Pratt Industries, Inc., (2012)

National Labor Relations Board

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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).

ORDER

The 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...

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