706 F.3d 73
2d Cir.2013Background
- Rochester Gas and Electric (the Company) announced a Vehicle Policy Change December 2005 requiring low-voltage TMR employees to park company vehicles in the garage overnight starting January 1, 2006.
- The Union argued the change affected terms and conditions of employment and demanded bargain over the decision and its effects; the Company relied on a CBA grant of unilateral rule-making to justify non-bargaining.
- The General Counsel amended the complaint to remove decision bargaining, focusing on bargaining over the effects of the Vehicle Policy Change; the ALJ found violations for failure to bargain over effects and for failure to provide information.
- The Board affirmed, concluding the CBA did not clearly cover or waive the effects bargaining right, and the Union did not waive the right; it also upheld a modified Transmarine remedy.
- The Union was also found to be entitled to information relevant to bargaining; Rochester Gas’s refusal to provide certain information was an unfair labor practice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver framework for effects bargaining | Union argues no waiver; contract does not clearly cover effects | Rochester Gas contends CBA covers effects bargaining | Two-step framework; waiver not clear and unmistakable; waiver not established |
| Whether the CBA clearly covered the effects of the Vehicle Policy Change | Union did not waive effects bargaining; not covered | Company argues CBA reserved rights to change vehicle use | CBA did not clearly and unmistakably cover effects bargaining |
| Decision bargaining vs. effects bargaining scope | Union seeks bargaining over both decision and effects | General Counsel removed decision-bargaining allegation; no review of that charging decision | Board properly declined to review the General Counsel’s charging decision; focus remained on effects bargaining |
| Duty to disclose information during bargaining | Union needed information to bargain effectively | Employer obligated to provide information only if reasonably related to bargaining | Employer’s failure to provide requested information violated § 8(a)(5) |
| Remedy for violation of the Act | Union seeks full make-whole remedy | Board’s Transmarine-based remedy appropriate | Board’s modified Transmarine remedy within its discretion and upheld |
Key Cases Cited
- N.L.R.B. v. United Techs. Corp., 884 F.2d 1569 (2d Cir.1989) (duty to bargain; waiver may be explicit or implied by conduct)
- Metro. Edison Co. v. N.L.R.B., 460 U.S. 693 (Supreme Court 1983) (waiver must be clear and unmistakable)
- N.Y. Tel. Co., 930 F.2d 1009 (2d Cir.1991) (waiver may be in contract language or conduct; must be clear and unmistakable)
- Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (Supreme Court 1991) (deference to Board’s reasonable interpretation of the Act/contracts)
- Bath Marine Draftsmen’s Ass’n v. N.L.R.B., 475 F.3d 14 (1st Cir.2007) (contractual coverage approach; waiver standards in labor context)
- Transmarine Navigation Corp., 170 N.L.R.B. 389 (NLRB 1968) (Transmarine remedy; limited back pay to encourage bargaining)