East Coast Steel, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1995

317 N.L.R.B. 842 (N.L.R.B. 1995)

842
317 NLRB No. 122
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent admits in its exceptions that its failure to bargain
with the Union over the decision to lay off employees and its effects
violated the Act, but argues that the appropriate remedy for its bar-
gaining violations is the limited backpay remedy set forth in
Transmarine Navigation Corp., 170 NLRB 389 (1968) (backpay
commences 5 days after the date of the Board’s Decision and Order
and continues until the occurrence of one of several subsequent
events). We find no merit to this contention inasmuch as temporary
business conditions not of the Respondent’s making (ongoing mate-
rial shortages) were the primary reason for the layoffs, and the lay-
offs were not primarily an outgrowth or effect of a permanent man-
agement decision that was entrepreneurial in character. In these cir-
cumstances, a traditional make-whole remedy is appropriate. Lapeer
Foundry & Machine, 289 NLRB 952, 954–955 (1988). Compare
Fast Food Merchandisers, 291 NLRB 897, 902 (1988). See also
Porta-King Building Systems, 310 NLRB 539 (1993), enfd. 14 F.3d
258 (8th Cir. 1994) (full backpay appropriate remedy for failing to
bargain over layoffs notwithstanding employer’s belated offer to bar-
gain subsequent to the layoffs).
Member Stephens notes that concerns he expressed in Plastonics,
Inc., 312 NLRB 1045, 1046 (1993), about a full backpay remedy in
circumstances in which layoffs could not possibly have been averted
even if the union had been given adequate notice and an opportunity
to bargain, are not warranted here. Unlike the instant case, the em-
ployer in Plastonics, supra, had no work for any of its bargaining
unit production employees, laid off all of them, and no concession-
ary alternatives were available to the union. 312 NLRB at 1047,
1049.
2 We grant the General Counsel’s motion to correct the backpay
period for employee Andrew Holbrook since the record shows, con-
sistent with the judge’s factual findings at sec. III,B of his decision,
that Holbrook was recalled on May 23, 1994. We have modified the
judge’s recommended order and have substituted a new notice to re-
flect this correction.
East Coast Steel, Inc. and Shopmen’s Local Union
No. 807, of the International Association of
Bridge, Structural and Ornamental Iron Work-
ers, AFL–CIO. Case 1–CA–31689
June 13, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On February 28, 1995, Administrative Law Judge
Wallace H. Nations issued the attached decision. The
Respondent filed exceptions, and the General Counsel
filed a brief in support of the judge’s decision.
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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, East
Coast Steel, Inc., South Portland, Maine, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 2(b) of the
recommended Order.
‘‘(b) Make whole, with interest, those unit employ-
ees who were laid off in the period March 3 to May
23, 1994, for any loss of pay or other employment
benefits suffered as a result of this unlawful unilateral
action.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT, without first giving notice and af-
fording Shopmen’s Local Union No. 807, International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL–CIO the opportunity to bargain in good
faith over our decision and its effects, lay off our em-
ployees in the following unit:
All full-time and regular part-time production and
maintenance employees employed by the Em-
ployer at its fabrication shop located at One
Walker Avenue, South Portland, Maine, including
welders, fabricators, laborers, crane operators,
painters, fitter/layout employees, shipping/-receiv-
ing employees, and truck drivers, but excluding
all other employees such as office clerical em-
ployees, professional employees, estimators,
guards, leadmen and supervisors as defined in the
Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you in Section 7 of the Act.
WE WILL give notice to the Union before we imple-
ment any future economic layoff and give the Union
the opportunity to bargain over that decision and its ef-
fects, unless we and the Union agree to a different pro-
cedure in a written collective-bargaining agreement.
WE WILL make whole, with interest, those employ-
ees whom we unilaterally laid off during the period
March 3 to May 23, 1994, for any loss of pay or other
843EAST COAST STEEL, INC.
1 All dates are in 1994 unless otherwise noted.
employment benefits suffered as a result of our unlaw-
ful conduct.
EAST COAST STEEL, INC.
Gerald Wolper, Esq., for the General Counsel.
Alan J. Levinson, Esq., of Portland, Maine, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge.
Shopmen’s Local Union No. 807, of the International Asso-
ciation of Bridge, Structural and Ornamental Iron Workers,
AFL–CIO (the Union) filed an unfair labor practice charge
on May 12, 1994, against East Coast Steel, Inc. (Respondent
or East Coast Steel). Based upon this charge, the Regional
Director for Region 1 issued a complaint and notice of hear-
ing on June 24, 1994, alleging that Respondent has engaged
in conduct in violation of Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act (the Act). Respondent filed timely
answer, wherein it admits, inter alia, the jurisdiction allega-
tions of the complaint and the labor organization status of the
Union.
Hearing was held in this matter in Portland, Maine, on De-
cember 21, 1994.1 Briefs were received from the parties on
or about February 6, 1995. Based upon the entire record, in-
cluding my observation of the demeanor of the witnesses, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office and place of
business in South Portland, Maine, engages in the fabrication
of steel products. As noted, Respondent has admitted the ju-
risdictional allegations of the complaint and accordingly, I
find that at all material times it has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE INVOLVED LABOR ORGANIZATION
It is admitted, and I find that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues for Determination
The complaint alleges, and Respondent admits, that on
March 2, the Union was certified as the exclusive collective-
bargaining representative of Respondent’s employees in the
following appropriate unit:
All full-time and regular part-time production and
maintenance employees employed by the Employer at
its fabrication shop located at One Walker Avenue,
South Portland, Maine, including welders, fabricators,
laborers, crane operators, painters, fitter/layout employ-
ees, shipping/receiving employees, and truck drivers,
but excluding all other employees such as office cleri-
cal employees, professional employees, estimators,
guards, leadmen and supervisors as defined in the Act.
The certification followed an election held October 15,
1993, which the Union won 22 to 16. On November 5, 1993,
the Union sent a letter to Respondent that, inter alia, stated:
‘‘We would like to remind you that the conditions of em-
ployment in effect on October 15, 1993, should not be al-
tered or changed in any manner, unless specifically approved
by this local union.’’ The complaint further alleges and Re-
spondent admits that on March 3, 4, and 30, it laid off em-
ployees employed within the bargaining unit. In its answer
the Respondent denies that the layoff of such employees is
a mandatory subject of bargaining and that it laid off the in-
volved employees without prior notice to the Union giving
it an opportunity to bargain over the decision to lay off and
the effects thereof. The Respondent also raised several af-
firmative defenses. These were (1) the complaint does not
state a cause of action upon which relief can be granted; (2)
Respondent’s actions were the result of legitimate economic
considerations without any illegal motivation; (3) the Union
was given notice and an opportunity to bargain about the lay-
offs; (4) the Union, at bargaining sessions following the lay-
offs, waived its right to bargain about the layoffs; (5) at the
time of the layoffs, the Union refused to negotiate any in-
terim agreement allowing the Respondent to continue the sta-
tus quo until the parties reached agreement on a collective-
bargaining agreement; and (6) any remedy for a violation of
the Act under the circumstances of this case should not in-
clude back pay.
With regard to affirmative defense number (1), Respondent
admits the layoffs, but just denies the legal consequences
flowing from it. Thus, there is no merit to this defense. With
regard to affirmative defense number (2), the fact that the
reasons for the layoffs were economic in nature does not
constitute a valid defense to Respondent’s action in this case,
as discussed below. With regard to affirmative defense num-
ber (3), as discussed below, any notice given to the Union
was insufficient to enable the Union to engage in meaningful
bargaining prior to the implementation of the decision to lay
off employees. With regard to affirmative defense numbers
(4) and (5), Respondent presented no evidence in support of
these defenses. With regard to affirmative defense number
(6), as discussed below, this defense lacks merit.
The issues to be resolved are:
1. Did Respondent lay off employees on March 3, 4, and
30 without prior notice to the Union and without affording
the Union the opportunity to bargain with Respondent with
respect to this conduct and the effects of this conduct on the
employees represented by the Union?
2. Is the layoff of employees included in a collective-bar-
gaining unit represented by the Union a mandatory subject
for the purposes of collective bargaining?
3. Does an appropriate remedy for Respondent’s conduct
include backpay for the employees laid off?
These issues will be discussed below.
B. Events Leading to the Involved Layoffs
As pertinent, East Coast Steel fabricates structural steel
and bridge products for sale throughout New England and
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
New York State. Its customers are contractors and developers
in that area. It operates three plants, two in Greenfield, New
Hampshire, and the involved plant in South Portland, Maine.
One of the Greenfield plants is presently shut down and the
other produces primarily structural steel, light bridge prod-
ucts, and miscellaneous metal products. It is a highly auto-
mated plant as compared with the involved plant, which pro-
duces heavy industrial and bridge products. The employees
at this plant are not represented by a union.
Though the two operation plants have the potential for
some overlapping production functions, the Greenfield plant
is designed to make lighter products and the South Portland
plant is intended and equipped to produce much heavier
products. For example, the South Portland facility is served
by rail, whereas the Greenfield facility is not. The South
Portland facility has no automation and is very labor inten-
sive, whereas the Greenfield plant is highly automated and
much less labor intensive. In late January, the Respondent
placed in service in Greenfield a new machine, costing about
$100,000, that punches holes in metal, allowing the Respond-
ent to shift some work from South Portland to Greenfield.
The machine allowed one employee to do in 1 day what it
took four South Portland employees to do in 5 days. Accord-
ing to the Respondent’s South Portland plant manager, this
new machine affected two or three positions at South Port-
land. These were persons who laid out metal plate and
punched it.
There was a steel shortage experienced in New England
beginning in early January because of a shutdown of the
Bethlehem Steel Mills in Pennsylvania for periods of time
beginning in December 1993 and continuing into January
and February due to power shortages and a startup problem
thereafter. The Respondent began experiencing delays in re-
ceipt of raw steel shipments in mid-January and delays con-
tinued until May. General Counsel’s Exhibit 9 is a letter
dated February 14 from Bethlehem Steel to Respondent
apologizing for delays in shipments of steel and noting such
delays would likely continue. Respondent received another
letter dated March 10, from the supplier stating that a ship-
ment of steel plates promised for shipment January 2 was not
shipped until February 17. The letter concludes by saying
that Bethlehem Steel believed their problems were behind
them and normal deliveries would resume in May. These let-
ters were faxed to Respondent on the dates they were writ-
ten. The February 14 letter was not the first notice that Re-
spondent had received about delays in shipment in the winter
of 1993–1994.
The delays in receipt of raw steel was one of the reasons
employees were laid off on March 3, 4, and 30. The Re-
spondent considered the shortages of steel experienced in
early 1994 unprecedented, as it had not experience prior
shortages since 1981. The delays in initial shipments from
Bethlehem were aggravated by rail delays and receipt of only
partial shipments, precluding fabrication until the entire order
was received. With respect to rail shipment, the normal de-
livery time is 3 weeks, and for several weeks in the winter
of 1994, this time was extended to 4 to 5 weeks. Using com-
pany documents, the Respondent pointed out that it pur-
chased a large amount of material in November 1993, with
an anticipated shipping date between December 25, 1993,
and January 1, 1994, and delivery 2 to 3 weeks later.
This document shows shipping orders, order date, prom-
ised shipping date, actual shipping date, and date received.
For the relevant time frame, it reflects the following:
Order
Date
Promised Ship
Date
Actual Ship
Date Received
11/24/93 12/25/93 1/12/94 2/16/94
11/24/93 12/25/93 1/18/94 3/1/94
11/24/93 12/25/93 1/5/94 3/9/94
11/24/93 12/25/93 1/6/94 3/3/94
11/24/93 12/25/93 1/10/94 3/16/94
11/24/93 1/1/94 2/2/94 3/9/94
11/30/93 12/25/93 2/3/94 2/8/94
11/30/93 2/4/94 2/4/94
11/30/93 2/3/94 2/8/94
2/9/94 4/2/94 4/6/94 4/18/94
2/9/94 4/2/94 4/4/94 4/14/94
2/9/94 4/2/94 4/6/94 4/18/94
2/9/94 4/2/94 4/4/94 4/14/94
The Respondent let its customers know when it became
apparent that delays in receipt of raw material would begin
to affect shipment of completed product. Although some of
their customers have liquidated damage clauses in contracts
with their customers, there is no evidence that such damages
had to be paid because of the problems in the winter of
1994.
Another reason and the actual catalyst for at least the
March 3 and 4 layoffs involved the elimination of a night
shift. In September 1993, Respondent put on a night shift
using a leadman and seven or eight employees to facilitate
its handling of a particular order. There was some hope this
could become a permanent shift; however, the shift was ter-
minated in mid-February. The primary reason for ending the
shift was an accident that occurred on February 10, when a
crane dropped a steel beam. The lack of full-time crane oper-
ators on the shift was the cause of the accident. Respondent,
fearful of the danger exposed by the accident, stopped the
shift the following week. Respondent’s plant manager, while
acknowledging the material shortage played a role in all de-
cisions at the time, stated that the safety problem was the
cause of the second-shift shutdown.
When the second shift stopped, about February 17 or 18,
the Company had to evaluate what to do with the men placed
back on the first shift. According to the plant manager, it
took about 2 weeks to evaluate the situation. During this pe-
riod, some of the former second-shift employees did odd jobs
and repair work. According to the plant manager, when the
second shift ended, it was inevitable that there would be a
layoff. The plant management prepared a list prioritizing unit
employees by performance, ability, and the positions needed
and this list was used to determine who would be laid off.
With respect to the layoff in question, Respondent’s Exhibit
8 reflects the layoff of Robert McDonald, Timothy McCann,
Douglas Gladden, and Charles Grover on March 3, and the
layoff of Raymond Howland and Andrew Holbrook on
March 4. All but Holbrook were recalled May 9, with Hol-
brook returning to work on May 23. The exhibit also reflects
845EAST COAST STEEL, INC.
2 I do not believe it was agreed that these represent all employees
laid off, and there was also some question was raised in the record
whether one or more of the laid-off employees was a supervisor.
These matters can be handled at the compliance stage of this case.
3 Although it is not part of the complaint allegations, there is a
case to be made that the decision to end the night shift would be
a mandatory subject of bargaining and Respondent’s failure to give
notice to the Union and bargain over this decision is also a violation
of the Act.
the layoff of Kenneth Fowler, Michael Becker, and Loring
Morrell on March 30, with the three being recalled May 9.2
On brief, the Respondent asserts that the March 3 and 4
layoffs were the result of the combined effect of the new ma-
chine purchase, the termination of the second shift, and the
delays in receipt of material. The March 30 layoff was the
result of the ongoing delays in receipt of material to fab-
ricate.
C. The Respondent’s Communications with the Union
about the Layoffs
The Respondent laid off employees on March 3, 4, and 30,
partially because of the shortages and/or delays in delivery
of steel. This would have impacted its ability to use the em-
ployees coming off the canceled second shift. No notice was
given by Respondent to the Union about the layoffs prior to
the occurrence of the layoffs on March 3 and 4. As noted
below, notice of the March 30 layoff was given to the Union
on March 29, though no opportunity was given to bargain
over the decision to lay off or its effects. The employees laid
off at South Portland were recalled May 9 by shifting some
Greenfield work to South Portland.
After certification on March 2, the first meetings between
Respondent and the Union for negotiations occurred April 5.
This meeting was set up by a call between the Union’s rep-
resentative and that of the Respondent on March 9. The
Union was not notified about the layoffs of March 3 and 4
on that date or any prior date. On March 29, the parties
again spoke by phone. In this call, the company representa-
tive stated that the Company had encountered problems with
delivery of steel and it was affecting their ability to get work
out. Because of this it was going to be necessary to layoff
three employees either that day or the next day. The Union
responded that the Company had previously unilaterally laid
off unit employees without discussion with the Union, and
that the Company was not affording the Union the oppor-
tunity to discuss the most recent layoff decision and its ef-
fects. The layoffs occurred the next day.
At the April 5 meeting between the parties, the Union ex-
pressed its concern over the layoffs and the lack of oppor-
tunity to bargain over the decision to layoff and the effects
of the layoffs. The Company responded that the layoffs were
based on a lack of work and that was the cause of the deci-
sion to layoff. The Company expressed its position that it
had the right to make the layoffs and would not discuss the
matter further. The Union stated that it had an ongoing re-
quest to negotiate the matter.
On April 7, the Union sent Respondent a letter further in-
sisting that no unilateral changes in working conditions, in-
cluding layoffs, be made by the Respondent without afford-
ing the Union an opportunity to bargain over the decision
and its effects.
On April 28, another meeting between the parties took
place. The Union renewed its request that the Company dis-
cuss the effects of the earlier unilateral layoffs. The Union
also demanded that the affected employees be reinstated and
paid backpay. The Company denied the request, saying that
it was not going to negotiate layoffs after the fact.
On May 18, another meeting took place. The Union raised
the matter of the layoffs and was advised that the laid-off
employees had been recalled. The Union said it wanted to
negotiate over the period of time they had been laid off and
the Company refused.
D. Conclusions with Respect to the Issues
The Board has consistently held that an employer’s deci-
sion to lay off employees for economic reasons is a manda-
tory subject of bargaining and that an employer must provide
notice to and bargain with the Union concerning the decision
to lay off bargaining unit employees and the effects of that
decision. Plastonics, Inc., 312 NLRB 1045, 1048 (1993);
Stamping Specialty Co., 294 NLRB 703 (1989); Lapeer
Foundry & Machine, 289 NLRB 952 (1988). I believe it is
clear in this case that the layoffs in question were motivated
by economic reasons, that is, lack of raw materials to sustain
production because of delays in shipments and deliveries,
and not by any change in the scope and direction of the busi-
ness. Respondent asserts, inter alia, that the layoffs were oc-
casioned by the shift of a metal punching function from
South Portland to Greenfield following the purchase of a
new machine for Greenfield. This shift of function affected
two or three positions at South Portland. Significantly, this
shift of function occurred in early February, and occasioned
no layoffs at that time. The Respondent was able to absorb
at that point the loss of work at South Portland without re-
sorting to layoffs. Thus, I find the reason for the layoffs to
be elsewhere.
The discontinuance of the night shift because of the danger
of operating it without full-time crane operators was the
event that triggered the layoffs some 2 weeks hence.3 The
discontinuance of the night shift is also tied to the shortage
of raw materials. If there had been a steady flow of raw ma-
terials, there may well have been enough work to justify
placing more crane operators on the night shift and continue
it safely. The fact, however, that there was no production
work for the night-shift employees when they returned to day
shift indicates to me that the primary problem was an inabil-
ity to sustain production because of material shortages.
The Board has held that the establishment of ‘‘compelling
economic circumstances’’ may excuse a company’s failure to
bargain over a layoff decision, but that such an exception
shall only apply in ‘‘extraordinary situations.’’ Lapeer
Foundry, supra. The only ‘‘extraordinary situation’’ that can
be said to exist in this case is the delay in receipt of raw
materials that disrupted production. Yet, this delay was a fact
of life for the Respondent beginning in January. There was
no showing that something out of the ordinary occurred on
March 2 that would compel layoffs on March 3 or 4, or
similarly, an event occurred on March 29 compelling the
March 30 layoffs. Indeed, the testimony of the plant manager
demonstrates that it was certain that a layoff would occur at
some point when the night shift ended on February 17 or 18
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Board law requires an employer, after reaching a decision con-
cerning a mandatory subject, to delay implementation of the deci-
sion, until after it has consulted with the bargaining representative,
but does not require that the employer delay the decision-making
process itself. Haddon Corp., 300 NLRB 789, 790 fn. 8 (1990).
5 Respondent’s obligation under Sec. 8(a)(5) of the Act to refrain
from making unilateral changes in working conditions commences at
the time of an apparent ballot victory for a labor organization, rather
than at the time of its official certification. Consolidated Printers,
305 NLRB 1061, 1067 (1992); Norco Products, 288 NLRB 1416,
1422 (1988); Angelica Healthcare Systems, supra at 852. Here the
Union had even notified the Respondent shortly after the election
that Respondent should not make any changes in working conditions
without first notifying the Union. The layoffs on March 3 and 4 oc-
curred after the Board issued its certification on March 2, and even
assuming that Respondent had not received the certification by
March 3, it still had the duty to notify and bargain with the Union
prior to the implementation of the March 3 and 4 layoffs.
and that the material shortage that occasioned the March 30
layoff had been a problem for months.4
Given the fact that the delay in receipt of the raw mate-
rials was an ongoing problem, and that the night shift was
canceled over 2 weeks before the first layoffs, I do not be-
lieve that Respondent has demonstrated that its situation
should fall within the exception excusing the Company’s
failure to notify the Union and bargain with it over the deci-
sion to layoff and the effects thereof. There is simply no
showing of urgency or that immediate harm would result that
would preclude taking time to bargain with the Union. For
example, the Respondent knew at least 2 weeks prior to the
March 3 and 4 layoffs that they would occur at some junc-
ture. There is no explanation why bargaining with the Union
could not have taken place in that 2-week timeframe. See
Plastonics, Inc., supra; Angelica Healthcare Services, 284
NLRB 844, 853 (1987). Moreover, as stated by the Board in
Lapeer Foundry & Machine, supra, ‘‘In light of the eco-
nomic circumstances motivating a company’s decision to lay
off employees, however, we will require that negotiations
concerning this decision occur in a timely and speedy fash-
ion. Thus should a Union fail to request bargaining in a
timely fashion once the company has provided it with notice
of the layoff decision, we will find that the company has sat-
isfied its bargaining obligation.’’ Id. at 954.
I believe that the Respondent could have given notice and
engaged in timely bargaining over the decision before it
found it necessary to lay off its employees. It was protected
from inaction or delay on the part of the union as noted in
Lapeer Foundry & Machine, supra. No notice whatsoever
was, however, given to the Union with respect to the first
layoffs and notice of the second round of layoffs was pre-
sented as a fait accompli, with no opportunity to bargain
over the decision being given.5 As stated by the Board in
Lapeer Foundry & Machine: ‘‘Moreover, the employer’s
duty to bargain will require meaningful negotiations concern-
ing the decision to lay off, and not merely the notification
to the union that it is a fait accompli.’’ Id. at 954.
Thus, by not giving the Union timely notice of its decision
to lay off employees on March 3, 4, and 30, and by failing
to afford the Union an opportunity to engage in meaningful
negotiations regarding the decisions and effects of those deci-
sions on unit employees, Respondent violated Section 8(a)(5)
and (1) of the Act. Plastonics Inc., supra; Stamping Specialty
Co., supra; Lapeer Foundry & Machine, supra; Norco Prod-
ucts, supra; and Angelica Healthcare Systems, supra.
Further, the record established that upon receiving the ini-
tial notification by telephone about the layoffs on March 29,
the Union immediately requested bargaining about the deci-
sion to lay off employees and the effects of the layoffs in
the same conversation. Additionally, the Union made such
requests in its letter of April 7 and at the negotiation sessions
of April 5 and 28 and May 18. These requests were met with
unequivocal refusals by Respondent to bargain about this
issue. This latter conduct further amplifies the fact that the
Union was presented with a fait accompli and demonstrates
that Respondent never had any intention to bargain about the
layoff decision and its effects on employees. Thus, Respond-
ent violated Section 8(a)(5) and (1) of the Act by this con-
duct. Plastonics, Inc., supra.
Although Respondent presented no evidence that the
Union waived its right to bargain about this issue, the
Union’s notification of its desire to bargain over any changes
in working conditions on November 5, 1993, and the re-
quests to bargain by the Union on March 29, April 5, 7, and
28, and May 18 after the Union received notice of the lay-
offs is conclusive evidence that the Union did not waive its
right to bargain. It is well settled that a waiver of bargaining
rights must be ‘‘clear and unmistakable.’’ Norco Products,
supra at 1422 fn. 9.
As noted earlier, the Respondent has urged that no award
or at most, a limited award of backpay be made if it is found
to have violated the Act. The traditional remedy for unlawful
unilateral layoffs, based on legitimate economic concerns, in-
cludes requiring the payment of full backpay, plus interest,
for the duration of the layoff. Plastonics, Inc., supra; Lapeer
Foundry & Machine, supra at 955–956. I find no reason to
make an exception in this proceeding. Respondent made not
one but two conscious decisions to lay off unit employees
without bargaining with the Union in the face of continuous
requests to do so by the Union. Respondent could argue that
the first instance of failure to notify and bargain was an
oversight, but its subsequent conduct demonstrates that it was
a willful violation of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By laying off its unit employees on March 3 and 4,
1994, without giving the Union notice of its intention to do
so, and by laying off its unit employees on March 30, 1994,
with inadequate notice, and without affording the Union an
opportunity to bargain in good faith over those decisions and
their effects, the Respondent has engaged in conduct in vio-
lation of Section 8(a)(5) and (1) of the Act.
4. The unfair labor practices found to have been commit-
ted by Respondent affect commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in conduct in
violation of Section 8(a)(5) and (1) of the Act, it is ordered
847EAST COAST STEEL, INC.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
to cease and desist therefrom and to take certain affirmative
action necessary to effectuate the policies of the Act.
It is recommended that Respondent be ordered to make
whole, with interest, those unit employees who were laid off
in the period from March 3 to May 9, 1994, for any loss of
pay or other employment benefit suffered as a result of this
unlawful unilateral action. Backpay should be computed in
the manner set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). Respondent should also
be ordered to post an appropriate notice.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, East Coast Steel, Inc., South Portland,
Maine, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off its unit employees without first giving no-
tice of its intention to do so to the Union and affording the
Union an opportunity to bargain in good faith over that deci-
sion and its effects.
(b) In any like or related manner interfering with, restrain-
ing, or coercing you in the exercise of rights guaranteed you
by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Give notice to the Union before it implements any fu-
ture economic layoff and give the Union the opportunity to
bargain over that decision and its effects, unless the parties
agree to a different procedure in a written collective-bargain-
ing agreement.
(b) Make whole, with interest, those unit employees who
were laid off in the period March 3 to May 9, 1994, for any
loss of pay or other employment benefits suffered as a result
of this unlawful unilateral action.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its South Portland, Maine facility copies of the
attached notice marked ‘‘Appendix.’’7 Copies of the notice,
on forms provided by the Regional Director for Region 1,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.