Tecnocap LLC

National Labor Relations Board - Board Decisions

Sep 16, 2019

368 NLRB No. 70 (N.L.R.B. 2019)

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 (4th Cir. 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.