Comar, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 2003

339 N.L.R.B. 903 (N.L.R.B. 2003)

COMAR, INC. 903
Comar, Inc. and American Flint Glass Workers Un-
ion of North America, AFL–CIO. Case 4–CA–
28570
July 31, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On August 2, 2001, Administrative Law Judge Wil-
liam G. Kocol issued the attached decision. The Respon-
dent filed exceptions, a supporting brief, and a motion to
reopen the record.1 The General Counsel and the Charg-
ing Party filed cross-exceptions, supporting briefs, and
answering briefs to the Respondent’s exceptions. The
General Counsel and Charging Party filed oppositions to
the Respondent’s motion to reopen the record.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions2 and
to adopt the recommended Order as modified.3
We agree with the judge that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing to bargain
with the Union concerning the effects on employees of
the Respondent’s relocation of its applicator division
from Vineland, New Jersey, to Buena, New Jersey. We

1 We deny the Respondent’s motion to reopen the record but note
that the Respondent can offer, in compliance proceedings, evidence of
changes in its operations that occurred after the hearing, to the extent
that such changes might affect the remedy.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s finding that the Respondent failed to recog-
nize the Union as the bargaining representative of the relocated Vine-
land employees, Chairman Battista finds it unnecessary to rely on the
fact that at least 40 percent of the Vineland unit relocated to Buena.
Westwood Import Co., 251 NLRB 1213 (1980); Harte & Co., 278
NLRB 947 (1986). The Chairman notes that all of the employees per-
forming the relocated work at Buena transferred from the Vineland
unit.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) by failing to recognize and bargain with the Union, we agree
that the Vineland bargaining unit maintained its integrity after its relo-
cation to the Buena facility (see, e.g., Radio Station KOMO-AM, 324
NLRB 256, 262–263 (1997)), although we find that this case does not
present an accretion issue.
3 We have modified the Order in accordance with Ferguson Electric
Co., 335 NLRB 142 (2001). We will substitute a new notice in accor-
dance with our recent decision in Ishikawa Gasket America, Inc., 337
NLRB 175 (2001).
further agree that a Transmarine4 limited backpay rem-
edy is warranted to remedy the Respondent’s effects bar-
gaining violation. We find merit in the General Coun-
sel’s cross-exceptions to the judge’s failure to extend the
Transmarine limited backpay remedy to all unit employ-
ees, including those who transferred to the Respondent’s
Buena facility. Accordingly, we hereby modify the
judge’s remedy to conform to the Order herein.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Comar,
Inc., Buena, New Jersey, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(j):
“(j) Pay to the unit employees their normal wages
when in the Respondent’s employ from 5 days after the
date of this decision until the occurrence of the earliest of
the following conditions: (1) the date the Respondent
bargains to agreement with the Union on those subjects
pertaining to the effects of the relocation of the unit em-
ployees from Vineland to Buena, New Jersey; (2) the
date a bona fide impasse in bargaining occurs; (3) the
failure of the Union to request bargaining within 5 busi-
ness days after receipt of this decision, or to commence
negotiations within 5 business days after receipt of the
Respondent’s notice of its desire to bargain with the Un-
ion; or (4) the subsequent failure of the Union to bargain
in good faith; but in no event shall the sum paid to any
employee exceed the amount that he or she would have
earned as wages from the date of the relocation of the
unit employees to the time he or she secured equivalent
employment; provided, however, that in no event shall
this sum be less than these employees would have earned
for a 2-week period at the rate of their normal wages
when last in the Respondent’s employ at Vineland, with
interest.”
2. Substitute the following for paragraph 2(k):
“(k) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
4 Transmarine Navigation Corp., 170 NLRB 389 (1968).
339 NLRB No. 110
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 904
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail or refuse to recognize the American
Flint Glass Workers Union of North America, AFL–CIO
as the collective-bargaining representative of the em-
ployees in the unit.
WE WILL NOT change the terms and conditions of em-
ployment covered in the collective-bargaining agreement
of unit employees without first obtaining the Union’s
consent.
WE WILL NOT unilaterally change other terms and con-
ditions of employment of unit employees without first
giving the Union notice and an opportunity to bargain
over those changes.
WE WILL NOT condition continued employment on the
acceptance of unlawfully implemented changes in terms
and conditions of employment, thereby discharging em-
ployees.
WE WILL NOT fail or refuse to provide the Union with
requested information that is relevant and necessary for
the Union to fulfill its role as the collective-bargaining
representative of the unit employees.
WE WILL NOT fail or refuse to bargain in good faith
with the Union concerning the effects on unit employees
of the relocation of unit work to the Buena facility.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, recognize and bargain with the
Union and put in writing and sign any agreement reached
on terms and conditions of employment for our employ-
ees in the bargaining unit:

All hourly paid production workers who are perform-
ing the work that was formerly done as part of the Ap-
plicator Division of Comar, Inc., at its facility then lo-
cated in Vineland, New Jersey, except plant executives,
salesmen, office employees, janitors, watchmen and
foremen, as excluded by the provisions of the Labor
Management Relations Act of 1947 as amended.

WE WILL, on request, rescind the unlawful changes
made in the terms and conditions of employment of the
unit employees.
WE WILL make the unit employees whole for any loss
of earnings or benefits they suffered as a result of the
unlawful changes made in the terms and conditions of
their employment, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, offer those unit employees who did not transfer to
Buena, New Jersey, full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL make those employees whole for any loss of
earnings and other benefits resulting from their dis-
charge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of those employees, and WE WILL, within 3
days thereafter, notify them in writing that this has been
done and that the discharges will not be used against
them in any way.
WE WILL, on request, furnish the Union with informa-
tion relevant and necessary to the Union’s function as
your exclusive collective-bargaining representative.
WE WILL, on request, meet and bargain collectively in
good faith with the Union concerning the effects on unit
employees of our decision to relocate unit work to the
Buena facility and, if any understanding is reached, WE
WILL embody it in a signed agreement.
WE WILL pay to the unit employees their normal wages
when in our employ from 5 days after the date of this
decision until the occurrence of the earliest of the follow-
ing conditions: (1) the date we bargain to agreement with
the Union on those subjects pertaining to the effects of
the relocation of the unit employees from Vineland to
Buena, New Jersey; (2) the date a bona fide impasse in
bargaining occurs; (3) the failure of the Union to request
bargaining within 5 business days after receipt of this
decision, or to commence negotiations within 5 business
days after receipt of the notice of our desire to bargain
with the Union; or (4) the subsequent failure of the Un-
ion to bargain in good faith; but in no event shall the sum
paid to any employee exceed the amount that he or she
would have earned as wages from the date of the reloca-
tion of the unit employees to the time he or she secured
equivalent employment; provided, however, that in no
COMAR, INC. 905
event shall this sum be less than these employees would
have earned for a 2-week period at the rate of their nor-
mal wages when last in our employ at Vineland, with
interest.

Henry R. Protas, Esq., for the General Counsel.
Howard K. Trubman, Esq. (Dilworth Paxson, LLP), of Phila-
delphia, Pennsylvania, for the Respondent.
James R. LaVaute, Esq. (Blitman & King), of Syracuse, New
York, for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Philadelphia, Pennsylvania, on May 21–22, 2001.
The charge and amended charges were filed September 10,
October 4 and 19, 1999,1 January 3, 2000, and February 6,
2001. The complaint was issued February 7, 2001. It alleges
that Comar, Inc. (Respondent) violated Section 8(a)(5) and (1)
of the Act by refusing to provide the American Flint Glass
Workers Union of North America, AFL–CIO (the Union) with
certain information, by consolidating operations from two fa-
cilities without bargaining about the effects of the consolidation
on unit employees, by failing and refusing to bargain with the
Union for a successor collective-bargaining agreement, by fail-
ing and refusing to recognize the Union as the collective-
bargaining representative of the unit employees, by unilaterally
establishing new wages and other terms of employment, and by
constructively discharging 20 employees who refused to accept
the new terms of employment. Respondent filed a timely an-
swer that admitted the allegations of the complaint concerning
the filing and services of the charge, jurisdiction, labor organi-
zation status, and collective-bargaining history. Respondent
denied the remaining allegations in the complaint.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and the Union, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, has facilities in Vineland and
Buena, New Jersey,3 where it has been engaged in the manufac-
ture of packaging products and medical device components for
pharmaceutical, health care, and personal care customers and
where it annually sold and shipped goods valued in excess of
$50,000 directly to points outside the State of New Jersey.
Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.

1 All dates are in 1999 unless otherwise indicated.
2 The Union’s unopposed motion to correct transcript is granted. P.
210, L. 8 of the transcript is corrected to read: “I want to ask you at
that . . . .”
3 Respondent also has an operation in Puerto Rico. That facility is
not involved in this proceeding.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
As indicated, Respondent has facilities in Buena and Vine-
land,4 New Jersey. The facilities are about 10 miles apart.
Before the consolidation that occurred on September 27, which
is more fully described below, Gene Concordia was Respon-
dent’s executive director of operations. Concordia oversaw the
operations of both facilities. During the times relevant to this
proceeding, Ellen Duffy was director of human resources.
Concordia and Duffy had their offices at the Buena location.
The Vineland facility had its own plant manager, Larry Ne-
her. Reporting to Neher was Ron Schultz, supervisor for the
first shift, and Keith Anderson, supervisor for the second shift.
Rose Gabriel, quality control supervisor, also reported to Ne-
her. The Union has represented employees at the Vineland
facility since 1955. Respondent purchased the facility in 1983
and recognized the Union. The most recent contract, which is
between Respondent’s applicator division and the Union, ran
from October 1, 1996, through September 30, 1999. That con-
tract described the unit as:

[A]ll hourly paid production workers, except plant ex-
ecutives, salesmen, office employees, janitors, watchmen
and foremen, who are working in the plant on Castpa
Place and Edrudo Road, Vineland, New Jersey, as ex-
cluded by the provisions of the Labor Management Rela-
tions Act of 1947 as amended.
This labor contract applies solely to the employees at
the Applicator Division of Comar, Inc. It does not apply
to other employees of Comar, Inc.

The unit employees assembled droppers, the devices that are
used to apply eye drops, for example. They did so by using
rotary machines that assembled about 40 parts per minute.
These machines were used to do small runs. It took a good deal
of experience to become skillful at efficiently operating the
rotary machines. As Respondent’s former executive director of
operations explained: “[T]hat rotary department took a little bit
of training, it took a little bit of a knack to learn that, so you
couldn’t expect any of us in this room to, within a couple of
days, sit down at the rotary wheel and start to do that work. It
took many, well, the ones that were really good, it took years to
get really good at.” The unit employees also operated machin-
ery that stamped calibrations on the pipette portion of the drop-
per and that wrapped the assembled droppers in cellophane.
Immediately prior to the consolidation there were about 50
employees in the unit. The parties often refer to this operation
as the applicator division and to these employees as applicator
employees.
John Ford was the plant manager at the Buena location; he
was responsible for the work in the four departments: finishing,
blow mold, ejection mold, and seals. Each department had its
own department head. The Buena location actually consists of
four buildings. One building houses the corporate headquarters
4 Respondent actually has two facilities in Vineland. The second fa-
cility, known as the glass division, produces glass vials. That facility is
not involved in this proceeding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 906
staff. Across the street is a building that houses the finishing
department. The next building is the main factory and housed
the molding operations and warehouse; it also had an area
known as the seal’s department.5 The fourth building housed
the machine shop and cafeteria.
The employees in the finishing department at Buena also as-
sembled droppers, but generally they were not the same drop-
pers as were assembled by the unit employees in Vineland.
Unlike the unit employees, the Buena finishers used high-speed
machines that assembled 275 to 300 parts per minute. The
employees who operated these machines worked essentially as
attendants, loading the machines with the necessary compo-
nents and performing routine quality control checks. Operation
of this equipment therefore required less skill than the operation
of the rotary machines used by the unit employees at Vineland.
It was inefficient, however, to use these high-speed machines
for small runs; those runs were more efficiently done using the
rotary machines at the Vineland facility. Employees in the
finishing department at Buena also operated high-speed wrap-
ping machines that wrapped the droppers in cellophane. They
also operated machines that stamped calibrations on the pipette
portion of the dropper. There was also a lining operation and
heat-sealing work performed there. Before September 27 about
65–70 employees worked in the finishing department in Buena.
The employees in the molding department at Buena manufac-
tured parts that were assembled by the employees in the finish-
ing department in Buena and by the unit employees in Vine-
land. However, about 20 to 30 percent of the products that they
assembled were from outside sources. The parties frequently
refer to the Buena operation as the plastic’s division and to
these employees as the plastics’ employees.
B. Consolidation, Bargaining, and Information Requests
On April 27, Martin Sobol, an attorney and Respondent’s
representative for purposes of dealing with the Union, sent
identical letters to the Union and to the national headquarters of
the American Flint Glass Workers Union, AFL–CIO. The let-
ters stated that Respondent was then considering a potential
consolidation of its existing facilities, including the applicator
division. The letter indicated that such a consolidation could
result in the closing of the Vineland facility, and advised that
should a decision to consolidate be made it would be imple-
mented in the summer or early autumn. The letter invited the
Union to contact Sobol if the Union wished to discuss or bar-
gain about the matter.
The Union first requested information relating to the pro-
posed consolidation by letter dated May 4. In that letter the
Union stated:

You state that the Company is presently considering a
potential consolidation. Please advise the Union as to
where this consolidation stands, that is, at what stage of
the Company’s evaluation process is the matter? Also,
kindly provide copies of any internal or external studies,
analyses, reports or recommendations, and any memoran-

5 This area contained several metal stamping machines that produced
crimp top seals that are used as a component part for injectable drug
dispensers.
dum or other writings dealing with the potential consolida-
tion.
Please identify the Company’s facilities that are under
consideration for potential consolidation, and state what
products each facility makes. Please also state whether the
facilities are represented or unrepresented for collective
bargaining purposes, and provide the wages and benefits
applicable to each facility. Please advise me now and in
the future in the event of any change, as to when such con-
solidation would be implemented.

Respondent replied by letter dated May 27. That letter stated
that internal consideration of the consolidation began in 1998
and was ongoing. Respondent enclosed certain sections of an
Arthur Andersen study presented in November 1998, a 1999
business plan presentation, a site consolidation report, and the
minutes of a December 18, 1998 meeting of the board of direc-
tors. The information provided was extensive—it was several
inches thick. The letter indicated that all of Respondent’s
plants were subject to consolidation consideration and that the
applicator division was the only represented facility. Wage and
benefit cost information for the several facilities was enclosed.
The letter stated that Respondent was considering a number of
consolidation options and that should a decision to consolidate
be made, the consolidation would take place as soon thereafter
as physically and economically practicable. The letter stated:
“Should such a decision include an initial consolidation of the
Applicator plant with the Plastics Plants, the company antici-
pates that . . . such could be implemented in the summer or
early autumn of this year.” The letter ended by inviting the
Union to contact Respondent if it had any other questions. By
letter dated June 25, the Union acknowledge receipt of the in-
formation and requested that it be notified immediately if a
decision was made affecting the applicator division.
Meanwhile, by June 24, Respondent had prepared a drawing
showing the exact location at the Buena facility where the
equipment from Vineland would be situated. The drawing
revealed that the equipment from Vineland would not be inte-
grated into the area occupied by the finishing department at
Buena but instead would be located in a separate area in an-
other building. Concordia admitted that by that date Respon-
dent had made a decision to relocate the unit employees and
their equipment to Buena. This drawing and the information
contained therein was never provided to the Union.
On July 1, the Union sent a letter notifying Respondent that
it desired to modify the existing contract upon its expiration. It
proposed that the parties meet and negotiate a new contract at a
mutually arranged date. On July 16, Respondent replied to the
Union’s July 1 letter. Respondent informed the Union that it
had decided to close the applicator division “subject to the bar-
gaining agreement and to consolidate the work and functions
thereof into an existing Comar facility.” The letter indicated
that Respondent anticipated that the closing and consolidation
would occur September 15 and that Respondent was willing to
bargain as required by the Act.
On July 15, Respondent’s board of directors passed a resolu-
tion that indicated that board of directors had explored the im-
plications of a possible closure of the applicator division and
COMAR, INC. 907
that it determined that the closure of the applicator division was
consistent with Respondent’s business and financial interest.
The resolution also acknowledged that the employees working
at the applicator division were represented by the Union and
Respondent had an obligation to bargain with the Union con-
cerning the impact of the consolidation on the employees. The
resolution asserted that the board of directors was aware that
the Union had been advised of Respondent’s plan to consoli-
date the applicator division. The resolution, however, did not
indicate what facility the applicator division would be consoli-
dated with.
On about July 20, Respondent held meetings with the em-
ployees on the first and second shifts at Vineland. At the first-
shift meeting Gene Concordia, then Respondent’s executive
director of operations, told the employees that their work would
be relocated to the Buena location. He assured them that, ex-
cept for a few employees, they did not have to worry about
their jobs. He said the move was going to be “like a beehive;”
they would just pick it up and move it to Buena. He also an-
nounced that the unit employees would receive lower wage
rates and benefits at the Buena location. Neher made similar
comments to the employees on the second shift.6
On July 20, the Union responded to Respondent’s July 16
letter by stating that it would be contacting Respondent to
schedule severance negotiations. The Union sent Respondent
another letter, 2 days later. This letter stated, in pertinent part:

Since [the July 20 letter], new information has come to
the Union’s attention. Specifically, it is the Union’s un-
derstanding now that the proposed action by Comar
merely involves moving the plant assets a few miles away
from the current plant and operating with the same work-
force.
This is to advise you that the Union is reserving all of
its rights, including the right to bargain a new labor agree-
ment; to take the position that the current (and/or
successor) collective bargaining agreement continues to
apply to any new location of the work; that the bargaining
unit continues at such new location; and the right, as ap-
propriate dependent on our future analysis of this matter,
to engage in decision and effects bargaining.

On July 26, Respondent prepared a letter to its customers ad-
vising them that it would be relocating equipment used to pro-
duce the products supplied to them from Vineland to Buena.
The letter continued:

First, let me assure you that nothing will change regarding the
production of your products. This is solely and only a reloca-
tion of the same manufacturing process and the same experi-
enced personnel that have historically produced and supplied
your products all along. In addition, our quality systems,
planning and inventory management systems and our com-
mitment to meeting your needs remain the same. . . . As indi-

6 These facts are based on the testimony Catherine Guildford, who
was the Union’s president and who had worked at the Vineland facility
since 1966. She impressed me as a thoroughly credible witness. Con-
cordia testified concerning the meeting that he held; his testimony is
not to the contrary. Neher did not testify.
cated, nothing beyond the physical location of this equipment
will change.

The parties agreed to meet on August 30, but on August 24
the Union canceled the meeting and it was rescheduled for
September 8. On August 30, in anticipation of the meeting, the
Union advised Respondent that:

At meetings held by the employer with bargaining unit em-
ployees, the employees were told by employer representatives
that the unit workers would move to the new plant and per-
form the same jobs; that 99% of the bargaining unit would be
offered jobs at the new location; unit employees would be
working in their own building separate from other employees
at the new location; the plant was not closing, it was just mov-
ing from one building to another.

The letter indicated that the Union wanted to discuss a succes-
sor collective-bargaining agreement. It continued: “[T]he Un-
ion wants to know the Company’s specific plans, and to work
out procedures and terms, for the relocation of the unit employ-
ees to the new location.” The letter concluded by indicating
that the Union wanted to discuss the matter of the wages and
benefits for the unit employees.
In early September, Respondent posted at the Vineland facil-
ity the job openings that would be available at the Buena facil-
ity. Although the job titles were different, the postings were for
the same work that the unit employees were performing at
Vineland.
On September 8, the Union and Respondent met. Present for
Respondent were Sobol, Concordia, and Duffy. Timothy Tut-
tle, National representative, Catherine Guilford, local union
president, and Anthony Wiessner, local vice president repre-
sented the Union. The union representatives explained that
they wanted to negotiate a new contract, discuss the details of
the move to Buena, and discuss severance matters. According
to Tuttle, Sobol said that applicator operations at Vineland were
being closed on September 15 and that the move would be
completed by September 30. Tuttle replied that this was con-
trary to the information that he had received from the members;
that the Union was told that at a meeting that Respondent held
with the unit employees. Concordia told the employees that the
operations were being moved “like a beehive” to Buena. Ac-
cording to Tuttle, Sobol denied that this was going to happen;
instead Sobol asserted that the unit employees would be inte-
grated and mixed in with the existing employees at Buena.
Tuttle testified that Sobol said that the Buena supervisors would
have responsibility for the entire finishing operation. The par-
ties then moved on to the subject of the resolution that Respon-
dent’s board of directors had passed on this matter, Tuttle asked
for the resolution but that Sobol avoided making a response.
The Union then presented a written proposal to modify the
existing contract. The proposal contemplated another 3-year
contract and called for wage and benefit increases. The Union
then read the proposal out loud. Sobol then tossed the written
proposal aside and asked what the Union wanted to do now.
Sobol suggested that the parties agree to an extension of the
existing agreement until the move was completed. That same
day the Union gave Respondent a written request for informa-
tion. The Union requested (1) the plan document, outlining the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 908
current health care plan; (2) meeting dates and times that the
Respondent met with unit employees to discuss the proposed
consolidation; and (3) specific plans detailing the Company’s
proposed consolidation as it pertained to applicator division and
its employees. Sobol said that the information had been sent to
the national union in May, but that he would again supply the
requested information.
Respondent answered the next day by providing the Union
with an outline of the current health insurance plan, specific
plans detailing Respondent’s proposed consolidation as it per-
tained to the applicator division (and indicating that this infor-
mation had previously been provided on May 27), and the in-
tended pay rates for employees at the new facility. The letter
stated that there had been one meeting with employees on the
subject, but that information concerning the specific date of the
meeting was not then available but more specifics would be
obtained. The letter ended by stating:

As I previously indicated at our meeting of September
8th, the move shall commence on or about September 15,
1999, and be completed by September 30, 1999, which is
the expiration date of the current contract. In the event the
move is extended beyond September 30th, I suggest we
extend the current Agreement until the completion of the
move. If you desire to negotiate a new Agreement for that
short period of time between the expiration of the contract
and the completion of the move, if that eventuality occurs,
I would be happy to do so. However, I think it more pru-
dent just to extend the current agreement.
Should you wish any additional information, please do
not hesitate to contact the undersigned.

The parties met again on September 14. The Union began
the meeting by presenting a copy of an unfair labor practice
charge that it had filed against Respondent. The Union asked
for the information that it had requested and it turned out that
Respondent had sent the information to Tuttle’s home address
in New York and he had not received the information because
he was staying in the local area. Sobol then did produce some
information, and the Union caucused to review it. The Union
concluded that the information did not satisfy its needs, and it
asked again for details concerning the move to Buena and how
it affected unit employees. Sobol answered that if the Union
put the request in writing he would respond. The Union then
presented a written severance proposal. Sobol responded by
suggesting that the parties agree to extend the current contract.
He clarified that it now appeared that Respondent would not
complete the move until around September 30, and he offered
to negotiate a new contract for the short period of time after
September 30 if the move was not completed by then. How-
ever, Sobol expressed his preference for merely extending the
existing agreement. Guildford asked for an explanation of why
Respondent had posted about 32 jobs. Duffy replied that Re-
spondent wanted to know how many unit employees would be
transferring to Buena. During these meetings Respondent as-
sured the Union that it was not going to train new people to do
the work of the unit employees who already had the skills to
perform the work. The Union stated that after it received the
requested information it would contact Respondent and set up
another meeting. However, the Union never sought to arrange
another meeting because it felt that further negotiations would
be fruitless.7
As requested, the Union made its request for information in
writing on September 20. The Union requested:

[T]he Company’s plan concerning the transition of the Appli-
cator business from the current facility in Vineland, New Jer-
sey to the new facility in Buena, New Jersey. As I explained
in our meeting, this request includes management’s plan with
respect to both the move itself and the operation of the new
facility(including, but not limited to, physical location within
the Buena facility, supervisory structure, staffing, hours of op-
eration, and other terms and conditions of employment.

Not waiting for the Union’s written request, on September
21, Respondent faxed the Union the following:

Pursuant to your request, albeit it was not put in writ-
ing as requesting [sic], the following information is pro-
vided:
1. Item 1, which is attached hereto and made a part
hereof as Exhibit “1” is [sic] the details of the move.
2. Work locations will be determined by classifica-
tions as we assimilate this equipment and the persons into
the plan.
3. With regard to your request regarding the hours of
work, the hours of work shall be the same as the Finishing
Department. Specifically. Those hours of work are as fol-
lows: First shift—7:00 a.m. to 3:30 p.m. Second shift—
3:30 p.m. to 12:00 midnight.
4. In response to the Union’s request for an extension
of time on job postings, the deadline period shall be ex-
tended until Thursday, September 23, 1999.
If you have any other questions or require any addi-
tional information, please do not hesitate to contact the
undersigned

The exhibit included with the letter described what equipment
was being moved from the Vineland facility to the Buena facil-
ity and when it was moving. It should be noted that Respon-
dent’s comments that the work locations would be determined
as the equipment and employees were assimilated flies in the
face of the June 24 floor plan described above.
The relocation was completed on September 27. As of that
date Respondent no longer recognized the Union and no longer
applied the contract to the former Vineland employees. The
unit employees became classified as part of the finishing de-
partment at the Buena facility. However, they were not located
within the building that housed the finishing department. In-
stead, the unit employees worked in a separate area in another
building at the Buena facility. That area had formerly housed
the seal’s department; that department was moved to the Vine-
land facility just before the Vineland unit employees were
moved to Buena. As previously indicated, this area was in a

7 The facts concerning the September 8 and 14 meetings are based
on Tuttle’s testimony, which to a great degree is not contradicted by
Sobol. To the extent that there are minor differences between their
testimony, I have determined to credit Tuttle’s testimony largely based
on his credible demeanor.
COMAR, INC. 909
different building from the rest of the finishing department at
the Buena facility. It was located about 100 yards from that
building. The seal’s area was a room separated from the rest of
the facility. In addition, Respondent took a small portion of the
injection mold area located near the seal’s room and devoted it
for use by the former Vineland employees. As of September
27, all of the unit employees worked in the seal’s room; none
were assigned to areas outside that room.
Much of the equipment that the unit employees had used at
Vineland was moved to Buena and placed in the former seal’s
area. This included 12–14 of the 16 rotary machines. The
rotary machines had constituted the core of the operations at the
Vineland facility. Prior to the relocation there had been no
rotary machines at Buena. Other equipment used by the unit
employees and relocated from the Vineland facility to the area
in or near the former seal’s room at Buena included the tum-
bler, the bellows machine, one or two cap-punching machines,
three automatic assembly machines, and one wrapping ma-
chine. The benches used for hand assembly were also moved
to Buena. The quality control function for the products pro-
duced by the equipment was performed in a separate room in
the seal’s area. One piece of equipment from Vineland was
relocated to an area outside the seal’s room. A wrapping ma-
chine was placed in the building that housed the finishing de-
partment, but unlike the wrapper placed in the seal’s room, this
wrapper was not used regularly.8 No equipment or operations
from the existing finishing department were transferred to the
seal’s room.
Of the about 50 unit employees all but 3 or 4 were offered
employment at Buena. Of those 23 accepted and 24 refused to
accept employment at Buena. Among those accepting em-
ployment were rotary machine operators, hand-assembly per-
sons, a material-handling person, a setup mechanic, and a
wrapper. These employees continued to perform the same
work on the same equipment at Buena as they had at Vineland.
Neher, who had been the plant manager at the Vineland
facility, became department head for the entire finishing depart-
ment at Buena.9 Schultz, formerly the first-shift supervisor at
Vineland, became the first-shift supervisor for the entire finish-
ing department at Buena. Keith Anderson, formerly the sec-
ond-shift supervisor at Vineland, became a second-shift super-
visor for the entire finishing department at Buena. Anderson
became the second supervisor on that shift, joining Linda Fos-
ter who already was a supervisor there.10 Gabriel, formerly
quality control supervisor at the Vineland facility, continued in
the same position at Buena. Respondent recognized that the

8 At some undisclosed time prior to the relocation, Respondent
moved six old stamping machines and a re-knobbing machine from
Vineland and placed them in the finishing department building. Use of
the re-knobbing machine was being phased out over time.
9 Neher actually assumed this responsibility at some undisclosed
time prior to September 27. At some later point Neher was reassigned
to the production scheduler position and Kurt Gellert became the de-
partment head.
10 At some undisclosed time thereafter Foster left and Anderson was
the only supervisor for the second-shift finishing department until Re-
spondent was able to hire a replacement for Foster.
rotary machine operators were able to perform their functions
without close supervision.
Effective that same day Respondent made a number of
changes to the terms and conditions of employment of the unit
employees. The unit employees who transferred to the Buena
facility were required to sign an “Employee Agreement.” In
this document the employee acknowledged the receipt of an
employee handbook and that he or she was in “at will” em-
ployment relationship, among other things. Before the transfer
the unit employees had not been required to sign such an
agreement and were not covered by the employee handbook.
As indicated, the unit employees became part of the finishing
department at the Buena facility and all employees in that de-
partment were placed on the same seniority list. Before the
consolidation the unit employees did not have an evaluation
program; after the move they were covered by the same evalua-
tion system as other finishers at the Buena location. Unit em-
ployees at Vineland had one additional holiday and one per-
sonal day that the unrepresented employees did not; after the
consolidation these extra days off were taken away to bring the
unit employees into conformance with the other employees.
Unit employees were covered by a pension plan under the un-
ion contract; after the move they were not. The unit employees
had their own 401(k) retirement plan; after the transfer the unit
employees were placed in the same 401(k) plan as the unrepre-
sented finishers. Unit employees received sick pay; unrepre-
sented employees did not. After the relocation the sick days
were taken from the unit employees and bereavement leave was
also reduced. The amount of vacation time for unit employees
increased after the transfer, and they became eligible for a bo-
nus. They were credited with the time they had accumulated
for purposes of vacation accrual. At the Buena facility after the
consolidation all employees used the same timeclock and
shared the same lunchroom. However, unit employees used the
toilet facilities located near the seal’s department; they did not
use the toilet facilities used by the finishing department em-
ployees in that building.
In sum, the former Vineland employees performed the same
work on the same machines as they had done in Vineland.
Respondent continued to assign these employees short runs for
the efficiency reasons previously indicated and these employees
continued to assemble, stamp, and wrap the same product as
before.
After the relocation, nonunit employees began to interact to
some degree with the former unit employees. For example,
whereas before there was only one material handler who
worked to supply the unit employees, after the consolidation
other material handlers who were already working at the Buena
facility assisted in bringing material to the former Vineland
employees. They brought material to a staging area near the
work location of the unit employees and then the unit material-
handler distributed the material to the unit employees. Pursuant
to an existing program, the unit employees were afforded op-
portunities to cross-train on other equipment outside the seal’s
room. After they achieved a skill level on other equipment they
were given a pay raise. As of the date of the hearing in this
case only two unit employees had completed the cross-training
program and another employee attempted but was unable to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 910
complete it due to illness. The record is clear, however, that
because of the high number of unit employees who declined to
transfer from Vineland to Buena, Respondent was short
handed—at least on the rotary machines. As a result it was
unable to allow any cross-training for those employees for a
period of several months. Four or five employees in the origi-
nal finishing department at Buena have trained to operate the
rotary machines used by the unit employees. The record is
unclear exactly when this training took place. Of these two or
three have been successful, but none are assigned to operate the
rotary machines on a regular basis.
On October 7, Respondent sent the Union a letter that stated:

It has been some time since our last meeting and since I for-
warded the information requested. Please be advised that if
you wish additional information, we will be happy to provide
it and would be willing to meet at a mutually convenient time
and place to discuss the effects of the closing.

The Union responded by letter dated October 12 that stated:

The Union has been and is desirous of bargaining over the de-
cision to relocate the Vineland work and its effects. The em-
ployer’s unremedied unfair labor practices preclude meaning-
ful bargaining at this time. Additionally, the employer’s
unlawful acts have interfered with the Union’s acting as bar-
gaining representative in an appropriate unit at the Buena lo-
cation. The employer’s unlawful actions concerning the relo-
cation and its effects on employees must be rescinded. Also,
please be advised that neither this firm nor the Union have re-
ceived all of the information and documents that were re-
quested from Comar, Inc. In particular, we still have not been
provided with certain information concerning Comar’s plans
for the facility in Buena, New Jersey. As Ken Wagner stated
during the meeting on September 14, 1999, and reiterated in
his September 20, 1999 letter, that information should in-
clude, but not be limited to, Comar’s specific plans regarding
the placement of former Vineland employees within the
Buena facility. In addition, the Union has requested a copy of
a so-called “integration” resolution, allegedly entered into on
July 15, 1999. In behalf of the Union, I renew our requests
for the foregoing information, which is relevant and necessary
for the Union to bargain in an informed manner over the vari-
ous issues raised by this relocation.
III. ANALYSIS
A. Appropriateness of the Unit
The first question to be addressed is whether the recognized
unit at Vineland remained appropriate for bargaining after the
relocation. Respondent argues that the unit employees were
merged, or more accurately accreted, into the existing finishing
department at Buena and therefore no longer constituted a sepa-
rate unit. The Union and the General Counsel argue that the
unit remained appropriate even after the relocation.
The Board follows a restrictive policy in determining
whether an accretion has occurred because the accreted em-
ployees are not able to decide for themselves whether or not to
be represented by a labor organization and the Board seeks to
insure that the employees’ rights in this regard are not improp-
erly foreclosed. Towne Ford Sales, 270 NLRB 311 (1984),
affd. sub nom. Machinist District Lodge 190 v. NLRB, 759 F.2d
1477 (9th Cir. 1985). The Board will find an accretion “only
when the additional employees have little or no separate group
identity and thus cannot be considered to be a separate appro-
priate unit and when the additional employees share an over-
whelming community of interest with the preexisting unit to
which they are accreted [footnotes omitted].” Safeway Stores,
256 NLRB 918 (1981). The fact that a combined unit of the
existing employees and those sought to be added by accretion
may constitute an appropriate unit does not compel an accretion
so long as the employees sought to be accreted themselves
constitute an appropriate unit. Melbet Jewelry Co., 180 NLRB
107 (1969). In deciding whether an accretion has occurred the
Board examines factors such as functional integration, level of
management control, similarity of working conditions, bargain-
ing history, employee interchange, job skills and functions, and
physical proximity. NLRB v. Food Employers Council, Inc.,
399 F.2d 501 (9th Cir. 1968). In determining whether a unit of
employees has been accreted into another group of employees,
the nature of the operations is examined at the time of the with-
drawal of recognition unless there is a well-defined plan or
timetable for achieving fuller functional integration. Northland
Hub, Inc., 304 NLRB 665 (1991).
I have found above, that the unit employees continued to per-
form the same work on the same equipment making the same
products as they had at Vineland. They continued to perform
that work under essentially the same supervision. They per-
formed this work in a separate room in a building apart from
the other Buena finishers. The difference in skill levels be-
tween the unit employees and the Buena finishers remained
intact. No unit employees worked in the Buena finishing build-
ing; no Buena finishers regularly worked in the seal’s room.
The unit employees had a decades-long history of union repre-
sentation, and this history was deeply absorbed into the em-
ployees by virtue of the fact that many unit employees had
worked in their positions for decades. Respondent itself recog-
nized the need to maintain the separate identity of the unit em-
ployees, even after the relocation. This is shown by the fact
that Respondent told the unit employees that the operation
would be moved “like a beehive” and that it assured its custom-
ers that nothing beyond the physical location of the work. In-
deed, the distinct nature of the unit is borne out by the fact that
a year and a half after the relocation the little more had oc-
curred to merge it into the Buena finishing department. These
facts weigh heavily in support of the conclusion that the unit
employees maintained their separate identity.
Of course, as I have described above, some changes detract-
ing from the distinctiveness of the unit did occur. First, and
most significantly, the unit employees lost their distinctive
wage and benefit package and were given the same package as
the Buena finishers. The General Counsel and Union argued
that I should not give any weight to these changes in determin-
ing whether the unit remained appropriate. This is so, they
argue, because Respondent has refused to bargain about the
effects of the relocation. In cases involving the relocation of
unit work the Board has held that the obligation to bargain over
the effects of the move on unit employees includes the obliga-
COMAR, INC. 911
tion to bargain concerning the terms and conditions of em-
ployment under which employees will initially be employed at
the new location. California Footwear Co., 114 NLRB 765
(1955); enfd. in relevant part sub nom. NLRB v. Lewis, 246
F.2d 886 (9th Cir. 1957), on remand 122 NLRB 37 (1958);
Cooper Thermometer Co., 160 NLRB 1902 (1966); enfd. in
relevant part 376 F.2d 684 (2d Cir. 1967). The Board has ap-
plied this same principle to situations that involve a merger of
operations. Holly Farms Corp., 311 NLRB 273 (1993), enfd.
48 F.3d 1360 (4th Cir. 1993), affd. 517 U.S. 392 (1996). As
described more fully below, I conclude that Respondent failed
to fulfill it obligations in this regard and that consequently these
changes were unlawful. Thus, these changes can be accorded
little weight in determining whether the unit remained appro-
priate. To hold otherwise would allow Respondent to benefit
from its own unlawful conduct. Respondent attempts to distin-
guish Holly Farms on the grounds that it had a well-defined
plan or timetable established for achieving a functional integra-
tion of operations. In doing so, Respondent relies on Duffy’s
testimony that Respondent evaluated each individual unit em-
ployee for the wages to be paid them after the relocation and
implemented the new wage and benefit package upon the trans-
fer of the unit employees to the Buena facility. But this only
shows that Respondent had a plan to lower the wages and bene-
fits of the unit employees after the relocation. It does not show
that Respondent had a well-defined plan to integrate the unit
employees into existing operations. To the contrary, the facts
show that Respondent had no plans to fully integrate the unit
employees into the operations at Buena, at least to such a de-
gree so as to negate the separateness of that unit. This is borne
out by the fact that even as of the time of the trial in this, the
unit employees still worked in isolation, performing the same
work on the same equipment at they had at Vineland. Under
these circumstances, I give little weight to the fact that the unit
employees lost their separate wage and benefit package after
the relocation. Falling into this same classification of changes
that were unlawfully implemented is the merger of the seniority
lists, the required signing of the prehire agreement, and the
performance evaluations.
Other changes occurred as a result of the relocation. Upon
analysis, however, the nature of these changes only serves to
highlight the distinctiveness of the unit. For example, after the
relocation the unit employees had the opportunity to learn to
operate the equipment used by the Buena finishers and visa
versa. But few employees took advantage of this opportunity
and no employees were regularly assigned to work on the
equipment that they had learned to operate. Little daily interac-
tion occurred between the unit employees. So far as this record
shows, the only specific instance of increased interaction oc-
curred when nonunit material handlers brought material to the
seal’s staging area for the unit material handler to distribute to
the unit employees. Although all employees had the opportu-
nity to use the lunchroom, there is no evidence that the unit
employees actually did so. As pointed out above, the unit em-
ployees used different toilet facilities from the Buena finishers.
Finally, a measure of functional integration existed between
the Vineland and Buena facilities even before the consolidation.
There is no specific evidence that the degree of integration
changed in any appreciable way after the relocation.
Looking at the big picture of the events of September 27 and
thereafter, I conclude that Respondent essentially relocated the
unit intact while reducing employee wages and benefits and
ridding itself of the Union. I further conclude that the unit re-
mained appropriate after the relocation and was not accreted
into the existing finishing department. Radio Station KOMO-
AM, 324 NLRB 256 (1997); Paper Mfrs. Co., 274 NLRB 491
(1985), enfd. 786 F.2d 163 (3d Cir. 1986).
Respondent cites Kelly Business Furniture, 288 NLRB 474
(1988). I conclude that case is inapposite. In that case there
was no distinct geographic separation between the two groups
of employees, there was a greater level interaction and inter-
change between the two employee groups, and there was a
much shorter collective bargaining history for the group of
accreted employees. Importantly, none of the changes imple-
mented by the employer in the merger process in that case were
found to be unlawful. All these factors serve to distinguish
Kelly Business Furniture from the instant case. For similar
reasons Borden Steel Rolling Mills, Inc., 204 NLRB 814
(1973), also cited by Respondent, is inapposite.
As set forth above, the unit has been described in terms of
the location of the employees in Buena. That description no
longer conforms to the reality stemming from the relocation. I
conclude that until the parties themselves agree to modify the
unit description it is appropriate to describe the unit as:

All hourly paid production workers who are performing the
work that was formerly done as part of the Applicator Divi-
sion of Comar, Inc. at its facility then located in Vineland,
New Jersey, except plant executives, salesmen, office em-
ployees, janitors, watchmen and foremen, as excluded by the
provisions of the Labor Management Relations Act of 1947
as amended.
B. Refusal to Recognize the Union and Related Issues
The General Counsel alleges that Respondent unlawfully
failed to recognize the Union as the collective-bargaining rep-
resentative for the unit employees at the Buena facility. When
a unit of employees with a collective-bargaining representative
is relocated the Board will require the employer to continue to
recognize the union and apply an existing collective-bargaining
agreement if the operations at the new location are substantially
similar to those at the old location and if at least 40 percent of
the unit employees at the new location came from the old loca-
tion. Westwood Import Co., 251 NLRB 1213 (1980); Harte &
Co., 278 NLRB 947 (1986). I have already concluded that the
unit remained intact, and all of the employees working in the
unit at Buena came from the Vineland location. Thus, the Gen-
eral Counsel has met the Westwood and Harte requirements.
The facts also show that Respondent consistently failed to rec-
ognize that the Union as the collective-bargaining representa-
tive for the relocated unit employees. It follows that Respon-
dent violated Section 8(a)(5) and (1) by failing to recognize the
Union as the collective-bargaining representative for the unit
employees at Buena.
The General Counsel alleges that Respondent unlawfully al-
tered the terms and conditions of the unit employees. The evi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 912
dence also shows that effective September 27, Respondent
made a number of changes in the wages, benefits, and other
conditions of employment of the unit employees at Buena.
Some of the changes dealt with matters covered by the existing
collective-bargaining agreement. As to those matters, the Un-
ion’s consent was required before the changes could be effectu-
ated. Harte & Co., supra. Other changes were in conditions of
employment not covered by the contract. As to those changes,
Respondent was required to first give the Union notice of and a
chance to bargain concerning the proposed changes. However,
Respondent was refusing to recognize the Union as the collec-
tive-bargaining representative of the unit employees despite the
fact that the unit would remain intact after the relocation. Re-
spondent’s refusal to recognize the Union is shown by the fact
that as early July 20 Respondent had met with the unit employ-
ees and announced the new terms and conditions of employ-
ment at the Buena facility; this was done without prior notice to
the Union, who was then faced with a fait accompli. In both
situations Respondent failed to fulfill its obligations. Respon-
dent therefore violated Section 8(a)(5) and (1) by unilaterally
changing the wages, benefits, and other terms and conditions of
employment of the unit employees at Buena.
The General Counsel also alleges that Respondent unlaw-
fully failed to bargain for a new collective-bargaining agree-
ment. In that regard the facts are that the existing contract was
set to expire on September 30. During the meetings with the
Union in September, Respondent took the position that it was
willing to negotiate a short-term contract that would cover the
unit employees while they continued to work at Vineland.
Respondent refused to bargain for a contract that would cover
the unit employees after they were relocated to Buena. Because
I have concluded that Respondent was required to recognize the
Union as the collective-bargaining representative for the unit
employees at Buena, it follows that Respondent violated Sec-
tion 8(a)(5) and (1) by refusing to bargain for a collective-
bargaining agreement covering those employees.
Respondent argues that the recognition clause, set forth
above, restricts the unit to one geographic area, citing NLRB v.
Waymouth Farms, Inc., 172 F.3d 598 (8th Cir. 1999). I dis-
agree. The first sentence in the recognition clause does no
more than describe the unit. The second sentence limits the
application of the contract to the employees at the applicator
division and no other employees. It contains no geographic
limitations. I have concluded above that the unit has remained
intact and the applicator division has merely been relocated.
Under these circumstances I conclude that the recognition
clause is no defense to the violations of the Act described
above.
C. Termination of Employees
The General Counsel alleges that Respondent unlawfully ef-
fectively discharged 24 named employees.11 These were the

11 Barbara Brett, Gregory Campbell, Theresa Capaldi, Judith Carney,
Shelley Carney, Nancy Fairman, Vessi Garoff, John Gray, Catherine
Guilford, Michele Guilford, Sheila Heck, Robert Joslin, Latanya Mack,
Gail Paulaitis, Ella Percev, Linda Pierce, Helena Pollack, Ingrid Regal-
buto, Rhonda Rio, James Smart, Sandra Thurston, June Walko, Alice
Weddington, and Anthony Wiessner.
unit employees at Vineland who declined to relocate to Buena
after Respondent announced that they employees would have to
accept lower wages and benefits in order to work there. I have
already concluded that Respondent’s action in imposing the
lower wage and benefits was unlawful. Under these circum-
stances the Board recognizes the right of employees to insist on
continuing to receive the wages and benefits that resulted from
the collective-bargaining process and that were unlawfully
withdrawn. Holly Farms Corp., supra, 311 NLRB at 278–279.
By effectively terminating these employees,12 Respondent vio-
lated Section 8(a)(5) and (1).
D. Refusal to Provide Information
The General Counsel alleges that Respondent unlawfully re-
fused to provide with information that it had requested. At the
hearing the General Counsel contended that the information
that Respondent failed to provide to the Union consisted of the
location of the placement of the Vineland machinery in the
Buena facility, the identities of the employees working on those
machines, a complete listing of the benefits received by those
employees, and the supervisory structure at the Buena facility.
An employer is obligated to provide a union with information
that the union requested and that is relevant and necessary for
the union to fulfill its role as the collective-bargaining represen-
tative of the unit employees. NLRB v. Acme Industrial Co., 385
U.S. 432 (1967). This obligation covers information that is
relevant to bargaining over the effects of a relocation of unit
work. Sea-Jet Trucking Corp., 327 NLRB 540 (1999). It also
covers information needed by a union to independently verify
and employer’s claim that a recognized unit no longer exists.
Metro Foods, 289 NLRB 1107, 1118 (1988).
The first item of information concerns the location of the
equipment relocated to Buena and the identification of the em-
ployees who would be operating that equipment. The Union
had requested this information several times, most clearly in its
September 20 letter. Respondent had a floor plan, previously
described, that sets forth the precise location at the Buena facil-
ity where the equipment used by the unit employees would be
located. Respondent had this information by June 24, but it
failed to provide it to the Union. Respondent also knew which
employees were being transferred and the equipment they
would be working on, but it failed to disclose this information
to the Union. This information is palpably relevant to the Un-
ion’s attempt to bargain with Respondent concerning the effects
of the relocation and to verify whether the recognized unit no
longer existed. Not only did Respondent fail to provide the
Union with this information, it actively misled the Union on
this matter at the bargaining table by asserting that the unit
employees would be assimilated into the Buena facility.13 Re-
12 The record does not show which, if any, of these employees would
not have accepted the transfer to Buena for reasons unrelated to the
unlawful changes in their terms and conditions of employment. How-
ever, the Board allows this matter to be addressed in the compliance
stage of this proceeding. Cooper Thermometer, supra at 1917.
13 In its brief, the Union asserts that Respondent’s conduct in mis-
leading it independently violates Sec. 8(a)(5). However, this matter
was not alleged in the complaint and the General Counsel did not move
to amend the complaint during the hearing to include this allegation.
COMAR, INC. 913
spondent violated Section 8(a)(5) and (1) by failing to provide
the Union with information concerning the location where the
unit employees and the equipment used by those employees
would be located at the Buena facility and by failing to identify
which employees were assigned to operate that equipment.
The General Counsel also contends that Respondent unlaw-
fully failed to provide the Union with the names of the supervi-
sors who would be overseeing the work performed by the unit
employees at the Buena facility. I find merit to this contention.
The Union specifically requested this information in the Sep-
tember 20 letter. This information too is obviously relevant to
the Union’s need to bargain effectively for and otherwise repre-
sent the unit employees. Respondent told the Union only that
the Buena supervisors would be supervising the unit employ-
ees; it failed to inform the Union that the Vineland supervisors
would also be supervising the unit employees at Buena. Re-
spondent violated Section 8(a)(5) and (1) by failing to provide
this information.
Concerning the allegation that Respondent failed to provide
the Union with a description of the terms and conditions of
employment of the unit employees at Buena, the General Coun-
sel argues that Respondent provided no information beyond
proposed wages, shift hours, and health benefits. I find merit to
this contention too. The Union requested this information in
the September 20 letter and its relevance is beyond challenge.
Respondent’s response was inadequate. It failed, for example,
to provide the details set forth in the employee handbook that it
applied to the unit employees. Respondent failed to notify the
Union of the forms it required the unit employees to sign, forms
that described an “at will” employment relationship. By failing
to fully disclose the terms and conditions of employment of the
unit employees at Buena, Respondent violated Section 8(a)(5)
and (1).14
E. Refusal to Bargain Concerning the Effects of
the Relocation
The General Counsel alleges that Respondent unlawfully re-
fused to bargain concerning the effects the relocation and
merger had on unit employees. The facts show that Respondent
did offer to bargain over the effects of the relocation and to that
end the parties met and discussed the matter. The Union made
a proposal and Respondent ostensibly considered the proposal.
But I have also concluded that Respondent unlawfully failed to
provide the Union with certain requested information. The
effect of the failure to provide this information was exacerbated
by the fact that Respondent at the same time was giving the
Union misleading information at the bargaining table concern-
ing the nature of the relocation. I have already described above
how Respondent’s obligation to bargain concerning the effects

Under these circumstances I decline the invitation to find that this con-
duct violated the Act.
14 The General Counsel does not contend in his brief that Respon-
dent otherwise unlawfully failed to provide information to the Union.
While the Union claims that other information was unlawfully with-
held, it is the General Counsel who brings the complaint and sets forth
the perameters of the lawsuit. In the absence of clear notice to Respon-
dent that those matters were to be litigated, I conclude that it would be
unfair to now resolve those matters.
of the relocation included the duty to bargain concerning the
terms and conditions of employment under which the unit em-
ployees would be relocated. Respondent failed to fulfill that
obligation when it unilaterally determined the working condi-
tions of the unit employees at the Buena facility. Under these
circumstances good-faith bargaining over the effects of the
relocation was precluded by Respondent’s unlawful conduct
and the Union was justified in suspending such bargaining until
Respondent’s unlawful conduct was rectified. By failing to
bargain in good faith over the effects of the relocation, Respon-
dent violated Section 8(a)(5) and (1).
CONCLUSIONS OF LAW
By the conduct described below Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
1. Failing and refusing to recognize the Union as the collec-
tive-bargaining representative for the employees in the follow-
ing unit:

All hourly paid production workers who are performing the
work that was formerly done as part of the Applicator Divi-
sion of Comar, Inc. at its facility then located in Vineland,
New Jersey, except plant executives, salesmen, office em-
ployees, janitors, watchmen and foremen, as excluded by the
provisions of the Labor Management Relations Act of 1947
as amended.

2. Changing the terms and conditions of employment cov-
ered in the collective-bargaining agreement for unit employees
without first obtaining the Union’s consent.
3. Unilaterally changing other terms and conditions of em-
ployment of unit employees without first giving the Union no-
tice and an opportunity to bargain over those changes.
4. Refusing to bargain for a collective-bargaining agreement
covering the unit employees at the Buena facility.
5. Conditioning continued employment on the acceptance of
unlawfully implemented changes in terms and conditions of
employment, thereby discharging the following employees:

Barbara Brett, Gregory Campbell, Theresa Capaldi, Judith
Carney, Shelley Carney, Nancy Fairman, Vessi Garoff, John
Gray, Catherine Guilford, Michele Guilford, Sheila Heck,
Robert Joslin, Latanya Mack, Gail Paulaitis, Ella Percev,
Linda Pierce, Helena Pollack, Ingrid Regalbuto, Rhonda Rio,
James Smart, Sandra Thurston, June Walko, Alice Wedding-
ton, and Anthony Wiessner.

6. Failing to provide the Union with requested information
that is relevant and necessary for the Union to fulfill its role as
the collective-bargaining representative of the unit employees.
7. Failing to bargain in good faith with the Union concern-
ing the effects on unit employees of the relocation of unit work
to the Buena facility.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Respondent having unlawfully
changed the terms and conditions of employment of the unit
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 914
employees, it must, upon request by the Union, rescind those
changes. It must also make the unit employees whole for any
loss of earnings or benefits they suffered as a result of this
unlawful conduct, including providing contractual benefits and
making contractually required payments or contributions; this
also includes any additional amounts applicable to such delin-
quent payments as determined pursuant to Merryweather Opti-
cal Co., 240 NLRB 1213 (1979). In addition, Respondent must
reimburse the unit employees for any expenses ensuing from its
failure to make any required payments or contributions as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), affd. 661 F.2d 940 (9th Cir. 1981), such amounts to be
computed in the manner set forth in Ogle Protection Service,
183 NLRB 623 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
with interest as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
Respondent having unlawfully discharged employees, it
must offer them reinstatement15 and make them whole for any
loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, supra.
Respondent having unlawfully failed to provide the Union
with certain information, it must supply the Union with that
information.
Respondent having failed to bargain in good faith with the
Union concerning the effects on unit employees of the reloca-
tion of unit work to the Buena facility, it shall be ordered to do
so if requested by the Union. The General Counsel and the
Union request that Respondent be ordered to pay the unit em-
ployees backpay in the manner set forth in Transmarine Navi-
gation Corp., 170 NLRB 389 (1968), as modified in Melody
Toyota, 325 NLRB 846 (1998). However, I conclude that a
blanket Transmarine is not appropriate in this case. As set
forth above, a number of employees accepted the offer to trans-
fer to the Buena facility; they did not lose any time off from
work and therefore are not entitled to this remedy. As to the
remaining unit employees, I have ordered Respondent to offer
them reinstatement and make them whole for the losses they
suffered. Those employees too will be fully made whole by
those remedies and any Transmarine remedy would be a wind-
fall. There remains the possibility, touched upon above, that
some unit employees would not have transferred to the Buena
facility for reasons unrelated to the unlawful conditions of em-
ployment that Respondent implemented there. These employ-
ees, if any, are entitled the Transmarine remedy. And there
may be discriminatees who will not be reinstated because there
was not a sufficient number of positions, or substantially
equivalent positions, for them at Buena. These employees too
shall be entitled to the Transmarine remedy.

15 I shall leave for resolution in the compliance stage of this proceed-
ing the issue of whether there were sufficient positions available at
Buena for all the discriminatees.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended16
ORDER
The Respondent, Comar, Inc., Buena, New Jersey, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize the Union as the collec-
tive-bargaining representative of the employees in the unit.
(b) Changing the terms and conditions of employment cov-
ered in the collective-bargaining agreement for unit employees
without first obtaining the Union’s consent.
(c) Unilaterally changing other terms and conditions of em-
ployment of unit employees without first giving the Union no-
tice and an opportunity to bargain over those changes.
(d) Refusing to bargain for a collective-bargaining agreement
covering the unit employees at the Buena facility.
(e) Conditioning continued employment on the acceptance of
unlawfully implemented changes in terms and conditions of
employment, thereby discharging employees:
(f) Failing to provide the Union with requested information
that is relevant and necessary for the Union to fulfill its role as
the collective-bargaining representative of the unit employees.
(g) Failing to bargain in good faith with the Union concern-
ing the effects on unit employees of the relocation of unit work
to the Buena facility.
(h) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, recognize and bargain with the Union as the
exclusive representative of the employees in the following ap-
propriate unit concerning terms and conditions of employment
and, if an understanding is reached, embody the understanding
in a signed agreement:

All hourly paid production workers who are performing the
work that was formerly done as part of the Applicator Divi-
sion of Comar, Inc. at its facility then located in Vineland,
New Jersey, except plant executives, salesmen, office em-
ployees, janitors, watchmen and foremen, as excluded by the
provisions of the Labor Management Relations Act of 1947
as amended.

(b) Upon request rescind the unlawful changes made in the
terms and conditions of employment of the unit employees.
(c) Make the unit employees whole for any loss of earnings
or benefits they suffered as a result of the unlawful changes
made in the terms and conditions of their employment, as pro-
vided in the remedy section of this decision.
(d) Within 14 days from the date of this Order, offer Barbara
Brett, Gregory Campbell, Theresa Capaldi, Judith Carney,
Shelley Carney, Nancy Fairman, Vessi Garoff, John Gray,
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
COMAR, INC. 915
Catherine Guilford, Michele Guilford, Sheila Heck, Robert
Joslin, Latanya Mack, Gail Paulaitis, Ella Percev, Linda Pierce,
Helena Pollack, Ingrid Regalbuto, Rhonda Rio, James Smart,
Sandra Thurston, June Walko, Alice Weddington, and Anthony
Wiessner full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed.
(e) Make those employees whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of the deci-
sion.
(f) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges, and within 3
days thereafter notify the employees in writing that this has
been done and that the discharges will not be used against them
in any way.
(h) Provide the Union with the information that it requested
but that was unlawfully withheld.
(i) Upon request, bargain in good faith with the Union con-
cerning the effects on unit employees of the relocation of unit
work to the Buena facility.
(j) Pay to those unit employees, if any, who would not have
accepted the transfer to Buena for reasons unrelated to the
unlawful conditions of employment that Respondent imple-
mented there and those unit employees, if any, who will not be
reinstatement because there was not a sufficient number of
positions, or substantially equivalent positions, for them, their
normal wages when last in Respondent’s employ from 5 days
after the date of this Decision and Order until the occurrence of
the earliest of the following conditions: (1) the date Respondent
bargains to agreement with the Union on those subjects pertain-
ing to the effects of the relocation of unit work to Buena, New
Jersey, on unit employees; (2) a bona fide impasse in bargain-
ing; (3) the Union’s failure to request bargaining within 5 busi-
ness days after receipt of this Decision and Order, or to com-
mence negotiations within 5 business days after receipt of Re-
spondent’s notice of its desire to bargain with the Union; and
(4) the Union’s subsequent failure to bargain in good faith, but
in no event shall the sum paid to these employees exceed the
amount they would have earned as wages from the date on
which Respondent transferred the unit work to Buena, New
Jersey, to the time they secured equivalent employment else-
where, or the date on which Respondent shall have offered to
bargain in good faith, whichever occurs sooner; provided, how-
ever, that in no event shall this sum be less that what the em-
ployees would have been earned for a 2-week period at the rate
of their normal wages when last in Respondent’s employ.
Backpay shall be based on earnings which these employees
would normally have received during the applicable period, less
any net interim earnings, and shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
(k) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order.
(l) Within 14 days after service by the Region, post at its fa-
cilities in Buena, New Jersey, copies of the attached notice
marked “Appendix.”17 Copies of the notice, on forms provided
by the Regional Director for Region 4 after being signed by the
Respondent's authorized representative, shall be posted by the
Respondent immediately upon receipt 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 in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since September 10, 2001.
(m) 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.

17 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”