Sks Die Casting & Machining, Inc.

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