Eugene Iovine, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2008

353 N.L.R.B. 400 (N.L.R.B. 2008)

EUGENE IOVINE, INC.
353 NLRB No. 36
400
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
September 30, 2008
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On August 31, 2006, Administrative Law Judge David
I. Goldman issued the attached supplemental decision.
The Respondent filed exceptions and a supporting brief.
The National Labor Relations Board1 has considered
the supplemental decision2 and the record in light of the
exceptions and brief3 and has decided to affirm the
judge’s rulings, findings, and conclusions as modified
and to adopt the recommended Order as modified and set
forth in full below.4
The judge found, and we agree, that the Respondent
violated Section 8(a)(5) and (1) of the Act by laying off
employees without providing the Union timely notice
and an opportunity to bargain over the layoffs. In mak-
ing that finding, the judge rejected the Respondent’s af-
firmative defense that it was merely adhering to a consis-
tent past practice of unilaterally implementing layoffs in
response to work- or weather-related delays on its con-
struction projects. We agree with the judge’s rejection of
that defense but only for the following reason.

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 Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 See Eugene Iovine, Inc., 347 NLRB 258 (2006) (remanding this
case for further consideration).
3 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and brief adequately present the issues
and positions of the parties.
4 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language, see Excel Container, Inc., 325
NLRB 17 (1997), and to correct the judge’s inadvertent double listing
of employees Mike Matone and Phil Spannagel. We shall substitute a
new notice to conform to the Order as modified.
We also amend the judge’s remedy in one respect. The judge’s rem-
edy provides for the calculation of backpay in the manner prescribed in
Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971). The unfair labor practice violations found here, how-
ever, involved disruptions of employment. Therefore, backpay shall be
calculated in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950). See, e.g., Pan American Grain Co., 343 NLRB 318, 344
(2004), enfd. in part 448 F.3d 465 (1st Cir. 2006); Wilen Mfg. Co., 321
NLRB 1094, 1100 (1996).
The judge found that, even if the Respondent had a
practice of unilaterally implementing layoffs prior to the
Union’s certification (in February 1993), the Respondent
failed to establish that it had continued that practice over
the nearly 4 years between the certification and the lay-
offs at issue here, which began in December 1996. The
Respondent’s president testified that it had unilaterally
laid off employees “from 1971 to when this issue arose
in 1998.” He offered few specifics, recounting only that
such layoffs could have occurred as a result of inclement
weather, failure of other trades to complete their work,
and, in the case of the New York City transit authority,
when it could not supply necessary flagman or work
trains. Although he did not know the details of any of
the layoffs at issue in this case, he testified that the lay-
offs would have been for the same reasons as earlier
ones.
The party asserting the existence of a past practice
bears the burden of proof on the issue and the evidence
must show that the practice occurred “with such regular-
ity and frequency that employees could reasonably ex-
pect the ‘practice’ to continue or reoccur on a regular and
consistent basis.” Sunoco, Inc., 349 NLRB 240, 244
(2007); Philadelphia Coca-Cola Bottling Co., 340 NLRB
349, 353 (2003), enfd. mem. 112 Fed. Appx. 65 (D.C.
Cir. 2004). The record here falls short of such a show-
ing. Absent evidence of when or how frequently or un-
der what circumstances the asserted unilateral layoffs
occurred, both before and after February 1993, we cannot
conclude that the Respondent has demonstrated that the
challenged layoffs were permitted as a continuation of an
established past practice. See Eugene Iovine, Inc., 328
NLRB 294, 294 (1999), enfd. mem. 1 Fed. Appx. 8 (2d
Cir. 2001) (finding that the Respondent failed to provide
sufficiently specific evidence to establish a past practice
of reducing hours). In view of the foregoing, we find it
unnecessary to pass on the judge’s discussion of whether
a past practice based on the acquiescence of a prior union
can be relied on to unilaterally impose changes on a new
union.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Eugene Iovine, Inc., Farmingdale, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from

5 In Member Liebman’s view, the judge’s discussion and resolution
of that issue is fully consistent with Board precedent. See, e.g., Eugene
Iovine Inc., supra, 328 NLRB at 297.
EUGENE IOVINE, INC. 401
(a) Laying off employees for economic reasons in the
bargaining unit represented exclusively by Local 3, In-
ternational Brotherhood of Electrical Workers, AFL–
CIO, without providing the Union timely notice and an
opportunity to bargain about the decision to lay off em-
ployees and the effects of the layoff. The bargaining unit
is:
All electricians, electrical maintenance mechanics,
helpers, apprentices and trainees employed in the elec-
trical field who are employed by employer-members of
the United Electrical Contractors Association, a/k/a
United Construction Contractors Association, but ex-
cluding all office clerical employees, guards and super-
visors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Before laying off bargaining unit employees for
economic reasons, notify and, on request, bargain with
the Union as the exclusive collective-bargaining repre-
sentative of employees in the bargaining unit described
above over the layoff decision and its effects.
(b) Within 14 days from the date of this Order, to the
extent that it has not already done so, offer the following
employees and other similarly situated employees imme-
diate reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed:
William Alleyne John Betancourt Greg Stafford
Hugh Oakley Peter Capasso Lenford Anderson
Leslie Thomas Mike Matone Salvatore DePetro
Anthony Longo Wayne Munyon Clifford Pelzer
Charlie Sarullo Phil Spannagel William Grady
Gary Schulz Ararson Medrano Louis Cordero
Ed Wellington Phil Nola Russell Sausa
Allen Tu Mario Thalassinos John Siano
Jose LaSalle Glen Lillibridge Robert Lock
Edward Shane Richard Zeller Derrick Robinson
(c) Make whole the unit employees named above in
subparagraph 2(b), and other similarly situated employ-
ees, for any loss of earnings and other benefits they may
have suffered as a result of the Respondent’s unlawful
conduct, in the manner set forth in the remedy section of
the judge’s decision, as amended.
(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 re-
cords and reports, and all other records, including an
electronic 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 Farmingdale, New York copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt 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, 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
since December 6, 1996.
(f) 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 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.

6 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD402
WE WILL NOT lay off employees in the bargaining unit
represented exclusively by Local 3, International Broth-
erhood of Electrical Workers, AFL–CIO for economic
reasons without providing the Union timely notice and an
opportunity to bargain about the decision to lay off em-
ployees and its effects. The bargaining unit is:
All electricians, electrical maintenance mechanics,
helpers, apprentices and trainees employed in the elec-
trical field who are employed by employer-members of
the United Electrical Contractors Association, a/k/a
United Construction Contractors Association, but ex-
cluding all office clerical employees, guards and super-
visors 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
set forth above.
WE WILL, before laying off bargaining unit employees
for economic reasons, notify and, on request, bargain
with the Union as the exclusive collective-bargaining
representative of employees in the bargaining unit de-
scribed above over the layoff decision and its effects.
WE WILL, within 14 days from the date of this Order,
to the extent that we have not already done so, offer the
following employees and other similarly situated em-
ployees immediate reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed:
William Alleyne John Betancourt Greg Stafford
Hugh Oakley Peter Capasso Lenford Anderson
Leslie Thomas Mike Matone Salvatore DePetro
Anthony Longo Wayne Munyon Clifford Pelzer
Charlie Sarullo Phil Spannagel William Grady
Gary Schulz Ararson Medrano Louis Cordero
Ed Wellington Phil Nola Russell Sausa
Allen Tu Mario Thalassinos John Siano
Jose LaSalle Glen Lillibridge Robert Lock
Edward Shane Richard Zeller Derrick Robinson
WE WILL make the employees listed above, and other
similarly situated employees, whole for any loss of earn-
ings and other benefits suffered as a result of their unlaw-
ful layoff, plus interest.
EUGENE IOVINE, INC.
Kathy Drew King, Esq., for the General Counsel.
Steven Goodman, Esq., of Woodbury, New York, for the Re-
spondent.
Vincent McElroen, of Flushing, New York, for the Charging
Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
DAVID I. GOLDMAN, Administrative Law Judge. Pursuant to
charges filed by Local Union No. 3, International Brotherhood
of Electrical Workers (the Union or Local 3)1 the Board’s Gen-
eral Counsel issued a consolidated complaint on February 11,
1998 (GC Exh. 1(e)),2 and a second consolidated complaint on
October 27, 1998. (GC Exh. 1(gg).)3 On September 20, 2001,
the cases in the two consolidated complaints were consolidated
for trial. (GC Exh. 1(ll).)
The consolidated complaints allege that Respondent Eugene
Iovine, Inc. (Iovine) laid off employees between December
1996 and May 1998 without providing Local 3—which was the
employees’ certified bargaining representative—sufficient and
timely notice to afford the Union a meaningful opportunity to
bargain with Iovine over the layoffs. This occurred notwith-
standing that Local 3 and the employer bargaining association
representing Respondent were engaged in collective-bargaining
negotiations regarding Respondent’s employees. Iovine’s con-
duct is alleged to be violative of Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act). Respondent denies any
violation of the Act.
This case was tried in Brooklyn, New York, on February 21,
2002, before Administrative Law Judge Howard Edelman.
Judge Edelman issued his decision on April 17, 2002. On May
31, 2006, the Board remanded this case to the chief admin-
istrative law judge for reassignment to a different administra-
tive law judge with the instruction to “review the record and
issue a reasoned decision.” Eugene Iovine, Inc., 347 NLRB
258 (2006). On June 8, 2006, Chief Administrative Law Judge
Robert A. Giannasi reassigned this case to me pursuant to the
Board’s remand. On the entire record and after considering the
briefs filed by the General Counsel and Respondent, I make the
following

1 Except as noted herein, each charge was filed against Eugene Io-
vine, Inc. The original charge was filed in Case 29–CA–21052 on May
28, 1997. The charge in Case 29–CA–21086 was filed June 11, 1997.
The charge in Case 29–CA–21840–3 was filed March 17, 1998, and the
first amended charge in that case filed June 5, 1998. The charge in
Case 29–CA–21840–4 was filed against Action Electric Co. on March
19, 1998, the first amended charge in that case filed June 5, 1998, and a
request to withdraw the charge was approved by order dated March 14,
2001. The charge was filed in Case 29–CA–1858 against Gilston Elec-
tric Co. on March 25, 1998, and the first amended charge in that case
filed June 5, 1998. A request to withdraw this charge was approved by
order dated March 14, 2001. The charges were filed in Cases 29–CA–
21879–1 and 29–CA–21879–2 on April 2, 1998. The charge was filed
in Case 29–CA–22030 on May 20, 1998.
2 The February 11, 1998 consolidated complaint covered Cases 29–
CA–21052 and 29–CA–21086.
3 The October 27, 1998 consolidated complaint covered Cases 29–
CA–21858, 29–CA–21840–3, 29–CA–21879–1, 29–CA–21879–2, 29–
CA–22030, and 29–CA–21840–4. Subsequently, by order dated March
14, 2001, a request to withdraw the charges in Cases 29–CA–21858
and 29–CA–21840–4 was approved and these cases were severed from
this consolidated complaint. As a result of the severing of these cases,
Respondents Gilston Electrical and Action Electrical were no longer
respondents in this proceeding.
EUGENE IOVINE, INC. 403
FINDINGS OF FACT
I. JURISDICTION
Iovine, a corporation, provides electrical contracting services
to other business firms and government entities at jobsites in
the New York City area. Its principal place of business is in
Farmingdale, New York. From there Iovine annually performs
services in excess of $50,000 for various enterprises located in
the State of New York, each of which, in turn, is directly en-
gaged in interstate commerce. I find that Respondent is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. Respondent admits and I further
find that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICES
Facts
Respondent performs electrical contracting primarily on pub-
lic works projects within New York City. At all materials
times Iovine has been a member of an employers’ bargaining
association known as the United Electrical Contractors Asso-
ciation or United Construction Contractors Association (the
Association). The Association represents Iovine in collective
bargaining with the Union representing Respondent’s (and
other Association-members) bargaining unit employees.
In approximately 1971, Iovine, along with and as a member
of the Association, entered into a collective-bargaining contract
with Local 363 of the International Brotherhood of Teamsters
(Local 363). Local 363 represented Iovine bargaining unit
employees for many years thereafter and was signatory to a
succession of collective-bargaining agreements with the Asso-
ciation covering, among others, Iovine employees. Pursuant to
those contracts, Iovine and Local 363 had an understanding that
the layoff of employees did not require Iovine to notify Local
363 or to bargain over the decision to lay off employees, or
over the effects of the layoff. The agreement with Local 363
was that in layoff situations Iovine’s only notification obliga-
tion was to notify the benefit funds covering the laid-off em-
ployee. Iovine would do this by sending a card (e.g., R. Exh. 1)
to the administrator of the Local 363 funds, which included a
health and welfare fund, an annuity fund, a pension fund, and
an education fund. At no time during the years that it repre-
sented Iovine employees did Local 363 ever request bargaining
over layoffs.
After an October 18, 1989 election, Charging Party Local 3
was certified on February 23, 1993, as the collective-bargaining
representative of the bargaining unit employees of the Associa-
tion’s member employers, including Iovine. The bargaining
unit consisted of:
All electricians, electrical maintenance mechanics, helpers,
apprentices and trainees employed in the electrical field em-
ployed by the employer-members of [the Association], but
excluding all office clerical employees, guards and supervi-
sors defined in the Act.
The Association unsuccessfully challenged this certification
and bargaining for a labor agreement commenced in October
1994. As of the date of the hearing in this case, no collective-
bargaining agreement had been reached between the parties.
In December 1996 through May 1998 Respondent unilater-
ally laid off certain bargaining unit employees. On December
6, 1996, Respondent laid off employee William Alleyne. On
January 3, 1997, Respondent laid off employee Hugh Oakley.
Iovine did not provide the Union with notice (before or after the
fact) of these layoffs. However, consistent with its practice
maintained during its contractual relationship with the prede-
cessor union Local 363, Iovine notified the Local 363 funds
still applicable to and covering Oakley and Alleyne.
On December 19, 1997, Respondent laid off employee Leslie
Thomas. Respondent concedes (R. Br. at 5 fn. 3) that no notice
of Thomas’ layoff was ever provided to the Union. Subse-
quently, the Union learned of the layoff and on March 30,
1998, requested that Iovine meet to bargain regarding this lay-
off. (GC Exh. 25.)
In the months after Alleyne and Oakley were laid off,
charges were filed over the layoffs and Iovine learned that the
Board’s Regional Director intended to issue a complaint based
on the charges. Without intending to prejudice its position that
it had “no obligation to notify [the Union] concerning layoffs”
(see, e.g., GC Exhs. 4, 8, 9 15, 17, 19, 21, and 24), Respondent
altered its practice and began to provide notice of the layoffs to
the Union after or in some cases as it laid off an employee.
Thus, by letter dated January 12, 1998, Respondent (through
counsel) advised the Union that employees Anthony Longo and
Charlie Sarullo had been laid off the evening of January 9,
1998. By letter dated January 20, 1998, Respondent (through
counsel) advised the Union that employees John Betancourt,
Peter Capasso, Mike Matone, Wayne Munyon, Phil Spannagel,
Greg Stafford, Lenford Anderson, Salvatore DePetro, and Clif-
ford Pelzer had been laid off on January 16, 1998. By letter
dated January 23, 1998, Respondent (through the Association)
advised the Union that it had laid off employees William
Grady, Gary Schulz, and Ed Wellington on January 23, 1998.
On January 26, 1998, Respondent (through the Association)
advised the Union that on January 16, 1998, it had laid off em-
ployees Allen Tu, Jose LaSalle, Edward Shane, Louis Cordero,
and Ararson Medrano. By letter dated February 25, 1998, Re-
spondent (through the Association) advised the Union that on
February 20, 1998, it had laid off employee Phil Nola. By let-
ter dated March 16, 1998, Respondent (through the Associa-
tion) advised the Union that on March 13, 1998, it had laid off
employee Mario Thalassinos. On March 27, 1998, Respondent
(through the Association) advised the Union that on March 27,
1998, it had laid off employees Glen Lillibridge and Richard
Zeller. In a separate letter also dated March 27, 1998, Respon-
dent notified the Union that on March 27, 1998, it had laid off
employees Robert Lock, Mike Matone, Russell Sausa, John
Siano, and Phil Spannagel. By letter dated May 19, 1998, Re-
spondent advised the Union that on May 15, 1998, it had laid
off employee Derrick Robinson.
In response to the layoff notices sent by Respondent, Local 3
requested bargaining regarding the layoffs and made informa-
tion requests. (GC Exhs. 3, 6, 7, 16, 18, 20, 22, and 25.) Re-
spondent’s president, Eugene Iovine, testified that he under-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD404
stood that Local 3 wanted to bargain over the decision to lay off
employees. (Tr. 89–90.)
Eugene Iovine testified that in the construction industry lay-
offs may be economically warranted for a number of reasons
that develop on short notice. For instance, this can happen
when employees are working outside and inclement weather
delays a job. In addition, Iovine described Respondent’s elec-
trical contracting work as a “following trade” which, he ex-
plained, was a trade that could begin its work on a project only
once other trades, such as carpenters, plumbers, and HVAC
workers had completed or reached certain stages in their work
on a project. If the other trades failed to complete their work
on schedule that could mean that Respondent would not have
work available as scheduled and Respondent might look to lay
off employees. Iovine also described a problem that could arise
if the New York City transit authority, a frequent project
owner, did not supply flagmen or work trains as scheduled. In
that case, Respondent could not perform its scheduled work and
that might warrant layoffs.
The decision to lay off employees is made by the foreman on
the job. As Respondent’s counsel explained, “[T]here are a
whole lot of factors that go into what causes layoffs at a con-
struction site.” (Tr. 39.) Generally, if employees arrive at work
and find that a scheduled job is not ready, the foreman keeps
the employees for the day and finds something for them to do
until the job is ready. Based on the circumstances, the foreman
will decide “whether they were coming back the next day, or
the next week or whatever.” (Tr. 94.) When jobs are temporar-
ily shut down, sending employees to other worksites is a com-
mon alternative to layoffs.4 If it appears that the scheduled job
will not be ready for “any period of time,” and there is no other
work for employees, “the foreman would say, hey, they’re not
going to be back, I don’t need them” and the foreman would
call the office and initiate a layoff. (Tr. 86–87, 94.) Eugene
Iovine could not recall the specific reasons for any of the lay-
offs at issue in this case, but he agreed that they occurred be-
cause work was unavailable for one of the reasons described in
his testimony. (Tr. 84–85.)
III. DISCUSSION AND ANALYSIS
The general outline of the relevant law is well settled. Dur-
ing negotiations for a collective-bargaining agreement an em-
ployer may not make unilateral changes in mandatory subjects
of bargaining without first bargaining to a valid impasse.
NLRB v. Katz, 369 U.S. 736 (1962). While negotiations for a
collective-bargaining agreement are ongoing, “an employer’s
obligation to refrain from unilateral changes extends beyond
the mere duty to give notice and an opportunity to bargain; it
encompasses a duty to refrain from implementation at all,
unless and until an overall impasse has been reached on bar-
gaining for the agreement as a whole.” Bottom Line Enter-
prises, 302 NLRB 373, 374 (1991) (footnote omitted), enfd.
mem. 15 F.3d 1087 (9th Cir. 1994). “A bargaining impasse
occurs when good-faith negotiations have exhausted the pros-
pects of reaching an agreement. Good-faith bargaining requires
timely notice and meaningful opportunity to bargain regarding

4 Eugene Iovine, Inc., 328 NLRB 294, 296, 297 (1999).
the employer’s proposed change, as no genuine bargaining can
be conducted where the decision has already been made and
implemented. Thus, no impasse is possible where an employer
presents the union with a ‘fait accompli’ as to a matter over
which bargaining to impasse is required.” Dorsey Trailers,
Inc., 327 NLRB 835, 858 (1999) (citations omitted), enfd.
granted in part and denied in part 233 F.3d 831 (4th Cir. 2000).
Even when negotiations for a new collective-bargaining agree-
ment are not in progress, an employer must give a union notice
of an intended change sufficiently in advance to permit an op-
portunity to bargain meaningfully about the change. Bottom
Line Enterprises, supra; Ciba-Geigy Pharmaceutical Division,
264 NLRB 1013, 1017 (1982) (“To be timely, the notice must
be given sufficiently in advance of the actual implementation of
the change to allow a reasonable opportunity to bargain. How-
ever, if the notice is too short a time before implementation or
because the employer has no intention of changing its mind,
then the notice is nothing more than a fait accompli”), enfd. 722
F.2d 1120 (3d Cir. 1983). In sum, “an employer must at least
inform the union of its proposed actions under circumstances
which afford a reasonable opportunity for counterarguments or
proposals.” Pontiac Osteopathic Hospital, 336 NLRB 1021,
1023 (2001), quoting NLRB v. Citizens Hotel Co., 326 F.2d 501,
505 (5th Cir. 1964). Toma Metals, Inc., 342 NLRB 787, 787 fn.
1 (2004) (announcement of layoffs on day they occurred does
not satisfy duty to provide notice and opportunity to bargain).
The decision to lay off employees for economic reasons is a
mandatory subject of bargaining, and therefore subject to the
requirement of timely advance noticed required by the Act for
good-faith bargaining to impasse. McClain E-Z Pack, Inc., 342
NLRB 337 (2004) (“Decisions to conduct economically moti-
vated layoffs are mandatory subjects of bargaining”); Toma
Metals, Inc., supra; Tri-Tech, Services, 340 NLRB 894, 895
(2003) (“It is well established that the layoff of unit employees
is a change in terms and conditions of employment over which
an employer must bargain”); Ebenezer Rail Car Services, 333
NLRB 167 (2001). As the Seventh Circuit has explained,
“Layoffs are not a management prerogative. They are a manda-
tory subject of collective bargaining. Until the modalities of
layoff are established in the agreement, a company that wants
to lay off employees must bargain over the matter with the
union.” NLRB v. Advertisers Mfg., Co., 823 F.2d 1086, 1090
(7th Cir. 1987), enfg. in relevant part Advertisers Mfg. Co., 280
NLRB 1185 (1986).
The effects of a layoff are also a mandatory subject of bar-
gaining, largely without regard to the cause for the layoff. As
with decisional bargaining, effects bargaining also requires an
employer to provide the union with notice of layoffs before
they occur in order to satisfy the employer’s duty to bargain
over the effects of the layoffs. Kajima Engineering & Con-
struction, 331 NLRB 1604, 1620 (2000); Geiger Ready-Mix
Co. of Kansas City, 315 NLRB 1021, 1021 fn. 8 (1994), enfd.
87 F.3d 1363 (D.C. Cir. 1996). The duty to bargain over the
decision to lay off employees includes the duty to bargain over
the effects of the layoffs. Toma Metals, supra, citing Clements
Wire, 257 NLRB 1058, 1059 (1981).
Here, Respondent was engaged in collective bargaining with
the Union for a new contract, but, not only did Respondent
EUGENE IOVINE, INC. 405
unilaterally implement layoffs without reaching an overall bar-
gaining impasse, it did not provide the Union with notice of the
layoffs sufficient to permit “a reasonable opportunity for
counterarguments or proposals” prior to implementation. With
regard to the layoffs of Alleyne (December 6, 1996); Oakley
(January 3, 1997); and Thomas (December 19, 1997); Respon-
dent admits that it did not provide any notice to the Union. As
to the subsequent layoffs on January 9, 1998 (Longo and Sa-
rullo); January 16, 1998 (Betancourt, Capasso, Matone,
Munyon, Spannagel, Stafford, Anderson, DePetro, Pelzer, Tu,
LaSalle, Shane, Cordero, and Medrano); January 23 (Grady,
Schulz, and Wellington); February 20, 1998 (Nola); March 13,
1998 (Thalassinos); March 27, 1998 (Lillibridge, Zeller, Lock,
Matone, Sausa, Siano, and Spannagel); and May 15, 1998
(Robinson); the evidence shows, and I find that notice was
provided to the Union (by Respondent or by the Association on
its behalf) after the layoffs or in some cases the day that the
layoffs occurred. Pursuant to the authorities discussed supra, it
is clear that even at its best, Respondent’s faxing of a notice to
the Union the day that it laid off employees did not provide the
Union with an opportunity for meaningful bargaining over the
layoff decision or the effects of the layoff.
Respondent’s Defenses
Iovine does not dispute the general applicability of the cited
principles. However, Iovine contends that under the circum-
stances presented here, its conduct is not violative of the Act.
Respondent contends that it had no duty to bargain with Lo-
cal 3 over the layoffs because its conduct was a continuation of
the status quo undertaken pursuant to a longstanding past prac-
tice that it is privileged (and presumably Iovine believes it is
required) to continue until changed through collective bargain-
ing. Respondent argues, very broadly, that “employer re-
sponses to economic conditions do not constitute a violation if
consistent with past practice.” Iovine relies on Board cases
holding that, while a unilateral change in conditions of employ-
ment during negotiations is a violation of the Act, a “unilateral
change made pursuant to a longstanding practice is essentially a
continuation of the status quo—not a violation of Section
8(a)(5).” Courier Journal, 342 NLRB 1093, 1094 (2004). In
this regard, Respondent points out that from 1971 until Local 3
replaced Local 363 as the Iovine employees’ collective-
bargaining representative, the agreement and practice with
Local 363 was that Iovine did not have to notify Local 363 or to
bargain over layoffs.5
A difficulty with this argument is that if Respondent has
shown such a past practice with Local 363, it has not shown
one with Local 3, which is the union that has been the Iovine
employees’ certified collective-bargaining representative since
February 1993, and recognized as such by Iovine since October
1994. In an earlier case involving these parties, Eugene Iovine,
Inc., 328 NLRB 294 (1999), enfd. 1 Fed. Appx. 8 (2d Cir.
20001), the parties stipulated that Respondent’s collective-

5 Although not expressly delineated, Iovine’s contention that its
practice was (and current obligation is) to provide no notice to the
employees’ union regarding layoffs indicates that its claim is that it is
not obligated to engage in either decisional or effects bargaining over
layoffs.
bargaining relationship with Local 363 ended in 1992. 328
NLRB at 296. Respondent points out that there is no evidence
that Local 3 ever requested bargaining over layoffs prior to
filing the charges in the instant cases, but, in fairness, there is
no evidence that it needed to and the record is devoid of evi-
dence from which a past practice regarding layoffs with Local 3
can be established.6 The layoffs at issue in this case occurred
December 1996 through May 1998. Thus, Iovine relies upon a
past practice, the evidence of which is nonexistent for the 2
years after its recognition of Local 3, for the 3-1/2 years since
Local 3’s certification, for 4 years since its collective-
bargaining relationship ended with Local 363 (not to mention
the 5 years since Local 3’s selection by the bargaining unit
employees). A past practice is not part of the “status quo” be-
cause it happened in the past, lay dormant, and an employer
seeks to revive it to privilege unilateral changes undertaken
years later.
Apart from the failure in this case to show a past practice
with Local 3, there is the question of whether a past practice
based on acquiescence of a predecessor union can be relied
upon to impose unilateral changes on a new union. In Courier
Journal, supra, the Board reaffirmed that a unionized em-
ployer’s past practice of unilateral changes may constitute part
of the status quo, and therefore an exception to the duty to bar-
gain over unilateral changes. However, in doing so, the Board
distinguished the situation of a past practice established with
the acquiescence of a predecessor union. The distinction drawn
by the Board in this regard is all the more striking because the
Board referenced this Respondent and this bargaining unit in
making the point. In Courier Journal, the Board held that an
employer’s 10-year practice, with the acquiescence of the un-
ion, of regularly making unilateral changes in employees’
health care program to mirror changes made to the program
covering nonunit employees, privileged the employer to con-
tinue this practice until the parties bargained to impasse over
the subject. 328 NLRB at 1094. In reaching its conclusion, the
Board explained that [t]he significant aspect of this case is that
the Union acquiesced in [the] past practice,” and on this basis
distinguished Eugene Iovine, Inc., 328 NLRB 294 (1999), be-
cause in
that case, the past practice of acquiescence was under a differ-
ent union. Thus, the current union never acquiesced in unilat-
eral changes. Similarly, NLRB v. Katz, supra, holds that a
newly certified union is not bound to the employer’s wholly
discretionary pay increases prior to certification.
342 NLRB at 1094. See also Eugene Iovine, 328 NLRB at 296.
Thus, looking to the very situation at issue here, the Board in
Courier Journal cabined application of the past practice doc-
trine to justify unilateral action by distinguishing situations
where the past practice is based on the acquiescence of a prior

6 I note that a past practice defense to an allegation of unlawful uni-
lateral change is an affirmative defense as to which the respondent
bears the burden of proof. Eugene Iovine, Inc., 328 NLRB at 294 fn. 2.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD406
union but the “current union never acquiesced in unilateral
changes.”7
This result makes sense. While the Board in Courier Jour-
nal explained that the past practice exception “is not grounded
in waiver,” the Board held that “the significant aspect of this
case is that the Union acquiesced” in the past practice. (empha-
sis added). Acquiescence necessarily requires a conscience
decision by the union to permit the employer action. As ex-
plained in Courier Journal, this emphasis on acquiescence
necessarily precludes application of a past practice based on a
prior union’s acquiescence to permit unilateral changes over the
objection of a newly certified union. A union newly arrived on
the scene cannot be said to have acquiesced, agreed, or in any
way condoned practices permitted by a prior union. Indeed, in
many cases employee dissatisfaction with the predecessor un-
ion and its practices with the employer may have led to certifi-
cation of the new union. Assuming, arguendo that Iovine had a
past practice that would have privileged unilateral action to lay
off employees with Local 363, that past practice cannot privi-
lege the continuation of the practice with the currently certified
bargaining repre-sentative.8
Iovine cites one case, University of Pittsburgh Medical Cen-
ter, 325 NLRB 443 (1998), enfd. mem. 182 F.3d 904 (3d Cir.
1999), involving an employer’s defense to a unilateral change
allegation that was based on a past practice developed with a
predecessor union. However, in that case the Board rejected
the employer’s defense. Iovine cites the Board’s finding that
even after a new union was certified, supervisors hired in the
past—with the agreement of a predecessor union—to perform
jobs that included bargaining unit work could continue to per-
form their jobs as they had for many years. However, the prac-
tice of performing work that had been removed long ago from
the bargaining unit was not an issue in the case. The Board
distinguished that practice from the issue that was in dispute:

7 See also, Crittenton Hospital, 342 NLRB 686, 692 (2004) (“even if
the Respondent had, in the past, changed the RN’s dress code without
notifying or consulting with [the previous union], a fact not established
here, it was not at liberty, once [the new union] became certified as the
RN’s new bargaining representative, to continue acting unilaterally
regarding changes in RN’s dress code or, for that matter, as to any other
term and condition of the RN’s employment”); Porta-King Building
Systems, 310 NLRB 539, 543 (1993) (20-year practice of unilateral
changes with union does not justify unilateral changes at relocated
facility represented by same union as this “is not distinguishable from
cases where an employer has claimed the existence of an established
past practice in the absence of any prior union relationship”), enfd. 14
F.3d 1258 (8th Cir. 1994) (“As the ALJ observed, ‘what the Union did
at some other plant at another time as a representative of [different]
employees in an altogether different unit obviously cannot be binding
on this new unit and the labor organization these employees have cho-
sen to represent them’”) (court’s bracketing).
8 I note Member Schaumber’s observation in Larry Geweke Ford,
348 NLRB No. 78, fn. 1 (2005) (not reported in Board volumes), that
“prior acquiescence of the charging party union is not invariably a
requisite element in the past practice analysis.” That observation does
not, however, conflict with the distinction with Eugene Iovine, Inc.
drawn in Courier Journal, a distinction that precludes an employer
from relying on a practice based on a predecessor union’s acquiescence
to impose unilateral changes on mandatory subjects over the objection
of a new union.
the Board found that the employer could not “remove more
bargaining unit work from the unit by creating new supervisory
positions to perform such work without bargaining with the
Charging Party.” In other words, the maintenance of daily
work assignments by supervisors and employees based on a
removal of bargaining unit work that occurred many years ago
was not alleged by the General Counsel to be a new unilateral
change in terms and conditions of employment. However, the
attempt to add more supervisors to perform more bargaining
unit work (of exactly the same type already performed by the
previously hired supervisors) was a new unlawful unilateral
change, just as in the instant case, each additional layoff consti-
tutes a new unilateral change for the formerly working but now
laid-off employee. Thus, University of Pittsburgh Medical
Center is consistent with the proposition in Courier Journal
that once a new union is certified prospective unilateral changes
cannot be privileged based on practices developed with a prior
union.9

9 Iovine cites three cases where the Board or an administrative law
judge agreed that a previously nonunion employer could continue uni-
lateral practices once a union was selected by employees. The cases
are all distinguishable because they are not based on the acquiescence
of a predecessor union. They are also distinguishable on their facts, or
are without precedential value. Iovine cites Kal-Die Casting Corp.,
221 NLRB 1068 (1975), where the Board, without elaboration, permit-
ted unilateral “routine production scheduling and adjustments relating
to diminishing hours of work” based on a past practice developed prior
to unionization, but in that case the Board relied upon the fact that no
evidence shows “that the Union at any time attempted to broach these
issues with Respondent,” which is not the case here. Nor are the lay-
offs here routine. Respondent cites Matheson Fast Freight, Inc., 297
NLRB 63, 76 (1989), in which the judge found that changes to the
starting time of truckdrivers were not a violation, but the Board ex-
pressly adopted this finding “pro forma” in “the absence of excep-
tions,” thus negating any precedential value of the finding. ESI, Inc.,
296 NLRB 1319 fn. 3 (1989). Respondent cites Advertisers Mfg. Co.,
280 NLRB 1185, 1997 (1986), enfd. 823 F.2d 1086 (7th Cir. 1987),
however, the Board rejected Respondent’s similar reliance upon that
case in Eugene Iovine, Inc., supra at 296–297. In Advertisers Mfg.,
among a “raft of unfair labor practices” (823 F.2d at 1087), including
findings of numerous unlawful unilateral changes, the administrative
law judge dismissed an allegation that the employer unilaterally re-
duced hours of work during a 1-year period. As the judge pointed out
in Eugene Iovine, supra, there is no evidence that exceptions to the
Board were taken as to the dismissal of this allegation, calling into
question its validity as precedent. See ESI, supra. Notably in Advertis-
ers Mfg. the Board adopted the judge’s finding that the employer’s
unilateral layoff of employees constituted a violation of Sec. 8(a)(5) of
the Act. Clearly, the overwhelming weight of case law supports the
view that nonunion employers’ past practices will not justify unilateral
implementation of mandatory subjects of bargaining once a union
represents the employees. See, e.g., Essex Valley Visiting Nurses Assn.,
343 NLRB 817, 843 (2004) (“it is well settled that an employer’s past
practice in effectuating discretionary employment decisions, are no
defense to employer’s unilateral changes once the Union is certified”);
Mackie Automotive Systems, 336 NLRB 347, 349 (2001) (“It is well
settled that an employer’s past practices prior to the certification of a
union as the exclusive collective-bargaining representative of the em-
ployees do not relieve the employer of the obligation to bargain with the
certified union about the subsequent implementation of those practices
that entail changes in wages, hours, and other terms and conditions of
employment of unit employees”); Eugene Iovine, 328 NLRB at 296;
EUGENE IOVINE, INC. 407
Finally, even without the barrier to Respondent’s past prac-
tice argument posed by the interposition of a new union, it
would be inappropriate under the circumstances to find that its
layoffs were a past practice that could be implemented without
bargaining. In NLRB v. Katz, the Supreme Court rejected the
employer’s past practice defense to unlawful unilateral imple-
mentation of wage raises despite the “the fact that the [ ]
raises were in line with the company’s long-standing practice of
granting quarterly or semiannual merit reviews––in effect, were
a mere continuation of the status quo.” The Court reached its
conclusion because “the raises here in question were in no
sense automatic, but were informed by a large measure of dis-
cretion.” 369 U.S. at 746. The Board’s approach to past prac-
tice contentions turns on this very point. As explained in Our
Lady of Lourdes Health Center, 306 NLRB 337, 339–340
(1992), in reasoning the Board has called “controlling:”10
Whether a change is a permissible continuation of the status
quo turns on the degree of discretion involved. Thus, in
NLRB v. Katz, supra at 369 U.S. at 746, the Supreme Court
concluded that certain so-called merit raises were unlawful
because they were not “automatic raises to which the em-
ployer had already committed himself, . . . but were informed
by a large measure of discretion.” The Court added, at 746–
747:
There simply is no way in such case for a union to
know whether or not there has been a substantial de-
parture from past practice, and therefore the union may
properly insist that the company negotiate as to the
procedures and criteria for determining such increases.
Similarly, in Garment Workers v. Local 512 v. NLRB, [795
F.2d 705, 711 (1986)], the 9th Circuit rejected an employer’s
contention that certain layoffs were lawful because in accor-
dance with established policy. The court noted that economic
layoffs “would seem to be inherently discretionary” and that
. . . the “long-standing practice” exception suggested in Katz
placed a heavy burden on the employer to show an absence of
employer discretion in determining the size or nature of a uni-
lateral employment change.
Based on the testimony of Respondent’s president, it is ap-
parent that the layoffs at issue in this case—while a feature of
Respondent’s business, and indeed, the construction industry,
and based on considerations beyond Respondent’s control such
as the weather and the progress of other entities in performing
assigned work—involve a significant degree of discretion on
the part of Respondent’s foremen, discretion exercised on an ad
hoc basis in each layoff situation. According to the testimony,
it is the foremen who assess each situation and determine
whether and when to contact Respondent’s office to initiate a
layoff of employees. Respondent bears the cost of work delays
for at least the first day, and pays its employees for showing up
for work that day. The foremen then assess whether the delay

Porta-King Building Systems, 310 NLRB at 543; Adair Standish Corp.,
292 NLRB 890 fn. 1 (1989), enfd. 912 F.2d 854 (6th Cir. 1990); Am-
sterdam Printing & Litho Corp., 223 NLRB 370, 372 (1976), enfd.
mem. 95 LRRM (BNA) 3010 (D.C. Cir. 1977).
10 EIS Brake Parts, 331 NLRB 1466, 1467 (2000).
will likely continue, whether there is other work available, and
ultimately, whether a layoff is economically warranted in a
particular case. That the prospect of incurring significant costs
with no work for employees militate in favor of layoffs—
countervailing considerations include having the employees,
many of whom are skilled and have the right to seek other work
while on layoff, available for upcoming skilled work—makes
the decision more not less amenable to collective bargaining.
Thus, quite apart from the fact that in this case no past practice
with Local 3 can be established, even without that factor I
would not find that Respondent’s decisions to lay off employ-
ees is immune from bargaining. Respondent’s argument is
essentially no different than that considered and rejected by the
Board in Eugene Iovine, Inc., 328 NLRB at 294, with regard to
Iovine’s claim in that case that it was free to unilaterally reduce
employee hours. The Board explained:
[a]s the judge found . . . there was no “reasonable certainly” as
to the timing and criteria for a reduction in employee hours;
rather, the employer’s discretion to decide whether to reduce
employee hours “appears to be unlimited.” The Board and
the courts have consistently held that such discretionary acts
are, as stated by the judge, “precisely the type of action over
which an employer must bargain with a newly-certified Un-
ion.”
In this case, each decision to lay off employees requires
foremen to exercise similar discretion to determine whether a
layoff is warranted. It is precisely the type of employer action
to which the statutory duty to bargain applies.11
Respondent also contends that its policy of unilaterally lay-
ing off employees does not violate the Act because the layoffs
are based on “compelling economic considerations” that ex-
empt Respondent from the duty to bargain over layoffs.
Respondent’s argument, which would appear to apply gener-
ally to the construction industry, is founded on the recognition
in Board cases such as RBE Electronics, 320 NLRB 80 (1995),
and Bottom Line Enterprises, 302 NLRB 373 (1991), that
“there are certain compelling economic considerations that the
Board has long recognized as excusing bargaining entirely
about certain matters.” RBE Electronics, supra at 81. Respon-
dent bears a “heavy burden”12 in making this defense, as “[t]he

11 The record does not reveal whether Iovine’s layoff practice with
Local 363 was based only on contractual agreements between the par-
ties, or also on continuation of the practice during hiatus periods be-
tween contracts. In Courier Journal the practice of unilaterally imple-
menting health insurance program changes was maintained consistently
during hiatus periods between contracts and thus without regard to
whether a contract waiving the right to bargain over the practice was in
effect. Given my rejection of Iovine’s past practice defense on other
grounds, I do not reach the issue of whether a past practice defense
requires a showing that the practice continued after expiration (or in the
absence) of labor agreements and therefore in the absence of a contrac-
tual waiver. See, Register-Guard, 339 NLRB 353, 356 (2003) (em-
ployer’s past changes, “implemented under a contractual provision that
has since expired, do not establish a past practice allowing the [em-
ployer] to implement [without bargaining]”).
12 Broadway Volkswagen, 342 NLRB 1244, 1257 (2004); RBE Elec-
tronics, supra at 81, citing Our Lady of Lourdes Health Center, 306 at
340 fn. 8.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD408
Board has limited its definition of these considerations to ‘ex-
traordinary events which are an unforeseen occurrence, having
a major economic effect [requiring] the company to take imme-
diate action.’” RBE Electronics, supra at 81, quoting Hankins
Lumber Co., 316 NLRB 837, 838 (1995) (Board’s bracketing)
(internal quotations omitted). “Absent a dire financial emer-
gency, the Board has held that economic events such as loss of
significant accounts or contracts, operation at a competitive
disadvantage, or supply shortages do not justify unilateral ac-
tion.” RBE Electronics, supra at 81 (footnotes omitted).
Iovine attempts to jettison the duty to bargain over layoffs
based on the fact, discussed supra, that in the construction in-
dustry the ability to perform work is subject to unpredictable
events such as inclement weather, the failure of other contrac-
tors to timely perform their portion of a construction project,
and the unexpected lack of support services. Because of the
obvious cost to the employer of paying employees for “just
hanging around” (Tr. 70), Respondent’s foremen will order a
layoff of employees if the delay and lack of other work make
the layoff economically warranted. Notably, the 18-month
period spanned by the complaint allegations in this case involve
layoffs occurring on a total of 11 days. As discussed, supra,
there is no evidence that layoffs occurred at all in the initial
years after Local 3 became the bargaining representative, and
the stipulated finding in Eugene Iovine, Inc., 328 NLRB at 296,
297, is that reassignment of employees to other jobsites was a
common alternative to layoffs. Thus, unanticipated interrup-
tions requiring layoffs are not so common that they are occur-
ring every day, or week, month, or even every year.
Respondent’s argument, which if accepted would vitiate the
duty to bargain over layoffs in this case, the construction indus-
try generally, and any other industry where production and
work opportunities are subject to occasional interruption, does
not satisfy the Board’s requirements as discussed in RBE Elec-
tronics. See Mackie Automotive Systems, 336 NLRB at 349
(“Respondent cites no case in support of its proposition that the
reduced demands of an employer’s customer—even its only
customer—permit the employer simply to skip bargaining with
its employees’ collective-bargaining representative and to uni-
laterally change its employees’ terms and conditions of em-
ployment. Thus, we also agree with the judge that the fact that
this unilateral change was prompted by a bona fide scheduling
change implemented by [respondent’s sole customer] does not
excuse the Respondent from its obligation to bargain with the
Union.”).
The layoffs that Respondent feels compelled to undertake
are, by Respondent’s own description, a predictable characteris-
tic of its work environment. The need for any particular layoff
may arise in short order but the general issue can be and is an-
ticipated by Respondent, and is eminently suitable to collective
bargaining. It is not unreasonable to expect Respondent to
bargain in advance for an arrangement that deals generally with
Respondent’s obligations when laying off employees. And
even the specific layoffs, which are undertaken at a foremen’s
discretion, could be delayed for at least some period of time
while Respondent notifies and offers the Union an opportunity
to bargain to impasse over the subject. In this regard, I believe
that under the circumstances of this case, the layoffs at issue
would fit within the situation the Board described in RBE Elec-
tronics, supra at 82, where an employer faced with economic
exigencies that cannot await the achievement of a collective-
bargaining agreement or an overall bargaining impasse, may
satisfy its statutory obligation by providing the union with ade-
quate notice and an opportunity to bargain. Once it does so, the
employer can act unilaterally if the union fails to act promptly
to request bargaining or the parties reach good-faith impasse,
and the Board has recognized that under such circumstances the
bargaining need not be protracted. Id. This exception to the
general duty to reach agreement on a new collective-bargaining
agreement or overall impasse before implementing changes
addresses Respondent’s concerns over unexpected interruptions
of work. But in this case, Respondent does not claim to (and
cannot) rely on this limited exception to the general duty to
bargain as it did not provide the Union with notice of the lay-
offs in time to permit discussion and counterproposals prior to
the implementation of the layoffs. Eugene Iovine, supra at 297.
Notably, the expense to Respondent of delaying layoffs so
that bargaining could occur is described by Respondent as an
expense in wages and benefits, subjects, of course, that are
central to the duty to bargain. A union that could not accom-
modate an employer’s legitimate economically motivated de-
sire to order sudden layoffs might find that the added cost to the
employer would one day be incorporated into a proposal for
wage and benefit reductions. But—based on first principles—
that is not a choice that the Board should make for a union or
employer. One can imagine a union being willing to sacrifice
wages and benefit premiums to ensure full employment for its
members. On the other hand, a union might well (as Local 363
apparently did) seek an agreement that permits the employer
flexibility with regard to layoffs in exchange for other bargain-
ing objectives. But it does not comport with Act’s indifference
toward substantive outcomes of bargaining to remove layoffs
from the ambit of collective bargaining because of the added
wage and benefit costs that employers may incur from having
to take time to bargain over layoffs. Employers and unions can
negotiate a solution to this problem as they do in other areas
relating to wages, hours, and terms and conditions of employ-
ment.
Finally, Respondent also contends that, even if it had a duty
to notify and bargain with Local 3 regarding its decision to lay
off employees, the notice it gave (in those instances where it
provided notification) was adequate under the circumstances
prevailing in its industry. In other words, Respondent contends
that if the circumstances of the construction industry do not
exempt it altogether from bargaining over the decision to lay
off employees, they permit notification as a fait accompli. This
argument misconstrues the point of the statutory duty to bargain
which, as discussed supra, is thwarted by presentation to the
union of a fait accompli on the issue to be bargained. Even
when the Board requires a union to accommodate economic
exigencies faced by an employer and bargain in haste (RBE,
supra at 82), notice after-the-fact is inadequate. As the Seventh
Circuit explained in Advertisers Mfg., supra at 1090:
The rule that requires an employer to negotiate with the union
before changing the working conditions in the bargaining unit
EUGENE IOVINE, INC. 409
is intended to prevent the employer from undermining the un-
ion by taking steps which suggest to the workers that it is
powerless to protect them. . . . Laying off workers works a
dramatic change in their working conditions (to say the least),
and if the company lays them off without consulting with the
union and without having agreed to procedures for layoffs in a
collective-bargaining agreement it sends a dramatic signal of
the union’s impotence.
Acceptance of Respondent’s argument would vitiate the duty
to bargain and in that sense it is a repackaged version of Re-
spondent’s assertion that it has no duty to bargain. I reject the
contention that Respondent’s duty to bargain over layoffs is
limited to a duty to provide the union with a fait accompli for
the same reasons I reject its claim that it has no duty to bargain
over layoffs.
Respondent has violated Section 8(a)(1) and (5) of the Act,
as alleged, by laying off bargaining unit employees without
providing advance notice to the Union to afford it a meaningful
opportunity to bargain over the layoffs.
CONCLUSIONS OF LAW
1. Respondent is, and has been at all material times, an em-
ployer 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. At all times since February 23, 1993, the Union has been
the certified exclusive collective-bargaining representative,
within the meaning of Section 9(a) of the Act, of an appropriate
unit of employees, composed of:
All electricians, electrical maintenance mechanics, helpers,
apprentices and trainees employed in the electrical field who
are employed by employer-members of the United Electrical
Contractors Association, a/k/a United Construction Contrac-
tors Association, but excluding all office clerical employees,
guards and supervisors as defined in the Act.
4. By unilaterally laying off bargaining unit employees with-
out timely notifying the Union and providing a meaningful
opportunity to bargain over the decision to lay off employees
and the effects of the layoffs, Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (5) of the Act.
5. The unfair labor practices committed by Respondent affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Respondent shall be ordered to pro-
vide advance notice to its employees’ bargaining representative
of layoffs undertaken for economic reasons, and upon request,
to bargain over decisions to lay off employees, and to bargain
over the effects of such layoffs, and to the extent it has not
already done so, Respondent shall offer the following employ-
ees and other similarly situated employees immediate rein-
statement to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
William Alleyne John Betancourt Greg Stafford
Hugh Oakley Peter Capasso Lenford Anderson
Leslie Thomas Mike Matone Salvatore DePetro
Anthony Longo Wayne Munyon Clifford Pelzer
Charlie Sarullo Phil Spannagel William Grady
Gary Schulz Ararson Medrano Louis Cordero
Ed Wellington Phil Nola Russell Sausa
Allen Tu Mario Thalassinos John Siano
Jose LaSalle Glen Lillibridge Robert Lock
Edward Shane Richard Zeller Derrick Robinson
Respondent shall be ordered to make whole these employees
and other similarly situated employees for any loss of earnings
or other benefits they may have suffered by reason of the Re-
spondent’s unlawful layoff of employees, to the date of rein-
statement, in the manner prescribed in Ogle Protection Ser-
vices, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
Respondent contends that the remedy in this case for any
violation found should be analogous to the limited back pay
remedy ordered in Transmarine Navigation Corp., 170 NLRB
389 (1968). However, in cases, such as the instant case, involv-
ing a violation of the duty to bargain over the decision to under-
take layoffs, the Board has consistently rejected such argu-
ments. Pan American Grain Co., 343 NLRB 318 (2004) (re-
jecting limited Transmarine remedy for the failure to bargain
over the decision to lay off employees and finding “that the full
backpay and reinstatement remedy is appropriate”);13 Plaston-
ics, Inc., 312 NLRB 1045 (1993) (“The traditional and appro-
priate Board remedy for an unlawful unilateral layoff based on
legitimate economic concerns includes requiring the payment
of full backpay, plus interest, for the duration of the layoff.”);
Lapeer Foundry, 289 NLRB at 955–956; Wilen Mfg., 321
NLRB 1094, 1100 (1996). Respondent’s argument, essentially
that the injury was a delay in receiving notice of the layoffs,
misconceives the violation. As the Board in Porta-King Build-
ing Systems, 310 NLRB 539–540 (1993), explained,
had the Respondent acted lawfully, it would have provided
the Union with an opportunity to bargain before changing
employee terms of employment. An offer to bargain over lay-
offs after they have occurred is no substitute for such prior no-
tice. Once the layoffs have taken place and unit jobs lost, the
union’s position has been seriously undermined and it cannot
engage in the meaningful bargaining that could have occurred

13 The First Circuit Court of Appeals remanded the Board’s remedial
order in NLRB v. Pan American Grain, 432 F.3d 69 (1st Cir. 2005), for
reasons not at issue here. The court agreed that a full backpay remedy
is warranted where the decision to bargain about layoffs is a mandatory
subject of bargaining, but the court sought further explanation of
whether a decision to lay off employees because of the employer’s
modernization project was such a mandatory subject. In the instant
case, Iovine’s decision to lay off employees, which was indisputably
prompted by economic reasons, is a mandatory subject of bargaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD410
if the Respondent had offered to bargain at the time the Act
required it to do so. Indeed, in cases involving unlawful uni-
lateral changes, the Board’s normal remedy is to order resto-
ration of the status quo ante as a means to ensure meaningful
bargaining, and this policy has been approved by the Supreme
Court. Fibreboard Paper Products Corp. v. NLRB, 379 U.S.
203, 216 (1964). Therefore, we find that the Respondent’s of-
fer to bargain about the layoffs after they occurred is insuffi-
cient to “undo the effects of [the violation] of the Act,” NLRB
v. Seven-Up Bottling Co., 344 U.S. 344, 346 (1953), and does
not toll the Respondent’s backpay liability. [Board’s Empha-
sis.]
[Recommended Order omitted from publication.]