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,
September 30, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On June 8, 2007, Administrative Law Judge Steven Davis issued the attached decision. The Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings as modified below,[1] and conclusions and to adopt the recommended Order. [2]
For the reasons set forth below,
we agree with the judge that the Respondent violated Section 8(a)(5) and (1) of
the Act by prematurely declaring impasse and unilaterally implementing certain
changes to its employees’ terms and conditions of employment.[3]
Facts
The Respondent operates a
nursing home and rehabilitation center. The Respondent and the
During the first negotiation
session, the
At the last bargaining session
on August 23, the Respondent made its final proposal, including an offer to pay
16 percent of payroll to the Benefit Fund.
Union negotiator Alcoff stated that if the Respondent was unwilling to
increase its contribution offer, the
Analysis
Impasse over a single issue may
create an overall bargaining impasse that privileges unilateral action if the
issue is “of such overriding importance” that it frustrates the progress of
further negotiations. CalMat Co., 331
NLRB 1084, 1097 (2000). Here, the
Benefit Fund contributions clearly constituted such an issue. The dollar amounts were significant and,
throughout most of the negotiation sessions, the parties remained steadfastly
fixed in their respective positions: the
Uncontradicted testimony
reflects that at the final negotiation session on August 23, Alcoff stated that
the
The party asserting impasse as a
defense to unilateral action bears the burden of proof on the issue. North
Star Steel Co., 305 NLRB 45 (1991), enfd.
974 F.2d 68 (8th Cir. 1992). We find
that the Respondent has failed to carry that burden here. Rather than evincing the existence of a bona
fide impasse over health insurance as of August 23, the record shows that the
parties had agreed to meet again, that the Union would be preparing counterproposals,
and that there was at least professed flexibility on health insurance
alternatives. While, the Respondent
might have reasonably doubted the sincerity of the
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent,
Dated,
Peter C. Schaumber,
Chairman
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
Laura Elrashedy, Esq., for the General Counsel.
Alex
Tovitz, Esq. (Jasinski & Williams, P.C.), of
DECISION
Statement of the Case
Steven Davis, Administrative Law Judge. This case was tried before me in
The complaint
alleges essentially that following the expiration of the collective-bargaining
agreement between the Respondent and the Union, the Respondent unlawfully (a)
implemented a 3% wage increase for all unit employees retroactive to August 14,
2005 (b) eliminated a transportation benefit providing bus/van service to and
from work for unit employees (c) issued merit bonuses to unit employees and (d)
eliminated non-standard shifts for unit employees. It is alleged that the Respondent
made these changes in mandatory subjects of bargaining in violation of Section
8(a)(5) of the Act without giving the
The complaint
further alleges that on various dates from August 31, 2005, the
The Respondent’s
answer denied the material allegations of the complaint and asserted certain
affirmative defenses which will be discussed below.2
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 Respondent, I make the following
Findings of Fact
i. jurisdiction
The Respondent,
a corporation having its office and place of business in
ii. the alleged unfair labor practices
A. Background
The Union and
the Respondent have been parties to collective-bargaining agreements for a
number of years, the
All full-time and regular part-time
licensed practical nurses, nurses aides, recreational aides, beauticians,
housekeeping aides, laundry employees and dietary employees employed by the
Employer at its Keansburg, New Jersey facility, excluding all office clerical
employees, registered nurses, professional employees, guards and supervisors as
defined in the Act.
This case arises
from negotiations between the parties to replace an expiring collective-bargaining
agreement. The prior contract, which was for a five-year term from October,
1999 through September, 2004, provided, inter alia, that the employees were
covered by the Respondent’s health insurance plan.
In October, 2003
an extension agreement requested by the
B. The Bargaining Sessions
The chief
spokesperson for the Respondent was its attorney David Jasinski. He was
accompanied by David Dennin, the Respondent’s director of finance and
occasionally by Linda Meehan, the director of human resources. The
1. The meeting held in about February 2005
The narrative
concerning the first two sessions in which Pimplaskar represented the Union is
taken from Jasinski’s testimony inasmuch as Pimplaskar, who is no longer employed
by the
The
The
In addition, the
(a) SEIU National Industry Pension Fund: 2½% of the gross earnings of each unit employee.
(b) Training and Education Fund: ½% of gross payroll.
(c) New Jersey Healthcare Workers Alliance for Quality in Long Term Care - ½% of gross payroll.
The proposal
also contained provisions for Union Activities and Communications, Seniority,
Layoff and Recall, Transfer and Promotion, Discipline and Discharge and
Labor-Manage-ment Committees.
Jasinski, whose
testimony concerning Pimplaskar’s comments was uncontradicted, stated that she
announced that certain of the
Pimplaskar also
stated that the Union was currently negotiating 40 to 45 other contracts with
nursing homes in multiemployer bargaining with the “Tuchman” group of 20
Pimplaskar made
a “laundry list” information request which included a list of unit employees,
their rates of pay, hours worked and dates of hire. Dennin stated that the
Respondent provided that information sometime thereafter. On March 8, 2005,3 Jasinski forwarded “cost reports”
information which consisted of census information for the facility, rate
schedules, and expense data including contributions paid to the Benefit Fund.
Jasinski’s letter invited Pimplaskar to call if she wanted additional
information. In his letter dated April 18, Jasinski stated that upon providing
that information he asked her if she required any other information and she
said that she did not.
2. The March 9th meeting
The Respondent
presented its first written proposal. It sought to make changes in the method
of determining eligibility for overtime. It also sought to change the
definition of part-time workers eligible to participate and receive benefits
and employer contributions to those who work 30 or more hours per week from the
contract’s definition of part-time workers as those who work 20 or more hours
per week.
The proposal
offered an entirely new grievance and arbitration provision, and suggested that
no change be made in certain other provisions of the expiring contract. No
economic proposals for wages and contributions to the various funds were made
in this proposal.
The parties discussed
their respective positions regarding the grievance and arbitration clauses.
However, Pimplaskar announced that with respect to all of the other Union
proposals “this [the Union’s initial proposal presented at the first meeting]
is the standard contract that [we] are going to negotiate and this is what [the
Union] wants and this is what [the
3. Justin
Foley becomes the
On March 21,
Jasinski was informed that Pimplaskar was being replaced as the
Foley responded
by letter of April 26 with certain of the information requested. He promised to
furnish the rest shortly, stating that the 2004 and 2005 financial reports have
not been prepared. The letter did not challenge Jasinski’s statement concerning
the
On May 14, Foley
requested additional information regarding
Jasinski took
exception to Foley’s joint request for information, noting that each facility
was separate and negotiating individually and insisted on receiving separate
letters. Thereafter, the
By letter dated
May 17, Jasinski advised Foley that he had previously provided the requested
information to Pimplaskar and was told by her that no further information was
needed. Nevertheless, Jasinski promised to provide the requested information as
soon as possible. On May 21, Foley advised that Jasinski had not provided
certain of the prior information requested.
4. The mid-May meeting
Foley stated
that the parties reviewed the outstanding requests for information, and then
discussed the
5. The June 3 meeting
Foley testified
that this session began with the parties reviewing outstanding information
requests. They then discussed non-economic terms, but no agreement was reached.
Jasinski stated
that at each of the three bargaining sessions, Foley announced that the
At hearing,
Foley denied telling Jasinski that he could not deviate from the Union’s proposals,
and further denied that his hands were tied concerning proposals that he
presented., Foley stated that the problem with the Respondent’s Benefit Fund
proposal was that the Fund’s trustees set the minimum rate for contributions to
the Fund, and that Jasinski’s later proposal to contribute 16% of gross payroll
to the fund was less than the minimum required.
The parties
signed a memorandum of agreement, at the
The following
day, June 4, Foley wrote Jasinski saying that although the information provided
was not everything he asked for he would review it. He also made an additional
request for data which he claimed was requested at the prior day’s session.
This session consumed about three hours.
6. The June 17 meeting
Foley stated
that this session began with the parties going over the outstanding information
requests. Foley testified that although the
(a) “The Employer shall pay 22.33% of
gross payroll to
participate
in the Greater NY plan effective 6/15/05.”
(b) Training and Education Fund—½% of
payroll.
(c)
(d) Pension—Increase to 2% of payroll
effective 6/15/05
and
up to 2.5% on 3/1/08.
(e) Wage increases of 4% per year plus
parity increases in
the
wage scale.
(f) Parity Increases—By the expiration
date of the contract,
the
housekeeping and dietary workers will have a minimum rate of $10/hour, CNAs
will have a minimum rate of $11/hour and LPNs a minimum rate of $22/hour.
(g) Sick Days—Increase to 12 per year.
(h) Holidays—Add 3 personal days.
(i) Vacation—Add to the current contract
that employees
employed
for 12 or more years are entitled to 5 weeks vacation.
(j) No-Frills—Employees hired before March
31, 2005 as
no-frills
employees shall be grandfathered into those positions. There shall be no other
regularly scheduled no-frills employees.
(k) The Employer may use temporary and
agency employees
for the sole purpose of filling in for
absent unit employees but make
reasonable efforts to offer the work to a unit employee.
Jasinski
protested that the proposal for a 22.33% increase to the Benefit Fund was
greater than what was previously proposed in the Union’s initial proposal presented
in February - 21% which may be increased to no more than 24% of gross payroll
during the life of the agreement.
Foley explained
that the new proposal was not necessarily more expensive since the 22.33%
increase was over the life of the agreement. He conceded, however, that the
proposal does not say that the rate will remain the same over the life of the
contract. It just states that 22.33% is payable effective June 15 with no
mention of it being over the life of the contract or that the contribution rate
is capped at 22.33%.
Foley stated
that no agreement was reached on any of the
Jasinski
testified that the
Jasinski
computed the increases sought and believing that this proposal was more costly
to the Respondent than the Union’s first proposal announced that given the
Respondent’s low census it could not afford the increases proposed by the
Dennin stated
that at this or later sessions Foley asked for additional information, much of
which had already been provided to the Union, including a list of unit
employees, rates of pay, hours worked, dates of hire and information concerning
per diem, part-time and agency employees. Dennin said that such information had
been provided at the June 3 session. This session lasted about 3½ hours.
7. The July 8 meeting
Foley stated
that following brief bargaining concerning non-economic issues, agreement was
reached on one or two of fifteen non-economic issues.
The Respondent
presented its economic proposal in which it offered to pay 16% of gross payroll
for the life of the contract to the Benefit Fund for each employee having six
months of continuous employment. It also proposed a 3% wage increase effective
October, 2005, a 3% wage raise effective October, 2006, a 2% wage increase
effective April, 2007, and a 2% raise effective October, 2007. The offer stated
that a new hire’s minimum wages were to be based on the new hire’s years of
service in the industry and her job category. The Employer proposed new hourly
rates for no-frills employees and offered to increase those rates during the
term of the contract. The proposal also included an annual merit bonus or merit
pay based on work performance to be given by the Respondent in its sole
discretion.
The Employer
also proposed to make no contributions to the Union’s Training and Education
Fund, the
Foley told
Jasinski that the
A new session
was scheduled for July 16. Foley canceled the meeting since he had tendered his
resignation and would not be employed by the
8. The August 5 meeting
Following Foley’s
resignation, Larry Alcoff was assigned as the
Alcoff stated
that he prepared a summary of the
The parties also
discussed the Respondent’s non-economic proposals including its demand to eliminate
daily overtime and overtime on the sixth or seventh day of the week. Alcoff
made a counteroffer which was rejected at the next meeting.
Alcoff presented
a written counteroffer on economic issues. It included a demand that, effective
October 1, 2005, the Respondent make Benefit Fund contributions at the rate of
22.33% of gross payroll. It further provides:
In the event that the Trustees of the
Fund determine that contributions in excess of 22.33% are required to grant the
current benefits to the employees, the parties agree that, at the Union’s sole
option and discretion, to either provide that the parties promptly meet to
propose plan revisions that will keep the contribution rates at 22.33% or make
other modifications in other parts of the economic costs of the contract such
that it covers the full percentage required by the Trustees. In the event that
the parties cannot agree on the sort of plan revisions that will keep the rates
at 22.33%, they agree to submit the dispute to final and binding arbitration
with Martin Scheinman. In no event shall the contribution requirement of the
Employer exceed 22.33% of gross payroll as above defined, except by mutual
agreement.
Alcoff explained
to Jasinski that this proposal provided for a 22.33% contribution over the life
of the contract although it does not say that. He stated that arbitrator Scheinman
did not have the authority to increase the rate beyond 22.33% because the
proposal provides that in no event shall the contribution rate exceed 22.33%
except by mutual agreement. This provision was virtually identical to that set
forth in the Tuchman master contract. Alcoff’s testimony that the
Alcoff compared
the provisions of the Tuchman contract with the
The
Jasinski stated
that he told Alcoff that this proposal was more costly than the one the
The
Alcoff termed
the Respondent’s offer to pay 16% of payroll to the Benefit Fund “not realistic”
since the rates for such coverage rose above even the 18% rate the Respondent
was then paying pursuant to the expired contract. Alcoff testified that he told
Jasinski that if the Employer was not willing to pay the cost of the insurance “we
have to look elsewhere for … another health insurance.”
No agreement was
reached at this session concerning any economic term. The only economic issues
discussed were health insurance and overtime.
Jasinski
testified about this session. He expressed frustration with the fact that
Alcoff was the
Article 35—Most-Favored-Nations
35.1. The
35.2. In the event the
35.3. This provision will apply only to the net economic impact reflected by the modifications provided for in this Agreement.
Alcoff testified
that the most-favored-nations clause had little effect on the Laurel Bay negotiations
since if a dispute under that clause was brought to arbitration, employers
would not provide the proprietary information in an arbitration hearing
involving other employers and the “net economic impact” would vary based on the
number of hours scheduled, the number of employees working and their scheduled
hours, and the amount of the patient census. He stated that net economic impact
was almost impossible to prove in arbitration.
Alcoff, although
conceding that the parties spoke about the Tuchman master contract and the
most-favored-nations clause, denied saying that that contract was a reason why
he could not deviate from his written counteroffer made at this meeting. Alcoff
was not certain that he raised the most-favored-nations clause at bargaining,
but accused Jasinski of repeatedly mentioning that clause as a “strawman.” He
told Jasinski that the Union’s proposals are “largely drawn” from the Tuchman
contract and the
Dennin testified
that Alcoff was “adamant” that he would get “everything in this proposal and
nothing less,” saying that “this is what I have at other facilities.” Dennin
explained the census problems at
Union organizer
Alan Sable stated that Alcoff explained that other nursing homes had been able
to afford the
Alcoff stated
that although the Tuchman agreement was signed by the 20 nursing homes
involved, each of those employers had separate “facility specific” parity
raises included in each contract’s “Schedule A.” In addition, at least six
employers did not agree to make parity raises. Some facilities had different
pension contributions than others. In some contracts, the wage raises were not
applied to the starting rates of pay, and in some they were. Alcoff further
stated that pension contribution rates, the number of holidays, sick days and
premium pay were different among the different employers in the Tuchman group.
However, all of the participants in the Tuchman contract contributed to the
Alcoff made no
requests for information at this meeting which lasted about three hours.
9. The August 23 meeting
The Respondent
orally modified its economic proposal made on July 8 to provide that the 3% pay
raise, scheduled to become effective on October 1, 2005, should be made
effective six weeks earlier, on August 14, 2005.
According to
Alcoff, the parties bargained “back and forth” briefly regarding health
insurance. David Dennin, the Respondent’s finance director, said that the
Employer did not want to pay any more than it was spending then for health insurance.
He reasoned that if the Employer paid the increased wage and other increases
demanded and also agreed to pay its counteroffer of 16% of gross payroll for
health insurance, that sum would equal 18% of gross payroll for health insurance
which it was currently paying.
Alcoff
admittedly responded that such a suggestion is “not going to be possible,” that
there was “no way” that the Employer could remain in the
It should be
noted that Dennin testified that he raised the issue of an alternative health
plan in bargaining with Foley and Alcoff. He said that when the Employer
protested that it could not afford the contribution rate requested he offered
to put the unit employees in the Employer’s health plan—the one the non-unit employees are
currently enrolled in and the one in which the unit employees had formerly been
a part of before they were transferred to the Union plan in about October,
2003. According to Dennin, the Union was not interested in this offer and
wanted the unit employees to remain in the
It should be noted
that the Respondent’s alleged offer to put its unit employees in the health
plan it maintains for non-unit employees is not reflected in any of the
Respondent’s written proposals and contradicts the General Counsel’s witnesses.
Thus, Alcoff testified that at the August 5 and August 23 sessions, the
Respondent’s only offer regarding health insurance was to reduce its contribution
to the
The
Alcoff testified
that during their meeting, he asked Jasinski if the parties could reach
agreement. Jasinski was “very hostile,” accusing him of personally bankrupting
the Benefit Fund, and demanding to know why he did not tell the employees that
the Fund’s reserves were recklessly spent. Jasinski said the Respondent did not
want to have the
Alcoff stated
that when he and Jasinski returned to the bargaining room, Jasinski announced
that the Respondent’s outstanding offer as amended that day was the Employer’s “last,
best and final offer.” Alcoff replied that that was “surprising” since they had
“virtually no discussion on economic issues in this bargaining.”
Dennin testified
that after he and Jasinski returned to the bargaining room, Alcoff announced
that the Union must have the 22.33% Benefit Fund increase, the 12% wage increase,
and that the wages of the lower paid employees must be brought up to $10.00 per
hour by the end of the contract. Jasinski replied that the Benefit Fund and
wage increases were too high and he could not agree that the lower paid
employees be paid $10.00 per hour by the end of the contract.
Dennin said that
both parties agreed that they were “going nowhere” and that Alcoff or Jasinski
said that they were at an impasse. Dennin must be mistaken about Alcoff’s
making that remark since Alcoff and Jasinski testified that Alcoff said that
the parties were not at impasse.
Alcoff then
began to ask many questions of Jasinski concerning his written proposal of July
8. Such questions included the effective date for wage raises for probationary
employees completing their probationary period; specific questions concerning
the pay rate for a new hire assuming four years of experience; in determining
merit pay increases, whether evaluative tools were used to measure skill,
responsibilities, safety and training; whether the Employer had a policy on
merit pay; the cost of the merit raises over the next three years; the number
of no-frills employees employed; whether the Employer had a training and education
policy or offered classes similar to the Union’s; whether any employee was
employed 10 years for purposes of vacation benefits. Jasinski replied that he
did not know the answers to any of the questions posed by Alcoff. Finally, Alcoff
asked whether the Employer costed out each of its proposals to determine how
much money it would save if they were agreed to by the
Alcoff also
asked questions concerning the Respondent’s earlier, written offer given to the
Alcoff denied
asking the questions in order to avoid a finding that impasse had occurred. At
hearing, Jasinski described Alcoff’s inquiries as hypothetical questions having
no relationship to the bargaining, were never asked or considered before that
time, and were posed only to suggest that the parties were not at impasse.
Jasinski stated that there were no outstanding requests for information at the
time he made his statement concerning the last, best final offer and the
Alcoff testified
that he then said that “we are not at impasse in this discussion. There is
wiggle room on the proposal.” He stated that no one mentioned that impasse had
occurred. Alcoff said that he would prepare a counteroffer, and asked to schedule
another bargaining session, adding that he needed information on the types of
questions he asked because he needed to know “in real terms” what the impact of
the Respondent’s proposals will be on the employees. He also said that the
Union organizer
Sable heard Alcoff deny that the parties were at impasse, saying that the Union
had reduced its proposals and that there were outstanding information requests
concerning per diem rates and no-frills workers, and the Union needed
additional information concerning merit pay and the health insurance plan provided
for non-bargaining unit workers.
Alcoff stated
that in the two sessions he had with Jasinski there was very limited “face to
face” bargaining, and that no real discussions were held regarding the economic
issues. However, Union organizer Sable he stated that the majority of the time
at the August 23 session which lasted 1½ to 2 hours, was spent at the
bargaining table. Alcoff blamed Jasinski, saying that he simply made a last
offer that was really his first offer with one modest change.
In his letter of
September 2 to Jasinski, Alcoff stated that at the end of the August 23 session
he advised Jasinski that he would review the Respondent’s proposals, cost them
out and prepare a comprehensive counterproposal, and that Jasinski said that he
would call Union president Silva to schedule the next bargaining session. He
noted that “we are clearly not at impasse.”
C. The Requests for Information and the
Alleged
Failure to Meet and Bargain
The complaint
alleges that since about October 4, 2005, the
The complaint
also asserts that on August 31, September 2, November 23, 2005, July 10, 2006
and on January 10, 2007, the
Jasinski
testified that at the time of the final bargaining session with Alcoff on August
23, 2005, there were no outstanding information requests. Alcoff conceded that
from the time he became the
Following the
final bargaining session Alcoff sent a letter on August 31 to Jasinski advising
that he is “preparing a comprehensive counterproposal on the remaining open
issues” and requested information which would enable him to do so. In summary,
the letter requested the summary plan descriptions of the various benefit plans
offered to non-union employees and the cost of total monthly premiums for the
employer and employee for those plans. The letter also requested a list of employees
(a) working 30 or fewer hours per week (b) having four or more weeks of vacation
(c) hired in the past six months and (d) employees who are no-frills employees.
The letter also requested the amount of savings projected by the Respondent’s
vacation time proposal; wage surveys and factors relied on related to merit
pay; policies on merit pay/bonuses; correspondence to the Union proposing merit
pay; cost of the merit pay proposal; and the amount of overtime paid in the
past 12 months. The Respondent’s answer asserts that the August 31 letter did
not constitute a proper request for information under the Act.
At hearing,
Alcoff gave his reasons for requesting this information. Essentially, the
information was requested in order to clarify certain parts of the Employer’s
proposal and to determine the costs and the impact on the employees of such proposals.
His request for the summary description plans provided by the Respondent to its
non-union employees related to his comments at the August 23 bargaining session
that if the Respondent’s offer of a 16% contribution to the Benefit Fund plans
was not accepted they would have to look at other plans. In considering whether
the Employer’s plans could be considered as a substitute, Alcoff requested the
descriptions of those plans.
In his letter of
September 2 to Jasinski, Alcoff wrote that at the end of negotiations on August
23 he told Jasinski that he would “review your proposals, cost them out, and
prepare a comprehensive counterproposal. In the letter, Alcoff responded to the
Respondent’s implementation of a 3% pay raise on September 1. The letter asked
whether the Respondent also implemented the other parts of its proposal such as
eliminating daily overtime and overtime on the 6th and 7th day; reducing vacation
accruals and its contributions to the Benefit Fund; eliminating benefits for
part-time employees; and whether it established a policy on merit pay. The
letter also asked Jasinski to advise him as to available dates for negotiations.
The Respondent’s answer to the complaint asserts that the September 2 letter
does not constitute a proper request for information under the Act.
On October 4 and
10, Alcoff sent letters to Jasinski asking that he provide the information that
had been requested. The letter of October 4 advised that the
On November 14,
Alcoff advised Jasinski in writing that the
On November 18,
Jasinski advised that he was available to meet on December 1, 9, and 13 or 19. “Please
call to confirm these dates. If you require any further information before this
session, please advise. At the next session, we would expect the
Jasinski’s
testimony that Alcoff never responded to his November 18 letter advising of his
availability to meet on four dates in December was contradicted by Alcoff’s
letter dated November 23, in which he stated that the Union was available for
negotiations on December 9 and 19 at 2:00 p.m. Alcoff’s letter stated that he
had not yet received the information requested in its letters of August 31 and
September 2. Alcoff also requested information concerning certain alleged unilateral
changes the Employer made. Such requests included information about the
transportation policy, information concerning the policy and wage rates for
no-frills employees, and a list of unit employees and data concerning their
dates of hire, wage rates, job titles, last wage increase, and whether they are
no-frills workers and whether they receive transportation to and from work. The
last request was necessary according to Alcoff because he needed fresh
information about the work force to supplement similar material received eight
months before, at the start of bargaining. The Respondent’s answer to the complaint
asserts that the November 23 letter does not constitute a proper request for
information under the Act.
Thus, the
parties advised each other in writing that they were available to meet on December
9 and 19. Alcoff testified that on December 8, he phoned Jasinski’s office and
spoke to former paralegal Concetta Catis to confirm that they would meet the
following day and ask that unit employees be released to attend the session.
Later that day, Jasinski sent a fax stating “since I never heard from you to
confirm the negotiation date for . . . December 9 . . . I scheduled other
matters. While I don’t believe that there is anyone to blame, it is
presumptuous on your part to call my office at 1 o’clock the day before the negotiation
session to confirm the date that I proposed long ago. I suggest in the future
that both parties confirm dates in advance to avoid this from happening again.
At your earliest convenience, please call to schedule a mutually convenient
date for all parties.”
On December 9,
Alcoff wrote saying that Jasinski offered to meet on December 9, and that he
(Alcoff) agreed to that date by letter dated November 23 and Jasinski did not respond
to that letter. Alcoff stated that he called Jasinski’s office twice on
December 8, and found that Jasinski was not available and did not return his
call. Alcoff reminded Jasinski that he had not replied to the information
requests of August 31, September 2 and November 23. Finally, Alcoff asked
Jasinski to confirm that they would meet on December 19.
On December 14,
Jasinski wrote to Alcoff claiming that Union representative Norman Degeneste
called on December 9 and said that the session scheduled for that date or for
December 19 would be postponed because of an expected snowstorm.6 He also wrote that he had “no record of
the session for December 19th and in light of the impending snowstorm suggest
alternate dates.” Jasinski proposed meeting dates for December 28 or 29 or the
week of January 9, 2006.
At hearing,
Alcoff insisted that he gave no instructions to anyone, including Degeneste, to
cancel the meetings of December 9 or 19, meeting, and that he was informed by Degeneste
that he did not advise Jasinski that that session would be canceled.
On December 28,
Alcoff, realizing that he had not responded to Jasinski’s letter in a timely
fashion, wrote that he was available on January 4, 18-20 and the week of
January 23. Alcoff did not receive a response to this letter and on January 19
sent another letter offering “all dates between February 4 and March 2.”
On January 26,
2006, Jasinski wrote asking for a copy of a contract between another employer
and the Union which the
On July 10,
Alcoff wrote to administrator Willinger requesting certain information
including a list of employees working on standard schedules and memos
concerning accommodating schedules. This information was sought because of
director of nursing Ernie Chan’s statement to employees, discussed below,
concerning the elimination of accommodating schedules. The letter also
requested information concerning the transportation benefit. Further requests
included information concerning employees receiving partial benefits and
overtime. Alcoff admitted making an inadvertent error in sending the letter to
Willinger and not Jasinski, but assumed that Willinger would forward it to him.
The Respondent’s answer to the complaint asserts that the July 10 letter does
not constitute a proper request for information under the Act, but does not
deny that it received the letter.
On October 30,
Jasinski wrote, chastising Alcoff for writing to Willinger and not to him on
July 3. The letter asserted that the Union had claimed on numerous occasions
that its “hands are tied based on the most-favored-nations clause negotiated by
other employers” and that “the Employer has no option and must join the Union’s
Health Plan and make contributions of at least 22.33%.” The letter further
stated that at the last session Alcoff stated that the parties were “light
years apart.” Further, Jasinski stated that the Respondent “early in these
negotiations” provided the Union with all the documents responsive to its
information requests but the
On December 1,
Alcoff replied, denying that the parties are at impasse. He advised that at the
last session they reviewed the open issues and the
By letter dated
January 3, 2007, Jasinski stated that he would provide the
On January 10,
in response to the Employer’s request, the
The parties did
not meet on any of the three dates suggested by Alcoff. No response to those
offers of dates was received by Alcoff and no bargaining has been conducted
since the last meeting on August 23, 2005. Jasinski stated that no further
bargaining sessions have been held because the
The
D. The Implementation of a Wage Increase
and
Merit Bonuses
The complaint
alleges and the Respondent admits that on about September 1, 2005, following
the expiration of the collective-bargaining agreement, the Respondent
unilaterally implemented a 3% wage increase for all unit employees retroactive
to August 14, 2005, consistent with its last offer. The Respondent’s answer to
the complaint asserts that the parties bargained to impasse and it therefore had
the right to unilaterally implement its last best offer. Alcoff denied that the
The complaint
also alleges and the Respondent admits that on about December 29, 2006, it
issued merit bonuses to unit employees. Alcoff stated that on January 4, 2007
he first learned, from employee McLeod, that a merit bonus was given in late
December, and that he did not receive any prior notice from the Respondent.
E. The Alleged Elimination of a Transportation
Benefit
Jennifer Horath,
the Respondent’s director of human resources testified that in September, 2005,
The school’s
representative and the interviewees themselves advised Katsevich and Horath
that they needed transportation to
On October 26,
2005, about 15 new employees began work. They were given a written “Employee
Transportation Policy” by Katsevich which in material part stated that the Respondent
“may decide to cancel the transportation service temporary [sic] or permanently
at any time for any reason, without explanations. . . . Any CNA that is not
using the
About five of
the new employees worked on each of the three shifts. A six-passenger van
picked up employees for the first shift and brought them to
In early June,
2006, Horath learned that the employees using the van service had their own
transportation and did not need the van service. By then, only about six
workers were using the service. Horath, director of nursing Ernie Chan, and
Shantell Hampton, the Respondent’s staffing coordinator met with all the
workers who used the van service and informed them that as of July 10 it would
be discontinued. Employee Latisha Reddick, one of the van users, testified that
Chan told the workers that the meeting was being held because a couple of staff
members who did not receive free transportation complained that others received
that benefit. She quoted Chan as saying
that he can become a “bastard” if he “gets pushed in the corner.”
Horath testified
that when the van policy was implemented the Union did not object, but she
conceded that she did not know whether the
Alcoff testified
that he was not notified by the Respondent that it had given a transportation
benefit nor of its intent to eliminate that benefit but only learned from
employees in June or July, 2006 that it was being discontinued. No grievance
was filed concerning the cancellation of the van service.
F. The Elimination of Non-Standard Work
Shifts
The Respondent
operates a three-shift schedule of work: 7:00 a.m. to 3:00 p.m., 3:00 p.m. to
11:00 p.m., and 11:00 p.m. to 7:00 a.m.
Sharon McLeod, a
nursing assistant at the Respondent who has been employed for 6½ years and has
been the Union’s shop steward at the facility for two to three years, worked
the 3:00 p.m. to 7:00 p.m. afternoon shift five days per week.
In about May or
June, 2006, McLeod requested permission to change her schedule so that she
would work the 7:00 a.m. to 3:00 p.m. shift on Wednesdays only so that she
could attend a class that day at 5:30 p.m. She would continue to work her
regular 3:00 p.m. to 7:00 p.m. shift the rest of the week. Her request was
granted for about one month but then she was rescheduled to work her usual 3:00
p.m. to 7:00 p.m. shift on Wednesdays and she did so.
Upon learning
that she was no longer permitted to work the morning shift on Wednesday,
McCleod asked schedule coordinator Hampton and human resources director Horath
for permission to accommodate her request and she was denied. She then filed a
written grievance on June 27 with Horath who told her that it would be given to
director of nursing Chan. The grievance was directed at
In the last few months, in executing my duties as Shop Steward, I have had to voice numerous complaints that staff have brought to me regarding the unfair practices she [Hampton] has been employing with regards to posting and allotment of overtime slots in the schedule.
Since this time I have noticed a definite change in her behavior towards me that could be deemed discriminatory.
Firstly, I made a verbal request for a change in my schedule so that I could work on Wednesday mornings instead of Wednesday evenings. For a time this request was honored, but since making complaints about her work, I have been told that this change can no longer be accommodated. However, as a longstanding employee of the facility for over six years, I feel that this treatment is unfair because I have never made a request for a schedule change. Yet during this time I have seen numerous employees come and go who have requested schedule changes and have had their requests granted.
The letter
further stated that McLeod received no response to her requests for time off or
for vacation, and noted that she spoke to management about
Nursing staff
meetings were held on the following two days and were attended by 25 and 30
employees, respectively, at which Chan and Horath were present.
According to
employee McLeod, Chan announced that the meeting concerned “special scheduling.”
He noted that he has tried in the past to accommodate the staff when they
needed to change their work time due to child care or school, but he is “in a
situation and when he feels as if he’s cornered, he can become a bastard.” He
said that 11 employees have special schedules and he would speak to each one
individually about their schedules.
Employee Wanda Lewis
quoted Chan as saying that many employees were asking for special privileges
such as days off and that he was being “pushed up against the wall” because “everyone
was asking for the same days” and he could no longer accommodate these special
schedules.
Employee Reddick
stated that at the meeting concerning the van service which took place at about
the time of the meetings relating to the accommodated schedules, Chan said that
many employees complained to the
McLeod stated
that two or three days after the meetings, Horath passed her in the hallway and
asked how she was doing. McLeod replied “I’m doing.” Horath responded that
McLeod did not look very happy and McLeod answered that she was not happy
because it appeared that 11 people were being punished because she asked for a
schedule change. Horath responded that when she filed the grievance and used
the word “discrimination” Chan “took it seriously.” Horath denied that this
conversation occurred.
McLeod testified
that about one month later, she was asked by Joel Willing, the Respondent’s
president and administrator to meet with him in his office. He told her that
she has been employed for six years and he has always tried to accommodate her.
They then discussed her grievance. McLeod explained that she needed to attend a
class on Wednesday evening but she is scheduled to work at that time. She
suggested that her day off on Thursday be changed to Wednesday. Willing agreed
and the grievance was settled in that manner. Thereafter, McLeod continued to
have a day off on Wednesday. Apart from only one month in May or June in which
she worked 7:00 a.m. to 3:00 p.m. on Wednesdays, she no longer was permitted to
work that shift.
Human resources
director Horath testified that she brought McLeod’s request for a schedule
change to Chan who said that granting the request would not be possible. After
McLeod filed her grievance, Horath again spoke to Chan who said he wanted to “look
more closely” at the issue of accommodated schedules and how they affected
staffing at the nursing home. At that time he identified 11 employees who he believed
were receiving accommodated schedules and decided that such schedules would be
eliminated. Chan did not testify.
Horath stated
that at the meetings with the staff, Chan mentioned that 11 employees received
accommodated schedules which would be eliminated, but that he would meet with
the employees to discuss the matter. Horath at first testified that Chan said
nothing else at the meeting, but then on cross-examination noted that he said
that all the requests for accommodating schedules are “becoming overwhelming,”
that 11 people receive such schedules, and that he “can be a mean bastard.”
Horath did not recall him saying that he was being pushed against a wall or
corner.
After the
meetings, Horath examined the collective-bargaining agreement and noticed that
it provided that employees must work every other weekend (Saturday and Sunday).
She decided that as long as employees worked every other weekend they could
retain their accommodated schedules. She determined that of the 11 employees
receiving accommodated schedules, only three, Ara Awura, Juliana Jones and
Simone Mentor, did not work every other weekend. She reported this to Chan,
noting that there was no need to alter the schedules of the other eight workers.
The expired
contract further provides that the regular work week shall be 37.5 hours consisting
of five consecutive days per week but the contract does not state on which specific
days of the week the employee must work except, as noted above, employees must
work every other weekend.
The three
workers were told that they had to work every other weekend. Horath testified
that she sought to comply with the expired collective-bargaining agreement and
for that reason required the three employees whose schedules were accommodated
by not working every other weekend to work every other weekend.7
McLeod’s
daughter, Juliana Jones, was one of the three employees with accommodated
schedules. She worked every Saturday but did not work on Sundays because of her
school schedule. In late August she was told by Chan that she would have to
work one Sunday per month pursuant to the contract and that the Respondent
could no longer accommodate her requested schedule of not working Sundays.
The Respondent
asserts that the expired contract’s provisions permitted it to act as it did,
as follows:
9. Work Week
F. The Employer is to provide scheduling
of one weekend on with the following weekend off for all employees so that all
employees will be on duty one weekend and off duty the following weekend.
21. Management Rights
The management of the establishment and
the direction and control of the property and work force shall remain with the
Employer. The rights herein described shall include but not be limited to: the
right to hire; lay off; discharge for just cause; in case of emergencies to
require that duties other than those normally assigned be performed except that
“emergencies” shall not exist for longer than two days; to make reasonable
working rules and regulations of procedure and conduct, and to determine work
shifts. Provided however, that the exercise of all these rights must be
consistent with the terms and conditions of this Agreement and are not to be
used as to discriminate against any person by reason of Union membership.
Analysis and Discussion
i. the alleged unilateral changes
A. Was Impasse Reached
The complaint
alleges that the Respondent made certain unilateral changes in its employees’
terms and conditions of employment. “The general rule is that when parties are
engaged in negotiations for a new agreement an employer’s obligation to refrain
from unilateral changes encompasses a duty to refrain from implementation
unless and until an overall impasse has been reached on bargaining for the
agreement as a whole.” Pleasantville
Nursing Home, 335 NLRB 961, 962 (2001), citing Bottom Line Enterprises, 302 NLRB 373 (1991). An employer violates
Section 8(a)(5) and (1) of the Act by implementing its final bargaining
proposals without reaching a bargaining impasse. Cotter & Co., 331 NLRB 787, 787–788 (2000). The Respondent argues that an impasse in
bargaining was reached.
In Taft Broadcasting Co., 163 NLRB 475, 478
(1967), the Board defined impasse as a situation where “good-faith negotiations
have exhausted the prospects of concluding an agreement.” As later set forth in
Hi-Way Billboards, Inc., 206 NLRB 22,
23 (1973), the Board stated:
A genuine impasse in negotiations is
synonymous with a deadlock: the parties have discussed a subject or subjects in
good faith, and, despite their best efforts to achieve agreement with respect
to such, neither party is willing to move from its respective position.
The burden of
demonstrating the existence of impasse rests on the party claiming impasse—here the Respondent. Serramonte Oldsmobile, Inc., 318 NLRB 80, 97 (1995). The question
of whether a valid impasse exists is a “matter of judgment” and among the
relevant factors are the “bargaining history, the good faith of the parties in
negotiations, the length of the negotiations, the importance of the issue or
issues as to which there is disagreement, [and] the contemporaneous understanding
of the parties as to the state of negotiations.” Taft, above at 478.
Regarding
bargaining history,
Although eight
bargaining sessions were held, the first four meetings were not productive
inasmuch as no economic proposals were presented at those meetings. The
Another factor,
the good faith of the parties, is put in question by the Respondent. It asserts
that the
In addition, the
Respondent asserts that the
The main issue
as to which there was basic disagreement was an important one—the contribution to the Benefit Fund. The
parties seemed far apart on this issue with the
Accordingly, it
is clear that the
Indeed, there is
nothing in the
Impasse over a
single issue may create an overall bargaining impasse that privileges
unilateral action if that issue is “of such overriding importance” to the
parties that the impasse on that issue frustrates the progress of further negotiations.
Calmat Co., 331 NLRB 1084, 1087
(2000). Because the Benefit Fund increase was an issue of such critical and
overriding importance, the parties’ possible impasse over that issue until
August 23 justified the Respondent’s belief that further bargaining would be
futile. However, if impasse occurred, it was broken at the final, August 23
session when Alcoff suggested that the
Regarding the
final factor, the
The evidence
supports a finding that, on August 23 Alcoff was willing to consider other
health plans. Thus, his credited testimony was that following the signing of
the Tuchman agreement, in 2005 the Union signed contracts with six named
nursing homes in
The Union
demonstrated its willingness to compromise by Alcoff’s acceding to the
Respondent’s objections to the
“For impasse to
occur, both parties must be unwilling to compromise.” Grinnell Fire Protection Systems Co., 328 NRLB 585, 585 (1999),or
believe that further proposals could no longer be fruitful. Huck Mfg. Co. v. NLRB, 693 F.2d 1176,
1186 (5th Cir. 1982); Larsdale, Inc.,
310 NLRB 1317, 1318 1993). “Impasse can exist only if both parties believe that
they are ‘at the end of their rope.’” Cotter
& Co., 331 NLRB 787, 788 (2000). Thus, there must be a contemporaneous
understanding by both parties that they had reached impasse.
In Cotter & Co., 331 NLRB 787, 788
(2000), in finding that no impasse had taken place, the Board noted that prior
to the respondent’s declaration of impasse, there had been movement on
important issues and the union had demonstrated flexibility. Here too, on
August 23, the
In light of
Alcoff’s protestations and questions after impasse was declared on August 23,
his offer to prepare a counterproposal, and agreement by both sides to meet
again, it appears that the “contemporaneous understanding” of the parties at
that time regarding the state of the negotiations weighs against a finding that
a valid impasse was reached.
J.
D. Lunsford Plumbing, 254 NLRB 1360, 1364–1365 (1981); Calmat Co., 331 NLRB 1084, 1099 (2000);
and Richmond Electrical Services, all
cited by the Respondent, may be distinguished in that the unions in those cases
refused to accept any terms different than standard, area contracts and in Richmond, the union conceded that the
most favored nations clause precluded it from agreeing with the employer on a
lower wage than the one in the industry-wide agreement. Here, however, the
“It is well
settled that parties have a continuing obligation to bargain even though they
have reached a lawful impasse.”
As a recurring feature in the bargaining
process, impasse is only a temporary deadlock or hiatus in negotiations “which
in almost all cases is eventually broken, through either a change of mind or
the application of economic force.” . . . Furthermore, an impasse may be
“brought about intentionally by one or both parties as a device to further,
rather than destroy, the bargaining process.” . . . Hence, “there is little warrant for regarding
an impasse as a rupture of the bargaining relation which leaves the parties
free to go their own ways.”
As the court
stated in Taft, “although some bargaining
may go on even in the presence of a deadlock, it is a “fundamental tenet of the
Act that even parties who seem to be in implacable conflict may, by meeting and
discussion, forge first small links and then strong bonds of agreement. . . . The Board’s finding of impasse reflects its
conclusion that there was no realistic possibility that continuation of
discussion at that time would have been fruitful.” Television Artists v. NLRB, 395 F.2d 622, 628 (D.C. Cir. 1968). “Anything
that creates a new possibility of fruitful discussion (event if it does not
create a likelihood of agreement) breaks an impasse . . . [including]
bargaining concessions implied or explicit.” PRC, 280 NLRB 615, 636 (1986). Here, Alcoff’s statements at the
August 23 session that the
In finding that
no impasse occurred, the Board in NewcorBay
City Division, above at 1239, observed that when the respondent asserted
that the parties were at impasse, the union agent asked to continue bargaining
and assured the employer that it was prepared to negotiate. It was expected
that the union would make concessions depending on what information the
employer provided. The Board found that no impasse occurred even though the
union “had not yet offered specific additional concessions, but only declared
its intention to be flexible and continue bargaining.” See Ead Motors, above at 1064. The Board also noted that although a “wide
gap” existed between the parties’ positions, no impasse occurred where there
was a possibility of further movement on important issues. Newcor, above at 1238–1239. Similarly, the evidence here shows that
the Union officials were not at the end of their negotiating rope, but were
ready and apparently willing to negotiate further.
As in Serramonte Oldsmobile, 318 NLRB 80, 98
(1995), at the final bargaining session, “all the elements of a genuine impasse
in bargaining were in place.” However, in Serramonte
as here, Alcoff’s statements represented “serious movement—a substantial effort” to bridge the gap in
positions. Thus, Alcoff’s statement that the
Similar to the
instant case, in Grinnell Fire Protection
Systems Co., 328 NLRB 585, 586 (1999), the Board found that no impasse had
occurred where the union had not yet offered specific concessions, but on the
last day of negotiations had declared its intention to be flexible, said it did
not want impasse, sought another bargaining session and asked for a federal mediator.
“The essential question is whether there has been movement sufficient ‘to open
a ray of hope with a real potentiality for agreement if explored in good faith
in bargaining sessions.’”
Rochester
Telephone Corp., 333 NLRB 30, 65 (2001), cited by the Respondent, is distinguishable.
The Board held there that “a party’s bare assertions of flexibility on open
issues and its generalized promise of new proposals [do not clearly establish]
any change, much less a substantial change in that party’s negotiating
position. . . . Such a change must
surely encompass a new position or specific proposals responsive to the
employer’s bargaining proposals.” Here, the
The Respondent
asserts that Alcoff asked numerous questions at the end of the August 23
bargaining session in an attempt to preclude an otherwise valid impasse. E.I. du Pont & Co., 346 NLRB 553,
558 fn. 9 (2006). Although there is some support for finding that Alcoff
desperately asked a large number of questions of Jasinski at the last session
in order to forestall a finding of impasse, and perhaps he did so inasmuch as
Jasinski declared that impasse had occurred, nevertheless, he asked those
questions in a good-faith effort to explore the Respondent’s proposals and
prepare a counteroffer responsive to those proposals. He also indicated a
willingness to meet again.
I thus cannot
find that the
In ACF Industries LLC, 347 NLRB 1040, 1043
(2006), cited by the Respondent, the Board found that the union’s request for
information made after months of extensive bargaining and after its rejection
of the employer’s final offer was “purely tactical and was submitted solely for
purposes of delay.” Unlike here, the Board noted that no negotiations were
scheduled and the union showed no interest in post-implementation bargaining.
Even assuming
that there had been impasse before the end of the August 23 session, there was
no legally cognizable impasse on September 1, the date of the Respondent’s
unilateral implementation of the wage increase. This is so because any impasse
was broken when the
The mere fact that the
It thus cannot
fairly be said that by the end of the August 23 session or thereafter, the
parties had exhausted all possibilities of reaching agreement. Accordingly, the
Respondent’s declaration of impasse, implementation of parts of its final
offer, and unilateral changes in its employees’ terms and conditions of employment
were premature and violated Section 8(a)(5) and (1) of the Act.
B. The Alleged Unilateral Changes in
Conditions
of Employment
Section 8(a)(5)
prohibits an employer from unilaterally instituting changes regarding wages,
hours, and other terms and conditions of employment before reaching a good
faith impasse in bargaining. NLRB v. Katz,
369
The complaint
alleges that following the expiration of the collective-bargaining agreement on
March 31, 2005, the Respondent made unilateral changes in certain mandatory subjects
of bargaining with respect to the terms and conditions of its employees without
giving the
I have found
above that the parties had not reached impasse in bargaining, and that if an
impasse was reached it was broken at the final bargaining session on August 23.
In addition, it
is well settled that a “contractual reservation of management rights does not
extend beyond the expiration of the contract in the absence of evidence of the
parties’ contrary intentions.”
Even assuming
that the management rights clause survived the expiration of the contract, a
unilateral change in a mandatory subject of bargaining is permitted only if the
union clearly and unmistakably waives its right to negotiate over the changes.
See Metropolitan Edison co. v. NLRB,
460
1. The implementation of a wage increase
The complaint
alleges and the Respondent admits that on about September 1, 2005, following
the expiration of the collective-bargaining agreement, it implemented a 3% wage
increase for all unit employees retroactive to August 14, 2005. The Respondent’s
answer to the complaint asserts that the parties bargained to impasse and it
therefore had the right to unilaterally implement its last best offer.
First, inasmuch
as I have found above that no legally permissible impasse occurred, the
Respondent was not privileged to implement its 3% wage offer. Second, the Respondent
gave no notice to the
2. The issuance of merit bonuses
The complaint
also alleges and the Respondent admits that on about December 29, 2006, it
issued merit bonuses to unit employees. The Respondent’s answer asserts that “any
wage adjustments . . . were consistent with its legal obligations to the
The expired
contract states that “nothing contained herein shall prevent the Employer from
giving merit increases, bonuses, or other similar payments provided the
I credit Alcoff’s
undisputed testimony that no notice was given to the
I also find, as
set forth above, that no valid impasse had been reached at the parties’ last
bargaining session, and that no valid impasse existed at the time of the
implementation of merit bonuses 16 months after the last bargaining session. Accordingly,
inasmuch as no impasse had occurred at the time the bonuses were implemented,
the Respondent could not validly implement the increases.
Assuming that
impasse had occurred, ordinarily, an employer may establish new terms and
conditions of employment as set forth in its bargaining proposals. However, an
exception exists where clauses confer on an employer “broad discretionary
powers that effect recurring unilateral decisions regarding changes in the
employees’ rates of pay. . . . Allowing
the employer to implement upon impasse a clause that reserved the right to unilaterally
exert unlimited managerial discretion over future pay increases would be so
inherently destructive of the fundamental principles of collective bargaining
that it would not be sanctioned as part of a doctrine created to break impasse
and restore active collective bargaining.” McClatchy
Newspapers, 321 NLRB 1386, 1391 (1996).
Even if a valid
impasse was reached, merit increases, being a mandatory subject of bargaining
involving the application by the Respondent of “unlimited managerial discretion
over future pay increases, i.e., without explicit standards or criteria. . . .”
could not have been implemented without bargaining over the method of
implementation. McClatchy Newspapers,
above at 1390. “Such a result would be antithetical to our statutory system of
collective bargaining meant to promote industrial stability.” McClatchy, above at 1391. See Colorado-Ute Electric Assn., 295 NLRB
607, 609 (1989). In this connection it should be noted that the facts in McClatchy are similar to those here. In McClatchy, the expired agreement
included a merit increase pay system which, as here, gave the employer “ultimate
discretion over the timing and amount of individual merit increase” and which
were not subject to the grievance-arbitration provisions of the contract. See NLRB v. Katz, 369
I accordingly
find and conclude that the Respondent’s issuance of merit bonuses violated
Section 8(a)(5) of the Act.
3. The elimination of a transportation benefit
It is alleged
that the Respondent unilaterally unlawfully eliminated a transportation benefit
providing bus/van service to and from work for unit employees.
The Respondent
denies that its actions violated the Act and alternatively asks that this
allegation be deferred to the grievance-arbitration provisions of the parties’ contract.
Regarding its request for deferral of this allegation, the Respondent argues
that it has continued to process grievances arising under the contract and
offers, in its brief, to waive any timeliness defenses and proceed directly to
arbitration. I find that deferral is inappropriate inasmuch as the contract
expired 16 months before the elimination of the transportation benefit.
Accordingly, “there is no contract in existence under which the parties are
mutually bound by an agreed-upon grievance-arbitration procedure.” Arizona Portland Cement Co., 281 NLRB
304 fn. 2 (1986).
It is clear that
providing free transportation to its employees is a term and condition of employment
and is thus a mandatory subject of bargaining.
It is undisputed
that the Respondent never notified the
By failing to
notify the
4. The elimination of non-standard work shifts
It is alleged
that the Respondent unilaterally eliminated non-standard work shifts for its
unit employees in violation of Section 8(a)(5) of the Act and in violation of
Section 8(a)(3) of the Act.
As set forth
above, shop steward Sharon McLeod requested and was granted, for about one
month, a change in her schedule so that she could work the 7:00 a.m. to 3:00
p.m. shift instead of the 3:00 p.m. to 7:00 pm. shift on Wednesdays. Thereafter,
that accommodation was denied. It is undisputed that no notice was given to the
The Respondent’s
defense to this allegation is that the management rights clause in its expired
contract permitted it to take this action. The management rights clause
provides that the Respondent has the right to “to determine work shifts.” As I
have found above, the management rights clause did not survive the expiration
of the contract.
The evidence
supports a finding that 11 employees had accommodated schedules where, for one
reason or another, their work schedules differed from those they were assigned
by the Respondent. They had apparently requested those different schedules as
an accommodation and were granted those accommodated schedules.
The Respondent’s
reaction to McLeod’s filing of a grievance to the elimination of her
accommodated schedule was to investigate which of the 11 workers were not
adhering to the contract’s requirement that they work every other weekend.9 It determined that only three employees
were not working every other weekend as required. It was decided that the other
8 employees, who did work every other weekend could retain their accommodated
schedules. However, although McLeod apparently did work every other weekend,
she was not permitted to retain her accommodated schedule.10 No evidence was adduced as to whether
employees other than McLeod who enjoyed accommodated schedules in fact retained
those schedules as testified by Horath although she quoted Chan as saying that
the accommodated schedules of all 11 employees would be eliminated.
Thus, although
McLeod worked every other weekend she was not permitted to retain her accommodated
schedule which she had enjoyed for one month, and pursuant to which she worked
the early shift on Wednesdays. The fact that the matter was subsequently
settled by changing her day off to Wednesday at her request does not alter the
fact that her accommodated schedule was unilaterally changed by the Respondent
without notice to the
Inasmuch as the
General Counsel has the burden of proving that the accommodated schedules of
the eight employees were actually eliminated, and since there is no evidence to
contradict Horath’s testimony that the eight employees other than McLeod
retained their accommodated schedules, the affirmative Order issued herein will
be confined to McLeod.
I accordingly
find that the Respondent, in violation of Section 8(a)(5) of the Act eliminated
the accommodated schedule of Sharon McLeod unilaterally without offering to
bargain with the
The complaint
also alleges that the accommodated schedules were eliminated in retaliation for
the employees’ union activity. The evidence supports this allegation. As set forth
above, shop steward McLeod’s grievance which complained that other employees
were granted accommodated schedules, prompted a meeting by nursing director
Chan at which he announced that the accommodated schedules of 11 employees
would be eliminated. McLeod’s testimony, corroborated in material part by
official Horath, quoted Chan as saying that such requests are “becoming
overwhelming,” he believes that he is being “cornered” and can be a “bastard.”
There was no
evidence as to why such requests were overwhelming and what prompted Chan to announce
that he could be a “bastard”. Inasmuch as the meetings of all nursing staff
were held shortly after McLeod filed the grievance, it is clear that Chan’s announcement
was related to that grievance. His reaction to the grievance complaining that
other employees enjoyed such accommodated schedules was his announcement that
all accommodated schedules would be eliminated. I accordingly find that the
counsel for the General Counsel has made a prima facie showing that the
elimination of McLeod’s accommodated schedule was motivated by her filing the
grievance. Wright Line, 251 NLRB 1083
(1980).
The Respondent
has not met its burden of proving that it would have eliminated McLeod’s
accommodated schedule if she had not filed a grievance. It gave no reasons why
it did not restore her schedule as it had, according to Horath, decided not to
eliminate the schedules of those who worked every other weekend. Although
McLeod suggested that she change her day off so that she could attend class on
Wednesday evening, such a change should not have been necessary. I accordingly
find and conclude that the Respondent eliminated McLeod’s accommodated schedule
in violation of Section 8(a)(3) of the Act.
In addition, I
find that Chan’s announcement that all accommodated schedules would be
eliminated violated Section 8(a)(1) of the Act.
ii. the
It is alleged
that on August 31, September 2, November 23, 2005, July 10, 2006 and January
10, 2007, the
The five letters
requesting information and Alcoff’s reasons for the requests are discussed in
detail above. Broadly, the five letters requested information (a) so that the
Union could prepare a counterproposal to the Respondent’s final offer (b) clarifying
the Respondent’s proposals (c) regarding terms and conditions of employment of
the unit employees (d) concerning whether the Respondent implemented other
parts of its final offer (e) concerning alleged unilateral changes made by the
Respondent (f) including a list of employees with their dates of hire, wage
rates, benefits, etc. to update previous information received.
As set forth
above, I have found that no valid impasse has occurred. Even assuming, however,
that impasse took place, an employer has an obligation to furnish information
in order to enable the union to perform its duties as the collective-bargaining
representative of the unit employees. NLRB
v. Acme Industrial Co., 385
In Caldwell Mfg. Co., 346 NLRB 1159, 1159–1160
(2006), the Board set out the relevant law:
An employer’s duty to bargain includes a
general duty to provide information needed by the bargaining representative to
assess claims made by the employer relevant to contract negotiations.
Generally, information pertaining to employees within the bargaining unit is
presumptively relevant. . . . The burden
to show relevance is not “exceptionally heavy,” and “the Board uses a broad,
discovery-type of standard in determining relevance in information requests.”
Moreover, the
Respondent’s own bargaining positions made the requested information directly
relevant. In
I accordingly
find that the information requested in the five letters, all of which was
presumptively relevant in that it pertained to the unit employees, was
necessary for and relevant to the performance of the
The Respondent’s
failure to furnish the information requested violated Section 8(a)(5) of the
Act.
iii. the respondent’s alleged failure to meet
and bargain
It is alleged
that since October 4, 2005, the
Section 8(d) of
the Act defines the duty to bargain collectively as the mutual obligation of
the parties to “meet . . . and confer in good faith. . . .” “It is well settled that parties have a continuing
obligation to bargain even though they have reached a lawful impasse.
In its October
4, 2005 letter, the
As Jasinski had
previously committed to meet on December 19, Alcoff immediately sought to hold
him to that date but Jasinski claimed that Union agent Degeneste called to cancel
that meeting due to an impending snowstorm. Alcoff credibly denied that
Degeneste would have or could properly have canceled the meeting, particularly
since the parties had not met for nearly four months and the
In late
December, Alcoff wrote, and suggested four meeting dates in January, 2006. No
response was received and Alcoff wrote again on January 19, stating that he was
available on every day between February 4 and March 2. No response to this
offer was made.
Despite Jasinski’s
claim in his October 30, 2006 letter that he was willing to meet, he has not
replied to a number of the Union’s requests to meet and bargain and in fact has
not met with the
The above makes
it clear that the Respondent had no intention of fulfilling its obligation to
meet and bargain with the
The Respondent
claims that it did not meet with the Union because the
Based on the
above, I find and conclude that the Respondent has not met its obligation to
meet and bargain with the
Conclusions of Law
1. The following
employees constitute a unit appropriate for collective-bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time
licensed practical nurses, nurses aides, recreational aides, beauticians,
housekeeping aides, laundry employees and dietary employees employed by the Employer
at its Keansburg, New Jersey facility, excluding all office clerical employees,
registered nurses, professional employees, guards and supervisors as defined in
the Act.
2. At all times
material herein the
3. The
Respondent violated Section 8(a)(5) and (1) of the Act by prematurely declaring
impasse and unilaterally implementing certain changes in its employees terms
and conditions of employment when the parties were not at a valid, good-faith
impasse in bargaining.
4. The
Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing
a 3% wage increase for unit employees.
5. The
Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally
eliminating a transportation benefit providing bus or van service to and from
work for unit employees.
6. The
Respondent violated Section 8(a)(5) and Section 8(a)(3) and (1) of the Act by
unilaterally ending an accommodated schedule for Sharon McLeod.
7. The
Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally issuing
merit bonuses to unit employees.
8. The
Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing
to supply information requested by the Union in its letters of August 31,
September 2, November 23, 2005, July 10, 2006 and January 10, 2007, which was
necessary for and relevant to the performance of the Union’s duties as the
exclusive collective-bargaining representative of the unit employees
9. The
Respondent violated Section 8(a)(5) and (1) of the Act by failing to meet with
the
10. The
Respondent violated Section 8(a) (1) of the Act by announcing to its employees
that their accommodated schedules would be eliminated.
Remedy
Having found
that the Respondent has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. Specifically, inasmuch as I
have found that no legally valid impasse in bargaining has been reached, I
recommend that the Respondent be ordered to rescind the unilateral changes it
made on or after April 1, 2005, but nothing in the Order is to be construed as
requiring the Respondent to cancel any unilateral changes that benefited the
unit employees without a request from the Union. I shall order the Respondent
to make whole the unit employees for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of proper offer of
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).
On these
findings of fact and conclusions of law and on the entire record, I issue the
following recommended11
ORDER
The Respondent,
1. Cease and
desist from
(a) Failing and
refusing to bargain in good faith over the terms and conditions of a successor
collective-bargaining agreement with SEIU 1199 New Jersey Health Care Union as
the exclusive bargaining representative of the employees in the following unit:
All full-time and regular part-time
licensed practical nurses, nurses aides, recreational aides, beauticians,
housekeeping aides, laundry employees and dietary employees employed by the
Employer at its Keansburg, New Jersey facility, excluding all office clerical
employees, registered nurses, professional employees, guards and supervisors as
defined in the Act.
(b) Implementing
its last offer to the
(c) Making
unilateral changes in its unit employees’ terms and conditions of employment
without first bargaining with the
(d) Failing and
refusing to supply information that is relevant and necessary to the
(e) Failing to
meet with the
(f) Announcing
to its employees that their accommodated schedules would be eliminated.
(g) 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
licensed practical nurses, nurses aides, recreational aides, beauticians,
housekeeping aides, laundry employees and dietary employees employed by the
Employer at its Keansburg, New Jersey facility, excluding all office clerical
employees, registered nurses, professional employees, guards and supervisors as
defined in the Act.
(b) On request,
cancel and rescind all terms and conditions of employment which it unlawfully
implemented or unlawfully eliminated on and after April 1, 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
(c) At the Union’s
request, restore to unit employees the terms and conditions of employment that
were applicable prior to April 1, 2005, and continue them in effect until the
parties either reach an agreement or a good-faith impasse in bargaining.
(d) At the
(e) Make whole
the unit employees for any losses suffered by reason of the unlawful unilateral
changes in terms and conditions of employment, on and after April 1, 2005, plus
interest.
(f) Furnish to
the Union in a timely manner the information requested in the
(g) Within 14
days from the date of the Board’s Order, remove from its files any reference to
the unlawful elimination of Sharon McLeod’s accommodated schedule, and within 3
days thereafter notify her in writing that this has been done and that such
action will not be used against her in any way.
(h) 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.
(i) Within 14
days after service by the Region, post at its facility in
(j) 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.
Dated,
APPENDIX
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 fail or refuse to bargain in good faith over the terms and
conditions of a successor collective-bargaining agreement with SEIU 1199 New
Jersey Health Care Union as the exclusive bargaining representative of the employees
in the following unit:
All full-time and regular part-time
licensed practical nurses, nurses aides, recreational aides, beauticians,
housekeeping aides, laundry employees and dietary employees employed by the
Employer at its Keansburg, New Jersey facility, excluding all office clerical
employees, registered nurses, professional employees, guards and supervisors as
defined in the Act.
We will not implement our last offer to the Union or parts of our last
offer before we and the
We will not make unilateral changes in your terms and conditions of
employment without first bargaining with the
We will not fail or refuse to supply information that is relevant and
necessary to the
We will not fail to meet with the
We will not announce to you that accommodated schedules would be
eliminated.
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, 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
licensed practical nurses, nurses aides, recreational aides, beauticians,
housekeeping aides, laundry employees and dietary employees employed by the
Employer at its Keansburg, New Jersey facility, excluding all office clerical
employees, registered nurses, professional employees, guards and supervisors as
defined in the Act.
We will on request, cancel and rescind all terms and conditions of
employment which we unlawfully implemented or unlawfully eliminated on and after
April 1, 2005, but nothing in this Order shall be construed as requiring us to
cancel any unilateral changes that benefited you without a request from the
Union.
We will at the Union’s request, restore to unit employees the terms
and conditions of employment that were applicable prior to April 1, 2005, and
continue them in effect until the parties either reach an agreement or a
good-faith impasse in bargaining, and make you whole for any losses suffered by
reason of the unlawful unilateral changes in terms and conditions of employment,
on and after April 1, 2005, plus interest.
We will at the Union’s request, restore the accommodated schedule
given to Sharon McLeod pursuant to which she worked the 7:00 a.m. to 3:00 p.m.
shift on Wednesdays and we will
make Sharon McLeod whole for any losses suffered by reason of the elimination of
her accommodated schedule, plus interest.
We will within 14 days from the date of the Board’s Order, remove
from our files any reference to the unlawful elimination of Sharon McLeod’s accommodated
schedule, and within 3 days thereafter notify her in writing that this has been
done and that such action will not be used against her in any way.
We will furnish to the Union in a timely manner the information
requested in the
We will 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 payments
due under the terms of this Order.