CHAPIN HILL AT RED BANK

National Labor Relations Board - Administrative Judge Opinions

May 15, 2014

22-CA-067608 (N.L.R.B. May. 15, 2014)

JD(NY)–23–14
Red Bank, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
CHAPIN HILL AT RED BANK
and Case No. 22-CA-067608
LOCAL 707, HEALTH EMPLOYEES
ALLIANCE RIGHTS & TRADES (H.E.A.R.T)
Joshua Mendelsohn, Esq.,
for the General Counsel
Morris Tuchman, Esq.,
for the Respondent
Supplemental Decision on Remand
I. Procedural History
On September 7, 2012,1 I issued a recommended Decision and Order in the above-
referenced matter finding that Chapin Hill at Red Bank (Employer or Respondent) violated
Section 8(a)(5) and (1) of the act by failing and refusing to meet and bargain with Local 707,
Health Employees Alliance Rights and Trades (H.E.A.R.T) (Charging Party or the Union) to
replace the contractual pension plan which was no longer available to bargaining unit
employees, as was alleged in the complaint.2
On September 28, the National Labor Relations Board issued a decision in the matter of
Cofire Paving Corp., 359 NLRB No. 10 (2012), addressing an employer’s notice and bargaining
obligations when faced with the discontinuation of existing benefits owing to circumstances
beyond the employer’s control.

1 Until or otherwise indicated, all dates are in 2012.
2 The charge filed on October 25, 2011, upon which the initial complaint was based alleges as
follows: “Employer has failed and refused to bargain, negotiate or discuss replacement fund(s) for the
pension fund, which is necessary because Local 707 members cannot participate in the Local 74 Pension
Fund, as originally negotiated. Employer is not making contributions to any fund, as required under the
contract, while completely ignoring the union’s requests to bargain, negotiate or discuss a replacement for
said pension fund. This is causing serious disaffection among members.” The initial complaint alleged
that the Respondent violated the Act by failing and refusing to bargain with the Union about a new
pension plan to replace the contractual plan which was no longer available to bargaining unit employees.
No other allegations of unlawful conduct were alleged.
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Thereafter, on June 3, 2013, the Board issued a Decision and Order Remanding [the
instant case] to the undersigned. There, the Board directed me to “[consider] … the relevance of
Cofire Paving to the remaining issues.”3
The Board authorized me to allow the parties to file briefs on the remanded issues and, if
warranted, reopen the record to obtain evidence relevant to deciding those issues.
Consistent with the Board’s instructions, on June 6, 2013,4 I issued an order affording
the parties the opportunity to file statements of position and supporting briefs outlining the
issues raised by the Board’s remand. I further directed that any party seeking to reopen the
record to adduce further evidence relevant to the Board’s order submit an appropriate motion,
together with an offer of proof as to what evidence would be adduced, in any reopened hearing
and why such evidence would shed light on any issue raised by that party.
On July 25, Counsel for the Acting General Counsel (hereafter referred to as the
General Counsel) submitted a motion requesting that I: (1) expand the remedy as set forth in my
decision to require that Respondent not only bargain with the Union over the identity of the
pension fund, but to further order that Respondent calculate and set aside contractual
contribution levels for its employees’ pension as contemplated by their collective bargaining
agreement; and (2) reopen the record in this matter to allow for an amendment to the complaint
regarding Respondent’s alleged failure to calculate and maintain adequate levels of funds to
satisfy their pension contribution obligation. The General Counsel further took the position that,
based upon factual findings as set forth in my original decision, reopening the record to adduce
further testimony or other evidence was not necessary.
Neither the Union nor the Respondent filed any statement of position in response to my
June 6 order. On August 8, I granted the General Counsel’s motion and, on August 23, a First
Amended Complaint (amended complaint) was filed, providing that Respondent had until the
close of business on September 5 to file an answer to the amended complaint.
The amended complaint contains several allegations which were not encompassed by
the original complaint in this matter. In sum, the amended complaint alleges that (1) under the
terms of the parties’ most recent collective-bargaining agreement, Respondent was required to
make pension contributions beginning in September 2010; (2) that since September 2010,
Respondent has failed to calculate and set aside pension contributions owed to employees; (3)
that since September 2010, Respondent has failed to maintain adequate levels of funds to
satisfy its pension contributions as set forth in the collective-bargaining agreement; (4) that
Respondent has failed and refused to bargain collectively over the disposition of the
contractually-required pension fund contributions; (5) that the foregoing subjects are mandatory
subjects for the purpose of collective bargaining and (6) by its refusal to bargain over the
foregoing matters, Respondent refused to bargain within the meaning of Section 8(d) and in
violation of Section 8(a)(5) and (1) of the Act.

3 The Board agreed, for the reasons stated in the decision, that the allegation involved in the matter
before me was not appropriate for deferral under Collyer Insulated Wire, 192 NLRB 837 (1971), and its
progeny. 359 NLRB N0. 125, slip op. at 1, fn. 2. The Respondent had also raised a Section 10(b)
defense, which I rejected. The Board did not explicitly address this issue. I affirm my findings of fact and
conclusions of law with respect to any 10(b) issue raised by Respondent as to the initial complaint; my
findings regarding any related contention regarding the amended complaint are discussed below.
4 Going forward, all dates are in 2013, unless otherwise indicated.
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The General Counsel now seeks a decision finding that Respondent has violated the Act
as alleged in the amended complaint and maintains that, in any event, it is appropriate for me to
issue an order requiring Respondent to calculate the pension contributions owed to unit
employees from September 1, 2010 to date, bargain with the Union over the disposition of the
contributions and make unit employees whole for any losses suffered consistent with the
Board’s decision in Cofire Paving, supra, based upon findings of fact made in the underlying
hearing.
On August 28, Respondent filed an answer to the amended complaint denying the
substantive allegations contained therein and raising certain affirmative defenses: i.e. that the
allegations are barred by the Board’s statute of limitations; that retroactive application of new
law after litigation at trial results in manifest injustice and that the Board’s decision in Cofire
requires only bargaining and does not provide for a make whole relief that is not agreed to by
the parties.
I then issued an order, dated September 4. There, I noted that in my order dated August
8, I again urged the parties to consider whether it would be necessary or appropriate to reopen
the record for the purpose of adducing additional testimonial or other evidence to address the
issues raised by the Board’s remand. As there had been no further response I announced my
intention to allow the parties an opportunity to file additional statements in support of their
respective positions, or in response to the positions taken by the other parties with regard to the
amended pleadings and the issued raised by the remand in this matter. I further advised the
parties that after September 20, my intention was to close the record and issue a supplemental
decision in accordance with the direction of the Board.
On September 8, Respondent submitted a letter which, among other things, requested a
reopened record to adduce evidence to rebut certain allegations contained in the General
Counsel’s amended complaint,5 and to contest the General Counsel’s assertion that the remedy
ordered by the Board in Cofire would be appropriate in this matter.6
Accordingly, I issued an order reopening the record in this matter and a supplemental
hearing was held before me in New York, New York on November 25.7
II. The Supplemental Hearing
A. Positions of the Parties

5 Respondent contests my characterization of the .General Counsel’s motion to amend the complaint
as “unopposed.” In particular, Respondent argues that my initial order failed to provide any “provision or
permit to respond to the possible motions that would be filed. Rather all parties were asked to respond on
the same day concerning their response to the remand. Respondent saw no need to respond on its own”
(letter dated September 8).
6 Respondent, citing Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), cert. granted 81 U.S.L.W.
3695 (U.S. June 24, 2013 (No. 12-1281) and other circuit court law has also argued that I should dismiss
the complaint, as the Board lacked a lawful quorum when it issued the instant decision. Construing
Respondent’s argument as tantamount to a motion to either dismiss or stay these proceedings, it is
denied. Belgrove Post Acute Care Center, 359 NLRB No. 77, slip op. at 1, fn. 1 (2013). Respondent’s
argument that retroactive application of any remedy imposed by the Board in Cofire would result in
“manifest injustice,” has been considered in this supplemental decision.
7 The hearing, originally scheduled for October 17 was rescheduled due to the shutdown in
government operations.
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The General Counsel argues that Cofire establishes that it is a separate unfair labor
practice for an employer to fail to calculate and set aside old contractual contributions, even if
the fund to which it is to contribute is no longer viable, until it has fulfilled its bargaining
obligation regarding the identity of the fund and even if it unable to remit contributions due to
circumstances beyond its control. The General Counsel further maintains that Cofire requires
Respondent to maintain its contributions until it fulfilled its bargaining obligation over the identity
of the fund to which such contributions should be made. The General Counsel argues that the
evidence adduced in the underlying record is sufficient to establish the alleged violations of the
Act as set forth in the amended complaint and to support an expanded remedy here. The
General Counsel argues that its motion to reopen the record to add the above noted additional
allegations relating to the Employer’s failure to set aside and calculate pension contributions is
warranted under the Board’s Rules and Regulations and decisional Board law.
The General Counsel further argues generally that, inasmuch as the Respondent
engaged in the same conduct as that found unlawful in Cofire, the same remedy should obtain.
In particular, it is argued that the record in the instant case establishes that Respondent agreed
to make pension contributions on behalf of its employees, failed to make such contributions due
to circumstances beyond its control and failed to set aside and calculate the amounts owed to
employees. It is further noted that, as found in the underlying decision in this matter,
Respondent failed to provide the Union with an opportunity to bargain over alternative means of
effectuating its contractual obligations. Accordingly, the General Counsel argues that
Respondent cannot, under Cofire, be allowed to “simply retain the contributions for its own
benefit, thereby enriching itself at the expense of its employees.”
The Respondent denies the substantive allegations of the first amended complaint, and
argues that the new allegations are precluded by Section 10(b) of the Act. Respondent further
argues that the issue presented to me in the underlying case was exceedingly narrow: i.e.,
whether the Employer was obliged to bargain over a specific replacement fund. Respondent
maintains that the Cofire decision introduces entirely new issues; in particular, what to do with
the monies that are “now in play.” Respondent further argues that I reconsider my
determinations about deferral and whether the allegations of the complaint are barred by
Section 10(b) of the Act. Respondent additionally maintains that any remedy the Board would
order runs afoul of H.K. Porter v. NLRB, 397 U.S. 99 (1970), because the Board would be
assuming jurisdiction over the subjects of bargaining between the parties. Relying upon WKYC-
TV, Inc., 359 NLRB No. 30 (2012), Respondent further contends that retroactive application of
new law after litigation at trial results in manifest injustice. Respondent additionally argues that
Cofire requires bargaining only, and does not provide for make whole relief that is not agreed to
by the parties.
Respondent additionally argues that it did not unjustly enrich itself by withholding
pension contributions because the parties bargained and subsequently reached agreement to
use the contractually mandated pension contributions to offset certain increases in health
insurance costs. The General Counsel and the Union take the position that no such agreement
was reached.
B. Evidence Adduced at the Reopened Hearing
At the hearing on remand in this matter I received testimony from Respondent’s
Executive Director Joseph Schlanger (Schlanger) and rebuttal testimony from Union President
Odette Machado-Ramadeen (Machado). In addition, certain documents were placed into
evidence, the relevant portions of which are summarized or set forth below.
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The collective bargaining agreement (Agreement) which was the subject of the
underlying case appears to have had a term of 2008 through 2013. At the instant hearing
Machado was uncertain about the precise dates. Based upon the evidence adduced in the
underlying case however, I concluded the Agreement, which had largely incorporated a
collective-bargaining agreement with a predecessor labor organization (the 1199 Agreement)
was effective until June 15, 2009 and thereafter would automatically renew for an additional
period of 4 years unless a party provided written notice to the other of its desire to terminate the
agreement or modify its terms. See 359 NLRB slip op. at 2.
As was noted in the underlying decision in this matter, at the time the Agreement was
entered into, it was expected that the Union would be affiliating with Local 74, U.S.W.U,
I.U.J.A.T. (Local 74), another labor organization. Schlanger testified that he learned that this
proposed affiliation would not take place in about June 2010 and health insurance coverage for
employees ceased at some point shortly thereafter.
Schlanger testified on several occasions that the parties held “countless” conversations
as to how to provide health insurance for employees.
On March 14 and March 30, 2011, the parties held a hearing before contract arbitrator
Elliott D. Shriftman regarding the Employer’s alleged failure to provide health insurance
coverage to eligible employees. On the second day of hearing, the parties reached a settlement
of this matter and entered into a consent award issued by the arbitrator on April 11, 2011. The
settlement, by its terms, addressed only the Employer’s obligation to pay health insurance
benefits to employees, and did not address any pension fund obligation. Under the new health
insurance plan put into place by the Employer, costs increased significantly, and continue to
increase each year.
Schlanger testified that, in exchange for health insurance benefits fully funded by the
Employer, the Union agreed that the pension contributions due under the collective-bargaining
agreement would be used to offset the increased costs to Respondent. He further testified that
this agreement was reached in about March of 2012; however, he subsequently stated that the
agreement was reached in March 2011 but not implemented until September 2011, because of
the terms of the consent award.
Machado denied that any such agreement had been reached and testified, “I’m hearing
now that they’re saying they used the monies and that’s shocking to us.” 8 Schlanger
acknowledged that there was no written memorialization of any purported agreement. Nor was
there any testimony relating to such an agreement at the underlying hearing, which took place in
March 2012.
On April 27, 2011, Union counsel Thomas Rubertone, Jr. wrote to the contract arbitrator,
Elliott D. Shriftman, requesting a hearing on the following issues:
The Employer violated and continues to violate the CBA by failing to pay contributions to
union for training, pension and legal funds.

8 It appears that the Union acknowledges agreeing to using certain other funds, in particular legal and
training fund contributions, for offsetting the increase in health insurance costs. However, the amount of
contributions to such funds is minimal.
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As a remedy, the Union is requesting that the Employer make the effected (sic)
employees and union whole, including but not limited to retroactive payments of the
amounts set forth in the CBA.
The parties met on February 13, 2012 to commence negotiations for a successor
collective bargaining agreement. The subject of increased costs of health insurance was one of
many issues discussed.
After the meeting, the Union summarized what had occurred in a letter to Respondent as
follows:
The Employer and Union met on February 13, 2012 to finally begin long overdue
contract negotiations. During that session the Union made its proposals and the
Employer advised us, for the first time, of an imminent increase in health insurance
premiums. As a result of this exigency, we spent three hours negotiating all open
contract issues. We tentatively agreed on the points outlined below:
- A 3 year Contract Reopener 90 to 120 days prior to Expiration of the Contract
- Provisions not modified will remain as in previous Contract
- 1% bonus to be paid May 2012
- 1.5% wage increase to be effective as of March 1, 2012
- 2% wage increase effective March 2013
- 2% wage increase effective March 2014
- New health insurance plan to be paid by Employer (new plan at lower premiums) with
$750 card for higher deductible/copays to each eligible member
- 401K to be funded annually beginning December 13 at 2% gross payroll
- Dental plan to be offered for a corresponding payroll reduction.
In light of your cancellation of the second session of negotiations scheduled for February
23, 2012 and threats to impose payroll deductions for health insurance premiums, it is
imperative that your client ratify or otherwise respond to the above provisions negotiated
on February 13, 2012. The fact that Health Insurance costs have increased during this
Employer cannot be transferred to employees in the form of threatened payroll
deductions. It would appear that both Union and Employer have a need to reach
agreement as soon as possible. Changes in Health Insurance as well as any payroll
deductions remain a mandatory subject of bargaining despite an arbitration award that
merely fixes the Employer’s cost under the current contract.
Be further advised that THERE HAS NEVER BEEN ANY CONSENT or authorization
from the Union to use funds your client holds in trust for employees in “pension”
contributions for any other purpose. As you are well aware the Union only agreed at
arbitration to divert training and legal fund contributions. To offset the difference in health
insurance premiums. Since then you have delayed bargaining. The Employees will not
bear the prejudice of this delay. The best and only good faith solution for all is to reach
agreement on the new contract.
Schlanger testified that the bullet points were new items the parties wished to add; and
that other terms were maintained. He further testified that he considered the above statement
regarding the Union’s lack of consent to use pension contributions for offset health insurance
premiums to be a “disclaimer,” because the Union might want to raise the issue at another time.
He stated that Respondent would not “swallow” the increase in health insurance costs without
having such an agreement with the Union.
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Shortly after the Union’s letter, referenced above, Respondent’s attorney Ari Weiss, sent
an e-mail communication dated February 17, 2012. In relevant part, the communication states:
“Health Insurance – We haven’t heard back from you regarding the Employer’s proposal
to switch to a new plan. If the current plan is renewed for another plan (March 1) year
then the rates will be increased or both single and family plans and the employees will
be responsible for any rate increase.”
In fact, sometime during the month of March 2012, the Employer circulated to
employees a letter stating that going forward employees who wished to maintain health
insurance coverage would be obliged to contribute to the costs of the plan.
On cross-examination, Schlanger was asked about Weiss’s email and the fact that, by
its terms, it contains no reference to any agreement to offset increased costs with pension fund
contributions. His response was as follows:
So it – which means that we were okay with the increased rates up until the renewal. So
that means we were paying for it already one year. . . So, yeah, it does address the fact
that we agreed, we had an agreement up until the renewal…Now, it seems my attorney
is saying, “Well now, if we don’t switch plans March 1st, as most of the time there is with
the renewal period, there’s going to be an increase”…Up until then we had an
agreement that we were going to pay for it but up until the renewal date.
Machado testified that at some point the parties met with the Arbitrator, who stated that
he would attempt to mediate the issue of the pension contributions. According to Machado,
while the Union agreed to an offset from monies owed to the training and legal funds, the Union
did not agree to use the pension fund obligation for that purpose. The evidence as to when this
meeting took place is inconclusive. It appears from the record, however, that in August 2012 the
parties and the mediator met with the Employer at attorney Weiss’s office. The Union was
advised that that the Employer was, in fact, using the owed pension fund contributions to offset
health insurance costs and expressed its disagreement. The arbitrator did not issue an award
regarding the Union’s grievance over the Employer’s failure to pay into a pension fund. As
Machado testified: “There was no arbitration so that he wouldn’t have – he wouldn’t have issued
an award.”
On Monday, July 1, 2013, Machado wrote to Respondent’s owner, Zev Farkas, and
demanded that Chapin Hill comply with the Board’s order in the underlying matter and “meet
with the Union to bargain over a fund for pension payments due under the contract.” The record
does not contain any evidence of a response.
III. Analysis and Conclusions
A. The Cofire Decision
As the Board explained, Cofire concerns an employer’s obligation to maintain terms and
conditions of employment when one labor organization replaces another as the collective
bargaining representative for a unit of employees. In that case, in August 2005, Local 175,
United Plant & Production Workers Union (Local 175) was certified by the Board as the
exclusive collective-bargaining representative of the respondent’s production employees at its
Flushing, New York asphalt plant. Prior to this time, the employees had been represented by
another labor organization, Local 1175, Laborers International Union of North America, AFL-CIO
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(Local 1175). The Board found that the respondent committed several unfair labor practices
after the change in bargaining representative: in particular, by unilaterally altering certain terms
and conditions of employment. While the Local 1175 collective-bargaining agreement was no
longer in effect, the terms and conditions established under that agreement continued in effect
by operation of law pending the negotiation and completion of a new collective bargaining
agreement. Cofire, supra, slip op. at 5 (citing and quoting Litton Financial Printing Division v.
NLRB, 501 U.S. 190, 198-199; 206-207(1991)). As the Board explained, an employer’s
obligation to maintain the status quo includes the maintenance of fringe benefits such as
welfare, pension and annuity benefits.
As the Board noted, while it had not specifically addressed whether or how an employer
confronted with an intervening certification is required to maintain the status quo with respect to
benefits sponsored by the prior union, the Board relied upon precedent involving similar policy
considerations. Of particular relevance here, is the Board’s conclusion that the respondent was
required to timely notify Local 175 of the discontinuation of the benefits and to bargain over
securing alternative benefits. The Board additionally concluded, relying upon NLRB v. Katz,
369 U.S. 736 (1962), that the respondent was required to maintain existing contribution levels
until it fulfilled its bargaining obligation. Assuming that Local 1175’s funds would no longer
accept contributions, the respondent was required to continue calculating the pension and
annuity contributions according to the established formulas and to set the contributions aside for
the benefit of the employees until the parties reached a new agreement on the subject or
bargained to impasse. In particular, the Board found:
When an employer is faced with the discontinuation of existing benefits owing to
circumstances beyond the employer’s control, it is not permitted unilaterally, to replace
the benefits or to remit benefit fund contributions directly to the unit employees because
doing so would be inconsistent with the statutory duty to bargain. Nor is the employer
permitted to do nothing and simply allow employees to be stripped of the benefits.
Rather, the employer must provide the union with notice and an opportunity to bargain
over the development.
359 NLRB No. 10, slip op. at 6.
The Board found that the respondent cannot be allowed to “simply retain the
contributions for its own benefit, thereby enriching itself at the expense of its employees.” Id.
As a result, the Board ordered Cofire to calculate the pension and annuity contributions, bargain
with Local 175 over the disposition of the contributions and make unit employees whole for any
losses they may have suffered as a result of the respondent’s unlawful cessation of
contributions. Id. at 8.
In dissent, Board Member Hayes argues that the violation found “reached beyond the
issues raised and litigated by the parties.” 359 NLRB, slip op at 9. The Board panel majority
disagreed, finding that the complaint gave fair notice of the acts alleged to constitute unfair labor
practices and that the General Counsel was not required to allege in the complaint the legal
theory relied upon. See Cofire, slip op. at 6, fn. 20.9
B. Application to the Instant Matter

9 In Cofire, as the administrative law judge noted, the relevant portion of the complaint alleged that
“since October 4, 2005, the Respondent has unilaterally changed the terms and conditions of
employment by failing to secure pension [and annuity] benefits for the Unit.” 359 NLRB, slip op. at 9.
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Section 102.15 of the Board’s Rules and Regulations sets forth the pleading
requirements for complaints before the Board. It requires that the complaint contain “a clear and
concise description of the acts which are claimed to constitute unfair labor practices.” As the
Sixth Circuit has stated, “[a]ll that is required in a valid complaint before the Board is that there
be a plain statement of the things claimed to constitute an unfair labor practice that respondent
may be put upon his defense.” NLRB v. Piqua Munising Wood Products Co., 109 F.2d 552, 557
(6th Cir. 1940), quoted in Artesia Ready Mix Concrete, Inc., 39 NLRB1224, 1226 (2003).
Here, I find that the complaint as initially prosecuted by the General Counsel fails to
meet the remedy now sought. In Cofire, the Board noted that the General Counsel is not
required to describe in the complaint the legal theory relied on. 359 NLRB slip op. At 6 (citing
Davis Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1169 (D.C. Cir. 1993), cert. denied 511
U.S.1003 (1994) (enforcing Board decision finding an unfair labor practice under a different
legal theory than the one articulated in the complaint). Similarly, in Massey Energy/Mammoth
Coal, 358 NLRB No. 159, slip op. at 10 (2012) the Board noted that it, with court approval, “has
repeatedly found violations for different reasons and on different theories from those of
administrative law judges or the General Counsel . . . where the unlawful conduct was alleged in
the complaint” (emphasis in original). Here, however, the General Counsel failed to include the
acts now relied upon: i.e. Respondent’s alleged failure to make pension fund contributions, in
the initial complaint.
Relying upon Pergament United Sales, 296 NLRB 333, 334 (1989), The General
Counsel argues in its brief that, notwithstanding any conclusions I might reach regarding the
allegations encompassed by the amended complaint, I may find and a remedy the violations
alleged, “even in the absence of a specified allegation in the complaint if the issue is closely
connected to the subject matter of the complaint and has been fully litigated.” However, the
Board has found limits to this doctrine. In particular, the Board has found that while Pergament
applies to unpled unfair labor practices, it does not extend to unpled allegations of fact. GPS
Terminal Services, 333 NLRB 968, 969 fn. 9 (2001).
As the Board has explained:
The recognized principle that the determination of whether a matter has been fully
litigated rests in part on whether the absence of a specific allegation precluded a
respondent from presenting exculpatory evidence or whether the respondent would have
altered the conduct of its case at the hearing, had a specific allegation been made.
Pergament, 296 NLRB at 335.
I do not agree with the General Counsel that the issue of whether pension contributions
were owed had been fully litigated at the underlying hearing; rather, it was an ancillary matter
which was not encompassed by the limited scope of that litigation – which concerned itself
exclusively on Respondent’s failure to bargain over the identity of a fund which would receive
such contributions. Moreover, I additionally find that the issue cannot fairly be deemed closely
connected to the allegations set forth the initial complaint. In Pergament, the complaint alleged a
Section 8(a)(3) refusal to hire violation. Although that allegation was dismissed, the Board found
an 8(a)(4) violation based upon an employer official’s testimony that he refused to hire certain
employees because a charge had been filed. The Board concluded that the Section 8(a)(4)
issue was closely connected to the subject matter of the complaint because both allegations
focused on the same set of facts and the underlying lawfulness of the employer’s motivation for
failing to hire the employees in question.
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Here, as noted above, unlike the complaint in Cofire, there is no allegation in the original
complaint that Respondent failed to set aside or make pension and welfare contributions,
notwithstanding the fact that such allegations were clearly encompassed in the charge as filed
by the Union.10 Thus, the General Counsel is now not only urging a new theory of a violation but
relying upon facts that were not directly at issue or necessary to resolve the underlying case.
Thus, it cannot be said in this instance that Respondent had unequivocal notice of the conduct
on its part that was alleged to be unlawful and an opportunity to be heard on such matters.
While I am sympathetic to the General Counsel’s attempt to compel Respondent to
adhere to its contractual obligation to contribute toward pension benefits for its employees, I am
constrained to conclude that General Counsel’s proposed amendments to the complaint are
tantamount to a belated attempt to have a “second bite at the apple” and are inconsistent with
the requirements of due process. In this regard, I note that restitution of delinquent benefit fund
contributions is a standard remedy. Certainly, the General Counsel could have sought such a
remedy even while the identity of the fund was being negotiated. In fact, the case authority
relied upon by the Board majority in Cofire, which does not bear further analysis here, shows
this to be the case.
Accordingly, while I continue to rely upon and affirm the findings of fact and conclusions
of law set forth in my original recommended Decision and Order in this matter, I have
determined that it is appropriate to dismiss the allegations of the amended complaint insofar as
they purport to expand upon those encompassed by the complaint as originally litigated in this
matter or to impose any further remedy as urged by the General Counsel.11
C. Respondent’s affirmative defenses
Cognizant of the fact that my conclusions with regard to the due process issue
discussed above may be placed before the Board for review, I will briefly discuss Respondent’s
posited affirmative defenses.
1. Section 10(b)
As noted above, the underlying charge filed in October 2011, includes an allegation that
the Respondent has failed to remit pension contributions. Respondent relies upon the fact that
this charge was filed more than six months after the Respondent’s obligation to make such
contributions came due and argues that the proposed amendments area time barred under
Section 10(b) of the Act. Such allegations are without merit.

10 The General Counsel’s failure to include such allegations in the original complaint is unexplained.
11 Respondent’s reliance upon H.K Porter and WKYC-TV is misplaced. In H.K Porter, supra, the
Board entered a remedial order “requiring the Company to check off the [union] dues of the workers.” The
Court held that while the Board does have the power to require employers and employees to negotiate, “it
is without power to compel a company or union to agree to any substantive contractual provision of the
collective bargaining agreement…” Unlike that case, however, here the parties have already bargained
and agreed upon certain contract terms. Moreover, the initial order in this matter required only bargaining,
but did not compel any agreement. With respect to WKYC-TV, that case involved the Board’s refusal to
apply retroactively a change in over 50 years of decisional law. This can hardly be deemed analogous to
the situation presented here, where the Respondent’s bargaining obligation is the subject of well-
established Board law which has been extant for decades; as would it’s remedial obligation pursuant to
the Act had its breach of the Agreement been timely pled and proven.
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The Board distinguishes between a “simple failure to abide by the terms of a collective-
bargaining agreement,” or “material breach violation” on the one hand, and an “outright
repudiation of the agreement itself,” or “total repudiation” on the other hand. Vallow Floor,
Coverings, Inc, 335 NLRB 20 (2001), citing A & L Underground Inc., 302 NLRB 467 at 469
(1991). Here, there is no contention or evidence that that the Union had clear and unequivocal
notice that the Respondent repudiated the Agreement in its entirety, and the record evidence
reflects otherwise. When an employer has not rejected a collective-bargaining agreement in its
entirety, but has instead refused to apply one or more of its provisions to unit employees, this
scenario presents a breach of the contract’s terms. Under such circumstances, each successive
breach of the contract constitutes a separate and distinct unfair labor practice. It is for this
reason that even when a union has clear and unequivocal notice outside the 10(b) period that a
respondent is failing to observe the terms of the contract, the complaint would not be time-
barred. Instead the 10(b) period would serve only as a limitation on the remedy to the 6 months
prior to the filing of the unfair labor practice charge. Vallow Floor, supra; see also Farmingdale
Iron Works, 249 NLRB 98, 99 (1989), enfd. 661 F.2d 910 (2d Cir. 1981).
2. Deferral
Respondent argues that any alleged failure to pay pension contributions should be
deferred to the parties’ grievance and arbitration procedure. Had this been the sole alleged
violation of the Act, such a contention might well have merit. However, this is not the case.
The Board has consistently held that where certain complaint allegations are not
deferrable, it will not defer to the parties' grievance and arbitration process other allegations that
are closely interrelated. Flatbush Manor Care Center, 315 NLRB 15, (1994), American
Commercial Lines, Inc., 291 NLRB 1066, 1069 (1988), and S.Q. I. Roofing, Inc., 271 NLRB 1,
fn. 3 (1984). Further, the Board has held that it makes no economic sense to hear and resolve
one issue and then to refrain from deciding a closely related issue. Clarkson Industries, 312
NLRB 349 (1993). As I have found that Respondent’s refusal to bargain over the identity of the
pension fund was not subject to deferral, a determination affirmed by the Board, I find that as a
matter of law and policy it would be appropriate to conclude that an additional allegation relating
to the alleged failure to contribute to any such fund, as raised by the charge in this matter, would
not be deferrable.
3. The Purported Agreement
As noted above, Respondent has argued that it did not unjustly enrich itself at its
employees’ expense because it applied moneys it would have contributed to a pension fund to
offset the increasing costs of providing health care coverage, at no cost to its employees.
Respondent claims that there was an express agreement with the Union to effect what would
be, in essence, a mid-term modification of the Agreement.
Insofar as this would be an affirmative defense posed by the Respondent, it bears the
burden of proof in this matter. It is well established that the burden of proof of proving an
affirmative defense lies with the party asserting it. Marydale Products Co., 133 NLRB 1232
(1961); Sage Development Co., 301 NLRB 1173, 1189 (1991). Here, I have concluded that,
although the evidence is somewhat equivocal, Respondent has failed to meet this burden.
As an initial matter I find Schlanger’s testimony about “countless” conversations held
with the Union regarding this matter fails to have the ring of truth and is otherwise
unsubstantiated by the record either in the underlying case or on remand. Schlanger could offer
no specific detail or other corroboration of any such discussions or negotiations with the Union
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and the written communications between the parties fail to establish any such sort of ongoing
dialogue. On the other hand, I did not find certain aspects of Machado’s testimony; in particular
her exhortation, relied upon by the General Counsel and referred to in his brief, that “I’m hearing
now that they’re saying they used the monies and that’s shocking to us,” to be credible,
particularly insofar as it is contradicted by other testimony proffered by this witness and
documentary evidence relied upon by the General Counsel. Thus, I find that with regard to this
issue at the least, the credibility of both witnesses is subject to question.
In resolving this question, however, I find it significant that, at the time of his testimony in
the initial hearing in this matter, which occurred on March 13, 2012, Schlanger failed to
reference any such agreement with the Union. While Respondent has argued that such
evidence was not relevant to the initial case, and that there was therefore no need to refer to it
in testimony, I do not agree. Clearly, if Respondent had reached an agreement with the Union
which would obviate its requirement to make pension fund contributions, the so-called “identity”
of the fund would be of no immediate importance and would have served as a defense to the
allegations of the underlying complaint. I find therefore, that Schlanger’s failure to reference this
purported mid-term modification of the contract at that time to raise a strong inference that such
an agreement did not exist.
I further find it of significance that Respondent was unable to adduce any notes or
writing of any sort which would document such a contract modification. In fact, the only such
material adduced in evidence, including communications from Respondent’s counsel, fail to
make any such reference or even hint that such an agreement had been reached.12 In a similar
vein, I do not agree, as Schlanger asserted, that the Union’s specific statement that it would not
apply the pension obligation toward health insurance premiums constitutes nothing more than a
“disclaimer.” In this regard, I note that Respondent failed to counter this statement by the Union
with any written documentation or other assertion that, in fact, an agreement had been reached.
Respondent has pointed to some evidence which, as is asserted, shows the existence of
an agreement such as the Union’s summary of contract negotiations (which includes a provision
for the payment of pension monies). It is contended that there would be no need to include such
a provision in its list of demands had there been an ongoing obligation to make such
contributions. This is speculation which is insufficient to meet Respondent’s burden of proof in
this regard and is, in any event, insufficient to counter the other evidence which points toward a
lack of agreement, as noted above.
Nor is the fact that the Union failed to take action to pursue the matter further either
before the Board or in arbitration sufficient to meet Respondent’s burden to show the existence
of a mid-term contract modification. At most, the record may support an inference of tacit
acquiescence on the part of the Union, but that is insufficient to meet the Respondent’s
affirmative burden to show that there was an express agreement to modify the terms of the
Agreement so that its obligation to contribute to its employees’ pension had been eliminated.
Based upon the foregoing, I reject Respondent’s affirmative defense that there was an
agreement between the Union and the Employer to offset health insurance costs with pension

12 In particular, attorney Weiss’ email dated February 17, 2012, fails to make any reference to an
agreement regarding health insurance offsets notwithstanding the fact that, as Schlanger testified, the
agreement had already been entered into. Rather, Weiss’ email indicated an expectation that employees
would contribute to the costs of health coverage.
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fund obligations due under the Agreement which obviated the Employer’s contractual obligation
to make such payments.
CONCLUSIONS OF LAW AND ORDER
I fully affirm the findings of fact and conclusions law set forth in my recommended
Decision and Order in this matter dated September 7, 2012. Based upon the foregoing, as
noted above, it is hereby ordered that the allegations of the amended complaint, to the extent
they are not coextensive with those contained in the initial complaint are dismissed.
REMEDY
I further find that after a due consideration of the Board’s decision in Cofire Paving
Corp., 359 NLRB No. 10 (2012) to the remaining issues presented by this case, no further
remedial action is warranted. 13
Dated, Washington, D.C. May 15, 2014

____________________
Mindy E. Landow
Administrative Law Judge

13 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.