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,
December 24, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On July 30, 2008, Administrative Law Judge Steven Fish
issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General Counsel and the
The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order as modified.1
ORDER
The
National Labor Relations Board adopts the recommended Order of the
administrative law judge as modified below and orders that the Respondent, Kingsbridge
Heights Rehabilitation and
1. Substitute the following for paragraph 1(b).
“(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them by Section 7 of
the Act.”
2. Substitute the following for paragraph 2(a).
“(a) Pay into the Union’s Funds those contributions that
it failed to make on behalf of its unit employees, as set forth in the remedy
section of this decision, and continue to make the required timely contributions
until such time as it bargains with the
3. Substitute the following for paragraph 2(c).
“(c) 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 and determine the amounts owed to the various Union Funds.”
4. Substitute the attached notice for that of the
administrative law judge.
Dated,
______________________________________
Peter C. Schaumber, Chairman
______________________________________
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
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 and refuse to make timely contributions to the Greater New York Benefit Fund, the Greater New York Pension Fund, Greater New York Education Fund, the Greater New York Job Security Fund, the Greater New York Child Care Fund, and the Greater New York Workers Participation Fund (collectively called the Funds), without notifying and bargaining with the 1199 Service Employees International Union, United Health Care Workers East (the Union).
We will not in any like or related manner interfere with, restrain, or coerce employees in the rights guaranteed them by Section 7 of the Act.
We
will pay into the Union’s Funds those contributions that we failed to
make on behalf of our unit employees and continue to make the required timely contributions
until such time as we bargain with the
We
will make whole with interest the unit employees for any losses suffered
by reason of our failure to make timely payments to the
Kingsbridge Heights Rehabilitation and
Henry Powell, Esq., for the General Counsel.
Joel E. Cohen, Esq. (McDermott, Will &
Emery), of
Hanan Kolko, Esq. (Meyer, Suozzi, English
& Klein, P.C.), of
DECISION
Statement of the Case
Steven Fish, Administrative Law Judge. Pursuant to charges filed on December 6,
2005,1 by 1199 Service Employees International
Union United Health Care Workers East (the
On
June 26, 2006, I approved a request to dismiss the remaining portions of the
complaint and to withdraw the charge, subject to reopening and reinstatement in
the event that Respondent fails to comply with the terms of the
settlement. I therefore closed the
hearing subject to a motion to reopen in the event of noncompliance by
Respondent with its agreement.
Subsequently
I received requests from the Charging Party and the General Counsel to reopen
the trial, based on alleged noncompliance by Respondent of the settlement
agreement. I issued an Order to Show
Cause on November 20, 2007, why the request to reopen should not be granted. After receiving responses from the parties,
including Respondent’s objection to the reopening, I granted the motion to
reopen, by Order dated December 12, 2007.
The reopened hearing was held on January 28 and May 1, 2008.
Briefs
have been filed by all parties, and have been carefully considered. On the entire record, including my
observation of the demeanor of the witnesses, and after considering the briefs
filed by the parties, I make the following
Findings of Fact
i. jurisdiction and labor organization
Respondent
is a New York Corporation, with its principal office and place of business at
3400-26 Canon Place, Bronx, New York (the Bronx facility), where it is and has
been engaged in providing nursing and other services for the elderly and other
individuals.
During
the past year, Respondent derived revenues in excess of $100,000 and purchased
and received at its Bronx facility, products, supplies, and materials valued in
excess of $5000 directly from points located outside the State of
Respondent
admits, and I so find, that it is and has been an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and a health care
institution within the meaning of Section 2(14) of the Act.
It
is also admitted and I so find that the
ii. prior related cases
A.
This
case involved two Employers, Resort Nursing Home, located in Far Rockaway,
ing agreements on behalf of Resort
and Respondent for many years.
In
2001, although both Respondents became dissatisfied with Association
representation, they did not send a written withdrawal from the Association
until January 31 and February 11, 2002.
Bargaining had commenced between the Association and the
Respondents
refused to sign the contract, eventually agreed upon by the Association, and an
8(a)(5) complaint was issued.
Respondents defended their refusal to do so, on the grounds that the
Association had not notified Respondents, that negotiations were to begin, and
that the negotiations began 10 months before the expiration date of the
previous collective-bargaining agreement.
However
the administrative law judge, affirmed by the Board, as well as by the court of
appeals, rejected Respondents’ defenses, and found that they had violated
Section 8(a)(1) and (5) of the Act, and ordered the Respondents to sign the Association
contract, and reimburse the Union’s Benefit Funds, for payments due under the
contract.
B.
This
case involved charges filed by the
BACKGROUND TO THE INSTANT DISPUTE
The
It appears from the record that, commencing in about June
2005, Respondent failed to make timely or complete payments to various benefit
funds provided for in the agreement. On
December 6, 2005, the
Sometime in early 2006, facility Operator Helen Sieger,
together with Assistant Administrator Solomon Rutenberg, met with union
representatives, including Executive Vice President Jay Sackman and Vice
Presidents Neva Shillingford and Isaac Nortey,3
to discuss these delinquencies. Sieger
had asked for a delinquency report and testified that this report showed that
Respondent was more current in its payments to the
After an investigation of the unfair labor practice
charges filed by the
THE
THE RESPONDENT
Prior to the effectuation of the above-described settlement,
in February 2006, employees took a strike vote.
Shortly thereafter, the
On February 27, Nortey sent Rutenberg a letter informing
him of the
The
complaint allegations litigated dealt with Respondent’s reaction to the
iii. the settlement agreement
The
settlement agreement executed by the parties and approved by me, provided for
payments to be made by Respondent to a number of Union Funds. These Funds included the 1199 SEIU Greater
New York Benefit Fund, Pension Fund, Education Fund, Child Care Fund, Job
Security Fund, and Worker Participation Fund.
I shall refer subsequently to them collectively as the Funds.
Paragraph
3 of the agreement reads as follows:
In addition to
the contributions described above, Respondent will make timely monthly
contributions to the Benefit, Pension, Education, Job Security, Worker
Participation and Child Care Funds, as they become due.
The
settlement agreement does not define “timely monthly contributions.”
There
is no dispute that Respondent made the monetary contributions to the Funds,
agreed upon in the settlement agreement.
However, there is a dispute, as to whether Respondent made “timely
contributions” to the Funds, subsequent to the execution of the agreement.
It
is that issue that was litigated herein, as well as the presettlement conduct
of Respondent, which gave rise to the instant complaint.
iv. presettlement conduct
Respondent
and the
The
agreement requires Respondent to make monthly contributions to the Funds, which
are a percentage of gross payroll, and are due on the 10th day of each month
following the month the contribution was accrued.
The
record reveals that payments are calculated based on the number of employees
that worked in that particular month, in accordance with a contribution report submitted
by Respondent. When no such report is
submitted by Respondent, the Fund manager would estimate the amount due, based
upon the report submitted the previous month.
If Respondent or any employer later provided the contribution and it
turned out an over estimate was made, that employer or Respondent would receive
a credit.
Starting
in June 2005, Respondent stopped making timely contributions to the Funds, as
required by the collective-bargaining agreement.9 In that regard, the parties further stipulated
that Respondent’s payment due to the Benefit Fund on June 10, 2005, covering
the period from May 1 to 31, 2005, was not paid until August 30, 2005.
For
the payment due on July 10, 2005, for the period covering June 1 to 30, 2005,
Respondent’s payment was not made until October 14, 2005. Respondent’s next payment was made on
December 20, 2005, which was for the month of July 2005, and which was due on
August 10, 2005. The payment for August
2005, and due on September 10, 2005, was not made until January 19, 2006.
On
or about November 28, 2005, Respondent was notified by the Benefit Fund, that
health coverage for its employees would be terminated effective January 31,
2006, unless all arrearages were satisfied.
Between
November 28, 2005, and January 31, 2006, Joel Cohen Respondent’s attorney had
several phone conversations with Irwin Bluestein and Hanan Kolko, attorneys for
the
On
January 31, 2006, the Benefit Fund did cut off medical benefits for
Respondent’s employees. On February 22,
2006, a meeting was held at the
Cohen
responded that “we11 can’t
possibly be the only health institutions who have relationships with 1199 who
were delinquent in payments to the Funds.”
Sackman answered that the “
Cohen
asked if any other health care institutions had their benefits cut off. Sackman replied, “No,” and explained that the
other institutions had a signed contract with the
Sackman
responded that the
The
parties then discussed the two open issues in the contract at the time. They were who the arbitrator would be in the
contract, and the Respondent’s position that it did not want to continue to
contribute to the Child Care Fund. Various
proposals went back and forth, but no agreement was reached. Cohen reiterated Respondent’s prior offer to
sign an interim agreement, so that health benefits are not cut off. Sackman reiterated the
Respondent
made no payments to the Benefit Fund for the months of February, March, and
April 2006.13 Respondent had agreed to provide medical
coverage for its employees during this period of time.
Respondent
made a payment to the Benefit Fund on February 17, 2006, which covered the
month of September 2005, which was due on October 10, 2005. On April 10, 2006, Respondent made its next
payment covering the months of October and November 2005, which were due on
November 10 and December 10, 2005, respectively. On April 26, 2006, Respondent made a payment
to the Benefit Fund, covering the month of December 2005, which was due on
January 10, 2006. On May 2, 2006,
Respondent made a payment for the month of January 2006, which was due on
February 10, 2006.
With
respect to the Greater New York Pension Fund, Respondent made payments from
August 30, 2005, through April 26, 2006, on the same dates that it made the
payments to the Benefit Fund, covering the same months. As of the date of the settlement, Respondent
had not made the payment covering the month of January 2006, to the Pension
Fund, which was due on February 10, 2006.
With
respect to the Education Fund, Respondent’s payments were the same time as its
payments to the Pension Fund. That is
the payments ranged from 3–5 months late, and no payment was made, as of June
2006, for the month of January 2006, which was due on February 10, 2006.
Respondent
made no payments at all into the Child Care Fund, covering the months from May
2005 through the date of the settlement, June 8, 2006.14
Respondent also failed, as of the date of settlement agreement, to make
any contributions to the Job Security Fund or the Workers Participation Fund,
for the months of May 2005 through May 2006, which were due in each case, on
the 10th of the month after the month covered by such payments.
As
noted above, on June 8, 2006, the second day of the trial, the parties entered
into a settlement agreement, covering most of the allegations in the
complaint. Respondent had made or agreed
to make payments to the Funds to make up its delinquencies, except for payments
to the Benefit Funds, for the months of February through April.15
As
also related above, initially Respondent litigated its failure to make payments
to the Benefit Funds, for the months of February through April, arguing that
since the Union had improperly cut off medical benefits, and Respondent had
agreed to provide health benefits to its employees during this period,
Respondent had not violated the Act, by failing to make the payments for those
months.
On
June 2, 2006, the Benefit Funds reinstated health coverage for Respondent’s
employees, effective May 1, 2006.
As
also noted above, on June 26, 2006, the parties entered into a nonboard
settlement, resolving the remaining issue of the 3-month period, where
Respondent made no payments to the Benefit Fund.
v. postsettlement conduct
The
first payments due subsequent to the execution of the settlement agreement, was
for the month of June 2006, and which were due by July 10, 2006. Respondent made payments to all the Funds
with checks dated October 9, 2006, which were received and credited by the
Funds on October 27, 2006.
The
next payments due for the month of July 2006, which were due by August 10,
2006, were paid by Respondent by checks dated October 31, 2006, received by the
Funds on November 17, 2006, and credited to Respondent’s account on November
28, 2006.16
For
the month of August 2006, payments were due by September 10, 2006. With respect to this month’s payment Respondent
sent a check dated October 31, 2006, to the Benefit Fund for $1,684.48. This check was received by the Fund of
November 17, 2006, and credited to Respondent’s account on November 22, 2006. The amount due for that month, according to
the Fund at the time was $111,3118.37.17
As
for the Pension Fund, the Education Fund, the Child Care Fund, and the Workers
Participation Fund, Respondent sent checks covering August 2006 and also due on
September 10, 2006, dated November 13, 2006, received by the Funds on November
17, 2006, and credited to Respondent’s accounts on November 22, 2006.
The
next month for which payments were due was for the month of September 2006, due
by October 10, 2006. Respondent sent
checks to all the Funds, dated November 20, 2006, which were received by the
Funds on November 29, 2006, and credited to Respondent on that same date.
Checks
covering the month of October 2006 were due by November 10, 2006. Respondent sent checks dated November 27,
2006, which were received by the Funds on December 27, 2006, and credited to
Respondent’s accounts on December 28, 2006.
Contributions
for the month of November 2006, were due by December 10, 2006. Respondent sent a check to the Benefit Fund,
dated December 18, 2006, received by the Fund on December 19, 2006, and
credited to Respondent’s account on December 20, 2006.
Respondent
made no payments to the Pension Fund, Education Fund, the Child Care Fund, the
Job Security Fund, or Workers Participation Fund for the month of November
contributions, due on December 10, 2006.
Contributions
for the month of December 2006, were due by January 10, 2007. Respondent made no payments for this month to
any of the Funds.
Payments
for the month of January 2007, were due by February 10, 2007. Respondent sent checks dated February 9,
2007, to the Funds. However, these
checks were not received by the Benefit, Pension, and Education Funds until
March 30, 2007, and these checks were credited to Respondent’s account on that
same date. The check covering the Child
Care Fund was received by the Funds on April 4, 2007, and credited to
Respondent’s accounts on that date.18
The
checks to the Job Security Fund and for the Workers Participation Fund which
were also dated February 9, 2007, were credited to Respondent’s accounts on
April 5, and on April 23, 2007, respectively.
There are no date stamps on these checks. However, these checks are numbered 63704 and
63705. Since check 63703 to the Child
Care Fund was date stamped April 4, 2007, I find it likely that these two
checks were received by these Funds, on dates between April 9 and April 23,
2007.
The
next payments due were for the month of February 2007, and due by March 10,
2007. To cover these months, Respondent
sent checks dated April 10, 2007, but which were not received by the Funds
until May 3, 2007.19 The Funds credited Respondent’s accounts with
these checks on May 4, 2007.
Contributions
due on April 10, 2007, for the month of March 2007, were paid by checks dated
April 10, 2007, and credited to Respondent’s accounts on June 28, 2007. Since the date stamps on these checks are
dated June 27, 2007, I again find that these checks were received by the Funds
on that date. I also rely upon the
numbers of Respondent’s checks, in concluding that they were received in
accordance with the Funds records. Thus,
the checks for the previous month (February), received by the Funds on May 3,
2007, were also dated April 10, 2007.
The check numbers on these checks were 63979 through 63484. Further, the checks for March, due April 10,
2007, although also dated April 10, 2007, had check numbers of 64340 through
64345. In view of the huge gap in
numbers of the checks, I find it highly unlikely that these two batches of checks
were all written on April 10, 2007, as Respondent appears to argue. Rather, I conclude, as detailed above, that
neither groups of checks were sent by Respondent to the Funds on April 10,
2007.
April
contributions were due on May 10, 2007.
Respondent sent checks to the Funds dated May 10, 2007, to cover this
month. However, based on the date stamps
on these checks, as well as the credible testimony of Petrella, I find that the
checks were not received by the Funds until July 27, 2007. They were credited to Respondent’s accounts
on July 30, 2007.20
Contributions
for the month of May 2007, were due on June 10, 2007. Respondent sent checks to the Funds dated
June 10, 2007, but which were not received by the Funds until August 8, 2007.21
These checks were credited to Respondent’s account on August 9, 2007.
Respondent
made no payments to any of the Funds for the next month (June 2007), due on
July 10, 2007, and has not made any further payments to the Funds to date. Thus, Respondent’s last payments were made on
August 8, 2007, covering the month of May 2007, and which was due on June 10,
2007.
Respondent
argues without a shred of evidence, that the
Furthermore,
the General Counsel subpoenaed financial records such as check ledgers from
Respondent, which might have shown when these checks were actually sent to the
Funds. I agree that it is appropriate to
draw an adverse inference from Respondent’s failure to produce these documents,
and find that these records would support my findings above, that Respondent’s
checks were not sent on the dates appearing thereon. Essex
Valley Visiting Nurses, 352 NLRB No. 61 fn. 3, ALJD slip op. at 14–15
(2008).
On
August 23, 2007, Hanan Kolko, the
On
August 27, 2007, Joel Cohen sent a letter and a FAX to Kolko. This document states that Respondent “wishes
to negotiate a change in how it makes payments to the 1199 Fringe Benefits
Funds. Kingsbridge proposes that it be
given up to 7 months to make payments to the various Funds without being
considered in arrears.” The letter goes
on to request that Kolko contact Cohen with dates when the
Neither
Kolko nor the
In
early November 2007, the Benefit Fund again canceled health coverage for
Respondent’s employees, due to Respondent’s failure to remit contributions.
In
late November 2007, Cohen received a phone call from Union Vice President Mike
Rifkin. Rifkin informed Cohen that the
On
November 26, 2007, I issued an Order to Show Cause why the
On
December 6, 2007, the General Counsel filed a response to the Order to Show
Cause, joining in the
On
December 7, 2007, the
On
December 12, 2007, I issued an Order granting the motions of the Charging Party
and the General Counsel to reopen the hearing.
Sometime in December 2007, Local 1199 sent out a flyer to its members,
announcing a Family Day for December 22, 2007, at a picket line at Respondent
to tell Helen Sieger, the owner of Respondent that the
On
December 11, 2007, Cohen wrote a letter to Irwin Bluestein. The letter reads as follows:
Dear Irwin:
Please see attached.
It is absolutely clear that the
Secondly, two comments in the flyer are absolute brazen
lies. First the statement that there has
been no contract since 2000 is a lie. There has been no contract since April 2005. More importantly the statement that Helen
Sieger has refused to negotiate is a lie.
Helen Sieger has agreed since 2005 to sign the Greater New York Contract
except that she wants American Arbitration Association arbitrators to hear
contract disputes, not the “impartial Chairman,” Martin Scheinman. That is the only issue that has kept the
parties from signing a contract. Send Ms. Sieger the Greater
Moreover, Ms. Sieger has not taken away health benefits, the 1199 Benefit Fund has cut off benefits allegedly due to late payments. However, Kingsbridge is no later in payment than most 1199 health care institutions who have not had benefits cut off. 1199 has cut off the benefits for Kingsbridge, to provoke its employees to strike, since it knows employees won’t strike over who the arbitrator should be.
Finally, we have evidence that 1199 is actively seeking to close Kingsbridge “to teach Helen Sieger a lesson” even if it means that Kingsbridge employees will lose their jobs.
Kingsbridge will not stand by and allow 1199 to close its doors to the detriment of its employees “to teach Helen Sieger a lesson.” Kingsbridge will shortly commence legal action to protect itself and its employees from 1199’s shameful conduct.
Very truly
yours,
Joel E. Cohen
On
January 8, 2008, Helen Sieger sent a memo to Respondent’s employees, apparently
memorializing what she had said in a meeting with its employees that day. That memo reads as follows:
January 7,
2008
To All
Employees of
This letter serves to confirm our conversation of today’s meeting at 5:00 P.M. I agree to immediately sign the previously agreed upon contract with 1199, adding the American Arbitrators Association as the arbitrator instead of Martin Scheinman.
This, and only this is the reason that I have not signed
the contract to date. The union
terminated your health benefits in an attempt to exert pressure on the staff
thereby forcing
Sincerely,
Helen Sieger
Mike
Rifkin responded to Sieger’s January 8, 2008 letter to the Respondent’s
employees, by a letter to Sieger dated January 23, 2008. It states:
January 23,
2008
Dear Ms.
Sieger,
This is in response to your January 7, 2008 letter to the employees at Kingsbridge Heights Rehabilitation Care Center, in which you state that you “agree to immediately sign the previously agreed upon contract with 1199, adding the American Arbitrators[sic] Association as the arbitrator instead of Martin Scheinman.”
I don’t know what you mean by the “previously agreed upon contract.” However, I wish to make 1199’s position clear, as follows:
1. 1199 is prepared to enter into an agreement with Kingsbridge Heights for the period June 1, 2004 through April 30, 2011 on the same terms as are contained in the June 1, 2004 through April 20, 2008 and May 1, 2007 through April 30, 2011 MOA’s between the Union and the Greater New York Health Care Facilities Association, Inc.
2. 1199 is prepared to agree with you on one or more arbitrators, each of whom is a panel member of the American Arbitration Association, to serve as Impartial Chairman (Chairmen) under the agreement, in place of Mr. Scheinman.
3. Whether or not a collective bargaining agreement is entered into, health and other benefits cannot be reinstated until Kingsbridge pays, or enters into an arrangement satisfactory to the funds’ Trustees to pay its indebtedness to the Funds, which is currently in excess of $2,600,000.
4. Irrespective of whether a collective bargaining
agreement is entered into, the
5. As you know, 1199 has served Kingsbridge with a strike notice effective February 20, 2008 at 6:00 am. In the event 1199 is compelled to strike, it reserves the right to withdraw this offer.
I await your reply.
Very
truly yours,
Mike
Rifkin
Sieger
responded to Rifkin’s letter, by again sending a letter to Respondent’s employees. This letter reads as follows:
January 25,
2008
To: 1199 Union Members
In response to the 1199 Union’s letter date January 23,
2008 I would like to clarify some of the techniques Mr. Rifkin is using to
further manipulate the employees of Kingsbridge Heights Rehabilitation and
First, Mr. Rifkin offered to sign a contract ONLY back to June 1, 2004. This is the unions way of taking back the dues monies that is legally yours. Also the end of the year 3 banked days that I paid to you instead of the “benefit fund” as instructed by 1199 will also go back. Along with other negative implications to the facility.
Second, Mr. Rifkin says “1199 is prepared to agree with you on one or more arbitrators,” I do not have a problem with Mr. Scheinman per se, I have a problem with 1199 denying my right to have a “RANDOMLY” chosen Arbitrator from American Arbitration Association.
Choosing an Arbitrator with 1199 who will rule on all cases involving the facility and 1199 is unjust and unfair. Ask yourself why is Mr. Rifkin and 1199 so adamant about having a set Arbitrator to the degree that they are playing with your jobs and your family’s lives?
My position has not changed I will sign a contract if and
while the
Obviously if Mr. Rifkin and 1199 decide to strike this becomes a moot point and I wish all of you the best of luck.
Sincerely,
Helen
Sieger
As
I have related above the reopened hearing took place on January 28 and May 1,
2008.23
The
record also reflects, that as promised in the
vi. analysis
A. Postsettlement Conduct
In
order to find violations of the Act in this proceeding, it first must be
determined if Respondent violated the terms of the settlement agreement that it
entered into on June 8, 2006. If so,
then I can assess whether the pre and postsettlements conduct of Respondent are
violative of the Act, and order appropriate remedial relief for such
actions. Oster Specialty Products, 315 NLRB 67, 70 (1994); Kuna Meat Co., 304 NLRB 1005 (1991),
enfd. 966 F.2d 428 (8th Cir 1992); R. T. Jones Lumber Co., 303 NLRB 841,
843 (1991); and City Cab of
In
that regard, it is well settled that terms and conditions of employment
included in a collective-bargaining agreement, such as contributions to union
funds, survive contract expiration, and cannot be altered without bargaining to
impasse, the
The
settlement agreement executed by Respondent requires that “in addition to the
payments described above,24 Respondent
will make timely monthly contributions to the Benefit, Education, Job Security,
Worker Participation, and Child Care Funds, as they become due.”
The
first issue to be decided is the definition of “timely” contributions, and what
is meant by payments “as they become due.”
Respondent argues in this regard that since the settlement agreement
does not define these terms, that the General Counsel has not proven that the
agreement has been breached, and that Respondent has “remained relatively
current,” in its payments to the
While
in some circumstances, there can be legitimate issues as what constitutes
“timely” payments, there is no such issue here.
What constitutes “timely” payments is defined in the
collective-bargaining agreement, as the 10th of the month after the month for
which the contribution was accrued.
Since as I have related above, the terms of the collective agreement survives
the expiration of the contract, these provisions in the contract that define
timely payments for each Fund are still in effect. I so find.
Turning
to the facts here, the record establishes that from the first month after the
settlement was executed, Respondent has failed to make timely payments to the
Funds. Thus, the first payment due,
postsettlement, for the month of June 2006, was due on July 10, 2006, and was
not made until October 27. For the next
month’s contributions, for the month of July, and due on August 10, 2006,
Respondent’s payments were not received until mid November 2006, over 3 months
late. Respondent continued to make
untimely payments thereafter, ranging from 9 days late (Benefit Fund monthly payments
for the month of November 2006, due on December 10, 2006), to 2-1/2 months
late. (Month of March 2007, due on April
10, 2007, not received until June 27, 2007.)
Further, Respondent made no contributions at all to the Pension,
Education, Child Care, Job Security, or Workers Participation Funds, for the
month of November 2006, due on December 10, 2006. It also failed to make any payments to any of
the Funds for the month of December 2006, due on January 10, 2007.
Respondent
resumed making payments, albeit on an untimely basis, covering the months of
January 2007 through May 2007.
Respondent’s last payment was made on August 9, 2007, for the month of
May 2007, due on June 10, 2007 (nearly 2 months late) and has not made any payments
thereafter. Thus, starting with the
payment due on July 10, 2007, covering the month of June 2007, Respondent has
failed to make contributions to any of the Funds.
There
can be little doubt based on the above facts, that Respondent has failed to
make “timely” contributions to the Funds, “as they became due,” as required in
the settlement agreement. I so
find. However, Respondent has raised
several defense to its conduct, which it argues, justifies its failure to make
timely payments to the Funds.
Its
primary defense, is based upon Cohen’s letter to Kolko, of August 27, 2007, in
which Respondent requested that the
However,
I conclude that Respondent’s defense is without merit, for a number of reasons,
and that
Since
this line of cases is an exception to the Board’s normal “impasse” finding,
before permitting unilateral changes, the employer must comply with the other
requirements of postimpasse implementation, in order to lawfully implement its
proposal. That is the employer’s changes
must be consistent with the employer’s previous proposal to the Union, Tampa Sheet Metal, supra; Stone Boat Yard, 264 NLRB 981, 982
(1983), enfd. 715 F.2d 441 (9th Cir. 1983), cert. denied 466 U.S. 937 (1984),
and the employer may not implement its proposals in the context of serious
unremedied unfair labor practices EIS
Brake-Parts Division of Standard Motor Products, 331 NLRB 1466, 1492
(2000); and Noel Corp., 315 NLRB 905,
911 (1994).
In
applying the above precedent to the instant facts, it is clear that
Respondent’s defense fails and its reliance on AAA Motor Lines, supra; and M
& M Contractors is misplaced.
Here, Respondent requested that the
Therefore,
Respondent cannot rely on the
Accordingly,
I conclude that for this reason alone, Respondent’s defense has no merit, and
it cannot rely on M & M Contractors, supra; AAA Motor Lines, supra.26
Furthermore,
in order to fall within the exception to the requirement of “impasse,” before
implementation, the Employer’s changes must be consistent with the Employer’s
previous proposal to the
In
fact the evidence discloses that Respondent never made any payments to any of the Funds, subsequent to its August 27, 2007
request to bargain.28 Therefore, Respondent rather than
implementing its proposal of extending the period of measuring arrears from one
month to 7 months, decided to implement a policy of making no payments at all
to the Funds, which was a proposal not consistent with or contemplated by
Respondent’s August 27 letter.
Accordingly, I find that this is another reason to reject Respondent’s
defense and its reliance of AAA Motor Lines
and M & M Contractors. See Tampa
Sheet Metal, supra and Stone Boat Yard, supra, distinguishing AAA Motor Lines and M & M
Contractors on this basis.
Finally,
I reject Respondent’s defense in this regard for still another reason. In AAA
Motor Lines, supra, the Board
emphasized that the Employer therein had “diligently and earnestly sought
bargaining sessions with the
I
agree with the General Counsel and the Charging Party, that Respondent has
fallen far short of establishing that it made “diligent and earnest” efforts to
engage in bargaining over its August 27, 2007 proposal. In fact, Respondent did not follow up on its
request, and made no further request of the
No
evidence was presented that Respondent’s proposal was ever brought up during
the bargaining between the parties, which was being conducted contemporaneously
with this letter. Moreover, in letters
sent between the parties, and memos distributed by Respondent to its employees,
in December 2007 and January 2008, it is clear that as of that time, the only
unresolved issue between the parties, concerning the signing of a new contract,
was the identity of the arbitrator, in connection with the contract’s
arbitration clause. It is apparent that
since the expiring contract contained clauses defining timeliness for
arrearages to the Funds, that Respondent had abandoned its proposal to extend
that time to 7 months.29
I
conclude therefore that Respondent did not diligently or earnestly pursue
bargaining over its proposal with the
Therefore,
based on the above analysis and authorities, I reject Respondent’s defense
based on the
Respondent
also raises additional defenses, which also relate to the Respondent’s
presettlement conduct. Essentially, Respondent
argues that the Union has been acting in bad faith in its dealings with
Respondent, by seeking to drive it out of business, and by treating it
differently from how the Union treats other employer’s who contribute to its
Funds. In this regard, Respondent relies
on the presettlement discussions between Cohen and the
Cohen
complained that Respondent was not the only health care institution with
delinquencies, and asked why it was being singled out by having benefits cut
off. Sackman responded that the
Sackman
responded that the
Respondent
also relies on phone conversations between Cohen and Rifkin in late November
2007, after the Benefit Fund again cancelled health coverage for Respondent’s employees
due to Respondent’s failure to remit contributions. Rifkin told Cohen that the
Based
upon these statements, Respondent argues that the Union has acted in bad faith,
by treating Respondent disparately and unfairly, and that the Union intended
“to create a larger rift which it could and did utilize to have the charging
party cut off benefits and provoke a strike which it hoped would make an
example of Kingsbridge by destroying the employer altogether.” Therefore this conduct by the
I
conclude that neither the comments made by the Union’s representatives, nor the
Union’s conduct of cutting off benefits for Respondent’s employees or refusing
to agree to an interim agreement on health benefits, provides any defense to
Respondent’s conduct in making untimely payments to the Funds. With respect to the alleged disparate
treatment of Respondent, by the Union’s cutting off benefits for its employees,
while allowing other Employer’s to build up delinquencies, I find the
This
in view of Respondent’s past conduct, I find that it was reasonable and clearly
lawful, for the Union to insist that Respondent make all prior payments in
order to forestall cutting off benefits, and for the Union to insist on
Respondent signing a contract, rather than an interim agreement, as suggested
by Cohen. I find nothing improper or
illegal in the
The
Board rejected these contentions of the Employers therein, which are similar to
the arguments raised by Respondent here.
The Board observed in language equally applicable to Respondent. “Although here the Respondents argue that
their inability to pay was caused by the Union’s actions, the fact is that GBS’ financial woes were not caused by
the
The
Board further commented that while the
These
observations of the Board in Fallon
Williams, supra, are applicable to Respondent’s conduct here. Respondent, similar to the Employers conduct
in Fallon Williams, failed to comply
with its obligations to make timely payments to the
Respondent’s
reliance on Rifkin’s comments to Cohen in late November 2007, is also
misplaced. While I do not condone some
of Rifkin’s remarks, I do not believe that they provide any defense to
Respondent’s conduct. Notably, these
statements were made in late November 2007, well over a year after Respondent
began its postsettlement conduct of failing to make timely contributions to the
Funds, and over 3 months after Respondent made its last payment to any of the
Funds. Thus, at that time it appears
that Respondent had decided not to make any further payments to the Funds,
which it has not done to date. Moreover,
a close examination of Rifkin’s statements, based on their timing and context,
reveals at least some basis for his position.
Respondent, as I have detailed above, clearly has been, as of November
2007, an Employer who had flagrantly violated its legal obligations. Respondent had violated Section 8(a)(1) and
(5) of the Act by failing to sign a contract (see Resort, supra) to which it was bound, by virtue of its Association
membership. The
Further,
the
Additionally,
Respondent entered into a settlement agreement on June 8, 2006, covering the
prior payments due to the Funds. While
Respondent did make the payments to the Funds agreed upon in the settlement, it
continued its prior unlawful practice of making untimely contributions
thereafter, despite specifically agreeing to make such timely contributions in
the future. Indeed, as I have found
above, Respondent immediately violated its undertakings in the agreement, has
not made a single timely payment, since the settlement was executed, and as of
late November 2007 (when Rifkin made his comments), had not make any payments
at all, for over 3 months.
Therefore,
Rifkin as of November 2007, clearly had substantial justification for
questioning the good faith of Respondent in general, and of Sieger, in
particular, who he appeared to blame, at least in part for Respondent’s past
conduct. Thus, in view of Rifkin’s obvious
justifiable frustration with Respondent and Sieger, it is somewhat
understandable, that he would consider attempting to take “Sieger down,” and
work with the Attorney General to put in a receiver and put her out of
business. I note that this threat, does
not constitute a threat to shut down the business entirely, but merely to
replace Sieger and or Respondent with a receiver to operate the nursing
home. I make no finding as to whether
this action by the
In
that regard, there is no evidence in the record that Respondent’s decision to
cease making payments to the Funds, or indeed to make late payments, was
motivated in any way by Rifkin’s comments.35 I therefore conclude that Rifkin’s comments
described above do not justify Respondent’s failure to comply with its
obligations to make timely payments to the Funds.
Similarly,
Rifkin’s statements to Cohen, in a subsequent conversation, that the Union
would be calling a strike very soon, and the
As
I have detailed above, the
Accordingly,
having rejected all of Respondent’s defenses, and having previously found that
Respondent has failed to make timely payments to the Funds since June 2006,
including failing to make any payments since August 2007, I conclude that by
such conduct Respondent has violated the terms of the settlement agreement that
it executed on June 8, 2006, and that it has violated Section 8(a)(1) and (5)
of the Act.
B.
Presettlement Conduct
Having
found that Respondent violated the terms of the settlement agreement, it then
becomes appropriate to consider its presettlement conduct, as reflected in the
complaint. In that connection, there can
be little dispute, and indeed Respondent in effect so concedes, in executing a
stipulation of facts, that it consistently failed to make timely payments to
the Funds, starting in June 2005. I so
find.
Respondent
offers no defense to this conduct, other than the contentions, previously
rejected in my discussion of Respondent’s postsettlement conduct, that the
Accordingly,
I conclude that Respondent by failing to make timely contributions to the
Funds, from June 2005, through May 2006, has violated Section 8(a)(1) and (5)
of the Act.
Conclusions of Law
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. The
3. The Respondent has violated the terms of the
settlement agreement that it executed on June 8, 2006.
4. Respondent, by failing to make timely
contributions to the Union’s Funds, since June 2005, including failing to make
any contributions to the Funds for various months, including no payments to any
of the Funds, since August 2007, has violated Section 8(a)(1) and (5) of the
Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of the Act.
The Remedy
Having
found that Respondent has engaged in certain unfair labor practices, I shall recommend
that it cease and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
In
addition to recommending that Respondent make timely contributions to the Union
Funds, I shall also recommend that it be ordered to remit all payments that it
owes to the Funds, with interest as provided in Merryweather Optical Co., 240 NLRB 1213 (1979), and to make
employees whole for any expenses they may have incurred as a result of
Respondent’s failure to make such payments, as set forth in Kraft Plumbing & Heating, 252 NLRB
891 (1980), enfd. mem. 661 F2d. 940 (9th Cir. 1981). All make-whole payments to employees shall be
made with interest as provided in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
In
this connection, I note that for some of the months, for which Respondent made
no payments into the Funds, at least some of Respondent’s employees were on
strike.36
It is well established that strikers, whether economic or unfair labor
practice strikers, are not entitled to compensation for the period they are on
strike, and benefits paid to the Union Funds, are considered part of
compensation. Thus, Respondent was not
required to make contributions to any of the Funds, for the time that such
employees were on strike. Titan Tire Co., 333 NLRB 1156, 1165
(2001); Towne Chevrolet, 230 NLRB 479
(1977); Trading Port, Inc., 219 NLRB
298, 299 fn. 2 (1975); Illinois Bell
Telephone Co., 179 NLRB 681 (1969), enfd. 446 F.2d 815 (5th Cir. 1971); General Electric Co., 80 NLRB 510,
511–512 (1948).
Here,
the record is silent as to how many of Respondent’s employees were striking,
and for how long, or whether or not any of the employees were on a leave of
absence during the strike.37 I shall therefore leave to the compliance
stage of this proceeding to determine these issues, in accordance with the
above precedent. I shall also recommend
that since this is the third time that Respondent has been found to have
violated the Act, it has demonstrated a proclivity to violate the Act, and that
a broad order is appropriate. Planned Building Services, 347 NLRB 670,
670, 720 (2006);
On
these findings of fact and conclusions of law, and on the entire record, I
issue the following recommended38
ORDER
The
Respondent, Kingsbridge Heights Rehabilitation and
1. Cease and desist from
(a)
Failing and refusing to make timely contributions to the Greater New York
Benefit Fund, the Greater New York Pension Fund, Greater New York Education
Fund, the Greater New York Job Security Fund, the Greater New York Child Care
Fund, and the Greater New York Workers Participation Fund (collectively called
the Funds), without notifying and bargaining with the 1199 Service Employees
International Union, United Health Care Workers East (the Union).
(b)
In any other manner interfering with, restraining, or coercing employees in 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)
Pay into the
(b)
Make whole any employees for any losses suffered by reason of its unlawful
failure to make payments to the
(c)
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.
(d)
Within 14 days after service by the Region, post at its facility in
(e)
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 and refuse
to make timely contributions to the Greater New York Benefit Fund, the Greater
New York Pension Fund, Greater New York Education Fund, the Greater New York
Job Security Fund, the Greater New York Child Care Fund, and the Greater New
York Workers Participation Fund (collectively called the Funds), without
notifying and bargaining with the 1199 Service Employees International Union, United
Health Care Workers East (the Union).
We will not in any other
manner, interfere with, restrain, or coerce employees in the rights guaranteed
them by Section 7 of the Act.
We will pay those
contributions into the
We will make whole with
interest the unit employees for any losses suffered by reason of our failure to
make timely payments to the
Kingsbridge Heights
Rehabilitation and
1 Effective midnight
December 28, 2007, Members Liebman,
The judge recommended a broad order requiring the Respondent to cease and desist from violating the Act “in any other manner.” We find that a broad order is not warranted under the circumstances of this case, and substitute a narrow order requiring the Respondent to cease and desist from violating the Act “in any like or related manner.” See Hickmott Foods, 242 NLRB 1357 (1979).
We shall modify par. 2(a) of the judge’s recommended Order to
require the Respondent to continue to make the required timely contributions to
the
Chairman
1 The charge was originally filed in Region 2 under Case 2–CA–37367. On March 28, 2006, the General Counsel issued an Order transferring the charge to Region 29 as Case 29–CA–27502.
2 According to the letter, at the time Respondent was 4 months in arrears in making payments to the Union’s benefit, pension, and education funds and 37 months behind in payments to the child care and job-security funds. The total amounts owed to the funds were $854,542 with accrued interest of $59, 337.
3 Nortey Testified herein, Sackman and Shillingford did not.
4 The
5 As counsel for Respondent noted during the development of this evidence, I had previously been assigned to serve as a settlement judge in this matter. The parties were asked if they had any objection to my continuing to hear the instant case. No party voiced an objection.
6 The settlement provided for, among other things, a schedule for Respondent to make payments to the union funds in order to become current as well as an undertaking that Respondent would make future payments on a timely basis and post a notice to employees.
7 As a result of this settlement, the General Counsel requested that the complaint be dismissed.
8 Some of the classifications covered are certified nursing aides, dietary aides, and housekeeping employees.
9 Although the collective-bargaining agreement had expired, the parties stipulated that Respondent’s obligation to make timely contributions to the Funds, continues notwithstanding the fact that the contract has expired.
10 Cohen was also speaking on behalf of Resort Nursing Home at the time.
11 Referring to Respondent and Resort.
12 In fact Sackman gave Cohen a list of 20–25 other nursing homes that were in serious arrearages to the Funds.
13 These payments were due on March 10, April 10, and May 10, 2006, respectively.
14 Note that during bargaining, Respondent had taken the position that it no longer wished to be obligated to make contributions to the Child Care Fund.
15 It made a payment June 2, 2006, to the Benefit Fund, covering the month of May 2006, which was not due until June 10, 2006.
16 Respondent also made its back payments to the Child Care Fund, Job Security Fund, and Workers Participation Fund with checks date November 27, 2006, credited by these Funds on November 28, 2006, for the period of May 2005 through May 2006.
17 However
this amount was based on calculations under a raised rate of contributions,
which the Fund believed to be owed.
However, the General Counsel does not agree with the
18 My findings with respect to the date of receipt of the checks is based on the date stamps appearing on the checks, which Anthony Cretella, an official of the Funds, credibly testified is generally done on the date the checks are received or the next business day.
19 This finding again is based on the date stamps on these checks.
20 I note that July 27, 2007, was a Friday. Thus, consistent with Petrella’s credited testimony, Respondent’s account was credited with these checks on the next business day, after their receipt, Monday, July 30, 2007.
21 Based again on the date stamps on these checks, as well as on Petrella’s credited testimony.
22 The above findings are based upon the undenied and credited testimony of Cohen. Rifkin did not testify.
23 In between these dates, Respondent’s attorney ceased representing it, and a second attorney, initially retained to represent it, also withdrew from representation.
24 It is undisputed that Respondent made the back payments to the Funds as specified in the settlement.
25 Contributions due by January 2, 2007, for the month of December 2006. While the Respondent made payments to the Benefit Fund for the month of November 2006, which were due by December 10, 2006, it made no payments to any of the other Funds for this month.
26 I note in that both M & M Contractors; and AAA Motor Lines, there was no evidence that either employer had engaged in any unfair labor practices, prior to their implementation of their proposals.
27 Cf. AAA Motor Lines and M & M Contractors where both Employer’s
provided specific notice to the
28 The last payment made by Respondent to the Funds was made on August 8, 2007, which covered the month of May 2007, and which was due on June 10, 2007.
29 There is no indication in any of the letters or memos that the issue of when payments are to be deemed late, was still in issue.
30 The record is unclear as to precisely when these payments (which totaled $500,000) were actually made by Respondent. But it is stipulated that the Respondent did make the payment of $500,000 to the Funds.
31
Interestingly, Respondent also argues, that since it made the payments based on
this award, the
32 The ALJ’s decision issued in July 2007.
33 The contemplated strike was canceled, because Respondent, sometime prior to May 15, 2006 had agreed to make payments to the Funds.
34 I emphasize again, that Respondent had not made any payments to the Funds since August 9, 2007.
35 Sieger did not testify in this proceeding.
36 The record reflects that a strike commenced on February 20, 2008, and was continuing at the time the trial closed on May 1, 2008.
37 If so, such employees would be entitled to contributions on their behalf, as well as a make-whole remedy, since they were not on strike. Titian Tire, supra.
38 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.
39 If this
Order is enforced by a judgment of a