Pratt Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 5, 2012

358 N.L.R.B. 414 (N.L.R.B. 2012)

414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
358 NLRB No. 52
Pratt Industries, Inc. and International Union of Op-
erating Engineers, Local 30. Cases 29–CA–
030271, 29–CA–030281, and 29–CA–030382
June 5, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HAYES
AND GRIFFIN
On August 30, 2011, Administrative Law Judge Lau-
ren Esposito issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, the Acting
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Pratt Industries, Inc., Staten

1 In finding that the Respondent violated Sec. 8(a)(5) and (1) by uni-
laterally subcontracting unit work in June 2010, we agree with the
judge that the Respondent did not establish a defense under Westing-
house Electric Corp., 150 NLRB 1574 (1965). In particular, we find
that, as to the two unnamed employees, the Respondent, which bears
the burden of proving this defense, failed to show that the subcontract-
ing comported with its customary business operations, did not vary
significantly in kind or degree from an established past practice, and
had no demonstrable adverse impact on unit employees. As to employ-
ee Andre Jones, we find that the Respondent failed to show that it gave
the Union an opportunity to bargain over the subcontracting decision
and did not show that the subcontracting would have no adverse impact
on unit employees.
In addition, for the reasons stated by the judge, Chairman Pearce
would find that the Westinghouse analysis is inapplicable where, as
here, the subcontracting occurs while a newly-certified union is negoti-
ating a first contract. Eugene Iovine, Inc., 356 NLRB 1056, 1056 fn. 3
(2011). Member Griffin finds it unnecessary to pass on that question in
light of the fact that the Respondent here failed to establish a defense
under Westinghouse.
Member Hayes agrees with his colleagues that the instances of sub-
contracting to two unnamed individuals were unlawful under Westing-
house. As to the subcontracting to Andre Jones, however, he would
find that the Respondent lawfully subcontracted work consistent with
its narrow past practice of “auditioning” contractors to fill vacancies.
2 We amend the judge’s remedy to provide that the make-whole
remedy shall be computed in accordance with Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), rather than
with F. W. Woolworth Co., 90 NLRB 289 (1950). The Ogle Protection
formula applies where, as here, the Board is remedying “a violation of
the Act which does not involve cessation of employment status or inter-
im earnings that would in the course of time reduce backpay.” Ogle
Protection Service, supra at 683; see also Pepsi-America, Inc., 339
NLRB 986, 986 fn. 2 (2003).
Island, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

Nancy Reibstein, Esq. and Linda Tooker, Esq., for the Acting
General Counsel.
Jane B. Jacobs, Esq. (Klein, Zelman, Rothermel, LLP), of New
York, New York, for the Respondent.
Paula Clarity, Esq. (Archer, Byington, Glennon & Levine),
LLP), of Melville, New York, for the Charging Party.
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 Re-
spondent) violated Sections 8(a)(1) and (5) of the Act by alter-
ing 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 im-
passe. At the hearing, the complaint was amended to include
an allegation that the discipline of employee Joe Hamilton pur-
suant 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 de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel (the General Counsel) and Re-
spondent I make the following
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, Re-
spondent in the course and conduct of its business operations
purchases and receives at its Staten Island facility goods, sup-
plies, 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 organ-
ization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent recycles paper and cardboard waste, manufactur-
ing paper and packaging products, at its Staten Island facility.
Within the facility there is a production department which op-
erates machinery, a recycling department that receives and sorts
PRATT INDUSTRIES

415
the arriving waste paper, a maintenance department which per-
forms mechanical work, a warehouse department which stores
and ships the finished product, and an electrical and instrumen-
tation (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 instrumenta-
tion technicians employed by the Respondent at the Respond-
ent’s Staten Island facility, excluding other maintenance em-
ployees, 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 bargain-
ing unit employees for the purposes of collective bargaining.
At the time of the hearing in this matter, there were six bar-
gaining unit employees—Darren Kologi, Joseph Hamilton,
John O’Donnell, Ramon Cedeno, Gary Stern, and Bob MacIn-
tosh. Another bargaining unit employee, Larry Dobson, re-
signed his employment during the summer of 2010, and at the
time of the hearing had not been replaced. Kologi and Hamil-
ton are shop stewards for the Union, and have attended negoti-
ating 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 col-
lective-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 Re-
gional 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—the
main mill, the sorting line where recycled materials are recy-
cled, the warehouse, and a separate corrugating mill. The E&I
technicians perform installation, maintenance, repairs, and or-
dering 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 wir-
ing and communications, and maintaining and repairing valves,
screens, and other machinery. They are responsible for clean-
ing and maintaining motors and replacing motors when neces-
sary 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 inven-
tory area. The E&I technicians are also responsible for main-
taining 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 4 days
per week. On three of these days, they worked a 12-hour shift,
and on the 4th day they worked an 8-hour shift. Kologi, Hamil-
ton, and O’Donnell worked weekdays. Dobson and MacIntosh
worked some weekdays as well, but also covered the weekends.
Cedeno and Stern worked night-shift hours. All worked a total
of at least 44 scheduled hours per week.2 There is no real dis-
pute 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 re-
duced 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 be-
gan in late September 2009. Almost all of the negotiating ses-
sions 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 addi-
tional beeper or on-call pay.
On October 8, 2009, Cruse emailed Columbus offering Oc-
tober 21 for a negotiating session, and requesting a copy of the
E&I technicians’ current medical package so that he could re-

1 All subsequent dates are in 2010 unless otherwise indicated.
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 4-day week,
but one of the 4 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

416
view the information before meeting. Columbus replied that
the company was not available, and offered other dates, includ-
ing October 28. Cruse accepted the October 28 date, but Co-
lumbus 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 emailed Columbus the Un-
ion’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.
At the third session, on December 16, 2009, the Union modi-
fied 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 employ-
ees’ 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 2. Cruse also
noted that the employees with higher seniority were not as-
signed 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 sched-
ule change at this meeting.
On January 19, Cruse emailed Columbus the Union’s updat-
ed proposals for weekend differentials and equalization of over-
time.
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 employ-
ees’ hours. Cruse asked other questions regarding the schedul-
ing 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 ac-
ceptable to everyone. Columbus suggested that the Union pre-
pare a proposed schedule, and Kologi and the other E&I techni-
cians did so.
On February 10, Columbus emailed Cruse information re-
garding 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 ex-
pensive. 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 availa-
ble for day shift rotation at all times. Cruse raised issues re-
garding assignment of specific employees, rotating shifts, and
equalization to correct disparities in overtime earnings. Ac-
cording to Cruse, Columbus did not respond, and the parties
agreed to exchange ideas regarding scheduling and begin dis-
cussing 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 calcula-
tions. An email exchange regarding the calculation of the cost
of Cruse’s proposals followed over the next week. A negotiat-
ing session during that month was scheduled to follow a griev-
ance meeting involving the Papermakers bargaining unit.4
However, because the grievance meeting ran 2 hours longer
than anticipated, Kologi and Hamilton left, and the session did
not take place. Cruse testified that such late starts were a recur-
ring problem with E&I negotiations scheduled after grievance
meetings involving the Papermakers unit.
At the end of March, Cruse and Columbus had an email ex-
change regarding additional dates for negotiating sessions.
Cruse had asked Columbus for additional dates, concerned
because Columbus appeared to be more limited in his availabil-
ity 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 2 weeks. The
parties did not reach agreement on the proposed schedule
change at that meeting, and Cruse again reiterated that chang-
ing the schedules would constitute an unfair labor practice.5
The parties also began discussing the Union’s economic pro-
posals at this meeting, with Cruse explaining his calculations.
Cruse also modified the Union’s sick time proposal to request
7, as opposed to 10, days of sick time per year. The discussion
ended with Cruse proposing that shifts be chosen by the em-
ployees based on seniority, and Columbus responding that the
company assigned the shifts at its own discretion. At the con-

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 imple-
mentation of the new schedules would be an unfair labor practice.
Columbus confirmed that Cruse accused him of committing unfair
labor practices throughout the negotiations.
PRATT INDUSTRIES

417
clusion of this session, the parties agreed to meet again on May
12 and 26, and June 9.
Columbus testified that after the April 21 negotiating session
ended the parties were still bargaining. Throughout the negoti-
ations neither party declared impasse, and the company never
announced that it was making or would implement a final offer.
The next day, Cruse emailed Columbus, asking for a copy of
the new E&I technicians’ schedule and the schedules of other
nonbargaining unit employees. Columbus responded by stating
that the schedule of the maintenance employees was being
changed to mirror the new E&I technicians’ schedule. Colum-
bus also noted that he was unavailable for a negotiating session
on May 12, and suggested May 27. Cruse 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 Un-
ion’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
email 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. Co-
lumbus sent an email 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 pro-
posal 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 chang-
es.
The June 9 negotiating session did not take place, but there is
no definitive evidence in the record as to why. Although Co-
lumbus 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

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.
he contends were canceled by the Union were in fact not con-
firmed or were canceled by Columbus himself. In an email
acknowledging that Cruse had canceled the May 26 session
because he was required to appear at a legal proceeding, Co-
lumbus 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 leave.8 The new schedule required that each employee
work a fixed 8-hour shift, 5 days per week, without rotating
shifts.9 These 8-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 compa-
ny during negotiations. Kologi informed Cruse, and on June 15
the Union filed the charge in Case 29–CA–30271, alleging that
Respondent had unlawfully altered the bargaining unit employ-
ees’ work schedules and sick leave policies.
The new schedule took effect on June 20, and thereafter Ko-
logi and Hamilton were more restricted in terms of their availa-
bility 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 nego-
tiations.
Columbus was on vacation for the last 2 weeks in July, and
Hennessey was on vacation for the first 2 weeks of August. On
July 29, Columbus emailed 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 ad-
vised that the annual incentive is 100% discretionary.

On August 5, Cruz emailed Cruse to tell him that Columbus
was trying to reach him regarding dates for further E&I negoti-
ations. 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 email exchanges in Sep-
tember, Cruse proposed seven specific dates that Columbus was

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 sched-
ule amongst themselves whereby they rotated each of the three new
shifts implemented by the company.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

418
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 emailed Columbus seven dif-
ferent dates for negotiating session, and eventually the parties
agreed on eight dates in October, November, and December.
On November 3, Columbus emailed 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 Colum-
bus provided the SPD, as he would be unable to prepare pro-
posals. Columbus and Cruse exchanged dismayed emails, 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 de-
tailed 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 re-
strictions). Columbus also stated that the company would pro-
vide the discretionary incentive payment to the E&I technicians
if the Union agreed that it would not file an unfair labor prac-
tice 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 sched-
uled 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 is-
sued two memos to the E&I technicians regarding call-out pro-
cedures and unexcused absences. Kologi and O’Donnell testi-
fied 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 3 sick days per year,
they were permitted to take unpaid leave for any additional
absences. They were not required to use vacation time for ab-
sences in excess of 3 days per year.
In an email dated June 9 from Austin to Cruz, Austin sug-
gested two “items that I would like to change in the depart-
ment.” 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 techni-
cian schedules and that Austin wanted her to write a memo
“with the changes for the call-out policy.”
In the June 9 memos distributed to the employees, the com-
pany required that the E&I technicians speak directly to their
supervisor (Austin), either on his mobile phone or home tele-
phone number, when calling in sick. The employees were re-
quired to leave a message if they could not reach their supervi-
sor, but also “to keep calling until you have physically spoken
to someone.” If the employees were unable to reach their su-
pervisor, 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 immediate-
ly, 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 un-
paid excused days off,” and that employees would be required
to use vacation days after exhausting their allotment of 3 sick
days per year. This memo also required that employees provide
a “sick note,” and that failure to do so would result in the appli-
cation 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 increas-
ing the number of sick days to 10 per year, and the company
proposed eliminating the 3 sick days per year that employees
then received. The company also proposed eliminating the
employees’ ability to use vacation days as sick time. The com-
pany 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, Re-
spondent 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 Re-
spondent 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 subcon-
tractors to perform E&I department work during monthly shut-
downs 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
PRATT INDUSTRIES

419
work on specific equipment, or work beyond the technical ex-
pertise of the E&I technicians. Columbus and Mays both testi-
fied 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 posi-
tions. O’Donnell and Hamilton both testified that they were
both hired by Respondent in this manner, as were Stern, Dob-
son, and Cedeno.11
Columbus testified that on June 16, at an arbitration regard-
ing an unrelated matter, he and Cruse had a conversation re-
garding the resignation of E&I technician Larry Dobson. Dob-
son left his employment without providing 2 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 Co-
lumbus asked Cruse to come to the mill to discuss it, and Cruse
declined.
Clarity testified that the entire conversation involved sched-
uling additional negotiating sessions, and that the discussion
regarding Cruse’s finding work for Dobson and the E&I techni-
cians never took place.
The company never made any proposal regarding subcon-
tracting during the contract negotiations, and subcontracting
was never discussed.
III. ANALYSIS AND CONCLUSIONS
A. Alleged Changes in Work Hours and Work Schedules
The evidence establishes that on June 20, Respondent altered
the work hours and schedules of the E&I technicians. Re-
spondent makes three arguments in support of its contention

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.
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 negotia-
tions, 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 uni-
laterally 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 1204, 1216 (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 with-
in its previous proposals. Richmond Electrical Services, 348
NLRB 1001, 1003 (2006).
A genuine impasse exists when there is no realistic possibil-
ity 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 152 (2010), 354 NLRB 11,
59 (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’ contem-
poraneous understanding regarding the state of negotiations.
Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. 395
F.2d 622 (D.C. Cir. 1968). With respect to the parties’ con-
temporaneous 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, supra at 59;
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, supra at 59;
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 changes, the evidence
must demonstrate that impasse existed at the time the disputed
changes were implemented. Northwest Graphics, Inc., 343

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 the General Counsel’s
contention that Respondent unlawfully reduced the E&I technicians’
regularly scheduled work hours and altered their work schedules.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

420
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 nego-
tiating. This evidence tends to demonstrate that the parties
were not, at the time, under the impression that fruitful negotia-
tions were impossible. American Standard Cos., 356 NLRB 4
(2010), 352 NLRB 644, 652 (2008); Monmouth Care Center,
supra at 59; Essex Valley Visiting Nurses Assn., 343 NLRB at
841. Indeed, at the end of the April 21 session additional nego-
tiating sessions were scheduled for the May and June, indicat-
ing that the parties still believed that productive negotiations
were possible.13 See Laurel Bay Health & Rehabilitation Cen-
ter, 356 NLRB 3 (2010), 353 NLRB 232, 233 (2008) (agree-
ment to further meetings militates against a finding of impasse).
Other factors also indicate that the parties were not at im-
passe 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 econom-
ic 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. Mon-
mouth Care Center, supra at 59. 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, supra at 233 (no impasse
where union stated that it was willing to consider alternative
medical plan proposals and would begin preparing a counter-
proposal of its own); American Standard Cos., supra at 652 (no
impasse given union’s willingness “to continue coming up with
offers and alternative proposals”). Finally, the evidence estab-
lishes 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 con-
temporaneous understanding that the parties had reached im-
passe. Essex Valley Visiting Nurses Assn., supra 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 circum-
stances which make them inapplicable here. A number of these

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.
cases involve substantial bargaining over economic terms, re-
sulting 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 Brothers Food Mar-
kets, 275 NLRB 1335, 1335–1336, 1337–1338 (1985). In addi-
tion, although the cases involve negotiations comprised of few-
er than 10 bargaining sessions, the employers there began nego-
tiations with economic proposals based on openly announced
cost cutting imperatives that the unions were unwilling to ap-
proach, let alone accept. ACF Industries, supra at 1041; McAl-
lister Bros., supra at 1121–1122; I. Bahcall Industries, 287
NLRB 1257, 1258–1259, 1262 (1988); Hamady Bros. Food
Markets, supra 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 In-
dustries, supra at 1040–1041; McAllister Brothers, supra at
1121–1122; I. Bahcall Industries, supra at 1259; Hamady
Brothers Food Markets, supra at 1336. As a result, the situa-
tions 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 emails to Columbus had suggested scheduling
additional negotiating sessions, scheduling dates less than a
month apart, and meeting every Wednesday, when the employ-
ee negotiating committee members were regularly available.
See Ford Store San Leandro, supra at 121 (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 ex-
change dates for additional sessions, and the evidence estab-
lishes that the May 26 session was canceled by Cruse because
he received a subpoena requiring that he appear at a legal pro-
ceeding. By contrast, the cases finding implementation justifi-
able due to union delay in bargaining involve lengthy, obstinate
refusals on the union’s part to meaningfully participate in nego-
tiations not characteristic of the Union’s conduct here. See
Serramonte Oldsmobile, supra at 100–101 (union repeatedly
stated it was unable to prepare proposals, failed to discuss pro-
posals with bargaining unit employees, refused to commit to
additional negotiating sessions during the month prior to im-
plementation, 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 repre-
sentative repeatedly absented himself from bargaining and des-
ignated a completely uninformed and unprepared replacement
without actual authority to negotiate to agreement); M & M
Contractors, 262 NLRB 1472 (1982), petition for review de-
nied 707 F.2d 516 (9th Cir. 1983) (union “clearly manifested its
aversion to bargaining” over a 7-month period prior to imple-
PRATT INDUSTRIES

421
mentation by refusing to provide meeting dates, and by delay-
ing arranging meeting dates after finally demanding negotia-
tions). 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 conten-
tion that the Union agreed to the schedule changes and reduc-
tion in work hours. Cruse, Kologi, and Hamilton all testified
that the Union did not agree to the changes prior to their im-
plementation. The documentary evidence regarding the negoti-
ations—bargaining notes and emails—does not reflect any
agreement. After the schedule change was announced in April,
Cruse, according to Columbus, “pleaded” that the implementa-
tion 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 con-
tended 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 ulti-
mately bases its argument that the Union agreed to their im-
plementation on its own purportedly simultaneous implementa-
tion of the Union’s weekly pay and beeper/call-in pay pro-
posals. I find this argument unpersuasive. First of all, the evi-
dence establishes that Respondent agreed to the Union’s week-
ly 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 corre-
lation 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. There-
fore, the evidence does not substantiate Respondent’s argument
that the Union agreed to these changes prior to their implemen-
tation.
For all of the foregoing reasons, I find that Respondent vio-
lated Section 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 over-
all agreement, as alleged in the complaint.
B. Alleged Changes in Sick Leave and Call-out Policies, and
the Discipline of Joe Hamilton
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 employ-
ees provide a doctor’s note after taking sick leave, and discipli-
nary policies are mandatory subjects of bargaining. Flambeau
Airmold Corp., 334 NLRB 165 (2001) (sick leave); Interstate
Transport Security, 240 NLRB 274, 279 (1979) (doctor’s note
requirement); Bath Iron Works Corp., 302 NLRB 898, 902
(1991) (disciplinary policies). An employer is required to pro-
vide notice and the opportunity to bargain regarding such
changes, where they have a “significant, substantial, and mate-
rial” 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 with-
out 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 poli-
cies 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 ex-
cused days off, the requirement that employees provide a doc-
tor’s note, and the imposition of discipline when employees
failed to comply—were not in fact changes in the existing poli-
cies is not substantiated by the record. At the time of the hear-
ing, Kologi, O’Donnell, and Hamilton had been employed by
Respondent as E&I technicians for 12 years, 10-1/2 years, and
5 years respectively; all testified that throughout their employ-
ment 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 Ham-
ilton 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, emailed Cruz on June 9 to
discuss the policies contained in the June 9 memos, he de-
scribed them as “items that I would like to change in the de-
partment.”14

14 I decline to draw an adverse inference from Respondent’s failure
to call Austin and O’Rourke to testify regarding this email, as suggest-
ed by the 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

422
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 ab-
sences due to illness, or stating that employees will be disci-
plined for failing to comply with such rules. The 2006 hand-
book 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 employ-
ee 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 em-
ployment 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 Ham-
ilton 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 techni-
cians’ 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 chang-
es in “sick leave reporting procedures” have a material, sub-
stantial, and significant impact on terms and conditions of em-
ployment. See Flambeau Airmold Corp., supra at 165–166
(new policy requiring one hour’s notice prior to taking a sick
day “material, substantial, and significant” change); Consec
Security, 328 NLRB 1201 fn. 2, 1203 (1999). The altered poli-
cy here required that employees take the additional time, at
least 45 minutes prior to the start of their shift, to make repeat-
ed calls until they actually spoke with a supervisor directly, as
opposed to simply leaving a message. Although Respondent

15 The 1998 handbook itself does not discuss the provisions of the at-
tendance 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 possi-
bly have knowledge of the facts regarding distribution of these docu-
ments almost 10 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.
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 cash-
ing 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 em-
ployment. Flambeau Airmold Corp., supra at 166; see also
Bath Iron Works Corp., supra 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 Section 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 Section 8(a)(1) and (5) of the Act as well. See,
e.g., Consec Security, supra 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 642, 643–644 (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 substi-
tution of one group of workers for another to perform the same
work,” the union must be given notice and a meaningful oppor-
tunity to bargain. Mission Foods, supra at 344.
The evidence establishes that in June 2010, Respondent sub-
contracted work performed by the E&I technicians to the con-
tractor 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 techni-
cians, specifically Hamilton and Stern. The evidence also es-
tablishes 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 subcontract-
ing 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 decision in Westinghouse
Electric Corp., 150 NLRB 1574 (1965). Respondent asserts
that here, as in Westinghouse Electric Corp., the subcontract-
ing:

(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
PRATT INDUSTRIES

423
practice; (4) had not demonstrable adverse impact on the bar-
gaining 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), enfd. 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 in-
volved 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., supra at 1576–1577; see
also Courier Journal, 342 NLRB 1094, 1094 (2004) (union’s
10-year acquiescence in unilateral changes to health plan privi-
leged additional changes during preimpasse 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 bar-
gaining unit in question, the employer is not permitted to make
unilateral changes. Eugene Iovine, Inc., 356 NLRB 1056, 1056
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 employ-
ees); see also Wehr Constructors, 315 NLRB 867, 868 (1994),
enf. denied 159 F.3d 946 (6th Cir. 1998) (Westinghouse inap-
plicable where parties’ previous collective-bargaining agree-
ment prohibited subcontracting, indicating lack of union acqui-
escence). In particular, in Eugene Iovine, Inc., the Board af-
firmed the ALJ’s conclusion that “the overwhelming weight of
case law supports the view that nonunion employers’ past prac-
tices 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 at 1056 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 Westing-
house analysis, even where issues of “past practice” were ad-
dressed by the ALJ. See, e.g., Brede, Inc., 335 NLRB 71, 72–
73, 93–95 (2001); Sociedad Espanola de Auxilio Mutuo y Be-
neficencia de P.R., supra at 458 fn. 3, 469; but see St. George
Warehouse, Inc., 341 NLRB 904, 905–906, 924 (2004). In-
deed, the Board has also repeatedly held that “past practice in
effectuating discretionary employment decisions” is not a cog-
nizable defense to unilateral change allegations after the un-
ion’s certification.17 Essex Valley Visiting Nurses Assn., 343
NLRB at 843, citing Mackie Automotive Systems, 336 NLRB

17 Here, Columbus and Mays testified that Respondent’s determina-
tion to hire subcontractors was discretionary, in both the “audition” and
the workload contexts.
347 (2001); Adair Standish, 292 NLRB 840 fn. 1 (1989), enfd.
in relevant part 912 F.2d 854 (6th Cir. 1990).
For all of the foregoing reasons, it appears that the Westing-
house 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 Respond-
ent has satisfied the Westinghouse standard.
Respondent argues that its decision to subcontract in June
2010 was motivated solely by economic or business considera-
tions, in that it was necessarily reacting to a threat made by
Cruse at the June 16 arbitration to assist 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 representa-
tive 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 elec-
tion), 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 techni-
cians was not an ongoing concern. Indeed, there is no evidence
that the issue was discussed during negotiations after the sub-
contracting 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 bargain-
ing unit employees, Respondent did not consider the E&I tech-
nicians’ coordinated abandonment of their positions to be an
immediate possibility.
The evidence also does not establish that the June 2010 sub-
contracting was consistent with Respondent’s customary busi-
ness 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 char-
acterized 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
at 1056, 353 NLRB at 400, quoting Sunoco, Inc., 349 NLRB
240, 244 (2007). The evidence here establishes that Respond-
ent had previously subcontracted the work of the E&I techni-
cians for shut down periods and large projects, when a signifi-
cant amount of work needed to be completed within a relatively
short period of time. Respondent had also previously subcon-
tracted 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
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 opera-
tions, the purpose for which Columbus testified that the sub-

18 Cruse informed Dobson and Kologi of the position that Dobson
apparently took when he left Respondent’s employ.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

424
contractors were retained in June 2010. Although the evidence
establishes that the majority of the bargaining unit E&I techni-
cians had been hired by “auditioning” them through subcon-
tractors, 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 pre-
viously 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 sup-
ports 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 em-
ployees; 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 detri-
mental 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 fn. 1
(1994); see also Sociedad Espanola de Auxilio Mutuo y Benefi-
cencia de P.R., supra at 469.
Finally, I find that the Union was not provided with an op-
portunity 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 sub-
contracting, 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 West-
inghouse analysis.
For all of the foregoing reasons, I find that Respondent vio-
lated Sections 8(a)(5) and (1) 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 en-
gaged 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 instrumenta-
tion technicians employed by the Respondent at the Respond-
ent’s Staten Island facility, excluding other maintenance em-
ployees, 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 Section 8(a)(1) and (5) of the Act by
making the following unilateral changes in the terms and condi-
tions 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 bargain-
ing unit employees on or about June 20, 2010;
(b) Modifying the work schedules of regular day-shift bar-
gaining 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 Respond-
ent 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 at-
tendance 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 Section
8(a)(1) and (5) of the Act.
6. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
THE REMEDY
Having found that Respondent has violated Section 8(a)(1)
and (5) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action necessary to ef-
fectuate the Act’s purposes.
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 6 (2010).
Respondent shall be directed to restore the terms and condi-
tions of employment that existed prior to its unlawful imple-
mentation 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 bene-
fits 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, supra. 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.
PRATT INDUSTRIES

425
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 collec-
tive-bargaining negotiations.
(b) Unilaterally subcontracting bargaining unit work in the
absence of an overall agreement or a lawful impasse in collec-
tive-bargaining negotiations.
(c) Making unilateral changes in work hours, day-shift em-
ployee work schedules, call-out policies, and sick leave poli-
cies, or any other term or condition of employment in the ab-
sence of an overall agreement or a lawful impasse.
(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 effec-
tuate 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 instrumenta-
tion technicians employed by the Respondent at the Respond-
ent’s Staten Island facility, excluding other maintenance em-
ployees, 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 unilat-
eral changes in work hours, day shift employee work schedules,
call-out policies, sick leave policies, and subcontracting imple-
mented 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 Jo-

19 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
seph 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 addi-
tional 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 rec-
ords, 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 “Appendix.”20 Copies of
the notice, on forms provided by the Regional Director for Re-
gion 29, after being signed by Respondent’s authorized repre-
sentative, 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 email, posting on an intranet or an
internet site and/or other electronic means if Respondent cus-
tomarily 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 pro-
ceedings, 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.
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection

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 Na-
tional Labor Relations board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

426
Choose not to engage in any of these protected activi-
ties

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 im-
passe 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 ab-
sence of an overall agreement or a lawful impasse.
WE WILL NOT in any like or related manner interfere with, re-
strain, 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 instrumenta-
tion technicians employed by the Respondent at the Respond-
ent’s Staten Island facility, excluding other maintenance em-
ployees, 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.

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 subcon-
tracting implemented in June 2010.
WE WILL make Joseph Hamilton whole for any loss of earn-
ings 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.