The opinion of the court was delivered by: Denise Cote, District Judge
On July 23, 2008, petitioner Celeste J. Mattina, Regional Director, Region 2, National Labor Relations Board (the "Regional Director"), instituted this action against respondent Kingsbridge Heights Rehabilitation and Care Center ("Kingsbridge"), pursuant to Section 10(j) of the National Labor Relations Act (the "NLRA" or the "Act"), 29 U.S.C. § 160(j). The Regional Director seeks an injunction pending the final disposition of proceedings before the National Labor Relations Board (the "Board" or the "NLRB") against Kingsbridge in which it is alleged that Kingsbridge has engaged in, and is engaging in, unfair labor practices in violation of the Act.
As described in the affidavit of service and at the initial conference held on July 24 at 4:00 p.m., personal service of the petition and accompanying submissions was effected on July 23 at 5:30 p.m. Helen Sieger ("Sieger"), Kingsbridge's sole owner and Facility Operator, was present at the time of service, and directed that the papers be given to a Kingsbridge employee at the facility. Notice of the initial conference was provided to Sieger via e-mail at 11:15 a.m. on July 24; notice was also provided to Paul Sod and Ernest Collazo, attorneys who had represented Sieger in a related action. No one appeared on behalf of Kingsbridge at the initial conference.
Counsel for Kingsbridge filed a notice of appearance on July 30 and requested an extension of time to file opposition papers, which was granted. Opposition was filed on August 6, and petitioner replied on August 8. A hearing was held on August 12, at which Sieger was the sole witness.*fn1 For the following reasons, the petition is granted, and an injunction shall issue.
The following facts are undisputed, unless otherwise noted. Kingsbridge, a New York corporation, is a 400-bed nursing home located at 3400-26 Canon Place, in the Bronx. As noted, it is wholly owned by Sieger. 1199/SEIU, United Healthcare Workers East ("1199" or the "Union"), represents approximately 250 to 300 full- and part-time workers employed by Kingsbridge, including, inter alia, cooks, chefs, dishwashers, receptionists, clerks, dietary aids, recreation workers, social workers, maintenance staff, porters, and certified nursing aides (the "Employees"). The most recent collective bargaining agreement ("CBA") covering the Employees was entered into in 2002 by the Union and the Greater New York Health Care Facilities Association ("Greater New York"), a multi-employer association of which Kingsbridge had been a member (the "2002-2005 CBA"). The 2002-2005 CBA expired on April 30, 2005; it has not been renewed, and a superseding CBA has not been executed. Since the expiration of the 2002-2005 CBA, numerous disputes have arisen between Kingsbridge and the Union -- several of which have been the subject of unfair labor practice litigation before the NLRB -- culminating in a strike by the Union and the Employees that commenced on February 20, 2008, and continues to the present day. Before proceeding to a discussion of the instant petition, a review of this history, as well as a more detailed examination of the recent allegations that form the basis for the underlying NLRB action and this petition, is in order.
I. History of Labor Relations Between Kingsbridge and 1199: 2002 to Mid-2007
A. The 2002-2005 CBA and Related Litigation
As described in Resort Nursing Home & Kingsbridge Heights Rehabilitation Care Center v. NLRB, 381 F.3d 1262 (D.C. Cir. 2004), enforcing 340 N.L.R.B. 650 (2003), Greater New York and the Union were parties to a CBA that was to remain in effect until September 30, 2002. Id. at 1266. Greater New York and the Union began negotiations on a new contract in early January 2002, and conducted formal bargaining sessions on January 23 and February 1, after which a renewed CBA was executed.*fn2 Id. Kingsbridge and Resort Nursing Homes ("Resort"),*fn3 however, indicated on January 31, 2002, that they no long wished Greater New York to negotiate on their behalf, and thereafter refused to acknowledge that they were bound by the new CBA. Id. at 1266-67. The Union subsequently filed an unfair labor practices charge with the NLRB, which ruled that, under Retail Associates, Inc., 120 N.L.R.B. 388 (1958), and Chel LaCort, 315 N.L.R.B. 1036 (1994), Kingsbridge and Resort were not permitted to withdraw from multi-employer bargaining after the commencement of negotiations "absent unusual circumstances," which the Board found were not present in the case before it. Resort Nursing Home, 381 F.3d at 1265 (quoting Retail Associates, Inc., 120 N.L.R.B. at 395). The Board further found that there was no evidence of collusion between the Union and Greater New York designed to prevent Kingsbridge and Resort from discovering that negotiations had begun. Id. at 1270. The Board's order, directing that Kingsbridge and Resort execute and abide by the terms of the 2002-2005 CBA, was enforced by the United States Court of Appeals for the District of Columbia on November 30, 2004. Id. at 1272.
B. Disputes Following the Expiration of the 2002-2005 CBA: May 2005 to Mid-2007
As noted above, the 2002-2005 CBA expired on April 30, 2005, and has not since been renewed or superseded. In the year following the expiration of the CBA several unfair labor practice disputes arose between the Union and Kingsbridge, resulting in one arbitration and two NLRB proceedings.
First, as described in an opinion dated May 26, 2005, issued by Martin F. Scheinman, the Impartial Chairman appointed under Article 9 of the 2002-2005 CBA (the "2005 Arbitration Decision"), Kingsbridge and the Union had "for some time . . . been at odds over the issue of the Union's right to reasonable access to [Kingsbridge's facility] in order to perform its function as bargaining agent." The Impartial Chairman's opinion established various "principles" for resolving (and avoiding) such disputes in the future, including (1) that the Union "must provide reasonable notice" to Kingsbridge administrators prior to visiting Kingsbridge's facility to meet with Employees, with 48 hours' notice being ordinarily sufficient; and (2) that Kingsbridge must cooperate with Union requests by giving notice to the Employees of the impending visit, and must provide a reasonable location for meetings between the Union and the Employees.
Second, a series of disputes arose between Kingsbridge and the Union related to Kingsbridge's obligations under Articles 23 through 28 of the 2002-2005 CBA to make contributions to various funds maintained by the Union, including the Benefit Fund (which provides healthcare coverage to the Employees), Pension Fund, Education Fund, Child Care Fund, Job Security Fund, and Worker Participation Fund (the "Funds"). These Articles required that contributions to the Funds be paid on the tenth day of the month following the month in which the required contribution was accrued.*fn4 Article 29 of the CBA further defined, as a percentage of gross payroll, the amount Kingsbridge was required to contribute to each of the Funds.*fn5
As described in the two NLRB proceedings that arose out of this aspect of the dispute -- an action in Region 2 that resulted in a January 31, 2008 NLRB Order, Kingsbridge Heights Rehabilitation Care Center, 352 N.L.R.B. No. 5, 2008 WL 310888 (Jan. 31, 2008), enforced No. 08-2025-AG (2d Cir. July 11, 2008),*fn6 and an action in Region 29 in which Administrative Law Judge Steven Fish has recently issued a decision, Kingsbridge Heights Rehabilitation Care Center, Case 29-CA-27502 (N.L.R.B. July 30, 2008)*fn7 -- Kingsbridge ceased making timely contributions to the Funds in June 2005. Kingsbridge Heights, Case 29-CA-27502, slip op. at 5. As a result, on November 28, 2005, Kingsbridge was notified by the Benefit Fund that health coverage for the Employees would be terminated effective January 31, 2006, unless all arrearages were satisfied. Id. at 6. The Union also filed charges with the NLRB on December 6, 2005, alleging that this unilateral change in the terms and conditions of the Employees' employment was an unfair labor practice. (These charges would ultimately result in the Region 29 proceedings.*fn8 ) Following the failure of limited negotiations between Kingsbridge and the Union,*fn9 health coverage for the Employees was terminated as scheduled on January 31, 2006.
In February 2006, the Employees took a strike vote, and a 3-day strike was approved by the Union's executive counsel, with the strike to take place on May 16-19. Kingsbridge Heights, 352 N.L.R.B. No. 5, 2008 WL 310888, at *3. The Union also planned to engage in informational picketing outside of Kingsbridge's facility on March 15 and May 15. Id.
On February 22, the parties held a meeting regarding this dispute that, as subsequently found by ALJ Fish, proceeded as follows:
Present were Joel Cohen [attorney for Kingsbridge], Helen Sieger[,] an administrator of Respondent, plus an administrator of Resort Nursing Home, which was as noted in the prior Board decision, related to Respondent, and which was also in arrears to the Funds. Present for the Union was Jay Sackman, who is vice president of the Union and head of its nursing home division, Bluestein, and several other Union officials. Cohen began by stating that Respondent did not want health benefits to be cut off, and pointed out that while Respondent was slow in making payments, this had been a pattern for many, many years and benefits had never been cut off before. Sackman replied that it is true that in the past the Benefit Fund had never cut off benefits when there had been delinquencies, but the Funds are trying to tighten up, because of the financial constraints on the Funds, and "they were making an effort to collect money in a more timely fashion."
Union, so that medical coverage could continue. Bluestein and Kolko replied that the Union was not interested in a payment schedule, and that Respondent must make up all the payments or benefits would be cut off.
Cohen responded that "we can't possibly be the only health institutions who have relationships with 1199 who were delinquent in payments to the Funds." Sackman answered that the "Union is pushing to get people not to be as delinquent as in the past." Cohen asked if any other health care institutions had their benefits cut off. Sackman replied "No," and explained that the other institutions had a signed contract with the Union. Cohen inquired "What does that have to do with it"? Sackman explained, "We have no enforcement mechanism to make sure that you will be bound by contract to make payments to the benefit Funds. We can't take it to arbitration, because there is no agreement. We can't go, we can't bring it to Court, we need to have a signed contract." Cohen then offered to sign a[n] interim agreement on health benefits, with an arbitration clause that would obligate Respondent to continue making benefits contributions. This would meet the Union's criteria, in that it provides the Union with an enforcement mechanism, so that employee benefits will not be cut off.
Sackman responded that the Union is not willing to sign such an agreement. Cohen asked "Why not"? Sackman answered that "If the Union signs such an agreement, and health benefits continue, Respondent will not have an incentive to agree on an overall contract." Cohen then stated that the Union was using the health benefits issue and the cut off of benefits as leverage in order to reach an agreement. Sackman answered that Cohen could characterize it however he wants, but the Union will not enter into an interim agreement and wants to "reach agreement on a full contract."
The parties then discussed the two open issues in the contract at the time. They were who the arbitrator would be in the contract, and the Respondent's position that it did not want to continue to contribute to the Child Care Fund. Various proposals went back and forth, but no agreement was reached. Cohen reiterated Respondent's prior offer to sign an interim agreement, so that health benefits are not cut off. Sackman reiterated the Union's position, that it was not willing to do that. The meeting concluded with no agreements reached on any issues.
Kingsbridge Heights, Case 29-CA-27502, slip op. at 6-7.
Following the failure of these negotiations, Kingsbridge engaged in two courses of conduct in violation of the Act. First, during the March 15, 2006 informational picketing, two individuals made, at Kingsbridge's request, video recordings of the picketing activity. During the proceedings that followed in Region 2,*fn10 ALJ Mindy E. Landow found that the security justifications for the video recording proffered by Sieger during her testimony -- including allegations of past Union misconduct and the need to preserve evidence of such misconduct -- were unsupported by probative evidence and, more generally, that Sieger "was neither a reliable nor wholly credible witness with regard to her descriptions of particular events." Kingsbridge Heights, 352 N.L.R.B. No. 5, 2008 WL 310888, at *10.
Second, during the week preceding the planned May 15, 2006 informational picketing and May 16-19 strike, the Employees were informed by Kingsbridge administrators that, if they went on the three-day strike, they would not be promptly reinstated, but would rather have to wait three weeks to return to work. Id. at *6-7. The administrators explained, and Sieger subsequently testified, that the reason for this delay was that the contracts that would be signed with the agencies who would provide temporary workers during the strike would have minimum terms of three weeks. Id. at *7. While ALJ Landow found this explanation "compelling," she further found that it was not, however, supported by the evidence. Id. at *20. Kingsbridge offered no evidence, and Sieger's testimony did not establish, that it had ever entered into a specific agreement with an agency that would provide replacement workers, or that any such agencies had ever proposed or required three-week terms of employment. Id. ALJ Landow accordingly found that Kingsbridge did not have a "sufficient business justification to assert its right to delay the reinstatement of employees" after the Employees' (anticipated) unconditional offer to return to work following the strike,*fn11 and, in addition, that the administrators had been "falsely communicating to employees that a delay in their reinstatement was a fait accompli based upon contractual arrangements which, at the time, failed to exist." Id.*fn12
Meanwhile, on May 1, 2006, Region 29 of the Board issued a complaint (based on the Union's December 6, 2005 charge) alleging that Kingsbridge had violated the Act by failing or refusing to make timely or complete payments to the Funds. Kingsbridge Heights, Case 29-CA-27502, slip op. at 1. On May 15, however, with the Employees gathered to begin their planned picketing, Union officials announced that Kingsbridge had agreed to make its payments to the Funds, and the picketing and strike were canceled. On June 2, the Benefit Fund reinstated health coverage for the Employees, and the parties reached a settlement regarding the Region 29 complaint on June 8. Id. at 7-8. The settlement was memorialized in an agreement (the "Settlement Agreement")*fn13 in which Kingsbridge agreed to pay $186,059.28 to the Funds in three installments over 90 days, and further promised, "[i]n addition to the contributions described above," to "make timely monthly contributions to the [Funds], as they become due." Accordingly, ALJ Fish issued an Order of June 26, 2006, dismissing the Region 29 complaint "subject to reopening and reinstatement in the event that [Kingsbridge] fails to comply with terms" of the Settlement Agreement.
II. Recent Allegations: Mid-2007 to the Present
The NLRB complaint underlying the instant action is premised upon alleged violations of the Act commencing in June 2007 -- approximately one year after the Settlement Agreement was executed -- and continuing to the present. See Kingsbridge Heights Rehabilitation & Care Center, Cases 2-CA-38418, -38708, -38628 & -38688 (N.L.R.B. May 30, 2008 & amended July 15, 2008) (the "Region 2 Complaint").*fn14 Several of the violations alleged in the Region 2 Complaint involve similar actions to those described above, e.g., failing to make timely contributions to the Funds, videotaping Union activity, denying Union officials access to Kingsbridge's facility, and threatening to discharge Employees who engage in a strike. New allegations include failing to provide required information about the Employees to the Union, "reimbursing" Union dues in order to discourage the Employees from being members of and supporting the Union, offering "yellow dog" contracts requiring Employees to renounce Union membership, and failing to meet and bargain with the Union. The factual record presented by the Regional Director in support of each of these allegations is described below, along with, where relevant, Kingsbridge's factual assertions and evidence offered in opposition to the petition.
A. Failure to Provide Required Information
Pursuant to the 2002-2005 CBA, Kingsbridge was required to provide certain information to the Union regarding, inter alia, the work schedule of each Employee during the preceding month. According to an affidavit submitted by Union organizer Noreen Wray-Roach ("Wray-Roach"), between April and August 2007, she made monthly requests for this information, as well as for a list of all Employees represented by the Union (including date of hire, full- or part-time status, rate of pay, department, and shift), but never received a response. During this period, Wray-Roach reports that she asked the then-Administrator for Kingsbridge, Lawrence Abrams ("Abrams"), why the information was not being provided, and Abrams said, "I have no control over it. When you send me the request, I forward it to Ms. Sieger.
That's as much as I can say to you." When Abrams was replaced as Administrator by Jacob Perles ("Perles"),*fn15 she renewed her requests, but likewise did not receive a response. The Regional Director has submitted letters of June 13 and August 3, 2007, from Wray-Roach to Abrams and Perles, respectively, documenting these requests.
Kingsbridge has submitted a declaration from Perles in which he states that he has "no recollection of receiving the 'information requests' referenced in the Petition." He further declares that the information described by Wray-Roach is included "as part of the monthly reports sent to [the Union] from the business office which accompanied the benefit fund checks."*fn16
B. Access to the Kingsbridge Facility
Wray-Roach's affidavit also states that prior to August 2007 she had been given access to the Kingsbridge facility in accordance with the terms provided in the 2005 Arbitration Decision -- she would provide notice to Abrams of her intent to visit the facility to meet with Employees on a particular day, and Abrams would respond by telling her when the conference room was available for such meetings. Wray-Roach reports -- and an affidavit from Kervin Campbell ("Campbell"), a long-term Kingsbridge Employee and 1199 shop steward, also describes --that she generally visited Kingsbridge every Thursday from 6:30 a.m. to 7:30 a.m. and from 11:00 a.m. to 4:00 p.m., which would allow her to see Employees from both the night and day shifts. Beginning on August 9, 2007, however, Wray-Roach reports that Perles began denying her access to the facility.
Wray-Roach avers that on Thursday, August 9, she arrived at the facility for her usual meetings but was denied access by Perles because, Perles reported to her, he had sent Wray-Roach a letter stating that the conference room would not be available that day. (A copy of such a letter, dated August 7, 2007, has been submitted by the Regional Director, and Wray-Roach concedes that, when she returned to her office, she found that letter.) Wray-Roach also avers that Perles told her that he needed to "monitor" her while she was in the building, a condition on her access which she rejected. Wray-Roach then left the building. Perles, by contrast, denies telling Wray-Roach that she needed to be monitored, and states that Wray-Roach became "verbally abusive" during their discussion.
It is not disputed that the following Thursday, despite receiving another fax from Perles saying that no room would be available for Wray-Roach to meet with Employees, Wray-Roach went to the facility. When she arrived, Wray-Roach claims, she was informed by the receptionist, Nadine Boyce (a Union Employee), that she had been suspended by Kingsbridge for five days, and told that she was required to call the Kingsbridge administration when Wray-Roach arrived.*fn17 Boyce did so, and Wray-Roach then spoke on the telephone with Sieger, who informed Wray-Roach that she was trespassing, and that the police would be called. (Perles states that the police were called because Wray-Roach was "again loud and disruptive.") In any event, according to Wray-Roach, the police officers who arrived declined to intervene in what they termed "a labor issue," and Wray-Roach then left the facility to meet with Employees outside.
Wray-Roach avers that between August 9 and sometime in October or November 2007, she sent weekly letters to Perles requesting access to the facility, and "[e]ach time, I received a response stating that there was no room available for me to meet with the members." The Regional Director has submitted copies of letters from Perles to Wray-Roach dated August 20 and 28, September 10, 19, and 24, and October 1, 2007, each stating, in response to a letter from Wray-Roach, that "the Conference room will not be available" on the date requested. Kingsbridge, in turn, has submitted a letter from then-counsel for Kingsbridge, Joel Cohen ("Cohen") to counsel for the Union, Hanan Kolko ("Kolko"), dated August 17, 2007, which describes the August 9 dispute between Wray-Roach and Perles and directs Kolko to "notify the Union that until this matter is resolved, Kingsbridge will not make its facilities available for Union meetings." In light of this letter, Perles avers that the letters sent by Wray-Roach between August and November 2007 were sent "for no other reason than to create a self-serving paper trail to use to file a charge."*fn18
C. Failure to Make Contributions to the Funds
It is not disputed that Kingsbridge made the lump-sum payments to the Funds called for under the Settlement Agreement entered into on June 8, 2006. The Regional Director has alleged, however, that Kingsbridge again became delinquent in its Fund contributions shortly after the Settlement Agreement was executed, and ceased making contributions altogether after a final payment made on August 9, 2007, for the obligations accrued in May 2007.*fn19
Kingsbridge, while conceding that it was delinquent in its Fund contributions, contends -- and Sieger testified at the August 12 hearing -- that it made its final contributions in early November 2007, and only ceased making such payments after that time because the Funds had terminated the Employees' health benefits. Kingsbridge asserts that this action was taken because, due to the termination of benefits, Kingsbridge "was under no obligation to continue to pay for benefits not received."
In support of its claim that it made payments -- albeit delinquent payments -- through early November 2007, Kingsbridge has offered two collections of documents. With its submission in opposition to this motion, and in support of Sieger's declaration reporting that Kingsbridge had made payments to the Funds as late as November 10, 2007, it provided copies of what appear to be check stubs indicating that certain payments were made to each of the Funds on November 10, 2007, to be credited toward the Fund obligations accrued in October 2007. At the August 12 hearing, Sieger changed course. She testified that she discovered "late last night" that her declaration was in error, that the checks associated with the November 10 check stubs had never been sent to the Funds, and that Kingsbridge never paid the Funds the amounts due for October. Instead, she offered three new sets of documents purporting to show that Kingsbridge made payments to the Funds for the obligations accrued in June, July and August 2007, with checks written in September, October, and November 2007, respectively.
ALJ Fish's recent decision -- on which both sides have relied here -- provides a detailed account of this aspect of the dispute between Kingsbridge and the Union. On August 23, 2007, Kolko sent an e-mail to ALJ Fish requesting, on behalf of the Union, that the hearing on the charges resolved by the Settlement Agreement be reopened in light of Kingsbridge's failure to make timely payments to the Funds. This e-mail also indicated that, due to Kingsbridge's delinquency in contributions to the Benefit Fund, the Benefit Fund would soon be notifying Employees that their benefits would be terminated at the end of October 2007. Kingsbridge Heights, Case 29-CA-27502, slip op. at 10.
Cohen responded on behalf of Kingsbridge on August 27, stating in a letter to Kolko that Kingsbridge "wishes to negotiate a change in how it makes payments to the [Funds]. Kingsbridge proposes that it be given up to 7 months to make payments to the various Funds without being considered in arrears. Please contact me when the Union is available to negotiate." The Union did not respond to this proposal, nor did Kingsbridge make any further effort to discuss it with the Union. Id. at 10, 17. Not having received any additional contributions from Kingsbridge, on November 5, 2007, the Benefit Fund again terminated the health coverage of the Employees.*fn20
On November 26, 2007, ALJ Fish issued an Order to Show Cause why the hearing should not be reopened. Kingsbridge opposed, arguing that (1) it had remained "relatively current in its payments to the Union funds," and (2) its August 27 proposal was a request to bargain on this issue, and that the Union's refusal to bargain gave Kingsbridge "the right to unilaterally change the terms of the collective bargaining agreement as it relates to when Funds payments must be made." Id. at 11.
On December 12, the hearing was reopened, and further proceedings were held on January 28 and May 1, 2008. ALJ Fish's decision was issued on July 30, 2008, approximately one week after this action was filed. In his decision, ALJ Fish found, inter alia, (1) that "from the first month after the settlement was executed, [Kingsbridge] has failed to make timely payments to the Funds," and has not made any contributions since August 9, 2007, id. at 15-16; (2) that Kingsbridge backdated Fund contribution checks on several occasions in 2007, id. at 9-10;*fn21 and (3) that the refusal of the Union to bargain over the August 27, 2007 proposal from Cohen did not provide a defense to this course of conduct, because the proposal was made over a year after Kingsbridge began to violate the Settlement Agreement (and thus was made "in the context of its unfair practices"), the policy thereafter implemented (i.e., not making any contributions to the Funds) was not consistent with its proposal, and Kingsbridge had not made a "diligent and earnest" effort to engage in bargaining over the proposal, id. at 16-18.*fn22
(Notably, at no time during the proceedings before ALJ Fish did Kingsbridge claim that it had made payments to the Funds after August 2007.) ALJ Fish therefore concluded that Kingsbridge had violated the terms of the Settlement Agreement and engaged in an unfair labor practice in violation of the Act by failing to make timely contributions since June 2005 and failing to make any contributions whatsoever for various months, including no payments since August of 2007. Id. at 23.*fn23
The record created in the proceedings before ALJ Fish as well as his findings provide reasonable cause to believe that Kingsbridge ceased making payments to the Funds in August 2007 and that even those payments were delinquent. The evidence provided ...