Anna Erika Home for Adults

National Labor Relations Board - Board Decisions

Jun 7, 1991

303 N.L.R.B. 301 (N.L.R.B. 1991)

301
303 NLRB No. 40
ANNA ERIKA HOME FOR ADULTS
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
We correct three inconsequential errors in the judge’s decision: (1) The last
year referred to in part II, par. 1, should be 1989, not 1986. (2) As the judge
stated in fn. 2, the ‘‘open period’’ for filing timely representation petitions by
rival unions normally is from 90 to 60 days prior to the expiration date of
an existing contract. However, the authority for that statement is not Deluxe
Metal Furniture Co., 121 NLRB 995 (1958), but Leonard Wholesale Meats,
136 NLRB 1000, 1001 (1962), which superseded Deluxe Metal Furniture in
this regard. Moreover, in the case of health care institutions such as the Re-
spondent, see Anna Erika Home for Adults, 301 NLRB No. 100, slip op. at
3 (Feb. 14, 1991) (not reported in Board volumes), the ‘‘open period’’ is from
120 to 90 days prior to the expiration of the contract. Trinity Lutheran Hos-
pital, 218 NLRB 199 (1975). (3) The judge described the Respondent’s facility
as located in Brooklyn, New York. The facility is located in Staten Island.
2 RCA Del Caribe, Inc., 262 NLRB 963 (1982).
3 The judge also recommended dismissal of the complaint allegation that the
Respondent failed and refused to make monthly payments into District 6’s
welfare fund as required by the contract. No exceptions were filed concerning
that recommendation.
4 Perry testified that he learned of the problems from one Guy Perry, who
‘‘used to cover the place and he reported it to me.’’
5 Had Sirangelo harbored any such doubt, he presumably would have voiced
it. In addition, he could have demanded to talk to Pagenucci, the shop steward,
who would have been in a better position to know the details of outstanding
grievances. On this record, he did neither.
6 In any event, Perry testified that he and Sirangelo had a practice of dealing
with grievances over the telephone and in meetings in a diner, rather than in
writing.
7 Bethlehem Steel Co., 136 NLRB 1500, 1502–1503 (1962), enfd. in relevant
part sub nom. Shipbuilders v. NLRB, 320 F.2d 615 (3d Cir. 1963).
Joseph F. Sirangelo, Vincent Sirangelo, Phillip
Emma, Angelo Servideo and Joseph Cillo d/b/a
Anna Erika Home for Adults and District 6,
International Union of Industrial, Service,
Transport and Health Employees. Case 29–CA–
14058
June 7, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On September 26, 1990, Administrative Law Judge
Raymond P. Green issued the attached decision. The
General Counsel and the Respondent filed exceptions
and supporting briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found, and we agree, that the Respondent
violated Section 8(a)(5) and (1) of the Act by refusing
to meet and negotiate with District 6, the incumbent
Union, concerning the terms of a new contract after
Local 1115, Nursing Home and Hospital Employees’
Union, filed a representation petition.2 However, the
judge recommended dismissal of the complaint allega-
tion that the Respondent also violated Section 8(a)(5)
and (1) by refusing to meet to discuss grievances un-
less District 6 agreed to continue in effect all the terms
of the existing contract between the parties.3 The Gen-
eral Counsel excepts, and we find merit to the excep-
tions.
The only witness to testify at the hearing was Wil-
liam Perry, the president of District 6. Perry testified
that in early 1989, he asked Vincent Sirangelo, the Re-
spondent’s principal owner/operator, to meet to discuss
terms of a new contract and to settle various griev-
ances. Perry testified that the grievances, some of
which had been reported to District 6 by its shop stew-
ard, Ms. Pagenucci, concerned the Respondent’s re-
fusal to pay employees their vacation pay before they
went on vacation, its failure to pay overtime, and the
fact that some employees had complained that they had
not received cards showing that they had medical ben-
efit coverage. Sirangelo, however, refused to meet with
District 6 unless Perry agreed to sign a contract with
no changes at all from the terms of the parties’ exist-
ing agreement.
The judge, as we have noted, recommended dis-
missal of the complaint allegation concerning the Re-
spondent’s refusal to discuss grievances. He found that
the evidence failed to describe adequately the griev-
ances in question, and that there was little or no com-
petent evidence that the grievances even existed. He
apparently relied in part on the failure of District 6 to
present evidence that grievances over the subjects
mentioned above had ever been filed, and also on the
fact that the shop steward had not been called to tes-
tify.
Contrary to the judge, we find that Perry, in his tes-
timony summarized above, adequately—indeed, explic-
itly—described the nature of the grievances District 6
wished to discuss with Sirangelo. And although Perry,
who apparently was not in a position to have firsthand
knowledge of the problems at the Respondent’s facil-
ity,4 may not have been technically ‘‘competent’’ to
testify regarding the alleged grievances, the Respond-
ent’s refusal to discuss grievances was not based on
any asserted doubt that grievances actually existed.5
Nor was it grounded in District 6’s failure to file for-
mal grievances.6 Rather, it was based on Perry’s re-
fusal to capitulate to the Respondent’s bargaining de-
mands.
It is well settled that grievance procedures are man-
datory bargaining subjects that may not be unilaterally
modified or abrogated by an employer.7 And an em-
ployer’s statutory obligation to bargain with an incum-
bent union is not removed merely because another
302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 RCA Del Caribe, Inc., supra, 262 NLRB at 965.
9 Airport Aviation Services, 292 NLRB 823 (1989). The Board adopted this
finding of the administrative law judge in the absence of exceptions. Id. at
fn. 4. We place our imprimatur on it here.
Nor did the expiration of the contract on June 30, 1989, relieve the Re-
spondent of its obligation to honor the grievance procedure. White Oak Coal
Co., 295 NLRB 567 (1989).
10 Since the events in this case transpired, Local 1115 has been certified as
the representative of employees in the bargaining unit. See Anna Erika Home
for Adults, supra. Because of the change in representatives, we shall order the
Respondent only to cease and desist from further violations. Our decision not
to require an affirmative remedy concerning discussion of grievances, how-
ever, does not prevent employees from pursuing unresolved earlier grievances
through the current bargaining representative. See Arizona Portland Cement
Co., 302 NLRB 36, 37 (1991).
labor organization has filed a representation petition.8
Thus, an employer may not unilaterally abrogate the
contractual grievance procedure merely because it is
faced with a petition from a rival union.9 Accordingly,
by refusing to bargain over grievances unless District
6 agreed to its contract demands, the Respondent vio-
lated Section 8(a)(5) and (1) of the Act.10
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents, Jo-
seph F. Sirangelo, Vincent Sirangelo, Phillip Emma,
Angelo Servideo and Joseph Cillo d/b/a Anna Erika
Home for Adults, Staten Island, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 1(b) and reletter
the subsequent paragraphs.
‘‘(b) Conditioning bargaining over grievances with
any such labor organization on the acceptance by that
labor organization of the Respondent’s contract de-
mands.’’
2. Substitute the following for paragraph 1(c) and
reletter the last paragraph as 2(b).
‘‘2. Take the following affirmative action necessary
to effectuate the policies of the Act.
‘‘(a) Post at its facility in Staten Island, New York,
copies of the attached notice marked ‘‘Appendix.’’6
Copies of the notice, on forms provided by the Re-
gional Director for Region 29, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain with any labor orga-
nization with whom we have a lawful obligation to
bargain under the provisions of the National Labor Re-
lations Act.
WE WILL NOT condition bargaining over grievances
with any such labor organization on the acceptance by
that labor organization of our contract demands.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
JOSEPH F. SIRANGELO, VINCENT
SIRANGELO, PHILLIP EMMA, ANGELO
SERVIDEO AND JOSEPH CILLO D/B/A
ANNA ERIKA HOME FOR ADULTS
Elizebeth Orfan, Esq., for the General Counsel.
Steven B. Horowitz, Esq. (Horowitz & Pollack P.C.), for the
Respondent.
Jonathan Walters, Esq. (Walters, Willig, & William), for the
Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York, New York, on June 8, 1990. The
charge was filed on April 26, 1989, and the complaint was
issued on June 9, 1989. In substance the complaint alleged:
1. That since 1986 the Union (District 6), has been the
recognized bargaining agent for certain of the Respondent’s
employees and that the last contract between these parties ran
from 1986 to 1989.
2. That another labor organization, Local 1115 Nursing
Home and Hospital Employees’ Union, filed on January 9,
1988, and March 3, 1989, representation petitions requesting
an election in the unit represented by District 6.
303ANNA ERIKA HOME FOR ADULTS
1 The General Counsel contends that the Respondent is obligated to make
payments to the welfare fund notwithstanding the expiration of its contract
with District 6. She concedes, however, that such payments should not be re-
quired after October 27, 1989, which is the date that Local 1115 was certified
in place of District 6 as the bargaining representative of the employees in
question.
2 Under Board rules, a rival union which seeks to represent a unit of em-
ployees, is generally required to file its petition within 90 to 60 days prior
to the expiration date of the existing collective-bargaining agreement, or after
expiration if no new contract has been entered into. Deluxe Metal Furniture
Co., 121 NLRB 995 (1958).
3 Local 1115 won that election notwithstanding the Employer’s unfair labor
practices designed to induce employees to vote against that labor organization.
Thus, in a prior decision reported at 298 NLRB 924 (1990), the Respondent
was held to have violated Sec. 8(a)(1) and (3) of the Act by various actions
including the discharge of supporters for Local 1115.
3. That since February 9, 1989, the Respondent has failed
and refused to bargain with District 6 concerning that
Union’s request for a successor contract.
4. That since February 1989, the Respondent has failed
and refused to make monthly payments to the District 6 wel-
fare fund as required by the aforesaid collective-bargaining
agreement.1
5. That since March 15, 1989, the Respondent has refused
to bargain with District 6 regarding individual grievances
having arisen under the terms of the previous collective-bar-
gaining agreement and has conditioned meeting with District
6 on that Union’s willingness to continue in effect all the
terms and conditions of the expired contract.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that District 6 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
District 6 for about 10 years was recognized by the Re-
spondent as the bargaining agent of certain of its employees.
A collective-bargaining agreement covering such employees
was executed with a term from May 5, 1986, to November
30, 1989. However, on May 7, 1986, a memorandum of un-
derstanding was executed which changed the term of the
agreement from July 1, 1986, to June 30, 1989.
Under the terms of the agreement, the Employer was obli-
gated to contribute $36 per month to the Union’s welfare
fund on behalf of employees employed for more than 5
years. For employees employed more than 2 years the re-
quired contribution was $28 per month. The agreement also
provided for a grievance procedure which culminated in
binding arbitration.
Because of the change in contract expiration dates noted
above, Local 1115 filed two separate petitions with the
Board’s Regional Office so as to make certain that a petition
was timely filed within the 90- to 60-day period.2 These peti-
tions were filed respectively on January 9, 1989, and March
3, 1989. Subsequently, on September 7, 1989, Local 1115
won an election by an overwhelming majority.3
On February 9, 1989, District 6’s president, William Perry,
wrote to the Respondent requesting negotiations. In his letter,
was a group of contract demands.
Perry contends that between February 9 and March 15 he
had a number of telephone conversations with Vincent
Sirangelo wherein the latter claimed that the Union’s de-
mands were too high. Perry claims that Sirangelo asserted
that he had spoken to Local 1115, that they had offered him
a better deal and, that unless District 6 lowered its demands,
he was not wasting his time in meetings. According to Perry,
Sirangelo stated that the Company would be willing to sign
a new contract if it maintained the status quo regarding
wages and benefits.
On March 15, 1989, District 6 sent another letter to the
Company requesting negotiations.
According to Perry, on March 20 he phoned Sirangelo
who said that he did not want to meet with District 6 unless
it was agreed that any new contract would not have any
wage increases or other changes. Perry also states that during
this conversation he told Sirangelo that he wanted to meet
regarding some problems raised by the shop steward but that
Sirangelo refused. (According to Perry, the shop steward had
raised with him a problem regarding vacations and had also
reported that some employees claimed that they had not re-
ceived medical cards. The evidence, however, does not show
that District 6 ever filed any grievances relating to these al-
leged problems and Pagenucci, the shop steward, was not
called to testify as to the existence of these problems.) On
March 20, 1989, Perry wrote to Sirangelo protesting the
latter’s refusal to meet.
According to Perry, he met with Sirangelo at a diner dur-
ing the week of April 18, 1989. He states that Sirangelo re-
fused to discuss anything about a contract or about griev-
ances unless District 6 signed a contract with no increases.
Perry testified that with respect to welfare fund payments,
the past practice was that the Employer accompanied its
monthly checks with a list of the employees on whose behalf
the payments were made. He testified that he thought that
sometime in 1988 or 1989 the Respondent ceased furnishing
the lists. While he initially asserted that in the beginning of
1989 the Company ceased making contributions to the wel-
fare fund, Perry acknowledged that checks were in fact re-
ceived and cashed. It appears that Perry’s contention is that
without the lists, he was in no position to know whether the
payments accurately reflected the amounts properly due
under the terms of the collective-bargaining agreement. Dis-
trict 6, however, never invoked the grievance-arbitration pro-
visions of its contract either to compel the Company to make
such payments or to ascertain which employees were entitled
to the medical benefit payments. Further, there is no conten-
tion in this case that the Respondent illegally refused to sup-
ply relevant information to the Union.
While the complaint alleges that the Respondent failed to
make payments to District 6’s welfare fund, the parties stipu-
lated that from February 9, 1989, through April 9, 1990, the
Respondent sent monthly checks to the Union’s fund in
amounts ranging from $461.35 to $328.28. There was no evi-
dence that commencing in February 1990 the amounts of the
payments were reduced from what they had previously been.
Neither the Union nor the General Counsel subpoenaed any
company records (such as payroll records), to show that the
amounts of the payments were not consistent with the num-
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 In my opinion, the Charging Party’s reliance on Detroit Cabinet & Door
Co., 247 NLRB 1415 (1980), is misplaced. Although a Board majority found
that the Respondent violated Sec. 8(a)(5) of the Act by delinquent fund pay-
ments and by its failure to permit an audit, those facts were not in dispute
as the Respondent had failed to file an answer to the complaint.
5 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 objec-
tions to them shall be deemed waived for all purposes.
6 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
ber of employees who were eligible for this benefit. No evi-
dence was presented by the General Counsel or the Union
to establish that any employee had medical benefits denied
by virtue of the alleged failure to contribute to the fund. Fi-
nally, there was no other evidence adduced to prove the al-
leged failure to make welfare fund contributions.
III. DISCUSSION
In RCA Del Caribe, Inc., 262 NLRB 963, 965 (l982), the
Board stated:
[W]e have determined that the mere filing of a rep-
resentation petition by an outside, challenging union
will no longer require or permit an employer to with-
draw from bargaining or executing a contract with an
incumbent union. Under this rule, an employer will not
violate Section 8(a)(2) by postpetition negotiations or
execution of a contract with an incumbent, but an em-
ployer will violate Section 8(a)(5) by withdrawing from
bargaining based solely on the fact that a petition has
been filed by an outside union.
This new approach affords maximum protection to
the complementary statutory policies of furthering sta-
bility in industrial relations and of insuring employee
free choice. It should be clear that our new rule does
not have the effect of insulating incumbent unions from
a legitimate outside challenge. As before, a timely filed
petition will put an incumbent to the test of dem-
onstrating that it still is the majority choice. . . . Un-
like before, however, even though a valid petition has
been filed, an incumbent will retain its earned right to
demonstrate ifs effectiveness as a representative at the
bargaining table. . . .
[I]f the incumbent prevails in the election held, any
contract executed with the incumbent will be valid and
binding. If the challenging union prevails, however, any
contract executed with the incumbent will be null and
void. [Citations omitted.]
In the present case, the evidence shows that after Local
1115 filed its petition for an election, the Respondent, in ef-
fect, refused to meet and negotiate with District 6, the in-
cumbent Union, for terms of a new contract. As such, it is
concluded that in this respect, the Respondent violated Sec-
tion 8(a)(1) and (5) of the Act.
While it is asserted that the Respondent refused to meet
and discuss certain grievances, the evidence failed to ade-
quately ascertain what grievances the Union wished to have
presented. The testimony as to the nature of these alleged
grievances was vague and indeterminate and there was little
or no competent evidence that such ‘‘grievances’’ even ex-
isted. In this regard, I recommend that the complaint be dis-
missed.
I shall also recommend dismissal of the allegation that the
Respondent failed to make contractually required payments
to District 6’s welfare fund. In this regard, the evidence did
not establish that the Respondent had either failed or been
delinquent in making such payments. The record disclosed
that since February 1989 and through April 1990, the Re-
spondent made monthly payments to the Union’s welfare
fund. The General Counsel or the Charging Party could have
subpoenaed payroll and other records to show that the num-
ber of employees eligible for welfare fund benefits would
have required payments in amounts above the amounts actu-
ally paid. They also might have shown that the payments
after February 9 were significantly different than monthly
payments prior to that date. In short, it is my opinion that
the allegation requires some proof beyond a mere assertion.4
CONCLUSION OF LAW
By failing and refusing to meet with District 6, Inter-
national Union of Industrial, Service, Transport and Health
Employees during the pendency of a representation petition,
the Respondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(1) and (5)
and Section 2(6) and (7) of the Act.
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. However, inasmuch as Dis-
trict 6 has been supplanted pursuant to a Board-conducted
election by Local 1115, no bargaining order on behalf of
District 6 would be appropriate.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondents, Joseph F. Sirangelo, Vincent Sirangelo,
Phillip Emma, Angelo Servideo and Joseph Cillo d/b/a Anna
Erika Home for Adults, its Brooklyn, New York, officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with any labor organization with
whom it has a lawful obligation to bargain under the provi-
sions of the National Labor Relations Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
(c) Post at its facility in Brooklyn, New York, copies of
the attached notice marked ‘‘Appendix.’’6 Copies of the no-
tice, on forms provided by the Regional Director for Region
22, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
305ANNA ERIKA HOME FOR ADULTS
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.