Kuno Steel Products Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 904 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kuno Steel Products Corp.; G. Zaffino & Sons, Inc.;
The Peelle Company; Mohawk Steel Fabrica-
tors, Inc.; Roman Iron Works, Inc.; Achilles
Construction Co., Inc.; and Master Iron Craft
Corp. and Shopmen's Local Union No. 455, In-
ternational Association of Bridge, Structural &
Ornamental Iron Workers, AFL-CIO
G. Zaffino & Sons, Inc.; Achilles Construction Co.,
Inc.; Kuno Steel Products Corp.; and The Peelle
Company and Shopmen's Local Union No. 455,
International Association of Bridge, Structural
& Ornamental Iron Workers, AFL-CIO. Cases
29-CA-6889, 29-CA-6890, 29-CA-6894, 29-
CA-6895, 29-CA-6896, 29-CA-6897, 29-CA-
6899, 29-CA-6932, 29-CA-6934, 29-CA-6935,
and 29-CA-6936
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On February 29, 1980, Administrative Law
Judge Morton D. Friedman issued the attached
Decision in this proceeding. Thereafter, Respond-
ents filed exceptions and a supporting brief, the
General Counsel and the Charging Party (herein
also called Local 455) filed cross-exceptions and
briefs in support thereof, and Respondents filed an
answering brief. The Charging Party also filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-ex-
ceptions, and briefs and has decided to affirm the
rulings, findings,' and conclusions of the Adminis-
trative Law Judge only to the extent consistent
herewith.
The Administrative Law Judge found, inter alia,
that Respondent Achilles did not unlawfully refuse
to bargain with Local 455 or to reinstate economic
strikers who unconditionally offered to return to
work, that Respondent Peelle did not unlawfully
refuse to bargain with Local 455, and that Re-
' The Charging Party has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not
to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Prod-
ucts. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his
findings.
The Administrative Law Judge's inadvertent reference to June 2 in the
third sentence of the second paragraph of sec. IILB1I. of the attached
Decision is hereby corrected to July 2.
252 NLRB No. 127
spondent Master did not unlawfully refuse to rein-
state striking employees. We disagree with these
and certain other findings, as detailed below.
Respondent Achilles
Achilles employed seven employees prior to the
commencement of the strike on July 1, 1975. The
Administrative Law Judge found that Achilles had
a rationally grounded belief that Local 455 no
longer represented a majority of its employees at
the time of the Union's request to bargain in July
19782 because of the lapse of time, the lack of pick-
eting, and the fact that two of the seven employees
retired on pensions during the strike and two
others terminated their membership in the Union.
The Board has consistently held that an incum-
bent union is entitled to a presumption of continu-
ing majority status, and that the burden rests with a
respondent to advance objective considerations on
which to ground a reasonable doubt sufficient to
rebut that presumption. Cut and Curl, Inc., 227
NLRB 1869, 1872 (1977). Neither mere reference
to a lapse of time nor the lack of picketing is the
type of indicator that in itself would justify a rea-
sonable doubt that a union no longer retains major-
ity support. Here, the passage of time, although
lengthy, was due to protracted litigation in which
Local 455 actively participated. We find, under
these circumstances, the passage of time unavailing
as a factor upon which Achilles could base a rea-
sonable doubt of continued union support where, as
here, the Union, by engaging in at least occasional
picketing and in meetings with employees to keep
them abreast of the litigation, has obviously not
abandoned the bargaining unit. Cf. Windham Com-
munity Memorial Hospital and Hatch Hospital Cor-
poration, 230 NLRB 1070, 1073 (1977), enfd. 577
F.2d 805 (2d Cir. 1978).
The Board has also held that a decline in union
membership is not a reliable indicator of employee
lack of support for a union. Orion Corporation, 210
NLRB 633 (1974), enfd. 515 F.2d 81 (7th Cir.
1975). Nor do we believe that, under the circum-
stances, Achilles could rely upon retirement of
striking employees to accept union pensions as a
basis for a reasonable doubt of the Union's continu-
ing majority support. Even if the two employees
who accepted union pensions during the strike
thereby removed themselves from Achilles' list of
employees, we would presume that their replace-
ments support the Union in the same ratio as those
whom they replaced. Windham Community Memo-
rial Hospital, supra at 1070. We find, therefore, con-
trary to the Administrative Law Judge, that Achil-
2 All dates hereinafter refer to 1978 unless otherwise indicated
904
KUNO STEEL PRODUCTS CORP
les did not have objective considerations upon
which to ground a reasonable doubt as to Local
455's continuing majority, and, consequently, we
hold that Achilles violated Section 8(a)(5) and (1)
of the Act when it refused to recognize and bar-
gain with Local 455.
Further, we find that the General Counsel estab-
lished a prima facie case that, on August 9, Local
455 made separate written offers to return to work
to Respondents herein, including Achilles, on
behalf of all employees who went on strike" and
that Achilles did not accept the offer. Under Board
law, once the General Counsel establishes an un-
conditional offer to return to work on behalf of
striking employees, the burden shifts to the re-
spondent to come forward with a substantial busi-
ness justification for its failure to reinstate those
employees. H & F Binch Co., 188 NLRB 720, 725
(1971), enfd. in pertinent part 456 F.2d 357 (2d Cir.
1972); Northwest Oyster Farms, Inc., 173 NLRB
872, 875 (1968).
Here, however, Achilles has made no effort to
satisfy its burden. Since the General Counsel's
prima facie case remains unrebutted, we must find
that Achilles violated Section 8(a)(3) and (1) of the
Act when it refused to reinstate economic strikers
upon receipt of Local 455's unconditional offer on
their behalf to return to work. We shall order
Achilles to offer its striking employees immediate
and full reinstatement to their former positions or,
if those positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously
enjoyed, and to make them whole for any and all
loss of earnings they may have suffered as a result
of the discrimination against them in the manner
set forth in the section of the Administrative Law
Judge's Decision entitled "The Remedy." 4
3 Respondent contends that this offer was not unconditional. We find
this contention without merit for the reasons stated by the Administrative
Law Judge.
4 Our Order, of course, does not require Achilles to create new jobs
for the discriminatees or pay them backpay for periods when employ-
ment was not available at Achilles' plant. Achilles will be permitted to
introduce evidence in the compliance stage of this proceeding concerning
the existence of jobs for unreinstated strikers at all material times herein
With regard to Respondent Zaffino, the Administrative Law Judge
found that Local 455 in fact retained majority status, and that Zaffino did
not have a good-faith doubt as to that majority We agree and hold, ac-
cordingly, that Zaffino violated Sec. 8(a)(5) and (1) of the Act by refus-
ing to recognize and bargain with Local 455 when the Union requested
bargaining on July 13
However, the Administrative Law Judge also found that an economic
strike was converted to an unfair labor practice strike "upon Zaffino's
signing with" another union when it should have been negotiating wvith
Local 455 The Administrative Law Judge was mistaken that Zaffino en-
tered into an agreement with another union. Nor do we believe that Zaf-
fino's 8(a)(1) and (2) violations in 1976 caused or prolonged the strike
Therefore, we find that Zaffino's striking employees were economic srik-
ers.
Since Zaffino failed to rebut the General Counsel's prima fci case
that Local 455 made an unconditional offer on behalf of its employees to
Respondent Peelle
Peelle employed approximately 37 employees
prior to the commencement of the strike. The Ad-
ministrative Law Judge found that Peelle had a
good-faith doubt based upon objective consider-
ations that Local 455 no longer represented a ma-
jority of its employees because of the lapse of time,
lack of picketing, and the fact that 30 of the 37 em-
ployees had ceased paying dues and been suspend-
ed from union membership.
As with Achilles, we hold that these factors are
not objective considerations evidencing unequivo-
cally a lack of union support, and that Peelle has
not established a reasonable doubt as to Local 455's
continuing majority status. Therefore, we find that
Peelle violated Section 8(a)(5) and (1) of the Act
when it refused to recognize and bargain with
Local 455.
We find, however, that Peelle did not violate
Section 8(a)(3) and (1) of the Act when it refused
to reinstate its striking employees upon receiving
Local 455's unconditional offer on their behalf to
return to work. The record establishes that, subse-
quent to the commencement of the strike, Peelle
transferred its fabricating operation to Toronto,
Canada, reinstated some striking employees who
offered to return, and hired permanent replace-
ments for the remaining positions available in the
warehousing and distribution work left in New
York. Although the General Counsel alluded at the
hearing to the possibility that this transfer violated
the Act, such an allegation is not part of the com-
plaint and the issue was not fully litigated. Peelle
has established that there were no jobs available
for the striking employees who unconditionally of-
fered to return to work, and we therefore find that
it did not unlawfully refuse to reinstate its striking
employees.
Respondent Master
In Independent Association of Steel Fabricators,
252 NLRB No. 129, issued today, the Board found
that Master did not have a rational basis for doubt-
ing Local 455's majority status on January 28,
return to work with any evidence of a substantial business justification
for its refusal to reinstate these employees, we are compelled to find that
Zaffino, as did Achilles, violated Sec. 8(a)(3) and (1) of the Act. As with
Achilles, we shall order Zaffino to offer its striking employees immediate
and full reinstatement. Zaffino and the other Respondents which are or-
dered to reinstate employees will be permitted to present evidence in the
compliance hearing of the kind discussed above with regard to Respond-
ent Achilles.
The Administrative Law Judge recommended in his remedy section
that Zaffino be ordered to bargain with Local 455 for I year from the
time it fully remedies its unfair labor practices We shall modify this por-
tion of the Administrative Law Judge's remedy to conform with our cus-
tomary bargaining order in these circumstances to require Zaffino to bar-
gain in good faith with Local 455 for a reasonable period of time
905
DECISIONS ()F NATIONAL LABOR RELATIONS BOARD
1976, when it entered into an agreement with an-
other union. Consequently, at that time Master was
under a duty to bargain with Local 455, and, when
it executed the contract with another union, it vio-
lated Section 8(a)(5) and (1) of the Act.
We find that Master's refusal to bargain pro-
longed the strike and converted it to an unfair
labor practice strike. Therefore, Master's striking
employees, who were not permanently replaced
prior to January 28, 1976, are entitled to full rein-
statement as unfair labor practice strikers pursuant
to Local 455's unconditional offer to return to
work. We shall order Master to offer its unfair
labor practice strikers immediate and full reinstate-
ment to their former positions or, if those positions
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any
other rights and privileges previously enjoyed, dis-
missing, if necessary, any employees hired subse-
quent to January 28, 1976, as replacements for such
positions, and to make them whole for any and all
loss of earnings they may have suffered as a result
of the discrimination against them in the manner
set forth in the section of the Administrative Law
Judge's Decision entitled "The Remedy." 5
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of
Law 3 of the Administrative Law Judge:
s The General Counsel presented evidence establishing a prima Jacie
case, which Respondents Achilles, Zaffino, Peelle, Master, Roman, and
Mohawk have not adequately rebutted, that economic and unfair labor
practice strikers individually returned to work prior to August 9, and
were not fully reinstated to conditions current at the time th. strike
began. Since an individual employee may make an unconditional offer to
return to work, each individual employee who was reinstated pursuant to
an unconditional offer was entitled to full reinstatement to the status quo
which he occupied at the time he went on strike. he Laidlaw' Corpora-
tion, 171 NLRB 1366, 1381 2 (1968), enfd 414 F 2d 99 (7th Cir 1969),
cert. denied 397 U.S. 920 (1970). Accordingly, in light of Respondents'
failure to rebut the General Counsel's prima faie case, we find their con-
duct in this regard to be violative of Sec. 8(a)(3) of the Act
We agree with the Administrative Law Judge's recommendation that
determination whether the total wages and benefits package these em-
ployees have received since returning to work is substantially equivalent
to the wages and benefits they received prior to the strike-and thus sat-
isfies the full reinstatement requirement-should be considered in the
compliance stage of this proceeding. Under the circumstances of this
case, we hold that Respondents' backpay liability to any employee who
returned to work before August 9 shall run only from months prior to
the filing of charges herein.
Finally, we agree with the Administrative Law Judge's dismissal of the
complaint against Respondent Kuno, but we modify his rationale for
doing so. At the time Local 455 demanded that Kuno bargain on July 13.
Kuno employed only one person in the unit-the second person having
voluntarily left Kuno's employ on May 10 The Board has long held that
it will not certify a union as representative for a one-person unit, and will
not find that an employer unlawfully refused to bargain in such a unit
See Teamsters Local Union No. 115 (J. Stanley Thackerah and J Charles
Barr t/a The ila-Barr Company), 157 NLRB 588, fn 3 (1966). We
adhere to this policy and will dismiss the complaint against Kuno because
at the time of the Union's demand for bargaining there was only one em-
ployee in the unit.
"3. By discriminatorily refusing to reinstate fully
their striking employees upon receipt of uncondi-
tional offers to return to work, Respondents G.
Zaffino & Sons, Inc., Mohawk Steel Fabricators,
Inc., Roman Iron Works, Inc., Achilles Construc-
tion Co., Inc., Master Iron Craft Corp., and The
Peelle Company have violated Section 8(a)(3) and
(1) of the Act."
2. Substitute the following for Conclusion of
Law 4 of the Administrative Law Judge:
"4. By refusing to recognize and bargain with
Local 455, as the exclusive bargaining representa-
tive of its production and maintenance employees,
Respondents G. Zaffino & Sons, Inc., Achilles
Construction Co., Inc., and The Peelle Company
have violated Section 8(a)(5) and (1) of the Act."
3. Substitute the following for Conclusion of
Law 5 of the Administrative Law Judge:
"5. Respondent Kuno Steel Products Corp. has
not committed any violations within the meaning
of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the named Re-
spondents, their officers, agents, successors, and as-
signs, shall take the following action:
1. Respondents G. Zaffino & Sons, Inc.,
Mohawk Steel Fabricators, Inc., Roman Iron
Works, Inc., Achilles Construction Co., Inc.,
Master Iron Craft Corp., and The Peelle Company,
shall cease and desist from:
(a) Discriminatorily refusing to reinstate fully
their employees who have been on strike to their
former or substantially equivalent positions.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Respondents G. Zaffino & Sons, Inc., Achi!les
Construction Co., Inc., and The Peelle Company
shall cease and desist from refusing, upon request,
to recognize and bargain with Shopmen's Local
Union No. 455, International Association of Bridge,
Structural & Ornamental Iron Workers, AFL-CIO.
3. Respondent G. Zaffino & Sons, Inc., shall
offer Joseph Cassara, Junius Howell, Roger Wil-
liams, Albert Cioffoletti, Sylvio Ruta, Joseph Riess,
and Robert Catalano immediate and full reinstate-
ment to their former positions or, if those positions
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any
other rights and privileges previously enjoyed, and
make them whole for any loss of earnings they
may have suffered by reason of the discrimination
906
KUNO STEEL PRODUCTS CORP.
against them in the manner set forth in the section
of the Administrative Law Judge's Decision enti-
tled "The Remedy."
4. Respondent Mohawk Steel Fabricators, Inc.,
shall offer Siegbert Hicke, Ronald Michaud,
Miguel Quevedo, Richard White, Paul Beaudreau,
Carmelo Consolo, William Daniels, Alf Lango,
Joseph Morris, Fritz O'Connor, Peter Rebecca, and
Max Stein immediate and full reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, dismiss-
ing if necessary, any persons hired subsequent to
January 9, 1976, as replacements for such positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make
them whole for any loss of earnings they may have
suffered by reason of the discrimination against
them in the manner set forth in the section of the
Administrative Law Judge's Decision entitled "The
Remedy."
5. Respondent Roman Iron Works, Inc., shall
offer Sam Caravano, Richard Catalano, Lucio Per-
ruza, Edward Sabella, Michael Schura, and Rufus
Ziegler immediate and full reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, dismiss-
ing, if necessary, any employees hired subsequent
to November 18, 1975, as replacements for such
positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed,
and make them whole for any loss of earnings they
may have suffered by reason of the discrimination
against them in the manner set forth in the section
of the Administrative Law Judge's Decision enti-
tled "The Remedy."
6. Respondent Achilles Construction Co., Inc.,
shall offer Joseph Chopko, John Kurm, John
Kuzma, Grover Smith, L. Douda, and Michael
Griffin immediate and full reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or
privileges previously enjoyed, and make them
whole for any loss of earnings they may have suf-
fered by reason of the discrimination against them
in the manner set forth in the section of the Ad-
ministrative Law Judge's Decision entitled "The
Remedy."
7. Respondent Master Iron Craft Corp. shall
offer Anthony Ariano, Ben Braver, Vincent J.
Congemi, Guido Pagan, Robert Scott, Moshe
Waldman, and Enrico Amico immediate and full
reinstatement to their former positions, or if those
positions no longer exist, to substantially equivalent
positions, dismissing, if necessary, any employees
hired subsequent to January 28, 1976, as replace-
ments for such positions, without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed, and make them whole for any loss of
earnings they may have suffered by reason of the
discrimination against them in the manner set forth
in the section of the Administrative Law Judge's
Decision entitled "The Remedy."
8. Respondent The Peelle Company shall offer
Arthur Reynolds, Glenn Pagano, Thomas Walsh,
and any other employee who individually returned
to work prior to August 9, 1978, immediate and
full reinstatement to their former positions or, if
those positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously
enjoyed, and make them whole for any loss of
earnings they may have suffered by reason of the
discrimination against them in the manner set forth
in the section of the Administrative Law Judge's
Decision entitled "The Remedy."
9. Upon request, Respondent G. Zaffino & Sons,
Inc., Achilles Construction Co., Inc., and The
Peelle Company shall recognize and bargain with
Shopmen's Local Union No. 455, International As-
sociation of Bridge, Structural & Ornamental Iron
Workers, AFL-CIO, individually, as the exclusive
collective-bargaining representative of their em-
ployees in the following appropriate unit:
All production and maintenance employees, in-
cluding plant clerical employees, employed by
Respondent Zaffino at its New Rochelle, New
York, facility, by Respondent Achilles at its
Brooklyn, New York, facility, and by Re-
spondent Peelle at its Bay Shore, New York,
facility, exclusive of office clerical employees,
superintendents and all supervisors as defined
in the Act.
10. Each Respondent named herein shall pre-
serve and, upon request, make available to the
Board or its agents, for examination and copying,
all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due employees under the terms
of this Order.
11. Respondents G. Zaffino & Sons, Inc.,
Mohawk Steel Fabricators, Inc., Roman Iron
Works, Inc., Achilles Construction Co., Inc.,
Master Iron Craft Corp., and The Peelle Company
shall post at their places of business and plants lo-
cated at various places in New York, New York,
and its environs, copies of the applicable notices at-
tached hereto as Appendixes A through F. 6 Copies
I In the eent that this Order is enforced by a Judgment of a United
States Court of Appeals. the ords in the notices reading "Posted by
Continued
907
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of said notices, on forms provided by the Regional
Director for Region 29, after being duly signed by
the respective Respondents' representatives, shall
be posted by Respondents immediately upon re-
ceipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
12. Each Respondent named herein shall sepa-
rately notify the Regional Director for Region 29,
in writing, within 20 days from the date of this
Order, what steps each Respondent has taken to
comply herewith.
IT IS FURTHER ORDERED that the consolidated
complaints herein be, and they hereby are, dis-
missed insofar as they allege violations of the Act
not specifically found herein.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminatorily refuse to re-
instate fully our striking employees to their
former or substantially equivalent positions.
WE WILL NOT refuse, upon request, to rec-
ognize and bargain with Shopmen's Local
Union No. 455, International Association of
Bridge, Structural & Ornamental Iron Work-
ers, AFL-CIO.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL offer Joseph Cassara, Junius
Howell, Roger Williams, Albert Cioffoletti,
Sylvio Ruta, Joseph Riess, and Robert Cata-
lano immediate and full reinstatement to their
former positions or, if those positions no
longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or
any other rights or privileges previously en-
joyed, and WE WILL make them whole for any
loss of earnings they may have suffered by
reason of our discrimination against them, to-
gether with interest.
WE WILL, upon request, recognize and bar-
gain with Shopmen's Local Union No. 455, In-
ternational Association of Bridge, Structural &
Ornamental Iron Workers, AFL-CIO, as the
exclusive collective-bargaining representative
of our employees in the following appropriate
unit:
All production and maintenance employees,
including plant clerical employees, em-
ployed at our New Rochelle, New York, fa-
cility, exclusive of office clerical employees,
superintendents and all supervisors as de-
fined in the Act.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
Shopmen's Local Union No. 455, International As-
sociation of Bridge, Structural & Ornamental Iron
Workers, AFL-CIO, or any other labor organiza-
tion.
G. ZAFFINO & SONS, INC.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminatorily refuse to re-
instate fully our striking employees to their
former of substantially equivalent positions.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL offer Siegbert Hicke, Ronald Mi-
chaud, Miguel Quevedo, Richard White, Paul
Beaudreau, Carmelo Consolo, William Daniels,
Alf Lango, Joseph Morris, Fritz O'Connor,
Peter Rebecca, and Max Stein immediate and
full reinstatement to their former positions or,
if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to
their seniority of any other rights or privileges
previously enjoyed, and WE WILL make them
whole for any loss of earnings they may have
suffered by reason of our discrimination
against them, together with interest.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
Shopmen's Local Union No. 455, International As-
sociation of Bridge, Structural & Ornamental Iron
908
KUNO STEEL PRODUCTS CORP.
Workers, AFL-CIO, or any other labor organiza-
tion.
MOHAWK STEEL FABRICATORS, INC.
APPENDIX C
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminatorily refuse to re-
instate fully our striking employees to their
former or substantially equivalent positions.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL offer Sam Caravano, Richard Ca-
talano, Lucio Perruza, Edward Sabella, Mi-
chael Schura, and Rufus Ziegler immediate
and full reinstatement to their former positions
or, if those positions no longer exist, to sub-
stantially equivalent positions, without preju-
dice to their seniority or any other rights or
privileges previously enjoyed, and WE WILL
make them whole for any loss of earnings they
may have suffered by reason of our discrimina-
tion against them together with interest.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
Shopmen's Local Union No. 455, International As-
sociation of Bridge, Structural & Ornamental Iron
Workers, AFL-CIO, or any other labor organiza-
tion.
ROMAN IRON WORKS, INC.
APPENDIX D
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminatorily refuse to re-
instate fully our striking employees to their
former or substantially equivalent positions.
WE WILL NOT refuse, upon request, to rec-
ognize and bargain with Shopmen's Local
Union No. 455, International Association of
Bridge, Structural & Ornamental Iron Work-
ers, AFL-CIO.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL offer Joseph Chopko, John Kurm,
John Kuzma, Grover Smith, L. Douda, and
Michael Griffin immediate and full reinstate-
ment to their former positions of, if those posi-
tions no longer exist, to substantially equiva-
lent positions, without prejudice to their se-
niority or any other rights or privileges previ-
ously enjoyed, and WE WILL make them whole
for any loss of earnings they may have suf-
fered by reason of our discrimination against
them, together with interest.
WE WILL, upon request, recognize and bar-
gain with Shopmen's Local Union No. 455, In-
ternational Association of Bridge, Structural &
Ornamental Iron Workers, AFL-CIO, as the
exclusive collective-bargaining representative
of our employees in the following appropriate
unit:
All production and maintenance employees,
including plant clerical employees, em-
ployed at our Brooklyn, New York, facility,
exclusive of office clerical employees, super-
intendents and all supervisors as defined in
the Act.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
Shopmen's Local Union No. 455, International As-
sociation of Bridge, Structural & Ornamental Iron
Workers, AFL-CIO, or any other labor organiza-
tion.
ACHII LES CONSTRUCTION Co., INC.
APPENDIX E
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminatorily refuse to re-
instate fully our striking employees to their
former or substantially equivalent positions.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL offer Anthony Ariano, Ben
Braver, Vincent J. Congemi, Guido Pagan,
Robert Scott, Moshe Waldman, and Enrico
Amico immediate and full reinstatement to
their former positions or, if those positions no
longer exist, to substantially equivalent posi-
909
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions, without prejudice to their seniority or
any other rights or privileges previously en-
joyed, and WE WILL make them whole for any
loss of earnings they may have suffered by
reason of our discrimination against them, to-
gether with interest.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
Shopmen's Local Union No. 455, International As-
sociation of Bridge, Structural & Ornamental Iron
Workers, AFL-CIO, or any other labor organiza-
tion.
MASTER IRON CRAFT CORP.
APPENDIX F
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminatorily refuse to re-
instate fully our striking employees to their
former or substantially equivalent positions.
WE WILL NOT refuse, upon request, to rec-
ognize and bargain with Shopmen's Local
Union No. 455, International Association of
Bridge, Structural & Ornamental Iron Work-
ers, AFL-CIO.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL offer Arthur Reynolds, Glenn
Pagano, Thomas Walsh, and any other em-
ployee who individually returned to work
prior to August 9, 1978, immediate and full re-
instatement to their former positions or, if
those positions no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or any other rights or privileges pre-
viously enjoyed, and WE WILL make them
whole for any loss of earnings they may have
suffered by reason of our discrimination
against them, together with interest.
WE WILL, upon request, recognize and bar-
gain with Shopmen's Local Union No. 455, In-
ternational Association of Bridge, Structural &
Ornamental Iron Workers, AFL-CIO, as the
exclusive collective-bargaining representative
of our employees in the following appropriate
unit:
All production and maintenance employees,
including plant clerical employees, em-
ployed at our Bay Shore, New York, facili-
ty, exclusive of office clerical employees, su-
perintendents and all supervisors as defined
in the Act.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
Shopmen's Local Union No. 455, International As-
sociation of Bridge, Structural & Ornamental Iron
Workers, AFL-CIO, or any other labor organiza-
tion.
THE PEEL LE COMPANY
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge:
These cases were heard before me in Brooklyn, New
York, on September 13, 14, 25, and 26, 1979, upon two
consolidated complaints which are based on 11 separate
charges filed by Shopmen's Local Union No. 455, Inter-
national Association of Bridge, Structural & Ornamental
Iron Workers, AFL-CIO, herein called Local 455 or the
Union.' The consolidated complaint in Cases 29-CA-
6889, 6890, 6894, 6895, 6896, 6897, and 6899 alleges, in
substance, that after the Union made unconditional offers
to return to work on behalf of the striking employees of
Kuno Steel Products Corp., herein called Kuno; G. Zaf-
fino & Sons, Inc., herein called Zaffino; The Peelle Com-
pany, herein called Peelle, Mohawk Steel Fabricators,
Inc., herein called Mohawk, Roman Iron Works, Inc.,
herein called Roman, Achilles Construction Co., Inc.,
herein called Achilles; and Master Iron Craft Corp.,
herein called Master, the said Respondents refused and
continue to refuse to reinstate the said employees to the
same or substantially equivalent positions they held
before a strike by Local 455 began, because of their par-
ticipation in the strike and their membership in the
Union. The complaint further alleges that the refusals
constitute interference, restraint, and coercion in viola-
tion of Section 8(a)(1) of the Act, and discrimination
against the employees which discourages union member-
ship in violation of Section 8(a)(3) of the Act.
The consolidated complaint in Cases 29-CA-6932,
6934, 6935, and 6936 alleges, in substance, that Local
455, which claims to be the exclusive collective-bargain-
ing representative of the production and maintenance
employees of each of Respondents Zaffino, Achilles,
Kuno, and Peelle, has requested each of Respondents to
continue to recognize and bargain with Local 455 as
such collective-bargaining representative of Respondents'
production and maintenance employees, but Respondents
individually have refused and continue to deny such re-
quest in violation of Section 8(a)(5) and (1) of the Act.
I The consolidated complaint in Cases 29-CA-6889, 6890, 6894, 6895,
6896, 6897, and 6899 was issued February 12, 1979, on seven separate
charges filed on January 2, 1979, by Local 455. The consolidated com-
plaint in Cases 29-CA-6932, 6934, 6935, and 6936 was issued March 9.
1979, on four separate charges filed on January 15. 1979, by Local 455
On March 12, 1979 the Regional Director fir Region 29 issued an order
consolidating all of the cases for hearing and disposition
910
KUNO STEEL PRODUCTS CORP.
The answers of the respective Respondents in both of
the consolidated complaints, while admitting the jurisdic-
tional allegations of the complaints2 and the appropriate-
ness of the units, deny the other material allegations of
the complaints.
At the consolidated hearing, all parties were afforded
full opportunity to be heard, to present evidence, and to
make oral argument. Oral argument was made by coun-
sel for the General Counsel and waived by counsel for
Respondents and the Charging Party. Subsequent to the
hearing, all parties filed timely briefs.'
Upon the entire record, and upon due consideration of
the briefs and the arguments of the parties, and upon my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT EMPI OYERS
Each of the individually named Respondents, all mem-
bers or former members, of the Independent Association
of Steel Fabricators, a bargaining association, are corpo-
rations maintaining offices and facilities in the city of
New York, New York, and its environs. Each is engaged
in some branch of the business of manufacturing, selling,
distributing, and installing various products made of iron,
steel, and other metals and related products. During the
year immediately preceding the issuance of the consoli-
dated complaint herein, each Respondent derived gross
revenues in excess of $500,000, purchased and caused to
be transported to their place of business iron, steel, metal
products, and other goods and materials of a value in
excess of $50,000, which goods and materials were trans-
ported and delivered to their places of business directly
from States other than the State of New York. Addition-
ally, other enterprises located in the State of New York,
each of which other enterprises had received goods and
materials in interstate commerce directly from States in
the United States other than the States in which they
were located, also sold items and shipped the same to
each Respondent of a value in excess of $50,000.
Accordingly, it is admitted, and I find and conclude,
that each Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE L.ABOR ORGANIZATION INVOLVED
It is admitted, and I find, that Local 455 and Local
810 are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Issues
These cases represent the second round of Board liti-
gation involving the same parties. In the case of Inde-
pendent Association of Steel Fabricators, Inc., et aL, 231
NLRB 264 (1977), the Board found, inter alia, that var-
2 Although the written answers to the complaints deny jurisdiction, at
the hearing such denial was withdrawn and jurisdiction was conceded
3 Certain errors in the transcript are hereby noted and corrected
ious respondents in that case, who are also Respondents
in the instant case, violated Section 8(a)(1), (2), (3), and
(5) of the National Labor Relations Act, herein called
the Act. The Board in that case found that certain of the
respondents had committed the 8(a)(5), (3), and (2) viola-
tions by recognizing and entering into collective-bargain-
ing agreements with Local 810, at a time when they
were obligated to bargain collectively through the Asso-
ciation with Local 455.
Thereafter, upon the Board's petition for enforcement,
the United States Court of Appeals for the Second Cir-
cuit enforced in part and denied in part the Board's De-
cision and Order.4 The court found, inter alia, that a
group of six employers, among them Respondents
Mohawk and Roman, were guilty of violations of Sec-
tion 8(a)(5) by executing contracts with Local 810 before
commn icating their withdrawal from association bar-
gaining to Local 455. The Court, however, left open the
question of whether the appropriate remedy would be to
order said Respondents to bargain with Local 455, or if
an election among their employees would be preferable.
With regard to another group of Respondents whom
the court designated as Class II, among them Respond-
ent Master herein, the court was not willing to find on
the record before it that these Respondents committed
8(a)(5) violations. Rather, the court invited any party to
the proceeding to petition the Board to take evidence as
to whether any of the said Respondents at the time each
signed bargaining agreements with Local 810 possessed
either a good-faith doubt that Local 455 had lost its ma-
jority status among the individual Respondent's employ-
ees, or whether, in fact, Local 455 had actually lost its
majority status among these employees. 5 The court fur-
ther held that, if neither of the foregoing could be estab-
lished, the court was prepared to find 8(a)(5) violations
committed by these Respondents, including Master. On
the other hand, if either of the foregoing alternatives
could be established by the evidence, then, in that event,
the court would find that these Respondents were not
guilty of 8(a)(5) violations.
With regard to the remaining Respondents involved in
that earlier litigation, the court held that a group desig-
nated as Class III, among whom are Kuno, Zaffino,
Peelle, and Achilles, did not violate Section 8(a)(5) of
the Act because they had withdrawn from multiem-
ployer bargaining at a proper time after bargaining im-
passe and had given notice to Local 455 of the with-
drawal. Moreover, none of these Respondents, Kuno,
Zaffino, Peelle, and Achilles, had entered into collective-
bargaining agreements with Local 810, or any other
labor organization.
However, the court sustained the Board's finding that
Respondent Zaffino violated Section 8(a)(2) and (1) of
the Act by rendering assistance and support to Local 810
at a time when Zaffino had not withdrawn from the As-
sociation and when the Association was still negotiating
with Local 455. On the other hand, the court found that
' NI R B vX Independent A.ssociaton of Ste'l FIahricaors. Inc.. et al.
582 F2d 135 (2d Cir 1978).
5 Id at 151, 153. n 37
411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was no record support for a finding that Master
had violated Section 8(a)(2) and (1) of the Act.
In accordance with the court's decision as set forth
above, Local 455 filed a motion to reopen the hearing
with respect to the imposition of a bargaining order upon
Respondents designated by the court as having either
violated Section 8(a)(5) of the Act (Class I) or possibly
having violated Section 8(a)(5) of the Act (Class II).
Over the opposition of Respondents in the earlier case,
the Board granted the motion of Local 455 and ordered
that earlier hearing reopened and remanded for the pur-
pose of arranging hearing in accordance with the motion
and the court decisions. Pursuant to the Board's order of
remand, a further hearing was held before me and, there-
after, after hearing further evidence, I issued a Supple-
mental Decision in the earlier case on February 22,
1980.6
In that Supplemental Decision, it is recommended to
the Board, based on the court of appeals decision and
Board precedent, that Mohawk and Roman be ordered
to bargain with Local 455. Additionally, the Supplemen-
tal Decision concluded that Master had a rationally
based, good-faith doubt that Local 455 represented a ma-
jority of its employees when Master signed a collective-
bargaining agreement with Local 810. Accordingly, it
was not recommended that Master be ordered to bargain
with Local 455.7
The court, in its opinion, also concluded that an offer
by Local 455 on behalf of all its members who were
striking, to return to work, was not unconditional. 8 As a
result of the court's decision, on August 9, 1978, Local
455 sent separate written offers to return to work to Re-
spondents herein on behalf of all of the employees who
went on strike. The General Counsel and Local 455 con-
tend that this offer was unconditional. They further
allege and contend that the Respondent Employers,
named in the complaints in violation of Section 8(a)(3)
and (I) of the Act, failed to comply with the said offer.
Additionally, they contend that even those striking em-
ployees who returned to work before the above offers by
Local 455 have not been reinstated to their former or
substantially equivalent positions because they do not re-
ceive rates of pay and other employment benefits equal
to those which they received when Respondents had
bargaining agreements with Local 455.
Additionally, on July 13, 1978, Local 455 gave written
requests to bargain to Respondents Zaffino, Achilles,
Kuno, and Peelle. According to the General Counsel and
Local 455, as alleged in the applicable complaint herein,
these four Respondents, since July 14, 1978, have refused
unlawfully to bargain with Local 455, the alleged bar-
gaining representative of the said Respondents' produc-
tion and maintenance employees.
All of Respondents, while denying the failure to rein-
state the employees as requested in the letter of August
Case 29-CA-4853.
7 Although both the General Counsel and Local 455 argue that Master
was not absolved by the court of all violations of Sec. 8(a)(2) and (I) of
the Act, it is concluded that such argument is without merit See 582
F.2d at 143-144.
N.L.R.B. v. Independent Association of Steel Fabricators. Inc.. et al.,
582 F2d 135. 152-153.
9, contend (1) that the August 9 letter did not constitute
a timely offer to return to work; (2) assuming timeliness,
the letters were not authorized by the employees whom
the Union purports to represent; (3) that the offers were
offers in form but not in fact; (4) that the offers were not
unconditional because they were conditioned upon all of
the employees being taken back by all of Respondents,
and because they were further conditioned upon contri-
butions being made on behalf of the returning employees
to various Local 455 funds; (5) the offers cannot be
deemed to apply to the employees who had returned to
work before the offers were made; and (6) in any event,
Respondents have not denied reinstatement to any em-
ployees entitled thereto.
As to the refusal-to-bargain allegations against Zaffino,
Achilles, Kuno, and Peelle, these Respondents contend
that in the light of the circuit court of appeals decision in
the earlier case involving them (1) Local 455 has lost its
majority among Kuno's employees; (2) all four of these
Respondents had a reasonable basis for doubting that
Local 455 possessed majority status among their respec-
tive employees; and (3) in any event, because of the lapse
of time and other factors, an election, rather than a bar-
gaining order would be the only appropriate remedy.
The issues are thus drawn.
B. The Facts and Their Import
1. Respondent Kuno
As heretofore noted, the circuit court of appeals ab-
solved Kuno of all unfair labor practices along with Re-
spondents Peelle and Achilles. Additionally, unlike the
cases of Respondents who were designated as Class II
Respondents, the court did not ask the Board upon peti-
tion of any of the parties to determine whether these
Class 111 Employers were obligated to bargain with
Local 455. In the case of Kuno, accordingly, it must be
determined at the outset whether Local 455 had majority
status among Kuno's employees since July 13, 1978, the
date on which Local 455 last requested bargaining of
Kuno.
The record shows that as of the date of the original
strike, July 1, 1975, Kuno employed two union members
who were the only employees of Kuno within the unit
represented by Local 455. These employees were Ogey
Eretzian and Werner Vogt. Neither of these employees
originally went out on strike on the strike date, but were
employed until June 2, when a group of men led by
Union Representative Kenneth Mannsman visited Kuno's
premises. When Kuno Weckenmann, president of Kuno,
saw this group approaching the plant, he instructed the
two employees to flee, fearing physical violence. They
did so and did not return to Kuno's employ until 1976.
Eretzian returned to work on January 14 of that year
and Vogt returned to work on July 7. Eretzian at the
time of the hearing in the instant proceeding was still
working for the Respondent. He last paid dues to Local
455 in June 1975 and was suspended from membership
therein around the end of 1975. Vogt worked for Re-
spondent after returning in July 1976 until May 10, 1978,
when he voluntarily left Respondent's employ. Vogt
912
KUNO STEEL PRODUCTS CORP.
paid dues to Local 455 until June 1976, at which time he
paid for January 1976. He was suspended from member-
ship in Local 455 in the summer of 1976. Accordingly,
when Local 455 made its request for bargaining on July
13, 1978, Kuno employed only Eretzian who, as noted,
was no longer a member of Local 455. Accordingly, I
find and conclude that Local 455 did not possess major-
ity status among Kuno's employees as of the date of the
request for bargaining. Additionally, inasmuch as Eret-
zian returned to work for Kuno on January 14, 1976, at
which time the strike was still on, insofar as Local 455
was concerned, there is no necessity for Kuno to send a
notice to Eretzian to return to work in accordance with
the August 9, 1978, offer of Local 455.
Insofar as any of the differences in pay or other bene-
fits between that which Kuno's employees were entitled
to in June 1975, before the expiration of Kuno's contract
with Local 455, and what they have received since their
return to work, the record shows that they both returned
at the same rate of pay, but by the time Vogt quit they
were both earning 50 cents more per hour than they
were entitled to under the expired Local 455 contract.
They also received Blue Cross-Blue Shield benefits, and,
according to Kuno Weckenmann, the employees also en-
joyed a pension plan.
Accordingly, under all of the circumstances herein, I
shall order dismissal of the complaints in both of the
consolidated cases herein insofar as the complaints relate
to Kuno.
2. Respondents Mohawk and Roman
Mohawk and Roman were found by the Board and the
court of appeals to have violated Section 8(a)(5) and (1)
of the Act by entering into a collective-bargaining agree-
ment with Local 810 before giving notice of withdrawal
from multiemployer bargaining to Local 455. In view of
the court's sustaining the Board's finding of violations as
to these two Respondents, it has been recommended in
my decision rendered subsequent to the hearing on
remand,9 that a bargaining order be imposed upon these
two Respondents. Accordingly, those unfair labor prac-
tices remain, as yet, unremedied.
Respondent's defense that the August 9, 1978, offer by
Local 455 to unconditionally return the striking employ-
ees to work is untimely is without merit. The unreme-
died unfair labor practices committed by these two Re-
spondents prolonged the strike. By reason of the delay
which ensued from the Board's petition for enforcement
in the original decision and the date of the court's deci-
sion affirming the Board in this respect as to all Class I
Employers in which the court placed Mohawk and
Roman, the offer by Local 455 involved herein cannot
be deemed untimely. The offer to return to work was
made on August 9, 1978, only a few days more than a
month after the court's decision of June 30, 1978.
With regard to Respondent's defense that Local 455
was not authorized by the employees of Mohawk and
Roman, any loss of majority and, thus, a loss of employ-
" Independent Association of Steel Fabricators. Inc.. et al., Administrative
Law Judge's Supplemental Decision dated February 22, 1980, in Case
29-CA-4853, etc. [Board's Supplemental Decision and Order at 252
NLRB No 129.1
ee members of Local 455 who could or would authorize
Local 455 to make such offer for them, must be laid at
the door of the Respondents who committed the unfair
labor practices. It is well settled that an employer cannot
reap benefits from his own unfair labor practices. '
Therefore. the fact that Local 455 may not represent a
majority is not a factor to be considered to determine
whether Local 455 had to be authorized to make the
offer.
Nor is there validity in Respondents' defense that the
offer to return to work by Local 455 was one in form
but not in fact. It may well be true that many of the em-
ployees who had been employed by these two Respond-
ents had either not gone out on strike or have already
returned to work, or have retired, or died, or become
disabled, or taken permanent employment elsewhere, or
most importantly, have terminated memberships in Local
455, and even joined other unions. The principle of law
that employees who commit unfair labor practices
cannot benefit from their unfair labor practices is equally
applicable here.
The same can be said for Respondents' defense that
the offer made by Local 455 on August 9, 1978, was
conditioned on all of the employees of all the Employers
involved, returning to work; or that the offers were con-
ditioned on contributions being made by the Employers
on behalf of the returning employees to the various
Local 455 funds. With regard to the reinstatement of all
of the strikers, the fact that the offer did not separate the
economic strikers from the unfair labor practice strikers
and the employees who have already returned to work
does not render the offer conditional. The principle of
the Laidlaw case, I applies here. Economic strikers who
have been replaced are entitled to be reinstated on depar-
ture of their replacement. There is no question that the
offer made by Local 455 does not differentiate, in its
wording, as between economic and unfair labor practice
strikers. It can have no more meaning than that the eco-
nomic strikers who have been replaced cannot expect
immediate reinstatement. However, they may be reinstat-
ed when their replacements leave Respondent's employ.
Accordingly, the offer is not conditional.
Furthermore, with regard to those employees who
have already returned, they are entitled to whatever
benefits they received before, including the fringe bene-
fits they received before the strike of 1975. The fact that
they may be entitled to the same does not make the offer
to return conditional. Additionally, Respondents do not
show any economic reasons for not accepting the eco-
nomic strikers back. Any reinstatement or backpay to
which these employees may be entitled may be deter-
mined in any backpay or further supplemental proceed-
ing. Moreover, it can be determined in such a proceeding
whether the current benefit program which these Re-
spondents offer is substantially equivalent to the program
offered under the aegis of Local 455.
Thus, by reason of the foregoing, Respondents' argu-
ment that the unconditional offer cannot be applied to
.L.R.B. v. Frank Bros Company, 321 U S 702 (1944).
I The Laidlaw Corporation v . L.R.B.. 414 F2d 99 (7th Cir 1969),
cert denied 397 U.S 920
913
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
the employees who have already returned to work is
without merit. Additionally, in a backpay proceeding to
determine the amount to which each unfair labor prac-
tice striker is entitled, if Respondents are found to be
paying, or have been paying, larger wages or giving
greater benefits than that which their employees received
under the Local 455 contract, there will be no necessity
to reduce such rates of pay or other benefits to conform
to the earlier amounts paid under the Local 455 contract.
Finally, we come to some of the other arguments and
contentions of Respondents, which, it would seem, fall
into a basic single category. The letters of inquiry sent
by Respondents upon receipt by them of Local 455's
offer to return the employees to work merely serve to
delay the final end to this prolonged litigation. Again the
Laidlaw Corporation case is applicable. 12 There, the
court of appeals can readily reach them and ask them to
return to work. If those who do not desire work do not
return, then the employer is under no obligation to hire
them. 13
Additionally, the fact that the Union might still be
conducting a strike, although not using the employees of
any of these Respondents as pickets, such picketing is the
result of Respondents' failure to reinstate employees
upon Local 455's unconditional offer of reinstatement.
They made no effort to reach the strikers and ask them
back to work. Were the unconditional offer to be accept-
ed, and were Local 455 to continue the strike, the result
might be different. However, here, no reinstatement offer
having been made by Respondents, the failure constitutes
a violation of the Act, entitling Local 455 to continue to
strike until such time as the unconditional offer is accept-
ed in good faith by Respondents. Therefore, if the strike
still continues, the continuation is caused by Respond-
ent's failure to reinstate the employees.
Accordingly, I find that Mohawk and Roman, by fail-
ing to offer reinstatement to their striking employees are
in violation of Section 8(a)(3) and (1) of the Act.
3. Respondent Master
Inasmuch as Master has been absolved of all unfair
labor practices in my Supplemental Decision in the earli-
er case 4 and inasmuch as Master has had an ongoing
bargaining relationship with Local 810 since 1975, it is
concluded that Master is not only under no obligation to
recognize and deal with Local 455, but, in addition, need
not, under these circumstances, offer reinstatement to
any of the original employees who have not returned to
its employ. Accordingly, I shall order the complaint
herein dismissed insofar as it relates to Master.
4. Respondents Achilles and Peelle
Neither of these Respondents has been a party to a
collective-bargaining agreement with Local 455 or, for
that matter, with any other labor organization since that
date, at least so far as the record herein shows. Addition-
ally, Vice President Zito of Local 455, in testifying, indi-
2 Id., 414 F.2d 99.
' Id. at 105, fn. 2.
14 Iadependenr ,4ssociation oSteel Fabricators. Inc, issued February 22.
1980.
cated that neither of these Employers is currently being
picketed. Moreover, regarding the complement of their
employees, Local 455 does not enjoy majority status
among the current individuals working for either of
them.
With regard to Achilles, Victor Brownstein, president
of Achilles, testified credibly that there was no picketing
by Local 455 in 1979, and very little picketing at all in
both 1977 and 1978. Moreover, at the time the strike
began, Achilles employed seven employees. The record
shows that of the seven, two employees, Joseph Chopko
and Angelo Matalo, have retired on pension. Additional-
ly, Grover Smith and L. Douda have long since termi-
nated their membership in Local 455.
By reason of the foregoing, the lapse of time, and the
fact that Achilles committed no unfair labor practices, I
find and conclude, that if, indeed, Local 455 has not lost
its majority status among the former, or present, employ-
ees of Achilles, Achilles had a rationally grounded good-
faith belief that Local 455 no longer had majority status
among its employees. Accordingly, I shall dismiss so
much of the consolidated complaint as it alleges that
Achilles has failed to bargain in good faith in violation of
Section 8(a)(5) with Local 455.
The same conclusion is reached in the case of Peelle.
In June 1975, Peelle had approximately 37 employees.
However, of those 37 employees, the vast majority, 30,
have ceased paying dues and have been suspended from
membership in Local 455. In addition thereto, there are
four employees who, according to the testimony of John
Zito, Local 455 treasurer, have become pensioners. And
two of the employees who are still paying dues are em-
ployed elsewhere in the industry. With regard to the
picketing of Peelle, Henry E. Peelle, Jr., executive vice
president of Peelle, testified credibly that through mid-
1978 the plant was picketed for a few hours approxi-
mately I day a week. Since the court of appeals handed
down its decision on June 30, 1978, there have been no
pickets at the plant. ' 5
Although Peelle had participated in some negotiations
with Local 455 subsequent to the breakup of the mul-
tiemployer bargaining during 1976 and 1977, there has
been no contact since that time.
In view of the diminution of membership in Local 455,
the ending of the picketing, the passage of time, and the
fact that Peelle has entered into no collective bargaining
with any other labor organization and has not committed
any other unfair labor practice leads to the conclusion
that Peelle, like Achilles, had a good-faith doubt based
on objective considerations that Local 455 had not re-
tained its majority status among Peelle's employees. Ac-
cordingly, I shall recommend dismissal of that portion of
the consolidated complaints herein which alleges that
Peelle has unlawfully, in violation of Section 8(a)(5) and
15 I do not credit the testimony of Kenneth Mannsman, business agent
of Local 455, to the effect that picketing took place at the Peelle prem-
ises two or three times a week up to and including July 1979. An em-
ployee of Peelle, Thomas Walsh, testified to the same effect as did Henry
Peelle I find and conclude that his testimony along with that of Henry
Peelle is more accurate than that of Mannsman.
914
K N) S[I'. PRO()DUCTS CORP '
(1) of the Act, refused to bargain with Local 455, and
shall recommend dismissal thereof.
With regard to the allegations of the consolidated
complaint that Achilles has failed and refused to reinstate
its employees to their former or equivalent positions, in
view of the fact that Achilles has been found not to have
committed any unfair labor practices and in light of the
passage of time and, in view of the fact that so few mem-
bers of Local 455 remain as employees of Achilles. the
rest having retired or disappeared, I find and conclude
that although Achilles has failed to reinstate the employ-
ees as requested by the Union, it has not done so unla w-
fully.
With regard to Peelle, the record shows that Peelle
has discontinued much of its operation in the Long
Island, New York, area and has moved most of its fabri-
cating operation to its wholly owned Canadian subsidi-
ary, Peelle Company Limited, located outside of Toron-
to, Canada. The Peelle Corporation in New York was, a
manufacturer of doors, and the work that was being
done in the plant involved in this proceeding on Long
Island has been transferred to the Canadian subsidiary.
Accordingly, for most of Peelle's employees who have
not already returned to work to do warehousing and dis-
tribution, which is the only operation now performed
within the geographical jurisdiction of Local 455, there
is no work in New York. Counsel for the General Coun-
sel and Local 455 would have Peelle offer the employees
employment in Canada. But, according to Henry Peelle,
in addition to everything else that has already been
stated regarding the Peelle situation, the Canadian corpo-
ration is organized by what presumably is another union
not connected with Local 455. Accordingly, to restore
the former employees of Peelle to what their equivalent
position would be in Canada, it would be necessary to
have those individuals hired under whatever arrange-
ment Peelle has with whatever union is representing the
fabricating employees of the Canadian subsidiary.
Accordingly, on the record as a whole, the lapse of
time, the fact that Peelle has been found not to have
committed unfair labor practices, the change in Peelle's
operations, and the fact that Local 455 has not been
active with Peelle in regard to Peelle's employees over
the period of the last 2 years, it is concluded that Peelle
has not refused unlawfully in violation of Section 8(a)(3)
to offer reinstatement to its former employees who are
members of Local 455.
Accordingly, I shall dismiss all of the allegations with
regard to Peelle and to Achilles alleged in both of the
consolidated complaints herein.
5. Respondent Zaffino
Zaffino has not entered into any collective-bargaining
agreement with any labor organization since June 1975.
But, Zaffino is the only one of all of the seven Respond-
ents herein which possibly still retains close to a majority
of Local 455 employees. Nor has L.ocal 455 picketed the
Zaffino premises within the year preceding the hearing
herein, as testified by Sylvio Ruta, a present employee of
Zaffino who went back to work in September 1976.
When Ruta first returned to work, Local 455 picketed
fairly regularly. In 1977 there were a few pickets in the
mornings on occasion. In 1978 Local 455 picketed a few
times. But, in 1979 there was no picketing. Ruta's testi-
mony, as well as that of Zaffino's officials, was also sup-
ported by Robert Catalano, who returned to work for
Zaffino in 1978. He testified that he had seen no pickets
since that date. However, of the eight Zaffino employees
whom the General Counsel alleges have not been rein-
stated, four still retain their membership in Local 455.
In view of this fact, and despite the fact that picketing
has not taken place to any appreciable extent since some-
time in 1978 at Zaffino's plant, I find and conclude that
Zaffino, having been held by the court of appeals to
have committed violations of Section 8(a)(1) and (2) by
assisting Local 810, at a time when it should have been
negotiating with Local 455 through the Association, and
in view of the fact that at least half of Zaffino's current
complement are members of Local 455, I find and con-
clude that Zaffino, for reasons similar to those set forth
hereinabove, with regard to Mohawk and Roman, not
only cannot have a good-faith doubt as to Local 4 55's
majority status, but also is obligated to reinstate its em-
ployees who, upon Zaffino's signing with Local 810.
became unfair labor practice strikers who are entitled to
reinstatement regardless of the fact that they may have
been replaced. Accordingly, Zaffino will be ordered to
reinstate those employees who desire reinstatement to
their former or equivalent positions. Furthermore, the
record shows, that the Zaffino employees who have re-
turned to work are probably not receiving benefits
equivalent to those received before the strike. Accord-
ingly. I would recommend that in a backpay or supple-
mental proceeding to the current case, the current rates
of pay and benefits offered by Zaffino to those employ-
ees who have already returned and those who will be of-
fered reinstatement should be examined for purposes of
disposing of the issue of whether present Zaffino wages
and benefits are adequate to satisfy the reinstatement
order.
IV. IHI EF;IEC 01: lll UNFAIR IA.BOR PRACItICLS
UPON ( ONMth1RCE-
The activities of Respondent, set forth in section 111,
above, occurring in connection with the operations of
Respondent herein, described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. HE REMEDY
Having found that Respondents Zaffino, Mohawk, and
Roman have committed unfair labor practices within the
meaning of the Act, it will be recommended that they
cease and desist therefrom, and take certain affirmative
action designed to effectuate the policies of the Act.
It having been found that Respondents Zaffino,
Mohawk, and Roman have failed and refused to reinstate
their striking employees upon Local 455's unconditional
offer to return to work made on the employees' behalf.
and having found that such refusal is violative of Section
8(a)(3) and (1) of the Act, it will be ordered that the em-
1)15
DECISIONS OF NATIONAL IABOR RELATIONS BOARD
ployees of these three Respondents be reinstated to their
former or equivalent positions, and that they be made
whole for any and all loss of earnings they might have
suffered as a result of the discrimination against them, by
paying to each of them a sum of money equal to that
which each would have earned, but for the discrimina-
tion against them. Backpay shall be computed from
August 9, 1978, with interest thereon, in the manner pre-
scribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation. 231 NLRB 651
(1977). 16
It having been found that Respondent Zaffino has un-
lawfully failed and refused to bargain with Local 455 in
violation of Section 8(a)(5) and (1) of the Act, it will be
ordered that Zaffino cease and desist therefrom, and that
Zaffino recognize and bargain on request with Local 455
as the exclusive bargaining representative of its employ-
ees in the appropriate collective-bargaining unit for a
period of no less than I year from the date on which Re-
spondent Zaffino fully complies with the other terms of
this Order.
Upon the basis of the foregoing findings of fact, and
the entire record in this case, I make the following:
"' See, generally, lis Plumbing & Heating Co., 138 NLRB 716 (1962)
CONCI.USIONS OF LAW
1. Respondents, and each of them, are employers en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 455 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discriminatorily refusing to reinstate their strik-
ing employees on receipt of Local 455's unconditional
offer to return to work made on behalf of their employ-
ees, Respondents Zaffino, Mohawk, and Roman have
violated Section 8(a)(3) and (1) of the Act.
4. By refusing to recognize and bargain with Local
455 as the exclusive bargaining representative of its pro-
duction and maintenance employees, Zaffino has violated
Section 8(a)(5) and (I) of the Act.
5. Respondents Kuno, Peelle, Achilles, and Master
have not committed any violations within the meaning of
the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
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