Pinnacle Metal Products Co.

National Labor Relations Board - Board Decisions

Jul 19, 2002

337 N.L.R.B. 806 (N.L.R.B. 2002)

806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Pinnacle Metal Products Company f/k/a The Wilkie
Company and Local Lodge 670, District Lodge
97, International Association of Machinists and
Aerospace Workers, AFL–CIO. Cases 7–CA–
42013, 7–CA–42030, 7–CA–42083, and 7–CA–
42106
July 19, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND COWEN
On October 6, 2000, Administrative Law Judge Tho-
mas R. Wilks issued the attached decision. The Respon­
dent filed exceptions and a supporting 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 and
to adopt the recommended Order as modified below.2
This case involves an unfair labor practice strike. As
the judge explained, unfair labor practice strikers who
make an unconditional offer to return to work are entitled
to reinstatement. The judge correctly found that the Un­
ion made such an offer on behalf of all striking employ­
ees.
Respondent contends that the Union’s offer of April 30
regarding a return to work was unambiguous, i.e., that
the Union was making an offer only with respect to those
who would show up on May 3. (Only 21 of 35 showed
up.) We disagree.
The Union’s April 30 letter said that:
The members of [the Union] offer to make an uncondi­
tional return to work . . . . Pickets will come down ef­
fective Saturday May 1, 1999. Members of [the Un-
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis­
trative law judge’s credibility resolutions unless the clear preponder­
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
There were no exceptions to the judge’s dismissal of allegations that
the Respondent unlawfully changed the job classification and duties of
striker David Bates Jr., and unreasonably required him to memorize
certain policies within a limited time period not required of nonstriking
employees.
2 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001). Further, we shall substitute a new notice in accordance with
our recent decision in Ishikawa Gasket America, Inc., 337 NLRB 175
(2001).
ion] will be returning to work on Monday, May 3,
1999.
The Union’s offer of “an unconditional return to work” was
explicitly made on behalf of “the members” of the Union:
that is, all represented employees. The reference to the pro­
spective date on which employees would return to work
(May 3) cannot fairly be read as limiting the category of
employees on whose behalf the offer was made. Certainly,
the Union did not say that its offer was so confined. The
fact that only 21 employees ultimately reported on May 3,
in turn, does not retroactively establish any limitation on the
offer, or indicate that the offer to return had been rescinded
by the other 14 employees.
The judge concluded that the Union’s offer of return
was, at most, ambiguous. In this regard, he relied on the
language of the April 30 letter and a conversation on
May 10. As noted above, we find no ambiguity in the
April 30 letter. As to May 10, Respondent purportedly
asked whether additional strikers would be attending the
orientation session held that day. (Only 5 had shown
up.) In our view, that question does not establish that
Respondent was confused about some supposed ambigu­
ity in the Union’s offer. Indeed, Respondent does not
even contend that there was an amb iguity.3
3 We adopt the judge’s finding that the Respondent was not priv i­
leged to apply its drug testing policy to returning strikers. In contrast to
our dissenting colleague, we do not find that the strikers are reasonably
encompassed within the terms of the policy. The scope of the policy is
quite specific. It applies to “employees returning from a leave of ab­
sence or layoff in excess of two (2) weeks.” According to the terms of
the Respondent’s February 14, 1998 final offer (which it implemented),
a “leave of absence” is an exception to the Respondent’s absenteeism
policy. It is a form of leave that “shall not be considered an absence
occurrence,” provided that “proper arrangements . . . must be made in
advance of the absence and . . . the employee must present satisfactory
evidence to substantiate his reason for absence on the first day he re-
turns to work.” A layoff, which occurs at the sole discretion of the
Respondent, is a “discontinuation of or reduction in any scheduled . . .
[40-hour] workweek.” The strikers do not fit within either class of
employees covered by the drug testing policy. In any case, we agree
with our colleague that the Respondent discriminatorily applied to
strikers a drug testing requirement that differed significantly from the
terms of the final offer and, accordingly, violated the Act.
In adopting the judge’s findings and conclusion that the Respondent
failed to make a valid, unconditional acceptance of the offer of imme­
diate reinstatement, Chairman Hurtgen particularly relies on the find­
ings that: (a) the Respondent’s May 4 letter was no more than an offer
of consideration for employment, preconditioned upon passing a drug
test; (b) the Respondent was not privileged to implement its drug test­
ing policy, which was not reasonably encompassed within its pre-
impasse proposal; and, (c) the drug testing policy was a discriminatory
condition of employment unlawfully imposed upon employees who had
engaged in concerted, protected strike activ ities. This is not to say that
an employer may never require returning unfair labor practice strikers
to take a drug test pursuant to a lawfully promulgated, non-
discriminatory testing policy, once the strikers have been uncondition­
ally reinstated. In the instant case, the “drug-testing” condition was not
337 NLRB No. 128
PINNACLE METAL PRODUCTS CO. 807
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Pinnacle
Metal Products Company f/k/a The Wilkie Company,
Muskegon, Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(d) of the
recommended Order.
“(d) 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 payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
2. Substitute the attached notice for that of the admin­
istrative law judge.
MEMBER COWEN, concurring and dissenting in part.
Contrary to my colleagues I find that the Respondent
was privileged to apply its drug testing policy to return­
ing strikers. In this regard the record clearly shows that
during the term of the strike the Respondent lawfully
implemented a revised drug policy that states, in part,
that “employees returning from a leave of absence or
layoff in excess of two (2) weeks may be required to
submit to urine and/or blood tests or other similar testing
methods.” In my view, employees who have been on
strike for over 12 months are reasonably encompassed
within this revised drug testing policy and therefore Re­
spondent was privileged to apply this policy to returning
strikers. Nevertheless, I agree with the judge’s further
finding that the Respondent did not actually apply its
revised drug testing policy to the returning strikers. To
the contrary, in its May 4 letter to returning strikers, Re­
spondent went beyond its existing revised drug policy
and announced that returning strikers would be required
to pass a drug screen prior to being reinstated. Accord­
ing to the testimony of Respondent’s production man­
ager, Respondent’s revised drug policy did not preclude
reinstatement for a positive drug test, but such an em­
ployee would be allowed to pursue rehabilitation after
reinstatement. Because the evidence demonstrates that
the Respondent imposed more onerous conditions on
returning strikers than were contained in its revised drug
a lawful one. Thus, the Respondent did not make a timely, valid, un­
conditional offer of reinstatement to the striking employees and, thus,
violated the Act.
policy, I agree with my colleagues that Respondent did
not fulfill its obligation to reinstate striking employees
who had made an unconditional offer to return to work.1
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we vio­
lated the 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 discharge, delay reinstatement, or fail to
make a valid offer of immediate reinstatement to bar-
gaining unit employees who joined in the unfair labor
practice strike that commenced on February 2, 1998, and
who thereafter made an unconditional offer on April 30,
1999, to return to work.
WE WILL NOT unilaterally and discriminatorily condi­
tion consideration of the above strikers upon the success­
ful passing of a drug and alcohol abuse test without prior
notice to or bargaining with Local Lodge 670, District
Lodge 97, the exclusive bargaining representative under
the Act for employees in the following appropriate unit:
All production and maintenance employees of Respon­
dent at our Muskegon, Michigan plant; excluding of­
fice or clerical emp loyees, professional employees,
foremen and guards and supervisors as defined in the
Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer to those employees who joined the unfair
labor practice strike that commenced February 2, 1998,
1 With regard to the identity of the returning strikers, I disagree with
my colleagues’ interpretation of the union’s April 30 offer to return to
work. In my view, the Respondent reasonably interpreted the union’s
letter as indicating that the employees that wished to return to work
would show up on May 3. Since only 21 of 35 employees actually
presented themselves on that date I would limit the remedy in this case
to those employees.
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and for whom unconditional offers to return to work
were made on April 30, 1999, including those whom we
discharged, immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substan­
tially equivalent positions, without prejudice to their sen­
iority or any other rights or privileges previously en-
joyed, discharging if necessary any replacements, and
make whole those employees, including those for whom
we delayed reinstatement, for any losses of earnings or
benefits suffered as a result of our conduct.
WE WILL rescind the discriminatory and unilaterally
imposed drug and alcohol abuse policy of May 4, 1999,
which required the taking and successful passing of a
drug and alcohol abuse test as a precondition for rein-
statement consideration of bargaining unit striking em­
ployees who have made an unconditional offer to return
to work.
WE WILL bargain in good faith with the Union about
the terms and conditions and applicability of drug and
alcohol abuse tests for striking bargaining unit employ­
ees who make an unconditional offer to return to work.
PINNACLE METAL PRODUCTS COMPANY F/K/A
THE WILKIE COMPANY
A. Bradley Howell, Esq., for the General Counsel.
Robert W. Sikkel, Esq. and Robert A. Dubault, Esq. (Warner
Norcross & Judd LLP), of Muskegon, Michigan, for the
Respondent.
William C. Rudis, of Cincinnati, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. The original
unfair labor practice charges and amended charges in the
above-captioned cases were filed on numerous dates commenc­
ing on May 7 and ending July 30, 1999, by Local Lodge 670,
District Lodge 97, International Association of Machinists and
Aerospace Workers, AFL–CIO (the Union), against The Wilkie
Company and Pinnacle Metal Products Company f/k/a The
Wilkie Company (the Respondent).
On July 30, 1999, the Regional Director issued a consoli­
dated complaint against the Respondent.
The consolidated complaint,1 as amended at trial, alleges that
the Respondent has engaged in, and continues to engage in,
unfair labor practices within the meaning of Section 8(a)(1) and
(3) of the Act by failing to offer reinstatement to returning un­
fair labor practice strikers since May 3, 1999, after the Union
1 GC Exh. 1(q). In the transcript, the formal papers are incorrectly
referred to as GC Exhs. 1(a) through (b), with 1(b) being the index and
description of formal documents. This is a typographical error. The
transcript should state that formal papers are GC Exhs. 1(a) through (v)
with 1(v) being the index of formal documents. The record is corrected
to reflect that the formal papers are GC Exhs. 1(a) through (v), with GC
Exhs. 1(v) being the index and description of formal documents.
had made an unconditional offer on behalf of all of them to
return to work; by delaying the reinstatement of strikers; by
terminating strikers who did not respond to an invalid offer of
reinstatement; by placing conditions upon their return such as
requiring returning strikers to take a drug screening test and to
sign an individual at-will employment agreement; by changing
the job classification and duties of a returning striker; and by
unreasonably requiring a returning striker to memorize job
qualifications within a limited time period not required of non-
striking employees. Further, the consolidated complaint alleges
that the Respondent violated Section 8(a)(1) and (5) of the Act
by unilaterally changing terms and conditions of employment
without bargaining in good faith, such as the implementation of
the drug screening requirement, the implementation of the “at-
will” employment term as a condition of the strikers being rein-
stated, and changing an employees’ job classification and job
duties.
The Respondent filed its answer on August 13, 1999. The
Respondent denied the commission of unfair labor practices
and argues that the Union made a limited offer of reinstatement
on behalf of only those strikers who appeared for work on a
certain date; that the Respondent made a timely valid offer of
reinstatement to those who did appear; that only a few of those
strikers responded to its offer of reinstatement and that those
few either failed to report for work or rejected its offer; that the
Respondent imposed no discriminatory condition upon return­
ing strikers; and that its delay in the offer of reinstatement to
three strikers was the consequence of a reasonable investigation
of their alleged strike misconduct. The Respondent further
argues that the requirement of a drug test for returning strikers
was imposed pursuant to a revised drug policy which had been
negotiated and tentatively agreed upon with the Union in con-
tract negotiations, which subsequently resulted in good-faith
impasse. The Respondent argues that it thus lawfully imple­
mented the drug test on a nondiscriminatory basis to all em­
ployees returning from work absence, including earlier return­
ing crossover strikers.
The issues raised by the pleadings were tried before me on
November 3, 4, and 5, 1999, and April 10 and 11, 2000, in
Grand Rapids, Michigan, at which time and place all parties
were given opportunity to adduce relevant evidence, to argue
orally, and to submit posttrial briefs. Briefs by the General
Counsel and the Respondent were received at the Division of
Judges on May 22, 2000.
The briefs submitted by the parties fully delineate the facts
and issues and, in form, approximate proposed findings of facts
and conclusions. Portions of those briefs have been incorpo­
rated herein, sometimes modified, particularly as to undisputed
factual narration. However, all factual findings herein are
based upon my independent evaluation of the record. Based
upon the entire record, the briefs, and my observation and
evaluation of the witnesses’ demeanor, I make the following
findings
I. JURISDICTION
At all material times, the Respondent, a corporation, has
maintained a place of business at 2281 Port City Boulevard in
Muskegon, Michigan (the Muskegon place of business). The
PINNACLE METAL PRODUCTS CO. 809
Respondent is, and has been at all material times, engaged in
the manufacture and nonretail sale of metal stampings and re­
lated products. During the calendar year ending December 31,
1998, the Respondent, in conducting its business operations,
sold and shipped from its Muskegon place of business goods
valued in excess of $50,000 directly to points outside the State
of Michigan.
It is admitted, and I find, that, at all materials times, the Re­
spondent has been engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATI ON
It is admitted and I find that at all material times, the Union
has been a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRA CTICES
A. Facts
The Respondent is a metal stamping company located in
Muskegon, Michigan. It employs approximately 48 persons in
its pressroom. A production and maintenance unit consisting of
pressroom employees is represented by Local Lodge 670, Dis­
trict Lodge 97, International Association of Machinists and
Aerospace Workers, AFL–CIO. The Respondent and the Un­
ion have had a collective-bargaining relationship covering the
pressroom employees since sometime before 1993. The most
recent collective-bargaining agreement between the parties
expired in February 1997 and was extended by mutual agree­
ment until February 1, 1998, without modification. In late
1997, the Union notified the Respondent of its desire to meet
and discuss terms for a new collective-bargaining agreement.
The parties met several times in January 1998 and on January
31, 1998, they reached agreement on a tentative contract. In­
cluded within the tentative agreement was a revised drug and
alcohol abuse policy (revised drug policy). Paragraph B of the
revised drug policy states, in part, that “employees returning
from a leave of absence or layoff in excess of two (2) weeks
may be required to submit to urine and/or blood tests or similar
testing methods.” The union committee unanimously approved
the tentative agreement and agreed to present it to the union
membership with a recommendation for approval on February
1, 1998. Despite the recommendation, the membership rejected
the agreement and authorized a strike.
There were 46 employees in the unit on February 2 at the
start of the strike and all but 2 went out on strike. This strike
was in support of the Union’s bargaining demands and was also
allegedly caused and prolonged by the Respondent’s unfair
labor practices. These unfair labor practices were the subject of
earlier filed unfair labor practice charges in Cases 7–CA–
40537, et al., which were tried before Administrative Law
Judge Marion C. Ladwig. On April 21, 1999, Judge Ladwig
issued his decision and recommended order in The Wilkie
Company, Cases 7–CA–40537, et al., in which he concluded
that the Respondent committed numerous unfair labor practices
both before and during the strike which caused and prolonged
the strike. He, therefore, concluded that the strike was an un­
fair labor practice strike.2 The Respondent filed exceptions,
and the case is pending before the Board.
The collective-bargaining negotiations during the strike did
not lead to a new agreement. On February 14, 1998, the parties
tentatively entered into a new collective-bargaining agreement
and a strike settlement agreement when the Union accepted the
Respondent’s final offer, subject to ratification. However, the
membership failed to ratify the agreement, and the final offer
and strike settlement agreement expired by their terms. The
Union did submit the proposal for ratification again in early
March and attempted to accept the proposals by letter dated
March 5. The Respondent rejected this attempt in its letter of
March 13, 1998, in which it stated in pertinent part:
I am in receipt of your . . . letter of March 5. As you
were aware, the Proposal for Settlement and Strike Settlement
Agreement was available as a package on or before February
14, 1998. Since no acceptance was received prior to that date,
the Proposal for Settlement and Strike Settlement Agreement
expired by their terms.
As we explained to you, this package was made ex­
pressly conditional on its acceptance on or before February
14, 1998, because of the conditions present at that time. As
conditions have materially changed since that time, as we
predicted, and as it is clear that the Union did not accept the
Agreement on or before February 14, 1998, and in fact the
membership on that date voted against ratifying the proposal
and the Strike Settlement Agreement we do not have an
agreement. Further, we understand that your statement of re-
turning to work is conditioned on the premise that there is an
agreement on the expired proposal and the strike settlement
agreement and therefore is not an unconditional offer to return
to work.
The February 1, 1998 Summary of Tentative Agree­
ments and Company Final proposal which was unanimously
recommended by you and your committee, continues to re-
main available for ratification acceptance.
We, of course, would honor any unconditional offer to
return to work pursuant to applicable law and would con­
tinue to be available to work out with you any strike set­
tlement issues . . . .3
2 Specifically, Judge Ladwig found that before the strike, the Re­
spondent coercively interrogated employees about the strike sentiments
of other employees; made several threats that employees would be
discharged and suffer unspecified reprisals if they struck; told employ­
ees that other employees suffered pay cuts and job reassignments be-
cause they filed NLRB charges; cut the pay of and reassigned employee
Jeff Pugh, a union bargaining committee member, to another shift and a
more onerous job because of his union activity and because he filed
NLRB charges; and unlawfully and unilaterally denied leave and con­
tractual benefits to union officials. He also found that after the strike
commenced, John Robert (J. R.) Boos Jr., the Respondent’s manufac­
turing manager, violated the Act by destroying picket signs and other
union property, assaulting a picket by spitting in her face, confiscating
lawful picket signs, and threatening pickets with physical violence.
(GC Exh. 2.)
3 The Union filed a prior unfair labor practice charge alleging that
the Company’s refusal to honor the February 14 proposal was unlawful
810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Thereafter, the parties met only a few times, the last being in
September 1998. When the Union asked about negotiating a
strike settlement agreement, the Respondent’s counsel indicated
that it would be negotiated after they reached an agreement on a
collective-bargaining agreement. No agreement was reached
on a collective-bargaining agreement, and no new strike settle­
ment agreement was discussed or proposed. No progress at all
was made toward a new agreement during these meetings, and
there have been no meetings or requests to meet and/or bargain
since September 1998.
Taking the position that it was at impasse with the Union, the
Respondent implemented aspects of its tentative agree­
ment/final proposal, but without prior notice to the Union. This
included the return-to-work testing requirement of the revised
drug policy, a revised attendance policy, work rules, pay in-
creases, and the beginning phases of a “certification program.”
J. R. Boos, the Respondent’s production manager, testified that
all employees who crossed the picket line and returned to work
during the strike were required to undergo a drug screening test
as a condition of reinstatement. Of the nine strikers who
crossed the picket line during the strike, all but three were
tested prior to May 3, 1999, but only one was actually tested
prior to his return to work.4
On Friday, April 30, 1999, about 7 p.m., shortly after receiv­
ing Judge Ladwig’s decision, the Union ended the strike and
faxed a letter to the Respondent and its attorney making an
unconditional offer return to work. The unconditional offer to
return stated:
The members of Local Lodge #670, IAMAW, AFL–CIO,
(The Wilkie Press) offer to make an unconditional return to
work at Wilkie Metal Products, Inc. Pickets will come down
effective Saturday May 1, 1999. Members of Local Lodge
#670 will be returning to work on Monday, May 3, 1999.
On Monday, May 3, the next workday, about 21 of the 35
remaining strikers either reported to the plant to be reinstated or
called and advised the Respondent that they wanted to be rein-
stated. However, the Respondent recorded the striking em­
ployees’ names and did not immediately reinstate them, but
sent them away.5 On May 4, the Respondent sent certified
and that the parties had an agreement. This allegation, however, was
investigated and dismissed.
4 Of those nine strikers, only one, Brent Duerlo, was given a drug
test before the date of his return. He was tested on December 17, 1998,
and returned on January 4, 1999. One crossover, John Shine, was
tested on March 5, 1998 on the day of his return. Two returning strik­
ers, Christine Riley and Larry Vauters, were given drug tests several
days after their return to work. However, five of the crossovers were
not required to take drug tests until many months after their return to
work and after the Union had made its unconditional offer to return on
April 30. In this vein, Michelle Holt returned on February 17, 1998,
and was tested on May 3, 1999. Dennis Webb returned on March 18,
1998, but was not tested until May 3, 1999. Joe Raider returned on
January 8, 1999, but was not tested until May 17, 1999, and Mike
Trevino returned on January 8, 1999, and was not tested until May 17,
1999.
5 The 20 returning strikers to whom the Respondent sent the May 4
letters are Bruce Baldwin, John Barr, David Bates Jr., David Bates Sr.,
Gary Binkley, Nihl Brannam, Mary Jane Cunningham, David Doyle,
letters to only those 20 strikers who had reported on May 3 or
who had individually advised the Respondent on that date that
they wanted to return to work but made no further effort to
contact them. The Respondent did not send any reinstatement
letters to returning strikers who did not appear at the Respon­
dent’s premises on May 3 or who did not individually advise
the Respondent telephonically on that date that they desired to
return. The May 4 letter sent by the Respondent to those who
did appear on May 3 provided, in pert inent part:
Following the IAM’s termination of its strike against Wilkie
and its unconditional offer on behalf of its members to return
to work on May 3, 1999, you have applied for reinstatement.
The purpose of this letter is to outline the requirements which
must be met before you are eligible for reinstatement consid­
eration and to explain what will happen upon your return.
First, consistent with Wilkie’s past practice, you must report
to the Hackley Occupational Health Center for a Company-
paid return-to-work drug screen. Individuals who do not
submit to the test or who test positive for illegal use of con-
trolled substances are not eligible for reinstatement consid­
eration. Because it takes 24 hours to receive preliminary test
results, please report for this test no later than Thursday after-
noon. Upon receipt of our drug-screen results, we will notify
you if you are eligible for reinstatement.
Second, for those who are reinstated, the first day of work
will be Monday, May 10, 1999. That day will consist of ori­
entation training sessions at the Comfort Inn on Sherman
Avenue and U.S. 131. The meeting will begin at 7 a.m. for all
reinstated individuals and will cover quality and benefits and
other items of importance.
All individuals who applied are being sent this letter. Receipt
of this letter does not mean that you will automatically be re-
instated. The Company is reviewing its legal rights and re­
sponsibilities and it is possible that some employees will be
denied reinstatement for legitimate and appropriate reasons.
You should also know that Company is current planning to
appeal the NLRB’s recent decision.
A copy of this letter is being sent to Pete Jazdzyk at the Union
hall. [Emphasis added.]
Judge Ladwig’s order provided a 5-day grace period for
striker reinstatement. J. R. Boos testified that it was he who
would have to coordinate the reinstatement process but he was
out of the office on business until Thursday, May 6.
Thus, the May 4 letter on its face provided that as a precon­
dition of being considered for reinstatement, the returning strik­
ers had to take and pass a drug screening test some time before
Thursday (May 6) of that week. Requiring returning strikers to
take a drug test had never been discussed according to the tes-
David Eaves, Judy Johnson, Leo Krieger, Don Longmier, Vicki
McClure, Luanne McElfish, Kim Navarinii, Rock Sundquist, Al Stur­
gis, Kim Sturgis, Opaline Taylor, and Karl Tazelaar. Additionally,
returning striker Cliff Taylor credibly test ified that he called in on the
morning of May 3 and left a voice mail message for J. R. Boos that he
was ready to return to work and requested that Boos contact him but he
was never offered reinstatement.
PINNACLE METAL PRODUCTS CO. 811
timony of Union Business Representative and Chief Negotiator
Pete Jazdzyk. J. R. Boos testified that the Respondent’s chief
negotiator and attorney, Robert A. Dubault, explicitly stated to
Jazdzyk and union business representative, David Caughy,
during the February 11 meeting that it would apply to returning
strikers. Neither Caughy nor Dubault testified.
The May 4 letter also indicated that after employees took the
drug screening test and the Respondent received the results, the
Respondent would advise them if they were eligible to return.
The Respondent admittedly did not follow this latter step and
did not advise the former strikers who had taken and passed the
test that they were eligible to return.
Jazdzyk first learned of the May 4 letter and the drug testing
requirement from his members on or about May 5. By letter to
the Respondent dated May 6, 1999, and in a telephone conver­
sation with the Respondent’s counsel, Jazdzyk protested what
he considered to be the unilateral implementation of the drug
testing requirement for returning strikers. Jazdzyk did advise
some of the striking employees to take the test but only under
protest, and he continued to object to its implementation.
Attorney Dubault did not testify as to the May 6 conversa­
tion and, thus, did not contradict Jazdzyk. The Respondent
attempted contradiction in the form of J. R. Boos’ testimony
that he overheard a telephone conversation between Dubault
and another person in an office in the stamping plant. He
claimed that he was able to identify the person on the other end
of the line as being Jazdzyk despite the fact that the telephone
receiver was at most 2 inches from Dubault’s ear (not a speak­
erphone), and that the loud background of a stamping plant in
full operation outside Boos’ office did not interfere with his
hearing because the phone volume was increased to compen­
sate for background noise. Dubault did not testify in corrobora­
tion. I find that there was insufficient convincing foundation
for J. R. Boos’ uncorroborated testimony that Dubault told
Jazdzyk that returning strikers could take the drug test under
protest but they could return to work and take the test “after the
fact” because it was “not important.” Jazdzyk, whom I credit,
denied having been so informed.
Robert Sikkel, the Respondent’s counsel, faxed Jazdzyk a
reply on May 7 in which he asserted that the implementation of
this drug screening requirement on returning strikers was ap­
propriate. He stated, in pertinent part:
You will recall that a revised drug testing policy—which in­
cluded the return to work testing—was negotiated and tenta­
tively agreed upon prior to February 1, 1998. The policy
states in part, “any employee who becomes injured on the job
and employees returning from leave of absence or layoff in
excess of two weeks may be required to submit to urine and
or blood tests or similar drug testing methods.”
Inasmuch as the parties have been deadlocked in their posi­
tions for a substantial period of time and inasmuch as there
have been no meetings or discussions between the parties for
more than seven (7) months, it is clear that we have been at
impasse. Therefore, the Company has lawfully implemented
the tentatively agreed upon revised policy. The policy is and
has been applicable to all employees, including cross overs
and replacements. Therefore, the Company’s reasonable re-
quest is neither discriminatory nor retaliatory.
Sikkel’s letter is silent as to the alleged reassurance of co­
counsel Dubault to Jazdzyk on May 6. It does nothing to mod­
ify the clear mandate of the Respondent’s prior May 4 letter
setting forth a successful passing of a drug test as a precondi­
tion of reinstatement consideration, and that the employee
would be so informed. The clear implication of that May 4
letter is that the employee would be notified of the test results
and, accordingly, his or her prospective reinstatement eligibil­
ity. The May 4 letter asserts that the drug testing requirement
of returning strikers was consistent with the Respondent’s past
practice which had been applied to striker crossovers.
Boos testified that under the Respondent’s policy and prac­
tice, a returning employee would not have been obliged to pass
the drug test prior to reinstatement. He testified that failure of
the test ought not to involve a rejection of reemployment but
would rather oblige rehabilitation after reinstatement. He testi­
fied that any striker who might have failed the drug test ought
have been returned to work and provided with counseling as
had been provided for returning employees absent for other
reasons under the drug testing program. Neither he nor any
other witness explained the inherent inconsistency in the policy
as had purportedly been implemented and the clear statement of
the Respondent’s letter which set forth the passing of a drug
test as a precondition not merely for reinstatement, but a pre-
condition for consideration for reinstatement. Even had the
Respondent’s intentions to interpret the testing requirement as
applicable to returning strikers been stated to Jazdzyk and
Caughy, the purported letter of reinstatement did not encom­
pass that policy, but rather was a deviation from it which had
never been discussed with the Union even under J. R. Boos’
version of the facts.
In view of the Respondent’s failure to explain, modify, or re­
scind the reinstatement-consideration drug-test precondition of
its May 4 letter in subsequent written communications to the
Union or the strikers, I find Jazdzyk’s testimony more credible
on this issue. If Dubault had explained the Respondent’s drug
testing policy to Jazdzyk, as Boos claimed in his testimony that
he did so, Jazdzyk most certainly would have pointed out the
inconsistency with the May 4 letter and demanded a clarifica­
tion letter. Further, there is no evidence that Jazdzyk gave such
explanation to any returning striker but, instead, told all strikers
to take the test “under protest,” in compliance with the May 4
letter, and report to work. He did not tell them to report to
work and thereafter to submit to the test. I find that there never
was any such oral explanation to Jazdzyk. The Respondent
unconvincingly argues that J. R. Boos must be credited because
several employees did in fact report on May 10 without having
been tested. However, the vast preponderance did not do so,
and their last official notification direct from the Respondent
was the May 4 letter.
Boos testified that as of May 1999, the Respondent em­
ployed about 40 or more employees and was in need of at least
10 or 15 more employees. He testified that 20 returning strik­
ers would all have “fitted right in” because of their prior train­
ing and experience.
812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On May 10, only five of the former strikers, including David
Bates Jr., Bruce Baldwin, Al Sturgis, Nihl Brannam, and John
Barr reported for the orientation at 7 a.m. with Jazdzyk.6 The
Respondent immediately refused to reinstate three of the five
returning strikers. The Respondent’s counsel and J. R. Boos
conferred with Jazdzyk and advised him that Bruce Baldwin,
David Bates Jr., and Al Sturgis would not be allowed to stay
because the Respondent wanted to investigate their alleged
picket line misconduct. Jazdzyk then informed these employ­
ees that they had to leave. Jazdzyk testified that before he was
also required to leave, he told the Respondent’s counsel, Du­
bault, that former striker Don Longmier was unable to report
that day due to a family emergency but he wanted to return.
Jazdzyk testified that he also advised Dubault that striker Con­
nie Ellis wanted to return but that he was unable to contact her.
J. R. Boos testified that Jazdzyk made no reference to Long­
mier and merely said that he had been able to contact Ellis.7
When he initially testified as an adverse witness for the Gen­
eral Counsel, J. R. Boos claimed that on the morning of May
10, Jazdzyk told Boos and Dubault that those five employees,
with the exception of Ellis, were the total number of returning
employees. As a witness for the Respondent, Boos testified
somewhat differently, i.e., in response to their inquiry as to
whether those five were “everybody who is coming,” Jazdzyk
answered, “yes,” and again “yes, this is everyone.” Jazdzyk
testified that he responded that those five returning strikers
were “all that are here today.” A certain ambiguity attaches to
all versions. Neither of Boos’ versions constitutes a clear
statement by Jazdzyk of relinquishment of a reinstatement re-
quest by all other strikers as distinguished from a recognition of
non-appearance to what may or may not have been a valid offer
of reinstatement. However, if the Union’s reinstatement re-
quest is to be construed as a request for reinstatement only for
strikers who actually appeared for work, then even Jazdzyk’s
version would have particular significance.
With respect to Bates Jr., Baldwin, and Sturgis, Jazdzyk was
also told that the Respondent would interview the three
individuals to “get their side of the story.” Jazdzyk then stated
that he intended to sit in on the training meeting. Dubault
informed him that it would not allow him to do so, inasmuch as
the meeting was solely for employee training and he saw no
reason for him to be there. This conversation took place in a
separate room—away from and outside the hearing of the four
individuals who had reported for work. Jazdzyk then walked
away and met with the four returning strikers.
Nihl Brannam, a returning striker and a union steward who
had appeared at the orientation on May 10 at the scheduled
6 Barr arrived at 7:30 a.m.
7 Of the five returning strikers who reported, only one—Brannam—
had taken the drug test before May 10. Baldwin testified that he re-
fused to do so because Jazdzyk had told him it was a violation of Judge
Ladwig’s recommended order. Bates Jr. testified that he recalled no
conversation with Jazdzyk prior to May 10 regarding the drug test.
Sturgis claimed that he had not personally received the May 4 recall
letter, which had been sent in error to his mother’s address. She is an
employee. Barr did not testify. There is no record of a blood test for
Barr. Longmier, who did not report on May 10, did take a blood test
prior to that date. Ellis did not.
time, was made to wait while the Respondent’s counsel met
with Jazdzyk to tell him that Al Sturgis, David Bates Jr., and
Bruce Baldwin would not be allowed to stay. He told Jazdzyk
that he did not want to go into orientation without Jazdzyk who
had promised to accompany him.
A short time later, Jazdzyk returned with Brannam and in-
formed Dubault and Boos that Jazdzyk would not leave and
that he intended to sit in on the meeting. Hotel management
was notified of Jazdzyk’s unwelcome presence, but Jazdzyk
remained. A few minutes later, Barr reported and approxi­
mately 30 minutes after that, a state police officer arrived and
asked Jazdzyk to leave. He complied with this request. Only
Brannam and Barr were present at this time. They had to wait
for the Respondent to call the police to have Jazdzyk ejected
from the meeting. Further, the orientation was delayed because
the Respondent had not arrived with the orientation materials
and Boos had to telephone Controller James Johnson to have
him bring the orientation materials to the meeting. The start of
the orientation was delayed for several hours.
Brannam testified that about the time the orientation was to
finally commence, he became extremely upset and told Boos
that the way the Respondent was treating returning strikers was
a “bunch of crap” and “who was to say” how they would be
treated upon reinstatement, to which Boos responded, “[W]ell I
can get you for insubordination.” Brannam testified that he
then “really got upset” and told Boos that he could take his job
and “shove it up his ass.” According to Brannam, Boos
“softly” asked him if that meant he was quitting, to which point
Brannam repeated his statement. Brannam testified that Boos
then made a kissing gesture to him which further infuriated
Brannam to tell Boos, “and I also got something you can kiss.”
Because of Brannam’s evasiveness and demeanor, I credit Boos
that at this point Brannam grabbed his own crotch. Brannam
then walked out the door. Boos’ account is very much the same
and does not explicitly contradict Brannam as to details testi­
fied to by Brannam, but to which Boos was silent.
Thereafter, the Respondent sent Brannam a quit slip and
asked that he sign and return it, which he never did. Boos
started the orientation with Barr. After about 10 minutes, Barr
asked for a cigarette break. He left and never returned.
Former striker Don Longmier telephoned the Respondent on
May 11 and confirmed that he was ready to return to work but
had not been able to do so because a family emergency required
him to be out of town on May 10. James Johnson, the control­
ler, said that he would have Boos call Longmier. Boos never
called him. The Respondent did not offer Longmier reinstate­
ment until some time later.8
About a week later, the Respondent terminated Longmier by
letter dated May 19 for not reporting for work on May 10. On
May 19, 1999, the Respondent sent letters to strikers who had
reported or called on May 3 but who had not reported on May
10; these letters terminated their employment and advised them
that they were not eligible for reinstatement. These termination
8 Johnson did not effectively contradict Longmier, whom I credit as
the more detailed and convincing witness.
PINNACLE METAL PRODUCTS CO. 813
letters were sent to David Bates Sr.,9 Judy Johnson, Kim Stur­
gis, Karl Tazelaar, Opaline Taylor, Mary Jane Cunningham,
and LuAnne McElfish. In addition, the Respondent sent John
Barr a letter on May 19 terminating him for “walking off of the
job.” The General Counsel takes the position that the Respon­
dent had never really made them unconditional offers of rein-
statement but, rather, simply advised them of the steps that they
were required to take in order for the Respondent to consider
them eligible for reinstatement.
During the strike, the Respondent had received reports that
Bates, Sturgis, and Baldwin, among others, had engaged in
misconduct which it believed might be sufficiently serious as to
justify nonreinstatement. The individuals who made such alle­
gations were Todd Pascal, a replacement employee hired during
the strike, and Paul Martin, a driver hired to make deliveries for
the Respondent during the strike. Pascal alleged that Bates Jr.
and Sturgis had followed him and damaged his truck. Boos
testified that shortly after having read these reports during the
strike, he informally interviewed Martin and Pascal whose
complaints were among 40 reports of picket line misconduct
complaints. No further investigation was pursued until May
1999, after the reinstatement request.
On May 12, 1999, Boos and Attorney Dubault met sepa­
rately with Bates Jr., Sturgis, and Baldwin in Dubault’s office.
Jazdzyk was allowed to sit in on these meetings. During the
meetings, each employee was informed of the allegations
against him, was shown copies of relevant documents, and was
given the opportunity to respond. All three denied wrongdoing.
They were told that the Respondent needed to conduct some
followup investigation and that when the investigation was
complete, Jazdzyk would be notified of their return status and
that he would then contact them. Boos testified that he needed
time to investigate the misconduct allegations but that he had
planned to start his own personal vacation on Monday, May 17,
and he decided to follow his plans. Thus, he was absent for 7
days until Monday, May 24, which absence delayed the inves­
tigation. Although he testified that during and after the strike,
he had consulted Dubault and Johnson about the strike miscon­
duct complaints, Boos did not adequately explain why his ab­
sence necessarily caused the delay. Boos’ testimony as to just
what the post-May 12 interview investigation consisted of is
sketchy and obscure.10 In any event, Boos, upon his return on
May 24, in consultation with Dubault, decided that there was
insufficient evidence upon which to deny reinstatement to the
three accused returning strikers. One complainant, the driver,
was not employed by the Respondent and was now unavailable
according to Boos. However, Boos must have known that well
before the investigation.
The Respondent waited until the morning of May 26 when
attorney Dubault telephoned Jazdzyk to announce that the Re­
spondent had decided to reinstate Baldwin, Sturgis, and Bates
and that each should report for the training sessions at 4:30 p.m.
9 David Bates Sr., like his son, David Bates Jr., was an employee of
the Respondent and a returning unfair labor practice striker.
10 Boos testified that in his absence someone in the shipping depart­
ment had been collecting some undescribed shipping documents relat­
ing to Baldwin.
on Thursday, May 27 (just before the start of Memorial Day
weekend). Dubault told Jazdzyk that they would have to sub­
mit to a drug screen test either before or immediately after their
return and that they would thereafter be working on Thursday,
May 27, and Friday, May 28, and very likely over the week-
end.11 Jazdzyk objected to recalling these employees so late in
the day just before the Memorial Day weekend, but to no avail.
Jazdzyk mentioned during this conversation that Connie Ellis
and Don Longmier wanted to return. The Respondent’s coun­
sel said that Ellis could return on May 27 at 4:30 p.m. but
Longmier could not because he had been terminated. Jazdzyk
related the offer to David Bates Jr., Bruce Baldwin, Al Sturgis,
and Connie Ellis by telephone on May 26 and May 27.
About May 26, 1999, Connie Ellis telephoned the Respon­
dent and asked Johnson if she would be allowed to return, and
she was told she could return on May 27 at 4:30 p.m. after she
had completed a drug test. She took the drug screening test.
She testified that she got “cold feet” and did not report.12
Except where otherwise noted, Bates Jr. and J. R. Boos testi­
fied as to the events of May 27 and June 2. I found Boos’s
demeanor more convincing than that of Bates. Boos was cor­
roborated as to his movements in the plant and duration of time
spent with Bates by clerical employee Terry Long. She was a
spontaneous and convincing witness. Furthermore, Bates’ tes­
timony contained significant inconsistencies. Accordingly, I
find that the facts relating to Bates’ attempted reinstatement are
as follows:
When Bates Jr. reported on Thursday, May 27, 1999, he was
asked by J. R. Boos if he had completed his drug test. Since he
had not yet done so, he was told to go take the drug test at the
designated clinic and if it did not take too long, to report back
to the plant. Bates Jr. did take the test but he did not return that
day. He did not report on Friday (May 28) or Tuesday (June 1).
Monday, May 31, 1999, was Memorial Day and the plant was
closed that entire weekend in observance of the holiday. Bates
Jr. did call in on June 1 to see about returning to work. He was
told to report on Wednesday, June 2, at 1 p.m. Bates reported
on June 2. He was given a packet of papers by a clerical em­
ployee, including a State and Federal form W-4, a new form I-
9. Included within the packet were also a covenant not to com­
pete and an “at will” employment agreement. Boos testified
that the “at will” agreement which had been drafted by the Re­
spondent’s legal counsel was intended for new replacement
employees hired during the strike, and was not an appropriate
document to have been presented to Bates Jr., a returning
striker employee.13 Boos entered the conference room and
reviewed certain information about the Company’s QS and ISO
11 This was the first notice to the Union or the employees that the test
could be taken after reporting to the plant. Nothing was said that the
consequence of a test failure would be rehabilitation rather than non-
reinstatement as the May 4 letter stated.
12 I credit Ellis as to any discrepancy between her testimony and that
of Johnson who was an evasive, uncertain, and unconvincing witness,
and who failed to effectively and explicitly contradict Ellis.
13 At first, Bates Jr. testified that he had never before been required
to sign a covenant not to compete. He retracted his testimony when
confronted with the same type of document he executed in 1997 when
he was hired.
814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9000 quality control program. Throughout the meeting, Boos
repeatedly asked Bates Jr. if he had any questions and he only
had one: What job would he be doing once he was placed on
the floor?
Bates testified that he had been transferred from a press op­
erator position which he had held from his hiring in June 1997 to
the posit ion of die setter trainee in October or November 1997
which he held until about 1 month before the February 2 strike.
He testified that his training period terminated at that time and
he became a full-fledged die setter in early January by virtue of
the fact that he began setting dies without the attendance of the
shift supervisor, Mitch Piasecki. He admitted that he received
no “release papers” (certification documentation) designating
him as a die setter and that he was never orally informed that his
training had terminated. There is no documentation or any other
evidence that his training had ended.
Boos testified that when Bates Jr. questioned Boos as to his
reinstatement position, he was told that the die setter position
had been abolished, that press operators now set their own press
jobs, and that Bates would be assigned to a press operator posi­
tion. Boos testified that Bates Jr. had never finished his train­
ing as a die setter. Bates testified that this is what Boos stated
as the reason Bates was to be reinstated as a press operator. At
no time did Bates ask about any of the forms. Boos then asked
Bates Jr. to review the voluminous QS and ISO 9000 binders
and left the room. I credit Boos that he did not order Bates Jr.
to memorize those forms. After Boos left the room, Bates Jr.
walked out. He neither returned nor called. Approximately 10
days later, J. R. Boos sent Bates Jr. a letter attempting to clarify
the various forms Bates Jr. had been given and inviting Bates
Jr. to contact the Respondent about coming back to work.
The letter disclaimed the need for Bates Jr. to have signed
any forms other than the W-2 form. The letter also asserted,
inter alia, that he had never completed his die setting training,
had not been released to set dies, would be returned to the posi­
tion of second shift press operator position which he held prior
to the strike, and would be provided with the opportunity to
continue to train as a die setter. There is no evidence that the
die setting position had actually been abolished as Boos testi­
fied that he told Bates Jr. The Respondent’s June 14 letter sug­
gests that it had not. Accordingly, on this point, I credit Bates
that Boos told him that the reason he would not be assigned to a
die setting position was that he had not formally finished his
training.
The Respondent’s June 14 letter to Bates Jr. concluded by
soliciting his return to work upon contact with J. R. Boos no
later than June 18, 1999. Bates Jr. testified that he felt that it
was “pointless” to reply to the letter because he felt that he had
been “jerked around.”
The Respondent sent Al Sturgis, Bruce Baldwin, and Connie
Ellis letters on June 2, 1999, advising each of them that they
were being terminated for failing to report for work for 3 con­
secutive days. The 3 days apparently included May 27, 28, and
June 1, inasmuch as the plant did not operate Saturday through
Monday. Al Sturgis and Bruce Baldwin never received their
discharge letters.14
Longmier was eventually recalled to work and reinstated on
October 11, 1999. The Respondent characterizes the delay in
his reinstatement as the result of an “administrative oversight.”
There was no testimony sufficient to explain the “administra­
tive oversight.” Longmier had taken his drug test on May 6,
1999. There is no explanation why the Respondent did not act
upon Longmier’s telephone communication to controller John-
son that he was ready and willing to return to work after a fam­
ily medical emergency had subsided.
B. Analysis
In part, Section 7 of the National Labor Relations Act (the
Act) gives employees the right to “self-organization, to form,
join, or assist labor organizations, and to bargain collectively
through representatives of their own choosing.” 29 U.S.C. §
157 (1994). Participating in a strike is protected activity under
Section 7. NLRB v. Fleetwood Trailer Co., 389 U.S. 375
(1967). Section 8(a)(3) of the Act prohibits discrimination “in
regard to hire or tenure of employment or any term or condition
of employment to encourage or discourage membership in any
labor organization.” 29 U.S.C. § 158(a)(3) (1994). An em­
ployer who fails to reinstate returning strikers without a legiti­
mate business justification violates Section 8(a)(3). Fleetwood
Trailer Co., supra. Legitimate business justifications for delay­
ing or denying reinstatement include the fact that economic
strikers have been replaced, NLRB v. MacKay Radio & Tele­
graph Co., 304 U.S. 333 (1938), and that the returning
striker(s) have engaged in serious picket line or strike-related
misconduct. Clear Pine Mouldings, 268 NLRB 1044 (1984),
enfd. 632 F.2d 721 (9th Cir. 1980).
It was clear in this proceeding that some, if not all, strikers
had been replaced. Whether or not their replacements were
hired permanently was not litigated. Only three of the strikers
were accused of misconduct to have been deemed by the Re­
spondent sufficient to delay their reinstatement. Both economic
strikers not permanently replaced and unfair labor practice
strikers retain their status as employees under the Act. NLRB v.
MacKay Radio & Telegraph Co., supra at 345.
Judge Ladwig concluded that the strike, which began on
February 2, 1998, was an unfair labor practice strike in that it
was, in part, caused by and prolonged by the Respondent’s
unfair labor practices. The rights of unfair labor practice strik­
ers are well settled in the law. Upon their unconditional offer
to return to work, an employer’s obligation is to immediately
offer them reinstatement to their former positions, even if that
requires the discharging of permanent replacements. NLRB v.
MacKay Radio & Telegraph Co., supra at 347.
Generally, an employer is entitled to a grace period of up to
5 days to reinstate strikers to accommodate its administrative
14 Bruce Baldwin credibly testified that he never received the letter.
The letters were sent certified mail, and the Respondent had no return
receipt indicating that Baldwin had, in fact, received it. Sturgis’ letter
was sent to his mother’s address even though it was not his address at
the time and he had given the Respondent a later address. While he
was not living at this later address, he was still receiving his mail at the
address at the time.
PINNACLE METAL PRODUCTS CO. 815
preparations. Drug Package Co., 228 NLRB 108, 113 (1997),
modified 570 F.2d 1340 (8th Cir. 1978), on remand 241 NLRB
330 (1979). However, following an unconditional return to
work offer, there will be no such grace period permitted where
the employer “unduly ignores, rejects, or unduly delays making
a valid reinstatement offer.” La Corte ECM, Inc., 322 NLRB
137 fn. 2, 140–141 (1996); Dorsey Trailers, Inc., 327 NLRB
835, 856–857 (1999); Beaird Industries , 311 NLRB 768, 770–
771 (1993); Newport News Shipbuilding, 236 NLRB 1499,
1637, 1638 (1978), enfd. 602 F.2d 73 (4th Cir. 1979). The
failure to reinstate within the grace period is not excused by
administrative difficulties, and reinstatement of the returning
strikers must be effectuated as a group and not on a “piece-
meal” basis. Dorsey Trailers, Inc., supra. See also Gitano
Distribution Center, 294 NLRB 695 fn. 3 (1989).
The first issue to resolve is whether the Union’s offer to re-
turn to work, faxed on April 30, was an unconditional offer on
behalf of all 35 remaining strikers, or whether it was an offer
only on behalf of those specific 21 strikers who actually re-
ported for work at the plant on Monday, May 3, or who other-
wise communicated with the Respondent by telephone on that
date. The union offer stated:
The members of Local Lodge #670, IAMAW, AFL–CIO,
(The Wilkie Press) offer to make an unconditional return to
work at Wilkie Metal Products, Inc. Pickets will come down
effective Saturday May 1, 1999. Members of Local Lodge
#670 will be returning to work on Monday, May 3, 1999.
The Respondent argues that the offer was clear on its face as
one limited to workers who would be returning to work, i.e.,
appearing at the plant. It argues in the brief that this is the nec­
essary interpretation because “[t]he Union did not state that
‘all’ members would be returning that day, nor did it indicate
that ‘all’ members were ready, willing and able to return upon
notice from the Company [but] [i]nstead, the Union used very
specific terms which clearly indicate that only those strikers
who were interested in returning would personally report for
work that day.”
In practice, the Respondent, however, recognized that not all
strikers who desired a return to work personally appeared at the
plant by virtue of its acceptance of return-to-work offers by
telephonic communication of some strikers on the same date.
That fact, alone, should have raised some doubt as to the sup-
posed limitation of the offer to actual personal appearances at
the plant. Furthermore, although the offer did not state in the
first sentence “all” members, it also did not limit the offer to
some members. “The members” is closer to encompassing the
meaning of “all members” than “some members.” Further-
more, although the offer did not state in the last sentence that
“some” members will be reporting, it also did not state that
only those members desiring reinstatement would appear at the
plant. Certainly, it was silent as to telephone reporting.
The Respondent argues in its briefs as follows:
The Board has previously held that where a union makes an
offer that returning strikers will report for work, only those
employees who actually report are entitled to reinstatement.
See Mississippi Steel Corp., 169 NLRB 647, 662 (1968), en-
forced 405 F.2d 1373 (D.C. Cir. 1968) (“[T]here is no basis
for finding . . . that the Union’s letter [stating that strikers will
report on a given date] was a proper blanket application for all
strikers without further need for their individual appearance or
application for work . . . .”) (emphasis added); Elmira Ma-
chine & Specialty Works, Inc., 148 NLRB 1695, 1696 (1964)
(union’s letter seeking reinstatement for all employees on an
attached list was sufficiently clear as to the employees who
were eligible for reinstatement); Brown & Root, Inc., 99
NLRB 1031, 1038-41 (1952); enforced in part, 203 F.2d 139
(8th Cir. 1953) (union which requested reinstatement for em­
ployees who participated in strike or who presented them-
selves to the employer made incomplete blanket application
on behalf of all employees).
The Brown & Root, Inc. decision cited and relied upon in
Mississippi Steel, however, was premised upon unequivocal
language which specifically excluded certain employees and
alternatively demanded reinstatement for “those of them who
present themselves.” The Board concluded “that the strikers
were to make individual applications for reinstatement,” supra
at 1040. In Elmira Machine, the other case cited by Mississippi
Steel Corp., the employer made an offer for specific-named
individuals. The actual offer of reinstatement was not quoted in
the Mississippi Steel Corp. decision, but it was characterized by
the administrative law judge as a letter which stated that “the
bulk [i.e., not all] of the strikers immediately available would
return to work unconditionally on August 8 as they were in­
structed.” The judge, affirmed by the Board, as cited by the
Respondent, concluded that the letter was not a “proper blanket
application.” However, the letter had some explicit limiting
language, i.e., “the bulk of the strikers.” In this case, the first
sentence of the Union’s letter has no similar explicit limiting
modification. A similar factual issue was addressed in Champ
Corp., 291 NLRB 803, 884–885 (1988). The offer in that case
was on behalf of “the employees of Champ Corporation cur­
rently on strike . . . to return to their former positions.” How-
ever, it went on to state “The striking employees will be report­
ing at the start of the scheduled shift on Monday, April 21,
1980.” The letter invited questions. The administrative law
judge, who was affirmed by the Board, evaluated the Missis­
sippi Steel Corp., Brown & Root, Inc., and Elmira Machine
decisions. She concluded that the employer raised a valid ques­
tion about the status of employees who failed to appear on
April 21. She further concluded that ensuing correspondence
between the employer and union revealed employer confusion
about the coverage of the offer and that the employer had asked
questions about it. However, she also found that at a certain
point, the employer became obliged to ask further clarification.
She cited and quoted from the Board’s holding in Home Insula­
tion Service, 255 NLRB 311, 312 (1981):
[W]here any such ambiguity remains unclarified due to Re­
spondent’s decision to ignore the offers and not seek clarifica­
tion, Respondent may not be heard to complain, if such uncer­
tainty is resolved against its interest. Haddon Home Food
Products, Inc., and Flavor Delight, Inc., 242 NLRB 1057 fn.
6 (1979).
The judge distinguished Mississippi Steel Corp., supra, on the
grounds that the union clarified its offer as requested and the
816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employer acted on the clarification but that it must suffer the
consequences of not seeking further clarification.
The issue was revisited in Domsey Trading Corp., 310
NLRB 777 fn. 3 (1993), where the Board again evaluated a
similar Mississippi Steel Corp. defense. The Board noted that
the failure of certain strikers to appear pursuant to a similar
offer did raise a valid question about their status, citing Champ
Corp., supra. The Board went on to state:
However, where a request for reinstatement appears ambigu­
ous, the employer bears the burden of requesting clarification.
Here the Respondent failed to do so.
The Board went on to cite Home Insulation Service, supra. In
Domsey, the administrative law judge found that the union
offered a return to work “on behalf of all employees on strike,”
but went on to state that reinstatement workers would report to
the facility on August 13. As in this case, some did not report.
Those who did report were subjected to unlawful reinstatement
conditions, i.e., to execution of unlawful applications for rein-
statement and INS forms. The Board affirmed the judge’s find­
ing that the respondent therein did not make valid offers of
reinstatement, “collective or otherwise,” to any employees, i.e.,
either to those who reported or to those who did not. It stated
that because the offers of August 13 to reporting employees
were invalid, it could not “appropriately inquire” into the rea­
sons for certain strikers to refuse to work on that date.
I conclude that the Union made an unconditional offer of a
return to work of its striking employees, unlimited in coverage
by the first sentence of its offer. I find that, at most, the refer­
ence to reporting in person on May 3 rendered an ambiguity to
the offer for which the Respondent was obliged to seek clarifi­
cation. I find that it failed to seek such clarification before
rendering its purported offers of reinstatement which were lim­
ited to those who appeared at or telephoned the plant on May 3.
The Respondent sought no clarification of any kind until May
10 when it purportedly asked Jazdzyk whether any more strik­
ers would appear on that date; under either version of what was
stated, Jazdzyk did not waive the reinstatement rights of non-
appearing strikers.15
Further, I find that for the following reasons, the Respondent
failed to make a valid offer of reinstatement to those strikers
who appeared at or called the plant on May 3 and, thus, strikers
who failed to appear either on May 3 or May 10 did not waive
reinstatement rights. Domsey Trading Corp., supra. An offer
or reinstatement must be “specific, unequivocal and uncondi­
tional,” and to the same job and starting time, and not merely
an invitation to talk about a job. Page Litho, Inc., 325 NLRB
338, 339 (1998); Deleet Merchandising, 324 NLRB 1073
(1992); Sunol Valley Golf Club, 310 NLRB 357, 375–376
(1993), enfd. 48 F.3d 414 (9th Cir. 1995); Duroyd Mfg., 285
NLRB 1, 3 (1987); W. C. McQuaide, Inc., 239 NLRB 671
(1978), enfd. 617 F.2d 349 (3d Cir. 1980).
15 If necessary, I would credit Jazdzyk’s testimony on this point as
being the more convincing and assertive in demeanor and the more
probable. It is extremely improbable that he would have so abruptly
cut off the reinstatement rights without further communication with
non-appearing strikers.
The strikers who appeared at the plant and who telephoned
the plant on May 3 were not offered reinstatement. The only
strikers to have been tendered some form of reinstatement offer
by May 4 were those to whom the Respondent sent the May 4
letter. That letter did not constitute a “specific, unequivocal,
and unconditional” offer of reinstatement to the employees’
same jobs and shifts. Instead, it was an offer of consideration
of employment, and which offer was itself preconditioned upon
the successful passing of a drug test. That precondition had not
been encompassed within the revised drug test policy and prac­
tice which the Respondent argued had been implemented after
bargaining impasse. Thus, even assuming that the drug test
was applicable to returning strikers, i.e., testing and rehabilita­
tion, the precondition of a successful passing of the test for
reinstatement “consideration” was not. Furthermore, strikers
who successfully passed the drug test were informed by the
May 4 letter that they had to await notification of the test re­
sults before they were even notified of eligibility for reinstate­
ment consideration.
An employer may not condition reinstatement by unilaterally
insisting, as the Respondent has done in this case, that returning
strikers take and pass a drug test, or impose other conditions on
their return. See, e.g., Marlene Industries Corp. v. NLRB, 255
NLRB 1446 (1981), enf. denied 712 F.2d 1011, 1018 (6th Cir.
1983) (offer of reinstatement not valid when returning strikers
were treated as new hires); NLRB v. Transport Service Co., 302
NLRB 22 (1991) enf. in part 973 F.2d 562, 572 (7th Cir. 1992);
Domsey Trading Corp., supra at 777 fn. 3, 794–795 (a valid
offer of reinstatement should consist of more than an an­
nouncement and an invitation to apply); CDR Mfg., 324 NLRB
786, 791–792 (1997) (requiring returning strikers to fill out
absence reports for being on strike, and then terminating them
for not doing so violated the Act); American Cyanamid Co. v.
NLRB, 235 NLRB 1316 (1978), enf. denied 592 F.2d 356 (7th
Cir. 1979) (employer may not insist that union sign a strike
settlement as a condition of ulp strikers being returned to
work); Scalera Bus Service, 210 NLRB 63, 63–64 (1974);
Sunol Valley Golf Club, supra.
I find that as in Domsey Trading Corporation, supra, the Re­
spondent failed to make a valid offer of reinstatement to the
strikers who did report on May 3 and, accordingly, it is not
appropriate to inquire into the reasons why strikers did not
appear or refused to work either on May 3 or May 10, including
Connie Ellis, John Barr, and Mike Brannam. I further find that
the Respondent failed to make any nonselective, non-
piecemeal, valid reinstatement offer to 32 strikers in response
to the Union’s reinstatement request within the 5-day grace
period commencing the first business day after receipt of the
Union’s after-hours faxed notice of April 30, i.e., May 3, or, for
that matter, any time thereafter.16
I find that by the foregoing conduct, including discharging
employees who failed to respond or refused to work in the ab­
sence of a valid offer of reinstatement, the Respondent violated
Section 8(a)(1) and (3) of the Act. I find that by delaying the
16 Those strikers suspected of misconduct will be evaluated sepa­
rately.
PINNACLE METAL PRODUCTS CO. 817
reinstatement of Longmier, the Respondent violated Section
8(a)(1) and (3) of the Act.
With respect to the allegations concerning the delay and non-
reinstatement of suspected picket line misconduct perpetrators,
the Respondent argues in its brief:
The Union and General Counsel next complain that Pin­
nacle violated the Act by refusing to reinstate returning strik­
ers David Bates Jr., Al Sturgis and Bruce Baldwin from May
10, to June 2, 1999 . . . . This allegation is also unsupported
by the fact and the law. It is well-settled that upon receiving a
striking employee’s unconditional offer to return to work, the
employer may refuse such reinstatement if it has a good faith
belief that the individual engaged in strike-related misconduct
and the employee, in fact, has engaged in such misconduct.
See, e.g., Mohawk Liqueur Co. [300 NLRB 1075 (1990),
enfd. 951 F.2d 1308 (D.C. Cir. 1991)]; Clear Pine Mouldings
[258 NLRB 1044 (1984), enfd. 632 F.2d 721 (9th Cir. 1980)].
Here, based on reports from various individuals, Pinnacle had
such a belief, and when Bates, Sturgis, and Baldwin offered to
return to work, the Company sought to determine whether
there was support for these allegations. This included inter-
views with the persons who made the allegations initially, a
review of relevant documents, and interviews with the return­
ing strikers themselves. Mr. Jazdyzyk [sic] was informed at
the May 10 meeting that the Company was challenging rein-
statement of those three individuals based on its belief that
they engaged in strike-related misconduct. He was also in-
formed that the Company would further investigate the
underlying allegations; interview the three former strikers;
and based on its findings, make a determination as to their
return. The Company specifically informed Jazdyzyk [sic]
that the three individuals might be returned to work following
the investigation. Jazdyzyk [sic] also accompanied the three
returning strikers during the Company’s interviews, which
were conducted on May 11, 1999. Due to vacations and
unavailability of some witnesses, the Company’s in­
vestigation took about two (2) weeks to complete. On May
26, 1999, Pinnacle informed Mr. Jazdyzyk [sic] of its decision
to reinstate Bates, Baldwin and Sturgis. Of those three
individuals, only Bates reported as directed, and neither
Baldwin or Sturgis has contacted the Company since.
Initially, I find that the three strikers had never been offered
a “specific, unequivocal and unconditional” reinstatement, even
after the so-called “investigation” of their suspected strike mis­
conduct was aborted. The condition of a successful passing of
the drug test as an employment condition, as so specified in the
May 4 letter and orally conveyed through Jazdzyk, was, at best,
deferred for these three strikers to a time immediately after a
report for orientation. The orientation for the strikers was not
worktime as no strikers who appeared was actually paid for
time spent at orientation on May 27, which is contrary to the
Respondent’s own policy.
Further, I find that the reinstatement that was proffered was
unduly delayed. The “investigation” reeks of contrivance and
petty harassment. The Respondent had not engaged in any
serious investigation prior to the request for reinstatement. A
prime witness had no longer been employed. Boos’ testimony
as to the actual investigation was so generalized and conclu­
sionary as to be meaningfulness. Boos was well aware of his
vacation long before initiating an investigation that he knew
required his presence to be of any practical value. The timing of
the holiday eve reporting date is highly suspicious. Jazdzyk,
who protested, was told by the Respondent’s counsel that the
plant would probably operate through the weekend. It did not.
Boos certainly must have been aware of the Respondent’s plan
not to operate that weekend after a delay caused by a meaning-
less investigation. The Respondent, however, persisted that the
three strikers appear at 4:30 p.m. on Thursday afternoon. The
only striker who did report on May 21—Bates Jr.—was pre­
sented with documents to be executed that admittedly were
inappropriate. Bates Jr. was not an applicant for new employ­
ment.
Having found that Baldwin, Bates Jr., and Sturgis were not
offered a valid and timely offer of reinstatement, I find that it is
inappropriate to inquire into the reasons why they failed to
report to work or failed to work on May 27 and thereafter.
Domsey Trading Corp., supra. I further find that by delaying
their reinstatement and discharging them, the Respondent vio­
lated Section 8(a)(1) and (3) of the Act.
The Respondent accurately sets forth the following analysis
with respect to the 8(a)(5) allegations:
Section 8(a)(5) of the Act makes it unlawful for an employer
“to refuse to bargain collectively with the representatives of
his employees subject to the provisions of section 9(a) [which
requires the parties to bargain collectively over ‘rates of pay,
wages, hours of employment, or other conditions of employ­
ment’].” 29 U.S.C. §§ 158(a)(5), 159(a) (1994). Generally,
an employer who unilaterally institutes changes in wages,
hours or other conditions of employment violates Section
8(a)(5). See Litton Fin. Printing Div. v. NLRB, 501 U.S. 190,
198 (1991). There are certain exceptions to this rule, how-
ever, including where the employer and employee representa­
tive are at impasse in their negotiations. ld. As the Board has
stated, impasse occurs “after good-faith negotiations have ex­
hausted the prospects of concluding an agreement.” Taft
Broadcasting Corp., 163 NLRB 475, 478 (1967), affd. sub
nom. Television & Radio Artists v. NLRB, 395 F.2d 622
(D.C. Cir. 1968). Among the facts considered in determining
whether impasse has been reached are (1) whether there has
been a strike; (2) the fluidity of the parties’ positions; (3) con­
tinuation of bargaining; (4) the duration of hiatus between
bargaining meetings; and (5) the number and duration of bar-
gaining sessions. 1 THE DEVELOPING LABOR LAW 693-95
(Patrick Hardin ed., 3d ed. 1992) (citing cases). Once im­
passe has been reached, the employer is permitted to make
unilateral changes in working conditions, provided they are
not substantially different than its pre-impasse bargaining
proposals. Atlas Tack Corp., 226 NLRB 222, 227 (1976), en-
forced, 559 F.2d 1201 (1st Cir. 1977), and which are consis­
tent with the offers the union has rejected. NLRB v. Plainville
Ready Mix Concrete, [309 NLRB 581 (1992)] 1995 U.S.
App. LEXIS 109910 (6th Cir. 1995); cert. denied, 516 U.S.
[974 (1995).]
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Citing Johnson-Bateman Co., 295 NLRB 180 (1989), the
General Counsel correctly states that drug testing programs
constitute mandatory subjects of bargaining.
The General Counsel correctly sets forth as a statement of
Board law that assuming the existence of good-faith impasse,
an employer is not privileged to implement a proposal that is
not reasonably encompassed within the preimpasse proposal,
appropriately citing Emhart Industries , 297 NLRB 215, 217
(1987). As found above, the drug testing obligation imposed
upon returning strikers went well beyond that which was pur­
portedly implemented by the Respondent for other employees
and required no postemployment rehabilitation upon a failure
of a drug test, but rather a successful drug test as a precondition
to employment consideration. Not only was such a policy uni­
laterally announced in violation of the Respondent’s bargaining
obligation, but it constituted a discriminatory condition of em­
ployment solely imposed upon employees who had engaged in
concerted, protected strike activities. Accordingly, I find that
by its announcement and implementation of the drug test policy
for returning strikers as set forth in its May 4 letter, the Re­
spondent violated Section 8(a)(1), (3), and (5) of the Act.
As to the remaining allegations of the complaint relating to
Bates, I find that because of the foregoing credibility evalua­
tions, they are without merit.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union is, and has been at all material times, the ex­
clusive bargaining agent under Section 9(a) of the Act for pur­
poses of collective bargaining for the Respondent’s employees
in the following appropriate collective-bargaining unit:
All production and maintenance employees of Respondent at
its Muskegon, Michigan plant; excluding office or clerical
employees, professional employees, foremen and guards and
supervisors as defined in the Act.
4. By discharging, by delaying reinstatement, and by failing
to make a valid offer of immediate reinstatement to bargaining
unit employees who joined in the strike that commenced Febru­
ary 2, 1998, and who thereafter made an unconditional offer to
return to work, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(3) and (1) and Section 2(6) and (7) of the Act.
5. By unilaterally conditioning reinstatement consideration
of the above-strikers upon the successful passing of a drug and
alcohol abuse test, and by its implementation of such policy
without prior notice and bargaining with the Union, the Re­
spondent violated Section 8(a)(5) and (1) of the Act and Sec­
tion 8(d) of the Act, and by its discriminatory application of
such policy, the Respondent violated Section 8(a)(3) and (1)
and thereby committed unfair labor practices affecting com­
merce within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has in no other manner violated the Act.
THE REMEDY
Having found that the Respondent has engaged in certain un­
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu­
ate the policies of the Act. As to all employees who joined in
the strike and remained on strike that commenced February 2,
1998, and for whom an unconditional offer to return to work
was made, I shall order the Respondent to offer them immedi­
ate and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, discharging if necessary any replacements,
and make them whole for any loss of earnings and other bene­
fits, computed on a quarterly basis from the date of their un­
conditional offer to return to work to the date of proper offers
of reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended17
ORDER
The Respondent, Pinnacle Metal Products Company f/k/a
The Wilkie Company, Muskegon, Michigan, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, delaying reinstatement, or failing to make a
valid offer of immediate reinstatement to bargaining unit em­
ployees who joined in the strike that commenced on February
2, 1998, and who thereafter made an unconditional offer on
April 30, 1999, to return to work.
(b) Unilaterally and discriminatorily conditioning considera­
tion of the above-strikers upon the successful passing of a drug
and alcohol abuse test without prior notice to or bargaining
with Local Lodge 670, District Lodge 97, International Asso­
ciation of Machinists and Aerospace Workers, AFL–CIO, the
exclusive bargaining representative under the Act for employ­
ees in the following appropriate unit:
All production and maintenance employees of Respondent at
its Muskegon, Michigan plant; excluding office or clerical
employees, professional employees, foremen and guards and
supervisors as defined in the Act.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec­
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer to those
employees who joined the strike that commenced February 2,
1998, and for whom unconditional offers to return to work were
17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom­
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
PINNACLE METAL PRODUCTS CO. 819
made on April 30, 1999, including those whom it discharged,
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi­
leges previously enjoyed, discharging if necessary any re-
placements, and make whole those employees, including those
for whom it delayed reinstatement, for any losses of earnings or
benefits suffered as a result of its conduct in the manner set
forth in the Remedy section of this decision.
(b) Rescind the discriminatory and unilaterally imposed drug
and alcohol abuse policy of May 4, 1999, which required the
taking and successful passing of a drug and alcohol abuse test
as a precondition for reinstatement consideration of bargaining
unit striking employees who have made an unconditional offer
to return to work.
(c) Bargain in good faith with the Union about the terms and
conditions and applicability of drug and alcohol abuse tests for
striking bargaining unit employees who make an unconditional
offer to return to work.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per­
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or­
der.
(e) Within 14 days after service by the Region, post at its fa­
cility in Muskegon, Michigan, copies of the attached notice
marked “Appendix.”18 Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed­
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since May 10, 1999.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
18 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.”