370 NLRB No. 25
Alameda Center for Rehabilitation & Healthcare, LLC
370 NLRB No. 25
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Alameda Center for Rehabilitation and Healthcare,
Inc. and 1199 Service Employees International
Union, United Healthcare Workers East, New
Jersey. Cases 22‒CA‒180564 and 22‒CA‒188462
October 14, 2020
SUPPLEMENTAL DECISION AND ORDER
REMANDING
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On March 20, 2020, Administrative Law Judge Benja-
min W. Green issued the attached supplemental decision.1
The Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs2 and
has decided to affirm the judge’s rulings, findings, and
conclusions as modified below and to remand the proceed-
ing for further appropriate action consistent with this Sup-
plemental Decision and Order Remanding.
At issue in this compliance proceeding is the amount
owed by the Respondent for its unlawful failure to with-
hold employees’ 401(k) contributions and to make match-
ing employer contributions to the 401(k) plan from April
17, 2016, until January 7, 2017.3
The judge determined that 10 employees are entitled to
remedial relief and that the Respondent is obligated to
make them whole for both their employee 401(k) contri-
butions and the Respondent’s matching 401(k) contribu-
tions during the delinquent period, plus the investment
growth the amounts would have experienced during that
period.4 The judge directed that those payments be made
to the employees’ 401(k) plan.
1 On April 3, 2020, the judge issued an additional supplemental order
to correct inadvertent miscalculations in the compliance specification.
2 We reject the General Counsel’s contention that the Board should
disregard the Respondent’s exceptions and brief because they fail to
comply with Sec. 102.46(a)(1) and (2) of the Board’s Rules and Regula-
tions. We find that the Respondent’s exceptions and brief substantially
comply with the Board’s Rules and Regulations and are sufficient to war-
rant Board consideration.
3 On October 26, 2017, Administrative Law Judge Kenneth W. Chu
issued a decision in the underlying unfair labor practice case, finding that
the Respondent’s conduct violated Sec. 8(a)(5) and (1) and issuing a rec-
ommended Order. See Alameda Center for Rehabilitation &
Healthcare, 2017 WL 4841976. On December 11, 2017, the Board
adopted Judge Chu’s findings and recommended Order in the absence of
We agree, for the reasons set forth by the judge, that the
General Counsel established a reasonable formula for de-
termining which employees are entitled to remedial relief.
We further agree that remedial relief appropriately in-
cludes making those employees whole for the delinquent
401(k) matching contributions the Respondent unlawfully
failed to make on their behalf, plus the investment growth
the amounts would have experienced.5 This relief is ap-
propriate as it restores employees to the status quo with
respect to the matching contributions that would have ob-
tained but for the Respondent’s unfair labor practice. See
Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941).
We reverse, however, the judge’s additional finding that
remedial relief properly includes the Respondent’s con-
tributing, from its own funds, the amounts employees
would have contributed to the 401(k) plan. While the Re-
spondent unlawfully failed to withhold those employee
contributions and remit them to the 401(k) plan, the Re-
spondent paid employees those amounts in their wages.
We find that ordering the Respondent to pay those
amounts again would be punitive and a windfall to em-
ployees, and we decline to award that remedy. See Tara-
corp Inc., 273 NLRB 221, 223 (1984) (“[T]he Board may
not order punitive remedies . . . . Nor should our remedies
serve as a windfall to employees or employers.”); see also
Service Roofing Co., 200 NLRB 1015, 1016‒1017
(1972).6
We do find remedial relief appropriate, however, to
compensate employees for the investment growth they
lost on their 401(k) contributions due to the Respondent’s
unlawful failure to deduct and remit those amounts to the
401(k) plan. The gravamen of the unfair labor practice
here is the Respondent’s failure to provide a 401(k) invest-
ment vehicle for employees during the delinquent period.
Providing relief for lost 401(k) investment growth on the
missed employee contributions7 compensates employees
for their loss without a punitive, windfall payment of any
kind.
exceptions. See 2017 WL 6350170. On August 10, 2018, the Court of
Appeals for the Third Circuit summarily enforced the Order.
4 The 10 employees are Maribel Gonzalez, Faimy Louis Jean, Guer-
nelle Mondesire, Margaret Ogondare, Neha Patel, Nidhi Patel, Gilma Ri-
vera, Alucienne Sainte, Lamercie St. Juste, and Enid Rivera.
5 We agree with the judge that all 10 employees are entitled to the full
amount of the Respondent’s matching contributions. We further agree
that the General Counsel’s method for calculating investment growth is
reasonable here. See Lou’s Transport, Inc., 366 NLRB No. 140, slip op.
at 8 (2018).
6 Relief for such amounts shall accordingly be deleted on remand.
7 We agree with the judge’s findings on the amounts each of the 10
employees would have contributed to the 401(k) plan had it been availa-
ble, including his findings regarding employees Gonzalez, Jean, and
Gilma Rivera.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2
We shall accordingly remand this proceeding for recal-
culation of the amounts owed the 401(k) plan for each of
the 10 employees named herein consistent with this Sup-
plemental Decision and Order Remanding.
ORDER
IT IS ORDERED that this proceeding is remanded to the
Regional Director for Region 22 for the purpose of recal-
culating the amounts owed by the Respondent to the
401(k) plan on behalf of the 10 employees and for further
appropriate action.
Dated, Washington, D.C. October 14, 2020
______________________________________
John F. Ring,
Chairman
______________________________________
Marvin E. Kaplan,
Member
________________________________________
William J. Emanuel,
Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Sharon Chau, Esq., for the General Counsel.
David F. Jasinski, Esq. (Jasinski, P.C.), for the Respondent.
William Massey (Gladstein, Reif & Meginniss, LLP), for the
Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
BENJAMIN W. GREEN, ADMINISTRATIVE LAW JUDGE. This
compliance proceeding was tried before me in Newark, New Jer-
sey, on January 7, 2020, pursuant to an amended compliance
specification issued by Region 22 of the National Labor Rela-
tions Board.
On October 26, 2017, Administrative Law Judge Kenneth W.
Chu issued a decision wherein he found that the Respondent vi-
olated Section 8(a)(5) and (1) of the Act by withholding em-
ployee contributions and employer matching contributions to a
401(k) plan.1 Judge Chu’s decision was adopted by the Board
on December 11, 2017 and the Board order was enforced by the
Third Circuit Court of Appeals on August 10, 2018.
1 Judge Chu also found that the Respondent violated Sec. 8(a)(5) and
(1) of the Act by refusing to bargain with the union bargaining repre-
sentative of a unit of licensed practical nurses (LPN). However, the rem-
edy of that violation is not in dispute and at issue here.
2 These pay dates cover pay periods from April 17, 2019 (the first day
of the Respondent’s first pay period) to January 7, 2017 (the last day of
the last pay period for which the Respondent made no contributions to a
At issue in this supplemental compliance proceeding is the
dollar amount of 401(k) contributions the Respondent shall be
ordered to make, if any, on behalf of certain employees for the
pay dates between May 5, 2016, and January 12, 2017.2 The
compliance specification included, in “Attachment A—Revised
1/7/2020,” a table reflecting certain Regional compliance calcu-
lations. The same table has been largely recreated and appended
hereto as “Attachment A.”3
In making my findings, analysis, and conclusions, I have con-
sidered the entire record and briefs filed by the General Counsel
and the Respondent.
Facts
As described in Judge Chu’s decision, on April 21, 2016, the
Respondent purchased from AristaCare at Alameda (AristaCare)
the nursing home and rehabilitation center at 303 Elm Street,
Perth Amboy, New Jersey. 1199 Service Employees Interna-
tional Union, United Healthcare Workers East, New Jersey (Un-
ion) represented a unit of LPNs employed at this facility before
and after the sale. The Union and AristaCare were parties to a
collective-bargaining agreement that included the following pro-
vision in Article 31.1:
Each employee who has completed at least one (1) years of
continuous service and worked 1,000 hours the previous year
shall be eligible to participate in the 401(k) Plan. Employer
shall match 50% of each employee’s contribution, up to a max-
imum of 3% of the employee’s gross salary.
On February 11, 2016, in anticipation of the sale, the Re-
spondent signed a “Status Quo Agreement” adopting the terms
of the Union’s contract with AristaCare. Upon the sale of the
facility in April 2016, AristaCare’s 401(k) plan was terminated.
The Respondent did not obtain a replacement 401(k) plan until
January 2017.
As noted above, the Board adopted Judge Chu’s decision that
the Respondent violated Section 8(a)(5) and (1) of the Act by
failing to immediately secure a replacement 401(k) plan when
the predecessor’s plan was terminated. Judge Chu noted in his
decision that the General Counsel sought to hold the Respondent
liable for employee contributions as well as its own matching
contributions but reserved this issue for resolution in a compli-
ance proceeding.
In calculating the monetary remedy, Regional compliance of-
ficer Rhonda Fricke did not have access to the 401(k) plan ac-
count statements or payroll records for unit employees while
they were employed by AristaCare. Fricke only had access to
the Respondent’s payroll records beginning April 2016.
The Respondent’s first pay period, for the pay date May 5,
2016, reflects deductions from the gross earnings of certain
401(k) plan). The Respondent began making appropriate contributions
to a 401(k) plan on pay date January 26, 2017, for the pay period January
8 to 21, 2017.
3 The appended table contains slightly different totals for columns J,
L, and M in the amounts of $807.23, $1524.46, and $29,091.31, respec-
tively, while the Region’s table contains totals of $807.22, $1524.45, and
$29,091.33 for the same columns.
ALAMEDA CENTER FOR REHABILITATION AND HEALTHCARE, INC.
3
employees for 401(k) contributions.4 The second pay period, for
the pay date May 19, 2016, reflects refunds to employees of the
previous pay period’s 401(k) deductions because the old Arista-
Care 401(k) plan had been terminated and had not been replaced
by the Respondent with a new one. By noting these refunded
deductions in the Respondent’s payroll, the Region identified
employees who participated in AristaCare’s 401(k) plan and the
percentage of gross earnings each employee contributed. The
payroll records also reflect whether and how much certain em-
ployees contributed to the Respondent’s 401(k) plan once a re-
placement plan was obtained and deductions were made from
employees’ pay beginning January 26, 2017 (for the pay period
January 8 to 21, 2017). (GC Exh. 5.)
The General Counsel contends that the Respondent must
make contributions to the 401(k) plan on behalf of employees
who satisfied one of the following criteria: (1) They participated
in AristaCare’s 401(k) plan prior to the sale and/or (2) they im-
mediately began contributing to the Respondent’s 401(k) plan
when it became available in January 2017. Thus, under the Re-
gion’s criteria, employees were not entitled to a monetary rem-
edy if they did not participate in the AristaCare plan and did not
immediately participate in the Respondent’s plan when it be-
came available. If an employee contributed a different percent-
age of gross earnings to the old and new 401(k) plans, the Region
used the presale percentage to calculate a remedy rather than the
postsale percentage.
The compliance specification identifies 10 employees who are
allegedly entitled to back contributions under the criteria de-
scribed above.5 Among those ten, the following nine employees
qualified by virtue of their participation in AristaCare’s 401(k)
plan: Maribel Gonzalez, Faimy Louis Jean, Guernelle
Mondesire, Margaret Ogondare, Neha Patel, Nidhi Patel, Gilma
Rivera, Alucienne Sainte, and Lamercie St. Juste. Six of these
employees also qualified because they immediately participated
in the Respondent’s plan when it became available in January
2017. The three employees who participated in the AristaCare
plan but did not immediately participate in the Respondent’s plan
when it became available were Ogondare, Neha Patel, and
Mondesire. Ogondare and Neha Patel began contributing to the
new 401(k) plan in July 2017 and April 2018, respectively, while
Mondesire never contributed to the Respondent’s plan.
Among the employees for whom a monetary remedy is
sought, only Enid Rivera did not participate in the old AristaCare
401(k) plan. Rivera qualified for a remedy under the Region’s
criteria because she immediately began contributing to the Re-
spondent’s plan when it became available in January 2017.
Among the employees who made contributions to both the old
and new plans, the following five employees contributed a
4 These deductions are identified in the payroll records (GC Exh. 5)
by the code “S4.”
5 The chart appended hereto as “Attachment B” includes the names
of each employee, their gross earnings for pay dates May 5, 2016 and
January 26, 2017, the amount deducted from each employee’s paycheck
for 401(k) contributions on those pay dates, and the percentage of gross
pay each employee contributed.
greater percentage of gross pay to the old AristaCare plan than
the new Respondent plan:6
Last
Name
First
Name
% of Gross Pay
Contribution to
AristaCare Plan
% of Gross Pay
Contribution to
Respondent Plan
Gonzalez
Maribel
4%
3%
Louis Jean
Faimy
4%
3%
Rivera
Gilma
5%
3%
Sainte
Alucienne
5%
3%
St. Juste
Lamercie
10%
5%
For all the employees who allegedly qualify for a monetary
remedy, the General Counsel seeks compensation for the Re-
spondent’s matching contributions as well as any contributions
the employees would be expected to have made on their own be-
half during the relevant period. The General Counsel also seeks
compensation for growth of such funds at an appreciation rate
pegged to the S&P 500 Index and calculated on a compounded
quarterly basis. Thus, for each employee, by quarter on a com-
pounded basis, the compliance calculation took the total contri-
bution percentage (i.e., percentage of employee contributions to
the AristaCare plan + percentage of employer matching contri-
butions), multiplied it by the employee’s gross quarterly earn-
ings, and added appreciation based on quarterly S&P 500 growth
as reflected in the Vanguard 500 fund return rates. The Respond-
ent has not offered an alternative calculation of its liability.
Analysis
The General Counsel bears the burden of establishing a mon-
etary remedy, while the Respondent may establish affirmative
defenses to reduce its liability. International Brotherhood of
Teamsters Local 25, 366 NLRB No. 99 (2018), citing Millen-
nium Maintenance & Electrical Contracting, 344 NLRB 516,
517 (2005) and Chem Fab Corp., 275 NLRB 21, 21 (1985), enfd.
mem. 774 F.2d 1169 (8th Cir. 1985). To meet her initial burden,
“the General Counsel need show only that the gross backpay
amounts contained in the compliance specification were reason-
able and not an arbitrary approximation.” Id. citing Performance
Friction Corp., 335 NLRB 1117 (2001), and Mastell Trailer
Corp., 273 NLRB 1190, 1190 (1984). Further, “when uncer-
tainty arises concerning the appropriate amount of make-whole
relief, the uncertainty is normally, and appropriately, resolved in
favor of the injured party and against the respondent, as the
wrongdoer.” Lou’s Transport, Inc., 366 NLRB No. 140 slip op.
at p. 7 (2018); Webco Industries, Inc., 340 NLRB 10, 11
(2003); Kansas Refined Helium Co., 252 NLRB 1156, 1157
(1980), enfd. sub nom. Angle v. NLRB, 683 F.2d 1296 (10th Cir.
1982).
The Respondent contends that it cannot be contractually re-
quired to match employee contributions absent evidence that
6 The Region calculated the presale contributions of Gonzalez, Louis
Jean, and Gilma Rivera as 3 percent, 3 percent, and 2 percent of gross
earnings, respectively. However, for Gonzalez, Louis Jean, and Gilma
Rivera, my calculations indicate presale contribution rates of 4 percent,
4 percent, and 5 percent, respectively. (See Attachments A and B.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4
employees made or attempted to make such contributions (or set
aside equivalent savings). According to the Respondent, the Re-
gion’s calculation is unduly speculative and based on hypotheti-
cals. The Respondent cites federal court cases for the proposi-
tion that “a contract is not to be written by the Court, even where
the Court may think the outcome is inequitable.” (R. Br. p. 7‒
8.) However, this is not an action for breach of contract. It is a
compliance proceeding based upon a statutory finding that the
Respondent unlawfully changed unit employees’ terms and con-
ditions of employment, and it is well settled that the Board has
broad discretion to fashion appropriate remedies. See Spectrum
Juvenile Justice Services, 368 NLRB No. 102 (2019). The Re-
gion’s compliance methodology does not seek to rewrite the col-
lective-bargaining agreement, but to interpret its terms under the
particular circumstances of this case in crafting a reasonable
remedy. Recently, the Board adopted a judge’s compliance find-
ing that a discriminatee was entitled to 401(k) contributions upon
an inference that the discriminatee would have contributed to the
fund during the backpay period because he did so when he was
employed by the Respondent and with an interim employer.
Lou’s Transport, Inc., 366 NLRB No. 140 slip op. at p. 7 (2018).
See also Webco Industries, Inc., 340 NLRB 10, 11 (2003).
In rejecting the Respondent’s defense, I note that employees
were never responsible for submitting contributions to a 401(k)
plan or an equivalent savings vehicle as such funds were auto-
matically deducted from employee paychecks and submitted to
the plan by AristaCare. Employees were not required to start
doing so because the Respondent failed in its obligation to con-
tinue deducting contributions once it purchased the facility.
Lastly, it is the Respondent that relies on excessive specula-
tion and hypotheticals. In Lou’s Transport, Inc., 366 NLRB No.
140 slip op. at p. 7 (2018), a compliance discriminatee was not
denied reinstatement and his backpay was not tolled even though
he stated in the underlying ULP case that he did not want to go
back to work for the respondent. The discriminatee was entitled
to a full remedy because his testimony in this regard was not of-
fered in response to a valid offer of reinstatement. Similarly
here, the Respondent’s employees did not have access to a
401(k) plan during the backpay period and it is irrelevant, as hy-
pothetical, what they did or did not do in the absence of such a
plan. Rather, as in Lou’s Transport, the better method of deter-
mining whether employees would have contributed to a 401(k)
plan during the relevant backpay period is by looking at whether
and to what extent they participated when such plans were actu-
ally available.
Matching Funds
Of the 10 employees named in the compliance specification, I
find that the following six are entitled to employer matching con-
tributions in the amount of 1.5 percent of gross earnings because
they contributed at least 3 percent of gross earnings to 401(k)
plans when those plans were available before and after the sale
of the facility: Gonzalez, Louis Jean, Nidhi Patel, Gilma Rivera,
Sainte, and St. Juste. Having participated in the AristaCare
401(k) plan through April 2016 and the Respondent’s 401(k)
plan beginning January 2017, there is no reason to believe that
these employees would not have done the same during the
interim backpay period. Further, it is reasonable to infer that the
employees would have continued to contribute at least 3 percent
of gross earnings during the backpay period in order to maximize
employer matching contributions (1.5 percent) under Article
31.1 of the Union’s collective-bargaining agreement with Aris-
taCare, as assumed by the Respondent in the February 11, 2016
status quo agreement. See Lou’s Transport, Inc., 366 NLRB No.
140 (2018).
I also find that the following three employees who contributed
over 3 percent of gross earnings to the AristaCare plan before the
sale are entitled to employer matching contributions of 1.5 per-
cent of gross earnings even though they did not immediately con-
tribute to the Respondent’s plan when it became available in Jan-
uary 2017 (or at all): Mondesire, Ogondare, and Neha Patel. It
is reasonable to infer that these employees would have continued
to contribute to the Respondent’s plan in April 2016 if such con-
tributions continued to be deducted from their paychecks. It is
not overly surprising that certain employees may have grown ac-
customed to collecting a higher net wage and, therefore, did not
immediately (or ever) elect to resume making 401(k) contribu-
tions when offered the opportunity to do so after an 8-month hi-
atus. Such an occurrence does not logically negate the inference
upon which the remedy is based.
For much the same reason, I find that the backpay computa-
tion is reasonable to the extent it relies on the percentage of gross
pay employees contributed to AristaCare’s 401(k) plan as op-
posed to the gross pay percentage of employee contributions to
the Respondent’s plan (if different). If the Respondent had
seamlessly obtained a 401(k) plan and continued deducting the
contribution percentage each employee elected for the predeces-
sor plan, there is little reason to believe employees would have
suddenly reduced that election. Conversely, employees might
have decided to reduce their contribution after a hiatus in which
they became accustomed to a higher net wage. As noted above,
such an occurrence does not logically negate the inference upon
which the remedy is based.
Lastly, I find that Rivera is entitled to employer matching con-
tributions of 1.5 percent of gross earnings even though she did
not participate in AristaCare’s 401(k) plan. Rivera contributed
3 percent of gross pay to the Respondent’s plan when it became
available in January 2017 and it is reasonable to conclude that
she would have made the same election if she was presented with
the option to do so in April 2016.
While evidence that certain employees did not make contribu-
tions in April 2016 or January 2017 (or did not contribute the
same percentage of gross earnings) may add a degree of ambi-
guity as to whether and how much those employees would have
contributed to their 401(k) plans during the backpay period, such
uncertainties are resolved against the wrongdoer in a compliance
proceeding. Lou’s Transport, Inc., 366 NLRB No. 140 slip op.
at p. 7 (2018); Webco Industries, Inc., 340 NLRB 10, 11
(2003); Kansas Refined Helium Co., 252 NLRB 1156, 1157
(1980), enfd. sub nom. Angle v. NLRB, 683 F.2d 1296 (10th Cir.
1982).
ALAMEDA CENTER FOR REHABILITATION AND HEALTHCARE, INC.
5
Employee Contributions
The General Counsel contends that “the Board has consist-
ently ordered employers that have caused employees to lose the
opportunity to contribute to a 401(k) plan to pay both the em-
ployees contributions . . ..” (GC Br. p. 2.) The Respondent con-
tends that such an order would be punitive and an employee
windfall beyond the standard make whole remedy.
In support of its position, the General Counsel cites Republic
Windows & Doors, LLC, 356 NLRB 1449, 1450, 1452 & fn. 6
(2011), Kane Steel Co., 355 NLRB No. 49 at 3‒4 & fn. 3 (2010),
and Webco Industries, 340 NLRB 10, 12‒13; & Appendix, 16‒
17 (2003). The cited footnotes in Republic Windows & Doors
and Kane Steel are not applicable to the current situation. In Re-
public Windows & Doors, the Board stated in footnote 6:
To the extent that an employee has made personal contributions
to his or her 401(k) account that have been accepted by the plan
in lieu of the Respondent’s delinquent contributions during the
period of the delinquency, the Respondent will reimburse the
employee, but the amount of such reimbursement will consti-
tute a setoff to the amount that the Respondent otherwise owes
the fund.
This footnote, and others like it, do not stand for the asserted
proposition that a Respondent must pay employees’ share of con-
tributions in addition to matching funds. The record contains no
evidence that employees made personal contributions to any
401(k) plan and the compliance calculation does not use em-
ployee contributions as a setoff to other amounts owed. In Lou’s
Transport, Inc., 366 NLRB No. 140 (2018), the compliance
specification provided for payment by the employer of an em-
ployee’s 401(k) contributions, but those contributions were de-
ducted from total gross backpay. The judge and the Board
adopted this calculation.7
However, in Republic Windows & Doors, where the employer
violated Section 8(a)(5) and (1) of the Act by failing “to remit
unit employees’ contributions to their 401(k) retirement accounts
and failing to make matching contributions on those accounts[,]”
the Board “order[ed] the Respondent to make all such contribu-
tions . . ..” 356 NLRB at 1452. Likewise, in Webco Industries,
340 NLRB 10 (2003), the judge and Board adopted a Regional
compliance calculation which included the award of employee
contributions in the amount of 12 percent of gross earnings,
which the discriminatee made before his unlawful discharge.
These decisions admittedly offer no explanation for orders that
appear to involve a windfall beyond the standard make whole
remedy. However, it could be argued that, if employees spent
all the money they were paid, they would not be in a position to
take advantage of 401(k) tax benefits by making catch-up con-
tributions. Indeed, the process of deducting contributions from
an employee’s paycheck before that money can be spent is a dif-
ferent method of forced savings than having an employee go out
of pocket to make contributions from personal savings. In any
event, whatever the rationale, the Board has ordered similarly
7 This calculation was not contested by the Respondent because, pre-
sumably, it resulted in a reduction of the Respondent’s liability.
situated employers to pay the employees’ share of 401(k) contri-
butions and I will do the same.
Method of Calculating Growth of 401(k) Contributions
The Region determined the growth of back contributions by
pegging them to the S&P 500 index, as reflected by return rates
of the Vanguard 500 fund, and compounding the calculation on
a quarterly basis. Recently in Lou’s Transport, Inc., 366 NLRB
No. 140, slip op. at p. 8 (2018), the Vanguard 500 return rates
were used for such a purpose. The Respondent did not contest
this method of calculation and did not provide an alternate cal-
culation of its own. Accordingly, I find the compliance calcula-
tion to be reasonable in this respect.
SUPPLEMENTAL ORDER
IT IS HEREBY ORDERED that the Respondent, Alameda Center
for Rehabilitation and Healthcare Inc., its officers, agents, suc-
cessors, and assigns, shall make Maribel Gonzalez, Faimy Louis
Jean, Guernelle Mondesire, Margaret Ogondare, Neha Patel,
Nidhi Patel, Enid Rivera, Gilma Rivera, Alucienne Sainte, and
Lamercie St. Juste whole by submitting to the 401(k) plans of
those employees the employee contributions and matching con-
tributions which should have been made on pay dates between
May 5, 2016 and January 12, 2017, using the method of the com-
pliance specification. However, since the compliance specifica-
tion appears to include inadvertent miscalculations of the per-
centage of gross earnings that Maribel Gonzalez, Faimy Louis
Jean, and Gilma Rivera contributed to the AristaCare 401(k)
plan, the calculation for those employees should be redone.
Dated, Washington, D.C. March 20, 2020
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6
A
B
c
D
ATTACHMENT A
G
H
K
M
Name
%
of gross
pay
deducted
for 401(k)
employee
contribution
%
Employer
Match
Owed
%
Total
deduction
and ER
match
owed
401(k)
owed for
2nd QTR
2016
Lost
Investment
for 2nd QTR
2016
401(k)
owed for
3rd QTR
2016
Lost
Investment
for 3rd QTR
401(k)
owed for
4th QTR
2016
Lost
Investment
for 4th QTR
2016
401(k)
owed for
1st QTR
2017
Lost
Investment
for 1st QTR
2017
TOTAL
Gonzalez, Maribel
3%
1.50%
4.5%
$392.00
$7.45
$486.00
$29.31
$603.00
$49.33
$98.00
$92.08
$1,757.16
Luis jean, Faimy
3%
1.50%
4.5%
$362.00
$6.88
$478.00
$28.03
$510.00
$45.01
$126.00
$86.04
$1,641.96
Mondesir, Guernelle
5%
1.50%
6.5%
$716.00
$13.60
$923.00
$54.70
$1,071.00
$90.29
$207.00
$170.08
$3,245.68
Ogundare, Margaret
10%
1.50%
11.5%
$803.00
$15.26
$809.00
$53.86
$1,359.00
$98.80
$335.00
$192.11
$3,666.03
Patel, Neha
5%
1.50%
6.5%
$675.00
$12.83
$964.00
$54.68
$1,265.00
$96.57
$197.00
$180.56
$3,445.63
Patel, Nidhi
5%
1.50%
5.5%
$739.00
$14.04
$1,010.00
$58.36
$1,401.00
$104.73
$187.00
$194.33
$3,708.46
Rivera, Enid
3%
1.50%
4.5%
$401.00
$7.62
$500.00
$30.08
$560.00
$48.71
$126.00
$92.54
$1,765.94
River, Gilma
2%
1.00%
3.0%
$173.00
$3.29
$248.00
$14.04
$404.00
$27.38
$89.00
$53.02
$1,011.72
Sainte, Alucienne
5%
1.50%
6.5%
$744.00
$14.14
$1,013.00
$58.62
$1,260.00
$100.42
$228.00
$189.03
$3,607.20
St. Just, Lamercie
10%
1.50%
11.5%
$1,106.00
$21.01
$1,588.00
$89.87
$1,687.00
$145.99
$329.00
$274.67
$5,241.53
TOTALS
$6,111.00
$116.11
$8,019.00
$471.55
$10,120.00
$807.23
$1,922.00
$1,524.46
$29,091.31
NOTES
S&P Quarterly Returns for Relevant Period
2nd QTR 2016
1.90%
3rd QTR 2016
3.31%
4th QTR 2016
3.25%
1st QTR 2017
5.53%
ALAMEDA CENTER FOR REHABILITATION AND HEALTHCARE, INC.
7
ATTACMENT B
Last Name
First Name
AristaCare 401(k) Plan
Pay Date
GC 5 p.
Gross
Pay
Cont.
Cont.
%
Respondent 401(k) Plan
Pay Date
GC 5 p.
Gross
Pay
Cont.
Cont. %
Gonzalez
Maribel
5/5/2016
62
$947.45
$37.90
4%
1/26/2017
65
$2,121.15
$63.63
3%
Louis Jean
Faimy
5/5/2016
128
$1,276.60
$51.06
4%
1/26/2017
131
$1,906.84
$57.21
3%
Mondesire
Guernelle
5/5/2016
143
$1,659.97
$83.00
5%
1/26/2017
147
N/A
Ogondare*
Margaret
5/5/2016
154
$1,284.31
$128.43
10%
1/26/2017
157
$1,928.32
$192.83
10%
Patel**
Neha
5/5/2016
185
$1,559.36
$77.97
5%
1/26/2017
193
$2,396.42
$119.82
5%
Patel
Nidhi
5/5/2016
195
$1,552.98
$77.65
5%
1/26/2017
198
$2,744.09
$137.20
5%
Rivera
Enid
5/5/2016
225
N/A
1/26/2017
228
$1,779.02
$53.37
3%
Rivera
Gilma
5/5/2016
235
$1,327.27
$66.36
5%
1/26/2017
238
$1,965.11
$58.95
3%
Sainte
Alucienne
5/5/2016
254
$1,650.63
$82.53
5%
1/26/2017
257
$2,892.48
$86.77
3%
St. Juste
Lamercie
5/5/2016
280
$1,584.10
$158.40
10%
1/26/2017
283
$2,335.08
$116.75
5%
*Ogandare, Margaret — Began participating in the Respondent's 401(k) plan on pay date July 27, 2017.
**Patel, Neha — Began participating in the Respondent's 401(k) plan on pay date April 19, 2017.