O.G.S. Technologies, Inc.

National Labor Relations Board - Board Decisions

May 31, 2006

347 N.L.R.B. 299 (N.L.R.B. 2006)

O.G.S. TECHNOLOGIES, INC.
347 NLRB No. 29
299
O.G.S. Technologies, Inc. and United Automobile,
Aerospace & Agricultural Workers of America
Local 376, AFL–CIO. Cases 34–CA–9336 and
34–CA–9458
May 31, 2006
ORDER REMANDING PROCEEDINGS
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
KIRSANOW
On November 29, 2002, Administrative Law Judge
Howard Edelman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Consistent with our decision in Dish Network Service
Corp., 345 NLRB 1071 (2005), the Board has decided to
remand this case in order for another judge to review the
record and issue an appropriate decision.1
In this case and in many others, the judge has copied
extensively from the General Counsel’s brief in his deci-
sion. In each case, the judge then decided the case in
favor of the General Counsel.2 Our comparison of the
General Counsel’s brief and the judge’s decision reveals
that the majority of the judge’s decision was copied ver-
batim from the General Counsel’s post-hearing briefs.
The judge copied verbatim from the General Counsel’s
briefs in both his factual statement and his legal discus-
sion.
In Dish Network, supra at 1071, we said:
[I]t is essential not only to avoid actual partiality and
prejudgment . . . in the conduct of Board proceedings,
but also to avoid even the appearance of a partisan tri-
bunal.” Indianapolis Glove Co., 88 NLRB 986 (1950).
See Reading Anthracite Co., 273 NLRB 1502 (1985);
Dayton Power & Light Co., 267 NLRB 202 (1983).
Considering the instant case in the context of all of
these cases as a whole, the impression given is that Judge
Edelman simply adopted, by rote, the views of the Gen-
eral Counsel and failed to conduct an independent analy-
sis of the case’s underlying facts and legal issues.
We recognize that the Respondent did not specifically
except to the judge’s extensive copying. However, that

1 Member Liebman dissents from the remand order for the reasons
stated in her dissent in Regency House of Wallingford, 347 NLRB 173
(2006).
2 See CMC Electrical, 347 NLRB 273 (2006); Eugene Iovine, 347
NLRB 258 (2006); Regency House of Wallingford, 347 NLRB 173
(2006); Trim Corp., 347 NLRB 264 (2006); J.J. Cassone Bakery, Inc.,
345 NLRB 1305 (2005); Dish Network Service Corp., 345 NLRB 1071
(2005); and Fairfield Tower Condominium Assn., 343 NLRB 923
(2004).
fact does not, and should not, preclude the Board from
taking corrective measures. It is the Board’s solemn
obligation to insure that its decisions and those of its
judges are free from partiality and the appearance of par-
tiality.
We understand that this remand delays the issuance of
a Board decision, and this may inconvenience the parties.
However, we believe that the fundamental necessity to
insure the Board’s integrity outweighs these considera-
tions.
In order to dispel this impression of partiality, we will
remand the case to the chief administrative law judge for
reassignment to a different administrative law judge.
This judge shall review the record and issue a reasoned
decision.3 We will not order a hearing de novo because
our review of the record satisfies us that Judge Edelman
conducted the hearing itself properly.
ORDER
IT IS ORDERED that the administrative law judge’s deci-
sion of November 29, 2002, is set aside.
IT IS FURTHER ORDERED that this case is remanded to
the chief administrative law judge for reassignment to a
different administrative law judge who shall review the
record of this matter and prepare and serve on the parties
a decision containing findings of fact, conclusions of
law, and recommendations based on the evidence re-
ceived. Following service of such decision on the par-
ties, the provisions of Section 102.46 of the Board’s
Rules and Regulations shall apply.
Terri Craig, Esq., for the General Counsel.
Joseph Summa and William A. Ryan, Esq. (Summa & Ryan),
for the Respondent.
Thomas Meiklejohn, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on December 11, 2001, March 21, and
September 5, 2002, in Hartford, Connecticut.
Charges were filed by United Automobile, Aerospace & Ag-
ricultural Implement Workers of America, Local 376, AFL–
CIO (the Union) against OGS Technologies, Inc. (the Respon-

3 The new judge may rely on Judge Edelman’s demeanor-based
credibility determinations unless they are inconsistent with the weight
of the evidence. If inconsistent with the weight of the evidence, the
new judge may seek to resolve such conflicts by considering “the
weight of the respective evidence, established or admitted facts, inher-
ent probabilities, and reasonable inferences which may be drawn from
the record as a whole.” RC Aluminum Industries, Inc., 343 NLRB 939,
939 fn. 2 (2004), quoting Daikichi Sushi, 335 NLRB 622, 623 (2001)
(internal quotation marks and citations omitted). Alternatively, the new
judge may, in his/her discretion, reconvene the hearing and recall wit-
nesses for further testimony. In doing so, the new judge will have the
authority to make his/her own demeanor-based credibility findings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD300
dent). A consolidated complaint issued against Respondent
alleging a violation of Section 8(a)(1) and (5) of the Act.
Based on the entire record, including my observation and
demeanor of the witnesses and briefs submitted by counsel for
General Counsel and counsel for Respondent, I make the fol-
lowing Findings of Fact and Conclusions of Law.
At all material times, Respondent, a Connecticut corporation
with an office and place of business in Waterbury, Connecticut,
has been engaged in the manufacture and non-retail sale and
distribution of brass buttons. On or about January 21, 2000,
Respondent purchased the business of Waterbury Companies
Inc., d/b/a Waterbury Button Company (Waterbury Compa-
nies), and since then has continued to operate the business of
Waterbury Companies, in basically unchanged form, and has
employed as a majority of its employees, individuals who were
previously employees of Waterbury Companies.
Respondent admits that it is a successor to Waterbury within
the meaning of Fall River Dying Corp. v. NLRB, 482 U.S. 27,
(1987).
During the 12-month period ending July 31, 2001, Respon-
dent, in conducting its operations described above, purchased
and received at its facility goods valued in excess of $50,000
directly from points outside the State of Connecticut.
Respondent admits it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
It is also admitted that the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
On January 21, 2000, Respondent purchased the assets of
Waterbury Button Company (Waterbury), including accounts
receivable, inventory, tooling, fixtures, machinery, equipment,
technical data rights, patents, trademarks, trade names, litera-
ture, plates, negatives, films, price lists, customer lists, cus-
tomer history files, vendor lists, open customer purchase or-
ders, open contracts, open vendor purchase orders, display
booths, office equipment, computers, vehicles, shop supplies,
products, product lines, and distributor agreements. Michael
Salamone is Respondent’s majority shareholder (60 percent)
and President. Salvatore Geraci is a 20 percent-shareholder
and is Respondent’s executive vice president of operations.
Robert J. Oppici is the remaining 20 percent-shareholder and is
Respondent’s executive vice president of sales. Prior to the
purchase, Geraci was Waterbury’s plant manager and Oppici
was its sales manager. Respondent also continued the em-
ployment of the following former Waterbury managers: Nick
Longo (inventory control manager); Tom Wirges (engineering
manager); and Tony Romeo (supervisor of finishes).
Prior to the sale, the Union represented a unit of production
and maintenance employees employed by Waterbury. The
most recent collective-bargaining agreement between
Waterbury and the Union, effective by its terms from April 17,
1997, through March 12, 2000, recognized the Union as the
sole and exclusive collective-bargaining representative for a
unit consisting of the following employees:
All production and maintenance employees at its Waterbury,
Connecticut division, including receiving, weighing and stock
clerks, but excluding office and professional employees,
guards, drafters, drafting, tool room and billing clerks, nurse,
laboratory employees, expediters, timekeepers, supervisors,
factory supervisors, and all other supervisors as defined in
Section 2(11) of the National Labor Relations Act, as
amended.
While die makers/cutters are not expressly included in or ex-
cluded from the above unit description, it is undisputed that the
job classification was recognized as a production and mainte-
nance position and as such was incorporated in the unit.
Waterbury maintained this unit throughout a long series of
collective-bargaining agreements.
Thereafter, on or about January 31, 2000, Respondent hired
19 former Waterbury employees, including die makers/cutters
Michael Petroraio and Rich Carey.
Employee Petroraio credibly testified that on or about Janu-
ary 22, 2000, in an employee interview, President Salamone
showed him a job description reflecting the job duties of the
newly entitled “Die Engineer” position. Salamone stated that
the Die Engineer position would be a management position as a
result of Respondent restructuring the plant’s operations.
Salamone further explained that the principal distinction be-
tween the former master die maker/cutter position and the
newly entitled “Die Engineer” position would be the added
responsibility to seek out new methods and processes to reduce
production time. Geraci subsequently contacted Petroraio and
a second meeting was scheduled to further discuss the die engi-
neer position. The following Thursday, Petroraio went to the
plant and met with Geraci and Oppici. During the second
meeting, Geraci stated that Respondent was changing its pro-
duction operations to a “cell manufacturing” approach. Geraci
explained that this would involve a lot of cross-training among
production employees. Geraci reiterated that the die engineer
position would be classified as managerial and that if Petroraio
were to assume the position, his duties he would involve the
investigation of new processes for die development. Petroraio
was also told that his wages would remain the same and he
would continue to receive overtime after 8 hours at a rate of
time and one-half. Petroraio later accepted the proffered die
engineer position and commenced employment with Respon-
dent on January 31. Around the same time, Carey was hired as
the remaining die engineer position at about the same wage rate
as he had been earning with Waterbury. Carey and Petroraio
also retained the same health care, life insurance, disability, and
401(k) pension benefits as at Waterbury. As was the case with
Waterbury’s master die cutter position, it was only Petroraio
and Carey who held the “Die Engineer” position.
On January 24, prior to Petroraio and Carey’s start date, Re-
spondent began its operations at the same location as
Waterbury, utilizing the same equipment and manufacturing
the same product for essentially the same customer base. Re-
spondent began those operations with 20 production and main-
tenance employees, 19 of whom were former Waterbury Button
employees who were employed in the production and mainte-
nance unit represented by the Union. Since that time, Respon-
dent has continued to operate with substantially the same num-
ber of production and maintenance employees.
By letter dated February 18, Respondent acknowledged that
when it had hired a full compliment of employees, it expected
O.G.S. TECHNOLOGIES, INC. 301
to have a bargaining obligation with the Union. Accordingly,
at an ensuing meeting between Respondent and the Union on
March 2, Respondent extended recognition to the Union as the
bargaining representative of Respondent’s production and
maintenance employees, excluding die engineers who Respon-
dent contended were now managerial employees. However,
Respondent recognized the Union as the bargaining representa-
tive for the following nine newly designated job classifications:
(1) automation tool-setter/operator; (2) die sinker/cutter; (3)
toolmaker, eyelet; (4) maintenance, electrician; (5) mainte-
nance/repairer, (6) machine operator/tender; (7) metal fin-
isher/plater; (8) toolsetter/operator; and (9) quality techni-
cian/machine operator. Respondent did not recognize any bar-
gaining obligation with respect to the die engineer position.
It is uncontested that Respondent, unlike its predecessor,
utilized a “cell manufacturing” concept in its production proc-
ess. A cell manufacturing process provides for the cross-
training of employees to perform more than one task in the
course of production in order to eliminate downtime and to
maximize employee output. Respondent’s conversion to a cell
manufacturing process resulted in the overall reduction of pro-
duction and maintenance job classifications from the 49 exist-
ing under Waterbury to the 9 listed above that Respondent
recognized as included within the production and maintenance
unit represented by the Union, in addition to the disputed “Die
Engineer” classification. Accordingly, Respondent cut its work
force by more than half that employed by its predecessor.
Despite the implementation of the cell manufacturing proc-
ess, a review of the job descriptions before and after the pur-
chase reveal that no significant changes were made to the work
performed by the production and maintenance employees in the
unit. Rather, employees now assumed a multidisciplinary ap-
proach incorporating the job duties of more than one classifica-
tion in performing the same work.
As previously noted, both of Waterbury’s master die cutters,
Petroraio and Carey, were re-employed by Respondent in the
newly entitled position of “Die Engineer.” While employed by
Waterbury as master die cutters, Petroraio and Carey were
responsible for “[p]erform[ing] all required duties to make
master hubs and working dies, for embossing designs on prod-
uct,” i.e., buttons. Similar to the other production and mainte-
nance job classifications, a review of the pre and post-sale job
descriptions for master die cutters and die engineers reveals no
significant alterations to the knowledge base or job duties of
Petroraio or Carey. In fact, much of the same language as con-
tained in Waterbury’s Master Die Cutter job description is rep-
licated in Respondent’s later adopted die engineer job descrip-
tion. The only marked difference is the additional responsibil-
ity for seeking out new technologies to improve production
methods.
Consistent with the uniformity of job functions between the
master die cutter and die engineer positions, Petroraio and
Carey retained the same supervision as they had under
Waterbury, reporting to Engineering Manager Tom Wirges.
Further, upon reporting for work with Respondent, Petroraio
and Carey were assigned to resume the same jobs they had
been working on prior to their layoff from Waterbury. In addi-
tion to retaining the same supervisor and work assignments,
Petroraio and Carey worked at the same workstation with the
same equipment as under Waterbury Button. However, unlike
other production and maintenance employees, Petroraio and
Carey were not cross-trained to perform other functions in con-
formity with the cell manufacturing process. Neither Petroraio
or Carey received any new or different training as die engi-
neers. Rather, the only appreciable difference in their position
after the takeover was the additional responsibility for seeking
out information on more advanced production methods. The
new aspect of the job was primarily conducted accessing the
Internet to search for new die cutting technologies, such as
electrical discharge machines (EDM) and software packages
that would direct machines to cut dies. However, this
amounted to only 2 percent of their overall working time.
Their remaining time was spent performing the work they had
always performed prior to the takeover, i.e., fabricating tooling
(dies and forces) either through manual or machine cutting
operations.
Where there are any inconsistencies between Carey and Pet-
roraio’s testimony, I credit Petroraio. I was generally im-
pressed with Petroraio’s demeanor. His testimony was de-
tailed, and consistent during both direct and cross-examination.
Carey, on the other hand, was at times vague and inconsis-
tent. For example, although Carey initially testified on direct
examination that he spent approximately 50 percent of his
worktime engaged in seeking out new technologies, it became
clear upon cross-examination that Carey’s testimony related the
time period after Petroraio was laid off and after Carey was
inserted into the new position of “Product Development Tech-
nician, as discussed below.
While Respondent has advanced several defenses in support
of its contention that it has no bargaining obligation regarding
the die engineers, its initial claim was that the die engineer
position was exempt from union representation by virtue of it
being a managerial position.
However, contrary to Respondent’s position, the record is
replete with evidence showing that the Die Engineers have no
authority to formulate, determine, or effectuate Respondent’s
policies.
In this regard, the die engineers had no authority to pledge
the credit of Respondent. Although the die engineers occasion-
ally contacted outside vendors for the purpose of appropriating
tooling or securing repairs to machinery, they had no authority
to do so absent the express authorization of Engineering Man-
ager Wirges. Nor did they have the authority to decide what
work was shipped out and what work stayed in-house. They
have no authority over other employees, nor did they possess
any training responsibilities with regard to those employees.
Although the die engineers would occasionally attend “die
meetings” with customers for the purpose of offering insight
into the production capacity of devising dies detailed enough to
be responsive to customer wishes, they did not attend manage-
ment meetings. Die engineers were paid for any overtime
worked, but had no authority to work overtime without prior
approval. Moreover, Engineering Manager Wirges prioritized
their work assignments. Each of the above job functions and/or
limitations of functions applied equally under both Waterbury
and Respondent. Further, the die engineers had no role in Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD302
spondent’s establishment of the “cell manufacturing” process.
With respect to the one and only difference in job functions,
i.e., seeking out new technologies for production, none of the
recommendations proffered by the die engineers were adopted
by Respondent. While Respondent appears to rely on two
reports sent to the attention of Petroraio from sales persons
marketing die-cutting apparatus, it is undisputed that Petroraio
merely passed those reports onto Wirges for consideration by
persons with higher authority. Furthermore, Respondent was
only able to produce one written report generated by Petroraio
regarding the die-cutting capabilities of machines he viewed
while attending the one and only trade show Respondent au-
thorized its die engineers to attend. This notable absence of
documentary evidence is consistent with Petroraio’s testimony
that he had no more authority under Respondent than he did
under Waterbury, and cannot support a finding that the die
engineers were involved in the formulation and/or effectuation
of management prerogatives. To the extent that testimony of
Respondent’s witnesses is inconsistent, such testimony is not
credited in view of my conclusion that Petroraio is a credible
witness, and the absence of any documentary evidence which is
inconsistent with Petroraio’s testimony.
Curiously, Respondent retracted from its “managerial exclu-
sion” position at the trial and argued in the alternative that its
die engineers had no community of interest with the other pro-
duction and maintenance employees. However, Respondent
put on no evidence in support of this alternative contention.
The record clearly establishes the Respondent’s die engineers
were historically accepted as members of the bargaining unit
under Waterbury and that they had regular interchange with
other production and maintenance unit employees. In this re-
gard, the die engineers regularly took their breaks with other
production and maintenance employees, and they routinely
spent time on the production floor whenever a die or force was
broken during the production process. Moreover, the die engi-
neers worked along side unit member/toolmaker Jack O’Brian,
who assisted them in die making functions.
Respondent’s explanation for its decision to subcontract the
die engineers’ work to outside contractors, resulting in the
elimination of the position and the layoff of Petroraio, was
described by President Salamone. Salamone testified that Re-
spondent initially created the positions of die engineer and die
cutter with a view toward improving Respondent’s in-house
die-cutting technologies. This would be accomplished by hav-
ing the die engineers provide technical support for the die cut-
ters, who would do the bulk of die-cutting machine operating
functions. However, the die-cutter position was never filled.
Salamone further testified that in or around August or Septem-
ber 2000, he concluded that the necessary expenditures for
upgrading Respondent’s die-cutting capabilities through the
purchase of modernized equipment was cost prohibitive, and as
a result he made the decision to subcontract Respondent’s die-
cutting work instead of investing in the new technologies. This
decision admittedly resulted in the elimination of the die engi-
neer position since the work the die engineers had been per-
forming would now be subcontracted to outside vendors.
Accordingly, Petroraio was laid off on October 6. While Re-
spondent retained Carey, he was inserted in the new position of
product development technician on the same day as Petroraio
was laid off.1 Prior to assuming the new position, Carey spent
most of his time doing hands-on die-cutting work, whereas
after assuming the new position that work was subcontracted to
various “high tech vendors.” Also after assuming the product
development technician position, unlike when he was em-
ployed as a die engineer, Carey exercised the authority to par-
ticipate in the decisions as to which vendor would be awarded
which die-cutting jobs.
Respondent stipulated that it provided no notice or opportu-
nity to bargain with the Union over its decision to subcontract
die engineer work and the resulting decision to lay off Petro-
raio. As noted above, the Union had no notice of Respondent’s
complete elimination of the die engineer position until Respon-
dent proffered testimony to this effect at the trial.
Analysis and Conclusion
As set forth above, Respondent admitted it was a successor
to Waterbury pursuant to the criteria set forth in Fall River
Dying Corp., supra. A successor employer may establish initial
terms and conditions of employment. However, this right is
not unfettered. Contrary to Respondent’s primary contention, it
was not entitled to delete the master die cutters position (known
as die engineers under Respondent) from the Unit as one of the
initial terms and conditions of employment on which it would
hire the predecessor’s employees. Although the Supreme Court
in NLRB v. Burns Security Services, 406 U.S. 272 (1972), held
that a successor employer is entitled to set initial terms and
conditions of employment, the Court clearly limited such terms
and conditions only to the extent they are covered by Section
8(d) of the Act. Therefore, only “wages, hours and other terms
and conditions of employment” were contemplated by the
Court in its discussion of a successors’ ability to set initial
terms. The Board and the courts have repeatedly recognized
that the scope and composition of a historical bargaining unit is
not embraced by “wages, hours, and other terms and conditions
of employment,” within the meaning of Section 8(d) of the Act.
Rather, unit changes are permissive subjects of bargaining,
which Respondent could not implement without the Union’s
consent. See, e.g., Holy Cross Hospital, 319 NLRB 1361 fn. 2
(1995) (“once a specific job has been included within the scope
of the unit . . . the employer cannot remove the position without
first securing the consent of the Union of the Board); Newspa-
per Printing Corp. v. NLRB, 625 F. 2d 1936 (D.C. Cir. 1988)
(unit composition is not a mandatory subject of bargaining). In
explicating the policy considerations that warrant a finding that
unit scope and composition are permissive subjects of bargain-
ing, the D.C. Circuit in Idaho Statesman v. NLRB, 836 F. 2d
1396 (D.C. Cir. 1988), explained that if these were mandatory
subjects of bargaining “an employer could use its bargaining
power to restrict the scope of union representation in deroga-
tion of employees’ guaranteed right to representatives of their
own choice.”
Respondent contends that it was willing to “discuss the in-
clusion or exclusion of the die engineer positions from the bar-

1 The fact that Carey no longer occupied the Die Engineer position
was revealed for the first time on cross-examination.
O.G.S. TECHNOLOGIES, INC. 303
gaining unit.” However, the facts plainly establish that from
the outset Respondent deleted die engineers from the unit be-
fore it undertook any negotiations with the Union. It simply
reclassified the die engineers as managers and refused to rec-
ognize the Union as their representative. No notice was given
in advance of Respondent’s actual implementation of these
decisions. Thus, the Union was presented with a fait accompli.
At most, Respondent provided the Union with notice of a fait
accompli, which is not the sort of timely notice that would have
afforded the Union a reasonable opportunity to bargain. NLRB
v. Citizens Hotel Co., 326 F. 2d 501, 505 (5th Cir. 1964).
Nor is there any merit to Respondent’s contention that inclu-
sion of the die engineers in the unit would render it inappropri-
ate because of the alleged changes to the die engineers’ duties
and responsibilities. In this regard, the die engineers continued
to perform essentially the same job functions as they did when
they were master die cutters with Waterbury. The negligible
change in their job duties was the added responsibility to seek
out information on new technologies. I conclude this negligi-
ble added responsibility would not destroy the unit’s continued
appropriateness. See, e.g., Deferiet Paper Co., 330 NLRB No.
89 (2000) (not reported in bound volume).
There is absolutely no merit to Respondent’s argument that
the die engineers lacked a community of interest with other
production and maintenance employees. In this regard, Re-
spondent failed to produce any evidence warranting their ex-
clusion from the unit. Moreover, the die engineers’ work was
the first step in the production of buttons. The Board has ex-
pressed reluctance in disturbing established units where bar-
gaining relative to those units has been successful. See, e.g.
Banknote Corp., 315 NLRB 1041 (1994), enfd. 84 F.2d 637 (2d
Cir. 1996). The Board has found this to be particularly true
where bargaining history is the only evidence adduced concern-
ing the unit’s appropriateness. Puerto Rico Marine Manage-
ment, 242 NLRB 181 (1979). Moreover, the fact that the die
engineers received the same fringe benefits as other production
and maintenance employees, retained frequent contact with
production and maintenance employees, and possessed a high
degree of functional integration with the production process, all
militates in favor of the unit’s continued appropriateness. See,
e.g., Kalamazoo Paper Box Corp., 136 NLRB 134 (1962).
Further, the Board merely requires “an appropriate unit.” This
unit is not only “an appropriate unit,” unlike a unit with Section
2(11) supervisors, but it is a historical unit.
Finally, there is no merit to Respondent’s assertion that the
die engineers were properly excluded from the unit as manage-
rial employees. In this regard, the Board has defined manage-
rial employees as those who “formulate and effectuate man-
agement policies by expressing and making operative the deci-
sions of their employer, and those who have discretion in the
performance of their jobs independent of their employer’s es-
tablished policy.” General Dynamics Corp., 213 NLRB 851,
857 (1974). Although the Act contains no specific language
excluding managerial employees from the Act’s coverage,
Board policy recognizes that managers are not “employees” as
defined in the Act based on the premise that the functions and
interest of such employees are more closely aligned with those
of management than with production workers.
In the instant case, it is clear that the die engineers had no
authority to make employer policy or to effectuate such policy.
See, e.g., Case Corp., 304 NLRB 939 (1991) (Board held in-
dustrial engineers were not managers since they had no exten-
sive authority to make employer policy). The die engineers
mad no decisions that were not subject to the approval of
higher management, they attended no management meetings,
they were subject to extensive supervision, they had no author-
ity to pledge Respondent’s credit, they had no authority to es-
tablish production schedules (not even their own), they had no
role in Respondent’s production changes in its move to a “cell
manufacturing” process, and they had no responsibility for
training employees. In sum, the die engineers were at no time
in any position to exert influence on management policy.
Accordingly, I conclude that the die engineers are part of,
and included in the bargaining unit. I also conclude Respon-
dent violated Section 8(a)(1) and (5) by refusing to recognize
the die makers as part of the bargaining unit.
Respondent’s unilateral subcontracting of unit work, elimi-
nation of unit positions and lay off unit employee Petroraio are
each decisions that fall within the sphere of subjects that have
been determined by the Board and the courts to be mandatory
subjects of bargaining. In evaluating whether a given subject
constitutes a mandatory subject of bargaining, essentially two
distinct lines of cases have evolved. The first line of cases hold
that such decisions, which are clearly applicable in the instant
case, are per se mandatory subject of bargaining. The second
line of cases employ a balancing test between the competing
employer and employee interests in determining whether a
particular management decision that impacts unit employees is
a mandatory subject of bargaining.
In most cases subcontracting of unit work is a mandatory
subject of bargaining. In Torrington Industries, 307 NLRB 809
(1992), the Board reaffirmed the principles set forth in Fiber-
board Corp. v. NLRB, 379 U.S. 203 (1964), where the Supreme
Court held that subcontracting is a mandatory subject of bar-
gaining under circumstances where one group of employees
has been substituted for another to perform the same work un-
der the ultimate control of the same employer. In Torrington,
the Board held that when those conditions are present “there is
no need to apply any further tests in order to determine whether
the decision is subject to the statutory duty to bargain.” The
Supreme Court has already determined that it is. 307 NLRB at
810. Even in the presence of these factors, the Board mused,
while expressly declining to address the issue, that there may
be circumstances “in which the non-labor cost reasons for sub-
contracting may provide a basis for concluding that the deci-
sion to subcontract is not a mandatory subject of bargaining.”
Id. In such cases, however, the employer’s proffered reason for
the decision to subcontract must implicate a matter of core
entrepreneurial concern defined by a fundamental change is the
“scope and direction” of its business. First National Mainte-
nance Corp. v. NLRB, 452 U.S. 666, 667 (1981). Since the
employer in Torrington failed to show that its subcontracting
decision was a core entrepreneurial decision or dictated by
emergency, the Board found it unwarranted to invoke the any
balancing test.
In applying Torrington to the instant case, there is little dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD304
pute that Respondent’s decision to subcontract the die engi-
neers’ work was not necessitated by a change in the “scope and
direction” of Respondent’s enterprise. Rather, Respondent’s
action resulted in the direct replacement of unit employees with
independent contractors who perform the same work, fabricat-
ing dies to emboss designs on buttons, for Respondent’s al-
ready established customer base. In the absence of any evi-
dence to the contrary, Respondent presumptively retained con-
trol over the terms and conditions by which the independent
subcontractors performed these functions. Under such circum-
stances, it cannot be found that there is any alteration in the
“scope and direction” of Respondent’s operations. Inasmuch as
Respondent’s decisions did not turn on a change in the scope,
nature or direction of its operations, its decisions were amena-
ble to collective bargaining. Respondent failed to show that its
reasons for subcontracting bargaining unit work, eliminating
bargaining unit positions, and laying off unit employees in-
volved “entrepreneurial decisions that are outside the range of
bargaining or decisions dictated by emergencies that render
bargaining impractical.” Furniture Rentors, 311 NLRB 749
(1994), enfd. in part, denied in part 36 F. 3d 1240 (3d Cir.
1994), remanded 318 NLRB 602, fn. 13 (1995). Thus, under
the Board’s holding in Torrington, Respondent’s decision to
subcontract the Die Engineers’ work, and the resulting deci-
sions to completely eliminate this position from the Unit and
layoff Petroraio are mandatory subjects of bargaining. See
also, Holmes & Naver, 309 NLRB 146 (1992) and The
Winchell Company, 315 NLRB 526 (1994).
I conclude there is absolutely no reason a balancing test dis-
cussed in First National Maintenance, supra.
Accordingly, I conclude that Respondent violated Sections
8(a) (1) and (5) of the Act by subcontracting out the work of
the Die Engineers and laying off its employee Petroraio.
In its answer to the original complaint, Respondent contends
the affirmative defense that the allegations concerning the lay-
off of Petroraio and the subcontracting of die maker work is
time barred, despite the charge being filed ten days after the
date of incident. In a review of its position statement, Respon-
dent presents a theory that the Union should have known of the
subcontracting and lay off of Petroraio before it even occurred.
Moreover, since Salamone testified that these related decisions
were not made until a month or two before the action was
taken, it is absurd for Respondent to contend that the Union
should be imputed with knowledge of these decisions before
they were actually made. Accordingly, I find such contentions
without merit.
I also find, Respondent’s further 10(b) contention regarding
the elimination of the Die Engineer position is similarly with-
out merit. In this regard, Respondent contends that the Union
was placed on adequate notice of the elimination of the die
engineer position sufficiently in advance so as to time bar the
amendment to complaint made at the trial. In support of this
contention, Respondent submitted into evidence a December 8
communication that it forwarded to the Regional office inform-
ing it of its decision and the implementation of the complete
elimination of the die engineer position from the Unit. Not-
withstanding, it is undisputed that while the Regional office
may have been served with such notice, the Charging Party
Union was not. It is well settled that Section 10(b)’s 6-month
limitation period “does not begin to run on an unfair labor prac-
tice until the person adversely affected is actually or construc-
tively put on notice of the allegedly offending act.” (emphasis
added.) Truck & Dock Services, 272 NLRB 592, 593 (1984),
and cases cited therein. Notice of the potential commission of
an unfair labor practice must be clear and unequivocal before
the time restrictions of Section 10(b) will start to run, and the
burden of showing such notice is on the party raising the af-
firmative defense of Section 10(b). AMCAR Division, 234
NLRB 1063 (1978). Inasmuch as Respondent failed to offer
even so much as a scintilla of evidence suggesting that the Un-
ion had notice of the total elimination of a bargaining unit posi-
tion, it has clearly failed to meet its burden.
Moreover, Section 10(b) of the Act will not preclude finding
a violation where the later charged complaint allegation is
closely related to other timely filed allegations. See Redd-I
Inc., 290 NLRB 1115, 1115–1116 (1988). In the instant case,
the allegation regarding the elimination of the die engineer unit
position is directly related to timely filed complaint and charge
allegations that Respondent subcontracted the work of the die
engineers and laid off die engineer, Petroraio. To determine
whether an allegation is closely related, the Board In Redd-I
stated that it would look at three factors: (1) whether the
charge and complaint allegations involve the same legal theory;
(2) whether they arise from the same set of factual situations or
sequence of events; and (3) whether a respondent would raise
similar defenses to both allegations, Clearly, the answer to
each of the above three elements is yes, since the very same
sections of the Act and facts pertaining to Respondent’s sub-
contracting and layoff of Petroraio are involved in its eliminat-
ing the die engineer position. Accordingly, I conclude Respon-
dent’s 10(b) defense is without merit.
Pursuant to Respondent’s special appeal, the Board issued
an Order dated July 31, 2002, ordering this trial to be reopened
for the sole purpose of eliciting testimony concerning Respon-
dent’s defense that the Union adopted an intransigent bargain-
ing stance by insisting that Respondent assume its predeces-
sor’s contract, which Respondent contends privileged its uni-
lateral conduct concerning the die engineers/makers.
The facts, elicited pursuant to the reopening of this trial are
set forth as follows.
After Respondent’s January 21, 200, purchase of the assets
of Waterbury Button Company, it had only four meetings with
the Union: February 10, March 2, 21, and 22. The first meet-
ing was very short in duration and was held at the International
Union’s regional office in Farmington, Connecticut. Present on
behalf of the Union was Local 376 President Russ See and
International Representative Art Muzzicato. Representing
Respondent at this meeting were Attorneys Joe Summa and Bill
Ryan. The Union, through See, explained that the Union had a
suspicion that the predecessor and Respondent were acting in
“cahoots” to “shaft” the Union and the employees. See further
explained that the Union’s suspicion was based on such ob-
servable facts as former representatives and agents of the
predecessor having ownership interest in Respondent’s opera-
tions. Other observable facts supporting the Union’s initial
suspicions were that Respondent continued the predecessor’s
O.G.S. TECHNOLOGIES, INC. 305
enterprise in essentially unchanged form, utilizing the same
equipment at the same location to manufacture the same prod-
uct for the same customers, all without any discontinuity in
operations. Moreover, Respondent’s predecessor (including
Respondent’s principles then employed by the predecessor
Geraci and Coppice) concealed its sale of Waterbury Button
from the Union until after the sales transaction occurred.
Summa denied that there was any relationship between the two
entities and informed See and Muzzicato that he expected that
once Respondent’s hiring was completed that it would have a
bargaining obligation and likely would extend recognition to
the Union. However, it is clear that recognition had not been
granted as of the February 10 meeting.
Summa, Ryan, Muzzicato, and Union Representative Car-
men Burnham attended the second meeting on March 2. Dur-
ing this meeting Muzzicato took the position that Respondent
was an alter ego of its predecessor and as such was obligated to
reinstate all the employees laid off by the predecessor, and
assume the Waterbury bargaining agreement.
Accordingly, Muzzicato requested various documents show-
ing Respondent’s ownership interest, including the sales
agreement between Respondent and the predecessor. Summa
communicated that Respondent “had no problem” in turning
over the sales agreement so long as the Union executed a con-
fidentiality agreement first. Summa orally extended recogni-
tion to the Union on behalf of Respondent. However, despite
the unilateral modifications to the unit in connection with the
die makers, Muzzicato responded by stating that he would pro-
vide Respondent with a “recognition agreement” detailing the
composition of the unit. Respondent does not dispute that
Muzzicato offered to produce a “recognition agreement.”
Since the Union did not have the sales agreement, the Union
was adamantly insisting on Respondent’s wholesale adoption
of the predecessor’s contract already containing a recognition
clause at article 2.
I would conclude that, as of the close of this second of only
four meetings, not a single indication surfaced that could sug-
gest the Union was adhering to an instransigent position.
After the March 2 meeting, Muzzicato followed up with a
second letter to Summa requesting the sales agreement so as to
permit the Union to determine whether Respondent was an alter
ego of the predecessor.
The next meeting took place on March 21 in Summa’s of-
fice. The same parties were present as at the prior meeting.
Muzzicato asked Respondent to “live up to” the successor’s
clause of the predecessor’s agreement and hire back all the
employees not retained by Respondent. Muzzicato stated that
he was upset that Sal Geraci, Waterbury’s plant manager and
20 percent shareholder of Respondent; was familiar with the
contract and its requirement that the Union be notified in ad-
vance of any sale, yet chose to hide this information from the
Union. Respondent refused to hire the laid-off employees or be
bound by the successor language in the predecessor’s contract.
Accordingly, the meeting closed by Muzzicato stressing that
the Union needed the information including the sales agree-
ment he had earlier requested. Without the sales agreement,
the Union would not be able to ascertain whether Respondent
was an alter ego of Waterbury. Another meeting was sched-
uled for the following day, March 22.
As with the last two meetings, the same parties attended the
March 22 meeting, except that Ryan was only present on an
intermittent basis.2 At the beginning of the meeting, Respon-
dent produced certain information requested by the Union,
including Respondent’s employee handbook, the job descrip-
tions of the positions Respondent recognized as in the Unit,3
and the sales agreement. However, the sales agreement was
not produced until the parties successfully negotiated the terms
of a confidentially agreement. Upon review of the sales
agreement, and noting that none of the predecessor’s principles
owned a majority interest in Respondent’s enterprise, Muzzi-
cato reached the conclusion that Respondent was not an alter
ego of Waterbury Companies. Although the Union relin-
quished its initial position that Respondent was an alter ego
after it obtained custody of the sales agreement, it continued to
argue that Respondent should lose its ability to set initial terms
and conditions of employment by virtue of its being complicit
in the predecessor’s unfair labor practices. Respondent sug-
gests that the Union’s vigorous opposition to the mass layoff of
its members, who were not retained by Respondent, through its
resort to legitimate legal processes, is tantamount to bad-faith
bargaining. In this regard, Respondent points to the fact that
the Union had pending from March 17, 2000, until August 10,
2001, an unfair labor practice charge against Respondent seek-
ing to prohibit it from setting initial terms and conditions of
employment as evidence that the Union assumed an unreason-
able and intractable bargaining position. However, I conclude
the most plausible reason why an unfair labor practice charge
would remain pending for such a prolonged period of time
without a Regional determination being made is because there
existed an arguable and legitimate basis to the charge.
At this same meeting, Summa told Muzzicato that Respon-
dent would be employing a “cell manufacturing” concept.
Muzzicato asked Summa about signing a recognition agree-
ment, whereupon for the first time Summa stated that there
were two classifications Respondent wanted out of the unit,
waste treatment, and die engineers, because they were now
classified as managerial positions. Muzzicato responded that
the Union did not agree to the exclusion of those positions.
Summa proposed that the positions be deleted from any recog-
nition agreement embodying a unit description and that the
Union attempt to bargain them back in. Muzzicato proposed
that the positions remain in the bargaining unit and that Re-
spondent could try to bargain them out. In light of Summa’s
assertions that these positions were management and the Un-
ion’s desire to test the veracity of that claim, Muzzicato re-
quested copies of the waste treatment and die engineers’ job
descriptions. He further requested that Salamone, the principal
owner, be present at the next meeting since Summa was not

2 Contrary to Summa’s testimony that See was present at this meet-
ing on behalf of the Union, Muzzicato’s contemporaneous notes show
that he was not.
3 Contrary to Summa’s testimony that the job descriptions were pro-
vided on March 21, the job descriptions contain a handwritten notation
by Muzzicato showing they were actually provided on March 22, which
is also consistent with Muzzicato’s contemporaneous notes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD306
familiar with Respondent’s operations. The next meeting was
scheduled for April 4.
At this point there are certain inconsistencies between
Muzzicato’s testimony and Summa’s testimony. Based on
comparisons in demeanor, Muzzicato’s contemporaneous
notes, and consistent with the undisputed facts I find Muzzicato
a more credible witness. Therefore, where there are inconsis-
tencies in testimony, I credit Muzzicato.
At times inconsistent with Muzzicato’s testimony and his
contemporaneous notes of the March 22 meeting, Summa testi-
fied as follows:
Muzzicato] was asking about the job descriptions. The—it
[sic] was a pretty dramatic change. There used to be 49 dif-
ferent job descriptions now there nine. A lot of combined
jobs because of the cell manufacturing concept. Art was ask-
ing questions about the jobs and what they did. We went over
pay rates. He specifically raised as issue of a position Die
Engineer [sic] which was not in the bargaining unit. . . . I ex-
plained to him[,] I said [,] Art these are different positions.
The primary purpose of this position the Die Engineer posi-
tion [sic[ is to go out and find new technology to make dies
that the company believes it cannot go forward using the tech-
nology that is hundreds of years old. They need to go to
modern technology and that that was the primary function of
these Die Engineers and that’s why we didn’t put them in the
bargaining unit. . . . I pointed out that there was a Die Cutter
job description [,] and depending on where the evaluation of
the technology came out [,] that may be filled in the future. I
said look we are willing to bargain about this. [Emphasis
added.]
There is no ambiguity in Summa’s testimony. He concedes
that Respondent had unilaterally removed the “Die Engineer”
position from the unit before the March 22 meeting without
seeking the Union’s consent or extending an opportunity to
bargain. Instead, Respondent merely extended to the Union an
offer to bargain over whether or not a different position would
be filled at some unspecified future date.
Summa then testified that in response to his offer to bargain
over the “Die Cutter” position Muzzicato asked, “[W]ell are
you willing to take the old contract and rehire all the employ-
ees[?]” And upon receiving a negative response, Summa
claims that Muzzicato said, “[W]ell then we really have noth-
ing to talk about.” To which Summa contends he responded,
“[W]ell then we will have to let the NLRB decide.” Summa’s
testimony is seemingly crafted to create the impression that the
Union conditioned any and all further bargaining upon Re-
spondent acceding to the predecessor’s contract, simply does
not reconcile with the undisputed and corroborated evidence
that Respondent canceled subsequent bargaining meetings and
failed to respond to the Union’s requests to schedule additional
bargaining meetings, as discussed below.
Muzzicato denies that he insisted on Respondent assuming
the Waterbury collective agreement during the March 22 meet-
ing. Upon Respondent’s furnishing the Union with the sales
agreement Muzzicato credibly testified that he realized that
Respondent was probably not an alter ego. However, the Un-
ion had filed an unfair labor practice charge alleging Respon-
dent was an alter ego, and without pushing the issue further, he
would let the Region decide. It took the Region about 9
months to decide the charge which was ultimately dismissed.
However, there is no credible evidence that during the March
22 meeting, or any time thereafter, Muzzicato insisted that
Respondent assume the Waterbury contract.
Consistent with Muzzicato’s testimony, his contemporane-
ous notes from the March 22 meeting show that another meet-
ing had been scheduled for April 4. However, Summa called
Muzzicato about 2 days before April 4 and canceled the meet-
ing, citing Salamone’s inability to attend as the reason for the
cancellation. Nevertheless, another meeting was scheduled for
June 14. Summa similarly canceled that meeting due to Sala-
mone’s unavailability. Respondent does not dispute that addi-
tional meetings were scheduled, or that Summa canceled those
meetings. Over the ensuing months, Muzzicato encountered
Summa while the two were functioning as the respective bar-
gaining representative of Theis Precision Steel and its union-
ized employees. On each occasion, Muzzicato requested that
another meeting date be set. Summa responded that he would
first have to check Salamone’s availability and then get back to
Muzzicato. Summa never did get back to Muzzicato. Muzzi-
cato’s testimony is corroborated by the testimony of Mark Li-
burdi, Theis Precision Steel’s bargaining committee member,
and current Local president of that unit.
While Summa admits encountering Muzzicato during the
summer months after the March 22 meeting, he contends, con-
trary to Muzzicato and the credible evidence above, that it was
he who sought to schedule additional meetings and he who was
rebuffed by Muzzicato, who allegedly refused to meet unless
Respondent first assumed the predecessor’s contract. Unlike
Muzzicato’s testimony, not only is Summa’s testimony uncor-
roborated, I find it is also implausible. If Summa had been
confronted by such obstructionism, it makes no sense why he
waited until well over a year later to file an unfair labor practice
charge against the Union alleging it was impeding good-faith
bargaining. One would think that a seasoned professional such
as Summa with his nearly 30 years’ experience in labor law
would have perceived much earlier the legal ramifications of
the Union’s conduct had the Union actually engaged in the
conduct as alleged. When confronted by his failure to act more
expediently, on cross-examination, Summa admitted that he did
not believe the Union had engaged in bad-faith bargaining. In
agreement with Summa’s assessment, both the Regional Office
and the Office of Appeals concluded that there was no merit to
Respondent’s charge that the Union engaged in bad-faith bar-
gaining.
In further support of its nonmeritorious defense, Respondent
put on evidence involving a post-complaint meeting of the
parties occurring in or around October 2, 2001. Counsel for the
General Counsel objected that the testimony elicited ought to
be deemed inadmissible and stricken from the record as occur-
ring in the context of settlement discussions. I find the timing
of such meeting would support General Counsel’s contention
that such meeting was for the purpose of exploring settlement
of the pending complaint. Accordingly, I strike Summa’s tes-
timony in this regard. See Nathan Yorke, Trustee, 256 NLRB
819, 825 (1981). Moreover, given my conclusion concerning
O.G.S. TECHNOLOGIES, INC. 307
Respondent’s unlawful conduct in unilaterally altering the
scope and composition of an historical bargaining unit, the
Union was privileged in demanding that the status quo be re-
stored before any further settlement discussions continued.
Lastly, any testimony concerning a postcomplaint meeting is on
its face irrelevant as it occurred several months after Respon-
dents unlawful conduct.
Respondent’s defense, as articulated pursuant to the Board’s
Order dated July 31, 2002, stands common sense on its head. It
is illogical for Respondent to argue as a defense that the Union
assumed an intractable bargaining stance, where, as here, the
evidence establishes Respondent took its unilateral action well
in advance of the Union staking out any bargaining position
whatsoever. The facts establish that it was Respondent that
obstinately clung to its decision, made even before the onset of
operations, to remove the die engineers/makers from the his-
torical bargaining Unit. Respondent then points to the Union’s
later expressed opposition to this unilateral action as proof that
the Union possessed no intentions of bargaining over the die
engineers/makers. Contrary to Respondent’s viewpoint, how-
ever, the Union was free to oppose Respondent’s maneuvers in
unilaterally tailoring the unit.
Even if Respondent’s testimony alleging the Union assumed
a “take it or leave it” or assume the contract bargaining stance
is not discredited, repeated Board cases directly on point make
it clear that Respondent was nonetheless required to afford the
union notice and an opportunity to bargain before implement-
ing its October 2000 decisions to subcontract the “Die Engi-
neers work, eliminate their position, and layoff Petroraio. In
Manor Mining & Contracting Corp., 197 NLRB 1057 (1972),
the union was found to have adopted a “take it or leave it” bar-
gaining position by insisting that the employer sign an industry-
wide contract. In response, the employer unilaterally instituted
a pay raise which it hadn’t first offered to the Union. In spite
of the union’s “take it or leave it” bargaining stance, the Board
found the employer violated Section 8(a)(5) when it failed to
afford the union the opportunity to bargain over the pay raises.
Similarly, in Antonio’s Restaurant, 246 NLRB 833 (1979),
the employer had timely withdrawn from a multiemployer bar-
gaining association and terminated the multiemployer contract.
The union maintained that the employer was bound by a suc-
cessor multiemployer contract and refused to meet with the
employer for any other purpose. The union thereafter sought to
negotiate with the employer. The employer refused to meet
and made unilateral changes in various benefit programs. The
administrative law judge, whose decision was adopted by the
Board, rejected the employer’s defense that it would have been
futile to contact the union because of the union’s earlier “take it
or leave it” conduct. Based on the above authority, it is clear
that even if the Union had engaged in “take it or leave it” bar-
gaining with respect to the predecessor’s contract, this does not
license Respondent to subvert the statutory requirements of
good-faith bargaining.
Accordingly, I find Respondent’s contentions set forth in it’s
special appeal, and the evidence adduced during the reopening
of this trial to be without merit.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union is the exclusive collective-bargaining repre-
sentative for the following unit of employees: all production
and maintenance employees at its Waterbury facility, including
receiving, weighing and stock clerks, but excluding office and
professional employees, guards, drafters, drafting, toolroom
and billing clerks, nurse, laboratory employees, expediters,
timekeepers, supervisors, factory supervisors, and all other
supervisors as defined in the National Labor Relations Act as
amended.
4. By refusing to recognize the die makers as members of
the above unit, Respondent has violated Section 8(a)(1) and (5)
of the Act.
5. By refusing to bargain over the terms and conditions of
the die makers, Respondent has violated Section 8(a)(1) and (5)
of the Act.
6. By laying off die maker Michael Petroraio, Respondent
has violated Section 8(a)(1) and (5) of the Act.
7. By subcontracting out die maker work, Respondent has
violated Section 8(a)(1) and (5) of the Act.
REMEDY
Having found Respondent has engaged in the unfair labor
practices described above, I shall recommend Respondent must
be ordered to cease and desist therefrom, and take certain af-
firmative action designed to effectuate the policies of the Act.
Accordingly, I shall issue a recommended order requiring
Respondent to cease and desist the conduct described above in
paragraphs 4 through 7 of the Conclusions of Law.
Affirmatively, I shall issue a recommended order requiring
Respondent to reinstate Michael Petroraio to his former job
with his former terms and conditions of employment, make him
whole for loss of earnings suffered as a result of his layoff with
the back pay period to run from the date of his layoff until Re-
spondent offers him an unconditional offer of reinstatement as
defined by Board authority.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
Additionally, I shall recommend an Order requiring a resto-
ration of the die engineer classification.
Respondent has urged that in the event Respondent is found
to have violated the Act by eliminating the die engineer posi-
tion, subcontracting the die engineer’s work, and laying off
Petroraio, the appropriate remedy is that which is described in
Transmarine Navigation Corp., 170 NLRB 389 (1968). How-
ever, I conclude the appropriate remedy here is restoration of
the status quo ante and bargaining. Unlike the instant case, the
unfair labor practice remedied in Transmarine involved a fail-
ure to engage in effects bargaining only with regard to a com-
plete plant closure. While a lesser remedy may be appropriate
when a violation implicates decisional bargaining under cir-
cumstances where a restoration order would place an unwar-
ranted burden on the Respondent, the facts here do not compel
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD308
such a finding. As noted by the Board in Power, Inc., 311
NLRB 599, 600 (1993), [w]hen bargaining unit work has uni-
laterally and unlawfully been removed, whether by subcon-
tracting or relocation, it is appropriate to order restoration of
the work to the bargaining unit, unless the employer has dem-
onstrated that restoration would be unduly burdensome.” Since
the record is devoid of any evidence showing that a restoration
order would impose upon Respondent any undue hardship, only
a full restoration remedy would uphold the policies and pur-
poses of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, OGS Technologies, Inc., Waterbury, Con-
necticut, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize the die makers or die engineers as
members of the following unit of employees:
All production and maintenance employees at its Waterbury
facility, including receiving, weighing and stock clerks, but
excluding office and professional employees, guards, drafters,
drafting, toolroom and billing clerks, nurse, laboratory em-
ployees, expediters, timekeepers, supervisors, factory supervi-
sors, and all other supervisors as defined in the National La-
bor Relations Act, as amended.
(b) Refusing to bargain with United Automobile, Aerospace
& Agricultural Implement Workers of America, Local 376,
AFL-CIO, the Union, over terms and conditions of employ-
ment of die makers or die engineers.
(c) Laying off or transferring Die Makers or Die Engineers
out of the bargaining unit described above.
(d) Implementing and maintaining a practice of subcontract-
ing out die maker, or die engineer work.
(e) In any other like or related manner interfering, restrain-
ing, or coercing employees in the exercise of their rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer to Mi-
chael Petroraio his former position of employment, or if no
such position exists, to a substantially equivalent position of
employment, without prejudice to his seniority, or other rights
and privileges he previously enjoyed, and make him whole in
the manner set forth in the remedy portion of this decision de-
scribed above from the date of his layoff, until the date of a
valid offer of reinstatement.
(b) Restore the job classification of die maker and or die en-
gineer and produce the work previously performed by this job
classification.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its
Waterbury, Connecticut facility copies of the attached notice
marked “Appendix.”5 Copies of the notice, on forms provided
by the Regional Director for Region 34, after being signed by
the Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent
at any time since October 6, 2000.
(e) 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 Federal labor law and has ordered us to post and obey this
notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to bargain with the International Un-
ion, United Automobile, Aerospace & Agricultural Implement
Workers of America, Local 376, AFL–CIO (the Union) before
we deny you union representation.
WE WILL NOT refuse to bargain with the Union about your
wages, working hours, and other terms and conditions of em-
ployment.

5 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-
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.”
O.G.S. TECHNOLOGIES, INC. 309
WE WILL NOT refuse to bargain with the Union before we
subcontract your work.
WE WILL NOT refuse to bargain with the Union before we
eliminate your jobs.
WE WILL NOT refuse to bargain with the Union before we
lay you off.
WE WILL NOT in any similar way interfere with your rights
under the law.
WE WILL return Michael Petroraio to his former job and pay
him for any lost wages or benefits.
WE WILL restore the job classification of Die Engineer.
O.G.S. TECHNOLOGIES, INC.