Pratt Industries, Inc., (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. Pratt Industries, Inc. and International Union of Operating Engineers, Local 30. Cases 292013CA2013 030271, 292013CA2013030281, and 292013CA2013030382 June 5, 2012 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HAYES AND GRIFFIN On August 30, 2011, Administrative Law Judge Lauren Esposito issued the attached decision. The Respondent filed exceptions and a supporting brief, the Acting General Counsel filed an answering brief, and the Respondent filed a reply 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 exceptions and briefs and has decided to affirm the judge2019s rulings, findings,1 and conclusions and to adopt the recommended Order.2 1 In finding that the Respondent violated Sec. 8(a)(5) and (1) by unilaterally subcontracting unit work in June 2010, we agree with the judge that the Respondent did not establish a defense under Westinghouse Electric Corp., 150 NLRB 1574 (1965). In particular, we find that, as to the two unnamed employees, the Respondent, which bears the burden of proving this defense, failed to show that the subcontracting comported with its customary business operations, did not vary significantly in kind or degree from an established past practice, and had no demonstrable adverse impact on unit employees. As to employee Andre Jones, we find that the Respondent failed to show that it gave the Union an opportunity to bargain over the subcontracting decision and did not show that the subcontracting would have no adverse impact on unit employees. In addition, for the reasons stated by the judge, Chairman Pearce would find that the Westinghouse analysis is inapplicable where, as here, the subcontracting occurs while a newly-certified union is negotiating a first contract. Eugene Iovine, Inc., 356 NLRB No. 134 fn. 3 (2011). Member Griffin finds it unnecessary to pass on that question in light of the fact that the Respondent here failed to establish a defense under Westinghouse. Member Hayes agrees with his colleagues that the instances of subcontracting to two unnamed individuals were unlawful under Westinghouse. As to the subcontracting to Andre Jones, however, he would find that the Respondent lawfully subcontracted work consistent with its narrow past practice of 201cauditioning201d contractors to fill vacancies. 2 We amend the judge2019s remedy to provide that the make-whole remedy shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), rather than with F. W. Woolworth Co., 90 NLRB 289 (1950). The Ogle Protection formula applies where, as here, the Board is remedying 201ca violation of the Act which does not involve cessation of employment status or interim earnings that would in the course of time reduce backpay.201d Ogle Protection Service, supra at 683; see also Pepsi-America, Inc., 339 NLRB 986, 986 fn. 2 (2003). ORDERThe National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Pratt Industries, Inc., Staten Island, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Dated, Washington, D.C. June 5, 2012 Mark Gaston Pearce, Chairman Brian E. Hayes, Member Richard F. Griffin, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD Nancy Reibstein, Esq. and Linda Tooker, Esq., for the Acting General Counsel. Jane B. Jacobs, Esq. (Klein, Zelman, Rothermel, LLP), of New York, New York, for the Respondent. Paula Clarity, Esq. (Archer, Byington, Glennon & Levine), LLP), of Melville, New York, for the Charging Party. DECISION STATEMENT OF THE CASE LAUREN ESPOSITO, Administrative Law Judge. Based upon charges filed on June 15, 2010, June 23, 2010, and September 7, 2010, by International Union of Operating Engineers, Local 30 (the 201cUnion201d), a consolidated complaint and notice of hearing issued on September 17, 2010, and a second consolidated amended complaint and notice of hearing issued on November 24, 2010. The second consolidated amended complaint (the 201cComplaint201d) alleges that Pratt Industries, Inc. (201cEmployer201d or 201cRespondent201d) violated Sections 8(a)(1) and (5) of the Act by altering terms and conditions of employment for bargaining unit employees, which involve mandatory subjects of bargaining, without first bargaining to agreement or to a good-faith impasse. At the hearing, the complaint was amended to include an allegation that the discipline of employee Joe Hamilton pursuant to Respondent2019s altered call-out and sick leave policies violated Sections 8(a)(1) and (5). Respondent filed an answer denying the material allegations of the complaint. This case was tried before me on February 4, 2011, and on March 28, 29, and 30, 2011, in Brooklyn, New York. On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the Acting General Counsel (the 201cGeneral Counsel201d) and Respondent I make the following DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. JURISDICTION Respondent is a domestic corporation with an office and place of business located at 4435 Victory Boulevard, Staten Island, New York, where it is engaged in the manufacture and recycling of paper and packaging products. Annually, Respondent in the course and conduct of its business operations purchases and receives at its Staten Island facility goods, supplies, and materials in excess of $50,000 directly from points outside the State of New York. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent recycles paper and cardboard waste, manufacturing paper and packaging products, at its Staten Island facility. Within the facility there is a production department which operates machinery, a recycling department that receives and sorts the arriving waste paper, a maintenance department which performs mechanical work, a warehouse department which stores and ships the finished product, and an electrical and instrumentation (hereinafter 201cE&I201d) department. On September 28, 2009, following a representation election, the Union was certified as the exclusive collective-bargaining representative of the following bargaining unit: All full-time and regular part-time electrical and instrumentation technicians employed by the Respondent at the Respondent2019s Staten Island facility, excluding other maintenance employees, truck drivers, clamp truck operators, paper makers, yard operators, yard leads, barge operators, other production employees, clerical employees, professional employees, guards, managers, superintendents, and supervisors as defined in the Act. Respondent admits and I find that since September 28, 2009, the Union has been the exclusive representative of the bargaining unit employees for the purposes of collective bargaining. At the time of the hearing in this matter, there were six bargaining unit employees2014Darren Kologi, Joseph Hamilton, John O2019Donnell, Ramon Cedeno, Gary Stern, and Bob MacIntosh. Another bargaining unit employee, Larry Dobson, resigned his employment during the summer of 2010, and at the time of the hearing had not been replaced. Kologi and Hamilton are shop stewards for the Union, and have attended negotiating sessions. Kevin Cruse is a field representative employed by the Union, and has been the Union2019s chief spokesperson during collective-bargaining negotiations with Respondent. Victor Columbus is the chief labor relations spokesperson for all of Respondent2019s locations throughout the United States, and has been Respondent2019s chief spokesperson during the collective-bargaining negotiations regarding the E&I technicians. John Hennessy is the general manager of Respondent2019s mill division, and is responsible for the overall operations of the Staten Island facility. Mark Mays is Respondent2019s engineering manager at the Staten Island facility. Keelie Cruz is the Regional A term manager, and is responsible for human resources at five of Respondent2019s facilities, including the Staten Island facility. Mike Austin has supervised the E&I technicians since approximately January 2010, and prior to that Kevin O2019Rourke supervised the bargaining unit employees. B. Respondent2019s facility and the work of the bargaining unit employees Respondent2019s Staten Island facility consists of four2014the main mill, the sorting line where recycled materials are recycled, the warehouse, and a separate corrugating mill. The E&I technicians perform installation, maintenance, repairs, and ordering for electrical wiring and electrical and instrumentation components of machinery at the facility. They work in all of the buildings, ensuring that motors are running, providing wiring and communications, and maintaining and repairing valves, screens, and other machinery. They are responsible for cleaning and maintaining motors and replacing motors when necessary from an inventory of spare motors kept on racks. During the period of time material to the allegations here, Hamilton was responsible for the organization of the motors in the inventory area. The E&I technicians are also responsible for maintaining emergency lights and exit signs, and work on other special projects over longer periods of time. The E&I technicians meet with their supervisor for 15 minutes prior to...
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