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,
Eugene Iovine, Inc. and Local
September 30, 2008
SUPPLEMENTAL DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On August 31, 2006, Administrative Law Judge David I. Goldman issued the attached supplemental decision. The Respondent filed exceptions and a supporting brief.
The National Labor Relations Board1 has considered the supplemental decision2 and the record in light of the exceptions and brief3 and has decided to affirm the judge’s rulings, findings, and conclusions as modified and to adopt the recommended Order as modified and set forth in full below.4
The judge found, and we agree, that the Respondent violated Section 8(a)(5) and (1) of the Act by laying off employees without providing the Union timely notice and an opportunity to bargain over the layoffs. In making that finding, the judge rejected the Respondent’s affirmative defense that it was merely adhering to a consistent past practice of unilaterally implementing layoffs in response to work- or weather-related delays on its construction projects. We agree with the judge’s rejection of that defense but only for the following reason.
The judge found that, even if the Respondent had a
practice of unilaterally implementing layoffs prior to the Union’s
certification (in February 1993), the Respondent failed to establish that it
had continued that practice over the nearly 4 years between the certification
and the layoffs at issue here, which began in December 1996. The Respondent’s president testified that it
had unilaterally laid off employees “from 1971 to when this issue arose in
1998.” He offered few specifics,
recounting only that such layoffs could have occurred as a result of inclement
weather, failure of other trades to complete their work, and, in the case of
the
The party asserting the existence of a past practice bears the burden of proof on the issue and the evidence must show that the practice occurred “with such regularity and frequency that employees could reasonably expect the ‘practice’ to continue or reoccur on a regular and consistent basis.” Sunoco, Inc., 349 NLRB 240, 244 (2007); Philadelphia Coca-Cola Bottling Co., 340 NLRB 349, 353 (2003), enfd. mem. 112 Fed. Appx. 65 (D.C. Cir. 2004). The record here falls short of such a showing. Absent evidence of when or how frequently or under what circumstances the asserted unilateral layoffs occurred, both before and after February 1993, we cannot conclude that the Respondent has demonstrated that the challenged layoffs were permitted as a continuation of an established past practice. See Eugene Iovine, Inc., 328 NLRB 294, 294 (1999), enfd. mem. 1 Fed. Appx. 8 (2d Cir. 2001) (finding that the Respondent failed to provide sufficiently specific evidence to establish a past practice of reducing hours). In view of the foregoing, we find it unnecessary to pass on the judge’s discussion of whether a past practice based on the acquiescence of a prior union can be relied on to unilaterally impose changes on a new union.5
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified and set forth in full below
and orders that the Respondent, Eugene Iovine, Inc.,
1. Cease and desist from
(a) Laying off employees for economic reasons in the bargaining unit represented exclusively by Local 3, International Brotherhood of Electrical Workers, AFL–CIO, without providing the Union timely notice and an opportunity to bargain about the decision to lay off employees and the effects of the layoff. The bargaining unit is:
All electricians, electrical maintenance mechanics, helpers, apprentices and trainees employed in the electrical field who are employed by employer-members of the United Electrical Contractors Association, a/k/a United Construction Contractors Association, but excluding all office clerical employees, guards and supervisors as defined in the Act.
(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Before laying off bargaining unit employees for
economic reasons, notify and, on request, bargain with the
(b) Within 14 days from the date of this Order, to the extent that it has not already done so, offer the following employees and other similarly situated employees immediate reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed:
William Alleyne
John Betancourt Greg
Hugh Oakley
Peter Capasso Lenford
Leslie Thomas Mike Matone Salvatore DePetro
Anthony Longo Wayne Munyon Clifford Pelzer
Charlie Sarullo Phil Spannagel William Grady
Gary Schulz Ararson Medrano Louis Cordero
Ed Wellington Phil Nola Russell Sausa
Allen Tu Mario Thalassinos John Siano
Jose LaSalle Glen Lillibridge Robert Lock
Edward Shane Richard Zeller Derrick Robinson
(c) Make whole the unit employees named above in subparagraph 2(b), and other similarly situated employees, for any loss of earnings and other benefits they may have suffered as a result of the Respondent’s unlawful conduct, in the manner set forth in the remedy section of the judge’s decision, as amended.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in
(f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
Peter C. Schaumber,
Chairman
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not lay off employees in the bargaining unit represented exclusively by Local 3, International Brotherhood of Electrical Workers, AFL–CIO for economic reasons without providing the Union timely notice and an opportunity to bargain about the decision to lay off employees and its effects. The bargaining unit is:
All electricians, electrical maintenance mechanics, helpers, apprentices and trainees employed in the electrical field who are employed by employer-members of the United Electrical Contractors Association, a/k/a United Construction Contractors Association, but excluding all office clerical employees, guards and supervisors as defined in the Act.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above.
We will,
before laying off bargaining unit employees for economic reasons, notify and,
on request, bargain with the
We will, within 14 days from the date of this Order, to the extent that we have not already done so, offer the following employees and other similarly situated employees immediate reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed:
William Alleyne
John Betancourt Greg
Hugh Oakley
Peter Capasso Lenford
Leslie Thomas Mike Matone Salvatore DePetro
Anthony Longo
Charlie Sarullo Phil Spannagel William Grady
Gary Schulz Ararson Medrano Louis Cordero
Ed Wellington Phil Nola Russell Sausa
Allen Tu Mario Thalassinos John Siano
Jose LaSalle Glen Lillibridge Robert Lock
Edward Shane Richard Zeller Derrick Robinson
We will make the employees listed above, and other similarly situated employees, whole for any loss of earnings and other benefits suffered as a result of their unlawful layoff, plus interest.
Eugene Iovine, Inc.
Kathy Drew King, Esq., for the General Counsel.
Steven
Goodman, Esq., of
Vincent
McElroen, of
SUPPLEMENTAL DECISION
Statement of
the Case
David I. Goldman, Administrative Law Judge. Pursuant to charges filed by Local Union No.
3, International Brotherhood of Electrical Workers (the
The consolidated complaints allege that Respondent
Eugene Iovine, Inc. (Iovine) laid off employees between December 1996 and May
1998 without providing Local 3—which was the employees’ certified bargaining
representative—sufficient and timely notice to afford the
This case was tried in
Findings of
Fact
i. jurisdiction
Iovine, a corporation, provides electrical
contracting services to other business firms and government entities at jobsites
in the
ii. unfair
labor practices
Facts
Respondent performs electrical contracting
primarily on public works projects within
In approximately 1971, Iovine, along with and
as a member of the Association, entered into a collective-bargaining contract
with Local 363 of the International Brotherhood of Teamsters (Local 363). Local 363 represented Iovine bargaining unit
employees for many years thereafter and was signatory to a succession of
collective-bargaining agreements with the Association covering, among others,
Iovine employees. Pursuant to those
contracts, Iovine and Local 363 had an understanding that the layoff of
employees did not require Iovine to notify Local 363 or to bargain over the
decision to lay off employees, or over the effects of the layoff. The agreement with Local 363 was that in
layoff situations Iovine’s only notification obligation was to notify the
benefit funds covering the laid-off employee.
Iovine would do this by sending a card (e.g., R. Exh. 1) to the
administrator of the Local 363 funds, which included a health and welfare fund,
an annuity fund, a pension fund, and an education fund. At no time during the years that it represented
Iovine employees did Local 363 ever request bargaining over layoffs.
After an October 18, 1989 election, Charging
Party Local 3 was certified on February 23, 1993, as the collective-bargaining
representative of the bargaining unit employees of the Association’s member employers,
including Iovine. The bargaining unit
consisted of:
All electricians, electrical maintenance mechanics, helpers, apprentices and trainees employed in the electrical field employed by the employer-members of [the Association], but excluding all office clerical employees, guards and supervisors defined in the Act.
The Association unsuccessfully challenged this
certification and bargaining for a labor agreement commenced in October
1994. As of the date of the hearing in
this case, no collective-bargaining agreement had been reached between the parties.
In December 1996 through May 1998 Respondent
unilaterally laid off certain bargaining unit employees. On December 6, 1996, Respondent laid off
employee William Alleyne. On January 3,
1997, Respondent laid off employee Hugh Oakley.
Iovine did not provide the
On December 19, 1997, Respondent laid off employee
Leslie Thomas. Respondent concedes (R.
Br. at 5 fn. 3) that no notice of Thomas’ layoff was ever provided to the
In the months after Alleyne and Oakley were
laid off, charges were filed over the layoffs and Iovine learned that the Board’s
Regional Director intended to issue a complaint based on the charges. Without intending to prejudice its position
that it had “no obligation to notify [the Union] concerning layoffs” (see,
e.g., GC Exhs. 4, 8, 9 15, 17, 19, 21, and 24), Respondent altered its practice
and began to provide notice of the layoffs to the
In response to the layoff notices sent by
Respondent, Local 3 requested bargaining regarding the layoffs and made informa-tion
requests. (GC Exhs. 3, 6, 7, 16, 18, 20,
22, and 25.) Respondent’s president,
Eugene Iovine, testified that he understood that Local 3 wanted to bargain over
the decision to lay off employees. (Tr.
89–90.)
Eugene Iovine testified that in the
construction industry layoffs may be economically warranted for a number of
reasons that develop on short notice.
For instance, this can happen when employees are working outside and
inclement weather delays a job. In
addition, Iovine described Respondent’s electrical contracting work as a “following
trade” which, he explained, was a trade that could begin its work on a project
only once other trades, such as carpenters, plumbers, and HVAC workers had
completed or reached certain stages in their work on a project. If the other trades failed to complete their
work on schedule that could mean that Respondent would not have work available as
scheduled and Respondent might look to lay off employees. Iovine also described a problem that could
arise if the
The decision to lay off employees is made by
the foreman on the job. As Respondent’s
counsel explained, “[T]here are a whole lot of factors that go into what causes
layoffs at a construction site.” (Tr. 39.)
Generally, if employees arrive at work and find that a scheduled job is
not ready, the foreman keeps the employees for the day and finds something for
them to do until the job is ready. Based
on the circumstances, the foreman will decide “whether they were coming back
the next day, or the next week or whatever.”
(Tr. 94.) When jobs are temporarily
shut down, sending employees to other worksites is a common alternative to
layoffs.[4] If it appears that the scheduled job will not
be ready for “any period of time,” and there is no other work for employees, “the
foreman would say, hey, they’re not going to be back, I don’t need them” and
the foreman would call the office and initiate a layoff. (Tr. 86–87, 94.) Eugene Iovine could not recall the specific
reasons for any of the layoffs at issue in this case, but he agreed that they
occurred because work was unavailable for one of the reasons described in his
testimony. (Tr. 84–85.)
iii. discussion
and analysis
The general outline of the relevant law is
well settled. During negotiations for a
collective-bargaining agreement an employer may not make unilateral changes in
mandatory subjects of bargaining without first bargaining to a valid impasse.
NLRB v. Katz, 369
The decision to lay off employees for economic
reasons is a mandatory subject of bargaining, and therefore subject to the
requirement of timely advance noticed required by the Act for good-faith
bargaining to impasse. McClain E-Z Pack, Inc., 342 NLRB 337
(2004) (“Decisions to conduct economically motivated layoffs are mandatory subjects of bargaining”); Toma Metals, Inc., supra; Tri-Tech,
Services, 340 NLRB 894, 895 (2003) (“It is well established that the layoff
of unit employees is a change in terms and conditions of employment over which
an employer must bargain”); Ebenezer Rail
Car Services, 333 NLRB 167 (2001).
As the Seventh Circuit has explained, “Layoffs are not a management
prerogative. They are a mandatory
subject of collective bargaining. Until
the modalities of layoff are established in the agreement, a company that wants
to lay off employees must bargain over the matter with the union.” NLRB v.
Advertisers Mfg., Co., 823 F.2d 1086, 1090 (7th Cir. 1987), enfg. in
relevant part Advertisers Mfg. Co., 280
NLRB 1185 (1986).
The effects of a layoff are also a mandatory
subject of bargaining, largely without regard to the cause for the layoff. As with decisional bargaining, effects
bargaining also requires an employer to provide the union with notice of
layoffs before they occur in order to satisfy the employer’s duty to bargain
over the effects of the layoffs. Kajima Engineering & Construction,
331 NLRB 1604, 1620 (2000); Geiger
Ready-Mix Co. of Kansas City, 315 NLRB 1021, 1021 fn. 8 (1994), enfd. 87
F.3d 1363 (D.C. Cir. 1996). The duty to
bargain over the decision to lay off employees includes the duty to bargain
over the effects of the layoffs. Toma Metals, supra, citing Clements Wire, 257 NLRB 1058, 1059
(1981).
Here, Respondent was engaged in collective
bargaining with the Union for a new contract, but, not only did Respondent
unilaterally implement layoffs without reaching an overall bargaining impasse,
it did not provide the
Respondent’s Defenses
Iovine does not dispute the general
applicability of the cited principles.
However, Iovine contends that under the circumstances presented here,
its conduct is not violative of the Act.
Respondent contends that it had no duty to
bargain with Local 3 over the layoffs because its conduct was a continuation of
the status quo undertaken pursuant to a longstanding past practice that it is
privileged (and presumably Iovine believes it is required) to continue until changed through collective bargaining. Respondent argues, very broadly, that “employer
responses to economic conditions do not constitute a violation if consistent
with past practice.” Iovine relies on
Board cases holding that, while a unilateral change in conditions of employ-ment
during negotiations is a violation of the Act, a “unilateral change made
pursuant to a longstanding practice is essentially a continuation of the status
quo—not a violation of Section 8(a)(5).”
Courier Journal, 342 NLRB
1093, 1094 (2004). In this regard,
Respondent points out that from 1971 until Local 3 replaced Local 363 as the
Iovine employees’ collective-bargaining representative, the agreement and practice
with Local 363 was that Iovine did not have to notify Local 363 or to bargain
over layoffs.[5]
A difficulty with this argument is that if
Respondent has shown such a past practice with Local 363, it has not shown one
with Local 3, which is the union that has been the Iovine employees’ certified
collective-bargaining representative since February 1993, and recognized as
such by Iovine since October 1994. In an
earlier case involving these parties, Eugene
Iovine, Inc., 328 NLRB 294 (1999), enfd. 1 Fed. Appx. 8 (2d Cir. 20001),
the parties stipulated that Respondent’s collective-bargaining relationship
with Local 363 ended in 1992. 328 NLRB
at 296. Respondent points out that there
is no evidence that Local 3 ever requested bargaining over layoffs prior to
filing the charges in the instant cases, but, in fairness, there is no evidence
that it needed to and the record is devoid of evidence from which a past
practice regarding layoffs with Local 3
can be established.[6] The layoffs at issue in this case occurred
December 1996 through May 1998. Thus,
Iovine relies upon a past practice, the evidence of which is nonexistent for
the 2 years after its recognition of Local 3, for the 3-1/2 years since Local 3’s
certification, for 4 years since its collective-bargaining relationship ended
with Local 363 (not to mention the 5 years since Local 3’s selection by the bargaining
unit employees). A past practice is not
part of the “status quo” because it happened in the past, lay dormant, and an employer
seeks to revive it to privilege unilateral changes undertaken years later.
Apart from the failure in this case to show a
past practice with Local 3, there is the question of whether a past practice
based on acquiescence of a predecessor union can be relied upon to impose
unilateral changes on a new union. In Courier Journal, supra, the Board
reaffirmed that a unionized employer’s past practice of unilateral changes may
constitute part of the status quo, and therefore an exception to the duty to bargain
over unilateral changes. However, in
doing so, the Board distinguished the situation of a past practice established
with the acquiescence of a predecessor union.
The distinction drawn by the Board in this regard is all the more
striking because the Board referenced this
Respondent and this bargaining unit in making the point. In Courier
Journal, the Board held that an employer’s 10-year practice, with the
acquiescence of the union, of regularly making unilateral changes in employees’
health care program to mirror changes made to the program covering nonunit
employees, privileged the employer to continue this practice until the parties
bargained to impasse over the subject.
328 NLRB at 1094. In reaching its
conclusion, the Board explained that [t]he significant aspect of this case is
that the
that case, the past practice of acquiescence was under a different union. Thus, the current union never acquiesced in unilateral changes. Similarly, NLRB v. Katz, supra, holds that a newly certified union is not bound to the employer’s wholly discretionary pay increases prior to certification.
342 NLRB at 1094. See also Eugene Iovine, 328 NLRB at 296.
Thus, looking to the very situation at issue
here, the Board in Courier Journal cabined application of the past
practice doctrine to justify unilateral action by distinguishing situations
where the past practice is based on the acquiescence of a prior union but the “current
union never acquiesced in unilateral changes.”[7]
This result makes sense. While the Board in Courier Journal explained that the past practice exception “is not
grounded in waiver,” the Board held that “the
significant aspect of this case is that the
Iovine cites one case, University of Pittsburgh Medical Center, 325 NLRB 443 (1998), enfd.
mem. 182 F.3d 904 (3d Cir. 1999), involving an employer’s defense to a unilateral
change allegation that was based on a past practice developed with a predecessor
union. However, in that case the Board
rejected the employer’s defense. Iovine
cites the Board’s finding that even after a new union was certified, supervisors
hired in the past—with the agreement of a predecessor union—to perform jobs
that included bargaining unit work could continue to perform their jobs as they
had for many years. However, the practice
of performing work that had been removed long ago from the bargaining unit was
not an issue in the case. The Board
distinguished that practice from the issue that was in dispute: the Board found
that the employer could not “remove more bargaining unit work from the unit by
creating new supervisory positions to perform such work without bargaining with
the Charging Party.” In other words, the
maintenance of daily work assignments by supervisors and employees based on a removal
of bargaining unit work that occurred many years ago was not alleged by the
General Counsel to be a new unilateral change in terms and conditions of employment. However, the attempt to add more supervisors
to perform more bargaining unit work (of exactly the same type already
performed by the previously hired supervisors) was a new unlawful unilateral
change, just as in the instant case, each additional layoff constitutes a new
unilateral change for the formerly working but now laid off employee. Thus, University
of Pittsburgh Medical Center is consistent with the proposition in Courier Journal that once a new union is
certified prospective unilateral changes cannot be privileged based on
practices developed with a prior union.[9]
Finally, even without the barrier to
Respondent’s past practice argument posed by the interposition of a new union,
it would be inappropriate under the circumstances to find that its layoffs were
a past practice that could be implemented without bargaining. In NLRB
v. Katz, the Supreme Court rejected the employer’s past practice defense to
unlawful unilateral implementation of wage raises despite the “the fact that
the [ ] raises were in line with the company’s
long-standing practice of granting quarterly or semiannual merit reviews––in
effect, were a mere continuation of the status quo.” The Court reached its conclusion because “the
raises here in question were in no sense automatic, but were informed by a
large measure of discretion.” 369
Whether a change is a
permissible continuation of the status quo turns on the degree of discretion
involved. Thus, in NLRB v.
Katz, supra at 369
There simply is no way in such case for a union to know whether or not there has been a substantial departure from past practice, and therefore the union may properly insist that the company negotiate as to the procedures and criteria for determining such increases.
Similarly, in Garment Workers v. Local 512 v. NLRB, [795 F.2d 705, 711 (1986)], the 9th Circuit rejected an employer’s contention that certain layoffs were lawful because in accordance with established policy. The court noted that economic layoffs “would seem to be inherently discretionary” and that . . . the “long-standing practice” exception suggested in Katz placed a heavy burden on the employer to show an absence of employer discretion in determining the size or nature of a unilateral employment change.
Based on the testimony of Respondent’s
president, it is apparent that the layoffs at issue in this case—while a feature
of Respondent’s business, and indeed, the construction industry, and based on
considerations beyond Respondent’s control such as the weather and the progress
of other entities in performing assigned work—involve a significant degree of
discretion on the part of Respondent’s foremen, discretion exercised on an ad
hoc basis in each layoff situation.
According to the testimony, it is the foremen who assess each situation
and determine whether and when to contact Respondent’s office to initiate a
layoff of employees. Respondent bears
the cost of work delays for at least the first day, and pays its employees for
showing up for work that day. The
foremen then assess whether the delay will likely continue, whether there is
other work available, and ultimately,
whether a layoff is economically warranted in a particular case. That the prospect of incurring significant
costs with no work for employees militate in favor of layoffs—countervailing
considerations include having the employees, many of whom are skilled and have
the right to seek other work while on layoff, available for upcoming skilled
work—makes the decision more not less amenable to collective bargaining. Thus, quite apart from the fact that in this
case no past practice with Local 3 can be established, even without that factor
I would not find that Respondent’s decisions to lay off employees is immune
from bargaining. Respondent’s argument
is essentially no different than that considered and rejected by the Board in Eugene Iovine, Inc., 328 NLRB at 294,
with regard to Iovine’s claim in that case that it was free to unilaterally
reduce employee hours. The Board
explained:
[a]s the judge found .
. . there was no “reasonable certainly” as to the timing and criteria for a
reduction in employee hours; rather, the employer’s discretion to decide
whether to reduce employee hours “appears to be unlimited.” The Board and the courts have consistently
held that such discretionary acts are, as stated by the judge, “precisely the
type of action over which an employer must bargain with a newly-certified
In this case, each decision to lay off
employees requires foremen to exercise similar discretion to determine whether
a layoff is warranted. It is precisely
the type of employer action to which the statutory duty to bargain applies.[11]
Respondent also contends that its policy of
unilaterally laying off employees does not violate the Act because the layoffs
are based on “compelling economic considerations” that exempt Respondent from the duty to bargain
over layoffs.
Respondent’s argument, which would appear to
apply generally to the construction industry, is founded on the recognition in
Board cases such as RBE Electronics,
320 NLRB 80 (1995), and Bottom Line
Enterprises, 302 NLRB 373 (1991), that “there are certain compelling
economic considerations that the Board has long recognized as excusing
bargaining entirely about certain matters.”
RBE Electronics, supra at
81. Respondent bears a “heavy burden”[12]
in making this defense, as “[t]he Board has limited its definition of these
considerations to ‘extraordinary events which are an unforeseen occurrence,
having a major economic effect [requiring] the company to take immediate
action.’” RBE Electronics, supra at 81, quoting Hankins
Lumber Co., 316 NLRB 837, 838 (1995) (Board’s bracketing) (internal
quotations omitted). “Absent a dire
financial emergency, the Board has held that economic events such as loss of
significant accounts or contracts, operation at a competitive disadvantage, or supply
shortages do not justify unilateral action.”
RBE Electronics, supra at 81
(footnotes omitted).
Iovine attempts to jettison the duty to
bargain over layoffs based on the fact, discussed supra, that in the
construction industry the ability to perform work is subject to unpredictable
events such as inclement weather, the failure of other contractors to timely
perform their portion of a construction project, and the unexpected lack of
support services. Because of the obvious
cost to the employer of paying employees for “just hanging around” (Tr. 70), Respondent’s
foremen will order a layoff of employees if the delay and lack of other work
make the layoff economically warranted.
Notably, the 18-month period spanned by the complaint allegations in
this case involve layoffs occurring on a total of 11 days. As discussed, supra, there is no evidence
that layoffs occurred at all in the initial years after Local 3 became the
bargaining representative, and the stipulated finding in Eugene Iovine, Inc., 328 NLRB at 296, 297, is that reassignment of
employees to other jobsites was a common alternative to layoffs. Thus, unanticipated interruptions requiring
layoffs are not so common that they are occurring every day, or week, month, or
even every year.
Respondent’s argument, which if accepted would
vitiate the duty to bargain over layoffs in this case, the construction industry
generally, and any other industry where production and work opportunities are
subject to occasional interruption, does not satisfy the Board’s requirements
as discussed in RBE Electronics. See Mackie
Automotive Systems, 336 NLRB at 349 (“Respondent cites no case in support
of its proposition that the reduced demands of an employer’s customer—even its
only customer—permit the employer simply to skip bargaining with its employees’
collective-bargaining representative and to unilaterally change its employees’
terms and conditions of employment.
Thus, we also agree with the judge that the fact that this unilateral
change was prompted by a bona fide scheduling change implemented by [respondent’s
sole customer] does not excuse the Respondent from its obligation to bargain
with the Union.”).
The layoffs that Respondent feels compelled to
undertake are, by Respondent’s own description, a predictable characteristic of
its work environment. The need for any
particular layoff may arise in short order but the general issue can be and is
anticipated by Respondent, and is eminently suitable to collective
bargaining. It is not unreasonable to
expect Respondent to bargain in advance for an arrangement that deals generally
with Respondent’s obligations when laying off employees. And even the specific layoffs, which are
undertaken at a foremen’s discretion, could be delayed for at least some period
of time while Respondent notifies and offers the
Notably, the expense to Respondent of delaying
layoffs so that bargaining could occur is described by Respondent as an expense
in wages and benefits, subjects, of course, that are central to the duty to
bargain. A union that could not accommodate
an employer’s legitimate economically motivated desire to order sudden layoffs
might find that the added cost to the employer would one day be incorporated
into a proposal for wage and benefit reductions. But—based on first principles—that is not a
choice that the Board should make for a union or employer. One can imagine a union being willing to
sacrifice wages and benefit premiums to ensure full employment for its members. On the other hand, a union might well (as
Local 363 apparently did) seek an agreement that permits the employer
flexibility with regard to layoffs in exchange for other bargaining
objectives. But it does not comport with
Act’s indifference toward substantive outcomes of bargaining to remove layoffs
from the ambit of collective bargaining because of the added wage and benefit
costs that employers may incur from having to take time to bargain over
layoffs. Employers and unions can
negotiate a solution to this problem as they do in other areas relating to
wages, hours, and terms and conditions of employment.
Finally, Respondent also contends that, even
if it had a duty to notify and bargain with Local 3 regarding its decision to
lay off employees, the notice it gave (in those instances where it provided notification)
was adequate under the circumstances prevailing in its industry. In other words, Respondent contends that if
the circumstances of the construction industry do not exempt it altogether from
bargaining over the decision to lay off employees, they permit notification as
a fait accompli. This argument misconstrues
the point of the statutory duty to bargain which, as discussed supra, is
thwarted by presentation to the union of a fait accompli on the issue to be
bargained. Even when the Board requires
a union to accommodate economic exigencies faced by an employer and bargain in
haste (RBE, supra at 82), notice
after-the-fact is inadequate. As the
Seventh Circuit explained in Advertisers
Mfg., supra at 1090:
The rule that requires an employer to negotiate with the union before changing the working conditions in the bargaining unit is intended to prevent the employer from undermining the union by taking steps which suggest to the workers that it is powerless to protect them. . . . Laying off workers works a dramatic change in their working conditions (to say the least), and if the company lays them off without consulting with the union and without having agreed to procedures for layoffs in a collective-bargaining agreement it sends a dramatic signal of the union’s impotence.
Acceptance of Respondent’s argument would vitiate
the duty to bargain and in that sense it is a repackaged version of Respondent’s
assertion that it has no duty to bargain.
I reject the contention that Respondent’s duty to bargain over layoffs
is limited to a duty to provide the union with a fait accompli for the same
reasons I reject its claim that it has no duty to bargain over layoffs.
Respondent has violated Section 8(a)(1) and
(5) of the Act, as alleged, by laying off bargaining unit employees without
providing advance notice to the Union to afford it a meaningful opportunity to
bargain over the layoffs.
Conclusions of
Law
1. Respondent is, and has been at all material
times, an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The
3. At all times since February 23, 1993, the
All electricians, electrical maintenance mechanics, helpers, apprentices and trainees employed in the electrical field who are employed by employer-members of the United Electrical Contractors Association, a/k/a United Construction Contractors Association, but excluding all office clerical employees, guards and supervisors as defined in the Act.
4. By unilaterally laying off bargaining unit
employees without timely notifying the Union
and providing a meaningful opportunity to bargain over the decision to
lay off employees and the effects of the layoffs, Respondent has engaged in
unfair labor practices affecting commerce within the meaning of Section 8(a)(1)
and (5) of the Act.
5. The unfair labor practices committed by
Respondent affect commerce within the meaning of Section 2(6) and (7) of the
Act.
Remedy
Having found that the Respondent has engaged
in certain unfair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectuate the
policies of the Act. Respondent shall be
ordered to provide advance notice to its employees’ bargaining representative
of layoffs undertaken for economic reasons, and upon request, to bargain over
decisions to lay off employees, and to bargain over the effects of such layoffs,
and to the extent it has not already done so, Respondent shall offer the
following employees and other similarly situated employees immediate reinstatement
to their former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
William Alleyne John Betancourt Greg
Hugh Oakley Peter Capasso Lenford
Leslie Thomas Mike Matone Salvatore DePetro
Anthony Longo Wayne Munyon Clifford Pelzer
Charlie Sarullo Phil
Spannagel William Grady
Gary Schulz Ararson Medrano Louis
Cordero
Ed Wellington Phil Nola Russell Sausa
Allen Tu Mario Thalassinos John Siano
Jose LaSalle Glen Lillibridge Robert
Lock
Edward Shane Richard Zeller Derrick
Robinson
Respondent shall be ordered to make whole
these employees and other similarly situated employees for any loss of earnings
or other benefits they may have suffered by reason of the Respondent’s unlawful
layoff of employees, to the date of reinstatement, in the manner prescribed in Ogle Protection Services, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus interest as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
Respondent contends that the remedy in this
case for any violation found should be analogous to the limited back pay remedy
ordered in Transmarine Navigation Corp.,
170 NLRB 389 (1968). However, in cases,
such as the instant case, involving a violation of the duty to bargain over the
decision to undertake layoffs, the Board has consistently rejected such arguments. Pan
American Grain Co., 343 NLRB 318 (2004) (rejecting limited Transmarine remedy for the failure to
bargain over the decision to lay off employees and finding “that the full
backpay and reinstatement remedy is appropriate”);[13] Plastonics, Inc., 312 NLRB 1045 (1993) (“The
traditional and appropriate Board remedy for an unlawful unilateral layoff
based on legitimate economic concerns includes requiring the payment of full
backpay, plus interest, for the duration of the layoff.”); Lapeer Foundry, 289 NLRB at 955–956; Wilen Mfg., 321 NLRB 1094, 1100 (1996). Respondent’s argument, essentially that the
injury was a delay in receiving notice of the layoffs, misconceives the
violation. As the Board in Porta-King Building Systems, 310 NLRB
539–540 (1993), explained,
had the Respondent
acted lawfully, it would have provided the
On these findings of fact and conclusions of
law and on the entire record, I issue the following recommended[14]
Order
The Respondent, Eugene Iovine, Inc.,
1. Cease and desist from
(a) Unilaterally laying off employees for
economic reasons in the bargaining unit represented by Local 3, International
Brotherhood of Electrical Workers, AFL–CIO, the exclusive representative of the
employees, without providing the
All electricians, electrical maintenance mechanics, helpers, apprentices and trainees employed in the electrical field who are employed by employer-members of the United Electrical Contractors Association, a/k/a United Construction Contractors Association, but excluding all office clerical employees, guards and supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action which
is necessary to effectuate the polices of the Act.
(a) Before implementing any layoff of
bargaining unit employees for economic reasons notify and, on request, bargain
with Local Union No. 3, International Brotherhood of Electrical Workers, AFL–CIO
as the exclusive collective-bargaining representative of employees in the
bargaining unit, over the layoff decision and the effects of the layoff.
(b) Within 14 days from the date of this
Order, to the extent that it has not already done so, offer the following employees
and other similarly situated employees immediate reinstatement to their
former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed:
William Alleyne John
Betancourt Greg
Hugh Oakley Peter Capasso Lenford
Leslie Thomas Mike
Matone Salvatore DePetro
Anthony Longo
Charlie Sarullo Phil
Spannagel William Grady
Gary Schulz Ararson
Medrano Louis
Cordero
Ed Wellington Phil
Nola Russell Sausa
Allen Tu Mario Thalassinos John Siano
Jose LaSalle Glen Lillibridge Robert
Lock
Edward Shane Richard Zeller Derrick Robinson
(c) Make whole the unit employees named above
in subparagraph 2(b), and other similarly situated employees, for any loss of
earnings and other benefits they may have suffered as a result of Respondent’s
unilateral lay off of employees without providing the Union with timely notice
and an opportunity to bargain about the decision to lay off employees, in the
manner set forth in the remedy section of the decision.
(d) Preserve and, within 14 days of a request,
or such additional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or its agents, all
payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Within 14 days after service by the
Region, post at its facility in
(f) Within 21 days after service by the
Region, file with the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the steps that the Respondent
has taken to comply.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not lay off of you in the bargaining unit for economic
reasons without first giving notice to Local 3, International Brotherhood of Electrical
Workers, AFL–CIO, and providing Local 3 with an opportunity to bargain about
the layoff decision and its effects. The bargaining unit is:
All electricians, electrical maintenance mechanics, helpers, apprentices and trainees employed in the electrical field who are employed by employer-members of the United Electrical Contractors Association, a/k/a United Construction Contractors Association, but excluding all office clerical employees, guards and supervisors as defined in the Act.
We will not in any like or related manner interfering
with, restraining, or coercing employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
We will notify and on request bargain with Local Union
No. 3, International Brotherhood of Electrical Workers, AFL–CIO before we
implement a layoff of any of you for
economic reasons.
We will, within 14 days from the date of this Order, to
the extent that it has not already done so, offer the following employees and
other similarly situated employees immediate reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privileges
previously enjoyed and we will make
them whole for any loss suffered as a result of their unlawful layoff.
William Alleyne John
Betancourt Greg
Hugh Oakley Peter Capasso Lenford
Leslie Thomas Mike
Matone Salvatore DePetro
Anthony Longo
Charlie Sarullo Phil
Spannagel William Grady
Gary Schulz Ararson
Medrano Louis
Cordero
Ed Wellington Phil
Nola Russell Sausa
Allen Tu Mario Thalassinos John Siano
Jose LaSalle Glen Lillibridge Robert
Lock
Edward Shane Richard Zeller Derrick Robinson
Eugene Iovine,
Inc.