New York State Nurses Association (Fresenius Medical Center) (29-CB-188219)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

DATE:

August 31, 2017

TO:

Kathy Drew King, Regional Director

Region 29

FROM:

Jayme L. Sophir, Associate General Counsel

Division of Advice

SUBJECT: Fresenius Medical Center and

New York State Nurses Association

Cases 29-CA-186891, 29-CB-188219,

29-CA-193831

524-3350-9400

524-5084-3300

524-6740-5000

530-4075

530-4090-7500

530-6067-4000

The Region submitted this case for advice as to whether the Employer violated

Section 8(a)(5) of the Act by refusing to recognize the Union or apply the existing

terms and conditions of employment to its DeGraw facility, whether the Employer

violated Section 8(a)(3) by failing to recall or transfer unit employees to the DeGraw

facility, and whether the Union violated Section 8(b)(1)(A), (2), or (3) by bargaining in

bad faith and seeking to impose itself as the exclusive bargaining representative of

the employees at the DeGraw facility.

We conclude initially that the Employer’s operations at its DeGraw facility are

covered by the scope of the established bargaining unit, and that the Employer has

therefore violated Section 8(a)(5) by withdrawing recognition from the Union with

respect to that facility and by unilaterally changing the terms and conditions of

employment for unit employees. The scope of the established bargaining unit is

defined by the performance of registered professional nursing duties in connection

with the existing operations of the Employer’s “ABC” facilities, regardless of the

ultimate location of those operations. The DeGraw facility constitutes a continuation

of those existing operations, rather than a “new” facility or an expansion of the

Employer’s operations, and thus covered employees at the DeGraw facility are part of

the established unit.

We further conclude that the Employer has violated Section 8(a)(3) by failing to

recall or transfer unit employees to the DeGraw facility

those operations. The DeGraw facility constitutes a continuation

of those existing operations, rather than a “new” facility or an expansion of the

Employer’s operations, and thus covered employees at the DeGraw facility are part of

the established unit.

We further conclude that the Employer has violated Section 8(a)(3) by failing to

recall or transfer unit employees to the DeGraw facility. We find that the Employer’s

change in position and its deliberate decision not to ultimately recall or transfer

experienced unit nurses to vacancies at the DeGraw facility was motivated, at least in

part, by a desire to undermine the majority status of the Union at the new facility in

order to withdraw recognition from the Union. The Employer has failed to rebut such

finding of a discriminatory motive, and indeed the Employer’s explanations for its

Cases 29-CA-186891, et al.

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decision not to recall or transfer unit employees, despite its previous plans to do so,

are pretextual and further reinforce our finding of a violation.

Finally, and as a result of our findings above, we conclude that the Union did not

violate Section 8(b)(1)(A), (2), or (3) when it lawfully attempted to enforce the

established scope of the bargaining unit and to contest the Employer’s unlawful

withdrawal of recognition at the DeGraw facility. The Region should therefore issue

complaint regarding the aforementioned violations by the Employer, absent

settlement, and dismiss the remaining charges against the Union.

FACTS

Fresenius Medical Center, d/b/a New York Dialysis Services, Inc. (“the

Employer”) operates dialysis facilities in Brooklyn, New York, and throughout New

York State. The New York State Nurses Association (“the Union”) represents the

registered professional nurses working at several of the Employer’s facilities. The

Union represents employees at the Employer’s facilities in four separate bargaining

units, including what is known as the “ABC” unit

vices, Inc. (“the

Employer”) operates dialysis facilities in Brooklyn, New York, and throughout New

York State. The New York State Nurses Association (“the Union”) represents the

registered professional nurses working at several of the Employer’s facilities. The

Union represents employees at the Employer’s facilities in four separate bargaining

units, including what is known as the “ABC” unit. As of 2014, the “ABC” unit covered

the operations of four Brooklyn dialysis facilities in geographic proximity: the Atlantic

Hemodialysis Center (“AHC”), the Atlantic Peritoneal and Home Dialysis Training

Center (“APD”), the Brooklyn Kidney Center (“BKC”), and Atlantic Hemodialysis at

Cobble Hill (“Cobble Hill”). At that time, the “ABC” unit included approximately 34

nurses, including 17 nurses at the AHC facility and 10 nurses at the BKC facility. The

Employer’s operations across the four “ABC” facilities had a capacity of 55 dialysis

chairs, including 28 chairs at the AHC facility and 22 chairs at the BKC facility.

The dialysis operations of what is now the “ABC” unit were previously controlled

by a single predecessor employer, the Long Island College Hospital (“LICH”), or its

intermediaries, and the Union has represented employees performing registered

professional nursing duties in connection with the “ABC” operations for decades.

From 1999 to 2003, the Union was party to at least two successive collective-

bargaining agreements with a group of medical doctors controlling the provision of

dialysis services at LICH under the name of AFMSM/CASPI. Those agreements

contained a scope provision stating, in relevant part:

This agreement covers all of the employees in the bargaining unit

consisting of all full-time, regular part-time and per diem registered

professional nurses and persons authorized by permit to practice as

registered professional nurses including staff nurses, assistant nursing

care coordinators, utilization review coordinators and community health

coordinators. . .

ting, in relevant part:

This agreement covers all of the employees in the bargaining unit

consisting of all full-time, regular part-time and per diem registered

professional nurses and persons authorized by permit to practice as

registered professional nurses including staff nurses, assistant nursing

care coordinators, utilization review coordinators and community health

coordinators. . . .

It is agreed that this contract shall apply and continue in full force and

effect at any location to which the Employer may move. It is further

Cases 29-CA-186891, et al.

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agreed that this contract shall apply to any new or additional facilities of

the Employer and under its principal direction and control within the

five (5) boroughs of New York City, Nassau, Suffolk and Westchester

counties.

The Union has bargained directly with the Employer for over a decade, and the

Union and the Employer were party to a 2003-2006 collective-bargaining agreement

containing a scope provision substantially similar to the language in the predecessor

contracts with AFMSM/CASPI. The 2003-2006 scope provision stated, in part:

This agreement covers all of the employees in the bargaining unit

consisting of all full-time, regular part-time, temporary and per diem

registered professional nurses and persons authorized by permit to

practice as registered professional nurses including staff nurses,

assistant nursing care coordinators, assistant head nurses and all others

employed to perform registered professional nursing duties. Non-

bargaining unit personnel shall not routinely perform clinical nursing

duties normally performed by members of the bargaining unit. . . .

It is agreed that this contract shall apply and continue in full force and

effect at any location to which the Employer may move

ursing care coordinators, assistant head nurses and all others

employed to perform registered professional nursing duties. Non-

bargaining unit personnel shall not routinely perform clinical nursing

duties normally performed by members of the bargaining unit. . . .

It is agreed that this contract shall apply and continue in full force and

effect at any location to which the Employer may move. It is further

agreed that this contract shall apply to any new or additional facilities of

the Employer and under its principal direction and control within the

five (5) boroughs of New York City, Nassau, Suffolk and Westchester

counties.

Between 2006 and 2007, the Union and the Employer negotiated new collective-

bargaining agreements for all four units represented by the Union, and at the

Employer’s request each separate unit maintained its own individual contract. In

November 2006, the Employer included a note in its bargaining proposal regarding

the existing scope provision, which stated: “Delete applicability of agreement to new

operations established by employer (as opposed to relocation) for all CBAs.” Over the

following year, the parties negotiated over the precise wording of the “new or

additional facilities” clause and modified the geographic limitation to instead include

a limitation to new or additional facilities “under the same facility operating

certificate.” The Union’s lead negotiator at the time states that the Employer did not

object to the separate clause governing the relocation of existing operations.

As early as 2013, the Employer began planning the closures of the AHC and BKC

facilities in order to transfer their operations to a new facility to be opened at 595

DeGraw Street (“the DeGraw facility”). The Employer filed an initial application with

the New York State Department of Health in which the Employer explained that it

rate clause governing the relocation of existing operations.

As early as 2013, the Employer began planning the closures of the AHC and BKC

facilities in order to transfer their operations to a new facility to be opened at 595

DeGraw Street (“the DeGraw facility”). The Employer filed an initial application with

the New York State Department of Health in which the Employer explained that it

Cases 29-CA-186891, et al.

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would merely be moving the existing operations to the DeGraw facility.1 The DeGraw

facility was designed to have a 50-chair capacity to replace the 50 dialysis chairs at

the AHC and BKC facilities.

In May 2014, the Employer informed the Union that the AHC facility would be

shutting down operations due to the closure of the larger healthcare facility where it

was located, and that unit employees from the AHC facility would be transferred to

the DeGraw facility once it opened. The Employer and the Union jointly contacted

affected employees to inform them of their eligibility for temporary placement or a

layoff until the opening of the DeGraw facility. In June 2014, the Employer and the

Union negotiated a written closure agreement for the AHC facility. The closure

agreement provided for the creation of new evening-shift positions at other facilities,

including outside the “ABC” unit, which were “intended to be temporary” pending the

opening of the DeGraw facility. The agreement also provided for voluntary layoffs in

which employees would receive severance payments and would retain contractual

recall rights for up to 12 months.

On June 30, 2014, the parties’ most recent collective-bargaining agreement

expired

ions at other facilities,

including outside the “ABC” unit, which were “intended to be temporary” pending the

opening of the DeGraw facility. The agreement also provided for voluntary layoffs in

which employees would receive severance payments and would retain contractual

recall rights for up to 12 months.

On June 30, 2014, the parties’ most recent collective-bargaining agreement

expired. It had included a recognition provision in which the Employer, on behalf of

the “ABC” facilities, recognized the Union “as the exclusive collective bargaining

representative of every employee covered by this agreement.” The unit scope

provisions of the agreement were consistent with the previous agreement, stating, in

relevant part:

This agreement covers all regular full-time, regular part-time, per diem

and temporary employees licensed or otherwise lawfully entitled to

practice as registered professional nurses, including staff nurses,

assistant head nurses, assistant nursing care coordinators, and/or nurse-

in-charge, employed by the Employer to perform registered professional

nursing duties. . . .

1 The Employer initially filed a “limited review” application. The application process

involves filing a certificate of need with the New York State Department of Health.

There are three levels of review. “Full review” is required for actions such as

establishing a new healthcare facility or requesting a change of ownership, and it

entails a public hearing process and approval by an administrative body.

“Administrative review” is required for actions such as relocating extension clinics

with the addition of services, and it does not involve public hearings or approval by

the designated administrative body. “Limited review” is required for actions such as

minor alterations or the relocation of extension clinics without the addition of

services, and it also does not involve public hearing or formal administrative

approval.

the addition of services, and it does not involve public hearings or approval by

the designated administrative body. “Limited review” is required for actions such as

minor alterations or the relocation of extension clinics without the addition of

services, and it also does not involve public hearing or formal administrative

approval.

Cases 29-CA-186891, et al.

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Non-bargaining unit persons shall not routinely perform clinical duties

normally performed by members of the bargaining unit. . . .

It is agreed that this Agreement shall apply and continue in full force

and effect at any other location(s) to which the Employer may move the

existing operations of the subject dialysis facilities, and it is further

agreed that the Agreement shall apply to any new or additional facilities

of the employer under the same facility operating certificate.

Article 4 of the agreement had included definitions for “regular full-time,” “regular

part-time,” “per diem” and “temporary” employee status based on hours worked.

Shortly after the contract expired, the Employer and the Union commenced

negotiations for a successor contract. In July, counsel for the Employer informed the

Union that the Employer planned to eventually close the Cobble Hill facility and to

transfer its operations to the DeGraw facility. The eventual closure of the Cobble Hill

facility was also reflected in the terms of the AHC closure agreement.2 During a

September 2014 bargaining session, the Employer’s lead negotiator at the time

explained that a proposal to eliminate the “new or additional facility” clause in the

expired contract “did not apply to the DeGraw facility as [the Employer] planned to

move and relocate the ABC facilities into DeGraw.” In November 2014, the Employer

reiterated that it planned to staff the DeGraw facility with Union-represented

employees covered by the “ABC” contract

d negotiator at the time

explained that a proposal to eliminate the “new or additional facility” clause in the

expired contract “did not apply to the DeGraw facility as [the Employer] planned to

move and relocate the ABC facilities into DeGraw.” In November 2014, the Employer

reiterated that it planned to staff the DeGraw facility with Union-represented

employees covered by the “ABC” contract.

At a December 2014 bargaining session, according to the Employer’s lead

negotiator, the Employer’s Vice President of Operations clarified to the Union that the

Employer “was not expanding with the opening of DeGraw, but, rather, it was

planning to move existing facilities and operations from the ABC facilities to

DeGraw.” In the same month, the Employer’s Vice President for Strategic

Development similarly informed the Union of the Employer’s intentions to relocate

the 50 dialysis chairs at the AHC and BKC facilities to the 50-chair DeGraw facility.

The Employer continued to reiterate that its “goal was to combine the ABC facilities

. . . at the DeGraw facility” in bargaining sessions through at least September 2015.

Later in December, the Employer and the Union telephoned every nurse covered by

the expired “ABC” contract based on seniority date, including those recently laidoff

from the AHC facility in June, and solicited their choice of shift at the DeGraw

facility. The “DeGraw Clinic Call Order” showed that most of the nurses contacted

had accrued decades of seniority working as nurses at the “ABC” facilities. The record

of those calls suggests that two laidoff nurses indicated that they were not interested

2 As of 2017, the Employer has since revised its plans and states that it intends to

keep open the Cobble Hill facility and a small operation at the APD facility.

d accrued decades of seniority working as nurses at the “ABC” facilities. The record

of those calls suggests that two laidoff nurses indicated that they were not interested

2 As of 2017, the Employer has since revised its plans and states that it intends to

keep open the Cobble Hill facility and a small operation at the APD facility.

Cases 29-CA-186891, et al.

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in returning, two nurses placed in evening shifts outside the “ABC” unit indicated a

desire to stay in those positions, and at least 22 of the remaining nurses confirmed

their desire to either help open the DeGraw facility or be transferred there when the

BKC and Cobble Hill facilities closed.

Due to the termination of its lease, the Employer closed the BKC facility in July

2015. As a result, 11 employees were laidoff and several others were transferred to

temporary placements at other facilities—the last bargaining-unit employees were

laidoff in mid-August 2015. The Employer and the Union negotiated another written

closure agreement, which provided for the creation of one evening-shift “floater”

position at other facilities, as well as for layoff procedures. Under the terms of the

agreement, the BKC employees would retain contractual recall rights to the Cobble

Hill facility or the soon-to-be-opened DeGraw facility for up to 12 months. At the time,

the Employer’s Director of Operations estimated that the DeGraw facility would be

open by November 2015. Employees at BKC were laidoff based on seniority between

July and mid-August 2015. Several months later, in November 2015, the opening of

DeGraw remained delayed and the Employer laidoff two full-time nurses at the APD

facility. In discussions with the Union, the Employer maintained that the APD work

would also eventually be relocated to the DeGraw facility.

Throughout this period, the Employer and the Union continued bargaining over a

successor collective-bargaining agreement for the “ABC” unit

ovember 2015, the opening of

DeGraw remained delayed and the Employer laidoff two full-time nurses at the APD

facility. In discussions with the Union, the Employer maintained that the APD work

would also eventually be relocated to the DeGraw facility.

Throughout this period, the Employer and the Union continued bargaining over a

successor collective-bargaining agreement for the “ABC” unit. In early 2016, the

Employer began asserting that it was necessary to drastically cut employee health

and pension benefits when the DeGraw facility opened. Around the same time,

according to the Employer’s lead negotiator at the time, the Union indicated that

maintaining the existing health and pension benefits was one of its priorities or

“absolutes.” In March 2016, the Employer put forward a bargaining proposal that did

not specifically refer to DeGraw, but which included a proposed modification of the

existing scope provision such that if the Employer moved its existing operations to

another location, the contract would “be modified to include the provision of health

(including, medical, dental, vision, life and disability) and retirement benefits

pursuant to the Employer’s existing health and retirement plans for non-bargaining

unit employees, in lieu of the NYSNA Benefits Fund and NYSNA Pension Plan

benefits.” The Union objected that such modification would result in a substantial loss

of benefits for employees transferred to the DeGraw facility once it opened. According

to the Employer’s

, who was present, the Employer made no

response to the Union’s objections regarding DeGraw during the bargaining session.

The following month, April 2016, the Employer put forward a revised two-option

bargaining proposal. The first option substantially maintained the employees’ existing

benefits, but proposed, in relevant part, to alter the scope provision to remove the

reference to “new or additional facilities,” and also included the following note:

bjections regarding DeGraw during the bargaining session.

The following month, April 2016, the Employer put forward a revised two-option

bargaining proposal. The first option substantially maintained the employees’ existing

benefits, but proposed, in relevant part, to alter the scope provision to remove the

reference to “new or additional facilities,” and also included the following note:

(b) (6), (b) (7)(C)

Cases 29-CA-186891, et al.

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Note: In the event that the Company opens the DeGraw facility, it will

not involve a move of any existing operations nor open under the same

facility operating certificate of an existing or former dialysis facility . . .

so the terms of the collective bargaining agreements of the existing and

former dialysis facilities shall not apply at the DeGraw facility.

The Employer’s bargaining proposal stated that if the Union did not agree to the

complete “package” of proposals set forth in the first option, then the Employer would

revert to its position as set forth in the second option. The second option made no

reference to the scope provision or to DeGraw, but included substantial cuts in

employee benefits. During the April 25 bargaining session, the Employer also told the

Union for the first time that DeGraw would be opening as a “new facility” and that

“DeGraw would no longer involve a move of any of the existing ABC operations so the

terms of the NYSNA contracts would not apply at DeGraw.” The Union interpreted

this two-option proposal as offering it the choice of either maintaining benefits but

agreeing that DeGraw was outside the unit, or keeping DeGraw in the unit but

agreeing to cuts in benefits.

In late May 2016, the Employer contacted the New York State Department of

Health and requested to reclassify its licensing application from a relocation of

existing facilities to the creation of a new “extension” facility

al as offering it the choice of either maintaining benefits but

agreeing that DeGraw was outside the unit, or keeping DeGraw in the unit but

agreeing to cuts in benefits.

In late May 2016, the Employer contacted the New York State Department of

Health and requested to reclassify its licensing application from a relocation of

existing facilities to the creation of a new “extension” facility. The Employer was

instructed to undertake a different form of lower-level review, “administrative review”

rather than “limited review,” which included filing a two-page certificate of need and

several other documents, but which did not involve the more thorough agency review

required for new healthcare facilities.

In a letter to the Employer dated June 3, 2016, the Union objected to the

Employer’s assertions that the DeGraw facility would no longer be part of the

bargaining unit, noting that such assertion “was inconsistent with our bargaining

history and with our long-held understanding.” In a responsive letter dated June 16,

2016, counsel for the Employer acknowledged that, “[w]hen negotiations commenced

in May 2014, as well as for a time thereafter, NYDS initially expressed an intention to

recognize NYSNA as the bargaining representative of the DeGraw RN employees

since it was then NYDS’ expectation to open DeGraw as a clinic to which it would

transfer its patients and staff from [AHC, APD, and BKC], all of which operations it

had intended to shut down.” The Employer then claimed, however, that

“circumstances have drastically changed in the past two years regarding the opening

of the DeGraw facility” (emphasis in original). In particular, the Employer cited the

fact that the opening had been delayed for two years, that no AHC or BKC patients

were expected to be transferred, and that no remaining AHC or BKC equipment

would be transferred

own.” The Employer then claimed, however, that

“circumstances have drastically changed in the past two years regarding the opening

of the DeGraw facility” (emphasis in original). In particular, the Employer cited the

fact that the opening had been delayed for two years, that no AHC or BKC patients

were expected to be transferred, and that no remaining AHC or BKC equipment

would be transferred. Based on those factors, the Employer stated that DeGraw was a

“new facility, unrelated to any current or former ABC facility.” The Employer also

stated in the letter that it would be an unfair labor practice for it to recognize the

Union at DeGraw.

Cases 29-CA-186891, et al.

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The Employer began hiring for vacancies at the DeGraw facility in October 2016

through open job postings. The Employer did not specifically advertise such postings

at the remaining Union-represented facilities. The DeGraw facility opened on

October 31, 2016, and as of early 2017 it employed four unrepresented employees

performing registered professional nursing duties. The facility has a 50-chair

capacity, as initially planned, and the Employer intends to gradually increase

operations over time. Meanwhile, the Cobble Hill and APD facilities have remained

open with a staff of at least six nurses represented by the Union.

ACTION

We conclude initially that the DeGraw facility remains part of the established

bargaining unit, and that the Employer has therefore violated Section 8(a)(5) by

withdrawing recognition from the Union with respect to that facility, and by

unilaterally changing the terms and conditions of employment for unit employees.3

We further conclude that the Employer’s decision not to ultimately recall or transfer

unit employees to the DeGraw facility, as it had previously planned to do, was

motivated in whole or in part by a discriminatory desire to withdraw recognition from

the Union

from the Union with respect to that facility, and by

unilaterally changing the terms and conditions of employment for unit employees.3

We further conclude that the Employer’s decision not to ultimately recall or transfer

unit employees to the DeGraw facility, as it had previously planned to do, was

motivated in whole or in part by a discriminatory desire to withdraw recognition from

the Union. Thus, the Region should issue complaint, absent settlement, alleging that

the Employer violated Section 8(a)(5) and (3). Finally, we conclude that the charges

against the Union should be dismissed, absent withdrawal, insofar as the Union was

lawfully attempting to enforce the scope of the established bargaining unit and to

contest the Employer’s unlawful withdrawal of recognition.

A. The Employer Violated Section 8(a)(5) by Withdrawing Recognition and

Unilaterally Changing Employees’ Terms and Conditions of Employment

It is well established that the “fundamental purpose” of the Act is to “foster and

maintain stability in bargaining relationships.”4 Once a bargaining unit has been

3 We find it unnecessary to determine whether the Employer separately violated

Section 8(a)(5) by presenting regressive bargaining proposals in mid-2016, because

the remedy for such a violation would be duplicative in light of the Section 8(a)(5)

violations discussed in this memorandum.

4 Midland Electrical Contracting Corp., 365 NLRB No. 87, slip op. at 2 (June 6, 2017);

see Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 38-39 (1987) (“The

overriding policy of the NLRA is to promote ‘industrial peace’ . . . [by permitting]

unions to develop stable bargaining relationships with employers . . . .”); Colgate-

Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362 (1949) (“To achieve stability of labor

r Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 38-39 (1987) (“The

overriding policy of the NLRA is to promote ‘industrial peace’ . . . [by permitting]

unions to develop stable bargaining relationships with employers . . . .”); Colgate-

Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362 (1949) (“To achieve stability of labor

Cases 29-CA-186891, et al.

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established, “the statutory goal of ‘encouraging the practice and procedure of

collective bargaining’ requires adherence to that unit, absent mutual agreement by

the parties to change it.”5 This is particularly true where the definition of the

bargaining unit “is one that [the parties] voluntarily agreed to and have incorporated

in successive collective-bargaining agreements,”6 and regardless of whether the unit

scope was previously certified by the Board.7 As a result, an employer violates

Section 8(a)(5) and (1) by refusing to recognize a union as the exclusive bargaining

representative of employees in an established unit, and by unilaterally changing unit

employees’ terms and conditions of employment.8

In the context of an unfair-labor-practice proceeding, the Board has the

responsibility to determine the scope of the bargaining unit insofar as necessary to

evaluate whether the employer has, in fact, violated the Act.9 Where a bargaining

unit is defined by the work performed, rather than by job classifications at a specific

location, “it is necessarily that scope which is central to the Board’s analysis.”10 As set

relations was the primary objective of Congress in enacting the National Labor

Relations Act.”).

5 The Sun, 329 NLRB 854, 860 (1999) (quoting 29 U.S.C. § 151); see id. (quoting

NLRB v. United Technologies Corp., 884 F.2d 1569, 1572 (2d Cir. 1989)); see also

Boise Cascade Corp. v. NLRB, 860 F.2d 471, 474-75 (D.C. Cir. 1988).

6 The Sun, 329 NLRB at 860.

7 Ready Mix USA, Inc., 340 NLRB 946, 947 & n.10 (2003)

imary objective of Congress in enacting the National Labor

Relations Act.”).

5 The Sun, 329 NLRB 854, 860 (1999) (quoting 29 U.S.C. § 151); see id. (quoting

NLRB v. United Technologies Corp., 884 F.2d 1569, 1572 (2d Cir. 1989)); see also

Boise Cascade Corp. v. NLRB, 860 F.2d 471, 474-75 (D.C. Cir. 1988).

6 The Sun, 329 NLRB at 860.

7 Ready Mix USA, Inc., 340 NLRB 946, 947 & n.10 (2003).

8 Golden State Warriors, 334 NLRB 651, 652-54 (2001), enforced, 50 F. App’x 3 (D.C.

Cir. 2002); Westinghouse Electric Corp., 238 NLRB 763, 764 (1978) (finding that

employer violated Act by refusing to bargain with union at single plant that was part

of established multiplant unit), enforced mem., 618 F.2d 102 (4th Cir. 1980); cf. The

Idaho Statesman, 281 NLRB 272, 276 & n.8 (1986), enforced, 836 F.2d 1396 (D.C. Cir.

1988).

9 E.g., Bay Shipbuilding Corp., 263 NLRB 1133 (1982) (finding that the employer,

“having chosen to resolve the matter by itself, rather than by filing a ‘UC’ petition, is

now in a position where it has violated the Act if it took an erroneous view”), enforced,

721 F.2d 187, 191 (7th Cir. 1983); see The Sun, 329 NLRB at 859.

10 The Sun, 329 NLRB at 857; cf. Archer Daniels Midland Co., 333 NLRB 673, 673

n.2, 675 (2001) (contrasting units defined by the work performed with units

“described by employees in . . . general job classifications . . . who work at a specific

location or address”). We note that the framework established by the Board in The

e Sun, 329 NLRB at 857; cf. Archer Daniels Midland Co., 333 NLRB 673, 673

n.2, 675 (2001) (contrasting units defined by the work performed with units

“described by employees in . . . general job classifications . . . who work at a specific

location or address”). We note that the framework established by the Board in The

Cases 29-CA-186891, et al.

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out below, the relevant contract language and the parties’ bargaining history firmly

establish that the scope of the unit in the current case includes those employees

performing registered professional nursing duties as part of the Employer’s multi-

facility “ABC” operations. In addition, the DeGraw facility remains part of the

original “ABC” operations and the employees performing registered professional

nursing duties at that facility remain in the established bargaining unit. Finally, the

Employer’s attempt to characterize the DeGraw facility as outside the bargaining unit

is unavailing.

1.

The bargaining unit includes all employees performing registered

professional nursing duties in connection with the Employer’s

multi-facility “ABC” operations

Here, we find that the scope of the established bargaining unit is defined as

including all employees performing registered professional nursing duties in

connection with the work of the former “ABC” facilities, regardless of the actual

location of that work

all employees performing registered

professional nursing duties in connection with the Employer’s

multi-facility “ABC” operations

Here, we find that the scope of the established bargaining unit is defined as

including all employees performing registered professional nursing duties in

connection with the work of the former “ABC” facilities, regardless of the actual

location of that work. We begin with the scope and recognition provisions of the

parties’ most recently expired contract, the latter of which states that the Employer,

on behalf of the “ABC” facilities, recognizes the Union “as the exclusive bargaining

representative of every employee covered by this agreement.” In turn, the scope

provision states that the agreement covers all employees “employed by the Employer

to perform registered professional nursing duties.”11 The scope provision further

states that the agreement shall apply “at any other location(s) to which the Employer

may move the existing operations of the subject dialysis facilities.” The plain language

of the expired collective-bargaining agreement therefore defines the scope of the

bargaining unit as including any employee hired to perform nursing duties at the

former “ABC” facilities or “any other location(s)” to which the existing operations of

those facilities are moved.

Sun, to determine whether non-unit employees who have been assigned unit work

should be included in a bargaining unit that is defined by the type of work performed,

is not at issue here. This case involves the Employer’s decision to move existing jobs

to a different facility, not its creation of new job classifications and the assignment of

work to those employees. 329 NLRB at 857, 859. See Tarmac America, Inc., 342

NLRB 1049, 1050 n.5 (2004).

11 The references in the scope provision to “regular full-time, regular part-time, per

diem and temporary employees” are not job classifications, but contractual terms

defined in article 4 of the parties’ agreement

cility, not its creation of new job classifications and the assignment of

work to those employees. 329 NLRB at 857, 859. See Tarmac America, Inc., 342

NLRB 1049, 1050 n.5 (2004).

11 The references in the scope provision to “regular full-time, regular part-time, per

diem and temporary employees” are not job classifications, but contractual terms

defined in article 4 of the parties’ agreement. Likewise, the reference to such

employees as “including” certain job titles is, at most, a nonexhaustive list of job

classifications that does not affect the overall definition of the unit’s scope.

Cases 29-CA-186891, et al.

- 11 -

Thus, prior to the Employer’s decision to close several facilities and move the

work to the planned DeGraw facility, the scope of the multi-facility unit was defined

by the performance of “registered professional nursing duties” in connection with a

specific subset of the Employer’s business. The Employer operates numerous

healthcare and dialysis facilities in the New York City area, and the “ABC” unit is one

of four distinct bargaining units involving nurses represented by the Union. The

separateness of the bargaining unit at issue in this case is a vestige of a time when

the dialysis operations at the several “ABC” facilities were controlled by a common

predecessor employer—historically, the Long Island College Hospital (“LICH”) or an

intermediary employer. The Employer subsequently succeeded LICH and its

intermediaries in operating the former LICH facilities, and has bargained directly

with the Union as exclusive representative of the “ABC” unit since at least 2004.

In making our determination as to the scope of the bargaining unit, we do not

need to rely solely on the terms of the most recent collective-bargaining agreement

ediary employer. The Employer subsequently succeeded LICH and its

intermediaries in operating the former LICH facilities, and has bargained directly

with the Union as exclusive representative of the “ABC” unit since at least 2004.

In making our determination as to the scope of the bargaining unit, we do not

need to rely solely on the terms of the most recent collective-bargaining agreement. To

the contrary, those terms are consistent with several decades of consistent bargaining

history, both with the Employer and the predecessor employers operating the former

“ABC” facilities in their various incarnations. For example, the 1998-2000 collective-

bargaining agreement between the Union and AFMSM/CASPI (a group of medical

doctors controlling the provision of dialysis services at LICH) included a scope

provision covering all employees authorized to practice as registered professional

nurses. Thus, the employees performing nursing duties at all of the former LICH

operations remained a single bargaining unit. The scope provision in the 1998-2000

agreement also contained a clause clarifying that the contract “shall apply and

continue in full force and effect at any location to which the Employer may move,” as

well as a separate “new or additional facilities” clause not at issue in this case for the

reasons discussed below. The 2000-2003 collective-bargaining agreement with

AFMSM/CASPI included identical language in relevant part. When the Employer

took over direct control of the operations of the four former LICH facilities, the

Employer and the Union negotiated a 2003-2006 collective-bargaining agreement for

the “ABC Sites” that maintained the same historical language in the scope provision.

Between 2006 and 2007, the parties negotiated new collective-bargaining

agreements for all four units represented by the Union, and at the Employer’s request

each separate unit maintained its own individual contract

ies, the

Employer and the Union negotiated a 2003-2006 collective-bargaining agreement for

the “ABC Sites” that maintained the same historical language in the scope provision.

Between 2006 and 2007, the parties negotiated new collective-bargaining

agreements for all four units represented by the Union, and at the Employer’s request

each separate unit maintained its own individual contract. In November 2006, the

Employer included a note in its bargaining proposal regarding the scope provision,

which stated: “Delete applicability of agreement to new operations established by

employer (as opposed to relocation) for all CBAs.” Over the following year, the parties

subsequently negotiated over the precise wording of the “new or additional facilities”

clause and its limitation to facilities “under the same facility operating certificate.”

However, as confirmed by the Union’s lead negotiator at the time, at no point did the

Employer contest the wording of the separate clause governing the relocation of

“existing operations” to other locations, which reflected the contractual language

going back to at least 1998.

Cases 29-CA-186891, et al.

- 12 -

Moreover, our determination of the scope of the relevant bargaining unit is

supported by the more recent bargaining history between the Employer and the

Union, up through the Employer’s sudden change in position in mid-2016 and its

assertion that the DeGraw facility would no longer be part of the unit. During

numerous bargaining sessions over a period of two years, from mid-2014 through mid-

2016, both parties acknowledged that employees would remain in the established

bargaining unit after the operations of the AHC and BKC facilities were consolidated

and moved to a different location

nge in position in mid-2016 and its

assertion that the DeGraw facility would no longer be part of the unit. During

numerous bargaining sessions over a period of two years, from mid-2014 through mid-

2016, both parties acknowledged that employees would remain in the established

bargaining unit after the operations of the AHC and BKC facilities were consolidated

and moved to a different location. In sum, we find that the relevant bargaining unit is

properly defined as covering all employees hired to perform registered professional

nursing duties in connection with the existing operations of the “ABC” facilities,

regardless of any subsequent move of those operations to different locations.

2.

The DeGraw facility remains part of the multi-facility “ABC”

operations and the employees performing registered professional

nursing duties there are in the established bargaining unit

We further find that the DeGraw facility constitutes a continuation of the

existing operations of the former “ABC” facilities, rather than a new or additional

facility, and that all employees hired to perform registered professional nursing duties

at the DeGraw facility are thus part of the established bargaining unit. The

overwhelming balance of the evidence demonstrates that for a period of years,

beginning in 2013 if not earlier, the express intention of the Employer was to open the

DeGraw facility in order to move the existing operations of the “ABC” facilities.

According to the Employer, it began constructing the DeGraw facility in order to

“move and consolidate its operations from the AHC, BKC, and [APD facilities] (and

potentially its operations at [Cobble Hill]).” Likewise, according to the Employer’s

Vice President for Strategic Development the DeGraw facility “was designed to be an

efficiently operating dialysis clinic with 50 chairs . .

ties.

According to the Employer, it began constructing the DeGraw facility in order to

“move and consolidate its operations from the AHC, BKC, and [APD facilities] (and

potentially its operations at [Cobble Hill]).” Likewise, according to the Employer’s

Vice President for Strategic Development the DeGraw facility “was designed to be an

efficiently operating dialysis clinic with 50 chairs . . . to replace the 50 chairs NYDS

has cumulatively at AHC (28 chairs) and BKC (22 chairs).” The Vice President for

Strategic Development was heavily involved in the project of “building and opening

DeGraw to relocate AHC and BKC.”

Such intention was also the premise of the parties’ bargaining over the issue from

the start. For example, during a September 2014 bargaining session, the Employer’s

lead negotiator at the time explained that a proposal to eliminate the “new or

additional facility” clause in the expired contract “did not apply to the DeGraw facility

as [the Employer] planned to move and relocate the ABC facilities into DeGraw.” Also

according to the Employer’s lead negotiator, at a December 2014 bargaining session

the Employer’s

clarified to the Union that the Employer

“was not expanding with the opening of DeGraw, but, rather, it was planning to move

existing facilities and operations from the ABC facilities to DeGraw.” In December

2014, the Employer’s

similarly informed the

Union of the Employer’s intentions to relocate the 50 dialysis chairs at the AHC and

(b) (6), (b) (7)(C)

bargaining session

the Employer’s

clarified to the Union that the Employer

“was not expanding with the opening of DeGraw, but, rather, it was planning to move

existing facilities and operations from the ABC facilities to DeGraw.” In December

2014, the Employer’s

similarly informed the

Union of the Employer’s intentions to relocate the 50 dialysis chairs at the AHC and

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

Cases 29-CA-186891, et al.

- 13 -

BKC facilities to the 50-chair DeGraw facility. The Employer continued to reiterate

that its “goal was to combine the ABC facilities . . . at the DeGraw facility” in

bargaining sessions through at least September 2015. When the Union raised the

issue of the DeGraw facility during bargaining sessions as late as February and

March 2016, the Employer made no claim that its operations there would constitute a

“new” facility. Setting aside certain unforeseen delays in opening DeGraw and the

replacement of laidoff employees, in the end the Employer has simply moved existing

work from the “ABC” facilities to the DeGraw facility, as it had planned to do all

along. As a consequence, the Employer has violated Section 8(a)(5) and (1) by

withdrawing recognition from the Union with respect to the employees performing

that work, and by unilaterally changing their terms and conditions of employment.

In reaching the above conclusion, we note that this case does not involve a unit

“relocation” within the meaning of Board case law. Here, the existing work has not

left the historically established bargaining unit, which is a multi-facility unit defined

by the work performed, and thus the Board’s “relocation” lines of cases are inapposite.

In Westwood Import Co

and conditions of employment.

In reaching the above conclusion, we note that this case does not involve a unit

“relocation” within the meaning of Board case law. Here, the existing work has not

left the historically established bargaining unit, which is a multi-facility unit defined

by the work performed, and thus the Board’s “relocation” lines of cases are inapposite.

In Westwood Import Co. and Harte & Co., the Board held that when an entire unit

relocates to a new facility, a collective-bargaining agreement in effect at the old

facility will continue to apply and to create an irrebutable presumption of majority

status “if the operations at the new facility are substantially the same as those at the

old and if transferees from the old plant constitute a substantial percentage—

approximately 40 percent or more—of the new plant employee complement.”12

However, such analysis is unnecessary where the parties’ historical bargaining

relationship or the scope of the bargaining unit already contemplates the movement

of existing work to a new location.13 Moreover, the Westwood and Harte line of cases

12 Harte & Co., 278 NLRB 947, 948 (1986); see Westwood Import Co., 251 NLRB 1213,

1214 (1980), enforced, 681 F.2d 664 (9th Cir. 1982).

13 See Fairlawn Care Center, 233 NLRB 1025, 1025-26 (1977) (finding that employer

was obligated to bargain with union and apply terms of contract at relocated facility

where parties had agreed that contract would apply to relocation, and finding

alternative inquiry into majority-status of union unnecessary), enforced mem., 692

F.2d 764 (9th Cir

1980), enforced, 681 F.2d 664 (9th Cir. 1982).

13 See Fairlawn Care Center, 233 NLRB 1025, 1025-26 (1977) (finding that employer

was obligated to bargain with union and apply terms of contract at relocated facility

where parties had agreed that contract would apply to relocation, and finding

alternative inquiry into majority-status of union unnecessary), enforced mem., 692

F.2d 764 (9th Cir. 1982); see also Tarmac America, 342 NLRB at 1050 (finding that

employee performing bargaining unit work at new location set up by employer was

included in definition of existing unit scope and thus accretion or new-job-

classification analyses were unnecessary); Mining Specialists, Inc., 314 NLRB 268,

269 (1999)(finding that the parties’ collective-bargaining agreement continued to

apply at a relocated facility based on the terms of the agreement); Nave, Inc., 306

NLRB 926, 926 n.3, 931 (1992) (finding that work relocated to separate location

remained within scope of single bargaining unit and employer thus violated the Act

by withdrawing recognition and signing contract with a different union).

Cases 29-CA-186891, et al.

- 14 -

is equally inapplicable here insofar as the Employer has only moved one portion of the

established bargaining unit, while maintaining continuous operations at the Cobble

Hill and APD facilities.14 In short, the bargaining unit itself has not been

geographically relocated, and instead the Employer has merely shifted the location of

certain work within the contours of the established definition of the unit’s scope.

Similarly inapposite is Gitano Group, Inc

ed one portion of the

established bargaining unit, while maintaining continuous operations at the Cobble

Hill and APD facilities.14 In short, the bargaining unit itself has not been

geographically relocated, and instead the Employer has merely shifted the location of

certain work within the contours of the established definition of the unit’s scope.

Similarly inapposite is Gitano Group, Inc. and its progeny, in which the Board

held that when an established bargaining unit at a single facility is severed by the

partial relocation of work to a new facility, the Board will apply a rebuttable

presumption that the new facility is separate from the established unit.15 If such

presumption is not rebutted, the employer is not obligated to recognize the union at

the new facility absent a showing that a majority of employees at the new facility are

transferees.16 The Gitano line of cases turns on the Board’s presumption that single

facility units are appropriate, and therefore that “[a] new facility is a separate

appropriate unit,” even if such facility constitutes a partial relocation or spinoff of

work from an existing unit at another facility.17 In other words, Gitano and its

progeny are inapplicable where “there has been no creation of a [presumptive] second

14 Rock Bottom Stores, 312 NLRB 400, 402 (1993) (noting that the Westwood and

Harte analysis applies where an employer “relocates an entire bargaining unit to a

new facility”), enforced, 51 F.3d 366 (2d Cir. 1995); see United Steelworkers of

America, Local 7912, 338 NLRB 29, 29 n.1 (2002). To inquire into the percentage of

unit employees at the DeGraw facility alone would effectively rewrite the definition of

the scope of the existing unit

(noting that the Westwood and

Harte analysis applies where an employer “relocates an entire bargaining unit to a

new facility”), enforced, 51 F.3d 366 (2d Cir. 1995); see United Steelworkers of

America, Local 7912, 338 NLRB 29, 29 n.1 (2002). To inquire into the percentage of

unit employees at the DeGraw facility alone would effectively rewrite the definition of

the scope of the existing unit. Thus, even assuming that a Westwood and Harte

“relocation” analysis was proper here and that the transfer of the former AHC and

BKC operations to the DeGraw facility warranted a reassessment of the established

unit’s appropriateness, we note that the Union has at all relevant times represented a

majority of employees in the bargaining unit as a whole. The Cobble Hill and APD

facilities have remained in operation with at least six bargaining unit nurses

employed at those locations. When the DeGraw facility commenced operations

following the temporary cessation of the former AHC and BKC operations, the

Employer employed only four unrepresented nurses. See J.R. Simplot Co., 311 NLRB

572, 588 (1993) (measuring “substantial percentage” of workforce from the date that

the relocation process has been substantially concluded), enforced, 33 F.3d 58 (9th

Cir. 1994), cert. denied, 513 U.S. 1147 (1995).

15 Gitano Group, Inc., 308 NLRB 1172, 1175-76 (1992).

16 Id.

17 U.S. Tsubaki, Inc., 331 NLRB 327, 327 n.3 (2000).

2, 588 (1993) (measuring “substantial percentage” of workforce from the date that

the relocation process has been substantially concluded), enforced, 33 F.3d 58 (9th

Cir. 1994), cert. denied, 513 U.S. 1147 (1995).

15 Gitano Group, Inc., 308 NLRB 1172, 1175-76 (1992).

16 Id.

17 U.S. Tsubaki, Inc., 331 NLRB 327, 327 n.3 (2000).

Cases 29-CA-186891, et al.

- 15 -

bargaining unit.”18 In the present case, no work has been relocated outside of the

existing unit, as defined by the parties, and the existing unit has not been fractured

by the movement of work to the DeGraw facility. As previously discussed, the scope of

the unit includes all employees performing registered professional nursing duties in

connection with the operations of the former “ABC” facilities, regardless of the

location of those operations. Moreover, the unit is already established as a multi-

facility unit covering employees working in different locations. In both respects, the

Gitano presumption that a geographically-isolated “spinoff” group of employees

should constitute a separate appropriate unit is inappropriate. To apply such a

presumption here, where there has been no change in definition or relocation of work

outside of the established bargaining unit, and where unit employees already work in

multiple locations, would instead merely undermine the stability of the bargaining

relationship and subvert the policies of the Act.19

Finally, and contrary to the arguments raised by the Employer, we note that this

case does not involve a so-called “Kroger clause.”20 Even assuming, for the sake of

argument, that the second clause of the relevant sentence in the scope provision of the

parties’ expired contract—“. .

nstead merely undermine the stability of the bargaining

relationship and subvert the policies of the Act.19

Finally, and contrary to the arguments raised by the Employer, we note that this

case does not involve a so-called “Kroger clause.”20 Even assuming, for the sake of

argument, that the second clause of the relevant sentence in the scope provision of the

parties’ expired contract—“. . . and it is further agreed that the Agreement shall apply

to any new or additional facilities of the employer under the same facility operating

certificate”—would implicate the Board’s after-acquired stores doctrine, such clause is

not at issue here. The DeGraw facility is not a “new or additional” facility expanding

the Employer’s operations, but is instead a consolidation of the “existing operations”

of the former ABC facilities within the meaning of the first clause of the relevant

sentence—and, more significantly, within the meaning of the parties’ bargaining

history and the scope of the established bargaining unit. Employees performing

18 Rock Bottom Stores, 312 NLRB at 402; see Penn Enterprises, Inc., Case 17-CA-

071010, Advice Memorandum dated April 30, 2012, at 2 (characterizing Gitano as

being applicable to “cases involving a transaction that fractures a bargaining unit into

two facilities”); cf. Armco Steel Co., 312 NLRB 257, 259 (1993) (discussing

applicability of Gitano to unit-clarification cases, and noting that the purpose of the

Gitano presumption is to determine whether relocated employees should nonetheless

“remain a part of the unit from which they came,” or should constitute a different

appropriate unit at the new facility).

19 Moreover, the Board’s Gitano framework establishes a rebuttable presumption that

a new location will constitute a separate appropriate unit. 308 NLRB at 1175. Even

assuming that the Gitano framework was appropriate here, such presumption has

effectively been rebutted by the parties’ bargaining history and the established scope

of the unit

different

appropriate unit at the new facility).

19 Moreover, the Board’s Gitano framework establishes a rebuttable presumption that

a new location will constitute a separate appropriate unit. 308 NLRB at 1175. Even

assuming that the Gitano framework was appropriate here, such presumption has

effectively been rebutted by the parties’ bargaining history and the established scope

of the unit. See also note 14, supra, and cases cited.

20 See Kroger Co., 219 NLRB 388, 389 (1975).

Cases 29-CA-186891, et al.

- 16 -

registered professional nursing duties at the DeGraw facility are already part of the

established unit, and no new or additional work has been created.

For the foregoing reasons, we conclude that these alternate legal theories are not

applicable. Rather, the employees performing registered professional nursing duties

at the DeGraw facility are already covered by the established bargaining unit, and the

Employer has therefore violated Section 8(a)(5) and (1) by withdrawing recognition

from the Union and by unilaterally changing employees’ terms and conditions of

employment.

3.

The Employer’s attempt to characterize the DeGraw facility as

outside the bargaining unit is unavailing

In contrast to this extensive history regarding the status of the DeGraw facility

as a continuation of the existing operations, the Employer’s subsequent attempts in

mid-2016 to reclassify DeGraw as a “new” facility are uniformly unavailing. First, we

note that the unforeseen delay in the opening of the DeGraw facility did not change

the scope of the established unit or relieve the Employer of its statutory bargaining

obligations. It is clear that when the Employer closed the AHC and BKC facilities it

marked a temporary cessation of business rather than a decision to permanently shut

down

“new” facility are uniformly unavailing. First, we

note that the unforeseen delay in the opening of the DeGraw facility did not change

the scope of the established unit or relieve the Employer of its statutory bargaining

obligations. It is clear that when the Employer closed the AHC and BKC facilities it

marked a temporary cessation of business rather than a decision to permanently shut

down. The AHC and BKC facilities closed due to issues with the operative leases,

rather than business considerations, and the Employer was already engaged in the

construction of the DeGraw facility where the existing work would be moved and

consolidated. Moreover, the Cobble Hill and APD facilities remained open and thus

the Union continued to represent employees in the established bargaining unit.

Concurrently, the Employer and the Union were engaged in bargaining over a

successor contract for the “ABC” unit as a whole. On these facts, a one to two year

cessation of portions of the Employer’s business did not transform the DeGraw

facility, when it finally opened, into a “new” facility as opposed to a continuation of

the existing operations.21

21 Cf., e.g., Golden State Warriors, 334 NLRB at 653 (finding that one-year hiatus in

operations did not disrupt continuity of business or employer’s obligation to bargain

with union); Rockwood Energy & Mineral Corp., 299 NLRB 1136, 1139 & n.11 (1990)

(finding that five-year suspension of production did not relieve employer of its

bargaining obligation, where union remained active in bargaining over work covered

by unit, where at least one unit employee remained continuously employed, and

where there was an expectation of work eventually resuming), enforced, 942 F.2d 169

(3d Cir. 1991); Coastal Cargo Co., 286 NLRB 200, 203-04 (1987) (finding continuation

of existing business where employer ceased operations for one year before reopening

in new corporate form).

least one unit employee remained continuously employed, and

where there was an expectation of work eventually resuming), enforced, 942 F.2d 169

(3d Cir. 1991); Coastal Cargo Co., 286 NLRB 200, 203-04 (1987) (finding continuation

of existing business where employer ceased operations for one year before reopening

in new corporate form).

Cases 29-CA-186891, et al.

- 17 -

Second, the mere fact that the Employer ultimately modified its licensing

application to the New York State Department of Health is not controlling. The

applicable state statutes that regulate the provision of dialysis services serve an

entirely different purpose than the Act, which has the overriding purpose of ensuring

the stability of collective-bargaining relationships. Thus, even assuming that the

DeGraw facility was properly reclassified as “adding” dialysis services rather than

relocating existing dialysis services for state regulatory purposes, the Employer was

nonetheless continuing its existing business for purposes of federal labor law.

Moreover, we note that the Employer itself affirmatively requested to reclassify the

DeGraw facility—after making the decision to exclude the DeGraw facility from the

bargaining unit and informing the Union that it would not be covered—and that it

ultimately submitted a revised application that remained a form of lesser review. The

Employer submitted a two-page certificate of need for a new “extension” location, and

did not undergo the more extensive level of agency review reserved for the opening of

new healthcare facilities.22

Finally, we find it largely immaterial that the DeGraw facility ultimately opened

with new physical equipment and new patients

a revised application that remained a form of lesser review. The

Employer submitted a two-page certificate of need for a new “extension” location, and

did not undergo the more extensive level of agency review reserved for the opening of

new healthcare facilities.22

Finally, we find it largely immaterial that the DeGraw facility ultimately opened

with new physical equipment and new patients. With respect to the equipment, the

Employer does not suggest that its dialysis operations or the actual work performed

have significantly changed, or that the job duties of the nurses working at the

DeGraw facility are materially different from the nurses at the former “ABC”

facilities.23 Likewise, the identity of the specific patients who utilize the new facility

does not determine whether it is a continuation of the same operations as the

22 We also note, insofar as the parties’ expired collective-bargaining agreement

illuminates the scope of the bargaining unit, that the “new or additional facilities”

clause was tied to the Employer’s operating certificate, but the movement of “existing

operations” clause was not. Here, the Employer has plainly moved its existing

operations from the AHC and BKC facilities to the DeGraw facility.

23 Cf. International Paper Co., 150 NLRB 1252, 1259 (1965) (“The new equipment at

the north plant does not change the unit any more than new equipment replacing the

equipment at the south plant would have changed it.”). We also note that it appears

that the Employer’s intention was to open the DeGraw facility with new physical

equipment from the outset, or at least well before it began claiming that DeGraw

would be a “new” facility. When the AHC and BKC facilities closed in 2014 and 2015,

the Employer’s existing equipment was disposed of within 30 days, and yet during

bargaining the Employer continued to assure the Union that the DeGraw facility

would merely be a consolidation of the existing operations.

it began claiming that DeGraw

would be a “new” facility. When the AHC and BKC facilities closed in 2014 and 2015,

the Employer’s existing equipment was disposed of within 30 days, and yet during

bargaining the Employer continued to assure the Union that the DeGraw facility

would merely be a consolidation of the existing operations.

Cases 29-CA-186891, et al.

- 18 -

previous locations.24 That is particularly true here, where the Employer itself admits

that the turnover of dialysis patients is relatively frequent in the normal course of

business. Such factors do not negate the strong evidence—including the Employer’s

own express admissions—that the DeGraw facility was designed and intended to be a

continuation of the work performed at the former “ABC” facilities. The Employer had

an operational capacity of 50 chairs at the closed AHC and BKC facilities, and the

DeGraw facility has an identical 50-chair capacity to provide the exact same services

to patients.

Based on such evidence, and given the Employer’s failure to articulate a

difference in the work performed at the DeGraw facility from the work performed at

the closed AHC and BKC facilities, we conclude that the operations at the DeGraw

facility are a continuation of the existing operations of the former “ABC” facilities and

are thus within the scope of the established bargaining unit. Thus, by withdrawing

recognition from the Union at the DeGraw facility and by unilaterally changing the

terms and conditions of employment for bargaining-unit employees, the Employer has

violated Section 8(a)(5) of the Act.25

B. The Employer Violated Section 8(a)(3) by Discriminatorily Refusing to

Transfer or Recall Union-Represented Employees

The evidence in this case further indicates that the Employer independently

violated the Act by failing to recall or transfer unit employees to the DeGraw facility

as a result of their Union-represented status

the Employer has

violated Section 8(a)(5) of the Act.25

B. The Employer Violated Section 8(a)(3) by Discriminatorily Refusing to

Transfer or Recall Union-Represented Employees

The evidence in this case further indicates that the Employer independently

violated the Act by failing to recall or transfer unit employees to the DeGraw facility

as a result of their Union-represented status. In determining whether an employer’s

failure to recall employees constitutes a violation of the Act, the Board applies its

24 See Coastal Cargo, 286 NLRB at 203 (finding that employer had not commenced a

new operation after temporarily ceasing business before reopening with a new sole

customer).

25 In the alternative, we conclude that, even assuming that the DeGraw facility is

found to be outside the established bargaining unit, the Employer has violated

Section 8(a)(5) by unilaterally transferring bargaining-unit work outside of the unit.

See, e.g., Connecticut Color, Inc., 288 NLRB 699, 699 (1988). Although the parties

bargained over the closure of the AHC and BKC facilities, they did so on the premise

that the DeGraw facility would remain part of the unit. The Employer cannot

circumvent the Union by subsequently changing its position and asserting that the

relocated work is now at a “new” facility outside the unit, without first bargaining

with the Union over what would then be transformed into a permanent transfer of

bargaining-unit work. Here, no such bargaining occurred and the Employer presented

its unilateral decision as a fait accompli. Thus, the Employer violated the Act even

under its own claim—which we reject for the reasons discussed above—that the

DeGraw facility is outside the established unit.

e transformed into a permanent transfer of

bargaining-unit work. Here, no such bargaining occurred and the Employer presented

its unilateral decision as a fait accompli. Thus, the Employer violated the Act even

under its own claim—which we reject for the reasons discussed above—that the

DeGraw facility is outside the established unit.

Cases 29-CA-186891, et al.

- 19 -

traditional Wright Line framework.26 First, the General Counsel must show, by a

preponderance of the evidence, that the employees’ protected status was a motivating

factor in the employer’s adverse employment decision. The employer’s discriminatory

motive may be established by, among other things, the timing of the adverse action,

the presence of other unfair labor practices, and the employer’s reliance on pretextual

reasons for the adverse action.27 Once this initial showing has been made, the burden

of persuasion shifts to the employer to demonstrate that it would have taken the same

action even in the absence of the protected conduct.28 An employer cannot carry its

burden merely by showing that it had a legitimate reason for taking the action in

question; it must affirmatively show that the action would have taken place even

absent the employees’ protected status.29 The decision not to recall employees may

exhibit an unlawful discriminatory motive even if the initial layoff of such employees

was entirely legitimate.30 The Board applies the same analysis in evaluating an

employer’s failure to transfer employees.31

Here, we find that a preponderance of the evidence demonstrates that the

Employer’s decision not to transfer or recall bargaining-unit nurses to the vacant

positions at the DeGraw facility was motivated by their Union-represented status and

by a desire to withdraw recognition from the Union at that facility

ies the same analysis in evaluating an

employer’s failure to transfer employees.31

Here, we find that a preponderance of the evidence demonstrates that the

Employer’s decision not to transfer or recall bargaining-unit nurses to the vacant

positions at the DeGraw facility was motivated by their Union-represented status and

by a desire to withdraw recognition from the Union at that facility. The evidence

uniformly indicates that, beginning with the Employer’s first plans to construct the

DeGraw facility, its intention was to eventually transfer existing unit employees

when the new facility opened. This was the Employer’s consistent intention for

several years, and the basis for its bargaining with the Union. Thus, for example,

when the AHC and BKC facilities closed in 2014 and 2015 and employees were

laidoff, the parties negotiated written closure agreements that memorialized limited

recall rights to the DeGraw facility on the basis of seniority. The Employer also

26 E.g., Amptech, Inc., 342 NLRB 1131, 1133-34 (2004) (citing Wright Line, 251 NLRB

1083, 1089 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989

(1982)), enforced, 165 F. App’x 435 (6th Cir. 2006).

27 See, e.g., Lucky Cab Co., 360 NLRB 271, 273-74 (2014).

28 See id.

29 See North Carolina Prisoner Legal Services, 351 NLRB 464, 467-69 & n.17 (2007).

30 Daikichi Sushi, 335 NLRB 622, 625 (2001), enforced, 56 F. App’x 516 (D.C. Cir.

2003); Grinnell Corp., 320 NLRB 817, 831 (1996).

31 E.g., Cave Springs Theatre, 287 NLRB 4, 11 & n.27 (1987); Raymond Engineering,

Inc., 286 NLRB 1210, 1210-11 (1987).

29 See North Carolina Prisoner Legal Services, 351 NLRB 464, 467-69 & n.17 (2007).

30 Daikichi Sushi, 335 NLRB 622, 625 (2001), enforced, 56 F. App’x 516 (D.C. Cir.

2003); Grinnell Corp., 320 NLRB 817, 831 (1996).

31 E.g., Cave Springs Theatre, 287 NLRB 4, 11 & n.27 (1987); Raymond Engineering,

Inc., 286 NLRB 1210, 1210-11 (1987).

Cases 29-CA-186891, et al.

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transferred numerous employees to positions that were expressly intended to be

“temporary” pending the opening of the DeGraw facility. At the same time, the parties

were bargaining over a contract that would cover the DeGraw facility and the

Employer was acknowledging that it would be part of the existing bargaining unit.

In light of the foregoing context, we first find that the timing and apparent

impetus for the Employer’s sudden change in position supports an inference of a

discriminatory motive. After nearly two years of bargaining over a successor

contract—during which both parties acknowledged that the contract would apply to

the DeGraw facility and that unit employees would be transferred—in early 2016 the

Employer began asserting that it was necessary to drastically cut employee health

and pension benefits when the DeGraw facility opened. Around the same time in

early 2016, according to the Employer’s lead negotiator at the time, the Union

indicated that maintaining the existing health and pension benefits was one of its

priorities or “absolutes.” In March 2016, the Employer made a bargaining proposal

that included a clause modifying the existing scope provision such that when work

was moved to a different location, the employees that were moved would receive the

same health and pension benefits as non-union employees. Unsurprisingly, the Union

strongly objected that such proposal would drastically cut benefits for the employees

soon-to-be relocated to the DeGraw facility

rgaining proposal

that included a clause modifying the existing scope provision such that when work

was moved to a different location, the employees that were moved would receive the

same health and pension benefits as non-union employees. Unsurprisingly, the Union

strongly objected that such proposal would drastically cut benefits for the employees

soon-to-be relocated to the DeGraw facility.

Several weeks later, the Employer provided a two-option bargaining proposal,

one part of which included a “note” stating for the first time that the DeGraw facility

would “not involve a move of any existing operations” and would be outside the

bargaining unit. Such claim was a drastic reversal from the Employer’s consistent

course of conduct over a period of nearly two years, during which time the Employer

expressly intended to open the DeGraw facility as a continuation of the former AHC

and BKC facilities and to staff the DeGraw facility by recalling or transferring unit

nurses. In a June 2016 letter to the Union reiterating that the DeGraw facility would

now be a “new” location due to changed circumstances, the Employer identified no

factors that had changed from March 2016 to April 2016. To the contrary, it appears

that the only significant change from one bargaining session to the next was the

Employer’s bargaining dispute with the Union and the latter’s insistence on retaining

existing levels of benefits. Indeed, despite its own position only several weeks earlier,

in its letter to the Union the Employer even threatened that it would be an unfair

labor practice for it to recognize the Union at the DeGraw facility. On these facts, we

find that the timing of the Employer’s formalistic reclassification of DeGraw as a

“new” facility supports an inference of a discriminatory motive.32 Our finding is

32 KAG-West, LLC, 362 NLRB No. 121, slip op. at 2 & n.5 (June 16, 2015) (noting that

discriminatory motive can be inferred from indirect evidence including timing alone)

ognize the Union at the DeGraw facility. On these facts, we

find that the timing of the Employer’s formalistic reclassification of DeGraw as a

“new” facility supports an inference of a discriminatory motive.32 Our finding is

32 KAG-West, LLC, 362 NLRB No. 121, slip op. at 2 & n.5 (June 16, 2015) (noting that

discriminatory motive can be inferred from indirect evidence including timing alone).

Alongside the timing of the Employer’s decision, we note that an inference of animus

Cases 29-CA-186891, et al.

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further supported by the fact that the Employer relied on its own decision not to

transfer or recall former AHC and BKC employees to the DeGraw facility as one of its

primary justifications for asserting that DeGraw would no longer be part of the

unit.33

Moreover, it is well established that a finding of discriminatory motive may be

predicated on an employer’s pretextual explanation for its adverse personnel action.34

Here, the Employer’s asserted justifications for failing to recall or transfer

bargaining-unit employees to the DeGraw facility all constitute pretext, thus further

reinforcing our finding of a violation. For the reasons discussed previously in

connection with the Section 8(a)(5) violation, we have already found unavailing the

Employer’s claim that the DeGraw facility somehow became a “new” facility rather

than a continuation of the existing operations of the closed “ABC” facilities. Indeed,

we find that the Employer has offered a pretextual justification for its decision to

reclassify DeGraw as a “new” facility that would not be staffed by former unit

employees. In its June 2016 letter to the Union and in subsequent position

statements, the Employer relied on allegedly “changed” circumstances that were

already present well before the Employer’s first attempt to exclude the DeGraw

facility from the unit

r has offered a pretextual justification for its decision to

reclassify DeGraw as a “new” facility that would not be staffed by former unit

employees. In its June 2016 letter to the Union and in subsequent position

statements, the Employer relied on allegedly “changed” circumstances that were

already present well before the Employer’s first attempt to exclude the DeGraw

facility from the unit. The opening of the facility had already been delayed nearly two

years in March 2016, when the Employer proposed keeping it in the unit but cutting

relocated employees’ benefits. Similarly, the Employer had already disposed of its old

is supported by the Employer’s concurrent Section 8(a)(5) violations. See Circle City

Asphalt, LLC, 330 NLRB 282, 285 (1999) (finding that employer's premature

termination of agreement and efforts to disassociate itself from the union and become

a non-union employer were evidence of animus establishing a discriminatory failure

to recall a union supporter); see also Overnite Transp. Co., 335 NLRB 372, 375 (2001).

33 An inference of animus is also supported by the Employer’s failure to advertise

DeGraw job openings at the remaining Union-represented facilities, and is potentially

supported by the Employer’s decision in late May 2016 to contact the New York State

Department of Health in order to voluntarily reclassify its application for the opening

of the DeGraw facility as a new extension facility. As to the latter, we lack sufficient

information to determine whether the Employer’s request to reclassify the DeGraw

facility as a new extension location was legitimate. We note, however, that despite the

Employer’s assertions, it is unclear that mere patient turnover would require such a

reclassification. We also note that the Employer first stated that the DeGraw facility

would be a new location several weeks prior to any communications with the New

York State Department of Health regarding a revised application

ty as a new extension location was legitimate. We note, however, that despite the

Employer’s assertions, it is unclear that mere patient turnover would require such a

reclassification. We also note that the Employer first stated that the DeGraw facility

would be a new location several weeks prior to any communications with the New

York State Department of Health regarding a revised application.

34 Auto Nation, Inc., 360 NLRB 1298, 1303 & n.13 (2014), enforced, 801 F.3d 767 (7th

Cir. 2015); Lucky Cab, 360 NLRB at 274; Loudon Steel, Inc., 340 NLRB 307, 312

(2003).

Cases 29-CA-186891, et al.

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equipment from the AHC and BKC facilities, and patients had already begun

receiving services at other locations. We find that the Employer’s newfound reliance

on such factors, only weeks later, to be pretextual.

The Employer also relies on the fact that the employees’ recall rights in the AHC

and BKC closure agreements expired before the ultimate opening of the DeGraw

facility, stating that, since “no NYSNA bargaining unit members had recall rights to

DeGraw when it opened, there can be no credible argument NYDS had an unlawful

motive in not recalling laid off NYSNA employees.” However, the mere fact that the

employees no longer possessed contractual recall rights does not constitute an

explanation for the Employer’s deliberate failure to recall them, nor does it preclude a

finding of discriminatory motive.35 As noted above, we find that the Employer

violated Section 8(a)(3) not because it was contravening any contractual obligations,

but because its ultimate decision not to recall or transfer the affected employees was

motivated, at least in part, by a desire to undermine the status of the Union at the

DeGraw facility.36

As reflected in the December 2014 “DeGraw Clinic Call Order” provided by the

Union, the majority of the nurses who were laidoff or placed in temporary positions

had decades of experience working for the Emplo

use its ultimate decision not to recall or transfer the affected employees was

motivated, at least in part, by a desire to undermine the status of the Union at the

DeGraw facility.36

As reflected in the December 2014 “DeGraw Clinic Call Order” provided by the

Union, the majority of the nurses who were laidoff or placed in temporary positions

had decades of experience working for the Employer and its predecessors at the

former “ABC” facilities, and the Employer has identified no reason to doubt their

status as highly qualified employees that would be desirable to staff the new DeGraw

facility. Indeed, the Employer had already planned, for a period of years, to transfer

or recall those same nurses to assist with opening the DeGraw facility—the Employer

and the Union had even solicited specific shift preferences in December 2014.

Although there was ultimately an extended delay before the facility opened, there is

no evidence or claim that the Employer had reason to believe that the laidoff or

transferred nurses would no longer be interested in returning. To the contrary, many

35 Lana Blackwell Trucking, LLC, 342 NLRB 1059, 1059 n.1, 1061 (2004) (“Although

the employees may not have had any contractual rights to be recalled, the question

remains whether the Respondent’s decision not to recall [them] was discriminatory

and motivated by an antiunion purpose . . . .).

36 We also note that the DeGraw facility ultimately began hiring only several months

after some of the affected employees’ recall rights expired. The last BKC employees’

contractual recall rights expired in approximately mid-August 2016, and the

Employer began hiring for the DeGraw facility as early as October 2016. Simply

because the Employer was not contractually obligated to recall the employees at that

point does not explain why, after the passage of only several additional weeks, it did

not in fact recall those experienced employees.

pproximately mid-August 2016, and the

Employer began hiring for the DeGraw facility as early as October 2016. Simply

because the Employer was not contractually obligated to recall the employees at that

point does not explain why, after the passage of only several additional weeks, it did

not in fact recall those experienced employees.

Cases 29-CA-186891, et al.

- 23 -

of the nurses remained in less desirable “temporary” positions to which they had

transferred with the expectation of eventually moving to DeGraw.

Moreover, when the AHC and BKC closure agreements were negotiated, both the

Employer and the Union fully expected the DeGraw facility to open well before the

expiration of the 12-month contractual recall rights. When circumstances changed

due to unforeseen delays, the Employer affirmatively decided to change its plans in

order to not recall or transfer the former AHC and BKC nurses, and its opportunistic

reliance on the fact that the contractual recall rights had expired by that point does

not offer a substantive justification for that decision. In addition, we note that the

Employer first began asserting that the DeGraw facility would not be part of the unit,

and that none of the staff from the former “ABC” facilities would be transferred or

recalled, before the last contractual recall rights had actually expired.

In sum, we find that the Employer’s reliance on the employees’ lack of

contractual recall rights is not a legitimate explanation for its deliberate decision not

to transfer or recall qualified employees to the DeGraw facility—as it had planned to

do for several years, as it was easily capable of doing, and as it only decided not to do

after its bargaining dispute with the Union and its apparent desire to remove the

DeGraw facility from the bargaining unit in order to drastically cut employee

benefits.37 Although the Employer’s ultimate goal may have been cost savings, rather

than an ideological hostilit

w facility—as it had planned to

do for several years, as it was easily capable of doing, and as it only decided not to do

after its bargaining dispute with the Union and its apparent desire to remove the

DeGraw facility from the bargaining unit in order to drastically cut employee

benefits.37 Although the Employer’s ultimate goal may have been cost savings, rather

than an ideological hostility toward the Union, an employer may not accomplish such

goals by discriminating against Union-represented employees in lieu of bargaining to

impasse, as required by the Act. As such, we find that the Employer has violated

Section 8(a)(3) by discriminatorily failing to transfer or recall unit nurses.38

37 The Employer’s only other explanation for its failure to recall or transfer unit

nurses to the DeGraw facility is that it was following its “standard” hiring procedure.

However, we find that this explanation is again pretextual. Nothing required the

Employer to follow such procedure, because in fact for a period of several years it

planned to staff the DeGraw facility without using an open hiring procedure.

38 We further note that such finding of a violation provides a separate independent

basis for the Section 8(a)(5) violation discussed previously. Even assuming that the

DeGraw facility is outside the established bargaining unit, “but for” the Employer’s

discriminatory refusal to transfer or recall Union-represented nurses, the DeGraw

facility would have been staffed by a majority of transferee employees performing

work relocated from the closed AHC and BKC facilities. See, e.g., Gitano Group, 308

NLRB at 1175 n.20, 1176.

tside the established bargaining unit, “but for” the Employer’s

discriminatory refusal to transfer or recall Union-represented nurses, the DeGraw

facility would have been staffed by a majority of transferee employees performing

work relocated from the closed AHC and BKC facilities. See, e.g., Gitano Group, 308

NLRB at 1175 n.20, 1176.

Cases 29-CA-186891, et al.

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C. The Union Did Not Violate Section 8(b)(1)(A), (2), or (3) by Attempting to

Enforce the Scope of the Established Bargaining Unit

Finally, we conclude that the Union has not violated Section 8(b)(1)(A), (2), or (3)

of the Act and that the unfair-labor-practice charges against the Union should be

dismissed. For the reasons discussed above, we find that the DeGraw facility is, in

fact, part of the established bargaining unit represented by the Union. As such, the

Union did not violate the Act by attempting to enforce its rights and to engage in

bargaining on behalf of the employees at the DeGraw facility.

/s/

J.L.S.

H:ADV.29-CA-186891.Response.Fresenius.

(b) (6), (b) (7