Plymouth Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 607 (N.L.R.B. 1969)

PLYMOUTH INDUSTRIES, INC.
Plymouth Industries, Inc. and United Industrial
Workers, Local 399. Case 7-CA-6911
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On January 30, 1969, Trial Examiner George J.
Bott issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices,
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that Respondent had not engaged in
other unfair labor practices alleged in the complaint.
Thereafter, Respondent filed exceptions to the
Decision and a supporting brief, and the General
Counsel filed limited cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case,' and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.
THE REMEDY
In his cross-exceptions, the General Counsel
contends that the Trial Examiner's Recommended
Order should be clarified so as to place on
Respondent the entire obligation of offering
reinstatement to the affected employees
unconditioned by the obligation the Trial Examiner
would impose on the Regional Director to notify the
employees that Respondent has advised him of its
intent to comply with our Order, or on the
employees to advise the Regional Director or
Respondent, within 20 days of such notice, of a
desire to be reinstated. We find merit in this
contention.
Therefore, we shall order that Respondent offer
full and immediate reinstatement to all Warren
employees who were laid off on or after June 14,
1968, as a consequence of the transfer of unit work
(other than work on the Chevrolet truck order) from
Warren to Ithaca.' Reinstatement shall be to the
same or substantially equivalent jobs at
'Respondent has requested oral argument . This request is hereby denied
as the record , the exceptions , and the brief adequately present the issues
and the positions of the parties.
607
Respondent's Ithaca plant or at the Warren plant, if
Respondent elects to resume operations there,
without prejudice to seniority or other rights and
privileges, discharging if necessary all persons hired
since June 14, 1968. If there is insufficient work for
all employees to be offered reinstatement,
Respondent shall place the names of those for whom
work is not available on a preferential hiring list, in
the order of their seniority, and shall offer them jobs
in the future before hiring other persons. Employees
offered reinstatement at Ithaca shall be allowed a
period of time for accepting such offers, a period of
reasonable length with respect to the particular
circumstances here prevailing - which may include
a need by such employees to make a decision on on
whether to move themselves and their families to
Ithaca.
Respondent shall also be required to pay each
such employee backpay for losses suffered as a
consequence of the aforementioned transfer of unit
work. An employee's backpay period shall begin
with his layoff and shall terminate with the offer of
reinstatement or placement on the preferential hiring
list should there not be sufficient work available for
him.' Loss of pay shall be computed in the manner
prescribed in F. W. _ Woolworth Company, 90
NLRB 289, together with interest on such sums at
the rate of 6 percent per annum in accordance with
Isis Plumbing & Heating Co., 138 NLRB 716. In
addition to the foregoing, Respondent shall pay to
employees reinstated at the Ithaca plant, all
necessary and proper items of expense incurred in
moving themselves, their immediate families, and
their household effects to Ithaca.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Plymouth Industries, Inc., Warren and Ithaca,
Michigan, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United
Industrial Workers, Local 399, as the exclusive
collective-bargaining representative of Respondent's
employees in the appropriate unit with respect to
wages, hours, and other terms and conditions of
employment.
'It is possible that one or more of the employees laid off on or after
June 14 , 1968, would have been laid off as part of a reduction in work
force even if Respondent had not unilaterally transferred unit work to
Ithaca . With regard to any such employees, they are also entitled to
reinstatement if, but for the transfers of work to Ithaca, they would have
been recalled to work at Warren at a later date.
'In accordance with the circumstances set forth in in . 2, supra, when
determination is made of the amounts of backpay due, consideration shall
be given to the possibility that, had there been no transfer of unit work to
Ithaca, some employees would still have been in layoff status during part
of the period subsequent to June 14, 1968
177 NLRB No. 71
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Unilaterally transferring unit work,
discontinuing unit work , relocating operations, or
otherwise unilaterally changing the wages , hours,
and other terms and conditions of employment of
unit employees without prior bargaining with the
above-named Union concerning such decisions and
the effects thereof.
(c) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
the rights guaranteed to them by Section 7 of the
Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request , bargain collectively with the
Union concerning the effects on the Warren
employees of the transfer of unit work to the Ithaca
plant and the discontinuance of operations at the
Warren plant.
(b) If and when operations at Warren are
resumed , bargain collectively with the Union as the
statutory representative of the employees in the
appropriate unit.
(c) Offer to all employees laid off at its Warren
plant on or after June 14, 1968, immediate and full
reinstatement to their former or substantially
equivalent positions, at Warren if Respondent
decides to resume operations there and otherwise at
Ithaca, without prejudice to their seniority or other
rights and privileges , discharging if necessary any
.persons hired subsequent to June 14 , 1968; all in the
manner set forth in the "Remedy" section of this
Decision and Order . If there are not a sufficient
number of jobs for all the employees to be offered
reinstatement, Respondent shall place the names of
those for whom jobs are not available on a
preferential list in the order of their seniority, and,
thereafter , offer them reinstatement before other
persons are hired for such work.
(d) Make whole all unit employees unlawfully laid
off at Warren on or after June 14 , 1968, for any
loss of earnings suffered by reason of the unilateral
transfer of unit ,work to Ithaca and, in addition, pay
moving expenses to those employees reinstated at
Ithaca , in the manner set forth in the "Remedy"
section of this Decision and Order.
(e) Notify the aforementioned employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended , after discharge from the Armed
Forces.
(f) Preserve and, upon request, make available to
the Board or its agents , for examination and
copying , all payroll records ,-social security payment
records, timecards , personnel records and reports,
and all other records necessary or useful in
determining compliance with this Order , and the
computation of the amount of backpay due pursuant
thereto.
(g) Forthwith mail to the last known address of
each unit employee on its payroll on or after June
14, 1968, a copy of the attached notice marked
"Appendix."' The copies to be so mailed shall be on
forms provided by the Regional Director for Region
7 of the Board, and shall be duly signed by an
authorized officer of Respondent.
(h) Notify the Regional Director for Region 7, in
writing , within 10 days from the date of this
Decision and Order, what steps have been taken to
comply herewith.
The Board hereby reserves to itself the right to
amend or modify this Order, if found necessary by
reason of changed circumstances not now
anticipated.
IT IS HEREBY FURTHER ORDERED thatthe complaint
herein be , and it hereby is, dismissed insofar as it
alleges violations of Section 8(a)(3) of the Act.
'In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals'
Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act as amended,
we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with
United Industrial Workers, Local 399, as the exclusive
representative of all employees in the appropriate unit
at our Warren plant.
WE WILL NOT unilaterally transfer unit work or
discontinue our manufacturing operations or otherwise
make changes in the wages, hours, and other terms and
conditions of employment for the employees in the
appropriate unit without prior bargaining with the
above-named Union.
WE WILL N OT in.any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain collectively with the
Union as the exclusive representative of all employees
in the aforesaid unit with respect to the effects of our
decision to transfer unit work and discontinue
operations as Warren.
WE WILL offer to reinstate to their former or
substantially equivalent positions , without prejudice to
their seniority or other rights and privileges, all
employees who were laid off at the Warren plant on or
after June 14, 1968 , as a result of the transfer of any
unit work (other than work on the Chevrolet truck job)
to Ithaca , discharging if necessary all employees hired
by us since that date. Such reinstatement shall be to
jobs at our Ithaca plant or, if we resume operations at
the Warren plant, to jobs available there. If there are
not a sufficient number of jobs available for all
employees to be offered reinstatement, we shall place
the names of those for whom jobs are not available on
a preferential hiring list and we will offer them
employment in the future before we give jobs to anyone
else.
PLYMOUTH INDUSTRIES, INC. 609
WE WILL pay to employees reinstated at our Ithaca
plant, the necessary travel and moving expenses entailed
in transporting themselves, their immediate families,
and household effects to Ithaca , Michigan.
WE WILL make whole each employee who was laid
off on or after June 14 , 1968, as a consequence of the
transfer of work to our Ithaca plant , as above set forth,
for any loss of earnings suffered as a result of that
transfer . Backpay shall terminate either upon offer of
reinstatement or placement on a preferential hiring list
of the names of those employees for whom there is not
sufficient work available.
WE WILL, if we resume operations at the Warren
plant, reinstate employees in accord with the seniority
provisions of the contract with the Union.
WE WILL, if operations are resumed at Warren,
bargain collectively with the Union as the representative
of all, employees in the appropriate unit.
WE WILL notify the above -mentioned employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
PLYMOUTH INDUSTRIES,
INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 500 Book
Building , 1249 Washington Boulevard , Detroit, Michigan
48226, Telephone 313-226-3200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE J. BOTT, Trial Examiner : Uon a charge of
unfair labor practices filed by United Industrial Workers,
Local 399, herein called the Union , on August 15, 1968,
against Plymouth Industries, Inc., herein called
Respondent or Company, the General Counsel of the
National Labor Relations Board issued a complaint and
notice of hearing dated October 17, 1968, in which he
alleged that Respondent had engaged in unfair labor
practices in violation of Section 8(a)(1),(3),and (5) of the
National Labor Relations Act, as amended , herein called
the Act. Respondent filed an answer , and a hearing was
held before me in Detroit , Michigan , on December 16 and
17, 1968, at which all parties were represented.
Subsequent to the hearing , Respondent and General
Counsel filed briefs which have been carefully considered.
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTION OF THE BOARD
Respondent is a Michigan corporation with its office
and principal place of business in Warren , Michigan,
herein called the Warren plant. Since on or about January
1, 1968, Respondent has also operated a second plant in
Ithaca , Michigan , herein called the Ithaca plant.
Respondent at all times material herein has engaged in the
manufacture and sale of automotive and truck sun visors.
Respondent' s Warren and Ithaca plant are the only
facilities involved in this case.
During the year ending December 31 , 1967, a
representative period, Respondent had a gross revenue in
excess of $500,000 and shipped goods from both its
Warren and Ithaca plants valued in excess of $500,000
directly to points located outside the State of Michigan.
Respondent concedes , and I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), 2(6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Brief Statement of the Question
Whether Respondent moved its manufacturing
operations from Warren to Ithaca and eventually closed
the Warren plant because of discriminatory
considerations , and without bargaining with the Union, all
in violation of Section 8(a)(1), (3), and (5) of the Act.
B. Basic Findings of Fact
In 1965 the Union became the bargaining representative
of production and maintenance employees of Respondent
at the Warren plant and a collective-bargaining agreement
was executed which expired in May 1967. Negotiations for
a new agreement began in March 1967 and continued
through the latter part of August 1967, when a new
contract was reached . The signing of the agreement,
however, was preceded by a strike of approximately
2-weeks duration.
The Ithaca plant, located approximately 130 miles from
the Warren plant , was leased by Respondent as of
September 1, 1967. Production of visors commenced there
on or about January 1, 1968, but it appears that some
equipment and machinery was moved to Ithaca before
that time.
The Union became aware that there was an Ithaca
plant in July 1967 and conversations between the Union
and representatives of Respondent about the existence and
effect of that plant took place during the negotiations for
the last labor contract between the parties. Elmer
Richardson , a union committeeman and an employee of
many years service, testified credibly that since employees
were concerned about what effect the proposed Ithaca
operation might have on their jobs at Warren, the Union
raised the issue during negotiations . According to
Richardson , after the Union representative voiced their
concern about Ithaca , Fordon, then general manager,
assured the Union that the Warren operation had all the
work that it could handle effectively, but because of its
overcrowded condition, surplus or overflow work would be
sent to the Ithaca plant . Richardson said that he and
others knew that the Warren plant was overcrowded, and
when he reported Respondent ' s explanation to the
employees, they seemed content.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Comments were also made about the Ithaca plant
during the last contract negotiations by other company
and union representatives. Richardson recalled that in the
final meeting before the deadlock was broken, the Union's
attorney raised a question about Ithaca, and Respondent's
attorney assured the committee that they had "nothing to
worry about," since the Ithaca plant had no bearing on
the Warren operation or on its employees. Gray, president
of the Union, corroborated Richardson. He testified that
Ithaca and its potential impact on Warren employment
was raised at least twice during the August negotiations
leading to final agreement. In one meeting he asked if
jobs at Warren would be eliminated because of the
contemplated Ithaca operation, and demanded that the
new agreement include Ithaca operations in its coverage,
but Respondent would not agree. In the final meeting, the
Union's attorney made the same proposal, and was turned
down by Respondent's attorney. Nevertheless, according
to Gray, and I credit his undenied testimony, Gillet, an
officer of Respondent, assured the committee that the
only reason for the existence of the Ithaca plant was to
perform overflow or excess work that could not be
handled effectively at the Warren operation.'
On August 25, 1967, the parties signed a new
agreement retroactive to May 1967, for a period of 3
years, and the employees returned to work. The
agreement covers the Warren plant only, and is silent
about operations at Ithaca.
Ray Calcaterra became Production manager of the
Warren plant in November 1967. At this time some of the
employees at Warren were engaged in assembling a sun
visor for Chevrolet trucks. According to Land,
Respondent's president, the Chevrolet truck order
amounted to about 20 percent of Respondent's production
at the time. In November 1967, the Union learned that
components for the Chevrolet visor were being removed
from the Warren plant and shipped to Ithaca, and raised
the subject with Calcaterra, who conceded that the
Chevrolet truck job was being transferred to Ithaca. He
explained, however, that this was being done because the
Warren facility was too crowded for efficient production.
He assured the union committee that the employees at
Warren need not worry about their jobs because the
Company had more than enough work to keep them fully
occupied. In response to an inquiry, he added that the
Chevrolet work was all that would be moved. The union
committee was aware of the crowded conditions in the
Warren plant, and accepted Calcaterra's explanation.
According to Respondent's president, Land, the
Company moved some machinery from the Warren plant
to Ithaca in November 1967. According to the testimony
of the Union's witnesses, it appears that Respondent
moved one of the presses used in its operations to Ithaca
from Warren in November 1967. When Gray, the Union's
president, met with Calcaterra after the employees
complained to him about the move, Calcaterra explained
to him and the union committee that the press had been
sent out for repairs and that Respondent might actually
replace it with a faster press. He assured Gray and the
committee, in response to their inquiries, that the transfer
of the press would not "eliminate jobs" at Warren, but
'Employee members of the union committee , Walasek and Pokorny, also
testified without contradiction that , during the negotiations for the last
contract, questions were asked about the Ithaca plant's potential effects on
Warren employment, and the Union was assured by Fordon , Kovinsky,
and Gillet that it would have no untoward effects on them for there was
more work at Warren than the plant and employees could handle
rather would create more work. The Union again accepted
Calcaterra's explanation for management's decision. In
fact, however, the press involved was never returned to
Warren, but was sent to Ithaca, and was never replaced
by another machine in Warren.
In late December 1967, Union Committeeman
Richardson transported a load of visor components from
Warren to Ithaca, and Land, Respondent's president, rode
back to Warren with him. During the trip, Land told
Richardson that Respondent expected increased business
and that the Ithaca plant would handle surplus work that
Warren was unable to handle.
Production of visors commenced at Ithaca on January
1, 1968, and by February 1, 1968, 22 production
employees were employed there. Employment rose
gradually and by September 1, 1968, 42 employees
appeared on the Ithaca payroll doing the same kind of
work that the employees at Warren had normally done.
On June 14, 1968, Respondent laid off approximately
30 employees at Warren. Committeeman Pokorny asked
Calcaterra if the layoff meant that Warren operations
were being transferred to Ithaca, but Calcaterra replied
that all employees would be recalled to work by August
15, and denied that the Warren operation was being
phased out.
During 1968 Respondent continued to transfer
machinery and other equipment from Warren to Ithaca,
accelerating the movement in the summer of 1968. By
September 1, 1968, employment at Warren had fallen to
34 persons from a high of 101 on January 1, 1968, and
employment at Ithaca had risen to 42 from zero. At the
time of the hearing in this case there were 70 or more
employees working at Ithaca, but only Richardson, the
truckdriver, and a janitor were employed at Warren. The
plant now is used to warehouse the visors which are
produced at the Ithaca plant.
On August 29, 1968, Respondent wrote the Union and
advised it that it was "necessary to discontinue the
operation of the Warren Michigan Plant of Plymouth
Industries, as being economically unfeasible." Respondent
noted that it had had considerable financial losses at the
Warren plant over the last 2 years and had lost certain
business on which it "relied for the continued existence of
its Warren Michigan Plant ...." The Union was further
advised that the Warren plant would close on October 1,
1968, and that Respondent stood ready to meet with the
Union "in order to effectuate an orderly closing of this
plant." The writer concluded by indicating that
Respondent would "do everything possible to assist those
employees who wish our help in finding them new
employment." The Union had no knowledge or advice
prior to receipt of the above letter that the Warren plant
would be closed. The Union had, however, on August 19
filed a grievance with Respondent regarding the transfer
of work to Ithaca, and on August 15, 1968, filed the
unfair labor practice charge in this case.
Respondent made a small profit from the Warren plant
in 1965, but it is clear that since 1966 it has suffered
substantial losses in that operation. Respondent's
president, Land, testified that Respondent's principal
reason for acquiring the Ithaca plant, which was leased on
September 1, 1967, for a term of 12 years, was because
the Company had been losing money at Warren and
believed that much of the loss was caused by the
'These findings regarding the press are in accord with the credited
testimony of Gray, and union committee members Richardson, Walasek,
and Pokorny.
PLYMOUTH INDUSTRIES , INC. 611
overcrowded condition of the Warren installation . Visors
had become bulkier because of style changes over the
years and more floor space was needed to handle
Respondent' s sales volume.
Land also noted other considerations besides inadequate
space which contributed to Respondent ' s economic
problems . The prime factor was increased competition
which required Respondent to constantly bid lower even
though its costs were rising . Despite Respondent' s efforts
to remain competitive , it lost a substantial part of its
share of the market in 1968.
Land, testified that Respondent originally intended to
manufacture only the Chevrolet truck visor at Ithaca,
which amounted to 20 percent of the Company ' s sales and
sold at a very low markup . Production of this item, which
had been run for 6 months at Warren , was begun on
January 1 , 1968, at Ithaca , and completed there . He said
Respondent thought about closing Warren completely
when it learned of the results of its 1968 bidding on 1969
models . This occurred , according to him , in the latter part
of June 1968. It appears from his testimony , which is
corroborated by the testimony of Charles Gillet, vice
president and sales manager , and I so find, that
Respondent learned during March 1968 and again in June
1968 that it was an unsuccessful , or only partially
successful , bidder on certain items , thereby losing a
considerable quantity of its former business , including the
Chevrolet truck line completely.
Land said that the decision to close Warren , which the
loss of orders had precipitated , was made " in June or July
1968." Later he testified that it was "probably made in
the third week in July 1968 . In any case , it was made, and
Elizabeth Shaw , Respondent ' s office manager and
secretary treasurer , said it was made at a meeting of the
Respondent's Board of directors in July 1968.
Land listed other factors which entered into the
decision to close Warren and manufacture at Ithaca. He
noted that Respondent ' s financing costs rose from 6
percent to approximately 13 percent when its financial
reports , disclosed its losses , and this was a considerable
increase in cost because Respondent was borrowing
approximately $400,000 a month. Rent for the Ithaca
plant is, on the other hand , approximately $30,000 a year
less than Respondent pays at Warren . Insurance rates and
taxes are also lower in Ithaca and there is no vandalism,
according to the uncontradicted testimony of Land. He
added that "One of the side features was the fact that
there is a fairly good labor market in Ithaca compared to
the labor market in this area ." Schedules in evidence
showing the comparative wage rates of employees at
Warren and Ithaca indicate that many of the employees at
Ithaca receive at least 50 cents an hour less than those at
Warren did for the same assembly operations.
Based on these factors , including the Company's
substantial financial losses and the recent unsuccessful
bids for orders , Land said Respondent concluded that it
did not have enough work to "fill two plants (and) so the
only thing to do was to move into the plant that appeared
to give us the best chance."
Having made this decision , he wrote to Gray on August
29, 1968 , and announced it to him . He said he did not do
this sooner because he was busy , and he conceded that he
did not believe that he was required to notify the Union
that Respondent intended to close the plant and move its
operations to Ithaca . Land also indicated that the decision
to move was "irretrievable" and that it was "very
doubtful" that anything would have changed Respondent's
decision , "because the volume of business we had wasn't
enough for two places . All you could do was go the
cheapest route."
C. Analysis , Additional Findings, and Conclusions
Regardless of Respondent' s economic justification for
closing out the Warren operation and transferring unit
work to Ithaca , Respondent was nevertheless bound to
bargain with the Union both about the decision and the
effects of such decision.' This Respondent clearly failed to
do.
Respondent had considerable losses at Warren, but
even though it offered to show its financial records to the
Union during 1967 bargaining , it never suggested that it
might have to transfer operations to Ithaca unless the
Union reduced its wage demands or agreed to permit
Respondent to make other savings by eliminating or
combining jobs classifications , for example.
When the Union discovered that there was an Ithaca
plant and raised a question about its possible impact on
unit work, Respondent, as I have found in greater detail
above , assured the Union in bargaining before the
execution of the 1967 contract , and thereafter , when the
Chevrolet truck order was transferred to Ithaca and the
press was moved out of Warren , that Ithaca' s role was
secondary and only to handle overflow work which
Warren ' s facilities and employees could not accommodate,
that the Chevrolet work was all that would be transferred,
that a new press would be purchased and that employees
at Warren would gain rather than lose by management's
actions.
In June 1968 , employees were laid off at Warren, but
employment was not reduced at Ithaca , but actually rose
somewhat, and Warren employees laid off were again
reassured that the plant was not being phased out and that
they all would be recalled in August.
In July and August 1968 , Respondent accelerated the
movement of machinery and equipment to Ithaca and did
not discuss the moves with the Union , and when it finally
notified the Union on August 30 that Warren was closed
as of October 1, which was at least 6 weeks after the
latest date on which Respondent said it made its final
decision, if Land' s and Shaw ' s imprecise fixing of the date
is fully credited , most of the Warren employees had
already been laid off and employment at Ithaca had risen
some more . Not only had the situation so deteriorated
and so radically changed that there remained no adequate
opportunity for effective bargaining about the decisions
and their effects when the Union got notice , but Land also
pretty clearly indicated that the decision was irrevocable.
I conclude on the basis of the above findings and
analysis that Respondent concealed its decision and
delayed the announcement of it to the Union , and violated
Section 8(a)(5) of the Act by refusing to discuss it.
I also find that Respondent did not bargain with the
Union about the effects on employees of its decision to
'Fibreboard Paper Products Corp. v. N L.R B., 379 U.S. 203, Town and
Country Manufacturing Company, Inc. 136 NLRB 1022, enfd. on other
grounds 316 F.2d 846 (C.A. 5); Ozark Trailers, Incorporated, 161 NLRB
561; Adams Dairy, Inc, 137 NLRB 815, enforcement denied 322 F.2d 553
(C.A. 8); Garwin Corporation . 153 NLRB 664, enfd in part and remanded
374 F.2d 295 (C A.D.C.); Standard Handerchief Co., Inc.. 151 NLRB 15;
Royal Planting and Polishing Co, Inc., 160 NLRB 990, enforcement
denied 350 F.2d 191 (C.A 3); Purolator Products , Inc., 160 NLRB 80.
The Board has not accepted the reasoning of the Courts of Appeals in
Royal Plating and Polishing Co., Inc, and Adams Dairy, Inc., which
denied enforcement with respect to the Board ' s Order relating to
management's decision in those cases.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transfer work to Ithaca and close the Warren plant, and
contrary to Respondent's contention in its brief, I find
that Respondent's notification to the Union of Warren's
death gave the Union no real opportunity or actual
invitation to bargain with Respondent about the effects of
the move on unit employees. Not only had most of the
damage been done by August 29 - machinery and jobs
moved and other employees hired at Ithaca - but
Respondent's letter informing the Union about the closing
reveals that the scope of Respondent' s willingness to meet
with the Union was limited to effectuating "an orderly
closing of the plant" and to doing "everything possible to
assist those employees who wish" Respondent's help "in
finding them new employment." This is certainly not
enough. Moreover, Respondent's attitude toward the
transfer of work to Ithaca and its impact on Warren
employees is shown by its letter of August 29, 1968, to the
Union flatly denying the grievance filed by the Union
regarding the transfer of work to Ithaca. By failing to
bargain with the Union about the effects of the transfer of
work and closing of the Warren plant, Respondent
committed an additional violation of Section 8(a)(5) of the
Act.
What has been said to here on the refusal to bargain
also disposes of the suggestion or intimation in
Respondent's brief that the Union was aware of the move
to Ithaca and waived its right to bargain about the
transfer of work and the ultimate closing of the Warren
operations. In brief, as found and discussed above, from
the time the Union learned about Ithaca up to the June
layoff it was assured that its role was a restricted one
which would have no impact on jobs at Warren.' This
sounds more like company estoppel than union waiver,
and, in any case, waiver of a basic right must be clear and
explicit. The 1967 labor agreement is silent about Ithaca.'
Whether Respondent's actions in transferring work to
Ithaca and finally closing the Warren plant and having all
work done at the Ithaca plant amount to discrimination in
violation of Section 8(a)(3) of the Act, as the General
Counsel contends, depends on Respondent's real motive
for doing what it did. As bearing on motive, General
Counsel introduced evidence of certain statements by
Respondent's agents indicating antiunion bias.
Gilbert, a former employee at Warren, testified that
sometime in either May or June 1967, as she was leaving
the plant, Fordon, the then plant manager who is no
longer with the Company, asked her why the employees
did not get a better union to represent them because
Roberts, owner of Respondent, would not continue to put
up with "this s - t of the union there." Fordon did not
testify. Apart from the difficulty in determining what it
was exactly that Roberts might have been bothered about,
I discredit Gilbert, for the evidence does not appear in the
statement she gave the Board agent in the investigation of
this case, and I do not believe her explanation that she
told the Board agent about it, but he failed to include it in
her affidavit. She also testified that she overheard Roberts
tell another employee in August 1967 that he "wouldn't
put up with this G - damn union, that if it took him 10
years he would close the doors." When Gilbert gave her
affidavit to the Board investigator in August 1968, she
was unable to pinpoint Roberts' remark as having
'When negotiations with the Union broke down in August 1967 and a
strike occurred, Respondent in a letter to employees , advised them that
"the proposed Ithaca operation is not being considered so as to displace
jobs at Warren."
'Puerto Rico Telephone Company, 149 NLRB 950, 963-964.
occurred in August 1967, as she did in her testimony, but
stated that it had occurred "within the last year." In
addition, there is no reference to "ten years" in the
affidavit as the time that Roberts would take to get rid of
the Union, if necessary. Roberts did not testify, but I find
that Gilbert was exaggerating , and do not rely on any
evidence she gave in evaluating Respondent's alleged
animus.
Henry, former employee, testified that she overheard
Roberts tell another employee, "shortly after" the strike
in August 1967, that he did not care how long it would
take, "but he would have nobody running his business for
him." Roberts did not testify, and I have no reason to
discredit Mrs. Henry. It should be noted, however, that
the alleged remark was made a year before the Company
moved, it contains no reference to the Union as such, the
other employee to whom the statement was made was
unnamed and not called, and Henry did not hear all of the
conversations.
On the antiunion issue, Richardson, plant
committeeman and member of the negotiating committee,
testified that in the 1967 contract negotiations, during a
discussion about combining job classifications, Fordon
heatedly reacted to the Union's refusal to agree to the
Company's proposal by stating "if that's the case . . . we
will move the whole damn plant to Ithaca." Richardson
said that Kovinsky, Respondent's attorney, "calmed"
Fordon down. As noted earlier, the contract was signed,
and it appears from the record that the Union's position
on job classifications prevailed. Kovinsky testified that he
was the principal negotiator and did not hear Fordon
make any kind of a statement like the one Richardson,
said he did. He added that the job classification problem
was not "that big of an issue." I found Richardson a
credible witness, and I have no reason to doubt that
Fordon made some remark about the possibility of a
move to Ithaca during a heated discussion of a difference
between the parties prior to the execution of the last
contract.
Fordon was replaced by Calcaterra after the strike, and
Richardson testified that Calcaterra made two antiunion
statements to him. Calcaterra asked him about 2 months
before the hearing in this case whether he was still paying
union dues, and added that Richardson was "stupid"
when he answered that he was. The second statement was
made about 2 weeks before the hearing when, in a
discussion about overtime, Calcaterra again asked
Richardson if he was still paying union dues, and then, in
reference to a potential overtime claim, added that the
labor agreement was no longer effective, because there
was no longer a union at Warren.
I find that General Counsel has not established by a
fair preponderance of the evidence that Respondent was
motivated by discriminatory considerations in moving its
operations to Ithaca and finally substituting it totally for
the Warren operation. Respondent had serious financial
losses at Warren. After a small profit in 1965, it lost
$120,000 in 1966, and $210,000 in 1967. During the first 6
months of 1968, the loss at Warren was $75,000, and by
October 1968, it was $150,000. Land and Gillet testified
credibly and impressively about Respondent's difficult
competitive position, severely exacerbated by Canadian
competition, and about additional customer losses, despite
lower bids in the first half of 1968. Respondent's overhead
in Ithaca, apart from its labor costs, is substantially lower
than it was in Warren.
As indicating union hostility and an intention to avoid
bargaining with the Union as the factors which persuaded
PLYMOUTH INDUSTRIES, INC. 613
Respondent to use the Ithaca plant and close the Warren
facility, there are the few verbal indications of hostility
found above . I have also found that for some time
Respondent concealed its accelerated transfer of
machinery and equipment to Ithaca and refused to
bargain with the Union about its decision and its effects
on unit employees . There is also no question in my mind
that the lower wage rates which Respondent is paying its
unorganized employees in Ithaca, as well as the flexibility
and freedom it undoubtedly has in establishing job
classifications , assigning work and doing the many other
things that the phrase "management prerogatives"
includes , were in the minds of Respondent 's officers and
managers when the move was under consideration. There
is probably much rationalization involved in describing the
result found when motive is sought, and realistically there
is no clear border which separates the employer who
moves to get lower costs , including lower labor costs,
without bargaining with the Union, but without ever
expressing anything but praise for the principles of
collective bargaining , and the one who, similarly
motivated , tells it like it is or at least how it seems to
him. Weighing Respondent ' s distant and isolated
expressions of hostility and its violation of Section 8(a)(5)
of the Act against its solid economic and legal
justification for moving , if it had bargained to an impasse
on that issue , I find and conclude that the overriding
consideration in Respondent ' s decision was "economic"
not "discriminatory ." Respondent , therefore, did not
violate Section 8(a)(3) of the Act as alleged in transferring
work to Ithaca and finally closing the Warren plant.'
Respondent commenced production at Ithaca on or
about January 1, 1968, and from then on to October 1,
1968, when it finally closed the Warren plant, it moved
and continued to move machinery , equipment and work to
Ithaca . The complaint alleges that the commencement of
operations at Ithaca , and the transfer of work until the
closing of Warren, was a violation of Section 8(a)(5), in
that it was all done without notice to the Union. I have
already found that the transfer of work and closing the
Warren plant was a violation of Section 8(a)(5) of the Act
in the circumstances , but before a remedy can be fairly
devised it must be determined when the refusals first
occurred . This is not too easily done on this record, as
will be explained, but in my opinion it is safe to find that,
at the latest , Respondent ' s first refusal to bargain about
the transfer of unit work was in June when a substantial
number of employees were laid off at Warren , although
employment remained stable , or rose, at Ithaca.
It cannot be found that the establishment of the Ithaca
plant on January 1 as a producing facility was an unfair
labor practice because, if for no other reason , the charge
in this case was filed on August 15, 1968, much more than
6 months after the event . In addition, even though one
might question why an employer rents for a long term a
plant equal in size to his principal plant to do overflow or
extra work , as Respondent explained it to employees, the
record will not support a finding that Respondent's
asserted reason for renting the Ithaca plant and beginning
operations there on the Chevrolet truck job was other
than it said it was, and was really a long-range strategem
for ultimate closing of the entire Warren operation. The
`The inherent effect of the refusal to bargain which directly affected
employment at Warren might have been to discourage employees in the
exercise of their rights guaranteed them in Section 7 of the Act, but in
Adams Dairy, Inc, 137 NLRB 815, the Board deemed it unnecessary to
consider that issue since the remedy would be the same in any case.
Warren plant was overcrowded in January 1968, as union
witnesses candidly conceded, and the first work moved to
Ithaca was the Chevrolet job which was a major part of
Respondent' s production.
On Respondent's assurances that the Chevrolet truck
visor item was the only one Respondent contemplated
having done in Ithaca , at least at the time , and that
Warren employees would not suffer as a consequence, the
Union acquiesced in this Decision, and although I have
found that the Union did not thereby waive any rights to
bargain about transfer of other work, not to mention total
elimination of jobs, I cannot find on this record that the
transfer of Chevrolet truck work and the machinery
needed to produce it, or the hiring of employees to
perform that work at Ithaca, was a refusal to bargain as
alleged.
But the layoff of Warren employees in June 1968 is
something else. According to Land, the Chevrolet truck
job ran 6 months at Warren and 6 months at Ithaca. If
that is so, then it was completed by June 30. Yet
Respondent laid off approximately 30 Warren employees
on June 14, did not bargain with the Union about it,' did
not offer the employees work in Ithaca, despite its
promises that the Ithaca operation would have no
untoward effect on them, kept its Ithaca staff intact, and
then, while unit employees were in layoff status, began to
move more equipment to Ithaca in June, July and August,
all without consulting the Union. I find that by laying off
employees on June 14 without discussion with the Union
about its decision or its impact, and by continuing to
phase out Warren and build up Ithaca thereafter,
Respondent committed its first discernible or provable
refusal to bargain. The remedy will be constructed on that
finding.
In addition to finding that Respondent's first visible
refusal to bargain took place on June 14, 1968, when it
laid off a substantial number of employees, I also find
that Respondent's decision to discontinue Warren as an
operating plant took place earlier than Land said it did.
Land was not precise but somewhat vague about the date
of the decision. He first said it was "June or July" and
then "probably" made in the third week of July. Shaw,
Respondent 's secretary-treasurer, said it was made at a
meeting of the Company's board of directors "sometime
in July," perhaps around the 12th, "as near as I can
remember." No one produced a minute of the board of
directors. I think it incredible that a decision as important
as this was suddenly made on some unfixed date in July at
a meeting of the board of directors . Some thinking,
planning and discussion was undoubtedly necessary prior
to that time. I am unable to fix the date with any more
certainty than Respondent's witnesses , but I am convinced
that it occurred before they said it did, and this is some
evidence that the June layoff began the real phasing out of
the Warren operation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent' s activities as set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close , intimate, and
substantial relation to trade, traffic and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
'here was nothing crowded about the Warren plant on June 14, or
thereafter, to act as continued justification for work transfer
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
The General Counsel requests that, among other things,
Respondent be required to return to the Warren plant the
unit work previously performed by employees in Warren,
and reopen the plant and resume production under the
terms and conditions of the existing labor contract.
Although the Board has this power , to be exercised if the
circumstances warrant it , nevertheless , as I understand the
cases, the Board ' s conventional remedy in this type of case
is to give the employer an election either to return or
remain at the new location and provide alternative
remedies depending on the choice the employer makes. 8 I
will not , therefore , recommend that Respondent be
ordered to return from Ithaca all work that the Warren
plant can handle and offer unit employees employment
there . As a minimum , Respondent should , however, be
required to restore the status quo as nearly as possible and
disentangle the effects of the unfair labor practices which
it committed by offering to employees who lost work as a
consequence of the transfer of unit work to Ithaca, other
than the Chevrolet truck order , and were laid off on or
after June 14, 1968 (the date of the first apparent refusal
to bargain which can be fixed with any precision),
immediate and full reinstatement at its Ithaca plant, or at
Warren, if Respondent elects to resume operations there,
discharging if necessary, all persons hired after that date.
Reinstatement of employees shall be to their same or
substantially equivalent positions , without prejudice to
their seniority or other rights and privileges, if said
employees notify Respondent within 20 days from the day
it notifies the Regional Director that it will comply with
the Board ' s Order , that he or she desires such
reinstatement . Respondent shall pay to each employee so
reinstated, all necessary and proper items of expense in
moving themselves , their immediate families, and their
household effects to Ithaca . In addition , Respondent will
be required to pay to each of the aforementioned
employees backpay for the period beginning with their
layoff and terminating when any of the following events
shall first occur : ( 1) upon their reinstatement by
Respondent ; (2) upon their failure to notify Respondent
that they desire reinstatement , (3) when they obtain, or
did obtain, other substantially equivalent employment; (4)
when they are placed on a preferential hiring list in line
with seniority for hiring at Ithaca if there is not work
enough available for all those who apply . Such backpay
shall be computed in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289, and shall
bear interest at 6 percent per annum computed as
provided in Isis Plumbing & Heating Co ., 138 NLRB
716. Backpay to any laid off employee shall also cease
upon his or her reinstatement to the same or substantially
equivalent employment at Warren , if production is
resumed there.
Respondent shall preserve and, upon request, make
available to the Board or its agents , for examination or
copying , all payroll and personnel records necessary or
useful in determining compliance with the Board ' s Order,
and the computation of backpay due, as herein provided.
Since Respondent no longer operates its Warren plant,
the customary notices to employees should be mailed to
employees at their homes.
It will also be recommended that the Board reserve to
itself the right to amend or modify its order to provide for
events which have not been anticipated.
Upon the foregoing findings of fact , and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), 2(6), and (7) of the
Act.
2. The Union is a labor organization within the
meaning of the Act, and at all times material was the
exclusive collective-bargaining representative of all
production, receiving , truckdrivers, and maintenance
employees , excluding executive , superintendent , clerical
employees , professional employees , guards, and other
supervisory employees of Respondent, employed at its
Warren plant.
3. By transferring unit work to Ithaca, by laying off
unit employees on and after June 14, 1968, without
offering employment at Ithaca, by closing the Warren
operation on or about October 1, 1968, all without
bargaining with the Union about its decisions and about
the effects of its decisions , Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
4. Respondent did not violate Section 8 (a)(3) of the Act
as alleged in the complaint.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication.]
'Standard Handerchief Co , 151 NLRB 15, 19; Garwin Corporation, 153
NLRB 664, 665.