Tramont Manufacturing, LLC

National Labor Relations Board - Board Decisions

May 23, 2016

364 NLRB No. 5 (N.L.R.B. 2016)

364 NLRB No. 5
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.
Tramont Manufacturing, LLC and United Electrical,
Radio and Machine Workers of America, Local
1103. Case 18–CA–155608
May 23, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On January 28, 2016, Administrative Law Judge Sha-
ron Levinson Steckler issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed cross-exceptions, a supporting
brief, and an answering 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, to
amend the remedy, and to adopt the recommended Order
as modified and set forth in full below. 2

1 Although the Respondent excepts to the judge's finding that it
failed to provide the Union with timely notice about its decision to lay
off 12 unit employees, it has presented no argument in support of this
exception. Accordingly, the Respondent’s exception may be disregard-
ed pursuant to Sec. 102.46(b)(2) of the Board's Rules and Regulations,
and we find it appropriate to do so here. See Holsum de Puerto Rico,
Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir.
2006).
The judge found that the Union did not waive its right to bargain
over the effects of the layoff. No party has argued that it was improper
for the judge to apply the Board’s “clear and unmistakable” waiver
analysis where a successor respondent was relying on initial terms and
conditions of employment that it unilaterally implemented to prove
contractual waiver. Therefore, we do not decide the issue. Assuming,
without deciding, the waiver analysis is applicable in these circum-
stances, we agree that the Union has not waived effects bargaining, for
the reasons stated by the judge.
2 In accordance with our decision in Advoserv of New Jersey, Inc.,
363 NLRB No. 143 (2016), we shall modify the judge’s recommended
tax compensation and Social Security reporting remedy. We shall mod-
ify the judge’s recommended Order and substitute a new notice to
reflect this remedial change and to conform to the Board’s standard
remedial language.
We also amend the judge’s remedy to provide that backpay shall be
computed in accordance with Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), rather than with F. W.
Woolworth Co., 90 NLRB 289 (1950). The Ogle Protection formula
applies in cases such as this one that involve the limited make-whole
remedy established in Transmarine Navigation Corp., 170 NLRB 389
(1968). See Memorial Hospital of Salem County, 363 NLRB No. 56
(2015); Champaign Builders Supply, 361 NLRB No. 153 (2014).
The General Counsel has excepted to the judge’s refusal to order the
Respondent to reimburse affected employees for search-for-work and
ORDER
The National Labor Relations Board orders that Re-
spondent, Tramont Manufacturing, LLC, Milwaukee,
Wisconsin, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing to timely notify the Union and afford it an
opportunity to bargain over the effects of its decision to
lay off 12 unit employees.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit concerning the ef-
fects of its decision to lay off 12 unit employees and, if
an understanding is reached, embody the understanding
in a signed agreement:
All full-time and regular part-time production, mainte-
nance, and inspection employees at [Respondent's] fa-
cility located at 3701 N. Humboldt Boulevard, Mil-
waukee, Wisconsin, but excluding office clerical and
technical employees, guards, professional employees
and supervisors as defined by the National Labor Rela-
tions Act.
(b) Pay its former employees in the unit described
above their normal wages when in the Respondent’s em-
ploy from 5 days after the date of this Decision and Or-
der until the occurrence of the earliest of the following
conditions: (1) the Respondent bargains to agreement
with the Union about the effects of the decision to lay off
12 unit employees; (2) the parties reach a bona fide im-
passe in bargaining; (3) the Union fails to request bar-
gaining within 5 days after the receipt of this Decision
and Order, 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; but 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

work-related expenses regardless of whether they received interim
earnings in excess of these expenses, or at all, during any given quarter,
or during the overall backpay period. We deny the exception. As the
judge noted, awarding such expenses would require a change in Board
law, and we are not prepared at this time to deviate from our current
remedial practice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
faith, whichever occurs sooner; provided, however, that
in no event shall this sum be less than the affected em-
ployees would have earned for a 2-week period at the
rate of their normal wages, with interest, as set forth in
the remedy section of the judge’s decision as modified
herein.
(c) Compensate affected employees for the adverse
tax consequences, if any, of receiving a lump-sum
backpay award, and file with the Regional Director for
Region 18, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar year for each employee.
(d) 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.
(e) Within 14 days after service by the Region, post at
its facility in Milwaukee, Wisconsin, copies of the at-
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region
18, 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, the notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respond-
ent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed
by the Respondent at any time since February 9, 2015.
Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-

3 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.”
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. May 23, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, Member
(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 vio-
lated 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 fail to timely notify the Union and afford
it an opportunity to bargain over the effects of our deci-
sion to lay off 12 unit employees.
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, on request, bargain with the Union as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit concerning the
effects of our decision to lay off 12 unit employees and
WE WILL reduce to writing and sign any agreement
reached as a result of such bargaining:
All full-time and regular part-time production, mainte-
nance, and inspection employees at [Respondent's] fa-
cility located at 3701 N. Humboldt Boulevard, Mil-
waukee, Wisconsin, but excluding office clerical and
TRAMONT MFG., LLC 3
technical employees, guards, professional employees
and supervisors as defined by the National Labor Rela-
tions Act.
WE WILL pay former unit employees their normal
wages for a period of time set forth in the Decision and
Order of the National Labor Relations Board, with inter-
est.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector for Region 18, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar year for each employee.
TRAMONT MANUFACTURING, LLC
The Board’s decision can be found at
http://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 Re-
lations Board, 1015 Half Street SE Washington, D.C.
20570, or by calling (202) 273-1940.
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,
2015,2 and the General Counsel issued the complaint on Sep-
tember 30, 2015. Respondent Tramont Manufacturing, LLC

1 At hearing, General Counsel moved to amend the complaint to re-
flect that the United Electrical, Radio and Machine Workers of Ameri-
ca (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.
(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 lay-
ing off 12 employees and failed to give the Union an opportuni-
ty 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 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
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 goods valued in
excess of $50,000 directly to points outside the State of Wis-
consin. 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 organiza-
tions within the meaning of Section 2(5) of the Act.
II. FACTS4
A. Organization of Respondent and Implementation of the
Handbook as Terms and Conditions of Employment
Respondent Tramont Manufacturing, LLC (Respondent)
manufactures diesel engines and parts. The company is run by
President Nand. The Company has two executive vice presi-
dents, Vijay Raichura and Frank Langenecker. Raichura is
responsible for accounting, finance, purchasing and human
resources.
Respondent made an asset purchase from the predecessor
company, Tramont Corporation, in May 2014. The Union had

3 Although I have included citations to the record to highlight par-
ticular 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 determina-
tions within this section. The credibility analysis may rely upon a
variety of factors, including, but not limited to, the context of the wit-
ness 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). Credibil-
ity findings regarding any witness are not likely to be an all-or-nothing
determination and I may believe that a witness testified credibly regard-
ing one fact but not on another. Daikichi Sushi, 335 NLRB at 622.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
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 bar-
gain in good faith with the International Union. Respondent,
however, would not agree to extend the collective-bargaining
agreement. (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 by
a handbook and distributed handbooks to the employees. In
2014, the Union and Respondent met for one bargaining ses-
sion 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 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 Laid Off 12 Employees on February 9, 2015
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.)
On February 9, Human Resources Administrator Stephanie
Pagan distributed layoff notices to 12 employees. The notices
advised the employees that the layoff was effective immediate-
ly. 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.)
C. The Union Makes an Information Request and Meets
with Respondent
One of the laid-off employees was Lauro Bonilla, the presi-
dent of Local 1103. Bonilla worked for the predecessor for 21
years and for Respondent since its takeover in May 2014. He
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.)
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 Ad-
ministrator 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 Bonilla whether he was
there for personal business or union business; Bonilla testified

5 The parties do not dispute that Respondent is a successor pursuant
to NLRB v. Burns Intl. Security Services, 406 U.S. 272 (1972).
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. 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 Bonil-
la’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 in-
formation request as his explanation of events did not shift.
On February 11, 2 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 Vice President Raichura to Bonilla, admittedly iden-
tified 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 exami-
nation 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.)
On February 18, per letter sent by certified mail, Curtin de-
manded 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 Feb-
ruary 18 letter regarding the meeting, and that he wanted an
immediate response. (Tr. 56.) Curtin 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 President Nand and Executive
Vice President Raichura on Thursday of that week. (GC Exh.
12.) On Friday, March 6, Renning emailed Curtin that he
spoke with Respondent, but Respondent was “perplexed” by
the request for a grievance meeting and that Respondent com-
plied with the handbook’s layoff provisions in laying off Bonil-
la and the other employees. Renning also advised that Re-
spondent 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
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 re-
quest for a grievance meeting, Raichura again referred to the
handbook:
TRAMONT MFG., LLC 5
The Employee Handbook does allow for a meeting with
[Bonilla]’s immediate supervisor and/or Human Resources.
The discussion will result in the sharing of the same infor-
mation but, ultimately, little chance for a change in the current
situation. Accordingly, please permit us to focus on growing
the business as opposed to take the time to meet.
(GC Exh. 14.)
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 1 hour. 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 1 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 ef-
fects of the layoff. (Tr. 43.) However, Curtin testified that he
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 spe-
cific about the events.
After the meeting, by an April 1 email to Renning, National
Representative Curtin stated 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.)
D. The Union Files Unfair Labor Practice Charges
On April 9, 2 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 8(a)(5) portion of the charge
alleged that Tramont laid off 12 members of the bargaining unit
without bargaining 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 Of-
fice of Appeals. By letter dated August 21, the Acting Director
of the Office of Appeals upheld the Regional Director’s deter-
mination that Respondent had followed the established proce-
dures for layoff. The letter also stated that although the Un-
ion’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.
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. 6

6 Respondent admitted, and I find, that Executive Vice Presidents
Raichura and Longenecker are supervisors and agents within the mean-
A. Respondent Violated Section 8(a)(5) Regarding
Effects Bargaining
Respondent was required to notify and bargain with the Un-
ion regarding the effects of layoffs. The notification on the
same day as the layoffs was insufficient and presented the Un-
ion with a fait accompli.
An employer is required to bargain with its employees’ ex-
clusive 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. An employer violates Section
8(a)(5) and (1) of the Act by unilaterally changing the mandato-
ry subjects of bargaining without first providing their bargain-
ing 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
entrepreneurial control.’” Ford Motor Co. v. NLRB, 441 U.S.
488, 498 (1979). The decision to lay off employees for eco-
nomic 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 concern-
ing both the layoff decision and the effects of that decision.
Lapeer Foundry & Machine, Inc., 289 NLRB 952, 954–955
(1988), citing numerous authorities, including NLRB v. Adver-
tisers Mfg. Co., 823 F.2d 1086 (7th Cir. 1987). See also: Pan
American Grain Co., 351 NLRB 1412 (2007); Tri-Tech Ser-
vices, 340 NLRB 894, 895 (2003).
This obligation includes a duty to bargain about the “effects”
on employees of a management decision that is not itself sub-
ject 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 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
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 employ-
er provides sufficient time to bargain 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

ing 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 regard-
ing Pagan’s status as Respondent does not deny that it laid off the 12
employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
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 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 Re-
spondent failed to notify the Union of its decision to lay off 12
employees. The letter to Bonilla on February 9 was only a
layoff notice to him; it said nothing about other laid-off em-
ployees. 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 mean-
ingful opportunity to bargain. Id.
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 bar-
gaining effects of the layoff. It also contends that the Union
waived its rights to bargain effects. The handbook waived the
Union’s rights to bargain over the effects of layoffs. In addi-
tion, 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.
1. The Union did not waive its rights to bargain effects of
a layoff
Respondent argues that a contract coverage analysis is war-
ranted instead of the traditional waiver analysis. The basis of
the argument is that the handbook included layoff language, so
the 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. Postal Service, 8 F.3d 832 (D.C. Cir. 1993). These cases
contend that even nonexplicit 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 Lo-
cal 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 re-
ceiving 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” stand-
ard. See, e.g., Local Joint Executive Board of Las Vegas v. NLRB, 540
F.3d 1072, fn. 11 (9th Cir. 2008).
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 reit-
erated that, as a Burns successor, it had the right to set the terms
and conditions of employment. The parties only held one bar-
gaining 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.
In addition, the Board reviewed the contract coverage analy-
sis 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, 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 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. Metropoli-
tan 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
rights consciously yielded its interest in the matter. Allison
Corp.¸ 330 NLRB at 1365. The Board looks to the exact word-
ing of the contract provision at issue to determine whether
waiver exists. Id. at 1364.
The handbook provisions do not address the effects on em-
ployees when a layoff occurs. 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 employ-
ees. 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.
2. Events after the layoffs do not relieve Respondent’s obliga-
tions to notify and bargain over the effects of the layoffs
Respondent argues that the Union failed to request bargain-
ing in a timely manner after 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 6 weeks after the
layoff. The violation occurred when Respondent failed to noti-
fy the Union before the layoff occurred, and the Union there-
fore did not waive its right to request to bargain.
Respondent cannot rely upon subsequent events, such as the
TRAMONT MFG., LLC 7
information request or a belated meeting about the layoffs, to
cure its earlier refusal to bargain over effects. Bluefield Re-
gional 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 ask-
ing to bargain effects after the layoffs took place. Chrissy
Sportswear, 304 NLRB at 989 fn. 6.
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 bargain-
ing. Respondent’s cases generally discuss the doctrines of res
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 8(a)(5) allegations: The first
charge, which was dismissed, alleged failure to bargain over the
layoffs; the current charge, which forms the basis for this litiga-
tion, alleges a failure to bargain the effects of the layoffs. Re-
spondent’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 Office, re-
garding 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 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 determination whether to pros-
ecute 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 (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
1. Respondent Tramont LLC is an employer engaged in

9 Respondent also contends that the Union exhausted its administra-
tive remedies by pursuing the initial charge through the Office of Ap-
peals. 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.
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
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 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 oppor-
tunity to bargain with Tramont LLC about the effects of the
layoff.
4. The unfair labor practices committed by Respondent
Tramont LLC affect commerce 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 to cease and desist from its unlaw-
ful conduct and to take certain affirmative actions designed to
effectuate the policies of the Act.
Having found that Respondent unlawfully failed to give no-
tice and refused to bargain with the Union about the effects of
its layoff, I recommend an order of a limited backpay require-
ment 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 re-
quired in Transmarine Navigation Corp., 170 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 oc-
currence of the earliest of the following conditions: (1) the date
Respondent bargains to 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 bar-
gaining 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
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 pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). Respondent shall also file a report with the
Social Security Administration, which allocates backpay to the
appropriate calendar quarters. Respondent shall also compen-
sate affected employees for any adverse tax consequences asso-
ciated with receiving one or more lump-sum backpay awards
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
covering periods longer than 1 year.
General Counsel recommends a change in methods for reim-
bursing employees’ expenses related to job searches. General
Counsel argues that the current methods are insufficient to
make an employee whole for losses incurred while searching
for alternative employment. I am bound by current Board prec-
edent 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
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 recommended10
ORDER
Respondent Tramont LLC, Milwaukee, Wisconsin, its offic-
ers, agents, successors and assigns, shall
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
off employees;
(b) 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) Before implementing any changes in wages, hours, or
other terms and conditions of employment, notify and, on re-
quest, bargain with the Union as the exclusive collective-
bargaining representative of the employees in the following
appropriate unit:
All full-time and regular part-time production and mainte-
nance 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.
(b) Upon request, bargain in good faith with the Union con-
cerning the effects of its decision to lay off employees on Feb-
ruary 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:
Lauro Bonilla Keota Phouthakhio
John Carter John Sims
George Cook, Jr. Marlon Shumpert
Juan Hernandez Isaac Vasquez

10 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.
Thomas Jaworski James Williams
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 calendar quarters for each employee.
(e) 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 any 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 fa-
cility 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
Respondent’s authorized representative, shall be posted by
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. The notice will also be posted in Eng-
lish and any other languages that the Regional Director finds
appropriate. In addition to physical posting of paper notices,
the notices shall be distributed 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 en-
sure 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 em-
ployed on February 8, 2015, the day before the layoff, but no
longer employed. In 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 no-
tice 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 certification of a responsible official
on a form provided by the Region attesting to the steps Re-
spondent has taken to comply.
Dated, Washington, DC, January 28, 2016
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 No-
tice.
FEDERAL LABOR LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your be-
half
TRAMONT MFG., LLC 9
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT fail to bargain in good faith with your collec-
tive-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, re-
strain, 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 repre-
sents the following employees in an appropriate bargaining
unit:
All full-time and regular part-time production and mainte-
nance 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 Toyo-
ta, 325 NLRB 846 (1998), the following employees for their
losses:
Lauro Bonilla Keota Phouthakhio
John Carter John Sims
George Cook, Jr. Marlon Shumpert
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 Administra-
tion allocating the backpay awards to the appropriate calendar
quarters for each employee.
TRAMONT MANUFA CTURING, LLC
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.