Tramont Manufacturing, LLC

National Labor Relations Board - Administrative Judge Opinions

Jan 28, 2016

18-CA-155608 (N.L.R.B. Jan. 28, 2016)

JD–08–16
Milwaukee, WI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
TRAMONT MANUFACTURING, LLC
Respondent
and Case 18–CA–155608
UNITED ELECTRICAL, RADIO AND MACHINE WORKERS
OF AMERICA, LOCAL 1103
Charging Party
Tabitha Boerschinger, Esq.
for the General Counsel.
Tony J. Renning, Esq.
for the Respondent.
DECISION
STATEMENT OF THE CASE
SHARON LEVINSON STECKLER, Administrative Law Judge. This case was tried in
Milwaukee, Wisconsin on December 10, 2015. The United Electrical, Radio and Machine
Workers of America, Local 1103 (Local 1103)1 filed the charge on July 8, 20152 and the General
Counsel issued the complaint on September 30, 2015. Respondent Tramont Manufacturing,
LLC (Respondent) filed its answer on October 12 and an amended answer on November 24.
The complaint alleges that Respondent violated Section 8(a)(5) of the Act when it failed
to notify the Union about laying off 12 employees and failed to give the Union an opportunity to
bargain over the effects of the layoff. Respondent admits that it laid off the employees and that
layoffs are a mandatory subject of bargaining, but denies any wrongdoing.
The parties were given a full opportunity to participate in the hearing, to introduce
relevant evidence, to examine and cross-examine witnesses, and to file briefs. On the entire

1 At hearing, General Counsel moved to amend the complaint to reflect that the United Electrical,
Radio and Machine Workers of America (the Union), instead of Local 1103, was the certified and
recognized bargaining agent. Respondent had no objection and the amendment was granted.
2 All dates are in 2015 unless otherwise indicated.
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2
record, including my observation of the demeanor of the witnesses,3 and after considering the
briefs filed by General Counsel and Respondent Tramont LLC, I make the following
FINDINGS OF FACT
5
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a limited liability corporation, manufactures diesel engines and parts at its
facility in Milwaukee, Wisconsin. Respondent admits, and I find, that Respondent sold and
shipped from its Milwaukee, Wisconsin facility good valued in excess of $50,000 directly to 10
points outside the State of Wisconsin. Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.
I also find that Local 1103 and the Union are labor organizations within the meaning of
Section 2(5) of the Act. 15
II. FACTS4
A. Organization of Respondent and Implementation of the Handbook as Terms and
Conditions of Employment20
Respondent Tramont Manufacturing, LLC (Respondent) manufactures diesel engines and
parts. The company is run by President Nand. The company has two executive vice presidents,
Vijay Raichura and Frank Langenecker. Raichura is responsible for accounting, finance,
purchasing and human resources. 25
Respondent made an asset purchase from the predecessor company, Tramont
Corporation, in May 2014. The Union had been certified as the bargaining agent for the
production and maintenance employees at the facility in 2003. As a condition of the asset
purchase, Respondent agreed to recognize and bargain in good faith with the International 30
Union. Respondent, however, would not agree to extend the collective bargaining agreement.

3 Although I have included citations to the record to highlight particular testimony or exhibits, my
findings and conclusions are not based solely on those specific record citations, but rather on my review
and consideration of the entire record for this case. My findings of fact encompass the credible
testimony, evidence presented, and logical inferences.
4 Most of the facts within this decision are based upon undisputed documentary evidence. Where
necessary, I make credibility determinations within this section. The credibility analysis may rely upon a
variety of factors, including, but not limited to, the context of the witness testimony, the weight of the
respective evidence, established or admitted facts, inherent probabilities and reasonable inferences that
may be drawn from the record as a whole. Double D Construction Group, 339 NLRB 303, 303–305
(2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321
NLRB 586, 589 (1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings regarding any
witness are not likely to be an all-or-nothing determination and I may believe that a witness testified
credibly regarding one fact but not on another. Daikichi Sushi, 335 NLRB at 622.
.
JD–08–16
3
(GC Exh. 2, p. 5) Respondent admits that it has continued as the employing entity and is a
successor to Tramont Corporation.5
Instead of applying the collective bargaining agreement that the predecessor and Union
maintained, Respondent announced that the terms and conditions of employment were controlled 5
by a handbook and distributed handbooks to the employees. In 2014, the Union and Respondent
met for one bargaining session for a new collective bargaining agreement. The parties
mentioned layoffs but did not reach any agreements.
The handbook included a provision regarding layoffs. The provision explained how 10
employees would be selected for a layoff, but mentioned nothing about what might be the effects
of a layoff. (GC Exh. 10, pp. 19–20).
B. Respondent Lays Off 12 Employees on February 9, 2015
15
On January 29, Respondent began to plan for a reduction in hours due to economic
concerns and select employees for a layoff. (Tr. 41; GC Exh. 7). Before the 12 employees were
laid off on February 9, Respondent did not notify the Union about the pending layoff. (Tr. 43,
96–97).
20
On February 9, Human Resources Administrator Stephanie Pagan distributed layoff
notices to 12 employees. The notices advised the employees that the layoff was effective
immediately. Each notice advised employees that February 9 was their last day and provided
information on filing unemployment benefits, continuing health care coverage under COBRA,
and determining how paid time off (PTO) could be handled. (GC Exh. 3) 25
C. The Union Makes an Information Request and Meets with Respondent
One of the laid off employees was Lauro Bonilla, the president of Local 1103. Bonilla
worked for the predecessor for 21 years and for Respondent since its takeover in May 2014. He 30
testified that, on February 9, Pagan told him to go clean out everything and go to her office. She
told him that he was laid off. He asked if he was the only employee laid off. She told him there
were others. He asked for a list of those laid off. Pagan said she could not respond but would
talk to the owner. (Tr. 89)
35
About February 10, Bonilla notified the Union’s national representative, Timothy Curtin,
of the layoff. Curtin instructed Bonilla to make an information request for the names of the laid
off employees. (Tr. 90–91) Within a day or two after his layoff, Bonilla returned to the facility
and requested HR Administrator Pagan provide him with a list of laid off employees. (Tr. 35)
Pagan called Executive Vice President Raichura, who came to the office. Raichura asked 40
Bonilla whether he was there for personal business or union business; Bonilla testified that he
said, “Both.” Raichura testified that he was there on personal business but did request a list of
employees. (Tr. 91–92, 100) Bonilla testified that Raichura told him to talk to the lawyer. (Tr.

5 The parties do not dispute that Respondent is a successor pursuant to NLRB v. Burns Intl. Security
Services, 406 U.S. 272 (1972).
JD–08–16
4
92). During the 611(c) examination, Raichura initially maintained that he agreed to provide the
list to him within a day or two, but not at that time. On recall after Bonilla’s testimony and for
Respondent’s case in chief, Raichura stated that he would talk to the lawyer and then provide the
list. (Tr. 35–36, 100) I credit Bonilla’s version regarding the information request as his
explanation of events did not shift. 5
On February 11, two days after the layoff, Bonilla hand-delivered a written information
request to Human Resources Administrator Pagan. The requested information included all the
names of employees who were laid off, the length of the layoff and whether any alternatives to
layoffs were considered. (Tr. 36; GC Exh. 5). A letter dated February 26, 2015, from Executive 10
Vice President Raichura to Bonilla, admittedly identified only 11 employees as laid off for an
unknown period of time. (GC Exh. 6).
The date that Bonilla received the February 26 list is at issue: Executive Vice President
Raichura testified the list was mailed on the same day the letter was dated. However, further 15
examination revealed that he instructed someone to mail it. Bonilla stated he did not receive the
list at the Union office until few days before the parties met on March 30. (Tr. 39–40, 94)
Bonilla testified that he checked the mail at the union hall at least every other day while he was
waiting for the information request. (Tr. 95)
20
On February 18, per letter sent by certified mail, Curtin demanded a grievance meeting to
discuss Bonilla’s layoff. (GC Exh. 11) About the end of February, Curtin had not heard from
Respondent and called Respondent’s attorney, Tony Renning. (Tr. 55–56) Curtin left a voice
mail message that he needed the layoff list, that Respondent did not reply to his February 18
letter regarding the meeting, and that he wanted an immediate response. (Tr. 56) Curtin 25
received no response.
On March 3, Curtin sent to Renning an email requesting an immediate grievance meeting
regarding Bonilla’s layoff. (Tr. 56; GC Exh. 12). On March 4, Renning responded by e-mail,
stating Respondent only received the letter on March 2 and that he would discuss the matter with 30
President Nand and Executive Vice President Raichura on Thursday of that week. (GC Exh. 12).
On Friday, March 6, Renning e-mailed Curtin that he spoke with Respondent, but
Respondent was “perplexed” by the request for a grievance meeting and that Respondent
complied with the handbook’s layoff provisions in laying off Bonilla and the other employees. 35
Renning also advised that Respondent would provide a statement of position to the Union. (GC
Exh. 13).
On March 10, Executive Vice President Raichura responded to Curtin by letter. Raichura
stated that Bonilla was one of the employees laid off pursuant to the handbook provision. He 40
then discussed the difficulties in giving 24 hours of work each week to the employees since they
were hired. He said he did not know how long the layoffs would last. Regarding the request for
a grievance meeting, Raichura again referred to the handbook:
The Employee Handbook does allow for a meeting with [Bonilla]’s immediate 45
supervisor and/or Human Resources. The discussion will result in the sharing of
the same information but, ultimately, little chance for a change in the current
JD–08–16
5
situation. Accordingly, please permit us to focus on growing the business as
opposed to take the time to meet.
(GC Exh. 14).
5
Curtin, responding on March 12, demanded to meet with management no later than
March 18. (Tr. 62; GC Exh. 15). The parties discussed dates on which to meet and agreed to
meet on March 30.
The March 30 meeting was held at Renning’s office and lasted approximately one hour. 10
Curtin and Bonilla represented the Union. Respondent was represented by Raichura and
Renning. Curtin testified that Raichura stated he had met with the individual supervisors at least
one week before the layoff and requested a list of employees to lay off; Raichura said that he
followed the handbook provisions regarding the layoff. (Tr. 65). Raichura testified that the
parties did not discuss the effects of the layoff. (Tr. 43). However, Curtin testified that he 15
demanded “status quo ante” and bargaining over the decision and the effects of the layoff. (Tr.
68; GC Exh. 16). I credit Curtin’s statement that he requested to bargain over effects in addition
to the layoff itself because Curtin was certain and specific about the events.
After the meeting, by an April 1 email to Renning, National Representative Curtin stated 20
that the Union was denied its right to bargain over the layoff decision and the effects of the
layoff for the 12 employees. He demanded reinstatement with backpay for the laid off
employees and bargaining. (GC Exh. 17). Curtin received no response to the April 1 email. (Tr.
70).
25
D. The Union Files Unfair Labor Practice Charges
On April 9, two months after the layoff, Local 1103 filed unfair labor practice charge 18–
CA–149832, which alleged violations of Section 8(a)(5) and (3). The Section 8(a)(5) portion of
the charge alleged that Tramont laid off 12 members of the bargaining unit without bargaining 30
with the Union. (R. Exh. 1). On May 28, the Regional Director issued a dismissal letter. (R.
Exh. 2).
Local 1103 appealed the dismissal to General Counsel’s Office of Appeals. By letter
dated August 21, the Acting Director of the Office of Appeals upheld the Regional Director’s 35
determination that Respondent had followed the established procedures for layoff. The letter
also stated that, although the Union’s appeal raised the failure to bargain over effects of the
layoff, that issue was “the subject of Case 18–CA–155608, which is currently pending in the
Regional Office.” (R. Exh. 3) Case 18–CA–155608 is the charge that forms the basis for this
litigation. 40
45
JD–08–16
6
III. ANALYSIS
The main issue before me is whether Respondent provided the Union with sufficient
notice and an opportunity to bargain about the effects of laying off 12 employees. I will discuss
the unfair labor practice and Respondent’s defenses. 65
A. Respondent Violated Section 8(a)(5) Regarding Effects Bargaining
Respondent was required to notify and bargain with the Union regarding the effects of
layoffs. The notification on the same day as the layoffs was insufficient and presented the Union 10
with a fait accompli.
An employer is required to bargain with its employees’ exclusive collective-bargaining
representative when making a material and substantial change in wages, hours, or any other
term of employment that is a mandatory subject of bargaining under Section 8(a)(5) of the Act. 15
An employer violates Section 8(a)(5) and (1) of the Act by unilaterally changing the mandatory
subjects of bargaining without first providing their bargaining representative with notice and a
meaningful opportunity to bargain about the change. NLRB v. Katz, 369 U.S. 736 (1962).
Mandatory subjects of bargaining include those matters that are “plainly germane to the
‘working environment’” and “not among those ‘managerial decisions, which lie at the core of 20
entrepreneurial control.’” Ford Motor Co. v. NLRB, 441 U.S. 488, 498 (1979). The decision to
lay off employees for economic reasons is clearly a mandatory subject of bargaining. Thus,
absent extraordinary situations involving “compelling economic circumstances,” an employer
must provide notice to and bargain with the union representing its employees concerning both
the layoff decision and the effects of that decision. Lapeer Foundry & Machine, Inc., 289 NLRB25
952, 954–955 (1988), citing numerous authorities, including NLRB v. Advertisers Mfg. Co., 823
F.2d 1086 (7th Cir. 1987). See also: Pan American Grain Co., 351 NLRB 1412 (2007); Tri-Tech
Services, 340 NLRB 894, 895 (2003).
This obligation includes a duty to bargain about the “effects” on employees of a 30
management decision that is not itself subject to the bargaining obligation. See Allison Corp.,
330 NLRB 1363, 1365 (2000); Good Samaritan Hospital, 335 NLRB 901, 902 (2001); see also
Heartland Health Care Center, 359 NLRB No. 155, slip op. at 6 (2013), reaffd. 362 NLRB No.
3 (2015). As the Board has noted, in most such situations, alternatives involving the effects of
the employer’s underlying decision may exist that the employer and union can explore to avoid 35
or reduce the impact of the change without calling into question the decision itself. Good
Samaritan Hospital, 335 NLRB at 903–904; see also Fresno Bee, 339 NLRB 1214 (2003).
“An employer has an obligation to give a union notice and opportunity to bargain about
the effects on unit employees of a managerial decision even if it has no obligation to bargain 40
about the decision itself.” Good Samaritan Hospital, 335 NLRB at 902. Bargaining over the
effects of a layoff must occur in a meaningful time and meaningful manner. Miami Rivet of
Puerto Rico, 318 NLRB 769, 772 (1995). An employer provides sufficient time to bargain

6 Respondent admitted, and I find, that Executive Vice Presidents Raichura and Longenecker are
supervisors and agents within the meaning of Section 2(11) and 2(13) of the Act. Respondent denied that
Pagan was a supervisor or an agent. I do not make any finding regarding Pagan’s status as Respondent
does not deny that it laid off the 12 employees.
JD–08–16
7
effects of a layoff if it notifies the Union when it determined to lay off employees. Allison
Corp., 330 NLRB at 1366. Failure to notify the Union before it implements the layoff does not
provide the Union with an opportunity to bargain over the effects of the layoff. Geiger Ready
Mix, 315 NLRB 1021 (1994) and Chrissy Sportswear, 304 NLRB 988, 989 at fn. 6 (1991) (if
union does not receive pre-implementation notice, it does not have sufficient notice for effects 5
bargaining and is presented with a fait accompli). Same day notice does not give a meaningful
opportunity to bargain. Willamette Tug & Barge Co., 300 NLRB 282, 282–283 (1990).
The Union was presented with a fait accompli when Respondent failed to notify the
Union of its decision to lay off 12 employees. The letter to Bonilla on February 9 was only a 10
layoff notice to him; it said nothing about other laid-off employees. HR Administrator Pagan
would not even divulge the names of the other laid-off employees to Bonilla when he asked.
Even presuming this letter could be construed as notice to the Union, 7 Respondent provided the
letter on the same day as the layoffs and therefore insufficient time to provide a meaningful
opportunity to bargain. Id.15
B. Respondent’s Affirmative Defenses Do Not Cure the Violations
Respondent contends that a contract coverage analysis demonstrates the Union had no
rights for notification or bargaining effects of the layoff. It also contends that the Union waived 20
its rights to bargain effects. The handbook waived the Union’s rights to bargain over the effects
of layoffs. In addition, Respondent contends that it could not have committed any violations
when it provided the Union information and held a bargaining session. Respondent also argues
that the matter is collaterally estopped and/or res judicata because the Union had a prior charge
that was dismissed. None of these defenses are availing. 25
1. The Union did not waive its rights to bargain effects of a layoff
Respondent argues that a contract coverage analysis is warranted instead of the traditional
waiver analysis. The basis of the argument is that the handbook included layoff language, so the 30
Union had no rights to be notified or bargain the layoff or the effects of the layoff. Respondent
cites, inter alia: Southern Nuclear Operating Co. v. NLRB, 524 F.3d 1350 (D.C. Cir. 2008);
Enloe Medical Center v. NLRB, 433 F.3d 834 (D.C. Cir. 2005); Regal Cinemas v. NLRB, 317
F.3d 300 (D.C. Cir. 2003); BP Amoco v. NLRB, 217 F.3d 869 (D.C. Cir. 2000); and NLRB v.
United States Postal Service, 8 F.3d 832 (D.C. Cir. 1993). These cases contend that even non-35
explicit contract language makes any further effects negotiations unnecessary because the parties
already bargained the subject. See, e.g., Postal Service, 8 F.3d at 836.8

7 At hearing, Respondent attempted to adduce testimony about Local Union President Bonilla’s
duties. General Counsel objected and I sustained the objection. Before Respondent laid off employees, it
should have determined whether Bonilla could be responsible for receiving a notification of an
employer’s change in terms and conditions of employment, not at the time an employee was notified of
the layoff and certainly not almost ten months after it failed to notify the Union.
8 Other courts have declined to adopt the “contract coverage” standard. See, e.g., Local Joint
Executive Board of Las Vegas v. NLRB, 540 F.3d 1072, fn. 11 (9th Cir. 2008).
JD–08–16
8
The first step in such an analysis is to determine whether the parties bargained over the
mandatory subject. Bath Marine Draftsmen’s Assn. v. NLRB, 475 F.3d 14, 25–26 (1st Cir.
2007), affg. 345 NLRB 499 (2005). Here, no bargaining took place. The handbook was
implemented without negotiations when Respondent assumed operations. Respondent’s brief
reiterated that, as a Burns successor, it had the right to set the terms and conditions of 5
employment. The parties only held one bargaining session after the implementation of the
handbook and before the layoffs were implemented. The Union never agreed to the layoff
provision. As the parties did not bargain over the layoff section and the handbook is not a
contract, the Union cannot be held to a contract coverage analysis.
10
In addition, the Board reviewed the contract coverage analysis and reasoned that a waiver
analysis is the correct approach. Provena St. Joseph Medical Center, 350 NLRB 808, 812–814
(2007). The Board reaffirmed its commitment to the clear and unmistakable waiver
standard, following a long-standing policy of refusing to acquiesce in decisions of Courts of
Appeals that are contrary to Board law. See Heartland Health Care Center, 359 NLRB No. 155, 15
slip op. at 1 fn. 1 and at 6 (2013), reaffd. 362 NLRB No. 3 (2015). See also Pathmark Stores,
Inc., 342 NLRB 378, fn. 1 (2004). I am bound to “apply established Board precedent which the
Supreme Court has not reversed.” Id.
Pursuant to the waiver analysis, the Union did not waive its rights to bargain the effects 20
of layoff. The Union did not waive its rights to bargain over the effects of layoffs because the
handbook includes the layoff provision. Waiver must be “clear and unmistakable” and will not
be inferred lightly. Metropolitan Edison v. NLRB, 460 U.S. 693, 708 (1983). To meet this
standard, any contract language must be specific, or it must be shown that the matter claimed to
have been waived was fully discussed by the parties and the party alleged to have waived its 25
rights consciously yielded its interest in the matter. Allison Corp.¸ 330 NLRB at 1365. The
Board looks to the exact wording of the contract provision at issue to determine whether waiver
exists. Id. at 1364.
The handbook provisions do not address the effects on employees when a layoff occurs. 30
The handbook provisions only identify how employees are selected for layoff. It is silent about
notification regarding layoffs and the effects of the layoffs. For example, the layoff provisions
did not address what were the effects of the layoff upon the remaining employees. See generally
KGTV, 355 NLRB 1283, 1286–1287 (2010). Nothing reflects that the Union waived its right to
be notified or bargain effects before Respondent laid off employees. 35
2. Events after the layoffs do not relieve Respondent’s obligations to notify and bargain
over the effects of the layoffs
Respondent argues that the Union failed to request bargaining in a timely manner after 40
the Union was notified of the layoffs. The Union did not ask to bargain effects until March 30,
the day of the meeting and approximately six weeks after the layoff. The violation occurred
when Respondent failed to notify the Union before the layoff occurred, and the Union therefore
did not waive its right to request to bargain.
45
Respondent cannot rely upon subsequent events, such as the information request or a
belated meeting about the layoffs, to cure its earlier refusal to bargain over effects. Bluefield
JD–08–16
9
Regional Medical Center, 361 NLRB No. 154, slip op. at 2 (2014). Under these circumstances,
Respondent’s failure to provide advance notice of its layoff creates a situation where the Union
could not have given up its bargaining rights by asking to bargain effects after the layoffs took
place. Chrissy Sportswear, 304 NLRB at 989, fn. 6.
5
3. The General Counsel’s dismissal of an earlier unfair labor practice charge is not res
judicata or collateral estoppel
Respondent contends that the letter from General Counsel’s Office of Appeals precludes
any case regarding effects bargaining. Respondent’s cases generally discuss the doctrines of res 10
judicata and collateral estoppel; none particularly address Board law. Respondent’s arguments
are incorrect: Beyond the differences in the charges, a determination from the Office of Appeals
does not have any preclusive effect.
The two charges have different Section 8(a)(5) allegations: The first charge, which was 15
dismissed, alleged failure to bargain over the layoffs; the current charge, which forms the basis
for this litigation, alleges a failure to bargain the effects of the layoffs. Respondent’s brief sees
no distinction between the two charges. The language Respondent cites from the letter
demonstrates that Appeals dismissed a charge regarding bargaining over the layoffs and selection
of employees; it further reflects that the Union filed a new charge, pending in the Regional 20
Office, regarding the effects of the layoffs. (R. Exh. 3). Appeals made no determination
regarding the validity of charge involving bargaining the layoff’s effects.
Respondent strenuously argues that the determination by Appeals is preclusive by res
judicata and/or collateral estoppel. Respondent widely misses the mark on whether the first 25
charge was fully and fairly litigated before the Office of Appeals. To demonstrate res judicata or
collateral estoppel, a right, question or fact must be in issue and “directly determined by a court
of competent jurisdiction . . . .” Montana v. United States, 440 U.S. 147, 153 (1979), citing
Southern Pacific R. Co. v. United States, 168 U.S. 1 (1897) (emphasis added). The Office of
Appeals cannot be considered a “court”: The Office of Appeals is part of the General Counsel’s 30
determination whether to prosecute a case and is not part of the adjudicatory portion of the
NLRB, which would be the Board and the Division of Judges.
Plainly, dismissal of a prior charge is not an adjudication on the merits. Pepsi-Cola
Bottlers of Atlanta, 267 NLRB 1100, fn. 2 (1983), citing Walter B. Cooke, Inc., 262 NLRB 626 35
(1982).9 Because the first charge was dismissed and not adjudicated on the merits, res judicata
and collateral estoppel do not apply to the present case.
IV. CONCLUSIONS OF LAW
40
1. Respondent Tramont LLC is an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.

9 Respondent also contends that the Union exhausted its administrative remedies by pursuing the
initial charge through the Office of Appeals. It cites §101.6 of the Board’s Rules and Regulations.
However, this section does not state that the dismissal on one matter is final on a different matter, much
less constitutes an adjudication with full and fair litigation.
JD–08–16
10
2. The United Electrical, Radio and Machine Workers of America is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent Tramont LLC has engaged in unfair labor practices in violation of Section 5
8(a)(5) and (1) of the Act by failing to provide prior notice to the Union of its intent to lay off 12
employees and without affording the Union an opportunity to bargain with Tramont LLC about
the effects of the layoff.
4. The unfair labor practices committed by Respondent Tramont LLC affect commerce10
within the meaning of Section 2(6) and (7) of the Act.
V. REMEDY
Having found that Respondent violated Section 8(a)(5) and (1) of the Act, I shall order it 15
to cease and desist from its unlawful conduct and to take certain affirmative actions designed to
effectuate the policies of the Act.
Having found that Respondent unlawfully failed to give notice and refused to bargain
with the Union about the effects of its layoff, I recommend an order of a limited backpay20
requirement designed to both make employees whole for losses, if any, suffered as a result of the
violation and to recreate in some practicable manner a situation in which the parties’ bargaining
position is not entirely devoid of economic consequences for Respondent. Print Fulfillment
Services, LLC, 361 NLRB No. 144, slip op. at 6 (2014). Respondent is required to pay backpay
to its employees in a manner analogous to that required in Transmarine Navigation Corp., 170 25
NLRB 389 (1968) and as clarified by Melody Toyota, 325 NLRB 846 (1998).
Respondent shall pay its laid-off employees backpay at the rate of their normal wages
when last in 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 Respondent bargains to 30
agreement with the Union on those subjects pertaining to the effects of the layoffs; (2) a bona
fide impasse in bargaining; (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 days after receipt
of Respondent’s notice of its desire to bargain with the Union; or (4) the Union’s subsequent
failure to bargain in good faith. In no event shall this sum be less than the employees would 35
have earned for a 2-week period at the rate of their normal wages when last in Respondent’s
employ. Backpay shall be based on earnings that the laid-off employees would normally have
received during the applicable period, less any net interim earnings, and shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical 40
Center, 356 NLRB No. 8 (2010). Respondent shall also file a report with the Social Security
Administration, which allocates backpay to the appropriate calendar quarters. Respondent shall
also compensate affected employees for any adverse tax consequences associated with receiving
one or more lump-sum backpay awards covering periods longer than one year.
45
General Counsel recommends a change in methods for reimbursing employees’ expenses
related to job searches. General Counsel argues that the current methods are insufficient to make
JD–08–16
11
an employee whole for losses incurred while searching for alternative employment. I am bound
by current Board precedent and will not order the requested change.
I shall order that an appropriate notice be posted. General Counsel requests that notices
should also be posted in Spanish. However, the record does not reflect that any of the employees 5
speak Spanish exclusively. I therefore will recommend that the notice may be posted in English
and any other languages that the Regional Director decides are appropriate.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended1010
ORDER
Respondent Tramont LLC, Milwaukee, Wisconsin, its officers, agents, successors and
assigns, shall15
1. Cease and desist from:
(a) Failing to bargain in good faith with United Electrical, Radio and Machine Workers
of America by failing to laying off employees without prior notice of the layoff to the
Union and an opportunity to bargain over the effects of its decision to lay off20
employees;
(b) In any like or related manner interfering with, restraining or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:25
(a) Before implementing any changes in wages, hours, or other terms and conditions of
employment, notify and, upon request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in the following appropriate
unit:
30
All full-time and regular part-time production and maintenance employees,
including inspection employees, employed by the Employer at its Milwaukee,
Wisconsin location, but excluding office clerical employees, professional
employees, guards and supervisors as defined the Act.
35
(b) Upon request, bargain in good faith with the Union concerning the effects of its
decision to lay off employees on February 9, 2015;
(c) Make whole the following employees for any loss of earnings and other benefits
suffered as a result of the unlawful failure to bargain with the Union over the effects
of the layoff, in the manner set forth in the remedy section of this decision:40

10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–08–16
12
Lauro Bonilla Keota Phouthakhio
John Carter John Sims
George Cook, Jr. Marlon Shumpert
Juan Hernandez Isaac Vasquez
Thomas Jaworski James Williams 5
Jesus Martinez Jack Wingo
(d) Compensate any employee who receives backpay under this Order for adverse tax
consequences, if any, of receiving a lump-sum backpay award, and file a report with
the Social Security Administration allocating the backpay award to the appropriate 10
calendar quarters for each employee.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including any 15
electronic copies of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its facility in Milwaukee,
Wisconsin, copies of the attached notice marked “Appendix.” Copies of the notice,
on forms provided by the Regional Director for Region 18, after being signed by 20
Respondent’s authorized representative, shall be posted by Respondent and
maintained for 60 consecutive days in conspicuous places including all places where
notices to employees are customarily posted. The notice will also be posted in
English and any other languages that the Regional Director finds appropriate. In
addition to physical posting of paper notices, the notices shall be distributed 25
electronically, such as by email, posting on an intranet or an internet site, and/or other
electronic means. Reasonable steps shall be taken by Respondent to ensure that the
notices are not altered, defaced or covered by any other material. Respondent shall
also duplicate and mail, at its own expense, a copy of notice to employees who were
employed on February 8, 2015, the day before the layoff, but no longer employed. In 30
the event that, during the pendency of these proceedings, Respondent has gone out of
business or closed the facility involved in these proceedings, Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees
and former employees employed by Respondent at any time since February 8, 2015.
(g) Within 21 days after service by the Region, file with the Regional Director a sworn 35
certification of a responsible official on a form provided by the Region attesting to the
steps Respondent has taken to comply.
Dated, Washington, DC, January 28, 2016
40
________________________________
Sharon Levinson Steckler
Administrative Law Judge45
JD–08–16
APPENDIX
NOTICE TO EMPLOYEES
Post 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 LABOR LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT fail to bargain in good faith with your collective-bargaining representative.
WE WILL NOT fail to notify the Union when we intend to lay off employees.
WE WILL NOT fail to provide the Union with a meaningful opportunity to bargain over the
effects of layoffs.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL bargain in good faith with the Union, which represents the following employees in an
appropriate bargaining unit:
All full-time and regular part-time production and maintenance employees,
including inspection employees, employed by the Employer at its Milwaukee,
Wisconsin location, but excluding office clerical employees, professional
employees, guards and supervisors as defined the Act.
WE WILL, upon request, bargain in good faith with the Union regarding the effects of the
February 9, 2015 layoffs.
WE WILL make whole, according to Transmarine Navigation Corp., 170 NLRB 389 (1968) and
as clarified by Melody Toyota, 325 NLRB 846 (1998), the following employees for their losses:
Lauro Bonilla Keota Phouthakhio
John Carter John Sims
George Cook, Jr. Marlon Shumpert
JD–08–16
Juan Hernandez Isaac Vasquez
Thomas Jaworski James Williams
Jesus Martinez Jack Wingo
WE WILL compensate those employees for the adverse tax consequences, if any of receiving
lump-sum backpay awards, and WE WILL file a report with the Social Security Administration
allocating the backpay awards to the appropriate calendar quarters for each employee.
TRAMONT MANUFACTURING, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Minneapolis Federal Office Building
212 Third Avenue, South Suite 200
Minneapolis, Minnesota 55401
Telephone: (612) 348–1757
Fax: (612) 348–1785
TTY: (800) 877–0996
Hours of Operation: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/18-CA-155608 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, SE., Washington, D.C. 20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED,
DEFACED OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (612) 348-1170.