and the Un-
ion that if the parties reach agreement on a new collective-
bargaining agreement providing for participation in the Fund
effective December 1, 2005, and if the Employer presents re-
ports of earnings for December, 2005, eligibility for health and
welfare benefits through the Fund would be effective retroac-
tively to December 1, 2005.
On December 27, 2005 and January 17, 2006, Jasinski wrote
to Alcoff that the termination of benefits forced the Respondent
to protect its workers by providing another health benefit plan
which it “proposed and implemented” to mitigate any losses
and protect its employees. Contrary to Jasinski’s use of the
word “proposed” there was no evidence that any proposal was
made to the Union prior to the implementation of the new plan.
Accordingly, I find that the Respondent did not propose to the
Union that it intended to implement a new health benefit plan.
In this connection, I credit Alcoff’s uncontradicted testimony
that the Respondent did not notify the Union prior to making
the change and did not offer to bargain with it concerning the
change.
One year later, in December, 2006, Jasinski wrote to Alcoff
stating that the Union, at the direction of the Benefit Fund,
terminated the health plan for employees, and that the Fund
unilaterally changed the healthcare provider and decreased
benefits. Jasinski stated that such action forced the Respondent
to protect its workers.
The Respondent’s answer to the complaint alleges certain af-
firmative defenses, including that the Union unilaterally modi-
fied the terms and conditions of the expired contract in viola-
tion of the Act. The Respondent argues that the Union termi-
nated the health plan in order to force it to reach agreement on a
new contract. It points to Fund director Wells’ letter offering to
reinstate the plan if agreement was reached on a new contract
effective December 1, 2005 and if the Employer pays what it
owes. From this the Employer asserts, as set forth in its De-
cember 27 letter, that the Union, at the direction of the Benefit
Fund, terminated the health plan for employees, and the Fund
unilaterally changed the healthcare provider and decreased
benefits.
As proof of the domination of the Fund by the Union, the
Respondent asserts, according to Jasinski’s testimony, that a
majority of the Fund’s trustees were union trustees, that Silva
was a trustee, that none of the employer trustees were New
Jersey employers, and a Fund employee worked for a period of
time in the Union’s office in New Jersey. It further asserts that,
based on Machado’s testimony, Alcoff directed that all ques-
tions from employees concerning the Fund be directed to the
Union’s staff including the Fund employee stationed at the
Union’s office. Alcoff reasonably explained that he was told by
the Fund that employees were calling Fund director Wells and
other Fund employees with questions and complaints about
their benefits and the Fund wanted one person to be responsible
to answer such inquiries. The Fund rented space from the Un-
ion and a Fund employee worked there answering questions.
Such conduct does not constitute evidence, as alleged by the
Respondent that the Fund and the Union acted in concert to
pressure the Respondent into signing the master agreement.
PAVILIONS AT FORRESTAL & PRINCETON HEALTHCARE

563
As Alcoff stated, the Union has no authority over the Benefit
Fund. The Fund terminated benefits because of the Employer’s
admitted failure to pay its obligations to the Fund. Wells’ letter
had no relation to the bargaining undertaken by the parties. It
just stated that benefits would be reinstated if agreement was
reached by a certain date. Service Employees Local 1-J (Shor
Co.), 273 NLRB 929 (1984), cited by the Respondent, is inap-
posite. In that case the Board found that a union fund was an
agent of the union where the fund administrator who was also
the union president, had actual authority from the fund’s trus-
tees to act in behalf of the union. There is no such showing
here.
The Respondent defends its implementation of the new plan
on the ground that due to the Fund’s termination of benefits for
its employees they were left without health insurance. In mak-
ing this claim the Respondent is, in effect, arguing that it was
faced with an “economic exigency” which required such action.
No such showing has been made here.
The principle of economic exigency is usually applied to
cases of dire financial emergency faced by the employer. RBE
Electronics of S.D., 320 NLRB 80, 81 (1995). It must be shown
that the exigency was caused by “external events, was beyond
the employer’s control, or was not reasonably foreseeable.”
RBE at 82. The Respondent cannot show that any of those cir-
cumstances was present. Clearly, the termination of benefits by
the Fund was caused by internal events – the Respondent’s
failure to pay its contractual contributions to the Fund. It was
not beyond the Respondent’s control since it could have made
those payments. Further, the termination of the Fund’s benefits
was reasonably foreseeable since if payments to fund the plan
were not made it is obvious that benefits would be terminated.
Moreover, the employer seeking to use this defense must give
adequate notice and an opportunity to bargain with the union
and bargain to impasse over the matter. RBE at 82. The Re-
spondent has not met any of those requirements.
While it is laudable for the Respondent to arrange to have its
employees covered by a health benefit plan when the Benefit
Fund terminated their coverage, its action was nevertheless
unlawful. It could have offered to bargain with the Union con-
cerning the new policy but it did not. In addition, the imple-
mentation of the new plan would not have been necessary if the
Respondent had made its contributions as it was legally re-
quired to. In identical circumstances, in Park Maintenance, 348
NLRB 1373, 1382 (2006), where a union benefit fund termi-
nated the health plan it had with an employer and the employer
placed its employees in its own plan, the Board found a viola-
tion since the employer had not offered to bargain with the
union about the change.13
I accordingly find and conclude that the Respondent violated
Section 8(a)(5) of the Act, as alleged, by changing its health
insurance plan without prior notice to the Union and without
affording it an opportunity to bargain with Atrium regarding
this conduct and the effects of this conduct. The standard rem-
edy for unilaterally implemented changes in health insurance
coverage includes the restoration of the status quo ante regard-

13 It should be noted that no exceptions were filed to the judge’s
finding of that violation.
less of whether such a requirement is “necessary or possible.”
Larry Geweke Ford, 344 NLRB 628, 628 (2005).
2. The Baylor incentive program
The complaint alleges that on about March 1, 2006, Respon-
dent Atrium eliminated the Baylor Incentive Program without
prior notice to the Union and without affording it an opportu-
nity to bargain with Atrium regarding this conduct and the ef-
fects of this conduct.
As set forth above, the Respondent stipulated that it elimi-
nated the BIP on or about March 1, 2006. The BIP was an ar-
rangement whereby the nurses worked on Saturday and Sunday
each week, totaling about 32 hours per week but were paid for
40 hours. The notice sent to the nurses advised them to speak to
the director of nursing about “other options.” Accordingly, it is
apparent that the nurses’ working conditions—their hours and
wages were changed.
The Board has long held that “an employer violates Section
8(a)(5) when it makes a material and substantial change in
wages, hours, or any other term of employment that is a manda-
tory subject of bargaining, at a time when unit employees are
represented by a union, and in the absence of an impasse in
bargaining. Even where a change resulted directly from a per-
missible, preelection or managerial decision concerning the
scope of the business, the employer is required to bargain over
the change as an effect of that decision.” First National Main-
tenance Corp. v. NLRB, 452 U.S. 666, 677 fn. 15 (1981);
Fresno Bee, 339 NLRB 1214 (2003).
The General Counsel has established a prima facie violation
by showing that the Respondent changed the terms and condi-
tions of employment of the Baylor nurses by eliminating the
BIP. The evidence establishes that their wages and hours, man-
datory subjects of bargaining, were changed by the notification
to them that the BIP would no longer be offered and they were
advised to discuss other options with management.
I credit Alcoff’s uncontradicted testimony that the Respon-
dent did not offer to bargain with the Union concerning the
termination of the BIP. In fact, upon learning that the program
would be eliminated, Alcoff, on February 16, requested bar-
gaining concerning its termination. No bargaining took place as
to this matter.
Whether Alcoff may have objected to the nurses’ higher
salaries is irrelevant to the question here which is whether the
Respondent made a material and substantial change in a term of
employment without negotiating with the Union. I find that it
did.
In defense, the Respondent argues that (a) impasse in bar-
gaining had been reached (b) the decision to eliminate the BIP
was lawful in that there were too few nurses in the program for
it to operate properly (c) the Baylor nurses were not part of the
unit (d) the BIP is not mentioned in the collective-bargaining
agreement and (e) the expired contract’s management rights
clause permitted this change. First, as set forth above, I find
that no valid impasse was reached in bargaining. Second, re-
gardless of whether the decision to eliminate the program was a
lawful economic decision, the Respondent still had an obliga-
tion to bargain about such a material change. First National
Maintenance, above. In addition, the evidence is clear that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD564
Baylor nurses were licensed practical nurses which are part of
the contractual unit. In addition, although the terms of the BIP
were not specifically set forth in the contract, “an employer’s
established past practice can become . . . . an implied term and
condition of employment. Any unilateral change in an implied
term or condition of employment violates Section 8(a)(5) and
(1) of the Act. Finch, Pruyn & Co., 349 NLRB 270 fn. 31
(2007). Here, I credit Alcoff’s testimony that it was the prac-
tice of the Respondent to have such an arrangement for certain
nurses before and during their current negotiations. Accord-
ingly, the BIP was an established past practice which had be-
come an implied term and condition of employment.
Finally, 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, 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
elsewhere that the parties intended the management rights
clause to survive the expiration of the agreement. Accordingly,
the Respondent may not rely on the management rights clause
in the expired contract to justify its unilateral changes.
Even assuming that the management rights clause survived
the expiration of the contract, a unilateral change in a 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
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.
I therefore find and conclude that Respondent Atrium vio-
lated Section 8(a)(5) of the Act as alleged by eliminating the
Baylor Incentive Program without prior notice to the Union and
without affording it an opportunity to bargain with Atrium re-
garding this conduct and the effects of this conduct.
3. Access by the Union to the facility
The complaint alleges that since on about July 20, 2006,
Atrium changed the access right of Union representatives to its
facility for the purpose of meeting with unit employees to more
effectively represent them, by denying Union representatives
such access rights.
The Board has held that contractual provisions setting forth a
union’s right of access to an employer’s facility survive the
expiration of the collective-bargaining agreement. Gilberton
Coal Co., 291 NLRB 344, 348 (1988); Scott Bros. Dairy, 332
NLRB 1542 fn. 2 (2000); T.L.C. St. Petersburg, 307 NLRB
605, 610 (1992). Accordingly, the question is whether the Un-
ion’s actions conformed to the contractual provisions and
whether the Respondent unlawfully excluded it from its prem-
ises.
As set forth above, a Union meeting was scheduled for July
20 at the facility. Flyers were posted prior to that time advertis-
ing the event. Alcoff admittedly entered the facility without
having given advance notice to the Respondent and he was
asked to leave. According to Article 5-D of the contract, the
Union is required to notify the Respondent in advance of Union
meetings. Alcoff admittedly did not do so.
There was no evidence that Alcoff was permitted to hold
pre-scheduled Union meetings prior to this time without advis-
ing the Respondent in advance. The pre-scheduled collective-
bargaining sessions which were immediately preceded by a
Union meeting between Alcoff and employees did not require
advance notice since the Respondent had been given advance
notice of the sessions. I accordingly find that no violation oc-
curred in the Respondent’s denying access to Alcoff for the
conduct of the meeting on July 20 where the Respondent was
not notified in advance as required by the contract. The mere
fact that flyers were posted did not constitute the contractually
required advance notice.
I credit the uncontradicted testimony of Alcoff that in Au-
gust, 2006, he and agent Hamilton entered the facility, an-
nounced their presence to the receptionist and walked to the
employee break room to attempt to speak with employees in
this spontaneous, unplanned, unscheduled visit. They were
asked to leave. Article 5-A permits a Union agent to enter the
facility to discharge his duties as a union representative. The
only requirement is that upon entering the facility he notify the
administrator or his designee of his presence. Alcoff gave un-
contradicted testimony that in the past, in an identical fashion,
he announced himself to the person at the receptionist desk and
proceeded to the break room and spoke to employees without
interference from the Employer.
I find that Alcoff satisfied the requirements of Article 5-A by
telling the receptionist of his presence. Article 5-A does not
require the administrator to give his approval of Alcoff’s pres-
ence. It just demands that the union agent notify him or his
designee of his presence and that thereafter he shall have ad-
mission to the facility. Alcoff followed his past practice by
notifying the receptionist of his presence in August, 2006.
There was no evidence that the receptionist was not the admin-
istrator’s designee. I accordingly find and conclude that the
Respondent unlawfully denied access to Alcoff in August,
2006.
III. THE ALLEGED DIRECT DEALING WITH EMPLOYEES
The complaint alleges that on about August 24, 2005, Prince-
ton bypassed the Union and dealt directly with its employees by
making a contract proposal to them before the proposal was
made to the Union.
This allegation relates to the Employer’s August 24 letter to
employees and family members of the residents referring to a
planned job action by the Union six days later. While the letter
sought to reassure that the residents were “taken care of,” it
also informed the reader that it was blameless since it proposed
a new contract which included wage increases totaling 12%,
contributions of 16% to the Benefit Fund, paid vacation, holi-
PAVILIONS AT FORRESTAL & PRINCETON HEALTHCARE

565
days and sick days, but the Union “flatly rejected our proposal.
Instead, they are insisting that we agree to a contract that was
agreed to by other Employers who are in a different situation
than we are in.”
Although Jasinski stated that the purpose of the letter was to
“calm” the family members as to the safety of the residents and
to advise them of the Respondent’s position in the bargaining,
that position had not yet been presented to the Union. In fact,
the Respondent’s outstanding offer at that time was for a 7%
wage raise over three years. Although the Respondent offered a
12% wage raise at the next meeting which was one day after
the letter was issued, that offer was not made to the Union prior
to the letter being sent.
It is well settled that the Act requires an employer to meet and
bargain exclusively with the bargaining representative of its
employees. An employer who deals directly with its union-
ized employees or with any representative other than the des-
ignated bargaining agent regarding terms and conditions of
employment violates Section 8(a)(5) and (1). Armored Trans-
port, Inc., 339 NLRB 374, 376 (2003).
In Armored Transport, above, the Board found that the em-
ployer violated its duty to bargain with the union by handing its
employees a bargaining proposal and later the same day send-
ing the union the same proposal. Similarly to the instant case,
the employer disparaged the union. In that case the employer
suggested that the employees demand a new election and en-
couraged them to reject the union. Here, the Respondent dis-
paraged the Union by incorrectly informing its employees that
the Union rejected a proposal, whereas that proposal had not
been made prior to that time. In addition, the Respondent un-
dermined the Union by stating that it insisted that it sign a con-
tract agreed to by other employers.
An employer may communicate its bargaining position to its
employees, but here, as in Armored Transport, the Respondent
sought to undermine the Union’s status and disparage it in the
eyes of its employees by presenting a contract proposal to them
before it presented it to the Union and by stating, with no basis,
that the Union had rejected that proposal. See also Detroit Edi-
son Co., 310 NLRB 564, 565 (1993) where the Board found
unlawful direct dealing with employees in the employer’s
communicating a contract proposal to them prior to its presen-
tation to the union.
IV. THE ALLEGED BAD FAITH BARGAINING
The complaint alleges that from about August 25, 2005 to
about December 9, 2005, Princeton failed and refused to bar-
gain with the Union over a successor collective-bargaining
agreement by engaging in delaying tactics, ignoring the Un-
ion’s requests to meet on numerous dates it had proposed to
bargain, and by unreasonably failing and refusing to meet on
nearly all of those dates. The complaint alleges that Atrium,
which admittedly became the successor to Princeton on or
about December 9, 2005, committed the same violations begin-
ning on about December 9, 2005.
There was no evidence that the Respondent cancelled any
bargaining sessions prior to August 25, or unlawfully failed to
meet with the Union. Thus, the parties met for bargaining on
February 24, 2005, in March, June 8, July 7, August 12, 17, and
25. There were thus seven sessions in seven months. Unfortu-
nately, matters changed thereafter with the Respondent exhibit-
ing little interest in meeting and in fact cancelling scheduled
bargaining sessions.
Thus, as set forth above, on August 30, 2005, Alcoff asked
Jasinski to suggest available dates for bargaining, and not hear-
ing from him, on September 30 offered eight days in October.
Jasinski did not respond. At hearing, Jasinski did not recognize
and could not recall receiving the letter, but wrote to Alcoff on
October 4, stating that he was not available to meet on any of
the dates in Alcoff’s September 30 letter, but offering to meet
in the week of October 25. By letter of October 10, Alcoff
agreed to meet on October 26-28, but when Alcoff called to
confirm a meeting date, Jasinski’s office said that he was not
available to meet. A new session was scheduled for November
2 or 3, but Jasinski cancelled that session because he was not
available, but according to the credited testimony of Alcoff,
Jasinski did bargain with him about a different employer on one
of those dates, and was therefore available to bargain in behalf
of the Respondent.
On November 14, suggested five dates in November and ten
dates in December. Jasinski agreed to meet on November 29
and December 2. They met on November 29 at which Alcoff
inquired about an alleged new owner and asked Jasinski to
respond at the December 2 meeting. On November 30, Jasinski
cancelled the December 2 meeting unless Alcoff made a
“meaningful contract proposal,” but asked Alcoff to propose
other dates.
On December 9, Atrium became the admitted successor to
Pavilions. The new employer’s delaying tactics continued as
before.
On January 19, 2006, Alcoff offered all dates in February,
but none were acceptable to Jasinski. On April 11, Jasinski
conditionally offered to meet in late April or early May “pro-
vided that Alcoff represents the employees.” Nevertheless, on
May 10, Jasinski stated that he had no objection to meeting
with Alcoff or other representative designated by the Union.
Alcoff wrote on May 15, offering to meet between June 5
and 15. Jasinski agreed to meet on June 12. Alcoff cancelled
that session because of his unavailability due to the counting of
ballots in the internal union election, and because of the lack of
cooperation of the Union’s agent in providing the names of
employees who would attend the meeting. Jasinski made much
of the Union’s cancellation of this meeting. It asked that the
charges be dismissed, asserting that Alcoff and the Union have
repeatedly refused to meet and bargain, and also filed a charge,
later dismissed, alleging that the Union violated its duty of fair
representation by campaigning for a candidate instead of repre-
senting employees.
On June 20, Alcoff offered all dates from July 10 through the
end of July. None were accepted by Jasinski. On July 10, Jasin-
ski asked Alcoff to propose dates for bargaining. Alcoff re-
sponded by letter of July 17, offering to meet on four dates in
July and on August 1. Again, none of the dates was agreed to
by Jasinski.
On October 23, Jasinski wrote that he was willing to attend
further bargaining sessions. Alcoff replied that he could meet
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD566
during two weeks in mid-December but wanted information he
had previously requested. Jasinski did not agree to meet during
those two weeks. Jasinski wrote on December 27, offering to
meet during the weeks of January 2 or 8, 2007. Alcoff replied
on January 9, having just returned from vacation, that he was
available during the week of January 29. Jasinski replied, but
did not address Alcoff’s request to meet and no meeting was
held. It does not appear that the parties met for bargaining at
any time thereafter.
Based on the above, the evidence is quite clear that the Re-
spondent, as alleged, failed and refused to bargain by engaging
in delaying tactics, ignoring the Union’s requests to meet on
numerous dates it had proposed to bargain, and by unreasona-
bly failing and refusing to meet on nearly all of those dates. The
Union used its best efforts to attempt to meet with the Em-
ployer but to no avail. It wrote to Jasinski numerous times re-
questing a wide range of dates that it was available to bargain.
When Alcoff proposed dates for meeting, invariably Jasinski
either did not respond or did not agree. When a meeting was
agreed to, the Employer cancelled the meeting, for example, in
early November and on December 2, 2005. Further, Jasinski
occasionally wrote to Alcoff asking him to propose dates to
meet, such as on November 30, 2005, July 10, and October 23,
2006 but not himself offering any dates that he was available,
thus leaving open the possibility, which he seized upon, to re-
ject the dates chosen by Alcoff.
In addition, Jasinski’s refusal, for one month, from April 11
to May 10, to meet with the Union until Alcoff demonstrated
that he represented the employees is further evidence of the
Respondent’s unlawful dilatory tactics. Notwithstanding the
employee petitions concerning Alcoff’s representative capacity,
it is the Union, and not the employees, which chooses the bar-
gaining representative. It has long been held that “employers
and unions have the right ‘to choose whomever they wish to
represent them in formal labor negotiations.” General Electric
Co. v. NLRB, 412 F.2nd 512, 516 (2nd Cir. 1969). Parties must
deal with the chosen representatives who appear at the bargain-
ing table except in the rare circumstance when the “presence of
a particular representative … makes collective bargaining im-
possible or futile.” Fitzsimons Mfg. Co., 251 NLRB 375, 37J9
(1980).
Incredibly, Jasinski seized upon Alcoff’s sole cancellation of
a meeting, June 12, to ask for dismissal of the charges on the
basis that the Union “repeatedly refused to meet and bargain.”
Nothing could be farther from the truth. It was clearly the Re-
spondent that has engaged in such conduct. Jasinski’s lack of
good faith is amply demonstrated in the course of events which
followed. While accusing the Union of repeatedly refusing to
meet, he did not accept any of the dates thereafter offered by
the Union – July 10 through the end of July, one day in August,
two weeks in December, and the week of January 29.
Jasinski’s credibility is further harmed by his failure to recall
receipt of the Union’s September 30 letter in which Alcoff
offered certain dates for bargaining, but then admitting sending
a letter on October 4 in reply to the September 30 letter.
The Board has held that an employer’s “pattern of delay” is
evidence of its violation of its Section 8(d) obligation to meet
with the Union at reasonable times for the purposes of collec-
tive bargaining. In Calex Corp., 322 NLRB 977 (1997), the
parties met for 19 sessions in the 15 months following the un-
ion’s certification, and the employer cancelled a number of
scheduled meetings. Here, the record of the Respondent’s fail-
ure to reply to offers to meet, failure to suggest dates for meet-
ing, and cancellations of meetings establish, and I find and
conclude, that it has refused to meet and bargain with the Union
in violation of its obligation under Section 8(a)(5) the Act.
V. THE FAILURE TO FURNISH INFORMATION TO THE UNION
The complaint alleges that on January 19, June 20 and July
17, 2006, the Union requested certain relevant information, and
the Respondent failed and refused to furnish it.
As set forth above, on January 19, 2006, Alcoff wrote to
Jasinski, asking for a copy of the summary plan description of
the new health plan implemented by the Employer, the total
premium costs, the costs to employees to obtain coverage under
the new plan, and the number of employees who are covered
under the new plan. These documents were requested because
Alcoff had just learned that the Respondent implemented a new
health benefits plan for its employees, and it sought to bargain
about this change.
On June 20 and July 17, 2006, Alcoff asked for an updated
list of all unit employees by job classification, including their
name, address, social security number, job title, date of hire,
wage rate, shift, etc., since January 1, 2006; copies of corre-
spondence to employees since December 1, 2005 regarding
terms and conditions of employment; copies of personnel poli-
cies or the employee handbook that was changed since Decem-
ber 1, 2005; summary plan descriptions of insurance plans of-
fered to employees; cost to the employer and the employees of
insurance plans; gross bargaining unit payroll from January 1,
2006 through May 31, 2006; and a summary of the policies and
benefits offered to the “Baylor Nurses.”
These documents were requested because of the purchase of
the facility by a new owner, Atrium. Alcoff sought to determine
what changes the new owner made in its employees’ terms and
conditions of employment as of the time of the new ownership.
Alcoff testified that this was the first time he requested copies
of correspondence and copies of the personnel policies, hand-
book and payroll, and he sought the information for the periods
set forth because the new owner purchased the facility in De-
cember, 2005. His further reasons for seeking the data were that
he heard from employees that there were changes in their terms
and conditions of employment including their dates of hire and
their accruals of paid time off.
I credit Alcoff’s uncontradicted testimony that none of the
information requested was provided to the Union, and the Re-
spondent has not shown that it had, in fact, provided the infor-
mation requested in the Union’s letters of January 19, June 20,
and July 17.
The Union’s reasons for requesting the information, set forth
above, establish that the documents sought were essential, nec-
essary and relevant to the Union’s performance of its duties as
the collective-bargaining representative of the unit employees.
The information all related to unit employees’ terms and condi-
tions of employment, the benefits they received, and the poli-
cies affecting them. All the requested documents encompassed
PAVILIONS AT FORRESTAL & PRINCETON HEALTHCARE

567
information that the Union had not requested and had not re-
ceived prior to its requests.
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
concerning unit employees that it needed to fulfill its represen-
tative duties.
In Caldwell Mfg. Co., 346 NLRB 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.”
The Respondent’s defenses are that it provided information
to prior Union bargainers who said that no further information
was needed, the Union had not sought any additional informa-
tion prior to January 19 but nevertheless had made two full
economic proposals without such information, and that the
information requested had already been provided. None of
these defenses have merit. The fact that prior Union agents
were satisfied with the information they received does not mean
that later information could not be requested. The bargaining
progressed and the ownership changed after Alcoff became the
chief negotiator and he correctly believed that additional infor-
mation was necessary. Similarly, the fact that prior economic
proposals were made without such information does not mean
that the Union could not benefit from additional information
which it could utilize to make an additional proposal. Finally,
the evidence is clear that none of the requested information had
been furnished.
I accordingly find that the information requested in the let-
ters of January 19, June 20 and July 17, 2006, all of which was
presumptively relevant in that it pertained to the unit employ-
ees, was necessary for and relevant to the performance of the
Union’s duties as the exclusive collective-bargaining represen-
tative of the unit employees. The Respondent’s failure to fur-
nish the information requested violated Section 8(a)(5) of the
Act.
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 part-time certified nurses assistants, house-
keeping employees, dietary employees, laundry employees,
staff licensed practical nurses, unit clerks, unit secretaries, ac-
tivities/recreations employees, maintenance employees em-
ployed at the Pavilions, but excluding registered nurses, office
clerical employees, supervisors, watchmen and guards.
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 changing the access right of Union represen-
tatives to its facility.
5. The Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally changing the health insurance plan that cov-
ered unit employees’ health expenses.
6. The Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally eliminating the Baylor Incentive Program.
7. The Respondent violated Section 8(a)(5) and Section
8(a)(5) and (1) of the Act by bypassing the Union and dealing
directly with its employees by making a contract proposal to
them before the proposal was made to the Union.
8. The Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally engaging in delaying tactics, ignoring the
Union’s requests to meet on numerous dates it had proposed to
bargain and by unreasonably failing and refusing to meet on
certain dates for bargaining.
9. 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 January 19, 2006 and June 20, 2006
and July 17, 2006, which was necessary for and relevant to the
performance of the Union’s duties as the exclusive collective-
bargaining representative of the unit employees.
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 August 24,
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 rein-
statement, less any net interim earnings, as prescribed in F. W.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD568
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]