Daycon Products Company, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 15, 2011

05-CA-035687 (N.L.R.B. Feb. 15, 2011)

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Upper Marlboro, MD
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
DAYCON PRODUCTS COMPANY, INC.
Case Nos. 5-CA-35687
and 5-CA-35738
5-CA-35965
DRIVERS, CHAUFFEURS AND HELPERS LOCAL UNION 5-CA-35994
NO. 639, AFFILIATED WITH INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Daniel Heltzer, Esq., Sean Marshall, Esq. and Crystal Carey, Esq., Counsel for the General
Counsel.
John Mooney, Esq., Mooney, Green, Saindon, Murphy & Welch, P.C., Counsel for the Charging
Party.
Mark Trapp, Esq. and Paul Rosenberg, Esq., Epstein, Becker & Green, P.C., Counsel for the
Respondent.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on
November 17, 18, 19 and 22, 20101 in Washington, D.C. The Consolidated Complaint herein,
which issued on September 28, 2010, was based upon unfair labor practice charges that were
filed by Drivers, Chauffeurs and Helpers Local Union No. 639, affiliated with International
Brotherhood of Teamsters, herein called the Union, on April 2, April 29, July 14 and July 26. The
Consolidated Complaint alleges that Daycon Products Company, Inc., herein called the
Respondent and/or the company, in about December 2009, unilaterally subcontracted snow-
thrower repair work and, on about April 23, implemented its last bargaining offer without first
bargaining with the Union to a good faith impasse. The Complaint further alleges that since
about April 26 certain employees of the Respondent have engaged in a strike that was caused
and prolonged by the above unfair labor practices engaged in by the Respondent and, although
the Union on about July 2 made an unconditional offer on behalf of the employees to return to
work, the Respondent refused to reinstate some of the employees to their former, or
substantially equivalent positions of employment. By this conduct it is alleged that the
Respondent violated Section 8(a)(1)(3)&(5) of the Act.
I. Jurisdiction and Labor Organization Status
The Respondent admits, and I find, that it has been an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act, and the Union has been a labor
organization within the meaning of Section 2(5) of the Act.
II. The Facts
The Respondent has been engaged in the business of manufacturing and distributing

1 Unless indicated otherwise, all dates referred to herein relate to the year 2010.
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janitorial, maintenance and hardware supplies at its office and place of business in Upper
Marlboro, Maryland, and the Union has represented certain of its employees since about 1973.
The most recent contract between the parties was effective for the period March 3, 2007
through January 31. The principal issue herein is whether there was an impasse in the
negotiations between the parties thereby permitting the Respondent to unilaterally implement its
last bargaining offer, as it did on April 23. However, there is the separate allegation that in about
December 2009 the Respondent unilaterally subcontracted snow-thrower repair work, without
prior notice to, or bargaining with, the Union, in violation of Section 8(a)(1)(5) of the Act.
A. Subcontracting Allegation
In addition to the Respondent’s drivers, warehousemen and other unit employees, the
Union represents the Respondent’s repairmen at its facility in Upper Marlboro. Douglas Webber,
the business agent for the Union and its chief negotiator, testified that he learned that on about
March 16 the Respondent subcontracted snow thrower repair work that is normally performed
by the Respondent’s employees represented by the Union and the Respondent never informed
the Union that the work was being subcontracted, nor did they attempt to bargain with the Union
about the subcontracting. The contract, at Article 1, Section C, states:
The Company may subcontract work where all regular full time employees are working
and during periods of peak demand and/or in accordance with the employer’s past
practice, provided that subcontracting shall not be used as a subterfuge to violate the
other provisions of this agreement.
In addition, Article 6B(3) states, inter alia:
Shop- whenever there is an emergency, road service over 48 hours old, or if the que
(total unrepaired equipment in the house) goes over seventy five (75), then overtime
shall be required and the employer shall assign overtime as necessary to reduce the que
below seventy five (75) and/or to complete the repairs as necessary.
Webber has been covering the Respondent on behalf of the Union for about six years. He
testified that he is unaware of any previous situation where the Respondent has subcontracted
repair work normally performed by its unit employees.
Dale Windsor has been employed as a technician in the Respondent’s repair shop for
twelve years, most recently as senior technician and shop foreman and is a member of the
Union. During the Winter of 2009-2010 he and the three other three repair shop technicians
performed work on snow thrower machines. As is typical for this work, these machines
sometimes required replacement parts, which the Respondent purchased from a number of
different vendors. One of these vendors is Tecumseh, an engine manufacturer, which Windsor
understands is now out of business. Because of the large amount of snow during the Winter of
2009-2010 there was more repair work than usual on snow throwers and Windsor and the other
repair technicians worked full time during this period and reported for work on a few weekends
for mandatory overtime. In addition, due to the large number of snow throwers that were brought
to the shop for repairs, some of them were stored outside while awaiting repairs. He told John
Poole, Respondent’s President, that the reason for the presence of all the snow throwers was
the difficulty that Respondent was having obtaining carburetors, belts and other parts for the
machines. He testified that he was not aware, at the time, that the Respondent sent snow
throwers to another company for repair work. Windsor testified further that there are two types
of equipment on which the Respondent does not perform maintenance or repair work- pressure
washers and propane, the former because of parts issues and the latter because of liability and
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certification issues.
Poole testified that repair work has been subcontracted continuously throughout the term
of the contract and there has never been a grievance filed regarding this subcontracting. He
testified that because of the harsh weather conditions during the Winter of 2009-2010, “we were
up to our ears in snow blowers,” the repair area was filled and they were out on the loading
dock. One of the snow throwers that they sell and repair was manufactured by Tecumseh,
which had gone out of business, and it was becoming difficult to obtain parts for these
machines. He testified: “We actually don’t look to subcontract work unless we have to. We had
run out of snow blower parts. Marlboro Mower had carburetors for our machines, but they
wouldn’t sell them to us at this point because they were limited. They wanted the work.” Some
of these snow throwers had been sitting in the shop for about three months before being sent to
Marlboro. Both before and after these machines were sent to Marlboro, everybody in shop was
working full-time; in fact, the employees were working mandatory overtime.
Christopher Moore, the parts manager for Marlboro Mower, testified that they sell and
service outdoor equipment. He testified that in the past, Marlboro sold the company parts and
material. In about March, they repaired approximately twelve snow throwers for the company.
Prior to that time, a woman who works in the office for the company, called Marlboro and asked
if they could repair some snow throwers for them and they told the company to bring in six at a
time. The primary problem with the machines was that they had not been used in a long time
and they needed parts, cleaning and repair. He testified that Marlboro did not refuse to sell the
needed parts to the company, nor did they insist on performing the repair work. In fact, Marlboro
would have preferred to simply sell the parts to the company and let them perform the repair
work, because the machines take up a lot of space, and they get paid faster when they simply
sell the parts. Most of the repair work on the snow throwers was completed by April.
B. Bargaining
As stated above, Webber was the chief negotiator for the Union and was often assisted
by employees who were members of the Union committee. He was also the chief negotiator for
the Union during the negotiations that resulted in the 2007 to 2010 contract. The chief negotiator
for the Respondent was attorney Jay Krupin, assisted by another attorney, Paul Rosenberg.
Also present, at times, were Poole, Howard Cohen, Respondent’s owner, Joe Giusto, the Vice
President of Manufacturing, and Jodie Kendall, the HR Director. Prior to the start of
negotiations, Webber sent an information request to the Respondent to assist him in
negotiations and, prior to the start of negotiations, he received a response from the Respondent:
a seniority list containing the job classifications and rates of pay for the unit employees.
The first bargaining session took place on November 4, 2009. Poole began the meeting
talking about the thirty six year bargaining history and said that the Respondent wanted to try
something different; that they were interested in a performance based package, tying wage
increases to performance and productivity. Webber responded that they had always had an
hourly rate of pay and he didn’t know if he was interested in changing to a performance based
system. The Respondent caucused and when they returned Poole said that the Respondent
was not talking about taking anything back, but wanted to implement a performance based
package, so if the company did well, the workers would also do well. If the company did not do
well, there would be no increases, but no specifics were provided. Krupin then said that “…they
can’t commit to having a contract that looked like the last one.” Webber understood him to be
referring to wages. Webber then distributed the Union’s non-economic proposals consisting of
fifteen proposals on the subjects of seniority, work week, wages, vacations, temporary
employees and duration. Poole then proposed changing the way that negotiations have
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proceeded and setting up a “partnership” with incentive provisions, but the Union said that they
had no interest in incentive pay based upon performance. In addition, at this meeting, Krupin
said that he wanted to see the Union’s economic proposal early enough so that he would be
able to analyze it prior to the next bargaining session.
By letter to Webber dated November 16, 2009, Rosenberg enclosed a document setting
forth the non-economic issues that the parties had agreed upon on November 4, 2009, stating:
“…the appropriate next step in the bargaining process is to begin discussing the core topics of
wages, health insurance, and retirement investment vehicles.” He also stated that “any decision
related to the principal financial items must be carefully analyzed” and asked Webber to send
his economic proposals to the Respondent by December 1, 2009. By e-mail to Rosenberg dated
November 16, 2009, Webber said that the Union was prepared to continue discussing the non-
economic issues, as well as the economic issues at the next meeting on December 9, 2009.
The second meeting took place on December 9, 2009. Webber stated that he wanted it
to be clear that even if they discussed economic proposals, it was understood that unresolved
non-economic issues were still open, and he distributed the Union’s economic proposals
containing eighteen proposals on subjects such as work week, holidays, wages, personal days,
vacations, health and welfare, retirement and duration. Union Proposal Number 9 included a
new top wage scale (“top rate”) for each job classification, together with a catch up
(“progression”) rate for those not at the top rate2. The proposed wage scale represented an
increase of seventy five cents an hour over the top rate existing in the prior agreement, and the
progression rate provided that a new employee would be paid 85% of the top rate for the first
year of employment, increasing to 90% on the first anniversary of employment, 95% on the
second anniversary, and 100% of the top rate on the third anniversary of employment. The
proposal also provided that all employees who were employed by the Respondent prior to
February 1, 2008 would immediately go to the top rate. Webber was asked whether wage
progression (also referred to as catch up) was a very important issue during negotiations, and
he testified: “It was very important.” After receiving the Union’s proposal, the Respondent
caucused, and when they returned they said that they would have to “cost it out” and the
meeting ended. Poole testified that he calculated the Union’s proposal as potentially costing the
company more than 20% over the prior agreement.
The parties next met on December 15, 2009. Rosenberg opened the meeting by saying
that they did a detailed analysis of the Union’s proposal and estimated that it would cost three
million dollars, and felt that it was out of touch with the economics of the day and “…didn’t
believe it was prudent to give even…a counteroffer.” He also said that, although they were not
proposing reductions, any increases would be tied to efficiencies and improvements. Rosenberg
then gave Webber a contract to serve as its proposal. This proposal had cross outs through the
existing wages provision (from the 2007-2010 contract) and added a provision entitled
“Economic Distress” stating: “If average revenue over the last 12 month rolling period decreases
by 5% or more then the economic increases that shall be effective during the life of this
Agreement will be postponed until revenue reverts to pre-distress levels.”
The next meeting took place on January 5. During this meeting Krupin gave Webber a
two paged document entitled: “Agenda for Negotiations” listing eight subjects-Cleaning of
Building, Discipline, Health and Welfare, Wages, Economic Distress, Scheduling, Licensure

2 The 2007 through 2010 contract generally provided for 55 cents wage increases annually,
plus an additional increase of 33 cents, 35 cents and 40 cents for the first, second and third year
of the agreement for all employees hired after February 1, 2004, who were not at the top rate.
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Requirements and Duration. Webber testified that this was not a series of proposals; rather it
was a listing of subjects that the Respondent wanted to discuss and, in fact, the Agenda for
Negotiations does not set forth any proposals, it simply lists the subjects. At this meeting the
Union stated that it would not accept an economic distress clause. At the conclusion of the
meeting Krupin said that he would like to narrow the scope of the negotiations and deal with
wages and economic issues and wanted to limit the scope of future negotiations to four to six
issues. Webber responded that he was not sure that he could agree to that at that time and the
meeting ended.
The parties next met on January 19. At the beginning of the meeting Krupin gave
Webber a three page document entitled Employer Proposals. It proposed wage increases of 1%
on the date of ratification of the contract, and additional 1% increases one year and two years
from the date of ratification. In addition, employees would be eligible to receive “an annualized
bonus payment of up to 3% of their base hourly earnings” if they reached or exceeded certain
productivity criterion. Krupin said that the bonus standards were not yet finalized and were still
being worked out. The Union caucused, and when they returned Webber said that they still
wanted three years to the top rate, they wanted cents on the dollar increases rather than
percentages so that employees at the lower rate and those at the higher rate would receive the
same increase, they were not interested in productivity based compensation, they wanted to
standardize the work week, and health and welfare was still on the table. Krupin responded that
they were not interested in cents on the dollar increases without performance requirements,
they wanted to eliminate the catch up provision present in the existing contract, and they could
not agree to the Union’s health and welfare proposal. Krupin submitted an Economic Distress
proposal, which was almost identical to the proposal discussed on December 15, 2009, and the
Union rejected this proposal.
The parties met again on January 29. In addition to the Union committee, Tommy Ratliff,
Union President, and John Gibson, Secretary Treasurer, were present at this meeting for about
fifteen to twenty minutes. Krupin gave Webber a new Employer’s Proposal, which provided for a
2% wage increase on the date of ratification, and 1% increases one year and two years from
that date for employees at the top rate. In addition, it provided for catch up as well: “However,
employees who on the Effective Date of this Agreement are not at the top base wage rate in
their respective classification shall receive the following increases until reaching the top base
wage rate.” It provided 3% on the date of ratification and 1.5% in each of the following two
years. The proposal also contained the Economic Distress proposal, but the production-based
incentive provision was gone. The Union then gave the Respondent a counterproposal to its
Health and Welfare proposal deleting the second sentence stating: “During each year of this
Agreement this contribution cost will not increase by more than $0.03 per hour for single
coverage and $0.11 per hour for family coverage” and replaced it with “Any additional cost will
be borne by the Company.” Webber testified that Krupin said that the wages for current
employees would not be reduced if their proposed rates of $20.92 for single and $85.99 for
family were used and “our proposal basically says the same thing.” Based upon what Krupin
said, Webber felt that they had an agreement on health and welfare because under both
proposals the rates and benefits would be frozen. The Union then repeated its objection to
percentage increases, again saying that they wanted cents on the dollar increases. Poole
responded that employees with longer job tenure deserved a larger increase and Webber said
that employees with three years seniority were just as valuable as employees with ten years
seniority. During this meeting the Union gave the Respondent a new list of economic proposals
in which they withdrew certain proposals regarding the work week, maintained the wage
proposal of seventy five cent increases each year, and modified the progression proposal to be
85% in the first year, 90% the first anniversary, 95% the second anniversary, and 100% the third
anniversary of the date of hire. During that meeting, Gibson told Poole that the catch up
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provision was one of the Union’s primary objectives in the negotiations.
Poole testified that at this meeting, Webber and Krupin stepped out of the room together
and when they returned they said that health and welfare was resolved and that the company
would take the bonus proposal off the table. He also testified that the company’s economic
distress proposal set the bar as a drop of 5% in company revenue, and in his thirty years with
the company, that had never occurred, but the Union rejected this proposal. In addition, to make
the proposed wage increases more palatable to the Union, the company translated the
percentages into cents on the dollar- 1% equals 17 cents, 2% equals 34 cents.
By letter dated February 17, Krupin wrote to Webber:
During the course of our negotiations over the terms of a new collective bargaining
agreement at Daycon Products Company, Inc. (“the Company”), we have pared down
the issues for discussion. Unfortunately, however, we have been unable to bridge an
ideological divide on the core issue of wages.
At our last session the Company presented a revised proposal designed to address the
Union’s concern regarding the wage differential between employees based on their
seniority. This position would allow those individuals who are not at the top base wage
rate within their respective classification to receive a greater wage increase during each
year of a new contract than their more senior counterparts. To our surprise, you
emphatically rejected this proposal by proclaiming the Union is “not interested in
anything less than a three year wage progression.” Furthermore, the Company proposed
cents on the dollar increases equating to one and a half percent (1.5%) to three percent
(3%) during an agreement’s duration. In stark contrast, the Union has maintained its
original position which if accepted amounts to approximately an eight percent (8%) wage
increase during each year of a contract.
The Union’s viewpoints regarding wages suggest we are still very far apart from
reaching a deal. In light of this, a recap of the parties’ current positions is in order.
Accordingly, we have prepared the enclosed chart setting forth the status of the open
items. Within the chart we have included a blank column between our respective
positions, which should be used utilized [sic] as a mechanism to determine how a
resolution could be reached on these matters. Please let us know what movement the
Union is willing to make such that we can fill in this blank column, and thereby move
towards reaching an agreement.
The Status of Open Items lists four subjects: wage increases for employees at top rate, wage
increases for employees not at top rate, economic distress clause, and creation of helper
classification.
The next meeting took place on February 18. Webber began the meeting by listing
pending grievances and asked whether the Respondent would be interested in trying to resolve
some of them. Krupin responded that this was not a grievance meeting and he wanted to move
on with negotiations. Krupin then gave Webber two documents, the company’s proposals dated
February 18, and a list of tentative agreements stating, “Set forth below are the items that the
parties tentatively agreed to on November 4, 2009.” Krupin also said that the company had
made substantial movement, but he didn’t feel that the Union was doing the same, and he
handed Webber another Employer’s Proposal on wages. It provided that employees would
receive a 40 cent hourly wage increase upon date of ratification of the contract, and another 20
cents one year from that date and two years from that date. The proposal also states: “However,
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employees who on the Effective Date of this Agreement are not at the top base wage rate in
their respective classification shall receive the following increases until reaching the top base
wage rate,” 60 cents on the date of ratification, and 30 cents one year and two years from that
date. Another change is contained in the Economic Distress proposal, which was changed to a
six percent decrease in gross revenue (from five percent) before its restrictions kick in. The
Union rejected these provisions as well as the duration provision contained in that proposal.
During the course of the meeting the Union withdrew the following proposals: certain work week
proposals, including guaranteed hours for weekend work and funeral leave, and wages (an
increase in premium pay for night shift work); in addition, the Respondent rejected some of the
Union’s proposals relating to the work week and holidays, and Webber reduced the Union’s
wage increase demand from seventy five cents to sixty five cents. During this meeting Krupin
asked Webber, “Is it absolute in your mind that you need a three year catch up?” and Webber
answered yes. At about 4:45 that day Krupin gave Webber what he termed the Respondent’s
“Best Offer.” Under this proposal, the hourly wage increase that employees would receive was
forty cents on the date of ratification and another forty cents an hour one year and two years
from that date. In addition, employees not at the top rate would “receive the following increases
until reaching the top base wage rate.” The increases were sixty cents on date of ratification and
one year and two years from the date of ratification. Poole testified that prior to the beginning of
negotiations, he surveyed the market and the company’s situation, and he targeted between 3%
and 4% as an appropriate and fair wage increase. This “best” proposal presented at this
meeting was very close to 3%. When Webber asked Krupin what he meant by “best offer,”
Krupin said that if they were going to agree to a deal, “it has to be something very close to this.”
Webber responded that it would be hard to get an agreement, and rejected this wage proposal,
as well as the Economic Distress provision and the change in the date of ratification of the
contract. Webber asked Krupin if that was the Respondent’s last, best and final offer or just its
best offer and Krupin answered, “What difference does it make?” That ended the meeting.
Poole testified that he didn’t view the meeting as productive because while the company was
moving, the Union only moved by ten cents.
After this meeting Webber prepared a Meeting Notice for the Union to be held on
February 27. The purpose of the meeting was stated as: “Contract Update and a Strike Vote
Will be Taken,” and the notice was posted on the bulletin board at the Respondent’s facility.
Approximately thirty employees attending the meeting and Webber informed them that the
Respondent had just given them what it referred to as its best offer. He said that the four main
open issues were pension, wages, catch up wages and the economic distress provision and
that the Union was going to ask a federal mediator to get involved in the negotiations, but that
sometimes a strike vote works as a tool to get a company to bargain more seriously. He told the
members, “It’s a first step preparation. We don’t want to strike…if we don’t have to. We were
using it as a tool to continue bargaining.” The members voted to authorize the Union to strike.
The next bargaining session took place on March 17. In addition to the Union committee
and the Respondent’s committee, federal mediator Gary Eder attended the meeting. At the
commencement of the meeting Webber handed Krupin a document entitled: “Union Response
to ‘Company’s Best Offer’” which stated that the Union rejected the Respondent’s wage
proposal submitted at the prior meeting and that the Union’s position was the wage proposal
that it presented at the prior meeting (sixty five cent increase), and that it rejected the
Respondent’s economic distress provision and the contract duration provision. As to the latter,
the Respondent proposed that the contract would be effective from the date of ratification, while
the Union wanted it effective from the date the prior contract expired, February 1. Webber then
gave Krupin a listing of what he believed were the open non-economic issues which related to
supervisors performing bargaining unit work, seniority, weekend overtime work and the contract
duration provision. Webber also gave Krupin a listing of what the Union believed were the open
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economic issues, including premium pay for Sunday work, holiday pay, an increase in vacation
days, retirement, the duration provision of the agreement, and wages and catch up wages,
including the catch up provision that employees hired prior to February 1, 2007 shall go to the
top rate of pay immediately. Webber told Krupin that he hoped that the Respondent would
respond to these economic and non-economic issues. Webber also told him that he had some
question about health and welfare which he thought had been agreed to, and the timeliness of
disciplinary actions, which was a new proposal. As to the former, he said that while the Union
assumed that it had previously been agreed to, all the employees received letters from the
Respondent stating that the company had agreed to maintain the current level of benefits as
provided by the contract and had agreed to not increase “this year’s employee health
contribution.” Webber told Krupin that he believed that they had previously agreed that that
there would be no increase in the employees’ contributions for the life of the agreement. The
parties caucused and when they returned, “…basically, the company didn’t have anything.”
Webber and Ratliff spoke and, “It doesn’t appear that anything is going to happen today and we
called it a day.” Webber’s notes for this meeting states: “Very far apart.”
Poole testified that at this meeting the Union rejected all aspects of the company’s best
offer and stood by its wage offer of 65 cents an hour. After caucusing with the mediator and
deciding to take one issue at a time, the company decided to discuss the top rate and
progression first.3 Poole began to discuss why the company was not agreeable to this proposal,
when Ratliff stood up, told him that he had the Union’s proposal and walked out of the
mediation. That was the end of that meeting.
Ratliff testified that he received a telephone call from Krupin on March 26 asking if they
could have an off-the-record meeting: “We were two level headed guys and he believed that we
could get a contract.” Webber, Ratliff and Gibson felt that “it was a good sign” that the
Respondent asked for the meeting. The parties met as scheduled at a restaurant, Webber,
Ratliff and Gibson for the Union, and Krupin, Rosenberg and Poole for the Respondent. Webber
did not take any notes of this meeting and, as far as he knows, nobody else did either. Ratliff
opened the meeting by saying you called us here, let’s see if we can get this thing moving.
However, Webber testified, “Nothing really happened…there weren’t any thoughts or ideas put
on the table.” The parties caucused and Webber, Ratliff and Gibson decided that they had to do
something “to move this forward” so, even though they did not like long term contracts,
especially during a recession, they decided to propose a four year contract and a four year
progression period to spread the progression over a four year period. Webber testified that while
this four year term was “open for discussion,” it was never, officially, a proposal. The
Respondent’s representatives caucused, and when they returned, Krupin said, “What if we
created an artificial substandard top rate and have that be achievable during the life of the
agreement?” As an example he said that the company could establish an artificial top rate, such
as $18 rather than the real top rate that the lower paid employees would progress to. The Union
side caucused and “were pretty optimistic.” They decided to return and propose a five year
contract together with a five year progression period, and that is what Webber proposed when
they returned, saying that they felt that it was “a major concession” but one that they were
willing to make in order to get a deal. Krupin said that they needed time to “crunch the numbers”
and they would get back to them the following week, and the meeting ended.
Ratliff testified that he opened the meeting by saying, “You wanted an off-the-record

3 Poole testified that based upon yearly increases of 65 cents an hour, together with the
progression proposal presented by the Union, newly hired warehouse employees would receive
wage increases of almost 45% over three years.
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meeting, so what do you have?” Krupin said, “Your proposal is a little too rich for us.” After the
Union caucused, Webber spoke about a four year contract and four year progression; the
Respondent’s people caucused and Krupin said, “What about a two tier or artificial rate?” He
gave as an example from $18 to $20. The Union caucused and felt that the company was
moving; although they never rejected the Respondent’s “artificial” rate idea, they decided to
propose a five year contract with five year progression and returned and spoke about it. Krupin
said that the company would have to crunch numbers, and he would get back to them about
April 6. Webber, Ratliff and Gibson left this meeting feeling optimistic about the negotiations;
however, nobody from the company contacted Webber or Ratliff on or about April 6. Gibson
also testified that after Ratliff told him about the call from Krupin on March 26: “We were very
optimistic about getting the ball rolling again.” At the beginning of the meeting Krupin asked if
the Union was “married” to the wage progression idea, and they said that they were. After
caucusing, Webber “pitched” the four year wage and progression idea to the Respondent and
they caucused. When they returned, Krupin proposed the concept of an artificial rate of
approximately $18 an hour. The Union caucused and were optimistic about agreeing to a wage
scale. He testified that “…since they were showing some movement,” the Union decided to
propose a five year wage and progression “to spread out the cost,” which they did, but the
Union never either accepted or rejected the company’s two tier proposal. After some discussion,
Krupin said that they had to crunch the numbers and he would get back to them.
Poole testified that at this meeting the Union presented an idea for a four year contract
and progression, but “we had absolutely no interest” because “we were just chasing the number
down.” The company then proposed a “contract” rate (also referred to as an artificial rate).
Under this proposal, the current hiring rate for warehousemen was $12 and the top rate was
envisioned to be about $20: “What if we could agree on a contract rate of $18?” In other words,
the employees receiving the top rate would continue to receive an annual increase. In addition,
employees not at the top rate, rather than progressing from $12 to a $20 top rate, would
progress to $18. But the Union “had no interest in it.” There was another caucus and the Union
returned with a five year contract and progression proposal, but the company had no interest in
that proposal.
The next meeting took place on April 22. Webber, Ratliff and the Union’s bargaining
committee were present, as were Krupin and Rosenberg, the Respondent’s bargaining
committee and the mediator. Ratliff opened the meeting by saying that on April 1 they were told
that the company would crunch the numbers and that the Union would hear from them by April
6, but they never heard from the company. Webber said that they were there to negotiate a new
contract, but that it’s hard to do that when the company says that they will contact them, but
never does. Krupin then said that the company was only interested in a three year contract and
asked if the Union was “wedded” to progression, and Webber said that they were. Webber also
testified that Krupin asked if the Union was still wedded to a three year agreement and he said
that they weren’t, as they had discussed a four or five year agreement and progression at the
prior meeting. Krupin then said that the company was going to go down the hall to crunch
numbers and the Union people waited for them to return. After a while, the mediator said that it
may take some time and recommended that the Union representatives go to lunch. When they
got to the parking lot they realized that all the cars belonging to the company representatives
were gone. The mediator then confirmed that the company representatives had left and the
Union representatives left and returned to their office. Later that day, Webber received a letter
from Krupin:
It has become apparent that Teamsters Local 639 (“the Union”) and Daycon Products
Company, Inc. (“the Company”) are unable to bridge their ideological divide on the core
issue of wages. Unfortunately, since bargaining commenced in November 2009, while
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the Company has substantially revised its proposals on numerous occasions, the Union
has adhered to the unrealistic stance that a deal is only attainable if all employees are
paid at the same “top rate” at the end of the contract’s term. The Union’s immovability on
this issue has precluded negotiations from advancing forward.
The last two meetings in the presence of the federal mediator demonstrated the depth of
the parties’ divide. At both of these sessions because the Union reiterated that it was
wed to the philosophy of all employees being paid at the top rate at the end of a
contract’s term no progress towards reaching an agreement was made.
Based on the Union’s intransigence, and the vast gap between the parties’ positions, it is
clear negotiations are deadlocked. Therefore, the parties are at an impasse in reaching
a new agreement and the Company will proceed accordingly.
On the same day, Webber responded to Krupin’s letter:
Your latest letter is perhaps the best piece of fiction I have read in quite some time. As
usual, it contains numerous inaccuracies and misstatements. You are very well aware
that during the most recent discussions with the Federal Mediator, the Union made a
reasonable and rational proposal to resolve the bargaining logjam. If you had agreed to
that, there were numerous issues that would have allowed for movement by the Union.
Instead, Daycon elected to keep the same proposal on the table that has been for the
last three months so that we could not make progress.
We make no apology for wanting our members to have a realistic chance to obtain the
top contractual rate in the agreement. The Company’s position basically establishes an
illusory top rate, because it is almost impossible to attain. In other words, you want to
keep moving the goal line.
Finally, when we left the meeting earlier today, the Company said it needed to “crunch
numbers” in order to respond to the comments that the Union made. We have not
received any response at this point. Unless, of course, your self serving and inaccurate
correspondence is intended to be the response. If that is the case, I think we can
assume that you did not bother to do any financial analysis and simply decided to launch
your correspondence.
You can unilaterally declare whatever you want. We all know the actual facts
Ratliff testified that at the beginning of the April 22 meeting he asked Krupin, “Jay, what
happened? We were promised that you were going to get back to us.” Krupin responded: “I’m
here now.” Webber then summarized that the Union went to a four year contract and
progression and to a five year contract and progression. He also said, “We had health on the
table, we had pension on the table. We had wages on the table and we are prepared to move.”
Krupin said that he would need to crunch the numbers. After they left, Eder told them that it
might be awhile before the company people return and they should go for lunch. When they got
to the parking lot they realized that the company representatives had left. They told Eder, who
was surprised, thanked him and they left. After seeing Krupin’s letter of April 22, he instructed
Webber to respond to it. On the following day, Webber told him that he had spoken to
employees who said that the company held a meeting and told the employees that they were
going to implement their last offer. Ratliff told Webber that since the company had already
declared impasse and made unilateral changes in the employees’ employment conditions,
“…we have no other choice but to take a job action against the company.” Eugene Brown, a
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member of the Union’s bargaining committee, attended the April 22 meeting. He testified that
the Union proposed a “five year deal” and Krupin said that they would take a look at it and they
left the room. Webber, Ratliff and the Union committee decided to get something to eat and
return to continue the negotiations and, when they got to the parking lot, they realized that the
company representatives’ cars were gone. They told Eder that the Company representatives
had left, and they left.
Poole testified that Ratliff began this meeting with a statement that he felt that the April 1
meeting was positive and encouraging. Poole testified: “I’m thinking on the flip side. We both
rejected each other’s proposals. I didn’t know what was so positive about it…” Krupin reiterated
the company’s prior proposal about the “artificial” rate of $18, but “the Union had no interest in
it.” Webber then spoke about the Union’s idea of a four or five year contract and progression
discussed at the April 1 meeting, but nobody was interested in those ideas. Krupin asked
Webber whether the Union was “wedded” to the concept of catch-up by the end of the contract
for all existing employees, and Webber answered yes. The company then asked to caucus.
Poole testified that it was at that point that he decided that there was an impasse in the
negotiations:
…I was pretty well done. I didn’t know where we would go. We…just had three
consecutive meetings in a row, there was no movement, and the Union was married to
their position, and I didn’t think it was prudent for the Company to move forward…I felt
that the parties were deadlocked and it provided an opportunity for the Employer to
provide a wage [sic]. Our guys had waited three months without an increase…and I felt it
was appropriate to give a wage increase.
He testified that both parties were in the same position that they had been for two months on the
progression issue and this issue was relevant to the other issues and “was beyond what was
prudent for the for the Company to provide, and they had other proposals out there that was
going to make it even worse…” After making the decision that the parties were deadlocked, he
decided to leave, and the company’s representatives left without notifying the Union’s
representatives. He testified further that when the company’s representatives left the meeting on
that day to caucus, they never said that it needed to “crunch the numbers.” Kendall testified that
Webber brought up the five year agreement and said that it wasn’t a proposal, that it was
“exploratory and nobody was interested in it.” Krupin then asked Webber if he was wedded to
the top rate by the end of the contract, and Webber answered yes.
C. The Strike
Brown testified that he reported for work on April 23 at about 7 a.m. At about that time,
he and the other drivers were told that there was to be a meeting of the company’s drivers. In
addition to seven or eight drivers, Poole, Kendall and Cohen were present. Poole told the
drivers “…that they were implementing the 40/60 as of right now.” Poole asked if there were any
questions, and Brown told the drivers, if you have any questions, do it now, but none of them
asked any questions. When he got to his truck he called Webber and told him what was said at
the meeting. Webber testified that Brown called him on the morning of April 23 and told him that
the company held a meeting of drivers that morning and told them that they had declared an
impasse in negotiations and that they were implementing the terms of their best offer. Shortly
thereafter, Webber met with Ratliff and Gibson and decided that the company left them no
alternative, but to put them on strike. He did this because the company “…had violated the law,
they declared impasse improperly.” Strike signs were printed stating: “ON STRIKE DAYCON.
UNFAIR VIOLATES FEDERAL LABOR LAWS TEAMSTERS UNION LOCAL 639.” The strike
began on April 26. Webber got to the facility that morning at 5:30 a.m. in order to speak to the
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employees before they began work. He and Ratliff told the employees that the company had
violated labor laws by declaring impasse and implementing the contract.
Krupin wrote to Webber on April 26 reiterating his position that while the company had
made “numerous and significant concessions” the “Union has refused to budge from the wholly
unrealistic position of requiring the Company to give approximately half the bargaining unit at
least a 20% wage increase during the duration of a new contract.” He also stated that the Union
failed to respond to the company’s “best” offer of February 18, and never wavered from its
stance on the core issue of wages. Webber responded on April 29 with a three page letter
defending its actions in negotiations as well as its insistence on a catch up provision. The letter
ends by referring to the company’s conduct as unwarranted, outrageous and illegal.
On July 2 Webber sent an e-mail to Krupin:
On behalf of all the Daycon employees on strike, we hereby make an unconditional offer
to return to work immediately. The employees will return for work on Tuesday, July 6,
2010.
In addition, Local 639 requests that we continue negotiations for a new Collective
Bargaining Agreement immediately. We are available Tuesday to meet with you and the
employer’s representatives.
Later that day Webber went to the Respondent’s facility and read this e-mail to the Union
members. On the following day he received a response from Krupin: “In receipt of your email
below. We look forward to discussing the issues you raise in your email, but are unavailable on
Tuesday. We are available to address these issue, including your unconditional offer and
continued negotiations, on Wednesday, July 7 at 3 p.m. at our offices.” There was a further
exchange of e-mails between Krupin and Webber in which Krupin asserted that the strike was
an economic strike, while Webber argued that it was an unfair labor practice strike. In addition,
Krupin stated that upon receipt of the unconditional offer to return, the Respondent notified all
those employees who had not been replaced that they were welcome to return and that all
replaced employees were subject to recall as openings became available. In addition, a
bargaining session was scheduled for July 13 at the FMCS offices.
Windsor testified that he reported for work, as usual, on Monday, April 26 and saw picket
signs and learned that the Union had called a strike against the company, and he joined the
strike. At the end of September he received a telephone call from Kendall saying that there was
an increase in work in the repair shop and asked if he was interested in returning to work. He
said that he was, and he reported for work the following morning. Robert Redman, who was
employed by the Respondent as a driver, arrived for work at about 6 a.m. on April 26 and when
he realized that the Union had called a strike, he joined the picket line. He received a letter
dated June 21 from Kendall stating that because of his absence from work due to the “job
action” against the company, he has been permanently replaced. By letter dated September 24,
Kendall informed Redmond that a position for which he was qualified became available and “in
light of the union’s unconditional offer on your behalf to return to work, in accordance with
applicable laws we are recalling you to work.” He returned to work on September 29.
The parties met next on July 13 at the FMCS office in Washington. Webber, Ratliff,
Gibson and some committee members were present for the Union; Krupin, Rosenberg, Poole
and Kendall were present for the company. Eder, the mediator was also present. Krupin began
the meeting by saying, “Do you want me to be direct or do you want me to bullshit you?” He also
said that the company’s position was that the strike was an economic strike and they were
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happy to adjudicate that issue for years. The Union caucused: “We decided that we were going
to put some more things on the table, things that we probably could have done on April 22…”
When they returned, they proposed a five year contract with five year progression, they were
going to “relax” their position on pensions and propose that the company need not join the
Teamster pension plan until the fourth year of the agreement, and they would reduce the hourly
wage increase to fifty five cents. The company caucused for about five minutes and when they
returned, Krupin said: “The last offer is still on the table, three year agreement, progression he
will not agree to. The top won’t happen in the contract. The pension plan is a no. And their
hourly rate is in their last offer.” Poole testified that after caucusing, the Union offered a five year
progression and the pension proposal referred to above. He testified that over the past thirty
years, the Union has been proposing that the company participate in the Teamsters pension
plan and the company has never agreed to that, including at that meeting. As to whether he
believed that this proposal moved the parties closer to an agreement, he testified: “I felt it was
pushing us further apart.” That was the end of the meeting, and there were no further meetings.
D. Replacement Workers
Poole testified that after the employees went on strike the company began hiring
replacement employees at the hourly rates specified in the prior contract; for example, $12.00
an hour for warehouse employees. Kendall testified about the procedure employed by the
company in hiring workers to replace those employees who went out on strike on April 26. All
employees who went on strike and were replaced were sent a letter by the company stating: “In
light of your absence from work due to the job action against Daycon Products Company, Inc.,
you have been permanently replaced by a new employee.” On the other hand, after July 2,
striking employees who were being offered reinstatement were sent the following letter:
As I explained on the phone, a position for which you are qualified has become
available. In light of your union’s unconditional offer on your behalf to return to work, in
accordance with the applicable laws we are recalling you to work.
Pursuant to the governing terms and conditions of your employment, you have five days
from today to report to work. If you fail to report to work within this timeframe, the
available position will be offered to another qualified bargaining unit member who was
replaced as a result of the economic strike against Daycon.
During the strike, each newly hired employee was sent the following letter by Kendall:
We are pleased to invite you to join Daycon Products as a [job]. Your start date is [date].
The…work hours may change; your hours may vary depending upon department needs.
This offer is contingent upon your signing this offer letter, successfully passing the pre-
employment drug screen and favorable results from your background investigation and
reference check. Your immediate supervisor will be…[He] is very excited about the
opportunity to have you join his team. Your responsibilities will be those discussed
during the interview process or as may be assigned.
Your compensation package will include a salary of $12.00 per hour, which will be paid
on a bi-weekly basis. In addition you will be eligible to participate in the Company
Benefits Plan. Details regarding this plan are included in this packet of information.
Should you accept this offer your medical and dental benefits will be effective thirty days
after your initial start date.
…on behalf of all the employees of Daycon Products, we welcome you aboard! Please
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indicate your acceptance of this offer by signing one copy of this letter and faxing it to
me at…Please do not hesitate to contact me at…should you have additional questions
or concerns regarding this offer packet.
Kendall testified that the replacement employees were “accidently” given the non-union
forms in which they acknowledged receiving and understanding the company’s Employee
Handbook. These forms state that they are “at-will employees” and that nothing shall restrict
their right, or the company’s right, to terminate their employment at any time or for any reason.
These forms were signed between April and June. In October, these employees signed the
same form, but with a different third paragraph replacing the “at-will” language:
If the terms and conditions as outlined in this manual conflict with the terms and
conditions as described in the collective bargaining agreement (CBA) with the
International Brotherhood of Teamsters Local 639, then the CBA controls only for those
particular unionized employees.
The replacement employees were also given an Employee Information Form to complete and all
those employees who were hired during the strike checked Employment Status as “Reg. Full
Time.” All of the strike replacements were treated the same as any other employee, and as they
were regular full time employees they were eligible for health insurance, and other benefits.
III. Analysis
The initial allegation is that the Respondent violated Section 8(a)(1)(5) of the Act by
subcontracting the repair work of the snow throwers to Marlboro Mower without first notifying, or
bargaining with the Union. Although it is not critical to my finding herein, I credit the testimony of
Moore over that of Poole and find that Marlboro Mower did not insist on repairing the snow
throwers rather than selling the replacement parts to the company. Although I generally viewed
Poole to be a credible witness, Moore clearly had no reason to lie, and I therefore credit his
testimony that Marlboro Mower was willing to sell the replacement parts to the company and, in
fact, preferred to do so. All the elements of a Section 8(a)(5) violation are present here: the
repair work was unit work and had always been performed by the company’s employees and
the company sent the work out to be performed by others without notifying or bargaining with
the Union. Although the Respondent adduced some testimony that it had subcontracted work in
the past, I credit the testimony of Webber that he was unaware of any prior situation where this
work was subcontracted.
The law is clear that subcontracting is a mandatory subject of bargaining if it involves
nothing more than the substitution of one group of workers for another to perform the same
work and does not constitute a change in the scope, nature and direction of the enterprise.
Torrington Industries, Inc., 307 NLRB 809 (1992); Acme Die Casting, 315 NLRB 202 (1994);
Gaetano & Associates, Inc., 344 NLRB 531, 533 (2005). There was no change in the nature of
the Respondent’s business that caused it to subcontract the repair of the snow throwers; rather,
the Respondent subcontracted these machines to Marlboro Mower because they were sitting in
the repair shop, and it believed that Marlboro could repair the machines faster than its unit
employees. While satisfying its customers and getting the machines back to them is a noble
purpose, the Respondent could have accomplished the same purpose by first discussing the
issue with the Union or assigning additional overtime work to its repairmen. By doing neither,
and subcontracting the repair work to Marlboro Mower, work that had always been performed by
its employees, the Respondent violated Section 8(a)(1)(5) of the Act.
The principle allegation herein is that the Respondent violated Section 8(a)(1)(5) of the
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Act by prematurely declaring impasse on April 22, and on the following day implementing its last
bargaining offer, without first bargaining with the Union to a good faith impasse. It is further
alleged that the strike that the Union began on about April 26 was an unfair labor practice strike
resulting from the Respondent’s implementation of its last bargaining offer, and that the strikers
were therefore unfair labor practice strikers who were entitled to immediate reinstatement upon
offering to return to work. All of these allegations depend upon Counsel for the General
Counsel’s (and counsel for the Charging Party’s) contention that there was no bargaining
impasse on April 22 and 23, when the Respondent declared impasse and implemented its last
bargaining offer.
The parties were clearly involved in hard bargaining and as counsel for the Respondent
argues in his brief, the most difficult issue was the Union’s demand for progression, so that
those employees who were hired at the lowest rate of $12.00 an hour could catch up to the
higher rate within three years of employment. Of course, there is a big difference between hard
bargaining and impasse. In determining whether there was an impasse in negotiations, we
begin with the proposition that the burden of establishing an impasse rests on the party
asserting it, in this situation the Respondent. North Star Steel Company, 305 NLRB 45 (1991). A
lead case on this issue, Taft Broadcasting Co., 163 NLRB 475, 478, stated:
Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the
good faith of the parties in negotiations, the length of the negotiations, the importance of
the issue or issues as to which there is disagreement, the contemporaneous
understanding of the parties as to the state of negotiations are all relevant factors to be
considered in deciding whether an impasse in bargaining existed.
As regards the last of these factors, the “contemporaneous understanding of the parties as to
the state of the negotiations,” if either negotiating party remains willing to move further toward
an agreement, this would support a finding of no impasse. In Hi-Way Billboards, Inc., 206 NLRB
22, 23, the Board stated: “A genuine impasse in negotiations is synonymous with a deadlock;
the parties have discussed a subject or subjects in good faith, and, despite their best efforts to
achieve agreement with respect to such, neither party is willing to move from its respective
position.” In AMF Bowling Company, Inc., 314 NLRB 969, 978, citing Pillowtex Corp., 241 NLRB
40 (1979) and PRC Recording Co., 280 NLRB615 (1986), the Board stated that it has defined
an impasse as the point in time during negotiations when the parties are warranted in assuming
that further bargaining would be futile and when both parties believe “that they are at the end of
their rope.” In this regard, the Court, in Detroit Newspaper, Local 13 v. NLRB, 598 F.2d 267, 273
(D.C. Cir. 1979) stated:
The mere fact that the Union refuses to yield does not mean that it never will. Parties
commonly change their position during the course of bargaining notwithstanding the
adamancy with which they refuse to accede at the outset. Effective bargaining demands
that each side seek out the strengths and weaknesses of the other’s position. To this
end, compromises are usually made cautiously and late in the process.
In Powell Electrical Manufacturing Company, 287 NLRB 969, 973 (1987), the administrative law
judge stated:
The Board does not lightly find an impasse. It requires that the parties must have
reached “that point in negotiations when the parties are warranted in assuming that
further bargaining would be futile.” Futility is what must appear, not some lesser level of
frustration, discouragement, or apparent gamesmanship.
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Applying these cases to the negotiations between the Union and the Respondent I find
that the Respondent has not sustained its burden of establishing that an impasse existed on
April 22 or April 23, when it implemented its final proposal. Was the bargaining difficult? Yes.
Was the Union’s intransigence on the progression issue, at least, partially responsible for the
slow progress of the negotiations? Yes. Could the Union have been more flexible on this issue?
Yes. But, were both parties warranted in assuming on April 22 that further bargaining would be
futile? I don’t believe so. There were ten negotiating sessions, including the April 1 “off the
record” meeting. Although movement was slow, especially on the issue of wages and
progression, there was movement. In fact, at the meetings of April 1 and April 22 the Union had
modified its progression proposal (whether or not it was officially a proposal) to spread it out
over a four or five year period. Even though Respondent did not consider it acceptable, and still
considered it too expensive, it still represented some movement and flexibility on the part of the
Union. In addition, at the April 1 meeting, the Respondent presented its “artificial substandard
rate” for the first time. With this movement, the Respondent cannot establish that both parties
believed that they were “at the end of their rope.” The Union certainly didn’t believe that and
were optimistic about the bargaining prospects during and after the April 1 meeting. Nor can the
Respondent establish that further bargaining would be futile. The Union showed some flexibility
on April 1 and April 22 and was awaiting a response from Respondents representatives on April
22 only to learn that they had departed without explanation. If Respondent had returned to the
meeting and notified the Union that it was rejecting the five year proposal because it was too
expensive, the Union might have proposed an alternative plan for progression. By leaving the
meeting without notifying the Union or the mediator, the Respondent foreclosed any further
movement in the negotiations. I therefore find that there was no impasse in the negotiations on
April 22 and April 23, and that by implementing its last bargaining offer on April 23, the
Respondent violated Section 8(a)(1)(5) of the Act.
It is next alleged that the strike that the Union commenced on April 26 was an unfair
labor practice strike, and there can be little doubt as to this allegation. In RGC (USA) Mineral
Sands, Inc., 332 NLRB 1633 (2001), the Board stated: “It is well settled that if a strike is caused
in part by an employer’s unfair labor practice, the strike is an unfair labor practice strike…An
unfair labor practice strike occurs even when the employer’s unfair labor practice is not the sole
or major cause or aggravating factor; it need only be a contributing factor.” A similar ruling was
made by the Court in General Drivers and Helpers Union, Local 662 v. NLRB, 302 F.2d 908,
911 (D.C. Cir. 1962): “But if an unfair labor practice had anything to do with causing the strike, it
was an unfair labor practice strike.” In Larand Leisurelies, 213 NLRB 198 fn. 4 (1974), the Board
stated that when it is reasonable to infer from the record as a whole that an employer’s unlawful
conduct played a part in the employees’ decision to strike, the strike is an unfair labor practice
strike. To establish that a strike was an unfair labor practice strike, Counsel for the General
Counsel (or the Charging Party) must establish a causal connection between the unfair labor
practices and the strike, and this connection has clearly been established herein. Even though
the employees authorized the Union to strike on February 27, there was no strike until the first
work day after the Respondent unilaterally implemented its last bargaining offer, which I have
found to have violated Section 8(a)(1)(5) of the Act. This timing, together with Webber’s credible
testimony about the strike, and the wording on the picket signs, leaves no doubt in my mind that
it was caused by the Respondent’s implementation of its last bargaining offer, and was therefore
an unfair labor practice strike.
Workers participating in an unfair labor practice strike are entitled to full reinstatement
upon making an unconditional offer to return to work, even if replacements have been hired.
Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956); NLRB v. Cast Optics Corporation, 458
F.2d 398, 407 (3d. Cir. 1972). On July 2 Webber wrote to Krupin: “On behalf of all the Daycon
employees on strike, we hereby make an unconditional offer to return to work immediately. The
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employees will return for work on Tuesday, July 6, 2010.” The next paragraph of the email
states that “in addition, Local 639 requests” that the parties resume negotiations. Counsel for
the Respondent, in his brief, alleges that this is not an unconditional offer to return because of
the added request of continued negotiations. This argument is easily disposed of. The first
paragraph of the July 2 letter clearly constitutes an unconditional offer to return to work. The
objected to language is in a separate paragraph that begins “In addition” and “requests”
bargaining. It does not demand bargaining, nor does it say, or imply, that the offer to return to
work is conditioned on the resumption of bargaining. Further, I note that Krupin, in a letter to
Webber, and Kendall, in a letter to Redmond, both referred to Webber’s July 2 email as an
unconditional offer to return to work. I therefore find that the Respondent violated Section
8(a)(1)(3) of the Act by refusing to reinstate the unfair labor practice strikers beginning on about
July 6.
Conclusions of Law
1. The Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. The Union has been a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent violated Section 8(a)(1)(5) of the Act by subcontracting the repair
work of snow throwers without notice to, or bargaining with, the Union.
4. The Respondent violated Section 8(a)(1)(5) of the Act by unilaterally implementing its
last bargaining offer to the Union at a time when there was no impasse in its negotiations with
the Union.
5. The Respondent violated Section 8(a)(1)(3) of the Act by refusing to reinstate the
unfair labor practice strikers who offered to return to work unconditionally by letter dated July 2.
The Remedy
Having found that the Respondent has refused to offer reinstatement to some of the
unfair labor practice strikers after receiving the Union’s unconditional offer to return to work, I
recommend that Respondent be ordered to offer reinstatement to all unfair labor practice
strikers who have not already been offered reinstatement to their former positions of
employment or, if those positions no longer exist, to substantially equivalent positions, and to
make all the unfair labor practice strikers whole for the losses that they suffered, if any, from
July 6, 2010 to the date of reinstatement, as prescribed in F.W. Woolworth Co., 90 NLRB 289
(1950) along with interest as prescribed in Kentucky River Medical Center, 356 NLRB No. 8
(2010). I also recommend that the Respondent be ordered to rescind the changes in the terms
and conditions of employment that it implemented on April 23, 2010; however, any unilateral
changes that benefited the unit employees shall not be rescinded without a request from the
Union to do so.
Upon the foregoing findings of fact, conclusions of law and the entire record, I hereby
issue the following recommended
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ORDER4
The Respondent, Daycon Products Company, Inc., its officers, agents, successors and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with the Union as the exclusive bargaining representative for
certain of its employees by unilaterally subcontracting bargaining unit work without first notifying
the Union and affording it an opportunity to bargain about such subcontracting.
(b) Prematurely declaring an impasse in collective-bargaining negotiations.
(c) Refusing to reinstate unfair labor practice striking employees after receiving an offer
on their behalf to return to work unconditionally.
(d) In any like or related manner interfering with, restraining or coercing employees in the
exercise of their rights as guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days from the date of this Order, offer reinstatement to all unfair labor
practice strikers not already reinstated. Reinstatement shall be to their former positions of
employment or if those positions no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights and privileges previously enjoyed, and make all
striking employees whole for any loss of earning that they suffered as a result of the refusal to
reinstate them on July 6, 2010, in the manner set forth above in the remedy section of this
Decision.
(b) Rescind the unilateral changes that were made on April 23, 2010 when the company
implemented its last bargaining offer, but any changes that were made on that date that
improved the terms and conditions of employment of the unit employees will be rescinded only
upon the request of the Union.
(c) 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 designated 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, necessary to analyze the amount of backpay due under the terms of this
Order.
(d) Within 14 days after service by the Region, post at its facility in Upper Marlboro,
Maryland, copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended 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.
5 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
Continued
JD(NY)–07-11
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10
15
20
25
30
35
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45
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provided by the Regional Director for Region 5, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. 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
pendency of these proceedings, the Respondent has gone out of business or closed the facility
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 employees employed by the Respondent
at any time since March 1, 2010.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., February 15, 2011
________________________________
Joel P. Biblowitz
Administrative Law Judge
_________________________
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)–07-11

APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated 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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to bargain with Teamsters Local 639 as the exclusive bargaining representative of certain of
our employees by unilaterally subcontracting bargaining unit work without first notifying the Union and affording it an
opportunity to bargain about such subcontracting.
WE WILL NOT prematurely declare impasse in collective bargaining negotiations and WE WILL NOT refuse to
reinstate our employees who went on strike in response to our unfair labor practices and who made an unconditional
offer to return to work.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the exercise of your rights
guaranteed by Section 7 of the Act.
WE WILL offer reinstatement to all the unfair labor practice strikers who went on strike on April 26, 2010 and who
have not already been reinstated, and WE WILL make all of our striking employees whole for any losses that they
suffered as a result of our refusal to reinstate them on July 6, 2010, less any interim earnings, plus interest.
WE WILL cancel any unilateral changes instituted when we implemented our final bargaining offer on April 23, 2010,
except to the extent that any such changes that benefited the unit employees shall not be rescinded unless
specifically requested by the Union.
DAYCON PRODUCTS COMPANY, INC.
Dated_________________ By________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts
secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
103 South Gay Street, The Appraisers Store Building, 8th Floor
Baltimore, MD 21202-4061
Hours: 8:15 a.m. to 4:45 p.m.
410-962-2822.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 410-962-3113