OGS Technologies, Inc.

National Labor Relations Board - Board Decisions

Feb 11, 2011

356 N.L.R.B. 642 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 642
O.G.S. Technologies, Inc. and United Automobile,
Aerospace & Agricultural Implement Workers
of America, Local 376, AFL–CIO. Cases 34–
CA–9336 and 34–CA–9458
February 11, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
On August 23, 2006, Administrative Law Judge
Clifford Anderson issued the attached decision. The
Respondent 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.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions; to
modify his remedy consistent with our recent decision
regarding compound interest on backpay awards;2 and to
adopt the recommended Order as modified and set forth
in full below.3
1 On May 31, 2006, the Board set aside Administrative Law Judge
Howard Edelman’s prior decision in this case and remanded the case to
Chief Administrative Law Judge Giannasi for reassignment. O.G.S.
Technologies, 347 NLRB 299 (2006). The Board instructed the new
judge to rely on Judge Edelman’s demeanor-based credibility determi-
nations in deciding the case, unless they were inconsistent with the
weight of the evidence.
Pursuant to our instruction, Judge Anderson has found it appropriate
to rely on each of Judge Edelman’s demeanor-based credibility findings
and, in each instance, has provided a detailed discussion of why he
found these findings to be consistent with the weight of the evidence.
The Respondent has excepted to Judge Anderson’s reliance on some of
these credibility findings. We have carefully examined the record and
find no basis for reversing Judge Anderson’s decision to rely on these
credibility findings. See Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). All references to the judge
in this case are to Judge Anderson, unless otherwise indicated.
The Respondent argues that allegations that it unlawfully subcon-
tracted the die engineers’ work, laid off Petroraio, and eliminated the
die engineers’ position are time barred under Sec. 10(b) of the Act.
However, the Union filed charges concerning the unlawful subcontract-
ing and layoff approximately 10 days after those actions allegedly
occurred, clearly within the 10(b) period. As to the elimination of the
die engineer’s position, the record shows that the Union did not learn
about it until the trial. At that time, the General Counsel timely amend-
ed the complaint. Thus, the Respondent’s 10(b) defenses are meritless.
2 We shall add a make-whole remedy for employee Rich Carey to
compensate him for any losses caused by the Respondent’s unilateral
changes to his duties and position. In accordance with our decision in
Kentucky River Medical Center, 356 NLRB 6 (2010), we modify the
judge’s remedy by requiring that backpay and other monetary awards
shall be paid with interest compounded on a daily basis.
3 We shall modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010). For the reasons stated in his dissenting opinion in J. Picini
This case arose following the purchase of the Water-
bury Button Company (Waterbury) by Respondent
O.G.S. Technologies, Inc. (OGS). The primary issues
are whether the judge correctly found that OGS, conced-
edly a successor employer, violated Section 8(a)(5) and
(1) of the Act by: (1) excluding the newly created die
engineers classification from the existing collective-
bargaining unit; and (2) unilaterally subcontracting to
other firms the work of cutting dies performed by its die
engineers, eliminating the die engineer classification, and
laying off one of the two employees holding that position
while changing the duties of the other. As more fully
explained below, we agree with the judge.
I. FACTUAL BACKGROUND
On January 21, 2000,4

OGS purchased the assets of
Waterbury, a manufacturer and wholesale seller of brass
buttons. OGS significantly reorganized the work force:
it reduced the number of employees in the production-
and-maintenance (p&m) unit from 45 to 22, and reduced
the number of p&m classifications from 49 to 9. On
January 24, it began operations with 20 unit employees,
19 of whom were former Waterbury employees. OGS
continued the production process utilized by Waterbury,
but OGS cross-trained employees to perform the job du-
ties of more than one of the former job classifications.
Prior to the purchase, the Union represented Water-
bury’s p&m employees and had been a party to a series
of collective-bargaining agreements covering those em-
ployees.5 The agreements included the following unit
description:

All production and maintenance employees at its Wa-
terbury, 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 supervi-
sors, and all other supervisors as defined in Section
2(11) of the National Labor Relations Act, as amended.

The Waterbury unit included two employees designat-
ed master die cutters, who were responsible for fabricat-
ing the dies used in the button manufacturing process.
Upon taking over the company, OGS eliminated the
master die-cutter position and put in its place a new job
Flooring, Member Hayes would not require electronic distribution of
the notice.
We shall substitute a new notice to conform to the violations found
and the Board’s standard remedial language.
4 All dates

are in 2000, unless otherwise indicated.
5 The term of the last agreement between Waterbury and the Union
was to run through March 12, 2000.
356 NLRB No. 92

O.G.S. TECHNOLOGIES, INC. 643
classification, die engineer. The first three paragraphs of
the job description for this new classification were the
job description for the Waterbury master die cutters, ver-
batim; they described the duties involved in creating but-
ton dies. OGS added to that description an additional
responsibility, researching new die-cutting processes and
products. See Appendix A.
OGS managers interviewed Mike Petroraio, one of the
Waterbury master die cutters, for the new position. They
informed him that the job would differ from his former
position: the die engineer would be part of the manage-
ment team and have the added responsibility, set forth in
the job description, of seeking out new methods and pro-
cesses to reduce the time needed to produce dies. On
January 31, OGS hired Petroraio and Rich Carey, the
other Waterbury master die cutter, as die engineers.
When OGS started production in February, Petroraio
and Carey performed the same duties as they had for
Waterbury, namely cutting dies by hand, preparing dies
for use by the button-stamping machines, and fixing any
subsequent problems with the dies during the manufac-
turing process. In addition, they spent approximately 2
percent of their time using the internet to research new
technologies.6 Petroraio testified that he passed on any
information acquired through this research to his superi-
ors.
When acquired by OGS, Waterbury was subcontract-
ing 85 percent of its die-making to other firms. The re-
maining 15 percent was performed in-house by Petroraio
and Carey.7 Mike Salamone, OGS president and majori-
ty owner, testified that whether the work was done in-
house or by subcontractors, Waterbury had used dies cut
by hand, which was a time-consuming process. Subcon-
tractors doing the work could take 16 to 20 weeks to
produce a new die. In contrast, Salamone testified, ven-
dors based in China using more automated procedures
(utilizing laser and computer technology) could produce
a new die in 2 to 3 weeks. In order to reduce the turna-
round time for the design and manufacture of new but-
tons, Salamone decided to explore acquiring this equip-
ment or using subcontractors who employed it.

On March 2, after engaging in preliminary discussions
with the Union, OGS recognized the Union as the bar-
gaining representative of the p&m employees. But on
6 Over time, OGS made other changes to the die engineers’ duties
and working conditions, including integrating their operations with
those of a graphic designer, paying them on a salaried instead of hourly
basis, having them report to the engineering manager (instead of the
production manager), and giving them their own phones, voice mail,
computers, and internet access.
7 In its brief in support of exceptions, OGS states it began operations
subcontracting the same percentage of work.
March 22, it announced that it was removing the die en-
gineers from the bargaining unit.8
In August or September, Salamone decided that rather
than upgrade the Company’s own die-cutting capabilities
through the purchase of advanced equipment, OGS
would, at least for the time being, begin shifting its al-
ready subcontracted work to firms that used that equip-
ment.9 At the same time, Salamone decided to subcon-
tract all of the remaining in-house die-cutting work and
to eliminate the die engineer classification. On October
6, OGS laid off Petroraio. It placed Carey in a new man-
agerial position, product development technician. In that
capacity, Carey worked more closely with management
in evaluating new technology and identifying appropriate
firms to use as subcontractors.
It is undisputed that OGS did not provide the Union
with an opportunity to bargain over the removal of the
die engineers from the bargaining unit, the later decision
to subcontract the remaining in-house die-cutting work,
or the resulting decision to lay off Petroraio. In fact, the
Union did not learn that OGS had eliminated the die en-
gineer positions until the unfair labor practice hearing.
II. ANALYSIS
A. Exclusion of the Die Engineers Classification from the
Bargaining Unit
A successor employer, such as OGS, ordinarily is free
to establish employees’ initial terms and conditions of
employment unilaterally. Like any other employer,
however, it may not remove job classifications from an
existing bargaining unit absent reaching agreement with
the unit employees’ collective-bargaining representative
or satisfying the conditions set by the Board. See SFX
Target Center Arena Management, LLC, 342 NLRB 725,
734–736 (2004), and cases cited;10 Bay Shipbuilding
8 The Respondent recognized the Union as the bargaining repre-
sentative for the following nine new job classifications: (1) automation
tool-setter/operator; (2) die sinker/cutter; (3) toolmaking, eyelet; (4)
maintenance, electrician; (5) maintenance/repairer; (6) machine opera-
tor/tender; (7) metal finisher/plater; (8) toolsetter/operator; and (9)
quality technician/machine operator.
9 Salamone testified as follows:
[W]e felt it was more cost effective at that point to outsource a lot of
the product, a majority of the dies that we were making, and still try to
perfect that technology before we invested, you know, hundreds of
thousands of dollars into equipment. There is [sic] two or three in-
roads, means and methods of doing it; and before we married our-
selves to a particular technology, we wanted to make sure that it’s the
correct way to go for the future.
10 OGS argues that its unilateral determination that the Union would
no longer have the right to bargain on behalf of the die engineers, who
had historically been included in the bargaining unit, was justified as a
result of the Union’s refusal to bargain over the issue. The law is clear,
however, that unit composition is a permissive subject of bargaining.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 644
Corp., 263 NLRB 1133, 1139–1140 (1982). Thus, alt-
hough a successor employer is free to make changes in
the duties of, as well as the terms and conditions of, em-
ployment in a particular unit position, the position re-
mains part of the bargaining unit unless the employer
establishes, in a unit clarification proceeding or in its
defense to an 8(a)(5) allegation, that the employees in the
position no longer share a community of interest with the
employees comprising the rest of the unit. In sum, to
justify the unilateral removal of a position from a bar-
gaining unit, the employer bears the heavy burden of
demonstrating that the failure to remove the classifica-
tion would have rendered the unit inappropriate. See Bay
Shipbuilding Corp., 263 NLRB at 1139–1140, enfd. 721
F.2d 187 (7th Cir. 1983).11
Applying that standard, we agree with the judge that
OGS violated the Act by removing the die engineers
from the historical bargaining unit. Contrary to OGS’
assertion, we find that the changes in the die engineers’
duties did not sever their community of interest with the
unit. We rely specifically on the credited testimony of
employee Petroraio, who stated that the new duties as-
signed to him in the die engineers classification took up
only 2 percent of his worktime. We also agree with the
judge that OGS’ changes to the die engineers’ pay status
and other working conditions did not outweigh the fact
that Petroraio’s work duties remained almost entirely the
same as before. Cf. K.G. Knitting Mills, 320 NLRB 374
(1995) (salaried status and other more favorable working
conditions did not require exclusion from the bargaining
unit of employees who continued to perform the same
work).
OGS also argues it properly excluded the die engineers
from the unit because their duty to research the introduc-
tion of new technologies created a conflict of interest
between them and the other unit employees. Although
the Board has excluded employees from a bargaining
unit when performance of their job duties creates a con-
See SFX Target Center, 342 NLRB at 735 (citing Newspaper Printing
Corp. v. NLRB, 625 F.2d 956, 964–965 (10th Cir. 1980), cert. denied
450 U.S. 911 (1981)). Accordingly, as the judge found, OGS could
neither compel the Union to bargain over the issue nor use the Union’s
refusal to do so as a justification for its unilateral action.
11 In Bay Shipbuilding, supra, the Board adopted a judge’s decision
finding that the employer violated Sec. 8(a)(5) by failing to recognize
the union as the representative of employees engaged in a computerized
process that supplemented a preexisting manual process performed by
bargaining unit employees. Although the employer’s introduction of
computer technology had significantly altered the work process, the
Board found that the similarities between the manual and computerized
versions of the work, the interaction between the two groups of em-
ployees, and the continuity of supervision all supported a finding that
the computer operators remained part of the unit.
flict with the interests of other unit employees,12 we find
no such conflict here. The additional duty of the die en-
gineers was simply to explore possible uses of advanced
technologies, the results of which they passed on to man-
agement. As shown, the performance of that duty consti-
tuted a minimal percentage of their work. Moreover,
there was no evidence that the die engineers had any in-
put whatsoever into the choice or implementation of new
technologies. In the circumstances, we find that the die
engineers, as a result of their limited research responsi-
bilities, were unlikely to have any significant impact on
the job security of their unit colleagues.13 In short, OGS
failed to meet its burden of showing a conflict of interest.
Accordingly, we find that OGS violated Section
8(a)(5) and (1) by excluding the die engineers from the
bargaining unit and by refusing to bargain with the Un-
ion over their terms and conditions of employment.
B. Unilateral Subcontracting of the Die-Cutting Work
and the Elimination of the Die Engineer Classification
We also adopt the judge’s finding that OGS violated
Section 8(a)(5) and (1) by unilaterally subcontracting its
remaining die-cutting work and by making the other uni-
lateral changes that followed from that action.
In Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964),
the Supreme Court held that an employer’s “replacement
of employees in the existing bargaining unit with those
of an independent contractor to do the same work under
similar conditions of employment” is a mandatory sub-
ject of bargaining. Id. at 215. In an influential concur-
ring opinion, Justice Stewart identified another type of
management decision, “concerning the commitment of
investment capital and the basic scope of the enterprise”
that “lie[s] at the core of entrepreneurial control.” Id. at
223. Those decisions, the concurrence stated, are not
subject to collective bargaining. Id.
Fibreboard ultimately became the basis of the Board’s
Torrington line of cases. Torrington Industries, 307
NLRB 809 (1992). There, the Board held that a decision
to subcontract the work of employees unaccompanied by
any substantial commitment of capital or change in the
scope of the business was not the type of decision that
Justice Stewart had identified as being at “the core of
entrepreneurial control,” and was, therefore, subject to
12 For example, in Cablevision Systems Development Co., 251
NLRB 1319, 1324 (1980), enfd. 671 F.2d 737 (2d Cir. 1982), the Board
excluded the audit employees from the bargaining unit because they
performed essentially a security function, determining whether cable
installers in the unit were setting up unlawful connections for custom-
ers.
13 As shown above, OGS’s interest in new technologies was focused
on die-cutting. If that put any jobs at risk, it was the die engineers’ own
jobs.

O.G.S. TECHNOLOGIES, INC. 645
bargaining. Id. at 810–811. In Torrington itself, the
Board found a bargaining violation where the employer
laid off two truckdrivers and replaced them with a non-
unit employee and independent contractors.
Applying Torrington here, the judge found that OGS’
decision to subcontract the remaining die-cutting work,
resulting in the replacement of its own die engineers by
outside firms, was a mandatory subject of bargaining.
OGS, however, contends that under the Supreme Court’s
decision in First National Maintenance Corp. v. NLRB,
452 U.S. 666 (1981), which expanded upon Justice
Stewart’s concurring opinion in Fibreboard, it had no
duty to bargain. We reject that argument.
In First National Maintenance, the question was
whether the employer, which provided maintenance ser-
vices to other businesses, was obligated to bargain over
its decision to relinquish one of its maintenance con-
tracts, which resulted in the layoff of some of its em-
ployees. To answer the question, the Court identified
three types of management decisions, each subject to a
bargaining obligation to different degrees. First, “[s]ome
management decisions, such as choice of advertising and
promotion, product type and design, and financing ar-
rangements, have only an indirect and attenuated impact
on the employment relationship” and are thus not manda-
tory subjects of bargaining. Second, “[o]ther manage-
ment decisions, such as the order of succession of layoffs
and recalls, production quotas, and work rules, are al-
most exclusively ‘an aspect of the relationship’ between
employer and employee” and are thus mandatory sub-
jects. Finally, there is a third type of management deci-
sion, one that has “a direct impact on employment,” be-
cause it leads to job loss, but has “as its focus only the
economic profitability” of the enterprise. 452 U.S. at
677. Whether there is a duty to bargain about the third
type of decision requires further analysis.
In First National Maintenance itself, the Court con-
cluded that the employer’s decision fell in the third of its
three categories, and, after further analysis, concluded
that the employer’s termination of the maintenance con-
tract was not a mandatory subject of bargaining. In brief,
the Court, which characterized the employer’s decision
as “akin to the decision whether to be in business at all,”
found that it was “a change in the scope and direction of
the enterprise” and therefore that the employer had no
duty to bargain over it. Id. at 677, 686–688. The Court,
however, emphasized the relative narrowness of its hold-
ing, observing that it “intimate[d] no view as to other
types of management decisions, such as plant reloca-
tions, sales, other kinds of subcontracting, automation,
etc., which are to be considered on their particular facts.”
Id. at 686 fn. 22.
OGS contends that its subcontracting of the remaining
die-cutting work was, like the decision in First National
Maintenance, an entrepreneurial decision “involving a
change in the scope and direction of the enterprise,” and
thus that it had no duty to bargain before implementing
it. Consequently, OGS contends, the judge erred by find-
ing a violation based on Torrington, supra. We disagree.
In contrast to First National Maintenance, OGS made
certain operational changes, but they did not amount to a
“partial closing” or other “change in the scope and direc-
tion of the enterprise,” which remained devoted to the
manufacture and sale of brass buttons to the same range
of customers. Id. at 677, 681. Before and after the deci-
sion to subcontract die cutting, OGS produced and sup-
plied brass buttons to customers. Before and after the
decision, OGS, either directly or through its subcontrac-
tors, used a mix of technologies to cut the dies needed to
produce the buttons. Before and after the decision, OGS
utilized subcontractors to perform the vast majority of
the die cutting (85 percent before and 100 percent after).
The decision at issue simply resulted in a marginal in-
crease in the percentage of cutting work the Respondent
subcontracted and a modest change in the functions per-
formed in-house, but not the abandonment of a line of
business or even the contraction of the existing business.
Given this essential continuity in its operations, OGS’
action in marginally expanding its subcontracting in or-
der to avail itself of more advanced technologies for cut-
ting dies does not rise to the level of a change in the
scope of the enterprise or its direction. Specifically, we
reject the dissent’s characterization of a subcontracting
decision of such limited scope as a “fundamental rea-
lignment of the Respondent’s production processes.”
In this regard, this case is quite similar to Winchell
Co., 315 NLRB 526 (1994), enfd. 74 F.3d 1227 (3d Cir.
1995), where the Board found that a printing company
could not unilaterally lay off its pre-press employees
merely because it had invested in desktop computers that
allowed its customers to prepare their own material for
printing. The Board reasoned that

the technological advance of the desktop computers
changed the Respondent’s operation by degree not
kind. The Respondent still performed those steps nec-
essary to provide the finished product to the customer.
The Respondent merely engaged in slightly fewer steps
than theretofore.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 646
Id. at 526 fn. 2. Here, too, OGS’ small increase in subcon-
tracting and decrease in in-house production of dies repre-
sented a change “by degree, not kind.” Id.14
Thus, we agree with the judge that this case is con-
trolled by Fibreboard and Torrington Industries. OGS
emphasizes that its subcontracting decision did not turn
on its wage bill, but was based on its desire to increase
the speed of production through “technological im-
provements in the die-making process.”15 In Torrington,
however, the Board held that whether subcontracting is a
mandatory subject of bargaining (“Fibreboard subcon-
tracting”) does not depend on whether the Respondent’s
decision to replace [unit employees] with nonunit per-
sonnel was motivated by labor costs in the strictest sense
of that term.” 307 NLRB at 811. Fibreboard controls
when the decision “involved unit employees’ terms of
employment and it did not ‘lie at the core of entrepre-
neurial control.’” Id. at 811. Here, the decision turned
on how fast the employees could perform their work.
Similarly, in Torrington, supra, the Board held that bar-
gaining was required, despite the employer’s argument
that its subcontracting decision turned on inadequate
equipment and the incapacity of its employees. 307
NLRB at 811. Here, although the subcontractors’ em-
ployees employed different technologies to produce the
dies than were used by OGS’ die engineers, this case still
falls closer to Fibreboard along the spectrum of man-
agement decisions than to First National Maintenance,
which involved a decision “akin to the decision to be in
business at all.” 379 U.S. at 677.16
14 Indeed, even this change was not necessarily permanent. In his
testimony(quoted above at fn. 9), OGS President Salamone implied that
it might bring the die-cutting work back in-house, once it was better
able to assess the merits of the available technologies by first utilizing
them through subcontractors.

15 Brief on exceptions at 35.
16 The two Board decisions cited by the Respondent are inapposite.
In each case, the Board found that there was a change in the “nature
and direction” of the business. Garwood-Detroit Truck Equipment, 274
NLRB 113, 116 (1985); Kroger Co., 273 NLRB 462, 463 (1984).
Moreover, in neither case did the decision turn on employees’ terms or
conditions of employment. In Kroger, the Board held that the employ-
er was not required to bargain about the closure of its one remaining
egg processing facility, which it had operated to supply eggs to its retail
stores. The Board rested its decision on a finding that the decision
turned on a shift in the industry to more efficient “integrated” egg pro-
cessing where production and processing are performed at the same
location, resulting in a lack of raw materials (i.e., eggs) for the unin-
tegrated processing facility. Id. at 462–463. Similarly, in Garwood-
Detroit Truck Equipment, the Board held that the employer, a supplier,
installer and servicer of truck parts, was not required to bargain over its
decision to subcontract all of the installation and service work and
restrict itself to supplying parts. As the employer’s general manager
informed the union, the employer “wanted to get out of the garage
business, per se, and more or less, go towards a parts distribution type
situation.” 274 NLRB at 115. No similar decision was made here.
We would reach the same result even if we concluded
that the balancing test laid out in First National Mainte-
nance, rather than the analysis set forth in Fibreboard,
applied here. That test requires weighing the “employ-
er’s need for unencumbered decision-making” against
the benefit that mandatory bargaining would lend to “la-
bor-management relations and the collective-bargaining
process.” 452 U.S. at 679.17 The outcome turns, as the
Supreme Court explained, on the precise management
decision involved, considered on its particular facts. Id.
at 686 fn. 22.
In defending its failure to bargain, OGS cites no par-
ticular need for “speed, flexibility, and secrecy” in the
contracting out of the remaining in-house die cutting.
Id. at 682–683. Any such contention would be dubious
in light of OGS’ claim that it deliberated almost 10
months over what course of action to take. It seems rea-
sonable that, with timely notice to the Union, good-faith
bargaining over the decision could have been completed
during that period.
OGS asserts that bargaining over the decision would
have been futile because it has “no feasible alternative
to” the subcontracting, given the technological advantage
of the contractors and the cost of obtaining comparable
equipment in-house. But as the District of Columbia
Circuit has observed, the “Board is authorized to insist
that such an ‘argument’ be presented first to the union in
the bargaining context.” Rock-Tenn Co. v. NLRB, 101
F.3d 1441, 1446 (D.C. Cir. 1996). The employees here
possessed considerable expertise concerning the cutting
of dies and how quickly it could be done using the exist-
ing in-house technology. Indeed, OGS itself tasked two
of them with investigating new technologies and report-
ing their findings to management. In these circumstanc-
es, we do not believe that OGS has demonstrated that
bargaining would necessarily have been futile. As in
Fibreboard, “although it is not possible to say whether a
satisfactory solution could be reached, national labor
policy is founded on the congressional determination that
the chances are good enough to warrant subjecting such
issues to the process of collective negotiation.” 379 U.S.
at 214.
OGS could have presented the Union with the stark
choice its conduct has now placed before us in litigation.
At that time, now 10 years ago, before the decision was
made and implemented, the parties might have reached a
17 “[I]n view of an employer’s need for unencumbered decisionmak-
ing,” the Court observed, “bargaining over management decisions that
have a substantial impact on the continued availability of employment
should be required only if the benefit, for labor-management relations
and the collective-bargaining process, outweighs the burden placed on
the conduct of the business.” Id. at 679.

O.G.S. TECHNOLOGIES, INC. 647
multitude of different, mutually advantageous agree-
ments18 or arrived at impasse, thereby privileging OGS
to act unilaterally. It was OGS’ decision to proceed uni-
laterally then that forces us to turn back the clock now,
by ordering OGS to restore the status quo so that it can
honor its obligation to bargain.
Accordingly, we find that OGS violated Section
8(a)(5) and (1) by failing to provide the Union with no-
tice and opportunity to bargain over the decision to sub-
contract die-cutting work, by eliminating the die engineer
classification, by laying off employee Petroraio, and by
changing the duties of employee Carey. We conclude
that the judge properly ordered the restoration of the sta-
tus quo ante, in order to provide the Union with a true
opportunity to bargain over the subcontracting decision.
“When bargaining unit work has unilaterally and unlaw-
fully been removed, whether by subcontracting or reloca-
tion, it is appropriate to order restoration of the work to
the bargaining unit, unless the employer has demonstrat-
ed that restoration would be unduly burdensome.” Pow-
er, Inc., 311 NLRB 599, 600 (1993), enfd. 40 F.3d 409
(D.C. Cir. 1994). We therefore find no merit to OGS’s
exception that the judge erred in providing a remedy be-
yond that granted for a failure to engage in bargaining
merely over the effects of the subcontracting decision.
See generally Transmarine Navigation Corp., 170 NLRB
389 (1989).
AMENDED REMEDY
Having found that OGS violated the Act as set forth
above, we shall order that it cease and desist therefrom
and post remedial Board notices. As is traditional in
cases involving unilateral changes in terms and condi-
tions of employment, we shall order that OGS restore the
status quo ante and provide the Union with notice and an
opportunity to bargain regarding any future proposed
changes and their effects.19
We shall also require OGS to offer to restore Michael
Petroraio to his former position as a die engineer and
make him whole for any loss of wages and benefits he
may have suffered by virtue of his wrongful layoff, with
interest. Backpay shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with inter-
18 For example, the Respondent’s president implied in his testimony
(quoted above at fn. 9) that it might even bring the die-cutting work
back in-house, once it was better able to assess the merits of the availa-
ble technologies by first utilizing them through subcontractors. The die
engineers might have been retained to perform that assessment and, in
the process, to acquire the skills need to use the new technology when it
was employed in-house.
19 Member Hayes notes that the Respondent may argue at compli-
ance that restoring the status quo ante would be unduly burdensome.
Lear Siegler, Inc., 295 NLRB 857, 862 (1989).
est as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010).
We shall also require OGS to offer to restore Rich Carey
to his former position as a die engineer and make him
whole for any loss of wages and benefits he may have
suffered by virtue of his transfer to a nonunit position.
We shall order OGS to make him whole for any loss of
earnings and other benefits resulting from its unlawful
unilateral changes as prescribed in Ogle Protection Ser-
vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), plus interest as computed in New Horizons for the
Retarded, supra, compounded daily as prescribed in Ken-
tucky River Medical Center, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, OGS Technologies, Waterbury, Connecti-
cut, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize the Union as the
representative as the exclusive collective-bargaining rep-
resentative of the die engineers as part of the collective-
bargaining unit of its production and maintenance em-
ployees and of the individuals Michael Petroraio and
Rich Carey in those positions.
(b) Subcontracting the manufacture of dies without
providing notice or an opportunity to bargain to the Un-
ion about either the decision or its effects.
(c) Laying off die engineer Michael Petroraio.
(d) Changing the job title and duties of die engineer
Rich Carey.
(e) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Relations Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Recognize the Union as the exclusive collective-
bargaining representative of the die engineers as part of
the collective-bargaining unit of its production and
maintenance employees and of Michael Petroraio and
Rich Carey in the die engineer positions.
(b) Within 14 days from the date of this Order, offer to
Michael Petroraio his former position of employment, or
if no such position exists, to a substantially equivalent
position of employment, without prejudice to his seniori-
ty, or other rights and privileges he previously enjoyed.
(c) Make Michael Petroraio whole in the manner set
forth in the remedy portion of the decision from the date
of his layoff, until the date of a valid offer of reinstate-
ment.
(d) Restore the job duties of former die engineer Rich
Carey.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 648
(e) Make Rich Carey whole in the manner set forth in
the remedy portion of the decision from the date OGS
changed his position from die engineer until he is re-
stored to that position.
(f) Restore the status quo ante respecting the handling
of dies as part of OGS’ manufacturing processes.
(g) Preserve and within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all records, including an
electronic copy of such records if stored in electronic
form, necessary to determine if the terms of this Order
have been compiled with.
(h) Within 14 days after service by Region 34, post
copies of the attached notice at its Waterbury, Connecti-
cut facility set forth in the appendix.20 Copies of the
notice, on forms provided by the Regional Director for
Region 34, in English and such other languages as the
Regional Director determines are necessary to fully
communicate with employees, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places, including all places where
notices to employees are customarily posted in each of
the facilities where unit employees are employed. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure the no-
tices are not altered, defaced, or covered by other materi-
al. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent 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 the closed
facility at any time after March 22, 2000.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
20 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.”
MEMBER HAYES, dissenting in part.
Contrary to my colleagues, I find that the Respond-
ent’s decisions to discontinue antiquated die-cutting
methods, eliminate the die engineer position, and to sub-
contract its die-cutting to firms using high-tech laser
technologies were core entrepreneurial decisions over
which the Respondent was not obligated to bargain under
First National Maintenance Corp. v. NLRB, 452 U.S.
666, 677 (1981). I therefore dissent in part.
The Respondent’s president testified that he had de-
termined, by the time the Respondent purchased the
company’s assets in January 2000, that the hand-cut die-
making process of its predecessor was no longer eco-
nomically viable. That antiquated process required a 16-
to 20-week turnaround time, which was far too long to
compete in the fashion industry, where competitors, pri-
marily based in China, using newer, laser- and computer-
based technology, could turn around button dies in less
than 3 weeks. Indeed, by the time of the takeover, only
15 percent of the Respondent’s die-cutting work re-
mained in-house. Given the prohibitive capital costs of
acquiring the sophisticated machinery necessary to pro-
duce dies suitable for modern production requirements,
and the continuing evolution of die-cutting technology,
the Respondent made the core entrepreneurial decision to
cease the use of hand-cut production methods altogether,
whether in-house or at subcontracting facilities, and to
rely solely on more modern processes and equipment
used by available subcontractors. That decision con-
cerned whether and how to commit investment capital
and represented a fundamental realignment of the Re-
spondent’s production processes; precisely the type of
core entrepreneurial decision vital to survival in our
highly competitive global marketplace and shielded from
decisional bargaining obligations under First National
Maintenance and its progeny.
In concluding otherwise, the majority notes that both
before and after the decision at issue the Respondent’s
operations remained devoted to the manufacture and sale
of brass buttons to the same range of customers. How-
ever, that narrow focus on the end product of production
misses the point; what is at issue here is whether the Re-
spondent is obligated to bargain over the decision to use
one form of technology to produce its goods rather than
another. There is no doubt that the cumbersome and inef-
ficient work performed by the hand cutters differed sub-
stantially from the automated laser- and computer-based
methods employed by subcontractors. The Respondent’s
ability to rapidly adapt its production methods to capital-
ize on more efficient and cost-effective technology is
critical to its ability to compete internationally.

O.G.S. TECHNOLOGIES, INC. 649
My colleagues also characterize the decision as a mar-
ginal change because it only involved the 15 percent of
die-cutting work that the Respondent was still doing in-
house. I disagree: the Respondent made a business deci-
sion to eliminate the use of an antiquated method of pro-
ducing stamping equipment and to rely solely on high-
tech laser and EDM processes. While the decision’s im-
pact on unit employees was limited to the 15 percent of
the die-cutting work that remained in-house, the overall
change affected the Respondent’s entire production pro-
cess and represented a core entrepreneurial decision
about the scope and direction of the business. Finally,
there is no indication that bargaining would have or
could have had any effect on either the Respondent’s
need for the new technology or the scope of the capital
investment that would have been required to bring that
technology in-house. Thus, applying the balancing test of
First National Maintenance, supra at 679, I find that the
Respondent’s need for unencumbered decision making
over its production processes and technologies out-
weighed any potential benefits to the collective-
bargaining process.
Consistent with extant precedent, I would require the
Respondent to bargain, on request, with the Union over
the effects of its decision, specifically the layoff of one
employee and the change in duties of another, under
Transmarine Navigation Corp., 170 NLRB 389 (1989).
For the reasons set forth above, I respectfully dissent
in part.
APPENDIX A
[OGS Job Description for Die Engineer position]
Reports to the Engineering Manager. Position requires
an intensive knowledge of cutting techniques used to
make master hubs and working dies used for embossing.
Requires a thorough knowledge of engraving techniques
including (but not limited to) hand tools, pantographs,
acid etching, heat treating methods and other related pro-
cedures and equipment related to the creation of dies.
Must have the ability to cut dies maintaining extremely
close tolerances in order to cut (negative/positive) dies
and hubs, or to make design changes. Proficient in the
use of EDM processes, CAD/CAM equipment (utilizing
Smart CAM or similar type programming knowledge).
May be required to learn/incorporate other methods, as
they become available.
Repair or coordinate the repair of embossing tools.
Analyze damaged tools to recommend corrective action
by others. Maintain the storage of master hubs.
Seek out new methods through seminars, trade litera-
ture, internet, contacts in the industry, etc. that could be
incorporated into the work-cell that either reduces costs,
improves the quality or significantly reduces the lead
time required to produce working tools from concept to
completion. Work may require day trips to consult with
vendors of equipment, supplied, or processes.
Through journals, seminars, Internet, etc. keep abreast
of new products and process that could be incorporated
into the area that either lowers manufacturing costs, im-
proves the quality, or offers something new and/ or dif-
ferent that is beneficial to, or increases company revenue.
Detect and report defective materials, improper opera-
tion, and other unusual condition to proper supervision.
Keep work area and equipment in a clear orderly condi-
tion. Keep machines properly lubricated. Follow pre-
scribed OSHA and DEP regulations in addition to Com-
pany policy with regard to personal safety, the safety of
others and the proper handling or regulated materials.

APPENDIX B
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 behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to recognize the Interna-
tional Union, the United Automobile, Aerospace & Agri-
cultural Implement Workers of America, Local 376,
AFL–CIO (the Union) as the collective-bargaining repre-
sentative of our die engineers as part of the collective-
bargaining unit of our production and maintenance em-
ployees.
WE WILL NOT subcontract unit work without giving the
Union and notice and opportunity to bargain over our
decision to subcontract and its effects.
WE WILL NOT lay off bargaining unit employees with-
out giving the Union notice and opportunity to bargain.
WE WILL NOT eliminate bargaining unit jobs without
giving the Union notice and opportunity to bargain.
WE WILL NOT in any like or related manner violate the
Act.
WE WILL recognize the Union as the collective-
bargaining representative of our die engineers as part of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 650
the collective-bargaining unit of our production and
maintenance employees.
WE WILL restore the job classification of die engineer.
WE WILL return Michael Petroraio to his former job of
die engineer and pay him for any lost wages or benefits
plus interest.
WE WILL restore the die engineer position of Richard
Carey and pay him for any lost wages or benefits plus
interest.

O.G.S. TECHNOLOGIES, INC.

Jennifer F. Dease, Esq. and Terri A. Craig, Esq., for the Gen-
eral Counsel.
Joseph B. Summa, Esq. and William A. Ryan, Esq. (Summa &
Ryan), of Waterbury, Connecticut, for the Respondent.
Thomas Meiklejohn, Esq. (Livingston, Adler, Pulda, Meiklejohn
& Kelly), of Hartford, Connecticut, for the Charging Party.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. These
cases (Cases 34–CA–9336 and 34–CA–9458) came before me
for decision based on the following:
On July 12, 2000, the United Automobile, Aerospace & Ag-
ricultural Workers of America Local 376, AFL–CIO (the
Charging Party or the Union) filed a charge with Region 34 of
the National Labor Relations Board (the Board) docketed as
Case 34–CA–9336 against O.G.S. Technologies, Inc. (the Re-
spondent).1 On October 16, 2000, the Charging Party filed a
second charge against the Respondent docketed as Case 34–
CA–9458, which charge it amended on November 3, 2000.
On August 31, 2001, the Regional Director for Region 34 is-
sued an order consolidating cases, consolidated complaint and
notice of hearing scheduling a hearing on the consolidated cas-
es. Following the submission of a timely answer, the case came
on to hearing before Administrative Law Judge Howard Edel-
man on December 11, 2001, March 21 and September 5, 2002.
On November 29, 2002, Judge Edelman issued his decision
in the matter. Exceptions to the judge’s decision placed the
matter before the Board. The Board, on May 31, 2006, in a
decision reported at 347 NLRB 299 (2006) (the remand order),
set aside Judge Edelman’s decision and remanded the matter to
Chief Administrative Law Judge Giannasi for reassignment to a
different administrative law judge. The Board in its remand
order issued the following instruction to the new judge receiv-
ing the remand:

The 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.
1 The Respondent is also referred to as OGS in correspondence be-
tween the parties quoted in part below.
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 received.
Following service of such decision on the parties, the pro-
visions of Section 102.46 of the Board’s Rules and Regu-
lations shall apply.
________________
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, inherent 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 witnesses
for further testimony. In doing so, the new judge will have the
authority to make his/her own demeanor-based credibility find-
ings.

On June 8, 2006, Chief Administrative Law Judge Robert
Giannasi issued an order reassigning case transferring the mat-
ter to me.
FINDINGS OF FACT
On the entire record herein, including helpful briefs from the
Respondent and the General Counsel,2 I make the following3
I. JURISDICTION
The complaint alleges, the answer admits, and I find the Re-
spondent is a Connecticut corporation with an office and place
of business in Waterbury, Connecticut, where since January
2001, it has been engaged in the manufacture and nonretail sale
of brass buttons.
During the 12-month period ending July 31, 2001, the Re-
spondent purchased and received at its Waterbury operations
goods valued in excess of $50,000 directly from points outside
the State of Connecticut.
2 The record on remand did not contain the posthearing briefs of the
parties to the original trial judge. On June 16, 2006, in a conference
call with the parties, I set July 21, 2006, as the due date for submission
of briefs on remand and provided the parties the option to submit their
original brief to the original judge and/or a new brief. The General
Counsel filed a new brief on remand and the Respondent filed a sub-
stantial updated position letter. Each also submitted its original briefs.
The record also contains the parties’ original exceptions and briefs to
the Board.
3 As a result of the pleadings, the joint exhibits and stipulations of
counsel at the trial, there were few disputes of fact regarding collateral
matters. Where not otherwise noted, the findings herein are based on
the pleadings, the stipulations of counsel, and/or unchallenged credible
evidence.

O.G.S. TECHNOLOGIES, INC. 651

Based on the above, there is no dispute and I find the Re-
spondent is and has been at all times material an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
The record establishes, there is no dispute, and I find the Un-
ion is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Allegations
The complaint, as amended, alleges and the answer, as
amended, denies that the Respondent violated Section 8(a)(5)
and (1) of the National Labor Relations Act (the Act) by:

• In January 2000 and at all times thereafter failing and
refusing to recognize or bargain with the Union as the
representative of its die maker employees;
• On or about October 6, 2000, without notice to the
Union and without affording the Union an opportuni-
ty to bargain with the Respondent with respect to the
following conduct and the effects of the conduct:

o laying off die maker Michael Petroraio, and
o sub-contracting all die maker work,
o changing the job duties of its die makers or
eliminating its die maker positions.

The Respondent contends that it was at no time obligated to
bargain with the Union respecting its die maker employees or
die making operations and that the Union at relevant times
failed and refused to bargain in good faith with the Respondent.
B. Background4
For many years the Waterbury Companies Inc., d/b/a Water-
bury Button Company,5 operated a facility engaged in the man-
ufacture and nonretail sale and distribution of brass buttons.
The Union had for some time represented a unit of some 45 of
that entity’s production and maintenance employees.6 Water-
bury Companies, Inc. and the Charging Party had a collective-
bargaining agreement in place covering the unit employees,
effective by its terms from April 1997 through March 12, 2000.
The unit description in the contract stated:

All production and maintenance employees at its Water-
bury, Connecticut division, including receiving, weigh-
ing and stock clerks, but excluding office and profes-
4 The findings in this section are based on the written stipulations of
the parties received into evidence at the hearing before Judge Edelman
as Jt. Exh. 1(a).
5 In acquiring the assets and operations of Waterbury Button Com-
pany, the Respondent also used that business name. To avoid confu-
sion herein, the name Waterbury Button Company is used exclusively
to refer to the former entity and the name OGS Technologies, or the
Respondent, is used in reference to the new entity.
6 The recognition clause of the final contract referred to an earlier
Board certification of representative without further specific identifica-
tion of the date of certification.
sional employees, guards, drafters, drafting, tool room
and billing clerks, nurse, laboratory employees, expedit-
ers, timekeepers, supervisors, factory supervisors, and all
other supervisors as defined in Section 2(11) of the Na-
tional Labor Relations Act, as amended.

In the fall of 1999, Mike Salamone became interested in ac-
quiring Waterbury Button Company and formed the Respond-
ent on or about December 20, 1999, for the purpose of purchas-
ing the assets of Waterbury Button Company. Salamone was a
60-percent shareholder and president of the Respondent. Salva-
tore Geraci, until the time of the acquisition the plant manager
of the Waterbury Button Company, was a 20-percent share-
holder of the Respondent and the executive vice president of
operations. Robert J. Oppici, until the time of the acquisition
the sales manager of the Waterbury Button Company, was a 20-
percent shareholder of the Respondent and the executive vice
president of sales.
During this preparatory period the Respondent arranged fi-
nancing, conducted negotiations to purchase the Waterbury
Button Company assets, prepared financial models, employee
policies, employee handbooks, job descriptions, pay rate rang-
es, affirmative action plans, and benefit programs. During the
period January 16–22, 2000, the Respondent ran advertisements
for potential employees.
On January 21, 2000, the Respondent purchased the assets of
Waterbury Button Company from Waterbury Companies, Inc.,
including all accounts receivable, inventory, tooling, fixtures,
machinery, equipment, technical data rights, patents, trade-
marks, trade names, literature, plates, negatives, films, price
lists, customer lists, customer history files, vendor lists, open
customer purchase orders, open contracts, open vendor pur-
chase orders, display booths, office equipment, computers,
vehicles, shop supplies, products, product lines, and distributor
agreements.
On January 22 and 23, 2000, Salamone interviewed a num-
ber of applicants for positions at the acquired operation. The
applicants included a large number of former Waterbury Button
employees. Each former Waterbury Button employee was also
independently evaluated by Geraci and Oppici. During the
applicant interviews, Salamone reviewed with each applicant
the nature of cell manufacturing, the appropriate job descrip-
tion, expected duties, and generally compensation and benefits.
Former Waterbury Button employees Michael Petroraio and
Richard Carey were among those interviewed.
At the conclusion of the day on January 23, 2000, Salamone,
based on the applications, interviews and evaluations of the
applicants, took the decision to offer certain applicants em-
ployment with the Respondent with the commencement of
operations the following day. On January 24, 2000, the Re-
spondent began operations with 20 production and maintenance
employees, 19 of whom were former Waterbury Button Com-
pany employees from the represented production and mainte-
nance unit. At all relevant times thereafter, the Respondent has
continued to operate with substantially the same number of
production and maintenance employees.
The Respondent hired former Waterbury Button Company
Production Control Manager Nick Longo as its inventory con-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 652
trol manager and Waterbury Button Company Engineering
Manager Tom Wirges as its engineering manager. On January
31, 2000, the Respondent hired former Waterbury Button
Company master die cutters Michael Petroraio and Richard
Carey as “Die Engineers.”
The Respondent utilizes a “cell manufacturing concept” in
its production process compared to a more traditional process
as used by Waterbury Button Company. Thus, where Water-
bury Button Company maintained approximately 49 production
and maintenance job classifications, the Respondent maintains
9 production and maintenance job classifications. Waterbury
Button Company operated with approximately 45 employees
employed in the production and maintenance bargaining unit,
the Respondent operates with approximately 20 production and
maintenance employees. Waterbury Button Company main-
tained approximately 16 production and maintenance depart-
ments, the Respondent combined those departments into four
work “cells,” three of which are related to manufacturing.
B. Events
By letter dated January 26, 2000, Art Muzzicato, Interna-
tional representative of the United Auto Workers writing on
behalf of the Charging Party, wrote Joseph Summa, counsel for
the Respondent. The letter asserted that the Charging Party had
learned that Summa’s client had purchased the Waterbury
Companies operation, sought an immediate meeting to discuss
the terms and conditions of employment of Waterbury Compa-
nies employees and sought certain information and documenta-
tion regarding the takeover.
Following an exchange of phone calls, a meeting was held
on February 10, 2000, between Muzzicato, Charging Party
President Russ See and Respondent’s two counsels, Summa
and William Ryan, at the UAW’s regional center in Farming-
ton. Summa testified that the meeting involved heated accusa-
tions by Ryan that the Union had a contract with Waterbury and
that Summa and his client were bound to it and must rehire the
laid off employees. Ryan angrily stated in Summa’s recollec-
tion: “[T]ake this contract back.” Summa and Ryan responded
that their clients were not the former entity, had simply pur-
chased Waterbury’s assets and that the contract did not bind
their new enterprise. After the exchange of positions the meet-
ing ended.
Muzzicato testified that Charging Party President See told
the Respondent agents that the Union felt that the new and the
old companies were in “cahoots” because Sal Geraci, the for-
mer plant manager, was also a principal and high official in the
Respondent.
Summa wrote a letter dated, February 18, 2000, to Muzzica-
to which clarified the Respondent’s name, address, and the
nature of the Respondent’s acquisition. It continued:

In your letter you ask that a meeting be scheduled to
discuss the terms and condition of the Waterbury Compa-
ny employees. As stated above, OGS now owns the assets
of the old Waterbury Button Company. Further, while
OGS has hired some past Waterbury Company employees,
to date, it has not yet hired its regular compliment of em-
ployees. Thus, there is a question as to whether OGS has
a bargaining obligation with the UAW. However, it is my
understanding, that when our full compliment of employ-
ees is hired the numbers will be such that it would trigger
a bargaining obligation. Therefore I am willing to meet
with you on behalf of OGS to discuss your position with
regard to OGS’s employees.

Muzzicato testified to essentially the same events.
On March 2, 2000, Counsel Summa and Ryan met with
Muzzicato and Charging Party Business Agent Carmen Burn-
ham at the UAW Farmington, Connecticut Regional headquar-
ters. There was no agreement on whether or not See attended
the meeting. The Respondent agreed to recognize the Union as
the representative of the Respondent’s production and mainte-
nance employees and offered to sit down and bargain a con-
tract. Summa testified that President See took umbrage, assert-
ing that a contract existed and that the Respondent should
acknowledge it and hire back all the laid-off employees. Sum-
ma reiterated his position that “it’s not our obligation and we’re
willing to bargain.” Summa recalled Muzzicato said that the
Charging Party believed the Respondent was an alter ego of
Waterbury Button and was bound to the contract and that the
Union was having trouble obtaining information from Water-
bury Button about the change. Summa testified:

[The Union] said that they could not get any information from
Waterbury Companies and that they had no way to evaluate
whether or not we were an alter ego. I offered to give them
any information that we had available. I had already given
them a list of employees and the policy book and that they
asked specifically if they could get a copy of the sales agree-
ment. I said I would check with my principles. Art said that
would send out a letter what they were looking for and I said
send it to me and I’ll deal with it.

Later that day, March 2, 2000, See and Muzzicato wrote
Summa a letter the first portion of which stated:

Thank you for agreeing to recognize Local 376 as bar-
gaining agent for the Waterbury Button employees. The
Union is now attempting to determine whether OGS is ob-
ligated to honor our Waterbury Button contract. I under-
stand it to be your position that you do not have to honor
the contract.
To determine whether you are obligated to honor the
contract, the Union is requesting information that it needs
to determine whether OGS is an alter ego of the Water-
bury Companies.

The letter continued requesting various information and includ-
ed an “Alter Ego Questionnaire” to be completed by the Re-
spondent.
On March 17, 2000, the Union filed a charge against the Re-
spondent in Case 34–CA–9215, inter alia, alleging an alter ego
relationship between the Respondent and Waterbury Button
Company, challenging the Respondent’s omission to hire cer-
tain of the employees of Waterbury Button and the Respond-
ent’s failing to honor the terms of the Waterbury Button collec-
tive-bargaining agreement.
On March 21, 2000, Counsel Summa met with Muzzicato
and Burnham at Summa’s office. Summa testified Ryan was
also present. The Respondent gave the Union requested mate-
O.G.S. TECHNOLOGIES, INC. 653
rials including the Respondent’s job descriptions and arranged
to meet again the following day to give the Union time to ab-
sorb and ask questions about the material provided and to pro-
vide additional information.
On March 22, 2000, the parties met again. Muzzicato re-
called some of the events testified to by Summa as occurring on
the previous day. He recalled, however , that on the afternoon
of March 22, 2000, he received the Respondent’s job descrip-
tions. He testified further:

After those job descriptions were presented to me, I
asked Joe [Summa] about the recognition clause if they
were willing to sign the recognition clause and he ex-
plained to me the first time I heard it was that day that
there’s two classifications that he wants out of the unit
. . . The two classifications I thought he said at the time
were the die and waste engineers the die and waste treat-
ment engineers that he wanted out of the unit. He said
they are management jobs and they are more into the man-
agement area and he said—I said no I didn’t want them
out. . . . And Joe told me he said well you can take them
out and try to negotiate them back in and conversely I
thought that would become a mandatory subject and I took
the other position to leave them in and you try to bargain
them out and he said no and we got off on that position. I
asked him—after that I asked him for the job descriptions
of those—of the jobs that he wanted to take out of the unit
because I wanted to verify if they were really management
jobs or bargaining unit jobs.

Q. So you asked him for a copy of those?
A. Yes.
Q. And did you ever receive a copy of those?
A. The only time that I saw them was at the trial here.
Q. So back in December of 2001?
A. That’s when we were at trial.
Q. Okay. Why did you ask for a copy of those job de-
scriptions?
A. Basically I wanted to see if they really were man-
agement jobs or bargaining unit jobs.
Q. Now was anything else said at that meeting?
A. Yes. We started talking about the operations and
Joe didn’t understand too much about the operations. No-
body from management from the operation unit was there.
So I asked him if he would bring Salamone to the next
meeting?
Q. Salamone?
A. Salamone who was the principle owner at the next
meeting to see how the operations is going to do. He did
agree and gave me a date.

Summa testified that after the specific language of a confi-
dentiality agreement was negotiated, signed and the Respond-
ent’s sales agreement provided to the Charging Party, the par-
ties started discussing the Respondent’s provided job descrip-
tions. The Charging Party’s agents asked about the duties of
the individual positions and associated wage rates. The conver-
sation turned to the job description: master die cutter. See not-
ed that the former position of “die engineer” was not included
in the unit. The Respondent’s agents explained that the posi-
tion of master die cutter was in the unit, but that that position
had not been filled. Muzzicato responded that he was aware
that die cutters in the former unit had been hired by the Re-
spondent, but were not being treated as in the unit.
Summa testified he explained to the Charging Party agents:

I said Art [Muzzicato] these are different positions.
The primary purpose of this position the die engineer posi-
tion is to go out and find new technology to make dies that
the company believes that it cannot go forward using the
technology that is hundreds of years old. They need to go
to modern technology and that that was the primary func-
tion of these die engineers and that’s why we didn’t put
them in the bargaining unit.
. . . .

I said that—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.
[Muzzicato] said—I said look we’re willing to bargain
about this. We’ve got to negotiate a contract so we
could—we will talk about this issue of whether they are in
or out, what their duties are and we will put it on the table
with everything else. He then said well are you willing to
take the old contract and rehire all of the employees. I
said absolutely not we will go out of business. He said
well then we really have nothing to talk about and I said
well then we will have to let the N.L.R.B. decide and that
really was the end of the meeting.

Muzzicato testified the meeting ended with the expectation
they were to meet again and testified categorically that he never
told the Respondent’s agents in this meeting or any other time
that the Union had nothing to discuss with them unless they
assumed the former entity’s contract. Muzzicato added that the
Union’s counsel had told the Union negotiators that it was un-
likely the Respondent would be found an alter ego of the for-
mer entity unless the principal owners were the same and that
when Muzzicato saw the sales agreement on March 22, 2000,
he realized that the Respondent would not be found to be an
alter ego of the former enterprise and therefore would also not
be held to be bound to the old contract. Muzzicato did not con-
cede this argument to the Respondent’s agents at that time
however.
The parties disagreed respecting subsequent events. Summa
testified that he received nothing in writing and no phone
communications from the Union seeking further bargaining.
He testified that three or four times in the following period,
every few months:

Art [Muzzicato] and I would run into each other at var-
ious other clients and one of us would say something
about when we’re going to get together. The response I
normally got was are you willing to sign the contract. . . . I
would say of course not and that would be the end of it.

Muzzicato testified that while he did not request bargaining
in writing or by phone he did speak to Summa three or four
times and asked him to meet with the Union and to bring Sala-
mone to such a meeting. He reiterated that he did not tell Sum-
ma that the Respondent must adopt the former entity’s contract
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 654
and hire all its former employees, rather he just sought to bar-
gain but was always told by Summa that he would have to get
back to Muzzicato and never did so. The Union called Mark
Liburdi, president of UAW Local 712, who testified that on at
least two occasions in his presence during the period May to
September 2000, during meetings on other business with Sum-
ma and Muzzicato, he specifically recalled that Muzzicato
asked Summa about meeting with him regarding the Respond-
ent. He recalled that Summa on each occasion told Muzzicato
only that he would get back to him.
On October 6, 2000, Michael Petroraio was laid off and
Richard Carey was transferred to the position of product devel-
opment technician, a management position the job description
of which is dated October 6, 2000. The Union was neither noti-
fied respecting nor offered an opportunity to bargain concern-
ing the Respondent’s decision to take these actions nor afforded
an opportunity to bargain respecting the effects of these actions.
The Union’s alter ego charge with the Board was withdrawn
in August 2001 and the instant complaint issued that same
month. A meeting was arranged and held on October 2, 2001,
at the UAW regional headquarters between Muzzicato, See,
Summa, Ryan, and Michael Salamone. Negotiations were still-
born when the parties could not agree on the recognition clause
of any possible contract.
C. The Duties of Michael Petroraio and Richard Carey
Michael Petroraio and Richard Carey had worked for the
Waterbury Button Company for many years, serving finally
with that employer as the two master die cutters in the bargain-
ing unit. The Waterbury Button Company’s job description for
the master die-cutter position is as follows:

Perform all required duties to make master hubs and
working dies, for embossing designs on product. Requires
an intensive knowledge of cutting dies and engraving us-
ing had tools, pantographs (2-D & 3D), line engravings
machines, heat treating equipment, drop hammers and oth-
er equipment related to creation of dies. Ability to cut dies
using CAD/CAM equipment, utilizing SmartCAM or sim-
ilar type programming knowledge.
Develop, alter, repair and maintain highly intricate
embossing tools. Work from prints, models, specifica-
tions, sketches, or oral instructions to law out work. Visu-
alize finished jobs to make necessary calculations to de-
termine metal flow and other variables. Maintain extreme-
ly close tolerances in order to cut (negative/positive) dies
and hubs, or to make design changes. Instruct and set up
master templates on engraving or other embossing equip-
ments. Analyze damaged tools to recommend corrective
actions. Maintain storage of master hubs.
Detect and report defective materials, improper opera-
tion, and other unusual condition to proper supervision.
Keep work area and equipment in a clear orderly condi-
tion. Keep machines properly lubricated. Follow pre-
scribed OSHA and DEP regulations in addition to Compa-
ny policy with regard to personal safety, the safety of oth-
ers, and the proper handling or regulated materials.

Waterbury Button Company also had a position of die cutter
which, while similar, was not so skilled and did not involve the
analytical skills or the operation of the CAD/CAM SmartCAM
equipment required of master level die cutters.
The Respondent’s president, Michael Salamone, testified
that in consolidating and reforming the job descriptions of Wa-
terbury Button for the Respondent’s operations he prepared
new job descriptions for the die-cutter position and die engi-
neering position. The die engineering position was labeled an
“office/management job description” and three of the descrip-
tion’s five paragraphs tracked closely the three paragraphs of
the Waterbury Button Company’s master die-cutter position,
quoted above, with the addition of two extra paragraphs within
the description:

Seek out new methods through seminars, trade litera-
ture, internet, contacts in the industry, etc. that could be
incorporated into the work-cell that either reduces costs,
improves the quality or significantly reduces the lead time
required to produce working tools from concept to com-
pletion. Work may require day trips to consult with ven-
dors of equipment, supplied, or processes.
Through journals, seminars, Internet, etc. keep abreast
of new products and process that could be incorporated in-
to the area that either lowers manufacturing costs, im-
proves the quality, or offers something new and/ or differ-
ent that is beneficial to, or increases company revenue.

Both Petroraio and Carey were interviewed on January 30
and 31, 2000, for the die engineering position, by Salamone
who made it clear that the position was a management not bar-
gaining unit position, but that wages would be generally the
same as they had received under their former employment. The
two were also to receive the same health insurance benefits, life
insurance benefits, disability, and 401(k) plan that the produc-
tion and maintenance and all other employees would receive.
There were some differences from their previous employ-
ment. While wages and overtime was essentially equivalent, as
salaried employees they would be paid for missed days. They
would receive an hour for lunch as opposed to the half hour
lunch provided production employees. The two were also to be
provided with internet access, telephone voice mail, and a mail
box to receive correspondence.
Petroraio testified to his work experience with Waterbury
Button working with Carey and his subsequent experience with
Carey at the same location under the Respondent. He testified
that when he started with the Respondent he was told simply to
resume working on the job he had been working on under Wa-
terbury Button when he had been laid off. He was at the same
work bench, under the same supervisor, Tom Wirges. Petroraio
testified:

Q. And can you describe working for OGS as a die en-
gineer, what your duties would consist of in a typical day?
What you would do.
A. Well, they didn’t change much from when it was
Waterbury Button because they were looking to get the
jobs out that they were late. We did the tool repair, made
new forces, new dies, kept the machining centers running.
Q. Did that change after you first started? Or . . . .
O.G.S. TECHNOLOGIES, INC. 655
A. It changed a little bit but not much.
Q. How did it change?
A. We. Well, I spent a little bit of time on the internet
looking into different processes as far as an EDM and dif-
ferent software packages.
Q. What’s an EDM?
A. Electrical Discharge Machine. We use it to make
forces.
Q. And so, you said you performed some research on
how on that process, on the EDM machine?
A. Yes.
Q. And you said you spent some time on the internet
researching software packages?
A. Yes.
Q. What would they be for?
A. For the machining centers you use to cut the dies.
Q. Okay. Can you give me your best estimate of what
percentage of your daily duties were spent, the time in a
typical day, was spent doing internet research for these
purposes?
A. It would be about two percent.

Petroraio testified that as the Respondent’s employee he con-
tinued to interact with production and maintenance employees.
He also used the cafeteria for breaks and lunch until September
2000 when he and Carey were instructed by their supervisor not
to spend time with the hourly employees: “We were manage-
ment people and we shouldn’t be doing that.” He did talk with
venders, attended a trade show, and passed along sales repre-
sentative reports, but had done similar things when with Water-
bury Button. He could inform his supervisor if equipment
“looked good,” but his recommendations based on the research
he had undertaken had never been followed. In a characteriza-
tion proposed by the counsel for the Respondent during his
cross-examination, the Respondent’s operation as compared to
the former process under Waterbury Button did not seem to be
much different in his work area.
Carey also testified respecting his duties and responsibilities
as an employee of the Respondent. He described a position
much more directed toward searching out technology and co-
operating with other employees such as graphic art-
ist/programmer Heidi Gomez Kitchin. After his direct exami-
nation by counsel for the Respondent concluded, during the
beginning of cross-examination, Carey testified that he had left
the die engineer position at the time Petroraio was laid off.
That position was no longer staffed after October 6, 2000, and
he had became the product development technician, a manage-
ment position heavily centered on new product and processing
research and development on that date.
Carey testified that until Petroraio was laid off Petroraio was
the primary interface with management and supervision. It was
only after Petroraio’s layoff, Carey testified, that he worked
more closely with supervision on developing new technology
and determining subcontracting by vendor sourcing and budget-
ing.
D. Analysis and Conclusions
1. Credibility determinations
The great bulk of the record is free of disputed testimonial
evidence. Two areas however are important to the resolution of
the allegations: the testimony of Petroraio and Carey respect-
ing their work for the Respondent and the testimony of Muzzi-
cato and Summa respecting their negotiations and conversa-
tions on behalf of their clients. These disputed areas are treated
separately below.
a. The Board’s instructions and the parties’ positions on credi-
bility determinations
The Board in its Order Remanding Proceedings, 347 NLRB
299, 299 fn. 3 (2006), provided:

The new judge may rely on Judge Edelman’s demean-
or-based credibility determinations unless they are incon-
sistent with the weight of the evidence. If inconsistent with
the weight of the evidence, the new judge may seek to re-
solve such conflicts by considering “the weight of the re-
spective evidence, established or admitted facts, inherent
probabilities, and reasonable inferences which may be
drawn from the record as a whole.” RC Aluminum Indus-
tries, Inc., 343 NLRB 939, 939 fn. 2 (2004), quoting
Daikichi Sushi, 335 NLRB 622, 623 (2001) (internal quo-
tation marks and citations omitted). Alternatively, the new
judge may, in his/her discretion, reconvene the hearing
and recall witnesses for further testimony. In doing so, the
new judge will have the authority to make his/her own
demeanor-based credibility findings.

The General Counsel and the Respondent directed substan-
tial portions of their filings with me to the proper treatment of
Judge Edelman’s credibility findings. The General Counsel
argued that Judge Edelman’s credibility determinations were
his own, that the weight of evidence requires that the credibility
resolutions remain undisturbed, that the passage of time makes
the recall of witnesses impractical and their testimony unrelia-
ble and, finally, that the equities involved demand that the mat-
ter not be delayed by reconvening a hearing. The Respondent
argues that the original decision herein was tainted as the Board
found in its remanding order and that the credibility resolutions
in the original decision are unsustainable for that reason and
further because they “strain credulity.” Thus they should be
disregarded.
To the extent the parties’ arguments regarding the original
decision’s credibility resolutions seek to expand, contract or
change the Board’s specific instructions on remand, quoted in
part above, they must fail. The Board’s instructions to me are
not suggestions they are commands. In that light, I have care-
fully considered the instructions of the Board to me to consider
whether or not to rely on those original credibility resolutions
which are not inconsistent with the weight of evidence. I have
made such a case-by-case determination based on the record as
a whole and did not simply consider all the credibility findings
of Judge Edelman as an undivided whole and whether or not
they should be automatically accepted or rejected as a totality.
As set forth in detail below, I have specifically followed the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 656
Board’s quoted instructions in making individual credibility
determinations herein. In each such determination, as is set
further in specific instances below, I have considered the de-
meanor-based credibility determinations of Judge Edelman as
reflected in his decision by considering the weight of the re-
spective evidence, established or admitted facts, inherent prob-
abilities, and reasonable inferences which may be drawn from
the record as a whole. Despite my consideration of the various
credibility resolutions were taken independently of one another,
in no case have I found Judge Edelman’s demeanor-based cred-
ibility determinations inconsistent with the weight of the evi-
dence.
The Board’s instructions further provided me with the dis-
cretion to reconvene the hearing and recall witnesses for further
testimony to make my own demeanor-based credibility findings
if I found it necessary and appropriate to do so. On this record,
respecting Judge Edelman’s demeanor-based credibility deter-
minations, I find there is simply no need to do so. Rather, ex-
ercising the discretion granted me by the Board, I find it is ap-
propriate to, and I shall, rely on each of Judge Edelman’s de-
meanor-based credibility determinations as set forth in his deci-
sion.
The great bulk of the record is free of disputed testimonial
evidence. Two areas however are important to the resolution of
the allegations: the testimony of Petroraio and Carey respecting
their work for the Respondent and the testimony of Muzzicato
and Summa respecting their discussions and conversations on
behalf of their clients. These important areas of dispute are
treated separately below and the arguments of the parties have
been considered and applied within the scope of the Board’s
instructions.
b. Muzzicato–Summa credibility determination
The testimony of Muzzicato and Summa respecting their
meetings and conversations is set forth in part above. It is high-
ly relevant to the issues herein and at substantial variance.
Each side advanced the version of events of its own witness and
based its legal arguments largely on its own witnesses’ facts.
The Respondent notes that Judge Edelman initially rejected
the Respondent’s offer of evidence respecting certain bargain-
ing and that he thereafter had a preconceived attitude that pre-
cluded a fair consideration of the conflicting evidence, ulti-
mately crediting the farfetched and improbable testimony of
Muzzicato over the more plausible testimony of Summa. The
General Counsel urges that the credibility resolution at issue are
demeanor based and were independently arrived at, free from
the other matters which generated the remand.
Judge Edelman, in his decision at 347 NLRB at 306, found:

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 Muz-
zicato a more credible witness. Therefore, where there are
inconsistencies in testimony, I credit Muzzicato.

Beyond the quoted summary of his credibility resolution of
Muzzicato over Summa, Judge Edelman discussed various
areas of factual conflict between the two, consistently finding
Muzzicato’s testimony the more credible and ultimately based
his relevant findings thereon.
As noted above, Judge Edelman’s credibility resolutions
were not rejected by the Board as such. Further the Board not-
ed in its remand order: “We will not order a hearing de novo
because our review of the record satisfies us that Judge Edel-
man conducted the hearing itself properly.” I have considered
the testimony of Muzzicato and Summa in the light of the rec-
ord as a whole and the arguments of the parties in applying the
Board’s instructions to this credibility resolution. Applying
that standard here, I cannot find that Judge Edelman’s credibil-
ity resolutions favoring Muzzicato over Summa is inconsistent
with the weight of the evidence. In reaching this determination
I have considered in the balance, as the Board instructs, the
weight of the respective evidence, established or admitted facts,
inherent probabilities, and reasonable inferences which may be
drawn from the record as a whole. Nor do I find it is necessary
or desirable to reconvene the hearing to consider the testimony
in disputed areas de novo.
Judge Edelman made detailed findings respecting the de-
meanor-based credibility resolution of the Muzzicato-Summa
testimony, which I have found above are not inconsistent with
the weight of the evidence. I find and conclude that it is appro-
priate to rely on them in resolving the issues herein. I therefore
credit the testimony of Muzzicato over that of Summa where
the two differ. The version of events of Muzzicato as set forth
in part above is credited over the version of Summa also set
forth in part above.
c. Petroraio–Carey credibility determination
Petroraio and Carey were the only two die engineers for the
Respondent at relevant times and gave important testimony
respecting their duties and responsibilities. Their testimony
respecting their job duties was at substantial variance although
it was not altogether clear that Carey’s testimony respecting
what he did for the Respondent was directed to his period of
service as a die engineer rather than in a subsequently held
position.
Counsel for the Respondent contended at the hearing that
Petroraio’s testimony respecting his activities as an employee
of the Respondent was not “100% truthful in terms of what he
did or what he is saying he did versus what he actually did.”
Similarly in its position statement the Respondent challenged
Judge Edelman’s crediting in its entirety the testimony of Petro-
raio arguing: “in so doing he ignored inconsistencies in such
testimony and positions that strained credulity.” (The Respond-
ent’s position statement at fn. 1 p. 2.) The Respondent rather
favored the testimony of Carey and argues his credibility over
Petroraio. The Charging Party and the General Counsel chal-
lenged that view and advanced the testimony of Petroraio over
that of Carey.
Judge Edelman, in his decision at id. at 301, found:

Where there are any inconsistencies between Carey
and Petroraio’s testimony, I credit Petroraio. I was gener-
ally impressed with Petroraio’s demeanor. His testimony
was detailed, and consistent during both direct and cross-
examination.
O.G.S. TECHNOLOGIES, INC. 657
Carey, on the other hand, was at times vague and in-
consistent. For example, although Carey initially testified
on direct examination that he spent approximately 50 per-
cent of his work time engaged in seeking out new technol-
ogies, it became clear on 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 Technician.”

Beyond the quoted summary of his credibility resolution of
Petroraio over Carey, Judge Edelman discussed the various
areas of factual conflict between the two finding Petroraio’s
testimony the more credible and based his findings thereon.
Relying on the Board’s instructions as quoted and discussed
above, and essentially for the same reasons as set forth above, I
find that Judge Edelman’s findings respecting the demeanor-
based credibility resolution of the Petroraio-Carey testimony
are not inconsistent with the weight of the evidence and I rely
on them. I therefore credit the testimony of Petroraio over that
of Carey where the two differ. The version of events of Petro-
raio as set forth in part above is credited over the version of
Carey also set forth in part above. The fact that Carey had had
a job change which was not made clear during the trial before
he was far into his testimony, so that it was difficult to ascertain
with precision which job he had addressed in certain elements
of his earlier testimony, was a relevant fact adding support to
the findings made by Judge Edelman, which I here adopt.
2. The legal arguments of the parties
a. Basic areas of agreement
In order to focus on the issues dividing the parties, it is ini-
tially appropriate to set forth the general areas of agreement of
the parties. The parties agree that the Respondent is a succes-
sor to the former Waterbury Button Company within the mean-
ing of Fall River Dying Corp. v NLRB, 482 U.S. 27 (1987).
The parties further agree that the Respondent, on March 2,
2000, recognized the Union as the representative of a produc-
tion and maintenance employee unit, but had made it clear to
the Union by March 22, 2000, that the recognition of the Un-
ion as representative of the production and maintenance unit
did not include recognition within that bargaining unit of its
two employees in the position of die engineer, Michael Petro-
raio and Richard Carey, who had been employed in the former
entities production and maintenance bargaining unit as master
die cutters. Finally, the parties agree that the Union asserted the
position the two employees were by rights in the bargaining
unit.
The parties agree that an employer who succeeds as the Re-
spondent did herein to the operations of another employer is not
bound to simply continue the operations of its predecessor, but
may before it has incurred any bargaining obligation change its
technology and redo the number and type of job positions it
utilizes without hindrance under the Act. It follows that if a job
position or positions, formerly within the predecessor employ-
ers bargaining unit, has been so changed that it is no longer
appropriately part of such a bargaining unit, then there is no
obligation on the part of the new or successor employer to in-
clude that position or positions within the new unit. Converse-
ly, and again without apparent dispute between the parties, if a
job position or positions, is carried forward unchanged, or
changed but still appropriately within the appropriate collec-
tive-bargaining unit, the successor employee must include its
employees in those positions in the bargaining unit for which it
has granted union recognition. Put more generally, the new
employer may change terms and conditions of employment, but
it does not have license simply to rely on its unsupported pref-
erences or fictitious job content labeling, rather than actual job
content, to withhold certain job positions from the recognized
unit.
b. Basic areas of disagreement between the parties
Three basic areas of dispute divide the parties. The parties
strongly disagree on the appropriate composition of the bar-
gaining unit at the time of initial recognition. The Respondent
contends that the unit did not properly include the position of
die engineer nor the two individuals who occupied that posi-
tion. The General Counsel and the Charging Party argue that
that the die engineer position and the two individuals at issue
were properly indeed necessarily in the successor bargaining
unit when the predecessor ended its operations and should have
been included in the successor’s production and maintenance
bargaining unit when the Respondent took over and resumed
operations.
The parties equally dispute whether or not the Respondent
had an obligation to bargain over the subcontracting out of die
work, the elimination of the position of die engineer held by
Petroraio and his layoff as well as the change in the job content
of die engineer Carey. The Respondent argues initially, as
noted above, that the position and individuals were never
properly within the bargaining unit and therefore the Respond-
ent never had any obligation whatsoever to bargain respecting
them. Further, the Respondent argues that the subcontracting
and the die engineer position’s discontinuance as to Petroraio
and job content change of Carey were inextricably part of a
decision by the Respondent to utilize high technology subcon-
tractors in its die making operation—a matter that lay at the
core of its business enterprise. Thus, the Respondent argues
under First National Maintenance Corp. v. NLRB, 452 U.S.
666 (1981), it had no obligation to bargain respecting this
change in all events. The General Counsel and the Charging
Party simply reject the Respondent’s First National Mainte-
nance theory and argue the record facts do not support such a
theory.
Finally, the parties are in dispute over the consequences of
the Union’s bargaining during the relevant period and the ap-
propriate remedy which should be involved given all the rele-
vant circumstances. Thus, the Respondent argues the Union
took an all or nothing position during bargaining which, in
requiring the Respondent to adopt the former employer’s col-
lective-bargaining agreement as a predicate to any further nego-
tiation, prevented any good-faith bargaining on the matters at
issue to occur. And the Respondent argues that the remedy
sought by the General Counsel herein is inappropriate to any
possible finding of a violation. The General Counsel and the
Charging Party dispute these contentions on their facts.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 658
3. Did the Respondent have an initial obligation to include
the die engineer position and the two die engineer
employees in the recognized unit
There is no question and I find that the unit placement of the
die engineer position and the two die engineers involved, Petro-
raio and Carey, is one of fact rather than law. A Fall River
successor employer has no obligation to carry forward the unit
structure of the predecessor employer and may rather, if not for
impermissible reasons, add, subtract, rearrange, or transmute its
employment complement including the bargaining unit or units
of the previous employer. Such a successor employer, howev-
er, remains subject to the normal Board statutory and decisional
law respecting collective-bargaining unit inclusion and exclu-
sion. No employer may simply by fiat include or exclude posi-
tions or individuals in a bargaining unit based on whim or wish
independent of determinative facts relevant to such unit place-
ment.
The Respondent’s argument as to this aspect of the case has
several particulars. First counsel challenges Judge Edelman’s
credibility findings in their entirety and urges I not rely on any
of his findings.7 The General Counsel disagrees particularly as
to those findings favorable to the General Counsel’s case. As
noted above, I have carefully considered the credibility findings
of Judge Edelman consistent with the Board’s instructions.
Applying those instructions I found Judge Edelman’s credibil-
ity resolutions as set forth above to be consistent with the
weight of evidence and I find it appropriate to reply on them
and do so throughout this decision. As to this aspect of the
Respondent’s arguments then, I reject it in its entirety.
The Respondent does not limit its factual argument to an at-
tack on Judge Edelman’s findings. Further, counsel for the
Respondent argues that Judge Edelman failed to consider cer-
tain factual elements relevant to the unit question. Thus, coun-
sel argues, inter alia, that the Respondent made changes in the
predecessor employer’s system, including the integration of the
operations of the die engineers with Graphic Designer Kitchin.
Further the die engineer positions were classified “salaried
exempt” as opposed to “hourly” as production and main-
taintence unit employees were described and paid. Further, the
two employees had new reporting requirements, their own
phone and voice mail, computers, and Internet access. The
Respondent argues these facts establish, contrary to Judge
Edelman’s findings, that the die engineers lacked a community
of interest with the production and maintenance unit employees
and should simply not be considered ever to have been part of
the unit.
I have considered the arguments of counsel on behalf of the
Respondent as to the unit issue without relying on the legal
analysis of Judge Edelman. I do not find that the facts empha-
sized by the Respondent are sufficient to overcome the strong
contrary facts presented. Further, given the specificity of Judge
Edelman’s crediting of Petroraio’s detailed testimony over
Carey as to what was done by the two at relevant times, I also
do not find the evidence offered sufficiently credible to over-
7 Judge Edelman’s legal analysis was set aside by the Board in its
remanding order and has not been considered or relied on herein.
come the finding made by Judge Edelman in crediting Petroraio
that, as to the die engineers, things under the Respondent were
as they had been under the previous employer and that the ar-
gued changes advanced by the Respondent were paper or in-
choate, putative, descriptions of matters never put into place or
practice at relevant times. Accordingly, I reject the argument
of the Respondent and find that at the time of the initial recog-
nition, and all times subsequent, the appropriate collective-
bargaining unit should have included, and did in fact include,
the die engineer position and the two die engineers.8
4. Was the Respondent’s obligation to include the die engineer
position and die engineer employees in the recognized
bargaining unit modified by subsequent events
The Respondent argues that there was no doubt that the pre-
decessor employer and its own operations initially involved
subcontracting die engineer work and that the bulk of the dies
used were made by outside vendors. As the Respondent’s op-
erations continued, alternatives were rejected as impractical and
a decision was taken by management:

[T]hat the best way to improve the die making turnaround
time was to cease doing business with hand-made die vendors
and form relationships with the best of the subcontractors who
had already invested in and perfected the laser and EDM
equipment. (Respondent Counsel, June 29, 2006, Summary
at 4.)

Counsel for the Respondent argues this decision which includes
changes in the extent of subcontracting, the layoff of die engi-
neer Petroraio and the job change of Carey is in its totality ex-
empt from a normal bargaining obligation. Thus, counsel ar-
gues:

Simply stated, OGS’s decision to utilize high-tech
subcontractors in its die-making operations concerned a
matter that lay at the core of its business enterprise. The
Company had a fundamental right to choose its course
without first having to seek agreement from the Union,
and it exercised that right, making a completely lawful de-
cision to subcontract. See First Maintenance Corp. v. Na-
tional Labor Relations Board, 452 U.S. 666 [alternate cita-
tions omitted.] (1981). (Respondent Counsel, June 29,
2006, Summary at 4.)

The General Counsel challenges the argument of the Re-
spondent asserting that the subcontracting/layoff decision of the
Respondent was a traditional matter and mandatory subject of
bargaining. Counsel for the General Counsel argues the Re-
spondent’s claim of shelter under the First Maintenance doc-
trine is inapposite under Torrington Industries, 307 NLRB 809
(1992). The General Counsel relies on Torrington’s holding, at
811:

We simply find that the Respondent has not shown that its de-
cision to replace them through subcontracting was dictated by
8 Counsel for the Respondent’s apparent offer to bargain about in-
cluding the individuals is immaterial inasmuch as a bargaining over the
unit is a nonmandatory subject of bargaining which was clearly rejected
by the Charging Party at relevant times.

O.G.S. TECHNOLOGIES, INC. 659
any core entrepreneurial reasons. No substantial commitment
of capital or change in the scope of the business would be in-
volved in negotiating with the Union over, for example, trans-
ferring the truck, but not the driver, or making a ready-mix
truck available to Marshall and Blair. Thus, whether or not the
Respondent’s decision to replace them with nonunit personnel
was motivated by labor costs in the strictest sense of that term,
the fact remains that the decision clearly involved unit em-
ployees’ terms of employment and it did not “lie at the core of
entrepreneurial control.” (Stewart, J., concurring). [Fibre-
board Corp. v. NLRB, 379 U.S. 203 (1964) at 223.]

See also Winchell Co., 315 NLRB 526 (1994).
I agree with the General Counsel that the Respondent did not
demonstrate on this record that its decisions involved in the
subcontracting and associated discontinuance of the die engi-
neering position, the layoff of Petroraio and the job change of
Carey, were at “the core of entrepreneurial control” and hence
beyond the reach of traditional bargaining.
The Respondent argues that at least some of its die work had
always been subcontracted and a fundamental technological
decision was taken to change the way such subcontracting work
was done. While it is correct that the proportion of die subcon-
tracting was changed. Simply put however, on the instant rec-
ord, the Respondent simply failed to establish that these matters
were at the core of entrepreneurial control as required by Tor-
rington.
It follows therefore that the Respondent bore a normal bar-
gaining obligation respecting the matters at issue herein.
5. Was the Respondent’s obligation to bargain respecting the
discontinuation of employment of die engineers, the layoff of
Petroraio, and the transfer to a nonunit position of Carey
altered by the Charging Party’s bargaining conduct
There is no doubt that the Charging Party sought to have the
Respondent adopt the predecessor employer’s contract. Be-
yond that fact the testimonial versions of Charging Party nego-
tiator Art Muzzicato and Respondent negotiator Joseph Summa
different sharply regarding their later communications. Judge
Edelman made extensive credibility resolutions respecting the
conflicting testimony in these regards. I have considered that
testimony in light of the Board’s instructions at some length as
described above and, on the same basis as set forth above, have
determined it is appropriate to accept the credibility resolutions
of Judge Edelman.
That being so and in reliance on those credibility resolutions
as discussed above, I find that the Charging Party did not en-
gage in any “take it or leave it” bargaining which would have
reduced its rights and remedies under the Act in this matter.
Rather I find that the Union sought on several occasions to
bargain respecting the unit and the Respondent’s agent consist-
ently avoided doing so. In making these findings I credit Muz-
zicato over Summa.
6. Summary and conclusion
I have found above that in early 2000 the Respondent was a
successor employer to a production and maintenance collective-
bargaining unit which properly included a die engineer position
which was occupied by two individuals: Mike Petroraio and
Rich Carey. Further I have found that the Respondent recog-
nized the Charging Party Union on or about February 2000, as
the representative of its unit of production and maintaintence
employees, but specifically withheld granting the Union recog-
nition of the die engineer position or of Mike Petroraio and
Rich Carey in those positions. I find that this refusal to include
them in the unit was not accepted or agreed to by the Union.
I have further found that on or about October 6, 2000, with-
out providing notice to or an opportunity to the Union to bar-
gain about either the decision or its effects, the Respondent laid
off die engineer Petroraio and changed the job title and job
content of die engineer Carey.
I find that the Respondent by engaging in the conduct set
forth above violated its duty to recognize and bargain with the
Union respecting all members of the appropriate collective-
bargaining unit and therefore violated Section 8(a)(1) and (5) of
the Act. I therefore sustain the complaint allegations alleging
such conduct.
REMEDY
Having found that the Respondent violated the Act as set
forth above, I shall order that it cease and desist therefrom and
post remedial Board notices. As is traditional in unilateral
change violation cases, I shall order that the Respondent restore
the status quo ante and provide the Union with notice and an
opportunity to bargain respecting any future proposed changes
and their effects. The Respondent’s argument for special lesser
remedies on this record is not persuasive.
I shall also require the Respondent to offer to restore Mike
Petroraio to his former position as die engineer and make him
whole for any loss of wages and benefits he may have suffered
by virtue of his wrongful layoff, with interest. Back pay shall
be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On the basis of the above findings of fact and the record as a
whole and Section 10(c) of the Act, I make the following
CONCLUSIONS OF LAW
1. The Respondent is, and has been at all times material, an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Charging Party is, and has been at all relevant times, a
labor organization within the meaning of Section 2(5) of the
Act.
3. The Charging Party represents the Respondent’s employ-
ees in the following collective-bargaining unit, which is appro-
priate for bargaining within the meaning of Section 9 of the
Act:

All production and maintenance employees at its Waterbury,
Connecticut division, including die engineers, receiving,
weighing and stock clerks, but excluding office and profes-
sional employees, guards, drafters, drafting, tool room and
billing clerks, nurse, laboratory employees, expediters, time-
keepers, supervisors, factory supervisors, and all other super-
visors as defined in Section 2(11) of the National Labor Rela-
tions Act, as amended.

4. The Respondent violated Section 8(a)(5) and (1) of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 660
Act by failing and refusing to recognize and bargain with the
Charging Party with respect to the production and main-
taintence bargaining unit:
(a) By at all times material failing and refusing to recognize
the unit as including the position of die engineer or of individu-
als Mike Petroraio and Rich Carey.
(b) By subcontracting out all die work without providing no-
tice to or an opportunity to the Union to bargain respecting the
decision to discontinue all of the work or the effects of that
discontinuance.
(c) By laying off die engineer Mike Petroraio without
providing notice to or an opportunity to the Union to bargain
respecting the decision to discontinue that position or the ef-
fects of the layoff.
(d) By changing the job content and duties of die engineer
Rich Carey without providing notice to or an opportunity to the
Union to bargain respecting the decision or its effects.
5. The unfair labor practices described above are unfair labor
practices within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]