American Needle & Novelty Co.

National Labor Relations Board - Board Decisions

Oct 24, 1973

206 N.L.R.B. 534 (N.L.R.B. 1973)

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bruce E. Kronenberger and Herbert Schoenbrod d/b/a
American Needle & Novelty Company, Kentucky
Manufacturing Company and Harrisburg Manufac-
turing Company and Cap Makers Union Local No.
5, United Hatters, Cap and Millinery Workers Inter-
national Union-, AFL-CIO. Case -13-CA-10127
October 24, 1973
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
On March 24, 1972, Administrative Law Judge I
James Constantine issued the attached Decision in
this proceeding. Thereafter, the Respondent, Charg-
ing Party, and General Counsel filed exceptions and
supporting briefs, and the General Counsel filed an
answering brief. On July 20, 1972, the Board issued an
order reopening the record and remanding the pro-
ceeding to the, Regional Director for a further hearing
before the Administrative Law Judge. On January 23,
1973, the Administrative Law Judge issued the at-
tached Supplemental Decision in this o proceeding.
Thereafter, the Respondent and Charging Party filed
further exceptions and supporting briefs and the
Charging Party filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated 'its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order to the extent consis-
tent herewith.
The Administrative Law Judge finds that
Respondent's conversations with union representa-
tives concerning its decision to cease its production
operation at its Chicago facility did not rise to the
stature of bargaining, but found that Respondent did
not act unlawfully in this respect as the decision is not
a subject of mandatory bargaining, citing General Mo-
tors Corporation, GMC Truck and Coach Division, 191
NLRB 951. We agree with the Administrative Law
Judge's finding that Respondent did not bargain.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 The counsel for the Respondent has excepted to certain credibility find-
ings made by the Administrative Law Judge It is the Board's established
policy not to overrule an Administrative Law Judge 's resolutions with respect
to credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined
the record and find no basis for reversing his findings.
However, we do not agree with his conclusion that the
failure to do so was not unlawful.
The Respondent is a single, integrated, multiplant
enterprise consisting of three plants. The employees at
each of the three plants are represented by a different
local of the United Hatters, Cap and Millinery Work-
ers. Here, Respondent transferred the production
work being performed at the Chicago plant to its Har-
risburg plant with the resulting loss of employment of
nearly all the unit employees. The essence' of the
transaction was the transfer of work from one unit of
employees to another, with all other work at the Chi-
cago plant continuing. Thus, here, the same work is
still being performed in the same way only by employ-
ees at another of the plants of the integrated enter-
prise.
In our opinion, the disposition of this case is
controlled by Fibreboard Paper Products Corp v.
N.LR.B., 379 U.S. 203 (1964). In Fibreboard the em-
ployer, without bargaining, subcontracted the mainte-
nance work being performed at its plant to an inde-
pendent contractor. The Court, in agreement with the
Board, held that such contracting is a mandatory sub-`
ject of bargaining. In doing so, Chief Justice Warren
noted in the majority opinion:
The Company' s decision to contract out the
maintenance work did not alter the Company's
basic operation . The maintenance work still had
to be performed in the plant . No capital 5invest-
ment was contemplated ; the Company merely
replaced existing employees with those of an in-
dependent contractor to do the same work under
similar conditions of employment . Therefore, to
require the employer to bargain about the matter
would not significantly abridge his freedom to
manage the business. [379 U .S. 213.]
The fact that here the Respondent transferred the
work from one location to another , rather than sub-
contracting the work as in Fibreboard, does not
change the result . It is well settled that an employer
has an obligation to bargain concerning a decision to
relocate unit work .' Thus in Weltronic, supra, a case
very similar on its facts to the instant case , the Board
found the employer acted unlawfully when without
bargaining he moved unit work from one plant to
another with the ultimate result that 14 employees
were laid off.
In out view, the Board's decision in General Motors
Corporation, GMC Truck & Coach Division, 191
NLRB 951, ptn. for review denied 470 F.2d 422 (C.A.
D.C., 1972), is not controlling here . It is true that,
3 Weltromc Company, 173 NLRB 235, cf. Shell Oil Company, 149 NLRB
305
206 NLRB No. 61
AMERICAN NEEDLE & NOVELTY COMPANY 535
unlike in Weltronic, there was no further production
work at the Chicago facility after the Respondent
relocated that work, although the other functions of
the Chicago facility continued as before. However, in
General Motors the Board was concerned with a deci-
sion which involved a significant investment or with-
drawal of capital affecting the scope and ultimate
direction of the enterprise. Here there was no sale or
arm's length transfer or any other transaction which
could be said to rise to the level of the transaction the
Board was concerned with in that case. Rather, here
the transaction was simply a transfer within the same
multiplant enterprise of the production work being
performed by 12 employees at Respondent's Chicago
facility. Thus, the considerations which led the Board
to conclude that Fibreboard, supra, was not applicable
in General Motors, supra, are not present in this case.
Accordingly, we conclude that Respondent's fail-
ure to bargain as to the decision to transfer work from
one unit to another constitutes a violation of Section
8(a)(5) and (1).
Remedy
We have found that Respondent violated Section
8(a)(5) by unilaterally transferring work from one unit
of employees to another. This transfer resulted in the
layoff of unit employees. We shall order Respondent
to cease and desist from unilaterally transferring unit
work or otherwise making unilateral changes in the
employees' terms and conditions of employment
without consulting their designated bargaining agent.
In order to insure that there is genuine bargaining
over the decision to transfer work from one unit of
employees to another, we shall order the Respondent
to restore the status quo ante by reinstituting the pro-
duction operation at the American Needle & Novelty
facility in Chicago and to fulfill its statutory duty to
bargain.
We perceive no undo hardship to the Employer by
requiring it to resume its production operations at the
'Chicago facility. The Chicago facility is still in exis-
tence and presently performs much the same func-
tions, with the exception of production, it did in
November 1970, continuing to buy and supply raw
materials to the Kentucky Manufacturing Company
and the Harrisburg Manufacturing Company, and
continuing to sell the caps produced at those compa-
nies. The building which housed the American Needle
& Novelty production operation still stands and Kro-
nenberger continues as a member of the partnership
which owns the building and as Respondent's chief
managing official.
Since the loss of employment of unit employees
stems directly from Respondent's unlawful action in
failing to meet' its bargaining obligation, we believe
that a meaningful bargaining order can be fashioned
only by directing Respondent to offer unit employees
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiv-
alent positions without prejudice to their seniority or
other rights and privileges and to make them whole
for any loss of earnings suffered by reason of their
unlawful termination, by payment to them of a sum
of money equal to that which normally would have
been earned from the date of their layoff to the date
of Respondent's offer of reinstatement, less net earn-
ings during such period, with backpay computed on
a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289.
Backpay shall carry interest at the rate of 6 percent
per annum as set forth in Isis Plumbing and Heating
Co., 138 NLRB 716.
AMENDED CONCLUSIONS OF LAW
1. In view of the above, we substitute the following
for the Administrative Law Judge's conclusion 4(a)
and (b):
"(a) Failing and refusing to bargain with the Union
concerning the decision to move unit work from the
Chicago facility to other facilities.
"(b) Failing and refusing, upon request, to provide
the Union with relevant information to enable the
Union to bargain."
2. We do not adopt the Administrative Law
Judge's conclusion 7.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Bruce
E. Kronenberger and Herbert Schoenbrod d/b/a
American Needle & Novelty Company, Kentucky
Manufacturing Company and Harrisburg Manufac-
turing Company, Chicago, Illinois, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
with the Union by refusing, upon request, to sign the
collective-bargaining agreement embodying the terms
and conditions of employment on which Respondent
and the Union had reached agreement in August
1969. (This follows the form adopted by the Board in
Houchens Market of Elizabethtown, Inc., 155 NLRB
729, 730.)
(b) Refusing to bargain with the Union as to the
decision to transfer unit work; and unilaterally trans-
ferring unit work without bargaining with the Union
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or any other union the employees may select as their
exclusive bargaining representative.
(c) Refusing to provide the Union, upon request,
with relevant information to enable the Union to bar-
gain over the decision to transfer unit work.
(d) Varying or changing the terms or provisions of
a contract entered into with the Union in August
1969, by paying less than the wages called for by said
contract without first consulting-and bargaining with
the Union concerning such changes.
(e) Failing and refusing to remit checked-off dues
to the Union- pursuant to the collective-bargaining
agreement reached by the parties in August 1969.
(f) Failing and refusing to transmit to the Union's
health, welfare, and retirement funds contributions
required by the collective-bargaining agreement
reached by the parties in August 1969.
(g) In any other manner failing or refusing to bar-
gain collectively on behalf of the employees in the
appropriate unit. -
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request by the Union, sign a written con-
tract embodying all agreed-upon terms between Re-
spondent and the Union covering employees in.the
aforesaid appropriate unit.
(b) Upon request by the Union, bargain collec-
tively with the Union with respect to the decision to
transfer the production operations of American Nee-
dle & Novelty Company, and, if an understanding is
reached thereon, reduce to writing and sign any agree-
ment reached as the result of such bargaining.
(c) Reinstate at the American Needle & Novelty
Company's Chicago plant the work previously per-
formed by unit employees represented by the Union
and offer to these employees immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay
suffered by them in the manner set forth in the section
above entitled "The Remedy."
(d) Bargain collectively with the Union as the ex-
clusive bargaining representative of the Respondent's
employees in the appropriate unit with respect to wag-
es, hours, and other terms and conditions of employ-
ment and upon request by said Union furnish it with
relevant information necessary to enable it to bargain
over the decision to transfer unit work.
(e) Remit to the Union dues checked off and to be
checked off pursuant to the collective-bargaining
agreement reached by the parties in August 1969, and
required by said contract to be turned over to the
Union by the Respondent.
(f) Transmit to the Union's health, welfare, and
retirement funds contributions according to the perti-
nent provisions of the collective-bargaining agree-
ment mutually agreed upon by the parties in August
1969.
(g) Reimburse employees who worked in said ap-
propriate unit for the amount of wages they lost when
granted increases of 8 cents an hour instead of 10
cents an hour as required by the contract agreed upon
in August 1969.
(h) Preserve and, upon request, make available to
the Board or its agents for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(i) Post at its place of business at Chicago, Illinois,
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the Re-
gional Director for Region 13, after being duly signed
by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(j) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
found herein.
4 In the event that 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 United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that
WE WILL NOT refuse to execute with Cap Mak-
ers Union Local No. 5, United Hatters, Cap and
Millinery Workers International Union, AFL-
CIO, a contract containing the provisions upon
which we have reached agreement concerning
AMERICAN NEEDLE & NOVELTY COMPANY 537
wages, hours of employment, and other condi-
tions of employment, covering employees in the
bargaining unit described below.
WE WILL NOT refuse to give said Union relevant
information which will enable it to bargain col-
lectively with us with respect to our decision to
transfer unit work.
WE WILL NOT refuse to bargain with the Union
as to the decision to transfer unit work, or unilat-
erally transfer unit work without bargaining with
the Union, or any other union the employees
may select as their exclusive bargaining represen-
tative.
WE WILL NOT refuse to remit checked-off union
dues and to transmit contributions to the Union's
health, welfare, and retirement funds pursuant to
our contract with the Union.
WE WILL NOT vary or change the terms of a
contract entered into with the Union in August
1969, by paying less than the wages called for by
said contract, without first consulting and bar-
gaining with said Union concerning such
changes.
WE WILL NOT in any other manner interfere
with the efforts of said Union to bargain collec-
tively on behalf of the employees in the appropri-
ate unit.
WE WILL, upon request of the above-named
Union, execute with it a contract containing the
terms upon which we reached agreement in Au-
gust 1969, covering employees in the following
bargaining unit:
their seniority or other rights and privileges, and
make them whole for any loss of pay suffered, by
them in the manner set forth in the section of the
Board's Decision entitled "The Remedy."
WE WILL bargain collectively with the Union as
the exclusive bargaining "representative of the
Respondent's employees in the appropriate unit
with respect to wages, hours, and other terms and
conditions employment and, upon request by
said Union, furnish it with relevant information
necessary to enable it to bargain over the deci-
sion to transfer unit work.
WE WILL remit to said Union all union dues
checked off or required to be checked off, and-
transmit to it all payments to the Union's health,
welfare, and retirement funds, in accordance
with the provisions of a contract, agreed upon by
us with said Union in August 1969.
WE WILL reimburse employees who worked in
said appropriate unit for the amount of wages
they lost when we granted them increases of 8
cents an hour instead of 10 cents an hour, as
required by the contract agreed upon by us in
August 1969.
BRUCE E. KRONENBERGER
AND HERBERT SCHOENBROD
d/b/a AMERICAN NEEDLE&
NOVELTY COMPANY, KEN-
TUCKY MANUFACTURING
COMPANY AND HARRISBURG
MANUFACTURING COMPA-
NY (Employer)
All employees who were employed by us at our
factory at 2846 West North Avenue in Chica-
go, Illinois, excluding the office clerical staff
and supervisors as defined in the National La-
bor Relations Act.
WE WILL, upon request by the Union, bargain
collectively with it with respect to the decision to
transfer the production operation of American
Needle & Novelty Company, and, if an under-
standing is reached thereon, reduce to writing
and sign any agreement reached as the result of
such bargaining.
WE WILL reinstate at the American Needle &
Novelty Company's Chicago plant the work pre-
viously performed by unit employees represented
by the Union, and offer to these employees im-
mediate and full reinstatement to their former
jobs or, if these jobs no longer exist, to substan-
tially equivalent positions without prejudice to
Dated By
(Representative) (Title)
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 compli-
ance with its provisions may be directed to the
Board's Office, Everett McKinley Dirksen Building,
Room 881, 219 South Dearborn Street, Chicago, Illi-
nois 60604, Telephone 312-353-7572.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner: This is an unfair
labor practice case litigated pursuant to Section 10(b) of the
National Labor Relations Act, herein called the Act. 29
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U.S.C. 160(b). It was initiated by a complaint issued on
November 27, 1970, and amended on May 28, 1971, and
July 22, by the General Counsel of the National Labor
Relations Board , herein called the Board, through the Re-
gional Director for Region 13, naming Bruce E . Kronenber-
ger and Herbert Schoenbrod, d/b/a American Needle and
Novelty Company, Kentucky Manufacturing Company,
and Harrisburg Manufacturing Company, as the Respon-
dent. Said complaint as amended is based on a charge and
amended charge filed on October 6, 1970, and February 26,
1971, respectively, by Cap Makers Union Local No, 5, Unit-
ed Hatters, Cap, and Millinery Workers International
Union, AFL-CIO. Said Charging Party is referred to as the
Union or Local 5 herein.
In substance the complaint as amended alleges that Re-
spondent violated Section 8(a)(1) and (5), and that such
conduct affects commerce within the meaning of Section
2(6) and (7), of the Act. Respondent has answered admitting
some of the allegations of the complaint but denying that
it committed any unfair labor practices.
Pursuant to due notice this case came on to be heard, and
was tried before me, at Chicago, Illinois, on August 3, 4, and
5, 1971, and January 11, 1972. All parties were represented -
at and participated in the trial, except that Respondent did
not participate on January 11, 1972, and had full opportuni-
ty to introduce evidence , examine and cross-examine wit-
nesses , and offer oral argument. All parties have argued
orally. Brief have been received from all the parties. The
General Counsel' s motion to correct transcript is granted.
This case presents the following issues:
1. Whether Respondent and two other employers consti-
tute a single , integrated multiplant enterprise with common
ownership , common management, and a centralized control
of labor relations policy.
2. Whether Respondent and the Union orally agreed
upon a collective-bargaining agreement, and, if so , whether
Respondent refuses to sign and execute a written contract
embodying the terms thereof.
3. Whether Respondent unilaterally increased wages
without notifying, consulting , or bargaining with the Union
thereon.
4. Whether Respondent has refused to bargain with the
Union about the former's decision to close its plant in Chi-
cago, Illinois.
5. Whether Respondent has refused to bargain with the
Union concerning the effects of the former 's closing of its
plant at Chicago, Illinois.
6. Whether Respondent has failed to remit checked off
union dues to the Union and to pay the health, welfare, and
pension benefits prescribed in a collective-bargaining agree-
ment.
7. Whether Respondent unlawfully refused to furnish the
Union with certain information and an opportunity to allow
an industrial engineer in the plant on behalf of the Union.
Upon the entire record in this case , and from my observa-
tion of the demeanor of the witnesses , I make the following:
FINDINGS OF FACT
I AS TO JURISDICTION
Kronenberger and Schoenbrod, the latter as trustee for
five children of the former , are copartners doing business
under the names of the '-companies mentioned in this sec-
tion. From about 1940 until November 9, 1970, American
Needle and Novelty Company operated a factory in Chica-
go, Illinois, at which caps and hats were manufactured.
Harrisburg Manufacturing Company is engaged at Harris-
burg, Illinois, in-manufacturing caps and hats . During 1970,
American and Harrisburg each produced and shipped caps
and hats valued in excess of $100,000 directly to points
outside the State of Illinois.
Kentucky Manufacturing Company is engaged at Union-
town, Kentucky, in manufacturing caps and hats. In 1970
it produced and shipped caps and hats valued in excess of
$50,000 directly to points outside the State of Kentucky.
Further, I find that said copartners operate the foregoing
three manufacturing companies as a single , integrated, mul-
tiplant enterprise with common ownership , common man-
agement, and a centralized control of labor relations policy.
Finally, I find that said copartners , as to each of said
companies singly and as a group , constitute an employer
within the meaning of Section 2 (2), are engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act,
and that it will effectuate the policies of the Act to assert
jurisdiction over them.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.'
III THE UNFAIR LABOR PRACTICES
A. General Counsel's Evidence
As found above American Needle manufactured caps
and hats until November 9, 1970 when it ceased production.
Harrisburg Manufacturing Company has been producing
caps essentially for about 20 years. Kentucky Manufactur-
ing Company has been producing caps predominantly for
about 3 years prior to November 9, 1970. American bought
raw materials and supplied-the same to itself , Harrisburg,
and Kentucky for manufacturing hats. Since said Novem-
ber 9 , American still buys and supplies such raw materials
to Harrisburg and Kentucky.
Prior to November 9, 1970, American Needle , Harris-
burg, and Kentucky, "to some degree" sold finished prod-
ucts to the same customers . Since then Harrisburg and
Kentucky have continued to sell caps to such customers.
Respondent Kronenberger at all times material has set the
prices on such items.
At all times material the employees at American'Needle
have been represented by the Union in a unit composed of
all employees there, excluding the office clerical staff and
supervisors as defined in the Act. Samuel Winn has been the
Union's main representative during such times. American
and the Union signed collective -bargaining agreements dur-
AMERICAN NEEDLE & NOVELTY COMPANY 539
ing such times, said contracts providing for American's con-
tributing to a health fund and a retirement fund. American
made such contributions. A sister Local (Local 99) of the
Union represents the employees at the Harrisburg plant.
As noted above, American ceased operations on Novem-
ber 9,1970. This was decided by partner Kronenberger, who
is the overall manager not only of said company, but also
Harrisburg and Kentucky.
In addition, Harrisburg performed some preliminary or
initial operations on several types of caps which were then
transported to American Needle for final operations on the
same caps, after which they were delivered to Kentucky for
additional work, and then they were shipped to American
Needle for final operations. Thereafter they were shipped to
customers either by American Needle in a few cases or by
Harrisburg in the vast majority of cases. This occurred prior
to November 9, 1970. Thereafter the work done on these
hats by American Needle was performed by Harrisburg.
To sum up. Since November 9, 1970, when it ceased
production, American Needle buys materials, has such ma-
terials made into caps at factories in Harrisburg and Union-
town, and then sells such caps.
Since the late 1930's or early 1940's the Union has repre
sented all the employees at American Needle in a unit which
excludes the office clerical staff and supervisors as defined
in the Act. The last written contract between them was for
the period from July 1, 1966, to June 30, 1969. See G.C.
Exhibit 2. Shortly after June 30, 1969, Samuel Winn, busi-
ness manager of Local 5, and Kronenberger met twice to
negotiate a new contract. At the first meeting Winn pro-
posed a 3-year agreement providing for an increase in wages
each year of 10 cents an hour. Although Kronenberger
agreed to a 3-year contract, he made a counteroffer of an
increase of 8 cents an hour each year.
A second negotiating meeting was held a few weeks later
between Winn and Kronenberger. On this occasion, Winn
was accompanied by some of the employees in the bargain-
ing unit. According to Kronenberger, said employees "indi-
cated that they would be inclined to accept" his offer of 8
cent-an-hour increase. He also testified that this 8 cents an
hour, which was to be retroactive to July 1, 1969, was an
"amendment to the last signed collective bargaining agree-
ment," so that such agreement was extended for another 3
years as thus modified.
Some time after this Winn transmitted to Kronenberger
a document embodying the changes or amendments to the
expired contract purportedly agreed upon by the parties.
However, Kronenberger did not sign it because he felt it
provided for a 10 cent-an-hour increase in wages. Nor did
he return it to Winn. However, in a related civil action
Kronenberger asserted in a deposition that the reason he
did not sign it was probably because Winn "never came
back to ask for it and to get it signed. Perhaps if he had
called and asked me to sign it, maybe I would have signed
it and maybe I wouldn't have signed it." Nevertheless, be-
ginning July 1, 1970, Kronenberger raised wages of all em-
ployees in the unit 8 cents an hour.
The last contract between the parties (G.C. Exh. 2), which
expired on June 30, 1969, had a clause requiring American
Needle to check off dues for the Union. American Needle
did honer this provision during such term and thereafter
until June 30, 1970, and remitted such dues to the Union.
However, although after July 1, 1970, such dues continued
to be checked off, they were not remitted to the Union.
Said contract also required the employer to contribute to
a retirement and pension fund and also a health fund. These
payments were made not only during the term of the con-
tract but also thereafter until June 30, 1970. Respondent
never notified or discussed with the Union why the former
stopped such payments after June 30, 1970. That contract
also provided for vacations. These were granted not only
during its term but also after July 1, 1969 "in the manner
required by that contract."
On November 9, 1970, American Needle ceased manu-
facturing hats itself. Initially,,Kronerberger neither in-
formed the Union of the decision to stop such producing
nor discussed with it such decision. However, according to
him, his counsel "told the Union about the reasons for the
shutdown." At a later meeting held about October 23, 1970,
which Kronenberger attended, said counsel again discussed
the shutdown with the Union.
The foregoing in substance constitutes the testimony ad-
duced by the General Counsel through Kronenberger. Ad-
ditional evidence introduced by the General Counsel
follows:
About April 28, 1969, Samuel Winn, the Union's business
manager, mailed to American Needle a letter notifying the
latter that the contract was expiring on the following July
1 and requesting that a new agreement be negotiated. See
G.C. Exhibit 3. Thereafter, in about June, 1969 , negotia-
tions between Winn and Kronenberger followed but no
meeting of minds occurred then. They met again in July,
1969, without reaching an agreement.
However, they met a third time in August, 1969. This time
Winn was accompanied by employees Mable Love and
Florence McCaskill. At this meeting the parties agreed to
renew the terms of the last expired contract for 3 more years
with the following modifications : wages were to be raised
10 cents an hour each year'for each of the 3 following years,
with retroactivity to July 1, 1969, and the new contract was
to be effective from July 1, 1969. The terms of the agreement
resulted from an offer by Kronenberger which was accepted
by Winn after Winn discussed the terms thereof with Love
and McCaskill and then with other employees in the plant
whom he visited and to whom Winn conveyed the terms of
the offer.
Having arrived at a mutual agreement with Kronenber-
ger, Winn returned to his office where he dictated to his
secretary the text of such agreement, including the provision
that it was for the period from July 1, 1969, to June 30, 1972.
Then he brought an original and two copies of such a docu-
ment, one of which was to be retained by Respondent, a few
days later to Kronenberger and asked the latter, to sign
them. But Kronenberger walked out without signing or say-
ing anything. Since they were not soon mailed to Winn, he
sought to contact Kronenberger whenever he visited the
plant, but without success. In addition Winn telephoned to
the plant a few times to talk to Kronenberger about signing
the contract, but the latter was not in on any of these occa-
sions. And Kronenberger never returned any of such calls
of Winn although Winn left a message each time to this
effect.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About July, 1970, Winn encountered Kronenberger at
American Needle. Although Winn requested that the latter
sign the contract, Kronenberger replied that he was in a
hurry-and, when he returned, would get in touch with Winn.
But at no time during his conversation did Kronenberger
assert that no contract existed between the Union and
American Needle. and Kronenberger has not yet signed the
agreement presented to him by Winn.
Winn' met with Lev, Respondent' s counsel, in late Sep-
tember, 1970, at the latter's request. At this time Lev stated
that Kronenberger "intends to close up the American Nee-
dle and Novelty Company, but he's not sure yet. It isn't a
fact yet." It was the first time Winn learned of the possibility
of a closing. Although Winn protested such closing and also
requested "compensation" or at least severance pay for the
employees, Lev merely replied that he "had no authority"
and would "have to . . . relate this to Mr. Kronenberger."
Then Winn suggested that Lev ask Kronenberger to consult
"with somebody in New York and make a settlement"
which would "keep the Chicago plant open." Lev replied,
"I have no authority. I have to talk to Mr. Kronenberger.
I'll let you know."
Following this Winn received a letter from Lev dated
September 28, 1970, in which Lev recited briefly what he
thought transpired at their meeting and added that Lev
would suggest that Kronenberger get in touch with union
officers in New York. See G.C. Exhibit 4. Soon thereafter
Winn complained to his counsel, Albert Gore, that said
letter "isn't what we were discussing" at said meeting with
Lev.
By letter dated October 5, 1970, the Union's Counsel,
Gore, wrote to Respondent's Counsel, Lev, requesting "an
opportunity to bargain [about] the potential decision to shut
down" American Needle and also to " discuss" the "effects"
of such potential decision upon employees represented by
the Union. It also expressed a desire to discuss the
employer's "delinquencies in respect to its payments to the
health benefit and retirement funds. See Respondent's Ex-
hibit 2. About October 23, 1970, the parties met after Lev
replied thereto by letter dated October 7, 1970. See G.C.
Exhibit 7.
At the meeting following said letter of Gore he stated that
the parties were there to negotiate the possibility of keeping
the plant open or, if that could not be accomplished, to find
a way to compensate employees who would be laid off by
a shut down. In addition Gore mentioned delinquencies in
the contributions to the health and retirement fund. Lev
replied no delinquencies existed because no contract was in
effect requiring payments to such funds.
As noted, Winn again met with Lev on about October 23,
1970. Kronenberger, Gore, and Gore's associate, Miss
Lundquist, were also present. Gore opened the meeting by
observing that the meeting was to negotiate the possibility
of keeping American Needle open and, if not, to obtain
compensation for employees affected by its closing. He add-
ed that Respondent was "delinquent" in payments to the
health and retirement funds and remitting checked off dues
to the Union. Lev replied that"We are not delinquent be-
cause there is no agreement." Thereupon Gore insisted
"there is an oral agreement." When Winn asked why Re-
spondent contributed to the health and retirement funds
from July, 1969, to June, 30, 1970, and remitted dues during
the same period, if no contract was in effect, Lev replied that
"it was a mistake."
- Then the matter of closing the plant was introduced at the
meeting when Lev commented that the plant was being
closed "for economic reasons. We are not making money
enough." Although Gore asked "how much is enough mon-
ey" and "was there a lessening of income," Lev told him,
"None of your business." Then Gore asked for a financial
report and books and records relating thereto in order to
"negotiate to keep the plant open," but Lev refused to sup-
ply or produce one. Gore also 'asked who were American
Needle's competitors, but Lev declined to disclose their
identity other than to mention International Hat Company.
When Gore asked for the names of Respondent 's customers
Lev refused to give this information.
Then Lev stated that the parties had come there to ascer-
tain whether they "could come to settlement of some ef-
fects." This caused Gore to comment that they' could not
"come to an understanding on anything" in view of the
failure to disclose information on the matters requested and
a financial report. Whereupon Lev replied that Gore was
not looking for a settlement or bargaining, but, rather, for
grievances and "litigations." Finally, Gore asked Lev why
the plant was closing. The latter replied that "we are not
pleading poverty here, we are closing for economic r easons
and this is all I have to tell you." Then Lev asked Gore to
make some proposals to run American Needle more effi-
ciently. This caused Gore to ask for permission to have an
industrial engineer enter the plan to make an "efficiency
valuation" at the Union's expense, but Lev rejected this
request. Finally, Gore said they could not bargain about
effects of the shutdown unless he had the information previ-
ously requested at said meeting, but Lev added that he
would not give it. At this point Lev and Kronenberger left.
By letter dated November 3, 1970, Kronenberger wrote
to the Union that Respondent would lay off all employees
"of this plant" except three there named. See G.C. Exhibit
5. Winn had not previously agreed to the retention of these
three employees although said letter quotes him as not op-
posing the continued employment of two of said three
named employees. Further, Kronenberger had not previ-
ously mentioned to Winn closing the plant although G.C.
Exh. 5 states that he had called this to Winn's attention.
Shortly prior to October 23, 1970, Lev telephoned to Or-
love, Gore's partner, regarding another matter. During the
course of the conversation, according to Orlove, Lev stated
that he was meeting with Gore, that such meeting would be
short, lasting but 15 or 20 minutes, and that he, Lev, Was not
going to take any of Gore's "crap" at such meeting.
In October, 1970, the Union presented a grievance to
Respondent at the office of Edward R. Lev, the latter's
attorney. Kronenberger, who was present, was so disturbed
by such grievance that he threatened "dire consequences if
[the Union] pursued these grievances." During the conver-
sation Lev asserted that "there was no contract" between
American Needle and the Union.
B. Respondents' Evidence
Kronenberger and Winn had met in July or August, 1969,
AMERICAN NEEDLE & NOVELTY COMPANY 541
to bargain for a new contract . At this meeting Kronenberger
did not reach an agreement with the Union to raise wages
8 cents an hour, but he did reach agreement "with the girls
in the presence of Mr. Winn" for an increase in that
amount. Winn approved this by stating "it was okay with
the girls-it was okay with him." However, Winn mailed to
Kronenberger a "proposed new agreement" calling for an
increase of 10 cents an hour . But Kronenberger did not sign
it, and Winn at no time thereafter asked him to sign it. Nor
did Winn, to Kronenberger's knowledge , try to reach the
latter concerning said signing.
Sometime thereafter Kronenberger "instituted" an in-
crease of 8 cents an hour retroactive to July 1 , 1969. Again
on July 1 , 1970, Kronenberger put into effect another wage
raise of 8 cents an hour . In.neither instance did he consult
with or notify the Union prior to instituting such increases.
In addition to the foregoing, Kronenberger paid to the
Union contributions due to the retirement and health and
benefit funds for the period July 1 , 1969, to June 30, 1970,
and also granted paid vacations during such time. But such
payments were stopped after July 1 , 1970, Kronenberger
also continued to make "union label payments" to the
Union from July 1, 1969 to June 30, 1970.
By letter dated September 25, 1970, Respondent wrote to
Winn that, "by reason of economic conditions . . . there is
a substantial likelihood that American Needle and Novelty
Company may suspend its operations in Chicago perma-
nently," expressed a desire "to discuss this matter with you
... as soon as possible," and requested a meeting of the
parties to "bargain on this matter ." See Respondent's Ex-
hibit 5.
Lev, counsel for Respondent, testified extensively on its
behalf . A conspectus of such testimony follows:
Although admitting he spoke to Orlove , Lev insists that
he told Orlove that the meeting Lev had arranged with Gore
on October 23, 1970 , would consume about 2 hours but it
might be shorter because Lev "took nothing from Mr.
Gore" if "Gore acted as he usually acted." However, Lev
denied that he mentioned the word "crap" in this telephone
call to Orlove.
In late September 1-970 , Lev called Winn to arrange for
a meeting to discuss with Winn the possible closing of the
American Needle plant . The two met about September 28.
At this meeting Winn stated that Kronenberger was "always
talking about the closing of the American Needle plant
because of the few number of employees there." Then Winn
insisted that, if the plant closed, the employees laid off
thereby "should be compensated ." After this Winn ex-
plained in detail what he meant by this and how it could be
accomplished . Among other things, Winn wanted each laid
off employee to receive $ 1,000 when the plant closed, but
Lev opposed this and the entire proposal as to compensa-
tion in the form requested by Winn. In fact Lev suggested
that the Union "contribute half" of the cost of the "compen-
sation" mentioned by Winn. Continuing, Lev added that
"we are prepared to do something for the employees if you
are reasonable , but I will not agree to any outrageous de-
mand."
About October 23, 1970 , Lev met with Gore at the latter's
office . Winn, Miss Lundquist , and Kronenberger were also
present . Lev said he came "to bargain about the effects of
the closing." However , Gore first wanted "to talk about
delinquencies in the retirement and health and union dues."
But Lev refused to discuss them because the only purpose
of the meeting was "to talk about the effects of the closing."
When Gore asked why the plant was being closed, Lev
responded "for economic reasons." But when Gore inquired
whether the plant was losing money Lev answered it "is
none of your business . . . the reason for [the] decision to
close the plant is [not] material here. . . . We want to talk
here about the effects ." Then Gore said he wanted to see a
"profit and loss statement," but Lev refused to produce this
because he considered it "not relevant" and because "as a
matter of law" Gore could not inquire into "the bona fides
of our economic decision to close down. . . . We are not
pleading poverty here."
When Gore asked if American Needle was shipping work
to a Mexico plant, Lev replied that Gore was "fishing for
grievances"; that it was not true; and that , "in any case,"
it would be a matter for "contract arbitration" except that
"we don't have an agreement here." When Gore insisted
that an oral agreement had been consummated , Lev denied
the same . Since Gore persisted in bringing up other matters
than "the effects of, the closing," Lev threatened to leave
unless Gore adhered to considering such effects.
Then Gore suggested that "the plant can be more effi-
cient" and requested permission to bring in an industrial
engineer , at Gore's expense, to determine whether it could
be rendered more efficient, but Lev declined this request.
Lev added that the real problem "is the expense of shipping
caps back and forth and the price competition . . . [from]
non-union competitors ." Then Lev mentioned Pioneer, Par-
amount, and International Hat as such competitors.
After much further discussion Lev stated he would leave
unless they debated the decision to close the plant and the
effects thereof . Thereupon Gore accused Lev of being "guil-
ty of a runaway shop" if the plant closed. This caused Lev
to remark that Gore was "looking for litigation ." However,
Lev offered to meet again , if Gore so requested , "to discuss
the effects," but it would have to be in Lev's office. There-
upon Lev and Kronenberger left. The meeting lasted be-
tween 1-1/2 and 1 -3/4 hours.
C. Concluding Findings and Discussion
Preliminarily I find that a unit appropriate for collective
bargaining comprises all employees who were employed by
Respondents at their factory at 2846 West North Avenue in
Chicago , Illinois, excluding the office clerical staff and su-
pervisors as defined in the Act . And I ' further find that at
all times material herein the Union has been the exclusive
collective bargaining agent representing the employees in
said appropriate unit and that Respondent was under a legal
obligation to recognize and bargain collectively with it as
such.
1. As to the decision to close the Chicago factory
and terminate its cap and hat operations
Initially, I find that terminating the Chicago production
operations constituted a partial closing of a single , integrat-
ed multiplant enterprise . Hence I find that such termination
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not amount to a complete going out of business by
Respondent. Ozark Trailers, Incorporated, 161 NLRB 561,
564.
. And I also find, crediting the General Counsel's evidence
on this aspect of the case and not crediting the evidence of
Respondents not consonant therewith, that American Nee-
dle did not bargain collectively with the Union over the
decision to terminate the Chicago production operations.
Although Lev, attorney for Respondents, at a meeting in
September, 1970, informed Winn, the Union's business
agent, that Respondents intended to close the Chicago pro-
duction operations, Lev stated that he lacked authority to
discuss the decision to close when Winn sought to explore
certain avenues thereof. On this issue I credit Winn and do
not credit any evidence of Respondents inconsistent there-
with. Manifestly no bargaining resulted at this meeting.
While it is true that shortly after the foregoing meeting,
Lev wrote to Winn on September 28, 1970 (See G.C. Exh.
4), I find not only that it, does not correctly summarize what
transpired at the meeting but also that, in any event, it does
not disclose any genuine negotiations were engaged in re-
garding the decision to close. In fact Lev apparently realized
that prior discussions had not touched upon the decision to
close because on October 7, 1970, he answered the Union's
request to bargain concerning the closing by acknowledging
the Union's requests for "an opportunity to bargain with the
Company respecting its potential decision-to shut down its
plant" and offering to meet thereon as soon as Kronenber-
ger returned to Chicago. See G.C. Exhibit 7.
Nor do I find that the decision to close was discussed
when the parties next met about October 23, 1970. Notwith-
standing that Lev mentioned at this meeting that the plant
was being closed "for economic reasons. We are not making
enough money," he refused to answer any questions per-
taining to the economic considerations entering into the
decision to close the plant. Patently this conversation does
not rise to the stature of bargaining and I so find. In arriving
at the foregoing findings in this paragraph I have credited
the General Counsel's evidence and have not credited any
evidence of, Respondents inconsistent therewith. In this
connection it is significant that Kronenberger testified that
some employees were laid off in August, 1970, pursuant to
his decision to close. This means that such decision to close
had been made before the parties met in September and
October, 1970. Manifestly Respondents did not intend to,
bargain over the decision to close.
The question at this point is whether Respondents were
under, a statutory mandate to discuss or bargain with the
Union regarding the decision to close down production op
erations. Upon analyzing the decisions set forth below in
this subsection, I feel constrained to rule that an employer
need not bargain over the decision to close part of an opera-
tion, and that his failure to bargain about said decision does
not contravene the Act.
At one time the Board held that an employer's decision
to close, terminate, or shut down a production operation
was the subject of mandatory bargaining. An example in
point is Ozark Trailers, Incorporated, 161 NLRB 561,, 564-
570. However, some courts had denied enforcement of
Board orders directing an employer to bargain over such
decision. These court cases were recently cited with approv-
al by the Board in a case in which the Board held that a
decision by an employer to sell part of an enterprise was not
the subject of compulsory bargaining. General Motors Cor-
poration, 191 NLRB 951, fn. 7.
In said General Motors case the Board observed, "We
believe, however, that this issue [a decision to sell] is con-
trolled-by the rationale the courts have generally adopted in
closely related cases, that decisions such as this, in which a
significant investment or withdrawal of capital will effect
the scope and ultimate direction of an enterprise, are mat-
ters essentially financial and managerial, in nature. They
thus lie at the very core of entrepreneurial control, and are
not the types of subjects which Congress intended to en-
compass within `rates of pay, wages, hours of employment,
or other conditions of employment' Such managerial deci-
sions oft times require secrecy as well as the freedom to act
quickly and decisively. They also involve subject areas to
which the financial and operational considerations are like-
ly to be unfamiliar to the employees and their representa-
tives . . . A decision [of this matter] is very much `at the core
of entrepreneurial control.' " 191 NLRB 951.
In my opinion the foregoing pronouncement of the Board
extends with equal authority to an employer's decision to
close, remove, or relocate, at least for two reasons:
(a) In ruling that the decision to sell in the General Mo-
tors case was not the subject of mandatory collective bar-
gaining, the Board emphasized that it relied for direct
guidance upon court decisions rejecting the "board deci-
sions requirmg bargaining over more elemental manage-
ment decisions, such as plant closings and plant removal."
Patently the Board was thereby adopting the view of the
courts that a management decision to close (in whole or in
part), remove, or relocate an operation did not have to be
taken up with the representative of its employees. Id. at fn.
7.
In addition, the Board in said General Motors decision
quoted with approval from Fibreboard (379 U.S. 203 at 218)
that "The Court most assuredly does not decide that every
managerial decision which necessarily terminates an
individual's employment is subject to the duty to bargain."
Hence I conclude that the Board now takes the view that a
decision to close, remove, or relocate all or part of a plant
need not be discussed with a collective-bargaining agent,
and that prior Board decisions, such as Ozark Trailers, Inc.,
161 NLRB 561, 564-570, holding to the contrary, will not
now be considered authoritative. Triplex Oil Refining Divi-
sion, 194 NLRB 500, while not expressly so holding, in effect
reaches this result, for there only the effects of the decision
to close were pronounced to be compulsorily bargainable.
(b) In General Motors, supra, the Board adjudicated that
managerial decisions "lying at the core of the entrepreneuri-
al control" need not be debated by management with the
representative of the employees. I find that a decision to
close, remove, or relocate an operation is comprehended by
the phrase recited above. This is because a decision to close,
remove, or relocate embraces so many technical and com-
plicated elements that it not only falls within the peculiar
functions of management, but also partakes of such special-
ized business and industrial acumen pertaining to a particu-
lar business as to be beyond the usual competence of
employees and their collective bargaining representatives.
AMERICAN NEEDLE & NOVELTY COMPANY 543
The foregoing conclusion that the Board no longer is
bound by its earlier cases that a decision to close, remove,
or relocate is a compulsory subject of bargaining seems also
to be the interpretation placed upon General Motors, supra,
by the dissenting Board members therein. Thus they enunci-
ated in that case that theretofore "the Board has consis-
tently found a duty to bargain about the decision in cases
involving . . . plant removal, and plant closure . . . We
therefore would adhere to the Board's development of those
principles, especially as set out in Ozark Trailers, 161 NLRB
561. . . . As in Ozark, we reject the argument to compel an
employer to bargain about a decision to . . . relocate [or]
terminate . . . would significantly abridge its freedom to
manage its business. . . . We would . . . adhere to the long
line of Board decisions to terminate a portion of a business
is mandatory." In my opinion, and for the reasons outlined
above, I am of the opinion that the Board would not now
adhere to Ozark Trailers, supra, or to Thompson Transport
Co., 165 NLRB 746, to the extent that Thompson involves
an employer's decision to close a plant. Summit Tooling
Company, 195 NLRB 479, points to, if it does not compel,
such a conclusion.
Finally, I do not believe cases like Sequoyah Spinning
Mills, Inc., 194 NLRB No. 179, and Textile Workers v.
Darlington Manufacturing Co., 380 U.S. 263 (1965), control
the disposition of this issue in the case. Rather, as set forth
above, I am of the opinion that General Motors, supra, is
more closely relevant, and that it points to the result that a
decision to close is not the subject of mandatory bargaining.
Summit Tooling Company, supra, and Buckhorn Hazard Coal
Corp., 194 NLRB 557, seem to support a similar conclusion.
2. Whether the effects of the decision to close are the
subject of mandatory collective bargaining
Quite apart from the fact that Respondents were under no
duty to bargain about their decision to close down the oper-
ation in question, it seems clear that they were obliged to
bargain about the effects of that decision. Therefore they
were obliged to give the Union notice and an opportunity
to bargain over the rights of the employees whose employ-
ment status will be altered by the managerial decision to
close . N.L.R.B. v. Rapid Bindery, Inc., 293 F.2d 170, 176
(C.A. 2, 1961), enfg. on this issue 127 NLRB 212.
That the Board still holds that the effects of a decision to
close are a compulsory subject of bargaining was recently
decided in Triplex Oil Refining Division, supra, and Summit
Tooling Company, supra. Cases prior to Triplex promulgate
the same principle. N.L.R.B. v. Royal Plating Co., 350 F.2d
191, 196 (C.A. 3, 1965), enfg. on this issue 160 NLRB 990,
993-996; N.L.R.B. v. Transmarine Navigation Corporation,
380 F.2d 933, 939-940 (C.A. 9, 1967), enfg. on this issue 152
NLRB 998.
A thorough analysis of the record points to the conclu-
sion, and I find, that Respondent did not fulfill its statutory
obligation to bargain about the effects of the decision to
cease manufacturing hats at the plant involved. Upon this
aspect of the case I accept the General Counsel's evidence
and do not credit the evidence inconsistent therewith ad-
duced by the Respondents.
Thus I find that in late September 1970, when Lev, acting
for Respondents, met with Union representative Winn, Lev
declined discussing compensation or severance pay for the
employees, as requested by Winn, on the ground that he,
Lev, was not invested with "authority" and could do no
more than "relate this to Mr. Kronenberger." Patt'ntly this
conversation does not attain the stature of meaningful bar-
gaining over the effects of the decision to close on the status
of employees affected thereby.
It is true that shortly thereafter Lev wrote to Winn sum-
marizing what occurred at the foregoing meeting . See G.C.
Exhibit 4. But even here Lev asserted, among other things,
that "I will convey these suggestions [of Winn] to Mr. Kro-
nenberger, although I have no way of knowing at this time
what his decision will be either with regard to the closing of
the plant or what arrangements, if any, can be made for the
employees should the plant be closed." Although Winn tes-
tified that Lev's recapitulation in said letter of Winn's sug-
gestions is inaccurate, it is indisputable that Lev's own
abstract of the meeting manifestly discloses that he did not
discuss Winn's propositions with the latter. See G.C. Exhibit
4. See also G.C. Exhibit 7, a letter from Lev to Gore, in
which Lev declined to meet to discuss effects unless Kro-
nenberger was present also.
Nor do I find that Respondents bargained in good faith
over such effects at the meeting with the Union in October,
1970. At most the credible evidence reveals that Lev stated
that the parties had assembled on that occasion to ascertain
whether they "could come to settlement of some effects."
But when Gore, on behalf of the Union, sought information
which would aid the Union in coming to some "under-
standing on anything" it was categorically denied to him by
Lev. In my opinion no genuine bargaining took place in the
conversations of the parties at this meeting. In this connec-
tion I credit Orlove, Gore's partner, that shortly before this
October, 1970, meeting Lev informed Orlove that Lev was
meeting with Gore; that such meeting would be short, last-
ing but 15 or 20 minutes; and that Lev would not take any
of Gore's "crap" at such meeting. This fortifies the fore-
going finding that Respondent did not bargain in good faith
over effects at such October meeting as it indicates that
Respondent intended to do no more than engage in surface
bargaining.
3. Whether the parties orally agreed
upon a collective-bargaining agreement
It is not controverted that the last written collective-bar-
gaining contract executed by Respondents and the Union
became effective July 1, 1966, and expired June 30, 1969.
See G.C. Exhibit 2. And I find that said contract pertained
to an appropriate unit within the meaning of Section 9(a) of
the Act.
And I further find, crediting the General Counsel's evi-
dence and not crediting the contrary evidence of Respon-
dents, that the Union and Respondents orally agreed in
August 1969 to renew said contract ending on June 30, 1969,
for another 3 years but with the modification thereof that
wages were to be raised 10 cents an hour each year for the
next 3 years, with retroactivity to July 1, 1969. Thereafter,
Winn submitted an original and two copies of a document
(a) so renewing the old contract for 3 years and (b) incorpo-
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rating therein the foregoing modification of the former con-
tract. Additionally, I find that Kronenberger never signed
said documents and never stated in writing or orally to the
Union that they did not represent the terms agreed upon by
him and Winn. In fact, Kronenberger testified in a related
Federal Court case that "Partially the reason I haven't
signed it [the contract submitted to him by Winn] was, No.
1, he [Winn] never came back to ask for it and to get it
signed." Patently this implies that the terms of said docu-
ment were acceptable to Kronenberger. See p. 62 of G.C.
Exhibit 8.
In arriving at the finding that the parties orally agreed on
an annual increase of 10 cents an hour, as contended by the
Union, rather than 8 cents an hour, as argued by Respon-
dents, I have placed some reliance upon the fact that at no
time did Kronenberger return or offer to return the docu-
ments submitted to him by Winn with an explanation that
they did not correctly reflect the understanding of the par-
ties. This warrants the drawing of an inference-and I draw
it-that said documents did not provide for an annual 8
cents an hour increase, but rather included a 10-cent-an-
hour increase . Cf. Auto Workers v. N.L.R.B., 459 F.2d 1329
(C.A.D.C., 1972); N.L.R.B. v. Treasure Lake, Inc., 453 F.2d
202 (C.A. 3, 1971). Manifestly Kronenberger would have
protested an annual 10-cent-an-hour increase, as set forth in
said documents, if the parties had agreed upon an 8-cent
increment. Such failure to protest has probative value.
It is true that for a long period of time the Union did not
object to the fact that the employees were receiving an
8-cent-an-hour increase when the oral agreement called for
10 cents an hour. Ordinarily such failure to object tends to
confirm the fact that the 8-cent-an-hour increase paid to the
employees comports with the Union's impression of that
which the parties agreed upon. But such a principle is not
applicable here because I find that the Union was unaware
that the employees were receiving but 8 cents an hour and
that it did not discover this fact until it was so informed by
the Board's Regional Office. Hence I find that the Union's
inaction under the circumstances does not destroy or under-
mine its contention-which I find meritorious-that the
parties reached agreement upon a 10-cent-an-hour annual
increment in wages.
Nor is a different result dictated because the employees
themselves did not complain of an increase less than that
agreed upon. This is because nothing in the record indicates
or suggests that the employees were cognizant of a shortage
in their wages. For example, nothing in the record shows
that they received an itemized statement indicating the ex-
act amount of the increase in terms of cents per hour, less
statutory and other deductions. On the state of the record
before me I am unable to find that the manner in which they
were compensated alerted them to the fact they were receiv-
ing an increase of but 8 cents an hour. Accordingly, I find
that the failure of the employees to complain is not fatal to
a finding that the parties agreed upon an increase of 10 cents
an hour.
Since the parties arrived at a mutual oral understanding
on all the terms of a contract Respondents thereby were
placed under a statutory onus to sign a written contract
embodying such terms. I find that such a contract was pre-
sented to Kronenberger by Winn for signature. Failure to
execute such contract by Respondents constitutes an unfair
labor practice . H. J. Heinz Company v. N.L.RB., 311 U.S.
514, 523-526. See Section 8(d) of the Act.
4. Whether Respondent unilaterally increased wages
Paragraph XIII(f) of the complaint as amended on July
22, 1971 (See G.C. Exh. 1(ii) ), alleges that Respondents,
from August, 1969, to about November 9, 1970, unilaterally
instituted an 8-cent-an-hour raise in wages effective July 1,
1969, and another 8-cent-an-hour raise in July 1970, without
bargaining thereon with the Union.
It is not denied that Respondent did raise the wages of
employees as alleged in the complaint. But Respondents
defend such increments on the ground that they were adopt-
ed pursuant to a contract agreed upon between them and
the Union. However, as found above, the understanding
reached by the parties provided for increments of 10 cents
an hour during the periods involved. Accordingly I further
find that when Respondents, without consulting the Union,
paid wages in derogation of an existing contract, they failed
to bargain with the Union.
While it is true that such conduct by Respondents consti-
tutes a breach of contract which may be remedied in anoth-
er forum, it "in effect unilaterally changes the wages of
employees . . . and thus violates Section 8(a)(5) of the Act."
George E. Light Boat Storage, Inc., 153 NLRB 1209, fn. 1,
enfd. on this issue 373 F.2d 762, 767-769 (C.A. 5, 1967). "A
unilateral altering of a condition of employment is thus
legally tantamount to a refusal to bargain." N.L.R.B. v.
Frontier Home Corporation, 371 F.2d 974,979 (C.A. 8,1967).
Where the act of the employer constitutes both an unfair
labor practice and a breach of contract, both the courts and
the Board are vested with jurisdiction to give relief for the
wrong. Smith v. Evening News Association, 371 U.S. 195
(1962); N.L.R.B. v. Strong Roofing and Insulating Co., 393
U.S. 357 (1969).
5. Whether Respondents have unlawfully failed to remit
checked off union dues and to make certain payments
prescribed in the' contract
It is undisputed that Respondents checked off union dues
for a specified period after July 1, 1969, but did not remit
some of these to the Union. They now maintain that, since
no contract existed after July 1, 1969, they were under no
obligation to transmit such dues to the Union. (It is difficult
to comprehend this argument, as Respondents insist they
had a contract from July 1, 1969 for 3 years which justified
the 8-cent-an-hour increase in wages discussed above.)
As I have found above that the parties orally agreed on
a complete contract, and that such contract was binding
upon them for 3 years beginning July 1, 1969, I further find
that Respondents were required by that contract to check
off such union dues for which employees signed written
authorizations and to remit the same to the Union. The
terms of such obligation may be found in G.C. Exhibit 2,
which I have found was orally extended, with modifications
not here material, by the parties for a period of 3 years. See
article III-thereof. Since Respondents failed to remit such
dues since July, 1970, 1 find that they thereby violated Sec-
AMERICAN NEEDLE & NOVELTY COMPANY 545
tion 8(a)(5) and (1) of the Act. George E. Light Boat Storage
Inc., supra, In. 1.
As recited elsewhere in this Decision, I have found that
the parties renewed G.C. Exhibit 2 with modifications for
a period of 3 years from July 1, 1969. Article IX thereof
imposes an obligation on the employer to contribute specif-
ic sums of money to union health, welfare, and retirement
funds. Admittedly Respondents have not made some pay-
ments called for by said article IX after July, 1970. They
have resisted paying said contributions on the ground that
no contract was in force after June 30, 1969. But as set forth
supra I have found that the parties orally extended G.C. 2,
with modifications not now material, for a period of 3 years
beginning July 1, 1969. And I have also found elsewhere
herein that such oral contract is valid and binding upon the
parties. Accordingly, I find that the failure of Respondents
to make these payments transgresses Section 8(a)(5) and (1)
of the Act. George E. Light Boat Storage, Inc., supra, fn. 1.
To some extent Kronenberger confirms the conclusion that
a contract existed, for in a companion federal court case he
testified that "no particular reason" existed for discontinu-
ing such payments." See pp. 65 and 69 of G.C. Exhibit 8.
6. Whether the Union is entitled to certain information
and the right to have an industrial engineer in the plant
for certain purposes
It is now elementary that an employer who claims eco-
nomic hardship is under a statutory mandate to supply,
when requested, relevant information which will aid the
representative of his employees in effective bargaining.
N.L.R.B. v. Truitt Manufacturing Co., supra. In the instant
case I credit the General Counsel's evidence that Lev, at the
meeting of October 7, 1970, as counsel for Respondents
informed the union representatives that the Chicago plant
was being closed "for economic reasons. We are not making
enough money." I find that, as a result of such claim by Lev,
Respondents were required to furnish information pertinent
to-such claim, when Gore , as counsel for the Union, asked
for it.
The question then is whether Lev adequately responded
to Gore's demand for information as to income, a financial
report, and books and records relating to the financial con-
dition of Respondents in order, according to Gore, to ena-
ble the Union to negotiate intelligently. Since Lev's reply to
Gore's request was a curt "None of your business," I find
that Respondents failed to fulfill their statutory duty in this
respect.
However, at this meeting Gore also asked for a list of the
customers and the competitors of Respondent. All that Lev
gave in reply thereto was the identity of a single competitor,
viz., International Hat Company. It is my opinion, and I
rule, that the Act does not compel employers to disclose
information relating to such subjects. Accordingly, I find
that Respondents have not failed to bargain in good faith
by denying this class of information to the Union.
At said meeting Gore also sought permission, without
success, to have an industrial engineer admitted into the
plant gat the Union's expense to make an "efficiency valua-
tion: ' In some instances an employer is required to tolerate
aunion's industrial engineers coming into his plant to make
time studies. The Fafnir Bearing Company, 146 NLRB 1582,
enforced 362 F.2d 716 (C.A. 2, 1966). But I am not aware
of any case which has granted a Union permission to have
its industrial engineer enter an employer's plant merely to
make studies pertaining to an employer's efficiency in oper-
ating his plant.
Since no cases offer direct guidance on this issue the
question then is to ascertain which such studies are fairly
comprehended by the legislative design requiring employers
to bargain in good faith with a union representing his em-
ployees. It is my opinion, and I rule, that studies of this
nature are neither part of the bargaining process nor consti-
tute information, and, therefore, may not be demanded by
a union as a matter of right. Hence I deem Fafnir Bearing,
supra, as inapplicable to the instant case. Accordingly, I find
that denying permission to make such studies by the Union
is not an unfair labor practice.
7. Comment on a question of evidence raised by Re-
spondents
Respondents called Mr. Winn, the Union's representa-
tive, as a witness under Rule 43(b) of the Rules of Civil
Procedure for the United States District Courts. In perti-
nent part this rule reads
A party may call an adverse party or an officer, direc-
tor, or managing agent of a public or private corpora-
tion or of a partnership or association which is an
adverse party, and interrogate him by leading ques-
tions and contradict and impeach him in all respects as
if he had been called by the adverse party, and the
witness thus called may be contradicted and im-
peached by or on behalf of the adverse party also and
may be cross-examined by the adverse party only on the
subject matter of his examination in chief. [Emphasis
supplied.]
At the trial I ruled that Winn, having been called by Lev,
counsel for Respondents, was Lev's witness, that Lev could
impeach and contradict Winn, and could ask Winn leading
questions, but could not cross-examine Winn. In his brief,
as at the trial, Lev insists that it was error to prevent him
from cross-examining Winn and to rule that Winn was Lev's
witness when put on the stand by Lev.
Patently Winn was Lev's witness, for the rule describes
Winn's testimony under the circumstances as "examination
in chief." Further, the rule explicitly grants the right to
cross-examine only to a party adverse to Respondents and
not to Respondents. Cases cited by Lev in his brief do not
require a contrary construction of Rule 43(b). However, one
of them, N.L.R.B. v. Garfunkel, 162 F.2d 256 (C.A. 2), does
state in one sentence that it was not error to allow the Board
to cross-examine witnesses whom it had called under Rule
43(b). At most this indicates that the right to cross-examine
rests in the discretion of the Trial Examiner. If it means
more than that I feel obliged not to follow it as it erroneous-
ly interprets Rule 43(b).
In any event I perceive no harm which could have result-
ed to Lev by denying him the opportunity to cross-examine
Winn, as Lev was not denied the right to ask Winn leading
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
questions or to contradict and impeach Winn.
IV. THE EFFECTS OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III,
above, found to constitute unfair labor practices, occurring
in connection with their operations described in section I,
above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
As Respondent have been found to have engaged in un-
fair labor practices I shall recommend that they be ordered
to cease and desist therefrom and that they take specific
action, as set forth below in the recommended Order, de-
signed to effectuate the policies of the Act. The conduct of
Respondents does not reflect a general disregard or hostility
to the Act, and I so find. Accordingly, I find that a broad
remedial order against Respondents is not warranted. Rath-
er, I find it will effectuate the policies of the Act to enjoin
Respondents from repeating the conduct found above to
constitute unfair labor practices and similar or like conduct.
Upon the foregoing findings of fact and the entire record
in this case, I make the following:
welfare, and retirement funds payments required by said
collective-bargaining agreement.
(f) Failing or refusing to sign the written contract agreed
upon by the parties in August 1969 although requested to
do so by the Union.
5. An appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act com-
prises all employees who were employed by Respondents at
their American Needle & Novelty Company factory at 2846
West North Avenue in Chicago, Illinois, excluding the of-
fice clerical staff and supervisors as defined in the Act.
6. At all times material herein the Union has represented
a majority of the employees in the above unit and has been,
and is' now, the exclusive collective-bargaining representa-
tive of all the employees in the unit described above, and
Respondents are now, and have been at all times material
herein, legally obligated to recognize and collectively bar-
gain with the Union as such representative.
7. An employer's decision to close down part or all of a
manufacturing plant is not the subject of mandatory collec-
tive bargaining with a labor organization representing the
employees involved by said decision.
8. The unfair labor practices recounted above affect
commerce within the contemplation of Section 2(6) and (7)
of the Act.
9. Respondents have not committed any other unfair la-
bor practices alleged in the complaint.
[Recommended Order omitted from publication.]
Conclusions of Law
1. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. Respondents as copartners constitute an, employer
within the meaning of Section 2(2) of the Act. As such
employer they operate American Needle and Novelty Com-
pany, Harrisburg Manufacturing Company, and Kentucky
Manufacturing Company, as a single, integrated, multiplant
enterprise with common ownership, common management,
and a centralized labor relations policy.
3. Respondents as copartners are an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
4. Respondents have committed unfair labor practices
condemned by Section 8(a)(5) and (1) of the Act by:
(a) Failing or refusing to bargain with the Union con-
cerning the effects of the decision to end or close the pro-
duction operations of American Needle and Novelty
Company-
(b) Failing or refusing, upon request, to provide the
Union with relevant information to enable the Union to
bargain over the effects of said decision.
(c) Varying the terms of a contract by unilaterally insti-
tuting a pay raise of 8 cents an hour in 1969 and 1970, when
the contract between the parties called for a 10-cent-an-
hour raise, without bargaining thereon with the Union.
(d) Failing or refusing to remit checked off union dues to
the Union pursuant to the collective-bargaining agreement
covering employees in the appropriate unit described below,
reached by the parties in August, 1969.
(e) Failing or refusing to transmit to the Union's health,
SUPPLEMENTAL DECISION
JAMES V. CONSTANTINE, Administrative Law Judge: This
case was originally tried on August 3, 4, and 5, 1971. Then
it was continued indefinitely pending enforcement of a sub-
poena duces tecum issued on behalf of the Charging Party
and directed to Samuel Winn. Following enforcement
thereof, I ordered on December 13, 1971, that the case be
resumed on January 11, 1972.
Thereafter on December 28, 1971, the Respondent filed
a motion for a continuance. This was denied. Instead of
appealing therefrom, so that, if I was wrong, the Board,
prior to said January 11, could continue the case to another
date, Respondent did nothing. However, its attorney, Mr.
Lev, telephoned me on or about January 7, 1972, from
Chicago, Illinois, asking me orally to reconsider his motion
foua,continuance. In this telephone conversation, Mr. Lev
stated that he thought I should not come to Chicago on
January 11, 1972, because he would not be ,present at the
trial on that date, and gave me the,impression that he would
appeal my decision to the Board, and that the Board would
sustain his appeal. If he had appealed the Board could have
set another date; but he did not appeal.
The reasons for denying Mr. Lev's motion for a continu-
ance were stated at the hearing held on January 11, 1972,
and are set forth in the transcript for that date. They are that
the record shows that Mr. Lev requested and obtained a
continuance of the hearing ' on December 4, 1970; then
again for the hearing rescheduled on March 31, 1971; then
again on May 10, 1971, for the rescheduled hearing; then
again on June 21, 1971, for the rescheduled hearing. Finally
the case was tried in August 1971. 1 thought that further
AMERICAN NEEDLE & NOVELTY COMPANY 547
delay was not warranted.
Following my decision on the merits on March 24, 1972,
Lev renewed his motion for a continuance, and the Board
granted Lev's motion to continue the case, notwithstanding
he could have appealed before January 11 and thus avoided
an unnecessary hearing on January 11. Finally the case was
resumed on October 17, 1972. Even then Lev expressly stat-
ed that he could not return the next day if the trial did not
conclude on October 17, 1972. Apparently I would again
here have been reversed by the Board if the trial had not
been completed on October 17 and I had proceeded with the
trial on October 18, 1972. -
At the resumed hearing on October 17, 1972, a witness,
Mr. Dombrow, subpenaed by both the Charging Party and
the Respondent, failed to appear. The case finished that day,
except for Dombrow's testimony. It was then continued on
December 5, 1972, to receive his testimony. In the meantime
the General Counsel's motion to quash Dombrow's supena
was granted. Hence, the case is now ripe for final decision.
Additional Evidence Adduced on October 17, 1972
The principal witness at the hearing resumed on October
17,1972, was Samuel Winn. His testimony may be summa-
rized as follows:
Winn first learned about 3 weeks before August 3, 1971,
that American Needle was paying an increase of 8 cents an
hour, instead of 10 cents an hour, to the employees in the
bargaining unit from and after August 1969. He was so
informed by Mr. Dombrow, counsel for the General Coun-
sel of the N.L.R.B. Further, Winn insisted he had no knowl-
edge of this prior to July 1971, notwithstanding he met with
Mr. Kronenberger in July or August 1969.
In addition, Winn confessed that, although he was a
union representative for 39 years, he was not aware that
"retirement payments by American Needle are computed
on gross wages of the employees." However, he "assumed"
tha1in, August 1969, and thereafter, "that is the case" as to
"paynents;by a' company-to the retirement fund." Later in
his testimony Winn stated that retirement fund contribu-
tions are based on gross wages of an employee. However,
the Union's bookkeeper, and not Winn, checks the accuracy
of payments by an employer to the retirement fund. But
Winn is invested with the authority to examine said pay-
ments to determine if the amount is correct and whether it
is paid "on time." Pursuant to that authority Winn did
check some payments to the retirement fund "from time to
time." But he was unable to ascertain whether American
Needle's contributions to said fund were accurate because
the number of hours worked by each employee, which was
usually given by other employers, was not stated by Ameri-
can Needle. See Charging Party's Exhibits B, C, D, and E.
And although Winn asked Kronenberger of American Nee-
dle to submit such hours, the latter never complied with
such request. American Needle's-employees did not work a
full week every week.
Winn also stated he did not know from the Union's re-
cords whether American Needle's employees worked over-
time. But he knew that their standard workweek was 37-1/2
hours. Since Winn did not know the number of hours such
employees worked in a week he had no way of determining
whether American Needle was "making the right pay-
ments" to the retirement fund. Winn did ask said company
for the hours worked by each employee "but the bookkeep-
er used to answer we haven't got the time to give you." A
certified public accountant, and not Winn, monthly reviews
the books of the Union: but at no time did he inform Winn
that American Needle's payments to the retirement fund
were less than they should have been.
Some of American Needle's employees are paid by the
hour and others by the piece. But Winn cannot tell from the
information supplied by said company in connection with
its contributions to the Union's health fund which employ-
ees were paid by the piece or the hour. This is because said
information omitted any mention of hours worked by an
employee. However, Winn did not ask Kronenberger for
such information because the employees only worked "part-
time." But Winn did ask Kronenberger "25 times every
year" to "furnish the number of hours" worked by each
employee, but without success.
Winn additionally stated that the Union's records do not
reflect the number of hours each employee worked for an
employer making payments to the Union's retirement
funds ; however, some employers, but not American Needle,
do furnish such information. But Winn takes an employer's
word that payments to the fund'are correct. Also, nothing
can be done about an employer's refusing to provide the
Union with the number of hours worked by an employee
because "we can't enforce it . . . it's not in the agreement."
American Needle purchases union labels . However,
Winn could not ascertain from the amount paid by it for
such labels whether the increase in wages after August 1969
was 8- cents or 10 cents an hour. Nor are dues, which Re-
spondent checks off, based on hourly earnings. Dues are
deducted at a specific flat rate each week.
On or about December 9, 1970, -upon instructions from
Winn, Attorney-Gore brought suit for the Union against
Respondent in the United States District Court in Chicago
for breach of the collective-bargaining contract. Prior to this
Winn had neither filed any grievances nor orally protested
to Kronenberger that Respondent was paying an increase
of 8 cents rather than 10 cents an hour. And no employees
complained to Winn that they were receiving an increase of
8 cents instead of 10 cents an hour.
In an affidavit given to the Board on October 14, 1970,
Winn asserted, among other things, "The Company has
paid the 10¢ per hour increase in July of 1969 and in July
of 1970. The Company has also paid the Health & Welfare
& Pension benefits from July of 1969 through June of 1970.
The Company has not paid the Health & Welfare & Pension
benefits for July, August & September of 1970." (See pp. 4
& 5 of Resp. Exh. 7.) Winn "took for granted [Respondent]
paid the 10 cents an hour," and did'not learn that but 8 cents
an hour was being paid until Dombrow so informed him
about 3 weeks before the trial commenced in this case on
August 3, 1971.
Winn also testified that Kronenberger agreed with him to
make the raise in pay retroactive to the date when the previ-
ous contract expired in 1969, and that this was done. But
Winn added, "Whether he gave 8 cents on the backpay or
if he gave them 10 cents on the backpay-I don't know."
However, Winn never asked how much the retroactive raise
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
amounted to -because he "took for granted " it was 10 cents
an hour. In fact no employee complained to Winn about the
inadequacy of the raise. Finally, Winn testified that he and
Kronenberger orally agreed that the contract which expired
in 1969 was renewed for 3 years and that there was orally
added to it a supplemental agreement that wages were to be
increased 10 cents an hour each year for said 3 years.
The only other witness from whom evidence was adduced
at the resumed hearing on October 17, 1972, is Theodore
Zelewsky. In substance he testified as follows: As Interna-
tional representative of the Union he is familiar with, and
described, how union labels may be obtained by a manufac-
turer. However, he limited such procedure to Harrisburg -
Manufacturing Company and Kentucky Manufacturing
Company, as he was unfamiliar whether similar procedures
applied to American Needle.
Additional Findings and Discussion
The record of the August 1, 1971, hearing definitely dis-
closes that Kronenberger and Winn orally agreed to renew
for 3 years the collective-bargaining contract which expired
in 1969. Nothing in the record unfolded at the trial resumed
on October 17, 1972, detracts from or undermines said con-
clusion. Accordingly, I readopt and reaffirm the finding
made in my decision of March 24, 1972, that Respondent
and the Union orally agreed at least to renew for 3 years the
contract which expired in 1969.
In addition, I find that nothing was developed at said
October 17 hearing to affect the finding made in my said
decision of March 24 that Respondent failed or refused to
bargain with the Union over the effects of the decision to
end or close down the production operations of American
Needle and Novelty Company. It follows that I reaffirm
and readopt said finding of the March 24 decision upon this
branch of the case.
Further, it is ' manifest that none of the evidence adduced
at said October 17 hearing affects the finding made in said
March 24 decision that Respondent failed or refused to
transmit checked off union dues, and union health , welfare,
and retirement fund payments , pursuant to the terms of the
3-year contract orally reached in 1969, covering employees
in the appropriate unit . Such new oral agreement, to the
extent not in dispute (i.e., insofar as it renews the contract
terminating in 1969) provided for such payment of checked-
off dues, and union health, welfare, and retirement funds
for a period of 3 years. Hence I readopt and reaffirm said
finding of the March 24 decision upon this aspect of the
case.
Then, again, none of the evidence adduced at said Octo-
ber 17 hearing requires revision or modification of the find-
ing in said March 24 decision that Respondent failed or
refused to provide the Union with relevant information
which would enable the Union to bargain concerning, the
effects of Respondent's decision to cease or close down the
production operations of American Needle and Novelty
Company. Consequently, I readopt and reaffirm said find-
ing of March 24 upon this issue.
The remaining-and most important- question is whether
any evidence introduced at said October 17 resumed hear-
ing leads to the conclusion that the parties orally agreed in
1969 to increase wages 8 cents rather than 10 cents an hour
annually for the next 3 years. In said decision of August 24,
1972, I found that the parties orally agreed on an annual
10-cent-an-hour increase for a period coterminous with the
expiration of the written contract orally extended by Winn
and Kronenberger for 3 years.
An appraisal of the entire record, including the evidence
introduced at the said October 17 hearing , convinces me,
and I find, that Kronenberger and Winn in 1969 orally
agreed to renew for a period of 3 years the contract expiring
in 1969 but with, one modification. That modification pro-
vided that the hourly rate of employees in the bargaining
unit was to be annually increased 10 cents an hour for the
term of said new contract.
While the finding in the foregoing paragraph was origi-
nally made in my decision of March 24, 1972, I hereby
readopt and reaffirm it. Nothing in Winn's testimony on
October 17, 1972, which I hereby credit, causes me to arrive
at any other conclusion; and, in particular, nothing in said
testimony causes me to find that the parties in 1969 orally
agreed upon an annual increase of 8 cents an hour rather
than 10 cents an hour. In arriving at this finding I have
reviewed the entire record and, upon such review, (1) credit
Winn that the parties agreed upon an increase of ld'cents,
and not 8 cents, an hour; and (2) do not credit Kronenber-
ger to the extent that Kronenberger is contradicted by
Winn.
The hearing of October 17, 1972, reinforces my convic-
tion that the parties orally agreed upon a 10-cent-an-hour
annual increase under the new oral contract of 1969, and
that they did not agree that such increase should be but 8
cents an hour. And said hearing of October 17 produced no
creditable evidence which, would lead me to infer that they
agreed upon an 8-cent-an-hour augment or that Winn was
aware that Respondent was paying but 8 cents an hour
additionally. Hence it is not necessary to decide whether the
Union ratified an 8-cent-an-hour increase and waived the
10-cent increase in view of Respondent's argument that
Winn allegedly had knowledge that the employees were
receiving 8 cents an hour more.
Thus I find that Winn creditably testified on October 17,
1972, that he first became aware that Respondent was pay-
ing but an 8-cent-an-hour increase about 3 weeks before the
trial in this case in August 1971, and that he learned of
Respondent's failure to pay the 10-cent -an-hour increase
from Dombrow, the General Counsel's attorney . I also find
that no employee complained to Winn that the increase
amounted to but 8 cents an hour, and that, because of the
manner in which the employees were paid, their checks did
not alert them to the fact that their wage increase was limit-
ed to 8 cents an hour. And I further find that, because of
the method of computing Respondent's contributions to the
Union's various funds,, such as the health, fund and the
retirement fund, the Union was not put on notice that the
wage increase was 8 cents , rather than 10 cents , an hour.
(See Union Exh. B, C, D, and E).
Accordingly, upon reassessing the entire record in the
AMERICAN NEEDLE & NOVELTY COMPANY 549
light of the evidence received at the hearing of October 17, dopt the Remedy, Conclusions of Law, recommended
1972, I reaffirm and readopt the findings made in my Deci- Order, and notice to be posted as set forth in my said Deci-
sion of March 24, 1972, It follows, that I reaffirm and rea- Sion of March 24.