Wayneview Care Center

National Labor Relations Board - Board Decisions

Aug 26, 2008

352 N.L.R.B. 1089 (N.L.R.B. 2008)

WAYNEVIEW CARE CENTER
352 NLRB No. 129
1089
Wayneview Care Center and Victoria Health Care
Center and SEIU 1199, New Jersey Health Care
Union. Cases 22–CA–26987, 22–CA–26988, 22–
CA–27119, and 22–CA–27365
August 26, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On July 26, 2007, Administrative Law Judge Eleanor
MacDonald issued the attached decision. The Respon-
dents 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
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions as modified below and to adopt
the recommended Order as modified and set forth in full
below.3

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 Respondents’ contentions are
without merit.
Other than the Respondents’ general exception to the crediting of the
General Counsel’s witnesses, there are no exceptions to the judge’s
findings: that Respondent Wayneview violated Sec. 8(a)(1) by telling
employees to remove union buttons and by threatening to discharge
employees for striking, wearing union buttons, or talking to the Union;
that Respondent Wayneview violated Sec. 8(a)(3) and (1) by suspend-
ing employee Marjorie Barnett; that Respondent Victoria violated Sec.
8(a)(1) by threatening to discharge employees for striking and by
threatening to permanently replace locked-out employees; that Respon-
dent Victoria violated Sec. 8(a)(5) and (1) by conditioning a contract
and employees’ return to work on the Union’s agreeing to withdraw
pending unfair labor practice charges; that Respondent Victoria vio-
lated Sec. 8(a)(3), (5), and (1) by unilaterally withdrawing benefits
from returning strikers because they engaged in a strike; and that both
Respondents violated Sec. 8(a)(5) and (1) by denying the Union access
to the facilities. We therefore affirm those violations.
We reject, as lacking in merit, the Respondents’ arguments that the
judge erred by failing to impose sanctions on the General Counsel
pursuant to Bannon Mills, 146 NLRB 611 (1964), and by revoking the
Respondents’ subpoena to the extent it sought internal union communi-
cations regarding bargaining strategy.
3 We agree with the judge that Respondent Wayneview failed to
show a legitimate and substantial business justification for locking out
We agree with the judge that the Respondents failed to
prove that the parties reached impasse. The decisions
cited by the Respondents, in which the Board found im-
passe, are distinguishable. In Richmond Electrical Ser-
vices, 348 NLRB 1001 (2006), the union conceded that a
most-favored-nations clause in its collective-bargaining
agreement with a multiemployer group precluded the
union from agreeing to wages lower than those in the
multiemployer agreement, and the union never proposed
lower wages. Id. at 1002. In addition, the impasse over
wages in Richmond Electrical “led to a complete break-
down in negotiations.” Id. at 1003. In the present case,
the Union initially adhered to a health insurance proposal
that required participation in the Union’s health care
fund—as did the Union’s agreement with a group of
other employers, which agreement contained a most-
favored-nations clause. At the August 18 bargaining
session, however, the Union retreated from that position
and offered to continue participating in the Respondents’
health insurance plan. Thus, the most-favored-nations
clause was not a bar to further movement by the Union.
In Matanuska Electric Assn., 337 NLRB 680 (2002), the
Board found that the union engaged in stall tactics, such
as taking the position that “all words are ambiguous” and
that the employer was obliged to explain its intent and
motivation. Furthermore, the employer in Matanuska
specifically stated that it was willing to continue bargain-
ing if the union submitted a proposal showing move-
ment, but the union did not do so. Id. at 683–684. Those
facts bear no resemblance to the present case.4

its employees, and that the lockout therefore violated Sec. 8(a)(3) and
(1). We find it unnecessary to rely on the judge’s alternative finding
that the lockout was motivated by antiunion animus. We also find it
unnecessary to rely on the judge’s finding that the lockout was unlaw-
ful under Dayton Newspapers, 339 NLRB 650 (2003), enfd. in relevant
part 402 F.3d 651 (6th Cir. 2005), because Respondent Wayneview
failed to inform the Union of the conditions for ending the lockout.
Those additional grounds for finding the lockout unlawful would not
materially affect the remedy.
In adopting the judge’s finding that Respondent Wayneview violated
Sec. 8(a)(1) by assisting employees with a decertification petition, we
rely on Respondent Wayneview’s conduct with respect to employee
Margaly Pierre. We find it unnecessary to rely on the conduct of
Wayneview’s staffing coordinator, Christopher Irizarry. An additional
violation based on Irizarry’s conduct would be essentially cumulative
and would not materially affect the remedy.
We shall modify the judge’s conclusions of law and recommended
Order and substitute a new notice to conform to the violations found
and to the Board’s standard remedial language.
4 Although we agree with the judge that the parties in the present
case did not reach impasse, we find it unnecessary to rely on the
judge’s statement in sec. III,A of her decision that an impasse cannot
exist where one party does not view the negotiations as having reached
impasse.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1090
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for the judge’s Conclusions
of Law 3, 4, and 5.
“3. By promising employees a return to work and in-
creased benefits if they signed a petition to decertify the
Union, Respondent Wayneview assisted employees in
the solicitation of signatures on a petition to decertify the
Union in violation of Section 8(a)(1) of the Act.
“4. By threatening employees that they would be fired
if they wore union buttons, spoke to the Union, or en-
gaged in a strike, and by instructing employees to re-
move union buttons, Respondent Wayneview violated
Section 8(a)(1) of the Act.
“5. By locking out its employees in the absence of a
legitimate and substantial business justification and to
coerce the Union into accepting unilaterally implemented
terms and conditions of employment, Respondent
Wayneview violated Section 8(a)(3), (5), and (1) of the
Act.”
2. Substitute the following for the judge’s Conclusion
of Law 11.
“11. By withdrawing benefits and uniform allowances
from employees because they participated in a strike and
supported the Union, Respondent Victoria violated Sec-
tion 8(a)(3), (5), and (1).”
AMENDED REMEDY
We have adopted the judge’s findings that the Respon-
dents unilaterally implemented new terms and conditions
of employment prior to a lawful impasse and that Re-
spondent Victoria unilaterally and discriminatorily with-
drew benefits and uniform allowances from returning
locked-out employees. Therefore, in addition to the re-
lief described in the remedy section of the judge’s deci-
sion, we shall require the Respondents to make employ-
ees whole for any loss of earnings and other benefits re-
sulting from the unlawful implementation of new terms
and conditions of employment, in the manner prescribed
in Ogle Protection Services, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987). We shall also require Respondent Victoria
to make employees whole for any loss of earnings and
other benefits resulting from the unlawful withdrawal of
benefits and uniform allowances, and to reimburse em-
ployee Geraldine Morgan (whom the Respondent unlaw-
fully treated as an on-call, “no-frills” employee without
benefits after the lockout) for any expenses resulting
from the withdrawal of her health benefits, as set forth in
Ogle, supra, and Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), affd. 661 F.2d 940 (9th Cir. 1981), with
interest as set forth in New Horizons, supra.
ORDER
A. The National Labor Relations Board orders that the
Respondent, Wayneview Care Center, Wayne, New Jer-
sey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending its employees because they support
SEIU 1199, New Jersey Health Care Union (the Union),
or any other labor organization and engage in union ac-
tivities.
(b) Assisting employees in the solicitation of signa-
tures to decertify the Union by promising employees a
job and increased benefits if they sign a petition to decer-
tify the Union.
(c) Threatening employees that they will be fired if
they wear union buttons, speak to the Union, or engage
in a strike, and instructing employees to remove union
buttons.
(d) Locking out its employees in the absence of a le-
gitimate and substantial business justification and to co-
erce the Union into accepting unilaterally implemented
terms and conditions of employment.
(e) Prematurely declaring impasse, refusing to meet
with the Union, and threatening to implement and unilat-
erally implementing new terms and conditions of em-
ployment prior to reaching a lawful impasse in collec-
tive-bargaining negotiations.
(f) Unilaterally changing a mandatory subject of bar-
gaining by denying union representatives access to the
facility.
(g) 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 Respondent’s employees in the unit described below.
(h) 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) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time CNAs, housekeep-
ing, laundry, and dietary employees employed by the
Employer at its Wayne facility, but excluding all other
employees including managers, statutory supervisors
and guards within the meaning of the Act.
(b) Within 14 days from the date of the Board’s Order,
remove from its files any reference to the unlawful sus-
pension of Marjorie Barnett and the unlawful lockout of
WAYNEVIEW CARE CENTER 1091
employees, and within 3 days thereafter, notify those
employees in writing that this has been done and that the
suspension and lockout will not be used against them in
any way.
(c) Make whole the unit employees for loss of earnings
and benefits suffered as a result of the Respondent’s
unlawful conduct in the manner set forth in the remedy
and amended remedy sections of the decision.
(d) On the Union’s request, cancel and rescind all
terms and conditions of employment unilaterally imple-
mented on or after September 6, 2005, but nothing in this
Order is to be construed as requiring the Respondent to
cancel any unilateral changes that benefited the unit em-
ployees without a request from the Union.
(e) Provide the Union with the information set forth in
the remedy section of the decision.
(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 backpay 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 A.”5 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 early August 2005.
(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.

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
B. The National Labor Relations Board orders that the
Respondent, Victoria Health Care Center, Matawan,
New Jersey, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with discharge if they en-
gage in a lawful strike.
(b) Withdrawing benefits and uniform allowances
from employees unilaterally and because they partici-
pated in a strike and supported SEIU 1199, New Jersey
Health Care Union (the Union), or any other labor or-
ganization.
(c) Prematurely declaring impasse, refusing to meet
with the Union, and threatening to and unilaterally im-
plementing new terms and conditions of employment
prior to reaching a lawful impasse in collective-bargain-
ing negotiations.
(d) Unilaterally changing a mandatory subject of bar-
gaining by denying union representatives access to the
facility.
(e) 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 Respondent’s employees in the unit described below.
(f) Conditioning agreement and return to work of em-
ployees on the Union’s agreement to withdraw its pend-
ing unfair labor practice charges.
(g) Refusing to reinstate striking employees upon their
unconditional offer to return to work, locking out em-
ployees in the absence of a legitimate and substantial
business justification and to coerce the Union into ac-
cepting unilaterally implemented terms and conditions of
employment, and threatening permanently to replace
unlawfully locked-out employees.
(h) 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) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time CNAs, housekeep-
ing, laundry, and dietary employees employed by the
Employer at its Matawan facility, but excluding all
other employees including managers, statutory supervi-
sors and guards within the meaning of the Act.
(b) Within 14 days from the date of the Board’s Order,
offer Geraldine Morgan and any unit employees who
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1092
remain locked out full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, dismissing,
if necessary, any persons engaged as replacements.
(c) Make whole the unit employees for loss of earnings
and benefits suffered as a result of the Respondent’s
unlawful conduct in the manner set forth in the remedy
and amended remedy sections of the decision.
(d) Within 14 days from the date of the Board’’ Order,
remove from its files any reference to the unlawful lock-
out and failure to reinstate and, within 3 days thereafter,
notify the affected employees that this has been done and
that the lockout and failure to reinstate will not be used
against them in any way.
(e) On the Union’s request, cancel and rescind all
terms and conditions of employment unilaterally imple-
mented on or after September 6, 2005, but nothing in this
Order is to be construed as requiring the Respondent to
cancel any unilateral changes that benefited the unit em-
ployees without a request from the Union.
(f) Provide the Union with the information set forth in
the remedy section of the decision.
(g) 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 backpay due
under the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facility in Matawan, New Jersey, copies of the at-
tached notice marked “Appendix B.”6 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 22, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since June 27,
2005.

6 See fn. 5, supra.
(i) 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.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX A
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT suspend employees because they support
SEIU 1199, New Jersey Health Care Union (the Union)
or any other labor organization and engage in union ac-
tivities.
WE WILL NOT assist employees in the solicitation of
signatures to decertify the Union by promising employ-
ees a job and increased benefits if they sign a petition to
decertify the Union.
WE WILL NOT threaten employees that they will be
fired if they wear union buttons, speak to the Union, or
engage in a strike, and WE WILL NOT instruct employees
to remove union buttons.
WE WILL NOT lock out employees in the absence of a
legitimate and substantial business justification and to
coerce the Union into accepting unilaterally implemented
terms and conditions of employment.
WE WILL NOT prematurely declare impasse, refuse to
meet with the Union, and threaten to and unilaterally
implement new terms and conditions of employment
prior to reaching a lawful impasse in collective-bargain-
ing negotiations.
WE WILL NOT unilaterally change a mandatory subject
of bargaining by denying union representatives access to
the facility.
WAYNEVIEW CARE CENTER 1093
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 employees in the exercise of the
rights set forth above.
WE WILL, on request, bargain with the Union as the
exclusive representative of the employees in the follow-
ing appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:
All full-time and regular part-time CNAs, housekeep-
ing, laundry, and dietary employees employed by us at
our Wayne facility, but excluding all other employees
including managers, statutory supervisors and guards
within the meaning of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspension of Marjorie Barnett and the unlawful
lockout of employees, and WE WILL, within 3 days there-
after, notify those employees in writing that this has been
done and that the suspension and lockout will not be used
against them in any way.
WE WILL make unit employees whole, with interest,
for loss of earnings and benefits suffered as a result of
our unlawful conduct.
WE WILL, on the Union’s request, cancel and rescind
all terms and conditions of employment unilaterally im-
plemented on or after September 6, 2005.
WE WILL provide the Union with the information it re-
quested.
WAYNEVIEW CARE CENTER
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten employees with discharge if
they engage in a lawful strike.
WE WILL NOT withdraw benefits and uniform allow-
ances from employees unilaterally and because they par-
ticipated in a strike and supported SEIU 1199, New Jer-
sey Health Care Union (the Union) or any other labor
organization.
WE WILL NOT prematurely declare impasse, refuse to
meet with the Union, and threaten to and unilaterally
implement new terms and conditions of employment
prior to reaching a lawful impasse in collective-bargain-
ing negotiations.
WE WILL NOT unilaterally change a mandatory subject
of bargaining by denying union representatives access to
the facility.
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 condition agreement and employees’ re-
turn to work on the Union’s agreement to withdraw its
pending unfair labor practice charges.
WE WILL NOT refuse to reinstate striking employees
upon their unconditional offer to return to work, lock out
employees in the absence of a legitimate and substantial
business justification and to coerce the Union into ac-
cepting unilaterally implemented terms and conditions of
employment, and threaten permanently to replace unlaw-
fully locked-out employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights set forth above.
WE WILL, on request, bargain with the Union as the
exclusive representative of the employees in the follow-
ing appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:
All full-time and regular part-time CNAs, housekeep-
ing, laundry, and dietary employees employed by us at
our Matawan facility, but excluding all other employ-
ees including managers, statutory supervisors and
guards within the meaning of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Geraldine Morgan and any unit employees
who remain locked out full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed, dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1094
missing, if necessary, any persons engaged as replace-
ments.
WE WILL make the unit employees whole, with inter-
est, for loss of earnings and benefits suffered as a result
of our unlawful conduct.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful lockout and failure to reinstate, and WE WILL, within 3
days thereafter, notify the affected employees that this
has been done and that the lockout and failure to reinstate
will not be used against them in any way.
WE WILL, on the Union’s request, cancel and rescind
all terms and conditions of employment unilaterally im-
plemented on or after September 6, 2005.
WE WILL provide the Union with the information it re-
quested.
VICTORIA HEALTH CARE CENTER
Jeffrey P. Gardner, Esq., for the General Counsel.
David F. Jasinski, Esq. and Alex Tovitz, Esq. (Jasinski and
Williams), of Newark, New Jersey, for the Respondents.
Ellen Dichner, Esq. (Gladstein, Reif & Meginniss), of New
York, New York, for the Union.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was heard in Newark, New Jersey, on eleven days from
September 26 to December 6, 2006. The Complaint alleges
that Respondent Wayneview Care Center, hereafter Wayne-
view, in violation of Section 8(a)(1), (3) and (5) of the Act,
forced employees to remove Union insignia, threatened em-
ployees with termination if they participated in a strike or other
protected activity, threatened employees with termination if
they met with Union representatives, denied access to Union
representatives, conditioned agreement on a permissive subject
of bargaining, refused to meet with the Union for negotiations,
locked out its employees, solicited employees to withdraw sup-
port for the Union and promised benefits if they did, assisted
employees in a decertification effort, refused to provide infor-
mation to the Union, threatened to implement and did imple-
ment new conditions without reaching a valid impasse and
suspended employee Marjory Barnett.1 The Complaint alleges
that Respondent Victoria Health Care Center, hereafter Victo-
ria, in violation of Section 8(a)(1), (3) and (5) of the Act,
threatened employees with termination if they participated in a
strike or other protected activity, promised employees benefits
if they did not strike, refused to reinstate striking employees,
locked out employees, threatened to implement and did imple-
ment new terms and conditions without reaching a valid im-
passe, threatened to replace locked-out employees permanently,
denied access to Union representatives, conditioned agreement

1 During the instant hearing the General Counsel withdrew allega-
tions relating to the discharges of Carmen Marcellius and Marie Ma-
zarim.
on a permissive subject of bargaining, refused to meet with the
Union for negotiations, refused to provide information to the
Union, and unilaterally changed conditions of employment for
reinstated employees.
Respondents Wayneview and Victoria deny that they have
engaged in any violations of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondents, I make the fol-
lowing2
FINDINGS OF FACT
I. JURISDICTION
Victoria Health Care Center is engaged in the operation of a
nursing home in Matawan, New Jersey. Wayneview Care Cen-
ter is engaged in the operation of a nursing home in Wayne,
New Jersey. Respondents Victoria and Wayneview each annu-
ally derive gross revenue in excess of $100,000 and purchase
goods valued in excess of $5,000 directly from points outside
the State of New Jersey. Respondents Victoria and Wayneview
are employers engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act and health care employers
within the meaning of Section 2(14) of the Act. SEIU 1199,
New Jersey Health Care Union, is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The following individuals are supervisors at Victoria:
Vincent Tufariello Chief Operating Officer
Michael DelSordo Administrator
Evelyn Savarese Director of Nursing
Rita Burke Assistant Director of Nursing
Melissa Guglielmo Assistant Administrator/Admini-
strator
Ricardo Munoz Director of Environmental Services
Anthony Merez Dietary Supervisor

2 The record is hereby corrected so that on page 34, line 21, Mr.
Jasinski is asking the question and at line 22, Mr. Gardner has made an
objection; on page 44, line 15, the date should be the 28th; on page 57,
line 2, the correct exhibit is “GC-11”; on page 108, line 18, the correct
date is August 18; on page 117, line 2, the correct date is August 5; on
page 162, line 7, the first two words should read “the impetus”; on page
294, line 17, the last word is Berbiglia; on page 306, line 20, and there-
after, the correct name is Morris Tuchman; at page 512 the correct
name of the witness is Marcia Cover; on page 581, line 1, the phrase
should read “they are ephemeral pieces”; on page 676, line 24, the
record should show that Mr. Jasinski was questioning the witness; on
page 709, line 18 and thereafter the word “parody” should be replaced
by the word “parity”; on page 722, line 6, the first three words should
read “was less than”; on page 731, line 17, the second word is
“fleshes”; on page 764, line 21 and thereafter, the correct abbreviation
is “DON”; on page 1062, line 13, Mr. Gardner conducted the cross-
examination; on page 1084, line 16, Mr. Jasinski voiced the objection;
on page 1094, line 25, Mr. Gardner rested on behalf of General Coun-
sel; on page 1116, line 10 and thereafter, the correct term is Most Fa-
vored Nations Clause.
WAYNEVIEW CARE CENTER 1095
The Union has been recognized as the collective-bargaining
representative of employees of Victoria in the following appro-
priate unit:
All full-time and regular part-time CNAs, housekeeping,
laundry, and dietary employees employed by the Employer at
its Matawan facility, but excluding all other employees in-
cluding managers, statutory supervisors and guards within the
meaning of the Act.
The most recent collective-bargaining agreement between
the Union and Victoria had an expiration date of March 31,
2005. During the course of negotiations the parties extended
the contract term to May 31, 2005.
The following individuals are supervisors at Wayneview:
Vincent Tufariello Chief Operating Officer
Margaret Nolan Administrator
Nancy Ziccone Director of Nursing
Leeah Develez Assistant Director of Nursing
John Larina Director of Housekeeping
Tom Gioeni Food Service Director
The Union has been recognized as the collective-bargaining
representative of employees of Wayneview in the following
appropriate unit:
All full-time and regular part-time CNAs, housekeeping,
laundry, and dietary employees employed by the Employer at
its Wayne facility, but excluding all other employees includ-
ing managers, statutory supervisors and guards within the
meaning of the Act.
The most recent collective-bargaining agreement between
the Union and Wayneview had an expiration date of March 31,
2005. During the course of the negotiations the parties ex-
tended the contract term to May 31, 2005.
The course of the collective-bargaining negotiations is rele-
vant to the resolution of most of the issues in the case. A brief
outline of a few events will be helpful when considering the
detailed evidence discussed below. Collective bargaining ne-
gotiations were held separately for Wayneview and Victoria for
some period of time from February until April 2005 when the
parties agreed that both contracts should be negotiated at the
same table. The employee bargaining committees composed of
unit members for, respectively, Wayneview and Victoria at-
tended the negotiations along with the representatives of man-
agement and the Union. At all times Vincent Tufariello was
the chief spokesperson for management with respect to both
contracts. Justin Foley began as the chief spokesperson for the
contract covering Wayneview. Odette Machado began as the
chief Union spokesperson at Victoria but eventually Justin
Foley became the chief spokesperson for the Union when the
negotiations were combined. In July Foley left the Union and
Larry Alcoff became the chief Union negotiator. Union presi-
dent Milly Silva determined the overall strategy for the negotia-
tions but she was not consistently involved in most of the ses-
sions. In April the State of New Jersey informed both Wayne-
view and Victoria that they must have in place a contingency
plan to prevent disruption of services to patients in case of a
strike or other “reportable event.” Administrator Margaret
Nolan began to prepare such a plan for Wayneview which in-
cluded advertising for replacement employees in case of a
strike. On August 12, 2005 the Union sent 10-day strike no-
tices to both Wayneview and Victoria. The negotiations cul-
minated in a marathon session with two mediators present on
August 18 and 19, 2005. On August 22 employees at Wayne-
view voted to engage in informational picketing for one day
and the employer was notified accordingly. On August 22
employees at Victoria voted to engage in a five day strike.
Wayneview employees who attempted to work their usual
shifts on August 23 were not permitted to work. Victoria em-
ployees who attempted to return to work on August 28 after the
employer was notified that the strike was over were not permit-
ted to work. There is a dispute as to the mechanism for and
timing of the eventual return to work of most of the employees
at the two facilities. At some point the Union learned that
Respondents had promulgated what was termed a last best offer
and eventually the terms of this offer were implemented at the
two facilities. The Union denies that impasse was reached in
the negotiations and has continued to demand negotiations and
to seek information.
B. The Early Negotiations at Wayneview
Justin Foley was Assistant to the President of SEIU 1199
from April 2004 until July 15, 2005. His duties included nego-
tiating contracts and helping with campaigns. Foley was the
chief Union negotiator for the Wayneview contract from the
first meeting in February 2005 until he left the Local’s employ
in July. Foley testified that there were two or three bargaining
sessions at Wayneview before the negotiations were combined
with the Victoria contract talks. Wayneview Administrator
Margaret Nolan and Chief Operating Officer Vincent Tufariello
were present on behalf of Wayneview. Foley stated that after
two or three meetings he telephoned Tufariello and said the
Union was interested in bargaining the contracts for Wayne-
view and Victoria together. Tufariello agreed and a time was
set for the next session.
Nolan recalled that the first bargaining session took place on
February 23, 2005 and consisted of a discussion of the health-
care industry and of the impact of the Medicare cuts. At the
second meeting on March 11 the employer responded to the
Union’s information request and Tufariello went over details of
the information provided. On March 18, according to Nolan,
the Union made a proposal at the bargaining table.
Tufariello, the chief negotiator for both Victoria and Wayne-
view, could not recall how many sessions took place in which
Wayneview was discussed separately but he thought it was less
than five.3 Tufariello testified that at some point Foley re-
marked that if Tufariello were involved in both negotiations it
would be an efficient use of Tufariello’s time to combine the
negotiations for Wayneview and Victoria. Tufariello agreed
and combined negotiations began in April 2005

3 Tufariello testified that he is employed by Atrium Administrative
Services, Inc., a management company overseeing the operations of
several skilled nursing and assisted living facilities in New Jersey.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1096
C. The Early Negotiations at Victoria
Odette Machado was called by Respondent to testify about
the negotiations at Victoria. Machado had worked for an affili-
ated union in New York. In 2004 she was named director of
administrative organizing of the Union in New Jersey. Her
duties included supervising five organizers, training organizers
and delegates, dealing with problems concerning Union funds
and assisting Union president Milly Silva. Machado testified
that she helped with negotiations and handled some negotia-
tions. Machado ceased her employment with the Union in June
30, 2006 after an admittedly “ugly” internal Union election
where she unsuccessfully challenged Silva for the presidency.
Machado has formed a new union called Local 707 HEART.
Machado testified that her relationship with the new union is
structured so as not to interfere with her entitlement to unem-
ployment insurance. Machado denied that she has called her-
self president of 707 HEART and she denied that she had as-
sumed the responsibilities of president of 707 HEART.
Machado related that employees in some facilities represented
by Local 1199, including Wayneview, have filed petitions to be
represented by 707.4 In other facilities which currently have a
collective bargaining agreement with Local 1199, Machado
stated, 707 HEART is seeking to represent the employees.
Machado has spoken to Local 1199 unit members but she de-
nied that she wrote to them or that anyone else connected with
707 had written to them. However, Machado identified a letter
to employees at a facility where an effort was underway to
decertify Local 1199 and “to join us.”5 The letter, signed by
“Odette Machado, President Local 707 HEART”, describes 707
as a union with experienced leaders including “President Odette
Machado” who have defended employees from injustice caused
by Silva. Machado testified that she felt passionately about the
election and she wanted to convince employees to vote for 707
over 1199.
Machado met Larry Alcoff in 2003. Alcoff, an employee of
the Service Employees International Union, handled special
projects, he coordinated strategy to increase state funding to
health care facilities and he worked with Silva on negotiating
strategy. Before April of 2005 Alcoff and a representative from
the International Union conducted training in negotiations.
Silva and Alcoff set the agenda for negotiations in New Jersey.
They wanted Union negotiators to work from a set of proposals
that had to do with rates of pay, health benefits, pension funds,
parity increases and the issue of “no-frills” employees.6 Alcoff
instructed negotiators not to deviate from the guidelines which
called for a wage increase of 4% per year for three years, a
benefit fund contribution of 22.33% of payroll and a formula
for converting no-frills employees to benefited employees.7

4 The Wayneview petition was filed on September 27, 2006 by
Marjorie Barnett, who testified in the instant proceeding as will be seen
below.
5 Machado stated that the letter was sent to employees at Emerson or
Harborside or both.
6 The no-frilled employees, also called non benefited employees, had
opted to forego benefits otherwise provided by the employer in return
for a higher hourly wage.
7 The benefit fund in which the Union’s members would participate
is known as The Greater New York Benefit Fund, or GNYBF.
Alcoff described a group of facilities that employed Attorney
Morris Tuchman as a bargaining agent and had signed a master
agreement known as the Tuchman contract. Alcoff said that it
would cause problems for the Union to sign an agreement with
lesser conditions than the Tuchman contract because that
agreement contained a most favored nations clause. Machado
believed that the Tuchman contract was signed in May of 2005.
Machado described herself as the lead negotiator for Victo-
ria. She testified that the unit employees at Victoria were most
interested in wage increases, paid leave issues, the uniform
allowance and health benefit increases. Machado said she led
the negotiations for four or five sessions in March and then
Foley took over as the lead negotiator for both Victoria and
Wayneview. According to Machado, the four or five sessions
of the Victoria bargaining conducted before the negotiations
were combined with Wayneview resulted in some tentative
agreements with the employer. Machado testified that the Vic-
toria negotiations began after March 31, 2005 but she identified
a letter dated March 3 which indicated that negotiations had in
fact begun in late February and were to continue on several
dates in March.
Tufariello identified a Union document given to him at the
first Victoria bargaining session entitled “2005 contract propos-
als (1st session 3/2/05).8 It contains no specific wage demand.9
Tufariello wrote his notes on the Union proposal and later sent
a letter to Machado asking for calculations to support her
statement that Victoria’s health insurance costs would double if
it participated in the Union fund.
Tufariello could not recall when the parties met after March
2 but he stated that he met several times with Machado before
the negotiations were combined in April. Tufariello estimated
that there were between 12 and 20 bargaining sessions between
the parties.
On direct testimony elicited by Counsel for Respondent
Machado testified that one day Foley told her the “good news”
was that negotiations for Victoria and Wayneview were being
combined and the “bad news” was that they would not be able
to get the health benefits they wanted. Tufariello was not giv-
ing these health benefits at Wayneview and they would not be
able to get them at Victoria. On this occasion Foley informed
Machado that he wanted to lead the negotiations from that point
so that he could do the strategy for the health benefits. Foley
asked Machado for her paperwork showing where they were in
the Victoria negotiations. Foley said he would merge the pa-
perwork to reflect one set of proposals for the combined nego-
tiations. Machado recalled that she attended a few sessions
after the negotiations merged.
On cross-examination by Counsel for the General Counsel
Machado changed her testimony in a significant way. Machado
stated that Foley did not tell her he was taking over as the lead
spokesperson for both the Victoria and Wayneview negotia-

8 This is Respondent’s Exhibit #10. Due to the multiplicity of
documents received in this proceeding I shall identify many by Exhibit
number for ease of reference.
9 The document says the wage demand is attached but no such at-
tachment was introduced and no testimony was offered to explain the
discrepancy. I conclude that there was no wage demand attached to the
document.
WAYNEVIEW CARE CENTER 1097
tions. Machado said Foley did not ask for her paperwork and
he did not say he needed her notes. Instead Machado and Foley
met in Foley’s office and they jointly compiled their proposals.
I do not find that Machado is a reliable witness. First,
Machado often contradicted herself. Second, throughout her
testimony Machado stated that she could not recall various
subjects relating to the bargaining because she had no docu-
ments to consult. However, Respondent called Machado as its
witness and Respondent was in possession of many documents
concerning the negotiations, including documents subpoenaed
from the Union. Thus, Machado had access to written propos-
als and correspondence and her memory could have been re-
freshed before she testified or while she was being questioned.
Machado is thus unreliable on dates, issues in the bargaining
and other subjects about which she was questioned, and the
fault is not attributable to the General Counsel or the Union.
Third, Machado was not truthful about her role as president of
Local 707 HEART and she tried to avoid testifying candidly
about her attempts to supplant the Union herein with her new
union. As a result, I shall not credit Machado’s testimony
where it is contradicted by more reliable evidence.
Much testimony was introduced by Respondent about
Machado and whether she was or was not on an equal footing
with Foley. This included the testimony of Machado and other
witnesses. I am unable to see that any resolution of this point is
relevant to my decision of the issues in this case. Machado was
not involved in the negotiations when they reached a crucial
stage in August 2005. Respondent seems to advance a theory
that the Union reneged on certain agreements reached with
Machado in the early days of the Victoria bargaining but, as
will be seen below, Respondent’s own witnesses offered clear
testimony that contradicts this theory.
Machado recalled that there were tentative agreements at
Victoria on the uniform allowance and some type of leave ar-
rangement, but Machado could not recall the specific provi-
sions of the leave agreement. Machado said that wages were
still open. The employer had said it could give the percentage
the Union was asking for but “then with the benefit fund situa-
tion it would be an economical factor and we couldn’t finalize
that”. Machado stated that the parties had not reached agree-
ment on economic issues when she was still active in the nego-
tiations. However Machado also stated that there had been
agreement at Victoria on the subject of holidays, personal days,
vacations and sick leave. It is not clear why Machado did not
consider this paid time off to be an economic issue.
Respondent called Josephine Ortiz to testify about the nego-
tiations. Ortiz, a senior aide at Victoria, is a Union delegate
and attended most bargaining sessions as a member of the em-
ployee committee. Ortiz testified that Machado and the com-
mittee had come to an agreement on “everything” in the bar-
gaining with Tufariello by April 11. Ortiz maintained that the
parties had agreed to a healthcare provision and wages of 4% a
year for three years. Ortiz described the healthcare agreement
as the affordable healthcare that the employees were asking for
although she did not know what plan this was. Ortiz said the
agreement was to reduce the cost for a family from $185 to
$85, to reduce the cost for a child and parent from $85 to $65
and to reduce the cost for single coverage to $20. I do not
credit Ortiz that the parties had reached agreement on health-
care and wages at Victoria by April. Neither Tufariello nor
Machado contended that they had reached agreement on wages
and health insurance, nor had any General Counsel witnesses
testified to this effect. Ortiz’ assertions are contrary to the
documentary evidence herein. I find that Ortiz’ testimony
about the course of negotiations while Machado was the chief
representative for the Union at Victoria is not reliable. Ortiz
also testified about many other subjects. Because I find that
she is not reliable I shall not credit her testimony where it is
contradicted by more trustworthy evidence.
D. Off the Record Meetings
Machado described an off-the-record meeting at which Tu-
fariello told the Union that Victoria did not get the same fund-
ing from the State as a nursing home and the employees could
not have as much as nursing home employees.10 Tufariello
said, “This is all we have and all we can offer.” He said, “I can
tell you the total amount that we can offer for the contract and
then see what you can do with that. I will sit with you and see
if we can work out the benefit fund or the wages, whatever you
would want to get in the contract but I can’t do any more.”
Machado attended this meeting with Alcoff, Foley, Tufariello
and two other management representatives. The participants
were trying to work out figures using different approaches for
the parity increase and rates for the benefit fund and wages.
Silva and Alcoff said they could not deviate from their de-
mands for health insurance, wages and parity due to the most
favored nations clause. Machado could not recall when this
session was held but she stated it was after the negotiations for
the two facilities had been combined. Machado said that she
eventually stopped attending the negotiations because she no
longer “enjoyed” the process and she stopped talking to mem-
bers of the bargaining committee.
Tufariello described two off the record meetings between the
parties. The purpose of the first such meeting held in May,
attended by himself with Nolan and DelSordo and by Silva,
Foley, Alcoff and Machado, was for everyone to understand the
economic issues in the demands for health insurance, wages,
parity and no-frills employees. At this meeting Tufariello said
the demands involved significant amounts and he would have
to consider them. Foley said the most favored nations clause in
the Tuchman agreements required the Union to “get us to that
point at some time during the contract period.” Foley tried to
determine the cost of the Union’s economic proposal in light of
what his records showed was the current cost to the employer.
Tufariello identified the document prepared by Foley to show
the current and future costs of the various benefits and the Un-
ion proposals. The current cost to the employer per employee
year of single health care coverage is shown as $3,653. Tu-
fariello was unable to recall the significance of any of the other
figures on the document.
Tufariello held a second off-the-record meeting with Foley
and Alcoff in early June. Foley recapped the changes mandated
by the most favored nations clause. Tufariello could not recall
whether Foley said the additional cost would be one million

10 This assertion is not otherwise explained.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1098
more per building or one million more for both facilities. The
parties discussed the increase in state reimbursement in every
year. Alcoff said Tufariello should find the money or he would
put him out of business.
Tufariello said that even after the off-the-record meetings he
did not have a clear understanding of the Union’s economic
proposals. However, Tufariello testified that after he learned at
the second off-the-record meeting that remaining in the em-
ployer’s health insurance plan was less expensive than partici-
pating in the Union’s fund he never had occasion to change his
mind about this conviction. He always continued to believe
that the Union fund was more expensive.
Tufariello was confused about the timing of the off-the-
record meetings. He stated that they took place after the Union
presented its demands in March and before the Union made any
additional economic proposals, apparently forgetting the Un-
ion’s economic proposal of May 10 which is described below.
He said the purpose of the meetings was not to discuss any
specific demands but only to discuss general issues.
Foley recalled two off-the-record meetings between Union
and management. Machado attended the first meeting. Foley
had calculated what he thought the Union’s proposals would
cost and he and Tufariello discussed the assumptions that un-
derlay his calculations. Tufariello took notes on a print-out at
the first meeting. The Union was attempting to secure the em-
ployer’s agreement to participate in the Union health plan.
Tufariello did not say this was off the table but he did say it
would be difficult. Tufariello pointed out that if no-frills em-
ployees became benefited by moving into the plan it would be
very costly. At the off-the-record meetings the parties tried to
determine where they were flexible. Foley tried to explore
different ideas and Tufariello said he would consider them but,
according to Foley, when they returned to the bargaining table
it turned out that Tufariello had not considered the ideas pre-
sented by the Union.
Alcoff testified that he participated in the negotiations with
Wayneview and Victoria beginning in June 2005. The first
meeting he attended was off-the-record with Foley and Tu-
fariello. The purpose was to look at the numbers and see if
there was a way to package a deal. The participants discussed
the components of the economic proposals and discussed “what
if” scenarios. There was an undefined pot of money. Alcoff
said it was clear that the Union would have to be flexible to get
a deal. In the talk about wages, health insurance, pension and
no-frills employees the Union knew that “all things could not
be done at once under any scenario.”
E. Combined Negotiations: Foley and Tufariello
Foley testified that after Tufariello agreed that the Victoria
and Wayneview negotiations should be conducted at the same
table Silva told him that he should be the lead negotiator for
both contracts.11 Foley recalled that there were “internal ten-
sions” in the Union. Foley spoke to Machado about the role he
would play in the talks, making it clear that he would introduce
the sessions, he would run the agenda, he would present pro-

11 Foley recalled that he attended four or five combined negotiations
for Wayneview and Victoria.
posals and he would lead the caucus for the Union team. Foley
stated that he reviewed some proposals and notes given to him
by Machado and he reconciled the status of negotiations at the
two facilities as he sat at the table with the employer represen-
tatives. Silva confirmed Foley’s description of the situation.
Foley created a document before the first combined session
on April 11, 2005 which reviewed the differences in the two
contracts and highlighted where there was already similar lan-
guage in the two documents.12 Foley made handwritten notes
on the document during the session. Foley testified that if there
had been tentative agreement earlier on some language for
Wayneview the parties would use the same language at Victoria
so that there would be “almost a master contract” at the two
facilities. This was indicated on the document with arrows and
other symbols. The Union withdrew its meals proposal at Vic-
toria; there was no corresponding meals proposal at Wayne-
view. Foley marked PTO, (paid time off), in the margin next to
the three categories of “holidays, personal days and vacations”.
The status of these subjects was marked TA at Victoria and
there was a different proposal at Wayneview. Foley said that it
was recognized that the current contracts at the two locations
had big differences in PTO. The parties viewed this area as
being open for discussion and they knew the language from
Wayneview could not be copied into the Victoria contract.
Before the April 11 session, according to Foley, he had spoken
to the employer representatives about the disparity and the em-
ployer understood that PTO would be revisited. Foley testified,
“The employer agreed that . . . we could reopen these things
without accusing us of bad faith bargaining or regressive bar-
gaining.”13 Tufariello confirmed this testimony. He said that
Foley wanted to revisit the tentative PTO agreement at Victo-
ria. Machado was at this meeting and she did not object. Tu-
fariello stated that he reluctantly agreed to reopen the PTO
issue at Victoria.
Foley testified that the Union’s first full economic proposal
was presented by the Union on May 10 in a document entitled
“Economic Proposal 5–10–05.”14 Some of the language came
from a common proposal that the Union had made in negotia-
tions with other employers. Prior to preparing this proposal
Foley consulted with Alcoff, Silva and the employee commit-
tees and possibly Machado. The Union proposed that by the
end of the three year contract all facilities would have 8 paid

12 This document is Respondent’s Exhibit #19.
13 Foley’s notes on the document were not complete. After the bar-
gaining session Foley typed up his understanding of the discussions and
sent this to Tufariello. The latter would comment on the Foley’s notes
and in this way a working document was created.
14 A copy of this document was introduced as Respondent’s Exhibit
#24. It bears notations in Tufariello’s handwriting.
WAYNEVIEW CARE CENTER 1099
holidays, 11 paid sick days and 3 paid personal days. Wages
would increase by 4% on May 1 of each of three years. Parity
increases would require that by the end of the contact, house-
keeping and dietary workers would have a minimum rate of
$10/hr and CNAs would have a minimum rate of $11/hr. The
health insurance rate for participation in the Union fund had
been raised to 22.33% by the fund trustees. The training and
education fund would increase to 1/2% and the alliance fund to
½% while the legal fund stayed at the same rate. There was a
formula for pension payments setting the rate at 2% and mak-
ing changes in later years of the contract, including a rate of
1.7% in cases where the employer was not currently paying for
a pension. A lengthy proposal dealing with per diem and no-
frills employees contained a formula to reduce the use of this
class of employees until their time would constitute 15% of
hours worked at a facility. Present no-frills employees could be
grandfathered if they wished. A handwritten addition to the
proposal required a decrease from a 40 hour week to a 37-1/2
hour week at Victoria with a 6% increase in wages.
Foley was an observer, but not a participant, in the Tuchman
negotiations. Foley identified the full table of contents and the
ratification information sheet distributed to unit employees at
one facility covered by the Tuchman agreement.15 Foley ex-
plained that the Tuchman agreement served the purpose of
showing how some common problems had been solved at other
facilities. Foley had not been instructed that the Victoria and
Wayneview contracts had to mimic the language or terms of the
Tuchman agreement. In fact, Foley stated, his proposals dif-
fered in various respects from the Tuchman contract. The Un-
ion’s wage demands were different, the PTO demand was less
than what was provided by the Tuchman contract and the
Tuchman contracts do not have a legal services fund. The
health insurance rate is the same because these are set by the
trustees of the fund and not by the Union. Foley testified that
the Union’s goals were established in December 2004 and that
he had to check with Silva before accepting an offer from the
employer that was less than the standard goal.
Foley contradicted Machado’s recollection about the import
of the Tuchman agreement and its most favored nations clause.
Foley testified that he never told Tufariello that he could not
agree to a proposal because it deviated from the Tuchman con-
tract. He never said his hands were tied. Foley denied discuss-
ing the most favored nations clause at the bargaining table and
he never heard Alcoff mention this while he was present.
However, Tufariello testified that Foley repeatedly main-
tained that he was bound to the most favored nations clause in
the Tuchman agreements and that he could not deviate on the
issues of health insurance, the no-frills employees and wages.
Tufariello said that Foley made these statements when the ne-
gotiations began at Wayneview.
Alcoff has negotiated about 15 contracts with New Jersey
employers and he was the Union’s spokesperson for the
Tuchman coordinated bargaining involving 20 nursing homes.
Alcoff testified that the most favored nations clause has existed
for years and it is always inserted into the contract with the first

15 These are General Counsel’s Exhibits 68 and 69 and they are more
accurate than partial documents introduced earlier by Respondent.
New Jersey employer to sign with the Union in any negotiating
cycle. The most favored nations clause provides that the net
economic impact of agreements with other employers cannot be
less than the net economic impact of the contract containing the
most favored nations clause. The employer has the burden of
proof with respect to showing the net economic impact of the
various contracts and bears the burden of proof to show a viola-
tion of the clause.
Before the bargaining session of June 8, 2005 Foley prepared
a page showing the status of various issues and whether they
had a major or minor economic impact. The open items of
major economic impact were hours (at Victoria), wages, PTO,
and the health insurance fund at both facilities. Items of
smaller economic impact included Union activity, probationary
period, and the non health related funds.
Alcoff testified that he and Foley had discussed the progress
of negotiations; Foley’s major concern was economic, espe-
cially the large number of non-benefited “no-frills” employees
and the cost of health insurance. Foley told Alcoff that Tu-
fariello was “a numbers guy” and that the Union should there-
fore be creative with numbers. If the Union could show Tu-
fariello that the cost was not extreme then Tufariello would be
amenable to a solution to the no-frills issue. Accordingly, the
Union conducted a sidebar discussion with Tufariello before a
scheduled June 30 bargaining session. Alcoff, Foley and Tu-
fariello discussed spread sheets that showed the costs of various
items. Alcoff proposed back loading some costs to the end of
the contract to make it less expensive.
Alcoff testified that he sat in on part of a June 30 bargaining
session. Foley was the chief negotiator for the Union and Silva
was present. Tufariello, DelSordo and Nolan were there on
behalf of the employer. The Union discussed the hours at Vic-
toria where employees worked an 8 hour day and a 40 hour
week in contrast to the 7-1/2 hour day and 37-1/2 hour week at
Wayneview. The Union proposed a transition to a shorter
workweek for the Victoria employees with a wage multiplier
provision so that their weekly earnings did not change. Tu-
fariello replied that he would agree to shorten the week but not
to raise the hourly rate and the Union said it would live with the
status quo. At this meeting the Union raised the issue of a
newspaper advertisement for replacement workers. The Union
said it had no intention of calling any job actions at that point
and asked why the employer was seeking replacement workers.
The Union remarked that the wages promised in the ad were
higher than those being earned by unit employees and it asked
how current employees could get those wages.
Before Foley left the Union’s employ on July 15 he prepared
an exit memo showing the status of negotiations at Wayneview
and Victoria. Although the memo refers to “attached finan-
cials” these are not in evidence.16 Foley’s memorandum high-
lighted the major difficulty posed by the Union’s health insur-
ance demand. It said, “The entry into the health insurance is

16 Foley said these were an Excel file that he and Tufariello worked
on together to be sure they shared the same cost assumptions. Foley
testified that Respondent’s Exhibit #20 did not contain his handwriting
and that he had never seen R #20 before the hearing. In fact, R #20 is
Alcoff’s document.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1100
difficult because of the transition from no frills to frills. . . .
[T]hey save roughly $4000 for every employee that doesn’t
take benefits, averaged between the two places. Consider that
Wayneview is 75% no frills. . . . Vinny is convinced that what
we’re looking for is too expensive. . . . Once it comes time to
spend money, they don’t want to do it. After lots of idea ex-
ploring and such, they came back with their incremental move.”
F. Combined Negotiations: Alcoff and Tufariello
Alcoff testified that his first bargaining session as the Un-
ion’s chief negotiator took place on August 5, 2005. Tufariello,
Nolan and DelSordo were present, as was the employee com-
mittee. Silva looked in for part of the meeting.
At the August 5, 2005 negotiating session the Union pre-
sented a document entitled “Comprehensive Economic Counter
Proposal”.17 Alcoff said this was a modified economic pack-
age. The discussion attempted to clarify the open and settled
issues. The Union wage demand now provided five increases
ranging down from 3% to 2% over the life of the contract, with
a provision for raising the wages of the lowest paid employees,
the so-called parity provision. This wage proposal was less
costly than prior Union demands. The Union abandoned its
demand to convert the 40 hour work week at Victoria to a 37-
1/2 hour week with a make whole raise. There was extensive
language relating to participation in the Union’s benefit fund
and the effective date was later than in prior demands. The
pension proposal was reduced. Language was included provid-
ing details relating to the demand on no-frills employees as
outlined in the May 10 proposal. The demand for a legal fund
was withdrawn subject to agreement on the Union’s benefit
fund. Alcoff testified that the bargaining committee at Victoria
did not want to maintain the present PTO system and the Union
proposed improved paid time off benefits at that location. Al-
coff stated that the August 5 proposal was based on his off the
record discussion with Tufariello and Foley. Alcoff used cost
information provided by the employer to calculate the cost of
health insurance, wage increases and the proposed changes in
the status of non-benefited employees. Alcoff had used Tu-
fariello’s assumptions about how many employees would elect
to remain non-benefited in calculating costs of health insurance.
Alcoff had also consulted with the employee committees before
preparing the Union’s August 5 demands. The committee
thought the wage demands were too low. Some committee
members were not concerned with health insurance because
they were non-benefited or had other insurance through a
spouse. The Union’s position was that the committee had to
consider all the workers in the unit, not just themselves, in set-
ting health insurance goals.
Alcoff recalled that as of August 5 the unsettled items were
health insurance, no-frills employees, wages, PTO, the pension
and participation in various benefit funds.
Alcoff testified that on August 5 Tufariello handed him a
wage proposal, a PTO proposal for Victoria and a training pro-

17 This document was introduced into evidence as General Counsel’s
Exhibit #12 and, with Tufariello’s handwritten notes, as Respondent’s
Exhibit #12.
posal.18 Tufariello marked the items he considered tentatively
agreed to. The wage proposal, based on prior discussions be-
tween Foley and Tufariello, showed that there was tentative
agreement on work in a higher classification, merit increases,
direct deposit and transfer to a higher grade and conceptual
agreement on the wages of no-frills employees. The em-
ployer’s wage proposal provided a 4% increase in the first year
and 1.5% increases in the second and third years. Wages of no-
frills employees would be $1.50 higher than those of benefited
employees.
Tufariello inaccurately testified that from March to August
the Union had demanded a 21% contribution rate to the benefit
fund but that now the rate was raised to 22.33%. In addition,
Tufariello at first testified that the Union’s no-frills proposal
had not changed but then he stated that he told Alcoff the new
proposal was regressive. Alcoff replied that Tufariello did not
know what he was talking about.
Another bargaining session took place on August 9 with the
usual representatives and the employee committees. The Union
presented two written proposals; one dealt with the Victoria
PTO system and was responsive to the employer’s August 5th
proposal on PTO and the second was a new successorship arti-
cle occasioned by rumors of a sale.19 Alcoff explained that the
PTO proposal was a reduction in the August 5 Union demand
for vacation, holiday, sick days and personal days. Further, the
effective date of certain accruals was pushed further into the
term of the contract. Tufariello stated that the language in the
current contract dealt with succcessorship and was sufficient
and Alcoff promised to consider that provision.
Alcoff testified about a sidebar discussion of economic is-
sues held on August 9. Tufariello informed Alcoff that the two
issues of most concern to him as a stumbling block to achieving
a collective-bargaining agreement were the no-frills employees
and the health insurance. Tufariello said it was important that
employees have the right to choose whether to be benefited or
no-frills and he was opposed to the Union proposal that would
phase down the number of no-frills employees. Tufariello said
employees preferred the $1.50 extra hourly wage and they
would not change their status. Alcoff and Tufariello deter-
mined the cost of some scenarios relating to this discussion: if
employees did not elect to become benefited then health insur-
ance costs would not increase drastically. Alcoff quoted Tu-
fariello as saying, “controlling the benefit structure and the
relationship to the health insurance plan was more of an obsta-
cle than the economics when it came to the health insurance
proposal.” By this time the PTO issue was narrowed down to a
question of how many days the employees would be entitled to.
The employer proposed adding 50 cents to the starting wage
rates at Victoria and possibly some addition to all wages at the
beginning of the contract period. Tufariello did not contradict
Alcoff’s testimony about this meeting. Significantly, Tufariello
did not dispute Alcoff’s testimony about his prediction that
many employees preferred to remain non-benefited and Tu-

18 The Victoria PTO proposal is General Counsel’s Exhibit #13. The
wage proposal is General Counsel’s Exhibit #16.
19 The PTO proposal is General Counsel’s Exhibit #14 and the suc-
cessorship article is #15.
WAYNEVIEW CARE CENTER 1101
fariello did not deny that he told Alcoff that that it was of prime
importance to the employer to maintain its own health and
benefit plan and that the cost factor was less of an issue.
Alcoff recalled that the first time Tufariello suggested me-
diation was either August 9 or 11. Alcoff disagreed with the
suggestion. He thought the parties were narrowing the issues
and there was momentum to the negotiations. Both parties had
moved on wages and the off-the-record conversations had been
productive. However, by the end of the August 11 session
Alcoff was not opposed to mediation.
At the August 11 meeting Alcoff received employer coun-
terproposals and these were discussed in detail with the em-
ployee committees present.
Alcoff described his presentation to the employer at the Au-
gust 11 meeting. He had a large flip chart on an easel and he
showed the possibilities for bargaining in two columns marked
A and B. Column A was to continue with the bargaining as
presently constituted and to try to narrow the differences on
each issue. Column B called for determining the total “num-
ber” the employer was willing to spend over the three years and
to see how the money could be distributed in different ways.
Tufariello did not like the column B approach; he wished to
continue negotiating issue by issue.
Tufariello recalled this meeting as one where Alcoff said if
he knew how much money the employer wanted to spend he
would figure out how to divide it up. Alcoff still insisted on
participation in the Union health plan and he cited the most
favored nations clause.
At a sidebar meeting on August 11 Alcoff suggested to Tu-
fariello that it might help if he brought counsel to the table in
order to “get another set of eyes” on the issues. Tufariello
denied this conversation took place. Later, Alcoff learned that
Respondent would have counsel present next time. At some
point the parties discussed asking mediators to join the discus-
sions. Tufariello testified that he told Alcoff that mediators
should be brought in because the parties were at impasse. Al-
coff responded that the parties were not at impasse. The record
is unclear how the presence of mediators was obtained for the
meeting after August 11.
On August 18, 2005 Tufariello was accompanied to the ne-
gotiations by Nolan, DelSordo and Dennis Alessi, Esq. Alcoff
and Silva were present for the Union along with some staff
representatives and the two employee committees. Also in
attendance were New Jersey State mediator Wellington Davis
and Federal mediator James Kenny. Alcoff met first with the
employee committees and explained the import of the 10-day
strike notices and the role of the mediators.
When the meeting began Alcoff gave the employer the Un-
ion proposals for Wayneview.20 The underlined language rep-
resented Union proposals given at the session. Alcoff also
presented the Union proposals for Victoria.21 Alcoff explained
that the PTO language in the Victoria document as typed was
inaccurate and he corrected the language as he went through
both proposals with Alessi. Alcoff explained to Alessi that
there was a problem with the employer’s wage proposal: al-

20 This is General Counsel Exhibit #17.
21 This is General Counsel Exhibit #18.
though Tufariello had initially said that increases would apply
to starting rates this position had changed on August 11.
After the initial presentation the parties went to separate
rooms. Alcoff recalled that he and Alessi and the mediators
had several conversations to clarify certain issues. Late in the
evening the mediators asked the Union to draft a proposal for
submission to the employer.
Alcoff and Silva worked on a handwritten proposal which
was explained to the employee committees and then handed to
the mediators and to Alessi.22 The Union’s proposal on wages
was new; it no longer had specific dates and percentages for
wage increases but only required to get to certain rates as of
March 1, 2008, at the end of the contract term. The Union
explained to the mediators that it was willing to be flexible with
respect to wages. The Union continued to request the estab-
lishment of new minimum wage rates, but these would be ef-
fective in March 2008. The Union also changed its health in-
surance proposal. For the first time it abandoned its demand
that the employer participate in the Union’s fund and it agreed
that employees could be covered by the existing Aetna plan or a
similar plan. The Union agreed that dependent coverage could
be phased in. The Union agreed to an opt-out feature if the
employee had other coverage. Alcoff explained that this was a
significant move to accommodate Tufariello’s wish that the
employer control benefits and not be a participant in the Union
plan. Up to this time the Union had been demanding fully paid
benefits for employees from the first day of the contract term
but now the Union agreed to delay fully paid coverage. In the
first year the employer would pay for single coverage and cov-
erage for family members would be phased in later. The Union
plan thus provided for payments by the employees. This would
not necessarily be an expensive proposal if Tufariello were
right that many employees preferred to remain non-benefited in
exchange for a higher wage rate. The Union changed its de-
mands on PTO, delaying the implementation of an extra sick
day at Wayneview and reducing the number of sick days for
new employees with less than two years on the job in order to
pay for the additional day of sick leave in the contract. The
Union abandoned its no-frills proposals and agreed to accept
the employer position of free choice for employees without any
mandated diminution in the number of no-frills employees.
The Union agreed to the employer’s proposal on the training
fund for the first 30 months of the contract, and asked for the
Union proposal to be implemented for the last six months. This
was a new position. Alcoff summed up by stating that although
in early August the Union was still trying to obtain benefits
similar to those it had obtained with some other employers, by
August 11 and 18 it was not longer trying to achieve those
goals.
Alcoff testified that after midnight he and Silva met with the
mediators and Alessi who gave him a proposal written by Tu-
fariello.23 The mediators explained the Respondent’s proposal
which Alcoff stated had positive developments and promise.
The wage proposal now increased the minimum rates. The
medical proposal had two significant changes. There was a

22 This is General Counsel Exhibit #5.
23 This is General Counsel Exhibit #6.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1102
partial frills proposal which permitted employees to receive an
extra 75 cents on their hourly rate with PTO or some health
insurance and there was an increase in the Victoria wage rate
for non-benefited employees of $1.50/hr. The employer pro-
posed a reduction in the employee costs for health insurance
and suggested phasing in a better provision later in the contract
period. The new PTO proposal increased the allotment for
Victoria, and Alcoff thought this was “in the ballpark.” The
employer responded to the Union’s desire to afford no-frills
employees an opt-out window. The Respondent now agreed
that there would be a 2% pension contribution at both facilities
by March 2008, a move that Alcoff characterized as “signifi-
cant.”
After Alcoff discussed this new employer offer with Alessi
and the mediators, Alessi informed them that the “owners”
were in Florida, that Tufariello was in touch or would be in
touch with the owners, and that he was not sure how much
further they could go. Alessi said his side wanted to leave be-
cause they were tired. It was now about 3 am on August 19.
Alessi said his firm had an outing that weekend and that he
would not be available by phone to Alcoff. He would not give
Alcoff a phone number, but he said Alcoff should communicate
through mediator Davis. Alessi said he would speak to Tu-
fariello over the weekend, and certainly on Sunday, and try to
get him to think about the Union proposals. Alcoff gave Alessi
and Davis his contact numbers. Alcoff said he thought there
was an opportunity to get a contract and that he would come
back from his home if the parties could engage in collective
bargaining. Alcoff and Silva thought that Tufariello had made
some movements and that there had been progress. They hoped
to continue the negotiations over the weekend. They did not
withdraw the strike notice and they hoped that a contract could
be reached.
After receiving the employer’s proposal on the morning of
the 19th Alcoff discussed it with the employee bargaining
committees. He outlined its provisions on a flip chart. Alcoff
testified that he does not believe it is a good policy for medi-
ated proposals and off-the-record discussions to be copied and
available wholesale. The proposal was not something that
could be submitted for a ratification vote. The parties were still
negotiating and there was still room to move.
Tufariello could not recall as much about the meeting of Au-
gust 18–19. His direct testimony did not mention that Alessi
was present. Tufariello said that the mediators asked for his
best and final offer. Tufariello said that he responded with a
proposal that encompassed the key economic components that
he characterized as still unresolved; wages, health insurance,
and issues related to no-frills employees. He called this a final
proposal although he did not write language indicating final
proposal on the document. Tufariello said he thought the Un-
ion proposal of August 18–19 was more expensive than the
August 5 comprehensive proposal. He could not recall how he
came to this conclusion. But he recalled that the Union pro-
posed to change the starting wage for a grade 1 employee from
$7.50 to $9.38, a more than 12% increase over three years.24
Tufariello thought the Union’s August 18-19 proposal on health

24 I note that the $9.38 figure was in the August 5 proposal.
insurance was more expensive because theoretically every em-
ployee could take family coverage.
Nolan testified that she and Tufariello discussed the negotia-
tions that night. They both had a sense that “we were really
getting somewhere.” Tufariello made changes to the em-
ployer’s position with respect to the PTO and the health insur-
ance contributions. The Union came back with a proposal
agreeing to the existing form of health insurance but asking that
it be paid for by the employer. Nolan thought that health insur-
ance cost about $1000 per month and she and Tufariello were
disappointed. Nolan did not explain where she got this figure
and she did not testify about the actual document given to her
during the negotiations. Nolan said she would have been avail-
able to continue the negotiations over the weekend. Nolan
apparently believed that Respondent gave the Union its final
offer on the night of the marathon bargaining, August 18–19;
she stated the last best offer was given to the bargaining unit,
“it was that marathon night, if not before.” I do not credit
Nolan’s description of the events of August 18–19.
On cross-examination Tufariello acknowledged that Alessi
was the Respondent’s legal representative for the August 18–19
bargaining. Tufariello stated that Alessi may have had some
discussions with the mediators at which he was not present.
Alcoff could not recall that there was any discussion at the
bargaining table on August 18–19 concerning temporary re-
placement employees. He did not see a work schedule with a
list of temporary replacements.25
Over the weekend following the August 18–19 negotiations
and on Monday morning August 22, Alcoff telephoned Davis
to see whether he had heard from Alessi. Davis said he had not
had any contact with Alessi. Later in the afternoon of August
22, while driving his car, Alcoff spoke to Davis who informed
him that Alessi had faxed a proposal. Davis said he would fax
the proposal to Alcoff and when Alcoff reached his office on
the evening of August 22 the fax was there. The two page
document with a fax receipt sheet attached shows that two
pages were received by the union at 4:19pm from one of the
mediators.26 Based on the notations at the top of the two page
proposal it appears that the two pages were faxed to Alessi by
Tufariello and that Alessi then faxed the proposal to a mediator
for transmission to the Union.
Alcoff compared the August 22 employer proposal to the
employer’s proposal handed to the Union through the mediators
on the night of August 18–19 and found that it was regressive.
The new health insurance offer was less generous because it
required employee contributions much greater than had been
proposed in the August 18–19 offer. The earlier offer required
contributions of $150 declining to $125 for family coverage
whereas the August 22 offer required a contribution of $185.
The earlier offer required a contribution of $50 to provide cov-
erage for a husband and wife or parent and child whereas the
new offer was $85. In the August 22 document the 2% pension
contribution offer was taken off the table and the 75 cent partial
frills offer was withdrawn. Alcoff testified that the August 22

25 He could not recall whether he had seen such work schedules at
the facilities prior to this.
26 This is General Counsel Exhibit #19.
WAYNEVIEW CARE CENTER 1103
offer was “an in your face sort of move that seemed bizarre and
not helpful.” Alcoff emphasized that nowhere on the document
was there any statement that the August 22 offer was a final
offer. Indeed, the concept of a final offer had never been men-
tioned in the mediator-assisted bargaining.
Tufariello testified that he could not recall whether he sent
the August 22 offer to the mediators or whether Alessi had
done so, but after looking at some documents he stated that
Alessi faxed the offer to mediator Davis.27 Tufariello said the
offer of August 22 was indeed the employer’s final offer. The
documents Tufariello consulted at the hearing were contained
in a packet sent to the Union’s attorney, Ellen Dichner, Esq., by
Alessi on September 12, 2005. The events leading to that cor-
respondence will be discussed below.
It will be evident from the description of the negotiations
given above that Tufariello did not recall many details and had
a very vague recollection of the specific offers, their costs and
the timing of the discussions. Even with documents in front of
him, Tufariello could not explain the figures and notations
made during negotiations. As to some matters Tufariello testi-
fied contrary to the contemporaneous documentary evidence. I
do not credit Tufariello’s testimony about the course of the
negotiations. I find that Foley and Alcoff had a more precise
recollection of the negotiations and that they had a detailed
knowledge of the movement made by the parties. I shall credit
their testimony. I note that Tufariello did not deny Alcoff’s
testimony about the employer’s stated goals and priorities.
G. The Employee Votes and Concerted Activities at
the Facilities
In April 2005 Nolan had received a letter from the New Jer-
sey Department of Health and Senior Services addressed to
administrators of various facilities. The letter stated that the
Department had been notified of “possible strikes” against
nursing homes and it reminded the administrators that a strike
was a “reportable” event and that nursing homes must have in
place a contingency plan in place to deliver services. The
forms accompanying this letter provided illustrations of report-
able events including murder, fire, abuse, missing residents and
“impending job action, strike action or staff walk out.” For
each reportable event a set of forms was to be filled out. Nolan
testified that when she received the April communication from
the State she put together a contingency plan for Wayneview
which she later memorialized in a submission to the State.28
Nolan arranged for advertisements seeking temporary replace-
ments to run in the local newspapers. These ads ran from April
to August and Nolan got a “huge response.” Nolan and Tu-
fariello decided to offer more than the going rate of pay be-
cause those responding to the ads were being offered only tem-
porary work and they “might never work at all.” Nolan in-
formed those who responded that they might never work at all
and that they could be replaced by the original employees “at
any time.” Nolan gathered information about the replacement

27 These documents are contained in General Counsel Exhibit #48.
28 The contingency plan for Wayneview is Respondent’s Exhibit
#22.
employees “so that we would be able to . . . do what we needed
to do to bring them in, if there were actually a job action.”
Silva testified that on August 12, 2005 the Union sent 10 day
notices to Wayneview and Victoria pursuant to Section 8 (g) of
the Act. Each letter, identical in the substantive language,
stated that it was sent respecting the relevant unit employees,
and that:
You are hereby notified that the aforesaid Union shall begin
to engage in a strike, picketing, or other concerted refusal to
work activities beginning at 7:00 AM on Tuesday August 23,
2005. . . .
The notices were sent after discussions with the employees
about the course of the bargaining and the need to send a strong
message to the employer that the Union and the employees
wanted progress in the negotiations. Alcoff summarized the
state of the bargaining to the committee members at each loca-
tion. He suggested that they determine the strongest action that
members were willing to take. He wanted to send a message
that a job action was not inevitable but that a deal was possible.
The Union circulated petitions for signature at each of the fa-
cilities asking whether the employees were willing to strike in
order to obtain a settlement of the collective-bargaining con-
tract. The 10 day notices were sent when the Union had ob-
tained signatures from at least a majority of unit members at the
respective locations. However, strikes would not be called
without a further secret ballot vote by the unit employees. Al-
coff testified that it was clear from the meetings that the
Wayneview unit members would not ultimately vote to strike.
Shop steward Marjorie Barnett testified that after the ten-day
notice was sent she and other Wayneview Union stewards went
to Nolan’s office to tell her that they did not want to go out on
strike. They said the people were scared because of what they
were hearing about a possible strike and they said the employer
should give them a good contract. They said all had been on
the job a long time but had no medical benefits. Barnett denied
saying that the Union was forcing employees to strike; she said
the people did not want to go out on strike. Barnett was a forth-
right and cooperative witness. I shall credit her testimony in
this proceeding.
As soon as Nolan was informed of a possible job action she
sent in the reportable event form to the State. She contacted the
people who had responded to the ads for temporary work and
she and other managers compiled work schedules. A work
schedule for a minimum of two weeks was completed to com-
mence August 22.
Silva testified that on Monday August 22 the Union con-
ducted meetings at both Victoria and Wayneview to determine
whether there would be job actions.
Alcoff spent the early part of August 22 at Victoria meeting
with unit employees. He discussed the progress of negotiations
as of the morning of August 19; he said there was movement
and there were opportunities but that employee action was
needed “to push the employer further along.” Alcoff and the
employees discussed Union efforts to obtain affordable health
insurance, wage increases, a pension plan and improved PTO.
The Union did not request a vote on the employer’s offer given
to the mediators because the bargaining was still continuing and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1104
there was no final offer. Alcoff helped supervise a secret ballot
strike vote among the employees. He told them that if they
overwhelmingly voted to strike the Union would conduct a five
day strike. Union organizer Neal Gorfinkle was present when
the vote was taken. He confirmed that a majority of employees
voted in favor of a five-day strike.
A similar meeting was conducted at Wayneview. The
Wayneview employees decided to conduct one day of informa-
tional picketing during their respective non-working hours.
On August 22 Silva sent a letter to Tufariello by certified
mail and fax stating:29
This is a follow-up to the Union’s Section 8 (g) ten-day notice
dated August 12, 2005. Please be advised that the Union ac-
tivity in my letter will be limited to informational picketing at
the Wayneview facility, to begin at 7:00am on Tuesday, Au-
gust 23, 2005, and will terminate at 4:00pm that day. The
picketing by employees will take place on their non-working
time and all employees will report to work at their usual re-
porting time and work their regular schedules.
That evening, at 9 PM, Alessi faxed a letter to Silva which
stated:30
I am in receipt of your letter which was faxed to me at 4:55
PM today. As you know, upon receipt of your strike notice,
the State of New Jersey required Wayne View to develop a
contingency plan to insure sufficient staffing for the uninter-
rupted care of its residents. Pursuant to that requirement,
Wayne View hired temporary replacements. The names of
these replacements were recently placed on the two week
work schedule which was posted in the facility, as per its
standard scheduling practices. No names of unionized em-
ployees were placed on this schedule. These replacement
workers were directed to report to work, pursuant to this
schedule, beginning tomorrow morning, based on the union’s
Section 8 (g) ten-day strike notice. . . . Accordingly, there is
no work for your members at Wayne View. Please advise
your members not to report to work tomorrow morning and
until further notice by Wayne View.
Silva was present at Wayneview at about 5 am on August 23.
A police officer and patrol car were situated at the bottom of
the driveway. The officer had a list of those who were permit-
ted to enter and he refused admittance to those whose names
were not on the list. The employees conducted informational
picketing that day only, concluding with the end of the day
shift. On August 24 Silva was present with the employees but
there was no picketing and no marching, bullhorns or other
manifestations. Some employees who had not been scheduled
to work the day before but who expected to work on the 24th
attempted to enter the facility but they were turned away.
Margaly Pierre worked as a CNA at Wayneview for seven
years ending in October 2006. She was on a scheduled vaca-
tion from August 15 to 22, 2005. Her regular schedule called
for her to return to work on Thursday August 25. She reported

29 The letter, General Counsel Exhibit #7, was sent to various people,
including Alessi.
30 The letter is General Counsel Exhibit #8.
at 2:50pm but was told by the police officer that her name was
not on a list to work. When Pierre insisted that she was sched-
uled to work and explained that she had just returned from va-
cation the officer permitted her to enter the building. Pierre had
some discussion with Director of Nursing Nancy Ziccone and
Assistant Director of Nursing Leah Develez, both of whom
welcomed her back to work, then Ziccone left the area for a
minute.31 Ziccone then returned to tell Pierre that the lawyer
said he did not want anybody who was a member of the Union
to work in the building. Ziccone instructed Pierre to leave say-
ing, “Go. I don’t want you in the building.” Pierre went home.
Neither Ziccone nor Develez were called by Respondent to
testify herein. Pierre was a convincing witness; in addition, her
testimony is uncontradicted on the record and I shall credit it.
Nolan’s testimony about the employer’s refusal to permit the
Wayneview employees to work as of the morning of August 23
was confusing and full of inconsistencies. I note that Nolan
described herself as the top manager at Wayneview. Nolan
testified that the majority, if not all, the bargaining unit em-
ployees at Wayneview did not want any job action. When
asked who made the decision not to permit the employees to
work Nolan replied that the decision was made by the employ-
ees explaining that, “they had a job action that was in full
force.” She said the employees knew there was a job action so
they did not come to work. She stated that employees saw the
listing of temporary help prior to “not being there.” Then
Nolan testified that a few people came to work on August 23.
However, Nolan also said she spoke to one employee, whose
name she could not recall and who was in tears, but that no one
else requested to come to work that day. Then Nolan said she
could not recall if anyone came to Wayneview saying they
were going to work. Finally Nolan testified that she or Ziccone
gave the police a list of temporary workers and informed the
officers that other employees could not come in to work at
Wayneview. It is evident from this summary of Nolan’s testi-
mony that her answers were obfuscatory and glaringly inconsis-
tent. I find that Nolan showed an unwillingness to recall and
testify fully to the facts about which she was being questioned
and I do not credit her testimony.32
Nolan also testified that Wayneview employees were not
permitted to work on August 23 because the facility had tempo-
rary staff lined up and a minimum commitment of two weeks
had been made to them. A verbal offer had been made to the
temporary workers.
Josephine Ortiz, a witness called by Respondent, testified on
direct examination by Counsel for Respondent that after the
strike vote at Victoria she had a conversation with director of
Nursing Evelyn Savarese. Savarese was posting a list of tem-
porary employees and their start times and dates near the time

31 This discussion is dealt with below.
32 Respondent’s Brief quotes from the transcript where the ALJ
states that Nolan was “convincing” and had a “thorough knowledge” of
the matter about which she had testified. This comment related only to
Nolan’s testimony about the actions she took in the spring of 2005 in
response to the State of New Jersey’s requirements that nursing homes
prepare for reportable incidents. The ALJ’s comments do not relate to
Nolan’s testimony on many other subjects all of which has been care-
fully read and evaluated.
WAYNEVIEW CARE CENTER 1105
clock. Savarese told Ortiz that Victoria would hire temporary
employees but, “If we decided not to go out on strike those
employees would not be coming, we would still be there.”
Ortiz expanded on her testimony on cross-examination stating
that before the strike both Savarese and Administrator Melissa
Guglielmo told her that if the employees decided not to go on
strike they would be able to work, the employer could tell the
temps “never mind.”
Alcoff was present at Victoria in the early morning of Au-
gust 23 when the night shift ended. As the employees exited
the facility, they set up a picket line.
Alcoff testified that after three days he informed the em-
ployer that the strike would end after the fifth day. Alcoff’s
letter dated August 26 was addressed to DelSordo.33 It stated:
This is to inform you that all Victoria House employees cur-
rently on strike unconditionally offer to return to work on
Sunday, August 28, 2005 beginning with the shift starting at
6:00 a.m. We shall provide you a list of all returning workers
upon request.
After this letter was delivered to the employer Alcoff re-
ceived a telephone call from Alessi who said that the Union
could not make an unconditional offer to return to work be-
cause the company had made its last best offer. Alcoff replied
that Respondent had not made a last best offer, but Alessi dis-
agreed saying that it was contained in the fax. Alcoff said the
fax was just a proposal. Alessi stated that the fax was sent to
mediator Davis with a cover sheet but Alcoff denied seeing a
cover sheet. Alcoff said no one ever told the Union the fax was
a last best offer. Alcoff maintained that the old contract was
still in effect and the employees could return subject to those
conditions. He said the Union planned to return to the bargain-
ing table because there “is a deal to be had.” Alessi responded
you “will force Tufariello to permanently replace. That’s what
he’s talking about. You need to know that.” Alcoff said if the
employees were not permitted back to work it would be a lock-
out; it was illegal to replace locked out employees permanently.
At 9:31 pm on the 26th the Union received a six page fax
from Alessi.34 Alessi’s letter disputed that the Victoria em-
ployees were making an unconditional offer to return to work.
Alessi noted that the Union was not accepting the August 22
offer faxed by the mediator, which Alessi characterized as the
employer’s last best offer, and that the Union wanted to con-
tinue negotiating. As a result Victoria was declining the em-
ployee’s offer to return to work. The letter continued:
From its perspective SEIU is still on strike and, consequently,
Victoria health will continue to operate with temporary re-
placement workers and any SEIU members who, of their own
volition, choose to cross it picket line. Also, please be ad-
vised that starting on September 6, 2005, Victoria Health will
implement its “last best offer” and will begin hiring perma-
nent replacements for the striking SEIU members.
The second page of Alessi’s transmission indicated a “cc” to
Tufariello. The third page was a fax cover sheet from Alessi’s

33 The letter is General Counsel Exhibit #9.
34 The reply is General Counsel Exhibit #10.
firm showing that three pages were being faxed to mediator
Davis. No date was filled in on the form. The cover sheet
contained a handwritten note to Davis from Alessi stating that
attached was “management’s last best offer. Please relay same
to union and call with its response.” The fourth and fifth pages
were the same two-page document that the Union had received
from the mediator on August 22. The sixth page of the trans-
mission was the same fax cover sheet from Alessi to Davis
described above, but with the information at the top that the
transmission was not completed to the mediator’s number.
I note that there was no documentary evidence introduced
and no testimony by anyone from Alessi’s office or the media-
tor’s office that the cover sheet was successfully faxed to the
mediator and/or successfully faxed to the Union before August
26. Thus the cover sheet with the statement that the offer was a
last best offer has not been shown to have been sent to and
received by either the mediator or the Union before Alessi sent
it to Alcoff on August 26.35
Silva testified that the first time the Union was informed that
the August 22 employer two page proposal was the last best
offer was late in the evening of the 26th.
Silva was at Victoria after 5 am on August 28 with Alcoff
and a number of employees who were attempting to return to
work. A police officer and patrol car blocked the driveway.
DelSordo stood with the officer and the two consulted a list,
telling employees that if they were not on the schedule they
could not return to work. Union representatives told DelSordo
that the unit members were there to work. Alcoff said that the
employees were there to work pursuant to Alessi’s letter,
quoted above, that permitted unit members to come to work “of
their own volition.” DelSordo replied that if they were not on
the schedule they could not work. Alcoff asked how the em-
ployees could get on the schedule, but DelSordo did not re-
spond to this questions. Silva asked DelSordo whether the
members were locked out or permanently replaced. DelSordo
left the area and walked over to a place on the grounds where
Tufariello was standing and observing. Silva saw DelSordo
speak to Tufariello. After a few minutes DelSordo returned and
said the people were not allowed to work. Silva asked her
question again and said, “Go ask Vinny.” DelSordo went back
to speak to Tufariello and he returned waving his arms in the
air, saying, “It’s a lock-out, it’s a lock-out.”36 The employees
changed their picket signs from strike to lock-out and returned
to picketing. I note that organizer Neal Gorfinkle, who was
present on this occasion, testified to the same effect as Silva
and Alcoff.
Geraldine Morgan, a CNA employed at Victoria, testified
that she attempted to return to work after the five-day strike.
The returning employees were met at the gate by a police offi-
cer and DelSordo. After the officer asked Morgan her name he
at first directed her to enter the facilities but then told Morgan
to leave or she would be arrested. When the employees asked
DelSordo what was going on he said he did not know and they

35 Neither Alessi nor mediator Davis testified herein, and no one
from their offices testified as to the various mail transmissions.
36 DelSordo did not testify herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1106
demanded that he ask Tufariello. Eventually DelSordo told the
employees that they were all locked out.
Senior Aide Josephine Ortiz, who testified as Respondent’s
witness, stated that she was present on August 28 when all the
Victoria employees tried to go back to work. The employees
were not let in. Ortiz testified that the employees were told to
call their supervisors; however, Ortiz did not say who issued
this instruction or how or when she received it. On August 29
Ortiz spoke to Director of Nursing Savarese and she also spoke
to DelSordo. Ortiz asked DelSordo why the employees were
not back in the building and why the employer had not accepted
the Union’s proposal. DelSordo told Ortiz that the employer
had accepted the Union’s proposal and he handed Ortiz a copy
of Alessi’s August 26 letter to Alcoff, with the August 22 “last
best offer” attached. These documents are described above, and
I note that the letter states that the employer would operate with
its temporary workers and unit members who cross the picket
line. The letter says nothing about a manner of placing Victoria
employees back on the schedule so that they could return to
work. I also note that, contrary to Ortiz’ testimony, Victoria
never accepted the Union’s proposal. I conclude that Ortiz’
recollection is inexact and confused. I shall not credit Ortiz
about the events of August 28 and 29. I also do not credit her
that all the employees were told to call their supervisors to get
back on the work schedule. Ortiz testified that she and
Savarese called all the unit members and told them that if they
wanted to work they should contact their supervisors and they
would be put back on the schedule. Ortiz did not name anyone
she had contacted in this manner. I do not credit Ortiz that she
called all the unit members. I have found that she is not a reli-
able witness and, not only did her testimony on this subject lack
any specificity but no other witnesses testified to being called
by Ortiz. Savarese did not testify herein so there is no credible
evidence that Savarese telephoned anyone on August 29 or
before September 6 to inform them how to return to work.
Some employees were called back, as is shown by other testi-
mony, but the record does not permit a finding that “all the unit
employees” were notified by Victoria of the way to get back on
the schedule for September 6. Ortiz herself was back at work
by September 4. She stated that some employees were back at
Victoria on September 3, but she did not identify them.
On August 31, 2005 Nolan wrote to Silva stating that on
September 6 at 6 am Wayneview would implement the “last
best offer” that Tufariello had faxed to Alessi on August 22.37
Nolan testified that she sent a copy of the letter to the Wayne-
view employees with the last best offer attached because six to
ten employees had told her that did not now know what the
final offer was. Then Nolan changed her testimony to say that
employees did not approach her about the final offer but that
she heard “rumors” that employees never got the final offer. At
this point Nolan and Tufariello decided to give the document to
employees.
On September 1 Alcoff wrote to Alessi informing him that
when the Victoria employees reported to work on August 28
they were told that they were locked out. On September 3 Al-
coff wrote to Alessi informing him that the employees at both

37 This is General Counsel Exhibit #11.
Wayneview and Victoria were prepared to return to work on
Tuesday, September 6 at 6am to the same jobs that they left
under the terms of the expired contract. This letter asserted that
the Victoria and Wayneview employees had offered to return to
work before the Union was notified of the employer’s last best
offer and at a time when the terms of the expired contract were
in effect. Alcoff maintained that the parties were not at im-
passe and that the Union was prepared to offer a counterpro-
posal. The Union repeated its request for bargaining dates.38
H. Request for Information and Bargaining
On August 30 Alcoff wrote to Alessi requesting information
about the employer’s last offer and asking for dates for negotia-
tions during the week of September 6 and subsequent weeks.39
Alcoff testified that the Union had never seen the Aetna health
insurance contract and had never seen the provisions applicable
to non-unit employees referred to in the last offer. The Union
wanted to see the promissory notes and loan documents re-
ferred to in the training proposal. The Union wanted informa-
tion about the work force because there had been changes since
bargaining began. Alcoff testified that the information was not
provided. Alessi responded that some information had been
given to the Union when negotiations began and that other
information was not available. The Union made a further re-
quest for information on September 12 for details concerning
employees performing bargaining unit work from September 6
forward, a copy of the current schedule for each department and
unit and a copy of all materials describing terms and conditions
of employment for unit employees beginning September 6.40
Alessi replied on October 3 giving some information about
employees performing unit work, stating that the work sched-
ules were posted and could be copied by the shop stewards and
saying that the working conditions were those of the expired
contract as modified by the last offer.41 Alcoff wrote to Alessi
on October 12 stating that the information provided on October
3 was incomplete and inaccurate and that the Union still wanted
all the information it had requested.42 The request for informa-
tion and for bargaining was renewed in a letter from Alcoff to
Alessi on January 19, 2006. On February 8, 2006 Alessi re-
plied stating that the parties had reached impasse after the all
night mediation session and that Wayneview and Victoria had
“properly proceeded to implement their last best offer.” Alessi
asserted that the employer had provided all the information
requested.43
Nolan testified that in response to information requests from
Foley in February 2005 Respondent had provided the Union
with a copy of the summary plan for health benefits and fringe
benefits. Although Nolan did not so testify, I assume that the
plan was the same for Victoria. There was no testimony about
requests for information concerning Victoria.

38 These are General Counsel Exhibits #21 and #36.
39 This is General Counsel Exhibit #20.
40 This is General Counsel Exhibit #23.
41 This is General Counsel Exhibit #24.
42 This is General Counsel Exhibit #32.
43 This is General Counsel Exhibit #34.
WAYNEVIEW CARE CENTER 1107
I. Further Meeting Between the Parties
Alcoff testified that he and Silva attended a bargaining ses-
sion on September 19 with mediator Kinney and Alessi. The
employee committee was present but Alessi refused to meet
with them. Alessi met with Silva and Alcoff. Alessi had the
two pages which he characterized as the employer’s last best
offer. Alessi told the Union that if they accepted the offer and
if the Union withdrew the pending charges at the NLRB then
41 Victoria employees would be let in to work. Otherwise,
Alessi said, the employees would lose their jobs and be perma-
nently replaced.44 Alcoff asked some questions about the last
best offer. Alessi replied, “You understand English, you’re a
smart guy” and then Alessi left the room. There were no fur-
ther negotiations between the parties.
J. Attempts to Return to Work on September 6
Wayneview
Silva was present at Wayneview at 6 am on September 6
with a number of Wayneview employees who were attempting
to return to work. Two managers came out and asked her why
she was there. After Silva explained that the employees wanted
to return to work the managers went back into the facility.
Then a police car with two officers arrived and the officers
went into the building. The police then came outside and asked
Silva for her identification and asked her what she was doing
there. Silva explained that she was there to accompany the
employees and to represent them in case of problems. Eventu-
ally the officers informed Silva that they had asked Nolan and
Nolan had told them she did not want the Union on the prem-
ises and that Silva would have to leave. Silva left.
Marjorie Barnett a CNA at Wayneview for 16 years went
back to work on September 6. While waiting outside the build-
ing she was informed by Silva that she should have received a
letter saying she should call her supervisor if she wanted to
return to work. Barnett had received no such letter. Nolan
appeared at the door and said she would admit only two dietary
workers. Then she returned and said Barnett and others could
go sit in the staff dining room. Barnett went inside with six or
seven employees, including Dennis Dunn, Marcia Cover, An-
gela McDermott, Domingo and others whose names she could
not recall. Nolan addressed the employees saying that she did
not want any kind of unapproved behavior and she did not want
the employees to have gatherings in the hallways. Some em-
ployees were told they could not stay and work that day, in-
cluding Cover, Dunn, Blanca Pagan, Clara and Domingo.
Barnett received a letter the next day; she saved both the let-
ter and the envelope in which it came.45 The envelope is
clearly postmarked September 6, 2005 although the postage
meter which was used to stamp the envelope was set for August
31. Thus the documentary evidence shows that the post office
received the letter on September 6.46 The letter received by

44 The charges related to instructions to remove Union paraphernalia,
threats and assistance with a decertification petition. These and other
charges are discussed below.
45 These are General Counsel Exhibits #37 and #38.
46 August 31, 2005 fell on a Wednesday. September 6, 2005 was the
Tuesday after Labor Day.
Barnett was from Nolan and was addressed to “All Wayne
View District SEIU 1199 NJ Members”. It was dated August
31, 2005. The letter was as follows:47
Attached is a notice that was sent today to Milly Silva, Presi-
dent of SEIU 1199, New Jersey. A copy of this memoran-
dum and attachment are (sic) being provided to you to accu-
rately reflect and inform you of the content of our last best of-
fer, and that we will be implementing it on Tuesday, Septem-
ber 6, 2005
Any employee wishing to return to work at WayneView, be-
ginning on September 6, should contact their (sic) supervisor
by telephone and so advise.
Marcia Cover has worked in housekeeping at Wayneview for
six years on the 7am to 3pm day shift. On September 6, 2005
Cover was to report back to work after a scheduled vacation.
Cover entered the facility with all the unit employees after 6am.
She got her cart, assembled her supplies and began cleaning her
assigned areas. Cover recalled that the place was “a mess.” At
about 8am Cover finished cleaning her second assigned room
when Paul from maintenance and Leah Develez asked her if
she had received a letter. They took Cover to the office where
she also saw Ziccone and her immediate supervisor, Director of
Housekeeping John Larina. Develez and Ziccone asked, “Did
we call you? Did we write you?” Cover replied that they had
not and that she had been on vacation but was now returning to
work. Develez and Ziccone said, “We don’t need you any
more.” When Cover asked how come they replied that they did
not need her until they called or wrote. Paul escorted Cover out
of the facility. Later Cover received a letter recalling her to
work and she reported back as instructed on September 8.
Cover was certain that the letter did not tell her to telephone her
supervisor; the letter said return to work on September 8.
Margaly Pierre received a letter from Wayneview on Sep-
tember 7 and was called by staffing coordinator Christopher
Irizarry to return to work on September 8. Irizarry was asked
what mechanism existed for employees to return to work on or
after September 6. He testified that, “We wrote them a letter to
call or write saying you want to return.” Irizarry believed that
this letter was sent a few days before September 6.
Nolan testified that that employees could return to work pur-
suant to her letter dated August 31 if they contacted their su-
pervisors. She recalled that some employees returned on Sep-
tember 6. Nolan stated that employees came back to work
within 24 hours or less of receipt of the letter, “I’m thinking
that that’s the way that it went.” When all the Wayneview
employees had returned Nolan still kept the temporary employ-
ees on the premises and used “double staffing.” Within a hand-
ful of days the temporary workers were discharged.
Victoria
Union organizer Neal Gorfinkle testified that he was present
on the picket line at Victoria during the strike. Some employ-
ees reported that they had been called by supervisors and told

47 The attachment was a letter to Silva reiterating that the two page
management proposal of August 22 was the last best offer and that it
would be implemented on September 6 at 6 am.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1108
that they could come back to work if they put their names on a
list and were willing to cross the picket line. Gorfinkle said
some employees went back to work on the Labor Day weekend.
Gorfinkle walked into the building with the employees who had
not been called back to work on the morning of September 6
and when they got to the time clock they found that many time
cards were not in their accustomed places and the employees
could not punch in. Gorfinkle and the employees walked up
the hall to the reception area outside DelSordo’s office near the
front door of the facility. DelSordo came out and Gorfinkle
told him that the employees were there to work. DelSordo
replied that those employees who wanted to return had been
required to notify their supervisors prior to the Friday of the
Labor Day weekend. DelSordo was asked how the employees
could have known that. DelSordo said a letter had been sent to
all the employees instructing them to notify their supervisors by
Friday so they could return to work Tuesday. Gorfinkle had
never seen such a letter and he asked DelSordo to show him a
copy but DelSordo did not have a copy of the letter. Then Del-
Sordo announced that those employees who were not on the
schedule for that day had to leave or he would call the police.
The Union asked about the status of the employees and whether
they had been permanently replaced. At this point the police
arrived and asked the employees to leave. Gorfinkle and the
employees remained while DelSordo left the area for a while.
When he returned he stated that the employees were perma-
nently replaced. DelSordo said the employees could place their
names on a list to be recalled as vacancies arose. The employ-
ees began to leave the area. Gorfinkle told DelSordo that he
would return during the lunch break to inform employees who
were working that day of the situation. DelSordo said it was
not a good idea for Gorfinkle to come back; he said access
would be discussed at the next contract negotiation. Gorfinkle
testified that a group of Victoria employees remained locked
out at least through the end of the year.
CNA Geraldine Morgan attempted to return to work Sep-
tember 6. She testified that DelSordo informed the employees
that they were not allowed to work and he threatened to call the
police. DelSordo told the employees that they had been perma-
nently replaced. Eventually police officers arrived and told the
employees to leave. The next day Morgan received a call from
a fellow employee who told her to call management so she
could return to work. However, Morgan was never recalled to
work and she never received a letter asking her to report to
Victoria. In October 2006 Morgan was called by a manager at
Victoria and asked if she would come back on an on-call ba-
sis.48 Morgan testified that Victoria would not put her on the
full-time schedule. Morgan recalled that in March 2005 when
she applied for a job and was hired by Victoria she had chosen
to be a benefited employee but now Victoria has informed her
that she is a no-frills employee and she is not receiving any
benefits. Management has informed Morgan that it could not
find her application form. I note that Respondent did not fur-
nish any testimony or evidence relating to Morgan’s status.

48 Beginning in February 2006 Morgan had obtained a full-time job
at another facility because she needed the benefits.
Agathe Guillaume, since September 2001 a CNA at Victoria,
testified that she attempted to return to work after the strike but
she was not admitted to the facility. Guillaume called Director
of Nursing Evelyn Savarese on September 10, 2005 asking for
her job back. Savarese told her she had called too late. Victo-
ria called Guillaume back to work on January 23, 2006. Guil-
laume testified that in August 2005 the Victoria personnel of-
fice had informed her that she had accumulated 9 holidays and
10 vacation days. Guillaume did not use any of this time before
the strike. Guillaume earned six sick days per year. After she
was called back to work Guillaume attempted to use a sick day
when she was ill. However, Victoria did not pay her. Carol in
the office told her that because she was out for five months she
would not have any time coming to her until 2007.49 Guil-
laume also testified that her regular uniform allowance which
used to be paid twice a year in May and November had not
been paid in May of 2006. I note that Respondent presented no
evidence concerning Guillaume.
K. Alleged Unlawful Activities at the Facilities
Interference with Union Activities
Marcia Cover, a shop steward at Wayneview, testified that
she handed out Union flyers, buttons and key rings, and spoke
to unit employees about the progress of negotiations in the
spring of 2005. Cover testified that Director of Housekeeping
John Larina called all the housekeeping employees to a meeting
in the laundry before the lock-out. He told the employees that
they could not wear Union buttons and could not talk about the
Union, and if they went on strike they would lose their benefits,
their sick time and a lot of things. Cover quoted Larina as say-
ing, “We have a staff of new people that they’re going to hire.
And we’re [the housekeepers] not going to have a job no
more.” Larina came up to Cover who was wearing a Union
button and told her that she could not wear it. When Cover
asked why, he said, “That’s how you’re going to get in trouble
if you wear the button.” Cover removed the Union button.
Larina did not testify herein. I shall credit Cover’s uncontra-
dicted testimony.
Nolan acknowledged that the employees had been told by
Larina not to wear the buttons. She told him not to do this
again but she did not impose any discipline on Larina for his
action. Nolan said that there was Union literature in the staff
dining room over the course of a few months and flyers and
slogans posted in the elevator and in the bathrooms. Before
August 22 about six unit members wore buttons saying how
many days left to the job action.
Marjorie Barnett, a shop steward at Wayneview, was the
most active Union supporter at Wayneview and she represented
employees at grievance proceedings and served on the negotiat-
ing committee in 2005.50 Barnett reported to employees on the
progress of negotiations and she rallied them to be strong. In
the summer of 2005 about 10 unit members wore stickers say-
ing, variously, “give us a fair contract”, “be fair to those who

49 Guillaume presented the documentary proof of her testimony and
this was admitted into evidence.
50 At the time of the instant hearing Barnett was no longer in support
of the Union and she had signed a decertification petition.
WAYNEVIEW CARE CENTER 1109
care” or just “1199” and a logo. Once the 8 (g) notice was
given some employees wore stickers counting down the num-
ber of days until August 23; these bore sayings such as “day
one” or “day two.” After Cover informed Barnett that Larina
had told her employees could be fired for wearing the stickers,
Barnett confronted Larina about the issue. He told Barnett that
Nolan had instructed that workers caught wearing stickers
would be fired. If they were not fired they would lose their
seniority. Barnett saw the stickers on the glass case in the din-
ing room that was meant to be the Union bulletin board. Bar-
nett did not see the stickers in the elevators. Once in July or
early August, Larina told Barnett that the housekeeping em-
ployees could no longer eat in the staff dining room. He said,
“It’s not me, it’s Margaret Nolan. She said that she don’t want
them to eat in the staff dining room because … that’s where the
Union goes to talk to the members. And she don’t want them
talking to the Union, otherwise they’re going to be fired.”
Neal Gorfinkle was an administrative organizer for the Un-
ion with responsibilities at Victoria. On Monday, June 27,
2005 Gorfinkle was at Victoria during the morning shift change
distributing material to unit employees to keep them informed
of the course of negotiations. Gorfinkle was speaking to unit
employees near the back door to the facility; this is adjacent to
the break room, the employee time clock and the kitchen door.
A unit employee pointed out a posting near the kitchen door.
Gorfinkle saw a letter affixed to the kitchen wall and he re-
moved it and copied it. The document stated:
Attn: All Staff
Due to the situation with the Union. (sic) The schedule will
stay as is no one will have their days changed. If you are
scheduled to work on the holiday you must come to work. If
you do not come in or call out it will be taken as your resigna-
tion. Anyone who calls out during a strike will be terminated.
Anthony M.
The parties stipulated that Anthony Merez was the dietary
supervisor at Victoria and Gorfinkle identified him as such
during the relevant time period. Gorfinkle told the employees
present that it was not proper or legal to threaten employees’
jobs if they were exercising their rights.
Geraldine Morgan was a CNA employed at Victoria. She
recalled that a 10-day strike notice was issued by the Union.
Several days before the strike occurred Morgan was standing at
the nurse’s station when Assistant Director of Nursing Rita
Burke came to the station. A nurse who was present asked
Burke why the employer did not give the unit employees what
they want. Burke retorted, “Why don’t they give me what I
want?” The nurse asked Burke what would happen if the
workers went out on strike. Burke replied, “They could all be
fired.” Respondent did not call Burke to testify herein.
Suspension of Barnett
Barnett returned to work on September 6, 2005. Nolan came
over and watched her get linens and equipment to clean the
rooms. Barnett addressed Nolan, “I hope I’m not back here for
you to harass me, so please if you want to fire me, just let me
go.” Nolan said, “No, no, no” and Barnett had no further prob-
lems the rest of the day. Barnett was out sick on the 7th, 8th and
9th returning to work on September 10. On September 12 Bar-
nett was called to a meeting with her supervisor Susan and
Ziccone and Develez. They gave her a document dated Sep-
tember 12 and titled first warning alleging that Barnett did not
report to the nurses’ station at the 7am start of the shift and
came to the nourishment room at 7:15 when report had already
begun. Barnett explained that she first went to look at all the
patients assigned to her to see whether they were OK. Then,
she waited for the usual page to proceed to the nourishment
room for morning report. The supervisors said that she was in
the dining room at 7am but Barnett told them to ask Mary who
saw her come from the patient’s room.
The next day Barnett was called to a meeting with Ziccone,
Susan and Develez. Nolan was standing in the doorway of an
adjoining office. Barnett was given three warnings dated Sep-
tember 6. One warning titled second warning alleged that Bar-
nett failed to make the bed of resident Joseph Ford and failed to
obtain a pressure relieving mattress for him. Another warning
titled second warning alleged that Barnett failed to put Ford
back to bed after his therapy and left him sitting in his room
facing his unmade bed. Another warning titled third warning
alleged that Barnett did not obtain the weight of Ford despite
repeated instructions. These warnings were signed by Depart-
ment Head Susana (last name illegible) and by Ziccone. Bar-
nett explained that when she came back to work on the morning
of September 6 she was shocked at the deteriorated appearance
of resident Joseph Ford. A nurse informed Barnett that he had
fallen and broken his hip. Ford’s bed was soaked, he had a big
wound in his back and he had been lying in a wet diaper.
Ford’s roommate told Barnett that he was happy to see her
because no one had been helping Ford to eat, they just put his
food down and left. Barnett explained that Ford’s bed had to be
wiped down. It could not be made up until it was clean and dry
and Ford could not be put back to bed until this was done.
Barnett explained that at that time the pressure relieving mat-
tresses were not stored at Wayneview and had to be ordered
from the maintenance department which would bring one to the
patient’s room. A CNA had no means of obtaining a mattress
on her own. Finally, Barnett explained that in order to weigh a
bedridden patient one must obtain a Hoyer lift and a clean pad
must be put on the lift before placing the patient on it. When
Barnett was asked by the nurse to weigh the patient she told the
nurse that she could not find a clean pad and the nurse replied
that the task should be left for the next shift.
At the grievance meeting of September 13 Barnett accused
the supervisors and managers present of retaliating because she
was involved with the Union. Nolan replied, “If you’re going
to talk to your supervisor like that why don’t you just do us a
big favor?” At this meeting Barnett was given a three-day sus-
pension and she served this. Barnett then filed a grievance and
attended a grievance meeting with Nolan. Some time later
Nolan told Barnett that she would be paid for the three days
because there were too many discrepancies in the write-ups.
Nolan testified that Barnett was the biggest Union supporter at
Wayneview. Nolan testified that she rescinded Barnett’s disci-
pline and restored her pay “because I don’t think there was any
intent on Marjorie’s behalf to not complete the work detail for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1110
that particular day. . . . [T]there were major obstacles in her
way that were precluding her from being able to do that.”
The Decertification Petition
Christopher Irizarry was promoted to Staffing Coordinator
for CNA employees at Wayneview on August 22.51 He testi-
fied that after August 22 CNA Eileen Rivas and many others
from the unit told him they wanted their jobs back. He replied
that it was out of his hands. At some point which might have
been as early as August 24 or later that week, Rivas called Iri-
zarry at work and asked him to come to the parking lot of
Kohl’s around the corner from Wayneview. Irizarry told Direc-
tor of Nursing Ziccone that Rivas wanted to meet him but that
he did not want to go alone because he knew she was a Union
rep and he did not want any problems.52 Ziccone suggested that
Irizarry take unit clerk Simone Henderson along when he went
to Kohl’s. Irizarry obtained permission from Ziccone to leave
the facility while he was on the clock without punching out.
When Irizarry and Henderson arrived at the Kohl’s lot there
were 20 or 30 employees waiting for them. Rivas gave Irizarry
a signed petition stating that the employees no longer wanted
the Union and they wanted their jobs back. While Irizarry
spoke to Rivas more people came up and signed the petition.
Rivas said some people were waiting to sign the petition in the
TJ Maxx parking lot. Irizarry and Henderson drove to the TJ
Maxx lot following Rivas in her car. Employees were waiting
there and Rivas handed them the petition to sign while Irizarry
stood by. After all the employees had signed, Rivas handed the
petition to Irizarry who drove back to Wayneview and gave the
petition to Ziccone. The next day employees called him and
asked whether the petition had worked and whether they could
have their jobs back. Irizarry replied that it was out of his
hands. Irizarry’s testimony about obtaining the petition and
delivering it to Ziccone while he was on paid work time is un-
contradicted and I shall credit it.
Margaly Pierre, who attempted to return to work at Wayne-
view on August 25 after her vacation was initially welcomed
back by Ziccone and Develez. After being admitted to the
building by a police officer Pierre asked the two supervisors
what was going on. Ziccone replied that a strike was author-
ized. Ziccone asked Pierre if she would work with Wayneview
or if she would work with the Union. Pierre replied that she
was a single mother who needed a job and she would choose
work. Ziccone told Pierre that she would call Simone and she
dialed a number, spoke into the phone and handed the receiver
to Pierre. Simone asked if Pierre would work at Wayneview
without the Union saying that Pierre would have health bene-
fits, paid vacation and PTO days. Pierre said that was OK.
Then Ziccone gave Pierre three pages which Pierre recalled had
some language to vote the Union out and contained the signa-
tures of various employees. Ziccone told Pierre to sign; if Pi-
erre wanted to work she must sign the paper. Pierre signed the
document. Nevertheless, as described above, Pierre was not
permitted to work until September 8. Pierre’s testimony was
uncontradicted and I shall credit it.

51 Irizarry had worked at Wayneview as a CNA for 4-1/2 years.
52 Rivas has not been identified as a Union representative herein.
Nolan testified that no one told her directly that employees
were trying to get rid of the Union. She knew that some em-
ployees went to the Board to decertify the Union but she did
not know when. Nolan acknowledged that Irizarry told her that
a CNA had asked him how to decertify the Union and Irizarry
also told her that some employees had signed a petition. Nolan
thought that the CNAs trusted Irizarry and she did not offer any
suggestions to him in dealing with the petition because it was a
matter between him and the CNAs.53 Nolan thought Irizarry
had the petition. Ziccone “may have offered” her the petition
but she wanted to keep peace and stick to business so she did
not take possession of it. Nolan testified that if employees have
to leave the facility during their working time they must punch
out.
A decertification petition was filed on August 25, 2005 in
Case 22–RD–1416.
L. Denial of Access to the Union
Victoria
Neal Gorfinkle testified that in the summer of 2005 he was at
Victoria almost every day. During regular business hours if
Gorfinkle wished access to Victoria he would inform Melissa
Guglielmo, the assistant administrator, of his approximate time
of arrival at the building as a courtesy. Gorfinkle testified that
he did not need permission to visit Victoria. Gorfinkle under-
stood that the Union had regular access to non-patient care
areas near the time clock and break room.54 Gorfinkle entered
the building through the office area entrance. Sometimes he
was asked to sign the guest register and sometimes this request
was omitted. Outside of regular business hours Gorfinkle en-
tered through the employee entrance near the break room and
the time clock. Occasionally Gorfinkle met with employees in
the area near management offices in order to prepare for a
grievance meeting. This was a rare occurrence. If Gorfinkle
intended to hold a formal meeting of employees during breaks
or shift changes he might ask management for early release.
Formal meetings required the prior approval of management.
Gorfinkle could not get employees off the floor without man-
agement consent. Gorfinkle cited the visitation clause in the
collective-bargaining agreement:
The Union Business representatives or the Union’s designees
shall have admission to all properties covered by this Agree-
ment to discharge their duties as representative of the Union
but not in any manner which unreasonably interferes with the
operation of the facility. . . . The Union may, upon the ap-
proval of the Administrator, conduct meetings on the prem-
ises provided said meeting is in a non patient care area and at-
tended by employees only during their non-work time.
As discussed above, on September 6 Gorfinkle was informed
by DelSordo that he should not come to Victoria to speak to the
employees. The next week Gorfinkle called Guglielmo twice
to request access to meet with employees. Guglielmo at first
told him to wait for the negotiations and then she told him not

53 At the time Irizarry was involved with the decertification effort he
had already been promoted to staffing coordinator.
54 The Union bulletin board is located in the break room.
WAYNEVIEW CARE CENTER 1111
to ask her again. On September 27, 2005 Guglielmo faxed a
letter to Union agent St. Hilaire concerning his request for ac-
cess. Citing the duty of Victoria to ensure the “quiet enjoy-
ment” of the facility by the residents, the letter continued:
The last time union officials were in the facility a major dis-
ruption occurred which resulted in Administrator Mike Del-
Sordo having to call the local police to escort those union of-
ficials and members from the building. These loud, very dis-
ruptive activities occurred while we were attempting to serve
breakfast to the residents. In addition there have been other
incidents when residents have been drawn into this labor dis-
pute. Including at least one incident where a resident, who
was lounging on the facility grounds, returned to the building
wearing a union button.
Because of these and other events, when union officials have
been disruptive and have drawn residents into this dispute, we
can no longer allow those officials, who are not employees of
Victoria House, on the premises. Accordingly, please do not
attempt to enter the premises tomorrow. If you do, I will be
forced to call the police.
Gorfinkle testified that since that day the Union has not been
granted access to Victoria to speak to the employees. Union
representative Danie Tarrow, who serviced the Victoria em-
ployees from November 2005 to the summer of 2006, testified
that Guglielmo instructed that the Union could only enter the
building when there was a scheduled grievance meeting.
Gorfinkle provided details of his September 6 walk with em-
ployees from the area where the time cards were kept to the
front of the facility where DelSordo’s office is located. Gorfin-
kle explained that the distance between the two points is about
20 or 30 yards. On the way to DelSordo’s office the employees
passed a nurse’s station. Behind the nurse’s station is a wing of
resident areas and the patient dining area. In order to get to the
DelSordo’s office Gorfinkle and the employees did not walk in
front of the dining room and did not walk in front of patient
areas. These are down the hall from the nurse’s station in the
side wing. Some residents congregate around the corner from
the administrative area which contains DelSordo’s office.
There is no evidence of the distance involved. Gorfinkle ac-
knowledged that the group may have been loud in trying to get
DelSordo’s attention in order to go back to work. Gorfinkle
could not recall if anyone was carrying a banner on September
6. As noted above, DelSordo did not testify herein. No man-
agement witness described this event. There is no evidence that
Guglielmo was present during the events of September 6.
I observed Gorfinkle carefully as he testified. He answered
forthrightly and was cooperative on cross-examination by
Counsel for Respondent. He did not seek to provide evasive
answers and I found his calm and professional demeanor to be
impressive. I credit Gorfinkle and I shall rely on his testimony.
Wayneview
Marvin Hamilton is the Union’s lead organizer at Wayne-
view. His duties include meeting with the unit employees,
educating the employees about their rights and handling griev-
ances. Before August 2005 Hamilton had a variety of access to
Wayneview. When he planned to be at the facility he would
use Nolan’s voicemail to inform her that he was on his way and
he would wave at the receptionist as he entered the building and
proceed to the break room or lounge where he usually met the
employees. Hamilton testified that the only occasion on which
Nolan ever told him not to come was when there was a problem
with a resident. Hamilton did not need management’s permis-
sion to visit the employee lounge and place information in the
Union bulletin board. Hamilton would often stop by to drop off
Union literature or answer some questions for employees. By
contrast, Hamilton stated, if he were planning to conduct an
“actual meeting” on the premises he would telephone Nolan
and tell her the start and end times of the proposed meeting and
make sure that the date and time met with her approval. The
Union visitation clause in the Wayneview collective-bargaining
agreement is the same as that quoted above for Victoria. Ham-
ilton said that the phrase “unreasonably interfere with the op-
eration of the facility” prohibits the Union from trying to re-
move employees from their assignments or from speaking to
them while they are on work time. Hamilton recalled that as
the contract negotiations intensified he was at Wayneview al-
most every day waiting to speak to employees in the break
room. At this time he was no longer calling Nolan to inform
her that he would be on the premises.
Hamilton was on vacation and he returned to work August
29. From that day when he attempted to gain access to the
Wayneview he was told that he could not come in. His admit-
tance was barred by the police on two occasions. When the
employees returned to work the Union was not permitted into
the building. Hamilton telephoned Nolan and asked whether
she was denying him access. Nolan said that Tufariello in-
formed her that Hamilton could not come into Wayneview.
Hamilton protested to Nolan that she knew him but she still
denied him the right to enter the building. Some time later an
employee was discharged and Hamilton wanted to enter the
facility to find out what happened. Nolan said he could not
come in and she called the police who turned Hamilton away
from the property. On September 27, 2005 Hamilton wrote to
Nolan, citing the terms of the collective-bargaining agreement,
and demanding access “in order to represent … bargaining unit
members.” The letter said “we plan to go into the break room
during non-working times beginning on Wednesday, September
28.”
Nolan replied by letter of the same date in language very
similar to the language used by Guglielmo in her letter denying
Union access to Victoria. Relevant excerpts follow:
The last time union officials were in the facility a major dis-
ruption occurred which resulted in having to call the local po-
lice to escort those union officials and members from the
building and off the property. There have been other inci-
dents when residents have been drawn into this labor dispute.
Because of these and other events, when union officials have
been disruptive and have drawn residents into this dispute, we
can no longer allow those officials who are not employees of
Wayneview on the premises. Accordingly, please do not at-
tempt to enter the premises tomorrow for the purpose of meet-
ing with Wayneview employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1112
Hamilton has no idea what Nolan meant when she referred to
a “major disruption” at Wayneview. He has not heard of such
an event. Nolan, who was called by Respondent and testified at
length herein, did not refer to any disruption caused by Union
officials and employees at Wayneview, she did not testify as to
any incident involving a resident of Wayneview, and she did
not testify about calling the police to quell a disturbance.
Nolan did not testify about the letter she sent to Hamilton and
she did not testify about denying the Union its visitation right.
Hamilton testified that he is not permitted into the employee
break room and he is not able to meet employees on the prem-
ises. Hamilton is only permitted into Wayneview to meet with
management for a previously scheduled grievance meeting.
Hamilton periodically asks Nolan for access to Wayneview but
she continues to refuse.
I credit Hamilton’s uncontradicted testimony. Hamilton tes-
tified in a forthright and open manner and he answered all ques-
tions on cross-examination in a cooperative spirit. Hamilton
impressed me as a witness who did his utmost to relate his rec-
ollection truthfully.
M. Unilateral Changes
Union representative Danie Tarrow received complaints
from Victoria employees that they were not receiving a uniform
allowance or other benefits. Employees who had not been
permitted to return to work on September 6, 2005 but who were
taken back at various times through January 2006 said that they
were being treated like new hires. Tarrow presented a griev-
ance to Guglielmo on January 25, 2006 naming 10 employees
who had not been returned to their previously held positions
with full seniority.55 Tarrow also attempted to discuss the fail-
ure to pay uniform allowance at Victoria. Guglielmo refused to
discuss the grievance at the meeting. She stood up to leave the
room and told Darrow to get out of the office. Darrow testified
that the Union will file for arbitration after a first step meeting,
but the first step must be held before filing for arbitration. In
this case, Guglielmo refused to conduct the first step meeting.
III. DISCUSSION AND CONCLUSIONS
A. Negotiations and Declaration of Impasse56
The history of the negotiations for Wayneview and Victoria
shows that after some early meetings where the parties bar-
gained separately, Turfariello and Foley agreed to combine the
negotiations. In two off the record meetings, the parties ex-
plored the current costs of various items and the estimated costs

55 The employees were Chrisamine Francois, Geraldine Morgan, Ro-
sette St. Pierre, Jason Nicholson, Sandra Amoteh, Cherly Charon,
Agathe Guillaume, Elizabeth Mulan, Anthony Powell, and Marie Mo-
nelus.
56 I credit the testimony of Foley, Alcoff and Silva generally, with
some exceptions noted in the decision. I find that Tufariello had an
inexact recollection of the events. He did not recall what some docu-
ments represented and reading them did not refresh his recollection, he
did not display a grasp of the history of the negotiations and his testi-
mony sometimes contradicted the documentary evidence. Further,
Tufariello did not even address many of the subjects covered by Alcoff
and Foley, and when he did his testimony often lacked detail and preci-
sion.
of Union demands. Tufariello stated that he had in mind a total
amount he could offer for the successor contracts. The Union
adhered vehemently to its demand that the employer agree to
participate in the Union’s fund for health insurance and other
benefits. The Union had statewide goals in this round of bar-
gaining and it wanted to adhere, as far as possible, to those
goals in the Wayneview and Victoria contract.57 By his own
admission Tufariello did not understand the Union’s economic
proposals, but Tufariello was certain that remaining in the em-
ployer’s current health insurance plan was less costly than par-
ticipating in the Union fund. Tufariello never changed his mind
on this subject. The major economic issues were wages, health
insurance, the introduction of a pension, the possible change in
the status of no-frills employees, and an increase in the mini-
mum wages of the lowest paid employees known as the “par-
ity” issue. PTO was also a subject with economic impact.
After the negotiations were combined, the parties attempted
to write contracts for both Wayneview and Victoria so that
there would be, according to Foley’s uncontradicted descrip-
tion, “an almost master contract” for both facilities. To further
this aim, Tufariello testified, he reluctantly agreed that the sub-
ject of PTO, which had been tentatively agreed upon for Victo-
ria, would be reopened in the combined negotiations.
The Union’s first full economic demand, described above in
detail, was presented on May 10, 2005. Under that proposal,
wages would increase 4% on the anniversary date of the con-
tract in each of three years, all facilities would end the contract
with 8 holidays, 11 sick days and 3 personal days. Parity in-
creases would apply to raise the lowest rates to a minimum of
$10 and $11 per hour, the Union fund would cost 22.33%, other
funds were provided for and pension rates would rise to 2% and
1.7%. Very significantly, no-frills employees would be re-
duced pursuant to a formula and Victoria wages would rise
additionally to provide for a shorter work week. Negotiations
took place in May and June, with discussions of proposals and
their costs. On June 30 the Union dropped its demand for a
shorter work week with an extra wage increase at Victoria, a
position that was formalized in an August 5 document.
On August 5, 2005 Alcoff first attended as the Union’s chief
negotiator and he presented a modified economic proposal.
The Union’s demand continued to provide for parity but it no
longer required three 4% wage increases. Instead, a number of
smaller increases would have culminated in a total increase of
12% only by the end of the contract and not at the beginning of
the third year, thereby reducing the total cost of the wage in-
creases over the three year contract term. There was a later
effective date for participation in the Union’s benefit fund. The
cost of the pension proposal was reduced and demand for a
legal fund abandoned. Tufariello presented a wage proposal
with 7% increases and $1.50 in extra wages for no-frills em-
ployees. The parties had tentative agreement on work in a

57 I find that the Union negotiators mentioned the Tuchman agree-
ment because it met many of the goals established by the Union for the
present round of negotiations. The employer was aware of the most
favored nations clause. I need not determine the precise import of that
clause in view of the fact that the Union’s proposals during the course
of bargaining were not unalterably fixed to the terms of the Tuchman
contract.
WAYNEVIEW CARE CENTER 1113
higher classification, merit increases, direct deposit and transfer
to a higher classification. I credit Alcoff’s testimony that the
parties had reached “conceptual” agreement on the wages of
no-frills employees. The employer presented a Victoria PTO
proposal.
I note that Respondent’s Brief is inaccurate and contrary to
the documents and the testimony on the subject of the August 5
session, especially on the issue of a change in the Union’s de-
mand for wage increases.
On August 9 the Union responded to the employer’s Victoria
PTO proposal. I credit Alcoff’s uncontradicted testimony that
this document represented a reduction in the Union’s August 5
demand in both numbers of PTO days and effective dates. I
also credit Alcoff’s uncontradicted testimony that in a sidebar
discussion on August 9 Tufariello identified the two issues of
most concern to him. He was intent on maintaining the em-
ployees’ right to choose whether to be benefited or no-frills and
he was opposed to the Union proposal to phase down the num-
ber of no-frills employees to a certain percentage. Tufariello
told Alcoff that many employees preferred the extra wages they
received as non-benefited workers and they would not want to
change. Tufariello’s second major area of concern was health
insurance. The employer was most interested in keeping the
employees in its own plan and was adamantly opposed to par-
ticipation in the Union fund.
The marathon collective-bargaining session of August 18-19
resulted in significant changes in the positions of both parties.
The Union presented comprehensive proposals for Wayneview
and Victoria at the beginning of the meeting and Alcoff ex-
plained the language. Alcoff and Alessi met with the mediators
to clarify certain issues. At the mediators’ request, each party
drafted amended proposals for presentation to the other side.
The testimony and documents show that significant movement
was made by each party. The Union wage proposal no longer
specified certain increases but only required the attainment of a
goal at the end of the contract term. Parity increases would
now be effective only at the end of the contract. These new
wage proposals were especially significant as they reduced the
overall cost of the contract and signaled a willingness to be
flexible on wages. For the first time the Union abandoned its
insistence that employees be covered by the Union benefit fund
and agreed to a continuation of health insurance by the em-
ployer’s plan. This was a major concession in view of Tu-
fariello’s desire to avoid the Union fund and his stated belief,
described above, that the employer’s health insurance was less
expensive than the Union fund. The Union agreed to phase in
coverage for family members. The Union abandoned its no-
frills proposal and agreed that employees would continue to
have free choice whether to have benefits or a wage bonus.
This was an extremely significant change in view of Tu-
fariello’s wish that employees continue to have a choice and
especially in view of Tufariello’s belief that many employees
would continue to choose the no-frills option because they
wanted extra money or had coverage from another source. The
Union decreased its demands for PTO improvements and a
training fund. I credit Alcoff’s testimony, supported by docu-
mentary evidence, that by August 18 the Union was no longer
tying to achieve the same goals at Wayneview and Victoria as it
had obtained with other employers, including the Tuchman
contract employers.
I credit Alcoff’s testimony, supported by documentary evi-
dence, that the employer made many significant changes to its
position on August 18–19. The employer increased its mini-
mum rate proposal, there was a new partial-frills proposal and
an increase in the Victoria no-frills bonus and an opt-out fea-
ture for no-frills employees. The employer proposed reduced
employee contributions for health insurance coverage. Alcoff
thought a new proposal on PTO at Victoria was “in the ball-
park.” Finally, Alcoff cited an important new agreement by the
employer to the Union’s demand for a 2% pension contribution
by the end of the contract term at both facilities.
Although Tufariello could not recall much about the session
of August 18-19 he testified that the Union’s proposal was
more expensive but he could offer no reliable specifics to ex-
plain how he reached this conclusion. Tufariello inaccurately
testified that the parity increase proposed on this day was more
expensive than the Union’s previous demand. Tufariello said
that the Union’s health insurance proposal was more expensive
because theoretically every employee could take family cover-
age. But this statement contradicts Tufariello’s testimony that
the employer’s health insurance, which the Union now ac-
cepted, was always a cheaper choice. The statement also con-
tradicts Tufariello’s oft-stated belief to Alcoff that employees
wanted to be able to waive health insurance and many would
continue to be non-benefited. I do not credit Tufariello’s testi-
mony about the Union’s last proposal given to the mediators at
the marathon session. I also do not rely on Nolan’s testimony
about the Union’s proposal. Nolan said that the Union wanted
the employer to pay as much as $1000 per month for employee
health insurance. Nowhere is this figure supported by the tes-
timony or evidence in the record. This statement contradicts
Nolan’s other stated impression that night: she said both she
and Tufariello felt about the negotiations that “we were really
getting somewhere.” As I have found elsewhere in this deci-
sion, Nolan gave inaccurate, inconsistent and evasive testimony
in the instant proceeding. Instead I rely on Alcoff’s description
of the many changes made by both parties to the negotiations.
The Board has noted that Taft Broadcasting, 163 NLRB 475
(1967), “sets forth the standards for determining whether par-
ties have exhausted the prospects of concluding an agreement
and a bargaining impasse exists. Factors such as the parties’
bargaining history, their good faith, the length of time spent in
negotiations, the importance of the issues about which the par-
ties disagree, and the parties’ contemporaneous understanding
of the status of negotiations are all relevant parts of the analy-
sis.” Intermountain Rural Electric Assn., 305 NLRB 783, 788
(1991).
Here the parties had bargained for several months and had
reached agreement on a number of important matters. Signifi-
cant movement on major economic items of importance to both
sides took place on August 18-19. Both employer and the Un-
ion made major concessions and both made new and important
changes to their basic approach to the bargaining. The Union’s
willingness to agree to continue the employer’s health insur-
ance plan and its willingness to abandon its previous insistence
on phasing out no-frills employees met Respondent’s most
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1114
important goals as expressed by Tufariello. Other Union con-
cessions decreased the cost of the Union’s demands. Similarly,
the employer made important advances towards the Union’s
goals on pension, wages, PTO and affordable health coverage.
Thus the parties were coming closer together on the major
items about which they had disagreed in the past.
I also find, based on the uncontradicted testimony of Alcoff,
that Alcoff told Alessi at the end of the marathon session that
he thought there was an opportunity to achieve a contract and
that he would drive back from his home if the parties could
negotiate further over the weekend. Alcoff gave his telephone
numbers to Alessi and the mediators. Alessi told Alcoff that he
would speak to Tufariello over the weekend about the negotia-
tions and that he would ask Tufariello to think about the Union
offer. Alessi said that Alcoff should communicate with him
through the mediators. Indeed, Alcoff made efforts to contact
Alessi through the mediators over the weekend and on Monday
morning. Thus, I find that both sides were expecting further
negotiations. Neither party had told the other that they had
reached impasse. The parties’ contemporaneous understanding
of the negotiations was that further bargaining would be fruit-
ful. In these circumstances no impasse existed as of the morn-
ing of August 19.
On the evening of August 22 the Union received another
employer proposal. This proposal was regressive in that the
health insurance proposal was less generous than the em-
ployer’s August 18-19 proposal and the 2% pension contribu-
tion and partial frills offer were both withdrawn. I find, consis-
tent with the documentary evidence discussed above and Al-
coff’s testimony, that nowhere on the document received by the
Union on August 22 was there any mention that this constituted
the employer’s “final offer”. On August 26 Alessi told Alcoff
in a telephone call that the August 22 offer was the employer’s
“last best offer.” Alcoff denied to Alessi that he had received
any such notification. Alcoff told Alessi that the Union
planned to return to the bargaining table because there “is a
deal to be had.” Alessi responded that the Union’s demand to
negotiate over the August 22 offer “will force Tufariello to
permanently replace. That’s what he’s talking about.” I have
found that Alcoff is a reliable witness and his testimony about
the conversation with Alessi was uncontradicted. I find that on
August 26 Alcoff asked Alessi for further negotiations on the
employer’s August 22 proposal and that Alessi said the em-
ployer would permanently replace the Victoria employees if
Alcoff persisted in his demand for negotiations. Alessi’s
statements were repeated in his letter of August 26 which said
that on September 6 Victoria would hire permanent replace-
ments and implement its “last best offer.” Similarly, on August
31 Nolan informed Silva that on September 6 Wayneview
would implement the August 22 offer.
I find that the parties had not reached a lawful impasse even
after the Respondent presented its August 22 offer as its last
best offer. The Union did not reject this offer. The Union was
eager to return to negotiations and repeatedly requested that the
employer resume bargaining. The Union asked for information
so that it could respond to the August 22 offer. Indeed, the
changes made by the Union at the August 18–19 session boded
well for an ultimately successful outcome because they met
many of Tufariello’s most urgent concerns. The Union re-
newed its request for bargaining by letter of September 6, 2005.
When the Union met with Alessi for negotiations on September
19 with a mediator present Alcoff asked some questions about
the August 22 offer. This was an attempt to further the bargain-
ing process and shows that the parties had not exhausted the
prospects for concluding an agreement. Duane Reade, Inc.,
342 NLRB 1016–1017 (2004). Where one party does not view
the negotiations as having reached impasse and is willing to
move further toward an agreement, an impasse cannot exist.
Teamsters Local 639 v. NLRB, 924 F.2d 1078, 1084 (D.C. Cir.
1991).58 In Cotter & Co., 331 NLRB 787, 791 (2000), Mem-
ber Brame quoted Judge Posner for the proposition that one
party’s proffering a so-called final offer is not conclusive on
the question of impasse because “[a]fter final offers come more
offers.”59 Indeed, the Board stated in a recent case that “Re-
spondent demonstrated that further movement was possible by
presenting the Union with multiple final offers”. Coastal
Cargo Co., 348 NLRB 664 (2006).
When Alcoff tried to further the negotiations on September
19 Alessi repeated that the August 22 offer was the employer’s
last best offer. I credit Alcoff that Alessi said that the Victoria
employees would be permitted to work if the Union accepted
the offer and withdrew the charges pending at the NLRB. If the
Union did not comply with this demand the employees would
be permanently replaced. I credit Alcoff that Alessi walked out
of the meeting when Alcoff attempted to discuss the August 22
offer.
Having found that no impasse existed in the bargaining be-
tween the Union and Wayneview and Victoria, I find that the
threat to implement the terms of the August 22 offer and the
actual unilateral implementation of the August 22 offer violated
Section 8(a)(5) of the Act.60 NLRB v. Katz, 369 U.S. 736
(1962).
I also find that on September 19 Respondent Victoria condi-
tioned an agreement to a new contract and the return of the
employees to work on the Union’s agreement to withdraw its
pending charges against Victoria and Wayneview. This insis-
tence to impasse on a nonmandatory subject of bargaining vio-
lated Section 8(a)(5) of the Act. Patrick & Co., 248 NLRB
390, 393 (1980).
B. Request for Information
An employer has a duty to supply information requested by a
Union that is potentially relevant and will be of use to a union
in fulfilling its responsibilities as a collective bargaining repre-

58 In this decision Judges Henderson, Buckley and Sentelle cited
numerous instructive cases on the point.
59 Chicago Typographical Local 16 v. Chicago Sun Times, 935 F.2d
1501, 1508 (7th Cir. 1991).
60 The Union renewed its request for bargaining by letter of January
19, 2006. Alessi replied that the parties had reached impasse after the
session of August 18–-19, 2005 and that Wayneview and Victoria had
implemented their last best offer. Significantly, the employer, through
its counsel, asserted that impasse had been reached after the marathon
session of August 18–19. I note that the offer submitted by the em-
ployer through the mediators on August 18–19 was not the same as the
contract terms of August 22 imposed by the employer after September
6, 2005.
WAYNEVIEW CARE CENTER 1115
sentative. Information concerning wage rates, job descriptions,
and other information pertaining to employees is presumptively
relevant. Curtiss-Wright Corp., 145 NLRB 152 (1963), enfd
347 F.2d 61 (3d Cir. 1965).
On August 30 Alcoff asked Alessi for further negotiations
and submitted a request for information about the employer’s
August 22 offer. Alcoff testified that he had never been given a
copy of the Aetna health insurance contract. However, Nolan
testified that she had sent the health insurance information to
Foley as well as information for other benefits. Foley did not
contradict this testimony. The Union was thus in possession of
the health plan information and benefit information as of early
2005.61 However, the Union was never given information
about changes made or occurring after the implementation of
the August 22 offer. A written assertion from Alessi that the
Union had information is hearsay as to the actual facts: Alessi
was not privy to the early negotiations and he did not testify
herein. I credit Alcoff that he was unaware of provisions appli-
cable to non-unit employees referred to in the August 22 offer.
Similarly, Alcoff had not seen documents relating to the new
training proposal. The Union was also entitled to information
about work force changes. The Respondent failed to provide
any of the information requested.
Concerning the Union’s later information request on Sep-
tember 12 for details of employees performing bargaining unit
work, a copy of the current schedule for each department and
unit and a copy of all material describing the new terms and
conditions of employment for the units at Victoria and Wayne-
view, I credit Alcoff’s uncontradicted testimony that the infor-
mation provided by Alessi in response to this request was in-
complete and inaccurate. The Union’s request for information
was renewed by letter of January 19, 2006. The Respondent
did not provide this information.
The Union was presumptively entitled to all the information
which concerned terms and conditions applicable to the unit
employees such as changes to the work force, information
about current employees, schedules, and the like. To the extent
that the early information provided by Nolan with respect to
Wayneview differed from relevant information about Victoria,
the Respondent should have provided this information to Al-
coff. Further, the Union was entitled to any information rele-
vant to understanding the August 22 offer, later implemented
by Wayneview and Victoria. Respondents Wayneview and
Victoria violated Section 8(a)(5) of the Act by failing and re-
fusing to provide information requested by the Union.
C. The Decertification Petition at Wayneview
The testimony that Staffing Coordinator Christopher Irizarry
was given permission by Director of Nursing Ziccone to leave
the premises, while still being paid for his time, and observe the
Wayneview unit employees signing a decertification petition is
uncontradicted on the record. Likewise, Irizarry’s testimony
that he gave the signed petition to Ziccone is uncontradicted.
These events took place on or after August 22, 2005. Adminis-
trator Nolan testified that she knew Irizarry was involved in the

61 As stated above, I assume that the same health plan was in effect
at Victoria.
decertification effort and she knew that Ziccone had the peti-
tion. Further, employee Margaly Pierre testified without con-
tradiction that Ziccone gave her a decertification petition to
sign. Ziccone told Pierre that if she signed she would be per-
mitted to return to work and Ziccone put Pierre in touch with
unit clerk Simone Henderson who promised Pierre health bene-
fits, vacation and PTO days if she signed the petition. The
decertification petition was filed in the Regional Office on Au-
gust 25.
By assisting employees in the solicitation of signatures on a
petition to decertify the Union and by promising employees a
return to work and increased benefits if they signed a petition to
decertify the Union, Respondent Wayneview violated section
8(a)(1) of the Act. Process Supply, 300 NLRB 756, 758
(1990).
D. Interference with Union Activities
Wayneview shop steward Marcia Cover testified that Direc-
tor of Housekeeping John Larina called an employee meeting
before August 23 and told employees not to wear Union but-
tons and not to talk about the Union. Larina threatened the
employees with loss of benefits and loss of jobs if they went on
strike. Larina instructed Cover to remove a Union button she
was wearing and threatened that she would get into trouble if
she continued to wear the button. Administrator Nolan ac-
knowledged that Larina had instructed employees not to wear
Union buttons. Larina told Marjorie Barnett that Nolan said
workers caught wearing Union stickers would be fired or they
would lose their seniority. Larina also told Barnett that Nolan
said she did not want employees talking to the Union or they
would be fired. I credit Cover and Barnett’s uncontradicted
testimony. By threatening employees that they would be fired
if they wore Union buttons or spoke to the Union, by instruct-
ing employees to remove Union buttons, and by threatening
employees with loss of their jobs or loss of benefits if they
participated in a strike, Respondent Wayneview violated Sec-
tion 8(a)(1) of the Act. Dayton Newspapers, 339 NLRB 650,
652 (2003).
Victoria Dietary Supervisor Anthony Merez posted a sign on
June 27, 2005 advising unit members that employees who did
not work during a strike would be terminated. Victoria em-
ployee Geraldine Morgan testified without contradiction that
several days before August 23 Assistant Director of Nursing
Rita Burke said that if employees went out on strike “they
could all be fired.” By threatening employees with discharge if
they participated in a strike, Respondent Victoria violated sec-
tion 8(a)(1) of the Act. Dayton Newspapers, supra.
The General Counsel argues that the employer’s advertising
for strike replacements at higher wages than paid to bargaining
unit employees was intended to undermine support of the Un-
ion in violation of Section 8(a)(1). In Beverly Health & Reha-
bilitation Services, 335 NLRB 635, 638 (2001), the Board
found such a violation based on various unlawful actions and
“the Respondent’s corporatewide and centralized policy of
hostility to its employees’ rights” and “the unexplained and
publicized offer of higher wages to strike replacements.” Here,
Nolan explained the higher wages as based on the fact that the
work was temporary and carried no guarantee that it would ever
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1116
be performed or compensated. The General Counsel’s proof in
the instant case does not rise to the level of hostility to em-
ployee rights made out in the cited case. I shall dismiss this
allegation.
E. Denial of Access
The collective-bargaining agreements of Wayneview and
Victoria provide that Union representatives have access to the
facilities in a manner which does not unreasonably interfere
with the operation of the employer. The contracts also provide
for the Union to conduct meetings during non-work time with
the approval of the Administrator. The uncontradicted testi-
mony of the Union agents, whom I credit, shows that at both
Victoria and Wayneview the issue of Union access was handled
in a similar fashion. At the Victoria building Union agent Gor-
finkle would notify Assistant Administrator Guglielmo of his
approximate arrival time and he would regularly meet with
employees near the time clock and break room during their
non-work time. Gorfinkle also met with employees near the
management offices to prepare for grievance meetings. Gor-
finkle never asked for permission to enter the building on these
occasions. A formal meeting with a group of employees re-
quired the permission of management and arrangements for
release time. Similarly, at Wayneview Union agent Hamilton
would inform Nolan that he was en route to the facility and he
would wave at the receptionist and proceed to the employee
break room. Hamilton would ask Nolan’s permission if he
planned to conduct an “actual meeting” to be sure that the start
and end time met with her approval.
Beginning on September 6, 2005 Gorfinkle and other Union
representatives have been denied access to Victoria for the
purpose of meeting with employees. The Union agents may no
longer meet with employees at the time clock or in the break
room on an informal basis during non-work time. The only
occasion when Union agents have been allowed into the build-
ing was for a grievance meeting with management. Guglielmo
wrote to Gorfinkle citing a “major disruption” and alleged that
a resident walking in the grounds once returned to the building
wearing a Union button. Guglielmo and Administrator Del-
Sordo did not testify herein. Gorfinkle testified about the occa-
sion on September 6 when he accompanied employees seeking
to return to work. Gorfinkle did not state that Guglielmo was
present. I have found that Gorfinkle is a reliable witness and I
find, consistent with his testimony, that he and a group of em-
ployees walked from the time clock area to the management
area to speak to DelSordo. The group “may have been loud” in
an attempt to get DelSordo’s attention. There is no evidence
that they were loud while walking the distance from the back
time clock area to the front area where DelSordo’s office is
located. The uncontradicted testimony shows that the group
walked past a nurse’s station but did not enter the patient care
wing behind the nurse’s station. The group did not walk in
front of the patient dining area. There is no evidence that any
patient saw or heard the group and there is no contention, aside
from Guglielmo’s hearsay letter, that this was a major disrup-
tion in patient tranquility. If there had been a disruption Re-
spondent could not have failed to call those who witnessed it
and could not have failed to document it by actual witness
statements in great detail. Concerning the hearsay allegation
that a resident returned from the grounds wearing a union but-
ton, even less need be said. There is no evidence that this actu-
ally happened, no hint as to when this might have been and no
evidence from whom the button was procured or who placed
the button on the patient.
I find that Victoria unilaterally effected a change in a manda-
tory subject of bargaining by denying access to Union agents in
violation of Section 8(a)(5) of the Act.
Union agent Hamilton’s testimony shows that from August
29, 2005 he was barred from entering Wayneview. Administra-
tor Nolan, who testified herein but did not mention the subject
of Union access, informed Hamilton that Tufariello gave the
order not to admit him.62 Hamilton may no longer meet the
employees in the break room on non-work time. Hamilton was
denied the opportunity to enter the facility to investigate a unit
employee’s discharge when Nolan called the police. Nolan’s
formal letter of September 28, 2005 denying access to Hamil-
ton cited a “major disruption” and incidents where residents
were drawn into the dispute as reasons for barring the Union
from Wayneview. There is no evidence in the record, either
testimonial or documentary, about any untoward incidents at
Wayneview which could be in any way used to justify the re-
fusal to permit Union agents their usual access to the facility. I
find that Wayneview unilaterally effected a change in a manda-
tory subject of bargaining by denying access to union agents in
violation of section 8(a)(5) of the Act.
F. Lock Out of Wayneview Employees
The record shows that on August 12, 2005 the Union sent a
10-day strike notice to Wayneview stating that a strike, picket-
ing or other concerted refusal to work would begin at 7 am on
August 23. After the notice was sent various employees and
Unions stewards informed Administrator Nolan that the
Wayneview employees did not want to strike. Nolan herself
testified that the majority if not all the bargaining unit employ-
ees at Wayneview did not want to strike. Union agent Alcoff
said that he knew the Wayneview employees would never vote
to go out on strike.
Nolan prepared for a possible strike by contacting the poten-
tial replacement employees she had lined up previously.
Wayneview managers prepared a work schedule of replacement
employees for two weeks commencing August 23. Nolan testi-
fied that she had told the potential replacement employees they
might never work at all and that they could be replaced by the
original employees at any time. She said the replacements
would be brought in “if there were actually a job action.”
On August 22 the Wayneview employees voted not to strike
and Union president Silva notified Tufariello by fax that the
employees would report to work at their usual times and would
conduct one day of informational picketing to end at 4 pm.
Alessi, who had received the fax at 4:55 pm, responded that
Wayneview had placed replacement employees on the schedule
and that Wayneview employees should not report to work “un-
til further notice.” Nolan did not relate when she learned that

62 I note that Tufariello was called by Respondent herein but he did
not testify on this subject.
WAYNEVIEW CARE CENTER 1117
the employees had voted not to strike. I note that the vote took
place at Wayneview which is Nolan’s workplace. I will assume
that she learned of the vote no later than 4:55 pm.
Wayneview unit employees were not permitted to work on
August 23 and employees returning to their regular schedules
after August 23 were not permitted to work. Margaly Pierre
returned from vacation and entered the facility. Director of
Nursing Ziccone and Assistant Director of Nursing Develez
welcomed Pierre back to work. Ziccone told Pierre that the
employees were on strike and asked if she would work without
the Union. Ziccone gave Pierre a decertification petition saying
that if Pierre wanted to work she had to sign the petition. Al-
though Pierre signed the decertification petition Ziccone even-
tually informed Pierre that “the lawyer” did not want Union
members in the building and she was told to leave. As de-
scribed above in detail, on about August 24 Assistant Adminis-
trator Ziccone gave two employees permission to leave the
building during their paid work time to collect signed decertifi-
cation petitions. Ziccone then took possession of the petitions.
As described in detail above, Wayneview Director of House-
keeping Larina called the employees to a meeting before the
lockout and instructed them not to wear Union buttons and not
to talk about the Union. Larina threatened the employees if
they went on strike they would lose benefits and would lose
their jobs and he told employee Cover to remove a Union but-
ton or she would get into trouble. Just before August 23 Larina
told employee Barnett that Nolan said employees wearing a
Union sticker would be fired or they would lose their seniority.
I have found above that Wayneview violated Section 8(a)(1) of
the Act by assisting in a decertification effort and by condition-
ing a return to work and increased benefits on the signing of a
decertification petition. I have found above that Respondent
Wayneview violated Section 8(a)(1) of the Act by threatening
employees.
The anti union animus of Wayneview is clearly shown by
these violations of Section 8(a)(1). The record shows that
Wayneview managers and supervisors unlawfully sought to
discourage employees from supporting the Union in the bar-
gaining effort before the lockout and actively assisted in the
preparation of a decertification petition during the lockout. I
conclude that Wayneview locked out its employees on August
23 to discourage them from supporting the Union and to en-
courage them to decertify the Union. The lockout thus had an
unlawful motive.
The lockout was also rendered unlawful by Wayneview’s
failure to inform the Union on August 22 of the employer’s
stated conditions for reinstating the unit employees. Alessi’s
letter notifying Silva of the lockout merely said that there was
no work for the employees and that they should not report until
further notice. “A fundamental principle underlying a lawful
lockout is that the Union must be informed of the employer’s
demands, so that the Union can evaluate whether to accept
them and obtain reinstatement.” Dayton Newspapers, 339
NLRB 650, 656 (2003). I note that conditions relating to the
return to work of Wayneview employees were not mentioned in
Alessi’s August 26 letter to Alcoff.
The employer refused to bargain after transmitting its August
22 offer even though the parties had not reached impasse.
Nolan’s August 31 letter to Silva that Wayneview would im-
plement its final offer on September 6, 2005 constituted a threat
that Wayneview would impose its offer of August 22 in the
absence of an impasse in the collective bargaining. A lockout
in an attempt to coerce the Union to accept the employer’s uni-
laterally implemented final offer is unlawful. Teamsters Local
639 v. NLRB, 924 F.2d 1078, 1084 (D.C. Cir. 1991).
As discussed above Nolan gave unreliable and shifting tes-
timony about why employees were not permitted to work after
August 23. She stated both that the employees did not want to
strike and that the employees themselves had made the decision
not to work because “they had a job action that was in full
force.” She said the unit employees did not actually come to
work that day, that she could not recall if anyone came to work,
that only one person came to work, and she finally admitted
that she herself told the police to bar anyone not on the list so
that only replacement employees could enter the facility to
work. Having found above that Nolan was not a credible or
truthful witness, I do not credit Nolan’s testimony about a ver-
bal commitment to temporary workers that they would be em-
ployed for two weeks. Further, Nolan did not actually testify
that Respondent had any financial obligation to the temporary
employees. Finally, Nolan did not actually testify that Wayne-
view was precluded by practical or other considerations from
notifying the temporary employees on August 22 that they
should not report the next day. Indeed, Nolan also testified that
she told the potential replacements that they might never work
and that they might be told to stop work at any time, a reason-
able precaution in view of her knowledge that the Wayneview
employees did not want to strike. Nolan’s testimony is not
specific and not worthy of belief and it cannot support a finding
that Wayneview had a legitimate and substantial business justi-
fication for barring the unit employees from work beginning on
August 23, 2005.63
Contrary to the assertion in Respondent’s Brief, there is no
record testimony that Wayneview did not permit unit employ-
ees to work because it feared that the employees would work
for one day and then walk out the following days.64 Also, con-
trary to Respondent’s Brief, the Union clearly notified Wayne-
view that the activity in the Section 8 (g) notice would be “lim-
ited to informational picketing” from 7 am to 4 pm on one
specified day during the employees’ non-working time. The
Union also made clear that all employees would report and
work their regular schedules. No witness on behalf of Respon-
dent expressed any fear, either verbally or in writing, that
Wayneview employees would call an unexpected strike. Fur-
ther, Alessi’s letter stating that there was no work for Wayne-
view employees did not mention any fear that the employees
would change their minds and strike.
Respondent cites Sociedad Espanola, 342 NLRB 458 (2004),
for the proposition that its commitment to the continuity of
patient care justified the lockout. In that case a union repre-

63 Cf. Roosevelt Memorial Medical Center, 348 NLRB 1016 (2006),
where the employer was obligated to pay prospective replacement
employees.
64 Additionally, Respondent’s Brief cites transcript pages for this as-
sertion but the pages do not support the matter in the Brief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1118
senting hospital employees announced two strikes; one two day
strike would take place from December 22 to 24 and the second
strike would take place from December 31 to January 2. Even
though the union officials cancelled the first strike at the 11th
hour, the hospital conducted a lockout beginning December 22.
The Board held that the lockout was prompted by legitimate
and substantial business consideration. The Board relied upon
a number of factors in reaching its conclusion: The union in-
tended to strike on December 22 and cancelled only at 8:15 the
night before; some unit members might not show up the next
morning and it was difficult to recruit replacements during the
holiday season; the union did not cancel the second strike; re-
placements had been hired and a substantial number of them
were already sleeping in the hospital and had to be paid for
their time; if the replacements were sent home on December 22
they might not show up for the second scheduled strike on De-
cember 31. The facts in the instant case are very different: the
Wayneview employees had never wanted to strike, they voted
not to strike and they were fully aware that a strike was not
scheduled; Administrator Nolan knew that the employees did
not want to strike and she was notified in the afternoon that
employees had voted against a strike; no replacements were on
the premises until the morning shift began at the same time that
all the unit members presented themselves for work and were
excluded from the facility; there was no testimony that Wayne-
view would be financially liable if the replacements had been
sent home without working; there was no indication that
Wayneview employees might vote to strike in a few days.
The uncontradicted evidence of Marjorie Barnett shows that
some employees were permitted to return to work at Wayne-
view on September 6 but that some unit employees were sent
home. Although Respondent apparently maintains that it sent a
letter to employees before September 6 instructing them to
contact their supervisors before that date in order to return to
work, the only such letter introduced into evidence was post-
marked September 6 and received by the employee after Sep-
tember 6. Wayneview employee Marcia Cover never received
any such letter and after being permitted to work for a while on
September 6, Cover was sent home and recalled for September
8. Employee Margaly Pierre received a letter from Wayneview
and was not called back to work until September 8. No valid
business justification was advanced by any employer witness
for the failure to return all the employees normally scheduled to
work on September 6 and to conduct a partial lockout.
I conclude that Wayneview violated Section 8(a)(1), (3) and
(5) by locking out and refusing to permit Wayneview employ-
ees to work their regular schedules beginning on August 23,
2005.
G. Lockout of Victoria Employees
On August 12, 2005 the Union sent a 10-day strike notice to
Victoria stating that a strike, picketing or other concerted re-
fusal to work activities would take place beginning at 7:00 am
on Tuesday August 23, 2005. As described above, on August
22 the Victoria unit employees voted to conduct a strike with
the condition that after five days the employees would decide
whether to return to work. The Victoria employees engaged in
a strike beginning August 23. It is undisputed that this was an
economic strike. On August 26 Alcoff wrote to Administrator
DelSordo stating that the striking employees “unconditionally
offer to return to work Sunday, August 28, 2005 . . . at 6:00
am.” As described in detail above, Alessi then informed Alcoff
that the employer did not view the offer to return as uncondi-
tional because the Union had not accepted the employer’s “last
best offer.” When Alcoff said no one had told the Union that
the August 22 faxed offer was the last best offer and that he
wanted to keep bargaining, Alessi told Alcoff that if the Union
persisted in this course Tufariello would permanently replace
the employees.
Alessi’s August 26 letter to Alcoff reiterated this position.
Alessi said Victoria would continue to employ the replacements
and “any SEIU members who, of their own volition, choose to
cross the picket line.” Alessi informed the Union that begin-
ning September 6, 2005 Victoria would implement its August
22 offer and would permanently replace the unit employees.
When the Victoria employees presented themselves for work
on August 28 at 6 am Alcoff told DelSordo that the unit mem-
bers were there to work pursuant to the statement in Alessi’s
letter that employees who wished could come to work “of their
own volition.” DelSordo stated that if the employees were not
on the schedule they could not work. It is undisputed that the
unit employees were not permitted to work on August 28.
When DelSordo was asked how the employees could get on the
schedule he did not reply. Indeed, after consulting with Tu-
fariello, DelSordo told the Union representatives and the em-
ployees that the people were not allowed to work because there
was a lock-out. Thus, contrary to Alessi’s letter that employees
could come to work if they wished, Victoria implemented a
lockout on August 28.
I find that Victoria locked out its employees on August 28
after they announced the termination of their economic strike
and attempted to return to work pursuant to Respondent’s offer
that employees could return “of their own volition.”
On September 1 the Union informed Respondent that the
Victoria employees were told they were locked out on August
28. On September 3 the Union informed Respondent that the
Victoria employees sought to return to work on September 6
under the terms of the expired contract. The Union reiterated
that the parties were not at impasse and it requested dates for
bargaining from the employer.
On September 6 Union agent Gorfinkle accompanied Victo-
ria employees who attempted to return to work. Many of the
employees could not find their time cards in the accustomed
place. DelSordo told Gorfinkle and the employees that the
employees should have contacted their supervisors by Septem-
ber 2 if they wanted to return to work. DelSordo said that em-
ployees had been notified of this condition by letter. As noted
above, DelSordo did not testify herein and no such letter has
ever been produced. I find that no such letter was sent to em-
ployees. Further, based on the testimony of Ortiz described
above, I find that after she spoke to DelSordo on August 29
she, and perhaps Director of Nursing Savarese, called only
some Victoria employees and instructed them to telephone their
supervisors so that they could go back to work on September 6.
I find that the unit members as a whole were never told how to
get placed on the schedule for September 6. Certainly, no re-
WAYNEVIEW CARE CENTER 1119
sponse was ever made to the Union’s requests for information
on how the unit employees could be returned to the schedule. I
find that on September 6 DelSordo refused to let unit members
return to work. I find that DelSordo informed the Union on
September 6 that the unit members who were not on the sched-
ule had been permanently replaced.
The record shows that employees who were locked out in
this manner were not recalled to their former positions with
their former benefits. Geraldine Morgan was called back to
work in October 2006 on an on-call basis without her former
benefits. Agathe Guillaume was not placed back on the sched-
ule when she called Savarese on September 10, 2005. Victoria
reinstated Guillaume on January 23, 2006 but without crediting
her with the holidays, vacation and sick days that she had ac-
cumulated prior to the lockout and without her uniform allow-
ance. I find that Respondent violated Section 8(a)(3) and (5)
of the Act by unilaterally withdrawing benefits from employees
because they engaged in a strike and supported the Union.
I find that Alcoff’s August 26 letter to DelSordo stating that
the striking employees unconditionally offered to return to
work was a valid unconditional offer. This offer was made
when the conditions of the expired contract were in effect at
Victoria and before Victoria had hired any permanent replace-
ments. Economic strikers whose positions have not been filled
by permanent replacements are entitled to immediate reinstate-
ment upon their unconditional offer to return. The refusal to
reinstate striking employees on August 28, 2005 was a viola-
tion of Section 8(a)(3) of the Act. Harvey Mfg., 309 NLRB
465, 466 (1992).
I have found above that no bargaining impasse existed in the
negotiations between Respondent and the Union. I have found
above that before Alessi’s August 26 telephone call and letter
to Alcoff the Union had never been informed that Respondent
considered the August 22 proposal to the employer’s “final
offer.” In any event, the employer was not entitled to impose a
final offer because there was no valid impasse. The record
shows that Victoria imposed the terms of the August 22 offer
on September 6. The unilateral imposition of the August 22
offer was unlawful in the absence of a bargaining impasse. The
striking employees should have been reinstated pursuant to the
terms of the expired contract. Spenton/Red Star Cos., 319
NLRB 988, 990 (1995).
Victoria’s refusal to reinstate the strikers after their uncondi-
tional offer to return on August 28 constituted a lockout. In-
deed, DelSordo told Alcoff and the assembled employees that
the employees could not return to work because they were
locked out. Alessi replied to the Alcoff’s request to keep bar-
gaining with threat that if the Union persisted in attempts to
bargain on the August 22 proposal the employer would perma-
nently replace the employees. An employer which locks out
its employees in an attempt to coerce the Union to accept the
employer’s unilaterally implemented final offer violates Sec-
tion 8(a)(1), (3) and (5) of the Act. Teamster Local 639 v.
NLRB, supra at 1084.
I note that neither DelSordo nor Alessi ever informed the
Union that the Victoria employees could not return to work on
August 28 because of any commitment to the temporary work-
ers. No Victoria administrator or manager testified concerning
any business justification for conducting the lockout. Indeed,
as found above, Supervisor Merez posted a sign advising Victo-
ria employees that they would be fired if they struck and Assis-
tant Director of Nursing Burke said if employees went on strike
they could all be fired. Thus, even before the unit employees
struck the employer was contemplating their discharge and
replacement. The employer had received notice on August 26
that the strike would end on August 28 and all the employees
normally scheduled to work that day presented themselves at
the appropriate hour so that Victoria could staff its facility and
ensure patient care. There had been no threats of future strikes.
There was no record evidence that Victoria would be finan-
cially liable to the replacements if it terminated them on August
28.
Furthermore, Victoria selectively permitted some employees
to return to work before September 6 and shortly thereafter, but
many employees were not reinstated for some period of time
thereafter. This action constituted a partial lockout. Respon-
dent did not meet its burden to show a business justification for
not returning all the Victoria employees to work once the strike
ended. In the absence of factors justifying a partial lockout,
Respondent violated Section 8(a)(3) of the Act. Field Bridge
Associates, 306 NLRB 322, 334 (1992).
It is unlawful permanently to replace or discharge an unlaw-
fully locked out employee. Respondent’s threats permanently
to replace employees were first spoken and written by Alessi on
August 26 and on September 6 DelSordo informed the Union
and the employees that Victoria employees who were not on
the schedule had been permanently replaced. This threat con-
stituted a violation of Section 8(a)(1) of the Act.
H. Suspension of Marjorie Barnett
The facts set forth in detail above concerning the suspension
of Marjorie Barnett are undisputed. Barnett, the most active
shop steward at Wayneview, a person who often filed griev-
ances and who attended the negotiations as a member of the
committee, was given a three-day suspension for events occur-
ring on September 6, the first day the locked out employees
were permitted to return back to work. Barnett’s uncontra-
dicted testimony establishes that the suspensions were for acts
of commission or omission that were caused by conditions at
Wayneview that were beyond Barnett’s control. The patient’s
bed could not be made up and the patient returned to it until the
bed was first dried and cleaned, the pressure relieving mattress
had to be brought by the maintenance employees and there was
no clean pad available for use with the Hoyer lift. Administra-
tor Nolan did not dispute Barnett’s testimony; Nolan acknowl-
edged that there were “major obstacles” that precluded Barnett
from accomplishing the tasks for which she had been disci-
plined.
Factors including Wayneview’s knowledge of Barnett’s Un-
ion activities, Wayneview’s demonstrated anti-union animus,
the timing of Barnett’s written notices dated on the day the unit
employees returned to work and the total lack of validity to the
warning notices all lead me to conclude that Wayneview sus-
pended Barnett because she supported the Union. I find that
Barnett’s Union activities were a motivating factor in the three-
day suspension imposed upon Barnett. I find that Respondent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1120
has not shown that it would have suspended Barnett in the ab-
sence of her Union activities.65 Indeed, Nolan admitted that
Respondent eventually reversed its decision and paid Barnett
for the three days during which she had served her suspension
because Barnett could not have carried out the work she had
been suspended for failing to perform. It is of no moment that
Wayneview has now rescinded the suspension. I note further,
in connection with the remedial order to be recommended, that
Nolan did not testify that the suspension had been expunged
from Barnett’s personnel file. By suspending Marjorie Barnett
because she supported the Union Respondent violated Section
8(a)(3) and (1) of the Act.
I have considered the other points raised in Respondent’s
Brief and I find them without merit. Many are procedural
points not urged during the hearing and many are based on the
testimony of witnesses whom I have found not to be worthy of
belief.
CONCLUSIONS OF LAW
1. SEIU 1199, New Jersey Health Care Union, is the exclu-
sive collective bargaining representative of the employees of
Wayneview Care Center in the following appropriate unit:
All full-time and regular part-time CNAs, housekeeping,
laundry, and dietary employees employed by the Employer at
its Wayne facility, but excluding all other employees includ-
ing managers, statutory supervisors and guards within the
meaning of the Act.
2. By suspending Marjorie Barnett, Respondent Wayneview
violated Section 8 (a ) (1) and (3) of the Act.
3. By assisting employees in the solicitation of signatures on
a petition to decertify the Union and by promising employees a
return to work and increased benefits if they signed a petition to
decertify the Union, Respondent Wayneview violated Section
8(a)(1) of the Act.
4. By threatening employees that they would be fired if they
wore Union buttons or spoke to the Union and by instructing
employees to remove Union buttons, Respondent Wayneview
violated Section 8(a)(1) of the Act.
5. By locking out its employees because they supported the
Union and to coerce the Union into accepting unilaterally im-
plemented terms and conditions of employment, Respondent
Wayneview violated Section 8(a)(1), (3) and (5) of the Act.
6. By threatening to and by unilaterally implementing new
terms and conditions of employment prior to reaching a lawful
impasse in collective bargaining negotiations and by refusing to
meet with the Union, Respondent Wayneview violated Section
8(a)(1) and (5) of the Act.
7. By denying Union representatives access to the facility,
Respondent Wayneview has violated Section 8(a)(5) and (1) of
the Act.
8. By failing to provide information to the Union, Respon-
dent Wayneview violated Section 8(a)(5) of the Act.

65 Wright Line, 251 NLRB 1083 (1980).
9. SEIU 1199, New Jersey Health Care Union, is the exclu-
sive collective bargaining representative of the employees of
Victoria Health Care Center in the following appropriate unit:
All full-time and regular part-time CNAs, housekeeping,
laundry, and dietary employees employed by the Employer at
its Matawan facility, but excluding all other employees in-
cluding managers, statutory supervisors and guards within the
meaning of the Act.
10. By threatening employees with discharge if they engaged
in a lawful strike, Respondent Victoria violated Section 8(a)(1)
of the Act.
11. By withdrawing benefits and uniform allowances from
employees because they participated in a strike and supported
the Union, Respondent Victoria violated Section 8(a)(3) and (1)
of the Act.
12. By threatening to and by unilaterally implementing new
terms and conditions of employment prior to reaching a lawful
impasse in collective bargaining negotiations and by refusing to
meet with the Union, Respondent Victoria violated Section
8(a)(1) and (5) of the Act.
13. By denying Union representatives access to the facility,
Respondent Victoria violated Section 8(a)(5) and (1) of the Act.
14. By failing to provide information to the Union, Respon-
dent Victoria violated Section 8(a)(5) of the Act.
15. By conditioning agreement and return to work of em-
ployees on the Union’s agreement to withdraw its pending
charges against both Victoria and Wayneview, Respondent
Victoria violated Section 8(a)(5) of the Act.
16. By threatening permanently to replace unlawfully locked
out employees, Respondent Victoria violated Section 8(a)(1) of
the Act.
17. By refusing to reinstate striking employees and locking
out employees, Respondent Victoria violated Section 8(a)(1),
(3) and (5) of the Act.
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondents having discriminatorily locked out em-
ployees, the Respondents must offer them reinstatement and
make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of their lockout to date
of proper offer of reinstatement, less any net interim earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
The information that Respondents Wayneview and Victoria
are required to provide to the Union regarding their respective
unit employees is all information concerning terms and condi-
tions of employment of non-unit employees that Respondents
have applied to the unit employees pursuant to the August 22
offer and its implementation, documents relating to the August
22 training proposal, information about changes to the work
WAYNEVIEW CARE CENTER 1121
force since the lockout began, the current schedule for each
department and unit relevant to the unit employees and all ma-
terial describing the newly implemented terms and conditions
of employment for unit employees.
[Recommended Order omitted from publication.]