Sks Die Casting & Machining, Inc.

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 372 (N.L.R.B. 1989)

372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
SKS Die Casting & Machining, Inc., SKS Die Cast-
ing & Machining , Inc., Debtor-In-Possession
and Bay Area District Lodge No. 115, Interna-
tional Association of Machinists and Aerospace.
Workers, AFL-CIO. Cases 32-CA-8053 and
32-CA-8950
May 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On March 11 , 1987, Administrative Law Judge
Michael D . Stevenson issued the attached decision
in Case 32-CA-8053. Both the General Counsel
and the Respondent filed exceptions and supporting
briefs, and each filed separate briefs in answer to
the exceptions of the other . On June 25 , 1987, a
complaint issued in Case 32-CA--8950, involving
the same parties , and alleging that the Respondent
violated Section 8(a)(3) and ( 1) by refusing to rein-
state unfair labor practice strikers to their former
employment positions following the Union 's March
16, 1987 unconditional offer on the strikers' behalf
to return to work . On September 22, 1987, the
General Counsel , the Respondent , and the Union
filed with the Board a joint motion for approval of
a stipulation of facts and for consolidation of Case
32-CA-8950 with Case 32-CA-8053. The parties
agreed that the resolution of Case 32 -CA-8950 was
directly related to, and dependent entirely on, the
Board 's resolution of certain issues in Case 32-CA-
8053 , and they waived a hearing and the issuance
of an administrative law judge 's decision in Case
32-CA-8950 . On February 22, 1988 , the Board ap-
proved the parties' stipulation of facts and ordered
the consolidation of Cases 32-CA-8053 and 32-
CA-8950. The General Counsel and the Respond-
ent filed briefs subsequent to the Board 's consolida-
tion order.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the judge 's decision
and the consolidated record in light of the excep-
tions and briefs' and has decided to affirm the
' The General Counsel's exceptions include a request for a visitatorial
clause as part of the remedy for the Respondent's unfair labor practices
In the circumstances of this case we find it unnecessary to add such a
clause to our remedy See Cherokee Marine Terminal, 287 NLRB 1080
(1988)
The General Counsel and the Respondent each filed a motion to strike
the opposing party's postconsolidation brief Because neither brief offers
new evidence for inclusion in the record and the matters sought to be
stricken are merely repetitive of previous contentions made by the par-
ties, we find it unnecessary to grant either motion
judge's rulings, findings, 2 and conclusions only to
the extent consistent with this Decision and Order.
The judge found, and we agree, that the Re-
spondent committed various violations of Section
8(a)(1), (3), and (5) during the spring of 1986.3 The
judge also found that the Union's May 9 offer,
made on behalf of the Respondent's striking em-
ployees, to end the strike and return to work was
not unconditional and, accordingly, he dismissed
the allegation that the Respondent violated Section
8(a)(3) and (1) by failing and refusing to reinstate
the strikers to their former positions. We disagree
with the judge, finding that the Union's offer was
unconditional, and that by failing, without justifica-
tion, to reinstate these economic strikers, the Re-
spondent violated Section 8(a)(3) and (1). In addi-
tion, because we find that this unfair labor practice
converted the economic strike to an unfair labor
practice strike, the Respondent also violated Sec-
tion 8(a)(3) and (1) by failing to offer reinstatement
to the strikers at the time of the Union's second un-
conditional offer on March 16, 1987.
The facts are more fully detailed in the judge's
decision. For purposes of the issues before us, we
note the following relevant matters. The Respond-
ent and the Union have had a long-term collective-
bargaining relationship; their most recent collec-
tive-bargaining agreement dated from June 20,
1983, and was set to expire on June 19, 1986. In
1984 the Respondent began to experience financial
problems; it attempted to alleviate its mounting
troubles by, inter alia, a series of layoffs, apparently
pursuant to the terms of the parties' collective-bar-
gaining agreement. By early 1986, approximately
100 of the Respondent's 120 bargaining unit em-
ployees had been laid off. In February, the Re-
spondent proposed to the Union that they bargain
concerning further cost-saving measures. The most
significant matter discussed was the Respondent's
proposal of a two-tier wage system, whereby
newly hired production workers, including laid-off
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings.
In addition, the Respondent contends that some of the judge's rulings,
findings, and conclusions demonstrate bias and prejudice On careful ex-
amination of the judge's decision and the entire record, we are satisfied
that the contentions are without merit
9 All subsequent dates are in 1986 unless otherwise noted
With respect to the unfair labor practices that the judge found were
committed by the Respondent in March, the Respondent has excepted
only to the judge's conclusion in fn 9 of his decision that the Respondent
made unlawful unilateral changes in terms and conditions of employment,
apparently also in March Because this matter was neither alleged in the
complaint nor litigated by the parties, we do not affirm the judge's con-
clusion
294 NLRB No. 25
SKS DIE CASTING
employees to be rehired or recalled, would be paid
$4 to $5 per hour-a rate approximately 50 percent
less than the current contractual wage rates. Those
unit employees then working for the Respondent
would continue to receive either their current or
similar wages . The Union was not agreeable to the
two-tier wage proposal, countering with an offer
for a smaller wage cut, applied across the board.
In March the Respondent filed a petition for re-
organization under chapter 11 of the Bankruptcy
Code and moved before the court for permission to
reject its collective-bargaining agreement. The par-
ties continued to bargain following initiation of the
bankruptcy suit. On April 28 the Respondent sub-
mitted a final offer, involving a two-tier wage scale
with lesser wage cuts for the unit employees cur-
rently working. The bargaining unit membership
rejected the offer. On May 2 the bankruptcy judge
granted the Respondent's motion to reject the col-
lective-bargaining agreement.
On May 5 the unit employees who had been
working began an economic strike, protesting the
absence of a collective-bargaining agreement in
light of the Respondent's authorized contract rejec-
tion. The strikers established picket lines at the Re-
spondent's two facilities. Laid-off employees did
not participate in the picketing. Also on May 5,
Jerome Keating, the Respondent's president, posted
on the doors of the two plants a document with
the following information:
lassification ame
Cur-
rent
Hour-
Com-
pany Union
Pro-
ly
Rate
Pro-
posal posal
Tool and
Die
Maker Dieter Rabe $17.75 $1775 $1310
Journeyman
Machinist Dave Finley 12 77 1200 11 32
Helmut Sample 12 77 1200 11 32
Jesus Lavenant 14 77 14 77 11 32
Earl DeCaccia 12.77 12.00 11 32
Dave Lawler 12.77 12.50 11 32
Die Caster Beufus Ford 10 80 10.00 9 59
Wilbert Jennings 10.80 1000 9.59
Dave Jones 10 80 10.00 9 59
Gerry Stanley 10 80 1000 9 59
Jimmy Stevens 10.80 10.00 9 59
Ron Steel 10 80 10.00 9 59
Specialist &
Machine
Adjuster Jim Russell 11.34 9.50 9.54
Augie Baluyut 1200 1200 9 54
Gil Fournier 10 93 9 50 9.54
Ed Sisneros 11.14 1100 9 54
Benny Gatan 10 74 9.50 9.54
Joga Singh 10.74 9 50 9 54
Roy Marquez 11.49 11.00 9 54
Cur-
rent
Classification Name Hour-
ly
Rate
Com-
pany
Pro-
posal
373
Union
Pro-
posal
Production
Worker
#2 Fred Whittaker 11 90 900 800
(G.C Exh 8)
Thus the document listed the individual strikers by
name and classification, their pay rates under the
rejected collective-bargaining agreement ("current
rate"), their pay rates as proposed by the Union in
negotiations ("union proposal"), and a "Company
proposal" for their pay rates that differed from the
Respondent's final offer in late April.4 Subsequent-
ly, when the pickets saw the "company proposal,"
their reaction was favorable, and they requested
that Union Business Representative Daniel Borrero,
who had arrived at the scene, confirm that the Re-
spondent was willing to pay them in accordance
with this latest proposal. Keating, also on the scene
at this point, told Borrero and the pickets that he
was in fact willing to pay at the specified rates, and
that he wanted to continue negotiations with the
Union. The pickets told Borrero that they were
willing to return to work at the proposed wages.
On May 9, Borrero sent a letter to Keating stat-
ing in relevant part:
The information that I received from you is
that you are willing to pay the wages you
have posted on the front door of S.K.S. Also,
you stated that you are willing to negotiate
with the Union.
The Union is willing to negotiate immediate-
ly and have our members return to work
under the posted wages, while we continue to
negotiate a new Contract.
On May 11 Keating sent a letter to Borrero ac-
knowledging receipt of the Union's May 9 letter
and declining to negotiate for a new collective-bar-
gaining agreement.5 The May 11 letter did not re-
spond to the Union's offer to return to work in its
May 9 letter, and the Respondent did not subse-
quently reply in any manner to that offer. Instead,
it continued to employ "new hires" and to rehire
laid-off employees, a process that had begun on
May 6. In June five striking employees crossed the
4 The General Counsel withdrew a complaint allegation that Keating's
posting of this document constituted an unfair labor practice
5 The fudge found, and we agree, that the Respondent's refusal to bar-
gain in the May 11 letter violated Sec 8(a)(5) and that this unfair labor
practice converted the economic strike to an unfair labor practice strike,
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
picket line and returned to work,6 and in subse-
quent months a few more strikers returned to
work.
The complaint in Case 32-CA-8053 issued in late
June alleging, inter alia, that the Respondent violat-
ed Section 8(a)(3) by its failure and refusal to rein-
state the strikers pursuant to the Union's May 9
offer to return to work. As explained below, the
judge found that the Union's offer was not uncon-
ditional, and he dismissed the 8(a)(3) allegation on
that basis. On March 16, 1987, 5 days after the
judge's decision issued, the Union again offered, on
behalf of the remaining strikers, to go back to
work. On March 17, 1987, the Respondent, in
reply, acknowledged the unconditional nature of
this second offer, and afforded the striking employ-
ees "all of the legal rights to which they are enti-
tled as economic strikers." As noted above, the
complaint in Case 32-CA-8950 issued in June 1987,
alleging that the Respondent violated Section
8(a)(3) by refusing to reinstate unfair labor practice
strikers following the Union's March 16, 1987 un-
conditional offer.
With respect to the Union's first offer to return
the striking employees to work, the judge found
that it was not unconditional, and thus no obliga-
tions on the Respondent's part were activated.
Rather, he concluded that the May 9 letter's offer
was conditional on its face and in the circum-
stances. The judge took account of the Respond-
ent's May 5 "company proposal," particularly its
stated wages of $9 an hour for striking production
worker Whittaker, and he took account of the Re-
spondent's two-tier wage proposal, which would
have paid $4 to $5 an hour to bargaining unit pro-
duction workers in the event of their return from
layoff. In addition, he noted Borrero's testimony at
the hearing that the May 9 letter' s use of the term
"members" was intended to include employees on
layoff as well as strikers, and that in the letter he
relied on an interpretation of the "company pro-
posal" which would have paid $9 an hour to pro-
duction workers returning from layoff, as well as
striker Whittaker. He also focused on the term
"members" in the clause "have our members return
to work under the posted wages" in the May 9
letter. He found that "members" referred to a
group of the Respondent's employees distinct from
the employees on strike, i.e., the approximately 100
who were on layoff. Pursuant to his finding of two
distinct employee classes in the instant case, the
judge distinguished Home Insulation Service, 255
NLRB 311 (1981), enfd. mem. 665 F.2d 352 (11th
Cir. 1981), in which the Board stated that when
8 Accordingly, we correct the judge's factual error that eight strikers
returned to work at this time
offers to return from a strike are made concerning
"the members" and similar collective employee
designations, the Board "does not infer that the re-
instatement of one is conditional on the reinstate-
ment of all." Id. at fn. 8.
The judge concluded that the condition implicit
in the May 9 offer to return was that the Respond-
ent put back to work all "members"-strikers and
laid-off employees-and pay all production work-
ers $9 an hour rather than the $4 to $5 an hour on
which the Respondent had insisted in negotiations.
Because he found that this condition was unambig-
uous, he determined that the Respondent had no
obligation to seek clarification of the offer and no
duty to reinstate the strikers. Accordingly, he dis-
missed the 8(a)(3) allegation. We disagree with the
judge's analysis because it is inconsistent with the
evidence and applicable law.
We find that the Union's May 9 letter was an un-
conditional offer to return the strikers to work.
The letter initially refers to Keating's willingness
"to pay the wages you have posted on the front
door of S.K.S." This is a clear reference to the
"company proposal" of May 5 listing the individual
strikers by name and classification and the specific
wages proposed for each such individual. In this
immediate context, the Union's offer to "have our
members return to work under the posted wages"
plainly refers to the strikers whose names appeared
next to the "posted wages." In fact, Keating admit-
ted at the hearing that he knew when he first read
the May 9 letter that it referred to the strikers re-
turning to work at the rates he had posted on the
doors.
Further, the judge's finding that "members," as
the term is used in the May 9 letter, referred to a
class distinct from the strikers is in error. Strikers
and "members" were not separate groups in this
case; nothing could be more clear than that the
strikers were part of a single class of "members,"
i.e., union members who were part of the tradition-
al bargaining unit. In disagreement with the judge,
we find that the principle he found distinguishable
in Home Insulation Service, supra, is applicable in
this case. Thus, when an offer to return to work is
made on behalf of "members," we will not infer
from the use of this collective designation that the
requested reinstatement of one, or some, or several
such "members" is conditional on the reinstatement
of every person within the group that "members"
may comprise. 255 NLRB 311 at fn. 8; see also Pre-
term, Inc., 273 NLRB 683, 684 (1984), enfd. 784
F.2d 426 (1st Cir. 1986), In other words, we do not
infer from the term "members" in the May 9 letter
that the Union was offering to return the strikers to
work if, and only if, all "members," i.e., laid-off em-
SKS DIE CASTING
ployees as well, were also rehired at acceptable
wage conditions. Further, to the extent it is rele-
vant in the absence of a request for clarification,
Borrero's testimony at the hearing that he intended
"members" in the May 9 letter to encompass a
broader group than just the strikers does not place
a condition on the offer to return the strikers to
work. There is nothing in Borrero's testimony, and
no other evidence in this record, which establishes
that the letter constituted an offer for the strikers'
return if, and only if, laid-off employees were re-
hired.
Keating testified that the Union's offer was "con-
fusing" for several reasons. The only asserted
reason of any significance here was Keating's im-
pression that the offer might be an effort by the
Union to get the $9-an-hour wage rate for laid-off
production workers, in addition to striker Whitta-
ker.7 However, Keating failed to act on what he
perceived to be an ambiguity in the May 9 offer.
"Where any such ambiguity remains unclarified
due to Respondent's decision to ignore the [offer]
and not seek clarification, Respondent may not be
heard to complain if such uncertainty is resolved
against its interest." Home Insulation, supra at 312,
citing Haddon House Food Products, 242 NLRB
1057 fn. 6 (1979). See also, e.g., Soule Glass & Glaz-
ing Co. v. NLRB, 652 F.2d 1055, 1107 (1st Cir.
1981). Instead of seeking clarification, the Respond-
ent ignored the Union's offer, and in making that
choice it acted at its peril. We conclude, on review
of the record and as set forth above, that the May
9 letter was an unconditional offer to return the
strikers to work.
In Zapex Corp., 235 NLRB 1237 (1978), enfd.
621 F.2d 328 (9th Cir. 1980), a case in which the
respondent violated Section 8(a)(3) by failing to re-
instate economic strikers following their uncondi-
tional offer to return to work, the Board stated:
Certain principles governing the reinstate-
ment rights of economic strikers are by now
well settled. In N.L.R.B. v. Fleetwood Trailer
Co., Inc., 389 U.S. 375, 378 (1967), the Su-
preme Court held that if, after conclusion of a
strike, the employer "refuses to reinstate strik-
ing employees, the effect is to discourage em-
ployees from exercising their rights to orga-
nize and to strike guaranteed by [Sections] 7
and 13 of the Act. . . . Accordingly, unless
the employer who refuses to reinstate strikers
can show that his action was due to `legitimate
and substantial business justifications,' he is
guilty of an unfair labor practice. The burden
7 We agree with the judge that the other asserted bases for the Re-
spondent's "confusion" are without any merit
375
of. proving justification is on the employer."
The Court in Fleetwood relied on its decision
in N.L. R.B. v. Great Dane Trailers, Inc., 388
U.S.,' 26, 34 (1967), where it held that "once it
has been proved that the employer 'engaged in
discriminatory conduct which coiild ' have ad-
versely affected employee rights to some
extent, the burden is upon the employer to es-
tablish that he was motivated by 'legitimate ob-
jectives since proof of motivation is most ac-
cessible to him." In reevaluating the rights of
economic strikers in light of Fleetwood and
Great Dane , the Board in The Laidlaw Corpora-
tion , 171 NLRB 1366 , 1369 (1968), stated that:
The underlying principle in both
Fleetwood and Great Dane, supra , is that cer-
tain employer conduct , standing alone, is so
inherently destructive of employee ' rights
that evidence of specific antiunion motiva-
tion is not needed. . . .
235 NLRB at 1238. In the instant case the General
Counsel established a prima facie case of unlawful
discrimination by proving that the economic strik-
ers made an unconditional offer to return to work
and that the Respondent failed to reinstate them,
thereby presumptively discouraging the exercise of
their rights under the Act. It was the Respondent's
burden to show that its failure to offer reinstate-
ment was due to "legitimate and substantial busi-
ness justifications." The Respondent's only defense
in this case to its failure to offer immediate rein-
statement to the economic strikers was that the
Union's offer was not unconditional. We have re-
jected that position. The Respondent raised no de-
fense with respect to business justifications for its
conduct.8 Accordingly, we conclude that the Re-
8 The record indicates that the Respondent began employing "new-
hires" and rehiring laid-off employees on May 6, and that several em-
ployees had been hired by the time of the strikers' application to return
to work The Respondent, however, did not offer a defense that any of
the strikers had been permanently replaced, and thus that vacancies did
not exist at the time of the unconditional offer It was the Respondent's
burden to raise the affirmative defense of permanent replacement, the
General Counsel is under no obligation to raise it See, e g, Medallion
Kitchens v NLRB, 806 F 2d 185, 189 (8th Cir 1986), enfg 275 NLRB 58
(1985) Quite simply, although the opportunity was available, this issue
was not specifically addressed at the hearing, the Respondent is accounta-
ble for this failure Cf C-Line Express, 292 NLRB 638, 639 (1989), where
the Board, following its reversal of the judge's finding that an economic
strike was converted to an unfair labor practice strike, remanded for fur-
ther findings in light of the parties' stipulation that the strikers had been
replaced
Further, we have carefully reviewed the record in this regard, includ-
ing Keating's testimony briefly addressing the hinngs We find nothing
there to compel a finding that these employees were hired as permanent
replacements Therefore, we find that vacancies were available for all
strikers at the time of their unconditional offer
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent's failure and refusal to reinstate the strik-
ers immediately pursuant to their unconditional
offer to return to work was inherently destructive
of employee rights and in violation of Section
8(a)(3) and (1). Laidlaw Corp., supra at 1369. See
also, e.g., Home Insulation, supra at 313; Zapex,
supra at 1240. Therefore, we will order the imme-
diate reinstatement of all strikers and backpay
dating from the time of their application to return
to work. See, e.g., Murray Products, 228 NLRB 268
(1977), enfd. 584 F.2d 934 (9th Cir. 1978).
In addition, we find that the Respondent's un-
lawful failure to reinstate the economic strikers fol-
lowing their unconditional offer converted the eco-
nomic strike into an unfair labor practice strike.
See Home Insulation, supra at 313.9 This is so be-
cause the Respondent's unfair labor practice effec-
tively blocked the termination of the strike at a
time when the Union and the striking employees
had offered unconditionally to end it. Thus, by its
nature, this unfair labor practice prolonged the
strike.
Accordingly, on, March 16, 1987, when the
Union, for a second time, offered unconditionally
to return the remaining strikers to work, they had
the status of unfair labor practice strikers. As such,
they were entitled "to immediate reinstatement
unless they were permanently replaced prior to
conversion." Charles D. Bonanno Linen Service, 268
NLRB 552, 554 (1984), enfd. 782 F.2d 7 (1st Cir.
1986). As we have found, there is no evidence that
any of the strikers were permanently replaced prior
to the conversion of the strike or, for that matter,
at any time thereafter. The Respondent's reply to
the Union's March 16 offer, while acknowledging
its unconditional nature, extended to the strikers
"all of the legal rights to which they are entitled as
economic strikers." The Respondent did not offer
immediate reinstatement to the unfair labor practice
strikers, and by failing and refusing to do so, it vio-
lated Section 8(a)(3) and (1). Charles D. Bonanno,
supra at 554; Top Mfg. Co., 230 NLRB 937 (1977),
enfd. 594 F.2d 223 (9th Cir. 1979). However, a sep-
arate remedial order for this subsequent 8(a)(3) vio-
lation is unnecessary in view of our finding above
that all the strikers, including those who remained
on strike as of March 16, 1987, were unlawfully
denied reinstatement after the May 9, 1986 uncon-
ditional offer to return to work. Our reinstatement-
and-backpay order for the first 8(a)(3) violation en-
' We have affirmed the judge's finding that the Respondent's unlawful
refusal to bargain in its May 11 letter converted the strike into an unfair
labor practice strike In light of our additional conversion finding here, it
is unnecessary for us to consider the Respondent's contentions in its ex-
ceptions that its refusal-to-bargain violation was "cured" by its subse-
quent conduct and that the strike was converted back to an economic
strike
compasses any remedy we might order for the sub-
sequent 8(a)(3) violation.
AMENDED REMEDY
We have found , inter alia , that the Respondent
unlawfully refused to reinstate economic strikers
following the Union 's May 9 , 1986 unconditional
offer on their behalf to return to work . Therefore,
in addition to the judge 's recommended remedy
with respect to other unfair labor practices com-
mitted by the Respondent , we shall order the Re-
spondent to offer those employees immediate and
full reinstatement to the positions that they held at
the time they went on strike or, if those positions
no longer exist , to substantially equivalent posi-
tions , without prejudice to their seniority and other
rights and privileges . In order to make room for
them, the Respondent shall dismiss , if necessary,
any persons hired to replace them subsequent to
the inception of the strike on May 5 , 1986. We
shall further order the Respondent to make whole
these employees for any loss of earnings and other
benefits they may have incurred by reason of the
Respondent 's discrimination against them , including
backpay from the time of their application to
return to work . i 0 Backpay , with interest , shall be
computed in the manner set forth in F. W. Wool-
worth Co ., 90 NLRB 289 (1950), and New Horizons
for the Retarded."
ORDER
The National Labor Relations Board orders that
the Respondent, SKS Die Casting & Machining,
Inc., SKS Die Casting & Machining, Inc., Debtor-
In-Possession, Berkeley, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in Bay Area Dis-
trict Lodge No. 115, International Association of
Machinists and Aerospace Workers, AFL-CIO, or
any other labor organization, by unlawfully failing
10 The list in our Order of striking employees who are entitled to rein-
statement and backpay has been compiled from the consolidated record
in this proceeding, including the Respondent's "Company proposal" doc-
ument posted on the doors of its facilities on May 5, 1986, and the com-
plaint allegations in Case 32-CA-8950 and the Respondent' s admissions
in its answer thereto We note that several of the striking employees
crossed the picket line individually and returned to work during the
course of the strike subsequent to the Union's May 1986 unconditional
offer to return to work Their remedial status, and potential issues con-
cerning the individual remedial status of other striking employees for
whom we are ordering reinstatement and backpay, are matters that we
leave to the compliance stage of this proceeding
11 283 NLRB 1173 (1987) Interest on and after January 1, 1987, shall
be computed at the "short-term Federal rate" for the underpayment of
taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 US C § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
SKS DIE CASTING
and refusing to reinstate or otherwise `discriminat-
ing against its employees because they have en-
gaged in protected strike or other concerted activi-
ty for their mutual aid or protection.
(b) Assigning supervisors and other nonunit per-
sonnel to perform bargaining unit work at such
time , if ever , as a new collective-bargaining agree-
ment is agreed to.
(c) Bypassing. the Union and dealing directly
with employees who are represented by the Union
for purposes of collective bargaining.
(d) Refusing to bargain collectively in good faith
with Bay Area District Lodge No. 115, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO as the exclusive representative
of the employees in the following unit:
. . . employees engaged in the making, manu-
facturing , repairing , dismantling , building,
maintaining, constructing, erecting , assembling
of all tools - and dies, machinery , engines,
motors, pumps, and all other metal and plastic
devices, either driven by hand, foot , steam,
electricity , gas, gasoline, naphtha, benzol, oil,
water or other power that comes under the ju-
risdiction of the International Association of
Machinists and Aerospace Workers as defined
in its Constitution as of this date , and the oper-
ation of all tools , machines and mechanical de-
vices; and all welding used in connection with
such work , and such other classifications as
may be required to properly perform and com-
plete the work or jobs of employees perform-
ing work within the jurisdiction of the Union.
The above jurisdictional claims are to specifi-
cally include the experimental and develop-
ment work on all tools , dies, jigs, fixtures, in-
struments and models and all heat treating
used in connection with such work.
Specifically excluded are:
(1) All employees who are presently represent-
ed by collective bargaining agreements with
other unions.
(2) Supervisors , Foremen , Engineering Person-
nel, and Technical Personnel who do not use
the tools of the trade except in a supervisory
capacity . It is not intended that the foregoing
apply to Leadmen and/or Working Foremen.
(3) Clerical and office employees , professional
personnel , watchmen or guards , and office
janitors, and all other employees , unless they
are covered by an addendum to this Agree-
ment.
(e) Telling employees there is no more Union
and telling strikers they are wasting their time as
the Respondent would never agree to a contract.
377
(f) In any like or related manner interfering with,
restraining , or coercing its employees in the exer-
cise of the rights guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer the following employees who engaged
in a strike beginning on May 5, ' 1986, immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions , without prejudice to their seniority
or any other rights or privileges previously en-
joyed , dismissing , if necessary , any persons hired to
replace them subsequent to the inception of the
strike, and make them whole for any loss of earn-
ings and other benefits suffered as a result of the
discrimination against them , in the manner set forth
in the amended remedy section of this Decision
and Order.
Augusto Baluyut
Earl DeCaccia
Dave Finley
Bufus Ford
Gillis Fournier
Benny Gatan
Wilbert Jennings
David Jones Jr.
Jesus Lavenant
Dave Lawler
Raymond Marquez Sr.
Dieter Rabe
Jim Russell
Helmut Sample
Joga Singh
Euvaldo Sisneros
Gerry Stanley
Ron Steel
James Stephens
Fred Whittaker
(b) On request , bargain with the Union as the ex-
clusive representative of the employees in the ap-
propriate unit concerning terms and conditions of
employment and, if an understanding is reached,
embody that understanding in a signed agreement.
(c) Preserve and, on request , make available to
the Board or its agents for examination and copy-
ing, 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 its two facilities in Berkeley, Califor-
nia, copies of the attached notice marked "Appen-
dix." i 2 Copies of the notice, on forms provided by
the Regional Director for Region 32, after being
signed by the Respondent 's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
12 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 Nation-
al 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 "
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discourage membership in Bay
Area District Lodge No . 115, International Asso-
ciation of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization, by un-
lawfully failing to reinstate or otherwise discrimi-
nating against our employees because they have en-
gaged in a protected strike or other concerted ac-
tivity for their mutual aid or protection.
WE WILL NOT assign supervisors or other non-
unit personnel to perform bargaining unit work at
such time, if ever , as a new collective -bargaining
agreement is agreed to.
WE WILL NOT bypass the Union and deal direct-
ly" with employees who are represented by the
Union for purposes of collective bargaining.
WE WILL NOT refuse to bargain collectively in
good faith with Bay Area District Lodge No. 115,
International Association of Machinists and Aero-
space Workers , AFL-CIO as the exclusive repre-
sentative of the employees in the following unit:
. . . employees engaged in the making, manu-
facturing , repairing , dismantling, building,
maintaining , constructing , erecting , assembling
of all tools and dies, machinery , engines,
motors, pumps, and all other metal and plastic
devices , either driven by hand , foot, steam,
electricity , gas, gasoline , naphtha , benzol, oil,
water or other power that comes under the ju-
risdiction of the International Association of
Machinists and Aerospace Workers as defined
in its Constitution as of this date , and the oper-
ation of all tools , machines and mechanical de-
vices ; and all welding used in connection with
such work , and such other classifications as
may be required to properly perform and com-
plete the work or jobs of employees perform-
ing work within the jurisdiction of the Union.
The above jurisdictional claims are to specifi-
cally include the experimental and develop-
ment work on all tools, dies, jigs, fixtures, in-
struments and models and all heat treating
used in connection with such work.
Specifically excluded are:
(a) All employees who are presently represent-
ed by collective bargaining agreements with
other unions.
(b) Supervisors, Foremen, Engineering Person-
nel, and Technical Personnel who do not use
the tools of the trade except in a supervisory
capacity. It is not intended that the foregoing
apply to Leadmen and/or Working Foremen.
(c) Clerical and office employees, professional
personnel, watchmen or guards, and office
janitors, and all other employees, unless they
are covered by an addendum to this Agree-
ment.
WE WILL NOT tell employees there is no more
Union or tell strikers they are wasting their time as
we would never agree to a contract.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer the following employees who en-
gaged in an economic strike beginning May 5,
1986, immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed , dismissing , if necessary , any per-
sons hired to replace them subsequent to the incep-
tion of the strike, and WE WILL make them whole
for any loss of earnings and other benefits suffered
as a result of the discrimination against them, less
any net interim earnings , plus interest:
Augusto Baluyut
Earl DeCaccia
Dave Finley
Bufus Ford
Gillis Fournier
Benny Gatan
Wilbert Jennings
David Jones Jr.
Jesus Lavenant
Dave Lawler
Raymond Marquez Sr.
Dieter Rabe
Jim Russell
Helmut Sample
Joga Singh
Euvaldo Sisneros
Gerry Stanley
Ron Steel
James Stephens
Fred Whittaker
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit.
SKS DIE CASTING & MACHINING,
INC., SKS DIE CASTING & MACHIN-
ING, INC., DEBTOR-IN-POSSESSION
SKS DIE CASTING
Raoul Thorbourne, Esq., for the General Counsel.
Michael W. O'Neil, Esq., of Lafayette, California, for the
Respondent.
Jonathan H. Siegel, Esq., of Oakland, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me at Oakland, California, on
21, 22, and 23 October 1986,' pursuant to a complaint
issued by the Regional Director for the National Labor
Relations Board for Region 32 on 27 June, and which is
based upon a charge filed by Bay Area District Lodge
No. 115, International Association of Machinists and
Aerospace Workers, AFL-CIO (the Union) on 13 May.
The complaint alleges that SKS Die Casting & Machin-
ing, Inc., SKS Die Casting & Machining, Inc., Debtor-in-
Possession (the Respondent) has engaged in certain viola-
tions of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (the Act).
ISSUES
(1) Whether Respondent, between on or about 17
March and 19 March, assigned certain nonunit personnel
to perform bargaining unit work, when a majority of the
unit employees were on layoff status
(2) Whether Respondent, on or about 18 March, acting
through supervisor Fox, bypassed the Union and dealt
directly with unit employees with respect to certain
terms and conditions of employment.
(3) Whether the 2 May order of the bankruptcy court,
pursuant to Section 1113 of the U S. Bankruptcy Code,
authorizing Respondent to reject the collective-bargain-
ing agreement affects the issues contained in this case.
(4) Whether on or about 5 May, certain unit employ-
ees of Respondent engaged in a lawful strike, and if so,
whether the strike was caused or prolonged by Respond-
ent's unfair labor practices, and whether the strikers
were or became unfair labor practice strikers.
(5) Whether Respondent, on or about 5 May, acting
through Attorney Davidson, notified the Union that Re-
spondent would not bargain while the strike was in
progress.
(6) Whether the Union, on or about about 9 May,
made an unconditional offer to return to work on behalf
of the strikers, and if so, whether Respondent has failed
and refused to reinstate the strikers to their former posi-
tions of employment.
(7) Whether Respondent, on or about 11 May, by
letter refused to meet and bargain with the Union.
(8) Whether Respondent, on or about 13 May, encour-
aged employees to resign from the Union by distributing
a leaflet to unit employees which purported to explain
how an employee could resign from the Union.
(9) Whether Respondent, on or about 18 May, through
Supervisor Fox, told a unit employee there was no more
union.
I All dates herein refer to 1986 unless otherwise indicated
379
(10) Whether Respondent, on or about 29 May, acting
through Company President Keating, told a unit employ-
ee that employees were wasting their time and should
not expect a contract from Respondent.
(11) Whether the above-described acts, if committed
by Respondent or its agents, constituted unfair labor
practices.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of General Counsel and Respondent.
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent admits that it is a California corporation
engaged in the manufacture of aluminum and zinc die
cast finish machined components and has a plant located
in Berkeley, California It further admits that during the
past year, in the course and conduct of its business it has
sold and shipped goods or provided services valued in
excess of $50,000 to customers located outside the State
of California. Since 11 March, SKS Die Casting & Ma-
chining, Inc., Debtor-in-Possession (SKS-DIP) has been
duly designated by the United States Bankruptcy Court
at Oakland, California as the debtor-in-possession with
full authority to continue operations and exercise all
powers necessary to the administration of the business of
SKS. Accordingly, it admits, and I find, that it is an em-
ployer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Bay Area District
Lodge No 115, International Association of Machinists
and Aerospace Workers, AFL-CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
In 1975, Jerome Keating purchased Respondent and
became president of the Company At the time of pur-
chase, the Union had represented plant employees for ap-
proximately 20 years. Over those past years, the Compa-
ny and the Union had agreed to a number of collective-
bargaining agreements including one in effect at the time
of purchase by Keating. After Keating purchased the
company, the relationship between labor and manage-
ment continued as before, until approximately 3 years
ago. Then Respondent began to experience financial
problems and this in turn affected the relationship be-
tween management and labor.
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
First, a series of layoffs began. By March, approxi-
mately 100 unit employees had been laid off. No issue is
presented relative to these personnel actions which ap-
parently occurred in accord with relevant provisions of
the labor agreement, by seniority in affected classifica-
tions. Also, by March, management, including Keating,
Richard Fox, then manufacturing manager, Mel Moore,
vice president, and other supervisors and foremen had
experienced two pay cuts in an attempt to correct Re-
spondent's financial problems. Yet more cost cutting
seemed to be required.
The labor agreement then in effect was effective from
20 June 1983 through 19 June (G.C. Exh. la). In an at-
tempt to reduce labor costs specified in the contract,
Keating wrote a letter on 12 February, to Ed Logue Jr.,
a union official. The letter recited in specific detail the
financial problems of the Company, and the results of an
independent business consultant's study relative to the
possible causes of the misfortune; the letter concluded by
requesting the Union begin negotiations to change "the
wage and benefit structure in the existing and follow on
contract" (G.C. Exh. lb).
The above letter was hand delivered to Logue's office.
Union officials read and considered Keating's representa-
tions, and on 19 February, Logue together with Business
Representative Daniel Borrero called a meeting with em-
ployee members to discuss Keating's request. Among
other matters discussed was the fact that in 1984, the
Union had agreed to make wage concessions of $2 an
hour and to forgo certain future raises and cost-of-living
allowances. These sacrifices, like management's two pay
cuts, had not been sufficient to return Respondent to a
healthy state. In this context, the parties exchanged addi-
tional correspondence.
Following the 19 February meeting between union of-
ficials and employee-members, no union position had
been formulated and certainly none had been conveyed
to Respondent, before Keating wrote another letter to
Logue on 20 February. The letter reads as follows:
February 20, 1986
Mr. Ed Logue, Jr.
Directing Business Representative
International Association of Machinists
and Aerospace Workers
Bay Area District Lodge 115
8130 Baldwin Street
Oakland, California 94621
Dear Ed:
This correspondence is forwarded to transmit the
Company's proposed changes to our existing con-
tract and the follow on Company-Union Agree-
ment. I appreciate your quick response to my letter
of February 12th and the willingness of our Union
Employees to consider beginning negotiations early.
The enclosed contract revisions are directed
toward the "economic issues" which are required to
continue [sic] survival of the Company and the em-
ployment of our Union employees.
It is extremely urgent that we meet to begin dis-
cussing the Company's proposal at the earliest pos-
sible time due to our critical financial position. I
will make myself available to meet with you at any
time.
Sincerely,
/s/ Jerry
J. W. Keating
JWK:mm
cc: Gil Fournier, Chief Steward, SKS
Dan Borrero, Business Representative
Mel Moore, SKS
[R. Exh. 1]
On 21 February, Logue responded to Keating 's letter
of 20 February as follows:
February 21, 1986
Mr. J. W . Keating , President
S.K.S. Die Casting & Machining, Inc.
2200 4th Street
Berkeley , CA 94710
Re: Your letters of February 12 and February
20, 1986.
Dear Mr. Keating:
On February 12, 1986 you hand delivered a letter
to my office wherein you made a formal request to
begin early negotiations on our labor Agreement
which expires on June 19, 1986.
In this letter you outlined your impression of the
Company's business and financial condition as justi-
fication for entering into early negotiations and re-
quested that I contact you as soon as possible to
make such arrangements.
On February 19, 1986, myself and Business Rep-
resentative Daniel Borrero called a meeting with
our members, who are employed with your Compa-
ny, to discuss your request.
On February 20, 1986, I was hand delivered a
packet containing eleven pages of Company Con-
tract Proposals with a cover letter which indicated
that I had responded to your letter of February 12,
1986 and expressed willingness to commence early
negotiations.
Please be advised that your communication of
February 20, 1986 was inaccurate, in as much as
this is my first response to you and premature, to
say the least, because at this time we are not con-
vinced that early contract negotiations contain the
solution to our problems.
We do, however, stand ready and willing to meet
with you and discuss any and all difficulties that
S.K.S. Diecasting is experiencing in an effort to
verify and and resolve any genuine problem areas.
Please contact Business Representative Daniel
Borrero to make arrangements for these discussions.
Sincerely,
/s/ Ed Logue, Jr.
Ed Logue, Jr.
Directing Business Representative
EL:ag
SKS DIE CASTING 381
cc: J. Baptista , Adm. Asst.
Daniel Borrero, B.R.
Gil Fournier
D. Rabe
[R Exh. 2]
On or about 27 February, both sides convened to
begin negotiations. Apparently at this time or soon there-
after, both sides stated their basic positions: Keating be-
lieved it was necessary to undertake a two-tier system of
wages by which newly hired production workers would
be paid $4 to $5 per hour, reflecting a wage 50-percent
cut of below present wages. Those employees then em-
ployed and not including employees on layoff status
would continue to receive current wages. The Union
countered by offering to accept a 10-percent wage cut
for everyone , including management.
Both sides opposed the other's proposal. The Union
opposed the two-tier system because it believed that ap-
proach placed an unwarranted burden on employees.
Since it is unlikely that the lower paid employees would
be interested in the Union, the Union also opposed the
proposal on the grounds of its personal interests. Keating
opposed the Union's proposal on the grounds that man-
agement was unwilling to accept a third pay cut. Fur-
ther , by insisting on a two-tier system , Keating must
have recognized the likely damage to the Union's organi-
zational interests and may have welcomed it
On 28 February, the Union requested from Respond-
ent certain corporate financial data. On 3 March, Re-
spondent submitted the requested material. On 6 March,
Moore wrote to the Union requesting, in an urgent
appeal , an immediate meeting to begin negotiations [R.
Exh. 3]. On 14 March, Borrero responded to Keating's
request for early contract negotiations. The letter reads
as follows:
March 14, 1986
Mr, J. W. Keating , President
S.K.S. Die Casting Company, Inc.
2200 Fourth Street
Berkeley , CA 94710
Dear Jerry:
In response to your letter of February 12, 1986,
wherein you requested to begin early contract ne-
gotiations , please be advised of the Unions position
on this matter.
We have carefully reviewed the Company's fi-
nancial position . Included in our investigation were
meetings with Union Bank Officials who carry the
outstanding notes on the Company and consultan-
tion with a third party Certified Public Accountant,
Byrum and Fleming Company.
All information that we have obtained strongly
indicates that even if our members employed by
your company were receptive to a 50 % wage cut, it
would not be sufficient to salvage S.K.S. Die Cast-
ing Company.
Furthermore , in discussion with you, you plainly
stated that you were not willing to make any fur-
ther financial sacrifies.
Therefore, please be advised that the majority of
our members by secret ballot vote, after having
been advised of all the foregoing, have elected not
to enter into early negotiations with your Company.
Sincerely,
/s/ Daniel P.L. Borrero
Daniel P.L. Borrero
Business Representative
DB:ag:opeu -29-aflcio
cc: Ed Logue, Jr. D.B.R.
Gil Fournier, SS LL1518
Dieter Rabe, SS LL284
Max Pallen
Bob Fleming
William Dalton, Union Bank
Mel Moore, S.K.S.
[G.C. Exh. 2]
2. Chapter II reorganization and rejection of the
labor agreement under the U.S. Bankruptcy Code,
and other associated events
Apparently unknown to Borrero when he wrote the
14 March letter recited above was the fact that on 11
March, Respondent had filed with the U.S. Bankruptcy
Court, a petition for reorganization pursuant to chapter
11 of the U.S. Bankruptcy Code. In any event, Keating
wrote his own letter to Borrero on 14 March, although it
was not clear whether Keating had received General
Counsel's Exhibit 2 when he dispatched his letter. Keat-
ing's letter reads as follows:
March 14, 1986
Mr Dan Borrero
Business Representative
Bay Area District Lodge 115
IAM/AW
8130 Baldwin Street
Oakland, California 94621
Dear Dan:
Based on our financial condition and the Union's
refusal to enter into negotiations the company has
taken the following actions:
1. Petitioned the U .S. Bankruptcy Court for pro-
tection under Chapter 11.
2. Terminated all of our hourly employees as of
4:00 p . m. Friday, March 14th.
Please inform all of your members that their last
week 's pay, March 10th thru March 14th, and any,
accurred [sic] vacation pay will be available at the
company office on March 18th from 2 :00 to 4:00
p.m.
Sincerely,
/s/ Jerry
J. W. Keating
JWK:mm
cc: Ed Logue , Directing Business Agent, IAM &
AW
All Union Employees
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bill Dalton , Union Bank
[G.C. Exh. 3]
Despite the clear wording of the letter above, and de-
spite the fact that Keating verbally told employees at a
meeting about 3:30 on 14 March, they were all terminat-
ed, and then distributed copies of General Counsel's Ex-
hibit 3 to them, Respondent took the position at hearing
that Respondent did not terminate employees on 14
March. Witness this testimony of Keating:
Q. All right, in that letter, you tell Mr. Borrero
that you terminated all your hourly employees. Did
SKS terminate its employees on or about March
14th, 1986?
A. No, sir. .. .
Q. All right, Mr. Keating, why, in your letter of
March 14, 1986, did you inform Mr. Borrero that
you had-and-and, for that matter, the-your em-
ployees, because I note that the cc is to all union
employees as shown. Why did you make the state-
ment to Mr. Borrero and to your employees that-
that they were terminated.
A. The word termination was a mistake. It
should have been layoff. The reason we wrote this
letter was because the Company did not have the
money to pay the employees for their work.
[R. Br. 486, 487-88]
Of any issue presented in this case, I find this the easi-
est to resolve: when Keating told employees on 14
March they were terminated and gave them copies of a
letter to that effect, they were terminated!2 Whether this
initial credibility determination affects any substantive
issue in this case will be covered below.
To provide further evidence about the 14 March ter-
minations , General Counsel called as a witness Raymond
Marquez, a machine adjustor for Respondent for 9 years.
On 14 March, he was on vacation, but heard about the
terminations from another employee. Marquez called
Keating to confirm the report and Keating told him it
was true. Keating also said he was starting a team and he
`wanted Marquez to be part of the team . Keating told
Marquez to come in Tuesday, 18 March, to pick up his
pay check and to see him then. About 1 p m. on 18
March, Marquez saw Keating who directed Marquez to
see Fox at another building. At first Fox was talking to
Augie Baluyut, another employee. Later Fox talked to
Marquez about the new terms and conditions of employ-
ment if Marquez were rehired. I will cover the conversa-
tion in detail in the "Analysis and Conclusions" section
of this decision. For now it suffices to say that on 20
March, Marquez returned to work with certain other
employees.
General Counsel called a second employee to testify.
Jesus Levenant had worked at Respondent for 7-1/2
years as a journeyman machinist. After he was terminat-
ed with the other employees on 14 March, Levenant re-
turned to Respondent 's premises on 19 March to see
what was happening. At that time, Levenant observed
2 See Dublin Town Ltd, 282 NLRB 307 (1986)
two foremen performing bargaining unit work. One of
them referred Levenant to Fox, to discuss reemploy-
ment. That afternoon, Levenant talked to Fox relative to
new terms and conditions of employment. Again I will
report the conversation in detail below. For now it suf-
fices to say that Levenant was rehired and worked on 19
and 20 March (Besides Marquez and Levenant, three
other unit employees were rehired about the same time).
Then on 24 March, 19 employees including Marquez and
Levenant were formally rehired by Respondent under
the terms and conditions of the old contract (G.C. Exh.
4). This represented the entire employee complement ter-
minated on 14 March. A 20th unit employee was carried
on long-term disability.
Returning to 19 March, other persons visited the plant
on that day besides Marquez and Levenant Borrero and
another business agent went there and met with Re-
spondent's vice president, Moore, who did not testify.
Moore first stated that since there was no union contract
there anymore, Moore saw no reason for Borrero to be
there. Moore's comment was based on a motion filed by
Respondent's bankruptcy attorney, Kent Davidson,
before the bankruptcy judge, requesting the court to
permit Respondent to reject the collective-bargaining
agreement . In fact, on or about 20 March, the bankrupt-
cy judge had denied Respondent's ex parte motion for
rejection of the labor agreement. Instead the judge di-
rected Respondent and the Union to continue negotia-
tions in good faith, and to return to bankruptcy court
later for possible relief, if negotiations were unsuccessful.
In any event, Borrero insisted to Fox that as of that
moment, the Union still represented employees at Re-
spondent and Borrero further insisted on filing one or
more grievances protesting Respondent's attempts to
deal directly with unit employees and to negotiate sepa-
rately with them, instead of through the Union. Finally,
Moore went to call Keating for further instructions and
upon his return, Moore accepted the grievances from
Borrero.
As noted above, all 19 unit employees were rehired on
24 March (G.C. Exh. 4). According to Keating, this was
done because he had money in the bank due to the rehir-
ing of the initial five employees to complete the produc-
tion process on certain goods. According to the Union,
the rehiring was done as a result of Borrero's grievances.
I credit the Union's theory at this point because it is
clear to me that Respondent's officers believed that the
rejection of the union contract was automatic upon the
filing of Respondent's motion with the bankruptcy judge.
Once Respondent learned that the motion had been
denied pending further negotiations, it had no choice but
to rehire the 19 employees pursuant to the grievances.
Between 20 March and 30 April, Respondent and the
Union met several times for the purpose of seeking
agreement on revising the terms and conditions of the
labor agreement. The bankruptcy judge found that Re-
spondent had negotiated in good faith. On 28 April,
Keating submitted to the union negotiating committee a
final proposal (G.C. Exhs. 5, 9). Keating asked that the
Union submit the proposal to the membership for a vote,
stating that if it was turned down, Keating would contin-
SKS DIE CASTING
ue in bankruptcy and rely on the expected decision of
the bankruptcy judge authorizing rejection of the con-
tract.
On 29 April, the members voted to reject Respond-
ent's final offer. The members also delegated to a com-
mittee of union officials authority to call a strike depend-
ing on what subsequent action Respondent took.
On 30 April, the parties appeared before the bankrupt-
cy judge for a second hearing. Based on the evidence
presented and arguments of counsel, the bankruptcy
judge issued an order on 2 May. In pertinent part, the
Order reads, "Upon due consideration and good cause
appearing, . . . Debtor's motion to reject the collective
bargaining agreement is granted" (G.C. Exh. 6). On 20
May, the bankruptcy judge issued a seven page Memo-
randum explaining the basis for his decision (R. Exh. 8).
On Friday, 2 May, about 3.30 p.m., Keating convened
a meeting of his 19 unit employees to tell them of the
bankruptcy judge's decision . Among other statements al-
leged to have been made by Keating was an announce-
ment that the labor agreement had been rejected and that
anyone desiring to return to work on Monday would be
required to discuss with Fox the new terms and condi-
tions of employment. After the Union confirmed its legal
authority to do so, it called a strike for Monday, 5 May,
and notified members over the weekend to prepare them-
selves for picket duty.
Classification
Specialist &
Machine
Adjuster
Production
Worker
#2
(G C. Exh. 8)
3. The strike, the alleged unconditional offer to
return to work, and other related events
This document should be compared to another document
On 5 May, Keating contacted Davidson, his bankrupt- entitled "Proposed Contract Changes Appendix `A'
cy attorney, to inform him that the Union was on strike. Wages" which was submitted by Keating to the Union as
Davidson promised to call Jonathan Siegel, the Union's part of Respondent's final proposal of 28 April The
attorney then and of record during the hearing. For second document reads as follows:
about 10 minutes, Davidson spoke to Siegel by telephone
in the late morning of 5 May. An unfair labor practice is
alleged to have occurred during the conversation so it
will be considered below. In part, Siegel said the Union
had a right to strike and intended to continue the strike,
which it did.
Also on 5 May, Borrero sent Keating a letter offering
to resume negotiations on a satisfactory agreement, and
reiterating to Keating the Union's view that notwith-
standing Respondent's chapter 11 status and the order of
the bankruptcy judge, ". . . this Union is still the author-
ized bargaining representative for all hourly employees
at SKS Die Casting" (G.C. Exh. 7).
During the morning of 5 May, Keating posted to the
doors of Respondent's two buildings being picketed a
document entitled "Proposed Wages for SKS Employ-
ees" dated 2 May 1986. The document reads as follows.
Cur- Com-rent Union
Classification Name Hour- p o Pro-
ly l
posal
osap
ate
Tool and
Die
Maker Dieter Rabe $17 75 $17 75 $13 10
Journeyman
Classification Name
Cur-
rent
Hour-
Com-
po
Union
Pro-
ly
r
posal
Rate posal
Tool and
Die
Maker Dieter Rabe $1775 $17 .75 $13.10
Journeyman
Machinist Dave Finley 12 77 12 .00 11 32
Helmut Sample 12 77 1200 11 32
Jesus Lavenant 14 77 14 77 11 32
Earl DeCaccia 12.77 12.00 11 32
Dave Lawler 12 77 12 50 11 32
Die Caster Beufus Ford 10 80 1000 9 59
Wilbert Jennings 10 80 1000 9.59
Dave Jones 10.80 1000 9.59
Gerry Stanley 10.80 1000 9 59
Jimmy Stevens 10 80 1000 9.59
Ron Steel 10 80 10.00 9 59
Specialist &
Machine
Adjuster Jim Russell 11 34 9 50 9.54
Augie Baluyut 12.00 1200 9 54
Gil Fournier 10 93 9.50 9 54
Ed Sisneros 11.14 11 00 9.54
Benny Gatan 10 74 9 . 50 9.54
Joga Singh 10 . 74 9 50 9 54
383
ame
Cur-
rent
Hour-
ly
Rate
Com-
pany
Pro-
posal
Union
Pro-
posal
Dave Finley 12 77 1200 11.32
Helmut Sample 12 77 1200 11.32
Jesus Lavenant 14.77 14 77 11.32
Earl DeCaccia 12 77 1200 11 32
Dave Lawler 12 77 12 50 11 32
Beufus Ford 10 80 1000 9 59
Wilbert Jennings 10.80 1000 9 59
Dave Jones 10 80 1000 9 59
Gerry Stanley 10 80 10.00 9 59
Jimmy Stevens 10 80 10.00 9 59
Ron Steel 10 80 1000 9 59
Jim Russell 11 34 9 50 9 54
Augie Baluyut 1200 12.00 9 54
Gil Fournier 10 93 9 50 9 54
Ed Sisneros 11 14 1100 9.54
Benny Gatan 10 74 9 50 9 54
Joga Singh 10 74 9 50 9 54
Roy Marquez 11.49 11 00 9 54
Fred Whittaker 11.90 900 8.00
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cur-
rent
Classification Name Hour-
ly
Rate
Com-
pany
Pro-
posal
Union
Pro-
posal
Roy Marquez 11.49 1100 9 54
Production
Worker
#2 Fred Whittaker 11.90 900 8.00
(G.C. Exh 8)
When pickets observed General Counsel's Exhibit 8
appended to the front doors of Respondent's plants, they
were confused by and incredulous of Respondent's ap-
parent willingness to pay higher wages than the Union
had allegedly been demanding at the bargaining table.3
Shortly after General Counsel 's Exhibit 8 was posted,
Borrero arrived on the picket line and examined the doc-
ument . Many of the pickets expressed a favorable reac-
tion to the wage rates expressed in the document and re-
quested Borrero to confirm that Keating would in fact
pay the wage rate as indicated . Borrero agreed to the
pickets' request but denied that Keating had ever offered
at the bargaining table to pay the wage rates indicated.
A few minutes after Borrero had arrived on the picket
line, Keating appeared and alleged to Borrero and the
pickets that he had been willing to pay the wage rates on
General Counsel 's Exhibit 8 at least since 28 April, and
was still willing to pay these rates. The pickets reiterated
their willingness to return to work for those wage rates
and questioned Borrero's alleged failure to inform them
of Keating 's final offer . Borrero then left the picket line
and returned to the union office to recover and distribute
to members General Counsel 's Exhibit 9, an accurate
statement of Respondent 's final proposal.
On 9 May , Borrero wrote a letter to Keating which
the General Counsel and the Union contend is an uncon-
ditional offer to return to work (G C. Exh. 10). On 11
May, Keating replied to that letter and the 5 May letter
refusing to continue meeting with the Union at this time
(G.C. Exh 11). Since these letters constitute important
evidence relevant to a major issue in the case , I will re-
produce both and review other relevant evidence in the
"Analysis and Conclusions " section of this decision. For
now, it suffices to say that Keating did not reinstate the
strikers pursuant to the alleged unconditional offer to
return to work. Rather , Keating began to process a
number of applicants who responded to a newspaper ad
placed on 6 May. The ad (G.C. Exh. 17), which appar-
ently ran for three days, sought applicants for all unit
classifications:
Tool & Die Maker-Journeyman Experienced in
Die Casting Molds-$17.00/Hr.
3 Initially, the General Counsel alleged in the complaint that Respond-
ent had committed an unfair labor practice by publishing G C Exh 8
After further investigation and after considering arguments of Respond-
ent's counsel , Michael O'Neil , the General Counsel deleted that portion
of the complaint (R Br 69-70)
Maintenance Machinist-Combination Electrical-
Mechanical-Hydraulic-$12.00/Hr.
Maintenance Helper -Trainee-$8 .00/Hr.
Die Caster Experienced-Aluminum-$10.00/Hr
Production Specialist Set up automatic chuckers
and N/C mills. Mechanical Inspector-$9.50/Hr.
Production Workers:
Level 2-Experienced-Semi-skilled-$5.00/Hr.
Level 1-Trainee-Unskilled-$4.00/Hr. 4
As noted above, the Union filed charges with the
Board on 13 May. Also on 13 May, the Union notified
Keating by telegram that the Union considered the 5
May strike to be an unfair labor practice strike in protest
of, among other matters, Respondent 's refusal to bargain
with the Union for a new collective -bargaining agree-
ment (G C. Exh. 16). On 20 May , Keating wrote a letter
to Borrero offering to resume negotiations with the
Union on 4 June (R. Exh . 4). The date was acceptable,
but when Keating went to the Union hall for the first
poststrike negotiating session , Borrero was not there.
Keating waited about 20 minutes and then left. On 9
June , Borrero wrote a letter apologizing to Keating for
being late and explaining that he had been delayed due
to other negotiating commitments . Alternative future
dates for negotiations were requested (R. Exh. 5).
Meanwhile , in addition to the "New Hires" attracted
by the newspaper ad referred to above, some of the
strikers decided to cross the picket line and return to
work. Two of the five strikers who returned to work
were called as witnesses by Respondent. The first to tes-
tify was Frederick Whittaker, Respondent 's employee
since September 1963.
Whittaker could not recall whether anyone from the
Union told him about a union offer to return to work.
However, he did recall that ' Keating had offered to
return strikers to work at the rates posted on General
Counsel 's Exhibit 8. Whittaker claimed that union offi-
cials generally kept him ignorant of developments once
the strike began. Although he attended union meetings,
he never asked questions about strike-related matters.
Rather he merely awaited critical information about re-
turning to work . This, he testified , never came.
As a result of certain developments, Whittaker further
testified , he began to lose interest in the strike and to
consider returning to work. The first of these develop-
ments was the change in union picket signs from "On
Strike" to "Unfair Labor Practice." Whittaker claimed
the latter indicated a work stoppage other than a bona
fide strike. He claimed an inability to understand exactly
what was involved with the new signs. His testimony on
this point was rendered incredulous by cross-examination
showing that Whittaker distributed union handbills to the
public explaining exactly why the Union believed Re-
spondent had committed unfair labor practices (C.P.
4 During the hearing, the Union offered evidence that in placing the
ad, Keating may have violated Sec 973 of the California Labor Code be-
cause he did not indicate in the ad that a labor dispute was in progress
(C P Exh 2) I find this matter to be insignificant and irrelevant to any
issue in this case It will not be further considered
SKS DIE CASTING
Exh. 1). Before he distributed the handbills, Whittaker
read them.
Next, Whittaker began to note Keating's almost daily
greeting to pickets, which included statements and ques-
tions, such as "why are you out here," "the jobs are
inside," "you have a job anytime you want to come
back," and "the new wage schedule is posted on the
door "
Finally, Whittaker, along with all other strikers re-
ceived a letter from Keating dated 13 May (Whittaker
didn't recall receiving it, but I find that he did). The
letter purported to give "a status report on the compa-
ny's operations, financial position, and information re-
garding how you may return to work." Appended to the
two page letter is a third document purporting to be a
"Cash Flow Statement," and a fourth document purport-
ing to be a model letter for a striker to use in notifying
the Union of his resignation from the Union, presumably
before returning to work (G.C. Exh. 13). These docu-
ments will be reproduced below as they relate to impor-
tant issues in this case.
On or about 6 June, Whittaker signed a document
prior to returning to work. The document used for all
returning strikers reads as follows:
SKS EMPLOYEES RETURNING TO WORK:
I understand that I am returning to work at SKS as
a Regular Employee under the following condi-
tions:
(1) There is no union contract and there will be
no union dues taken from my pay check.
(2) Since there is no contract there is no seniori-
ty.
(3) My work will be evaluated on my skill, abili-
ty, and productivity.
(4) Employment as a regular employee does not
give me a life time employment gurantee . I recog-
nize I can be terminated at any time if SKS con-
cludes there is just cause for termination.
(5) I have received , read , and understand SKS
Company Work Rules.
(6) My Medical Benefits Insurance package will
start the first day of the month following my return
to work.
Starting Shift
Date
Classifica-
tion
Rate
(Witness) Signature
[R. Exh. 6]
For personal reasons, Whittaker did not actually return
to work until 16 June. On 15 June or 16 he also resigned
from the Union , using the form supplied by Keating as
part of General Counsel's Exhibit 13 (R. Br . 327-328).
The second striker who returned to work was David
Fenley, Respondent 's employee since November 1951.
Fenley testified that he had been opposed to the strike
from the beginning , but went out with the others on 5
May. Fenley , Whittaker , and the others who returned,
385
Gerald Stanley, Ronnie Steele, and Wilbert Jennings, de-
cided to seek information from Keating as to how they
could return to work and escape a union fine. It was in
response to these and similar inquiries that Keating draft-
ed General Counsel's Exhibit 13. Fenley testified that
Keating never suggested resigning from the Union,
rather it was the employees' own decision
On or about 10 June, Fenley and the other returning
strikers, except for Whittaker, went to the Union and re-
signed. Then they reported for work at Respondent.
Like Whittaker, Fenley was required to sign an identical
form before returning to work (R. Exh. 7). All strikers,
save Whittaker, returned to work on 10 or 11 June (R.
Exh. 11).
In addition to the five returning strikers, Respondent
rehired 12 employees who had been on layoff. Their
dates of rehire ranged from 7 May through 14 October
(R. Exh. 11). Another category of employee, already re-
ferred to was "New Hires." Respondent hired 24 such
employees between 6 May and 13 October (R. Exh. 11).
All "New Hires" were required to sign a different form
from that required for returning strikers.5 This form
reads as follows:
I understand that any misrepresentation as [sic]
omission of the facts called for on my application
for employment is cause for dismissal. I authorize
investigation of all statements contained in this ap-
plication
I understand that as a new employee I will be a
probationary employee for 90 (ninety) working
days. During the probationary period I will not be
eligible for group insurance, hospitalization, surgical
and medical coverage, vacation and holiday pay
until successfully completing my probation.
I understand that I am applying for a job at SKS
as a regular employee for employees who have
gone out on strike. Employment as a regular em-
ployee does not give me a life time employment
guarantee. I recognize I can be terminated at any
time if SKS concludes there is just cause for termi-
nation.
I have received, read, and understand SKS Com-
pany Work Rules.
(Witness) Signature
COMPANY USE ONLY.
Starting Date Shift
Classification Rate of Pay
Foreman
[R. Exh. 16]
The final category of employees to be noted was "Ter-
minated Employees." These employees numbered 22 and
S It is not clear what form, if any, the returning laid-off employees had
to sign
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the 'date of their terminations ranged -'from 8 May
through 2 October (R. Exh. 12)
B Analysis and Conclusions
1. Were nonunit personnel performing bargaining
unit work when a majority of the unit employees
were on layoff status
After Respondent terminated its employees on 14
March, a number of persons went to Respondent's prem-
ises for one reason or another the following week. Bor-
rero, Fournier, the shop steward, Marquez, and Leven-
ant, all testified that they observed nonunit employees
performing unit work. Keating admitted that this oc-
curred, because "the bargaining unit employees could
not do the management operations but the supervisory
staff could do the bargaining unit work" (R. Br. 493).
In its brief, Respondent does not contest this allega-
tion; rather Respondent contends that on 2 May, when
the bankruptcy judge authorized Respondent to reject
the contract, "the rejection is retroactive to the day
before the reorganization petition itself was filed. . . .
Respondent's alleged violation of assigning nonunit em-
ployees to perform bargaining unit work lacks merit, for
.there was no contractually defined bargain unit work at
the time. Under the relation-back doctrine, in mid-
March, there was no contract at all" (B . 16-17).
_As authority for Respondent's novel argument, it cites
Collier on Bankruptcy, IT 365.08 (15th ed. 1983). I turned
to this authority, and found that it has nothing to do
with labor agreements, but deals generally with executo-
ry contracts under the bankruptcy code. For all cases
filed after 10 July 1984, section 1113 of the Bankruptcy
Code is the exclusive legal authority governing the rejec-
tion of labor agreements. Nowhere in that statute is the
concept of retroactive application discussed. On the con-
trary, section 1113(f) prohibits debtors in possession from
any unilateral termination or alteration of the contract
prior to compliance with section 1113. This overrules the
majority opinion in NLRB v. Bildisco & Bildisco, 465 U.S.
513 (1984), and means the contract is enforceable and
binding on both parties until rejection or modification is
approved by the Court 6
In light of the above, I reject Respondent's contention
as without merit and contrary to law. See Otten Truck
Line, 282 NLRB 494 ( 1986). In agreement with the Gen-
eral Counsel, I find that by assigning supervisors and
other nonunit employees to perform unit work, Keating
violated Section 8(a)(3) of the Act in that he was dis-
criminating against bargaining unit employees who were
then represented by and members of the Union.7 At the
time this unlawful discrimination occurred, the unit em-
ployees had either been unlawfully terminated, because
Keating mistakingly believed that the contract had been
rejected by the bankruptcy judge, or were on long-term
layoff. Marlan Lewis Inc., 270 NLRB 432, 433 (1984).
6 1 Norton Bankruptcy Law and Practice, § 23 22, compare procedure
for cases in which bankruptcy petition was filed on prior to enactment of
§ 1113 Edward Cooper Painting, 273 NLRB 1870 fn 6 (1985)
Sec 8(a)(3) prohibits discrimination in regard to "any terms or condi-
tion of employment to encourage or discourage membership in any labor
organization " Desert Inn Country Club, 282 NLRB 667, 668 (1987)
In further agreement with the General Counsel, I note
that other than the unsuccessful defense based on the
order of the bankruptcy judge, Respondent has offered
no other defense to justify its conduct. In sum , I find that
Respondent violated both Section 8(a)(1)8 and Section
8(a)(3) for reasons stated above. Respondent also violat-
ed Section 8(a)(5) because Respondent transferred unit
work to nonunit union employees without bargaining
with the Union, when such transfer constituted a manda-
tory subject of bargaining. Dahl Fish Co., 279 NLRB
1084 (1986).
2. In mid-March, did Respondent bypass the Union
and deal directly with unit employees with respect
to certain terms and conditions of employment
Once again it is unnecessary to dwell at length on the
issue. The facts are clear and not contested. Following
the 14 March termination, both Marquez and Levenant
had separate conversations with Fox at the plant Fox
showed both unit employees a document entitled "Old
Employees." The document reflects changes in the terms
and conditions of employment with respect to medical
insurance , vacation, holiday and payment for overtime
work (G.C. Exh 12) None of these changes were to the
employees' benefit.
In reviewing the testimony of Fox, I credit his testi-
mony only in part. All agree that three other employees
were recalled with Marquez and Levenant. They were
Stanley, DeCaccia, and Baluyut, none of whom were
called as witnesses . Fox began his testimony by referring
to the prior layoffs-I found above that employees had
been terminated-and the subsequent recall of the five
employees. Admitting that contrary to the labor agree-
ment, the five were not called back by seniority, Fox
also testified that he told Marquez, Levenant, and one or
two others that the Company was preparing new work
rules and it was possible they would be asked to take a
slight wage cut. For any questions or to satisfy any
doubts about returning to work, Fox referred the em-
ployees to the Union.
When the conversations between Fox and the various
employees occurred, Fox was under the mistaken impres-
sion that the contract had been set aside . In its brief (Br.
14), Respondent admits to confusion and being wrong
about the status of the union contract during this time.
Respondent denies, however, breaking the law. As proof,
Respondent points to Fox's referral of employees to the
Union if they had any questions.
In Medo Photo Supply Corp. v. NLRB, 321 U.S. 678,
683-685 (1944), the Court states that "the National
Labor Relations Act does not countenance negotiating
with individuals when they have bargaining representa-
tives." In the instant case, I find that Respondent,
through its supervisor and agent Fox, violated Section
8(a)(5) by direct dealing with employees. General Electric
Co., 150 NLRB 192 (1964), enfd 418 F.2d 736 (2d Cir.
8 Sec 8(a)(1) prohibits interference with, restraint, or coercion of em-
ployees in the exercise of their Sec 7 rights Desert Inn Country Club,
supra
SKS DIE CASTING
1969). I also find that the communications in issue tended
to undermine the Union's representative status.9
I agree with Respondent that the confusion about the
status of the labor agreement did exist in mid-March, and
that Fox believed the bankruptcy judge had rejected the
contract However, the General Counsel need not show
bad faith in support of a refusal-to-bargain allegation.
'Tower Books, 273 NLRB 671 (1984).10 Furthermore,
under either NLRB v. Bildisco, supra, or the subsequent
amendments to the bankruptcy code (11 U.S.C § 1113),
Respondent's duty to recognize and to bargain with the
certified bargaining agent of its employees is unaffected
by the filing under chapter 11 of the bankruptcy code.
See Karsh's Bakery, 273 NLRB 1131 (1984); Otten Truck
Line, supra, at 494.
3. Did Respondent's employees engage in a strike; if
so when and what kind of strike
I find that on 5 May, Respondent's employees began
an economic strike. The immediate cause of the strike
was the Union's protest of Respondent's rejection of the
labor agreement pursuant to authority of the bankruptcy
judge (G.C. Exh. 6). Employees have a right to strike
over wages or working conditions. See NLRB v. Insur-
ance Agents, 361 U S. 477, 488-496 (1960) Strikers retain
their status as employees during the strike and the em-
ployer must normally restore strikers to their former po-
sitions after the strike. See NLRB v. Fleetwood Trailer
Co., 389 U.S. 375, 378 (1967). The General Counsel con-
tends that the initial economic strike was converted, as
early as 5 May, but not later than 11 May into an unfair
labor practice strike (Br. 24).
I will determine below that Davidson committed no
unfair labor practice in his 5 May conversation with
Siegel. I will also determine below that Respondent did
commit an unfair labor practice in its 11 May letter to
Borrero refusing to negotiate (G.C. Exh. 11).
For now, I find that on or about 11 May, the econom-
ic strike was converted to an unfair labor practice strike
as a result of General Counsel's Exhibit 11. 1 note the
Union's telegram on 13 May, protesting Respondent's
unfair labor practice (G.C. Exh. 16). I also note the
change in the Union's picket signs about the same time,
to reflect unfair labor practices. This is adequate proof of
the causal connection. See Robbins Co., 233 NLRB 549
(1977); Winter Garden Citrus Products v. NLRB, 238 F.2d
128 (1956).
Generally it is important to determine the status of
strikers because while both economic and unfair labor
practice strikers must first offer unconditionally to return
to work, the former are entitled to reinstatement only if
they have not been permanently replaced at the time of
their offer to return, and even if replaced, remain em-
ployees entitled to reinstatement on departure of replace-
ments. Laidlaw Corp., 171 NLRB 1366 (1968) enfd. 414
9 In addition to unlawful direct dealing , Respondent also made unilat-
eral changes in the terms and conditions of employment at a time when it
was obligated to bargain with the Union For this reason , Respondent
also violated Sec 8 (a)(5) of the Act Master Slack, 230 NLRB 1054
(1977), enfd 618 F 2d 6 (6th Cir 1980)
10 Moreover , there is no suggestion in this case that the Union had lost
majority status NLRB v Tom Johnson, Inc, 378 F 2d 342 (9th Cir 1967)
387
F.2d 99 (7th;Cir. 1969), cert. denied 397 U.S. 920 (1970).
Unfair labor practice strikers, on the other hand, are enti-
tled to immediate reinstatement. La Famosa Foods, 282
NLRB 316, 330 (1986).
Since I will find below that the Union did not make an
unconditional offer to return to work, the above findings
will stand as moot unless and until it is found on appeal
that an unconditional offer to return was made. Then,
these finding will constitute alternative findings of fact
and conclusions of law in this case.
4. Did Attorney Davidson commit an unfair labor
practice in his telephone conversation of 5 May,
with Attorney Siegel
On 5 May, Keating was surprised to see his employees
on strike rather than at work. He called Davidson, his
bankruptcy attorney, to get an explanation. Davidson
promised to call Siegel, the Union's attorney and then
call Keating back. In the late morning of 5 May, David-
son talked to Siegel by telephone, and began by asking
why the Union was on strike. Siegel stated that once the
labor agreement had been rejected, the Union was free
to strike. In reply to Davidson's claim that the strike was
unlawful, Siegel gave Davidson certain case citations
which suggested the strike was lawful. Then in the
course of a heated discussion about the issues, Davidson
allegedly told Siegel that "we're certainly not going to
bargain with you while you're on strike." When Siegel
immediately accused Davidson of committing an unfair
labor practice, the conversation degenerated into name-
calling.
Davidson's version of the conversation is similar, but
not identical He flatly denied making the statement at-
tributed to him by Siegel. What Davidson did say had to
be considered in the context of Siegel's initial comments.
First, Siegel allegedly told Davidson that the Union
would not accept the changes in the contract proposed
by Respondent, because that would cause problems with
other members of an employer group. The Union would
rather see Respondent put out of business before it
would accept Respondent's proposed terms. To this, Da-
vidson jokingly replied, "I guess we don't have to nego-
tiate then." It was at this point, according to Davidson
that Siegel accused him of committing an unfair labor
practice. Then Siegel allegedly threatened "to bury Re-
spondent," and "to close the company." -
In resolving this credibility question, I begin by noting
Siegel's dual role as an advocate and witness . The Board
has permitted this procedure, but some courts have criti-
cized it. See Sun World, Inc., 282 NLRB 785, 788 (1987).
More to the point, I recognize that the Board has held
that an employer commits an unfair labor practice by re-
fusing to bargain while a lawful strike is in progress. Pe-
cheur Lozenge Co., 98 NLRB 496, 497 (1952), enfd. as
modified 209 F.2d 393 (2d Cir. 1953). In this case, how-
ever, I will recommend to the Board that this allegation
be dismissed.
The Board has held that statements by counsel in the
course of their representational duties are attributable to
the client as an admission against interest Electrical
Workers IBEW Local 3 (Burroughs Corp.), 281 NLRB
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1099, 1101, (1986). In this case, however, I cannot find by
a preponderance of the evidence that Davidson made the
statement attributed to him by Siegel. The statement that
Davidson admits making is no more than a reasonable re-
sponse to the alleged statement of Siegel that the Union
had no intention of changing its basic bargaining posi-
tion. It is equally unclear to me exactly what Siegel said
and I make no findings with regard to that nor do I pur-
port to ascertain whether Davidson was provoked in any
statement he may have made. I find simply that there is
insufficient evidence to attribute an unfair labor practice
to Respondent based on anything Davidson may have
said to Siegel.
In light of that finding, it is unnecessary to determine
whether Davidson was acting in his representational
status when he allegedly made a certain statement to
Siegel about labor matters.
5. Did the Union make an unconditional offer to
return to work on behalf of the strikers
Although I have decided above that the strikers in this
case became and remain unfair labor practice strikers,
that decision does not affect the present issue. Regardless
of how classified, strikers must have made an uncondi-
tional offer to return to work, before an employer incurs
any liability for refusing to reinstate them. However, the
offer need not come from the striker individually; it may
be submitted on behalf of a group of employees by the
union as their agent. Trinity Valley Iron & Steel Co. v.
NLRB, 410 F.2d 1161, 1171 (5th Cir. 1969).
In the instant case, the unconditional offer to return
was allegedly made in a letter, dated 9 May, from Bor-
rero to Keating. The letter reads as follows:
May 9, 1986
Mr. Jerome Keating, President
S.K S. Die Casting & Machining, Inc.
2200 Fourth Street
Berkeley, CA 94710
Dear Mr. Keating-
The information that I received from you is that
you are willing to pay the wages you have posted
on the front door of S.K.S. Also, you stated that
you are willing to negotiate with the Union.
The Union is willing to negotiate immediately
and have our members return to work under the
posted wages, while we continue to negotiate a new
Contract.
I am available at your convenience.
Thank you.
/s/ Daniel P.L. Borrero
Daniel P.L. Borrero
Business Representative
DB:ag :opeu-29-aflcto
cc: Ed Logue, Jr. D.B.R.
Jonathan Siegal w/encl.
All S.K.S. members
[G.C. Exh. 10]
To place the letter in proper context, I note that it was
sent after a conversation between Borrero and Keating
on the picket line on 5 May, the first day of the strike.
Based on the evidence about that conversation, I find
that the statements in the first paragraph of General
Counsel's Exhibit 10 are accurate. In the second para-
graph, the letter purports to offer to return to work un-
conditionally, and to resume negotiations. For now, I am
concerned only with the offer to return.
In explaining his failure to reinstate the strikers, Keat-
ing testified he didn't consider Borrero's letter to be an
unconditional offer to return. According to Keating, the
letter was confusing for several reasons. First, the letter
did not have the exact words, "an unconditional offer to
return to work" (R. Br. 589). I reject the first reason, be-
cause the offer need take no special form; it need only
communicate to the employer the employees' desire for
reinstatement . NLRB v. Fleetwood Trailer Co., supra at
381. Next, Keating claimed to be confused because the
Union was distributing handbills (C.P. Exh. 1) accusing
him of refusing to negotiate, while the letter admits that
he had offered to negotiate (R. Br. 587-588). This has
nothing to do with the offer to return so it must be re-
jected. Finally, Keating also testified that he was con-
fused because he viewed General Counsel's Exhibit 10 as
an attempt by the Union to return production workers at
a $9-per-hour rate rather than the $4-to $5-per-hour rate
proposed by Respondent. Keating admitted on cross-ex-
amination tht he knew General Counsel's Exhibit 10 was
referring to the strikers going back to work at wages
contained on the posted schedule of General Counsel's
Exhibit 8 (R. Br. 591). Yet as I read General Counsel's
Exhibit 10, not only the strikers, but others would also
return to work at the higher wages.
Like Keating, I am concerned about the use of the
term "members" in General Counsel's Exhibit 10. As
noted in the facts section above, as of 9 May, approxi-
mately 100 members of the Union were on long-term
layoff from Respondent. None of them were participat-
ing in the strike. Accordingly, the term "members" and
"strikers" represented two distinct groups of employees.
While Keating knew that the term "members" covered
the strikers as he admitted, he had no way of knowing
whether the term "members" also covered the laid-off
employees.
In his brief, the General Counsel characterizes any al-
leged confusion over the term "members" as an "after-
the-fact attempt by Respondent to create a false issue to
cover up its unlawful conduct" (Br. 26). To support his
argument, the General Counsel cites the case of Home
Insulation Service, 255 NLRB 311 (1981). At footnote 8
of its opinion in that case, the Board states that where
reinstatement offers are made on behalf of "members,"
and similar collective designations or lists of employees,
the Board does not infer that the reinstatement of one is
conditional on the reinstatement of all.
The instant case may be distinguished from Home In-
sulation Service, because as noted above, here the terms
"members" and "strikers" unlike the usual case, refers to
two distinct classes of employees. Yet Home Insulation
Service, supra at 312 goes further to state that if an ambi-
guity remains unclarified due to Respondent's decision to
ignore the offer and not seek clarification, Respondent
SKS DIE CASTING
may not be heard to complain if such uncertainty is re-
solved against its interests. In the instant case, Keating
never requested a clarification from Borrero.11 Rather, 2
days later on 11 May, Keating wrote a letter to Borrero
which reads as follows.
May 11, 1986
Mr. Daniel P.L. Borrero
Business Representative
Bay Area District Lodge 115
IAM and AW
8130 Baldwin Street
Oakland, California 94612
Dear Mr. Borrero:
Thank you for your letters of May 5th and 9th
offering to resume negotiations towards reaching a
mutually acceptable collective bargaining agree-
ment. At this time the Company feels that it would
be counter productive to continue meeting for the
following reasons:
1. The Union Negotiating Committee has failed
to understand the critical financial condition of the
Company despite reviews and meetings with your
Financial Consultant Mr. Fleming, CPA; our Man-
agement Consultant Mr. Bledsoe; and, the Union
Bank Vice President Mr. Dalton.
2. The Union's Negotiating Committee has re-
fused to allow our employees to vote on the Com-
pany's latest offer which was the maximum eco-
nomic and benefit package the Company could pro-
vide and still remain in business.
3. The Company's operating and financial condi-
tion has been seriously impaired by the arbitrary
strike action directed by the Union.
4. The Company has accured [sic] over 200 appli-
cations from well qualified people willing to work
at the wages much less than were offered to our
employees [sic].
Sincerely,
/s/ Jerry
J. W. Keating
JWK:mm
cc: Robert Bledsoe, Durkee, Sharlit Associates
William Dalton, Union Bank
Negotiating Committee-4
Mel Moore, SKS
[G.C. Exh. 11]
By failing to respond at all to the Union's alleged un-
conditional offer to return, Keating has further confused
the situation. 12 At hearing, Keating explains his rationale
11 In its brief (R Br 28) Respondent contends that because the Union
confined to picket after the alleged offer to return to work, this is evi-
dence that the offer was conditional . However, in NLRB v W C
McQuaide, Inc, 552 F 2d 519, 529 (3d Cir 1977), an offer to return to
work made by a union was held to be "unconditional " despite the fact
that its members continued to picket the employer ' s main entrance In
reaching my decision on the Union 's offer , I discount postoffer picketing
as a factor
12 In a curious argument (R Br 27), Respondent contends that Keat-
ing's failure to say anything about reinstating strikers is a factor in sup-
389
for General Counsel's Exhibit 11: He did - not want to
appear overly anxious, so he decided to delay bargaining
for a while (R. Br. 584-85). Again this does not address
the Union's offer to return.
To provide additional facts and circumstances, I turn
to Borrero's testimony for his explanation of the term
"members." He intended "members" to mean all those
covered by the contract, including laid-off employees,
who had 3 years recall rights.13 Thus, Borrero offered to
return on the grounds that all production workers-not
just those on strike-would be paid $9 per hour (R. Br.
83, 90-91).
In deciding this issue I note that the various factors do
not point with unanimity in one direction or the other.
Cf. Merchants Home Delivery Service v. NLRB, 580 F.2d
966, 973 (9th Cir. 1978). However, I find that notwith-
standing Keating's failure to request a clarification, Bor-
rero's letter (G.C. Exh. 10), both on its face and in the
context of Borrero's testimony at hearing, was not an un-
conditional offer to return to work. See Bryan Infants
Wear Co., 235 NLRB 1305 (1978).14 Thus, the implied
condition was for Keating to rehire all "members" in-
cluding those nonstriking members on lay off, and to pay
all production workers in accord with General Counsel's
Exhibit 8, thereby abandoning his proposal to pay newly
hired production workers at $4 to $5 per hour. In this
case, then, there was more than an ambiguity. Rather it
was clear that Borrero's letter was conditional-as he
testified. Therefore, I find Keating had no duty to have
made inquiry to clarify the offer.
Before leaving this issue I consider one last point. In
some cases, the Board finds that it is unnecessary for
strikers to make an unconditional offer to return to work
on the grounds that such application would be futile.
Moore Business Forms, 224 NLRB 393 409 (1976), enfd.
in part, 574 F.2d 835 (5th Cir. 1978); Vorpal Galleries,
227 NLRB 446 fn. 2 (1976). General Counsel does not
raise this issue . Yet, because I have found or will find in
this decision that Respondent committed certain unfair
labor practices, I am well-advised to consider the issue of
futility.
I find that the Union was not excused from making an
unconditional offer to return to work on the grounds of
futility. The Union felt that it would not compromise on
the two-tier wage issue. Keating felt as strongly that
two-tier wages were necessary to return the Company to
financial stability. Until Keating abandoned his conten-
tion, Borrero was unwilling to end the strike.15 In Barry-
Wehmiller Co, 271 NLRB 471, 472 (1984), the Board
states:
port of Respondent's claim that the Union's offer was conditional To the
contrary, I find that the omission is a factor in support of the General
Counsel's claim
13 On 9 May, when Borrero made the alleged unconditional offer to
return, the labor agreement had been rejected, so the 3-year recall rights
to which Borrero referred in his testimony did not exist
14 Compare Pecheur Lozenge Co, supra, Western Equipment Co, 152
NLRB 1014 (1965), enfd 357 F 2d 661, 662 (9th Cir 1966)
15 Indeed, I am advised at hearing that the strike is continuous, al-
though by now a number of strikers have resigned from the Union and
returned to work
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
[S]ection 8(d) does not "compel either party to
agree to a proposal or require the making of a con-
cession . ..." Thus, the Board does not, "either di-
rectly or indirectly, compel concessions or other-
wise sit in judgment upon the substantive terms of
collective bargaining agreements . . . ." 16
In light of the above, I will recommend to the Board
that this allegation be dismissed.
6. Did Respondent unalwfully refuse to negotiate in
its 11 May letter to Borrero
In the preceding section , I have recited Keating's 11
May letter to Borrero (G.C. Exh. 11), and included
Keating 's rationale for sending the letter . On 20 May,
Keating sent another letter to Borrero . It reads as fol-
lows.
May 20, 1986
Mr. Dan Borrero
Business Representative
Bay Area District Lodge 115 (IAM)
8130 Baldwin Street
Oakland, California 94621
Dear Dan:
Please refer to your letter of May 5th requesting
a negotiation meeting with the Company.
If the date of June 4th is still available, SKS will
meet with you at 5:00 p.m. to receive any new pro-
posals which the Committee may wish to submit for
review.
Please contact me if the above date and time are
not convenient to your schedule.
Sincerely,
/s/ Jerry
J. W. Keating
JWK:mm
cc: Negotiating Committee-4
Mel Moore, SKS
[R. Exh. 4]
I cannot ignore the timing of the letter when com-
pared to the charges filed with the Board on 13 May
(G.C. Exh. 14a) In the context of this case, I find that
Keating's offer to resume negotiations was made in re-
sponse to the Union's charges. Whether I am correct on
that point or not however, I further find that Respond-
ent's refusal to negotiate even for a period of only 9 days
constitutes a violation of Section 8(a)(5) of the Act.
In support of this conclusion, I begin with Karsh's
Bakery, supra, 273 NLRB at 1131, wherein the Board
noted with reference to an employer who had rejected
its labor agreement pursuant to order of a bankruptcy
court,
At the same time, the Court in Bildisco reaffirmed
an employer's general obligation to recognize and
bargain with the statutory bargaining agent of its
employees. This duty is independent of the rejection
16 See also Massillon Community Hospital, 282 NLRB 675, 676 (1987)
or renegotiation of a contract within the framework
of a bankruptcy petition.
With this statement of the employer's responsibility in
mind, I turn back to General Counsel's Exhibit 11. The
first reason given for refusing to negotiate refers to Re-
spondent's poor financial condition, which is legally in-
adequate for refusal to negotiate. International Distribu-
tion Centers, 281 NLRB 742, 743, (1986). The second
reason claims that the Union did not permit a ratification
vote on Respondent's last offer. The record shows that
employees did vote and rejected the offer. The third
reason refers to the effects of a strike. Since the strike
was legal, the resulting financial pressure constitutes no
defense to a failure to bargain. Finally, that Respondent
may have received 200 applications for its jobs is com-
pletely irrelevant. That Respondent offered to resume
negotiations 9 days later while each and every reason
listed in General Counsel's Exhibit 11 still existed is still
further evidence of Respondent's intent to frustrate the
bargaining process. Finally, Respondent's failure to state
in the letter when it expected to resume negotiations is
additional evidence supporting the violations.
Two Board decisions have special application to this
issue In Exchange Parts Co., 139 NLRB 710 (1962), enfd.
339 F.2d 829 (5th Cir. 1965), the Board noted the em-
ployer's willful avoidance of meetings in finding the
8(a)(5) violation. In Henry Hald High School Assn., 213
NLRB 463 (1974), the employer, like Respondent here,
did not flatly refuse to negotiate. Rather, it merely de-
layed bargaining pending a court decision on govern-
ment aid to parochial schools. The Board affirmed the
violation.
7. Did Respondent encourage its employees to
resign from the Union by distributing certain
information to them
On 13 May, Respondent issued a certain letter to strik-
ing employees. Appended to it were documents purport-
ing to show Respondent's cash flow and a model letter
for employees to use in resigning from the Union. Since
the alleged violation is based in part on these documents,
I recite the letter and the model attached to it, but not
the cash flow statement.
May 13, 1986
All SKS Striking Employees:
This letter is forwarded to provide each of you
with a status report on the Company's operations,
financial position, and information regarding how
you may return to work.
Before providing this information, however, I
wish to emphasize that the Company respects your
right to strike or not to strike, and to observe the
picket line or not to observe the picket line, and to
be a union member or not be a union member. SKS
also emphasizes that in this country of ours, no one
can stop you from working, and no one can force
you to be a member of a union
The Company is operating-not in business as
usual manner-but production is proceeding and we
SKS DIE CASTING
now have employees in every classification. As you
know a number of these people are former workers
who have returned to the Company despite the
strike or the picket line.
We continue to establish our financial position
with Union Bank We have explained this to your
Union. In the opinion of your union's legal counsel,
the Company cannot continue to operate. SKS, the
Bankruptcy Court, and Union Bank disagree. All of
us think the company will survive. I have every in-
tention of keeping the Company alive. The enclosed
"Cash Flow" statement is a projection for the next
four months. SKS's current back log for production
order is over $1.3 million and the new tooling
orders of $550,000.
If you decide to work for the Company during
this strike, it is your business whether or not you
resign from the IAM and AW Union. We will not
ask you about the status of your union membership.
You are not required to resign from the union in
order to work here during this strike, or any other
time
As a general legal principle, union members are
free to resign their membership. After a member ef-
fectively resigns, a union cannot enforce a fine or
other penalty on the former member for any work
he or she performs at a struck company.
Some of you have also asked what will happen to
you if you return to work during the strike and the
Company later signs a contract with the union. We
have been asked whether there is a possibility that a
new contract with the union might require all em-
ployees to be members
Most union contracts, including our former con-
tract with the IAM & AW, say that employees must
"join" the union and remain union "members" in
order to work at the Company. Also, you have
probably heard of employees who were fired be-
cause they did not pay union dues.
Well, despite what a contract between a compa-
ny and a union says, federal labor law says no em-
ployee has to actually join a union and pay "union
dues." Employees can meet contract requirements
by paying what are called "agency fees" to a union.
The amount of money for these fees is exactly the
same as union dues. And so long as an employee
pays this money, he or she cannot be fired because
of a contract that says the employee must be a
union "member."
The contract at SKS has been rejected by the
Federal Bankruptcy Court. Therefore, employees
are not required to pay anything to any union to
work at the Company right now.
After the strike ends, if the Company signs a con-
tract with the union that says employees must pay
union dues , by law, you cannot be fired if you pay
the dues or agency fees which is the same amount
of money. Agency fees are sometimes chosen by
employees who do not wish to become union mem-
bers subject to the union' s rules Earlier in this
letter, I told you about a union 's inability to disci-
pline or fine people who are not members. The
391
same rules apply after a contract is signed. Employ-
ees are not required to actually join the union after
a contract is signed. All you might be required to
do is pay the union the same amount of money as
union members, and, again, as long as you do this, it
is illegal for the union to even try to get you fired.
Also, employees who pay agency fees instead of
union dues are covered by the contract in exactly
the same way as union members. Agency fee payers
get the same wages, benefits and working condi-
tions as union members. Furthermore, if an agency
fee payer has a grievance, the union must process
the grievance in exactly the same way it processes
union member grievances.
As for the question about a way to escape possi-
ble union fines [sic]. As I've said throughout this
letter, unions cannot discipline people who are not
union members. Employees can resign from union
membership simply by sending a letter or telegram
to the IAM & AW Union stating they resign.
"Withdrawal" from the union is not sufficient. The
employee must explicitly "resign" in order to
escape union fines and penalties. The enclosed form
is an example of the type of letter you should send
if you want to resign. If you send a letter, you
should wait three days after you send the letter
before returning to work. If you hand deliver the
letter, you should wait one full business day before
returning to work.
If you have any questions about this letter, please
call me.
If you have decided to return to work, call the
Company so we can schedule your return. All calls
and questions will be handled in confidence.
Sincerely,
SKS DIE CASTING & MACHINING, INC.
/s/ Jerry
J.W. Keating
Date
Bay Area District Lodge 115
IAM and AW
8130 Baldwin Street
Oakland, California 94621
ATTN: Lewis Coleman, Secretary
I HEREBY NOTIFY YOU THAT EFFECTIVE
IMMEDIATELY, I HAVE RESIGNED FROM
INTERNATIONAL ASSOCIATION OF MA-
CHINISTS AND AEROSPACE WORKERS
DISTRICT 115.
Signature
Name
[G C. Exh. 13]
In discussing this issue, I note first the General Coun-
sel's response to Respondent's motion for bill of particu-
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lars (G.C. 'Exh. 14n), paragraph 6._ There, the General
Counsel alleges that the 13 May "letter is unlawful in the
context of all other unfair labor pratices committed by
Respondent."
In its brief on page 19, the General Counsel elaborates
on his theory.
[w]hile arguably not unlawful per se, [it] is nonethe-
less unlawful in the context of this case, where the
letter was sent in and around the time Respondent
had committed a number of unfair labor pratices.
The only reasonable inference the employees could
draw from Respondent's letter is that they had to
resign from the union in order to return to work
and . . . this is precisely what the five strikers who
returned to work all resigned before returning [sic].
The letter is therefore unlawful as it was calculated
to erode support for the Union.
For several reasons, I must reject the General Coun-
sel's argument and recommend that this allegation be dis-
missed . First, the General Counsel has failed to show the
connection between certain other unfair labor practices
and the instant allegation . Indeed , I have dismissed some
of those alleged. Therefore, in this case, the context ar-
gument simply does not apply.
Further, I note that of the eight employees who decid-
ed to return to work, at least three did not so without
resigning from the Union . Internal charges were brought
against them and are pending. Of the five who did resign
from the Union before returning to work, two were
called as witnesses by Respondent. Both Whittaker and
Fenley made it clear that they initiated contact with
Keating as to how they could return to work and avoid
fines from the Union. The letter in question was a rea-
sonable response to those inquiries . See Towne Plaza
Hotel, 258 NLRB 69 (1981), and the cases cited at page
79. Most of the strikers simply ignored General Coun-
sel's Exhibit 13. In sum, I find no violation here.
Q. Right. But he did not say there's no more
union , did he?
A. He said there was no more union.
Q Are you absolutely certain of that?
A. Yes, I am.
Q. What make you so certain of that after all
these months that he said, in addition to there's no
union contract, there is no union?
A. Because that was one of the first things that
he stated to me when I went into his office
Q. On June 10, 1986, you gave an affidavit to an
NLRB investigator, is that correct, sir?
A. Yes, it is.
[R. Br. 199-200]
Q. Now, I'd like you to take all the time that you
wish and look at that affidavit and tell the judge
whether you ever said in that affidavit that Mr. Fox
told you there's no more union.
JUDGE STEVENSON: All right. Now, the pending
question is, from this lawyer: do you see in your af-
fidavit where it says Mr. Fox said "and there's no
more union?"
THE WITNESS: Yes, there is.
JUDGE STEVENSON: All right. He says the answer
is yes What's the next question.
MR. O'NEIL: I have no further questions.
[R. Br. 200-202]
On redirect-
Q. Would you read that whole sentence that
starts, "Fox told me that. .."
A. "Fox told me that they had received their
Chapter 11 to the court already and there was no
more union."
[R. Br. 202-203]
8. Did Fox and Keating make certain statements
to employees
On 18 March, Marquez went to Respondent's premises
to discuss with Fox the possibility of returning to work.
During that conversation, when Fox was under the mis-
taken impression that the labor agreement was no longer
in effect, Fox said there was no more Union. Although
Fox denied making the statement , I credit Marquez and
find him to be a very believable witness. A long-term
employee of Respondent, he was one of five trusted and
reliable employees called back after the 14 March termi-
nations. Later when the legal status of the labor agree-
ment was clarified, all employees terminated on 14
March were recalled (G.C. Exh. 4). While I rely as usual
on demeanor to make my credibility resolution, the
record also contains ample evidence demonstrating his
candor. Witness this exchange on cross-examination:
Q. Did Mr. Fox say that this document takes the
place of the union contract?
A. Yes, he did because there was no more-he
stated there was no more union contract.
In Medallion Kitchens, v. NLRB, 806 F.2d 185, 191
(8th Cir. 1986), the court discussed principles of law ap-
plicable to this issue:
Section 7 of the Act guarantees employees "the
right to self-organization to form or assist labor or-
ganizations" and "to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the purpose
of collective bargaining." 29 U.S.C. § 157. Section
8(a)(1) ensures that section 7 rights are protected by
making it an unfair labor practice for an employer
to interfere with , restrain or coerce employees' ex-
ercising these rights. The test for a violation of sec-
tion 8(a)(1) "is not whether an attempt at coercion
has succeeded or failed but whether the employer
engaged in conduct which reasonably tends to inter-
fere with, restrain or coerce employees in the free
exercise of their rights under Section 7." NLRB v.
Intertherm, Inc., 596 F 2d 267, 271 (8th Cir. 1979)
(quoting Russell Stover Candies, Inc. v. NLRB, 551
F.2d 204, 208 (8th Cir. 1977)).
SKS DIE CASTING
I find that Fox's statement violated Section 8(a)(1) of
the Act.
I turn now to consider statements allegedly made by
Keating to Levenant. Levenant testified that on 29 May,
while picketing Respondent 's premises , he encountered
Keating and had a conversation with him . After first
agreeing to give Fournier a note from Keating , Levenant
then asked Keating what he thought about the contract.
Keating responded by saying the pickets were wasting
their time and they should not expect a contract from
him. Keating denied making this remark ; I find that he
did make it, and thereby violated Section 8(a)(1) of the
Act. William B. Allen, 267 NLRB 700, 707 (1983), affd.
758 F 2d 1145 (6th Cir. 1985).
Before concluding , I should comment generally on
Keating's credibility. I found him to be an intense person
reflecting the financial pressures of his ailing business. In
an attempt to be charitable, I attribute his lack of candor
to these factors which may have influenced his judg-
ment. However, no amount of possible insight into Keat-
ing's motives can diminish the impact of his testimony.
To be blunt, I found him to be argumentative, evasive,
hostile, and belligerent. For example, shortly after begin-
ning his direct examination , General Counsel made a rea-
sonable objection relative to a point of order. Keating re-
sponded, by throwing exhibits on the floor (R. Br. 481--
2). When I had an opportunity to ask questions, I asked
Keating to justify offering higher wages to striking em-
ployees than the Union had allegedly requested at the
bargaining table, in light of the Respondent's severe fi-
nancial problem. This simple question led to a torrent of
irrelevant, rambling, and patently absurd testimony (R.
Br. 679-685).
In fairness to Keating , I must point out that in general,
he quickly returned to order when corrected. The Gen-
eral Counsel reminds me (B. 15, fn 22) that while the
chapter 11 proceeding was filed in March, the plan of ar-
rangement due in 90 days has not yet been filed. This, of
course, is a matter for the bankruptcy judge and I do not
consider the alleged delay further. However, as a result
of the overall impression of Keating's testimony, I simply
did not believe much of what he said. This assessment is
reflected , as indicated , in this decision.
CONCLUSIONS OF LAW
1. Respondent SKS Die Casting & Machining, Inc.,
and SKS Die Casting & Machining, Inc., Debtor-in-Pos-
session is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union, Bay Area District Lodge 115, Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The following employees of Respondent constitute
separate units appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
employees engaged in the making , manufacturing,
repairing , dismantling , building, maintaining, con-
structing , erecting , assembling of all tools and dies,
machinery , engines, motors, pumps, and all other
393
metal and plastic devices, either driven by hand,
foot , steam , electricity , gas, gasoline , naptha, benzol,
oil, water or other power that comes under the ju-
risdiction of the International Association of Ma-
chinists and Aerospace Workers as defined in its
Constitution as of this date, and the operation of all
tools, machines and mechanical devices; and all
welding used in connection with such work, and
such other classifications as may be required to
properly perform and complete the work or jobs of
employees performing work within the jurisdiction
of the Union. The above jurisdictional claims are to
specifically include the experimental and develop-
ment work on all tools, dies, jigs, fixtures , instru-
ments and models and all heat treating used in con-
nection with such work.
Specifically excluded are.
(a) All employees who are presently represented
by collective bargaining agreements with other
unions.
(b) Supervisors , Foremen , Engineering Personnel,
and Technical Personnel who do not use the tools
of the trade except in a supervisory capacity. It is
not intended that the foregoing apply to Leadmen
and/or Working Foremen.
(c) Clerical and office employees, professional
personnel, watchmen or guards, and office janitors,
and all other employees, unless they are covered by
an addendum to this Agreement.
4. The Union has been the duly recognized collective-
bargaining representative of all employees in the unit de-
scribed above at all times relevant to this case.
5. The Union has been, and is now, the certified and
exclusive collective-bargaining representative for all em-
ployees in the unit described above.
6. By assigning supervisors and other nonunit person-
nel to perform bargaining unit work on or about 17 and
19 March, Respondent violated Section 8(a)(1), (3), and
(5) of the Act.
7. By bypassing the Union and dealing directly with
unit employees with respect to certain terms and condi-
tions of employment, Respondent violated Section 8(a)(5)
of the Act.
8 Respondent's employees began an economic strike
on 5 May, the strike was converted to an unfair labor
practice strike on or about 11 May, as a result of Re-
spondent's unfair labor pratice found herein.
9 By refusing to negotiate in its 11 May letter to the
Union, without valid reason, Respondent violated Sec-
tion 8(a)(5) of the Act.
10. By telling employees there was no more Union and
by telling strikers they were wasting their time as they
should not expect a contract from it, Respondent
through its supervisors violated Section 8(a)(1) of the
Act.
11. The unfair labor practices set forth above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
12. Other than specifically found herein, Respondent
has committed no other unfair labor practices.
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having concluded that Respondent has engaged in
certain unfair labor practices, I find it necessary to order
it to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
[Recommended Order omitted from publication.]