Lytron, Inc.

National Labor Relations Board - Board Decisions

Nov 26, 1973

207 N.L.R.B. 554 (N.L.R.B. 1973)

554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lytron, Incorporated and Local # 1596, International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America. Case
1-CA-8693
November 26, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On April 27, 1973, Administrative Law Judge
Ramey Donovan issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief. The Board, on
August 27, 1973, issued its Decision and Order' in
which the Board adopted the recommended Order of
the Administrative Law Judge and ordered the
Respondent to take the action set forth in the
Administrative Law Judge's Order.
However, prior to that date, the Board had
received, but through inadvertence was not aware of,
the Respondent's exceptions and brief in support
which had been timely filed. Accordingly, the Board,
on September 7, 1973, issued an Order Vacating
Decision and Order, which vacated the Board's
earlier Decision and Order and stated that the
Respondent's exceptions and brief will be considered
by the Board together with the Charging Party's
exceptions and brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Lytron, Incorporat-
ed, Boston, Massachusetts, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
Administrative Law Judge. we are persuaded that the credited evidence of
what transpired at the negotiating sessions and the Union's written proposal
of May 15, 1972, accepted in writing by the Respondent on May 16,
demonstrate that the parties agreed to a provision stating that , in the case of
a transfer to a higher , lower, or equal labor grade , the senior qualified
employee will be first offered such transfer.
DECISION
RAMEY DONOVAN, Administrative Law Judge: A charge
and an amended charge were filed on November 16 and
December 12, 1972, respectively, by the above Union
against the above employer, Lytron, Incorporated, herein
the Company or the Respondent. The General Counsel of
the National Labor Relations Board issued a complaint on
January 18, 1973, alleging that Respondent had refused to
sign a contract with the Union, the bargaining agent of the
employees in an appropriate unit , notwithstanding that the
terms of the contract had been agreed upon. Such conduct
is alleged to be in violation of Section 8(a)(1) and (5) of the
Act. It is further alleged that a strike was caused by the
aforesaid conduct and that, at the conclusion of the strike,
Respondent has refused to reinstate 18 named employees
to their former or substantially equivalent jobs, all in
violation of Section 8(axl) and (3) of the Act.
Respondent, in its answer, denies the commission of the
alleged unfair labor practices and alleges that the Union
had agreed to certain contract proposals by Respondent
and has refused to embody such agreed-upon proposals in
a written contract. Respondent further avers that the strike
was in violation of Section 8(d) of the Act and that the
employee strikers, having engaged in an illegal strike, are
not entitled to the protection of the Act.
The case was tried in Boston, Massachusetts, on
February 14, 15 and 16, 1973.
FINDINGS AND CONCLUSIONS
1. JURISDICTION
At all times material, Respondent is a Massachusetts
corporation with its principal office and place of business
in Woburn, Massachusetts, where it is engaged in the
manufacture, sale, and distribution of thermal temperature
control units and related products.
In the course and conduct of its business, Respondent
annually ships products valued in excess of $50,000 from
its plant, directly to points outside Massachusetts; and
annually receives goods at its plant valued in excess of
$50,000 shipped directly from outside Massachusetts.
Respondent is an employer engaged in commerce within
the meaning of the Act.
The Union is a labor organization within the meaning of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
1 205 NLRB No. 149.
2 The Respondent 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 Products,
Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings. Like the
207 NLRB No. 88
Since 1966 the Union has been the exclusive bargaining
agent for the employees at Respondent's plant in the
following unit:
All production and maintenance employees, including
materials handlers and leadmen, but excluding all
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
LYTRON, INCORPORATED 555
The May 15, 1970, to May 15, 1972, contract between the
parties contained, inter alia, the following sections:
5.11 Senior employees shall have first option to transfer
to a shift of their choice when there are openings in
their job classification on other shifts.
5.12(a) [not relevant].
(b) The Company may make temporary transfers
for its convenience for periods not to exceed
ninety (90) days. . . . If such transfer is to a job
in the same or lower paying labor grade, the
employee will continue to be paid at his regular
rate. ... In making temporary transfers, the
Company shall determine the classification from
which such transfer is to be made, and in the case
of a transfer to a higher paying labor grade, the
senior qualified employee will be offered such
temporary transfer, and in the case of a transfer
to a lower paying labor grade, the junior qualified
employee will be so temporarily transferred.
In the circumstances of the impending expiration of the
above contract in May 1972, the parties undertook, in
April 1972, the negotiation of a new contract. At the
various meetings between the parties, Strauss, general
manager, was the principal company negotiator and
spokesman. With him were General Foreman McFarlane;
Curtis, a management representative; and Attorney Welch.
Welch was present at most but not all meetings. For the
Union, there was Ofria, chairman of the shop committee;
Ceccaroni, business agent of the Union; Alerio, subregion-
al director of the Union; and three- or four employee
members of the Union's shop committee. Alerio was not
present at all the meetings.
Two or three meetings of a preliminary nature were held
around the middle of April and early May 1972. The
Company and the Union read their respective proposals
and each then submitted the written proposals for changes
in the existing contract and specified the paragraphs
thereof and the proposed changes therein.
Among the company proposals submitted was one
respecting paragraph 5.12(b), second paragraph, of the old
contract. The proposed paragraph was:
In making temporary transfers, the Company shall
determine the classification from which such transfer is
to be made, and in the case of a transfer to a higher
paying labor grade, the senior qualified employee will
be offered such temporary transfer, and in the case of a
transfer to a lower paying labor grade the Company
will have the, right to select the employee to be
temporarily transferred.
The initial union proposal on 5.12(b) was limited to the
first paragraph of that section and no proposal was made
to alter the 'second paragraph of that section in the old
contract.
The parties met on May 8 and 9 and went down the lists
of the two proposals for changes in the old contract. The
effort was to narrow the issues on which they were apart
and apparently some progress was made.'
On May 10, 12, and 15, the parties again met. The
meeting on May 12 was apparently very brief and was
adjourned because of an industrial accident in the plant.2
The three witnesses who testified in this hearing, Ofria and
Ceccaroni, for the General Counsel, and Strauss, for the
Respondent, gave conflicting versions of what transpired
regarding the second paragraph of section 5.12(b). Based
on my observation of the witnesses and an analysis of all
the evidence, it is my opinion that what occurred at the
above meetings, principally on May 10 and 15, is as
follows.
The Company, referring to its proposed change in the
second paragraph of section 5.12(b), said that it wanted
flexibility in making transfers to lower rated jobs and that
is why its proposal would give the Company the right to
select the transferee.3 The Company also stated, and
Strauss testified, that he pointed out that under the old
contract the Company had been picking any available
employee for temporary transfer to lower jobs and had
thus been violating the contract with impunity. However,
the Company wished to change the situation of potential
vulnerability for violating the contract and had therefore
proposed the aforementioned change.
Since the Company's proposal to change the second
paragraph of 5.12(b) had thus, in effect, opened up the
area, the Union, through Business Agent Ceccaroni,
counterproposed that the senior employee should have the
option to make the temporary transfer to the lower rated
job.4 The reasoning advanced for the proposal was that by
having this option, the senior employee would have the
opportunity to take a temporary transfer to a lower job and
thus become qualified in the lower job as well as in his
regular job. In the event of a subsequent layoff this would
be important because, under the contract, in the event of a
layoff, the laid-off employee could bump a junior, employ-
ee if the senior employee was qualified in the junior's job.
The Company, through Strauss, expressed opposition to
the above union proposal and the discussion went back
and forth. No agreement was reached on the disputed
portion of 5.12(b) on May 10.
On May 15, the parties again adhered to their respective
positions on'section 5.12(b). After Ceccaroni had stated the
union proposal that the senior man should have the option
to take a temporary transfer to a lower rated job when the
Company desired to make a temporary transfer, Strauss
turned to General Foreman McFarlane and asked him "if
he could live with it. " 5 ' McFarlane said he could- or said
that he did not have that much trouble with the men and
there should not be any problem and it should be "okay." 6
Strauss then undertook to put in writing "what was agreed
to," but, according to Strauss, "I was having difficulty
writing the words" and it was agreed that Ceccaroni should
1 Ceccarom and Aleno were not present at these meetings.
2 All meetings were held in a room at the plant. -
3 The old contract provided that on a temporary transfer to a lower rated
job the junior employee would be transferred.
4 The parties were in agreement that the portion of the second paragraph
of 5.12(b) in the old contract, providing that the senior qualified employee
"will be offered such temporary transfer" to a higher paying labor grade,
should be continued in the new contract.
5 Quite apparently the general foreman would be the man closest to the
employees in the actual day-to-day work in the plant, including temporary
transfers and so forth.
6 Although he places the matter in a different context, Strauss testified
that he then said, in substance, all right, you will have to live with the
situation.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
draft the terms of the agreement on section 5.12(b)
aforementioned.
At some point in the May 15 meeting, the Union dictated
and gave to the company negotiators a typed document,
entitled "The Union Proposals." Eight items were listed
thereon . One of the items was:
5. Temporary Transfers-modify to provide that
seniority employees will have the option of transfers to
higher, lower, or equal rated jobs. [This is the sec.
5.12(b) proposal.]
Also , on May 15, the Company submitted to the union
negotiators a typed document entitled "The Company
Offer." Five proposed changes in the existing contract were
set forth . Then followed the sentence:
The Company and the Union have agreed to intent on
changing the wording of the following items:
[8 items are listed, among which was item 31
3. Item 5.12(b)
On the next day, May 16, 1972, the Company addressed
the following letter signed by Strauss to its employees:
To: Fellow Employees
Since I spoke to you last I thought it best to advise you
at this time as to the respective positions of the
Company and the Union relative to contract negotia-
tions.
The Company and your negotiating committee met
yesterday. I am attaching a copy of the Union and
Company proposals made at that time [the respective
proposals of May 15 have been described above].
Items 5, 6, and 7 of the Union proposal have been
accepted.
[then are listed 6 main issues still outstanding between
the parties ]
The parties met again on May 17 and 22 at the office of
the Federal Mediation Service. Items 5, 6, and 7 of the
union proposal of May 15 were not discussed since both
sides believed that the Company had accepted these
proposals of the Union. The parties discussed the issues
that were still outstanding and both sides testified that
these issues were resolved. Strauss testified that, at the end
of the last meeting in the Federal Mediation office, the
parties had "reached an agreement" and the negotiators
shook hands with their opposite numbers. Ceccaroni and
Ofria testified to the same effect. As Ceccaroni stated,
"And at the conclusion of the negotiations, the parties, you
7 At no prior meetings had the parties shaken hands at the end of the
particular meeting.
s The Company had approximately 26 or 27 employees.
s The old contract was serving as the basic instrument and the Company
on June 27 had only submitted a draft of the agreed-upon changes and not a
complete contract instrument.
Io Quoted, supra. hereinabove.
11 There was no dispute between the parties that, as in the old contract,
know, shook-showed through this handshake-that nego-
tiations had been concluded and an agreement was
reached." 7 It was mutually understood that the Company
would put the agreements into writing draft the contract,
and submit it to the Union for its perusal.
The following day, Ofria and the union committee told
the union membership of the basic contract package that
had been negotiated by the parties and it was ratified by
the memberships That same day the Company was
advised of the ratification.
Slightly more than a month later, Strauss sent to the
Union seven pages "of the contract changes negotiated
between the parties as finalized on May 22, 1972, and
effective as of May 15, 1972."' The letter concluded:
May we hear from you as soon as possible so that we
can have the contract put in its final form for
publication .9
The portion of the contract changes submitted by the
Company to the Union on June 27, 1972, that dealt with
section 5.12 read:
In making temporary transfers, the Company shall
determine the classification from which such transfer is
to be made, and in the case of a higher paying labor
grade the senior qualified employee will be offered such
temporary transfer, and in the case of a transfer to a
lower paying labor grade, the Company will have the
right to select the employee to be temporarily trans-
ferred.
Upon receipt of the Company's June 27 letter and the
draft of the changes in the contract, Ofria made various
longhand notations on the draft and returned it to the
Company. For instance, in a section dealing with the
composition of the union shop committee, the draft
submitted by the Company provided that the shop
committee was to be composed of "no more than three (3)
employees...." Ofria had crossed out "no more than"
and had written , "a minimum of." On section 5.12 in the
draft,'O Ofria had crossed out various words so that it read:
In making temporary transfers, the Company shall
determine the classification from which such transfer is
to be made and in any case the senior qualified
employee will be offered such temporary transfer.1'
After the foregoing and a few days after receipt of the
June 27 letter and draft from the Company, Ofria met with
Strauss in the plant cafeteria. They went over the draft.
Regarding section 5.12, Ofria said that the draft was wrong
and did not reflect what the parties had agreed to. Ofna
reminded Strauss that they had agreed that the senior
employee would have the option, in the case of a
temporary transfer, to transfer to higher, lower, or equal
rated jobs. Ofria had a copy of the union proposal of May
15 where this option was stated.12 At this juncture,
McFarlane, a member of the Company's negotiating team
was passing by. Ofria called him over. Ofria said to
the senior employee would be offered any temporary transfer to a higher
rated job. It was the Union's belief and position that, in the current
negotiations, the Company and the Union had agreed in May that the
senior employee would likewise have the option to transfer to a lower rated
job when a temporary transfer to such a job arose.
i2 The company acceptance of this proposal has previously been
described.
LYTRON, INCORPORATED 557
McFarlane, you remember that the senior man was to have
the option to transfer to high, low, or equal rated jobs on a
temporary transfer . McFarlane said, yes, we did agree to
the senior having that option. According to Ofria, Strauss
said, okay, there will be no problem . It was understood
that Strauss would redraft the contract and submit a
complete contract , not just the changes in the old contract,
to the Union.
Strauss' version of the above incident is that, when Ofria
stated his understanding of what had been agreed upon,
Strauss said "that wasn't what I thought we had agreed to
and that I wanted to talk to Jimmy (McFarlane] and
Woody [Curtis] about it because they were involved in the
discussion [of 5.12 in the May 10 and 15 negotiations]."
Strauss does not assert that in this discussion he told Ofria
what he, Strauss, thought had been agreed upon , nor does
Strauss- admit or deny that Ofria had called McFarlane
into the discussion and that the latter had affirmed Ofria's
version of the agreement . According to Strauss , he told
Ofria at the end of this post-June 27 discussion that he
would get back to him ; i.e., he would be in touch with him.
The next communication from the Company to the Union
on the matter of the contract did not occur until August
1972 , when the Company gave the Union a complete
contract draft . McFarlane , the general foreman, was not
called as a witness by Respondent and neither controverts
the union version of what McFarlane said on May 10 or 15
or at this session a few days after June 27; nor does
McFarlane corroborate Strauss on any aspect of his
testimony . I credit Ofria's version of what occurred in this
June discussion, a few days after June 27.
Before proceeding further in a chronological description
of events , it is appropriate to comment on the principal
contention of Respondent's witness , Strauss.
As contrasted with the version that I have credited
regarding the May 10 and 15, 1972, meetings, Strauss
asserts that, when the Union opposed the company
proposal on section 5.12(b), the Company have the right to
select the employee to be temporarily transferred to a
lower rated job, Strauss offered to give the senior employee
the right to decline such a transfer . The Union allegedly
agreed to this. Strauss contends that he turned to
McFarlane and ' Curtis and asked them if they could live
with such a qualification and they each said, yes.
According to Strauss, he then said , "Okay, you agreed to it
and you are going to have to live with it." Thereafter, on
May 16 and at succeeding times, when Strauss agreed to
the union language , i.e. "Temporary Transfer-modify to
provide that seniority employees will have the option of
transfers to higher, lower, or equal rated jobs," he asserts
that this meant to him no more than that the senior
employee had the right to decline such a transfer.
'Among the reasons why I rejected the foregoing version
was the fact that under the old or existing contract
provision of 5.12(b), the senior employee already had the
right to decline such a transfer since it was provided that
on temporary transfers to lower rated jobs the junior
employee was to be transferred . The right to decline,
therefore, which Strauss claims he offered on May 10,
would hardly be expected to be regarded by the Union as a
major concession. Moreover, Strauss' alleged concession
ignored the Union's proposal or demand that the senior
employee have the option to transfer to a lower rated job
on a temporary transfer so that he might become qualified
on other jobs and so be in a better position in the event of a
layoff. It also seems unlikely that, after proposing to the
Union that the senior employees have the right to decline a
transfer to a lower job and the Union's alleged acceptance,
Strauss should ask his subordinates, such as McFarlane,
whether they could live with Strauss' own proposal.
Further, McFarlane and the Company had already been
living with the senior employee's contractual right to
decline such a transfer for the entire period of the expiring
contract . It is much more reasonable to conclude , as Ofria
testified, that it was with respect to the union proposal that
the senior employee should have the right to transfer
temporarily to a lower job or equal job , as well as have the
existing admitted right to transfer to a higher job, that
Strauss asked McFarlane if he could live with it and
McFarlane said yes.
I believe that the written language agreed to by Strauss
on May 16 in his letter to the employees is more reasonably
to be construed as an option to transfer, i.e., to take the
transfer or to decline it, rather than as an , option limited to
declining.
It is also the fact that the parties were familiar with the
term "option," including its use in both the old contract
and in drafts of the new contract. Thus, section 5.11 of the
old contract provided:
Senior employees shall have the first option to transfer
to a shift of their choice when there are openings in
their job classifications on other shifts.
This section 5.11 was incorporated verbatim and by mutual
agreement in all drafts of the new contract prepared by the
Company both in June and in August 1972. The "option"
was quite clearly not limited to the right to refuse . Further,
the draft of section 5 . 12(b) prepared ' by Strauss and
submitted to the Union on June 27 contains no mention of
the senior employee 's right to decline a temporary transfer
to a lower job, although Strauss claims that it was this
proposal of his that the parties had previously agreed to.
Since the June 27 draft of 5.12 was , in 'substance, the
original company contract proposal of April 18, 1972,
giving to the Company the unqualified right to transfer
whomever it wished to lower jobs on a temporary transfer,
it is apparent, in my opinion , that Strauss did not believe
that in May the parties had agreed that the senior
employee was to have the right to decline such a transfer. If
the latter had been , as claimed, the May 10 company
proposal that had been accepted by the Union, the
Company would presumably have placed it in its June 27
draft . As for the reversion to the original April 18 company
proposal and the total omission of the agreement that the
parties had reached on May 15 and 1'6, this can most
reasonably be explained by the fact that, subsequent to the
agreement , Strauss found the agreement to be unpalatable
and sought to evade it.
Without recounting other factors, I also mention the
testimony that McFarlane, shortly after June 27, had
affirmed that the parties had previously agreed that the
senior employee was to have the option to transfer on
temporary assignment to a higher , equal , or lower job.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McFarlane, a member of management, was not called as a
witness to controvert this testimony nor was he called to
corroborate Strauss in any respect as to important matters
in May, June, or thereafter.13
We return now to the chain of events after June 27, when
Ofria had pointed out to Strauss that the Company's June
27 draft of section 5.12 of the contract did not conform to
the agreement previously reached by the parties. The next
event occurred sometime in August 1972, when the
Company submitted a complete contract draft to the
Union. This draft, in section 5.12(b), contained for the first
time what Strauss testified at the hearing had been the
agreement of the parties on May 10, 15, and 16. The
pertinent part of the section in the August draft read:
In the case of a transfer to a lower paying labor grade,
the Company will have the right to select the employee
to be temporarily transferred, however, a senior
employee has the right of refusal.
Ofria and Strauss met together in the plant on September
7 and evidently again in, the latter part of September. The
principal issue was the above 5.12(b) section. Ofria
contended that the draft did not reflect the agreement of
the parties that the senior employee was to have the option
to take a temporary transfer to a lower, higher, or equal
job. Strauss contended that the draft reflected the
agreement that the senior man had only the right to refuse
the transfer if the Company selected him. There was also
some discussion of the R and D provision. This pertained
to research and development employees. This was one of
the issues that both parties considered to have been settled
on May 22 at the meeting in the federal Mediation office.
On October 10 the full committee of both parties met
together. The Union, through Ofria and Ceccarom,
adhered to their contention that the Company had agreed
to give the senior man the option to transfer to a higher,
lower, or equal job. They endeavored to refresh Strauss'
recollection of how he had agreed after he had asked
McFarlane if he could live with the proposal and
McFarlane had said yes. Strauss adhered to his position.
But neither the testimony of Strauss nor of anyone else
reflects that McFarlane, who was also present on October
10, as well as at the May meetings, spoke up on October 10
in support of the Strauss version, and, as we have seen,
McFarlane did not testify at the instant hearing. The
foregoing 5.12(b) matter was the only issue remaining at
the end of the October 10 meeting. As Strauss testified,
"... we were still apart on 5.12(b) and that was really the
only issue after they dropped the R & D thing."
A meeting on October 11 found the parties in the same
respective positions regarding 5.12(b). The Company
proposed going back to 5.12(b) under the old contract
wherein the junior employee was to be given any
temporary transfer to a lower rated job.14 The Union
refused and also rejected outside mediation.
Strauss then caucused with the company people and it
13 Speaking of the adverse inference rule, the Court of Appeals for the
District of Columbia (International Union, UAW [Grodyne Co] v. N LR.B,
459 F.2d 1329, 1338 (1972)), has stated:
The theory behind the rule is that, all other things being equal, a party
will of his own volition introduce the strongest evidence available to
prove his case. If evidence within the party's control would in fact
strengthen his case, he can be expected to introduce it ....
was decided not to yield on the matter of 5.12(b). This
decision was made although Strauss states that he advised
the caucus that "it would probably mean a strike.""
The strike by the Union began on October 12. The strike
occurred because the Union believed that the Company
had reneged on what the Union considered was a clearly
established agreement by both parties that the senior man
would have the option to transfer to a higher, lower, or
equal job when a temporary transfer was offered.
The parties met a total of two or three times around the
middle of November and early December. The issue and
the positions of the parties remained the same. At one of
these meetings the Union proposed arbitration of the issue
between them. According to Ofria, the Company, through
Strauss or Welch or both; refused to arbitrate, saying it
would be foolish to do so in view of the company letter of
May 16 (in which Strauss agreed to the union proposal that
the senior man was to have the option of transfer to higher,
lower, or equal jobs). On direct examination by Respon-
dent's counsel, Strauss was asked:
Q. Did Mr. Welch say anything about a letter that
you had written and there would be no point in going
to arbitration on account of that letter?
A. I can't remember that, whether he did or he
didn't ....
The strike did not succeed in obtaining its objective, a
contract with the 5.12(b) provision that the Union
contended had been agreed to by the Company. The strike
ended on December 11, 1972, and the employees sought to
return to work unconditionally on that date. The Company
read a notice to the employees at the time which stated:
We understand you are all coming back to work.
Unfortunately, we do not have jobs for all at this time.
In order to fill the open jobs, we will sit down with the
committee and determine through the seniority list who
will start work today. For those of you for whom there
is no work available, we will notify you as soon as there
is an opening ....
The Company had hired no new employees during the
strike. Strauss testified regarding loss of business during
the strike and changes made during the strike in the
production process and job alignments.' Some strikers were
reinstated on December 11, ' 1972, while others were
recalled at various dates thereafter. Not all employees who
were put back to work were reinstated to their former jobs
and some received lower, rated jobs. Some jobs had been
eliminated or reduced in number. Eventually all strikers
had been offered reemployment or had notified the
Company that they were not returning.15
Before concluding this portion of the Decision, it is
appropriate to mention that after May 22, 1972, when both
sides had shaken hands and believed that they had agreed
on a contract, provisions of the new contract were placed
in effect and continued up to and including the date of
Conversely, if such evidence is not introduced , it may be inferred that
the evidence is unfavorable to the party suppressing it.
14 Strauss testified that neither party actually wanted the former contract
provision.
15 One employee in the unit had not gone on strike. Four strikers
returned to work prior to December 11.
LYTRON, INCORPORATED 559
hearing. For instance, the new wage rates and subsequent
cost-of-living increases were made effective after May 22.16
Other provisions were also made effective, such as posting
of overtime. With respect to temporary transfers to lower
rated jobs during the post-May 22 period, Strauss testified
that the Company picked "who was available." In
instances of this nature that Strauss recalled, he testified
that there were cases "where we didn't pick the junior man.
There were cases where we picked the, you know, a senior
man, but not the most senior man ..... Ofria testified to
instances since May 22, where, on a temporary transfer to
a lower job, General Foreman McFarlane, after being
reminded of the senior option agreement, offered the
transfer to the senior man and thence in descending order
of seniority. McFarlane had told Ofria that he had done
this.
Conclusions
Without recapitulating the evidence, it is my opinion that
by May 16, 1972, the parties had reached an agreement on
section 5.12(b) of the contract as set forth in the Union's
written proposal of May 15 and as confirmed by Strauss'
letter of May 16. In the context of all the evidence, it is my
opinion, that the agreement on that section is shown to be
an agreement, in substance, to the following effect: In
making temporary transfers, the Company shall determine
the classification from which such transfer is to be made,
but the senior qualified employee, in the case of a transfer
to a higher, lower, or equal labor grade, will be offered the
transfer and shall have first option to transfer to such
aforementioned labor grade. I am persuaded that the
evidence of what transpired at the May 10 and 15 meetings
and the union written proposal of May 15, accepted in
writing by the Company on May 16, demonstrates that the
option of the senior employee to transfer to a higher, lower,
or equal job was understood and agreed to as I have set
forth the agreement above. The term "option" that was
used in the union proposal and agreed to by the Company
was a term comprehended by the parties. I note that
section 5.11 of the old contract that was incorporated
verbatim, without dispute, in the June 27 and August
contract drafts prepared by the Company, used the term
"option" in the same manner in which I believe the parties
had agreed to use the term in section 5.12(b). Thus 5.11
provided:
Senior employees shall have first option to transfer to a
shift of their choice when there are openings... .
On May 22, both parties believed that they had reached
agreement on' a complete contract. Subsequently, when the
contract drafts prepared by the Company failed to reflect
the agreement of the parties of section 5.12(b), the
bargaining process was frustrated. While there were some
minor problems of phraseology and wording regarding
other sections, they were not, in my opinion, major
obstacles to the consummation and signing of a contract.
Any discussions that subsequently arose regarding sections
other than section 5.12(b) were eventually fruitful or
resulted in adjustment, so that before the strike section
5.12(b) remained the sole issue in dispute . Both parties
were aware that the dispute over 5.12(b) was the cause of
the strike.
This case does not present the situation of a party that
having admitted that it did agree and with reasonable
promptness informs the other party at a subsequent session
that, upon further study and consideration, it is unable to
agree to that provision and states its reasons therefor.
Depending on all the facts and circumstances , I do not
believe that such a change in position would necessarily
equate with bad faith . But the instant case presents the
issue of the Company denying that it had agreed to a
provision, where, in my opinion, the evidence shows the
contrary . Consequently , there is a reneging on an agree-
ment-and this , as I view the situation , is not compatible
with good-faith bargaining. The natural and forseeable
result of such an action by either party, and in this case it is
the Company, is the poisoning and frustration of the
bargaining process . This is confirmed in the case before us
and it was the reneged upon section 5.12(b) agreement that
caused the strike . I find a violation of Section 8(a)(1) and
(5) of the Act and I find that the strike was an unfair labor
practice strike.
The strikers, therefore, upon termination of the strike
and unconditional application for reinstatement, were
entitled to reinstatement to their former jobs . Inasmuch as
not all, and, indeed, many of the strikers , were not
reinstated to their former jobs , and since Respondent
excluded a nonstriker and four earlier returned strikers
from competition with the strikers at the end of the strike
for such jobs as were available , I find a violation of Section
8(a)(1) and, (3) of the Act by reason of the failure to
reinstate strikers to their former jobs . I do not agree with
the contention of Respondent in its brief that the
nonstriker should be considered "a permanent replacement
for a striker."
CONCLUSIONS OF LAW
Respondent has violated Section 8(aX1) and (5) of the
Act by failing and refusing to bargain in good faith with
the Union, the collective-bargaining agent . Respondent
had violated Section 8(a)(1) and (3) of the Act by failing to
reinstate unfair labor practice strikers to their former or
equivalent jobs upon the conclusion of the strike and upon
unconditional requests for reinstatement.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it cease
and desist therefrom and take affirmative action to remedy
the effects of its illegal conduct.
The appropriate affirmative action is that Respondent,
upon request, shall complete the consummation of a
contract with the Union, with the contract embodying the
matters heretofore negotiated, resolved, and agreed on by
the parties, 'including section 5.12(b). The latter section is
to be drafted in terms consistent with the findings in this
16 As Strauss testified , "We thought we had an agreement with the
Union and we were, you know, following the contract, the new contract
provisions ... .
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decision regarding the agreement of the parties on section
5.12(b).
Since the strike has been found to be an unfair labor
practice strike, the strikers, upon their unconditional
application to return to work on December 11, 1972, were
entitled to reinstatement to their former jobs, displacing, if
necessary, any replacements hired during the strike. The
evidence is that the strikers, admittedly, were not all
reinstated to their former jobs upon application, and, in
allocating jobs, Respondent used a formula that excluded a
nonstriking employee and a few earlier returned strikers
from competition with the balance of the strikers for the
jobs available at the end of the strike and at the time of
application for reinstatement. The order therefore will
encompass a failure to reinstate unfair labor practice
strikers to their jobs at the end of the strike and upon
unconditional application for reinstatement and will also
encompass a provision for reimbursement for a loss of
earnings , if any, that may have been incurred by the
strikers by reason of the failure to reinstate to jobs that
may have been available.
Respondent has introduced evidence in the instant
hearing with respect to loss of business and other changes
in its operations that, it contends, affected the number and
types of jobs available to the returning strikers and also
affected the time of the availability of such jobs. Whether
or not Respondent has complied with the order in this case
to reinstate the strikers to their former jobs, after the strike
was ended and the strikers applied for unconditional
reinstatement, will be a matter of compliance. Generally
speaking, if jobs have diminished during a strike because of
legitimate economic reasons, the remaining jobs are to be
fairly apportioned among the employees, including the
strikers.
ORDER 17
Respondent, Lytron, Incorporated, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with Local 1596,
International Union, United Automobile, Aerospace, and
Agricultural Implement Workers of America by reneging
on contractual agreements mutually agreed upon during
negotiations.
(b) Discriminating against employees who are unfair
labor practice strikers by failing to reinstate them to their
former jobs upon their unconditional application at the
end of the strike.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Upon request, bargain in good faith with Local 1596,
aforementioned, by completing the consummation of a
contract with said union, with the contract embodying the
matters heretofore negotiated, resolved, and agreed on by
the Respondent and the Union, including section 5.12(b),
with the terms and provisions of that section being
consistent with the prior agreement of the Respondent and
the Union, as found in this Decision.
(b) Offer to the employee strikers who applied uncondi-
tionally for reinstatement at the end of - the strike on
December 11, 1972, reinstatement to their former or
substantially equivalent jobs, without prejudice to their
seniority and other rights and privileges, and make them
whole for any loss of earnings they may have suffered if
such jobs were available and if the strikers were denied
reinstatement thereto without legitimate legal justification.
In the event that the former jobs were, or are, no longer
available because of legitimate economic considerations,
the jobs that were or are available are to be allocated
among all unit employees on a fair and nondiscriminatory
basis.
(c) Post at its Woburn, Massachusetts, plant, copies of
the attached notice marked "Appendix." 18 Copies of said
notice on forms provided by the Regional Director, for
Region 1, after being signed by Respondent's representa-
tive, shall be posted by Respondent immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken to ensure that such notices
are not altered, defaced, or, covered by other material.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
records necessary to analyze the matter of the availability
of jobs and the loss of earnings, if any, that may be due to
the strikers.
(e) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps
Respondent had taken to comply herewith.
17 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
18 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties participated and were
represented by their attorneys, it has been found that we
have violated the National Labor Relations Act in certain
respects. We therefore advise you that:
WE WILL NOT refuse to bargain in good faith with
Local 1596, United Automobile, Aerospace, and
Agricultural Implement Workers of America, by
reneging on contractual agreements that have been
mutually agreed on during contract negotiations.
WE WILL, upon request, bargain in good faith with
Local 1596 by completing the consummation of a
contract with said union, with the contract embodying
the matters previously negotiated, resolved, and agreed
LYTRON, INCORPORATED
on by the Company and Local 1596, including section
5.12(b), as found in the Decision rendered after the
above trial of the issue.
WE recognize our obligation to offer reinstatement
to the strikers who applied for reinstatement at the end
of the strike on December 11, 1972, and we will fulfill
that obligation in accordance with the Order in the
Decision of this case and if any earnings of strikers
have been lost by reason of our failure to perform our
aforesaid obligation to reinstate, we will make whole
the strikers for the lost earnings.
Dated By
561
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Seventh Floor-Bulfinch
Building, 15 New Chardon Street, Boston, Massachusetts
02114, Telephone 617-223-3300.
LYTRON, INCORPORATED
(Employer)