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GREATER NEW YORK HEALTH CARE FACILITIES ASSN.

January 21, 1980;

GREATER NEW YORK HEALTH CARE FACILITIES ASSOCIATION, INC., a New York Not-for-Profit Corporation, Individually and on behalf of its member residential health care facilities, Plaintiff,
v.
Peter OTTLEY, Individually and as President of Local 144, Hotel, Hospital, Nursing Home and Allied Services Employees Union, SEIU, AFL-CIO, Defendants



The opinion of the court was delivered by: DUFFY

OPINION AND ORDERS

This action was commenced by the Greater New York Health Care Facilities Association, Inc. (hereinafter referred to as "the Association" or "Management") against Local 144 of the Hotel, Hospital, Nursing Home and Allied Services Employees Union (hereinafter referred to as the "Union" or "Local 144"), and its president Peter Ottley seeking to enjoin a threatened strike by Local 144 against the Association.

I

 The Association, formerly known as the Metropolitan New York Nursing Home Association, Inc., is a multi-employer association authorized by its several nursing home members to enter into collective bargaining agreements on their behalf.

 Local 144 is a labor organization within the meaning of the Labor Management Relations Act, 29 U.S.C. § 141 et seq. Peter Ottley serves as the President of the Union. The Union is the exclusive bargaining agent for its approximately 10,000 members employed by the Association in non-supervisory job classifications such as registered nurses, licensed practical nurses and so-called "blue collar" workers. Among those included in the "blue collar" classification are aides, orderlies, porters, kitchen helpers and the like. Since 1965, the Union has been the exclusive bargaining agent for these employees in the facilities owned by members of the Association.

 Since 1965, the Association and the Union have maintained a continuous collective bargaining relationship. This relationship has weathered many stormy periods over the years.

 On April 26, 1972, the Association and the Union entered into three separate collective bargaining agreements (hereinafter collectively referred to as the "master agreements" or "bargaining agreements"), covering the blue collar employees, the licensed practical and registered nurses. Each agreement provided, inter alia, that all controversies concerning their interpretation or application should be resolved by submission of the dispute for binding arbitration and that, during the life of the bargaining agreements and any extensions thereof, there should be no cessation or stoppage of work.

 These agreements were effective as of January 1, 1972 and expired November 30, 1974. Thereafter the Master Agreements were extended through November 30, 1976 with certain amendments. Upon the expiration of the Master Agreements in 1976, the Association and the Union were unable to reach agreement on many of the substantial terms and conditions of their labor contracts. Accordingly, they vested jurisdiction in Eric J. Schmertz, Esq., to mediate the unresolved contract issues. Mr. Schmertz thereafter issued recommendations, dated April 14, 1977 and June 16, 1977, which were incorporated by the Association and the Union into a memorandum extending their contractual agreements (as modified by the Schmertz recommendations) to March 31, 1978.

 This latter memorandum agreement executed by the parties specifically provided that if there were any disputes as to the terms of the bargaining agreements, these shall be submitted to Mr. Schmertz for binding arbitration.

 Indeed, Mr. Schmertz was called upon to resolve differences between the parties as to the terms of the contracts and he issued an award on January 10, 1978 fixing the terms and conditions of the blue collar labor contract. The master agreements covering the units of licensed practical nurses and non-supervisory registered nurses apparently remained in force as modified. By memorandum dated April 18, 1978, the Association and the Union extended the collective bargaining agreements which existed between them to March 31, 1981 except as expressly modified by that memorandum.

 In the meantime on April 14, 1978, Eric Schmertz was appointed as chairman of the State Labor Cost Review Panel. His term in that position expires on December 31, 1981. The Labor Cost Review Panel has jurisdiction over the medicare-medicaid payments made by the State of New York to the Association. The moneys to be paid under medicare and medicaid are derived from the State of New York, the City of New York and the United States Department of Health, Education and Welfare. In negotiations for the funds to be paid to nursing homes, the State acts as an agent for all three governmental authorities in dealing with the Association. At the time of his appointment to the Labor Cost Review Panel, all three governmental agencies recognized that Mr. Schmertz was still the arbitrator for contract disputes between the Association and the Union. No one raised any objections to his dual capacity.

 It should be clear from the above recitation that there still does not exist in one place a contract or indeed even three contracts covering the relationship between the Association and the Union. From time to time since April 1978, Mr. Schmertz has issued arbitration awards in connection with his position as contract arbitrator; the most recent presented to the Court being May 8, 1979. This award provides for an increase in pension benefits and contributions and an increase in payments to be made to the welfare fund. The welfare fund is an "employee welfare benefit plan" within the meaning of section 302(a)(1) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq. The Welfare Fund provides hospital benefits through contracts with Blue Cross of Greater New York, the Prudential Insurance Company of America and Health Insurance Plan of Greater New York together with dental insurance from AMI insurance company. The Welfare Fund is also a self insurer for surgical benefits and other kinds of health benefits.

 The trustees of these funds are Bartholomew J. Lawson, Nancy Lester, Joyce Burich and Fred Wilkins who were appointed by management. Appointed by the Union there is Peter Ottley, John Kelley, Austin Cedeno and Frank McKinney. All of the trustees of these funds are before this Court in related actions of which I will have more to say.

 II

 With this background I now turn to the various disputes and to a thumbnail explanation of how they arrived before me.

 On January 12, 1980, I was presented with a request for an Order to Show Cause and a Temporary Restraining Order to enjoin the Union from carrying out a strike and/or work stoppage against the nursing homes owned by members of the Association and staying the ten day notice served by the Union of its intention to strike. Among the papers attached to the application for the order was a letter addressed to the Association and the Federal Mediation and Conciliation Service and the New York State Mediation Board which reads as follows:

 
Gentlemen:

 Re: Ten Day Strike Notice

 
You are hereby notified that Local 144, Hotel, Hospital, Nursing Home & Allied Health Services Union and all employees in the bargaining units represented by Local 144 will strike and picket your member nursing homes on Tuesday, January 22, 1980 at 6 A.M. at the location of each such homes as per the attached list.
 
Very truly yours,
 
Peter Ottley
 
President

 The Order to Show Cause required the parties to appear before me on Monday, January 14, 1980, at 9:30 A.M. The parties appeared as required and I discovered that there were any number of disputes between them, some of which have already been matters of judicial concern. Some seventeen cases had been removed to this Court from the New York State Supreme Court each involving applications by the Association for stays of arbitration concerning claims made for arbitration by the Union. These cases were all assigned to me. There were also three cases before Judge Owen of this Court brought by the Association against the Union and its attorneys, et al. seeking, among other things, to permanently enjoin the Union and its attorneys from placing liens or restraints against the accounts of Association members.

 There was also pending in the New York State Supreme Court, County of New York, before Justice Thomas Hughes, a petition to stay arbitration brought by the management trustees of the Welfare and Pension Funds against the Union trustees of those Funds. This matter has been transferred to this Court by stipulation of the parties and by order of the New York State Supreme Court. *fn2" Jurisdiction is properly vested in this Court under both the Labor Management Relations Act, 29 U.S.C. § 141 et seq. and the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq.

 In addition, on January 17, 1980, a further action was brought by the Union against the Association seeking to enforce a Schmertz arbitration award with regard to pension benefits and the funding thereof. That matter was originally assigned to Judge Owen and has since been reassigned to me. In further addition to all of the above, an action has been instituted by the management trustees against the Union trustees in ...


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