NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
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 Respondents jointly filed exceptions and a supporting brief.
The National Labor Relations Board1
has considered the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions as modified below and
to adopt the recommended Order as modified and set forth in full below.3
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 impasse,
are distinguishable. In Richmond Electrical Services, 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.
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 increased 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 engaged in a strike, and by instructing employees to remove 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
Amended Remedy
We have adopted the judge’s findings that the Respondents
unilaterally implemented new terms and conditions of employment prior to a
lawful impasse and that Respondent Victoria unilaterally and discriminatorily
withdrew benefits and uniform allowances from returning locked-out
employees. Therefore, in addition to the
relief described in the remedy section of the judge’s decision, we shall
require the Respondents to make employees whole for any loss of earnings and
other benefits resulting 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 prescribed 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 employee
Geraldine Morgan (whom the Respondent unlawfully 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,
1. Cease and desist from
(a) Suspending its employees because they support SEIU
1199, New Jersey Health Care Union (the
(b) Assisting employees in the
solicitation of signatures to decertify the Union by promising employees a job
and increased benefits if they sign a petition to decertify the
(c) Threatening employees that
they will be fired if they wear union buttons, speak to the
(d) Locking out its employees in
the absence of a legitimate and substantial business justification and to coerce
the
(e) Prematurely declaring
impasse, refusing to meet with the
(f) Unilaterally changing a
mandatory subject of bargaining by denying union representatives access to the
facility.
(g) Failing to provide the Union
with requested information that is relevant and necessary to the
(h) In any like or related
manner interfering with, restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following
affirmative action necessary to effectuate the policies of the Act.
(a) On request, bargain with the
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 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 suspension
of Marjorie Barnett and the unlawful lockout of 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 implemented
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 employees without a request from the
(e) Provide the
(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 designated by the Board or its
agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic
copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Within 14 days after service
by the Region, post at its facility in
(h) Within 21 days after service
by the Region, file with the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
B. The National Labor Relations
Board orders that the Respondent, Victoria Health Care Center,
1. Cease and desist from
(a) Threatening employees with
discharge if they engage in a lawful strike.
(b) Withdrawing benefits and
uniform allowances from employees unilaterally and because they participated in
a strike and supported SEIU 1199, New Jersey Health Care Union (the
(c) Prematurely declaring
impasse, refusing to meet with the
(d) Unilaterally changing a
mandatory subject of bargaining by denying union representatives access to the
facility.
(e) Failing to provide the Union
with requested information that is relevant and necessary to the
(f) Conditioning agreement and
return to work of employees on the
(g) Refusing to reinstate
striking employees upon their unconditional offer to return to work, locking
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, and threatening permanently to replace unlawfully
locked-out employees.
(h) In any like or related
manner interfering with, restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following
affirmative action necessary to effectuate the policies of the Act.
(a) On request, bargain with the
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 including managers, statutory supervisors 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 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, 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 lockout
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 implemented
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 employees without a request from the Union.
(f) Provide the
(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 designated by the Board or its
agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic
copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(h) Within 14 days after service
by the Region, post at its facility in
(i) Within 21 days after service
by the Region, file with the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the steps that the Respondent
has taken to comply.
It is further ordered
that the complaint is dismissed insofar as it alleges violations of the Act not
specifically found.
Dated,
Peter C. Schaumber,
Chairman
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
APPENDIX A
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
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 suspend employees because they support
SEIU 1199, New Jersey Health Care Union (the
We will
not assist employees in the solicitation of
signatures to decertify the Union by promising employees a job and increased
benefits if they sign a petition to decertify the
We will
not threaten employees that they will be fired
if they wear union buttons, speak to the
We will
not lock out employees in the absence of a
legitimate and substantial business justification and to coerce the
We will
not prematurely declare impasse, refuse to
meet with the
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
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
All full-time and regular part-time CNAs, housekeeping, 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 unlawful suspension of Marjorie Barnett and
the unlawful lockout of employees, and we
will, 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.
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
We will provide the
APPENDIX B
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
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 threaten employees with discharge if they
engage in a lawful strike.
We will
not withdraw benefits and uniform allowances
from employees unilaterally and because they participated in a strike and supported
SEIU 1199,
We will
not prematurely declare impasse, refuse to
meet with the
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
We will
not condition agreement and employees’ return
to work on the
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 accepting unilaterally implemented terms and conditions of
employment, and threaten permanently to replace unlawfully 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 following appropriate unit concerning
terms and conditions of employment and, if an understanding is reached, embody
the understanding in a signed agreement:
All full-time and regular part-time CNAs, housekeeping, laundry, and dietary employees employed by us at our Matawan 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, 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, dismissing, if necessary, any persons engaged
as replacements.
We will make the unit employees whole, with interest, 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 unlawful 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
We will provide the
Jeffrey P. Gardner, Esq., for the General Counsel.
David F.
Jasinski, Esq. and Alex Tovitz, Esq. (Jasinski
and Williams), of
Ellen
Dichner, Esq. (Gladstein, Reif & Meginniss), of
DECISION
Statement of the Case
Eleanor MacDonald, Administrative Law Judge. This case was heard in
Respondents
Wayneview and Victoria deny that they have engaged in any violations of the
Act.
On the entire
record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel and the Respondents, I make
the following[2]
Findings of Fact
i. jurisdiction
Victoria Health
Care Center is engaged in the operation of a nursing home in
ii. alleged unfair labor practices
A. Background
The following
individuals are supervisors at
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
The Union has
been recognized as the collective-bargaining representative of employees of
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 including managers,
statutory supervisors and guards within the meaning of the Act.
The most recent
collective-bargaining agreement between the Union and
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
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 including managers, statutory
supervisors and guards within the meaning of the Act.
The most recent
collective-bargaining agreement between the
The course of
the collective-bargaining negotiations is relevant 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 negotiations
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
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 negotiating
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
Nolan recalled
that the first bargaining session took place on February 23, 2005 and consisted
of a discussion of the healthcare industry and of the impact of the Medicare
cuts. At the second meeting on March 11
the employer responded to the
Tufariello, the
chief negotiator for both Victoria and Wayneview, 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
remarked 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
C. The Early Negotiations at
Odette Machado
was called by Respondent to testify about the negotiations at
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 unemployment insurance. Machado denied that she has called herself
president of 707 HEART and she denied that she had assumed 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 denied 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
Machado
described herself as the lead negotiator for
Tufariello
identified a Union document given to him at the
first
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 giving these health benefits at Wayneview and they
would not be able to get them at
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 negotiations. 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 documents 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
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
Machado recalled
that there were tentative agreements at
Respondent
called Josephine Ortiz to testify about the negotiations. Ortiz, a senior aide at
D. Off the Record Meetings
Machado
described an off-the-record meeting at which Tufariello told the Union that
Victoria did not get the same funding 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 demands 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 members 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
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
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
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
Foley recalled
two off-the-record meetings between
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 Tufariello. 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
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 tensions”
in the