Local Union 36, Int'l Bhd. of Elec. Workers v. Nat'l Labor Relations Bd., Docket Nos. 10–3448–ag(L), 11–247–ag(CON), 11–329–ag(CON).

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtJOSÉ A. CABRANES
Citation706 F.3d 73
Docket NumberDocket Nos. 10–3448–ag(L), 11–247–ag(CON), 11–329–ag(CON).
Decision Date17 January 2013
PartiesLOCAL UNION 36, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL–CIO, Petitioner, Rochester Gas & Electric Corp., Petitioner–Cross–Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent–Cross–Petitioner.

706 F.3d 73

LOCAL UNION 36, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL–CIO, Petitioner,
Rochester Gas & Electric Corp., Petitioner–Cross–Respondent,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent–Cross–Petitioner.

Docket Nos. 10–3448–ag(L), 11–247–ag(CON), 11–329–ag(CON).

United States Court of Appeals,
Second Circuit.

Argued: Nov. 15, 2011.
Decided: Jan. 17, 2013.


[706 F.3d 78]


James R. LaVaute (Brian J. LaClair, of counsel), Blitman & King LLP, Syracuse, NY, for Petitioner Local Union 36, International Brotherhood of Electrical Workers, AFL–CIO.

James S. Gleason, Hinman, Howard & Kattell, LLP, Binghamton, NY, for Petitioner–Cross–Respondent Rochester Gas & Electric Corp.


Robert Englehart (MacKenzie Fillow, on the brief; Lafe E. Solomon, Acting General Counsel, Celeste J. Mattina, Acting Deputy General Counsel, John H. Ferguson, Associate General Counsel, and Linda Dreeben, Deputy Associate General Counsel, of counsel), National Labor Relations Board, Washington, D.C., for Respondent–Cross–Petitioner National Labor Relations Board.

Before: CABRANES, STRAUB, and LIVINGSTON, Circuit Judges.

Judge STRAUB concurs in the judgment and in the opinion of the court and files a concurring opinion.

JOSÉ A. CABRANES, Circuit Judge:

The principal question presented is whether Local Union 36 of the International Brotherhood of Electrical Workers (the “Union”), waived its right to bargain over the effects of a particular decision made by Rochester Gas and Electric Corp. (“Rochester Gas” or the “Company”).

The Union and Rochester Gas bring cross-petitions for review of the August 16, 2010 decision of the National Labor Relations Board (“NLRB” or the “Board”), in which the Board concluded that Rochester Gas had engaged in an unfair labor practice by refusing to bargain over the effects of its decision to discontinue its policy of permitting Union members to take company vehicles home at night (the “Vehicle Policy Change”), and by refusing to provide the Union with information regarding the alleged business reasons for the Vehicle Policy Change. The Board determined that Rochester Gas was not obligated to bargain with the Union about the Company's policy decision (as opposed to bargaining over the effects of that decision on employee benefits), concluding that the Board's General Counsel had withdrawn this allegation from his complaint. Finally, the Board granted the Union a modified version of a so-called Transmarine remedy,1 awarding back pay to the affected

[706 F.3d 79]

employees for the lost value of no longer being able to use company vehicles after work.

In its cross-petition for review, Rochester Gas argues that the Union, by operation of the parties' collective bargaining agreement (the “CBA”), waived its right to bargain over the effects of the Vehicle Policy Change, and that because the Union had no right to bargain over that change, it had no right to receive the information it requested. The Union, in turn, argues that the CBA required Rochester Gas to bargain with the Union over both the decision and its effects, and that the modified Transmarine remedy was insufficient to make the affected workers whole.

We hold that a two-step framework determines whether there has been a valid waiver of a statutorily protected right to bargain. We ask: (1) whether the applicable CBA clearly and unmistakably resolves (or “covers”) the disputed issue, whether with respect to the challenged management decision or the challenged effects, and (2) if not, whether the party asserting the right to bargain has clearly and unmistakably waived that right.

Applying this framework, we deny both petitions for review and enforce the order of the NLRB in its entirety. The CBA allowed Rochester Gas to make changes in employee work practices and to control the use of company property, but those provisions did not clearly and unmistakably allow the Company to forgo any negotiation with the Union over the effects of the Vehicle Policy Change, nor did they clearly and unmistakably waive the Union's right to bargain over the effects of the Vehicle Policy Change. Moreover, we conclude that the Board did not abuse its considerable discretion in granting the modified Transmarine remedy.

BACKGROUND
I. Facts

Rochester Gas is a utility company serving both natural gas and electricity customers in nine New York counties. The Union represents 395 Rochester Gas employees, including employees in the Trouble Maintenance and Repair (“TMR”) Department, which (as relevant here) includes a “low-voltage” group responsible for equipment carrying up to 480 volts. At the time of the Vehicle Policy Change, this low-voltage group was composed of seven technicians—who were responsible primarily for meter installations and replacements—and one inspector.

From at least 1990 until January 1, 2006, the Rochester Gas vehicle policy permitted low-voltage employees to drive Company vans to and from work and to keep them at their homes during their off-duty hours. Rochester Gas paid for the vehicles, maintenance, and gasoline, and withheld taxes from each employee's pay corresponding to the value of this benefit. The Company maintained this arrangement

[706 F.3d 80]

even though, as one employee testified, it was a “rare occurrence” for a low-voltage technician to proceed directly to a work location without first reporting to the Company offices.

In November 2005, Rochester Gas announced the Vehicle Policy Change by notifying the Union's president that, beginning on January 1, 2006, the low-voltage TMR employees would be required to park their service vehicles in the Company garage overnight. The Union repeatedly demanded that Rochester Gas bargain over the Vehicle Policy Change. The response of Rochester Gas relied upon a provision of the CBA stating that “the Company shall have the exclusive right to issue, amend, and revise safety and/or work rules, customs, regulations, and practices, except as expressly modified or restricted by a specific provision of this Agreement.” In the view of Rochester Gas, this provision of the CBA permitted it to make the Vehicle Policy Change without bargaining with the Union over either the decision or its effects on Union members.

On January 10, 2006, the Union filed a grievance with the Company's Labor Relations Analyst, arguing that “[w]ages, benefits, hours and working conditions are mandatory topics of collective bargaining,” and asserting that the Vehicle Policy Change changed the terms and conditions of employment for its affected members. By letters dated March 7, 2006, and June 5, 2006, the Union also requested the following from Rochester Gas: (1) a list of bargaining unit ( i.e., Union) jobs and personnel permitted to take Company vehicles home at night; (2) any Company analysis of the cost of the prior policy; (3) a list of non-unit personnel permitted to store Company vehicles at their homes; and (4) an indication of whether the Company had also changed its vehicle storage policy with respect to any non-unit personnel. By letter dated July 10, 2006, Rochester Gas responded solely to the first of these information requests. The Union then withdrew its grievance in order to pursue its remedies under the National Labor Relations Act (the “Act”).

II. Procedural History

The Union filed an unfair labor practices charge with the NLRB regarding the Vehicle Policy Change on June 13, 2006, and filed amended charges on August 17, 2006, and September 8, 2006. On October 31, 2006, the General Counsel of the Board (the “General Counsel”), having evaluated the charges made by the Union, commenced this proceeding against Rochester Gas, under the Act, by filing a formal complaint. The General Counsel's complaint alleged, inter alia, that Rochester Gas had made the Vehicle Policy Change “without prior notice to the Union[,] and without affording the Union an opportunity to bargain with [Rochester Gas] with respect to [the Vehicle Policy Change] and the effects of [the Vehicle Policy Change],” all in violation of § 8(a)(1) and (5) of the Act.2 Joint App'x at 12. On January 24, 2008, the General Counsel amended the complaint (the “Amendment”), eliminating its opposition to the decision itself and leaving only its allegation that Rochester Gas had failed to bargain with the Union “with respect to the effects of [the Vehicle Policy Change].” Id. at 24 (emphasis added).

[706 F.3d 81]

After a hearing on February 11, 2008, an Administrative Law Judge (“ALJ”) issued a written opinion concluding that Rochester Gas had violated § 8(a)(1) and (5) of the Act by refusing to bargain over the effects of the Vehicle Policy Change and by failing to provide requested information to the Union. Rochester Gas & Elec. Corp., Case 3–CA–25915, 2008 WL 2465240 (N.L.R.B. June 12, 2008) (“ Rochester Gas I ”), reprinted in Joint App'x at 186. The ALJ did not address whether the Vehicle Policy Change itself constituted an unfair labor practice because he determined that the portion of the complaint dealing with the policy decision itself had been withdrawn by the Amendment of January 24, 2008. Id. at 199. By its Decision and Order dated August 16, 2010, the Board affirmed the decision of the ALJ and ordered a modified Transmarine remedy. Rochester Gas & Elec. Corp., 355 N.L.R.B. No. 86, at 1–3, 2010 WL 3246661 (Aug. 16, 2010) (“Rochester Gas II ”). These cross-petitions followed.

In this appeal, Rochester Gas argues that the Board erred in (1) holding that Rochester Gas violated § 8(a)(5) of the Act by refusing to bargain over the effects of the Vehicle Policy Change; and (2) holding that Rochester Gas violated § 8(a)(5) of the Act by failing to provide information requested by the Union. The Union, in its petition, submits that the Board erred in (1) failing to address whether Rochester Gas violated § 8(a)(5) of the Act by refusing to bargain over both the decision to promulgate the Vehicle Policy Change and the effects of that decision; and (2) ordering only a modified ...

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  • MV Transportation, Inc. and Amalgamated Transit Union Local #1637, 28-CA-173726
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    • National Labor Relations Board
    • 10 Septiembre 2019
    ...one that also rejects the Board's clear and unmistakable waiver standard as applied by the Board. See Electrical Workers Local 36 v. NLRB, 706 F.3d 73 (2d Cir. 2013), cert. denied 134 S.Ct. 2898 (2014). Under its framework, the Second Circuit first determines “whether the issue is clearly a......
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    ...and on which the Board's position accords with the majority view. Compare Local Union 36, Int'l Bhd. of Elec. Workers, AFL–CIO v. NLRB , 706 F.3d 73, 81–82 (2d Cir. 2013) (adopting the Board's “clear and unmistakable waiver” test); Local Joint Exec. Bd. of Las Vegas v. NLRB , 540 F.3d 1072,......
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    ...waiver exists under the IRA and the NLRA. Compare Hogelin v. City of Columbus, supra, with Intern. Broth. of Elec. Workers v. N.L.R.B., 706 F.3d 73 (2d Cir.2013). And “decisions under the [NLRA] are helpful in interpreting the IRA, but are not binding.” Scottsbluff Police Off. Assn. v. City......
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    ...marks omitted).25 NLRB v. Thalbo Corp., 171 F.3d 102, 112 (2d Cir. 1999) (internal quotation marks omitted).26 See Local Union 36 v. NLRB, 706 F.3d 73, 82 (2d Cir. 2013).27 Starbucks, 679 F.3d at 77 (internal quotation marks omitted); see NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 89–......
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26 cases
  • MV Transportation, Inc. and Amalgamated Transit Union Local #1637, 28-CA-173726
    • United States
    • National Labor Relations Board
    • 10 Septiembre 2019
    ...one that also rejects the Board's clear and unmistakable waiver standard as applied by the Board. See Electrical Workers Local 36 v. NLRB, 706 F.3d 73 (2d Cir. 2013), cert. denied 134 S.Ct. 2898 (2014). Under its framework, the Second Circuit first determines “whether the issue is clearly a......
  • Heartland Plymouth Court MI, LLC v. Nat'l Labor Relations Bd., No. 15-1034
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 30 Septiembre 2016
    ...and on which the Board's position accords with the majority view. Compare Local Union 36, Int'l Bhd. of Elec. Workers, AFL–CIO v. NLRB , 706 F.3d 73, 81–82 (2d Cir. 2013) (adopting the Board's “clear and unmistakable waiver” test); Local Joint Exec. Bd. of Las Vegas v. NLRB , 540 F.3d 1072,......
  • Serv. Emps. Int'l Union (Afl-Cio ) Local 226 v. Douglas Cnty. Sch. Dist. 001, No. S–13–009.
    • United States
    • Supreme Court of Nebraska
    • 1 Noviembre 2013
    ...waiver exists under the IRA and the NLRA. Compare Hogelin v. City of Columbus, supra, with Intern. Broth. of Elec. Workers v. N.L.R.B., 706 F.3d 73 (2d Cir.2013). And “decisions under the [NLRA] are helpful in interpreting the IRA, but are not binding.” Scottsbluff Police Off. Assn. v. City......
  • Nat'l Labor Relations Bd. v. Pier Sixty, LLC, Nos. 15–1841–ag (L)
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 21 Abril 2017
    ...marks omitted).25 NLRB v. Thalbo Corp., 171 F.3d 102, 112 (2d Cir. 1999) (internal quotation marks omitted).26 See Local Union 36 v. NLRB, 706 F.3d 73, 82 (2d Cir. 2013).27 Starbucks, 679 F.3d at 77 (internal quotation marks omitted); see NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 89–......
  • Request a trial to view additional results

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