Presto Casting Company

National Labor Relations Board - Board Decisions

Jun 21, 1982

262 N.L.R.B. 346 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Presto Casting Company and United Steelworkers of
America, AFL-CIO-CLC. Cases 28-CA-6237,
28-CA-6237-2, and 8-CA-6344
June 21, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On February 10, 1982, Administrative Law
Judge Russell L. Stevens issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel and the Respondent filed exceptions and a
supporting brief. The Respondent also filed a brief
in opposition to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings," and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Presto Casting
Company, Phoenix, Arizona, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
I We agree with the Administrative Law Judge that the Respondent,
inter alia, violated Sec. 8(a)(3) and (1) of the Act when it refused to rein-
state economic strikers upon their unconditional offer to return to work.
While not specifically alleged in the complaint, this matter was litigated
at the hearing and, as noted by the Administrative Law Judge, the Re-
spondent has failed to meet its burden of showing why the economic
strikers could not be immediately reinstated.
I In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an oppor-
tunity to present evidence, the National Labor Re-
lations Board has found that we violated the Na-
tional Labor Relations Act and we have been or-
dered to post this notice.
WE WILL NOT violate Section 8(a)(5) and (1)
of the Act by discontinuing our past practice
of giving employees annual Christmas gifts of
turkeys, without first notifying or bargaining
with the Union; by failing and refusing to ac-
knowledge and sign a 1-year agreement with
the Union, reached on March 6, 1981; and by
refusing to honor and implement the provi-
sions of said contract of March 6, 1981, relat-
ing to dues checkoffs and employee griev-
ances.
WE WILL NOT violate Section 8(a)(3) and (1)
of the Act by failing and refusing to reinstate
economic strikers who were not permanently
replaced during their strike, upon their uncon-
ditional offer to return to work; and by requir-
ing that said economic strikers sign a compa-
ny-prepared request for reinstatement as a con-
dition of reinstatement.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed in
Section 7 of the Act.
WE WILL forthwith sign and acknowledge
the contract reached with the Union on March
6, 1981, and give said contract retroactive
effect to said date of March 6, 1981.
WE WILL make whole all employees who
suffered any losses by reason of failure to sign
said contract on March 6, 1981, and by reason
of our failing and refusing to reinstate econom-
ic strikers who were not permanently replaced
during their strike, upon their unconditional
offer to return to work, with interest.
PRESTO CASTING COMPANY
DECISION
STATEMENT OF THE CASE
RUSSELL. L. STEVENS, Administrative Law Judge: This
case was heard in Phoenix, Arizona, on September 9, 10,
11, and October 21 and 22, 1981.' The charge in Case
28-CA-6237 was filed on January 9 by United Steel-
workers of America, AFL-CIO--CLC (herein called the
Union), and an amended charge was filed by the Union
on February 10. The complaint, issued February 18, al-
leges that Presto Casting Company (Respondent) violat-
ed Section 8(a)(1) and (5) of the National Labor Rela-
tions Act (herein call the Act), as amended. The charge
in Case 28-CA-6237-2 was filed by the Union on Febru-
ary 5, an amended charge was filed by the Union on
February 10, and a second amended charge was filed by
I All dates hereinafter are within 1981, unless stated otherwise.
262 NLRB No. 47
346
PRESTO CASTING CO.
the Union on February 27. The complaint, issued March
24, alleges that Respondent violated Section 8(a)(1) and
(5) of the Act. The charge in Case 28-CA-6344 was
filed by the Union on March 11. The complaint, issued
April 14, alleges that Respondent violated Section
8(a)(1), (3),.and (5) of the Act. By Order dated April 14,
the Regional Director for Region 28 consolidated said
three cases for hearing. The hearing of all three cases
was heard as aforesaid.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.
Upon the entire record,2 and from my observation of
the witnesses and their demeanor, I make the following:
1. JURISDICTION
3
Respondent is, and at all times material herein has
been, a corporation duly organized under, and existing
by virtue of, the laws of the State of Arizona, with an
office and place of business at 5440 West Missouri
Avenue, Glendale, Arizona, and a heat treatment plant
located at 59th Avenue and West Van Buren Street in
Phoenix, Arizona, where it is engaged in the production
of rough metal castings.
During the past 12-month period, which period is rep-
resentative of its operations generally, Respondent, in the
course and conduct of its operations, purchased goods
and materials valued in excess of $50,000 which were
transported in interstate commerce and delivered to the
Respondent's place of business in the State of Arizona,
direclty from suppliers located in States of the United
States other than the State of Arizona.
I find that Respondent is, and at all times material
herein has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO-CLC is,
and at all times material herein has been, a labor organi-
zation within the meaning of Section 2(5).
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background4
Respondent is a metal casting firm, which casts alumi-
num and magnesium parts for the aerospace industry.
Respondent was organized in 1965 by two partners-Mel
Borovay, 5 who is president of the corporation, and
James Herman, vice president of operations. 6 Respond-
ent has two facilities, located at separate locations in
Phoenix. The principal facility is the foundry, located at
2 The General Counsel's motion to correct transcript, filed with the
brief, is not opposed of record and is granted.
3 Jurisdictional facts are admitted by Respondent in its pleadings.
4 This background summary is based on stipulations of counsel, and on
credited testimony and evidence that is not in dispute.
· Individuals are referred to herein by their last names.
s The supervisory status of Borovay and Herman is not in dispute.
5440 Missouri, and the secondary facility is the heat
treatment plant on 59th Street.
The Union conducted an organizational campaign
among Respondent's employees at both of Respondent's
facilities in the fall of 1980. During that campaign, Re-
spondent utilized the services of West Coast Industrial
Relations Association (West Coast), whose board chair-
man is Fred Long. West Coast is a labor and industrial
relations organization with many years' experience, and
Long, an attorney, has been engaged in the field of labor
relations since 1960. The Union's campaign was success-
ful, and, on November 12, 1980, the Union was certified
by the Board as the exclusive collective-bargaining rep-
resentative of Respondent's employees in the following
unit:
All production and maintenance employees em-
ployed by Respondent at its plant located at 5440
West Missouri Avenue, Glendale, Arizona, and its
heat treatment plant located at 59th Avenue and
Van Buren Street, Phoenix, Arizona; excluding all
office clerical employees, guards, and supervisors as
defined in the Act.7
On November 21, 1980, James Smith, a long-time staff
representative of the Union and temporary subdistrict 8
director for the Union, wrote a letter to Herman, re-
quested certain information for negotiation purposes,8
and suggested the dates of December 8, 9, and 10 for ne-
gotiations. On December 5, 1980, John Garza, a repre-
sentative of West Coast, replied to Smith's letter to
Herman and suggested alternative negotiation dates of
December 17 and 31, and January 3, because of prior
commitments on the dates proposed by Smith.
The first negotiation session was held on December
15, 1980, and lasted approximately 30 mintues. In attend-
ance for Respondent were Garza and one of Herman's
sons. In attendance for the Union were Smith; Arnold
Mendivil, an employee who was on the Union's negotia-
tion committee; Danny Campbell, an employee who was
on the Union's negotiation committee; and Harlin Cor-
nett.
The next negotiation session was held for several
hours on January 7. Some time prior to that meeting
Smith had learned that Respondent had not given a
Christmas turkey bonus in 1980 as it consistently had
done each Christmas for many years, and at the meeting
he inquired about the matter. The subject, which is dis-
cussed in detail infra, was not settled at the meeting and
on January 9 the Union filed an unfair labor practice
charge, mentioned above, alleging discontinuance by Re-
spondent of the latter's past practice of giving turkeys,
because of Respondent's employees having been orga-
nized by the Union. Respondent submitted some propos-
als, all of a noneconomic nature, which were discussed at
this meeting.
The Union prepared an economic proposal covering
holidays, overtime, cost-of-living, life insurance, a medi-
cal and dental program, shift premiums, wages, and cof-
As of November 16, 1980, the unit consisted of 161 employees.
' Smith acknowledged that Respondent furnished to the Union during
negotiations all information requested by the Union prior to negotiations.
347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
feebreaks, 9 and gave the proposal to Respondent at the
negotiation session of January 14. However, the proposal
was not discussed because Respondent first wanted to
prepare its economic proposals. Noneconomic matters
were discussed at this meeting of January 14, since the
Union decided to so use the time while awaiting prepara-
tion by Respondent of its economic proposal.
The parties met again on January 21, 28, 29, and 30
and February 2, 3, 5, and 10 and discussed noneconomic
proposals.
On February 2 Smith sent a strongly worded mailgram
to Borovay, saying he felt Respondent's representative
(Garza) was not bargaining in good faith, and that "a
strike seems imminent."'0
On February 5 Long received a telephone call from
West Coast's Southern California representative, who ad-
vised that there appeared to be a personality clash be-
tween Smith and Garza, and that assistance was needed.
Long decided to take over the negotiations, commencing
with the meeting with the Union scheduled for February
10 at 10 a.m. Long went to Phoenix, and shortly after
arrival talked with Garza, Herman, and Borovay, during
which conversation he learned that the Union had called
a strike on February 9, the preceding day. Long also
learned that a principal problem was a dues-checkoff
provision the Union wanted, and that another problem
was the turkey bonus. Long advised Herman and Boro-
vay that they were required to continue the turkey gift
as in the past, and they agreed to do so. (This matter is
discussed infra.) Long also talked with Herman and Bor-
ovay about the "do's and don'ts" of union negotiations.
A meeting was held between the Union and Respond-
ent the following day, February 10, with the presence of
Ron Collotta, a representative of the Federal Mediation
and Conciliation Service (FMCS) replacing Sam Frank-
lin, who to that time had been working with Respondent
and the Union. Long talked separately with Collotta,
and, later, talked with Smith and Collotta together. At
the meeting Smith told Long, who inquired about the
reason for the strike, "We had to shut them down in an
effort to get the non-economic issues resolved."" Long
asked for some time to prepare a draft of noneconomic
proposals, and he left the room to do so. When he later
brought the proposals back into the meeting room, he
and Smith discussed a few problem areas and then
agreed to Respondent's proposals as they were changed
9 G.C. Exh. 6.
'0 On February 4 Borovay wrote a letter to Smith, summarizing
events to that date and stating, inter alia, "It has been our understanding
that an agreement had been reached 'early on' between the parties re: an
agenda of bargaining topics-non-economic issues firstly and economic
issues last." So far as the record shows, that statement by Borovay accu-
rately reflected the agreement of the parties. Smith did not challenge
Borovay's understanding.
Ai This strike is not in issue. The quotation is from Smith's testimony.
There is no allegation of bad-faith bargaining as of this time, and it is
clear that the strike of February 9-10 was not an unfair labor practice
strike. This conclusion is mandated by the sequence of events and by
Smith's lengthy testimony on cross-examination, giving in some detail the
negotiations and agreement reached on noneconomic matters prior to and
on February 10. Smith testified that the strike was caused by Garza's fail-
ure to appear for a meeting scheduled February 9, but it is clear that the
strike was in order to put the heat on Respondent for an early contract.
It was a very short strike, and Long got negotiations back on the track
soon after he arrived in Phoenix on February 10.
in a few places. Although Smith and Long had come to
an agreement, Smith demanded, and Long supplied to
him, an agreement that, if the economic issues were re-
solved prior to February 18, Respondent would make
wage rates retroactive to the date of the certification of
the Union as representative of the unit employees. Be-
cause the noneconomic proposals all were agreed to by
the parties, and because Smith received an assurance of
retroactivity if an economic agreement were reached,
Smith called off the strike, and the employees returned
to work on February 11.12 At the close of the meeting,
Smith and Long agreed to meet on February 17 to dis-
cuss economic proposals. Long assured Smith that every
effort would be made by Respondent to resolve the eco-
nomic issues on February 17.
On February 17 Respondent distributed turkeys to all
unit employees who were present that day, and those
employees who were not present received a certificate to
get a turkey.' 3
Respondent caused to be prepared a typed version of
the noneconomic proposals agreed to by Smith and
Long on February 10. One minor correction subsequent-
ly was made, and Garza delivered the final, typed agree-
ment to Smith sometime between February 10 and 17.14
The agreement had a coversheet reading as follows:
February 10, 1981
The Company reserves the right to change, with-
draw or present additional proposals other than the
ones outlined here at any time during these negotia-
tions.
John J. Garza' 5
During the evening of February 10 Long met with
Borovay and Herman. Long reviewed the agreement
reached with Smith relative to noneconomic matters, and
they discussed at length and in detail the economic issues
that would be the basis for the meeting of February 17.
It was agreed that a principal issue would be the merit
system. The Union wanted flat rates for various catego-
ries and steps of employment, and Respondent wanted to
continue its existing merit increase program. The docu-
'" Long credibly testified that Smith asked for, and received, assur-
ances that there would be no reprisals against employees who went out
on strike February 9; and that Long asked for, and received, assurances
that the Board would withhold further action on the charge concerning
turkey gifts until February 18. This testimony is given no weight in
making findings and conclusions, but it has been considered in assessing
the relationship of the parties.
"3 The matter of the turkeys continued after February 17 to be an
issue, and, ultimately, the parties agreed that distribution of yearend tur-
keys would be an established practice.
]4 G.C. Exh. 9.
i" Much testimony was devoted to the question of whether, as Smith
contends, the agreement of February 10 was "full and complete," and
final, or whether it was tentative, as contended by Long. Whatever may
be the nature of the agreement itself, Long and Smith concur that they
reached an agreement, which is G.C. Exh. 9. It is app'rently from the
record, and it is found, that the agreement reached by Long and Smith
was intended to be part of an overall contract, if such a contract could be
reached, and that, without a total contract, .C. Exh. 9 would not be a
separately enforceable contract. Long's testimony, and Garza's cover-
sheet quoted above, which was not challenged by the Ugion, support the
record on this point. There is no evidence, however, that the parties ever
discussed the language on the coversheet.
348
PRESTO CASTING CO.
ment the three used as a basis for their later proposals is
General Counsel's Exhibit 26. Long cautioned Borovay
and Herman that, to reach an agreement, they would be
required to compromise their positions on many matters,
including wages and promotions. Herman and Borovay
met with Long again on February 16 and showed Long
what they would offer (indicated on G.C. Exh. 26), but
the two would not relinquish their position on the merit
increases which the Union opposed so vigorously.
Long, Borovay, and Herman met with Smith on Feb-
ruary 17, in a session that lasted several hours. Collotta
was present, as needed. During the early part of the
meeting, Respondent gave the Union a list of Respond-
ent's job descriptions,' s and Respondent's "First Eco-
nomic Proposal."17 The parties discussed the Union's
economic proposals,' 8 and the Union gave Respondent a
counterproposal covering wages, shift premiums, holi-
days, cost-of-living adjustments (COLA), insurance, and
pensions. The term of the agreement proposal was
"open."19 Respondent then submitted its counteroffer,
labeled "Company's Second Economic Proposal," at 5
p.m. 20 At approximately 5:25 p.m. the Union presented
to Respondent its counterproposal to Respondent's coun-
terproposal. 21 Long then presented the following note to
Smith:
JIM SMITH
Your 5:25 pm proposal does not appear too seri-
ous.
Suggest at this time you give us you bottom line
proposal that you and your committee would rec-
ommend so we cut out the bullshit.
If we buy it we can go home. If not we'll know
where we stand.
Fred A. Long
After much further discussion between Long and Smith,
at which sometimes Herman, Borovay, and Collotta
were present, separately or together, Respondent submit-
ted to the Union its final/final offer,2 2 at approximately
midnight. At approximately 12:30 a.m., the Union gave
to Respondent its further counteroffer. At approximately
I a.m., Long replied to Smith:
Company's Response to Union's Counter Proposal to
Company Final/Final Offer
The Company's Final/Final Offer was, in fact,
final. Predicated on your last counter proposal to
our final offer, noting wages the Union proposed in
counter are higher than those proposed in Union's
first wages proposal on 1-29-81. It seems safe to
conclude we are at impasse in these negotiations.
We are not prepared to move further than our final
offer. It appears the Union is also not prepared to
move further either. If that is the case we suspect
l' G.C. Exh. 3.
t' G.C. Exh. 12.
'8 G.C. Exh.%.
'O G.C. Exh. t3.
2o G.C. Exh. 14.
you will advise the mediator your going home so
we can go home.
Fred A. Long
The Union replied to Long:
The Union's last proposal was not as final as the
companies, however it must be noted that the
wages proposed were in direct relations to impor-
tance as proposed by the Company and in response
to its freezing of employees' rights to Automatic
promotion with a Classification.
We are here to bargain a Contract and not to
make two grown men that own the Company
happy, we know they want to retain the same prac-
tices they had and if they want they can but they
will certainly pay better wages for the privileges of
continuing selective promotions.
Do what you may, we want a Contract and have
spent a lot of time to get it and will spend much
more if needed.
The Union
Long replied to the Union:
TO THE UNION (1:00 a.m.)
To repeat, the Company's final offer was final.
We are sorry you aren't happy with it. However,
there no further concessions to be made. Sometimes
it is difficult to change long standing practices even
with union representation. There are no guarantees
that union representation automatically means ev-
eryone gets what they want. That is the process of
bargaining.
Since the Union apparently will not accept the
Company's firm and final offer after due considera-
tion; and since the Company will not change its
offer; we are declaring an impasse in these negotia-
tions.
Fred R. Long
Although the parties did not come to an agreement,
they agreed, and Collotta concurred, that a further meet-
ing should be held on February 26.
The parties met on February 26,23 in Collotta's office.
After a brief preliminary discussion, the Union gave Re-
spondent an offer, 24 which Long rejected after talking
on the telephone with Borovay and Herman. Long re-
plied to the Union in writing:
The Company has reviewed the Union's offer of
2:10 p.m., Feb. 26, 1981, and discussed it by phone
with Mel Borovay, President. The Company is of
the opinion the Union is playing games based on its
suggested offer and keeping the parties together
when it has no intention of accepting the Compa-
" G.C. Exh. 15.
:2 G.C. Exh. 18.
" At the hearing, Long and Smith both testified that the opposing
party was not on time. That discrepancy is not resolved and is given no
weight.
a4 G.C. Exh. 24.
349
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ny's final offer or anything close to it. The Compa-
ny, therefore, rejects the Union's proposal and re-
peats it has made its final best proposal to the
Union. Unless the Union is prepared to accept the
Company's final proposal or to re-arrange the eco-
nomics of the Company's final proposal without
adding additional economic cost, it unfortunately
appears that despite agreement on all language mat-
ters, we are hopelessly deadlocked on economics.
Submitted 2:30 p.m. FMCS
FR Long
Company Spokesman
Long called Borovay and Herman on the telephone, said
there was an impasse, and advised that Respondent could
implement its last wage offer, effective immediately. Re-
spondent implemented wage increases on February 26.
On February 26 the Union negotiating committee sent
a letter to all of Respondent's employees:
TO ALL PRESTO EMPLOYEES:
Dear Fellow Workers:
Your Union has had numerous meetings with the
expensive firm Jim and Mel. The Company has
hired them to keep us working cheap so thay they
can live in luxury while most of us can hardly
afford to eat.
Now we have got to make a very important
choice:
Either work for what we've got, or strike to better
ourselves!/!!!
The choice is clearly ours. The Union will repre-
sent us. They will talk for us and advise us, but we,
the workers, must make the choice ...
Some of us are Union Members, some are not.
However, we are all low paid, badly treated play
things of Jim and Mel's. We are all Presto Employ-
ees and must stick together as Presto Employees to
advance ourselves to decent wages and working
conditions.
Would it surprise you if the Company were
paying the California firm over a hundred thousand
dollars to keep from signing a decent contract?
Do you know how much of an increase we could
have with a hundred thousand dollars? Just think-
the total raise, all together, that was offered was
$45.00 per hour cost to the Company!
Well, as was said, the choice is ours. We must
shoot Presto down tomorrow morning and we must
all stay out until we get in our two big bosses'
pocket books.
A strike vote will be held tonight at 5:00 p.m., at
the I.W. Abel Hall, 23 North 35th Avenue, Phoe-
nix, Arizona.
Please attend and exercise our unity to help
shorten the strike!!
Smith held a meeting of Respondent's employees the
evening of February 26, at which nine employees stated
in writing that they had been offered raises effective the
following Monday. The employees voted to strike and a
strike commenced February 27 at 6 a.m. Some picket
signs (commencing the second day of the strike, since it
was raining the first day) read "United Steelworkers of
America on Strike," and others read "Presto Casting
unfair, United Steelworkers of America on Strike."
The strike lasted until March 6, when it became appar-
ent to Smith that many employees were returning to
work, which was weakening the strike. The strike was
called off at 2:45 p.m., March 6. Smith advised members
of the negotiating committee that he was going to termi-
nate the strike and accept Respondent's last offer. On
March 6 Smith sent the following mailgram to Respond-
ent:
THE UNITED STEEL WORKERS OF AMERICA AC-
CEPTS THE COMPANY'S FINAL OFFER MADE TO THE
UNION ON FEBRUARY 17, 1981. THE EMPLOYEES
SHALL BE RETURNING TO WORK STARTING MONDAY
MORNING MARCH 9, 1981 AND ALL PICKETS WILL
BE REMOVED. THE UNION SUGGESTS AN EARLY
MEETING FOR THE PURPOSE OF SIGNING THE AGREE-
MENT. PLEASE HAVE FINAL COPIES MADE.
On March 9 Long wrote to Smith 2 5 and advised him
that, since the Union previously had rejected Respond-
ent's last offer, there could be no contract between the
parties based on Respondent's last offer. Long suggested
further meetings with the Union, for further negotiations.
On March 11 Smith sent the following mailgram to
Respondent:
THE UNION HEREBY UNCONDITIONALLY MAKES AP-
PLICATION FOR REINSTATEMENT OF ALL BARGAIN-
ING UNIT EMPLOYEES. THESE EMPLOYEES REPORTED
FOR WORK ON MARCH 9, 1981 AND WILL REPORT
AGAIN ON MARCH 13, 1981.
By letter dated March 12, Smith replied to Long's
letter of March 9 and stated the Union's position that the
parties had a contract, based on Respondent's last offer
and the Union's acceptance thereof.
On March 16 Smith wrote a letter to Respondent, en-
closed checkoff authorization cards of employees, and
requested dues deductions for the employees "as per
contract," referring to provisions of the noneconomic
agreement reached by Long and Smith on February 10.
B. Case 28-CA-6237
Paragraphs 9 and 13 of this case allege, in substance,
that, on or about December 24, 1980, Respondent dis-
continued its past practice of granting Christmas bonuses
to unit employees without notice to, or bargaining with,
the Union, in violation of Section 8(a)(1) and (5) of the
Act.
The facts of a lengthy past practice (14 or 15 years) of
giving employees Christmas turkeys; of not giving any to
employees in 1980; and of giving them to unit employees
in February upon advice of counsel, are not in dispute.
2" G.C. Exh. 34.
350
PRESTO CASTING CO.
Further, there is no question but what the failure of Re-
spondent to give unit employees turkeys in 1980 was a
result of the Union's organization of the employees. Fi-
nally, Respondent acknowledged that the fact of failure
to give unit employees turkeys in 1980 was not bargained
with the Union, which then was the employees' exclu-
sive bargaining representative, and that the Union was
not notified in advance of the failure.
Based upon the undisputed facts, it is apparent that, as
of the end of 1980, Respondent was in violation of
Section 8(a)(5) and (1) of the Act. The principal question
on this issue is whether or not Respondent's correction
in February of its violation in December relieves Re-
spondent of the initial violation.
Respondent acknowledges its "mistake," but argues in
its brief that, since it made the mistake in good faith,
later rectified its error, subsequently bargained about the
subject, and included in its contract offer to the Union a
provision relative to gifts of turkeys, its "technical" vio-
lation does not warrant a remedial order. In support of
its argument Respondent cites Bellinger Shipyards. Inc. 26
That case is not the same as the case herein, and is not
controlling, since (I) there was no showing in Bellinger
that any employee adversely was affected during the il-
legal rule's existence. Here, the employees adversely
were affected at Christmastime, regardless of the fact
that the illegality was "cured" in February; (2) there was
no showing in Bellinger that the Respondent there en-
gaged in any unlawful act, other than promulgation of an
illegal rule which it later rescinded (that is not the case
herein, as discussed infra); in Bellinger, the Respondent
voluntarily put itself in compliance with the Act. Here,
Respondent put itself in compliance only after the Union
filed a charge and objected that Respondent's actions
were illegal; and (4) the violation in Bellinger was found
by the Board to be minimal (Sec. 8(a)(l)). Respondent's
illegality in this case is found not to be minimal because
of its effect on thie rights of the Union, as well as on the
rights of employees.
It is found that Respondent violated Section 8(a)(5)
and (1) of the Act, as alleged.
C. Case 28-CA-6237-2
Paragraph 13 of the complaint alleges, in substance,
that Respondent insisted during negotiations upon a
wage proposal unacceptable to the Union, based on a
merit system; that Respondent implementated its propos-
al over objection of the Union; and that the implemen-
tion occurred in the absence of a grievance and good-
faith bargaining.
1. The wage proposals
Both sides made many proposals on many subjects
during negotiations, and both sides demonstrated on
many occasions their willingness to comprise their posi-
tions. As noted supra, there was substantial movement by
both sides on noneconolnic items, resulting in agreement
and a document embodying those items. As discussed
elsewhere herein, Respondent and the Union also com-
promised their initial positions on several economic
"6 227 NLRB 620 (1977).
items, after much hard bargaining. It is clear that, but for
the matter of determining wages, as opposed to the
amount thereof, the parties probably would have been
able to agree. The one item that both sides insisted upon
was that of their own systems of how to determine wage
increases. Respondent wanted to keep the same sort of
merit promotion system it had maintained since it began
business, and the Union wanted the kind of system to
which it is accustomed; i.e., flat rates with orderly
progession of employees in a predetermined manner. The
General Counsel argues that Respondent was insistent
upon keeping its merit system in order to undermine the
Union as the bargaining representative of Respondent's
employees, but as discussed herein, the record does not
support that argument. It is clear, as found infra, that Re-
spondent was insistent upon keeping its system, albeit in
a possibly modified form, for sound economic reasons.
The General Counsel does not argue that a merit sys-
tems per se is illegal, and in fact it is not illegal. Further,
it cannot reasonably be argued that such a system is re-
pugnant to the Union, because Case 28-CA-6237, dis-
cussed below, is grounded upon the contention that Re-
spondent now refuses to sign an agreement allegedly
reached between the parties, which encompasses the
merit system proposed by Respondent in its final/final
offer. Therefore, the initial question relative to this issue
involves Respondent's motive in standing pat during ne-
gotiations. on the matter of merit promotions.
Borovay was a credible witness, and his summary of
Respondent's sensitivity concerning the Union's desire to
eliminate Respondent's merit systems is accepted as accu-
rate and truthful. Borovay testified: Respondent is a job
shop, which casts aluminum and magnesium aircraft
parts for military and commercial customers. The parts
are produced to customer specifications, usually in short
runs, and are held to very close tolerances. The craft is a
dying one, in that it no longer is taught in high schools
or colleges. Acquisition of skillful craftsmen for the in-
dustry always is difficult, and it is particularly difficult in
Arizona, which is not a highly industrialized area. The
instances wherein Respondent is able to find skilled
craftsmen for its employee complement are rare, yet
safety requirements are such that quality control is rigid.
Most employees must be obtained "off the street" and
trained on the job, yet they must be held to the same ac-
curacy standards as skilled craftsmen. The molds are in
sand and are heavy, thus the work is hard as well as de-
manding. Because of the nature of the jobs, there are
many quits and discharges-turnover is high. Capabilities
of employees vary, as a result of which some become
proficient in a short time whereas others never become
proficient. In order to encourage and reward capable
employees, and to prevent loading the payroll with low
producers, the merit system of promotion has been in
effect since the Company started in business in 1965.
Such a system is flexible and useful, since it assists in
keeping a capable work force and also provides a good
basis for estimating prices. The business of Respondent is
highly competitive, and protection against cost fluctu-
ations and excesses is necessary because of the length of
leadtime between orders and production-8 months to 2
351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
years. Respondent's business, as well as that of its com-
petitors, began to drop late in 1980, and became evident
in early 1981. It has steadily declined since that time. A
year ago Respondent had 230 employees, both hourly
and salaried, and today has 70, of which 13 or 14 are sal-
aried and the remainder hourly.2 7 Borovay participated
in conversations with Long in negotiations with the
Union. Respondent was anxious to get a contract as soon
as possible, and to avoid a strike, in order to be able to
bid on an intelligent basis and to continue to compete in
the depressed market. The Company presently is on a
survival basis, and further layoffs are under considera-
tion. The two separate plants currently are being consoli-
dated into a single plant.
Herman testified much the same as Borovay, relative
to the nature of the business, business conditions, and the
merit system. Relative to the mechanics of the merit
system, Herman credibly testified: A merit increase is a
reward for excellence. The raises are based on periodic
evaluations by Herman, Borovay, and the employee's su-
pervisor. Until late 1978, the top rates of employees were
appraised annually for possible wage increases and there-
after, because of rapid inflation, appraisals were made
twice each year, in March and September. However,
there is no set system, and some employees at less than
the top rates may receive three or four increases in a
year. Since 1979, an employee who reaches top wage
does not thereafter receive merit increases. Employees
reach top pay only through merit increases. No merit in-
creases have been given since June 1980, upon advice of
counsel, pending agreement with the Union. Across-the-
board increases never have been given to employees.
The Union's first wage proposal (G.C. Exh. 6) pro-
poses a flat rate of pay for 11 types of employees, with
no steps or variations among the types, or grades, of em-
ployees. The rates range from a low of $4.80 per hour
for new hire laborers, to $7.20 per hour for inspectors.
Respondent's first wage proposal (G.C. Exh. 12) pro-
poses eight grades of employees, with steps "A," "B,"
and "C" within the grades to account for increased pro-
ficiency. The minimum is $4 per hour for a laborer's
starting rate; the maximum is $7 per hour for inspectors.
Leadmen and specialties were proposed at rates higher
than other employees. Respondent proposed that raises
above the wages listed be given "in its sole discretion
based on merit and job performance," as had been done
historically.
Respondent's counterproposal (G.C. Exh. 14) has the
same starting wage rates Respondent previously pro-
posed, but with a provision for automatic progression by
years of service from classifications C to B, and B to A.
The Union's second wage counterproposal (G.C. Exh.
15) is the same as its original, and its first counterpropos-
al.
On February 17 Collotta (FMCS) prepared sugges-
tions (G.C. Exh. 17) which adopt, in pertinent part, Re-
spondent's theory of merit increases, providing that pro-
gression from C to B would be automatic after 12
27 This testinmony was given on October 21. Counsel earlier stipulated
that, as of September 4, Respondent had 111 unit employees, and as of
March 6, Respondent had 188 unit employees.
months, and that progression from B to A would be on
merit, based on bid and seniority.
Respondent's final/final offer is much the same as its
last counteroffer, with automatic raises after 90 days, and
merit raises thereafter. The A, B, and C classifications
are retained.
The Union's counterproposal to Respondent's
final/final offer shows a slight reduction in wage
amounts, but retains the Union's basic insistence upon
flat rates for all three classifications, A, B, and C, with
no allowance of merit increases.
2. Discussion
The above summary does not reflect the fact that,
during negotiations, each side made several concessions
and offers of a minor nature. Further, the actual amounts
of wage differences of the two sides were not great. If
amounts alone were the cause of failure to agree, it ap-
pears that an agreement would have been forthcoming.
It is apparent that one thing only stood in the way of
agreement. Neither side was prepared to yield on the
merit issue.
So far as motive is concerned, there is no evidence, or
even suspicion, that Respondent was out to break the
Union, or interfere with it, but insisting upon a merit
system. It had a practice of many years standing that had
been successful. It did not want to abandon that system
for the untried one the Union insisted upon as a replace-
ment. Respondent offered some dilution of its system,
and Collotta suggested a modified merit system. Howev-
er, the Union would not yield either to Respondent or to
Collotta. It insisted to the end, upon a flat-rate system
Respondent did not like or want. Respondent did not
show bad faith or intransigence-to the contrary, it is ap-
parent that Respondent did not want a strike, was will-
ing to compromise, and bargained to the best of its abili-
ty, in good faith.
Finally, it is noted that the ilnion did not budge in its
demand for a flat rate system, nor did it offer any sug-
gested compromise, nor did it offer any proposal for par-
ticipating in a merit system. The Union had struck Re-
spondent early in F:ebruary, and made it clear that an-
other strike was a possibility. From early in negotiations,
the Union seemed to be strike-minded. On January 9 the
Union already had set a "deadline of January 31" for its
obtaining a "decent contract" (Resp. Exh. 8); on Febru-
ary 10 the Union was preparing for a strike by selecting
captains and planning for strike relief and food stamps
(Resp. Exh. 9); on February 18 the Union exhorted all of
Respondent's employees carefully to consider a strike
(Resp. Exh. 11).Z8
3. The impasse
The fact that a grievance did not exist when an im-
passe occurred, which fact is alleged in the complaint, is
not in dispute but that fact is immaterial.
The fact of impasse clearly is established by the
record. It is apparent from the testimony qf Long and
2" The General Counsel acknowledged at the hearing that there was
no allegation of bad-faith hbargaining by Respondent prior to February 17.
352
PRESTO CASTING CO.
Smith, discussed in part above, that they considered
themselves at impasse at the close of the session on Feb-
ruary 26.
Celestino Torres, one of the Union's representatives,
attended most of the negotiation sessions and many meet-
ings of Respondent's employees, including the one held
on February 26, which was chaired by Smith. At the
meeting Smith reported to employees what had occurred
earlier in the day, at the negotiation session with Re-
spondent. Torres kept notes of the employee meeting,
and identified those notes as Respondent's Exhibit 18.
Page 2 of those notes states, inter alia:
Meeting today - Report
Reject the Union proposal
We are deadlocked
2 Alternatives - to sign last offer
or strike the Company
On February 26 the Union's negotiating committee ad-
dressed a letter to "All Presto Workers," 29 reading in
part as follows:
Well, as was said, the choice is ours. We must
shoot Presto down tomorrow morning and we must
all stay out until we get in our two big bosses'
pocket books.
A strike vote will be held tonight at 5:00 p.m., at
the I.W. Abel Hall, 23 North 35th Avenue, Phoe-
nix, Arizona.
Please attend and exercise our unity to help
shorten the strike!!
Mendivil testified that he attended the employee meet-
ing of February 26, and that the employees decided "we
weren't getting anyplace with the company and that we
would have to go on strike."
The principal question on this issue is whether the im-
passe was reached as a result of good faith, hard bargain-
ing, or, as alleged by the General Counsel, as a result of
Respondent's bargaining in bad faith.
The principal moves of both sides during the final bar-
gaining session on February 26 are disclosed above.
Based on those moves, it is clear that both sides bar-
gained hard, that both compromised on several positions,
that both appeared anxious to reach an agreement, and
that the principal impediment was the merit system. 3°
In assessing the fides of the parties, it is necessary to
consider the witnesses and their demeanor. Long and
Borovay were impressive. Long's recitation of events at
the bargaining sessions of February 17 and 26, and at-
tendance of private sessions with Borovay and Herman,
was lengthy, detailed, complex, and, in several instances,
supported by documentary evidence. The possibility of
lacing such a presentation with manufactured testimony
's Resp. Exh' I1.
10 It is noted that the parties were bargaining for an initial contract;
they had no bargaining history. Whether either party, or both parties,
would retreat from their positions if and when a second contract was ne-
gotiated is spechlative. However, the question of ides must be considered
in light of the relationship between Respondent and the Union. Obvious-
ly, the bargaining stance of the parties was considered by the Union
when it later contended that its offer must be accepted by Respondent.
seems very remote. Long was cross-examined but briefly,
and his testimony withstood that cross-examination quite
well. Long is credited, and his explanation of events at
the two February sessions is accepted as accurate. Boro-
vay, who corroborated Longe in several matters, was
credited above.
Smith's testimony was not of the same calibre as that
of Long, and his demeanor throughout the hearing was
not as impressive as that of Long. Smith appeared to be
quick to allege bad faith, and to accuse Respondent of
doing wrong things. His testimony was less lengthy and
detailed than that of Long, and he exposed much on
cross-examination that explained his direct examination.
As between the two, upon whose versions a finding must
in large measure rest, Long appeared to be the more reli-
able. Based upon the sequence of events of February 17
and 26, and upon the testimony of record, it is clear, and
found, that Respondent did not, as alleged, cause or con-
tribute to an impasse in negotiations with the Union by
acting or bargaining in bad faith.
The General Counsel argues that the fact of impasse
after only one or two meetings indicates Respondent's
bad faith, and cites cases in support of that proposition.
However, neither those cases nor commonsense teach
that an impasse may not be reached at even a single ses-
sion. Facts of cases differ. Here, Smith already had set a
deadline of January 31 for a contract, and throughout
the record it is apparent that Smith was in a hurry. On
one occasion, February 9, he called a strike solely in
order to speed up the bargaining process. Prior to Febru-
ary 17 Smith repeatedly pressed Long for early action,
and obtained Long's assurance that Respondent's com-
plete and final economic proposal would be presented to
the Union on February 17. That proposal was given, but
the Union did not accept it, or offer reasonably to com-
promise the principal issue preventing agreement. Final-
ly, Smith agreed with Long, that there would be no re-
troactivity unless the parties could reach agreement for a
contract no later than February 18. Under such circum-
stances, on impasse as of February 26, when both sides
held to their last offers was a logical conclusion of bar-
gaining efforts. Neither side was in a mood to bargain
further, and the fact that numerous bargaining sessions
were not held thereafter, does not bring into play a legal
proposition that Respondent was bargaining in bad faith.
The Union was trying to force Respondent to give up a
personnel practice of longstanding, dating from the in-
ception of Respondent's existence, and substitute therefor
a system of promotion that was alien to Respondent and
to the peculiarities of Respondent's business. It is under-
standable that Respondent would bargain hard to resist a
system that did not take into account the fact that ap-
proximately 90 percent of Respondent's employees were
hired without experience. Respondent trained nearly all
its employees, and the dictates of business would militate
against rewarding all employees with promotion in ex-
actly the same manner, as the Union insisted upon. There
is nothing in this record to show that Respondent was
acting in bad faith when it was willing to take a strike
rather than to change its promotion practice to suit the
Union. Further, it was Respondent, not the Union, that
353
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offered a compromise position for both sides. That offer
was rejected by the Union, without making a realistic
counteroffer.
The Union pushed Respondent to the limit, and is not
in a position now to complain that Respondent acted in
bad faith by not giving up the fight.a'
4. Implementation of Respondent's wage proposal
Paragraph 14 of the complaint alleges that, on or
about February 26, Respondent announced and unilater-
ally implemented its economic proposal. The wage pro-
posal referred to is Respondent's final/final proposal sub-
mitted to the Union on February 17.
As discussed above, the parties reached an impasse on
February 26 and did not reach an agreement for a bar-
gaining contract, primarily because of a difference con-
cerning merit promotions.
On February 18 Borovay wrote a memorandum to all
of Respondent's employees, stating that Respondent had
negotiated with the Union on February 17 until I a.m.
Attached to the memorandum was a copy of Respond-
ent's final offer to the Union.
There is no dispute concerning the fact that, during
the afternoon of February 26 and on February 27,
Herman met individually in his office with approximately
50 employees and their supervisors. Herman credibly tes-
tified that he said the same thing to each employee; i.e.,
"On the advice of my counsel, I understand that we are
now at impasse. And on the advice of my counsel . . . I
now may effectively implement our wage proposal. As
of March 3, your wage will be . . . including merit."
The amounts of wages quoted to employees were the
amounts that are encircled on General Counsel's Exhibit
26.
Herman testified that, in order to reach an agreement
with the Union as early as possible, and to protect Re-
spondent against another strike, all unit employees were
evaluated for merit increases in advance of the negotia-
tion scheduled for February 17. The evaluations com-
menced in late January and were attended by Herman,
Borovay, and appropriate supervisors. Representatives of
West Coast were in attendance at some, or possibly all,
the evaluations. The amounts proposed as merit increases
for all employees are at the extreme right side of the
General Counsel's Exhibit 26. Herman testified that the
amounts of the increases are in accordance with past
practice.3 2 He further testified that, in giving the raises,
Respondent took into consideration the fact that employ-
ees had not been given raises since June 1980.
The General Counsel first argues that the increases
given to employees were not given in the face of a real
impasse, since the impasse was achieved by Respondent
a' The General Counsel's argument that Respondent's proposal was
unconditional, and would deprive the Union of any substantial participa-
tion in wage establishment, is without merit. The proposal, as compro-
mised by Respondent, did provide the Union with substantial participa-
tion in timing, amounts, regularization of reviews, and minimum rates of
wages for unit employees. Further, as previously noted, the Union agreed
to accept Respondent's offer after its strike failed.
3' Counsel stipulated that unit employees received a wage increase on
February 26, as shown by circled amounts on G.C. Exh. 26, and that unit
employees have not, to date, received another wage increase from Re-
spondent.
in bad faith, in order to undercut the Union. The record
does not support such a finding, as discussed above.
The General Counsel argues that "The Respondent's
unilateral wage increases on February 26, determined
before the first economic offer was presented, derogated
the Union's representative status, was tantamount to
dealing directly with the employees, and clearly violated
Section 8(a)(l) and (5) of the Act." 33 However, that ar-
gument misses the point. Respondent's purpose in prepar-
ing General Counsel's Exhibit 26 was not to undercut
the Union, or to deal directly with employees. The pur-
pose was to assist in preparing an offer to the Union, and
no employee was told that he was being evaluated or
would be offered a raise. The figures originally arrived
at were tentative, often were changed, and reflected how
far Respondent was prepared to go in negotiations. The
first time employees were told about raises was after the
Union and Respondent were at impasse.
The General Counsel argues that, even assuming a
good-faith impasse, Respondent's implementation of
raises was a violation of the Act because it was an imple-
mentation of only a part of its last offer to the Union,
and, further, that Respondent's implementation must be
"reasonably comprehended within the employer's preim-
passe proposals,"34 which it was not.
In view of the nature of an impasse, there is no re-
quirement that an employer who implements some of his
proposals, must implement his entire proposal. As the
Board stated in Hi- Way Billboards, Inc.:3 5
A genuine impasse in negotiations is synonymous
with a deadlock: the parties have discussed a sub-
ject or subjects in good faith, and, despite their best
efforts to achieve agreement with respect to such,
neither party is willing to move from its respective
position. When such a deadlock is reached between
the parties, the duty to bargain about the subject
matter of the impasse merely becomes dormant until
changed circumstances indicate that an agreement
may be possible. Once a genuine impasse is reached,
the parties can concurrently exert economic pres-
sure on each other, the union can call for a strike,
the employer can engage in a lockout, make unilat-
eral changes in working conditions if they are con-
sistent with the offers the union has rejected, or hire
replacements to counter the loss of striking employ-
ees. Such economic pressure usually breaks the
stalemate between the parties, changes the circum-
stances of the bargaining atmosphere, and revives
the parties' duty to bargain.
Thus, a genuine impasse is akin to a hiatus in ne-
gotiations. In the overall ongoing process of collec-
tive bargaining, it is merely a point at which the
parties cease to negotiate and often resort to forms
of economic persuasion to establish the primacy of
their negotiating position ...
Is G.C. br., p. 14.
a4 Pease Company, 251 NLRB 540, enfd. 603 F.2d 225 (9th Cir. 1979);
Providence Medical Center, 243 NLRB 714 (1979).
3' 206 NLRB 22, 23 (1973).
354
PRESTO CASTING CO.
The General Counsel argues, however, that, in not im-
plementing benefits other than wages, Respondent did
not implement what was "reasonably comprehended" by
its final/final offer, and, further, that the new wages for
employees included merit increases that exceeded the
amounts of past merit increases; included merit increases
for employees (top grades) who in the past received only
nonmerit increases; and constituted an across-the-board
raise that in the past had not been given to employees.
So far as not implementing proposed benefits as well
as wages is concerned, that omission does not, of itself,
invalidate Respondent's actions. That portion of its pro-
posal implemented by Respondent is entitled: "I.
Wages/Classifications/Grades." The "Other Economics
Proposed" starts with section II. Under the law enunci-
ated above, all matters other than wages still are out-
standing, possibly later to be the subject of negotiation.
Benefits, as well as all items other than wages, classifica-
tions, and grades, are "dormant" until they are again
taken up by the parties.
A different question is the one that relates to the merit
raises. In his brief, the General Counsel does not clearly
distinguish Respondent's final/final proposal from the
rough worksheet Respondent used in evaluating, classify-
ing, and grading its employees for the purpose of negoti-
ating with the Union. So far as the record shows, Re-
spondent's announced wage increases did not depart
from its final/final proposal, although the record is not
complete, in that starting dates are not shown for all em-
ployees subject to the proposal. The proposal has auto-
matic start rates and progressions after 90 days. Thereaf-
ter, the amounts to be given at 6 months and beyond are
to be given on "merit," with no predetermined figures
shown. It is this last fact, of course, that the Union ob-
jected to during negotiations. The record also is not
complete in that it does not include an exact comparison
of past raises for all employees, with the raises given on
February 26 and 27. The General Counsel argues that
the new raises are substantially more than past raises, but
that is speculative, since exact comparisons are not, and
possibly could not, be made, and, further, no raises were
given between June 1980 and February 1981.36 Equally
incomplete is the record so far as "top grades" are con-
cerned. Some of them got raises February 26-27, as the
General Counsel points out, but Herman testified that
those grades were evaluated once or twice each year and
given raises, even though they did not participate in
merit raises. The fact that General Counsel's Exhibit 26
shows those individuals as scheduled for increases, does
not, in and of itself, establish a departure from past prac-
tice. So far as the "across-the-board" nature of the raises
is concerned, Herman testified, as stated by the General
Counsel, that he could not remember any such raises, but
that there may have been raises for "80 percent, what-
ever." When later he was questioned, he said he did not
think they ever gave 100 percent of the salaried employ-
ees raises. The record is not complete or conclusive on
this point, but it is clear that, even as of February 26-27,
35 This failure to give raises is not alleged, and is not found, to be a
violation of the Act.
not all employees were given raises. No employees'
wages were reduced, however.
Although the record is not as clear or complete as it
could be, it is clear that the parties arrived at an impasse
on the matter of merit raises; that Respondent thereafter
gave raises that encompassed both automatic progres-
sions and merit increases; and that the raises substantially
were in accord with Respondent's final/final offer to the
Union. The Union was informed by Long of Respond-
ent's intended action, and the Union was aware of the
nature of the proposed increases as a result of negotia-
tions based on General Counsel's Exhibit 26. No viola-
tion of the Act is found, so far as this issue is con-
cerned. 37
5. Alleged interrogation by Jarling
Paragraph 17 of the complaint alleges that, on or
about October 30, 1980, and on various dates thereafter,
Walter Jarling coercively interrogated employees con-
cerning union meetings.
Jarling,3 8 who no longer works for Respondent, was a
coreroom supervisor for Respondent at times relevant
herein.
Raymond Maestas, no longer an employee of Re-
spondent, testified that, from October 1980 through
March 1981, he was employed by Respondent and that
his supervisor was Jarling. Maestas said he was a union
organizer, and a member of the Union. Beginning prior
to Christmas 1980 he wore union insignia at work, two
or three times each week. Maestas testified: During the
Union's organizational campaign, Jarling frequently ques-
tioned him about union meetings, the days following the
meetings. Jarling asked how many people attended the
meetings, and asked the names of those who attended.
Those conversations occurred in late 1980 and on many
different occasions until after March 6, 1981.
Jarling testified: During late 1980, and well into 1981,
when the Union was holding meetings over beer in a
lounge, Maestas and employee Manny Sianez frequently
asked him to go to the meetings with them. The witness
declined the invitations, which he received once each
week for 2 weeks. After the meetings were moved to the
union hall, he received no more invitations. Jarling testi-
fied:
Q. The day after the meeting, did you have con-
versations with Mr. Maestas about the meeting?
A. No. The only thing that-when they had
them over to the beer bust and he'd come back in
the morning, I'd say "Well, did you get a load on
last night?" And he would say-well I'd say to him
did you have enough beer and he would say "No, I
don't drink beer, they buy me liquor."
3' The General Counsel argues that Respondent's bad faith is shown
by the fact that Respondent started negotiations after it already had
begun to evaluate employees, thus Respondent went into negotiations
with fixed intentions. However, as pointed out above, the core issue was
not amounts of pay-both sides showed some willingness to compromise
amounts. The real problem was the matter of merit raises, irrespective of
the amounts of those raises. Respondent implemented what it argued for
during negotiations-a combination of fixed rates and merit raises.
36 Jarling's supervisory status is admitted by Respondent.
355
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Have you told us everything that you recall
about any conversations that you had with Mr.
Maestas, concerning the Union?
A. Well, only one time-well, it was after the
first strike, that they were on, he had told me that
he didn't know whether he should go with the
Union anymore. And he had buttons and caps that
he was wearing and he took it all off and even gave
me a couple of those pencil clip holders from the
Union.
Jarling denied that he ever asked Maestas how many
people attended the meetings, or who attended them. He
said that was not necessary, since the identity of those
who went was common knowledge in the shop.
Discussion
Jarling was an impressive witness. He was an older
person who appeared to be retired, and seemed quite sin-
cere and candid. He was not cross-examined.
Because of the absence of support for Maestas' testi-
mony, and the convincing nature of Jarling's recitation,
Jarling is credited and it is found that this allegation was
not proved.
6. Alleged statements by Jarling and Bustos
Paragraph 18 of the complaint alleges that, on or
about February 2 and 5, John Bustos and Jarling, respec-
tively, advised employees that unit employees would re-
ceive wage increases if they did not support the Union in
the event of a strike.
Bustos has been a supervisor of the aluminum foundry
since August 1980.39
Maestas testified that he talked with Jarling in Febru-
ary, on a date he cannot remember, but prior to the
strike of February 9:
A. Well, he was telling me that whoever passes
the picket line would automatically get a raise.
Q. Did he say anything else?
A. Oh I asked him how much of a raise the em-
ployees get. He said between $.50 and $.35 an hour
more.
Q. Was anything else said?
A. Yes, I asked him how much of a raise I would
have gotten, you know, if I'd pass the picket line.
He told me $.50 because I'm a shell core operator
and I told him about my wife, you know, for coin-
cidence how much she'd be getting if she passed the
picket line. He said $.35.
Jarling testified that he never told Maestas, or anyone
else, that he would earn more money if he crossed a
picket line.
Robert Koller, a laborer for Respondent from March
1980 until August 14, 1981, testified that he talked with
Bustos, his supervisor, on February 4:
Q. Mr. Koller, during your conversation with
Mr. Bustos, was anything said about a raise?
3s Respondent admits Bustos' supervisory status.
A. Yeah, he said people who crossed the picket
lines would get their raises and that these raises
were being offered to everybody if we accepted the
contract, but if you crossed the picket line you
would get the raise.
Bustos testified that he frequently talked with Koller,
mostly about sports, and denied that he ever talked with
Koller about the Steelworkers Union. He said he remem-
bered talking with Koller in February, when Koller ap-
proached him:
Before I-you know, I used to work in construc-
tion and I was in the Union and he just asked me if
the Union was good. I said, "If it was good, I
wouldn't be here." I said because it would be good
but-I told him, you know, I was laid-off a lot of
times, you know. Worked two or three weeks then
go back and work another week and laid of again,
so I just, you know, quit the Union.
Bustos said he told Koller that his former union was La-
borers International. Bustos denied telling Koller that
Respondent would pay employees who would cross a
picket line, and he testified that, in February 1981, he
knew nothing about negotiations between Respondent
and the Union. Bustos further testified that he talked
with Loera sometime in February:
. . .He came to me one morning and he asked
me about this. He said, "Hey John, it is true that if
we cross the picket line we get more money?" I
was surprised, I didn't even know myself. You
know, I said, "I don't know, why?" He said, "Well
you know what I heard." At that time there was
another supervisor there, Ralph Fazzari, so I went
and asked him. I said, "Hey Ralph," I told him
what happened, you know, "Is it true that if you
cross the picket line?" I said, "No I don't know. I
don't think so, I haven't heard nothing." I just went
back and told him. That was it. That was that con-
versation right there.
Q. You went back and told Norberto that, no he
wasn't going to get anymore money?
A. That's right.
Herman testified that, sometime in February, he met
with employees Joe Rodriquez, Pasqual Estrada, Norbert
Loera, Cas Loera, and Roy Rois, after Rodriquez initiat-
ed a conversation. Rodriquez was the spokesman, and
asked why he could not receive more money for having
crossed the picket line during the strike of February 9
and 10. Herman said he replied:
I responded and told him he knew bloody well
that we couldn't do that. It was illegal. No promises
had been made to him. He responded to me, "Well
damn it, it ought to be worth something, and if
that's the case, you're telling me we're no different
than those blankety-blanks who went out." I told
Joe that it was illegal, as we have told them all
along. That we had made no promises to anyone
and what he did with his actions was his affair.
356
PRESTO CASTING CO.
Ralph Fazzari, a foundry supervisor,40 testified that he
talked with Rodriquez several days after February 10,
and that Estrada also was present. Fazzari testified that
Rodriquez wanted to know why there was not any more
money in the paycheck that day, because he crossed the
picket line during the strike and expected more money.
Fazzari told Rodriquez such an idea was "totally un-
founded" since Respondent was restricted by law from
rewarding employees for crossing picket lines, and he
asked Rodriquez the source of such an idea. Rodriquez
could not give the answer. Fazzari was present when
Herman met with the employees named above, and gen-
erally corroborated Herman's version of that meeting.
Fazzari corroborated Bustos' testimony concerning
Bustos' inquiry after talking with Loera.
Discussion
The credibility of Maestas and Jarling are discussed
above. Jarling was not cross-examined.
The only basis for resolving this issue is the credibility
of witnesses. Their testimony was brief, and each is with-
out independent support. Maestas' testimony appeared on
its face to be doubtful, since he testified that Jarling told
him the amount of the raise for refusing to cross a picket
line (note-in the future, since there was no strike until
February 9) depended upon work classification, and
Maestas quoted the amounts of the alleged possible
raises, both for himself and his wife. The two subjects-
crossing the picket lines and receiving raises based upon
work classification-seemed so unrelated that the possi-
bility of confusion in Maestas' mind suggests itself.
As previously discussed, Jarling was an impressive
witness, who no longer works for Respondent. He is
credited, and no violation of the Act is found, so far as
this allegation is concerned.
So far as the other testimony on this issue is con-
cerned, it is noted initially that neither Loera nor Rodri-
quez, nor any other unit employee allegedly involved,
was called to testify. It is apparent that the possibility of
employees being rewarded for crossing picket lines was
common shop talk in February. The source of that
rumor was not established, but, at the time it was being
passed around, another subject also was uppermost in
employees' minds; i.e., the possibility of a strike. Both
Respondent and the Union were keeping employees ad-
vised of negotiation developments, and those negotia-
tions were a subject of much employee concern and in-
terest. It is not possible, on the record, to determine
whether some employees who crossed the picket line ex-
pected, and requested, an after-the-fact reward for so
doing, or whether Respondent made an offer to reward
employees if they later crossed the line. Maestas spoke of
future rewards, by way of raises based upon job classifi-
cation, and Koller spoke of merely being paid to cross
the picket line. Bustos testified that Loera asked him
about "more money" if employees crossed the picket
line, and Herman testified that the group of employees
he met with wanted "more money" for having already
crossed the picket line on February 9 or 10.
40 Fazzari's supervisory status is not in dispute.
Commencing in January, Garza and Nels Umble of
West Coast began meeting with Respondent's supervisors
and instructing them in the "do's and dont's" of union
organization. At least four meetings were held in January
and February, and Herman and Borovay were in attend-
ance. Herman credibly testified that he impressed upon
supervisors the requirement that they closely abide by
the instructions of Garza and Umble. Herman and Boro-
vay credibly testified that a "Strike Guide for Manage-
ment" 41 was discussed at a meeting of supervisors in
February, and that it was explained in detail by Garza
and Umble.
The fact that supervisors were trained in organization-
al conduct is not controlling, but, in the absence of direct
evidence other than the testimony of witnesses involved
in alleged violations of the law, that fact must be, and is,
considered.
In view of the inconclusive testimony of Maestas and
Koller, and the contradictory testimony of other wit-
nesses involved in this allegation, it cannot be said that
the record supports a finding that Respondent violated
the Act as alleged. A possible scenario would be that Re-
spondent first told some employees that they would be
rewarded if they crossed the picket lines, but later, upon
learning that such action would be illegal, recanted the
promise. However, that scenario is highly speculative,
and is not accepted.
This allegation is not supported by the record.
D. Case 28-CA-6344
I. Paragraph 20 of the complaint alleges that the strike
of February 27 to March 6 was an unfair labor practice.
In order to sustain the burden of proof on this issue,
the General Counsel would have to establish that Re-
spondent's unfair labor practices caused the strike, or
caused the strike to be prolonged.
As shown above, Respondent committed only one
unfair labor practice-it refused in 1980 to give unit em-
ployees their usual Christmas turkeys. However, also
prior to that strike, Respondent gave employees the tur-
keys in February, and also embodied in their proposal to
the Union a provision relative to Christmas turkeys. The
employees knew of Respondent's proposal prior to Feb-
ruary 27. The General Counsel argues that Respondent's
unfair labor practices were discussed at the employee
meeting of February 26, but the only unfair labor prac-
tice they could have discussed concerned the turkeys,
and it is quite clear that the employees did not strike,
wholly or partially, because of the turkeys.
The reason for the strike was the failure of the Union
to bring Respondent to heel on the merit pay issue. That
fact is shown beyond any reasonable doubt, throughout
the record. Smith made it clear in his testimony that
money was the basis of the strike. Koller testified rela-
tive to the employee meeting of February 26:
Well, the purpose of the meeting was to go over
the economic proposal. If we did not like it, we
'4 Resp Exh. 3.
357
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would go on strike again for a better economic pro-
posal.
By letter to Respondent's employees on February
18,4 2 the Union's negotiating committee stated, inter alia:
"However, the choice is yours. You can strike now and
maybe lose or you can wait until we can better economi-
cally hurt Borovay and Herman." That letter did not
mention unfair labor practices.
On February 26 the Union's negotiating committee
again addressed a letter to "All Presto Workers" and
stated, inter alia: "Either work for what we've got or
strike to better ourselves." The letter also stated, "...
the choice is ours. We must shoot Presto down tomor-
row morning and we must all stay out until we get in
our two big bosses' pocket books." The letter did not
mention unfair labor practices.
Strong testified relative to the employee meeting of
February 26, and said, "Well, mostly we went back to
tell the people what had been said at the meeting and
what had been done." Strong mentioned nothing about
unfair labor practices.
In view of the foregoing, it cannot be found, and is
not found, that this allegation is supported by the record.
The indicia of an unfair labor practice strike were not
shown. 4 3
The General Counsel argues that Smith frequently dis-
cussed with employees the fact that Respondent was
guilty of unfair labor practices and that some of the
picket signs referred to unfair labor practices. It is noted
that similar allegations frequently were made at the hear-
ing and elsewhere in the record. However, those state-
ments are supported only to the extent shown herein,
and making the statements does not alone establish com-
mission by Respondent of unfair labor practices. It is
clear that Respondent's employees and the Union were
motivated only by one thing when they struck-the
desire to obtain a better contract than would result from
accepting Respondent's proposal.
It is noted that, after the strike failed and the Union
offered to accept Respondent's proposal, nothing was
said about unfair labor practices. The argument then cen-
tered solely upon whether or not the Union would
accept Respondent's offer.
2. Paragraph 12 of the complaint alleges that, on
March 6, the Union accepted Respondent's final/final
proposal, and paragraph 13 alleges, in effect, that, since
March 6, Respondent and the Union have been bound by
that contract.
Smith sent Respondent a mailgram on March 6,
quoted supra, stating inter alia, that the Union accepted
Respondent's final offer made on February 17. (This
refers to what Respondent calls its final/final offer.)
Other than that mailgram, Smith did not talk with, or
send any correspondence to Respondent or West Coast.
Campbell credibly testified that, on March 6, he in-
formed Garza that the Union was terminating the strike
and accepting Respondent's final offer and stated, "Now
we've accepted this final proposal. You're not going to
i4 Resp. Exh. 10.
4' Alco Venetian Blind Co.. Inc., 253 NLRB 1216 (1981); Gulf Envelope
Company, 256 NLRB 320 (1981).
piss backwards on us, are you?" to which Garza shook
his head and said, "No." Garza did not testify.
Garza and Campbell (a member of the Union's negoti-
ating team, and a strike captain) were agents of West
Coast and the Union, respectively. As contended by the
General Counsel, Garza's knowledge is imputed to Re-
spondent, and it is found that, as of approximately 2:45
p.m., on March 6, Respondent knew that the Union was
accepting Respondent's final/final offer.
The fact that the parties reached an agreement on Feb-
ruary 10 relating to all noneconomic items is not in dis-
pute, as discussed above. Although Garza indicated on
the coversheet of the noneconomic proposal that Re-
spondent reserved the right to change, withdraw, or
present additional proposals on noneconomic items, there
is no evidence that the stated right ever was exercised.
So far as the record shows, the proposal remained un-
touched and still existing as of March 6. Although, as
noted, the noneconomic agreement was not a separate,
enforceable contract, it nevertheless represented a por-
tion of a contract to which the parties had agreed, and
the fact is not in dispute that the parties treated econom-
ics and noneconomics separately. Respondent was not
prepared to offer any economic proposals until nonecon-
omic matters had been agreed to. The sequence of nego-
tiations followed the desires of Respondent, acceded to
by the Union.
The General Counsel principally relies on Pepsi-Cola
Bottling Company of Mason City, Iowa, 251 NLRB 187
(1981), enfd. 659 F.2d 87 (8th Cir.), in support of the
proposition that a counteroffer does not necessarily
reject a bargaining agreement offer, although under gen-
eral contract law a counteroffer constitutes rejection of
an offer.
The facts of Pepsi-Cola, while not exactly the same as
those herein, essentially are the same, and the law of
Pepsi-Cola controls this issue. In that case the Adminis-
trative Law Judge stated, inter alia:
There can be no quarrel with Respondent's view
that under strict principles of contract law, an offer,
once rejected, no longer exists. However, as the
General Counsel observes, ". . . the Board is [not]
strictly bound by the technical rules of contract
law." N.L.R.B. v. Donkin's Inn, Inc., 532 F.2d 138,
141-142 (C.A. 9, 1976). Consistent therewith, in a
ruling which I find not materially distinct from the
issue framed here, the Board held that an employer
violated Section 8(a)(5) of the Act by its refusal to
enter a written agreement based on its previously
made complete contract proposal accepted by the
Union, but only after the latter had rejected that
offer on two prior occasions. See Penasquitos Gar-
dens, Inc., 236 NLRB 994, 995, enfd. 604 F.2d 225
(C.A. 9, 1979). As I understand the precedent of the
Board, a complete package proposal made on behalf
of either party through negotiations remains viable,
and upon acceptance in toto must be executed as
part of the statutory duty to bargain in good faith,
unless expressly withdrawn prior to such accept-
ance, or defeased by an event upon which the offer
was expressly made contingent at a time prior to ac-
358
PRESTO CASTING CO.
ceptance. Respondent in the instant case took no
such steps and when the Union abandoned all col-
lateral demands, and elected to accept this complete
package, a binding agreement was consumate.
Long testified that, after Garza told him what Camp-
bell had said about the Union accepting Respondent's
final/final offer,44 he ". . . instructed Garza to call
FMCS and advise FMCS that we pulled the offer off the
table." Long testified that Garza later told him that
FMCS had been notified, and Smith testified that Col-
lotta told him at approximately 3:45 p.m. (note: which
was approximately 1 hour after Campbell talked with
Garza) that Respondent had withdrawn its final/final
offer. Respondent did not receive the Union's acceptance
mailgram until March 7, but that is immaterial in view of
Campbell's conversation with Garza.4 5 Long's immedi-
ate reaction after his talk with Garza was his recognition
of the fact that technically, under ordinary contract law,
Respondent's offer had to be withdrawn prior to notice
of acceptance having been received. However, Long
acted after Respondent already had been notified of the
Union's intent to accept. As pointed out by the General
Counsel, the inquiry is whether the parties had reached
agreement, not whether technical contract law had been
adhered to.4 6
Respondent argues that the offer of February 17 was
conditional upon several factors, and thus was not an
offer that could ripen into a contract by acceptance. In
support of that argument Respondent refers to the lack
of a date certain for implementation of new contract
rates; lack of dates on which various wage increases
would be implemented; the fact that the Union's propos-
als of February 26 compelled Respondent to withdraw
its prior offer of retroactivity and all fringe benefit con-
cessions; the fact that Smith alone accepted Respondent's
offer, after Respondent's employees already had rejected
the proposal; and the fact that, unlike in Pepsi-Cola, the
collective-bargaining process here had been complete as
of February 26.
Respondent's arguments are considered to be without
merit. Respondent's final/final offer is clear and unambi-
guous. It is for a I-year term. A lengthy explanation
under "Progression" on pages 2, 3, and 4 of the offer re-
moves any question about the application of starting
rates of employees, and rates to be applied thereafter. In
view of Respondent's bargaining stance, and its insis-
tence upon the finality of its proposal, it is unrealistic to
contend that the proposal contained any doubt, or con-
tingencies, or conditions. So far as Smith alone accepting
the offer is concerned, there is nothing to show that his
action was improper or illegal-Smith was the employ-
ees' elected representative. Further, the employees aban-
doned the strike and returned to work as Smith advised
44 Long testified that Garza's information was a rumor, but Garza did
not testify, and Campbell's direct testimony on this point was credited
supra.
45 The fact that contract law in the ordinary sense would require writ-
ten, rather than oral, acceptance is not considered controlling herein.
Garza had actual notice of acceptance, and only that actual notice trig-
gered Respondent's attempted withdrawal of the offer.
46 Penasquilos, supra, Donkins Inn. Inc., 532 F.2d 138 (9th Cir. 1976),
cert. denied 429 U.S. 895.
Respondent they would. So far as the bargaining process
is concerned, the Union represented the employees when
the contract was accepted, and that representation did
not cease only because the parties arrived at impasse.
Further, the fact that 'impasse was reached and bargain-
ing broke off did not sever the relationship between the
parties, nor did it affect the responsibilities of the parties
to continue to bargain. The impasse was brought about
by failure to agree upon only a part of a contract, and
resulted only in a dormant-not a dead--relationship be-
tween Respondent and the Union. 4 7
It is found that Respondent and the Union agreed
upon, and are bound by, all terms of a contract effective
March 6, 1981; that those terms are embodied in the
General Counsel's Exhibits 9 (noneconomic) and 18 (eco-
nomic); that the Union requested, and Respondent re-
fused, Respondent's recognition and execution of the
contract; and that Respondent's refusal to recognize and
execute the contract violated Section 8(a)(5) and (1) of
the Act, as alleged.
3. Paragraphs 17 and 18 of the complaint allege, in
effect, that Respondent has repudiated and failed to
comply with the provisions of the contract of March 6.
The contract between the parties provides for the
processing of grievances and wage checkoffs for union
dues. On March 9 the Union presented grievances to Re-
spondent on behalf of unit employees, and Respondent
refused to accept or process them. On March 16 Smith
requested dues checkoffs on behalf of unit employees and
Respondent refused that request. In May the Union again
presented grievances to the Union on behalf of unit em-
ployees, and Respondent refused to accept or process the
grievances.
By reason of Respondent's refusal to abide by griev-
ance and dues-checkoff provisions of its contract with
the Union, Respondent violated Section 8(a)(5) and (1) of
the Act, as alleged.
4. Paragraphs 23 and 24 of the complaint allege, in
substance, that since March 9 Respondent has failed and
refused to honor employees' unconditional applications
for reinstatement, and has placed unlawful conditions
upon the reinstatement of striking employees.
On March 6 the Union sent a mailgram to Respondent
making unconditional application for reinstatement of
employees, with offer to return to work on March 9. A
similar request was sent by the Union to Respondent on
March 11. Individual employees who reported for work
March 9 also made unconditional applications for rein-
statement. It is clear, and found, that all employees, in-
cluding those who reported to work on March 9, were
willing and ready to work, without any condition at-
tached to their return.
When employees returned to report for work, 13 of
them (a total of approximately 60 employees returned)
signed the following form prepared and given to them
by Respondent:
47 Hi-Way Billboards Inc., supra
359
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unconditional Offer to Return to Work
I hereby make an unconditional offer to return to
work at Presto Casting Company. I understand that
if there is no position available for me at this time I
will be placed on a preferred rehire list and recalled
if and when a position becomes available. I also un-
derstand that it is my obligation to keep the Compa-
ny informed of my current address.
NAME PRINT ED
SIGNATURE
DATE
TIME
Respondent contends that signing of the form was not a
condition of reinstatement, but rather, it was to assist Re-
spondent in evaluating its scheduling requirements, and
to make direct communication with employees more effi-
cient.
Strong testified that Herman's son, a supervisor,
showed him the form and said, "Sign it and we's be call-
ing you as we need you." Later, Strong testified that he
heard the supervisor say "he needed to know our ad-
dresses and phone number 'cause he was going to be re-
calling some of the guys back."'
Campbell credibly testified that when he reported for
work at approximately 7:15 a.m., on March 9, with other
employees, they were greeted by their respective super-
visors, and they were shown the form (G.C. Exh. 3):
He handed it to me and said "Read this and sign
it." I read it and I looked at him and said "What if I
refuse to sign this?" At that point James Herman,
who was standing just a few feet from Steve
Herman, turned around and walked over to me and
he said "At that point, consider yourself permanent-
ly replaced." I turned around and left.
Campbell said he did not sign the form, nor did he see
anyone else sign it.
Mendivil corroborated Campbell on this point.
Maestas testified that Steve Herman (a supervisor)
"made us sign the papers (G.C. Exh. 31), and said Re-
spondent needed them in order to provide information to
be used in recalling employees to work." Maestas said
Steve Herman did not say Maestas' job depended upon
signing the form.
Herman testified that returning employees were asked
to sign the form. Herman testified relative to his conver-
sation with Cambell.
I indicated to him, as I did to others, that we had
to reschedule, we had to schedule work loads to be
able to take people in and we needed their last
know address and telephone number.
Herman said he told Strong approximately the same
thing he told Campbell. Herman testified that he never
stated to any employee that signing the form was a con-
dition to return to work.
Discussion
The strike of February 27 to March 6 was an econom-
ic strike, not an unfair labor practice strike, as discussed
above. The strikers therefore were entitled to reinstate-
ment unless they had been permanently replaced while
they were on strike. Many returning strikers were rein-
stated, but not all of them were reinstated immediately
upon their reporting for work on March 9. 48 It was Re-
spondent's burden to show that returning strikers were
not immediately reinstated because they had been perma-
nently replaced, and that burden was not met. There is
no evidence that any striker had been replaced as of the
time the strikers unconditionally differed to return to
work. Further, Respondent offered no evidence to justify
its delay in returning strikers to their jobs, on the basis of
business necessity.49 On this record, Respondent failed
to meet the requirements of the Act when it did not rein-
state the economic strikers immediately upon their un-
conditional offer on March 9 to return to work. A reme-
dial order therefore will issue as requested by the Gener-
al Counsel, regardless of the fact that an 8(a)(3) allega-
tion of failure or refusal to reinstate economic strikers is
not alleged in the complaint.
So far as the General Counsel's Exhibit 31 is con-
cerned, Respondent Prgues that only 13 of 60 striking
employees signed the form and, further, that return to
work was not conditional, expressly or impliedly, upon
employees signing the form.
Respondent acknowledges in its brief that "the form
could have been misconstrued .... " Strong credibly
testified that on March 9, "They made us sign papers
[note: G.C. Exh. 31] in order to go back to work in the
future." Campbell credibly testified James Herman told
him that, if Campbell refused to sign the form, Campbell
must "consider yourself permanently replaced." Mendivil
credibly testified he heard Herman state to Campbell
that, if Campbell did not sign the form "that was it."
Maestas credibly testified that "they made me sign," and
that he returned to work the following day.
It is clear, and found, that Respondent at least implied-
ly, and probably expressly, told employees their rein-
statement was conditional upon their signing the form
quoted supra. Whether fewer than all employees were so
told is immaterial.
Respondent violated Section 8(a)(3) and (1) of the Act
in requiring employees to sign the form, as alleged.50
CONCLUSIONS OF LAW
1. Presto Casting Company is, and at all times material
herein has been, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO-CLC,
is, and at all times material herein has been, a labor orga-
nization within the meaning of Section 2(5) of the Act.
' G.C. Exh. 46.
4 The laidlaw Corporation. 171 NLRB 1366 (1968).
'O Harowe Servo Controls. Inc., 250 NLRB 958 (1980).
360
PRESTO CASTING CO.
3. Respondent violated Section 8(aX5) and (1) of the
Act by: discontinuing its past practice of giving employ-
ees annual Christmas gifts of turkeys, without first noti-
fying or bargaining with the Union; by failing and refus-
ing to acknowledge and sign a 1-year agreement with the
Union, reached on March 6, 1981; and by refusing to
honor and implement the provisions of said contract of
March 6, 1981, relating to dues checkoffs and employee
grievances.
4. Respondent violated Section 8(aX3) and (1) of the
Act by failing and refusing to reinstate economic strikers
upon their unconditional offer to return to work; and by
requiring that said economic strikers sign a company-pre-
pared request for reinstatement as a condition of rein-
statement.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, it is recommended that Respondent be
ordered to cease and desist therefrom, and to take certain
affirmative action designed to effectuate the policies of
the Act.
It is recommended that Respondent be ordered forth-
with to sign the 1-year agreement it reached with the
Union on March 6, 1981; to give retroactive effect to all
terms and conditions of said agreement; and to make
whole all unit employees for any losses they may have
incurred,51 with interest thereon to be computed in the
manner prescribed in F: W Woolworth Company, 90
NLRB 289 (1950), plus interest as set forth in Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962), and, see, gen-
erally, Florida Steel Corporation, 231 NLRB 651 (1977).
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
case, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 5 2
The Respondent, Presto Casting Company, Phoenix,
Arizona, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Violating Section 8(a)(5) and (1) of the Act by dis-
continuing its past practice of giving employees annual
*5 The dates and times that all returning strikers were reinstated, were
not litigated. Those matters, together with reasons, if any, for delay, are
referred to the compliance stage of these proceedings.
"2 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
Christmas gifts of turkeys, without first notifying or bar-
gaining with the Union; failing and refusing to acknowl-
edge and sign a I-year agreement with the Union
reached on March 6, 1981; and refusing to honor and im-
plement the provisions of said contract of March 6, 1981,
relating to dues checkoffs and employee grievances.
(b) Violating Section 8(a)(3) and (1) of the Act by fail-
ing and refusing to reinstate economic strikers who were
not permanently replaced during their strike, upon their
unconditional offer to return to work; and by requiring
that said economic strikers sign a company-prepared re-
quest for reinstatement as a condition of reinstatement.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Forthwith sign and acknowledge the contract
reached with the Union on March 6, 1981, and give said
contract retroactive effect to said date of March 6, 1981.
(b) Make whole all employees who suffered any losses
by reason of failure to sign said contract on March 6,
1981, and by reason of failing and refusing to reinstate
economic strikers who were not permanently replaced
during their strike, upon their unconditional offer to
return to work, with interest, as described above.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its Glendale and Phoenix, Arizona, facilities
copies of the attached notice marked "Appendix. "s3
Copies of said notice, on forms provided by the Regional
Director for Region 28, after being duly signed by its au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
s3 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
361