Rose Fence, Inc.

National Labor Relations Board - Board Decisions

Oct 22, 2012

359 N.L.R.B. 225 (N.L.R.B. 2012)

ROSE FENCE, INC. 225

359 NLRB No. 6
Rose Fence, Inc. and Local 553, International Broth-
erhood of Teamsters. Cases 29–CA–030485 and
29–CA–030537
October 22, 2012
DECISION AND ORDER
BY MEMBERS HAYES, GRIFFIN, AND BLOCK
On January 27, 2012, Administrative Law Judge
Mindy E. Landow issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
Acting General Counsel filed cross-exceptions and a
supporting brief, and the Respondent filed an answering
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,
1
and conclusions and
to adopt the recommended Order as modified.
2

1 We agree with the judge, for the reasons she gave, that each of the
Respondent’s decisions to lay off an individual employee—made con-
secutively as work diminished—was a mandatory subject of bargain-
ing. As the Respondent unilaterally made those individual decisions
after its bargaining obligation arose, the layoffs violated Sec. 8(a)(5).
Further, even if the Respondent decided, before its bargaining obliga-
tion arose, that it would later lay off employees as necessary, it was still
required to bargain over the postobligation individual layoff deci-
sions—including the number, timing, and terms of the layoffs—as
effects of that earlier decision. See Bridon Cordage, Inc., 329 NLRB
258, 258–259 (1999) (although employer made a decision to reduce
inventory before bargaining obligation arose, postobligation layoff that
was the effect of that decision was a mandatory subject of bargaining).
Because the Respondent did not make the arguments advanced below
by Member Hayes (as he properly acknowledges), we need not address
them.
Member Hayes would find that the general decision to lay off em-
ployees in response to a regularly recurring seasonal decline in business
was made prior to the election and, as such, was not a mandatory sub-
ject for bargaining. Accordingly, the fact that there would be lawful
work force reductions in the later months of 2010 should be taken into
account in compliance proceedings determining what backpay, if any,
the Respondent owes to individual laid-off employees. As to the Re-
spondent’s violation of Sec. 8(a)(5) for failing to bargain about individ-
ual layoff decisions made after the election, Member Hayes notes that
the Respondent has failed to except to the judge’s finding that the num-
ber, timing, and terms of these individual layoffs were not made in
accord with a past practice of limited discretion. Member Hayes fur-
ther notes that the Respondent did not contend that economic exigen-
cies should excuse it from having to bargain to an overall agreement or
impasse in the parties’ negotiations for a first contract before imple-
menting the individual layoffs. In his view, this is precisely the kind of
situation that calls for a balanced approach accommodating the legiti-
mate need for an employer to continue making daily operational deci-
sions necessary to the maintenance of its business during the initial
stage of a collective-bargaining relationship. Consistent with the ra-
tionale of Stone Container, 313 NLRB 336 (1993), and RBE Electron-
ics of S.D., 320 NLRB 80, 81–82 (1995), he would have required the
Respondent here to give the Union adequate notice and opportunity to
bargain about the layoffs. However, he would have permitted the Re-
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Rose
Fence, Inc., Baldwin, New York, its officers, agents,
successors, and assigns shall take the action set forth in
the Order as modified.
Substitute the following for paragraph 2(c).
“(c) Make the unit employees described above whole
for any loss of earnings and other benefits suffered as a
result of Respondent’s unilateral layoff of employees, in
the manner set forth in the remedy section of the deci-
sion.”

Brent Childerhose, Esq., for the Acting General Counsel.
Stanley Israel, Esq., of Bronx, New York, for the Respondent.
William K. Wolf, Esq. (Friedman & Wolf), of New York, New
York, for the Charging Party.1
DECISION
STATEMENT OF THE CASE
MINDY E. LANDOW, Administrative Law Judge. Based upon
charges filed on November 15 and December 13, 2010,2 by
Local 553, International Brotherhood of Teamsters (the Union),
an order consolidating cases, consolidated complaint, and no-
tice of hearing (the complaint) issued on February 28, 2011,
alleging that Rose Fence, Inc. (the Employer or Respondent)
violated Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act). The complaint alleges, in essence, that Respond-
ent violated the Act by: unilaterally announcing a new rule
requiring employees to punch out at 4 p.m.; unilaterally reduc-
ing the work hours of employees; unilaterally laying off em-
ployees and unilaterally subcontracting bargaining unit work all
without notice to and bargaining with the Union as the exclu-
sive collective-bargaining representative of its employees in an
appropriate unit. The complaint was subsequently amended
during the course of the hearing in this matter. The complaint,
as amended, adds the allegations that since August 3, Respond-
ent has laid off employees and hired subcontractors without
bargaining with the Union to a good-faith impasse or reaching
agreement. Respondent filed an amended answer denying the
material allegations of the complaint. A hearing in this matter
was held before me in Brooklyn, New York, on July 20 and

spondent to unilaterally implement individual layoffs prior to the par-
ties’ reaching agreement or impasse on this discrete issue, subject to
continued postimplementation bargaining.
We also agree with the judge, for the reasons she stated, that the
Acting General Counsel did not establish that the Respondent subcon-
tracted unit work in 2010 or 2011. As a result, we find it unnecessary
to reach the judge’s further finding that the Respondent had an estab-
lished past practice of subcontracting unit work that justified its action.
2 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language.
1 William K. Wolf replaced Nathan Bishop, Esq., who initially rep-
resented the Union at the outset of the hearing.
2 All dates are in 2010, unless otherwise specified.
226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

September 23, 2011.3
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by counsel for the Acting General Counsel4 and Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a domestic corporation with its principal of-
fice and place of business located at 345 Sunrise Highway,
Freeport, New York, and with a place of business located at
939 Church Street, Baldwin, New York, where it is engaged in
the manufacture, retail sale, and installation of fences. During
the 12-month period preceding the issuance of the complaint, a
period which is representative of its annual operations in gen-
eral, in the course and conduct of its business, Respondent de-
rived gross revenues in excess of $500,000 and purchased and
received at its Freeport, Long Island facility goods and materi-
als valued in excess of $5000 directly from suppliers located
outside the State of New York. Respondent admits and I find
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Operations
Respondent manufactures, sells, and installs fences. The
company is owned by Scott Rosenzweig. Bryan Cinque is his
primary assistant and also serves as office manager.5 Cinque
has been working for the Company for approximately 6 years
and handles sales, payroll, and customer relations, among other
things. Respondent has been in existence for 32 years, and
Rosenzweig has been involved with its operations for this peri-
od of time. The Company’s operations primarily involve resi-
dential work; however, as will be discussed below, Respondent
performs commercial work as well.
Following an election on May 21, on June 3, the Union was
certified as the exclusive collective-bargaining representative of
the following unit of employees:

All full-time, regular part-time and seasonal drivers, installers,
driver-installers, helpers, installer-helpers, yard workers and
carpenters employed by the Employer at its facility located at
939 Church Street, Baldwin, New York excluding all office
clerical employees, professional employees, guards and su-
pervisors as defined in the Act.

It is undisputed that Respondent is a seasonal operation, per-
forming both residential and commercial fence manufacture
and installation and, to a lesser extent, deck manufacture and
installation as well. Respondent is busiest during the months of
April through the first half of July, primarily with residential

3 After the initial hearing date the Employer and the Union entered
into settlement negotiations, which proved unsuccessful. The matter
was then resumed.
4 Referred to here as the General Counsel.
5 Rosenzweig and Cinque were the only witnesses to testify here.
work which then historically diminishes as the summer pro-
gresses into autumn. As Rosenzweig testified, the Company
will typically receive orders for commercial work during the
months of October through December, as companies may want
to spend some money prior to the end of the year for tax or
other reasons. At full capacity, Respondent employs about 130
employees, about 60 of whom are represented by the Union.
The other 70 employees are salesmen, counter persons, expedi-
tors, and factory workers who are involved in the Respondent’s
manufacturing processes.6 Approximately 90 percent or more
of Respondent’s work is residential in nature; the remainder is
commercial.
Rosenzweig runs his business along with a handful of others.
In addition to Cinque, assisting in Respondent’s operations are
Jerry Leverich, who expedites installations, and Pat Quintivalle
who supervises sales. The Company has three sales offices, a
manufacturing facility, a truck yard, and two storage yards. The
vast majority of the Company’s work is performed in Long
Island, New York. Respondent typically assigns two employees
to a truck; one is a mechanic and the other a helper who is a
less-skilled employee. At peak season, Respondent operates
about 29 or 30 trucks.
During the busy season, trucks are loaded the prior evening
and employees leave the facility at about 7:30 a.m. Employees
will be assigned to work as many as 55 hours per week. Re-
spondent operates with a backlog of work, and customers may
be obliged to wait several weeks for a fence, and sometimes as
long as 7 or 8 weeks.7
Once the backlog diminishes, and the slow season approach-
es, Respondent reduces the hours for its employees to 40 hours
per week, thus eliminating overtime. During the winter, Re-
spondent employs approximately 22 installers, a number of
which may be part-time employees. The amount of business
which is conducted during the winter depends upon the weather
and business demands. If the climate is moderate, clients may
place orders for fences. If there is snow and ice, fence installa-
tion cannot take place and employees will work very few hours
and may seek other work or ask to be placed on unemployment.
Respondent typically recalls its employees to work when work
picks up the following season.
B. The Alleged Unilateral Changes
During the summer of 2010, as the backlog diminished, Re-
spondent eliminated the overtime assigned to its employees. As
Rosenzweig testified, this typically occurs after the July 4th
holiday,8 and has been the case for some 5 to 10 years. A sign
is posted by the timeclock requesting that employees return to
the facility to clock out at 4 p.m. In addition, supervisors in the

6 Most of the fences manufactured by Respondent are made of a
plastic material; however the company manufactures and installs wood
fences and decks, as well.
7 As Rosenzweig testified, this was particularly the case during the
summer of 2010 due to a large late-winter storm in March 2010 which
caused massive damage. There was a surfeit of insurance money paid
out for fence work, and homeowners took advantage of it.
8 Rosenzweig explained that, beginning at this time of year, families
typically spend more time in their yards and, consequently, do not want
fence work performed at this time.
ROSE FENCE, INC. 227

field will remind employees to return the trucks by that time.
From time to time, Leverich may authorize employees to work
overtime to complete a particular assignment. Rosenzweig
testified that the decision to eliminate overtime is consistent
with the seasonal nature of its operations and is “strictly finan-
cial.” He also acknowledged that in July 2010 he did not con-
sult with the Union prior to issuing such instructions to em-
ployees. After Labor Day, Respondent switched to a 4-day
workweek. Again, the Union was not consulted with regard to
this matter.9
At some point beginning in July 2010 and continuing into
August, Respondent began laying off employees. As
Rosenzweig testified, once the backlog and work orders dimin-
ish, he brings the matter to Leverich’s attention and Leverich
decides who is to be laid off, based upon employee skills and
performance and overall company operations. It is admitted that
Respondent did not consult with the Union prior to laying off
employees in 2010.10 According to Rosenzweig, up to about 8
or 10 years ago, Respondent did not lay off employees during
its off season and maintained its work force by having employ-
ees manufacture inventory. Beginning at that point, however,
the Company could no longer afford to retain employees on the
payroll during the off season so it began laying off employees
as work declined, and has continued to do so since that time.11
Respondent has historically employed subcontractors during
its peak season and when there are commercial or other types of
jobs which the existing work force is not qualified to do. These
contractors perform both commercial and residential work.
Rosenzweig testified that this has been his practice for the en-
tire time he has operated the business.
Cinque testified that a subcontractor would perform residen-
tial services when the Company was overloaded with work but
otherwise would do jobs that so-called “house crews” did not
typically perform. According to Rosenzweig, the bulk of his
commercial work is performed by subcontractors because of
their skills and abilities and for purposes of efficiency.12 One
example offered by Rosenzweig concerned an order to place a
50-foot fence around a baseball field. Rosenzweig testified that
during the busy season, he will use the services of five or six
subcontractors. Subcontractors use their own trucks, labor, and

9 The reduction to a 4-day work eek was not specifically alleged as
an independent unfair labor practice.
10 It appears from the record that communications with the Union are
handled by Rosenzweig and Cinque.
11 A summary of records concerning the 2010 layoff which was
placed into evidence by counsel for the General Counsel indicates that
the first layoff for that season took place on July 7 and involved one
employee. There were several other employees laid off that month: on
July 9, 16, and 30. In total, six employees were laid off prior to the
commencement of collective bargaining in August. Twenty-three em-
ployees were laid off after bargaining commenced, and there are 15
employees whose lay off date is unknown. It should be noted, however
that this exhibit was admitted into the record as a clarification of the
pleadings, rather than as substantive evidence of who was laid off and
when. I note, however, that Rosenzweig admitted and there is no dis-
pute that layoffs occurred beginning at a time “close to August” as
work declined and continued thereafter.
12 The record reflects that certain subcontractors utilized by Re-
spondent are former employees who then started their own companies.
equipment. They are paid piece work, by each post placed into
the ground.
Rosenzweig testified that after the storm of March 2010, he
called his employees into work, and a number of subcontractors
as well, because his work force was not sufficient to handle the
volume of orders he received. Rosenzweig admitted that he did
not contact the Union prior to hiring subcontractors in 2010,
and the record demonstrates that he continued to make pay-
ments for the services of certain subcontractors after the elec-
tion and the Union’s certification through the end of 2010.
Rosenzweig testified that the dates of the payments made to
subcontractors might not necessarily reflect exactly when such
work was performed, depending on the cash flow of the busi-
ness, as he typically makes payroll first and then pays the subs.
The General Counsel offered into evidence certain records
reflecting payments made to four subcontractors during the
period following the election and the Union’s certification
through December 2010: Tim Gage, Francisco Ramos, Mario
Fences, and Leiva Fence. Gage received payment from Re-
spondent through December, Ramos received payment through
mid-August, and both Leiva Fence and Mario Fences received
payments until some time in December.
The testimony adduced regarding the type of work per-
formed by the subcontractors who received payments during
the period from August through December 2010 was as fol-
lows:

Q. What were these checks for to Tim Gage ?
A. Tim does work for me. Tim does wood work for me
Q. He does installation of fences?
A. Just wood fences. He doesn’t do the plastic.
Q. And turning to the third page of the exhibit, Fran-
cisco Ramos, it shows checks that were issued to him
through August 19, 2010. What kind of work does he do
for you?
A. Francisco could do everything. Decks. Francisco is
a very talented carpenter.
Q. He does fence work for you?
A. He does fence, decks, etc.
Q. And these checks would be for that work?
A. And commercial work, yes, sir.
Q. What commercial work did Mr. Ramos do for you?
A. At the moment, I don’t have the bills. He would
submit bills with what he did. I don’t have them in front of
me. What Francisco does, he could weld. He can do any-
thing, decking.
Q. Mario Fences. On the last page it shows checks be-
ing issued to Mario Fences through December 2010. That
would be for fence work?
A. The money I pay him is for work, yes . . . He does
work for me, for work performed for me.
Q. And the same is true of Leiva Fence, the first page?
A. Yes.

In addition, Rosenzweig was questioned and offered general
testimony about two other contractors: Cabrerra, who performs
residential work, and Stan Miles, who does commercial work
for Respondent. Neither of these subcontractors appeared on
the records produced by Respondent relating to the period after
228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

the election through December 2010. Rosenzweig testified that
Cabrerra began subcontracting in May 2010 and was doing
work for the Company this year as well. When counsel for the
Charging Party asked Cinque whether part of the work per-
formed by subcontractors is similar to the work done by Re-
spondent’s employees, he replied, “Not typically, no.”
C. The Parties’ Collective-Bargaining Negotiations
Respondent and the Union first met to bargain for a collec-
tive-bargaining agreement on August 3. Subsequent meetings
were held on August 23 and March 23, 2011. These meetings
were attended by Rosenzweig, Cinque, Union Officials Demos
Demopoulos and Jack Dresch, and two bargaining unit employ-
ees. There were also several bargaining proposals and email
communications exchanged between the parties, the relevant
portions of which are set forth below.
In response to questions from counsel for the General Coun-
sel, Rosenzweig testified generally that the Union proposed that
layoffs be conducted according to seniority and that the parties
have not reached agreement on this issue. In addition, the issue
of subcontracting came up and, as Cinque testified, Respondent
advised the Union that it had always used subcontractors when
they were needed and for specialty work. The Union thereafter
modified its initial subcontracting proposal, as set forth below.
At the parties’ first meeting, the Union presented the Em-
ployer with an initial draft agreement which contained the fol-
lowing proposals:

SENIORITY: A seniority list shall be established in accord-
ance with employment by the company.

WORK PROTECTION: The Employer shall not contract out
or subcontract to others work in any category unless all em-
ployees on the seniority list are fully employed. In the event
that the Employer utilizes subcontractors in violation, all em-
ployees on the seniority list who did not work and should
have worked on the day or days that such violation occurred
shall be paid for that day or those days.

At this initial meeting, the parties primarily discussed the
Union’s wage and health benefit proposals.
A second meeting was held in late August. There was disa-
greement between the parties on the issues of wages, health
insurance, and the Union’s seniority proposal. According to
Cinque, there was no substantive discussion of the issues of
subcontracting, layoffs, or employee hours of work.
After this second meeting, on September 13,13 Demopoulos
sent the Employer revised proposals entitled “Negotiations
Draft.” Section 9, entitled “Seniority” contained the following
provision:

Section 9—Seniority

A. Seniority shall be on the basis of classification and qualifi-
cation at all times based on the date of commencement (date
of hire) and further providing the senior employee has the
necessary qualification to perform the available work. All
work shall be assigned on a seniority basis.

13 According to Cinque, the parties met again in late August, but no
testimony was adduced about this meeting.

B. All layoffs shall be determined by the Employer, that is,
Employees will be reviewed as to background, skills and prior
training when being considered for layoffs. In the event that
additional employees shall be needed, all persons covered by
this Agreement previously laid off shall be recalled based on
background, skills and prior training provide, however, that
any Employee so recalled must report to work within five (5)
days after notification by the Employer, or failing to do so,
shall forfeit all seniority rights.

C. Notwithstanding any of the foregoing, any employee who
is terminated for cause or who voluntarily resigns shall forfeit
all seniority rights.

Section 16, entitled “Work Protection” provides:

Section 16—Work Protection

The Employer shall not contract out or subcontract to others
work in any category covered by this Agreement, unless all
employees on the seniority list are fully employed, and quali-
fied to do said work. If a violation of this section occurs, all
qualified employees on the seniority list on the seniority list
who did not work and should have worked on the day or days
that such violation occurred, shall be paid for that day or days.

On March 22, 2011, Demopoulos sent Respondent an email
containing a copy of the Union’s proposals in the form of a
draft contract (draft 2). The relevant provisions pertaining to
seniority and layoffs are as follows:

Section 9—Seniority

A. Seniority shall be on the basis of classification and qualifi-
cation at all times based on the date of commencement (date
of hire) and further providing the senior employee has the
necessary qualification to perform the available work. All
work shall be assigned on a seniority basis.

B. All layoffs shall be determined by the Employer, that is,
Employees will be reviewed as to background, skills and prior
training when being considered for layoffs. In the event that
additional employees shall be needed, all persons covered by
this Agreement previously laid off shall be recalled based on
background, skills and prior training provide, however, that
any Employee so recalled must report to work within seven
(7) days after notification by the Employer, or failing to do so,
shall forfeit all seniority rights.

C. Notwithstanding the foregoing, any employee who is ter-
minated for cause or who voluntarily resigns shall forfeit all
seniority rights.

The draft additionally contained the following work protection
clause:

Section 16—Work Protection

The Employer shall not contract out or subcontract to others
work in any category covered by this Agreement, unless all
employees on the seniority list are fully employed, and quali-
fied to do said work. If a violation of this section occurs, all
qualified employees on the seniority list on the seniority list
who did not work and should have worked on the day or days
ROSE FENCE, INC. 229

that such violation occurred, shall be paid for that day or days.

There were three additional contract drafts submitted by the
Union on or about April 12, May 13, and June 1, 2011. The
“Seniority” and “Work Protection” provisions remained un-
changed. The Employer’s response to the Union’s April 12
proposal reflects that the Employer agreed to the Union’s
“Work Protection” proposal, as set forth above. To date, there
has been no agreement on the Union’s “Seniority” proposal and
in a response to the Union’s June 1 contract proposal, the Em-
ployer specifically rejected it.
Analysis and Conclusions
This case involves certain changes to terms and conditions of
employment made by Respondent after the election of and cer-
tification of the Union both prior to and during collective bar-
gaining for an initial contract. The General Counsel has alleged
that the Employer unilaterally, and unlawfully, announced a
new rule requiring employees to punch out at 4 p.m., hired
subcontractors, laid off employees, and reduced the work hours
of employees. The General Counsel further alleges that since
commencing collective bargaining with the Union on August 3,
Respondent hired subcontractors and laid off employees with-
out bargaining with the Union to a good-faith impasse or reach-
ing agreement. Respondent contends that the parties have either
bargained over the alleged unlawful actions or that the Union
has effectively waived its right to bargain over these matters as
it has indicated no desire to do so. Respondent further contends
that even if it were to be assumed that Respondent and the Un-
ion had not bargained over these subjects or there was no effec-
tive waiver, there was no violation since the decision to imple-
ment the allegedly unlawful actions was made before Respond-
ent became obligated to bargain with the Union.
D. The Alleged Unlawful Layoff of Employees
As a general matter, it is well settled that, once a majority of
employees in an appropriate unit select a union to represent
them, their employer is obligated to bargain with that union
regarding the employees’ wages, hours and terms and condi-
tions of employment and may not unilaterally alter those terms.
NLRB v. Katz, 369 U.S. 736 (1962). It is also well established,
with limited exceptions, that the decision to lay off employees
for economic reasons is a mandatory subject of bargaining.
McClain E-Z Pack, Inc., 342 NLRB 337 (2004); Toma Metals,
Inc., 342 NLRB 787, 787 fn. 1 (2004); NLRB v. Advertising
Mfg. Co., 823 F.2d 1086, 1090 (7th Cir. 1987), enfg. in relevant
part Advertisers Mfg. Co., 280 NLRB 1185 (1986). Similarly,
the “particular hours of the day and the particular days of the
week during which employees shall be required to work are
subjects well within the realm of ‘wages, hours, and other terms
and conditions of employment’ about which employers and
unions must bargain.” Meat Cutters Local 189 v. Jewel Tea
Co., 381 U.S. 676, 691 (1965). As the Board has held, this is
generally the case even with respect to layoffs and changes in
employees’ work schedules over which the employer previous-
ly exercised unlimited discretion. See, e.g., Adair Standish
Corp., 292 NLRB 890 fn. 1 (1989), enfd. in relevant part 912
F.2d 854 (6th Cir. 1990) (despite past practice of implementing
discretionary layoffs, after employees selected union as their
bargaining representative, employer could no longer lay off
employees without consulting with the union); NLRB v. Adver-
tising Mfg. Co., supra at 1090 (“Layoffs are not a management
prerogative. They are a mandatory subject of collective bar-
gaining. Until the modalities of layoff are established in the
agreement, a company that wants to lay off employees must
bargain with the union.”). Where a company effectuates a
layoff due to a decline in work orders, the issues of whether
those layoffs should be effected, whom to include in such
layoffs and what if any benefits should be given to laid off
employees are mandatory subjects of collective bargaining.
Dickerson-Chapman, Inc., 313 NLRB 907, 942 (1994).
In addition, the effects of a layoff are also a mandatory sub-
ject of bargaining, and as is the case with decisional bargaining,
effects bargaining also requires an employer to provide a union
with notice of the layoffs before they occur in order to satisfy
the employer’s duty to bargain over the effects of the layoffs.
Kajima Engineering & Construction, 331 NLRB 1604, 1620
(2000); Geiger Ready-Mix Co. of Kansas City, 315 NLRB
1021, 1021 fn. 8 (1994), enfd. 87 F.3d 1363 (D.C. Cir. 1996).
The duty to bargain over the decision to lay off employees in-
cludes the duty to bargain over the effects of the layoff. Toma
Metals, Inc., supra.
The Respondent argues that it has continued to operate in the
same fashion for the past 8 to 10 years, due to the seasonality of
its business, in conjunction with its financial condition. Thus,
beginning in July of each year, as residential work began to
decline, Respondent reduced and then eliminated overtime
hours; as work declined further, Respondent then reduced work
hours and subsequently laid off employees and has continued to
do so each and every year. As Respondent argues, this practice
had occurred with such regularity and frequency that employ-
ees could and reasonably did expect the practice to continue
and reoccur on a regular and consistent basis. Respondent con-
tends that since these decisions were made years ago, well be-
fore the Union appeared on the scene, and well before its bar-
gaining obligation attached, it did not violate Section 8(a)(5) of
the Act by implementing such decisions.
The General Counsel argues that any reliance upon Re-
spondent’s past practice is misplaced. Porta-King Building
Systems, 310 NLRB 539, 543 (1993); Eugene Iovine, Inc., 328
NLRB 294, enfd. mem. 1 Fed. Appx. 8 (2d Cir. 2001); (un-
published); Adair Standish Corp., supra. In Eugene Iovine, the
employer reduced the hours of its employees without bargain-
ing with their newly-certified bargaining representative. The
employer defended this unilateral action on the ground that it
had previously reduced hours for various reasons. The Board
initially found that the respondent had failed to establish a past
practice and next, given that there was “no reasonable certain-
ty” as to the timing or criteria, the respondent’s decision to
reduce its employees’ hours of work involved significant man-
agement discretion. The Board then stated that both the Board
and the courts “have consistently held . . . such discretionary
acts ar . . . precisely the type of action over which an employer
must bargain with a newly certified union.” 328 NLRB at 294
(citations and quotations omitted). The Board cited Adair
Standish for the proposition that, because of the existence of
newly certified union, an employer may no longer continue
230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

unilaterally to exercise its discretion with respect to layoffs.
Subsequently, in Eugene Iovine, Inc., 356 NLRB 1056 fn. 3
(2011), 353 NLRB 400, 405–406 (2008), the Board held that
the acquiescence of a previous union in a past practice of uni-
lateral layoffs does not exempt an employer from providing
notice and an opportunity to bargain to the union currently
representing bargaining unit employees. In particular, the
Board affirmed ALJ’s conclusion that “the overwhelming
weight of case law supports the view that nonunion employers’
past practices will not justify unilateral implementation of
mandatory subjects of bargaining once a union represents the
employees,” characterizing it as “fully consistent with Board
precedent” 356 NLRB 1056 fn. 3, 353 NLRB at 406 fn. 9. The
Board has repeatedly held that “past practice in effectuating
discretionary employment decisions is not a cognizable defense
to unilateral change allegations after the union’s certification.”
Essex Valley Visiting Nurses Assn., 343 NLRB 817, 843
(2004), citing Mackie Automotive Systems, 336 NLRB 347
(2001); Adair Standish, 292 NLRB 840 fn. 1 (1989). See also
Wilen Mfg. Co., 321 NLRB 1094, 1097 (1996) (employer’s
contention that layoffs occurred every year during slow period
found not to be a defense in the absence of providing the union
a reasonable opportunity to bargain collectively over the layoff
procedure).
As noted above, however, Respondent does not rely solely
upon its asserted past practice as a defense to its actions, but
additionally argues that the challenged decisions were made
prior to the Union becoming the collective-bargaining repre-
sentative of its employees. In support of these contentions,
Respondent relies upon Starcraft Aerospace, Inc., 346 NLRB
1228 (2006); and the cases cited there. In Starcraft Aerospace,
the named respondent laid off employees the day after a repre-
sentation election in which employees voted in favor of repre-
sentation. The Board, reversing the administrative law judge in
this regard, found that the decision to lay off the employees had
been made prior to the election based upon the exigent circum-
stances of the owner’s terminal medical condition and the in-
creasingly poor financial condition of the business. In conclud-
ing that the layoffs were not unlawful the Board stated:

We find the Respondent did not violate Section 8(a)(5) and
(1) of the act by laying off the unit employees. In general, an
employer violates Section 8(a)(5) and (1) by unilaterally im-
plementing changes in the terms and conditions of employ-
ment of its represented employees without satisfying its bar-
gaining obligation. If however, an employer makes a decision
to implement a change before being obligated to bargain with
the union the employer “does not violate Section 8(a)(5) by its
later implementation of that change.”

346 NLRB at 1230 (quoting SGS Control Services, 334 NLRB
858, 861 (2001); citing Consolidated Printers Inc., 305 NLRB
1061 fn. 2, 1067 (1992) (emphasis in original)).14

14 In SGS Control Services, the Board found that the respondent did
not violate the Act when, consistent with its preelection decision, it
implemented an overtime change and ceased paying to its California
nonexempt employees overtime for work in excess of 8 hours per week
Moreover, as set forth in Consolidated Printers, under this
analysis, it is not essential that the precise date of the decision
be established. The critical fact is whether the Respondent’s
decision predated the election. 305 NLRB at 1061 fn. 2. See
also SGS Control Services, supra at 861 fn. 3.15
Here, the unrebutted testimony of both Rosenzweig and
Cinque establishes Respondent had, in fact, made a general
decision to reduce employees’ hours and lay off employees
prior to the Union’s certification, consistent with years of past
practice. Moreover, there is substantial evidence that work
diminished at seasonably predictable times. Nevertheless, the
decision to lay off individual employees, which in 2010 oc-
curred after the employees had voted for union representation,
was made by Leverich, in response to the Company’s assess-
ment of its economic condition and was based upon individual-
ized subjective factors, taking into account employee work skill
and company operations. These decisions were made gradually
as work diminished, and not at any particular announced time
or in response to one event. In addition, it must be noted that
Respondent continued to employ roughly one-third of the bar-
gaining unit during the off-season in 2010–2011, by necessity
suggesting that determinations were made as to who would
remain employed during these months. Thus, each decision to
lay off an employee required Respondent to exercise substantial
discretion to with regard to its implementation. See Warehouse
& Office Workers Local 512 v. NLRB, 795 F.2d 705, 711 (9th
Cir. 1986) (economic layoffs, by their nature, are inherently
discretionary involving “subjective judgments of timing, future
business, productivity and reallocation of work”).
As noted above, the Board and the courts have consistently
held that these discretionary decisions are the sort of employer
action to which the statutory duty to bargain applies. NLRB v.
Katz, 369 U.S. 736, 746 (1962) (unilateral merit wage increases
were unlawful because they were “in no sense automatic, but
were informed by a large measure of discretion”); Aaron Bros.
Co. v. NLRB, 661 F.2d 750, 753 (9th Cir. 1981) (“longstanding
exception” suggested in Katz places a heavy burden on the
employer to show an absence of employer discretion in deter-
mining the size or nature of a unilateral employment change);
Adair Standish, supra (discretionary layoffs properly the sub-
ject of bargaining); Eugene Iovine, 328 NLRB 294 (unilateral
reduction in work hours violated the Act where there was no
reasonable certainty as to timing or criteria and decision in-
volved significant management discretion); Eugene Iovine, 356
NLRB 1056 (duty to bargain over discretionary layoffs). See
also, Colorado Ute Electric Assn., 295 NLRB 607, 608 (1989);
Oneita Knitting Mills, Inc., 205 NLRB 500 fn. 1 (1973) (im-
plementation of a merit raise program which involves discre-
tion in determining the amounts or timing of the increases is a
matter to which the bargaining representative is entitled to be
consulted).

in a workday, and instead paid overtime only for hours worked in ex-
cess of 40 hours per workweek.
15 In this regard, the Board has also found that the ability of an em-
ployer to implement the change is not affected by its failure to inform
the union or employees of its plans prior to the election. See Consoli-
dated Printers, supra at 1068.
ROSE FENCE, INC. 231

In Consolidated Printers, supra at 1068, relied upon by Re-
spondent, the Board, adopting the decision of the administrative
law judge, found that there was no duty to bargain over layoffs
where the decision had been made prior to the election. How-
ever, in that case the judge also found that “it may fairly be
inferred” that layoffs which occurred subsequent to the election
had been decided upon at a time after the respondent’s bargain-
ing obligation attached and the failure to bargain over those
layoffs were not excused by past practice (quoting Adair
Standish Corp., supra).
Respondent further argues that the parties have either bar-
gained over the subjects of the alleged 8(a)(5) violations or the
Union has either consented to or indicated no desire to bargain
over those matters and has therefore effectively waived its right
to bargain. In support of these contentions, Respondent points
to the fact that the Union’s initial bargaining proposal did not
refer to any of the alleged unilateral changes with the exception
of subcontracting,16 and that this provision was revised in sub-
sequent drafts which provided that a prohibition on subcon-
tracting was limited to bargaining unit work where bargaining
unit employees were qualified to do such work.
Respondent additionally contends that proposed collective-
bargaining agreements and, in particular, the Union’s “Seniori-
ty” proposal recognized the right of the Respondent, in its dis-
cretion, to lay off employees. As Respondent argues in its
posthearing brief: “Somewhat ambiguous seniority rules were
proposed for lay offs and recalls, but no proposal called for any
limitation on or prohibition of, the right of the Respondent to
lay off employees or called for bargaining in the event of, and
prior to, any lay off of employees by Respondent.” In this re-
gard, the Respondent contends that the seniority language in
section 9 refers only to the implementation of layoffs and re-
calls but not to the right of Respondent to lay off employees,
and that such a right is expressly granted to the Respondent by
the second paragraph of the “Seniority” provision.17
In support of the foregoing arguments, Respondent relies up-
on Vandalia Air Freight, Inc., 297 NLRB 1012, 1013–1014
(1990). In that case, the Board concluded that the union had
waived its bargaining rights where it waited until after a merger
decision had been effectuated to request bargaining over the
effects of the decision. As the Board found, “when an employer
notifies a union of proposed changes in terms and conditions of
employment, it is incumbent upon the union to act with due
diligence in requesting bargaining” (quoting Jim Walter Re-

16 In particular, Respondent notes that no proposal of the Union, oral
or written, dealt with or referred to the right of Respondent to require
employees to punch out at 4 p.m. each day, or to reduce hours of work
of bargaining unit employees. In addition, the Union’s initial written
proposal did not address the issue of layoffs.
17 The specific language relied upon by Respondent, reiterated here
for ease of reference, is the following: “All layoffs shall be determined
by the Employer, that is, Employees will be reviewed as to background,
skills and prior training when being considered for layoffs. In the event
that additional employees shall be needed, all persons covered by this
Agreement previously laid off shall be recalled based on background,
skills and prior training provide, however, that any Employee so re-
called must report to work within seven (7) days after notification by
the Employer, or failing to do so, shall forfeit all seniority rights.”
sources, 289 NLRB 1441, 1442 (1988)). For various reasons,
however, this authority is not dispositive of the issues presented
here.
To establish waiver of a statutory right to bargain over man-
datory subjects, there must be a clear and unmistakable relin-
quishment of that right. Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 702 (1983); Exxon Research & Engineering Co., 317
NLRB 675 (1995), enf. denied on other grounds 89 F.3d 228
(5th Cir. 1996). Waiver can occur in any of three ways: by
express contract language, by the parties’ conduct (including
past practice, bargaining history, action, or inaction) or by a
combination of the two. American Diamond Tool, 306 NLRB
570 (1992); Chesapeake & Potomac Telephone Co. v. NLRB,
687 F.2d 633, 636 (2d Cir. 1982). In addition, the Board has
held that in situations such as the one presented here, where the
parties have not yet completed their first contract, the waiver
issue is properly decided on evidence of the parties’ conduct.
American Diamond Tool, supra. It is well settled that the party
asserting waiver has the burden of establishing its existence.
Pertec Computer, 284 NLRB 810 (1984).
Here, it is undisputed that the Union was the certified collec-
tive-bargaining representative of the unit employees and, more-
over, that Respondent neither provided notice nor bargained
with the Union prior to its implementation of layoffs. Before
such action, the Board requires prior notice “so that the union
may have a reasonable opportunity to evaluate the proposal and
present a counterproposal before the change takes place.” San
Antonio Portland Cement Co., 277 NLRB 309, 313 (1985). In
arguing that a waiver occurred here, the Respondent argues that
the Union became aware of layoffs either at the time or shortly
after they occurred and that the Union had the opportunity to
object during bargaining, which it failed to do. These factors,
however, do not countervail the fact that the 2010 layoffs were
presented to the Union as a fait accompli. While the record
does not contain evidence of how or when the Union learned of
the layoffs, it is admitted that Respondent undertook these ac-
tions without providing notice to or consulting with the Union.
Under such circumstances, the Union’s failure to object is not
tantamount to waiver. The Board has held that when a union
learns of an employer’s decision regarding a mandatory subject
after its implementation, it will not find that the union’s failure
to request bargaining over that action constitutes a clear and
unmistakable waiver of its right to bargain. Alpha Biochemical
Corp., 293 NLRB 753 fn. 1 (1989); Pontiac Osteopathic Hos-
pital, 336 NLRB 1021, 1021–1024 (2001) (and cases cited
therein) (“[A]n employer must at least inform the union of its
proposed actions under circumstances which afford a reasona-
ble opportunity for counterarguments or proposals.”).
Moreover, Respondent’s contention that the so-called “am-
biguous seniority rules” set forth in section 9 of the Union’s
draft contract refer only to the implementation of layoffs and
recalls but not to Respondent’s right to lay off employees is
beside the point. As has been discussed above, the Board and
the courts have made clear that an employer’s bargaining obli-
gation encompasses not only the decision to make a change in
terms and conditions of employment, but the manner in which
such changes are effectuated as well as their effects. See, e.g.,
NLRB v. Katz, supra at 746; Office Workers Local 512 v. NLRB,
232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

supra at 711; Adair Standish Corp., supra at 890 fn. 1; Eugene
Iovine, 356 NLRB 1056 fn. 3.
When the parties are engaged in collective-bargaining nego-
tiations, the Board finds that an employer’s obligation to refrain
from unilateral changes encompasses a duty to refrain from
implementation at all, unless and until an overall impasse has
been reached on bargaining for the agreement as a whole. See
Bottom Line Enterprises, 302 NLRB 373, 374 (1991). Here,
there is no contention, or evidence, that the parties reached
agreement on a contract as a whole or that they had reached
impasse at any relevant time. Moreover, the evidence establish-
es that the Respondent did not agree to the “Seniority” proposal
as set forth in the Union’s draft contract and, in fact, rejected it.
There is similarly no evidence that the Union’s language re-
garding layoffs, relied upon by Respondent, was somehow
discussed independently or severed from its overall “Seniority”
proposal and made the subject of a separate, express agreement
at the time layoffs were being implemented. The most one can
conclude from the evidence here is that in the event the Em-
ployer was amenable either to the proposed contract as a whole
(which, at the time, it was not), or at the very least to the Un-
ion’s “Seniority” proposal in its entirety (a proposal Respond-
ent expressly rejected),18 the Union would then agree to layoffs
“determined by the Employer . . . according to background,
skills and prior training.” Thus, the evidence adduced in this
record falls short of showing that these matters were “fully
discussed” and “consciously explored” during negotiations.
Davies Medical Center, 303 NLRB 195, 204 (1991), or that
there was at any relevant time a clear and unmistakable waiver
of the Union’s right to bargain over this mandatory subject.
Metropolitan Edison Co., supra. Accordingly, I cannot con-
clude that Respondent has met its substantial burden of proving
waiver over this issue.19
Accordingly, I find that by failing and refusing to give the
Union notice and an opportunity to bargain over the layoff of
bargaining unit employees, or the effects of these layoffs, and
by engaging in such unilateral conduct during bargaining for an
initial collective-bargaining agreement in the absence of
agreement or impasse, Respondent violated Section 8(a)(1) and
(5) of the Act.

18 In this regard, it may fairly be inferred from Respondent’s outright
rejection of the “Seniority” proposal that it construed the language set
forth in the first paragraph of that provision to constitute an impermis-
sible limitation on its discretion to lay off and recall employees.
19 I find that American Diamond Tool is distinguishable. There, the
Board held that a union waived its right to bargain over economic
layoffs by failing to request bargaining after learning of the layoffs. In
that case, however, the Board relied upon a confluence of several fac-
tors to conclude that waiver occurred. In particular, the Board conclud-
ed that the parties had bargained over the issue and the union “express-
ly signaled its willingness to permit such conduct in the future.” 306
NLRB 571. See also Eugene Iovine, 328 NLRB 294 fn. 1. Here, as
discussed above, I have found that the matter was not fully bargained
and that the Union never “expressly signaled” a willingness to permit
unilateral layoffs.
E. The Alleged Announcement of a New Work Rule
and Reduction in Work Hours
With regard to the requirement that employees punch out at
4 p.m. and the alleged reduction in employees’ work hours, I
find that, unlike the layoff decisions, the record demonstrates
that these decisions were undertaken in accordance with cus-
tomary business operations, as a regular matter, on an annual
basis, at the same time each year, affected the bargaining unit
as a whole and did not vary significantly in kind or degree from
what had occurred in prior years. Thus, Respondent has estab-
lished the existence of a past practice as well as a reasonable
certainty as to the timing and criteria for such employment
decisions. Under these circumstances, I find that, in the context
of the well-documented and unrebutted evidence of the Em-
ployer’s seasonal operations, this amounted to a permissible
“continuation of the status quo . . .” Katz, 369 U.S. at 746.
The situation here is analogous to one presented by San An-
tonio Portland Cement Co., 277 NLRB at 313, where the em-
ployer had a longstanding mandatory overtime policy and im-
plemented the practice, without notice to its employees’ bar-
gaining representative, after becoming obligated to recognize
and bargain with the union. The Board concluded that the em-
ployer’s actions were not unlawful inasmuch as the mandatory
overtime policy predated the employer’s obligation to bargain
with the union. By contrast, in Eugene Iovine, 328 NLRB at
294, the Board concluded that a violation of Section 8(a)(5) had
occurred where the employer failed to establish a past practice
and further failed to establish that its reduction of employees’
work hours was consistent with its conduct in prior years. In
that case and, in contrast to the situation here, the employer
failed to identify the specific circumstances surrounding its
postelection reduction in work hours and thus failed to show
that the reduction comported with its previous conduct. See
also Starcraft Aerospace, supra at 1230, Consolidated Printers,
supra at 1068 (no duty to bargain over layoffs where the deci-
sion had been made prior to the election); Long Island Day
Care Services, 303 NLRB 112, 114 (1991) (holiday observance
became term and condition of employment prior to certification
of union and onset of contract negotiations); Embossing Print-
ers, 268 NLRB 710 fn. 2 (1984) (decision to cancel Christmas
bonus made prior to union’s advent).
Accordingly I recommend that these allegations of the com-
plaint be dismissed.
F. The Alleged Unlawful Subcontracting
The subcontracting of bargaining unit work is a mandatory
subject of bargaining, unless it involves a substantial capital
commitment or change in the nature, scope or direction of its
business. See, e.g., OGS Technologies, Inc., 356 NLRB 642,
644–645, slip op. at 3–4 (2011), discussing Fibreboard Corp.,
v. NLRB, 379 U.S. 203 (1964); Mission Food, 350 NLRB 336,
344–345 (2007).
Where subcontracting involves merely “the substitution of
one group of workers for another to perform the same work,”
the union must be given notice and a meaningful opportunity to
bargain. Mission Foods, 350 NLRB at 344.
Here, the evidence establishes that Respondent has been sub-
contracting work for over 30 years. Some of this work is of the
ROSE FENCE, INC. 233

type traditionally performed by its “house crews,” i.e., residen-
tial fence installation, but much of it is not. The record, as de-
veloped, demonstrates that subcontractors are used primarily
for commercial work, or for work requiring special skills. Ac-
cording to Rosenzweig and Cinque, this is not the type of work
performed by bargaining unit employees.20 There is also evi-
dence that subcontractors are used when there is an overflow of
work which is of the sort typically performed by unit employ-
ees. There is, however, no specific evidence that such work was
performed after the election. While the evidence does show
that Respondent had been making payments to subcontractors
up until December 2010, and continues to use subcontractors,
there is insufficient evidence as to the precise nature of the
work, when subcontractors were contracted to perform such
work, when the work was actually performed or whether such
payments were for work which traditionally had been assigned
to unit employees. There is also no evidence that work was
taken from unit employees and transferred to subcontractors or
that subcontractors performed work which had previously been
assigned to or could have been performed by laid off unit em-
ployees.
It appears that the General Counsel is requesting that I as-
sume a violation of Section 8(a)(5) has occurred from the fol-
lowing facts: subcontractors have at times performed residential
fence installation and, more generally, bargaining unit work;
subcontractors received payments for work performed during a
period of time after the election in which the Union was select-
ed as the exclusive bargaining representative; Respondent con-
tinues to use subcontractors, and the Union was not given prior
notice and an opportunity to bargain over the use of subcontrac-
tors. The General Counsel has, however, failed to present af-
firmative evidence that at any material time Respondent has
subcontracted bargaining unit work. As has been noted, the
General Counsel bears the burden of proof as to each element
of his prima facie case. See Consolidated Printers, supra at
1067. Here, the evidence adduced by the General Counsel is
simply insufficient to allow me to conclude that the Respondent
has violated the Act, as alleged. While it is entirely possible
that subcontractors were, in fact, doing unit work after the elec-
tion, it is also possible that they were not. I cannot reach a de-
termination of unlawful conduct based upon a record such as
this one.
Moreover, I find that under the particular circumstances of
this case, where Respondent has made a showing that subcon-
tracting had been the norm for many years and had been an
integral part of Respondent’s business operations during the
period prior to the election, the General Counsel has failed to
present sufficient evidence to show how Respondent’s continu-
ance of this pattern and practice constituted any sort of change,
unilateral or otherwise, in the terms and conditions of employ-
ment of unit employees after the selection of the Union as bar-
gaining representative or resulted in any significant change in
the job tenure of unit employees. This is particularly the case
where there is an absence of evidence that bargaining unit work
was transferred to or performed by subcontractors after the

20 I must emphasize that these assertions, made by witnesses called
for the General Counsel, were not rebutted.
election and certification of the Union as bargaining representa-
tive, or that there was a “substitution of one group of workers
for another to perform the same work.” Mission Foods, supra.
Accordingly, I find that the General Counsel has failed to
sustain its burden to establish that Respondent unlawfully sub-
contracted bargaining unit work, as alleged in the complaint,
and recommend that these allegations of the complaint be dis-
missed.
CONCLUSIONS OF LAW
1. Respondent is, and has been at all material times, an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. At all times since June 3, 2010, the Union has been the
certified exclusive collective-bargaining representative, within
the meaning of Section 9(a) of the Act, of an appropriate unit of
employees, comprised of:

All full-time, regular part-time and seasonal drivers, installers,
driver-installers, helpers, installer-helpers, yard workers and
carpenters employed by the Employer at its facility located at
939 Church Street, Baldwin, New York excluding all office
clerical employees, professional employees, guards and su-
pervisors as defined in the Act.

4. By unilaterally laying off bargaining unit employees with-
out timely notifying the Union and providing a meaningful
opportunity to bargain over the decision to lay off employees
and the effects of the layoffs, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and (5) of
the Act.
5. The unfair labor practices committed by Respondent affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Given the undisputed seasonal nature of the Employer’s op-
erations, a fact which is acknowledged in the certification of the
bargaining unit, I asked counsel for the General Counsel to
address the issue of what remedy the General Counsel would
find appropriate for any violations found here. The General
Counsel has taken the position that the employees at issue are
entitled to a full make whole and backpay relief consistent with
the Board’s ruling in Plastonics, Inc., 312 NLRB 1045 (1993).
(“The traditional and appropriate Board remedy for an unlawful
unilateral layoff based on legitimate economic concerns in-
cludes requiring the payment of full backpay, plus interest, for
the duration of the layoff.”)21 As the Board noted in that case,
in situations involving unlawful unilateral changes, the normal
remedy is to order restoration of the status quo ante as a means
to ensure meaningful bargaining, and this policy has been ap-
proved by the Supreme Court. Id. (citing Fibreboard Paper
Products Corp. v. NLRB, 379 U.S. 203, 216 (1964)). See also

21 Although counsel for the General Counsel did not specifically ad-
dress this issue in his posthearing brief, Plastonics is cited in a separate
exhibit identifying laid-off unit employees.
234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Lapeer Foundry & Machine, 289 NLRB 952, 955–956 (1988);
Wilen Mfg., 321 NLRB 1094, 1100 (1996) (and cases cited
therein). Respondent has presented no specific contention re-
garding an appropriate remedy, other than to argue generally
that the General Counsel’s reliance upon Plastonics is mis-
placed due to its substantive defenses to the allegations of the
complaint, which have been addressed above. Respondent also
argued, at the hearing, that it would be unreasonable to require
Respondent to compensate its laid-off employees for many
months when there was no work available for them.
Based upon the above-cited authority, I find I am constrained
to order the traditional make whole remedy for the unlawful
unilateral layoffs here.
Accordingly, having found that the Respondent has engaged
in certain unfair labor practices, I find that it must be ordered to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act. Respondent shall be or-
dered to provide notice to its employees’ bargaining representa-
tive of layoffs undertaken for economic reasons, and upon re-
quest, to bargain over decisions to lay off employees, and to
bargain over the effects of such layoffs. The Respondent, hav-
ing unlawfully laid off bargaining unit employees for economic
reasons without providing the Union timely notice and a oppor-
tunity to bargain about the decision to lay off employees and its
effects, must offer those employees reinstatement and make
them whole for any loss of earnings and other benefits they
may have suffered as a result of the Respondent’s unlawful
conduct. Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at the rate
prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2011).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended22
ORDER
The Respondent, Rose Fence, Inc., Baldwin, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally laying off employees in the following bar-
gaining unit represented by Local 553, International Brother-
hood of Teamsters (the Union):

All full-time, regular part-time and seasonal drivers, installers,
driver-installers, helpers, installer-helpers, yard workers and
carpenters employed by the Employer at its facility located at
939 Church Street, Baldwin, New York excluding all office
clerical employees, professional employees, guards and su-
pervisors as defined in the Act

without providing the Union with timely notice and an oppor-
tunity to bargain about the decision to lay off employees and
the effects of the layoff.

22 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(b) In any like or related manner interfering with, restraining
or coercing employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Before implementing any layoff of bargaining unit em-
ployees notify and, on request, bargain with Local 553, Interna-
tional Brotherhood of Teamsters as the exclusive collective-
bargaining representative of employees in the bargaining unit,
over the decision to lay off employees and the effects of such
layoff.
(b) Within 14 days from the date of the Board’s Order, offer
the employees unilaterally laid off after the Union’s selection as
collective-bargaining representative 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.
(c) Make whole the unit employees described above any loss
of earnings and other benefits suffered as a result of Respond-
ent’s unilateral lay off of employees, in the manner set forth in
the remedy section of the decision.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, 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.
(e) Within 14 days after service by the Region, post at its
Baldwin facility copies of the attached notice marked “Appen-
dix.”23 Copies of the notice, on forms provided by the Regional
Director for Region 29 after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. In addition to the 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. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since July 2010.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the

23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ROSE FENCE, INC. 235

Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT lay off employees in the following bargaining
unit represented by Local 553, International Brotherhood of
Teamsters (the Union):

All full-time, regular part-time and seasonal drivers, installers,
driver-installers, helpers, installer-helpers, yard workers and
carpenters employed by the Employer at its facility located at
939 Church Street, Baldwin, New York excluding all office
clerical employees, professional employees, guards and su-
pervisors as defined in the Act

without providing the Union with timely notice and an oppor-
tunity to bargain about the decision to lay off employees and
the effects of the layoff.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of rights guaranteed to you
by Section 7 of the Act.
WE WILL, before implementing any layoff of bargaining unit
employees notify and, on request, bargain with the Union over
the decision to lay off employees and the effects of such layoff.
WE WILL, within 14 days from the date of the Board’s Order,
offer our employees unlawfully laid off after the Union’s selec-
tion as collective-bargaining representative full reinstatement to
their former jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed.
WE WILL make whole our unit employees who were unlaw-
fully laid off for any loss of earnings and other benefits suffered
as a result of our unilateral lay off of employees, less any inter-
im earnings, plus interest.
ROSE FENCE, INC.