Pennsylvania State Corrections Officers Association

National Labor Relations Board - Board Decisions

Aug 26, 2016

364 NLRB No. 108 (N.L.R.B. 2016)

364 NLRB No. 108
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Pennsylvania State Corrections Officers Association
and Business Agents Representing State Union
Employees Association. Cases 04–CA–037648,
04–CA–037649, and 04–CA–037652
August 26, 2016
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On May 23, 2014, Administrative Law Judge Robert
A. Giannasi issued the attached supplemental decision.
The General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief. The
Respondent filed cross-exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,
and conclusions only to the extent consistent with this
Supplemental Decision and Order.
The issue in this compliance case is the amount of
backpay owed as a result of the Respondent’s failure to
bargain with the Union over the effects of its decision to
discharge five employees. Before turning to that ques-
tion, however, we first address the General Counsel’s
May 4, 2016 motion to vacate the Board’s March 23,
2012 Decision and Order in the unfair labor practice case
and to consider de novo the judge’s March 17, 2011 de-
cision.
I. GENERAL COUNSEL’S MOTION
Facts
On March 17, 2011, the judge issued a decision find-
ing, inter alia, that the Respondent violated Section
8(a)(5) and (1) of the Act by failing to bargain over the
effects of its decision to discharge five employees. To
remedy this effects-bargaining violation, the judge’s rec-
ommended Order required the Respondent to engage in
effects bargaining upon the Union’s request, and to pay
backpay pursuant to Transmarine Navigation Corp., 170
NLRB 389 (1968).
The General Counsel filed exceptions regarding the
judge’s dismissal of two other allegations, and the Re-
spondent filed an answering brief to the General Coun-
sel’s exceptions. There were no exceptions to the ef-
fects-bargaining violation or the Transmarine remedy.
On March 23, 2012, the Board issued a Decision and
Order, reported at 358 NLRB 108 (2012), in which it
rejected the General Counsel’s exceptions. The Board
also modified the judge’s order “to conform to the viola-
tions found and to the Board’s standard remedial lan-
guage”, and substituted a “new notice to conform to the
Order as modified.” Id. at 108, fn. 3. However, the
Board did not address the merits of the effects-bargaining
violation or the Transmarine remedy, and its “new no-
tice” did not alter the substance of the judge’s recom-
mended Order and notice. Thereafter, the Respondent
and the Union met for the purpose of engaging in effects
bargaining pursuant to the judge’s Transmarine remedy.
The sufficiency of the parties’ effects bargaining is the
subject of this compliance case and is discussed below.
On May 4, 2016, the General Counsel filed a motion to
vacate the Board’s March 23, 2012 Decision and Order
and to consider de novo the judge’s March 17, 2011 de-
cision. The Respondent did not file a response.
Discussion
The General Counsel’s motion to vacate correctly
states that, at the time the Board issued its March 23,
2012 decision, the composition of the Board included
three persons whose appointments were later determined
to be invalid. See NLRB v. Noel Canning, 134 S.Ct.
2550 (2014). The General Counsel argues that de novo
review of the judge’s March 17, 2011 decision is there-
fore necessary to “obtain a valid Decision and Order on
which to base the Board’s determination concerning the
compliance proceeding.” We do not agree.
The General Counsel’s motion is based upon an appar-
ent misunderstanding of the record. In paragraph 2 of
the motion, the General Counsel states:
2. On April 13, 2011 and April 26, 2011, respectively,
Counsel for the General Counsel and Respondent filed
exceptions to Judge Giannasi’s Decision with the
Board.
However, the Respondent did not file any exceptions; the
document filed by the Respondent on April 26, 2011, was
an answering brief to General Counsel’s exceptions. Thus,
the judge’s finding of an effects-bargaining violation and his
recommended Transmarine remedy were not challenged
before the Board. By failing to file exceptions to the judge’s
decision and recommended Order, the Respondent waived
its right to challenge any of the judge’s findings, conclu-
sions and recommendations, including the finding of an
effects bargaining violation and the related Transmarine
remedy. See 29 USC § 160(c); Section 102.48 of the
Board’s Rules and Regulations.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Moreover, in the 4 years since the issuance of the
Board’s March 23, 2012 decision, the Respondent has
never sought to challenge that decision. Rather, as noted
above, the Respondent and the Union met for the purpose
of engaging in effects bargaining pursuant to the Trans-
marine remedy ordered by the judge. When a dispute
arose regarding the sufficiency of the parties’ effects
bargaining, the Respondent did not contest its obligation
to engage in effects bargaining. Instead, it argued that it
had fulfilled that obligation. (See R. Exh. 4 (the Re-
spondent’s counsel’s bargaining notes); Tr. 14.) Indeed,
in its cross-exceptions and supporting brief in the present
case, filed on July 3, 2014, after the Supreme Court is-
sued its Noel Canning decision, the Respondent relied on
the Board’s March 23, 2012 decision in support of its
arguments to the Board.
In summary, the Respondent did not challenge the
judge’s findings of an effects-bargaining violation or the
related Transmarine remedy, through exceptions to the
Board or otherwise. Moreover, the Respondent does
not—and could not—challenge in this compliance pro-
ceeding either the judge’s March 17, 2011 decision or the
Board’s March 23, 2012 decision.1 Accordingly, in all
the circumstances of this case, we find it unnecessary to
revisit the Board’s March 23, 2012 Decision and Order,
and we deny the General Counsel’s motion.2
II. COMPLIANCE CASE
We now turn to the judge’s May 23, 2014 supple-
mental decision, in which the issue is the amount of
backpay owed as a result of the Respondent’s failure to
bargain with the Union about the effects of its decision to
discharge five employees. The judge found, and we
agree, that the backpay period ran for 26 weeks, from
March 28 to September 28, 2012. We disagree, howev-
er, with the judge’s finding that discriminatee Bill Parke
failed to mitigate his damages. We find that the correc-
tions officer position that Parke declined was not sub-
stantially equivalent to his former position with the Re-
spondent. Therefore, we conclude that all five

1 It is well settled that “[i]ssues litigated and decided in an unfair la-
bor practice proceeding may not be relitigated in the ensuing backpay
proceeding.” Transport Service Co., 314 NLRB 458, 459 (1994); see
also NLRB v. Overseas Motors, Inc., 818 F.2d 517, 519, 520 (6th Cir.
1987); NLRB v. Laredo Packing Co., 730 F.2d 405, 407 (5th Cir.
1984).
2 Although not necessary to our decision, we have reviewed de novo
the judge’s March 17, 2011 decision and the record in the unfair labor
practice case in light of the exceptions and briefs filed in that case. If
the judge’s decision were properly before us, we would adopt it, except
that we would find it unnecessary to rely on the judge’s discussion of
Fresno Bee, 337 NLRB 1161 (2002), or Alan Ritchey, 354 NLRB 628
(2009).
discriminatees are entitled to the full 26-week backpay
award.
A. Backpay Period
Facts
The Respondent represents corrections officers em-
ployed by the Commonwealth of Pennsylvania (the
Commonwealth). Through a unique arrangement with
the Commonwealth, the Respondent employs some of
those corrections officers as its business agents. While
employed by the Respondent, those individuals take a
leave of absence from the Commonwealth but continue
to accrue leave and pension credits and to draw a portion
of their salary, for which the Respondent reimburses the
Commonwealth. At the end of their employment with
the Respondent, they have an automatic right of rein-
statement to their former jobs as corrections officers with
the Commonwealth.
Since July 21, 2010, Business Agents Representing
State Union Employees Association (the Union) has rep-
resented the Respondent’s business agents and support
staff. On August 20, 2010, the Respondent discharged
business agents Lee Dyches, Shawn Hood, Patricia Hurd,
John Miller, and Parke, and the Respondent directed
them to return to their former positions as corrections
officers. Dyches, Hood, Hurd, and Miller complied with
this directive; Parke did not. Thereafter, the Union filed
a charge alleging, inter alia, that the Respondent violated
Section 8(a)(5) and (1) by failing to bargain over the ef-
fects of the discharges. On March 17, 2011, the judge
issued a decision finding the effects-bargaining violation
and recommending a limited backpay remedy pursuant to
Transmarine Navigation Corp., 170 NLRB 389 (1968).
In January 2012, the Respondent’s employees filed a
petition to decertify the Union. The Region dismissed
the petition on March 7, 2012.
On April 4, 2012, the Respondent and the Union met
and engaged in effects bargaining. The Respondent pro-
posed bargaining about the Board’s Transmarine
backpay remedy. The Respondent’s counsel’s bargain-
ing notes reflect that he told the Union’s president the
following: “[W]e were going to bargain over the effects
of removing the business agents, which included a re-
view of the two week backpay remedy the Administrative
Law Judge suggested in this matter.” (R. Exh. 4 (empha-
sis added).) The Respondent gave the Union documents
“establishing what the backpay amount would be for the
five removed business agents for a two week period im-
mediately following their removal.” (Id. (emphasis add-
ed).) The Respondent offered the Union 2 weeks’
backpay without deductions for interim earnings. The
Respondent stated, however, that it would deduct 1
PENNSYLVANIA STATE CORRECTIONS OFFICERS ASSN. 3
week’s severance pay that it had already paid the em-
ployees, and that it would treat the remaining 1 week’s
pay as a credit against damages it hoped to recover in
future lawsuits against Dyches, Hood, Hurd, and Miller
alleging fraudulent mileage reimbursements.3 In an
April 4, 2012 letter to the Union, the Respondent charac-
terized its offer as “backpay . . . for a 2-week period”
with 1 week’s pay deducted because it had previously
been provided and the other 1 week’s pay treated as a
credit in future lawsuits. (Jt. Exh. 1; see also R. Exh. 4.)
On April 10, 2012, the Union mailed the Respondent a
counteroffer for Dyches, Hurd, Miller, and Parke of 2
weeks’ severance pay and payment for all unused leave.
The counteroffer for Hood was 2 weeks’ severance pay,
70 vacation days, unpaid phone charges, and 6 weeks’
mileage reimbursements.
On April 11, 2012, the Respondent rejected the Un-
ion’s counteroffer, declared impasse, and stated that it
would implement its April 4, 2012 offer as its final offer.
The parties did not engage in any further effects bargain-
ing, and the Respondent never paid any backpay to the
discriminatees, pursuant to the Transmarine remedy.
Thereafter, the Regional Director issued a compliance
specification. After a hearing, the judge issued a sup-
plemental decision finding that none of the conditions
specified in the Transmarine remedy had occurred, and
that the backpay period ran from March 28 to September
28, 2012, the approximate date on which the Union be-
came defunct and was no longer available to bargain.
The judge rejected the Respondent’s contentions that the
backpay period ended either on April 11, 2012, due to
the parties’ impasse, or some time prior to September 28,
2012, due to the Region’s refusal to process the decertifi-
cation petition. The Respondent excepts, raising similar
arguments to those rejected by the judge.
Discussion
For the reasons stated by the judge and for the addi-
tional reasons discussed below, we affirm the judge’s
finding that the backpay period ran for 26 weeks, from
March 28 to September 28, 2012.4

3 The Respondent later sued Dyches, Hurd, and Miller. Those law-
suits are still pending.
4 Because we have denied the General Counsel’s motion to vacate
the Board’s March 23, 2012 Decision and Order, we find it unnecessary
to address our dissenting colleague’s contention that if the Board were
to issue a new Decision and Order adopting the judge’s March 17, 2011
decision, the requirement that the Respondent engage in effects bar-
gaining would commence with that decision. Additionally, we note
that no party excepted to the judge’s finding that the Transmarine
backpay period began on March 28, 2012, and therefore, any challenge
to the judge’s finding has been waived. The only issue before the
Board is whether the backpay period ended before September 28, 2012.
First, we affirm the judge’s finding that the parties’
April 11, 2012 impasse was not a lawful impasse and
therefore did not toll the backpay period.
5
As a prelimi-
nary matter, we agree with our dissenting colleague that,
under Transmarine, an employer that has failed to en-
gage in effects bargaining is ordered to do two things: (1)
“bargain over the effects” of the underlying unlawful
decision, and (2) give affected employees “limited
backpay” for a period beginning 5 days after the date of
the Board’s Order and ending at the earliest occurrence
of several conditions, including when effects bargaining
results in an “agreement” or a “bona fide impasse,” pro-
vided that the backpay shall be no less than what “em-
ployees would have earned for a 2-week period.”
Transmarine, 170 NLRB at 390. The dissent accuses us
of conflating these two separate requirements. However,
contrary to the dissent, it was the Respondent who con-
flated the requirements by proposing during effects bar-
gaining that the parties bargain about the Transmarine
backpay remedy and by insisting to impasse on its offer
to the Union of “backpay . . . for a 2-week period” with 1
week’s pay deducted because it had previously been pro-
vided and the other 1 week’s pay treated as a credit in
future lawsuits.6 (Jt. Exh. 1; see also R. Exh. 4.)
The purpose of Transmarine backpay is “to restore at
least some economic inducement for an employer to bar-
gain as the law requires.” O. L. Willis, Inc., 278 NLRB
203, 205 (1986). “It provides that if there are delays in
the bargaining process, backpay increases until one of
the stated conditions is met, thereby insuring that the
consequences to the respondent are progressively greater
and that there is a corresponding enhancement of the
union’s bargaining strength.” Sawyer of Napa, Inc., 321
NLRB 1120, 1120 (1996). Permitting a party to bargain
to impasse about Transmarine backpay would defeat the
purpose of the remedy. Thus, whatever the parties agree
to in effects bargaining is paid to the discriminatees in
addition to Transmarine backpay.7 Here, from the out-
set, the Respondent proposed reducing the Transmarine
amount, insisting to impasse on its offer of 2 weeks’

5 The dissent asserts that “it is improper for the Board to gloss over
the fact that the General Counsel and the Respondent stipulated that a
bargaining impasse existed on April 11” and that our determination that
the April 11, 2012 impasse was unlawful is “[e]ven more troubling.”
We reject those assertions. The parties’ factual stipulation that the
Respondent declared impasse on April 11, 2012, is separate and distinct
from the legal question whether that impasse was lawful.
6 The dissent characterizes the Respondent’s offer as a “severance
pay proposal.” Contrary to the dissent, the record clearly demonstrates
that the Respondent made a backpay proposal.
7 An example helps illustrate this principle. At the end of 3 weeks
of effects bargaining pursuant to Transmarine, a union and a respond-
ent agree to 1 week’s severance pay. The discriminatees will receive 1
week’s severance pay and 3 weeks’ Transmarine backpay.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
backpay with 1 week’s pay deducted because it had al-
ready been paid to the discriminatees and with the re-
maining 1 week’s pay treated as a credit in future law-
suits. The Respondent never made a proposal that met
its effects-bargaining obligation. Therefore, we agree
with the judge that the parties’ April 11, 2012 impasse
was not a lawful impasse.
Furthermore, even if the Respondent was permitted to
bargain over the Board’s Transmarine backpay remedy,
the Respondent’s insistence to impasse on treating 1
week of Transmarine backpay as a credit against an an-
ticipated recovery in a future lawsuit was impermissible.
The Respondent in effect demanded a modification of the
Transmarine remedy, which requires the Respondent to
pay employees a minimum of 2 weeks’ backpay minus
only interim earnings. See Sawyer of Napa, Inc., 321
NLRB 1120, 1120–1121 (1996) (finding “no legally
cognizable impasse” and explaining, “[w]e are not, as
asserted by our dissenting colleague, finding that the
Respondent was required to adopt any particular position
during effects bargaining. The Respondent was free to
take any position it wished with respect to such bargain-
ing. However . . . the Respondent was not free to modify
[the Transmarine remedy] terms . . . .”).
8
Further, the
Respondent’s 1-week’s credit for future lawsuits cannot
be categorized as interim earnings, and thus cannot be
deducted from the 2-week minimum backpay award. A
party cannot withhold backpay simply because it might
recover that amount in a private lawsuit. See The State
Journal, 238 NLRB 388, 388 and fn. 5 (1978), citing
Teamsters Local 705 (Randolph Paper Co.), 227 NLRB
694, 694-695 (1977) (finding that the respondent was not
permitted to offset backpay by the amount of its private
claim against the discriminatee for unpaid dues because
the respondent’s claim “involves a private debt which is
irrelevant to these backpay proceedings”). In sum, in the
effects bargaining, the Respondent was not entitled to
demand that the Transmarine remedy be reduced from 2
weeks of backpay to 1 by claiming the second week as a
credit against damages it hoped to recover in future law-
suits.
Second, we affirm the judge’s finding that the Re-
gion’s failure to process the decertification petition does
not warrant terminating the backpay period prior to Sep-

8 Therefore, there is no merit to the dissent’s claim that “the Board
cannot find a violation here based on a purported renegotiation of the
Board-ordered Transmarine limited backpay award.”
We do not, however, rely on the judge’s statement that the Respond-
ent’s plan to deduct severance pay was contrary to the minimum
backpay award. The General Counsel appears to agree that this was a
proper deduction because he listed this payment as interim earnings in
the compliance specification.
tember 28, 2012. Contrary to the Respondent’s asser-
tion, the Region properly refused to process the petition.
As noted by the judge, the petition could not have been
reinstated until after the Respondent remedied its viola-
tions.
9
Furthermore, as recognized by the judge, the Un-
ion remained the bargaining representative because no
election was ever held. The filing of a decertification
petition itself has no effect on a union’s bargaining sta-
tus. See Levitz Furniture Co. of the Pacific, 333 NLRB
717, 727 (2001) (“[T]he union remains the bargaining
representative, and the employer’s bargaining obligation
continues, while the RM (or RD) election proceedings
are underway.”). Therefore, we affirm the judge’s con-
clusion that the backpay period ran from March 28 to
September 28, 2012.
B. Bill Parke
Facts
Prior to May 2002, Parke was a corrections officer at
the State Correctional Institute in Houtzdale, Pennsylva-
nia. He worked 40 hours per week and earned $2630
biweekly. His job duties involved the care, custody, and
control of inmates.
In May 2002, the Respondent hired Parke as its assis-
tant grievance manager in Harrisburg, Pennsylvania. He
worked 50–60 hours per week and earned $3580 biweek-
ly. His job duties involved enforcing the collective-
bargaining agreement between the Respondent and the
Commonwealth. To be closer to his job, he moved to
Mechanicsburg, Pennsylvania. He later adopted two
special needs children.
On August 20, 2010, the Respondent discharged Parke
and the other four discriminatees and directed them to
return to their former positions as Commonwealth cor-
rections officers. Parke requested an 8-week leave of
absence from the Commonwealth in order to move back
to Houtzdale and to arrange for his children’s school and
services transfer. The Commonwealth granted Parke
only a 2-week leave of absence. Parke did not return to
his former position. Instead, he voluntarily retired and
subsequently obtained employment in another industry.

9 Therefore, we do not rely on the judge’s statement that the petition
was not promptly acted upon by the Region.
Additionally, despite receiving notice from the Region that their
dismissed petition was subject to reinstatement, if appropriate, upon
conclusion of the unfair labor practice proceedings and subsequently
receiving a copy of the March 2012 Decision and Order in the unfair
labor practice case, the employees never requested that the Region
reinstate the petition. See Nu-Aimco, Inc., 306 NLRB 978, 979 (1992)
(noting that “the policy of dismissing a petition or holding it in abey-
ance because of pending unresolved unfair labor practice charges . . . .
postpones processing the petition until the unfair labor practice charges
are resolved, at which time the petitioner is entitled to request rein-
statement of the petition.”).
PENNSYLVANIA STATE CORRECTIONS OFFICERS ASSN. 5
Pursuant to the parties’ collective-bargaining agree-
ment and past practice, Parke was entitled to, but did not,
request a transfer to a corrections facility closer to his
home in Mechanicsburg. Parke testified that he knew
that he had the right to request a transfer and that there
was a corrections facility approximately 12 miles from
his home.
In his supplemental decision, the judge found that
Parke failed to mitigate his damages because he “‘will-
fully incurred’ a loss by his ‘clearly unjustified’ refusal
to return to his former employment” as a Commonwealth
corrections officer, citing St. George Warehouse, 351
NLRB 961, 963 (2007). The judge determined that the
Commonwealth corrections officer position was “intrin-
sically intertwined” with Parke’s assistant grievance
manager position, and that overlooking these ties would
provide Parke with an undeserved windfall. The General
Counsel excepts, arguing that Parke did not fail to miti-
gate because the two jobs were not substantially equiva-
lent.
Discussion
We agree with the General Counsel that the Com-
monwealth corrections officer position Parke declined
was not substantially equivalent to his assistant grievance
manager position with the Respondent. Therefore, we
find that Parke is entitled to the full 26-week backpay
award.
Discriminatees are required to engage in reasonable ef-
forts to find substantially equivalent interim employ-
ment. See Alamo Cement Co., 298 NLRB 638, 638 fn. 2
(1990); Minette Mills, 316 NLRB 1009, 1010 (1995). To
determine whether interim employment is substantially
equivalent to a discriminatee’s former employment, the
Board compares various criteria, such as pay, working
conditions, job duties, commutes, and work locations.
Here, we find that Parke’s position as Assistant Griev-
ance Manager with the Respondent and the Common-
wealth corrections officer position differed in pay, work-
ing conditions, and job duties. Parke earned almost
$1000 less biweekly as a corrections officer than he did
as assistant grievance manager, a 25 percent difference in
pay. Compare Arlington Hotel Co., 287 NLRB 851, 854
(1987), enf. denied on other grounds 876 F.2d 678 (8th
Cir. 1989) (finding that a job that paid 25 percent less
was not substantially equivalent). The positions also had
different job duties and working conditions. Parke’s job
with the Respondent was wholly an office job; he en-
forced the collective-bargaining agreement. By contrast,
Parke’s corrections officer job with the Commonwealth
was an active job that involved the care, custody, and
control of prison inmates. Compare Lord Jim’s, 277
NLRB 1514, 1516 (1986) (finding that busboy/bathroom
cleaner job was not substantially equivalent to cocktail
waitress job); Lundy Packing Co., 286 NLRB 141, 144
(1987), enfd. 856 F.2d 627 (4th Cir. 1988) (holding that
discriminatees are not required to accept interim em-
ployment with lower wages and less desirable working
conditions). Without question, the corrections officer
and assistant grievance manager positions were not sub-
stantially equivalent, and we therefore find that Parke did
not fail to mitigate by declining to return to his correc-
tions officer job.
ORDER
The National Labor Relations Board orders that the
Respondent, Pennsylvania State Corrections Officers
Association, Harrisburg, Pennsylvania, its officers,
agents, successors, and assigns, shall pay the claimants
the amounts specified after their names below, plus in-
terest accrued to the date of payment, as prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010), minus tax withholdings as required
by Federal and State laws.
Lee Dyches $9,646.25
Shawn Hood 3,235.89
Patricia Hurd 11,755.23
John Miller 8,243.08
Bill Parke $24,332.27
Dated, Washington, D.C. August 26, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
This case arises from the lawful discharge of five em-
ployees. However, the Respondent did not satisfy its
obligation to bargain over the effects of its decision to
discharge these employees, and its failure in this regard
violated Section 8(a)(5) of the National Labor Relations
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act (NLRA or the Act).1 The matter currently before the
Board concerns the remedy for this “effects-bargaining”
violation. Under longstanding case law, the remedies for
an effects-bargaining violation are more limited than the
remedies ordered when the underlying decision is unlaw-
ful.
As my colleagues correctly note, when a party unlaw-
fully fails to bargain over the effects of a lawful decision,
the backpay remedy is a limited one, as set forth in a case
decided nearly 50 years ago, Transmarine Navigation
Corp., 170 NLRB 389 (1968). Under Transmarine, the
party that has failed to engage in required effects bar-
gaining is ordered to do two things: (i) to “bargain over
the effects” of the underlying lawful decision; and (ii) to
give affected employees “limited backpay” for a period
ending when effects bargaining results in “agreement” or
a “bona fide impasse” (whichever occurs first), provided
that the backpay shall be no less than what “employees
would have earned for a 2-week period.” Transmarine,
170 NLRB at 390.2
In the circumstances presented here, I believe the par-
ties may have been unclear regarding what was being
addressed in effects bargaining. But my colleagues and
the judge are better informed regarding what the Board’s
effects-bargaining order required and what occurred in
bargaining, and I believe the majority has devised a rem-
edy that conflates two separate things: (i) the Transma-
rine backpay remedy, which the Board controls, and
(ii) Board-ordered effects bargaining, the substance of
which the parties control. The result is a remedy that is
contrary to Section 8(d) of the Act, which precludes the
Board from imposing substantive terms on parties in bar-
gaining, and that exceeds the scope of the Board’s reme-
dial powers under Section 10(c) of the Act, which pre-
cludes the Board from imposing penalties on parties be-
cause the Board disapproves of the parties’ lawful pro-

1 See, e.g., First National Maintenance Corp. v. NLRB, 452 U.S.
666, 681 (1981) (although a particular decision is not a mandatory
subject of bargaining, “bargaining over the effects of a decision must be
conducted in a meaningful manner and at a meaningful time”).
2 The Transmarine remedy is based on a recognition that where an
employer has already carried out layoffs or discharges, the union may
no longer have leverage in bargaining over the effects of those actions,
so that a bare order requiring the employer to engage in effects bargain-
ing may fail to “assure meaningful bargaining.” Thus, to “recreate in
some practicable manner a situation in which the parties’ bargaining
position is not entirely devoid of economic consequences for the [em-
ployer],” the Board in Transmarine provided “a limited backpay re-
quirement,” under which, beginning 5 days from the date of the
Board’s order, the employer must pay the former employees affected
by its decision “at the rate of their normal wages when last in the [em-
ployer’s] employ . . . until the occurrence of the earliest” of several
alternative conditions, one of which is “a bona fide impasse in bargain-
ing”—the condition that occurred in the instant case—but in no event
less than 2 weeks’ wages. Transmarine, 170 NLRB at 390.
posals. Accordingly, I respectfully dissent from the
backpay obligation formulated by my colleagues in this
case.3
Discussion
I believe the Respondent complied with the judge’s
March 17, 2011 effects-bargaining order. In my view,
my colleagues’ decision reflects a misunderstanding of
the record, and more importantly, I believe my col-
leagues misunderstand the distinction between Board-
ordered bargaining, on the one hand, and Board-ordered
backpay, on the other.
First, my colleagues fail to acknowledge that the judge
required the Respondent to engage in effects bargaining
and that the Respondent complied with that order. In
effects bargaining, the Respondent formulated a lawful
severance pay proposal. One aspect of that proposal was
that 1 week’s severance pay would be held back pending
resolution of a dispute between the Respondent and the
discharged employees concerning mileage reimburse-
ments the employees might be required to repay to the
Respondent.4
Severance pay (including details regarding amount,
timing of payment, and potential deductions or offsets) is
a mandatory subject of bargaining, about which both the
employer and union may insist to impasse.5 There is no

3 Because I would find that Respondent owes no more than 2
weeks’ backpay to the affected employees, including former employee
Bill Parke, I do not reach or pass on whether Parke failed to mitigate
Respondent’s backpay liability during the longer backpay period im-
posed by my colleagues.
For the reasons stated by my colleagues, I join in the denial of the
General Counsel’s motion to vacate the Board’s March 23, 2012 Deci-
sion and Order and to consider de novo the judge’s March 17, 2011
decision. Unlike my colleagues, however, I have not reviewed de novo
the judge’s March 17, 2011 decision, and I express no views as to
whether I would or would not adopt the judge’s decision if it were
properly before the Board. I note, however, that the judge’s March 17,
2011 decision included an order requiring the Respondent to engage in
effects bargaining, and if the Board were to issue a decision and order
adopting the judge’s March 17, 2011 decision, the Respondent would
be entitled to an opportunity to comply with that order by engaging in
the ordered effects bargaining, and the issue addressed in today’s sup-
plemental decision—whether the Respondent complied, past tense, with
the judge’s March 17, 2011 effects-bargaining order would be moot.
4 The judge described Respondent’s effects-bargaining proposal as
follows: “It offered to pay the claimants 2 weeks’ pay without deduc-
tions for interim earnings, less 1 week’s pay claimants received at the
time of their discharge for time they did not work for Respondent.
Those amounts would then, according to Respondent, be considered a
credit against monies allegedly received by claimants for improper
mileage reimbursements during their employment. Respondent has
sued for the return of such mileage reimbursements in civil lawsuits
against Claimants Dyches, Hurd and Miller. Those lawsuits are still
pending.” Judge’s decision, infra, slip op. at 11.
5 See Champion International Corp., 339 NLRB 672, 688 (2003);
Your Host, Inc., 315 NLRB 295 (1994); Waddell Engineering Co., 305
NLRB 279 (1991).
PENNSYLVANIA STATE CORRECTIONS OFFICERS ASSN. 7
claim that effects bargaining failed to commence in a
timely manner, nor is it alleged that the Respondent
failed to bargain in good faith. The sole criticism levied
by the judge and my colleagues relates to the substance
of Respondent’s severance pay proposal. However, the
Board is prohibited from dictating the substance of bar-
gaining. Section 8(d) states that the obligation “to bar-
gain collectively” requires parties “to meet at reasonable
times and confer in good faith,” but “such obligation
does not compel either party to agree to a proposal or
require the making of a concession.” And in H. K. Por-
ter Co. v. NLRB, 397 U.S. 99 (1970), the Supreme Court
held that the Board’s remedial powers do not include a
power to dictate any substantive term of an agreement:
It is implicit in the entire structure of the Act that the
Board acts to oversee and referee the process of collec-
tive bargaining, leaving the results of the contest to the
bargaining strengths of the parties. . . . The Board’s
remedial powers under § 10 of the Act are broad, but
they are limited to carrying out the policies of the Act
itself. One of these fundamental policies is freedom of
contract. While the parties’ freedom of contract is not
absolute under the Act, allowing the Board to compel
agreement when the parties themselves are unable to
agree would violate the fundamental premise on which
the Act is based—private bargaining under govern-
mental supervision of the procedure alone, without any
official compulsion over the actual terms of the con-
tract.
Id. at 107–108 (emphasis added); see also NLRB v. Insur-
ance Agents, 361 U.S. 477, 488 (1960) (“Congress intended
that the parties should have wide latitude in their negotia-
tions, unrestricted by any governmental power to regulate
the substantive solution of their differences.”).
My colleagues—like the judge—confuse the remedies
the judge ordered here (that Respondent engage in effects
bargaining and provide a limited backpay remedy con-
sistent with Transmarine, supra) with the substance of
the Respondent’s effects-bargaining proposal regarding
severance pay (including amounts, deductions, and an
offset pending resolution of a dispute over mileage reim-
bursements). The Board has authority to require the Re-
spondent to engage in effects bargaining, and the Board
also has the authority to impose a Transmarine limited
backpay award. However, my colleagues mistakenly
conflate the two, and they improperly regard the Re-
spondent’s effects-bargaining proposal—the substance of
which the Board cannot lawfully dictate—as an effort to
negotiate or renegotiate the Transmarine backpay reme-
dy.
The Transmarine backpay period started running on
March 28, 2012.6 Under Transmarine, the “limited
backpay” period ends when the parties reach an agree-
ment or impasse, whichever occurs first, with the further
caveat that Board-ordered backpay will not be less than 2
weeks’ pay. The Respondent and the Union commenced
effects bargaining on April 4. And the General Counsel
and Respondent stipulated that “[o]n April 11, PSCOA
and [the Union] reached an impasse in bargaining.”7 A
total of 14 days elapsed from March 28 (when the
Transmarine backpay period commenced) to April 11
(when, as stipulated, bargaining reached an impasse).
Therefore, consistent with the Board’s “limited backpay”
award and Transmarine, the Respondent owes the affect-
ed employees 14 days’ backpay, which also happens to
equal the 2-week minimum backpay period.
However, instead of ordering the Respondent to pay
the affected employees 2 weeks’ backpay, my colleagues
find that the Respondent owes those employees 26
weeks’ backpay. They extend the backpay period
through September 28, the approximate date on which
the Union became defunct and was no longer available to
bargain. My colleagues do not dispute that under
Transmarine, the “limited backpay” period ends when
effects bargaining reaches impasse, and they
acknowledge that the General Counsel and the Respond-
ent stipulated that an impasse was reached on April 11.
They find, however, that the stipulated impasse was not a
lawful impasse, on the basis that the Respondent, in ef-
fects bargaining, was required to offer the Union at least
the Transmarine minimum backpay remedy—i.e., 2
weeks’ pay—and failed to do so. My colleagues espe-
cially denounce the Respondent’s proposal to defer a
portion of severance pay pending the resolution of dis-
puted mileage reimbursements that the employees might
be required to repay. Based on this proposal, my col-
leagues find that Respondent’s effects-bargaining pro-
posals were “contrary to the Transmarine remedy, which
requires the Respondent to pay employees a minimum of
2 weeks’ backpay minus only interim earnings.”
I respectfully disagree with my colleagues’ analysis.
Preliminarily, I believe it is improper for the Board to
gloss over the fact that the General Counsel and the Re-
spondent stipulated that a bargaining impasse existed on
April 11, when all parties to the stipulation—especially

6 The judge issued his recommended decision and order on March
17, 2011, which was affirmed on March 23, 2012. Consistent with
Transmarine, the backpay period commenced running 5 days after
March 23, or March 28, 2012. (Unless otherwise indicated, all other
dates referenced in this opinion occurred in 2012.)
7 Stipulation of Facts filed by the General Counsel and Respondent,
dated April 14, 2014 (admitted as Jt. Exh. 7).
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the General Counsel—must have understood the legal
effect of that stipulation under Transmarine, i.e., that the
backpay period terminated on April 11. Even more trou-
bling, however, is the majority’s determination that the
April 11 impasse was unlawful. As noted previously, I
believe that my colleagues confuse the remedies imposed
here (requiring the Respondent to engage in effects bar-
gaining and provide a minimum of 2 weeks’ backpay)
with the substance of the Respondent’s proposals in ef-
fects bargaining.
In my opinion, the majority’s finding that the Re-
spondent’s effects-bargaining proposal was “contrary” to
the Transmarine limited backpay remedy is based on the
false premise that Board-ordered backpay under Trans-
marine enters into Board-ordered effects bargaining and
limits the substantive proposals that may be put forward
by either party. These two components of a Transmarine
remedy are clearly distinct. One component is the re-
quirement that the parties engage in effects bargaining, as
to which Section 8(d) prohibits the Board from dictating
substantive terms or proposals. The other component is
the Transmarine “limited backpay” remedy, which is not
subject to negotiation between the parties but rather is
imposed by the Board, and which is separate from the
parties’ substantive proposals in effects bargaining. That
remedy is dictated by the terms set forth in Transmarine,
under which the running of the “limited backpay” period
terminates when the parties reach agreement or impasse
(whichever comes first), provided that employees receive
a minimum of 2 weeks’ backpay.
Therefore, contrary to my colleagues’ conclusion that
the Transmarine remedy required the Respondent, in
effects bargaining, to offer the Union a minimum of 2
weeks’ pay, the Board lacks the authority to impose any
minimum requirement regarding the substance of a par-
ty’s bargaining proposals. As the Supreme Court stated
in NLRB v. Insurance Agents, supra, “Congress intended
that the parties should have wide latitude in their negotia-
tions, unrestricted by any governmental power to regu-
late the substantive solution of their differences.” See
also Section 8(d), supra; H. K. Porter, supra. In collec-
tive bargaining, including Board-ordered effects bargain-
ing, parties are free to advance whatever position they
wish, subject to narrow limitations not at issue in the
instant case.8 Nor does anything in Transmarine pre-

8 Parties are forbidden to bargain for an illegal subject. For exam-
ple, a party may not bargain for a contract clause permitting an em-
ployer or union to discriminate on an unlawful basis, such as race or
sex. See, e.g., Independent Metal Workers (Hughes Tool Co.), 147
NLRB 1573 (1964). Here, there is no allegation that the Respondent’s
effects-bargaining proposals involved actions that would have violated
State or Federal law. Nor is there any reasonable basis for concluding
that Respondent’s pay proposal involved a permissive subject of bar-
clude a party from including in its offer proposals such as
those formulated by the Respondent, including a pro-
posal to defer a portion of severance pay based on
amounts that the Respondent believed it was entitled to
recover from the discharged employees. These issues are
grist for the mill of lawful effects bargaining, and they
are especially appropriate subjects when the employer,
the union and affected employees may wish to resolve all
financial issues that exist in relation to lawful termina-
tions of the employment relationship, like those at issue
in the instant case.
The record evidence suggests that the parties them-
selves were unclear regarding what was being addressed
in effects bargaining and what was encompassed by the
Respondent’s effects-bargaining proposal. However,
there is no question that effects bargaining took place
consistent with the judge’s order, and I believe the Board
cannot find a violation here based on a purported renego-
tiation of the Board-ordered Transmarine limited
backpay award. For starters, the Board’s remedial order
did not authorize or direct the Respondent to bargain
over the Transmarine backpay remedy.9 The Board re-
mains responsible for enforcement of the Transmarine
backpay remedy, regardless of whether or not one party
or the other may have believed the remedy could itself be
the subject of effects bargaining, so there is no risk that
bargaining could have compromised the minimum
backpay period prescribed in the effects-bargaining or-
der.

gaining that cannot lawfully be insisted upon to impasse. See NLRB v.
Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349 (1958);
supra fn. 5.
9 The order directed the Respondent, “[o]n request,” to “bargain
with BARSUEA [the Union] with respect to the effects of its decision
to discharge Business Agents Lee Dyches, Shawn Hood, Patricia Hurd,
John Miller, and Bill Parke.” 358 NLRB No. 19, slip op. at 1. By
comparison, the Transmarine backpay order directed the Respondent to
“[p]ay its discharged business agents . . . their normal wages for the
period set forth in the remedy section of the judge’s decision.” Id. The
judge’s decision, in turn, directed the Respondent to pay the affected
employees “backpay at their normal wages from 5 days after the date of
this order until the earliest of . . . (1) the date Respondent bargains to
agreement as to the effects of the discharges” or “(2) a bona fide im-
passe in bargaining. . . .” Id., slip op. at 8. Obviously, nothing in these
remedial requirements suggests the Board-ordered backpay remedy was
to be a subject in effects bargaining.
It appears that the Respondent misunderstood the judge’s order as
setting the minimum amount of Transmarine backpay as an appropriate
starting point for an effects-bargaining proposal. However, the Union
was free to reject that offer—which it did, making a counteroffer—and
the Respondent never took the position that the judge’s “suggestion”
placed a 2-weeks’-pay ceiling on the amount of severance pay it could
be required to furnish under any agreement reached in good-faith ef-
fects bargaining. As noted in the text below, the record also reveals
that the Union regarded the Respondent’s effects-bargaining proposal
as involving severance pay, not as an attempt to negotiate the minimum
Transmarine backpay period.
PENNSYLVANIA STATE CORRECTIONS OFFICERS ASSN. 9
Moreover, the Respondent’s severance pay proposal in
effects bargaining differed from the Board’s Transma-
rine backpay remedy in two respects. First, the Trans-
marine backpay order provided that “net interim earn-
ings” would be deducted from the gross amount of
backpay owing to the five employees.10 In contrast, Re-
spondent’s effects-bargaining proposal offered the af-
fected employees “two weeks pay without deductions for
interim earnings.” Second, the Respondent in effects
bargaining offered 2 weeks’ pay (with the setoff and
holdback described above in fn. 5) at a time when no-
body knew or could have known when bargaining might
result in an agreement or impasse. In contrast, the
Transmarine backpay order provided for an indefinite
amount of backpay, with the accrual of backpay com-
mencing March 28, 2012, and continuing until effects
bargaining resulted in an agreement or an impasse,
whichever occurred sooner. Finally, my colleagues’
finding that the Respondent in effects bargaining did
nothing more than attempt to negotiate downward the
Board-ordered backpay remedy is negated by the General
Counsel’s stipulation that the Respondent and the Union
reached an impasse in effects bargaining. A bargaining
impasse presumes good-faith bargaining.
It also appears clear that the Union understood that Re-
spondent’s effects-bargaining proposals were separate
and independent from the Board-imposed Transmarine
“limited backpay” award. After the Respondent trans-
mitted its offer,11 the Union formulated a counterpro-
posal. The judge described the Union’s counterproposal
and subsequent bargaining as follows:
Union Vice President Lawrence Blackwell mailed a
counteroffer to Respondent on April 10, 2012. The
counteroffer was as follows: 2 weeks’ severance pay
and all unused vacation or leave paid back for Dyches,
Hurd, Miller, and Parke; and 2 weeks’ severance pay,
70 vacation days, unpaid phone charges and 6 weeks’
of mileage reimbursement for Hood. Blackwell also
rejected the set off for mileage reimbursement because
he contended that there was no proof that it was inval-
idly claimed. On April 11, 2012, Respondent rejected
the Union's counteroffer, giving reasons in support of
its position. It also stated that impasse in bargaining
had occurred. The parties stipulated that Respondent
and the Union reached an impasse on April 11, 2012.

10 The judge’s order provided that “[a]ny backpay owing, less any
net interim earnings, shall be computed . . . with interest . . . com-
pounded daily. . .” (emphasis added).
11 The Respondent’s effects-bargaining offer was extended in writ-
ing, and the judge’s description of Respondent’s offer is quoted in fn. 4,
supra.
Judge’s decision, infra, slip op. at 11 (emphasis added).
Thus, the Union opposed the Respondent’s setoff proposal
on its merits, not on the basis that was inconsistent with
Transmarine. Again, this is the type of bargaining conduct
that is contemplated in Board-ordered effects bargaining,
and Section 8(d) prohibits the Board from requiring anyone
to include any particular substantive terms in its proposals.
Finally, regardless of whatever confusion may have
existed between the parties regarding precisely what was
being addressed in effects bargaining, I believe the
Board’s finding that the parties’ effects bargaining was
deficient requires that they pass on the substance of the
Respondent’s proposals, which is precluded under Sec-
tion 8(d) of the Act.
On the other hand, as stated above, the Board does
have the authority to impose on the Respondent the
Transmarine limited backpay obligation. The Transma-
rine backpay period commenced running on March 28
and ended 14 days later on April 11—the date when bar-
gaining reached an impasse, as stipulated—making it
appropriate for the Board to require the Respondent to
provide backpay to the five affected employees for a
period of 14 days, or 2 weeks.12
For the reasons explained above, I do not believe the
Board can properly find that Respondent’s lawful con-
duct during ordered effects bargaining warrants a Trans-
marine “limited backpay” award that exceeds 2 weeks.
Therefore, I believe the majority’s backpay award, span-
ning an additional 24 weeks, is effectively a fine. Not
only is such a penalty proscribed by Section 8(d)—since
it results from the Board’s disapproval of the substance
of Respondent’s lawful effects-bargaining proposals—it
is also improper because nonremedial penalties have
long been held to exceed the scope of the Board’s reme-
dial authority under Section 10(c) of the Act. See, e.g.,
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 235–
236 (1938).13

12 The record establishes that the Respondent had previously given
the affected employees 1 week’s pay for time they did not perform any
work. See fn. 4, supra. Although my colleagues object to the Re-
spondent’s proposal to defer a portion of severance pay pending resolu-
tion of the mileage reimbursement dispute, they do not find improper
the Respondent’s proposed deduction of the 1 week’s pay previously
provided to the affected employees. Although I believe Respondent’s
effects-bargaining proposals are distinct from the Board-ordered “lim-
ited backpay” that is part of a Transmarine remedy, I concur with my
colleagues’ finding that the 1 week’s pay previously provided by Re-
spondent may be deducted from the Transmarine backpay remedy.
13 In support of their contention that Respondent’s proposal was con-
trary to the Transmarine remedy, my colleagues rely on Sawyer of
Napa, Inc., 321 NLRB 1120 (1996). Sawyer of Napa differs materially
from this case. To understand how, recall that the central purpose of
Transmarine’s limited backpay remedy is “to assure meaningful bar-
gaining.” 170 NLRB at 390. By putting the employer’s former em-
ployees back on the payroll while effects bargaining proceeds, Trans-
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Conclusion
Based on the above considerations, I respectfully dis-
sent from any effects-bargaining backpay remedy to the
extent it exceeds 14 days’ backpay.
Dated, Washington, D.C. August 26, 2016
______________________________________
Philip A. Miscimarra, Member
______________________________________
NATIONAL LABOR RELATIONS BOARD
David Rodriguez, Esq., for the General Counsel.
Michael McAuliffe Miller, Esq. (Eckert, Seamans, Cherin &
Mellott), for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. The hear-
ing in this compliance matter was held on April 14, 2014, in
Philadelphia, Pennsylvania. The compliance specification, as

marine seeks to induce in the employer a state of mind like that of a
passenger in a taxicab: “Hurry up, the meter’s running.” In Sawyer of
Napa, the employer was under the mistaken impression that the meter
stopped running at 2 weeks. Instead of a minimum of 2 weeks’ pay, it
believed that Transmarine provided for a maximum of 2 weeks’ pay.
Under those circumstances, the Board concluded that “the [r]espondent
did not suffer the full consequence of the Transmarine remedy and the
[u]nion was not accorded the full bargaining strength that the Transma-
rine backpay provisions were designed to generate.” 321 NLRB at
1120. In other words, in Sawyer of Napa the employer’s misconception
affected the bargaining process itself, which Congress entrusted to the
Board’s oversight. See H. K. Porter, 397 U.S. at 107–108 (“It is im-
plicit in the entire structure of the Act that the Board acts to oversee and
referee the process of collective bargaining, leaving the results of the
contest to the bargaining strengths of the parties.”). I also find unper-
suasive my colleagues’ reliance on State Journal, 238 NLRB 388
(1978), and Teamsters, Local 705, 227 NLRB 694 (1977). In State
Journal, the discriminatee had assigned his earnings to his wife, and the
employer had paid the discriminatee’s backpay to his wife pursuant to
that assignment. The Board held that payment to the discriminatee’s
wife did not discharge the employer’s backpay obligation to the
discriminatee. Those facts and that holding have no bearing on this
case. In Teamsters, Local 705, the Board disallowed the union’s
claimed backpay offset for union dues owed by the discriminatee,
whose discharge the union had secured in violation of Sec. 8(b)(1)(A)
and (2). The Board explained that “the object of the [backpay] remedy
is to discourage discrimination against employees contrary to the stat-
ute and thereby to vindicate the policies of the Act. Consequently,
[r]espondent is not permitted to reduce the amount of backpay by the
amount of its private claim for dues.” 227 NLRB at 694 (emphasis
added). Here, in contrast, the issue is whether Respondent bargained to
a valid impasse in effects bargaining, and my colleagues are imposing a
backpay remedy—far in excess of that contemplated by Transmarine—
based on their disapproval of the substance of Respondent’s effects-
bargaining proposals, and contrary to the parties’ stipulation that an
impasse over those proposals had been reached in bargaining.
revised, sets forth alleged moneys due former employees Lee
Dyches, Shawn Hood, Patricia Hurd, John Miller and Bill
Parke (hereafter the claimants) under the Transmarine1 backpay
remedy ordered in the Board’s underlying decision in this case
reported at 358 NLRB No. 19 (March 23, 2012). The compli-
ance specification states that the Board’s order directed Re-
spondent to bargain with the Charging Party Union (hereafter
the Union or BARSUEA) over the effects of its decision to
discharge2 the claimants and to pay them normal wages they
would have earned commencing five (5) days after the issuance
of the order until the earliest of the following conditions:
(1) the date that Respondent bargained to agreement with the
Union over the effects of the layoffs; (2) the date a bona fide
impasse in effects bargaining occurred; (3) the failure of the
Union to request bargaining within five business days after
receipt of the Board’s Order, or to commence negotiations
within five business days after receipt of Respondent’s notice
of its desire to bargain with the Union; or (4) the Union’s sub-
sequent failure to bargain in good faith. The Board further
ordered that, in no event, would the sum paid to any of the
claimants exceed the amount that any of them would have
earned as wages from the date of their layoffs to the time they
each secured equivalent employment; nor would the sum paid
to the complaints be less than they would have earned for a
two week period as their normal wages when they last were in
Respondent’s employ, plus interest.
The compliance specification lists the claimants’ bi-weekly
earnings at the time of their discharges as follows: Dyches—
$3,099.48; Hood—$3,194.52; Hurd—$3,145.25; Miller—
$2860.57; and Parke—$3,158.12. The specification also al-
leged that the claimants were on leaves of absence from their
corrections officers jobs with the Commonwealth of Pennsyl-
vania (the Commonwealth) while they were employed by Re-
spondent. By agreement with the Commonwealth, a portion of
their pay was paid by the Commonwealth and the remainder
was paid directly by Respondent, but Respondent reimbursed
the Commonwealth for the portion it paid. Their bi-weekly
earnings set forth above include both portions of pay.
The compliance specification further alleges that none of the
conditions specified in the Board order occurred and that the
back pay period ran 26 weeks from March 28, 2012 (5 days
after the Board order issued) until September 28, 2012, the
approximate date on which the Union that represented the
claimants became defunct and was no longer able to bargain.
As revised at the hearing, the specification sets forth the gross
backpay amounts for each claimant, less interim earnings, re-
sulting in a net back pay amount for each. The total amounts to
some $57,000, plus interest.3

1 Transmarine Navigation Corp., 170 NLRB 389 (1968).
2 The specification erroneously refers to the terminations as layoffs.
3 The parties stipulated that the back pay calculations for Dyches,
Hood, Hurd and Miller set forth in the revised compliance specification
are properly calculated. Respondent disputes the calculation as to
Parke because it contends that Respondent did not mitigate his back
pay liability when he declined to return to his former correction of-
ficer’s position. Respondent, however, agrees that, if its contention as
to Parke, is rejected, the back pay calculation for Parke is accurate.
PENNSYLVANIA STATE CORRECTIONS OFFICERS ASSN. 11
Respondent filed an answer alleging that it had lawfully bar-
gained to an impasse over the amounts due, thus satisfying one
of the key requirements of the Board’s order. It also asserted
that the Union was “essentially defunct and disclaimed any
bargaining obligation prior to September 28, 2012.” The an-
swer admitted the biweekly earnings of the claimants set forth
in the compliance specification. It also admitted the portion of
the specification set forth above dealing with the pay of the
claimants while they were on leaves of absence from their for-
mer jobs. With specific reference to claimant Parke, the answer
alleged that he voluntarily declined to return to his former posi-
tion as a correctional officer for the Commonwealth of Penn-
sylvania, which he originally left to become an employee of
Respondent, even though that opportunity was available to him,
as it was to other claimants who returned to their former posi-
tions. The answer thus asserts that any backpay for him should
be cut off as of the date he declined to return to his former posi-
tion.
The parties filed posthearing briefs which I have read and
considered.
The Facts
Respondent represents some 11,000 corrections officers em-
ployed by the Commonwealth of Pennsylvania. Respondent
employs some 18 individuals who were represented by the
Union. Some of those individuals, including claimants, were
former corrections officers. When they were employed by Re-
spondent, the claimants were on leaves of absences from their
corrections officer jobs. By agreement with the Common-
wealth, a portion of their pay was paid by the Commonwealth
and the remainder was paid directly by Respondent, but Re-
spondent reimbursed the Commonwealth for the portion it paid.
The claimants also accrued pension and leave credits from the
Commonwealth during their employment with Respondent.
(Tr. 35–36, 64–65.)
After their discharge by Respondent, all the claimants re-
ceived letters, dated August 20, 2010, directing them to return
to their original correctional institutions to resume their em-
ployment there. Work was available for those individuals at
their original correctional institutions. (Jt. Exh. 7.) Parke was
the only claimant who did not return to his former position as a
corrections officer. He voluntarily retired from his former posi-
tion and accepted either a pension or a lump sum settlement
both from the Commonwealth and from Respondent. He did,
however, obtain other employment in another industry.4
Parke testified that when joined Respondent he left his cor-
rections officer position in Houtzdale, Pennsylvania, and
moved to Mechanicsburg, Pennsylvania, nearer to his work site
with Respondent in Harrisburg. That was some two and a half
hours drive away from Houtzdale. He also testified that, before
deciding to retire, he did not request a transfer from his former
corrections position to one closer to his home than his work site
at Respondent. Such transfers are readily available and permit-
ted under the applicable collective-bargaining agreement. (Tr.

4 The parties agree that, under the collective-bargaining agreement
between Respondent and the Union, as well as pursuant to past prac-
tice, claimants were entitled to return to their former positions as cor-
rections officers. Tr. 15–16.
47–58.)
On April 4, 2012, representatives of Respondent met with
Larry Sonnie, the president of the Union, to engage in effects
bargaining pursuant to the Board’s decision of March 23, 2012.
This was the parties’ only face to face bargaining meeting.
This meeting was initiated by Respondent, whose representa-
tive contacted Sonnie. The Union apparently had no
knowledge of the Board’s decision and had not attempted to
initiate effects bargaining. (Tr. 19.)
Respondent’s position was set forth in a letter to Sonnie, dat-
ed April 4. It offered to pay the claimants 2 weeks’ pay with-
out deductions for interim earnings, less 1 week’s pay claim-
ants received at the time of their discharge for time they did not
work for Respondent. Those amounts would then, according to
Respondent, be considered a credit against moneys allegedly
received by claimants for improper mileage reimbursements
during their employment. Respondent has sued for the return
of such mileage reimbursements in civil lawsuits against
Claimants Dyches, Hurd and Miller. Those lawsuits are still
pending.5
Union Vice President Lawrence Blackwell mailed a counter-
offer to Respondent on April 10, 2012. The counteroffer was as
follows: 2 weeks’ severance pay and all unused vacation or
leave paid back for Dyches, Hurd, Miller, and Parke; and 2
weeks’ severance pay, 70 vacation days, unpaid phone charges
and 6 weeks’ of mileage reimbursement for Hood. Blackwell
also rejected the set off for mileage reimbursement because he
contended that there was no proof that it was invalidly claimed.
On April 11, 2012, Respondent rejected the Union’s coun-
teroffer, giving reasons in support of its position. It also stated
that impasse in bargaining had occurred. The parties stipulated
that Respondent and the Union reached an impasse on April 11,
2012. It was also stipulated that neither party made any other
effort to contact the other to engage in further effects bargain-
ing.6
Sonnie and Blackwell retained their positions in the Union
until September 28, 2012, when all parties agree that the Union
became defunct. Sonnie testified that he tried to reach out to
the claimants to determine their positions on the Respondent’s
April 4 offer, but none of them returned his calls. He then
turned the matter over to Blackwell, who apparently was able to
make contact with at least one of the claimants. (Tr. 26, 28,
39–40, 83.) According to Sonnie, between April 2012 and
September 2012, the Union was “in a holding pattern” because
a petition to decertify the Union was filed with the Board’s
Philadelphia regional office. He testified that “nobody wanted
to do anything because we didn’t know whether we were going
to be there or not.” (Tr. 37.)
A petition to decertify the Union was filed on January 26,
2012, with the Region 4 of the Board in Philadelphia. Attached
to the petition was a statement, signed by 11 of the 18 employ-

5 Respondent’s claims of invalid mileage reimbursement included
an amount for Hood, but, according to the stipulation of the parties, no
lawsuit was filed against Hood to recover the mileage amounts he ap-
parently owed. The parties also stipulated that Parke was not accused
of collecting invalid mileage reimbursements.
6 Respondent conceded that its position on mileage reimbursement,
at least, was insisted upon to the point of impasse. Tr. 16–17.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees in the unit represented by the Union, that the signers no
longer wanted the Union to represent them. (R. Exh. 5.) On
March 7, 2012, while the underlying case was still pending
before the Board, the regional director for Region 4 dismissed
the decertification petition because of the then-existing 2010
bargaining agreement whose validity was at issue in the under-
lying case, “subject to reinstatement, if appropriate,” upon con-
clusion of the underlying case. In fact, in the Board’s March
23, 2012 decision, the 2010 contract was declared invalid. R.
Exh. 7. But apparently no one asked for reinstatement of the
decertification petition and no election was held. Furthermore,
as indicated above, the Respondent dealt with the Union in
effects bargaining in April 2012.
Discussion and Analysis
There are several issues in this case: (1) Did the back pay pe-
riod end on April 11, 2012, when the parties were admittedly at
impasse in their effects bargaining, as Respondent alleges, or
September 28, 2012, when the Union became defunct, as the
General Counsel alleges? The answer to that question turns on
how one views Respondent’s conditions for agreement—that its
offer of 2 weeks’ back pay be set off by an earlier week’s pay
to the claimants that was unearned and by any amounts due to
Respondent because of improper mileage reimbursements to
claimants. The General Counsel asserts that these conditions
were not mandatory subjects of bargaining. Respondent says
that they were. (2) If Respondent’s contention on the above
question fails, did the back pay period end at some point before
September 28, as Respondent contends, because the Union was
essentially incapable of bargaining, mainly because of the filing
of a decertification petition, which was not promptly acted
upon by the regional office? (3) As to Parke, was Respondent’s
back pay liability tolled because Parke, alone among the claim-
ants, voluntarily declined to return to his former position as a
corrections officer, as Respondent contends?
It is settled that a lawful impasse cannot exist if a party in-
sists that any agreement include a nonmandatory subject of
bargaining—that is, a subject that does not “vitally affect”
wages, hours or terms and conditions of employment. See
Cushman & Wakefield, Inc., 360 NLRB No. 10, slip op. 4
(2013), and cases there cited.
Here, it is clear that the parties were at impasse in bargaining
over the effects of the decision to discharge the claimants. It is
Respondent’s position that the Board’s order in the underlying
case tolled back pay at the point that the parties were at lawful
impasse. But it is also clear that the Board’s order required a
minimum of two weeks of back pay. Respondent offered two
weeks of back pay, but required that there be a set off against
that amount of an earlier payment of one week of pay that al-
legedly had been unearned and of whatever it alleged was im-
proper mileage reimbursement to some claimants during their
employment. These conditions were contrary to the minimum
back pay remedy in the Board’s order. Insistence to impasse on
a position that derogates from a specific Board remedy
amounts, in my view, to insistence on an illegal subject of bar-
gaining. See Chapter 16 VI. B. of The Developing Labor Law
(Sixth Edition, 2012). At the least, such a position does not
constitute a mandatory subject, about which the other party
must bargain. Accordingly, I find that the impasse of April 11
was not a valid impasse and the back pay period continued to
run thereafter.7
Nor do I find that the Union was incapable of bargaining at
any point before September 28, 2012, when it became defunct.
Clearly, the Union was operative in April 2012 when Respond-
ent engaged with it in effects bargaining. Thus, any contention
that the decertification petition, which was filed in January
2012, made the Union incapable of bargaining must fail. No
election was held and thus the Union was still a viable entity, at
least insofar as carrying out the bargaining contemplated in the
Board’s order in the underlying case. Moreover, Respondent
negotiated with the Union over effects bargaining, thus waiving
any right to challenge its representative status. See Fallbrook
Hospital, 360 NLRB No. 73, slip op. 1 (2014) (employer
waived its right to challenge validity of a union’s certification
by entering into negotiations with that union).8
It is true that neither side requested a return to the bargain-
ing table after April 11. But that was because Respondent poi-
soned the well by insisting on improper conditions that caused
an impasse. Had it not wrongfully insisted on those conditions,
contrary to the Board’s order, the bargaining might well have
gone forward. Thus, Respondent, like any wrongdoer, cannot
profit from any lack of bargaining from mid-April until the
September 2012 date the Union became defunct. I therefore
reject the Respondent’s position and agree with the General
Counsel’s position that the back pay period runs until Septem-
ber 28, 2012.
The above applies to the claims of Dyches, Hood, Hurd and
Miller. Parke is different because I must consider the separate
allegation that he failed to mitigate Respondent’s back pay
liability by not returning to his former employment with the
Commonwealth of Pennsylvania, as did the other claimants.
See St. George Warehouse, 351 NLRB 961, 963 (2007).
I agree with Respondent that Parke failed to mitigate the
back pay obligation to him. He voluntarily retired from his
former position and refused even to consider asking for a trans-
fer to a position nearer his home that was likely available. I
reject the General Counsel’s attempt (Br. 18–20) to treat
Parke’s former corrections officer position as the usual kind of
interim employment. That job was intrinsically intertwined
with his position with Respondent. Parke’s job as assistant
grievance manager for Respondent was based to a great degree

7 The briefs of the parties on this issue seem to joust on a separate
point—whether seeking a set off for mileage reimbursement, particular-
ly in light of pending lawsuits against some but not all of the claimants,
amounts to a mandatory or permissive subject of bargaining. In view
of my rationale for finding no lawful impasse, set forth above, I need
not address this point. But the General Counsel seems to have the
better of the argument since Respondent’s set off is comparable to
conditioning agreement on a general release of claims, which is a per-
missive, not a mandatory, subject of bargaining. See Borden, Inc., 279
NLRB 396, 398–399 (1986).
8 As the General Counsel points out (Br. 15), the decertification pe-
tition was properly dismissed by the region pending the outcome of the
underlying case. The petition was not reinstated thereafter, and could
not have been until after the Respondent’s violation (failure to engage
in effects bargaining) was appropriately remedied.
PENNSYLVANIA STATE CORRECTIONS OFFICERS ASSN. 13
on his former experience as a corrections officer since Re-
spondent represents corrections officers. Moreover, as indicat-
ed above, Parke was simply on leave of absence from his for-
mer position. Indeed, part of his compensation from Respond-
ent was paid by the Commonwealth. He also accrued pension
and leave credits from the Commonwealth during his employ-
ment with Respondent. And he had an absolute right to return
to his former position after his leave of absence was over. To
overlook these ties to his former position in determining the
mitigation issue would provide Parke with a windfall he does
not deserve. Thus, in the particular circumstances of this case,
I find that Parke “willfully incurred” a loss by his “clearly un-
justified” refusal to return to his former employment. St.
George Warehouse, above, quoting from applicable authorities.
I do not believe, however, that Parke is entitled to no back
pay, as Respondent seems to contend. He is entitled to the
minimum 2 weeks of back pay set forth in the Board’s order in
the underlying case.
On these findings and conclusions, and on the entire record, I
issue the following recommended9
ORDER
The Respondent, its officers, agents, successors and assigns,
shall pay the claimants the amounts specified after their names
below, plus interest accrued to the date of payment, as pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010), minus tax withholdings required by Federal
and State laws.
Lee Dyches $9,646.25
Shawn Hood 3,235.89
Patricia Hurd 11,755.23
John Miller 8,243.08
Bill Parke $3,158.12
Dated, Washington, D.C., May 23, 2014

9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.