R. E. Dietz Co.

National Labor Relations Board - Board Decisions

Aug 9, 1993

311 N.L.R.B. 1259 (N.L.R.B. 1993)

1259
311 NLRB No. 167
R. E. DIETZ CO.
1 The principal entries in this case are as follows:
Charge filed by International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America, UAW, Local
33 (AFL–CIO) (Union) against Respondent R. E. Dietz Company on
September 21, 1990; complaint issued by Regional Director, Region
3, against the Respondent on April 17, 1991; Respondent’s answer
filed on May 6, 1991; hearing held in Syracuse, New York, on June
24 and 25, 1991; briefs filed by the General Counsel, the Charging
Party, and the Respondent with me on August 5, 1991.
2 The Respondent admits, and I find, that it is a New York cor-
poration which maintains an office and place of business in Syra-
cuse, New York, where it is engaged in the manufacture, sale, and
distribution of truck lights, mirrors, and related products. During the
preceding 12 months, the Respondent sold and shipped from its Syr-
acuse, New York facility merchandise valued in excess of $50,000.
Continued
R. E. Dietz Company and International Union,
United Automobile, Aerospace and Agricul-
tural Implement Workers of America, U.A.W.,
Local 33 (AFL–CIO). Case 3–CA–15922
August 9, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On November 18, 1991, Administrative Law Judge
Walter H. Maloney issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel and the Charging Party filed answer-
ing briefs, and the Respondent filed briefs in reply.
The National Labor Relations Board has considered
the record in light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings, and
conclusions and to adopt the recommended Order.
The Respondent excepts on due-process grounds to
the judge’s finding that the terms over which it bar-
gained to impasse were nonmandatory subjects of bar-
gaining. The Respondent contends that because it was
not notified that the judge would find the terms non-
mandatory on a theory other than that advanced by the
General Counsel, it was deprived of a meaningful op-
portunity to defend against it. We disagree.
In the complaint and at the hearing, the General
Counsel advanced the theory that the Respondent’s
profit-sharing proposal and its proposed ‘‘superseding
language’’ provision were nonmandatory subjects of
bargaining because they concerned wages already ac-
crued to the employees under the 1985 contract and
the 1986 concessions agreement. In finding that the
terms at issue were nonmandatory as alleged, the judge
specifically employed the General Counsel’s accrued
wages theory and found that under that theory the Re-
spondent’s profit-sharing prosposals were nonmanda-
tory subjects of bargaining because they ‘‘refer[red] to
accrued wages under previous agreements.’’ We spe-
cifically rely on this finding by the judge in concluding
that the Respondent’s profit-sharing proposal was a
nonmandatory subject of bargaining. We do not rely
on the judge’s statement elsewhere that because the
1986 concessions concerned nonmandatory subjects of
bargaining ‘‘[w]hat followed from those concessions
necessarily takes on the same character.’’
The Respondent also excepts on due-process
grounds to the judge’s finding that the parties were not
at impasse prior to August 24, 1990, a theory it argues
was neither advanced in the complaint nor litigated at
the hearing. In this regard, the Respondent contends
that because the General Counsel conceded both at the
hearing and in his brief to the judge that a bargaining
impasse occurred outside the 6-month period in which
an unfair labor practice charge must be filed under
Section 10(b) of the Act, the judge erred by precluding
it from presenting evidence that would establish that
such an impasse did in fact occur and remained unbro-
ken to August 24, 1990. The Respondent further con-
tends that such a showing would require that the com-
plaint be dismissed because any violation alleged
would have occurred outside the 10(b) period. We dis-
agree.
Assuming arguendo that an impasse had occurred
outside the 10(b) period, we agree with both the Gen-
eral Counsel and the judge that the parties’ renewal of
bargaining during the spring of 1990, well within the
10(b) period, evidenced that the parties were not at im-
passe during that time. Thus, any impasse prior to the
10(b) period would have been broken by the spring
1990 bargaining. Because the Respondent had ample
opportunity and did, in fact, litigate the events sur-
rounding this bargaining and their significance, we
conclude that it was not prejudiced by the judge’s pre-
clusion of evidence concerning any impasse that might
have existed outside the 10(b) period.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, R. E. Dietz Company,
Syracuse, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Michael Cooperman, Esq., for the General Counsel.
John T. McCann, Esq. and David W. Larrison, Esq., of Syra-
cuse, New York, for the Respondent.
Alicia Lynch, Esq., of Union, New Jersey, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me at Syracuse, New York,
upon an unfair labor practice complaint,1 issued by the Re-
gional Director for Region 3, which alleges that Respondent
R. E. Dietz Company2 violated Section 8(a)(1), (3), and (5)
1260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Accordingly, the Respondent is an employer engaged in commerce
within the meaning of Sec. 2(2), (6), and (7) of the Act. The Union
is a labor organization within the meaning of Sec. 2(5) of the Act.
3 Errors in the transcript have noted and corrected.
4 One reputable accounting firm came to the conclusion that the
Respondent’s outstanding debts exceeded the total value of its assets
by about $1 million.
of the Act. More particularly, the complaint alleges that the
Respondent bargained to impasse over a nonmandatory sub-
ject of bargaining, at which time an ongoing lockout of the
Respondent’s employees was converted into an unfair labor
practice lockout. The Respondent contends that the subjects
which prompted the impasse in bargaining were mandatory
subjects of bargaining about which it was entitled to insist
to impasse. On these contentions, the issues herein were
joined.3
FINDINGS OF FACT
I. THE UNFAIR LABOR PRACTICES ALLEGED
A. Background
The Respondent has operated a factory or factories in Syr-
acuse, New York, and elsewhere since 1840. In recent dec-
ades, it has concentrated on manufacturing automobile mir-
rors and lights. Its two factories in Syracuse are the only
ones involved in this proceeding. For many years its produc-
tion and maintenance employees in those factories have been
represented by the Union.
In 1985, the Respondent and the Union executed a 3-year
collective-bargaining agreement which was due to expire on
June 26, 1988. Not long after this agreement was signed, the
Respondent had to face up to monumental financial problems
which were threatening the life of the Company. There is no
dispute that, in 1985, the Respondent experienced a net loss
in excess of $3 million. (By some calculations, that loss ex-
ceeded $5 million). Even more critical than the operating
loss was the fact that the Respondent had outstanding loans
to four lending institutions in excess of $8 million and owed
the Internal Revenue Service back taxes which, with interest,
were nearly $500,000.4 In light of this predicament, it ap-
proached the Union for midterm contract concessions in
order to forestall almost certain bankruptcy.
Among the many provisions of the collective-bargaining
agreement in effect in the summer of 1986 was a scheduled
1986 cost-of-living increase (COLA) of $1.20 an hour due
to be implemented in the second quarter of 1986. As a result
of a series of bargaining sessions, the parties agreed to a 7-
percent reduction in existing daywork rates and base rates of
all unit employees. They also agreed to a suspension of the
$1.20 COLA. These changes were put into effect on July 14,
1986. The concession agreement did not act as a permanent
forgiveness of the difference between the contract rates and
the midterm new rates being put into effect. The concession
agreement included an undertaking on the part of the Com-
pany to pay back all of these differences in compensation at
some unspecified future date, i.e., when the Company be-
came profitable.
As time went on, the parties came to a disagreement as
to how long the 7-percent reduction in wages and the suspen-
sion of the $1.20-an-hour COLA were to remain in effect.
The Union demanded that the wage reduction and the COLA
suspension be eliminated on March 5, 1987. The Company
refused, claiming an agreement that the wage reduction and
the COLA suspension were to remain in place until the Com-
pany once again became profitable and insisting that the
Company was not yet profitable. Not satisfied by this re-
sponse, the Union filed a grievance seeking to terminate both
of these concessions and the payment of lump sums due to
affected employees for the amounts which had been withheld
from their pay during the concession period. The matter went
to arbitration before arbitrator William J. Fallon.
The arbitration case was complicated by the fact that the
basic elements of the concession agreement had never been
reduced to writing. Fallon took a great deal of testimony re-
garding the negotiations leading up to the concession agree-
ment and recited much of it in his 57-page opinion. His
award, dated June 20, 1988, read as follows:
The parties did reach agreement in July of 1986. One
of the terms of that oral agreement was that the con-
cessionary wage package to which they agreed will re-
main in effect until the company becomes profitable.
Because the Company has not yet become profitable,
the Company has not violated the July 1986 concession
agreement by continuing to keep the concession wage
package in effect.
The parties are directed to negotiate the terms of the
pay back of concessions, and the definition of profit-
able, including the date for the restoration of pre-con-
cession wages and COLA.
Only the financial condition of the Syracuse oper-
ation of the R. E. Dietz Company shall be considered
for the purpose of determining profitability. The sub-
sidiaries shall be excluded from this determination.
As the award pointed out, one loose end in the oral conces-
sion agreement concerned which of the several definitions of
profitability, discussed by expert witnesses during the arbitra-
tion hearing, the parties had intended to adopt in July 1986.
The definition of profitability would control not only the date
for reinstatement of deferred compensation but, in doing so,
would also determine when growing debt of the Company
for unpaid COLAs and unpaid wages, the amounts originally
established in the contract would cease to accrue. In 1989,
the arbitrator’s award was confirmed by the trial division of
the New York State Supreme Court.
One of the problems giving rise to this case is that the par-
ties have yet to come to an agreement on a definition of
profitability, as used in the 1986 oral agreement. Since that
definition is still up in the air, the 7-percent wage reduction
and the $1.20 COLA has never been reinstated as an ongoing
benefit. Moreover, the amounts due and owing to employees
for all concessions have not been paid back nor has the mode
of repayment been agreed on. These unanswered questions
lie in the background of the dispute herein.
1261R. E. DIETZ CO.
5 It should be remembered that all eligible participants under this
formula had been on strike since early in 1989 and had not been
on the Respondent’s payroll for nearly a year.
On January 9, 1989, the Union struck in support of de-
mands concerning not only the concession agreement but
also for a new contract to replace the one which had expired
in the summer of 1988. One effect of the strike excused the
Company not only from paying current wages of striking
employees but their absence also had the effect of tolling the
accrual of any additional liability to these employees arising
out of the concession agreement, since they were not on the
payroll for any purpose.
On June 7, 1989, the Union made an unconditional offer
on behalf of striking employees to go back to work. The Re-
spondent refused this offer, electing instead to continue to
operate its plants with replacements. It thereby imposed a
lockout. The lockout continues to date. At the time of the
strike, the Respondent employed about 200 people in its Syr-
acuse bargaining unit. At the time of the hearing in this case
in June 1991, that number had dwindled to about 25.
B. Negotiations for a New Contract
Throughout the strike and the lockout, the Respondent and
the Union have continued to negotiate the terms of a new
collective-bargaining agreement. A central feature of those
negotiations has been an effort to come to terms on the mat-
ters left unresolved in 1986 and referred to in the arbitrator’s
award. Between 1988 and December 1990, more than 70 ne-
gotiating sessions took place, some of them under the aus-
pices of a Federal mediator. These negotiating sessions
brought about agreement on a large number of contract items
but they did not serve to resolve the questions of when the
Company would be obligated to begin paying back the de-
ferred compensation which was due and owing under the
1986 concession agreement, what kind of COLA, if any,
would be included in a forthcoming contract, and under what
conditions would a COLA be paid.
In December 1989, the mediator suggested to all parties
that the Respondent submit to the Union its final offer. The
Respondent did so. The final offer was not a completed con-
tract document as such, but, using the expired contract as a
format, the Respondent drew up a list of changes and an ap-
pendix. Along with the provisions of the expired contract
which were undisputed, these items constituted its complete
offer.
The offer provided for a 3-year contract with no reopeners.
As for profit sharing, the Respondent’s summary sheet stat-
ed:
Profit Sharing—Two profitsharing proposals: the first
consists of a profitsharing plan functioning as a pay-
back to individual employees of concession amounts
given up through the effective date of a new contract,
and the second consists of an ongoing profitsharing
plan in lieu of reinstatement of 7% wage reduction and
COLA, coupled with a wage increase at certain profit
levels. These profitsharing proposals shall be instituted
in consideration of 1986 concessions, going forward.
The existing wage rates (reflecting the 7% reduction)
will be incorporated into the contract. COLA language
will be eliminated from the contract.
The plan to be instituted under profitsharing proposal
#l shall distribute applicable percentages of profits to
eligible employees who participated in concessions
through the effective date of the new contract, with in-
dividual payments pro-rated based upon total individual
concession amounts. Eligibility shall be limited to indi-
viduals employed in the bargaining unit on July 8,
1986. The Union shall take full and complete responsi-
bility for timely informing the company of current
names and addresses of eligible participants, and/or
their current beneficiaries.5
The plan to be instituted under profitsharing proposal
#2 shall distribute applicable percentages of profits to
all bargaining unit members meeting eligibility require-
ments, with individual payments pro-rated based upon
annual hours worked. This profitsharing proposal has
the added feature of an added increase to base wage
rates in the amount of 1.0 to 1.5 percent in the event
a certain profit level is achieved. If the Company loses
money in the year the increase goes into effect, the in-
crease will be revoked for the following year. If the
Company subsequently makes money over the appro-
priate threshold, the increase will be reinstated. There
shall be only one such increase to base rates, or revoca-
tion, or reinstatement, during the term of the contract.
Attached to the actual text of profit-sharing plans were ap-
pendices which attempted to address, in specific quantifiable
terms, just what would be meant by profitability, instead of
leaving that term to a generic definition.
As to profit-sharing plan No. 1 (PSP 1), relating to the 7-
percent wage reduction, the contract proposal provided that
concession payments running from July 8, 1985, to the effec-
tive date of the contract would end after the full concession
amount had been paid. These amounts would be repaid in ac-
cordance with a sliding scale of amounts, as follows:
Levels of
Profit Before
Taxes
Percent of Profit Sharing
Amount of Profit Shar-
ing to be Devoted to
Repayment
$250,000 2 $5,000
500,000 2 10,000
750,000 4 30,000
1,000,000 4 40,000
1,500,000 4.5 67,500
2,000,000 5 100,000
2,500,000 5 125,000
2,750,000 5 137,500
3,000,000 5 150,000
higher 5 150,000
With regard to profit-sharing plan No. 2, the company pro-
posal provided that payments set forth in the schedule would
take place in lieu of the 7-percent payback and COLA from
June 25, 1988, going forward. The sliding scale of amounts
to be devoted to this aspect of the Respondent’s concession
agreement obligation would be as follows:
1262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Repeated testimony in the record refers to the union ratification
meeting as having taken place late in February. The letter to the
Company from Union President Thayer recites that the meeting took
place on March 23. It is not necessary to resolve this conflict as to
time. It is clear that, whenever the membership meeting took place,
union members refused to ratify or even consider the disputed ele-
ments of the Respondent’s proposal that are still at issue between
the parties.
Level of
Profits
Percent of
Wage In-
crease
Wage Base
$3.400 Mil-
lion
Percentage
Amount of
Profit Shar-
ing to be
Devoted to
this Obliga-
tion
$250,000 0 0
500,000 0
750,000 0
1,000,000 1 $34,000 2 $20,000
1,500,000 1.5 51,000 3 45,000
2,000,000 1.5 51,000 4 80,000
2,500,000 1.5 51,000 4.5 112,000
2,750,000 1.5 51,000 4.5 123,750
3,000,000 1.5 51,000 5.0 150,000
higher 1.5 5
The Respondent admitted that, under its proposal, its obliga-
tion to make either repayments or ongoing payments was
wholly contingent upon profitability and that, if the Company
did not make any profit, it would be under no obligation to
make any repayments of sums due and owing under the 1986
concession agreement.
Another bone of contention was included in the Com-
pany’s final offer. This was a provision, also found in pre-
vious offers, which read: ‘‘The contract shall supersede all
rights and obligations set forth under the 1985–88 agreement,
including the 1986 modifications to that agreement, as per-
mitted) by law.’’
This proposal was communicated to union representatives
on or about January 2, 1990. On January 12, 1990, copies
of the proposal were also sent to striking employees with the
following cover letter, signed H. H. Dietz, chief negotiator.
It read:
To: All Union Members
R. E. Dietz Company first met with your negotiating
committee on June 15, 1988. Since then there have
been 71 more negotiating sessions. On December 22,
1989, your company notified Local #33 UAW that it
was making its last and final offer, and expressed its
hope that the membership would be given the oppor-
tunity to vote on this offer.
I encourage you to read the enclosed material very
carefully. This mailing includes a summary of the items
contained in the company’s last offer as well as a copy
of all of the mutually agreed to new contract language
and copies of the two profit-sharing plans which are
part of the offer.
You have been on strike/lockout now for one year.
How much longer you remain out will be determined
by you. Whether or not you vote on this offer, and
whether or not this offer will be accepted or rejected,
I do not know. I do know, however, that this is the
company’s final offer and will not be improved upon
in the future. Please consider all of this information be-
fore making any decisions regarding this company
offer.
Union and company negotiators met twice in January
1990—on the 18th and again on the 31st—to discuss the
Company’s final offer. At this first meeting union negotiators
expressed their strong disapproval of the Company’s action
in forwarding the above-quoted letter and attachments to all
union members, accusing company negotiators of direct deal-
ing with employees and bypassing the bargaining agent. The
Union also accused the Respondent of violating the labor
laws by including nonmandatory with mandatory subjects of
bargaining in its final offer. The Respondent denied this
charge.
The Company wanted to explain the provisions of the final
offer to union negotiators and to give them an opportunity
to negotiate technical language to implement some items in
the final written offer. These items had not been reduced to
writing and some attention was given to formulating these
concepts into final form. William Dotterer, the Company’s
personnel director, characterized the half-day meeting on Jan-
uary 18 as something which resembled an open forum. Dur-
ing this ‘‘open forum,’’ the parties initialed some contract
items on which agreement had been reached. The Union pro-
posed that the parties sign off on the bulk of the agreement
and defer any negotiations on profit-sharing proposals relat-
ing to the concession agreement and the outstanding arbitra-
tion award. Company negotiators rejected this idea. There
was also some negotiation of a successor clause but no
agreement on this point.
On or about February 27,6 the Union held a membership
meeting for the purpose of voting on the Company’s final
offer. The membership accepted the terms of the offer, ex-
cept for the ‘‘superseding clause’’ and the profit-sharing pro-
posals (PSP Nos. 1 and 2). In fact, these provisions were not
even submitted for ratification since there was general agree-
ment, both among the membership and the union negotiators,
that such issues were not proper items for a final offer or
a contract.
The parties met again on March 20. At this time, there
was renewed discussion about the profit-sharing proposals.
Company negotiators presented the union contract language
designed to iron out some technical corrections which the
Union had noted in the profit-sharing proposals. There was
still no agreement on PSP Nos. 1 or 2 or on the so-called
superseding language. The parties did discuss the mechanics
of making payments to individuals who had been on strike
and how payments to beneficiaries of deceased strikers
would be handled.
On March 26, Sandra Thayer, president of Local 33 and
one of its principal negotiators, wrote the following letter to
Hugh Dietz:
At a meeting held on Friday, the 23rd of March,
1990, Local 33 UAW membership voted to approve the
three-year agreement that would be the successor con-
tract to replace the three (3) year agreement of 85–88
which expired June 26, 1988.
1263R. E. DIETZ CO.
The Union will expect the union workers to be put
back to work and the lockout called off three days from
the receipt of this letter.
Also, please set up a time and date for the signing
of the contract as soon as possible.
Inasmuch as the ratification did not include the superseding
language or approval of the profit-sharing plans, the Re-
spondent did not end the lockout. It is still in progress and
no contract document has ever been signed.
In the late winter and spring of 1990, a collateral matter
entered the picture and became a predominant concern in
continued discussions between the parties. At that time the
Respondent sold the bulk of its assets to the Federal Mogul
Corporation, a Michigan company which also specializes in
manufacturing automobile equipment. The Respondent de-
rived a large lump-sum payment from the purchaser which
permitted its books to reflect an unusual one-quarter profit.
The resultant effect of selling off the bulk of its assets was
to reduce the Respondent’s operations to a fraction of what
they had previously been. The sale also had a dramatic and
negative impact on the Respondent’s ability to become prof-
itable on an ongoing basis. In order to preserve a fund out
of which concessionary wage reductions and COLA deferrals
could be repaid, the Union filed suit on April 3, 1990, in
United States district court against both the Respondent and
Federal Mogul Corporation, asserting a claim for unpaid
wage concessions and unpaid COLA payments arising out of
the 1986 concession agreements and the arbitrator’s award.
The suit sought to apply the purchase money from the asset
sale to the repayment of the debt. The suit is still pending.
(Auto Workers v. R. E. Dietz Co. and Federal Mogul Corp.,
U.S. District Court, Case No. 90–CV–366).
C. The Final Negotiating Sessions
Within the 10(b) period, which became operative on
March 21, 1990, three negotiating sessions took place—May
10, May 24, and August 24, 1990. At the May 10 meeting,
the Union informed company negotiators that the member-
ship had ratified the Company’s final offer, except for the
‘‘superseding language’’ and PSP Nos. 1 and 2. It insisted
that the ‘‘superseding language’’ be removed from the com-
pany proposal. The Company refused. The Company also in-
sisted that PSP Nos. 1 and 2 be included in the final con-
tract, to which the Union frequently responded that these
proposals were nonmandatory subjects of bargaining and
hence inappropriate for inclusion in a contract. Union nego-
tiators asked several times if they would actually see any
money under the Respondent’s profit-sharing proposals and
the company attorney replied that they would not. Union ne-
gotiators asked rhetorically how they could sensibly discuss
the specifics of a profit-sharing proposal when they did not
know how many employees would be left in the plant to
benefit from it.
The Union’s position was that the Company should sign
off on the principal portions of the contract so that locked-
out employees could return to work. Dietz told others that
the replacements currently being employed were only tem-
porary but that the temporary replacements would become
permanent if the Union did not soon agree to the Company’s
entire package, whereupon his attorney spoke up to con-
tradict him on that point. The Union suggested that the pay-
back provisions be deferred to a later date, at which time an
auditor could check the Company’s books to see if it had be-
come a profitable enterprise and, in the event of a dispute
between company and union auditors, a neutral auditor could
be employed to resolve the dispute. The Company did not
approve of this suggestion. However, it did express interest
in a union proposal that the newly filed U.S. district court
suit be withdrawn. However, Respondent’s negotiators tried
to make it clear that the Company was not insisting that the
suit be withdrawn as a condition of agreement on a contract.
The Union’s reply was that the suit could not be withdrawn
without consultation with others who were not at the bar-
gaining table. Company representatives wanted to make sure
that the no-strike no-lockout provisions of the proposed con-
tract were broad enough to cover any future negotiations
over profit sharing and payback of concessions. The Union
agreed that it would cover any such talks. As the session
came to an end, Dietz said he wanted to examine the union
offer and suggested that Mrs. Thayer put union proposals in
writing so the Company could consider others in advance of
another bargaining session, which was set for May 24.
At Dietz’ suggestion, Mrs. Thayer wrote him the following
letter, dated May 21:
This Union made a proposal to the R. E. Dietz Com-
pany on 5/10/90 dealing with the arbitration/concession
agreement of 1986. The Company asked for the pro-
posal to be placed in writing with other requests.
The Union has structured this letter and hopes it an-
swers all your questions to our proposal and position.
The proposal is as follows:
After the union auditor has looked over the Com-
pany’s books in the first quarter of 1991, UAW Local
33 and the Company will sit down and discuss the fi-
nancial condition of the Company to establish the res-
toration and implementation of preconcession wages
(7% and $1.20 COLA) or some portion thereof if pos-
sible. If no profits are available, then there will be a
one (1) year anniversary date for each year thereafter.
It is agreed this agreement will stay in force and effect
until the preconcession wages are re-established.
It will be the responsibility of both parties to be pre-
pared at said meeting and there will be no extension on
anniversary date.
To resolve the arbitration order, paragraph 3, the
Union will accept Company’s proposal of money and
percentage levels on Company’s proposal of
profitsharing plan I contingent on Company’s accepting
Union’s 5/10/90 proposal of preconcession wages (7%
and $1.20 COLA). The Union will also accept language
of profitsharing plan I with certain modifications that
we have enclosed. All other agreements and language
agreed to dealing with the 1986 concession agreement
shall stay in effect and be placed in the contract, unless
otherwise mutually agreed to or disposed of by Com-
pany and UAW Local 33 with appropriate signatures of
both parties at this time.
Your question about Article XXVIII (green book,
strikes) union proposal of 5/10/90: it is the Union’s po-
sition that the Union could not strike on this issue sole-
ly but only dealing with this arbitration.
1264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The Board may not remedy an unfair labor practice which oc-
curred 6 months before the filing of a charge. However, it may look
to pre-10(b) conduct and events insofar as they ‘‘lay bare a putative
unfair labor practice.’’ Machinists Local 1424 (Bryan Mfg. Co.) v.
NLRB, 362 U.S. 411, 413 (1960).
The 5/10/90 proposal would have no bearing on law-
suit, as lawsuit is for a different reason, nor would it
have any impact on any present board charge. The
Union will leave the legal semantics of settlement or
disposal of current legal action to lawyer T. Giblin.
On May 24, the parties met for an hour and a half but still
did not resolve their differences. The Union asked the Re-
spondent how many jobs were still left in the plant. Their
concern was that there might not be enough jobs left in the
plant to permit the Company ever again to be profitable and
to meet the threshold requirements of the profit-sharing pay-
back proposals. They received no answer. When the Com-
pany learned that the Union was not going to withdraw the
pending district court suit, it declined to consider any of the
other proposals in Mrs. Thayer’s letter regarding deferral of
negotiations on profit sharing. When the Company rejected
the Union’s written offer, the Union requested that the rejec-
tion be made in writing. The Company said that it would do
so, but if this was done, their rejection letter was not placed
in evidence. When the parties broke, they agreed to meet
again but no date was set.
The final meeting between the parties took place on Au-
gust 24, 1990. The Union opened the discussion by saying
that they did not come to the table to talk about the lawsuit
but had a counterproposal to make. They said they would
agree to PSP No. 1, relating to the payback of the 7-percent
pay reduction, if the Company would defer discussion of
PSP No. 2, relating to the COLA, until January 1992 and at
6-month intervals thereafter. The Respondent rejected this
idea, saying that they wanted to end up with no liability
under the 1986 concession agreement apart from the provi-
sions of its final offer. They also asserted that, if the Com-
pany never again became profitable, the employees involved
in the 1986 concession agreement would never be repaid.
Company representatives also charged that the Union had
made its deferral proposal previously and it had been pre-
viously rejected. The Respondent also inquired if the coun-
terproposal included dropping the lawsuit and union rep-
resentatives replied that it did not. After taking a caucus,
company representatives returned to the table, at which time
Dietz told union negotiators that the parties were at impasse
and had been at impasse for quite some time. This was the
last meeting of the parties to discuss contract terms. The law-
suit remains in effect and the lockout continues.
II. ANALYSIS AND CONCLUSIONS
Two basic doctrines of the law of good-faith bargaining
have a functional interplay in deciding the rights and liabil-
ities of the parties to this litigation. In NLRB v. Borg-Warner
Corp., 356 U.S. 342 (1958), the Supreme Court distinguished
between mandatory and nonmandatory or permissive subjects
of collective bargaining. It held that parties to contract nego-
tiations could insist to impasse over mandatory subjects.
With regard to nonmandatory subjects, while being free to
discuss them, neither party may condition an overall contract
to agreement to such items by the other party. Insisting to
impasse over a nonmandatory subject of bargaining con-
stitutes a violation of the duty to bargain in good faith set
forth in Section 8(d) of the Act. As a result of this decision,
a host of subsequent cases have arisen to adjudicate just what
is or is not a mandatory subject of collective bargaining.
Seven years thereafter, the Supreme Court held that an
employer engaged in collective bargaining was free to lock
out its employees, at least temporarily and after impasse, in
support of a legitimate negotiating position regarding a man-
datory subject of bargaining. American Ship Building Co. v.
NLRB, 380 U.S. 300 (1965). However, proof of an illegal
motive on the part of an employer who has resorted to the
use of a lockout may convert this otherwise permissible eco-
nomic weapon into a violation of Section 8(a)(5) of the Act.
NLRB v. Brown Food Store, 380 U.S. 278 (1965); Teamsters
(Bekins Movers), 224 NLRB 356 (1976). In this case, the
General Counsel levels no attack on the Respondent’s initial
lockout, which occurred in June 1989, and indeed he cannot,
since this event occurred far beyond the period of limitations.
However, he contends that the ongoing lockout was con-
verted into an unfair labor practice lockout on August 24,
1990, about a month before the charge was filed, because,
on that date, the Respondent illegally bargained to impasse
over nonmandatory or permissive subjects of bargaining,
namely, the ‘‘superseding language’’ in the contract duration
proposal and the PSP Nos. 1 and 2 proposals which were
also contained in the final offer. Hence, the Board must de-
termine if the disputed elements of that offer are mandatory
or nonmandatory and if an insistence to impasse occurred
within the 10(b) period.7
The 1986 concession agreement, which lies at the root of
this dispute, was a midterm modification of an existing col-
lective-bargaining agreement. The Union did not have to
agree to that modification. Indeed, it did not even have to
bargain about it, since a deal had been struck with the Re-
spondent in 1985 and it was still in force and effect. The
Union was under no obligation to change it in the middle of
the contract term. All of the concessions made in those nego-
tiations were the result of negotiating over nonmandatory
subjects of bargaining. What followed from those conces-
sions necessarily takes on the same character. The fact that
some of these topics became part of future negotiations along
with items which were clearly mandatory in nature does not
change their character. Chesapeake Plywood, 294 NLRB 201
(1989).
To interpret and give effect to the oral understandings
reached by the parties in 1986, the Union sought and ob-
tained an arbitration award. This arbitration award interpreted
and applied the terms of nonmandatory subjects of bar-
gaining. It drew its vitality from the fact that the parties had
entered what amounted to a collateral agreement, dehors the
terms of the major agreement. That agreement was enforced
by the decree of a civil court in a state arbitration confirma-
tion action. The result of that award was a determination that
the Respondent was indebted to its Employers for the
amounts they had temporarily excused the Respondent from
paying them under the terms of the contract, even though the
exact amounts of those debts was yet to be calculated.
The award in question was a most peculiar one indeed.
Normally, an arbitrator is limited to interpreting and applying
the disputed terms of an agreement which the parties before
1265R. E. DIETZ CO.
8 NLRB v. H. K. Porter Co., 397 U.S. 99 (1970).
9 The alternative facing the arbitrator, and the court on appeal, was
to declare the concession agreement null and void, thereby causing
the terms of the original agreement to spring immediately back into
place and giving rise to an immediate judgment on the part of the
Respondent for the difference between wages and benefits due under
the 1985–1988 contract and what was actually paid to bargaining
unit employees. Perhaps the arbitrator and the judge felt that this
was a more unpalatable alternative than the one they chose.
10 Other technical arguments advanced by the Respondent require
only scant attention. The fact that the Union filed, and the Regional
Office dismissed, other charges relating to bargaining between these
parties does not in any way affect the right of the Board to hear and
determine the dispute raised by the complaint herein. An administra-
tive dismissal of a charge is not an adjudication and does not bar
future proceedings which are otherwise litigable. Moreover, laches
does not prevent the General Counsel from proceeding with this
complaint. This complaint was issued to vindicate a public right, not
a private right, so any actions of the Charging Party can in no way
constitute laches, since laches does not run against the Government.
him have actually concluded. He has no right or authority to
go outside the boundaries of the agreement which vests him
with jurisdiction to proceed. He has no authority to tell the
parties to finish negotiating a contract which is still incom-
plete. He cannot compel agreement where there is none. In
this case the reviewing court noted that
The parties entered into a partial, incomplete agree-
ment whereby essential elements needed to be com-
pleted so that the parties may have a completed agree-
ment.
This reference was to the failure of the parties to agree on
the meaning of the term ‘‘profitable.’’ The failure of parties
to agree on an essential term of an agreement normally ren-
ders a contract void, and a void contract is not arbitrable or
enforceable in any kind of tribunal. This deficiency did not
deter the arbitrator or the New York court from finding the
concession agreement valid and interpreting some of its
terms. These tribunals necessarily left one major string dan-
gling and it is still dangling. To complete the agreement, the
arbitrator and the court ordered the parties to negotiate the
missing element which rendered the agreement incomplete.
An arbitration award directing parties to negotiate an essen-
tial term of the contract under arbitration is something of an
oxymoron. However, a remedy, if any, for this peculiarity
lies with the arbitrator and the civil court, not the Board. The
parties have not complied successfully with this mandate in
the award, but they spent nearly 75 negotiating sessions try-
ing to do so. The Board cannot compel agreement8 and nei-
ther may an arbitrator. In the absence of any agreement be-
tween the parties as to the meaning of a disputed term, this
litigation has arisen.9
The Respondent argues that, because the arbitrator directed
the parties to negotiate the meaning of the term ‘‘profitable’’
and additional payback provisions which follow from such a
definition, there now exists a mandatory subject of bar-
gaining enforceable by the Board under the Act. In its view,
the arbitration award, by its terms, has transformed a non-
mandatory subject of bargaining into a mandatory one—an
item on which the Respondent may now insist to impasse
under the provisions of Section 8(d). This is simply not so.
Obligations which have arisen under the arbitration award, as
confirmed, are quite independent of any obligation imposed
by the Act and enforceable by the Board. Having agreed to
arbitrate the concession agreement and having received an
award, the parties must look to the forums which provided
these determinations for their implementation, not to the
Board. This arbitration award would be enforceable, if at all,
even if Section 8(d) of the Act did not exist. Hence its provi-
sions neither add to nor subtract from the rights and liabil-
ities of the parties under the Act.10
The Respondent’s basic argument in support of its claim
that all items in its final offer were mandatory in character
fuzzes the distinction between underlying and continuing li-
ability (or debt) and what method should be available for re-
paying that debt. The arbitration award, having been con-
firmed by a civil court, is an adjudication which states that
the Respondent owes its locked out employees a debt
amounting to the difference in preconcession wages and
COLA and what they received between July 1986 before
going out on strike. While a sum certain was not awarded,
the Respondent admitted that, if its records were properly
kept, a sum certain could be computed as to what would be
due and owing to employees under the award, at least from
the date of the concession agreement in July 1986 and the
date of the strike in January 1989. Since the award was an
adjudication, it is res judicata, and it is not permissible for
the Board to go behind that adjudication to permit relitiga-
tion of the issues therein. For that reason, offers of proof by
the Respondent aimed at doing so were rejected.
In its brief, the Respondent described PSP # 1 as follows:
As indicated in the final offer itself and stated at the
hearing, PSP # 1 functioned as the vehicle for ‘‘pay-
back’’ of the 1986 concessions. PSP # 1 allocated bene-
fits to eligible employees on a pro-rata basis according
to the size of each employee’s ‘‘ concession account.’’
Individual concession accounts are established on the
basis of the amounts each employee ‘‘gave up’’ during
concessions, i.e. 7% of the employee’s pre-concession
base rate plus $1.20 COLA, multiplied by all hours
worked by the employee during concessions. The em-
ployee’s account is drawn down as profitsharing bene-
fits are paid. Additional provisions are set forth in the
plan governing such matters as the time of payment,
computation of hours, determination of beneficiaries,
audits, and arbitrations, id, none of which are at issue
in this proceeding.
The profit-sharing plans in the final offer did a great deal
more than merely provide a vehicle for repayment. They ex-
cluded from participation any employee in the bargaining
unit hired after July, 1986, thus wiping out any debt owed
to such persons. Of even greater importance, the plans estab-
lished an exclusive vehicle for repayment, thereby wiping out
any remedy for collection of the debt which might be avail-
able in a civil court. In so doing, it preserved from attach-
ment the proceeds the money paid by Federal Mogul for the
purchase of most of the Respondent’s assets. The ‘‘super-
seding language’’ in the contract duration clause of the Re-
1266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent’s proposal stated categorically that ‘‘the contract
shall supersede all rights and obligations set forth under the
1985–1988 agreement, including the 1986 modifications to
that agreement, as permitted by law.’’ Hence any basis for
the civil suit now pending in U.S. district court would be
nullified by a merger of the outstanding liability of the Re-
spondent to its employees under the concession agreement
into the terms of the proposed contract and its exclusive con-
tracted remedy.
The Respondent has already reduced the size of its plant
and its potential for profitability to a minimum by the sale
of most of its assets while it was insisting to impasse that
any profits from its few remaining assets be the sole and ex-
clusive basis for discharging its responsibility—no profits, no
repayment. Taken together with the sale of these assets, their
proposal to the Union throughout negotiations amounted to
little more than an artfully concocted swindle aimed at fore-
closing the possibility that any losses in wages due to con-
cessions would ever be recouped. It is little wonder that the
Union refused even to submit these proposals to a ratification
vote by its locked out membership.
In Harvstone Mfg. Co., 272 NLRB 939 (1984), enf. denied
on irrelevant grounds 785 F.2d 570 (7th Cir. 1986), the
Board held that the term ‘‘wages, hours, and terms and con-
ditions of employment,’’ as used in Section 8(d) of the Act,
refers only to future wages and conditions, not to past wages
which have already accrued and which are due and owing.
The latter sums are debts arising of contracts already con-
cluded, so any effort to go back and renegotiate settled deals
is a nonmandatory subject of bargaining. Tested by this cri-
teria, the entirety of PSP No. 1 and the ‘‘superseding lan-
guage,’’ both of which would in effect wipe out the provi-
sions of the concession agreement, refer to accrued wages
under previous agreements. Any proposal to wipe out liabil-
ity for these sums due and owing—or to impair the collec-
tion machinery generally available at law to collect these
sums—does not constitute future wages, hours, and terms or
conditions of employment. Hence, they are nonmandatory
subjects of bargaining, even when lumped in with other pro-
posals which are mandatory in nature.
With respect to PSP No. 2, future COLAs to be paid after
the effective date of the agreement would, under the
Harvstone criteria, be mandatory subjects. However, PSP No.
2 deals with more than COLAs to be paid at some subse-
quent time. The sliding scale of profitability set forth in PSP
No. 2, governing when, if ever, the Company would be suffi-
ciently profitable to resume paying COLAs under the new
contract, also controls the cutoff date when liability for the
payment of past COLAs and the 7-percent reduction due
under the 1985–1988 contract (and suspended by the conces-
sion agreement) would cease. This is arguably but not clearly
a mandatory subject of bargaining, even though it terminates
a previously bargained agreement, since it substitutes in lieu
thereof a new agreement. However, in the Respondent’s bar-
gaining posture, PSP No. 2 was inextricably linked to a
clearly nonmandatory subject. When Dietz told union nego-
tiators on August 24, 1990, that the parties were at impasse
and had been at impasse for some time, he was referring to
the ‘‘superseding language,’’ PSP Nos. 1 and 2 as a package,
a package which remained intact and unseverable since the
Respondent’s final offer was made in January 1990, and
even before. Hence, the impasse which was declared on Au-
gust 24, 1990, arose from an insistence by the Respondent
which conditioned its overall agreement to an agreement by
the Union to nonmandatory subject of bargaining.
The last string in the Respondent’s bow is that it did not
bargain to impasse during the period limitations. Hence, the
impasse, which everyone agrees is now in effect, began be-
fore the 10(b) period and what transpired thereafter was
nothing new. From this premise the Respondent argues that
it should not be charged in the complaint for conduct which
the Board’s processes cannot reach, even though that conduct
may have continued into a period of time which would sub-
ject it to liability under the Act. In short, it urges the Board
to reject a ‘‘continuing violation’’ theory which it attributes
to the General Counsel. To buttress this contention, the Re-
spondent argues that its final offer, transmitted to union ne-
gotiators on January 2, 1990, and sent out to bargaining unit
members on January 12 of the same year, was an ‘‘impasse
offer’’ and that the impasse began then, if not before that
date, inasmuch as the Respondent has not varied its firm and
final offer since January 2, adding that its offer contained
items about which the Respondent had not in fact altered its
position even long before that date.
The Respondent’s contention in this regard contains sev-
eral errors, both legal and factual. The seminal case on deter-
mining when and whether an impasse in bargaining has aris-
en in Taft Broadcasting Co., 163 NLRB 475 at 478 (1967),
in which the Board stated:
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of the
parties in negotiations, the length of the negotiations,
the importance of the issue or issues as to which there
is disagreement, the contemporaneous understanding of
the parties as to the state of negotiations, are all rel-
evant factors to be considered in deciding whether an
impasse in bargaining existed.
It takes two to make an impasse. The fact that one side
has never varied the terms of some or all of its offer does
not, in and of itself, create an impasse in bargaining. The
phrase used by the Respondent—‘‘impasse offer’’—is a con-
tradiction in terms. An impasse does not arise until the ‘‘par-
ties . . . have [had] adequate opportunity to have exhausted
all reasonable expectation of compromise.’’ D.C. Liquor
Wholesalers, 292 NLRB 1234 (1989). In this case, the Re-
spondent claims that there has always been an impasse, while
the General Counsel says that there might have been an im-
passe at one time but that any impasse had been broken and
was renewed on August 24, 1990, at which time the Re-
spondent’s renewed insistence to impasse over nonmandatory
subjects amounted to an unfair labor practice occurring with
the 10(b) period. Neither theory of the case is wholly sup-
ported by the facts. In resolving this case, the Board is not
limited by the theory of the case advanced by either party
so long as its determination falls within issues framed by the
complaint and answer.
When the Respondent submitted its final offer to the
Union on January 2, there was agreement on all of the sub-
stantive items of a new collective-bargaining agreement, ex-
cept for the three issues discussed above—the duration clause
containing the ‘‘superseding language’’ and a new, quantified
PSP Nos. 1 and 2. Far from being at impasse at this point
1267R. E. DIETZ CO.
11 The Respondent tried to make it plain that they were not condi-
tioning a final contract on withdrawal of the lawsuit, since with-
drawal of the lawsuit would, in all probability, be a nonmandatory
subject of bargaining. However, they were conditioning a final con-
tract upon union agreement to various terms which, if accepted,
would require the U.S. district court to dismiss the suit upon the Re-
spondent’s application, since the basis of the suit would have been
settled by agreement over ‘‘superseding language’’ and PSP Nos. 1
and 2. Their point in this regard is a distinction without a difference.
in time, the parties were perilously close to a contract. They
had bargained for more than 70 sessions and had reached a
meeting of the minds on every contract issue except the sta-
tus of the outstanding debt owed by the Respondent to its
employees arising out of the 1986 concession agreement and
the appropriate method for repaying that debt. Indeed, at the
two meetings held by the parties in January 1990, there were
ongoing discussions concerning contract language which still
had to be put in place before these matters could be final-
ized, and additional agreement was, in fact, reached during
those meetings regarding at least some of these language
problems. This is not a state of facts which defines an im-
passe.
The Respondent’s final offer—its so-called impasse
offer—was not submitted to the membership of the Union for
ratification until either late February or sometime in March.
Until that event occurred, it is idle to suggest the existence
of an impasse since there was no response by the Union to
the Respondent’s firm and final proposal. Since the Respond-
ent was bound to deal with union representatives, not bar-
gaining unit members, and was not fully informed as to the
nature and results of the ratification vote until May 10, no
impasse could have arisen until at least that date. Before that
meeting, the union president had written the Company, had
informed it that their contract offer had been ratified, and
had called on the Company to sign the contract and end the
lockout. This statement was not wholly correct and the in-
quiries by company representatives on May 10 indicated that
they suspected that it was not correct.
Moreover, between the ratification vote in February or
March and the May 10 meeting, a new element had entered
the bargaining equation. The Union filed a collection suit in
Federal court on April 3 which, if successful, will make
available to unit employees the proceeds of an asset sale to
Federal Mogul for the payment of the ongoing liability of the
Company for its mounting debt arising out of the concession
agreement. This turn of events plainly bothered company ne-
gotiators, who were looking to limit their total liability to the
terms of the contract and to future profits which, in all prob-
ability, would never materialize. For that reason, they looked
with interest on a suggestion on the part of union negotiators
that the lawsuit might possibly be withdrawn in exchange for
a tradeoff from the Respondent, and asked union negotiators
to put their proposal in writing in advance of the next meet-
ing, then set for May 24. Such fluidity and the demonstrated
desire, at least on the part of the Union, to eliminate all out-
standing roadblocks to a complete understanding and com-
pletely negates the possibility of an impasse in bargaining as
of May 10.11
Both the May 21 letter from the Union and their statement
at the May 24 meeting indicated that they were not in a posi-
tion to withdraw the suit, whereupon company negotiators
stated flatly that they were not disposed to retreat from any
of the disputed proposals in their final contract offer. Argu-
ably, an impasse might have arisen at this point, well within
the 10(b) period, but it certainly had not arisen before that
time. Even in the face of this development, union negotiators
were still trying to give bargaining process one more shot
and company negotiators still appeared willing to listen and
to schedule one more meeting to discuss what ultimately be-
came the Union’s final offer. The Union then announced that
it was willing to accept the company proposal, then on the
table, relating to PSP No. 1 if the Company would agree to
defer further discussion until 1992 on PSP No. 2, execute the
balance of the contract, and end the lockout. The proposal
was a contingent one and the Company rejected it. Union ne-
gotiators then asked the Company to put its rejection in writ-
ing. They agreed to do so but, as far as the record in this
case reflects, they did not. However, company negotiators
did agree to another meeting, without specifying a date. That
meeting ultimately occurred on August 24.
At the August 24 meeting, the Union renewed its contin-
gent proposal concerning PSP Nos. 1 and 2. After lengthy
caucuses by both sides, the Company again rejected the
counteroffer, saying that it wanted to end up with a contract
under which the Respondent would have no liability for re-
payment of concessions apart from contract profit-sharing
provisions, i.e., PSP Nos. 1 and 2. If there were no profits
in the future, there would be no repayments. It was at that
point that Dietz declared that the parties were at impasse and
had been at impasse for a long time. Thereafter, the parties
met no more. I conclude that, at this point, the Respondent
bargained to impasse with the Union over the ‘‘superseding
language’’ in the contract duration clause and on both PSP
Nos. 1 and 2. Since the principal thrust of this impasse was
directed at nonmandatory subjects of bargaining, by insisting
on their inclusion as a condition of entering into a contract,
the Respondent bargained in bad faith in violation of Section
8(a)(1) and (5) of the Act. This act on its part converted a
lawful lockout, then in existence, into an unlawfully moti-
vated one. Since the lockout has continued to date, the em-
ployees who have still been deprived of employment became
discriminatees as of that date and the refusal of the Respond-
ent to reinstate them became, at that point, another unfair
labor practice which violated Section 8(a)(1) and (3) of the
Act.
CONCLUSIONS OF LAW
1. R. E. Dietz Company is now and at all times material
has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, Local
33 (AFL–CIO) is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees employed
by the Respondent at its Syracuse, New York facility, ex-
cluding all professional employees, office and plant clerical
employees, inspectors, watchmen, guards, and supervisors, as
defined in the Act, constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times material, the Union has been the exclusive
collective-bargaining representative of all the employees in
the unit found appropriate in Conclusion of Law 3 for the
1268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 F. W. Woolworth Co., 90 NLRB 289 (1950).
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
14 The Respondent has insisted throughout these proceedings that
all employees hired during the lockout were temporary.
15 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
purpose of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. By bargaining to impasse with the Union over non-
mandatory subjects of bargaining, the Respondent violated
Section 8(a)(5) of the Act.
6. By the acts and conduct set forth above in Conclusion
of Law 5, the Respondent on August 24, 1990, converted an
ongoing lockout into an unfair labor practice lockout.
7. By failing and refusing to reinstate the employees re-
ferred to above in Conclusion of Law 3, to their former or
substantially equivalent positions, the Respondent, on and
after August 24, 1990, has violated Section 8(a)(3) of the
Act.
8. The aforesaid unfair labor practice have a close, inti-
mate, and adverse effect on the free flow of commerce with-
in the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent herein has engaged in
certain unfair labor practices, I will recommend that it be re-
quired to cease and desist therefrom and to take certain af-
firmative actions designed to effectuate the purposes and
policies of the Act. The recommended Order will request that
the Board order the Respondent to offer to all employees
whom it locked out in June, 1989, full and immediate rein-
statement to their former or substantially equivalent posi-
tions, and that it make them whole for any loss of earnings
or benefits which they may have sustained on and after Au-
gust 24, 1990, by reason of the discriminations practiced
against them, in accordance with the Woolworth formula,12
with interest at the rate prescribed by the Tax Reform Act
of 1986 for the overpayment and underpayment of income
tax. New Horizons for the Retarded, 283 NLRB 1173 (1987).
I will also recommend that the Respondent be required to
post the usual notice, advising its employees of their rights
and of the results in this case.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, R. E. Dietz Company, Syracuse, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Bargaining to impasse over nonmandatory subjects of
bargaining.
(b) Otherwise refusing to bargain collectively in good faith
with International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, Local 3
(AFL–CIO) as the exclusive collective-bargaining representa-
tive of all the Respondent’s production and maintenance em-
ployees employed at its Syracuse, New York facility, exclud-
ing all professional employees, office and plant clerical em-
ployees, inspectors, watchmen, guards, and supervisors as de-
fined in the Act.
(c) Discouraging membership in or activities on behalf of
International Union, United Automobile, Aerospace and Ag-
ricultural Implement Workers of America, UAW, Local 3
(AFL–CIO) or any other labor organization by locking out
employees in support of an illegal bargaining position or oth-
erwise discriminating against them in their hire or tenure.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain collectively in good faith with
International Union, United Automobile, Aerospace and Ag-
ricultural Implement Workers of America, UAW, Local 3
(AFL–CIO) as the exclusive collective-bargaining representa-
tive of all production and maintenance employees employed
by the Respondent at its Syracuse, New York facility, ex-
cluding all professional employees, office and plant clerical
employees, inspectors, watchmen, guards, and supervisors as
defined in the Act.
(b) Offer to all employees whom it locked out in June,
1989, full and immediate reinstatement to their former or
substantially equivalent employment without prejudice to
their seniority or to other rights previously enjoyed dis-
charging, if necessary, those who have been hired to take
their places,14 and make whole all locked out employees for
any loss of pay or benefits suffered by them by reason of
the discriminations found herein, in the manner described in
the remedy section of this decision.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, 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 the Respondent’s Syracuse, New York plants
copies of the attached notice marked ‘‘Appendix.’’15 Copies
of the notice, on forms provided by the Regional Director for
Region 3, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
1269R. E. DIETZ CO.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT bargain to impasse over nonmandatory sub-
jects of bargaining.
WE WILL NOT otherwise refuse to bargain collectively in
good faith with International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America,
UAW, Local 3 (AFL–CIO) as the exclusive collective-bar-
gaining representative of all our production and maintenance
employees employed at our Syracuse, New York plants, ex-
cluding all professional employees, office and plant clerical
employees, inspectors, watchmen, guards, and supervisors as
defined in the Act.
WE WILL NOT discourage membership in or activities on
behalf of the above-stated Union or any other labor organiza-
tion by locking out our employees in support of illegal bar-
gaining positions or otherwise discriminate against them in
their hire or tenure.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain collectively in good faith
with the above-stated Union as the collective-bargaining rep-
resentative of our production and maintenance employees
employed at our Syracuse, New York plants, excluding all
professional employees, office and plant clerical employees,
inspectors, watchmen, guards, and supervisors as defined in
the Act.
WE WILL offer to all employees whom we locked out in
June 1989 full and immediate reinstatement to their former
or substantially equivalent employment, without prejudice to
their seniority or to other rights previously enjoyed, dis-
charging, if necessary, those who have been hired to take
their places and WE WILL make whole all locked out employ-
ees for any loss of pay or benefits suffered by them on and
after August 24, 1990, by reason of the discriminations
found herein, with interest.
R. E. DIETZ COMPANY