L.W.D., Inc.

L.W.D., INC. 342 NLRB No. 97 965 L.W.D., Inc., L.W.D. Sanitary Landfill, Inc., L.W.D. Trucking, Inc., L.W.D. Field Services, Inc., and Robert Terry, Inc., a Single Integrated Enter- prise and Oil, Chemical and Atomic Workers International Union, AFL–CIO.1 Cases 26–CA– 18390, 26–CA–18420, 26–CA–18538, 26–CA– 18573, and 26–CA–18526 August 31, 2004 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG On August 27, 2001,2 the National Labor Relations Board issued a Decision and Order in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act. Thereafter, the Respondent petitioned the United States Court of Appeals for the Sixth Circuit for review of the Board’s order and the Board filed a cross- application for enforcement. On September 19, 2003, the court issued its decision granting in part and denying in part the Board’s cross-application for enforcement and remanding part of the case to the Board for further con- sideration.3 The court affirmed the finding that the Re- spondent violated Section 8(a)(3) of the Act by discharg- ing employee William Jeffrey Walls, but reversed the Board and found that the Respondent did not violate Sec- tion 8(a)(5) by failing to bargain about the use of a forced ranking system to implement layoffs on Decem- ber 12, 1997, and on March 16, 1998. Additionally, the court remanded to the Board the issue of whether the Respondent violated Section 8(a)(5) by unilaterally plac- ing workers it recalled between December 17, 1997, and March 6, 1998, to positions in the general labor pool without notifying the Union and bargaining over this subject. Regarding its remand, the court noted the Board’s finding that no bargaining impasse could exist in light of the Respondent’s preexisting unfair labor practices relat- ing to forced rankings. The court reasoned that since it had reversed those underlying unfair labor practice find- ings, the Board’s rationale for finding no impasse was now invalid. Therefore, the court, citing Intermountain Rural Electric Association. v. NLRB, 984 F.2d 1562, 1569 (10th Cir. 1993), remanded the case to the Board 1 The Union is now called Paper Allied Chemical Energy Industrial Union. 2 335 NLRB 241. Members Schaumber and Meisburg note that they were not serving on the Board when that decision issued. 3 Nos. 01-2273 & 01-2546 (unpublished). On November 12, 2003, the court entered a judgment reflecting its decision. for analysis under the five-part impasse test set forth therein, which includes: “(a) the parties’ bargaining his- tory, (b) the parties’ good faith in negotiations, (c) the length of the negotiations, (d) the importance of the is- sues over which there is disagreement, and (e) the con- temporaneous understanding of the parties as to the state of negotiations on the crucial date.” On March 11, 2004, the Board informed the parties that it had accepted the court’s remand and requested that they submit statements of position. Both the General Counsel and the Respondent filed position statements. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the court’s limited remand in light of the record and the parties’ statements of posi- tion. It is well established that the existence of a valid impasse is a defense to the charge of a unilateral change that must be proved by the party asserting the right to act unilaterally.4 The Respondent in this case does not even contend in its statement of position that the parties bar- gained to impasse. Indeed, there is no evidence in the record that the parties conducted any bargaining over the Respondent’s recall of employees to the general labor pool. Thus, absent bargaining, there can be no valid im- passe under the five-part test of Intermountain Rural Electric Association, supra.5 Because it is now bankrupt, the Respondent asserts that, under Chapter 11 of the Bankruptcy Code, the Board is stayed from initiating further action against the debtor-in-possession to obtain monetary relief from the bankruptcy proceedings. Contrary to Respondent’s ar- gument, Board proceedings fall within the exception to the automatic stay provision of the Bankruptcy Code for government units, although collection of any money owed requires separate application to the court.6 Fur- 4 North Star Steel Co., 305 NLRB 45 (1991), enfd. 974 F.2d 68 (8th Cir. 1992). 5 Applying the impasse standard as the Sixth Circuit directed in its narrow remand order, Members Schaumber and Meisburg conclude that the parties could not have bargained to impasse on Respondent’s recall of laid-off employees because no bargaining over that subject actually occurred. See Intermountain Rural Electric Association, supra (court’s five-part test requires good-faith bargaining). Members Schaumber and Meisburg note that the Board did not previously ad- dress various potentially meritorious defenses raised by Respondent, including that the Union waived its right to bargain over the recalls by failing to request timely bargaining, and that Respondent had a past practice of recalling laid-off employees to the general labor pool, which privileged it to continue that practice as part of maintaining the status quo during negotiations. Respondent, however, is no longer repre- sented by counsel apart from the bankruptcy proceedings and does not reiterate those arguments here. They appear, in any event, to be beyond the scope of the remand order. 6 R.T. Jones Lumber Co., 313 NLRB 726, 727–728 (1994). See also, NLRB v. Horizons Hotel, 49 F.3d 795, 803–804 (1st Cir. 1995), enfg. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 966 thermore, as the General Counsel points out, the Board in this case did not provide any monetary remedy for the Respondent’s failure to bargain over the method it used for recalling unit employees from layoff. Rather, the Board ordered that the Respondent bargain in good faith with the Union on this subject. For these reasons, we reaffirm our finding that the Re- spondent violated Section 8(a)(5) and (1) by refusing to bargain with the Union regarding its method of recalling the unit employees from layoff. We shall order that the Respondent, on request, bargain with the Union concern- ing the decision to recall laid-off employees to general labor pool positions. SUPPLEMENTAL ORDER The National Labor Relations Board reaffirms its prior Order in relevant part and orders that the Respondent, L.W.D., Inc., L.W.D. Sanitary Landfill, Inc., L.W.D. Trucking, Inc., L.W.D. Field Services, Inc., and Robert Terry, Inc., as a single integrated enterprise, Calvert City, Kentucky, its officers, agents, successor and assigns, shall 1. Cease and desist from (a) Recalling laid-off employees to positions in the general labor pool between December 17, 1997, and March 6, 1998, without notifying and bargaining with the Union in accordance with Respondent’s duty to bargain in good faith under the Act. (b) 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) On request, bargain with the Union concerning the decision to recall laid-off employees to positions in the general labor pool between December 17, 1997, and March 6, 1998. (b) Within 14 days after service by Region 19, post at its Calvert City, Kentucky facility copies of the attached notice marked “Appendix.”7 Copies of the notice, on forms provided by Regional Director for Region 26, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to 312 NLRB 1212 (1993); In re Carib-Inn of San Juan Corp., 905 F.2d 561, 562 (1st Cir. 1990). 7 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.” employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time be- tween December 17, 1997, and the date that it may have ceased to exist because of bankruptcy proceedings. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we 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 any 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 recall employees to positions in the gen- eral labor pool between December 17, 1997, and March 6, 1998, without notifying and bargaining with the Union in accordance with the duty to bargain in good faith un- der the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL, on request, bargain with the Union concern- ing our decision to recall laid-off employees to positions in the general labor pool between December 17, 1997, and March 6, 1998. L.W.D., INC., L.W.D. SANITARY LANDFILL. INC., L.W.D. TRUCKING, INC., L.W.D. FIELD SERVICES, INC., AND ROBERT TERRY, INC., A SINGLE INTEGRATED ENTERPRISE