Castle Hill Health Care Center, (2010)

Castle Hill Health Care Center and SEIU 1199 New Jersey Health Care Union. Cases 22–CA–28152 and 22–CA–28548

September 28, 2010

DECISION AND ORDER

By Chairman Liebman and Members Becker and Hayes

On December 14, 2009, Administrative Law Judge Mindy E. Landow issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed an answering brief. The General Counsel also filed cross-exceptions and a supporting brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[1] and conclusions and to adopt the recommended Order as modified.[2]

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Castle Hill Health Care Center, Union City, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

1. Substitute the following for paragraph 2(a).

   “(a) On request of the Union, restore, honor, and continue the terms and conditions of employment set forth in the collective-bargaining agreement with the Union that expired on July 24, 2007, until a new contract is concluded or good-faith bargaining leads to an impasse, or the Union agrees to changes.”

2. Substitute the attached notice for that of the administrative law judge.

   Dated, Washington, D.C. September 28, 2010

   Wilma B. Liebman, Chairman

   Craig Becker, Member

   Brian E. Hayes, Member

   (seal) National Labor Relations Board

   APPENDIX

   Notice To Employees

   Posted by Order of the

   National Labor Relations Board

   An Agency of the United States Government

   The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

   federal law gives you the right to

   Form, join, or assist a union

   Choose representatives to bargain with us on your behalf

   Act together with other employees for your benefit and protection

   Choose not to engage in any of these protected activities.

   We will not fail to provide to the Union, or unnecessarily delay in providing information that is relevant and necessary to the Union’s performance of its duties as the collective-bargaining representative of the employees in the following unit:

   All full-time and regular part-time certified nurses aides, recreation employees, dietary and housekeeping employees employed by Castle Hill Health Care Center at its Union City, New Jersey facility.

   We will not fail to comply with the terms and conditions of employment that are set forth in the collective-bargaining agreement with the Union that expired on July 24, 2007, until a new contract is concluded or good-faith bargaining leads to an impasse, or the Union agrees to changes.

   We will not implement terms and conditions of employment that are different from those in the collective-bargaining agreement that expired on July 24, 2007, until a new contract is concluded or good-faith bargaining leads to a valid impasse, or the Union agrees to changes.

   We will not fail and refuse to remit contributions owed to the SEIU National Industry Pension Fund.

   We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

   We will, on request of the Union, restore, honor, and continue your terms and conditions of employment set forth in the collective-bargaining agreement with the Union that expired on July 24, 2007, until a new contract is concluded or good-faith bargaining leads to an impasse, or the Union agrees to changes.

   We will make employees and former employees whole, with interest, for any and all loss of wages and other benefits incurred as a result of our unlawful alteration and discontinuance of contractual benefits.

   We will make contributions, including any additional amounts due, to any fund established by the collective-bargaining agreement that was in existence on July 24, 2007, and which we would have paid but for our unlawful unilateral changes.

   Castle Hill Health Care Center

   Saulo Santiago, Esq., for the General Counsel.

   Alex Tovitz, Esq. and David F. Jasinski, Esq. (Jasinski, P.C.), of Newark, New Jersey, for the Respondent.

   Ellen Dichner, Esq. (Gladstein, Reif & Meginniss, LLP), of New York, New York, for the Charging Party.

   DECISION

   Statement of the Case

   Mindy E. Landow, Administrative Law Judge. This case stems from charges in Cases 22–CA–28152 and 22–CA–28548, filed on December 5, 2007, and September 8, 2008, respectively, by SEIU 1199 New Jersey Health Care Union (1199NJ or the Union) against Castle Hill Health Care Center (Castle Hill, the Employer, or Respondent). On November 25, 2008, the Regional Director for Region 22 issued an order consolidating cases, consolidated second amended complaint and notice of hearing (the complaint) alleging that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). The complaint alleges, in essence, that Respondent unlawfully failed to and delayed in providing information to the Union and that it prematurely declared a bargaining impasse and unilaterally implemented terms and conditions of employment for employees represented by the Union. The Respondent filed an answer denying the material allegations of the complaint and raising certain affirmative defenses, as will be discussed in further detail below.

   A hearing in this matter was held before me on April 20 through 23, 28 through 30, and May 26, 2009, in Newark, New Jersey. On May 22, 2009, based upon an amended charge filed in Case 22–CA–28152, counsel for the General Counsel moved to amend the complaint to further allege that Respondent unilaterally failed and refused to make contractually required pension fund contributions, and I granted that motion. Respondent denied the material allegations of the amendment to the complaint and argued that they do not relate back to the original charge and are timebarred by Section 10(b) of the National Labor Relations Act.

   On the entire record, including my observation of the demeanor of the witnesses,1 and after considering the briefs filed by the General Counsel, Respondent, and the Charging Party, I make the following

   Findings of Fact

   9. jurisdiction

   Respondent, a New Jersey corporation, with a facility located in Union City, New Jersey, is engaged in the operation of a nursing home and rehabilitation center. During the 12-month period preceding the issuance of the complaint, the Respondent derived gross revenues in excess of $100,000 and purchased goods valued in excess of $5000 directly from points outside the State of New Jersey. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act.

   ii. alleged unfair labor practices

   A. Background

   As noted above, Respondent operates a long-term health care facility in Union City, New Jersey. It is owned by the Omni Company (Omni), a company that manages a number of nursing homes in New Jersey including Bristol Manor Health Care Center, Harborview Health Care Center, and Palisade Nursing Center (Bristol Manor, Harborview, and Palisade).

   The Union and Respondent have been parties to a series of successive collective-bargaining agreements covering a unit of full-time and regular part-time certified nurses aides (CNAs), dietary and housekeeping (grade 1) employees, and recreation employees.2 The most recent agreement between the parties was a memorandum of agreement which expired on July 24, 2007 (the 2002 MOA). The MOAs for Bristol Manor, Harborview, and Palisade expired on the same date as well, and the bargaining for these four facilities overlapped for some time. Although this proceeding relates to Castle Hill only, from time to time the parties made reference to discussions at other tables, as will be described as is relevant to the issues herein.

   The parties commenced bargaining in July 2007. At this time there were approximately 120 employees in the unit; during the course of bargaining this number diminished. Pursuant to attrition, by July 2008, the number of employees had been reduced to approximately 94 full-time and regular part-time employees. The bargaining for a successor agreement took place over the course of 1 year and 13 sessions were held. Respondent was represented in negotiations by its attorney, David F. Jasinski, who was the lead negotiator, and consultant Mendy Gold.3 The Union was represented in bargaining primarily by Executive Vice President Clauvice Saint Hilare, assisted by organizer Ron McCalla. There was also an employee bargaining committee which attended each scheduled session. In addition, at some point early in the negotiations the Union asked for a Federal mediator. Respondent agreed to this request, and James Kenney was appointed by the Federal Mediation and Conciliation Service to assist in the negotiations.

1. The KL Labor Group Agreement and Subsequent Memoranda of Ageeement

   As a preliminary matter, it should be noted that at the outset of bargaining, neither party was in possession of a full contemporaneous executed copy of the collective-bargaining agreement which governed terms and conditions of employment at Castle Hill or, in fact, any of the other Omni facilities. Both parties had a succession of MOAs and side letters but they had not been compiled into a uniform document.

   The KL Labor Group Agreement (the KL Agreement) was a multiemployer agreement among several nursing home facilities and 1115 Nursing Home and Hospital Employees Union (Local 1115), predecessor to 1199NJ. This agreement ran from 1992 to 1996. During the course of negotiations, the parties disagreed as to...