Flatbush Manor Care Center

National Labor Relations Board - Board Decisions

Sep 29, 1994

315 N.L.R.B. 15 (N.L.R.B. 1994)

15
315 NLRB No. 8
FLATBUSH MANOR CARE CENTER
1 No exceptions were filed to the judge’s findings that the Re-
spondents violated Sec. 8(a)(5) and (1) by failing to make contrac-
tually required contributions to the Union’s legal services fund and
welfare trust fund, and by failing to provide information requested
by the Union.
The Respondents excepted to the judge’s conclusion that they vio-
lated Sec. 8(a)(5) and (1) by failing to make lump-sum bonus pay-
ments to certain bargaining unit employees, as mandated by the par-
ties’ January 5, 1988 memorandum of agreement. The judge found,
and we agree, that certain preliminary language in the parties’ subse-
quent March 16, 1990 memorandum of agreement did not constitute
a clear and unmistakable waiver of the Union’s statutory right with
respect to the contractual bonus payments. The Respondents, citing,
e.g., NCR Corp., 271 NLRB 1212 (1984), contend that they had a
‘‘sound arguable basis’’ for an interpretation of the relevant lan-
guage of the March 16, 1990 memorandum canceling, or settling, the
bonus obligation set forth in the earlier memorandum agreement, and
that this is sufficient to mandate dismissal of the unfair labor prac-
tice allegation. We find NCR inapplicable here. It concerned a dis-
pute that was ‘‘solely one of contract interpretation.’’ The present
case, in contrast, concerns an employer’s refusal to make payments
that had indisputably accrued under a collective-bargaining agree-
ment—a failure that would ordinarily constitute a violation of Secs.
8(a)(5) and (1) and 8(d) of the Act. Nick Robilotto, Inc., 292 NLRB
1279 (1989). The issue is whether the parties settled that past obliga-
tion in the context of a contract reopening, and the judge applied
an appropriate standard in deciding that issue.
1 The name of the Charging Party has been corrected in accord-
ance with its motion made and granted without objection at the hear-
ing.
2 On motion made by the Charging Union at opening of hearing
to withdraw those portions of charge in the consolidated proceeding,
on the basis of which par. 15 was included in the consolidated com-
plaint, alleging physical assaults and threat to deny access to the
Brooklyn facility, to a named union agent in violation of Sec. 8(a)(1)
of the Act, and counsel for General Counsel having indicated the
motion was acceptable to him, I ordered par. 15 withdrawn from the
complaint.
Flatbush Manor Care Center and Fair Manage-
ment Consulting Corp. and 1115 Nursing
Home and Service Employees Union, Division
of 1115 District Council, AFL–CIO. Cases 29–
CA–14844, 29–CA–15253, and 29–CA–15376
September 29, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On May 4, 1994, Administrative Law Judge Robert
T. Snyder issued the attached decision. The Respond-
ents filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the judge’s
decision.
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 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Flatbush Manor Care
Center and Fair Management Consulting Corporation,
Brooklyn, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Saundra Rattner, Esq., for the General Counsel.
Elliot Mandel, Esq. (Kaufman, Naness, Schneider
Rosensweig, P.C.), for Respondent Fair Management Con-
sulting Corp.
Jeffrey D. Buss, Esq. (Smith, Buss and Jacobs), for Respond-
ent Flatbush Manor Care Center.
Stuart Weinberger, Esq. (Richard Greenspan, P.C.), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This case1
was tried before me on July 19, 1993, in Brooklyn, New
York. The consolidated complaint alleges that the Respond-
ents are a single-integrated enterprise and a single employer
within the meaning of the Act, that during the period that
Charging Union, 1115 Nursing Home and Service Employees
Union, Division of 1115 District Council, AFL–CIO (the
Union or Local 1115) was the designated exclusive collec-
tive-bargaining representative of its employees in an appro-
priate unit, Respondents failed and refused to make contrac-
tually requested lump-sum bonus payments to certain unit
employees, to remit contractually required contributions to
the Union’s Welfare Trust Fund and Prepaid Legal Service
Care Fund, to permit an audit of its books and records, and
to furnish the Union with certain information requested by it,
all in violation of Section 8(a)(1) and (5) of the Act.2
Respondents filed answers denying many of the sub-
stantive and conclusionary allegations of the consolidated
complaint, subsequently agreeing at the outset of hearing to
admit to many allegations but continuing to deny the para-
graphs alleging that they committed any violations of the
Act.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. General Counsel
filed a posthearing letter brief. All arguments made at hear-
ing and in the posthearing brief have been carefully consid-
ered. On the entire record in the case, including my observa-
tion of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent Flatbush Manor Care Center (Respondent
Flatbush or Flatbush), a partnership, with its office and place
of business located at 2107 Ditmas Avenue, in the Borough
of Brooklyn, city and State of New York (the Brooklyn facil-
ity), has at all times material here been the licensed operator
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 This second memorandum of agreement was erroneously de-
scribed in the consolidated complaint as admitted by Respondents as
having been dated March 6, 1990.
of a nursing home, providing health care services and related
services. Respondent Fair Management Consulting Corp.
(Respondent Fair or Fair), a New York corporation, with its
principal office and place of business also located at 2107
Ditmas Avenue, in the Borough of Brooklyn, city and State
of New York (the Brooklyn facility), has at all times material
been engaged in the business of providing employee staffing,
payroll, and other related services to Respondent Flatbush.
During 1992, a period representative of their annual oper-
ations generally, Respondents Flatbush and Fair, in the
course and conduct of their business operations, derived
gross revenues in excess of $100,000, Respondent Flatbush
purchased and received at its Brooklyn facility medical sup-
plies and other products, goods, and materials valued in ex-
cess of $50,000 directly from other enterprises located out-
side the State of New York, and Respondent Fair purchased
and received at its Brooklyn facility goods and materials val-
ued in excess of $5000 directly from other enterprises lo-
cated outside the State of New York. The Respondents
admit, and I find, that they are employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act, and health care institutions within the meaning of Sec-
tion 2(14) of the Act.
As earlier noted, the consolidated complaint alleges that
the Respondents have been affiliated business enterprises
with common officers, owners, directors, management, and
supervision, and that by virtue of their business operations
described above constitute a single-integrated business enter-
prise and a single employer within the meaning of the Act.
The Respondents joined the General Counsel and the Charg-
ing Party in a stipulation providing that whatever the court
of final jurisdiction determines in Case 29–RC–7764 on the
issue of single employer will be binding on them. In that
representation proceeding, on February 11, 1992, the Re-
gional Director issued a Decision and Direction of Election
finding, inter alia, that Flatbush and Fair were a single-inte-
grated enterprise and a single employer within the meaning
of the Act. In a Supplemental Decision on Objections and
Certification of Representative, dated August 5, 1992, in the
same case, Regional Director Alvin Blyer dismissed various
timely objections filed by various parties including the
Charging Union here, to conduct affecting the results of the
election held pursuant to his direction of election on March
12, 1992, and certified that a majority of the valid ballots
had been cast for Local 1199, Drug, Hospital and Health
Care Employees Union, and this labor organization was the
exclusive collective-bargaining representative of all full-time
and regular part-time employees employed by Flatbush and
Fair at their Brooklyn, New York location, with various
named exclusions.
Requests for review of the Regional Director’s Supple-
mental Decision on Objections and Certification of Rep-
resentative were filed by Flatbush, Fair, Intervenors Local
1115 and District 6, International Union of Industrial, Serv-
ice, Transport and Health Employees, raising, among other
matters, objections to the Regional Director’s finding of sin-
gle employer status for Flatbush and Fair. In an Order dated
August 19, 1993, the Board denied the requests for review
as they raised no substantial issues warranting review. In ac-
cordance with the parties’ stipulation, and on the basis of the
Regional Director’s determination, now approved by the
Board, I find and conclude that Flatbush and Fair constitute
a single-integrated business enterprise and a single employer
within the meaning of the Act.
Respondents also admit, and I also find, that the Charging
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondents have admitted, as fact, certain complaint
allegations. The following reflects these admissions as sup-
plemented by various other facts undisputed in the record or
as stipulated by the parties.
At all times material, until on or about January 3, 1991,
all employees employed at Respondents’ Brooklyn facility,
excluding registered nurses, confidential, office and clerical
employees, supervisors, watchmen and guards constituted a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
From on or about January 1982, until on or about January
3, 1991, Local 1115 was the designated and recognized ex-
clusive collective-bargaining representative of the employees
in this unit. Such recognition was embodied in successive
collective-bargaining agreements, the most recent of which
was effective by its terms for the period January 5, 1988,
through January 4, 1991, and consists of a collective-bargain-
ing agreement for the period from January 5, 1985, through
January 4, 1988, as modified by a memorandum of agree-
ment effective from January 5, 1988, through January 4,
1991, and a second memorandum of agreement dated March
16, 1990.3
The collective-bargaining agreement described above, as
modified by the memorandum of agreement effective from
January 5, 1988, through January 4, 1991, contains, inter
alia, a provision requiring Respondents to make lump-sum
bonus payments on March 1, 1990, to their blue collar em-
ployees in the bargaining unit described who were employed
by Respondents during the period from October 29, 1989,
through February 28, 1990. The lump-sum payment for full-
time employees is described as being equal to $7.50 per
week for each full week worked between the dates described.
Part-timers shall receive a pro rata amount. It is also noted
that, these lump-sum payments shall not be part of a blue
collar employee’s base salary. This memorandum also pro-
vided for a limited reopening for the year commencing Janu-
ary 5, 1990, through January 4, 1991, except with regard to
the Respondents’ contributions to the Union Welfare Fund.
In the second memorandum of agreement dated March 16,
1990, among other preliminary paragraphs, the parties agreed
to the following language:
WHEREAS, the parties agree that the underlying col-
lective bargaining agreement as modified by the pre-
vious Memorandum of Understanding (consisting of 4
pages with 6 paragraphs) survives, and is incorporated
herein unless modified below; and the parties agree that
this Agreement satisfies all previous obligations arising
under the parties previous collective bargaining agree-
ments.
17FLATBUSH MANOR CARE CENTER
In the body of the second memorandum of agreement
itself the parties agree to modify various paragraphs of the
earlier memorandum of agreement to provide for wage in-
creases on February 28, September 28, and December 28,
1990, for Blue Collar employees and LPNs (licensed prac-
tical nurses); increases in employer contributions to the Local
1115 Employees Union Welfare Trust Fund on the same
dates; and to add July Fourth as a paid employee holiday ef-
fective July 4, 1990.
The parties agree that since on or about March 1, 1990,
and continuing to date, Respondents have failed and refused
to make the contractually required lump-sum bonus pay-
ments.
With respect to the Union’s Welfare Trust Fund and Pre-
paid Legal Service Care Fund, the Respondents’ obligations
to make contributions thereto appear in article 10 of the par-
ties’ 1982 collective-bargaining agreement, and continued
thereafter in all subsequent agreements and memorandum
agreements, through January 3, 1991. Also set forth in the
original 1982 agreement and continued thereafter under all
memorandum agreements through January 3, 1991, is a right
of both the Union and the funds to examine the Employer’s
books and records for the purpose of determining whether
the Employer has complied with the provisions of the con-
tract article mandating contributions to the benefit funds.
Likewise, the original agreement contained an obligation by
the Employer under the union-shop clause which was con-
tinuously renewed, to give the Union a list containing the
names and home addresses of employees covered by the
agreement with category, wages, and dates of hire, and there-
after promptly furnish updates. By the second memorandum
of agreement dated March 16, 1990, Respondents’ obliga-
tions to make contributions to the Union’s Welfare Trust
Fund had increased by $15 per month from $135 to $150 a
month effective February 28, 1990, with another increase of
$5 per month effective September 28, 1990, and an increase
of $10 per month effective December 28, 1990. The con-
tribution rate required under the Union’s Prepaid Legal Serv-
ice Care Fund was originally set at $5 per month for each
covered employee, with the proviso that effective with the
payment of additions to the Welfare Trust Fund there shall
be $2-per-month increases in the Prepaid Legal Fund con-
tributions.
It appears that commencing with on or about April 1,
1990, when the Welfare Fund contribution rate increased to
$150 per month per covered employee, until August 31,
1990, Respondents continued to make monthly payments at
the old, $135-per-month rate, and then from September 1,
1990, until the expiration of the last agreement on January
3, 1991, Respondents ceased making any payments to this
fund altogether. Commencing on or about September 1,
1990, and until January 3, 1991, Respondents also failed and
refused to remit any contractually required contributions to
the 1115 Prepaid Legal Services Care Fund.
By various communications and letters the Union made
demand of Respondents that the lump-sum payment as well
as the delinquencies in contributions to the Welfare Trust
Fund and Prepaid Legal Service Care Fund be satisfied.
By mailgram dated April 12, 1990, Raul Aldrich, sec-
retary-treasurer of the Union, advised David Oberlander, as-
sistant administrator of Respondent Fair that ‘‘you have not
complied with the Agreement to pay the bonus on March 1,
1990 as required. If this payment is not made immediately,
we shall take immediate and appropriate action to enforce
compliance.’’ By letter reply dated April 25, Arthur Kauf-
man of the law firm representing Respondents in this pro-
ceeding wrote, ‘‘Please be advised that it is my clients’ posi-
tion that the most recent collective-bargaining agreement,
agreed upon in February, 1990, modified the previous agree-
ment, and eliminated the lump sum agreement which you
claim is due now.’’ In a letter dated May 2, 1990, Richard
Greenspan, the attorney for the Union, replied to Kaufman,
disputing his rejection of the lump-sum obligation. He wrote:
Your clients’ position that the recent agreement modi-
fied the previous agreement and eliminated the lump
sum payment is erroneous. Monies represented by that
lump sum payment were earned prior to the effective
date of the extension and, moreover, was due to em-
ployees and required to be paid prior to execution of
the extension agreement. Demand is renewed for imme-
diate payment of the lump sum monies due to bargain-
ing unit employees.
In a May 3, 1990 memorandum to employees dealing with
the Union’s claim of failure to pay the bonus, the Respond-
ents characterize the Union’s position in the negotiations
leading to the March 16, 1990 memorandum of agreement as
one in which the Union made clear that their primary objec-
tive was to obtain a higher monthly payment to its funds, in
lieu of any increased benefits to employees. There are no bo-
nuses provided in the March 16 agreement. In this memoran-
dum, Respondents offer to give the disputed bonus within 3
working days if the Union agrees they will waive any in-
creases in their own welfare fund for the calendar year 1990
over 1989. In a subsequent letter dated July 2, 1990, ad-
dressed to Lawrence C. Schoen, Esq., Respondent Flatbush’s
then receiver appointed by order of the New York State Su-
preme Court, Kings County, since removed by the Court,
Greenspan pressed the employees’ claim to the lump-sum
amount, asserting that the employer’s representatives were
seeking to avoid payment of a wage adjustment rightfully
due them, as well as having become delinquent in its obliga-
tions to the fringe benefit funds, and asking for Schoen’s
intervention under his then authority.
With respect to the owed fund contributions, by letter
dated April 23, 1990, the Welfare Trust Fund Comptroller
Ronald Germana informed Arthur Boden, Flatbush adminis-
trator, of a $1290 shortage for March in the fund due to
Flatbush’s not having paid the rate increase of $15 per
month. In a subsequent letter dated May 2, Germana de-
manded payment of $2595 representing April and March de-
linquencies. Although Respondent later remitted the March
delinquency it continued to make payments of contributions
at the old $135 rate. Thus, in a November 16, 1990 letter
to Boden, the Welfare Trust Fund’s systems coordinator,
Robert Evans, requested payment of $6000 for the months of
April through August 1990, representing the failure to remit
the $15,000 difference in rate for those months.
As noted earlier from September 1, 1990, until January 3,
1991, Respondents failed to remit any contractually required
contributions to either the Welfare Trust Fund or the Prepaid
Legal Service Care Fund.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
By identical letters dated September 28, 1990, Michael
Sackman, the trustee chairman of the Welfare Trust Fund,
and Raul Aldrich, secretary-treasurer of the Union, wrote the
Respondents’ law firm with reference to Flatbush Nursing
Home, informing it that:
In accordance with our Collective Bargaining Agree-
ment, we are exercising our right to audit your books
and records for the purpose of, but not limited to,
ascertaining whether you have been making the proper
remittance of dues and initiation fees.
The letters went on to request copies of forms WRS-2s filed
for the period January 1, 1985, and ending December 31,
1989, and ended by requesting an immediate response in
order for the audit to be completed as soon as possible.
In a letter dated October 31, 1990, Arthur Boden, Flatbush
administrator, informed Raul Aldrich, who months earlier
had sought an audit of its books and records for the same
reasons expressed in the September 28 requests:
As you were previously advised, Flatbush Manor Care
Center has no contractual obligation with Local 1115,
nor has it ever had any contractual obligation with
Local 1115. Flatbush Manor hires contractors to per-
form its labor services.
Copies of the letter were forwarded to Fair and Attorneys
Arthur Kaufman and Richard Greenspan.
Greenspan now responded on behalf of the Union to
Boden at Flatbush Manor in a letter dated November 5,
1990. He expressed the Union’s position, since in part sus-
tained by the Board, ‘‘that Flatbush Manor is either a single
or joint-employer and/or alter ego with any contractor it en-
gages to perform labor services, and, as such, is bound by
the terms of the Union’s contract and responsible to the em-
ployees covered thereby.’’
In the next paragraph Greenspan then makes demand that
Boden submit the contracts under which the labor service
contractor performs work and detailed information concern-
ing the ownership of the facility and the contractor, for the
entire period that Boden claims that contractors have pro-
vided the labor services. In a separate letter to Arthur Kauf-
man, dated November 12, 1990, Greenspan expressed his cli-
ent’s position that its bargaining relationship extends to both
the ‘‘contractor’’ and Flatbush Manor and that, accordingly,
any contract made involving this facility is binding on
Flatbush Manor as well as any contractor including any suc-
cessor contractor which may be involved.
Responding to Greenspan’s request for information, by let-
ter dated November 20, 1990, Kaufman indicates he cannot
respond in so far as the request was directed to Flatbush
Manor, but to the extent the request is made to Fair Manage-
ment, his office does not believe that such issue is relevant
to the negotiations at hand. He closes this subject by noting
that ‘‘if you choose to pursue such matter, we will allow a
court of law to determine if you are entitled to such informa-
tion.’’
In a certified letter dated November 28, 1990, which was
received on November 20, Raul Aldrich wrote Fair Manage-
ment and Flaltbush Manor:
In accordance with the collective-bargaining agreement,
the 1115 Nursing Home and Hospital Employees
Union, a Division of 1115 Joint Board requests that the
Employer submit the names and addresses of all em-
ployees covered by this agreement for the last six
months.
The record contains no evidence that Respondents honored
this request.
Edith Lohlein, Local 1115 business representative respon-
sible for the Respondents’ facility, among others, off and on
from 1984 to 1991, described the subject bargaining unit as
including blue collar workers and licensed practical nurses.
The collective-bargaining relationship between the Union and
Respondent Flatbush Manor commenced in 1982.
According to Lohlein, she was present in the building but
not present in the room where the negotiations were taking
place on March 16, 1990, for the second memorandum of
agreement. These negotiations were being held after the due
date of March 1, 1990, for payment of the lump-sum
amounts in dispute. To her knowledge, neither in her pres-
ence nor based on various contracts and arbitration awards
which she maintained in a file on the Respondents’ facility,
was she made aware of any express waiver by the Union of
the Respondents’ obligation expressed in the memorandum to
make payment of the bonuses.
Lohlein testified that the Union made the request to audit
Flatbush’s books and records to review dues and initiation
fee remittances so that it could determine if it was receiving
the correct amount of funds—an issue at the time. The Re-
spondents never agreed to the audit or permitted a review of
their books and records.
After the Union received Boden’s letter of October 31,
1990, advising that Flatbush Manor had no contractual obli-
gations with Local 1115, the Union responded by its coun-
sel’s letter dated November 5, 1990, requesting the contract
between Flatbush and Fair and their respective ownership of
the facility, to resolve the question the employers had raised
as to who really was the employer of the unit employees.
This information was never provided the Union.
Finally, the Union requested the names and addresses of
unit employees for the past 6 months on November 28, 1990,
to be sure that it was collecting the right amount of fund and
dues contributions. Again, the Respondents never provided
this information.
During Lohlein’s further examination by union counsel,
she testified that during the pendency of the dispute with Re-
spondents regarding their failure to make proper remissions
of the contractual amounts of contributions to the respective
funds, she visited the facility and informed the employees
that the Company was jeopardizing their benefits. The em-
ployees were very upset by this disclosure. As to the Union’s
request for names and addresses, Lohlein testified that she
suspected that the Employer was not reporting all the names
of employees to the Union and reported this suspicion to the
employees. She did a timecard check at the Brooklyn facility
and saw names of employees not included in Respondents’
statements which accompanied its regular remittances to the
Funds and Union. She reported these discrepancies to both
the employees and to Respondents’ management.
19FLATBUSH MANOR CARE CENTER
Respondents chose not to cross-examine Lohlein but pre-
sented a number of documents in the presentation of their de-
fense, discussed below.
In an order signed by Judge Herbert Kramer of the Su-
preme Court of the State of New York, County of Kings, on
December 1, 1992, in the case of Bella Oberlander v. Sandos
Oberlander, Index No. 2266/89 the Court, on motion of
Richard Greenspan, counsel for certain named trustees of the
Local 1115 Welfare Trust Fund and Legal Service Care
Fund, ordered that Lawrence C. Schoen, as judicial receiver,
pay the sum of $119,000 to the funds, and that the applica-
tion of the trustees for leave to sue receiver be denied. The
order recites that in the application the trustees had sought
permission to bring an action against Schoen, as receiver of
Flatbush Manor, to recover contributions allegedly owed to
the two employee benefit funds pursuant to a collective-bar-
gaining agreement.
Respondent counsel represented that this order disposes of
certain monetary claims of 1115’s related union welfare fund
and legal fund. Union counsel represented that the sum of
$1119,000 provided for in the order was paid in a check
dated December 10, 1992, which was received by the respec-
tive funds a day or so later. Thus, the money which the
Union claims it did not receive on behalf of the funds, and
which is encompassed by the respective allegations of the
consolidated complaint was finally paid as a consequence of
an application made in the New York State courts in the pro-
ceeding involving the dispute between the partners of
Flatbush Manor.
Respondent also produced and included in the record a let-
ter dated June 5, 1990, from Regional Director Blyer to Re-
spondents Flatbush and Fair in one of the three consolidated
cases, Case 29–CA–14844, in which the Regional Director
informed Respondents that he was declining to issue com-
plaint on the allegation of a refusal to pay the scheduled
wage adjustment due to employees on March 1, 1990, in ac-
cordance with the Board’s arbitration deferral policy as es-
tablished in Collyer Insulated Wire, 192 NLRB 837 (1970);
United Technologies Corp., 268 NLRB 557 (1984); and
Postal Service, 270 NLRB 114 (1984).
The Regional Director went on to note that in his view
further proceedings on this obligation should be administra-
tively deferred for submission to the grievance-arbitration
machinery of the parties’ collective-bargaining agreement,
and citing, in support, among other reasons that the Union
is willing to arbitrate the disputes which underlie this allega-
tion.
Further in the letter, the Regional Director notes his inten-
tions to revoke his decision to defer and to dismiss the
charge in the event that the Charging Party fails or refuses
to continue to pursue the grievance through the steps of the
contract grievance-arbitration procedure, abandons the griev-
ance, or in the event the Charging Party notifies him in writ-
ing that it does not intend to pursue this grievance.
Subsequently, by letter dated July 22, 1991, Respondent
Fair’s attorney Mandel wrote then counsel for General Coun-
sel Elaine Robinson-Fraction confirming his oral advice in
which he urged the Region to dismiss the deferred charge
since no grievance was filed with his client and no arbitra-
tion process ever invoked by the Charging Union.
By letter dated October 20, 1992, Regional Director Blyer
inquired of the Union, with copies to Flatbush, Mandel, and
Greenspan, as to the status of the dispute underlying the
charge in Case 29–CA–14844, and set a deadline of Novem-
ber 3, 1992, for its response.
Then, by letter dated July 1, 1993, Regional Director Blyer
notified the Charging Union and Respondents Flatbush and
Fair and with copies to the General Counsel’s Office of Ap-
peals, and all counsel, that since his decision to defer Case
29–CA–14844 on June 5, 1990, he has ‘‘reconsidered his ac-
tion in deferring the matter, with respect to the merits of the
charge, and in view of the impact of related unfair labor
practice charges involving the parties herein in Case Nos.
29–CA–15253 and 29–CA–15376.’’ The Regional Director
went on to note he was remanding the matter to himself for
further processing, revoking his action reflected in his June
5, 1990 letter, and the charge in Case 29–CA–14844 was
being processed further. On the same date, the Regional Di-
rector signed and issued his order further consolidating cases,
consolidated complaint and notice of hearing in the instant
proceeding.
Conclusions and Analysis
I turn first to the failure to pay the bonus contained in the
1988 agreement and Respondent’s defense that the Union
waived any right to the moneys in the March 16, 1990
memorandum agreement.
The governing principle of law is that in order to effec-
tuate the relinquishment of a collective-bargaining right
under the provisions of a collective-bargaining agreement,
the language must be clear and unmistakable. Federal Com-
press & Warehouse Co. v. NLRB, 398 F.2d 631 (6th Cir.
1968). Put another way, a contractual waiver of a statutory
right will not be lightly inferred, but rather must be ‘‘clear
and unmistakable.’’ Metropolitan Edison v. NLRB, 460 U.S.
693, 708 (1983). The Board has added, ‘‘we will ordinarily
not infer a waiver of the right to bargain over a particular
mandatory subject of bargaining from a contract clause
couched in general terms.’’ Register Guard, 301 NLRB 494
at 495 (1991). A waiver by contract may be found where the
language in question is sufficiently specific. Johnson-Bate-
man Co., 295 NLRB 180, 189–190 (1989).
A waiver can also occur by the conduct of the parties (in-
cluding past practices, bargaining history, and action or inac-
tion), or by a combination of the two. See United Tech-
nologies Corp., 274 NLRB 504, 507 (1985).
Examining the language of the paragraph of the March 16,
1990 agreement asserted to contain the waiver, it is apparent
it consists of two parts, which, read together, are in conflict
and thus ambiguous. In the first part, the parties agree that
the underlying agreement as modified by the previous memo-
randum of understanding (containing the lump-sum obliga-
tion) survives and is incorporated here unless modified
below. In the substantive terms of the March 16 memoran-
dum, no modification is made of the lump-sum bonus and
it thus survives and is incorporated in the new March 16,
1990 memorandum. In the second part the parties agree this
agreement satisfies all previous obligations arising under the
parties previous collective-bargaining agreements. Under one
interpretation, this provision would nullify the bonus obliga-
tion. Yet, read together they cannot be reconciled and this
can hardly be said to provide clear and convincing language
of a waiver.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Furthermore, the language referring to satisfying ‘‘all pre-
vious obligations’’ fail to specify whether it cancels, in par-
ticular those obligations like the bonus which accrued on
March 1, 1990, before the March 16, 1990 effective date of
the memorandum and thus were fully earned and matured by
that latter date, or only those future obligations which would
have been effective between March 16, 1990, and January 4,
1991, such as wage increases and fund contributions. It is
clear these future obligations under the 1988 agreement were
modified in the March 16 memorandum of agreement, but
the lump-sum bonus which had accrued was not.
That the Union from the outset did not deem the March
16, 1990 memorandum language a waiver of the right of the
employees it represented is clear from its mailgram demand
made of Flatbush on April 12 within a month of the effective
date of the alleged waiver.
Respondents who have the burden of proof of the waiver
which it asserts as an affirmative defense have failed to ad-
duce any evidence relating to the contemporary negotiations,
bargaining history, or past practices, which support a clear
and unmistakable waiver. I do not deem its May 3, 1990
memorandum to employees as providing such support. The
fact that the Union considered increases in fund contributions
its first bargaining priority does not warrant the conclusion
that the Union was thereby willing to forego earned bonuses
for its unit employees to achieve that objective. The evidence
is lacking for any such finding.
The documentary evidence there is surrounding the 1990
relationship between the parties, which terminated early the
following year, shows a somewhat distrustful and non-
cooperative relationship, in which the Union asserted various
rights to moneys and information and sought to conduct au-
dits and the Respondents asserted, inter alia, that the operator
of the Brooklyn facility had no contractual obligations to the
Union which represented its employees. Under such cir-
cumstances, Respondents would be hard pressed to show a
voluntary relinquishment of a bonus whose payment was al-
ready overdue when the March 16, 1990 memorandum was
executed.
I conclude that no waiver of the claim to the lump-sum
bonus payment has been established and the Respondents’
failure to make the payments constitute a violation of their
bargaining obligation arising under Section 8(a)(1) and (5) of
the Act, Nedco Construction Co., 206 NLRB 150 (1973);
Oak Cliff-Golman Baking Co., 207 NLRB 1063 (1973).
Respondents nonetheless assert that the Regional Director
erred in not dismissing the charge alleging the refusal to
make the lump-sum bonus payment because of the Union’s
failure to arbitrate the underlying dispute. While it was ap-
propriate for the Regional Director to have deferred the
charge to arbitration, as he did on June 5, 1990, when it was
the only outstanding charge, once the other charges were
filed, alleging, inter alia, a failure to provide information,
which is not subject to the contractual grievance arbitration
procedure, and the failure to remit fund contributions, as to
which no deferral defense has been asserted, and the Union
ceased to be the unit employees’ bargaining representative,
it was appropriate for the Regional Director to reevaluate his
earlier deferral ruling.
The issuance of complaint on the issue and its consolida-
tion with the two companion charges was done in accordance
with the General Counsel’s longstanding policy not to defer
a matter to arbitration when, although a complaint allegation
could have been deferred to the parties’ grievance and arbi-
tration machinery, other allegations, like the instant failures
to produce information which are not deferrable and must be
determined by the Board, have a close interrelationship. In
such circumstances, as the Board has noted and determined,
there is no compelling reason for deferring one aspect of the
dispute to the grievance-arbitration machinery. George Koch
Sons, Inc., 199 NLRB 166 (1972); S.Q.I. Roofing, 271
NLRB 1 fn. 3 (1984). The Board’s recent decision in
Clarkson Industries, 312 NLRB 349 (1993), in which the
Board reversed the judge and found that issues concerning
alleged unilateral changes should be deferred to the parties’
grievance-arbitration procedures is distinguishable. There, un-
like the situation here, the Board found these deferrable
issues were not in any way factually or legally interrelated
with the issues presented by an alleged threat and alleged
discriminatory discipline as to which, because of contractual
limitations on an arbitrator’s authority to fashion an appro-
priate remedy, deferral was not warranted. Thus, the Union’s
failure to proceed to arbitration on the bonus payment issue
is no defense to the Board’s determination of that issue in
the instant consolidated proceeding.
With respect to Respondents’ failure to make payment of
the contractual fund contributions, it is well settled that any
unilateral change made by an employer during the course of
a collective-bargaining relationship concerning matters which
are mandatory subjects of bargaining are a per se refusal to
bargain. See NLRB v. Katz, 369 U.S. 736 (1962). To the ex-
tent Respondents were obligated under the terms of their col-
lective-bargaining agreement with the Union to make mone-
tary contributions to the Union’s Welfare Trust Fund and
Prepaid Legal Service Care Fund on behalf of their employ-
ees in the bargaining unit their failure to make those con-
tributions constitute violations of Section 8(a)(1) and (5) of
the Act. It is clear that Welfare Fund contributions are a
mandatory subject of bargaining. Capitol City Lumber Co.,
263 NLRB 784 (1982). By failing and refusing to make
those contributions, the Respondents invaded the Union’s
‘‘statutory right as a collective-bargaining representative of
employees in the unit to bargain about any changes in the
terms and conditions of employment for each employee’’ in
violation of the Act. C & C Plywood Corp., 148 NLRB 414,
415 (1964), affd. 385 U.S. 421 (1967), reversing 351 F.2d
224 (9th Cir. 1965).
Just as welfare benefits provided by the Union’s Trust
Fund were a part of the employees’ terms and conditions of
employment, and therefore mandatory, so too the legal serv-
ices provided by the Prepaid Legal Service Care Fund were
a term and condition of employment of the employees cov-
ered by the collective-bargaining agreement. While my re-
search has failed to uncover a fully litigated Board decision
dealing with such a benefit, by virtue of Pub. L. 93-95, Au-
gust 15 1973, Section 302(c)(8) was added to Section 302
of the Labor Management Relations Act, removing the re-
strictions on employer payment to any representative of his
employees or to any labor organization, with respect to
money or any other thing of value paid by any employer to
a trust fund established by such representative for the pur-
pose of defraying the costs of legal services for employees,
their families, and dependents for counsel or plan of their
choice, provided certain requirements regarding the fund, in-
21FLATBUSH MANOR CARE CENTER
cluding a written agreement, equal representation in the ad-
ministration of the fund, and the like apply. There is no evi-
dence, and Respondents do not claim, that the legal fund
fails to meet Section 302 requirements. Accordingly, group
fringe benefits covering legal services, just like pooled vaca-
tion, holiday, severance, or similar benefits, among others,
may be provided in collective-bargaining agreements and be-
come enforceable obligations, for which the contracting em-
ployers, like the Respondent here, may be held liable under
the Act for their failure to make the contractual contribu-
tions. See Catalina Corp., 303 NLRB No. 110 (July 18,
1991) (not published in Board volumes).
It is no defense to a finding of these violations to show
that payments were finally made, acceptable to the Union,
following the institution of a lawsuit to collect the same al-
most 2 full years after the last payments would have been
made. The substantial sums due and owing here, the inordi-
nate delay in making the contractual payments, and the fact
that even then they were not made voluntarily, evidences a
repudiation of the statutory and contractual obligation such
that a finding of violation is clearly warranted here. See Nick
Robilotto, Inc., 292 NLRB 1279 at fn. 4 (1989), and North-
east Truck Center, 296 NLRB 753 at 757 (1989).
As to the Respondents’ refusal to permit an audit of its
books and records or to furnish the contracts for labor serv-
ices and information regarding ownership of the facility or
the names and addresses of unit employees, the evidence
shows Respondents failed to comply with these requests.
It is well established that an employer must provide the
union which represents its employees in a collective-bargain-
ing relationship with requested information which is nec-
essary and relevant to the performance of its role as collec-
tive-bargaining representative. NLRB v. Acme Industrial Co.,
385 U.S. 432 (1967). Acme emphasized the importance of in-
formation relevant to the union in its efforts to police and
administer the collective-bargaining agreement. It also en-
dorsed the ‘‘discovery type standard’’ applied by the Board.
NLRB v. Yawman & Erbe Mfg. Co., 187 F.2d 947, 949 (2d
Cir. 1951).
The Union requested the audit to determine whether the
proper remittance of dues and initiation fees were being
made under the union-shop article of the collective-bargain-
ing agreement in the 1982 agreement and incorporated in all
successive agreements. There can be no question that the in-
formation the Union sought by the audit was in aid of its
rights to enforce the union-shop clause of the agreement and
thus necessary and relevant to its role as collective-bargain-
ing representative. Respondent Flatbush’s response was that
it had no contractual relation with the Union—it did not re-
spond to the merits of the request itself. However, by placing
all responsibility on its labor contractor and avoiding any for
itself, Respondents placed in issue the relationship between
them and the ownership of the Brooklyn facility. Thus,
Union Counsel Greenspan was well within the parameters of
the Board’s standard for relevance in seeking information as
the contractual relationship with Flatbush’s labor service con-
tractor Fair and the ownership of the Brooklyn facility. If
Fair and Flatbush were so intertwined as to constitute a sin-
gle or joint employer then all obligations due under the col-
lective-bargaining agreement would be the responsibility of
both identities, and the facts regarding their relationship
would be in aid of the Union in carrying out its statutory du-
ties and responsibilities. See Herbert Industrial Insulation
Corp., 312 NLRB 602 (1993), and Barnard Engineering Co.,
282 NLRB 617 (1987). Whether or not the facts showed
such a relationship, clearly by denying its own responsibility
and placing all on its labor contractor, Respondent Flatbush
made its relationship with Fair a relevant area of inquiry for
the Union. It should be noted that the Board did ultimately
find single-employer status.
Finally, the statutory duty to provide information clearly
encompasses the Union’s request for a list of employee
names and addresses for the previous 6 months. Not only did
the agreement specifically mandate the Employer to provide
such an updated list, see Commercial Property Services, 304
NLRB 134 (1991), but such information has been found by
the Board to be necessary and relevant to the Union’s func-
tion as the unit employees’ collective-bargaining representa-
tive. Phoenix Co., 274 NLRB 995 (1985). In the absence of
any showing by Respondents rebutting the presumption of
relevance, such information concerning the bargaining unit
itself is presumptively relevant and will be ordered disclosed.
E. I. Dupont & Co. v. NLRB, 744 F.2d 536 (6th Cir. 1984).
Given the outstanding dispute involving missed fund pay-
ments, and the union business representative’s suspicions as
to whether there had been proper reporting of all unit em-
ployees in the documents accompanying Respondents’ remit-
tance of moneys to the Union under the contract, the record
independently establishes a high degree of actual relevance
to the Union’s request for the employees names and address-
es.
CONCLUSIONS OF LAW
1. Respondents Flatbush and Fair constitute a single-inte-
grated business enterprise and a single employer, within the
meaning of the Act, and each of them are now, and have
been at all times material, employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act,
and heath care institutions within the meaning of Section
2(14) of the Act.
2. 1115 Nursing Home and Service Employees Union, Di-
vision of 1115 District Council, AFL–CIO is, and has been
at all times material, a labor organization within the meaning
of Section 2(5) of the Act.
3. All all times material, until on or about January 3, 1991,
the following employees of Respondents constituted a unit
appropriate for the purposes of collective-bargaining within
the meaning of Section 9(b) of the Act:
All employees employed at Respondents’ Brooklyn
facility, excluding registered nurses, confidential, office
and clerical employees, supervisors, watchmen and
guards.
4. At all times material, until on or about January 3, 1991,
the Union by virtue of Section 9(a) of the Act, was the ex-
clusive representative of the employees in the unit described
above in paragraph 3, for the purposes of collective-bargain-
ing with respect to their rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment.
5. By failing and refusing to make the contractually re-
quired lump-sum bonus payments to their blue collar em-
ployees who were employed by them during the period from
October 29, 1989, through February 28, 1990, by failing and
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
5 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 Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
refusing to remit the full amount of the contractually required
contributions to the 1115 Union Welfare Trust Fund from on
or about April 1 to August 31, 1990, and by failing and re-
fusing to remit any contractually required contributions to the
1115 Union Welfare Trust Fund and to the 1115 Prepaid
Legal Service Care Fund from on or about September 1,
1990, until January 3, 1991, without prior notice to Local
1115, and without affording Local 1115 an opportunity to
bargain with Respondents with respect to this conduct; and
by failing and refusing to permit Local 1115 to audit their
books and records for the purpose of ascertaining whether
the proper dues and initiation fees had been remitted to Local
1115; and by failing and refusing to furnish Local 1115 pur-
suant to its requests, with the contract under which the labor
services contractor, Respondent Fair, performs work and de-
tailed information concerning the ownership of the Brooklyn
facility and the subcontractor, and the names and addresses
of all employees covered by the collective-bargaining agree-
ment for the last 6 months preceding its request, Respondents
have failed and refused, and are failing and refusing, to bar-
gain collectively and in good faith with Local 1115, and
have thereby been engaging in unfair labor practices within
the meaning of Section 8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondents have each engaged in
certain unfair labor practices in violation of Section 8(a)(1)
and (5) of the Act, I shall recommend that they each cease
and desist therefrom and take certain affirmative actions
which are necessary to effectuate the policies of the Act. I
shall recommend that Respondents be ordered to pay each of
the blue collar employees in the bargaining unit employed by
them during the period from October 29, 1989, through Feb-
ruary 28, 1990, the lump-sum bonus payment required to be
paid pursuant to the 1988 memorandum of agreement with
Local 1115, with interest thereon as computed in New Hori-
zons for the Retarded, 283 NLRB 1172 (1987).
Inasmuch as Local 1115 ceased representing the bargain-
ing unit after January 3, 1991, and all of the moneys due and
owing the Local 1115 Trust Funds under the collective-bar-
gaining agreements have been paid, I shall not recommend
that Respondents cease and desist from refusing to bargain
on request, bargain in good-faith with, Local 1115, nor shall
I recommend that Respondents make the requisite payments
which the respective Trust Funds have already received.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondents, Flatbush Manor Care Center and Fair
Management Consulting Corp., Brooklyn, New York, their
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the certified or
duly designated exclusive bargaining representative of all of
their employees employed at their Brooklyn facility, exclud-
ing registered nurses, confidential, office and clerical em-
ployees, supervisors, watchmen and guards, by unilaterally,
and without prior notice to, or having afforded, the said rep-
resentative an opportunity to bargain, failing and refusing to
make contractually required lump-sum bonus payments, and
to remit contractually required contributions to the represent-
ative’s trust funds, and by failing and refusing to permit an
audit of their books and records and to furnish information
both of which are necessary and relevant to the performance
of the representative’s role as collective-bargaining represent-
ative of our employees in the unit described.
(b) In any like or related manner restraining or coercing
employees in the exercise of rights the guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Pay to each blue collar employee in the bargaining unit
described above, employed by them during the period from
October 29, 1989, through February 28, 1990, the lump-sum
bonus payment required to be paid pursuant to the 1988
memorandum of agreement with 1115 Nursing Home and
Service Employees Union, Division of 1115 District Council,
AFL–CIO in the manner set forth in the remedy section of
this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its Brooklyn, New York facility copies of the
attached notice marked ‘‘Appendix.’’5 Copies of the notice,
on forms provided by the Regional Director for Region 29,
after being duly signed by the Respondents’ authorized rep-
resentative, shall be posted by the Respondents 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 Respondents to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent Em-
ployers have taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
23FLATBUSH MANOR CARE CENTER
WE WILL NOT refuse to bargain collectively with the cer-
tified or duly designated exclusive bargaining representative
of all our employees employed by us at our Brooklyn facil-
ity, excluding registered nurses, confidential, office and cleri-
cal employees, supervisors, watchmen and guards, by unilat-
erally, and without prior notice to or having afforded the said
representative, an opportunity to bargain, failing and refusing
to make contractually required lump-sum bonus payments,
and to remit contractually required contributions to the said
representative’s trust funds, and by failing and refusing to
permit an audit of our books and records and to furnish in-
formation both of which are necessary and relevant to the
performance of the representative’s role as collective-bar-
gaining representative of our employees in the unit described.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce any of our employees in the exercise of
the rights guaranteed by Section 7 of the Act.
WE WILL pay to each blue collar employee in the bargain-
ing unit described above, employed by us during the period
from October 29, 1989, through February 28, 1990, the
lump-sum bonus payment required to be paid pursuant to the
1988 memorandum of agreement with 1115 Nursing Home
and Service Employees Union, Division of 1115 District
Council, AFL–CIO together with interest thereon.
FLATBUSH MANOR CARE CENTER AND FAIR
MANAGEMENT CONSULTING CORP.