Accurate Die Casting Co.

982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Accurate Die Casting Company and Local 491, United Automobile Aerospace and Agricultural Implement Workers of America . Cases 3-CA- 12921, 3-CA-12998, 3-CA-13162, 3-CA- 13201, and 3-CA-13321 February 10, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 18, 1987, Administrative Law Judge Harold B. Lawrence issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-excep- tions. The National Labor Relations Board has delegat- ed 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 brief and has decided to affirm the judge's rulings, findings,' and conclusions, to modify the remedy,2 and to adopt r The Respondent has excepted to some of the judge 's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The judge found that replacement workers are presumed to support the Union in the same ratio as to those whom they replace; that they cannot be presumed not to support the Union; and the presumption ap- plies as a matter of law and the burden is on the Employer to rebut it, especially in the event of a strike, citing Pennco, Inc., 250 NLRB 716 (1980), enfd . 684 F.2d 340 (6th Cir. 1982), cert. denied 459 U.S. 994 (1982). However, subsequent to the issuance of the judge's decision, the Board , on July 27, 1987, issued its decision in Station KKHI, 284 NLRB 1339 (1989), in which it found no basis for presuming that the strike re- placements who have accepted employment and are therefore willing to cross a picket line in order to go to work favor union representation, and that, to the extent that Pennco relied on such a presumption, overruled that case. The Board declined to maintain or create any presumptions re- garding the union sentiments of strike replacements, but will require "some further evidence of union nonsupport." Under the principles set forth in Station KKHI, the Respondent was obligated to continue recog- nizing the Union because, as the judge found, and we affirm, the Re- spondent has presented no objective evidence that the Union's majority has vanished. Moreover, a clear majority of the unit employees since Oc- tober 30, 1985, have been former strikers , and there has been no evidence presented that they abandoned the Union. We find it unnecessary to pass on the judge's findings that the Re- spondent unlawfully demoted a supervisor to a unit job while unreinstat- ed strikers had not been recalled to work, recalled a striker replacement who had been on layoff at a time when unreinstated strikers had not yet been recalled, and laid off returned strikers while strike replacements with less seniority were retained. As the judge noted, in Case 3-CA- 12472-R, which involved the same parties and issues in common with this proceeding, the judge found that the strike involved is an unfair labor practice strike rather than an economic strike, and the Board has recently adopted the judge's findings. 292 NLRB 284 (1989). 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621 . Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 the recommended Order as modified3 and set forth in full below. ORDER The National Labor Relations Board orders that the Respondent, Accurate Die Casting Company, Fayetteville, New York, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to furnish to the Union, on request, the names and seniority dates of re- turned strikers. (b) Unilaterally implementing terms and condi- tions of employment at variance with contractual provisions and existing practice as of June 15, 1984, with respect to payment for employees' birthdays as paid holidays, taking vacations in time periods shorter than a week, making layoffs and recalls on basis of departmental and plant seniority and super- seniority, the two-tier wage structure, advance notice of layoff, contribution to employees' individ- ual retirement accounts, time of drawing of vaca- tion pay, the time allowed employees to vacate the plant at the end of the shifts, and playing radios in the plant. (c) Laying off employees because of their sup- port of the Union. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Furnish the Union, on request and within a reasonable time, the names and seniority dates of returned strikers. (b) Restore all terms and conditions of employ- ment to the status quo as it existed before the un- lawful unilateral changes were made, to the extent such changes were detrimental to the employees. (c) Make whole any employees who may have been detrimentally affected by the changes in terms and conditions of employment, with interest on any monetary losses the employees may have suffered, in the manner set forth in the remedy section of the decision. (d) Offer the unfair labor practice strikers who made unconditional applications to return to work immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their amendment to 26 U.S.C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). a We do not adopt the judge's inclusion of a visitatorial clause in his recommended Order . In the circumstances of this case , we find the provi- sion unnecessary . Cherokee Marine Terminal, 287 NLRB 1080 (1988). 292 NLRB No. 106 ACCURATE DIE CASTING CO seniority or any other rights or privileges previous ly enjoyed, dismissing, if necessary, persons hired after June 15, 1984, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the deci sion (e) Offer Gerald Honors immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the deci- sion (f) Remove from its files any reference to the un lawful discharge and notify the employee in writ- ing that this has been done and that the discharge will not be used against him in any way (g) Preserve and, on request, make available to the Board or its agents for examination and copy ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (h) Post at its facility at Fayetteville, New York, copies of the attached notice marked "Appendix "4 Copies of the notice, on forms provided by the Re gional Director for Region 3, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 4 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 983 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT fail and refuse to furnish to the Union, on request, the names and seniority dates of reinstated strikers WE WILL NOT unilaterally implement terms and conditions of employment at variance with estab- lished practice in our plant as of June 15, 1984, or with those contained in our contract with Local 491, United Automobile, Aerospace and Agricul tural Implement Workers of America, which ex- pired on June 15, 1984 WE WILL NOT lay you off because of your sup port for the Union WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL restore all terms and conditions of em- ployment to the status quo as it existed before the unlawful unilateral changes were made, to the extent such changes were detrimental to the em ployees WE WILL make whole any employees who may have been detrimentally affected by the changes in terms and conditions of employment, with interest on any monetary losses the employees may have suffered WE WILL offer Gerald Honors immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his layoff, less any net interim earnings, plus interest WE WILL remove from our files any reference to the unlawful layoff of the above-named employee 984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and notify him in writing that this has been done and that the reasons for the failure to recall him will not be used against him in any way WE WILL offer the unfair labor practice strikers, who made unconditional applications to return to work immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub stantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed dismissing, if necessary, persons hired after June 15, 1984, and WE WILL make them whole for any loss of earnings and other benefits resulting from the discrimination practiced against them, less any net interim earnings, plus interest WE WILL furnish the Union, on request and within a reasonable time, the names and seniority dates of returned strikers ACCURATE DIE CASTING COMPANY Thomas J Sheridan and Robert A Ellison Esqs, for the General Counsel Carl E Worboys Esq (Bogart Associates P C), of Syra cuse, New York, for the Respondent Thomas J Giblin and Stephen H Gelb Esqs of Cran ford, New Jersey, for the Charging Party DECISION STATEMENT OF THE CASE HAROLD B LAWRENCE Administrative Law Judge These consolidated cases were heard by me in Syracuse New York, on 19, 20, and 21 August 1986 having been consolidated for purposes of hearing with the remand of Case 3-CA-12472 The further amended complaint in the above actions alleges that Accurate Die Casting Company, debtor in possession and alter ego of Accurate Die Casting Company the Respondent, committed unfair labor practices in addition to and subsequent to those al leged in the earlier case Inasmuch as the decision in volved some issues in common with the remanded case the decision was deferred until after issuance of the deci sion in that case, with leave to counsel to prepare briefs separate from the briefs submitted on the remanded case The unlawful conduct alleged in the instant cases con sists of unilateral changes made by Respondent from the expired collective bargaining agreement and past practice or from Respondent's final offer in negotiations failure to furnish information requested by Local 491, United Automobile, Aerospace and Agricultural Implement Workers of America (the Union), discrimination against the Union s bargaining committee chairman, Gerald Honors, because of his union activities in general and be cause he testified against Respondent in Board proceed ings and discrimination against former sinkers in layoffs and recalls respondent is thus alleged to have violated Section 8(a)(1), (3), (4) and (5) of the National Labor Relations Act (the Act) In its answers and in the postheanng brief submitted on its behalf, Respondent admits commission of most of the actions attributed to it but contends that they were not in violation of the Act Respondent readily concedes that beginning in August 1985 it ignored seniority when it hired rehired, and laid off workers and that it made changes in the work rules and terms of compensation without discussion with the Union and did so on the basis of its precarious financial condition The Respond ent alleged three affirmative defenses (a) that the prior proceedings still pending were on the same grounds and for similar relief (b) that Gerald Honors was laid off due to the fact that there was no work for which he was qualified, and (c) that the employer filed a chapter XI proceeding, as a result of which the instant proceeding is automatically stayed and may not proceed without an order from the Bankruptcy Court of the Northern Dis tnct of Ohio In addition, the Respondent has made a number of other arguments of an affirmative nature These affirmative defenses and contentions are taken up at the appropriate points below The parties were afforded full opportunity to be heard, to call, examine, and cross examine witnesses , and to in troduce relevant evidence Postheanng briefs have been filed on behalf of the General Counsel, the Charging Party, and the Respondent On the entire record including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the respective parties I make the follow mg FINDINGS OF FACT I JURISDICTION Notwithstanding denials contained in the answers filed on its behalf in these consolidated proceedings, the Re spondent had already admitted the allegations pertaining to jurisdiction in Case 3-CA-12472 which it contended dealt with the matters at issue in this case and therefore made this case unnecessary There is no evidence that there has occurred any change of circumstances On the contrary, throughout these proceedings it was apparent that both Respondent and the Union continued to have the jurisdictional characteristics that had been attributed to them and had earlier been conceded The Respondent continues to have offices plants, and facilities in several States and continues to engage in interstate commerce The Union's status as a labor organization was estab lashed by the testimony of Anthony Spoto to the effect that Local 491 is an affiliate of the International Union, United Automobile Aerospace and Agricultural Imple ment Workers of America (the Union) that it is the cer tified representative of all the employees of Accurate Die Casting for purpose of negotiation of terms of work ing conditions, including wages hours, and other terms and conditions of employment, that the membership of Local 491 consists of the Respondents Fayetteville em ployees that the local deals with Respondent concerning grievances and labor disputes, and that the local files re ports as required by law w.th various governmental agencies ACCURATE DIE CASTING CO 985 Accordingly, I find, as I did in the earlier proceedings, that the Respondent' is and has been at all material times an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act I also find that the Union has been at all material times a labor organiza tion within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Background2 1 Earlier proceedings and findings The decisions in Case 3-CA-12472 after the initial hearing, issued on 30 May 1985, and after the hearing on remand, issued on 5 January 1987, dealt with events during and immediately after unsuccessful negotiations to replace a collective bargaining agreement due to expire on 15 June 1984 During the negotiations that lasted from 3 May to 15 June 1984 when the employees went out on strike, the union negotiator made several requests for an inspection of the Company s books, which were refused Immediately prior to the expiration of the contract, the Respondent made a final offer which the Union rejected After the contract expired, Respondent implemented its wage benefit proposal, which materially differed from that contained in the expired collective bargaining agree ment During the strike, replacement workers were hired In mid December 1984, the strikers made an un conditional offer to return to work, but Respondent failed to recall a number of striking employees The complaint in Case 3-CA-12472 was issued on 8 December 1984 and amended on 13 March 1985 It al leged violations of Section 8(a)(1), (3), and (5) of the Act in that Respondent had refused to furnish requested in formation to the Union, consisting of financial records which would indicate the financial condition of the Com pany had failed to recall striking employees who had unconditionally offered to return to work, and had im plemented the terms of its final offer in negotiations de spite the fact that it had not yet bargained to an impasse On 30 May 1985, I issued a decision dismissing the com plaint, finding, essentially, that company negotiators had not placed the Company s financial condition in issue and were therefore not obligated to comply with the Union's request for data concerning the Company's financial con dition On 15 October 1985 the Respondent filed a petition in chapter XI Disclosures resulting from the filing of the petition raised questions whether newly revealed infor mation required reconsideration of the evidence and modification of my findmgs Accordingly, the matter was remanded to me for all purposes, and another hear ing was held The consolidated proceedings Cases 3- i Respondent s counsel conceded during the hearing that Respondent debtor in possession is the same corporation under the supervision of the Northern District of Ohio 2 The matters narrated in this decision without evidentiary comment are those facts found by me on the basis of admissions in the answers data contained in the exhibits stipulations between or concessions by counsel undisputed or uncontradicted testimony and in instances where conflicts in the testimony did not warrant discussion the testimony which I have credited CA-12921, 3-CA-12998, 3-CA-13162 3-CA-13201, and 3-CA-13321, were consolidated with Case 3-CA-12472 for purposes of conducting a single hearing , but not oth erwise consolidated with it The evidence adduced at the hearing on remand estab lished that during the period of negotiations and at times before and after, Respondents officers and negotiators concealed the true financial condition of the Company from the Union , that throughout the period of negotia tions and for several years before that the Company had been in grave financial difficulty , that, though statements made by the Respondents negotiators resulted in making the Company s financial condition an issue in the negoti ations, they refused to permit the Union to examine the Company s books to verify what the Union claimed to be Company s financial distress, denying that the Compa ny was pleading poverty , that the refusal to permit the Union access to the financial records was unjustifiable that the information withheld was needed to enable the Union and the employees bargaining committee to for mulate proper demands and bargaining positions and to make a decision whether to strike that the deprivation of the information materially affected the employees deci sion to strike and that they did so under a misapprehen sion respecting the Company s financial condition The employees had voted to strike on the basis of the status of the negotiations as of 14 June 1984, regarding eco nomic matters, but the true import of the negotiations at that point was concealed from them by reason of Re spondent s refusal to bargain in good faith as required by Section 8(d) of the Act As a result, I considered the strike to be an unfair labor practice strike rather than an economic strike On 5 January 1987, I issued a decision setting forth findings and conclusions as follows 1 Respondent is an employer engaged in com merce within the meaning of Secion 2(6) and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 The Union is the exclusive collective bargain ing representative of an appropriate collective bar gaining unit consisting of All production and maintenance employees at the Fayetteville New York facility excluding labora tory employees draftsmen, office and clerical employees professional employees guards, watchmen and supervisors as defined in the Act 4 Respondent violated Sections 8(a)(1) and (5) and 8(d) of the Act by (a) failing and refusing to furnish to the Union, on request, financial records necessary for and rele vant to the Union s performance of its function as the exclusive bargaining representative of the Unit (b) unilaterally substituting the terms and condi tions of employment contained in its contract pro posal to the Union in place of terms and conditions of employment contained in a contract which ex pired the same date without a valid impasse having been reached in its contract negotiations with the 986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union and without affording the Union , as a result, an opportunity to negotiate and bargain as the ex elusive representative of Respondents employees with respect to same 5 Respondent violated Section 8(a)(1) and (3) of the Act by (a) failing to recall striking employees within 5 days from the date they unconditionally offered to return to work, (b) by threatening to replace permanently em ployees who went out on strike on 15 June 1984, after rejecting Respondents final contract offer 6 These unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union's continued status as the employees bargaining representative The Respondent denied the allegations of the com plaint that the appropriate unit consisted of all produc tion and maintenance employees at the Fayetteville, New York facility, that the Union had been the representative of the unit since 1955, and that the Union was the collec tive bargaining representative for the unit These conten tions are disposed of by my findings in Case 3-CA- 12472-R The law is very clear regarding the obligation of an employer to continue recognition of a union that has en joyed uncontroverted majority status There is a rebutta ble presumption of majority status, if an employer elects to withdraw recognition, it must do so on the basis of a bona fide belief that the union no longer has the support of a majority of the employees, based on objective con siderations See NLRB v Windham, 577 F 2d 805, 811 (2d Cir 1978) The burden of establishing that it had a good faith doubt based on objective evidence is a heavy one Replacement workers are presumed to support the union in the same ratio as those whom they replace they cannot be presumed not to support the union The pre sumption applies as a matter of law and the burden is on the employer to rebut it, especially in the event of a strike Pennco Inc, 250 NLRB 716 (1980) enfd 684 F 2d 340 (6th Cir 1982), cert denied 459 U S 994 (1982) Respondent has presented no objective evidence that the Union s majority has vanished, a clear majority of the unit employees since 30 October 1985 have been former strikers, and there has been no evidence present ed that they have abandoned the Union Respondent has never expressly withdrawn recognition of the Union The evidence adduced by Respondent evinces a cer tarn degree of disarray in the affairs of Local 491 At the same time, it clearly continued as a functioning organza tion Spoto testified on cross examination that from and after the commencement of the strike the operations of the local were inefficent, tardy, ad hoc and somewhat it regular Tax reporting was late for 1984, after a financial secretary quit, the president did not appoint an interim replacement for a year and half, several officers of the local resigned and went back to work, the names of re placement officers were on occasion omitted from forms filed with the Government Spoto attributed these irregu lanties to the difficulty of operating a local during a dif ficult strike in which persons were afraid to come for ward to serve as union officers and conceded that ad ministration of the local was a shambles Nevertheless, even Respondent's counsel conceded, in putting a ques tion to Spoto, that [w]itnesses have testified in this pro ceeding here that they have continued to attend union meetings right through up to the current time He elicit ed testimony from Spoto that the meetings were presided over by the local s administrative officer, Seeber, and its bargaining chairman, Honors Honors testified that he maintained contact with Spoto on matters affecting the employees as when payroll checks were dishonored and on the occasion of the discharge of an employee Dale Warner Spoto testified that he was kept informed of Re spondent s actions in making unilateral changes by union members working inside the shop There is no question that once strikers were recalled, they constituted an overwhelming majority of the Respondents work force in the unit, and there is no evidence of abandonment of the Union or cancellation of their membership The evidence thus establishes that active interest in the Union continues among the rank and file membership, that meetings are continuing, and that basic administra tion of the local and oversight of the members working conditions has never ceased On the evidence in the record, a good case can be made for the proposition that Respondent, by its actions, has continued to recognize the Union, regardless of what its counsel now contend in this proceeding Certainly, there is no evidence that Respondent ever expressly an nounced its withdrawal of recognition of the Union to the Union or anyone else Lee's testimony that no union representatives approached management with employees problems is simply untrue Granted that no one in the shop did so, there is no question that Spoto and Lee were in contact with each other Lee tried to set up a meeting with Spoto when he arrived at Fayetteville but canceled it on the advice of Respondents attorneys Sig nificantly, he neither stated to Spoto nor testified at the hearing that the reason was that the Union was not rec ognized as the employees representative He and Spoto had telephone conversations regarding the health insur ance problems of employees and the particular problems of several employees They discussed whether the medi cal bills of John Sullivan s wife were covered by the company plan during the strike or whether the Union had to cover them Spoto attempted to discuss the unilat eral changes being made and protested Hrynio's transfer from a supervisory position to the unit after the com mencement of the strike, and made a request for informa tion which was refused However at no time was it ever asserted by Respondent that the Union was not the rep resentative of the employees Spoto, in the case of the changes, was told that the Company could do whatever it wanted In the case of the information request Lee tes tified that the reason for noncompliance was that Re spondent s personnel at that time were engaged in more pressing matters, he did not claim that the Union lacked status to make the request See Gentzler Tool & Die Corp, 275 NLRB 881 (1985) ACCURATE DIE CASTING CO 987 Finally, I note that my earlier findings must also be of fective in this area I have found that the strike was an unfair labor practice strike Even if a loss majority oc curred as a result of that strike, therefore, Respondent would be unable to avail itself of the defense, because it would have contributed, by its unlawful actions, to the loss of the majority Chicago Castings Co, 256 NLRB 688 fn 2 (1981) 3 Effect of filing petition under chapter XI of the Bankruptcy Act The Respondent has acted under a complete misappre hension of the consequences of filing the petition under chapter XI of the Bankruptcy Act in relation to its obli gations under the National Labor Relations Act In its answer, the Respondent has alleged, as a third affirma tive defense, that these proceedings are automatically stayed by reason of such filing , and may not proceed without an order of the bankruptcy court The automatic stay provisions of chapter XI of the Bankruptcy Act are not applicable to the instant pro ceedings Goldstein Co, 274 NLRB 682 (1985), Phoenix Co, 274 NLRB 995 (1985) Accordingly, the third affirmative defense must be dis missed The Respondent also misconceives the effect general ly, for it contends that it is , by reason of filing in chapter XI, exonerated from its obligation to discuss changes in work rules and compensation with the Union This con tention is based on Respondent's reading of the decision in Bildisco & Bildisco v NLRB, 465 U S 513 (1984), that ignores several extremely important observations con tained that rejection of collective bargaining agreements by the bankruptcy court should be governed by a stricter standard than that which governs the rejections of other executory contracts, that it must be based on a reasoned finding why rejection should be permitted , and that the bankruptcy court, being a court of equity must balance the equities and consider , among other things, the impact of rejection of the collective bargaining agreement on the employees Thus, in permitting unilateral rejection prior to formal rejection by the bankruptcy court the Supreme Court implicitly presupposed that such action by the employer would be based on equitable consider ations that would support a subsequent ratification of that act by the bankruptcy court In the present case however , that might not have been possible, for I have found that the Respondent has been guilty of lawless conduct that would have had to be con sidered in the bankruptcy court In any event , the result is controlled by the amendement of section 1113 of the Bankruptcy Act, which now provides a different proce dure for resolution of situations involving rejection of collective bargaining agreements Section 1113 provides that a debtor in possession "may assume or reject a collective bargaining agreement only in accordance with the provisions of this section " It is then provided that the debtor in possession shall make application for such rejection only after proposing neces sary modifications to the authorized representative of the employees, providing it with the relevant information needed to evaluate the proposal If a proposal that meets the statutory requirements is rejected by the authorized representative without a good cause," a hearing will be scheduled on such application Respondent never proposed changes to the Union and never filed an application for rejection of the collective bargaining agreement with the bankruptcy court, and in its postheanng brief asserts that section 1113 is inapplica ble to this case According to Respondent, [a]n exami nation of that section indicates that it speaks to only col lective bargaining agreements in effect during the bank ruptcy proceeding At no juncture does the section apply to the case of a trustee or debtor in possession op erating without a collective bargaining agreement' The most cursory examination of the statute suffices to disclose the untenability of that argument The statute clearly recognizes the basic propositions of labor law ap plicable in this case, namely, that following the expira tion of a collective bargaining agreement, terms and con ditions of the agreement remain in force during the pend ency of negotiations, and an employer may not imple ment the terms of his offer or other changes, unless and until negotiations have reached an impasse Inasmuch as Respondent violated Section 8(d) of the Act by failing to negotiate with the Union in good faith, there could be no impasse in its negotiations with the Union It is unques tionable, therefore , that aside from considerations arising from the filing of the petition in chapter XI, Respondent would have been obligated to continue giving effect to the terms and conditions of employment as set forth in the expired collective bargaining agreement As I have noted, this might even have been true under Bildisco Under section 1113, as amended , it certainly is true The obligations which survive the expiration of a col lective bargaining agreement are among the most impor tant that are contained in the agreement, relating to terms and conditions of employment such as wages, hours, fringe benefits, and other matters Labor peace is preserved by the maintenance of established practices during the interim period, even if they are not explicily covered in the expired agreement The burdens that sur vive, therefore, cannot be ignored, and section 1113 does not ignore them Subdivisions (e)- and (f) of the section make explicit provision for the situation that existed in the present case (e) If during a period when the collective bar gaining agreement continues in effect, and if essen tial to the continuation of the debtor s business, or in order to avoid irreparable damage to the estate the court, after notice and a hearing, may authorize the trustee to implement interim changes in the terms, conditions, wages, benefits, or work rules provided by the collective bargaining agreement (f) No provision of this title shall be construed to permit a trustee to unilaterally terminate or alter any provisions of a collective bargaining agreement prior to compliance with the provisions of this sec tion There is no reference in subdivision (e) or in any part of section 1113 to executory contracts Reference is 988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD made to applications for rejection of a collective bar gaining agreement and to `a penod' when it contra ues in effect There is no reference to periods preceding the expiration date of an agreement nor to any period during the term of an agreement The sole reference is to the period when it is effective, and that is a matter which is determined by the above mentioned principles of labor law The penod when a collective bargaining agreement continues in effect" includes a period when its replace ment is being negotiated and in which no impasse has been reached Manifestly, Respondent, in order to make the changes that it sought in a lawful manner, was required by the provisions of section 1113 to propose them to the Union, as the authorized representative of the employees in the unit, and, failing to obtain agreement by the Union to such changes, to make application to the bankruptcy court By making the changes unilaterally, Respondent vio lated the Bankruptcy Act as well as the National Labor Relations Act B Alleged Violation of Section 8(a)(1) Implementation of Contract Proposals It is alleged that on or about 15 June 1984, Respond ent substituted the terms and conditions of employment contained in the expired collective bargaining agreement, without a valid impasse having been reached in the con tract negotiations and without affording the Union an opportunity to negotiate The same allegation was made in the complaint in Case 3-CA-12472 Respondent's first affirmative defense to the further amended complaint is as follows In regard to the allegations of IX, X and XI, there are prior proceedings pending on the same grounds and for similar relief The Respondent's contention is obviously correct inso far as the above mentioned allegation is concerned but it is not at all clear that it applies to any of the allegations of numerous unilateral acts on the part of Respondent that are alleged additionally in the further amended com plaint and it is clear that it cannot apply to some of those allegations These are actions that Respondent is alleged to have taken on 12 and 31 August 15 October, and 22 November 1985 and on 1, 14 and 16 April and 17 June 1986 Violations of the reinstatement rights of strikers by ignoring seniority and supersenionty rights probably overlap the allegation of implementation of the final con tract offer they are alleged to have occurred in Septem ber 1985 and on 8 October and 22 November 1985, as well as later in the case of Gerald Honors I see little point to creating confusion by trying to separate out the overlapping charges in cases where there may be some doubt This is definitely a situation in which any doubts should be resolved against the Respondent as a result of its other well documented violations of the Act With respect to the allegation of implementation of the final contract offer, after the consolidated hearing I issued the decision in the case on remand, Case 3-CA- 12472 in which that allegation had first been made I found that the Respondent had, in fact, violated Section 8(a)(1) and (5) and Section 8(d) of the Act on or about 15 June 1985, by substituting its contract proposal terms for terms of the expired collective bargaining agreement I set forth the text of my finding with respect to that al legation in section A, above It obviously resolves the same point that is at issue here Counsel for the Union concede in their posthearing brief that the issue is moot insofar as implementation of the final offer is con cerned and that the violations may be corrected by the remedy ordered in the decision on remand Counsel ex presses concern, however, that there may be a failure of remedy in that proceeding in the event of reversal of my decision or some lapse in enforcement Counsel seems to be suggesting that in the event of a reversal, it would be nice to have another order granting the same relief con tinuing in effect notwithstanding the ruling by the Board I do not think we should do that An order would be based on precisely the same record that underlies the remand decision in Case 3-CA-12472- R Because both orders stand on the same evidentiary foundation, the Board s determination of the validity and propriety of the order in that case is determinative of the issue in these proceedings as well Accordingly, so much of the first affirmative defense as applies to the allegation that Respondent implemented its final offer is sustained, it is in all other respects denied C Alleged Violations of Section 8(a)(1) and (5) 1 Unilateral changes made by Respondent without affording the Union notices or opportunity to bargain The further amended complaint sets forth a number of instances in which Respondent unilaterally made changes in working conditions in the plant at Fayetteville con sulting neither the union personnel in the plant such as Gerald Honors nor Anthony Spoto, the International representative who had acted as chief negotiator With only two exceptions I find all such actions to have been taken in violation of Section 8(a)(1) and (5) of the Act The Respondent in its answer, admitted that on 14 January 1986 it unilaterally discontinued treating em ployees birthdays as paid holidays and discontinued al lowing them to take vacation time in units of less than 1 week, both of which steps reflected changes from estab lished practice Saloon Inc 247 NLRB 1105 1108 (1980) enfd mem 647 F 2d 171 (9th Cir 1981) Robbins Door & Sash Co 260 NLRB 659, 665 (1982) The Respondent denied the allegations regarding the remaining unilateral changes, but they were proven by testimony from Respondent's own personnel officer, James Lee by uncontroverted testimony by Honors and by copies of the notices that Respondent in some in stances posted to announce the changes Lee testified that departmental seniority was aban doned as a basis for layoffs and recalls toward the end of September 1985, which Honors confirmed by his testi mony that the change was made after his own recall on ACCURATE DIE CASTING CO 989 12 August 1985 Lee testified that Frank Ryan, the gen eral manager, decided (with Lee's concurrence) to deter mine who would be laid off and who would be recalled on the basis of the particular employees performance, the idea being to obtain and keep the best workers The criteria were to be employees versatility productivity, and attendance Lee readily conceded that as a result of the new policy, some strikers were recalled ahead of other strikers with greater seniority, and seniority ceased to be a factor in situations involving bumping " Honors testified to the effects of the change of policy in several specific applications He was laid off on 1 April 1986, while 40 employees with less seniority in cluding strike replacements, were retained A replace ment named Tracy Crow, who had been hired as an in spector in the fall of 1984, was laid off, she was subse quently recalled ahead of all the unreinstated strikers, de spite their seniority Frank Hrynio, a newly appointed supervisor, was returned to the unit to operate a die cast ing machine, though there were unreinstated strikers with greater seniority in the bargaining unit than he had Under a modification of the collective bargaining agreement, Respondent had accorded supersenionty to officers of the local, members of the shop committee, and the shop chairman Supersenionty was not, of course, observed when Honors was laid off Cone Mills Corp, 156 NLRB 370 (1965) Respondent has contended that Honors was not enti tled to supersenionty because he was not active on behalf of the Union The evidence, however, is that he continued to work for the Union inside the plant, though Lee testified that Honors never contacted him in any union capacity The reason for that is not hard to find Respondent s campaign of intimidation had succeeded Spoto testified that employees were afraid to take office in the Union or to present grievances Nevertheless, Honors continued to function as shop chairman to the extent indicated elsewhere in this decision keeping Spoto informed and as he testified talking to people who approached him to discuss union concerns Another proven unilateral action that violated the Act, alleged in an amendment to the complaint made at the hearing, was that around 8 August 1986, Respondent eliminated its two tier wage structure, effective 11 August 1986 All employees at the higher tier were brought down to the lower tier The notice announcing it is in evidence Lee conceded that the elimination of the two tier system affected only the reinstated strikers Lee testified to a number of instances in which Re spondent unilaterally acted to change established prac tices some of which were of longstanding On 22 No vember 1985, when six employees were laid off they were not given the customary 48 hours advance notice When Honors was laid off on 1 April 1986 he received notice of less than 2 hours On 16 April 1986, Respond ent took four actions it discontinued contributions of 25 cents an hour that it had been making to individual re tirement accounts set up for employees, it discontinued permitting employees with 5 years of continuous service to draw vacation pay on the first of May rather than on their anniversary dates it promulgated a rule requiring workers to leave the plant within 15 minutes of the end of their shift, and it banned radios in the plant , threaten ing to confiscate and donate to chanty any radios found there Harvard Folding Box Co, 273 NLRB 841, 845 (1984) (vacation pay), Hedison Mfg Co, 249 NLRB 791 (1980) (radios) The threat to confiscate the radios was a violation in itself Dunham Bush Inc 264 NLRB 1347 (1982) (noting that [t]he Board has not limited its define tion of a modification of a contract only to changes of basic terms or conditions of employment 264 NLRB at 1349 ) All the foregoing changes constituted violations of Section 8(a)(1) and (5) of the Act Two other instances alleged in the complaint do not The first is the alleged failure to pay a wage increase that was supposed to go into effect on 15 June 1986, under the terms of Respondents last offer during its ne gotiations with the Union The allegation that Respond ent refused to pay it is denied in Respondent 's answer, but Lee testified that it did not go into effect and that he notified Morns Brown, a union committeeman, that Re spondent was not going to pay it (Another instance, un doubtedly, of Respondents actual recognition of the Union's status as the unit's bargaining representative ) This situation is distinguishable from that of the individ ual retirement accounts, in which case an item contained in the final offer was implemented and then canceled The June pay raise was an item of the final offer that was never implemented at all Notwithstanding the phraseology employed by the General Counsel there was no single, integrated, one piece implemented final offer " Respondent made a final offer After the collective bargaining agreement expired it made a number of unilateral changes, some of which had been part of the final offer and some of which had not been The changes must be considered individually By alleging a violation in this instance the General Counsel in effect asserts that Respondent would be in violation of the Act no matter what it did payment would have violated the Act as an implementation of an offer without impasse having been reached and failure to pay, according to the complaint would also violate the Act I cannot agree that the fact that Respondent did not take an unlawful action pursuant to its final offer under these circumstances places Respondent in violation of Section 8(a)(1) and (5) of the Act The other situation involves a failure of proof Re spondent was alleged to have terminated health incur ance coverage for employees in the unit The testimony establishes that the Union received complaints from em ployees that their claims were not being paid by the in surance carrier There is no testimony that any claimant was advised that the plan had been discontinued howev er Spoto testified that the refusal of the insurance coin pany to pay the claims was based on asserted nonpay ment of premium by Respondent but the reason for such nonpayment was not given Nonpayment of premium is not necessarily due to a decision to terminate a health in surance plan, and even Spoto was aware of the distinc tion when he testified I was besieged with phone calls from the retirees Jeff Honors and a number of other mem 990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bers that had no health insurance, or at least their medical bills were being denied for nonpay ment of premium When he called Lee, he was advised, not that coverage had been terminated, but that there was some mixup, or some misunderstanding with, at that time it was Equitable Life and then subsequently they changed to Massachusetts Gener al Lee and James Richter, Respondents vice president testified that processing of claims was interrupted by a controversy between Respondent and one or both of the insurance companies involved Lee testified that the plan involved was a self insured plan administered by Equita ble Life Assurance Society of the United States, with funding provided by Respondent Equitable ceased to ad minister the plan though funds were on deposit in Chem ical Bank Respondent contended that Equitable s action was improper and litigation resulted Respondent in the meantime arranged for what Lee termed as coverage" by Massachusetts Mutual, according to Lee, `they dupli cated the plan " The General Counsel apparently be lieved that a letter sent to retirees showed a cessation of contributions by the Respondent, but it is apparent from the letter itself that reference is made to the retirees on contributions for supplemental medicare payments Lee's testimony indicated a controversy between Re spondent and Equitable pertaining both to administrative fees and the maintenance of a fund for payment of claims Lee pointed out that processing was resumed and that at the time of the hearing only three extremely small claims still awaited payment He testified that resumption of payment of claims was due, at least in part, to a per sonal financial contribution made by George Slyman, Respondents board chairman The evidence that Respondent defaulted in making payments to a health fund that it was required to make is not really clear and there is no evidence that would sug gest that the issue between the Respondent and the insur ance companies administering the plan was a feigned issue, or one instigated by Respondent or anything other than a legitimate dispute The merits of that controversy are, of course beyond the purview of these proceedings There is not even evidence that Respondent took steps to terminate the plan the evidence is that processing of claims was resumed, after insurance companies were changed On the basis of the evidence in the record I find that no violation of the Act by reason of Respondent's failure to pay premiums has been established by a preponder ance of the evidence 2 Refusal to furnish information On 13 September 1985, Spoto addressed a letter to Lee as follows The following information is hereby requested concerning the names and seniority dates of all the strikers who have been recalled to work In addi tion, I would like to know what insurance is pres ently covering hospital and medical for the retirees Your cooperation would be most appreciated It is alleged that Respondent refused to furnish the in formation, that was necessary and relevant to the Union s performance of its function as the bargaining agent for the unit Spoto testified that he never received a response Lee testified that he told Spoto in a telephone conver sation which carrier was involved and that they had some discussion of the matter Lee also testified that he did not furnish the information concerning the names and seniority dates of the recalled strikers, but that the reason for the failure to do so was the pressure of other matters, such as the retiree insurance the argument be tween Respondent and Equitable Life over billing and other problems going on day to day As he put it, It was a nonurgent thing, so we left it Subsequently, when he found time to think about it, he did not furnish the information because he could not understand why the Union needed information about its own members By then the chapter IX petition had been filed It is well settled that a union is entitled to discovery type disclosure, and a union s request for information re specting unit employees is presumptively relevant to the union s performance of its duties as the collective bar gaining representative of the unit NLRB v Acme Indus trial Co, 385 U S 432 (1967) The presumption is rebut table However, Respondent has offered no evidence whatsoever to rebut that presumption The pertinency of the information requested is obvious because Respond ent s blatant violations of the seniority rules in making layoffs and recalls of both strikers and nonstrikers Ac cordingly, the failure of Respondent to furnish the names and seniority dates of returned strikers violated Section 8(a)(1) and (5) of the Act The request regarding the identity of the insurance carrier covering the hospital and medical expenses of the retirees provides the reverse situation Retirees are not employees within the meaning of the Act Allied Chemi cal Workers Local I v Pittsburgh Plate Glass Co 404 U S 157 (1971) Nevertheless, a finding that the Union had a need for requested data concerning retirees benefits in order to bargain more intelligently for the active em ployees will sustain a finding that refusal to furnish such data violates Section 8(a)(5) of the Act Union Carbide Corp 197 NLRB 717 (1972), Connecticut Light & Power Co, 220 NLRB 967 (1975), affd 338 F 2d 308 (2d Cir 1976) Nevertheless, a burden, albeit a light one, rests on the Union seeking information respecting retirees, who are not persons in the bargaining unit, to establish that the information sought is relevant and necessary for pur poses of bargaining for employees in the bargaining unit Connecticut Light & Power Co, supra citing Union Car bide Corp supra In the present case however the Union has made absolutely no showing of the purpose for which the information was sought or the issue to which it is relevant Spoto s testimony which the information was sought or the issue to which it is relevant Spoto s testimony that he was receiving many complaints from retirees suggests that the purposes of his request for in ACCURATE DIE CASTING CO 991 formation was to assist the retirees personally rather than to enable him to perform duties related to his obligations to the members of the bargaining unit The fact that the Union knew that some active employees were not re ceiving health insurance payments does not alter the pos ture of the case, information was not sought respecting them Consequently, even if Respondent made no response to the request for information respecting the retirees, I would not find any liability In any event, I credit Spoto s testimony that he received no response only to the extent that he undoubtedly received no written re sponse to his letter He did not controvert Lee's testimo ny that they dicussed the matter on the telephone on a conversation during which Lee gave him the information he had requested Accordingly, I find no violation of Section 8(a)(1) and (5) of the Act in this regard D Alleged Violations of Section 8(a)(1) (3) and (4) 1 Layoff of Gerald Honors because of his support of the Union It is alleged, and admitted, that Respondent laid off Gerald Honors on 1 April 1986, and has refused to rein state him since It is further alleged, but denied, that the reason for Rospendent s action was Honors support of the Union and engagement in concerted protected activi ties, and his testimony in support of unfair labor practice charges in Cases 3-CA-12921, 3-CA-12998, and 3-CA- 13162 Consequently Respondent is alleged to have vio lated Section 8(a)(1), (3), and (4) of the Act In reviewing a discharge allegedly in violation of the Act attention is given to circumstantial factors such as the timing the employers knowledge that the employee was engaged in union activities , the existence of an im mediate background of other coercive unfair labor prac tices the inadequacy of the reasons asserted by the em ployer for discharging the employee, and the record as a whole See Coty Messenger Service, 272 NLRB 268 fn 7 (1984), Baker Trucking Co, 241 NLRB 121 (1979), enfd 626 F 2d 866 (9th Cir 1980) Honors worked for Accurate Die Casting from 1948 to 1958 and from 1960 to the date of his layoff He spent the entire time in the castings department as a die casting machine operator, section leader automatic die casting machine operator, and setup man He has all the occupa tional classifications in the department with seniority dating from 1961 He was the highest ranking union offi cial in the plant The evidence establishes the following chronology a He was one of the strikers who offered to return to work in December 1984 b He testified at the hearings in Case 3-CA-12472, which began 21 March 1985 and continued on 1 2 and 3 April 1985 c Honors was recalled 12 August 1985 d From time of recall unit unit 1 April 1986, Honors openly transacted union business as required reporting to Spoto instances of disregard of seniority provisions of the collective bargaining agreement, dishonor of pay checks and failure of the health insurance carrier to pay claims of retirees and currently employed workers He and Spoto communicated with each other twice a week by telephone through the company switchboard, at which Spoto sometimes left messages for Honors The last such message was left with the switchboard on 26 March 1986 e Unfavorable newspaper articles appeared in the local press from time to time throughout the summer and fall of 1985 At the hearing, counsel for the General Counsel explained the allegation against Respondent as charging that it took certain unlawful actions, only against Honors, on the basis of managements belief that the unfavorable publicity was being instigated by Honors f On 21 March 1986, Slyman visited the plant He saw Honors and waved at him The parties stipulated to admission into the record sub ject to my determination in the course of deciding this case of the weight to be accorded to it , of a portion of the transcript in Steeler v Accurate Die Casting Co, a proceding pursuant to Section 100) of that (US D C No Dist N Y , case 86-CV-746) and a copy of the order of the United States district judge The testimony is by Louie Albanese, who testified that he had a conver sation with Bernie Dapolito Q Okay Would you tell us gust what happened, what the conversation was to the best was to the best of your recollection A I said to Mr Da Polito, I said, `Too bad that George saw Jeff that day or he would probably still be working and Bernie said-well Mr Da Polito said that every phone call that comes in to the tele phone office has to be recorded and Mr Ryan saw the list of calls that Jeff was getting and at that time it was when we were having all the publicity in the papers in Syracuse and I surmised that he meant that Mr Ryan [vice president of Accurate Die Casting Company] let him go The transcript was not available at the time of the hearing, and now that I have had an opportunity to con sider it I reject it as the surmise of a witness based on no objective criteria of fact and insofar as Dapolito s re marks are concerned , as patently hearsay The order of the district judge enjoining Respondent from engaging in violations of Section 8(a)(1) and (3) and from laying off employees because of their union activity or because they gave testimony in support of unfair labor practice charges filed by the Union was based on the district judge's finding that reasonable cause existed to believe that Respondent had committed such actions It was not a final determination Nothing in the Decision and Order in that proceeding and nothing in the transcript of the Albanese testimony actually proves the charge They will be made part of the record for purposes of review, but I reject them as exhibits and have accorded no evi dentiary weight to them g On 1 April 1986, while Honors was in Dapilto s office, Ronnie Reeves, the supervisor for the casting de partment, entered and gave him a notice of layoff, effec tive 1 1/2 hours later Daplito remarked, I had nothing to do with that It came right from the top No reason 992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was stated in the notice or given by Dapolito or Reeves for the action. h. In conversations had at a later date with Lee by two employees , Lee told them that the reason for Honors' layoff was his inability to do any of the work in the unit that was available. The General Counsel asserts that the foregoing presen- tation establishes a discriminatory layoff. In essence, the case consists of evidence of Honor's open union activity, his testimony against Respondent in an unfair labor prac- tice proceeding, high level of experience on the job, short notice of layoff, failure to state any reason at the time of the layoff, the remark by Dapolito, and subse- quent assertion of a pretextual reason by a management representative. The case is not without its difficulties . Honors was shop chairman and his activity on behalf of the Union was never a secret. There is not a scintilla of evidence to support the General Counsel's assertion that he was laid off in the belief that the unfavorable publicity was being generated by him . The only remark attributable to man- agement in connection with the publicity is Lee's remark that the Company was hurt by the publicity and that it was affecting the outlook for improvement in the job sit- uation. That remark does not remotely touch the issue of Honor's involvement in the publicity. Aside from the publicity aspect, there appears no evidence of hostility to Honors by reason of his union activity; he was recalled to work and continued working through the winter of 1985- 1986, a time when the barrage of adverse publicity was at its worst. The case under Section 8(a)(4) is nonexistent. Honors, on cross-examination, disclaimed any knowledge of dis- crimination because anyone testified (he gave no evi- dence at all on direct examination that would have estab- lished such discrimination): Q. (By Mr. Worboys) Sir, let me ask you specifi- cally; do you know any employee who Accurate Die Casting had discriminated against for filing charges or giving testimony? A. I know of none. I discern no connection between any of the events of this case and the timing of Honors ' layoff. Nevertheless, a prima facie case of violation of Section 8(a)(3) is seen to exist when consideration is given to fac- tors such as the long and increasingly bitter strike, which I have determined to be an unfair labor practices strike, the position that Honors held as a union leader in the shop, the Respondent's persistent refusal to consult with the Union regarding a long series of significant unilateral actions violative of the expired collective-bargaining agreement and established practice in the plant , the fail- ure to state any reason to Honors at the time of his layoff, Dapolito's attribution of the layoff decision to top management, and Lee's attribution of the action to a pur- ported , reasoning that does not withstand scrutiny. Con- sequently, there was enough in the record to impose on Respondent the burden of showing a lawful business reason for its action, Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 ( 1st Cir. 1981), cert . denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393, 403 (1983). The Respondent's explanation for the layoff of Gerald Honors, as set forth in its answer, is as follows: The named individual was laid off due to the fact that there was no work for which he was qualified. Lee testified that, while he did not participate in the initial decision , he was asked to and did review the basis on which the recommendation for layoff was made: Q. On what grounds? A. Lack of versatility, he could not work on some of the larger machines; just, they didn't think he was one of the better workers at that time. Q. And if the company gets more business, what's the company's position as far as the recall of Mr. Honors? A. He would be called back. Q. . . . what's the company's view in regard to him as his ability to work? A. He's a medicore operator. In a meeting in his office with two employees named Janette Morse and Leona Snyder, Lee had a discussion which he quoted in his testimony as follows: Q. And was there anything else discussed that you recall? A. We discussed-they asked me about Jeff Honors and why was he laid off. Q. Okay. And what did you say in response to this? A. I told them that the reason he was laid off was because there was a lack of work in the ma- chines that he was most used to working on. The pretextual nature of this defense is shown by the testimony of Honors , Morse, and Snyder and by the complete failure of the Respondent to rebut it by pro- ducing persons in its employ who would have been in a position to do so if the facts were contrary to the testi- mony. Honors, of course, testified to his lengthy experience with the company and his qualifications in the castings department . He testified to his layoff on short notice and without the statement of any reason . The failure to state a reason for discharge or layoff is recognized as a cir- cumstance to be considered in determining whether a violation of the Act is involved. Honors testified to Da- polito's comment that the order for his layoff came "right from the top ." Although I find no connection es- tablished to the visit to the plant made by Slyman, the board chairman, several days before Dapolito's remark, by itself, is sufficient to require an explanation from Re- spondent. Respondent's failure without explanation to produce Dapolito and Reeves as witnesses compels me to infer that had they testified their testimony would have corroborated that of Honors. The two employees to whom Lee had spoken, Janette Morse and Leona Snyder, visited the plant to find out about the prospects for returning to work. Their testimo- ACCURATE DIE CASTING CO ny along with Honors testimony, demonstrates that the stated reason for layoff is wholly insupportable Morse testified that she had personally seen Honors run the big foundry machines Snyder testified that she had been an inspector and had examined items that Honors had worked on and found his work to be excellent That would tend to corroborate testimony by Honors that his work had been praised by supervisory personnel only weeks before his layoff The testimony of Honors Morse, and Snyder, consid ered together with the length of Honors employment with the Company, and the fact that, as the testimony in dicated, he seemed to be personally known to top man agement, makes it impossible to believe that management really thought his work was deficient and that he was unable to work the machines that were being operated for the work then in the plant I note, further, the ab sence of any evidence that any inquiry was made to de termine if he could work any particular machine, it was obviously unnecessary to inquire because his qualifica tions were well known The element of timing in this situation is not clear from the evidence I am not convinced that Slyman seeing Honors in the plant was the precipitating event there is no evidence of animosity on the part of Slyman or of anything done about that time by Honors which would have triggered a hostile action Honors position as shop chairman was certainly well known, timing usu ally becomes germane when union activity is newly dis covered by an employer On the whole record, however it is apparent that something more is involved than merely ignoring seniori ty Respondent seems to have gone out of its way to ignore supersenionty Dapolito s remark cannot be ig nored Finding as I do, that the reason advanced by Re spondent is pretextual, I can only conclude that the layoff, and the failure to recall, Honors, is a discnminato ry act I find no evidentiary support for the allegation that Honors was laid off because of his testimony in proceed ings against Respondent and therefore find no violation of Section 8(a)(1) and (4) The violation of Section 8(a)(1) and (3) of the Act is clearly established 2 Discrimination against strikers It is alleged, and denied, that early in September 1985 Respondent demoted Frank Hrynoi from supervisor to a job in the unit while unreinstated strikers had still not been returned to work that on 8 October 1985, Re spondent recalled Tracy Crow a striker replacement who had been on layoff since March 1985 to a position in the unit at a time when unreinstated strikers had not yet been recalled to work and that on 22 November 1985 two returned strikers John Sullivan and David Howard were laid off though strike replacements with less seniority were retained These facts were conceded by Lee during the course of his testimony What is in dispute is the further allega tion of the complaint that in all of these instances Re spondent acted with the objective of discouraging union support and other concerted protected activities The facts of preferential layoffs and recalls having been con 993 ceded, Respondents position is that nothing more was involved than a permissible ignoring of prior seniority re stnctions I do not find that these instances involve merely a question of Respondents having ignored seniority I find that something more was involved, in the nature of overt discrimination against strikers Ignoring seniority was in these instances a discriminatory act by itself Giddings & Lewis, 255 NLRB 742 745 (1981) Not treating Sullivan and Howard as fully reinstated employees was discrimi natory Transport Co of Texas, 177 NLRB 180 185 (1969) The return of a supervisor to a job in the unit while former strikers with greater departmental seniority remain unreinstated and the recall from layoff of a strike replacement ahead of strikers are actions that clearly vio late the well settled principle that replaced economic strikers who have made an unconditional application for reinstatement and have remained available for employ ment are entitled to full reinstatement to fill positions left by the departure of permanent replacements Laidlaw Corp 171 NLRB 1366 (1968), affd 414 F 2d 99 (7th Cir 1969), Crossroads Chevrolet 233 NLRB 728, 730 (1977), enfd 603 F 2d 223 (9th Cir 1979), Nolan Systems, 268 NLRB 1248 (1984) Lee s justification on the basis that workers were being laid off or recalled on the basis of their work perform ance in insufficient in law, as an employers subjective determination in that regard cannot deprive former strik ers of their rights Lehigh Metal Fabricators 267 NLRB 568, 575 (1983) It is extremely important however, that there be no misunderstanding by reason of the charges with respect to the actual obligations of Respondent to the strikers The General Counsel has alleged, and I have found, that the Respondent has committed discriminatory ac tions in violation of Section 8(a)(1) and (3) of the Act by deliberately ignoring the rights of the strikers to recall That does not change the basic fact that Respondent has committed an even more egregious violation of the Act for which a remedy was already ordered in the decision rendered on the remand of Case 31-CA-12472 The strike was an unfair labor practice strike As noted in the discussion of the background of this case I found that Respondent had violated Section 8(a)(1) and (3) of the Act by failing to recall striking employees and by threat ening to replace them permanently That cannot be done in a strike caused by the unfair labor practices of the em ployer itself The Respondent in that case was expressly ordered to recall all striking employees who have uncon ditionally offered to return to work at the Fayetteville plant Lest there be any misapprehension that the find ings and orders somehow alter my previous findings and recommended order I call attention to the fact that in line with the earlier determination, I have reiterated the direction for recall, as explained in the section on the remedy CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. The Union is a labor organisation within the mean- ing of Section 2(5) of the Act. 3. The Union is the exclusive collective-bargaining representative of an appropriate collective-bargaining unit consisting of: All production and maintenance employees at the Fayetteville, New York facility, excluding laborato- ry employees, draftsmen, office and clerical employ- ees, professional employees, guards, watchmen and supervisors as defined in the Act. 4. Respondent violated Section 8(a)(1) and (5) of the Act by: (a) Failing and refusing to furnish to the Union, on re- quest, the names and seniority dates of returned strikers. (b) Unilaterally changing numerous terms and condi- tions of employment contained in its expired collective- bargaining agreement with the Union or sanctioned by long-standing past practice, without a valid impasse having been reached in its contract negotiations with the Union and without affording the Union, as a result, an opportunity to negotiate and bargain as the exclusive representative of Respondent's employees with respect to same, and without having made application to the Bank- ruptcy Court having jurisdiction of Respondent's petition for an arrangement under Chapter XI of the Bankruptcy Act for permission to make such changes. (c) Ignoring seniority and superseniority in making layoffs and recalls. 5. Respondent violated Section 8(a)(1) and (3) of the Act by: (a) Laying off Gerald Honors on 1 April 1986 and thereafter failing and refusing to reinstate him to his former or substantially equivalent position. (b) Transferring Frank Hrynoi, a supervisor, to unit position ahead of strikers with greater seniority. (c) recalling an employee originally hired as a strike replacement and thereafter laid off to a position in the unit while reinstated strikers had still not been recalled. (d) Laying off returned strikers while strike replace- ments with less seniority were retained. (e) Ignoring seniority and superseniority in making lay- offs and recalls. 6. Respondent has not committed any unfair labor practices except as herein found.. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. I shall accordingly recommend that Respondent be di- rected to furnish to the Union the names and seniority dates of all strikers who have been reinstated; reinstate the terms of the collective-bargaining agreement that ex- pired on 15 June 1984, and continue the same in effect until either the terms of a new agreement are reached or an impasse is reached; cancel all changes respecting terms and conditions of employment that had prevailed as a matter of accepted practice prior to the strike; and take measures to rectify the violations of the Act by reason of Respondent's having unlawfully replaced strik- ers and by reason of Respondent's having ignored senior- ity and superseniority provisions and having otherwise violated the Act in laying off and recalling striking em- ployees. I shall also recommend that Respondent be di- rected to honor the reinstatement rights of unreinstated strikers and proceed to recall strikers in a nondiscrimina- tory manner, recalling them to their former positions or, if those positions are not available, to substantially equiv- alent positions, without prejudice to their seniority rights or privileges, and make them whole for any loss of earn- ings and other benefits which they may have suffered by reason of their layoffs, with backpay to be computed in the manner prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716 (1962). As the recommended Order will be applicable to all unre- called strikers, no separate provision is strictly necessary in the cases of Gerald Honors, John Sullivan, and David Howard. However, as distinctive circumstances exist in their respective cases and a determination on appeal may conceivably result in a different provision for the unre- called strikers in general, I will recommend specific pro- visions for their reinstatement on the basis of the viola- tions committed in their particular situations. [Recommended Order omitted from publication.]