Branch International Services

National Labor Relations Board - Board Decisions

Apr 15, 1993

310 N.L.R.B. 1092 (N.L.R.B. 1993)

1092
310 NLRB No. 180
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 rul-
ings, findings, and conclusions demonstrate bias and prejudice. On
careful examination of the judge’s decision and the entire record, we
are satisfied that these contentions are without merit.
2 The Respondent excepts, inter alia, to the judge’s failure to dis-
miss the complaint allegations related to the charge filed in Case 7–
CA–31758 on 10(b) grounds. The Respondent claims that dismissal
of these allegations is proper solely because it purportedly did not
receive a copy of the April 11, 1991 charge prior to the issuance
of the consolidated complaint on June 18, 1991. As more fully de-
scribed in fn. 1 of his decision, the judge made several handwriting
comparisons which led to his finding that the Respondent had actual
receipt of the charge on April 16, 1991. In rejecting the Respond-
ent’s 10(b) argument, we find it unnecessary to rely on the judge’s
handwriting/analysis or his specific finding of an April 16 receipt of
the charge by the Respondent. Rather, we note that the Respondent
does not dispute its actual receipt of the June 18 consolidated com-
plaint and the June 21 facsimile transmission of the charge and that
both of these dates fall within the 6-month time period prescribed
by Sec. 10(b). See Buckeye Plastic Molding, 299 NLRB 1053
(1990). We, therefore, find no merit in the Respondent’s exception.
We note that there are no exceptions to the judge’s discussion in
which he concluded that he improvidently granted the General Coun-
sel’s permission to amend the complaint at the hearing and to allege
a violation of Sec. 8(d) of the Act based on an automatic contract
renewal theory.
1 Respondent admits that, as alleged, the original charge in Case
7–CA–31616 was filed by Local No. 267, International Union, Al-
lied Industrial Workers of America, AFL–CIO (the Union or the
Charging Party), on March 5, 1991, and served by certified mail on
Respondent, Branch International Services, Inc., on or about March
7, 1991. Although the consolidated complaint fails to allege the fur-
ther fact, the index and description of the documents in G.C. Exh.
1 and particularly G.C. Exhs. 1(c) and (d) show that an amended
charge in Case 7–CA–31616 was filed by the Union on March 7,
1991, and served on Respondent by certified mail on or about March
8, 1991. In view of Respondent’s failure to object to the receipt in
evidence of G.C. Exhs. 1(c) and (d), and in view of the affidavits
of service and green Postal Service receipt cards attached thereto, I
find that the amended charge in Case 7–CA–31616 was filed and
served as above noted.
The consolidated complaint also alleges the April 11 filing and
April 15, 1991 service of a charge by the Union in Case 7–CA–
31758. Respondent’s answer denies that it was ever served with that
charge prior to the issuance of the consolidated complaint. Further,
Respondent asserts (R. Br. p. 2) that it did not receive a copy of
that charge nor did it learn about it until June 18, 1991, when it re-
ceived service of the consolidated complaint carrying the two charge
numbers of the caption. Consistent with Respondent’s pleaded de-
nial, Respondent’s president, Charles Garavaglia, testified (Tr. 560),
after examining a signature on the Postal Service green card showing
Respondent’s receipt of the charge in Case 7–CA–31758, that he did
not recognize the signature; that he knows the signatures of the per-
sons who worked for Respondent; that they were not the signatures
of any of these persons who had authority to receive mail on behalf
of Respondent and that no authorized signature was appended to the
green card (Tr. 560–561).
Respondent argues, consistent with President Garavaglia’s testi-
mony, that the presumption of delivery of mail processed by the
Postal Service has been rebutted and that since there was no proof
of service of the charge, and there being no further testimony of
such proof, the compliant allegations supported by the charge in
Case 7–CA–31758 must be dismissed, being issued in violation of
Sec. 10(e) of the Act.
On such a record, therefore, I have examined the signature on the
green Postal Service card apparently showing receipt of the charge
in Case 7–CA–31758 (G.C. Exh. 1(f)) and have compared that sig-
nature with the signatures on Postal Service green cards which Re-
spondent admits having received either explicitly or by its above
failure to deny. In short, I have compared the admitted green card
signatures on G.C. Exhs. 1(b) and (d) with the contested signature
on G.C. Exh. 1(f).
I find that all signatures flow from the same person. I further con-
clude that since Respondent admits having received the original
charge (G.C. Exh. 1(a)) by virtue of the green card receipt signed
in G.C. Exh. 1(b), and since the same signatures appear on all three
green cards, that Respondent, contrary to Garavagalia’s specific testi-
mony, had actual receipt of G.C. Exh. 1(f) on or about April 16,
1991 (notwithstanding of course, that the underlying affidavit of
service by mail is dated April 12, 1991). As the trier of fact, I am
legally competent to make the signature comparisons. See Loy Food
Stores, 259 NLRB 305 fn. 2 (1981); Fed.R.Evid. Sec. 901(b)(3); and
Branch International Services, Inc. and Local No.
267, International Union, Allied Industrial
Workers of America, AFL–CIO and William
R. Lange. Cases 7–CA–31616 and 7–CA–31758
April 15, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 25, 1992, Administrative Law Judge Rob-
ert W. Leiner issued the attached decision. The Re-
spondent filed exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and has decided to af-
firm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Branch International Serv-
ices, Inc., Auburn Hills, Michigan, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
John Ciaramitaro, Esq. for the General Counsel.
William M. Saxton, Esq. and Linda Deitch, Esq. (Butzel
Long), of Detroit, Michigan, for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This con-
solidated matter was heard in Detroit, Michigan, on Decem-
ber 16–18, 1991, on General Counsel’s consolidated com-
plaint, dated June 18, 19911 which alleges, in substance, that
1093BRANCH INTERNATIONAL SERVICES
Action Auto Stores, 298 NLRB 875 (1990), enfd. 951 F.2d 349 (6th
Cir. 1992); Auto Workers Local 259 (Atherton Cadillac), 276 NLRB
276, 293 and cases cited therein (1985).
In any event, the underlying original charge in Case 7–CA–31616,
alleging violation of Sec. 8(a)(5), which Respondent concedes that
it timely received (R. Br. p. 24, fn. 18), is sufficiently broad (‘‘the
‘above-named employer has bargained in bad faith and is engaged
in illegal lock-out’’’) to support all allegations in the consolidated
complaint.
2 Respondent also admits that Charles Garavaglia, president, and
Joe Pulis, plant manager, are its supervisors and agents within the
meaning of Sec. 2(11) and (13) of the Act.
Branch International Services, Inc. (the Respondent) violated
Section 8(a)(1), (3), and (5) of the Act by instituting an un-
lawful lockout commencing March 5, 1991; violated Section
8(a)(5) of the Act in refusing to negotiate and bargain with
respect to certain grievances; and, independently, violated
Section 8(a)(1) of the Act by unlawfully soliciting represent-
atives of a labor organization (Local 124, IBT) to organize
replacement employees and offering assistance to the labor
organization.
The consolidated complaint alleges and Respondent admit-
ted that a certain collective-bargaining agreement binding
Respondent and the Union expired by its terms on March 4,
1991. At the opening of the hearing, however, over Respond-
ent’s objection, I permitted General Counsel to amend the
consolidated complaint (General Counsel having provided
prior notice to Respondent therefore) by eliminating the alle-
gation of the expiration of the contract, by substituting the
assertion that the contract automatically renewed itself from
year-to-year and that the lockout therefore also violated Sec-
tion 8(d) of the Act. (Consolidated complaint par. 23; G.C.
Exh. 2.) Thereafter, Respondent duly withdrew its admission
and pleaded a denial to that amended allegation.
Respondent’s answers, both written and pleaded at the
hearing, were timely, denied certain allegations of the con-
solidated complaint, and its amendments, admitted other alle-
gations, but denied the commission of unfair labor practices.
At the hearing, all parties were represented by counsel,
were given full opportunity to call and examine witnesses, to
submit relevant oral and written evidence, and to argue orally
on the record. At the close of the hearing, the parties waived
final argument and elected to submit posthearing briefs
which have been carefully considered.
On the entire record, including the briefs, and on my most
particular observation of the demeanor of the witnesses as
they testified, I make the following
FINDINGS OF FACT
I. RESPONDENT AS STATUTORY EMPLOYER
The complaint alleges, Respondent admits, and I find, that
at all material times Respondent, an Indiana corporation
maintaining a place of business in the city of Auburn Hills,
Michigan, is engaged in the business of leasing employees
to other employers and is engaged in interstate commerce or
serving as a critical link in interstate transportation of freight
and commodities. Respondent admits that in the year ending
December 31, 1990, a representative period of its operations,
in the course and conduct of its business operations, it pro-
vided employee leasing services valued in excess of $50,000
directly to customers located outside the State of Michigan
which customers annually purchased goods and materials
valued in excess of $50,000 which were shipped directly to
their Michigan facilities from points located outside the State
of Michigan. I accept Respondent’s further concession and
find that, at all material times, it has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and I so find.
II. THE UNION AS STATUTORY LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that
Local No. 267, International Union, Allied Industrial Work-
ers of America, AFL–CIO (the Union or Charging Party) is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Pleadings and Background2
The consolidated complaint alleges and Respondent admits
that the following unit of its employees constitutes a unit ap-
propriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees employed by Respondent and leased to
National Metal Processing Inc. but excluding guards
and supervisors as defined in the Act.
The consolidated complaint, however, also alleges, and
Respondent also admits (consolidated complaint par. 19):
On or about December 5, 1990, Respondent . . . and
the Charging Union entered into an agreement whereby
Respondent recognized the Charging Union as the ex-
clusive collective-bargaining representative of the em-
ployees in the unit set forth [above] and assumed a col-
lective-bargaining agreement between Atlantic and the
Charging Union which by its terms was effective from
March 4, 1988 to March 3, 1991.
The above-described representational relationship between
the Union and Respondent grew out of the following cir-
cumstances:
On January 30, 1974, as a result of a Board-conducted
election, the Union was certified as the 9(a) statutory rep-
resentative of the employees of National Metal Processing,
in the following unit:
All production and maintenance employees, including
truckdrivers and shipping and receiving employees, em-
ployed by the Employer at its 3105 Beaufait Street, De-
troit, Michigan, location; excluding office clerical em-
ployees, guards and supervisors as defined in the Act
[Case 7–RC–12145; R. Exh. 2].
National Metal Processing, Inc. (National) along with three
other separately incorporated employers at or near the same
Beaufait Street, Detroit location, are wholly owned subsidi-
aries of Meridian National Corporation (Tr. 378; 403). All
such subsidiaries are engaged directly or indirectly in the
steel business; National Metal Processing ‘‘pickles’’ steel for
use as car bumpers.
Commencing in or about 1988, National no longer directly
employed its unit production and maintenance employees;
1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 As appears in the text, the only perceived differences are that the
unit described in the agreement does not specify the location or ad-
dress of the included unit employees and also adds to the excluded
categories the category ‘‘professionals.’’ With regard to the included
categories, the categories appearing in the agreement are identical to
those appearing in the Board certification of 1974. In fact, Respond-
ent’s answer (par. 11) asserts that the unit pleaded in the complaint
merely describes the contract unit. I conclude that, notwithstanding
the pleadings, and in view of the answer, the unit which appears in
the agreement (G.C. Exh. 4) is the ‘‘appropriate unit’’ in this case
(Tr. 35).
4 The collective-bargaining agreement also includes both a check-
off provision and a 31-day union-security provision (secs. 1.4; 2.1).
rather, commencing on or about March 4, 1988, it leased em-
ployees from Atlantic Western Personnel Leasing Corp., a
supplier of leased employees. Those leased employees were,
or became, represented by the Union and their terms and
conditions of employment were memorialized in a collective-
bargaining agreement (G.C. Exh. 4) which, by its terms, was
to expire March 4, 1991.
The 1988–1991 Collective-Bargaining Agreement
Between Atlantic Western Personnel Leasing
and the Union
By virtue of section 1.2 of the agreement (G.C. Exh. 4),
the employer (Atlantic Western) recognized the Union as the
sole bargaining agent of employees in a unit substantially the
same as that defined in the 1974 Board certification (R. Exh.
2).3
SECTION 1.2 The term ‘‘employees,’’ as used in this
Agreement, shall include all production and mainte-
nance employees including truckdrivers and shipping
and receiving employees. Excluded are all of its clerical
employees, guards and supervisors and professionals as
defined in the Act. It is understood by all parties that
the Company will retain the control and right to up
grade the complete plant during the life of this agree-
ment.4 [Emphasis in the original.]
The agreement (G.C. Exh. 4) contains separate and sub-
stantially different wage rates for production, maintenance
and shipping and receiving employees: the maintenance, and
shipping and receiving employees, in particular, enjoy a sub-
stantially greater wage scale than production employees.
By article XIV, the agreement provides for a production
‘‘incentive program.’’ Production employees actually en-
gaged in the production process received incentive payments
based upon production in an 8-hour shift either on the basis
of ‘‘racks’’ handled or ‘‘tonnage’’ produced (sec. 14.3). The
agreement specifically provides that only employees engaged
in the production process on either a full-time or part-time
basis receive incentive pay (sec. 14.2; 14.2).
Article XV of the agreement relates to ‘‘termination’’:
SECTION 15.1 This agreement shall remain in full
force and effect until March 4, 1990 [extended by the
parties to March 4, 1991], inclusive and shall automati-
cally renew itself from year-to-year thereafter unless at
least 60 days and not more than 90 days before the ter-
mination date or anniversary date of this agreement, ei-
ther party gives notice to the other of the desire to
amend, add to, terminate, or subcontract from this
agreement. If such notice is given, the parties shall,
within a reasonable time thereafter, enter into negotia-
tions. If the parties do not arrive at a mutually satisfac-
tory agreement on the proposed amendments or addi-
tions, by the termination date or anniversary date of this
agreement, this contract shall continue in full force and
effect until such agreement upon five (5) days’ written
notice.
Sometime after execution of the above collective-bar-
gaining agreement, Atlantic Western went out of business
and Primary Services, Inc. succeeded Atlantic Western as the
lessor of employees to National. Primary Services, Inc. con-
tinued to be bound by the collective-bargaining agreement.
On or about May 29, 1990, Respondent purchased Primary
Services’ customer list, one of the customers being National
Metal Processing Inc. By early June 1990, Respondent and
National Metal Processing agreed that National Metal Proc-
essing would thereafter lease employees from Respondent
and that Respondent would provide such employees to Na-
tional (Tr. 403–405). At or about the same time, in a meeting
between Respondent’s president, Garavaglia, and the union
representative, Garavaglia told the Union that he would as-
sume the collective-bargaining agreement between Western
and the Union (Tr. 47). Thereafter, by letter dated July 5,
1990, Respondent notified the Union that it had voluntarily
assumed the collective-bargaining agreement between the
Union and Atlantic Western. On August 9, 1990, Respondent
and National Metal Processing entered into a formal agree-
ment under which National Metal Processing would lease its
production, supervisory, maintenance, and other employees
from Respondent (G.C. Exh. 6). While the Respondent con-
siders the desires of National Metal Processing, Respondent
makes the final determination with regard to its bargaining
demands and positions concerning wages, hours, benefits,
and other terms and conditions of employment between Re-
spondent and the Union. There is no suggestion on the
record that National Metal Processing enjoys a legal status
with regard to control over the terms and conditions of em-
ployment of employees working on its premises so as to
make it a single or joint employer with Respondent, nor has
General Counsel made any such suggestion.
Thereafter, at a grievance meeting held on December 5,
1990, Respondent formally recognized the Union, executing
a document assuming the contract between Atlantic Western
and the Union with no changes (G.C. Exh. 5; Tr. 45–47; Tr.
423–425). Respondent concedes that the actual recognition
occurred on June 14, 1990, the subsequent execution of the
formal recognition being a confirmation of the prior agree-
ment of June 14, 1990 (Tr. 46).
Collective Bargaining Between the Parties
On or about October 12, 1990, Local Union President Ar-
thur Evans telephoned Respondent’s president, Charles
Garavaglia, and asked to reopen the contract to clear up al-
leged contract inequities and to start negotiations for a new
contract. Garavaglia conceded that Evans stated that he de-
sired to reopen the old contract and not terminate the existing
agreement regardless whether there was bargaining for a new
contract (Tr. 568).
Garavaglia agreed to open the contract for negotiations at
any time or place so that they could come to an agreement
1095BRANCH INTERNATIONAL SERVICES
5 It was at this collective-bargaining session that Respondent pre-
sented the Union with its formal assumption without change of the
existing contract, originally between Atlantic Western and the Union.
National Metal was also a signatory to this document presented by
Respondent to the Union.
6 Sec. 8(d) of the Act, in pertinent part, states:
the duty to bargain collectively shall also mean that no party to
such contract shall terminate or modify such contract, unless the
party desiring such termination or modification—
(1) Serves a written notice upon the other party to the contract
of the proposed termination or modification 60 days prior to the
expiration date thereof . . . .
(2) Offers to meet and confer with the other parties for the
purpose of negotiating a new contract or a contract containing
the proposed modifications . . . .
they could all live with. Garavaglia and Evans, in a subse-
quent grievance meeting of late November 1990 again dis-
cussed reopening after which Garavaglia notified (G.C. Exh.
7) the Union that ‘‘Branch International Services Inc. is will-
ing to commence negotiations immediately on a new Collec-
tive Agreement for employees’ contracted to National Metal
Processing.’’ The letter thereafter states that Garavaglia
would be the chief negotiator assisted by Joseph Pulis and
requested the names of the union negotiators and the nature
of the Union’s ratification process. The letter stated, how-
ever, that the negotiations were to be for a limited time only,
to be completed no later than December 14, 1990, unless
otherwise agreed by the parties. Finally, the letter states that
if no new agreement is reached, the ‘‘present agreement
would continue to its actual termination date with no strike,
slow down or lockout permitted by either party.’’
The Collective Bargaining of December 5, 1990
On December 5, 1990, the parties met in collective bar-
gaining pursuant to the terms of the reopening agreement.
President Garavaglia and Joseph Pulis, a Respondent em-
ployee assigned to be plant manger at National Metal, rep-
resented Respondent. William F. Lange (director of region 6
of the Charging Party’s International Union), Local President
Evans and two employees (Givhan and Campbell) rep-
resented the Union. At this session, Respondent presented the
Union with a complete contract proposal which Respondent
described, article by article. The union representatives made
no comment, said that they would review the proposals and
respond.5 The union representatives told Garavaglia that they
didn’t think that Respondent’s ‘‘proposal was going to fly
early’’ (Tr. 59).
In any event, following this meeting, the Union, on De-
cember 11, 1990, notified Respondent that the Union’s com-
mittee had reviewed Respondent’s contract proposals and
concluded that the Union did not ‘‘find [further] negotiations
to be beneficial at this time. Therefore, we will act in accord-
ance with the expiration date of the current Labor Agree-
ment, and begin negotiations at that time’’ (G.C. Exh. 8).
On the same day that the Union wrote to Respondent,
above, that the Union would await the termination date of
the contract, the parties held a grievance meeting (Tr. 229–
230). Union President Evans repeated to Garavaglia the
Union’s rejection of the Respondent’s contract proposals and
that the Union would wait until the expiration of the contract
for further contract negotiations. Garavaglia told Evans that
when contract negotiations were resumed, Respondent would
make the same contract proposal that the Union had rejected
(Tr. 230).
The Misdirected Union Notice of Termination of the
Collective-Bargaining Agreement
As above noted, the collective-bargaining agreement to
which the parties were bound expired March 4, 1991.
The Union maintains an office file indicating the day on
which the Union was to give notice of contract termination
under Section 8(d)(1) and (2) of the Act: the statutory re-
quirements of notice of termination and the commencement
of negotiations for a new collective-bargaining agreement.6
There is no dispute that approximately 15 days prior to
January 4, 1991 (January 4, 1991, is 60 days prior to the ex-
piration date of the collective-bargaining date, March 4,
1991), Lange, on behalf of the Union, sent a letter by cer-
tified mail to Garavaglia stating its desire to terminate the
collective-bargaining agreement and begin negotiations on
the new agreement (G.C. Exh. 9; Tr. 170). Unfortunately,
Lange’s secretary addressed this notice to National Metal
Processing, Inc. rather than to Respondent. No copy was sent
to Respondent (Tr. 170). Lange testified that he first discov-
ered the error, upon checking his file, on January 4, 1991,
at which time he directed the secretary to immediately ad-
dress the same notice that had been mailed to National Metal
Processing to Respondent and to send it by certified mail
(Tr. 170). On cross-examination, Lange admitted that if he
sent the notification to Respondent on January 4 (G.C. Exh.
9), then he first discovered the mistake on January 3, 1991
(Tr. 172), rather than January 4.
Garavaglia testified that on January 3 he received a phone
call from Lange who asked him if he had already received
the letter reopening the contract (Tr. 426–427). Garavaglia
told him that he had not received it. Lange said that he had
not received it because his office clerical mistakenly sent the
letter to National Metal notwithstanding that it had
Garavaglia’s name on the letter. Garavaglia testified that
Lange then said: ‘‘[Y]ou are not going to try to tie me up
and say I did not send you an opening negotiation letter
. . . .’’ (Tr. 427). Garavaglia said: ‘‘No, if you sent it over
there, I accept it.’’ Lange then said that he would send an-
other letter to Garavaglia the next day (Tr. 427).
Lange testified that he did not recall the conversation; that
he would not have talked to Garavaglia on that day because
it was on New Year’s Eve. When reminded that even Janu-
ary 2 was not New Year’s Eve (Tr. 172), Lange said that
he still would have not returned from northern Michigan on
January 2; that he never returns until January 2 (Tr. 172–
173).
In view of Garavaglia’s otherwise credible testimony in
the face of Lange’s original testimony that he merely could
not recall such a conversation and then gave varying ac-
counts of why he could not have made the telephone call on
January 2 when both he and Garavaglia testified that the call
occurred on January 3 (compare Tr. 172 with Tr. 427), I
credit Garavaglia’s version and find that there was such a
January 3, 1991 phone call; that Lange requested Garavaglia
not to ‘‘tie [him] up’’ by refusing to accept the improper
service of the opening negotiation letter; that Garavaglia said
that he accepted the misdirected letter as timely and that
Lange said he would send a properly addressed letter on the
1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Consistent with the statutory requirements of Sec. 8(d)(3) and (4)
of the Act, Lange, on January 4, 1991, also sent notification of his
desire to terminate the contract to the Federal Mediation and Concil-
iation Service and to the Michigan Department of Labor (Tr. 629,
G.C. Exhs. 33(a) and (b)).
8 The substance of this letter appears to state that Respondent
would not abide by art. XV which appears to permit extension of
the contract upon 5 days’ written notice: ‘‘If the parties do not arrive
at a mutually satisfactory agreement on the proposed amendment or
additions, by the termination date or anniversary date of this agree-
ment, this contract shall continue in full force and effect until such
agreement upon five (5) days’ written notice.’’
next day confirming the Union’s desire to terminate the con-
tract and begin new negotiations (Tr. 427).
In fact, Lange sent a letter to Garavaglia dated January 4,
1991 (Tr. 62, 170, G.C. Exh. 9), which Garavaglia received
on January 7, 1991.7
The record shows that on January 7, 1991, Respondent re-
plied (G.C. Exh. 11) to the Union’s January 4 notification of
termination and the request to commence negotiations for a
new collective-bargaining agreement. Garavaglia requested
the composition of the Union’s negotiating committee, the
available dates for negotiations, the Union’s plans to request
the presence of a Federal mediator, the Union’s rules con-
cerning ratification and the authority to execute the agree-
ment. Having then not heard from the Union, Garavaglia
commenced telephoning Union President Evans to arrange
for negotiations.
On February 11, 1991, Evans provided the names of the
Union’s negotiating committee to Garavaglia and they agreed
to meet the next day in collective-bargaining.
The parties met in collective-bargaining on February 12,
1991. The Union was represented by President Evans and
Givan; Respondent by Pulis and Garavaglia. The Union pre-
sented Respondent with its initial contract proposal (G.C.
Exh. 13) which was discussed by the parties. After reviewing
the proposal, the parties agreed to meet again on February
18, 1991.
On February 18, 1991, the parties meet again with Re-
spondent submitting a contract proposal (G.C. Exh. 15)
which the parties reviewed. The parties reviewed, item by
item, both Respondent’s proposal and the Union’s proposal
(Tr. 441). Although the parties agreed to meet in collective
bargaining the following day, Garavaglia told the Union that
he had to have a contract by the end of the contract term,
11:59 p.m., March 4, 1991 (Tr. 442). Garavaglia admitted
that Respondent’s February 18 proposal was the same as that
which it had submitted to the Union on December 5 during
contract reopener negotiations, although there were some
minor modifications (Tr. 571). Respondent’s December 5,
1990/February 18, 1991 contract proposal to the Union in-
cluded no monetary proposal (G.C. Exh. 13) but continued
to recognize the unit as that which was contained in the ex-
piring contract (G.C. Exh. 4) As above noted, except for the
much earlier additional exclusion of the category ‘‘profes-
sionals,’’ the 3-year contract, expiring March 4, 1991, to
which Respondent was bound, continued the unit description
found in the Board certification of representative. Thus the
first Respondent contract offer continued to define the unit
‘‘employees’’ as including: ‘‘ all production and maintenance
employees, including truckdrivers and shipping and receiving
employees.’’ (Compare: G.C. Exh. 4 with G.C. Exh. 13.) But
the February 18, 1991 proposal, the ‘‘first proposal’’ for the
new contract, contained, however, among the ‘‘minor modi-
fications’’ which Garavaglia mentioned in his testimony (Tr.
571) a change in the unit from that which appeared in the
December 5 proposal: article 1, the recognition clause, in
section 1.2 thereof, contains Respondent’s demand that the
category ‘‘truckdrivers’’ be deleted (because there were
none) (G.C. Exh. 15).
Apparently at every negotiation meeting (Tr. 78; 498) be-
tween February and April 1991, as the substance of those
discussions is discussed hereafter, the question of a change
in the unit appeared. At each collective-bargaining session,
Garavaglia at first wanted to exclude maintenance and ship-
ping and receiving employees (as well as drivers) and there-
after allegedly demanded to include the shipping and mainte-
nance employees into an overall production employee unit
with the same wages and incentives as production employ-
ees, and at each such collective-bargaining session, the
Union consistently refused (Tr. 498).
Pursuant to the parties’ agreement of February 18, they
met again in collective-bargaining on February 25, 1991. As
Union President Evans entered the meeting, Garavaglia pre-
sented him with a letter for his signature (the signature not-
ing service of the letter) and told Evans that he was terminat-
ing the contract (Tr. 235). The letter (G.C. Exh. 16) states:
The Contract assumed for Atlantic Western under
Article XV Termination alleges to require [sic] five (5)
day notice to continue.
Branch’s position is that the Contract presently being
negotiated is a new contract for Branch and, therefore,
not subject to amendments or additions and that this
contract of Atlantic Western assumed for operating pur-
poses until 11:59 p.m. on March 3, 1991 and will not
be extended in any form past that date.8
When Garavaglia said that he was terminating the contract,
Evans replied that the Union would like to work on a day-
to-day basis. Garavaglia insisted that the contract would be
terminated. Evans then asked him if he was going to lock
out the employees and Garavaglia answered ‘‘maybe’’ (Tr.
237). Garavaglia stressed that time was of the essence and
that the parties should avoid dragging out the bargaining ses-
sions. After reviewing each other’s prior proposals and in-
deed reaching tentative agreement on some items, the parties
agreed to bargain again the next day.
At the February 26, 1991 collective-bargaining session,
Lange joined the group bargaining for the Union. Lange told
Garavaglia that the Union did not agree with the contents of
Respondent’s February 25 letter (G.C.Exh. 16, refusing to
abide by article XV concerning renewal of the contract).
Union President Evans stated that he had not agreed to the
substance of the letter but only acknowledged its receipt.
Reviewing Respondent’s noneconomic contract proposal,
as Lange questioned each element of the proposal,
Garavaglia would assert that the parties were at impasse on
the point and move to the next element. When Lange ob-
jected to Garavaglia’s repeated use of ‘‘impasse,’’ stating
that he was merely trying to understand Respondent’s posi-
tion, Garavaglia ceased using that term. The parties then re-
viewed the union proposal. Respondent accepted two or three
1097BRANCH INTERNATIONAL SERVICES
of the Union’s proposals and stated that the rest would be
considered. Respondent then presented its second non-
economic proposal and a written economic proposal (G.C.
Exhs. 17, 18). Respondent’s first economic proposal (‘‘Mon-
etary proposal’’) included (a) a 10-percent reduction in pay
for all employees making more than $8 an hour; (b) an 8-
percent reduction in pay for all employees making less than
$8 an hour; and (c) no increase in Respondent’s incentive
plan (G.C. Exh. 17). It also wanted to eliminate the attend-
ance bonus (Tr. 99).
In its noneconomic proposal, Respondent again included
its demand for a deletion of the ‘‘truckdriver’’ category from
the unit (G.C. Exh. 18). At the end of the bargaining day,
after lunch, Garavaglia stated that he had an oral proposal
that he wanted to make to the Union: that the categories of
maintenance employees and truckdriver be removed from the
contract unit. Garavaglia said that Respondent did not want
maintenance employees or truckdrivers in the Union (Tr. 78).
Lange made a note of the Garavaglia proposal and made no
response at that time (Tr. 80). Garavaglia complained of the
serious employee attendance, drug and alcohol problems and,
referring to the attendance bonus program, stated that Re-
spondent did not intend to pay employees who did not show
up for work.
Garavaglia told the Union that while he was willing to
work 24 hours a day to reach a contract, he insisted on hav-
ing a new contract in existence at the time of the expiration
of the old one. Garavaglia reminded Lange of his earlier po-
sition that the Union would not work beyond the expiration
of the contract (Tr. 450). The February 26 session ended on
Lange’s angry accusation concerning Respondent’s proposed
pay cut for unit employees. The parties nevertheless agreed
to meet the next day, February 27, 1991. This meeting was
canceled due to the death of National Metal Processing Presi-
dent DeGrazia.
The parties nevertheless bargained again on March 1,
1991. Respondent proposed a change in its production incen-
tive system. This plan was based on the number of racks of
steel or tonnage of steel produced by each production em-
ployee. While Respondent increased the incentive pay for
both tonnage and racks, it also increased the ‘‘threshold qual-
ification’’ for incentive by increasing the number of racks
and tonnage required to qualify. The production incentive
pay system represents about 25 percent of a production em-
ployee’s earnings and was consequently a significant issue in
the negotiations (Tr. 99).
Respondent furnished the Union with requested informa-
tion concerning attendance and tardiness problems raised by
Respondent in prior meetings. Lange told Garavaglia that in
order for the Union to evaluate the change in the incentive
system, the Union needed to know, by shift, the daily 12-
month tonnage and rack production. Lange also demanded
the identity and amount of money received by each produc-
tion employee paid under the incentive system. Respondent
agreed to provide the information, but Garavaglia told the
union that it would be difficult to provide the information
concerning Respondent’s proposed change in the incentive
pay program in the time remaining prior to contract expira-
tion especially in that Respondent had limited access to Na-
tional Metal’s processing records. Garavaglia again reminded
the Union of the necessity to engage in strenuous collective
bargaining in order to reach a contract but the Union refused
to bargain on Saturday, March 3, 1991. Rather, they arranged
to meet again on Monday, March 4, 1991.
On March 4, 1991, the last day of the contract, the parties
met again. Lange told Respondent that he could not remain
very long because he had another commitment. Garavaglia
said that he wanted to meet even without the presence of
Lange as they had done in February. The Union refused to
negotiate without Lange. Respondent nevertheless presented
the Union with certain incentive pay information covering a
1-week period and added a verbal report with regard to an
additional 3- to 6-week period which was claimed to be rep-
resentative of the entire year. Lange stated that the informa-
tion was inadequate and that since the incentive pay was
such a large proportion (Tr. 99, i.e., about 25 percent) of the
production employees’ pay, the Union could not intelligently
bargain on the proposed change in the incentive pay system
without the requested information. Garavaglia told Lange that
it would take 2 weeks to get the information. Garavaglia tes-
tified (Tr. 490) that he presented a demand on March 4 that
all the classifications in the certified unit be reduced to a sin-
gle classification of all production employees. Garavaglia
nevertheless presented the Union with a written contract pro-
posal repeating the elimination of truckdrivers from the con-
tract unit (G.C. Exh. 19). Contradicting Garavaglia, Lange
credibly testified (Tr. 211) that Garavaglia demanded that
maintenance employees be eliminated from the unit and de-
nied that Garavaglia merely wanted all classifications in a
single unit of production employees. In this regard I observe
that Garavaglia admitted (Tr. 489–490) that he originally told
Lange that he wanted the maintenance category ‘‘completely
removed from the collective-bargaining unit’’ but that on
March 4, he changed his mind (Tr. 490). I do not credit
Garavaglia. Certainly, by April 26, Respondent was still in-
sisting that maintenance employees ‘‘be entirely excluded
from the unit’’ (Tr. 138–142).
Garavaglia told the Union that its March 4 contract pro-
posal (G.C. Exh. 19) represented Respondent’s ‘‘final posi-
tion’’ (Tr. 104) that it had no further room to negotiate over
open items (Tr. 104, 105); and that apart from items marked
on the March 4 offer as ‘‘okay,’’ Respondent was presenting
its final position and had to have agreement on the open
items (Tr. 104).
While Garavaglia wanted maintenance employees excluded
from the unit, he demanded on March 4, that the shipping
and receiving employees and truckerivers be classified only
as ‘‘production employees.’’ Under the existing contract,
only production employees received incentive pay.
Garavaglia said this produced constant friction because other
employees did not receive similar incentive money when
pressed into production work because of emergency condi-
tions. Their refusal to work in production would sometimes
result in Respondent having to shut down a production line
(Tr. 488).
When Garavaglia stated on March 4 that there were still
42 open items to discuss, and notwithstanding that Lange had
rejected the information concerning incentive pay which Re-
spondent had produced as wholly inadequate (‘‘bargaining in
the dark,’’ Tr. 285), Lange offered to work from day-to-day
under the terms of the old contract and Garavaglia refused
(Tr. 586). While Garavaglia said that they were at impasse
on many items on the sheet he had presented, he said they
1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 I find, in any case, that the parties were not at impasse not only
because neither party left the March 4 bargaining session believing
that the parties had come to the end of their bargaining rope, but
Lange clearly stated that he was willing and anxious to bargain fur-
ther when Respondent provided the information concerning the eco-
nomic terms (incentive plans, absentee bonus) that had not been sup-
plied. Lange thereafter told the employees, on March 5, that they
were not on strike and that negotiations would continue (Tr. 116).
Moreover, Lange testified without contradiction that not only did
Garavaglia, on March 4, say that the parties were not at impasse but
that Garavaglia said that his March 4 economic proposal was not his
final economic proposal (Tr. 106). See: Huck Mfg. Co. v. NLRB, 693
F.2d 1176 (5th Cir., 1982).
10 The uniformed armed guards were apparently hired by National
Metal Processing rather than Respondent.
were not at overall impasse because he had not submitted a
final economic offer (Tr. 106-8).
At the conclusion of the March 4 meeting, Garavaglia told
the Union that unless there was a contract or that the bar-
gaining showed that they were close to a contract, he would
not permit the employees to work past the expiration of the
old contract at midnight. Garavaglia nevertheless gave the
Union an option: if the parties continued negotiating in good
faith and were close to a contract, he would continue the
terms of the present contract; if they were not close to a con-
tract, the employees could work but would have to work
under the terms of Respondent’s last offer (Tr. 491). Under
the latter alternative, the employees could work under the
terms of Respondent’s last noneconomic offer (G.C. Exh. 19)
together with Respondent’s last verbal economic offer of
March 4 which (1) raised the incentive pay but also raised
the threshold, (2) returned to the old contract production
wage rates (Tr. 494), and (3) eliminated the 10-percent and
5-percent wage cuts previously proposed (Tr. 495).
Lange refused to work except under the terms of the old
contract (Tr. 502) and told Garavaglia that the Union would
tell its members that they were not through with negotiations
but would work on a day-to-day basis until Respondents sup-
plied the information concerning the change in the incentive
plan. Lange said that he did not intend to negotiate in the
closet ‘‘in the dark’’ (Tr. 101; 285). Lange inquired whether
Garavaglia intended to lock out the employees and
Garavaglia repeated what he had previously told Union
President Evans: ‘‘Maybe’’ (Tr. 103). Garavaglia told Lange
that he would refuse to permit the employees to work under
the old contract on a day-to-day basis and accused Lange of
failing to remain to bargain since the contract was rapidly
coming to an end; that Lange was bargaining in bad faith
and that Respondent would file charges against the Union for
bargaining in bad faith (Tr. 101). Lange repeated that he
would return to the bargaining table when Respondent sup-
plied him with information concerning payments in the ab-
sentee bonus program and the production incentive program
(Tr. 100–101). He told Garavaglia to contact him when Re-
spondent had such information (Tr. 101). During the meet-
ing, however, Lange urged the presence of the Federal Medi-
ator. Garavaglia said that in the absence of impasse there
was no necessity for the presence of the Federal Mediator
(Tr. 106–108).9
As Respondent points out (Br., pp. 13–14), there have
been no allegations made that Respondent failed to comply
with its duty to furnish information to the Union and neither
party ever gave a 5-day written notice to continue the con-
tract in effect. Furthermore, no union representative has ever
suggested that Respondent has failed to give proper notice to
terminate the contract or that the contract was not properly
terminated or that it continued in effect for any time fol-
lowing the termination date of March 4, 1991.
The March 5, 1991 Lockout
About 2 to 3 weeks before March 4, Respondent inter-
viewed potential temporary replacements in the event no
agreement was reached by the time the contract expired.
Consistent with President Garavaglia’s repeated admonition
that the employees would not be permitted to work beyond
contract expiration date, after contract negotiations broke off
on March 4, Respondent contacted the temporary replace-
ments to inform them that they would be needed.
When the temporary replacements reported to work on
March 5, 1991, Respondent reminded them of their tem-
porary status and that they were being hired only on that
condition, particularly advising them that their employment
might cease if there was a settlement made with the Union.
The temporary employees commenced work on March 5 on
the basis of Respondent’s implemented March 4 offer to the
Union (Tr. 364).
When the old unit employees attempted to report to work
on the morning of March 5, 1991, they found the gates
locked; armed uniformed guards patrolling the facility inside
the locked gates and discovered from the guards that they
had been locked out. The employees then asked Respond-
ent’s supervisor, Walter Collins (Tr. 322–324), why they
were not allowed to work and Supervisor Collins told them
that they were locked out at the present time (Tr. 323).10
Plant Manager Pulis told the locked-out employees that the
contract having expired, there was no work available for
them until the contract matter was settled (Tr. 349).
After Union President Evans left the plantsite on March 5,
having observed the armed guards, he telephoned Garavaglia
and told him that the parties still had a lot of grievances out-
standing including a discharge grievance (Tr. 246).
Garavaglia told him ‘‘the contract is dead and the grievances
are dead’’ (Tr. 246). I do not credit Garavaglia’s denial of
this Evans testimony.
On or about March 12, 1991, Respondent wrote (G.C.
Exh. 21) to the Union requesting continued negotiations, stat-
ing that it was ready and willing to negotiate at any time and
on any date. Respondent reasserted its position that there
were many outstanding issues for negotiation and that the
parties should come to an agreement regarding Respondent’s
employees working at National Metal Processing Inc.
In reply, on or about March 19, 1991, the Union stated
(G.C. Exh. 22) that Lange had spoken with Plant Manager
Pulis on the previous day, March 18, and told him that the
Union felt that Respondent was engaged in surface bargain-
ing and that meaningful negotiation could take place only
with a Federal mediator. Lange wrote that he had contacted
a Federal mediator who was available in late March 1991,
on specific dates (March 25, 26, and 29) for negotiation pur-
poses. Finally, Lange, noting that the Union could only bar-
gain intelligently over the incentive program if it possessed
information requested at previous meetings, asked that Re-
spondent furnish it with information relating to tonnage, rack
1099BRANCH INTERNATIONAL SERVICES
11 Since the original charge in Case 7–CA–31616 was filed on
March 5 and served on March 7, Lange’s letter to Respondent
shows, on its face, that a copy had been dispatched to counsel for
the General Counsel who appeared in this case.
12 As above noted, Evans testified that in his telephone conversa-
tion with Garavaglia on March 5, 1991, the first day of the lock out,
when Evans mentioned the several outstanding grievances that still
had to be addressed, including the discharge grievance, Garavaglia
told him that the ‘‘contract was dead and the grievances were dead.’’
Apparently in consequence thereof, the union filed its amended
charge in Case 7–CA–31616 on March 7, 1991, which amended
charge was received by Respondent on March 11, 1991 (G.C. Exh.
1(d)). That amended charge not only restates allegations of Respond-
ent’s bad-faith bargaining and illegal lockout, but asserts that:
‘‘Since on or about March 6, 1991, the above Employer has refused
to bargain over and/or process existing grievances.’’
13 Garavaglia sent a copy of this letter to NLRB Regional Director,
Region 7 (G.C. Exh. 28).
14 The document also contains certain handwritten material. The
document, however, was offered without reference to the hand-
writing on the document (Tr. 132), and was received on that basis.
15 I credit Lange’s uncontradicted and otherwise credible testimony
concerning his conversation with Respondent’s plant manager, Pulis,
on April 26, 1991. Pulis did not testify.
count and total dollars involved; and in addition, information
regarding the attendance bonus program.11 On March 26,
1991, Respondent answered Lange’s March 19 letter.
Garavaglia stated, inter alia, that the parties did not need a
mediator because Respondent had not given a final offer nor
had the Union made a final offer. Garavaglia informed Lange
of Respondent’s willingness to continue negotiations, advis-
ing the Union that it had finally obtained the requested infor-
mation involved in the incentive program and would supply
it at the next negotiating meeting. Suggesting that the Union
was engaged in bad-faith bargaining, Garavaglia claims sur-
prise in that the Union’s March 19 letter was asking for
something new on the bonus program; that Respondent had
given the original figures requested and that such figures
given on March 1 had been satisfactory to the Union; that
the Union was creating a new ploy in bad-faith bargaining.
After urging Lange to negotiate in good faith for as long as
it would take to put together a new contract, Garavaglia stat-
ed that if he heard that the Union contacted National Metal
Processing again and made false statements, he threatened to
sue Lange for defamation. As did Lange’s March 19 letter,
Garavaglia’s March 26 response sent a copy to the counsel
for the General Counsel.
On April 3, 1991, Respondent wrote (G.C. Exh. 28) to
Local President Arthur Evans concerning meetings on out-
standing grievances under the former contract,12 the text
being:
RE: Meetings On Outstanding Grievances Under the
Former Contract
Sir:
To clarify, if there has been a misunderstanding, the
Company, Branch International Services, Inc., is ready
and willing to have any meeting on any outstanding
grievances under the old contract.
Please contact this writer to set up the date in time
for a meeting you might request.13
Pursuant to the above exchange of letters concerning
grievances, a grievance meeting was held on April 16, 1991.
At that time, the parties nevertheless considered and re-
viewed Respondent’s outstanding economic and non-
economic proposals and Respondent furnished the Union
with additional documentation on the incentive plans racks
and tonnage which the Union had requested. The evidence
shows that in or as a result of the April 16 grievance meet-
ing, a total of six grievances were discussed including the
discharge grievance (Tr. 520). The discharge grievance was
sent to arbitration and the other five grievances resulted in
disagreement and the Union took no action with regard to
then. These grievances were therefore ‘‘tabled’’ (Tr. 520).
The parties then agreed to meet again on April 22, 1991.
At the April 22, 1991 collective-bargaining session, the
Union presented Respondent with a second economic pro-
posal and Respondent presented the Union with a further
economic proposal. Economic and noneconomic issues were
still unresolved and the meeting was adjourned to April 24.
The Collective-Bargaining Session of April 24, 1991
At the opening of the meeting, Garavaglia presented Lange
with a document (G.C. Exh. 26) which summarized the
issues relating to their bargaining: items on which there was
agreement and items which were in dispute. The Union then
caucused and returned requesting that Respondent make a
final offer and the presence of a Federal mediator.
Garavaglia said that there were still many unresolved issues,
that changes were still being made in the parties’ respective
bargaining positions, and that they keep bargaining to come
to a mutually agreeable position. He told Lange that he had
no intention of bringing in a Federal mediator until they
came to impasse. Garavaglia nevertheless agreed to provide
a final offer which the Union could pick up from Respond-
ent’s office on April 26, 1991.
The document which the parties reviewed at the April 24
bargaining session (G.C. Exh. 26) contains Respondent’s
typewritten notations concerning areas of agreement and dis-
agreement14 in particular positions of the parties with respect
to changes derived from subsections in the expiring contract
(G.C. Exh. 4). With regard to section 1.2, the unit descrip-
tion, the document shows no union agreement to providing
a letter of understanding to cover the exclusion of ‘‘truck-
drivers.’’
Respondent’s Final Offer of April 26, 1991
On April 26, 1991, Lange visited Respondent’s office and
received from plant manager Pulis Respondent’s final con-
tract offer (G.C. Exh. 27). Lange asked Pulis if Respondent’s
final offer was the same as that which had been produced
in negotiations or whether there had been any changes. Pulis
told him that there were some changes (Tr. 135).15 Pulis told
Lange that there were changes in wages and in the incentive
program, with Respondent adding 5 cents per rack to a total
of 65 cents per rack on the incentives (Tr. 136) and restored
a nickle per hour on the wages so that Respondent’s pro-
posed rate reduction was decreased (Tr. 137). The other
change that Pulis mentioned was that the categories ‘‘mainte-
nance’’ employees and ‘‘truckdriver’’ were removed from
the unit description. Pulis told Lange that Respondent wanted
those classifications (maintenance and truckdriver) to be
‘‘nonunion’’ (Tr. 138). Respondent, however, pointed out
from the text of the April 26 final offer, that Lange’s testi-
1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Lange credibly testified that commencing with the very first col-
lective-bargaining meeting that he attended on February 26, Re-
spondent wanted maintenance employees out of the unit (Tr. 153).
Although I have not credited Garavaglia’s testimony that he there-
after changed his mind to the extent of wanting maintenance em-
ployees included, without separate unit definition, as part of ‘‘pro-
duction’’ employees, there was no contradiction of Lange’s testi-
mony, appearing in the above text, that on April 26, Plant Manager
Pulis told him that Respondent wanted maintenance employees ex-
cluded from the Union and from the unit. In addition, however,
Lange testified that at the April 24 collective-bargaining session,
Garavaglia also insisted that the position of ‘‘lab technician’’ should
be excluded from the unit. The inclusion of the laboratory technician
category in the production unit had been accomplished by a ‘‘memo-
randum of understanding’’ between National Metal Processing and
the Union even before Atlantic Western came into the picture (Tr.
206). Under the expiring collective-bargaining agreement, the ‘‘lab
technician’’ enjoyed a separate pay category among the production
employees (Tr. 205). By the time of Respondent’s appearance in
1990, no lab technician was employed.
mony with regard to the exclusion of ‘‘truckdrivers’’ from
the unit was incorrect (Tr. 141). The balance of Lange’s tes-
timony, with regard to Respondent’s exclusion of ‘‘mainte-
nance employees,’’ however, was correct. In short, Respond-
ent’s written ‘‘final offer’’ with regard to the unit description
is (G.C. Exh. 27):
Section 1.2
The term ‘‘employees,’’ as used in the Agreement,
shall include all production including truckdrivers and
shipping and receiving employees. Excluded are all of-
fice clerical employees, guards and supervisors and pro-
fessionals as defined in the Act.
Respondent conceded (Tr. 142) that it could not show that
the Union agreed to the elimination of ‘‘maintenance em-
ployees’’ from the unit description in its April 26 final offer
(G.C. Exh. 27).16
On Sunday, April 28, 1991, Respondent’s final offer was
submitted to the union membership for ratification and was
unanimously rejected in a secret ballot vote (Tr. 143–144).
On April 30, 1991, Lange told Pulis that the membership had
rejected the final offer and that he would be contacting a
Federal mediator.
Sometime thereafter, in May, a member of the union com-
mittee contacted the Respondent to resume negotiations and
a meeting was arranged for May 23, 1991.
The May 23, 1991 Collective-Bargaining Session
At this meeting, the parties were augmented by Federal
mediator Michael Nowakowski. Although the parties were
separated, and the Federal Mediator received a copy of the
last offer, no contract proposals were discussed at the meet-
ing. When shown his contemporaneously recorded notes,
Garavaglia testified that the notes did not refresh his recol-
lection of what he said at the meeting (Tr. 608–609).
Garavaglia’s notes record the fact that he told everybody that
Respondent’s position was that ‘‘new charge is filed and ne-
gotiations would not go forward until Board makes a deci-
sion.’’ (Tr. 609.) Garavaglia testified that his reference to a
refusal to further negotiate related to the fact that the Federal
mediator had suggested that Respondent file a charge with
the NLRB to determine whether the ratification vote was
lawful (Tr. 619). Garavaglia further testified that he did file
a charge with the Board (Tr. 619). Finally, Garavaglia testi-
fied that by use of the word ‘‘Board,’’ he meant the Re-
gional Office of the Board (Tr. 619). Garavaglia previously
told the Union that a number of employees had complained
that they had not been informed of the vote and had no op-
portunity to vote in the ratification.
No further collective bargaining occurred after the May 23
meeting.
Garavaglia and the Teamsters; April 1991
Around the time of the above April 16, 1991 grievance
meeting and collective-bargaining session, Garavaglia, in his
capacity as a labor consultant, was present at an arbitration
in Pontiac, Michigan, representing an employer (Capital
Transit Co.) in a grievance proceeding concerning the dis-
charge of one of its employees. Garavaglia represented the
employer. The grieving Union (Local 124, International
Brotherhood of Teamsters) was apparently represented by its
president, Gary Proctor, and its organizer, John H. Earhart.
Earhart knew Garavaglia from his experience in negotiating
contracts with him on behalf of the Teamsters (Tr. 291). The
grievance related to a fistfight between Proctor and the dis-
charged employee (Tr. 550).
Earhart testified that while he and Proctor were in an area
apart from the rooms in which the arbitrations were con-
ducted, Garavaglia approached them and spoke of an em-
ployer employing some 40-odd employees ‘‘that he would
like to give us’’ (294); that he ‘‘wanted another union in
there’’ (Tr. 307). Garavaglia, according to Earhart, identified
the employer as National Metal. Earhart testified that from
his prior experience in working with the Teamsters, he knew
the identity of National Metal and that Atlantic Western Per-
sonnel Leasing was an employer with whom the Teamsters
had a relationship (Tr. 294). In fact, Earhart previously had
been marketing director for Atlantic Western Personnel Leas-
ing (Tr. 294-295). He knew of the relationship between Na-
tional Metal Processing and Atlantic Western Personnel
Leasing (Tr. 295). Earhart testified that Garavaglia said that
he wanted to get the 40-odd employees into Local 124. Proc-
tor said that that sounds all right (Tr. 294). After Garavaglia
specified National Metal Processing as the situs where the
employees were working, Earhart said he called Proctor
aside, within a few feet of Garavaglia, and told him that the
unit working at National Metal ‘‘belongs to a fellow I know
by the name of Bill Lange, and you can’t take those people.
They belong to a union.’’ Proctor answered that he was
going to take the people anyway. Earhart replied that that de-
cision was up to Proctor; that Earhart was not the president
of the Local; but that the employees already belonged to a
union (Tr. 295). While Proctor and Earhart were speaking,
in a normal tone, Garavaglia was standing about 3 or 4 feet
away (Tr. 299).
At this point, Proctor turned to Garavaglia and said:
‘‘Well, we will see if we can work it out’’ (Tr. 296). Then,
Proctor, turning to Earhart, became angry and said: ‘‘We are
going to take those people’’ (Tr. 296). In response to Proc-
tor’s statement that he would see if he could work it out,
Garavaglia answered ‘‘Okay’’ (Tr. 299). Earhart told Proctor
that he was not going to get involved in it (Tr. 299–300).
Earhart acknowledged that he had previously known Lange
but denied that Lange was his friend (Tr. 303).
1101BRANCH INTERNATIONAL SERVICES
17 Sec. 10(b), in pertinent part, proscribes issuance of complaint
‘‘based upon any unfair labor practice occurring more than 6 months
prior to the filing . . . and service . . . [of the charge].’’
Although Garavaglia was unsure of the date, he conceded
that he spoke with Earhart and Proctor in April 1991 (Tr.
548–549). Garavaglia testified that while awaiting the deci-
sion on the discharge grievance, Earhart approached him,
stating that he understood that he was having a problem at
National Metal Processing. When Garavaglia acknowledged
that there was a labor dispute, Garavaglia testified that Ear-
hart said that he was an organizer and that he earns his living
only by successfully organizing people (Tr. 551). Earhart
then asked: ‘‘How about if I organize them’’ (Tr. 551).
Garavaglia said he told him that he could not organize em-
ployees that were already in a union and that there was no
way to organize them in spite of the labor dispute (Tr. 551).
Garavaglia said that Proctor turned to Earhart and said:
‘‘You know, John, you can’t go and try to organize someone
who was already in the union and we have a [no-raid] agree-
ment with the AFL–CIO . . . .’’ Garavaglia said that Ear-
hart then told Proctor; ‘‘You know, you only pay me on the
amount of people I bring in and I know these guys over
there and I’m sure I can get them organized, signed up, and
then I can get paid and you’ve got new members’’ (Tr. 551).
Garavaglia then said he told them that he did not want any
part of it and walked away after Proctor told Earhart that he
‘‘should not do things like that, you know that is not legal’’
(Tr. 551–552). In particular, Garavaglia denied ever having
offered to assist Proctor or Earhart in organizing any Na-
tional Metal Processing employees (Tr. 552). In fact, he testi-
fied, that he told them that he did not care which unions the
employees belonged to and that it was their choice (Tr. 552).
Discussion and Conclusions
A. The Improvident Permission to Amend
the Complaint
At the hearing, over Respondent’s objection, General
Counsel was granted leave to amend the complaint and to al-
lege, for the first time, that the contract between the Union
and Respondent was automatically renewed and that Re-
spondent, by locking out its employees, thereby also violated
Section 8(d) of the Act.
Respondent, as it argued at the hearing, argues in sub-
stance, that the amendment to the complaint at the opening
of the hearing, violates the proscription of Section 10(b) of
the Act.17 In particular, Respondent urges that the amend-
ment fails to meet any of the three-part tests for complaint
amendments following the expiration of the 6-month period
following the filing of a lawful charge. In Redd-I, Inc., 290
NLRB 1115 (1988), as Respondent notes, the Board an-
nounced its rule permitting amendments of complaint by
adding allegations of violations outside the 6-month 10(b)
period. The Board, in Redd-I, supra, stated that (1) the other-
wise untimely allegations must be of the same class as the
violations alleged in the pending timely charge. This means
that allegations must all involve the same legal theory and
usually the same section of the Act; (2) the Board examines
whether the untimely allegations arise from the same factual
situation and sequence of events as the allegations in the
pending timely charge; and (3) the Board examines whether
the Respondent would raise the same or similar defenses to
both allegations and thus whether a reasonable Respondent
would have preserved similar evidence and prepare a similar
case in defending against the otherwise untimely allegations.
With regard to the first issue, above, Respondent urges
that the 8(d) allegations and the ‘‘renewal of the contract’’
allegations are not ‘‘of the same class’’ as the violations al-
leged in the pending timely charge. Respondent suggests that
these amendments present ‘‘an entirely new legal theory’’
since they allege that the lockout was illegal per se because
the contract was automatically renewed (because of a
claimed failure of either party to give timely notice of intent
to end or to terminate the contract). In view of General
Counsel’s concession that the contract expired on March 4,
1991, Respondent argues (Br. p. 25) that neither the charge
nor the original consolidated complaint raised the question of
timely notice of termination of the contract. Indeed, the origi-
nal complaint alleged only that the contract terminated on
March 4, 1991. Further, the original charge did not allege a
violation of Section 8(d) of the Act but merely violation of
Section 8(a)(5) due to the lockout in retaliation for the
Union’s refusal to accept the Respondent’s terms upon termi-
nation of the contract.
This matter has recently received Board and court interpre-
tation in NLRB v. Overnite Transportation Co., 938 F.2d 815
(7th Cir. 1991). In that case, the court properly distinguishes
between Section 10(b)’s application to the timely filing and
service of a charge compared to the issuance or amendment
of the complaint, NLRB v. Complas Industries, 714 F.2d 729,
732 (7th Cir. 1983), noting that a different portion of Section
10(b) relates to the amendment of complaints. The ability to
amend the complaint, as the court notes, is ‘‘not unfettered’’
under NLRB v. Fant Milling Co., 360 U.S. 301, 309 (1959).
In Overnite Transportation, supra, the Board, utilizing the
Redd-I, Inc. rationale, found an independent violation of Sec-
tion 8(a)(1) because that newly added allegation was ‘‘close-
ly related’’ to the existing 8(a(5) charge and complaint not-
withstanding that it was made the subject of amendment after
the running of the 6-month 10(b) period of limitation.
The court stated:
The Board then concluded that the two alleged viola-
tions were of the same class because, although not
based on the same section of the Act, they were based
on the same legal theory—‘‘Overnite’s efforts to resist
unionization.’’ The Board also found that the alleged
violations arose out of the same factual situation or se-
quence of events because the alleged 8(a)(1) violation
essentially consisted of statements in which Overnite
threatened to act as it actually did act in the alleged
8(a)(5) violation. Finally, the Board found that Overnite
would raise similar defenses to both allegations.
The court in Overnite found that in that circuit its rule was
that ‘‘Section 10(b) is to be broadly construed to permit the
[General Counsel] to include in the complaint any matter of
the same general nature as that asserted in the charge’’
(NLRB v. Overnite Transportation Co.). It found that the
8(a)(1) allegation of a threat arose during the same organiza-
tional campaign as characterized by the employer’s conduct
at the bargaining table and were both part of the same ‘‘cru-
sade directed against the Union’’ thus supporting the Board’s
1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 The court specifically rejected the employer’s suggestion that
the Seventh Circuit rule and the Board rule intimated that the un-
timely amendment must arise under the same section of the Act in
order to be ‘‘closely related.’’ See NLRB v. Overnite Transportation,
supra at fn. 8.
19 Of course, the Union may well be adversely affected by my re-
consideration of this matter. The Union, in the face of a renewed
contract, could reasonably claim that Respondent failed to perform
its duties under the renewed contract, including the payment of peri-
odic union dues and fees pursuant to a checkoff clause and other ob-
ligations including the obligation to maintain all the terms of the
contract in full force and effect.
findings that the two allegations involved the same legal the-
ory and arose out of the same sequence of events.’’ (Id. at
820.)18
In view of the court’s gloss of the Board’s Redd-I decision
supra, I conclude that, notwithstanding the amendment of the
complaint alleging the 8(d) violation did not arise out of the
same section of the Act as the original 8(a)(5) allegation, Re-
spondent’s argument, to that extent, must be rejected. To the
extent that the amendment alleging renewal of the contract
relates to the same ‘‘legal theory’’ as that in the underlying
complaint and charge, however, I regard Respondent’s argu-
ment as having merit. On this ground alone, I conclude that
granting General Counsel’s right to amend the complaint to
allege renewal of the contract in the face of its prior contrary
allegation, while it may be excused from not alleging the
same section of the Act, can hardly be said to involve the
‘‘same legal theory’’ even within the broad construction al-
lowed by the Seventh Circuit or by the Board.
With regard to the second Redd-I element, whether the un-
timely allegations arose from the same factual situation or se-
quence of events as the allegations in the pending timely
charged, the Board specifically states that it means to inquire
whether the untimely allegations involve similar conduct dur-
ing the same time period with a similar object. Although the
Board gives as its example terminations during the same
union organizing campaign, I further conclude that under this
second rubric, Respondent’s argument has merit. For as will
be seen in further discussion, below, the General Counsel is
not urging the ‘‘same factual situation’’ as the basis of the
otherwise untimely amendment; rather, he is urging the exact
opposite: Instead of urging that the contract has terminated,
he is now urging the exact contrary factual situation which,
I conclude, is inconsistent with the above second step of the
Redd-I analysis. A directly opposite factual allegation can
hardly arise from the same ‘‘factual situation.’’ This nec-
essarily is intertwined with the third step of the Redd-I anal-
ysis which follows.
I conclude that Respondent’s position with regard to the
third element of the Redd-I analysis has even greater merit.
There, the Board stated that it would inquire as to whether
Respondent would raise the same or similar defenses to both
allegations and thus whether Respondent reasonably would
preserve similar evidence, and prepare a similar case in de-
fending against the new, otherwise untimely allegations.
Rather than defending on the factual basis of the substance
of collective-bargaining sessions and the parties’ positions to
justify the lockout, Respondent is now faced with the asser-
tion that the lockout was illegal per se because it locked out
the employees in the face of an automatically renewed con-
tract. The automatic renewal is based on entirely different
circumstances: the failure of either party to give timely no-
tice of intent to amend or terminate the contract. Such new
and untimely allegations can hardly be said to present Re-
spondent with the ability to raise the same or similar de-
fenses to both allegations or to preserve similar evidence and
prepare a similar defense. A lockout based on all the factual
circumstances is a different case, presenting no opportunity
for a defense where the lockout is in the face of an automati-
cally renewed existing collective-bargaining agreement. I
therefor conclude that I improvidently permitted the General
Counsel to amend the complaint and, in part, to try the case
on the theory of the automatically renewed contract (based
upon untimely notices of termination or amendment by either
party) rather than on his original theory which will be treated
hereafter. My conclusion of having improvidently granted
General Counsel’s motion does not substantially interfere
with General Counsel’s theory of a violation based upon the
total circumstances of the case.19 Nor did it, nor does it,
interfere with Respondent’s ability to defend.
In addition, the conduct of the parties was entirely con-
sistent with the factual allegations underlying General Coun-
sel’s original allegations, i.e., that the contract terminated on
March 4, 1991. Thus, permitting the amendment by adding
the otherwise untimely allegation of automatic contract re-
newal was inconsistent with the Union’s expectations, posi-
tion and conduct from the very beginning of its bargaining
with Respondent for a new contract. On December 11, 1990,
Lange wrote to Garavaglia (G.C Exh. 8) that the Union
would refrain from further reopened negotiations in Decem-
ber and await the ‘‘expiration date of the current labor agree-
ment, and begin negotiations at that time.’’ Likewise, on Jan-
uary 4, 1991, Lange wrote to Garavaglia and presented the
8(d) notice of termination to Respondent alleging that it was
serving ‘‘notice to you of termination of the contract between
Local 267 . . . and the employees employed at National
Metal Processing’’ (G.C. Exh. 9). Thus the intent of the par-
ties, manifested by prelitigation communications, was that
the contract terminated on March 4, 1991. There is no sug-
gestion from either party that they viewed the contract as
having been renewed. Thus, in preparing for the case, based
on the original complaint and charge containing an assertion
that the contract had terminated on March 4, 1991, Respond-
ent, for the 6-month period between the issuance of com-
plaint (June 18, 1991) and its receipt of notice of the other-
wise untimely amendment, in or about the week prior to the
opening of the the hearing (December 16, 1991), was in the
dark concerning its ability to defend the case and particularly
prejudiced by its failure to look to the preservation of evi-
dence concerning the renewal of the contract.
Thus, I conclude that I improvidently granted the amend-
ment to the complaint and, reversing that decision, I shall
dismiss so much of the complaint as alleges a renewal of the
contract and a violation of Section 8(d) of the Act as flowing
therefrom. In view of that ruling, I need not reach or decide
the questions relating to automatic renewal such as the time-
liness of notice and the responsibilities of the parties to give
such notice under Section 8(d) of the Act.
Alternatively, I further conclude that my permission to
amend the complaint to allege renewal of the contract in vio-
lation of Section 8(d) of the Act was improvident as a matter
of Board policy. Quite apart from the statutory violation of
1103BRANCH INTERNATIONAL SERVICES
20 An unlawful impasse on a nonmandatory subject is reached not
where the nonmandatory subject is merely present in the impasse
offer, but where the presence of the nonmandatory subject itself
gives rise to the impasse. Chicago Beef Co., 298 NLRB 1039
(1990), enfd. mem. 955 F.2d 906 (1991); Latrobe Steel Co. v. NLRB,
630 F.2d 171 (3d Cir. 1980).
Section 10(b) in permitting the amendment, the facts show
that the parties to the collective-bargaining agreement con-
sistently adhered to an interpretation, as above noted, where-
by the contract terminated on March 4, 1991. Such a mutu-
ally satisfactory interpretation, as demonstrated by the con-
sistent conduct of both parties, was in furtherance of no un-
lawful scheme such as depriving employees of statutory
rights through an unlawful union security clause, or a restric-
tion on solicitation and distribution of union literature or
membership application cards, or restrictions by the employer
and union designed to frustrate employee rights concerning
loyalties to, or organization by, another labor organization.
Rather, the parties’ interpretation of the contract concerning
its termination date was here wholly innocuous and con-
sistent with their own interests. In consequence of this con-
clusion, I recommend to the Board that, as a matter of Board
policy, the General Counsel should be bound by the contrac-
tual interpretation of the parties concerning the termination
date. Cf. H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970).
The General Counsel’s action, in amending the complaint
to show contract renewal, evidently results from a reanalysis
of the facts 6 months after the issuance of the complaint and
a year after the filing of the charge by which he concluded
that a further and different violation of the Act, due to addi-
tional facts, occurred. There is nothing in the record to show
that the General Counsel acted at the instigation of the charg-
ing party in the untimely amendment or that the evidence on
which the General Counsel acted had been hidden or sup-
pressed by Respondent. On the contrary, General Counsel
must have been in possession of both the terms of the ex-
pired contract and most particularly, Respondent’s February
25 refusal to abide by any claim of contract renewal (G.C.
Exh. 16) soon after the filing of the first charge on March
7, 1991. The General Counsel, therefore, acted on his own,
6 months after issuing complaint, alleging a new state of
facts directly antithetical to his original pleading. The Gen-
eral Counsel’s later evaluation of the facts brought him to the
conclusion that contrary to his original allegation, he could
argue that the contract, by its terms, was renewed in light of
the failure of certain conduct of the parties to forestall auto-
matic renewal. The General Counsel’s late reevaluation of
his factual and legal situation amounted to going off ‘‘on a
lark of his own’’ contrary to the spirit, if not the text, of re-
strictions on General Counsel’s conduct such as that found
in NLRB v. Fant Milling Co., 360 U.S. 301 (1959). In short,
I recommend to the Board that, quite apart from any viola-
tion of Section 10(b) of the Act, the General Counsel, as a
matter of Board policy, should not be permitted to amend the
complaint to allege the renewal of the contract when the par-
ties, on this record, as a matter of their own lawful interpre-
tation of their own collective-bargaining agreement, con-
cluded that the contract terminated on March 4, 1991.
B. Violations of Section 8(a)(5) and (1) of the Act
1. Lockout to coerce Union to accept offer containing
a unit change
The central allegation of the consolidated complaint (par.
24) asserts that the lockout commencing March 5, 1991, was
in retaliation for the Union’s refusal to acquiesce in Re-
spondent’s demands concerning the terms of a new contract,
and as a means to implement terms and conditions of em-
ployment which unilaterally deprive employees of seniority
and other rights previously enjoyed.
I conclude that not only did Respondent’s March 5 pre-
impasse unilateral implementation of its March 4 contract
offer, containing the unit change, violate Section 8(a)(5) but,
more specifically, that its March 5 lockout to coerce the
Union to accept the unilaterally implemented terms a fortiori
violates Section 8(a)(5); and that its refusal to permit its unit
employees to work except on those terms violates Section
8(a)(3) and (1) of the Act.
As the Board has recently noted in Field Bridge Associ-
ates, 306 NLRB 322, 334 (1992):
In Boilermakers Local 374 v. NLRB, 380 U.S. 300
(1965), the Court held that the employer did not violate
Section 8(a)(1) or (3) by locking out employees after an
impasse had been reached. In Harter Equipment, 280
NLRB 597 (1986), the Board held that an employer
may use temporary replacements during a lockout for
the purpose of bringing economic pressure to bear in
support of its legitimate bargaining demands. See also
B-Bar-B, Inc. 281 NLRB 250 (1986); National Gypsum
Co., 281 NLRB 593 (1986); Birkenwald Distribution
Co., 282 NLRB 1954 (1987). In Boilermakers Local 88
v. NLRB, 858 F.2d 756 (D.C. Cir. 1988), the Court
agreed with the Board’s conclusion that an employer
may engage in an offensive lockout while using tem-
porary replacements.
More than 35 years ago, in Douds v. Longshoremen ILA,
241 F.2d 278 (2d Cir. 1957), the Board, with court approval,
distinguished between private bargaining over conditions of
employment and administrative determination of the unit ap-
propriate for bargaining (Douds v. Longshoremen ILA, supra
at 282). The court observed that the parties cannot bargain
meaningfully about wages or hours or conditions of employ-
ment unless they know the unit for bargaining. That question
is reserved for the Board or the mutual agreement of the par-
ties. Indeed, the court held that the process of alteration of
the unit whether by agreement or board action, must involve
no disruption of the bargaining process, ibid.
The scope of an established collective-bargaining unit is a
nonmandatory subject of bargaining on which neither party
may insist to impasse. Syncor International Corp., 282
NLRB 408, 409 (1986).20 Consistent with this principle, the
Board has held that it is evidence of overall bad-faith bar-
gaining (an allegation not present in the instant complaint)
for an employer to continually insist, during bargaining, on
a change of the established unit. Such bargaining tactics
demonstrate ‘‘a reluctance . . . to attempt to reach a collec-
tive-bargaining agreement.’’ Beyerl Chevrolet, 221 NLRB
710 (1975); Preterm, Inc., 240 NLRB 654 (1979). Whether
or not the bargaining reaches a state of impasse (a status no-
where claimed herein by any party), it takes more than bar-
gaining to change the scope of the unit. It takes mutual
agreement or Board action. Metro Medical Group, 306
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 The credited testimony is that Respondent consistently sought
the exclusion of maintenance employees from the unit and from
union membership. On April 26, Pulis told Lange he wanted the
maintenance employees out of the unit and out of the Union.
22 Again, the uncontradicted and credited Lange testimony is that
as late as in his April 26, 1991 conversation with Respondent’s plant
manager, Joe Pulis, when he picked up Respondent’s ‘‘final offer’’
6 weeks after the March 5 lockout, Respondent’s ‘‘final offer,’’ as
Pulis told Lange, did not have the maintenance classification in the
unit. Pulis told Lange that Respondent wanted this category to be
‘‘nonunion or exempt’’ (Tr. 138). Garavaglia, himself, told Lange
that he did not want to merely have one classification; he wanted
to delete maintenance employees and lab technicians from the unit
because ‘‘they did not belong in the unit’’ (Tr. 211). Thus, from be-
ginning to end, Respondent, despite Garavaglia’s variable testimony
on the point, was insisting, prelockout, lockout, and postlockout, on
substantial unit change.
NLRB 373 (1992) citing the underlying Board rule estab-
lished in Arizona Electric Power, 250 NLRB 1132 (1980);
Carolina Telephone Co., 258 NLRB 1387 (1981).
With regard to the lockout as an economic weapon, the
Board has followed footnote 6 in Harter Equipment Co., 280
NLRB 597, 599 (see D.C. Liquor Wholesalers, 292 NLRB
1234, 1258 (1989):
The Board has held that the absence of impasse does
not of itself make a lockout in support of bargaining
demands unlawful . . .; neither does the absence of any
reasonable fear of strike. We likewise find that these
factors are not dispositive with respect to the lockout
use of temporary employees . . . .
The Board’s Harter Equipment rule, however, must be
read in the context of Boilermakers Local 374 v. NLRB, 380
U.S. 300, 318, as explained in Teamsters Local 639 (D.C.
Liquor Wholesalers) v. NLRB, 924 F.2d 1082 (D.C. Cir.
1991): a ‘‘bargaining lockout’’ must be for the sole purpose
of bringing economic pressure to bear in support of the em-
ployer’s legitimate bargaining position (emphasis added).
Boilermakers Local 374, 380 U.S. at 318. The court of ap-
peals, in D.C. Liquor Wholesalers, affirming the Board, held,
that a no-impasse bargaining lockout and use of temporary
employees was not in support of a legitimate bargaining po-
sition where the lockout was used to coerce the union to ac-
cept a unilaterally implemented no-impasse final offer, 924
F.2d 1082, and violated Section 8(a)(5), (3), and (1) of the
Act, ibid.
In the instant case, the Board certified the production and
maintenance unit including truckdrivers and shipping and re-
ceiving employees in 1974. This unit was kept intact (except
for the historical agreement of the parties to exclude profes-
sional employees see G.C. Exh. 4, the collective-bargaining
agreement with Atlantic Western expiring March 4, 1991).
Respondent’s December 5 proposal during reopened negotia-
tions maintained the contract unit. But in bargaining in Feb-
ruary for a new contract, Respondent’s first noneconomic
proposal (G.C. Exh. 15; February 18, 1991) requests deletion
from the existing unit of truckdrivers. Respondent’s second
noneconomic proposal (G.C. Exh. 18) of February 26, 1991,
contains the same unit change demand. So does the company
offer immediately preceding the lockout of March 4 (G.C.
Exh. 19). As of March 4, the record shows that although
there may have been negotiations concerning a letter of un-
derstanding to remove the truckdrivers and to place all unit
employees into one production employee category, the Union
never submitted the letter and, according to both Lange’s and
Garavaglia’s uncontradicted testimony, never agreed to any
change in the unit. Garavaglia admitted that at the March 4
meeting, immediately preceding the March 5 lockout, the
parties discussed, as they consistently discussed, the change
of the unit description so as to eliminate the separate cat-
egory of maintenance employees and include them in an
overall unit (Tr. 487–488). As Garavaglia further conceded,
Lange, on March 4, the day preceding the lockout, refused
to change the unit (Tr. 489). Moreover he conceded that he
originally wanted to eliminate maintenance employees com-
pletely from the collective-bargaining unit (Tr. 489–490) and
I have not credited his alleged March 4 change of mind
when he merely wanted them included in an overall produc-
tion unit along with shipping and receiving and truckdriver
employees (Tr. 490).21
I therefore conclude that, in the absence of Board action,
there was, as Garavaglia conceded, consistent rejection by
Lange of any alteration of the unit (Tr. 141–142). In the light
of Respondent’s continual insistence on a change of the unit;
in light of Lange’s continual rejection of such change up to
and including March 4, 1991; and in light of Respondent’s
initiation of its lockout and hiring of temporary employees
on March 5, 1991, for the purpose of exerting lockout pres-
sure on the Union to accept its March 4 offer, including the
exclusion from the unit specified in its written offer of
March 4, 1991 (G.C. Exh. 19 deleting ‘‘truckdrivers’’ from
the unit, while Respondent was orally simultaneously de-
manding exclusion of the maintenance employee category);
and in view of Respondent’s refusal to permit its union em-
ployees to continue to work beyond the termination of the
contract except on condition of accepting the terms and con-
ditions of employment last offered, I conclude that Respond-
ent initiated, and continued, the lockout of March 5, 1991,
consistent with the allegations of the complaint: in order to
coerce the Union and its employees to acquiesce in Respond-
ent’s demands in respect to terms of a new contract which
it offered on March 4, 1991. The terms of the March 4 offer
were implemented when the lockout started on March 5.
Since Respondent’s written and oral contract demands of
March 4 included the change in the unit, and since the
March 4 offer was implemented on March 5, the lockout was
necessarily in support of a contract offer which, absent the
Union’s agreement, was instituted in order to coerce the
Union into accepting a change in the existing unit, which is
inconsistent with the lawful use (not for the ‘‘sole purpose
[to] support [a] legitimate bargaining position’’) of the eco-
nomic weapon of lockout under Boilermakers Local 374 v.
NLRB, 380 U.S. 300 (1965), and Harter Equipment, 280
NLRB 597 (1986). See Teamsters Local 639 (D.C. Liquor
Wholesalers) v. NLRB, 924 F.2d 1082. While it is a legiti-
mate bargaining position to demand or request that the Union
acquiesce in a change of the unit, it is not lawful to lock out
union employees in furtherance of that demand22 rather than
seeking Board action. Compare: Riverside Cement Co., 296
NLRB 840 (1989). Consistent with the allegations of the
complaint, therefore, I conclude that Respondent’s March 5,
1991 lockout was not solely in support of a ‘‘legitimate bar-
gaining position’’ and violated its bargaining obligation
under Section 8(a)(5) of the Act. Boilermakers Local 374,
1105BRANCH INTERNATIONAL SERVICES
23 To unilaterally implement a nonconsented unit change, even
where union conduct otherwise permits unilateral implementation,
would constitute a violation of Sec. 8(a)(5) since only mandatory
subjects can be implemented post-good-faith impasse.
24 In addition, I was not impressed with Garavaglia’s credibility
concerning the Earhart incident, below in the text.
supra, D.C. Liquor Wholesalers, supra. In addition, I find
that, as alleged, the lockout of employees because they
would not accept the implemented terms and conditions of
employment and Respondent’s hiring of nonunion employees
on a temporary basis in order to perform unit work, con-
stituted unlawful discrimination within the meaning of Sec-
tion 8(a)(3) of the Act. In sum, Respondent’s March 5, 1991
lockout violated Section 8(a)(1), (3), and (5) of the Act as
alleged. Teamsters Local 639 (D.C. Liquor Wholesalers) v.
NLRB, supra.
2. Violation of Section 8(a)(5); preimpasse
unilateral implementation
Garavaglia’s insistent and continuous testimony was that
the parties never reached impasse in their bargaining. Neither
the General Counsel nor the Union has submitted evidence
or, more important, urged, that impasse was ever reached.
Respondent nevertheless, in the absence of impasse, insti-
tuted a unilateral change in the terms and conditions of em-
ployees performing unit work. Indeed, it conditioned its will-
ingness to allow its unit employees to work on expiration of
the March 4, 1991 agreement, on their acceptance of Re-
spondent’s final proposal of March 4, 1991 (G.C. Exh. 19).
This proposal had substantial changes in wages, incentive
plan, etc. It is certainly well established that absent overall
impasse, as here, an employer may not unilaterally change
the terms and conditions of employment; rather, it must bar-
gain in good faith to overall impasse before unilaterally
changing the terms and conditions of employment in an ex-
pired collective-bargaining agreement. To fail to do so, vio-
lates Section 8(a)(5) of the Act as alleged herein. NLRB v.
Katz, 369 U.S. 736, 743 (1962); Intermountain Rural Elec-
tric Assn., 305 NLRB 783 (1991), and collected authorities.
To institute an otherwise unlawful lockout in aid of such a
unilateral change, makes both the lockout and the unilateral
change a violation of Section 8(a)(5) of the Act, as alleged.
Teamsters Local 636 (D.C. Liquor Wholesalers) v. NLRB,
supra.
There is no suggestion, in defense of Respondent’s unilat-
eral implementation, that the Union’s bargaining effort was
so redolent of delay or bad faith as to constitute an excuse
or rationalization to permit the otherwise unlawful unilateral
change23 (M & M Contractors, 262 NLRB 1472 (1982);
Southwestern & Portland Cement, 289 NLRB 1264 (1988))
nor is there a suggestion of some overwhelming economic
emergency that prompted such action. See Intermountain
Rural Electric Assn., supra, citing Winn-Dixie Stores, 243
NLRB 972, 974 fn. 9 (1979), or of a strike, imminent or oth-
erwise, Marquette Co., 285 NLRB 774, 775 (1987).
3. Violation of Section 8(a)(1) and (5) of the Act;
refusal to process grievances
Union President Arthur Evans credibly testified that in a
telephone conversation occurring in the afternoon imme-
diately following the March 5 lockout, he spoke with
Garavaglia and asked him to discuss unresolved grievances
with the Union. Garavaglia told him that the contract was
‘‘dead’’ and the grievances were ‘‘dead’’ (Tr. 246). In fact,
there were no collective-bargaining or grievance meetings
between that March 5 conversation and Respondent’s April
3, 1991 letter to the Union (G.C. Exh. 28).
Garavaglia never specifically denied Evan’s testimony.
Rather, he admitted (Tr. 547–548) that Evans telephoned him
and wanted to discuss grievances. To the extent that
Garavaglia testified that he ‘‘had no problem with discussing
grievances’’ and never refused to discuss grievances but
merely wanted to discover the format in which they should
be discussed and wanted to check with the industrial board
as well as the NLRB to get the format for grievance discus-
sion, I specifically discredit his testimony. Not only was
Evans, in my observation, a credible witness, but
Garavaglia’s failure to specifically deny the colorful expres-
sion which Evans’ testimony placed in his mouth, together
with the implausible version given by Garavaglia (Tr. 547–
548), that he needed some sort of advice and guidance in
how to formulate or discuss grievances (a labor relations
consultant with more than 20 years’ experience) is not ac-
ceptable in terms of credibility.24 This adverse credibility
resolution is further supported by the Union’s immediate fil-
ing of an amended unfair labor practice charge in Case 7–
CA–31616 on March 7, 1991, 2 days after the telephone con-
versation, which Respondent received on March 11, 1991
(G.C. Exhs. 1(c) and 1(d)), according to the post office green
card in evidence. That charge amends the existing charge
solely by alleging Respondent’s refusal to ‘‘process existing
grievances.’’
What followed, again in support of the above credibility
resolution of what Garavaglia actually said to Evans, is
Garavaglia’s April 3, 1991 letter (G.C. Exh. 28) to Evans:
‘‘to clarify if there has been a misunderstanding, the Com-
pany . . . is ready and willing to have any meeting on any
outstanding grievance under the old contract.’’ I find that
there was no ‘‘misunderstanding.’’
I therefore conclude that, as alleged (complaint pars. 25(a)
and (b)), contrary to Respondent’s pleaded denial, Respond-
ent on or about March 5, by telling Evans that the pre-
existing grievances were ‘‘dead,’’ refused to negotiate and
bargain with respect to preexpiration grievances in violation
of Section 8(a)(5) and (1) of the Act. Indiana & Michigan
Electric Co., 284 NLRB 53 (1989). Respondent’s April 3 let-
ter is quite clearly an attempt to backtrack on and ameliorate
its March 5 refusal. In addition, there is evidence,
uncontradicted on this record, that Respondent, in fact, did
process all the grievances and General Counsel does not
argue to the contrary. Nevertheless, Respondent’s March 5
declaration that the grievances were ‘‘dead’’ is a refusal to
negotiate and bargain with respect to those grievances for the
period March 5 through April 3, 1991. Respondent’s April
3 letter neither acknowledges that refusal nor suggests that
it would not repeat that refusal. It merely characterizes the
unlawful refusal as a ‘‘misunderstanding’’ (G.C. Exh. 28).
Respondent’s attempt to ‘‘clarify’’ the ‘‘misunderstanding’’
clearly does not meet the Board’s test for repudiation of the
unfair labor practice. Passavant Memorial Hospital, 237
NLRB 138 (1978), requires a disavowal of the unlawful Act.
Respondent’s April 3 letter followed by almost a month the
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 As noted in the text immediately above, in view of later Board
cases, it seems that the Ninth Circuit’s broader statement, that there
may be ‘‘interference, restraint or coercion’’ generally without em-
ployee knowledge, need not necessarily be applied to cases other
than unlawful surveillance.
filing of the amended unfair labor practice charge and was
couched in terms to avoid the admission of wrongdoing. On
these elements, alone, Respondent’s April 3 letter fails to
meet the Board’s test for repudiation of an unfair labor prac-
tice (Passavant Memorial Hospital, supra at 139).
4. Alleged violation of Section 8(a)(3)
Conditioning employee reemployment on resignation of
employment as a Respondent employee
While there was no evidence of Respondent responsibility
for conditioning reemployment of unit employees upon their
resigning from Respondent as an employee employed at Na-
tional Metal Processing (as alleged in par. 24(b) of the com-
plaint), the evidence does show that old unit employees were
offered employment conditioned on their executing letters,
provided and formulated by Respondent, indicating that their
wage rates and other terms and conditions of employment
were those terms and conditions of employment unilaterally
implemented by Respondent. Since I have concluded, above,
that the unilateral implementation of terms and conditions of
employment was a violation of Section 8(a)(5) of the Act be-
cause implemented both without benefit of impasse and in
furtherance of an unlawful lockout, it follows that Respond-
ent’s conditioning reemployment of its employees on their
acceptance of these unlawfully imposed terms and conditions
of employment likewise violates paragraph 8(a)(3) of the
Act. I so find. To the extent that Section 24(b) of the com-
plaint contains further or other allegations, I recommend to
the Board that such allegations be dismissed.
5. Alleged violation of Section 8(a)(1) of the Act
Complaint paragraph 26, in substance, alleges that Re-
spondent (Garavaglia), in violation of Section 8(a)(1) of the
Act, offered to organize the replacement employees as a gift
to the Teamsters, offered assistance in obtaining the names
of the replacements and encouraged a meeting to negotiate
a collective-bargaining agreement. I recommend to the Board
that that allegation be dismissed.
The evidence undoubtedly demonstrates, and I find, that,
contrary to Garavaglia’s denial, Earhart’s testimony was
credible. Again, Earhart testified that on April 17, 1991,
Garavaglia approached him and his president, Gary Proctor,
and requested that they organize Respondent’s replacement
employees essentially because he was having trouble per-
suading the incumbent union to accept Respondent’s terms
and conditions of employment for a new contract. Upon bal-
ancing the circumstances and from my observation of the
witnesses, I credit Earhart’s testimony and do not credit
Garavaglia’s version that Earhart approached him with the
same offer. Indeed, a review of Garavaglia’s contrary
version–replete with Teamsters Local President Proctor lec-
turing his organizer Earhart on the niceties of lawful orga-
nizing–is fatuous and unbelievable.
Notwithstanding that Garavaglia’s offer to Earhart and
Proctor on April 17, 1991, certainly demonstrated Garava-
glia’s and Respondent’s bad-faith bargaining from that day
forward (at the time Respondent was engaged in grievance
handling and further contract negotiations with the Union),
there is no demonstration on this record that this conversa-
tion reached the ears of the employees. It may well be true
that certain violations of Section 8(a)(1) of the Act do not
require employee knowledge of Respondent conduct. Thus,
more than 50 years ago, the courts, enforcing the Board rule,
have held that even in the absence of employee knowledge,
an employer’s acts of surveillance and espionage on their
union activities violates Section 8(a)(1) of the Act. NLRB v.
Grower-Shipper Vegetable Assn., 122 F.2d 368 (9th Cir.
1941).25
In Fifteenth Avenue Ironworks, 279 NLRB 643 (1986), the
Board did not find a violation of Section 8(a)(1) because the
employee was not aware of the allegedly unlawful conduct.
In that case, an employer’s otherwise unlawful threat of
physical violence, made to a union official in the presence
of an employee, was held to be no violation of Section
8(a)(1) because the employee did not understand the Italian
language in which the employer’s threat was delivered to the
Italian-speaking union official. Id. at 654.
In the instant case, while Garavaglia’s invitation to Earhart
to engage in unlawful activity hardly evinces a state of mind
consistent with present or future good faith bargaining with
the Charging Party, there is no suggestion that any ‘‘em-
ployee’’ (other than Earhart himself) heard the invitation and
there is certainly no proof that the unit employees were ever
aware of this conversation or that Earhart or the Teamsters’
Union ever acted on the invitation. On the basis of foregoing
finding of lack of employee awareness, I recommend that
paragraph 26 of the consolidated complaint be dismissed.
CONCLUSIONS OF LAW
1. Respondent, Branch International Services, Inc., at all
material times, has been an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
2. The Union, Local No. 267, International Union, Allied
Industrial Workers of America, AFL–CIO, at all material
times, has been and is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees including
truckdrivers and shipping and receiving employees em-
ployed at National Steel Processing Inc., Detroit, Michi-
gan, excluding all office clerical employees, guards and
supervisors and professionals as defined in the Act.
4. At all material times, the Union, by virtue of Section
9(a) of the Act, has been, and is, the exclusive representative
of the employees in the above unit for the purposes of col-
lective bargaining with respect to rates of pay, wages, hours
of employment and other terms and conditions of employ-
ment.
5. Commencing on and after March 5, 1991, and continu-
ing to date, Respondent, in violation of Section 8(a)(5) of the
Act, has unlawfully refused to bargain in good faith with the
Union in the above unit by instituting and inaugurating a
lockout of its employees in support of its contract offer of
March 4, 1991, in order to put economic pressure on the
1107BRANCH INTERNATIONAL SERVICES
26 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Union to accept the offer which provided, inter alia, that the
Union accept a change in the bargaining unit as a condition
of agreement.
6. Commencing on or about March 5, 1991, and con-
tinuing to date, Respondent violated Section 8(a)(5), (3), and
(1) of the Act by unilaterally implementing its final contract
offer, locking out its employees, and hiring replacement em-
ployees for locked-out unit employees who, nevertheless, at
all material times desired to return to work, all without hav-
ing reached lawful impasse with the Union, and without any
other legal justification, in order to coerce the Union into ac-
cepting the terms of the unilaterally implemented offer, in-
cluding a change in the bargaining unit, a nonmandatory sub-
ject of bargaining.
7. Commencing March 5, 1991, and thereafter, Respondent
violated Section 8(a)(5) and (1) of the Act by refusing, at the
Union’s request, to entertain and process grievances which
arose under the collective-bargaining agreement which ex-
pired March 4, 1991.
8. By implementing, commencing March 5, 1992, a
change in the above-described appropriate unit without the
consent of the Union or the order of the National Labor Re-
lations Board, Respondent violated Section 8(a)(5) and (1) of
the Act.
9. By conditioning further employment on and after March
5, 1991, of its locked-out employees upon their acceptance
of the terms of Respondent’s unlawfully implemented con-
tract offer, Respondent violated Section 8(a)(3) and (1) of the
Act.
THE REMEDY
I shall recommend to the Board that Respondent be or-
dered to cease and desist from its unfair labor practices, in-
cluding its unlawful lockout, to bargain in good faith with
the Union, and to post an appropriate notice and mail to each
of its locked-out employees a copy of that notice.
I shall also recommend that Respondent be ordered to take
additional affirmative action to remedy the consequences of
the unlawful lockout of employees and its unlawful unilateral
changes in terms and conditions of employment. I shall
therefore recommend that Respondent offer its locked-out
employees, including those temporarily replaced, immediate
reinstatement to their former positions or, if those positions
no longer exist, to substantially equivalent positions, dis-
charging, if necessary, all occupants of the jobs of locked-
out employees, without prejudice to seniority and other rights
or privileges previously enjoyed. In addition, I shall rec-
ommend that Respondent be ordered to make each of its
locked-out employees whole for any loss of earnings and
other benefits suffered as a result of Respondent’s unlawful
lockout and unilateral changes in terms and conditions of
employment. Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (Cir. 6th 1971). Backpay shall be
paid according to F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as set forth in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended26
ORDER
The Respondent, Branch International Services, Inc., Au-
burn Hills, Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Local No. 267,
International Union, Allied Industrial Workers of America,
AFL–CIO (the Union) as exclusive bargaining representative
of employees in the below-described appropriate bargaining
unit by instituting and inaugurating a lockout of its employ-
ees in support of its contract offer, thus putting economic
pressure on the Union to accept an offer which provided,
inter alia, that the Union accept a change in the bargaining
unit as a condition of agreement.
(b) Refusing to bargain in good faith with the Union, as
described in paragraph (a), above, by unilaterally imple-
menting its contract offer, locking out its unit employees,
and hiring temporary replacement employees for locked-out
employees, who, nevertheless, at all material times desired to
return to work, without having reached lawful impasse with
the Union and without any other legal justification, all in
order to coerce the Union into accepting the terms of the uni-
laterally implemented offer.
(c) Implementing a change in the below-described appro-
priate unit without the consent of the Union or the order of
the National Labor Relations Board.
(d) Refusing to bargain in good faith with the Union, as
described above in paragraph (a), by refusing to entertain and
process grievances which arose under the collective-bar-
gaining agreement which expired March 4, 1991.
(e) Conditioning further employment of its locked-out em-
ployees, commencing March 5, 1991, on their acceptance of
the terms of Respondent’s unlawfully implemented contract
offer.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain in good faith with the Union as
the exclusive representative of the employees in the fol-
lowing appropriate unit concerning rates of pay, wages,
hours, and other terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed contract:
All production and maintenance employees, including
truckdrivers, and shipping and receiving employees,
employed by Respondent at National Metal Processing,
Inc., Detroit, Michigan, excluding all office clerical em-
ployees, guards, supervisors and, professional employ-
ees as defined in the Act.
(b) On request of the Union, forthwith reinstate the rates
of pay, wages, hours, or other terms and conditions of em-
ployment of bargaining unit employees that were unilaterally
changed after the expiration of the contract on March 4,
1991.
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(c) Offer to all unit employees on Respondent’s payroll as
of March 4, 1991, including laid-off employees, who were
unlawfully locked out commencing March 5, 1991, full and
immediate reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to his seniority or other rights or
privileges previously enjoyed, discharging, if necessary, em-
ployees hired from other sources, and make them whole for
any loss of wages, bonuses, holidays, vacations, and any ex-
penses covered under the expired contract as prescribed in
the remedy section of this decision.
(d) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay and other moneys due under the
terms of this Order.
(e) Post at Auburn Hills, Michigan facility and mail to
each emplyee on its payroll as of March 4, 1991, copies of
the attached notice marked ‘‘Appendix.’’27 Copies of the no-
tice, on forms provided by the Regional Director for Region
7, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain in good faith with Local
No. 267, International Union, Allied Industrial Workers of
America, AFL–CIO (the Union) as exclusive bargaining rep-
resentative of employees in the below-described appropriate
bargaining unit by instituting and inaugurating a lockout of
our employees in support of our contract offer, thus putting
economic pressure on the Union to accept an offer which
provided, inter alia, that the Union accept a change in the
bargaining unit as a condition of agreement.
WE WILL NOT refuse to bargain in good faith with the
Union, as described above, by unilaterally implementing our
contract offer, locking out our unit employees, and hiring
temporary replacement employees for our locked-out em-
ployees, who, nevertheless, at all material times desired to
return to work, without having reached lawful impasse with
the Union and without any other legal justification, all in
order to coerce the Union into accepting the terms of the uni-
laterally implemented offer.
WE WILL NOT implement the change in below-described
appropriate unit without the consent of the Union or the
order of the National Labor Relations Board.
WE WILL NOT refuse to bargain in good faith with the
Union, by refusing to entertain and process grievances which
arose under the collective-bargaining agreement which ex-
pired March 4, 1991.
WE WILL NOT condition further employment of our
locked-out employees upon their acceptance of the terms of
our unlawfully implemented contract offer.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain in good faith with the Union
as the exclusive representative of our employees in the fol-
lowing appropriate unit concerning rates of pay, wages,
hours, and other terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed contract:
All production and maintenance employees, including
truckdrivers, and shipping and receiving employees,
employed at National Metal Processing, Inc., Detroit,
Michigan, excluding all office clerical employees,
guards, supervisors and professional employees as de-
fined in the Act.
WE WILL offer to all our unit employees on our payroll
as of March 4, 1991, including laid-off employees, who were
unlawfully locked out commencing March 5, 1991, full and
immediate reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights and privi-
leges previously enjoyed, discharging, if necessary, employ-
ees hired from other sources, and make them whole for any
loss of wages, bonuses, holidays, vacations and other ex-
penses covered under the expired contract.
WE WILL, on request of the Union, forthwith reinstate all
rates of pay, wages, hours, and other terms and conditions
of employment of our bargaining unit employees that were
unilaterally changed after the expiration of the contract on
March 4, 1991.
BRANCH INTERNATIONAL SERVICES, INC.