Airo Die Casting, Inc.,06-CA-34853

National Labor Relations Board - Board Decisions

Apr 30, 2009

354 N.L.R.B. 92 (N.L.R.B. 2009)

354 NLRB No. 8
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the
Executive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Airo Die Casting, Inc., A Subsidiary of Leggett &
Platt, Incorporated and John A. Kornides, and
Elizabeth P. Gruss and Factory Workers
Laborers’ Local Union 1357 a/w Laborers’
International Union of North America.1 Cases
6–CA–34937, 6–CA–34853, and 6–CA-34854
April 29, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On December 20, 2006, Administrative Law Judge
Paul Bogas issued the attached decision. The Respondent
filed exceptions with supporting argument, and the
General Counsel filed cross-exceptions and a brief in
support. The Respondent filed an answering brief to the
General Counsel’s cross-exceptions.
The National Labor Relations Board2 has considered
the decision and the record in light of the exceptions,
cross-exceptions, and briefs and has decided to affirm
the judge’s rulings, findings,3 and conclusions only to
the extent consistent with this Decision.
In light of the parties’ settlement agreement,4 only two
complaint allegations remain before the Board. The first
alleges that the Respondent violated Section 8(a)(3) and
(1) of the Act by failing to immediately reinstate
employees John Kornides and Elizabeth Gruss following

1 We have amended the caption to reflect the disaffiliation of the
Laborers’ International Union of North America from the AFL–CIO
effective June 1, 2006.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members
Kirsanow and Walsh on December 31, 2007. Pursuant to this
delegation, Chairman Liebman and Board Member Schaumber
constitute a quorum of the three-member group. As a quorum, they
have the authority to issue decisions and orders in unfair labor practice
and representation cases. See Section 3(b) of the Act.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
4 Subsequent to the judge’s decision in this case, the parties entered
into a settlement agreement in Cases 6–CA–34961, 6–CA–34976, 6–
CA–35019, and 6–CA–35084. On December 8, 2008, the Board
granted the parties’ joint motion to partially withdraw the Respondent’s
exceptions, to withdraw the General Counsel’s exceptions, and to sever
and remand Cases 6–CA–34961, 6–CA–34976, 6–CA–35019, and 6–
CA–35084 to the Regional Director for further appropriate action.
a unit-wide economic strike. In the absence of
exceptions, we adopt the judge’s dismissal of that
allegation.
The second remaining allegation asserts that the
Respondent violated Section 8(a)(5) and (1) of the Act
by subcontracting bargaining unit work without first
notifying and bargaining with the Union.5 The judge
found this violation, but we reverse.
I. FACTS
The Respondent manufactures aluminum die castings
at its facility in Pennsylvania. In 1976, 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 and maintenance workers at the
Respondent’s Pennsylvania facility. The Respondent
and Local 1451 entered into their initial bargaining
agreement in July 1976 and subsequently executed a
number of successor agreements, the most recent of
which was effective from January 1, 2002 to January 31,
2005.
The Union and the Respondent began negotiations for
a new agreement in early December 2004. After the
negotiations failed to yield an agreement, the employees
commenced an economic strike on June 13, 2005. On
August 19, 2005, the Union notified the Respondent that
the employees were willing to return to work under the
terms and conditions of the expired agreement. The
Respondent accepted the Union’s offer and the
employees returned to work on August 29, 2005.
On August 29, 2005, employees John Kornides and
Elizabeth Gruss attempted to return to work but were
informed that they had been permanently replaced during
the strike. Because their jobs had been filled, they were
placed on a preferential hiring list.
After the employees had returned to work, the
Respondent subcontracted certain bargaining unit
maintenance work.6 The Respondent made the decision

5 In its exceptions, the Respondent argues that the issue of whether
its subcontracting of work violated the parties’ contract should have
been deferred to arbitration under Collyer Insulated Wire, 192 NLRB
837 (1971). We disagree. The Respondent failed to raise deferral as
an affirmative defense in its answer to the complaint and failed to raise
the issue subsequently at the hearing or in its brief to the judge. We
therefore find that the Respondent waived that argument and do not
pass on the merits of the issue. Wisconsin Bell, Inc. 346 NLRB 62, 64
fn.8 (2005)
6 In February 2006, the Respondent contacted Kornides and Gruss to
inquire whether they were qualified to perform certain of the
maintenance work, but determined that neither individual was qualified
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
to subcontract this work without providing the Union
with notice or an opportunity to bargain over the issue.
The judge found that the issue of whether the
Respondent violated Section 8(a)(5) and (1) of the Act
by failing to give the Union notice and an opportunity to
bargain over its decision to subcontract maintenance
work turned on the subcontracting clause contained in
the parties’ expired contract. There are no exceptions to
the judge’s finding that the subcontracting clause was
applicable.7 The subcontracting clause stated that the
Respondent “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.” Applying this clause, the judge found that the
Respondent’s conduct violated the terms of the contract
because Kornides and Gruss were “on layoff” when the
Respondent began subcontracting work.
II. ANALYSIS
A.
In contrast to the judge, we find that the Respondent’s
decision to subcontract bargaining unit work at a time
when two former economic strikers were on the recall
list did not violate the express terms of the parties’
agreement which prohibited subcontracting when
employees were on layoff. In turn, we find that the
Respondent was privileged to subcontract without
bargaining with the Union because the parties’ contract
contained a clear and unmistakable waiver of the
Union’s right to bargain over that issue in these
circumstances.
There is no evidence to support a finding that
Kornides and Gruss were on layoff at the time that the
Respondent subcontracted the maintenance work.
Rather, the evidence clearly establishes that Kornides
and Gruss had been permanently replaced, rather than
laid off, during the strike. Cf. Bio-Science Laboratories,
209 NLRB 796 (1974) (finding that employer did not
violate the Act by refusing to treat economic strikers
who had been permanently replaced as if they had been
laid off). Accordingly, we find that the judge erred in
determining that the Respondent’s use of subcontractors,
at a time when two permanently replaced employees
were on the recall list, violated the express terms of the
parties’ collective-bargaining agreement, which

to perform it. Approximately 2 months later, Kornides and Gruss were
recalled and returned to work.
7 Chairman Liebman observes that contractual waivers of bargaining
rights typically do not survive the agreement in which they are
included, absent evidence of the parties’ intentions to the contrary.
Register-Guard, 339 NLRB 353, 355–356 (2003).
prohibited subcontracting only when employees were on
layoff.8
B.
We further find that the Respondent was privileged to
unilaterally subcontract bargaining unit work—a
mandatory subject of bargaining—because the Union
clearly and unmistakably waived its statutory right to
bargain over that issue. In evaluating whether there has
been a clear and unmistakable waiver, the Board
considers the precise wording of the relevant contract
provisions. Provena St. Joseph Medical Center, 350
NLRB 808 (2007).9 In order to find that the contract
language meets the “clear and unmistakable” waiver
standard, “the contract language must be specific, or it
must be shown that the matter sought to be waived was
fully discussed and consciously explored and that the
waiving party thereupon consciously yielded its interest
in the matter.” Trojan Yacht, 319 NLRB 741, 742
(1995) (citing Angelus Block Co., 250 NLRB 868, 877
(1980)).
Here, the parties’ agreement expressly permits the
Respondent to subcontract bargaining unit work “only
when such subcontracting does not result in a layoff or
[when] there are no employees on layoff.”10 We find
that the express language of the parties’ contract should
be construed as a clear and unmistakable waiver of the
Union’s right to bargain over the Respondent’s decision
to subcontract bargaining unit work when no employees
are on layoff or laid off as a result.11
Accordingly, we find that the Respondent has not
violated Section 8(a)(5) and (1) of the Act by failing to
notify and bargaining with the Union before
subcontracting bargaining unit work.

8 It is uncontested that the subcontracting did not result in any
layoffs.
9 Member Schaumber previously has rejected the clear-and-
unmistakable waiver standard in favor of a “contract coverage”
analysis in evaluating relevant contract provisions. See California
Offset Printers, 349 NLRB 732 (2007) (dissenting opinion). However,
he recognizes that Provena is current Board law, and he applies it in
the present case for institutional reasons. Moreover, he concludes that
application of the contract-coverage test here would lead to the same
result. See Baptist Hospital of East Tennessee, 351 NLRB 71, 72
(2007).
10 The same subcontracting language has appeared in every prior
agreement since the parties’ initial agreement in 1978.
11 Chairman Liebman observes that the waiver issue in cases like
this one turns on the particular contract language involved. Cf. Public
Service Co., 312 NLRB 459 (1993) (finding that a contract clause
narrowly drawn to prohibit subcontracting in limited circumstances,
without an affirmative broad statement of the right to subcontract in
other situations, did not constitute a clear and unmistakable waiver of
the employer’s duty to bargain over subcontracting generally).
AIRO DIE CASTING, INC. 3
ORDER
The complaint is dismissed.
Dated, Washington, D.C. April 29, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Gerald McKinney, Esq. for the General Counsel..
Timothy G. Hewitt, Esq. and David Cofer, Esq. of Latrobe,
Pennsylvania, for the Respondent.
George H. Love, Jr., Esq. of 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, November 22, December 7, 2005, January 17, 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 Regional Director for Region 6 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 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

1 The trial amendment, which concerned only par. 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).”
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 nonretail 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 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

2 Lukacs has responsibility over payroll and benefits matters. She
also has the authority to hire and discipline employees.
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
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
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

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 (GC Exh. 1(JJ), par. 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. (Tr. at pp. 11, 12, 19; GC. Br. at 9.)
Similarly, the Respondent’s Brief makes reference to the most recent
contract expiring on January 31, 2005. (R Br. 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 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.
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.”
(GC Exh. 42, at pp. 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. (Tr. pp. 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 See Terracon, Inc., 339 NLRB
221, 223 (2003) (union may become recognized bargaining

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. 884–885. 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–
882, 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.
AIRO DIE CASTING, INC. 5
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. 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.
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.

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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
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 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 a 3-percent increase 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

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.
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.
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
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

14 The management-rights provision in the most recent contract (GC
Exh. 2, art. 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.
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.
AIRO DIE CASTING, INC. 7
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
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

15 Ray testified confidently, clearly, and with apparent candor. He
has been counsel to the LIUNA fund for nearly three 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 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
$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 poststrike 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 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

testified credibly that the fact that the LIUNA plan had unfunded
vested liabilities did not mean that it was underfunded.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
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

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.
new proposal regarding pension benefits, the Respondent
stated:
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

The record shows that disaffiliation occurred no later than December
31, 2005.
AIRO DIE CASTING, INC. 9
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 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 Exh. 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

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.
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 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

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
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 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 setup 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

20 According to Ray, the LIUNA fund has declined to accept the
Respondent’s reduced pension contributions.
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 concerni.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 footnote
16 supra (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 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

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.
22 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
AIRO DIE CASTING, INC. 11
Love, Teague, and Lukacs testified regarding their personal
views as to whether impasse existed. Love testified that
impasse did not exist. (Tr. 460, 515–516.) 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. 872–873.) 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.

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.
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.
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 she generally was not included in the
prenegotiation 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
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.
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 2
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 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

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
AIRO DIE CASTING, INC. 13
On an occasion in late October or early November 2005,
Grazier, by his own account, “got a little loud” during a
conversation with a coworker 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.
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.

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 ll.1–5 with Tr. 412 ll. 4–12.
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 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

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.” (R.Br. 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. 370–371.) Byers testified that he did not believe he was
a managerial or supervisory employee (Tr. 381–382), 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. 379–380.)
26 The Respondent admits that Battaglia and N. Hauser are
supervisors and agents of the Respondent for purposes of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
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 coworkers 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. 771–772 (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. 767–769 (Cooper testifies to multiple
responses by Rellick during the conversation.) with Tr. 772 (Cooper
testifies that Rellick “never replied . . . on any part of it.”). Based on
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

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 three-shift schedule. The
first shift, also known as daylight shift, begins at 7 a.m. and ends at 3
p.m. The second shift, which is also referred to as the afternoon shift
or swing shift, begins at 3 p.m. and ends at 11 p.m. The third shift, also
known as the midnight shift or graveyard shift, starts at 11 p.m. and
ends at 7a.m.
AIRO DIE CASTING, INC. 15
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 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 prestrike standards for nonbid 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

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. 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.
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.
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 Br. at 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
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 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

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.
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 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

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
poststrike 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.
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.”
(R.Br.. 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.
AIRO DIE CASTING, INC. 17
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 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,

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.
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 nonbargaining 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 nonbargaining 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.
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 its
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)

37 See fn. 1, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
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 1229, 1237 (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,
1097–1098 (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 & Co., 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

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.”)
of the negotiations, the importance of the issue or issues as to
which there is 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” by the Respondent. (Tr. 557.) 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 reexamine 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
AIRO DIE CASTING, INC. 19
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 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

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).
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 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. (R. Br. 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 deadlock breaking
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
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
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

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 1404 (2004) (corrected
from No. 137). At any rate, that exception does not apply to the
Respondent’s January 1 “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.
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 impasse not valid when motivated by employer’s
AIRO DIE CASTING, INC. 21
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
404, 419–420 (2006); Mercy Hospital of Buffalo, 311 NLRB
869, 873–874 (1993); Associated Services for the Blind, 299
NLRB 1150, 1164–1165 (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
Division 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 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
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 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 973 (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.

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 fn. 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.
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.
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
AIRO DIE CASTING, INC. 23
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, 355–356 (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 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
Corp., 345 NLRB 850, 852 (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.” (R. Br.at 30.)
However, the Respondent does not cite to any provisions of
that law, or explain how permitting Byers to continue
performing his prestrike 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 Co., 234
NLRB 118, 118–119 (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., 21 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
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 318 (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,
769–770 (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 coworkers 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 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, Inc., 347 NLRB 877, 881–882 (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.”

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, 1170–1171 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 fn. 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.
AIRO DIE CASTING, INC. 25
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, 345
NLRB 1143, 1146 (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, 292–293 (1990).
Relevant factors include 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 101, 107 (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.
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
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.
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 404, 405 (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 371, 375 (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 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
AIRO DIE CASTING, INC. 27
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 coworkers 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

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.
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 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 836, 842 (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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
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.
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) (not reported in Board volume), 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 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

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.
AIRO DIE CASTING, INC. 29
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.
(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.
(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.”46 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

46 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
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 prestrike 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.
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.
AIRO DIE CASTING, INC.