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,
Atrium at
Princeton, LLC d/b/a Pavilions at Forrestal and Princeton Healthcare, LLC d/b/a
Pavilions at Forrestal and SEIU 1199
New Jersey Health Care Union. Cases
22–CA–27066, 22–CA–27289, 22–CA–27315, and 22–CA–27601
December 5, 2008
By Chairman Schaumber and
Member Liebman
DECISION AND ORDERS
On
April 15, 2008, Administrative Law Judge Steven Davis 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 brief and
has decided to affirm the judge’s rulings, findings,2 and conclusions3 as modified below and to
adopt the recommended Order as modified and set forth in full below.4
1.
We agree with the judge that Respondent Atrium violated Section 8(a)(5) and (1)
of the Act by failing and refusing to bargain in good faith with the
“An
impasse does not destroy the collective-bargaining relationship. Instead, a genuine impasse merely suspends
the duty to bargain over the subject matter of the impasse until changes in
circumstances indicate that an agreement may be possible.”
By
the Respondents’ own admission, health benefits were a critical issue in the
negotiations for a successor agreement.
The Respondents have consistently maintained that the
On
December 1, 2005, the benefit fund terminated benefits for the Respondents’
employees, after sending several letters advising Respondent Princeton that it
was delinquent in its contributions and demanding payment. On about December 9, 2005, Respondent Atrium
took over the operations and management of the facility from Respondent
Princeton.5
On an unspecified date in January 2006, Respondent Atrium unlawfully implemented
a new health insurance plan without providing the
By
letter dated January 19, 2006, the
The
cancellation of the existing health insurance plan and the necessity of
obtaining alternate coverage changed the backdrop of negotiations and created
the possibility of productive bargaining.
Had Respondent Atrium provided the Union with notice and an opportunity
to bargain prior to implementing the new health insurance plan and/or provided
the requested information concerning plan benefits and costs, it may have led
to informed bargaining and an earlier offer by the
Because we agree with the judge that Respondent Atrium unlawfully
failed to
bargain in good faith for a successor agreement, we
find it unnecessary to pass on his further finding that Respondent Princeton
violated Section 8(a)(5) by the same or similar conduct. Respondent
2. In finding that Respondent Atrium violated Section
8(a)(5) by refusing to furnish requested information, the judge determined that
all of the information the Union requested in its letters of January 19, June
20, and July 17, 2006, including the unit employees’ social security numbers,
was presumptively relevant. While we
agree with the judge that the
3. The judge’s recommended Order effectively requires
Respondent Princeton and Respondent Atrium jointly and severally to remedy all
of the unfair labor practices found.
However, we discern no basis for imposing joint and several liability on
the Respondents.
The
General Counsel did not plead in his complaint that the Respondents are alter
egos or joint employers, or that Respondent Atrium is liable to remedy Respondent
Princeton’s unfair labor practices as a successor under
Accordingly,
we shall require the Respondents to remedy only the respective violations that
they committed. In order to clarify the
remedial obligations of the Respondents, we shall issue separate orders and
notices.
Amended Conclusions
of Law
1. The Respondents are employers engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2.
The
3. The following employees constitute a unit
appropriate for collective bargaining within the meaning of Section 9(b) of the
Act:
All
full-time and part-time certified nurses’ assistants, housekeeping employees,
dietary employees, laundry employees, staff licensed practical nurses, unit
clerks, unit secretaries, activities/recreations employees, maintenance
employees employed at the Pavilions, but excluding registered nurses, office
clerical employees, supervisors, watchmen and guards.
4.
At all times material the
5.
By bypassing the
6.
By engaging in delaying tactics, ignoring the Union’s requests to meet on
numerous dates, and unreasonably failing and refusing to meet and bargain for a
successor collective-bargaining agreement, Respondent Atrium failed and refused
to bargain in good faith with the Union as the exclusive collective-bargaining
representative of the unit employees in violation of Section 8(a)(5) and (1).
7.
By unilaterally changing the health insurance plan that covered the unit
employees’ health expenses without providing the Union with notice and an opportunity
to bargain, Respondent Atrium violated Section 8(a)(5) and (1).
8.
By unilaterally eliminating the Baylor Incentive Program without providing the
Union with notice and an opportunity to bargain, Respondent Atrium violated
Section 8(a)(5) and (1).
9.
By unilaterally changing the access rights of union representatives to its
facility without providing the Union with notice and an opportunity to bargain,
Respondent Atrium violated Section 8(a)(5) and (1).
10.
By failing and refusing to supply relevant and necessary information requested
by the Union in letters of January 19, June 20, and July 17, 2006, Respondent
Atrium violated Section 8(a)(5) and (1).
11. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Amended Remedy
Having
found that the Respondents have engaged in certain unfair labor practices, we
shall order them to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Having
found that Respondent Atrium violated Section 8(a)(5) and (1) of the Act by
failing and refusing to meet and bargain in good faith with the Union for a
successor collective-bargaining agreement, we shall order the Respondent to do
so on request, and, if an understanding is reached, to embody that understanding
in a signed agreement.
Having
found that Respondent Atrium violated Section 8(a)(5) and (1) by changing the
health insurance plan that covered the unit employees’ health expenses and by
eliminating the Baylor Incentive Program, we shall order Respondent Atrium, if
requested to do so by the Union, to rescind the unilateral changes and restore
the Baylor Incentive Program and the previously existing health insurance plan.7 To
the extent that the unlawful unilateral changes have improved the terms and
conditions of employment of unit employees, the Order set forth below shall not
be construed as requiring or authorizing Respondent Atrium to rescind such
improvements unless requested to do so by the Union. We shall further order Respondent Atrium to
make whole the unit employees and former unit employees for any loss of wages
or other benefits they suffered as a result of Respondent Atrium’s implementation
of new terms and conditions of employment in the manner prescribed in
Having
found that Respondent Atrium violated Section 8(a)(5) and (1) by changing the
access rights of union representatives to its facility, without giving the
Union notice and an opportunity to bargain, we shall order Respondent Atrium to
rescind the unilateral change.
In
addition, having found that Respondent Atrium violated Section 8(a)(5) and (1)
by failing and refusing to furnish the Union relevant and necessary information
requested in its letters of January 19, June 20, and July 17, 2006, we shall
order the Respondent to furnish the Union with the requested information,
excluding employees’ social security numbers.
Finally,
because it appears that Respondent Princeton has ceased operations at the
facility involved in these proceedings, we shall order Respondent Princeton to
duplicate and mail, at its own expense, a copy of the notice marked “Appendix
A” to all current and former employees employed by Respondent Princeton at that
facility at any time since August 24, 2005.
ORDERS
A. The National Labor
Relations Board orders that the Respondent, Princeton Healthcare LLC d/b/a Pavilions at Forrestal,
1.
Cease and desist from
(a)
Bypassing 1199 New Jersey Health Care Union and dealing directly with its
employees represented by the
(b)
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)
Within 14 days after service by the Region, mail a copy of the attached notice
marked “Appendix A”8 to all current and
former employees who were employed by Respondent Princeton at the Pavilions
facility at any time since August 24, 2005.
The notices shall be mailed to the last known address of each of the employees
after being signed by the authorized representative of Respondent
Princeton.
(b)
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, Atrium at Princeton, LLC d/b/a Pavilions at Forrestal,
1.
Cease and desist from
(a)
Failing and refusing to bargain in good faith with SEIU 1199 New Jersey Health
Care Union as the exclusive bargaining representative of the employees in the
appropriate unit by engaging in delaying tactics, ignoring the
All
full-time and part-time certified nurses’ assistants, housekeeping employees,
dietary employees, laundry employees, staff licensed practical nurses, unit
clerks, unit secretaries, activities/recreations employees, maintenance
employees employed at the Pavilions, but excluding registered nurses, office
clerical employees, supervisors, watchmen and guards.
(b)
Unilaterally changing terms and conditions of
employment or other mandatory subjects without providing the
(c)
Failing to provide the Union with requested information that is relevant and
necessary to the
2.
Take the following affirmative action necessary to effectuate the policies of
the Act.
(a)
On request, bargain with the
(b)
On the
(c) Make
whole the unit employees for any losses suffered by reason of the unlawful unilateral
changes in terms and conditions of employment, in the manner set forth in the
amended remedy section of this decision.
(d)
Rescind the unilateral change in the access rights of union representatives to
its facility.
(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 money 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.
Dated,
Peter C. Schaumber, Chairman
Wilma B. Liebman, Member
(seal) National Labor Relations Board
APPENDIX
A
Notice To Employees
Mailed 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 mail
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 bypass SEIU 1199, New Jersey
Health Care Union or any other labor organization and deal directly with our
represented employees with regard to wages, hours, or other terms and
conditions of employment.
We will not in any like or related
manner interfere with, restrain, or coerce you in the exercise of the rights
set forth above.
d/b/a Pavilions at Forrestal
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 fail and refuse to bargain
in good faith with SEIU 1199 New Jersey Health Care Union (the Union) as the
exclusive bargaining representative of the employees in the unit described
below by engaging in delaying tactics, ignoring the Union’s requests to meet on
numerous dates, and unreasonably failing and refusing to meet and bargain for a
successor collective-bargaining agreement.
The unit is:
All
full-time and part-time certified nurses’ assistants, housekeeping employees,
dietary employees, laundry employees, staff licensed practical nurses, unit
clerks, unit secretaries, activities/recreations employees, maintenance
employees employed at the Pavilions, but excluding registered nurses, office
clerical employees, supervisors, watchmen and guards.
We will not unilaterally change terms
and conditions of employment or other mandatory subjects, without providing the
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 you in the exercise of the rights
set forth above.
We will, on request, bargain with
the
We will, on the
We will rescind our unilateral
change in the access rights of union representatives to our facility.
We will make the unit employees
whole, with interest, for loss of earnings and benefits suffered as a result of
our unlawful unilateral changes in terms and conditions of employment.
We will provide to
the
Atrium at
Laura Elrashedy and
Bernard Mintz, Esqs.,
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 certain unfair
labor practices were committed by
It is further alleged that from about August 25, 2005 to
about December 9, 2005, Princeton failed and refused to bargain with the Union
over a successor collective-bargaining agreement by engaging in delaying
tactics, ignoring the Union’s requests to meet on numerous dates it had
proposed to bargain, and by unreasonably failing and refusing to meet on nearly
all of those dates. The Respondent admitted that Atrium became the successor to
It is also alleged that in about January, 2006, Atrium
changed the health insurance plan that covered unit employees’ health expenses,
and that on about March 1, 2006, Atrium eliminated the Baylor Incentive Program
which provided monetary incentives for licensed practical nurses who agreed to
regularly work on both Saturday and Sunday every weekend. It is alleged that
these changes are mandatory subjects of bargaining and that they were made
without notice to the
The complaint further alleges that since about July 20,
2006, Atrium changed the access right of Union representatives to its facility
by denying them such access rights. Finally, it is alleged that on January 19,
June 20 and July 17, 2006, the
The Respondent’s answer denied the material allegations of the complaint and asserted certain affirmative defenses which will be discussed below. 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
During the 12 months prior to the issuance of the complaint,
Princeton and Atrium has each derived gross revenues in excess of $100,000 from
its respective operations, and during that period of time each has purchased
and received at the Pavilions facility goods and materials valued in excess of
$5,000 directly from points outside New Jersey. The Respondent admits and I
find that Princeton and Atrium each is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and a health care institution
within the meaning of Section 2(14) of the Act. The Respondent also admits and
I find that the
ii. the alleged unfair labor practices
A. Background
The former owner of the Respondent was
The Respondent admits that on March 20, 2001, the
All full-time and part-time certified nurses assistants, housekeeping employees, dietary employees, laundry employees, staff licensed practical nurses, unit clerks, unit secretaries, activities/recreations employees, maintenance employees employed at the Pavilions, but excluding registered nurses, office clerical employees, supervisors, watchmen and guards.
The Union and the Respondent have been parties to collective-bargaining
agreements for a number of years, the
B. The Bargaining
1. The
Odette Machado, the Union’s former director of administrative
organizing whose duties were to supervise training of delegates, coordinate
organizers and lead contract negotiations, was privy to the
Machado testified that prior to the 2005 negotiations, she
met with Larry Alcoff, the
. . . in terms of what we needed to
settle a contract and we couldn’t deviate from it because . . . we had certain provisions in the [Tuchman or
master] contract, for example, the ‘most-favored-nations’ clause that we had to
be consistent with what it called for or else the consequence would be that
other employers who had a contract that was cheaper financially would be able
to call for the same thing if we reduced the standards.” Machado also stated
that Alcoff said that the
According to Machado, Alcoff told the Union agents that the David Jasinski-represented employers would be considered as one group and identified it as “the bad group” which “can’t help but be [an] evil employer” which is taking the Union to a “race to the bottom and if we cannot meet the standards [or] get the contracts then we would have to really come down very hard on them.” Machado also quoted Alcoff as telling the Union representatives that the strategy was to “go after the employers, go after their attorneys, go after the owners and . . . try to destroy them.”
Alcoff testified that the
Alcoff denied telling Machado not to deviate from state-wide standards. He stated, in fact, that the contract he negotiated with Meridian Nursing Home in 2005 contained no Benefit Fund provisions, and differed from the state-wide standards. Alcoff further stated that Machado negotiated a contract with Wellington Nursing Home which did not meet the standards for state-wide bargaining, and that she had the authority to negotiate and reach agreement on contracts that did not contain those standards.
2. The bargaining sessions
The chief spokesperson for the Respondent was its attorney
David Jasinski. He was accompanied by John Pilek, the Respondent’s
administrator and thereafter by a new administrator, George Mervine. The
All of the eight bargaining sessions were held at the Employer’s premises. The bargaining culminated in an assertion by the Respondent that impasse had been reached.
a. The bargaining session of February 24, 2005
Pimplaskar and Foley attended the first session. Pimplaskar
opened the negotiations by stating that the Union’s
The Union’s proposal, in material part, stated that effective May 1, 2005, the Respondent shall make contributions to the 1199/SEIU Greater New York Benefit Fund (Benefit Fund) at the rate of 21% of gross payroll “which rate may be adjusted by the Trustees as necessary to maintain the level of benefits currently provided or as improved by the Trustees during the life of the Agreement. However, in no event shall the rate be increased above 24% of gross payroll during the life of this Agreement.”
The proposal also demanded a 2½% of gross payroll contribution to the Pension Fund; a ½% contribution to the Training and Education Fund; and a ½% contribution to the Workers Alliance for Quality in Long Term Care.
According to Foley, Jasinski responded by saying that the Respondent was dissatisfied with the Union’s proposal in that its demands were “unrealistic” since it was asking for “more and more.” Jasinski contrasted the proposal with the expired contract which provided that the Respondent make payments for health insurance in the amount of $260 per month (about 13% of gross payroll not counting overtime pay) for all employees working 30 or more hours per week, and 2% to the Pension Fund. He termed the increases in contributions an increase from the prior contract and Foley agreed.
Jasinski testified that Pimplaskar’s opening statement included
her remarks that there were a number of provisions that were not negotiable,
including health and welfare benefits and pension contributions. Jasinski stated
that he responded by saying that the
In contrast, Pimplaskar testified that the Respondent’s
employees would ratify the proposed contract, and denied telling Jasinski that
the health and welfare and pension contribution proposals were not negotiable.
Indeed, she stated that all the
No agreement was reached on any term of the
At the session, Pimplaskar made an information request and thereafter, on March 10, the Respondent supplied certain cost reports.
b. The bargaining session held in March, 2005
The Respondent presented its proposal in which it agreed
to minor changes such as a revision in the contract’s cover and table of
contents, a change in the
Jasinski stated that following this session, Alcoff phoned
him, claiming that the
Alcoff denied having this conversation with Jasinski, and indeed denied speaking to Jasinski about the negotiations with the Respondent before he became the lead negotiator in August, 2005.
Justin Foley Becomes the Chief Union Negotiator
The collective-bargaining agreement expired on April 3, 2005. In early April, Foley was appointed the chief negotiator. Foley had acted as lead negotiator in the negotiation of two contracts which he bargained to conclusion. During the course of the bargaining here he consulted with Union president Milly Silva and Alcoff, who described Foley as “inexperienced.”
On April 1, Jasinski wrote to Foley requesting certain information
and asking for a full economic proposal from the
c. The bargaining session of June 8, 2005
The Respondent and the
Between June 8 and the next session, Foley was notified by the Benefit Fund that the Respondent was delinquent in its payments to the Fund.
A flyer was circulated by the
d. The bargaining session of July 7, 2005
The parties discussed the
In material part, the
The
In connection with the Benefit Fund, Foley advised that Tony Petrella, a Benefit Fund employee, told him that the Employer was not contributing to the Benefit Fund and as a result, employees’ health insurance was in “jeopardy.” Jasinski denied that assertion.
The Respondent’s proposal included a wage increase of 3% effective September 1, 2005; 2% effective September 1, 2006; and a 2% raise effective September 1, 2007. The Employer also proposed a merit pay clause, and a “no frills” rate of $11.50 for unlicensed personnel and $23 for licensed practical nurses. The Employer offered to pay 16% of gross payroll to the Benefit Fund for the life of the agreement which, according to Jasinski, was about the same as its current payment of $260 per month. The Respondent also proposed giving a $100 “stipend” to those employees who chose not to be covered by the Benefit Fund.
Foley testified that he believed that Jasinski knew that his 16% offer would be unacceptable to the Benefit Fund’s trustees because it set the minimum contribution rate for participation in the Benefit Fund, and he also believed that in making that offer Jasinski sought to cease the Respondent’s participation in the Benefit Fund.
The bargaining consisted of a discussion concerning the
non-economic matters previously addressed at the June 8 meeting. The only
agreement reached concerning those issues was the Respondent’s acceptance of
three of four clauses in the
Jasinski testified that he was shocked at the Union’s increased
demands and told Foley that it did not appear that the
That most-favored-nations clause was in effect at that time since the
Tuchman agreement had been executed in June. The clause states in material part
as follows:
Article 35 – Most-Favored-Nations
35.1. The
35.2. In the event the Union enters into any collective bargaining agreement … on or after April 1, 2005 with a proprietary nursing home in New Jersey which provides for more favorable economic terms and conditions to the employer than those contained herein, such more favorable terms and conditions shall automatically be applicable to the Employers, except that this provision shall not apply … [listed are exceptions not applicable to the Respondent].
35.3. This provision will apply only to the net economic impact reflected by the modifications provided for in this Agreement.
On July 15, the day Foley left his employment with the
Jasinski testified that he believed that Foley’s mention
of the
e. The bargaining session of August 12, 2005
Larry Alcoff became the
Prior to commencing bargaining, the Union, including president
Silva, Alcoff, organizers Norman DeGeneste and Henry Rose met with an employee
committee consisting of about 20 workers. This meeting took about one hour. It
was a contentious session with Alcoff explaining that the Respondent had not
been paying its contributions to the Benefit Fund for nearly one year and was
$350,000 in arrears, and that if no payments were made their benefits would be
canceled by the Fund.3 The
employees responded that the Employer told them that the
The employees also claimed to be owed a wage raise due to a wage reopener in 2004 that was the subject of a pending unfair labor practice proceeding.4 The employees believed that they were entitled to a 4% wage increase pursuant to the reopener. The Respondent argues and I agree that there is no evidence as to the amount of any wage increase due pursuant to the reopener.
The employees voted to present a “package proposal” to the
Respondent in which the
The proposal also provided for a shift differential of 50
cents per hour for the second shift and 80 cents per hour for the night shift.
The
Joanne Plummer, a former employee of the Respondent who
left her job in 2004 but nevertheless attended most bargaining sessions in 2005
as a current Union member, testified about this session. She stated that the
employees and Union committee members insisted that they were due a 4% raise
pursuant to the contract reopener in the prior contract, and they understood
that the raise would be given prior to the effective date of the new contract.
Plummer stated that Alcoff and Silva sought to forego the 4% raise and just ask
for 3%. In fact, as testified by Alcoff, the
Plummer first testified that Alcoff explained that he took
the 4% raise “off the table” because the Union wanted all its contracts to be
the same—to follow the same “format”—all of the contracts were supposed to have
the same provisions and end at the same time so that they could be renegotiated
together. She then stated that as part of the 3% proposal, the
In this respect, the proposal did not increase the wage rate of the certified nurses aides (CNA), the licensed practical nurses (LPN), or maintenance/unit clerks for the life of the three year contract because the rates those employees were then receiving were “competitive.” The only rates that were raised over the life of the contract was the Grade 1 housekeeping/dietary/laundry workers where they were raised, in the first year, from their current wage of $8.25 to 8.73.
The Union’s proposal also provided that the Respondent make contributions to the Benefit Fund at the rate of 22.33% of gross payroll, but if the trustees, in their discretion, determine that contributions in excess of 22.33% are needed, the parties can meet to propose plan revisions to keep the rates at 22.33% or modify other parts of the economic costs of the contract so that the full percentage required by the Trustees is maintained. If the parties cannot agree on plan revisions to maintain the rate at 22.33%, the dispute shall be submitted to arbitration with Martin Scheinman, but “in no event shall the contribution requirement of the Employer exceed 22.33% of gross payroll … except by mutual agreement.” The contract further provides that if the trustees determine that the Benefit Fund will no longer cover the employees, the parties “shall promptly meet to negotiate acceptable replacement coverage.”
The
Jasinski testified that he told Alcoff that the
Jasinski also quoted Alcoff as saying during the negotiations
that he could not deviate from the terms of the Tuchman master agreement
because the most-favored-nations clause in that contract prohibited the
Alcoff stated, moreover, that nursing homes such as Canterbury, Buckingham and Windsor Gardens,5 which had contracts with the Union, and other nursing homes whose contracts were negotiated in 2005, such as Southern Ocean Nursing Home, Voorhees Nursing Home, Marcella Nursing Home, Meridian Nursing Center, Westfield Nursing Center, and Wellington Hall were not covered by the Benefit Fund.
Jasinski also testified that at each bargaining session, including this one, he (Jasinski) requested that a mediator be engaged to help the parties reach agreement. Alcoff responded that a mediator was not necessary, and that he did not like and did not want a mediator, and refused the assistance of a mediator. Jasinski conceded that he did not make reference in any of the numerous letters he wrote about Alcoff’s alleged bad faith bargaining to the fact that he refused to have a mediator present. Alcoff testified that he did not believe that Jasinski requested that a mediator be present at negotiations. He stated that he may have told Jasinski that he was occasionally not impressed with the roles mediators play but he denied saying that the objected to a mediator’s presence, particularly since he requested a mediator, in writing, on several occasions during the bargaining.
Alcoff stated that at this session the
f. The bargaining session of August 17, 2005
This session consumed about two hours. Prior to meeting
with the Respondent, Alcoff and Silva met with the employee committee, more
than 10 of whom no longer agreed with the
At the session, the
A side issue was raised whereby Alcoff claimed that the Respondent was required to make contributions to the Benefit Fund for any employee working three months or more. Jasinski argued that the Fund covers employees working more than six months pursuant to a signed memorandum of agreement. This issue was not resolved.
Jasinski proposed a wage increase of 3% to be effective
August 1.6 The Union rejected that
offer and instead wanted a response from the Employer on the
g. Events in mid-August
On August 19, the
Administrator Pilek sent a letter to employees and family
members of the residents dated August 24 which stated that the Employer had
received a notice from the
The letter came as a surprise to Alcoff since the only Employer
offer on the table at that time was a 7% increase over three years (raises of
3%, 2%, and 2%). In addition, the
h. The bargaining session of August 25, 2005
Alcoff asked Jasinski if he was aware of Pilek’s August 24
letter. Jasinski replied that he was, and Alcoff said that he had never
received such a proposal. Jasinski said “you will” and then orally offered a
12% wage raise over four years. Jasinski then rejected the
Alcoff then presented a written offer which modified the
Alcoff conceded that this proposal was more costly to the
Employer than the
Alcoff met with the employee committee and then asked Jasinski to return, telling him that although the Union’s package was rejected the Union wanted to move the bargaining forward and accordingly orally modified its current proposal, as follows: Seven holidays, with time and one-half only for Christmas Day, New Years Day and Thanksgiving Day; the vacation days offer was modified; the sick day proposal was modified by moving it to the third year of the contract; contributions to the Training and Education Fund and to Alliance would be postponed for five months, until January 1, 2006; contributions to the Pension Fund would be reduced from 2% (27 cents per hour) to 15 cents per hour; the overtime provision was withdrawn.
Jasinski testified that during his caucus he and Pilek decided
to present their last offer. He told Alcoff that the following was his “final,
last and best offer.” Jasinski agreed to a three year contract and stated that
he “adopted” the Union’s wage proposal previously made at the August 12 session
of 3%, 2.5%, 2%, 2.5%, and 2% to be in effect on the dates proposed by the Union
at that session, and also offered a merit pay base increase which the Employer
previously made at the July 7 session. The Respondent agreed to contribute 16%
of payroll to the Benefit Fund, but did not agree to the parity raises demanded
by the
Jasinski stated that after making this final offer, Alcoff
made no counter-offer and the meeting ended with no dates for a new meeting
set. With the Union’s job action set for August 30, Jasinski testified that
Alcoff used the strike threat as a “club” and told him several times during
this session that the
Former employee Plummer testified that when she protested
to Alcoff about the absence of the 4% raise in the
Employee Jeanette Dieujuste testified that when Jasinski offered a raise of 3%, Alcoff attempted to have the 2004 4% raise added to that offer. At that time, Jasinski became “upset” because Alcoff had withdrawn his demand for the 4% raise and now wanted to put it back. Jasinski said that he had just made his “final offer.”
Plummer further stated that later on in that session or in
the next bargaining meeting, the
i. Events from August to November
The employees and the
The August 30 letter to Jasinski set forth the
·
Article 8 – Grievance-Arbitration: Reduce the
number of days to file a grievance to 14. The expired contract required that a
grievance be filed within 10 days. The
·
Wages – Modify the
·
Shift Differential –
· Health Insurance – No change in current Union proposal – 22.33%.
·
Holidays – Modify
· Vacation – Union modifies proposal by withdrawing vacation improvements for any employee with less than 10 years of service; effective 1/1/08, add 4 weeks of vacation after 10 years of service.
·
Sick Leave –
· Training and Alliance Funds – modifies the proposal by moving effective date from 8/1/05 to 1/1/06.
·
Overtime –
·
Pension Fund –
·
Alcoff’s letter asked Jasinski to contact the
On September 6, John Pilek, the Respondent’s administrator made a payment to the Benefit fund in the amount of $240,100 for the period December 1, 2003 to June 30, 2005.
A petition dated September 7 containing 30 employee signatures
stated that the signatories no longer wanted to be represented by the Union and
were voting the
On September 30, Alcoff sent a letter to Jasinski stating
that the
At hearing, Jasinski testified that he heard that Alcoff told Pilek that he (Jasinski) was the “problem” in achieving a contract. According to Jasinski, Alcoff told Pilek, who did not testify, that he did not want to negotiate with Jasinski and that if the Employer removed Jasinski a contract could be reached.
In response, on October 4, Jasinski wrote to Alcoff accusing
him of contacting the facility and its representatives “in an attempt to
negotiate this contract” and telling Pilek that he did not want to negotiate
with Jasinski. The letter noted that such conduct constitutes an unfair labor
practice and demonstrates the union’s bad faith bargaining and intent not to
reach an agreement. The letter also stated that Alcoff “continued to force upon
the employer an industry-wide contract which was agreed to by other employers”
and has made no “substantive changes to address the needs of this facility and
its employees.” The letter further stated that after the Respondent rejected
the
Alcoff replied by letter of October 10 stating that the
Alcoff testified that he called Jasinski’s office which informed him that Jasinski was not available on those dates. A bargaining session was scheduled for November 3. Jasinski cancelled that session because his office said that he was not available, but according to Alcoff, Jasinski actually bargained with him that day at another facility. Accordingly, Jasinski was available to bargain that day, but not for the Respondent.
Thereafter, Alcoff wrote a flyer stating that the
On November 14, Alcoff wrote to Jasinski stating that in addition to his letters of August 30, September 30 and October 10, he spoke to Concetta from Jasinski’s office many times requesting negotiations, adding that Jasinski had not provided any dates for bargaining although Jasinski had offered November 3 but then Jasinski canceled that session. Alcoff wrote that the Union was available on November 21-23, 28 and 29, December 1-2, 6-8, 9, and 13-16, and that he had given the New Jersey Board of Mediation more than 20 possible dates that he is available through late December.
Jasinski replied on November 16, agreeing to meet on November 29 and December 2. On November 21, Alcoff responded, agreeing to meet on both dates.
On November 23, Alcoff wrote to Jasinski stating that administrator Pilek informed Union agent DeGeneste that there had been or will be a change in either the ownership or operators of the Respondent. Alcoff asked for information concerning the alleged change. No information was provided.
j. The bargaining session of November 29, 2005
The parties met on November 29 for about 1½ hours. Prior to the bargaining, Alcoff became aware of a memo distributed to employees which stated that “due to the change of ownership, direct [deposit] will be suspended for the pay date of December 2…. This will be your last paycheck issued by the current owner.” Alcoff asked Jasinski about the memo and Jasinski replied that it was an error – that there had been no change in payroll or direct deposit. Jasinski further told him that he had no knowledge of any change in ownership of the Respondent.
Alcoff testified that he was reluctant to present a new proposal
until he obtained clarification concerning whether there was a new owner or
operator, and whether it intended to change the workers’ terms and conditions
of employment. Alcoff asked Jasinski about the new owners. Jasinski replied
that Hospicomm is his client and he was prepared to bargain for Hospicomm.
Jasinski asked if the
Jasinski testified that Alcoff did not respond to his proposal made on August 25, rather he was only concerned with the “rumor” that the Respondent was being sold and wanted assurances that Jasinski was authorized to represent the Employer. Jasinski denied that Alcoff asked that the expired contract be extended.
Following the meeting, Alcoff wrote to Jasinski asking for the identities of the current owners, the buyer, whether Jasinski had the authority to bargain on behalf of the current owners or buyer, the contemplated changes in terms and conditions of employment, and also asked for an assurance that any agreement reached prior to the sale would continue in full force after the sale. Alcoff asked Jasinski to present the answers to these questions at the December 2 session.
On November 30, Jasinski replied, stating that he had presented
the Employer’s “final offer several months earlier.” He accused Alcoff of
engaging in “reckless bargaining by increasing the previous proposal never
intending to reach a contract” while at the same time the Respondent made proposals
which included wage raises, health benefits, and paid time off. Jasinski stated
that he was authorized to represent the Employer, and called the
Alcoff testified that Jasinski’s use of the term “final
offer” in the letter of November 30 was his first use of that term. He had not
previously called the Respondent’s proposal of August 25 a “final offer.”
Alcoff termed the bargaining “complicated” because of the employees’ “high
expectations” and demands which included the 2004 make-whole wage raise, and
the issue of unpaid health insurance contributions, but he denied that the
Union did not seek a contract. He stated that the
Apparently also complicating the bargaining was a hostile,
divisive campaign for Union president which was going on at this time. Alcoff
testified that shortly after the November 29 session, Odette Machado, an area
director of the
Alcoff described a scene of “hostility” toward him and
Silva with accusations that they conspired with the Respondent or among
themselves in stealing money from the
k. The events in December and January
On December 22, Jasinski wrote to Machado, an official of
the Union, that at the last bargaining session the Union refused to respond to
the Employer’s last offer and has continued to insist that it agree to a
collective-bargaining agreement “dictated by the
On December 28, Alcoff wrote to Jasinski, offering to meet on January 4, 18, 19, 20, and the week of January 23, 2006. Alcoff stated that he did not believe that Jasinski agreed to meet on any of those dates.
A petition dated January 2, 2006, was prepared by employee Jeanette Dieujuste who supported Machado in the Union election for president. The petition, which bears the signatures of 72 employees, asked that Alcoff and Silva not represent them at any future negotiations. The petition also stated that on November 30 and December 2, Alcoff misled the employees into meeting for the ostensible purpose of discussing the contract but instead discussed Silva’s candidacy for Union president.
Sometime prior to January 19, 2006, Alcoff asked administrator George Mervine, who replaced Pilek in January, 2006, whether Jasinski was still the chief negotiator. Mervine said that he was and that he represents the successor employer.
3. The union requests bargaining dates and information
a. The January request
On January 19, 2006, Alcoff wrote to Jasinski offering to meet on any and all dates in February, beginning on February 4. Alcoff stated that none of the dates were accepted by Jasinski.
The letter also advised Jasinski that the Union was told
by the employees that a new health insurance plan was implemented without
notice to the
On January 23 and 26, Jasinski wrote to Alcoff, asking him
to supply an arbitration award issued concerning the Benefit Fund, and for a
copy of the collective-bargaining agreement between Genesis Healthcare and the
Alcoff denied that any Union representative made such
statements. However, Alcoff also stated that the Tuchman master agreement
covering 20 nursing homes and 2,000 employees contains standard language
concerning union security, grievance and arbitration, etc., but for each
facility it contains a “localized agreement” covering wages, vacations,
holidays, sick days, personal days, health insurance eligibility, etc. He noted
that all the signatories are party to the Benefit Fund and all contribute at
the same rate but there are certain variations regarding eligibility for the
Fund. Alcoff further noted that one of the Tuchman facilities does not
participate in the Benefit Fund. He further noted that he took language from
the Tuchman contract and used it in his proposals with the Respondent. He conceded
that the schedule of wage raises in the
Alcoff testified that certain contracts negotiated in 2005 and 2006 did not provide for contributions to the Benefit Fund, including seven nursing homes owned by Genesis Health Care.7 Further, one nursing home, New Vista, which was included in the Tuchman contract, is not a contributory to the Benefit Fund.
A petition dated January 30, 2006 prepared by employee
Dieujuste and signed by five “committee members” was handed to Mervine, and
sent to the
On February 17, 2006, Jasinski wrote to Alcoff reminding him that about one month earlier he had requested an arbitration award and the “Genesis” collective-bargaining agreement and that neither had been provided. Jasinski also wrote that he had become aware of the petitions signed by employees regarding Alcoff and Silva and wanted an assurance that Alcoff represented the employees and was authorized to negotiate a contract. Jasinski asked for written authorization from a majority of the Employer’s employees that they wanted Alcoff to represent them in negotiations.
b. Later requests for information and bargaining dates
On March 8, 2006, Alcoff wrote Jasinski that “you have provided no information that we have requested … on a repeated basis nor have you found the time to schedule bargaining at Pavilion….”
On April 11, Jasinski wrote for more information concerning
the arbitration award and the Genesis contract that Alcoff had previously sent
to him. He requested other contracts and certain financial information
concerning the Benefit Fund. Jasinski further wrote that the Respondent
received an employee petition stating that they did not want Alcoff to represent
them in bargaining, demanding that a Union attorney represent them at
negotiations, and asking that no negotiations be scheduled until a Union
attorney was assigned to negotiate. Jasinski asked for evidence demonstrating
that Alcoff had been designated as the employees’ representative as no reply
had been made to his February 17 letter asking for the same assurance. Jasinski
concluded by asking to meet with the
On May 10, Jasinski wrote, again asking for confirmation
that Alcoff represented the employees and stating that he had no objection to
meeting with Alcoff or any other representative designated by the
Alcoff stated that he was aware of the employee petitions and attributed them to the internal Union political campaign then ongoing. On May 15, Alcoff replied to Jasinski’s April 11 and May 10 letters, stating that he was not certain why Jasinski sought information about the Benefit Fund since it was the Respondent’s position that it would not participate in the Fund unless it could do so at a rate of no more than 16% which “falls far short of the 22.33% rate the Fund requires.” In addition, Alcoff supplied the answers, as best he knew, to the questions posed by Jasinski, adding that no other facility adopted the terms of the Genesis contract.
Alcoff concluded by saying that he was appointed by president Silva to negotiate the contract, and was available to meet on all days between June 5 and 15. He added that Jasinski’s “continued failure to schedule bargaining dates constitutes bad faith bargaining.”
On May 20, Jasinski replied, saying that Alcoff’s responses to his information requests were incomplete. He agreed to meet with Alcoff on June 12. Alcoff accepted that date and reminded Jasinski that he had “ignored all information requests regarding the health insurance benefits, other unilateral changes and updated employee information and asked that he be given that data by June 9.
Alcoff canceled the June 12 session—the first time the
On June 12, Jasinski wrote to the Board’s Regional Office
asserting that Alcoff and the
On June 20, Alcoff wrote to Jasinski that he was available to bargain on all dates from July 10 through the end of July. Alcoff testified that none of those dates were accepted by Jasinski. The letter asked essentially for an updated list of all unit employees by job classification, including their name, address, social security number, job title, date of hire, wage rate, shift, etc., since January 1, 2006; copies of correspondence to employees since December 1, 2005 regarding terms and conditions of employment; copies of personnel policies or the employee handbook that was changed since December 1, 2005; summary plan descriptions of insurance plans offered to employees; cost to the employer and the employees of insurance plans; gross bargaining unit payroll from January 1, 2006 through May 31, 2006; and a summary of the policies and benefits offered to the “Baylor Nurses.”
Alcoff testified that this was the first time he requested
copies of correspondence and copies of personnel policies, handbook and
payroll, and he sought the information for the periods set forth because the
new owner purchased the facility in November, 2005. His further reasons for
seeking the data were that he heard from employees that there were changes in
their terms and conditions of employment including their dates of hire and
their accruals of paid time off. Alcoff asked for a reply before July 1, and a
response to all the
On July 10, Jasinski wrote to Alcoff stating that it had responded
to the
On July 17, Alcoff wrote Jasinski that the
On October 23, Jasinski wrote to Alcoff stating that the
Respondent presented its “last best offer” to the
On November 13, 2006, Alcoff wrote, denying that Jasinski
made a last, best offer on November 29, 2005. He stated that at that meeting
one year earlier, the Respondent did not present a comprehensive proposal, but
they discussed the open issues and said that the
Jasinski testified, denying Alcoff’s version of the November 29 session. Specifically, Jasinski denied that open issues were discussed at that time, and also denied that Alcoff announced that he would make a counteroffer at the December 2 meeting. Jasinski stated that the only topic of discussion on November 29 was Alcoff’s questions concerning the sale of the facility.
According to Alcoff, Jasinski did not agree to meet during the two weeks proposed by Alcoff, and no information was provided. Indeed, there was no evidence that Jasinski replied to Alcoff’s letter of November 13.
Jasinski wrote to Alcoff on December 27, noting that at
the last session one year earlier he presented a “final offer” while the Union
did not present any counter offers. He accused the Union of stalling and
delaying negotiations with no intention to reach agreement unless it was the
“standard contact established by the
Alcoff replied to Jasinski’s letter on January 9,
explaining that he just returned from vacation. He denied that the Respondent
submitted a final offer at the last session in November, 2005 and asked that
such an offer be provided in writing to him. Alcoff again requested the
information set forth in his letter of June 20, noting that “you continue to
ignore all information requests made by the
On January 17, Jasinski replied, insisting that a final
offer was presented to Alcoff, and again asserting that the
Alcoff replied on January 19, denying that the
Alcoff also denied that a work stoppage took place. Alcoff asked for a written copy of the Employer’s alleged final offer, denying that one was made. He testified that he did not receive such a copy.
Jasinski testified that he “believed” that he sent the copy of the final offer to Alcoff, perhaps sometime after January 19, 2007, but did not know when. No copy of the final offer or a letter transmitting it was offered in evidence.
C. The Alleged Unilateral Changes
1. The health insurance plan
The Benefit Fund terminated benefits for the Respondent’s employees on December 1, 2005 because of a failure by the Employer to make contributions to the Fund. On December 22, Benefit Fund director Timothy Wells sent a letter to the Respondent and the Union stating that if the parties reach agreement on a new collective-bargaining agreement providing for participation in the Benefit fund effective December 1, 2005, and if the Employer presents reports of earnings for December, 2005, eligibility for health and welfare benefits through the Benefit Fund would be effective retroactively to December 1, 2005.
On January 5, 2006, Machado sent an e-mail to Alcoff and Silva, notifying them that on December 22, Respondent administrator Mervine told her that employees’ health benefits were terminated by the Benefit Fund, and that the Union had not contacted the “new management” to discuss wages, working conditions and benefits for the employees, but nevertheless the Employer wanted to ensure that the workers had health benefits. Machado called Fund administrator Wells who confirmed that benefits were terminated, but told her that if the Employer contributed to the Fund effective December 1, 2005, benefits would be reinstated. Machado called Silva and Alcoff to advise them of these facts but her calls were not returned.
Alcoff did not reply to Machado, but asked Mervine, in
mid-January, about rumors he heard from employees of a new health plan. Alcoff
testified that Mervine told him that the Respondent offered the workers the
Health Net benefits plan. Alcoff told him that they had to bargain concerning
that and that he was anxious to reach agreement. Mervine told him to speak
directly to Jasinski. Alcoff further testified that no one from the Respondent
notified him or the Union of the change prior to its implementation, and the
Employer did not offered to bargain with the
The Respondent faults the
2. The Baylor incentive program
The Baylor Incentive Program (BIP) is a vehicle used to
provide an incentive for licensed practical nurses to work on the usually
difficult to staff weekend shifts. Eight licensed practical nurses participate,
constituting at least half the LPN work force.11
They work virtually every weekend in 12 or 16 hour shifts over two days, for
which the nurse receives full-time pay and full-time benefits. They typically
work 32 hours per week and are paid for 40 hours. Jasinski testified that the
program was discussed and agreed to by the Respondent and the
According to Jasinski, at the August 12, 2005 bargaining session, Alcoff objected to the fact that the Baylor nurses were receiving higher rates of pay than other LPNs, noting that the program and their rates were not provided for in the contract. Jasinski allegedly replied that if Alcoff did not want the BIP, the Respondent would eliminate it, but Alcoff objected to its termination. Alcoff denied that that exchange took place.
On February 8, 2006, the Respondent’s Director of Nursing
sent a note addressed to “Baylor nurses” which stated that effective March 1 it
would no longer be able to offer the BIP. The letter asked the workers to speak
to the staffing coordinator to discuss other options available to them. Alcoff
gave uncontradicted testimony that the Union was not notified that the BIP
would be eliminated and no offer was made by the Respondent to bargain with the
Apparently in response to being informed of that letter,
on February 16, Alcoff wrote to administrator Mervine requesting bargaining
concerning the Respondent’s “proposal to eliminate” the BIP, reminding him that
the Employer could not implement a new policy until bargaining has taken place.
Alcoff’s reference to the Respondent’s “proposal” was not to any actual
proposal the Employer made to the
At hearing, it was stipulated that the Respondent eliminated the BIP on or about March 1, 2006. However, the Respondent disputes whether the Baylor nurses were part of the unit. In addition, Jasinski testified that the BIP was not working – there were too few nurses in the program to fill the schedules.
The BIP is not specifically referred to in the expired collective-bargaining agreement, but, according to Alcoff, it was the practice of the Respondent to have such an arrangement for certain nurses before and during their current negotiations. Alcoff stated that the Respondent never proposed during negotiations that the BIP be eliminated. However, according to Alcoff, if the Baylor nurses were late to work they lost some of their premium pay for that shift. Alcoff complained, in negotiations, about that forfeiture.
3. Access by union agents to the facility
The expired collective-bargaining agreement provides in relevant part:
Article 5—Visitation
A. Upon entering the facility, the Union Organizer or the
D. The Union shall be permitted to conduct Union meetings
on the Employer’s premises provided such meeting is conducted in Non-patient
area and attended by employees during non-work time. The
Alcoff testified that when he visited the Respondent’s premises to attend the four bargaining sessions from August 12 through November 29, 2005, he did not call in advance.
He also visited the premises an additional eight times during that period of time. He stated that when he entered the facility he announced himself at the reception desk and proceeded to the break room where he spoke to the workers. He testified that no advance permission or notification was required and he did not give such notice.
Alcoff stated that in about February, 2006, after Atrium purchased the facility, he entered the building and was stopped by administrator Mervine who told him that the employees did not want him in the building. Alcoff asked to speak to them anyway. Mervine agreed and Alcoff met for one hour with the workers.
Alcoff further stated that about one week before July 20,
2006, flyers were distributed to the workers and were posted in the facility
announcing a Union meeting in the break room on July 20. The agenda included a
review of the pending charges and complaint, and the
Alcoff testified that in early August, 2006, he and Marvin Hamilton, a Union representative were passing by the premises and decided to try to speak to any employees who might be in the break room. Alcoff did not have a meeting with employees scheduled that day. They entered the building, announced themselves at the front desk and went to the break room. Nursing Director Hicks entered and told Alcoff that he did not have permission to be there, was not permitted on the premises and that she would call the police. Alcoff left.
i. general principles
It is a violation of Section 8(a)(5) of the Act for an employer to refuse to bargain collectively with the representatives of its employees. Section 8(d) defines the obligation to bargain collectively as the “mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment.”
The Board has long held that “when, as here, parties are engaged in negotiations [for a collective-bargaining agreement], an employer’s obligation to refrain from unilateral changes extends beyond the mere duty to give notice and an opportunity to bargain; it encompasses a duty to refrain from implementation at all, unless and until an overall impasse has been reached on bargaining for the agreement as a whole.” NLRB v. Katz, 369 U.S. 736 (1962); 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 Board has recognized two limited exceptions to this overall impasse rule: “when a union, in response to an employer’s diligent and earnest efforts to engage in bargaining, insists on continually avoiding or delaying bargaining, and when economic exigencies compel prompt action.” Bottom Line, above.
The Respondent argues that an impasse in bargaining was reached.
ii. was impasse 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.
It is important to note that both lead cases, Taft and Hi-Way Billboards, use the term “good faith” in defining the attitude which parties must bring to the bargaining table. As set forth below, and in considering all the facts in this case, I must conclude that the Respondent did not approach the bargaining in good faith and thus did not meet that threshold requirement.
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.
A. The Factors
1. Bargaining History and the Length of the Negotiations
Regarding bargaining history, the Employer’s predecessor
Princeton and the
Regarding the length of negotiations, although eight bargaining
sessions were held, no bargaining of substance occurred and no agreements on
any material terms were reached at the first three meetings, except that the
Respondent agreed to certain minor changes in the language contained in the
Union’s proposed contract, such as a change in the Union’s address. The parties
presented their full economic proposals at the fourth meeting on July 7 at
which the Union withdrew its demand for contributions to the Legal Fund and the
Respondent agreed to certain of the
2. Good faith
The parties’ good faith in negotiations has been subject
to question on both sides. The complaint alleges that the Respondent’s bargaining
has not been in good faith, and the Respondent questions the
Machado, a former official of the
Alcoff denied Machado’s testimony and credibly testified,
without contradiction, that six other nursing homes whose contracts were
negotiated in 2005, were not covered by the Benefit Fund. In this respect I
cannot credit Jasinski who testified that Alcoff stated during the negotiations
that he could not deviate from the terms of the Tuchman contract because the
most-favored-nations clause in that contract prohibited the
Further, Machado’s testimony that Alcoff said that if the
However, even if Machado’s testimony is credited, the
Accordingly, even though the
New circumstances, including the fact that there was a new
employer, Atrium, in the picture, may have been sufficient to create some
movement in the
Regarding wages, the
The Tuchman agreement provided for a total of 12% raises
in wages over the three year term of the contract, with a 3% raise in the first
year. The
The Respondent further asserts that the
It points to the three employee petitions dated September
7, 2005 in which 30 employees stated that they no longer wanted to be
represented by the Union and were voting the
These claims have no merit, and they are no defense to the
Employer’s refusal to bargain. The fact that employee petitions were circulated
in which they sought to remove Alcoff as the chief bargaining representative is
irrelevant to the issue of the
3. The importance of the issue preventing agreement
Regarding the most important term of the proposed agreement
and the term which represented the most controversy, the Benefit Fund, the
The
The Act does not require a union to agree to an employer
demand, or that it modify its offers in any certain way. All that is required
is a good faith effort to reach agreement. The evidence demonstrates that 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). However, if impasse occurred, it was broken when Alcoff offered to present another proposal at the December 2 session. That session did not take place because Jasinski believed that it would not be productive.
In this regard, when considering the issue of good faith,
it must be emphasized that the Union’s efforts to arrange bargaining sessions
after the final November 29 session were fruitless as the Respondent unlawfully
engaged in delaying tactics and failed to meet on any of the numerous dates offered
by the
The Respondent’s other violations of the Act, as set forth herein, most notably refusing to furnish information which may have been helpful in the Union’s preparing further offers, bypassing the Union and dealing directly with its employees, changing its health insurance plan without bargaining, and terminating the BIP and changing the access rights of the Union, illustrates that it was the Respondent’s lack of good faith, rather than the Union’s, that resulted in a lack of meaningful bargaining which precluded a finding that impasse was reached.
4. The parties’ understanding as to the state of negotiations
Regarding the Respondent’s claim that it made a “final offer”
at the August 25 session, I cannot credit the testimony of Jasinski or employees
Plummer and Dieujuste that Jasinski made that statement. Dieujuste supported
Machado in the Union election for president against incumbent president Silva,
was a member of her campaign committee, prepared two employee petitions which
sought to have Alcoff removed as negotiator, filed a charge against the Union
alleging that it violated its duty of fair representation, and signed a Board
petition in which a rival union, for which she is a delegate, sought to represent
the employees of the Employer. Further, she denied receiving the dismissal
letter of the charge she filed, and unconvincingly denied receiving any
information concerning the charge after she filed it. Accordingly, Dieujuste’s
testimony may have been affected by her alliance with a rival union and
connection with Machado in opposition to the
A further reason exists for rejecting Jasinksi’s claim
that he announced that he made a final offer. On August 30, Alcoff sent a
letter modifying the
Indeed, on November 30, Jasinski offered to meet with 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.2nd 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 employer’s declaration of impasse, there had been
movement on important issues and the union had demonstrated flexibility. Here,
the Union made a written modification of its offer on August 30, and offered to
present another proposal at the December 2 session, and in view of the parties’
agreement, on November 29 and thereafter 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), and Richmond Electrical Services, 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.2nd 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 offer to make a new proposal on December 2, his offer to consider a different health plan, and his offers to meet thereafter certainly created a “new possibility of fruitful discussion.”
In finding that no impasse occurred, the Board in Newcor Bay City Division, above, at 1240, observed that when the employer 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, slip op. at 5. 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, slip op. at 10–11. Similarly, the evidence here shows that the Union officials were not at the end of their negotiating rope, but were ready and willing to negotiate further.
In Serramonte
Oldsmobile, 318 NLRB 80, 98 (1995), as here, although at the final
bargaining session “all the elements of a genuine impasse in bargaining were in
place” here, Alcoff’s offer to present a new proposal on December 2 represented
“serious movement—a substantial effort” to bridge the gap in positions. Thus,
Alcoff’s statement signaled that movement was possible. That does not mean 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, and sought another bargaining session. “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.’”
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.
The mere fact that the
It thus cannot fairly be said that by the end of the November 29 session or thereafter, the parties had exhausted all possibilities of reaching agreement. Accordingly, the Respondent’s declaration of impasse and unilateral changes in its employees’ terms and conditions of employment were premature and violated Section 8(a)(5) and (1) of the Act.
In addition to the above, “a legally recognized impass
cannot exist where the employer has failed to satisfy its statutory obligation
to provide information needed by the bargaining agent to engage in meaningful
negotiations.”
If information had been forthcoming regarding that plan, informed
bargaining may have taken place concerning it and it is possible that the
I accordingly find and conclude that no impasse had been reached by the parties during or after their negotiations.
B. The Unilateral Changes
It has been held that if parties are engaged in overall contract
negotiations which encompass mandatory bargaining subjects, the employer is
obligated not only to give the union notice and an opportunity to bargain over
the change, but also to refrain from implementation until impasse or agreement.
I have found above that the parties had not reached impasse in bargaining and accordingly the Respondent was not permitted to make the unilateral changes that it did.
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
The questions to be answered are (a) were material changes
made to the employees’ terms and conditions of employment (b) did the changes
involve mandatory subjects of bargaining (c) did the Respondent notify the
Union of the proposed changes and (d) did the Union have an opportunity to
bargain with respect to the changes. I find below that the Respondent made
material changes which involved mandatory subjects, and that it did not notify
the
1. The Change of the Health Insurance Plan
The complaint alleges that in January, Atrium changed the
health insurance plan that covered unit employees’ health claims without notice
to the
As set forth above, the Benefit Fund terminated benefits
for the Respondent’s employees on December 1, 2005 because of a failure by the
Employer to make contributions to the Fund. On December 22, the Fund informed
the Respondent and the
On December 27, 2005 and January 17, 2006, Jasinski wrote
to Alcoff that the termination of benefits forced the Respondent to protect its
workers by providing another health benefit plan which it “proposed and
implemented” to mitigate any losses and protect its employees. Contrary to
Jasinski’s use of the word “proposed” there was no evidence that any proposal
was made to the
One year later, in December, 2006, Jasinski wrote to Alcoff
stating that the
The Respondent’s answer to the complaint alleges certain affirmative
defenses, including that the
As proof of the domination of the Fund by the Union, the
Respondent asserts, according to Jasinski’s testimony, that a majority of the
Fund’s trustees were union trustees, that Silva was a trustee, that none of the
employer trustees were
As Alcoff stated, the
The Respondent defends its implementation of the new plan on the ground that due to the Fund’s termination of benefits for its employees they were left without health insurance. In making this claim the Respondent is, in effect, arguing that it was faced with an “economic exigency” which required such action. No such showing has been made here.
The principle of economic exigency is usually applied to cases of dire financial emergency faced by the employer. RBE Electronics of S.D., 320 NLRB 80, 81 (1995). It must be shown that the exigency was caused by “external events, was beyond the employer’s control, or was not reasonably foreseeable.” RBE at 82. The Respondent cannot show that any of those circumstances was present. Clearly, the termination of benefits by the Fund was caused by internal events – the Respondent’s failure to pay its contractual contributions to the Fund. It was not beyond the Respondent’s control since it could have made those payments. Further, the termination of the Fund’s benefits was reasonably foreseeable since if payments to fund the plan were not made it is obvious that benefits would be terminated. Moreover, the employer seeking to use this defense must give adequate notice and an opportunity to bargain with the union and bargain to impasse over the matter. RBE at 82. The Respondent has not met any of those requirements.
While it is laudable for the Respondent to arrange to have
its employees covered by a health benefit plan when the Benefit Fund terminated
their coverage, its action was nevertheless unlawful. It could have offered to
bargain with the
I accordingly find and conclude that the Respondent violated Section 8(a)(5) of the Act, as alleged, by changing its health insurance plan without prior notice to the Union and without affording it an opportunity to bargain with Atrium regarding this conduct and the effects of this conduct. The standard remedy for unilaterally implemented changes in health insurance coverage includes the restoration of the status quo ante regardless of whether such a requirement is “necessary or possible.” Larry Geweke Ford, 344 NLRB 628, 628 (2005).
2. The Baylor incentive program
The complaint alleges that on about March 1, 2006, Respondent
Atrium eliminated the Baylor Incentive Program without prior notice to the
As set forth above, the Respondent stipulated that it eliminated the BIP on or about March 1, 2006. The BIP was an arrangement whereby the nurses worked on Saturday and Sunday each week, totaling about 32 hours per week but were paid for 40 hours. The notice sent to the nurses advised them to speak to the director of nursing about “other options.” Accordingly, it is apparent that the nurses’ working conditions—their hours and wages were changed.
The Board has long held that “an employer violates Section
8(a)(5) when it makes a material and substantial change in wages, hours, or any
other term of employment that is a mandatory subject of bargaining, at a time
when unit employees are represented by a union, and in the absence of an impasse
in bargaining. Even where a change resulted directly from a permissible,
preelection or managerial decision concerning the scope of the business, the
employer is required to bargain over the change as an effect of that decision.”
First National Maintenance Corp. v. NLRB,
452
The General Counsel has established a prima facie violation by showing that the Respondent changed the terms and conditions of employment of the Baylor nurses by eliminating the BIP. The evidence establishes that their wages and hours, mandatory subjects of bargaining, were changed by the notification to them that the BIP would no longer be offered and they were advised to discuss other options with management.
I credit Alcoff’s uncontradicted testimony that the Respondent
did not offer to bargain with the
Whether Alcoff may have objected to the nurses’ higher
salaries is irrelevant to the question here which is whether the Respondent
made a material and substantial change in a term of employment without
negotiating with the
In defense, the Respondent argues that (a) impasse in bargaining had been reached (b) the decision to eliminate the BIP was lawful in that there were too few nurses in the program for it to operate properly (c) the Baylor nurses were not part of the unit (d) the BIP is not mentioned in the collective-bargaining agreement and (e) the expired contract’s management rights clause permitted this change. First, as set forth above, I find that no valid impasse was reached in bargaining. Second, regardless of whether the decision to eliminate the program was a lawful economic decision, the Respondent still had an obligation to bargain about such a material change. First National Maintenance, above. In addition, the evidence is clear that the Baylor nurses were licensed practical nurses which are part of the contractual unit. In addition, although the terms of the BIP were not specifically set forth in the contract, “an employer’s established past practice can become . . . . an implied term and condition of employment. Any unilateral change in an implied term or condition of employment violates Section 8(a)(5) and (1) of the Act. Finch, Pruyn & Co., 349 NLRB 270 fn. 31 (2007). Here, I credit Alcoff’s testimony that it was the practice of the Respondent to have such an arrangement for certain nurses before and during their current negotiations. Accordingly, the BIP was an established past practice which had become an implied term and condition of employment.
Finally, 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
I therefore find and conclude that Respondent Atrium violated Section 8(a)(5) of the Act as alleged by eliminating the Baylor Incentive Program without prior notice to the Union and without affording it an opportunity to bargain with Atrium regarding this conduct and the effects of this conduct.
3. Access by the
The complaint alleges that since on about July 20, 2006, Atrium changed the access right of Union representatives to its facility for the purpose of meeting with unit employees to more effectively represent them, by denying Union representatives such access rights.
The Board has held that contractual provisions setting
forth a union’s right of access to an employer’s facility survive the
expiration of the collective-bargaining agreement. Gilberton Coal Co., 291 NLRB 344, 348 (1988); Scott Bros. Dairy, 332 NLRB 1542 fn. 2 (2000); T.L.C. St. Petersburg, 307 NLRB 605, 610 (1992). Accordingly, the
question is whether the
As set forth above, a Union meeting was scheduled for July
20 at the facility. Flyers were posted prior to that time advertising the
event. Alcoff admittedly entered the facility without having given advance
notice to the Respondent and he was asked to leave. According to Article 5-D of
the contract, the
There was no evidence that Alcoff was permitted to hold pre-scheduled Union meetings prior to this time without advising the Respondent in advance. The pre-scheduled collective-bargaining sessions which were immediately preceded by a Union meeting between Alcoff and employees did not require advance notice since the Respondent had been given advance notice of the sessions. I accordingly find that no violation occurred in the Respondent’s denying access to Alcoff for the conduct of the meeting on July 20 where the Respondent was not notified in advance as required by the contract. The mere fact that flyers were posted did not constitute the contractually required advance notice.
I credit the uncontradicted testimony of Alcoff that in August, 2006, he and agent Hamilton entered the facility, announced their presence to the receptionist and walked to the employee break room to attempt to speak with employees in this spontaneous, unplanned, unscheduled visit. They were asked to leave. Article 5-A permits a Union agent to enter the facility to discharge his duties as a union representative. The only requirement is that upon entering the facility he notify the administrator or his designee of his presence. Alcoff gave uncontradicted testimony that in the past, in an identical fashion, he announced himself to the person at the receptionist desk and proceeded to the break room and spoke to employees without interference from the Employer.
I find that Alcoff satisfied the requirements of Article 5-A by telling the receptionist of his presence. Article 5-A does not require the administrator to give his approval of Alcoff’s presence. It just demands that the union agent notify him or his designee of his presence and that thereafter he shall have admission to the facility. Alcoff followed his past practice by notifying the receptionist of his presence in August, 2006. There was no evidence that the receptionist was not the administrator’s designee. I accordingly find and conclude that the Respondent unlawfully denied access to Alcoff in August, 2006.
iii. the alleged direct dealing with employees
The complaint alleges that on about August 24, 2005,
Princeton bypassed the Union and dealt directly with its employees by making a
contract proposal to them before the proposal was made to the
This allegation relates to the Employer’s August 24 letter
to employees and family members of the residents referring to a planned job
action by the Union six days later. While the letter sought to reassure that
the residents were “taken care of,” it also informed the reader that it was
blameless since it proposed a new contract which included wage increases totaling
12%, contributions of 16% to the Benefit Fund, paid vacation, holidays and sick
days, but the
Although Jasinski stated that the purpose of the letter
was to “calm” the family members as to the safety of the residents and to
advise them of the Respondent’s position in the bargaining, that position had
not yet been presented to the
It is well settled that the Act requires an employer to meet and bargain exclusively with the bargaining representative of its employees. An employer who deals directly with its unionized employees or with any representative other than the designated bargaining agent regarding terms and conditions of employment violates Section 8(a)(5) and (1). Armored Transport, Inc., 339 NLRB 374, 376 (2003).
In Armored Transport,
above, the Board found that the employer violated its duty to bargain with the
union by handing its employees a bargaining proposal and later the same day
sending the union the same proposal. Similarly to the instant case, the
employer disparaged the union. In that case the employer suggested that the
employees demand a new election and encouraged them to reject the union. Here,
the Respondent disparaged the Union by incorrectly informing its employees that
the
An employer may communicate its bargaining position to its
employees, but here, as in Armored
Transport, the Respondent sought to undermine the Union’s status and disparage
it in the eyes of its employees by presenting a contract proposal to them
before it presented it to the Union and by stating, with no basis, that the
iv. the alleged bad faith bargaining
The complaint alleges that from about August 25, 2005 to
about December 9, 2005, Princeton failed and refused to bargain with the Union
over a successor collective-bargaining agreement by engaging in delaying
tactics, ignoring the Union’s requests to meet on numerous dates it had
proposed to bargain, and by unreasonably failing and refusing to meet on nearly
all of those dates. The complaint alleges that Atrium, which admittedly became
the successor to
There was no evidence that the Respondent cancelled any
bargaining sessions prior to August 25, or unlawfully failed to meet with the
Thus, as set forth above, on August 30, 2005, Alcoff asked Jasinski to suggest available dates for bargaining, and not hearing from him, on September 30 offered eight days in October. Jasinski did not respond. At hearing, Jasinski did not recognize and could not recall receiving the letter, but wrote to Alcoff on October 4, stating that he was not available to meet on any of the dates in Alcoff’s September 30 letter, but offering to meet in the week of October 25. By letter of October 10, Alcoff agreed to meet on October 26-28, but when Alcoff called to confirm a meeting date, Jasinski’s office said that he was not available to meet. A new session was scheduled for November 2 or 3, but Jasinski cancelled that session because he was not available, but according to the credited testimony of Alcoff, Jasinski did bargain with him about a different employer on one of those dates, and was therefore available to bargain in behalf of the Respondent.
On November 14, suggested five dates in November and ten dates in December. Jasinski agreed to meet on November 29 and December 2. They met on November 29 at which Alcoff inquired about an alleged new owner and asked Jasinski to respond at the December 2 meeting. On November 30, Jasinski cancelled the December 2 meeting unless Alcoff made a “meaningful contract proposal,” but asked Alcoff to propose other dates.
On December 9, Atrium became the admitted successor to Pavilions. The new employer’s delaying tactics continued as before.
On January 19, 2006, Alcoff offered all dates in February,
but none were acceptable to Jasinski. On April 11, Jasinski conditionally
offered to meet in late April or early May “provided that Alcoff represents the
employees.” Nevertheless, on May 10, Jasinski stated that he had no objection to
meeting with Alcoff or other representative designated by the
Alcoff wrote on May 15, offering to meet between June 5
and 15. Jasinski agreed to meet on June 12. Alcoff cancelled that session
because of his unavailability due to the counting of ballots in the internal
union election, and because of the lack of cooperation of the
On June 20, Alcoff offered all dates from July 10 through the end of July. None were accepted by Jasinski. On July 10, Jasinski asked Alcoff to propose dates for bargaining. Alcoff responded by letter of July 17, offering to meet on four dates in July and on August 1. Again, none of the dates was agreed to by Jasinski.
On October 23, Jasinski wrote that he was willing to attend further bargaining sessions. Alcoff replied that he could meet during two weeks in mid-December but wanted information he had previously requested. Jasinski did not agree to meet during those two weeks. Jasinski wrote on December 27, offering to meet during the weeks of January 2 or 8, 2007. Alcoff replied on January 9, having just returned from vacation, that he was available during the week of January 29. Jasinski replied, but did not address Alcoff’s request to meet and no meeting was held. It does not appear that the parties met for bargaining at any time thereafter.
Based on the above, the evidence is quite clear that the
Respondent, as alleged, failed and refused to bargain by engaging in delaying
tactics, ignoring the
In addition, Jasinski’s refusal, for one month, from April
11 to May 10, to meet with the
Incredibly, Jasinski seized upon Alcoff’s sole cancellation
of a meeting, June 12, to ask for dismissal of the charges on the basis that
the
Jasinski’s credibility is further harmed by his failure to
recall receipt of the
The Board has held that an employer’s “pattern of delay”
is evidence of its violation of its Section 8(d) obligation to meet with the
v. the failure to furnish information to the
The complaint alleges that on January 19, June 20 and July
17, 2006, the
As set forth above, on January 19, 2006, Alcoff wrote to Jasinski, asking for a copy of the summary plan description of the new health plan implemented by the Employer, the total premium costs, the costs to employees to obtain coverage under the new plan, and the number of employees who are covered under the new plan. These documents were requested because Alcoff had just learned that the Respondent implemented a new health benefits plan for its employees, and it sought to bargain about this change.
On June 20 and July 17, 2006, Alcoff asked for an updated list of all unit employees by job classification, including their name, address, social security number, job title, date of hire, wage rate, shift, etc., since January 1, 2006; copies of correspondence to employees since December 1, 2005 regarding terms and conditions of employment; copies of personnel policies or the employee handbook that was changed since December 1, 2005; summary plan descriptions of insurance plans offered to employees; cost to the employer and the employees of insurance plans; gross bargaining unit payroll from January 1, 2006 through May 31, 2006; and a summary of the policies and benefits offered to the “Baylor Nurses.”
These documents were requested because of the purchase of the facility by a new owner, Atrium. Alcoff sought to determine what changes the new owner made in its employees’ terms and conditions of employment as of the time of the new ownership. Alcoff testified that this was the first time he requested copies of correspondence and copies of the personnel policies, handbook and payroll, and he sought the information for the periods set forth because the new owner purchased the facility in December, 2005. His further reasons for seeking the data were that he heard from employees that there were changes in their terms and conditions of employment including their dates of hire and their accruals of paid time off.
I credit Alcoff’s uncontradicted testimony that none of
the information requested was provided to the Union, and the Respondent has not
shown that it had, in fact, provided the information requested in the
The Union’s reasons for requesting the information, set
forth above, establish that the documents sought were essential, necessary and
relevant to the
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, 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.”
The Respondent’s defenses are that it provided information
to prior Union bargainers who said that no further information was needed, the
I accordingly find that the information requested in the letters of January 19, June 20 and July 17, 2006, all of which was presumptively relevant in that it pertained to the unit employees, was necessary for and relevant to the performance of the Union’s duties as the exclusive collective-bargaining representative of the unit employees. The Respondent’s failure to furnish the information requested violated Section 8(a)(5) of the Act.
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 part-time certified nurses assistants, housekeeping employees, dietary employees, laundry employees, staff licensed practical nurses, unit clerks, unit secretaries, activities/recreations employees, maintenance employees employed at the Pavilions, but excluding registered nurses, office clerical employees, supervisors, watchmen and guards.
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 changing the access right of Union representatives to its facility.
5. The Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing the health insurance plan that covered unit employees’ health expenses.
6. The Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally eliminating the Baylor Incentive Program.
7. The Respondent violated Section 8(a)(5) and Section
8(a)(5) and (1) of the Act by bypassing the Union and dealing directly with its
employees by making a contract proposal to them before the proposal was made to
the
8. The Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally engaging in delaying tactics, ignoring the Union’s requests to meet on numerous dates it had proposed to bargain and by unreasonably failing and refusing to meet on certain dates for bargaining.
9. 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 January 19, 2006 and June 20, 2006 and July 17, 2006, which was necessary for and relevant to the performance of the Union’s duties as the exclusive collective-bargaining representative of the unit employees.
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 August 24, 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 recommended14
ORDER
The Respondent, Atrium at
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 part-time certified nurses assistants, housekeeping employees, dietary employees, laundry employees, staff licensed practical nurses, unit clerks, unit secretaries, activities/recreations employees, maintenance employees employed at the Pavilions, but excluding registered nurses, office clerical employees, supervisors, watchmen and guards.
(b) 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.
(c) Unilaterally changing the access right of Union representatives to its facility.
(d) Unilaterally changing the health insurance plan that covered unit employees’ health expenses.
(e) Unilaterally eliminating the Baylor Incentive Program.
(f) Failing and refusing to bargain with the Union over a
successor collective-bargaining agreement by engaging in delaying tactics,
ignoring the
(g) Bypassing the Union and dealing directly with its employees
by making a contract proposal to them before the proposal was made to the
(h) Failing and refusing to supply information requested by the Union in its letters of January 19, 2006, June 20, 2006 and July 17, 2006, which was necessary for and relevant to the performance of the Union’s duties as the exclusive collective-bargaining representative of the unit employees
(i) 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 part-time certified nurses assistants, housekeeping employees, dietary employees, laundry employees, staff licensed practical nurses, unit clerks, unit secretaries, activities/recreations employees, maintenance employees employed at the Pavilions, but excluding registered nurses, office clerical employees, supervisors, watchmen and guards.
(b) On request, cancel and rescind all terms and conditions
of employment which it unlawfully implemented or unlawfully eliminated on and
after August 24, 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 August 24, 2005, and continue them in effect until the parties either reach an agreement or a good-faith impasse in bargaining.
(d) 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 August 24, 2005, plus interest.
(e) Furnish to the Union in a timely manner the information
requested in 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.
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 part-time certified nurses assistants, housekeeping employees, dietary employees, laundry employees, staff licensed practical nurses, unit clerks, unit secretaries, activities/recreations employees, maintenance employees employed at the Pavilions, but excluding registered nurses, office clerical employees, supervisors, watchmen and guards.
We will not prematurely declare impasse and unilaterally implement certain changes in your terms and conditions of employment when we have not reached a valid, good-faith impasse in bargaining.
We will not unilaterally change the access right of Union representatives to our facility.
We will not unilaterally change the health insurance plan that covered your health expenses.
We will not unilaterally eliminate the Baylor Incentive Program.
We will not
fail and refuse to bargain with the Union over a successor
collective-bargaining agreement by engaging in delaying tactics, ignoring the
We will not
bypass the Union and deal directly with you by making a contract proposal to
you before the proposal was made to the
We will not fail and refuse to supply information requested by the Union in its letters of January 19, 2006, June 20, 2006 and July 17, 2006, which was necessary for and relevant to the performance of the Union’s duties as your exclusive collective-bargaining representative.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights you are guaranteed 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 part-time certified nurses assistants, housekeeping employees, dietary employees, laundry employees, staff licensed practical nurses, unit clerks, unit secretaries, activities/recreations employees, maintenance employees employed at the Pavilions, but excluding registered nurses, office clerical employees, supervisors, watchmen and guards.
We will on request, cancel and rescind all terms and conditions of employment which we unlawfully implemented or unlawfully eliminated on and after August 24, 2005, but we will not be required to cancel any unilateral changes that benefited you without a request from the Union.
We will at the Union’s request, restore to you the terms and conditions of employment that were applicable prior to August 24, 2005, and continue them in effect until we and the Union 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 August 24, 2005, plus interest.
We will
furnish to the Union in a timely manner the information requested in the
Atrium at Princeton, llc d/b/a Pavilions at Forrestal
and