Skrl Die Casting, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1041 (N.L.R.B. 1979)

SKRL DIE CASTING. INC.
Skrl Die Casting, Inc. and International Union,
United Automobile, Aerospace, and Agricultural
Implement Workers of America, Local 1260, UAW.
Cases 8-CA-10927 and 8 CA-11264
September 28, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On May 31, 1979, Administrative Law Judge John
C. Miller issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
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, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order as modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that Respondent, Skrl Die
Casting, Inc., Eastlake, Ohio, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Substitute the following for paragraph (e):
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 The complaint alleged, inter alia, that Respondent's withholding of over-
time from employee George Harris violated Sec. 8(aXS) and (3) of the Act.
In his Conclusions of Law the Administrative Law Judge found that this
conduct violated Sec. 8(aX5) but elsewhere in his Decision found that it
violated Sec. 8(aX3). We agree that the withholding of overtime violated Sec.
8(aX3) and therefore find it unnecessary to determine whether it violated
Sec. S(aX5) as well.
I In par. I(e) of his recommended Order the Administrative Law Judge
provided that Respondent shall cease and desist from "in any other manner"
interfering with, restraining, or coercing employees in the exercise of their
protected Sec. 7 rights. However, in light of our recent decision in Hickmolr
Foodsr, Inc., 242 NLRB 1357 (1979), we shall narrow the Order and notice to
read "in any like or related manner," because the broad injunctive langugage
is warranted only when a respondent has shown to have a proclivity to
violate the Act or has engaged in such egregious or widespread misconduct
as to demonstrate a general disregard for the employees' rights.
"(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain in good faith
with International Union, United Automobile,
Aerospace and Agricultural Implement Workers
of America. Local 1260, UAW, about the wages,
hours, and working conditions of employees in
the appropriate unit.
WE WILL NOT unlawfully induce employees by
promising increased benefits to striking employ-
ees if they abandon the strike and the Union.
WE WILL NOT threaten employees that we will
not settle with the Union or reach a contract
with the Union.
WE WILL NOT curtail or eliminate the overtime
hours of work for employees who are bargaining
representatives of the employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their Section 7 rights.
WE WILL, upon request, bargain with the
Union about a contract for the employees in the
appropriate unit, and. if an agreement is reached
and upon request, embody such agreement in a
written contract.
WE WILL make whole George Harris for his
loss of overtime pay, with interest, by the curtail-
ment or elimination of his overtime work for the
months of January 1977 through April 28, 1977.
WE WILL, upon unconditional request for em-
ployment, reinstate those striking employees to
their former jobs or, if those jobs no longer exist,
to substantially equivalent jobs, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed, discharging if neces-
sary, those employees hired since April 28, 1977.
In the event Respondent refuses to reinstate said
employees, Respondent will, 5 days after the un-
conditional offer for reinstatement, be liable for
backpay and interest until compliance.
SKRL DIE CASTING, INC.
DECISION
STATEMENT OF HE CASE
JOHN C. MILLER, Administrative Law Judge: Upon com-
plaints issued on May 31. 1977. and February 15. 1978. the
245 NLRB No. 134
1041
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cases were consolidated for hearing in Cleveland, Ohio. on
July 24 26, 1978, and again on September 7, 1978. On July
26, 1978, the parties requested an adjournment to discuss
the possibility of reaching a contract and settlement of the
allegations of the complaints. At the time of adjournment it
was agreed to reschedule a resumption of the adjournment
it was agreed to reschedule a resumption of the hearing on
September 7, 1978, in tht event that negotiations and/or
settlement discussions were not successfully concluded.
Thereafter, the hearing did in fact resume on September 7,
1978, and the parties completed the presentation of their
cases.
The consolidated complaints alleged threats, promises of
benefits, and unilateral and discriminatory withholding of
overtime work to certain employees in violation of Section
8(a)(1), (3), and (5). They also alleged that Respondent ne-
gotiated in bad faith citing, inter alia, various actions by
Respondent such as threats of reprisal and promises of
benefits in order to undermine the union majority and de-
stroy its majority. On the opening day of the resumed hear-
ing on September 7, 1978, 1 questioned counsel for the Gen-
eral Counsel whether the allegations of refusal to bargain
were limited in time, and he responded that the refusal to
bargain allegation included up until the present time. All
parties were represented by counsel and were afforded full
opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce any relevant evidence. Thereafter,
the parties filed briefs which have been fully considered.
Upon the entire record in this case and from my observa-
tion of the demeanor of the witnesses I make the following
findings:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation duly organized under the
laws of Ohio and is engaged in the manufacturing of high
pressure aluminum diecastings at its facility located at
34580 Lakeland Boulevard, Eastlake, Ohio. Annually, Re-
spondent ships products valued in excess of $50,000 directly
to points outside the State of Ohio. The complaint alleges,
Respondent admits, and I find that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
The complaint also alleges, Respondent admits, and I
find that the Union, International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers of
America, Local 1260, UAW, is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Complaint in Case 8--CA-10927'
This complaint contains allegations of violations of Sec-
tion 8(a)(l), (3), and (5) in that:
' At the heanng counsel for the General Counsel moved to amend the
complaint alleging violations by Foreman Thomas Tekavec (item 3 above)
and an additional allegation involving Assistant Manager Edward Hainri-
har. I granted the motion, and thereafter the General Counsel filed a written
amendment thereon which has been adnmted as G.C. Exh. 3.
(I) Mrs. Stanley Skrl, an agent of Respondent, threat-
ened an employee with bodily harm if an employee contin-
ued to participate in picket line activity in support of the
Union;
(2) Respondent, about late March 1977, threatened em-
ployees that membership in the Union would be futile as
Respondent would eventually be rid of the Union;
(3) That on unknown dates during the first part of April
1977 on a day in the first part of May 1977, and on an
unknown date on or about the third week of July 1977
Respondent, through Thomas Tekavec, supervisor and
agent, threatened employees with reprisals because of their
union membership and support, and indicated that the Re-
spondent would not bargain in good faith.
(4) That Edward Hainrihar, supervisor of Respondent,
did:
(a) On or about April 29 or 30, 1977, indicate to an em-
ployee that Respondent would not bargain in good faith
and promised benefits if employees abandoned their sup-
port for the Union;
(b) On or about May 11, 1977, threatened an employee
by telling him that it would be futile to join the Union as
Respondent would never agree to a contract with the
Union.
(5) That on various dates in September and December
1976 and March 1977 Respondent unilaterally reduced
overtime of certain union officers and members of the bar-
gaining committee in an attempt to undermine the Union
and destroy its majority.
Allegation (1). Sandra Szuch credibly testified that after
the strike and picketing began it was customary for Respon-
dent to take pictures of trucks leaving and entering the
plant because the pickets were attempting to interfere with
them. She recalled that Ed Hainrihar, a foreman, buzzed
the office indicating he was leaving the plant with a truck,
and that she and her mother, Mrs. Stanley Skrl, walked to
the driveway with cameras in hand to observe the depar-
ture. According to Szuch, when George Harris, a striking
employee, placed his hand on the truck Skrl yelled, "If any-
thing happens to Ed, there is going to be a dead nigger."
Szuch explained that prior to this incident Ed Hainrihar's
wife had received threatening phone calls at home and had
called the office, stating that someone was threatening to
hurt her children and that Ed is going to be fired. Skrl had
personally called Mrs. Hainrihar back, apparently to reas-
sure her. In sum, the threat by Skrl was prompted by the
telephone threats to Hainrihar and the fact that pickets had
interfered with the ingress and egress of trucks into the
plant and by Harris' action in placing his hand on the
truck. While Skrl's choice of language is racist in tone, I
find that her threat was aimed at neutralizing any threats of
harm to Ed Hainrihar, the assistant manager who was at-
tempting to drive the Company's truck off the premises,
and was not aimed at inhibiting any lawful picket line ac-
tivity. Harris' testimony confirmed the language used by
Skrl, although he claimed that he was merely discussing the
strike situation with Hainrihar. In any event, the thrust of
Skrl's threat was to preclude any violence directed at Hain-
rihar. Accordingly, the allegation is dismissed.
Allegation (2). Sylvester (Tony) Felice testified that some-
time in March 1977 he had a conversation with Stanley
1042
SKRL DIE CASTING, INC.
Skrl, the owner of Respondent. on the loading dock of the
plant. According to Felice, Skrl stated, "If you guys want to
go on strike, go ahead, he could care less." Skrl further
stated that they were going to lose their dies but "Eventu-
ally we will get them back again. We will get rid of the
union. Eventually I will get these dies back one at a time."
Stanley Skrl2 did not testify. The reference to the dies gives
a ring of authenticity to Felice's undisputed testimony. Ac-
cordingly, I credit Felice in this regard and find that Re-
spondent, through the comments of Skrl, threatened to get
rid of the Union and thereby violated Section 8(a)( 1 ) of the
Act.
Allegation (3). Thomas Tekavec was a foreman or group
leader who initially assisted in organizing for the Union,
but shortly after bargaining began he dropped out as an
employee bargaining representative. He subsequently did
not join the strike. The record discloses that he regularly
assigned work and disciplined employees, and I conclude
that he was a supervisor within the meaning of the Act.
Zvonko Besednjak testified that in a conversation with
Tom Tekavec, the foreman on the third shift, on or about
the first part of April 1977 Tekavec said that he had gone to
a meeting with Skrl, Al Nason, Frank Pellagrini, and San-
dra Szuch, and that Skrl would not settle at all. He would
rather let the operation go under than settle and have a
union shop. About I month later he again talked to Teka-
vec, and in talking about the shop Tekavec again stated
that Skrl would not want to settle or have a union shop. He
also testified that Tekavec called him at his home in late
July 1977 and inquired about his injury on the picket line.
In that conversation Tekavec stated that Skrl would not
settle, and that he would rather have the Company go un-
der than have a union shop.
It is clear and I find that the reference to a "union shop"
was the technical term referring to a union-shop clause
which would require all employees to join the Union and
not a generic reference implying that his plant or shop
would become unionized.
Tekavec's version was that he talked to Besednjak on the
phone and told him it was going to be a long strike, that
Stanley (Skrl) was not going to sign that contract, and that
he would rather close the doors than have a union shop.
With respect to the May incident, Tekavec stated he told
Vince (Besednjak) "that Stan wouldn't sign that contract."
He denied making a similar statement in July 1977. Teka-
vec conceded on cross-examination that Stanley Skrl men-
tioned that if things could not be ironed out, "jobs would
lose, we would lose." He also stated to employees that Skrl
would close the doors before he would have a union shop.
Tekavec's testimony does not basically dispute that of
Besednjak, and to the extent that there are minor differ-
ences I credit Besednjak.
In each of the incidents involving Besednjak and Tekavec
a repeated theme was that Skrl "wouldn't settle" with the
Union or have a union shop. I find that Tekavec intended
and did convey the message that Skrl would not settle or
reach a contract with the Union, which I find a threat vio-
lative of Section 8(aXI).
2 Skrl was also spelled Skrlj in the record. For purposes of clarification and
in light of the company name Skrl will be uniformly used.
Allegation (4), EdwardJ. Hainrihar. Harry Lunsford testi-
fied that Hainrihar, assistant manager and admitted super-
visor, talked to him in Hainrihar's car on or about April 29.
shortly after the strike began. and asked him to use his
influence to get the people back to work: that Skrl could
not put anything in writing, but that employees would get
more money and benefits if they came back and frgot the
Union. According to Lundsford, Hainrihar further stated
that Skrl said that he would never sign a contract and cer-
tain people on the picket line would never see the inside of
the shop again.
Employee Besednjak testified that on or about May I 1.
1977, Edward Hainrihar stated to him that Stanley (Skrl)
would not settle, i.e., reach a contract. that he would take
care of them if they went in without a union. Further.
Hainrihar stated that Skrl would rather have the Company
go under than have a union shop.
George Harris testified that Hainrihar told him, on or
about May 11, 1977, that Skrl just did not want the Union.
that he (Skrl) would be willing to do things for them if they
would come back to work.
Regarding Besednjak's testimony, Hainrihar conceded,
"I probably did say that, that he wouldn't sign that" (refer-
ring to the contract the Union was after), because Skrl had
employees who did not wish to belong to the Union. He
denied saying to Besednjak that Skrl would rather have the
Company go under than have a union shop.
On cross-examination Hainrihar further testified:
I was also trying to entice people to come back, okay?
I had a job to protect. okay? So maybe at times I
would go a little bit beyond-I don't know if I did or
did not; I didn't feel I was. But a lot of people did
come back to work and are very happy back at work.
In view of Hainrihar's admission that he sought to entice
people back to work, I credit Lunsford, Besednjak, and
Harris and find that Hainrihar did offer them increased
benefits if they returned to work and abandoned the Union.
I also find that the fact that Hainrihar stated that Skrl said
that he would never sign a contract and further that Re-
spondent would never sign a contract constitute unlawful
promise of benefits and a threat and find each violative of
Section 8(aX I) of the Act. I similarly find that the threat to
let the plant go under rather than agree to a union shop is
also violative of Section 8(a)( ).
Allegation (5). This involved unilateral reduction of over-
time work for union officers and members of the bargaining
committee.
Robert Dixon. The complaint alleges that Dixon, an em-
ployee member of the bargaining committee, had his over-
time unilaterally reduced by Respondent beginning on or
about September 18, 1976, the date of the representation
election, in an attempt to undermine the Union. Dixon did
not testify at the hearing.
Timecards3 of attendance at work were submitted as
a Interpretation of the timecards was established by the undisputed testi-
mony of Sandra Szuch. Absent (Ab) on the cards indicated employee ab-
sence from scheduled work. Actual hours are distinguished from total hours,
e.g., 48 actual hours total 52 when time and a half is added. Where timecard
total hours were illegible or unmarked totals were compiled by adding time
and a half after 40 hours.
1043
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel Exhibit 25 and by Respondent as Respon-
dent Exhibit 12; they disclose the following:
Weeks
Ending
8/21/76
9/4
9/11
9/18
Hours Worked
by Dixon
40
40
40
40
After September 18, 1976, the date of alleged reduction
of overtime, the timecards disclose the following:
Weeks
Ending
10/9/76
10/23
11/6
11/13
Hours Worked
by Dixon
48
52
52
52
On October 30, 1976, Dixon worked 40 hours, but his
timecard indicates that he was absent from scheduled work
on Saturday. For the week ending November 20, 1976, he
worked 35 hours, but his timecard indicated that he was
absent although scheduled for Saturday work. For the week
ending December 11, 1976, he worked 32 hours, but his
timecard indicates that he was absent from scheduled work
on Tuesday and Saturday. If anything, the timecards estab-
lish that Dixon worked or could have worked more over-
time subsequent to September 18, 1976, than he did the
month prior thereto. I find no evidence supporting the alle-
gation, and accordingly it is dismissed.
Harry Lunsford. The complaint alleged the unilateral and
discriminatory reduction of his overtime work on or about
September 18, 1976. Lunsford testified that he regularly
worked 16-20 hours of overtime each week, but after a
negotiation session in late January or early February 1977,
at which he strongly defended the Union's request for a
union-security clause, his overtime was drastically cut. The
timecards (the validity of which have not been questioned)
do not support Lunsford's testimony, however. The time-
cards reveal the following hours that Lunsford worked for
February 1977:
Week
Ending
2/4/77
2/11
2/19
2/26
Hours Worked
by Lunsford
39.5
63
70
58
As the time cards directly refute Lunsford's testimony
and the validity of the timecards is not disputed, I cannot
credit Lunsford's testimony in this regard. I have, nonethe-
less, reviewed the overtime hours worked monthly by Luns-
ford beginning August 14, 1976, and continuing through
April 23, 1977, and they reveal the following:
Month
Aug. 1976
Sept. 1976
Oct. 1976
Nov. 1976
OT Hours
Worked
24
71
84
18
Month
Dec. 1976
Jan. 1977
Feb. 1977
Mar. 1977
Apr. 1977
OT Hours
Worked
44
0
51
0
12
While the above overtime figures do indicate a drastic
falling off of overtime in January and March 1977, it is
offset to a certain extent by the extensive overtime worked
in February 1977 and 12 hours in April 1977. Since Luns-
ford worked only 18 hours of overtime in November 1976,
and he did not claim that there was any discriminatory
withholding of overtime prior to 1977, the 12 hours of over-
time in April does not appear discriminatory on its face
when compared to the 18 hours of overtime worked in No-
vember 1976.
Lunsford further testified that he concluded overtime was
discriminatorily withheld from him because other "help-
ers," a job classification which he held, worked extensive
overtime and he did not. He referred specifically to Bobby
Bairt, Charles Caldwell, and Denny Gray as helpers who
worked more overtime than he did. A review of their time-
cards as compared to Lunsford's for the period January
1977 through April 1977 reveals the following:
(1977)
O/T Hrs.
Lunsford
Bairt
Caldwell
Gray
Jan.
0
30-3/4
0
0
Feb. Mar. Apr.
61 0
60 53
58 36-3/4
12 12
12
0
0
0
Gray can be discarded for comparison purposes, since
the exhibit contained none of his timecards for January and
he was absent or had no record for April.
With regard to Lunsford and Bairt, the above chart dis-
closes that Bairt worked significant amounts of overtime in
January and March 1977, as compared to no overtime
hours for Lunsford in those months. By the same token,
overtime was comparable between the two for February,
and Lunsford had more overtime (12 hours), for April than
Bairt, who had none.
With regard to Lunsford and Caldwell, only March
shows any disparity, with Lunsford getting no hours over-
time and Caldwell getting 36-3/4 hours. A further examina-
tion of Lunsford's March payroll cards discloses that for the
week ending March 4, 1977, he recorded only 23-1/2 hours
and was marked "absent" for Wednesday, Friday, and Sat-
urday although scheduled for work. If he had worked a
minimum of 8-hour days for those 3 days he would have
accumulated an additional 24 hours or a total of 47-1/2
hours or approximately 11 hours of overtime with time and
a half. For the week ending March 12, 1977, Lunsford re-
corded 32 hours of work and is noted as absent for sched-
1044
SKRL DIE CASTING, INC.
uled Friday work. For the week ending March 19, 1977.
Lunsford recorded 33-1/2 hours of work. He was appar-
ently not scheduled for work on Monday. worked 4 and 5
hours respectively on Wednesday and Thursday of that
week, and ended the week working 8 hours on Saturday.
The timecards do not indicate whether the short work day
worked on Wednesday and Thursday were for Lunsford's
personal convenience or whether he was not scheduled for
work, and there was no testimony by either Lunsford or the
Company with respect to this particular week. For the week
ending March 26, 1977, Lunsford was not scheduled for
work on Monday and ended up recording 40 hours of work,
including 8 hours for Saturday.
After reviewing the above figures and comparisons I am
not persuaded that overtime was discriminatorily withheld
from Lunsford. Essentially, March 1977 is the one month in
which there appears to be disparate treatment in giving
overtime. Yet, in March Lunsford was absent on four work-
days and could have worked a minimum of 11 hours over-
time.
In view of the fact that the timecards directly dispute
part of his testimony, his absences from work in March (a
critical month), and the fact that he worked 12 hours in
April 1977 although his counterparts worked no overtime
all lead me to conclude that there is insufficient evidence to
support this allegation, and it is therefore dismissed.
Sylvester (Tony) Felice. The complaint alleged that over-
time was discriminatorily withheld from him beginning on
or about September 17, 1976. At varying points in the rec-
ord Felice testified that he got no overtime after the elec-
tion; that he did not "recall" getting any overtime from
November 18, 1976 (the start of negotiations), to the end of
1976; that he did not recall receiving any overtime in Feb-
ruary 1977; and he finally stated that he could only recall
getting 4 hours of overtime, and that that occurred the week
of the strike, which began April 28, 1977.
An examination of his timecards for the pertinent periods
reveals the following weeks in which overtime was or could
have been worked:
4eek Total Hrs.
Ending Worked
10/2 52
10/16 51-1/2
10/23 8(Timecard indicates absent
from scheduled work for
5 days)
10/30 24 (Timecard marked absent
for 3 days)
12/4
2/11
2/19
2/26
47
54
52-1/2
35 (Timecard indicates absent
Saturday)
3/4 52
4/30 28 (4 hours overtime)
Obviously, the timecards do not support Felice's testi-
mony. While he recalled only 4 hours of overtime during
the entire period, the above totals gleaned from his time-
cards established that he did work or could have worked
overtime on nine other occasions. While he and a number
of other employees did not work in January 1977. he testi-
fied that the plant was shut down due to a gas shortage, and
hardly anyone worked in January. Accordingly, the allega-
tion that overtime was discriminatorily denied him is not
supported by the record, and it is dismissed.
Charles Green. The complaint alleged that overtime was
discriminatorily withheld from him beginning on or about
March 6, 1977. Green testified that prior to becoming a
member of the negotiating committee on March 6, 1977, he
worked approximately 20 overtime hours per week. After
becoming a member of the negotiating committee Green
stated that he worked no overtime except for the Saturday
after March 6, 1977. A review of the overtime hours worked
for the months August 1976 through April 1977 discloses
the following:
Month
Aug. (from 8/14)
Sept.
Oct.
Nov.
Dec.
Jan. 1977
Feb.
Mar.
Apr.
07T Hr.s.
28
59
18
43
13
30
36
23
12
The above information supports Green's testimony in
part that in the months preceding his accession to the bar-
gaining committee he did work considerable overtime, al-
though in the months from August 1976 through February
1977 he averaged approximately 32 hours a month over-
time, not 20 hours a week as he stated. The discrimination.
if any, according to Green, occurred in the months of
March and April 1977. In March he worked 23 hours of
overtime, which equaled or surpassed the overtime hours
worked in October and December 1976, 18 and 13 hours,
respectively, which months are not alleged as discrimina-
tory periods. Moreover, his timecards reveal that he worked
a total of 52 hours for the week ending March 12. 1977. and
52 hours for the week ending April 23. 1 find the evidence
insufficient to support the allegation as to Green, and I
recommend that it be dismissed.
George Harris. The complaint alleged that Harris was
discriminatorily denied overtime from on or about Septem-
her 18, 1976. Harris, a leadman or assistant foreman who
worked the 7 a.m. to 3 p.m. shift, credibly testified that
during the 10 years he had been with the Company he had
worked overtime from 12-16 hours a week. Harris further
testified that sometime in mid-December 1976 all of his
midweek overtime was cut. and that after the employees
took a strike vote (on or about March 17, 1977). the Com-
pany posted a notice stating that overtime was cut out ex-
cept for emergencies. Thereafter, Harris stated that he was
not offered any overtime up until the week of the strike.
which occurred on April 28, 1977. He stated that the lack of
overtime was a complete reversal of company policy. be-
cause in the past the Company emphasized the necessity of
working Saturday and he had often, in his role as leadman
1045
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or assistant foreman, urged employees to show up for Sat-
urday work. When he questioned Pellagrini, his foreman,
about it. he was informed that there was no overtime except
for emergencies. When he pointed out that some people
were still working overtime Pellagrini responded "that's
how it is."
A review of Harris' hours worked as compared to that of
Thomsas Nason, a leadman in a similar position to that of
Harris on another shift, for the period December 11, 1976,
through April 30, 1977, reveals the following:
Month/Day
Week Ending
12/11/76
12/18
12/25
1/1/77
1/8
1/15
1/22
1/29
2/4
2/11
2/19
2/26
3/4
3/12
3/19
3/26
4/2
4/9
4/16
4/23
4/30
Monthly
Dec. 1976
Jan. 1977
Feb.
Mar.
Apr.
Total Hours Worked
(N/S---Not scheduled)
(N/R---No record)
G. Harris
51-1/2
40
32
40
40
40
8
N/S
32
52
52
52
40
40
40
40
N/R
32
34
40
31
T. Nason
70
73
59
67
52
55
41-1/2
52
N/R
70
64
82
76
83
38
88
88
67
85
55
50-1/2
Overtime Hours Worked
G. Harris T. Nason
23
0
36
0
0
82
55-1/2
96
127
145
Even excluding from consideration those weeks in which
no timecards were in evidence for Harris or Nason or those
days in which Harris may have voluntarily absented him-
self from work, a comparison of overtime hours between
Harris and Nason shows a great disparity of overtime work.
[Both occupied the position of leadman on their respective
shifts. Harris was an employee bargaining representative,
Nason was not.] Harris' recollection of what transpired ap-
peared good, and in instances where he was not sure he said
so and appeared truthful. I note, for instance, that his ver-
sion of what transpired when Mrs. Skrl threatened him was
essentially in accord with that of Szuch, the company wit-
ness and daughter of the owner.
There is a combination of factors which persuade me that
a prima facie case has been made out that overtime was
discriminatorily withheld from George Harris. First, there
is a high disparity of overtime worked between George
Harris and Tom Nason, individuals who occupy similar po-
sitions on different shifts beginning December 11, 1976,
through April 30, 1977. Harris had been accorded regular
overtime work in the past, yet he was given none during the
months of January, March, and April 1977 while Nason
worked 327 hours of overtime during those months. Sec-
ond, Harris was a member of the bargaining committee.
Nason was not. Pellegrini's remark did not satisfactorily
explain why Harris was not being awarded any overtime
compared to others, and the failure of Pellegrini or other
company witnesses to explain the overtime disparity fails to
rebut the inference of discrimination. The prior 8(a)(l) vio-
lations I have found established that the Company was ve-
hemently opposed to a union, and Hainrihar admitted that
he tried to entice employees back to work, which establishes
the Company's animus toward the Union and its support-
ers. Accordingly, I find that the Company discriminatorily
withheld overtime work from Harris because of his partici-
pation in bargaining on behalf of the Union in particular
and his union support in general, and that such conduct is
violative of Section 8(a)(1) and (3) of the Act.'
B. Complaint in Case 8-CA-11264
This complaint alleged the following:
(1) That Respondent, through Edward Hainrihar, a su-
pervisor, did:
(a) Sometime in July 1977 unlawfully threatened and co-
erced an employee by telling him that Respondent would
never sign a contract with the Union;
(b) On or about August 22, 1977, unlawfully threatened
an employee by telling him that Respondent would close its
doors before it would negotiate a contract with the Union;
(c) On or about August 22, 1977, unlawfully promised an
employee a raise and a bonus once the Union was no longer
the collective-bargaining representative.
I recognize the apparent inconsistency in finding that four of five em-
ployees on the bargaining committee were not discriminatorily denied over-
time and thereafter finding that Harris was so denied. However. Harris had
been listed as a foreman and was downgraded to leadman after choosing to
stay in the bargaining unit and on its bargaining committee Tekavec, an-
other foreman who also was initially on the bargaining committee, thereafter
decided not to support the Union and did not join the strike against Respon-
dent. Thus, Harris' former position as foreman and his choosing to remain
with the Union are special factors which I conclude prompted the discnmi-
nation against him.
With respect to the overtime allegations, I have fully considered Respon-
dent's brief and the helpful comparisons therein. However, I concluded that
the hours worked prior to the representation election to the date of the strike
by the alleged discriminatees and their counterparts represents a more mean-
ingful comparison than prior years where other variables, e.g., the amount of
work available or shutdowns for various causes, may effect the average num-
ber of hours worked.
1046
SKRL DIE CASTING, INC.
(2) That Respondent refused to bargain in good faith by:
(a) Threatening employees with reprisals and offering
them rewards and benefits in order to undermine the Union
and destroy its majority;
(b) Negotiating in bad faith and with no intention of
entering into a collective-bargaining agreement.
(3) That the strike which began on or about April 28,
1977, was caused or prolonged by the unfair labor practices
of Respondent.
I. The 8(a)(1) violations
Paul Wilson testified that about 2 months after the strike
began, on or about July 1, 1977, Ed Hainrihar drove by the
plant entrance dressed in his army uniform, stopped, and
stated that he (Wilson) might as well come back to work
because Skrl said that he was not going to sign a contract
and that their jobs were still available.
Zvonko Besednjak testified that on or about May I I,
1977, he and George Harris were on the picket line, and
they stopped Ed Hainrihar and asked him if Stanley (Skrl)
would ever settle or have any kind of a contract with the
Union. Hainrihar replied that he (Skrl) would not settle,
and that he would take care of them if they would go in
without a union. He also said that Skrl would rather have
the Company go under than have a union shop.
George Harris testified that on or about May 11, 1977,
Edward Hainrihar was leaving the company premises driv-
ing a truck, and during a conversation with him Hainrihar
stated that Skrl just did not want the Union, that Skrl
would be willing to do things for them if they would come
back to work: and that he could not make promises or
anything of that sort because of the Union, but that he
would do things for them.
When questioned as to Wilson's testimony, Hainrihar de-
nied ever having any conversation with Wilson to the effect
that Skrl would not sign a contract.
Regarding Besednjak's testimony noted previously,
Hainrihar did state, "I probably did say that, that he
wouldn't sign that," referring to the contract that the Union
was after. He denied saying that Skrl would rather have the
Company go under than sign a union shop.
With respect to Harris' testimony that Skrl did not want
the Union Hainrihar stated, "it's very possible that I did
say that as far as Stanley not wanting the Union. I mean, he
doesn't want the Union if he can help it, but the Union was
voted in and he is dealing with them." With reference to
doing things for them if they came back he indicated that
he only referred to what had been done before, as far as
giving them raises and the bonuses.
On cross-examination, when asked how he concluded
that Skrl would not sign the contract proposed by the
Union, Hainrihar stated that Skrl expressed himself
strongly as being against a union shop, i.e., employees being
forced to join the Union, and stated further:
I was also trying to entice people to come back, okay?
I had a job to protect, okay? So maybe at times I
would go a little bit beyond-I don't know if I did or
did not; I didn't feel I was. But a lot of people did
come back to work and are very happy back at work.
Hainrihar summed up by saying that he stated to em-
ployees that Skrl should be judged on what happened dur-
ing the first 8 years rather than the last 2, and that he (Skrl)
would not sign the contract that they are after.
The issue thus posed is whether Hainrihar did or did not
promise striking employees benefits if they returned to work
without the Union and whether he stated that Skrl would
not sign the Unions proposed contract or whether he stated
simply that Skrl would not settle with or sign a contract
with the Union.
In view of Hainrihar's admission that he was seeking to
entice employees to return to work I credit the testimonies
of Wilson, Besednjak, and Harris that Hainrihar promised
that employees would get more money and benefits if they
would come back to work and forget the Union. and that
Skrl would not sign a contract with the Union. I find that
allegations (a) and (c) as to Hainrihar are fully supported
by credited evidence, and they are each separately violative
of Section 8(a)(1). As to allegation (b) that an unlawful
threat was voiced when Respondent threatened to close its
door before it would negotiate a contract with the Union,
the credited testimony of Besednjak on this aspect is that
Skrl would rather have the Company go under than have a
union shop. It appears clear that Skrl was adamant in not
acquiescing in union demands for a union-shop clause. The
Union appeared equally adamant in its position on this is-
sue. In any event, the testimony fails to support this allega-
tion, and I shall dismiss it.
2. Refusal to bargain allegations
a. Negotiations-Phase I
Background. A Board election was conducted among an
appropriate unit of Respondent's employees on September
17, 1976: the Union won and was certified as collective-
bargaining representative on September 24, 1976. There-
after, Respondent and Union met in I I negotiating sessions
beginning on November 18, 1976, with the first stage of
negotiations ending with a meeting on April 8, 1977.' Since
Respondent is not alleged to have refused to bargain until
on or about April 27, 1977, the negotiations until that date
will be presented in summary fashion as background.
November 18, 1976, meeting. At this meeting the Com-
pany agreed to pay the four employee members of the bar-
gaining committee for any time lost from work. A discus-
sion of the status of "foremen" George Harris and Tom
Tekavec ensued, and although both individuals had been
stipulated as eligible to vote in the election, there appeared
some question as to whether they exercised supervisory du-
ties. It was agreed that they would remain in the bargaining
unit. The Union gave the Company a copy of its noneco-
nomic proposal (G.C. Exh. 5). and the parties reviewed
such proposal.
November 30 meeting. The Company presented its non-
economic proposals of 21 pages which provided, inter alia,
The II negotiation meetings in Phase I were held on: November 18 and
30, December 8. 14, 1976; January 20 and 25, February 2 and 16, March 16
and 22, and April 8, 1977. Gary Brandt, UAW representative, was the chief
spokesman for the Union. Jerry Fullmer. labor counsel for Respondent, was
its chief spokesman.
1047
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for recognition, maintenance of membership, checkoff of
union dues, arbitration of grievances, paid time for commit-
teemen, seniority, leaves of absence, and a union bulletin
board. Gary Brandt, the principal union spokesman at most
negotiating sessions, rejected the maintenance of member-
ship provision.
January 19 1977, meeting. Harry Lunsford replaced Tom
Tekavec as an employee representative of the union bar-
gaining committee. The Union urged acceptance of its
union-shop clause. There was general discussion of other
provisions, and some items were agreed on.
January 25, 1977, meeting. Company presented a revised
draft covering introductory paragraphs and articles I-V of
the contract proposal. Brandt raised the question of over-
time distribution among members of the bargaining com-
mittee. Brandt and Fullmer initialed their agreement on 15
different provisions in the proposed contract.
February 2, 1977, meeting. Hall, president of the local
union and substituting for Brandt, stated that the Union
would not sign a contract without a union-shop clause.
There was disagreement over a no-strike arbitration clause,
with the Union urging that disagreements over job stan-
dards cases be excluded from the no-strike provision.
February 16, 1977, meeting. Hall again was chief union
spokesman; agreement in principle over provisions covering
leaves of absence, military leaves, union bulletin boards.
March 16, 1977, meeting. Charles Green replaced Felice
as employee representative on the union bargaining com-
mittee. Despite initial union objections the Company in-
sisted on presenting its economic proposals. Its proposals
consisted of maintaining existing wages and fringe benefits
except that increased insurance cost would be borne by the
Company. The Company stated that its no-wage increase
position was based on a survey of area wages in the diecast-
ing industry made by the Associated Industries of Cleve-
land, which showed that the Company was the highest pay-
ing Employer in the industry in that area. The wage survey
in question was admitted as General Counsel Exh. 34. The
Union noted that the average pay of operators listed for the
Company in the wage survey ($6.47 per hour), was higher
than the average pay for such operators given to the Union
by the Company. Szuch, daughter of the owner, later ex-
plained that the $6.47 figure was the average for operators
at the full rate of their progression. Brandt reiterated the
union position that the Union would not sign a contract
without a union shop.
March 22, 1977, meeting. Hall again was union spokes-
man. In a discussion about the union shop Fullmer pro-
posed an agency shop if the Union would agree to the Com-
pany's proposals on management rights, arbitration, and
no-strike. The Union rejected the agency shop proposal,
although Hall indicated the proposal might be acceptable
to Brandt, the regular union spokesman, who was not pre-
sent at this meeting.
Brandt was informed by letter of Company's position on
union security. (See Resp. Exh. 1).
April 8, 1977, meeting. The meeting was held with two
mediators of Federal Mediation & Conciliation Service.
Brandt rejected the agency shop proposal as not acceptable.
At this meeting the Union presented the Union's first eco-
nomic proposal in the negotiations. It sought, inter alia.-
Wage increase of 30 cents for the first year and 35 cents the
second year. Vacations- I week after 1 year: 2 weeks after
2 years: 3 weeks after 3 years 4 weeks after 8 years: 5
weeks after 10 years; 6 weeks after 20 years. It also pro-
posed life and health insurance benefits, pension, attend-
ance bonuses, and an unlimited cost of living allowance.
(COLA).
b. ,Negotiations Phase 11
In this phase of negotiations the parties held six bargain-
ing meetings beginning April 27, 1977, and ending August
29, 1977. All such meetings were held under the auspices of
the Federal Mediation and Conciliation Service.
April 27, 1977, meeting. The Union reduced its economic
demands to a 30-cent increase in each of 2 years of the
contract, reduced its holiday demands to eight the first year
and nine the second year, other reductions in insurance and
sickness benefits, and a 15-cent annual lid on cost-of-living
increases. The Company maintained its position that it was
already the highest paying Company in the area but offered
to relocate items in its offer, e.g. for one less holiday, wages
could be increased by 2 cents per hour.
April 28, 1977, meeting. Parties maintained their respec-
tive positions, with the Union suggesting that it was the
Company's turn to make a new offer. The Union main-
tained its position that it wanted a union shop. A strike
deadline had been set for 2 p.m. that day. The Union stated
that the Company's economic offer was unacceptable, that
union shop was not the only issue, and negotiations ad-
journed. Employees went on strike April 28, 1977.
June 7, 1977, meeting. Parties maintained their respective
positions, with the Union contending that it was the Com-
pany's turn to make a new offer. The Union wanted a union
shop.
Juvly 27, 1977, meeting. The Union presented some minor
changes in its economic proposal, changing its wage de-
mands to 35 cents-first year; 25 cents-second year, with
no pension changes the first year. The Company contended
that the proposals were essentially the same; in fact, wages
would be more because of the larger first year increase al-
though the pension proposal was being dropped.
August 10, 1977, meeting. Hall was present on behalf of
the Union. The parties maintained their respective posi-
tions.
August 29, 1977, meeting. Company negotiators had to be
called and arrived late at the scheduled meeting. Parties did
not get into substantive discussions, since neither party had
changed its position. There is no evidence that either party
sought further meetings, and this was the final negotiating
meeting prior to the hearing herein on July 24, 1978.
c. Negotiations Phase 11 (Post-Hearing)
(Four meetings-August 8, 1978, through August 30,
1978).
August 8, 1978, meeting. The Company presented a new
proposal containing a 70-cent across-the-board wage in-
crease and other minor benefits (improved seniority, shift
premiums), based upon a new wage survey from Associated
Industries of Cleveland. Parties reached agreement on a
number of provisions but still lacked agreement on union
1048
SKRL DIE CASTING, INC.
security, arbitration/no-strike clause, and over the term of
the contract.
August 11, 1978, meeting. The Company offered one more
paid holiday and made dental insurance noncontributary.
More contract provisions were agreed on. Areas of dis-
agreement continued to include union security, no-strike/
arbitration provisions, and the length of the contract.
Union representative insisted upon immediate reinstate-
ment of all strikers. The Company stated that those em-
ployees involved in strike misconduct would not be reinstat-
ed, and that those striking employees for whom jobs were
not immediately available would be put on a preferential
rehire list.
August 25, 1978, meeting. The Union accepted the wage
offer and maintenance of membership but wanted a condi-
tional no-strike/arbitration clause that permitted strikers on
safety and job standards and a 2-year agreement. The
Union also insisted on "sled-length" seniority, which meant
recall of all strikers and layoff of those employees with least
seniority. The parties appeared agreed on economic mat-
ters.
August 30, 1978, meeting. The Company presented a new
copy of a proposed agreement, which included those provi-
sions agreed upon and a separate strike settlement agree-
ment. The strike settlement agreement (Resp. Exh. II11),
listed 7 strikers who would be recalled immediately, 10 oth-
ers to be placed on preferential recall, and listed 5 employ-
ees who would be terminated for strike misconduct. The
agreement further provided for the dropping of all civil
suits and settlement or withdrawal of Board complaints.
The union representative, Brandt, rejected the Company's
strike settlement agreement because it did not provide for
reinstatement of all strikers and indicated that any civil
suits should be outside the scope of any settlement agree-
ment. The Company agreed to delete references to a pend-
ing civil suit but continued to adhere to other provisions of
the strike settlement agreement.
d. Discussion
The refusal-to-bargain allegation
In resolving the refusal to bargain allegation the principal
issue is whether the Company was engaged in a charade,
i.e., was engaging in surface bargaining with no intent on
reaching agreement or whether the Company did engage in
a bona fide attempt to reach an agreement. In determining
this issue the totality of conduct will be analyzed, and this
includes conduct at the bargaining table as well as pertinent
conduct elsewhere.6
As to negotiations, the record establishes that at the time
of the strike on April 28, 1977, the parties had failed to
reach agreement on a number of substantive items. Regard-
ing wages, the Company proposed only maintenance of ex-
isting wages based on its contention that a wage survey of
the industry showed its employees' wages to be above that
of other employees in the area. There was also no agree-
ment on the form of union security or on the provisions of a
no-strike/arbitration clause.
I Gulf States Manufacturers Inc., 230 NLRB 558 (1977).
Factors supporting a finding o' retiUsal to bargain
Negotiations
1. The Company failed to make any wage increase offers
from the beginning of negotiations on November 18, 1976,
until it made an offer of a 70-cent across-the-board increase
on August 8, 1978, some 21 months later, despite an infla-
tion rate in the country of approximately 7-9 percent per
annum. Moreover, assuming arguendo. some merit in its
position on wages, the Company made no offer of a wage
increase for either the first or second year of the proposed
contract.
2. The Company's use of operators in their final step of
their wage progression in compiling their average wages
being compared with those of operators from other compa-
nies in the association's wage survey. Obviously, the failure
to include all operators distorted the Company's so-called
"average" earnings to a higher figure and is not in fact an
"average" figure.
3. In stage I and 2 of negotiations discussed previously
the Company voiced no objections to the Union's proposal
for a 2-year contract. In stage 3 of negotiations, i.e., in Au-
gust 1978 after a recess of the hearing, the Company took
the position that it would only agree to a -year contract
because of new employees hired since the strike.
4. The Company retracted its "agency" shop proposal
and returned to a maintenance of membership proposal.
5. The company proposal in negotiations would reduce
existing benefits in the areas of breaktime (5 minutes from
existing 10 minutes), personal cleanup at the end of a shift
(to 10 minutes from 15 minutes), and to change from a paid
20-minute lunch period to a 30-minute unpaid lunchtime.
Conduct outside the bargaining table
I. The credited testimony of employee Felice that the
owner, Stanley Skrl, stated that while negotiations were un-
derway that although the Company would lose their dies if
a strike occurred, he would get them back again and would
"get rid of the Union." Skrl did not testify.
2. Credited testimonies of Lunsford, Besednjak, Wilson,
and Harris establish that Hainrihar, assistant manager,
promised employees benefits if they returned to work and
abandoned the strike and stated at various times that Skrl
would not sign a contract or would not agree to a union
shop. I do not credit Hainrihar's partial denials or his ver-
sion that he only referred to the Union's proposed contract,
and I find that he referred to a contract in general on most
occasions although he may have referred also to the union
contract. Moreover, as noted previously, Hainrihar's testi-
mony that he actively sought to entice employees to return
is consistent with employees' testimony that he offered em-
ployees increased benefits if they abandoned the strike and
returned to work.
3. The Company discriminatorily withheld from George
Harris customary overtime work because of his participa-
tion on the bargaining committee.
Factors indicating bona fide bargaining
1. The Company has met on request, furnished informa-
tion requested, paid employee members of the bargaining
1049
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committee for lost worktime, and paid for the meeting
rooms for the initial series of meetings.
2. Except in the area of wages and no-strike/arbitration
clause the Company made a number of concessions, includ-
ing offering an agency shop in lieu of their original mainte-
nance of membership offer, cut the period of probationary
time down, and reached agreement with the Union on a
substantial number of other provisions.
3. Its wage offer of 70 cents across-the-board, made in
phase 3 of the negotiations herein (August 1978), was in
accord with a more recent wage survey by Associated In-
dustries of Cleveland and was consistent with its earlier po-
sition on following the same wage survey. The Union and
the Company reached an agreement on economic terms in
the 1978 bargaining.
Neutral factors
1. The company-proposed strike settlement agreement
made in the August 1978 negotiations provided that it
would rehire 7 employees immediately, place 10 others on
preferential recall and that 5 employees would not be of-
fered reemployment dut to alleged strike misconduct. The
original proposal also provided that charges filed with the
Board be withdrawn and a civil suit pending be withdrawn.
After the Union objected that the civil suit was a personal
matter the Company agreed to delete it.
2. The parties did not agree on a no-strike/arbitration
clause at any stage of the negotiations.
3. The parties did not agree on a type of union-security
clause at the time of the strike, with the Union rejecting an
agency shop proposal. In the August 1978 negotiations the
parties agreed on a maintenance of membership clause, ap-
parently subject to agreement on other issues including re-
instatement of strikers.
Concluding Findings Regarding the refusal to bargain
If negotiations at the bargaining table were the sole crite-
ria I would conclude that although Respondent engaged in
hard bargaining the mere failure to offer a wage increase
would be insufficient to find that Respondent was not at-
tempting to reach an agreement. Implicit in such approach
is the fact that the industry wage survey relied on by Re-
spondent was not discredited not shown to be inapplicable
so as to render Respondent's reliance on such survey in
making its no wage increase offer indicative of bad faith or
an attempt to avoid an agreement. Respondent's failure to
acquiesce to union proposals for a union-shop clause or a
no-strike/arbitration provision are not in themselves im-
proper or illegal. Respondent as well as the Union are enti-
tled to maintain their respective positions on both matters.
However, when the additional 8(a)() and (3) violations
are considered the scale is tipped against Respondent.
While the conduct of one low-level supervisor, Tekavec,
stating that Skrl would not settle or accept a union shop
could be disregarded as not necessarily representing the
views of Respondent and its owner, the facts here are suffi-
cient to establish that Respondent entered into bargaining
with an intent to avoid an agreement.
I credited Felice's testimony that in March 1977 Stanley
Skrl, the owner, before the strike herein, stated that while
he would lose his dies in the event of a strike. he would "get
rid of the Union" and regain his dies one by one. Such a
comment by the owner, undisputed in this record, does not
indicate an open minded approach to bargaining but to the
contrary establishes that Respondent was rejecting the
Union as bargaining representative as was trying to avoid
reaching an agreement as part of an overall strategy of
causing a strike and getting rid of the Union.
Moreover, the credited testimonies of Lunsford, Wilson,
Besednjak, and Harris established that Edward Hainrihar,
the assistant manager, offered them increased benefits if
they would return to work and abandon the Union. The
admission of Hainrihar that he sought to entice strikers
back to work is in accord with the testimonies of the em-
ployees, and it is logical that to "entice" workers back you
have to promise some increases in benefits. Further, Hainri-
har's statement that he probably stated that Skrl would not
sign "that agreement" convinces me that he went further
than that and indicated that Skrl would never settle or sign
"an agreement" with the Union. Moreover, this is not an
operation where Hainrihar would not know Skrl's position
because it was a relatively small business operation, and
Hainrihar saw and talked to Skrl on a daily basis. Thus, on
April 29, 1977, the day after the strike began, Hainrihar
began openly to court striking employees to get them to
return to work by promising them increased benefits. Re-
spondent thus not only refused to grant a wage increase in
negotiations, but it began a deliberate program of undercut-
ting the strike and undermining the Union and its bargain-
ing position by enticing employees in an illegal manner to
return to work.
As more employees abandoned the strike and returned to
work it was in Respondent's favor to prolong the bargain-
ing and simply wait the erosion of the Union's strike and
bargaining strength. Thus I conclude that the bargaining
engaged in was a charade and was calculated to avoid
reaching an agreement with the ultimate objective of get-
ting rid of the Union.
While I might ordinarily be hesitant to find that the strike
was an unfair labor practice strike from its inception, the
comments of Skrl in March 1977 are confirmed by the sub-
sequent remarks conduct of Hainrihar over a period of
time. Moreover, Respondent began its illegal undermining
of the strike and the Union on April 29, 1977, the day after
the strike began. The comments by Hainrihar on that date
and subsequently to other employees confirms my belief
and conclusion that Respondent never intended to reach an
agreement with the Union, and that its posturing on wage
increases effectively assisted them in that purpose.'
I am aware and note that at the time of the strike on April 28, 1977, the
parties had not reached agreement on the form of a union-security clause
and also failed to reach agreement on a no-strike/arbitration provision. I do
not find that Respondent's position on either union security or on a no-
strike/arbitration provision was evidence of bad-faith bargaining. In this
respect Respondent had changed its offer of union-security language from a
maintenance of membership to that of an agency shop. With regards to a no-
strike provision, the Company wanted an unconditional no-strike/arbitra-
tion clause, whereas the Union was insisting on exceptions to the no-strike
provision. I find that both parties were entitled to maintain their respective
positions thereon without reflecting on their bargaining motivation
1050
SKRL DIE CASTING, INC.
Accordingly, I find that the strike which began on April
28, 1977, was in part an unfair labor practice strike from its
inception, and that Respondent has refused to bargain in
good faith in violation of Section 8(a)(5) and (I) of the Act.8
CONCLUSIONS OF LAW
1. By refusing to offer wage increases to employees in
bargaining in order to avoid reaching an agreement, seek-
ing to entice employees to abandon the strike and the
Union with promises of increased benefits, threatening that
Respondent would not sign a contract with the Union and
would get rid of the Union, discriminatorily withholding
overtime from George Harris because of his participation
as a union bargaining representative Respondent, by all of
the aforementioned conduct, refused to bargain in good
faith in violation of Section 8(aX5) and (1) of the Act.
2. The remark by owner Stanley Skrl that Respondent
would get rid of the Union constitutes a threat which is also
a violation of Section 8(aX)(1) of the Act.
3. The promise of increased benefits to strikers if they
would abandon the strike and the Union made to employ-
ees on April 29, 1977, and thereafter by Edward Hainrihar
are violative of Section 8(aX)(1) of the Act.
4. The remarks of Edward Hainrihar, assistant manager,
and Thomas Tekavec, foreman, that Respondent would not
settle with the Union or sign a contract with the Union
constitute threats violative of Section 8(a)(1) of the Act.
5. The strike which began on April 28, 1977, was an un-
fair labor practice strike, caused in part by Respondent's
refusal to make a wage offer in a proposed 2-year contract,
and such refusal was unlawfully motivated by an intent to
avoid reaching an agreement with the Union. In addition,
Respondent, by Edward Hainrihar, in comments to em-
ployees on April 29, 1977, and thereafter prolonged the
strike, confirming the unfair labor practice nature of the
strike.
6. The unilateral withholding of overtime work from
George Harris was prompted by Harris' participation in
bargaining as an employee bargaining representative and
constitutes a violation of Section 8(a)3) and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. Respondent has not otherwise violated the Act.
THE REMEDY
The recommended Order will require Respondent to
cease and desist from the unfair labor practices found and
s United Steelworkers of Amenrica, AFL-CIO v. N.LR.B., 405 F.2d 1373,
1376 (D.C. Cir. 1968); N.LR.B. v. Stilley Plywood Company, Inc., 199 F.2d
319, 320 (4th Cir. 1952); San Antonio Machine d Supply Corp., 147 NLRB
1112, 1113, fn. I (1964), enfd. 363 F.2d 633 (5th Cir. 1966); N.L.R.B. v West
Coast Casket Company, Inc., 205 F.2d 902, 907 (9th Cir. 1953).
Whether the strike would have occurred even if the Company had made
an offer on wages is speculative. While the strike continued even after the
parties reached an agreement on economic terms and union security in the
negotiations in August 1978, settlement was rendered more difficult by a new
complicating factor, i.e., whether all the strikers should be reinstated.
I would find, alternatively, in any event, that the conduct of Hainrihar on
April 29, 1977, and thereafter was designed to undermine the strike and the
Union's bargaining position, and that even if the strike were deemed eco-
nomic at its inception it was converted to an unfair labor practice stnke on
Apnril 29, 1977.
to make whole George Harris for his failure to receive over-
time in the months of January through April 28, 1977, to be
computed in the manner prescribed in F. W4: Woolworth
Company, 90 NLRB 289 (1950), with interest as set forth in
Florida Steel Corporation, 231 NLRB 651 (1977). 9 Upon un-
conditional offer of the strikers, reinstate them to their for-
mer or equivalent positions, discharging if necessary any
employees hired subsequent to the strike. Finally, Respon-
dent will be ordered to resume bargaining with the Union.
The Remedy ordered herein is not to be construed as re-
quiring Respondent to reinstate those unfair labor practice
strikers who are alleged to have engaged in strike miscon-
duct. Since this issue was mentioned but not litigated in this
hearing that matter is relegated to compliance proceedings.
This does not, of course, foreclose the parties from reaching
an agreement as to the five employees allegedly involved in
strike misconduct in the event that bargaining is resumed
in compliance with this Order.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding and
pursuant to Section 10(c) of the Act I hereby issue the fol-
lowing recommended:
ORDER"
The Respondent, Skrl Die Casting, Inc., Eastlake. Ohio.
its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Offering striking employees increased benefits in or-
der to get them to abandon the strike and the Union and
thereby undermining the Union.
(b) Threatening employees that Respondent will not set-
tle with the Union or reach a contract with the Union.
(c) Refusing to bargain with the Union in good faith
about a contract covering employees in the bargaining unit.
(d) Withholding overtime work from employees because
of their participation in negotiations as employee bargain-
ing representative.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Upon request, reinstate those unfair labor practice
strikers who make an unconditional request for employ-
ment not later than 5 days after such offer, discharging if
necessary any employees hired on or after April 28, 1977.
In the further event that after the aforementioned action
employees' former jobs are not available for other nondis-
criminatory reasons, offer them employment to equivalent
' See, generally, Isis Plumbing & Hearing Co.. 138 NLRB 716 (1962).
Is A number of options are open to the parties They could refer whether
such individuals were entitled to reinstatement to arbitration: they could
compromise and agree to terminate these individuals who engaged in fla-
grant misconduct not exceeding two or, alternately, agree to reinstate two of
the five and send the balance to arbitration. Finally. such issue can be re-
solved through compliance proceedings or a hearing under Board auspices
'1 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.
1051
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jobs. In the event that their former or equivalent jobs are
not available for nondiscriminatory reasons, place such em-
ployees on a preferential recall list where they are to be
offered employment for which they are qualified before any
new employees are hired. In the event of Respondent's re-
fusal to reinstate said unfair labor practice strikers pursuant
to their unconditional offer Respondent shall be liable for
backpay with interest, commencing 5 days after the uncon-
ditional offer of employment until compliance with this Or-
der.
(b) Make whole George Harris for loss of overtime work
for the months of January through April 28, 1977, with
interest in the manner set forth in the "Remedy" section of
this Decision.
(c) Upon request, meet and bargain with the Union, and
if an agreement is reached embody such agreement into a
written contract.
(d) Preserve and, upon request, make available to the
Board or its agents for examination and copying all rel-
evant payroll records, social security payment records,
timecards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of money due George
Harris under the terms of this recommended Order.
(e) Post at its premises in Eastlake, Ohio, copies of the
attached notice marked "Appendix."'2 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 8, after being duly signed by Respondent's representa-
tive, 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. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges unfair labor practices not found herein.
2 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 Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1052