Rigid Pak, Corp.

National Labor Relations Board - Board Decisions

Jul 25, 2018

366 NLRB No. 137 (N.L.R.B. 2018)

366 NLRB No. 137
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Rigid Pak Corp. and Union de Tronquistas de Puerto
Rico, Local 901, International Brotherhood of
Teamsters. Case 12–CA–152811
July 25, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND KAPLAN
On June 8, 2016, Administrative Law Judge Ira San-
dron issued the attached decision. The General Counsel
filed exceptions and a supporting brief, and the Respond-
ent filed an answering brief. The Respondent filed cross-
exceptions and a supporting brief, the General Counsel
filed an answering brief, and the Respondent 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
only to the extent consistent with this Decision and Or-
der.2
We agree with the judge, for the reasons he states and
as further explained below, that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing to bargain
with the Union over its decision to transfer the produc-
tion of its injection-molded products to another company,
Alpla Caribe, Inc. We also agree with the judge, for the
reasons he states, that the Respondent violated Section

1 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 We have amended the judge’s conclusions of law consistent with
our findings. We have also amended the remedy and modified the
judge’s recommended Order consistent with our legal conclusions, to
conform to the Board’s standard remedial language, to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010), and to provide for tax compensation and Social Security report-
ing in accord with AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016). In accordance with our decision in King Soopers, Inc., 364
NLRB No. 93 (2016), enfd. in pertinent part 859 F.3d 23 (D.C. Cir.
2017), we have also modified the remedy and recommended Order to
require the Respondent to compensate affected employees for their
search-for-work and interim employment expenses regardless of
whether those expenses exceed interim earnings. Search-for-work and
interim employment expenses shall be calculated separately from taxa-
ble net backpay, with interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010).
8(a)(5) and (1) by not bargaining in good faith over the
effects of that decision or the effects of the decision to
close its blow-molding division, and by not providing the
Union with notice and an opportunity to bargain over the
performance of post-layoff bargaining unit work by non-
unit employees. However, for the reasons discussed be-
low, we disagree with the judge’s conclusion that the
Respondent violated the Act when it failed to bargain
with the Union over its decision to close its blow-
molding division.
I. FACTS
The relevant facts are largely undisputed. Briefly, the
Respondent is a manufacturer and seller of plastic prod-
ucts. Since 1983, the Union de Tronquistas de Puerto
Rico, Local 901, International Brotherhood of Teamsters
(the Union) has represented the Respondent’s production
and maintenance employees at its Juncos, Puerto Rico
facility. The Respondent and the Union have been party
to successive collective-bargaining agreements. The
most recent agreement was effective from 2010–2014,
and included a provision against subcontracting unit
work if that subcontract resulted in laying off regular
employees.
Historically, the Respondent maintained two divi-
sions–injection-molding and blow-molding–housed on
different sides of its Juncos facility. In its injection-
molding division, the Respondent manufactured open-
head containers, lids, and crates. In the blow-molding
division, the Respondent manufactured several types of
plastic bottles. Employees worked interchangeably be-
tween the divisions. The companies that purchased the
Respondent’s blow-molded products were generally dif-
ferent from companies that purchased the injection-
molded products.
On April 30, 2014, the Union requested to bargain a
successor agreement. When the parties finally met sev-
eral months later, Jose Carvajal, the Respondent’s presi-
dent and part owner, told the Union that the Respondent
was in a bad financial situation and was exploring alter-
natives and that it was therefore asking for a one year
extension of the current agreement without any increase
in wages. He further stated that he would not ask the
Union for concessions because labor costs were not the
reason for the Respondent’s financial predicament. The
parties did not engage in further bargaining, and no con-
tract extension was signed.
In late 2014, Carvajal considered several options for
increasing sales, including exporting products, making
alliances with competitors, and going into a new line of
business. In October 2014, while exploring the possibil-
ity of expanding the Respondent’s blow-mold line to
include clear plastic bottles, Carvajal visited Alpla’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
blow-molding operation. Although Carvajal was consid-
ering Alpla as a supplier of raw materials for the new
product, his examination of Alpla’s operation convinced
him that the Respondent could not continue the blow-
mold operation, let alone expand it. As Carvajal testi-
fied,
And an idea came to my mind, that I said,
well, we cannot stay in the plastic bottle
manufacturing business because we don’t
have the updated equipment and the cost
structure to compete in the market. That was
a given. We had to close that division of the
company.
With respect to the injection-mold operation, Carvajal
asked Alpla what it would charge for making injection-
molded containers. After receiving an estimate, Carvajal
determined that the Respondent could make a small prof-
it and pay back its debt by paying Alpla to manufacture
their containers. The Respondent and Alpla negotiated
terms and, on February 12, 2015,3 signed a supply
agreement.
For injection-molded products, the agreement requires
the Respondent to supply Alpla with the raw materials,
molds, and machines that it owns; Alpla, in turn, agrees
to provide the labor and facilities to manufacture the
products. The Respondent also agrees to pay for the
transportation of its machines to Alpla’s facilities and to
reimburse Alpla for any taxes and other public charges
incurred in housing the Respondent’s machines. The
Respondent is also to pay for spare parts, replacement
parts, and specialized technical support on the machines,
while Alpla agrees to provide personnel for scheduled
maintenance and repair work. Additionally, the Re-
spondent agrees to supply or pay for packaging of the
completed product, which bears the Respondent’s name
and logo. The Respondent pays Alpla for the manufac-
tured products at a discounted rate.
As to blow-molded products, Alpla will manufacture
products at its facility, with its own materials, machines,
and workforce.4 The agreement provides that the Re-
spondent will purchase the finished blow-mold products
it needs, at a price that can change monthly, based on the
cost of raw materials and packaging.
For both products, Alpla also agrees to provide the Re-
spondent with quality control reports, samples from each
production run, and, upon reasonable notice, allow the
Respondent to observe and inspect the manufacturing

3 All dates are in 2015 unless otherwise indicated.
4 We find merit in the Respondent’s exception that the judge made a
factual error, and find that the supply agreement does not state that
Alpla would print the Respondent’s logo on the blow-molded products.
process. The parties further agree that prices for the
products can change periodically based on labor and en-
ergy costs. The Respondent is responsible for arranging
delivery of the products to its customers.5
The Respondent did not inform the Union of its nego-
tiations with Alpla, or their agreement, until March 17.
That day, Carvajal told the Union that he had to close the
facility because the Respondent had suffered over $1
million in losses, that the Respondent was going to have
Alpla manufacture its injection-molded products using
the Respondent’s machines, and that the Respondent was
going out of the blow-molding business. On March 26,
the Respondent met with the Union and advised it that it
would cease its manufacturing operations the following
day and that all unit employees would be laid off March
31. On March 31, the Respondent issued layoff notices
to all unit employees informing them that March 31
would be their last day of work.6
In the months following the layoffs, the Respondent
transferred its injection-molding machines to Alpla, and
advertised its blow-molding machines for sale, success-
fully selling its largest one. At the time of the hearing,
which was more than a year after the employees had
been laid off, the Respondent continued to advertise it-
self as a manufacturer of injection and blow-molded
products.7 Alpla’s only role in injection-molding was to
manufacture products for the Respondent. The Respond-
ent continued to sell its injection-mold products directly
to the customers it supplied prior to the transfer of pro-
duction to Alpla, and it resold blow-mold products to
some of those same customers. As to blow-molded
products, Alpla continued to supply multiple customers,
including the Respondent.
Although the Respondent arranges for most of the
products to be delivered directly from Alpla to its cus-
tomers, some of its injection-molded products are deliv-
ered to its former manufacturing facility for pickup by
small customers. Those products are handled by em-
ployees of Laser Products, Inc., which Carvajal also
heads; prior to its contract with Alpla, this work was per-
formed by the Respondent’s bargaining unit employees.

5 We find merit in the General Counsel’s exception that the judge
made a factual error, and find that the Respondent contracts directly
with trucking companies for the delivery of its products that Alpla
manufactures.
6 As found by the judge, following the March 31 layoff, nonunit
employees performed residual unit work at the Juncos facility in April
and May.
7 We disagree with the Respondent’s exception to the judge’s find-
ing that the Respondent continues to advertise as a manufacturer of
both injection and blow-molded products. The Respondent and the
General Counsel submitted a joint stipulation where the parties agreed
that GC Exhs. 17–19 depicted the Respondent’s website, and we find
that the judge correctly relied on those exhibits to make his finding.
RIGID PAK CORP. 3
II. THE JUDGE’S DECISION
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act when it failed to provide the
Union with adequate notice and an opportunity to bar-
gain over the decision to contract out injection-mold and
blow-mold unit work and lay off unit employees.8 Ana-
lyzing the Respondent’s changes to its injection-mold
and blow-mold operation, the judge found that the nature
of the Respondent’s business remained substantially un-
changed after its agreement with Alpla, and, therefore,
the decision was properly characterized as subcontracting
rather than a partial closing. Thus, the decision and its
effects were subject to mandatory bargaining per Fibre-
board Corp. v. NLRB, 379 U.S. 203 (1964). The judge
noted that the Respondent did not go out of business; it
remained an active participant in the production of injec-
tion-molded products, owned the machinery that manu-
factured the product, and continued to sell the product
directly to the customers it served prior to its transfer of
production to Alpla. As for blow-molding, the judge
acknowledged that the Respondent had ceased producing
that product, had sold one of its machines, and advertised
its remaining equipment for sale. Nonetheless, the judge
found that even if there had been a partial closure, i.e. a
closure of the Respondent’s blow-mold operation, be-
cause unit employees had worked interchangeably be-
tween the two divisions, bifurcating the two operations
when assessing a bargaining obligation would be infeasi-
ble and unworkable. To remedy these violations, the
judge’s recommended Order requires the Respondent to,
upon request, bargain with the Union over its decision to
subcontract injection-molded and blow-molded unit
work to Alpla and its effects, and to award laid off em-
ployees a limited backpay remedy pursuant to Transma-
rine Navigation Corp., 170 NLRB 389 (1968). The
judge did not recommend restoration of the status quo,
the traditional make-whole remedy for decisional bar-
gaining violations, finding that requiring the Respondent
to restore its injection-mold and blow-mold operations
would place an unreasonable hardship on the Respond-
ent.
III. DISCUSSION
Although we agree with the judge that the Respondent
was obligated to bargain with the Union over the deci-
sion to subcontract its injection-molding work, we find,
under the particular circumstances of this case, that this
decisional bargaining obligation did not extend to its

8 The judge also found that the Respondent violated 8(a)(5) by
transferring bargaining unit work to nonunit employees after March 31,
2015 without providing the Union notice and the opportunity to bar-
gain.
blow-molding operation. The facts regarding the two
divisions substantially differ. Historically, the Respond-
ent utilized separate equipment and processes to manu-
facture different types of products in each division.9
Since the layoffs, the Respondent continues to be in-
volved in the manufacture of injection-molded products;
it has, however, abandoned blow-molding manufactur-
ing.
As for injection-molding, the Respondent continues to
provide the raw materials, molds, and machines, and
instructs Alpla on what products to manufacture. The
Respondent also agrees to pay for spare parts, replace-
ment parts, and specialized technical support on the ma-
chines, and has agreed to reimburse Alpla for taxes or
other charges it may incur in housing them. The finished
injection-molded products all bear the Respondent’s
name and logo, and the Respondent, upon notice, can
visit Alpla and inspect the manufacturing of its products.
Once Alpla employees make the products, the Respond-
ent arranges for the packaging and for the products to be
delivered to the Respondent’s customers. In addition,
some of the products are sent to the Respondent’s Juncos
facility where they are available for pick up by small
customers, and are handled by Laser’s workforce rather
than unit employees, who had performed the same func-
tion prior to the transfer of the manufacturing work. Fi-
nally, at the time of the hearing, the Respondent was the
sole customer of Alpla-made injection-mold products,
which the Respondent then sold to the same customers
who had purchased the product prior to the transfer of
work to Alpla.
Considering these facts, we find that there has not been
so significant a change in the scope and direction of the
Respondent’s injection-molding business as to free the
Respondent from its obligation to bargain with the Union
over the decision to contract that work to Alpla. Thus,
when Carvajal concluded that he could not maintain his
current bottle manufacturing business, he decided that
the injection-mold process and product remained viable,
and continued to sell the product, with the manufacture
of the product performed by Alpla. We find that the de-
cision was subject to mandatory bargaining under our
Fibreboard precedent. See, e.g., O.G.S. Technologies,
Inc., 356 NLRB 642, 645 (2011) (“Before and after the
[contracting] decision, OGS produced and supplied brass

9 The Respondent had four machines in its injection-molding divi-
sion and five in its blow-molding division, the largest of which was a
five-mold bleach bottle machine that was connected by a conveyor belt
to Laser, Inc., a neighboring bleach-producing company. Each division
used its own molds and resins, and had its own “supplier,” a unit em-
ployee who added color to the machines and moved the finished prod-
ucts out of the production area.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
buttons to customers.”); Bob’s Big Boy Family Restau-
rant, 264 NLRB 1369, 1371 (1982) (after contracting out
shrimp processing, the respondent continued in the same
business, only with the processing work performed by
the subcontractor’s employees). As in O.G.S. and Bob’s
Big Boy, the Respondent continued in the same business
and merely transferred the manufacturing work to a con-
tractor. Indeed, as a practical matter, all the Respondent
essentially did was substitute Alpla’s employees for its
own unit employees. Thus, although Alpla employees
are used to manufacture the injection-molded products,
the Respondent remains largely responsible for the other
aspects of their production, and it is completely respon-
sible for the sales of those products, all of which bear its
name and logo. Accordingly, the Respondent was re-
quired to bargain with the Union over the decision to
transfer its injection mold work.
We reject the Respondent’s claims that bargaining
could or would have harmed its business. As to the Re-
spondent’s claims that bargaining could have caused it to
lose customers or jeopardized its negotiations with Alpla,
we view them as speculative, and accord them little
weight. We also give little weight to the Respondent’s
concerns that bargaining would have required it to breach
its confidentiality agreement with Alpla. The Respond-
ent could have avoided those concerns by negotiating
with the Union over a nondisclosure agreement. Finally,
as to the Respondent’s argument that bargaining over the
decision would have been futile—and thus presumably a
burden—because labor costs played no role in its deci-
sion, we cannot conclude that is the case. The Respond-
ent certainly appeared concerned with labor costs (not-
withstanding its contrary assertions) when, within a year
of contracting with Alpla, it specifically asked the Union
to continue the collective-bargaining agreement without
any wage increases. More importantly, we are not con-
vinced that labor costs played no consideration, or could
not have been a significant consideration, where, as dis-
cussed above, so much of the manufacturing operation
remains the same, requiring the same type of labor that
bargaining unit employees performed. Although we
cannot say whether the Union and Respondent would
have reached a successful agreement, it was necessary
that the Union timely be provided this opportunity. See
Gunderson Rail Services, LLC, 364 NLRB No. 30, slip
op. at 2 (2016) (noting that “the Respondent could not
claim to know what solutions the give-and-take of bar-
gaining might have generated” and that the parties could
have discussed the possibility of keeping a smaller opera-
tion).
We view the Respondent’s actions surrounding its
blow-molding operation differently. Unlike the decision
to contract out its manufacture of injection-mold work to
Alpla, the Respondent’s decision to abandon blow-
molding manufacturing involved a significant change in
the scope and direction of its enterprise and was thus not
subject to mandatory bargaining. Cf. Torrington Indus-
tries, Inc., 307 NLRB 809, 810 (1992) (no change in the
scope and direction where the respondent kept preparing
concrete with the same raw materials); O.G.S. Technolo-
gies, supra, at 645. When evaluating its business op-
tions, the Respondent viewed Alpla’s blow-mold equip-
ment and operation, and determined that it could not pro-
ceed profitably with its current operation; nor could it
afford the equipment or experienced personnel necessary
to expand its blow-molded product line. As a result, the
Respondent divested itself from the blow-mold manufac-
turing operation, sold its largest machine and placed the
remaining machines up for sale. In its place, the Re-
spondent contracted to purchase blow-mold products
from existing blow-mold manufacturer Alpla, using
Alpla’s machines, molds, supplies and workforce. Un-
like the injection-mold products, the Respondent’s name
and logo are not printed on the blow-mold products it
purchases from Alpla and the Respondent is merely one
of Alpla’s blow-mold customers. Thus, as the Respond-
ent plays no role in the manufacture of the blow-mold
products, it made a significant change in this operation.
Accordingly, we find that the Respondent was not obli-
gated to bargain with the Union regarding the decision to
cease producing blow-mold work.
For all these reasons, we find that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by failing to pro-
vide the Union with notice and an opportunity to bargain
over the decision to subcontract its injection-molding
work, but that it did not violate the Act by unilaterally
closing its blow-molding operation.10 However, the Re-
spondent was obligated to provide the Union with notice
and an opportunity to bargain over the effects of both
decisions, which, as the judge correctly found, it failed to
do.
Finally, although we agree with the judge that the lim-
ited Transmarine remedy is appropriate for employees

10 We disagree with the judge’s finding that bargaining would have
been unworkable because unit employees had worked interchangeably
between the injection-mold and blow-mold operations. Bargaining
over which employees will be affected by layoffs is not uncommon for
unions and employers. See, e.g., First National Maintenance Corp. v.
NLRB, 452 U.S. 666, 677 (1981) (noting that “the order of succession
of layoffs” is a mandatory subject of bargaining); Good Samaritan
Hospital, 363 NLRB No. 186, slip op. at 2 (2016) (parties had bar-
gained to implement layoffs based on seniority); Waymouth Farms, 324
NLRB 960, 963 (1997) (parties had bargained to implement layoffs
based on employees’ skill, ability, and performance), enfd. in part 172
F.3d 598 (8th Cir. 1999). We find that such bargaining was and is
likewise possible here.
RIGID PAK CORP. 5
adversely affected by the Respondent’s failure to mean-
ingfully bargain over the effects of its decision to close
its blow-mold operation, we do not agree with the judge
that this limited remedy is likewise warranted for the
injection-mold ‘decision-bargaining’ violation. It is well
settled that restoration of the status quo is the appropriate
remedy for decision violations, absent a showing that it
would be unduly burdensome. See, e.g., O.G.S. Tech-
nologies, supra, 356 NLRB at 647; Q-1 Motors Express,
Inc., 323 NLRB 767, 768–769 fn. 10 (1997); Torrington,
supra, 307 NLRB at 820. Here, although the judge con-
cluded that restoration of the status quo would place an
“unreasonable hardship” on the Respondent, this issue
was not fully litigated.11 And, in any event, the judge’s
conclusion assumed a restoration of the blow-mold divi-
sion, which is more than we are requiring. Accordingly,
we shall impose the traditional restoration remedy for the
injection-mold decision violation. The Respondent will
have the opportunity in compliance to introduce evidence
to demonstrate that restoring its injection-mold operation
would be unduly burdensome. See IMI South, LLC,
d/b/a Irving Materials, 364 NLRB No. 97, slip op. at 7
(2016); Q-1 Motors, supra, 323 NLRB at 768-769 fn. 10.
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union de Tronquistas de Puerto Rico, Local
901, International Brotherhood of Teamsters (Union), is
a labor organization within the meaning of Section 2(5)
of the Act.
3. By the following conduct, the Respondent engaged
in unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act and violated
Section 8(a)(5) and (1) of the Act:
(a) Laying off unit employees on March 31, 2015, and
subcontracting their injection-molding work without first
affording the Union adequate notice and an opportunity
to bargain over the decision and its effects.
(b) Failing to timely notify and meaningfully bargain
with the Union over the effects of its decision to close its
blow-molding operation.
(c) Transferring bargaining unit work at its Juncos fa-
cility after March 31, 2015, to nonunit employees with-
out providing the Union with notice and an opportunity
to bargain.

11 Indeed, testimony on the Respondent’s current financial situation
was specifically curtailed at the hearing. See Tr. 173–174.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(5) and
(1) of the Act by not bargaining with the Union over its
decision to subcontract its injection-molding operation
and the effects of that decision, we shall order the Re-
spondent to restore the status quo ante, and give the Un-
ion notice and, on request, an opportunity to bargain re-
garding the decision to subcontract its injection-mold
work. In addition, we shall order the Respondent to offer
affected employees full reinstatement to their former jobs
or to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges previ-
ously enjoyed, and to make whole affected employees
for any loss of wages and other benefits they may have
suffered as a result of the Respondent’s decision. Back-
pay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest at the rate
prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010). In addition, we shall
order the Respondent to compensate the affected em-
ployees for any adverse tax consequences of receiving
lump-sum backpay awards, and file with the Regional
Director for Region 12, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee. Ad-
voServ of New Jersey, Inc., 363 NLRB No. 143 (2016).
In accordance with our recent decision in King Soopers,
Inc., 364 NLRB No. 93 (2016), enfd. in pertinent part
859 F.3d 23 (D.C. Cir. 2017), we shall also order the
Respondent to compensate the affected employees for
their search-for-work and interim employment expenses
regardless of whether those expenses exceed interim
earnings. Search-for-work and interim employment ex-
penses shall be calculated separately from taxable net
backpay, with interest at the rate prescribed in New Hori-
zons, supra, compounded daily as prescribed in Kentucky
River Medical Center, supra.
To remedy the Respondent’s unlawful failure to bar-
gain with the Union over the effects of its decision to
close its blow-molding operation, we shall order the Re-
spondent to bargain with the Union, on request, over the
effects of its decision. As a result of the Respondent’s
unlawful conduct, certain unit employees have been de-
nied an opportunity to meaningfully bargain through
their collective-bargaining representative at a time when
the Respondent might still have been in need of their
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
services and a measure of balanced bargaining power
existed. Meaningful bargaining cannot be assured until
some measure of economic strength is restored to the
Union. A bargaining order alone, therefore, cannot serve
as an adequate remedy for the unfair labor practices
committed.
Accordingly, we deem it necessary, in order to ensure
that meaningful bargaining occurs and to effectuate the
policies of the Act, to accompany our bargaining order
with a limited backpay requirement designed both to
make whole the employees for losses suffered as a result
of the violations and to recreate in some practicable
manner a situation in which the parties’ bargaining posi-
tion is not entirely devoid of economic consequences for
the Respondent. We shall do so by ordering the Re-
spondent to pay backpay to the unit employees affected
by this remedy in a manner similar to that required in
Transmarine Navigation Corp., 170 NLRB 389 (1968),
as clarified by Melody Toyota, 325 NLRB 846 (1998).
Thus, the Respondent shall pay those unit employees
backpay at the rate of their normal wages when last in the
Respondent’s employ from 5 days after the date of this
Decision and Order until occurrence of the earliest of the
following conditions: (1) the date the Respondent bar-
gains to agreement with the Union on those subjects per-
taining to the effects of its decision to close its blow-
molding operations; (2) a bona fide impasse in bargain-
ing; (3) the Union’s failure to request bargaining within 5
business days after receipt of this Decision and Order, or
to commence negotiations within 5 business days after
receipt of the Respondent’s notice of its desire to bargain
with the Union; or (4) the Union’s subsequent failure to
bargain in good faith.
In no event shall the sum paid to these employees ex-
ceed the amount they would have earned as wages from
the date on which the Respondent closed its blow-
molding operation to the time they secured equivalent
employment elsewhere, or the date on which the Re-
spondent shall have offered to bargain in good faith,
whichever occurs sooner. However, in no event shall
this sum be less than the employees would have earned
for a 2-week period at the rate of their normal wages
when last in the Respondent’s employ. Backpay shall be
based on earnings which the unit employees would nor-
mally have received during the applicable period, less
any net interim earnings, and shall be computed in ac-
cordance with Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
as prescribed in New Horizons, supra, compounded daily
as prescribed in Kentucky River Medical Center, supra.
Additionally, we shall order the Respondent to compen-
sate unit employees for any adverse tax consequences of
receiving lump-sum backpay awards and to file a report
with the Regional Director for Region 12 allocating
backpay to the appropriate calendar years for each em-
ployee, in accordance with AdvoServ of New Jersey, Inc.,
supra.
Because the Respondent assigned its unit employees
interchangeably between its injection mold and blow-
mold operations, and as we have found that the Respond-
ent lawfully discontinued its blow mold operation, the
identity of employees who will receive reinstatement and
make-whole relief, rather than the more limited Trans-
marine effects remedy, is not currently known. We will
afford the parties, at the Union’s request, an opportunity
to bargain over the identity of employees who will re-
spectively receive either the make-whole or Transmarine
remedies. Further, the Respondent may litigate in com-
pliance whether it would be unduly burdensome to re-
store the status quo ante with respect to its injection-
molding operation.
We also order the Respondent to make-whole unit em-
ployees for transferring bargaining unit work to nonunit
employees at its Juncos facility after March 31, 2015,
without providing the Union notice and an opportunity to
bargain. We leave to compliance the determination of
whether any negotiated agreement(s) or the remedies
provided by the Respondent are sufficient to fully make
whole affected employees for this transfer of unit work.
Finally, in view of the fact that the Respondent has laid
off all bargaining-unit employees and the possibility that
a workplace posting requirement will provide inadequate
remedial notice, we shall order the Respondent to mail a
copy of the attached notice to the Union and to the last
known addresses of its former unit employees in order to
inform them of the outcome of this proceeding.
ORDER
The Respondent, Rigid Pak Corp., Juncos, Puerto Ri-
co, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off unit employees and subcontracting their
injection-molding work without first affording the Union
de Tronquistas de Puerto Rico, Local 901, International
Brotherhood of Teamsters (the Union) adequate notice
and an opportunity to bargain over the decision and its
effects.
(b) Failing to timely notify and meaningfully bargain
with the Union over the effects of its decision to close its
blow-molding operation.
(c) Transferring bargaining unit work to nonunit em-
ployees at its Juncos facility without providing the Union
with notice and an opportunity to bargain.
RIGID PAK CORP. 7
(d) In any like or related manner interfering with, re-
straining, 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) Restore the status quo ante by restoring to the Jun-
cos facility all injection-molding work previously per-
formed by bargaining unit employees.
(b) Notify and, on request, bargain with the Union
over the decision to subcontract injection-molding work
to Alpla, and the effects of that decision.
(c) Notify and, on request, bargain with the Union
over the effects of its decision to close its blow-molding
operation.
(d) Notify and, on request, bargain with the Union
over using nonunit employees to perform bargaining unit
work at its Juncos facility.
(e) Offer the employees laid off as a result of the deci-
sion to subcontract the injection-molding work full rein-
statement to their former jobs or to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(f) Make whole the employees laid off as a result of
the decision to subcontract the injection-molding work in
the manner set forth in the remedy section of the judge’s
decision as amended in this decision.
(g) Pay the employees affected by the failure to timely
notify and meaningfully bargain with the Union over the
effects of the decision to close the blow-molding opera-
tion in the manner set forth in the remedy section of the
judge’s decision as amended in this decision.
(h) Make employees whole for any loss of earnings
and other benefits suffered as a result of transferring bar-
gaining unit work at its Juncos facility after March 31,
2015 to nonunit employees without providing the Union
with notice and an opportunity to bargain, plus interest.
(i) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(j) Within 14 days after service by the Region, post12
at its facility in Juncos, Puerto Rico, copies of the at-
tached notice marked “Appendix,” in Spanish and Eng-
lish, and mail a copy thereof to each bargaining unit em-
ployee laid off on March 31, 2015. Copies of the notice,
on forms provided by the Regional Director for Region
12, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es 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 the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If 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 cur-
rent employees and former employees employed by the
Respondent at any time since March 31, 2015.
(k) Within 21 days after service by the Region, file
with the Regional Director for Region 12 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. July 25, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member

12 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 BOARD8
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT lay you off and subcontract injection-
molding unit work without first affording the Union de
Tronquistas de Puerto Rico, Local 901, International
Brotherhood of Teamsters (the Union) adequate notice
and an opportunity to bargain over the decision and its
effects.
WE WILL NOT fail to timely notify and meaningfully
bargain with the Union over the effects of our decision to
close our blow-molding operations.
WE WILL NOT transfer bargaining unit work at our Jun-
cos facility to nonunit employees without providing the
Union with notice and an opportunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL restore the status quo ante by restoring to the
Juncos facility all injection-molding work previously
performed by bargaining-unit employees.
WE WILL notify and, on request, bargain with the Un-
ion over our decision to subcontract injection-molding
work to Alpla, and the effects of that decision.
WE WILL notify and, on request, bargain with the Un-
ion over the effects of our decision to close our blow-
molding operation.
WE WILL notify and, on request, bargain with the Un-
ion over using nonunit employees to perform bargaining
unit work at our Juncos facility.
WE WILL offer the employees laid off as a result of our
decision to subcontract the injection-molding work full
reinstatement to their former jobs or to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL make whole the employees laid off as a re-
sult of our decision to subcontract the injection-molding
work for any loss of earnings and other benefits resulting
from their layoff, less any net interim earnings, plus in-
terest, and WE WILL also make such employees whole for
reasonable search-for-work and interim employment
expenses, plus interest.
WE WILL pay unit employees affected by our failure to
timely notify and meaningfully bargain with the Union
over the effects of our decision to close our blow-
molding operation in the manner set forth in the Decision
and Order of the National Labor Relations Board, with
interest.
WE WILL make employees whole for any loss of earn-
ings and other benefits suffered as a result of transferring
bargaining unit work at our Juncos facility after March
31, 2015, to nonunit employees without providing the
Union with notice and an opportunity to bargain, plus
interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 12, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
RIGID PAK CORP.
The Board’s decision can be found at
www.nlrb.gov/case/12-CA-152811 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Ayesha K. Villegas Estrada, Esq., for the General Counsel.
Bayoan Muniz-Calderon & Ian P. Carvajal, Esqs. (Saldana
Carvajal & Velez-Rive, PSC), for the Respondent.
Jose Carreras, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This matter arises
out of a complaint and notice of hearing (the complaint) issued
RIGID PAK CORP. 9
on January 29, 2016, against Rigid Pak Corp. (the Respondent
or the Company), stemming from unfair labor practice charges
filed by Union de Tronquistas de Puerto Rico, Local 901, Inter-
national Brotherhood of Teamsters (the Union).
Pursuant to notice, I conducted a trial in San Juan, Puerto Ri-
co, on April 20 and 21, 2016, at which I afforded the parties
full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence.
ISSUES
1. Did the February 12, 20151 contract between the Re-
spondent and Alpla Caribe, Inc. (Alpla), which led to the March
31 layoff of all 28 unit employees, create a subcontracting situ-
ation coming under Fibreboard Paper Products Corp. v.NLRB,
379 U.S. 203 (1964); or a partial closing governed by First
National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981)?
2. Depending on the answer to that, did the Respondent vio-
late Section 8(a)(5) and (1) by not affording the Union an ade-
quate opportunity to bargain over the decision to lay off unit
employees and/or its effects?
3. Since on about March 31 has the Respondent used em-
ployees of Laser Products, Inc. and a former supervisor to per-
form unit work at its facility, without affording the Union no-
tice and an opportunity to bargain?
4. If the Respondent’s conduct violated the Act, is the ap-
propriate remedy restoration of the status quo ante; or an effects
bargaining remedy as per Transmarine Navigation Corp., 170
NLRB 389 (1968), and making unit employees whole for later
unit work performed by nonunit employees?
WITNESSES AND CREDIBILITY
The General Counsel called Rafael Rosario (Rosario), the
Union’s vice president, who serviced the Respondent’s unit
employees; Brenda Rosario (Brenda Rosario), who was a pro-
duction employee and shop steward; and Jose Carvajal, the
Respondent’s president and part-owner, as an adverse witness
under Section 611(c). The Respondent called Carvajal as its
sole witness in its case in chief.
Most of the pertinent facts in this case are stipulated.2 All
three witnesses seemed generally candid, and I have no reason
to doubt their truthfulness as far as relating conversations. Both
Carvajal and Brenda Rosario appeared to have detailed recall;
Rosario somewhat less so. Their testimony generally did not
differ much in substance. I note that Carvajal was quite con-
sistent on 611(c) and direct examination on what was said in his
discussions with union representatives.
The Respondent’s counsel agrees with my assessment that
Brenda Rosario was a credible witness but contends that Ro-
sario was only partially credible because he contradicted him-
self on various occasions, and that on one point, Carvajal’s
testimony should be credited over his (R. Br. 3). According to
the General Counsel, Carvajal’s “self-serving” and unsupported
testimony that labor costs were not a factor in deciding to close
was incredible (GC Br. 23–24). The briefs do not otherwise
address credibility per se.

1 All dates hereinafter occurred in 2015 unless otherwise indicated.
2 See Jt. Exhs. 1–3.
FACTS
Based on the entire record, including testimony and my ob-
servations of witness demeanor, documents, and stipulations, as
well as the posttrial briefs that the General Counsel and the
Respondent filed, I find the following:
JURISDICTION
The Respondent is a corporation with an office and place of
business in Juncos, Puerto Rico. Prior to March 31, it engaged
at its facility in Juncos (the facility) in manufacturing and dis-
tributing two types of containers and closures, injection-molded
and blow-molded. The Respondent admits to the Board’s ju-
risdiction,3 and I so find.
The Parties Collective-Bargaining History Prior to March
Since in about March 1983, the Respondent has recognized
the Union as the exclusive collective-bargaining representative
of its employees in the following unit at the facility:
All production and maintenance employees, including turners;
excluding all office and clerical employees, production con-
trollers, electricians, special project technicians, professionals,
guards, and supervisors as defined in the Act.
Such recognition was embodied in a series of collective-
bargaining agreements, the most recent of which was effective
by its terms from August 1, 2010, to July 31, 2014.4 Relevant
provisions of the agreement are:
(1) The management rights to decide “[p]roducts to be manu-
factured and their prices,” and “[m]ethods, procedures, and
the means of manufacturing, distribution and management.”
Article IV.
(2) “The Company shall not subcontract any work that is
normally done by [unit employees] if that subcontract[sic] re-
sults in laying off regular employees who are working at the
time of that subcontracting.” Article XX, section A(1).
The Respondent does not argue that any provisions in the
agreement amount to a waiver by the Union of its rights to
negotiate about subcontracting. Rather, the Respondent con-
tends that the decision to enter into the agreement with Alpla
was not subcontracting but a change in the scope and direction
of the enterprise, supported by the management-rights clause
(R. Br. 20). I also note that the General Counsel does not al-
lege that the Respondent’s actions in this case were motivated
by antiunion considerations.
By letter and email dated April 30, 2014, Union Secretary-
Treasurer Alexis Rodriguez Normadia (Rodriguez) requested
that Carvajal negotiate for a new collective-bargaining agree-
ment.5
Not until September (according to Carvajal) or December
(according to Rosario and Brenda Rosario) did the parties meet

3 GC Exh. 1(g) at 1; Jt. Exh. 1 at 2.
4 See GC Exh. 2, portions of the agreement. Part “A” of the exhibit
is the original version in Spanish, with the English translation as part
“B.” The same holds true of other exhibits originally in Spanish.
5 GC Exh. 3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
on the subject.6 Carvajal was present for the Company; and
Rosario and delegates (shop stewards) Brenda Rosario, and
David Rodriguez attended for the Union. Carvajal, Rosario,
and Brenda Rosario gave generally similar and not inconsistent
versions of what occurred.
Carvajal stated that the Company was in a bad financial situ-
ation due to sales being down; that the Company had explored
or was exploring alternatives, such as trying to get clients out-
side of Puerto Rico; and that he therefore was requesting an
extension of the current collective-bargaining agreement for
another year without any increases. He further stated that he
would not ask the Union for concessions because the cost of
labor was not the reason for the Company’s economic situation
and would not make a difference. Carvajal offered to show
Rosario the Company’s financial statements and financial in-
formation, but Rosario declined to see them. Rosario asked
that if there was an increase in health insurance, the Company
would absorb that, and Carvajal agreed. Rosario stated that the
Union would take to its members Carvajal’s proposal for an
extension.
The parties held no further negotiations and never signed an
extension agreement. Prior to March, the only further commu-
nications between Carvajal and Rosario occurred in passing,
when Rosario was at the facility and Carvajal mentioned the
Company’s continued financial difficulties.
Respondent’s Business Operation Prior to March 31
For many years, the Respondent manufactured plastic bottles
made with high-density polyethylene through a blow-molding
process, and open-head containers and lids and milk crates
using high-density polyethylene through an injection-molding
process.7 Totally different equipment (machines, molds, and
resins) were required for each of the processes, which were
performed in separate areas or sides. No unit employees were
specifically assigned to one side or the other; they worked on
both sides and even could spend part of one shift on one side
and part on the other, depending on where they were needed.
The number of unit employees reached about 100 at one
time, but by March 31, there were only 28. They were machine
operators, warehouse employees, or maintenance employees.
Unit employees were responsible for all aspects of the process
at the facility, from the manufacturing to the storing of both
lines of products in the warehouse. Nonemployee independent
truckers picked up the products and delivered them to custom-
ers.
Respondent’s Financial Situation Prior to March
As a result of economic problems in Puerto Rico and declin-
ing sales, the Respondent experienced financial difficulties in
the years immediately preceding 2015. The Respondent’s

6 In his affidavit, Rosario gave the month of the meeting as “around
August.” No one took minutes of the meeting or memoralized it in
writing, so that when it occurred and what was said has to be based
solely on witness testimony. In any event, whether the meeting took
place in August, September or December is immaterial.
7 See GC Exhs. 18, 19 (blow-molded products and injection-molded
products, respectively, manufactured in 2004); and R. Exh. 6, showing
blow-molding machines for sale in November, with photographs of the
products. Some of them were still manufactured in 2015.
Puerto Rico income tax return, filed on February 9, 2016, for
the tax year from July 1, 2014, to June 30, 2015, shows a net
operating loss of almost $903,000.8 A financial statement pre-
pared on December 18 by Luis B. Golzalez & Co., PSC, CPAs
and consultants, shows the following:9
Year ending June 30, 2014 Year ending June 30, 2015
Gross profit $374,772 minus $226,262
Income from operations
minus $217,421 minus $836,408
Net loss $275,322 $908,465
Advances from Laser Products,
$700,000 $1,500,000
Inc. (no interest)
Dividends declared and paid
$137,320 $83,010
Carvajal looked for ways to increase sales, including export-
ing out of Puerto Rico; making alliances with competitors; or
going into new products, specifically clear plastic bottles for
which there was a big market in Puerto Rico. He determined
that exporting was not feasible because the Company faced
major competition in the continental United States and Latin
America. Alpla was a major supplier of raw material for such
bottles, and in October 2014, Carvajal met with Richard Lisch,
Alpla’s general manager, to discuss the possibility of the Re-
spondent’s buying raw material from Alpla to blow clear plastic
bottles. After observing Alpla’s operation and reviewing his
situation, Carvajal came to the conclusion that the Company
had neither the capital nor the human resources necessary to
buy and efficiently run the sophisticated equipment needed. He
further determined that the Company could not stay in the plas-
tic bottling manufacturing business because it did not have the
updated equipment and cost structure necessary to compete.
Thereafter, he discussed with Lisch the alternative of having
the Respondent’s product produced at Alpla’s facility.
Respondent’s Agreement with Alpla
After negotiations, the Respondent and Alpla ultimately
signed a supply agreement on February 12.10 By its terms, the
Respondent delivered its injection-molding equipment (ma-
chines and molds) to Alpla’s plant but has remained the owner
of that equipment; Alpla is wholly responsible for manufactur-
ing, packaging, storing, and delivering the containers to the
Respondent’s customers under the Respondent’s logo;11 and the
Respondent pays Alpla for those products at a discounted rate.
The Respondent provides the raw materials for the manufactur-
ing. The Respondent also purchases blow-molding products
with its logo, for which Alpla provides the raw materials and
machines. Alpla prepares and submits to the Respondent quali-
ty control records and reports, and a reasonable number of
samples from each production run of products for quality pur-

8 R. Exh. 1. Wages for that period were approximately $363,000.
Id. at 5.
9 R. Exh. 2.
10 GC Exh. 4. See also Jt. Exh. 3 (injection-molding products that
the Respondent would purchase: lids, pails, and milk crates).
11 The Company’s name is embossed in the molds and therefore on
every container.
RIGID PAK CORP. 11
poses. The Respondent has the right, upon reasonable notice,
to send one or more of its employees to observe and inspect the
manufacturing, warehousing, and other facilities that Alpla uses
to produce, package, store, and ship products. Carvajal has
been to Alpla’s plant four times in the past year.
As a result of the agreement, the Respondent planned to en-
tirely cease manufacturing operations at its facility and to sell
the blow-making equipment. Carvajal determined that the price
Alpla would charge for manufacturing containers and selling
them to the Company would enable the Company to resell them
at small profit and pay back its debt.
Carvajal testified that he wanted to keep their negotiations
and the agreement confidential prior to the cessation of manu-
facturing operations so that his business competitors would not
try to take away his customers in advance of the closing.
Respondent’s Notification to the Union
Carvajal testified that it took him about 2 weeks after he
signed the contract, or until late February, to determine how
much time was needed to transfer the machines and have them
operating at Alpla to avoid any interruption in supplying the
Respondent’s customers.
I credit Carvajal’s uncontroverted testimony as follows. On
March 5, he called Union Secretary Treasurer Rodriguez and
requested a meeting. Rodriguez did not answer the phone.
Carvajal had heart surgery on March 6 and called Rodriguez
again on March 9. He told Rodriguez that it was “urgent” that
they sit down and meet but did not specify why because he
“didn’t want to advance any information” concerning the shut-
down.12 Rodriguez stated that the first date he had available
was on March 17.
Carvajal and Rodriguez met for about an hour at a restaurant
on March 17. Carvajal started by letting Rodriguez know that
he was closing the plant because the Company’s sustained loss-
es were over $1 million; that the Company’s injection-molding
equipment would be moved to Alpla, which would manufacture
the injection-molded products; and that the Company would go
out of the blow-molding business and sell its blow-molding
equipment. This was the first knowledge the Union had of the
Alpla agreement and resulting plant closing.
Rodriguez asked if Carvajal had any money for a severance
package, and Carvajal replied no. Carvajal asked for Rodri-
guez’ help in informing employees of the closing, and Rodri-
guez asked if he could meet with them at the facility. Carvajal
agreed. Rodriguez said that he would contact Rosales and the
union delegates to arrange to assemble the employees, and
would call Carvajal back about this.
In testifying on 611(c) examination, Carvajal said nothing
about giving Rodriguez a date for the closure; however, in later
direct examination, he testified that he told Rodriguez the clos-
ing would be “by the end of March.”13 I believe it highly likely
that Carvajal either mentioned a specific time frame for the
closing or that Rodriguez would have asked for, and been pro-
vided, with that information. It is highly implausible that the
date would not have been brought up in their conversation in

12 Tr. 190.
13 Tr. 193.
light of the momentous impact on unit employees. According-
ly, I find that Carvajal informed Rodriguez that the closure
would occur by the end of March.
Carvajal, Rosario, and Brenda Rosario all testified about
meeting after March 17 regarding the plant closure. Carvajal
and Brenda Rosario testified about attending only one meeting,
but Rosario testified that there were two. Carvajal and Rosario
gave a meeting date of March 26, whereas Brenda Rosario gave
it as April 5. Based on the contents of Carvajal’s March 30
letter to Rodriguez,14 I find that one meeting was held on
March 26.
On March 26, Carvajal and Eric Romero, the Company’s
controller, met with Rosario and Union Stewards Brenda Ro-
sario and David Rodriguez in the facility’s conference room.
Carvajal repeated what he had told Rodriguez on March 17. He
stated that the last day of manufacturing operations would be
the following day, March 27, and that the last work day for unit
employees would be March 31. Rosario asked if it would be a
total or partial shutdown, to which Carvajal replied that it was
total, and even the official clerical employees were going to be
let go. Rosario asked whether Carvajal would consider rehiring
laid-off employees if he reopened within the next 2 years, and
Carvajal said yes but that he had no plans to reopen. Romero
asked if Carvajal could give a bonus due to the closing, but he
said no because he did not have the money. Rosario asked if
the Company could advance the Christmas bonus instead of
waiting until December, and Carvajal agreed to calculate the
amounts and hand them over at closing. Rosario also asked for
liquidation for accrued sick leave and vacation leave, and he
and Carvajal agreed on a date on which the Company would
pay those amounts. Carvajal further stated that the employees
would have a month of paid medical insurance after the plant
closed because the premiums had already been paid.
By letter and email of March 30 to Rodriguez, Carvajal con-
firmed some of what was said about the closing at their March
17 meeting and at his March 26 meeting with Rosario.
On March 31, the Respondent issued layoff letters to all unit
employees.15 The only written agreement that the parties
reached regarding the closure was a stipulation that Carvajal
and Rosario signed on April 15, concerning calculation of the
Christmas bonus up until the date of the closing.16
Respondent’s Operation after March 31
As per its agreement with Alpla, the Company paid to move
all four of its injection-molding machines and its injection
molds to the Alpla facility, on April 15, 28, and May 29.17 The
Respondent sold its biggest blow-mold machine, used to manu-
facture bleach bottles, for $120,000 on about July 1; its four
remaining blow-mold machines and 26 molds, which are still at
the facility, are currently on the market for sale.18
Since March 31, the Respondent has purchased both injec-

14 GC Exh. 5. The reference therein to “Rafael Rodriguez” was an
error.
15 See GC Exh. 8 (sample letter).
16 GC Exh. 7.
17 See GC Exhs. 20–22.
18 See R. Exhs. 3, 6, 7.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
tion-molded and blow-molded products from Alpla.19 Alpla
delivers approximately 95 percent of the products that it manu-
factures for the Respondent directly to the Respondent’s cus-
tomers; the remainder is delivered to the facility, for pickup by
the Respondent’s smaller customers or for emergencies. Alpla
contracts directly with the trucking companies that make the
deliveries.
Some inventory remained at the facility after March 31. The
Respondent had nonunit employees move left over inventory to
containers, for delivery to customers. These included Edward
Rivera Mojica, who was working as a Company supervisor in
the warehouse in March. No raw materials are delivered to the
facility; the raw materials that the Respondent buys for its in-
jection-molded products are delivered directly to Alpla.
Carvajal is president of Laser Products, Inc. (Laser), which
owns the property on which the facility is located and was one
of Respondent’s customers. Laser is engaged in packaging
household chemicals and producing a bleach. It now has an
account with Alpla, and the Respondent no longer provides it
with any product. Laser uses the facility’s warehouse for its
finished products. The General Counsel does not contend that
Laser is an alter ego of, or a successor employer to, the Re-
spondent.
Carvajal had Laser employees perform unit work at the facil-
ity the weeks ending April 19 and May 3.20 In the first week,
six employees worked for a total of 72 hours and were paid
$830.84; in the second week, eight employees worked for a
total of 275 hours and were paid $2994. They produced both
injection containers and blow bottles, and some of them loaded
trailers. The Respondent never gave the Union prior notice of
this.
On May 18, the Union picketed the facility. Carvajal invited
Rodriguez, Rosario, and Brenda Rosario inside. Rodriguez
asked why he was still in production when he had allegedly
closed the business, and stated that unit employees should do
that work. Carvajal denied this, saying that he had to turn on
the machines in order to keep them in working condition before
moving them out of the building. He explained that he did not
call unit employees because it would have been a nuisance for
them due to the small amount of hours that they have to report
to the unemployment office. Brenda Rosario pointed out that
there was still product in the plant and that moving product
inside the facility was unit work.
That same day, Rodriguez sent a follow-up letter and email
to Carvajal, confirming what the Union had observed as to
production work and movement of stored merchandise; reiterat-
ing that such was unit work; requesting discussions about re-
suming operations with unit personnel; and demanding that unit
employees be paid for the work that was performed by nonun-
ion personnel.21
Currently, three Laser employees, including Mojica, handle
product at the facility. Approximately 90 percent is household
chemicals for Laser; the remainder is injection-mold products
that are manufactured by Alpla for the Company and delivered

19 See GC Exhs. 12–16.
20 See GC Exhs. 10, 11.
21 GC Exh. 9.
for pickup by small customers. No manufacturing is done at
the facility. The Company presently employs three administra-
tive employees, who work in accounting; Carvajal’s nephew; a
messenger; a handyman, who does maintenance and cleaning;
and Carvajal. These employees worked for the Company be-
fore March 31.
Prior to the closing, the Respondent’s utility and mainte-
nance costs were nearly $2 million a year. As a result of clos-
ing the manufacturing operation at the facility, the Respondent
has greatly reduced maintenance, infrastructure, and utility
costs, and is no longer responsible for defective products.
The Respondent continues to advertise as a manufacturer
of both injection-molded and blow-molded products. See GC
Exhs. 17–19.
Analysis and Conclusions
The Appropriate Analytical Framework
The threshold issue is how to properly characterize the na-
ture of the change in the Respondent’s operation because that
will determine the scope of the Respondent’s bargaining obli-
gation. The General Counsel take the position that a subcon-
tracting analysis is appropriate and that the Respondent had an
obligation to bargain over both the decision and its effects, as
per Fibreboard Corp. v. NLRB (Fibreboard), 379 U.S. 203
(1964) (GC Br. 16, et. seq.). On the other hand, the Respond-
ent contends that it closed its operations and changed the scope
and direction of its business, so that its bargaining obligation
was limited to bargaining over the effects but not over the deci-
sion itself, under First National Maintenance Corp. v. NLRB
(First National), 452 U.S. 666 (1981) (R. Br. 14, et. seq.).
Section 8(d) of the Act provides than an employer has the
obligation to bargain with respect to wages, hours, and other
terms and conditions of employment. In Fibreboard, above at
210, et. seq., the Court determined that contracting out of unit
work that unit employees are capable of continuing to perform
comes under Section 8(d) and is therefore a mandatory subject
of bargaining. The Court noted, id. at 213–214:
The facts of the present case illustrate the propriety of submit-
ting the dispute to collective negotiation. The Company’s de-
cision to contract out the maintenance work did not alter the
Company’s basic operation. The maintenance work still had
to be performed in the plant. No capital investment was con-
templated; the Company merely replaced existing employees
with those of an independent contractor to do the same work
under similar conditions of employment. Therefore, to re-
quire the employer to bargain about the matter would not sig-
nificantly abridge his freedom to manage the business.
The Court also emphasized that the respondent’s desire to re-
duce labor costs was at the base of the employer’s decision to
subcontract and that this was a matter “peculiarly suitable for
resolution within the collective bargaining framework.” Ibid.
The Court clarified that its decision was limited to subcon-
tracting where bargaining unit employees are replaced with
those of an independent contractor to do the same work under
similar conditions of employment (“Our decision need not and
does not encompass other forms of ‘contracting out’ or ‘sub-
contracting’ which arise daily in our complex economy.” Id. at
RIGID PAK CORP. 13
215).
In First National, above, the Court discussed entrepreneurial
management decisions involving a change in the scope and
direction of the enterprise that have a direct impact on em-
ployment but have as their focus only economic profitability
wholly apart from the employment relationship. The Court,
balancing the benefits to be derived from collective bargaining
with management’s need for freedom to make decisions neces-
sary to run a profitable business, set forth the following test:
[I]n view of an employer’s need for unencumbered deci-
sionmaking, bargaining over managements decisions that
have a substantial impact on the continued availability of em-
ployment should be required only if the benefit, for labor-
management relations and the collective-bargaining process,
outweighs the burden placed on the conduct of the business.
452 U.S. at 679. In addressing a partial shutdown for purely
economic reasons, the Court distinguished Fibreboard and
concluded, id. at 686 (emphasis in original):
[T]he harm likely to be done to an employer’s need to operate
freely in deciding whether to shut down part of its business
for purely economic reasons outweighs the incremental bene-
fit that might be gained through the union’s participating in
making the decision, and we hold that the decision itself is not
part of § 8(d)’s ‘terms and conditions’. . . .”
The Court noted that the employer had no intention to replace
the discharged employees or to move the operation elsewhere,
that the sole purpose for the closing was to reduce economic
loss, and that the employer’s decision was based on a factor
over which the union had no control or authority. The Court
was careful to clarify that its holding was limited to the particu-
lar situation presented and was not intended to cover other
types of management decisions, such as “plant relocations,
sales, other kinds of subcontracting, automation, etc., which are
to be considered on their particular facts.” Id. at 686 fn. 22.
Accordingly, the Court concluded that the employer’s bar-
gaining obligation was limited to bargaining over the effects of
the decision, “in a meaningful manner and at a meaningful
time.” Id. at 681–682.
In Dubuque Packing Co., 303 NLRB 386, 390–391 (1991),
the Board harmonized the differing results in Fibreboard and
First National in the context of an employer’s relocating unit
work from one of its plants to another of its plants. The Board
noted that in First National, the employer did not replace its
employees or move its operation elsewhere, whereas in Fibre-
board, the employer replaced existing employees with those of
an independent contractor (at its facility). In First National, the
employer made a decision whether to be in business at all,
whereas in Fibreboard, the employer’s decision did not change
the company’s basic operation. Finally, in First National, the
decision was based on the amount of customer payment,
whereas in Fibreboard, reduction of labor costs was the core
reason for the decision to subcontract.
In Torrington Industries, 307 NLRB 809, 810 (1992), the
Board did not apply the burden-shifting test set out in Dubuque
Packing to a layoff of unit employees and their replacement
with a nonunit employee and independent contractors at the
respondent’s facility. Rather, the Board applied Fibreboard
when the employer replaces employees in the existing bargain-
ing unit with those of a contractor to perform the same work
and “virtually all that is changed through the subcontracting is
the identity of the employees doing the work.” Id. at 811. See
also Mi Pueblo Foods, 360 NLRB No. 116, slip op. at 3 (2014).
As the Board recognized in Bob’s Big Boy Family Restau-
rants, 264 NLRB 1369, 1370 (1982) (footnotes omitted), “The
distinction between subcontracting and partial closing . . . is not
always readily apparent,” and, accordingly,
[I]t is incumbent on the Board to review the particular facts
presented in each case to determine whether the employer’s
action involves an aspect of the employer/employee relation-
ship that is amenable to resolution through bargaining with
the union since it involves issues “particularly suitable for
resolution within the collective bargaining framework.” If so,
Respondent will be required to bargain over the decision. If,
however, the employer’s action is one that is not suitable for
resolution through collective bargaining because it represents
“a significant change in operations,” or a decision lying at
“the very core of entrepreneurial control,” the decision will
not fall within the scope of the employer’s mandatory bar-
gaining obligation.
Factors to be examined are the nature of the employer’s busi-
ness before and after the action taken, the extent of capital ex-
penditures, the bases for the action, and, in general, the ability
of the union to engage in meaningful bargaining in view of the
employer’s situation and objectives. Ibid.
In that case, the respondent had completely phased out its
shrimp processing operation (one department out of five) at the
facility in question, sold the department’s machines to Fish-
king, and returned other machines to the lessor. The Board, in
finding that this constituted subcontracting rather than a partial
closing, noted at the outset that:
Respondent did not engage in what can be objectively termed
a major shift in the direction of the Company. Both before
and after the subcontract, Respondent engaged in the business
of providing prepared foodstuffs to its various stores. Indeed,
it appears that Respondent still supplies processed shrimp to
its constituent restaurants. The only difference is that the
processing work is now performed by Fishking employees
pursuant to the subcontract rather than by Respondent’s em-
ployees. Accordingly, the nature and direction of Respond-
ent’s business was not substantially altered by the subcontract.
Id. at 1371 (footnotes omitted; emphasis in original). Secondly,
the Board noted that when the subcontracting arrangement
became operative, the respondent was not required to engage in
any substantial capital restructuring or investment, that the
plant area devoted to shrimp processing remained part of the
respondent’s facility, and that the respondent retained substan-
tial ownership of the equipment that had been used in shrimp
processing. Ibid.
Accordingly, the Board concluded that the respondent’s de-
cision to subcontract its shrimp processing operation did not
represent a substantial change in the nature or direction of the
respondent’s business and did not otherwise entail sufficient
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
capital restructuring to remove the decision from the scope of
its mandatory bargaining obligation.
In O.G.S. Technologies, Inc., 356 NLRB 642, 645, (2011),
the Board engaged in a similar analysis in concluding that the
respondent’s termination of a portion of it operation constituted
subcontracting that required bargaining over both the decision
and its effects, concluding:
In contrast to First National Maintenance, OGS made certain
operational changes, but they did not amount to a ‘partial
closing’ or other ‘change in the scope and direction of the en-
terprise,’ which remained devoted to the manufacture and sale
of brass buttons to the same range of customers. Before and
after the decision to subcontract die cutting, OGS produced
and supplied brass buttons to customers. . . . The decision at
issue simply resulted in a marginal increase in the percentage
of cutting work the Respondent subcontracted and a modest
change in the functions performed in-house, but not the aban-
donment of a line of business or even the contraction of the
existing business.
See also Chemical Solvents, Inc., 362 NLRB No. 164, slip op.
at 7 (2015) (outsourcing of trucking operation at facility was
appropriately classified as subcontracting, a mandatory subject
of bargaining).
The core question, then, is whether the nature and direction
of Respondent’s business was substantially altered by its con-
tract with Alpla. If so, then the change in operation is more
appropriately treated as a partial closing that comes under First
National, rather than as a subcontract situation under Fibre-
board. The Respondent argues (R. Br. 19–20) that it is no
longer a manufacturer but a reseller and that it has no control
whatsoever over the Alpla employees who now operate the
machines. On the contrary, the General Counsel contends (GC
Br. at 18) that the Respondent’s basic operation continues un-
changed, except for the fact that Alpla is providing the labor,
and that the Respondent remains in the business of producing
and supplying plastic bottles and containers that are sold to the
same customers as in the past.
The Respondent did not go out of business or even complete-
ly close its operation at the facility. Thus, even today, some
injection-mold products are transported from Alpla, stored in
the facility warehouse, and picked up there by customers. Prior
to Mach 31, bargaining unit employees moved product inside
the facility, and some of this work continues today.
The Respondent is not totally divorced from the production
process of injection-mold products at Alpla. Thus, the Re-
spondent still owns the injection-mold machinery and molds,
and provides Alpla with the raw material for those products.
Alpla prepares and submits to the Respondent quality control
records and reports, and a reasonable number of samples from
each production run of products for quality purposes. The Re-
spondent is given the right, upon reasonable notice, to send one
or more of its employees to observe and inspect the manufac-
turing, warehousing and other facilities that Alpla uses to pro-
duce, package, store and ship products, and Carvajal did this
four times during the past year. The Respondent therefore
maintains some oversight authority over the manufacturing
process and, consequently, Alpla does not have unfettered sole
control.
Moreover, the Respondent still sells injection-mold products
(with the Respondent’s name and logo) directly to customers
that it supplied prior to the subcontracting. In sum, the Re-
spondent has not closed the injection-mold portion of its opera-
tion but rather transferred the production to Alpla.
As far as the blow-mold side of the operation, no production
has occurred at the facility (other than during 2 weeks in 2015),
but the Respondent does purchase some blow-molded products
from Alpla and resells them to customers that it had before
March 31. One of the five blow-mold machines has been sold;
the other four are still maintained at the facility and remain for
sale. The Respondent continues to advertise itself as a supplier
of both injection-molded and blow-molded products. Finally,
the Respondent engaged in no capital restructuring.
Based on the totality of circumstances above, I conclude that
despite changes in the production situs and in the employer of
the employees who produce the products, the nature of the Re-
spondent’s business, including many of its types of products
and its customers, remained substantially unchanged. Thus, the
nature of the change in the operation was a subcontracting situ-
ation, not a partial plant closure. Even if there was a partial
closure (of the blow-mold operation), bargaining unit employ-
ees worked interchangeably with blow-molded and injection-
molded products, and bifurcating the two operations in terms of
the bargaining obligation would be infeasible and unworkable.
The Respondent points out that its labor costs in 2014–2015
were a little over $360,000, whereas its net losses were over
$900,000, and argues that no amount of concessions from the
Union would have made any difference in the decision to con-
tract with Alpla. Carvajal testified to this effect. However, in
Pertec Computer Corp., 284 NLRB 810, 810 at fn. 3 (1987),
decision supplemented 298 NLRB 609 (1990), enfd. in relevant
part sub nom. Olivetti Office U.S.A., Inc. v. NLRB, 926 F.2d
181 (2d Cir. 1991), cert. denied 502 U.S. 856 (1991), the Board
discounted the bare assertion that bargaining over the decision
to relocate and subcontract unit work would be pointless be-
cause the union would never agree to wage cuts substantial
enough to make reversal of the decision economically sound:
Indeed, to conclude in advance of bargaining that no agree-
ment is possible is the antithesis of the Act’s objective of
channeling differences, however profound, into a process that
promises at least the hope of mutual agreement. See H. K.
Porter Co. v. NLRB, 397 U.S. 99, 103 (1970). On the other
hand, once bargaining to impasse has occurred, the futility of
continuing is clear. Also see NLRB v. Katz, 369 U.S. 736
(1962).
See also Geiger Ready-Mix Co. of Kansas City, 315 NLRB
1021, 1032 (1994) (“[a]n employer must offer something more
than a self-serving assertion that there was nothing the bargain-
ing agent of its unionized employees could do to change its
mind.”).
Nor has the Respondent shown that bargaining to impasse or
agreement over the decision would have jeopardized its busi-
ness in any way. Pertec Computer Corp., above at 811; see
also Olivetti Office U.S.A. v. NLRB, above at 186. In this re-
gard, such negotiations would not necessarily have threatened
RIGID PAK CORP. 15
the Respondent’s confidentiality concerns during its negotia-
tions with Alpla. The Union presumably would have had the
opportunity to provide suggestions on ways to reduce the Re-
spondent’s cost of conducting business at the facility using unit
employees, not to have been made privy to the details of pro-
posed contractual arrangements between the Respondent and
Alpla. To assume that the Union would have breached the
Respondent’s confidentiality concerns is as unwarranted as
assuming bargaining over the decision would have been futile.
See Pertec Computer, ibid. (disclosure of information ordered
where the respondent had not shown the union to be unreliable
in respecting confidentiality agreements); see also People Care,
Inc., 299 NLRB 875, 875–876 (1990).
Accordingly, I conclude that the Respondent was obliged to
engage in bargaining over the decision to contract out unit work
with Alpla and lay off unit employees.
Effects Bargaining
Even if the Respondent had not been obliged to bargain over
the decision to subcontract, it nonetheless remained obligated to
bargain over the effects of the decision “in a meaningful man-
ner and at a meaningful time.” First National, above, at 681–
682; Miami Rivet of Puerto Rico, 318 NLRB 769, 772 (1995).
As the Board stated in Allison Corp., 330 NLRB 1363, 1365 fn.
14 (2000), “Effects bargaining can include such topics as
layoffs, severance pay, health insurance coverage and conver-
sion rights, preferential hiring at other of the employer’s opera-
tions, and reference letters for jobs with other employers.”
Effects bargaining must occur sufficiently before actual im-
plementation of the decision so that the union is not presented
with a fait accompli. Komatsu America Corp., 342 NLRB 649,
649 (2004); Woodland Clinic, 331 NLRB 735, 738 (2000).
Relevant to this determination is whether the union is afforded
an opportunity to bargain at a time when it still represents em-
ployees upon whom the company relies for services, thus al-
lowing the union to retain some measure of bargaining power.
Komatsu America Corp., ibid; Metropolitan Teletronics Corp.,
279 NLRB 957, 959 (1986), enfd. mem. 819 F.2d 1130 (2d Cir.
1987).
The Respondent avers that it met its obligation to engage in
effects bargaining (R. Br. 22–23). The General Counsel con-
tends that the timing of the Respondent’s notification to the
Union, as well as Carvajal’s misleading the Union about
postlayoff labor needs, precluded any meaningful effects bar-
gaining (GC Br. 27–28). I agree with the General Counsel for
the following reasons.
The Respondent executed its contract with Alpla on Febru-
ary12 yet Carvajal admittedly did not tell the Union of the plant
closure until March 17, over a month later and less than 2
weeks before the last working day of unit employees. Carvajal
testified that it took him about 2 weeks after February 12 to
arrive at an exact closing date, but at the time he signed the
Alpla agreement, he certainly must already have contemplated
a general time frame for the closing. I would expect this of an
experienced business person such as Carvajal.
Carvajal’s telling Rodriguez on March 9 that it was “urgent”
that they meet failed to amount to valid notice of the shutdown.
In Penntech Papers, Inc., 706 F.2d 18, 27 (1st Cir. 1983), the
First Circuit Court of Appeals rejected the respondents’ argu-
ment that the unions were put on notice of a possible shutdown
when a management representative made “an oblique reference
to a possible closure,” instead finding that “a vague remark
cannot pass for ‘reasonable notice’ of a shutdown as mandated
by the Act.” Carvajal’s remark was wholly ambiguous and
gave absolutely no hint of a shutdown.
Carvajal’s asserted reason for not disclosing the impending
shutdown to Rodriguez on March 9—confidentiality con-
cerns—also fails as a valid defense. Indeed, in Williamette Tug
& Barge Co., 300 NLRB 282, 282–283 (1990) (footnotes omit-
ted), the Board recognized an employer’s need for confidential-
ity during negotiations to sell a business but concluded that
such a legitimate concern “does not obviate the employer’s
duty to give pre-implementation notice to the union to allow
time for effects bargaining, provision for which may be negoti-
ated in the sales agreement.” The Board went on to hold that:
[B]arring particularly unusual or emergency circumstances,
the union’s right to discuss with the employer how the impact
of the sale on the employees can be ameliorated must be
reckoned with . . . sufficiently before its actual implementa-
tion so that the union is not confronted at the bargaining table
with a sale that is a fait accompli.
Id. at 283. See also Pertec Computer Corp., above; People
Care, Inc., above.
In Williamette Tug, the Board stated that same-day notice is
“clearly insufficient” but did not determine “exactly how many
days’ notice” would be adequate. Id. at 283; see also Compact
Video Services, Inc., 319 NLRB 131, 131 fn. 1 (1995) (the
Board specifically declined to pass on the judge’s conclusion
that notice had to be given by the date on which the sales con-
tract was executed). See also Pertec Computer Corp., supra;
People Care, Inc., supra. The Respondent has not contended
any unusual or emergency circumstances.
Accordingly, I conclude that the Respondent did not have
good reason to wait until March 17 to notify the Union of the
plant closure and the layoff of unit employees, thereby depriv-
ing the Union of more time to negotiate the effects thereof. The
Union could have been more assertive in negotiating, but I
cannot say that the result would have been the same had the
Union been notified earlier and had more time to talk with em-
ployees, formulate proposals, and bargain over them with the
Respondent.
On March 26, Rosario asked if the shutdown would be total
or partial, to which Carvajal replied that it was total, and even
the official clerical employees were going to be let go. Howev-
er, it is undisputed that Carvajal had Laser employees perform
unit work at the facility the weeks ending April 9 and May 3,
for a total of 347 hours. Some of them produced both injection
containers and mold bottles, and some of them loaded trailers.
Merchandise was also moved in the warehouse after March 31.
Thus, contrary to what Carvajal represented, unit work was in
fact performed at the facility after all of the unit employees
were laid off.
The Respondent (R. Br. 23–24) contends that the Union
waived its right to bargain about the postclosing warehouse
work related to moving merchandise produced prior to the clos-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
ing. Crediting Carvajal, the Union mentioned nothing about
this during effects bargaining even though, the Respondent
argues, the Union had to know that there would be leftover
merchandise that would have to be moved and loaded into trail-
ers.
Waiver of a right to bargain must be clear and unmistakable.
Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983);
Allison Corp., above at 1365 (“[I]t must be shown that the mat-
ter claimed to have been waived was fully discussed by the
parties and that the party alleged to have waived its rights con-
sciously yielded its interest in the matter.”). See also Provena
St. Joseph Medical Center, 350 NLRB 808, 810 et seq. (2007).
If the matter of the above work was not even mentioned during
effects bargaining, then ipso facto it could not have been “fully
discussed,” and the Union could not have “consciously yielded
its interest.” Accordingly, I conclude that there was no such
waiver.
For the above reasons, I further conclude that the Respond-
ent failed to meet its obligation to bargain over the effects of
the contracting out of unit work and layoff of unit employees.
Nonunit Employees Performing Unit Work at the Facility
after March 31
Assignment of work is a mandatory subject of bargaining.
WCCO-TV, 362 NLRB No. 101, slip op. at 2 (2015); Regal
Cinemas, Inc., 334 NLRB 304, 304 (2001), enfd. 317 F.3d 300
(D.C. Cir. 2003) (2003). Thus, an employer violates the Act by
reassigning work performed by bargaining unit employees to
supervisors or other individuals outside the unit without provid-
ing the collective-bargaining representative notice and an op-
portunity to bargain. St. George Warehouse, Inc., 341 NLRB
904, 904–906, 924 (2004), enfd. 420 F.3d 294 (3d Cir. 2005);
Stevens International, Inc., 337 NLRB 143, 143 (2001); Regal
Cinemas, Inc., above. This obligation is not lessened because
the transfer is motivated by economic considerations. Talbert
Mfg., Inc., 264 NLRB 1051, 1056 (1982).
Following the layoffs of all unit employees, the Respondent
used employees of Laser and former supervisor Mojica to move
leftover product in the warehouse. Laser employees performed
production work at the facility during the weeks of April 9 and
May 3. Carvajal did not have the prerogative of deciding for
the laid off employees that they would not want to work a small
number of hours, but should have given them the opportunity to
make their own decisions. Currently, three Laser employees,
including Mojica, at the facility handle injection-mold products
that are manufactured by Alpla for the Company and delivered
for pickup by small customers.
The Respondent does not dispute that all of the above work
was performed by bargaining-unit employees prior to March 31
and that the Union was never afforded advance notice that any
of it would be performed by nonbargaining-unit employees.
Accordingly, I conclude that the Respondent violated Sec-
tion 8(a)(5) and (1) by transferring bargaining unit work to
Laser employees and former supervisor Mojica without provid-
ing the Union with notice and an opportunity to bargain.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2.By the following conduct, the Respondent engaged in un-
fair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act and violated Section 8(a)(5) and
(1) of the Act:
(a) Laid off all unit employees on March 31, 2015, without
having afforded the Union adequate notice and an opportunity
to meaningfully bargain over the decision to subcontract unit
work and the effects of that decision.
(b) Thereafter transferred bargaining unit work at the facility
to nonunit employees without providing the Union with notice
and an opportunity to bargain.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The General Counsel argues that the appropriate remedy
would be an order directing the Respondent to restore the status
quo ante. I do not deem such remedy suitable here. As in
Bob’s Big Boy Family Restaurant, supra, where the Board de-
clined to order such a remedy, it is clear that the Respondent
subcontracted its operation for nondiscriminatory economic and
related business reasons. The Respondent was in serious finan-
cial trouble prior to the March 31 layoffs, has a firmly-
established contractual relationship with Alpla; has transferred
the entire production operation to Alpla, has gone to the ex-
pense of moving injection-mold equipment to Alpla; and has
already sold one of the blow-mold machines. This is not a case
where only one department or portion of a facility has been
closed, or only some of the unit employees have been laid off,
in which event restoration would be relatively simple. In these
circumstances, I am “reluctant to compel Respondent to restore
its previous operation and modify its production one or more
times depending upon the results of its bargaining with the
Union.” Id. at 1372. In sum, ordering restoration of the status
quo ante would place an unreasonable hardship on the Re-
spondent and possibly jeopardize its contract with Alpla, poten-
tially throwing its entire operation into chaos and resulting in
great financial detriment to the Company without any benefit to
unit employees.22
The General Counsel contends, in the alternative, that I
should order a Transmarine23 remedy, and I agree that “effec-
tuation of the purposes and policies of the Act requires that the
discharged employees be ‘reimbursed for such losses until such
times as the Respondent remedies its violation[s] by doing what
it should have done in the first place.’” Ibid, citing Winn-Dixie
Stores, 147 NLRB 788, 792 (1964).
Accordingly, I order the Respondent to bargain with the Un-
ion about the decision to subcontract unit work to Alpla, and its
effects. I further order the Respondent to pay employees who
were laid off on March 31 their normal wages when in the Re-

22 I recognize that Carvajal has related business interests (i.e., Laser
and possibly other companies ), but the General Counsel has not al-
leged any alter ego relationships that might bear on this analysis and
lead to a contrary conclusion, and I will not engage in speculation over
Carvajal’s overall financial situation.
23 Transmarine Navigation Corp., 170 NLRB 389 (1968).
RIGID PAK CORP. 17
spondent’s employ from 5 days after the date of this decision
until the occurrence of the earliest of the following conditions:
(1) the Respondent bargains to agreement with the Union about
the decision to subcontract unit work to Alpla, and the effects
thereof; (2) the parties reach a bona fide impasse in bargaining;
(3) the Union fails to request bargaining within 5 days after the
receipt of this decision, or to commence negotiations within 5
days after receipt of the Respondent’s notice of its desire to
bargain with the Union; or (4) the Union subsequently fails to
bargain in good faith. In no event shall the sum paid to any of
the employees exceed the amount he or she would have earned
as wages from the date the employee was laid off to the time he
or she secured equivalent employment elsewhere, or the date on
which the Respondent shall have offered to bargain in good
faith, whichever occurs sooner. However, in no event shall this
sum be less than the employee would have earned for a 2-week
period at the rate of his or her normal wages when last in the
Respondent’s employ. Backpay shall be based on the earnings
that the employees would normally have received during the
applicable period, less any interim net earnings, and shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010).
In addition, the Respondent shall compensate employees for
the adverse tax consequences, if any, of receiving a lump-sum
backpay award and to file a report with the Regional Director
for Region 12, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar years.
See Advoserv of New Jersey, Inc., 363 NLRB No. 143 (2016);
Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101
(2014).
The General Counsel also seeks an order requiring the Re-
spondent to reimburse the laid off employees for search-for-
work and work-related expenses that they have incurred while
searching for work regardless of whether they received interim
earnings for a particular quarter. Those employees are entitled
to reimbursement for expenses incurred in their search for inter-
im employment, but at present the Board treats such expenses
as an offset to an employee’s interim earnings rather than cal-
culating them separately. West Texas Utilities Co., 109 NLRB
936, 939 fn. 3 (1954). I am obliged to follow existing Board
precendent. See Pathmark Stores, Inc., 342 NLRB 378, 378 fn.
1 (2004); Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984).
Therefore, I must deny the General Counsel’s request for this
additional remedy.
The General Counsel has also requested that, along with a
Transmarine remedy, I order that unit employees be made
whole for later unit work performed by nonunit employees.
However, but for the Respondent’s agreement with Alpla and
the elimination of all production at the facility, this would not
have occurred. As such, the violation appears to be subsumed
within the violation of failing to bargain over the decision to
subcontract to Alpla, and the effects thereof.
I order that the appropriate notice be posted in Spanish and
English.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended24
ORDER
The Respondent, Rigid Pak Corp., Juncos, Puerto Rico, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off unit employees and subcontracting their work
without first affording the Union de Tronquistas de Puerto Ri-
co, Local 901, International Brotherhood of Teamsters (the
Union) adequate notice and an opportunity to bargain over the
decision to subcontract the work, and its effects.
(b) Transferring bargaining unit work at the facility to non-
unit employees without first affording the Union adequate no-
tice and an opportunity to bargain.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Bargain, on request, with the Union about the decision to
subcontract unit work to Alpla, and its effects.
(b) Bargain, on request, with the Union about using nonunit
employees to perform bargaining unit work at the facility.
(c) Pay employees who were laid off on March 31 in the
manner set forth in the remedy section of this decision.
(d) 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
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Juncos, Puerto Rico, copies of the attached notice
marked “Appendix,”25 in Spanish and English. Copies of the
notice, on forms provided by the Regional Director for Region
12, after being signed by the 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. Reasona-
ble steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, 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

24 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.
25 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 BOARD18
Respondent at any time since March 31, 2015.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. June 8, 2016
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
Choose not to engage in any of these protected activi-
ties.
An employer subject to the National Labor Relations Act must
collectively bargain with the labor organization that represents
its employees concerning wages, hours, and working condi-
tions.
The Union de Tronquistas de Puerto Rico, Local 901, Interna-
tional Brotherhood of Teamsters (the Union) represents a unit
of our production and maintenance employees.
WE WILL NOT subcontract unit work and lay you off without
first affording the Union adequate notice and an opportunity to
bargain over the decision to subcontract the work, and its ef-
fects on you.
WE WILL NOT transfer unit work at our facility to nonunit
employees without first affording the Union adequate notice
and an opportunity to bargain.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your rights under Sec-
tion 7 of the Act, as set forth at the top of this notice.
WE WILL, on request, bargain in good faith with the Union
about our decision to subcontract unit work to Alpla Caribe,
Inc., and its effects on you.
WE WILL, on request, bargain in good faith with the Union
about our using nonunit employees to perform unit work at our
facility.
WE WILL pay you in the manner set forth in the remedy sec-
tion of this decision.
RIDIG PAK CORP.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/12-CA-152811 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.