Pratt Industries, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 30, 2011

29-CA-030271 (N.L.R.B. Aug. 30, 2011)

JD(NY)–31–11
Staten Island, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
PRATT INDUSTRIES, INC.
and Case Nos. 29-CA-30271
29-CA-30281
29-CA-30382
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 30
Nancy Reibstein, Esq. and Linda Tooker, Esq.,
Brooklyn, New York for the Acting General Counsel
Jane B. Jacobs, Esq., (Klein, Zelman, Rothermel, LLP),
New York, New York, for the Respondent
Paula Clarity, Esq.,( Archer, Byington, Glennon & Levine, LLP),
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 “Union”), 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 “Complaint”) alleges that Pratt Industries, Inc.
(“Employer” or “Respondent”) 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 Respondent’s 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 “General
Counsel”) and Respondent I make the following
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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 “E&I”) 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 Respondent’s 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 employees
– Darren Kologi, Joseph Hamilton, John O’Donnell, 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
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negotiating sessions. Kevin Cruse is a Field Representative employed by the Union,
and has been the Union’s chief spokesperson during collective bargaining negotiations
with Respondent.
Victor Columbus is the chief labor relations spokesperson for all of Respondent’s
locations throughout the United States, and has been Respondent’s chief spokesperson
during the collective bargaining negotiations regarding the E&I technicians. John
Hennessy is the General Manager of Respondent’s mill division, and is responsible for
the overall operations of the Staten Island facility. Mark Mays is Respondent’s
Engineering Manager at the Staten Island facility. Keelie Cruz is the Regional A term
manager, and is responsible for human resources at five of Respondent’s facilities,
including the Staten Island facility. Mike Austin has supervised the E&I technicians
since approximately January 2010, and prior to that Kevin O’Rourke supervised the
bargaining unit employees.
B. Respondent’s facility and the work of the bargaining unit employees
Respondent’s Staten Island facility consists of four buildings – the 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 the start of
each shift, and are given tasks for the day. Each E&I technician is assigned a particular
area to review on a daily basis, ensure that all machinery is working properly, and note
any problems which need to be evaluated or fixed. During a shift the E&I technicians
also receive calls from Austin reassigning them to more urgent tasks as they arise.
C. Alleged changes in work hours and schedules, and collective bargaining
negotiations
Prior to June 20, 2010,1 the E&I technicians worked four days per week. On
three of these days, they worked a 12-hour shift, and on the fourth day they worked an
8-hour shift. Kologi, Hamilton, and O’Donnell worked weekdays. Dobson and
MacIntosh worked some weekdays as well, but also covered the weekends. Cedeno

1 All subsequent dates are in 2010 unless otherwise indicated.
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and Stern worked night shift hours. All worked at total of at least 44 scheduled hours
per week.2 There is no real dispute that on June 20, the regular hours of the weekday
shift E&I technicians were reduced, and their work schedules changed. Kologi,
Hamilton, and O’Donnell’s hours were reduced to 41.25 hours per week, and the work
schedule was changed so that each was required to work five 8-hour days per week.
Negotiations for a first collective bargaining agreement began in late September
2009. Almost all of the negotiating sessions have taken place at the employer’s facility,
except for the third (which was held at the Union’s offices) and the fourth (which took
place at a hotel in Staten Island). Outside of the negotiating sessions, Cruse and
Columbus communicated by e-mail to exchange proposals and information, and to
schedule meeting dates.3
The initial negotiating sessions took place on September 28 and 29. On the first
day of negotiations, the Union presented its proposals, and on the second day the
company made its initial response. At the first negotiating session, the Union proposed
that the technicians be paid on a weekly instead of biweekly basis, and the company
agreed to that proposal the next day. At the first session, the Union also proposed
additional beeper or on-call pay.
On October 8, 2009, Cruse e-mailed Columbus offering October 21 for a
negotiating session, and requesting a copy of the E&I technicians’ current medical
package so that he could review the information before meeting. Columbus replied that
the company was not available, and offered other dates, including October 28. Cruse
accepted the October 28 date, but Columbus then said he was unavailable. Cruse
asked Columbus for his availability on Wednesdays, because Hamilton was off on
Wednesdays and Kologi’s shift ended at 3 p.m. Columbus offered November 11 and
18, and December 2, 9, and 16. Cruse accepted November 11, 2009, and later asked
that the next meeting take place on December 16, due to other matters he was working
on.
On November 12, 2009, Cruse e-mailed Columbus the Union’s proposed general
overtime equalization language, which Columbus had requested. Cruse suggested that
the parties try to adapt the language to the E&I department’s operations.

2 In the summer of 2009, the E&I technicians’ hours were reduced from 48 to 44
hours per week. They continued to work a four day week, but one of the four days was
reduced from a 12-hour day to an 8-hour day.
3 I base the following account of the parties’ negotiations primarily on documentary
evidence and the testimony of Cruse, Kologi, and Hamilton. Although Columbus
addressed the negotiations during his testimony, he did not provide a specific factual
account, often focusing on the company’s intentions as opposed to the substantive
content of the sessions, and admitted that he could not recall what was actually said
during the negotiations. I therefore find the testimony of Cruse, Kologi, and Hamilton
more probative in general than that of Columbus.
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At the third session, on December 16, 2009, the Union modified its proposal
regarding on-call or beeper pay to provide for 2 hours pay. At the end of the meeting,
Columbus told Mays to show the Union the new schedule. Mays said that the company
was presenting a new schedule for the E&I technicians, and gave the Union copies.
The new schedule reduced the employees’ hours, and introduced rotating shifts. Cruse
asked when the schedule change was going to take place, and the company said it
would take effect within the next month or two. Cruse also noted that the employees
with higher seniority were not assigned the better or more lucrative schedules. Cruse
expressed disappointment, telling the company that the schedule change was
“unprofessional” given that the rest of the meeting had been productive. Cruse also
stated that changing the schedule at that time was an unfair labor practice. Cruse,
Kologi, and Hamilton all testified that the Union did not agree to the schedule change at
this meeting.
On January 19, Cruse e-mailed Columbus the Union’s updated proposals for
weekend differentials and equalization of overtime.
At the next session on January 20, Cruse asked the company why they wanted
to change the E&I technicians’ schedule, and Columbus said that the company wanted
to reduce the employees’ hours. Cruse asked other questions regarding the scheduling
of specific employees. Columbus did not provide a specific date for implementation of
the schedule. Cruse reiterated that the implementation of the schedule would be an
unfair labor practice, and stated that he wanted to negotiate something acceptable to
everyone. Columbus suggested that the Union prepare a proposed schedule, and
Kologi and the other E&I technicians did so.
On February 10, Columbus e-mailed Cruse information regarding the hours
worked and earnings of the bargaining unit employees, which Cruse had requested in
order to calculate the cost of the Union’s proposals. Cruse then requested additional
information regarding salaries and bonuses. He also reiterated his request for
information regarding the medical plan, which Columbus had told him was comparable
to the plan available through the Local 30 benefit funds, but significantly less expensive.
Finally, Cruse told Columbus he was working on a proposal regarding the E&I
technicians’ schedules, and would forward it soon.
At the next session, on February 24, the Union presented the alternative work
schedule it had prepared. After reviewing the Union’s proposed schedule, Columbus
stated that the company could not agree to it, because it needed some employees
available for day shift rotation at all times. Cruse raised issues regarding assignment of
specific employees, rotating shifts, and equalization to correct disparities in overtime
earnings. According to Cruse, Columbus did not respond, and the parties agreed to
exchange ideas regarding scheduling and begin discussing wages at the next session.
Cruse again stated that changing the E&I technicians’ schedule would be an unfair labor
practice.
On March 15, Cruse sent revised proposals to Columbus, and Columbus asked
for more specifics regarding Cruse’s calculations. An e-mail exchange regarding the
calculation of the cost of Cruse’s proposals followed over the next week. A negotiating
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session during that month was scheduled to follow a grievance meeting involving the
Papermakers bargaining unit.4 However, because the grievance meeting ran two hours
longer than anticipated, Kologi and Hamilton left, and the session did not take place.
Cruse testified that such late starts were a recurring problem with E&I negotiations
scheduled after grievance meetings involving the Papermakers unit.
At the end of March, Cruse and Columbus had an e-mail exchange regarding
additional dates for negotiating sessions. Cruse had asked Columbus for additional
dates, concerned because Columbus appeared to be more limited in his availability for
the E&I technicians’ negotiations than for bargaining involving the Papermakers unit. In
response, Columbus offered May 26, and Cruse asked for dates which were not an
entire month apart, suggesting that the parties meet every Wednesday. Columbus
suggested that negotiating sessions alternate between New York and Atlanta, which
Cruse stated was not feasible given the size of the Union’s negotiating committee.
Columbus suggested conference calls as an alternative, and declined to schedule
consecutive days because the bargaining sessions usually did not last more than a few
hours.
At the next session, on April 21, the parties briefly discussed the proposed
schedule changes, with the company providing another written schedule which was
similar to the schedule it had presented at the December 2009 meeting. The company
said that the new schedule would take effect in two weeks. The parties did not reach
agreement on the proposed schedule change at that meeting, and Cruse again
reiterated that changing the schedules would constitute an unfair labor practice.5 The
parties also began discussing the Union’s economic proposals at this meeting, with
Cruse explaining his calculations. Cruse also modified the Union’s sick time proposal to
request seven, as opposed to ten, days of sick time per year. The discussion ended
with Cruse proposing that shifts be chosen by the employees based on seniority, and
Columbus responding that the company assigned the shifts at its own discretion. At the
conclusion of this session, the parties agreed to meet again on May 12, May 26, and
June 9.
Columbus testified that after the April 21 negotiating session ended the parties
were still bargaining. Throughout the negotiations neither party declared impasse, and
the company never announced that it was making or would implement a final offer.
The next day, Cruse e-mailed Columbus, asking for a copy of the new E&I
technicians’ schedule and the schedules of other non-bargaining unit employees.
Columbus responded by stating that the schedule of the maintenance employees was
being changed to mirror the new E&I technicians’ schedule. Columbus also noted that
he was unavailable for a negotiating session on May 12, and suggested May 27. Cruse

4 This is another bargaining unit of employees at the Staten Island facility
represented by the Charging Party Union.
5 Cruse testified that he repeatedly told Columbus that the implementation of the
new schedules would be an unfair labor practice. Columbus confirmed that Cruse
accused him of committing unfair labor practices throughout the negotiations.
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suggested June 23, and Columbus countered with June 30, as he would be traveling
the week before that. Columbus then sent Cruse a detailed calculation of the cost of
the Union’s proposals, and ideas for allocating proposed wage increases toward the
cost of the Local 30 benefit plans.
At some point after the April 21 negotiating session, Cruse received a call from
Kologi, who told him that the schedule change had been implemented. Cruse then
consulted the Union’s attorney about filing an unfair labor practice charge. However,
while discussing another matter with Columbus, Cruse asked him to hold off on
implementing the schedule change, and Columbus agreed.6 Columbus explained in an
e-mail to Hennessey, Cruz, and Mays that, “Kevin Cruse called and pleaded that we
delay the roster change.”7 Mays responded that same day that he “would be OK with
delaying it until June 7,” when the shift mechanics began their new schedule.
Columbus sent an e-mail on May 1 to Cruse telling him that the company would delay
the implementation of the schedule change until after the parties met on May 26.
However, Cruse canceled the May 26 meeting because he had been subpoenaed to
appear at a legal proceeding, and the parties rescheduled the session for June 9.
Columbus subsequently prepared a response to the Union’s proposals for use at
the scheduled June 9 session, which he shared with other members of the company’s
negotiating team. This proposal contained a change in the company’s position on call-
in and beeper pay, to provide the same benefits as those provided under the
Papermakers’ contract. This new proposal essentially agreed to the Union’s call-in and
beeper pay proposal as modified at the December 16, 2009 session. Columbus
testified that the modified call-in and beeper pay proposal was implemented in
conjunction with the June 20 schedule changes, and Mays testified that the company
agreed to increased beeper pay during negotiations regarding its proposed schedule
changes.
The June 9 negotiating session did not take place, but there is no definitive
evidence in the record as to why. Although Columbus contended that the June 9
session was canceled by the Union, I do not find this testimony particularly probative in
light of documentary evidence establishing that other sessions he contends were
canceled by the Union were in fact not confirmed or were canceled by Columbus
himself. In an e-mail acknowledging that Cruse had canceled the May 26 session
because he was required to appear at a legal proceeding, Columbus said that he would
“re-book” for June 9, but there is no evidence regarding Cruse’s response.
On June 9, Mays called a lunch meeting with some of the day shift E&I
employees at the Staten Island facility. Mays distributed a memo from Cruz attaching a
new schedule, and memos regarding calling in sick and the use of unpaid time for sick

6 Cruse arranged an off-the-record meeting with the company on June 8, at a
restaurant in Staten Island, but no substantive issues were discussed at that time.
7 The schedule can also be referred to as the roster.
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leave.8 The new schedule required that each employee work a fixed eight hour shift,
five days per week, without rotating shifts.9 These eight hour shifts – 7 a.m. to 3 p.m., 9
a.m. to 5 p.m., and 11 a.m. to 7 p.m. – had not existed prior to this time. In addition,
McIntosh and Hamilton were assigned to work nights and weekends as part of their
regular schedule. Kologi and O’Donnell expressed dissatisfaction and asked Mays if
the employees could rotate the shifts; Mays said that they could do so.10 Kologi testified
that the Union representatives at this meeting did not agree to the schedule change,
and had never agreed to any of the schedule changes proposed by the company during
negotiations. Kologi informed Cruse, and on June 15 the Union filed the charge in Case
No. 29-CA-30271, alleging that Respondent had unlawfully altered the bargaining unit
employees’ work schedules and sick leave policies.
The new schedule took effect on June 20, and thereafter Kologi and Hamilton
were more restricted in terms of their availability for negotiating sessions. Cruse,
Kologi, and Hamilton all testified that the Union never agreed to the schedule change
implemented on June 20 during previous or subsequent negotiations.
Columbus was on vacation for the last two weeks in July, and Hennessey was on
vacation for the first two weeks of August. On July 29, Columbus e-mailed Cruse
asking him when they were going to meet again. Regarding an annual incentive for the
E&I technicians which was “due shortly,” Columbus stated as follows:
…since you file a NLRB charge every time we do anything, we will not do
anything with regard to a payment or denial of payment until we have
reached an agreement on what we are going to do or disagree on what we
are going to do. Be advised that the annual incentive is 100%
discretionary.
On August 5, Cruz e-mailed Cruse to tell him that Columbus was trying to reach
him regarding dates for further E&I negotiations. Cruse responded that he was
checking on dates with Kologi and Hamilton. On August 10, Cruz sent Cruse a list of
dates that Columbus was available for negotiations from late August through December.
During e-mail exchanges in September, Cruse proposed seven specific dates that
Columbus was available, and asked to do conference calls as well in order to move
things along. However, Cruse then canceled these dates, explaining that the E&I
employees had given him an incorrect schedule. The next week, Cruse e-mailed
Columbus seven different dates for negotiating session, and eventually the parties
agreed on eight dates in October, November and December.

8 Austin and Cruz were also present at this meeting. Hamilton was given the
schedule and other memos by Austin a few days later.
9 Because the new schedule reduced the hours worked per day from 12 to 8, sick,
vacation, and holiday pay were reduced accordingly.
10 Kologi, O’Donnell, and Hamilton subsequently agreed to a schedule amongst
themselves whereby they rotated each of the three new shifts implemented by the
company.
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On November 3, Columbus e-mailed Cruse a comparison of the medical benefits
under the company and Local 30 plans. Cruse again asked for a Summary Plan
Description (“SPD”) for the company’s medical plan, and Columbus said that he would
provide one as soon as it was complete. Cruse responded that he would have to cancel
the upcoming meetings unless Columbus provided the SPD, as he would be unable to
prepare proposals. Columbus and Cruse exchanged dismayed e-mails, and Columbus
suggested that he might request a Federal Mediator. The next week, Columbus sent
Cruse a copy of the SPD and asked about scheduling additional negotiating sessions.
On December 10, Columbus sent Cruse E&I department job descriptions that
Cruse had requested, with classifications for the different E&I technicians. Columbus
also asked for a detailed assessment to illustrate how the Local 30 medical plan was
superior to the company’s plan. Columbus stated that the safety policy would be
revised “for discussion and clarification when we meet next.” Columbus offered the E&I
technicians terms identical to those contained in the collective bargaining agreement
which applied to the Papermakers, but agreed to the ten percent coverage pay
proposed by the Union (with restrictions). Columbus also stated that the company
would provide the discretionary incentive payment to the E&I technicians if the Union
agreed that it would not file an unfair labor practice charge. He concluded that the
company would agree to “discuss further” placing specific percentage wage increases in
the contract. Columbus also stated that Cruse had not scheduled any future meetings.
It is undisputed that during the course of the negotiations the parties never
reached agreement regarding wages, benefits, and many other terms and conditions of
employment.
D. Sick leave and call-in policies, and the discipline of Joe Hamilton
At the June 9 meeting described above, the company also issued two memos to
the E&I technicians regarding call-out procedures and unexcused absences. Kologi
and O’Donnell testified that prior to that time, when calling in sick the employees would
call the facility and leave a voicemail message for their supervisor. They did not have to
speak to a supervisor directly, and were never required to provide a doctor’s note
regarding their absence. Kologi, O’Donnell, and Hamilton also testified that if they
exceeded their allotment of three sick days per year, they were permitted to take unpaid
leave for any additional absences. They were not required to use vacation time for
absences in excess of three days per year.
In an e-mail dated June 9 from Austin to Cruz, Austin suggested two “items that I
would like to change in the department.” Austin suggested that the employees be
required to call out to him on his cell phone or at home at least 45 minutes prior to the
start of their shift. Austin also suggested that employees with no remaining sick time be
required to use a vacation day when they call out. Cruz testified that she and Austin
were going to have a lunch meeting regarding the new E&I technician schedules and
that Austin wanted her to write a memo “with the changes for the call-out policy.”
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In the June 9 memos distributed to the employees, the company required that the
E&I technicians speak directly to their supervisor (Austin), either on his mobile phone or
home telephone number, when calling in sick. The employees were required to leave a
message if they could not reach their supervisor, but also “to keep calling until you have
physically spoken to someone.” If the employees were unable to reach their supervisor,
they were required to contact the engineering manager (Mays), and then the shift
foreman if the engineering manager was unavailable. The memo stated that “Effective
immediately, employees who do not follow the process outlined above will be subject to
disciplinary action.”
Another of the June 9 memos stated that “There are no unpaid excused days
off,” and that employees would be required to use vacation days after exhausting their
allotment of three sick days per year. This memo also required that employees provide
a “sick note,” and that failure to do so would result in the application of “the standard
attendance disciplinary process.”
On December 27, Austin issued a written disciplinary report to Hamilton for
calling out that day, when he had no sick or vacation time available.
In the initial negotiating session, the Union proposed increasing the number of
sick days to ten per year, and the company proposed eliminating the three sick days per
year that employees then received. The company also proposed eliminating the
employees’ ability to use vacation days as sick time. The company never made any
other proposals regarding procedures for the use of sick leave. The Union never
agreed to any of the company’s proposals.
E. Subcontracting of E&I department work
It is undisputed that after the June 20 schedule change, Respondent brought in
three employees of a contractor known as Jisk. Columbus testified that one of the
employees, Andre, was brought in to replace E&I technician Larry Dobson, who had
resigned. Columbus testified that the other two employees were brought in to
familiarize themselves with the operations of the mill. These two employees were not
intended to remain with the company, and only worked for a few weeks. Andre, who
was being “auditioned” to replace Larry Dobson, did not complete his probationary
period. Columbus testified that Respondent has not engaged any subcontracted
employees in the E&I department since these three Jisk employees left.
Kologi, O’Donnell and Hamilton testified that they observed the Jisk employees
reorganizing the motor inventory, work which would normally have been done by
Hamilton. They also observed the Jisk employees repairing and replacing emergency
and density lights and exit signs, work normally done by E&I technician Gary Stern.
It is undisputed that in the past Respondent has used subcontractors to perform
E&I department work during monthly shutdowns for equipment maintenance, and for
large scale jobs which require that significant amounts of work be performed in a short
period of time. Respondent also used subcontractors for work on specific equipment, or
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work beyond the technical expertise of the E&I technicians. Columbus and Mays both
testified that the company used its discretion to determine whether the particular work or
volume of work required bringing in subcontractors. It is also undisputed that
Respondent has used subcontractors to “audition” employees for permanent positions.
O’Donnell and Hamilton both testified that they were both hired by Respondent in this
manner, as were Stern, Dobson and Cedeno.11
Columbus testified that on June 16, at an arbitration regarding an unrelated
matter, he and Cruse had a conversation regarding the resignation of E&I technician
Larry Dobson. Dobson left his employment without providing two weeks’ notice.
Columbus testified that after the arbitration concluded, he and Cruse began discussing
Dobson. Columbus testified that Cruse told him that the E&I technicians were talented
employees who would have no problem finding other employment. According to
Columbus, Cruse stated that he had assisted Dobson with finding another job, and
would similarly help the other E&I technicians find work elsewhere. Columbus
responded that if Cruse intended to “poach” the E&I technicians and leave the mill
short-handed, he would be forced to have subcontractors come to the plant and begin
the training process. Columbus testified that he asked Cruse to return to the mill with
him to discuss the situation, and Cruse said that he had to attend a photo shoot.
Columbus testified that Hennessey, Mays, and Cruz were present during this
conversation, and that union attorney Paula Clarity may have been present as well.
Cruz testified that she only heard Cruse tell Columbus that he had found other work for
Dobson before she left the conversation. Mays testified that Cruse told Columbus that
Dobson was leaving the mill because Cruse had found him another job, and
commented that he was actively looking for other jobs for all of the E&I technicians.
According to Mays, Columbus said that the company would then get some
subcontractors into the facility to familiarize themselves with the mill’s operations. Mays
testified that Columbus asked Cruse to come to the mill to discuss it, and Cruse
declined.
Clarity testified that the entire conversation involved scheduling additional
negotiating sessions, and that the discussion regarding Cruse’s finding work for Dobson
and the E&I technicians never took place.
The company never made any proposal regarding subcontracting during the
contract negotiations, and subcontracting was never discussed.
III. Analysis and Conclusions
A. Alleged changes in work hours and work schedules

11 O’Donnell testified that the Jisk employees he observed in the plant after the
schedule change were not being directed by permanent E&I employees, as he had
been during his “audition” period, but were working independently. Hamilton also
testified that the Jisk employees were not working with the permanent E&I employees.
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The evidence establishes that on June 20, Respondent altered the work hours
and schedules of the E&I technicians. Respondent makes three arguments in support
of its contention that these changes were not unlawful. Respondent contends that it
was permitted to alter the E&I technicians’ work hours and schedules because the
parties were at impasse in negotiations, because the Union engaged in dilatory
bargaining, and because the Union agreed to the changes. The evidence does not
support these assertions.12
Under Section 8(a)(5) of the Act, an employer may not unilaterally institute
changes regarding wages, hours, and other terms and conditions of employment before
a valid impasse in negotiations for an overall agreement is reached. NLRB v. Katz, 369
U.S. 736 (1962). Until that time, an employer may not unilaterally implement changes in
terms and conditions of employment unless the union “insists on continually avoiding or
delaying bargaining,” or “economic exigencies compel prompt action.” Bottom Line
Enterprises, 302 NLRB 373, 374 (1991), enfd. 15 F.3d 1087 (9th Cir. 1994) (internal
quotations omitted); Hospital Perea, 356 NLRB No. 150 at p. 13 (2011). When a
genuine impasse exists, or either of the exceptions articulated in Bottom Line
Enterprises apply, the employer is free to implement any changes reasonably
comprehended within its previous proposals. Richmond Electrical Services, 348 NLRB
1001, 1003 (2006).
A genuine impasse exists when there is no realistic possibility that continuation of
discussions would be “fruitful,” and both parties believe that they are “at the end of their
rope.” Monmouth Care Center, 356 NLRB No. 29 (2010), 354 NLRB No. 2 at p. 47
(2009), citing Essex Valley Visiting Nurses Assn., 343 NLRB 817 (2004); Cotter &
Comp., 331 NLRB 787 (2000), enf. denied in part, 254 F.3d 1105 (D.C. Cir. 2001). In
order to determine whether an impasse exists, the Board evaluates the parties’
bargaining history, their good faith in negotiations, the length of the negotiations, the
importance of the issues forming the basis for the parties’ disagreement, and the
parties’ contemporaneous understanding regarding the state of negotiations. Taft
Broadcasting Co., 163 NLRB 475, 478 (1967), enf’d. 395 F.2d 622 (D.C. Cir. 1968).
With respect to the parties’ contemporaneous understanding, in order to find a valid
impasse the evidence must establish that both parties believed no fruitful negotiations
were possible, or that both parties were unwilling to compromise further. Monmouth
Care Center, 356 NLRB No. 2 at p. 48; Essex Valley Visiting Nurses Assn., 354 NLRB
at 840; see also Ford Store San Leandro, 349 NLRB 116, 121 (2007). The existence of
an impasse is “not lightly inferred,” and the burden of proving that a genuine impasse
existed rests with the party making the contention. Monmouth Care Center, 354 NLRB
No. 2 at p. 47; Serramonte Oldsmobile, 318 NLRB 80, 97 (1995), enf. denied in part, 83
F.2d 227 (D.C. Cir. 1996). When interposed as a defense to allegedly unlawful unilateral

12 Respondent adduced evidence intending to show that the changes in the E&I
technicians’ work hours and schedules did not reduce their overall earnings once
overtime, beeper pay, and call-in pay were taken into account. This evidence is not
relevant to General Counsel’s contention that Respondent unlawfully reduced the E&I
technicians’ regularly scheduled work hours and altered their work schedules.
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changes, the evidence must demonstrate that impasse existed at the time the disputed
changes were implemented. Northwest Graphics, Inc., 343 NLRB 84, 90–92 (2004)
(impasse occurring after unilateral implementation of employer’s bargaining proposals
irrelevant).
The evidence here does not establish that the parties were at an impasse in
negotiations as of June 2010, when the change in work hours and schedules was
announced and implemented. The evidence establishes, that as of that time neither
party had declared impasse, and Respondent had not made anything it described as a
final offer. In fact, Columbus testified that after the April 21 session, the last session
before the implementation of the new work hours and schedule, the parties were still
negotiating. This evidence tends to demonstrate that the parties were not, at the time,
under the impression that fruitful negotiations were impossible. American Standard
Cos., 356 NLRB No. 4 (2010), 352 NLRB 644, 652 (2008); Monmouth Care Center, 354
NLRB No. 2 at p. 48; Essex Valley Visiting Nurses Assn., 343 NLRB at 841. Indeed, at
the end of the April 21 session additional negotiating sessions were scheduled for the
May and June, indicating that the parties still believed that productive negotiations were
possible.13 See Laurel Bay Health & Rehabilitation Center, 356 NLRB No. 3 (2010),
353 NLRB 232, 233 (2008) (agreement to further meetings militates against a finding of
impasse).
Other factors also indicate that the parties were not at impasse when the new
work hours and schedule change were implemented. As of June 2010, only six
negotiating sessions had taken place, and the parties only began discussing economic
proposals at the April 21 meeting. Particularly in the context of first contract
negotiations, the limited number of sessions which had actually occurred prior to
implementation belies a contention that the parties were at impasse at the time.
Monmouth Care Center, 354 NLRB No. 2 at p. 48. The evidence also establishes that
at the April 21 negotiating session the Union modified its proposal regarding sick time,
and proposed that employees be permitted to choose the new shifts suggested by the
company on a seniority basis, indicating its flexibility and willingness to compromise
regarding the scheduling issue. See Laurel Bay Health & Rehabilitation Center, 353
NLRB at 233 (no impasse where union stated that it was willing to consider alternative
medical plan proposals and would begin preparing a counterproposal of its own);
American Standard Cos., 352 NLRB at 652 (no impasse given union’s willingness “to
continue coming up with offers and alternative proposals”). Finally, the evidence
establishes that when he learned from Kologi after the April 21 meeting that the new
schedule was going to be implemented, Cruse “pleaded” with Columbus to delay
implementation so that the parties could discuss the issue at the next negotiating
session. This turn of events indicates that there was no contemporaneous
understanding that the parties had reached impasse. Essex Valley Visiting Nurses

13 Although Respondent claims that the Union canceled negotiating sessions in May,
the evidence establishes that Columbus was ultimately unavailable to meet on May 12,
and that the union’s cancellation of the May 26 session, was necessitated by Cruse’s
having been subpoenaed.
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Assn., 343 NLRB at 841 (no impasse existed where union requested additional
bargaining prior to implementation of employer’s proposal).
The cases discussed by Respondent in support of its assertion that the parties
had reached impasse involve factual circumstances which make them inapplicable
here. A number of these cases involve substantial bargaining over economic terms,
resulting in intransigent positions, whereas in the instant case bargaining over
economics had barely begun. ACF Industries, 347 NLRB 1040, 1040-1042 (2006);
McAllister Bros., 312 NLRB 1121, 1121-1122 (1993); Hamady Bros. Food Markets, 275
NLRB 1335, 1335-1336, 1337-1338 (1985). In addition, although the cases involve
negotiations comprised of fewer than ten bargaining sessions, the employers there
began negotiations with economic proposals based on openly announced cost-cutting
imperatives that the unions were unwilling to approach, let alone accept. ACF
Industries, 347 NLRB at 1041; McAllister Bros., 312 NLRB at 1121-1122; I. Bahcall
Industries, 287 NLRB 1257, 1258-1259, 1262 (1988); Hamady Bros. Food Markets, 275
NLRB at 1337-1338. Strikes and strike votes were also involved, and in most of the
cases impasse was declared or a final offer was clearly articulated by the employer.
ACF Industries, 347 NLRB at 1040-1041; McAllister Bros., 312 NLRB at 1121-1122; I.
Bahcall Industries, 287 NLRB at 1259; Hamady Bros. Food Markets, 275 NLRB at
1336. As a result, the situations addressed in these cases are not factually comparable
to the evidence in the record here.
For all of the foregoing reasons, I find that the parties were not at impasse in
June 2010 when Respondent implemented its changes in the E&I technicians’ work
hours and schedules.
The evidence also does not support Respondent’s contention that the Union
continually avoided or delayed bargaining such that implementation of the schedule
change was permissible under Bottom Line Enterprises. The evidence establishes that
Cruse and Columbus made repeated, mutual efforts to agree on dates for negotiating
sessions. Prior to the April 21 session, Cruse in his e-mails to Columbus had
suggested scheduling additional negotiating sessions, scheduling dates less than a
month apart, and meeting every Wednesday, when the employee negotiating committee
members were regularly available. See Ford Store San Leandro, 349 NLRB at 6 (no
evidence that union delayed bargaining where it proposed alternate dates when unable
to meet on dates proposed by the company). After the April 21 session, Cruse and
Columbus continued to exchange dates for additional sessions, and the evidence
establishes that the May 26 session was canceled by Cruse because he received a
subpoena requiring that he appear at a legal proceeding. By contrast, the cases finding
implementation justifiable due to union delay in bargaining involve lengthy, obstinate
refusals on the union’s part to meaningfully participate in negotiations not characteristic
of the Union’s conduct here. See Serramonte Oldsmobile, 318 NLRB at 100-101 (union
repeatedly stated it was unable to prepare proposals, failed to discuss proposals with
bargaining unit employees, refused to commit to additional negotiating sessions during
the month prior to implementation, and failed to respond to requests for additional dates
in the last week of that month); Southwestern Portland Cement Co., 289 NLRB 1264,
1276-1277 (1988) (union representative repeatedly absented himself from bargaining
and designated a completely uninformed and unprepared replacement without actual
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authority to negotiate to agreement); M & M Contractors, 262 NLRB 1472 (1982), pet.
for review denied, 707 F.2d 516 (9th Cir. 1983) (union “clearly manifested its aversion to
bargaining” over a seven-month period prior to implementation by refusing to provide
meeting dates, and by delaying arranging meeting dates after finally demanding
negotiations). I therefore find that the union here did not delay the bargaining process
in any manner justifying implementation of the reduced work hours and schedule
changes.
Finally, the evidence does not support Respondent’s contention that the Union
agreed to the schedule changes and reduction in work hours. Cruse, Kologi, and
Hamilton all testified that the Union did not agree to the changes prior to their
implementation. The documentary evidence regarding the negotiations – bargaining
notes and e-mails – does not reflect any agreement. After the schedule change was
announced in April, Cruse, according to Columbus, “pleaded” that the implementation of
the schedule change be delayed until after the parties met again. Five days after the
changes were implemented, the Union filed an unfair labor practice charge alleging that
they were unlawful. None of this evidence is consistent with the Union’s having agreed
to the reduction in work hours and schedule change.
The evidence adduced by Respondent does not substantiate its argument that
the Union agreed to the changes. Columbus and Mays did not actually testify that
Cruse agreed to the schedule change or to its implementation. Instead, they contended
that the union’s proposals regarding weekly pay and beeper/call-in pay were discussed
simultaneously with the company’s proposed schedule changes. Thus, Respondent
ultimately bases its argument that the Union agreed to their implementation on its own
purportedly simultaneous implementation of the Union’s weekly pay and beeper/call-in
pay proposals. I find this argument unpersuasive. First of all, the evidence establishes
that Respondent agreed to the Union’s weekly pay proposal at the second negotiating
session on September 29, 2009, and not when the schedule changes were announced
or implemented in June 2010. In addition, the temporal correlation between
Respondent’s implementation of the reduction in hours and schedule change and its
implementation of the Union’s beeper/call-in pay proposal is insufficient to establish the
Union’s actual agreement to the reduction in hours and schedule change, given the
evidence militating against such a conclusion. The fact that Respondent chose to
simultaneously implement the Union’s beeper/call-in pay proposal cannot in and of itself
establish the Union’s agreement to the company’s proposed schedule change and
reduction in work hours. Therefore, the evidence does not substantiate Respondent’s
argument that the Union agreed to these changes prior to their implementation.
For all of the foregoing reasons, I find that Respondent violated Sections 8(a)(1)
and (5) by unilaterally reducing the work hours of the day shift E&I technicians and
changing the E&I technicians’ work schedules absent a valid impasse or an overall
agreement, as alleged in the Complaint.
B. Alleged changes in sick leave and call-out policies, and the discipline of
Joe Hamilton
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As discussed above, an employer may not make unilateral changes in policies
involving mandatory subjects of bargaining under Section 8(d) of the Act. NLRB v.
Katz, 369 U.S. 736 (1962). It is well-settled that sick leave, requiring that employees
provide a doctor’s note after taking sick leave, and disciplinary policies are mandatory
subjects of bargaining. Flambeau Airmold Corp., 334 NLRB 165 (2001) (sick leave);
Interstate Transport Security, 240 NLRB 274, 2797 (1979) (doctor’s note requirement);
Bath Iron Works Corp., 302 NLRB 898, 902 (1991) (disciplinary policies). An employer
is required to provide notice and the opportunity to bargain regarding such changes,
where they have a “significant, substantial, and material” impact on terms and
conditions of employment. See, e.g., Success Village Apartments, 348 NLRB 579
(2006). The Board has held that an employer’s unilateral elimination of the prerogative
to take unpaid leave without using sick or vacation time is a significant and substantial
change, which violates Section 8(a)(5). United Rentals, 349 NLRB 853, 863 (2007).
The evidence establishes that the June 9 memos regarding Respondent’s sick
leave and call-out policies were issued without providing the Union with notice and the
opportunity to bargain. The evidence also demonstrates that the parties did not address
the specific policies addressed in the June 9 memos during contract negotiations, and
that, as discussed above, the parties had not bargained to an overall agreement or a
valid impasse. Instead, Respondent argues that the sick leave policies issued on June
9 did not constitute a change in the E&I technicians’ terms and conditions of
employment, and contends that any changes contained in the call-out policy issued on
June 9 were de minimis.
Respondent’s argument that the policies contained in its June 9 memo regarding
sick leave – the elimination of unpaid excused days off, the requirement that employees
provide a doctor’s note, and the imposition of discipline when employees failed to
comply – were not in fact changes in the existing policies is not substantiated by the
record. At the time of the hearing, Kologi, O’Donnell, and Hamilton had been employed
by Respondent as E&I technicians for 12 years, 10 ½ years, and 5 years respectively;
all testified that throughout their employment with the company, they had been
permitted to take unpaid days off after exhausting their yearly allotment of sick days,
and had never been required to provide a doctor’s note when returning to work. Payroll
documents for O’Donnell and Hamilton confirm that both took unpaid leave in 2008 and
2009, and nothing contradicts their testimony that these unpaid leaves represented time
off in excess of their yearly allotted sick leave. Respondent’s Human Resources
Director Keelie Cruz testified that in 2009 she discovered that E&I supervisor O’Rourke
was permitting the E&I technicians to take unpaid absences. When Austin, O’Rourke’s
replacement, e-mailed Cruz on June 9 to discuss the policies contained in the June 9
memos, he described them as “items that I would like to change in the department.”14

14 I decline to draw an adverse inference from Respondent’s failure to call Austin and
O’Rourke to testify regarding this e-mail, as suggested by General Counsel. However, I
have taken into account the fact that Austin, who is still employed by Respondent, was
not called to testify in my consideration of the evidence pertinent to Respondent’s
contention that the June 9 memos merely reiterated previously existing policies
regarding use of sick leave and calling out.
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In addition, Respondent’s 2006 Employee Handbook, which was distributed to
the E&I technicians and in effect as of June 2010, does not contain any provisions
prohibiting employees from taking unpaid days off, requiring a doctor’s note for
absences due to illness, or stating that employees will be disciplined for failing to
comply with such rules. The 2006 Handbook states that it “replaces all prior versions of
the Handbook, as well as any prior inconsistent memos, bulletins, policies, or
procedures.”
In light of the above evidence, Respondent’s argument that such policies were
actually in effect, based on 1999 and 2001 attendance and lateness/early out policies
that were discovered inserted on a sheet of paper into a December 15, 1998 Employee
Handbook, is unavailing.15 Human Resources Director Cruz, who has been employed
by Respondent since February 2008, testified that she found these documents in a file
cabinet in her office. However, Cruz also testified that the most recent (2006) Employee
Handbook contained the terms and conditions of employment in effect as of 2010, and
did not know whether any prior versions of the Handbook or the attendance policy she
found in her files were distributed to the E&I technicians.16 I therefore credit the
testimony of Kologi, O’Donnell, and Hamilton that they never received any previous sick
leave and call-out policies, and find that prior to June 2010 the attendance and call-out
policies in effect were consistent with the E&I technicians’ testimony as discussed
above.
Respondent also argues that the requirement that employees submit a doctor’s
note for absences was not a change in policy, based on two doctor’s notes O’Donnell
and Kologi submitted in 2000 and 2001. Cruz testified that she found these notes in the
office files, but was understandably unable to elucidate the specific circumstances
surrounding their submission. In such a context, the two doctor’s notes, from a remote
period in time, are insufficient to establish that Respondent’s June 2010 policy requiring
that doctor’s notes be provided did not constitute a change in terms and conditions of
employment.
Nor were the changes in the call-out policy de minimis, as Respondent argues.
The Board has previously held that changes in “sick leave reporting procedures” have a
material, substantial and significant impact on terms and conditions of employment.
See Flambeau Airmold Corp., 334 NLRB at 165-166 (new policy requiring one hour’s
notice prior to taking a sick day “material, substantial, and significant” change); Consec

15 The 1998 Handbook itself does not discuss the provisions of the attendance
policy.
16 During cross-examination, Cruz testified that the 1999 attendance policy may
have been distributed with the 1998 Handbook in which it was discovered. I do not
credit this testimony, as Cruz could not possibly have knowledge of the facts regarding
distribution of these documents almost ten years prior to her employment with
Respondent. I also do not credit her testimony that previous versions of the Employee
Handbook, as opposed to the 2006 version, may have applied as of June 2010, given
the 2006 Handbook’s explicit language.
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Security, 328 NLRB 1201, 1201, fn. 2, 1203 (1999). The altered policy here required
that employees take the additional time, at least 45 minutes prior to the start of their
shift, to make repeated calls until they actually spoke with a supervisor directly, as
opposed to simply leaving a message. Although Respondent argues that the policy
only increased the notification time prior to the start of the employees’ shifts by 15
minutes, the Board has found such a period of time to be “material, substantial, and
significant” in other contexts. See AT&T Corp., 325 NLRB 150 (1997) (unilateral
elimination of 15-minute period for cashing paychecks when check cashing service
unavailable violated Section 8(a)(5)). Finally, because both of the new policies explicitly
provided for disciplinary consequences where none had existed before, they constituted
material and substantial alterations in the E&I technicians’ terms and conditions of
employment. Flambeau Airmold Corp., 334 NLRB at 166; see also Bath Iron Works
Corp., 302 NLRB at 902 (policies which “created entirely new grounds for discipline”
were material, substantial and significant unilateral changes).
For all of the foregoing reasons, I find that by its June 9 memos Respondent
unilaterally changed its sick leave and call-out policies in the manner described above
prior to reaching impasse or overall agreement, in violation of Sections 8(a)(1) and (5)
of the Act. Because there is no dispute that Hamilton was disciplined on December 27
for violating the unilaterally implemented policies, I find that the discipline imposed upon
him violated Sections 8(a)(1) and (5) of the Act as well. See, e.g., Consec Security, 328
NLRB at 1201-1202.
C. Alleged subcontracting of bargaining unit work
It is well-settled that the subcontracting of bargaining unit work is a mandatory
subject of bargaining, unless it involves a substantial capital commitment or change in
the nature, scope or direction of the business. See, e.g., O.G.S. Technologies, Inc.,
356 NLRB No. 92 at p. 3-4 (2011), discussing Fibreboard Corp. v. NLRB, 379 U.S. 203
(1964), Torrington Industries, 307 NLRB 809 (1992); Mission Foods, 350 NLRB 336,
344-345 (2007). Where subcontracting involves merely “the substitution of one group of
workers for another to perform the same work,” the union must be given notice and a
meaningful opportunity to bargain. Mission Foods, 350 NLRB at 344.
The evidence establishes that in June 2010, Respondent subcontracted work
performed by the E&I technicians to the contractor Jisk for several weeks. The
evidence establishes that the three subcontractor employees were performing work
which was typically performed by the bargaining unit E&I technicians, specifically
Hamilton and Stern. The evidence also establishes that the Union was not provided
with notice or the opportunity to bargain regarding the subcontracting prior to its having
taken place and, as described above, that no impasse or overall agreement had been
reached at that time.
Respondent does not contend that the June 2010 subcontracting constituted
some sort of change in the nature, scope, or direction of its business that would obviate
an obligation to bargain. Respondent instead argues that it was privileged to continue
subcontracting in a manner consistent with its past practice, pursuant to the Board’s
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decision in Westinghouse Electric Corp., 150 NLRB 1574 (1965). Respondent asserts
that here, as in Westinghouse Electric Corp., the subcontracting:
(1) was motivated solely by economic considerations; (2) comported with
its customary business operations; (3) did not vary significantly in kind or
degree from an established past practice; (4) had not demonstrable
adverse impact on the bargaining unit employees; and (5) was preceded
by the union’s having an opportunity to bargain over the decision.
Sociedad Espanola de Auxilio Mutuo y Beneficencia de P.R., 342 NLRB 458, 469
(2004), enf’d 414 F.3d 158 (1st Cir. 2005).
The applicability of the Westinghouse Electric Corp. in the context of a newly
certified union engaged in negotiations for a first contract appears to me to be
questionable. The case itself is clearly distinguishable on that basis, as Westinghouse
involved parties with a lengthy bargaining relationship, and the union during previous
collective bargaining negotiations had repeatedly withdrawn proposals to limit the
subcontracting later alleged to be unlawful in exchange for other enhanced contract
benefits. Westinghouse Electric Corp., 150 NLRB at 1576-1577; see also Courier
Journal, 342 NLRB 1094, 1094 (2004) (union’s 10-year acquiescence in unilateral
changes to health plan privileged additional changes during pre-impasse bargaining);
Gulf Coast Automotive Warehouse, Inc., 256 NLRB 486, 488-489 (1981) (union failed to
object to polygraph tests later alleged to constitute a unilateral change). By contrast,
the Board has found that where there is no history of acquiescence by the specific
Charging Party union representing the particular bargaining unit in question, the
employer is not permitted to make unilateral changes. Eugene Iovine, Inc., 356 NLRB
No. 134 at fn. 3 (2011), 353 NLRB 400, 405-406 (2008) (acquiescence of previous
union in past practice of unilateral layoffs does not exempt employer from providing
notice and opportunity to bargain to union currently representing bargaining unit
employees); see also Wehr Constructors, 315 NLRB 867, 868 (1994), enf. denied, 159
F.3d 946 (6th Cir. 1998) (Westinghouse inapplicable where parties’ previous collective
bargaining agreement prohibited subcontracting, indicating lack of union acquiescence).
In particular, in Eugene Iovine, Inc., the Board affirmed the ALJ’s conclusion that “the
overwhelming weight of case law supports the view that nonunion employers’ past
practices will not justify unilateral implementation of mandatory subjects of bargaining
once a union represents the employees,” characterizing the ALJ’s discussion as “fully
consistent with Board precedent.” 356 NLRB No. 134 at fn. 3, 353 NLRB at 406, fn. 9.
Prior to that, in cases involving newly certified unions and first contract situations, the
Board often limited its analysis to the existence of impasse in overall contract
negotiations, waiver, and exigent circumstances, as opposed to the Westinghouse
analysis, even where issues of “past practice” were addressed by the ALJ. See, e.g.
Brede, Inc., 335 NLRB 71, 72-73, 93-95 (2001); Sociedad Espanola de Auxilio Mutuo y
Beneficencia de P.R., 342 NLRB at 458, fn. 3, 469; but see St. George Warehouse,
Inc., 341 NLRB 904, 905-906, 924 (2004). Indeed, the Board has also repeatedly held
that “past practice in effectuating discretionary employment decisions” is not a
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cognizable defense to unilateral change allegations after the union’s certification.17
Essex Valley Visiting Nurses Assn., 343 NLRB at 843, citing Mackie Automotive
Systems, 336 NLRB 347 (2001); Adair Standish, 292 NLRB 840, fn. 1 (1989), enf’d in
relevant part 912 F.2d 854 (6th Cir. 1990).
For all of the foregoing reasons, it appears that the Westinghouse analysis is not
a viable legal framework for addressing the allegedly unlawful subcontract here.
Nevertheless, I find that the evidence in the record does not establish that Respondent
has satisfied the Westinghouse standard.
Respondent argues that its decision to subcontract in June 2010 was motivated
solely by economic or business considerations, in that it was necessarily reacting to a
threat made by Cruse at the June 16 arbitration to assist the all of the other E&I
technicians with obtaining employment elsewhere, as he had for Dobson.18 This
contention is not particularly persuasive. First of all, I find it inherently implausible that
the representative of a newly certified union in the midst of negotiations for a first
contract would pursue a strategy of removing all of the bargaining unit employees
(among whom it had won an election), including its shop stewards and negotiating
committee members, from an employer’s facility. In addition, Columbus testified that
the two subcontractor employees not “auditioning” for a permanent E&I technician
position only worked at the facility for a few weeks, and were never replaced, indicating
that the imminent departure of the bargaining unit E&I technicians was not an ongoing
concern. Indeed, there is no evidence that the issue was discussed during negotiations
after the subcontracting took place. As a result, the evidence suggests that even if
Cruse did actually tell Columbus that he intended to provide assistance in finding other
employment for the bargaining unit employees, Respondent did not consider the E&I
technicians’ coordinated abandonment of their positions to be an immediate possibility.
The evidence also does not establish that the June 2010 subcontracting was
consistent with Respondent’s customary business operations and past practices in this
regard. As the party asserting the existence of a past practice, Respondent bears the
burden of proof, and must establish that the practice was characterized by “such
regularity and frequency that employees could reasonably expect the practice to
continue or reoccur on a regular and consistent basis.” Eugene Iovine, Inc., 356 NLRB
No. 134, 353 NLRB at 400, quoting Sunoco, Inc., 349 NLRB 240, 244 (2007). The
evidence here establishes that Respondent had previously subcontracted the work of
the E&I technicians for shut-down periods and large projects, when a significant amount
of work needed to be completed within a relatively short period of time. Respondent
had also previously subcontracted work related to specific pieces of equipment beyond
the expertise of the E&I technicians. By contrast, there was no shut-down period or
large project at issue in June 2010, and the uncontradicted testimony of the E&I
technicians establishes that the Jisk employees were performing work ordinarily done

17 Here, Columbus and Mays testified that Respondent’s determination to hire
subcontractors was discretionary, in both the “audition” and the workload contexts.
18 Cruse informed Dobson and Kologi of the position that Dobson apparently took
when he left Respondent’s employ.
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by Hamilton and Stern – reorganizing the motor inventory and replacing emergency
lights, density lights, and exit signs. In addition, there is no evidence that in the past
subcontractors were brought in to familiarize themselves with the mill’s operations, the
purpose for which Columbus testified that the subcontractors were retained in June
2010. Although the evidence establishes that the majority of the bargaining unit E&I
technicians had been hired by “auditioning” them through subcontractors, only one of
the three subcontractor employees in June 2010 had been brought into the mill for this
purpose. As a result, Respondent has not established that the work performed by the
Jisk employees at that time was consonant with any previously established practice of
subcontracting.
Respondent claims that the subcontracting in June 2010 had no discernable
impact on the bargaining unit employees, and thus the fourth component of the
Westinghouse analysis supports a finding that the subcontracting was permissible. The
E&I technicians testified that they were inconvenienced and their work impeded by the
activities of the subcontractor employees; any remunerative impact is impossible to
discern from the record. Nevertheless, the continuing legal vitality of this component of
the Westinghouse analysis has been eroded, if not abrogated, by subsequent Board
decisions finding that a detrimental impact on the bargaining unit employees need not
be demonstrated in order to find that unilateral subcontracting is unlawful. See e.g.,
Acme Die Casting, 315 NLRB 202, n. 1 (1994); see also Sociedad Espanola de Auxilio
Mutuo y Beneficencia de P.R., 342 NLRB at 469.
Finally, I find that the Union was not provided with an opportunity to bargain
regarding the subcontracting decision. There is no evidence in the record that
Respondent provided the Union with notice or any opportunity to bargain prior to
subcontracting, and the issue was not addressed during collective bargaining
negotiations prior to June 2010. As a result, I find that Respondent has not satisfied this
component of the Westinghouse analysis.
For all of the foregoing reasons, I find that Respondent violated Sections 8(a)(1)
and (5) by unilaterally subcontracting bargaining unit work in June 2010 in the absence
of a genuine impasse or an overall agreement.
Conclusions of Law
1. The Respondent, Pratt Industries, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. At all times since September 28, 2009, the Union has been the certified
exclusive collective bargaining representative, within the meaning of Section 9(a) of the
Act, of an appropriate unit of employees consisting of the following:
All full-time and regular part-time electrical and instrumentation
technicians employed by the Respondent at the Respondent’s Staten
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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.
4. Respondent violated Sections 8(a)(1) and (5) of the Act by making the
following unilateral changes in the terms and conditions of employment of the
bargaining unit employees without previously bargaining to agreement or to a lawful
impasse:
a. Reducing the regularly scheduled work hours of bargaining unit
employees on or about June 20, 2010;
b. Modifying the work schedules of regular day-shift bargaining unit
employees on or about June 20, 2010;
c. Subcontracting bargaining unit work in and around June and July 2010;
d. Since on or about June 9, 2010, requiring that bargaining unit
employees use vacation days, as opposed to taking unpaid leave, after exhausting their
sick leave, eliminating unpaid leave;
e. Since on or about June 9, 2010, requiring that employees submit a
doctor’s note for sick leave;
f. Since on or about June 9, 2010, requiring that employees speak to a
supervisor directly when calling to inform Respondent that they will not be coming to
work, as opposed to leaving a message.
g. On or about June 9, 2010, instituting a disciplinary policy for bargaining
unit employees who fail to comply with the attendance and leave requirements
unilaterally implemented on that date, as described in paragraphs (d), (e), and (f),
above.
5. By issuing a written warning to Joseph Hamilton on or about December 27,
2010 for violating its policies unilaterally implemented on June 9, 2010, Respondent has
violated Sections 8(a)(1) and (5) of the Act.
6. The above-described unfair labor practices affect commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The Remedy
Having found that Respondent has violated Sections 8(a)(1) and (5) of the Act, I
shall recommend that it cease and desist therefrom and take certain affirmative action
necessary to effectuate the Act’s purposes.
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Respondent shall make whole the bargaining unit employees for any loss of
earnings and other benefits suffered as a result of the unilateral changes in work hours,
day shift employee work schedules, call-out policies, and sick leave policies, and
subcontracting implemented in June 2010, as prescribed in F.W. Woolworth Co., 90
NLRB 289 (1950), with interest as set forth in Kentucky River Medical Center, 356
NLRB No. 8 (2010)
Respondent shall be directed to restore the terms and conditions of employment
that existed prior to its unlawful implementation of the June 2010 modified work hours,
modified day shift employee schedules, subcontracting, and modified sick leave and
attendance policies. Respondent shall make whole Joseph Hamilton for any loss of
earnings and other benefits suffered as a result of the discipline imposed upon him on
December 27, 2010, as prescribed in F.W. Woolworth Co., 90 NLRB 289 (1950), with
interest as set forth in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
Respondent shall also be required to remove from its files all references to Hamilton’s
December 27, 2010 discipline, and to notify him in writing that this has been done and
that the discharge shall not be used against him.
On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended19
ORDER
Respondent Pratt Industries, Inc., Staten Island, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Implementing changes in work hours, day shift employee work schedules,
call-out policies, and sick leave policies in the absence of an overall agreement or a
lawful impasse in collective bargaining negotiations.
(b) Unilaterally subcontracting bargaining unit work in the absence of an
overall agreement or a lawful impasse in collective bargaining negotiations.
(c) Making unilateral changes in work hours, day shift employee work
schedules, call-out policies and sick leave policies, or any other term or condition of
employment in the absence of an overall agreement or a lawful impasse.

19 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in
Section 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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(d) Disciplining bargaining unit employees for the violation of any unilaterally
implemented policies.
(e) In any like or related manner interfering with, restraining or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act
(a) On request, bargain in good faith with the Union as the exclusive
representative of its employees in the following unit:
All full-time and regular part-time electrical and instrumentation
technicians employed by the Respondent at the Respondent’s 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.
(b) On the request of the Union, restore to its bargaining unit employees all
terms and conditions of employment prior to the changes unlawfully implemented in
June 2010, including, but not limited to, work hours, day shift employee work schedules,
call-out policies, and sick leave policies, and subcontracting.
(c) Make the bargaining unit employees whole for any loss of earnings
and other benefits suffered as a result of the unilateral changes in work hours,
day shift employee work schedules, call-out policies, sick leave policies, and
subcontracting implemented in June 2010, in the manner set forth in the Remedy
section of this decision.
(d) Make Joseph Hamilton whole for any loss of earnings and other benefits
suffered as a result of the December 27, 2010 discipline issued to him, in the manner
set forth in the Remedy section of this decision.
(e) Within 14 days of the date of this Order, remove from all files any
reference to the December 27, 2010 discipline of Joseph Hamilton, and within 3 days
thereafter, notify Hamilton in writing that this has been done and that the discipline will
not be used against him in any way.
(f) 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, if any, due under the terms of this Order.
(g) Within 14 days after service by the Region, post at the facility at 4435
Victory Boulevard, Staten Island, New York, copies of the attached notice marked
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“Appendix.”20 Copies of the notice, on forms provided by the Regional Director for
Region 29, after being signed by Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices shall be distributed electronically,
such as by e-mail, posting on an intranet or an internet site and/or other electronic
means if Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees
employed by the Respondent at any time since June 1, 2010.
(h) 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 Respondent has taken to comply.
Dated: Washington, D.C., August 30, 2011.
__________________________
Lauren Esposito
Administrative Law Judge

20 If this Order is enforced by a judgment of a United States court of appeals, the
words in the notice reading “Posted by Order of the National Labor Relations board”
shall read “Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board.”
JD(NY)–31–11
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 implement changes in work hours, day shift employee work schedules,
call-out policies, and sick leave policies in the absence of an overall agreement or a
lawful impasse in collective bargaining negotiations.
WE WILL NOT unlawfully subcontract bargaining unit work in the absence of an overall
agreement or a lawful impasse in collective bargaining negotiations.
WE WILL NOT make unilateral changes in work hours, day shift employee work
schedules, attendance policies and sick leave policies, or any other term or conditions
of employment in the absence of a lawful impasse.
WE WILL NOT discipline bargaining unit employees for the violation of any policies
unilaterally implemented in the absence of an overall agreement or a lawful impasse.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed to you by Section 7 of the Act.
WE WILL on request of the Union bargain in good faith with the Union as the exclusive
representative of our employees in the following unit:
All full-time and regular part-time electrical and instrumentation
technicians employed by the Respondent at the Respondent’s 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.
JD(NY)–31–11
WE WILL on request of the Union, restore to our bargaining unit employees all terms
and conditions of employment as they existed prior to June 2010, including, but not
limited to, work hours, day shift employee work schedules, call-out policies, sick leave
policies, and subcontracting.
WE WILL make the bargaining unit employees whole for any loss of earnings
and other benefits suffered as a result of the unilateral changes in work hours,
day shift employee work schedules, call-out policies, sick leave policies, and
subcontracting implemented in June 2010.
WE WILL make Joseph Hamilton whole for any loss of earnings and other benefits
suffered as a result of the discipline imposed on December 27, 2010, less any net
interim earnings, plus interest.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful December 27, 2010 discipline of Joseph Hamilton, and within
3 days thereafter, notify Hamilton in writing that this has been done and that the
discipline will not be used against him in any way.
PRATT INDUSTRIES, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
26 Federal Plaza, Room 3614, New York, NY 10278-0104
(212) 264-0300, Hours: 8:45 a.m. to 5:15 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
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NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (212) 264-0346.