National Labor Relations Board Administrative Law Judge Kenneth W. Chu has ruled that StaffCo of Brooklyn violated the National Labor Relations Act when it refused to maintain the status quo with respect to the terms and conditions of employment by failing to contribute to the New York State Nurses Association (NYSNA) Pension Plan after the expiration of a collective bargaining agreement (CBA).
Wu cited a previous Board decision in finding that it is clear the pension plan benefits “. . . are a term and condition that survive the expiration of the collective-bargaining agreement and are a mandatory subject of bargaining that an employer cannot alter without providing the union an opportunity to bargain.”
The CBA expired in 2012, and StaffCo and the union agreed to several extensions, the latest of which expired May 22, 2014. StaffCo argued it was not obligated or permitted to contribute to the plan after the expiration of the agreement without another extension or an interim agreement. The company further contended that NYSNA waived its right to bargain over this subject matter because it had received notice of the pending termination of the pension contributions by the pension fund prior to expiration of the CBA and the union did nothing to begin bargaining over the terms of a new agreement or seek an interim agreement.
Wu found there was no expressed or implied waiver in the CBA, in any of the extensions and interim agreements, or in the pension plan policy for continuation of coverage upon expiration of a collective-bargaining agreement. He said the understanding that the parties must have a current CBA for the continuation of coverage of the pension plan is 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,” Wu wrote in his opinion.
According to the opinion, the Board has recognized implied waivers, but Wu said he found no reference to an implied or expressed waiver of the union’s statutory right to continue with the status quo after the contract expiration. With regard to StaffCo’s allegation that the union failed to timely request to bargain, Wu found credible the testimony that the union was seeking an extension to the contract since May 20, 2014, and repeatedly requested that StaffCo continue with its pension contributions.
Wu order that StaffCo make whole its bargaining unit employees for any losses they suffered or expenses they incurred, including benefits to their pension plan, which resulted from its unlawful termination of its contribution to the pension plan on May 22, 2014.