King Manor Care Center

National Labor Relations Board - Board Decisions

Sep 18, 1992

308 N.L.R.B. 884 (N.L.R.B. 1992)

884
308 NLRB No. 127
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We shall leave to compliance, the determination of whether the
Respondent owes any additional payments and interest to District 6’s
welfare plan.
Under certain limited circumstances, Member Oviatt would not
find that an employer’s failure to make contractually required pay-
ments violates Sec. 8(a)(5) and (1) of the Act. See his dissent in
Zimmerman Painting & Decorating, 302 NLRB 856 (1991). In
Member Oviatt’s view, however, the Respondent here has not met
its burden of establishing its defense. At a minimum, under Member
Oviatt’s standard, the Respondent was required to show that it re-
quested to meet with the Union to discuss its habitually late pay-
ments. Here, there is no indication that the Respondent ever sought
to negotiate with the Union over an alleged inability to make timely
payments. Nor is there evidence that, at any time during the period
when the Union was complaining to the Respondent about its delin-
quency, the Respondent raised with the Union its view that the con-
tract did not require it to make monthly payments. Under these cir-
cumstances, Member Oviatt agrees with his colleagues that the Re-
spondent violated Sec. 8(a)(5) and (1) by failing to timely make con-
tractually required welfare payments.
1 Errors in the transcript have been noted and corrected.
King Manor Care Center and District 6, Inter-
national Union of Industrial, Service, Trans-
port and Health Employees. Case 22–CA–16834
September 18, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On February 5, 1992, Administrative Law Judge
Edwin H. Bennett issued the attached decision. The
Respondent filed exceptions and a supporting brief.
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 brief 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 take the action set forth in the Order.
Steven M. Kessler, Esq., for the General Counsel.
Morris Tuchman, Esq., for the Respondent.
Lawrence Goodman, Esq. and Jonathan Walters, Esq. (Wal-
ters, Willig, Williams & Davidson), and William Perry, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
EDWIN H. BENNETT, Administrative Law Judge. On Janu-
ary 7 and 14, April 30, and June 19, 1991, a hearing was
conducted on allegations in a complaint which had issued on
October 17, 1990, and which was amended at the hearing on
April 30, 1991, that King Manor Care Center (Employer or
Respondent) unilaterally changed conditions of employment
of employees represented by District 6, International Union
of Industrial, Service, Transport and Health Employees
(Union) by failing to make contractually required payments
to a health and welfare fund, or by delaying such payments.
The underlying charge was filed on February 28, 1990, and
served on March 7 by certified mail, contrary to Respond-
ent’s denial.
Respondent denies that it made unilateral changes assert-
ing that its payments, however irregular or delinquent, fol-
lowed a regular and consistent pattern from the inception.
Furthermore, Respondent contends the Board is not the prop-
er forum to remedy what at most arguably is a breach of
contract. Respondent’s answer also raised the affirmative de-
fense of ‘‘statute of limitations’’ (Sec. 10(b) of the Act), a
claim not further litigated or argued in the posthearing brief
and which therefore might be relegated to the status of a
nonissue except for the insertion of the matter into the case
by General Counsel, as noted directly below, and the fact
that the complaint itself dates the violation as beginning on
August 28, 1989, more than 6 months before service of the
charge on March 7, 1990.
Additional issues presented by this litigation concern
Charging Party’s request for sanctions against General Coun-
sel, as represented by the Regional Office, for prosecutorial
misconduct, particularly General Counsel’s refusal of Charg-
ing Party’s repeated requests at the hearing to amend the
complaint to allege that Respondent unlawfully refused to
provide the Union with the names of employees eligible for
welfare coverage and on whose behalf payments had been
made. Although General Counsel asserted that Section 10(b)
barred such amendment, on the last day of hearing General
Counsel advanced a theory that the duty to furnish such in-
formation was ‘‘inherent and implicit’’ in the obligation to
make payments and accordingly, in remedying the violation
based on the breach of that obligation, Respondent should be
required to furnish that very information. Subsequently, in
his brief, General Counsel completed his about face and stat-
ed unequivocally that ‘‘Respondent violated Sections 8(a)(1)
and (5) of the Act by failing to identify employees who were
eligible for welfare contributions,’’ a statement I construe as
a motion to amend the complaint to that effect.
Finally, an issue exists regarding General Counsel’s re-
quest, again made on the last day of hearing, that as part of
any remedy there be included what has become known as a
‘‘visitorial clause.’’ The above positions raise several ques-
tions including the very obvious concerns of due process and
proper procedure, all of which will be considered below.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs filed by all parties, I make the following
885KING MANOR CARE CENTER
2 In its brief Charging Party states that the measure of eligibility
agreed to was those employees scheduled to work 16 days in a 22-
day period. Charging Party misreads the record in this regard.
Michelle Perlowitz, Respondent’s bookkeeper, was examined by the
court regarding the basis on which she determined employee eligi-
bility. She very carefully explained even though an employee may
have been scheduled to work the requisite number of days, she ex-
cluded those who failed to work for one reason or another. The court
then asked ‘‘Now is it your testimony . . . the respondent consid-
ered those eligible for welfare payments those who worked sixteen
days in a twenty-two day work cycle?’’ After the 16 was corrected
to 17 Perlowitz answered ‘‘Right.’’ Following discussion as to
whether or not the eligibility formula would be an issue in the case
all parties agreed there would not be and that Respondent’s formula
was acceptable.
FINDINGS OF FACT
I. JURISDICTION
As amended at the hearing, the complaint alleges, Re-
spondent admits (see fn. 1(e)) and therefore I find, that the
Employer operates a nursing home in Neptune, New Jersey,
providing health care and related services to its residents for
which it receives gross revenues in excess of $250,000 annu-
ally. It also annually purchases and receives, directly from
outside the State, goods and materials in excess of $5000.
Accordingly, Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
Although the complaint fails to allege that the Union is a
statutory labor organization, the record contains ample undis-
puted evidence that employees participate in it and that it ex-
ists, in whole or in part, for the purpose of dealing with em-
ployers concerning various terms and conditions of employ-
ment. Accordingly, the complaint is amended, sua sponte, to
reflect these facts and I find that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Unit
The Respondent admits the complaint allegation that it has
been party to a collective-bargaining agreement with the
Union, effective for the period February 19, 1988, to Feb-
ruary 19, 1991, in which it has recognized the Union as the
exclusive bargaining representative on behalf of employees,
not otherwise identified by classification, at the nursing
home. However, since the contract defines the included unit
employees with greater particularity than is recited in the
complaint I find the unit, in accordance with the contract lan-
guage, to be all full-time and regular part-time nursing aides
and dietary workers who work 60 hours or more out of the
regular full-time, 80-hour work period, but excluding all
other employees, clericals, guards, supervisors, registered
nurses, licensed practical nurses, technical and professional
employees, supervisory cooks, instructors, administrative and
executive employees and confidential employees.
I also find the Union is the exclusive representative in the
aforesaid appropriate unit within the meaning of Section 9(a)
of the Act, and the complaint, which omits such allegation
(no doubt an oversight) again is amended sua sponte to re-
flect the Union’s status as such statutory representative, a
matter not in dispute.
B. The Violation
The contract has the following provision:
ARTICLE XVII
WELFARE
17.1 The Nursing Facility will contribute to the
Local 6 Welfare Plan the sume [sic] of Forty Five Dol-
lars ($45.00) per month (or major part thereof) for all
full-time active employees, who are scheduled to work
forty (40) hours per week or more, to provide hos-
pitalization and major medical insurance.
Although the contract was executed on its effective day,
February 19, 1988, the very first payment to the Union was
made on August 17, 1988, in the amount of $2000 to cover
the months of July and August. There is no evidence in the
record concerning the number of employees covered by the
payments nor does the record disclose whether there were el-
igible employees for whom payments were required at an
earlier date.
The next payment made was on July 17, 1989, in the
amount of $1035. In this instance, the face of the check re-
cites that it covered seven employees for September and Oc-
tober 1988 for $315 each month and nine employees for No-
vember 1988 for $405. In terms of the number of employees
eligible for coverage, the parties stipulated that the Employ-
er’s application of the contract language (scheduled to work
40 hours per week or more) to those who actually worked
17 or more days in a 22-day cycle was an acceptable inter-
pretation.2 This formula resulted in more liberal coverage
than called for by the contract. Calculating an 8-hour day as
a standard, the 17 days equate to 136 hours in a monthly
cycle of 22 workdays. This, in turn results in a requirement
of 31.6 hours of work in a week (using 4-1/3 weeks to a
month) or, at most, 34 hours of work in a week (using 4
weeks to a month), somewhat less than the 40 hours per
week called for in the contract.
In effect, the Employer considered those employees eligi-
ble for coverage who worked approximately three-fourths of
a full-time schedule, a formula closely tracking the recogni-
tion clause of the contract. And, in accordance with the lan-
guage of that clause, the coverage was applied to those actu-
ally working the specified hours, not merely scheduled to
work, terminology which conceivably could include employ-
ees who leave the job between creation of a schedule and the
work week one month later. No evidence was offered disput-
ing the Employer’s interpretation of the contract. Accord-
ingly, even apart from the stipulation, under the cir-
cumstances here, that interpretation is perfectly reasonable.
In regard to the number of employees who actually met
the eligibility formula, Perlowitz credibly testified, in con-
junction with original Employer records, that this was deter-
mined by examination of daily work records called ‘‘scrub
sheets.’’ Utilizing these records, Perlowitz compiled sum-
maries for the entire period encompassed by the complaint.
Neither General Counsel nor Charging Party offered any evi-
dence questioning the accuracy of Respondent’s submission.
Although both parties complained about Respondent’s failure
to preserve the monthly work schedules, their complaints do
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 According to information written on the check or based on
Perlowitz’ testimony. It would appear that no payments were made
for the period February 19 through May 1988 and for the months
of August and December 1988. Whether there were eligible employ-
ees working in these months is not known. Consequently, and in the
absence of any explanation, no conclusions can be reached regarding
these ‘‘missing’’ payments.
not substitute for evidence. Respondent was under no obliga-
tion to preserve these schedules absent a subpoena calling for
their production, a standard trial practice that neither party
sought to utilize. Furthermore, these schedules only showed,
for a month in advance, who was scheduled to work, infor-
mation irrelevant to the issues in the case in light of the eli-
gibility formula utilized for obligating welfare payments to
those employees who actually worked. For this purpose, the
‘‘scrub sheets’’ are the most reliable documents and they
were voluntarily produced by Respondent.
The only evidence introduced by General Counsel and
Charging Party relating at all to this issue was testimony by
William Perry, the Union’s president, estimating the size of
the unit at somewhere between 65 and 90 employees. This
evidence is insufficient to refute the Respondent’s evidence
described above. Admittedly, Perry could only guess at the
unit size from attendance at union meetings, these guesses
are unrelated to specific months, Perry could only guess at
the unit which may not necessarily be equivalent to eligi-
bility for welfare payments, and such guesses are, by nature,
far less reliable then records, the accuracy of which remain
unquestioned in the absence of specific and reliable evidence
to the contrary. Accordingly, I place full credence on Re-
spondent’s (Perlowitz’) testimony regarding the number of
unit employees for whom a welfare payment should have
been made and following are the figures for the period cov-
ered by the complaint and prior thereto: For 1989, January—
17, February—20, March—22, April—21, May—22, June—
16, July—17, August—25, September—23, October—22,
November—25, and December 25. For 1990, January—25
and February—32.
As noted, the July 17, 1989 check covered payments due
for September, October, and November 1988. According to
Perry, starting in about February 1988 he orally complained
about Respondent’s failure to make timely payments to
Meyer Rosenbaum, Respondent’s manager, and demanded
that such payments be made. He had about six or eight such
conversations through August 1990. Rosenbaum’s response
was that Respondent was short of money and that anyway
Perry was ‘‘selling’’ the Union and that Respondent might
as well pay the new union. These conversations are
undenied.
Additionally, on August 25, 1989, Perry wrote Respondent
protesting the failure to make contractually required welfare
payments as well as the failure to furnish the names of unit
employees, and requesting immediate compliance with the
request. By letters of October 12 and December 5, 1989,
Perry again demanded welfare payments. On January 30,
1990, Perry wrote Respondent repeating the Union’s demand
for payment of all moneys due as well as for a list of unit
employees. The last letter was written on February 8, 1990,
warning of legal action unless all welfare contribution delin-
quencies were remedied, with interest. Respondent did not
reply to any of these letters except that beginning September
1, 1989, it sent the following checks to the Union, which to-
gether with the July 17, 1989 check, and one dated August
17, 1988, for June and July 1988, are the only payments to
the welfare fund reflected by the record:
Date of Check Amount Period Covered by Check3 Number of Eligible Em-ployees Amount Actually Due
September 1, 1989 $1,665 January 1989 17 $1,665
February 1989 20
September 15, 1989 2,025 March 1989 22 1,935
April 1989 21
October 25, 1989 2,430 May 1989 22 1,710
June 1989 16
August 16, 1990 5,000 July through 17, 25, 23 6,165
=137
December 1989 22, 25, 25
December 4, 1990 5,000 January 1990 25 2,565
February 1990 32
Totals $16,120 312 $14,040
It is readily apparent that when the charge was served on
March 7, 1990, the Respondent was 8 months in arrears hav-
ing last made a payment to the fund in October 1989 for em-
ployees who had worked in June 1989. After service of the
charge Respondent did not make a payment for another 5
months with a total of almost 10 months having elapsed be-
tween payments. By the time of the hearing, Respondent had
finally made sufficient payments to cover all eligible em-
ployees for the 6-month period encompassed by the charge
(approximately September 1989 to March 1990). However,
for employees who had worked September through Decem-
ber 1989, Respondent failed to contribute on their behalf
until August 16, 1990. And for employees who worked Janu-
ary to March 1990, Respondent failed to contribute until De-
cember 1990. Respondent offered no explanation for these
delays in payment, which in some cases spanned almost 1
year, and all we are left with is Perry’s undenied and cred-
ited testimony that Respondent could not afford to, or arbi-
trarily would not, pay the amounts owed in a timely fashion.
Although it appears that eventually Respondent may have
paid about $2000 over the amount owed through December
1990, this is a circumstance not fully explained. According
to Perlowitz, she was directed to send $5000 on August 1990
887KING MANOR CARE CENTER
at which time she phoned Perry for instructions on how to
apportion the money. Perry told her to write on the check
that the sum was ‘‘on account’’ which she did then and on
the December 4 check. Whether the excess money represents
a credit, or is for another purpose, is not at issue.
Discussion
Contrary to Respondent’s argument that the Board process
is not appropriate for cases such as these because they are
nothing more than collection matters arising from a breach
of contract, it is now firmly established that the failure to
make, or delay in making, contractually required fringe bene-
fit payments to fringe benefit funds, constitutes a unilateral
act in violation of Section 8(a)(1) and (5) of the Act which
is not excused by a financial inability to pay. Zimmerman
Painting & Decorating, 302 NLRB 856 (1991). Although the
Board in the cited case acknowledged that althogh not every
contract breach constitutes an unfair labor practice, it held
that the employer’s failure there to make four successive
contractually required trust fund payments violated the Act
and it rejected the defense that such failures were no more
than a de minimis breach of contract.
Similarly, the Respondent here was required by contract to
make monthly payments, an obligation it violated consist-
ently from the time of its first payment in August 1988 until
the last payment shown by this record in December 1990. Of
the seven payments made, none represented a monthly pay-
ment and not one was made on time. For the period covered
by the complaint, payments were delayed for as long as 1
year over the vigorous objection of the Union, evidenced by
Perry’s written and oral demands for prompt payment. This
conduct was substantial and not a de minimis breach of the
contract. Further, although Respondent eventually made full
restitution to the welfare fund for this period of time, it did
so by two payments 4 months apart and almost 1 year after
the amounts came due. Thus, we have a situation where no
payment was made on time, where there were substantial
delays and attendant delinquencies which accompanied every
payment ever made, and where none of the payments can be
said to have followed a regular or predictable pattern. Re-
spondent’s conduct, which was not condoned by the Union,
constitutes a significant disregard for the terms of the con-
tract it had negotiated and therefore supports a finding that
Respondent violated Section 8(a)(5) of the Act in accordance
with the principles of law discussed in Zimmerman Painting,
supra. See also Detroit Cabinet Co., 247 NLRB 1415 (1980)
(delinquent payments over an extended period constitute a
renunciation of the contract obligation with the same force
and in the same manner as is a flat refusal to pay).
Respondent’s affirmative defense that a finding of viola-
tion is barred by the 6-month statute of limitations provided
by Section 10(b) of the Act has no merit. It is not necessary
to consider when, if ever, the Union had clear and unequivo-
cal notice that Respondent would not abide by its contractual
requirement to make monthly payments to the welfare fund.
Where, as here, the charge was filed during the life of the
agreement, every monthly failure to pay triggers a new limi-
tations period and a charge is timely filed with respect to any
such failure without regard to earlier refusals. Each monthly
refusal, or delay as in this case, constitutes a separate and
discreet violation independent of the evidence that may sup-
port earlier violations. Inasmuch as this case does not involve
an alleged repudiation of the entire agreement but only an
unlawful unilateral change of a particular provision, the
‘‘continuing violation’’ doctrine is applicable and therefore
the charge filed and served on March 7, 1990, is timely with
respect to any unilateral changes commencing September 7,
1989, a date 6 months prior to service of the charge on
March 7, 1990. A & L Underground, 302 NLRB 467 (1991).
Although the complaint alleges the violation began on Au-
gust 28, 1989, 6 months prior to filing of the charge in the
Regional Office, this is a minor and insubstantial error not
involving a material issue. Respondent is not prejudiced by
a finding of a violation a mere 7 days later than that alleged,
the real issue concerns the alleged nonpayments and not the
exact date such conduct began, the matter was fully litigated
upon clear notice, and accordingly the complaint is deemed
amended to conform to the evidence regarding the date of
violation. Compare Federal Rules Civil Procedure 15(b) per-
mitting such amendment even after judgment.
The General Counsel’s attempt to remedy an alleged un-
lawful failure to furnish the names of eligible unit employees
and its posttrial motion which seeks a finding of violation re-
garding such alleged failure, is another matter however, and
involves much more than a mere technical error as is the
case regarding the date of violation. Rather, this effort raises
significant and substantial material issues, including Charging
Party’s request that General Counsel be reprimanded or in
some manner censured for failing to place in issue this alle-
gation at an appropriate time. A review of the proceedings
is essential to understand the ramifications of the questions
raised.
The charge, which was filed on February 25, 1990, alleged
simply that Respondent had ‘‘refused to remit contributions’’
to the Union’s health fund. Nine months later, on October
17, 1990, the complaint issued alleging only that Respondent
changed the contract ‘‘by failing to make contributions’’ to
the welfare plan. The hearing opened on January 7, 1991,
and thus, almost a year after the charge the only violation
Respondent was alleged to have committed was the failure
to make payments to the fund. On the first day of trial, at
the time General Counsel placed in evidence Perry’s letters
of August 25, 1989, and January 30, 1990, the court ques-
tioned General Counsel concerning the significance of the re-
quests for information set forth in those letters in light of the
absence of any complaint allegation relating thereto. General
Counsel asserted the request for names and addresses of em-
ployees ‘‘is not directly part of the case’’ and that ‘‘what
we’re seeking here is just the welfare contributions.’’ Coun-
sel stated the only purpose in introducing the letters was
‘‘just to corroborate’’ presumably Perry’s testimony that he
had orally demanded of Respondent that it make welfare
fund payments (as noted the letters also refute Respondent’s
defense that the Union consented to a departure from the
contract language requiring monthly payments). On further
inquiry by the court whether there would be an ‘‘allegation
of a refusal to bargain by failing to furnish names and ad-
dresses’’ General Counsel replied ‘‘we are not going to al-
lege that.’’
The matter was discussed further and Charging Party noted
that the rule of Jefferson Chemical Co., 200 NLRB 992
(1972), precluding subsequent litigation of charges arising
from the same set of facts that could have been discovered
in the prior litigation would operate to its detriment. Al-
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
though Charging Party protested General Counsel’s refusal to
amend the complaint, and sought to adduce evidence on the
issue, Respondent’s objection to such litigation was sustained
because of General Counsel’s position.
On January 14, at the very beginning of the second day
of trial, Charging Party made a lengthy statement critical of
General Counsel’s knowing refusal to amend the complaint
to allege an unlawful refusal to furnish names of unit em-
ployees. Furthermore, according to Charging Party, this was
a clear dereliction of General Counsel’s statutory obligation
requiring, at least, Board comment critical of General Coun-
sel’s handling of the case which left Charging Party without
an opportunity to secure full relief from Respondent’s viola-
tions. In reply, General Counsel stated that he only recently
learned from Charging Party of the refusal to provide the in-
formation, that an allegation of that nature does not come
within the continuing violation theory so as to revive an ex-
pired statute of limitations period, that in this instance the
10(b) 6-month statute of limitations period would apply if the
complaint would now be amended, that the dates of the
Union’s requests for the information were outside the 10(b)
period and accordingly, ‘‘General Counsel decided not to
amend the complaint.’’
The issue surfaced again on April 30, 1991, when during
Respondent’s case, Charging Party voiced its displeasure
over General Counsel’s refusal to amend the complaint be-
cause by so doing the full nature of the violation could not
be addressed. Of particular concern, according to Charging
Party, would be the problems that surely would be encoun-
tered in effecting compliance even if the case was won on
the allegations as it then stood, a matter that Charging Party
had discussed with General Counsel off the record. Although
invited by the court to comment, General Counsel declined
to do so and this issue, to all appearances, was not, had not,
and would not be a part of General Counsel’s case.
However, appearances are not always what they seem to
be, as we were all to learn when the hearing next resumed
on June 19, 1991 (the last day of trial). General Counsel an-
nounced that he ‘‘would like to change the legal theory’’ and
argue ‘‘that inherent and implicit in the Employer’s duty to
contribute to the Union’s welfare fund is also the duty to
identify which employees they are making contributions on
and which employees are entitled to have contributions.’’
General Counsel requested that by way of ‘‘remedy’’ an
order should issue requiring Respondent to furnish the Union
with the names of unit employees on whose behalf welfare
payments had been made as well as those employees eligible
to receive such payments, not to remedy an alleged and
proven unlawful refusal to furnish such materials (for Gen-
eral Counsel did not move to amend the complaint), but on
the theory that such an order was an integral part of the rem-
edy requiring that payments be made. Having earlier stated
that the requirement to furnish the information was not a
‘‘continuing one,’’ and therefore a finding of a violation
based on a refusal to meet such requirement would be barred
by Section 10(b), General Counsel now advanced a theory
that the requirement nevertheless was ‘‘inherent and im-
plicit’’ in the continuing violation of refusing to make pay-
ments which was not barred by Section 10(b).
One would have thought that General Counsel’s newly an-
nounced position also would have supported an amendment
to the complaint to place the issue clearly and unambig-
uously before Respondent on the logical premise that what
is ‘‘inherent and implicit’’ in a continuing violation might
itself arguably also constitute a continuing violation in its
own right. Or, we might have expected an amendment to the
complaint that the refusal to furnish information is closely
related (another way of saying inherent and implicit) to the
refusal to contribute and therefore could be added to the
complaint without a new charge. See Nickles Bakery of Indi-
ana, 296 NLRB 927 (1989), for a fuller discussion of when
a complaint allegation is so ‘‘closely related’’ to the charge
filed as to be considered timely with respect to that charge
notwithstanding some variance between the charge and com-
plaint. But, General Counsel chose again not to amend the
complaint under any theory, seeking relief only by way of
an expanded remedy. At least, that is what everyone, includ-
ing Respondent, was led to believe on the final day of trial.
The Charging Party, in its brief, joined in General Coun-
sel’s request for the relief requested while at the same time
expressing fear the Board may refuse to grant it because of
‘‘GC’s initial failure to amend the complaint, and its assur-
ances to Respondent that it would not pursue this allega-
tion.’’ This fear appears to recognize the existence of a sub-
stantial due process question which, I conclude, controls the
disposition of this issue. In addition, Charging Party’s brief
renewed the request ‘‘that the General Counsel’s question-
able handling of this portion of the case be criticized on the
record,’’ in the event the requested relief is denied.
Having gone half way, General Counsel in his posttrial
brief, for the first and only time, finally went the last mile.
While acknowledging the absence of a complaint allegation
regarding the issue, and although repeating the argument ad-
vanced in requesting a remedy that the duty to supply the in-
formation is inherent in the duty to contribute, it is addition-
ally asserted that ‘‘Respondent violated Section 8(a)(1) and
(5) of the Act by failing to identify the employees who were
eligible for welfare contributions which would have enabled
the Union to ascertain whether the Employer was making the
required contributions to the Union’s Welfare Fund.’’
For the following reasons, I deny what in essence is a mo-
tion to amend the complaint in the manner quoted as well
as the request for a remedy requiring the Respondent to fur-
nish such information.
Unless General Counsel is correct that the duty to furnish
names of employees is ‘‘inherent and implicit’’ in the duty
to make contributions, apparently thereby avoiding the need
to specifically inform Respondent that it must defend against
a separate cause of action (and if that is a correct statement
of the law why the need to allege a violation in the brief),
we must determine if due process has been met in this case.
Unfortunately, General Counsel does not address whether a
due process question exists, nor does he cite a single author-
ity in support of the ‘‘inherent and implicit’’ argument and
I am not aware that such is the case.
The traditional remedy to a failure to contribute to a wel-
fare fund, is to make employees whole for losses suffered as
well as to pay past delinquencies to the fund, see, e.g., Zim-
merman Painting, supra, at least where the union continues
as the bargaining representative, cf. J.R.R. Realty, 301 NLRB
473 fn. 7 (1991). Indeed Detroit Cabinet Co., supra, relied
on by General Counsel as authority for the proposition that
a delinquent payment is as much a unilateral change as is a
nonpayment, demonstrates the need to allege and prove, as
889KING MANOR CARE CENTER
a separate violation, an unlawful refusal to permit an audit
in order to police the contract, or as in the instant case an
unlawful refusal to furnish information, to justify a remedy
for that kind of violation. In a very similar context, the
Board has held precisely that. Lancaster Community Hos-
pital, 303 NLRB 370 (1991), involved a request by General
Counsel for an order requiring the employer to furnish cer-
tain information to the Union as part of the remedy to an un-
lawful refusal to bargain with a newly certified union. De-
spite the fact that case came to the Board on a Motion for
Summary Judgment, I believe the following statement is ap-
plicable here.
Although the duty to bargain includes a corresponding
duty to provide necessary and relevant information, the
Board traditionally has not issued an order specifically
requiring a respondent to provide such information ab-
sent an allegation that the respondent has actually re-
fused to do so. Here, neither the charge nor the com-
plaint contains an allegation that the Union requested or
that the Respondent refused to provide necessary and
relevant information to the Union.
Absent authority to the contrary, I reject as legally
unsupportable, the argument that it is appropriate to compel
a respondent to furnish names of employees eligible for wel-
fare payments as part of the remedy for a violation based
solely on the failure to make timely payments. Accordingly,
it must be determined if Respondent has been accorded due
process before the full relief requested can be granted, purely
as a remedy to the alleged violation as proposed on the last
day of trial, or as remedy to a new violation as proposed in
the brief. Under the peculiar circumstances of this case, par-
ticularly the knowing refusal to timely plead a violation, I
conclude that the issue of unlawfully refusing to furnish in-
formation has not been fully litigated and Respondent’s due
process rights of full and timely notice have not been met,
notwithstanding General Counsel’s request for the remedy in
issue on the last day of trial.
As noted earlier, the Board and the Federal Rules take a
very liberal approach to allowing complaint amendments,
even after trial, to deal with issues that have been fully liti-
gated even though never specifically alleged as a violation in
the complaint. See, e.g., NLRB v. Blake Construction Co.,
663 F.2d 272, 279 (D.C. Cir. 1970). To conclude that a mat-
ter has been fully litigated, however, requires that the Gen-
eral Counsel satisfy the obligation ‘‘to clearly define the
issues and advise an employer charged with a violation . . .
of the specific complaint he must meet and provide a full
hearing upon the issue presented [and the failure to do so]
is . . . to deny procedural due process of law.’’ Soule Glass
Co. v. NLRB, 652 F.2d 1055, 1074 (1981). The court in
Soule discusses at length the notion of procedural due proc-
ess to which respondents are entitled. The factors to be con-
sidered can be summarized as follows; prior notice and an
opportunity to be heard, timely recital of the matters of law
and fact asserted, and a fair opportunity for a defense to be
prepared and litigated. If these elements are lacking, the
Board may not find a violation or take enforcement action.
The test ultimately is one of fairness, a determination that
rests on the facts in each case, the essence of which is
whether or not respondent was provided with a clear and
timely statement of the allegations against it so that it could
prepare and present a defense.
Application of these guiding principles leads me to con-
clude that to compel Respondent to furnish the names of em-
ployees eligible for welfare fund contributions, whether
viewed as a remedy to the violation alleged in the complaint
or to the proposed posttrial amendment to the complaint,
would not be consistent with Respondent’s due process rights
to timely and clear notification of the charges against it so
that it could prepare and litigate a defense. From the filing
of the charge on February 25, 1990, to the issuance of com-
plaint on October 17, 1990, through the trial of the case from
January 7, 1991, up to June 19, 1991, the Respondent was
not alleged to have committed any violation of the Act in
this connection. More than that, Respondent repeatedly was
assured by General Counsel, over the vigorous opposition of
Charging Party, that such conduct was not part of the case
and furthermore that no violation could be found because of
the statutory time limits of Section 10(b) of the Act. Not
only was Respondent not told it was charged with mis-
conduct, it affirmatively was led (or misled) to believe that
its acts and conduct regarding the furnishing of the informa-
tion in issue was not unlawful. Under these circumstances
due process requirements would be turned upside down if
General Counsel’s motions were to granted.
Nor do I consider the request for relief stated at the hear-
ing on June 19, adequate notification to support a contrary
determination. General Counsel’s earlier assertion that a find-
ing of violation was barred by Section 10(b) of the Act was
not withdrawn or modified in any way. Respondent still was
entitled to rely on this position particularly as General Coun-
sel still had not forthrightly sought to amend the complaint.
As it turns out, General Counsel did not then or later support
the request for relief alone with any legal precedent which
may account for the posttrial realization that it would be nec-
essary to amend the complaint to clearly allege a violation
in order to obtain the desired remedy. We can only speculate
on General Counsel’s reasoning just as we can only specu-
late on what defenses (other than Sec. 10(b)) Respondent
might have interposed regarding this issue, or how it may
have litigated the case throughout the first 3 days of trial be-
tween January 7 and April 30. General Counsel can not prof-
it from its self-imposed limitations. It was General Counsel’s
decision to introduce evidence regarding the requests for in-
formation for very limited and collateral purposes and Re-
spondent was informed in the clearest terms that it was not
called upon to explain its refusal, if in fact it did refuse, or
even to dispute the requests themselves. The issue was fore-
closed from litigation for almost 15 months by the acts and
conduct of both Charging Party in failing to file a charge on
this matter and by General Counsel in refusing to issue a
complaint. Respondent thus was precluded from presenting a
proper defense and it would be prejudicial to grant the relief
requested.
Given the way this case was litigated it is even doubtful
General Counsel established prima facie an unlawful refusal
to furnish the information, let alone to conclude that this
issue was fully and fairly litigated on adequate notice. The
June 19 notice for relief was much too late in the litigation,
and insufficiently explicit in light of all that went before, on
which to rest a finding that Respondent was fairly warned of
its potential liability. Obviously the posttrial attempt to
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
amend the complaint, a fortiori, fails any standard of due
process. See Federated Department Stores, 287 NLRB 951
(1987) (no violation of 8(b)(1)(A) based on breach of duty
of fair representation as argued in the brief where complaint
not amended at hearing despite judge’s request to do so al-
though violation found based on refusal to refer a nonmem-
ber from an exclusive hiring hall).
Thus we come to the final, and in a real sense closely re-
lated, issue concerning Charging Party’s requests that Gen-
eral Counsel be cited, or in some manner criticized, for al-
leged mishandling of the prosecution of this case particularly
the refusal to amend the complaint during the course of the
trial.
I find that I lack jurisdiction to entertain these requests. By
Section 3(d) of the Act the Congress has decreed that judicial
review may not be had of the General Counsel’s prosecu-
torial decisions including the issuance of complaints. NLRB
v. Food & Commercial Workers Local 23, 484 U.S. 112
(1987). Clearly, this principle of law, which grants final, ex-
clusive, broad and unreviewable discretion to file and with-
draw complaints to the Regional Director subject to oversight
by the General Counsel, forbids review of these decisions by
the Courts, the Board, and without doubt administrative law
judges. Charging Party does not suggest any contrary author-
ity or argue the inapplicability of the principle to this case.
Notwithstanding that counsel for General Counsel sought to
amend the complaint after the trial to place in issue the very
allegation Charging Party requested and was denied through-
out the trial, thereby perhaps indicating that General Counsel
concedes it was in error by its earlier refusals to amend, the
rule of law barring judicial review nevertheless applies. By
its very nature, a discretionary act allows for the possibility
of an admitted error in judgment (inasmuch as I am not re-
viewing General Counsel’s decision I do not mean to suggest
that any error was committed), but as the Supreme Court ex-
plained, the statutory scheme fashioned by Congress in the
Act, was to vest complete and unreviewable authority in the
General Counsel in order to permit the broadest range of dis-
cretion.
In addition, Charging Party’s failure to exhaust the admin-
istrative review to which it was entitled renders its requests
for judicial review premature. There is nothing in the record
to show that Charging Party appealed the Regional Office’s
earlier refusals to amend the complaint to the office of the
General Counsel and thus it can not maintain that the Gen-
eral Counsel (as distinguished from the Regional Office rep-
resentatives) refused to amend the complaint. Nor did Charg-
ing Party, for that matter, take the simple preliminary step
of filing a charge that unmistakably and unequivocally al-
leged an unlawful refusal to furnish information which would
have put in motion a process that could have resulted in a
decision by the General Counsel in the event the Regional
Director refused to issue a complaint. It would appear to the
most casual observer that to entertain the request for judicial
review as requested by Charging Party easily could lead to
no end of second guessing. Avoidance of this thicket is much
to be desired.
In considering Charging Party’s request for sanctions, no
thought should be entertained that the personal conduct of
counsel for General Counsel, Kessler, is being called into
question. His comportment at the hearing was consistent with
the highest standards of professional behavior and all that is
at issue in this discussion are the prosecutorial decisions
complained of, whether made by Kessler or anyone else au-
thorized to act on behalf of the General Counsel. Further, I
find no support for Charging Party’s request in a letter for-
warded to me by Charging Party authored by an assistant to
the General Counsel in which she expresses her personal
opinion that Kessler’s posttrial brief, although adequate, is
‘‘not up to the Region’s usual high standards’’ and ‘‘could
have been of a higher quality,’’ conditions she attributed to
Agency budgetary problems. This letter was sent to Charging
Party in response to a complaint to the General Counsel
about the quality of the brief and the prosecution of the case.
I decline to be drawn into this controversy beyond that
deemed necessary for the conclusions reached above and find
no reason to comment on or to given any consideration to
the letter in question.
CONCLUSIONS OF LAW
1. Ring Manor Care Center is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. District 6, International Union of Industrial, Service,
Transport and Health Employees is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following employees (the unit) constitute a unit ap-
propriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and part-time nursing aides and dietary
workers who work 60 hours or more out of the regular,
full-time, 80-hour work period, but excluding all other
employees, clericals, guards, supervisors, registered
nurses, licensed practical nurses, technical and profes-
sional employees, supervisory cooks, instructors, admin-
istrative and executive employees and confidential em-
ployees.
4. At all times material, the above-named labor organiza-
tion has been, and is now, the exclusive representative of all
employees in the appropriate unit for purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. The Respondent has committed unfair labor practices
within the meaning of Section 8(a)(5) and (1) by failing and
refusing since September 7, 1989, to make timely payments
to the Local 6 Welfare Plan as required by the collective-bar-
gaining agreement between Respondent and the Union.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. Accord-
ingly, it is recommended that Respondent be ordered to make
all contractually required payments to the welfare plan in a
timely fashion. Inasmuch as the practice of delinquent pay-
ments over an extended period necessarily resulted in the
loss of interest to the plan, Respondent shall be required to
pay interest applicable to such delinquent payments in ac-
cordance with the criteria set forth in Merryweather Optical
891KING MANOR CARE CENTER
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.’’
Co., 240 NLRB 1213, 1216 (1979). I shall also require the
Respondent to make whole any covered unit employee who
may have suffered any loss as a result of the delinquent pay-
ments, Kraft Plumbing & Heating, 252 NLRB 891 (1980),
with such amounts to be computed in the manner set forth
in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), plus interest, as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
General Counsel’s request in his brief for a visitatorial
clause is denied. It is argued that the requirements for grant-
ing such clause are present here, i.e., ‘‘evidence indicating a
likelihood that the Respondent will attempt to evade compli-
ance,’’ Cherokee Marine Terminal, 287 NLRB 1080, 1083
(1988). In support, General Counsel again refers to the re-
jected and nonlitigated, and therefore irrelevant, assertion re-
garding Respondent’s failure to turn over a list of employees.
Moreover, even if that had been found to be a violation it
hardly evidences the likelihood of a future refusal to comply
with an order to furnish such list. In effect, General Counsel
relies on the past violation as evidence of future noncompli-
ance. Such contention is applicable in every case where a
violation is found and those cases requiring extraordinary re-
lief would be indistinguishable from run-of-the-mill cases.
The argument falls of its own weight.
General Counsel next relies on a claim that Respondent
denied General Counsel reasonable access to certain records,
whether during the investigation or trial is not clear. As there
is no supporting record evidence, this statement is mere opin-
ion. Nor is the basis for such opinion presented. Certainly,
Respondent has no statutory obligation to furnish anything to
General Counsel absent a valid subpoena, which is not the
case here. As noted above, Respondent produced, voluntarily,
useful and relevant documents, the scrub sheets, although
General Counsel also wanted to examine the monthly work
schedules which had been destroyed. However, at no time
did General Counsel subpoena these documents, a simple
procedure available, certainly after issuance of complaint. It
is not clear to me why Respondent should be faulted for
these ‘‘missing’’ documents. Furthermore, while there was
some displeasure voiced by General Counsel over the ar-
rangements regarding the voluntary production of the scrub
sheets, it is unthinkable that a special remedy can result
therefrom, particularly because the General Counsel, who
began to question Perlowitz regarding these arrangements,
withdrew that ‘‘line of questioning’’ after being asked to ex-
plain its relevance on objection by Respondent.
Lastly, the General Counsel claims Respondent was un-
willing to assure access to records in the event of a violation.
Here too, no record evidence is relied on to support such as-
sertion which reduces it to another expression of opinion.
Nor am I aware that Respondents’ are required to guaranty
in advance compliance with any order that may issue by the
administrative law judge and/or the Board, or waive court re-
view, under penalty of a special remedy for failing to do so.
Therefore I find no merit to this, or any of the reasons ad-
vanced in support of a visitatorial clause, particularly as the
only violation found is Respondent’s failure to make timely
payments.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, King Manor Care Center, Neptune, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union by fail-
ing and refusing to make timely payments to the Local 6
Welfare Plan from September 7, 1989, as required by its col-
lective-bargaining agreement with the Union.
(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) Reimburse the welfare plan for any interest lost, in the
manner described in the remedy section of this decision, as
a consequence of the failure to make timely payments to the
plan.
(b) Make future payments to the welfare plan in a timely
manner.
(c) Make whole covered unit employees for any loss of
benefits they may have suffered from the failure to make
timely welfare plan payments after September 7, 1989, in the
manner described in the remedy section of this decision.
(d) 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 moneys due under the terms of this Order.
(e) Post at its facility in Neptune, New Jersey, copies of
the attached notice marked ‘‘Appendix.’’5 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.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 and in good
faith with District 6, International Union of Industrial, Serv-
ice, Transport and Health Employees, by failing, since Sep-
tember 7, 1989, to make timely payments to the Welfare
Plan as required by our collective-bargaining agreement with
the Union.
WE WILL NOT make delinquent payments to the welfare
plan on behalf of bargaining unit employees who are eligible
for such payments in accordance with the collective-bargain-
ing agreement. The bargaining unit is:
All full-time and part-time nursing aides and dietary
workers who work 60 hours or more out of the regular,
full-time, 80-hour work period, but excluding all other
employees, clericals, guards, supervisors, registered
nurses, licensed practical nurses, technical and profes-
sional employees and confidential employees.
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 future payments to the welfare plan in a
timely manner.
WE WILL reimburse the welfare plan for interest lost as a
consequence of our delinquent payments.
WE WILL make whole covered unit employees for any loss
of benefits they may have suffered from our failure to make
timely welfare plan payments after September 7, 1989.
KING MANOR CARE CENTER