Dorsey Trailers, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1999

327 N.L.R.B. 835 (N.L.R.B. 1999)

DORSEY TRAILERS, INC. 835
Dorsey Trailers, Inc. Northumberland, PA Plant and
United Auto Workers International Union and
its Local 1868, International Union, AFL–CIO,
CLC. Cases 4–CA–23996, 4–CA–24049, 4–CA–
24356, and 4–CA–24423
March 12, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On December 1, 1997, Administrative Law Judge
George Alemán issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel and the Charging Party each filed a
brief in answer to the Respondent’s exceptions, the Re-
spondent filed responding briefs to each answering brief,
and the General Counsel filed a brief in support of the
judge’s decision. In addition, the Respondent filed a
motion for oral argument and a motion to reopen the re-
cord. The General Counsel opposed the motion to re-
open the record and the Respondent filed a response to
that opposition.
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, findings1 and conclusions and
to adopt his recommended Order.2

1 In his discussion of the facts at sec. II(B), fn. 7 of his decision, the
judge cites an earlier decision involving the same Respondent, Dorsey
Trailers, Inc., 321 NLRB 616 (1996). The Board there found that the
Respondent had unlawfully failed to bargain over its subcontracting of
the production of dump trailers. Following the issuance of the judge’s
decision in this case, the court of appeals declined to enforce the por-
tion of the Board’s earlier decision requiring the Respondent to bargain
over its decision to subcontract. Dorsey Trailers, Inc. v. NLRB, 134
F.3d 125 (3d Cir. 1998). We find that the court’s ruling in that case has
no impact upon the resolution of the issues in this proceeding. In
adopting the judge’s decision, we find it unnecessary to rely on our
decision in that earlier case.
2 We deny both the Respondent’s motion for oral argument and its
motion to reopen the record to admit the transcript and other materials
from a July 1997 district court proceeding held under Sec. 10(j) of the
Act.
In denying the motion to reopen, we note initially that any rulings in
a 10(j) proceeding are not binding on the Board in the unfair labor
practice proceeding. Coronet Foods v. NLRB, 981 F.2d 1284, 1288
(D.C. Cir. 1993), and cases there cited. In any event, we note that the
district court’s August 1997 order denying the General Counsel’s peti-
tion for an injunction was reviewed by the U.S. Court of Appeals for
the Third Circuit and remanded with instructions to the district court
directing it to issue an injunction. Hirsch v. Dorsey Trailers, Inc., 147
F.3d 243 (3d Cir. 1998). Pursuant to that remand, on November 13,
1998, the district court issued an injunction prohibiting the Respondent
from selling, leasing, or otherwise alienating its Northumberland facil-
ity, effective through March 13, 1999.
Regarding the Respondent’s argument that its motion to reopen
should be granted in order to receive evidence from the district court
proceeding of the Respondent’s financial condition and the likely im-
pact of an order to restore the operations of its Northumberland facility,
we note the following. The Respondent was on notice that the General
Counsel was seeking a restoration order in this unfair labor practice
proceeding. Since the Respondent bore the burden of showing that
such an order would be “unduly burdensome” (Lear Siegler, Inc., 295
NLRB 857, 861 (1989)), it had the opportunity and the responsibility
for adducing any relevant evidence on that point that was available to it
at the time of the Board hearing. As for any such evidence that became
available only after the hearing before the administrative law judge
closed, the Respondent will have the opportunity to introduce it at the
compliance stage. Id. at 861–862.
The judge found, inter alia, that the Respondent’s fail-
ure to bargain over unilateral changes in its attendance
policy violated its bargaining obligation to the Union. In
its exceptions, the Respondent asserts that the judge im-
properly denied it the opportunity to introduce into evi-
dence two documents—an arbitration decision and a col-
lective-bargaining agreement—that would have provided
a defense to its actions. The Respondent contends that
the excluded evidence would have established that it had
unilaterally implemented a similar change in attendance
policy at a different unionized facility (located in Elba,
Alabama) which an arbitrator found to have been author-
ized and privileged by both past practice and the terms of
a management-rights clause in the operative collective-
bargaining agreement. The Respondent asserts that the
wording of the management-rights clause in this case is
similar to that at issue in the arbitration decision and
should, therefore, be found to be broad enough to en-
compass the changes in the attendance policy. The Re-
spondent also contends that the judge improperly dis-
credited the testimony of Plant Manager Kenneth Sawyer
concerning the similarity between the language in the
management-rights clause in the excluded collective-
bargaining agreement and the one involved in this case.
We find no merit in the Respondent’s exception. First,
we find that the judge properly excluded the arbitrator’s
decision from this record as lacking in relevance and
probative value. The excluded arbitration involved
events at a different facility, which had its own local
management and separately established practices and
procedures. It involved an employee unit represented by
a different union from the one involved here, which op-
erated under the terms of a different collective-
bargaining agreement. The judge was therefore correct
in refusing to admit the arbitrator’s decision into the re-
cord.
Second, the record discloses that, while the Respon-
dent stated its intent to introduce into the record the Elba
bargaining agreement containing the purportedly similar
management-rights clause, it never proffered that docu-
ment during the course of the proceeding. Thus, it was
not the judge that kept that document out of the record.
Instead, the Respondent merely offered Sawyer’s testi-
mony concerning the similarity of the two contracts’
management-rights clauses. In these circumstances,
where the Respondent has failed to provide the actual
language of the management-rights clause for compari-
son, we find that the judge could reasonably both infer
that the actual text would not have supported the Re-

327 NLRB No. 155
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 836
spondent’s position and discredit testimony to the con-
trary. Accordingly, we find no merit in the Respondent’s
exception to the judge’s ruling on the evidence.
We also find the Respondent’s reliance upon United
Technologies Corp.3 in support of its contentions regard-
ing the scope of the management-rights clause to be mis-
placed. The question in that case was the extent of the
company’s power unilaterally to alter its progressive
disciplinary procedure for absenteeism. The “Manage-
ment Functions Clause” at issue provided that United
Technologies had “the sole right and responsibility to
direct the operations of the company . . . including the
right to make and apply rules and regulations for pro-
duction, discipline, efficiency, and safety” (emphasis
added). It further provided that the company had the
right “to discharge or otherwise discipline any employee
for just cause.”4 The Board and the reviewing court held
that the plain language of the clause gave the company
the explicit, unilateral right to make disciplinary rules
and to impose discipline pursuant to them.
By contrast, the management-rights clause in this case
states only that the Respondent had the “exclusive right
to manage the plant and its business, and to exercise the
customary functions of management” . . . [and] . . . “to
make such fair and reasonable rules, not in conflict with
this Agreement, as it may from time to time deem best
for the purposes of maintaining order, safety, and/or ef-
fective operation of Company plants, and after advance
notice thereof to the Union and the employees, to require
nondiscriminatory compliance therewith.” Unlike the
clause in United Technologies, which granted explicit
authority to make disciplinary rules, the reference to
rules in this clause is couched in general terms and does
not clearly cover the discipline-linked changes in the
attendance policy that the Respondent made here. It is
too vague to constitute a union waiver of its statutory
right to bargain over changes of the kind made here in
the attendance policy. Thus, the decision in United
Technologies provides no support for the Respondent’s
position.5

3 287 NLRB 198 (1987), enfd. 884 F.2d 1569 (2d Cir. 1989).
4 287 NLRB at 205–206.
5 In his analysis of this issue, the judge cites Elliott Turbomachinery
Co., 320 NLRB 141 (1995), for the Board’s “clear and unmistakable
language” standard for finding contractual waiver of the right to bar-
gain over terms and conditions of employment. We note that following
the issuance of the judge’s decision, on September 30, 1996, the Board
vacated its decision in Elliott Turbomachinery. While placing no reli-
ance upon that case, the Board continues to adhere to the well-
established “clear, unequivocal and unmistakable” language standard
for finding waiver and the judge’s analysis remains otherwise undis-
turbed. See Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983),
and Johnson-Bateman Co., 295 NLRB 180 (1989), both cited by the
judge, as well as Exxon Research & Engineering Co., 317 NLRB 675
(1995).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Dorsey Trailers, Inc., North-
umberland, Pennsylvania, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.

MEMBER HURTGEN, concurring and dissenting in part.
Although I join my colleagues in affirming the judge’s
conclusions of law and his analysis of most of the alle-
gations, I disagree with the judge’s rationale with respect
to the revisions of the Respondent’s attendance policy
and with respect to the closure and relocation of its
Northumberland, Pennsylvania facility.
1. Before February 1, 1995, the Respondent’s atten-
dance policy permitted employees seven absences before
facing discharge. The policy did not distinguish between
excused and unexcused absences, and did not account for
tardiness occurrences at all. The changes that the Re-
spondent made to this policy were three-fold: First, it
differentiated between excused and unexcused absences
and set the number of absences of each category that
justified an employee’s termination. The new policy was
more lax in tolerating excused absences, but more restric-
tive when applied to unexcused absences. Second, the
policy distinguished between absenteeism and tardiness,
and delineated the number of tardiness occurrences (ab-
sences and tardiness occurrences combined) that war-
ranted termination. The third component of the new pol-
icy was the elimination of a carryover feature in the Re-
spondent’s longstanding “Safety Bucks” or “Dorsey Dol-
lars” program that rewarded employees for maintaining
good attendance and safety records and made employees
eligible for prizes awarded in monthly raffles. Under the
new policy, the raffles were discontinued.
In my view, only the third component of the new pol-
icy constituted a unilateral change in violation of Section
8(a)(5).
As set forth in the management-rights clause of the
parties’ collective-bargaining agreement, “the Company
has the exclusive right to manage the plant and its busi-
ness, and to exercise the customary functions of man-
agement in all respects.” The same clause also author-
izes the Respondent to make “such fair and reasonable
rules . . . as it may from time to time deem best for the
purposes of maintaining order, safety, and/or effective
operation of the Company.”
In my view, the “contract coverage” analysis, set forth
by the D.C. Circuit in NLRB v. Postal Service, 8 F.3d
832 (1993), is the appropriate test to be applied in deter-
mining the legality of Respondent’s actions.1 Under that
analysis Respondent had the right, inter alia, to make fair
and reasonable rules for the effective operation of the
company. Clearly, a rule that deals with attendance is a
1 See Central Illinois Public Service Co., 326 NLRB 926, 935 fn. 23
(1998).
DORSEY TRAILERS, INC. 837
rule that directly concerns “the effective operation of the
company,” and the General Counsel has not alleged that
the rules promulgated here were unfair or unreasonable.
Accordingly, Respondent was privileged to implement
them.
In contrast, the Respondent’s incentive programs, in-
cluding raffles and gifts to promote attendance and safety
compliance, are terms and conditions of employment to
which the management-rights clause does not speak.
The elimination of these programs and the discontinua-
tion of the raffles and awards were unilateral changes
that violated Section 8(a)(5).
2. I agree that the Respondent violated the Act by
transferring bargaining unit work from its facility in
Northumberland, Pennsylvania, to Cartersville, Georgia,
and closing the Northumberland facility. However, I do
not pass upon the issues of whether Respondent engaged
in bad-faith bargaining on this subject, whether it pre-
sented the Union with a fait accompli, or whether the
closing and relocation were motivated by a desire to re-
taliate against employees for having gone on strike.
Rather, I simply agree with the judge that the parties did
not reach impasse on November 6, 1995, over the reloca-
tion and closure decisions. Thus, the implementation of
those decisions was unlawful under Section 8(a)(5).

Donna D. Brown, Esq., for the General Counsel.
Michael S. Mitchell and James M. Walters, Esqs. (Fisher &
Phillips), for the Respondent.
Stephen A. Yokich, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE ALEMÁN, Administrative Law Judge. Pursuant
to charges and amendments thereto filed by United Auto Work-
ers International Union and its Local 1868, AFL–CIO, CLC
(the Union) on various dates between June 30, and November
30, 1995,1 the Regional Director for Region 4 of the National
Labor Relations Board (the Board) issued an amended consoli-
dated complaint on October 31, 1996, alleging that the Respon-
dent, Dorsey Trailers, Inc., Northumberland, PA Plant, had
violated Section 8(a)(1), (3), and (5) of the National Labor
Relations Act. By answer dated November 14, 1996, the Re-
spondent admitted some and denied other allegations in the
amended consolidated complaint, and denied having committed
any unfair labor practices. A hearing on the above allegations
was held before me in Shamokin, Pennsylvania, from Novem-
ber 18–21, 1996, during which all parties were afforded full
opportunity to appear, to call and examine witnesses, to submit
oral as well as written evidence, and to argue orally on the re-
cord.
On the basis of the entire record in this proceeding, including
my observations of the demeanor of the witnesses, and after
considering briefs filed by the General Counsel, the Union,2
and the Respondent,3 I make the following

1 All dates are in 1995, unless otherwise indicated.
2 As the Union’s arguments at the hearing and in its posthearing
brief mirror those presented by the General Counsel, reference herein to
the General Counsel’s claims or contentions incorporate similar claims
FINDINGS OF FACT
I. JURISDICTION
Dorsey Trailers, Inc., a Georgia corporation, with corporate
headquarters located in Atlanta, Georgia, and the parent corpo-
ration of Respondent, is engaged in the trailer manufacturing
business. At all relevant times, it maintained two facilities, one
in Elba, Alabama, its main facility, where it manufactures dry
freight and refrigerated vans, and another in Northumberland,
Pennsylvania, the facility at issue here, where, until December
1995, it manufactured flatbed and dump trailers.4 During the
year preceding issuance of the amended consolidated com-
plaint, a representative period, the Respondent, in the course
and conduct of its business operations purchased and received
goods valued in excess of $50,000 directly from points located
outside the State of Georgia. The complaint alleges, the Re-
spondent admits, and I find, that Dorsey Trailers, Inc., North-
umberland, Pennsylvania Plant, was at all relevant times herein
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. The Respondent further ad-
mits, and I find, that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges, and the answer denies, that the Re-
spondent has violated
1. Section 8(a)(1) by5

(a) Threatening employees with plant closure and loss of
jobs if they went out on strike.
(b) Creating the impression of surveillance and threatening
an employee with unspecified reprisals.
(c) Soliciting employees to bring their grievances to supervi-
sors rather than the Union.

2. Section 8(a)(3) by

raised by the Union. Failure to explicitly mention the Union is no
indication that its arguments and claims were not duly considered.
3 References to the General Counsel, Respondent, and the Union’s
exhibits are herein identified respectively as G.C. Exh., R. Exh., and CP
Exh., followed by the exhibit number. Joint exhibits received in evi-
dence are referred to as Jt. Exh. followed by the exhibit number. Cites
to testimony contained in the transcripts of the proceedings are identi-
fied as “Tr.” followed by the page number, and reference to arguments
in the parties’ posthearing briefs are cited as G.C. Br. (General Coun-
sel’s brief), R. Br. (Respondent’s brief), or C.P. Br. (Charging Party
Union’s brief) followed the page number(s).
Following Respondent’s submission of its posttrial brief, it requested
permission to file a response to the General Counsel’s brief, which led
to a response by the General Counsel and the Union, which in turn led
to another filing by the Respondent. Having duly considered all such
motions and countermotions, I deny the Respondent’s request along
with all other requests submitted by the parties. In sum, I have consid-
ered only arguments contained in the parties’ initial briefs in rendering
my decision.
4 Flatbed trailers are used for carrying loads such as steel and build-
ing materials, while dump trailers are used to haul bulk products such
as dirt, sand, rock, and gravel (G.C. Exh. 6).
5 On brief, the General Counsel raises other issues not alleged as vio-
lative of Sec. 8(a)(1), including a claim that the Respondent solicited an
employee to withdraw from the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 838
(a) Refusing and failing to grant immediate reinstatement to
unfair labor practice strikers upon their unconditional offer to
return to work.
(b) Relocating all unit work to a facility in Cartersville,
Georgia, and closing its Northumberland facility in retaliation
for the employees having gone on strike.

3. Section 8(a)(5) by

(a) Unilaterally instituting a new attendance policy.
(b) Refusing to comply with the Union’s request for relevant
information.
(c) Failing to give the Union proper notice of and an oppor-
tunity to bargain over its decision to relocate all unit work to
Cartersville and to close its Northumberland Plant.
B. The Facts
The record reflects that since about 1987, when she executed
a leveraged buyout of Dorsey Trailers from its parent corpora-
tion, Dorsey Corporation, Marilyn Marks has been Respon-
dent’s president and chief executive office (CEO). At the time
of the buyout, Dorsey Trailers was comprised of four unionized
facilities that included the Northumberland, Pennsylvania, and
Elba, Alabama plants, and facilities located in Edgerton, Wis-
consin, and Griffin, Georgia.
The Northumberland employees have been represented by
the Union since 1967.6 At the hearing, Marks praised those
employees as a highly skilled work force, and stated that the
Northumberland facility was the best dump trailer plant in the
entire industry. She pointed out, however, that a disadvantage
of the Northumberland facility was its distance from major
freight lanes, resulting in higher freight costs for the Respon-
dent. During the early 1990s, the Respondent was not a par-
ticularly profitable operation. Its then financial difficulties led
to concessions being made by the Union during the 1992 con-
tract negotiations between the Respondent and the Union. Of
concern to the Respondent during those negotiations was the
amount of overtime being paid out and how to reduce the over-
time cost. A collective-bargaining agreement was subsequently
entered into between the parties effective from March 4, 1992,
to March 1, 1995 (Jt. Exh. 1). It appears that following those
negotiations, the Respondent’s business picked up considera-
bly, so much so that by early 1993, the Respondent, unable to
meet the increased demand, began subcontracting production of
dump trailers to Bankhead Enterprises in Atlanta, Georgia,
owned by Glenn Taylor.7

6 The Union represents “all production, maintenance and stock room
employees of Respondent at the Northumberland Plant, but excluding
office clerical employees, professional employees, salesmen, guards,
watchmen and supervisors as defined in the Act.”
7 The subcontracting arrangement between Respondent and Bank-
head, along with other issues, was the subject of a prior unfair labor
practice proceeding, wherein it was alleged that the Respondent vio-
lated Sec. 8(a)(5) and (1) by not bargaining over the decision to
subcontract, by unilaterally assigning employees to light duty outside
their normal departments, and by failing to furnish the Union with
information regarding the subcontracting and the light duty changes.
See Dorsey Trailers, Inc., 321 NLRB 616 (1996), modified in 322
NLRB 181 (1996). The Board there found, contrary to an
administrative law judge, that the decision to subcontract was a
mandatory subject of bargaining, and that Respondent’s refusal to
bargain over its subcontracting decision, and to provide information
relative thereto, violated Sec. 8(a)(5) and (1). It did, however, agree
with the judge that Respondent further violated the Act by unilaterally
assigning unit employees to light-duty work outside their normal
By the start of 1995, according to Northumberland plant
manager and admitted supervisor, Michael Gordy, the facility
had exceeded expectations in terms of production, efficiency,
and profitability. Gordy testified that while the facility needed
to grow to increase production of flatbed trailers, the Respon-
dent had already invested more than $100,000, and had an addi-
tional $160,000 earmarked for further improvements at North-
umberland, but that despite this shortcoming, profits were such
by mid-1995 that Respondent expected it to be a banner year.
According to Gordy, in 1994 Respondent received an order for
400 flatbed trailers, the largest ever in the industry, and in
1995, received another order from Builders Transport, Inc. for
500 trailers, the largest order received for that year. Production
of the order was to begin sometime in mid-July. Gordy further
testified that the location of the Northumberland facility was
advantageous to Respondent with respect to the dump trailer
market because Respondent was primarily a “northeastern re-
gional supplier of dump’s,” and that while Respondent wanted
to expand dump trailer production by building a form of dump
trailer known as “walking floor” trailers, it could not due to the
increased demand for flatbed trailers which took up much of
the facility’s production area. Gordy pointed out that building
dump trailers in Northumberland was clearly more cost effec-
tive than building them in Cartersville, Georgia because the
majority of Respondent’s dump trailer customers were located
in the Northeast, resulting in lower freight costs (Tr. 550).
As noted, the parties’ agreement was scheduled to expire on
March 1, 1995. By its terms the agreement would be automati-
cally renewed from year to year unless either party gave written
notice to terminate 60 days prior to its expiration. On Decem-
ber 7, 1994, the Union gave written notice of its intent to nego-
tiate a new contract (G.C. Exh. 19). Contract negotiations be-
gan on February 8, and ended November 6, during which em-
ployees engaged in a strike that lasted from June 26 to October
16, when employees unconditionally offered to return to work.
In December, the Respondent closed its Northumberland facil-
ity and moved its operations to Cartersville, Georgia, where it
manufactures flatbed trailers only. It is undisputed that the
relocation to Cartersville did not involve a basic change in the
nature of the Employer’s operation (R. Br. 6; G.C. Exh. 32;
C.P. Br. 16–17).
Against this backdrop, I now address the parties’ conduct
and the events of 1995 which gave rise to this proceeding.
1. The prenegotiation conduct
a. The Union’s information request
Union International Representative Robert McHugh testified
that in September 1994, during a meeting to discuss attendance-
related grievances, Gordy complained that the Company’s at-
tendance policy was not working and that he planned to change
the method of disciplining employees for attendance problems.
In anticipation of the purported change in attendance policy,
and to prepare for the upcoming negotiations, McHugh on De-
cember 21, 1994, requested certain information from Respon-
dent, including the following:8

light-duty work outside their normal departments or classifications, and
by refusing to furnish the Union with information relating to such uni-
lateral assignments and to its subcontracting decision. The Board’s
decision, it should be noted, issued after the negotiations had concluded
and the Northumberland facility closed.
8 The record does not make clear if the other items sought by the Un-
ion in the December 21, 1994 request were ever provided.
DORSEY TRAILERS, INC. 839

DISCIPLINE PROCESS
B. For each employee, provide the current number of “occur-
rences” that such employee has on file in the existing atten-
dance policy and the date of each employee’s last occur-
rence.9
EMPLOYMENT RECORDS
A. A listing of each location where the Company keeps
and/or maintains any employee records. [G.C. Exh. 17, pp.
8–9.]

Respondent’s vice president for human resources, Kenneth
Sawyer, testified that he and Gordy discussed the above infor-
mation request soon after Gordy received it and that “it was my
understanding they [the Union] wanted the documentation of
the occurrences and the discipline that each individual em-
ployee had” (Tr. 632). The Respondent apparently did not
provide the Union with above information, and on February 8,
the first day of negotiations, McHugh renewed his request (C.P.
Exh. 5, p. 2; G.C. Exh. 47, p. 4).
At some point after February 8, the Respondent thereafter
agreed to let the Union personally review the employee person-
nel files for such information. Sometime in March, Bower and
Union President Barry Attinger spent approximately 1 week
reviewing the employee files looking for occurrences (Tr. 332).
Bower testified that while he anticipated finding the occur-
rences issued to employees prior to 1995 in their personnel
files, except for some personal handwritten notes found in a
file, he and Attinger did not find what they were looking for.
Attinger testified, without contradiction, that following his
search of the personnel files, he questioned Respondent’s per-
sonnel administrator, Sheldon Winnick, as to whereabouts of
other attendance records where occurrences might be kept, and
Winnick responded he did not know. The above-requested
information has apparently never been furnished to the Union.
b. The attendance policy
In January 1995, Gordy announced to employees that he was
changing the Company’s attendance policy. Bower, who was
present during Gordy’s announcement, advised Attinger of the
change, and recommended they meet with Gordy to request
bargaining over the change in the attendance policy. A meeting
was thereafter held with Gordy at which time Gordy offered to
bargain with the Union over the “effects” of the change but not
about the decision itself. On February 1, the new attendance
policy was put into effect. In a February 2 letter, Attinger and
Union International Representative Robert McHugh again in-
sisted that Respondent bargain over the new attendance policy,
stating that the policy was a unilateral change in the unit em-
ployees’ wages, hours, and other terms and conditions of em-
ployment. However, in a February 7 letter, Gordy disputed that
Respondent was obligated to bargain over the new attendance
policy and disagreed that the policy had changed any of the
employees’ terms and conditions of employment. Gordy’s
letter went on to state that if the Union wished to discuss the
new policy, the upcoming contract negotiations was the time
and place to do so (G.C. Exh. 7).
A comparison of the new and old attendance policies reveals
that Gordy was not being truthful in advising the Union that the

9 “Occurrences” were issued to employees for violation of the Com-
pany’s attendance policy.
new policy did not affect the employees’ existing terms and
conditions of employment (compare, R. Exh. 1 and R. Exh. 2).
The new policy, for example, draws a distinction between ex-
cused and unexcused absences, and allows employees to accu-
mulate up to 12 excused absences before facing termination,
while limiting the number of unexcused absences to 3 before
discharge is imposed. The old policy did not distinguish be-
tween excused and unexcused absences, and allowed an em-
ployee seven occurrences before facing discharge. Thus, while
the new policy is apparently more favorable to employees in
terms of the number of excused absences that could be accumu-
lated, under the old policy employees were given greater lee-
way with respect to their unexcused absences, as they were
allowed to accumulate seven occurrences before being subject
to discharge. This contrasts sharply with the new policy’s more
restrictive “three unexcused absences and you’re out” ap-
proach. Further, while the old policy drew a distinction be-
tween absenteeism and tardiness for purposes of assigning oc-
currences (e.g. 1, day’s absence = 1 occurrence; one tardy = ½
occurrence), the new policy does not, and treats either a missed
workday or a tardiness as equal to one occurrence. The change
meant that whereas employees were previously permitted to
accumulate up to 14 tardies (e.g., 14 tardies @ ½ occurrence
each = 7 occurrences) before facing possible termination, the
new policy subjected them to discharge after only 12.
The new policy also eliminated a provision of the old policy
that allowed employees to obtain a preapproved absence from
their immediate supervisor, and eliminated as an excused ab-
sence instances where employees are required to appear in a
civil proceeding or have been subpoenaed as a witness. Fi-
nally, the new policy changed the Company’s longstanding
“Safety Bucks” or “Dorsey Dollars” financial incentive pro-
gram designed to reward employees for maintaining good at-
tendance and safety records. Thus, where in the past employ-
ees were allowed to carry over their accumulated “Safety
Bucks” from 1 year to the next, the new policy eliminated the
carryover feature, as well as a monthly drawing associated with
the program through which employees could receive prizes
such as a set of screwdrivers or wrenches, AM/FM radio, etc.
(Tr. 315–316).
2. The prestrike negotiations and other activity10
10 The Union’s rather extensive bargaining notes, covering all bar-
gaining sessions held between February 8 and November 6, were re-
ceived in evidence as G.C. Exh. 47 after being duly authenticated by
union notetaker Purcell, and consist of an actual copy of Purcell’s
handwritten notes. The “official” copy of Respondent’s bargaining
notes was also received into evidence as C.P. Exh. 5. The Respondent’s
notes, consisting of 55 typewritten pages, apparently were taken in
handwritten form and then put in typewritten form by Winnick. The
Respondent’s notes are not as detailed or as thorough as the Union’s
notes, and do not contain the notes of the last session between the par-
ties held November 6. Unlike Purcell, Winnick did not testify and
consequently did not authenticate the Company’s notes or explain the
absence of the November 6 notes. The Company’s notes were instead
identified by Gordy, with Mitchell’s assistance. Mitchell, who only
attended the last four meetings, nevertheless proffered that Winnick
took the notes in longhand and subsequently put them in typewritten
form, and that the notes constituted Respondent’s “reasonably accurate
attempt to portray what was going on” during bargaining (Tr. 560–
561). As between the Respondent’s typewritten notes and the Union’s
more detailed handwritten notes, I find the latter to be a more trustwor-
thy account of what transpired during negotiations, and where any
differences exist between the two, I have accepted the Union’s notes
contained in G.C. Exh. 47 as the truer and more reliable version.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 840
Actual negotiations for a new contract, as noted, got under
way on February 8. The Respondent’s negotiating team con-
sisted of Vice President for Human Resources and Chief
Spokesperson Kenneth Sawyer, Gordy, and Winnick. Repre-
senting the Union were McHugh as chief spokesperson, At-
tinger, Bower, recording secretary and union notetaker, John
Purcell, and employee representatives Teresa Goguts, Ralph
Kerstetter, Loreen Artley, Bob Hummel, and Mike Carter.
The February 8 session began with a general discussion by
Respondent of its improved financial picture, and the Union
responding that this should result in a better economic package
for employees. The parties agreed to discuss noneconomic
issues first, and the Respondent made it clear that mandatory
overtime for employees and subcontracting rights were its key
issues. The record, and in particular the parties’ bargaining
notes, reveals that during the first bargaining sessions the par-
ties reached quick agreement on such issues as a recognition
clause; dues checkoff; union shop committee provision; an
indemnification/hold harmless provision; proportional repre-
sentation provision (art. 2); seniority (art. 5); “Lost Time and
Incomplete Day’s Work” provision; safety and health; and a

The Respondent also produced another set of bargaining notes pur-
portedly of the last four meetings (October 13, 19, 26 and November 6)
which it claims were taken by Respondent’s vice president of admini-
stration, Paul Morrow (the “Morrow” notes). As with its other notes,
the Respondent did not call Morrow to authenticate this other set of
notes. The Respondent instead relied on Mitchell’s representation that
Morrow was the author of the notes, that they were initially taken in
handwritten form and then recorded on audiotape, and that Morrow
then put them in the typewritten form in which they were offered into
evidence. While I received the “Morrow” notes into evidence without
objection from the parties (see R. Exh. 28), I did so with much skepti-
cism as to their reliability and authenticity. Thus, despite Mitchell’s
representation that these notes were taken personally by Morrow him-
self in handwritten form, the notes of the November 6 meeting contain
an account of an alleged off-the-record discussion between Mitchell
and McHugh that was not recorded by Morrow at the meeting. Rather,
the notes suggest that the account of the Mitchell-McHugh discussion
was purportedly prepared on audiotape by Mitchell on his to the airport
at some point in time after the meeting and allegedly was his recollec-
tion of what was discussed between the two. Thus, Mitchell was being
less than candid in asserting that these were “the notes Mr. Morrow
took of these four meetings,” for clearly they were not all taken by
Morrow (Tr. 645). While I was at first blush inclined to view
Mitchell’s above assertion as an innocent misrepresentation, his admis-
sion at the hearing to having twice reviewed the notes, e.g., when they
were initially made and just prior to the hearing, unquestionably estab-
lishes his familiarity with the contents of R. Exh. 28, and persuades me
that his misrepresentation was knowingly made. While an exchange
between Mitchell and McHugh did occur (Tr. 218), I place no credence
on the account of that exchange contained in the “Morrow” notes (R.
Exh. 28, pp. 21–22) and find them to be purely self-serving. Interest-
ingly enough, Morrow, the purported author of the R. Exh. 28, did
record other off-the-record discussions. Yet, no explanation was of-
fered by Respondent as to why he would not have recorded this particu-
lar exchange between Mitchell and McHugh. Mitchell himself makes
no reference in his testimony to this off-the-record discussion. For
these reasons, and the fact that the “Morrow” notes contain self-serving
depictions of McHugh’s demeanor as being “confused,” as well as
some self-serving, gratuitous parenthetical remarks added by the pre-
parer of the notes, I question the reliability of the “Morrow” notes and
have given it little weight in my findings here. To the extent R. Exh. 28
conflicts with the Union’s notes of the last four bargaining sessions
contained in G.C. Exh. 47, the latter is deemed controlling.
leave of absence provision (G.C. Exhs. 24, 25).11 The parties,
however, had difficulty agreeing on such issues as extension of
the probationary period for new employees (the Respondent
sought to extend the period from 60 to 90 days), modification
of the grievance arbitration procedure, the scope of a “discipli-
nary procedures” provision, work assignment/job bidding lan-
guage, as well as the mandatory overtime and subcontracting
issues.
The bargaining notes reflect that at the February 23 meeting,
Sawyer told the Union that the need for mandatory overtime
remained a critical issue for the Company, pointing out that he
had been specifically instructed by Marks that mandatory over-
time was a must, and that the Company was willing to take on a
strike to achieve this goal. Sawyer made it clear that the Com-
pany was prepared for a work stoppage (C.P. Exh. 5, p. 13). In
fact, Sawyer related to the Union during the course of negotia-
tions that Marks had stated she would shut the plant down if
agreement could not be reached on subcontracting and manda-
tory overtime (Tr. 17)..12
At the February 24 meeting, the Union proposed elimination
of the management-rights clause, claiming that the Respondent
always relied on that provision in disputes between the parties
to support unilateral action and avoid its bargaining obligation.
McHugh also asked for information on Respondent’s subcon-
tracting arrangement with Bankhead Enterprises in Georgia
which, as noted, was the subject of a prior unfair labor practice
proceeding (see fn. 7, supra), stating the Union needed the in-
formation to bargain intelligently over the subcontracting lan-
guage being sought by the Company. Gordy, however, re-
11 However, despite having agreed to dues-checkoff language, on
June 8, the Respondent notified the Union it would no longer check off
union dues after the next pay period because it was legally prohibited
from doing so in the absence of an agreement. The Union responded
by letter dated June 12, that dues checkoff was a term and condition of
employment that Respondent was obligated to continue, and that it saw
no legal impediment to Respondent’s obligation to continue doing so,
and noted that employees had ratified all interim agreements reached by
the parties during the negotiations, including the agreement on the
dues-checkoff provision.
12 Questioned at the hearing as to what he may have said at this
meeting, Sawyer became evasive. Asked if he had ever told the Union
that Marks had made such a comment, Sawyer stated only that the
Union had been advised these two issues were “crucial and very impor-
tant in the long-term future of the Northumberland facility.” Pressed by
the General Counsel to explain if this meant he did make the comment
to the Union, Sawyer responded, “I don’t know that I used the word
‘shut the plant down;’ We told them it was crucial for the long-term
existence of the plant’’ (Tr. 18). Despite hedging his answer, Respon-
dent’s own bargaining notes reflect that during the February 24, bar-
gaining session, Sawyer remarked, “[W]e could be negotiating the
effects of a plant closing,” further stated that “Marks has to make a
decision to keep Northumberland opened or move southeast to another
plant to remain competitive,” and that the “ultimate decision will be
that this plant will close and we’ll move south.” (C.P. Exh. 5, p. 15–
16.) Thus, Sawyer’s rather flimsy denial that he made such remarks is
not credited. Marks, it should be noted, testified she never gave her
bargaining team any specific instructions, that her directions were
simply strategic, and that her only instructions were to “get a contract,
you know, make sure we can earn a profit based on whatever econom-
ics are there” (Tr. 688). However, the bargaining notes, as indicated,
contradict Marks for they clearly show Sawyer informing the Union
that Marks was insistent on obtaining subcontracting and mandatory
overtime. Although evasive in his testimony, Sawyer never expressly
denied that Marks had given him such instructions. Given these cir-
cumstances, Marks’ above testimony is found not to be credible.
DORSEY TRAILERS, INC. 841
minded McHugh that the judge in the prior proceeding had
found that the Company was not engaging in subcontracting,
and that consequently the Respondent was not obligated to
bargain over such work. McHugh responded that the judge had
found the Company was engaging in subcontracting, and in-
sisted that the Company was engaging in bad-faith bargaining
by refusing to provide the information. The bargaining notes
reflect that Respondent thereafter agreed to furnish the subcon-
tracting information, but advised that the information was not
in written form and that “Mike is working on getting this info
down on paper.” It cautioned, however, that the information
might not be available on time. The Union’s bargaining notes
similarly show Sawyer warning that if production requirements
were restricted, the Respondent “could shut the plant down and
move all the work out.” Sawyer told the Union that he was not
threatening them but simply stating that this could happen, that
Respondent was not trying to take away employees’ jobs but
rather wanted to keep a plant “up here in the North” (G.C.
Exh.-47, 2/24 bargaining notes).13
Although his testimony was full of self-contradiction and
confusion, Sawyer readily admits having repeated the “plant
closing” theme on numerous occasions. Thus, when asked on
direct examination by Respondent’s counsel when he first made
his remark, Sawyer claims it was first mentioned to McHugh
and the rest of the bargaining committee “some time after the
strike” began. However, on cross-examination by the Union’s
counsel, Sawyer admitted that beginning with the first bargain-
ing session and on numerous occasions thereafter he made it
clear to the Union that unless these issues, referring to the sub-
contracting and mandatory overtime, were resolved there was a
possibility the plant would close (Tr. 607; 625).
Despite reaching agreement on a variety of issues, by March
7, the Respondent was apparently getting fed up with the pace
of negotiations and its inability to arrive at an agreement. Thus,
following a lengthy session on March 7, Sawyer complained
that the parties were “wasting time.” He and the other com-
pany representatives thereafter walked out of the meeting stat-
ing that “when the Union is serious about talking about the
contract, to let them know,” in the meantime, he and the others
were going back to the plant to work on the Company’s strike
plan.14 The parties met once in March and eight times in April.

13 The notes do not make clear if the “Mike” being referred was
Mike Gordy, Company Attorney Mike Mitchell, or some other individ-
ual. The Company’s bargaining notes also reflect a claim by Gordy
that the Company could not possibly give the Union the information
“within this period of time.” While neither set of notes explains the
timing problem which the Respondent was alluding to, Sawyer’s sub-
sequent comments, found in the Company’s bargaining notes, leads me
to believe that the timing problem related to a possible closure of the
Northumberland facility. Thus, the Company notes reflect that in re-
sponse to McHugh’s inquiry regarding the information, Sawyer replied,
“We’re getting the best legal advice, we want and must have the right
to have subcontracting, to augment what we’re doing already. We
enjoy our N.E. location, Marilyn Marks has to make a decision to keep
Northumberland open or move southeast to another plant to be com-
petitive. We need flexibility to be cost-effective . . . The ultimate deci-
sion will be that this plant will close and we’ll move south; as much as
60% of the business is in the southeast. We’ve been handcuffed up
here for the last 2 to 3 years.” (C.P. Exh. 5, pp. 15–16.)
14 McHugh’s suggestion that Sawyer also remarked, “[L]et the strike
begin,” is not supported by the bargaining notes. I do not, however,
believe McHugh intentionally lied about hearing the remark. Rather,
his assertion was, in my view, an innocent misunderstanding as to what
he may have heard Sawyer say that day.
At an April 6 session, agreement was reached on retention of a
60-day probationary period (G.C. Exh. 24). Three meetings
were held in May.
On May 25, the Union held a membership meeting during
which employees ratified the contract language already agreed
to by the parties, including the dues-checkoff provision and the
60-day probationary provision for new hires. Employees also
rejected all other company proposals that were not supported by
the union bargaining committee. McHugh claims that after the
meeting, he called Gordy to inform him of the membership
vote, and that Gordy replied, “Sorry to hear that.”
On June 8, Gordy notified the Union that despite the parties’
agreement to continue in effect the terms and conditions of the
expired contract during negotiations, the Respondent was pro-
hibited by law from continuing to check off union dues in the
absence of a signed, written agreement and that, consequently,
it would no longer do so as of the next pay period. Gordy fur-
ther indicated that Respondent was willing to discuss extending
the old contract for a period of time (G.C. Exh. 28). McHugh
responded that dues checkoff was a term and condition of em-
ployment that Respondent was required to continue, and that he
saw no legal impediment to Respondent’s ability to continue
doing so. McHugh further noted that the dues-checkoff provi-
sion was one of several proposals that the parties had already
agreed to and been ratified by its members, and that while Re-
spondent had made several unilateral changes since March 1, in
the employees’ terms and conditions of employment the Union
was not inclined to turn the other cheek every time such a uni-
lateral change was made. He again insisted that Gordy not
discontinue dues checkoff.
At some point during the early stages of the negotiations,
e.g., early spring, Bankhead’s owner, Taylor, according to
Marks, personally notified her that he was planning to sell his
Cartersville, Georgia trailer manufacturing business. Marks
became acquainted with Taylor through membership in an in-
dustry association, and eventually became a close business
associate of his by virtue of the subcontracting arrangement
entered into in early 1993, when Taylor began manufacturing
dump trailers for Respondent at his Bankhead facility in At-
lanta, Georgia. Marks explained that Taylor decided to person-
ally notify her of his intent to sell his Cartersville business so
that she would not hear the news from the street and be con-
cerned it might affect their existing subcontracting arrange-
ment. Taylor, however, went beyond mere notification, for
later that summer he reported to Marks on the status of his at-
tempt to sell the business, advising her that while negotiations
for the sale had at first broken off, he managed to get the nego-
tiations restarted and had indeed succeeded in selling the busi-
ness. By letter dated August 4, Taylor informed Marks that he
had sold the business to Cottrell, Inc., and that he expected to
complete existing orders in several months.
Aside from her statement as to why Taylor initially contacted
her, Marks offered no explanation as to why Taylor would con-
tinued to communicate to her the details of the success or fail-
ure of the sale of his business. What is apparent from her tes-
timony is that she and Taylor maintained close communications
and that he kept her abreast of what was happening with his
facility (Tr. 715). There is no question that their relationship
was a cordial one, as evident from the August 4 letter wherein
Taylor expresses his appreciation for his relationship with
Marks. Although Marks claims she did not view Taylor’s Au-
gust 4 letter as significant, she offered no explanation as to why
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 842
she sent a copy of the letter to three of the Company’s highest
executives, to wit, its vice president of finance, Charlie Chit-
wood, vice president of sales, Charlie Mudd, and vice president
of engineering, David Kemp (G.C. Exh. 52).
3. The strike begins
The Union began a strike at 6 a.m., Monday, June 26. The
employees had previously authorized the union leadership to
call a strike if it was deemed necessary. At a February 24
meeting, the union leadership discussed with employees the
differences between an economic strike and an unfair labor
practice strike, and stressed that to be eligible for State unem-
ployment benefits during a strike, it was necessary to have any
walkout classified as an unfair labor practice strike. The Union
identified certain conduct already engaged in by the Respon-
dent that could be used to support such a strike, including, inter
alia, its unilateral implementation of the new attendance policy
and the concomitant elimination of the “Dorsey Dollars” pro-
gram, its issuance of written warnings to union officers for
conducting official union business, the refusal to provide the
Union with information regarding the subcontracting of unit
work, and the threats to close the plant made by Supervisor
Keith Reader to various unit employees. McHugh, according to
the Union’s internal notes, told employees that they “have to
get the Company to make changes in the terms and conditions
of employment so we can use them for an unfair [labor practice
strike].” He further stated that the Respondent was getting frus-
trated, and that Sawyer had made the comment, “Let the strike
begin” on walking out of the prior session. The employees then
voted to rely on these factors in the event a strike was called (R.
Exh. 17, pp. 16–18).
At a June 24 meeting, the union leadership recommended,
and employees agreed, to commence a strike on June 26. The
motivation for the strike was to be the unfair labor practices
discussed during the February 24 meeting, as well as other
conduct engaged in by Respondent since then, including Re-
spondent’s attempt to resolve grievances without union in-
volvement, its decision to discontinue dues checkoff, and the
forced transfer of employees from one classification to another
(R. Exh. 17, pp. 39–40; Tr. 195). A picket line was established
on June 26, with employees carrying signs that read, “UNFAIR
LABOR PRACTICE” and “LOCKED OUT.” On or about July
13, the Respondent hired temporary workers through World-
wide Labor Support of Miss., Inc. to perform the struck work
(Jt. Exh. 2).
The strike lasted from June 26, to October 16, at which time
the employees made an unconditional offer to return to work
(G.C. Exh. 30).
The Respondent contends it was not prepared for a strike and
was caught off guard when employees walked out on June 26
(R. Br. 40). Marks testified in this regard that she “was just
very surprised” by the strike, almost in “disbelief,” that em-
ployees had walked out, and that she further anticipated the
strike would be short lived and “thinks” she may have told
Respondent’s board of directors it would not last more than 1
week (Tr. 689). However, Marks’ above remarks, and Respon-
dent’s suggestion that it was not prepared for the strike, is sim-
ply not credible in light of evidence suggesting otherwise. For
example, approximately 1 month before negotiations had even
commenced, Gordy wrote to Bankhead Enterprises President
Frank Felder explaining, inter alia, that work may need to be
transferred to Bankhead in the event of a strike at Northumber-
land (G.C. Exh. 8, p. 2). Clearly, such remarks suggest that the
Respondent was making preparations for a strike some 6
months before it actually occurred. Gordy’s testimony that he
discussed security arrangements prior to the strike with the
Company’s regular guard service provider, Wells Fargo, also
reflects prestrike preparations by Respondent. Finally, Saw-
yer’s own comment during the February 23 bargaining session,
that the Company “was prepared for a work stoppage,” and the
statement by Respondent’s negotiators as they walked out of
the March 7 bargaining session, that they were going to work
on their strike plans, belies Respondent’s claim to having been
caught by surprise by the June 26 strike. While I have no doubt
that the Respondent did not precisely when or if a strike might
be called, I nevertheless remain convinced that Respondent had
anticipated and was indeed prepared to take on a strike.
4. The July–September bargaining sessions
The pace of negotiations slowed considerably once the strike
began, with the parties meeting only twice in July. At the July
6 session, McHugh renewed his objection to the discontinuation
of dues checkoff, and reiterated that both sides had signed off
on this proposal, that it had been ratified by the union member-
ship, and that employees had agreed to work under preexisting
terms and conditions, including the dues-checkoff requirement.
The Respondent in turn adhered to the view that Board law
prohibited it from doing so. When McHugh asked if the other
interim agreements reached by the parties remained in effect,
Sawyer responded that it didn’t matter as the employees were
not working. Sawyer further informed the Union that he was
withdrawing the overtime proposal that was on the table prior
to the strike. Gordy explained that Respondent chose to with-
draw the proposal because it was too liberal, and suggested that
as Respondent appeared to be weathering the strike it thereafter
intended to present the Union with more stringent proposals
(Tr. 569–570). The July 6 meeting lasted approximately 1
hour. A July 28 meeting was even shorter, lasting less than
one-half hour. Although neither side presented any new pro-
posal, Sawyer, in keeping with his July 6 comment that Re-
spondent would present more stringent proposal, revised the
probationary period language that had previously been agreed
to by the parties by proposing that the period be increased from
60 to 90 days. No meetings were held in August, and while the
parties met for about 20 minutes on September 12, no progress
was made.
Sawyer admitted that during one of the above three bargain-
ing sessions, he could not recall which, he mentioned to
McHugh and the rest of the Union’s bargaining committee that
“unless we can come to some kind of agreement and get people
back to work and stop hemorrhaging, that this work action was
putting the future of the plant in jeopardy” (Tr. 607). He fur-
ther recalled telling McHugh during a phone conversation the
week of September 17, “I have a lot of friends that work at this
plant, there are a lot of people who have worked here their en-
tire adult life, and I’m afraid that if this thing doesn’t get settled
real soon, and I’m talking about in the next several days, that
this thing is going to be taken out of our hands” (Tr. 609).
5. The acquisition of the Cartersville facility
According to Marks, as the strike dragged on the Company’s
losses mounted, with Respondent virtually overnight going
from a $300,000 monthly prestrike monthly profit to a monthly
loss after the strike of about the same amount as customers
began withdrawing orders, forcing the Respondent to cancel
orders for supplies and materials. Seeking to maintain produc-
DORSEY TRAILERS, INC. 843
tion levels, the Respondent put its salaried employees to work
the production line, and hired temporary workers through
Worldwide Labor Support.15 Respondent purportedly sought to
get its competitors to perform some of the struck work. Marks
testified to having personally contacted her competitors, includ-
ing Osh Kosh Trailers and Pine Trailers, to see “if they could
build a Dorsey product for us” that Respondent would deliver
to its customers under its own label in the hopes of keeping
them from going to the competition (Tr. 691).
a. The September 25 management meeting
On September 25, Marks chaired a meeting attended by
Sawyer, Gordy, Finance Vice President Charlie Chitwood,
Sales Vice President Charlie Mudd, Engineering Vice President
David Kemp, and Plant Manager Doug Allgood, intended as a
“brainstorming” session to discuss ways of coping with the
ongoing strike. Marks, Gordy, and Sawyer all provided testi-
mony as to what was discussed at the meeting, with Gordy
providing the greatest detail, followed by Sawyer, and then
Marks.
The purpose of the meeting, according to Gordy, was to dis-
cuss the impact of the strike on production, and to determine if
the Company should cave in to the Union’s demands. The high
cost of continuing to use temporary workers was also dis-
cussed, and the hiring of permanent replacements was also
considered but rejected because of a belief it might be too diffi-
cult to acquire a sufficient number of qualified workers. Also
considered and rejected was the possibility of using competitors
to perform the work. At some point during the meeting Marks,
according to Gordy, mentioned that maybe Bankhead’s owner,
Taylor, might be able to help out, stating she had learned Tay-
lor was selling his Cartersville business and was actively look-
ing for other business to put into that plant. Gordy explained
that the thought being considered was that since Taylor was
already building dump trailers, he might be willing to enter into
a subcontracting arrangement to build flatbed trailers as well,
and this would allow Respondent to keep some production
going. After a short recess, Marks informed the attendees that
she had just spoken by phone with Taylor and that the latter had
expressed an interest in selling the Cartersville facility to
Marks. Gordy stated that he, Allgood, and Owens were se-
lected to go inspect the facility and ascertain its potential (Tr.
543–547).
Sawyer’s version was not very different from Gordy’s. Ac-
cording to Sawyer, the purpose of the meeting was to determine
how to stop the “bleeding,” and that there was general agree-
ment that caving in to the Union was not a viable option be-
cause the Company had already taken a beating and it would
not be the sensible thing to do. Other options considered and
rejected included continued use of temporary replacements,
farming out the struck work to other manufacturers, and adver-
tising for permanent replacements. The latter was not deemed
feasible because of the difficulty in hiring such employees and
in getting them to cross a picket line in a hostile environment.
Also considered was the possibility of increasing subcontract-
ing to Bankhead. This, however, was rejected because Bank-
head was already at full capacity. Other options discussed,
according to Sawyer, was transferring work to Respondent’s

15 The Respondent’s agreement with Worldwide Labor contains a
“Cancellation Charge” provision that guarantees 40 hours pay for each
temporary employee for the first week, with no further liability ensuing
for cancellation after the first week (R. Exh. 23, p. 5).
Elba facility. This too was rejected for similar reasons and
because as a unionized work force, the Elba employees would
not be willing to perform struck work. At some point in the
meeting, almost as an afterthought according to Sawyer, Marks
mentioned “[S]he had learned earlier that the Cartersville op-
eration of Bankhead Enterprises . . . had been sold to their only
competitor and that they were looking for work to put into that
plant.’’ Following an afternoon break, Marks returned to the
meeting and stated she had just spoken with Taylor, and that
the latter “had been receptive to the idea of trying to work to-
gether with us on the subject and had invited her to send out
two or three of her operations people to take a look at the facil-
ity and see if it was something that made sense.” Sawyer testi-
fied that after the meeting, Gordy, Allgood, and Owens drove
to the Cartersville plant to conduct a tour of the facility (Tr.
601–605).
Marks’ account of the meeting was somewhat sparse. She
recalled that the management team gathered to discuss various
options, including trying to get Respondent’s competitors to
build flatbed trailers for Dorsey, and bringing in salaried work-
ers from other Respondent-owned facilities to help with pro-
duction. Marks claims that at some point during the meeting
someone, probably even herself, asked what had happened to
“our friend’s plant up in Cartersville?” Marks purportedly went
around the table asking if anyone knew what Taylor had done
with the Cartersville facility, and received no response. After
this purported round of inquiries, Marks claims she tried calling
Taylor to ask about the facility, but instead reached Bankhead
President Felder, who told her the Cartersville business had, in
fact, been sold, that no other work had been found for the facil-
ity, and that the new owner was not interested in the actual
Cartersville facility itself. She claims she returned to the meet-
ing and advised the others of her conversation with Felder, and
that the latter had suggested they visit the Cartersville facility.
According to Marks, she thereafter directed Gordy and his boss,
Allgood, to visit the facility, and does not recall if she also
asked Sawyer to go with them (Tr. 690–694; 715).
On cross-examination, Marks admitted that while she tried to
get her competitors to perform the struck work, she never both-
ered to check with Taylor to see if such work could be per-
formed at Cartersville, despite her further admission that she
learned soon after being notified by Taylor of the sale that the
facility itself was not included in the transaction and that Taylor
would be looking for other work to put into that facility. Asked
to explain why she did not do so, Marks attributed it to “short-
sightedness,” noting that it simply never occurred to her to
follow up on the sale, and that the matter “just left my mind.”
Sensing the implausibility of her response, Respondent’s coun-
sel prodded Marks on redirect examination to elaborate further
on why it would not have occurred to her to contact Taylor.
Her further answer—that “it never occurred to me that we were
not going to be able to settle, settle the Northumberland strike
or reach a contract there”—in my view is equally as implausi-
ble, for this same consideration obviously did not inhibit her
from contacting other competitors. Marks’ above explanation
simply does not ring true and is not credited. Given her close
and longstanding business relationship with Taylor, and the fact
that she knew of Taylor’s interest in finding additional work for
that facility, I have difficulty accepting Marks’ assertion that at
no time prior to September 25, did she discuss with Taylor the
possibility of subcontracting work to, or actually purchasing,
the Cartersville facility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 844
There are, however, other reasons for doubting for Marks’
claim that the idea of using Cartersville to perform Northum-
berland bargaining unit work first came to her as an “after-
thought” at the September 25 management meeting. At an
October 13 meeting (discussed infra), Mitchell, according to
the Union’s bargaining notes, told the Union that Respondent
had been “actively” talking to Taylor regarding the purchase of
his facility “for the last 3-½ weeks,” thereby suggesting that
such discussions had been ongoing since September 19 or 20,
and contradicting Marks’ assertion that the matter was raised
for the first time at the September 25 meeting. Sawyer’s ad-
monition to McHugh during the week of September 17, that the
Union should end the strike within the next several days or the
matter would be taken out of their hands, further convinces me
that the Cartersville acquisition was being discussed prior to
September 25. Although Sawyer did not explain what if any-
thing he expected to happen within the next day that would
affect the contract talks, given Mitchell’s above remarks re-
garding the timing of such talks, it is reasonable to assume that
Sawyer was referring to the ongoing negotiations between
Marks and Taylor, and of the likelihood that an agreement for
the Cartersville facility seemed imminent. In light of the
above, Marks’ testimony that the idea of relocating to Carters-
ville was first raised at the September 25, meeting is found not
to be credible.
Although Sawyer and Gordy seem to corroborate Marks in
this regard, several inconsistencies in the testimony of all three
witnesses as to September 25 meeting cause me to doubt the
truthfulness of their accounts. Both Gordy and Sawyer, for
example, claim that Marks told the group she had had a phone
conversation with Taylor regarding the Cartersville facility.
Marks, however, claims she told the group she had spoken with
Bankhead’s president, Felder, not Taylor. Further, although
Gordy claims Marks reported to them that Taylor had expressed
an interest in selling the facility to her, no mention of Taylor’s
purported interest in selling Cartersville is found in either
Marks’ and Sawyer’s account. Moreover, while both Gordy
and Sawyer claim it was Marks who first raised the issue of the
Cartersville facility at this meeting, Marks herself was not cer-
tain if she, or someone else, broached the subject. Nor did
Gordy or Sawyer make mention in their testimony of Marks
going around the room asking each one present what they knew
about Cartersville. While I do not doubt that a management
meeting was convened on September 25, and that the strike was
the subject of discussion, I reject as without merit the Respon-
dent’s claim that the idea of purchasing the Cartersville facility
was raised for the first time at this meeting. Support for the
view that Respondent was considering the purchase long before
September 25, came from employee Yvette Derr. Derr, a unit
employee, had gone on strike with other employees, but chose
to return to work on August 28. She testified, credibly and
without contradiction, that during the first 3 days after her re-
turn to work, she rode to work with Keith Reader, an admitted
2(11) supervisor, and that on one of those occasions, Reader
mentioned to her that the Respondent had purchased or was in
the process of purchasing a plant in Georgia (Tr. 378–380).
Although Reader testified at the hearing, the Respondent made
no effort to elicit a denial of Derr’s account from him.16

16 Remarks made by Marks in a March 7, 1996 Annual Report to
Stockholders, further support the view that Respondent’s interest in
purchasing the Cartersville facility may in fact have predated the strike.
b. The September 25–October 5 events
Marks testified that between September 25, and October 5,
Director of Strategic Projects Jerry Owens, was assigned to
assess the financial and logistical implications of moving
Northumberland production to Cartersville, and of coming up
with a proposal to present to Taylor for the purchase of the
facility. She further testified that after some back and forth
negotiations, she and Taylor reached a “handshake” agreement
for the purchase and sale of the Cartersville plant, and that she
thereafter scheduled a second management meeting for October
5, which was also attended by Attorney Mitchell. At this meet-
ing, according to Marks, those present agreed to “continue to
try to move forward to reach ultimate contract with Mr. Taylor.
We would continue to try to work toward, see if he could move
his business out in time for us to build trailers on a timely basis.
This looks like an economically viable deal, let’s see if we can
reach final agreement” (Tr. 697). Marks claims that despite the
“handshake” agreement, certain problems needed to be re-
solved before the deal could be finalized, including trying to get
Taylor to complete his own work as quickly as possible so that
Respondent could move in, and environmental and zoning is-
sues, and that she personally was “probably primarily con-
cerned” about environmental problems that might cause her to
withdraw from the deal. Also causing her concern was the fact
that Taylor needed to satisfy his own customers’ demands
which presumably might delay implementing the deal.
Marks claims that between September 25 and October 5, she
met with Georgia government officials to inquire about eco-
nomic incentives that might be available should Respondent
decide to move, and received offers of assistance in the form of
tax credits, employee training, and reduced utility costs, which
made the move to Cartersville more attractive. Marks further
expressed surprise and dismay that neither the State of Penn-
sylvania nor local county officials had offered to help Respon-
dent stay in Pennsylvania. By the same token, however, noth-
ing in Marks’ testimony suggests that she went out of her way
to solicit such assistance from Pennsylvania State or local offi-
cials as she did with the State of Georgia. An October 16 memo
from Mitchell to McHugh makes clear that it was Respondent
who solicited such incentives from the State of Georgia (Jt.
Exh. 2). Without making similar inquiries from Pennsylvania

Thus, in her annual report, Marks told her shareholders that “after 18-
weeks of unproductive negotiations, we decided to establish a new
facility in North Georgia” (G.C. Exh. 6, p. 2). Marks was not ques-
tioned about her remarks, leaving one to speculate as what 18-week
period she was referring to. It is, however, unlikely that she was refer-
ring to the 18 weeks following the start of the strike on June 26, e.g.,
circa October 27, for, as more fully discussed below, the decision to
purchase by Respondent’s own account occurred no later than October
5, several weeks before October 27. Indeed, I find it more likely than
not that Marks was referring to the 18 weeks after the start of negotia-
tions on February 8, e.g., circa, June 8. In this regard, I find significant
that Marks in her remarks refers to the “unproductive negotiations,”
and not a need to perform struck work or maintain production, as the
basis for the purchase. Marks, as noted, had already been informed by
Taylor that he was selling his business and that the Cartersville facility
would in all likelihood be available sometime in the near future. The
Respondent had also by this time become frustrated by the pace of
negotiations, as evident by the walkout of its negotiators from the
March 7, meeting. Given these circumstances, I am convinced that the
Respondent was contemplating purchasing the Cartersville facility as
early as June.
DORSEY TRAILERS, INC. 845
governmental officials, Marks could not have known if the
latter had similar incentives to offer.
Gordy provided a slightly different version of the October 5
meeting. According to Gordy, a decision was made at that
meeting to approach Taylor about purchasing his facility, and
that if an agreement was reached, Respondent would then bar-
gain with the Union about the effects of moving unit work from
Northumberland to Cartersville, “and about the possibility of
what would be the long term decision for that plant.” Respon-
dent further decided at that meeting that “the work that was
currently being performed [at Northumberland] would be fin-
ished there; that any orders that had not been started would be
taken to the Cartersville location,” and that new orders arriving
at Northumberland would also be sent to Cartersville (Tr. 577).
Gordy was assigned responsibility at this meeting for starting
up the Cartersville facility (Tr. 552–553). Gordy testified that
the “handshake” agreement between Marks and Taylor oc-
curred after this October 5 meeting. This, however, contradicts
Mark’s assertion that the “handshake” agreement took place
prior to October 5 meeting. Gordy’s last day of work at North-
umberland was October 12, after which he moved to Carters-
ville to assist in the start up of the operation.17
On October 5, Marks notified her board of directors that she
had reached agreement with Taylor to buy Cartersville, and of
her intent to announce the agreement to all of Respondent’s
constituencies, including the Cartersville employees, on Octo-
ber 9 (Jt. Exh. 2). The record reflects that either on or before
October 5, the Respondent had developed a detailed plan and
timetable for the closure of Northumberland and the move to
Cartersville, which identified some 28 tasks that were to be
accomplished within a set timeframe for the successful comple-
tion of the move (G.C. Exh. 51). A copy of the plan was sent
by Owens on October 5, to all senior and other management
officials involved with the closing of Northumberland and/or
purchase of Cartersville, including Sawyer, on October 5.18
6. The Union is notified of the Cartersville purchase and of the
decision to relocate all unit work
On October 9, Sawyer phoned McHugh at home to advise
him of the purchase and, unable to reach him, left the following
message on his answering machine:

This is Kenny Sawyer with Dorsey Trailers. Just call-
ing you this morning to let you know we’ve made a deci-
sion. We have purchased another trailer manufacturing
facility down in Georgia, and plan to move our Northum-
berland production down here within the next four to six
weeks. I wanted to talk to you about bargaining over the
decision itself, as well as the outcome of that decision. I’ll

17 As the evidence herein supports a finding, which I have made be-
low, that the decision to move to Cartersville had already been made by
October 13, Gordy’s and Respondent’s claim that his relocation to
Cartersville was only tentative is found to be without merit. The fact
that Gordy did not move his family to Cartersville right away does not
establish that Gordy’s move was not permanent, for it is not an un-
common practice for an individual to relocate first before moving his or
her family to the new location.
18 In his memo, Owens advises against assuming from the schedule
that a decision to close Northumberland had already been made. How-
ever, as more fully discussed below, the evidence supports a finding
that such a decision had indeed been made. Thus, I am convinced that
either Owens simply intended to cover up a decision already made, or
had been kept in the dark regarding the true nature of the decision.
be available during the day today, at [phone number], if
you want to give me a call back, or [1–800 number], on
voice mail, if you want to leave me a message where I can
get in touch with you. But again, we’ve made the decision
to move the production out of Northumberland. The com-
pany has purchased a plant and we plan on moving—
moving that work out. In terms of the Northumberland fa-
cility, long-term, as far as what we’re going to do, that’s
up in the air right now, but we’re certainly open to bar-
gaining with you and your committee over there. We’ll
make ourselves available to do so whenever you have
some open time. All right, thank you. [G.C. Exh. Tr. 31.]

Sawyer was not being truthful when he denied in his phone
message knowing what Respondent’s plans were for the North-
umberland facility, for Owens, as indicated, had earlier sent
him a copy of Respondent’s plan and timetable for the closure
of the Northumberland facility. Sawyer has not denied know-
ing of or seeing the plan prior to October 9. Sawyer followed
up his phone message with a confirmation letter informing
McHugh that Respondent intended to begin production of both
flatbed and dump trailers at Cartersville as soon as possible.19
He further informed McHugh in his letter that Respondent was
seriously considering closing the Northumberland plant, and
that it stood ready to bargain with the Union “over both the
effects of that decision and the decision itself” (Jt. Exh. 2, p.
29).
On receipt of Sawyer’s phone message on October 9,
McHugh phoned Sawyer to elicit more information about the
decision to move production work to Cartersville, and was
again told that that decision had been made. When McHugh
asked what the Union might do to reverse that decision, Sawyer
informed him that the decision was irreversible, that the Union
could do nothing to prevent the relocation of unit work, but that
the Company stood willing to discuss the long-term effects of
the plant (Tr. 203–204). Sawyer did not deny having had this
conversation with McHugh or mentioning that the relocation
decision was irreversible.
On October 11, McHugh told Gordy he had received Saw-
yer’s message and reiterated an earlier request made to Sawyer
that the Union wanted to bargain over the decision and the ef-
fects of the transfer of unit work to Cartersville (G.C. Exh. 32).
That same day, the Respondent issued a press release announc-
ing its agreement with Bankhead for the purchase of the Car-
tersville facility at a price of $2 million, and its intent to begin
the manufacture of flatbed and dump trailers at that location by
December (G.C. Exh. 42).
7. The October–November sessions/events
a. October 13 session
On October 13, the parties met for the first time since the
brief September 12 meeting. However, the Respondent’s two
principals during the previous sessions, Sawyer and Gordy, did
not appear. The Respondent instead sent Attorney Mitchell and
its vice president of administration, Paul Morrow, in their
place. At the outset, Mitchell informed the Union that he and
Morrow were replacing Sawyer and Gordy as the Company’s
negotiators, with himself as its chief spokesperson. Winnick
was also in attendance. Mitchell informed McHugh of the Car-
19 The record reflects that production in Northumberland at the time
was limited to flatbed trailers only, and that the manufacture of dump
trailers was still being performed by Taylor at his Bankhead facility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 846
tersville purchase, and stated that Sawyer and Gordy were busy
with their new duties opening up the new facility. He further
advised that Respondent would be shifting production of both
flatbed and dump trailers to Cartersville, and that work at
Northumberland would cease by the end of October or the first
week in November. Mitchell averred that Respondent had no
need for two facilities, but would nevertheless bargain “over
the effect and the reasons and we’ll answer any questions.”
(G.C. Exh. 47; C.P. Exh. 5, p. 47). Mitchell then withdrew the
Company’s last offer from the bargaining table, claiming that
changed circumstances rendered its offer inappropriate, and
that discussion was needed to determine whether Respondent
will continue to operate in Northumberland. Asked when the
Cartersville was placed on the “selling block” and when discus-
sions were initiated between Taylor and Respondent for the
purchase and sale of the facility, Mitchell responded “3-½
weeks” ago, or approximately around September 19 or 20.
However, at another point in the meeting, according to the Un-
ion’s bargaining notes, Mitchell changed his earlier assessment
by suggesting that negotiations between Marks and Taylor
began “3 weeks” ago (G.C. Exh. 47).20
Mitchell also advised that the decision to buy the Cartersville
facility and move production there was separate from the ques-
tion of whether the Northumberland facility would remain
opened, emphasizing that Northumberland’s future was in the
Union’s hands, that if the Union could give Respondent a rea-
son to keep the facility opened, it would be considered (G.C.
Exh. 47). The Respondent’s bargaining reflect that Mitchell
told McHugh, “The decision has not been made yet and the
decision to keep the plant open is up to you” (CP Exh. 5, p. 51).
At the meeting, McHugh requested certain information in order
to prepare proposals. Mitchell assured him that he would have
the information before the next agreed-upon session of October
19. The duration of this first meeting is not made clear in the
record.
b. The offer to return to work
On Monday, October 16, the Union, on behalf of strikers,
made an unconditional offer to return to work, the receipt of
which was acknowledged by Morrow (G.C. Exh. 30). For rea-
sons unexplained in this record, the Respondent chose not to
respond to the Union’s offer until 3 days later, e.g., during the
next bargaining session held on Thursday, October 19.
c. The October 19 session
This session began with McHugh stating it had no proposals
to offer as he had just received the information requested on
October 13, just 2 hours earlier. Discussion then turned to the
employees’ October 16 offer to return to work. Mitchell stated
that Respondent would begin discharging temporary employees
and reinstating strikers the following week, and could not do so
sooner because of Respondent’s contractual arrangement with
Worldwide Labor, which he claimed required Respondent to
provide the temporary employees with 1 week’s advance notice

20 The Company’s notes only show Mitchell stating that the Carters-
ville facility was put up for sale “about 3-½ weeks ago,” but do not
contain his further statement that Respondent began negotiating for the
purchase at about the same time. Although the Union’s notes show
Mitchell vacillating somewhat regarding the timing of the start of the
Cartersville negotiations, Mitchell’s claim that said negotiations began
around September 19 or 20, e.g., 3-½ weeks earlier, is accepted as
accurate.
of the cancellation. Mitchell offered to recall strikers according
to seniority, provided they had the necessary skills, and offered
to grant Attinger superseniority recall rights. He asserted, how-
ever, that not all strikers would be returned because the cancel-
lation of orders had reduced the amount of work that was avail-
able, and that those not returned would be deemed laid off (C.P.
Exh. 5, p. 52; G.C. Exh. 47, 10/19 notes). Following a caucus,
McHugh responded that he would go along with the supersen-
iority proposal for Attinger, and questioned Respondent’s deci-
sion to retain the temporary workers for several more days.
Mitchell then gave the Union a 60-day notice of plant clo-
sure pursuant to the Worker Adjustment and Retraining Notifi-
cation (WARN) Act of 1988 (29 U.S.C. §2101, et. seq.), stating
the notice was conditional because Respondent had not yet
decided what to do with the Northumberland facility. Mitchell
stated his belief that Respondent was not required to give the
Union such a 60-day notice, but was doing so out of an excess
of caution (G.C. Exh. 34).21
Mitchell explained that the only reason the Northumberland
closing was on the table was because of the Cartersville pur-
chase, and that given the tax breaks Respondent was receiving
from the State of Georgia, the lower cost of living which trans-
lated into lower salaries, and the lower freight costs, any
agreement reached by the parties regarding Northumberland
would have to be as economically attractive as the Cartersville
deal. He further pointed out that while the terms of its last offer
had at one time been acceptable to Respondent, it no longer
sufficed as an inducement for Respondent to remain in North-
umberland, and that any package proposed by the Union had to
21 Jean Neitz, a nonunit employee, who worked as a receptionist for
Winnick, testified she received a 60-day WARN notice in mid-
September on her return from vacation, and that she was familiar with
such notices because she had gone through a similar closing with a
prior employer. Her testimony that her last day of work was November
16 or 17, and that she received a full 60-day notice of the closing, coin-
cides with her claim that she was given the WARN notice in mid-
September. The Respondent at the hearing offered little opposition to
Neitz’ testimony, and its posthearing brief is silent on the issue. The
only “challenge,” if it can be called that, to Neitz’ claim came from
Mitchell who claimed to have no explanation for why Neitz would have
received a 60-day WARN notice in mid-September. Rather, appearing
somewhat bewildered, Mitchell admitted he was involved in the prepa-
ration but not the mailing of the WARN notices to nonunit employees,
but testified both unit and nonunit employees were issued notices at the
same time, which presumably would have been October 19, when unit
employees were given notice through the Union (Tr. 664–666). How-
ever, Mitchell’s oral testimony, that the Union and nonunit employees
were simultaneously issued 60-day WARN notices, conflicts with his
own prior statement to the Union at the October 26, bargaining session
that Respondent “gave a notice to the nonbargaining unit people first”
(C.P. Exh. 5). Overall, Mitchell’s attempt to refute Neitz’ testimony
that she received a 60-day notice of closing in mid-September was
unconvincing and simply not credible. Unlike Mitchell, Neitz was a
disinterested witness, rendering her testimony more reliable. Further,
the Respondent could easily have proven Neitz wrong by producing a
copy of the WARN notice issued to her, or to other nonunit employees,
reflecting the date of issuance, just as it did with the WARN notice
served on the Union on October 19. The Respondent did not do so, and
has made no claim that such notices were not readily available for
production, leading me to believe that the Respondent chose not to
produce a copy of the WARN notice issued to Neitz and other nonunit
employees because they would not have supported its case. MK Rail-
way Corp., 319 NLRB 337, 342 (1995). Accordingly, I credit Neitz
and find that she, and in all likelihood all other nonunit employees, was
given a 60-day WARN notice of plant closure in mid-September.
DORSEY TRAILERS, INC. 847
be real attractive and contain serious concessions. Mitchell
warned that unless the Union returned with a serious conces-
sionary proposal in the near future, “we’ll not be able to operate
in Northumberland.”
The parties’ bargaining notes reflect that McHugh at one
point asked Mitchell for direction on what Respondent ex-
pected in terms of concessions. Mitchell, however, responded
that he had no proposals of his own to present, but that Respon-
dent was looking for reductions in salaries and benefits, manda-
tory overtime, and a free hand in running the business.
Mitchell was not being truthful in claiming he had no company
proposals to present that day, for Respondent’s own bargaining
notes make clear that Mitchell had with him, but chose not to
turn over, a company proposal identifying in “bullet point”
fashion some 31 concessions that Respondent felt were needed
for it to remain in Northumberland (G.C. Exh. 36).22
Mitchell and McHugh disagree on whether the latter re-
ceived a copy of the “bullet points” proposal on October 19.
Mitchell, for example, claims that during an off-the-record
discussion held away from the bargaining table that same day,
he handed McHugh a copy of the proposal and offered to dis-
tribute copies to other members of the union bargaining team.
However, according to Mitchell, McHugh “suggested that that
would not be the appropriate thing to do” and that as a result,
the proposal was not circulated to the others. Mitchell never-
theless claims that he “verbalized” the “bullet points” and read
the proposal aloud to the union committee, thereby making it
clear to the union committee “what we were looking for” (Tr.
651).
McHugh admits that on October 19, Mitchell told him he had
a proposal, but claims it was mentioned to him after the meet-
ing, that Mitchell asked when would be the best time to present
it, and that he told Mitchell to present it at the next meeting.
He expressly denied being given a copy of the “bullet points”
(Tr. 307). McHugh seemed to recall that during the October 19
meeting Mitchell may have mentioned something about having
a proposal to offer the Union, but did not recall any discussion
by Mitchell of the “bullet points” proposal. McHugh was obvi-
ously mistaken about hearing Mitchell make mention of a pro-
posal during the October 19 meeting, for the bargaining notes
make clear that Mitchell informed the Union he had no pro-
posal to offer that day. Respondent’s bargaining notes, for
example, show Mitchell stating: “We don’t have a proposal
either” (C.P. Exh. 5, p. 53), while the Union’s notes similarly
show Mitchell remarking, “I have no proposals prepared for
you at this time” (G.C. Exh. 47).
As between Mitchell and McHugh, I credit the latter and find
that McHugh was not given a copy of the “bullet points” pro-
posal on October 19. Rather, I find that Mitchell was first told
of the proposal and possibly some of its contents after the Oc-
tober 19 meeting had ended, and that the proposal was not pre-
sented to the Union until the start of the next bargaining session
on October 26. A notation in the upper right-hand corner of the
“bullet points” proposal given the Union, reading, “Received
10/26/95 from Company,” supports McHugh’s testimony as to
when the Union received the proposal (G.C. Exh. 36). Nor do I

22 The concessions sought included, inter alia, a 5-year contract, a
20% across-the-board pay cut with a freeze on wage increases for the
life of the contract, reductions in the number of paid holidays from
eleven to eight, substantial cuts in the amount of vacation time employ-
ees could accrue, and changes in group medical insurance plan includ-
ing an increase in the co-pay for employees.
find credible Mitchell’s assertion that he read and verbalized
each “bullet point” at the October 19 session, for not only did
he express to the Union that day that he had no proposals to
present, nothing in the Union’s or Respondent’s bargaining
notes, or for that matter the suspect “Morrow” notes, even re-
motely suggests that any such recitation or discussion of the
“bullet points” proposal by Mitchell took place that day.
Finally, the bargaining notes of that meeting show, and
Mitchell readily admits, that he sought to steer the Union into
effects bargaining, despite the fact that the parties had thus far
held only one meeting to discuss the relocation and plant clos-
ing decision, and that no proposals had even been exchanged
(Tr. 669). The meeting ended with Mitchell agreeing to pro-
vide the Union with certain information, and reminding the
Union that Northumberland could not remain open without
serious concessions, and that the matter of the closing was
“pretty much” up to the Union. This meeting, as noted, pro-
duced no exchange of proposals or any bargaining on the plant
closing issue, and lasted a total of 4 hours (G.C. Exh. 47).
d. The October 26 session
At the start of this meeting, McHugh informed Mitchell that
having just received a copy of the “bullet points” proposal, he
was unprepared to respond with any counterproposals. He did,
however, submit a concessionary proposal on mandatory over-
time which Mitchell summarily rejected, describing it as “water
under the bridge” and stating it would have been nice if
McHugh had presented it sooner. Mitchell expressed a will-
ingness to give McHugh a reasonably short but unspecified
period of time in which to respond to the “bullet points,” but
cautioned that the clock was ticking on the 60-day WARN
notice, that Respondent could establish whatever wages and
benefits it wanted to at the Cartersville facility and had good
economic reasons for closing Northumberland, and that the
Union had to come up with a proposal that would convince the
Respondent to want to stay in Northumberland. Mitchell then
informed McHugh that by 4:30 p.m. that afternoon, all tempo-
rary workers would be gone and that Respondent could, in all
likelihood, reinstate some 16 strikers during the weekend, but
that this was subject to change. As to the total number of em-
ployees that might be reinstated, Mitchell estimated that to be
some 30 employees, more or less.
Prior to adjourning, the parties discussed when they would
next meet. McHugh pointed out that on Monday, October 30,
the Union would be holding a membership meeting to draft
proposals. Mitchell responded that he would be willing to meet
“anytime, day, night, holiday” but then qualified his response
by stating he would prefer not to meet on either the following
Thursday, November 2, or Friday, November 3, but could meet
on Tuesday, October 31, or Wednesday, November 1.
Despite an exchange of proposals, the bargaining notes make
clear that except for the Union’s mandatory overtime proposal
which Mitchell rejected, no substantive discussion took place
on the Respondent’s proposal or on the plant closing issue in
general. The entire meeting lasted less than 2-½ hours (G.C.
Exh. 47).
e. The post-October 26 correspondence between the parties
By letter dated October 27, Mitchell expressed to McHugh
the need to move the bargaining process forward “as quickly
and expeditiously as possible” (Jt. Exh.1). He further notes that
despite knowing of the potential closing of Northumberland
since October 9, the Union has submitted only one proposal on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 848
mandatory overtime during the 3-week period, and that that
proposal was rejected because it was “too little, too late.” Re-
garding the “bullet points” proposal, Mitchell states that the
Union should be prepared to address each “bullet point” at the
next session, noting that while he understands many union
members might not be willing to continue working under the
conditions set forth in the “bullet points,” the reality is that this
is what it would take for the Respondent to keep Northumber-
land opened.
It appears that Mitchell and McHugh conversed soon after
October 27, for on October 31, Mitchell wrote to confirm said
conversation. In his October 31 letter, Mitchell tells McHugh
that Respondent needs to make a decision immediately on the
Northumberland closure with or without the Union’s input, and
suggests the Union was aware as early as September that the
plant might close. The letter faults the Union for having sched-
uled only three meetings, and that except for the mandatory
overtime proposal submitted on October 26, the Union had thus
far failed to produce a comprehensive proposal. Mitchell then
suggests that the parties move into “effects” bargaining, unless
the Union was prepared to come to the next meeting with a full,
complete, and comprehensive written proposal addressing each
of the items in the “bullet points” proposal. Mitchell further
advises that Respondent would be justified by the Union’s de-
lay in closing the plant without any further discussion, except
with respect to “effects” bargaining. He concludes by stating
that Respondent intended to make a final decision regarding the
plant closure on November 4, that the Union should submit any
proposal it wished to have considered prior to that date, and
that in the absence of any such proposal, the Respondent would
proceed to make its decision to close without such union input
(G.C. Exh. 38).
In a November 4 response, McHugh denies Mitchell’s asser-
tion that the Union was notified “as early as September” of a
possible plant closing, noting that company documents pro-
vided to it show that discussions regarding the purchase of
Cartersville did not even begin until late September. McHugh
also denies that the Union is engaging in bad-faith bargaining,
stating that it was Respondent who was sending out mixed
messages as to what it intended to do at Northumberland. He
noted, for example, that while claiming to be interested in con-
tinuing negotiations with the Union towards a new Northum-
berland agreement, the Respondent had continued to aver that
all Northumberland production was to be transferred to the
Cartersville facility. Given these circumstances, McHugh que-
ried Mitchell as to what would remain at Northumberland for
unit employees to do, and what if anything any such agreement
would cover. McHugh points out that in order for the Union to
intelligently bargain over anything other than the effects of the
Northumberland closing, the Union would need to know what
work was to be performed at the plant should an agreement
could be reached. McHugh faults the Respondent for failing to
provide it with this information and states that, under these
circumstances, Mitchell’s assertion that the Union had delayed
the bargaining process was simply incorrect. Finally, McHugh
accuses Respondent of engaging in a ruse by publicly proclaim-
ing its desire to bargain with the Union over the decision to
close when it was fairly obvious the decision to close was made
before Respondent offered to bargain. The letter advises
Mitchell that the Union was prepared to immediately begin
bargaining over the effects of the plant closure, but that in do-
ing so it was not waiving its right to assert that the Respondent
did not bargain in good faith over its decision to close North-
umberland, nor waiving its right to claim that the closing of the
plant and the transfer of work to the Cartersville, facility was
unlawful (G.C. Exh. 39).
f. The November 6 session
The parties met one last time on November 6, for approxi-
mately 2-½ hours (R. Exh. 28; G.C. Exh. 47). The following
summary of the meeting is derived for the most part from the
Union’s bargaining notes (G.C. Exh. 47) for, as noted, Respon-
dent’s “official” notes, do not include notes for November 6
(C.P. Exh. 5), and while the “Morrow” notes do, they are not,
as found above, reliable. Mitchell informed McHugh at the
start of meeting that Respondent had planned to make a deci-
sion to close over the weekend, but put off its decision to see if
the Union would present it with a counterproposal in line with
the “bullet points” proposal. Respondent’s intent, according to
Mitchell, was to close Northumberland and move to Carters-
ville, and that unless the Union was ready to offer counterpro-
posals, they should move on to “effects” bargaining. McHugh
responded that he was prepared to respond and thereafter went
down the list of “bullet points” pointing out which were accept-
able and which the Union could accept with modifications, and
rejecting those inconsistent with the prestrike interim agree-
ments reached by the parties. On economic concessions sought
by Respondent in its “bullet points” proposal, including a “20%
across-the-board pay cut with a freeze on wages for the life of
the contract,” McHugh expressed a willingness to grant the
concessions if the Respondent would agree to open its books to
justify the reductions sought.
After McHugh had responded to Respondent’s proposal,
Mitchell complained that McHugh had not presented any con-
crete proposals of his own and insisted the Union needed to
articulate a specific proposal for the Company to consider. He
also declined to open Respondent’s books for inspection claim-
ing the Respondent was not pleading poverty. Despite his
above comments, Mitchell left the door open for further discus-
sions when after listening to the counterproposals he told
McHugh that he had “given us a lot to think about” and was
entitled to a response, and that while he was not prepared to
respond to anything at that point in time, he promised to study
the Union’s counterproposals and provide McHugh with a re-
sponse at some future date (Tr. 658, 674; R. Exh. 28).
After advising McHugh that he was not prepared to respond
to the Union’s counterproposals, Mitchell suggested they make
use of the remaining time allotted that day for negotiation by
turning to effects bargaining, which McHugh agreed to do.
Despite requesting “effects” bargaining, Mitchell admitted he
had no proposal to offer and was instead expecting one from
the Union. Following a caucus, McHugh stated he needed
additional information on employee entitlements under the
pension plan in order to prepare “effects” bargaining proposals.
When McHugh asked what Respondent intended to do with the
pension plan, Mitchell indicated he was not prepared to answer
that particular question. Although McHugh had not developed
any “effects” proposal, he did provide Mitchell with items he
would like included in the employees’ severance package. The
meeting, which lasted only 2½-hours (G.C. Exh. 47; R. Exh.
28), ended with Mitchell stating the Company would review
and get back to the Union on its counterproposals. The “Mor-
row” notes indicate that it was Mitchell who ended the meeting
by telling McHugh, “Bob, I think we should call it a day” and
DORSEY TRAILERS, INC. 849
that he “did not have anything to say but we would be in touch”
(R. Exh. 28, 21–22).
Although no specific date was set for the next meeting,
Mitchell’s own testimony along with the “Morrow” notes,
make clear that the parties expected to meet again. Thus,
Mitchell testified that at the end of the meeting, he and
McHugh discussed dates for the next meeting and that, while
no actual date was set, both agreed to correspond with each
other after checking their respective calendars to see when they
could meet again (Tr. 658). The “Morrow” notes likewise re-
flect that Mitchell asked McHugh, “We need to decide when
we are going to get together next.” Although Mitchell told
McHugh he might not be present at the next bargaining session,
his reference to another meeting, e.g., “the next time there is a
bargaining session,” provides irrefutable evidence that Mitchell
anticipated holding further meetings.
8. The post-November 6 events
By letter dated November 9, Mitchell notified McHugh that
the Union’s counterproposals had been carefully considered
and that while some were found acceptable, others were not.
The letter, however, did not specify which of the Union’s pro-
posals the Respondent found agreeable, and which it did not.
Mitchell went on to say that Respondent simply had no more
time to spend in “protracted negotiations on these issues,” and
that the “Company’s decision to close Northumberland must
now be considered final.” As to when the closing would occur,
Mitchell advised that it “may be within a period as short as a
few weeks” and that the Union would be notified of the exact
date of closure. Mitchell further presented McHugh with cer-
tain “effects” bargaining proposals. On receiving no response,
Mitchell sent McHugh another letter soliciting a reply to his
“effects” proposal. On November 20, Morrow forwarded to the
Union the retirement information requested by the latter at the
November 6 meeting (Jt. Exh.2). The Northumberland facility
was thereafter closed, although the record does not make clear
exactly when this occurred. The Respondent on brief proffers a
stipulation that the closure and termination of all unit employ-
ees occurred on December 29. While I find that the facility did
close, I make no finding on exactly when that event occurred
and leave that question to be resolved at the compliance stage
of the proceeding.
C. Discussion and Findings
1. Interference with employee rights
a. Brian Wheary-Todd Duttry incident
Brian Wheary was employed by Respondent for a little over
2 years prior to the hearing, and was supervised by Todd Dut-
try. He testified to having a conversation with Duttry a few
months before the strike regarding a grievance he had filed over
having been reassigned from his painter position to the position
of laborer, and having to perform such chores as cleaning trail-
ers, screwing down floors, etc. Wheary claims that during this
conversation, Duttry asked him about the grievance and in-
structed him to bring any future grievances to him first for dis-
cussion before going to the Union, and that Duttry would de-
cide if the matter was “suitable enough” for Wheary to take to
the Union. Duttry, Wheary further claims, told him he was not
permitted to talk to the Union unless Duttry first gave him per-
mission, and that if he wanted to talk to the Union he would
have to do so before or after work (Tr. 452; 459).
Duttry admits having a conversation with Wheary involving
the former’s leaving his work station to see a shop steward.23
He testified that Wheary had “more or less” left his work area
for “a period of time” and when he returned, he simply told
Wheary that “if he wanted to go to a shop steward or something
like that, that he was to leave [sic] me know first” and “we
would schedule a time or whatever for him to go to the shop
steward.” Duttry claims that “was pretty much the end of the
conversation.” He also testified that his particular practice
regarding employees leaving their work station was that em-
ployees “should leave [sic] me know prior to leaving the work
area for any amount of time, considerable amount of time.” It
is fairly apparent, and the Respondent does not claim otherwise,
that there was no written rule requiring employees to seek per-
mission from or to consult with their supervisor before leaving
their work station to meet with a union steward. In this regard,
Duttry testified only that there was an unwritten rule at the
plant that employees should inform him, but simply as a matter
of courtesy, when they expected to be gone from their work
area for a “considerable amount of time,” and that while em-
ployees often failed to do so they were never disciplined for it
(Tr. 479, 482). No explanation was proffered as to what consti-
tuted a “considerable amount of time.”
As between Wheary and Duttry, I credit the former. While
Wheary had difficulty recalling exactly when the conversation
occurred, given the passage of time his failure to do so was not
particularly unusual and indeed understandable. Duttry appar-
ently suffered from the same infirmity, for his recollection was
that the conversation occurred sometime in the spring prior to
the strike. Despite an occasional rambling, which I took as a
simple case of nerves associated with testifying, Wheary im-
pressed me as being more reliable than Duttry, and moreover
provided greater detail on this incident than did Duttry. From a
demeanor standpoint, I found Wheary to be the more credible
of the two, testifying, in my view, in a straightforward and
honest manner. By contrast, Duttry seemed less sure of himself
and was at times vague, as when he testified that Wheary had
“more or less” left his work station for some unspecified period
of time. There were other problem areas in his testimony
which cast doubt on his version of the above incident. His
claim, for example, that Gordy never discussed the status of the
negotiations during weekly meetings with salaried employees
was contradicted by Gordy himself, who readily admitted that
such discussions occurred often, and by Keith Bingaman, a
former supervisor, who testified he heard Gordy engage in such
discussions during supervisory meetings (Tr. 481; 506, 124).
Having credited Wheary, I find that Duttry directed Wheary to
bring any grievance to him so that he could make the determi-
nation whether it should be brought to the Union, and further
instructed Wheary not to talk to the Union without his permis-
sion, or else to do so only before or after work.24
Requiring an employee to bring a potential grievance to a
supervisor for his or her review and approval amounts to a clear
interference with the employee’s Section 7 right of access to his

23 The Respondent claims in its posthearing brief that Gordy “alerted
Duttry’s attention to Wheary’s absence” from his work station (R. Br.
50). Duttry makes no mention of this in his testimony, and a search of
the record failed to reveal any support for the Respondent’s claim.
24 Although the General Counsel claims that Duttry did not deny
Wheary’s assertions, Duttry’s claim that his version of what was dis-
cussed is pretty much all that was said is tantamount to a denial of
Wheary’s claims.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 850
or her chosen representative, and has a chilling and coercive
effect as employees would understandably be reluctant to dis-
cuss with a supervisor any problems they may have with man-
agement or supervision in general. Southern California Gas
Co., 251 NLRB 922 (1980). Duttry’s directive to Wheary is
therefore found to be violative of Section 8(a)(1) of the Act.
Likewise, Duttry’s requirement that Wheary obtain permission
from him before talking to the Union, or to talk to the Union
before or after work also violates Section 8(a)(1). The Respon-
dent, as noted, does not assert, nor has it shown, that it had a
rule or policy prohibiting contact between employees and the
Union during normal working hours. Indeed, Respondent’s
only defense to this particular allegation is that Duttry should
be credited over Wheary, a claim I have rejected.
b. Ed Woodland-Barry Endy incident
Ed Woodland worked as an assembler for Respondent from
1991 to June 1995. He testified that in early 1995, he requested
of his supervisor, Barry Endy, that assemblers be rotated every
so often because while he and other employees, such as Richard
Van Buskirk, spent most of their work hours doing very strenu-
ous work, other assemblers were performing lighter duties.
Endy, according Woodland, became upset and informed Wood-
land he had never before had to rotate employees. Woodland
then filed a grievance which he claims angered Endy so that the
latter threw a broom in the direction where he and others were
busy working. Woodland proceeded to file another grievance
with Attinger over this incident. A few days later, according to
Woodland, Endy told him and Van Buskirk, “If you have any
more problems, you don’t have to go to the Union. You can
come to me, that’s what I want you to do. You don’t have to go
running to the Union every time you have a problem. We can
handle this” (Tr. 155).
Predictably, Endy had a different version of events. He testi-
fied that in June, he noticed Woodland and Van Buskirk talking
to Attinger, that a short while later Attinger left, and that soon
thereafter Larry Arnold, Endy’s superior, told him Attinger had
spoken with Gordy about Woodland and Van Buskirk wanting
to rotate jobs. Endy claims he simply stated, “That’s fine,” and
then told Woodland, Van Buskirk, and two other members of
the assembler team they could rotate jobs or do whatever they
wanted so long as the job got done. Endy concedes, however,
that soon thereafter, as Woodland and Van Buskirk were head-
ing towards a new trailer project, he told Woodland, “What you
need to do is come to me if you have a problem. If you don’t
have a problem, that’s fine, but if you have a problem, I don’t
know you have a problem unless you come and talk to me
about it, and then we’ll go from there.” He further denied ever
throwing a broom at any employee.
Endy, like Duttry above, stated he was merely seeking to
have employees grant him the courtesy of bringing their “prob-
lems” to him first, and that his intent was solely to instill in
employees a sense of confidence that he could help them out. I
credit Woodland’s version of the incident and find that Endy
was seeking to circumvent the Union by having Woodland and
Van Buskirk bring their grievances to him rather than the Un-
ion, and promising implicitly to resolve them. In so doing, the
Respondent, I find, further violated Section 8(a)(1) of the Act.
c. Threats by Supervisor Keith Reader
The complaint alleges that admitted 2(11) Supervisor Keith
Reader: (1) threatened employees with plant closure if the par-
ties were unable to reach agreement on a successor contract; (2)
created an impression of surveillance by telling an employee he
knew what the employee had said at a union meeting because
he had people at the meeting who reported to him, and threat-
ened the employee with unspecified reprisals because of his
union sympathies; and (3) threatened that Respondent would
close the plant if employees voted to strike (G.C. Exh. 1[r],
pars. 6 a–c).
In support of the above allegations, the General Counsel
called employees Theresa Goguts, Yvette Derr, and Henry
Maneval. Goguts testified that in late February or early March,
Reader told her, “Terri, Marks will close it down, she has no
time to waste on you people negotiating a contract” (Tr. 440).
Derr testified that on the last day of work before the strike, as
she was putting her tools away, Reader approached her and
said, “If you guys go out on strike, you won’t be coming back
to work.” Derr claims she agreed with Reader regarding the
likelihood of returning to work. As noted earlier, Derr went out
on strike but returned to work on August 28. She claims
Reader mentioned to her during the first 3 days back to work
that if more people did not cross the picket line, there wouldn’t
be any jobs, and stated at one point that Respondent had either
purchased or was in the process of purchasing a plant in Geor-
gia (Tr. 378–380).
Maneval testified that he attended one of the union meetings
during which McHugh asked employees if they had overheard
any comments about the closing of the plant, and that he raised
his hand indicating he had. Soon thereafter, Reader told Mane-
val, “I know what you said at that Union meeting, I have people
there, I know what’s going on, don’t try to cross me” (Tr. 401).
Maneval further testified that sometime in February, as he,
Derr, and another employee, Kelly Shade, were putting away
their tools and engaged in small talk, Reader approached and
told them, “Youse people vote to go out on strike, Marilyn
[Marks] said she will close the plant down, and that’s not a
threat, it’s a promise, but you didn’t hear it from me” (Tr. 399).
Reader was called as witness by the General Counsel and,
while also on Respondent’s list of witnesses, was not recalled
by the latter during presentation of its case-in-chief to refute or
challenge the statements attributed to him by Goguts, Derr, and
Maneval, all of whom testified after Reader had done so.25 The
Respondent did elicit from Reader a conclusory denial of com-
plaint paragraph 6(b), the allegation pertaining to Maneval,
before the General Counsel had even presented evidence in
support of the allegation. Thus, without knowing who or what
the General Counsel would produce in support of paragraph
6(b), the Respondent got Reader to generally deny having ever
told an employee that he knew of the employee’s attendance at
a union meeting because he had people at the meeting who
reported to him on the employee (Tr. 144). Apparently satis-

25 Following questioning by the General Counsel and the Union, the
Respondent cross-examined Reader and, following such examination,
was allowed without objection to question Reader on other matters not
covered in his direct examination. Respondent’s counsel indicated that
while he might recall Reader to testify, he did not want to unnecessarily
interrupt Reader’s employment by recalling him during the Respon-
dent’s presentation of its case. Following his testimony, Reader was
informed that he was subject to being recalled by Respondent’s coun-
sel. Respondent’s counsel advised Reader that they would be willing to
accommodate any flexibility in his schedule, but that it might not be
necessary. In fact, the Respondent never recalled Reader to specifically
refute any of the above testimony elicited by the General Counsel fol-
lowing Reader’s testimony.
DORSEY TRAILERS, INC. 851
fied that Reader’s general denial would carry the day, the Re-
spondent chose not to recall him to specifically refute Mane-
val’s subsequent and more specific testimony given in support
of paragraph 6(b).
Reader’s conclusory denial of the specific complaint allega-
tion appears totally contrived and is wholly unbelievable.
Thus, although he could not have known the facts underlying
the allegation that he threatened an employee with “unspecified
reprisals” because of the employee’s union activity, Reader
somewhat incredibly claimed he knew what the allegation was
all about, and proceeded to provide an explanation for the al-
leged conduct. His testimony in this regard is rejected as too
conclusory to be entitled to any weight. Hargis Mine Supply,
Inc., 225 NLRB 660, 663 (1976).
In summary, I credit the uncontroverted accounts of Goguts,
Derr, and Maneval as to what Reader told them. As to the le-
gality of Reader’s remarks, under NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969), statements about plant closings and job
loss, such as those directed at the above employees by Reader,
are deemed to be threats if the predictions are not carefully
phrased on the basis of objective fact conveying the employer’s
belief as to demonstrably probable consequences beyond its
control. Mediplex of Danbury, 314 NLRB 470, 471 (1994).
Reader’s comments were obviously not couched in such terms.
The Respondent, however, contends that Reader was a low-
level supervisor who could not have been speaking on its behalf
when he made his isolated remarks. It further argues that the
effect of Reader’s remarks on employees was de minimis. I
disagree. Reader’s own testimony establishes that he was act-
ing at the behest of upper management when he made his
threatening remarks. Thus, he testified that he held weekly
meetings with the 60–65 employees under his supervision and
that during those meetings he told employees that the plant
would close if they went on strike. He explained that he made
the statements because at a management meeting held in Febru-
ary, Gordy told supervisors that “if [employees] go on strike,
the place will close and I don’t care if that goes on the floor,”
implicitly encouraging supervisors to disseminate his plant
closing message to rank-and-file employees. Reader’s testi-
mony as to what Gordy told supervisors was corroborated by
Supervisor Keith Bingaman, who also recalled Gordy mention-
ing at one such management meeting that if employees went on
strike, the plant would close, and instructing supervisors to
make sure his message got out to employees on the work floor
(Tr. 124). He further testified that he conveyed this message to
employees in response to their questions.
Gordy was evasive in his attempt to refute the above testi-
mony that he told supervisors the plant would close if employ-
ees struck. Asked by Respondent’s counsel if he ever made
such remarks, Gordy responded, “Not as far as directly to any-
one. I talked to them in generalities as we have discussed about
both, you know, talking about the strikes, talking about the
closing, but you know, each time, again, my direction has been
to that group you know, leave that to the negotiating team and
that you can’t make any threats to anyone.” Gordy admitted he
may have told supervisors he did not object if certain things got
out to the floor, but denied ever instructing them to tell em-
ployees that the plant would close if they went out on strike (Tr.
507). I reject Gordy’s denial as evasive and purely self-
serving. He did not outrightly deny making the remark that the
plant would close if employees struck, and simply danced
around the question by suggesting he never made it “directly to
anyone.” This, of course, is what both Reader and Bingaman
claim, to wit, that Gordy made the remark to a group of super-
visors and inferentially not to anyone in particular. Moreover,
his denial about directing supervisors to take his plant closing
message to employees is directly contradicted by Respondent’s
own Supervisors Bingaman and Reader, whose testimony
constitute admissions against interest and entitled to greater
weight over Gordy’s self-serving denials.
In sum, it is patently clear that Reader was acting on behalf
of Plant Manager Gordy, and speaking for Respondent, when
he threatened Goguts, Derr, and Maneval with plant closure and
unspecified reprisals. Moreover, by his admission, Reader did
not limit his plant closing remarks to just these three individu-
als but, as noted, directed his remarks to a gathering of some
60–65 employees. In these circumstances, his threats were
neither isolated nor de minimis. Respondent’s further sugges-
tion, based on Reader’s testimony, that the latter’s remarks
were merely expressions of his own personal opinion is clearly
without merit. Thus, despite claiming he made such a dis-
claimer to the employees, neither Goguts, Derr, nor Maneval
testified to being told by Reader that he was not speaking on
behalf of management and was only expressing his own per-
sonal views. Although Derr did mention that she believed
Reader may have been expressing his own views, her thoughts
in this regard were not based on anything Reader said to her,
for she went on to admit that she did not know for sure if
Reader was conveying his own views or expressing an official
management position that the plant would close if employees
went on strike (Tr. 388). In any event, the fact that Derr may
have believed Reader was simply stating his opinion does not
render the latter’s plant closing threats any less coercive, for in
determining if such statements constitute interference, restraint,
or coercion, the Board applies the objective standard of whether
the remark would reasonably tend to interfere with the free
exercise of employee rights, and does not look at the motivation
behind the remark, or on the success or failure of the such coer-
cion. Joy Recovery Technology Corp., 320 NLRB 356, 365
(1995); Miami Systems Corp., 320 NLRB 71 fn. 4 (1995).
In light of the all of the above, I find that Reader, acting on
behalf of the Respondent, violated Section 8(a)(1) of the Act by
telling Goguts that Marks would close the plant because she has
no time to waste negotiating an agreement, telling Derr that if
she and others went out on strike they would not be returning to
work, by creating the impression that Maneval’s union activity
was being kept under surveillance and threatening him with
unspecified reprisals, and by telling Maneval and other em-
ployees that Marks would close the plant if they struck.
d. Endy’s threats to Maneval and Goguts
Maneval testified that sometime in February, he arrived a lit-
tle late to work after returning from the Geisinger Medical Cen-
ter with his wife, that he then went into the Respondent’s rest-
room facility, and that soon thereafter Endy entered the rest-
room and stated to him, “You know, if you vote to go out on
strike, she’s going to close this place down.” Maneval claims
he simply laughed and paid no mind to the remark believing
this was simply a ploy by the Respondent to scare the work
force (Tr. 400; 408). Endy, as noted, testified in this proceed-
ing, and while questioned on other matters was not asked to
confirm or deny Maneval’s assertion in this regard. Accord-
ingly, Maneval’s claim in this regard is undisputed and is found
to be credible.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 852
Goguts likewise testified that around the same time Reader
threatened her with plant closure, Endy stated to her, “What’s
the matter with you, can’t you see what they’re offering you is
good, you are going to make us all lose our jobs” (Tr. 440).
She testified that these types of remarks were repeatedly being
made.
Although Endy’s above remarks to Maneval and Goguts
were not alleged as violations in the consolidated complaint, “it
is well-settled the Board may find and remedy a violation even
in the absence of a specified allegation in the complaint if the
issue is closely connected to the subject matter of the complaint
and has been fully litigated.” Hi-Tech Cable Corp., 318 NLRB
280 (1995), quoting from Permament United Sales, 296 NLRB
333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). As found
above, threats of plant closure and job loss similar to those
directed at Maneval and Goguts by Endy were also made by
Reader towards those two employees, as well as to employee
Derr. Further, while fully aware of Maneval’s above assertion
regarding Endy, the Respondent did not attempt to elicit a de-
nial from Endy, opting instead to address only those statements
attributed to Endy by Woodland and Goguts. Finally, the Re-
spondent in its posthearing brief (p. 62) claimed that Endy’s
remark was not unlawful on grounds that Maneval did not feel
coerced by any remark Endy may have made, and did not raise
the lack of a complaint allegation as a defense. In these cir-
cumstances, I find that these issues are closely related to the
subject matter of the complaint and have been fully litigated.
Hi-Tech Cable, supra. I further find that Endy’s remark to
Maneval amounted to a threat of plant closure and violated
Section 8(a)(1) of the Act. That Maneval may not have person-
ally felt threatened by Endy’s plant closing remark is of no
consequence for, as previously stated, the determination of
whether such a remark is unlawful does not depend on the suc-
cessful effect of the coercion. Miami Systems Corp., supra; MK
Railway, supra.
e. Derr’s withdrawal from the Union
On August 28, Derr, as previously noted, abandoned the
strike and returned to work. The record reflects that about 1
week prior to August 28, Derr had become interested in return-
ing to work and, not knowing how to go about doing so, asked
Gordy for advice. Gordy was uncertain of what she had to do,
and stated he would check with the corporate attorneys and get
back to her. A day or two later, Gordy called her back and said
she would have to resign before crossing the picket line and
returning to work. Derr apparently told Gordy she did not
know how to resign, at which point Gordy said he would have
his attorneys prepare a letter of resignation for her, that she
would then have to sign the letter and send copies to Attinger
and McHugh (Tr. 377). Derr testified that Gordy told her it
was strictly her decision to make, and made no effort to en-
courage or discourage her from resigning. Derr was in fact
provided with the letter which she signed forwarded to the Un-
ion (G.C. Exh. 14). She recalled having had a conversation
with someone on the subject of union discipline and fines that
could be levied against her by the Union, but was unable to
recall if this was something she had discussed with Gordy,
although she expressly denied that Gordy made mention of this
during her inquiry about resigning from the Union. Derr claims
that she was left with the impression when she solicited help
from Gordy that “the only legal way to protect everybody, my-
self and the company, the only legal way that I could come
back to work was by resignation” (Tr. 382).
Gordy agrees that Derr called him to inquire about resigning
from the Union. He claims Derr stated she had been against the
strike from the start, that she was beginning to hurt financially,
and needed to return to work. Derr purportedly expressed to
him concerns she had about threats, intimidation, and physical
harm that might come to her if she were to return to work.
Gordy claims he informed Derr that the Union had a right to
discipline its members, and that if she crossed the picket line
while still a union member, she was subject to union discipline.
He then agreed to check with Respondent’s attorneys to see
what remedies might be available to her, but advised her the
decision was hers to make and that he could not guarantee any-
thing. He admits that company attorneys prepared the letter of
resignation for Derr because she did not know exactly how to
resign (Tr. 76–77).
While not alleged as a violation in the complaint, the General
Counsel nevertheless contends that Gordy’s conduct in helping
Derr resign from the Union amounted to interference with
Derr’s Section 7 rights and violated Section 8(a)(1) of the Act.
I disagree. It is well settled that an employer may provide em-
ployees with information on how to resign or withdraw from a
union “as long as the employer makes no attempt to ascertain
whether employees will avail themselves of this right nor offers
assistance, or otherwise creates a situation where employees
would tend to feel peril in refraining from such revocation.”
Manhattan Hospital, 280 NLRB 113, 114 (1986), quoting from
R. L. White, 262 NLRB 575, 576 (1982). Here, it was Derr
who approached Gordy and asked for information on how to
resign and, as Derr readily admits, Gordy at all times remained
neutral neither encouraging or discouraging her to resign. The
fact that the resignation letter was prepared by Respondent’s
does not, without more, render Respondent’s conduct unlawful.
Mosher Steel Co., 220 NLRB 336, 337 (1975); also see Peoples
Gas System, 275 NLRB 505, 507–508 (1985). On these facts, I
find no basis for concluding that the assistance provided to Derr
by Gordy violated Section 8(a)(1) of the Act.
2. The unilateral change in attendance policy
The complaint alleges that Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally implementing a new
attendance policy on February 1. The Respondent does not
dispute, rightfully so in my view, that the attendance policy is a
mandatory subject of bargaining,26 and concedes it did not bar-
gain with the Union regarding the change (G.C. Exh. 1[t]; R.
Br. 42). It defends its actions, however, by claiming it was
authorized under the management rights clause and by past
practice to make such unilateral changes in its employee work
rules. Essentially, the Respondent’s argument boils down to a
claim that the Union waived its right to bargain over the
changes made in the attendance policy. I disagree.

26 Mandatory bargaining subjects are those encompassed in the
phrase “wages, hours, and other terms and conditions of employment”
as set forth in Sec. 8(d) of the Act. An employer’s attendance policy
has long been held to be mandatory subject of bargaining. Pirelli Ca-
ble Corp., 323 NLRB 1009 (1997); Electro-Voice, Inc., 320 NLRB
1094, 1095 (1996); Treanor Moving & Storage Co., 311 NLRB 371,
386 (1993); Great Western Produce, 299 NLRB 1004 (1990); Ciba-
Geigy Pharmaceutical Division, 264 NLRB 1013, 1016 (1982). A
unilateral change by an employer affecting such a mandatory term and
condition of employment is normally regarded as per se refusal to bar-
gain. Illiana Transit Warehouse Corp., 323 NLRB 111 (1997).
DORSEY TRAILERS, INC. 853
Generally speaking, national labor policy disfavors the
waiver of statutory rights by unions. Resorts International Ho-
tel Casino v. NLRB, 996 F.2d 1553, 1559 (3d Cir. 1993). Thus,
a waiver will not be found unless an employer can show that
the union “clearly and unmistakably” waived its right to bar-
gain over a particular work rule, such as the attendance policy
in this case. Metropolitan Edison Co. v. NLRB, 460 U.S. 693,
608 (1983). Nor will one be lightly inferred from a general
contractual provision. Id. at 608. “Management-rights clauses
that are couched in general terms and that make no reference to
any particular subject area will not be construed as waivers of
statutory bargaining rights.” KIRO, Inc., 317 NLRB 1325,
1327 (1995); also AK Steel Corp., 324 NLRB 173 (1997),
Johnson-Bateman Co., 295 NLRB 180, 185 (1989). Rather,
any such waiver must be “explicitly stated” in the contract. See
Equitable Gas Co., 303 NLRB 923, 929 (1991; referencing
Metropolitan Edison Co. v. NLRB, supra. A clear and unmis-
takable waiver may also be implied from the parties’ past prac-
tice or bargaining history. However, the employer must show
that the matter at issue was fully discussed and consciously
explored during negotiations and that the union consciously
yielded or clearly and unmistakably waived its interest in the
matter. NLRB v. New York Telephone Co., 930 F.2d 1009,
1011 (2d Cir. 1991), enfg. 299 NLRB 351 (1990); Resorts In-
ternational Hotel Casino v. NLRB, supra.
The purported waiver language relied on by Respondent,
contained in section 1 of the “Management Rights” clause of
the parties’ agreement, states that “the Company has the exclu-
sive right to manage the plant and its business, and to exercise
the customary functions of management in all respects.” Sec-
tion 2 of the same clause authorizes the Respondent to make
“such fair and reasonable rule . . . as it may from time to time
deem best for the purposes of maintaining order, safety, and/or
effective operation of Company plant.” Clearly, the overly
broad language of section 1 makes no reference to the atten-
dance policy, or to any other company rule for that matter, and
consequently lacks the required specificity to support a finding
of waiver by the Union of its right to bargain over the February
1, changes in the attendance policy. See, Kansas National
Education Assn., 275 NLRB 638 (1985), where the Board
found that language strikingly similar to the section 1 language
relied on here by the Respondent did not constitute a waiver.
Nor was Respondent justified in inferring such a waiver from
the “such fair and reasonable rule” language of section 2, for
the applicable standard is not whether the Respondent believes
a waiver exists, but rather whether such an interpretation is
supported by “clear and unmistakable language.” Elliott Tur-
bomachinery Co., 320 NLRB 141 (1995). The section 2 lan-
guage here is not unlike the management-rights clause in John-
son-Bateman, supra, which similarly authorized the employer
therein to “unilaterally issue, enforce, and change company
rules.” The Board in Johnson-Bateman declined to find a
waiver because the management-rights clause was “couched in
the most general of terms and makes no reference to any par-
ticular subject area, much less a specific reference to
drug/alcohol testing,” the matter over which the employer was
claiming waiver. Id. at 185. Accordingly, I find that the man-
agement-rights clause in the parties’ agreement does not consti-
tute a waiver of the Union’s right to bargain over the attendance
policy.
The Respondent, as noted, also relies on past practice to jus-
tify its unilateral conduct, claiming in this regard that it had
made a similar unilateral change in the attendance policy at its
Elba, Alabama facility, which unilateral action had been upheld
by an arbitrator who ruled the Respondent was authorized to
make the change under the management-rights clause of the
collective-bargaining agreement covering the Elba employees.
The Respondent’s argument is disingenuous at best, for what-
ever past practice may have been established at the Elba facility
between it and the International Association of Machinists
(IAM), which represents employees there and whose labor
agreement presumably contains different terms and conditions
of employment, it clearly has no bearing on or application to
the employees at the Northumberland facility or to its bargain-
ing relationship with the Union herein.27 Thus, any pattern or
practice that might have developed between Respondent and
the IAM during the course of their bargaining relationship is
neither binding nor controlling on the Union or the Northum-
berland employees it represents. General Electric Co., 296
NLRB 844 (1990). Thus, even accepting as true Respondent’s
claim that it has a past practice of making such unilateral
changes in work rules at the Elba facility, it was not at liberty to
implement similar changes in employee work rules at North-
umberland unless the matter at issue, the new attendance pol-
icy, had been fully discussed and consciously explored between
the Respondent and the Union, and the latter consciously
yielded or clearly and unmistakably waived its interest in the
matter. Johnson-Bateman, supra. No such claim or showing
has been made here by the Respondent. Accordingly, I find
that the Union at no time either through express language in the
contract or by implication, waived its right to bargain over the
change in attendance policy implemented on February 1, and
conclude that the Respondent’s unilateral decision to do so
violated Section 8(a)(5) and (1) of the Act.
3. The information request
The complaint further alleges that the Respondent’s refusal
to comply with the Union’s request for all occurrences issued to
employees prior to 1995, and to provide it with information on
where such information is maintained, also violated Section
8(a)(5) and (1). I find merit in the allegation. It is well settled
that an employer, on request, must provide a union with infor-
mation that is relevant to its ability to carry out its statutory
duty of representing employees, including information relevant
to contract administration and negotiations. Shoppers Food
Warehouse, 315 NLRB 258, 259 (1994). Such information is
deemed to be presumptively relevant when, as here, it pertains
to unit employees represented by the Union.
While not disputing the relevancy of the information sought
by the Union (G.C. Exh. 1[t], par. X), the Respondent neverthe-
less contends that the Union’s request was too vague and am-
biguous for it to properly respond, and that in any event it made
a good-faith effort to do so by permitting Bower and Attinger to

27 While admitting that its contract with the IAM and its contract
with the Union herein are not identical, the Respondent nevertheless
claims that the “substance” of the management-rights clause in both
agreements are “substantially the same” (R. Br. 43, fn. 19). Sawyer
testified that the clauses are “very similar, particularly the wording
regarding making fair and reasonable rules and regulations” (Tr. 586).
The Respondent did not produce the Elba contract for comparison
purposes, despite attorney Mitchell’s representation at the hearing that
he had a copy of the agreement with him and intended to introduce it
into evidence. The failure to do so leads me to doubt Sawyer’s testi-
mony regarding the similarity of the management-rights clauses in both
agreements.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 854
search employee personnel files for the information (R. Br. 43–
46). Neither contention is true.
The record evidence convinces me that the Union’s request
for all “occurrences” issued to unit employees before 1995 was
neither vague nor ambiguous, and that Gordy, to whom the
request was sent, fully understood what the Union was seeking.
Thus, while placed under a general heading of “Discipline Pro-
cess,” the request, on its face, asks for nothing more than the
“number of occurrences” issued to employees under the old
attendance policy and “the date of each employee’s last occur-
rence.” The Respondent obviously knew what an occurrence
was, and how it impacted on the disciplinary process, for the
concept is clearly spelled out in its old attendance policy (R.
Exh. 1). Moreover, it is fairly apparent from their testimony
that both Gordy and Sawyer fully understood what an occur-
rence was (Tr. 511; 601).
Gordy nevertheless testified that he understood the Union’s
December 21 letter to be a request for “any discipline that had
been issued in the past for not only absenteeism but any type of
discipline that had been issued” to unit employees. How Gordy
could have read so much into the request is beyond any reason-
able comprehension, for nothing in the wording of the request
for occurrences can be read to suggest, even remotely, that the
Union was asking for all disciplinary action taken against unit
employees for whatever reason. The old attendance policy,
with which Gordy would have been familiar, draws a clear
distinction between an “occurrence” and the various discipli-
nary measures, e.g., verbal/written warning, suspension, dis-
charge, that can result through an employee’s accumulation of
occurrences. Gordy does not contend that he was unaware of
this distinction. Thus, when the Union on December 21, 1994,
asked Gordy to provide it with “the current number of occur-
rences” that each unit employee had on file under the existing
attendance policy, along with the date of each employee’s last
occurrence, Gordy, I am convinced was not confused by the
request. But even if I were to believe that Gordy was somehow
confused by the December 21 request, all he had to do was ask
the Union for some clarification. “An employer may not sim-
ply refuse to comply with an ambiguous and/or overbroad in-
formation request, but must request clarification and/or comply
with the request to the extent it encompasses necessary and
relevant information.” See Keauhou Beach Hotel, 298 NLRB
702 (1990), and cases cited therein. Gordy never bothered to
do so, opting instead to ignore the request for almost 2 months,
forcing the Union to renew its request at the first bargaining
session on February 8.
Gordy testified that he viewed the Union’s second request on
February 8, as he did the initial request, e.g., as a demand for
“any discipline that had been issued in the past for not only
absenteeism but any type of discipline that had been issued”
(Tr. 514). Sawyer’s testimony as to what the Union requested
at the February 8 meeting does not concur with Gordy’s above
description of the request. Rather, Sawyer claims that McHugh
asked for “a chance to look at all attendance sheets and any
disciplinary action that might relate to attendance in the North-
umberland plant,” but could not recall McHugh mentioning the
word, “occurrence” (Tr. 590). However, both Gordy’s and
Sawyer’s account of what McHugh asked for on February 8,
are contradicted by Respondent’s own bargaining notes for that
day showing clearly that McHugh only asked for “attendance
sheets and occurrences” (C.P. Exh. 5, p. 2). The Union’s bar-
gaining notes likewise show McHugh asking for “attendance
and occurrence records,” and at one point clarifying that he
wanted the “record on how many occurrences [were issued to
employees] before the new [attendance] policy took effect,”
because the Union needed the information “for this negotiation
and a grievance” (G.C. Exh. 47, p. 4). Both sets of bargaining
notes therefore reflect McHugh’s February 8 request to be fully
consistent with his December 21, 1994 written request, and lay
bare the obviously false claims by Gordy and Sawyer that
McHugh requested to see disciplinary information on unit em-
ployees. Again, if either Gordy or Sawyer had doubts as to
what the Union was after, it was never made known to
McHugh, for nothing in their testimony or in the bargaining
notes suggests that they asked for any such clarification, lead-
ing me to believe that they fully understood the nature of the
request.
The Respondent suggests that the ambiguity and confusion
of the request was made evident by McHugh’s and Bower’s
purported inability at the hearing to define an “occurrence.” A
review of their testimony reveals that despite efforts by
Mitchell to obfuscate the issue, McHugh and Bower were not
confused and adequately described what an occurrence was and
how it factored into the attendance and disciplinary process (Tr.
225; 332). In fact, Respondent’s reference on page 44 of its
posthearing brief to “disciplinary occurrences” suggests that it
was Respondent’s own counsel, not McHugh or Bower, who
was confused, for the Respondent has suggested, nor is there
any evidence in the record to show, that the Respondent has
such a thing as a “disciplinary occurrence.” Rather, the record
reflects that while employees are issued occurrences, they are
not considered disciplinary until such time as they are accumu-
lated in the manner described in the old attendance policy. But
even if I were to accept, which I do not, Respondent’s assertion
that McHugh and Bower seemed confused about this issue at
the hearing, as found above Gordy and Sawyer clearly were
not, for both understood what an occurrence was and had no
reason to be confused. Further, assuming arguendo that
McHugh may have been confused when he first requested the
information on December 21, 1994, and that he mistakenly
asked for “occurrences” when what he wanted were discipli-
nary records, the Respondent had no way of knowing this for,
as found above, the information request on its face, clearly and
unambiguously, asked for “occurrences,” not disciplinary re-
cords. Thus, the Respondent’s lawful options were twofold:
either (1) comply with the information request by providing the
Union with the requested occurrences, at which time the Union,
if this was not what it was actually seeking, would have so
apprised the Respondent; or (2) confirm any doubts it may have
had regarding the request by asking the Union for clarification.
The Respondent, as noted, did neither, and chose instead a third
and clearly impermissible option of simply ignoring the re-
quest.
The Respondent nevertheless contends that it made a good-
faith effort to comply with the information request by allowing
Attinger and Bower to search employee personnel files for the
requested information. The Respondent’s conduct was any-
thing but good faith, for the evidence makes clear that the Re-
spondent simply sent the union officials on a proverbial “wild
goose chase” as it knew quite well that “occurrences” issued to
employees were not maintained in their personnel files but were
instead kept in a separate file in Winnick’s office. The record
reflects that after examining employee personnel files for 1
week, Attinger and Bower not surprisingly came up empty-
DORSEY TRAILERS, INC. 855
handed, finding none of the pre-1995 occurrences they were
looking for. Attinger claims he discussed his findings, or lack
thereof, with Winnick, and that when he asked Winnick where
the occurrence records were kept, the latter denied knowing
who kept them or where they were kept. Winnick, as noted, did
not testify. Attinger’s testimony therefore stands unrefuted and
is credited.
Testimony by employee Neitz, Winnick’s receptionist,
shows that Winnick lied to Attinger about knowing where oc-
currences were kept. Neitz testified that from 1993 until No-
vember 1995, she was responsible for maintaining employee
attendance records and that prior to February 1995, when the
new attendance policy was put into effect, she recorded em-
ployee occurrences on attendance cards that were stored in a
metal box in Winnick’s office, and that after February 1, em-
ployee absences and occurrences were recorded on individual
sheets of paper, rather than cards, and maintained in a three-
ring looseleaf binder. Prior to the strike, the attendance book
was kept in Winnick’s office, but following the walkout Neitz
kept the book on her desk in the reception area. The Respon-
dent’s admission in its posthearing brief, that the attendance
records were kept in Winnick’s office (R.Br. 44–45), corrobo-
rates Neitz’ account and makes clear that Winnick knew all
along where the employee occurrences were maintained but
chose to lie about it. Respondent’s failure to call Winnick to
dispute the above testimony by Attinger or Neitz warrants an
adverse inference that if called Winnick would not have refuted
their testimony. Frances House, Inc., 322 NLRB 516, 520
(1996); A–1 Portable Toilet Services, 321 NLRB 800, 804
(1996).
In sum, I find that Respondent’s refusal to provide the in-
formation requested on December 21, and again on February 8,
resulted not from any ambiguity in the request but rather from
Respondent’s own unwillingness to comply with the request.
Respondent’s conduct in ignoring the request for almost 2
months, and thereafter sending union officials on what it knew
to be a wild good chase, convinces me that it never intended to
furnish the Union with the information, and that its claim of
being confused by the request is nothing more than a post hoc
attempt at justifying its unlawful conduct. Indeed, Gordy’s
testimony that he did not provide the information because “it
was too voluminous for the company to prepare” serves to un-
dermine Respondent’s argument that the information was not
provided because of the vagueness of the request (Tr. 514).
Further, his admitted refusal to furnish the requested informa-
tion is consistent with McHugh’s claim, which I credit, that
Gordy took the position he did not have to give the Union such
information (Tr. 239). Accordingly, I conclude that Respon-
dent’s failure and refusal to comply with the Union’s December
21, information request violated Section 8(a)(5) and (1) of the
Act, as alleged.
4. The strike
a. Its nature
The General Counsel contends, and the Respondent disputes,
that the strike that began on June 26, and ended on October 16,
was from its inception and at all times thereafter an unfair labor
practice strike. I agree with the General Counsel.
The character of a strike depends on its cause. Thus, a work
stoppage by employees is considered an unfair labor practice
strike if it is motivated, at least in part, by an employer’s unfair
labor practices. C-Line Express, 292 NLRB 638 (1989). Char-
acterization of a strike as such is not dependent on a finding
that the strike would not have occurred but for the commission
of the unfair labor practices. Decker Coal Co., 301 NLRB 729,
746 (1991). Rather, so long as an unfair labor practice has
“anything to do with” causing the strike, it will be considered
an unfair labor practice strike. Child Development Council of
Northeastern Pennsylvania, 316 NLRB 1145 fn. 5 (1995),
quoting NLRB v. Cast Optics Corp., 458 F.2d 398, 407 (3d Cir.
1972), cert. denied 419 U.S. 850 (1972).
As found above, prior to the start of the strike the Respon-
dent committed numerous unfair labor practices that included,
inter alia, the February 1, unilateral change in the attendance
policy, its refusal to comply with the Union’s request for copies
of “occurrences” and location of employee attendance records,
soliciting employees to bring their grievances to supervisors
rather than to the Union, and threatening employees with plant
closure. The minutes of a February 24 union meeting reflect
that the above and other unlawful conduct engaged in by Re-
spondent were discussed by employees as reasons for undertak-
ing the strike if and when the Union deemed such action to be
necessary (G.C. Exh. 48, pp. 15–18). Those notes further re-
veal that the Union was not anxious to strike and had persuaded
employees to continue working under preexisting terms and
conditions. According to the notes, the Union deemed it best to
postpone any job action until the Respondent had committed
sufficient unfair labor practices to justify a walkout on those
grounds. At the June 24 union meeting, the Union decided that
the time had come to strike, and cited the prior unremedied
unfair labor practices discussed at the February 24 meeting, as
well as Respondent’s decision not to continue checking off
union dues, as justification for the strike (G.C. Exh. 48, pp. 39-
40).
Several witnesses testified as to the reason for the strike.
McHugh testified that it was the Union’s intent to have the
strike declared an unfair labor practice strike, and that he cau-
tioned employees against relying on some other reason to
strike. He further testified that Respondent’s subcontracting of
bargaining unit work to Bankhead, its unlawful implementation
of a new attendance policy, its disciplining of union officials
for conducting union business, its practice of reassigning em-
ployees on light duty to other departments, and the numerous
threats to close the Northumberland facility, all were discussed
with and among employees when the decision to strike was
made. While Respondent’s decision to discontinue dues
checkoff was also cited by McHugh as a reason for the strike,
he credibly testified that it was not the determinative factor (Tr.
192–196; 255–263).
Bower and Purcell could not recall all the reasons discussed
at the union meetings, but did recall that the discipline imposed
on Bower for conducting union business, and Respondent’s
change in attendance policy were two of the reasons for the
strike (Tr. 393; 469). Goguts testified that she voted to strike
primarily because of Respondent’s unlawful change in atten-
dance policy, its subcontracting of work to Bankhead, and the
transfer of an employee outside his classification. Maneval
gave as his reason for striking Respondent’s misuse of the
“light duty policy,” and its elimination of the “Dorsey dollars”
program caused by the unilateral change in the attendance pol-
icy. According to Maneval, these and other reasons he could
not readily recall were discussed among employees at the union
meetings and presented as reasons for going on strike (Tr. 404;
445).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 856
The above testimony, none of which was refuted by the Re-
spondent, and the minutes of the union meetings, make clear
that the strike which began on June 26, was motivated, if not
exclusively at least in part, by Respondent’s unfair labor prac-
tices. Remarkably, the Respondent contends that McHugh
somehow orchestrated and manipulated the facts “to have the
strike declared an unfair labor practice strike.” In making this
rather inane argument, the Respondent conveniently ignores the
fact that it was the one, and not McHugh or the Union, who
unilaterally implemented a new attendance policy, who refused
to furnish the Union with requested information, who threat-
ened employees with plant closure, and who unlawfully sub-
contracted unit work to Bankhead. This and other conduct
unilaterally engaged in by the Respondent, without any assis-
tance from or manipulation by McHugh, was what persuaded
employees to walk out. It is the height of absurdity for the
Respondent to argue that it was somehow forced by McHugh or
the Union to engage in the above unlawful practices. I fail to
see how the Union can be blamed for having had sufficient
foresight and being intuitive enough to advise its members
against walking out to protest something other than unfair labor
practices. The Respondent’s claim that it was somehow
“baited” or “entrapped” by the Union into committing unfair
labor practices is simply not supported by the record evidence
and, in my view, so absurd as to warrant no further discussion.
The simple fact is that it was the Respondent who engaged in
the unfair labor practices that provided the Union with the nec-
essary fodder to justifiably declare the walkout an unfair labor
practice strike. I am convinced that but for the Respondent’s
unlawful conduct, the employees would not have risked walk-
ing off the job on June 26. Accordingly, I find that the strike
which began on June 26, and which ended on October 16, when
strikers, through their Union, unconditionally offered to return
to work, was from its inception and unfair labor practice strike.
b. The reinstatement question
It is further alleged that the strikers were unlawfully denied
reinstatement following their unconditional offer to return to
work. The Respondent disputes the claim, and avers that fol-
lowing the offer to return to work, “the Company promptly
terminated all temporary employees and began bringing the
striking members back to work” (R.Br. 65). The Respondent’s
claim is not supported by the record.
It is well settled that unfair labor practice strikers are entitled
to immediate and full reinstatement to their former jobs, or to
substantially equivalent jobs if their original positions are no
longer available, upon their unconditional offer to return to
work. Super Glass Corp., 314 NLRB 596, 598 (1994); citing
Harowe Servo Controls, 250 NLRB 958, 1070 (1980); Capitol
Steel & Iron Co., 317 NLRB 809, 814 (1995). The Board,
however, has found that a 5-day period is a reasonable accom-
modation between the interests of the employees in returning to
work as quickly as possible, and the employer’s need to effec-
tuate that return in an orderly manner. See Beaird Industries,
311 NLRB 768, 771 (1993), citing Drug Packaging Co., 228
NLRB 108, 113 (1977), modified on other grounds 507 F.2d
1340 (8th Cir. 1978). The 5-day period, however, will not ap-
ply where an employer ignores or rejects, or has already re-
jected an unconditional offer to return to work, unduly delays
its response to such an offer, or attaches unlawful conditions to
its offer of reinstatement. Newport News Shipbuilding, 236
NLRB 1637, 1638 (1978), enfd. 602 F.2d 73 (4th Cir. 1979).
Initially, it should be noted that the Respondent did not re-
spond to the Union’s October 16 offer until 3 days later, hardly
what one would consider a “prompt” response, and offered no
explanation at the hearing or in its posthearing brief for the
delay. When it did respond on October 19, its attorney,
Mitchell, advised the Union that Respondent would begin let-
ting the temporary workers go, and recalling strikers, at the
start of the following week, October 23, e.g., 4 days hence.
The record reflects that the Respondent indeed began terminat-
ing its temporary workers and recalling strikers on October 23,
albeit in piecemeal fashion, for rather than terminating all tem-
porary workers at once, it dismissed only three temporary em-
ployees on October 23, two on October 24, and one on October
25. The bulk of its temporary work force, the remaining 41,
were not discharged until October 26. Its recall of strikers, as
noted, was likewise handled in piecemeal fashion, with only 7
strikers recalled on October 23, 3 each on October 24, 25, and
27, and 14 on October 30 (see Jt. Exh. 2, attachment to April
23, 1996 letter from attorney Mitchell to Board Agent Donald
Spooner).
The only explanation proffered by Mitchell during the Octo-
ber 19 meeting for not immediately terminating the temporary
workers and recalling strikers was that under the Worldwide
Labor agreement, the Respondent, in the event of cancellation,
was obligated to compensate temporary workers who had been
employed less than 1 week for a full 40-hour workweek. The
problem with this argument is that Mitchell readily admitted he
did not know how many of the 47 temporary workers on the
payroll as of October 16, had been employed for less than 1
week, and the Respondent, who bears the burden of explaining
the delay in not returning strikers sooner, produced no evidence
to show how many of the temporary workers employed as of
October 16, fit that description. There is, in any event, no ques-
tion that the Respondent did not begin returning strikers until
seven days after they unconditionally offered to do so. As the
Board in Drug Packaging, supra, made clear, administrative
difficulties are not a basis for delay beyond the 5-day period.
Nor was Respondent permitted to reinstate strikers in piecemeal
fashion. Rather, it was obligated to take the employees back as
a group, placing, if necessary, those for whom no work was
available, after dismissing the replacements, on a preferential
hiring list. Orit Corp., 294 NLRB 695, 699 (1989). The Re-
spondent’s entire course of conduct relative to the reinstatement
issue, beginning with its 3-day unexplained delay in responding
to the Union’s October 16, unconditional offer to return to
work, its failure to produce evidence to support its claim that it
could not immediately discharge the temporary workers, its
decision to begin the recall process 7 days after the uncondi-
tional offer to return to work, clearly beyond the 5 days permit-
ted by the Board, and the piecemeal manner in which it rein-
stated strikers, convinces me that Respondent’s actions were
deliberate and retaliatory in nature, intended to delay the strik-
ers’ return as long as possible. In these circumstances, the Re-
spondent was not entitled to delay the recall process for 5 days,
but rather remained obligated to offer the strikers immediate
and full reinstatement on its October 16, receipt of the uncondi-
tional offer to return to work. By failing to do so, the Respon-
dent, I find, violated Section 8(a)(3) and (1) of the Act, as al-
leged.
DORSEY TRAILERS, INC. 857
5. The decision to transfer all bargaining unit work to Carters-
ville and to close the Northumberland plant
1. The 8(a)(5) and (1) allegation
a. Applicability of the Dubuque test and Respondent’s defense
The complaint alleges, and the General Counsel contends,
that the decision to permanently relocate all bargaining unit
work to Cartersville and to close the Northumberland facility
was a mandatory subject of bargaining under Dubuque Packing
Co., 28 and that the Respondent violated Section 8(a)(5) and (1)
of the Act by failing to give the Union prior notice of, and an
opportunity to bargain over, that decision.29 The Respondent
agrees that Dubuque Packing is applicable, and concedes that
the General Counsel has satisfied her initial burden of proof (R.
Br. 6). However, it contends that the decision to relocate unit
work to Cartersville had nothing to do with labor costs, but was
instead motivated by a need to maintain production and to
avoid the “economic suicide” it purportedly faced due to the
strike (R.Br. 8). It further argues that it had decided to move
only the struck work to Cartersville, and that no final decision
on the permanent relocation to Cartersville and the closure of
the Northumberland facility was made until after the parties had
bargained to impasse on November 6. As labor costs were not,
in its view, a factor in its decision, the Respondent avers that
under Dubuque Packing, supra, its relocation and plant closing
decision was not a mandatory subject of bargaining that had to
be negotiated with the Union before being implemented, and
that even it was, the Respondent fully complied with the re-
quirement by bargaining to impasse with the Union on the is-
sue. It takes issue in this regard with the General Counsel’s
claim that the decision was made before the parties resumed

28 303 NLRB 386 (1991), enfd. 1 F.3d 24 (D.C. Cir. 1993). In Du-
buque, the Board established a two-part test for determining when a
relocation of unit work constitutes a mandatory subject of bargaining.
Under that test, the General Counsel bears the initial burden of showing
that the employer’s decision to relocate bargaining unit work was unac-
companied by a basic change in the nature of the employer’s operation.
If the General Counsel succeeds in making such a showing, he will
have established prima facie that the relocation was a mandatory sub-
ject of bargaining. To avoid liability, the employer must then show
through a preponderance of credible evidence that labor costs (direct
and/or indirect) were not a factor in the decision or that even if they
were, the union could not have offered the necessary labor cost conces-
sions that could have changed its decision to relocate. Id at 391.
29 I find no merit to Respondent’s suggestion that the decision to
purchase and relocate work to Cartersville was separate from the deci-
sion to close Northumberland (R. Br. 32). As found above, the Re-
spondent issued its first 60-day WARN notice to Neitz and presumably
other nonunit employees at around the same time it began negotiating
with Taylor for the purchase of the Cartersville facility, e.g., mid-
September. There was no reason for Respondent to issue such notices
unless, of course, it was planning to close Northumberland. Nor do I
believe Respondent would have been planning to close Northumberland
unless it was certain it could continue production elsewhere. The only
other location that was being considered at the time was Cartersville.
Further, the shutdown schedule prepared on or before October 5, shows
that both events were being planned to coincide with each other (G.C.
Exh. 51). Finally, Mitchell statement to the Union that Respondent had
no need for two facilities suggests that Respondent had no intentions of
keeping both facilities opened, and that the opening of the Cartersville
facility meant that the Northumberland plant would close. In light of
the above, I find that the purchase of the Cartersville facility was inexo-
rably linked to the closing of Northumberland and that with the happen-
ing of the former event, the fate of the Northumberland, along with the
jobs of the strikers, was sealed.
negotiations on October 13. The Respondent’s claims are
found to be without merit.
As the Respondent concedes that its relocation to Carters-
ville did not involve a change in the scope or direction of its
operation, it bears the burden under Dubuque Packing of show-
ing that labor costs did not factor into its decision. The Re-
spondent has not done so here. Although I am convinced, for
reasons more fully discussed infra, that Respondent had made
up its mind to relocate to Cartersville and to close the North-
umberland facility long before notifying the Union, and that it
had no intentions of reversing that decision, at all times follow-
ing notification to the Union the Respondent, through Attorney
Mitchell, engaged in the charade of trying to convince the Un-
ion during negotiations that it wanted to remain in Northumber-
land, that its decision to relocate and to close Northumberland
were only tentative, and that it would be willing to remain in
Northumberland if it received serious concessions in wages and
other benefits from the Union.
Thus, beginning with the October 13 bargaining session and
continuing through the last one held on November 6, Mitchell
repeatedly insisted that Northumberland would close unless it
received serious concessions from the Union. The Union’s
October 13 bargaining notes, for example, reveal that Mitchell
told McHugh that the future of Northumberland was in the
Union’s hands, that the Respondent would consider keeping the
plant opened if the Union gave it a reason for doing so, and that
while Respondent presumably had not yet decided what to do,
the decision of whether it was to remain opened was up to the
Union. Mitchell repeated the same theme at the October 19
session, this time with a bit more specificity. The parties’ bar-
gaining notes for that day show Mitchell emphasizing that ab-
sent serious concessions in salary and benefits, and a manda-
tory overtime requirement, the Northumberland facility could
not remain open. Quoting from Respondent’s own notes,
Mitchell stated, “Now it will take an attractive offer, with major
concessions. Any new contract would have to have conces-
sions in: wages, benefits, holidays, and vacations. And of
course, we would need mandatory overtime. We want to run
this plant as profitably as Cartersville” (C.P. Exh. 5, p. 53).
Mitchell continued to drive home this point at the October 26
session, when he advised the Union that it needed “to come up
with a proposal for us to want to stay here,” and again at the
final November 6 meeting by reiterating that the Northumber-
land plant would close unless the Union submitted a counter-
proposal along the lines of the Respondent’s own “bullet
points” proposal which, as noted, called for steep concessions
in, among other things, wages and other employee benefits.
The above evidence makes clear that the Respondent openly
and repeatedly asked for serious labor concessions, e.g., reduc-
tions in wages, holidays, vacations, fringe benefits, overtime,
and other benefits, as the quid pro quo for not relocating to
Cartersville and keeping the Northumberland facility opened.
In view thereof, I find that the Respondent has not sustained its
Dubuque Packing burden of showing that labor costs were not
a factor in its decision to relocate to Cartersville. Owens-
Brockway Plastic Products, 311 NLRB 519, 522 (1993).
The Respondent further contends, on brief, that even if labor
costs are found to have played a role in its relocation decision,
the savings anticipated by the move were such that any “wage
concessions” the Union might have offered would not have
been sufficient to alter the decision (R.Br. 10). Its contention is
without merit for, as found above, at all times following the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 858
October 9 notification to the Union, the Respondent repeatedly
assured the Union that it would reverse its decision to relocate
and to close the Northumberland facility if the Union were to
provide it with serious concessions in wages and other benefits.
Either the Respondent was not being truthful with the Union, a
possibility which given my findings below I find to be the more
likely scenario, or such a reversal was indeed possible with the
proper concessions, rendering specious Respondent’s above
contrary assertion. See Elliott Turbomachinery Co., 320 NLRB
141, 157 (1995), where the Board, inter alia, rejected a post hoc
claim by an employer that labor cost concessions would not
have altered its decision to relocate to another facility because
the employer had sought concessions from the union. Indeed,
the Respondent’s posthearing brief is self-contradictory on this
point, for it readily admits that “the Union was offered the op-
portunity to match, through concessionary bargaining, the fi-
nancial incentives offered by the State of Georgia” (R. Br. 8).
If the Respondent did not believe the Union could offer suffi-
cient concessions to alter its decision to relocate to Cartersville,
why would it have asked for such concessions in the first
place?30
Other factors, however, serve to undermine the Respondent’s
above defense. Thus, while the Respondent claims the Union
could not have offered sufficient “wage concessions” to have
made a difference, it offered no evidence to show that wages
for unit employees at Northumberland were already so low that
the Union could not have garnered sufficient savings in this
area to “approximate, meet, or exceed” the benefits anticipated
by Respondent at Cartersville. Dubuque Packing, supra. “An
employer must offer something more than a self-serving asser-
tion that there was nothing the bargaining agent of its unionized
employees could do to change its mind.” Geiger Ready Mix
Co. of Kansas City, 315 NLRB 1021, 1032 (1994). Moreover,
while Mitchell told the Union that wages and benefits would be
lower at Cartersville than they were at Northumberland, there is
no indication that he ever provided the Union with information
on what those wage rates and benefits would be, or that he
spelled out the specific cost savings anticipated by Respondent
at Cartersville. Without such information, the Union could not
have known what, if any, “wage concessions” unit employees
might have to make in order to “approximate, meet, or exceed”
the Cartersville savings alluded to by Mitchell.
Moreover, even if, as Respondent on brief suggests, the Un-
ion could not have offered sufficient “wage concessions” to
make a difference, there remained the likelihood that the sav-
ings needed to change Respondent’s mind, if indeed that was a
possibility, could have been obtained through reductions in
other employee benefits. See Homes & Narver, 309 NLRB
146, 147 (1992). As the Respondent never provided the Union
with the specific cost savings anticipated from its decision to
relocate to Cartersville, the Union was left in a position of not
knowing what it would take in the way of concessions in wages
and/or other benefits to keep Respondent in Northumberland.
The “bullet points” proposal was obviously not intended to

30 Sawyer, as found above, told McHugh on October 9, that the deci-
sion to move all unit work to Cartersville was irreversible, nothing in
his comments suggests that the reason the decision was irreversible was
because the Union would not have been capable of offering sufficient
labor cost savings to prevent the move. Significantly, Sawyer’s re-
marks about the inevitability of the move conflicts with Respondent’s
assertion that the decision was reversible if only the Union would pro-
vide it with some serious labor cost concessions.
serve that purpose, for it makes no reference to the cost savings
that would result from the move to Cartersville, and served as
nothing more than a blanket request by Respondent for conces-
sions in all areas without regard to whether all “bullet points”
concessions were needed to meet those cost savings. In light of
the above, I find that Respondent could not have known if the
Union was capable of offering sufficient labor cost concessions
to enable it to “approximate, meet, or exceed” the anticipated
Cartersville savings. The Respondent’s bare assertion that the
move to Cartersville would result in savings that the Union
could not possibly meet through “wage concessions” thus falls
far short of what is needed to meet its defense under the second
prong of Dubuque Packing, supra at 392. See also Owens-
Brockway Plastic Products, supra at 525. Accordingly, the
Respondent’s decision to permanently relocate all unit work to
Cartersville and to close Northumberland was at all times a
mandatory subject of bargaining.
b. Respondent’s impasse defense
The Respondent, as noted, claims that even if its decision to
relocate to Cartersville and to close Northumberland is found to
be a mandatory bargaining subject, it fulfilled its bargaining
obligation by bargaining to impasse on that issue, with impasse
being reached on November 6. The Respondent’s claim is
without merit for I am convinced the Respondent presented the
Union with a fait accompli regarding its decision. Alterna-
tively, the Respondent has not shown that the parties were at
impasse on November 6, so that even if it did not present the
Union with a fait accompli, its claim would nevertheless lack
merit.
(1) The Union is presented with a fait accompli
A bargaining impasse occurs when good-faith negotiations
have exhausted the prospects of reaching an agreement. Taft
Broadcasting Co., 163 NLRB 475, 478 (1967). Good-faith
bargaining requires timely notice and meaningful opportunity
to bargain regarding the employer’s proposed change, as no
genuine bargaining can be conducted where the decision has
already been made and implemented. Thus, no impasse is pos-
sible where an employer presents the union with a “fait accom-
pli” as to a matter over which bargaining to impasse is required.
S & I Transportation, 311 NLRB 1388, 1390 fn. 4 (1993). In
determining if a union has been presented with a fait accompli,
the Board looks for objective evidence. Mercy Hospital of
Buffalo, 311 NLRB 869, 873 (1993). There is ample objective
evidence here to support a finding that the decision to relocate
all unit work to Cartersville and to close the Northumberland
facility was predetermined, and well on its way to being im-
plemented, by October 13, when the parties resumed negotia-
tions to bargain over that very issue.
There is no disputing that the decision to buy the Cartersville
facility and to transfer production work to that facility from
Northumberland was made prior the Union being notified on
October 9, and certainly before the parties resumed bargaining
on October 13. The Respondent, however, contends that its
decision at all times remained tentative pending negotiations
with the Union and could have been reversed with the proper
concessions. It argues in this regard that the only work it had
decided to move prior to the start of negotiations was the struck
work (R. Br. 35), that its agreement with Taylor to purchase
Cartersville was also tentative and did not become final until
the deal was closed on November 14 (R. Br. 31), and that no
final decision was made to close the Northumberland facility
DORSEY TRAILERS, INC. 859
until impasse was reached on November 6. In essence, the
Respondent argues, implicitly, that because everything the Re-
spondent had done thus far could have been undone as late as
November 6 (Tr. 669), it could not have presented the Union
with a fait accompli. The evidence reveals otherwise.
Thus, Respondent’s suggestion on brief that on October 5, it
had simply begun “negotiating to purchase the Cartersville
facility” (R. Br. 4), is contradicted by an October 5 memo from
Marks to Respondent’s board of directors advising that agree-
ment with Taylor had been reached that same day.31 Nothing in
her memo suggests that the agreement was subject to further
negotiations or that it was only tentative. Indeed, Marks’ fur-
ther statement to the board of directors that she intended to
make the agreement public 4 days hence, e.g., on October 9, by
announcing it to all of Respondent’s constituents, including the
Cartersville employees, supports the view that the agreement
was a “done deal” by October 5, for it is highly unlikely that
Marks would have been prepared to announce the purchase of
the Cartersville facility unless the agreement was final and
irreversible.
Sawyer’s phone message and subsequent statement to
McHugh on October 9, along with comments he admits making
to a local newspaper, The Press Enterprise, on October 13,
further establishes that the decision to move was not tentative.
Thus, in his October 9 phone message, Sawyer told McHugh in
no uncertain terms that Respondent had purchased another
facility in Georgia and planned to move production to that
facility in 4–6 weeks. Nothing in his message can be read to
suggest that the Cartersville purchase and planned relocation of
unit work were only mere possibilities that Respondent was
considering. In fact, to ensure that McHugh understood that
such a decision had been made, Sawyer repeated a little later in
his message: “But again, we’ve made the decision to move
production out of Northumberland. The Company has pur-
chased a plant and we plan on moving . . . .” When McHugh
called Sawyer later that day to discuss the message, any doubts
the former may have had regarding the permanent nature of the
move were laid to rest when Sawyer told him the decision was
irreversible and the Union could do nothing to alter that deci-
sion. Four days later, Sawyer reaffirmed Respondent’s com-
mitment to move when he informed news reporter James Long
of The Press Enterprise that no matter the outcome of the nego-
tiations which were to resume that day, the decision to move
had been made, it was “definitely happening.”
In its posthearing brief, the Respondent avers that Sawyer
was simply mistaken when he told The Press Enterprise that the

31 See Jt. Exh. 2, attachment to June 12, 1996 letter from attorney
Mitchell to the General Counsel. Respondent’s witnesses provided
confusing testimony on when exactly Marks and Taylor came to
agreement. Marks, for example, testified the agreement was entered
into sometime prior to October 5. Yet, her October 5 memo to the
board of directors has her claiming that agreement was entered into that
same day. For his part, Mitchell, in a June 12, 1996 letter to the Re-
gional Office, states that the agreement was entered into on October 4,
not October 5, as stated by Marks. Gordy, on the other hand, testified
the agreement was entered into after the October 5 management meet-
ing. To add to the confusion, the Respondent on brief proffers that on
October 5, it had only begun to negotiate with Taylor for purchase of
Cartersville (R. Br. 4). Notwithstanding the above ambiguities, one
thing is certain: agreement for the purchase of Cartersville occurred,
and plans to transfer work thereto were made, well before the Union
was officially notified on October 9, and certainly before the parties
resumed negotiations on October 13.
move to Cartersville was definite. However, Sawyer, who did
not deny making the remarks, at no point in his testimony
claimed he had been mistaken in his remarks or been misquoted
by Long. Indeed, during Sawyer’s examination, the Respon-
dent’s counsel made no effort to have Sawyer disavow his re-
marks. Sawyer did try to offer an explanation for his remarks
by suggesting that his remarks were intended to reflect that
Respondent was planning to move only the struck work to Car-
tersville. His explanation is found not to be credible, for noth-
ing in his remarks makes reference to struck work. In fact, his
comments to The Press Enterprise are consistent with his earlier
remarks to McHugh that the decision to move had already been
made and was irreversible. Finally, given Sawyer’s role as
Respondent’s chief negotiator, his relatively high position with
Company, e.g., human resources vice president, and his pres-
ence during the talks that led to the Cartersville purchase, it is
highly unlikely he would not have known whether the decision
to relocate was permanent. The Respondent has not suggested
that Sawyer was unaware of Respondent’s plans. Accordingly,
I find that Sawyer knew full well what Respondent’s intentions
were and accurately reported them to The Press Enterprise re-
porter, Jones. Ironically, while the Respondent disputes the
accuracy of Sawyer’s remarks to The Press Enterprise, it has
raised no similar concern with respect to Sawyer’s remarks to
McHugh on October 9, which, as noted, conveyed the identical
message to the Union as to the inevitability of the move to Car-
tersville.32
Mitchell’s own statement to the Union on October 13, that
Respondent had decided to move “all production work” to Car-
tersville, and his June 12, 1996, statement to the Board, that the
Union had been advised from October 9, onward that the deci-
sion “to transfer work to Cartersville had been made,” likewise
serves to confirm the permanency of the move, and makes clear
that said decision was made before the start of negotiations on
October 13 (G.C. Exh. 47; Jt. Exh. 2). Mitchell, like Sawyer,
did not qualify his above remarks in any way. Consequently, I
find no basis for inferring that his remark about all production
work going to Cartersville was intended only as a reference to
struck work, or that his further statement, that the decision had
been made to transfer all work, should be read to mean that the
decision was only tentative, rather than permanent. Thus, while
Mitchell did advise the Union during negotiations that every-
thing that had been done thus far could, with the proper conces-
sions, “be undone,” given the evidence showing that the deci-
sion to relocate was irreversible, Mitchell’s statements I am
convinced were simply intended to mask the true nature of the
decision and to create the illusion that the Respondent was
engaging in serious and good-faith negotiations with the Union.
Accordingly, I find that the Respondent presented the Union
with a fait accompli, for having made the decision to relocate to
32 The Respondent claims it disavowed the October 13 newspaper ar-
ticle at the bargaining session held that same day. The Union’s bar-
gaining notes do reflect that Mitchell told the Union that some of what
was contained in the newspaper article was accurate and some was not,
that people do get misquoted, and that what he told the Union during
the negotiations, rather than what was stated in the article, was the
official company position. The purported disavowal I am convinced
was part of Respondent’s attempt to hide the fact that it had, as found
above, already decided to buy Cartersville and to permanently move all
production work out of Northumberland. Sawyer, as noted, never
claimed to have been misquoted by reporter Long.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 860
Cartersville and to close the Northumberland facility, there was
nothing left to bargain over.
(2) The parties were not deadlocked on November 6
However, even I were to find that Respondent did not pre-
sent the Union with a fait accompli, a finding that Respondent
unlawfully implemented its decision would be warranted as the
evidence does not support Respondent’s claim that it reached a
lawful impasse with the Union on November 6. “[A]n impasse
exists when good-faith negotiations have exhausted the pros-
pects of concluding an agreement, the parties are in fact dead-
locked, and there is no realistic possibility that continuation of
the discussions as of that time would have been fruitful.” Klein
Tools, 319 NLRB 661, 690 (1995). Futility, not some lesser
level of frustration, discouragement, or apparent gamesman-
ship, is what must appear if impasse is to be found. CJC Hold-
ings, Inc., 320 NLRB 1041, 1044 (1996). In Taft Broadcasting,
supra, the Board stated that in determining whether an impasse
exists such relevant factors as the parties’ bargaining history,
their good faith during the negotiations, the length of the nego-
tiations, the importance of the issue or issues as to which there
is disagreement, and the contemporaneous understanding of the
parties as to the state of negotiations must be considered. Thus,
both sides, not just one, must have decided that further negotia-
tions would be futile. The burden of proof as to whether an
impasse has been reached rests with the party making the asser-
tion, in this case the Respondent. Outboard Marine Corp., 307
NLRB 1333, 1363 (1992). The Respondent has not done so
here.
Several factors here undermine Respondent’s claim that im-
passe was reached on November 6. First, at no time during or
after the November 6 meeting did the Respondent express,
either through words or conduct, a belief that the parties had
exhausted all possibility of reaching agreement on the reloca-
tion and plant closing issue, or that further talks would be
pointless. In fact, the Respondent conveyed just the opposite
when it gave the Union assurances that the counterproposals it
submitted that day would be seriously considered and that a
response would be provided at some later date. A willingness
by one party to consider the other’s proposals is a clear indica-
tion that no impasse has occurred. CBC Industries, 311 NLRB
126 (1993).33 Mitchell’s above assurances, coupled with his
stated willingness to arrange for future bargaining sessions,
would reasonably have convinced the Union that Respondent
anticipated continued negotiations on the plant closing issue
and that movement beyond the “bullet points” proposal re-
mained a distinct possibility. Clearly, the parties’ agreement to
meet further is indicative that no impasse had occurred on No-
vember 6. Colfor, Inc., 282 NLRB 1173, 1174 (1987), enfd.
838 F.2d 164, 167 (6th Cir. 1988); see also Sacramento Union,
291 NLRB 552, 557 (1988). While the parties in fact held no
further meetings, Mitchell’s November 9 letter to McHugh
makes clear that Respondent unilaterally decided to end the

33 I find no evidence to indicate that the Respondent intended its
“bullet points” proposal to be its last, best and final offer to the Union
on the plant closing issue, or that if it was, that this fact was ever com-
municated to the Union. But even if Respondent had intended this to
be its final offer, its willingness thereafter to accept counterproposals
from the Union would have left the Union with the clear impression
that Respondent’s “final offer” might indeed not be final, depending on
what the Union might be willing to offer. D.C. Liquor Wholesalers,
292 NLRB 1234, 1235 (1989).
talks on the plant closing issue simply because it did not wish
to spend any more time on such negotiations, and not because
of a belief that the parties were deadlocked in their positions
and that further talks would be fruitless. In fact, Mitchell’s
further statement in his letter, that Respondent had found some
of the Union’s counterproposals acceptable, is inconsistent with
a claim of impasse for it suggests the possibility that compro-
mise would have been possible but for Respondent’s abrupt
termination of future bargaining. The above facts make pat-
ently clear, and I so find, that there was never a contemporane-
ous understanding by the parties either on November 6, or at
any time thereafter, that they had reached impasse in their ne-
gotiations.34
Further, the fact that the parties met only four times to dis-
cuss the relocation and plant closing issue militates against a
finding of impasse. While this factor alone cannot be determi-
native of whether a valid impasse was reached, PRC Recording
Co., 280 NLRB 615, 635 (1986), enfd. 836 F.2d 289 (7th Cir.
1987); also NLRB v. Powell Electrical Mfg. Co., 906 F.2d
1007, 1012 (5th Cir. 1990), it nevertheless remains a relevant
factor under Taft Broadcasting, supra. NLRB v. Powell Electri-
cal Mfg., supra. Here, despite meeting four times, no actual
exchange of proposals occurred until October 26. As described
above, the first two meetings (October 13 and 19) involved
little more than an exchange of, and requests for, information,
and discussion of the reinstatement and other rights of unfair
labor practice strikers, and service of the 60-day WARN notice.
Although the move to Cartersville and the closing of Northum-
berland were discussed, such discussions amounted to nothing
more than repeated assertions by Respondent that serious con-
cessions were needed if the Northumberland facility was to
remain open. No actual negotiations on the plant closing issue
however took place on either on October 13 or 19. Although
on October 26, the parties, as noted, did exchange proposals,
except for Respondent’s summary rejection of the Union’s
concessionary mandatory overtime proposal, little if any real
bargaining on the plant closing issue took place that day also.
For its part the Union, having just been handed a copy of the
Respondent’s “bullet points” proposal identifying some 31
concessions being sought from the Union, understandably was
unprepared and consequently declined to address the “bullet
points” at that point in time. The bulk of the 2-½-hour October
26 meeting, as noted, was spent discussing the number of strik-
ers to be reinstated, and the entitlement by those not being rein-
stated to medical insurance benefits. Only of the November 6,
meeting can it be said that some substantive discussion of the
plant closing issue took place. Thus, it was during this 2-½-
hour meeting that the Union responded to each and every one
of Respondent’s “bullet points,” and offered counterproposals
of its own. Realistically then, the most that can be said is that
the parties spent a total of 2-½-hours on November 6, engaged
in actual negotiations over the plant closing issue. Given these
circumstances, the brief number of sessions held, and more
importantly the rather insignificant amount time spent in actual
negotiations on an issue of obvious paramount importance to all
34 I remain convinced that Respondent had no intentions of altering
its decision to move to Cartersville and to close Northumberland even
if the Union had been agreeable to all of its “bullet points” and that
Mitchell, possibly anticipating that this matter might wind up in litiga-
tion, simply feigned interest in the Union’s counterproposals so as to
create the illusion of good-faith bargaining on the part of Respondent.
DORSEY TRAILERS, INC. 861
concerned, when viewed together with the conduct of the par-
ties on November 6, supports a finding of no impasse.35
There remains the question of Respondent’s overall approach
to the negotiations, with the General Counsel asserting, and the
Respondent denying, that it engaged in bad-faith bargaining. I
am in general agreement with the General Counsel, although I
believe that Respondent’s bad-faith bargaining began after
employees went out on strike. Prior thereto, the Respondent
appeared willing to, and in fact did, reach interim agreement on
a number of noneconomic issues, a clear indication that it was
bargaining in good faith. However, despite its apparent good
faith during the prestrike negotiations, the Respondent through-
out that period made clear its strong opposition to a strike by
repeatedly threatening employees and the Union with plant
closure and loss of jobs if they were to walk out. With the ad-
vent of the strike, the Respondent’s bargaining approach and
attitude changed. Thus, at the next bargaining session on July
7, the Respondent reneged on certain interim agreements
reached with the Union prior to the strike, as well as a manda-
tory overtime proposal it had on the table. By October 13, it
withdrew its final proposal altogether, and on October 26, sub-
mitted its “bullet points” proposal which essentially “gutted” all
prior interim agreements and was regressive in nature.
The Board has long held that the withdrawal by an employer
of contract proposals tentatively agreed to by both the employer
and the union in earlier bargaining sessions without good cause
obstructs the bargaining process and is evidence of a lack of
good faith. The General Athletic Products Co., 227 NLRB
1565, 1574 (1977), citing to NLRB v. American Seating Com-
pany of Mississippi, 424 F.2d 106 (5th Cir. 1970); See also,
Dayton Electroplate, 308 NLRB 1056, 1063 (1992); Mead
Corp., 256 NLRB 686, 696 (1981). The Respondent’s sole

35 Respondent’s claim, on brief (p. 39), that it was the Union which
engaged in dilatory and bad-faith bargaining by failing to schedule
more meetings, is lacking in merit. The Respondent’s claim is prem-
ised on Mitchell’s assertion that the parties had tentatively scheduled
meetings for October 13, 14, and 15, but that McHugh canceled the
latter two due to a conflict in his schedule (Tr. 653). McHugh, how-
ever, denied Mitchell’s assertions (Tr. 303). Mitchell’s testimony in
this regard was not very convincing, while McHugh’s denial was.
Moreover, I find nothing in the parties’ October 13, bargaining notes to
suggest that such meetings had ever been scheduled. Rather, the notes
indicate only that the parties agreed that October 19, would be their
next meeting date.
Nor do I find merit to Respondent’s further claim that the Union had
sought to “drag out negotiations” by failing to submit a complete pro-
posal prior to November 6 (R. Br. 40), for the Union’s failure to come
up with any proposals of its own was in large measure due to Respon-
dent’s failure to timely provide the Union with the requested informa-
tion needed to prepare such proposals. Thus, the information requested
by the Union on October 13, was not turned over to the Union until the
October 19 session, despite Mitchell’s promise that the information
would be provided sooner, rendering the Union incapable of formulat-
ing proper proposals. In similar fashion, the “bullet points” proposal
was not turned over to the Union until the start of the October 26 meet-
ing even though Mitchell had the proposal with him during the October
19 session. Given the number of items contained in the Respondent’s
proposal, the Union could hardly have been expected to come up with
counterproposals of its own on October 26, without first having re-
viewed and considered each of the “bullet points.” By the time the
parties next met on November 6, the Union had fully reviewed the
“bullet points” and responded with counterproposals of its own. Given
these circumstances, I find no basis for concluding that the Union en-
gaged in dilatory bargaining, or was otherwise attempting to drag out
negotiations.
justification for its actions, as testified to by Gordy (Tr. 570)
and as argued on brief (p. 33), is that having weathered the
strike, it had a right to change its bargaining position based on
its “new found economic strength.” While there is no disputing
the general assertion that a party that weathers a strike is free to
use its new-found strength to obtain contractual terms it deems
more favorable through a reduction or withdrawal of prestrike
proposals, O’Malley Lumber Co., 234 NLRB 1171, 1179
(1978), it is equally clear that a party may not do so where, as
here, the economic leverage gained is the product of a strike
precipitated by its own unfair labor practices. Storer Commu-
nications, 294 NLRB 1056 (1989). As the Respondent has not
shown good cause for withdrawing its proposals from the bar-
gaining table and reneging on prior agreements, the reasonable
inference to be drawn, especially in light of its threats of plant
closure, is that any interest the Respondent may have had in
reaching a final agreement with the Union dissipated with the
onset of the strike, and that Respondent’s above conduct was
designed to thwart the bargaining process, possibly until such
time as the Cartersville facility became available for purchase.
Other indicia of Respondent’s lack of good-faith bargaining
include its failure to give the Union prior notice of its decision
to permanently relocate all unit work to Cartersville and to
close its Northumberland facility, Metropolitan Teletronics,
279 NLRB 957, 959 (1986), and its attempt on October 19, to
steer the Union into effects bargaining when no bargaining had
even taken place, or so much as proposals exchanged, on the
relocation and plant closing decision itself. Significantly, the
Respondent chose not to reveal to the Union until after negotia-
tions had ended that day that it had prepared a “bullet points”
proposal. I am convinced from Respondent’s failure to provide
a credible explanation for not turning over the proposal during
the start or at any time during the October 19 session that this
was simply part of Respondent’s overall plan to avoid reaching
agreement with the Union. The Respondent’s refusal on No-
vember 6, to provide the Union with financial information
needed to justify its demand for steep wage cuts and other eco-
nomic concessions as the only means by which Northumber-
land would remain open, especially given the Union’s stated
willingness to agree to such concessions, provides further evi-
dence of Respondent’s bad faith. See Reece Corp., 294 NLRB
448, 453 (1989).36
Finally, the Respondent’s abrupt November 9 decision to en-
gage in no further negotiations regarding its relocation and
plant closing decision without so much as revealing which of
the Union’s counterproposals had been found acceptable and
which were not, or affording the Union the opportunity to ad-
dress and possibly modify those deemed unacceptable by Re-
spondent, suggests that Respondent may not have anticipated
the Union’s willingness to agree to any of its regressive “bullet
points” and that, faced with the possibility the Union might
36 The General Counsel contends on brief (p. 45–46) that the failure
to provide the Union with this information separately violates Sec.
8(a)(5) and (1) of the Act. However, except for the 8(a)(5) and (1)
allegation relating to Respondent’s refusal to provide the Union with
information relating to its attendance policy, the complaint does not
allege the refusal to provide the financial information as a separate
violation. In the absence of any such allegation, I decline to find a
violation as to Respondent’s refusal on November 6, to comply with the
Union’s information request. The absence of such a finding, however,
does not preclude me from considering Respondent’s conduct as evi-
dence of bad-faith bargaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 862
acquiesce to its other concessionary demands and force the
Respondent into an agreement it was striving hard to avoid, the
Respondent opted to end any further talks on the decision itself,
and proposed instead moving into effects bargaining. Having
irrevocably decided to move to Cartersville and to close North-
umberland, the Respondent, given its admission that it had no
need for two separate facilities, could ill-afford to reach agree-
ment with the Union that would force it to keep Northumber-
land open. Thus, I am convinced that it was the avoidance of
this undesirable scenario, and not any business exigency, which
compelled Respondent to abruptly terminate any further talks
on the relocation and plant closure decision itself, despite hav-
ing assured the Union at the end of the November 6 meeting
that such talks would continue.
For all of the above reasons, I find that at all times following
the start of the strike the Respondent engaged in bad-faith bar-
gaining with the specific intent of not reaching agreement with
the Union. Consequently, the Respondent’s contention on brief
that it reached valid impasse on November 6, is found to be
without merit. As the parties were not at a lawful impasse, the
Respondent was not at liberty to implement its relocation and
plant closing decision. Having done so, I find that the Respon-
dent, as alleged in the complaint, violated Section 8(a)(5) and
(1) of the Act.
2. The 8(a)(3) and (1) allegation
The question remaining to be answered is whether, as al-
leged in the complaint, the Respondent’s decision to relocate to
Cartersville and to close Northumberland was motivated by
antiunion considerations or by some other legitimate, nondis-
criminatory reason. In Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 800 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982); approved NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983), the Board announced a causation test to
be used in all cases alleging violations of Section 8(a)(3) and
(1) that turn on employer motivation. Under Wright Line, the
General Counsel bears the initial burden of establishing a prima
facie case by showing that the employer’s decision was moti-
vated at least in part by its employees’ union or other protected
activity, that the employer knew or had reason to be aware of
such activity, and that it harbored antiunion animus. If the
General Counsel is able to make such a prima facie showing,
the burden will shift to the employer to show it would have
taken the same action or, as in this case, made the decision,
regardless of any Union or other protected activity the employ-
ees may have engaged in.
The General Counsel has made a strong prima facie showing
that the Respondent’s decision to relocate to Cartersville and to
close its Northumberland facility was motivated by antiunion
considerations, and more particularly because its employees
chose to go out on a lawful strike, conduct which, regardless of
its nature (economic strike or unfair labor practice strike) is
protected under the Act. The Respondent’s knowledge of the
strike by employees is well established in the record and is not
contested. The record is also replete with evidence of Respon-
dent’s antiunion animus that included, inter alia, the following:
numerous threats to close Northumberland if employees struck
or if they did not agree to Respondent’s proposals; directing
employees to bring their grievances to supervisors rather than
to the Union; refusing to provide the Union with information on
occurrences; unilaterally implementing a new employee atten-
dance policy; and failing to give the Union prior notice of, and
a timely opportunity to bargain over, its relocation and plant
closing decision. On these facts, I conclude that the General
Counsel has satisfied her initial Wright Line burden of proof.
The burden now shifts to the Respondent to prove by a prepon-
derance of credible evidence that it would have proceeded with
the move to Cartersville and the Northumberland shutdown
even if the strike had not occurred. The Respondent has not
done so.
The Respondent, it should be pointed out, did not address it-
self to this particular allegation in its posthearing brief. Thus,
except for the denial in its answer, the Respondent has pre-
sented no defense to the 8(a)(3) allegation that the relocation
and plant closing decision was motivated by its desire retaliate
against employees for going on strike. However, in connection
with its defense to the 8(a)(5) allegation, the Respondent did
assert that but for the strike it would not have been forced to
look for an alternative production site. It argued, for example,
that the decision to move work to Cartersville was motivated by
legitimate business reasons, e.g., a need to maintain production
and, as put by Sawyer, stop the financial “bleeding.” Thus,
notwithstanding the absence of a specific defense to the above
8(a)(3) allegation, I shall assume its argument to be that the
decision to transfer unit work to Cartersville and to shut down
its Northumberland plant was motivated solely by a need to
maintain production, and not by antiunion considerations.
Several factors convince me that Respondent’s decision to
relocate to Cartersville and close its Northumberland facility
was motivated more by a desire to retaliate against employees
for going on strike than by a need to maintain production and
“avoid economic suicide” (R. Br. 7). For one, there was no
economic justification for Respondent to shut down the North-
umberland facility, for by its own account Northumberland was
its most profitable operation (R. Br. 7–8), with prestrike earn-
ings totaling almost $300,000 per month, which represented 20
percent of Respondent’s total revenue. By the start of 1995, the
facility had, according to Gordy, exceeded all expectations in
terms of production, efficiency, and profitability. The record
makes clear that Respondent was quite pleased with the North-
umberland facility and committed to its long-term operation, as
evident by the fact that it had recently invested more than
$100,000 in the facility, and had earmarked an additional
$160,000 for further improvements in 1995, anticipating that
1995 would be a banner year (Tr. 527, 536).37 In this regard,
Gordy testified that given the “remarkable changes” that had
taken place at Northumberland in recent years, “losing what we
had accomplished certainly wasn’t something I wanted to see
happen nor anyone else wanted to see happen” (Tr. 528). The
above facts make it perfectly clear that closing the facility
would have made no economic sense to Respondent.
The Respondent, however, did precisely that on October 5,
when it purchased Cartersville and decided to permanently
transfer all unit work to that facility under the pretext that it
was suffering heavy losses from a loss of production caused by
the strike and had to find a way to stop the “bleeding.”38 I do

37 The Respondent on brief took contrary positions regarding the
state of the Northumberland plant. Thus, while asserting on the one
hand that the facility “was simply out-dated and inefficient” (R. Br. 10),
it stated elsewhere that Northumberland was its most profitable facility
(R. Br. 7–8). The latter assessment was confirmed by Gordy who, as
noted, testified that Northumberland had exceeded all expectations in
terms production and efficiency (Tr. 528).
38 As found above, the purchase of, and permanent transfer of unit
work to, the Cartersville facility and the closure of the Northumberland
DORSEY TRAILERS, INC. 863
not suggest that Respondent suffered no losses due to the strike,
for given its near 4-month long duration it is reasonable to be-
lieve that the strike would have resulted in a decrease in pro-
duction and a drop in earnings for Respondent. However, if the
Respondent’s true goal in deciding to transfer work to Carters-
ville and to close Northumberland was to avoid any further
losses caused by the strike, its concern in this regard was obvi-
ated on October 16, when the strikers unconditionally offered
to return to work. By October 16, the Respondent had not yet
transferred any work or equipment to Cartersville (R. Br. 5;
G.C. Exh. 51).39 Given these circumstances, I am convinced
that the Respondent would have had little or no difficulty re-
suming normal production at Northumberland within a rela-
tively short period of time. The Respondent does not contend
otherwise. Thus, by October 16, Respondent’s alleged reason
for transferring all work to Cartersville and closing Northum-
berland, e.g., to resume production and prevent further losses
caused by the strike, ceased to exist.
Yet, despite being presented with the opportunity to resume
normal production and stop the “bleeding,” the Respondent
chose not to offer its more highly skilled striking employees
immediate reinstatement as it was required to do, but opted
instead to retain the bulk of its temporary work force for an
additional 10 days or so, even though it found them to be unre-
liable and was losing “hundreds of thousands of dollars” by
retaining them (R. Br. 7). Respondent’s conduct in this regard
convinces me that the need to maintain production had little to
do with Respondent’s decision to close its financially success-
ful Northumberland facility, and that the reason for the closure
was related more by a desire to retaliate against the strikers.
There is other evidence supporting the view that the closure
of Northumberland was retaliatory in nature and not related to
any production needs. On September 29, for example, Chit-
wood wrote to Marks recommending the closure of Northum-
berland because of the “striking employees intransigence on the
mandatory overtime issue and their overall bitterness“ (G.C.
Exh. 50). The Chitwood memo provides clear evidence that the
decision to close Northumberland had more to do with Respon-
dent’s animosity towards the strikers in general, and nothing to
do with decreased production or a loss of earnings. There is
also Marks’ statements to a reporter for Working Woman
magazine in May 1996, that the Northumberland strike was
closed in response to an “ugly strike.” Marks disputed that
these were her exact words, and suggested they might have
been the reporter’s assumptions of what she said. She did,
however, admit saying to the reporter that “sometimes it takes a
real kick in the skirts for us to focus on what we should be do-
ing” (Tr. 713–714). I am convinced Marks made the “ugly
strike” comments to the reporter. Thus, while expressing
“doubt” that she would have used such words, the fact remains
that she never denied the substance of her remarks associating
the closure of Northumberland with the “ugly strike.” I find
that along with her admitted “kick in the skirts” remark, Marks

plant were integral parts of the same decision, so that the fate of the
Northumberland plant was sealed with the acquisition of the Carters-
ville facility.
39 Respondent’s Northumberland shutdown schedule reflects that the
transfer of materials, along with the breakdown and transfer of equip-
ment was to begin on or about November 6. Significantly, the timing
of these events coincided with the last day of the parties’ negotiations,
suggesting that Respondent may have been intending since about Octo-
ber 5, to take the negotiations no further than November 6.
also made the “ugly strike” remark as quoted to her by the
General Counsel at the hearing.
In summary, given the Respondent’s repeated prestrike
threats to close the facility should the employees walk out, I
conclude from the above comments by Marks and Chitwood,
and from the fact that as of October 16, Respondents stated
justification for the permanent transfer of unit work to Carters-
ville and closure of Northumberland, its most profitable facil-
ity, had dissipated, that the Respondent was simply carrying out
its prestrike threats when it decided to move all work out of and
to close the Northumberland plant. The suggestion that the
Respondent might have been able to operate more profitably in
Cartersville because of its alleged proximity to customers in the
south and because of the incentives being offered it by the State
of Georgia does not negate the fact that what motivated Re-
spondent to relocate in the first place was a desire to rid itself of
its problem work force and to avoid any further bargaining
obligation with the Union.40
For the above stated reasons, I find that the Respondent has
not satisfied its burden under Wright Line of showing by a pre-
ponderance of the credible evidence that its decision to relocate
to Cartersville and to close the Northumberland facility was
motivated by legitimate business reasons, or that it would have
made that decision even if the employees had not undertaken to
go on strike. Accordingly, having failed to rebut the General
Counsel’s prima facie case, I find that Respondent’s decision
was indeed motivated by antiunion considerations and in viola-
tion of Section 8(a)(3) and (1) of the Act. See Ford Bros,. 294
NLRB 107, 133 (1989); Strawsine Mfg. Co., 280 NLRB 553
(1986).
Alternatively, I agree with both the General Counsel and the
Union that the Respondent’s unlawful conduct in closing its
Northumberland facility and moving to Cartersville while em-
ployees were engaged in an unfair labor practice strike was
40 Notwithstanding the alleged advantages offered by the Cartersville
facility, it simply made no business sense for the Respondent to close
what the Respondent concedes was its most profitable facility (R. Br.
7–8). As made clear by Gordy, the Northumberland facility was the
northeastern regional supplier of dump trailers and it was more cost-
effective to build dump trailers in Northumberland than it would be in
Cartersville. Thus, while the move to Cartersville would have resulted
in lower shipping and freights costs of flatbed trailers to its southern
clients, with respect to its dump trailer production, the shipping and
freight costs to its northeastern customers would obviously have been
higher. Yet, strangely enough, Marks testified that Respondent’s origi-
nal intent when it closed on the Cartersville deal was to manufacture
dump trailers at that facility, but decided against it. Although the Re-
spondent had discontinued dump trailer production at Northumberland,
conduct which was found to be unlawful in the underlying Dorsey case
(321 NLRB 616), it had every intention of resuming such production,
as evident by its purchase in July 1996, of Montone Trailers, located in
Dillon, South Carolina, for this particular purpose (Tr. 702). Ironically,
the freight and shipping costs factor that Respondent purportedly found
so compelling in deciding to make the move from Northumberland to
Cartersville obviously carried little weight in the decision to acquire the
Montone facility, for the shipping and freight costs from Dillon, South
Carolina, to Respondent’s northeast dump trailer customers would
clearly have been higher. Yet, the Respondent still had the Northum-
berland facility which it could have used for that purpose and which
would have been more cost effective than manufacturing dump trailers
in Dillon, South Carolina. That Respondent chose not to do so and was
willing to incur higher costs is yet another indication that the Respon-
dent was simply trying to avoid any further bargaining relationship with
the Union at Northumberland.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 864
“inherently destructive” of employee rights. In doing so with-
out so much as prior notice to the Union, the Respondent ren-
dered the negotiations meaningless, terminated a longstanding
bargaining relationship with the Union, and displaced a work
force of some 200 employees. By its above conduct, the Re-
spondent not only demonstrated a latent hostility towards the
collective-bargaining process, but also conveyed the clear mes-
sage to employees it was their protected activity in going on
strike which led to its imposition of the severest form or work-
place punishment, plant closure and termination. In these cir-
cumstances, I find Respondent’s conduct to have been so “in-
herently destructive” as to preclude the need for any further
inquiry into its motivation. NLRB v. Great Dane Trailers, 388
U.S. 26, 33 (1967); See also International Paper Co., 319
NLRB 1253, 1266 (1995), enfd. denied 115 F.3d 1045 (D.C.
Cir. 1997). Accordingly, a finding of an 8(a)(3) and (1) viola-
tion is further justified under this alternative theory.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The strike that began on June 26, and ended on October
16, 1995, was at all times an unfair labor practice strike.
4. By directing employees to bring their grievances to su-
pervisors before going to the Union, telling them not to talk to
the Union without a supervisor’s prior approval, or otherwise to
do so only before or after work, telling them it would close the
facility because it had no time to waste on negotiations, and
threatening them with plant closure and job loss if they went on
strike, the Respondent has violated Section 8(a)(1) of the Act.
5. By refusing to immediately reinstate strikers upon their
unconditional offer to return to work, the Respondent has vio-
lated Section 8(a)(3) and (1) of the Act.
6. By unilateral implementing a new attendance policy on
February 2, 1995, without first notifying and bargaining with
the Union, the Respondent has violated Section 8(a)(5) and (1)
of the Act.
7. By refusing to comply with the Union’s December 21 in-
formation request for the number and dates of all occurrences
issued to unit employees prior to 1995, and a listing of each
location where the employee records are kept and/or main-
tained, the Respondent has violated Section 8(a)(5) and (1) of
the Act.
8. By permanently transferring all bargaining unit work
from its Northumberland, Pennsyvania facility to its Carters-
ville, Georgia facility and thereafter closing its Northumberland
facility without first affording the Union reasonable notice of,
and a meaningful opportunity to bargain over, said decisions,
the Respondent has violated Section 8(a)(5), (3), and (1) of the
Act.
9. The above-described conduct are unfair labor practices af-
fecting commerce within the meaning of Section 2(6) and (7) of
the Act.
10. The Respondent, except as set forth above, has engaged
in no other unfair labor practices.
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.41
The General Counsel seeks, and I find no good reason not to
grant, an order directing the Respondent to restore the status
quo ante at Northumberland by reinstating its operations at that
facility, making all unit employees, including unfair labor prac-
tice strikers, whole for losses they may have sustained due to
Respondent’s unlawful conduct, and bargaining in good faith
with the Union over its decision to transfer all unit work to
Cartersville and to close its Northumberland plant. Such reme-
dial relief has been found by the Board to be appropriate in
cases where, as here, an employer has permanently relocated all
unit work to another location and closed its existing facility
without giving a union prior notice of, and an opportunity to
bargain over, that decision. An order requiring the reinstate-
ment of operations, however, would not be appropriate if an
employer can show that it would be unduly burdensome to do
so. Lear Siegler, Inc., 295 NLRB 853, 861 (1989); Elliott Tur-
bomachinery Co., supra at 143. The Respondent here has made
no such claim either at the hearing or in its posthearing brief,
despite having been put on notice through the complaint of the
General Counsel’s intent to seek a restoration order. In these
circumstances, a restoration order is a fully appropriate and
necessary remedy. See Taylor Machine Products, 317 NLRB
1187, 1217–1218 (1995).
Accordingly, I shall recommend that Respondent be ordered
to reinstate operations at its Northumberland facility,42 to bar-
gain, on request, with the Union over its decision to relocate
bargaining unit work Cartersville and to close Northumberland,
and to reinstate all unit employees who were laid off or termi-
nated when it relocated operations to Cartersville to their for-
mer jobs at Northumberland or, if those positions no longer
exist, to substantially equivalent jobs, without prejudice to their
seniority or other rights and privileges. I shall further recom-
mend that Respondent make said employees whole for any loss
of earnings or other benefits they may have suffered as a result
of Respondent’s unlawful conduct, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest on any
such amounts to be computed in accordance with New Horizons
for the Retarded, 283 NLRB 1173 (1987).
To remedy its unlawful, unilateral implementation of a new
attendance policy, the Respondent shall be ordered to, upon
request from the Union, rescind that attendance policy and
reinstate the attendance policy in existence prior to February 1,
1995, including its “Safety Bucks” and monthly drawing pro-
grams associated with that prior policy, and make unit employ-
ees whole for any losses suffered as a result of the change in
policy, with interest, as set forth above. The Respondent shall
also required to provide the Union with the information re-
quested on December 21, 1994, and to post an appropriate no-
tice.

41 I find that a broad cease-and-desist order is appropriate here given
Respondent’s demonstrated proclivity to violate the Act, as evident by
the Board’s findings in Dorsey Trailers, 321 NLRB 616 (1996), and the
seriousness of the violations found herein.
42 At the compliance stage of this proceeding the Respondent may
introduce evidence, if any, that was not available prior to the unfair
labor practice hearing, to show that restoration of production at its
Northumberland facility would be unduly burdensome. Lear Siegler,
supra 862.
DORSEY TRAILERS, INC. 865
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended43
ORDER
The Respondent, Dorsey Trailers, Inc., Northumberland,
Pennsylvania plant, Northumberland, Pennsylvania, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with United Auto
Workers International Union and its Local 1868, International
Union, AFL–CIO, CLC, as the exclusive representative of its
employees in appropriate unit described below, by failing to
give the Union notice of and an opportunity to bargain over its
decision to permanently transfer all unit work from its plant in
Northumberland, Pennsylvania, to its Cartersville, Georgia
facility, and over its decision to close its Northumberland plant.
The appropriate unit includes:

All production, maintenance and stock room employees of
employed by the Employer at its Northumberland, PA plant,
but excluding office clerical employees, professional employ-
ees, salesmen, guards, watchmen and supervisors as defined
in the Act.

(b) Refusing to provide the Union with information on the
number occurrences each unit employee has on file prior to
1995, the date of each employee’s last occurrence, and a listing
of each location where Respondent keeps and/or maintains
employee records.
(c) Making unilateral changes in the employee attendance
policy, including terminating the “Safety Bucks” and monthly
drawing programs associated with that policy, without first
notifying the Union and affording it an opportunity to bargain
over such changes.
(d) Transferring its operations from Northumberland to Car-
tersville and thereafter closing the Northumberland facility
because employees in retaliation for employees participating in
an unfair labor practice strike, and denying immediate rein-
statement to reinstate unfair labor practice strikers who have
unconditionally offered to return to work.
(e) Threatening to close its Northumberland facility if an
agreement for a successor contract could not be reached with
the Union, or if employees voted to go out on strike, threaten-
ing employees with unspecified reprisals because of their Un-
ion sympathies, directing that they bring their grievances to the
supervisors rather than to the Union so that the supervisor could
decide whether they should take their grievance to the Union,
and creating the impression that it was keeping employees’
Union activities under surveillance.
(f) In any other manner interfering with, restraining, or co-
ercing 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) Reopen and reestablish its trailer manufacturing opera-
tion in Northumberland, Pennsylania, as it was prior to June 26,
1995, and upon request, bargain in good faith with the Union
over its decision to transfer all unit work from Northumberland

43 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.
to Cartersville and to close the Northumberland facility and, if
an understanding is reached, embody the same in a signed
agreement.
(b) Upon request, rescind the attendance policy unilaterally
implemented on February 1, 1995, reinstate the attendance
policy in existence prior to that date, including the “Safety
Bucks” and monthly drawing programs associated therewith,
notify and bargain in good faith with the Union over any
changes to be made to the attendance policy, and if an under-
standing is reached, embody the same in a written agreement.
This order, however, is not to be construed as requiring the
Respondent to rescind any improvements in the employees’
terms and conditions of employment resulting from its imple-
mentation of the February 1, 1995 attendance policy.
(c) Within 14 days from the date of the Order, offer all unit
employees, including unfair labor practice strikers, who were
laid off or terminated due to the unlawful closure of that facility
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and privi-
leges previously enjoyed.
(d) Make all unit employees, including unfair labor practice
strikers, whole for any loss of earnings or other benefits they
may have suffered due to Respondent’s unlawful conduct, in-
cluding any losses resulting from the elimination of the “Safety
Bucks” and monthly drawing programs, with interest, as de-
scribed in the remedy section of this decision.
(e) Comply with the Union’s December 21, 1994 informa-
tion request by providing it with the number of occurrences
issued to each unit employee prior to 1995, and the date of each
employee’s last occurrence, and with a listing of each location
where Respondent keeps and/or maintains any employee re-
cords.
(f) 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 necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(g) Within 14 days after service by the Region, post at its
Northumberland, Pennsylvania facility, copies of the attached
notice marked “Appendix.”44 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 main-
tained 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 pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since June 30, 1995.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
44 If this order is enforced by a judgment of the 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 866
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT refuse to bargain in good faith with United
Auto Workers International Union and its Local 1868, Interna-
tional Union, AFL–CIO, CLC, which represents our employees
in the appropriate unit described below, by failing to give it
prior notice of and an opportunity to bargain over, our decision
to permanently transfer all bargaining unit work from our
Northumberland, Pennsylvania facility to our Cartersville,
Georgia facility, and to close our Northumberland facility, and
WE WILL NOT unilaterally change our employee attendance
policy without first notifying and bargaining with the Union
over the changes. The appropriate unit includes:

All production, maintenance and stock room employees of
employed by the Employer at its Northumberland, Pennsyl-
vania plant, but excluding office clerical employees, profes-
sional employees, salesmen, guards, watchmen and supervi-
sors as defined in the Act.

WE WILL NOT refuse to provide the Union with information
that is necessary for and relevant to the performance of its du-
ties as exclusive bargaining representative of our unit employ-
ees.
WE WILL NOT retaliate against our employees who engaged
in an unfair labor practice strike by permanently moving all
unit work to Cartersville and closing our Northumberland facil-
ity, and WE WILL NOT refuse to offer immediate reinstatement
to unfair labor practice strikers who have unconditionally of-
fered to return to work.
WE WILL NOT threaten that our Northumberland, Pennsy-
vania facility will close in the event we do not reach agreement
with the Union on a successor contract or because you vote to
go on strike, WE WILL NOT threaten you with unspecified
reprisals because of your union sympathies, WE WILL NOT
instruct you to bring your grievances to a supervisor so that the
supervisor can determine if you should take the grievance to the
Union, and WE WILL NOT create the impression that your
union activities are being kept under our surveillance.
WE WILL NOT in any other manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed to you by
Section 7 of the Act.
WE WILL reestablish trailer manufacturing operations at our
facility in Northumberland, Pennsylvania as it was prior to June
26, 1995, and WE WILL , on request, bargain in good faith with
the Union with respect to the matters involved in this proceed-
ing, including our decision to relocate bargaining unit work to
Cartersville and to close the Northumberland facility, and the
new attendance policy we implemented on February 1, 1995.
WE WILL offer all unit employees, including unfair labor
practice strikers, who were laid off or terminated when we relo-
cated our operations to Cartersville, Georgia, and closed our
Northumberland plant, immediate and full reinstatement to
their former or substantially equivalent positions, without re-
gard to their seniority or other rights and privileges, and WE
WILL make them whole for any loss of earnings or other bene-
fits they may have suffered due to our unlawful conduct, in-
cluding any losses resulting from our unlawful discontinuance
of the “Safety Bucks” and monthly drawing programs, with
interest.
WE WILL rescind the attendance policy that was put into ef-
fect on February 1, 1995, and reinstate the old attendance pol-
icy that was in effect prior to February 1, 1995, including the
“Safety Bucks” and monthly drawing programs.
DORSEY TRAILERS, INC.