331 N.L.R.B. 866 (N.L.R.B. 2000)

National Metal Processing

National Labor Relations Board - Board DecisionsJul 26, 2000

331 N.L.R.B. 866 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 866 National Metal Processing, Inc. and Amstaff, Inc. and Local 7267, United Paperworkers International Union, AFL–CIO. Case 7–CA–34299 July 26, 2000 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND LIEBMAN Based on a charge and an amended charge filed by the Charging Party, Local 7267, United Paperworkers Interna- tional Union, AFL–CIO (the Union), on March 3 and June 28, 1993, respectively, the Regional Director for Region 7 issued a complaint on June 20, 1995, alleging that the Re- spondents, National Metal Processing, Inc. (National) and Amstaff, Inc. (Amstaff), violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union about the reinstatement of employees who had been unlawfully locked out of their jobs. Thereafter, Respondents National and Amstaff separately filed timely answers, admitting in part and denying in part the allegations in the complaint, but denying the commission of any unfair labor practices. On March 20, 1997, the parties filed a motion to transfer case to the Board and for decision based on stipulated re- cord. The parties agreed that the stipulation of facts and attached exhibits constitute the entire record in this case, and that no oral testimony is necessary or desired by any of the parties. The parties waived a hearing before, the making of findings of fact and conclusions of law by, and the issuance of a decision by an administrative law judge. The parties stated their desire to submit this case directly to the Board for findings of fact, conclusions of law, and the issuance of a Decision and Order. On July 16, 1997, the Executive Secretary, by direction of the Board, issued an order granting the motion, approving the stipulation, and transferring the proceeding to the Board. Thereafter, Respondent National, Respondent Amstaff, and the General Counsel filed briefs. The National Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. On the entire record and briefs, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION At all material times, Respondent National, a corporation, with an office and place of business in Detroit, Michigan, was engaged in the manufacturing process of “pickling” steel for use as automobile bumpers. During the calendar year ending December 31, 1994, a representative period, Respondent National, in the course and operation of its business, purchased and received at its Detroit, Michigan facility, goods and materials valued in excess of $50,000 which were shipped directly to its facility from points out- side the State of Michigan. At all material times, Respondent Amstaff, a corporation, with an office and place of business in Novi, Michigan, was engaged in the operation of a personnel leasing company. During the calendar year ending December 31, 1994, a rep- resentative period, Respondent Amstaff provided employee leasing services valued in excess of $50,000 to its customer, Respondent National, an employer directly engaged in in- terstate commerce. The parties have stipulated, and we find, that Respondent National and Respondent Amstaff are each an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organi- zation within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Facts The following employees constitute an appropriate bar- gaining unit within the meaning of Section 9(b) of the Act: All production and maintenance employees, including truckdrivers and shipping and receiving employees employed by National Metal Processing, Inc. at its fa- cility located at 6440 Mack Avenue, Detroit, Michigan; but excluding office clerical employees, guards, and supervisors as defined in the Act. On January 30, 1974, pursuant to a Board-conducted elec- tion, Local 267, International Union, Allied Industrial Workers of America, AFL–CIO (AIW Local 267) was cer- tified as the exclusive 9(a) collective-bargaining representa- tive of the employees in the above unit, when located at National’s former manufacturing facility. In September 1993, AIW Local 267’s International parent union merged with the United Paperworkers International Union, AFL–CIO. As a result, since September 23, 1993, the Union has been the successor union to AIW Local 267. Since that date, the Union has also been the exclusive col- lective-bargaining representative of employees in the pro- duction and maintenance unit at National’s plant. Commencing about March 4, 1988, National ceased di- rectly employing production and maintenance employees. Instead, it used the services of successive personnel leasing firms to supply it with production and maintenance employ- ees for work at its steel-pickling facility. One of those firms, Branch International Services (Branch), entered into a personnel leasing service agreement with National in 1990. Branch recognized AIW Local 267 as the representative of the unit of employees employed by Branch to work at Na- tional’s facility. Branch also assumed a collective- bargaining agreement then in effect between AIW Local 267 and a predecessor personnel leasing firm. This labor agreement had an expiration date of March 4, 1991. About December 5, 1990, representatives of AIW Local 267, Branch, and National entered into an agreement which provided, inter alia: In the event that BRANCH for any reason ceases to be the employer of persons in the bargaining unit at the Detroit plant of NATIONAL, NATIONAL shall forthwith recognize the UNION as the exclusive bar- 331 NLRB No. 105 NATIONAL METAL PROCESSING, INC. 867 gaining representative of employees in the appropriate unit; and it shall honor and assume any collective- bargaining agreement in force and effect between BRANCH and the UNION; and further, NATIONAL shall assume any outstanding liabilities and obligations under the Collective-Bargaining Agreement . . . . Shortly before March 5, 1991, Branch informed National that it intended to lock out the unit employees at National’s plant and to continue operations using replacement employ- ees. In Branch International Services, 310 NLRB 1092 (1993), enfd. mem. 12 F.3d 213 (6th Cir. 1993). The Board found that the ensuing lockout was unlawful. The Board ordered Branch, as part of the remedy for its unfair labor practices, to offer reinstatement to the locked-out employees and to make them whole for lost earnings and benefits. Neither of the Respondents here, National and Amstaff, was a party in that proceeding. The administrative law judge’s decision in Branch specifically noted that National was not alleged or shown to be a single or joint employer with Branch. 310 NLRB at 1094. By letter dated May 19, 1992, Branch informed National that it was canceling its lease effective August 8, 1992. National thereafter discussed entering into a leasing agree- ment with Respondent Amstaff. Sometime between June and August 1992, National officials informed Amstaff offi- cials that there had been some problems involving Branch and the Board stemming from Branch’s lockout of employ- ees working at National’s plant. In early August 1992, Amstaff President Gregory Packer spoke to the production and maintenance employees then employed at National’s plant and informed them that Am- staff would hire all of them at the same wages they were currently earning and with the same vacation benefits. Packer told them they would receive different life insurance and health insurance benefits. Amstaff initially hired all but 2 or 3 of the approximately 65 unit employees working for Branch at National’s plant in August 1992. All of these employees hired by Amstaff had been hired originally by Branch as replacements for the employees that Branch had unlawfully locked out. Amstaff also hired four of the first- line supervisors working for Branch at the National plant. Later, Amstaff hired two of the three unit employees not initially hired as well as several of the locked-out employ- ees. About August 14, 1992, National and Amstaff formally executed a personnel-leasing agreement, which was effec- tive from August 7, 1992. The operations of National’s plant continued without hiatus during the transition from Branch to Amstaff. The General Counsel does not contend that Branch and Amstaff engaged with each other in any negotiations or other direct business dealings when Amstaff succeeded Branch as the lessor of unit employees at Na- tional’s plant. Furthermore, the General Counsel does not contend that Branch and Amstaff have common ownership, or common corporate officers, or directors between them- selves, or between National and either of them. An August 25, 1992 letter from AIW Local 267 to Na- tional, asserted that National was the employer of the unit employees and was obligated to recognize and bargain with the Union. A September 9 letter from AIW Local 267 to National reiterated the recognition demand and added a request that National reinstate the employees locked out by Branch. Representatives of National and AIW Local 267 met sometime in September or October 1992. At that time, AIW Local 267 demanded that National reinstate the locked-out employees and repeated its demand that National negotiate with it for a new contract. At that meeting, as well as in a letter dated October 16, 1992, Respondent National suggested that AIW Local 267 speak to representatives of Amstaff. Representatives of AIW Local 267 and Amstaff did meet on about December 8, 1992. AIW Local 267 presented contract proposals, including a proposal that Amstaff rein- state the locked-out employees. Amstaff’s attorney stated that Amstaff had nothing to do with the lockout and there- fore did not feel obligated to return the locked-out employ- ees to work. He also stated that he needed time to review the Union’s proposals and suggested that the parties meet again in several weeks. When these parties met again on January 11, 1993, Am- staff submitted written counterproposals. AIW Local 267 repeated its demand that Amstaff reinstate the locked-out employees and bargain about their terms and conditions of employment, and Amstaff repeated its refusal. Amstaff also rejected AIW Local 267’s proposal that Am- staff enter into a three-party agreement with it and National, similar to the agreement which this Union, National, and Branch had entered in 1990. Amstaff indicated that it was ready to negotiate a labor agreement for the bargaining em- ployees whom it currently employed. AIW Local 267’s representative, William Lange, asserted that Amstaff’s re- fusal to reinstate the locked out employees was unlawful and that AIW Local 267 would file unfair labor practice charges. In a letter dated February 1, 1993, Amstaff invited AIW Local 267 to bargain further. AIW Local 267 did not reply to that letter or attempt to arrange any further negotiating sessions with Amstaff. National and Amstaff maintained their personnel leasing arrangement from August 1992 until December 31, 1995. During this time, the degree of control and supervision ex- ercised by National over Amstaff’s employees at National’s facility was the same as that exercised by National over Branch’s employees at the same facility. Amstaff, and not National, (1) made all decisions relating to hiring and firing, without recommendations by National; (2) determined unit employees’ wage rates and benefits; (3) determined unit employees’ job duties, rules of conduct, and working condi- tions; (4) decided the number and identity of employees to be laid off and recalled; (5) by Amstaff’s on-site plant man- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 868 ager, Joseph Pulis, made all staffing and scheduling deter- minations, decided whether the customers’ production needs necessitated overtime, and ordinarily scheduled over- time without prior consultation with National’s president, James Aleksa;1 (6) decided whether to grant unit employ- ees’ vacation requests and oversaw the scheduling of such vacations; (7) decided whether to grant sick leave and time off requests, formulated attendance policies, and carried out rules relating to attendance; (8) made and effectuated all unit employee disciplinary decisions,2 including whether to reinstate discharged employees; (9) provided direct and daily supervision of the unit workforce; (10) compensated the unit employees, was responsible for withholding and remitting required payroll taxes and preparing and submit- ting relevant tax returns, and represented the employer in unemployment compensation hearings; (11) employed a safety and loss control administrator who supplied Pulis with recommendations regarding unit employee safety is- sues and who promulgated safety rules and modified pro- duction processes to improve safety, consulting with Na- tional only where such modifications required significant capital expenditures by National;3 and (12) if production was interrupted due to equipment failure or other cause, determined whether work shifts would be added or overtime required in order to meet customers’ needs. In addition, after Aleksa met with Pulis to review customer satisfaction concerns, Pulis alone determined what personnel actions were necessary. For example, when National decided to institute a quality control system to improve customer satis- faction, Pulis developed the system and caused Amstaff to hire a quality control manager and lab technicians without further input from National. Pulis also conducted quality control meetings when he considered them appropriate, without further involvement by National.4 1 Aleksa determined production and shipping priorities, based on the needs of National’s customers, and communicated those priorities to Pulis. From this information, Pulis and, not National, made all staffing and scheduling determinations, such as the number of unit employees to utilize on a given work shift, and the work hours for each employee. In those instances when Pulis determined that unanticipated or substan- tial overtime was required, he first informed Aleksa of the added cost that National would incur. Aleksa then decided whether National would absorb the added overtime cost or would instead secure the customer’s permission for a later delivery. Pulis would decide the personnel consequences of Aleksa’s decision, such as scheduling, ad- justment of hours, and staffing. 2 Although the written leasing agreement between National and Am- staff provided that National may suspend employees for periods not to exceed 3 days, National neither exercised nor attempted to exercise that provision. 3 National, as owner of the building and equipment of the Detroit steel-pickling plant, would also alert Amstaff representatives of em- ployee practices that could lead to safety problems. Amstaff alone decided what personnel actions, if any, to take to ameliorate the prob- lems. For instance, following a serious employee injury, Amstaff se- cured a trauma counselor to assist the employees in dealing with the event. 4 When Aleksa determined that customer satisfaction would be en- hanced by offering quality control training, Pulis, then employed as The contractual relationship between Amstaff and Na- tional ended on December 31, 1995. National then con- tracted with another employee leasing agency, HCR4, which performed the same functions for National that Branch and Amstaff had performed during their tenures. The steel-pickling business of National ended at the De- troit facility in March 1996. In August 1996 the entire facil- ity was leased to a firm which is not a party to this proceed- ing. B. Contentions of the Parties The General Counsel contends that Amstaff, as a succes- sor to Branch under the principles set forth in NLRB v. Burns Security Services, 406 U.S. 272 (1972), was obligated to recognize and bargain with AIW Local 267 (and, follow- ing the September 23, 1993 merger, the Union) as the ex- clusive collective-bargaining representative of the produc- tion and maintenance employee unit at National’s “steel pickling” plant. The General Counsel further argues that National is a joint employer with Amstaff of the bargaining unit employees. The General Counsel then contends that the reinstatement of unit employees who were unlawfully locked out by Branch is a mandatory subject about which Amstaff and National had a statutory obligation to bargain. Alternatively, the General Counsel contends that Amstaff bears remedial responsibility as Branch’s successor for the reinstatement of unlawfully locked-out employees under the principles of Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973). In this regard, the General Counsel argues that this case is either distinguishable from Glebe Electric, 307 NLRB 883 (1992), where the Board refused to extend Golden State liability to a company that lacked any business relationship to the predecessor entity that committed unfair labor practices, or the Board should take this occasion to reexamine the holding in Glebe Electric. Under either suc- cessorship theory of violation, the General Counsel seeks through the complaint and through argument in his brief to the Board only a finding that Amstaff and National unlaw- fully refused to bargain about the subject of reinstating em- ployees locked out by Branch. There is no contention that the Respondents unlawfully refused to reinstate these em- ployees. For its part, National denies any joint employer relation- ship with Amstaff and any remedial responsibility for Branch’s unfair labor practices. Amstaff contends that rein- statement of the unlawfully locked-out employees is not a mandatory subject of bargaining. It further contends, rely- ing on Glebe Electric, supra, that it can have no remedial bargaining liability on this subject. C. Discussion 1. Was National a joint employer with Amstaff of unit employees? Branch’s plant manager, arranged for and scheduled employee training through National’s principal customer, Great Lakes Steel. NATIONAL METAL PROCESSING, INC. 869 As summarized in Laerco Transportation, 269 NLRB 324, 325 (1984): The joint employer concept recognizes that two or more business entities are in fact separate but that they share or codetermine those matters governing the es- sential terms and conditions of employment.10 Whether an employer possesses sufficient indicia of control over . . . employees employed by another employer is essen- tially a factual issue. To establish joint employer status there must be a showing that the employer meaning- fully affects matters relating to the employment rela- tionship such as hiring, firing, discipline, supervision, and direction. 10 Boire v. Greyhound Corp., 376 U.S. 473 (1964); NLRB v. Brown- ing-Ferris Industries, 691 F.2d 1117 (3d Cir. 1982), enfg. 259 NLRB 148 (1981). In examining the relationship between National and Am- staff, we find that National did not possess sufficient control over Amstaff employees to support a joint-employer find- ing. The stipulated facts show that Amstaff officials, prin- cipally including Plant Manager Pulis, exercised virtually total control over all aspects of the terms and conditions of employment of the unit employees, included their hiring, firing, wage rates and benefits, job duties, rules of conduct, layoffs, overtime, vacations, sick and other leave, discipli- nary actions, direct and daily supervision, all matters relat- ing to compensation, safety rules, interruption of produc- tion, and work shifts. In those few instances in which National officials may have affected unit employees, they did so only indirectly. The stipulated record contains examples of limited situa- tions in which Amstaff would consult with National prior to incurring overtime expenses, implementing safety proce- dures, or responding to customer satisfaction concerns. In each example, however, Amstaff officials would unilater- ally determine the personnel consequences for unit employ- ees. In fact, it appears that the sole control possessed by National over unit employees was the right in its leasing agreement with Amstaff to suspend employees for up to 3 days. National never attempted to exercise that authority. In sum, the evidence shows that Amstaff exercised virtu- ally exclusive control over all major elements of the terms and conditions of employment of the unit employees and that National’s input was scant and largely indirect. We find it clear that National did not share or codetermine es- sential terms and conditions of employment of the unit em- ployees and did not possess sufficient control over these employees to support a finding of joint-employer status.5 We therefore reject the General Counsel’s argument that 5 We note that our finding that National is not a joint employer is consistent with the parties’ stipulation that it had the same degree of control and supervision over Amstaff employees as it had over Branch’s employees and with the judge’s observation in Branch that there was no suggestion on the record or by the General Counsel that National was a joint or single employer with Branch. 310 NLRB at 1094. National, as a joint employer with Amstaff, had any duty to bargain with AIW Local 267 or its successor, the Union.6 We therefore dismiss the complaint allegations of unfair labor practices by Respondent National. We shall now turn to a discussion of whether Amstaff had any bargaining obli- gation and, if so, whether it included the obligation to bar- gain about reinstatement of the unit employees whom Branch unlawfully locked out. 2. Did Amstaff have an obligation to bargain as Burns successor about reinstating the locked-out employees? a. Burns’ successorship In determining whether an employer is properly regarded as a successor of a predecessor employer under NLRB v. Burns Security Services, 406 U.S. 272 (1972), the focus is on whether there is “substantial continuity” between the enterprises. Under this approach, the Board examines a number of factors: whether the busi- ness of both employers is essentially the same; whether the employees of the new company are doing the same jobs in the same working conditions under the same supervisors; and whether the new entity has the same production process, produces the same products, and basically has the same body of customers. See Burns, 406 U.S. at 280, n. 4; Aircraft Magnesium, A Division of Grico Corp., 265 NLRB 1344, 1345 (1982), enf’d 730 F.2d 767 (CA9 1984); Premium Foods, Inc., 260 NLRB 708, 714 (1982), enf’d 709 F.2d 623 (CA9 1983). In conducting the analysis, the Board keeps in mind the question whether “those employees who have been retained will understandably view their job situations as essentially unaltered.” See Golden State Bottling Co., 414 U.S. at 184; NLRB v. Jeffries Lithograph Co., 752 F.2d 459, 464 (CA9 1985).7 The stipulated record convincingly shows a “substantial continuity” between Branch and Amstaff. In sum (1) the steel-pickling operations at National’s Detroit plant contin- ued without hiatus; (2) there was no evidence of any change in the jobs, machinery, equipment, or method of production; (2) Amstaff performed the same personnel leasing services for National that Branch had previously performed; (3) Am- staff initially hired all but 2 or 3 of the approximately 65 production and maintenance employees who worked for Branch prior to the transition in employers; (4) Amstaff later hired two of the three former Branch employees not origi- nally hired as well as several of the employees whom Branch had unlawfully locked out; (5) Amstaff gave these unit employees the same wages and vacation benefits they had received from Branch, but it paid different life insur- 6 We note that the General Counsel does not contend here that Na- tional had any obligation to bargain with AIW Local 267 based on the December 5, 1990 agreement, signed by Branch, National, and AIW Local 267. 7 Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 42–43 (1987). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 870 ance and health insurance benefits; and (6) Amstaff hired Branch’s plant manager as well as four of its first-line su- pervisors. Under these circumstances, unit employees con- tinuing to work for Amstaff in the National plant would “understandably view their job situations as essentially unal- tered.”8 We conclude that Amstaff was a successor of Branch within the meaning of Burns and was therefore ob- ligated to bargain with the Union about the terms and condi- tions of employment for the unit employees.9 b. Mandatory subject of bargaining The General Counsel asserts that the unlawfully locked- out employees retained their status as unit employees, so that Amstaff was obligated to bargain about their working conditions, particularly including their reinstatement. We agree with the General Counsel. Section 2(3) of the Act defines an employee as including “any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or be- cause of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment.” Clearly, the employees whom Branch unlawfully locked out retained their statutory employee status under this definition for as long as Branch remained the employer of the unit employees working in National’s plant. The only question here is whether the succession from Branch to Amstaff ex- tinguished that employee status. We find that it did not. As a new employer of production and maintenance em- ployees at the Detroit plant, Amstaff was free to select em- ployees other than those who composed the predecessor’s work force.10 Instead, it chose to hire essentially the same work force. As a consequence of this and other factors re- viewed above, Amstaff thereby succeeded to Branch’s bar- gaining obligation. In light of the substantial continuity of the bargaining unit, even including several of the unlawfully locked out employees, we perceive no reason in policy or precedent to hold that the remaining locked-out employees lost their employee status as a result of the succession in employers. On the contrary, “[t]he objectives of national labor policy, reflected in established principles of federal law, require that the rightful prerogative of owners inde- pendently to rearrange their businesses and even eliminate themselves as employers be balanced by some protection to the employees from a sudden change in the employment relationship . . . .” John Wiley & Sons v. Livingston, 376 U.S. 543, 549 (1964).11 This would seem to be especially true where the employees in question would have been ac- tively employed at the time of transition and, presumably, 8 Golden State Bottling Co. v. NLRB, 414 U.S. 184 (1973). 9 Moreover, there is no claim that AIW Local 267 did not continue to have majority support among unit employees after Amstaff became lessor of personnel services to National. Indeed, Amstaff at least im- plicitly appears to have acknowledged its general bargaining obligation to this union by negotiating with it on and after December 8, 1992. 10 NLRB v. Burns, 406 U.S. at 280, and fn. 5. 11 See generally Chemrock Corp., 151 NLRB 1074, 1077–1079 (1965). would have been hired by Amstaff but for the predecessor’s unfair labor practices. The return to active employment of a bargaining unit em- ployee clearly concerns a condition of employment and is therefore a mandatory subject of bargaining.12 Having found that the unit employees unlawfully locked out by Branch retained their employee status and identity among Amstaff’s employees in the bargaining unit at National’s plant, and that Amstaff was obligated as a Burns successor to bargain with AIW Local 267, we conclude that Amstaff violated Section 8(a)(5) when it refused the Union’s request to bargain about the reinstatement issue on and after De- cember 8, 1992.13 CONCLUSIONS OF LAW Amstaff was a successor of Branch within the meaning of Burns, and, on that basis, was obligated to bargain with the AIW Local 267, and thereafter with the Union, regarding the terms and conditions of employment of the employees in the bargaining unit of production and maintenance em- ployees working in National’s steel-pickling plant in De- troit, Michigan. This bargaining obligation included the obligation to bargain, on request, about the reinstatement of unit employees unlawfully locked out by Branch on and after March 5, 1991. By refusing on and after December 8, 1992, to bargain about reinstatement of the locked-out em- ployees, Respondent Amstaff violated Section 8(a)(5) and (1) of the Act. REMEDY Having found that Respondent Amstaff has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to ef- fectuate the policies of the Act. As previously noted, Am- staff has cancelled its personnel leasing agreement with National, and National has ceased steel-pickling operations at the Detroit, Michigan plant. We shall therefore condi- tionally order Respondent Amstaff, should it resume leasing employees to National Metal Processing, Inc. for that com- 12 E.g., Quality Packaging, Inc., 265 NLRB 1141, 1148–1149 (1982) (recall of laid-off employees); Food Service Co., 202 NLRB 790, 804 (1973) (recall of economic strikers). 13 We emphasize that the violation here is a refusal to bargain about reinstatement. Our conclusion does not imply any remedial obligation by Amstaff to reinstate, nor does it in any way limit Branch’s rein- statement and backpay remedial obligation to those employees whom it unlawfully locked out. The General Counsel argues in the alternative that Amstaff bears remedial responsibility as Branch’s successor to bargain about the reinstatement of unlawfully locked-out employees under the principles of Golden State Bottling Co. v. NLRB, supra. We note that a finding of Golden State successorship would ordinarily result in the imposition of full joint and several liability on the successor for the predecessor’s unfair labor practices. Here, however, the General Counsel specifically seeks in the complaint no more remedy through the Golden State theory than can be gained though the Burns theory: that is, a refusal to bargain finding and an order to bargain about reinstatement. Because an addi- tional finding of Golden State liability has no effect on the remedy in this case, we find it unnecessary to pass on the General Counsel’s alter- native argument. NATIONAL METAL PROCESSING, INC. 871 pany’s steel-pickling operations, to bargain, on request, with Local 7267, United Paperworkers Union, AFL–CIO as the exclusive representative of the employees in the appropriate bargaining unit, regarding those employees’ terms and con- ditions of employment, including the reinstatement to em- ployment of those employees unlawfully locked out by Branch International, Inc., on March 5, 1991, and to reduce to writing any agreement reached as a result of such bar- gaining.14 ORDER The National Labor Relations Board orders that the Re- spondent, Amstaff, Inc., Novi, Michigan, its officers, agents, successors, and assigns shall 1. Cease and desist from (a) Refusing to bargain collectively with Local 7267, United Paperworkers International Union, AFL–CIO, as the exclusive bargaining representative of the employees in the following appropriate unit regarding the terms and condi- tions of employment of these employees, including the rein- statement to employment of the employees unlawfully locked out by Branch International, Inc., on March 5, 1991: All production and maintenance employees, including truckdrivers and shipping and receiving employees employed by National Metal Processing, Inc. at its fa- cility located at 6440 Mack Avenue, Detroit, Michigan; but excluding office clerical employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) If and when the Respondent resumes leasing employ- ees to National Metal Processing, Inc., for that Company’s steel-pickling operations, bargain, on request, with Local 7267, United Paperworkers International Union, AFL–CIO as the exclusive representative of the employees in the above-described appropriate bargaining unit, regarding the terms and conditions of employment of these employees, including the reinstatement of the employees unlawfully locked out by Branch International, Inc., on and after March 5, 1991, and reduce to writing any agreement reached as a result of such bargaining. (b) Mail to the unit employees employed from December 8, 1992, through December 31, 1995, and to unreinstated unit employees whom Branch International Services, Inc., unlawfully locked out on and after March 5, 1991, copies of the attached notice marked “Appendix.”15 Copies of the 14 See, e.g., Dunmyre Motor Express, Inc., 275 NLRB 299 (1985) (the bargaining order conditioned upon the respondent resuming opera- tions). 15 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- notice, on forms provided by the Regional Director for Re- gion 7, after being duly signed by the Respondent’s repre- sentative, shall be mailed by the Respondent within 14 days after receipt thereof. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with the Local 7267, United Paperworkers International Union, AFL–CIO as the exclusive bargaining representative in the appropriate bar- gaining unit described below regarding the terms and condi- tions of these employees, including the reinstatement to employment of the employees unlawfully locked out by Branch International, Inc., on March 5, 1991. The appropri- ate unit is: All production and maintenance employees, including truck- drivers and shipping and receiving employees employed by National Metal Processing, Inc. at its facility located at 6440 Mack Avenue, Detroit, Michigan; but excluding office cleri- cal employees, guards, and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaran- teed you by Section 7 of the Act. WE WILL, if and when we resume leasing employees to National Metal Processing, Inc., for that Company's steel-pickling operations, bargain, on request, with Local 7267, United Paperworkers International Union, AFL– CIO as the exclusive representative of the employees in the terms and conditions of employment of these em- ployees, including the reinstatement to employment of the employees unlawfully locked out by Branch Interna- tional, Inc., on March 5, 1991, and reduce to writing any agreement reached as a result of such bargaining. AMSTAFF, INC. tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”