Staffco of Brooklyn, LLC

National Labor Relations Board - Administrative Judge Opinions

May 21, 2015

29-CA-134148 (N.L.R.B. May. 21, 2015)

JD(NY)–22–15
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
NEW YORK BRANCH OFFICE
DIVISION OF JUDGES
STAFFCO OF BROOKLYN, LLC
and Case 29–CA–134148
NEW YORK STATE NURSES ASSOCIATION
Kimberly Walters, Esq.,
for the General Counsel.
Nicholas M. Reiter, Esq.
(VENABLE, LLP)
for the Respondent.
Kate M. Swearengen, Esq.
(Cohen Weiss and Simon, LLP),
for the Charging Party.
DECISION
Statement of the Case
KENNETH W. CHU, Administrative Law Judge. This case was tried in Brooklyn, New York,
on February 10, 2015. The charge was filed on August 5, 2014,1 and the complaint was issued
by the National Labor Relations Board (Board or NLRB) for Region 29 on October 31, 2014.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the parties, I make the following
Findings of Fact
I. Jurisdiction and Union Status
The Respondent, a corporation, is engaged as a professional employer organization at
its facility in Brooklyn, New York,2 where it annually provides services valued in excess of
$50,000 to the State University of New York (SUNY), downstate medical center, a governmental
entity which directly engages in interstate commerce. The Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of Section 2(5) of the Act.

1 All dates are in 2014 unless otherwise indicated.
2 The Respondent avers that its principal place of business is at 112 Pacific Street,
Brooklyn, New York 11201 and not as stated in the complaint.
JD(NY)–22–15
2
II. Alleged Unfair Labor Practices
The complaint alleges that StaffCo of Brooklyn, LLC (Respondent or StaffCo) violated
Section 8(a)(5) and (1) of the National Labor Relations Act (Act) when since about May 22, the
Respondent unilaterally modified the terms and conditions of employment of the bargaining unit 5
as set forth in the expired collective-bargaining agreement and the contract extension
agreements by failing and refusing to make contributions to the pension fund on behalf of unit
employees without first bargaining with the Union to an overall good-faith impasse for a
successor agreement (GC Exh.1 at C).3 The Respondent filed a timely answer denying the
material allegations in the complaint (GC Exh. 1 at E).10
III. Relevant Stipulated Facts
The parties stipulated to a number of facts which not all are relevant to this
determination (Jt. Exh. Y; Tr. 8). The highlighted stipulated facts are as follow15
1. StaffCo is a registered New York State Professional Employer Organization.
2. The State University of New York (SUNY) operates SUNY Downstate Medical
Center (SUNY Downstate), which is an academic medical center comprising of colleges,20
graduate schools, hospitals, and other health care facilities.
3. On May 29, 2011, SUNY acquired Long Island College Hospital (LICH) in Brooklyn,
New York.
25
4. SUNY Downstate operated LICH from approximately May 29, 2011, until on or about
October 31, 2014.
5. In connection with its acquisition of LICH, SUNY Downstate contracted with StaffCo to
hire and employ the nonphysician staff at the LICH facilities.30
6. On May 29, 2011, StaffCo hired substantially all of the non-physician staff at the LICH
facilities.
7. StaffCo recognized NYSNA (Union) as the collective-bargaining representative for a 35
bargaining unit of registered nurses and Nurse practitioners.4

3 The exhibits for the General Counsel are identified as “GC Exh.” The exhibits for the
Respondent and Charging Party are identified as “R Exh.” and “CP Exh.” respectively. Joint
exhibits are identified as “Jt. Exh.” The hearing transcript is referenced as “Tr.” and closing
briefs are identified as “GC Br.,” “CP Br.” and “R Br.”
4 The Respondent admits to the composition of the unit as “All full-time, regular part-time
and per diem registered professional nurses, temporary employees, as defined in Section 4.04
of the collective bargaining agreement, and persons authorized by permit to practice as
registered professional nurses, including staff nurses, assistant nursing care coordinators, case
managers, and community health coordinators, and nurse practitioners and Nurse Midwives
employed by the Employer at the SUNY Downstate at Long Island College Hospital, and
excluding supervisory, confidential, executive and managerial employees, and all other
employees, guards and supervisors within the meaning of the National Labor Relations Act.”
JD(NY)–22–15
3
8. After recognition, StaffCo and NYSNA negotiated and executed a collective-
bargaining agreement (CBA) effective May 29, 2011 through May 28, 2012 (Jt. Exh. A).
9. Pursuant to the CBA, StaffCo agreed to participate in the NYSNA Pension Plan and,
accordingly, make contributions to the NYSNA Pension Plan. Section 9.02 of the CBA required 5
StaffCo to complete an acknowledgement form and become bound by the terms and provisions
of the “Agreement and Declaration of Trust.”
10. The NYSNA Pension Plan includes in its “Requirements for Admission” that, in order
for StaffCo to participate as a contributing employer to the NYSNA Pension Plan, StaffCo 10
needed to execute an acknowledgement of trust agreement and a collective-bargaining
agreement between StaffCo and NYSNA that included certain information set forth in the
“Requirements for Admission” (Jt. Exh C).
11. The NYSNA Pension Plan’s “Requirements of Admission” also required that nothing 15
in the CBA be inconsistent with “the provisions of the trust agreement and the Plan.”
12. Pursuant to article 15 of the (Second Restated) NYSNA Pension Plan, the method
for calculating a participating employer’s withdrawal liability is dependent upon the length of
participation in the NYSNA Pension Plan. In the event an employer participates for less than 320
years, its withdrawal liability is determined based upon the assets and liabilities in the NYSNA
Pension Plan attributable to the employer on the actual date of withdrawal instead of the
employer's pro rata share of the NYSNA Pension Plan's total unfunded vested benefits (Jt. Exh.
D at 96).
25
13. Shortly after executing the CBA with NYSNA, StaffCo completed and executed an
Acknowledgment of Trust Agreement for the NYSNA Pension Plan pursuant to which it became
bound to the terms and provisions of the "Agreement and Declaration of Trust" establishing the
NYSNA Pension Plan (on Jan. 13, 2012) (Jt. Exh. B).
30
14. Prior to the CBA, the trustees of the NYSNA Pension Plan also adopted a ''Policy for
Continuation of Coverage Upon Expiration of a Collective Bargaining Agreement," which set
forth, inter alia, the conditions upon which NYSNA Pension Plan coverage would continue in the
event of an expiration of a collective bargaining agreement or an interim agreement between
NYSNA and an employer (Jt. Exh. F).535
15. On August 22, 2012, StaffCo and NYSNA executed a contract extension agreement
pursuant to which the terms and conditions of the collective-bargaining agreement were
extended effective May 29 through December 31, 2012 (Jt. Exh. G)
40
16. On September 6, 2012, the NYSNA Pension Plan sent StaffCo and NYSNA a letter
notifying the recipients that StaffCo's participation in the NYSNA Pension Plan would terminate
if the NYSNA Pension Plan did not receive a new fully executed collective-bargaining
agreement or interim agreement between NYSNA and StaffCo on or before the expiration of the
contract extension agreement on December 31, 2012. Enclosed within the NYSNA Pension 45
Plan's September 6, 2012 letter to StaffCo and NYSNA was: (1) the NYSNA Pension Plan's

5 The policy for continuation of coverage essentially states that the Respondent may
continue to participate in the NYSNA Pension Plan after the expiration of the collective-bargaing
agreement if the employer continues to make contributions to the plan and submits a new
agreement, contract extension, or an interim agreement.
JD(NY)–22–15
4
"Policy tor Continuation of Coverage upon Expiration of a Collective Bargaining Agreement," (2)
a form interim agreement, and the NYSNA Pension Plan's "Agreement and Declaration of Trust"
(Jt. Exh. H).
17. On December 3, 2012, StaffCo and NYSNA executed an interim agreement effective 5
January 1, 2013 through June 30, 2013 (Jt. Exh. I).
18. In February 2013, the SUNY Board of Trustees approved the closure of LICH to
address SUNY Downstate Medical Center's budget deficit and on February 20, 2013, SUNY
Downstate submitted its closure plan for LICH to the New York State Department of Health.10
19. On February 20, 2013, NYSNA (among other petitioners) commenced a lawsuit to
enjoin SUNY Downstate's closure of the LICH facilities.
20. On February 20, 2013, through the NYSNA lawsuit, NYSNA obtained a temporary 15
restraining order enjoining SUNY Downstate's closure of the LICH facilities. The NYSNA lawsuit
delayed the LICH closure date several times throughout 2013 and 2014.
21. On March 19, 2013, StaffCo notified its employees, including NYSNA's members, in
writing regarding the imminent closure of the LICH facilities and associated layoffs pursuant to 20
the Worker Adjustment and Retraining Notification Act ("WARN").
22. StaffCo issued revised WARN notices to its employees on several occasions
throughout 2013 and 2014 due to delays of the LICH closure date associated with SUNY
Downstate's negotiation for a sale to potential bidders and applications for injunctive relief in 25
connection with the NYSNA lawsuit.
23. On April 30, 2013, the NYSNA Pension Plan sent StaffCo and NYSNA a letter
notifying the recipients that StaffCo's participation in the NYSNA Pension Plan would terminate
if the NYSNA Pension Plan did not receive a new fully executed collective-bargaining30
agreement or interim agreement on or before the expiration of the interim agreement on June
30, 2013. Enclosed within the NYSNA Pension Plan's April 30, 2013 letter to StaffCo and
NYSNA was, among other things, the NYSNA Pension Plan's "Policy for Continuation of
Coverage upon Expiration of a Collective Bargaining Agreement" and a form second interim
agreement (Jt. Exh. J).35
24. On May 30, 2013, StaffCo and NYSNA executed a second interim agreement
effective July I December 31, 2013, in order to permit StaffCo's continued participation in the
NYSNA Pension Plan pursuant to the NYSNA Pension Plan's "Requirements for Admission"
and "Policy for Continuation of Coverage upon Expiration of a Collective Bargaining Agreement"40
(Jt. Exh. K).
25. On December 1, 2013, the NYSNA Pension Plan sent a letter to StaffCo and NYSNA
notifying the recipients that StaffCo's participation in the NYSNA Pension Plan would terminate
if the NYSNA Pension Plan did not receive a new fully executed collective-bargaining 45
agreement or interim agreement on or before the expiration of the second interim agreement on
December 31, 2013 (Jt. Exh. L).
26. Also on December 1, 2013, the NYSNA Pension Plan sent a memorandum to
NYSNA's members employed at StaffCo notifying them that their coverage under the NYSNA 50
Pension Plan would terminate if the NYSNA Pension Plan did not receive a new fully executed
collective-bargaining agreement or interim agreement on or before the expiration of the second
JD(NY)–22–15
5
interim agreement on December 31, 2013 (Jt. Exh. M).
27. On December 27, 2013, StaffCo and NYSNA executed a Contract Extension
Agreement pursuant to which the terms and conditions of the CBA were extended effective
January 1, 2013 through March 31, 2014 (Jt. Exh. N).5
28. On February 21, 2014, the parties to the NYSNA lawsuit reached a settlement
agreement pursuant to which SUNY and SUNY Downstate agreed to keep the LICH facilities
open until at least May 22, 2014.
10
29. On March 13, 2014, StaffCo and NYSNA executed a contract extension agreement
pursuant to which the terms and conditions of the CBA were extended effective April 1 through
May 22, 2014. The contract extension agreement executed on March 13, 2014, provided that
nothing in the collective-barganing agreement or in the interpretation thereof shall be deemed to
be inconsistent with the provisions of the NYSNA Pension Plan Trust Agreement and the 15
NYSNA Pension Plan (Jt. Exh. O).
30. On April 22, 2014, the NYSNA Pension Plan sent StaffCo and NYSNA a letter
notifying the recipients that StaffCo's participation in the NYSNA Pension Plan would terminate
if the NYSNA Pension Plan did not receive a new fully executed collective-bargaining 20
agreement or interim agreement on or before the expiration of the most recent contract
extension agreement on May 22, 2014 (Jt. Exh. P).
31. Also on April 22, 2014, the NYSNA Pension Plan sent a memorandum to NYSNA's
members employed at StaffCo notifying them that their coverage under the NYSNA Pension 25
Plan would terminate if the NYSNA Pension Plan did not receive a new fully executed collective-
bargaining agreement or interim agreement on or before the expiration of the most recent
contract extension agreement on May 22, 2014 (Jt. Exh. Q).
32. On May 22, 2014, the NYSNA Pension Plan sent a letter to StaffCo and NYSNA 30
notifying the recipients that, pursuant to the NYSNA Pension Plan's "Policy for Continuation of
Coverage Upon the Expiration of a Collective Bargaining Agreement," StaffCo's participation in
the NYSNA Pension Plan had terminated as a result of the expiration of the contract extension
agreement between StaffCo and NYSNA on May 22, 2014, without the submission of a new
fully executed collective-bargaining agreement or interim agreement. The same May 22, 2014 35
letter further notified StaffCo and NYSNA that StaffCo could rejoin the NYSNA Pension Plan
without any interruption of pension benefits in the event the parties submitted a new collective-
bargaining agreement within 60 days of the date of the letter (Jt. Exh. R).
33. The 60-day period for submission of a new collective-bargaining agreement to the 40
NYSNA Pension Plan following the expiration of the contract extension agreement on May 22,
2014, ended on July 21, 2014.
34. On May 30, 2014, the NYSNA Pension Plan sent a memorandum to NYSNA's
members employed at StaffCo notifying them that their coverage under the NYSNA Pension 45
Plan terminated effective May 22, 2014, because of the expiration of the contract extension
agreement between StaffCo and NYSNA on May 22, 2014, without the submission of a new
fully executed collective-bargaining agreement or interim agreement (Jt. Exh. S)
35. On July 28, NYSNA and StaffCo attended a labor management committee meeting 50
at StaffCo's offices.
JD(NY)–22–15
6
36. On July 31, 2014, NYSNA sent StaffCo a letter requesting information in order to
prepare for negotiations regarding a successor agreement to the -argaining agreement that
expired on May 22, 2014 (Jt. Exh. Y).
37. On September 3, 2014, NYSNA and StaffCo attended a labor management 5
committee meeting and on September 22, 2014, NYSNA and StaffCo participated in a
collective-bargaining session. At the September 22 session, NYSNA proposed that, on or
before September 31, 2014, StaffCo resume making payments into the NYSNA Pension Plan
retroactive to May 22, 2014.
10
38. On October 28, 2014, the New York State Attorney General and Comptroller
provided the requisite approvals for SUNY Downstate's sale of the LICH facilities.
39. As of October 31, 2014, StaffCo no longer employed any of NYSNA's members at
the LICH facilities. StaffCo continued to employ, pursuant to its staffing contract with SUNY 15
Downstate, four NYSNA members as nurse practitioners at StaffCo's "school-based" programs.
40. From October 31, 2014 through the date of this stipulation, StaffCo employs four
NYSNA members as nurse practitioners, all of whom are employed at StaffCo's "school-based"
programs pursuant to StaffCo's staffing contract with SUNY Downstate. All four of the NYSNA 20
members described in this paragraph fall within the bargaining unit described in Section 1 of the
NYSNA-StaffCo collective-bargaining agreement effective May 29, 2011- May 28, 2012.
41. On November 11, 2014, NYSNA and StaffCo participated in a collective-bargaining
session. At that session, the parties discussed health and retirement benefits and the pension 25
plan and StaffCo proposed that NYSNA members participate in its 403(b) retirement plan.
42. Following continued negotiations between November 11 and December 22, 2014,
NYSNA and StaffCo reached an agreement regarding health insurance benefits for NYSNA's
members.30
IV. Positions of the Parties
The General Counsel contends that the Respondent violated Section 8(a)(5) and (1) of
the Act when it refused to maintain the status quo with respect to the terms and conditions of 35
employment by failing to contribute to the NYSNA Pension Plan after the expiration of the
collective-bargaining agreement. The General Counsel further contends that the Union never
clearly and unmistakenly waived its right to bargain over the pension contribution and the
parties never came to lawful impasse during negotiations on a successor agreement when the
Respondent unilaterally modified the terms and conditions of the expired contract since May 22.40
The Respondent argues that the NYSNA pension plan requires that NYSNA and the
employer have either a collective-bargaining agreement or an interim agreement in effect for the
employer to continue contributing to the pension plan. The Respondent contends that StaffCo
was not obligated or permitted to contribute to the plan after the expiration of the agreement45
without an extension or an interim agreement. The Respondent further contends that NYSNA
waived its right to bargain over this subject matter because it had received notice of the pending
termination of the pension contributions by the pension fund prior to May 22 due to the
expiration of the CBA and the Union did nothing to begin bargaining over the terms of a new
agreement or seek an interim agreement. 50
V. Testimony of Witnesses
JD(NY)–22–15
7
Eric Smith (Smith) testified that he was and is the lead program representative for
NYSNA and was intimately involved with representing the bargaining unit since July 2013 in all
matters such as negotiations for contracts, grievances, arbitrations and union organizing. He
assisted in the negotiations for the three contract extensions to the agreement. He testified that 5
the meetings with StaffCo representatives were more frequent in 2014 when the closure of LICH
became imminent. Smith stated that the first major layoff occurred on April 12 and 55 percent of
the bargaining unit employees were let go. He testified to a meeting with the Respondent on
May 20 regarding the additional layoff of 42 unit employees by May 22.6 Smith indicated that
David Pappalardo (Pappalardo), Francesca Tinti (Tinti) and Barbara Maffai were in attendance 10
for the Respndent 7(Tr. 26–30).
While the parties’ focus was on coordinating the layoff of 42 employees, Smith remarked
to the StaffCo representatives that the employer needs to remain current on its pension
contributions and to execute another extension by May 22, which was the expiration date of the 15
contract extension. At that time, the contract extension was from April 1 through May 22 (Jt.
Exh. O).8 Smith testified that on previous contract extensions with StaffCo, he would request of
the Respondent to get an extension signed and a contract extension would be executed at a
later date (Tr. 54).
20
Smith testified that StaffCo representatives never stated at the May 20 meeting that the
Respondent would refuse to sign an extension agreement. Smith further testified that the
Respondent never stated that it would cease its contribution to the pension fund. Smith repined
that Pappalardo refused to state whether StaffCo would continue the pension contributions or
execute a new agreement and referred him to Brian Clark (Clark), the counsel for the 25
Respondent at the time (Tr. 30–32). Smith testified that he informed Michelle Green (Green)9,
who was the intermediary for the Union and StaffCo, to contact Clark (Tr. 55–57).
As stipulated, four unit school-based nurse practitioners remained after the May 22
deadline. Smith testified that the Union and StaffCo met on July 9 to discuss the aftermath of 30
the layoffs regarding such items as terminal benefits payouts, proper payout amounts and the
staffing of the emergency room, which had remained open after the closure. Smith testified that
the employer continued to maintain the terms and conditions of employment under the expired
contract for the four employees except for the contribution to the pension fund. Smith said that
he raised this issue at the July 9 meeting and was told that the withdrawal liability was a major 35
concern for StaffCo and the employer “. . . weren’t going to get current” with its contribution to
the pension fund10 (Tr. 34, 35).

6 Smith testified that there was no point in negotiating a new agreement and the parties had
agreed to limit the third extension from April 1 through May 22 because the parties anticipated
that May 22 would be a major layoff date with the LICH facility closing on that date (Tr. 32, 33).
7 At the time, Pappalardo was the executive vice president and Tinti was and is the assistant
HR vice president.
8 The Union, employer and NYSNA members were informed on April 22 by the NYSNA
pension fund that a new agreement or a contract extension was required before the May 22
expiration date of the CBA (Jt. Exh. P). Smith said that the Union waited until the May 20
meeting before requesting the employer for a contract extension (Tr. 53).
9 Green held various positions with the Union and was the associate director of special
projects during the 2013-2014 timeframe (Tr. 78, 79).
10 Smith did not identify the StaffCo representative that had provided this response.
JD(NY)–22–15
8
Smith recalled requesting that StaffCo sign an extension agreement on July 9. Smith
maintained that he had previously made the same request to the Respondent during the May 20
meeting11 (Tr. 44).
Smith testified that neither he nor anyone from the Union to his knowledge had made a 5
written request to the Respondent to bargain over a new contract. Smith believed there may
have been some discussions between Green and Clark on an extension, but he is not
personally aware of those discussions. During this time, the pension fund informed the NYSNA
members, Union and StaffCo on May 22 that the pension had terminated upon the expiration of
the contract on May 22 (Jt. Exh. R and S; Tr. 58–62). The Union made a written request to 10
StaffCo to bargain over a new agreement on July 31(Jt. Exh. T).12
Michelle Green (Green) testified that she was the associate director for special projects
in 2014. Green is responsible for negotiating contracts and worked on the pension and benefit
team. She was not involved in the bargaining negotiations with the Respondent for the CBA in 15
effect from May 29, 2011 to May 28, 2012 but had supervised the bargaining team (Tr. 78–80).
Green stated that pending the expiration of the CBA on May 28, 2012, the parties had
met about 10 times to negotiate an extension to the CBA. Green denied that the Union agreed
to a cessation of the employer’s contributions to the pension fund. Green also stated that 20
StaffCo made no alternative proposals on the pension fund during the negotiations for an
extension to the contract. The parties would always reach an extension to the 2012 CBA, but
no changes were ever made on the Respondent’s contributions to the pension plan (Tr. 80, Jt.
Exh. G).13
25
Green testified that she spoke to Clark about six times in 2014 regarding the Union’s
request for a 6-month extension to the collective-bargaining agreement due to expire on May
22. According to Green, Clark responded that StaffCo was concerned over the withdrawal
liability if the employer continues to pay into the pension fund and did not agree to an extension.
Green stated that after May 22, the Respondent continued to maintain all the terms and 30
conditions of the expired agreement but ceased its contribution to the pension fund.
Nevertheless, Green stated that she continued to ask Clark for the Respondent to resume its
contributions to the pension fund as late as July 28 because the pension fund provided a 60-day
grace period that permits an employer to return to the pension by paying the contribution arrears
(Tr. 80–84). 35
As testified by Smith, Green confirmed that the Union did not request to bargain with
StaffCo between May 22 and July 31 (Tr. 103). As noted above, the Union sent a written
request to bargain on July 31. Green testified that she sent another letter on August 13 for the

11 The parties stipulated that the Union and StaffCo had convened a labor management
committee meeting on July 28. Tinti testified that the labor management meetings were more
frequent after May 22 and involved discussing operational issues with the Union over layoffs,
benefits, and payments to the nurses. The labor management meetings were not bargaining
sessions (Tr. 118, 119).
12 In order to prepare for the negotiations, the Union requested certain information in the
July 31 letter that it believe necessary and relevant in preparation for the bargaining. The
information was provided by the Respondent to the Union by letter dated August 7(Jt. Exh. U).
13 As stipulated, nothing changed in the subsequent extensions and interim agreements to
the CBA with regard to the Respondent’s contributions to the pension plan until May 22, when
the Respondent ceased its contribution to the plan.
JD(NY)–22–15
9
Respondent to resume negotiations for a new contract (GC Exh. 2). Green stated that
negotiations had stopped under the mistaken belief by the Respondent that there would be no
unit employees after August 31 (Tr. 86). Green said that the Union made a third written request
on September 4 to bargain and informed the Respondent that approximately 38 unit nurse
practitioners remained in the employ of the Respondent (GC Exh. 3, Tr. 87). Green said there 5
were two sessions after the September 4 request to bargain (Tr. 87).
As stipulated, the parties met on September 22 to discuss the July 31 request to bargain
over a new contract. Relevant to this meeting, Clark, Pappalardo, and Tinti were at the meeting
for StaffCo. Smith testified that the Union presented several proposals to the Respondent at the 10
September 22 session, including a proposal on the pension. Smith testified that the union
proposal on the pension was for the Respondent “. . . get current on their obligations . . .
missed from May 22 onward and continue in the NYSNA Pensions Funds with appropriate
rates” (Tr. 36, 37). Smith said that StaffCo responded by saying that the withdrawal liability was
a major issue and that the employer was not willing to remit the arrears on the pension 15
contribution. The meeting concluded without a resolution to the pension issue (Tr. 37).
Smith testified that the next bargaining session was on November 11. He said that
Clark, Pappalardo, and Tinti were again at this meeting. At the November 11 meeting, the
Respondent presented two economic proposals dealing with health benefits and the pension 20
plan. Smith said that the Respondent, for the first time, proposed an alternative to the pension
plan, which was rejected by the Union. Smith also testified that the Union never agreed to the
Respondent ceasing its contribution to the pension fund. According to Smith, despite the
Respondent not agreeing to make current contributions to the pension fund and the Union
rejecting the employer pension proposal, neither party claimed that the negotiations were at 25
impasse on November 11 (Tr. 38, 71–72, 75–77). Green confirmed that the parties never
reached impasse on the negotiations and that the Union never agreed to the employer’s
proposal to cease the pension contributions with an alternative retirement plan (Tr. 88). The
parties did not bargain over the pension plan after November 11 but did reached a side
agreement on health benefits (Tr. 73, 74).30
Francesca Tinti (Tinti) testified that, as the assistant HR vice president, she is
responsible for hiring and training new employees, discipline, day-to-day operations, and
bargaining with the Union. Tinti stated that the Respondent only has one client, which is SUNY,
and empowered to hire, train, discipline, and interact with the Union on behalf of SUNY with all 35
nonphysician staff at the LICH. In her role as labor representative for the Respondent, Tinti
testified that she has participated in labor management committee meetings with NYSNA and is
familiar with the CBA between the Union and the Respondent (Tr. 105–108). Tinti testified that
she was aware of the pension fund requirement for a current agreement in order to participate in
the pension plan. Tinti stated that she is aware of this policy through the NYSNA pension fund40
and notices received from the fund warning of the pension termination without an extension or
interim agreement. Tinti testified that the Respondent and the Union would agree to short
(usually 6 months) extensions or interim agreements because the closure date for LICH kept
being delayed (Tr. 105–108, 113–117).
45
Tinti testified that she was aware that there was a projected budget shortage with LICH
in early 2001314 that potentially may affect StaffCo’s contractual relationship with LICH.15 Tinti

14 The parties stipulated that there was a claimed $200 million deficit but not to the veracity
of this claim (Tr. 109).
15 It is stipulated that LICH was the only client of StaffCo.
JD(NY)–22–15
10
testified that StaffCo and the Union negotiated layoffs in connection with the potential closure of
LICH and the Respondent issued the appropriate WARN notices to the unit employees. Tinti
thought that LICH was due to close in June 2013, but lamented to a number of delays with the
closure (until May 2014) which affected the Respondent’s participation in the pension plan (Tr.
110–112). Tinti explained that under the pension fund policy, the Respondent was permitted to 5
participate in the pension plan for 4 years but may withdraw at the end of the third year without
incurring a withdrawal penalty (or liability) (Jt. Exh. W). Tinti stated that, however, after the third
year, StaffCo’s liability for withdrawing from the pension fund would be over $2 million s (Tr.
112,113).
10
Tinti testified that the parties negotiated the last extension to expire on May 22 because
that was the anticipated closure date for LICH. In addition, Tinti stated StaffCo was not willing
to go beyond May 22 because the Respondent would then exceed the 3-year period on the
pension plan and incur a withdrawal liability. Tinti believed that Clark informed the Union that
the Respondent would not go beyond May 22 on the contract extension (Tr. 117, 118).15
Tinti testified that the Union never requested to bargain for a successor agreement or for
another contract extension of pension benefits from March 13 (the signing of the last contract
extension) through May 22 (expiration date of the last extension). The pension plan also
provides for a 60-day cure period that permits an employer to return to the plan after the 20
expiration date. Here, as stipulated by the parties, the 60-day cure period would have ended on
July 21. Tinti testified that no one from the Union requested to bargain or proposed written
terms for a successor agreement from May 22 to July 21 (Tr. 120–122).
Tinti further testified that when the Union did request information to bargain on July 31, 25
Clark responded on August 7 with the information requested but did not anticipate resuming
bargaining with the Union under the mistaken belief at that time that StaffCo would not be hiring
or retaining any unit employees (Jt. Exh. U). Tinti said there was an additional delay in the
closure date of the hospital to October 31. Tinti further said that once the Respondent became
aware of the new closure date and that there would still be unit employees working after the 30
October 31 closure date, the parties arranged to bargain on September 22 for a successor
agreement. Tinti testified that it was at the September 22 session that the Respondent
proposed an alternate pension plan. Tinti said she could not recall StaffCo’s response to the
union proposal to retain the pension plan (Tr. 123–126).
35
Clark stated that he was and is the legal counsel to StaffCo and was involved in the
negotiations of the CBA and for the subsequent extensions and interim agreements to the
contract. Clark described the procedure the parties followed in reaching an extension. Clark
stated that Green would send him an email request to extend the contract with a draft extension.
According to Clark, he would make changes in the draft; briefly speak to Green over the 40
proposed language of the draft; and the parties would routinely renew the extension of the
contract (Tr. 129–131; Jt. Exh. H).
Clark believed the Union understood that an extension or an interim agreement to the
CBA was necessary in order for the parties to participate in the pension plan. Clark denied that 45
the Union sought to negotiate a new contract at any time prior to July 31 when he discussed the
extensions with Green (Tr. 131–-133). He stated that after the expiration of the CBA on May 28,
2012, the parties engaged in some discussion on a successor agreement in August 2012. Clark
stated that this occurred before the parties learned of the $200 million shortfall in the budget of
LICH later that summer. Clark testified that once they became aware of the shortfall, the parties 50
agreed to remain in “status quo” with extensions and interim agreements executed to the
expired CBA in order to maintain the pension fund requirement that the parties must have a
JD(NY)–22–15
11
current agreement. Clark said that a longer extension was not possible because the pension
plan only allowed for 6-month extensions to the CBA (Tr. 133–136).
Clark further testified that in late February 2013, StaffCo and the Union became aware
that LICH was closing. The parties began discussing WARN notices to the employees, layoff 5
requirements, and other contractual obligations. Clark said that StaffCo also looked into its
withdrawal liability during the spring and summer of 2013. According to Clark, it was his belief
that there would be no withdrawal liability for the Respondent because the employer was in the
pension plan for less than 3 years. Clark explained that StaffCo would have no withdrawal
liability if Staffco withdraw during the 3-year period because the pension fund only considers the 10
employer’s vested benefits, which was fully funded with the employer’s contributions. Clark said
that after 3 years, StaffCo would be liable for $2.2 million in withdrawal liability because the
pension fund would look at StaffCo’s unfunded vested benefits and the liability would continue
to increase over time (Tr. 137–141; Jt. Exh. W and V).
15
With regard to extending the contract after the May 20 labor management meeting, Clark
denied that anyone from the Union contacted him on May 20 or shortly thereafter regarding the
pension fund (Tr. 142). With regard to the 60-day cure period for the employer to return to the
pension fund, Clark also denied that anyone from the Union contacted him on or about July 20
about the pension fund. Clark reiterated that the Union did not propose to negotiate a 20
successor agreement until its July 31 letter (Tr. 142, 143, Jt. Exh. T).
Clark said it was unclear whether StaffCo would have any employees after July 31
except for the four school-based nurse practitioners. Clark did not see the point of negotiating a
new contract when the parties met on September 22. At this session, Clark testified that the 25
Union requested that StaffCo returned to the pension fund. Clark responded that StaffCo could
not due to its withdrawal liability. Clark maintained that the Union was well aware since the
second to the last extension that the employer would have withdrawal liability after May 30/31.
Clark stated that Green and others in the Union were well aware that StaffCo could not continue
with the pension plan after 3 years.30
In October, the sale of LICH was approved, and that StaffCo would retain four unit
employees.16 The Respondent and the Union participated in another bargaining session on
November 11. At the November 11, the employer proposed a retirement plan as an alternate to
the pension plan, which was rejected by the Union. Also at this session, the employer was 35
willing to accept the union health benefits plan for its four unit employees. There has not been
another bargaining session after November 11 (Tr. 144–-152).
DISCUSSION AND ANALYSIS
40
The sole issue in this complaint is whether the Respondent violated Section 8(a)(5) and
(1) of the Act when it ceased contributing to the pension fund. Here, it is undisputed that the
Respondent maintained the status quo with respect to all the terms and conditions of the
expired contract except for terminating the contributions to the pension fund.
45
The Respondent asserts three defenses for ceasing contributions to the pension plan.
The Respondent argues that (1) it was no longer obligated to participate in the pension plan
upon the expiration of the contract on May 22; (2) it was barred in whole or in part because of
the doctrine of impossibility; and (3) it had in fact bargained with the Union regarding the

16 Stipulations #47, 48 and 49 at Jt. Exh. Y.
pension benefits (See, R Br. and Respondent’s answer to the complaint).
The credibility resolutions herein have been derived from a review of the entire 5
testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the
witnesses, and the teachings of
credibility determination may rely on a variety of factors, including the context of the witness’
testimony, the witness’ demeanor, and the weight of the respective evidence, established or
admitted facts, inherent probabilities, and reasonable10
record as a whole. Double D Construction Group
335 NLRB 622, 623 (2001). Credibility findings need not be all
nothing is more common in all kinds of judicial decisions than to believe some, but not all, of a
witness’ testimony. Daikichi Sushi
15
The general rule is that
an employer’s obligation to refrain from unilateral
implementation unless and until20
agreement as a whole. Pleasa
Enterprises, 302 NLRB 373 (1991).
insurance, is a mandatory subject of bargaining.
(1969) (“The pension, health, and welfare plans provided for by the
an aspect of employee wages and a term and condition of employment which survived the 25
expiration of the contract and could not be altered without
Co. v. NLRB, 524 F.3d 1350, 1356 (D.C.Cir. 20
made clear that retirement benefits for current employees are mandatory bargaining subjects.”);
also, Wire Products Mfg. Corp.
(1997). 30
c
The Respondent concedes that Section 8(a)(5) creates a
employer to maintain the same terms and conditions of employment that exists prior to the 35
expiration of the contract. However, the Respon
unmistakably waived the employer’s obligation to
upon the expiration of the contract on May 22
par. 5 and R Br. at 24). The Respondent maintains that
by the Union, also negated StaffCo40
contribute to the pension fund.
An employer violates Section 8(a)(5) and (1) of the Act if it change the wages, hours, or
terms and conditions of employment of represented employees without providing the Union with
prior notice and an opportunity to bargain over such changes. See 45
743–747 (1962). The rationale for this rule is that if the employer is free to alter the very terms
and conditions subject to negotiations, bargaining would become
Printing Divi. v. NLRB, 501 U.S. 190, 198 (1991).
unilateral change if it proves that a union has expressed or implied a “clear and
waiver” of its right to bargain. American Broadcasting Co50
Pacific Medical Center, 337 NLRB 910 (2002).
voluntarily relinquishes its right to bargain about a term and
JD(NY)
12
a. Credibility
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408
inferences that may be drawn from the
, 339 NLRB 303, 305 (2003);
-or-nothing propositions
, above.
b. Mandatory subject of bargaining
when parties are engaged in negotiations for a
changes encompasses a duty
an overall impasse has been reached on bargainin
ntview Nursing Home, 335 NLRB 96 (2001),
It is clear that contributions to a pension fund, like h
Hen House Market No. 3, 175 NLRB 596
expired contract constituted
bargaining.”); S. Nuclear Operating
08) (explaining that the Supreme Court has
, 329 NLRB 155 (1999); Dynatron/Bondo Corp.
. The Respondent’s waiver defense
statutory obligation of the
dent maintains that the Union clear
continue making pension fund contributions
(See Respondent’s answer to the complaint at
the terms of the contract, as agreed to
’s statutory duty to maintain the status quo by continuing to
NLRB v. Katz
difficult. Litton Financial
An employer may escape liability for a
., 290 NLRB 86, 88 (1988);
A waiver occurs when a union knowingly and
condition of employment and cedes
–22–15
(1962). A
Daikichi Sushi,
—indeed,
new agreement,
to refrain from
g for the
citing Bottom Line
ealth
“. . .
, 323 NLRB 1263
ly and
, 369 U.S. 736,
unmistakable
California
JD(NY)–22–15
13
full discretion to the employer on such a matter. However, the Board narrowly construes waivers
and has been hesitant to imply waivers not explicitly mentioned in the parties’ collective-
bargaining agreements. Mississippi Power Co., 332 NLRB 530 (2000), enfd. in part 284 F.3d
605 (5th Cir. 2002) (rejecting employer’s waiver argument that the unions incorporated the
benefit plans’ reservation of rights clauses into the contract based on a “course of conduct” of 5
copies of the benefit plans provided to the unions and incorporated into the collective-bargaining
agreements); see also Dept. of the Navy Marine Corps Logistics Base v. FLRA, 962 F.2d 48, 57
(D.C. Cir. 1992) (construing waiver narrowly); and Metropolitan Edison Co. v. NLRB, 460 U.S.
693 (1983) (holding that a union may waive its protected rights to bargain over a mandatory
subject, but the waiver must be clear and unmistakable). Such a waiver, like any waiver of a 10
statutory right, must be “clear and unmistakable.” Provena St. Joseph Medical Center, 350
NLRB 808, 810–812 (2007). “The clear and unmistakable waiver standard . . . requires
bargaining partners to unequivocally and specifically express their mutual intention to permit
unilateral employer action with respect to a particular employment term, notwithstanding the
statutory duty to bargain that would otherwise apply.” Provena, above at 811. The burden is on 15
the party asserting the waiver to establish the existence of the waiver. Pertec Computer, 284
NLRB 810 fn. 2 (1987).
The Board has relied on several factors in assessing whether a clear and unmistakable
waiver exists: (1) language in the collective-bargaining agreement, (2) the parties’ past dealings, 20
(3) relevant bargaining history; and (4) other bilateral changes that may shed on the parties’
intent. Southwest Ambulance, 360 NLRB No. 109, slip op. at 11 (2014); also, Johnson-
Bateman, 295 NLRB 180, 184–187 (1989); American Diamond Tool, 306 NLRB 570 (1992).
Upon my review, I find that there was no expressed or implied waiver in the collective-25
bargaining agreements, in any of the extensions and interim agreements, or in the pension plan
policy for continuation of coverage upon expiration of a collective-bargaining agreement. I also
find that the Union never waived its right to bargain over the pension plan contribution.
The record shows, and as stipulated by the parties, there was a collective-bargaining 30
agreeement effective from May 29, 2011 through May 28, 2012. It is not seriously disputed that
the Union and the Respondent were fully aware that in order to continue with the pension fund,
StaffCo was required to sign an “Acknowledgment of Trust Agreement” and to submit the
agreement to the pension fund and to continue remitting its contributions to the plan. It is also
not seriously disputed that the NYSNA Pension Plan required that StaffCo and the Union to 35
have a current bargaining agreement or an extension of the agreement in order to continue the
pension coverage. StaffCo and the Union were aware of this requirement and from the time the
collective-bargaining agreement had expired on May 28, 2012, the parties agreed to maintain
an agreement with either an extension or with an interim agreement. As stipulated the parties
entered into (1) a contract extension from May 29 through December 31, 2012; 2) a contract 40
extension from January 1, 2013 to March 31, 2014; (3) an interim agreement from January 1
through June 30, 2013; 4) an interim agreement from July 1 through December 31, 2013; and
(5) a contract extension from April 1 to May 22, 2014.
The understanding that the parties must have a current collective-bargaining agreement 45
for the continuation of coverage of the pension plan is, however, not the same as the parties
agreeing that the Union waived its right to statutory right to continuance of the status quo as to
terms and conditions after the expiration of the bargaining agreement. Rather, the law is clear
that such a waiver must be explicit to overcome the settled Board policy favoring fundamental
statutory rights of employees. Lear Sigeler, Inc., 293 NLRB 446 (1989) (The Board found, 50
contrary to the judge, that the union did not explicitly waived its right to strike). It is clear that
the pension plan benefits “. . . are a term and condition that survive the expiration of the
JD(NY)–22–15
14
collective-bargaining agreement and are a mandatory subject of bargaining that an employer
cannot alter without providing the union an opportunity to bargain.” Jim Walter Resources,
289 NLRB 1441 (1988). “A waiver occurs when a union knowingly and voluntarily relinquishes
its right to bargain about a matter. . . . [W]hen a union waives its right to bargain about a
particular matter, it surrenders the opportunity to create a set of contractual rules that bind the 5
employer, and instead cedes full discretion to the employer on that matter. For that reason, the
courts require ‘clear and unmistakable’ evidence of waiver and have tended to construe waivers
narrowly.” Dept. of the Navy, Marine Corps Logistics Base, above, at 57. “[C]lear and
unmistakable waivers have been inferred from the structure of collective bargaining agreements
and from bargaining history showing that the parties have ‘consciously explored’ or ‘fully 10
discussed the matter on which the union has ‘consciously yielded’ its rights.” Gannett
Rochester Newspapers v. NLRB, 988 F.2d 198, 203 fn. 2 (D.C.Cir.1993) (citations omitted).
The Board has recognized implied waivers. See Mt. Clemons General Hospital, 344
NLRB 450 (2005) (an employer lawfully made unilateral changes to a tax shelter annuity 15
program, shrinking it from five providers to one based upon the employer’s 20-year record of
making similar unilateral changes without requesting that the Union bargain over them); see
also Litton Microwave Cooking Products v. NLRB, 868 F.2d 854, 858 (6th Cir. 1989) (finding an
implied waiver when the management-rights clause was included in a contract explicitly
referring to layoffs along with a history of uncontested work relocation and layoffs); California 20
Pacific Medical Center, 337 NLRB 910, 914 (2002) (finding an implied waiver based on a
management rights clause providing the employer with the right to lay off employees whenever
necessary, coupled with a longstanding practice of uncontested actions and absent requests to
bargain).
25
I find no such implied waiver has been established from the parties’ prior bargaining
history, past dealings, or other unilateral changes in the CBA. The Union, in agreeing to a
contractual obligation, did not also agree to waive its statutory right to continuance of the status
quo after the contract expiration. Upon a review of the language of the CBA under section 9.02
of the Pension Plan, I find no reference to an implied or expressed waiver of the Union’s30
statutory right to continue with the status quo after the contract expiration (Jt.1 Exh. A at 30).
The CBA merely requires the Respondent to complete an Acknowledgement and Trust
Agreement with the Requirements for the Admission to the Pension Plan. The contract
extensions merely require that the extensions and the collective-bargaining agreement shall be
consistent with the provisions of the NYSNA Pension Plan and Trust Agreement (Jt. Exh. O). 35
The relevant bargaining history and past dealings as consistently testified by the witnesses
could be summarized as preparing a draft interim agreement or an extension by Green that was
delivered to the Respondent by email or mail, some tweaking of the draft language by Clark and
a subsequent signed document. The witnesses did not testify to any language in the extensions
or interim agreements that would constitute a waiver to the employer’s statutory obligation to 40
maintain the terms and conditions of employment postexpiration of the agreement. The fact that
the Union and Respondent agreed on extending the collective-bargaining agreement did not
mean that the Union agreed to a waiver. The extensions and interim agreements only reinforce
the obligations of the parties to extend all the terms of conditions of the collective-bargaining
agreement retroactive to May 29, 2012. The provision in the extension to include the 45
employer’s obligation to make contributions to the pension plan merely reflects the amount to be
paid to each employee and which employees were covered.17 Consequently, the focus turns on

17 Similarly, I find that the Union never understood that the last extension expiring on May 22
was for the Respondent to avoid withdrawal liability and therefore, a clear and unmistakable
waiver by the Union. I credit Smith’s testimony that May 22 was established as the expiration
Continued
JD(NY)–22–15
15
the language of the NYSNA Pension Plan.
The Respondent argues that language in the pension plan agreement clearly and
unmistakably set forth the understanding of the parties that the employer’s obligation to continue
making pension fund contributions ceases upon the expiration of the contract. As such, the 5
Respondent maintains that the understanding and agreement by the Union with this language
was an explicit waiver by the Union of the obligation of the employer to continue providing
pension fund payments. The language referenced by the Respondent is in section D “Policy for
Continuation of Coverage upon Expiration of a Collective Bargaining Agreement” (Jt. Exh. F)
and states:10
Upon expiration or termination of a collective bargaining agreement, if (i) the employer
has not submitted to the Plan Office a new collective bargaining agreement which
satisfies the requirements of (A) above and has not complied with the provisions of
(B)(1) above, or (ii) the employer owes contributions to the Fund for more than two 15
months (without regard to when such contributions are payable), the employer's
participation in and status as an Employer under the Fund shall forthwith terminate, the
service of such employer's employees shall no longer be credited under the Plan, the
employer and the Associations shall be notified in writing, and the employees of the
employer shall be notified in writing five business days thereafter, that the employer is no 20
longer maintaining the Plan and that the covered employment of the employees of the
employer terminated on the expiration/termination date of the collective bargaining
agreement.
The Respondent finds support in Cauthorne Trucking, 256 NLRB 721 (1981), and Oak 25
Harbor Freight Lines, Inc., 358 NLRB No. 41 (2012), for the proposition that an employer’s
obligation to continue with its pension fund contributions does not survive postexpiration of the
contract because the agreement clearly and unmistakenly set forth the understanding of the
parties authorizing the employer to terminate its pension fund contributions.
30
In Cauthorne, the Board held that health and welfare and pension fund plans which are
part of an expired contract constitute an aspect of employee wages and a term and condition of
employment which survives the expiration of the contract. Cauthorne, 256 NLRB at 721. As
here, the employer in Cauthorne asserted that the obligation to make payments into the funds
depends upon the existence of a current contract between the employer and the union. The 35
Board found that contrary to Cauthorne’s assertions, the trust fund agreements merely referred
to the collective-bargaining agreement for the purpose of setting the amount to be paid into the
fund and any references are insufficient to relieve an employer of its obligation to bargain
regarding changes in the employees’ terms and conditions of employment. The Board noted
that the fund trust agreements contain no other language which might limit an employer’s 40
obligation to bargain regarding cessation of payments into the fund. However, with regard to
the pension fund in Cauthorne, the Board found that the language in the pension fund trust
agreement contained the following additional language that was critical to the Board’s
determination in finding a waiver
45
IT IS UNDERSTOOD AND AGREED that at the expiration of any particular collective
bargaining agreement by and between the Union and any Company's obligation under
_________________________
date for the last extension because it was anticipated that LICH would be closed after that date
and StaffCo would cease having bargaining unit employees and not as waiver of the pension
plan contributions postexpiration of the contract.
JD(NY)–22–15
16
this Pension Trust Agreement shall terminate unless, in a new collective bargaining
agreement, such obligation shall be continued.
In Oak Harbor Freight, above, like here, the employer’s collective-bargaining agreement
required the employer to be bound by the pension fund agreement. The judge in Oak Harbor5
specifically found that the obligations under the trust agreements pursuant to the expired
bargaining agreement will continue until one party notifies the other of its intent to cancel such
obligation and that this contract language expresses a clear intent to relieve the Respondent of
its obligation to make payments after contract expiration. Oak Harbor, above, slip op. at 14. The
Board agreed and found in Oak Harbor that the pension fund agreement explicitly stated that 10
the employer could cancel its obligation to contribute to the fund upon the expiration of the
collective-bargaining agreement by notifying the other party in writing with a copy to the trust
fund of its intent to cancel such obligation was a waiver to continue making contributions to the
pension fund.18
15
I find that the waivers in Cauthorne and Oak Harbor are clearly distinguishable from this
situation. In Cauthorne, the Board points specifically to the language of “IT IS UNDERSTOOD
AND AGREED” to find a waiver and only as it pertains to the pension fund. The same language
was not in the employer’s other trust funds and the Board declined to find a waiver in those
situations. I find no such language evident in the NYSNA Pension Plan. Here, such language 20
is absent from the NYSNA Pension Plan and the Union never understood and agreed that the
expiration of the collective-bargaining agreement would also terminate the employer’s obligation
to the pension fund. In Oak Harbor Freight, the union agreed to the pension fund agreement
that the employer’s cancellation upon written notification to the other party and to the fund.
Here, the parties never contractually agreed that the Respondent could cancel the pension 25
obligations by notifying the other party. Rather, this situation squarely falls with the line of cases
that found no waiver in the absence of explicit language. In Provena, above, the Board held
that a unilaterally implemented salary incentive policy by the employer violated Section 8(a)(5)
of the Act because there was no express substantive provision in the contract regarding
incentive pay and moreover, there was no evidence that incentive pay was consciously explored 30
in bargaining or that the Union intentionally relinquished its right to bargain over the topic. In
AlliedSignal Aerospace, 330 NLRB 1216 (2000), the Board found no waiver in the collective-
bargaining agreement clause referring to “bonuses or other benefits” simply “. . . specifies the
contractually enforceable rights to payments of benefits accruing during the term of the contract.
It does not give the Respondent the right to terminate unilaterally the contractually-established 35
practice of paying them.” In Schmidt-Tigo Construction Co., 286 NLRB 342 (1987), the Board
adopted the judge’s analysis in finding no contractual waiver. The judge distinguished
Cauthorne, “This language does not on its face, as in Cauthorne Trucking, specifically states
that Respondent’s obligation to contribute to the pension trust fund ends with the expiration of
the current collective-bargaining contract,” 286 NLRB at 366. In Parsons Electric, 361 NLRB No. 40
20 (2014), the Board agreed with the Judge finding that there was no expressed or implied
waiver when the employer changed the break policy in its employee handbook without prior
notice to the Union and affording the Union an opportunity to bargain with the Company.19

18 The Board considered Oak Harbor de novo after it was vacated by Noel Canning, 134 S.Ct.
2550 (2014), and adopted the judge’s rulings, findings, and conclusions and the judge’s remedy
and recommended Order. Oak Harbor Freight, 361 NLRB No. 82 (2014).
19 The counsel to the General Counsel, in her closing brief, urges the Board to adopt Finley
Hospital, 359 NLRB No. 9 (2012), rationale as soundly reasoned, although the case was
vacated by the D.C. Circuit under Noel Canning, 134 S.Ct. 2550 (2014). See GC Br. at 15. I
Continued
JD(NY)–22–15
17
The counsel for the General Counsel cites to Cofire Paving Corp., 359 NLRB No. 10
(2012)20 where the Board held that an employer violates Section 8(a)(5) and (1) of the Act when
it unilaterally ceased making benefit contributions to the old fund after it was no longer accepting
contributions. I find it unnecessary to analysis the instant situation under Cofire. The Board has 5
held in Katz, above, that an employer is required to maintain the status quo until it fulfilled its
bargaining obligation. I find the Respondent was also required to provide the Union with notice
and an opportunity to bargain over the manner in which the contributions would be preserved.21
10
Likewise, I reject the argument that the Union waived its right to bargain over the
termination of the employer’s contributions to the pension fund when the Union failed to
diligently request to bargain or to demand arbitration over the pension plan subject matter.
With regard to the allegation that the Union failed to timely request to bargain, I find 15
credible the testimony of Smith and Green that the Union was seeking an extension to the
contract since May 20 and repeatedly requested that the Respondent continue with its pension
contributions. When it became clear to the Union by July that the Respondent would not
continue its pension contributions, the Union then sought to bargain over a new contract. I did
not find the Union’s actions as a failure to diligently pursue bargaining. With regard to the 20
allegation that the Union failed to pursue arbitration over the pension contributions, Section 9.02
of the collective-bargaining agreement states, in part, that if the employer fails to make timely
contributions (to the pension plan), the matter will be submitted to arbitration (Jt. Exh. A). I find
that the Union correctly argued that inasmuch as the grievance on the pension plan issue would
involve facts and occurrences postexpiration of the contract, the arbitration clause would not 25
have survived on such as postexpiration dispute. See CP Br. at 22, 23. The Respondent
repines that the Union, instead of bargaining or demanding arbitration, filed the NLRB charge in
this complaint just 6 days after its request to bargain on July 31 (R Br. at 35, 36). Again, the
Respondent mistakes the statutory right of the Union to enforce the employer’s contributions to
the pension plan and the Respondent’s statutory obligation to maintain the status quo of the 30
expired contract as opposed to a contractual obligation to use the collective-bargaining
agreement arbitration procedures.
_________________________
find that Finley Hospital rationale is legally persuasive, but my determination that the Union did
not make a “clear and unmistakable” waiver is based upon precedents prior to Finley Hospital.
See also Honeywell International v. NLRB, 253 F.3d 125 (D.C. Cir. 2001) (there is no basis for
finding the union waived its statutory right to continuance of the status quo as to the terms and
conditions after contract expiration); General Tire & Rubber Co., 274 NLRB 591 (1985) (The
Board found the contract did not address employer’s statutory obligation to pay benefits
postexpiration of a contractual benefit and therefore did not constitute a waiver by the union);
and KBMS, Inc., 278 NLRB 826 (1986) (no waiver to right to pension where the relevant
language is “ambiguous” rather than “clear and unmistakable”).
20 The decision in Cofire Paving Corp. was vacated under Noel Canning. The General
Counsel again urges the Board to adopt the rationale in Cofire.
21 The Respondent also maintains that the amount of its withdrawal liability of over $2 million
would impose a financial hardship. Assuming that the estimated dollar amount was correct,
inconvenience and hardships are not a defense to the unfair labor practice. StaffCo could have
set aside the contributions, preserve the contributions in an escrow account, and begin
negotiations with the Union for a new contract.
JD(NY)–22–15
18
Consistent with Katz, I find it was the obligation of the Respondent to provide notice to
the Union of the unilateral change in status quo of a term and condition of employment and an
opportunity to the Union to bargain over this change and not to fault the Union for filing a charge
or not to pursue arbitration.
5
d. The Respondent’s other defenses
The Respondent makes two additional affirmative defenses. The Respondent argues
that it was impossible to continue making contributions to the pension plan unless the parties
have current bargaining agreement and the Respondent had in fact comply with all the 10
bargaining obligations it may have with the Union.
First, the Respondent maintains that it is excused from making contributions after the
expiration contract because the NYSNA Pension Plan would not accept the contributions
without a current agreement. The Respondent did not actually establish that the contributions 15
would not be possible and it would be pure speculation on the part of the Respondent that its
contributions would not be accepted by the pension plan. The NYSNA Pension Plan provides
for a “cure period” of 60 days after the termination of the employer’s participation in the fund to
permit the employer’s return to the pension fund (Jt. Exh. F at 7) as some indication that
contributions would be accepted from employer even without a current agreement. In any 20
event, impossibility does not excuse the Respondent from unilaterally cease contributions.
Thus, even assuming NYSNA Pension Fund would no longer accept the Respondent’s
contributions, I find that the Respondent was required to continue calculating the pension
contributions according to the established formulas and to set the contributions aside for the
benefit of the employees until the parties reached a new agreement on the subject or bargained25
to an impasse.
Second, the Respondent maintains that it had and continues to comply with its
bargaining obligation with the Union. Contrary to the Respondent’s contentions, I find that the
Respondent violated Section 8(a)(5) when it failed to bargain with the Union to impasse on the 30
issue of the pension fund contributions. The Union argues that the Respondent is barred from
raising impasse as a defense it was not pled in the answer to the complaint (See, CP Br. at 25).
I note that the Respondent did not specifically argue impasse as a defense in its closing brief.
Nevertheless, in addressing the contention that the Respondent is barred from raising impasse
as a defense, the record reveals that witnesses Green and Smith were examined by the parties 35
on the issue of impasse at the trial. Therefore, if impasse as an affirmative defense must be
pled, the situation cited by the Union in Harco Trucking, LLC, 344 NLRB 478, 479 (2005), would
not apply since the parties had an opportunity to litigate and examine witnesses regarding the
issue of impasse.
40
To the extent that impasse was argued by the Respondent as a defense, it is clear that
the Board does not lightly find an impasse. In A.M.F. Bowling Co., 314 NLRB 969 (1994), enf.
denied 63 F.3d 1293 (4th Cir. 1995), the Board defined impasse as the point in time of
negotiations when the parties are warranted in assuming that further bargaining would be futile
and where both parties believe that they are “at the end of their rope.” The Board considers45
negotiations to be in progress, and thus will find no genuine impasse to exist, until the parties
are warranted in assuming that further bargaining would be futile or that there is “no realistic
possibility that continuation of discussion . . . would be fruitful.” Saint-Gobain Abrasives, Inc.,
343 NLRB 542, 556 (2004). I fully credit the testimony of Green and Smith in finding that the
parties were not at the end of their rope. The parties stipulated that there were two bargaining 50
sessions (Sept.r 22 and Nov. 11) over a new contract. The Respondent proposed an
alternative to the pension plan, which the Union rejected. However, the Respondent never met
JD(NY)–22–15
19
its obligation to specifically bargain over the unilateral change and on preserving the pension
plan contributions. I credit the testimony of Green and Smith when they stated to Clark that the
Respondent must “get current” and continue its contributions to the pension plan and Clark
responded that StaffCo would not resume its contributions due to the withdrawal liability facing
the Respondent. However, Clark never provided the Union with an opportunity to bargain with 5
the Respondent over this unilateral change. At this point, once the Respondent had noticed the
Union of its unilateral change in the pension plan subject matter, the Respondent was obligated
to bargain over this change and to preserve the level of contributions until the parties bargained
to a new agreement or to impasse. Instead, the Respondent simply refused to bargain over
this unilateral change. As discussed above, since the Respondent never provided the Union 10
an opportunity to bargain over preserving the contribution levels, I find that impasse was never
reached by the parties.
Accordingly, I find that the Respondent violated Section 8(a)(5) and (1) of the Act when it
stopped making contributions to the NYSNA Pension Fund.15
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.20
2. The Union, New York State Nurses Association, is a labor organization within the
meaning of Section 2(5) of the Act and is the exclusive bargaining representative for
All full-time, regular part-time and per diem registered professional nurses, temporary 25
employees, as defined in Section 4.04 of the collective bargaining agreement, and
persons authorized by permit to practice as registered professional nurses, including
staff nurses, assistant nursing care coordinators, case managers, and community health
coordinators, and Nurse Practitioners and Nurse Midwives employed by the Employer at
the SUNY Downstate at Long Island College Hospital, and excluding supervisory, 30
confidential, executive and managerial employees, and all other employees, guards and
supervisors within the meaning of the National Labor Relations Act.
3. The Respondent violated Section 8(a)(5) and (1) of the Act by failing to give notice and
an opportunity to bargain with the Union prior to unilaterally terminating its contributions to the 35
NYSNA Pension Plan on May 22, 2014.
4. The Respondent’s above described unfair labor practice affects commerce within the
meaning of Section 2(6) and (7) of the Act.
40
Remedy
Having found that the Respondent has engaged in certain unfair labor practices within
the meaning of Section (a)(5) and (1) of the Act, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectuate the policies of the Act. The 45
Respondent shall be required to make whole its bargaining unit employees for any losses they
suffered or expenses they incurred, including benefits to their pension plan, which resulted from
the Respondent’s unlawful termination of its contribution to the pension plan on May 22, 2014.
50
JD(NY)–22–15
20
On these findings of fact and conclusion of law and on the entire record, I issue the
following recommend22
Order
5
The Respondent, StaffCo of Brooklyn, LLC, Brooklyn, New York, its officers, agents,
successors, and assigns, shall
1. Cease and Desist from
10
(a) Unilaterally terminating its contribution to the bargaining unit employees’
pension plan without first notifying the Union and affording it an opportunity to bargain
over the pension plan.
(b) Failing and refusing to bargain in good faith with the Union as the 15
exclusive representative of employees in the appropriate unit set forth above by
unilaterally modifying the terms and conditions of employment of the unit by failing
and refusing to make contributions to the pension plan without having reached a valid
impasse.
20
(c) 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 purposes and
policies of the Act.25
(a) Upon request by the Union, bargain collectively in good faith with the Union
as the exclusive representative of the employees in the bargaining unit set forth
above, and embody any understanding reached in a signed agreement.
30
(b) Upon request by the Union, restore employment terms and conditions of
the bargaining unit set forth above prior to May 22, 2014, including the restoration of
the contributions to the NYSNA Pension Plan that was terminated on or about that
date.
35
(c) Upon the request of the Union, make pension contributions to the NYSNA
Pension Plan on behalf of the above bargaining unit employees from May 22, 2014
onward at the rates established in the last signed agreement, if the plan accept such
contributions and that its delinquent contributions be subjected to an interest payment
of no less than 1.5 percent per month consistent with the plan. If the NYSNA Pension 40
Plan will not accept such contributions, make pension contributions at an interest rate
at no less than 1.5 percent from May 22, 2014, onward to an escrow account as
negotiated with the Union.
(d) Preserve and, within 14 days of a request, or such additional time as the 45
Regional Director may allow for good cause shown, provide at a reasonable place

22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD(NY)–22–15
21
designated by the Board or its agents, all payroll records, social security payments
records, timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of monetary benefits due under the terms of this Order.
5
(e) Within 14 days, post at the Respondent’s Brooklyn, New York facility a copy
of the attached notice marked “Appendix.”23 Copies of the notice, on forms provided by
the Regional Director for Region 29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all places where 10
notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In addition to physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates with its employees by 15
such means. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facilities involved in these
proceedings, or sold the business or the facilities involved herein, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time since May 22, 2014.20
(f) Notify the Regional Director in writing within 21 days from the date of this
Order what steps the Respondent has taken to comply.
25
Dated: Washington, D.C. May 21, 2015
________________________________
Kenneth W. Chu
Administrative Law Judge
30
35
40

23 If this Order is enforced by a judgment of the 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.”
JD(NY)–22–15
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.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefits and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to bargain collectively with the Union (New York State Nurses
Association) as your exclusive representative of the employees in the following unit:
All full-time, regular part-time and per diem registered professional nurses,
temporary employees, as defined in Section 4.04 of the collective bargaining
agreement, and persons authorized by permit to practice as registered
professional nurses, including staff nurses, assistant nursing care coordinators,
case managers, and community health coordinators, and Nurse Practitioners and
Nurse Midwives employed by the Employer at the SUNY Downstate at Long
Island College Hospital, and excluding supervisory, confidential, executive and
managerial employees, and all other employees, guards and supervisors within
the meaning of the National Labor Relations Act.
WE WILL NOT unilaterally discontinue the pension plan contributions of the employees
in the unit described above without bargaining to an overall lawful bargaining impasse.
WE WILL NOT notify the New York State Nurses Association (the Union), after the fact,
of our decision to cease making contributions to the NYSNA Pension Plan when we
have not given the Union notice and an opportunity to bargain.
WE WILL NOT otherwise make changes to the terms and conditions of employment our
employees without first bargaining to good-faith impasse with your Union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our
employees in the rights guaranteed to them by Section 7 of the National Labor Relations
Act.
WE WILL restore the pension plan contribution levels, with interest, to the NYSNA
Pension Plan and resume participation in the pension plan coverage of all employees
employed in the unit described above at the time the contributions were terminated.
JD(NY)–22–15
WE WILL upon request by the Union rescind any or all changes in the terms and
conditions of employment that we made without bargaining with the Union to an overall
good-faith impasse.
WE WILL upon request by the Union, meet and bargain collectively in good faith with the
Union as the exclusive representative of the employees in the bargaining unit described
above until an agreement has been reached with the Union or a lawful impasse in
negotiations occurs.
StaffCo of Brooklyn, LLC.
(Employer)
DATED: __________ BY__________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935
to enforce the National Labor Relations Act. It conducts secret-ballot elections to
determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your
rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
Two Metro Center
100 Myrtle Avenue, 5th Floor
Brooklyn, New York 11201
Tel: 718-330-7713
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29-CA-134148 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, 718-330-2862.