Advice Memorandum


United States Government
National Labor Relations Board
Advice Memorandum
DATE: April 18, 2011

TO : William A. Baudler, Regional Director
Region 32

FROM : Barry J. Kearney, Associate General Counsel
Division of Advice

SUBJECT: Pacifica
Case 32-CA-25450

This case was submitted for advice as to whether the Employer violated Sections 8(a)(1) and (5) of the Act by:
(1) failing and refusing to comply with an obligation to meet and bargain with the Union over alternatives to
employee layoffs prior to implementing any such layoffs;
(2) breaching an alleged agreement with the Union that would have allowed employees covered under the Employer’s health plan to move to an equivalent Medicare plan as a cost cutting alternative to layoffs; and (3) referring the Union’s proposals to the Finance Committee of the Employer’s Board of Directors, an action the Union claims was in direct contravention of the collective-bargaining agreement’s delegation of bargaining authority to the Executive Director.

For the reasons stated below, we agree with the Region that the instant charge should be dismissed, absent
withdrawal, because none of the 8(a)(5) allegations have merit.
With respect to the first allegation, the Employer was not obligated to meet and bargain with the Union over
alternatives to layoffs because the Union waived its right to do so in the collective bargaining agreement.1 Article 12 of the parties’ collective bargaining agreement permits the Employer to “reduce the work force due to lack of work or other reasons including economic necessity,” but requires that the Employer “actively explore alternatives to the layoffs(s) before the effective date of the layoff, if so requested by the Union.” This language does not


1 Allison Corp., 330 NLRB 1363, 1365 (2000) (finding union waived right to bargain over decision to subcontract where provision of collective bargaining agreement specifically granted the employer the right to subcontract).


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