Hospitality Care Center

National Labor Relations Board - Board Decisions

Aug 25, 1994

314 N.L.R.B. 893 (N.L.R.B. 1994)

893
314 NLRB No. 147
HOSPITALITY CARE CENTER
1 In its exceptions, the Respondent argues that, in light of the stip-
ulation of settlement and judgment entered into before the United
States District Court, District of New Jersey, ‘‘it would be inappro-
priate, and a waste of the National Labor Relations Board scarce re-
sources to further pursue this matter.’’ Initially, we note that the
stipulation of settlement and judgment was set aside by the District
Court in its subsequent judgment dated January 3, 1994, in which
the District Court found that the Respondent failed to adhere to the
stipulation of settlement and therefore rendered a judgment in favor
of the Union. To the extent that the Respondent is arguing that the
Board should be collaterally estopped from deciding the instant un-
fair labor practice case because the issues have already been decided
by the District Court’s judgment, we disagree. The Board ‘‘as a pub-
lic agency asserting public rights should not be collaterally estopped
by the resolution of private claims asserted by private parties.’’ Field
Bridge Associates, 306 NLRB 322 (1992), enfd. 982 F.2d 845 (2d
Cir. 1993). Accordingly, the Board is not estopped from deciding the
instant unfair labor practice issues. We note, however, that the Dis-
trict Court’s judgment may be relevant, in the compliance stage of
this proceeding, for the purpose of determining the amounts of con-
tributions now due. The Respondent will not be required to make
duplicate payments to the Union or the funds for any particular ob-
jection. 1 All dates hereinafter are in 1992, unless otherwise indicated.
New Associates d/b/a Hospitality Care Center and
1115 Nursing Home and Service Employees
Union-New Jersey A, A Division of 1115 Dis-
trict Council, H.E.R.E., AFL–CIO. Case 22–
CA–18606
August 25, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On February 3, 1994, Administrative Law Judge
Steven B. Fish issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
Genral Counsel filed an answering brief and the
Charging Party 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 exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings, and
conclusions 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 Respondent, New Associates d/b/a Hos-
pitality Care Center, Newark, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
William E. Milks, Esq., for the General Counsel.
Elliot J. Mandel, Esq. (Kaufman, Naness, Schneider &
Rosenzweig, P.C.), of Melville, New York, for the Re-
spondent.
Stuart Weinberg, Esq. (Richard Greenspan, P.C.), of White
Plains, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant to
charges filed by 1115 Nursing Home and Service Employees
Union, New Jersey A, a Division of 1115 District Council
H.E.R.E., AFL–CIO (the Union), the Regional Director for
Region 22 issued a complaint and notice of hearing on Sep-
tember 25, 1992,1 alleging that New Associates d/b/a Hospi-
tality Care Center (Respondent) has violated Section 8(a)(1)
and (5) of the Act by failing to make required contributions
to the Union’s Legal and Welfare Funds and failing to remit
dues and initiation fees to the Union.
The trial regarding the issues raised by the complaint was
held before me in Newark, New Jersey, on April 1, 1993.
Based on the entire record, including my observation of
the witnesses, and after due consideration of the briefs filed
by the General Counsel and the Charging Party, I make the
following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent is a health care institution engaged in the
operation of nursing home providing inpatient medical and
professional care services, with a facility located in Newark,
New Jersey. During the past year, Respondent derived gross
revenues in excess of $100,000 and purchased and received
at its Newark, New Jersey facility, products, goods, and ma-
terials valued in excess of $5000 directly from points located
outside the State of New Jersey.
It is admitted and I so find that Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and is a health care institution within
the meaning of Section 2(14) of the Act.
It is also admitted and I so find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Facts
The Union has been for a number of years the recognized
collective-bargaining representative of Respondent’s employ-
ees in an appropriate unit consisting of all employees exclud-
ing registered nurses, licensed practical nurses, supervisors,
watchmen, office employees, clerical workers, first cook, die-
titian, telephone operator, professional employees, guards,
and recreational personnel. The Union and Respondent en-
tered into a collective-bargaining agreement, covering the
employees in the unit, which was effective from December
24, 1991, to December 23, 1995. The agreement provides
that Respondent is required to make monthly payments into
the Union’s welfare fund, and to deduct from its employees
salaries, union dues and initiation fees and remit same to the
Union promptly.
The contract also contains a broad grievance and arbitra-
tion clause, which culminates in an agreement to arbitrate all
disputes not satisfactorily resolved.
General Counsel’s evidence, which is undisputed and
based on the testimony of Harry Veras, controller of the
Union and its affiliated funds, corroborated by fund records,
establishes that Respondent, from May 1992 to the date of
the hearing, made no payments into the Union’s legal fund,
and only one payment into the Union’s welfare fund. That
payment, which was made on December 28 for $759, rep-
resented only moneys that employees contributed towards
their health insurance for the period May to November,
which were deducted from their salaries by Respondent. Re-
spondent also failed to make any remittance of dues or initi-
ation fees from May to December 1992. On December 28,
1992, Respondent made a lump-sum payment for dues and
initiation fees owed to the Union, covering the period from
May through November. No payments of any kind were
made by Respondent to any of the funds or to the Union for
dues or initiation fees, since December 1992 up to the date
of the instant hearing, April 1, 1993.
At some point, undisclosed by the record, the Union filed
a grievance under its collective-bargaining agreement con-
cerning Respondent’s failure to make payments to the
Union’s welfare and legal funds, and its failure to remit dues.
A hearing was held before Arbitrator Roger Maker on No-
vember 24, with respect to this grievance.
After briefs were filed, the arbitrator issued a decision on
December 12, awarding the Union a grand total of
$202,614.35, which comprised the total amounts due to the
Union plus interest, for moneys owed to the welfare and
legal funds, and for dues. No award was made for initiation
fees owed, as it does not appear that the Union made a claim
for such payments in that proceeding. The arbitrator also or-
dered, pursuant to the Union’s request, that Respondent post
a cash bond of $157,000, equivalent to 6 months of contrac-
tually obligated dues and contributions to be deposited with
the Union on receipt of the award, as well as payment of the
entire arbitrator’s fee of $825. As of the time of the trial, the
Union was in the process of seeking to enforce this arbitra-
tion award.
Respondent’s answer did not raise the defense of deferral
to this arbitration award, or alleged that any portion of the
complaint be deferred to the arbitration process. However,
Respondent raises the issue of the arbitration award at the
trial, and introduced the award into evidence. Moreover, Re-
spondent’s attorney stated that it was asserting that the arbi-
tration award should be deferred to arbitration, insofar as it
is related to allegations in the complaint, and that the remain-
der of the complaint allegations should be deferred to the ar-
bitration process.
II. ANALYSIS
The only significant issue for consideration herein is the
question of deferral to arbitration. Respondent asserts that the
portion of the complaint covered by the arbitration award
should be dismissed, Spielberg Mfg., 112 NLRB 1080
(1955), Olin Corp., 268 NLRB 573 (1984), and the remain-
ing portions of the complaint, which were not the subject of
the award, should be deferred to the parties collective-bar-
gaining process. Collyer Insulated Wire, 197 NLRB 837
(1971); United Technologies Corp., 268 NLRB 557 (1984).
The General Counsel initially argues that Respondent, not
having raised the issue as an affirmative defense in its an-
swer, is precluded from raising deferral as a defense to any
of its conduct. I do not agree. While it is true that deferral
is an affirmative defense that can be waived if not raised
timely, it is sufficient if the defense is raised either in the
answer or at the hearing. 15th Avenue Iron Works, 301
NLRB 878, 879 fn. 12 (1991). Here, since I have found
above that Respondent raised the issues of deferral during the
course of the hearing, the defense is properly and timely
raised for my consideration.
The General Counsel and the Charging Party also assert
that deferral is inappropriate, since Respondent has not
claimed that its refusals to make any of the payments were
privileged by any contractual provision, and therefore there
is no bona fide issue of contract interpretation warranting de-
ferral to the arbitration process. Stevens & Associates Con-
struction Co., 307 NLRB 1403 (1992). I agree with these
contentions, but only insofar as they relate to the portions of
the complaint that were not covered by the arbitration award.
As to those allegations, which include the failure to remit
initiation fees from May 1992 to date, and the failure to
make welfare and legal fund payments or to remit dues for
the months of December 1992 through the end of March
1993, deferral to prospective arbitration under Collyer, supra,
is not warranted, since no bona fide contractual issue has
been raised. Stevens, supra.
However, the question of deference to the existing arbitra-
tion award, which resolved the alleged delinquencies to the
welfare and legal funds, and the failure to remit dues, for the
periods from May through November, must be evaluated
under the standards of Spielberg, supra, and Olin, supra. As
to this issue, the General Counsel relies on SQI Roofing, 271
NLRB 1 (1984); and Sheet Metal Workers Local 17 (George
Koch Sons), 199 NLRB 166, 168 (1972); where the Board
declined to defer under Collyer, supra, because of the inter-
relationship between the allegations on which deferral is
sought and other allegations which the Board must decide,
and the Board’s policy of resolving the entire dispute in a
single proceeding. The General Counsel and the Charging
Party argue that since the arbitration award did not cover the
failure to make payments and remit dues for the periods from
December 1992 to date, and made no reference to the failure
to remit initiation fees, it is not possible to resolve the entire
dispute, as these delinquencies must be resolved by the
Board, and therefore it is not appropriate to defer to the
895HOSPITALITY CARE CENTER
award, even with respect to the issues that the award did re-
solve.
I cannot agree with these contentions of the General Coun-
sel and the Charging Party, since the standards for deferral
under Collyer and Spielberg are not the same. The disposi-
tive precedent on this issue is 15th Avenue Iron, supra. Here,
the standards set forth in Spielberg and Olin have been met,
and the General Counsel has not offered any evidence nor
made any assertion to the contrary. While it is true that Re-
spondent has not complied with the arbitration award, it is
well settled that noncompliance with an arbitral award is not
a sufficient basis to avoid deferral of such an award. 15th
Avenue Iron, supra; Malrite of Wisconsin, 198 NLRB 241,
242 (1972), enfd. in relevant part 494 F.2d 1136, 1139 (D.C.
Cir. 1974); see also Ad-Art, Inc., 290 NLRB 590, 607
(1988). Indeed as the Board observed in Malrite, supra.
If the Board’s deference to arbitration is to be meaning-
ful, it must encompass the entire arbitration process in-
cluding the enforcement of arbitration process. It ap-
pears that the desirable objective of encouraging the
voluntary settlement of labor disputes through the arbi-
tration process will best be served by requiring that par-
ties to a dispute, after electing to resort to arbitration,
proceed to the usual conclusion of that process—judi-
cial enforcement—rather than permitting them to in-
voke the intervention of the Board. [198 NLRB at 241–
242.]
Accordingly, based on the foregoing I shall recommend
dismissal of the complaint insofar as it alleges that Respond-
ent failed to make payments to the Union’s welfare and legal
funds, and to remit dues to the Union, for the period from
May to November, since these matters were resolved and
fully remedied by the arbitration award.
That leaves for determination Respondent’s alleged failure
to make fund payments and remit dues for periods of time
from December 1992 through the end of March 1993, and
its alleged failure to remit initiation fees fron May 1992 to
date. With respect to the latter issue, Respondent did make
a payment on December 28, 1992, to the Union, covering
initiation fees that it had deducted from the salaries of its
employees, which covered a 6-month period, from May to
November. However, since the contract specifies that these
remittances be made promptly, a 7-month delay in making
the required contractual payments is more than a de minimis
failure to adhere to contractually mandated terms and condi-
tions of employment and is therefore violative of Section
8(a)(1) and (5) of the Act. King Manor Care Center, 308
NLRB 884, 887 (1992); Zimmerman Painting & Decorating,
302 NLRB 856, 857 (1991). Additionally, Respondent has
failed to make any further remittances of initiation fees since
December 1992, thereby not making any required payments
of initiation fees for a 4-month period, which is further viola-
tive of the Act.
As for the payments to the welfare and legal funds, and
the remittances of dues, I have found that Respondent has
failed to make any such contractually required payments of
these items for a similar 4-month period. By this conduct,
Respondent has again violated Section 8(a)(1) and (5) of the
Act, and I so find. Stevens, supra; Zimmerman, supra.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. At all times material, the Union has been, and is now,
the exclusive bargaining representative of all employees of
Respondent for purposes of collective bargaining within the
meaning of Section 9(a) of the Act, in the following appro-
priate unit:
All employees excluding registered nurses, licensed
practical nurses, supervisors, watchmen, office employ-
ees, clerical workers, first cook, dietitian, telephone op-
erator, professional employees, guards and recreational
personnel.
4. By ceasing to make contractually required payments to
the Union’s welfare and legal funds, and ceasing to remit
dues and initiation fees to the Union for the periods covering
the months of December 1992 and January, February, and
March 1993, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (5) of the
Act.
5. By failing to remit on a timely basis initiation fees to
the Union as required by the collective-bargaining agreement
between it and the Union, for the period between May and
November 1992, Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (5) of the
Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The allegations in the complaint that Respondent failed
to make contractual payments to the Union’s welfare and
legal funds, and failed to remit dues to the Union, for periods
from May through November 1992 shall be deferred to the
arbitration decision, and must therefore be dismissed.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and de-
sist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
I shall recommend that Respondent transmit contributions
not made on behalf of its employees to the Union’s welfare
and legal funds, with any interest or other sums applicable
to the payments to be computed in accordance with the
Board’s decision in Merriweather Optical Co., 240 NLRB
1213 (1979).
It is also appropriate to recommend that Respondent make
whole the unit employees for any losses that they may have
suffered as a result of Respondent’s failure to make the con-
tractually required contributions, in the manner set forth in
Ogle Protection Service, 83 NLRB 683 (1970), enfd. 444
F.2d 502 (6th Cir. 1971); and Kraft Plumbing & Heating,
252 NLRB 891 (1980), enfd. 661 F.2d 940 (9th Cir. 1981).
I shall also recommend that Respondent remit to the
Union dues and initiation fees as required under the collec-
tive-bargaining agreement. Interest shall also be paid to the
Union on the amounts owed to the Union for the failure to
remit dues and initiation fees, including the failure to timely
remit initiation fees for the periods from May to November
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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.
3 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.’’
1992, King Manor, supra at 890, as well as to the employees
on the losses that they may have suffered as a result of Re-
spondent’s failure to make fund contributions, in the manner
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987); Stevens, supra at 1404.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, New Associates d/b/a Hospitality Care
Center, Newark, New Jersey, its officers, agents, successors,
and assign, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with the
Union by failing and refusing to make contractually required
monetary payments to the Union’s welfare and legal funds,
and by failing to remit or by failing to make timely payments
to the Union, of dues and initition fees as required by the
collective-bargaining agreement.
(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.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make all contributions to the Union’s welfare and legal
funds that have not been paid and that would have been paid
in the absence of Respondent’s unlawful discontinuance of
the payments, and make whole employees with interest in the
manner set forth in the remedy section of this decision.
(b) Remit to the Union dues and initiation fees that were
not forwarded to the Union as required by the collective-bar-
gaining agreement, with interest to the Union on these sums,
and make whole the Union by the payment of interest for its
failure to make timely payments of initiation fees, as de-
scribed in the remedy section of this decision.
(c) 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.
(d) Post at its Newark, New Jersey facility, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the notice,
on forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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, de-
faced, or covered by any other material.
(e) 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 be dismissed
insofar as it alleges violations not found herein.
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.
WE WILL NOT refuse to bargain collectively with 115
Nursing Home and Service Employees Union—New Jersey
A, a Division of 1115 District Council, H.E.R.E., AFL–CIO,
by failing and refusing to make contractually required mone-
tary payments to the Union’s welfare and legal funds, and
by failing to remit or by failing to make timely payments to
the Union of dues and initiation fees as required by the col-
lective-bargaining agreement.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL make all contributions to the Union’s welfare
and legal funds that have not been paid and that would have
been paid in the absence of our unlawful discontinuance of
the payments, and make unit employees whole with interest.
WE WILL remit to the Union dues and initiation fees that
were not forwarded to the Union as required by the collec-
tive-bargaining agreement, with interest to the Union on
these sums, and make whole the Union, by the payment of
interest, for our failure to make timely payments of initiation
fees to the Union.
NEW ASSOCIATES D/B/A HOSPITALITY CARE
CENTER