EUGENE IOVINE, INC.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 356 NLRB No. 134 1056 Eugene Iovine, Inc. and Local Union No. 3, Interna- tional Brotherhood of Electrical Workers, AFL– CIO. Cases 29–CA–21052, 29–CA–21086, 29– CA–21840–3, 29–CA–21879–1, 29–CA–21879–2, and 29–CA–22030 April 7, 2011 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND PEARCE On September 30, 2008, the two sitting members of the Board issued a Supplemental Decision and Order in this proceeding, which is reported at 353 NLRB 400.1 Thereafter, the General Counsel filed a petition for en- forcement in the United States Court of Appeals for the Second Circuit, which was granted by the court on March 30, 2010. NLRB v. Eugene Iovine, Inc., 371 Fed.Appx. 167 (2d Cir. 2010). On June 17, 2010, the United States Supreme Court issued its decision in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, holding that under Section 3(b) of the Act, in order to exercise the delegated authority of the Board, a delegee group of at least three members must be maintained. On October 12, 2010, the Supreme Court granted cer- tiorari in the instant case, vacated the judgment of the United States Court of Appeals for the Second Circuit, and remanded the proceeding to that court for further consideration in light of New Process Steel, supra. Eu- gene Iovine, Inc. v. NLRB, 131 S.Ct. 458 (2010). There- after, the Court of Appeals for the Second Circuit re- manded this case to the Board for further proceedings consistent with the Supreme Court’s decision. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.2 The Board has considered the judge’s decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings, and conclu- sions, to modify his remedy, and to adopt the recom- mended Order to the extent and for the reasons stated in 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the powers of the National Labor Relations Board in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Thereafter, pursuant to this delegation, the two sitting members issued decisions and orders in unfair labor practice and representation cases. 2 Consistent with the Board's general practice in cases remanded from the courts of appeal, and for reasons of administrative economy, the panel includes the remaining member who participated in the origi- nal decision. Furthermore, under the Board’s standard procedures applicable to all cases assigned to a panel, the Board Member not as- signed to the panel had the opportunity to participate in the adjudication of this case at any time up to the issuance of this decision. the decision reported at 353 NLRB 400 (2008),3 which is incorporated herein by reference, except as modified below.4 AMENDED REMEDY The Respondent, having unlawfully laid off bargaining unit employees for economic reasons without providing the Union timely notice and a opportunity to bargain about the decision to lay off employees and its effects, must offer those employees and other similarly situated employees reinstatement and make them whole for any loss of earnings and other benefits they may have suf- fered as a result of the Respondent’s unlawful conduct, computed on a quarterly basis from the date of the layoffs to the date of a proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Wool- worth Co., 90 NLRB 289 (1950), plus daily compound interest as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified in 353 NLRB 400 and as further modified be- low, and orders that the Respondent, Eugene Iovine, Inc., Farmingdale, New York, its officers, agents, successors, and assigns, shall take the action set forth in the recom- mended Order as modified. Substitute the following for paragraph 2(e). “(e) Within 14 days after service by the Region, post at its Farmingdale, New York facility, copies of the at- tached notice marked “Appendix.”18 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 29, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous 3 In affirming the decision, we make the following modification of the rationale set forth in the above-referenced decision. While we affirm the finding that the Respondent failed to establish that it had a past practice of unilaterally laying off employees either prior to or after the Union’s 1993 certification, we further find that even had the Re- spondent established that such a past practice existed prior to 1993, when another union represented its employees, this would not privilege its action here. Thus, we agree with the judge that the Respondent may not establish a past practice defense privileging its unilateral changes based on the acquiescence of a union that previously represented the unit employees, where—as here—the Union has not acquiesced to such unilateral changes. See, e.g., Eugene Iovine, Inc., 328 NLRB 294, 297 (1999), enfd. 1 Fed.Appx. 8 (2d Cir. 2001). The judge’s discussion and resolution of this issue are fully consistent with Board precedent. 4 In accordance with our decision in Kentucky River Medical Center, 356 NLRB 6 (2010), we modify the judge’s remedy by requiring that backpay and other monetary awards shall be paid with interest com- pounded on a daily basis. Also, we shall modify the judge's recom- mended Order to provide for the posting of the notice in accord with J. Picini Flooring, 356 NLRB 11 (2010). EUGENE IOVINE, INC. 1057 places including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. 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 Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since December 6, 1996.”