Staffco of Brooklyn, LLC

National Labor Relations Board - Board Decisions

Aug 26, 2016

364 NLRB No. 102 (N.L.R.B. 2016)

364 NLRB No. 102
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
StaffCo of Brooklyn, LLC and New York State Nurs-
es Association. Case 29–CA–134148
August 26, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On May 21, 2015, Administrative Law Judge Kenneth
W. Chu issued the attached decision. The Charging Par-
ty filed a brief supporting the judge’s decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel and the Charging Party each filed an-
swering briefs. The Respondent also filed reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.3
We adopt the judge’s finding that the Respondent un-
lawfully ceased its contributions to the pension fund on
behalf of unit employees upon the expiration of the par-
ties' collective-bargaining agreement. Contrary to our
dissenting colleague, we find that the judge correctly
rejected the Respondent’s affirmative defense that certain
language within the pension plan document constituted a
waiver by the Union of its right to bargain about the con-
tinuation of pension benefits following the contract expi-
ration.
A. Background
The Respondent is a registered New York State Pro-
fessional Employer Organization. The State University
of New York (SUNY) operates SUNY Downstate Medi-
cal Center (SUNY Downstate), which is an academic
medical center. In May 2011, SUNY acquired Long

1 We deny the Respondent’s request for oral argument, as the rec-
ord, exceptions, and briefs adequately present the issues and the posi-
tions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We shall modify the judge’s remedy and recommended Order to
conform to our findings and to the Board’s standard remedial language.
We shall also substitute a new notice to conform to the Order as modi-
fied.
Island College Hospital (LICH). In connection with its
acquisition of LICH, SUNY Downstate contracted with
the Respondent to hire and employ the nonphysician staff
at the LICH facilities. The Respondent recognized the
Union as the collective-bargaining representative for a
bargaining unit of registered nurses and nurse practition-
ers who worked at LICH and in LICH clinics at area
schools.
The Respondent and the Union negotiated an initial
collective-bargaining agreement, effective May 29, 2011,
through May 28, 2012, in which the Respondent agreed
to participate in the New York State Nurses Association
Pension Plan (Pension Plan). Section 9.02 of the collec-
tive-bargaining agreement required the Respondent to
complete an acknowledgement form and to become
bound by the terms and provisions of the Pension Plan’s
Agreement and Declaration of Trust, which included the
Pension Plan’s “Policy for Continuation of Coverage
Upon Expiration of a Collective Bargaining Agreement”
(Policy). The Policy essentially provided that the Re-
spondent could continue to participate in the Pension
Plan after the expiration of the collective-bargaining
agreement if the employer continued to make contribu-
tions to the plan and submitted a new collective-
bargaining agreement, contract extension, or interim
agreement. The Policy stated:
Upon expiration or termination of a collective bargain-
ing 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 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 em-
ployees shall no longer be credited under the Plan, the
employer and the Associations shall be notified in writ-
ing, and the employees of the employer shall be noti-
fied in writing five business days thereafter, that the
employer is no 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.4
Following the expiration of the initial collective-
bargaining agreement on May 28, 2012, the parties
agreed to three contract extensions and two interim

4 Cross-referenced sec. (A) of the Policy sets forth the provisions
that a new collective-bargaining agreement must contain in order to
serve as a basis for continuation of participation. Sec. (B)(1) provides
for continuation of participation based on an interim agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
agreements to continue pension coverage.5 The parties
agreed that May 22, 2014,6 would be the expiration date
for their third contract extension agreement because they
anticipated that LICH would be closed after that date and
that the Respondent would no longer employ bargaining
unit employees. On May 20, the parties held a meeting
regarding the layoff of unit employees. The Union in-
formed the Respondent’s representatives that the Re-
spondent needed to execute a fourth contract extension in
order to remain current on its pension contributions for
the unit employees who would not be laid off on May 22.
The Respondent, however, declined the Union’s requests
to sign another extension agreement.
On May 22, the third contract extension agreement ex-
pired without another agreement between the parties in
place. After May 22, the Respondent continued to em-
ploy approximately 39 unit employees. The Respondent
ceased its pension contributions for these employees but
maintained all of the other terms and conditions of em-
ployment under the expired collective-bargaining agree-
ment.7
B. The Judge’s Decision
The judge found that the Respondent violated Section
8(a)(5) and (1) when it ceased contributing to the Pen-
sion Plan on May 22. The judge rejected the Respond-
ent’s argument that language in the Policy was an explic-
it waiver by the Union of the Respondent’s obligation to
continue providing pension fund payments upon the ex-
piration of the contract. The judge found that both Cau-
thorne Trucking, 256 NLRB 721 (1981), enf. granted in
part, denied in part 691 F.2d 1023 (D.C. Cir. 1982), and
Oak Harbor Freight Lines, 358 NLRB 328 (2012), reaf-
firmed and incorporated by reference, 361 NLRB No. 82
(2014), relied on by the Respondent, were distinguisha-
ble because the pension plan in each case contained lan-
guage expressly addressing the respective employer’s
statutory postexpiration obligations. As set forth below,

5 Specifically, the parties entered into (1) a contract extension from
May 29 through December 31, 2012; (2) an interim agreement from
January 1 through June 30, 2013; (3) an interim agreement from July 1
through December 31, 2013; (4) a contract extension from January 1,
2013 to March 31, 2014; and (5) a contract extension from April 1 to
May 22, 2014.
6 All dates are in 2014, unless otherwise noted.
7 On July 9, the parties had a labor-management meeting. At this
time, under the Policy, the Respondent could still “cure” its termination
as a plan participant by executing another extension agreement and
paying the pension contributions owed for the remaining unit members.
However, when the Union again requested that the Respondent sign a
new extension agreement, it declined to do so because it was concerned
about its ultimate withdrawal liability under the Pension Plan. The
Union continued to ask the Respondent to resume its contributions to
the Plan, including a request on July 28, but the Respondent did not
change its position.
we agree with the judge that the language in the Policy in
this case did not constitute a waiver by the Union of its
right to bargain over the Respondent’s obligation to con-
tinue making pension contributions once the collective-
bargaining agreement expired.
C. Discussion
Following the expiration of a collective-bargaining
agreement, an employer must maintain the status quo on
all mandatory subjects of bargaining until the parties
either agree on a new contract or reach a good-faith im-
passe in negotiations. Triple A Fire Protection, Inc., 315
NLRB 409, 414 (1994), enfd. 136 F.3d 727 (11th Cir.
1998), cert. denied 525 U.S. 1067 (1999). An employ-
er’s obligation to maintain the status quo includes “mak-
ing contributions to fringe benefit funds as specified in
the expired collective-bargaining agreement.” N. D. Pe-
ters & Co., 321 NLRB 927, 928 (1996). Pension plan
contributions that are required by an expired collective-
bargaining agreement are terms and conditions of em-
ployment that survive contract expiration, and such con-
tributions may not be unilaterally discontinued or other-
wise altered absent impasse or waiver. KBMS, Inc., 278
NLRB 826, 849 (1986). A union may waive its right to
maintenance of the status quo as to a particular term or
condition so long as the waiver, like the waiver of any
statutory right, is “clear and unmistakable.” Provena St.
Joseph Medical Center, 350 NLRB 808, 810–812
(2007). A clear and unmistakable waiver requires “bar-
gaining partners to unequivocally and specifically ex-
press 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.” Id. at 811.
In Cauthorne, the Board found that the union had
waived its right to bargain over postexpiration cessation
of pension contributions by agreeing to a provision of a
pension fund trust agreement that provided:
IT IS UNDERSTOOD AND AGREED that at the ex-
piration of any particular collective bargaining agree-
ment by and between the Union and any Company's
[sic] obligation under this Pension Trust Agreement
shall terminate unless, in a new collective bargaining
agreement, such obligation shall be continued.
256 NLRB at 722. The Board held that this provision con-
stituted a waiver because it expressed a clear intent to re-
lieve the employer of any obligation to make payments after
contract expiration. Id.
The Board has applied Cauthorne narrowly. In a se-
ries of cases, the Board has distinguished Cauthorne and
established that a clear and unmistakable waiver of the
STAFFCO OF BROOKLYN, LLC 3
obligation to continue providing fringe benefits after
expiration of the collective-bargaining agreement re-
quires explicit contract language authorizing an employer
to terminate its obligation to contribute to the funds. See
Schmidt-Tiago Construction Co., 286 NLRB 342, at 343
fn. 7, 365–366 (1987) (adopting the judge’s finding that
there was no contractual waiver because, unlike in Cau-
thorne, language in pension trust document did not spe-
cifically state that the employer's obligation to contribute
to the pension trust funds ended with the expiration of
the agreement; moreover, purported waiver language
appears to reflect the intent to comply with the require-
ments of Section 302 of the Act, rather than circumscrib-
ing the union’s statutory right to bargain over the pension
fund payments upon contract expiration); KBMS, Inc.,
278 NLRB at 849–850 (no waiver where, unlike in Cau-
thorne, pension trust language did not “deal with the
termination of the employer’s obligation to contribute to
the funds”).8 On the other hand, in Oak Harbor, supra,
358 NLRB at 328 fn. 2, the Board found a waiver where
the union “agreed to and signed” language providing that
the employer could cancel its pension obligations upon
the expiration of the collective-bargaining agreement by
written notification to the union and the fund. Notably,
the Board in Oak Harbor affirmed in relevant part the
judge's analysis, which clarified that “[s]ubsequent cases
distinguishing Cauthorne confirm that the Board will
only find a clear and unmistakable waiver of the obliga-
tion to continue providing trust payments where there is
explicit contract language authorizing an employer to
terminate its obligations.” Id. at 340 (emphasis added).
Here, the language in the Policy, in contrast to the pen-
sion plan language in Cauthorne and Oak Harbor, does
not state that the Respondent’s obligation to make pen-
sion fund contributions end with the expiration of the

8 See also AlliedSignal Aerospace, 330 NLRB 1216, 1216, 1228–
1229 (2000) (no waiver found where language in expired contract did
not address the employer’s postexpiration obligation to provide sever-
ance benefits), review denied sub nom. Honeywell International v.
NLRB, 253 F.3d 125 (D.C. Cir. 2001); and General Tire & Rubber
Co., 274 NLRB 591, 593 (1985) (no clear and unmistakable waiver
because the language in the agreement providing for pension and other
benefits did not address the employer’s statutory obligation to pay the
benefits after the contractual period ended), enfd. 795 F.2d 585 (6th
Cir. 1986); cf. Finley Hospital, 362 NLRB No. 102, slip op. at 4 fn. 6
(2015), reversed in part __ F.3d __, 2016 WL 3511487 (8th Cir. 2016),
(emphasizing that Cauthorne has been applied narrowly, the Board
found that the employer unlawfully discontinued pay raises provided
for in the parties’ collective-bargaining agreement upon the expiration
of the agreement where the contract language, in contrast with that in
Cauthorne, did not address any postexpiration conduct or obligations of
the employer).
current collective-bargaining agreement.9 Indeed, the
Policy does not address the Respondent’s postexpiration
pension contribution obligations in any way. Unlike in
Oak Harbor, the policy does not provide that the Re-
spondent may cancel its pension obligations when the
collective-bargaining agreement expires by notifying the
Union. Rather, like the controlling documents in KBMS,
Schmidt-Tiago, AlliedSignal, and General Tire, in which
the Board found no waiver, the Policy contains no ex-
press authorization of unilateral action by the Respond-
ent.
Our dissenting colleague acknowledges that the Policy
does not explicitly state that the Respondent’s statutory
obligation to continue contributions ceases. Rather, she
argues that the Union clearly and unmistakably waived
its right to bargain based on the Policy’s language that
“the employer’s participation in and status as an Em-
ployer under the Fund shall forthwith terminate” and that
the “service of [the Respondent’s] employees shall no
longer be credited under the Plan.” Obviously, this lan-
guage does not explicitly address the Respondent’s con-
tribution obligation as required by the Board’s prece-
dents. Although we agree with our colleague that a un-
ion’s waiver need not be stated with “lawyerly perfec-
tion,” it must explicitly authorize an employer to termi-
nate its obligation to continue providing benefits. There
is no such explicit authorization, lawyerly or otherwise,
in the Policy or in the precedent that our colleague at-
tempts to distinguish. The Policy simply sets forth the
Plan’s rules with respect to the Respondent’s status as an
Employer within the definition of the Pension Plan. It
does not show that the Union agreed that the Respondent
has no postexpiration obligations pertaining to pension
benefits. That the Respondent was no longer a partici-
pating employer under the Pension Plan after May 22,
did not relieve it of its statutory obligation as a party to
an expired collective-bargaining agreement to maintain
the status quo.
In the absence of waiver language, the dissent argues
that there is no “plain alternative explanation” for the
participation termination provision other than that the
parties intended it as an implicit waiver of this statutory
obligation. We disagree. The provision likely serves the
evident, and altogether different purpose of protecting
the Plan by limiting its liability under the Employee Re-
tirement Income Security Act of 1974 (ERISA)10 to em-
ployee participants for benefits based on service for
which it does not receive employer contributions. Thus,

9 We do not rely on the judge’s statement distinguishing Cauthorne
on the basis that the Board, in that case, “point[ed] specifically to the
[phrase] ‘IT IS UNDERSTOOD AND AGREED’” to find a waiver.
10 Pub. L. 93–406, 88 Stat. 832,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
once an employer has failed to pay contributions or to
agree to continue to contribute following contract expira-
tion, the plan provision effectively caps the Plan’s un-
funded liability for benefits at a maximum of 2 months of
service credit.11
Our colleague further maintains that the parties’ course
of conduct confirms that the Policy language constituted
a waiver. We find that the record shows otherwise. The
evidence establishes that the parties understood and
agreed that the language in the Policy required them to
have a current bargaining agreement or an extension of

11 Under ERISA, employees’ minimum benefit accrual is calculated
based on their years of service for a participating employer. See
ERISA § 204(b)(1), 29 U.S.C. § 1054(b)(1); 29 C.F.R. § 2530.210(a).
All service for a participating employer in a job classification covered
by the plan must be counted for purposes of benefit accrual. 29 C.F.R.
§ 2530.210(c). Neither the statute nor the regulations provide an ex-
ception to this requirement for a participating employer’s failure to
remit plan contributions for a period of service. Indeed, the plan is
required to count the unfunded service for accrual purposes if it wishes
to retain its tax-advantaged status. See Rev. Rul. 85-130 (1985); Dept.
of Labor Opinion No. 76–89 (1976). However, if the employer’s partic-
ipation in the plan is terminated, the employees’ subsequent service is
not for a participating employer and is not required to be counted for
accrual purposes.
This apparent purpose, to limit the Plan’s unfunded liability, is high-
lighted by the Policy’s statement, conjoined with the participation
termination provision, that “the service of such employer's employees
shall no longer be credited under the Plan.” The dissent reads this
clause as operating independently to halt employees’ benefit accrual.
For the reasons explained above, however, such language cannot law-
fully prevent employees’ covered service for a participating employer
from being counted for benefit accrual purposes. Thus, the Internal
Revenue Service has ruled that a plan provision denying service credit
for periods for which a participating employer did not remit contribu-
tions failed to comply with the ERISA-related provisions of the tax
code. Rev. Rul. 85–130. Or as the Department of Labor put it in Opin-
ion No. 76–89, such a provision would be “unlawful and unenforcea-
ble.” There is no basis to assume, as the dissent does, that the Policy
language concerning employer participation is intended to limit the
Plan’s liability solely in circumstances of lawful termination of pay-
ments upon contract expiration.
The dissent also argues that the Policy lacks a “mechanism” for the
Respondent to pay contributions after contract expiration. It does not
say what sort of payment “mechanism” it expected to see or why such a
“mechanism” would be needed—there is no apparent reason that the
contributions could not be remitted in the same way as before expira-
tion. The dissent appears to assume that the Plan would have refused to
accept postexpiration contributions. However, the judge correctly
found that the Respondent failed to prove that the Plan would not ac-
cept contributions in the absence of an unexpired agreement. Indeed,
the record is devoid of evidence that the Plan had ever rejected a ten-
dered contribution for that or any other reason. Moreover, neither the
dissent nor the Respondent has identified a provision of the Policy or
other relevant documents that would prohibit the Plan from receiving
postexpiration contributions. In fact, the trust agreement expressly
contemplates the admission “as a contributing Employer” of a “reenter-
ing Employer” pursuant to a resolution of the Plan trustees. The ab-
sence from the Policy of some kind of “mechanism” provision falls far
short of a clear and unmistakable waiver of the statutory contribution
obligation.
the agreement in order to continue the pension coverage.
The record does not establish, however, that the parties
understood that the expiration of the parties’ collective-
bargaining agreement would trigger the end of the Re-
spondent’s pension obligations. Indeed, following the
expiration of the initial collective-bargaining agreement
on May 28, 2012, the parties executed five exten-
sion/interim agreements in order to continue employees’
pension coverage. It seems clear that the Union’s under-
standing was that the Respondent would sign a contract
extension or interim agreement to maintain the employ-
ees’ pension coverage as it had done in the past; when
the Union realized that there would still be unit employ-
ees working after May 22, it repeatedly asked the Re-
spondent to execute another contract extension agree-
ment to remain current on its pension contributions for
those remaining employees.12 We agree with the judge’s
assessment that the “understanding that the parties must
have a current collective-bargaining agreement for the
continuation of coverage of the pension plan is . . . not
the same as the parties agreeing that the Union waived its
. . . statutory right to continuance of the status quo as to
terms and conditions after the expiration of the bargain-
ing agreement.”13
Accordingly, we find that the language within the Pol-
icy did not constitute a clear and unmistakable waiver of
the Respondent’s pension contribution obligation upon
expiration of the contract extension agreement on May
22.

12 We find it unnecessary to pass on the judge’s discussion as to
whether the parties reached impasse during the two bargaining sessions
in September and November, because the Respondent violated the Act
when, without providing the Union with notice and an opportunity to
bargain, it ceased its contributions to the Pension Plan months earlier,
on May 22.
13 The dissent points to a sentence in sec. 9.02 (Pension Plan) of the
collective-bargaining agreement as further evidence that the parties
clearly and unmistakably agreed to terminate the Respondent’s statuto-
ry contribution obligation upon termination of participation. But the
sentence merely states, “Such payments [contributions to the Plan] shall
be used by the Trustees of the . . . Plan for the purposes of providing
pension benefits for employees as the Trustees may from time to time
determine.” In other words, the sentence in which the dissent discerns
a waiver of a statutory right simply incorporates, and complies with, the
requirement of Sec. 302 of the Labor Management Relations Act, 1947,
that employer payments to a jointly trusteed pension fund be “made to a
separate trust which provides that the funds held therein cannot be used
for any purpose other than paying such pensions or annuities.” 29
U.S.C. § 186(c)(5)(B). Plainly, it does not address the Respondent’s
postexpiration obligations, and for understandable reason. Rather than
establishing a knowing waiver of a contractually established obligation
to fund pension contributions, the statutory duty to bargain supports the
expectation (absent clear proof to the contrary) that the contractually-
established obligation will continue if a successor agreement is not
reached. Like the other benefits and employment terms the Respondent
continued to fund after contract expiration, it had the obligation to
continue to fund the pension benefit.
STAFFCO OF BROOKLYN, LLC 5
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(5)
and (1) of the Act by discontinuing its contributions to
the NYSNA Pension Plan on May 22, 2014, we shall
order the Respondent to make whole its unit employees
covered by the pension plan by making all required con-
tributions to the plan that have not been made, including
any additional amounts due the plan, in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979). If the NYSNA Pension Plan will not accept such
contributions, the Respondent shall deposit an amount
equal to the required contributions in an escrow account
and negotiate with the Union over how the moneys will
be distributed to make the unit employees whole.14 Fur-
ther, the Respondent shall be required to reimburse its
unit employees for any expenses ensuing from its failure
to make the required contributions, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891, 891 fn. 2 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981). Such amounts
should be computed in the manner set forth in Ogle Pro-
tection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), with interest at the rate prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010).15
ORDER
The National Labor Relations Board orders that the
Respondent, StaffCo of Brooklyn, LLC, Brooklyn, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from

14 Absent a negotiated agreement, the distribution issue will be re-
solved in compliance proceedings. We also leave to the compliance
stage the question of whether the Respondent must pay any additional
amounts into the benefit fund in order to satisfy our “make whole”
remedy and any unresolved matters pertaining to the distribution of
funds from an escrow account. Merryweather Optical, 240 NLRB at
1216 fn. 7.
Contrary to the dissent, this contingent make-whole remedy for the
Respondent’s unlawful cessation of pension fund contributions does not
in any way support the view that the Union clearly and unmistakably
waived the right to bargain about the continuation of pension fund
benefits if the Plan would not accept them. Rather, it provides an alter-
native means, crafted within the Board’s broad remedial discretion, for
making employees whole in the event the Pension Plan refuses to ac-
cept contributions.
15 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin-
quent contributions during the period of delinquency, the Respondent
will reimburse the employee, but the amount of such reimbursement
will constitute an offset to the amount that the Respondent otherwise
owes the fund.
(a) Failing and refusing to bargain collectively and in
good faith with New York State Nurses Association (the
Union), as the exclusive representative of employees in
the following appropriate unit by unilaterally discontinu-
ing its contributions to the NYSNA Pension Plan:
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 regis-
tered professional nurses, including staff nurses, assis-
tant nursing care coordinators, case managers, and
community health coordinators, and Nurse Practition-
ers 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 La-
bor Relations Act.
(b) In any like or related manner interfering with, re-
straining, 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) Before implementing any changes in wages, hours,
or other terms and conditions of employment, notify and,
on request, bargain collectively and in good faith with
the Union as the exclusive representative of its employ-
ees in the appropriate unit.
(b) Upon the request of the Union, make all required
contributions to the NYSNA Pension Plan on behalf of
the above bargaining unit employees that have not been
made since May 22, 2014, including any additional
amounts owed to the fund, in the manner set forth in the
amended remedy section of this decision, and continue
such payments until an agreement has been reached with
the Union or a lawful impasse in negotiations occurs. If
the NYSNA Pension Plan will not accept such contribu-
tions, deposit an amount equal to the required contribu-
tions in an escrow account and negotiate with the Union
over how the monies will be distributed to make the unit
employees whole.
(c) Make unit employees whole for any expenses ensu-
ing from its failure to make the required pension contri-
butions, with interest, in the manner set forth in the
amended remedy section of this decision.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payments records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of monetary benefits
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Brooklyn, New York, copies of the attached
notice marked “Appendix.”16 Copies of the notice, on
forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. 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 such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since May 22, 2014.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 29, a sworn certi-
fication of a responsible official on a form provided by
the Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 26, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting.
Contrary to my colleagues, I read the relevant contrac-
tual language here to plainly authorize the Respondent’s
unilateral discontinuation of its pension fund contribu-
tions once the collective-bargaining agreement expired,

16 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
and thus to waive the Union’s right to bargain over the
postexpiration termination of those contributions.
The Pension Plan’s Policy for Continuation of Cover-
age, which was adopted by the parties, provides that
“[u]pon expiration or termination of a collective bargain-
ing agreement,” the Respondent’s “participation in and
status as an Employer under the Fund shall forthwith
terminate” and that the “service of [the Respondent’s]
employees shall no longer be credited under the Plan.”
In turn, employees shall be notified in writing “that the
[Respondent] is no longer maintaining the Plan” and that
their “covered employment . . . terminated on the expira-
tion/termination date of the collective bargaining agree-
ment.”
The determinative question is whether the parties, in
adopting the Policy’s continuation of coverage language,
clearly and unmistakably agreed that the Respondent
could discontinue pension fund contributions when their
collective-bargaining agreement expired. My colleagues
concede that the Policy’s language clearly establishes
that—in the absence of a collective-bargaining agree-
ment—the Respondent ceases to be an “Employer” in
connection with the pension plan. But they see no con-
nection between this change in status and the Respond-
ent’s statutory obligation to continue making pension
fund contributions. My colleagues emphasize that the
Policy does not expressly state that the Respondent’s
statutory obligation to continue contributions ceases. By
definition, however, terminating the Respondent’s pen-
sion “participation” necessarily means the cessation of an
ongoing relationship to the pension plan, including any
duty to make contributions to it. See Cauthorne Truck-
ing, 256 NLRB 721, 722 (1981) (pension plan language
simply providing that, as of the expiration of the collec-
tive bargaining agreement, the employer’s “obligation
under this [pension plan] shall terminate” unless contin-
ued in a new agreement, found to “expressly waive[]” the
union’s right to bargain over employer’s cessation of
pension contribution).
My colleagues maintain that Cauthorne permits a find-
ing of waiver only where explicit contract language au-
thorizes an employer to terminate its “obligation” to con-
tinue benefit-fund contributions after expiration of the
agreement. But Board law requires only that the parties’
intent to waive a right be clear and unmistakable, not that
the waiver be stated with lawyerly perfection. See Silver
State Disposal Service, , 326 NLRB 84, 86 (1998) (“The
‘clear and unmistakable’ standard for finding waiver of a
statutory right, however, does not ‘[require] more elabo-
rate evidentiary support than simply placing an objective
construction on a contract.’. . . . In short, the parties’ ac-
tual intent governs. . .”) (quoting Electrical Workers
STAFFCO OF BROOKLYN, LLC 7
IBEW Local 1395 v. NLRB, 797 F.2d 1027, 1031 (D.C.
Cir. 1986)). As explained, the parties' agreement to per-
mit the Respondent to end its “participation” in the plan
makes sufficiently clear that the Respondent necessarily
also was authorized to stop contributing to the plan.
Moreover, none of the post-Cauthorne cases cited by
my colleagues involved comparable language affirma-
tively providing for the postexpiration termination of an
employer’s “participation” in a plan, or any other lan-
guage clearly signaling that the employer would no long-
er be contributing to the plan. In Allied Signal, Inc., 330
NLRB 1216 (2000), for example, the language relied on
by the employer to justify its postexpiration cessation of
severance benefits was no more than a “Duration
Clause,” which merely specified the term of the parties’
agreement. That clause did not speak at all to the post-
expiration status of those benefits. Likewise, in KBMS,
Inc., 278 NLRB 826 (1986), and General Tire & Rubber
Co., 274 NLRB 591 (1985), the respective employers’
waiver arguments were based only on similar “duration”
language that did not address the employers’ postexpira-
tion relationships to the relevant funds or otherwise indi-
cate the fate of contributions to those funds. Finally, in
Schmidt-Tiago Construction Co., 286 NLRB 342 (1987),
the employer’s waiver argument was based on “pension
certification and declaration of trust” language that con-
ditioned the employer’s remittance and the pension
fund's acceptance of contributions on the existence of a
written agreement requiring those contributions. The
Board found no waiver based on that language because,
as found by the judge, the language was ambiguous with
respect to postexpiration contributions and, further, the
language appeared to have been drafted to address com-
pliance with Section 302 of the Labor-Management Re-
lations Act, not the parties’ respective postexpiration
rights. For the reasons given, there is no such ambiguity
in, or plain alternative explanation for, the relevant lan-
guage in the present case.1

1 My colleagues suggest that the Policy language here is not intended
to affect the Respondent’s postcontract obligation to make pension
contributions, but rather to protect the Plan from unfunded liability if
employees were to continue to accrue service credit toward their pen-
sion benefits. Under ERISA, they observe, a pension plan incurs liabil-
ity for service credit of employees in a participating employer regard-
less of employer contributions; hence, the Policy language here termi-
nates Employer participation and advises employees they will no longer
accrue credit.
But even were one to assume the relevance of avoiding unfunded
ERISA liability, such a purpose would actually reinforce the reading of
the Policy language as terminating Plan contributions. The reason for
including Policy language that provides for the termination of the Em-
ployer’s Plan participation, which cuts off liability for service-credit
under ERISA, is that such benefit accrual would be unfunded, i.e., the
employer would no longer be contributing toward the Plan. In other
Furthermore, my colleagues’ interpretation of the con-
tractual language leads to an anomalous result. If the
parties did not intend to permit the Respondent to discon-
tinue its pension contributions, then they surely would
have prescribed where or by what mechanism such con-
tributions would be made after the agreement expired—
but they did not, and no such mechanism is self-evident.
Nor is it apparent by what measure such contributions
would lead to the accrual of benefits for employees, par-
ticularly given the parties' express acknowledgement that
employees would “no longer . . . [be] credited” for their
service.
Relatedly, the remedy my colleagues order provides
that the Respondent may establish an escrow account to
receive contributions. But the need to create this alterna-
tive arrangement (of the majority’s own making) only
highlights that the parties simply did not expect contin-
ued contributions by the Respondent in the absence of a
successor or interim collective-bargaining agreement.
This conclusion is further confirmed by other language in
the parties' agreement plainly indicating that contribu-
tions would be made only to the Plan, or not at all. Thus,
section 9.02 of the collective-bargaining agreement spec-
ified that “Such payments [by the Employer] shall be
used by the Trustees of New York State Nurses Associa-
tion Pension Plan for the purpose of providing pension
benefits for employees as the Trustees may from time to
time determine.” (Emphasis added.) This language
demonstrates that the parties contemplated that the Re-
spondent's contributions would be remitted to and used
exclusively by the pension plan, and thus indicates that
the end of the Respondent's participation in the plan
would also mean the end of the Respondent's contribu-
tions.2

words, only if the Employer’s contributions would cease once the par-
ties’ contract expired would there be a reason to protect the Plan against
unfunded liability.
2 My colleagues argue that the lack of a mechanism for Employer
contributions is not evidence of waiver, pointing to the absence of
evidence that the Plan itself would not accept contributions after the
expiration of a collective-bargaining agreement. That the Plan might
simply accept a tendered contribution from a nonparticipating employer
does not alter the fact that ending “participation” in a plan necessarily
includes the termination of previously required financial contributions.
Regardless whether there the Plan might hypothetically be able to ac-
cept contributions from a non-participating entity, it strains belief to
think that the parties, after providing for the termination of Employer
participation, would have never discussed or contemplated how pension
contributions might be made in the absence of plan participation.
Here, the language of sec. 9.02 of the parties’ contract states that the
purpose of contributions to the Plan is to “provid[e] pension benefits
for employees.” In turn, the Policy language plainly reflects the par-
ties’ understanding that employees would no longer accrue benefits
under the Plan after contract expiration. If the purpose of contributions
to the Plan is to fund employee benefits, but employee benefits have
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
The parties’ course of conduct, in turn, confirms the
plain import of the Policy language. The parties were
aware of the need to have an agreement in place to main-
tain pension coverage, and accordingly they negotiated
several succeeding interim agreements and extensions.
Notably, in an October 2012 email, a Union representa-
tive wrote: “We need to send a signed . . . Interim
Agreement back to the fund . . . to continue the pension
benefit in the event we do not reach an agreement.” My
colleagues argue that this course of conduct merely sug-
gests that the parties understood that an agreement or
extension was necessary for pension coverage, but not
for continuation of pension contributions. But this ar-
gument again assumes that the parties, implausibly, con-
sidered continuing such contributions to be an obligation
that was somehow separate and apart from the mainte-
nance of a “pension benefit.” Moreover, it is unclear
what the purpose would be of making contributions, in
escrow or otherwise, if the parties understood that any
“benefit” to employees would require a contract exten-
sion. Indeed, a Union bargaining official testified that
the Union sought contract extensions “[p]rimarily be-
cause we wanted to make sure that the Pension Fund
contributions would continue from—that the Pension
Fund would accept contributions from the Employer,”
thus implying her understanding that contributions were
synonymous with the “pension benefit.” Another Union
bargaining representative testified that the Union typical-
ly would seek a successor agreement or an extension and
“we would execute a document based on our discussion
of the desire to continue pension contributions.” (Em-
phasis added.)
For these reasons, I believe that the Policy clearly and
unmistakably reflects the parties’ intent to end the Re-
spondent’s postexpiration contribution obligation. The
bar for establishing waiver of a statutory right is high.
But it can be surmounted if the parties’ agreement plain-
ly evidences an intent to waive the right. Because the
language adopted by the parties, when examined in light
of the ordinary meaning of the words the parties consent-
ed to, demonstrates the clear intent to permit the Em-
ployer to cease its contributions upon expiration of the
parties’ agreement, I would find such a waiver here.
Accordingly, I would find no violation in the Respond-
ent’s unilateral termination of pension contributions and
would dismiss the complaint.
Dated, Washington, D.C. August 26, 2016

ceased to accrue when the parties’ contract expires, it is difficult to see
how the parties could have intended anything other than the Employer’s
postexpiration cessation of Plan contributions, in the absence of any
mechanism or purpose for the plan to make use of them.
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with New York State Nurses Associa-
tion (the Union), as the exclusive representative of our
employees in the following appropriate unit by unilater-
ally discontinuing our contributions to the NYSNA Pen-
sion Plan:
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 regis-
tered professional nurses, including staff nurses, assis-
tant nursing care coordinators, case managers, and
community health coordinators, and Nurse Practition-
ers 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 La-
bor Relations Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, before implementing any changes in your
wages, hours, or other terms and conditions of employ-
ment, notify and, on request, bargain collectively and in
good faith with the Union as your exclusive bargaining
representative.
STAFFCO OF BROOKLYN, LLC 9
WE WILL, upon the request of the Union, make all re-
quired contributions to the NYSNA Pension Plan on be-
half of the bargaining unit employees that have not been
made since May 22, 2014, including any additional
amounts owed to the fund,, and we will continue such
payments until an agreement has been reached with the
Union or a lawful impasse in negotiations occurs. If the
NYSNA Pension Plan will not accept such contributions
and credit employees for such contributions, WE WILL
deposit an amount equal to the required contributions to
an escrow account and negotiate with the Union over
how the moneys will be distributed to make the unit em-
ployees whole.
WE WILL make unit employees whole for any expenses
ensuing from our failure to make the required pension
contributions, with interest.
STAFFCO OF BROOKLYN, LLC
The Board’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 Re-
lations Board, 1015 Half Street SE, Washington, D.C.
20570, or by calling (202) 273-1940.
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 de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following

1 All dates are in 2014 unless otherwise indicated.
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 medi-
cal 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 Sec-
tion 2(2), (6), and (7) of the Act. The Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that StaffCo of Brooklyn, LLC (Re-
spondent 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 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 bargain-
ing with the Union to an overall good-faith impasse for a suc-
cessor 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).
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 high-
lighted stipulated facts are as follow
1. StaffCo is a registered New York State Professional Em-
ployer 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, graduate schools, hospitals, and
other health care facilities.
3. On May 29, 2011, SUNY acquired Long Island College
Hospital (LICH) in Brooklyn, New York.
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 Down-
state contracted with StaffCo to hire and employ the nonphysi-
cian staff at the LICH facilities.
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 bargaining unit of registered

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.
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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
nurses and Nurse practitioners.4
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
StaffCo to complete an acknowledgement form and become
bound by the terms and provisions of the “Agreement and Dec-
laration 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
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 “Re-
quirements for Admission” (Jt. Exh C).
11. The NYSNA Pension Plan’s “Requirements of Admis-
sion” also required that nothing 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 em-
ployer’s withdrawal liability is dependent upon the length of
participation in the NYSNA Pension Plan. In the event an em-
ployer participates for less than 3 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).
13. Shortly after executing the CBA with NYSNA, StaffCo
completed and executed an Acknowledgment of Trust Agree-
ment for the NYSNA Pension Plan pursuant to which it became
bound to the terms and provisions of the “Agreement and Dec-
laration of Trust” establishing the NYSNA Pension Plan (on
Jan. 13, 2012) (Jt. Exh. B).
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 be-
tween NYSNA and an employer (Jt. Exh. F).5

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 bar-
gaining 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 exclud-
ing supervisory, confidential, executive and managerial employees, and
all other employees, guards and supervisors within the meaning of the
National Labor Relations Act.”
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-bargaining agreement if the em-
ployer continues to make contributions to the plan and submits a new
agreement, contract extension, or an interim agreement.
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 extend-
ed effective May 29 through December 31, 2012 (Jt. Exh. G)
16. On September 6, 2012, the NYSNA Pension Plan sent
StaffCo and NYSNA a letter notifying the recipients that Staff-
Co's participation in the NYSNA Pension Plan would terminate
if the NYSNA Pension Plan did not receive a new fully execut-
ed collective-bargaining agreement or interim agreement be-
tween NYSNA and StaffCo on or before the expiration of the
contract extension agreement on December 31, 2012. Enclosed
within the NYSNA Pension Plan’s September 6, 2012 letter to
StaffCo and NYSNA was: (1) the NYSNA Pension Plan’s
“Policy tor Continuation of Coverage upon Expiration of a
Collective Bargaining Agreement,” (2) a form interim agree-
ment, and the NYSNA Pension Plan's “Agreement and Decla-
ration of Trust” (Jt. Exh. H).
17. On December 3, 2012, StaffCo and NYSNA executed an
interim agreement effective January 1, 2013, through June 30,
2013 (Jt. Exh. I).
18. In February 2013, the SUNY Board of Trustees ap-
proved the closure of LICH to address SUNY Downstate Medi-
cal 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.
19. On February 20, 2013, NYSNA (among other petition-
ers) 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 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, in-
cluding NYSNA's members, in writing regarding the imminent
closure of the LICH facilities and associated layoffs pursuant to
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 connection with the NYSNA lawsuit.
23. On April 30, 2013, the NYSNA Pension Plan sent Staff-
Co 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 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 Cover-
age upon Expiration of a Collective Bargaining Agreement"
and a form second interim agreement (Jt. Exh. J).
24. On May 30, 2013, StaffCo and NYSNA executed a sec-
ond 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 "Re-
STAFFCO OF BROOKLYN, LLC 11
quirements for Admission" and "Policy for Continuation of
Coverage upon Expiration of a Collective Bargaining Agree-
ment" (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 ter-
minate 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 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 Staff-
Co notifying them that their coverage under the NYSNA Pen-
sion 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
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).
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.
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 NYSNA Pension Plan
(Jt. Exh. O).
30. On April 22, 2014, the NYSNA Pension Plan sent Staff-
Co 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 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 noti-
fying them that their coverage under the NYSNA 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 most recent con-
tract 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 notifying the recipients that, pursuant
to the NYSNA Pension Plan's "Policy for Continuation of Cov-
erage Upon the Expiration of a Collective Bargaining Agree-
ment," 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 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 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 noti-
fying them that their coverage under the NYSNA Pension 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 exe-
cuted collective-bargaining agreement or interim agreement (Jt.
Exh. S)
35. On July 28, NYSNA and StaffCo attended a labor man-
agement committee meeting at StaffCo's offices.
36. On July 31, 2014, NYSNA sent StaffCo a letter request-
ing 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 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 re-
sume making payments into the NYSNA Pension Plan retroac-
tive to May 22, 2014.
38. On October 28, 2014, the New York State Attorney Gen-
eral 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 contin-
ued to employ, pursuant to its staffing contract with SUNY
Downstate, four NYSNA members as nurse practitioners at
StaffCo's "school-based" programs.
40. From October 31, 2014 through the date of this stipula-
tion, StaffCo employs four NYSNA members as nurse practi-
tioners, 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 members described in this
paragraph fall within the bargaining unit described in Section 1
of the NYSNA-StaffCo collective-bargaining agreement effec-
tive May 29, 2011—May 28, 2012.
41. On November 11, 2014, NYSNA and StaffCo participat-
ed in a collective-bargaining session. At that session, the par-
ties discussed health and retirement benefits and the pension
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.
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
the status quo with respect to the terms and conditions of em-
ployment 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 dur-
ing negotiations on a successor agreement when the Respond-
ent unilaterally modified the terms and conditions of the ex-
pired contract since May 22.
The Respondent argues that the NYSNA pension plan re-
quires 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 permit-
ted to contribute to the plan after the expiration of the agree-
ment without an extension or an interim agreement. The Re-
spondent further contends that NYSNA waived its right to bar-
gain 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.
V. TESTIMONY OF WITNESSES
Eric Smith (Smith) testified that he was and is the lead pro-
gram representative for NYSNA and was intimately involved
with representing the bargaining unit since July 2013 in all
matters such as negotiations for contracts, grievances, arbitra-
tions and union organizing. He assisted in the negotiations for
the three contract extensions to the agreement. He testified that
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 testi-
fied to a meeting with the Respondent on May 20 regarding the
additional layoff of 42 unit employees by May 22.6 Smith indi-
cated that David Pappalardo (Pappalardo), Francesca Tinti
(Tinti) and Barbara Maffai were in attendance 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 contribu-
tions and to execute another extension by May 22, which was
the expiration date of the 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

6 Smith testified that there was no point in negotiating a new agree-
ment 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 con-
tract 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).
StaffCo, he would request of the Respondent to get an exten-
sion signed and a contract extension would be executed at a
later date (Tr. 54).
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 Re-
spondent 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 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 re-
mained after the May 22 deadline. Smith testified that the Un-
ion and StaffCo met on July 9 to discuss the aftermath of the
layoffs regarding such items as terminal benefits payouts, prop-
er 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 concern for StaffCo and the
employer “weren’t going to get current” with its contribution to
the pension fund10 (Tr. 34, 35).
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 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 exten-
sion, but he is not personally aware of those discussions. Dur-
ing 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 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

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.
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 cer-
tain information in the July 31 letter that it believe necessary and rele-
vant in preparation for the bargaining. The information was provided
by the Respondent to the Union by letter dated August 7(Jt. Exh. U).
STAFFCO OF BROOKLYN, LLC 13
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 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 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 Respond-
ent’s contributions to the pension plan (Tr. 80, Jt. Exh. G).13
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 con-
cerned 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 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).
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 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 Sep-
tember 4 to bargain and informed the Respondent that approx-
imately 38 unit nurse practitioners remained in the employ of
the Respondent (GC Exh. 3, Tr. 87). Green said there 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 pro-
posals to the Respondent at the September 22 session, including
a proposal on the pension. Smith testified that the union pro-
posal on the pension was for the Respondent “. . . get current
on their obligations . . . missed from May 22 onward and con-
tinue 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 contribution.

13 As stipulated, nothing changed in the subsequent extensions and
interim agreements to the CBA with regard to the Respondent’s contri-
butions to the pension plan until May 22, when the Respondent ceased
its contribution to the plan.
The meeting concluded without a resolution to the pension
issue (Tr. 37).
Smith testified that the next bargaining session was on No-
vember 11. He said that Clark, Pappalardo, and Tinti were
again at this meeting. At the November 11 meeting, the Re-
spondent presented two economic proposals dealing with health
benefits and the pension 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 Respond-
ent 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 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 bene-
fits (Tr. 73, 74).
Francesca Tinti (Tinti) testified that, as the assistant HR vice
president, she is responsible for hiring and training new em-
ployees, 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 nonphysi-
cian 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 fund and notices received from
the fund warning of the pension termination without an exten-
sion or interim agreement. Tinti testified that the Respondent
and the Union would agree to short (usually 6 months) exten-
sions or interim agreements because the closure date for LICH
kept being delayed (Tr. 105–108, 113–117).
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 testified that StaffCo and the Union negotiated layoffs in
connection with the potential closure of LICH and the Re-
spondent issued the appropriate WARN notices to the unit em-
ployees. Tinti thought that LICH was due to close in June
2013, but lamented to a number of delays with the closure (un-
til 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 partici-
pate 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

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
year, StaffCo’s liability for withdrawing from the pension fund
would be over $2 million (Tr. 112,113).
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 ex-
tension (Tr. 117, 118).
Tinti testified that the Union never requested to bargain for a
successor agreement or for another contract extension of pen-
sion benefits from March 13 (the signing of the last contract
extension) through May 22 (expiration date of the last exten-
sion). The pension plan also provides for a 60-day cure period
that permits an employer to return to the plan after the expira-
tion 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 infor-
mation to bargain on July 31, 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 em-
ployees (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
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 Staff-
Co’s response to the union proposal to retain the pension plan
(Tr. 123–126).
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. Accord-
ing to Clark, he would make changes in the draft; briefly speak
to Green over the proposed language of the draft; and the par-
ties 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 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 be-
fore 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 agreed to remain
in “status quo” with extensions and interim agreements execut-
ed to the expired CBA in order to maintain the pension fund
requirement that the parties must have a 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 re-
quirements, 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 Re-
spondent 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 peri-
od because the pension fund only considers the 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 pen-
sion 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).
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 de-
nied 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 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 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 em-
ployer 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.
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 willing to
accept the union health benefits plan for its four unit employ-
ees. There has not been another bargaining session after No-
vember 11 (Tr. 144–152).
Discussion and Analysis
The sole issue in this complaint is whether the Respondent
violated Section 8(a)(5) and (1) of the Act when it ceased con-
tributing to the pension fund. Here, it is undisputed that the

16 Stipulations #47, 48, and 49 at Jt. Exh. Y.
STAFFCO OF BROOKLYN, LLC 15
Respondent maintained the status quo with respect to all the
terms and conditions of the expired contract except for termi-
nating the contributions to the pension fund.
The Respondent asserts three defenses for ceasing contribu-
tions 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 pen-
sion benefits (See, R Br. and Respondent’s answer to the com-
plaint).
a. Credibility
The credibility resolutions herein have been derived from a
review of the entire testimonial record and exhibits, with due
regard for the logic of probability, the demeanor of the witness-
es, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S.
404, 408 (1962). A credibility determination may rely on a
variety of factors, including the context of the witness’ testimo-
ny, the witness’ demeanor, and the weight of the respective
evidence, established or admitted facts, inherent probabilities,
and reasonable inferences that may be drawn from the record as
a whole. Double D Construction Group, 339 NLRB 303, 305
(2003); Daikichi Sushi, 335 NLRB 622, 623 (2001). Credibil-
ity findings need not be all-or-nothing propositions—indeed,
nothing is more common in all kinds of judicial decisions than
to believe some, but not all, of a witness’ testimony. Daikichi
Sushi, above.
b. Mandatory subject of bargaining
The general rule is that when parties are engaged in negotia-
tions for a new agreement, an employer’s obligation to refrain
from unilateral changes encompasses a duty to refrain from
implementation unless and until an overall impasse has been
reached on bargaining for the agreement as a whole. Pleas-
antview Nursing Home, 335 NLRB 96 (2001), citing Bottom
Line Enterprises, 302 NLRB 373 (1991). It is clear that contri-
butions to a pension fund, like health insurance, is a mandatory
subject of bargaining. Hen House Market No. 3, 175 NLRB 596
(1969) (“The pension, health, and welfare plans provided for by
the expired contract constituted an aspect of employee wages
and a term and condition of employment which survived the
expiration of the contract and could not be altered without bar-
gaining.”); S. Nuclear Operating Co. v. NLRB, 524 F.3d 1350,
1356 (D.C. Cir. 2008) (explaining that the Supreme Court has
“. . . made clear that retirement benefits for current employees
are mandatory bargaining subjects.”); also, Wire Products Mfg.
Corp., 329 NLRB 155 (1999); Dynatron/Bondo Corp ., 323
NLRB 1263 (1997).
c. The Respondent’s waiver defense
The Respondent concedes that Section 8(a)(5) creates a stat-
utory obligation of the employer to maintain the same terms
and conditions of employment that exists prior to the expiration
of the contract. However, the Respondent maintains that the
Union clearly and unmistakably waived the employer’s obliga-
tion to continue making pension fund contributions upon the
expiration of the contract on May 22 (See Respondent’s answer
to the complaint at par. 5 and R. Br. at 24). The Respondent
maintains that the terms of the contract, as agreed to by the
Union, also negated StaffCo’s statutory duty to maintain the
status quo by continuing to 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 employ-
ment of represented employees without providing the Union
with prior notice and an opportunity to bargain over such
changes. See NLRB v. Katz, 369 U.S. 736, 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, bargain-
ing would become difficult. Litton Financial Printing Division
v. NLRB, 501 U.S. 190, 198 (1991). An employer may escape
liability for a unilateral change if it proves that a union has
expressed or implied a “clear and unmistakable waiver” of its
right to bargain. American Broadcasting Co., 290 NLRB 86,
88 (1988); California Pacific Medical Center, 337 NLRB 910
(2002). A waiver occurs when a union knowingly and volun-
tarily relinquishes its right to bargain about a term and condi-
tion of employment and cedes 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 ar-
gument that the unions incorporated the benefit plans’ reserva-
tion of rights clauses into the contract based on a “course of
conduct” of 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
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 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,
(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 im-
plied waiver in the collective-bargaining agreements, in any of
the extensions and interim agreements, or in the pension plan
policy for continuation of coverage upon expiration of a collec-
tive-bargaining agreement. I also find that the Union never
waived its right to bargain over the pension plan contribution.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
The record shows, and as stipulated by the parties, there was
a collective-bargaining agreement 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 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 extension from Jan-
uary 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 collec-
tive-bargaining agreement 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 Si-
geler, Inc., 293 NLRB 446 (1989) (The Board found, 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 collective-
bargaining agreement and are a mandatory subject of bargain-
ing 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 contractu-
al rules that bind the employer, and instead cedes full discretion
to the employer on that matter. For that reason, the courts re-
quire ‘clear and unmistakable’ evidence of waiver and have
tended to construe waivers narrowly.” Dept. of the Navy, Ma-
rine Corps Logistics Base, above, at 57. “[C]lear and unmis-
takable waivers have been inferred from the structure of collec-
tive bargaining agreements and from bargaining history show-
ing that the parties have ‘consciously explored’ or ‘fully dis-
cussed 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 employ-
er lawfully made unilateral changes to a tax shelter annuity
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 man-
agement-rights clause was included in a contract explicitly
referring to layoffs along with a history of uncontested work
relocation and layoffs); California 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 re-
quests to bargain).
I find no such implied waiver has been established from the
parties’ prior bargaining history, past dealings, or other unilat-
eral changes in the CBA. The Union, in agreeing to a contrac-
tual 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 ex-
pressed waiver of the Union’s 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). 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 de-
livered 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 maintain the terms and con-
ditions 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 employer’s obligation to make contributions to the
pension plan merely reflects the amount to be paid to each em-
ployee and which employees were covered.17 Consequently, the
focus turns on 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 Respondent maintains that the under-
standing and agreement by the Union with this language was an
explicit waiver by the Union of the obligation of the employer

17 Similarly, I find that the Union never understood that the last ex-
tension expiring on May 22 was for the Respondent to avoid withdraw-
al liability and therefore, a clear and unmistakable waiver by the Union.
I credit Smith’s testimony that May 22 was established as the expira-
tion date for the last extension because it was anticipated that LICH
would be closed after that date and StaffCo would cease having bar-
gaining unit employees and not as waiver of the pension plan contribu-
tions postexpiration of the contract.
-
STAFFCO OF BROOKLYN, LLC 17
to continue providing pension fund payments. The language
referenced by the Respondent is in section D “Policy for Con-
tinuation of Coverage upon Expiration of a Collective Bargain-
ing Agreement” (Jt. Exh. F) and states:
Upon expiration or termination of a collective-
bargaining agreement, if (i) the employer has not sub-
mitted 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 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 em-
ployer'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 thereaf-
ter, that the employer is no 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 Harbor Freight Lines, Inc., 358
NLRB 328 (2012), for the proposition that an employer’s obli-
gation 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.
In Cauthorne, the Board held that health and welfare and
pension fund plans which are part of an expired contract consti-
tute an aspect of employee wages and a term and condition of
employment which survives the expiration of the contract. Cau-
thorne, 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 Board found that contrary to
Cauthorne’s assertions, the trust fund agreements merely re-
ferred 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 bar-
gain regarding changes in the employees’ terms and conditions
of employment. The Board noted that the fund trust agree-
ments contain no other language which might limit an employ-
er’s obligation to bargain regarding cessation of payments into
the fund. However, with regard to the pension fund in Cau-
thorne, 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 waiv-
er
It is understood and agreed that at the expiration of any
particular collective bargaining agreement by and be-
tween the Union and any Company's obligation under
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 col-
lective-bargaining agreement required the employer to be
bound by the pension fund agreement. The judge in Oak Har-
bor 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 pay-
ments after contract expiration. Oak Harbor, above, slip op. at
14. The Board agreed and found in Oak Harbor that the pen-
sion fund agreement explicitly stated that the employer could
cancel its obligation to contribute to the fund upon the expira-
tion 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
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 is absent from
the NYSNA Pension Plan and the Union never understood and
agreed that the expiration of the collective-bargaining agree-
ment 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 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 Prove-
na, 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 in bar-
gaining 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 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, specif-

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).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
ically states that Respondent’s obligation to contribute to the
pension trust fund ends with the expiration of the current col-
lective-bargaining contract,” 286 NLRB at 366. In Parsons
Electric, 361 NLRB No. 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
The counsel for the General Counsel cites to Cofire Paving
Corp., 359 NLRB 180 (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 unnec-
essary to analysis the instant situation under Cofire. The Board
has held in Katz, above, that an employer is required to main-
tain 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
Likewise, I reject the argument that the Union waived its
right to bargain over the termination of the employer’s contri-
butions 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 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 allegation that
the Union failed to pursue arbitration over the pension contribu-
tions, Section 9.02 of the collective-bargaining agreement

19 The counsel to the General Counsel, in her closing brief, urges the
Board to adopt Finley Hospital, 359 NLRB 156 (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 find
that Finley Hospital rationale is legally persuasive, but my determina-
tion 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. Assum-
ing 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.
states, in part, that if the employer fails to make timely contri-
butions (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 have survived on such as postexpi-
ration 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 Re-
spondent’s statutory obligation to maintain the status quo of the
expired contract as opposed to a contractual obligation to use
the collective-bargaining agreement arbitration procedures.
Consistent with Katz, I find it was the obligation of the Re-
spondent 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.
d. The Respondent’s other defenses
The Respondent makes two additional affirmative defenses.
The Respondent argues that it was impossible to continue mak-
ing contributions to the pension plan unless the parties have
current bargaining agreement and the Respondent had in fact
complied with all the bargaining obligations it may have with
the Union.
First, the Respondent maintains that it is excused from mak-
ing contributions after the expiration contract because the
NYSNA Pension Plan would not accept the contributions with-
out a current agreement. The Respondent did not actually es-
tablish that the contributions 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 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 employ-
ees until the parties reached a new agreement on the subject or
bargained to an impasse.
Second, the Respondent maintains that it had and continues
to comply with its bargaining obligation with the Union. Con-
trary to the Respondent’s contentions, I find that the Respond-
ent violated Section 8(a)(5) when it failed to bargain with the
Union to impasse on the issue of the pension fund contribu-
tions. 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
STAFFCO OF BROOKLYN, LLC 19
is barred from raising impasse as a defense, the record reveals
that witnesses Green and Smith were examined by the parties
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.
To the extent that impasse was argued by the Respondent as
a defense, it is clear that the Board does not lightly find an im-
passe. 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 war-
ranted in assuming that further bargaining would be futile and
where both parties believe that they are “at the end of their
rope.” The Board considers 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 bargain-
ing sessions (Sept. 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 its
obligation to specifically bargain over the unilateral change and
on preserving the pension plan contributions. I credit the testi-
mony 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 the Respondent over this
unilateral change. At this point, once the Respondent had no-
ticed the Union of its unilateral change in the pension plan sub-
ject matter, the Respondent was obligated to bargain over this
change and to preserve the level of contributions until the par-
ties 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 pro-
vided the Union 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.
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.
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 pro-
fessional nurses, temporary employees, as defined in Section
4.04 of the collective bargaining agreement, and persons au-
thorized by permit to practice as registered professional nurs-
es, 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 Re-
lations 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 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.
REMEDY
Having found that the Respondent has engaged in certain un-
fair 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 Respondent shall be required to make
whole its bargaining unit employees for any losses they suf-
fered or expenses they incurred, including benefits to their pen-
sion plan, which resulted from the Respondent’s unlawful ter-
mination of its contribution to the pension plan on May 22,
2014.
On these findings of fact and conclusion of law and on the
entire record, I issue the following recommend22
ORDER
The Respondent, StaffCo of Brooklyn, LLC, Brooklyn, New
York, its officers, agents, successors, and assigns, shall
1. Cease and Desist from
(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 Un-
ion as the exclusive representative of employees in the appro-
priate unit set forth above by unilaterally modifying the terms
and conditions of employment of the unit by failing and refus-
ing to make contributions to the pension plan without having
reached a valid impasse.
(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 effec-
tuate the purposes and policies of the Act.
(a) Upon request by the Union, bargain collectively in good
faith with the Union as the exclusive representative of the em-
ployees in the bargaining unit set forth above, and embody any
understanding reached in a signed agreement.

22 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
(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.
(c) Upon the request of the Union, make pension contribu-
tions to the NYSNA Pension Plan on behalf of the above bar-
gaining 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 of no less than 1.5 percent per month consistent
with the plan. If the NYSNA Pension 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 es-
crow account as negotiated with the Union.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payments rec-
ords, 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 mone-
tary benefits due under the terms of this Order.
(e) Within 14 days, post at the Respondent’s Brooklyn, New
York facility a copy of the attached notice marked “Appen-
dix.”1723 Copies of the notice, on forms provided by the Re-
gional Director for Region 29, after being signed by the Re-
spondent’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 notices to employees are customarily posted. Reasona-
ble steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In addition to physical posting of paper notices, the notic-
es 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 employ-
ees by 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.
(f) Notify the Regional Director in writing within 21 days
from the date of this Order.
Dated: Washington, D.C. May 21, 2015
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

23 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an 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 be-
half
Act together with other employees for your benefits
and protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT refuse to bargain collectively with the Union
(New York State Nurses Association) as your exclusive repre-
sentative of the employees in the following unit:
All full-time, regular part-time and per diem registered pro-
fessional nurses, temporary employees, as defined in Section
4.04 of the collective bargaining agreement, and persons au-
thorized by permit to practice as registered professional nurs-
es, 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 Re-
lations Act.
WE WILL NOT unilaterally discontinue the pension plan con-
tributions 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 con-
tributions 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 con-
ditions 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, re-
strain, 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 termi-
nated.
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 col-
lectively in good faith with the Union as the exclusive repre-
sentative 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
STAFFCO OF BROOKLYN, LLC 21
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.