Longo En-Tech Puerto Rico, LLC

National Labor Relations Board - Administrative Judge Opinions

Aug 7, 2020

12-CA-248406 (N.L.R.B. Aug. 7, 2020)

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San Juan, Puerto Rico
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
LONGO EN-TECH PUERTO RICO, LLC
and Cases 12–CA–248406
12–CA–252309
UNITED STEELWORKERS, LOCAL 6871,
AFL–CIO, CLC
Ayesha K. Villegas-Estrada, Esq.,
for the General Counsel.
Carlos E. George-Iguina, Esq.
(O’Neill & Borges, LLC),
for the Respondent.
DECISION
INTRODUCTION
KIMBERLY R. SORG-GRAVES, Administrative Law Judge. On September 16, 2019, United
Steelworkers, Local 6871, AFL–CIO, CLC (Union) filed Case 12–CA–248406 and subsequently
filed Case 12–CA–252309 with Region 12 (Region) of the National Labor Relations Board
(Board). The charges allege that Longo En-Tech Puerto Rico, LLC (Respondent) failed and
refused to bargain in good faith with the Union in violation of Section 8(a)(5) and (1) of the
National Labor Relations Act (Act) by: failing and refusing to meet and bargain at reasonable
times; informing the Union that Respondent would select the Union’s shop steward as a
condition of reaching a collective-bargaining agreement; informing the Union that as a condition
of continued bargaining the Union must accept Respondent’s proposed drug policy; and
unilaterally laying off an employee, who is also a shop steward, in violation of seniority and
superseniority provisions in the expired collective-bargaining agreement. On February 7, 2020,
the Region issued the consolidated complaint in this matter and on February 14, 2020,
Respondent filed an answer thereto.1
1 At the outset of the hearing, I granted General Counsel’s motion to orally amend the consolidated complaint by
amending par. 4 to allege that Eugene Camali, member, and Jose Saavedra, controller, are agents and supervisors
within the meaning of Sec. 2(11) and (13) of the Act and to remove the word “successive” from par. 5(b). (Tr. 7–9.)
Respondent admitted to each of these allegations as amended. (Tr. 8–9.)
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(GC Exh. 1(j) and (n).)2
I heard this matter on March 10 and 11, 2020, in San Juan, Puerto Rico, and I afforded all
parties a full opportunity to appear, introduce evidence, examine and cross-examine witnesses,
and argue orally on the record. General Counsel and Respondent filed posttrial briefs in support 5
of their positions.
After carefully considering the entire record, including my observation of the demeanor of
the witnesses and the parties’ briefs and the totality of the circumstances, Respondent violated
Section 8(a)(5) and (1) by: (1) failing and refusing to bargain in good faith with the Union at
reasonable times and intervals for the purpose of negotiating a collective-bargaining agreement; 10
(2) unilaterally changing the application of superseniority in layoffs; and (3) unilaterally
changing the application of seniority in extended layoffs.
FINDINGS OF FACT3
Respondent, Longo En-Tech Puerto Rico, LLC, a limited liability corporation with an office
and a place of business in Cataña, Puerto Rico, engages in sewer line repair, lining, and 15
installation. In conducting its operations during the calendar year prior to the issuance of the
complaint, Respondent purchased and received goods valued in excess of $50,000 directly from
points outside the Commonwealth of Puerto Rico. The parties stipulate, and I find, that
Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. Respondent admits and I find that United Steelworkers, Local 6871, AFL–20
CIO, CLC is a labor organization within the meaning of Section 2(5) of the Act. (GC Exh. 1(j)
and (n).)
Based on the foregoing, I find that this dispute affects commerce, and the Board has
jurisdiction of this case, pursuant to Section 10(a) of the Act.
I. THE FACTS25
A. Background
Respondent is owned by the Roberto Longo, Jr and Eugene Camali families. The Longo
family owned various related predecessor employers of Respondent. The Longo family and the
2 Abbreviations used in this decision are as follows: “Tr.” for the Transcript, “Jt. Exh.” for joint exhibits, “GC Exh.”
for the General Counsel’s exhibits, “GC Brief” for General Counsel’s posthearing brief, “R. Exh.” for Respondent’s
exhibits, and “R. Brief” for Respondent’s posthearing brief. Specific citations to the transcript and exhibits are
included where appropriate to aid review and are not necessarily exclusive or exhaustive. My findings and
conclusions are not based solely on the record citations contained in this decision, but rather are based upon my
consideration of the entire record for this case.
3 My findings of fact encompass the credible testimony, evidence presented, and logical inferences from the
evidence. Double D Construction Group, 339 NLRB 303, 303–305 (2003); Daikichi Sushi, 335 NLRB 622, 623
(2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed.Appx. 516 (D.C. Cir.
2003). Credibility findings regarding any witness are not likely to be an all-or-nothing determination and I may
believe that a witness testified credibly regarding one fact but not on another. Daikichi Sushi, 335 NLRB at 622.
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Eugene Camali family have run other unionized companies and have homes in Puerto Rico and
in the continental United States. (Tr. 140–141, 148.) Respondent’s work in Puerto Rico mainly
consists of repairing sewer lines by installing a liner in the existing line. This work is performed
by utilizing robots, cameras, and a vactor, a large vacuum machine, to clean existing sewer lines,
install a flexible plastic liner, and pump in heated water to convert the flexible liner to a solid 5
plastic pipe liner. (Tr. 119–120, 139.) Occasionally, Respondent is awarded additional sewer
line replacement work that requires the installation of new or replacement lines or manholes. (Tr.
142–144.)
The Union has represented the production and maintenance employees of Respondent and
predecessor employers for approximately 30 years. (Tr. 26; 140–141.) Respondent started 10
operating the business in 2013 and reached its first collective-bargaining agreement with the
Union in 2014, which was effective by its terms from October 17, 2014 to October 16, 2017
(CBA).4 (Jt. Exh. 1.)
On August 23, 2017, the Union’s International Representative Yaphet Torres (Torres) sent
Respondent’s president and owner, Robert Longo, Jr. (Longo), a letter requesting dates and a15
location for a negotiation meeting for a subsequent collective-bargaining agreement. The letter
stated that the Union would present its proposed bargaining agreement at that first meeting. (Tr.
27; Jt. Exh. 2.) Thereafter, on several occasions, Torres communicated with Respondent’s
controller, Jose Saavedra (Saavedra), about possible dates but was told that no owner was
available to meet with the Union.520
In September 2017, two devastating hurricanes hit Puerto Rico causing extensive power
outages that affected numerous people for months. (Tr. 81, 141–142.) Despite these difficulties,
Torres negotiated collective-bargaining agreements with two other employers in the months after
the hurricane. (Tr. 82.)
In November, Torres sent Saavedra a proposal to extend the CBA for 3 months, and the 25
parties executed it on December 1, 2017. The agreement extended the CBA until a subsequent
agreement was reached or February 16, 2018, whichever occurred first. Respondent did not
offer any dates for negotiations during this period. The Union proposed another 3-month
extension of the CBA, but Respondent never agreed. (Tr. 27–28; Jt. Exh. 3.)
4 Art. 2 of the CBA sets forth bargaining unit (the unit) as:
consist[ing] of production and maintenance employees that were included in the bargaining unit,
voluntarily recognized by the Company and employed by the employer in its business operations
in Puerto, Rico. Executive, administrative, confidential and professional personnel, office clerks,
guards, supervisors and salespersons as defined in the National Labor Relations Act are excluded
from the appropriate unit.
5 Saavedra did not contradict Torres’ testimony in this regard.
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In the fall of 2017, Respondent was awarded jobs to replace sewer lines destroyed by
hurricane Maria and subsequent storms. On December 6, 2017, Respondent hired Ernesto
Fernandez (Ernesto) 6 to assist with these jobs. Saavedra described Ernesto as a long-term
employee of Respondent’s predecessors which performed sewer line work but not the sewer-
lining work that Respondent performs. Ernesto started in the 1980s and continued with 5
predecessor companies until that operation shut down in 2012. Ernesto originally started with a
predecessor employer as a “laborer,” worked as a “mechanic helper,” and eventually became a
“very good operator.” (Tr. 142; 158–159.)
On August 17, 2018, Torres sent an email to Saavedra noting that Respondent had not agreed
to any of the negotiating dates offered by the Union over the last 9 months. Torres offered 10
multiple bargaining dates in September and October 2018 and set a deadline for response to the
offered dates. Torres also requested information,7 and informed Respondent that the Union had
selected P. Fernandez and Ernesto as stewards and negotiating committee members. (Tr. 29, 31;
Jt. Exh. 4.)
B. The Parties Initiate Bargaining15
On October 4, 2018, the parties finally held a meeting to discuss the parameters of bargaining.
The meeting was held at Longo En-Tech’s Guaynabo offices from about 10:00 a.m. to 1:00 p.m.
Present for the Union were Local 6871 President Carlos Arocho and Torres. Respondent was
represented by Saavedra and Longo. (Tr. 30.) Respondent asked the Union for the initial
meeting to occur without members of the Union’s negotiating committee. The parties discussed 20
the rules of negotiation, and the Union identified articles to which they were not seeking
modification. The parties spent approximately an hour discussing an ongoing grievance dispute
over vacation time/pay which became an issue in contract negotiations. (Tr. 86; GC Exh. 2.)
Respondent stated that it wanted language changes in some of the existing articles and changes
to the security guards and vacation provisions. The Union’s priority was health insurance 25
benefits for unit employees. Respondent requested the Union’s proposal for health insurance
benefits. The Union responded that it would discuss the issues with the bargaining committee
members. (Tr. 31–32.)
On October 31, 2018, Torres emailed Respondent the Union’s proposed changes to the CBA
language. (Tr. 33; Jt. Exhs. 5 and 6.) On December 18, 2018, Respondent emailed the Union its 30
counter proposal. (Tr. 34; Jt. Exhs. 7 and 8.) Respondent’s first proposal included proposed
medical benefit plans and an expanded table of job classifications and starting salaries. (Tr. 85,
87–88; Jt. Exh. 26.) In the expired CBA, the only listed job classification was laborer, starting at
$8 per hour. (Jt. Exhs. 1(a) and (b), p. 28.) Along with the expanded list of job classifications,
6 I use Ernesto’s first name instead of his surname, because of the number of Respondent’s employees with the
same surname, including one with the same first initial. To promote privacy for employees who did not testify, I
refer to them by their first initial and surname.
7 The consolidated complaint contains no allegation that Respondent failed to provide the requested information.
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Respondent’s proposal included a list of employees’ seniority dates and certifications and
training. The list does not include any categorization of current job classifications and some
employees had no certifications or training listed. The list also noted the percent at which each
employee’s wage exceeded the $8 initial hourly wage for laborers in the CBA. (Tr. 88; Jt. Exh.
26, pp. 5, 9–10.)5
Thereafter, Torres spoke with Saavedra about scheduling bargaining sessions. They were not
able to agree upon any date. On January 22, 2019, Saavedra emailed Torres offering to meet on
January 24, 2019, to discuss an ongoing grievance concerning vacation pay. Torres responded
by email and agreed to the grievance meeting date and suggesting that they also “take advantage
and set dates for the bargaining.” (Tr. 35–36; Jt. Exhs. 9 and 27.)10
On February 20, 2019, Saavedra emailed Torres offering March 12 or 13, 2019, as possible
dates to meet with only Torres and Arocho without the bargaining committee. The second
meeting concerning bargaining was held March 12 or 13 and Torres, Arocho, Saavedra, Longo,
and Camali attended. Longo introduced Camali and apologized for not being able to stay and
left. (Tr. 37; Jt. Exh. 10.) Camali wanted to bargain, but Torres declined and reminded him that 15
it was at Respondent’s request that the bargaining committee was not there. Torres agreed to
listen to Respondent’s proposal. As Camali went through the written proposal, he made oral
amendments to it. After Camali finished, Torres requested a written proposal with the changes
Camali articulated to share with the bargaining committee, and Camali agreed to provide the
Union with an updated copy. (Tr. 37–38.) 20
On April 24, 2019, Torres emailed Saavedra requesting Respondent’s revised proposal. On
April 25, Saavedra provided it by email.
C. Bargaining Conduct After June 12, 2019
On June 12, 2019, Torres submitted the Union’s counterproposal to Respondent’s April 25
proposal and requested dates to continue bargaining and to sign provisions for which they had no 25
controversy. (Tr. 53–54; Jt. Exhs. 11 and 12.) In response to Torres’ request, the parties
discussed meeting in July when Camali was scheduled to be in Puerto Rico. Despite Camali’s
presence at Respondent’s Puerto Rican facility for at least one day in July, Respondent did not
offer to meet. (Tr. 55; Jt. Exh. 13.)
On July 31, 2019, Torres sent Saavedra an email expressing the Union’s concern about not 30
meeting in July and offering to bargain on 11 dates in August. Saavedra only agreed to bargain
on the last date offered. (Tr. 56; Jt. Exh. 13.)
On August 23, 2019, nearly 2 years after the contract expired, the first negotiation meeting
with the Union’s negotiating committee was finally held. Torres, his assistant Nancy Arizmendi,
Arocho, and Ernesto were present for the Union, and Camali and Saavedra were present for 35
Respondent. At the outset of the meeting starting around 10 a.m. Saavedra told the Union that
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the meeting had to be quick because Camali had a flight later that day. (Tr. 126.) A portion of
the meeting was spent discussing an ongoing arbitration over the vacation pay rate.8 The
vacation pay provision continued to be at issue in negotiations. The Union presented a
counterproposal at 10:28 a.m. and Respondent presented a counterproposal at 10:49 a.m. (Tr. 56,
57, 125; Jt. Exhs. 14 and 15; GC Exh. 2.) 5
Significant issues discussed at the meeting were Respondent’s proposed drug and alcohol
policy and the superseniority provision. (Tr. 57–59, 99–100.) Camali raised the issue of the drug
and alcohol policy and said that there “was not going to be any signature of9 negotiation of any
proposal unless we signed a policy of drugs and alcohol that they needed to be signed.” (Tr. 57,
126; GC Exh. 2.) The Union responded that it was reviewing it.10
The parties moved forward and tentatively agreed on contract provisions from the expired
CBA to which neither parties sought changes and a few changes to provisions to which both
parties agreed.10 Negotiations then turned to the superseniority clause. The Union offered to
limit the number of shop stewards with superseniority to two employees. The Union requested
two such stewards arguing that the nature of the work often requires employees to be at jobsites 15
8 The Union grieved Respondent’s payment of all employees despite their regular hourly rate, the base contractual
rate of $8 per hour for laborers, the only classification of employees listed in the CBA. (Tr. 152–153; Jt. Exhs. 1(a)
and (b).)
9 I note that this is the accurate quote as translated. While not likely the way a person who speaks English as their
primary language would have stated this, from the context I find that the testimony is that Camali refused to sign any
tentative proposal agreements unless the Union signed the drug and alcohol policy proposal.
10 As a result of neither party proposing changes to several provisions and the agreement on some other changes by
both parties, by the end of the August 23 meeting, the parties agreed to the following provisions:
1. Collective Agreement
2. Statement of Purpose
3. Article 1 – Recognition and Contracting Unit
4. Article 2 – Appropriate Unit
5. Article 3 – Union Workshop
6. Article 4 – Deduction of Dues-Check Off
7. Article 7 – Complaints, Grievances, and Arbitration
8. Article 10 – Licenses
9. Article 11 – Safety and First Aid
10. Article 12 – General Provisions
11. Article 13 – Union Representatives
12. Article 14 – Holidays
13. Article 17 – Salaries
(portions setting starting salaries for 11 job classifications and minimum wage increases)
14. Article 20 – Christmas Bonus
15. Article 21 – "No Strikes" and "No Lock-Outs"
16. Article 22 – Benefits and Privileges
17. Article 23 – Handicap Employees (Reasonable Accommodations)
18. Article 26 – Officials of the Local Union
19. Article 27 – Exception
20. Article 28 – Successor Clause
21. Article (illegible) – Additional Payment by Shifts
(Tr. 60, 129–130; Jt. Exh. 16.)
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that are a significant distance from each other. (Tr. 59, 61.) Camali responded that Respondent
wants the contract limited to one shop steward with superseniority and that Respondent would
have to select the employee who is granted superseniority based upon job qualifications. (Tr. 58-
60, 125–126, 154.) The Union representatives told him that he did not have the authority to
select the Union’s stewards. Camali expressed “that he was not obligated to negotiate with [the 5
Union]” and questioned “who is forcing him to negotiate.” (Tr. 59.) Torres responded that he
was obliged to negotiate under the Act. (Tr. 59.) The meeting ended shortly thereafter at
approximately 1 p.m. (Tr. 59, 126, 129; GC Exh. 2.)
On September 9, 2019, as discussed more below, Respondent laid off11 shop steward Ernesto,
one of two shop stewards and bargaining committee members, for a lack of work. (Tr. 62.) On 10
September 12, Torres sent Respondent an email objecting to Ernesto’s layoff and noting that the
other shop steward was in New York, New York, at that time. Torres’ September 12 email also
offered 7 dates in September and 8 dates in October for contract negotiations. (Tr. 62–63; Jt.
Exh. 18.)
On September 16, 2019, the Union filed the original charge in this matter alleging that 15
Respondent had been bargaining in bad faith and had unilaterally changed seniority rights of
employees by laying off Ernesto. (GC Exh. 1(a).)
Receiving no response to his September 12 request for negotiation dates on October 29, 2019,
Torres sent Respondent another email offering 11 dates in November for negotiation meetings.
Saavedra responded by offering to meet only on either November 19 or 20, the last two dates 20
offered. Torres agreed to November 20.
Present on November 20 at the second meeting in which the Union’s full negotiation
committee was invited, were Torres, Arocho, Ernesto, Saavedra, and Respondent’s attorney.
During that meeting Torres told Respondent’s attorney in a sidebar that the Union was willing to
agree to the drug and alcohol policy but hoped for a concession in exchange for agreeing to that 25
provision. (Tr. 69.) Respondent agreed to bring a response to the Union’s medical benefits plan
at the next bargaining meeting. The parties agreed to meet on December 11, 2019, the first date
that Respondent was available.12 (Tr. 69.)
At the third negotiation session on December 11, 2019, Saavedra and Respondent’s attorney
met with Torres, Arocho, Ernesto, and shop steward and committee member P. Fernandez. (Tr. 30
11 Several times in the record, the direct translation of the Spanish term used by a witness is suspension. The totality
of the record reflects that the witnesses were referring to what is commonly referred to as a layoff and not a
discipline suspension.
12 At the November 29, 2019 meeting, the parties agreed to the following provisions:
Article 24 – Working Alone
Article ? – Direct Deposit
Article 24 – Hiring Outside Personnel
(Jt. Exhs. 32(a) and (b).)
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69–70; Jt. Exh. 18.) The Union presented a counterproposal, Respondent explained that the
proposed medical benefit plan was too expensive because the unit is small.13 (Tr. 70; Jt Exhs. 30
and 35.) The meeting lasted about 2-1/2 hours, and the next meeting was scheduled for January
21, 2020. (Tr. 71.)
The fourth negotiation session occurred on January 21, 2020. The same participants, absent 5
P. Fernandez, met for negotiations. The Union presented a proposal and informed Respondent
that it would agree to article 4, management rights as a separate provision without the drug and
alcohol policy. Respondent did not have future negotiation dates. (Tr. 71–72.)
On February 27, 2020, Torres offered to meet for negotiations on nine dates in March. On
March 7, Respondent’s attorney responded that he was available on March 30, but no meeting 10
was confirmed by Respondent’s negotiation team. (Tr. 72–73; Jt. Exh. 20.)
At the time of the hearing the outstanding contract issues were:
1. Whether one or two stewards will have superseniority;
2. The drug and alcohol policy portion of the management rights provision;
3. The vacation policy which is also related to the grievance at issue over the vacation 15
policy;
4. Wages, including overtime distribution and annual increases;
5. Medical benefit plan;
6. The effective dates of the new contract.
(Tr. 96–98.) The outstanding contract proposals have been discussed in bargaining during at 20
least some of the negotiation meetings. Many of these disputes were evident from the outset of
negotiations. (Tr. 98–99.)
D. The Layoff of Ernesto
Ernesto worked for Respondent for about 2 years as a heavy equipment operator and truck
driver on jobs awarded to Respondent after hurricane Maria. (Tr. 112–113.) Some of these jobs25
required more use of heavy equipment than its typical sewer cleaning and relining work. (Tr.
142–143.) Ernesto worked at this jobsite and several others in various municipalities in Puerto
Rico. (Tr. 114.) Ernesto and several of his relatives have a long history of working in this
industry for Respondent and its predecessors. (Tr. 117–118.)
On September 11, 2019, Ernesto’s supervisor called and informed him that he had little work 30
for him and would call to let him know when he had additional work. (Tr. 62, 115.) Ernesto was
called back to work the next week and worked 3 days before being laid off again. (Tr. 115.) On
13 At the December 11, 2019 meeting, the parties agreed to the following provision:
Article 16 – Sick Leave
(Jt. Exhs. 30(a) and (b).)
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September 12, Torres sent Respondent an email objecting to Ernesto’s layoff and noting that the
other shop steward was in New York, New York at that time. On September 13, Saavedra
responded by email that Ernesto was laid off due to lack of work in his job classification and that
shop steward P. Fernandez would return on September 16. (Tr. 62–63; Jt. Exh. 18.)
On September 17, 2019, the Union also filed a written grievance over the layoff of Ernesto5
with Respondent. (Jt. Exh. 21.)
Ernesto returned to work the next Monday, likely September 23, 2019, and worked until
October 24, 2019, before being laid off again. (Tr. 116.) On November 1, 2019, Respondent sent
Ernesto a letter informing him “that due to a Lack of Work, we find ourselves forced to forego of
your services. . . . If a new employment opportunity arises for you, we will be in 10
communication.” (Tr. 117; Jt. Exh. 23.) At the time he testified Ernesto had not been recalled by
Respondent.
On September 24, 2019, Respondent denied the grievance by letter. The letter reiterates
Respondent’s position that Ernesto’s lay off was appropriate because of a lack of work in his job
classification of operator and that P. Fernandez returned on September 16 to represent the unit 15
employees.
Ernesto’s layoff grievance was submitted to arbitration, raising the question of whether under
the CBA Ernesto, an operator, should have been first in line for a layoff due to a lack of operator
work. Respondent is defending the grievance on procedural defenses and contends, in part, that
the grievance is not appropriate for arbitration because the CBA has expired. (Tr. 80; Jt. Exh. 20
33.)
L. Fernandez and H. Fernandez worked for Respondent as carpenters and assistants and were
laid off in December 2019 for lack of work. (Tr. 119.) Assistants deliver materials to carpenters
and help them with work as needed. (Tr. 120.) E. Fernandez, who is trained to operate the vactor
and much of the other heavy equipment that Ernesto had operated, continued to work. Ernesto 25
understood that E. Fernandez had been operating an excavator at the time of the hearing.14 (Tr.
119–121.) Ernesto was not trained to operate the vactor. (Tr. 119–120.) P. Fernandez, the other
union steward, assisted with the operation of heavy equipment but did not have the training of
Ernesto or E. Fernandez. (Tr. 121.) Respondent attached the following list of employees’
seniority dates and certifications and skills to a proposal presented to the Union in the current 30
contract negotiations, which included a proposal for an expanded list of job classifications.
Employee Seniority Date Certification/training
Ernesto 12/06/2017 Heavy equipment operator
P. Carrillo 01/10/2018 Mechanic assistant
14 The basis of Ernesto’s knowledge in this regard is not in the record. Respondent did not assert that Ernesto’s
testimony about the work being performed by E. Fernandez was hearsay, nor did Respondent provide contradictory
evidence. Based thereon, I credit the testimony.
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L. Fernandez 02/05/2018 None listed
H. Fernandez 03/12/2018 None listed
H. Alicea 03/19/2018 None listed
F. Ortiz 05/17/2018 In house vactor & boiler training;
category 9 driver’s license5
E. Fernandez 06/11/2018 In house vactor & boiler training;
heavy equipment operator; category
9 driver’s license
D. Nieves 08/14/2019 None listed
(Jt. Exhs. 17, 24, and 26.)10
E. Relevant CBA Provisions
While I considered the entire CBA in my analysis of whether Ernesto’s layoffs constituted
unilateral changes in violation of Section 8(a)(5) and (1), I reproduce the most relevant portions15
of the CBA here for ease of reference:
ARTICLE 9, SENIORITY:
Section 1: The Company recognizes the principle of employment seniority, which
shall be respected for all purposes, as defined in the following clauses:20
a. Seniority is defined as a worker's service from the date that he or she
started as a Company employee.
b. Any worker shall lose seniority right for the following reasons:25
iii. Suspension (“Layoff”) for a period of more than six (6) months.15
d. In the event of a layoff and recall of personnel, efficiency factors and skills
shall be taken into consideration, but in equal circumstances, the most senior
employee at work shall prevail. If it is an extended layoff, seniority shall be 30
predominant.

e. Once every three (3) months, the Company shall prepare, revise and post
seniority lists by departments and then plant-wide.
35
j. Shop stewards and the Local President shall enjoy super-seniority within their
respective classifications for purposes of employment layoff and recall during the
15 Respondent relies on this provision to support its contention that the term “extended layoff” refers to a layoff of 6
months or more. At hearing Respondent’s counsel asked Torres whether a “standard” layoff is more than 6 months,
and Torres agreed. (Tr. 78.) I find that this question and answer exchange does very little to define an “extended
layoff” as used in sec. 1(d) below. I agree with General Counsel’s assertion that Respondent’s interpretation would
cause the bizarre result of a more senior employee being laid off for 6 months then being brought back to replace
another employee who would them be laid off.
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term of this Collective Bargaining Agreement.16 The Company accepts that the
Union cannot be without union representation within the Company and shall
ensure that this does not occur.
ARTICLE 13, UNION REPRESENTATIVES5
Section 3: It is agreed between the parties that there shall be a Union shop steward
that shall ensure compliance of all the clauses of this Collective Bargaining
Agreement. . . .
10
Section 4: The Union shall be entitled to designate assistant shop stewards on
each project. . . .
ARTICLE 17, SALARIES
15
Section 1: The bargaining parties have agreed on the salary rates that are set forth
below for the different classifications during the term of this Collective
Bargaining Agreement.
Table 1: 20
Classifications: Laborers*17
Classification Starting Salary: $8.0018
16 For ease of reference, I include the other provisions of the CBA containing the phrase “during the term of this
Collective Bargaining Agreement:”
Article 2.3, Appropriate Unit, Section 3
The Company recognizes that any new employment or employment change that is set forth within the
appropriate unit within this Article, not specifically mentioned in it, shall immediately become part of it,
during the term of this Collective Bargaining Agreement.
Article 17, Salaries, Section 1 – listed below
Article 19, Medical Plan and Life Insurance, Section 1
During the term of this collective bargaining agreement, the Company shall pay for an individual coverage
from the Medical Plan to each employee. The employee shall have the option of choosing a family
coverage which shall be administered by the Company, but the employee shall assume the costs of the
difference between the individual coverage and the family coverage.
Article 20, Christmas Bonus
The Christmas bonus shall be paid on or before December 15th and so on during the term of this Collective
Bargaining Agreement.
Article 21, No Strikes and No Lock-outs, Section 1
During the term of this Collective Bargaining Agreement, neither the Union nor any of its members,
Company employees, shall declare nor call for stoppages, strikes, pickets, work delays or interruptions, ["
“no strikes”].
Section 2:
The Company shall not order lockouts ["no lock-outs"] during the term of this Collective Bargaining
Agreement.
Article 29, Validity, Section 3 uses similar language:
During its term, this Collective Bargaining Agreement shall bind the parties' successors and assignees.
17 The CBA lists only the classification of laborers. Saavedra testified that the parties included the asterisk after the
laborers’ classification, because the parties discussed revisiting the classifications of employees after the company
was more established, if necessary. This is corroborated by the language of art. 17, sec. 5. Ultimately, the parties
never revisited the issue while the CBA was still in effect. (Tr. 147–148.)
18 The CBA requires a minimum hourly wage for employees of $8. A review of Respondent’s employees’ hourly
wages shows that 14 employees earn between $8 and $15 and eight employees earn between $15 and $33 per hour.
This same document lists certifications, specialty driver’s licenses, and skills that some of the employees possess.
(Jt. Exh. 32.)
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Section 5: . . . .Upon completing a year and a half of the contract, the Company
and the Union shall discuss the need to create new classifications and salary
scales and if there is such need, the parties agree that these new classifications
shall become part of the appropriate unit.5
Section 6: Employees may voluntarily do work in any occupational classifications
that they are skilled and trained to perform in, as long as there is a vacancy, and
he or she shall be paid the salary scale applicable to the work that he or she is
performing.10
ANALYSIS
A. Duty to Meet and Bargain in Good Faith
Whether a party has bargained in bad faith depends on the totality of its conduct. Richfield
Hospital, Inc., 368 NLRB No. 44, fn. 4 (2019), citing West Coast Casket Co., 192 NLRB 624, 15
636 (1971), enfd. in relevant part 469 F.2d 871 (9th Cir. 1972). Various conduct may evidence
bad faith in the course of contract negotiations. See, e.g., Richard Mellow Electric Contractors
Corp., 327 NLRB 1112, 1018 (1999) (failure to meet and bargain with regularity); NLRB v.
Insurance Agents' International Union, AFL-CIO, 361 U.S. 477, 485 (1960) (attitude of “take it
or leave it”); Radisson Plaza Minneapolis, 307 NLRB 94, 95 (1992) (seeking to retain sole 20
discretion over important terms and conditions of employment); Houston County Electric
Cooperative, 285 NLRB 1213 (1987) (“unilateral changes in mandatory subjects of bargaining,
efforts to bypass the union,” making unreasonable bargaining demands); Charlie's Oil Co., 267
NLRB 764, 769 (1983) (making proposals that lack “the slightest chance of acceptance by a self-
respecting union”); Teamsters Local 122, 334 NLRB 1190, 1254 (2001) (making regressive 25
proposals to frustrate bargaining); Bryant & Stratton Business Institute, 321 NLRB 1007, 1044
(1996) (refusal to promptly provide information requested by the Union and necessary to
bargaining); Whitesell Corp., 357 NLRB 1119, 1179 (2011) (citing various conduct evidencing
bad faith in bargaining).
30
i. Duty to meet and bargain
The basis for finding a violation of Section 8(a)(5) by failing to meet and bargain with
regularity is found in Section 8(d) of the Act, which mandates that parties meet at “reasonable
times.” Although “reasonable times” is not defined in the Act, it is interpreted to require parties 35
to meet for bargaining at reasonable intervals, and without unreasonable delays. Richard Mellow
Electric, supra, at 1018; Fern Terrace Lodge of Bowling Green, 297 NLRB 8 (1989); Teamsters
Local 122 (Busch & Co.), 334 NLRB 1190 (2001); Sparks Nugget, Inc. d/b/a John Acuaga’s
Nugget v. NLRB, 968 F.2d 991, 995 (9th Cir. 1992). “There are no rigid or precise rules setting
forth the number, frequency, or duration of bargaining meetings necessary to satisfy the parties’ 40
obligations under Section 8(d), but the Board looks at factors, such as, inter alia, the number of
meetings, whether a party engaged in dilatory tactics or placed other limits on bargaining, and
whether the other party requested more frequent meetings.” Calex Corp., 322 NLRB 977, 978
(1997), enfd. 144 F.3d 904 (6th Cir. 1998); People Care, Inc., 327 NLRB 814 (1999)
(respondent’s unreasonable refusal to accede to union’s requests for more frequent meetings was 45
evidence of bad-faith bargaining).
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In Rutter-Rex Mfg. Co., 86 NLRB 470, 506 (1949), the Board held that the statutory duty to
bargain “surely encompasses the affirmative duty to make expeditious and prompt arrangements,
within reason, for meeting and conferring.” The Board in Rutter-Rex found a “prima facie” case
that the employer failed to satisfy its duty to bargain, because it “offered no explanation at the 5
hearing for having been able to meet with the [u]nion on only 3 days in more than 5 months.” Id.
A claim of unavailability or a busy schedule does not excuse the failure to meet this duty.
Richard Mellow Elec. Contractors Corp., 327 NLRB 1112, 1116 (1999). See also, Lower Bucks
Cooling & Heating, 316 NLRB 16, 22 (1995) (finding, inter alia, respondent’s cancelling of
bargaining sessions, limiting the duration of meetings, and delaying the scheduling of future 10
meetings indicative of bad-faith bargaining); Barclay Caterers, 308 NLRB 1025, 1037 (1992)
(although union pressed for meetings, employer only agreed to meet four times in 9 months);
and Storer Communications, 294 NLRB 1056, 1095 (1989) (employer only available to meet on
three dates in more than 5 months; union satisfied burden to seek meetings by telling mediator it
was available any time).15
In the instant case, the Union repeatedly offered numerous dates for bargaining, and on each
occasion Respondent either did not respond or agreed to only one of the latest dates offered. The
complaint alleges a violation starting in June 2019, therefore I address Respondent’s actions
from that date forward, but note that Respondent’s conduct before that date was not substantially 20
different. In June 2019, the Union offered to meet in July. Respondent stated that it would
arrange a meeting when Camali visited but failed to do so. The Union offered 11 dates in
August, and Respondent agreed to only the last date. The Union offered 15 dates in September
and October and received no response. The Union offered 11 dates in November and
Respondent agree to only one. Throughout this entire period Respondent never offered dates for 25
negotiations and only negotiated for a few hours each time it met with the Union. Only after the
Union filed the charge alleging bad-faith bargaining did Respondent agree to one bargaining date
in November, December, and January and bargained for only a few hours on each of these days.
As of the March 11, 2020 hearing, Respondent had not confirmed another bargaining date
despite the Union’s offer of dates in March and Respondent’s attorney noting his availability on 30
March 30, again the last date offered.
Respondent contends that the number of provisions on which the parties have reached
tentative agreements refutes the argument that it has breached its duty to meet and bargain. I
note that many of those agreements required no current bargaining because neither party sought 35
to change them from the expired CBA. Only a small portion of the provisions to which the
parties have agreed are new or substantially revised provisions. Furthermore, Respondent’s
argument belies the real possibility that the parties could have reached the same point in
bargaining months earlier if it had agreed to bargain even a couple of days per month for longer
periods of time for any of the months between June 2019 and the hearing. Respondent also40
points to what it contends were unacceptable delays by the Union as evidence that the delays in
bargaining were at least equally caused by the Union. For example, Respondent contends that
the Union failed to provide a counteroffer to its March 2019 proposal until June 12. Respondent
fails to recognize that it did not provide the Union with its proposal as orally modified at the
March meeting until April 25, and only after the Union requested it again. Based upon the 45
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totality of the circumstances,19 the number of dates offered by the Union, and Respondent’s
practice of agreeing to only one of the latest dates and bargaining only for a partial day each
time, I find no merit to Respondent’s arguments that its failure to meet and bargain with the
Union with more regularity and for extended periods of time should be excused. Nor do I find
that by meeting for bargaining 1 day per month in November, December, and January cured5
Respondent’s overall failure to meet and bargain expeditiously. Respondent’s failure to agree to
a meeting after January further evidences its lack of good faith.
Therefore, I find that Respondent’s refusal to meet and confer with the Union at reasonable
times and intervals for the purpose of negotiating a collective-bargaining agreement evidences 10
bad-faith bargaining in violation of Section 8(a)(5) and (1) of the Act.
ii. Statements made during the August 23 meeting

General Counsel contends that Camali’s statements at the August 23 meeting evidence bad 15
faith and constitute violations of Section 8(a)(5) and (1) of the Act. At the meeting, Camali first
insisted upon trying to resolve the ongoing grievance over vacation pay before moving forward
with contract negotiations. Eventually he relented and moved on with negotiations by discussing
Respondent’s long sought-after drug and alcohol policy that Respondent first pursued during
negotiations for the expired CBA. Respondent raised the drug and alcohol policy again in the 20
initial meeting between the parties in preparation for the current negotiations. After expressing
frustration and saying that he was not going to sign off on any tentative contract proposals unless
they had a signed drug and alcohol policy, Camali went forward with negotiations and signed
several tentative agreements to which there was no dispute. Once the parties started negotiating
the superseniority clause, Camali insisted that superseniority would be limited to one employee 25
that he selected. When Torres told him that the Act precluded him from selecting the Union’s
representative, Camali stated that he was “not obligated to negotiate” and questioned who had
the authority to require him to negotiate before ending the approximately 3-hour meeting
because he had a scheduled airline flight.
While Section 8(d) makes it clear that the Act “does not compel either party to agree to a 30
proposal or require the making of a concession,” bad-faith bargaining is often characterized by a
“take it or leave it attitude.” “Although the Board does not evaluate whether particular proposals
are acceptable or unacceptable, it will examine proposals when appropriate and consider
whether, on the basis of objective factors, bargaining demands constitute evidence of bad-faith
bargaining.” Altura Communication Solutions, LLC., 369 NLRB No. 85 (2020). In the instant 35
case, by the time that the parties case reached the August 23 meeting, the Union had more than
once noted its frustration with Respondent’s failure to meet and bargain. This meeting was the
first meeting where contentious proposals were bargained by the parties. During the meeting,
Camali informed the Union that he needed to leave early, insisted on devoting some of his
limited time to discuss an ongoing grievance, threatened to discontinue bargaining each time the 40
19 In assessing the totality of the circumstances, the Board also looks to other actions of an employer such as
unlawful unilateral changes during bargaining to evidence bad faith. Entertech, 309 NLRB 896, 899 (1992)
(unilateral changes in conditions of employment evidence of bad faith); Houston County Electric Cooperative, 285
NLRB 1213 (1987). As discussed more below, Respondent also implemented unilateral changes to employees’
seniority and superseniority rights during this same period.
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15
parties did not agree on a proposal, and ended the session with no commitment as to the next
bargaining date.
Camali’s insistence on a drug and alcohol policy agreement before he would agree to other
provisions must be considered under the totality of the circumstances. Despite prior numerous 5
requests for meeting dates, this was the first actual bargaining session with the full bargaining
committee present, because Respondent had requested their absence at the two prior meetings
that occurred during more than 1-1/2 years since the CBA expired. Camali failed to meet and
bargain the prior month despite his presence at the facility, he agreed to only one date in August,
and he started that meeting by telling the Union that he had to leave by 1 p.m. that afternoon. 10
Camali’s willingness to sign tentative agreements on provisions to which he had no opposition
does not evidence a give and take attitude, when each time that he was confronted with a
disagreement on a contract provision, he expressed a take it or leave it attitude. After that
meeting, Respondent did not agree to another bargaining date until November 20, after the
charges in this matter were filed. Furthermore, as discussed below, Respondent unilaterally 15
changed the superseniority and seniority provisions, which resulted in the layoff of a Union
steward who was also one of only two bargaining committee members. Thus, considering this
statement not in isolation but in the context of all of Respondent’s conduct, I find that it
evidences Respondent’s bad faith.
20
Camali’s insistence on selecting the employee union steward with superseniority is also
problematic. The Board has long recognized that “[t]he right of employees to designate and to
be represented by representatives of their own choosing” is a basic statutory policy set forth in
Section 7 of the Act and a fundamental right guaranteed employees by Section 7 of the Act.
When it is alleged, as here, that an employer is refusing to recognize a designated representative 25
of its employees, especially for a matter of such obvious importance to employees as processing
grievances, it is not simply a matter of contract interpretation but rather an alleged interference
with a basic statutory right of employees that this Board is entrusted with protecting.” Native
Textiles, 246 NLRB 228, 229 (1979). In Oates Bros., Inc., 135 NLRB 1295, 1296–1297 (1962),
the employer insisted in contract negotiations on having veto power over the selection of a union 30
steward in response to the union’s proposal that the steward be granted superseniority. The
Board in Oates Bros. found insufficient the employer’s argument that its selection of the steward
was “necessary to ensure that an adequate work force was available in the event of a layoff.” Id.
In finding no special circumstances or valid business justification considering a totality of the
circumstances to warrant the employer’s stance, the Board found that the employer violated 35
Section 8(a)(5) and (1) by its insistence on its proposed contract provision. Id.
Here, I find that Respondent failed to provide evidence of a special circumstance or valid
business justification to necessitate its insistence on selecting the Union’s steward(s) who would
have superseniority. As the Board found in Native Textiles, the selection of union stewards that 40
assist in the processing of grievances, as in this case, is a basic statutory right of employees. An
argument that in a future layoff Respondent may prefer or even eventually need to retain certain
employees is insufficient to establish special circumstances or valid business justification for
impinging on that fundamental right now. The impetus for seniority provisions in contracts is to
reward employees for years of service and to prevent employers for selecting individuals for 45
layoff or other advantages based upon personal preference factors. Superseniority provisions go
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one step further to ensure that the union steward selected by the employees remains to represent
them. The general preference of employers to select which employees they retain in a layoff is
not a special circumstance. Respondent contends that it must retain all employees with vactor
training, but its crews consist of unskilled and skilled employees. As the Board found in Oates
Bros., an employer’s argument that it must select the stewards granted superseniority “to ensure 5
that an adequate work force was available in the event of a layoff,” does not constitute a special
circumstance. Supra, at 1296–1297. Furthermore, Respondent’s argument that it correctly
discharged Ernesto based upon his job classification is inconsistent with its argument that it must
maintain employees in certain job classifications regardless of the work left to be performed.
10
Considering the totality of the circumstances, I find that Respondent evidenced its failure to
bargain in good faith during the August 23 meeting, by Camali telling the bargaining committee
that he would not sign any tentative agreements without first reaching an agreement on a drug and
alcohol policy, and by insisting that the appointment of a shop steward be subject to its approval.
15
Accordingly, I find that Respondent’s overall bad faith negotiation conduct from June 12
through the date of the hearing violated Section 8(a)(5) and (1) of the Act.
B. The Layoffs of Ernesto Fernandez
20
An employer violates Section 8(a)(5) and (1) of the Act when it unilaterally changes the
wages, hours, or other terms and conditions of employment of bargaining unit employees
without first providing the collective-bargaining representative with notice and a meaningful
opportunity to bargain. NLRB v. Katz, 369 U.S. 736 (1962); Ivy Steel & Wire, Inc., 346 NLRB
404, 419 (2006); Mercy Hospital of Buffalo, 311 NLRB 869, 873–874 (1993); Associated 25
Services for the Blind, 299 NLRB 1150, 1164–1165 (1990). This is a requirement even if at the
time of the change the collective-bargaining agreement between management and the union has
expired and a new agreement has not been completed. Litton Financial Printing Division v.
NLRB, 501 U.S. 190, 198 (1991).
i. Superseniority provision30
The complaint alleges and General Counsel asserted at hearing that Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally changing the status quo of employees’
superseniority rights under the expired CBA by laying off Ernesto before other less-senior
employees. Respondent contends that it complied with the seniority and superseniority
provision’s requirement that layoffs be done by least seniority based upon job classifications, and 35
therefore, did not engage in a unilateral change without giving the Union notice and an
opportunity to bargain. The Union contends that there is only one job classification under the
contract and that E. Fernando was not the least senior.
General Counsel agrees with the Union’s position with regards to the seniority provision, but
General Counsel in posthearing briefing reversed positions on the allegation that Respondent40
unlawfully unilaterally changed the stewards’ superseniority. General Counsel asserts that the
Board should overrule its application on the contract waiver standard in Finley Hospital, 362
NLRB 915 (2015) to determine the post-contract expiration status quo that an employer must
maintain. General Counsel contends that the plain language of the CBA’s superseniority clause
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17
establishes that the clause terminated with the CBA, privileging Respondent to unilaterally
discontinue granting superseniority. (GC Br. at p. 30–35.) Six days after General Counsel
submitted its brief, the Board held in Nexstar Broadcasting, Inc. d/b/a KOIN-TV, 369 NLRB No.
61, slip op. at 3 (2020) that provisions in an expired collective-bargaining agreement, allowing
employers to make certain unilateral changes during the term of a contract, do not cover post-5
expiration unilateral changes unless the agreement contained language explicitly providing that
the relevant provision would survive contract expiration. Id. The Board explained further that
“[a]lthough the parties may agree that a particular provision survives the contract's expiration,
any such agreement must be stated ‘in explicit terms.’” Id. Because of recent changes in the
applicable standards, I provide a brief overview of the relevant case history below. 10
In NLRB v. Katz, 369 U.S. 736 (1962), the Supreme Court held that when an employer,
without first bargaining to impasse, unilaterally changes a term or condition of employment
constituting a mandatory subject of bargaining it violates Section 8(a)(5) of the Act. Id. at 743.
The prohibition against unilateral changes applies during the term of a collective-bargaining15
agreement and after the agreement expires. See Litton, 501 U.S. at 198. Even when a contractual
right does not survive contract expiration, the statutory right typically does. The contractual
rights “are no longer agreed-upon terms; they are terms imposed by law, [under Section 8(a)(5)],
at least so far as there is no unilateral right to change them.” Id. at 206. Thus, “an expired
contract has by its own terms released all its parties from their respective contractual obligations, 20
except obligations already fixed under the contract but as yet unsatisfied.” Id. Although the
parties may agree that a particular provision survives the contract's expiration, any such
agreement must be stated “in explicit terms.” Id. at 207.
Superseniority is a mandatory subject of bargaining that cannot generally be changed without 25
giving a union notice and an opportunity to bargain. See Bethlehem Steel Co., 136 NLRB 1500,
1502 (1962), enf. denied on other grounds sub nom. Marine & Shipbuilding Workers v. NLRB,
320 F.2d 615 (3d Cir. 1963); Proof Co., 115 NLRB 309 (1956), enfd. 242 F.2d 560 (7th Cir.
1957). Except for a few special subjects of bargaining of which superseniority is not included,
the requirement to bargain before unilaterally changing mandatory subjects remains applicable 30
after contract expiration. Frankline, Inc., 287 NLRB 263, 264 (1987); Indiana & Michigan
Electric Co., 284 NLRB 53 (1987).
The Board has long recognized that a union can waive or contractually relinquish the right to
bargain about a mandatory subject post-contract expiration. What has recently changed is the 35
evidence needed to establish that a union waived or relinquished its right to receive notice and
opportunity to bargain. Finley Hospital, supra at 918; Nexstar, supra at slip op. at 2. In Finley
Hospital, the union alleged that the employer unlawfully discontinued yearly pay raises after the
1-year collective-bargaining agreement expired. The contract provision entitled, “Base Rate
Increases During Term of Agreement,” stated that “[f]or the duration of this Agreement, the 40
Hospital will adjust the pay of Nurses on his/her anniversary date.” Id. at 918. The Board
reasoned that “[i]t follows that language in a collective-bargaining agreement may intentionally
preclude a provision from having any contractual force after expiration of the contract. But
given the employer’s statutory duty to maintain the status quo postexpiration, such language will
not permit a unilateral change of a term established by the same contract unless it also amounts 45
to a clear and un-mistakable waiver of the union’s separate statutory right to maintenance of the
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status quo.” Id. at 918. Because the contractual language did not mention post-contract
expiration conduct, the Board found that it could not “be read as a clear and unmistakable waiver
of a statutory right elementally different from the contractual right to which the language does
refer.” Id. The Board found that the contract language “limits the effective period of the
contractual obligation but does not address the employer’s postexpiration conduct or obligations 5
or authorize unilateral employer action of any kind.” Id. Thus, the employer failed to prove a
waiver of its obligation to maintain the status quo established by the expired contract.20 Id.
Recently, the Board adopted the contract coverage standard with its emphasis on assessing the
plain language when analyzing parties’ collective-bargaining agreements. MV Transportation, 10
Inc., 368 NLRB No. 66 (2019). In Nexstar, the Board applied the contract coverage standard’s
plain language analysis and not the clear and unmistakable waiver standard used by the Board in
Finley Hospital to assess the lawfulness of unilateral changes made post-contract expiration.
The Board summarized the application of that standard by stating that “the Board will ‘examine
the plain language of the collective-bargaining agreement to determine whether action taken by 15
an employer was within the compass or scope of contractual language granting the employer the
right to act unilaterally.’ In conducting that inquiry, the Board will apply ‘ordinary principles of
contract interpretation.’ ‘Where contract language covers the act in question, the agreement will
have authorized the employer to make the disputed change unilaterally, and the employer will
not have violated Section 8(a)(5).’” Id., slip op. at 2, quoting MV Transportation, supra (internal 20
citations omitted).
The issue in Nexstar was whether the expired contract’s management-rights clause privileged
the employer to make post-contract expiration unilateral changes to driver-background checks
and posting of work schedules. The Board held that “[a]lthough the status quo is ascertained by 25
looking to the substantive terms of the expired contract, the obligation to maintain the status quo
arises out of the Act, not the parties’ contract.21 After a contract expires, “terms and conditions
continue in effect by operation of the NLRA. They are no longer agreed-upon terms; they are
terms imposed by law.” Id. (emphasis in the original, internal citation omitted). The Board
explained “that provisions in an expired collective-bargaining agreement do not cover post-30
expiration unilateral changes unless the agreement contained language explicitly providing that
the relevant provision would survive contract expiration.” Id. The Board also noted that
“duration is an important limit to any contractual right or obligation” and that the contract
coverage standard “respects the agreement reached by the parties as expressed in the plain
20 The Board noted in Finley Hospital that specific evidence in a contract will signal the parties intent for certain
terms of employment to cease with the contract. Supra at 918. For example, in Cauthorne Trucking, 256 NLRB
721, 722 (1981), enf. granted in part, denied in part 691 F.2d 1023 (D.C. Cir. 1982), the Board found that the
following contractual language privileged the employer to discontinue payments to the union’s pension trust fund on
behalf of employees: “at the expiration of any particular collective bargaining agreement . . . any Company’s
obligation under this Pension Trust Agreement shall terminate unless, in a new collective bargaining agreement,
such obligation shall be continued.”
21 In PG Publishing Co., Inc. d/b/a Pittsburgh Post-Gazette, 368 NLRB No. 41, slip op. at 3 (2019), the Board noted
that It is well established that “the status quo is . . . defined by reference to the substantive terms of the expired
contract.” Relying upon the expired contract’s language requiring the employer to cover health benefit premium
increases up to 5% starting on two specific dates during the term of the contract, the Board found that the employer
did not have to cover additional increases post-contract expiration to maintain the status quo.
JD−31−20
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language of the contract, including ‘the limits—or absence of limits—upon which the parties
themselves have agreed.’” Id. at slip op. at 3, citing, MV Transportation, supra, slip op. at 10.
In Nexstar, the management’s rights provision of the expired collective-bargaining agreement
did “not contain language extending the rights of unilateral action to post-expiration conduct or 5
otherwise beyond the term of the contract. Indeed, they do not mention post-expiration conduct
at all.” Id. at slip op. at 4. Therefore, “under Katz, the Union has a statutory claim to
continuance of the status quo with respect to those practices.” (Emphasis in the original.) Id. I
note that despite using the contract coverage standard plain language analysis discussed by the
Board in Nexstar, it like the Board in Finley Hospital, specifically considered whether the 10
language of the contract mentioned post-contract conduct.
In the instant case, the superseniority clause states that stewards “shall enjoy super-seniority
within their respective classifications for purposes of employment layoff and recall during the
term of this Collective Bargaining Agreement. The Company accepts that the Union cannot be 15
without union representation within the Company and shall ensure that this does not occur.” Jt.
Exh. 1, article 9—seniority, section 1(j).) The provision plainly establishes that the contractual
right is limited to the “term of this Collective Bargaining Agreement” (the phrase). Thus, the
question here is whether the phrase, “during the term of this Collective Bargaining Agreement,”
constitutes an “explicit” agreement to adjust post-expiration conduct, and therefore, the status 20
quo required by the Act.
General Counsel contends that the plain language of the provision establishes that
superseniority rights ended with the contract allowing Respondent to unilaterally discontinue
superseniority rights without unlawfully adjusting the post-contract status quo. General Counsel 25
in brief adds qualifying language, such as “only” and “limited to,” to the phrased “during the
term of this Collective Bargaining Agreement,” that is not contained in the language of the
expired CBA. (GC Br. at p. 31.) Such qualifiers have no place in assessing the meaning of the
language of the CBA.
30
While the management-rights clause in Nexstar contained no language referencing a time
period, the superseniority clause here states that the stewards “shall enjoy superseniority . . .
during the term of this [CBA].” The phrase, “term of this Collective Bargaining Agreement,”
speaks of what happens during the term of the agreement, which establishes the status quo at the
time of the contract’s expiration. The following sentence explicitly states that Respondent 35
recognizes the Union need for “union representation within the Company” without giving any
time restrictions. CBA article 13, union representation, sections 3 and 4, contains similar
language stating Respondent’s commitment to allow the Union to maintain representatives at the
company, including at each project. I find that the superseniority provision of the CBA does not
contain explicit language plainly evidencing the discontinuance of status quo superseniority 40
rights post-contract expiration.
I found no other provision directly relevant to the determination of whether superseniority
provision became part of the post-contract expiration status quo. The CBA contains the same
phrase, “during the term of this Collective Bargaining Agreement,” in six other provisions and a 45
similar phrase in a seventh provision. A couple of these provisions, such as the no-strike and no-
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20
lockout provisions, are constructs of the CBA and without an explicit agreement to the contrary,
expire with the contract. Frankline, supra at 264; Indiana & Michigan Electric, supra at 53.
Other provisions containing the phrase provide employee terms and conditions of employment,
such as medical and life insurance, holiday pay, and salary rates, that absent an explicit
agreement for them to terminate become part of the status quo terms and conditions of 5
employment post-contract expiration. Id. The record contains no evidence that either of the
parties have asserted that these benefits have not continued as part of the status quo, evidencing
that the plain meaning of the phrase does not affect the post-contract status quo.
Based upon the plain language of the superseniority clause and of the entire CBA, I find that 10
the language of the CBA does not privilege Respondent to unilaterally change the status quo of
superseniority rights established by the CBA post-contract expiration.
Instead of contending that superseniority expired with the contract, Respondent relies upon
the portion of the super-seniority clause that states that stewards “shall enjoy super-seniority 15
within their respective classifications for purposes of employment layoff and recall” to support
its argument that it complied with the status quo created by the CBA. When drafting the CBA,
the parties agreed to a single classification of laborers with an agreement to revisit the issue later,
if necessary. Other provisions of the CBA refer to classifications and skills of employees.
Ultimately the parties never revisited the issue during the term or the extension of the CBA. The 20
record contains no evidence of other layoffs or other actions taken by the Employer that
established a past practice of recognizing other distinct job classifications. To the contrary,
Respondent paid all employees for vacation time based upon the starting salary rate for a laborer,
giving rise to the ongoing grievance concerning employees’ vacation pay. At the same time, no
party disputes that Respondent tended to assign work to employees based upon skills they have 25
obtained. For example, Ernesto is a skilled machine operator and mostly worked in that capacity
for Respondent. Employee wages varied significantly apparently based upon their skills.
Notwithstanding that it might be reasonable in other circumstances to consider everyday
operations and refer to job classifications in a CBA when making layoff decisions, here the 30
Respondent’s reasoning is inconsistent with the facts and is premised upon the unilateral
implementation of job classifications. The plain language of the CBA lists only one
classification and contains an agreement to revisit the issue of job classifications before
implementing any delineation, but the parties never did. The fact that the parties contemplated
taking such action does not negate Respondent’s duty to give the Union notice and opportunity 35
to bargain to an agreement or impasse before implementing any additional classifications and/or
taking actions based thereon.22
Therefore, I find that the plain language of the contract establishes superseniority as a part of
the post-contract expiration status quo and that the plain language of the contract lists only one 40
job classification. Any implementation of additional classifications and actions taken based
upon those classifications by Respondent, including the layoff of Ernesto by job classification
22 Respondent submitted evidence of negotiating and a tentative agreement for additional classifications in a
successor collective-bargaining agreement, but possible changes as a result of the current contract negotiations is not
relevant to determining the status quo established by the CBA.
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21
before other less senior employees, constitutes an unlawful unilateral change in violation of
Section 8(a)(5) and (1).

ii. The general seniority provision
5
The complaint also alleged that Respondent unlawfully changed employees’ general seniority
rights established by article 9 of the expired CBA by laying off Ernesto, while retaining less-
senior employees. Respondent again asserts that it appropriately laid off Ernesto based upon his
job classification of machine operator. As discussed above, the superseniority provision refers to
job classifications, but the general layoff provisions in article 9, Section 1(d) states that 10
“efficiency factors and skills shall be taken into consideration, but in equal circumstances, the
most senior employee at work shall prevail. If it is an extended layoff, seniority shall be
predominant.” Respondent paid Ernesto a significantly higher hourly wage to operate machinery
than most of the less senior employees received. Although in a different context, article 17,
section 6 of the CBA contemplates the possibility of a more skilled employee performing less 15
skilled work and being “paid the salary scale applicable to the work that he or she is
performing.”
As discussed above, Respondent cannot rely upon any delineation of job classifications that it
unilaterally established to justify its layoff of Ernesto, nor is there any evidence of a past practice20
concerning layoffs or the use of job classifications other than laborer. Therefore, the question is
whether Respondent violated the status quo established by the layoff provision of the CBA. The
plain language of the CBA’s article 9, Section 1(d) grants Respondent some discretion to
consider efficiency factors and skills in determining who to layoff in the case of temporary work
shortages, but in cases of extended layoff then “seniority shall be predominant.”25
Addressing the two short layoffs of Ernesto, I find that the status quo established by the CBA
allowed Respondent some flexibility to consider efficiency and skills in determining who to lay
off for short periods. For the most part, Ernesto worked as a machine operator for Respondent.
Ernesto was a long-term employee of Respondent’s predecessors and Respondent is aware of his 30
extensive training in the industry from laborer, to mechanic helper, to a skilled machine operator.
The only skill Ernesto had not acquired was operating the vactor and four other less senior
employees had no vactor training. One of the four worked as a mechanic’s assistant, which
Ernesto has experience performing. The record contains no evidence that these less-senior
employees had skills that Ernesto does not possess. 35
Ernesto’s first two layoffs were short in duration, and in each case, Respondent was able to
assign machine operator work to him within a few days. The record does not contain evidence of
other less senior employees performing significant machine operator work during the two short
layoffs. Retaining Ernesto would have caused Respondent to shift him to another type of work 40
and lay off the employee doing that work, only to reverse course a few days later. Based on the
CBA language affording Respondent the right to consider efficiency factors and the skills of
employees in making short-term layoff decisions, I find that the two short layoffs of Ernesto
were lawful.
45
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22
The initial consideration in evaluating whether Ernesto’s third layoff constituted an unlawful
unilateral change requires an analysis of the term “extended layoff.” Contrary to Respondent’s
assertion that the CBA defines an “extended layoff” as a layoff of more than 6 months, I find no
support for that contention in the CBA. In the absence of a specific definition of extended
layoff, I must rely upon the common meaning of that term and the facts in this case. By the date 5
of the hearing, Ernesto had been continuously laid off from October 24, 2019 through the date of
the hearing, with no expectation of being recalled. While I decline to determine the minimal
time period that constitutes an extended layoff, I find Ernesto’s layoff exceeded the time
necessary to fulfill the plain meaning of an extended layoff, especially when there was no plan to
recall him after more than 4-1/2 months. Also, Respondent made clear in its November 1, 2019 10
letter that Ernesto was being laid off for an extended time period, if not permanently. I find no
other reasonable interpretation of the statement in his layoff letter “that due to a Lack of Work,
we find ourselves forced to forego of your services. . . . If a new employment opportunity arises
for you, we will be in communication.” Accordingly, I find that his third layoff was an extended
layoff and Respondent was required to make employees’ seniority the predominant23 factor in 15
determining who to retain or layoff.
Ernesto’s seniority should have predominated over considerations of efficiency and skills in
determining whether he would be laid off for an extended period, but the term predominate does
not fully preclude all other considerations. Even giving some deference to the various skills of20
employees, Respondent has not established that considerations of skills and efficiencies required
the retention of other less senior employees that outweighs Ernesto’s priority as a more senior
employee. Respondent contends that it should be allowed to retain less-senior employees who
were trained to operate the vactor. At least three employees more senior than Ernesto possessed
that skill, and other employees less senior than Ernesto that were not trained to operate the vactor 25
but remained employed after Ernesto was laid off. While the record only contains hearsay
evidence that machine operator work was available after Ernesto’s extended layoff, even if such
work was not always available, his seniority should have predominated. Furthermore, the CBA
contemplates Respondent offering employees lower paid work, which it did not offer to Ernesto.
30
Based upon the status quo established by the CBA as a whole and specifically the language of
article 9, section 1(d), I find that the layoff of Ernesto on October 24, 2019, constituted an
unlawful unilateral change in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW35
1. Longo En-Tech Puerto Rico, LLC (Respondent) is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. United Steelworkers, Local 6871, AFL–CIO, CLC (Union) is a labor organization within
the meaning of Section 2(5) of the Act.
3. Since about June 12, 2019, Respondent violated Section 8(a)(5) and (1) of the Act by 40
failing and refusing to bargain in good faith with the Union as the collective-bargaining
representative of the unit employees.
23 The Marriam-Webster Dictionary defines predominant as “having superior strength, influence, or authority:
prevailing.” https://www.merriam-webster.com/dictionary/predominant (June 2020).
JD−31−20
23
4. Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing the terms
and conditions of employment for unit employees with regard to their superseniority
rights.
5. Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing the terms
and conditions of employment for unit employees with regard to their seniority rights.5
6. The aforementioned unfair labor practices by the Respondent affected commerce within
the meaning of Section 2(6) and (7) of the Act.
7. Respondent has not violated the Act except as set forth above.
REMEDY10
Having found that the Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent, having failed to bargain collectively and in good faith with the Union shall be 15
ordered, on request, to bargain in good faith with the Union as the exclusive collective-
bargaining representative of the employees in the appropriate unit concerning terms and
conditions of employment and, if an understanding is reached, embody the understanding in a
signed collective-bargaining agreement.
The Respondent, having unilaterally implemented changes in the terms and conditions for its unit 20
employees’ seniority and superseniority rights as they apply to layoffs, shall, upon the Union’s
request, rescind the changes and restore the status quo ante, and shall maintain the status quo
ante in effect until the parties have bargained to agreement or a valid impasse.
The Respondent having made unlawful unilateral changes to unit employees’ seniority and
superseniority rights as they apply to layoffs, shall offer affected employees, including but not 25
limited to Ernesto Fernandez, full reinstatement to their former job or, if that job no longer exist,
to substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
The Respondent shall make unit employees whole, including but not limited to Ernesto
Fernandez, for any loss of earnings or other benefits suffered as a result of the unlawful 30
unilateral implementation of changed terms and conditions of employment.
The make-whole remedy shall be computed in accordance with Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), or F. W. Woolworth Co., 90 NLRB 289
(1950), as appropriate, with interest at the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).35
In accordance with King Soopers, Inc., 364 NLRB No. 93 (2016), Respondent shall compensate
affected unit employees wrongfully laid off pursuant to its unilateral changes for search-for-work
and interim employment expenses regardless of whether those expenses exceed their interim
earnings. Search-for-work and interim employment expenses shall be calculated separately from
taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded 40
daily as prescribed in Kentucky River Medical Center, supra. In accordance with Don Chavas,
LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), the Respondent shall compensate
JD−31−20
24
affected employees for the adverse tax consequences, if any, of receiving lump sum backpay
awards, and, in accordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), the
Respondent shall, within 21 days of the date the amount of backpay is fixed either by agreement
or Board order, file with the Regional Director for Region 12 a report allocating backpay to the
appropriate calendar year. The Regional Director will then assume responsibility for 5
transmission of the report to the Social Security Administration at the appropriate time and in the
appropriate manner.
The Respondent shall be ordered, before implementing any changes in wages, hours, or other
terms and conditions of employment of unit employees, to notify and, on request, bargain
collectively and in good faith with the Union as the exclusive collective-bargaining 10
representative of employees in the following bargaining unit, which:
consists of production and maintenance employees that were included in the
bargaining unit, voluntarily recognized by the Company and employed by the
employer in its business operations in Puerto Rico. Executive, administrative,
confidential and professional personnel, office clerks, guards, supervisors and 15
salespersons as defined in the National Labor Relations Act are excluded from the
appropriate unit.
In the conclusion to her brief counsel for the General Counsel requests that as part of the remedy
for the violations found, Respondent should be ordered to commit to a bargaining schedule with 20
the Union of 15 hours per week. (GC Br. at 35-38.) I agree that the Respondent's violations of
the Act are serious, but I am unconvinced that the requested extraordinary remedy is warranted.
The cases where the Board has imposed a bargaining schedule remedy involve egregious
misconduct by the employer that is substantially different than the misconduct confronted here.24
The record contains no evidence that Respondent is a recidivist. Although not nearly frequently 25
enough, Respondent did meet and bargain on a few occasions, reached some tentative
agreements on a few provisions to which changes or disputes existed between the parties, and
provided information requested by the Union. While Respondent violated the Act by its dilatory
bargaining practices and in other manners, as set forth herein, its conduct does not warrant
24 Gimrock Construction, 356 NLRB 529, 529 (2011) (bargaining schedule remedy imposed where employer had
refused to meet and bargain with union for over 11 years including over four years after enforcement of the Board's
order by the Court of Appeals), enforcement denied in relevant part on other grounds, 695 F.3d 1188 (11th Cir.
2012); Profession Transportation, Inc., 362 NLRB 534, 535 (2015) (bargaining schedule imposed where employer
cancelled seven consecutive bargaining sessions and insisted to impasse that any collective-bargaining agreement
reached would be nullified and the employer would no longer have to recognize the union if the Supreme Court
affirmed the D.C. Circuit's decision in NLRB v. Noel Canning); Thermico Inc., 364 NLRB No. 135, slip op. at 3 fn.
4 (2016) (bargaining schedule imposed because 11 months passed since the union's first bargaining request, the
respondent refused or did not respond to the union's bargaining requests, and the respondent abrogated its obligation
to bargain pursuant to a bilateral settlement); Camelot Terrace, 357 NLRB 1934, 2005 (2011)(bargaining schedule
imposed because where respondent engaged in flagrant and “aggravated unlawful” behavior and failed to comply
with the bargaining schedules in two settlement agreements), enforcement granted in relevant part, 824 F.3d 1085
(D.C. Cir. 2016); All Seasons Climate Control, Inc., 357 NLRB 718, 718 fn. 2, 733 (2011) (bargaining schedule
imposed due to egregious misconduct that included the respondent soliciting and encouraging petitions to decertify
the union, withdrawing recognition from the union based on one of the petitions that the respondent solicited, and
failing to provide information that the union requested), enfd. 540 Fed. Appx. 484 (6th Cir. 2013).
JD−31−20
25
extraordinary remedies. A traditional bargaining order will put Respondent on notice that it must
meet for bargaining in good faith at reasonable intervals, and without unreasonable delays.
The Respondent shall post an appropriate informational notice, as described in the attached
Appendix. This notice shall be posted25 at the Respondent's facility wherever the notices to
employees are regularly posted for 60 days without anything covering it up or defacing its 5
contents. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means. In the
event that during the pendency of these proceedings the Respondent has gone out of business or
closed any facility involved in these proceedings, the Respondent shall duplicate and mail, at its 10
own expense, a copy of the notice to all current employees and former employees employed by
the Respondent at any time since June 12, 2019. When the notice is issued to the Respondent, it
shall sign it or otherwise notify Region 12 of the Board what action it will take with respect to
this decision.
On these findings of fact and conclusions of law and on the entire record, I issue the following 15
recommended26
ORDER
The Respondent, Longo En-Tech Puerto Rico, LLC, Cataña, Puerto, Rico, its officers, agents,
successors, and assigns, shall
1. Cease and desist from20
(a) Failing and refusing to bargain in good faith with United Steelworkers, Local 6871,
AFL–CIO, CLC (Union) as the exclusive-bargaining representative of the employees in
the bargaining unit.
(b) Unilaterally changing the terms and conditions of employment of its unit employees
by changing the application of seniority and superseniority as applied to layoffs, without 25
first bargaining with the Union to a good-faith impasse.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act
(a) On request, bargain in good-faith with the Union as the exclusive collective-30
bargaining representative of the employees in the following appropriate unit concerning
terms and conditions of employment and, if an understanding is reached, embody the
understanding in a signed agreement:
the unit consists of production and maintenance employees that were 35
included in the bargaining unit, voluntarily recognized by the Company
and employed by the employer in its business operations in Puerto, Rico.
Executive, administrative, confidential and professional personnel, office
25 See the below order for adjustments to the posting requirements as a result of temporary closures caused by
Covid-19.
26 If no exceptions are filed as provided by Sec. 102.48 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
JD−31−20
26
clerks, guards, supervisors and salespersons as defined in the National
Labor Relations Act are excluded from the appropriate unit.
(b) On request by the Union, rescind the changes in the terms and conditions of
employment for its unit employees to their seniority and superseniority rights with regard 5
layoff order that were unilaterally implemented on September 11 and October 24, 2019.
(c) Within 14 days from the date of this Order, offer employees affected by the unilateral
changes, including but not limited to Ernesto Fernandez, full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously enjoyed.10
(d) Make affected unit employees, including but not limited to Ernesto Fernandez, whole
for any loss of earnings and other benefits and search for work expenses suffered as a
result of their layoffs, in the manner set forth in the remedy section of this decision.
(e) Compensate affected employees, including but not limited to Ernesto Fernandez, for
the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file 15
with the Regional Director for Region 12, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a report allocating the backpay
awards to the appropriate calendar years for each employee.
(f) Preserve and, within 14 days of a request or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by 20
the Board or its agents all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Post at its Cataña, Puerto Rico facility27 copies of the attached notice marked 25
“Appendix.”28 Copies of the notice, on forms provided by the Regional Director for
Region 12, after being signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be distributed electronically, such as by 30
email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. The
Respondent shall take reasonable steps to ensure that the notices are not altered, defaced,
or covered by any other material. If the Respondent has gone out of business or closed
the facility involved in these proceedings, the Respondent shall duplicate and mail, at its 35
own expense, a copy of the notice to all current employees and former employees
employed by the Respondent at any time since June 12, 2019.
27 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the
notices must be posted within 14 days after service by the Region. If the facility involved in these proceedings is
closed due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notices must be posted within 14 days after
the facility reopens and a substantial complement of employees have returned to work, and the notices may not be
posted until a substantial complement of employees have returned to work. Any delay in the physical posting of
paper notices also applies to the electronic distribution of the notice if the Respondent customarily communicates
with its employees by electronic means.
28 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted
by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.”
JD−31−20
27
Dated, Washington, D.C. August 7, 2020
Kimberly Sorg-Graves
Administrative Law Judge5
1"41 'io
11,,,
JD−31−20
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union;
Choose a representative to bargain with us on your behalf;
Act together with other employees for your benefit and protection;
Choose not to engage in any of these protected activities.
WE WILL NOT fail and refuse to bargain in good faith with the United Steelworkers, Local 6871,
AFL–CIO, CLC (Union) as the exclusive collective-bargaining representative of our unit
employees.
WE WILL NOT unilaterally change your terms and conditions of employment by implementing
changes to our employees’ seniority and superseniority rights in the case of a layoff without first
bargaining to a good-faith impasse.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act.
WE WILL on request, bargain with the Union as the exclusive collective-bargaining
representative of our employees in the following appropriate unit concerning terms and
conditions of employment and, if an understanding is reached, embody the understanding in a
signed agreement:
production and maintenance employees that were included in the bargaining unit,
voluntarily recognized by the Company and employed by the employer in its business
operations in Puerto, Rico. Executive, administrative, confidential and professional
personnel, office clerks, guards, supervisors and salespersons as defined in the National
Labor Relations Act are excluded from the appropriate unit.
WE WILL on the Union’s request, rescind the changes in the terms and conditions of employment
for our unit employees regarding their seniority and superseniority rights in the case of a layoff.
WE WILL, within 14 days from the date of the Board’s Order, offer employees affected by our
unilateral changes, including but not limited to Ernesto Fernandez, full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously enjoyed.
WE WILL make Ernesto Fernandez, and any other unit employee affected by our unilateral
changes, whole for any loss of earnings and other benefits resulting from their unlawful layoff,
less any net interim earnings, plus interest, and WE WILL also make them whole for reasonable
search-for-work and interim employment expenses, plus interest.
WE WILL compensate affected employees for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and WE WILL file with the Regional Director for Region 12, within
JD−31−20
21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report
allocating the backpay awards to the appropriate calendar years for each employee.
Longo En-Tech Puerto Rico, LLC
(Employer)
Dated:________________ By:__________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions.
To find out more about your rights under the Act and how to file a charge or election petition, you may
speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov
South Trust Plaza, 201 East Kennedy Boulevard, Suite 300, Tampa, FL 33602-5824
(813) 228-2641, Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/12-CA-
248406 or by using the QR code below. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER (813) 228-2641.