Accurate Die Casting Co.

National Labor Relations Board - Board Decisions

Feb 10, 1989

292 N.L.R.B. 982 (N.L.R.B. 1989)

982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Accurate Die Casting Company and Local 491,
United Automobile Aerospace and Agricultural
Implement Workers of America . Cases 3-CA-
12921, 3-CA-12998, 3-CA-13162, 3-CA-
13201, and 3-CA-13321
February 10, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On March 18, 1987, Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed cross-excep-
tions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions , to modify the remedy,2 and to adopt
r The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The judge found that replacement workers are presumed to support
the Union in the same ratio as to those whom they replace; that they
cannot be presumed not to support the Union; and the presumption ap-
plies as a matter of law and the burden is on the Employer to rebut it,
especially in the event of a strike , citing Pennco, Inc., 250 NLRB 716
(1980), enfd . 684 F.2d 340 (6th Cir. 1982), cert. denied 459 U.S. 994
(1982). However , subsequent to the issuance of the judge's decision, the
Board , on July 27, 1987, issued its decision in Station KKHI, 284 NLRB
1339 (1989), in which it found no basis for presuming that the strike re-
placements who have accepted employment and are therefore willing to
cross a picket line in order to go to work favor union representation, and
that, to the extent that Pennco relied on such a presumption , overruled
that case . The Board declined to maintain or create any presumptions re-
garding the union sentiments of strike replacements, but will require
"some further evidence of union nonsupport." Under the principles set
forth in Station KKHI, the Respondent was obligated to continue recog-
nizing the Union because, as the judge found, and we affirm, the Re-
spondent has presented no objective evidence that the Union's majority
has vanished. Moreover, a clear majority of the unit employees since Oc-
tober 30, 1985, have been former strikers , and there has been no evidence
presented that they abandoned the Union.
We find it unnecessary to pass on the judge's findings that the Re-
spondent unlawfully demoted a supervisor to a unit job while unreinstat-
ed strikers had not been recalled to work, recalled a striker replacement
who had been on layoff at a time when unreinstated strikers had not yet
been recalled, and laid off returned strikers while strike replacements
with less seniority were retained . As the judge noted, in Case 3-CA-
12472-R, which involved the same parties and issues in common with
this proceeding, the judge found that the strike involved is an unfair
labor practice strike rather than an economic strike, and the Board has
recently adopted the judge's findings . 292 NLRB 284 (1989).
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short- term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C. § 6621 . Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
the recommended Order as modified3 and set forth
in full below.
ORDER
The National Labor Relations Board orders that
the Respondent, Accurate Die Casting Company,
Fayetteville, New York, its officers, agents , succes-
sors , and assigns, shall
1. Cease and desist from
(a) Failing and refusing to furnish to the Union,
on request, the names and seniority dates of re-
turned strikers.
(b) Unilaterally implementing terms and condi-
tions of employment at variance with contractual
provisions and existing practice as of June 15, 1984,
with respect to payment for employees' birthdays
as paid holidays, taking vacations in time periods
shorter than a week, making layoffs and recalls on
basis of departmental and plant seniority and super-
seniority, the two-tier wage structure, advance
notice of layoff, contribution to employees' individ-
ual retirement accounts, time of drawing of vaca-
tion pay, the time allowed employees to vacate the
plant at the end of the shifts, and playing radios in
the plant.
(c) Laying off employees because of their sup-
port of the Union.
(d) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Furnish the Union, on request and within a
reasonable time , the names and seniority dates of
returned strikers.
(b) Restore all terms and conditions of employ-
ment to the status quo as it existed before the un-
lawful unilateral changes were made, to the extent
such changes were detrimental to the employees.
(c) Make whole any employees who may have
been detrimentally affected by the changes in terms
and conditions of employment, with interest on any
monetary losses the employees may have suffered,
in the manner set forth in the remedy section of the
decision.
(d) Offer the unfair labor practice strikers who
made unconditional applications to return to work
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
amendment to 26 U.S.C. § 6621), shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
a We do not adopt the judge's inclusion of a visitatorial clause in his
recommended Order . In the circumstances of this case , we find the provi-
sion unnecessary . Cherokee Marine Terminal , 287 NLRB 1080 (1988).
292 NLRB No. 106
ACCURATE DIE CASTING CO
seniority or any other rights or privileges previous
ly enjoyed, dismissing, if necessary, persons hired
after June 15, 1984, and make them whole for any
loss of earnings and other benefits suffered as a
result of the discrimination against them, in the
manner set forth in the remedy section of the deci
sion
(e) Offer Gerald Honors immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or
privileges previously enjoyed, and make him whole
for any loss of earnings and other benefits suffered
as a result of the discrimination against him, in the
manner set forth in the remedy section of the deci-
sion
(f) Remove from its files any reference to the un
lawful discharge and notify the employee in writ-
ing that this has been done and that the discharge
will not be used against him in any way
(g) Preserve and, on request, make available to
the Board or its agents for examination and copy
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(h) Post at its facility at Fayetteville, New York,
copies of the attached notice marked "Appendix "4
Copies of the notice, on forms provided by the Re
gional Director for Region 3, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material
(i) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
4 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 Nation
al 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
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
983
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT fail and refuse to furnish to the
Union, on request, the names and seniority dates of
reinstated strikers
WE WILL NOT unilaterally implement terms and
conditions of employment at variance with estab-
lished practice in our plant as of June 15, 1984, or
with those contained in our contract with Local
491, United Automobile, Aerospace and Agricul
tural Implement Workers of America, which ex-
pired on June 15, 1984
WE WILL NOT lay you off because of your sup
port for the Union
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL restore all terms and conditions of em-
ployment to the status quo as it existed before the
unlawful unilateral changes were made, to the
extent such changes were detrimental to the em
ployees
WE WILL make whole any employees who may
have been detrimentally affected by the changes in
terms and conditions of employment, with interest
on any monetary losses the employees may have
suffered
WE WILL offer Gerald Honors immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his layoff, less any net
interim earnings, plus interest
WE WILL remove from our files any reference to
the unlawful layoff of the above-named employee
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and notify him in writing that this has been done
and that the reasons for the failure to recall him
will not be used against him in any way
WE WILL offer the unfair labor practice strikers,
who made unconditional applications to return to
work immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed dismissing, if necessary, persons
hired after June 15, 1984, and WE WILL make them
whole for any loss of earnings and other benefits
resulting from the discrimination practiced against
them, less any net interim earnings, plus interest
WE WILL furnish the Union, on request and
within a reasonable time, the names and seniority
dates of returned strikers
ACCURATE DIE CASTING COMPANY
Thomas J Sheridan and Robert A Ellison Esqs, for the
General Counsel
Carl E Worboys Esq (Bogart Associates P C), of Syra
cuse, New York, for the Respondent
Thomas J Giblin and Stephen H Gelb Esqs of Cran
ford, New Jersey, for the Charging Party
DECISION
STATEMENT OF THE CASE
HAROLD B LAWRENCE Administrative Law Judge
These consolidated cases were heard by me in Syracuse
New York, on 19, 20, and 21 August 1986 having been
consolidated for purposes of hearing with the remand of
Case 3-CA-12472 The further amended complaint in
the above actions alleges that Accurate Die Casting
Company, debtor in possession and alter ego of Accurate
Die Casting Company the Respondent, committed unfair
labor practices in addition to and subsequent to those al
leged in the earlier case Inasmuch as the decision in
volved some issues in common with the remanded case
the decision was deferred until after issuance of the deci
sion in that case, with leave to counsel to prepare briefs
separate from the briefs submitted on the remanded case
The unlawful conduct alleged in the instant cases con
sists of unilateral changes made by Respondent from the
expired collective bargaining agreement and past practice
or from Respondent's final offer in negotiations failure
to furnish information requested by Local 491, United
Automobile, Aerospace and Agricultural Implement
Workers of America (the Union), discrimination against
the Union s bargaining committee chairman, Gerald
Honors, because of his union activities in general and be
cause he testified against Respondent in Board proceed
ings and discrimination against former sinkers in layoffs
and recalls respondent is thus alleged to have violated
Section 8(a)(1), (3), (4) and (5) of the National Labor
Relations Act (the Act)
In its answers and in the postheanng brief submitted
on its behalf, Respondent admits commission of most of
the actions attributed to it but contends that they were
not in violation of the Act Respondent readily concedes
that beginning in August 1985 it ignored seniority when
it hired rehired, and laid off workers and that it made
changes in the work rules and terms of compensation
without discussion with the Union and did so on the
basis of its precarious financial condition The Respond
ent alleged three affirmative defenses (a) that the prior
proceedings still pending were on the same grounds and
for similar relief (b) that Gerald Honors was laid off due
to the fact that there was no work for which he was
qualified, and (c) that the employer filed a chapter XI
proceeding, as a result of which the instant proceeding is
automatically stayed and may not proceed without an
order from the Bankruptcy Court of the Northern Dis
tnct of Ohio In addition, the Respondent has made a
number of other arguments of an affirmative nature
These affirmative defenses and contentions are taken up
at the appropriate points below
The parties were afforded full opportunity to be heard,
to call , examine , and cross examine witnesses , and to in
troduce relevant evidence Postheanng briefs have been
filed on behalf of the General Counsel, the Charging
Party, and the Respondent
On the entire record including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the respective parties I make the follow
mg
FINDINGS OF FACT
I JURISDICTION
Notwithstanding denials contained in the answers filed
on its behalf in these consolidated proceedings, the Re
spondent had already admitted the allegations pertaining
to jurisdiction in Case 3-CA-12472 which it contended
dealt with the matters at issue in this case and therefore
made this case unnecessary There is no evidence that
there has occurred any change of circumstances On the
contrary, throughout these proceedings it was apparent
that both Respondent and the Union continued to have
the jurisdictional characteristics that had been attributed
to them and had earlier been conceded The Respondent
continues to have offices plants, and facilities in several
States and continues to engage in interstate commerce
The Union's status as a labor organization was estab
lashed by the testimony of Anthony Spoto to the effect
that Local 491 is an affiliate of the International Union,
United Automobile Aerospace and Agricultural Imple
ment Workers of America (the Union) that it is the cer
tified representative of all the employees of Accurate
Die Casting for purpose of negotiation of terms of work
ing conditions, including wages hours, and other terms
and conditions of employment, that the membership of
Local 491 consists of the Respondents Fayetteville em
ployees that the local deals with Respondent concerning
grievances and labor disputes, and that the local files re
ports as required by law w.th various governmental
agencies
ACCURATE DIE CASTING CO 985
Accordingly, I find, as I did in the earlier proceedings,
that the Respondent' is and has been at all material times
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act I also find that
the Union has been at all material times a labor organiza
tion within the meaning of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background2
1 Earlier proceedings and findings
The decisions in Case 3-CA-12472 after the initial
hearing, issued on 30 May 1985, and after the hearing on
remand, issued on 5 January 1987, dealt with events
during and immediately after unsuccessful negotiations to
replace a collective bargaining agreement due to expire
on 15 June 1984 During the negotiations that lasted
from 3 May to 15 June 1984 when the employees went
out on strike, the union negotiator made several requests
for an inspection of the Company s books, which were
refused
Immediately prior to the expiration of the contract, the
Respondent made a final offer which the Union rejected
After the contract expired, Respondent implemented its
wage benefit proposal, which materially differed from
that contained in the expired collective bargaining agree
ment During the strike, replacement workers were
hired In mid December 1984, the strikers made an un
conditional offer to return to work, but Respondent
failed to recall a number of striking employees
The complaint in Case 3-CA-12472 was issued on 8
December 1984 and amended on 13 March 1985 It al
leged violations of Section 8(a)(1), (3), and (5) of the Act
in that Respondent had refused to furnish requested in
formation to the Union, consisting of financial records
which would indicate the financial condition of the Com
pany had failed to recall striking employees who had
unconditionally offered to return to work, and had im
plemented the terms of its final offer in negotiations de
spite the fact that it had not yet bargained to an impasse
On 30 May 1985, I issued a decision dismissing the com
plaint, finding, essentially, that company negotiators had
not placed the Company s financial condition in issue and
were therefore not obligated to comply with the Union's
request for data concerning the Company's financial con
dition
On 15 October 1985 the Respondent filed a petition in
chapter XI Disclosures resulting from the filing of the
petition raised questions whether newly revealed infor
mation required reconsideration of the evidence and
modification of my findmgs Accordingly, the matter
was remanded to me for all purposes, and another hear
ing was held The consolidated proceedings Cases 3-
i Respondent s counsel conceded during the hearing that Respondent
debtor in possession is the same corporation under the supervision of the
Northern District of Ohio
2 The matters narrated in this decision without evidentiary comment
are those facts found by me on the basis of admissions in the answers
data contained in the exhibits stipulations between or concessions by
counsel undisputed or uncontradicted testimony and in instances where
conflicts in the testimony did not warrant discussion the testimony
which I have credited
CA-12921, 3-CA-12998, 3-CA-13162 3-CA-13201, and
3-CA-13321, were consolidated with Case 3-CA-12472
for purposes of conducting a single hearing , but not oth
erwise consolidated with it
The evidence adduced at the hearing on remand estab
lished that during the period of negotiations and at times
before and after , Respondents officers and negotiators
concealed the true financial condition of the Company
from the Union , that throughout the period of negotia
tions and for several years before that the Company had
been in grave financial difficulty , that , though statements
made by the Respondents negotiators resulted in making
the Company s financial condition an issue in the negoti
ations, they refused to permit the Union to examine the
Company s books to verify what the Union claimed to
be Company s financial distress , denying that the Compa
ny was pleading poverty , that the refusal to permit the
Union access to the financial records was unjustifiable
that the information withheld was needed to enable the
Union and the employees bargaining committee to for
mulate proper demands and bargaining positions and to
make a decision whether to strike that the deprivation of
the information materially affected the employees deci
sion to strike and that they did so under a misapprehen
sion respecting the Company s financial condition The
employees had voted to strike on the basis of the status
of the negotiations as of 14 June 1984, regarding eco
nomic matters, but the true import of the negotiations at
that point was concealed from them by reason of Re
spondent s refusal to bargain in good faith as required by
Section 8(d) of the Act As a result , I considered the
strike to be an unfair labor practice strike rather than an
economic strike On 5 January 1987, I issued a decision
setting forth findings and conclusions as follows
1 Respondent is an employer engaged in com
merce within the meaning of Secion 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 The Union is the exclusive collective bargain
ing representative of an appropriate collective bar
gaining unit consisting of
All production and maintenance employees at the
Fayetteville New York facility excluding labora
tory employees draftsmen, office and clerical
employees professional employees guards,
watchmen and supervisors as defined in the Act
4 Respondent violated Sections 8(a)(1) and (5)
and 8(d) of the Act by
(a) failing and refusing to furnish to the Union,
on request, financial records necessary for and rele
vant to the Union s performance of its function as
the exclusive bargaining representative of the Unit
(b) unilaterally substituting the terms and condi
tions of employment contained in its contract pro
posal to the Union in place of terms and conditions
of employment contained in a contract which ex
pired the same date without a valid impasse having
been reached in its contract negotiations with the
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union and without affording the Union , as a result,
an opportunity to negotiate and bargain as the ex
elusive representative of Respondents employees
with respect to same
5 Respondent violated Section 8(a)(1) and (3) of
the Act by
(a) failing to recall striking employees within 5
days from the date they unconditionally offered to
return to work,
(b) by threatening to replace permanently em
ployees who went out on strike on 15 June 1984,
after rejecting Respondents final contract offer
6 These unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
2 The Union's continued status as the employees
bargaining representative
The Respondent denied the allegations of the com
plaint that the appropriate unit consisted of all produc
tion and maintenance employees at the Fayetteville, New
York facility, that the Union had been the representative
of the unit since 1955, and that the Union was the collec
tive bargaining representative for the unit These conten
tions are disposed of by my findings in Case 3-CA-
12472-R
The law is very clear regarding the obligation of an
employer to continue recognition of a union that has en
joyed uncontroverted majority status There is a rebutta
ble presumption of majority status, if an employer elects
to withdraw recognition, it must do so on the basis of a
bona fide belief that the union no longer has the support
of a majority of the employees, based on objective con
siderations See NLRB v Windham, 577 F 2d 805, 811
(2d Cir 1978) The burden of establishing that it had a
good faith doubt based on objective evidence is a heavy
one Replacement workers are presumed to support the
union in the same ratio as those whom they replace they
cannot be presumed not to support the union The pre
sumption applies as a matter of law and the burden is on
the employer to rebut it, especially in the event of a
strike Pennco Inc, 250 NLRB 716 (1980) enfd 684 F 2d
340 (6th Cir 1982), cert denied 459 U S 994 (1982)
Respondent has presented no objective evidence that
the Union s majority has vanished, a clear majority of
the unit employees since 30 October 1985 have been
former strikers, and there has been no evidence present
ed that they have abandoned the Union Respondent has
never expressly withdrawn recognition of the Union
The evidence adduced by Respondent evinces a cer
tarn degree of disarray in the affairs of Local 491 At the
same time, it clearly continued as a functioning organza
tion Spoto testified on cross examination that from and
after the commencement of the strike the operations of
the local were inefficent, tardy, ad hoc and somewhat it
regular Tax reporting was late for 1984, after a financial
secretary quit, the president did not appoint an interim
replacement for a year and half, several officers of the
local resigned and went back to work, the names of re
placement officers were on occasion omitted from forms
filed with the Government Spoto attributed these irregu
lanties to the difficulty of operating a local during a dif
ficult strike in which persons were afraid to come for
ward to serve as union officers and conceded that ad
ministration of the local was a shambles Nevertheless,
even Respondent's counsel conceded, in putting a ques
tion to Spoto, that [w]itnesses have testified in this pro
ceeding here that they have continued to attend union
meetings right through up to the current time He elicit
ed testimony from Spoto that the meetings were presided
over by the local s administrative officer, Seeber, and its
bargaining chairman, Honors Honors testified that he
maintained contact with Spoto on matters affecting the
employees as when payroll checks were dishonored and
on the occasion of the discharge of an employee Dale
Warner Spoto testified that he was kept informed of Re
spondent s actions in making unilateral changes by union
members working inside the shop There is no question
that once strikers were recalled, they constituted an
overwhelming majority of the Respondents work force
in the unit , and there is no evidence of abandonment of
the Union or cancellation of their membership
The evidence thus establishes that active interest in the
Union continues among the rank and file membership,
that meetings are continuing, and that basic administra
tion of the local and oversight of the members working
conditions has never ceased
On the evidence in the record, a good case can be
made for the proposition that Respondent, by its actions,
has continued to recognize the Union, regardless of what
its counsel now contend in this proceeding Certainly,
there is no evidence that Respondent ever expressly an
nounced its withdrawal of recognition of the Union to
the Union or anyone else Lee's testimony that no union
representatives approached management with employees
problems is simply untrue Granted that no one in the
shop did so, there is no question that Spoto and Lee
were in contact with each other Lee tried to set up a
meeting with Spoto when he arrived at Fayetteville but
canceled it on the advice of Respondents attorneys Sig
nificantly, he neither stated to Spoto nor testified at the
hearing that the reason was that the Union was not rec
ognized as the employees representative He and Spoto
had telephone conversations regarding the health insur
ance problems of employees and the particular problems
of several employees They discussed whether the medi
cal bills of John Sullivan s wife were covered by the
company plan during the strike or whether the Union
had to cover them Spoto attempted to discuss the unilat
eral changes being made and protested Hrynio's transfer
from a supervisory position to the unit after the com
mencement of the strike, and made a request for informa
tion which was refused However at no time was it ever
asserted by Respondent that the Union was not the rep
resentative of the employees Spoto, in the case of the
changes, was told that the Company could do whatever
it wanted In the case of the information request Lee tes
tified that the reason for noncompliance was that Re
spondent s personnel at that time were engaged in more
pressing matters, he did not claim that the Union lacked
status to make the request See Gentzler Tool & Die
Corp, 275 NLRB 881 (1985)
ACCURATE DIE CASTING CO 987
Finally , I note that my earlier findings must also be of
fective in this area I have found that the strike was an
unfair labor practice strike Even if a loss majority oc
curred as a result of that strike , therefore , Respondent
would be unable to avail itself of the defense , because it
would have contributed , by its unlawful actions, to the
loss of the majority Chicago Castings Co, 256 NLRB
688 fn 2 (1981)
3 Effect of filing petition under chapter XI of the
Bankruptcy Act
The Respondent has acted under a complete misappre
hension of the consequences of filing the petition under
chapter XI of the Bankruptcy Act in relation to its obli
gations under the National Labor Relations Act In its
answer , the Respondent has alleged, as a third affirma
tive defense , that these proceedings are automatically
stayed by reason of such filing , and may not proceed
without an order of the bankruptcy court
The automatic stay provisions of chapter XI of the
Bankruptcy Act are not applicable to the instant pro
ceedings Goldstein Co, 274 NLRB 682 (1985), Phoenix
Co, 274 NLRB 995 (1985)
Accordingly , the third affirmative defense must be dis
missed
The Respondent also misconceives the effect general
ly, for it contends that it is , by reason of filing in chapter
XI, exonerated from its obligation to discuss changes in
work rules and compensation with the Union This con
tention is based on Respondent's reading of the decision
in Bildisco & Bildisco v NLRB, 465 U S 513 (1984), that
ignores several extremely important observations con
tained that rejection of collective bargaining agreements
by the bankruptcy court should be governed by a stricter
standard than that which governs the rejections of other
executory contracts , that it must be based on a reasoned
finding why rejection should be permitted , and that the
bankruptcy court, being a court of equity must balance
the equities and consider , among other things , the impact
of rejection of the collective bargaining agreement on
the employees Thus, in permitting unilateral rejection
prior to formal rejection by the bankruptcy court the
Supreme Court implicitly presupposed that such action
by the employer would be based on equitable consider
ations that would support a subsequent ratification of
that act by the bankruptcy court
In the present case however , that might not have been
possible , for I have found that the Respondent has been
guilty of lawless conduct that would have had to be con
sidered in the bankruptcy court In any event , the result
is controlled by the amendement of section 1113 of the
Bankruptcy Act, which now provides a different proce
dure for resolution of situations involving rejection of
collective bargaining agreements
Section 1113 provides that a debtor in possession "may
assume or reject a collective bargaining agreement only
in accordance with the provisions of this section " It is
then provided that the debtor in possession shall make
application for such rejection only after proposing neces
sary modifications to the authorized representative of the
employees, providing it with the relevant information
needed to evaluate the proposal If a proposal that meets
the statutory requirements is rejected by the authorized
representative without a good cause ," a hearing will be
scheduled on such application
Respondent never proposed changes to the Union and
never filed an application for rejection of the collective
bargaining agreement with the bankruptcy court, and in
its postheanng brief asserts that section 1113 is inapplica
ble to this case According to Respondent , [a]n exami
nation of that section indicates that it speaks to only col
lective bargaining agreements in effect during the bank
ruptcy proceeding At no juncture does the section
apply to the case of a trustee or debtor in possession op
erating without a collective bargaining agreement'
The most cursory examination of the statute suffices to
disclose the untenability of that argument The statute
clearly recognizes the basic propositions of labor law ap
plicable in this case, namely, that following the expira
tion of a collective bargaining agreement , terms and con
ditions of the agreement remain in force during the pend
ency of negotiations , and an employer may not imple
ment the terms of his offer or other changes , unless and
until negotiations have reached an impasse Inasmuch as
Respondent violated Section 8(d) of the Act by failing to
negotiate with the Union in good faith, there could be no
impasse in its negotiations with the Union It is unques
tionable, therefore , that aside from considerations arising
from the filing of the petition in chapter XI, Respondent
would have been obligated to continue giving effect to
the terms and conditions of employment as set forth in
the expired collective bargaining agreement As I have
noted , this might even have been true under Bildisco
Under section 1113, as amended , it certainly is true
The obligations which survive the expiration of a col
lective bargaining agreement are among the most impor
tant that are contained in the agreement, relating to
terms and conditions of employment such as wages,
hours, fringe benefits, and other matters Labor peace is
preserved by the maintenance of established practices
during the interim period , even if they are not explicily
covered in the expired agreement The burdens that sur
vive, therefore, cannot be ignored, and section 1113 does
not ignore them
Subdivisions (e)- and (f) of the section make explicit
provision for the situation that existed in the present
case
(e) If during a period when the collective bar
gaining agreement continues in effect, and if essen
tial to the continuation of the debtor s business, or
in order to avoid irreparable damage to the estate
the court , after notice and a hearing, may authorize
the trustee to implement interim changes in the
terms , conditions , wages, benefits, or work rules
provided by the collective bargaining agreement
(f) No provision of this title shall be construed to
permit a trustee to unilaterally terminate or alter
any provisions of a collective bargaining agreement
prior to compliance with the provisions of this sec
tion
There is no reference in subdivision (e) or in any part
of section 1113 to executory contracts Reference is
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
made to applications for rejection of a collective bar
gaining agreement and to `a penod' when it contra
ues in effect There is no reference to periods preceding
the expiration date of an agreement nor to any period
during the term of an agreement The sole reference is to
the period when it is effective, and that is a matter which
is determined by the above mentioned principles of labor
law The penod when a collective bargaining agreement
continues in effect" includes a period when its replace
ment is being negotiated and in which no impasse has
been reached
Manifestly, Respondent, in order to make the changes
that it sought in a lawful manner, was required by the
provisions of section 1113 to propose them to the Union,
as the authorized representative of the employees in the
unit, and, failing to obtain agreement by the Union to
such changes, to make application to the bankruptcy
court
By making the changes unilaterally, Respondent vio
lated the Bankruptcy Act as well as the National Labor
Relations Act
B Alleged Violation of Section 8(a)(1)
Implementation of Contract Proposals
It is alleged that on or about 15 June 1984, Respond
ent substituted the terms and conditions of employment
contained in the expired collective bargaining agreement,
without a valid impasse having been reached in the con
tract negotiations and without affording the Union an
opportunity to negotiate
The same allegation was made in the complaint in
Case 3-CA-12472
Respondent's first affirmative defense to the further
amended complaint is as follows
In regard to the allegations of IX, X and XI, there
are prior proceedings pending on the same grounds
and for similar relief
The Respondent's contention is obviously correct inso
far as the above mentioned allegation is concerned but it
is not at all clear that it applies to any of the allegations
of numerous unilateral acts on the part of Respondent
that are alleged additionally in the further amended com
plaint and it is clear that it cannot apply to some of those
allegations These are actions that Respondent is alleged
to have taken on 12 and 31 August 15 October, and 22
November 1985 and on 1, 14 and 16 April and 17 June
1986 Violations of the reinstatement rights of strikers by
ignoring seniority and supersenionty rights probably
overlap the allegation of implementation of the final con
tract offer they are alleged to have occurred in Septem
ber 1985 and on 8 October and 22 November 1985, as
well as later in the case of Gerald Honors I see little
point to creating confusion by trying to separate out the
overlapping charges in cases where there may be some
doubt This is definitely a situation in which any doubts
should be resolved against the Respondent as a result of
its other well documented violations of the Act
With respect to the allegation of implementation of the
final contract offer, after the consolidated hearing I
issued the decision in the case on remand, Case 3-CA-
12472 in which that allegation had first been made I
found that the Respondent had, in fact, violated Section
8(a)(1) and (5) and Section 8(d) of the Act on or about
15 June 1985, by substituting its contract proposal terms
for terms of the expired collective bargaining agreement
I set forth the text of my finding with respect to that al
legation in section A, above It obviously resolves the
same point that is at issue here Counsel for the Union
concede in their posthearing brief that the issue is moot
insofar as implementation of the final offer is con
cerned and that the violations may be corrected by the
remedy ordered in the decision on remand Counsel ex
presses concern, however, that there may be a failure of
remedy in that proceeding in the event of reversal of my
decision or some lapse in enforcement Counsel seems to
be suggesting that in the event of a reversal, it would be
nice to have another order granting the same relief con
tinuing in effect notwithstanding the ruling by the Board
I do not think we should do that
An order would be based on precisely the same record
that underlies the remand decision in Case 3-CA-12472-
R Because both orders stand on the same evidentiary
foundation, the Board s determination of the validity and
propriety of the order in that case is determinative of the
issue in these proceedings as well
Accordingly, so much of the first affirmative defense
as applies to the allegation that Respondent implemented
its final offer is sustained, it is in all other respects
denied
C Alleged Violations of Section 8(a)(1) and (5)
1 Unilateral changes made by Respondent without
affording the Union notices or opportunity to
bargain
The further amended complaint sets forth a number of
instances in which Respondent unilaterally made changes
in working conditions in the plant at Fayetteville con
sulting neither the union personnel in the plant such as
Gerald Honors nor Anthony Spoto, the International
representative who had acted as chief negotiator With
only two exceptions I find all such actions to have been
taken in violation of Section 8(a)(1) and (5) of the Act
The Respondent in its answer, admitted that on 14
January 1986 it unilaterally discontinued treating em
ployees birthdays as paid holidays and discontinued al
lowing them to take vacation time in units of less than 1
week, both of which steps reflected changes from estab
lished practice Saloon Inc 247 NLRB 1105 1108
(1980) enfd mem 647 F 2d 171 (9th Cir 1981) Robbins
Door & Sash Co 260 NLRB 659, 665 (1982)
The Respondent denied the allegations regarding the
remaining unilateral changes, but they were proven by
testimony from Respondent's own personnel officer,
James Lee by uncontroverted testimony by Honors and
by copies of the notices that Respondent in some in
stances posted to announce the changes
Lee testified that departmental seniority was aban
doned as a basis for layoffs and recalls toward the end of
September 1985, which Honors confirmed by his testi
mony that the change was made after his own recall on
ACCURATE DIE CASTING CO 989
12 August 1985 Lee testified that Frank Ryan, the gen
eral manager , decided (with Lee's concurrence) to deter
mine who would be laid off and who would be recalled
on the basis of the particular employees performance,
the idea being to obtain and keep the best workers The
criteria were to be employees versatility productivity,
and attendance Lee readily conceded that as a result of
the new policy, some strikers were recalled ahead of
other strikers with greater seniority, and seniority ceased
to be a factor in situations involving bumping "
Honors testified to the effects of the change of policy
in several specific applications He was laid off on 1
April 1986, while 40 employees with less seniority in
cluding strike replacements, were retained A replace
ment named Tracy Crow, who had been hired as an in
spector in the fall of 1984, was laid off, she was subse
quently recalled ahead of all the unreinstated strikers, de
spite their seniority Frank Hrynio, a newly appointed
supervisor, was returned to the unit to operate a die cast
ing machine , though there were unreinstated strikers
with greater seniority in the bargaining unit than he had
Under a modification of the collective bargaining
agreement, Respondent had accorded supersenionty to
officers of the local, members of the shop committee,
and the shop chairman Supersenionty was not, of
course, observed when Honors was laid off Cone Mills
Corp, 156 NLRB 370 (1965)
Respondent has contended that Honors was not enti
tled to supersenionty because he was not active on
behalf of the Union The evidence, however, is that he
continued to work for the Union inside the plant, though
Lee testified that Honors never contacted him in any
union capacity The reason for that is not hard to find
Respondent s campaign of intimidation had succeeded
Spoto testified that employees were afraid to take office
in the Union or to present grievances Nevertheless,
Honors continued to function as shop chairman to the
extent indicated elsewhere in this decision keeping
Spoto informed and as he testified talking to people
who approached him to discuss union concerns
Another proven unilateral action that violated the Act,
alleged in an amendment to the complaint made at the
hearing, was that around 8 August 1986, Respondent
eliminated its two tier wage structure, effective 11
August 1986 All employees at the higher tier were
brought down to the lower tier The notice announcing
it is in evidence Lee conceded that the elimination of
the two tier system affected only the reinstated strikers
Lee testified to a number of instances in which Re
spondent unilaterally acted to change established prac
tices some of which were of longstanding On 22 No
vember 1985, when six employees were laid off they
were not given the customary 48 hours advance notice
When Honors was laid off on 1 April 1986 he received
notice of less than 2 hours On 16 April 1986, Respond
ent took four actions it discontinued contributions of 25
cents an hour that it had been making to individual re
tirement accounts set up for employees, it discontinued
permitting employees with 5 years of continuous service
to draw vacation pay on the first of May rather than on
their anniversary dates it promulgated a rule requiring
workers to leave the plant within 15 minutes of the end
of their shift , and it banned radios in the plant , threaten
ing to confiscate and donate to chanty any radios found
there Harvard Folding Box Co, 273 NLRB 841, 845
(1984) (vacation pay), Hedison Mfg Co, 249 NLRB 791
(1980) (radios) The threat to confiscate the radios was a
violation in itself Dunham Bush Inc 264 NLRB 1347
(1982) (noting that [t]he Board has not limited its define
tion of a modification of a contract only to changes of
basic terms or conditions of employment 264 NLRB
at 1349 )
All the foregoing changes constituted violations of
Section 8(a)(1) and (5) of the Act Two other instances
alleged in the complaint do not
The first is the alleged failure to pay a wage increase
that was supposed to go into effect on 15 June 1986,
under the terms of Respondents last offer during its ne
gotiations with the Union The allegation that Respond
ent refused to pay it is denied in Respondent 's answer,
but Lee testified that it did not go into effect and that he
notified Morns Brown , a union committeeman , that Re
spondent was not going to pay it (Another instance, un
doubtedly , of Respondents actual recognition of the
Union 's status as the unit's bargaining representative )
This situation is distinguishable from that of the individ
ual retirement accounts, in which case an item contained
in the final offer was implemented and then canceled
The June pay raise was an item of the final offer that
was never implemented at all
Notwithstanding the phraseology employed by the
General Counsel there was no single , integrated, one
piece implemented final offer " Respondent made a final
offer After the collective bargaining agreement expired
it made a number of unilateral changes, some of which
had been part of the final offer and some of which had
not been The changes must be considered individually
By alleging a violation in this instance the General
Counsel in effect asserts that Respondent would be in
violation of the Act no matter what it did payment
would have violated the Act as an implementation of an
offer without impasse having been reached and failure to
pay, according to the complaint would also violate the
Act I cannot agree that the fact that Respondent did not
take an unlawful action pursuant to its final offer under
these circumstances places Respondent in violation of
Section 8 (a)(1) and (5) of the Act
The other situation involves a failure of proof Re
spondent was alleged to have terminated health incur
ance coverage for employees in the unit The testimony
establishes that the Union received complaints from em
ployees that their claims were not being paid by the in
surance carrier There is no testimony that any claimant
was advised that the plan had been discontinued howev
er Spoto testified that the refusal of the insurance coin
pany to pay the claims was based on asserted nonpay
ment of premium by Respondent but the reason for such
nonpayment was not given Nonpayment of premium is
not necessarily due to a decision to terminate a health in
surance plan, and even Spoto was aware of the distinc
tion when he testified
I was besieged with phone calls from the retirees
Jeff Honors and a number of other mem
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bers that had no health insurance, or at least
their medical bills were being denied for nonpay
ment of premium
When he called Lee, he was advised, not that coverage
had been terminated, but that
there was some mixup, or some misunderstanding
with, at that time it was Equitable Life and then
subsequently they changed to Massachusetts Gener
al
Lee and James Richter, Respondents vice president
testified that processing of claims was interrupted by a
controversy between Respondent and one or both of the
insurance companies involved Lee testified that the plan
involved was a self insured plan administered by Equita
ble Life Assurance Society of the United States, with
funding provided by Respondent Equitable ceased to ad
minister the plan though funds were on deposit in Chem
ical Bank Respondent contended that Equitable s action
was improper and litigation resulted Respondent in the
meantime arranged for what Lee termed as coverage"
by Massachusetts Mutual, according to Lee, `they dupli
cated the plan " The General Counsel apparently be
lieved that a letter sent to retirees showed a cessation of
contributions by the Respondent, but it is apparent from
the letter itself that reference is made to the retirees on
contributions for supplemental medicare payments
Lee's testimony indicated a controversy between Re
spondent and Equitable pertaining both to administrative
fees and the maintenance of a fund for payment of
claims Lee pointed out that processing was resumed and
that at the time of the hearing only three extremely small
claims still awaited payment He testified that resumption
of payment of claims was due, at least in part, to a per
sonal financial contribution made by George Slyman,
Respondents board chairman
The evidence that Respondent defaulted in making
payments to a health fund that it was required to make is
not really clear and there is no evidence that would sug
gest that the issue between the Respondent and the insur
ance companies administering the plan was a feigned
issue , or one instigated by Respondent or anything other
than a legitimate dispute The merits of that controversy
are, of course beyond the purview of these proceedings
There is not even evidence that Respondent took steps
to terminate the plan the evidence is that processing of
claims was resumed, after insurance companies were
changed
On the basis of the evidence in the record I find that
no violation of the Act by reason of Respondent's failure
to pay premiums has been established by a preponder
ance of the evidence
2 Refusal to furnish information
On 13 September 1985, Spoto addressed a letter to Lee
as follows
The following information is hereby requested
concerning the names and seniority dates of all the
strikers who have been recalled to work In addi
tion, I would like to know what insurance is pres
ently covering hospital and medical for the retirees
Your cooperation would be most appreciated
It is alleged that Respondent refused to furnish the in
formation, that was necessary and relevant to the
Union s performance of its function as the bargaining
agent for the unit Spoto testified that he never received
a response
Lee testified that he told Spoto in a telephone conver
sation which carrier was involved and that they had
some discussion of the matter Lee also testified that he
did not furnish the information concerning the names
and seniority dates of the recalled strikers, but that the
reason for the failure to do so was the pressure of other
matters, such as the retiree insurance the argument be
tween Respondent and Equitable Life over billing and
other problems going on day to day As he put it, It
was a nonurgent thing, so we left it Subsequently,
when he found time to think about it, he did not furnish
the information because he could not understand why
the Union needed information about its own members
By then the chapter IX petition had been filed
It is well settled that a union is entitled to discovery
type disclosure, and a union s request for information re
specting unit employees is presumptively relevant to the
union s performance of its duties as the collective bar
gaining representative of the unit NLRB v Acme Indus
trial Co, 385 U S 432 (1967) The presumption is rebut
table However, Respondent has offered no evidence
whatsoever to rebut that presumption The pertinency of
the information requested is obvious because Respond
ent s blatant violations of the seniority rules in making
layoffs and recalls of both strikers and nonstrikers Ac
cordingly, the failure of Respondent to furnish the names
and seniority dates of returned strikers violated Section
8(a)(1) and (5) of the Act
The request regarding the identity of the insurance
carrier covering the hospital and medical expenses of the
retirees provides the reverse situation Retirees are not
employees within the meaning of the Act Allied Chemi
cal Workers Local I v Pittsburgh Plate Glass Co 404 U S
157 (1971) Nevertheless, a finding that the Union had a
need for requested data concerning retirees benefits in
order to bargain more intelligently for the active em
ployees will sustain a finding that refusal to furnish such
data violates Section 8(a)(5) of the Act Union Carbide
Corp 197 NLRB 717 (1972), Connecticut Light & Power
Co, 220 NLRB 967 (1975), affd 338 F 2d 308 (2d Cir
1976) Nevertheless, a burden, albeit a light one, rests on
the Union seeking information respecting retirees, who
are not persons in the bargaining unit , to establish that
the information sought is relevant and necessary for pur
poses of bargaining for employees in the bargaining unit
Connecticut Light & Power Co, supra citing Union Car
bide Corp supra In the present case however the Union
has made absolutely no showing of the purpose for
which the information was sought or the issue to which
it is relevant Spoto s testimony which the information
was sought or the issue to which it is relevant Spoto s
testimony that he was receiving many complaints from
retirees suggests that the purposes of his request for in
ACCURATE DIE CASTING CO 991
formation was to assist the retirees personally rather than
to enable him to perform duties related to his obligations
to the members of the bargaining unit The fact that the
Union knew that some active employees were not re
ceiving health insurance payments does not alter the pos
ture of the case , information was not sought respecting
them
Consequently, even if Respondent made no response
to the request for information respecting the retirees, I
would not find any liability In any event, I credit
Spoto s testimony that he received no response only to
the extent that he undoubtedly received no written re
sponse to his letter He did not controvert Lee's testimo
ny that they dicussed the matter on the telephone on a
conversation during which Lee gave him the information
he had requested Accordingly, I find no violation of
Section 8 (a)(1) and (5) of the Act in this regard
D Alleged Violations of Section 8(a)(1) (3) and (4)
1 Layoff of Gerald Honors because of his support
of the Union
It is alleged, and admitted, that Respondent laid off
Gerald Honors on 1 April 1986, and has refused to rein
state him since It is further alleged, but denied, that the
reason for Rospendent s action was Honors support of
the Union and engagement in concerted protected activi
ties, and his testimony in support of unfair labor practice
charges in Cases 3-CA-12921, 3-CA-12998, and 3-CA-
13162 Consequently Respondent is alleged to have vio
lated Section 8(a)(1), (3), and (4) of the Act
In reviewing a discharge allegedly in violation of the
Act attention is given to circumstantial factors such as
the timing the employers knowledge that the employee
was engaged in union activities , the existence of an im
mediate background of other coercive unfair labor prac
tices the inadequacy of the reasons asserted by the em
ployer for discharging the employee, and the record as a
whole See Coty Messenger Service, 272 NLRB 268 fn 7
(1984), Baker Trucking Co, 241 NLRB 121 (1979), enfd
626 F 2d 866 (9th Cir 1980)
Honors worked for Accurate Die Casting from 1948
to 1958 and from 1960 to the date of his layoff He spent
the entire time in the castings department as a die casting
machine operator, section leader automatic die casting
machine operator, and setup man He has all the occupa
tional classifications in the department with seniority
dating from 1961 He was the highest ranking union offi
cial in the plant The evidence establishes the following
chronology
a He was one of the strikers who offered to return to
work in December 1984
b He testified at the hearings in Case 3-CA-12472,
which began 21 March 1985 and continued on 1 2 and 3
April 1985
c Honors was recalled 12 August 1985
d From time of recall unit unit 1 April 1986, Honors
openly transacted union business as required reporting
to Spoto instances of disregard of seniority provisions of
the collective bargaining agreement , dishonor of pay
checks and failure of the health insurance carrier to pay
claims of retirees and currently employed workers He
and Spoto communicated with each other twice a week
by telephone through the company switchboard, at
which Spoto sometimes left messages for Honors The
last such message was left with the switchboard on 26
March 1986
e Unfavorable newspaper articles appeared in the
local press from time to time throughout the summer and
fall of 1985 At the hearing , counsel for the General
Counsel explained the allegation against Respondent as
charging that it took certain unlawful actions, only
against Honors, on the basis of managements belief that
the unfavorable publicity was being instigated by
Honors
f On 21 March 1986, Slyman visited the plant He saw
Honors and waved at him
The parties stipulated to admission into the record sub
ject to my determination in the course of deciding this
case of the weight to be accorded to it , of a portion of
the transcript in Steeler v Accurate Die Casting Co, a
proceding pursuant to Section 100) of that (US D C
No Dist N Y , case 86-CV-746) and a copy of the
order of the United States district judge The testimony
is by Louie Albanese , who testified that he had a conver
sation with Bernie Dapolito
Q Okay Would you tell us gust what happened,
what the conversation was to the best was to the
best of your recollection
A I said to Mr Da Polito , I said , `Too bad that
George saw Jeff that day or he would probably still
be working and Bernie said-well Mr Da Polito
said that every phone call that comes in to the tele
phone office has to be recorded and Mr Ryan saw
the list of calls that Jeff was getting and at that time
it was when we were having all the publicity in the
papers in Syracuse and I surmised that he meant
that Mr Ryan [vice president of Accurate Die
Casting Company] let him go
The transcript was not available at the time of the
hearing, and now that I have had an opportunity to con
sider it I reject it as the surmise of a witness based on no
objective criteria of fact and insofar as Dapolito s re
marks are concerned , as patently hearsay The order of
the district judge enjoining Respondent from engaging in
violations of Section 8(a)(1) and (3) and from laying off
employees because of their union activity or because
they gave testimony in support of unfair labor practice
charges filed by the Union was based on the district
judge 's finding that reasonable cause existed to believe
that Respondent had committed such actions It was not
a final determination Nothing in the Decision and Order
in that proceeding and nothing in the transcript of the
Albanese testimony actually proves the charge They
will be made part of the record for purposes of review,
but I reject them as exhibits and have accorded no evi
dentiary weight to them
g On 1 April 1986 , while Honors was in Dapilto s
office , Ronnie Reeves, the supervisor for the casting de
partment , entered and gave him a notice of layoff, effec
tive 1 1/2 hours later Daplito remarked, I had nothing
to do with that It came right from the top No reason
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was stated in the notice or given by Dapolito or Reeves
for the action.
h. In conversations had at a later date with Lee by
two employees , Lee told them that the reason for
Honors' layoff was his inability to do any of the work in
the unit that was available.
The General Counsel asserts that the foregoing presen-
tation establishes a discriminatory layoff. In essence, the
case consists of evidence of Honor's open union activity,
his testimony against Respondent in an unfair labor prac-
tice proceeding , high level of experience on the job,
short notice of layoff, failure to state any reason at the
time of the layoff, the remark by Dapolito, and subse-
quent assertion of a pretextual reason by a management
representative.
The case is not without its difficulties . Honors was
shop chairman and his activity on behalf of the Union
was never a secret . There is not a scintilla of evidence to
support the General Counsel' s assertion that he was laid
off in the belief that the unfavorable publicity was being
generated by him . The only remark attributable to man-
agement in connection with the publicity is Lee's remark
that the Company was hurt by the publicity and that it
was affecting the outlook for improvement in the job sit-
uation . That remark does not remotely touch the issue of
Honor 's involvement in the publicity. Aside from the
publicity aspect , there appears no evidence of hostility to
Honors by reason of his union activity; he was recalled
to work and continued working through the winter of
1985- 1986 , a time when the barrage of adverse publicity
was at its worst.
The case under Section 8 (a)(4) is nonexistent . Honors,
on cross-examination , disclaimed any knowledge of dis-
crimination because anyone testified (he gave no evi-
dence at all on direct examination that would have estab-
lished such discrimination):
Q. (By Mr. Worboys) Sir, let me ask you specifi-
cally; do you know any employee who Accurate
Die Casting had discriminated against for filing
charges or giving testimony?
A. I know of none.
I discern no connection between any of the events of
this case and the timing of Honors ' layoff.
Nevertheless , a prima facie case of violation of Section
8(a)(3) is seen to exist when consideration is given to fac-
tors such as the long and increasingly bitter strike, which
I have determined to be an unfair labor practices strike,
the position that Honors held as a union leader in the
shop , the Respondent 's persistent refusal to consult with
the Union regarding a long series of significant unilateral
actions violative of the expired collective -bargaining
agreement and established practice in the plant , the fail-
ure to state any reason to Honors at the time of his
layoff, Dapolito's attribution of the layoff decision to top
management , and Lee's attribution of the action to a pur-
ported , reasoning that does not withstand scrutiny. Con-
sequently , there was enough in the record to impose on
Respondent the burden of showing a lawful business
reason for its action , Wright Line , 251 NLRB 1083, 1089
(1980), enfd . 662 F . 2d 899 ( 1st Cir . 1981), cert . denied
455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393, 403 (1983).
The Respondent's explanation for the layoff of Gerald
Honors, as set forth in its answer , is as follows:
The named individual was laid off due to the fact
that there was no work for which he was qualified.
Lee testified that , while he did not participate in the
initial decision , he was asked to and did review the basis
on which the recommendation for layoff was made:
Q. On what grounds?
A. Lack of versatility, he could not work on
some of the larger machines ; just , they didn 't think
he was one of the better workers at that time.
Q. And if the company gets more business,
what's the company 's position as far as the recall of
Mr. Honors?
A. He would be called back.
Q. . . . what 's the company 's view in regard to
him as his ability to work?
A. He's a medicore operator.
In a meeting in his office with two employees named
Janette Morse and Leona Snyder , Lee had a discussion
which he quoted in his testimony as follows:
Q. And was there anything else discussed that
you recall?
A. We discussed-they asked me about Jeff
Honors and why was he laid off.
Q. Okay. And what did you say in response to
this?
A. I told them that the reason he was laid off
was because there was a lack of work in the ma-
chines that he was most used to working on.
The pretextual nature of this defense is shown by the
testimony of Honors , Morse, and Snyder and by the
complete failure of the Respondent to rebut it by pro-
ducing persons in its employ who would have been in a
position to do so if the facts were contrary to the testi-
mony.
Honors, of course, testified to his lengthy experience
with the company and his qualifications in the castings
department . He testified to his layoff on short notice and
without the statement of any reason . The failure to state
a reason for discharge or layoff is recognized as a cir-
cumstance to be considered in determining whether a
violation of the Act is involved. Honors testified to Da-
polito's comment that the order for his layoff came
"right from the top ." Although I find no connection es-
tablished to the visit to the plant made by Slyman, the
board chairman , several days before Dapolito's remark,
by itself, is sufficient to require an explanation from Re-
spondent. Respondent 's failure without explanation to
produce Dapolito and Reeves as witnesses compels me
to infer that had they testified their testimony would
have corroborated that of Honors.
The two employees to whom Lee had spoken, Janette
Morse and Leona Snyder, visited the plant to find out
about the prospects for returning to work. Their testimo-
ACCURATE DIE CASTING CO
ny along with Honors testimony, demonstrates that the
stated reason for layoff is wholly insupportable Morse
testified that she had personally seen Honors run the big
foundry machines Snyder testified that she had been an
inspector and had examined items that Honors had
worked on and found his work to be excellent That
would tend to corroborate testimony by Honors that his
work had been praised by supervisory personnel only
weeks before his layoff
The testimony of Honors Morse, and Snyder, consid
ered together with the length of Honors employment
with the Company, and the fact that, as the testimony in
dicated, he seemed to be personally known to top man
agement, makes it impossible to believe that management
really thought his work was deficient and that he was
unable to work the machines that were being operated
for the work then in the plant I note, further, the ab
sence of any evidence that any inquiry was made to de
termine if he could work any particular machine, it was
obviously unnecessary to inquire because his qualifica
tions were well known
The element of timing in this situation is not clear
from the evidence I am not convinced that Slyman
seeing Honors in the plant was the precipitating event
there is no evidence of animosity on the part of Slyman
or of anything done about that time by Honors which
would have triggered a hostile action Honors position
as shop chairman was certainly well known, timing usu
ally becomes germane when union activity is newly dis
covered by an employer
On the whole record, however it is apparent that
something more is involved than merely ignoring seniori
ty Respondent seems to have gone out of its way to
ignore supersenionty Dapolito s remark cannot be ig
nored Finding as I do, that the reason advanced by Re
spondent is pretextual, I can only conclude that the
layoff, and the failure to recall, Honors, is a discnminato
ry act
I find no evidentiary support for the allegation that
Honors was laid off because of his testimony in proceed
ings against Respondent and therefore find no violation
of Section 8(a)(1) and (4) The violation of Section
8(a)(1) and (3) of the Act is clearly established
2 Discrimination against strikers
It is alleged, and denied, that early in September 1985
Respondent demoted Frank Hrynoi from supervisor to a
job in the unit while unreinstated strikers had still not
been returned to work that on 8 October 1985, Re
spondent recalled Tracy Crow a striker replacement
who had been on layoff since March 1985 to a position
in the unit at a time when unreinstated strikers had not
yet been recalled to work and that on 22 November
1985 two returned strikers John Sullivan and David
Howard were laid off though strike replacements with
less seniority were retained
These facts were conceded by Lee during the course
of his testimony What is in dispute is the further allega
tion of the complaint that in all of these instances Re
spondent acted with the objective of discouraging union
support and other concerted protected activities The
facts of preferential layoffs and recalls having been con
993
ceded, Respondents position is that nothing more was
involved than a permissible ignoring of prior seniority re
stnctions
I do not find that these instances involve merely a
question of Respondents having ignored seniority I find
that something more was involved, in the nature of overt
discrimination against strikers Ignoring seniority was in
these instances a discriminatory act by itself Giddings &
Lewis, 255 NLRB 742 745 (1981) Not treating Sullivan
and Howard as fully reinstated employees was discrimi
natory Transport Co of Texas, 177 NLRB 180 185
(1969) The return of a supervisor to a job in the unit
while former strikers with greater departmental seniority
remain unreinstated and the recall from layoff of a strike
replacement ahead of strikers are actions that clearly vio
late the well settled principle that replaced economic
strikers who have made an unconditional application for
reinstatement and have remained available for employ
ment are entitled to full reinstatement to fill positions left
by the departure of permanent replacements Laidlaw
Corp 171 NLRB 1366 (1968), affd 414 F 2d 99 (7th Cir
1969), Crossroads Chevrolet 233 NLRB 728, 730 (1977),
enfd 603 F 2d 223 (9th Cir 1979), Nolan Systems, 268
NLRB 1248 (1984)
Lee s justification on the basis that workers were being
laid off or recalled on the basis of their work perform
ance in insufficient in law, as an employers subjective
determination in that regard cannot deprive former strik
ers of their rights Lehigh Metal Fabricators 267 NLRB
568, 575 (1983)
It is extremely important however, that there be no
misunderstanding by reason of the charges with respect
to the actual obligations of Respondent to the strikers
The General Counsel has alleged, and I have found,
that the Respondent has committed discriminatory ac
tions in violation of Section 8(a)(1) and (3) of the Act by
deliberately ignoring the rights of the strikers to recall
That does not change the basic fact that Respondent has
committed an even more egregious violation of the Act
for which a remedy was already ordered in the decision
rendered on the remand of Case 31-CA-12472 The
strike was an unfair labor practice strike As noted in the
discussion of the background of this case I found that
Respondent had violated Section 8(a)(1) and (3) of the
Act by failing to recall striking employees and by threat
ening to replace them permanently That cannot be done
in a strike caused by the unfair labor practices of the em
ployer itself The Respondent in that case was expressly
ordered to recall all striking employees who have uncon
ditionally offered to return to work at the Fayetteville
plant Lest there be any misapprehension that the find
ings and orders somehow alter my previous findings and
recommended order I call attention to the fact that in
line with the earlier determination, I have reiterated the
direction for recall, as explained in the section on the
remedy
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organisation within the mean-
ing of Section 2(5) of the Act.
3. The Union is the exclusive collective-bargaining
representative of an appropriate collective-bargaining
unit consisting of:
All production and maintenance employees at the
Fayetteville, New York facility, excluding laborato-
ry employees, draftsmen, office and clerical employ-
ees, professional employees , guards , watchmen and
supervisors as defined in the Act.
4. Respondent violated Section 8(a)(1) and (5) of the
Act by:
(a) Failing and refusing to furnish to the Union, on re-
quest, the names and seniority dates of returned strikers.
(b) Unilaterally changing numerous terms and condi-
tions of employment contained in its expired collective-
bargaining agreement with the Union or sanctioned by
long-standing past practice , without a valid impasse
having been reached in its contract negotiations with the
Union and without affording the Union, as a result, an
opportunity to negotiate and bargain as the exclusive
representative of Respondent's employees with respect to
same , and without having made application to the Bank-
ruptcy Court having jurisdiction of Respondent's petition
for an arrangement under Chapter XI of the Bankruptcy
Act for permission to make such changes.
(c) Ignoring seniority and superseniority in making
layoffs and recalls.
5. Respondent violated Section 8(a)(1) and (3) of the
Act by:
(a) Laying off Gerald Honors on 1 April 1986 and
thereafter failing and refusing to reinstate him to his
former or substantially equivalent position.
(b) Transferring Frank Hrynoi, a supervisor, to unit
position ahead of strikers with greater seniority.
(c) recalling an employee originally hired as a strike
replacement and thereafter laid off to a position in the
unit while reinstated strikers had still not been recalled.
(d) Laying off returned strikers while strike replace-
ments with less seniority were retained.
(e) Ignoring seniority and superseniority in making lay-
offs and recalls.
6. Respondent has not committed any unfair labor
practices except as herein found..
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
I shall accordingly recommend that Respondent be di-
rected to furnish to the Union the names and seniority
dates of all strikers who have been reinstated; reinstate
the terms of the collective-bargaining agreement that ex-
pired on 15 June 1984, and continue the same in effect
until either the terms of a new agreement are reached or
an impasse is reached ; cancel all changes respecting
terms and conditions of employment that had prevailed
as a matter of accepted practice prior to the strike; and
take measures to rectify the violations of the Act by
reason of Respondent's having unlawfully replaced strik-
ers and by reason of Respondent's having ignored senior-
ity and superseniority provisions and having otherwise
violated the Act in laying off and recalling striking em-
ployees. I shall also recommend that Respondent be di-
rected to honor the reinstatement rights of unreinstated
strikers and proceed to recall strikers in a nondiscrimina-
tory manner, recalling them to their former positions or,
if those positions are not available, to substantially equiv-
alent positions, without prejudice to their seniority rights
or privileges, and make them whole for any loss of earn-
ings and other benefits which they may have suffered by
reason of their layoffs, with backpay to be computed in
the manner prescribed in F W. Woolworth Co., 90
NLRB 289 (1950), with interest to be computed in the
manner prescribed in Florida Steel Corp., 231 NLRB 651
(1977), and Isis Plumbing Co., 138 NLRB 716 (1962). As
the recommended Order will be applicable to all unre-
called strikers, no separate provision is strictly necessary
in the cases of Gerald Honors, John Sullivan, and David
Howard. However, as distinctive circumstances exist in
their respective cases and a determination on appeal may
conceivably result in a different provision for the unre-
called strikers in general, I will recommend specific pro-
visions for their reinstatement on the basis of the viola-
tions committed in their particular situations.
[Recommended Order omitted from publication.]