Lincoln Educational Services-Mahwah

National Labor Relations Board - Administrative Judge Opinions

Oct 19, 2007

22-CA-027460 (N.L.R.B. Oct. 19, 2007)

JD(NY)-45-07
Mahwah, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
LINCOLN EDUCATIONAL SERVICES-MAHWAH
and Case 22-CA-27460
NJSFT LOCAL 6308, AFT/AFL-CIO
Benjamin W. Green, Esq., for the General Counsel
Gerald L. Dorf, Esq, (Dorf & Dorf, PC), of Rahway,
New Jersey, for the Respondent
DECISION
Statement of the Case
ELEANOR MACDONALD, Administrative Law Judge: This case was heard in Newark,
New Jersey, on April 4 and 23, 2007. The Complaint alleges that Respondent, in violation of
Section 8(a)(1) and (5) of the Act, changed health insurance coverage and the monetary
contribution of unit employees, assigned supervisors to perform unit work, and refused to
provide the Union with certain information. The Respondent denies that it has engaged in any
violations of the Act.
On the entire record, including my observation of the demeanor of the witnesses and
after considering the briefs filed by the parties in July 2007, I make the following1
Findings of Fact
I. Jurisdiction
The Respondent, a corporation with an office and place of business at 70 McKee Drive,
Mahwah, New Jersey is engaged in the business of teaching vocational trades. Respondent
annually derives gross revenues in excess of $1,000,000 and purchases and receives goods
valued in excess of $50,000 directly from points outside the State of New Jersey. The parties
agree and I find that Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act, and that NJSFT Local 6308, AFT/AFL-CIO, is a labor
organization with in the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
Lincoln Educational Services operates some 35 campuses offering career-oriented

1 The record is hereby corrected so that at page 32, line 13, the correct date is “11-28.”
JD(NY)-45-07
5
10
15
20
25
30
35
40
45
50
2
education. Lincoln employs about 2000 individuals nationwide. The Mahwah campus operated
by the Respondent offers courses in three departments; automotive, HVAC (heating, ventilation,
air conditioning), and EST (electronic systems technician). Students who attend the school
during the day will typically complete their chosen program in 12 to 13 months.2 Each program
consists of a number of courses or modules which are from 16 to 20 days long. At the time of
the instant hearing the Mahwah campus had 600 students and employed 28 instructors. In
2005 there were 1200 students and 42 instructors.
On March 15, 2005, the Union was certified as the exclusive collective-bargaining
representative of employees in the following unit:
All full-time and regular part-time instructors employed by the Employer at its 70 McKee
Drive, Mahwah, New Jersey facility, but excluding all office clerical employees,
managers, guards and supervisors as defined in the Act and all other employees.
Many of the Mahwah facility instructors work four days and two evenings per week.
Some instructors work part-time and some instructors work their regular hours plus overtime.
At all of Respondent’s campuses the employees are covered by health insurance.
Employees are offered a choice of plans with varying benefits and varying rates of employee
contributions to the cost of the plan. It has been Respondent’s practice in the fall of each year
to inform employees of the plans that would be available beginning January 1 of the next year.3
From 2002 to 2005 CIGNA was the health insurance carrier. When the Union was certified at
the Mahwah facility in 2005 the unit employees had a choice of four CIGNA plans.
B. Negotiations and Health Insurance
Daniel Buckley, an automotive instructor, is the president of Local 6308. Buckley is a
member of the bargaining committee. The first bargaining session between the company and
the Union was held on April 8, 2005. From April to June 2005 NJSFT employee Seth Goldstein
was the lead negotiator, and from June 2005 to February 2006 NJSFT employee Joanne
McAvoy was the lead negotiator. NJSFT employee Fougeres Ferrier was the lead negotiator
from February to June 2006. On June 15, 2006 Buckley became the lead Union negotiator at
the request of the Local executive board.4
The employer’s lead negotiator is Attorney Dorf; he is accompanied by managers of the
Respondent including Director of Education Kenneth Jacob and Senior Vice President Stephen
Buchenot.
The employer’s position throughout the negotiations has been that economic subjects
would be negotiated last. Respondent told the Union that it would not negotiate concerning
wages and health insurance until other subjects had been agreed upon. On cross-examination
Attorney Dorf asked Buckley to confirm that “[T]he company never refused to negotiate medical
costs with you, did they?” Buckley’s testimony that Dorf told the Union “that financials come last
… That’s not an outright refusal, but again it was financials come last” is not disputed by any

2 The automotive department gives classes during the day, the afternoon and the evening.
The HVAC and EST departments give classes in the day and evening.
3 Employees at other facilities who are represented by a union are covered by health
insurance plans negotiated with their collective-bargaining representative.
4 This recitation is based on the testimony of Buckley, whom I credit.
JD(NY)-45-07
5
10
15
20
25
30
35
40
45
50
3
credible evidence. As of the date of the instant hearing matters such as wages, duration of the
contract, severance pay, 401(k) plan and health insurance had not been negotiated to
completion.
On March 21 and 30, 2005 Buckley wrote to Tom Lynch, the then Executive Director at
Mahwah, requesting various sorts of information as follows:
1. Complete description of health plans offered.
2. Complete description of ancillary benefits offered….
3. Enrollment in each plan … showing the number of employees with family and single
coverage…
4. Last year, current year, and projected monthly rates.
5. Employer contribution to each plan and method of determination (percentage of cost,
flat dollar).
6. Financing information on each plan (such as type of insurance arrangement or self
insured….)
7. Experience statements.
8. Information on any cost containment efforts….
9. Utilization data on each health plan…. [this was followed by a lengthy list of data
requested].
10. Employer practice for continuing coverage to retirees.
11. Copies of any consultants’ report.
12. Employer proposals, if any.
13. Geo-access studies on HMO plans….
14. Copy of claims denial appeal procedure, if any.
On October 9, 2005, Buckley wrote to Dorf requesting “cost data” concerning the
medical insurance plan.
On October 25, 2005 Dorf replied to Buckley acknowledging receipt of his October 9
letter. Dorf requested that “negotiations and related matters … be directed through Ms.
McAvoy.”
Buckley testified that as of October 25 the Union had received a list of instructor names
and addresses, the pay schedules for 2005 and the summary medical plan information that had
been given to employees in 2004 for the year 2005.
On November 21, 2005 the Respondent informed unit and non-unit employees at
Mahwah that it would be conducting a meeting and presenting video material about a new
health carrier and a new choice of plans for 2006. Buckley testified that he attended a meeting
at which employees received materials concerning a new carrier, United Healthcare, and a
choice of four new plans. Employees were instructed to submit enrollment forms by November
28 based on the information contained in the summary description of the plans including a table
of employee contributions for each plan. In addition, dental and vision insurance and some
flexible spending plans were offered to employees. The record evidence shows that employee
contributions to the cost of medical insurance increased from 2005 to 2006 but that the
company’s contribution for the various plans decreased. The total premiums, and thus the total
cost of health insurance, decreased in 2006 compared to 2005.
Buckley testified, without contradiction, that no mention was made of the Union or of the
necessity to negotiate changes in health insurance with the Union at the meeting conducted on
November 21. The Respondent did not give advance notice to the Union that it would be
JD(NY)-45-07
5
10
15
20
25
30
35
40
45
50
4
conducting a meeting concerning new health insurance plans on November 21, 2005.
The Union and the employer conducted a bargaining session on December 2, 2005. On
this occasion, Joanne McAvoy requested complete details of the old CIGNA and the new United
Healthcare plans so that she could compare the costs and benefits. McAvoy informed the
employer that the Union objected to any unilateral increase in health insurance costs to be
borne by the employees. McAvoy said the new plan had to be negotiated with the Union and
that the Union reserved its right to file unfair labor practice charges if the employer imposed
increased costs. Buckley testified that McAvoy said the Union “would not accept an increase in
rates, and she also requested information on the details of the plans.” Dorf replied that the old
and new plans were substantially similar. He said there was a higher cost to remain with
CIGNA and that a cost increase would be passed to the employees. Dorf said that further
information could be obtained from the United Healthcare website. However, Buckley testified,
without contradiction, that the Union did not have a password to obtain information from the
website.
Buckley testified that in response to McAvoy’s objections to the unilateral change in
health insurance for unit members the employer’s position was, “this was a company wide plan,
that there were 2000 employees involved. This was it.”
Senior vice-president Stephen Buchenot stated that he was a member of the company’s
negotiating team. Buchenot testified that the Union never asked to discuss the cost of the
health insurance and he could not recall that McAvoy objected to an increase in employee
contributions for the 2006 health insurance. Buchenot said the Union only wanted to know what
was covered under the new United Healthcare plans. However, Buchenot also testified,
inconsistently, that the company said insurance was a monetary item and could only be
discussed after the rest of the contract had been agreed upon. I note that Attorney Dorf stated
on the record in the instant hearing that, “[T]he Union as part of the negotiations wanted to
discuss and wanted in fact not to have to pay the increase.” I shall not credit Buchenot’s
testimony about the Union’s position on changes in the coverage and the cost of the health
insurance. I find that Buchenot did not have an accurate recollection of the events.
I shall rely on Attorney Dorf’s representation to the ALJ, made during a discussion
concerning the Respondent’s obligation to produce documents subpoenaed by Counsel for the
General Counsel, that it is not the employer’s defense in the instant proceeding that the United
Healthcare plan was substantially the same as the CIGNA plan.
On June 12, 2006, Fougeres Ferrier wrote to Dorf commenting that “the copies of the
Open Enrollment options 2006 and the Summary Plans you submitted to me did not really
address our request.” Ferrier requested the following information so that the Union “can put
together our economic package….”
a) Health insurance premiums paid in 2005 including LTI and employees contributions
for management, non-union employees, and instructors represented by local 6308.
b) Health Insurance premiums paid so far in 2006 for all three groups.
c) The same data for prescriptions including deductions.
d) The same data for Dental and Eyeglass Insurances.
e) The same data for Pension and the percentage participation by our members.
f) The same data for Disability Insurance State and/or Private Plans.
On July 12, 2006, Dorf handed the Union a two page description of the four plans
available in 2006. I note that this description was less comprehensive than the multi-page
JD(NY)-45-07
5
10
15
20
25
30
35
40
45
50
5
summary descriptions given to the employees as part of their enrollment kits in November of
2005.5 On July 12, 2006 Dorf also gave the Union a paper showing the costs for coverage
under the various 2005 CIGNA plans and the costs for the 2006 United Healthcare plans,
including a breakdown showing the costs to the employee and the employer for each plan for
health insurance as well as dental and vision insurance.
On August 28, 2006 Buckley wrote to Dorf stating that the Union had not received a
Certificate of Coverage for the plans in effect in 2006 and repeating the request for this
information. Buckley stated
[I]t became obvious there has been a reduction in coverage … Local # 6308 hereby
requests copies of the 2005 CIGNA group plan and/or COC….
On September 2, 2006 Buckley again wrote to Dorf stating that he had not received the
“group policy and/or Certificate of Coverage” from United Healthcare. Buckley stated that at the
August 28 meeting Dorf said that the employer did not have the group policy or the certificate of
coverage but that “specific questions could be answered.” Buckley complained that Dorf had
not given him the address so that the Union could obtain answers to its questions. Among other
questions, Buckley posed the following:6
[T]here was a change of insurance providers and we have found a significant decrease
in cost to the employer. I think a summary of material modifications is also in order.
… Local # 6308 became aware of an insurance company that offered incentive to in-
network doctors for not making referrals. Does the current UHC plan include such
incentives?
Buckley testified that in September or October 2006 the Union received the certificates
of coverage for the four United Healthcare plans that had been in effect since January 1, 2006.
Vice-president Buchenot also recalled that the employer gave the Union the certificates of
coverage in late 2006. Before that, the company had been working from a draft certificate.
Buckley testified that he first heard that there would be a further change in medical
insurance effective 2007 from a fellow-employee. At a November 3, 2006 bargaining session
the Union asked about the new health insurance program and the employer said that meetings
would be scheduled to inform employees about the new plan and that there would be changes
in the cost to employees. The Union replied that this matter should be bargained by the parties.
The Union said that the employer should hold the line on costs and that it should give raises to
the employees.7
Buckley followed up with a letter on November 5 reiterating the Union’s position. On

5 The summary plans given to the employees in November 2005 state “This summary of
Benefits is intended only to highlight your Benefits and should not be relied upon to fully
determine coverage… Please refer to the Certificate of Coverage for a complete listing of
services, limitations, exclusions and a description of all the terms and conditions of coverage….”
6 Buckley closed by asking that the parties meet once a week so that a contract could be
achieved.
7 Prior to January 2006 the employer had given merit bonuses in January or February of
each year.
JD(NY)-45-07
5
10
15
20
25
30
35
40
45
50
6
November 29, 2006 he asked Dorf to provide the cost tables reflecting the employer’s and
employees’ contributions to the new 2007 medical plans. In addition he asked for enrollment
information in the various benefit plans. On December 13 Buckley again wrote to Dorf
requesting the cost tables for 2007. At the same time Buckley asked the employer to grant an
interim wage increase and to keep employee health insurance contribution costs at their
previous levels.
Janice Aloia, the Director of Benefits for Respondent since May 15, 2006, testified that
the company began the renewal process for health insurance coverage at the end of August
2006 when it received quotes from the insurance company for coverage in the year 2007. Aloia
stated that the company wide claims experience for 2006 was not favorable and at first United
Healthcare wanted a 48% increase in premiums. However, Respondent was able to negotiate
the carrier down to a 42% increase for 2007. The changes in the health insurance plans were
approved on October 13, 2006 by the company’s chief financial officer.
The Respondent retained United Healthcare as the medical insurance carrier for 2007
but it dropped two of the plans it had offered in 2006 and it introduced a Health Reimbursement
Account (HRA) plan. The employee contributions for the two plans that were retained increased
dramatically.
C. Requests for Information
In letters dated June 28, July 14 and July 20, 2006 the Union requested certain
information. The requests are summarized and explained in the following paragraphs.
Complete IAP Manual: On April 7, 2005 Respondent conducted a presentation to
employees of it “Integrity Assurance Program”. Employees were given a summary booklet and
told that they could be disciplined and dismissed if they failed to comply with the IAP concerning
such issues as sexual harassment, theft, falsification of documents and the like. The Union
requested a copy of the complete IAP manual. Respondent said that the Union could view the
manual in the Executive Director’s office. Buckley testified that the Union was informed that it
could not make copies of either the entire manual or of selected pages. No copies of the
manual or parts of it were permitted to leave the Director’s office.
Personnel Handbook: The Union requested a “complete personnel manual as it applies
to working conditions, benefits, performance appraisals, and other such evaluations.” Buckley
testified that the Union received part of the personnel handbook with a discussion of personal
days, holidays and severance pay. However, the employer did not furnish the complete
manual.
Expense Reports: The Union requested copies of expense reports submitted by unit
employees for reimbursement for the years 2004 to 2006. Buckley testified that the Union
requested the expense reports so that it did not bargain away expenses that were normally
covered by the company. The Union has received conflicting reports from unit employees as to
whether travel expenses and lunch for technical seminars or educational upgrade courses have
been reimbursed by the employer. Certain instructors purchase supplies for their classes and
the Union wished information about reimbursement for these items as well. Buckley testified
that the employer did not furnish the requested information
Earnings Statements and Related Information: The Union requested copies of earnings
statements for each instructor, hourly rates, gross pay, bonuses, hours worked, and overtime
paid for 2001 to 2006, but the Union expressed its willingness to accept information limited to
JD(NY)-45-07
5
10
15
20
25
30
35
40
45
50
7
the past three years. Buckley testified that the Union needed the information about total hours
worked and total compensation because it was impossible for the Union to estimate how many
hours per year all the employees worked. The Union wished to cost out the contract. The
employer refused to give the Union earnings information for employees unless the Union
obtained individual releases from each employee. The Union obtained some hourly rate
information in 2007.
Teaching Assignments and Retention Rate Data: The Union requested a summary of
class teaching assignments for each instructor including the shift, name of course, number of
students and student retention rate. Buckley testified that instructors are paid retention bonuses
if students do not drop out of a certain course.8 Buckley explained that if an instructor is
teaching all introductory courses he will have a higher drop out rate because students in these
courses may lack commitment or may drop out when financial aid does not materialize. Further,
if an instructor teaches 30 students and one student drops out that instructor is bringing in more
revenue than an instructor teaching only 15 students even if none drop out. The union wanted
to try to devise a more equitable program than the one currently used to reward instructors
whose students did not drop out of class. The Respondent did not furnish this information.
Attendance Records: The Union requested instructor attendance records for 2001
through 2006, but it expressed its willingness to accept data for 2004 through 2006. Buckley
testified that there had been disparate enforcement of attendance requirements and subsequent
disciplinary actions and the Union wished to formulate a position concerning this issue.
Cross Training Records: The Union requested records of cross training for all
instructors. Buckley explained that cross training made an instructor more valuable to the
employer and the Union wanted to propose that cross training be conducted in an equitable
manner. The Respondent did not furnish this information.
Appraisals, Performance reviews and Merit Raises: The union requested the results of
appraisals and reviews for current instructors and the formula used to calculate the merit raises.
Buckley testified that the employer gave annual merit raises before the Union was certified and
the Union wished to bargain over the calculation of the raises. The Respondent did not furnish
this information.
In a letter dated July 26, 2006 Dorf replied to the Union requests for information by
stating that the requests were “burdensome, over-broad, unwarranted and unnecessary” and
constituted a “fishing expedition.”
D. Assignment of Supervisors to Teach Classes
Buckley testified that before February 2006 supervisors did not teach entire courses. If
an instructor was unable to teach a class due to an emergency or because he had taken a
vacation day a supervisor might be assigned to fill in.
Director of Education Kenneth Jacob testified to the same effect concerning the use of
supervisors to fill in for absent instructors. Jacob stated that he preferred not to use supervisors
to teach courses because the supervisors were needed to perform supervision and not teaching
duties. Jacob testified that the employer only used a supervisor to teach an entire four or five
week course if it was not able to hire an instructor. However, Jacob did not testify with

8 Buckley has received a $60 retention bonus when no student dropped a particular class.
JD(NY)-45-07
5
10
15
20
25
30
35
40
45
50
8
specificity on this subject as it related to events material to the instant proceeding and Jacob
gave no example of a supervisor teaching an entire course prior to the Union’s certification.
Thus, Respondent has presented no evidence that supervisors taught entire courses before the
Union was certified.
In a December 14, 2005 letter to the Regional Office, Attorney Dorf stated that due to
“business reasons, particularly decreased enrollment,” HVAC Instructor Gerard McVeigh was
laid off effective October 3, 2005. Dorf stated that due to flat enrollment HVAC would no longer
have a floating instructor and “a full-time instructor must be laid off and the supervisor would be
made available to serve as a classroom substitute.” The letter continued, “Mark Urscheler, an
instructor with more seniority and versatility … would be available to cover any modules”
currently taught by McVeigh. Dorf concluded, “[I]n a number of materials the ‘layoff’ of Mr.
McVeigh is referred to as a ‘termination’ … Mr. McVeigh was in fact laid off rather than
terminated….” At the instant hearing, while on redirect examination by Counsel for Respondent,
Jacob said that McVeigh was caught stealing from the cafeteria and he resigned after a five-
week suspension. However, Jacob then changed his testimony to state that McVeigh did not
resign nor was he discharged for cause but that he was laid off.9
Dorf’s letter also referenced a 2005 layoff in the EST department for business reasons;
the instructor in that case was Benjamin Powell. At the hearing Jacob testified that EST
instructor Ken Hunter resigned in 2006 and he was replaced by part-time instructor Joseph Pete
who was hired on March 6, 2006.
Sometime after February 2006 HVAC supervisor George Gardianos was assigned as a
permanent instructor for an entire class. In May 2006 EST supervisor Elizabeth Wagner was
assigned as the instructor for a class. The employer did not notify the Union that this would
happen and the employer had not offered to bargain about assigning supervisors to teach entire
classes. Buckley testified, without contradiction, that the Union told the employer that it
objected to supervisors being given a full-time class assignment. The employer replied that
Wagner’s assignment was in response to an emergency situation.
Jacob, who was on the employer’s negotiating team, confirmed that the Respondent did
not notify the Union that Gardianos and Wagner were being assigned to teach entire classes.
The record shows that Wagner taught evening classes beginning May 24, 2006 and
from June 22 to September 13, 2006. She also taught a day class from September 12 to
October 6, 2006 and an evening class from September 14 to December 5, 2006. In total,
Wagner has taught nine full courses.
Jacob testified that Gardianos taught a number of classes. At first Jacob testified that
Gardianos replaced instructor George Alfano when Alfano retired on March 8, 2006. However,
Jacob also testified that when he learned of Alfano’s retirement he rehired David Driess as of
March 13 to replace Alfano.10 Driess came to work on March 13 and began to take sick leave
on May 1, 2006. Jacob acknowledged that supervisor Gardianos was assigned to teach an

9 I do not credit Jacob’s tardy testimony, given after lengthy direct testimony and cross-
examination, that McVeigh resigned after being caught in an impropriety. If this had been true,
Counsel for Respondent would not have represented to the contrary in his 2005 letter to the
Regional Office and Counsel would surely have solicited testimony to this effect when he
examined his witness on direct.
10 Driess had worked for Respondent three years previously.
JD(NY)-45-07
5
10
15
20
25
30
35
40
45
50
9
entire course on the same day that Dreiss replaced Alfano. Jacob finally said that he could not
say for sure who Gardianos was covering for.
Paul McIntosh left on disability around March 4, 2006 and Gardianos taught his class
from May 18 to June 22, 2006. No specific testimony was adduced to show why an instructor
could not be hired to replace McIntosh in the weeks between March and May. No reason was
given for assigning Gardianos to teach two additional classes from June 26 to September 5,
2006. Jacob testified that Gardianos taught a class from September 6 to October 10, 2006
because two newly hired instructors did not have cross training.11 Respondent did not show
that it had tried and failed to hire qualified instructors. Gardianos taught two evening classes
from April 12 to July 10 and from July 11 to October 3, 2006 because the employer had no
instructor available to teach evening classes. No specific testimony was offered to show efforts
to hire instructors to teach these classes. In total Gardianos taught eight full courses.
Jacob testified the company had never tried to rehire laid off instructors McVeigh or
Powell. Jacob did not explain why additional instructors were not hired to free Gardianos and
Wagner to perform their regular supervisory duties as soon as it became clear that there were
not enough instructors to teach the scheduled classes.
Respondent introduced records to show that it advertised for instructors beginning in the
summer of 2006. However, no witness explained why the efforts to hire instructors were
unavailing, supposing that in fact it was impossible to hire instructors. Respondent also placed
in evidence “job requisition forms” which are apparently requests from the Mahwah facility to
corporate headquarters for permission to hire instructors. Most of these requisitions do not
seem to have been approved by the corporate officers charged with authorizing the hiring of
instructors. No specific testimony was offered to explain the significance of these job requisition
forms. Respondent also presented lists of responses to its advertisements seeking instructors
for HVAC and EST classes, but no testimony explained why it was not possible to hire from
these lists.
In the course of the negotiations the Union and the employer have agreed on many
articles of their prospective contract. One Article, agreed on July 8, 2005, is entitled
“Supervisory Personnel.” It provides as follows:
A. Supervisory employees may be utilized by the School Administration for teaching
assignments. Such teaching assignments will be on a substitute basis and will not
constitute a regular full-time assignment.
B. It is understood that a substitute basis means covering for an employee temporarily
unable to perform his/her duties but expected to return to employment, and/or filling a
vacancy until a person is hired to fill the vacancy.
Jacob testified that he was familiar with this article but that the parties had never
discussed putting the provision into effect immediately. Buckley testified that the parties had no
agreement that the supervisory personnel article would be effective immediately. Buckley
stated that there was no general agreement at the table that agreed-upon articles would go into
effect before the entire contract was signed. The one exception was the provision relating to the
Union bulletin board where the employer agreed that the Union bulletin board would be
implemented immediately. Despite vigorous cross-examination Buckley could not recall that

11 The new instructors were Bandura and Johnson.
JD(NY)-45-07
5
10
15
20
25
30
35
40
45
50
10
any other articles have been put into effect. Thus, there is no record evidence that the parties
agreed to put the supervisory personnel article in effect beginning in 2005.
III. Discussion and Conclusions
A. Health Insurance
I find, based on the testimony of Buckley and the many written requests for information
concerning health insurance coverage, that the Union indicated its desire to negotiate this
aspect of the employees’ terms and conditions of employment. Thus, in advance of the first
bargaining session between the parties the Union requested information concerning the cost of
health insurance and a complete description of the health benefits available to unit employees.
I credit Buckley that on December 2, 2005 Union representative McAvoy repeated the request
for health insurance cost and benefit information. I rely on Attorney Dorf’s statement on the
record that the Union wanted to discuss the relative costs of health insurance under CIGNA and
United Healthcare. The documentary evidence shows that throughout the year 2006 the Union
continued to ask for benefit information and continued to request information concerning the
present and future costs of coverage.
I credit Buckley’s uncontradicted testimony that throughout the negotiations Respondent
maintained the position that economic subjects would be negotiated after all other matters had
been agreed upon. I credit Buckley that Respondent refused to negotiate concerning health
insurance until the parties reached agreement on other subjects.
I credit Buckley’s uncontradicted testimony that Respondent did not give the Union
notice and an opportunity to bargain before it announced a change in health insurance plans
and coverage for unit employees effective January 1, 2006. I credit Buckley’s uncontradicted
testimony that on November 21, 2005 when Respondent announced the new plans and costs to
the employees the Respondent did not state that changes in health insurance had to be
negotiated with the Union. The new plans were announced as a fait accompli.
I credit Buckley that on December 2, 2005 McAvoy objected to unilateral changes in
health insurance plans and costs for the year 2006 and told Respondent that these had to be
negotiated with the Union. I credit Buckley that McAvoy also requested information on the
details of the plans. I credit Buckley’s uncontradicted testimony that the employer’s position
was that the new plan was “company wide” and “this was it.”12
I credit Aloia that in August 2006 Respondent began considering changes in health
insurance for the year 2007 and that Respondent made a final decision concerning changes in
the plans and costs on October 13, 2006.
I credit Buckley’s uncontradicted testimony that Respondent did not give the Union
notice and an opportunity to bargain before making changes in the plans and costs of health
insurance for unit employees effective January 1, 2007. I credit Buckley that he heard from a
fellow employee that changes were in the offing for 2007. On November 3, 2006 the employer

12 Respondent’s Brief states that the Union did not raise any issue with regard to the content
of the plans. However, the record shows that McAvoy asked for details of plan benefits and
said new health insurance plans had to be bargained with the Union. In 2006 the Union
repeatedly requested the certificate of coverage for the new health plans and the Union asked
questions about apparent changes in coverage.
JD(NY)-45-07
5
10
15
20
25
30
35
40
45
50
11
said meetings would be held to inform employees about the changes in health insurance. I
credit Buckley that although the Union said that the changes should be a matter for bargaining,
the changes in health insurance were announced to employees as a fait accompli.
Respondent’s brief states that the company “was forced to change the choice of various
different plans” (emphasis in original). The Brief states that “on January 1, 2006 and January 1,
2007 the employer was forced to make changes in the number and types of plans available …
as a result of a massive 42% increase change.” The Brief asserts that the company gave the
Union notice of the changes in health insurance and “proceeded to place on the bargaining
table for negotiation the costs of said plans.” I note that there is no evidence in the record about
any circumstances leading to the Respondent’s decision to change the employees’ contributions
and the health insurance plans effective January 1, 2006. Respondent offered no testimony to
show why it abandoned the existing CIGNA plan and switched to United Healthcare. As to the
change effective January 1, 2007, Aloia stated only that Respondent negotiated with United
Healthcare so that the cost went up 42% instead of 48%. Aloia said the decision to change the
mix of health insurance plans available to employees for 2007 was made between August and
October 2006. She did not testify to any economic emergency or its effect on Respondent.
Further, there is no testimony in the record that the company gave notice to Union and
negotiated about either the changes in the cost of health insurance to employees or the content
of the plans before implementing changes in either 2006 or 2007. Indeed, all the testimony on
the record shows that the Respondent gave no notice to the Union, that it announced new
health insurance plans to the employees without mentioning the need to bargain with the Union
and that Respondent would not bargain about health insurance in 2005 and 2006 because it
wished to negotiate economic items after all other subjects had been agreed upon.
It is well settled that during collective bargaining negotiations an employer may not make
changes in terms or conditions of employment absent a bargaining impasse. NLRB v. Katz, 369
U.S. 736 (1962). The Board discussed certain exceptions to this rule in RBE Electronics of
S.D., 3320 NLRB 80 (1995). Both the General Counsel and the Respondent rely on the Board’s
Decision in RBE Electronics and in particular on the Board’s discussion of economic exigencies
which might excuse otherwise unlawful implementation of changes by an employer. In that
case the Board reviewed a line of cases which held that where “parties are engaged in
negotiations for a collective-bargaining agreement, an employer’s obligation to refrain from
unilateral changes extends beyond the mere duty to provide notice and an opportunity to
bargain about a particular subject matter; rather it encompasses a duty to refrain from
implementation at all, absent overall impasse….”13 The Board reiterated two exceptions to the
rule; where a union engages in delaying tactics and where economic exigencies exist. 320
NLRB at 81. The Board remarked that the economic exigency exception generally had required
a heavy burden and the involvement of circumstances which require implementation at the time
the action is taken or an economic business emergency that requires prompt action. The Board
expanded the economic exigency exception and stated
We believe, however, that there are other economic exigencies, although not sufficiently
compelling to excuse bargaining altogether, that should be encompassed within the
Bottom Line exception. … [T]he employer will satisfy its statutory obligation by providing
the union with adequate notice and an opportunity to bargain [and] the employer can act
unilaterally if either the union waives its right to bargain or the parties reach impasse on
the matter proposed for change. … [W]e will require the employer to show a need that
the particular action proposed be implement promptly. … [T]he employer must

13 This line of cases arises from Bottom Line Enterprises, 302 NLRB 373 (1991).
JD(NY)-45-07
5
10
15
20
25
30
35
40
45
50
12
additionally demonstrate that the exigency was caused by external events, was beyond
the employer’s control, or was not reasonably foreseeable. 320 NLRB at 81-82
(citations omitted)
I find that Respondent did not meet the criteria of RBE Electronics quoted above.
Respondent provided no notice and an opportunity to bargain about the changes in medical
coverage effective January 1, 2006 and January 1, 2007. Moreover, aside from some vague
testimony about increased costs, the Respondent provided no proof of economic exigency.
Finally, whatever circumstances impelled Respondent to change carriers in 2006 and to change
the plans in 2007, there is no showing on the record that they were not reasonably foreseeable.
I find that that Respondent violated Section 8(a)(5) and (1) of the Act when it changed
the carrier for health insurance coverage on January 1, 2006 and when it changed the available
plans and the monetary contributions of unit employees on January 1, 2006 and January 1,
2007.14 Larry Geweke Ford, 344 NLRB 628 (2005).
B. Requests for Information
Respondent was required to furnish information to the Union that was necessary for the
Union to fulfill its duty to bargain on behalf of unit employees. Wage rate information and other
information concerning bargaining unit employees are presumptively relevant and must be
produced. Curtiss-Wright Corp., 145 NLRB 152 (1963), enf’d 347 F.2d 61 (3rd Cir. 1965). I shall
deal with the Union’s information requests in the order presented above.
The Respondent argues generally that it has turned over many documents to the Union
and that other documents requested were voluminous. The furnishing of some information to
the Union does not excuse the refusal to furnish other information which may be relevant to the
Union’s duty to bargain on behalf of the employees. Furthermore, the mere fact that a
document is lengthy does not disqualify it from being turned over to the Union. Respondent did
not introduce any testimony to show that the information request was unduly burdensome or
costly. Respondent failed to show that it discussed with the Union any means of producing the
information that would lessen the burden or the cost to the employer.
The uncontradicted testimony shows that employees were told of an Integrity Assurance
Program and were warned that they could be disciplined if they failed to comply with the
program. Although Respondent permitted the Union to view the IAP manual the Union was
prohibited from making copies of the manual or of relevant pages. Materials concerning
potential discipline of employees are relevant to the Union’s representation of the unit.
Respondent presented no evidence why the Union could not be given a copy of the IAP manual
or could not be permitted to pay for copies. I find that the Union is entitled to a copy of the IAP
manual.
The uncontradicted testimony shows that the Union requested a complete personnel
manual as it applies to working conditions, benefits, performance appraisals and other
evaluations, but that Respondent only furnished some information related to personal days,
holidays and severance pay. All of the material requested is relevant to the Union’s
performance of its duties to the bargaining unit. Respondent has not explained its refusal to

14 I rely on Attorney Dorf’s record statement that Respondent does not contend that the
United Healthcare plans of 2006 and 2007 were substantially the same as the 2005 CIGNA
plan.
JD(NY)-45-07
5
10
15
20
25
30
35
40
45
50
13
provide the Union with all the information requested. I find that the Union is entitled to all the
sections of the personnel manual it requested.
The Union requested copies of expense reports showing reimbursement to unit
employees for the years 2004 to 2006 for travel, meals and supplies. Respondent presented no
evidence why it should not furnish the Union with this compensation information. I find that the
Union is entitled to this information which relates to wages and benefits and would help the
Union insure that it did not relinquish any monetary benefits during collective bargaining
negotiations.
The Union requested earnings statements, hourly rates, gross pay, bonuses, hours
worked and overtime paid to unit employees for a five year period. However, the Union stated
its willingness to limit production to information for the past three years. All of this information
concerns wages and hours and is presumptively relevant to the Union’s duty to bargain on
behalf of the employees. Respondent argues that this information is private and it refused to
turn over the figures unless the Union obtained individual releases from each employee. The
Respondent’s reliance on Detroit Edison v. NLRB, 440 U.S. 301 (1979), which dealt with the
sensitive and private nature of psychological aptitude tests, is inapposite and requires no further
discussion.
The Union requested a summary of class teaching assignments, shifts, courses, number
of students and student retention rates. This information relating to assignment of work and
number of students taught and retained is relevant to the Union’s duty to bargain on a number
of subjects, including the devising of a system of retention bonuses. The Union is entitled to
receive this information.
The Union requested instructor attendance records for five years but expressed its
willingness to accept data for the last three years. Buckley’s uncontradicted testimony
establishes that this information relates to the uniform enforcement of attendance requirements
and possible disciplinary action and it should have been furnished to the Union.
The Union requested records of cross training for unit employees in order to formulate a
proposal that cross training be conducted in an equitable manner. Respondent has not
presented any evidence or specific argument related to this request. Training to perform the
duties of unit work is a condition of employment and the requested material should have been
furnished to the Union.
The Union requested the results of employee appraisals and information concerning the
formula that had been used to calculate merit raises. The Respondent argues that this
information need not be turned over because no merit increases have been granted since the
Union was certified. However, the Union may wish to formulate a bargaining demand relating to
the granting of merit increases; the information requested would be relevant to any such
demand. The requested material should have been furnished to the Union.
C. Assignment of Supervisors to Teach Classes
As discussed above, there is no evidence that supervisors were assigned to teach entire
courses before the Union was certified. Accordingly, the assignment of Gardianos and Wagner
to teach numerous entire courses was a change in a mandatory subject of bargaining. Also, as
found above, there is no evidence that the Union and the employer ever discussed the
immediate implementation of or agreed to the immediate effectiveness of a contract clause
permitting supervisors to perform unit work under certain circumstances. Thus, it is
JD(NY)-45-07
5
10
15
20
25
30
35
40
45
50
14
unnecessary to discuss whether the future contract clause might waive the Union’s right to
bargain over this matter.
The credible evidence shows that Respondent laid off HVAC instructor McVeigh in
October 2005 due to decreased enrollment and laid off EST instructor Powell sometime in 2005
for the same reason. EST instructor Hunter resigned in 2006 and a part-time instructor was
hired to replace him.
HVAC supervisor Gardianos began teaching entire courses in February 2006 and EST
supervisor Wagner began teaching entire courses in May 2006. Jacob was unable to establish
that Gardianos was covering for any instructor on an emergency basis beginning February
2006. The evidence shows that as the year progressed, Gardianos taught more entire classes.
There was no evidence to show that when Wagner was assigned to teach entire EST courses
she was doing so on an emergency basis. As shown above, Wagner taught many classes in
2006. Although the employer presented some testimony concerning fluctuating student
enrollment, there was no specific and detailed evidence to show that an economic exigency
justified the assignment of supervisors to teach entire courses beginning in 2006.
Respondent presented documents to show it advertised for instructors and Jacobs
testified that the employer eventually hired some instructors, but no witness testified that
Respondent was unable to hire qualified instructors to teach the many courses covered by
Gardianos and Wagner in 2006. There was no specific testimony about efforts to hire
instructors for the actual courses taught by Gardianos and Wagner and no specific details of the
reasons, if any existed, that suitable applicants could not be hired in time to teach the courses.
As noted above, Respondent did not attempt to recall the two laid off instructors.
The uncontradicted testimony shows that Respondent did not notify the Union and offer
to bargain when it began assigning supervisors to teach entire classes. I credit Buckley’s
uncontradicted testimony that the Union informed Respondent that it objected to supervisors
teaching entire classes. The unilateral assignment of supervisors to teach entire courses in the
absence of any demonstrated economic or other exigency violated Section 8(a) (5) and (1) of
the Act. Goya Foods of Florida, 347 NLRB No. 103 (2006), slip opinion at 3.
Conclusions of Law
1. NJSFT Local 6308, AFT/AFL-CIO, is the exclusive collective bargaining
representative of the employees of Respondent in the following appropriate unit
All full-time and regular part-time instructors employed by the Employer at its 70 McKee
Drive, Mahwah, New Jersey facility, but excluding all office clerical employees,
managers, guards and supervisors as defined in the Act and all other employees.
2. By changing the health insurance carrier and insurance plans available to unit
employees and by changing the monetary contribution of unit employees toward their insurance
coverage on January 1, 2006 and January 1, 2007 without notice to the Union and an
opportunity to bargain, Respondent violated Section 8(a)(5) and (1) of the Act.
3. By assigning supervisors to perform unit work since February 2006 without notice to
the Union and an opportunity to bargain, Respondent violated Section 8(a)(5) and (1) of the Act.
4. By failing and refusing to provide information to the Union which is necessary for and
relevant to the Union’s performance of its duties as the representative of the unit, Respondent
JD(NY)-45-07
5
10
15
20
25
30
35
40
45
50
15
violated Section 8(a)(5) and (1) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, 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 must make available the health and medical coverage benefits that
were provided to unit employees before the 2005 CIGNA plan was unilaterally terminated. In
addition, Respondent shall reimburse unit employees for any expenses ensuing from the
unilateral change from the 2005 CIGNA plan, including the increased cost of employee
contributions and other expenses incurred as a result of the change in insurance plans. The
reimbursement to employees shall be computed as prescribed in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1171 (1987).
The Respondent having failed and refused to provide the Union with the necessary
information requested in the Union’s letters of June 28, July 14 and July 20, 2006, it must
promptly supply that information.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended15
ORDER
The Respondent, Lincoln Educational Services-Mahwah, Mahwah, New Jersey, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Changing the carrier providing health insurance, and changing the health insurance
plans available to unit employees and the monetary contributions of unit employees toward their
insurance coverage without notice to the Union and an opportunity to bargain.
(b) Assigning supervisors to perform unit work without notice to the Union and an
opportunity to bargain.
(c) Failing and refusing to provide information to the Union which is necessary for and
relevant to the Union’s performance of its duties as the representative of the unit.
(d) 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 which is necessary to effectuate the policies of
the Act.

15 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD(NY)-45-07
5
10
15
20
25
30
35
40
45
50
16
(a) On request of the Union restore the insurance furnished under the 2005 CIGNA plan
and rescind the changes in the health insurance plans available to employees and rescind the
changes in the monetary contributions of employees.
(b) Make employees whole for all increased costs to them for health insurance benefits
as described in the Remedy section of this Decision.
(c) Provide the information requested by the Union as described in the 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 designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay or costs due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at its facility in Mahwah, New
Jersey, copies of the attached notice marked “Appendix.”16 Copies of the notice, on forms
provided by the Regional Director for Region 22, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent 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 January 1, 2006.
(f) 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., October 19, 2007.
____________________
Eleanor MacDonald
Administrative Law Judge

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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)-45-07
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 change your health insurance carrier or the plans available to you or change your monetary
contributions without notice to and bargaining with NJSFT Local 6308, AFT/AFL-CIO.
WE WILL NOT assign supervisors to teach entire courses without notice to the Union and an opportunity to bargain.
WE WILL NOT fail and refuse to provide information to the Union which is necessary for and relevant to the union
performance of its duties as the representative of the bargaining unit employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request of the Union, restore the insurance furnished under the 2005 CIGNA plan, rescind the changes
in plans available to you and rescind the changes in your contributions.
WE WILL make employees whole for all increased costs to them for health insurance benefits as described in the
Remedy section of this Decision.
WE WILL provide the information requested by the Union.
LINCOLN EDUCATIONAL SERVICES-MAHWAH
(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.
20 Washington Place, 5th Floor
Newark, New Jersey 07102-3110
Hours: 8:30 a.m. to 5 p.m.
973-645-2100.
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, 973-645-3784.