Triumph Aerostructures, LLC

National Labor Relations Board - Board Decisions

Jul 17, 2020

369 N.L.R.B. 123 (N.L.R.B. 2020)

369 NLRB No. 123
NOTICE: This opinion is subject to formal revision before publication in the bound
volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board, Washington, D.C. 20570, of
any typographical or other formal errors so that corrections can be in-
cluded in the bound volumes.
Triumph Aerostructures, Vought Aircraft Division
and Lawrence Hamm and Rodney Horn and
Thomas Smith and The International Union,
United Automobile, Aerospace, and Agricultural
Implement Workers of America, Local 848.
Cases 16–CA–197912, 16–CA–198055, 16–CA–
198410, and 16–CA–198417
July 17, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On September 30, 2019, Administrative Law Judge
Robert A. Ringler issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief, the
Respondent filed an answering brief, and the General
Counsel filed a reply brief. The Union filed exceptions
and a supporting brief, the Respondent filed an answering
brief, and the Union filed a reply brief. The Respondent
filed cross-exceptions and a supporting brief, the General
Counsel and the Union each filed an answering brief, and
the Respondent filed a reply brief.
The National Labor Relations 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,1 findings, and conclusions as further dis-
cussed below and to adopt the recommended Order.
1. The judge dismissed the allegations that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
unilaterally imposing discretionary discipline by discharg-
ing Thomas Smith and suspending Rodney Horn. We
agree with the judge’s conclusion for the following rea-
sons.
In Total Security Management Illinois 1, LLC, 364
NLRB No. 106 (2016), the Board held that if an employer
exercises discretion under a preexisting disciplinary pol-
icy when it demotes, suspends, or discharges an employee,
and a union has been certified or lawfully recognized as
the employees’ representative but the parties have not yet
1 The parties have filed exceptions to some of the judge’s evidentiary
rulings. We find it unnecessary to resolve these exceptions as they do
not affect the outcome of the case. For the same reason, we find it un-
necessary to pass on the Respondent’s Motion to Partially Strike the Un-
ion’s exceptions and briefs.
The judge erroneously stated that the Respondent closed both its Dal-
las and its Grand Prairie, Texas facilities in 2013, when in fact the Re-
spondent closed only its Dallas facility. We correct the judge’s inadvert-
ent error, which does not affect our decision.
entered into a collective-bargaining agreement, the em-
ployer must give the union notice and opportunity to bar-
gain before it decides to take that disciplinary action. Re-
cently, however, the Board overruled Total Security Man-
agement and held that, upon commencement of a collec-
tive-bargaining relationship, employers do not have an ob-
ligation to bargain prior to disciplining unit employees in
accordance with an established disciplinary policy or
practice. 800 River Road Operating Co., 369 NLRB No.
109, slip op. at 7 (2020). The Board applied its holding
retroactively to all pending cases. See id. As noted by the
judge, the Respondent discharged Smith and suspended
Horn pursuant to its preexisting disciplinary policy. Ac-
cordingly, applying 800 River Road, we find that the Re-
spondent did not violate the Act by failing to give the Un-
ion notice and an opportunity to bargain before deciding
to take these actions, and we shall dismiss those allega-
tions.
2. We further agree with the judge’s dismissal of the
allegation that the Respondent violated Section 8(a)(5)
and (1) of the Act by laying off 12 bond shop employees
without negotiating to impasse. We agree that impasse is
established here under Taft Broadcasting Co., 163 NLRB
475 (1967), enfd. sub. nom. Television Artists, AFTRA v.
NLRB, 395 F. 2d 622 (D.C. Cir. 1968). The Board in Taft
defined impasse as a situation where “good-faith negotia-
tions have exhausted the prospects of concluding an agree-
ment.” Id. at 478. Whether a valid impasse exists is a
“matter of judgment,” and among the relevant factors are
“[t]he bargaining history, the good faith of the parties in
negotiations, the length of the negotiations, the im-
portance of the issue or issues as to which there is disa-
greement, [and] the contemporaneous understanding of
the parties as to the state of negotiations.” Id. The burden
of demonstrating an impasse rests on the party making the
claim. See Serramonte Oldsmobile, Inc., 318 NLRB 80,
97 (1995), enfd. in pert. part 86 F.3d 227 (D.C. Cir.
1996).2
We find the Taft factors satisfied. The Respondent bar-
gained in good faith, as evidenced by its initial bargaining
proposal to “loan” bond shop employees at full pay to
other jobs rather than lay them off.3 The record further
shows the Respondent’s good-faith discussion with the
Union on a wide range of aspects of that proposal, as well
2 The commission of serious, unremedied unfair labor practices pre-
cludes a finding of a valid impasse. See, e.g., Royal Motor Sales, 329
NLRB 760, 762 (1999). There are no such circumstances here.
3 As the judge observed, the Respondent’s initial loan proposal “was
abundantly reasonable, and demonstrated a strong desire to reach agree-
ment. [The Respondent’s] opening salvo was to altruistically solve the
overstaffing dilemma by not laying off anyone and only transferring af-
fected bond shop workers to other departments for a short duration at
their current pay.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
as the proposal to permanently transfer the employees to
another department. In each instance, the parties dis-
cussed in detail key issues, such as method of employee
selection and rate of pay to be received.4
The length of negotiations and the volume of bargaining
proposals exchanged additionally weigh in favor of find-
ing impasse. The parties met for four bargaining sessions,
even though their bargaining was limited to the sole topic
of laying off bond shop employees.5 The parties ex-
changed and discussed some seven different written bar-
gaining proposals, covering a breadth of topics related to
the layoff.6 Importantly, the parties’ ultimate disagree-
ment was over an issue central to the proposals to loan or
transfer employees in lieu of layoff: which party would
control selection of individual employees for such loan or
transfer.
Finally, the contemporaneous understanding of the par-
ties as to the state of negotiations weighs in favor of im-
passe. At the final bargaining session on April 19, both
parties essentially recognized that they had exhausted the
prospect of reaching agreement on either of the two main
proposals. Although the Union stated it was willing to
continue bargaining, it offered no new proposals, instead
indicating only that it could formulate some new proposals
if given more time. While the Union’s expression of will-
ingness to continue bargaining is significant, it was not
paired with articulation of any new proposals.7 In these
circumstances, absent more specific information from the
Union to indicate that further bargaining would be fruitful,
the Respondent was warranted in concluding that it would
not be. See, e.g., ACF Industries, 347 NLRB 1040, 1041
(2006) (finding impasse where “[t]he Respondent had
nothing left to offer beyond that which had already been
rejected, and the Union similarly had offered no new pro-
posals”; noting that the Union “gave the Respondent no
reason to conclude that further bargaining at that time
would have been fruitful”).
4 The Respondent’s general good faith is also evidenced by its dec-
ades-long relationship with the Union at the Respondent’s prior location
and its voluntary recognition of the Union at the new facility involved
here.
5 The parties had agreed to carve out the layoff negotiations from their
contemporaneous negotiations for an overall collective-bargaining
agreement.
6 As the judge found, the parties’ bargaining “comprehensively cov-
ered, inter alia, transfers in lieu of layoffs, seniority-based layoff sys-
tems, other layoff ranking systems, recall and separation rights, volun-
tary retirement systems, and voluntary separations.”
7 The Board as well as the courts have emphasized that either party's
willingness to continue negotiating towards an agreement weighs heavily
against a finding of impasse. See, e.g.,Teamsters Local Union No. 639 v.
NLRB, 924 F.2d 1078,1084 (D.C. Cir. 1991) (stating that "the parties'
perception regarding the progress of the negotiations is of central
We find for these reasons that the parties engaged in
significant bargaining over the single issue of layoffs and
reached impasse under Taft over the viability of alterna-
tives to layoff.8 We accordingly find that the Respondent
satisfied its bargaining obligation with respect to the
layoffs, and we shall dismiss the allegation that it failed to
do so.
ORDER
The recommended Order of the administrative law
judge is adopted and the second amended consolidated
complaint is dismissed.
Dated, Washington, D.C. July 17, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Megan McCormick and Bryan Dooley, Esqs., for the General
Counsel.
David R. Broderdorf and Lauren M. Emery, Esqs. (Morgan,
Lewis & Bockius, L.L P.), for the Respondent.
Rod Tanner, Esq. (Tanner & Associates, P.C.), for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. This case
was tried in Fort Worth, Texas, in April 2019. The complaint
importance to the Board's impasse inquiry"); PRC Recording Co., 280
NLRB 615, 635 (1986), enfd. 836 F.2d 289 (7th Cir. 1987); see also
Quality Health Services v. NLRB, 873 F.3d 375, 387 (1st Cir. 2017).
Nevertheless, a party’s “bare assertions of ‘flexibility’ on open issues
and its generalized promises of ‘new’ proposals” do not, without more,
preclude impasse. Holiday Inn Downtown-New Haven, 300 NLRB 774,
776 (1990).
8 The General Counsel and the Union argue that the Respondent with-
drew its loan proposal at the April 7 bargaining session, and they except
to the judge’s failure to make a credibility determination to that effect.
We do not pass on whether the record contains conflicting testimony on
this issue warranting a credibility determination in the first place be-
cause, even assuming arguendo that the proposal was withdrawn, we find
that impasse was reached under the elements of the Taft analysis on the
basis of the balance of the existing record.
TRIUMPH AEROSTRUCTURES, VOUGHT AIRCRAFT DIVISION 3
alleged that Triumph Aerostructures, Vought Aircraft Division
(Triumph or the Respondent) violated §8(a)(1) and (5) of the Na-
tional Labor Relations Act (the Act) by: unilaterally discharging
bargaining unit employees without first affording the Interna-
tional Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, Local 848 (the Union) notice
and an opportunity to bargain; and laying off bargaining unit
bond shop workers without negotiating to a good faith impasse.
As will be explained, these allegations are meritless. On the rec-
ord, I make the following
FINDINGS OF FACT1
I. JURISDICTION
Annually, Triumph, a corporation with a facility in Red Oak,
Texas, manufactures aircraft components, and sells and ships
more than $50,000 in products directly outside of Texas.2 I find,
as a result, that it is an employer engaged in commerce, within
the meaning of §2(2), (6), and (7) of the Act. I also find that the
Union is a §2(5) labor organization.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Between 1968 and 2013, the Union represented a multi-facil-
ity, production and maintenance unit at Triumph’s Dallas and
Grand Prairie, Texas plants. (Jt. Exh. Z.) In 2013, Triumph
closed these plants and opened its Red Oak facility.3 In early
2014, it voluntarily recognized the Union as the representative
of this bargaining unit (the Unit):4
Included: All production and maintenance employees em-
ployed at … [the] Red Oak [plant] ….
Excluded: All other employees, electricians, office clerical
employees, managerial employees and guards, professional
employees and supervisors as defined in the Act.
(Jt. Exh. A.) Before its recognition, Triumph set initial terms
and conditions of employment, including discipline and layoff
policies. In 2015, the parties began bargaining. On March 25,
2018, they finalized a contract that ran until 2021 (the 2018 con-
tract). (Jt. Exh. Y.) This litigation involves Triumph’s actions
between its 2014 recognition and the 2018 contract (i.e., the
postrecognition/precontract period). The complaint challenged
its layoff and unilateral discharges during this period. The cen-
tral facts are undisputed.
B. Unilateral Discharges5
1. Facts
a. Extant Disciplinary Policy
In 2013, prior to its Union recognition, Triumph set this Red
1 Unless otherwise stated, factual findings arise from joint exhibits,
stipulations, and undisputed evidence.
2 Its aerospace customers include Bell Helicopter, Boeing, Gulf-
stream, Northrup Grumman, and Pratt & Whitney.
3 In October 2013, Triumph began transferring bargaining unit em-
ployees to the Red Oak facility.
Oak discipline policy:
General Offenses
The following offenses are subject to the disciplinary action in-
dicated:….
(3) Substandard, careless, or inefficient work, ….
Disciplinary Actions - General Offenses
Committing any General Offense can result in the following
actions being taken:
(1) First offense: Written first warning notice,
(2) Second offense of any nature: Second written warn-
ing notice.
(3) Third offense of any nature: Final written warning no-
tice, disciplinary suspension, or discharge,
(4) Fourth offense of any nature: Discharge ….
Major Offenses
The following offenses are subject to the disciplinary action in-
dicated: ….
(2) Gross negligence in performing duties.
(3) Failure to report any errors … or poor
workmanship to supervision,….
Disciplinary Actions—Major Offenses
Committing any Major Offense can result in the following ac-
tions being taken:
(1) First offense: Written final warning notice, written fi-
nal warning notice and disciplinary suspension, or dis-
charge.
(2) Second offense: Discharge, ….
(Jt. Exh. A.)
b. Thomas Smith and Rodney Horn Disciplines
On November 17, 2016, Triumph suspended unit employee
Smith and then fired him for poor workmanship following its in-
vestigation. (R. Exh. 11.) On April 3, 2017, Triumph issued
Unit employee Horn a 5-day suspension for gross negligence.
(Jt. Exh. Z; R. Exh. 13.) These actions occurred without notice
to the Union or pre-implementation bargaining.
2. Analysis6
a. Legal Precedent
In Oberthur Technologies of America Corp., 368 NLRB No.
5, slip op. at 3 (2019), the Board held as follows:
[W]hen an employer does not change its pre-existing discipli-
nary policies but merely exercises some discretion in applying
them, the imposition of discipline pursuant to those policies
does not constitute a change in a term or condition of employ-
ment …. and the employer is not required to give the union
4 There are approximately 500 employees in the Unit.
5 These allegations are listed under ¶¶ 12, 14, 15, and 17 of the com-
plaint.
6 The parties agreed that these decisions were discretionary under To-
tal Security Management Illinois I, LLC, 364 NLRB No. 106 (2016).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
notice and opportunity to bargain before it makes its discipli-
nary decision ….
b. Discussion
Triumph did not violate the Act, when it unilaterally disci-
plined Smith and Horn without affording the Union notice and
the opportunity to conduct pre-implementation bargaining. Tri-
umph disciplined them pursuant to its preexisting Red Oak dis-
cipline policy covering gross negligence and poor workmanship.
(Jt. Exh. A.). Although Triumph exercised discretion, as stipu-
lated, when applying its policy, it did not change any term or
condition of employment that required pre-implementation bar-
gaining. Oberthur Technologies, supra.
C. Bond Shop Layoff7
1. Facts
a. Extant Layoff Policy
In 2013, Triumph set the following Red Oak layoff policy:
Definitions RIF Unit: The peer group against which employ-
ees in the same classification are compared ….
Notifications … The layoff notification period … is typically
one week ….
General Rules Management will … assess … the … statement
of work and determine the skills and abilities needed …. [and]
determine … where reductions will occur.
Employees … will be rated … upon … the skills and abilities
defined above. In addition, factors such as experience, perfor-
mance, education and documented concerns regarding perfor-
mance, conduct or similar issues, will also be considered ….
HR … must … approve all layoffs ….
(Id.)
b. 2016—2017—Decreased Orders
In 2016 and 2017, Triumph experienced an unexpected down-
fall in orders from Bell Helicopter and Gulfstream. (Jt. Exh. Z.)
This shortfall reduced its bond shop staffing needs,8 which, in
turn, caused it to be overstaffed by 15 workers. (GC Exh. 10, R.
Exhs. 15–16.) On this basis, Triumph was forced to consider a
layoff.
c. March 28, 2017—Layoff Notice
On this date, Triumph sent this letter to the Union:
This letter serves as official notification … that the Company
tentatively plans to … layoff … 12 … unit employees in the
bond shop. The Company … is considering a layoff [for] …
April 21, 2017 ….
[L]ayoffs are due to a … production slowdown in G600 and P-
42 Programs ….
[U]nit employees subject to layoff have not yet been selected
7 These allegations are listed under ¶¶13–14, and 16–17 of the com-
plaint.
8 The bond shop finishes aerospace components by applying adhesive
to, and chemically bonding, sub-parts.
from within the bond shop. The Company intends to comply
with the status quo layoff policy in making layoff selections.
This layoff policy has been in effect [since] …. 2014 ….
The Company also is willing to discuss … these tentative
layoffs …. [and] a potential loan agreement to keep … employ-
ees gainfully employed …. [P]lease let me know … [by] …
April 7, 2017, if … the Union wishes to participate in the layoff
process, discuss loan potentials or would like additional infor-
mation. The Company intends to make a final decision … by
… April 10, 2017.
(Jt. Exh. G.)
d. March 30, 2017—Union Requests Layoff Bargaining
The Union requested bargaining, and sought this information:
 A list of Bond Shop employees, in seniority … order.
 A list of Bond Shop employees not transferred to Red
Oak from Marshall Street or Jefferson Street that are
… unit employees … [by] hire date ….
 Any disciplinary action the Company will use in the
layoff evaluation process for all Bond Shop employ-
ees.
 Attendance unit cards for all Bond Shop employees
from April 1, 2016 through April 1, 2017.
 A list of employees separated by Lead for Bond Shop
assignments ….
(Jt. Exhs. H, I.)
e. March 31, 2017—Triumph’s Reply to the March 30 Infor-
mation Request
Triumph offered this reply to the Union’s information request:
1. A list of Bond Shop employees, in seniority order ….
The requested list is attached hereto as Attachment 1….
2. A list of Bond Shop employees not transferred to Red Oak
from Marshall Street or Jefferson Street ….
The Company … provided a list of all bond shop employees
… above [with hire dates showing those hired after Red Oak’s
opening] ….
3. Any disciplinary action the Company will use in the layoff
evaluation process for all Bond Shop employees.
The Company proposes to consider any and all active disci-
pline ….
4. Attendance unit cards for all Bond Shop employees from
April 1, 2016 through April 1, 2017.9
The Union's request for a calendar years' worth of attendance
cards is burdensome and will require numerous man hours to
produce …. The Company requests the Union clarify … why
such information is pertinent to … bargaining over the … ten-
tative layoff plans. Inasmuch as … attendance discipline would
be considered in the evaluation process, the Union has been
9 Triumph ultimately provided these timecards at an April 19 bargain-
ing session. (GC Exh. 5.)
TRIUMPH AEROSTRUCTURES, VOUGHT AIRCRAFT DIVISION 5
provided all such discipline …. [A] ttendance cards would not
be used in said evaluation, so …. [p]lease clarify … relevance
….
5. A list of employees separated by Lead for Bond Shop em-
ployees.
The requested list is attached hereto as Attachment 2 ….
(Jt. Exh. J.)
f. April 5, 2017—Triumph’s Initial Layoff Proposal
Triumph offered this proposal to the Union:
 ln lieu of layoff, the Company may loan not more than
20 bond shop employees to other UAW job classifica-
tions … for a period not to exceed six (6) months from
the date of the instant agreement.
 Employees who are loaned will not have their compen-
sation affected ….
 The Company … [has] sole discretion to determine …
loaned [workers] ….
 The Company … [has] sole discretion to determine
the[ir] job assignments ….
 Should an individual employee refuse to be loaned …
, the employee shall be deemed to voluntarily termi-
nate his employment.
This agreement … shall not be cited by either party as prece-
dent setting.
(Jt. Exh. K.) Danielle Garrett, Director of Employee and Labor
Relations and chief spokesperson, stated that Triumph’s pro-
posal was generous, allowed affected workers to keep their jobs
without a pay cut, and capped displacement at 6 months. She
was both surprised and disappointed by the Union’s rejection of
this solution.
g. April 6, 2017—Bargaining Session10
The parties attended a layoff bargaining session. Union pres-
ident James Ducker and several employees represented the Un-
ion, while Garrett and Human Resources Representatives Jorge
Gil and Wendy Bailey represented Triumph. (R. Exh. 5.) The
Union offered this counter:
 In lieu of layoff, the Company may loan not more than
20 bond shop employees … for a period not to exceed
six (6) months ….
 Employees who are loaned will not have their compen-
sation affected ….
 The Company will seek volunteers to loan.
 The Company will make every attempt to place loaned
employees into positions where they may have previ-
ous experience or may be successful.
 The Company will collaborate with the Union to sat-
isfy these loans.
10 The parties often combined broader bargaining for a first collective-
bargaining agreement with bond shop layoff negotiations at these meet-
ings.
 Should an individual employee refuse to be loaned …
, the employee shall be laid off for a period not to ex-
ceed six (6) months ….
(Jt. Exh. L.) In rejecting the Union’s proposal, Garrett explained
that the layoff required Triumph to unilaterally and expeditiously
choose the temporary transfers for business reasons, and that first
seeking volunteer transfers could detrimentally affect bond op-
erations that were already strained. See also (R. Exh. 5, GC Exh.
3.) She added that the Union’s proposal contained ambiguities
that would cause unexpected interpretation and labor relations
issues.
Triumph offered this counter, which added a vehicle to handle
unexpected transfer issues:
 In lieu of layoff, the Company may loan not more than
20 bond shop employees … for … [up to] six (6)
months ….
 Employees who are loaned will not have their compen-
sation affected ….
 The Company … [has] sole discretion [as to] … [who]
will be loaned ….
 The Company … [has] sole discretion [as to their] …
assignments ….
 Should the Union have concerns regarding a loaned
employee … , the Company will meet … to … attempt
to reach mutual resolution.
 Should an individual employee refuse to be loaned …
, the employee shall be deemed to voluntarily termi-
nate his employment.
 Should the need arise to increase the number of em-
ployees loaned out … , the parties will meet to discuss
the possibility of an increase of scope.
(Jt. Exh. M.) Garrett repeated that Triumph needed flexibility
regarding who to select and could not first solicit volunteers.
Ducker indicated that the Union rejected this proposal because
he felt that it was unfair for Triumph to discharge workers that
refused transfers.
h. April 7, 2017—Bargaining Session
Ducker, Garrett and others attended. (R. Exh. 6.) The Union
offered this counter:
 … [E]mployees shall be … [laid off in classification]
seniority order ….
 The l[east] … senior employees will be offered a trans-
fer into … Assembly …. [and] placed into … [a] train-
ing Assembly class.
 Employees … transferred from the Bond Shop … into
… Assembly …. will not have their compensation or
seniority calculation date affected.
(Jt. Exh. O.) Garrett rejected this proposal. She pointedly disa-
greed with bond shop workers transferring into assembly with no
experience and retaining their wage, which was higher than the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
wage paid to many experienced assemblers. See also (R. Exh. 6,
GC Exh. 4).
Later that day, Triumph made this counter:
 …. the Company … [will] utilize a modified rack and
stack based upon competencies as proposed by the Un-
ion ….
 Layoffs shall be … in accordance with the rack and
stack scoring, based upon an employee’s overall per-
formance rating, with the bottom rated employees laid
off in inverse seniority order by job classification. Sen-
iority shall be determined by the last date of hire.
 Employees, who are affected by layoff, may apply for
an open assembly position at … Red Oak …. Any em-
ployee affected by layoff who applies for an open as-
sembly position, shall be given an offer of employment
for the appropriate assembly labor grade at an hourly
rate of pay commensurate with [their] … assembly …
experience.
 Employees affected by layoff who apply and accept an
offer for an assembly position will retain their senior-
ity without a break in service.
 Employees who accept a position in assembly shall be
on a probationary period for ninety (90) working days.
Should the employee not meet expectations in assem-
bly, the employee shall be terminated.
 Employees who are laid off from either the bond or
NDI classification shall have no rights to re-enter
the[ir] classification ….
(Jt. Exh. P.) This proposal attached a “rack and stack” compe-
tency assessment, which allotted up to 3 points in these areas:
attendance, safety, quality, discipline, and skillset.11 (Id).
i. April 14, 2017—Union’s Third Layoff Proposal
The Union offered this counter:
 Offer … a plant-wide retirement incentive to reduce
… bond shop [staff].
 Employees who are affected by layoff may apply for
an open assembly position at … Red Oak …. Any [laid
off] employee … who applies for an open assembly
position shall be given an offer … at their current rate
….
 Employees affected by layoff who … accept an offer
for an assembly position will retain their seniority and
benefits without a break in service.
 Employees who accept a position in assembly shall be
on a probationary period for ninety (90) working days.
Should the employee not meet expectations … , the
employee shall be placed on indefinite layoff.
In the event that the bond shop has openings within the next
15 months, …:
 [Laid off] employees … may apply for … open …
11 These ratings were mostly based upon objective criteria such as at-
tendance, safety, quality and other disciplines.
position[s] at … Red Oak …. Any employee affected
by layoff who applies for an open bond shop position
shall be given an offer of employment at the bond shop
labor grade and hourly rate of pay … held at the time
of layoff.
 [Laid off] employees … who … accept an offer for a
bond shop position will retain their seniority and ben-
efits without a break in service.
(Jt. Exh. Q.) The Union was concerned about the subjectivity
of using rack and stack criteria.
j. April 18, 2017—Union Information Request
The Union then made this information request:
The Union requests all evaluations of Bond Shop and NDI em-
ployees, the competencies used, [and] who evaluated each em-
ployee ….
(Jt. Exh. R.) This information was provided on April 20, 2017.
(Jt. Exh. U.)
k. April 19, 2017—Bargaining Session
Ducker, Garrett and others attended. (R. Exh. 7.) Triumph
provided Unit attendance cards to the Union, in full satisfaction
of the Union’s March 30 information request. (GC Exh. 5, R.
Exh. 7.) Garrett questioned the several inconsistencies in the
Union’s April 14 proposal and rejected it due to, inter alia, its
failure to fully explain the layoff and recall mechanism.
The Union then offered this counter:
 Employees within the bond shop who have been em-
ployed for less than forty-eight (48) months … shall
be evaluated and laid off under the initial terms and
conditions of employment, excluding active disci-
pline.
 [Laid off] employees … may apply for … open assem-
bly positions at … Red Oak location …. [and] shall be
given an offer of employment at their current rate ….
 [Laid off] employees … who … accept an offer for an
assembly position will retain their seniority and bene-
fits without a break in service.
 Employees who accept a position in assembly shall be
on a probationary period for ninety (90) working days.
Should the employee not meet expectations in assem-
bly based on skill alone, the employee shall be placed
on indefinite layoff.
In the event that the bond shop has openings within the next
15 months, the following shall apply:
 [Laid off] employees … may apply for … open bond
shop position[s] at … Red Oak [and] …. shall be given
an offer … at the bond shop labor grade and hourly
rate … held at the time of layoff.
 [Laid off] employees [who] … accept an offer [in the]
… bond shop … will retain their seniority and benefits
without a break in service.
TRIUMPH AEROSTRUCTURES, VOUGHT AIRCRAFT DIVISION 7
(Jt. Exh. S.) Garrett rejected this proposal. She explained that
Triumph could not limit the bond shop layoff to workers with 4
years of service, would not place bond shop employees in lower-
paying assembly positions at their current rates, and would not
create recall rights for transferred bond shop workers, who do
not meet performance expectations. (R. Exh. 7.) The Union then
requested several additional days to bargain and asked that the
layoff be delayed, which Triumph rejected. Garrett averred that,
by this point, the parties had exhausted their layoff approaches,
had reached an impasse, and that continued discourse would be
fruitless. Ducker indicated that additional time could have been
proved useful.
Given Garrett’s declaration of impasse, Triumph advised the
Union that:
[T]he parties have … bargain[ed] and have been unable to
reach … agreement ….
The Company … [will] move forward with its … layoff plan
for the bond shop and will … layoff … twelve (12) … employ-
ees on … April 21, 2017 ….
(Jt. Exh. T.)
l. April 20, 2017—Triumph’s Reply to the Union’s Pending In-
formation Request
On this date, Triumph stated as follows:
Attached please find the rating or all bond shop employees ….
Also attached are the competencies used and the description
hereof.
As far as NDI ratings, the Company has elected not to proceed
with a layoff of NDI employees … [and] evaluations are not
available to provide the Union ….
(Jt. Exh. U.)
m. April 21, 2017—Bond Shop Layoff
Triumph laid off 12 Unit employees from its bond shop. (Jt.
Exh. Z.) The layoff was conducted in accordance with Tri-
umph’s final layoff proposal.
2. Analysis
a. Precedent
An economic layoff decision and its effects are mandatory
bargaining topics, which require notice and an opportunity to
bargain in good faith. See, e.g., McClain E-Z Pack, Inc., 342
NLRB 337 (2004); Toma Metals, Inc., 342 NLRB 787, 787 fn. 1
(2004). This principle remains true, even where a company pre-
viously exercised unlimited discretion before unionization.
See Adair Standish Corp., 292 NLRB 890 fn. 1 (1989), enfd. in
relevant part 912 F.2d 854 (6th Cir. 1990). A bargaining im-
passe cannot be reached where an employer presents a union
with a “fait accompli” regarding a layoff. Dorsey Trailers, Inc.,
327 NLRB 835, 858 (1999), enfd. granted in part and denied in
part 233 F.3d 831 (4th Cir. 2000).
When negotiations for a collective-bargaining agreement are
12 Notably, the GC has not alleged that Triumph improperly separated
layoff bargaining from overall negotiations.
not in progress, an employer must give a union notice of an in-
tended change sufficiently in advance to permit an opportunity
to bargain meaningfully about the change. Bottom Line Enter-
prises, 302 NLRB 373, 374 (1991), enfd. mem. sub nom Master
Window Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994).
While negotiations for a collective-bargaining agreement are on-
going, however, “an employer's obligation to refrain from uni-
lateral 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 bargaining for the agreement as a whole.” Id.
There are exceptions, however, for situations where a union en-
gages in tactics designed to delay bargaining and when economic
exigencies compel prompt action. R.B.E. Electronics of
S.D., 320 NLRB 80, 81 (1995). Moreover, even where a topic
can be carved out of contract negotiations and handled sepa-
rately, the employer must nevertheless provide the union with
notice and an opportunity to bargain. Id. Once it does so, the
employer is permitted to act unilaterally if the union fails to
promptly request bargaining or if the parties, after good-faith
bargaining, reach an impasse. Id. The Board defines the eco-
nomic exigency exception as a heavy one, which requires imple-
mentation when the action is taken or involves an economic
business emergency requiring prompt action. R.B.E. Electronics
of S.D., supra.
In Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd.
sub. nom. Television Artists, AFTRA v. NLRB, 395 F. 2d 622,
(D.C. Cir. 1968), the Board defined impasse as a situation where
“good-faith negotiations have exhausted the prospects of con-
cluding an agreement.” The burden of demonstrating an impasse
rests on the party making the claim. Serramonte Oldsmobile,
Inc., 318 NLRB 80, 97 (1995), enfd. in pert. part 86 F.3d 227
(D.C. Cir. 1996). The question of whether a valid impasse exists
is a “matter of judgment” and among the relevant factors are
“[t]he bargaining history, the good faith of the parties in negoti-
ations, the length of negotiations, the importance of the issue or
issues as to which there is disagreement, [and] the contempora-
neous understanding of the parties as to the state of negotia-
tions.” Taft Broadcasting Co., supra at 478. The commission of
serious, unremedied unfair labor practices precludes a finding of
a valid impasse. See, e.g., Royal Motor Sales, 329 NLRB 760,
762 (1999).
b. Discussion
As an initial matter, the parties properly separated bond shop
layoff bargaining from collective bargaining for the entire agree-
ment. The unanticipated reduction in Bell Helicopter and Gulf-
stream orders in 2016 and early 2017 caused bond shop over-
staffing, which required immediate action. Triumph, therefore,
satisfied its burden of demonstrating an economic exigency re-
quiring immediate redress that could not wait for the finalization
of a collective bargaining agreement that occurred a year later.
See R.B.E. Electronics of S.D., supra.12
Triumph reached a valid layoff bargaining impasse with the
Union and properly implemented its last proposal following this
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
impasse. Several factors demonstrate a good faith impasse. See
Taft Broadcasting, supra. First, the parties enjoy a stable, 50-
year, bargaining history. Triumph affirmed this positive rela-
tionship by voluntarily recognizing the Union in 2014 following
its Red Oak opening and then finalizing contract in 2018 after
good faith bargaining and absent a work stoppage. Second, the
volume of bargaining exchanges demonstrates a valid impasse.
The parties met no fewer than 4 times to negotiate, discussed 7
different written proposals, and exchanged multiple information
requests.13 Third, the breadth of layoff topics covered demon-
strates a legitimate impasse. The parties comprehensively cov-
ered, inter alia, transfers in lieu of layoffs, seniority-based layoff
systems, other layoff ranking systems, recall and separation
rights, voluntary retirement systems, and voluntary separations.
Garrett repeatedly offered reasonable and detailed rationales for
Triumph’s stances, highlighted ambiguities in Union proposals
that could trigger unforeseen labor relations problems, and con-
tinuously asked valid questions to aid her understanding.
Fourth, Triumph’s overall willingness to shift from its opening
position on transfers to a more standardized layoff ranking sys-
tem showed flexibility consistent with good faith bargaining. Fi-
nally, and perhaps most importantly, Triumph’s initial April 5
proposal was abundantly reasonable, and demonstrated a strong
desire to reach agreement. Its opening salvo was to altruistically
solve the overstaffing dilemma by not laying off anyone and only
transferring affected bond shop workers to other departments for
a short duration at their current pay. A proposal of ongoing em-
ployment at the same wage without the gamesmanship of hold-
ing it back until the eleventh hour of negotiations hardly paints
the picture of bad faith. In sum, Triumph acted with fairness
during bargaining, reached a valid impasse, and did not unlaw-
fully implement its last layoff proposal.
CONCLUSIONS OF LAW
1. Triumph is an employer engaged in commerce within the
meaning of §2(2), (6), and (7) of the Act.
2. The Union is a §2(5) labor organization.
3. Triumph did not violate the Act in the manner alleged in
the complaint.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended14
ORDER
The complaint is dismissed.
Dated Washington, D.C. September 30, 2019
13 The GC has not alleged that Triumph failed to reasonably fulfill the
Union’s information requests, which in some cases sought data that of-
fered, at best, only remote bearing on the layoff issues at hand.
14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.