O.K. Machine & Tool Corp.

National Labor Relations Board - Board Decisions

Aug 15, 1980

251 N.L.R.B. 208 (N.L.R.B. 1980)

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
O.K. Machine & Tool Corp. and Gyrotronics, Inc.
and Julio Garcia, Jose Allen, Keith Zukaitis,
Luis Tirado, and Hildo M. Melendez and Local
14756, United Steelworkers of America, AFL-
CIO, Party in Interest. Cases 2-CA-16004, 2-
CA-16071, 2-CA-16088, and 2-CA-16093
August 15, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On January 31, 1980, Administrative Law Judge
Benjamin Schlesinger issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and counsel for the
General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
ings,2 and conclusions 3 of the Administrative Law
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Producs
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In his findings of fact, the Administrative Law Judge found, inter
alia, that Respondent's application of the collective-bargaining agreement
and the union-security clause contained therein to Respondent's male em-
ployees was a violation of Sec. 8(a)(3) and (I) of the Act. Despite this
finding, the Administrative Law Judge inadvertently failed to include this
violation of Sec. 8(a)(3) and (I) in his Conclusions of Law We therefore
modify his Conclusions of Law accordingly.
In its exceptions, Respondent argues that the Administrative Law
Judge exceeded the scope of his authority by finding a violation of Sec.
8(a)(2) of the Act absent such an allegation in the complaint. It appears
that Respondent has misconstrued the Administrative Law Judge's Deci-
sion, since no such 8(a)(2) finuing was made therein; while aspects of the
Administrative Law Judge's remedy resemble those given for certain
8(a)(2) violations, the remedy herein is being given to correct one of Re-
spondent's violations of Sec. 8(a)(3), namely, the unlawful application of
the collective-bargaining agreement and its union-security clause to Re-
spondent's male employees. In order to remedy this violation, the Admin-
istrative Law Judge has not recommended the complete rescission of the
collective-bargaining agreement, but rather that Respondent be ordered
not to extend the collective-bargaining agreement's coverage to the male
employees. The Administrative Law Judge has further recommended
that Respondent be ordered to reimburse its male employees for any initi-
ation fees or dues paid pursuant to Respondent's enforcement of the
union-security clause. and to reinstate and pay backpay to employees dis-
charged thereunder. We find that the Administrative Law Judge's pro-
posed remedy effectuates the purposes of the Act by remedying Re-
spondent's 8(a)(3) violation, and hereby adopt it: we also adopt the Ad-
ministrative Law Judge's conclusion that the underlying issues, although
somewhat ambiguously alleged in the complaint, were fully litigated at
the hearing.
Respondent further argues that the Administrative Law Judge, by his
finding that the collective-bargaining agreement covers only Respond-
ent's female employees, and by his recommended remedy, has improperly
sanctioned a unit based on sex in violation of Hoard law and Title VII.
Our affirmance of the Administrative Law Judge's finding is not to be
251 NLRB No. 30
Judge and to adopt his recommended Order, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
O.K. Machine & Tool Corp. and Gyrotronics, Inc.,
Bronx, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Substitute the following for paragraph l(h):
"(h) Recognizing the Steelworkers as the bar-
gaining representative of any of its male employees
for the purposes of dealing with Respondent con-
cerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of
employment, unless and until such labor organiza-
tion shall have demonstrated its exclusive majority
representative status pursuant to a Board-conduct-
ed election among the employees in a unit found
appropriate."
2. Insert the following as paragraph 2(f) and re-
letter the subsequent paragraphs accordingly:
"(f) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order."
3. Substitute the attached notice for that of the
Administrative Law Judge.
thus c strued , since our decision is simply a recognition of the situation
as it nw exists as the result of Rspondent's and the Union's actions.
Thus. although we find that the collective-bargaining agreement cannot
now be extended to cover Respondent's male employees, this is not
meant to suggest that w e would in the future certify a unit consisting ex-
clusively of either Respondent's female or male employees.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT photograph or make lists of
our employees as they peacefully picket.
QAX
-He
O.K. MACHINE & TOOL CORP. 209
WE WILL NOT threaten our striking employ-
ees that they are going to be finished when the
strike is over in order to discourage them from
engaging in protected concerted and union ac-
tivities.
WE WILL NOT grant special bonuses as com-
pensation to our employees who refrain from
lawful strike activity.
WE WILL NOT harass and intimidate our em-
ployees by following them and keeping tighter
control on their movements because of their
having engaged in protected concerted and
union activities.
WE WILI. NOT issue written warnings to our
employees because they engaged in protected
concerted and union activities.
WE WILL NOT discourage protected concert-
ed activities or activities on behalf of Local
815, International Production, Service and
Sales Employees Union, by denying our em-
ployees overtime work or in any other manner
discriminating against our employees in regard
to hire or tenure of employment or any term
or condition of employment.
WE WILL NOT discharge or threaten to dis-
miss our employees, thereby discriminating in
regard to hire and tenure of employment, in
order to discourage membership in Local 815,
International Production, Service and Sales
Employees Union, or to encourage member-
ship in Local 14756, United Steelworkers of
America, AFL-CIO, or any other labor orga-
nization.
WE WILL NOT recognize Local 14756,
United Steelworkers of America, AFL-CIO,
as the bargaining representative of any of our
male employees for the purposes of dealing
with us concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or
other conditions of employment, unless and
until said labor organization shall have demon-
strated its exclusive majority representative
status pursuant to a Board-conducted election
among the employees in a unit found appropri-
ate.
WE WILL NOT give effect to the collective-
bargaining agreements effective as of May 25,
1976, and May 25, 1978, between us and Local
14756, United Steelworkers of America, AFL-
CIO, or to any extension, renewal, modifica-
tion, or supplement thereof, insofar as it ap-
plies to our male employees; provided, howev-
er, that nothing herein shall require us to vary
or abandon any wages, hours, or other sub-
stantive features of our relations with our male
employees which we have established in the
performance of the contracts, or to prejudice
the assertion by our employees of any rights
they may have thereunder.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights to self-organi-
zation, to form, join, or assist Local 815, Inter-
national Production, Service and Sales Em-
ployees Union, or any other labor organiza-
tion, to bargain collectively through repre-
sentatives of their own choosing, and to
engage in other concerted activities for the
purposes of collective bargaining or other
mutual aid or protection, or to refrain from
any and all such activities.
WE WILL offer Alberto Gonzalez, Hildo M.
Melendez, Alton Fahie, Jose Allen, William
Robinson, and Luis Tirado immediate and full
reinstatement to their former positions or, if
those jobs no longer exist, to substantially
equivalent positions, without loss of seniority
or other rights or privileges, and make them
whole for any loss of earnings they may have
suffered as a result of our discrimination prac-
ticed against them, with interest.
WE WILL restore, to the extent we have not
already done so, the assignment of overtime
work to Keith Zukaitis, Radames Garcia, Juan
Garcia, Alberto Gonzalez, Jose Allen, and
Hildo M. Melendez, as the practice existed
prior to October 5, 1978, and make them and
Edwin Negron whole for any loss of overtime
pay they may have suffered as the result of
our discriminatory reduction of overtime op-
portunities, with interest.
WE WILL pay I day's wages, with interest,
from October 20, 1978, to each of our employ-
ees who engaged in the October 1978 strike
against us, who did not receive the bonus paid
on October 20, 1978, to our nonstriking em-
ployees.
WE WILL expunge from our records and
from the employees' personnel files the written
warnings issued to Keith Zukaitis on Novem-
ber 17, 1978, and Radames Garcia on October
30, 1978, as a result of their protected concert-
ed and union activities, and make whatever
record changes are necessary to negate the
effect of the issuance of such warnings.
WE WILL reimburse our male employees for
any initiation fees, dues, or other moneys paid
or checked off pursuant to the agreement ap-
plied to our male employees, or to any exten-
sion, renewal, modification, or supplement
thereof, or to any agreement superseding it,
plus interest.
O.K. MACHINE & TOOL CORP.
x, _ , . .
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL withdraw and withhold all recog-
nition from Local 14756, United Steelworkers
of America, AFL-CIO, as the exclusive bar-
gaining representative of our male employees
for the purpose of dealing with it concerning
grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of
employment, unless and until said labor organi-
zation shall have demonstrated its exclusive
majority status pursuant to a Board-conducted
election in a unit found appropriate.
O.K. MACHINE & TOOL CORP. AND
GYROTRONICS, INC.
DECISION
STATEMENT OF THE CASE
BENJAMIN SCHLESINGER, Administrative Law Judge:
Upon charges duly filed by Julio Garcia, Jose Allen,
Keith Zukaitis, Luis Tirado, and Hildo M. Melendez,
against O.K. Machine & Tool Corp. and Gyrotronics,
Inc. (Respondents), the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 2, on December 28, 1978, issued and served on
the parties a consolidated complaint and notice of hear-
ing, thereafter amended on February 21, 1979, and fur-
ther amended at hearing, alleging that Respondent com-
mitted various violations of the National Labor Relations
Act, as amended, by surveying employees' union activi-
ties or giving the impression that their activities were
under surveillance, giving rewards for not engaging in
union activities, issuing warning notices, withholding
overtime, and threatening and discharging employees.
Respondent's answers denied the factual allegations of
the complaint and amendments and denied that it com-
mitted any unfair labor practices.
A hearing was held before me on August 13 and Octo-
ber 15-19, 1979, in New York, New York, and the par-
ties thereafter submitted briefs in support of their respec-
tive positions. I have considered the entire record of the
proceedings before me, including my observation of the
demeanor of the witnesses, and the briefs filed by the
General Counsel and Respondent. Accordingly, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
O.K. Machine & Tool Corp. and Gyrotronics, Inc.,
are New York corporations which maintain their sole
office and place of business in Bronx County, city and
State of New York. Respondent is and has been engaged
in the manufacture, assembly, and nonretail sale and dis-
tribution of handtools used in electronics and telecommu-
nications, and related products. Gyrotronics, Inc., is and
has been a wholly owned subsidiary of O.K. Machine &
Tool Corp. and, together, O.K. Machine & Tool Corp.
and Gyrotronics, Inc., have been affiliated business enter-
prises with common officers, ownership, directors, man-
agement, and supervision; have formulated and adminis-
tered a common labor policy affecting employees of their
operations; have performed services for each other; have
shared common premises and facilities and have inter-
changed personnel; have jointly manufactured and mar-
keted their products; and have held themselves out to
the public as a single integrated business enterprise. I
find, as Respondent admits, that O.K. Machine & Tool
Corp. and Gyrotronics, Inc., constitute a single integrat-
ed business enterprise and a single employer within the
meaning of the Act.
Annually, Respondent, in the course and conduct of its
business operations, sold and shipped from its New York,
New York, facility goods and materials valued in excess
of $50,000 directly to points outside the State of New
York. Respondent admits, and I find, that it is and has
been at all times material herein an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE ABOR ORGANIZATIONS INVOLVED
Respondent admits, and I find, that Local 815, Interna-
tional Production, Service and Sales Employees Union
(Local 815) and Local 14756, United Steelworkers of
America, AFL-CIO (Steelworkers), are and have been
at all times material herein labor organizations within the
meaning of Section 2(5) of the Act.
In or about 1965, Steelworkers and Gyrotronics, Inc.,
entered into a collective-bargaining agreement for the
first time, and said agreement was renegotiated by them
from time to time. Except as hereinafter explained, the
last agreement' between them was made on July 7, 1976,
effective as of May 25, 1976, and was to expire by its
terms on May 24, 1979. In it, Gyrotronics, Inc., recog-
nized Steelworkers as the sole and exclusive bargaining
agent for:
. . its maintenance and production employees, ex-
cluding supervisory employees, salesmen, office and
clerical employees, designers, and all the employees
with authority to hire, discharge, promote, disci-
pline or otherwise effect changes in the status of
employees, or effectively recommend such action.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement and Findings of Protected
and Concerted and Union Activities
Until October 5, 1978,1 and perhaps even later, the
collective-bargaining agreement, although covering a
production and maintenance unit, was applied only to
female employees, who were the only employees entitled
to join the Union. When male applicants and, later, em-
ployees Keith Zukaitis and Alberto Gonzalez asked their
interviewer, Thomas Rivera, Respondent's manufactur-
ing manager and an admitted supervisor, whether there
was a union contract in the plant, he replied that there
was a contract, which was only for the women, and a
I All dates refer to the year 1978, unless otherwise stated.
OX,. MACHINE & TOL CRI)P 211
union, which also was for the women.2 They were also
told not to worry, because they, as males, would receive
as much as the females, if not more.a The record is
barren of any proof that the males were notified by
anyone that there was an agreement which covered them
or that there was a union which represented them with
an agreement requiring that they join a union.
When the males became disgruntled with Respondent's
treatment of them, they sought the aid of Local 815.
which on October 4 made a demand upon Respondent
for recognition. The demand was rejected; and many of
the male employees commenced a strike on October 5.
For a day or perhaps only one-half hour, the strike was
supported by several female employees. I find that the
strike was concerted and protected, because it was insti-
tuted and maintained for recognition and because the em-
ployees who engaged in it were not at all aware that the
union agreement covered them, which I find, in alny
event, it did not. L.R.B. v. Wacon Insulation Inc., 5th7
F.2d 596 (4th Cir. 1977).
On October 5, Local 815 filed a petition for represen-
tation with Region 2, and the representation hearing
commenced on October 2(). A week before, on October
13, Respondent filed unfair labor practice charges, alleg-
ing that the employees were striking for recognition in
the face of a valid collective-bargaining agreement which
covered their employment. The representation hearing
never resulted in a fornial decision, because Local 815
apparently backed away from its contest with the Steel-
workers as to whether there was a contract bar, and the
male employees agreed to return to work. Respondent's
actions during and following the strike, alleged by the
General Counsel as retribution and discipline for the
male employees' actions, are the subjects of this proceed-
ing.
B. Conduct During the Strike
1. Photographing and listing of names of pickets
On the first day of the strike, and shortly after, David
Weltman, Respondent's vice president, photographed the
pickets. At the same time, Supervisor Rivera walked
around the picket line, making a list of the names of the
pickets. The General Counsel alleges that these actions
constitute surveillance, tending to restrain the pickets in
engaging in their protected concerted and union activi-
ties.
Respondent argues that its actions were justified be-
cause the photographs were taken as proof in connection
with its legal proceeding claiming a violation of Section
I do not credit Rivera's denials of these interviews. not only because
he could not specifically remember them but also because he at firstl ad-
mitted that Zukaitis may have asked whether there was a union. and thcn
immediately and specifically recalled that he did not talk with Zukaitis
about a union noted in Rivera's narration much hesitation, punctuated
by his clearing of his throat when asked about many of the specific viola-
tions alleged herein, and the deliberation he exercised when testifying to
his close watch osler the employees who returned after the strike had
ended
3 The collectise-bargaining agreement required sage increases of 15
cents per hour on May 24. 1977. and May 24. 1978. Employee Tirald
received a 60-cent increase on May 2. 1977. and, in addition to the Nlir
24. 1978, icrease, received a "merit" Increase of 2(1 cents otn September
25. 1978, after complaining that he was not paid enough
8(b)(7)(A) and as proof of vandalism. I find that thesc
have no merit. There was no vandalism or mischief on
the first day of the strike: nor did Respondent contenm-
plate the filing of an unfair labor practice charge under
Section 8(b)(7)(A) as early as the first day of the strike.
It was only later, as an afterthought and as part of the
maneuvering to combat l.ocal 815's representation peti-
tion, that Respondent conceived the notion that its
agreement with Steelworkers covered the strikers.
4 Ac-
cordingly, I find no justification for Respondent's actionls
and find a violation of Section 8(a)(I) of the Act. Lram/l
Leiurclics. Inc., 213 NLRB 17 (1974), enfd. 523 F.2d
814 (th Cir. 175); oloniul/ lavn .Nuring Ionm. I..
218 NI.R3 1I(X)7 (1975), moditfid 542 1'.2d 91 (7th Cir
197h).
2. The threat to Robinson
On Friday. October h, employee William Robinsoni.
who had worked the previous day. joined the strike. He
returned to the premises later in the day and requested
Rivera's permission to enter the plant and retrieve hts
clothes. Rivera follow,.ed him to the locker room, stating
that the strikers did not have a leg to stand on and that
they were going to be finished when the strike w'as over.
I find that this threat, which was undenied and effective
enough so that Robinson returned to work on the fol-
lowing Monday, violated Section 8(a)(1) of the Act by
its intended restraint upon employees' Section 7 rights to
engage in self-organization and protected concerted ac-
tivities.
3. Bonuses
On October 20. Weltman called a meeting of all non-
strikers, thanked them for being loyal to Respondent.
and announced that they each had a bonus coming to
them. Later that day, each employee then working was
given a check representing I day's pay. I find that to be
a violation of Section 8(a)(l) of the Act, because it tends
to discourage employees from engaging in activities pro-
tected by Section 7 of the Act. Aero-Motive Manufactur-
ing Company, 195 NLRB 790 (1972), enfd. 475 F.2d 27
(6th Cir. 1973).
C. Conduct After the Strike
1. Reassignment and surveillance of strikers
The General Counsel alleges that, when the strike
ended on October 20 and the strikers returned to work
on October 23, Zukaitis and Julio Garcia were reas-
signed to work at locations closer to Rivera, so that
Rivera could watch over their activities, in violation of
Section 8(a)(1) of the Act. There is no question that their
assignments were changed after the strike and that their
new assignments required them to work closer to Rivera.
Zukaitis was reassigned from another room to 10 feet
a See c 111. l3.A /Fr'
O.K. MACHINE & TOL COR !!
212 I)ECISIONS OF NATIONAI. LABOR RELATIONS BOARD
away from Rivera, and Garcia from 15-20 feet to 2 3
feet away. 5
However, I find Respondent's explanation of the reas-
signnnt s plausible and justified-that there was no
work for Zukaitis in the heat treating room, and no one
did Zukaitis' former work. When heat treating resumed 2
or 3 weeks later, Zukaitis was assigned to his former job.
Garcia, a machine operator, often worked at different
machines i the plant. A new employee had been work-
ing on the gun-boring machine, which Garcia worked
before the strike, and was progressing to a fully trained
operator of that machine; and Garcia's assignment to an-
other machine after the strike required the skills which
he possessed. I conclude that Respondent did not reas-
sign these two employees solely or partly so that Rivera
cotuld keep a watchful eye on them during the workday.
I also conclude, however, that Rivera followed certain
of the strikers around the premises and kept tighter con-
trols on their whereabouts. In this regard, I credit Zukai-
tis' and Garcia's testimony that they were watched at
work, when they left their work stations, and even when
they went to the bathroom. Rivera denied any such con-
duct, but his testimony was not credible. While denying
that he followed employees after the strike, he admitted
that he followed Garcia to the heat treating room where
Garcia was washing glasses in special equipment. Garcia
accused Rivera of following him, to which Rivera re-
plied that, as a supervisor, he had a right to do so. Fur-
ther, Rivera testified that, because the situation was ex-
plosive after the strike had ended, he ignored certain em-
ployee conduct, such as "goofing off" or going to the
bathroom, in order not to increase the tension. Yet, he
followed Garcia and Zukaitis to the bathroom, either
physically, or by watching and timing them, watched
Garcia when he talked with other employees, and asked
Zukaitis (who was leaving his work station) where he
was going-conduct which was antithetical to Rivera's
professed desire not to create further problems. I find
adequate proof of a violation of Section 8(a)(1) of the
Act. ;
2. Denial of overtime
The General Counsel complains that the strikers were
deprived of overtime upon their return to work. Julio
Garcia testified that he was never offered overtime; and
Zukaitis' and Allen's testimony indicates they were each
offered overtime only once, on December 5 and Novem-
ber 8, respectively, which they declined. Respondent's
overtime records reflect that, during the 5 full weeks
before the week of the strike, substantial overtime hours
were worked by Zukaitis (13-1/2), Radames Garcia (12-
1/2), Julio Garcia (19-1/2), Alberto Gonzalez (32), Jose
Allen (26-3/4), Hildo M. Melendez (33), and Edwin
' I rado tstified hal (Garcia was reasigled to a positionll of 20-25 feet
froil Risera (iarcia. Allen. anld Zukaitis located Garcia mriuch closer to
Rikera I credit them
` In so finlding I do 11n rely upoll Rivera's timing of Alhberto (ionzalez
at Ils ork at;tion hllere " as ai proper business motivation hIr Rivera to
ascel;lain whelhlr (ti/ale/ or his Iachine as the cause of decreased
productiol l'that it was not rlotii, ted h a desire io inhibit (ionalez'
allo1111 or conce( rted altitlVitis is dellllmtiratcd by Ihe fact that Risera had
originall reqlllesed I.ulls irad;l, .a supporter of Local 15, to time (ilon-
zalz ()nIy vhell irado efused to do so did Rivera assume the task
Negron (21-3/4).7 During the first 5 weeks after the
strike ended, the same employees did not work any over-
time, except for Melendez (4-3/4) and Negron (4-3/4).
Clearly, there was no lack of overtime work; the total of
overtime hours worked of 1,083 hours during the 5
weeks prior to the strike increased to 1,223-1/2 hours
during the 5 weeks after the strike.
Respondent does not offer any explanation why the
strikers constituted a rather unique group of employees
who received no overtime." Rather, it relied solely upon
its practice to offer overtime for work on a particular
machine to the employee who worked on that machine
during the day, and when there was no such work, to
offer other jobs by seniority. However, overtime work
on Allen's and Garcia's machines was not offered to
them, but was worked by nonstrikers. Negron worked
three-fourths of an hour during the week ending on Oc-
tober 28 and 4 hours the next week, whereas fellow ship-
ping employee Scott worked 19 and 16 hours of over-
time, respectively, those 2 weeks, and 16 and 13 hours
the next 2 weeks, when Negron did not work.
There is sufficient evidence of the exclusion of strikers
for overtime work to support a finding of a violation of
Section 8(a)(3) and (1) of the Act, because they engaged
in protected concerted and union activities.
9 Mohican
Mills. Inc., 238 NLRB 1242 (1978).
3. The discharge of employees for failure to pay
union dues
On November 27, Respondent discharged employees
Alberto Gonzalez, Hildo M. Melendez, Alton Fahie,
Jose Allen, and William Robinson because they failed to
pay dues and initiation fees to the Steelworkers. Eleven
days earlier Luis Tirado also lost his job when he made
known his intent not to pay his dues and, given the
option of remaining employed for only 7 more days,
chose to leave immediately. These discharges were insti-
tuted by letter, dated November 13, from Steelworkers
Staff Representative Rosario to Respondent advising that
20 male employees "have refused to execute the check-
off authorization cards that were given to them" and that
"this is in direct violation" of the collective-bargaining
the General Coutsel claims for the first time in his brief that J Cruz
anid M Castillo were also deprived of tovertime. but neither was named it
the complaint or in the General Counsel's bill of particulars. Because the
bill of particulars serves as a precise aid specific notice of what the Gell-
eral Counsel is complaining about, it is inappropriate to permit the expan-
sionll of the conmplaint at this stage of this proceeding
s Of the nonstrikers who worked little or no overtime after the strike,
six never worked overtime ad five worked from 2 to 7 hours before the
strike ad onile wlrked 5 hours only after the strike
' lln support of this allegation. the General Counsel also relies upon an
alleged statemenlt on October 20 by employee Lillian Melendez. Rivera's
assistant, in Rivera's presence, made in answer tol Garcia's statement that
the employees were going to return to work on October 23. that the
strikers might return, but they were nt going to he given any more
overtime. Only empltoyee Alberto Gonzalez testified to this incident.
which Rivera denied Garcia. whose statement allegedly prompted Me-
lecdez' reply, and who, according to Gonzalez, was standing only 2 3
feet aa? frloml Mlclndez. was never questotied regarding the threat: and
froin Iis silence. I infer that he would 1otl have corrhoborated G(illalez'
testimonlly Further. because Mclendez did not initiate the assignment of
osertirne. I find it inlprobable thalt she would have made such a threat I
coinclude that the General Counlsel has not proved. by a preponderance
of tie esidence. that such a statement was made
O.K. MACHINE & TOOL CORP. ' lt
agreement, and demanding that Respondent "take imme-
diate steps to correct this situation." By letter dated No-
vember 16, Respondent advised those 20 employees that
they must pay their dues either directly to the Union or
by checkoff authorization, or face termination. Many em-
ployees complied; however, by letter dated November
27, the named employees (except Tirado) were dis-
charged. There is no question that they and Tirado did
not comply with the agreement's union-security provi-
sion.
There is also no dispute that Steelworkers had never
before formally requested that its union-security clause
be applied to male employees and that no male employ-
ees were members of the Steelworkers prior to the strike.
Nor is there any dispute that male employees were not
discriminated against under the terms of the collective-
bargaining agreement, that is, that they were given lesser
terms, conditions, and benefits than those set forth in the
agreement.
However, there is a critical issue whether males were
intended to be included within the recognized and facial-
ly appropriate unit set forth in the agreement. Respond-
ent wrote in its brief that: "The anticipated and usual
product of collective bargaining is a written agreement
between an employer and its employees' union. In part,
this written reduction of the parties' understandings sets
forth a discernible dynamic relationship between the bar-
gaining parties." The issue is whether, from the perspec-
tive of both bargaining parties, the dynamism was meant
to affect male employees equally with females.
From the Steelworkers' perspective, it was not so in-
tended. Only after the strike did it attempt to apply the
union-security provision to male employees; yet, as early
as 1970, Tirado was employed as an assembler, at which
time there were also employed a male porter and two
male toolmakers. In about 1974, three males were em-
ployed in Respondent's shipping department, and another
male assembler was hired.' 0 By 1977, there were three
males in the assembly department, three to four in the
machine department, two in the shipping department,
and one to three inspectors. But Rosario testified at first
that there were no male employees until 1978, later
changing his testimony to concede that, about 1973,
there were male employees in the production and main-
tenance unit, as well as male tool-and-die makers.
Although both Rosario and Rivera conceded that they
knew that there were no male employees who were
members of the Steelworkers, Weltman originally denied
similar knowledge, yet admitted in his prehearing investi-
gatory affidavit that, to his knowledge, no male had
joined the Steelworkers. Other than bearing upon Welt-
man's motives for misstating his knowledge, it is not par-
ticularly important that he knew or did not know. For
the purpose of the Steelworkers' position, as a party to
the agreement, it is important to discern why Rosario
took no action to insure compliance with his bargain. He
stated that, when he first ascertained that there were
'o These findings are based primarily on the credited testimony of
Tirado. Supervisor Rivera conceded that, in 1975, there were two to
three male employees in the production and maintenance unit. not includ-
ing tool and die makers Weltman's testimony that there were male pro-
duction employees only since the end of 1977 or early 1978 is inaccurate
male employees in 1978-testimony I have already dis-
credited-he attempted to obtain voluntary compliance
by the males, without calling upon Respondent for help.
Thus, said Rosario, he personally spoke with the males
to convince them to pay dues or sign checkoffs; but that
the males rejected his overtures because they desired to
be "free riders," taking advantage of the Steelworkers
contract without paying for its services. However, he
never asked Zukaitis, whom he stated he met in early
1978; and Gonzalez also denied that he was asked by Ro-
sario. Rivera was similarly unaware that Rosario made
any attempt to sign up the males. In light of Rosario's
admission that he knew of male employees since at least
1973, I do not credit his testimony of belated efforts in
1978 to persuade them to become members of the Steel-
workers. It
Nor am I persuaded that, in July 1978, Rosario ap-
proached Kober, another of Respondent's officers, for
aid in persuading the males to join the Union. According
to Weltman, with whom Kober supposedly consulted,
Respondent's position was firm in refusing to assist the
Steelworkers in its internal problems and that position,
testified Rosario, was relayed to Rosario. I can well ap-
preciate Respondent's reluctance to inject itself at that
point, preferring to wait for the Union's efforts to en-
force the contractual obligation of its union-security pro-
vision. However, what is alleged to have happened in
July is quite contrary to the later events of November,
when the Union requested that Respondent take immedi-
ate steps to cure the failure of the male employees to
sign checkoff authorizations. Respondent immediately
complied, voluntarily converting what was an illegal
demand by the Steelworkers, International Union of Elec-
trical, Radio and Machine W'orkers, Local 601, AFL-CIO
(Westinghouse Electric Corporation), 180 NLRB 1062
(1970), into a valid demand for compliance with the con-
tract. Although the complaint lacks any allegation of a
violation of Section 8(a)(2) of the Act, the actions of Re-
spondent clearly indicate its willingness to do the Steel-
workers' bidding and create substantial doubts that the
conversation between Kober, who did not testify, and
Rosario ever took place. I find that it did not.
Rather, I find that Rosario was convinced that the
agreement did not cover the males. There is some con-
tractual basis for this finding. 2 Although Respondent
takes the firm position that all males were included in the
production and maintenance unit, Rivera's testimony
L In light of the strike later in the ear. Rosarlo's testminen mnakes
little sense The male enmployees did not wish to remain "free riders' Io
take adalanlage of the Stecliorkers conltract Rather, he ih1iitlgil ie
terms negotialed b the Stcelsorkers Imeaning the females) did nol sati-
fy the needs of the males. he! swanted a new labor orgalnl7tn, or
which they sould presnrm;lbl pas dues. so that they s ulid hbe f.llrls rep
resented, which they thought , ais lacking in the hen prscnt sitilillol
12 There isar so an historical hasis foir the disislln f co, cragc \ hl
(iyrotronics. Inc. as first org.anized bh Steelworkers. it sas inrls for ils
Coiinner Street premises. , hich 'sas engaged in the a,,ssemhbl f Respmid
ent's product, work performed almost exclasi'el hN sA, omren i sroin
ic. Inc. also corlducled operaiolln at ilo other Icat;lllins, sshc rI ,I-
chines scre operated and miallltained h male emnploees. ilot repi eslied
h the Sleel\ orkers X5len the lter .o prenises closed.i Ihe i clhtw
.
sere ritoed and the nlee rploce. src a.pparent}5 (tirlIerrdtl (', 1i-
ners Street ii ahmillt I7
OK. MACHINE & TOOL CORP 213
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
raises a question of what crafts were intended to be in-
cluded in that unit. To him, Tirado, who described him-
self as an assembler, was a setup man, and setup employ-
ees (all of whom are males) were not production and
maintenance employees, but were as close as one can get
to tool and die makers, which all parties concede are not
part of the unit, although they are not specifically ex-
cluded from the unit.
Rosario testified that production and maintenance em-
ployees covered by the contract were assemblers, setup
men, helpers, machine operators, and shipping and re-
ceiving employees. In the investigatory affidavit given
by him to the Region prior to the hearing, however, Ro-
sario averred that the contract covered all assemblers
and that, in 1973, Respondent refused to recognize the
Steelworkers for setup employees, machinists, and other
employees besides assemblers. Further, he stated:
About five (5) years ago, we had a brief strike over
benefits and recognition for the Steel Workers as
representative of the men. Only the women struck
and we went back without ever resolving the
matter.
The "men" he referred to included not only tool and
die makers but also production and maintenance, includ-
ing shipping, employees. Finally, Rosario also stated in
his affidavit that Respondent refused to apply the con-
tract to all of its production and maintenance employees.
Rosario's statement, which I find more truthful than
his oral testimony, Alvin J. Barr and Co. Inc., 236 NLRB
242 (1978),': is sufficient to show Respondent's knowl-
edge that its agreement with Steelworkers did not cover
the male employees. Further, I find such knowledge
from its response to Local 815 and the strike on October
5. It was silent about any contract when Local 815 made
its demand for representation, merely referring that
union to the procedures under the Act. Then, on Octo-
ber 6, Weltman advised a meeting of the employees who
had reported to work that they were free to select the
union they wanted, and to decide the union question as
they saw fit, calmly and without pressure or intimidation.
Although he then distributed and discussed the benefits
of a premature extension agreement allegedly bargained
by the Steelworkers during early 1978 and ratified by the
Steelworkers' female members, at no time did he make
clear that the agreement covered males and that males
had no rights to gain recognition for a different union.
Curiously, the extension agreement revises the defini-
tion of the unit, omitting the inclusion of "maintenance"
employees from the production and maintenance unit
and specifically excluding from the unit "toolmakers."
Perhaps that description is a little closer to the actual
practice of the parties, and may explain the failure of the
Steelworkers to apply its union-security provision to the
porter. In any event, it is clear that Respondent deemed
setup employees to be akin to tool and die makers, and
not covered by its collective-bargaining agreement. I
find that the discharge of Tirado and Robinson, both
setup employees, was wholly unwarranted because they
were not considered to be within the appropriate unit
: [nforcement denied on other grounds 598 F.2d 1267 (2d Cir 1979)
and under no circumstances could the union-security
provision be applied to them. Their termination was an
effort to encourage their membership in Steelworkers
and was wholly outside the proviso to Section 8(a)(3) of
the Act.
Further, I conclude from all the credited evidence 4
that male employees were not considered production and
maintenance employees within the meaning of the agree-
ment's recognition provision. The application to them of
the union-security provision was patently in violation of
Section 8(a)(3) and (1) of the Act, in order to rid Re-
spondent of discordant employees and the threat of orga-
nization by Local 815 or another labor organization. 15
4. The discharge of Edwin Negron
The General Counsel contends that employee Edwin
Negron was discharged by the Employer on November
20, not because of his unexcused absences from work, as
Respondent argues, but because of his activities on behalf
of Local 815 and his concerted protected activities. In
support, the General Counsel relies exclusively' 6 on Re-
spondent's earlier August 4 commendation of Negron as
a capable employee and on a review of the Respondent's
records of absences, showing other employees who were
not disciplined despite their equal or more serious inci-
dents of absenteeism, thus proving disparate treatment.
To prove disparate treatment, it must be demonstrated
that conduct of employees in like situations was treated
dissimilarly. Here, there is no proof of any similarity of
violations which might support the inference that
Negron was selected for discipline, whereas others were
not. The General Counsel relies only upon a summary of
absences of employees before the strike, arguing that be-
cause many employees had the same number of or more
absences than Negron, and they were not discharged, it
follows that Negron was treated differently, and the dif-
ferent treatment was solely the result of Negron's partici-
pation in the strike.
The difficulty with that argument is that the chart
does not differentiate between excused and unexcused
absences; and Negron was dismissed because of a series
of unexcused absences. 7 First, he was absent without
justification on October 23 and 26, for which he was
warned in writing. Then, on Friday, November 17, he
announced late in the day that he was leaving early for a
doctor's appointment, contrary to Respondent's policy
that employees were to give ample notice of early depar-
tures so that it could plan its workload for that day. Be-
14 As noted, I have generally credited Rosario's affidavit rather than
his oral testimony, which contained numerous contradictions and incon-
sistencies. It as obvious that Rosario wsas attempting to tailor his ver-
sion of the facts to protect Respondent's actions and the Steelorkers'
claim to a broader jurisdiction
s Responldent argues that this finding represents a vast variance with
the the t ory of the complaitl herein. The complaint. even if not precisely
on point and if somewhat ambiguous, may fairly be read to give Re-
spotidel notice of the essence of the allegation; and the record devel-
oped herein demonstrates that all facts and theories were fully litigated
by Respondent
"' Negron did not testifr
A Employee Gonzalez testified that, if all employee gave an excuse for
his absence, it would niormally be accepted; and that an employee was
asked about an absence only when he did not notify Respondent about it.
O.K. MACHINE & TOOL CORP. 215
cause of the backlog in Negron's work area, his early
leaving could not be approved. However, an accommo-
dation was agreed upon, on the conditions that Negron
work on Saturday, November 18, and that he bring to
work on Monday a note from his doctor. Despite Ne-
gron's agreement, he did not work on Saturday and ap-
parently came to Respondent's plant on Monday but
stated that he was not working. As a result, he was ter-
minated that Monday. When Negron reported to work
on Tuesday, but without any medical excuse, his termi-
nation was reaffirmed.
I conclude that Negron was terminated for cause, that
he was not treated disparately, and that Respondent did
not violate Section 8(a)(3) and (1) of the Act.
5. Warnings to employees
On November 17, Zukaitis, apparently having the
memorandum of the extension agreement in hand, asked
Steelworkers Shop Steward McCray when the current
agreement expired, stating that there was some confusion
among the employees. McCray refused to answer be-
cause she was eating. Zukaitis then said that the employ-
ees were being misled when they were told about the
new contract' 8 and returned to McCray after lunch to
ask for it again. She refused to give him a copy, and a
verbal altercation ensued, with some yelling, and foul
cursing by McCray, and some disruption of work. Not-
withstanding that both McCray and Zukaitis participated
in the argument, only Zukaitis was given a warning
which, contrary to Respondent's policy, was not a first
or second warning, but an "only" warning, with the next
incident subjecting Zukaitis to "immediate dismissal."
Respondent offered no explanation for its one-sided
treatment, its failure to investigate the dispute, and its
warning directed solely at Zukaitis and not McCray,
whom employees often heard shouting and cursing. I
infer that Zukaitis, recently returned from the strike, was
ripe for discipline; while McCray, who worked during
the strike and was the Steelworkers shop steward, was
immune from discipline. Zukaitis was treated disparately
from McCray, as a result of his activities in the strike,
and in violation of Section 8(a)(1) of the Act.
The General Counsel also contends in his brief, in
most general terms, that, immediately after the strike
ended, Respondent issued a spate of warnings, without
any appreciable increase in lateness and absence patterns,
thus showing a pattern of discipline to punish the strikers
of their concerted and union activities, rather than for le-
gitimate purposes. The complaint does not allege nearly
so broad an allegation, but rests on specific warnings to
Radames Garcia on October 27 and 30, Edwin Negron
on October 27, Alton Fahie on November 2 and 8, and
Zaida Christian on November 2.'9 The General Coun-
sel's brief makes no argument specifically addressed to
these warning notices (other than Negron, which I have
determined, supra, did not violate the Act), yet there is
'8 Gonzalez understood that, by agreeing on October 20 to return to
work, the Steelworkers contract was to expire in 1979 and that the males,
after waiting for 3 months, would then be able to have Local 815 repre-
sent them. Obviously, an extension of the agreement to 1981 would have
been of substantial interest to the male employees.
19 None of these employees testified
no allegation that the claims have been abandoned.
Indeed, in a proposed order submitted with the brief, the
General Counsel directs specific relief to cure these al-
leged violations; and so, with little guidance, they must
be disposed of.
The warnings to Fahie concerned his refusal to follow
instructions of a supervisor and his alleged encourage-
ment of another employee to refuse to follow a supervi-
sor's instruction. Before the strike, another employee
(Pell) received a warning for ignoring a supervisor's
instructions. I find nothing in the record to prove that
the warnings to Fahie were disparate, unfounded, unwar-
ranted, or resulted from Fahie's participation in concert-
ed and protected and union activities.
Radames Garcia's first warning was for lateness and
failure to call in; the second was for excessive lateness.
There is a patent difference between the two warnings-
one is levied because the employee has not notified Re-
spondent of lateness ahead of time, so that Respondent
could plan its workday; the other demonstrates merely a
pattern of lateness, even with prior notification, which
indicates that the employee is, in general, unreliable.
There is no proof that any other employee had not
called in ahead of time to notify Respondent of his late-
ness and was not issued a warning. As a consequence,
the first warning is not disparate, and proof is wholly
lacking that it was prompted by Garcia's participation in
the strike. The second warning is a different matter. Al-
though there were warnings of two employees earlier in
1978 solely for lateness, there is sufficient question raised
by the events herein why Garcia was selected for this
warning after the strike. In particular, Garcia was late
three times during the 2 weeks ending November 4.
There were other employees, all nonstrikers, who were
late more times during the same period who were not
warned: Caraballo (6, and 3 absences), Grady (5), L. Me-
lendez (4), M. Morales (4), R. Ramirez (4), C. Rivera (4),
and Santiago (4). The General Counsel presented suffi-
cient proof to shift the burden of an explanation (or, at
least, a burden of persuasion) to Respondent, which has
remained silent. I find this warning to be disparate, pre-
textual, and caused solely as a result of Garcia's partici-
pation in the strike.
Christian was warned because she was late 10 times in
the prior 30 days and was absent 4 times. Her record of
lateness and absenteeism was certainly not the epitome of
admirable employee conduct. For the weeks ending Sep-
tember I to November 4, 2 days after the date of the
warning, she was late on 34 days and absent on 7-1/2
days, yet she had never been warned at an earlier date.
Her tardiness bested all other employees, although some
ran not too distant seconds: I. Santiago (27, and 7 ab-
sences), L. Melendez (24), A. Hanzah (21), C. Rivera
(20), and C. Williams (18). Only Williams was warned by
Respondent, on the same day as was Christian, for her
latenesses and absences (4 in the prior week).
It is difficult to discern a rhyme or reason in Respond-
ent's policy, but that does not necessarily support the
General Counsel's theory. There must be some proof,
even if circumstantial or inferential, that action was
taken against Christian in violation of the Act. The Gen-
O.K. MACHINE & TOOL CORP.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eral Counsel relies upon the fact that Christian was one
of the very few females who joined in the strike, albeit
very briefly. That is correct. It is also correct that she
immediately returned to work, continued throughout the
strike, and was awarded with a bonus together with all
of the other nonstrikers. Despite the fact that there are
suspicions of a violation of the Act, the General Counsel
has not proved its allegation by a preponderance of the
evidence.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON INTERSTATE COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
I. Gyrotronics, Inc., and O.K Machine & Tool Corp.
constitute a single integrated business enterprise and a
single employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. Local 815, International Production, Service and
Sales Employees Union and Local 14756, United Steel-
workers of America, AFL-CIO, are labor organizations
within the meaning of Section 2(5) of the Act.
3. By photographing and making lists of employees as
they peacefully picket; by threatening striking employees
that they are going to be finished when the strike is over;
by granting special bonuses in compensation to employ-
ees who refrain from lawful picketing; by harassing and
intimidating employees by following them and keeping
tighter controls on their movements; and by issuing
warning notices to employees because they engaged in
protected concerted and union activities, Respondent has
engaged in unfair labor practices in violation of Section
8(a)(1) of the Act.
4. By denying overtime work to employees because
they engaged in protected concerted and union activities
and by discharging employees in order to discourage
their membership in Local 815 and encourage their mem-
bership in Steelworkers, Respondent has engaged in
unfair labor practices in violation of Section 8(a)(3) and
(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not otherwise violated the Act,
except as specifically found herein.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act, I shall order it to cease and desist there-
from in the future.
Having found that Alberto Gonzalez, Hildo M. Melen-
dez, Alton Fahie, Jose Allen, William Robinson, and
Luis Tirado were discharged in violation of Section
8(a)(3) and (I) of the Act, I shall order that they be of-
fered immediate and full reinstatement to their former
positions or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges previously enjoyed, and
that they be made whole for any loss of earnings or
other benefits they may have suffered as a result of the
discrimination practiced against them. Backpay shall be
computed in the manner provided in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest computed
in accordance with the formula set forth in Florida Steel
Corporation, 231 NLRB 651 (1977).20
Having found that the payment of the bonus of I day's
pay violated Section 8(a)(l) of the Act, I shall order Re-
spondent to pay all striking employees who were em-
ployed at the conclusion of the strike and who did not
receive the bonus, the amount of I day's pay, with inter-
est as set forth, supra.
Having found that Respondent withheld overtime
work from Keith Zukaitis, Radames Garcia, Juan Garcia,
Alberto Gonzalez, Jose Allen, Hildo M. Melendez, and
Edwin Negron upon their return to work, I shall order
that Respondent, to the extent it has not already done so,
immediately restore them to the assignment of overtime
work as the practice existed prior to October 5, 1978,
and make them whole for any loss of earnings and com-
pensation, with interest as set forth, supra, they may have
suffered as the result of the discrimination again them by
discriminatorily denying the overtime.
Although there is no allegation of a violation of Sec-
tion 8(a)(2) of the Act,2 ' Respondent overtly extended
the coverage of its contract, forced male employees into
paying dues to the Steelworkers, and discharged those
who refused to pay their dues and initiation fees. In
order to fully effectuate the purposes of the Act, I find it
obvious that the existing agreement between Respondent
and Steelworkers was not intended to apply to male em-
ployees and may not in the future apply to male employ-
ees. In so ordering, I recognize that the remedy leaves
an existing agreement applicable only to women, a dis-
criminatory sexual division that the Board would never
tolerate under Section 9 of the Act. Cuneo Eastern Press,
Inc. of Pennsylvania, 106 NLRB 343 (1953); United States
Baking Company, Inc., 165 NLRB 951 (1967); Land Title
Guarantee and Trust Co., 194 NLRB 148 (1971). Howev-
er anomalous as that may be, no allegation of the com-
plaint attacks the Steelworkers contract directly; and
relief requiring Respondent to withhold recognition of
the Steelworkers and to cease giving effect to the agree-
ments for all purposes, would, in these circumstances, be
inappropriate. This is not to say that the relief granted
places an affirmative duty upon Respondent to recognize
and continue dealing with the Steelworkers as the agent
for such a patently inappropriate unit. Further, notwith-
standing the absence of an 8(a)(2) allegation, the relief
which I recommend would be lacking if I were to omit
20 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
The General Counsel's motion to increase interest to 9 percent per
annum is hereby denied. Michael N. Schaefer. an Individual Proprietor, 246
NLRB No. 29 (1979).
2' The unfair labor practice charges filed in Cases 2-CA-16088 and 2-
CA-16093 alleged an 8(a)(2) violation, but the complaint is silent. How-
ever, Steelworkers is named in the caption as a Party in Interest.
O.K. MACHINE & TOOL CORP. 217
the customary remedial practice of ordering reimburse-
ment by Respondent to the employees involved for dues
and fees unlawfully exacted from them, with interest as
set forth, supra, as modified in Seafarers International
Union of North America, Great Lakes District, AFL-CIO,
138 NLRB 1142 (1962).
Finally, the General Counsel seeks a broad order re-
quiring Respondent to cease and desist from violating the
Act in any other manner. The violations found herein,
although serious, are not egregious within the meaning
of Hickmott Foods, Inc., 242 NLRB 1357 (1979). Gold
Kist, Inc., 245 NLRB No. 142 (1979); Skrl Die Casting,
Inc., 245 NLRB No. 134 (1979). A narrow order is there-
fore appropriate.
Upon the foregoing findings of fact, conclusions of
law and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER2 2
The Respondent, O.K. Machine & Tool Corp. and
Gyrotronics, Inc., Bronx, New York, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Photographing or making lists of employees as they
peacefully picket.
(b) Threatening striking employees that they are going
to be finished when the strike is over, in order to dis-
courage them from engaging in protected concerted and
union activities.
(c) Granting special bonuses in compensation to em-
ployees who refrain from lawful strike activity.
(d) Harassing and intimidating employees by following
them and keeping tighter control on their movements,
because of their having engaged in protected concerted
and union activities.
(e) Issuing written warnings to employees because
they engaged in protected concerted and union activities.
(f) Discouraging protected concerted activities or ac-
tivities on behalf of Local 815, International Production,
Service and Sales Employees Union, by denying employ-
ees overtime work or in any other manner discriminating
against employees in regard to hire or tenure of employ-
ment or any term or condition of employment.
(g) Discharging or threatening to dismiss employees,
thereby discriminating in regard to hire and tenure of
employment in order to discourage membership in Local
815, International Production, Service and Sales Em-
ployees Union, or encourage membership in Local
14756, United Steelworkers of America, AFL-CIO, or
any other labor organization.
(h) Recognizing the Steelworkers as the bargaining
representative of any of its male employees for the pur-
poses of dealing with Respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until said
labor organization shall have demonstrated its exclusive
22 In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes
majority representative status pursuant to a Board-con-
ducted election among the said male employees in a unit
found appropriate.
(i) Giving effect to the collective-bargaining agree-
ments effective as of May 25, 1976, and May 25, 1978,
between Respondent and Steelworkers or to any exten-
sion, renewal, modification, or supplement thereof inso-
far as it applies to its male employees; provided, howev-
er, that nothing herein shall require Respondent to vary
or abandon any wages, hours, or other substantive fea-
tures of its relations with its male employees which Re-
spondent has established in the performance of the con-
tracts, or to prejudice the assertion by employees of any
rights they may have thereunder.
(j) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Alberto Gonzalez, Hildo M. Melendez, Alton
Fahie, Jose Allen, William Robinson, and Luis Tirado
immediate reinstatement to their former positions or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without loss of seniority or other rights or privi-
leges, and make them whole for any loss of earnings they
may have suffered as a result of the discrimination prac-
ticed against them, in the manner set forth in the remedy
section of this Decision.
(b) Restore, to the extent it has not already done so,
the assignment of overtime work to Keith Zukaitis, Ra-
dames Garcia, Juan Garcia, Alberto Gonzalez, Jose
Allen, and Hildo M. Melendez, as the practice existed
prior to October 5, 1978, and make them and Edwin
Negron whole in the manner set forth in the remedy sec-
tion of this Decision, for any loss of overtime pay they
may have suffered as the result of Respondent's discrimi-
natory reduction of overtime opportunities.
(c) Pay 1 day's wages, with interest, from October 20,
1978, to each of the employees who engaged in the Oc-
tober 1978 strike against Respondent, who did not re-
ceive the bonus paid on October 20, 1978, to its nonstrik-
ing employees.
(d) Expunge from its records and from the employees'
personnel files the written warnings issued to Keith Zu-
kaitis on November 17, 1978, and Radames Garcia on
October 30, 1978, as a result of their protected concerted
and union activities and make whatever record changes
are necessary to negate the ffect of the issuance of such
warnings.
(e) Reimburse its male employees for any initiation
fees, dues, or other moneys paid or checked off pursuant
to the agreement applied to its male employees or to any
extension, renewal, modification, or supplement thereof,
or to any agreement superseding it, plus interest as set
forth in the remedy section of this Decision.
(f) Withdraw and withhold all recognition from Steel-
workers as the exclusive bargaining representative of its
male employees for the purpose of dealing with it con-
cerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment
unless and until said labor organization shall have dem-
O.K. MACHINE & TOOL CORP.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
onstrated its exclusive majority status pursuant to a
Board-conducted election in a unit found appropriate.
(g) Post at its Bronx, New York, place of business
copies of the attached notice marked "Appendix." 23
Copies of said notice, in both English and Spanish, on
forms provided by the Regional Director for Region 2,
after being duly signed by Respondent's authorized rep-
resentative, shall be posted by Respondent immediately
:' In the event that this Order is enforced by a Judgment ol a lUnilcd
States Court of Appeals, the words in the notice reading "lP'osied hy
Order of the National Labor Relations Board" shall read "Posted Pursu
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(h) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges unfair labor prac-
tices not found herein.