Hempstead Park Nursing Home

National Labor Relations Board - Administrative Judge Opinions

Mar 27, 2003

29-CA-025339 (N.L.R.B. Mar. 27, 2003)

JD(NY)–14-03
Queens, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE

HEMPSTEAD PARK NURSING HOME

AND CASE 29-CA-25339

NEW YORK STATE NURSES ASSOCIATION,
UAN, AFL-CIO

Kathy DrewKing Esq., Counsel for the
General Counsel
Morris Tuchman Esq., Counsel for
the Respondent
Richard J. Silber Esq., Counsel for
the Union

DECISION

Statement of the Case

Raymond P. Green, Administrative Law Judge. I heard this matter on March 6, 2003.
The charge was filed on December 23, 2002 and the Complaint was issued on January 17, 2003.
In pertinent part, the Complaint alleged that on or about March 21, 2002, the Union and the
Company reached a complete agreement on a new contract to replace an agreement that ran from
March 1, 1998 to February 28, 2001. The Complaint further alleged that since September 10,
2002, the Employer has failed and refused to execute a written collective bargaining agreement
despite requests to do so by the Union.

Based on the evidence as a whole, and after consideration of the arguments of counsel, I
hereby make the following

Findings and Conclusions

1. Jurisdiction

It is admitted that the Respondent is engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act. It also is admitted that the Union is a labor organization within the
meaning of Section 2(5) of the Act.

11. Concluded Findings

Section 8(d) of the Act states:

For the purposes of this section, to bargain collectively is the performance of the mutual

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obligation of the employer and representative of the employees to meet at reasonable
times and confer in good faith with respect to wages, hours, and other terms and
conditions of employment, or the negotiation of an agreement or any question arising
thereunder, and the execution of a written contract incorporating any agreement reached
if requested by either party, but such obligation does not compel either party to agree to a
proposal or require the making of a concession....

Prior to the enactment of Section 8(d) the Supreme Court reached essentially the same
result in H.J. Heinz Co. v NLRB 311 U.S. 514 (1941) In that case the Court held that once the
parties have reached an oral agreement, the employer may not refuse to sign it.

The freedom of the employer to refuse to make an agreement relates to its terms in
matters of substance and not, once it is reached, to its expression in a signed
contract, the absence of which, as experience has shown, tends to frustrate the end
sought by the requirement for collective bargaining. A businessman who entered
into negotiations with another for an agreement having numerous provisions with
the reservation that he would not reduce it to writing or sign it, could hardly be
thought to have bargained in good faith. This is even more so in the case of an
employer who, by his refusal to honor, with his signature, the agreement which he
has made with a labor organization, discredits the organization, impairs the
bargaining process and tends to frustrate the aims of the statute to secure industrial
peace through collective bargaining.

In Albertson's Inc. d/b//a Grocery Warehouse 312 NLRB 394.

We agree with the judge ... that the Respondent violated Section 8(a)(5)... by
failing and refusing to assist in the reduction to writing of the November 27, 1991
agreement and to sign the final collective-bargaining agreements. The Union reduced
the November 27, 1991 agreement to writing on or about April 2, 1992. The
Respondent subsequently mailed corrections to the Union on January 4 and 11 1993
and the Union did not object to these corrections. The judge failed to include all of
these documents in her description of the collective-bargaining agreements to be
signed by the Respondent. In order to effectuate the policies of the Act, we find that
the Respondent must be required to sign the agreements the Union forwarded to the
Respondent on or about April 2, 1992 as modified by the Respondent's corrections of
January 4 and 11, 1993, that are not disputed by the Union....

In Amalgamated Clothing Workers of America (Henry I. Siegel Co.) v NLRB 324 F.2d.
228 (2nd Cir., 1963) the Court held that the duty to bargain under Section 8(d) included "the
obligation to assist in reducing the agreement reached to writing."

In Georgia Kraft Co., 258 NLRB 908, 912 (1981), the Board held that some minor
deviations and typographical errors in the proposed contract did not demonstrate a lack of
agreement, allowing the Respondent to refuse to execute a signed collective bargaining
agreement. The Board stated:

A review of this document reflects some minor deviation from the
proposals submitted by Respondent and agreed to by the Union.... We nonetheless

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conclude that any deviation is not indicative of lack of agreement... but is rather
the result of Respondent's own refusal to acknowledge the existence of an
agreement, as well as its refusal to assist the Union in reducing the agreement to
writing.... 1

The prior collective bargaining agreement ran for a term from March 1, 1998 to February
28, 2001. That agreement covered a unit of:

All full-time, part-time, per diem and temporary employees licensed or otherwise
lawfully entitled to practice as a registered professional nurse employed by the
Employer to perform registered professional nursing as a Staff Nurse, Assistant
Head Nurse or Nurse Practitioner, excluding the Director of Nursing, Associate
Director of Nursing, Unit Directors, Nursing Care Coordinators or Supervisors of
Nursing.

The parties stipulated that they agreed on a new contract, which was executed in the form
of a Memorandum of Agreement on March 22, 2002. That Memorandum contained the
substantative terms of an agreement but was not a fully integrated contract. In that regard, the
opening page states; “Upon ratification, the parties agree to execute a forma document
integrating the terms of the MOA and the expired agreement.” The Memorandum also states;

Any and all terms and conditions of employment of the March 1, 1998 to
February 28, 2001 agreement, letters of understanding, or otherwise, not
specifically addressed by this Memorandum of Agreement shall remain
unchanged, and are hereby incorporated into this Memorandum of Agreement.

Insofar as relevant to the present case, the following two provisions of the Memorandum
of Agreement are noted.

First, at page 9, the parties agreed to delete all references to “clinical-division” in
paragraph 5.06 of the previous contract, which dealt with the recall of laid off workers. In the
old contract, the relevant language was; “Whenever a vacancy occurs with a clinical division,
employees from that clinical division who are on layoff and have the ability and qualification to
do the work shall be recalled in accordance with their clinical division seniority in the reverse
order in which they were laid off.”

Second, at 17 of the Memorandum of Agreement, which deals with pension
contributions, it states:

Insert new rates as determined by Trustees.

yr 1 - $0
yr 2 – 4968
yr 3 – 5613

1 See also New Orleans Stevedoring Co., 308 NLRB 1076, 1081 (1992).

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In the previous contract, Paragraph 9.03 describes the Union’s Pension Plan and sets
forth amounts to be paid by the employer. In pertinent part, that agreement provided that
effective commencing March 1, 1998, (the date of the agreement), to December 31, 1998, the
employer was to contribute $2900 per annum, per full-time employee; that effective January 1,
1999 to December 31, 1999, such contributions will be $0 per annum, per such full-time
employee; that effective January 1, 2000 to December 31, 2000, the contribution was to be at a
rate to be determined by an actuary up to a $2000 maximum per full time employee; and that
effective January 1, 2001 to February 28, 2001, the contribution was to be at a rate to be
determined by an actuary up to a $2600 maximum per full time employee.

Thus, under the terms of the expired contract, after the first 9 months of the agreement
and until December 31, a specific contribution amount was described. Thereafter, and for the
remaining term of that agreement, changes in the amounts were to go into effect on the first day
of each year, (January 1), and the amounts were flexible in that they were to be determined by an
actuary with a maximum agreed upon by the parties.

On or about September 10, 2002, the Union forwarded to the Respondent, a proposed
draft of a full contract. On October 18, 2002, the Union sent a follow up letter because the
proposed draft previously sent, had not been signed and returned. Another such letter was sent by
the Union on November 7, 2002.

On November 12, 2002, the Respondent by its attorneys sent a letter to the Union, which
acknowledged receipt of the union’s letters and offered the following modifications.

Page 14. Recall. 5.06: Delete the words “bargaining unit.”

Page 24. Pension Plan: Par.1. Correct “December 31, 2002” to read
“February 28, 2003; Par. 2. Correct “December 31, 2003” to read “March 1,
2003: Par. 3. Correct “January 1, 2004” to read “March 1, 2003”; Correct
“December 31, 2004” to read “February 28, 2004”.

Once these corrections are made, please send corrected pages only for further
review and approval. Client will check “Minimum Hiring Rate” for accuracy.

On November 18, 2002, the Union responded by stating in pertinent part;

The language in Section 5.06 needs to remain the way it is written. At no
point in negotiations did we ever agree to delete the words “bargaining unit” from
these paragraphs.

The language in Section 9.03 needs to remain the way it is written also.
The pension contributions are determined on a calendar year basis, from January
1st through December 31st of each year.

On April, 5, 2002, Michael E. Behan, chief operating officer of the Pension Plan and
Benefit Fund wrote to the Respondent, gave his opinion about the intent of the agreement and
asked that the proposed contract be signed and returned. He stated, inter alia;

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The Fund Office has reviewed a copy of the Memorandum of Agreement … that was
executed on March 21 and March 22, 2002.

In reviewing the MOA, there is not a clear definition of the effective dates and
duration of the contract. The Fund Office’s interpretation is as follows:

Section 9.03 – NYSNA Pension Plan
Effective 03/01/02 - 12/31/02: $ 0
Effective 01/01/03 – 12/31/03: $4968
Effective 01/01/04 – 12/31/04: $5613
Effective 01/01/05 - 02/28/05: To be determined by the Trustees

Notwithstanding the repeated attempts to have the proposed agreement signed and
returned, the Respondent has refused to do so because of its belief that the proffered document
does not accurately reflect the agreement that was reached on March 22. However, it appears
that in all respects, except for the pension plan payments, the Respondent has complied with all
of the other terms of the Memorandum of Agreement, including all other incorporated terms and
conditions of employment.

With respect to the recall provision, the Respondent’s counsel concedes that the inclusion
of the words, “bargaining unit” to replace the words “clinical division” do not detract from the
intent of the parties as embodied by the Memorandum of Understanding. That is, by eliminating
seniority within each “clinical division,” the parties obviously intended to make seniority
applicable within the “bargaining unit.” (Clearly seniority was not to be based on employment
outside the bargaining unit). To this extent then, the inclusion of the words “bargaining unit,”
merely states the obvious and as counsel acknowledges, is consistent with the intent of the
agreement. This objection therefore has no merit.

With respect to the pension fund contributions, the Respondent contends that the parties
agreed that the Employer would have a zero contribution for the first full year of the agreement,
(from March 1, 2002 to February 28, 2003); a $4968 contribution for the second full year and a
$5613 contribution for the third full year. Respondent also asserts that it never agreed that for a
two-month period, from January 1, 2005 to February 28, 2005, the rate was to be determined by
the Trustees

But the Respondent’s reading of the Memorandum is not, in my opinion, consistent with
the words contained in that document. While it is correct that the Memorandum states that in
year 1, the rate would be $0, that in year two it would be $4968 and that in year 3 it would be
$5613, the document does not define the beginning or ending dates of any given year.
Accordingly, in light of the past practice and the terms of the prior contract, which to the extent
not specifically modified, were incorporated by reference into the new agreement, it is more than
reasonable to conclude that the meaning of words in the Memorandum of Understanding is that
from March 1, 2002 and for the remainder of the first year, the rate would be $0 and then, as in
the past, the negotiated rates would go into effect as of the first of each year. Moreover, while it
is true that the negotiated rates would not cover the last two months of the contract, the
Memorandum of Agreement covers that contingency by stating that rates are to be determined by
the Trustees.

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In this case, both the Union and the Employer agree that they reached a new contract.
What they disagree about is the interpretation of that contract, essentially insofar as it effects
only the pension fund contributions. It is my opinion, that the Union’s interpretation of the
agreement is correct and that the integrated contract tendered to the Employer on September 10,
2002, accurately reflects that agreement. I therefore conclude that the Employer’s refusal to
execute and return the proffered contract, constituted a violation of Section 8(a)(1) & (5) of the
Act. 2

Remedy

Having found that the Respondent, Hempstead Park Nursing Home has violated the Act,
I shall recommend that it cease and desist and take certain affirmative action designed to
effectuate the policies of the Act.

As I have concluded that the Respondent has failed and refused to execute the contract
proffered to it on September 10, 2002, I shall recommend that it sign and return this contract to
the Union immediately.

To the extent that the Respondent has not made payments to the Pension Fund in
accordance with the terms of the 2002 to 2005 collective bargaining agreement, I shall
recommend that it make such payments, with interest, to be computed according to the practice
set forth in Merryweather Optical Co., 240 NLRB 12l3, 12l6 fn. 7 (l979).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 3

ORDER

The Respondent, Hempstead Park Nursing Home, its officers, agents, successor, and
assigns, shall cease and desist from

(a) Refusing to execute the collective bargaining agreement tendered to it by the Union
on September 10, 2002.

2 At the hearing, and apparently for the first time, the Respondent’s counsel suggested that the matter would
better be resolved by having it decided by arbitration. The Respondent did not indicate in its Answer that it sought
to have this matter deferred to arbitration and it did not offer, at any time, to waive the time limitation provisions
contained in the grievance/arbitration provisions of the contract. Therefore, I will not defer this case.
The cases cited by the Respondent are not, in my opinion, apposite. Those cases, (Westinghouse Electric
Corporation, 313 NLRB 452 (1993); Atwood & Morill Co., Inc., 289 NLRB 794, 795 (1988); Thermo Electron
Corporation, 287 NLRB 820 (1987); NCR Corp., 271 NLRB 1212, 1213 (1984); and Vickers, Incorporated, 153
NLRB 561 (1965) all involved cases where it was alleged that companies made unilateral changes in the terms of
existing contracts and where there were genuine issues regarding the interpretation of those contracts. None
involved situations where it was alleged that a company or union had refused to execute an agreed upon contract.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.

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(b) In any like or related manner, interfering with the rights guaranteed to employees by
Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Upon request, execute the collective bargaining agreement that was tendered on
September 10, 2002.

(b) Pay to the Pension fund, with interest, any contributions that it has withheld.

(c) Within 14 days after service by the Region, post at its facility in, Queens, New York,
copies of the attached notice marked “Appendix.” 4 Copies of the notice, on forms provided by
the Regional Director for Region 29, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In 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 current employees and former employees employed by the Respondent at any time
since September 10, 2002.

(d) Within 21 days after service by the Region, file with the Regional Director a sworn
certification 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.

_____________________
Raymond P. Green
Administrative Law Judge

4 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading
“POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read “POSTED PURSUANT
TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD.”

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APPENDIX
NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated 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 benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT refuse to execute the collective bargaining agreement that had been agreed to and proffered to us
on September 10, 2002.

WE WILL NOT, in any like or related manner interfere with the rights guaranteed to employees by Section 7 of the
Act.

WE WILL upon request, execute the collective bargaining agreement that was tendered to us on September 10,
2002.

WE WILL make payments to the New York State Nurses Association Pension Fund of any amounts that we have
withheld and that are due and owing under the terms of the aforesaid collective bargaining agreement.

Hempstead Park Nursing Home.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
One MetroTech Center (North), Jay Street and Myrtle Avenue, 10th Floor, Brooklyn, NY 11201-4201
(718) 330-7713, Hours: 9 a.m. to 5:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING
AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY
QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (718) 330-2862.