NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,513, COMPU-NET COMMUNICATIONS, INC. et al. and COMMUNICATIONS WORKERS OF AMERICA, DISTRICT ONE, AFL-CIO., (Sep. 30, 1994), National Labor Relations Board, (Sep 30, 1994)

COMPU-NET COMMUNICATIONS, INC. et al. and COMMUNICATIONS WORKERS OF AMERICA, DISTRICT ONE, AFL-CIO.

315 NLRB No. 32.Case No. 2-CA-25590. September 30, 1994 Eleanor MacDonald, Administrative Law Judge..

Before Stephens, Devaney and Cohen.

Mindy Landow, for General Counsel. James M. Reilly (Herzog, Engstrom & Koplovitz, P.C.), Albany, New York, for Respondent. Gabrielle Semel, New York, New York, for Charging Party.

Unilateral Changes by Employer--Working Conditions--Subcontracting, Plant Closing.--By unilaterally changing a health insurance plan, closing its plant and terminating its employees and transferring and subcontracting some of its bargaining unit work, an employer violated its bargaining duty. The employer failed to notify the union of the changes, nor did it give the union an opportunity to bargain over the deviations from the parties’ bargaining contract. Further, the employer’s claimed defenses, that its unilateral actions were excused because of economic necessity or that the language of the collective bargaining agreement permitted the changes, were unpersuasive because the employer was still required to bargain over the changes. Section 8(a)(5).

Back reference: ¶3145.70.

From Text of Board’s Decision

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, [1] and conclusions [2] and to adopt the recommended Order as modified. [3]

¹	The expiration date of the loan agreement with Norstar Bank at sec. II,A,2 par. 2 and sec. II,B,2 par. 4 should be September 30, 1991.
²	In agreeing with the judge that the Respondents unlawfully failed to bargain with the Union concerning the decision to subcontract the upstate work and the effects of that decision, we rely on Fibreboard Corp. v. NLRB, [50 LC ¶19,384] 379 U.S. 203 (1964), and we do not pass on the judge’s characterization of Dubuque Packing Co., [1991-92 CCH NLRB ¶16,687] 303 NLRB 386 (1991), enfd. sub nom. Food & Commercial Workers Local 150-A v. NLRB, [125 LC ¶10,796] 1 F.3d 24 (D.C. Cir. 1993), cert. granted 114 S.Ct. 1395 (Apr.4, 1994). Concededly, the judge’s conclusions of law speak of a transfer of operations. However, it is clear that this case does not involve a “relocation” within the meaning of Dubuque Packing. Rather, in context, the judge was referring only to a transfer of operations from Respondent Compu-Net to its alter ego, Respondent Control. The only decision bargaining involved in this aspect of the case is the decision by Compu-Net/Control to subcontract the work to TAD. Thus, this aspect of the case is governed by Fibreboard principles.
³	We agree with the judge that reinstitution of the Respondents’ upstate operations is an appropriate remedy in view of the Respondents’ unlawful subcontracting of that work without providing the Union notice or an opportunity to bargain. However, the Respondents may introduce previously unavailable evidence, if any, at the compliance stage of this proceeding to demonstrate that the reinstitution of those operations in unduly burdensome. Lear Siegler, Inc., [1989-90 CCH NLRB [¶15,693] 295 NLRB 857 (1989). We have modified par. 2(c) of the recommended Order accordingly.

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,513, COMPU-NET COMMUNICATIONS, INC. et al. and COMMUNICATIONS WORKERS OF AMERICA, DISTRICT ONE, AFL-CIO., (Sep. 30, 1994), National Labor Relations Board, (Sep 30, 1994)

COMPU-NET COMMUNICATIONS, INC. et al. and COMMUNICATIONS WORKERS OF AMERICA, DISTRICT ONE, AFL-CIO.

315 NLRB No. 32.Case No. 2-CA-25590. September 30, 1994 Eleanor MacDonald, Administrative Law Judge..

Before Stephens, Devaney and Cohen.

Mindy Landow, for General Counsel. James M. Reilly (Herzog, Engstrom & Koplovitz, P.C.), Albany, New York, for Respondent. Gabrielle Semel, New York, New York, for Charging Party.

Back reference: ¶3145.70.

From Text of Board’s Decision

¹	The expiration date of the loan agreement with Norstar Bank at sec. II,A,2 par. 2 and sec. II,B,2 par. 4 should be September 30, 1991.
²	In agreeing with the judge that the Respondents unlawfully failed to bargain with the Union concerning the decision to subcontract the upstate work and the effects of that decision, we rely on Fibreboard Corp. v. NLRB, [50 LC ¶19,384] 379 U.S. 203 (1964), and we do not pass on the judge’s characterization of Dubuque Packing Co., [1991-92 CCH NLRB ¶16,687] 303 NLRB 386 (1991), enfd. sub nom. Food & Commercial Workers Local 150-A v. NLRB, [125 LC ¶10,796] 1 F.3d 24 (D.C. Cir. 1993), cert. granted 114 S.Ct. 1395 (Apr.4, 1994). Concededly, the judge’s conclusions of law speak of a transfer of operations. However, it is clear that this case does not involve a “relocation” within the meaning of Dubuque Packing. Rather, in context, the judge was referring only to a transfer of operations from Respondent Compu-Net to its alter ego, Respondent Control. The only decision bargaining involved in this aspect of the case is the decision by Compu-Net/Control to subcontract the work to TAD. Thus, this aspect of the case is governed by Fibreboard principles.
³	We agree with the judge that reinstitution of the Respondents’ upstate operations is an appropriate remedy in view of the Respondents’ unlawful subcontracting of that work without providing the Union notice or an opportunity to bargain. However, the Respondents may introduce previously unavailable evidence, if any, at the compliance stage of this proceeding to demonstrate that the reinstitution of those operations in unduly burdensome. Lear Siegler, Inc., [1989-90 CCH NLRB [¶15,693] 295 NLRB 857 (1989). We have modified par. 2(c) of the recommended Order accordingly.

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,513, COMPU-NET COMMUNICATIONS, INC. et al. and COMMUNICATIONS WORKERS OF AMERICA, DISTRICT ONE, AFL-CIO., (Sep. 30, 1994), National Labor Relations Board, (Sep 30, 1994)

From Text of Board’s Decision

Footnotes

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,513, COMPU-NET COMMUNICATIONS, INC. et al. and COMMUNICATIONS WORKERS OF AMERICA, DISTRICT ONE, AFL-CIO., (Sep. 30, 1994), National Labor Relations Board, (Sep 30, 1994)

From Text of Board’s Decision

Footnotes