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Staffco of Brooklyn, LLC v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

May 4, 2018

StaffCo of Brooklyn, LLC, Petitioner
National Labor Relations Board, Respondent New York State Nurses Association, Intervenor

          Argued January 9, 2018

          On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

          Nicholas M. Reiter argued the cause for petitioner. With him on the briefs was Benjamin E. Stockman. Moxila A. Upadhyaya entered an appearance.

          Jared D. Cantor, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Richard F. Griffin, General Counsel at the time the brief was submitted, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Kira Dellinger Vol, Supervisory Attorney.

          Richard M. Seltzer argued the cause for intervenor. With him on the brief was Kate M. Swearengen.

          Before: Pillard and Wilkins, Circuit Judges, and Sentelle, Senior Circuit Judge.


          Sentelle, Senior Circuit Judge

         StaffCo of Brooklyn, LLC ("StaffCo"), petitions for review of a National Labor Relations Board ("NLRB" or "the Board") order finding that StaffCo violated section 8(a)(5) and (1) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 158(a)(5) and (1), by unilaterally discontinuing contributions to a Union pension plan upon the expiration of a collective bargaining agreement ("CBA"). StaffCo contends that: (1) the Union expressly waived its right to bargain as to pension contributions; (2) the Union impliedly waived its right to bargain by failing to diligently request bargaining; and (3) it was impossible for StaffCo to continue making contributions because the pension plan would not have accepted the payments. Because we reject these defenses and the Board's findings are supported by substantial evidence on the record, we deny StaffCo's petition for review and grant the Board's cross-application for enforcement.

          I. Background

         A. Factual Background

         The State University of New York Downstate Medical Center ("SUNY Downstate") contracted with StaffCo to provide non-physician staff at Long Island College Hospital. StaffCo hired nurses and nurse practitioners to staff the Hospital and nearby school clinics run by the Hospital. Intervenor New York State Nurses Association represents the employees as collective bargaining agents and entered into a CBA effective May 29, 2011, through May 28, 2012.

         Under the CBA, StaffCo agreed to participate in the Union's pension plan and contribute to it. StaffCo and the Union also agreed to be bound by the terms and provisions of the plan as set out in its Agreement and Declaration of Trust. The admission requirements of the plan dictate that the CBA of an admitted employer must not be inconsistent with the plan itself or its trust agreement. The plan documents include a Policy for Continuation of Coverage Upon Expiration of a Collective Bargaining Agreement ("the Policy"). The Policy sets the conditions on which Plan coverage would continue if a CBA or interim agreement expired. The relevant portion of the Policy states:

Upon expiration or termination of a collective bargaining agreement, if (i) the employer has not submitted to the Plan Office a new [CBA] which satisfies the requirements of (A) above [for new CBAs] and has not complied with the provisions of (B)(1) above [governing continuation of coverage], or (ii) the employer owes contributions to the Fund for more than two months (without regard to when such contributions are payable), the employer's participation in and status as an Employer under the Fund shall forthwith terminate, the service of such employer's employees shall no longer be credited under the Plan, the employer and the Association, shall be notified in writing, and the employees of the employer shall be notified in writing five business days thereafter, that the employer is no longer maintaining the Plan and that the covered employment of the employees of the employer terminated on the expiration/termination date of the [CBA].

         After expiration of the initial CBA, the parties signed three extensions and two interim agreements ensuring continuation of pension coverage. The last extension was signed on March 13, 2014, and would expire on May 22, 2014. May 22 was significant because the Hospital was to shut down after that date. That date was also significant ...

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