Lakeview Convalescent Center

National Labor Relations Board - Board Decisions

May 15, 1992

307 N.L.R.B. 563 (N.L.R.B. 1992)

563
307 NLRB No. 96
LAKEVIEW CONVALESCENT CENTER
1 Unless otherwise stated, all dates refer to 1991.
2 Sec. 9.01 of the agreement (‘‘Health Insurance’’) stated that:
The Employer will provide and pay for, at its own expense,
Blue Cross/Blue Shield Medallion Program coverage for all em-
ployees and dependents during any period that the employee is
employed.
. . . .
The Employer may not change or modify such coverage pro-
vided herein without the mutual consent of the Union.
3 Grosso is an admitted supervisor and agent of the Respondent.
4 In the letter, Grosso also offered to arbitrate the issue and to re-
instate the Blue Cross plan if ordered to do so by the arbitrator.
Lakeview Convalescent Center and Hospital Profes-
sionals and Allied Employees of New Jersey,
AFT/AFL–CIO. Case 22–CA–17799
May 15, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
Upon a charge filed by the Union June 21, 1991,1
the General Counsel of the National Labor Relations
Board issued a complaint against Lakeview, the Re-
spondent, alleging that it has violated Section 8(a)(5)
and (1) of the National Labor Relations Act by chang-
ing the health insurance program applicable to unit
employees without notifying the Union or obtaining its
consent. The Respondent filed an answer, admitting in
part and denying in part the allegations of the com-
plaint.
On January 27, 1992, the General Counsel filed a
Motion for Summary Judgment with supporting memo-
randum and exhibits. On January 30, 1992, the Board
issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a re-
sponse, and the Union filed an opposition to the re-
sponse.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
The Respondent has admitted most of the allegations
in the complaint. Thus, it is undisputed that the Union
is the exclusive collective-bargaining representative of
the Respondent’s registered nurses and licensed prac-
tical nurses. The Respondent and the Union were par-
ties to a collective-bargaining agreement covering the
unit employees, which was effective from January 1,
1990, to January 1, 1992. The agreement contains a
provision for a Blue Cross/Blue Shield Medallion
health insurance plan. About June 13, 1991, the Re-
spondent changed the health insurance plan by dis-
continuing the Blue Cross/Blue Shield Medallion cov-
erage and substituting a self-insured plan administered
by Medway Insurance Corp. The Medway plan pro-
vides improved child care coverage in comparison to
the Blue Cross/Blue Shield Medallion plan.
The complaint also alleges that the Respondent al-
tered the health insurance plan without notice to the
Union and without having obtained the Union’s con-
sent to the changes, as required by the collective-bar-
gaining agreement2 In its answer, the Respondent de-
nies those allegations.
In his memorandum in support of the Motion for
Summary Judgment, the General Counsel acknowl-
edges that the Respondent denies having acted unilat-
erally. The General Counsel argues, however, that the
Respondent has effectively admitted that it acted with-
out the Union’s consent. Thus, according to the undis-
puted allegations in the General Counsel’s memo-
randum, the Respondent’s administrator, Richard F.
Grosso Jr.,3 informed employees on May 23 that the
Respondent would change the health coverage from
Blue Cross to grievance dated May 24, and insisting
that no changes be made in health coverage. The par-
ties then agreed to submit the issue to the unit employ-
ees. The Union informed the Respondent, by letter
dated June 13, that the employees had unanimously re-
jected the proposed new coverage on June 12. In a let-
ter dated June 14, Grosso informed the Union that ‘‘In
anticipation of the nurses acceptance of this new
[Medway] coverage we have already cancelled the Me-
dallion coverage effective July 1, 1991.’’4 In light of
this purported admission, the General Counsel urges
that there is no genuine issue of fact regarding the uni-
lateral nature of the Respondent’s actions.
In its response to the Notice to Show Cause, the Re-
spondent argues that the complaint should be dis-
missed because the Respondent and the Union have
agreed to settle the unilateral change issue. The Re-
spondent also argues that, since the complaint issued,
the Union has agreed in collective-bargaining negotia-
tions to accept the Medway plan, and therefore that the
complaint allegations should be considered moot. Ac-
cordingly, the Respondent requests that the complaint
be dismissed, or that the proceeding be delayed until
the Respondent and the Union are able to effect a
withdrawal of the charge. In the alternative, the Re-
spondent requests (without further elaboration) that the
Motion for Summary Judgment be denied ‘‘based on
the facts and applicable law.’’
In its opposition to the response, the Union concedes
that the parties bargained for and achieved a collective-
bargaining agreement, but asserts that the Respondent
has refused to sign the agreement and has reneged on
the article concerning health insurance. The Union
therefore opposes denial of the Motion for Summary
564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Health insurance plans constitute terms and conditions of em-
ployment, and therefore are mandatory subjects for collective bar-
gaining. Therefore, any change in the contractual health program, in-
cluding a change in the plan’s carrier, during the life of the contract,
without the Union’s consent, violates Sec. 8(a)(5). See, e.g., Aztec
Bus Lines, 289 NLRB 1021, 1037 (1988). The Respondent admits
that it changed the material terms of the health plan, as well as the
carrier.
6 See Lorenz Schneider Co., 209 NLRB 190 fn. 3 (1974), enf. de-
nied on other grounds 517 F.2d 445 (2d Cir. 1975); Farah Mfg. Co.,
203 NLRB 543, 544 fn. 9 (1973), enf. denied on other grounds 491
F.2d 595 (5th Cir. 1974).
7 For the purpose of ruling on the Motion for Summary Judgment,
we construe all controverted factual allegations in the light most fa-
vorable to the Respondent.
8 See Sec. 101.9 of the Board’s Statements of Procedure.
9 See Iron Workers Local 455 (Simpson Metal Industries), 237
NLRB 147, 152–153 (1978).
Judgment and the dismissal or delay in processing of
the complaint.
Summary judgment may be rendered if the plead-
ings and supporting materials establish that there is no
genuine issue requiring a hearing and, therefore, that
the moving party is entitled to judgment as a matter
of law. In the instant case, we find that no genuine
issue remains concerning the unilateral nature of the
Respondent’s change in the health insurance coverage5
As we have noted, the General Counsel in his memo-
randum in support of the Motion for Summary Judg-
ment alleges that the Respondent and the Union had
agreed to submit the issue to a vote of the unit em-
ployees, and that, despite that agreement, Grosso in-
formed the Union on June 14, without waiting for the
results of the vote, that the Respondent had already
cancelled the contractually mandated Blue Cross plan.
The General Counsel also notes that Grosso’s letter
makes clear that the Respondent was aware that the
employees had rejected its proposed switch to Medway
coverage. The Respondent, in its response to the No-
tice to Show Cause, does not controvert, or even men-
tion, these allegations of the memorandum. Thus, al-
though the Respondent in its answer to the complaint
denies that it acted unilaterally and without the
Union’s consent, we find that it has subsequently aban-
doned that position.6
We also find that the Respondent’s claims that the
Union has agreed to accept the Medway plan and that
the parties have voluntarily agreed to settle the case do
not raise genuine issues precluding summary judg-
ment7 To begin render this case moot. The Respond-
ent’s unilateral change in the health insurance plan was
unlawful whether or not the Union agreed, months
later, to accept the new plan. That agreement would af-
fect only the remedy imposed, not the underlying vio-
lation.
The Respondent’s ‘‘settlement’’ argument is simi-
larly devoid of force. Even should we assume (again
without deciding) that the parties have, in fact, agreed
to settle the case, there is no evidence of the terms of
the agreement. Nor does the Respondent contend that
it ever submitted the agreement to the Board or to the
Regional Director for approval, or that it was deprived
of the opportunity to do so.8 The Respondent has al-
leged, in the end, nothing more than an agreement to
settle the case (on unspecified terms), not a settlement
agreement. That sort of understanding does not pre-
clude the Board from addressing and deciding the mer-
its of the case.9
In summary, we find that there is no genuine issue
of fact requiring resolution at a hearing, because the
Respondent has admitted, or no longer denies, that it
unilaterally, and without the Union’s consent, changed
the health insurance plan applicable to unit employees,
in violation of the express terms of the collective-bar-
gaining agreement. Even if, as the Respondent asserts,
the Union has since accepted the Medway plan in
place of the Blue Cross plan, and the parties have
agreed to settle the case, neither of those circumstances
would preclude a grant of summary judgment. We
therefore grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, has an office and
place of business in Wayne, New Jersey, where it op-
erates a nursing home. During the 12 months pre-
ceding the issuance of the complaint, the Respondent
in the course and conduct of its business operations
just described, derived gross revenues in excess of
$100,000 and purchased and received at its Wayne,
New Jersey facility products, goods, and materials val-
ued in excess of $5000 directly from points outside of
New Jersey. We find that the Respondent is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union
is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent con-
stitute a unit appropriate for collective bargaining with-
in the meaning of Section 9(b) of the Act:
All full-time and regular part-time Registered
Nurses and Licensed Practical Nurses, including
Charge Nurses employed by the Respondent its
[sic] its Wayne, New Jersey location, but exclud-
ing all office clerical employees, guards and su-
pervisors as defined in the Act, and all other em-
ployees.
On September 12, 1977, the Union was certified as
the exclusive collective-bargaining representative of
565LAKEVIEW CONVALESCENT CENTER
10 Our assumption, above, that the Union had agreed to substitute
the Medway plan for the Blue Cross plan was only for the purpose
of ruling on the Motion for Summary Judgment. We did not find
as a fact that such an agreement had been reached, let alone that
it had been reached as a result of good-faith bargaining. Whether or
not the Respondent will be required to reinstate the Blue Cross plan
is a question that can be litigated in compliance proceedings.
11 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
Continued
employees in the unit. At all times since September 12,
1977, the Union, by virtue of Section 9(a) of the Act,
has been, and is, the exclusive representative of em-
ployees in the unit for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of em-
ployment.
The Respondent and the Union were parties to a col-
lective-bargaining agreement covering employees in
the unit, which was effective from January 1, employ-
ment, including a Blue Cross/Blue Shield Medallion
health insurance plan, which is a mandatory subject for
collective bargaining. About June 13, 1991, the Re-
spondent changed health insurance plans from Blue
Cross/Blue Shield Medallion coverage to a self-insured
plan administered by Medway Insurance Corp. The
Medway plan changed the existing health coverage for
unit employees by, inter alia, improving child care
coverage. The Respondent effected the change in
health insurance coverage without prior notice to the
Union and without having obtained the Union’s con-
sent as required by the collective-bargaining agree-
ment.
By unilaterally, and without the Union’s consent,
changing the contractual health insurance coverage ap-
plicable to employees in the unit, the Respondent has
failed and refused to bargain in good faith with the
certified representative of its employees, and has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing to bargain in good faith with
the Union by unilaterally changing unit employees’
health insurance, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. Specifi-
cally, we shall order the Respondent, at the Union’s re-
quest, to reinstate the Blue Cross/Blue Shield Medal-
lion health insurance plan for unit regarding the unit
employees’ health insurance coverage, the Respondent
need not reinstate the Blue Cross/Blue Shield Medal-
lion plan.10 We shall also order the Respondent to
make the unit employees whole, with interest, for any
expenses they may have incurred as a result of the Re-
spondent’s unlawful change in health insurance plans,
as set forth in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir.
1981), and New Horizons for the Retarded, 283 NLRB
1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Lakeview Convalescent Center, Wayne,
New Jersey, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Unilaterally, without notice to Hospital Profes-
sionals and Allied Employees of New Jersey,
AFT/AFL–CIO (the Union), and without obtaining the
Union’s consent, changing the health insurance cov-
erage provided for in any collective-bargaining agree-
ment applicable to employees in the following appro-
priate unit:
All full-time and regular part-time Registered
Nurses and Licensed Practical Nurses, including
Charge Nurses employed by the Respondent its
[sic] its Wayne, New Jersey location, but exclud-
ing all office clerical employees, guards and su-
pervisors as defined in the Act, and all other em-
ployees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) At the Union’s request, reinstate the Blue
Cross/Blue Shield Medallion health insurance coverage
provided for in the collective-bargaining agreement
that expired January 1, 1992; provided, however, that
nothing in this Order shall require the Respondent to
reinstate the Blue Cross/Blue Shield Medallion cov-
erage if the Respondent and the Union have reached
an agreement that is outstanding and enforceable re-
garding health insurance coverage for the unit employ-
ees.
(b) Reimburse the unit employees, with interest, for
any expenses they may have incurred as a result of the
Respondent’s unlawful change in their health insurance
coverage, as prescribed in the remedy portion of this
decision.
(c) Post at its facility in Wayne, New Jersey, copies
of the attached notice marked ‘‘Appendix.’’11 Copies
566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
of the notice, on forms provided by the Regional Di-
rector for Region 22, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 al-
tered, 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 Re-
spondent has 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 violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
WE WILL NOT unilaterally, without notice to Hos-
pital Professionals and Allied Employees of New Jer-
sey, AFT/AFL–CIO (the Union), and without obtaining
the Union’s consent, change the contractually man-
dated health insurance coverage of employees in the
following appropriate bargaining unit:
All full-time and regular part-time Registered
Nurses and Licensed Practical Nurses, including
Charge Nurses employed by us at our Wayne,
New Jersey location, but excluding all office cler-
ical employees, guards and supervisors as defined
in the Act, and all other employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, at the Union’s request, reinstate the Blue
Cross/Blue Shield Medallion health insurance coverage
for unit employees set forth in the collective-bar-
gaining agreement that expired January 1, 1992, unless
we have reached an agreement with the Union that is
outstanding and enforceable regarding your health in-
surance coverage.
WE WILL reimburse the unit employees, with inter-
est, for any expenses they may have incurred as the re-
sult of our unlawful change of their health insurance
coverage.
LAKEVIEW CONVALESCENT CENTER