OGS Technologies, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 642 O.G.S. Technologies, Inc. and United Automobile, Aerospace & Agricultural Implement Workers of America, Local 376, AFL–CIO. Cases 34– CA–9336 and 34–CA–9458 February 11, 2011 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND HAYES On August 23, 2006, Administrative Law Judge Clifford Anderson issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions; to modify his remedy consistent with our recent decision regarding compound interest on backpay awards;2 and to adopt the recommended Order as modified and set forth in full below.3 1 On May 31, 2006, the Board set aside Administrative Law Judge Howard Edelman’s prior decision in this case and remanded the case to Chief Administrative Law Judge Giannasi for reassignment. O.G.S. Technologies, 347 NLRB 299 (2006). The Board instructed the new judge to rely on Judge Edelman’s demeanor-based credibility determi- nations in deciding the case, unless they were inconsistent with the weight of the evidence. Pursuant to our instruction, Judge Anderson has found it appropriate to rely on each of Judge Edelman’s demeanor-based credibility findings and, in each instance, has provided a detailed discussion of why he found these findings to be consistent with the weight of the evidence. The Respondent has excepted to Judge Anderson’s reliance on some of these credibility findings. We have carefully examined the record and find no basis for reversing Judge Anderson’s decision to rely on these credibility findings. See Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). All references to the judge in this case are to Judge Anderson, unless otherwise indicated. The Respondent argues that allegations that it unlawfully subcon- tracted the die engineers’ work, laid off Petroraio, and eliminated the die engineers’ position are time barred under Sec. 10(b) of the Act. However, the Union filed charges concerning the unlawful subcontract- ing and layoff approximately 10 days after those actions allegedly occurred, clearly within the 10(b) period. As to the elimination of the die engineer’s position, the record shows that the Union did not learn about it until the trial. At that time, the General Counsel timely amend- ed the complaint. Thus, the Respondent’s 10(b) defenses are meritless. 2 We shall add a make-whole remedy for employee Rich Carey to compensate him for any losses caused by the Respondent’s unilateral changes to his duties and position. In accordance with our decision in Kentucky River Medical Center, 356 NLRB 6 (2010), we modify the judge’s remedy by requiring that backpay and other monetary awards shall be paid with interest compounded on a daily basis. 3 We shall modify the judge’s recommended Order to provide for the posting of the notice in accord with J. Picini Flooring, 356 NLRB 11 (2010). For the reasons stated in his dissenting opinion in J. Picini This case arose following the purchase of the Water- bury Button Company (Waterbury) by Respondent O.G.S. Technologies, Inc. (OGS). The primary issues are whether the judge correctly found that OGS, conced- edly a successor employer, violated Section 8(a)(5) and (1) of the Act by: (1) excluding the newly created die engineers classification from the existing collective- bargaining unit; and (2) unilaterally subcontracting to other firms the work of cutting dies performed by its die engineers, eliminating the die engineer classification, and laying off one of the two employees holding that position while changing the duties of the other. As more fully explained below, we agree with the judge. I. FACTUAL BACKGROUND On January 21, 2000,4 OGS purchased the assets of Waterbury, a manufacturer and wholesale seller of brass buttons. OGS significantly reorganized the work force: it reduced the number of employees in the production- and-maintenance (p&m) unit from 45 to 22, and reduced the number of p&m classifications from 49 to 9. On January 24, it began operations with 20 unit employees, 19 of whom were former Waterbury employees. OGS continued the production process utilized by Waterbury, but OGS cross-trained employees to perform the job du- ties of more than one of the former job classifications. Prior to the purchase, the Union represented Water- bury’s p&m employees and had been a party to a series of collective-bargaining agreements covering those em- ployees.5 The agreements included the following unit description: All production and maintenance employees at its Wa- terbury, Connecticut division, including receiving, weighing and stock clerks, but excluding office and professional employees, guards, drafters, drafting, tool room and billing clerks, nurse, laboratory employees, expediters, timekeepers, supervisors, factory supervi- sors, and all other supervisors as defined in Section 2(11) of the National Labor Relations Act, as amended. The Waterbury unit included two employees designat- ed master die cutters, who were responsible for fabricat- ing the dies used in the button manufacturing process. Upon taking over the company, OGS eliminated the master die-cutter position and put in its place a new job Flooring, Member Hayes would not require electronic distribution of the notice. We shall substitute a new notice to conform to the violations found and the Board’s standard remedial language. 4 All dates are in 2000, unless otherwise indicated. 5 The term of the last agreement between Waterbury and the Union was to run through March 12, 2000. 356 NLRB No. 92 O.G.S. TECHNOLOGIES, INC. 643 classification, die engineer. The first three paragraphs of the job description for this new classification were the job description for the Waterbury master die cutters, ver- batim; they described the duties involved in creating but- ton dies. OGS added to that description an additional responsibility, researching new die-cutting processes and products. See Appendix A. OGS managers interviewed Mike Petroraio, one of the Waterbury master die cutters, for the new position. They informed him that the job would differ from his former position: the die engineer would be part of the manage- ment team and have the added responsibility, set forth in the job description, of seeking out new methods and pro- cesses to reduce the time needed to produce dies. On January 31, OGS hired Petroraio and Rich Carey, the other Waterbury master die cutter, as die engineers. When OGS started production in February, Petroraio and Carey performed the same duties as they had for Waterbury, namely cutting dies by hand, preparing dies for use by the button-stamping machines, and fixing any subsequent problems with the dies during the manufac- turing process. In addition, they spent approximately 2 percent of their time using the internet to research new technologies.6 Petroraio testified that he passed on any information acquired through this research to his superi- ors. When acquired by OGS, Waterbury was subcontract- ing 85 percent of its die-making to other firms. The re- maining 15 percent was performed in-house by Petroraio and Carey.7 Mike Salamone, OGS president and majori- ty owner, testified that whether the work was done in- house or by subcontractors, Waterbury had used dies cut by hand, which was a time-consuming process. Subcon- tractors doing the work could take 16 to 20 weeks to produce a new die. In contrast, Salamone testified, ven- dors based in China using more automated procedures (utilizing laser and computer technology) could produce a new die in 2 to 3 weeks. In order to reduce the turna- round time for the design and manufacture of new but- tons, Salamone decided to explore acquiring this equip- ment or using subcontractors who employed it. On March 2, after engaging in preliminary discussions with the Union, OGS recognized the Union as the bar- gaining representative of the p&m employees. But on 6 Over time, OGS made other changes to the die engineers’ duties and working conditions, including integrating their operations with those of a graphic designer, paying them on a salaried instead of hourly basis, having them report to the engineering manager (instead of the production manager), and giving them their own phones, voice mail, computers, and internet access. 7 In its brief in support of exceptions, OGS states it began operations subcontracting the same percentage of work. March 22, it announced that it was removing the die en- gineers from the bargaining unit.8 In August or September, Salamone decided that rather than upgrade the Company’s own die-cutting capabilities through the purchase of advanced equipment, OGS would, at least for the time being, begin shifting its al- ready subcontracted work to firms that used that equip- ment.9 At the same time, Salamone decided to subcon- tract all of the remaining in-house die-cutting work and to eliminate the die engineer classification. On October 6, OGS laid off Petroraio. It placed Carey in a new man- agerial position, product development technician. In that capacity, Carey worked more closely with management in evaluating new technology and identifying appropriate firms to use as subcontractors. It is undisputed that OGS did not provide the Union with an opportunity to bargain over the removal of the die engineers from the bargaining unit, the later decision to subcontract the remaining in-house die-cutting work, or the resulting decision to lay off Petroraio. In fact, the Union did not learn that OGS had eliminated the die en- gineer positions until the unfair labor practice hearing. II. ANALYSIS A. Exclusion of the Die Engineers Classification from the Bargaining Unit A successor employer, such as OGS, ordinarily is free to establish employees’ initial terms and conditions of employment unilaterally. Like any other employer, however, it may not remove job classifications from an existing bargaining unit absent reaching agreement with the unit employees’ collective-bargaining representative or satisfying the conditions set by the Board. See SFX Target Center Arena Management, LLC, 342 NLRB 725, 734–736 (2004), and cases cited;10 Bay Shipbuilding 8 The Respondent recognized the Union as the bargaining repre- sentative for the following nine new job classifications: (1) automation tool-setter/operator; (2) die sinker/cutter; (3) toolmaking, eyelet; (4) maintenance, electrician; (5) maintenance/repairer; (6) machine opera- tor/tender; (7) metal finisher/plater; (8) toolsetter/operator; and (9) quality technician/machine operator. 9 Salamone testified as follows: [W]e felt it was more cost effective at that point to outsource a lot of the product, a majority of the dies that we were making, and still try to perfect that technology before we invested, you know, hundreds of thousands of dollars into equipment. There is [sic] two or three in- roads, means and methods of doing it; and before we married our- selves to a particular technology, we wanted to make sure that it’s the correct way to go for the future. 10 OGS argues that its unilateral determination that the Union would no longer have the right to bargain on behalf of the die engineers, who had historically been included in the bargaining unit, was justified as a result of the Union’s refusal to bargain over the issue. The law is clear, however, that unit composition is a permissive subject of bargaining. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 644 Corp., 263 NLRB 1133, 1139–1140 (1982). Thus, alt- hough a successor employer is free to make changes in the duties of, as well as the terms and conditions of, em- ployment in a particular unit position, the position re- mains part of the bargaining unit unless the employer establishes, in a unit clarification proceeding or in its defense to an 8(a)(5) allegation, that the employees in the position no longer share a community of interest with the employees comprising the rest of the unit. In sum, to justify the unilateral removal of a position from a bar- gaining unit, the employer bears the heavy burden of demonstrating that the failure to remove the classifica- tion would have rendered the unit inappropriate. See Bay Shipbuilding Corp., 263 NLRB at 1139–1140, enfd. 721 F.2d 187 (7th Cir. 1983).11 Applying that standard, we agree with the judge that OGS violated the Act by removing the die engineers from the historical bargaining unit. Contrary to OGS’ assertion, we find that the changes in the die engineers’ duties did not sever their community of interest with the unit. We rely specifically on the credited testimony of employee Petroraio, who stated that the new duties as- signed to him in the die engineers classification took up only 2 percent of his worktime. We also agree with the judge that OGS’ changes to the die engineers’ pay status and other working conditions did not outweigh the fact that Petroraio’s work duties remained almost entirely the same as before. Cf. K.G. Knitting Mills, 320 NLRB 374 (1995) (salaried status and other more favorable working conditions did not require exclusion from the bargaining unit of employees who continued to perform the same work). OGS also argues it properly excluded the die engineers from the unit because their duty to research the introduc- tion of new technologies created a conflict of interest between them and the other unit employees. Although the Board has excluded employees from a bargaining unit when performance of their job duties creates a con- See SFX Target Center, 342 NLRB at 735 (citing Newspaper Printing Corp. v. NLRB, 625 F.2d 956, 964–965 (10th Cir. 1980), cert. denied 450 U.S. 911 (1981)). Accordingly, as the judge found, OGS could neither compel the Union to bargain over the issue nor use the Union’s refusal to do so as a justification for its unilateral action. 11 In Bay Shipbuilding, supra, the Board adopted a judge’s decision finding that the employer violated Sec. 8(a)(5) by failing to recognize the union as the representative of employees engaged in a computerized process that supplemented a preexisting manual process performed by bargaining unit employees. Although the employer’s introduction of computer technology had significantly altered the work process, the Board found that the similarities between the manual and computerized versions of the work, the interaction between the two groups of em- ployees, and the continuity of supervision all supported a finding that the computer operators remained part of the unit. flict with the interests of other unit employees,12 we find no such conflict here. The additional duty of the die en- gineers was simply to explore possible uses of advanced technologies, the results of which they passed on to man- agement. As shown, the performance of that duty consti- tuted a minimal percentage of their work. Moreover, there was no evidence that the die engineers had any in- put whatsoever into the choice or implementation of new technologies. In the circumstances, we find that the die engineers, as a result of their limited research responsi- bilities, were unlikely to have any significant impact on the job security of their unit colleagues.13 In short, OGS failed to meet its burden of showing a conflict of interest. Accordingly, we find that OGS violated Section 8(a)(5) and (1) by excluding the die engineers from the bargaining unit and by refusing to bargain with the Un- ion over their terms and conditions of employment. B. Unilateral Subcontracting of the Die-Cutting Work and the Elimination of the Die Engineer Classification We also adopt the judge’s finding that OGS violated Section 8(a)(5) and (1) by unilaterally subcontracting its remaining die-cutting work and by making the other uni- lateral changes that followed from that action. In Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964), the Supreme Court held that an employer’s “replacement of employees in the existing bargaining unit with those of an independent contractor to do the same work under similar conditions of employment” is a mandatory sub- ject of bargaining. Id. at 215. In an influential concur- ring opinion, Justice Stewart identified another type of management decision, “concerning the commitment of investment capital and the basic scope of the enterprise” that “lie[s] at the core of entrepreneurial control.” Id. at 223. Those decisions, the concurrence stated, are not subject to collective bargaining. Id. Fibreboard ultimately became the basis of the Board’s Torrington line of cases. Torrington Industries, 307 NLRB 809 (1992). There, the Board held that a decision to subcontract the work of employees unaccompanied by any substantial commitment of capital or change in the scope of the business was not the type of decision that Justice Stewart had identified as being at “the core of entrepreneurial control,” and was, therefore, subject to 12 For example, in Cablevision Systems Development Co., 251 NLRB 1319, 1324 (1980), enfd. 671 F.2d 737 (2d Cir. 1982), the Board excluded the audit employees from the bargaining unit because they performed essentially a security function, determining whether cable installers in the unit were setting up unlawful connections for custom- ers. 13 As shown above, OGS’s interest in new technologies was focused on die-cutting. If that put any jobs at risk, it was the die engineers’ own jobs. O.G.S. TECHNOLOGIES, INC. 645 bargaining. Id. at 810–811. In Torrington itself, the Board found a bargaining violation where the employer laid off two truckdrivers and replaced them with a non- unit employee and independent contractors. Applying Torrington here, the judge found that OGS’ decision to subcontract the remaining die-cutting work, resulting in the replacement of its own die engineers by outside firms, was a mandatory subject of bargaining. OGS, however, contends that under the Supreme Court’s decision in First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), which expanded upon Justice Stewart’s concurring opinion in Fibreboard, it had no duty to bargain. We reject that argument. In First National Maintenance, the question was whether the employer, which provided maintenance ser- vices to other businesses, was obligated to bargain over its decision to relinquish one of its maintenance con- tracts, which resulted in the layoff of some of its em- ployees. To answer the question, the Court identified three types of management decisions, each subject to a bargaining obligation to different degrees. First, “[s]ome management decisions, such as choice of advertising and promotion, product type and design, and financing ar- rangements, have only an indirect and attenuated impact on the employment relationship” and are thus not manda- tory subjects of bargaining. Second, “[o]ther manage- ment decisions, such as the order of succession of layoffs and recalls, production quotas, and work rules, are al- most exclusively ‘an aspect of the relationship’ between employer and employee” and are thus mandatory sub- jects. Finally, there is a third type of management deci- sion, one that has “a direct impact on employment,” be- cause it leads to job loss, but has “as its focus only the economic profitability” of the enterprise. 452 U.S. at 677. Whether there is a duty to bargain about the third type of decision requires further analysis. In First National Maintenance itself, the Court con- cluded that the employer’s decision fell in the third of its three categories, and, after further analysis, concluded that the employer’s termination of the maintenance con- tract was not a mandatory subject of bargaining. In brief, the Court, which characterized the employer’s decision as “akin to the decision whether to be in business at all,” found that it was “a change in the scope and direction of the enterprise” and therefore that the employer had no duty to bargain over it. Id. at 677, 686–688. The Court, however, emphasized the relative narrowness of its hold- ing, observing that it “intimate[d] no view as to other types of management decisions, such as plant reloca- tions, sales, other kinds of subcontracting, automation, etc., which are to be considered on their particular facts.” Id. at 686 fn. 22. OGS contends that its subcontracting of the remaining die-cutting work was, like the decision in First National Maintenance, an entrepreneurial decision “involving a change in the scope and direction of the enterprise,” and thus that it had no duty to bargain before implementing it. Consequently, OGS contends, the judge erred by find- ing a violation based on Torrington, supra. We disagree. In contrast to First National Maintenance, OGS made certain operational changes, but they did not amount to a “partial closing” or other “change in the scope and direc- tion of the enterprise,” which remained devoted to the manufacture and sale of brass buttons to the same range of customers. Id. at 677, 681. Before and after the deci- sion to subcontract die cutting, OGS produced and sup- plied brass buttons to customers. Before and after the decision, OGS, either directly or through its subcontrac- tors, used a mix of technologies to cut the dies needed to produce the buttons. Before and after the decision, OGS utilized subcontractors to perform the vast majority of the die cutting (85 percent before and 100 percent after). The decision at issue simply resulted in a marginal in- crease in the percentage of cutting work the Respondent subcontracted and a modest change in the functions per- formed in-house, but not the abandonment of a line of business or even the contraction of the existing business. Given this essential continuity in its operations, OGS’ action in marginally expanding its subcontracting in or- der to avail itself of more advanced technologies for cut- ting dies does not rise to the level of a change in the scope of the enterprise or its direction. Specifically, we reject the dissent’s characterization of a subcontracting decision of such limited scope as a “fundamental rea- lignment of the Respondent’s production processes.” In this regard, this case is quite similar to Winchell Co., 315 NLRB 526 (1994), enfd. 74 F.3d 1227 (3d Cir. 1995), where the Board found that a printing company could not unilaterally lay off its pre-press employees merely because it had invested in desktop computers that allowed its customers to prepare their own material for printing. The Board reasoned that the technological advance of the desktop computers changed the Respondent’s operation by degree not kind. The Respondent still performed those steps nec- essary to provide the finished product to the customer. The Respondent merely engaged in slightly fewer steps than theretofore. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 646 Id. at 526 fn. 2. Here, too, OGS’ small increase in subcon- tracting and decrease in in-house production of dies repre- sented a change “by degree, not kind.” Id.14 Thus, we agree with the judge that this case is con- trolled by Fibreboard and Torrington Industries. OGS emphasizes that its subcontracting decision did not turn on its wage bill, but was based on its desire to increase the speed of production through “technological im- provements in the die-making process.”15 In Torrington, however, the Board held that whether subcontracting is a mandatory subject of bargaining (“Fibreboard subcon- tracting”) does not depend on whether the Respondent’s decision to replace [unit employees] with nonunit per- sonnel was motivated by labor costs in the strictest sense of that term.” 307 NLRB at 811. Fibreboard controls when the decision “involved unit employees’ terms of employment and it did not ‘lie at the core of entrepre- neurial control.’” Id. at 811. Here, the decision turned on how fast the employees could perform their work. Similarly, in Torrington, supra, the Board held that bar- gaining was required, despite the employer’s argument that its subcontracting decision turned on inadequate equipment and the incapacity of its employees. 307 NLRB at 811. Here, although the subcontractors’ em- ployees employed different technologies to produce the dies than were used by OGS’ die engineers, this case still falls closer to Fibreboard along the spectrum of man- agement decisions than to First National Maintenance, which involved a decision “akin to the decision to be in business at all.” 379 U.S. at 677.16 14 Indeed, even this change was not necessarily permanent. In his testimony(quoted above at fn. 9), OGS President Salamone implied that it might bring the die-cutting work back in-house, once it was better able to assess the merits of the available technologies by first utilizing them through subcontractors. 15 Brief on exceptions at 35. 16 The two Board decisions cited by the Respondent are inapposite. In each case, the Board found that there was a change in the “nature and direction” of the business. Garwood-Detroit Truck Equipment, 274 NLRB 113, 116 (1985); Kroger Co., 273 NLRB 462, 463 (1984). Moreover, in neither case did the decision turn on employees’ terms or conditions of employment. In Kroger, the Board held that the employ- er was not required to bargain about the closure of its one remaining egg processing facility, which it had operated to supply eggs to its retail stores. The Board rested its decision on a finding that the decision turned on a shift in the industry to more efficient “integrated” egg pro- cessing where production and processing are performed at the same location, resulting in a lack of raw materials (i.e., eggs) for the unin- tegrated processing facility. Id. at 462–463. Similarly, in Garwood- Detroit Truck Equipment, the Board held that the employer, a supplier, installer and servicer of truck parts, was not required to bargain over its decision to subcontract all of the installation and service work and restrict itself to supplying parts. As the employer’s general manager informed the union, the employer “wanted to get out of the garage business, per se, and more or less, go towards a parts distribution type situation.” 274 NLRB at 115. No similar decision was made here. We would reach the same result even if we concluded that the balancing test laid out in First National Mainte- nance, rather than the analysis set forth in Fibreboard, applied here. That test requires weighing the “employ- er’s need for unencumbered decision-making” against the benefit that mandatory bargaining would lend to “la- bor-management relations and the collective-bargaining process.” 452 U.S. at 679.17 The outcome turns, as the Supreme Court explained, on the precise management decision involved, considered on its particular facts. Id. at 686 fn. 22. In defending its failure to bargain, OGS cites no par- ticular need for “speed, flexibility, and secrecy” in the contracting out of the remaining in-house die cutting. Id. at 682–683. Any such contention would be dubious in light of OGS’ claim that it deliberated almost 10 months over what course of action to take. It seems rea- sonable that, with timely notice to the Union, good-faith bargaining over the decision could have been completed during that period. OGS asserts that bargaining over the decision would have been futile because it has “no feasible alternative to” the subcontracting, given the technological advantage of the contractors and the cost of obtaining comparable equipment in-house. But as the District of Columbia Circuit has observed, the “Board is authorized to insist that such an ‘argument’ be presented first to the union in the bargaining context.” Rock-Tenn Co. v. NLRB, 101 F.3d 1441, 1446 (D.C. Cir. 1996). The employees here possessed considerable expertise concerning the cutting of dies and how quickly it could be done using the exist- ing in-house technology. Indeed, OGS itself tasked two of them with investigating new technologies and report- ing their findings to management. In these circumstanc- es, we do not believe that OGS has demonstrated that bargaining would necessarily have been futile. As in Fibreboard, “although it is not possible to say whether a satisfactory solution could be reached, national labor policy is founded on the congressional determination that the chances are good enough to warrant subjecting such issues to the process of collective negotiation.” 379 U.S. at 214. OGS could have presented the Union with the stark choice its conduct has now placed before us in litigation. At that time, now 10 years ago, before the decision was made and implemented, the parties might have reached a 17 “[I]n view of an employer’s need for unencumbered decisionmak- ing,” the Court observed, “bargaining over management decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.” Id. at 679. O.G.S. TECHNOLOGIES, INC. 647 multitude of different, mutually advantageous agree- ments18 or arrived at impasse, thereby privileging OGS to act unilaterally. It was OGS’ decision to proceed uni- laterally then that forces us to turn back the clock now, by ordering OGS to restore the status quo so that it can honor its obligation to bargain. Accordingly, we find that OGS violated Section 8(a)(5) and (1) by failing to provide the Union with no- tice and opportunity to bargain over the decision to sub- contract die-cutting work, by eliminating the die engineer classification, by laying off employee Petroraio, and by changing the duties of employee Carey. We conclude that the judge properly ordered the restoration of the sta- tus quo ante, in order to provide the Union with a true opportunity to bargain over the subcontracting decision. “When bargaining unit work has unilaterally and unlaw- fully been removed, whether by subcontracting or reloca- tion, it is appropriate to order restoration of the work to the bargaining unit, unless the employer has demonstrat- ed that restoration would be unduly burdensome.” Pow- er, Inc., 311 NLRB 599, 600 (1993), enfd. 40 F.3d 409 (D.C. Cir. 1994). We therefore find no merit to OGS’s exception that the judge erred in providing a remedy be- yond that granted for a failure to engage in bargaining merely over the effects of the subcontracting decision. See generally Transmarine Navigation Corp., 170 NLRB 389 (1989). AMENDED REMEDY Having found that OGS violated the Act as set forth above, we shall order that it cease and desist therefrom and post remedial Board notices. As is traditional in cases involving unilateral changes in terms and condi- tions of employment, we shall order that OGS restore the status quo ante and provide the Union with notice and an opportunity to bargain regarding any future proposed changes and their effects.19 We shall also require OGS to offer to restore Michael Petroraio to his former position as a die engineer and make him whole for any loss of wages and benefits he may have suffered by virtue of his wrongful layoff, with interest. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with inter- 18 For example, the Respondent’s president implied in his testimony (quoted above at fn. 9) that it might even bring the die-cutting work back in-house, once it was better able to assess the merits of the availa- ble technologies by first utilizing them through subcontractors. The die engineers might have been retained to perform that assessment and, in the process, to acquire the skills need to use the new technology when it was employed in-house. 19 Member Hayes notes that the Respondent may argue at compli- ance that restoring the status quo ante would be unduly burdensome. Lear Siegler, Inc., 295 NLRB 857, 862 (1989). est as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). We shall also require OGS to offer to restore Rich Carey to his former position as a die engineer and make him whole for any loss of wages and benefits he may have suffered by virtue of his transfer to a nonunit position. We shall order OGS to make him whole for any loss of earnings and other benefits resulting from its unlawful unilateral changes as prescribed in Ogle Protection Ser- vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus interest as computed in New Horizons for the Retarded, supra, compounded daily as prescribed in Ken- tucky River Medical Center, supra. ORDER The National Labor Relations Board orders that the Respondent, OGS Technologies, Waterbury, Connecti- cut, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize the Union as the representative as the exclusive collective-bargaining rep- resentative of the die engineers as part of the collective- bargaining unit of its production and maintenance em- ployees and of the individuals Michael Petroraio and Rich Carey in those positions. (b) Subcontracting the manufacture of dies without providing notice or an opportunity to bargain to the Un- ion about either the decision or its effects. (c) Laying off die engineer Michael Petroraio. (d) Changing the job title and duties of die engineer Rich Carey. (e) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Recognize the Union as the exclusive collective- bargaining representative of the die engineers as part of the collective-bargaining unit of its production and maintenance employees and of Michael Petroraio and Rich Carey in the die engineer positions. (b) Within 14 days from the date of this Order, offer to Michael Petroraio his former position of employment, or if no such position exists, to a substantially equivalent position of employment, without prejudice to his seniori- ty, or other rights and privileges he previously enjoyed. (c) Make Michael Petroraio whole in the manner set forth in the remedy portion of the decision from the date of his layoff, until the date of a valid offer of reinstate- ment. (d) Restore the job duties of former die engineer Rich Carey. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 648 (e) Make Rich Carey whole in the manner set forth in the remedy portion of the decision from the date OGS changed his position from die engineer until he is re- stored to that position. (f) Restore the status quo ante respecting the handling of dies as part of OGS’ manufacturing processes. (g) Preserve and within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all records, including an electronic copy of such records if stored in electronic form, necessary to determine if the terms of this Order have been compiled with. (h) Within 14 days after service by Region 34, post copies of the attached notice at its Waterbury, Connecti- cut facility set forth in the appendix.20 Copies of the notice, on forms provided by the Regional Director for Region 34, in English and such other languages as the Regional Director determines are necessary to fully communicate with employees, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted in each of the facilities where unit employees are employed. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communi- cates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure the no- tices are not altered, defaced, or covered by other materi- al. In the event that, during the pendency of these pro- ceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at the closed facility at any time after March 22, 2000. (i) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 20 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” MEMBER HAYES, dissenting in part. Contrary to my colleagues, I find that the Respond- ent’s decisions to discontinue antiquated die-cutting methods, eliminate the die engineer position, and to sub- contract its die-cutting to firms using high-tech laser technologies were core entrepreneurial decisions over which the Respondent was not obligated to bargain under First National Maintenance Corp. v. NLRB, 452 U.S. 666, 677 (1981). I therefore dissent in part. The Respondent’s president testified that he had de- termined, by the time the Respondent purchased the company’s assets in January 2000, that the hand-cut die- making process of its predecessor was no longer eco- nomically viable. That antiquated process required a 16- to 20-week turnaround time, which was far too long to compete in the fashion industry, where competitors, pri- marily based in China, using newer, laser- and computer- based technology, could turn around button dies in less than 3 weeks. Indeed, by the time of the takeover, only 15 percent of the Respondent’s die-cutting work re- mained in-house. Given the prohibitive capital costs of acquiring the sophisticated machinery necessary to pro- duce dies suitable for modern production requirements, and the continuing evolution of die-cutting technology, the Respondent made the core entrepreneurial decision to cease the use of hand-cut production methods altogether, whether in-house or at subcontracting facilities, and to rely solely on more modern processes and equipment used by available subcontractors. That decision con- cerned whether and how to commit investment capital and represented a fundamental realignment of the Re- spondent’s production processes; precisely the type of core entrepreneurial decision vital to survival in our highly competitive global marketplace and shielded from decisional bargaining obligations under First National Maintenance and its progeny. In concluding otherwise, the majority notes that both before and after the decision at issue the Respondent’s operations remained devoted to the manufacture and sale of brass buttons to the same range of customers. How- ever, that narrow focus on the end product of production misses the point; what is at issue here is whether the Re- spondent is obligated to bargain over the decision to use one form of technology to produce its goods rather than another. There is no doubt that the cumbersome and inef- ficient work performed by the hand cutters differed sub- stantially from the automated laser- and computer-based methods employed by subcontractors. The Respondent’s ability to rapidly adapt its production methods to capital- ize on more efficient and cost-effective technology is critical to its ability to compete internationally. O.G.S. TECHNOLOGIES, INC. 649 My colleagues also characterize the decision as a mar- ginal change because it only involved the 15 percent of die-cutting work that the Respondent was still doing in- house. I disagree: the Respondent made a business deci- sion to eliminate the use of an antiquated method of pro- ducing stamping equipment and to rely solely on high- tech laser and EDM processes. While the decision’s im- pact on unit employees was limited to the 15 percent of the die-cutting work that remained in-house, the overall change affected the Respondent’s entire production pro- cess and represented a core entrepreneurial decision about the scope and direction of the business. Finally, there is no indication that bargaining would have or could have had any effect on either the Respondent’s need for the new technology or the scope of the capital investment that would have been required to bring that technology in-house. Thus, applying the balancing test of First National Maintenance, supra at 679, I find that the Respondent’s need for unencumbered decision making over its production processes and technologies out- weighed any potential benefits to the collective- bargaining process. Consistent with extant precedent, I would require the Respondent to bargain, on request, with the Union over the effects of its decision, specifically the layoff of one employee and the change in duties of another, under Transmarine Navigation Corp., 170 NLRB 389 (1989). For the reasons set forth above, I respectfully dissent in part. APPENDIX A [OGS Job Description for Die Engineer position] Reports to the Engineering Manager. Position requires an intensive knowledge of cutting techniques used to make master hubs and working dies used for embossing. Requires a thorough knowledge of engraving techniques including (but not limited to) hand tools, pantographs, acid etching, heat treating methods and other related pro- cedures and equipment related to the creation of dies. Must have the ability to cut dies maintaining extremely close tolerances in order to cut (negative/positive) dies and hubs, or to make design changes. Proficient in the use of EDM processes, CAD/CAM equipment (utilizing Smart CAM or similar type programming knowledge). May be required to learn/incorporate other methods, as they become available. Repair or coordinate the repair of embossing tools. Analyze damaged tools to recommend corrective action by others. Maintain the storage of master hubs. Seek out new methods through seminars, trade litera- ture, internet, contacts in the industry, etc. that could be incorporated into the work-cell that either reduces costs, improves the quality or significantly reduces the lead time required to produce working tools from concept to completion. Work may require day trips to consult with vendors of equipment, supplied, or processes. Through journals, seminars, Internet, etc. keep abreast of new products and process that could be incorporated into the area that either lowers manufacturing costs, im- proves the quality, or offers something new and/ or dif- ferent that is beneficial to, or increases company revenue. Detect and report defective materials, improper opera- tion, and other unusual condition to proper supervision. Keep work area and equipment in a clear orderly condi- tion. Keep machines properly lubricated. Follow pre- scribed OSHA and DEP regulations in addition to Com- pany policy with regard to personal safety, the safety of others and the proper handling or regulated materials. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize the Interna- tional Union, the United Automobile, Aerospace & Agri- cultural Implement Workers of America, Local 376, AFL–CIO (the Union) as the collective-bargaining repre- sentative of our die engineers as part of the collective- bargaining unit of our production and maintenance em- ployees. WE WILL NOT subcontract unit work without giving the Union and notice and opportunity to bargain over our decision to subcontract and its effects. WE WILL NOT lay off bargaining unit employees with- out giving the Union notice and opportunity to bargain. WE WILL NOT eliminate bargaining unit jobs without giving the Union notice and opportunity to bargain. WE WILL NOT in any like or related manner violate the Act. WE WILL recognize the Union as the collective- bargaining representative of our die engineers as part of DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 650 the collective-bargaining unit of our production and maintenance employees. WE WILL restore the job classification of die engineer. WE WILL return Michael Petroraio to his former job of die engineer and pay him for any lost wages or benefits plus interest. WE WILL restore the die engineer position of Richard Carey and pay him for any lost wages or benefits plus interest. O.G.S. TECHNOLOGIES, INC. Jennifer F. Dease, Esq. and Terri A. Craig, Esq., for the Gen- eral Counsel. Joseph B. Summa, Esq. and William A. Ryan, Esq. (Summa & Ryan), of Waterbury, Connecticut, for the Respondent. Thomas Meiklejohn, Esq. (Livingston, Adler, Pulda, Meiklejohn & Kelly), of Hartford, Connecticut, for the Charging Party. DECISION STATEMENT OF THE CASE CLIFFORD H. ANDERSON, Administrative Law Judge. These cases (Cases 34–CA–9336 and 34–CA–9458) came before me for decision based on the following: On July 12, 2000, the United Automobile, Aerospace & Ag- ricultural Workers of America Local 376, AFL–CIO (the Charging Party or the Union) filed a charge with Region 34 of the National Labor Relations Board (the Board) docketed as Case 34–CA–9336 against O.G.S. Technologies, Inc. (the Re- spondent).1 On October 16, 2000, the Charging Party filed a second charge against the Respondent docketed as Case 34– CA–9458, which charge it amended on November 3, 2000. On August 31, 2001, the Regional Director for Region 34 is- sued an order consolidating cases, consolidated complaint and notice of hearing scheduling a hearing on the consolidated cas- es. Following the submission of a timely answer, the case came on to hearing before Administrative Law Judge Howard Edel- man on December 11, 2001, March 21 and September 5, 2002. On November 29, 2002, Judge Edelman issued his decision in the matter. Exceptions to the judge’s decision placed the matter before the Board. The Board, on May 31, 2006, in a decision reported at 347 NLRB 299 (2006) (the remand order), set aside Judge Edelman’s decision and remanded the matter to Chief Administrative Law Judge Giannasi for reassignment to a different administrative law judge. The Board in its remand order issued the following instruction to the new judge receiv- ing the remand: The judge shall review the record and issue a reasoned decision.3 We will not order a hearing de novo because our review of the record satisfies us that Judge Edelman conducted the hearing itself properly. 1 The Respondent is also referred to as OGS in correspondence be- tween the parties quoted in part below. ORDER IT IS ORDERED that the administrative law judge’s deci- sion of November 29, 2002, is set aside. IT IS FURTHER ORDERED that this case is remanded to the chief administrative law judge for reassignment to a different administrative law judge who shall review the record of this matter and prepare and serve on the parties a decision containing findings of fact, conclusions of law, and recommendations based on the evidence received. Following service of such decision on the parties, the pro- visions of Section 102.46 of the Board’s Rules and Regu- lations shall apply. ________________ 3 The new judge may rely on Judge Edelman’s demeanor- based credibility determinations unless they are inconsistent with the weight of the evidence. If inconsistent with the weight of the evidence, the new judge may seek to resolve such conflicts by considering “the weight of the respective evidence, established or admitted facts, inherent probabilities, and reasonable inferences which may be drawn from the record as a whole.” RC Aluminum Industries, Inc., 343 NLRB 939, 939 fn. 2 (2004), quoting Daikichi Sushi, 335 NLRB 622, 623 (2001) (internal quotation marks and citations omitted). Alternatively, the new judge may, in his/her discretion, reconvene the hearing and recall witnesses for further testimony. In doing so, the new judge will have the authority to make his/her own demeanor-based credibility find- ings. On June 8, 2006, Chief Administrative Law Judge Robert Giannasi issued an order reassigning case transferring the mat- ter to me. FINDINGS OF FACT On the entire record herein, including helpful briefs from the Respondent and the General Counsel,2 I make the following3 I. JURISDICTION The complaint alleges, the answer admits, and I find the Re- spondent is a Connecticut corporation with an office and place of business in Waterbury, Connecticut, where since January 2001, it has been engaged in the manufacture and nonretail sale of brass buttons. During the 12-month period ending July 31, 2001, the Re- spondent purchased and received at its Waterbury operations goods valued in excess of $50,000 directly from points outside the State of Connecticut. 2 The record on remand did not contain the posthearing briefs of the parties to the original trial judge. On June 16, 2006, in a conference call with the parties, I set July 21, 2006, as the due date for submission of briefs on remand and provided the parties the option to submit their original brief to the original judge and/or a new brief. The General Counsel filed a new brief on remand and the Respondent filed a sub- stantial updated position letter. Each also submitted its original briefs. The record also contains the parties’ original exceptions and briefs to the Board. 3 As a result of the pleadings, the joint exhibits and stipulations of counsel at the trial, there were few disputes of fact regarding collateral matters. Where not otherwise noted, the findings herein are based on the pleadings, the stipulations of counsel, and/or unchallenged credible evidence. O.G.S. TECHNOLOGIES, INC. 651 Based on the above, there is no dispute and I find the Re- spondent is and has been at all times material an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The record establishes, there is no dispute, and I find the Un- ion is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Allegations The complaint, as amended, alleges and the answer, as amended, denies that the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by: • In January 2000 and at all times thereafter failing and refusing to recognize or bargain with the Union as the representative of its die maker employees; • On or about October 6, 2000, without notice to the Union and without affording the Union an opportuni- ty to bargain with the Respondent with respect to the following conduct and the effects of the conduct: o laying off die maker Michael Petroraio, and o sub-contracting all die maker work, o changing the job duties of its die makers or eliminating its die maker positions. The Respondent contends that it was at no time obligated to bargain with the Union respecting its die maker employees or die making operations and that the Union at relevant times failed and refused to bargain in good faith with the Respondent. B. Background4 For many years the Waterbury Companies Inc., d/b/a Water- bury Button Company,5 operated a facility engaged in the man- ufacture and nonretail sale and distribution of brass buttons. The Union had for some time represented a unit of some 45 of that entity’s production and maintenance employees.6 Water- bury Companies, Inc. and the Charging Party had a collective- bargaining agreement in place covering the unit employees, effective by its terms from April 1997 through March 12, 2000. The unit description in the contract stated: All production and maintenance employees at its Water- bury, Connecticut division, including receiving, weigh- ing and stock clerks, but excluding office and profes- 4 The findings in this section are based on the written stipulations of the parties received into evidence at the hearing before Judge Edelman as Jt. Exh. 1(a). 5 In acquiring the assets and operations of Waterbury Button Com- pany, the Respondent also used that business name. To avoid confu- sion herein, the name Waterbury Button Company is used exclusively to refer to the former entity and the name OGS Technologies, or the Respondent, is used in reference to the new entity. 6 The recognition clause of the final contract referred to an earlier Board certification of representative without further specific identifica- tion of the date of certification. sional employees, guards, drafters, drafting, tool room and billing clerks, nurse, laboratory employees, expedit- ers, timekeepers, supervisors, factory supervisors, and all other supervisors as defined in Section 2(11) of the Na- tional Labor Relations Act, as amended. In the fall of 1999, Mike Salamone became interested in ac- quiring Waterbury Button Company and formed the Respond- ent on or about December 20, 1999, for the purpose of purchas- ing the assets of Waterbury Button Company. Salamone was a 60-percent shareholder and president of the Respondent. Salva- tore Geraci, until the time of the acquisition the plant manager of the Waterbury Button Company, was a 20-percent share- holder of the Respondent and the executive vice president of operations. Robert J. Oppici, until the time of the acquisition the sales manager of the Waterbury Button Company, was a 20- percent shareholder of the Respondent and the executive vice president of sales. During this preparatory period the Respondent arranged fi- nancing, conducted negotiations to purchase the Waterbury Button Company assets, prepared financial models, employee policies, employee handbooks, job descriptions, pay rate rang- es, affirmative action plans, and benefit programs. During the period January 16–22, 2000, the Respondent ran advertisements for potential employees. On January 21, 2000, the Respondent purchased the assets of Waterbury Button Company from Waterbury Companies, Inc., including all accounts receivable, inventory, tooling, fixtures, machinery, equipment, technical data rights, patents, trade- marks, trade names, literature, plates, negatives, films, price lists, customer lists, customer history files, vendor lists, open customer purchase orders, open contracts, open vendor pur- chase orders, display booths, office equipment, computers, vehicles, shop supplies, products, product lines, and distributor agreements. On January 22 and 23, 2000, Salamone interviewed a num- ber of applicants for positions at the acquired operation. The applicants included a large number of former Waterbury Button employees. Each former Waterbury Button employee was also independently evaluated by Geraci and Oppici. During the applicant interviews, Salamone reviewed with each applicant the nature of cell manufacturing, the appropriate job descrip- tion, expected duties, and generally compensation and benefits. Former Waterbury Button employees Michael Petroraio and Richard Carey were among those interviewed. At the conclusion of the day on January 23, 2000, Salamone, based on the applications, interviews and evaluations of the applicants, took the decision to offer certain applicants em- ployment with the Respondent with the commencement of operations the following day. On January 24, 2000, the Re- spondent began operations with 20 production and maintenance employees, 19 of whom were former Waterbury Button Com- pany employees from the represented production and mainte- nance unit. At all relevant times thereafter, the Respondent has continued to operate with substantially the same number of production and maintenance employees. The Respondent hired former Waterbury Button Company Production Control Manager Nick Longo as its inventory con- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 652 trol manager and Waterbury Button Company Engineering Manager Tom Wirges as its engineering manager. On January 31, 2000, the Respondent hired former Waterbury Button Company master die cutters Michael Petroraio and Richard Carey as “Die Engineers.” The Respondent utilizes a “cell manufacturing concept” in its production process compared to a more traditional process as used by Waterbury Button Company. Thus, where Water- bury Button Company maintained approximately 49 production and maintenance job classifications, the Respondent maintains 9 production and maintenance job classifications. Waterbury Button Company operated with approximately 45 employees employed in the production and maintenance bargaining unit, the Respondent operates with approximately 20 production and maintenance employees. Waterbury Button Company main- tained approximately 16 production and maintenance depart- ments, the Respondent combined those departments into four work “cells,” three of which are related to manufacturing. B. Events By letter dated January 26, 2000, Art Muzzicato, Interna- tional representative of the United Auto Workers writing on behalf of the Charging Party, wrote Joseph Summa, counsel for the Respondent. The letter asserted that the Charging Party had learned that Summa’s client had purchased the Waterbury Companies operation, sought an immediate meeting to discuss the terms and conditions of employment of Waterbury Compa- nies employees and sought certain information and documenta- tion regarding the takeover. Following an exchange of phone calls, a meeting was held on February 10, 2000, between Muzzicato, Charging Party President Russ See and Respondent’s two counsels, Summa and William Ryan, at the UAW’s regional center in Farming- ton. Summa testified that the meeting involved heated accusa- tions by Ryan that the Union had a contract with Waterbury and that Summa and his client were bound to it and must rehire the laid off employees. Ryan angrily stated in Summa’s recollec- tion: “[T]ake this contract back.” Summa and Ryan responded that their clients were not the former entity, had simply pur- chased Waterbury’s assets and that the contract did not bind their new enterprise. After the exchange of positions the meet- ing ended. Muzzicato testified that Charging Party President See told the Respondent agents that the Union felt that the new and the old companies were in “cahoots” because Sal Geraci, the for- mer plant manager, was also a principal and high official in the Respondent. Summa wrote a letter dated, February 18, 2000, to Muzzica- to which clarified the Respondent’s name, address, and the nature of the Respondent’s acquisition. It continued: In your letter you ask that a meeting be scheduled to discuss the terms and condition of the Waterbury Compa- ny employees. As stated above, OGS now owns the assets of the old Waterbury Button Company. Further, while OGS has hired some past Waterbury Company employees, to date, it has not yet hired its regular compliment of em- ployees. Thus, there is a question as to whether OGS has a bargaining obligation with the UAW. However, it is my understanding, that when our full compliment of employ- ees is hired the numbers will be such that it would trigger a bargaining obligation. Therefore I am willing to meet with you on behalf of OGS to discuss your position with regard to OGS’s employees. Muzzicato testified to essentially the same events. On March 2, 2000, Counsel Summa and Ryan met with Muzzicato and Charging Party Business Agent Carmen Burn- ham at the UAW Farmington, Connecticut Regional headquar- ters. There was no agreement on whether or not See attended the meeting. The Respondent agreed to recognize the Union as the representative of the Respondent’s production and mainte- nance employees and offered to sit down and bargain a con- tract. Summa testified that President See took umbrage, assert- ing that a contract existed and that the Respondent should acknowledge it and hire back all the laid-off employees. Sum- ma reiterated his position that “it’s not our obligation and we’re willing to bargain.” Summa recalled Muzzicato said that the Charging Party believed the Respondent was an alter ego of Waterbury Button and was bound to the contract and that the Union was having trouble obtaining information from Water- bury Button about the change. Summa testified: [The Union] said that they could not get any information from Waterbury Companies and that they had no way to evaluate whether or not we were an alter ego. I offered to give them any information that we had available. I had already given them a list of employees and the policy book and that they asked specifically if they could get a copy of the sales agree- ment. I said I would check with my principles. Art said that would send out a letter what they were looking for and I said send it to me and I’ll deal with it. Later that day, March 2, 2000, See and Muzzicato wrote Summa a letter the first portion of which stated: Thank you for agreeing to recognize Local 376 as bar- gaining agent for the Waterbury Button employees. The Union is now attempting to determine whether OGS is ob- ligated to honor our Waterbury Button contract. I under- stand it to be your position that you do not have to honor the contract. To determine whether you are obligated to honor the contract, the Union is requesting information that it needs to determine whether OGS is an alter ego of the Water- bury Companies. The letter continued requesting various information and includ- ed an “Alter Ego Questionnaire” to be completed by the Re- spondent. On March 17, 2000, the Union filed a charge against the Re- spondent in Case 34–CA–9215, inter alia, alleging an alter ego relationship between the Respondent and Waterbury Button Company, challenging the Respondent’s omission to hire cer- tain of the employees of Waterbury Button and the Respond- ent’s failing to honor the terms of the Waterbury Button collec- tive-bargaining agreement. On March 21, 2000, Counsel Summa met with Muzzicato and Burnham at Summa’s office. Summa testified Ryan was also present. The Respondent gave the Union requested mate- O.G.S. TECHNOLOGIES, INC. 653 rials including the Respondent’s job descriptions and arranged to meet again the following day to give the Union time to ab- sorb and ask questions about the material provided and to pro- vide additional information. On March 22, 2000, the parties met again. Muzzicato re- called some of the events testified to by Summa as occurring on the previous day. He recalled, however , that on the afternoon of March 22, 2000, he received the Respondent’s job descrip- tions. He testified further: After those job descriptions were presented to me, I asked Joe [Summa] about the recognition clause if they were willing to sign the recognition clause and he ex- plained to me the first time I heard it was that day that there’s two classifications that he wants out of the unit . . . The two classifications I thought he said at the time were the die and waste engineers the die and waste treat- ment engineers that he wanted out of the unit. He said they are management jobs and they are more into the man- agement area and he said—I said no I didn’t want them out. . . . And Joe told me he said well you can take them out and try to negotiate them back in and conversely I thought that would become a mandatory subject and I took the other position to leave them in and you try to bargain them out and he said no and we got off on that position. I asked him—after that I asked him for the job descriptions of those—of the jobs that he wanted to take out of the unit because I wanted to verify if they were really management jobs or bargaining unit jobs. Q. So you asked him for a copy of those? A. Yes. Q. And did you ever receive a copy of those? A. The only time that I saw them was at the trial here. Q. So back in December of 2001? A. That’s when we were at trial. Q. Okay. Why did you ask for a copy of those job de- scriptions? A. Basically I wanted to see if they really were man- agement jobs or bargaining unit jobs. Q. Now was anything else said at that meeting? A. Yes. We started talking about the operations and Joe didn’t understand too much about the operations. No- body from management from the operation unit was there. So I asked him if he would bring Salamone to the next meeting? Q. Salamone? A. Salamone who was the principle owner at the next meeting to see how the operations is going to do. He did agree and gave me a date. Summa testified that after the specific language of a confi- dentiality agreement was negotiated, signed and the Respond- ent’s sales agreement provided to the Charging Party, the par- ties started discussing the Respondent’s provided job descrip- tions. The Charging Party’s agents asked about the duties of the individual positions and associated wage rates. The conver- sation turned to the job description: master die cutter. See not- ed that the former position of “die engineer” was not included in the unit. The Respondent’s agents explained that the posi- tion of master die cutter was in the unit, but that that position had not been filled. Muzzicato responded that he was aware that die cutters in the former unit had been hired by the Re- spondent, but were not being treated as in the unit. Summa testified he explained to the Charging Party agents: I said Art [Muzzicato] these are different positions. The primary purpose of this position the die engineer posi- tion is to go out and find new technology to make dies that the company believes that it cannot go forward using the technology that is hundreds of years old. They need to go to modern technology and that that was the primary func- tion of these die engineers and that’s why we didn’t put them in the bargaining unit. . . . . I said that—I pointed out that there was a die cutter job description and depending on where the evaluation of the technology came out that may be filled in the future. [Muzzicato] said—I said look we’re willing to bargain about this. We’ve got to negotiate a contract so we could—we will talk about this issue of whether they are in or out, what their duties are and we will put it on the table with everything else. He then said well are you willing to take the old contract and rehire all of the employees. I said absolutely not we will go out of business. He said well then we really have nothing to talk about and I said well then we will have to let the N.L.R.B. decide and that really was the end of the meeting. Muzzicato testified the meeting ended with the expectation they were to meet again and testified categorically that he never told the Respondent’s agents in this meeting or any other time that the Union had nothing to discuss with them unless they assumed the former entity’s contract. Muzzicato added that the Union’s counsel had told the Union negotiators that it was un- likely the Respondent would be found an alter ego of the for- mer entity unless the principal owners were the same and that when Muzzicato saw the sales agreement on March 22, 2000, he realized that the Respondent would not be found to be an alter ego of the former enterprise and therefore would also not be held to be bound to the old contract. Muzzicato did not con- cede this argument to the Respondent’s agents at that time however. The parties disagreed respecting subsequent events. Summa testified that he received nothing in writing and no phone communications from the Union seeking further bargaining. He testified that three or four times in the following period, every few months: Art [Muzzicato] and I would run into each other at var- ious other clients and one of us would say something about when we’re going to get together. The response I normally got was are you willing to sign the contract. . . . I would say of course not and that would be the end of it. Muzzicato testified that while he did not request bargaining in writing or by phone he did speak to Summa three or four times and asked him to meet with the Union and to bring Sala- mone to such a meeting. He reiterated that he did not tell Sum- ma that the Respondent must adopt the former entity’s contract DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 654 and hire all its former employees, rather he just sought to bar- gain but was always told by Summa that he would have to get back to Muzzicato and never did so. The Union called Mark Liburdi, president of UAW Local 712, who testified that on at least two occasions in his presence during the period May to September 2000, during meetings on other business with Sum- ma and Muzzicato, he specifically recalled that Muzzicato asked Summa about meeting with him regarding the Respond- ent. He recalled that Summa on each occasion told Muzzicato only that he would get back to him. On October 6, 2000, Michael Petroraio was laid off and Richard Carey was transferred to the position of product devel- opment technician, a management position the job description of which is dated October 6, 2000. The Union was neither noti- fied respecting nor offered an opportunity to bargain concern- ing the Respondent’s decision to take these actions nor afforded an opportunity to bargain respecting the effects of these actions. The Union’s alter ego charge with the Board was withdrawn in August 2001 and the instant complaint issued that same month. A meeting was arranged and held on October 2, 2001, at the UAW regional headquarters between Muzzicato, See, Summa, Ryan, and Michael Salamone. Negotiations were still- born when the parties could not agree on the recognition clause of any possible contract. C. The Duties of Michael Petroraio and Richard Carey Michael Petroraio and Richard Carey had worked for the Waterbury Button Company for many years, serving finally with that employer as the two master die cutters in the bargain- ing unit. The Waterbury Button Company’s job description for the master die-cutter position is as follows: Perform all required duties to make master hubs and working dies, for embossing designs on product. Requires an intensive knowledge of cutting dies and engraving us- ing had tools, pantographs (2-D & 3D), line engravings machines, heat treating equipment, drop hammers and oth- er equipment related to creation of dies. Ability to cut dies using CAD/CAM equipment, utilizing SmartCAM or sim- ilar type programming knowledge. Develop, alter, repair and maintain highly intricate embossing tools. Work from prints, models, specifica- tions, sketches, or oral instructions to law out work. Visu- alize finished jobs to make necessary calculations to de- termine metal flow and other variables. Maintain extreme- ly close tolerances in order to cut (negative/positive) dies and hubs, or to make design changes. Instruct and set up master templates on engraving or other embossing equip- ments. Analyze damaged tools to recommend corrective actions. Maintain storage of master hubs. Detect and report defective materials, improper opera- tion, and other unusual condition to proper supervision. Keep work area and equipment in a clear orderly condi- tion. Keep machines properly lubricated. Follow pre- scribed OSHA and DEP regulations in addition to Compa- ny policy with regard to personal safety, the safety of oth- ers, and the proper handling or regulated materials. Waterbury Button Company also had a position of die cutter which, while similar, was not so skilled and did not involve the analytical skills or the operation of the CAD/CAM SmartCAM equipment required of master level die cutters. The Respondent’s president, Michael Salamone, testified that in consolidating and reforming the job descriptions of Wa- terbury Button for the Respondent’s operations he prepared new job descriptions for the die-cutter position and die engi- neering position. The die engineering position was labeled an “office/management job description” and three of the descrip- tion’s five paragraphs tracked closely the three paragraphs of the Waterbury Button Company’s master die-cutter position, quoted above, with the addition of two extra paragraphs within the description: Seek out new methods through seminars, trade litera- ture, internet, contacts in the industry, etc. that could be incorporated into the work-cell that either reduces costs, improves the quality or significantly reduces the lead time required to produce working tools from concept to com- pletion. Work may require day trips to consult with ven- dors of equipment, supplied, or processes. Through journals, seminars, Internet, etc. keep abreast of new products and process that could be incorporated in- to the area that either lowers manufacturing costs, im- proves the quality, or offers something new and/ or differ- ent that is beneficial to, or increases company revenue. Both Petroraio and Carey were interviewed on January 30 and 31, 2000, for the die engineering position, by Salamone who made it clear that the position was a management not bar- gaining unit position, but that wages would be generally the same as they had received under their former employment. The two were also to receive the same health insurance benefits, life insurance benefits, disability, and 401(k) plan that the produc- tion and maintenance and all other employees would receive. There were some differences from their previous employ- ment. While wages and overtime was essentially equivalent, as salaried employees they would be paid for missed days. They would receive an hour for lunch as opposed to the half hour lunch provided production employees. The two were also to be provided with internet access, telephone voice mail, and a mail box to receive correspondence. Petroraio testified to his work experience with Waterbury Button working with Carey and his subsequent experience with Carey at the same location under the Respondent. He testified that when he started with the Respondent he was told simply to resume working on the job he had been working on under Wa- terbury Button when he had been laid off. He was at the same work bench, under the same supervisor, Tom Wirges. Petroraio testified: Q. And can you describe working for OGS as a die en- gineer, what your duties would consist of in a typical day? What you would do. A. Well, they didn’t change much from when it was Waterbury Button because they were looking to get the jobs out that they were late. We did the tool repair, made new forces, new dies, kept the machining centers running. Q. Did that change after you first started? Or . . . . O.G.S. TECHNOLOGIES, INC. 655 A. It changed a little bit but not much. Q. How did it change? A. We. Well, I spent a little bit of time on the internet looking into different processes as far as an EDM and dif- ferent software packages. Q. What’s an EDM? A. Electrical Discharge Machine. We use it to make forces. Q. And so, you said you performed some research on how on that process, on the EDM machine? A. Yes. Q. And you said you spent some time on the internet researching software packages? A. Yes. Q. What would they be for? A. For the machining centers you use to cut the dies. Q. Okay. Can you give me your best estimate of what percentage of your daily duties were spent, the time in a typical day, was spent doing internet research for these purposes? A. It would be about two percent. Petroraio testified that as the Respondent’s employee he con- tinued to interact with production and maintenance employees. He also used the cafeteria for breaks and lunch until September 2000 when he and Carey were instructed by their supervisor not to spend time with the hourly employees: “We were manage- ment people and we shouldn’t be doing that.” He did talk with venders, attended a trade show, and passed along sales repre- sentative reports, but had done similar things when with Water- bury Button. He could inform his supervisor if equipment “looked good,” but his recommendations based on the research he had undertaken had never been followed. In a characteriza- tion proposed by the counsel for the Respondent during his cross-examination, the Respondent’s operation as compared to the former process under Waterbury Button did not seem to be much different in his work area. Carey also testified respecting his duties and responsibilities as an employee of the Respondent. He described a position much more directed toward searching out technology and co- operating with other employees such as graphic art- ist/programmer Heidi Gomez Kitchin. After his direct exami- nation by counsel for the Respondent concluded, during the beginning of cross-examination, Carey testified that he had left the die engineer position at the time Petroraio was laid off. That position was no longer staffed after October 6, 2000, and he had became the product development technician, a manage- ment position heavily centered on new product and processing research and development on that date. Carey testified that until Petroraio was laid off Petroraio was the primary interface with management and supervision. It was only after Petroraio’s layoff, Carey testified, that he worked more closely with supervision on developing new technology and determining subcontracting by vendor sourcing and budget- ing. D. Analysis and Conclusions 1. Credibility determinations The great bulk of the record is free of disputed testimonial evidence. Two areas however are important to the resolution of the allegations: the testimony of Petroraio and Carey respect- ing their work for the Respondent and the testimony of Muzzi- cato and Summa respecting their negotiations and conversa- tions on behalf of their clients. These disputed areas are treated separately below. a. The Board’s instructions and the parties’ positions on credi- bility determinations The Board in its Order Remanding Proceedings, 347 NLRB 299, 299 fn. 3 (2006), provided: The new judge may rely on Judge Edelman’s demean- or-based credibility determinations unless they are incon- sistent with the weight of the evidence. If inconsistent with the weight of the evidence, the new judge may seek to re- solve such conflicts by considering “the weight of the re- spective evidence, established or admitted facts, inherent probabilities, and reasonable inferences which may be drawn from the record as a whole.” RC Aluminum Indus- tries, Inc., 343 NLRB 939, 939 fn. 2 (2004), quoting Daikichi Sushi, 335 NLRB 622, 623 (2001) (internal quo- tation marks and citations omitted). Alternatively, the new judge may, in his/her discretion, reconvene the hearing and recall witnesses for further testimony. In doing so, the new judge will have the authority to make his/her own demeanor-based credibility findings. The General Counsel and the Respondent directed substan- tial portions of their filings with me to the proper treatment of Judge Edelman’s credibility findings. The General Counsel argued that Judge Edelman’s credibility determinations were his own, that the weight of evidence requires that the credibility resolutions remain undisturbed, that the passage of time makes the recall of witnesses impractical and their testimony unrelia- ble and, finally, that the equities involved demand that the mat- ter not be delayed by reconvening a hearing. The Respondent argues that the original decision herein was tainted as the Board found in its remanding order and that the credibility resolutions in the original decision are unsustainable for that reason and further because they “strain credulity.” Thus they should be disregarded. To the extent the parties’ arguments regarding the original decision’s credibility resolutions seek to expand, contract or change the Board’s specific instructions on remand, quoted in part above, they must fail. The Board’s instructions to me are not suggestions they are commands. In that light, I have care- fully considered the instructions of the Board to me to consider whether or not to rely on those original credibility resolutions which are not inconsistent with the weight of evidence. I have made such a case-by-case determination based on the record as a whole and did not simply consider all the credibility findings of Judge Edelman as an undivided whole and whether or not they should be automatically accepted or rejected as a totality. As set forth in detail below, I have specifically followed the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 656 Board’s quoted instructions in making individual credibility determinations herein. In each such determination, as is set further in specific instances below, I have considered the de- meanor-based credibility determinations of Judge Edelman as reflected in his decision by considering the weight of the re- spective evidence, established or admitted facts, inherent prob- abilities, and reasonable inferences which may be drawn from the record as a whole. Despite my consideration of the various credibility resolutions were taken independently of one another, in no case have I found Judge Edelman’s demeanor-based cred- ibility determinations inconsistent with the weight of the evi- dence. The Board’s instructions further provided me with the dis- cretion to reconvene the hearing and recall witnesses for further testimony to make my own demeanor-based credibility findings if I found it necessary and appropriate to do so. On this record, respecting Judge Edelman’s demeanor-based credibility deter- minations, I find there is simply no need to do so. Rather, ex- ercising the discretion granted me by the Board, I find it is ap- propriate to, and I shall, rely on each of Judge Edelman’s de- meanor-based credibility determinations as set forth in his deci- sion. The great bulk of the record is free of disputed testimonial evidence. Two areas however are important to the resolution of the allegations: the testimony of Petroraio and Carey respecting their work for the Respondent and the testimony of Muzzicato and Summa respecting their discussions and conversations on behalf of their clients. These important areas of dispute are treated separately below and the arguments of the parties have been considered and applied within the scope of the Board’s instructions. b. Muzzicato–Summa credibility determination The testimony of Muzzicato and Summa respecting their meetings and conversations is set forth in part above. It is high- ly relevant to the issues herein and at substantial variance. Each side advanced the version of events of its own witness and based its legal arguments largely on its own witnesses’ facts. The Respondent notes that Judge Edelman initially rejected the Respondent’s offer of evidence respecting certain bargain- ing and that he thereafter had a preconceived attitude that pre- cluded a fair consideration of the conflicting evidence, ulti- mately crediting the farfetched and improbable testimony of Muzzicato over the more plausible testimony of Summa. The General Counsel urges that the credibility resolution at issue are demeanor based and were independently arrived at, free from the other matters which generated the remand. Judge Edelman, in his decision at 347 NLRB at 306, found: At this point there are certain inconsistencies between Muzzicato’s testimony and Summa’s testimony. Based on comparisons in demeanor, Muzzicato’s contemporaneous notes, and consistent with the undisputed facts I find Muz- zicato a more credible witness. Therefore, where there are inconsistencies in testimony, I credit Muzzicato. Beyond the quoted summary of his credibility resolution of Muzzicato over Summa, Judge Edelman discussed various areas of factual conflict between the two, consistently finding Muzzicato’s testimony the more credible and ultimately based his relevant findings thereon. As noted above, Judge Edelman’s credibility resolutions were not rejected by the Board as such. Further the Board not- ed in its remand order: “We will not order a hearing de novo because our review of the record satisfies us that Judge Edel- man conducted the hearing itself properly.” I have considered the testimony of Muzzicato and Summa in the light of the rec- ord as a whole and the arguments of the parties in applying the Board’s instructions to this credibility resolution. Applying that standard here, I cannot find that Judge Edelman’s credibil- ity resolutions favoring Muzzicato over Summa is inconsistent with the weight of the evidence. In reaching this determination I have considered in the balance, as the Board instructs, the weight of the respective evidence, established or admitted facts, inherent probabilities, and reasonable inferences which may be drawn from the record as a whole. Nor do I find it is necessary or desirable to reconvene the hearing to consider the testimony in disputed areas de novo. Judge Edelman made detailed findings respecting the de- meanor-based credibility resolution of the Muzzicato-Summa testimony, which I have found above are not inconsistent with the weight of the evidence. I find and conclude that it is appro- priate to rely on them in resolving the issues herein. I therefore credit the testimony of Muzzicato over that of Summa where the two differ. The version of events of Muzzicato as set forth in part above is credited over the version of Summa also set forth in part above. c. Petroraio–Carey credibility determination Petroraio and Carey were the only two die engineers for the Respondent at relevant times and gave important testimony respecting their duties and responsibilities. Their testimony respecting their job duties was at substantial variance although it was not altogether clear that Carey’s testimony respecting what he did for the Respondent was directed to his period of service as a die engineer rather than in a subsequently held position. Counsel for the Respondent contended at the hearing that Petroraio’s testimony respecting his activities as an employee of the Respondent was not “100% truthful in terms of what he did or what he is saying he did versus what he actually did.” Similarly in its position statement the Respondent challenged Judge Edelman’s crediting in its entirety the testimony of Petro- raio arguing: “in so doing he ignored inconsistencies in such testimony and positions that strained credulity.” (The Respond- ent’s position statement at fn. 1 p. 2.) The Respondent rather favored the testimony of Carey and argues his credibility over Petroraio. The Charging Party and the General Counsel chal- lenged that view and advanced the testimony of Petroraio over that of Carey. Judge Edelman, in his decision at id. at 301, found: Where there are any inconsistencies between Carey and Petroraio’s testimony, I credit Petroraio. I was gener- ally impressed with Petroraio’s demeanor. His testimony was detailed, and consistent during both direct and cross- examination. O.G.S. TECHNOLOGIES, INC. 657 Carey, on the other hand, was at times vague and in- consistent. For example, although Carey initially testified on direct examination that he spent approximately 50 per- cent of his work time engaged in seeking out new technol- ogies, it became clear on cross-examination that Carey’s testimony related the time period after Petroraio was laid off and after Carey was inserted into the new position of “Product Development Technician.” Beyond the quoted summary of his credibility resolution of Petroraio over Carey, Judge Edelman discussed the various areas of factual conflict between the two finding Petroraio’s testimony the more credible and based his findings thereon. Relying on the Board’s instructions as quoted and discussed above, and essentially for the same reasons as set forth above, I find that Judge Edelman’s findings respecting the demeanor- based credibility resolution of the Petroraio-Carey testimony are not inconsistent with the weight of the evidence and I rely on them. I therefore credit the testimony of Petroraio over that of Carey where the two differ. The version of events of Petro- raio as set forth in part above is credited over the version of Carey also set forth in part above. The fact that Carey had had a job change which was not made clear during the trial before he was far into his testimony, so that it was difficult to ascertain with precision which job he had addressed in certain elements of his earlier testimony, was a relevant fact adding support to the findings made by Judge Edelman, which I here adopt. 2. The legal arguments of the parties a. Basic areas of agreement In order to focus on the issues dividing the parties, it is ini- tially appropriate to set forth the general areas of agreement of the parties. The parties agree that the Respondent is a succes- sor to the former Waterbury Button Company within the mean- ing of Fall River Dying Corp. v NLRB, 482 U.S. 27 (1987). The parties further agree that the Respondent, on March 2, 2000, recognized the Union as the representative of a produc- tion and maintenance employee unit, but had made it clear to the Union by March 22, 2000, that the recognition of the Un- ion as representative of the production and maintenance unit did not include recognition within that bargaining unit of its two employees in the position of die engineer, Michael Petro- raio and Richard Carey, who had been employed in the former entities production and maintenance bargaining unit as master die cutters. Finally, the parties agree that the Union asserted the position the two employees were by rights in the bargaining unit. The parties agree that an employer who succeeds as the Re- spondent did herein to the operations of another employer is not bound to simply continue the operations of its predecessor, but may before it has incurred any bargaining obligation change its technology and redo the number and type of job positions it utilizes without hindrance under the Act. It follows that if a job position or positions, formerly within the predecessor employ- ers bargaining unit, has been so changed that it is no longer appropriately part of such a bargaining unit, then there is no obligation on the part of the new or successor employer to in- clude that position or positions within the new unit. Converse- ly, and again without apparent dispute between the parties, if a job position or positions, is carried forward unchanged, or changed but still appropriately within the appropriate collec- tive-bargaining unit, the successor employee must include its employees in those positions in the bargaining unit for which it has granted union recognition. Put more generally, the new employer may change terms and conditions of employment, but it does not have license simply to rely on its unsupported pref- erences or fictitious job content labeling, rather than actual job content, to withhold certain job positions from the recognized unit. b. Basic areas of disagreement between the parties Three basic areas of dispute divide the parties. The parties strongly disagree on the appropriate composition of the bar- gaining unit at the time of initial recognition. The Respondent contends that the unit did not properly include the position of die engineer nor the two individuals who occupied that posi- tion. The General Counsel and the Charging Party argue that that the die engineer position and the two individuals at issue were properly indeed necessarily in the successor bargaining unit when the predecessor ended its operations and should have been included in the successor’s production and maintenance bargaining unit when the Respondent took over and resumed operations. The parties equally dispute whether or not the Respondent had an obligation to bargain over the subcontracting out of die work, the elimination of the position of die engineer held by Petroraio and his layoff as well as the change in the job content of die engineer Carey. The Respondent argues initially, as noted above, that the position and individuals were never properly within the bargaining unit and therefore the Respond- ent never had any obligation whatsoever to bargain respecting them. Further, the Respondent argues that the subcontracting and the die engineer position’s discontinuance as to Petroraio and job content change of Carey were inextricably part of a decision by the Respondent to utilize high technology subcon- tractors in its die making operation—a matter that lay at the core of its business enterprise. Thus, the Respondent argues under First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), it had no obligation to bargain respecting this change in all events. The General Counsel and the Charging Party simply reject the Respondent’s First National Mainte- nance theory and argue the record facts do not support such a theory. Finally, the parties are in dispute over the consequences of the Union’s bargaining during the relevant period and the ap- propriate remedy which should be involved given all the rele- vant circumstances. Thus, the Respondent argues the Union took an all or nothing position during bargaining which, in requiring the Respondent to adopt the former employer’s col- lective-bargaining agreement as a predicate to any further nego- tiation, prevented any good-faith bargaining on the matters at issue to occur. And the Respondent argues that the remedy sought by the General Counsel herein is inappropriate to any possible finding of a violation. The General Counsel and the Charging Party dispute these contentions on their facts. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 658 3. Did the Respondent have an initial obligation to include the die engineer position and the two die engineer employees in the recognized unit There is no question and I find that the unit placement of the die engineer position and the two die engineers involved, Petro- raio and Carey, is one of fact rather than law. A Fall River successor employer has no obligation to carry forward the unit structure of the predecessor employer and may rather, if not for impermissible reasons, add, subtract, rearrange, or transmute its employment complement including the bargaining unit or units of the previous employer. Such a successor employer, howev- er, remains subject to the normal Board statutory and decisional law respecting collective-bargaining unit inclusion and exclu- sion. No employer may simply by fiat include or exclude posi- tions or individuals in a bargaining unit based on whim or wish independent of determinative facts relevant to such unit place- ment. The Respondent’s argument as to this aspect of the case has several particulars. First counsel challenges Judge Edelman’s credibility findings in their entirety and urges I not rely on any of his findings.7 The General Counsel disagrees particularly as to those findings favorable to the General Counsel’s case. As noted above, I have carefully considered the credibility findings of Judge Edelman consistent with the Board’s instructions. Applying those instructions I found Judge Edelman’s credibil- ity resolutions as set forth above to be consistent with the weight of evidence and I find it appropriate to reply on them and do so throughout this decision. As to this aspect of the Respondent’s arguments then, I reject it in its entirety. The Respondent does not limit its factual argument to an at- tack on Judge Edelman’s findings. Further, counsel for the Respondent argues that Judge Edelman failed to consider cer- tain factual elements relevant to the unit question. Thus, coun- sel argues, inter alia, that the Respondent made changes in the predecessor employer’s system, including the integration of the operations of the die engineers with Graphic Designer Kitchin. Further the die engineer positions were classified “salaried exempt” as opposed to “hourly” as production and main- taintence unit employees were described and paid. Further, the two employees had new reporting requirements, their own phone and voice mail, computers, and Internet access. The Respondent argues these facts establish, contrary to Judge Edelman’s findings, that the die engineers lacked a community of interest with the production and maintenance unit employees and should simply not be considered ever to have been part of the unit. I have considered the arguments of counsel on behalf of the Respondent as to the unit issue without relying on the legal analysis of Judge Edelman. I do not find that the facts empha- sized by the Respondent are sufficient to overcome the strong contrary facts presented. Further, given the specificity of Judge Edelman’s crediting of Petroraio’s detailed testimony over Carey as to what was done by the two at relevant times, I also do not find the evidence offered sufficiently credible to over- 7 Judge Edelman’s legal analysis was set aside by the Board in its remanding order and has not been considered or relied on herein. come the finding made by Judge Edelman in crediting Petroraio that, as to the die engineers, things under the Respondent were as they had been under the previous employer and that the ar- gued changes advanced by the Respondent were paper or in- choate, putative, descriptions of matters never put into place or practice at relevant times. Accordingly, I reject the argument of the Respondent and find that at the time of the initial recog- nition, and all times subsequent, the appropriate collective- bargaining unit should have included, and did in fact include, the die engineer position and the two die engineers.8 4. Was the Respondent’s obligation to include the die engineer position and die engineer employees in the recognized bargaining unit modified by subsequent events The Respondent argues that there was no doubt that the pre- decessor employer and its own operations initially involved subcontracting die engineer work and that the bulk of the dies used were made by outside vendors. As the Respondent’s op- erations continued, alternatives were rejected as impractical and a decision was taken by management: [T]hat the best way to improve the die making turnaround time was to cease doing business with hand-made die vendors and form relationships with the best of the subcontractors who had already invested in and perfected the laser and EDM equipment. (Respondent Counsel, June 29, 2006, Summary at 4.) Counsel for the Respondent argues this decision which includes changes in the extent of subcontracting, the layoff of die engi- neer Petroraio and the job change of Carey is in its totality ex- empt from a normal bargaining obligation. Thus, counsel ar- gues: Simply stated, OGS’s decision to utilize high-tech subcontractors in its die-making operations concerned a matter that lay at the core of its business enterprise. The Company had a fundamental right to choose its course without first having to seek agreement from the Union, and it exercised that right, making a completely lawful de- cision to subcontract. See First Maintenance Corp. v. Na- tional Labor Relations Board, 452 U.S. 666 [alternate cita- tions omitted.] (1981). (Respondent Counsel, June 29, 2006, Summary at 4.) The General Counsel challenges the argument of the Re- spondent asserting that the subcontracting/layoff decision of the Respondent was a traditional matter and mandatory subject of bargaining. Counsel for the General Counsel argues the Re- spondent’s claim of shelter under the First Maintenance doc- trine is inapposite under Torrington Industries, 307 NLRB 809 (1992). The General Counsel relies on Torrington’s holding, at 811: We simply find that the Respondent has not shown that its de- cision to replace them through subcontracting was dictated by 8 Counsel for the Respondent’s apparent offer to bargain about in- cluding the individuals is immaterial inasmuch as a bargaining over the unit is a nonmandatory subject of bargaining which was clearly rejected by the Charging Party at relevant times. O.G.S. TECHNOLOGIES, INC. 659 any core entrepreneurial reasons. No substantial commitment of capital or change in the scope of the business would be in- volved in negotiating with the Union over, for example, trans- ferring the truck, but not the driver, or making a ready-mix truck available to Marshall and Blair. Thus, whether or not the Respondent’s decision to replace them with nonunit personnel was motivated by labor costs in the strictest sense of that term, the fact remains that the decision clearly involved unit em- ployees’ terms of employment and it did not “lie at the core of entrepreneurial control.” (Stewart, J., concurring). [Fibre- board Corp. v. NLRB, 379 U.S. 203 (1964) at 223.] See also Winchell Co., 315 NLRB 526 (1994). I agree with the General Counsel that the Respondent did not demonstrate on this record that its decisions involved in the subcontracting and associated discontinuance of the die engi- neering position, the layoff of Petroraio and the job change of Carey, were at “the core of entrepreneurial control” and hence beyond the reach of traditional bargaining. The Respondent argues that at least some of its die work had always been subcontracted and a fundamental technological decision was taken to change the way such subcontracting work was done. While it is correct that the proportion of die subcon- tracting was changed. Simply put however, on the instant rec- ord, the Respondent simply failed to establish that these matters were at the core of entrepreneurial control as required by Tor- rington. It follows therefore that the Respondent bore a normal bar- gaining obligation respecting the matters at issue herein. 5. Was the Respondent’s obligation to bargain respecting the discontinuation of employment of die engineers, the layoff of Petroraio, and the transfer to a nonunit position of Carey altered by the Charging Party’s bargaining conduct There is no doubt that the Charging Party sought to have the Respondent adopt the predecessor employer’s contract. Be- yond that fact the testimonial versions of Charging Party nego- tiator Art Muzzicato and Respondent negotiator Joseph Summa different sharply regarding their later communications. Judge Edelman made extensive credibility resolutions respecting the conflicting testimony in these regards. I have considered that testimony in light of the Board’s instructions at some length as described above and, on the same basis as set forth above, have determined it is appropriate to accept the credibility resolutions of Judge Edelman. That being so and in reliance on those credibility resolutions as discussed above, I find that the Charging Party did not en- gage in any “take it or leave it” bargaining which would have reduced its rights and remedies under the Act in this matter. Rather I find that the Union sought on several occasions to bargain respecting the unit and the Respondent’s agent consist- ently avoided doing so. In making these findings I credit Muz- zicato over Summa. 6. Summary and conclusion I have found above that in early 2000 the Respondent was a successor employer to a production and maintenance collective- bargaining unit which properly included a die engineer position which was occupied by two individuals: Mike Petroraio and Rich Carey. Further I have found that the Respondent recog- nized the Charging Party Union on or about February 2000, as the representative of its unit of production and maintaintence employees, but specifically withheld granting the Union recog- nition of the die engineer position or of Mike Petroraio and Rich Carey in those positions. I find that this refusal to include them in the unit was not accepted or agreed to by the Union. I have further found that on or about October 6, 2000, with- out providing notice to or an opportunity to the Union to bar- gain about either the decision or its effects, the Respondent laid off die engineer Petroraio and changed the job title and job content of die engineer Carey. I find that the Respondent by engaging in the conduct set forth above violated its duty to recognize and bargain with the Union respecting all members of the appropriate collective- bargaining unit and therefore violated Section 8(a)(1) and (5) of the Act. I therefore sustain the complaint allegations alleging such conduct. REMEDY Having found that the Respondent violated the Act as set forth above, I shall order that it cease and desist therefrom and post remedial Board notices. As is traditional in unilateral change violation cases, I shall order that the Respondent restore the status quo ante and provide the Union with notice and an opportunity to bargain respecting any future proposed changes and their effects. The Respondent’s argument for special lesser remedies on this record is not persuasive. I shall also require the Respondent to offer to restore Mike Petroraio to his former position as die engineer and make him whole for any loss of wages and benefits he may have suffered by virtue of his wrongful layoff, with interest. Back pay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). On the basis of the above findings of fact and the record as a whole and Section 10(c) of the Act, I make the following CONCLUSIONS OF LAW 1. The Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Charging Party is, and has been at all relevant times, a labor organization within the meaning of Section 2(5) of the Act. 3. The Charging Party represents the Respondent’s employ- ees in the following collective-bargaining unit, which is appro- priate for bargaining within the meaning of Section 9 of the Act: All production and maintenance employees at its Waterbury, Connecticut division, including die engineers, receiving, weighing and stock clerks, but excluding office and profes- sional employees, guards, drafters, drafting, tool room and billing clerks, nurse, laboratory employees, expediters, time- keepers, supervisors, factory supervisors, and all other super- visors as defined in Section 2(11) of the National Labor Rela- tions Act, as amended. 4. The Respondent violated Section 8(a)(5) and (1) of the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 660 Act by failing and refusing to recognize and bargain with the Charging Party with respect to the production and main- taintence bargaining unit: (a) By at all times material failing and refusing to recognize the unit as including the position of die engineer or of individu- als Mike Petroraio and Rich Carey. (b) By subcontracting out all die work without providing no- tice to or an opportunity to the Union to bargain respecting the decision to discontinue all of the work or the effects of that discontinuance. (c) By laying off die engineer Mike Petroraio without providing notice to or an opportunity to the Union to bargain respecting the decision to discontinue that position or the ef- fects of the layoff. (d) By changing the job content and duties of die engineer Rich Carey without providing notice to or an opportunity to the Union to bargain respecting the decision or its effects. 5. The unfair labor practices described above are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]