D.C. Circuit Agrees with New York State Nurses Association that Employer Committed Unfair Labor Practice By Ceasing To Pay Pension Contributions After Labor Contract Expired

May 9, 2018

On May 4, 2018, a unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit enforced an order of the National Labor Relations Board (NLRB) holding that StaffCo of Brooklyn, LLC, the employer of a unit of registered nurses and nurse practitioners represented by the New York State Nurses Association (NYSNA), committed an unfair labor practice by ceasing to pay pension contributions for unit employees after its last collective bargaining agreement with NYSNA expired in May 2014.

StaffCo had petitioned the Court for review of an August 2016 NLRB decision, StaffCo of Brooklyn LLC and New York State Nurses Association, 364 NLRB No. 102 (Aug. 26, 2016), finding that StaffCo had violated the National Labor Relations Act when it unilaterally ceased making pension contributions.  The NLRB had cross-petitioned for enforcement of the decision, and NYSNA had intervened in support of enforcement.

In denying StaffCo’s petition for review and granting the NLRB’s cross-petition for enforcement, the Court rejected StaffCo’s arguments that NYSNA had waived its right to bargain as to pension contributions and had failed to diligently request bargaining, as well as StaffCo’s argument that it was impossible for StaffCo to make contributions because the pension plan would not have accepted them.

The Court’s decision is available here.

Cohen, Weiss and Simon LLP attorney Richard M. Seltzer represented NYSNA at oral argument before the Court.  Kate M. Swearengen was with him on the brief and represented NYSNA in the underlying administrative hearing.