Pennsylvania State Corrections Officers Association

National Labor Relations Board - Administrative Judge Opinions

May 23, 2014

04-CA-037648 (N.L.R.B. May. 23, 2014)

JD–24–14
Harrisburg, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
PENNYSLVANIA STATE CORRECTIONS
OFFICERS ASSOCIATION
and Cases 04–CA–37648
04–CA–37649
BUSINESS AGENTS REPRESENTING STATE 04–CA–37652
UNION EMPLOYEES ASSOCIATION
David Rodriguez, Esq.
for the General Counsel.
Michael McAuliffe Miller, Esq.
(Eckert, Seamans, Cherin & Mellott)
for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. The hearing in this compliance
matter was held on April 14, 2014, in Philadelphia, Pennsylvania. The compliance specification,
as revised, sets forth alleged monies due former employees Lee Dyches, Shawn Hood, Patricia
Hurd, John Miller and Bill Parke (hereafter the claimants) under the Transmarine1 backpay
remedy ordered in the Board’s underlying decision in this case reported at 358 NLRB No. 19
(March 23, 2012). The compliance specification states that the Board’s order directed
Respondent to bargain with the Charging Party Union (hereafter the Union or BARSUEA) over
the effects of its decision to discharge2 the claimants and to pay them normal wages they would
have earned commencing five (5) days after the issuance of the order until the earliest of the
following conditions:
(1) the date that Respondent bargained to agreement with the Union over the
effects of the layoffs; (2) the date a bona fide impasse in effects bargaining
occurred; (3) the failure of the Union to request bargaining within five
business days after receipt of the Board’s Order, or to commence negotiations
within five business days after receipt of Respondent’s notice of its desire to
bargain with the Union; or (4) the Union’s subsequent failure to bargain in

1 Transmarine Navigation Corp., 170 NLRB 389 (1968).
2 The specification erroneously refers to the terminations as layoffs.
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2
good faith. The Board further ordered that, in no event, would the sum paid to
any of the claimants exceed the amount that any of them would have earned as
wages from the date of their layoffs to the time they each secured equivalent
employment; nor would the sum paid to the complaints be less than they 5
would have earned for a two week period as their normal wages when they
last were in Respondent’s employ, plus interest.
The compliance specification lists the claimants’ bi-weekly earnings at the time of their
discharges as follows: Dyches—$3,099.48; Hood—$3,194.52; Hurd—$3,145.25; Miller—10
$2860.57; and Parke—$3,158.12. The specification also alleged that the claimants were on
leaves of absence from their corrections officers jobs with the Commonwealth of Pennsylvania
(the Commonwealth) while they were employed by Respondent. By agreement with the
Commonwealth, a portion of their pay was paid by the Commonwealth and the remainder was
paid directly by Respondent, but Respondent reimbursed the Commonwealth for the portion it 15
paid. Their bi-weekly earnings set forth above include both portions of pay.
The compliance specification further alleges that none of the conditions specified in the
Board order occurred and that the back pay period ran 26 weeks from March 28, 2012 (5 days
after the Board order issued) until September 28, 2012, the approximate date on which the Union 20
that represented the claimants became defunct and was no longer able to bargain. As revised at
the hearing, the specification sets forth the gross backpay amounts for each claimant, less interim
earnings, resulting in a net back pay amount for each. The total amounts to some $57,000, plus
interest.3
25
Respondent filed an answer alleging that it had lawfully bargained to an impasse over the
amounts due, thus satisfying one of the key requirements of the Board’s order. It also asserted
that the Union was “essentially defunct and disclaimed any bargaining obligation prior to
September 28, 2012.” The answer admitted the bi-weekly earnings of the claimants set forth in
the compliance specification. It also admitted the portion of the specification set forth above 30
dealing with the pay of the claimants while they were on leaves of absence from their former
jobs. With specific reference to claimant Parke, the answer alleged that he voluntarily declined to
return to his former position as a correctional officer for the Commonwealth of Pennsylvania,
which he originally left to become an employee of Respondent, even though that opportunity
was available to him, as it was to other claimants who returned to their former positions. The 35
answer thus asserts that any backpay for him should be cut off as of the date he declined to return
to his former position.
The parties filed post-hearing briefs which I have read and considered.
40

3 The parties stipulated that the back pay calculations for Dyches, Hood, Hurd and Miller set forth in
the revised compliance specification are properly calculated. Respondent disputes the calculation as to
Parke because it contends that Respondent did not mitigate his back pay liability when he declined to
return to his former correction officer’s position. Respondent, however, agrees that, if its contention as to
Parke, is rejected, the back pay calculation for Parke is accurate.
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3
The Facts
Respondent represents some 11,000 corrections officers employed by the Commonwealth
of Pennsylvania. Respondent employs some 18 individuals who were represented by the Union.
Some of those individuals, including claimants, were former corrections officers. When they 5
were employed by Respondent, the claimants were on leaves of absences from their corrections
officer jobs. By agreement with the Commonwealth, a portion of their pay was paid by the
Commonwealth and the remainder was paid directly by Respondent, but Respondent reimbursed
the Commonwealth for the portion it paid. The claimants also accrued pension and leave credits
from the Commonwealth during their employment with Respondent. Tr. 35-36, 64-65.10
After their discharge by Respondent, all the claimants received letters, dated August 20,
2010, directing them to return to their original correctional institutions to resume their
employment there. Work was available for those individuals at their original correctional
institutions. Jt. Exh. 7. Parke was the only claimant who did not return to his former position as 15
a corrections officer. He voluntarily retired from his former position and accepted either a
pension or a lump sum settlement both from the Commonwealth and from Respondent. He did,
however, obtain other employment in another industry.4
Parke testified that when joined Respondent he left his corrections officer position in 20
Houtzdale, Pennsylvania, and moved to Mechanicsburg, Pennsylvania, nearer to his work site
with Respondent in Harrisburg. That was some two and a half hours drive away from Houtzdale.
He also testified that, before deciding to retire, he did not request a transfer from his former
corrections position to one closer to his home than his work site at Respondent. Such transfers
are readily available and permitted under the applicable collective bargaining agreement. Tr. 47-25
58.
On April 4, 2012, representatives of Respondent met with Larry Sonnie, the president of
the Union, to engage in effects bargaining pursuant to the Board’s decision of March 23, 2012.
This was the parties’ only face to face bargaining meeting. This meeting was initiated by 30
Respondent, whose representative contacted Sonnie. The Union apparently had no knowledge of
the Board’s decision and had not attempted to initiate effects bargaining. Tr. 19.
Respondent’s position was set forth in a letter to Sonnie, dated April 4. It offered to pay
the claimants two weeks pay without deductions for interim earnings, less one week’s pay35
claimants received at the time of their discharge for time they did not work for Respondent.
Those amounts would then, according to Respondent, be considered a credit against monies
allegedly received by claimants for improper mileage reimbursements during their employment.
Respondent has sued for the return of such mileage reimbursements in civil lawsuits against
Claimants Dyches, Hurd and Miller. Those lawsuits are still pending.540

4 The parties agree that, under the collective bargaining agreement between Respondent and the
Union, as well as pursuant to past practice, claimants were entitled to return to their former positions as
corrections officers. Tr. 15-16.
5 Respondent’s claims of invalid mileage reimbursement included an amount for Hood, but, according
to the stipulation of the parties, no lawsuit was filed against Hood to recover the mileage amounts he
apparently owed. The parties also stipulated that Parke was not accused of collecting invalid mileage
reimbursements.
JD–24–14
4
Union Vice President Lawrence Blackwell mailed a counteroffer to Respondent on April
10, 2012. The counteroffer was as follows: 2 weeks’ severance pay and all unused vacation or
leave paid back for Dyches, Hurd, Miller and Parke; and 2 weeks’ severance pay, 70 vacation
days, unpaid phone charges and 6 weeks’ of mileage reimbursement for Hood. Blackwell also 5
rejected the set off for mileage reimbursement because he contended that there was no proof that
it was invalidly claimed.
On April 11, 2012, Respondent rejected the Union’s counteroffer, giving reasons in
support of its position. It also stated that impasse in bargaining had occurred. The parties 10
stipulated that Respondent and the Union reached an impasse on April 11, 2012. It was also
stipulated that neither party made any other effort to contact the other to engage in further effects
bargaining.6
Sonnie and Blackwell retained their positions in the Union until September 28, 2012, 15
when all parties agree that the Union became defunct. Sonnie testified that he tried to reach out
to the claimants to determine their positions on the Respondent’s April 4 offer, but none of them
returned his calls. He then turned the matter over to Blackwell, who apparently was able to
make contact with at least one of the claimants. Tr. 26, 28, 39-40, 83. According to Sonnie,
between April 2012 and September 2012, the Union was “in a holding pattern” because a 20
petition to decertify the Union was filed with the Board’s Philadelphia regional office. He
testified that “nobody wanted to do anything because we didn’t know whether we were going to
be there or not.” Tr. 37.
A petition to decertify the Union was filed on January 26, 2012, with the Region 4 of the 25
Board in Philadelphia. Attached to the petition was a statement, signed by 11 of the 18
employees in the unit represented by the Union, that the signers no longer wanted the Union to
represent them. R. Exh. 5. On March 7, 2012, while the underlying case was still pending
before the Board, the regional director for Region 4 dismissed the decertification petition
because of the then-existing 2010 bargaining agreement whose validity was at issue in the 30
underlying case, “subject to reinstatement, if appropriate,” upon conclusion of the underlying
case. In fact, in the Board’s March 23, 2012 decision, the 2010 contract was declared invalid. R.
Exh. 7. But apparently no one asked for reinstatement of the decertification petition and no
election was held. Furthermore, as indicated above, the Respondent dealt with the Union in
effects bargaining in April 2012.35
Discussion and Analysis
There are several issues in this case: (1) Did the back pay period end on April 11, 2012,
when the parties were admittedly at impasse in their effects bargaining, as Respondent alleges, or 40
September 28, 2012, when the Union became defunct, as the General Counsel alleges? The
answer to that question turns on how one views Respondent’s conditions for agreement—that its
offer of 2 weeks’ back pay be set off by an earlier week’s pay to the claimants that was unearned
and by any amounts due to Respondent because of improper mileage reimbursements to

6 Respondent conceded that its position on mileage reimbursement, at least, was insisted upon to the
point of impasse. Tr. 16-17.
JD–24–14
5
claimants. The General Counsel asserts that these conditions were not mandatory subjects of
bargaining. Respondent says that they were. (2) If Respondent’s contention on the above
question fails, did the back pay period end at some point before September 28, as Respondent
contends, because the Union was essentially incapable of bargaining, mainly because of the
filing of a decertification petition, which was not promptly acted upon by the regional office? (3) 5
As to Parke, was Respondent’s back pay liability tolled because Parke, alone among the
claimants, voluntarily declined to return to his former position as a corrections officer, as
Respondent contends?
It is settled that a lawful impasse cannot exist if a party insists that any agreement include 10
a non-mandatory subject of bargaining—that is, a subject that does not “vitally affect” wages,
hours or terms and conditions of employment. See Cushman & Wakefield, Inc., 360 NLRB No.
10 (2013), slip op. 4, and cases there cited.
Here, it is clear that the parties were at impasse in bargaining over the effects of the 15
decision to discharge the claimants. It is Respondent’s position that the Board’s order in the
underlying case tolled back pay at the point that the parties were at lawful impasse. But it is also
clear that the Board’s order required a minimum of two weeks of back pay. Respondent offered
two weeks of back pay, but required that there be a set off against that amount of an earlier
payment of one week of pay that allegedly had been unearned and of whatever it alleged was 20
improper mileage reimbursement to some claimants during their employment. These conditions
were contrary to the minimum back pay remedy in the Board’s order. Insistence to impasse on a
position that derogates from a specific Board remedy amounts, in my view, to insistence on an
illegal subject of bargaining. See Chapter 16 VI. B. of The Developing Labor Law (Sixth
Edition, 2012). At the least, such a position does not constitute a mandatory subject, about 25
which the other party must bargain. Accordingly, I find that the impasse of April 11 was not a
valid impasse and the back pay period continued to run thereafter.7
Nor do I find that the Union was incapable of bargaining at any point before September
28, 2012, when it became defunct. Clearly, the Union was operative in April 2012 when 30
Respondent engaged with it in effects bargaining. Thus, any contention that the decertification
petition, which was filed in January 2012, made the Union incapable of bargaining must fail. No
election was held and thus the Union was still a viable entity, at least insofar as carrying out the
bargaining contemplated in the Board’s order in the underlying case. Moreover, Respondent
negotiated with the Union over effects bargaining, thus waiving any right to challenge its 35
representative status. See Fallbrook Hospital, 360 NLRB No. 73 (2014), slip op. 1 (employer
waived its right to challenge validity of a union’s certification by entering into negotiations with
that union).8

7 The briefs of the parties on this issue seem to joust on a separate point—whether seeking a set off
for mileage reimbursement, particularly in light of pending lawsuits against some but not all of the
claimants, amounts to a mandatory or permissive subject of bargaining. In view of my rationale for
finding no lawful impasse, set forth above, I need not address this point. But the General Counsel seems
to have the better of the argument since Respondent’s set off is comparable to conditioning agreement on
a general release of claims, which is a permissive, not a mandatory, subject of bargaining. See Borden,
Inc., 279 NLRB 396, 398-399 (1986).
8 As the General Counsel points out (Br. 15), the decertification petition was properly dismissed by
the region pending the outcome of the underlying case. The petition was not reinstated thereafter, and
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6
It is true that neither side requested a return to the bargaining table after April 11. But
that was because Respondent poisoned the well by insisting on improper conditions that caused
an impasse. Had it not wrongfully insisted on those conditions, contrary to the Board’s order,
the bargaining might well have gone forward. Thus, Respondent, like any wrongdoer, cannot 5
profit from any lack of bargaining from mid-April until the September 2012 date the Union
became defunct. I therefore reject the Respondent’s position and agree with the General
Counsel’s position that the back pay period runs until September 28, 2012.
The above applies to the claims of Dyches, Hood, Hurd and Miller. Parke is different 10
because I must consider the separate allegation that he failed to mitigate Respondent’s back pay
liability by not returning to his former employment with the Commonwealth of Pennsylvania, as
did the other claimants. See St. George Warehouse, 351 NLRB 961, 963 (2007).
I agree with Respondent that Parke failed to mitigate the back pay obligation to him. He 15
voluntarily retired from his former position and refused even to consider asking for a transfer to a
position nearer his home that was likely available. I reject the General Counsel’s attempt (Br.
18-20) to treat Parke’s former corrections officer position as the usual kind of interim
employment. That job was intrinsically intertwined with his position with Respondent. Parke’s
job as assistant grievance manager for Respondent was based to a great degree on his former 20
experience as a corrections officer since Respondent represents corrections officers. Moreover,
as indicated above, Parke was simply on leave of absence from his former position. Indeed, part
of his compensation from Respondent was paid by the Commonwealth. He also accrued pension
and leave credits from the Commonwealth during his employment with Respondent. And he had
an absolute right to return to his former position after his leave of absence was over. To 25
overlook these ties to his former position in determining the mitigation issue would provide
Parke with a windfall he does not deserve. Thus, in the particular circumstances of this case, I
find that Parke “willfully incurred” a loss by his “clearly unjustified” refusal to return to his
former employment. St. George Warehouse, above, quoting from applicable authorities.
30
I do not believe, however, that Parke is entitled to no back pay, as Respondent seems to
contend. He is entitled to the minimum 2 weeks of back pay set forth in the Board’s order in the
underlying case.
On these findings and conclusions, and on the entire record, I issue the following 35
recommended9

could not have been until after the Respondent’s violation (failure to engage in effects bargaining) was
appropriately remedied.
9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
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7
ORDER
The Respondent, its officers, agents, successors and assigns, shall pay the claimants the
amounts specified after their names below, plus interest accrued to the date of payment, as 5
prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010), minus tax withholdings
required by Federal and State laws.
Lee Dyches $9,646.2510
Shawn Hood $3,235.89
Patricia Hurd $11,755.23
John Miller $8,243.08
Bill Parke $3,158.12
15
Dated, Washington, D.C., May 23, 2014
20
_______________________
Robert A. Giannasi
Administrative Law Judge