Tramont Manufacturing, LLC

10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 364 NLRB No. 5 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 1324 (2016), we shall modify the judge’s recommended tax compensation and Social Security reporting remedy. We shall modify 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 Salem Hospital Corp.,, 363 NLRB 515 (2015); Champaign Builders Supply, 361 NLRB 1382 (2014). The General Counsel has excepted to the judge’s refusal to order the Respondent to reimburse affected employees for search-for-work and 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. 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 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. TRAMOUNT MFG., LLC 11 (c) Compensate affected employees for the adverse tax consequences, if any, of receiving a lump-sum back- pay award, and file with the Regional Director for Re- gion 18, within 21 days of the date the amount of back- pay 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- 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 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.” 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 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 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 La- bor Relations 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 (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 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. 3 Although I have included citations to the record to highlight partic- ular 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. 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 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 Tra- mont 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 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. 5 The parties do not dispute that Respondent is a successor pursuant to NLRB v. Burns Intl. Security Services, 406 U.S. 272 (1972). TRAMOUNT MFG., LLC 13 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 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 Ren- ning. (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 email, 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: 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 Ren- ning. 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- 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 back- pay 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 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). 6 Respondent admitted, and I find, that Executive Vice Presidents Raichura and Longenecker are supervisors and agents within the mean- 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. 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 1518, 1523 (2013), reaffd. 362 NLRB 5 (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 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 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 re- TRAMOUNT MFG., LLC 15 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 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 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). are contrary to Board law. See Heartland Health Care Center, 359 NLRB 1518, 1518, fn. 1 and at 6 (2013), reaffd. 362 NLRB 5 (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 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 1389, 1390 (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. 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- 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 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- 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. 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 1243, 1248 (2014). Respondent is required to pay backpay to its employees in a manner analogous to that required in Transma- rine 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 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. [Recommended Order omitted from publication.]