Airo Die Casting, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 20, 2006

06-CA-034853 (N.L.R.B. Dec. 20, 2006)

JD–86–06
Loyalhanna, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
AIRO DIE CASTING, INC.,
A SUBSIDIARY OF LEGGETT &
PLATT, INCORPORATED
and
JOHN A. KORNIDES, An Individual Case 6-CA-34853
and
ELIZABETH P. GRUSS, An Individual Case 6-CA-34854
and
FACTORY WORKERS LABORERS’ LOCAL Case 6-CA-34937
UNION 1357 a/w LABORERS’ INTERNATIONAL 6-CA-34961
UNION OF NORTH AMERICA, AFL-CIO 6-CA-34976
6-CA-35019
6-CA-35084
Gerald McKinney, Esq.
for the General Counsel.
Timothy G. Hewitt, Esq., and
David Cofer, Esq.
Latrobe, Pennsylvania,
for the Respondent.
George H. Love, Jr., Esq.
Youngstown, Pennsylvania,
for the Charging Party.
DECISION
Statement of the Case
PAUL BOGAS, Administrative Law Judge. This case was tried in Pittsburgh,
Pennsylvania, on August 7, 8, 9, and 10, 2006. The consolidated complaint is based on a
seven charges. John A. Kornides (Kornides) and Elizabeth P. Gruss (Gruss), individual
employees, each filed a charge on September 6, 2005, and amended those charges on
March 6, 2006. Factory Workers Laborers’ Local Union 1357 (Local 1357 or the Union) a/w
Laborers’ International Union of North America, AFL-CIO (the International Union), filed charges
on October 31, 2005, November 22, 2005, December 7, 2005, January 17, 2006, and March 6,
2006. Local 1357 filed amendments to its first charge on November 22, 2005, and March 6,
2006, to its second charge on March 6, 2006, and to its final charge on April 28, 2006. The
Director of Region Six of the National Labor Relations Board (the Board) issued a consolidated
complaint and notice of hearing on April 27, 2006, and an amended consolidated complaint and
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notice of hearing on June 7, 2006. The Regional Director filed a further amendment to the
consolidated complaint on July 21, 2006, and at the start of trial I granted the General Counsel’s
unopposed motion to further amend the complaint.1
The consolidated complaint, as amended (the complaint), alleges that in the aftermath of
a strike by its employees, Airo Die Casting, Inc., a Subsidiary of Leggett & Platt, Incorporated
(the Respondent or the Company), violated the National Labor Relations Act (the Act) by, inter
alia, falsely declaring impasse, making multiple unilateral changes to employees’ terms and
conditions of employment, delaying the provision of information requested by the Union,
threatening and otherwise coercing former strikers, discriminatorily refusing to reinstate two
former strikers for a period of approximately 7 months, and discriminatorily demoting another
former striker. The Respondent filed timely answers in which it denied that it had committed the
unfair labor practices alleged in the complaint. On the entire record, including my observation of
the demeanor of the witnesses, and after considering the briefs filed by the General Counsel
and the Respondent, I make the following Findings of Fact and Conclusions of Law.
Findings of Fact
I. Jurisdiction
The Respondent, a corporation with an office and place of business in Loyalhanna,
Pennsylvania (the facility), is engaged in the manufacture and non-retail sale of aluminum die
castings. In conducting those business operations, the Respondent annually sells and ships
goods valued in excess of $50,000, directly from the facility to points outside the
Commonwealth of Pennsylvania. The Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background Facts
The Respondent manufactures aluminum die castings at its facility in Pennsylvania. It is
one of 18 companies within the Leggett & Platt Aluminum Group, which, in turn, is a division of
Leggett & Platt, Incorporated. Daniel Krinock is the Respondent’s president and Mary Lukacs
is its human resources manager. 2 William "Ricky" Teague, is a vice president for human
resources with the Leggett & Platt Aluminum Group, and participated in the negotiations
involved in this case, at times as the Respondent’s chief negotiator.
In 1976, on the basis of an examination of union authorization cards, the Respondent
recognized the Construction and General Laborers’ Local Union No. 1451, AFL-CIO (Local
1451), which was affiliated with the Laborers’ District Council of Western Pennsylvania (the
District Council), as the exclusive representative for a bargaining unit consisting of production

1 The trial amendment, which concerned only paragraph 19(c) of the complaint, changed
that paragraph to read as follows: “From in and about late October 2005, until January 19, 2006,
Respondent delayed in furnishing the Union with the information requested by it as described
above in paragraph 19(a).”
2 Lukacs has responsibility over payroll and benefits matters. She also has the authority to
hire and discipline employees.
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and maintenance workers at the Respondent’s Pennsylvania facility.3 The Respondent and
Local 1451 entered into their initial bargaining agreement in July 1976, and subsequently
executed a number of successor agreements.4 The most recent collective bargaining
agreement states that it is effective from January 1, 2002, to January 31, 2005.5 In 2005,
between 250 and 300 employees were in the bargaining unit.
By mid January 2005, a number of bargaining unit members had become dissatisfied
with the representation being provided by Local 1451 and with the role of the District Council.
On January 15, the Local 1451 bargaining committee informed the Respondent that the
employees were forming a new local. The new entity – Local 1357 -- received a provisional
charter from the International Union on January 24, a fact that the Respondent was aware of
and confirmed with the International Union. On January 25, the International Union transferred
the members of Local 1451 to Local 1357.6 By May 19, 2005, Local 1357 provided the
Respondent’s Director of Human Resources with cards signed by 293 of the approximately 300
unit members, authorizing Local 1357 to act as their bargaining representative. Although the
Respondent’s answer denies that Local 1357 is the representative of the unit employees,7 the

3 At trial, the parties stipulated to the following definition of the bargaining unit and agreed
that the unit was appropriate for purposes of collective bargaining:
All production and maintenance employees, including truck drivers of the Company
employed at its Pennsylvania plant, but excluding all office clerical employees, guards,
watchmen and supervisors as defined in the Act.
4 The agreements were signed by officials of the Respondent and Local 1451, as well as by
officials of the District Council. The Council was not an actual party to the contracts. Its officials
signed as a formality because they had participated in the negotiations to provide assistance to
Local 1451. The Council does not represent employees, but rather assists affiliated locals to
organize, negotiate contracts, maintain jurisdiction, represent their membership, and enforce
contracts. Participating locals pay an affiliation fee to the District Council.
5 That contract also provides that the agreement will continue in full force from year to year
thereafter unless either party gives the other notice of a desire to change or terminate the
agreement at least 60 days prior to the termination of the agreement. No evidence was
presented specifically showing that the Respondent, Local 1451 or Local 1357 gave such
notice. However, there is no dispute in this case that the most recent agreement expired. The
complaint alleges that the agreement was effective from January 1, 2002, through January 31,
2005, General Counsel’s Exhibit (GC Exh.) 1(JJ), paragraph 14(a), and the Respondent does
not deny that in its answer, GC Exh. 1(LL). During opening statements, and in its brief, the
General Counsel stated that the most recent contract expired on January 31, 2005. Transcript
at Page(s) (Tr.) 11, 12, 19; General Counsel’s Brief at 9. Similarly, the Respondent’s Brief
makes reference to the most recent contract expiring on January 31, 2005. Respondent’s Brief
at 10. The Respondent’s president testified that the contract expired on January 31, 2005, and
a negotiator for the Respondent’s parent corporation also testified that the most recent contract
had expired. Tr. 62, 844. In their testimonies, a union business agent and the Union’s attorney
both referred to the most recent contract as “expired.” Tr. 141, 223, 436. Given this record,
despite the lack of specific evidence that any party gave notice of its desire to terminate the
contract, I conclude that the expiration of the collective bargaining agreement on January 31,
2005, is not in dispute.
6 Local 1451 continued to exist, but not as a representative of the bargaining unit at-issue
here.
7 In its answer to the complaint the Respondent denied both that Local 1357 was a labor
organization and that it was the bargaining representative of the unit employees. During the
course of the trial, the Respondent changed its position regarding the status of Local 1357, and
Continued
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record shows that during negotiations the Respondent did, in fact, agree to recognize Local
1357 as the representative of the unit employees based on the authorization cards. In a July 11
letter, the Respondent’s attorney and chief negotiator stated that "[d]uring the process of
bargaining, based upon membership cards provided, the Employer has agreed to replace Local
Union No. 1451 with Local Union No. 1357." General Counsel’s Exhibit (GC Exh.) 42, at page
2.8 The Respondent also took other concrete actions by which it implicitly recognized Local
1357 as the representative of unit employees for purposes of collective bargaining. For
example, the Respondent’s officials met repeatedly to negotiate with the Local 1357 bargaining
committee. The Respondent submitted a contract proposal that identified Local 1357 as the
representative of the employees, GC Exh. 32, and processed grievances that it knew were
submitted by Local 1357, GC Exh. 17, 20, 20a. The Respondent addressed July 15, 2005,
correspondence about alleged picket line misconduct not to Local 1451, but to the business
manager of “Local 1357.” GC Exh. 23. There is no evidence that after the Respondent began
bargaining with the Local 1357 committee in May 2005, its agents ever again sought to
negotiate with Local 1451. Indeed, despite the efforts of counsel for the Respondent to muddy
this issue, even the Respondent’s president testified that his understanding was that Local 1357
had represented the unit employees since early 2005. Transcript at Page (Tr.) 61-62. The
evidence clearly shows that the Respondent recognized Local 1357 as the bargaining
representative of unit employees no later than July 11, 2005, and probably earlier than that.9
_________________________
stipulated that it was, in fact, a labor organization for purposes of the Act, Tr. 212, but continued
to deny that Local 1357 was the collective bargaining representative of unit employees. In its
posthearing brief, the Respondent did not raise that denial as a legal defense to any of the
alleged violations.
8 This letter was addressed to a federal mediator, with copies provided to the Local 1357
bargaining committee.
9 To support its denial that Local 1357 was the recognized representative of the unit
employees, the Respondent offered the testimony of Teague, who served as the Respondent’s
chief negotiator from December 2004 until June 12, 2005, and continued to participate in
negotiations as a member of the Respondent’s bargaining committee thereafter. At trial,
Teague testified that the Respondent never accepted Local 1357 as the replacement for Local
1451, that he “knew nothing of Local 1357,” and believed he had been bargaining with Local
1451 at all times. Tr. 884-85. Given the facts presented, I am flabbergasted by Teague’s
willingness to make such statements under oath. In addition to the evidence discussed above, I
note that it was Teague himself who directed the July 15, 2005, letter about alleged picket line
misconduct to Local 1357. Moreover, Teague admitted that he never raised any concerns
about the status of Local 1357 with George Love – the attorney and chief negotiator for Local
1357. Teague personally met to negotiate on multiple occasions with the Local 1357 bargaining
committee, which had a different composition than the Local 1451 bargaining committee. On
the stand, Teague complained that the International Union never provided him with
documentation of Local 1357’s legal status, but when pressed he conceded that he did not feel
he needed such documentation because Dave Weber -- an official of the International Union
who had also been on the Local 1451 bargaining committee – had provided him with
satisfactory verbal confirmation of Local 1357’s legal status. Tr. 881-82, 884. Given the
relevant facts, I reject Teague’s testimony that the Respondent did not recognize Local 1357 as
the representative of bargaining unit employees. Indeed, Teague’s testimony on that subject,
including his statement that he “knew nothing of Local 1357,” was so incredible in light of the
record evidence that it casts a cloud over his testimony as a whole. On the basis of Teague’s
testimony and after considering his demeanor and the record as a whole I conclude that Teague
was not a credible witness in this proceeding, and I give his testimony regarding disputed
matters very little, if any, weight.
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See Terracon, Inc., 339 NLRB 221, 223 (2003) (union may become recognized bargaining
representative of unit when the union proves majority status and either the employer agrees to
recognize the union upon such proof, or the Respondent implicitly recognizes the union by
statements or actions that evidence a commitment to negotiate with the union), affd. sub nom.
International Union of Operating Engineers, Local 150 v. NLRB, 361 F.3d 395 (7th Cir. 2004).
While Local 1357 was initiating its operations, it had some limited connection to the District
Council. The record shows that the District Council supplied Local 1357 with $5000 in start-up
funds, and provided an attorney, Dominic Bellisario, to assist Local 1357 in negotiations for a
brief period. Bellisario was the same attorney who the District Counsel had provided to assist
Local 1451 during the 2004-2005 contract negotiations preceding the creation of Local 1357.
On December 31, 2005, Local 1357 and the District Council severed any remaining ties.
B. Negotiations Prior to Creation of Local 1357
The Respondent and Local 1451 began negotiating for a new contract in December
2004. The Respondent’s bargaining team consisted of Teague, who served as chief negotiator,
and Lukacs. Krinock attended the initial bargaining session, but only came to one or two other
sessions during 2005. The Local 1451 bargaining team consisted of attorney Bellisario, Thad
Rager, Robert Hillman, David Simpson, Cindy Upholster, and Dave Weber (a representative of
the International Union). Bellisario served as primary spokesperson for Local 1451.
On December 8, 2004, Local 1451 gave the Respondent its initial proposal, and on
December 15, the Respondent provided an answer to that proposal. By the end of January
2005, the parties had met 15 times and reached tentative agreements on 21 items. The most
important issues dividing the parties at that time concerned the health insurance benefit. Under
the last contract, health insurance was provided through a plan that the District Council made
available to affiliated locals. The Respondent paid 100 percent of the premiums for participating
unit employees. The Respondent stated that it was concerned about the cost of the District
Council plan and made a presentation on the possibility of substituting a health insurance plan
offered by the Respondent’s parent company -- Leggett & Platt, Inc.
Other significant issues on which the parties had not reached agreement by the
contract’s January 31, 2005, expiration date included wages, the defined benefit pension plan,
and management rights. Regarding pension, the Union proposed that the Respondent’s
contribution for each employee, which was $1.62 per hour, be increased by 10 cents per hour
during each year of a 3-year contract. The Respondent did not agree to those increases and
also proposed switching pension plans. The pension fund that the parties have been using
since at least 1982 is a labor-management trust fund that is administered jointly by labor and
management trustees. Over 800 employers participate in this joint pension fund, which is
known as the Laborers’ International Union of North America (LIUNA) national pension fund.
The Respondent proposed switching out of the joint labor-management pension fund and into
Leggett & Platt’s own pension fund. The Respondent stated that it was concerned about the
LIUNA plan’s viability because of the recent failures of other defined benefit pension plans. For
its part, the Local 1451 committee stated that it was uncomfortable with the prospect of
committing employees’ pension funds to a plan controlled by the employer. The Respondent
was also seeking an expanded "management rights" provision in the contract, which would give
it more flexibility regarding the scheduling of shifts and which, specifically, would make it easier
for the Respondent to operate continuous shifts – i.e., shifts 24 hours a day, 7 days a week.
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On January 15, during the second month of negotiations, the Local 1451 committee
informed the Respondent that employees were forming a new local – later chartered as Local
1357-- and that it would be impossible to reach an agreement before the current contract
expired on January 31 because any proposal would have to be considered by the new local.
C. Negotiations Between Respondent and Local 1357
Negotiations for a new contract were suspended for a time while Local 1357 held
elections for officers, obtained authorization cards from the unit members, and generally got up
and running.10 While Local 1357 was initiating its operations, the Respondent presented what it
called the “Company’s last best and final offer made on January 31, 2005” to Local 1451. That
offer included the 21 tentative agreements previously reached plus a number of other proposals.
The other proposals included a 5-year contract term, with wage increases of 3 percent for each
of 3 years and 3.5 percent for the remaining 2 years. Regarding the pension benefit, the
Respondent agreed to continue participating in the LIUNA joint labor-management pension
fund, but proposed lesser increases in contributions -- 5 cents per hour during 3 years of the
contract’s 5-year term, with no increases during the remaining 2 years. Regarding what had
been the most contentious issue – health insurance – the Respondent proposed switching from
the District Council’s health and welfare plan, under which the Respondent paid 100 percent of
premiums, to the Leggett & Platt plan, under which the employees would contribute weekly
premiums of $5 per individual and $12 per covered family.
Bargaining sessions between the Respondent and Local 1357 began in early May 2005.
On May 19, 2005, the union membership voted to reject the Respondent’s "last best and final
offer" of January 31 and to initiate a strike on June 12, 2005, unless the parties reached an
agreement prior to that time. At a bargaining session on June 1, Teague made a presentation
regarding new contract terms, which he said did not constitute a formal proposal, but rather a
"sub-posal." He said he would present the sub-posal as a formal proposal if the union
committee agreed to recommend the terms to the membership. The Union stated that it would
not recommend the sub-posal terms, but would submit those terms to the membership for a
vote if Teague presented them as a formal proposal. Teague declined to make the sub-posal a
formal proposal under those circumstances.
On the evening of June 12, the bargaining unit began its strike. During the strike, both
sides selected new chief negotiators, but continued to bargain. Attorney Timothy Hewitt took
over for Teague as the Respondent’s chief negotiator.11 Teague continued to participate in the
negotiations and attended some, but not all, of the subsequent bargaining sessions. In early
July, Bellisario ceased to represent Local 1357 and later that month Local 1357 retained George
Love to serve as their attorney and chief negotiator.12 Members of Local 1357’s executive

10 Local 1357 nominated officers in February 2005, elected its officers on March 16, 2005,
installed its officers in April 2005, and received a regular/non-provisional charter on April 15,
2005.
11 Hewitt, who did not testify, was one of the Respondent’s two trial attorneys in this
proceeding.
12 The record shows that while Love was a long-time attorney, he had no prior experience in
labor law matters and had never previously negotiated a labor contract. The record did not
reveal the specific experience of the Respondent’s counsel, Hewitt, but Hewitt’s
correspondence came on letterhead from “Industrial Relations, Inc.,” indicating that he held
himself out as a specialist in such matters.
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committee, including Kenneth Cogan (president) and Simpson (business manager) also
participated in the bargaining sessions.13 The parties began to use a federal mediator to assist
in the negotiations.
The first bargaining session with Hewitt and Love both serving as chief negotiators took
place on August 4. A few days earlier, on or about July 28, the Respondent had provided the
Union with a new comprehensive contract proposal. In important respects the Respondent’s
new proposal offered employees substantially less than the "Last Best and Final Offer" that the
Respondent had made 6 months earlier on January 31. Previously the Respondent had offered
annual wage increases of 3 percent for the first 3 years of a 5-year contract, and 3.5 percent for
the final 2 years. The new proposal offered 3 percent increases for each of the 5 years – thus
reducing the wage increases for the final 2 years. Regarding the pension benefit, the
Respondent’s January 31 proposal accepted continued use of the LIUNA joint labor-
management pension plan, and included five-cent increases in the Respondent’s pension
contribution rate during 3 years of a 5-year contract. In its new proposal, the Respondent was
still accepting continued use of the LIUNA plan, but eliminated all increases to the contribution
rate during the 5-year duration of the agreement. The Respondent’s earlier proposal on health
insurance called for employees to contribute $5 weekly for each covered family member, but
only up to a maximum of $12 weekly per family. The new proposal included no such cap,
meaning that an employee could pay more than $12 weekly for family coverage depending on
the number of covered family members.
The Respondent also proposed to delete language that was in the expired contract, and
had been in contracts since 1976, which prohibited the Respondent from subcontracting
bargaining unit work while there were any unit employees on layoff. In addition, the Respondent
sought to add new language to the management rights clause stating that the Respondent had
authority to "determine job content, to create or change jobs and assign jobs to particular
classifications; to consolidate or combine job duties," "to schedule the number of straight or
overtime hours to be worked," "to add to or reduce the number of shifts," and "to reasonably
establish, modify, or change work schedules."14

13 Cindy Upholster, Thad Rager, and Dave Weber, who had been on the Local 1451
bargaining committee were not among those elected as officers of Local 1357 in March 2005.
Later, Thad Rager replaced Mike Aukerman as a member of the Local 1357 executive board.
14 The management rights provision in the most recent contract (GC Exh. 2, Article II),
without the changes proposed by the Respondent, provides as follows:
2.1 Except as expressly limited by the other sections of this agreement, the
Management of the plant and the direction of the work force are vested exclusively in the
Company and the Company shall continue to have all rights customarily reserved to
Management, including the right to hire, promote, demote, suspend, transfer, discipline,
maintain efficiency, discharge for just cause, the right to layoff or recall employees because
of lack of work or other legitimate reasons; the right to schedule hours, job assignments and
staffing levels; and the right to establish and enforce plan rules and regulations; provided
that in the exercise of such rights and functions contained in this Article, Union members
shall not be discriminated against as such. In addition, the products to be manufactured,
services to be rendered, the location and extent of plant facilities and operations, the
schedules of production, the materials and equipment to be used, the decision to make or
buy, contract, sub-contract, relocate any work or equipment, the methods, processes and
means of manufacturing, the quality of material and workmanship required, as well as the
selling prices, methods of selling and distribution of products, are solely and exclusively the
responsibility of the Company.
Continued
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On August 8, Local 1357 replied to the Respondent’s July 28 proposal. Local 1357
stated that it accepted the tentative agreements that the Respondent had previously reached
with Local 1451 on 21 items. Local 1357 indicated that it would agree to a contract duration of 5
years, rather than the 3 years preferred by the Union, if the Respondent provided wage
increases of 3.5 percent for each year of the contract, instead of 3 percent. Regarding
increases to the Respondent’s pension contributions, the Union proposed essentially what the
Respondent had offered in its January 31, proposal – i.e., increases of 5 cents per hour during 3
of the 5 contract years. This represented a significant move by Local 1357 from the previous
union proposal of 10-cent increases for each year of the contract. In its August 8 offer, the
Union also proposed setting employees’ weekly contributions to health insurance premiums at
$5 per week, regardless of the number of covered family members. This represented a
concession by the Union since, as discussed above, the employees had not previously been
required to contribute anything towards their health insurance premiums.
About 10 days later, on August 18 or 19, the Respondent cut its pension proposal
further. In the proposal that Hewitt provided to Love at that time, the Respondent proposed not
only to eliminate all increases to the $1.62 hourly contribution rate during the duration of the
contract, but to reduce its contributions by over 50 percent to 80 cents per hour effective
January 1, 2006. This reduction would lessen the pension benefits that employees received for
years of service worked under the reduced contribution level, but would not affect the pension
benefits they received for years of service prior to implementation of the proposed reduction.
Under this proposal, the Respondent did not offer to take any portion of the 82 cents per
employee/per hour that it was cutting from the Company’s pension contributions and use it for
the benefit of employees. In other words, the Respondent was apparently proposing to retain
that money for its own purposes. The Respondent’s proposal also gave management the
option of discontinuing participation in the LIUNA joint labor-management pension fund and
instead offering employees the chance to participate in a Leggett & Platt pension plan.
Hewitt, in an August 19 letter to Love, stated that the Respondent wanted the option of
switching pension plans because the LIUNA joint labor-management fund was "financially risky"
and "financially troubled." Earlier, at a meeting in late June or early July, the Respondent had
told the Respondent that the LIUNA plan was underfunded by $700,000. The Respondent did
not show that it had any basis for these characterizations of the LIUNA plan’s financial status
and, based on the record evidence, the characterizations were inaccurate. The LIUNA fund’s
attorney, James Ray, credibly testified that the plan was not underfunded and more than
exceeded the funding requirements under the Employee Retirement Income Security Act of
1974 (ERISA), 29 U.S.C. Section 1001 et seq.15
_________________________
2.2 The Company shall also have the right to direct the work force with particular
emphasis on its right to maintain flexibility in the assignment of employees and this right is
recognized by the Union in view of the new technology and overall operation involved in the
plant.
2.3 In advance of the establishment of any work rules, the Company shall consult with
the Union.
15 Ray testified confidently, clearly, and with apparent candor. He has been counsel to the
LIUNA fund for nearly 3 decades and was shown to have extensive experience regarding the
laws and regulations relating to pension funds, including two terms serving on the U.S.
Secretary of Labor’s ERISA advisory council, most recently in 2002 by appointment of Secretary
Elaine Chao. No meaningful contradictions in his testimony were shown. Based on Ray’s
testimony, and after considering his demeanor and the record as a whole, I consider him to be a
Continued
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Although the Respondent was seeking authority to withdraw from the LIUNA fund, Hewitt
wrote, in his August 19 letter, that the Company might "decide not to exercise the option of
withdrawing from the [LIUNA] pension plan depending upon withdrawal liability" – i.e.,
depending on the size of the penalty the Respondent would have to pay if it withdrew from the
fund.16 Hewitt said that “the current contribution level of $1.62/hour would continue” in the
event that the withdrawal liability figure led the Respondent not to withdraw from the LIUNA
plan. GC Exh. 29. He stated that the LIUNA fund would not make the withdrawal liability figure
for a 2005 withdrawal available until mid-September 2005. Despite Hewitt’s representation that
the Respondent’s decisions about whether it wanted to withdraw from the LIUNA plan and
whether it would seek to reduce pension contributions were based on a withdrawal liability
calculation that would not be available for another month, Hewitt’s August 19 letter included the
following statement regarding impasse: "If the Union does not vote to ratify the agreement and
we continue to be at impasse and the Union abandons its strike, we are still prepared to return
employees to work in an orderly fashion with the understanding that we will continue to
negotiate in good faith and that we may exercise our right to implement our proposals at
impasse." Hewitt also stated that while he hoped the employees would ratify the agreement, "we
reserve our right pursuant to law to implement any or all of the terms of the Employer’s last
proposal, if they do not."
The employees ended their strike on August 29, and the parties met for their first post-
strike negotiating session on September 12. Witnesses for both sides agree that the pension
issues were the most serious ones dividing the parties during the period after the strike. At the
September 12 meeting, the Respondent did not change its position regarding the issues and
Hewitt expressed the view that the union membership might approve the Respondent’s proposal
if they had better information about it. On September 20, Hewitt provided Love with a complete
revised contract proposal. In this version, the Respondent altered its July 28 comprehensive
proposal by incorporating the Respondent’s more recent pension proposal of cutting its
contributions to 80 cents per hour and permitting the Company the option of withdrawing from
the LIUNA joint labor-management pension plan. The September 20 proposal, also reinserted
the $12 per week cap on employee health insurance premium contributions for family coverage
that it had previously offered, but dropped from its July 28 proposal.
On September 7, 2005, the Respondent received some preliminary information on the
withdrawal liability figure that the parties had been awaiting. The information came in the form
of a letter from the LIUNA fund administrator, Mark Speakes, who told Hewitt that while the fund
could not yet provide a figure for a 2005 withdrawal, it could state that if the Respondent had left
the plan in 2004, the withdrawal liability figure would have been $2,131,890. Speakes stated
that a figure for a 2005 withdrawal could not be provided until later in the year since it would be
_________________________
very reliable witness.
16 According to Ray’s credible, and uncontradicted, testimony, “withdrawal liability,” was
created under federal law in 1980 to encourage employers to stay in pension funds by requiring
employers that withdraw from a fund to pay a portion of the unfunded vested liabilities that exist
in the fund as a whole. The portion of those liabilities that an employer must pay upon
withdrawing from the LIUNA fund is based on the ratio of that employer’s contributions over the
5-year period culminating at the end of the prior calendar year, relative to the pool of the other
approximately 800 contributing employers. An employer does not have to pay withdrawal
liability unless it withdraws from the fund, or reduces its contributions to such a low level that it is
considered to have partially withdrawn. Ray testified credibly that the fact that the LIUNA plan
had unfunded vested liabilities did not mean that it was underfunded.
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based on the January 1, 2005 actuarial valuation, which was not yet available. In a subsequent
conversation, Speakes informed Hewitt that the figure for a 2005 withdrawal would not be
available until after December 1. The $2,131,890 figure was significantly greater than what the
Respondent expected to incur for leaving the plan. On September 20, 2005, Hewitt informed
Love that, while the Respondent was still proposing that the company have the option of
withdrawing from the LIUNA pension fund, the "substantial withdrawal liability" was a factor that
would "certainly provide greater economic incentive for the Employer to remain in the plan." GC
Exh. 31.
On September 29, the Union’s executive committee put the Respondent’s September 20
proposal to a vote by the membership, but the membership rejected that proposal by a vote of
195 to 3. When the parties next met for a bargaining session, on November 15, they still did not
have the figure on 2005 withdrawal liability. As a result, the parties mentioned, but did not
discuss, the pension issues that were dependant on that information. However, Hewitt did take
a moment to speculate pessimistically about the financial status of the LIUNA fund, stating that
staying in that plan, rather than switching to the employer’s plan, "might be throwing money into
a hole." Love credibly testified that his ability to make proposals on the pension issues was
hampered by the continued unavailability of the 2005 withdrawal liability information that both
parties understood might affect their positions on those issues. The discussions during this
session focused on the health insurance issue, although the parties also discussed
management rights, and in particular Respondent’s desire to switch to 12-hour shifts that would
run continuously, 7-days a week.
The next day, November 16, the Union provided the Respondent with a new contract
proposal. In this proposal, the Union made some movement towards the Respondent’s
proposals. The Union offered to agree to the Respondent’s proposal to move out of the LIUNA
joint labor-management plan and into a different pension fund. The proposal suggested that
such a move would be acceptable to the Union if the Respondent permitted "all employees who
are not vested . . . [to] become vested before monies are moved." The Union continued to seek
increases in the Respondent’s pension contribution levels during the contract term. The Union
also stated that it would agree to the Respondent’s proposal to limit pay increases to 3 percent
per year, as long as the contract duration was 3 years, rather than the 5 years sought by the
Respondent. The Union also presented another health insurance plan for the Respondent’s
consideration.
In a letter dated November 23, 2005, Hewitt expressed extreme disappointment with the
Union’s November 16 proposal, which he asserted "appears to be designed to prevent the
parties from reaching an agreement." Nevertheless, the Respondent tentatively agreed to a
union proposal on contract language regarding documentation of wage increases. He also
recognized that his understanding was that the Union committee was considering acceptance of
the Respondent’s health insurance proposal – which had been the main point of contention
between the parties before Hewitt took over as the Respondent’s chief negotiator.17 In
response to the Union’s new proposal regarding pension benefits, the Respondent stated:

17 The Respondent’s proposal was to use a Leggett & Platt health plan, rather than the
District Council health plan that was provided for by the prior contract. The record indicates that
the District Council only made its health coverage available to affiliated employees, and that
bargaining unit employees would not have been able to continue in that health plan once Local
1357 disaffiliated from the District Council. The record shows that disaffiliation occurred no later
than December 31, 2005.
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As advised, the withdrawal liability information for current withdrawals should be
available after December 1, 2005. Once that information is provided, the Employer will
reconsider its proposal. At this time, the Employer has no change to its pension
proposal.
* * *
If we receive any additional information from the Pension Administrator that changes our
position, I will let you know if we need a meeting.
In other respects, Hewitt stated that the Respondent was not modifying its proposals.
The parties’ next negotiating session was held on December 13. This was
approximately the eighth session between the Respondent and Local 1357. In the days before
that meeting, Hewitt called Love and stated that the Respondent would consider taking a portion
of the 82 cents per hour it wanted to cut from pension contributions and returning that portion to
employees in the form of increased wages. More specifically, Hewitt suggested that the Union
propose returning 50 cents of the pension cut in this fashion. The other 32 cents that the
Respondent was cutting from its hourly pension contributions would apparently not be returned
to employees. Prior to the December 13 negotiating session, Love told Hewitt that the Union’s
executive committee was considering the type of arrangement Hewitt had suggested, and that
the parties could discuss it further at the December 13 meeting.
When the parties met on December 13, they still did not have the withdrawal liability
information that Hewitt had previously indicated might lead the Respondent to reconsider its
proposals for a reduction in pension contributions and withdrawal from the LIUNA pension plan.
Nevertheless, the Union suggested that it would be willing to accept the Respondent’s proposal
to reduce the Company’s pension contributions by 82 cents per hour, provided that 55 cents of
the reduction was returned to employees in the form of a wage increase. As stated above,
Hewitt had previously approached the Respondent about such an arrangement, although he
had suggested returning 50 cents, rather than 55 cents, to the employees. The Union’s new
position on this subject represented a very significant change from the one in its most recent,
November 16, formal proposal, which provided for increases in the Respondent’s contributions.
Discussion of the pension issues was, however, hampered at the December 13 meeting by the
unavailability of the withdrawal liability calculation. At any rate, the Respondent did not agree to
take any portion of the money that was being cut from pension contributions and return it to
employees in the form of wages or other benefits.
At the December 13 meeting the parties also discussed health care. The Union
reiterated its willingness to agree to the Respondent’s proposal to cover the unit employees
through a Leggett & Platt plan, although there appear to have been issues remaining regarding
employee contributions and the possibility of reciprocal concessions on other issues. The
Union also took a new position regarding wages that represented a move towards the
Respondent’s proposal. The Union stated that it would be willing to agree to the 5-year contract
duration sought by the Respondent, with wage increases of 3 percent during each of the
contract’s first 3 years, and increases of 3.5 percent for the last two years of the contract. This
was, in fact, what the Respondent itself had previously offered on January 31 in its “last, best
and final” offer, however, the Respondent had since reduced its proposal to provide the lower
increases of 3 percent during each year of a 5-year contract. The Union also proposed to
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surrender entitlement to "gain sharing" under the prior contract in exchange for the guaranteed
wage increases. If the Respondent’s team had agreed to these terms, the Union was prepared
to present them as a formal written proposal.18
Despite the movement that the Union made, and despite the fact that the 2005
withdrawal liability calculation that the parties had been awaiting was still unavailable, Hewitt
announced at the December 13 session that the parties had reached impasse regarding the
pension issue. Hewitt stated that the Respondent would have no choice but to implement
the 82-cent reduction in hourly, per-employee, pension contributions effective January 1, 2006,
in order to avoid increased withdrawal liability for 2006. He told the Union that the Respondent
had "no choice" because of the "looming January 1 deadline." In a subsequent letter, Hewitt
again stressed this supposed deadline, stating that the "reduction in the rate of contribution from
$1.62 to $.80 . . . . must be implemented prior to any participating employee working even one
(1) hour in 2006 or the Company will be responsible for another year of withdrawal liability
based upon the $1.62 contribution rate." GC Ex. 35. As is discussed fully below, this
representation by the Respondent was untrue and January 1 was a false deadline. At any rate,
Love responded to Hewitt’s assertions by stating that the parties were not at impasse.
According to Love, the parties were not deadlocked on the pension issue because they were
considering alternatives to address the Respondent’s desire to withdraw from the LIUNA joint
labor-management pension fund while permitting the unit employees who were not yet vested to
become vested, and were trying to reach an agreement about what would happen to the money
that the Respondent proposed to cut from pension contributions. The parties were also
exploring other types of retirement benefits, including 401(k) plans.
Soon after the December 13 meeting, the Respondent received the 2005 withdrawal
liability calculation from the LIUNA fund administrator, and Hewitt forwarded that information to
Love prior to December 20. That information showed that the Respondent’s liability if it chose to
withdraw from the LIUNA plan in 2005 would be $2,600,876. This figure was an increase from
the $2,131,890 calculation for a 2004 withdrawal.
Hewitt, in a December 20, 2005, letter to Love, discussed a number of subjects,
including health insurance, the increased withdrawal liability calculation, impasse, and the
Respondent’s plan to implement its proposal to reduce pension contributions. Regarding health
insurance, Hewitt recognized that progress had recently been made, stating that "the health
insurance proposal did not seem to be an issue and there did not seem to be any objection with
respect to the Employer’s insurance proposal." On the subject of the higher withdrawal liability
figure, although Hewitt had previously stated that a large withdrawal liability figure would make it
less likely that the Respondent would want to withdraw from the LIUNA fund, Hewitt now took a

18 Lukacs, Love, and Cogan testified about the December 13 meeting. This account is
based primarily on the credible testimony of Cogan. Although I have no doubt that Cogan has
an interest in the outcome of this matter, he gave the fullest, most detailed, account of what was
said. Moreover, his testimony was consistent with his contemporaneous notes of the meeting
and with Love’s testimony. Cogan’s testimony about the meeting was contradicted in some
respects by the testimony of Lukacs. Lukacs’ testimony on those subjects, however, was
vaguer and less complete than Cogan’s, and in most instances was based on her general
impressions regarding the state of negotiations over a period of time, not on a specific memory
of what was said at the meeting on December 13. For these reasons, I found Cogan a more
credible than Lukacs regarding the December 13 meeting. Hewitt, the Respondent’s lead
negotiator on December 13, did not testify and Teague did not attend the December 13
meeting.
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different tact -- stating that the high withdrawal figure supported the Respondent’s refusal to
"continue to be at risk for this growing liability" by "continuing to participate in the fund."19
In the December 20 letter, Hewitt asserted again that "the Union and the Company are
at impasse on the pension issue." He made this statement even though the parties had not met
to negotiate since receipt of the 2005 withdrawal liability calculation they had long been awaiting
and which Hewitt had repeatedly said might lead the Respondent to reconsider its pension
proposals. Moreover, Hewitt made no response to either the Union’s November 16 proposal to
withdraw from the LIUNA plan once unvested employees were permitted to vest, or the Union’s
favorable response to Hewitt’s own overture about the parties sharing the money that the
Respondent wanted to cut from pension contributions. As noted above, those two possible
courses for progress on the pension issue had not been discussed at a bargaining session
since the parties received the 2005 withdrawal liability calculation, and the parties’ December 13
discussions regarding pension issues had been hampered by the unavailability of that
calculation.
Hewitt also warned the Union that it was the Respondent’s "intention to implement the
pension proposal . . . and to notify the Pension Plan Administrator of the reduction in the rate of
contribution from $1.62 to $.80 commencing January 1, 2006." He characterized the parties as
"hopelessly deadlocked" on the pension issue, but stated that "the Company remain[ed]
prepared to return to the bargaining table," if the Union changed its position.
In a December 21 response to Hewitt’s letter, Love stated that the Union "did not agree
that an impasse has been reached," and believed that the Respondent’s declaration of impasse
was driven by its determination to cut pension contributions prior to the New Year. Love said
that the Respondent’s proposal to reduce pension contributions had been made late in the
negotiations and never really negotiated. Love also reiterated the terms of the Union’s
November 16 proposal, including that the Union would agree to withdrawal from the LIUNA
pension plan if employees not yet vested in that plan were permitted to vest. Love stated that
although the "Holiday Season" was approaching, the Union remained "willing to explore
solutions to our differences at any time." He said that the Union and the Respondent would only
be “hopelessly deadlocked if the Employer refuses to bargain in good faith."
The parties did not meet again prior to arrival of the January 1, 2006, "deadline"
described by the Respondent. The Respondent proceeded to implement its proposal to reduce
hourly pension contributions from $1.62 to 80 cents per employee effective January 1, 2006.
Hewitt, in a December 20, 2005, letter, informed the LIUNA fund administrator that the
Respondent would be cutting its contribution level as of the first hour in calendar year 2006.
The Respondent tendered its first actual payment for the period being calculated at the lower
rate on February 16, 2006.20 By letter dated January 9, 2006, Hewitt informed Love that the

19 In the letter, Hewitt also argued, at some length, that the Respondent had contributed
more to the plan than the vested benefits of its employees and “[i]n short, was being held
responsible for shortages of the plan when our account is fully funded.” In his sworn testimony,
Ray, the fund’s attorney, stated that the Respondent had not, in fact, contributed more to the
LIUNA fund than the Respondent had in liabilities. Ray testified that, as of 2005, the present
value of the vested benefits of the Respondent’s employees was $5.3 million, whereas the
Respondent’s contributions over the entire history of its participation amounted to approximately
$1.2 million. Regarding this issue, I credit Ray’s sworn testimony over the unsworn
representations made by Hewitt in the December 20 letter to Love.
20 According to Ray, the LIUNA fund has declined to accept the Respondent’s reduced
Continued
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Respondent was, in fact, now calculating pension contributions at the hourly rate of 80 cents,
rather than $1.62, per employee. Hewitt also opined that “It is clear that the parties are at
impasse," and warned that the Respondent "must implement the balance of our bargaining
proposal in the very near future." Two days later, in a letter dated January 11, Love responded
that the parties "should go back to the bargaining table as soon as possible" and that he would
contact the federal mediator to set up dates.
The Respondent’s brief, which was signed by Hewitt, states that during a telephone
conversation between Hewitt and Love on December 19, Love "confirmed that impasse existed"
and that the "union was not going to make any further offers." Respondent’s Brief at 18 and 19.
Although Hewitt presents this bombshell in the Respondent’s brief as fact, not a shred of sworn
evidence was cited to support it. Instead, Hewitt relies entirely on his own December 20 letter to
Love purporting to summarize their December 19 telephone exchange. GC Exh. 35. This is
true despite the fact that Hewitt himself was present throughout the proceedings as one of the
Respondent’s trial attorneys and could have testified under oath about Love’s supposed
admission. At any rate, Love did testify under oath, and denied Hewitt’s claim that he had
confirmed that impasse existed or stated that the Union would make no further proposals. Tr.
510. Moreover, in a December 21 response to Hewitt’s letter, Love disputed Hewitt’s
characterization of the December 19 conversation. GC Exh. 36. Given this record, I reject the
Respondent’s unsupported assertions about what transpired during the December 19 telephone
conversation. The efforts of the Respondent’s counsel to present his own unsworn contentions
regarding the course of negotiations as if they were admissions by the Union’s attorney are, to
put it as kindly as possible, unhelpful.
The record also shows that the looming January 1, 2006, "deadline" to which Hewitt
repeatedly referred and which he used to justify his assertion that the parties were at impasse
was a false deadline. The evidence is clear that the Respondent’s contributions on or after
January 1, 2006, would have no effect whatsoever on Hewitt’s stated concern – i.e., liability for
withdrawal from the LIUNA fund in 2006 -- since the 2006 withdrawal liability figure was fixed
based on the Respondent’s contributions as of the end of 2005. See supra footnote 16
(withdrawal liability calculation for a given year based on contributions through the end of the
prior calendar year). Contributions made in 2006 would not even be considered in the
calculation. Moreover, Ray testified, credibly and without contradiction, that to the extent a
reduction in the Respondent’s contributions for 2006 might have an effect on the Respondent’s
liability for a withdrawal in 2007 (as opposed to 2006), such effect would be "infinitesimal."21
Finally, January 1, 2006, was not a deadline for reducing the contributions since those
contributions could be reduced at any time during the year and the withdrawal liability for 2007,
to whatever minimal extent it would be effected by such a change, would depend on the total
contributions actually made through the end of 2006, not on the contribution level used on
January 1, 2006, or any other particular date. In other words, the Respondent’s claim that it
would be "locked-in" to the level paid on January 1, 2006, for the rest of the year was simply
false. Indeed, there was no credible evidence that the Respondent even had a reasonable
basis for any of its representations to the Union committee about the necessity of reducing
_________________________
pension contributions.
21 For reasons discussed earlier, I found Ray a very credible witness. Moreover, his
assessment that the contribution reduction proposed by the Respondent would have a
negligible impact on the Respondent’s 2007 withdrawal liability calculation was plausible given
the magnitude of the other factors influencing that calculation. Those factors included the
contributions made to the fund over a 5-year period by the approximately 800 other participating
employers, and the performance of the fund’s investments.
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pension contributions by January 1. Although the record shows that Hewitt repeatedly made
such representations to the Union, he did not to testify about the basis for those
representations, or about anything else. Teague testified that his "understanding" was that if the
Respondent contributed at the higher level for even a single hour in 2006, it would be "locked
in," however, his testimony did not show that he had a reasonable basis for that
understanding.22
Love, Teague, and Lukacs testified regarding their personal views as to whether
impasse existed. Love testified that impasse did not exist. Tr. 460, 515-16. He recounted that
the parties were still discussing whether they could agree to a withdrawal from the LIUNA plan
that was premised on allowing unvested employees an opportunity to vest, and to a
compromise that would involve returning a portion of the pension contribution reduction as a
wage increase. According to Love, the parties simply “ran out of time” before the Respondent’s
January 1 "deadline" because they had been waiting for the withdrawal liability calculation which
did not become available until "very late in the game" – about 2 weeks before January 1 and at
the start of the of the holiday season. Tr. 560.23
Regarding the testimony of the Respondent’s witnesses about whether they believed
that impasse existed, I begin by noting that the Respondent failed to present the testimony of
Hewitt, even though he was the chief negotiator during the months leading up the declaration of
impasse, and the individual who made the declaration of impasse. Hewitt was the witness in
the best position to testify on behalf of the Respondent about circumstances surrounding the
declaration of impasse, and his failure to testify and subject himself to cross-examination is
cause for some suspicion. Instead, the Respondent relied primarily on the testimony of Teague,
who testified that the parties were at impasse on December 31, 2005, Tr. 872-73. I give his
testimony little weight for a number of reasons. First, Teague did not even attend the December
13 session. That was the key session for purposes of determining whether the parties were at
impasse because it was the last one before the January 1 implementation, and the one at which
Hewitt declared impasse. In addition, at that session the Union made an informal proposal
along the lines of one that Hewitt had broached with Love a few days earlier – i.e., that the
Union would accept the 82-cent reduction in hourly pension contributions if a portion of that
reduction was returned to employees in the form of wages. During that session, the Union also
discussed its willingness to agree to withdraw from the LIUNA plan as long as unvested
employees were given an opportunity to vest. Because Teague did not have first hand
knowledge of that key meeting, his opinion about impasse was not fully informed. Lastly, I note
that, for reasons previously discussed, Teague showed himself to be lacking in credibility
regarding disputed matters.
Lukacs testified that the parties were "pretty much at impasse with the pension" at the
December 13 meeting. Tr. 788. I do not consider her testimony on this point to be entitled to
much weight. First of all, I note the lack of certainty in her statement – "pretty much" at impasse
is not the same thing as at impasse, even in layperson’s terms. Secondly, Lukacs admitted that

22 At any rate, for reasons discussed above, I found Teague to be substantially lacking in
credibility as a witness. See footnote 9, supra
23 I considered Love a fairly credible witness. His testimony regarding significant matters
was quite consistent and was generally consistent with the documentary evidence. He did
appear to struggle at times to remember dates and details and in some instances gave
testimony only when prompted by leading questions from counsel for the General Counsel.
However, overall, Love gave the impression that he was doing his best to testify accurately and
truthfully regarding the matters at issue.
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she generally was not included in the pre-negotiation meetings that the Respondent’s
bargaining team had before meeting with the Union bargaining committee. Therefore, it
appears unlikely that she was fully informed about the strategies, authorities, and analyses of
the Respondent’s chief negotiators. Third, Lukacs stated that, as far as she knew, both sides
made the same pension proposals on December 13 that they had been making for some time.
That testimony indicates that she was not aware that Hewitt had recently made an overture to
the Union about returning, in the form of wage increases, some of the money that the
Respondent wanted to cut from pension contributions. Nor was she aware that the Union’s new
proposal along those lines on December 13 came close to mirroring the terms of Hewitt’s
suggested compromise. Finally, I was not impressed with Lukacs’ demeanor as a witness.
During questioning by both sides, she was rather petulant – giving the impression that she
considered testifying an unwarranted imposition on her time and energy. She reacted to a
number of questions about disputed matters in which she was involved by indicating that she
could not possibly be expected to remember such details. In several instances she answered
that she could not remember without pausing for even a moment to search her memory.
D. The Strike
As discussed above, on May 19, 2005, the union membership voted to go on strike
effective June 12, 2006. The understanding was that the strike would be averted if the parties
reached a contract during the intervening weeks, and this understanding was communicated to
the Respondent. However, no agreement was reached, and the union membership began a
strike at approximately 11 pm on June 12. At the outset, all unit employees participated. The
Respondent continued to operate the facility during the strike by using management personnel,
personnel from other Leggett & Platt facilities, and temporary replacement workers. In addition,
over the course of the strike a number of unit employees decided to resign their union
memberships and return to work. At trial, witnesses for both sides referred to these individuals
as "crossover employees" or "crossovers." In order to complete work during the strike, the
Respondent moved workers between jobs and shifts. The Respondent operated the plant for
two shifts of 12 hours each, rather than for 3 shifts of 8 hours each, as was the case before the
strike.
At some point during the strike, the Respondent also hired two replacement workers on
a permanent basis. The Respondent informed the Union that these individuals were being hired
to permanently replace the two unit employees with the least amount of seniority – individual
charging parties Kornides and Gruss. Kornides and Gruss were both classified as "general
finishers," an entry-level position that does not require specific skills or prior experience.
During the strike, the Respondent informed the bargaining unit employees that they
could return to work under the terms of the most recent contract. This offer was reiterated by
Krinock in a July 19 letter to employees, in which he stated that, "as previously advised, the
Company has continuing work available to you under the terms of the expired Collective
Bargaining Agreement." On August 18, 2005, after the employees had been on strike for
approximately 9 weeks, Love sent Hewitt a facsimile correspondence, in which he stated: "The
executive board of the union voted unanimously to return to work . . . . This is of course under
the terms of the expired contract." The next day, Love sent Hewitt a second facsimile
correspondence in which he stated:
[W]e are willing to return to work under the existing terms and conditions of the expired
contract, with or without an extension agreement and end the strike immediately.
Please advise me as soon as possible if the company position has now changed, I
understood that a return to work was an open option.
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That same day, Hewitt responded in a letter stating that: "Continuing work is available under the
conditions which existed prior to the strike with those terms and conditions being available for a
reasonable period of time pending the outcome of bargaining."
E. Unit Employees Return from Strike
On August 29, the bargaining unit returned to work, ending the strike. All the temporary
workers who the Respondent had retained during the strike were relieved of their duties. When
the former strikers returned to work, Krinock gathered the employees, supervisors, and
managers together for a meeting during each shift. The testimony regarding Krinock’s
statements indicates that there was little variation in what he said during these meetings. First
Krinock welcomed the employees back. Then he stated that he recognized that everybody “hurt
a lot” during the strike, but that it was important to "move on" because the Respondent needed
to get back to work. He said he wanted everybody to respect one another and that
management was going to show such respect. He stated that if there was anyone who could
not work under those conditions, or did not want to be there, the Respondent would grant that
individual a permanent layoff and not contest his or her claim for unemployment insurance. Of
the approximately 300 unit employees, 25 or so never returned after the strike. Another 14
resigned over the course of the two weeks following Krinock’s speeches. At the time of trial, the
total number of unit employees who either did not return from the strike, or subsequently
resigned, was about 45.
F. Kornides and Gruss Denied Reinstatement
As stated above, Kornides and Gruss were the bargaining unit employees with the least
seniority, and both were classified as general finishers. During the strike, the Respondent hired
two employees as permanent replacements for striking employees. The Respondent informed
the Union that the two employees who had been permanently replaced were Kornides and
Gruss. Apparently the Respondent did not contact Kornides and Gruss directly to inform them
that they had been replaced, but Gruss testified that the Union’s attorney informed her by letter.
When the strike ended, Kornides and Gruss appeared for work on August 29 along with
the other former strikers. Upon reporting, each was required to meet with Lukacs. Lukacs met
with them separately, although Hillman, the vice-president of the Union, attended both
meetings. Lukacs informed Kornides and Gruss that they had been permanently replaced and
could not return to work that day. Lukacs told them that they were not being terminated, but
rather were subject to recall. She stated that they might be returned to work in as little as 3
days, depending on how many of the strikers resumed working. The Respondent did not recall
Kornides and Gruss to work until April 3, 2006 – over 7 months later. Approximately 2 months
before their recall, Lukacs contacted both Kornides and Gruss about an opening for a
maintenance worker. Based on Lukacs’ description of the qualifications for the maintenance
position, Kornides and Gruss agreed with Lukacs that they were not qualified for that position.
G. Wareham and Grazier
Jeffrey Wareham is employed by the Respondent as a quality control manager. One of
the employees Wareham supervises directly is Arthur Grazier. Grazier was a quality control
group leader during the period leading up to the strike and held that position immediately upon
his return from the strike. As a group leader, Grazier was the "go-to" person for customer
complaints and also provided training to other employees. Because of his group leader
designation, Grazier received an additional 20 cents per hour in wages. Grazier participated in
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the strike, engaged in some confrontational behavior while supporting the strike, and was one of
six employees who Teague accused of picket line misconduct in a July 15 letter to the Union.
Grazier testified, without contradiction, that he was "very active" in union activities.
When Grazier returned from the strike he attended the "welcome back" presentation by
Krinock. Shortly thereafter, Wareham held his own meeting with employees under his
supervision, including Grazier. Wareham explained to the employees that he was going to have
to change the way the quality control department operated because they had fewer employees.
Wareham welcomed back the former strikers and asked if they "would have any problem
communicating with the crossover employees." Neither Grazier nor anyone else said that they
would have a problem.24
On an occasion in late October or early November 2005, Grazier, by his own account,
“got a little loud” during a conversation with a co-worker about the negotiations for a new labor
contract. This occurred near Wareham, who overheard some of the conversation, which
Wareham understood to turn on Grazier’s view of what the current contract provided for
regarding overtime pay for work on Sundays. Wareham called Grazier into his office and told
Grazier he needed to learn to "keep his opinions to himself." Grazier responded, "I’m 43 years
old and if I have something to say, I’ll say it." Wareham showed Grazier a contract provision
that, according to Wareham, demonstrated that Grazier was mistaken about the Sunday
overtime issue. Then Wareham told Grazier, "If you are going to be loud and spouting off, at
least be right. . . . . [Y]ou are lead man and, you know, I expect you to lead in the right
direction.” Grazier responded, “[Y]ou can stick this lead man 20 cents up your ass.” Then
Grazier left Wareham’s office.

24 According to Grazier’s testimony, Wareham also warned that if any returning striker could
not get along with the crossover employees that individual would “be taken out of quality control
and . . . assigned to the general finishing department.” Grazier testified that such a
reassignment would constitute a reduction in status and pay. Grazier stated that he discussed
Wareham’s statement with Hillman, but Hillman did not corroborate this. Grazier did not
specifically mention reporting Wareham’s statement to Cogan, but Cogan stated that Grazier
had complained about it to him. For his part, Wareham denied that he made the statement
about transferring employees to the general finishing department. That denial was corroborated
by Christopher Horrell, another employee who attended the meeting. Horrell is currently
supervised by Wareham and was one of the crossover employees. On this record, I conclude
that the General Counsel has failed to show that Wareham warned returning strikers that they
would be reassigned to general finishing work if they did not get along with the crossover
employees. Both Grazier and Wareham had a personnel interest in the outcome of this matter.
In Grazier’s case, his testimony sometimes reflected an effort to conform his account of what
was said to his impression of the meaning behind those statements. For example, when initially
testifying about Krinock’s “welcome back” speech, Grazier testified that Krinock said if there was
“any union member there that couldn’t work under them circumstances” (i.e., “moving on” from
the strike) the Respondent would “grant them layoff and not mess with their unemployment.” Tr.
390. However, when pressed on that point he admitted that Krinock had not directed the
comment to “any union member,” but rather to “anyone here,” Id. -- a group that included
supervisors and managers. When recounting a subsequent exchange with Wareham, Grazier
omitted any reference to his own use of vulgar language, and it was only when confronted on
cross-examination that he admitted to using that language. Compare Tr. 401 at lines 1-5 with
Tr. 412 at lines 4-12.
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On the day of this exchange, Wareham remained after the end of his own shift because
he hoped that Grazier would return to apologize. Grazier did not do so, and at one point
another employee came to Wareham’s office and told him that Grazier had recounted telling
Wareham to take the lead person designation and "shove it." Subsequently, Wareham notified
Lukacs that Grazier was no longer a group leader. As a result, Grazier’s pay was reduced by
20 cents per hour. Wareham testified that the reduction in Grazier’s duties and pay was not a
disciplinary action, and Wareham apparently made no disciplinary report regarding the incident.
Wareham stated, rather, that he understood that Grazier had resigned from the group leader
designation. Wareham conceded that he never asked Grazier whether he meant to resign his
group leader duties. By the same token, after discovering that his 20-cent group leader
differential had been eliminated, Grazier did not complain to Wareham or file a grievance stating
that he had not meant to resign. While testifying, Grazier never denied that by telling Wareham
to "stick this lead man 20 cents up your ass," he had meant to resign his group leader duties.
H. Edward Byers’ Duties
Edward Byers is a working foreman in the shipping department. He is paid on an hourly
basis, is a bargaining unit employee, and participated in the strike. At the time of trial he had
been employed by the Respondent for over 12 years, the last 8 or 9 of those years in the
shipping department. Prior to the strike he had a wide range of duties, which included: ensuring
product flow out of the facility; overseeing the flow of raw materials in and out of the facility;
monitoring the work of shippers, receivers, and drivers; figuring out how best to use carriers and
carrier routes; negotiating contracts with carriers within corporate guidelines; working with other
departments to develop packaging for new products; determining how to utilize floor space
within the shipping and receiving department; and inspecting the outside buildings and grounds.
A number of these duties were not set forth in Byers’ written job description, however, Byers
had acquired the additional duties over the course of time and had been performing them for a
number of years. The record does not reveal who, if anyone, was performing these duties
before they became Byers’ responsibility. Hillman testified that the Union believed all the tasks
performed by Byers had always been bargaining unit work. Prior to the strike, Byers worked an
average of 10 to 12 hours of overtime each week, and was not required to seek approval before
doing so. His work station was in an office where he had the use of two desks, a computer with
e-mail and internet access, a cell phone, a fax machine, and a copier. Two secretaries assisted
him. 25
When Byers returned to work on August 29, following the strike, Vincent Battaglia, the
Respondent’s production manager, told him that changes had been made by Nancy Hauser, the
Respondent’s controller.26 Battaglia stated, in general terms, that Byers’ duties had been
changed and that his work would now be confined to shipping and receiving. Byers would no

25 In its brief the Respondent states that Byers “admitted that many of the duties he had
performed before the strike were supervisory or managerial and did not constitute bargaining
unit work.” Respondent’s Brief at 30. This is not a fair characterization of the record. The
testimony indicates that, in an affidavit given to the Board, Byers stated that some of his duties
might have involved the use of managerial or supervisory authority. Tr. 370-71. Byers testified
that he did not believe he was a managerial or supervisory employee, Tr. 381-82, and that he
did not have any concerns that he was outside the bargaining unit, Tr. 373. The Respondent
has not claimed that Byers was a nonunit employee, and Byers did not recall the Respondent
describing the tasks at-issue as nonunit work. Tr. 379-80.
26 The Respondent admits that Battaglia and N. Hauser are supervisors and agents of the
Respondent for purposes of the Act.
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longer be located in his office work station, or have use of the computer and the cell phone, and
would no longer be working overtime. About a week later, N. Hauser met with Byers about the
change in duties. At that meeting, Byers was told that he would no longer be ensuring the flow
of raw materials in and out of the facility, scheduling carriers, negotiating contracts or rates with
carriers, developing packaging, determining how to utilize floor space in the department, or
inspecting the buildings and grounds. These duties were reassigned to nonunit employees.
Byers complained about the changes, and Battaglia told him that they were "based upon the
Company needing a company person or personnel to in effect have a paper trail which was
based upon 9/11 and Sarbanes-Oxley or whatever the bill was." Since the changes were made,
Byers has not had the opportunity to earn overtime pay, but his regular hourly wage rate has not
been reduced.
The Union did not consent to the changes made to Byers terms and conditions of
employment or to the reassignment of some of his work to nonunit employees. Nor was the
Union given notice and an opportunity to bargain regarding those changes.
I. Cooper and Rellick
Patrick Cooper is employed by the Respondent as a shift facilitator, and is a supervisor
and agent of the Respondent for purposes of the Act. One of the employees who Cooper
supervised at the time the strike ended was Christopher Rellick. Rellick was a casting
employee who had been employed by the Respondent for about 3 years, and participated in the
strike.
Soon after the employees returned from the strike, two of Rellick’s co-workers and two
foremen reported to Cooper that Rellick was refusing to perform certain aspects of his position27
and was complaining that he hated his job and did not think that the employees should have
returned to work. Rellick testified that he had, in fact, told one of these co-workers that he was
not happy to be back from the strike "because nothing had been settled" and he "did not know
what was going to happen in the future."
At work the next evening, Cooper asked Rellick whether there was "a problem with
anything that was going on at work." Rellick said that he did not have "a problem with anything."
Cooper reminded Rellick about the "welcome back" speech that Krinock had given, and said
that Rellick "should leave" if he was not happy working there. Rellick replied that he was there
"to work." Cooper stated, "[I]f I have to take you upstairs to my office, [you will] be fired and . . .
w[ill] not be able to collect unemployment." Rellick asked if he was being accused of something,
and Cooper responded, "I have to do what I have to do."28

27 The record does not show whether these reports to Cooper were accurate.
28 This account is based on a combination of Cooper’s and Rellick’s testimonies. I have
accepted Rellick’s testimony that Cooper threatened that Rellick would be fired and denied
unemployment compensation, over Cooper’s testimony that he did not make such statements.
The record shows that Rellick’s testimony about the exchange was consistent, but that Cooper
repeatedly contradicted himself. Compare Tr. 767 (Cooper testifies that he asked Rellick if it
was true that he hated being there.) with Tr. 770 (Cooper testifies that he did not ask Rellick if
he hated being there.); Compare Tr. 767 (Cooper testifies that when he asked if Rellick heard
Krinock say that employees did not have to be there if they did not want to be, Rellick said that
“he didn’t remember that”) with Tr. 771-72 (Cooper testifies that when he asked if Rellick heard
Krinock say that employees did not have to be there if they did not want to be, Rellick “sort of
nodded” but said nothing); Compare Tr. 767-69 (Cooper testifies to multiple responses by
Continued
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When Rellick completed his shift, he discussed Cooper’s remarks with Cogan. After this
discussion, Rellick and Cogan met with Lukacs on either September 1 or 2. Rellick told Lukacs
that he had decided to accept Krinock’s offer of the layoff. Lukacs asked "Why?" and Rellick
responded, "Let’s just say that things just didn’t work out and I’m going to accept that layoff.”
Lukacs said that “I’m sorry you feel that way about it." Lukacs asked him what was wrong, but
Rellick said "Let’s just leave it go." Cogan later informed Lukacs about what Rellick had told
him regarding the conversation with Cooper, but the Union did not file a grievance regarding it.
J. Lukacs’ Conversation with Hauser
Jan Hauser has worked for the Respondent for over 7 years as a general finisher. In
early October 2005, she went to Lukacs’ office, to ask how many vacation days she had left that
year. While the two were alone in Lukacs’ office, Lukacs asked J. Hauser whether she was
paying her union dues. J. Hauser responded "yes." Then Lukacs said, "Well, you don’t have to,
because we have no contract."29
The Respondent’s counsel elicited testimony from Lukacs that, approximately 3 months
after the strike, two employees expressed concern to her that they would lose their jobs if they
did not pay their union dues, and that she had told those employees that she did not believe that
this was true. However, neither Lukacs, nor anyone else, claimed that J. Hauser had expressed
concerns that she would lose her job for not paying union dues. Nor did the evidence show that
such concerns had ever been expressed to Lukacs by any employees prior to the October
meeting between J. Hauser and Lukacs.
K. Shift and Job Assignments
Under the most recent bargaining agreement, the Respondent must use the bid process
when assigning an employee to a new shift on a permanent basis.30 On the other hand, the
Respondent has long had authority to make temporary shift reassignments without using the bid
process as long as the employee consents to the temporary reassignment. In the event there
are no volunteers, the Respondent may reassign the least senior employee on a temporary
basis. The Respondent does not have to obtain the Union’s approval before making such
reassignments. Similarly, while the bargaining agreement requires the Respondent to use the
bid process when assigning an employee to a new permanent job, the Respondent has the
authority to fill temporary job openings without using the bid process.31 The credible evidence
_________________________
Rellick during the conversation.) with Tr. 772 (Cooper testifies that Rellick “never replied . . . on
any part of it.”). Based on the testimony, the demeanor of the witnesses, and the record as a
whole, I credit Rellick’s testimony over Cooper’s regarding the disputed statements.
29 I credit Hauser’s clear and confident testimony regarding this exchange. Lukacs testified,
but her testimony on the subject was far less confident. She testified that she remembered
Hauser coming to her office to ask about vacation days, but stated that she could not remember
the details of their conversation. Tr. 783. When asked if she told Hauser that she did not have
to pay union dues, Lukacs responded, “I don’t remember.” Tr. 782.
30 The Respondent’s facility operates on a 3-shift schedule. The first shift, also known as
daylight shift, begins at 7am and ends at 3pm. The second shift, which is also referred to as the
afternoon shift or swing shift, begins at 3pm and ends at 11pm. The third shift, also known as
the midnight shift or graveyard shift, starts at 11pm and ends at 7am.
31 There was some testimony suggesting that under certain circumstances only the
employee with the least seniority could be reassigned to a job other than his or her bid job.
Continued
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shows that the Union has also recognized the Respondent’s authority to assign an employee to
perform any type of work that falls within that employee’s job classification.
As discussed above, about 25 unit employees did not return at the end of the strike, and
another 14 or so resigned during the subsequent weeks. The vacancies caused by these
resignations were not spread evenly over job categories and shifts. In order to compensate for
the staffing imbalances that resulted, and ensure the completion of priority work, the
Respondent made temporary shift assignments and temporary job assignments more frequently
during the period immediately after the strike than it had done before the strike. However, the
record does not show that this change in frequency persisted.
The Union president, Cogan, testified that the "main thing" was that since the strike the
Respondent had been using temporary assignments rather than posting the jobs for bid by
employees. However, Simpson, another union official who was called by the General Counsel,
testified that the frequency of temporary assignments was generally no greater than before the
strike. Tr. 241. I find that the record fails to establish the existence of a prior, established,
practice or policy that dictated when the Respondent would meet a staffing need through the
use of a temporary assignment, and when the employer would meet such a need by posting a
permanent job or shift assignment. To the extent that there was an increase in the use of
temporary assignments for a period immediately after the strike, the evidence did not
demonstrate that this increase resulted from any change in standards, rather than from the
application of pre-strike standards for non-bid transfers to the altered circumstances created by
the resignations of a large number of bargaining unit employees.
The General Counsel presented evidence that in a September 8, 2005, memorandum to
various managers and supervisors, Krinock listed the job titles and shift assignments of 28 unit
employees who had left the company, and stated: "We will ultimately be bidding the jobs that
were left open by these departures and right sizing all departments and shifts. In the meantime
coordinate the remaining personnel to assure that our top priority jobs are being shipped and
our customer needs are being met." The record suggests that not all of those 28 positions were
ultimately filled through the bid process. Indeed, in late October or early November 2005, the
Respondent posted a bid sheet listing 15 to 20 vacancies, but ultimately chose to fill only 3 of
those vacancies based on bids. The uncontradicted testimony was that many employees had
signed up to be considered for those vacancies, and that the bid sheets were filled, or nearly
filled, at the time the Respondent took down the posting. The Respondent’s witnesses did not
provide any direct explanation for the Company’s decision not to fill the other 12 to 17 positions
posted for bid. This episode is, in my view, cause for suspicion that something was in flux
regarding how such determinations were made post-strike. However, cause for suspicion is not
the same as evidence demonstrating either the existence of an established practice or a
significant change from that practice. Moreover, the record suggests that other factors would
have influenced the Respondent’s decisions about whether to make permanent assignments
after the strike, even if the general parameters used to make such decisions were unchanged.
Krinock credibly testified that the Respondent’s staffing needs were decreasing around the time
of the strike due to the loss of several major customers. He also credibly testified that, during
the period when managers were filling-in for the striking employees, those managers had
identified inefficiencies in the manufacturing process and that by correcting those inefficiencies
had been able to increase the amount of work that each employee could produce.
_________________________
However, this practice was only mentioned, not described in any way that would permit me to
determine whether it constituted an established practice or, if so, whether it had been
meaningfully departed from.
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The General Counsel also presented evidence regarding three individual employees
who were reassigned. One of the employees, Tom McIntyre, had been working as a layout
technician, but was reassigned to a job as a floor inspector when the employee who held the
position did not return from the strike. This reassignment was made without use of the bid
process and yet McIntyre continued to work in the floor inspector assignment at the time of trial,
almost a year after the reassignment. Another employee, Rob Buchanan, was transferred from
the midnight shift to the afternoon shift without use of the bid process. Buchanan remained on
the afternoon shift for 5 or 6 months before being returned to the midnight shift. The evidence
also indicates that Don Siko, a crossover employee, was assigned to the daylight shift during
the strike and remained in that position after the strike for a little over 3 months until December
2, 2005, when he resigned. Although these are rather extended reassignments, the evidence
did not show that their durations exceeded any pre-strike limits on how long a “temporary”
reassignment could last.
The General Counsel argues that the Respondent changed its practices by reassigning
employees to new shifts without their consent. However, the General Counsel presented no
real evidence to support this assertion. Instead, the General Counsel argues that the fact that
the Respondent did not call any employees to testify that they transferred voluntarily "strongly
suggest[s] that most of these temporary transfer of shifts [were] not voluntary." GC Brief at
Page 14. However, the General Counsel had the opportunity to call employees as witnesses,
and failed to elicit testimony from any who said they were transferred involuntarily. This despite
the fact that it is the General Counsel’s burden to show that there was a change to an
established practice. Moreover, Krinock testified that no one was involuntarily reassigned to a
different shift. Tr. 808. Wareham testified that he asked if Buchanan would temporarily transfer
to the afternoon shift given the lack of employees on that shift, and that Buchanan had
consented and stated that he "would be glad to do it." Tr. 716.32 The evidence shows,
moreover, that all the former strikers who started working on August 29 were assigned to their
established shifts and that no unit employee was "bumped" from his or her shift as a result of
the reassignments of Buchanan and Siko.
L. Assignment of Unit Work to Process Technicians
Process technicians, also referred to as process engineers, were a group of nonunit
employees at the Respondent’s facility. Prior to the strike, the Respondent and Local 1451 had
a practice of permitting process technicians to perform unit work when unit employees were on
break or vacation, or were sick or injured. The record indicates that, after the strike, the
frequency with which the Respondent used process technicians to perform bargaining unit work
temporarily increased from once every couple of weeks, to daily. This change continued for a
period of several months after the strike. Hillman, vice-president of Local 1357, testified that,
after the strike, he saw process technicians performing some specific unit tasks that he had not

32 This testimony concerned a “verbal act” -- i.e., the giving of consent -- and therefore was
nonhearsay. See U.S. v. Moreno, 233 F.3d 937, 940 (7th Cir. 2000) (utterance of consent
amounts to a “verbal act,” and is not inadmissible hearsay). At any rate, no objection was made
to Wareham’s testimony about what Buchanan said to him. Grazier testified that Buchanan had
confided that he would rather be on the midnight shift. Tr. 416. The Respondent objected that
Grazier’s testimony on that subject was hearsay, and I conclude that it is entitled to little weight.
Even assuming, for purposes of argument, that Buchanan preferred the midnight shift, that
would not prove that he did not volunteer to be reassigned to the afternoon shift when asked to
help address a staffing shortage.
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observed them doing prior to the strike. However, Simpson, another union official, testified that
the difference in how the process technicians were being used after the strike was a matter of
frequency and of the fact that, in the past, there had not been unit members awaiting recall
when the process technicians were performing unit work. The record evidence indicates that
the circumstances under which process technicians were called upon to perform unit work –
e.g., when unit employees were on break, on vacation, sick, or injured – did not change.
On September 9, 2005, the Union filed a grievance concerning the issue of the unit work
being performed by nonunit employees. The Respondent denied the grievance. In a letter
dated September 15, 2005, Lukacs informed the Union that "[m]anagement personnel are
helping out by running breaks due to the fact that some of our shifts are short people," but that
this would stop "when the shifts are balanced."
M. Subcontracting
The most recent contract between the parties states that "The Company shall have the
right to subcontract normal bargaining unit work only when such subcontracting does not result
in a layoff or there are no employees on layoff." The same language appears in every prior
labor agreement in the record, including the initial contract reached in 1978. In the negotiations
for a new contract, the Respondent was seeking to amend this provision to delete the clause
that precluded subcontracting when there were employees on layoff, but the Union had not
agreed to such a change. Krinock testified to a number of types of work that the Respondent
had subcontracted prior to the strike. However, the Respondent did not show that any of that
work was subcontracted at a time when unit employees were on layoff.
The record shows that, following the strike, the Respondent subcontracted a number of
different types of work, including central melt work, the rebuilding of equipment (machine 7),
relining one furnace, and patching another furnace. This was all work that bargaining unit
employees were capable of performing and, at least in the case of the central melt work and
machine rebuilding, had been responsible for performing in the past.33 Kornides and Gruss, two
unit employees, were on layoff when this work was subcontracted. The Respondent did not
deny the allegation that it took this action without giving the Union notice or an opportunity to
bargain.34
In its brief, the Respondent claims that the bargaining agreement states that the
prohibition on subcontracting while employees are on layoff only applies when the laid off
employees are "qualified to perform the contracted work." Respondent’s Brief at 28. However,
this is false. The agreement in no way limits the prohibition on subcontracting to situations in

33 The conclusion that the Respondent subcontracted this work after the strike is based on
the testimonies of Grazier and Hillman. Krinock testified about the subcontracting issue, but did
not clearly deny that unit employees had previously been responsible for performing some types
of work that were being subcontracted after the strike. When asked if the Respondent might
have subcontracted unit work after the strike, Krinock initially responded: “No sir. Not that I’m
aware of.” However, when questioned further Krinock admitted that “we may have” engaged in
such subcontracting. Tr. 817. Later, Krinock testified that the Respondent had engaged in
subcontracting after the strike, using a company called Arc Master to perform production work.
Tr. 828.
34 In its answer to the complaint, the Respondent denied that its post-strike subcontracting
represented a change in its practices, but it did not deny that it engaged in the post-strike
subcontracting without giving the Union notice or an opportunity to bargain.
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which the laid off employees are capable of performing the specific contracted work. The
Respondent does not even cite to any testimony indicating that its misstatement of the rule
reflects the parties understanding of the contract’s contrary language. The rule stated by the
Respondent would not be an unreasonable one, but it was not the rule the parties agreed to.
N. Overlap Meetings
For a period of at least 4 years prior to the strike, the Respondent had an established
practice of permitting quality inspectors the option of working 15 minutes of overtime at the end
of their shifts in order to communicate information to personnel on the incoming shifts.35 The
quality inspectors were paid for the extra 15 minutes when they chose to stay for one of these
"overlap meetings." If their hours totaled over 40 for the week, the additional 15 minute periods
were compensated at the higher, overtime, rate. In the case of Grazier, the extra pay
attributable to attendance at these overlap meetings amounted to approximately $1000 per
year, although it appears that during the 6 months leading up to the strike his participation had
tapered off.
Upon the strike ending, Wareham eliminated the 15-minute overlap procedure. He
testified that he did this because attendance at the overlap meetings had been poor. Instead,
Wareham began to rely on the use of logbooks in which employees recorded information. Nine
to 12 months after the strike ended, the Respondent instituted what are referred to as "pass
down meetings" for the sake of communications between shifts. These meetings are more
structured than the old overlap meetings. Wareham assigns one inspector from each shift to
attend these meetings, rather than permitting all of the inspectors the option of participating. In
its answer, the Respondent denies that it changed the overlap procedures, but does not deny
that it failed to give the Union prior notice or an opportunity to bargain. Similarly, in its brief, the
Respondent argues that elimination of the 15-minute overlap meetings was not a violation of
any bargaining obligation, but does not assert that it bargained with the Union before eliminating
the overlap meetings. Wareham’s testimony, read as a whole, gives rise to a reasonable
inference that he made the change without notifying the Union.
O. Requests for Seniority Lists
Prior to October 2005, Hillman had asked Lukacs for seniority lists on approximately 10
to 15 occasions and in almost all cases Lukacs had supplied the lists the same day or the next
day. Sometimes Lukacs simply printed the seniority list on the spot. In late October 2005,
Hillman again asked Lukacs for a seniority list. On this occasion Lukacs stated, without further
explanation, that she could not get the list for Hillman. About a week later, Hillman and/or
Cogan requested the seniority list again, but still it was not supplied. Hillman and Cogan told

35 In its brief, the Respondent states that the practice with respect to these overlap meetings
“had changed from time to time over the years.” Respondent’s Brf. at 29. The Respondent
makes this claim without any citation to the record, and I am aware of nothing showing that
multiple, or meaningful, changes were made to this practice during the 3 years that preceded
the strike.
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Love that Lukacs had not supplied the requested seniority information. Love orally requested
the seniority list from Hewitt at the December 13 bargaining session, but the list was not
provided. 36 By letter dated January 11, 2006, Love requested that the Respondent provide the
Union with the seniority list. Eight days later, on January 19, 2006, the Respondent supplied the
seniority information to the Union.
P. Complaint Allegations
The complaint alleges that the Respondent violated section 8(a)(5) and (1) by: falsely
declaring impasse orally on or about December 13, 2005, and by letter on December 20, 2005,
over the single issue of the Respondent’s pension plan proposal; announcing its intention to
implement a pension plan proposal as of December 31, 2005, in the absence of impasse; and,
unilaterally implementing the Respondent’s pension plan proposal at a time -- about December
31, 2005 -- when the Respondent had not bargained to a good faith impasse. The complaint
alleges that the Respondent also violated section 8(a)(5) and (1) by failing to give the Union
notice and an opportunity to bargain over the following changes and their effects: the temporary
transfers of employees among shifts; the temporary transfers of employees among jobs; the
routine assignment of bargaining unit work to non-bargaining unit process technicians; the
subcontracting of bargaining unit work; the elimination of scheduled daily overtime for quality
control inspectors; and the permanent reassignment of bargaining unit work from the shipping
department working foreman to non-bargaining unit employees. The complaint also alleges that
the Respondent violated section 8(a)(5) and (1) by waiting until January 19, 2006,37 before
supplying updated seniority rosters that the Union first requested in or about late October 2005.
The complaint alleges that through its overall conduct, the Respondent failed and refused to
bargain in good faith in violation of section 8(a)(5) and (1).
In addition, the complaint alleges that the Respondent violated section 8(a)(1): on or
about August 29, 2005, when Wareham threatened employees with demotion if they could not
get along with crossover employees; on or about September 2, 2005, when Cooper threatened
employees with termination and the denial of unemployment compensation if they did not elect
to take a voluntary layoff; and in or about October 2005, when Lukacs interrogated employees
about their union support and solicited employees to withdraw their economic support from the
Union. Finally, the complaint alleges that the Respondent violated section 8(a)(3) and (1) by
discriminating against employees, and thereby discouraging membership in a labor
organization, by: failing to reinstate Kornides and Gruss from August 29, 2005, until mid-April
2006; and demoting Grazier from his position as group leader in October or November 2005.

36 Hillman and Love testified with certainty about their requests for the seniority information.
Lukacs testified, but could not remember whether Hillman had requested such information in
late October 2005, although she said Hillman had “probably” made such a request in the fall or
winter of 2005. Lukacs denied that she had ever refused to provide a seniority list when one
was requested, but she did not claim specific memory either of Hillman’s late October oral
request or of supplying the information in response to that request. To the extent that Lukacs’
testimony can be viewed as a denial either that Hillman orally requested the information in late
October 2005, or that Lukacs had failed to supply it, I credit Hillman’s clearer and more certain
testimony over that of Lukacs. Regarding Love’s testimony that he requested the information
from Hewitt at the December 13 meeting, there was no significant contrary evidence.
37 See footnote 1, supra.
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III. Analysis and Discussion
A. Unilateral Implementation of Reduction in Pension
Contributions and Respondent’s Claim of Impasse
The General Counsel alleges that the Respondent violated section 8(a)(5) and (1) by
unilaterally implementing it pension proposal on January 1, 2006, at a time when good faith
impasse had not been reached regarding either the pension plan proposal or overall
negotiations. In addition, the General Counsel alleges that the Respondent violated Section
8(a)(5) and (1) when, prior to such implementation, it falsely declared impasse based on the
single issue of pension benefits and announced that it would implement its pension proposal.
For the reasons discussed below, I conclude that the Respondent committed these violations.
The Board has held that when, as here, the "parties are engaged in negotiations for a
collective-bargaining agreement," the employer's obligation to refrain from unilateral changes
regarding mandatory subjects "'extends beyond the mere duty to provide notice and an
opportunity to bargain about a particular subject matter; rather it encompasses a duty to refrain
from implementation at all, absent overall impasse on bargaining for the agreement as a whole.
'"Register-Guard, 339 NLRB 353, 354 (2003), quoting RBE Electronics of S.D., Inc., 320 NLRB
80, 81 (1995); Bottom Line Enterprises, 302 NLRB 373, 374 (1991), enfd. sub nom. Master
Window Cleaning v. NLRB, 15 F.3d 1087 (9th Cir. 1994) (Table). The employer's obligation to
refrain from such changes survives the expiration of the contract, and failure to meet that
obligation is a violation of Section 8(a)(5) and (1) of the Act. Newcor Bay City Division, 345
NLRB No. 104, slip op. at 10 (2005); Made 4 Film, Inc., 337 NLRB 1152 (2002).
In this case, there is no dispute that the Respondent made a unilateral change to
employees’ pension benefits and that such benefits are a mandatory subject of bargaining.38
The Respondent contends that it was within its rights in doing this because the parties had
reached a good faith impasse in negotiations. As the party asserting impasse, the Respondent
has the burden of establishing that impasse existed. L.W.D., Inc., 342 NLRB 965 (2004);
CalMat Co., 331 NLRB 1084, 1097-98 (2000), Outboard Marine Corp., 307 NLRB 1333, 1363
(1992), enfd. 9 F.3d 113 (7th Cir. 1993) (Table). The Board defines bargaining impasse as the
"situation where 'good-faith negotiations have exhausted the prospects of concluding an
agreement.'" Royal Motor Sales, 329 NLRB 760, 761 (1999), enfd. sub nom. Anderson
Enterprises v. NLRB, 2 Fed. Appx. 1 (D.C. Cir. 2001), quoting Taft Broadcasting, 163 NLRB
475, 478 (1967), enfd. sub nom. Television Artists, AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir.
1968). It is "the point in time of negotiations when the parties are warranted in assuming that
further bargaining would be futile . . . . 'Both parties must believe that they are at the end of their
rope.'" AMF Bowling Co., 314 NLRB 969, 978 (1994), enf. denied, 63 F.3d 1293 (4th Cir. 1995),
quoting PRC Recording Co., 280 NLRB 615, 635 (1986), enfd. 836 F.2d 289 (7th Cir. 1987);
Patrick & Company, 248 NLRB 390, 393 (1980), enfd. 644 F.2d 889 (9th Cir. 1981) (Table).
The question of whether a valid impasse exists is a "matter of judgment" and among the
relevant considerations are "[t]he bargaining history, the good faith of the parties in negotiations,
the length of the negotiations, the importance of the issue or issues as to which there is

38 The Respondent has not disputed that pension contributions are a mandatory subject of
bargaining. At any rate, the status of pension benefits as a mandatory subject has been
recognized by the United States Supreme Court. See Allied Chemical and Alkali Workers of
America, Local Union No. 1 v. Pittsburgh Plate Glass Co., Chemical Division, 404 U.S. 157, 159
(1971) (“Under the National Labor Relations Act, as amended, mandatory subjects of collective
bargaining include pension and insurance benefits for active employees.”)
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disagreement, [and] the contemporaneous understanding of the parties as to the state of
negotiations." Taft Broadcasting Co., 163 NLRB at 478.
In the instant case, the record shows that on December 13, during the same meeting at
which the Respondent declared impasse, the Union had offered to move towards the
Respondent’s proposals on some of the most important issues dividing the parties. Regarding
the pension plan, the Union stated that it would be willing to agree to the 82-cent hourly
reduction in contributions that the Respondent was proposing if the Respondent would agree to
return 55 cents of that amount to employees in the form of increased wages. Such an
arrangement would have addressed the Respondent’s stated concerns about the effects of the
current contribution level on its withdrawal liability, and would also ameliorate somewhat the
Union’s concern that a reduction in contributions was a "money grab," Tr. 557, by the
Respondent. The Union’s willingness to accept a decrease in pension contributions was a very
significant change given that the Union’s most recent comprehensive proposal, made on
November 16, had sought yearly increases in pension contributions. This movement by the
Union came in direct response to a pre-session overture by Hewitt, in which he indicated to
Love that the Respondent would be interested in receiving a proposal along those lines from the
Union. The fact that the Union stated its willingness to make such a concession on December
13 is compelling evidence that at the time the Respondent declared impasse the Union officials
had not given up on negotiating a compromise regarding pension benefits, but were still making
changes to their position in hopes of finding common ground on that issue.
The evidence also indicates that, on December 13, the Respondent was not at the end
of its own negotiating rope regarding the pension issue. As stated above, Hewitt had recently
made an overture to Love regarding the possibility of reaching a compromise based on the
Company taking a portion of the 82 cents per employee/per hour by which it was proposing to
reduce its pension contribution rate, and returning that portion to employees in some other form.
Not only that, but the Respondent had repeatedly told the Union that the Company would re-
examine its pension proposal when the parties received the pension withdrawal liability
calculation for 2005. Hewitt made that representation to the Union in letters of August 19,
September 20, and, most recently, November 23. In the September letter, the Respondent had
stated that an increase in the withdrawal liability calculation might discourage the Company from
withdrawing from the plan, and, in the August letter, the Respondent indicated that if such
withdrawal did not take place the contribution levels would not be reduced. The November 23
letter stated that "once that information [on withdrawal liability] is provided, the Employer will
reconsider its proposal" on pension benefits. Given these representations, the Respondent
cannot plausibly claim to have been at the end of its bargaining rope on the pension issue as of
December 13 -- only about 3 weeks after the November 23 letter and before it had received the
2005 withdrawal liability calculation. Based on this record, I conclude that the Respondent has
not only failed to meet its burden of showing that both parties were at the ends of their ropes
regarding negotiations over the pension benefit, but has failed to show that either party had
reached that point when Hewitt declared impasse on December 13.
The record also shows that the parties did not reach impasse regarding the pension
issues during the period between December 13 (when the Respondent prematurely declared
impasse) and January 1, 2006 (when the Respondent unilaterally implemented the pension
contribution reduction). During that interval, the Respondent finally obtained the withdrawal
liability calculation for 2005, and the Union, in turn, received that information from the
Respondent at some point between December 14 and December 20. By the time the parties
received the information, however, the Respondent had already declared that the parties were
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at impasse and that the Company would unilaterally reduce pension contributions on January 1.
These declarations were themselves unremedied unfair labor practices,39 and such declarations
would be expected to slow further progress in negotiations. Moreover, although Hewitt had
previously suggested that an increase in the withdrawal liability calculation might reduce the
Respondent’s enthusiasm for the pension changes it had proposed, after receiving the new
calculation, Hewitt told the Union that the increase in withdrawal liability actually reinforced the
Respondent’s determination to make those changes. In spite of the Respondent’s declaration
of impasse, and its contradictory statements regarding what an increase in withdrawal liability
would mean for negotiations, Love offered, on December 21, to "explore solutions to our
differences at any time," even during "the Holiday Season." Unmoved by this invitation to
further negotiations, the Respondent unilaterally implemented the pension contribution reduction
on January 1, 2006, without meeting to negotiate with the Union a single time following receipt
of the 2005 withdrawal liability calculation. Given these circumstances, it is plain that the
Respondent unilaterally implemented its proposal to reduce pension contributions before the
parties had a sufficient opportunity to consider changing their positions based on the withdrawal
liability information, or to discuss their proposals in light of that information. As Love put it, the
parties were not at impasse, but simply "ran out of time" before the Respondent’s January 1
"deadline." See Royal Motor Sales, 329 NLRB at 763 and 770 (union did not have critical
information on the employer’s proposals for a sufficient period of time and therefore the
employer "acted prematurely when implementing its final offer and did not place its theory of the
[union’s] bargaining rigidity . . . to the test").
Even assuming for purposes of argument that the parties were at impasse regarding the
issue of pension benefits, such a single-issue impasse would not legitimize the Respondent’s
actions since the Respondent was required to await overall impasse in the negotiations before
unilaterally reducing the pension contribution levels provided for under the expired contract.
See Register-Guard, supra; Bottom Line Enterprises, supra. The record in this case clearly
shows that the parties had not reached an overall impasse. Going into the December 13
meeting, the parties had already reached tentative agreement on 21 issues. On December 13,
the Union offered to make concessions that would significantly narrow the distance between the
parties’ positions on the important issues of wages, contract duration, and possibly health
insurance. Indeed, according to Hewitt’s December 20 letter to Love, Hewitt believed that the
Union had essentially agreed to the Respondent’s health insurance proposal. At the December
13 meeting, the Union also stated that it would agree to 3 percent wage increases for the first 3
years of a contract, and would accept the Respondent’s call for a 5-year contract if that contract
provided for increases of 3.5 percent during the final 2 years. This position mirrored a proposal
on wages and contract duration that the Respondent itself had made earlier, but now the
Respondent refused to accept it. This unwillingness to agree to a proposal that the Respondent
itself had made earlier is suggestive of an intent on the part of the Respondent’s negotiators to

39 An employer bargains in bad faith when, like the Respondent here, it prematurely
declares impasse, Grosvenor Resort, 336 NLRB 613, 615 (2001), South Carolina Baptist
Ministries, 310 NLRB 156, 157 (1993), Hotel Roanoke, 293 NLRB 182, 185 (1989), or threatens
to unilaterally implement a change at a time when good faith impasse has not been reached, J.
Josephson, Inc., 287 NLRB 1188, 1190 (1988). In addition, as is discussed below, the
Respondent committed a number of other unfair labor practices that were unremedied at the
time the Respondent declared impasse and unilaterally implemented its pension proposal. The
Board has long held that “even if the parties have reached deadlock in their negotiations, a
finding of impasse is foreclosed if that outcome is reached ‘in the context of serious unremedied
unfair labor practices that affect the negotiations.’" Royal Motor Sales, 329 NLRB at 762,
quoting Noel Corp., 315 NLRB 905 (1994).
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avoid an agreement. In addition, on December 13, the Union stated, for the first time, that it
would accept the Respondent’s proposal for an 82-cent reduction in pension contributions if the
Respondent agreed to offset 55 cents of that reduction with a wage increase.
The Respondent’s December 20, pre-implementation, letter makes clear that the
Company was declaring impasse only on the "pension issue." Nevertheless the Respondent
now argues that the parties were at overall impasse under the Board’s decision in CalMat Co.,
because "'a complete breakdown in the entire negotiations'" had resulted from the "'single
critical issue'" of pension benefits. Respondent’s Brief at 38; CalMat Co., 331 NLRB at 1097,
quoting Sacramento Union, 291 NLRB 552, 554 (1988), enfd. mem. sub nom. Sierra Publishing
Co. v. NLRB, 888 F.2d 1394 (9th Cir. 1989). It is true that pension benefits were the most
critical subject dividing the parties in December 2005. However, the record does not support
the Respondent’s claim that bargaining on that issue had caused a breakdown in overall
negotiations. To the contrary, the record shows that the parties were making progress on the
other major issues of health insurance, wages, and contract duration. The Union had modified
its positions on most, or all, of those subjects at the December 13 bargaining session. Those
concessions, made at the very session during which the Respondent declared impasse,
demonstrated a willingness on the part of the Union to remain flexible in order to reach a new
agreement. See Royal Motor Sales, 329 NLRB at 762 (no valid impasse when the Union had
made a dead-lock breaking proposal only 2 days earlier), Towne Plaza Hotel, 258 NLRB 69, 78
(1981) (employer’s declaration of impasse invalid where the union had significantly reduced its
wage demand only 2 weeks earlier and the union never stated it was unwilling to make further
concessions). Given the Union’s flexibility on major issues, the Respondent was "'required to
recognize that negotiating sessions might produce other or more extended concessions.'"
Royal Motor Sales, 329 NLRB at 772 quoting NLRB v. Webb Furniture Corp., 366 F.2d 314,
316 (4th Cir. 1966), enfg. 152 NLRB 1526 (1965). "Rather than explore the possibilities raised"
by the Union’s December 13 offers to compromise, however, the Respondent "rushed to declare
impasse and implement" its own pension proposal. Royal Motor Sales, 329 NLRB at 763. This
action "precluded further exploration of possible tradeoffs and foreclosed any finding that good-
faith bargaining exhausted the prospects of reaching an agreement." Id. "Having never fully
tested the finality of the Union’s bargaining position, Respondent is in a poor position to argue
that further negotiations would have been futile." Towne Plaza Hotel, 258 NLRB at 78.
The Union not only indicated continuing flexibility by its actions, but repeatedly notified
the Respondent that it was not at the end of its negotiating rope. The record shows that the
Union told the Respondent that the parties were not at impasse and offered to meet to explore
solutions. Under the circumstances present here – most notably Local 1357’s recent
concessions on key issues -- "the Union’s "protestations that negotiations have not reached
impasse provide substantial evidence to support . . . [a] finding of no impasse." Royal Motor
Sales, 329 NLRB at 773, citing Teamsters Local 639 (D.C. Liquor Wholesalers) v. NLRB, 924
F.2d 1078 (D. C. Cir 1991). Rather than indicating that there was a complete breakdown in
overall negotiations, the record shows that the Union was attempting to engage in a productive
exploration of the issues dividing the parties – an exploration that was cut short by the
Respondent’s insistence on unilaterally reducing pension contributions by its January 1
"deadline."40

40 The Respondent has not cited the Stone Container Corp. exception under which an
employer need not await overall impasse regarding certain changes that result from discrete,
annually recurring, events that are scheduled to take place during contract negotiations. 313
NLRB 336 (1993); see also TXU Electric Co., 343 NLRB No. 132 (corrected from No. 137), slip
op. at 4 (2004). At any rate, that exception does not apply to the Respondent’s January 1
Continued
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In reaching the conclusion that the parties were not at impasse, I considered the fact that
by time the Respondent declared impasse approximately a year had passed since the first
negotiating session for a new contract. However, it would not be fair to say that the parties had
been negotiating for a year at the time the Respondent made the impasse declaration. After
negotiations began, the bargaining unit employees organized a new local union to represent
them in contract negotiations, elected officers, and retained a new attorney (with no prior labor
law experience) to serve as lead negotiator. These actions interrupted negotiations for a period
of many months, and probably slowed progress for a period thereafter. Negotiations were also
complicated by the fact that the Respondent introduced harsher, in some instances
concessionary, proposals relatively late in the negotiations. In its January 31, 2005, proposal
the Respondent had been willing to increase pension contributions, although the increases were
less than what the employees had been seeking. Approximately 8 months later, the
Respondent proposed not only to eliminate all pension contribution increases, but to slash
contributions by over 50 percent from the current level. Similarly, in its January 31 proposal the
Respondent had offered wage increases of 3 percent during 3 years, and 3.5 percent during the
remaining 2 years, of a 5-year contract. On December 13, the Union stated that it was willing to
accept such a proposal, but the Respondent was no longer offering it or willing to accept it.
Negotiations were also slowed by the parties’ lengthy wait for the 2005 withdrawal liability
information. In August 2005, at the same time that the Respondent first proposed cutting its
pension contributions, the Respondent indicated that its view of the pension subject might
change depending on the withdrawal liability figure for 2005. That information was not received
by the parties until almost 4 months later and not until after the Respondent declared impasse.
During the interim, negotiations on the pension subject were hampered by uncertainty regarding
what that information would show. The Union reasonably believed that, given Hewitt’s prior
representations, the withdrawal liability information might alter the Respondent’s position
regarding pension issues. In addition, the record does not show that there had been an
inordinate number of bargaining sessions between the Respondent and Local 1357 prior to the
declaration of impasse. The record establishes approximately eight such sessions, and only
four of those sessions took place after Local 1357 retained attorney Love to serve as lead
negotiator. See Tom Ryan Distributors, 314 NLRB 600, 605 (1994) (no impasse where the
parties had met only eight times before employer declared impasse), enfd. 70 F.3d 1272 (6th
Cir. 1995) (Table).
The evidence shows that the Respondent declared impasse when it did because its self-
imposed "deadline" for cutting contributions to the pension fund – January 1 -- was
approaching, not on the basis of the actual prospects for reaching agreement. This was made
explicit in the contemporaneous pronouncements by Hewitt. At the December 13 negotiating
session, Hewitt stated that he had "no choice" but to implement the pension contribution
reduction because of the "looming January 1 deadline." He stressed the Respondent’s
determination to act by that date again in his December 20 letter to Love. An employer cannot
establish impasse when the evidence shows that its declaration was based on a desire to
implement a change by a particular date, rather than on the actual prospects for reaching
agreement. See CBC Industries, 311 NLRB 123, 127 (1993) (employer’s declaration of
_________________________
“deadline” since the evidence establishes that pension contribution levels can be changed at
any point during the year, and that the date when such a change is made has no particular
significance for purposes of calculating withdrawal liability. For the same reason, the
Respondent has failed to show that the January 1 “deadline” created an economic exigency or
business emergency that compelled it to implement the reduction in pension benefits without
reaching overall impasse. See RBE Electronics of S.D., 320 NLRB at 81.
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impasse not valid when motivated by employer’s desire to implement cuts immediately upon
expiration of the contract), Dust-Tex Service, 214 NLRB 398, 405 (1974) (same), enfd. 521 F.2d
404 (8th Cir. 1975) (Table). In this case, the Respondent has not shown that the parties had
exhausted the actual prospects for reaching an agreement either at the time of the December
13 impasse declaration or at the time of the unilateral implementation of a pension contribution
reduction on January 1.
For the reason discussed above, I conclude that the Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally reducing its contributions to the unit employees’ pension fund
on January 1, 2006, at a time when the Respondent had not bargained to a good faith impasse.
In addition, I conclude that the Respondent violated Section 8(a)(5) and (1) when, on December
13 and 20, 2005, it falsely declared impasse and announced its intention to unilaterally
implement a pension plan proposal.
B. Other Alleged Unilateral Changes
The complaint alleges that the Respondent violated its bargaining obligations under
Section 8(a)(5) and (1) of the Act by failing to give the Union notice and an opportunity to
bargain before making changes regarding the temporary transfer of employees among shifts,
the temporary transfer of employees among jobs, the assignment of unit work to process
technicians, the subcontracting of bargaining unit work including routine maintenance, and the
scheduled daily overtime for quality control inspectors. The complaint also alleges that the
Respondent violated Section 8(a)(5) and (1) by failing to give the Union notice and an
opportunity to bargain before reassigning unit work from unit employee Byers to nonunit
employees.
An employer violates Section 8(a)(5) and (1) of the Act when it unilaterally changes the
wages, hours, or other terms and conditions of employment of bargaining unit employees
without first providing the collective-bargaining representative with notice and a meaningful
opportunity to bargain. NLRB v. Katz, 369 U.S. 736 (1962); Ivy Steel & Wire, Inc., 346 NLRB
No. 41, slip op. at 16-17 (2006); Mercy Hospital of Buffalo, 311 NLRB 869, 873-74 (1993);
Associated Services for the Blind, 299 NLRB 1150, 1164-65 (1990). This is a requirement even
if at the time of the change the collective bargaining agreement between management and the
union has expired and a new agreement has not been completed. Litton Financial Printing Div.,
a Div. of Litton Business Systems, Inc. v. NLRB, 501 U.S. 190, 198 (1991). The Board has
made clear that in order to constitute a unilateral change that violates the Act, the employer's
action must be a material, substantial, and significant change that has a real impact on, or
causes a significant detriment to, the employees or their working conditions. Golden
Stevedoring Co., 335 NLRB 410, 415 (2001) (quoting Millard Processing Services, 310 NLRB
421, 425 (1993)); Outboard Marine Corp., 307 NLRB at 1339.
1. Transfers of Shifts and Jobs
The General Counsel alleges that, following the strike, the Respondent unlawfully
changed its practices regarding the temporary reassignment of employees between shifts and
between jobs. Based on the evidence discussed above regarding such reassignments, I find
that the General Counsel has failed to show that the Respondent changed those practices.
Regarding shift assignments, the record shows that, both before and after the strike, the
Respondent would sometimes meet staffing needs by temporarily reassigning employees
between shifts, as long as the employee consented to the change. Notice to the Union was not
required – either prior to or after the strike -- when such reassignments were made. It is true
that, at least for a time, temporary shift reassignments occurred more frequently after the strike
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than before, but the General Counsel failed to establish that this increase was the result of any
change in the Respondent’s practices relating to such reassignments. The record shows that,
following the strike, the Respondent was faced with staffing imbalances between shifts because
a significant number of unit employees had resigned. This meant that the need for temporary
reassignments between shifts arose more frequently immediately after the strike. The record
does not show that the increase in such reassignments was based on a change in the practice,
rather than on the application of the established practice to the unusual staffing imbalances that
followed the strike. On this record, the General Counsel has failed to meet its burden of
showing that the Respondent made a change to its practice regarding the temporary
reassignment of employees between shifts.
For the same reason, the General Counsel has also failed to show that the Respondent
changed its practice regarding the temporary reassignment of unit employees between jobs.
The evidence showed that such temporary reassignments were used by the Respondent both
before and after the strike. Temporary job reassignments occurred more frequently during the
period immediately following the strike. However, the evidence does not show that this
increased frequency resulted from a change in established practice, rather that from the
application of pre-strike standards to the altered staffing circumstances the Respondent faced
for a period of time following the strike.
The record does not show that the Respondent made changes relating to the temporary
reassignment of unit employees between shifts and between jobs. Therefore, the allegations
that the Respondent violated Section 8(a)(5) and (1) by making such changes should be
dismissed.
2. Use of Process Technicians
The General Counsel alleges that the Respondent violated Section 8(a)(5) and (1) by
assigning an increased amount of unit work to a group of nonunit employees known as process
technicians, without prior notice to the Union. The record fails to establish that the Respondent
changed its practices regarding the use of process technicians to perform unit work. Before the
strike, the Respondent used the process technicians to fill-in for unit employees who were on
break or vacation, or incapacitated by sickness or injury. After the strike, the Respondent
continued to use process technicians under those same circumstances. The record shows that
for a period of several months the frequency of such use increased substantially. However, as
with the temporary shift and job reassignments, the record fails to show that this increase in
frequency resulted from a change in the practice itself rather than from the consistent
application of the established practice to the unusual staffing circumstances that existed for a
period after the strike due to the resignations of unit employees.
The record fails to establish that the Respondent changed its practice regarding the use
of process technicians to perform unit work. Therefore, the allegation that the Respondent
violated Section 8(a)(5) and (1) by making such a change without bargaining should be
dismissed.
3. Subcontracting
The expired contract between the parties, as well as contracts that preceded it, explicitly
stated that the Respondent could subcontract bargaining unit work "only when . . . there are no
employees on layoff." There was no evidence that this provision had been interpreted to mean
something other than what it says, or that the subcontracting of unit work had ever been
permitted before the strike during a period when unit employees were on layoff. Despite this
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contractual prohibition, after the strike the Respondent began to subcontract work that
bargaining unit employees had previously been responsible for performing, even though
Kornides and Gruss were still on layoff. By taking such action without the Union’s consent, and
at a time when the parties had not negotiated a new contract or bargained to impasse, the
Respondent violated Section 8(a)(5) and (1) of the Act. See Register-Guard, 339 NLRB at 354;
RBE Electronics, 320 NLRB at 81; Bottom Line Enterprises, 302 NLRB at 374. Moreover, the
Respondent admits that the subcontracting of bargaining unit work is a mandatory subject for
purposes of collective bargaining. Therefore the Respondent violated Section 8(a)(5) and (1)
when its subcontracted bargaining unit work at a time when unit employees were on layoff,
without the Union’s consent or bargaining to a new contract or impasse.
In response to a number of the allegations of unlawful changes, the Respondent asserts
that its actions were permitted by the management rights provision contained in the expired
contract. This argument fails because the Board has held that, unlike other provisions in a
contract, the operation of a management rights provision does not survive the expiration of that
contract. As the Board recently reaffirmed, "A contractual reservation of management rights
does not extend beyond the expiration of the contract in the absence of evidence of the parties'
contrary intentions." Long Island Head Start Child Development Services, 345 NLRB No. 74,
slip op. at 1 (2005), enf. denied 460 F.3d 254 (2d Cir. 2006). In the instant case, there is no
evidence that the parties intended for the management rights provision in the expired contract to
extend beyond the expiration of the contract.41 Thus the Respondent’s argument that the
management rights clause in the expired contract authorized it to unilaterally depart from
existing terms and conditions of employment fails.
I conclude that the Respondent violated Section 8(a)(5) and (1) following the end of the
strike, by unilaterally beginning to subcontract bargaining unit work while employees were on
layoff, despite a contractual prohibition on subcontracting under such circumstances and without
obtaining the Union’s prior consent or bargaining to a new contract or good faith impasse.
4. Elimination of Overlap Meetings
When the strike ended, the Respondent eliminated its established practice of permitting
all quality inspectors the option of working 15 minutes of overtime at the end of their shifts in
order to participate in "overlap" meetings with personnel on the incoming shifts. The overlap
meetings had given quality inspectors the opportunity to earn approximately $1000 in extra
wages per year. The discontinuation of these meetings, and the elimination of the opportunity
for extra wages, had a real impact on employees and the Respondent admits that scheduled
daily overtime is a mandatory subject of bargaining. The Respondent made the change in its
established practice regarding the overlap meetings without giving the Union notice or an
opportunity to bargain. The Respondent argues that such a change was within its discretion
under the management rights provision. Even assuming that the management rights provision
would have permitted such a change during the life of the contract, this argument fails because
the operation of that provision did not survive the expiration of the contract. Long Island Head
Start Child Development Services, supra.

41 Even if the management rights provision in the parties’ expired contract were still in effect
it would not, under its own terms, authorize subcontracting when doing so conflicted with a
specific prohibition in the contract. The provision on management rights states that such rights
do not prevail where “expressly limited by other sections of this agreement.” See footnote 14,
supra. In this instance the Respondent’s management rights are expressly limited by the
contractual provision that prohibits subcontracting unit work while employees are on layoff.
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I conclude that the Respondent violated Section 8(a)(5) and (1) when it eliminated the
overlap meetings after the strike.
5. Byers’ Duties Changed
Following the strike, the Respondent permanently reassigned a number of duties to
nonunit employees that, for 2 or more years, had been performed by Byers, a bargaining unit
employee. These reassigned duties included ensuring the flow of raw materials in and out of
the facility, scheduling carriers, negotiating contracts or rates with carriers, developing
packaging, determining how to utilize floor space in the department, and inspecting the facility’s
buildings and grounds. In order to accomplish his pre-strike job assignments, Byers had
routinely worked 10 to 12 hours of overtime each week. As a consequence of the post-strike
changes, Byers has not had the opportunity to work any overtime since returning from the strike.
In addition, Byers was barred from the office area where he had previously worked, and told that
he could no longer use the computer or cell phone to which he had access prior to the strike.
Before reassigning Byers’ duties, the Respondent did not obtain the Union’s consent, or provide
the Union with notice and opportunity to bargain.
The reassignment of a significant portion of Byers duties to nonunit employees was "a
material, substantial, and significant change that ha[d] a real impact on, or cause[d] a significant
detriment" to Byers. Golden Stevedoring, supra. Not only did it substantially alter his job, but it
deprived him of the significant amounts of overtime pay he had been able to earn while
assigned those duties. The Respondent, while conceding that it changed Byers’ duties, argues
that the change was not a mandatory subject because the duties that were reassigned involved
nonunit work. I reject this argument for two reasons. First, the Respondent has not shown that
any of the work that was reassigned from Byers was nonunit work. Byers, a unit employee,
had been doing those tasks for a period of several years and, in some instances, longer. He
testified that he did not recall the Respondent ever telling him that the tasks were nonunit work
and Hillman testified that the reassigned duties had always been considered bargaining unit
work. At trial, not a single company official testified that the reassigned duties were nonunit
work prior to the strike and Nancy Hauser, who made the decision to reassign the duties, was
not even called by the Respondent as a witness. Indeed, the Respondent has not shown that,
prior to the strike, the Respondent had ever referred to those duties as nonunit work, or
assigned them to nonunit employees. At any rate, the duties had been assigned to Byers, a
unit employee, for several years and, under such circumstances, even if some of those duties
were previously nonunit work, they became bargaining unit work by dint of being regularly
assigned to Byers over a period of years. See Bozzuto’s, Inc., 275 NLRB 353, 355-56 (1985).
The only support that the Respondent offers for its claim that the reassigned duties were
nonunit work is the unit definition stipulated to by the parties. The Respondent argues that
since the unit definition states that the unit includes "all production and maintenance employees,
including truck drivers" and excludes "office clerical employees," the work reassigned from
Byers was not unit work. That argument is not persuasive. The unit definition talks about types
of employees, not specific duties. The stipulation does not define the types of work performed
by production and maintenance employees, and neither the stipulation, nor the collective
bargaining agreement, states that any of Byers’ reassigned duties were not the responsibility of
unit employees.
Second, even assuming, contrary to my conclusion, that all of the work that the
Respondent reassigned from Byers to nonunit employees was nonunit work, the Respondent
has still failed to establish that such reassignment would not be a mandatory subject for
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collective bargaining. The Respondent does not cite any authority for the proposition that an
employer need not bargain before reassigning nonunit duties that have customarily been
performed by unit employees. To the contrary, it is well established that once a specific job has
been included within the scope of a bargaining unit by consent of the parties, the employer
cannot unilaterally modify that position without first securing the consent of the union. The
Wackenhut Corporation, 345 NLRB No. 53, slip op. at 3-4 (2005). The Board has held that a
unilateral change in unit employees' terms or conditions of employment may violate the Act if it
is "a material, substantial, and significant change that has a real impact on, or causes a
significant detriment to, the employees or their working conditions." Golden Stevedoring Co.,
supra; see also Outboard Marine Corp., supra. It is clear that the reassignment here had such
an impact on Byers – dramatically changing his job duties, eliminating his longstanding overtime
opportunities, and ending his access to an office, computer and cell phone. This is true
regardless of whether the reassigned duties were unit work or not.
In its brief, the Respondent also makes reference to evidence that the Respondent told
Byers the change in his duties was necessitated by the "Sarbanes Oxley Law." Respondent’s
Brief at 30. However, the Respondent does not cite to any provisions of that law, or explain how
permitting Byers to continue performing his pre-strike duties could have violated it.
I conclude that the Respondent violated Section 8(a)(5) and (1) by permanently
reassigning duties from Byers to nonunit employees after the strike ended.
C. Information Requests
Paragraph 19(c) of the complaint, as amended, alleges that the Respondent violated the
Act by delaying the provision of updated seniority rosters from about late October 2005 until
January 19, 2006. The evidence showed that in late October 2005, the Union asked the
Respondent to provide an updated seniority list for unit employees. The record establishes that
the Respondent was capable of producing such a list with only a few minutes of effort.
Nevertheless, the Respondent told the Union that it could not provide the list. The Union
subsequently requested the same information orally on at least two occasions, and in writing on
one occasion. The Respondent did not supply the requested seniority information to the Union
until January 19, 2006 – approximately 3 months after it was first requested. Information about
unit employees, such as the seniority list at issue here, is presumptively relevant to bargaining.
See Quality Building Contractors, 342 NLRB 429, 431 (2004); Western Massachusetts Electric
Company, 234 NLRB 118, 118-19 (1978), enfd. 589 F.2d 42 (1st Cir. 1978). Indeed, the
Respondent does not dispute the Union’s entitlement to the seniority lists.
The Board has held that an employer's "unreasonable delay in furnishing . . .
information is as much of a violation of Section 8(a)(5) of the Act as a refusal to furnish the
information at all." Amersig Graphics, Inc., 334 NLRB 880, 885 (2001); see also Britt Metal
Processing, 322 NLRB 421, 425 (1996), affd. 134 F.3d 385 (11th Cir. 1997) (Table); Leland
Stanford Junior University, 307 NLRB 75, 80 (1992). The Respondent argues that its delay in
supplying the information was not significant enough to constitute a violation. I disagree.
"Absent evidence justifying an employer's delay in furnishing a union with relevant information,
such a delay will constitute a violation . . . inasmuch '[a]s the Union was entitled to the
information at the time it made its initial request, [and] it was [the employer's] duty to furnish it as
promptly as possible."' Woodland Clinic, 331 NLRB 735, 737 (2000), quoting Pennco, Inc., 212
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NLRB 677, 678 (1974). The Board evaluates the reasonableness of an employer's delay in
supplying information based on the complexity and extent of the information sought, its
availability and the difficulty in retrieving the information. West Penn Power Co., 339 NLRB 585,
587 (2003), enfd. in part and remanded 394 F.3d 233 (4th Cir. 2005); Samaritan Medical
Center, 319 NLRB 392, 398 (1995).
In this case the Respondent took approximately 3 months to provide the Union with
simple information that Lukacs, from whom the information was first requested, was capable of
making available with only a few minutes' effort. No reason is given by the Respondent to
justify the delay. Under such circumstances, the Board has consistently found delays of 3
months, or even shorter, to violate the Act. See Pan American Grain, 343 NLRB No. 47 (2004),
enfd. in relevant part, 432 F.3d 69 (1st Cir. 2005) (3-month delay unreasonable); Bundy Corp.,
292 NLRB 671 (1989) (delay of 2.5 months violates the Act); Woodland Clinic, 331 NLRB at
737(delay of 7 weeks violates the Act). The Respondent has not identified any cases in which
the Board has approved a delay of months where, as here, the information sought was simple
and could have been produced easily. Instead the Respondent’s ignores the oral requests
made by the Union beginning in late October, and argues that the delay was not unreasonable
because the first written request for the information was made on January 11, 2005. This
argument fails because requests for information need not be made in writing or in any particular
form in order to give rise to a duty to provide information. A.W. Schlesinger Geriatric Center,
304 NLRB 296, 297 fn.7 (1991). I conclude that the Union’s oral request for the seniority lists in
late October 2005 obligated the Respondent to produce the information, and that the
Respondent delayed unreasonably when it refused to produce that information until January 19,
2006.
I conclude that the Respondent violated Section 8(a)(5) and (1) of the Act by
unreasonably delaying the provision of the seniority lists requested by the Union beginning in
late October 2005.
D. Alleged 8(a)(1) Violations
1. Cooper Statement to Rellick
The General Counsel alleges that Cooper, a supervisor for purposes of the Act,
unlawfully threatened unit employee Rellick when, on about September 2, 2005, he stated that
Rellick "should leave" if he was not happy working for the Respondent and that "if I have to take
you upstairs to my office, [you will] be fired and . . . will not be able to collect unemployment."
An employer violates Section 8(a)(1) of the Act by threatening an employee with discharge for
engaging in protected activity. Bestway Trucking, Inc., 310 NLRB 651, 671 (1993), enfd. 22
F.3d 177 (7th Cir. 1994); Potential School for Exceptional Children, 282 NLRB 1087, 1090
(1987), enfd. 883 F.2d 560 (7th Cir. 1989); Steinerfilm, Inc., 255 NLRB 769, 769-70 (1981),
enfd. in relevant part 669 F.2d 845 (1st Cir. 1982). A statement violates Section 8(a)(1) if
"under all the circumstances" the remark "reasonably tends to restrain, coerce, or interfere with
the employee's rights guaranteed under the Act." GM Electrics, 323 NLRB 125, 127 (1997). For
the reasons discussed below, I conclude that the Cooper’s statement to Rellick violated the Act
under these standards.
It is clear that the Cooper was threatening that Rellick might be fired and denied
unemployment benefits, but it is a closer question whether the threat was related to protected
activities. The record shows that Cooper made the statement to Rellick in response to multiple
reports from co-workers and supervisors that Rellick was refusing to perform some of his duties
and was complaining that he hated his job and did not think the employees should have
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returned from the strike. If Cooper had told Rellick that the threat related exclusively to Rellick’s
reported refusal to perform some of his lawfully assigned tasks, a violation might not be
established. An employee’s selective refusal to perform some, but not all, of his or her lawfully
assigned tasks is not protected activity,42 and Cooper’s threat would not violate the Act if all it
would reasonably be expected to do was discourage Rellick or other employees from engaging
in such unprotected activity. However, Cooper did not tell Rellick that the threat of discharge
had anything to do with Rellick’s supposed refusal to perform duties. Indeed, when Rellick
specifically asked whether he was being accused of something, Cooper declined to clarify.
Given that Cooper prefaced the threat by stating that Rellick should leave if he was not happy
working for the Respondent, I believe that Rellick and others would reasonably see Cooper’s
threat as relating to Rellick’s statements that he hated his job and did not think the employees
should have returned from the strike. By discussing his view that the employees should have
continued the strike, Rellick was engaging in protected activity. His statement went beyond
"mere griping," both because it grew out of prior group activity and looked towards future group
action, such as a resumption of the work stoppage. See Asheville School, 347 NLRB No. 84,
slip op. at 5-6 (2006). Therefore, I conclude that Cooper’s threat unlawfully interfered with
protected activity.
For the reasons discussed above, I conclude that the Respondent interfered with
employees' protected activity in violation of Section 8(a)(1) when Cooper threatened that Rellick
would be terminated and denied unemployment compensation if he did not elect to take a
voluntary layoff. 43
2. Interrogation and Solicitation to Withdraw
Economic Support from the Union
The General Counsel alleges that Lukacs, the Respondent’s human resources manager,
violated the Section 8(a)(1) by interrogating J. Hauser about her support for the Union, and
soliciting J. Hauser to withdraw her economic support for the Union. The record shows that, in
October 2005, J. Hauser, a unit employee who worked in an entry-level position, went to
Lukacs' office for the purpose of determining how many vacation days she had left. J. Hauser
and Lukacs discussed that subject, then, while the two were alone in Lukacs' office, Lukacs
asked J. Hauser whether she was paying her union dues. When J. Hauser responded that she
was, in fact, paying union dues, Lukacs stated "Well, you don’t have to, because we have no
contract."
The Board has held that an interrogation is unlawful if, in light of the totality of the
circumstances, it reasonably tends to interfere with, restrain, or coerce employees in the
exercise of their Section 7 rights. Millard Refrigerated Services, Inc., 345 NLRB No. 95, slip op.
at 4-5 (2005); Matthews Readymix, Inc., 324 NLRB 1005, 1007 (1997), enfd. in part 165 F.3d 74
(D.C. Cir. 1999); Liquitane Corp., 298 NLRB 292, 292-93 (1990). Relevant factors include

42 “The Board and the courts have long held that the refusal by employees to perform some,
but not all, tasks lawfully assigned by the employer constitutes a partial strike, an activity that is
not protected under Sec. 7.” Paperworkers Local 5 (International Paper), 294 NLRB 1168,
1170-71 fn.14 (1989).
43 The General Counsel also alleges that an unlawful threat was made by Wareham. For
reasons discussed earlier, I found that the General Counsel failed to establish that Wareham
made the statement that is alleged to constitute a threat of demotion. See footnote 24, supra.
Since the General Counsel failed to establish that such a statement was made, the complaint
allegation regarding a threat of demotion by Wareham should be dismissed.
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whether proper assurances were given concerning the questioning, the background and timing
of the interrogation, the nature of the information sought, the identity of the questioner, and the
place and method of the interrogation. Millard Refrigerated, supra; Stoody Co., 320 NLRB 18,
18-19 (1995); Rossmore House Hotel, 269 NLRB 1176, 1177-1178 (1984), affd. sub nom. Hotel
Employees and Restaurant Employees Union Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
Under these standards, I conclude that Lukacs' statements to J. Hauser were coercive in
violation of the Act. The questioning took place out of the presence of other employees in the
office of a high ranking manager who had authority over employee benefits and disciplinary
actions. The person questioned was an entry-level employee who was not shown to have
voluntarily revealed that she was continuing to provide economic support, or any other type of
support, to the Union. She had come to Lukacs' office with a question about benefits, not to
discuss the Union or any activities related to the Union. Lukacs, unprompted by J. Hauser,
initiated questioning directed exclusively at J. Hauser’s union activity. See Structural
Composites Industries, 304 NLRB 729 (1991) (violation found where employee questioned was
not an open union adherent and the questioning was directed solely at the employee's union
activities). Lukacs made this inquiry without assuring J. Hauser either that any response would
not be held against her or that the questioning had a benign purpose. After J. Hauser answered
that she was paying Union dues, Lukacs told her that she did not have to pay them -- a
statement that, on this record, appears to have had no purpose other than to discourage J.
Hauser from continuing to provide such economic support to the Union. Under these
circumstances, I find that Lukacs' questioning of J. Hauser was coercive and would reasonably
tend to interfere with the exercise of employees' Section 7 rights. The situation presented here
is similar to the one in Creutz Plating Corp., where an employer’s general manager asked
whether an employee intended to continue paying union dues once the company stopped
deducting dues automatically, and when the employee responded that he would continue
paying union dues, the general manager stated that the employee "should spend it on himself."
172 NLRB 1, 6 and 13 (1968). The employer in that case was found to have violated Section
8(a)(1) both by engaging in a coercive interrogation and by urging the employee not to pay
union dues. Id. The same result is warranted under the similar facts presented by this case.
For the reasons discussed above, I find that the Respondent violated section 8(a)(1) in
October 2005 by coercively interrogating a unit employee about her payment of union dues, and
by soliciting the unit employee to stop paying union dues.
E. Allegation that Respondent Failed to Bargain in Good Faith
The complaint alleges that the Respondent failed and refused to bargain in good faith by
its overall conduct, including the implementation of unilateral changes to employees' terms and
conditions of employment following the strike, the false declaration of impasse, the unilateral
implementation of changes to employees’ pension benefits in the absence of impasse, and the
extended delay in furnishing the Union with information necessary to bargaining. "In
determining whether a party has violated its statutory obligation to bargain in good faith, the
Board examines the totality of the party's conduct, both at and away from the bargaining table."
Flying Foods, 345 NLRB No. 10, slip op. at 7 (2005). The Board "must decide whether a party
is engaging in hard, but lawful, bargaining to achieve an agreement that it considers desirable or
is unlawfully endeavoring to frustrate the possibility of arriving at any agreement." Id. The
conduct of both the employer and the union is considered. Id. An employer’s premature
declaration of impasse lends support to a finding of overall bad faith in bargaining. Grosvenor
Resort, 336 NLRB at 615; South Carolina Baptist Ministries, 310 NLRB at 157.
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By its actions in this case, the Respondent manifested a clear intent to avoid agreement
on a new contract. In an August 19 letter, after only a single negotiating session with Love – the
Union’s newly retained chief negotiator -- Hewitt began referring to the parties as being at
impasse. At the same time, the Respondent started to make increasingly harsh proposals on
the key subjects of pension benefits and wages. By the time the Respondent formally declared
impasse, on December 13, the Union was offering to agree to terms that met, or exceeded,
what the Respondent had earlier been seeking in its own proposals on pension benefits, wages,
and contract duration, but the Respondent now refused to agree to those terms, or even to
acknowledge the Union’s compromises. Moreover, although Hewitt had previously told the
Union that the Respondent’s position on the important issue of changes in pension benefits
could be altered if the 2005 withdrawal liability calculation showed an increase in that figure,
when the information showing such an increase became available, Hewitt did an about-face,
and stated that the increase only strengthened the Respondent’s resolve to make the pension
changes. Indeed, the Respondent declared impasse on December 13 before it had even
received the 2005 withdrawal liability figure, and then unilaterally implemented its pension
proposal without giving the Union a reasonable period of time to react to either the new
withdrawal figure or the Respondent’s changed position regarding the significance of that figure
for purposes of the negotiations. The Respondent subsequently received that calculation after
its declaration of impasse and before its January 1 "deadline" for implementation, but
nevertheless proceeded to unilaterally implement its pension proposal effective January 1
without once meeting with the Union about the new calculation, despite the Union’s standing
invitation to a meeting.
The Respondent’s intent to avoid an agreement is also shown by its insistence on a
false, and ultimately unreasonable, deadline for resolving the pension issue. Hewitt represented
to the Union that January 1, 2006, was an externally imposed deadline for making a change to
the pension contribution level for 2006, such that agreement had to be reached on the
contribution level prior to that date. When Hewitt declared that the parties were at impasse and
that the Respondent would unilaterally implement its pension proposal, he relied on the fact that
the parties could not reach agreement by that supposed deadline. The record makes clear,
however, that there was no such deadline. Indeed, the Respondent has not shown that Hewitt
had any basis at all for asserting to the Union that such a deadline existed. Continuing to insist
that an agreement on pension benefits be reached by January 1, 2006, became even more
unreasonable because the key information regarding the 2005 withdrawal liability was not made
available to the Union until, at the earliest, December 15.
The above factors are sufficient to show that the Respondent was not attempting, in
good faith, to reach an agreement. That conclusion is buttressed by consideration of other
behavior engaged in by the Respondent. For example, one of the Respondent’s bargaining
proposals was to eliminate the contractual prohibition on subcontracting unit work while there
were employees on layoff. When the Union did not agree to that change during negotiations,
the Respondent unilaterally commandeered the authority it was seeking -- beginning to
subcontract unit work while there were still employees on layoff. In addition, for about 3 months
during negotiations, the Respondent inexplicably, and unlawfully, refused to provide seniority
information that was requested by the Union and which could have been produced easily with
only a few minutes’ effort. As noted above, the evidence also showed that, during negotiations,
the Respondent made statements to employees that constituted an unlawful threat, a coercive
interrogation, and an unlawful solicitation to withdraw economic support from the Union. Finally,
the Respondent’s unwillingness to bargain in good faith with the Union was confirmed when,
after dealing with Local 1357 as the unit employees' representative for many months, the
Respondent took the frivolous position that Local 1357 was not even the legitimate bargaining
representative of the employees.
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For the reasons discussed above, I conclude that the Respondent, by its overall
conduct, has failed and refused to bargain in good faith with the Union as the exclusive
collective bargaining representative of unit employees in violation of Section 8(a)(5) and (1).
F. Alleged 8(a)(3) and (1) Violations
1. Delay in Reinstating Kornides and Gruss
The General Counsel alleges that the Respondent violated Section 8(a)(3) and (1) of the
Act when, following the Union’s unconditional offer to return to work, the Respondent refused to
reinstate former strikers Kornides and Gruss during the period from August 29, 2005, to April 3,
2006. Since at least the time of the Board’s decision in Laidlaw Corp., 171 NLRB 1366, 1368
(1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970), it has been
established that, "in the absence of a legitimate and substantial business justification, economic
strikers are entitled to immediate reinstatement to their prestrike jobs upon making an
unconditional offer to return to work." Supervalu, Inc., 347 NLRB No. 37, slip op. at 2 (2006),
citing Laidlaw Corp. supra. “One recognized legitimate and substantial business justification for
refusing to reinstate economic strikers is that their jobs are occupied by workers hired as
permanent replacements." Id. Although economic strikers who have been permanently
replaced are not entitled to immediate reinstatement, under Laidlaw the employer "remain[s]
obligated to keep their names on some type of nondiscriminatory roster until such time as
openings become available, whereupon the unreinstated striker could be recalled to his or her
former or substantially equivalent position." Peerless Pump Co., 345 NLRB No. 20, slip op. at 5
(2005).
Kornides and Gruss were both economic strikers for whom the Respondent hired
permanent replacement employees. Under the principles set forth above, they were, therefore,
not entitled to immediate reinstatement to their former positions as general finishers, but were
entitled to be recalled when openings occurred for those, or substantially equivalent, positions.
The record in this case does not establish that such openings occurred prior to April 2006. The
persons who were hired to permanently replace Kornides and Gruss were not shown to have
departed the company prior to April 2006. Nor does the record show that before Kornides and
Gruss were reinstated the Respondent hired any new employees for positions that either former
striker was qualified to perform. On this record, I conclude that the Respondent’s failure to
reinstate Kornides and Gruss prior to April 2006 was not shown to violate their Laidlaw rights.
I have also considered the evidence concerning Kornides and Gruss under the analytical
framework set forth in Wright Line for evaluating claims that an employer discriminated against
an employee on the basis of union or protected activity. 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 Corp., 462 U.S. 393 (1983). Under that framework, the General Counsel bears
the initial burden of showing that the Respondent’s decision not to reinstate Kornides and Gruss
prior to April 2006 was motivated, at least in part, by antiunion considerations. If the General
Counsel makes this showing, the burden shifts to the Company to demonstrate that it would
have taken these same actions even in the absence of the protected activity. Senior Citizens
Coordinating Council, 330 NLRB 1100, 1105 (2000). In the instant case, the evidence fails to
show that antiunion considerations were a motivating factor in the Respondent’s action with
respect to Kornides and Gruss. The record shows that both Kornides and Gruss participated in
the strike, but also shows that almost all of the other approximately 300 unit employees did so
as well. There was no evidence that either of the alleged discriminatees was a particularly
active or outspoken union supporter or that they engaged in any other protected activities that
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would cause the Respondent to single them out from among the returning strikers for
discriminatory treatment. Indeed, the uncontradicted evidence shows that Kornides and Gruss
were selected for replacement during the strike because they were the two employees in the
bargaining unit with the least seniority. The General Counsel does not assert, and the record
provides no basis for believing, that the Respondent did not need to hire the two permanent
replacement employees during the strike or that the decision to hire them was motivated by an
unlawful purpose. Nor does the evidence provide a basis for concluding that the Respondent’s
decision not to hire any new employees for general finisher positions, or substantially equivalent
jobs, between August 29, 2005, and April 3, 2005, was motivated by Kornides’ and Gruss’
participation in the strike. The evidence simply fails to give rise to an inference that the
Respondent delayed reinstating Kornides and Gruss because of the strike or any other
protected activity.
For the reasons discussed above, I conclude that the allegation that the Respondent
violated Section 8(a)(3) and (1) by refusing to reinstate Kornides and Gruss during the period
from August 29, 2005, until April 3, 2006, should be dismissed.44
2. Demotion of Grazier
The General Counsel also alleges that the Respondent violated Section 8(a)(3) and (1)
by discriminatorily demoting Grazier from his position as a group leader in October or November
2005. Grazier was shown to have been active in union activities. He engaged in
confrontational behavior during the strike and was one of six employees who the Respondent
told the Union had engaged in picket-line misconduct. Grazier ceased to be a group leader, and
lost the 20-cent pay differential for that designation, in October or November of 2005, after he
told Wareham, his supervisor, "you can stick this lead man 20 cents up your ass." Shortly after
Grazier made that statement, Wareham received a report from one of Grazier’s co-workers that
Grazier had recounted telling Wareham to take the lead man designation and "shove it." For
the reasons discussed below, I conclude that the General Counsel has failed to establish a
violation.
The question of whether Grazier was discriminatorily demoted turns, at the outset, on
whether the Respondent actually demoted him, or whether Grazier himself resigned from the
group leader designation. U.S. Plastics Corp., 213 NLRB 323, 331 (1974) (Whether employee
"was discriminated against turns, first, on whether he was discharged or quit.") I conclude that
the Respondent reasonably understood Grazier to be resigning from the group leader
designation when he told Wareham he could "stick this lead man 20 cents up [his] ass." Id.
(Employee was not discharged, but quit, when he stated that the employer could "take this
[obscenity] job and shove it up his [obscenity]").45 Indeed, Grazier testified at trial, but did not
deny that he meant the statement to Wareham as a resignation from his group leader
designation. Wareham, on the other hand, testified that when he discontinued Grazier’s lead
man designation he was not disciplining Grazier, but rather effectuating Grazier’s stated intent
to resign that designation. Grazier never complained to Wareham about the lead man
designation being discontinued and did not file a grievance on the subject. Based on this

44 For reasons discussed in the remedy section of this decision, I conclude that although the
delay in reinstating Kornides and Gruss was not shown to be discriminatory, both of those
employees are entitled to relief based on the Respondent’s failure to reinstate them before
beginning, in violation of the expired contract and Section 8(a)(5), to subcontract bargaining unit
work.
45 The decision in U.S. Plastics Corp., does not reveal what the obscenities were.
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record, I conclude that the General Counsel has not crossed the initial threshold of showing that
Grazier ceased to be lead man because he was demoted, rather than because he quit those
duties.
I recognize that Grazier resigned in reaction to statements by Wareham that, while they
were not alleged as violations, may have tended to interfere with protected activity. Specifically,
the record shows that after Grazier became loud during a discussion with a co-worker regarding
negotiations and the union contract, Wareham told Grazier to "keep his opinions to himself."
Wareham also told Grazier, "If you are going to be loud and spouting off, at least be right . . . .
[Y]ou are lead man, you know, I expect you to lead in the right direction.” It was in reaction to
these statements that Grazier resigned his duties as group leader. However, under the
applicable legal standards, I conclude that Wareham’s behavior towards Grazier did not amount
to a constructive discharge or demotion of Grazier from his group leader designation. The
Board has held that a threat to restrict protected activity, or an unfair accusation relating to an
employee’s protected activity, is "'not the equivalent of the actual imposition of unlawful
conditions of employment; it does not in any meaningful sense render the conditions of
employment so intolerable as to compel an employee to leave his job.'" Easter Seals
Connecticut, Inc., 345 NLRB No. 52, slip op. at 13 (2005), quoting Central Casket Co., 225
NLRB 362, 363 (1976); see also Project Aid, 240 NLRB 743, 750 (1979). In this instance,
Wareham did not even threaten that discipline would follow if Grazier failed to refrain from the
types of actions that Wareham was criticizing. Prior to Grazier resigning his group leader
designation, Wareham did not alter Grazier’s work station or work conditions in a way that would
have interfered with Grazier’s continued ability to engage in protected activity. Grazier did not
testify that he found himself in a position where he believed he would be unable to freely
continue his protected activities unless he resigned from the group leader designation.
For the reasons discussed above, I conclude that the allegation that the Respondent
violated Section 8(a)(3) and (1) by discriminatorily demoting Grazier from his position as group
leader in October or November 2005 should be dismissed.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. The Union (Local 1357) is a labor organization within the meaning of Section 2(5) and
is the exclusive collective bargaining representative of unit employees at the Respondent’s
Pennsylvania plant.
3. The Respondent violated Section 8(a)(5) and (1) of the Act: on January 1, 2006, by
unilaterally reducing its contributions to the unit employees’ pension fund at a time when the
Respondent had not bargained to a good faith impasse; on December 13 and 20, 2005, by
falsely declaring impasse and announcing its intention to unilaterally implement a pension plan
proposal; after the strike ended, by unilaterally beginning to subcontract normal bargaining unit
work while employees were on layoff, despite a contractual prohibition on subcontracting under
such circumstances and without obtaining the Union’s prior consent or bargaining to a new
contract or good faith impasse; after the strike, by unilaterally eliminating its established practice
regarding overlap meetings for quality inspectors; after the strike, by permanently reassigning
duties from Byers to nonunit employees; by unreasonably delaying the provision of the seniority
lists requested by the Union from October 2005 until January 19, 2006; and, through its overall
conduct, by failing and refusing to bargain in good faith with the Union as the exclusive
collective bargaining representative of unit employees.
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4. The Respondent violated Section 8(a)(1) of the Act: in October 2005, by coercively
interrogating a unit employee about her payment of union dues, and by soliciting the unit
employee to stop paying union dues; and, shortly after the strike ended, when Cooper
responded to protected activity by Rellick by threatening that Rellick would be terminated and
denied unemployment compensation if he did not elect to take a voluntary layoff.
5. I conclude that the record does not establish the Respondent committed the other
violations alleged.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. In particular, I recommend that the Respondent be ordered to
place in effect all pension benefit terms required by the contract that expired on January 31,
2005, and maintain those terms in effect until the parties have bargained to agreement or a valid
impasse, or the Union has consented to changes. I recommend that the Respondent be
ordered to make whole the unit employees and former unit employees for any loss of benefits
they suffered as a result of the Respondent’s unlawful alteration of their pension benefits, as set
forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with
interest as set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987). In addition, I
recommend that the Respondent be ordered to reimburse unit employees for any expenses
resulting from the Respondent’s unlawful changes to those pension benefits and make all
contributions to the LIUNA fund that have been, or will be, required under the terms of the
expired bargaining agreement, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), affd. 661 F.2d 940 (9th Cir. 1981), such amounts to be computed in the manner set forth
in Ogle Protections Service, supra, with interest as prescribed in New Horizons for the
Retarded, supra.
In addition, I recommend that the Respondent be required to make employees whole for
any loss of earnings or other benefits that resulted from the other changes the Respondent
made in violation of its bargaining obligations under Section 8(a)(5) and (1). Such amounts are
to be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
computed in New Horizons for the Retarded, supra. This includes making Byers whole for
losses, including the loss of overtime compensation, that he suffered as a result of the
Respondent’s unlawful reassignment of many of his duties to nonunit employees. Make whole
relief should also be provided to remedy the losses that quality inspectors suffered as a result of
the Respondent’s unlawful discontinuation of the daily overlap meetings for which those
employees had received additional compensation. Make whole relief should also be provided
to employees who suffered losses as a result of the Respondent’s unlawful subcontracting of
bargaining unit work. In particular, such a remedy is warranted for Kornides and Gruss. Since
the Respondent was contractually required to recall Kornides and Gruss from layoff before
initiating such subcontracting, I conclude that Kornides and Gruss are entitled to a make-whole
remedy covering the period starting when the Respondent first subcontracted bargaining unit
work after the strike and ending when the Respondent reinstated those employees. St. Regis
Hotel, 339 NLRB No. 96, slip op. at 2-3 (2003), 2003 WL 21713024, *3 (NLRB) (remedy
includes make whole relief for employees who were on layoff as a result of the employer
subcontracting work in violation of Section 8(a)(5) and (1)). Therefore, the Respondent must be
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required to reimburse Kornides and Gruss for any loss of earnings and other benefits that those
employees suffered due to the Respondent’s unlawful conduct during such period, to be
computed in the manner prescribed in F.W. Woolworth Co., supra, with interest as prescribed in
New Horizons for the Retarded, supra.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended Order.46
ORDER
The Respondent, Airo Die Casting, Inc. (a subsidiary of Leggett & Platt, Incorporated),
Loyalhanna, Pennsylvania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Falsely declaring impasse and/or announcing its intention to unilaterally implement its
pension proposal, or any other contract proposal, at a time when the parties have not reached a
new contract or a valid, good faith, impasse in bargaining.
(b) Unilaterally implementing its pension proposal, or any other contract proposal, at a
time when the parties have not reached a new contract or a valid, good faith, impasse in
bargaining.
(c) Unilaterally reducing its contributions to the employees’ pension fund at a time when
the parties have not reached a new contract or a valid, good faith, impasse in bargaining,
(d) Unilaterally subcontracting bargaining unit work while employees are on layoff
without bargaining to a new contract or a valid, good faith, impasse in bargaining.
(e) Unilaterally discontinuing the established, pre-strike, practice regarding overlap
meetings for quality inspectors without providing the Union with notice and an opportunity to
bargain.
(f) Permanently reassigning duties from any unit employee to nonunit employees,
without providing the Union with notice and an opportunity to bargain.
(g) Unreasonably delaying the provision of information requested by the Union that is
relevant and necessary to the Union’s performance of its duties as collective bargaining
representative.
(h) Failing and refusing, through its overall conduct, to bargain collectively and in good
faith with the Union as the exclusive collecting bargaining representative of unit employees.
(i) Coercively interrogating any unit employee about union support or union activities,
and/or attempting to coerce any unit employee to withdraw support from the Union.

46 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(j) Threatening that any unit employee will be terminated and denied unemployment
compensation as a result of that employee engaging in protected activity.
(k) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Restore, honor, and continue employees’ pension benefit terms as they existed
under the collective bargaining agreement that expired on January 31, 2005, and maintain those
terms until such time as the parties complete a new agreement, good-faith bargaining leads to a
valid impasse, or the Union agrees to changes.
(b) Make whole employees and former employees for any and all losses of benefits
incurred as a result of the Respondent’s unlawful failure to continue providing the pension
benefit terms required by the collective bargaining agreement that expired on January 31, 2005,
with interest, as set forth in the remedy section of this decision.
(c) Make all contributions to the LIUNA pension fund that are required under the terms of
the collective bargaining agreement that expired on January 31, 2005, including all required
amounts that the Respondent has failed to contribute since its false declaration of impasse on
December 13, 2005, as set forth in the remedy section of this decision.
(d) Make whole employees and former employees for any and all losses of wages and
other benefits that occurred as a result of the Respondent’s unlawful subcontracting, with
interest, as set forth in the remedy section of this decision.
(e) Reinstitute the practice with respect to overlap meetings for quality inspectors as that
practice existed immediately prior to the strike.
(f) Make whole employees and former employees for any and all losses of wages and
benefits incurred as a result of the Respondent’s unlawful discontinuation of the overlap
meetings for quality inspectors, as set forth in the remedy section of this decision.
(g) Restore to unit employee Edward Byers all duties that were unlawfully reassigned
from him after the strike, and restore to him all conditions of employment that accompanied the
performance of those duties, including the conditions relating to work station, equipment, and
overtime.
(h) Make whole Edward Byers for any and all losses of wages and benefits incurred as a
result of the Respondent’s unlawful reassignment of duties from him to nonunit employees, with
interest, as set forth in the remedy section of this decision.
(i) On request, bargain collectively and in good faith with Factory Workers Laborers’
Local Union 1357 a/w Laborers’ International Union of North America, AFL, CIO, as the
exclusive representative of the employees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is reached, embody the understanding
in a signed agreement:
All production and maintenance employees, including truck drivers of the
Company employed at its Pennsylvania plant, but excluding all office clerical
employees, guards, watchmen and supervisors as defined in the Act.
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(j) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(k) Within 14 days after service by the Region, post at its facility in Loyalhanna,
Pennsylvania, copies of the attached notice marked "Appendix."47 Copies of the notice, on
forms provided by the Regional Director for Region Six, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time during the period beginning on August 29, 2005.
(l) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. December 20, 2006
____________________
PAUL BOGAS
Administrative Law Judge

47 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 National 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.”
JD–86–06
Loyalhanna, PA
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT falsely declare impasse or announce an intention to unilaterally implement our
pension proposal, or any other contract proposal, at a time when the parties are not at a valid,
good faith, impasse in bargaining.
WE WILL NOT unilaterally implement our pension proposal, or any other contract proposal, at a
time when the parties are not at a valid, good faith, impasse in bargaining.
WE WILL NOT unilaterally reduce our contributions to your pension fund at a time when the
parties are not at a valid, good faith, impasse in bargaining.
WE WILL NOT unilaterally subcontract bargaining unit work while any employees are on layoff
without bargaining to a new contract or good faith impasse.
WE WILL NOT unilaterally discontinue the pre-strike practice regarding overlap meetings for
quality inspectors without providing the Union with notice and an opportunity to bargain.
WE WILL NOT permanently reassign duties from you to nonunit employees, without providing
the Union with notice and an opportunity to bargain.
WE WILL NOT unreasonably delay providing information requested by the Union that is relevant
and necessary to the Union’s performance of its duties as collective bargaining representative.
WE WILL NOT fail and refuse, through our overall conduct, to bargain collectively and in good
faith with the Union as the exclusive collecting bargaining representative of unit employees.
WE WILL NOT coercively interrogate you about union support or union activities, and/or attempt
to coerce you to withdraw support from the Union.
WE WILL NOT threaten that you will be terminated and denied unemployment compensation as
a result of your engaging in protected activity.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
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WE WILL restore, honor, and continue your pension benefit terms as set forth in the collective
bargaining agreement that expired on January 31, 2005, and maintain those terms until such
time as the parties complete a new agreement, good-faith bargaining leads to a valid impasse,
or the Union agrees to changes.
WE WILL make you whole for any and all losses of benefits that you incurred as a result of our
unlawful failure to provide the pension benefit terms contained in the collective bargaining
agreement that expired on January 31, 2005.
WE WILL make all contributions to your pension fund that are required under the terms of the
collective bargaining agreement that expired on January 31, 2005, including all amounts that we
unlawfully failed to contribute since falsely declaring impasse on December 13, 2005.
WE WILL make you whole for any and all losses of wages and/or other benefits that occurred
as a result of our unlawful subcontracting.
WE WILL reinstate the practice with respect to overlap meetings for quality inspectors as that
practice existed immediately prior to the strike.
WE WILL make you whole for any loss of wages and benefits incurred as a result of our
unlawful discontinuation of the overlap meetings for quality inspectors.
WE WILL restore to unit employee Edward Byers all duties that were unlawfully reassigned from
him after the strike, and restore to him the conditions of employment that had accompanied
those duties, including the conditions relating to work station, equipment, and overtime.
WE WILL make Byers whole for any and all losses of wages and benefits incurred as a result of
our unlawful reassignment of duties from him to nonunit employees.
WE WILL, on request, bargain collectively and in good faith with Factory Workers Laborers’
Local Union 1357 a/w Laborers’ International Union of North America, AFL, CIO, as the
exclusive representative of the employees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is reached, embody the understanding
in a signed agreement:
All production and maintenance employees, including truck drivers of the
Company employed at its Pennsylvania plant, but excluding all office clerical
employees, guards, watchmen and supervisors as defined in the Act.
(Employer)
Dated By
(Representative) (Title)