Tecnocap LLC

368 NLRB No. 70 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Tecnocap LLC and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Indus- trial and Service Workers International Union (USW), AFL–CIO, CLC.1 Case 06–CA–216499 September 16, 2019 DECISION AND ORDER BY CHAIRMAN RING AND MEMBERS KAPLAN AND EMANUEL On April 5, 2019, Administrative Law Judge Michael A. Rosas issued the attached decision. The Respondent filed exceptions with supporting argument, the General Counsel and the Charging Party each filed an answering brief, and the Respondent filed a reply brief. The Charg- ing Party filed a cross-exception with supporting argu- ment, and the Respondent 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,2 and conclusions and to adopt the recommended Order as modified and set forth in full below.3 AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 5. “5. The Respondent violated Section 8(a)(5) and (1) of the Act by: (1) locking out Union members in support of a demand that the Union agree to a contract provision to 1 We have amended the case caption to conform to the General Coun- sel’s complaint. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stand- ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The General Counsel requests that we disregard the Respondent’s ex- ceptions because they fail to comply with the Board’s Rules and Regu- lations. The Board has discretion in determining compliance with its regulations, and we find that the Respondent’s exceptions substantially comply with the applicable rules. See, e.g., La Gloria Oil & Gas Co., 337 NLRB 1120, 1120 fn. 1 (2002), affd. 71 Fed.Appx. 441 (5th Cir. 2003). Having adopted the judge’s finding that the Respondent violated Sec. 8(a)(5) by partially implementing its last, best, and final offer by estab- lishing new job classifications without reaching a good-faith impasse, we find it unnecessary to pass on the judge’s related finding that the Re- spondent also violated Sec. 8(a)(5) by failing to obtain the Union’s con- sent prior to unilaterally implementing its proposal on a permissive sub- ject of bargaining, as this additional finding would not materially affect change the scope of the bargaining unit, a permissive sub- ject of bargaining; (2) bypassing the Union and dealing directly with unit employees by soliciting employees to enter into individual employment contracts offering em- ployees employment during a partial lockout on the con- dition that they abandon their membership in the Union; and (3) partially implementing its last, best and final offer by establishing new job classifications without reaching a good-faith impasse.” AMENDED REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, the Re- spondent shall make whole unit employees who were locked out from March 12 through 21, 2018, for any loss of earnings and other benefits incurred by them as a result of the unlawful lockout. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Hori- zons, 283 NLRB 1173 (1987), compounded daily as pre- scribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In addition, we shall order the Respondent to compensate affected employees for any adverse tax con- sequences of receiving lump-sum backpay awards, and to file with the Regional Director for Region 6, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each em- ployee. AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). In accordance with King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in relevant part 859 F.3d 23 (D.C. the remedy. In addition, we affirm the judge’s findings that the Respond- ent violated Sec. 8(a)(5) by locking out union members in support of a demand that the Union agree to a contract provision to change the scope of the bargaining unit, a permissive subject of bargaining, and violated Sec. 8(a)(3) by locking out unit employees who are union members while permitting unit employees who are not union members to continue work- ing. We find it unnecessary to pass on the judge’s additional finding that the Respondent violated Sec. 8(a)(5) by failing and refusing to reinstate its locked-out employees without giving the Union clear conditions for reinstatement because this additional ground for finding the lockout un- lawful would not materially affect the remedy. 3 We shall amend the judge’s remedy and Conclusions of Law con- sistent with our findings herein. We shall modify the judge’s recom- mended Order to conform to our findings and the Board’s standard re- medial language and to be in accordance with our decisions in Ferguson Electric Co., 335 NLRB 142 (2001), and Excel Container, Inc., 325 NLRB 17 (1997). We shall also substitute a new notice to conform to the Order as modified. The Charging Party requests that the Board grant certain extraordi- nary remedies, including a broad cease-and-desist order, the Union’s and Board’s litigation expenses and a notice-reading remedy. We deny this request because the Board’s traditional remedies are sufficient to effec- tuate the policies of the Act in this matter. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cir. 2017), we shall also order the Respondent to compen- sate affected employees for their search-for-work and in- terim employment expenses regardless of whether those expenses exceed interim earnings. Search-for-work and interim employment expenses shall be calculated sepa- rately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. ORDER The National Labor Relations Board orders that the Re- spondent, Tecnocap LLC, Glen Dale, West Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging membership in United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied In- dustrial and Service Workers International Union (USW), AFL–CIO, CLC (the Union) by telling employees that the Respondent will only lock out union members and im- pliedly soliciting their resignations from the Union. (b) Discouraging membership in the Union by locking out unit employees who are members of the Union while permitting unit employees who are not members of the Union to continue working. (c) Locking out union members in support of a demand that the Union agree to a contract provision to change the scope of the bargaining unit, a permissive subject of bar- gaining. (d) Bypassing the Union and dealing directly with unit employees by soliciting employees to enter into individual employment contracts offering employees employment during a partial lockout on the condition that they abandon their membership in the Union. (e) Partially implementing its last, best and final offer by establishing new job classifications without reaching a good-faith impasse. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole those employees who were locked out from March 12 through March 21, 2018, for any loss of earnings and other benefits they suffered as a result of its unlawful lockout, in the manner set forth in the amended remedy section of this decision. (b) Compensate affected employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 6, 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful lockout as it pertains to each affected employee, and within 3 days thereafter, notify the employees in writing that this has been done and that the lockout will not be used against them in any way. (d) 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 payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its Glen Dale, West Virginia facility, copies of the at- tached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are custom- arily posted. In addition to physical posting of paper no- tices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facilities involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former em- ployees employed by the Respondent at any time since March 1, 2018. (f) Within 21 days after service by the Region, file with the Regional Director for Region 6 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. September 16, 2019 United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” TECNOCAP LLC 3 ______________________________________ John F. Ring, Chairman _____________________________________ Marvin E. Kaplan, Member _____________________________________ William J. Emanuel, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated 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 ac- tivities. WE WILL NOT discourage membership in United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Al- lied Industrial and Service Workers International Union (USW), AFL–CIO, CLC (the Union) by telling you that we will only lock out union members and impliedly solic- iting your resignations from the Union. WE WILL NOT discourage membership in the Union by locking out unit employees who are members of the Union while permitting unit employees who are not members of the Union to continue working. WE WILL NOT lock out union members in support of our demand that the Union agree to a contract provision to change the scope of your bargaining unit, a permissive subject of bargaining. WE WILL NOT bypass the Union and deal directly with you by soliciting you to enter into individual employment contracts offering you employment during a partial lock- out on the condition that you abandon your membership in the Union. WE WILL NOT partially implement our last, best and fi- nal offer by establishing new job classifications without reaching a good-faith impasse. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL make whole those employees who were locked out from March 12 through March 21, 2018, for any loss of earnings and other benefits they suffered be- cause of our unlawful lockout, less any net interim earn- ings, plus interest, and WE WILL also make those employ- ees whole for reasonable search-for-work and interim em- ployment expenses, plus interest. WE WILL compensate affected employees for the ad- verse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Di- rector for Region 6, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful lockout as it pertains to each affected employee, and WE WILL, within 3 days thereafter, notify each of them in writ- ing that this has been done and that the lockout will not be used against them in any way. TECNOCAP LLC The Board’s decision can be found at https://www.nlrb.gov/case/06-CA-216499 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Clifford Spungen, Esq., for the General Counsel. Bradley K. Shafer, Esq. (Mintzer, Sarowitz, Zeris, Ledva & Mey- ers, LLP), of Wheeling, West Virgina, for the Respondent. Maneesh Sharma, Esq. (United Steel Workers), of Pittsburgh, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Wheeling, West Virginia, on February 12, 2019. The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Un- ion (the Union) alleges that Tecnocap LLC (the Respondent) vi- olated Section 8(a)(1) of the National Labor Relations Act1 by announcing to unit employees that it would lockout only those unit employees who were members of the Union and by im- pliedly soliciting its employees to resign their membership in the Union in order to continue working during the planned lockout of members of the Union. In addition, the complaint alleges that Respondent violated Section 8(a)(3) and (1) of the Act by lock- ing out its employees who were members of the Union, while permitting its employees who were not members of the Union to continue working. Finally, the complaint alleges that Respond- ent violated Section 8(a)(5) and (1) of the Act by insisting as a condition of reaching any collective-bargaining agreement that the Union agree to change the scope of the bargaining unit, a permissive subject of bargaining, and by partially implementing its last best and final offer by expanding the bargaining unit with- out the consent of the Union; by bypassing the Union and dealing directly with its employees by soliciting its employees to enter into individual employment contracts with Respondent in order to work during the lockout of employees who were members of the Union; and by, during the partial lockout, failing to inform the Union of the terms under which the partial lockout could be ended. The Respondent denies the allegations and asserts that it at- tempted to resolve critical production problems with the Union by negotiating the reorganization of personnel, but the Union never made a counterproposal and the parties reached contrac- tual impasse. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, Charging Party and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent, a limited liability corporation with an office and place of business in Glen Dale, West Virginia, is engaged in the manufacture and nonretail sale of container closures valued in excess of $50,000 annually, which goods it sells and ships di- rectly to customers located outside the State of West Virginia, and purchases and receives materials valued in excess of $50,000 directly from points outside the State of West Virginia. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the 1 29 USC §§ 151–169. Act and the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Company’s Operations The Respondent manufactures customized and stock steel and aluminum closures at its plant in Glen Dale, West Virginia. The Respondent was incorporated in 1999 and has operated the Glen Dale facility since 2006. Paolo Ghigo is the Respondent’s pres- ident; Darrick Doty is director of human resources; and Ric Smith is plant manager. All are statutory supervisors within the meaning of Section 2(11) of the Act and agents within Section 2(13) of the Act. B. The Two Unions The following employees of Respondent (the Unit) constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All hourly rated production and maintenance employees, in- cluding warehousemen; except employees on jobs covered by contracts with other unions, salaried supervisors, office clerical and other employees excluded by law. Since at least 2006, the Respondent has recognized the Union and its Local Union. No. 152M Wheeling, West Virginia, AFL– CIO, CLC, formerly known as Glass, Molders, Pottery, Plastics & Allied Workers International Union, and its Local Union No. 152, AFL–C1O, CLC (GMP), as the exclusive collective-bar- gaining representative of the Unit. Unit employees were subject to the terms of a collective-bargaining agreement (GMP CBA) between Respondent and the Union, effective by its terms from November 29, 2015, through and including November 18, 2017, and voluntarily extended through and including February 28, 2018.2 The most recent collective-bargaining agreement is ef- fective from March 21, 2018, to September 30, 2019. The GMP and its constituent local unions, including Local Union 152, merged into and became a part of the Union pursuant to a merger agreement between the GMP and the Union, dated January 21, 2016, with an effective date of January 1, 2018 (Mer- ger Agreement). The Merger Agreement provided that the mer- ger shall not interrupt or in any way change the continuity of collective bargaining agreements and that effective January 1, 2018 all powers, rights, privileges, benefits, authority, duties and responsibilities vested in the GMP and its local unions pursuant to bargaining rights and certifications and collective-bargaining agreements to which the GMP and/or its local unions are a party or beneficiary as of said date, and the right to enforce same, were vested in the Union and its locals as though they and not the GMP and its local unions had originally been named as a party thereto or beneficiary thereof. As a result of the Merger Agree- ment, GMP Local Union 152 was chartered as the Union’s Local Union 152M. Since at least 2006, all tool & die makers, machinists, electri- cians, die setters, millwrights and their apprentices employed by Respondent at Respondent’s facility have been represented by the International Association of Machinists and Aerospace 2 Jt. Exh. 1–2. TECNOCAP LLC 5 Workers Local 818 of District 51 (IAM). The IAM bargaining unit consists of “all employees engaged in the making, assem- bling, erecting, dismantling, installing, testing and repairing of all equipment and/or parts thereof; including production equip- ment set-up, repair, lubrication, finished part specification con- formance, and operational monitoring, of all descriptions.” Most recently, employees represented by the IAM were subject to the terms of a collective bargaining agreement (IAM CBA) between the Respondent and the IAM, effective by its terms from April 6, 2015 through and including April 8, 2018.3 C. Coverage of Bargaining Unit Work During Lunch and Breaks The Respondent’s operations rely on continued production at all times. Covering the work of production employees during lunch and break periods, however, has long been a difficult issue to resolve. The Respondent sought to address that issue during its contract negotiations with the IAM in 2015. At that time, the parties executed an agreement permitting IAM-represented em- ployees in the die setter classification to provide lunch and break coverage for production employees represented by the Union in the event that the Union agreed to allow IAM-represented em- ployees to perform such work. On March 18, 2016, the Respondent, the IAM and the GMP met to discuss issues of continuity of production but were unable to reach an agreement on the use of IAM-represented employees in the die setter classification during the lunch and break periods of unit employees. Notwithstanding the lack of an agreement with the GMP, be- tween March 31 and May 11, 2016, the Company assigned IAM- represented employees in the die setter classification to provide lunch and break coverage for production employees represented by the Union. In response, both the Union and the IAM filed separate grievances. On December 10, 2016 an arbitrator issued a decision concerning the grievances filed by the IAM. Follow- ing the arbitrator’s decision in the IAM case, the Union withdrew its grievances on the same issue.4 D. Bargaining Over Operator Classifications The most recent bargaining for a successor collective bargain- ing agreement between the Respondent and the Union com- menced on October 30, 2017. Bargaining sessions were held on October 30 and 31, 2017; November 1, 9, 10, 13, 14 and 15, 2017; December 1 and 6, 2017; January 12, 17 and 19, 2018; February 12, 14, 15 and 28, 2018; and, March 9 and 19, 2018. During the bargaining sessions, the Union was represented by Local Union President Lisa Wilds, Vice President Dennis Latto- cha, recording secretary Kathy Paske, business committee chair- man Gerry Cunningham, and international representative Pete Jacks. During the bargaining sessions, the Respondent was repre- sented by director of human Resources and lead negotiator Dar- rick Doty, Plant Manager Ric Smith, legal counsel Bradley 3 Jt. Exh. 3. 4 Jt. Exh. 5. 5 Jt. Exh. 4. 6 Jt. Exh. 5 at 3. Shafer and, at meetings in 2017, former director of human re- sources Charles Thomas. The Respondent’s president Paolo Ghigo attended the bargaining session on March 19, 2019. As part of contract negotiations between the Union and the Respondent, the latter prepared job descriptions for jobs titled Operator 1, Operator II, and Operator III, dated October 25, 2017, and provided copies of the same to the Union’s bargaining team.5 At the outset of negotiations, the Respondent informed the Union it intended to move into the unit some of the duties performed by IAM-represented employees in the die setter clas- sification. During the bargaining session held on November 9, 2017, the Respondent proposed reducing the number of job classifications in the unit from fourteen to three, to be known as the Operator I, II and III classifications. The Respondent proposed placing all employees in the unit into the Operator I and II classifications. The Respondent further proposed placing some die setter em- ployees represented by the IAM and their duties into the Opera- tor III classification. On November 15, the Respondent and the Union signed a Memorandum of Agreement (MOA) to extend the current bar- gaining agreement to February 28, 2018. By the terms of the MOA, the Union accepted the creation of Operator I, II and III job classifications with the caveat that negotiations would “con- tinue as to red-circling, grandfathering, and who falls in what class.”6 The MOA made no mention of the die setter position or the job descriptions proposed by Respondent. Nor was agree- ment reached as to which jobs would go into which classifica- tion, or whether the Operator III classification would be filled by union-represented employees or IAM-represented die setters.7 The Respondent and the Union continued to meet and ex- change proposals over the next few months. Throughout nego- tiations, the Respondent consistently maintained that “it is the company’s intention to move the die setters to class 3 operator, something which has been discussed at length in negotiations.” The Union did not agree and instead proposed on February 12, 2018 to place four current union-represented unit jobs into the Operator III classification.8 During the parties’ contract negotiations session on February 15, the Respondent rejected the Union’s proposal to staff the Op- erator III classification with unit employees and presented the Union with its first “Last and Final” offer. The offer included a proposed new Section 4 to Article 33 of the CBA: It is expressly recognized that changing of dies and other pro- cesses that take a line out of production are time sensitive op- erations. Accordingly, the parties agree that management has the absolute discretionary right to assign employees of its own choosing to perform these tasks without regard to job classifi- cation or union membership.9 In addition, the Respondent delivered to the Union a document listing bargaining unit members and their proposed wage rates. 7 Wilds’ credible testimony that the Union agreed to the three classi- fications, but only for the duration of the extension agreement, was not disputed. (Tr. 78.) 8 GC Exh. 3; Jt. 22 at 2. 9 Jt. Exh. 6. 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The only employee reclassified as an Operator III was Scott Shimp, an IAM-represented die setter.10 On February 21, the Union informed the Respondent that its February 15 contract proposal was rejected in a February 18 vote by the membership but urged continued bargaining: The GMP Council of the USW and Local Union 152 remain ready, willing and able to meet with Tecnocap to continue to bargain until we are able to successfully agree upon a successor collective bargaining agreement. We believe that if each party comes to the table with a genuine desire to reach an agreement the parties will be able to agree upon a successor agreement with further negotiations. Please reach out to me regarding the Company’s availability for further contract negotiations. The Union will be prepared to submit a new proposal on the first day that we are able to get back together. As you know, the contract extension expires on February 28, 2018. It is im- portant that all efforts be made to get back together for negoti- ations before February 28th. However, if the contract should expire prior to an agreement on a successor agreement, the Un- ion is willing to continue to work on and after March 1, 2018 under all of the terms and conditions of the expired collective bargaining agreement and our members will report to work on March 1, 2018 with this understanding absent written commu- nication to the contrary. However, this does not in any way waive the right of the Union to go on strike if the Union be- lieves that circumstances warrant that action. We remain opti- mistic that further negotiations will result in a successor agree- ment, thus avoiding any issue of a work stoppage. I look for- ward to hearing back from you with proposed new dates.11 The next meeting was scheduled for February 26. On Febru- ary 25 at 7:07 p.m., however, the Respondent disputed the Un- ion’s characterization as to the status of the negotiations and ad- vised that it was preparing to declare an impasse: After reviewing the unions proposals, and given the lack of movement, the company has decided to cancel for tomorrow. If/when the union has a response and desires to meet, call and we will come. Otherwise, it appears the union is unable to make any moves of substance and if that is the case, maybe time better spent with union committee having some serious discussions about either accepting proposals or making pro- posals that address the needs/issues the company has laid out to be solved. The contract expires at midnight on Feb 28. We presented the company’s best and final offer on February 15. At this late stage, simply reiterating that the Union’s position has not changed and submitting “CCL” round after round is not viewed by the company as negotiating in good faith and such Proposals are not productive in the effort to reach an agree- ment. As per your letter dated February 21st, we discussed Fri- day about the union not working under expired contract lan- guage but will instead work pursuant to language that has been agreed upon or on which we have reached impasse. As for the information request, the company has previously supplied all information to you either verbally, electronically, or hard copy.12 10 Jt. Exh. 7. 11 Jt. Exh. 8. On February 26 at 5:04 p.m., the Union replied by asserting that the changes in the Respondent’s position amounted to re- gressive counteroffer: The Union’s most recent proposal contained numerous mean- ingful changes and concessions which you ignore in your e- mail. The Union modified its wage demands by fifty cents ($0.50) in each year in both classifications, it addressed the Company’s concerns about hours of work and overtime for employees who work over early in the week and then report off on Fridays, and it modified the bidding procedure to address the Company’s concerns. To the extent you reference the Un- ion proposing “CCL” we assume you are referencing Articles 27 and 28 of the CBA. As you know, the parties agreed to TA Article 27 and then the Company, in an act of regressive and bad faith bargaining, proposed to remove both Article 27 and 28 entirely from the successor agreement after having agreed to Article 27. The Union proposal simply returns Article 27 to the agreed to status. Your statement that there has been a “lack of movement” or that the Union has failed to make “moves of substance” is simply untrue. The Union appeared this morning at the designated time and place ready to bargain. The Com- pany failed to appear. The Union remains ready and willing to continue to negotiate with the Company on a successor agree- ment. Please send dates of your availability to continue nego- tiations for successor agreement.13 On February 27 at 10:09 a.m., Doty responded to Jacks, dis- puting his assertions and maintaining that the parties remained at impasse on the major issues: We completely disagree with your arbitrary conclusions in your letter dated February 26, 2018, which we found pro- foundly erroneous and without evidence whatsoever. We would like to remind that your pointless moves, as we see them, are irrelevant to achieve an agreement. We were shocked this morning to understand that you hadn’t informed the local Un- ion members of the cancellation of the meeting. We com- pletely understand that things like that happen when an incon- sistent last minute proposal, as we see it, is submitted only the day before the meeting. We don’t argue with your genuine de- sire to reach an agreement but we continue to register impasse on the three following main points: Three job classifications. Please be reminded that the three job classifications have been the main point on which extension was granted in November. Unfortunately yes, more than three months ago and we don’t really know how to interpret your recent genuine objections on those. Seniority- Reiterating CCL is unacceptable. The company has informed you of the issues and yet, you have not proposed a reasonable solution. Grievance/Arbitration process – We took language suggested by Lewis’ arbitrator who made it sound like limiting the arbi- trator power was customaryand standard language in contracts. Only when the union refused to agree to the arbitrator language did we say strike the whole thing. Finally, please be reminded that all of your requests have been 12 Jt. Exh. 9. 13 Jt. Exh. 10. TECNOCAP LLC 7 already addressed, either verbally, electronically, or by hard copy after the non-disclosure agreement was signed and no more information will be released. Nevertheless, we are avail- able to meet at your earliest convenience on Wednesday.14 The parties resumed bargaining on February 28 and the Re- spondent delivered to the Union a final proposal entitled “Com- pany response to Union’s Response to Company’s Last & Final 2/26/18.”15 Jacks responded by handing Doty a one-paragraph document setting forth the Union’s long-standing position re- garding the Operator III classification: The third job classification which the Company is insisting upon in bargaining consists exclusively of work that is not in the GMP Council/USW bargaining unit and does not belong to the GMP Council/USW. All of the work in this ‘third job clas- sification’ belongs to the IAM. The GMP Council/USW has repeatedly advised the Company that there is no basis for the parties to bargain over this third job classification which does not belong to the GMP Council/USW. This is an improper sub- ject for bargaining. To the extent that the Company considers this a permissive subject of bargaining you are advised that the GMP Council/USW does not wish to bargain on this issue. You appear to believe that the Company can bargain to impasse over this issue. You are incorrect.16 On March 1, the Respondent posted a notice on the employee bulletin board informing unit employees that the parties were at impasse and jobs classifications were being changed: The parties have attempted to reach an agreement without suc- cess. While we hope an agreement can be reached, business must continue. In the meantime, you are working without a contract. During this time many of the benefits and agreements from to expired contract will continue in effect. Further, new items upon which an agreement has been had will also be imple- mented. Effective today, the jobs are organized into three classifications only. Everybody is excited for the simplification offered by the new organization, which is expected to enable our company achieve the performance necessary to continue to thrive and compete into the global market. As with any transition or change, many questions may arise. Please feel free to address those questions directly to Darrick Doty. Finally, it is the Company’s understanding that a vote is being scheduled on the last, best, and final offer. You are encouraged to get in touch with your union representatives and become per- sonally informed of the terms and conditions of the proposal. As always I’m at your disposal to try to answer any questions you may have.17 On the same day, the Respondent implemented its proposal to create three job classifications, Operator I, Operator II, and Op- erator III. Unit employees were assigned to the Operator I and II classifications. The Operator III classification was left 14 Jt. Exh. 11. 15 Jt. Exh. 13. 16 Jacks’ credible testimony that he handed the paper to Doty was not disputed. (GC Exh. 2; Tr. 76–78, 101–102.) unfilled. On March 5, the Respondent posted another notice on the em- ployee bulletin board informing union unit employees that the parties remained at impasse and were still far apart. As the Re- spondent considered the “situation unacceptable,” it decided that it would lock-out unit employees on March 13 until an agree- ment was reached. Employees were also advised to contact hu- man resources with any questions. In response, an undetermined number of employees went to speak with Doty, asked how to resign from the Union and, if they did so, whether they could continue to work.18 On March 7, Doty responded to employee inquiries by posting another notice for “informational purposes” due to “questions that have been asked” about the impending lockout: 1) The Lockout applies only to GMP union members. Mem- bers of the IAM, salaried personnel, and others are expected to continue to work. 2) The Company may, or may not, hire employees to work dur- ing the lockout. If it does so, those employees will be “tempo- rary employees.” What this term means is that if and when the lockout ends, GMP union members wishing to return to work will be permitted to return to work. If one of these “temporary employees” needs to be let go to make room available for a returning GMP member, then that “temporary employee will lose his or her job. 3) If there is a lockout and “temporary employees”) are hired, those employees are “at-will” employees, meaning their em- ployment can end with or without cause, with or without no- tice, by the choice of either the “temporary employee or the company. 4) If there is a lockout and “temporary employees” are hired, it is possible that the “temporary employee” may work the entire duration of the lockout, however long that may be—days, weeks, months, years, etc. 5) For a lockout to end, there must be an agreement to do so between the company and the GMP. If that situation arises, the GMP and the Company will have to negotiate that agreement. 6) It is an unfair labor practice for the company to make any promises of employment to anyone in advance of a lockout that might be affected by that lockout. It is an unfair labor practice for the union to coerce people to remain union members against their will. 7) Both the Company and GMP remain under the obligation to negotiate in good faith. The obligation to negotiate in good faith does not necessarily mean that the parties will reach an agreement. The Company is required to negotiate with the GMP negotiating committee, it cannot engage in individual ne- gotiations with other GMP members. 8) The Company presented the GMP with its best, last, and fi- nal offer on February 28, 2018. To the best of the Company’s knowledge, no vote has been taken nor has one been scheduled 17 Jt. Exh. 14. 18 It is undisputed that numerous employees reacted anxiously to the posting and sought to resign from the Union in order to continue work- ing. (Jt. Exh. 15; Tr. 26, 80.) 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD by the Union. Any questions on this topic should be directed towards your GMP officers. 9) Whether or not you approve or disapprove of the represen- tation by the GMP and what, if anything, you chose to do as a result are matters of your own personal interest and the com- pany cannot tell or advise you as to what you should or should not do.19 As plans for the lockout proceeded, Jacks and Doty exchanged several emails in an attempt to resume negotiations.20 On March 9, the parties discussed the unilateral implementation of the three new job classifications. Doty asserted that the parties agreed to the three job classifications in November 2017, but Jacks coun- tered that they had not agreed about which jobs would go into each classification and the applicable wage rates. In discussing the Operator III classification, Doty described it “like a dinner reservation, that classification couldn’t have any of our people in it; it was for the die setters and their work when they came over from the IAM to the USW. . . .” Later that night Doty emailed the Respondent’s third last best and final offer to the Union. The offer, which only included items that were still left on the table, again insisted on the creation of the Operator III classification.21 On March 12, the Respondent posted a notice on the employee bulletin board entitled “Lockout Notice:” As you are aware, the Company made its best and final offer to the Union Negotiating Team on March 9, 2018. It is the Com- pany’s understanding that Union management will not permit the offer to be voted upon by its members. The negotiating team has not made any counterproposal. The collective bar- gaining agreement expired on November 18, 2017 and the ex- tension expired February 28, 2018. Because of this, a lockout of the GMP will begin tonight, March 12, 2018, at 11 pm. As stated in the Company’s earlier posting about Lockouts, The Lockout applies only to GMP un- ion members. Members of the IAM, salaried personnel, and others are expected to continue to work. The Company will be hiring temporary employees during the lockout. If you wish to apply for a position, please see Darrick Doty.22 Prior to the lockout notice posting on March 12, three Unit employees resigned from the Union: Jeffrey Mealy, Peggy Sta- chura, and Danny Robertson. Within hours of the notice being posted, another three Unit employees notified the Respondent that they resigned from the Union: Joseph Birkheimer, Christo- pher D. Williams Jr. and Christopher D. Williams Sr.23 Jacks emailed Doty on March 12 charging that the lockout was illegal and reiterating the Union’s desire to continue bargaining: As you are aware the GMP Council of the USW and its Local 152 believe that Tecnocap is about to engage in an illegal lock- out of the GMP Council/USW bargaining unit members at 19 Jt. Exh. 16. 20 R. Exh. 3. 21 Wilds’ testimony regarding the discussion between Doty and Jacks at the meeting was not disputed. (Jt. Exh. 17; Tr. 29, 78.) 22 Jt. Exh. 18. 23 The Respondent called Robertson and Williams, Jr. as witnesses, both of whom credibly testified that they resigned from the Union Tecnocap. The GMP Council/USW is actively pursuing unfair labor charges against Tecnocap which we believe win ulti- mately be successful. Once those charges are sustained by the National Labor Relations Board, Tecnocap will be required to compensate all of the bargaining unit members for their lost wages and benefits. Tecnocap’s financial exposure as a result of the illegal lock-out will likely be very significant. The GMP Council of the USW and Its Local 152 remain will- ing to negotiate with Tecnocap on a successor agreement on the numerous open issues remaining including, without limita- tion, economics, job classifications, grievance and arbitration. We believe that there is room for both sides to move on open issues. if Tecnocap were to abandon its regressive and bad faith bargaining and were to bargain in good faith with its decision maker at the table, we are optimistic that an agreement can be reached. Unfortunately, given Tecnocap’s conduct, the USW and Local 152 have been required to spend time and energy preparing for the Illegal lock-out. The membership, with the full backing of the USW, is prepared to utilize every tool at its disposal to fight for a fair and equitable contract during any illegal lock-out. Our desire however is to continue to work under the terms of the expired agreement until such time as we are able to reach agreement on a successor contract. We remain ready to negotiate. However, there are some infor- mation request that remain outstanding and we have additional requests relative to open issues. which we are asking you to address without delay. The information requests are attached. We hope that you share our desire to reach an agreement with- out any illegal lock-out or work stoppage and that you will re- spond in a timely manner to the requests and work with us to set up additional bargaining sessions.24 The lockout began as scheduled at 11 p.m. on March 12. Unit employees were refused entry, while nonunion members, includ- ing the six employees who recently resigned from the Union, were permitted to continue working and paid the higher of the wage rates set forth in the Respondent’s last best and final offer or the seniority or flat rate.25 Shortly thereafter, picket lines were set up at the facility’s entrances. On March 13 at 10:06 a.m., Doty informed Wilds that the Re- spondent’s “last, best and final offer” would expire at 11 p.m. on March 13 and that “if the union wishes to submit additional pro- posals, please do so via email and arrangements will be made to meet.”26 On the same day, Doty also responded to Jacks’ March 12 letter: I am in receipt of your letter and information requests dated because of bad experiences with union leadership. In Williams’ case, he also cited his wife’s critical illness and need for continued medical insur- ance. (Tr. 107–109, 112–113.) 24 Jt. Exh. 21. 25 These six employees were also the only employees to receive bo- nuses. (Jt. Exh. 30.) 26 Jt. Exh. 20. TECNOCAP LLC 9 March 12. I am deeply disappointed that negotiations remain stalled and I continue to get the same information requests that I answered so many weeks ago. The Company is also con- cerned that your letter indicates that job classifications is an open issue when it was confirmed at least twice now that we have an agreement on the new three classification organization. We believe this is a showing of bad faith on the part of the Un- ion. The Company should not constantly have to confirm and re-confirm agreements that have taken place. The Company issued its last, best and final offer last week. I understand there was a meeting over the weekend, but Union management chose not to present the offer to the membership for vote. l am hearing instead that Union management took the opportunity to intimidate, coerce and issue threats of retaliation against anyone who is considering dropping their membership. Given the circumstances, the Company had little choice but to lock out the employees. The contract has expired, the extension has expired, the Union refuses to even vote on the proposal that is on the table, and the proposals from the union are mainly regurgitations of the same old proposals that have already been rejected. You have known since last summer that the current contract language unacceptable to the Company as it prevents the oper- ation of lines and continuation of production during break time. This issue was raised directly with both the IAM and the GMP together, in the same room, with the hopes of coming to a so- lution acceptable to all. Thus, all of us know that your proposal to simply continue working under the old, expired contract is not a feasible solution. We have been in negotiations for many months now. Your ne- gotiating team is fully aware of the issues the Company is try- ing to resolve and why it believes its proposals will resolve them. To date, nothing of any real substance has been offered by the Union which addresses these outstanding issues. If the negotiating team has any desire to negotiate and propose alter- natives that solve the issues that we have discussed, please send them over immediately and we can meet to discuss them. We are available to meet Monday, March 19. Otherwise, I am not sure what you believe there is to be done at this point to ad- vance both sides towards an agreement. In regards to your information requests, there are no projected cost-savings related to the Company’s wage proposal for the life of the agreement. Instead, our wage proposal represents an average wage increase of 2.15%. The discretionary bonus has been discussed at length in negotiations and you are fully aware that it is based upon performance and the performance criteria have already been discussed. This would be an example of one of the repeating requests for information which you already possess. Another such repetitive request concerns the die setters and the 27 Jt. Exh. 22. 28 Jt. Exh. 24. IAM. Again, you are fully aware that it is the Company’s in- tention to move the die setters to Class III Operator, something which has been discussed at length in negotiations. Negotia- tions with the IAM have not yet commenced as the IAM is presently unavailable to discuss the expiration of their contract. Thus, no written proposals have been exchanged between the two parties, not that you would be entitled to see any draft pro- posals as you are not a party to those negotiations. The man- power request has also been previously discussed and this in- formation has already been provided to you.27 At some point later that day, the Union’s legal counsel deliv- ered a cease and desist letter regarding the rehiring of employees who resigned from the Union: The Union understands that the Company has allowed bargain- ing unit members who have resigned their membership in the Union to work during its lockout of the GMP Council/USW bargaining unit. This is unlawful. We demand that the Com- pany immediately cease and desist this action. The Company must either lockout the entire bargaining unit, or end this un- lawful lockout and allow the entire bargaining unit back to work. If the Company persists with its unlawful conduct, the Union will take all appropriate actions to ensure this situation is properly remedied. In addition, please provide the following information by no later than noon on Friday, March 16, 2018: ▪ The names of any bargaining unit members who are author- ized by the Company to work during the current lockout. ▪ Any communications between Company representatives and bargaining unit members regarding authorization to work during the current lockout. ▪ Any documents provided to or signed by bargaining unit members who have been granted authorization to work during the lockout regarding work as temporary replacements, includ- ing job application forms. • A description of the conditions upon which bargaining unit members were extended the opportunity to work during the current lockout. • The terms of employment for all temporary replacements cur- rently working in the facility, including bargaining unit mem- bers authorized to work.28 On March 14, Jacks responded to Doty’s March 13 letter by requesting that Respondent confirm that it had withdrawn its “last, best and final offer” as of 11:00 p.m. on March 13:29 Your letter states that the Company is available to negotiate on Monday, March 19. The Committee and I will meet with you on the 19th. I have reserved a meeting room at the Sleep Inn in Moundsville. I propose that we start at 9:00 am. Please con- firm that the Company will attend. At this difficult moment in our labor relations, it is most unfor- tunate that you have chosen to make an outrageous and com- pletely false charge against the Union. You allege that at the union meeting over the weekend “Union management took the 29 Jt. Exh. 23. 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD opportunity to intimidate, coerce and issue threats of retaliation against anyone who is considering dropping their member- ship.” That allegation is utterly devoid of merit. No such thing happened. Making such scurrilous charges does not advance our mutual interest to reach an agreement. Your letter focuses on what the GMP Council of the USW re- fers to as the IAM issue. The Company wants to move certain IAM members into the GMP Council bargaining unit to pro- vide the Company with continuation of production during break time. The Company’s proposals relative to this issue are based on it successfully negotiating this work away from the IAM and the die setters joining the GMP Council, We believe the record makes clear that tile third classification was intended exclusively for these TAM members, although the Company now denies this. As you know, since the IAM members are not members of our bargaining unit, this is clearly a permissive subject of bargaining and one which we have advised you in the past we are unwilling—and unable—to bargain over in connection with the successor agreement. However, I have also made clear that the GMP Council would be willing to ne- gotiate with the Company on all issues relevant to the die set- ters if the following occurs in a lawful manner: (1) the Com- pany is able to get the IAM to agree to relinquish jurisdiction over the die setters, (2) the die setters join the GMP Council Local so that we can represent their interests; and (3) the Com- pany recognizes the GMP Council as the authorized bargaining representative of the die setters. Since the Company’s negoti- ations with the IAM have yet to commence, we do not know what the IAM or the die setters are willing to do. Notwithstanding the foregoing, we are willing to work with the Company on this paramount issue for it and address methods, practices or relief issues within the GMP Council’s control that impact “continuation of production during break time” while the Company is engaged in the IAM negotiations. We invite the Company to propose alternatives that do not involve the IAM issue. Likewise, from the Union perspective, as I have told you many times, the elimination of the grievance and arbitration process from the CBA is counterproductive for both sides. The Com- pany’s intransigence on this issue, after tentatively agreeing to the grievance article, is not likely, using your language, a fea- sible solution, and it represents bad faith and regressive bar- gaining. I hope the Company moves off this position on Mon- day to facilitate reaching an agreement. I cannot leave unaddressed certain charges in your March 13 letter. I categorically deny that The Union has engaged in bad faith bargaining or that its information requests are somehow improper. The Union has bargained at all times in good faith and remains willing and able to bargain in good faith. On the job classification issue, I must note again that the Union agreed to three job classifications, but it remains an open issue as to 30 Jt. Exh. 23. 31 Jt. Exh. 25. which current jobs fall within each new job classification. To the extent that information requests have been repeated, it is because the Company has failed to provide the information or has provided inadequate or incomplete responses. Your re- sponse to the March 12 information request illustrates this point. The Union asked for projected cost-savings related to the Company’s wage proposal. You stated there would be no cost-savings because wages on average would go up. How- ever, that simply looks at wages earned by current employees in their current positions. The Company’s proposal reduces the wages of new hires by $1.00 and eliminates most opportu- nities for employees to bid into higher wage positions. You do not provide projected cost-savings related to those aspects of the Company’s proposal. Similarly, you do not provide the planned frequency or amounts of the proposed discretionary bonuses, or what safeguards the Company will rely on to en- sure that the discretionary bonuses do not violate employment or labor laws. The Union requested more than just proposals passed to the IAM related to the Company intentions for Die Setters; your response mentions nothing about those. These are just examples of inadequate or incomplete answers that do not satisfy the Union’s requests, 1 again ask that you fully respond to all the Union’s information requests. Finally, it is the Union’s understanding that the Company with- drew its “last, best and final” offer (“LBF”) as of 11:00 pm. March 13,2018? Can you confirm that is the case? I look for- ward to receiving your confirmation that the Company will be present on Monday and to the Company’s response hereto.30 Doty did not respond to the Union’s request for confirmation or tell the Union that the Respondent’s offer was still on the ta- ble. On March 16, however, the Respondent’s legal counsel re- sponded to the Union’s cease and desist demand of March 13: As you know, I am counsel for Tecnocap, LLC and have been provided a copy of your March 13, 2018 cease and desist letter wherein you request certain information. Enclosed, please find documentation relating to individuals that ended their affilia- tion with the Union and are currently working. Their names are Chris Williams, Jr., Peggy Stachura, Danny Robertson, Jeff Mealy, Joseph Birkheimer, and Chris Williams, Sr. I have re- dacted their addresses from the enclosed forms. The information you have requested regarding temporary em- ployees. Was provided to Pete Jacks during negotiation and thus I trust he has already shared that information with you. Similarly, I trust he has shared with you the two postings Tecnocap made regarding the lockout. I believe this answers all of your information requests. If not, please let me know.31 On March 19, the parties returned to the bargaining table and the tentatively agreed to a new collective-bargaining agree- ment.32 That same day, the Respondent provided the Union with a payroll spread sheet.33 On March 21, the Union informed the Respondent that the unit of employees represented by the Union ratified the agreement. 32 Jt. Exh. 27. 33 Jt. Exh. 28. TECNOCAP LLC 11 During the evening of March 21, as requested by the Union, representatives of the Respondent telephoned locked out unit employees and directed them to return to work on March 22. In addition, the six former unit employees were notified in writing that their temporary positions were terminated and, since March 22, those employees have also worked under the terms of the new CBA.34 Legal Analysis I. THE RESPONDENT’S DECLARATION OF IMPASSE Section 8(a)(5) requires employers to bargain in good faith with their employees’ collective bargaining representative. By bargaining to impasse over, and unilaterally implementing a per- missive—rather than mandatory—subject of bargaining, an em- ployer violates Section 8(a)(5). Antelope Valley Press, 311 NLRB 459, 460 (1993) (“because neither party is required to bar- gain at all over a permissive subject, a party may not lawfully bargain to impasse over a permissive subject.”); see also Borg- Warner, 356 US. 342, 349 (1958) “[good faith bargaining] does not license the employer to refuse to enter into agreements on the ground that they did not include some proposal which is not a mandatory subject of bargaining . . . such conduct is, in sub- stance, a refusal to bargain about the subjects that are within the scope of bargaining.”). Changes merely to a bargaining unit’s scope are not consid- ered mandatory subjects of bargaining. Idaho Statesman, 281 NLRB 272, 276 (1986); Antelope Valley Press, 311 NLRB at 460 (“the scope of the unit . . . does not involve wages, hours, or other terms and conditions of employment, and therefore is a per- missive subject. Thus, neither party may bargain to impasse over a change in the scope of the bargaining unit.”). The Respondent unlawfully declared impasse on March 1, 2018 and partially implemented its last, best and final offer by moving die-setters from the IAM into one of the unit’s classifi- cations. This is a change affected the scope of the unit regarding who the union represents and into what classifications those em- ployees fall. See Storer Communications, 295 NLRB 72, 78 (1989) (“the [employer’s proposed] changes do not involve who (union) represents, but rather what those employees do. As such, the Respondent was not entitled to bargain to impasse over this proposal, nor to unilaterally implement it.”). The Respondent argues the contrary, citing a number of cases for the proposition that it may declare impasse when it and the union are at deadlock. Yet none of these cases involved a situa- tion where an employer bargained to impasse over a change to the scope of a bargaining unit; on the contrary, all of them in- volve disputes over whether the parties had reached impasse over a mandatory subject of bargaining. E. I. Du Pont & Co., 268 NLRB 1075 (1984) (impasse declared over the ability to shift jobs); Pillowtex Corp., 241 NLRB 40, 46 (1979) (“once the par- ties reach impasse on a mandatory subject of bargaining, and no subsequent event removes the impasse, the employer, as here, would be relieved of any duty to negotiate.”) (emphasis added); Taft Broadcasting Co., 163 NLRB 475 (1967) (impasse declared over interchangeability with respect to categories of employees, which involved the work that employees could perform, a 34 Jt. Exh. 29. condition of employment); Grinnell Fire Systems, 236 F.3d 187, 196 (4th Cir. 2000) (the dispute between the parties was over wages); AMF Bowling Co., 63 F.3d 1293 (4thCir. 1995) (same); Bahcall Industries, 287 NLRB 1257, 1262 (1988) (same). At no point does the Respondent contend that impasse may lawfully be declared over a permissive subject, nor does the Respondent dis- pute that its proposal was, in fact, a change in the scope of the bargaining unit. II. THE RESPONDENT INFORMED EMPLOYEES THAT IT WOULD LOCK OUT UNIT EMPLOYEES AND THEN CARRIED OUT THAT WARNING A lockout is unlawful if done with anti-union animus or where the natural tendency of the lockout is to discourage union mem- bership. Harter Equipment, 280 NLRB 597, 597 and 600 (1986) (lockout was not unlawful where it “did not appear that the ‘nat- ural tendency’ of the lockout was to discourage union member- ship” and where no antiunion animus had been proven); see also R.E. Dietz Co., 311 NLRB 1259, 1264, 1267 (1993) (proof of an employer’s unlawful motive can convert an initially lawful lock- out into an unlawfully motivated lockout that violates the Act). When an employer locks out only union employees while allow- ing non-union employees to work, the employer demonstrates such animus. Schenk Packing Co., 301 NLRB 487, 489 (1991) (where employer initiated a lockout of all employees who were members of the union but let ten employees who resigned from the union return to work, there was not even “a remote justifica- tion” for the lockout, despite employer’s desire to avoid spoilage of its product, because the lockout discouraged unit employees’ membership in the union). Here, the Respondent’s employee bulletin board postings on May 5, 7, and 12, 2018, violated Section 8(a)(1) of the Act. By providing notice to employees that their ability to continue to work would depend on whether or not they were members of the Union, the Respondent created a situation where employees would feel jeopardized if they did not resign. Schenk Packing Co., 301 NLRB at 489 (1991) (employer unlawfully “create[d] a situation in which employees would tend to feel imperiled should they refrain from resigning [from the union]” by making a state- ment that only nonunion members would be hired as replace- ments during a pending lockout). The Respondent suggests that because the record lacks concrete evidence that the employees who resigned their union membership did so because of the Re- spondent’s threat of a lockout, there is no basis to conclude that the lockout was unlawful. This is an inaccurate understanding of the Act; the test for whether an employer’s action chills union activity is an objective, not subjective one—whether the em- ployer’s conduct tends to cause employees to feel imperiled, not whether they actually so feel. Id. By locking out only those employees who remained members of the Union from March 12 through March 21, 2018, the Re- spondent made good on its threats and drew a distinction be- tween employees who performed the same kind of work, were subject to the same CBA, and had the same interest in the con- tract proposals that led to the lockout—a distinction based en- tirely on union affiliation. Schenk Packing Co., 301 NLRB at 489 (employer had not even “a remote justification” for a lockout 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that distinguished on the basis of union membership); McGwier Co., Inc., 204 NLRB 492, 496 (1973) (finding that an employer acted unlawfully in locking out only those employees who, by striking, had identified themselves as union adherents while con- tinuing to operate with other employees). Thus, the Respond- ent’s conduct effectively discouraged union membership in vio- lation of Section 8(a)(3). Schenk, 387 NLRB at 490 (“we con- clude that an unavoidable effect and, hence, unstated purpose of the lockout was to discourage unit employees’ membership in the Union by denying employment to those who maintained that status.”) The Respondent’s reliance on the principle that employees have the right to freely resign from union membership, citing United Mine Workers of America (Canterbury Coal Co.), 305 NLRB 516, 519 (1991) (employees “had a statutory right to re- sign their union membership and return to work for their em- ployer during the strike”), is irrelevant. In that case, the Board found that the union violated Section 8(b)(1)(A) by discrimina- torily applying a strike fund reimbursement rule against mem- bers who resigned their union membership and refrained from taking part in strike activity. The issue here, however, is not whether the Union’s actions restrained unit employees from ex- ercising their rights to refrain from union activity, but rather, the employer’s actions effectively restraining employees from exer- cising their rights to engage in union activity. West Virginia’s Workplace Freedom Act (WV Code 21-5G-1), also cited by the Respondent for the principle that employees have the “right to refrain from affiliating with a labor organization,” merely con- firms that employees have the right to be free of coercion when deciding whether or not to engage in union activity. Finally, as discussed above, the Respondent’s lockout was in- itiated with the goal of compelling employees’ acquiescence with a contract proposal upon which the Respondent had no right, under the Act, to insist. Locking out employees for the purpose of compelling acceptance with an employer’s unlaw- fully implemented final offer is prohibited by the Act. Royal Motor Sales, 329 NLRB 760, 765 (1999) (citing Teamsters Lo- cal 639 (D.C. Liquor Wholesalers) v. NLRB, 924 F.2d 1078, 1085 (D.C. Cir. 1991) (“The Board has held . . . that an employer violates 8(a)(5) and (1) of the Act when it locks out employees for the purpose of . . . compelling acceptance of its unfair labor practices.”). In fact, the Board has specifically held that an em- ployer may not lock out employees in order to force a union to accede to demands regarding changes in the scope of a bargain- ing unit. Greensburg Coca-Cola Bottling Co., 311 NLRB 1022, 1023 (1993) (enf. denied, NLRB v. Greensburg Coca-Cola Bot- tling Co., Inc., 40 F.3d 669, 674 (3d Cir. 1994) (denied on basis of finding that the record showed the Company had not been, in fact, insisting on a proposal to impasse). Thus, even if the Re- spondent’s lockout did not violate the Act by unlawfully discour- aging union membership—which it does—it would still be un- lawful. III. THE RESPONDENT FAILED TO INFORM THE UNION ABOUT HOW TO END THE LOCKOUT A fundamental principle of any lockout is that the employer provide the union with clear terms such that the union, by acced- ing to them, may end the lockout. Dayton Newspapers, 339 NLRB 650, 656–667 (2003) (aff’d in relevant part 402 F.3d 651 (2005) (a fundamental principle underlying any lawful lockout is that the union may end the lockout, and return the employees to work, by agreeing to the employer’s demands); see also Eads Transfer, Inc., 304 NLRB 711, 712 (1991) (employer found to have acted unlawfully by not responding to strikers’ requests for reinstatement (thereby changing the strike into a lockout) be- cause the strikers could not knowingly reevaluate their position and decide whether to accept the employer’s terms); Boehringer Ingelheim Vetmedica, 350 NLRB 678 (2007) (“Respondent’s de- mands must be sufficiently clear” or an otherwise lawful lockout can become unlawful). Here, the Respondent withdrew its last, best and final offer, but left the lockout in place, leaving the Union with no clear de- mand to which to accede—and no clear means of ending the lockout. Dayton Newspapers, 339 NLRB at 656 (employer vio- lated Section 8(a)(5) by failing to give the Union a clear set of terms for reinstatement of its employees). The Respondent argues that the withdrawal of its offer on March 13, 2018 was not to be taken seriously but was merely a bold statement made to convey the seriousness of the offer—and thus, that the Respondent met its burden under Dayton because the Union should have known that the way to end the lockout was to accede to that offer. Yet the Respondent’s assertion that the Union should not have taken the withdrawal of the offer se- riously falls apart in light of the fact that the Union specifically reached out to the Respondent on March 14, stating in writing its belief that the final offer had been withdrawn, and asking for confirmation of that fact. The Respondent did nothing to correct the Union’s belief; it simply failed to reply. The Respondent had the opportunity to put its offer—or another offer—back on the table, and by not doing so, it failed to offer the Union the terms necessary to end the lockout, in violation of Sections 8(a)(5) and (1). The fact that the Company offered a proposal on March 19 does not cure the violation. Unless the employer remedies the harmful effects of the lockout on the employees by restoring the status quo ante, a lockout that is unlawful at its inception retains the taint of illegality until it ends, and the affected employees are made whole. Alden Leeds, Inc., 357 NLRB 84, 84 fn. 3 (2011) (“it is well established that a lockout unlawful at its inception retains its initial taint of illegality until it is terminated and the affected employees are made whole”); Movers and Warehouse- men Assn. of Washington, D.C., 224 NLRB 356, 358 (1976) (where an employer failed to offer reinstatement to locked-out employees, never offered backpay, and never acknowledged its wrongdoing, the unlawful effects of the lockout had not been mitigated). IV. RESPONDENT DEALT DIRECTLY WITH UNIT EMPLOYEES An employer violates Section 8(a)(5) and (1) of the Act when it bypasses a union and deals directly with its employees. El Paso Electric Co., 355 NLRB 544, 545 (2010). Direct dealing occurs (1) when an employer communicates directly with repre- sented employees, (2) for the purpose of changing wages, hours, or terms and conditions of employment or undercutting the un- ion’s role in bargaining, and (3) the communication excludes the union. Id. TECNOCAP LLC 13 The Respondent created the framework to deal directly with unit employees by posting its repeated notices on March 5, 7 and 12, 2018, informing them of the impending lockout, advising them that the Respondent was “at [their] disposal to answer any questions they may have,” and instructing them to see Doty if they wished to seek a temporary position during the lockout. These notices accomplished their intended effect by causing unit employees to approach Doty to ask what they needed to do to continue working. Doty then drafted letters of hire for six em- ployees who wished to resign their union membership and con- tinue working on a temporary basis. Although these employees had resigned their union membership, they were still part of the bargaining unit. As such, the Respondent communicated di- rectly with represented employees, thereby satisfying the first El Paso factor. The second factor was met by the fact that the let- ters altered these employees’ status to that of at-will employees, thereby affecting their rights related to discharge; discharge is a term and condition of employment. E.g., Malone & Burkheimer dba Sorrento Hotel, 266 NLRB 350 (1983) (successor employer unlawfully discharged predecessor’s employees without bar- gaining). Finally, the Respondent did this without consulting the Union, satisfying the third El Paso factor. The Respondent did not have the authority to offer any other work terms to employees—such as the opportunity to work at will—besides those existing under the CBA before the lockout. See Dayton Newspapers, Inc., 339 NLRB at 653 (discussing U.S. Ecology Corp., 331 NLRB 223 (2000) (an employer reaching out to communicate with employees regarding their return to work after a lockout may only state the same terms that existed prior to the lockout; the Board held that additional terms beyond a simple offer of reinstatement erode the Union’s position as ex- clusive representative). Here, the Respondent, in offering a change in employees’ terms that it had no right to offer, circum- vented the Union and engaged in direct dealing in violation of Section 8(a)(5) and (1) on March 5, 7 and 12, 2018. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act and served the relevant times herein as the exclusive labor representative for the following bargaining unit employees employed by the Respondent: All hourly rated production and maintenance employees, in- cluding warehousemen; except employees on jobs covered by contracts with other unions, salaried supervisors, office clerical and other employees excluded by law. 3. By discouraging membership in the Union by telling em- ployees that we will only lockout union members and impliedly solicit their resignations from the Union, the Respondent vio- lated Section 8(a)(1) of the Act. 4. By discouraging membership in the Union by locking out unit employees who are members of the Union while permitting unit employees who are not members of the Union to continue 35 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended working, the Respondent violated Section 8(a)(3) and (1) of the Act. 5. The Respondent violated Section 8(a)(5) and (1) of the Act by: (1) failing to obtain the Union’s consent prior to unilaterally implementing its proposal on a permissive subject of bargaining; (2) ) locking out union members in support of a demand that the Union agree to a contract provision to change the scope of the bargaining unit, a permissive subject of bargaining; (3) bypass- ing the Union and dealing directly with unit employees by solic- iting employees to enter into individual employment contracts offering employees employment during a partial lockout on the condition that they abandon their membership in the Union; and (4) partially implementing its last, best and final offer by estab- lishing new job classifications without reaching good faith im- passe; and failing and refusing to reinstate its locked-out employ- ees without giving the Union clear conditions for reinstatement. 6. The aforementioned unfair labor practices affected com- merce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act, including making whole unit employees whom it discriminatorily locked out from March 12 through 21, 2018 for any loss of earnings and other benefits. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended35 ORDER The Respondent, Tecnocap LLC, Glen Dale, West Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging membership in the Union by telling employ- ees that the Respondent will only lockout union members and impliedly soliciting their resignations from Union; (b) Discouraging membership in the Union by locking out unit employees who are members of the Union while permitting unit employees who are not members of the Union to continue working; (c) Failing to obtain the Union’s consent prior to unilaterally implementing its proposal on a permissive subject of bargaining; (d) Locking out union members in support of a demand that the Union agree to a contract provision to change the scope of the bargaining unit, a permissive subject of bargaining; (e) Bypassing the Union and dealing directly with unit em- ployees by soliciting employees to enter into individual employ- ment contracts offering employees employment during a partial lockout on the condition that they abandon their membership in the Union; Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (f) Partially implementing its last, best and final offer by es- tablishing new job classifications without reaching good faith impasse; (g) Failing and refusing to reinstate its locked-out employees without giving the Union clear conditions for reinstatement, and; (h) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectu- ate the policies of the Act. (a) Make whole those employees who were unlawfully locked out from March 12 through March 21, 2018, for any loss of earn- ings and other benefits they may have suffered by reason of the discrimination against them by paying them a sum of money equal to the amount they normally would have earned from March 12 through March 212, 2018, less net interim earnings, with backpay to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons, 283 NLRB 1173 (1987). (b) Remove from its files any reference to the unlawful lock- out as it pertains to each affected employee and notify the em- ployee in writing that this has been done and that the lockout will not be used against him/her. (c) Within 14 days after service by the Region, post at its Glen Dale, West Virginia facility copies of the attached notice marked “Appendix.”36 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Re- spondent’s authorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its em- ployees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pen- dency of these proceedings, the Respondent has gone out of busi- ness 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 em- ployed by the Respondent at any time since March 5, 2018. (d) Within 21 days after service by the Region, file with the Regional Director for Region Six a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply. Dated, Washington, D.C. April 5, 2019 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 36 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the The National Labor Relations Board has found that we violated 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 be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT interfere with, restrain, or coerce you in the ex- ercise of the above rights. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW), AFL–CIO, CLC (Union) is the employees’ representative in dealing with us regarding wages, hours and other working conditions of the employees in the following unit: All hourly rated production and maintenance employees, in- cluding warehousemen, except employees on jobs covered by contracts with other unions, salaried supervisors, office clerical and other employees excluded by law. WE WILL NOT solicit your resignations from membership in the Union. WE WILL NOT discourage membership in the Union by permit- ting employees who have resigned from the Union to work while locking out employees who are union members. WE WILL NOT select for lockout our unit employees who are members of the Union while permitting our unit employees who are not members of the Union to continue working during a par- tial lockout. WE WILL NOT bypass your Union and deal directly with you by offering you employment during a partial lockout on the con- dition that you abandon your membership in the Union. WE WILL NOT fail to notify the Union during a partial lockout of the terms under which the partial lockout could be ended. WE WILL NOT make changes to the scope of your bargaining unit without first obtaining the consent of your Union. WE WILL NOT lock out union members over our demand to change the scope of your bargaining unit. WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act. WE WILL make whole those employees whom we selected for lockout for all losses they suffered because of our having unlaw- fully locked them out from March 12, 2018 through March 21, 2018. TECHNOCAP LLC United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” TECNOCAP LLC 15 The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/06-CA-216499 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.