Cofire Paving Corp, (2012)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Cofire Paving Corporation and Local 175 United Plant & Production Workers. Case 292013CA2013 027556

September 28, 2012 DECISION AND ORDER

BY CHAIRMAN PEARCE AND MEMBERS HAYES AND GRIFFIN

On December 5, 2006, Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief. The General Counsel filed cross-exceptions and a supporting brief, and the Respondent filed an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions¹ and briefs and has decided to affirm the judge2019s rulings, findings, and conclusions as modified, to amend the remedy,² and to adopt the recommended Order as modified and set forth in full below.³

1. INTRODUCTION

   This case concerns an employer2019s obligation to maintain the terms and conditions of employment when one labor organization replaces another as the employees2019 collective-bargaining representative. On August 8, 2005,

   ¹ There are no exceptions to the judge2019s dismissal of the allegation that the Respondent violated Sec. 8(a)(5) and (1) of the Act by failing to bargain over the closing of the asphalt plant and the layoff of the unit employees.

   ² In accordance with our decision in Kentucky River Medical Center, 356 NLRB No. 8 (2010), we modify the judge2019s remedy by requiring that backpay shall be paid with interest compounded on a daily basis.

   ³ We shall substitute a limited bargaining order for the affirmative bargaining order recommended by the judge, which is not necessary to remedy the Respondent2019s unilateral changes in terms and conditions of employment. See, e.g., Ferguson Enterprises, Inc., 349 NLRB 617, 617 fn. 1 (2007). We shall also modify the recommended Order to comport with the Board2019s usual remedial provisions, to correct the unit description, and to provide for the posting of the notice in accord with

   J. Picini Flooring, 356 NLRB No. 9 (2010). For the reasons stated in his dissenting opinion in J. Picini Flooring, Member Hayes would not require electronic distribution of the notice. Finally, we shall also modify the recommended Order to require the mailing of copies of the notice to the Union and to all unit employees employed at any time since the alleged unfair labor practices. The mailing is required because, although the Respondent had not formally closed its asphalt plant as of the hearing, it had ceased operations at the plant and laid off all of the unit employees. We shall substitute a new notice to conform to the Order as modified.

   the Board certified Local 175, United Plant & Production Workers Union (the Union) as the exclusive collectivebargaining representative of the Respondent2019s production employees at its Flushing, New York asphalt plant. Prior to the Union2019s certification, the employees were represented by Local 1175, Laborers International Union of North America, AFL2013CIO (Local 1175). The complaint alleges, and the judge found, that the Respondent committed several unfair labor practices after the change in bargaining representative.

   Specifically, the judge found, and we agree for the reasons set forth in his decision, that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally reducing the unit employees2019 vacation pay. We also agree with the judge2019s finding that the Respondent violated Section 8(a)(5) and (1) by its conduct regarding contributions that it previously paid to pension and annuity funds sponsored by the incumbent union, but we do not rely on his rationale. Finally, we agree with the judge2019s dismissal of the complaint allegation that the Respondent unlawfully implemented a new health insurance plan to replace the plan provided through the incumbent union2019s welfare fund, but only for the reasons set forth below.

2. BACKGROUND

   For many years, employees working in the Respondent2019s asphalt plant were represented by Local 1175, Laborers International Union of North America, AFL2013 CIO. The Respondent and Local 1175 were parties to a series of multiemployer collective-bargaining agreements, the most recent of which was effective from July 1, 2002, to June 30, 2005.⁴ On April 20, 2005,⁵ Local 175, United Plant & Production Workers Union filed a petition to represent the Respondent2019s asphalt production employees. Following an election held on July 27, in which both the Union and Local 1175 were on the ballot, the Union was certified as the exclusive collectivebargaining representative of the asphalt production employees on August 8.⁶

   ⁴ Local 1175 was merged into Building, Concrete, Excavating and Common Laborers, Local 731, Laborers International Union of North America, AFL2013CIO (Local 731), sometime after the execution of the 200220132005 collective-bargaining agreement. All references herein to Local 1175 are meant to refer as well to Local 731.

   ⁵ All subsequent dates are in 2005, unless otherwise noted.

   ⁶ Local 1175 also represented a single shipper in a separate bargaining unit. The shipper was not eligible to vote in the July 27 election and was not included in the certified unit of asphalt production employees. The judge nevertheless found that, 201c[a]lthough initially excluded from the unit by the Board, the parties agreed to include the shipper in[] the bargaining unit. Therefore, there were five employees in the unit during this time.201d The Respondent excepts to the judge2019s finding in this regard, arguing that the shipper was not included in the certified unit until after the backpay period ended, and thus it should not have a

   359 NLRB No. 10

   2

   The collective-bargaining agreement between Local 1175 and the Respondent required, among other things, that the Respondent make payments to welfare, pension, and annuity funds sponsored by Local 1175. The agreement specifically set forth wage rates and, separately, contribution rates for each of the three funds. Upon the expiration of the agreement on June 30, the Respondent ceased making payments to the benefit funds. There is no allegation that the cessation was unlawful.

   Subsequent to the Union2019s certification, the Union, on August 30, sent a proposed memorandum of understanding (MOU) to the Respondent and requested bargaining. The proposed MOU stated that the terms and conditions of the now-expired collective-bargaining agreement with Local 1175 would remain in effect until a new collectivebargaining agreement was reached. On September 21, the Union presented a revised proposed MOU to the Respondent, which specified that the Respondent would continue contributions in the amounts it had previously paid to benefit funds sponsored by Local 1175, but would remit those contributions to funds sponsored by the Union. The Respondent refused to sign either of the proposed MOUs. The Respondent2019s president, Ross Holland, testified that he did not think the Respondent could legally contribute to the welfare, pension, and annuity funds sponsored by the Union because the funds were not yet operational. In this regard, the record shows that Holland requested summary plan descriptions for the funds, but the Union did not provide them at any time during the negotiations because the plans had not yet been approved by the Internal Revenue Service.

   The Union and the Respondent first met for bargaining on September 22. In attendance were Holland, Union President Richard Tomaszewski, and Union Business Manager Luciano Falzone. The discussion focused on the Respondent2019s financial condition. The Respondent2019s asphalt plant had been operating at a loss for many years, and the Respondent2019s milling operation had been subsidizing the asphalt operation.⁷ In the 2 years preceding the election, however, the Respondent had sustained net operating losses. In addition, as a result of the decertification of Local 1175, the plan assessed pension withdrawal liability of $250,000 against the Respondent,

   backpay obligation to the shipper. We find merit in the exception. The parties entered into a stipulated election agreement to permit the shipper to vote on whether he wished to join the certified unit on May 24, 2006, some 2 months after the asphalt plant closed and the backpay period ended.

   ⁷ Milling is the removal of the top layer of asphalt from a road prior to resurfacing. The milling operation employed approximately 40 people, and it produced approximately 70 percent of the Respondent2019s revenue. The asphalt operation was much smaller, employing four to six people.

   payable over 10 years. Pointing to these factors, Holland stated that it was not economically feasible for the Respondent to continue operating the asphalt plant under the terms of the expired agreement with Local 1175.

   The parties also discussed that the employees would be losing their health insurance coverage, which was provided through Local 11752019s welfare fund.⁸ Tomaszewski said that the Union2019s welfare fund was in the process of setting up a plan that would provide the same benefits as Local 11752019s plan. He proposed that the Respondent contribute to the Union2019s welfare fund at the same rate, $3.77 per hour, that it had contributed to Local 11752019s welfare fund. Holland questioned whether that amount was sufficient to provide the coverage the Union was promising. Holland believed that $3.77 per hour was too low based on his experience with both the plan the Respondent provided to its nonunion employees and the Respondent2019s...