Harvard Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1989

294 N.L.R.B. 1102 (N.L.R.B. 1989)

1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Elastic Stop Nut Division of Harvard Industries,
Inc. and Local 726, United Automobile, Aero-
space and Agricultural Implement Workers of
America . Cases 22-CA-14033 and 22-CA-
14073
June 13, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, HIGGINS, AND
DEVANEY
On March 5, 1987, Administrative Law Judge
Raymond P. Green issued the attached decision.
The Respondent filed exceptions and a supporting
brief,' and the Charging Party and the General
Counsel filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended
Order.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Elastic Stop
Nut Division of Harvard Industries, Inc., Union,
New Jersey, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
I The Respondent has requested oral argument The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Car 1951)
We have carefully examined the record and find no basis for reversing
the findings
3 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 US C § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
The General Counsel has requested a visitatorial clause Under the cir-
cumstances of this case, we find it unnecessary to include such a clause
See Cherokee Marine Terminal, 287 NLRB 1080 (1988)
Mitchell A. Schley and John Gibbons Esqs., for the Gener-
al Counsel.
Allan Dabrow, Donald Bush, David M. Schloss, and David
McCarthy, Esqs. (Pechner, Dorfman , Wolffe, Rounick &
Cabot), of Philadelphia , Pennsylvania on behalf of the
Respondent
Thomas J. Giblin , Esq., Stephen H. Gelb, Esq ., of Cran-
ford , New Jersey , on behalf of the Charging Party.
DECISION
STATEMENT OF THE CASE
Raymond P Green, Administrative Law Judge. These
consolidated cases were heard by me on various days in
March through August 1986.
The charge in Case 22-CA-14033 was filed by the
Union on 19 September 1985 and was amended on 25
November 1985. The charge in Case 22-CA-14073 was
filed by the Union on 11 October 1985. Thereafter the
Regional Director of Region 22 of the National Labor
Relations Board issued a consolidated complaint and
notice of hearing on 26 November 1985. In substance
this alleged:
1. That for many years the Union has represented cer-
tain employees of the Elastic Stop Nut (ESNA) Division
of Amerace Corporation.
2. That on or about 12 April 1985 the Respondent
(Harvard Industries), purchased the assets of ESNA
from Amerace and has, since said date, continued to op-
erate it in substantially the same manner as had Amerace.
3. That since on or about 8 April 1985 the Respondent
has failed and refused to hire a large proportion of the
persons employed by Amerace who were represented by
the Union because of their affiliation with the Union and
because Respondent intended to avoid any obligation to
recognize or bargain with the Union as a "successor" to
Amerace.
4. That but for the failure to offer employment to
former Amerace employees as described above, Harvard
would have been a "successor" to Amerace having a
legal obligation to recognize and bargain with the Union.
5. That on various occasions since 9 April 1985 the
Respondent has advised the Union that it would not rec-
ognize it as the collective-bargaining agent of the em-
ployees at ESNA
6. That on or about 15 April the Union commenced a
strike against ESNA which was honored by inter alia,
certain former Amerace employees who were offered
employment by Harvard.
7. That the aforesaid strike was caused and prolonged
by Harvard's unfair labor practices of refusing to hire
certain employees of Amerace and of refusing to recog-
nize the Union as the collective-bargaining representa-
tive.
8 That on 8, 21 and 23 May 1985 Respondent dis-
charged certain employees who formerly worked for
Amerace, who were offered employment by Harvard,
but who honored the strike described above in paragraph
6.
Based on the record as a whole including credibility
findings based on demeanor grounds and after reviewing
the briefs of the parties, I make the following
FINDINGS AND CONCLUSIONS
A. Jurisdiction
There is no dispute and I find that the Respondent is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
294 NLRB No. 88
HARVARD INDUSTRIES
I also conclude that the Union is a labor organization
within the meaning of Section 2 (5) of the Act.
B Operative Facts
The Union has since 1945 represented what essentially
can be described as the production and maintenance em-
ployees of Elastic Stop Nut at a plant located in New
Jersey. As defined by the last contract , the collective
bargaining unit includes:
All production , non-production , maintenance and
factory clerical employees of the Company em-
ployed at its plants and warehouses in New Jersey,
but does not cover office and other clerical employ-
ees, guards and watchpersons, field and safety in-
spectors , time study employees , messenger, techni-
cal and laboratory employees (including draftsper-
sons, engineers , chemists , metallurgists and techni-
cians), stationery store employees , salespersons, out-
side service persons, nurses, stock handlers in the
Accounting Department , administrative and profes-
sional employees , executives , and all or any supervi-
sory employees with authority to hire, promote, dis-
charge, discipline , or otherwise effect changes in
the status of employees or effectively recommend
such action.
Prior to 12 April 1985 , Elastic Stop Nut (ESNA) was
a division of a company called Amerace Inc. ESNA con-
sisted of four facilities which were located in Union,
New Jersey ; Pocohontas , Arkansas ; Chicago, Illinois;
and Montreal , Canada. Of these, the two manufacturing
facilities were at Arkansas and New Jersey It was at the
latter of these two manufacturing facilities that the Union
represented certain employees i
ESNA was and is engaged in the manufacture of metal
fastening devices (i.e., nuts). At Pocohontas it manufac-
tures nuts for general use whereas at New Jersey, the
manufacturing is done for the aerospace industry. Ac-
cordingly, the nuts made at New Jersey are made to
more demanding specifications than are those made in
Arkansas . Among the customers for the New Jersey
plant are the U S . government and various aircraft manu-
facturers.
The record in this case indicates that ESNA hit its
peak in the late 1950's when it was an independent com-
pany and before it was taken over by Amerace Thus, at
one time the workforce at the New Jersey facility ex-
ceeded 1500 employees.
In 1968 Amerace acquired ESNA and by this time the
workforce had declined to about 700 employees . In 1973
a separate manufacturing plant was established in Poco-
hontas, Arkansas.
According to Gary Anderson ,2 Amerace basically
viewed ESNA as a "cash cow." He states that Amerace
' The Chicago facility is involved in warehouse functions and the
Montreal facility is a sales office
At one time certain employees at the Pocohantus plant were unionized
However they were not at the time of the event herein
2 Prior to April 15, 1985, Mr Anderson was the division controller of
ESNA under Amerace After ESNA was taken over by Harvard. Mr
Anderson continued in that position
1103
drew money out of ESNA but let the company's physi-
cal plant decline by minimizing investment for improve-
ments. He also states that in 1983 Amerace set unreason-
able net profit goals for ESNA and announced that if
these goals were not met , ( 16 percent after tax return),
ESNA would either be sold or closed . According to Mr.
Anderson , in 1984 Amerace began looking around for a
purchaser for ESNA . (At about the same time Amerace
was also looking to sell off some of its other divisions as
well). By 1985 the production and maintenance work-
force of ESNA had declined to about 450 to 500 em-
ployes and of this number about 250 worked at theNew
Jersey plant
In the meantime , the Union and Amerace negotiated a
new 2-year collective -bargaining agreement which ran
from 2 June 1984 through 30 May 1986.'
In July 1984 Dr. Hurley3 and Stuart Coleman4 of Har-
vard Industries visited ESNA for the purpose of explor-
ing the possibility of purchasing the division . According
to Mr . Coleman , the president of ESNA (Jim Kerestes),
told them that the reason the company was doing so
badly and the reason it could not be turned around was
because of the terms of the collective -bargaining agree-
ment. Similarly, when representatives of Harvard spoke
to the managerial employees of ESNA, the latter group
cited the union contract as being a major obstacle to the
company's ability to efficiently manufacture and deliver
the product . Among the troublesome items mentioned in-
cluded : ( 1) the great reliance on seniority for promotions
and transfers ; (2) an incentive system which was too
complicated to manage and which generated disputes; (3)
too many job classifications which inhibited flexibility;
and (4) a grievance-arbitration procedure which made it
difficult to discipline the work force.
Harvard Industries is a conglomerate business enter-
prise. In the past Harvard Industries has generated
growth by acquiring other business enterprises. In all
past instances where Harvard has purchased a company
with a unionized work force the standard scenario has
been that Harvard has negotiated with the Union for
changes in the extant collective-bargaining agreement,
has hired the existing work force , and has recognized the
existing union. In all of these instances , Mr. Coleman has
been the person involved in these transactions on behalf
of Harvard 5
Subsequent to the summer visit by Dr. Hurley and Mr.
Coleman, Harvard hired James Duke as a consultant.
Mr Duke, who at one point in the past had been the
president of ESNA , was hired essentially to evaluate
ESNA 's operations so that Harvard could decide wheth-
er to acquire the company . As such, Mr. Duke spent a
great deal of time at ESNA over the next several months
observing its operations and sitting in on its management
meetings . Additionally , other managers associated with
3 Dr Hurley is the chief executive officer of Harvard Industries
4 Stuart Coleman was a vice president of Harvard Industries and was
in charge of "Human Resources " In effect , this meant that Mr Coleman
was in overall charge of all matters relating to employment Mr Cole-
man was also on Harvard 's board of directors
5 Mr Coleman testified as to the acquisition by Harvard of Harman
Automotive, Rubber Products Co and Anchor Swan The latter also was
a division of Amerace which was acquired at an earlier date
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Harvard visited ESNA and talked to ESNA' s manage-
ment Finally, Harvard contracted with the Arthur An-
derson Company, an outside consulting firm, to make an
independent evaluation of ESNA's operations.
In November 1984 the Arthur Anderson Company de-
livered a report to Harvard and among other things rec-
ommended that the New Jersey plant be moved to Ar-
kansas. In a memo from Mr. Duke to Dr. Hurley con-
cerning the Anderson report, Mr. Duke wrote as fol-
lows:
The report presents goals and means for their
achievement for the transition of operations, of Esna
from Amerace to Harvard Industries.
The fundamentals are:
1. The ability to operate the Union, N.J. plant in
a non-unionized environment.
2. Rearrangement of production processes and
their (partial or full) transfer to. the Pocohontas
plant to improve material flow and productivity.
3. Achievement of the transition through use of
existing finished goods and work-in-process invento-
ries and, most importantly, reduced lead times for
newly originated parts.
4. Investments in plant , equipment , personnel and
organization to improve overall effectiveness and
profitability.
As to the prospective takeover, Mr. Coleman testified
that he recommended to Dr. Hurley that it would be im-
possible to work with the collective-bargaining agree-
ment . He also testified that unlike Harvard 's past practice
of seeking to negotiate with unions for modifications of
existing contracts, he recommended and Hurley agreed
that no such action occur in this case. He testified:
Q. [W]hy didn 't you try to modify the contract in
this situation and recognize the Union?
A. We thought it would be impossible to, even if
you made a million modifications , we thought it
was an impossible instrument to work with and we
had made a lot of changes, particularly in the bene-
fits and all other conditions and we just didn't, we
thought it was an impossible job to do.
Similarly Dr. Hurley testified.
Q. My question, now that we've laid those pre-
liminaries out, is why wasn't the collective bargain-
ing agreement at the Elastic Stop Nut Division of
Amerace either assumed or renegotiated?
A. Well, after a review of the operations, after
the recommendations of the management people it
was determined that it was in the best interests of
the company not to recognize the union and not to
operate under that collective bargaining agreement.
A. The decision was made not to assume the col-
lective bargaining agreement because it was not op-
erating properly and the advice of the management
and the people reviewing the operations was that
we start fresh.
At the same time that Harvard was evaluating ESNA's
operations , ESNA' s management was also discussing
ways to make its operations more efficient. It seems that
these discussions took place not only for their inherent
utility but also to make ESNA a more appealing bride.
Among the various items discussed, it seems that in May
or June 1984, Mr. Kerestes initiated a study of a manu-
facturing process called the Cell concept. When it was
pointed out to Mr. Kerestes that implementation of such
a concept might infringe on the job classification provi-
sions of the union contract, he replied that for purposes
of planning, the union contract should not be considered.
Basically the Cell concept was described by the wit-
nesses as being a rearrangement of the factory's machin-
ery on the plant floor so that the products are made in a
more continuous fashion with less travel to and from
various procedures. In this regard, it does not seem to
me to involve the introduction of new machinery or new
processes or any other major changes in the production
procedures. At most, the Cell concept was contemplated
as simply a reshuffling of the factory layout in the hope
of having a more efficient configuration. At the time of
this hearing, (more than a year after Harvard's acquisi-
tion of ESNA), the Cell concept had not been imple-
mented. Had it been implemented, its effect on employ-
ees may have been to require them to learn how to oper-
ate more than one machine and to be more flexible about
their job assignments.
According to Mr. Mason,6 in February 1985 he
worked on a project which involved taking all job appli-
cations that ESNA had received from January 1985 and
coding them according to applicant and skill. He states
that the purpose of this was: (1) to consider the possibili-
ty of setting up a second shift7 and (2) gathering infor-
mation for use by any potential buyer.
In essence the evaluation of the unionized employees
was done hastily and in two parts Each employee was
evaluated by his own supervisor who gave an overall
score of 1 to 10. The same employee was then evaluated
by the personnel department under the direction of Mr.
Techanchuk which also gave an overall score of 1 to 10
At the conclusion, the two scores were averaged As far
as the line supervisor's were concerned, they apparently
were told not to consider union affiliation or activities in
arriving at their score. What is interesting, however, is
the tendency of the employees'supervisors to score them
higher than the personnel department under Mr Techan-
chuk, who among other things, was hired by Harvard to
make the final decision as to whether or not to hire any
particular Amerace employee who applied for a job at
6 Mr Mason, under Amerace was the plant manager of ESNA's New
Jersey plant Under Harvard he was plant manager from 15 April to 22
April 1985 After that he specialized in computer operations
7 At this time orders had picked up and by the time of the acquisition
on 12 April 1985, ESNA's backlog was up Also a second shift had been
added In March 1985 ESNA began another project to evaluate each of
its hourly (i e , union represented), employees at the New Jersey plant
This evaluation process was initiated by Mr Kerestes and was carved
out under the direction of Messrs Mason, Cuccarole, and Tehanchuk It
is of some interest and significance that these evaluations were done only
of the bargaining unit employees at the New Jersey plant and nothing
similar was done for any of the other employees of ESNA
HARVARD INDUSTRIES
Harvard.8 And in that respect, Mr. Tehanchuk testified
that he was told by Harvard's representative, Mr Cole-
man, not to hire people who were active in the Union.
Assuming that I believe Mr. Tehanchuk, (and I do), this
makes the evaluations essentially meaningless insofar as
the Respondent may wish to rely on them as a defense to
the 8(a)(3) allegations.
On March 29, 1985, Harvard and Amerace executed
an agreement whereby Harvard purchased ESNA. Also
purchased as part of the agreement was another division
of Amerace called Caco Pacific. The effective date of
the takeover was to be 12 April 1985.
On 29 March 1985 Amerace posted the following:
NOTICE TO EMPLOYEES
On March 29, 1985, Amerace Corp. and Harvard
Industries have entered an agreement for the sale of
all assets of the Esna Division of Amerace and the
Caco-Pacific Division of Amerace to Harvard In-
dustries.
Also on this date Amerace delivered a letter to the
Union which read-
Be advised that effective approximately April 12,
1985, Amerace is selling and transferring all of the
assets of the ESNA Division to Harvard Industries.
Simultaneously therewith, the employment of all
employees in the bargaining unit will be discontin-
ued.
We are prepared to meet with you at a mutually
convenient time to discuss the impact of this deci-
sion on the employees covered by our labor agree-
ment . We would suggest scheduling a meeting for
March 29, 1985, at 2:30 p.m. in the ESNA confer-
ence room.
The Respondent argues that it intended, upon the take-
over, to operate the ESNA Union, New Jersey plant
with a startup crew and as a partial operation. Thus,
Stuart Coleman at one point in his testimony stated that
he thought it might take 1 or 2 months to get the plant
fully started and that he intended to hire a startup group
for Monday, 15 April consisting mainly of skilled people.
Nevertheless other testimony by Respondent's wit-
nesses indicates to me that Harvard intended to have the
New Jersey and the Arkansas plants running at full
steam within the first week of the takeover and with
more than mere "start up" work forces. Thus, James
Duke, the man who Harvard intended to have in overall
charge of New Jersey operations, testified that in his
opinion Harvard needed at the start of operations, about
200 employees, half skilled and half nonskilled. David
8 In R Exh 8 1 note the following 48 employees were rated the same
by supervision and by the personnel department, 150 were given lower
ratings by the personnel department than by supervision Of these, 48
were downgraded so that their average scores were 5 1 /2 or below
(Harvard asserts that six was basically the minimal grade in order for a
former Amerace employee to be hired) Thirty employees got higher rat-
ings by the personnel department Yet in almost all of the latter cases the
employees involved had gotten very low ratings by their supervisors so
that even with the higher average scores they were still below six
1105
Fursman testified that Harvard's plan regarding the New
Jersey facility was to have regular production going on
Monday, 15 April. Similarly Mr. Cuccarole testified that
he anticipated that Harvard would be ready to run
within a few days and expected to begin operating by
Wednesday April 17. Although Mr. Coleman spoke of
beginning with a partial operation and a startup crew, he
also testified that as far as numbers of employees were
concerned, he intended to overhire, (i e hire more em-
ployees than might be needed). In this regard, he stated
that if it turned out that they were overstaffed, they
could later reduce through attrition. According to Mr.
Coleman, his past experience has been that even when he
has overhired, the company has usually not had to lay
off any employees thereafter.
As part of the planning process preliminary to the
takeover, Mr. Cuccarole made up a list of Amerace
hourly employees whose retention by Harvard would be
essential in order for operations to be effectively contin-
ued. This relatively small group of people, (about 34),
were either foremen, setup persons (i.e. people who set
up the machines for operation), a few tool and die
makers and a number of other job categories.9 All of the
salaried employees except for ESNA's president Mr.
Kerestes, and its "director of human resources, Arthur
Bradly, were retained by Harvard.1O It also is noted that
according to Mr. Mason, at the time of the takeover,
orders had risen, backlog was up and a second shift had
been started. Mr. Mason further testified that at a meet-
ing he attended in early April 1985, Mr. Coleman said
that Harvard was going to start up on 15 April, (in a
partial operation mode), and that the operation would be
union free.
In early April want ads were placed in various New
Jersey newspapers. Among the jobs requested were;
drivers, machinists, machine operators , platers, quality
control process inspectors, tool and die makers and
grinders. -
On April 8 the following notice signed by Stuart Cole-
man was placed on the ESNA bulletin boards:
TO: ALL HOURLY EMPLOYEES
RE: EMPLOYMENT WITH HARVARD
Effective April 12, 1985 Harvard Industries will
buy the assets of ESNA and Amerace will termi-
nate all activities at Union , New Jersey plant.
On Monday , 15 April, 1985, the Elastic Stop Nut
Division of Harvard Industries-the "new" compa-
ny-will begin partial operations.
0 See R Exh 29
10 In fact, virtually all of ESNA's employees throughout the country,
except for the bargaining unit employees at New Jersey were retained by
Harvard This was explained by Harvard as resulting in large part from
the fact that all nonunion employees of ESNA were entitled to severance
pay if they were laid off or discharged This severance pay liability, ac-
cording to Harvard, effected the purchase price of ESNA Thus, if Har-
vard agreed to retain employees who were covered by the severance pay
policy, the purchase price of the company was reduced As part of the
contract of sale, Harvard and Amerace agreed that if any employee cov-
ered by the severance pay policy was discharged within 90 days of the
takeover, Harvard and Amerace would share the cost of the severance
pay liability to that employee
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Those ESNA employees interested in employ-
ment with Elastic Stop Nut may apply at the Best
Western Coachman Inn, Exit 136 , Garden State
Parkway , Clark NJ, 8 AM to 8 PM, Monday
.through Friday, April 8 to 12. Applications may
also be obtained at the State Employment Office in
Elizabeth and at other locations to be announced
later.
On April 8 Harvard began interviewing people for the
ESNA plant. This took place at the Coachman Inn and
Harvard utilized a number of interviewers borrowed
from related companies . Mr. Tehanchuk was, however,
employed by Harvard to have the final say as to any
Amerace employees who applied for jobs and the other
interviewers were required to check with him if they
spoke to any persons employed by Amerace.
Mr. Tehanchuk who was present at the Coachman all
'day on April 8 and the early part of April 9 credibly tes-
tified that before the interviewing process began, Mr.
Coleman had a meeting with the interviewers . Accord-
ing to Mr. Tehanchuk, Mr. Coleman told them that he
wanted skilled people predominately and if people from
ESNA came in, he wanted to hire only the skilled
people or those people considered exceptionally fine em-
ployees . He states that Mr. Coleman went on to say that
he wanted to establish a quota of 25 percent for the
ESNA employees to be hired; that the purpose of the
quota was to maintain ESNA employees as a minority so
as to avoid a union . I t Tehanchuk testified that Mr. Cole-
man further said that they should avoid any types that
would be union oriented . Although Mr. Tehanchuk testi-
fied that Mr. Coleman used the phrase , "startup work-
force," he asserts that Mr. Coleman set no limit on over-
all hiring and in fact instructed them to hire as many
people as possible for the following Monday.
On April 9, the Union's principal officers, Pete Anton-
ellis and Francis Mershon, along with an International
representative Bill Kane, had a meeting with Mr. Bush,
an attorney representing Harvard . At this meeting the
Union requested recognition from Harvard and Mr. Bush
said that his law firm had promised Harvard a union free
environment . When Mershon brought up the fact that
Harvard had recognized the existing unions when it pur-
chased other companies , Mr. Bush said that the collec-
tive-bargaining agreement at ESNA was pretty compli-
cated and that they did not think they could get any-
thing from the Union. Mershon replied that the Union
was willing to negotiate to which Mr . Bush said that
Harvard was not assuming the contract and that it
wished to offer its own wages and benefits . Mershon
states that Bush said that as Harvard was not a signatory
to the contract it was not obligated under law to assume
the contract or to recognize the Union unless more than
50 percent of the work" force were UAW people. Ac-
cording to Mr. Mershon, Mr. Bush said that theUnion
could organize the employees and had a right to file a
petition for an election . He also states that Mr. Bush told
11 Respondent 's witness, David Fursman , in describing the meeting,
said that Mr. Coleman told the group that Harvard was planning to open
the company on Monday, 15 April, "union free and without a union con-
tract in place."
him to apply for work at Harvard ; that some of the best
supervisors were former union officials.
On the evening of April 9 , Mr. Mershon, at a meeting
of the Union's membership , notified them of the conver-
sation with Mr. Bush and told them to make applications
for jobs . He also told them that the Union 's position was
that under a successor clause in the contract, Harvard
was obligated to recognize the Union . He also asserted
that the Union 's position was that Harvard was obligated
to hire all of the employees.
On April 10, ESNA posted the following notice.'
TO ALL SHOP EMPLOYEES
This memorandum is to officially notify all
hourly shop employees that they are being laid off
from the Esna Division Amerace Corporation as of
the end of their shift on Friday , April 12, 1985.
On April 11 , another notice was posted.
PLEASE MAKE ARRANGEMENTS TO
CLEAN OUT ALL LOCKERS AND REMOVE
ALL PERSONAL ITEMS FROM THE 'PLANT
BY THE END OF YOUR SHIFT ON FRIDAY,
APRIL 12, 1985.
• ANYONE SCHEDULED FOR THE SECOND
SHIFT ON FRIDAY, APRIL 12, 1985, IS TO
REPORT FOR WORK ON THE DAY SHIFT (7
A.M.)
In the meantime, interviews were taking place at the
Coachman during the week of April 8. On April 9, Mr.
Tehanchuk quit because he received a threatening tele-
phone call and he was replaced by Ed Von Linden.
When former employees of Amerace went to the Coach-
man to be interviewed they were told by the interview-
ers or by Mr. Fursman in group speeches , that Harvard
was not assuming the collective-bargaining agreement;
that certain fringe benefits would be different; that there
was going to be a union free environment ; and that em-
ployees would be expected to do more than one limited
job.
In all, of the 240 hourly employees who were- em-
ployed at ESNA on April 12, 221 made direct applica-
tions for jobs at Harvard during the week of April 8.
Further, Mr. Mershon, on Friday, April 12 tendered a
letter to Harvard applying for jobs on behalf of the
entire bargaining unit. This read:
To Whom It May Concern:
Please be advised that Local 726 UAW hereby
makes application for employment with your firm
on behalf of all of the Bargaining Unit members
currently employed by Amerace/ESNA Division.
This application and any applications previously
filed by members should not be viewed as a waiver
of any rights which the Union or the members have
either under the law or under the collective bar-
gaining Agreement currently in effect with
Amerace/ESNA Division.
HARVARD INDUSTRIES
If there are any particular forms, documentation
or procedures which you require, please forward to
the undersigned for review
During the week of April 8, Harvard offered jobs to
75 persons who were not formerly employed by Amer-
ace. It also offered jobs to 68 former Amerace employees
in the following categories:
Set up operators 30
Foremen, Tool 2
and Die
Room employees 11
Inspectors 6
Platers 2
Shipping clerk 1
Expediters 2
Weighpersons 1
Storekeeper 1
Die Setter 1
Operators 5
Machinists 1
Miscellaneous 4
All of the former Amerace employees who were offered
jobs were also offered basically the same wages as they
had at Amerace. However, the fringe benefits were dif-
ferent. Thus they were offered a different pension pro-
gram, different health insurance, different vacations etc.
On Sunday, April 14, the Union held a meeting at
which the membership present (about 200 employes), de-
cided to commence picketing on Monday, 15 April.
They also decided that no one should go to work for
Harvard unless all the employees who had worked at the
New Jersey facility were hired.
On Monday, 15 April the Union's membership en-
gaged in mass picketing at ESNA and almost all of the
former Amerace employees who were offered jobs did
not cross the picket line. Homemade signs were dis-
played by the people during this first week. Also leaflets
were handed out which read:
PLEASE DON'T TAKE
MY JOB!!!
HARVARD INDUSTRIES IS HIRING SCABS
For over 40 years the Employees of the ESNA
DIVISION of the AMERACE CORPORATION
have been members of the United Auto Workers.
We have a contract in effect until 1986.
Effective this week AMERACE sold our plant
to HARVARD INDUSTRIES Our contract binds
any new owner to the terms of our Agreement
HARVARD INDUSTRIES is not honoring that
Agreement and is being unfair to you. There are no
new positions available-these jobs are ours today
and will be ours tomorrow)
You are being offered jobs at 40% less than we
currently make, and we are not going to let that
happen!
1107
We've worked hard and efficiently for many
years for this Company. Our families depend on
these jobs.
PLEASE DON'T LET HARVARD
INDUSTRIES
TURN YOU INTO A
SCAB
Because of the refusal of those former Amerace em-
ployees who had been offered jobs by Harvard to report
to work, Harvard, for several months had a great deal of
difficulty in getting production going on an efficient
basis According to Sue Czernick, the materials manager
under both Amerace and Harvard, the plant was running
badly after the takeover because of the lack of skilled
people who used to work for Amerace and who were on
strike. Also, Mr. Cuccarole testified that after the take-
over, the plant was operating at about 25 percent effi-
ciency because of the lack of skilled employees.
As a result of the above, Harvard made a concerted
effort to convince those former Amerace employees to
whom it had offered jobs to come to work. This was
done by repeated telephone calls to those people by Har-
vard's management. (All former Amerace managers)
When this did not meet with success, Harvard sent a
letter to most of these people which, according to Mr
Fursman, was intended to encourage them to come to
work. This read: 12
Dear Fellow Employee:
Several weeks ago Harvard Industries offered,
and you accepted, a position at Elastic Stop Nut
Although you accepted a position with Elastic Stop
12 This letter was sent to the following persons
E Gilbert Bataille Jr
Frank Bosefskie
Louis Coscia
Anthony Gargano
Ferris George
Charles Gleason
Vernell Green
Michael Gross
John Inderweis
Ronald Kish
Joseph Kolibas
Robert Lake
John Luby
Frank McCray
Charles McFeeley
Albert Mayfair
Stanley Marsnick
Chester Matlosz
Edward Mosca
Eugene O'Boyle
Anna May Olive
William Pagha
Michael Palmer
Russell Padora
John Prodziewicz
Andrew Pyar Jr
Anthongy Rauseo
Wieslaw Rozumilowicz
Joseph Setzer
Edward Shakleford
Leroy Wilkinson
Emil Woitowicz
Joseph Woitowicz
Clyde Cricle
Roger Nittolo
Alex Silva
Olga Streeter (Pat)
Peter Doroskhenko
Nathan Moore
Anthony Nasissi
Joseph Ocilka
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nut, you have neither reported to work nor stated a
desire to continue to be considered for future em-
ployment. For that reason, your employment status
will be changed immediately to reflect the fact that
you have voluntarily resigned and/or have been
permanently replaced.
Although we realize that the UAW's mass picket-
ing may have prevented many of our employees
from coming in to work at decent paying jobs and
good benefits, the company has and will continue to
operate and has, by obtaining an order of the court,
taken action to protect the safety of all our employ-
ees. Elastic Stop Nut will not be intimidated by the
UAW into closing down or moving elsewhere. We
will operate this plant with the nearly 200 employ-
ees who have reported to work so far, including
many of our former Amerace work force who have
come through the pickets. ,
It is very disturbing that the UAW's activity may
have not only prevented many good people, such as
yourself, from using their skills and abilities, but
may have deprived so many hard working people
of important benefits such as hospital and surgical
insurance. Even the State of New Jersey has stated
that the Union picketing may have jeopardized all
former Amerace emloyees' unemployment benefits.
We want you to know that we harbor no ill feel-
ings toward you and understand that the threats and
harrassment from the UAW. have made you a
victim, too
If you would like to be considered for employ-
ment in the future, please send us a letter by Friday,
May 17, 1985 indicating that you would like to keep
your application in our active file. If you have ob-
tained or are seeking other employment, we wish
you every success.
Thereafter on May 21, Harvard sent a letter to another
group of former Amerace employees who had been of-
fered jobs 13 This read:
We regret that you have decided to voluntarily
resign from Elastic Stop Nut, Division of Harvard
Industries. This letter confirms our recent telephone
conversation with you in which you informed us of
your intent not to accept employment with us.
We want to wish you success in your future en-
deavors and would ask you to notify us in writing
by June 1st if you would like to be considered for
employment in the future.
is This was sent to the following people
r,1
August Alexy
William Beirne
Frank Caporusso
Anthony DeNunzio
Anthony DiGeronimo
Raymond Gaughan
Earl Gillespie
Andrew Lech
Eugene O'Boyle
John Skiendziel
Richard Szotak
Kenneth Wetzel
Ralph Wusthoff
Andrew Laskowski
Finally, on May, 23 another letter was sent to certain per-
sons who apparently did not receive the first letter. This
letter was identical to the letter of May 8.
As noted above, Mr. Cuccarole asserted that the pur-
pose of the above noted letters was to encourage those
people to come to work. He also testified that after the
letters were sent, Harvard continued to telephone those,
employees in an effort to get them to report. When
asked when these subsequent phone calls were made, Mr.
Cuccarole was somewhat vague and indicated that the
calls resumed shortly before this hearing opened. 14
Ms. Czerniak (the materials manager at Amerace and
at Harvard), testified that on one occasion after the take-
over she spoke with Ed Von Linden about offering jobs
to two former Amerace employees who had not been of-
fered jobs at the Coachmen and whose services she felt
were needed. (Von Linden was the person at the Coach-
men after April 8, who had the final say as to whether
any former Amerace employee should be offered a job).
Ms. Czerniak credibly testified that Mr. Von Linden,
(who was now the plant superintendent), responded that
it would probably be difficult to get those people onto
the list of rehires because if more than 50 percent of the
bargaining unit people were rehired, the Union would
come back in.
Although there were difficulties that Harvard faced in
getting the New Jersey plant operating because of the
continued picketing and the refusal by many of skilled
former Amerace employees to report to work, it never-
theless did get things moving and manufacturing did go
forward. As to a comparison between Harvard's oper-
ation of the New Jersey facility as compared to Amer-
ace's, the parties stipulated that:
1. Harvard continued to sell products to substantially
the same customers as did Amerace.
2. Harvard continued to purchase materials from sub-
stantially the same suppliers as did Amerace.
3. Harvard used substantially the same raw materials
as did Amerace.
4. Harvard sold substantially the same products as did
Amerace.
Harvard asserts that it has changed operations at the
New Jersey facility. Among the items mentioned are: (1)
a greater degree of subcontracting; (2) the proposed Cell
Concept; and (3) greater capital investment in the plant.
Yet when one looks at the alleged changes, they appear
to to be relatively insignificant especially when viewed
in the light of the fact that under Harvard, ESNA is
making basically the same product; using essentially the
same machines and skills to do so; using the same raw
materials from essentially the same suppliers; and selling
its products to basically the same customers. Moreover,
despite the alleged increase in subcontracting under Har-
vard, the fact remains that as of March 1986 the total
number of hourly factory workers was not significantly
14 Mr Von Linden testified that he, Mr Cuccarole, and Ms Czerniak
made phone calls from May through December 1985 to a list of 15
former Amerace employees that had skills "we desperately needed" He
did not testify who those people were or when the calls were made with
any precision
HARVARD INDUSTRIES
different than the number that were employed by Amer-
ace as of April 1985.15
Also, although there was testimony regarding Har-
vard's capital improvement program , this did not con-
vince me that ESNA, under Harvard, was making a sig-
nificant change in the direction of the business. There is
no doubt that in 'running this business profitably, Har-
vard intended to and did invest more money into replac-
ing old machinery and updating the plant equipment. Yet
the largest approved expenditure for 1986 in the capital
improvement plan was simply to repair the factory's roof
and this represented $422,000 of the $544,148 spent
through March 19, 1986.
Moreover I do not consider particularly relevant Re-
spondent's arguments concerning the Cell concept which
was first discussed under Amerace, was discussed further
under Harvard and which was not implemented at the
time of this hearing. Further, even if it had been imple-
mented, I do not see how this concept would have been
a significant change in the employing enterprise.
C. Analysis
The record in this case shows that Harvard after its
purchase of ESNA from Amerace continued to be en-
gaged in the same business. Further , the record estab-
lishes that as far as ESNA as a whole, Harvard operated
at the same plants, using essentially the same equipment,
made essentially the same products and sold them to es-
sentially the same customers. Moreover, apart from the
hourly employees at ESNA's New Jersey factory, Har-
vard hired virtually all of the remainder of ESNA's em-
ployees.
Insofar as the ESNA plant at New Jersey which, prior
to the sale had employees represented by the Union, the
record demonstates that apart from a few relatively
minor changes, (the new roof being the most significant
in terms of dollars spent), the operations of that plant
were carried out in basically the same manner as had
been done under Amerace.16 While it may be that Har-
IS Walter Gordon , a manager employed both by Amerace and Har-
vard , testified about subcontracting under each company Basically his
testimony was that under Harvard there was an increase in the level of
subcontracting that had been done under Amerace and that in a few
cases this new subcontracting eliminated a number of job classifications
Thus, he testified that the janitorial and guard service was subcontracted
under Harvard This affected about 9 to 12 employees He testified that
the cafeteria services were eliminated thereby affecting three to four em-
ployees Gordon asserted that increased subcontracting in the nylon-slit-
ting department and the function of cutting off slugs reduced the number
of employees in the respective jobs by about four Finally he testified that
increased subcontracting eliminated positions in the tool room Yet the
evidence show that as of April 1985 there were 27 persons in the tool
room and in March 1986 there were 24 employees in that department If
anything, the evidence suggests to me that the reason there was an in-
crease in subcontracting of tool and die work was because Harvard was
having difficulty filling those jobs
16 In Inland Container Corp, 267 NLRB 1187 (1983) the Board held
that certain changes made by a purchaser were insufficient to negate the
"substantial continuity of the employing enterprise " In that case, where
the purchaser was held to be obligated to recognize and bargain with the
Union representing he predecessor 's employees , the company had updat-
ed the plants machinery , had relocated a shipping dock and had moved 3
walls in order to improve the flow of materials
1109
yard reduced the number of job classifications it appears
to me that essentially the same functions were carried
out in much the same manner, using substantially the
same equipment with a work force having basically the
same skills and total number of employees as had existed
under Amerace.
Given the above, it seems to me that the only factor
remaining which would determine if Harvard is a `'suc-
cessor" to Amerace having a legal obligation to bargain
with the Union at the New Jersey facility is whether
Harvard refused to hire a substantial portion of Amer-
ace's employees so as to avoid the bargaining obligation.
For if 1 ,conclude that "but for unlawful considerations,
the continuity of the predecessor's employee complement
would have been maintained ," then it would follow that
Harvard,would, under the NLRA, be obligated to recog-
nize and bargain with the Union. American Press, 280
NLRB 937 (1986); Love's Barbeque Restaurant No. 62,
245 NLRB 78, 79 (1979).
There is no doubt in my mind that Harvard discrimin-
atorily refused to hire all but a relatively small percent-
age of the Amerace employees because it wished to
avoid having either, to assume the union contract or
having to bargain with the Union. The intention to avoid
any bargaining obligation to the Union was to my mind,
manifestly clear from the testimony of Harvard's own
witnesses including'Dr. Hurley and Mr. Coleman. Thus
they testified that unlike their normal past practice in
similar takeovers, where Harvard retained the work
force, recognized the Union and negotiated contract
modifications, they chose not to do so in this instance be-
cause they felt that the union contract was too burden-
some and that the Union probably would be too inflexi-
ble. Accordingly, they decided not only that Harvard
was not ' going to assume the existing collective-bargain-
ing agreement but that Harvard, upon the takeover,
would not recognize the Union. In short, they decided
that when Harvard began operating the ESNA plant in
New Jersey, it would be run in a "union free environ-
ment " Moreover it is my conclusion that after reviewing
ESNA's operations and the union contract, and after
consulting with labor counsel, Harvard recognized that it
could only insure that it would not have to deal with this
union by making certain that Amerace employee's com-
prised a minority of the new work force.
Based on the record as a whole, it is my opinion that
Mr. Coleman, (as he asserted), intended, on Harvard's
behalf to overhire and have the ESNA factory in New
Jersey operating as quickly as possible after the takeover.
In fact, Mr. Duke, who was to be ESNA's president
under Harvard, and who was deeply involved in the
preparation for the takeover, testified that in his opinion
ESNA would require at least 200 hourly paid employees
in order to continue operations. Likewise Mr. Fursman
and Mr. Cuccarole stated that they expected to have op-
erations going by no later than April 17
I therefore reject Respondent's assertion that it intend-
ed, upon the takeover, to begin with a small startup crew
and to have a limited operation at the plant. On the con-
trary, the evidence convinces me that Harvard intended
to have this factory operating at full capacity as soon as
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
possible with a work force that would be larger than
their initial needs.
With respect to the hiring process, (mainly conducted
at the Coachman Inn, some distance from the factory),
the Respondent argues that it kept no tallies, logs or
other records of the people interviewed and either of-
fered or not offered jobs. It wishes me to conclude that
it therefore could not have imposed a quota as to the
hire of the predecessor's employees. Yet the evidence
shows that prior to April 8, manager 's of Amerace who
also were going to work for Harvard made lip a list of
bargaining unit employees whose skills would be neces-
sary to maintain operations and to whom jobs would be
offered. I believe that this hire list or a substantially simi-
lar list was used by Harvard to offer jobs to the former
Amerace employees. In fact based on this record, I be-
lievethat Harvard's intention was to refuse to hire any
Amerace employee unless an employee had particular
skills which made him necessary for Harvard to operate
the plant '
I credit the testimony of Mr. Techanchuk to the effect
that prior to the interviewing process at the Coachman
on 8 April, he was told by Mr. Coleman that insofar as
Amerace employees were concerned, Harvard wanted to
hire only skilled people or those who were considered to
be exceptionally fine employees. I also credit Mr. Te-
chanchuk's testimony that Mr. Coleman said that he
wanted to establish a quota of 25 percent of Amerace
employees to be hired so that they would constitute a
minority of the work force and would therefore allow
Harvard to avoid a union.17 In this respect, Mr. Techan-
chuk's testimony regarding a quota.was corroborated by
the credible testimony of Ms. Czerniak who worked as a
manager at ESNA under both Amerace and Harvard. As
will be recalled she talked with Mr. Von Linden some-
time after the takeover about the possibility of hiring two
former employees whereupon Mr. Von Linden respond-
ed that he did not know if it would be possible to add
them to the list because of the quota on hiring former
Amerace employees.
In sum , I conclude that the Respondent discriminatori-
ly refused to hire the vast majority of the former Amer-
ace employees because of its desire to avoid recognizing
or bargaining with the-Union. As such I conclude that
Harvard Industries violated Section 8(a)(1) and (3) of the
Act on 15 April as to all of those Amerace employees to
whom it had not made a job offer. 18 1
" I note that Harvard during the week of 8 April offered jobs to 68
Amerace employees, almost all of whom were in skilled job classifica-
tions or were otherwise necessary to the operation of the factory This
,,would be about 27 percent of Amerace's bargaining unit work force as of
.12 April Assuming as I do that Harvard wanted to operate ESNA with-
'out a break after the takeover, and that Mr Coleman intended to over-
hire, offers to 68 Amerace employees would just about equal the 25 per-
cent quota figure
is In view of Harvard's plan not to hire any Amerace employees
unless such employee was necessary to continue plant operations, I con-
clude that the General Counsel need not show that particular employees
made direct applications with Harvard for jobs In any event I note that
the Union by letter delivered on 12 April did apply for jobs on behalf of
all of Amerace 's bargaining unit employees
Having concluded that Harvard discriminatorily re-
fused to employ the Amerace employees, I conclude that
but for this discrimination, there would have been a con-
tinuity of employees from the predecessor to the succes-
sor. Accordingly pursuant to applicable law, Harvard
therefore was under an obligation to recognize and bar-
gain with the Union when it took over the plant's oper-
ations and its refusal to do so constitutes a violation of
Section 8(a)(5) of the Act.
Given the unlawful refusal to hire the former Amerace
employees and the concommitant illegal refusal to recog-
nize and bargain with the Union, I also conclude that the
strike which' the Union commenced on 15 April was an
unfair labor practice strike. NLRB v Birmingham Publish-
ing Co., 262 F.2d 2 (5th Cir. 1958); American Map Co,
219 NLRB 1174, 1182 (1975).
The next question is whether Respondent, as alleged
by General Counsel, discharged in May 1985 the em-
ployees who were offered jobs but who did not report to
work because they did not cross the Union's picket line.
The General Counsel bases this allegation on the letters
sent to these employees on 8, 21, and 23 May, 1984,
which are quoted infra. The Respondent, on the other
hand, asserts that these letters were intended to get these
people to come to work, and that they were in no way
intended to act as discharges.
As stated by the Board in Ridgeway Trucking Co, 243
NLRB 1048, 1049 (1979):
The test for determining "whether an employer's
statements constitute an unlawful discharge depends
on whether they would reasonably lead the employ-
ees to believe that they had been discharged," and
"the fact of discharge does not depend on the use of
formal words of firing. . . It is sufficient if the
words or actions of the employer would logically
lead a prudent person to believe his tenure had been
terminated "19
In this case I conclude that the Respondents unlawful-
ly discharged the employees involved as alleged by the
General Counsel. Thus, in the identical letters sent on 8
and 23 May, the receivers were told inter aka that their
employment status would be changed "to reflect the fact
that you have voluntarily resigned and/or have been per-
manently replaced." (There is no evidence that anyone
had been permanently replaced .)20 The letters went on
to say that if "you would like to be considered for em-
ployment in the future, please send us a letter by Friday,
17 May 1985 indicating that you would like to keep your
application in our active file." The letter sent to those on
21 May, also could reasonably be construed as a dis-
charge. It states inter alia, that the company regretted
that the employees have voluntarily resigned. It further
1s See also Dublin Town Ltd, 282 NLRB 307 (1986) In cases where
the employer 's statements creates ambiguity or confusion as to whether
employees are discharged, the ambiguity is resolved against the employ-
er Pennypower Shopping News, 253 NLRB 85 (1980)
20 As unfair labor strikers, rather than economic strikers the employee
involved could not, under the law , be permanently replaced and would
not lose their right to immediate reinstatement upon an unconditional
offer to return to work NLRB v Mackay Radio & Telegraph Co, 304
US 333 (1938)
HARVARD INDUSTRIES
goes on to tell these strikers that Harvard wished them
success in their future endeavor and asked them to
"notify us in writing by June 1st if you would like to be
considered for employment in the future."
It seems to me that the people who received these let-
ters could reasonably construe them as constituting no-
tices of discharge. In this respect, it is of little conse-
quence what the company intended, if "its words or ac-
tions . . . would logically lead a prudent person to be-
lieve his tenure had been terminated." Ridgeway Trucking
Co., supra. See also Conair Corp., 261 NLRB 1189, 1189-
1190 (1982), modified 721 F.2d 1355 (D.C. Cir. 1983).
Nor do I find that the company's subsequent actions
would mitigate against a finding that these people had
been discharged. Although the Respondent asserts that it
did not preclude any of these people from applying for
their jobs, and that it made subsequent efforts to get
them to go to work, it was vague as to the details of
those subsequent efforts (as to whom and when such ef-
forts were made), and Mr. Cuccocole's testimony indi-
cates to me that it re-offered employment to those people
only just before the hearing in this case opened.
In view of the above, I conclude that the Respondent
unlawfully discharged, in violation of Section 8(a)(1) and
(3) of the Act, all of the employees to whom it sent the
letters of 8, 21, and 23 May 1985.21
Finally the General Counsel argues that the Respond-
ent violated Section 8(a)(1) and (5) of the Act by unilat-
erally changing the terms and conditions of employment
for the employees in the bargaining unit.
In NLRB v. Burns Security Services, 406 U.S. 272, 295
(1972), the Court held that a successor employer neither
had an obligation to assume the predecessor's collective-
bargaining agreement nor the obligation to bargain with
the Union before establishing the initial terms and condi-
tions of employment. The Court stated:
Although a successor employer is ordinarily free
to set initial terms on which it will hire the employ-
ees of a predecessor, three will be instances in
which it is 'perfectly clear that the new employer
plans to retain all of the employees in the unit and
in which it will be appropriate to have him initially
consult with the employees' bargaining representa-
tive before he fixes terms. In other situations, how-
ever, it may not be clear until the successor em-
ployer has hired his full complement of employees
that he had a duty to bargain with a union, since it
21 Even if some of those persons only refused to cross the picket line
because of fear, this would be of no legal consequence In Dave Castellano
& Sons , 277 NLRB 453, 454 ( 1985), the Board stated
It is well established that nonstriking employees who refuse to
cross a picket line their fellow employees maintain , make common
cause with the strikers , and may not be lawfully discharged for their
activities Ashtabula Forge, 269 NLRB 774, 774-775 (1984) In Ashta-
bula Forge the Board specifically held that the Act protects an em-
ploye's refusal to cross a picket line even where the employee's sole
reason is a fear of personal bodily injury The Board reasoned that
"the focal point of the Board's inquiry is the nature of the activity
itself, the employee 's motives for engaging in the activity are irrele-
vant " [Footnotes omitted I
In citing the above case, I do not mean to imply that the Respondent
has proven that any particular bargaining unit employees refused to cross
the picket line because of fear
will not be evident until then that the bargaining
representative represents a majority of the employ-
ees in the union as required by § 9(a) of the Act.
In subsequent cases, the Board has concluded that
where a purchaser has illegally refused to hire the sell-
er's employees , the buyer would be presumed to have re-
tained substantially all of those employees and therefore
would not be entitled to set initial terms of employment
without first consulting the Union . American Press 280
NLRB 937 (1986); Love's Barbecue Restaurant No. 62,
245 NLRB 78 (1979 ), enfd . in relevant part 640 F.2d
1094 (9th Cir . 1981); State Distributing Co., 282 NLRB
1048 (1987).
Having concluded that the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by discriminatorily refus-
ing to hire the bargaining unit employees of Elastic Stop
Nut, Division of Amerace , at the New Jersey plant I
must therefore conclude, under the applicable case law,
that Harvard was not free to establish the initial terms
and conditions of employment and was obligated to first
bargain with the Union about such changes. Not having
done so, I conclude that the Respondent in this respect
violated Section 8(a)(1) and (5) of the Act.22
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By refusing to hire employees of Elastic Stop Nut
Division of Amerace Corporation at the Union, New
Jersey plant on 15 April 1985 because they were repre-
sented by the Union, the Respondent has violated Sec-
tion 8(a)(1) and (3) of the Act.
4. By refusing to recognize and bargain with the
Union at the aforesaid plant on 15 April 1985 as the col-
lective-bargaining representative of the employees in the
unit described below, the Respondent has violated Sec-
tion 8(a)(1) and (5) of the Act.
5. The strike which the Union commenced on 15 April
1985 was an unfair labor practice caused by the unfair
labor practices described above in paragraphs 3 and 4
22 Although this allegation was not specifically made in the consolidat-
ed complaint, the issue was fully litigated and all facts necessary to the
resolution of this issue were before me As stated by the court in Free-
Flow Packaging Corp v NLRB, 566 F 2d 1124, 1 131 (9th Car 1978)
Where an issue is fairly tried, even though it has not been specifi-
cally pleaded, the Board "could render a decision based upon the
issues actually tried without ordering amendment or it could order
amendment to conform to proof" Frito Co v NLRB, 330 F 2d 458,
465 (9th Cir 1964) Thus, although a specific charge is not made in
the original complaint , "the Board is not precluded from finding an
unfair labor practice if the parties have fully litigated the issue "
NLRB v Klaue, 523,F 2d 410, 415 (9th Cir 1975) Accord, REA
Trucking Co v NLRB, 439 F 2d 1065, 1066 (9th Cir 1971), Owens-
Corning Fiberglas Corp v NLRB, 407 F 2d 1357, 1361 (4th Cir
1969), American Boiler Manufacturers Assoc v NLRB, 366 F 2d 815,
821 (8th Cir 1966), Associated Home Builders of Greater East Bay Inc
Y NLRB, 352 F 2d 745, 753-755 (9th Cir 1965)
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6. By discharging, on 8, 21 , and 23 May 1985 certain
employees for honoring the Union 's picket line, the Re-
spondent has violated Section 8 (a)(1) and (3) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. The appropriate bargaining unit consists of:
All production , non-production, maintenance and
factory clerical employees of the Company em-
ployed at its plants and warehouses in New Jersey,
but does not cover office and other clerical employ-
ees, guards and ' watchpersons , field and safety in-
spectors, time study employees, messenger, techni-
cal and laboratory employees (including draftsper-
sons, engineers, chemists , metallurgists and techni-
cians), stationery store employees , salespersons, out-
side service persons, nurses, stock handlers in the
Accounting Department , administrative and profes-
sional employees , executives, and all or any supervi-
sory employees with authority to hire , promote, dis-
charge, discipline, or otherwise effect changes in
the status of employees or effectively recommend
such action.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , it is recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the Act.
With respect to the 8(a)(3) allegations it is recommend-
ed that Respondent offer employment to those former
union represented employees of Elastic Stop Nut Divi-
sion of Amerace (Union, New Jersey plant), to whom it
did not make offers of employment . Said offers are to be
made for their former jobs or, if those jobs no longer
exist, to substantially equivalent positions of employment,
without prejudice to their seniority or other rights and
privileges previously enjoyed , discharging, if necessary
to make room for them, employees hired from sources
other than Elastic Stop Nut Division of Amerace, and
make them whole for any loss of earnings that they may
have suffered due to the discrimination against them
from 15 April 1985 until a proper offer of reinstatement,
less net interim earnings , as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest to be com-
puted in the manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977). See generally Isis Plumbing Co., 138
NLRB 716 (1962).
As to those former Amerace employees who I have
concluded were discharged by the letters of Respondent
dated 8 , 21, and 23 , May, I shall recommend that they
respectively be offered reinstatement to those jobs that
they had been offered during the week of 8 April 1985,
or if those jobs no longer exist to substantially equivalent
positions of employment without prejudice to their se-
niority or other rights and privileges previously enjoyed.
For the purposes of computing backpay, the backpay
period shall start as of the date of the unlawful dis-
charges, (i.e., the dates on which the Respondent sent
these letters to the respective employees). Backpay shall
continue until the Respondent made or makes a valid
offer of reinstatement . Abilities and Goodwill, 241 NLRB
27 (1979). Backpay for this grup shall also be computed
with interest in the manner prescribed in F. W. Wool-
worth Co., Florida Steel Corp., supra; and Isis Plumbing
Co., supra.
In accordance with Sterling Sugars, 261 NLRB 472,
(1982), I shall also recommend that Respondent expunge
from its files any reference to the discharges or refusals
to hire of the above classes of employees and notify
them in writing that this has been done and that evi-
dence of these unlawful actions will not be used as a
basis for future personnel actions against them.
With respect to the 8(a)(5) refusal-to-bargain allega-
tions, I shall recommend, in accordance with American
Press supra, that the Respondent be required to recognize
and bargain with Local 726 United Automobile, Aero-
space and Agricultural Implement Workers - of America
in the appropriate collective-bargaining unit, and, if
agreement is reached , to reduce the agreement to a writ-
ten contract . In addition, I shall recommend that the Re-
spondent cancel, on request by the Union, changes in
rates of pay and benefits unilaterally effectuated and to
make the employees whole by remitting all wages and
benefits that would have been paid absent such changes
from 15 April 1985 until the Respondent negotiates in
good faith with the Union to agreement or to impasse.
Finally, I shall recommend a broad cease -and-desist pro-
vision.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed23
ORDER
The Respondent, Elastic Stop Nut Division of Har-
vard Industries Inc., Union , New Jersey, its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively with
Local 726, United Automobile, Aerospace and Agricul-
tural Implement Workers of America . as the exclusive
collective-bargaining representative of its employees in
the following appropriate unit:
All production, non-production , maintenance and
factory clerical employees of the Company em-
ployed at its plants and warehouses in New Jersey,
but does not cover office and other clerical employ-
ees, guards and watchpersons, field and safety in-
spectors, time study employees , messenger , techni-
cal and laboratory employees (including draftsper-
sons, engineers, chemists, metallurgists and techni-
cians), stationery store employees , salespersons, out-
side service persons, nurses , stock handlers in the
Accounting Department, administrative and profes-
sional employees, executives; and all or any-supervi-
sory employees with authority to hire , promote, dis-
charge, discipline, or otherwise effect changes in
23 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 pur-
poses.
HARVARD INDUSTRIES 1113
the status of employees or effectively recommend
such action.
(b) Making changes unilaterally in the rates of pay and
benefits of the employees in the above unit without
notice to and bargaining with the above Union.
(c) Refusing to hire or otherwise discriminating against
employees in their hire or tenure of employment because
they are members of, or gave support to, Local 726,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, or any other labor organiza-
tion.
(d) Discharging employees because they honored the
strike and picket lines established by the Union.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer immediate and full employment to all em-
ployees who as of the week ending 12 April 1985, were
employed by Elastic Stop Nut, Division of Amerace
Corporation who were employed at the Union, New
Jersey facility and who were in the aforesaid collective-
bargaining unit, without prejudice to their seniority or
any other rights or privileges previously enjoyed, dis-
charging, if necessary employees hired from sources
other than the Elastic Stop Nut Division of Amerace,
Union, New Jersey plant to make room for them.
(b) Offer immediate and full reinstatement to all em-
ployees who were discharged as per the Respondent's
letters of 8, 21, and 23 May 1985, said reinstatements to
be without prejudice to their seniority or any other
rights or privileges previously enjoyed, discharging if
necessary any persons hired to replace them.
(c) Make whole all of the employees in the classes de-
scribed above in subparagraphs (a) and (b) for any loss of
earnings they may have suffered in the manner described
in the remedy section of this decision.
(e) Recognize and, on request, bargain collectively
with Local 726, United Automobile, Aerospace and Ag-
ricultural Implement Workers of America as the exclu-
sive collective-bargaining representative of the employ-
ees described in paragraph 1(a) above, and, if an agree-
ment is reached, embody that agreement in an executed
written contract.
(f) On request of the above Union, restore the status
quo ante which existed prior to the implementation of
the unilateral changes made by the Respondent with
regard to the rates of pay, wages, and other terms and
conditions of employment in the unit described above,
and make the employees whole by remitting all wages
and benefits that would have been paid absent such
changes, plus interest, from 15 April 1985 until it negoti-
ates in good faith with the Union to agreement or to im-
passe, in the manner set forth in the remedy section of
this decision.
(g) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(h) Post at its office in Union, New Jersey, copies of
the attached notice marked "Appendix "24 Copies of the
notice on forms provided by the Regional Director for
Region 22, after being duly signed by Respondent's au-
thorized representatives shall be posted for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that the notices are not altered, defaced, or cov-
ered by any other material.
(i) Notify the Regional Director in writing within 20
days from the date of this Order, what steps have been
taken to comply. For the purpose of determining or se-
curing compliance with this Order, the Board, or any of
its duly authorized representatives, may obtain discovery
from the Respondent, its officers, agents, successors, or
assigns, or any other person having knowledge concern-
ing any compliance matter, in the manner provided by
the Federal Rules of Civil Procedure. Such discovery
shall be conducted under the supervision of the United
States court of appeals enforcing this Order and may be
had upon any matter reasonably related to compliance
with this Order, as enforced by the court.
24 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT refuse to recognize and bargain collec-
tively with Local 726, United Automobile, Aerospace
and Agricultural Implement Workers of America, as the
exclusive collective-bargaining representative of its em-
ployees in the following appropriate unit.
All production, non-production, maintenance and
factory clerical employees of the Company em-
ployed at its plants and warehouses in New Jersey,
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
but does not cover office and other clerical employ-
ees, guards and watchpersons , field and safety in-
spectors , time study employees , messenger , techni-
cal and laboratory employees (including draftsper-
sons, engineers , chemists , metallurgists and techni-
cians), stationery store employees , salespersons, out-
side service persons, nurses, stock handlers in the
Accounting Department , administrative and profes-
sional employees , executives , and all or any supervi-
sory employees with authority to hire, promote, dis-
charge, discipline , or otherwise effect changes in
the status of employees or effectively recommended
such action.
WE WILL NOT make changes unilaterally in the rates
of pay and benefits of the employees in the above unit
without notice to and bargaining with above Union.
WE WILL NOT refuse to hire and otherwise discrimi-
nate against employees to avoid bargaining with a union.
WE WILL NOT discharge employees because they hon-
ored the strike and picket line established by the Union
commencing on 15 April 1985.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer immediate and full employment to all
employees who as of the week ending 12 April 1985
were employed by Elastics Stop Nut Division of Amer-
ace Corporation who were employed at the Union, New
Jersey facility and who were in the aforesaid collective-
bargaining unit , without prejudice to their seniority or
any other rights or privileges previously enjoyed, dis-
charging if necessary employees hired from other
sources to make room for them.
WE WILL offer immediate and full reinstatement to all
employees who were discharged by the Respondent's let-
ters of 8, 21, and 23 May 1985, said reinstatements to be
without prejudice to their seniority or any other rights
or privileges previousl enjoyed, discharging if necessary
any persons hired to replace them.
WE WILL make whole all of the employees in the
classes described above for any loss of earnings they may
have suffered.
WE WILL recognize and, on request , bargain collec-
tively Local 726 United Automobile, Aerospace and Ag-
ricultural Implement Workers of America, as the exclu-
sive collective-bargaining representative of the employ-
ees described above, and, if an agreement is reached,
embody that agreement in an executed written contract.
WE WILL, on request of the above Union, restore the
status quo ante which existed prior to the implementation
of the unilateral changes made by us with regard to the
rates of pay , wages, and other terms and conditions of
employment in the unit described above, and make the
employees whole by remitting all wages and benefits that
would have been paid absent such changes, plus interest,
from 15 April 1985 until negotiations in good faith with
the Union to agreement or to impasse.
ELASTIC STOP NUT DIVISION OF HARVARD
INDUSTRIES, INC.