Tramont Manufacturing, LLC, (2017)
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
Tramont Manufacturing, LLC and United Electrical, Radio and Machine Workers of America, Local 1103. Case 18–CA–155608
April 7, 2017
ORDER VACATING, AND DECISION AND ORDER ON REMAND
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
On May 23, 2016, the National Labor Relations Board issued a Decision and Order in this case. 364 NLRB No.
5. The Respondent subsequently filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit. The Board then recognized that it had overlooked an issue raised by the Respondent on exceptions to the Board (whether the administrative law judge applied the correct legal standard), and so failed to decide the issue. Accordingly, the Board moved the District of Columbia Circuit to remand the case. The court, in turn, remanded the case so that the Board could consider the overlooked issue.
The Board hereby vacates its original Decision and Order in this case, reported at 364 NLRB No. 5. As explained below, we now take up the case anew, including consideration of the overlooked issue pursuant to the court’s remand.
On January 28, 2016, Administrative Law Judge Sharon Levinson Steckler issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions, a supporting brief, and an answering brief.
The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions, to amend the remedy, and to adopt the recommended Order as modified and set forth in full below. 2
1 Although the Respondent excepts to the judge’s finding that it failed to provide the Union with timely notice about its decision to lay off 12 unit employees, it has presented no argument in support of this exception. Accordingly, the Respondent’s exception may be disregarded pursuant to Sec. 102.46(b)(2) of the Board’s Rules and Regulations, and we find it appropriate to do so here. See Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006).
2 In accordance with our decision in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), we shall modify the judge’s recommended tax compensation and Social Security reporting remedy. We shall modify the judge’s recommended Order and substitute a new notice to reflect this remedial change and to conform to the Board’s standard remedial language.
The Respondent is a Burns successor3 that unilaterally implemented terms and conditions of employment by circulating an employee handbook. The handbook established procedures for how the Respondent would select employees for layoffs. When the Respondent decided to lay off employees, it did not bargain with the Union over the decision or effects of the layoffs. The judge found that the Respondent violated the Act by failing to afford the Union an opportunity to bargain over the effects of the layoffs. The judge first rejected the Respondent’s argument that, under a “contract coverage” theory (adopted by certain courts, but not the Board), the Union had no right to notification or effects bargaining. In so finding, she reasoned that (1) “contract coverage” could not apply because the parties never bargained over the terms of the handbook, and (2) the Board has rejected the “contract coverage” analysis in favor of the “clear and unmistakable” waiver standard. Next, the judge held that, pursuant to the “clear and unmistakable” waiver analysis, the Union did not waive its right to bargain over the effects of the layoffs. She explained that although the handbook addressed how the Respondent could decide who to lay off, it did not explicitly speak to the effects of any layoffs. Accordingly, she held that “[n]othing reflects that the Union waived its right to be notified or bargain effects before Respondent laid-off employees.” The Respondent has excepted, arguing, among other things, that the judge should have applied a
We also amend the judge’s remedy to provide that backpay 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 in cases such as this one that involve the limited make-whole remedy established in Transmarine Navigation Corp., 170 NLRB 389 (1968). See Memorial Hospital of Salem County, 363 NLRB No. 56 (2015); Champaign Builders Supply, 361 NLRB No. 153 (2014).
The General Counsel has excepted to the judge’s refusal to order the Respondent to reimburse affected employees for search-for-work and work-related expenses regardless of whether they received interim earnings in excess of these expenses, or at all, during any given quarter or during the overall backpay period. In accordance with our recent decision in King Soopers, Inc., 364 NLRB No. 93 (2016), we shall order the Respondent to compensate affected employees for their search-for-work and interim employment expenses regardless of whether those expenses exceed interim earnings. Search-for-work and interim employment expenses shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). For the reasons stated in his separate opinion in King Soopers, supra, slip op. at 12–16, Acting Chairman Miscimarra would adhere to the Board’s former approach, treating search-for-work and interim employment expenses as an offset against interim earnings.
3 NLRB v. Burns International Security Services, 406 U.S. 272 (1972).
365 NLRB No. 59
“contract coverage” analysis instead of a “clear and unmistakable” waiver analysis.
We agree with the judge that the Respondent violated Section 8(a)(5) of the Act. That result follows from application of either the “clear and unmistakable waiver” standard, to which the Board adheres,4 or the “contract coverage” standard, which has been adopted by certain courts, including the District of Columbia Circuit,5 and which the Respondent contends should be applied here.
The crucial fact in this case is that the Union and the Respondent had not entered into a collective-bargaining agreement that addressed the subject of layoffs in any manner. Rather, the Respondent’s position that it was entitled to act unilaterally is predicated on a handbook provision that (as the judge correctly found) was itself unilaterally implemented by the Respondent when it assumed operations and to which the Union had never agreed.
Applying the waiver standard, we find, for the reasons stated by the judge, that the Union has not waived effects bargaining.
Alternatively, adopting the judge’s factual findings and analyzing the case under the “contract coverage” standard, we find that the Respondent was not privileged to act unilaterally. The District of Columbia Circuit has explained the “contract coverage” standard this way:
[T]he duty to bargain under the [National Labor Relations Act] does not prevent parties from negotiating contract terms that make it unnecessary to bargain over subsequent changes in terms or conditions of employment. “The union may exercise its right to bargain about a particular subject by negotiating for a provision in a collective bargaining contract that fixes the parties' rights and forecloses further mandatory bargaining as to that subject.” Local Union No. 47, IBEW v. NLRB, 927 F.2d 635, 640 (D.C.Cir.1991) (citing UMW Dist. 31 v. NLRB, 879 F.2d 939, 944 (D.C.Cir.1989); IBEW Local 1466 v. NLRB, 795 F.2d 150, 155 (D.C.Cir.1986)). “[T]o the extent that a bargain resolves any issue, it removes that issue pro tanto from the range of bargaining.” Connors v. Link Coal Co., 970 F.2d 902, 905 (D.C.Cir.1992). This court has referred to this inquiry as an analysis of whether an issue is “covered by” a collective bargaining agreement. See id. at 906; Dep't of Navy v. FLRA, 962 F.2d 48, 57 (D.C.Cir.1992).
4 See, e.g., Provena St. Joseph Medical Center, 350 NLRB 808 (2007).
5 See, e.g., NLRB v. U.S. Postal Service, 8 F.3d 832 (D.C. Cir. 1993).
U.S. Postal Service, supra, 8 F.3d at 836. Here, no provision in a collective-bargaining agreement between the Respondent and the Union covered the subject of layoffs. As explained, the Union never agreed to the layoff provision in the Respondent’s handbook. We see no judicial authority for the proposition that the “contract coverage” standard could apply in the absence of a negotiated contract. Second, even if the layoff provision in the handbook could somehow be treated as a contract, it simply addresses how employees are selected for layoff. As the District of Columbia Circuit has explained, under the “contract coverage” standard, “where the employer acts pursuant to a claim of right under the parties’ agreement, the resolution of the refusal to bargain charge rests on an interpretation of the contract at issue,” and “‘whether there is a duty to bargain depends solely upon what the contract means.’” U.S. Postal Service, supra, 8 F.3d at 836. We conclude, as a matter of contract interpretation, that the handbook provision addressing the selection of employees for layoff cannot be read to authorize the Respondent to refuse to bargain with the Union over the effects of such layoffs on the employees who are selected.6
The National Labor Relations Board orders that Respondent, Tramont Manufacturing, LLC, Milwaukee, Wisconsin, its officers, agents, successors,...
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