St. Marys Foundry Co.

National Labor Relations Board - Board Decisions

Jun 12, 1987

284 N.L.R.B. 221 (N.L.R.B. 1987)

ST. MARYS FOUNDRY 221,
St. Marys Foundry Company and United Electrical,
Radio and Machine Workers of America, and
its Local 763 and St. Marys Foundry, Inc.,
Party in Interest. Case 8-CA-17369
12 June 1987
DECISION AND ORDER
BY MEMBERS BABSON, STEPHENS, AND
CRACRAFT
On 16 December 1985 Administrative Law
Judge Thomas D. Johnston issued the attached de-
cision. The Party in Interest and the General
Counsel filed exceptions and supporting briefs, the
Charging Party filed a brief in opposition to the
Party in Interest's exceptions and in support of the
General Counsel's exceptions, and the Respondent
filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 1 and
conclusions, 2 to modify the remedy, 3 and to adopt
the recommended Omler.4
The Party in Interest has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
In agreeing with the judge that the Respondent failed to meet its obli-
gation to bargain in good faith over the effects of its decision to close,
Members Babson and Cracraft would find that the Board need not pass
on the judge's finding that the Respondent failed to give timely notice of
the decision to close.
2 We modify the first phrase of par. 6 of the judge's Conclusions of
Law to conform to the judge's findings.
3 In accordance with our decision in New Horizons for the Retarded,
2.83 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.0 § 6621
4 The Party in Interest (SMF, Inc ) has objected to being held liable,
as a successor under Golden State Bottling Co. v. NLRB, 414 U S. 168
(1973), for remedying the unfair labor practices committed by the Re-
spondent. It argues, inter alia, that such liability is barred because the
number of employees of the Respondent whom it hired does not consti-
tute a majority of its own work force. (SMF, Inc. does not, however,
challenge the judge's finding that it hired "a large number" of the Re-
spondent's employees.) We find no ment to this exception. When an em-
ployer acquires a business from another, with knowledge of the seller's
unfair labor practices, and operates that business "in substantially un-
changed form" (Perma Vinyl Corp, 164 NLRB 968, 969 (1967), enfd. sub
nom. US. Pipe ‘4 Foundry Co. v. NLRB, 398 F.2d 544 (5th Cir. 1968)), a
finding that the old employees constitute a majority in the purchaser's
work force is unnecessary for the Imposition of at least monetary reme-
dies. Bell Ca, 243 NLRB 977, 978-979 (1979); Belhngham Frozen Foods,
237 NLRB 1450 (1978), enfd. in relevant part 626 F.2d 674, 681 (9th Cir.
1980) (with respect to unlawfully discharged employee in a unit where
the successor did not hire a majority of the former employees, court af-
firmed the Board's reinstatement and backpay order only concerning
backpay liability). To the extent that Airport Bus Service, 273 NLRB 561
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
6:
"6. By failing and refusing to give timely notice
to and bargain with the Union about the effects on
the unit employees of ceasing its operations and
closing its St. Marys, Ohio facility on 23 December
1983; by refusing since about 17 February 1984 to
furnish the Union with a complete copy of the
asset purchase agreement between the Respondent
and St. Marys Foundry, Inc., an accounting of the
proceeds realized from the sale pursuant to the
asset purchase agreement between the Respondent
and St. Marys Foundry, Inc., and an accounting
and full explanation of how the proceeds of the
sale between the Respondent and St. Marys Found-
ry, Inc. were distributed, all of which information
was relevant and necessary to the Union's obliga-
tion in administering its collective-bargaining
agreement and processing grievances; and by its re-
fusal since about 8 February 1984 to arbitrate
grievances filed by the Union and thus its repudi-
ation of the grievance-arbitration provision of the
collective-bargaining agreement, the Respondent
has engaged in unfair labor practices in violation of
Section 8(a)(5) and (1) of the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, St. Marys
Foundry Company, St. Marys, Ohio, its officers,
agents, successors, and assigns, and Party in Inter-
est St. Marys Foundry, Inc., St. Marys, Ohio, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
(1984), can be read to imply that the predecessor's employees must con-
stitute a majority of the new employer's work force before it can be held
responsible for its predecessor's unfair labor practices under Golden State,
that implication is disavowed
Of course, Golden State holds that if the purchaser does not hire a ma-
jonty of the predecessor's employees and is thus not a successor within
the meaning of NLRB v. Burns Security Services, 406 U.S. 272 (1972), it
"will not be bound by an outstanding order to bargain issued by the
Board against the predecessor nor by any order tied to the continuance
of the bargaining agent in the unit Involved." Golden State, supra, 414
U.S at 184 fn. 6. We do not believe our order here runs afoul of that
prohibition. Only the Respondent is ordered to bargam over the effects
of its shutdown; SMF, Inc. is made jointly and severally liable only for
the backpay that would be owed under the formula set out in Transmar-
me Navigation Corp, 170 NLR13 389 (1968). This purely monetary obliga-
tion does not "bind" SMF, Inc. to the order to bargain nor is it "tied to
the continuance" of the Union as a bargaining agent in SMF, Inc.'s oper-
ation Cf. Bellingham Frozen Foods v. NLRB, supra, 626 F.2d at 681.
Should the Respondent's bargaining over effects obligate the Respondent
to actions other than monetary relief, SMF, Inc. would not be bound
We agree with the judge that the remedy should not include a visits-
tonal clause. We do so because we find such a clause unnecessary in this
case, not because such remedy is unavailable in Board proceedings.
284 NLRB No. 30
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Charles Z Adamson, Esq., for the General Counsel.
Lawrence Fischer, of Greenville, South Carolina, for the
Respondent.
Leonard D. Polletta and Robert Z Lewis, Esqs., of New
York, New York, for the Charging Party.
Robert J. Brown, Esq. (Smith & Schnacke), of Dayton,
Ohio, for St. Marys Foundry, Inc.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge.
This case was heard on 8 through 10 July 1985 at Lima,
Ohio, and on 8 October 1985 at Dayton, Ohio, pursuant
to a second amended charge' filed on 25 April 19842 by
United Electrical, Radio and Machine Workers of Amer-
ica, and its Local 763 (the Union) and an amended com-
plaint issued on 26 March 1985.
The amended complaint alleges St. Marys Foundry
Company (the Respondent) violated Section 8(a)(1) and
(5) of the National Labor Relations Act by closing its St.
Marys, Ohio facility and ceasing all operations without
timely notice to the Union and without having afforded
the Union an opportunity to negotiate and bargain as the
exclusive representative of Respondent's unit employees
with respect to the effects of such acts and conduct; by
failing and refusing to furnish the Union with certain in-
formation as requested by the Union that was necessary
and relevant to the Union's performance of its function
as the exclusive bargaining representative of the unit em-
ployees; by repudiating the grievance-arbitration provi-
sion of the collective-bargaining agreement by advising
the Union it was refusing to arbitrate and it would be im-
possible to arbitrate grievances filed by the Union alleg-
ing the Respondent violated the collective-bargaining
agreement's "successors and assigns" clause by failing to
negotiate assumption of the collective-bargaining agree-
ment as part of the sales contract between the Respond-
ent and St. Marys Acquisition Corp., later called St.
Marys Foundry, Inc. (St. Marys, Inc.) and a grievance
alleging the Respondent terminated unit employees with-
out just cause or prior notification to the Union; and by
terminating the pension plan covering unit employees
without prior notice to the Union and without having af-
forded the Union an opportunity to negotiate and bar-
gain as the exclusive representative of Respondent's unit
employees with respect to such acts and conduct and the
effects of such acts and conduct.
The Respondent in its answer dated 4 April 1985,
which was amended at the hearing, denies having violat-
ed the Act as alleged. However, the Respondent does
admit it closed its St. Marys facility and ceased all oper-
ations without giving any prior formal notice to the
Union; it refused to furnish the Union with the informa-
tion the Union had requested; and it denied the griev-
ances and refused to arbitrate the issues raised by the
'Union on the basis the issues were not interpretable by
the contract and Respondent could not, in any event,
pay half the cost of arbitration.
I The original charge was filed on 15 February 1984.
2 All dates referred to are in 1984 unless otherwise stated
The amended complaint also alleges St. Marys, Inc.,
with notice of Respondent's potential liability to remedy
its unfair labor practices in the instant case through Re-
spondent's president and plant manager, Larry Dine, pur-
chased Respondent's business, and has continued to carry
the business on without significant interruption or sub-
stantial changes in the method of operation and is a suc-
cessor3 of Respondent. St. Marys, Inc. is alleged by the
General Counsel as a successor to the Respondent for
purposes of holding it jointly and severally liable with
the Respondent for remedying certain unfair labor prac-
tices found against the Respondent.
St. Marys, Inc. denies it is a successor to the Respond-
ent or responsible for remedying any unfair labor prac-
tices found against the Respondent
The issues involved are whether the Respondent vio-
lated Section 8(a)(5) and (1) of the Act as alleged by un-
lawfully failing to give timely notice to or affording the
Union an opportunity to negotiate and bargain over the
effects on the unit employees of closing its St Marys,
Ohio facility and ceasing all operations; refused to fur-
nish the Union with certain information requested; repu-
diated the grievance-arbitration provision of the collec-
tive-bargaining agreement; and unilaterally terminated
the pension plan covering unit employees. An additional
issue is whether St. Marys, Inc. is a successor to and
liable with Respondent for remedying certain unfair
labor practices found against the Respondent.
On the entire record in this case, from my observa-
tions of the witnesses, and after due consideration of the
briefs filed by the parties, 4 I make the following2
FINDINGS OF PACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a corporation with its office and place of
business located at St. Marys, Ohio, was engaged in the
business of manufacturing iron castings until about 23
December 1983. It annually, in the course of its oper-
ations, sold and shipped products, goods, and materials
valued in excess of $50,000 from its St. Marys, Ohio fa-
cility directly to points located outside the State of Ohio.
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Electrical, Radio and Machine Workers of
America, and its Local 763 are each labor organizations
within the meaning of Section 2(5) of the Act.
3 There is no allegation or contention made that St. Marys, Inc as a
successor is obligated to recognize and bargain with the Union as the
representative of its own employees
4 The Respondent did not file a brief.
5 Unless otherwise indicated the findings are based on the pleadings,
admissions, stipulations, and undisputed evidence contained m the record
that I credit.
ST. MARYS FOUNDRY 223
III. THE UNFAIR LABOR PRACTICES
A. Background and the Bargaining Unit
Respondent, until about 23 December 1983, operated a
facility located at St. Marys, Ohio, where it was engaged
in the manufacture of iron castings. Included among its
officials and supervisory personnel were President and
Plant Manager C. Lawrence Dine, also referred to as
Larry Dine, Vice President Lawrence Fischer, Manager
of Personnel and Safety Bruce Bubp, Office Manager
Douglas Schmidt, and Sales Manager Mark Dine.
The Respondent's employees were represented by the
Union with which it had had successive collective-bar-
gaining agreements covering them. The most recent
agreement, effective by its terms from 23 August 1981
through 25 August 1984, covered employees in the fol-
lowing described unit:
All production and maintenance employees, pattern
chasers and truck drivers employed by the Re-
spondent at its St. Marys, Ohio foundry, excluding
all office clerical employees, foremen, assistant fore-
men, salaried employees, and all professional em-
ployees, guards and supervisors as defined in the
Act.
This is an appropriate unit for purposes of collective
bargaining within the meaning of Section 9(b) of the
Act. The Union at all times material has been the exclu-
sive representative of Respondent's employees in the
above-described unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
The Respondent was owned by the estate of Hans
Fischer. It had been purchased by Hans Fischer in 1974
from the previous owners, who included the family of
Larry Dine along with other investors.
For several years prior to December 1983 Respond-
ent's sales had declined. Its employee complement also
dropped from approximately 170 unit employees in 1981
to about 25 to 30 employees in 1983. This decline in busi-
ness was attributable to drops in the machine tool indus-
try and the oil industry that the Respondent serviced.
During 1983 efforts were made to sell the Respondent.
Among the interested purchasers were Larry Dine and
other investors with him.
B. Respondent's Refusal to Give Notice to or to
Bargain Over the Effects of Closing its Facility
Beginning about early November 1983 the Union's
local president, James Walter, after seeing articles in the
local newspaper about the Respondent trying to receive
Government grants to have employees buy the facility,
attempted to arrange a meeting with President Dine
through Production Manager Mark Dues and Personnel
Manager Bubp. The reasons Walter gave them for want-
ing the meeting was to discuss the articles and the
Union's concern about closing or selling the plant and if
the facility was sold whether the Union would be recog-
nized under the successors and assigns clause of the col-
lective-bargaining agreement.
On 5 December 1983 President Walter testified Presi-
dent Dine asked Walter what they wanted to meet
about, whereupon he informed Dine the Union wanted
to know what would happen if the plant closed, and
stated under the successors and assigns clause the Union
had the right to be in on that kind of arrangement.
Dine's response was that nothing had been settled as far
as selling the plant, which had not been sold, and he
denied knowing anymore about it than the Union did
and further said there would be no sense in meeting.
President Dine acknowledged Walter mentioned the
Union was concerned about some newspaper articles dis-
cussing closing or selling the plant and requested a meet-
ing. However, Dine stated he informed Walter there was
no reason to meet because he could not tell Walter any-
thing because there was nothing to be reported.
Between 5 and 23 December 1983, whenever President
Walter and Chief Steward Todd Miller asked Personnel
Manager Bubp what was going on, Bubp denied know-
ing anything.
On 23 December 1983 Vice President Fischer contact-
ed President Dine by telephone. Although Dine was the
chief executive officer in charge of Respondent's day-to-
day operations, he reported to Fischer, who only occa-
sionally visited the facility. After discussing the Re-
spondent's operations, as they did almost every week,
Fischer instructed Dine to close the foundry that day,
terminate the employees, prepare final paychecks for ev-
eryone, and include any accrued vacation or other bene-
fits they would have been entitled to under the various
employee programs in effect at the time. According to
Fischer, he also asked Dine what must be done about
employees' severance, whereupon Dine informed him the
collective-bargaining agreement defined what they had
to do and what kind of notice had to be given and Dine
said he would see that was done. Dine also stated Fisch-
er told him to advise the union committee that Fischer
would meet with them on 28 December 1983.
Both Fischer and Dine acknowledged Fischer did not
instruct Dine to bargain with the Union over the effects
of the closing.
Vice President Fischer's reasons for closing the facility
were that there was not enough business or cash to con-
tinue operating. Prior to instructing Dine to close the fa-
cility, Fischer had made the decision to close in consulta-
tion with and on authorization of Attorney Carter Bled-
soe, who was then the executor of the estate of Hans
Fischer.
That same day following the telephone conversation
between Dine and Fischer, Dine called the union repre-
sentatives, including Local President Walter and Chief
Steward Miller into the office, where representatives of
Respondent including Personnel Manager Bubp and
Office Manager Schmidt were present. Dine informed
them the facility would be closed at the end of third shift
that day and all the employees would be terminated and
for them to turn in their equipment. Dine mentioned
Fischer would meet with the committee on 28 December
1983. Pursuant to Walter's inquiry Dine informed them
the facility had not yet been sold.
President Dine acknowledged at the meeting there
were no discussions or arrangements made about bar-
gaining with the Union concerning the effects of closing
224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the facility. Dine also denied the Union made any such
request at the meeting.
After meeting with the Union's representatives, Presi-
dent Dine held a meeting with the employees that same
day and announced to the employees the decision to
close the facility that same day.
The Respondent's facility was closed on 23 December
1983 and all its employees except for some guards hired
to protect the property were terminated.
According to Vice President Fischer, at the time the
decision was made to close the Respondent's facility the
sale of the Respondent to Larry Dine and his group of
investors was a realistic possibility because they and the
banks, which held the mortgages on Respondent's prop-
erty, had apparently worked out a satisfactory arrange-
ment to purchase the property. President Dine acknowl-
edged he and his group had been attempting to purchase
the Respondent and had made an offer in September
1983, but were unable at that tiine to close the deal be-
cause they were unable to get a: state grant. Between late
November and late December 1983, Fischer stated he re-
ceived various drafts of k proposed agreement and had
discussions with Dine's attorney about the sale of the Re-
spondent to Dine and his group of investors.
Arrangements were Made between Vice President
Fischer and President Dine on 23 December 1983 for
Dine to continue to have access to Respondent's facility
after it closed for purposes relating to the contemplated
sale of Respondent to Dine and his group of investors.
On 28 December 1983 a meeting was held in Respond-
ent's conference room between the Respondent and the
Union. The Union's International representative, Pamela
Morin, who attended the meeting and acted as the
Union's spokesperson, identified the Respondent's repre-
sentatives at the meeting as Vice President Fischer,
President Dine, and Personnel Manager Bubp. Present
for the Union were the Local's officers, President
Walter, Vice President Jerry McEldowney, Financial
Secretary Vernon Koeper, Recording Secretary Jerry
Chilcoat, Chief Steward Miller, and Pamela Morin.
Morin's version of the meeting was that after she asked
Fischer what was going on, Fischer said the owner, who
he identified as the Fischer estate, had decided to close
the foundry When Morin protested the Union should
have been notified of the foundry closing in a more
timely manner, Fischer's response was the Union had
been notified only minutes after President Dine vvas noti-
fied on 23 December. Pursuant to Morin's inquiry
whether they had plans to sell the plant and if there was
a prospective buyer, Fischer indicated President Dine,
along with a group of businessmen, was trying to work
something out. Morin stated President Walter asked Dine
if he was able to buy the plant whether the Union would
be recognized under the successors and assigns clause,
whereupon Dine's response was there were too many
things up in the air to answer that at the present time.
Morin told Fischer one reason for notifying the Union of
the closing was there was a legal obligation to bargain
with the Union over the effects of the plant closing.
Fischer questioned Morin's statement and asked Morin
what she meant. Morin responded by saying vvhen the
plant closes they have to negotiate the effects such as
severance pay, pension, and things like that. However,
Fischer said any benefits coming to the employees who
were terminated would be the same as those coming to
any terminated employee under the terms of the con-
tract. When Morin asked Fischer if he was referring to
employees under the contract who had been terminated
for just cause, Fischer replied he was. Morin then ex-
plained there was a difference between employees termi-
nated for just cause and employees terminated because
the plant closed.
During the meeting Morin gave Fischer, Dine, and
Bubp each copies of a letter the Union had prepared and
said they were going to proceed as though the obligation
would be met and they had some questions they would
like answered. Dine, Bubp, and Fischer then read the
letter. This letter from the Union dated 28 December
1983 and addressed to the Respondent made reference to
the Respondent ceasing its operations and reminded Re-
spondent it had a legal obligation to negotiate with the
Union any changes affecting the bargaining unit. It also
stated the Union would discuss and establish mutually
convenient times for those negotiations. Prior to such
meetings, however, the letter stated the Union 'wOukl
need certain information to prepare itself to represent its
members and requested answers to the following ques-
tions:
(1) What is the present status of the health and
medical insurance coverage? How long will the em-
ployees who were covered on Friday, December
23, 1983, continue to be covered? If coverage is to
lapse, will provisions be made for employees to
continue coverage on an individual basis if they so
desire? Are those employees who are still owed
payments under S & A or hospitalization correct in
assuming those payments will be made?
(2) Will the following be included in the pay-
checks of December 30, 1983:
(a) the holidays of December 24 and Decem-
ber 26, as provided by the contract, including
any bonus earned,
(b) vacation pay due the employees,
(c) personal holidays due the employees,
(d) payment of double-time for all hours
worked after Midnight, December 23, 1983, plus
holiday pay for those working third shift,
(e) birthday holidays due the employees.
(3) What, if any effect, will the "ceasing of oper-
ations" on December 23, 1983, have on the January
1, 1984, retirements of Forrest Goodwin and Gerald
Berry?
In addition, the Union's letter requested a written state-
ment of the Company's intentions regarding the future of
St. Marys Foundry, which should include, but not neces-
sarily be limited to, answers to the following:
(1) Exactly just what decision has been made
about the Foundry'? When was the decision, made?
What were the reasons for that decision?
(2) Does the Company Plan to file under Chap-
ters 7, 11, or 13 of the Federal Bankruptcy Act?
ST. MARYS FOUNDRY 225
(3) What plans have been made for the plant and
the equipment and castings? Are there plans to lease
the plant, equipment and/or castings? Or, are there
plans to sell the same? If so, have prospective les-
sees or buyers been found? Have these plans been
fmalized? If not, when is finalization expected to
occur? Who are the prospective buyers or lessees?
(4) What, if any, plans have been made to reopen
St. Marys Foundry?
After Respondent's representatives read the letter,
Morin stated she asked them if they were in a position to
answer the first three questions. They indicated they
were and their answers to all three questions were the
employees would receive anything coming to them
under the contract that would be coming to any termi-
nated employee. Concerning question 3, the Union was
assured the retirement of the two employees, Forrest
Goodwin and Gerald Berry, on 1 January 1984 would
not be affected. With regard to the remaining questions,
the Union was informed it would be receiving written
answers from Fischer within a 2-week period.
Morin testified upon suggesting they should set up
some dates for future meetings to negotiate the effects of
closing, Fischer informed them it would not be necessary
because the Respondent was under no obligation to ne-
gotiate effects. According to Morin she asked Fischer at
least three times during the meeting to bargain over the
effects of closing the facility.
Morin denied any mention was made at the meeting
about an asset purchase agreement for the sale of the Re-
spondent being executed that day.
Morin stated the meeting was originally scheduled for
10 a.m. However, on arriving at Respondent's facility,
the union committee was informed by Office Manager
Schmidt, Fischer had not arrived due to the weather.
After being informed that afternoon Fischer had arrived,
the meeting was held from about 4 until about 430 p.m.
Union President Walter corroborated Morin's testimo-
ny regarding who attended the meeting and what tran-
spired. He specifically identified Fischer, Dine, and Bubp
as being present for the Respondent. Walter also stated
that on at least two occasions Morin requested the Re-
spondent to bargain over the effects of closing the plant,
and Fischer told them as far as he was concerned all the
employees were terminated and there was nothing to
bargain.
Vice President Fischer also identified the Respondent's
representatives at the meeting held on 28 December 1983
with 1, the Union included, besides himself, President Dine
and Personnel Manager Bubp, who both participated.
Present for the Union were International Representative
Morin and Local President Walter along with several
other representatives who he did not know.
Fischer admitted making some of various statements in
the meeting attributed to him by both Morin and Walter.
Fischer acknowledged Morin gave him a copy of the
Union's letter and also informed him he had a legal obli-
gation to bargain or negotiate with the Union over the
effects of the closing. However, Fischer said he told her
he did not know they were going to close the foundry
until a week prior to the closing and indicated he was
unaware of such a legal obligation. On being asked at the
hearing whether Fischer also said he had no legal obliga-
tion to negotiate the effects of the closing with the
Union because he had terminated all the employees,
Fischer said he did not recall saying it and said he did
not think he said it. However, Fischer did not specifical-
ly deny making such a statement. Fischer also informed
them a decision had been made to close the foundry for
financial reasons and he had instructed Dine to close the
foundry down and terminate all the employees. When
Morin asked if they were going to sell the foundry,
Fischer said it had not been sold but they were going to
sell it.
Walter then asked Dine whether he was involved in
buying the Company and Dine replied he was. Fischer
then said Dine and a group of local businessmen were
prepared to buy it, but the deal, which should be final-
ized by late January 1984, was still a long way from
being completed.
Fischer also acknowledged Morin asked him about the
first three questions on the Union's letter. Although
Fischer first stated he could not recall whether any re-
sponses were given at the meeting, he later stated Morin
asked him about insurance coverage, whereupon he re-
sponded the insurance coverage would be whatever the
contract provided for the terminated employees. Fischer
told them personal holidays and birthday holidays would
be paid if they were due under the contract. Fischer also
said ceasing operations would have no effect on the re-
tirements of Forrest Goodwin and Gerald Berry on 1
January 1984. Fischer denied recalling any specific dis-
cussions at the meeting on other questions raised in the
letter. According to Fischer, he promised to reply to the
Union's letter within a couple of weeks. Fischer denied
there was any discussion at the meeting of the successors
and assigns clause contained in the contract.
To the extent the testimony of International Repre-
sentative Morin and President Walter concerning the
meeting conflicts with that of Vice President Fischer, I
credit Morin and Walter who appear more positive than
Fischer about what transpired at the meeting.
Both President Dine and Personnel Manager Bubp ac-
knowledged being at the Respondent's facility on 28 De-
cember 1983 and knowing about the meeting scheduled
with the Union. They also acknowledged seeing Vice
President Fischer at the facility that day, and Dine said
he thought Fischer met with the union representatives in
the conference room. However, both Dine and Bubp
denied they attended the meeting held between Fischer
and the Union.
According to Dine, before Fischer went to the meet-
ing, Fischer informed Dine he had locked his keys in his
automobile and requested Dine to get them out for him.
Dine then proceeded to do this by contacting the police,
an automobile dealer, and finally a locksmith. Dine
stated that as they were paying the locksmith the meet-
ing with the Union ended.
Bubp testified he arrived at the facility about 3:30 p.m.
and stayed there about an hour. While there Bubp said
he talked a little bit with Dine, who was in Dine's office
with Office Manager Schmidt and Attorney Newhart.
226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On getting ready to leave Dine's office, where he spent
about a half an hour, Fischer came into the office and
asked Dine for a minute book. Bubp admitted while he
was in Dine's office that Dine was in and out of the
office.
Both Dine and Bubp denied they were still employed
by the Respondent on 28 December 1983. Bubp, who
gave his reason for being at the facility that day as being
because Fischer might sign an asset purchase agreement
for the sale of Respondent, contended he was terminated
on 23 December 1983 when the facility closed. Dine
claimed he was terminated on 25 December 1983, which
was the end of Respondent's year based on statements
made by Fischer, who he said also asked them to look
after things there until Fischer could make arrangements
with them. Vice President Fischer's position was all the
employees, including Dine, were terminated on 23 De-
cember 1983. However, he denied there was any discus-
sion about Dine resigning as an officer or director of the
Respondent.6
Three other persons, including Sales Manager Mark
Dine, Office Manager Schmidt, and a local locksmith
Jack Hansborough, also testified they were at the Re-
spondent's facility on 28 December 1983. Both Mark
Dine, who is the nephew of President Dme, and Schmidt
also denied they were still employed by the Respondent
at the time.
Mark Dine stated Fischer arrived at Respondent be-
tween 2:30 and 3 p.m. to attend the meeting scheduled
with the Union, which he said ended about 4:30 p.m.
Mark Dine, however, denied seeing any members of the
Union's committee that day or knowing whether Fischer
actually attended the meeting. Although Mark Dine
denied President Dine or Bubp went to the union meet-
ing that day, he said he was involved in efforts to get
Fischer's automobile unlocked and did not testify he was
present with them during the entire period. Mark Dine
also acknowledged President Dine was not there con-
tinuously while efforts were made to open the automo-
bile door.
Schmidt first testified Fischer arrived between 2:30
and 3 p.m. and went to the union meeting that lasted
about 1 to 1-1/2 hours. Although Schmidt stated during
this period he spent most of his time in President Dine's
office, he acknowledged Dine was in and out of the
office and he was not with Dine the entire time. Schmidt
also could not remember whether he saw the Union's
representatives that day and acknowledged he did not
actually see Fischer arrive. Schmidt also could not recall
whether Bubp was there.
Locksmith Jack Hansborough, who was called to open
Fischer's locked automobile, stated he arrived at the Re-
spondent about 5 p.m. and observed President Dine,
Mark Dine, Laurie Dine, and Schmidt standing inside
the office door. According to Hansborough it took him
about 25 to 30 minutes to open the automobile door and
6 Dine sent Vice President Fischer a letter dated 23 Aped 1984, which
stated
This letter will confirm that effective with my termination as an em-
ployee of St. Marys Foundry Company on December 25, 1983, 1 also re-
signed as a member of the pension committee and as an officer and direc-
tor of the Company
about every 5 to 6 minutes, when he would go inside to
warm his hands for 2 to 3 minutes, he observed the same
four persons there.
I credit International Representative Morin, Local
President Walter, and Vice President Fischer, rather
than President Dine and Personnel Manager Bubp, and
find both Dine and Bubp attended and participated in the
meeting held between Respondent and the Union on 28
December 1983. Besides my observations of the wit-
nesses in discrediting Dine and Bubp, their presence at
the meeting was not only necessary to assist Fischer,
who seldom visited the facility and did not participate in
the daily operations, but both Dine and Bubp had an in-
terest in the outcome of such meeting and what may
happen to the facility. Inasmuch as the testimony of
Mark Dine, Schmidt, and Hansborough reflects they
were not with President Dine and Bubp throughout the
periods they were in the facility on 28 December, I do
not consider it persuasive concerning whether President
Dine and Bubp attended the meeting with the Union.
On 28 December 1983 an asset purchase agreement
was entered into between the Respondent and St. Marys
Acquisition Corp., in which St. Marys Acquisition Corp.
agreed to purchase certain assets and rights of the Re-
spondent. This agreement was executed by Vice Presi-
dent Fischer for the Respondent and by Larry Dine for
St. Marys Acquisition Corp. This purchase agreement in-
cluded all real property; machinery, equipment, and fur-
niture; inventories; cash and prepaid assets; accounts re-
ceivable; sales contracts; permits, licenses, franchises,
etc.; leases; name; customer list; books and records;
trademarks and trade secrets; promotional materials; and
warranty rights. St. Marys Acquisition Corp. also agreed
to assume on closing certain liabilities and obligations of
the Respondent, but excluded Respondent's obligations
and liabilities under any collective-bargaining agreement.
The closing date was originally set for 23 January 1984.
Section 24 of the agreement provides as follows:
Prior to the Closing, no party hereto shall directly
or indirectly make or cause to be made any public
announcement or issue any notices in any form
(other than as may be required by law) with respect
to this Agreement or the transactions contemplated
hereby without the consent of the other party.
Although Fischer stated the agreement was signed on
28 December 1983, before the union meeting held that
day, he acknowledged he did not inform the Union
about it. Larry Dine, Mark Dine, and Schmidt all
claimed the agreement was signed on 28 December 1983
after the union meeting held that day.
Both Fischer and Larry Dine acknowledged the sale
of Respondent was not completed or did not become
final until the closing that was subsequently held on 3
February 1984, at which time the final documents were
executed.
The Respondent, in a letter to the Union from Vice
President Fischer dated 11 January, responded to the
Union's letter presented to Respondent at the 28 Decem-
ber 1983 meeting. This letter stated in pertinent part the
Respondent had complied with the terms of the labor
ST. MARYS FOUNDRY 227
agreement and did not intend to request any modifica-
tions thereto nor would it enter into any negotiations
that intend to modify the scope or meaning of the labor
agreement. It further provided the following answers to
questions raised in the Union's letter:
1. Health Insurance
(a) Coverage was maintained through December
31, 1983.
(b) The insurance coverage may be continued by
contacting the insurance company directly and ap-
plying for the conversion privilege. Conversion ap-
plications will be forwarded to eligible employees.
(c) Any claims submitted prior to termination
shall be paid.
2. Termination Paychecks
(a) Holiday pay for the 24th and 26th of Decem-
ber is included.
(b) Pursuant to Articles 6.01 through 6.10 any re-
maining unpaid vacation pay accrued as of Decem-
ber 31, 1982, 7 was paid.
(c) Personal holidays are paid only when taken
and so far as we know any scheduled taken days
were paid.
(d) Third shift employees are not eligible for
overtime due to the provisions contained in Article
4.11 for computing the "day worked."
(e) The "Birthday Holiday" has been paid in ac-
cordance with Article 5.01 through 5.07.
3. Pension
(a) The Company knows of no impact which
may occur with respect to retirement benefits.
Union International Representative John Hovis Jr., in
a reply letter to Fischer dated 17 January, restated the
Union's position on closing the facility, as the Respond-
ent had a legal obligation to bargain in good faith the de-
cision to close a plant prior to any such final decision
being made; to negotiate in good faith the effects on em-
ployees of any such company decision prior to closing
the plant, listing examples such as severance pay, future
pension benefit responsibilities, recall rights, etc.; and
stated that closing Respondent in midterm of an existing
labor agreement required certain legal responsibilities of
the Respondent that may not be required at contract ter-
mination.
The letter further stated the Union was renewing its
earlier requests for a meeting to bargain in good faith on
all subjects related to the Union's position set forth
above and threatened the filing of charges against the
Respondent for its failure to comply.
Vice President Fischer in a response letter dated 26
January denied Respondent had refused to meet to dis-
cuss any matters of concern to the unit and pointed out
that Fischer's 11 January letter was a response to the
Union's 28 December 1983 letter. The letter pointed out
7 Vice President Fischer explained at the hearing the year 1982 was a
typographical error and should have been 1983
that although the Union had mentioned in its 28 Decem-
ber 1983 letter it would be arranging meeting dates,
Fischer denied he had received any response from the
Union regarding a meeting. The letter also stated that be-
cause Respondent was no longer operating and was fi-
nancially insolvent, Fischer had taken no steps to initiate
a second meeting because he would have to travel at his
own expense. The letter further stated Respondent had
closed the sale of its assets to St. Marys Acquisition
Corp. and had become a nonoperating entity by sale and
advised Hovis if Hovis had any questions or wished to
schedule a meeting to contact Fischer.
C. The Respondent's Refusal to Furnish Information
and to Process Grievances
The collective-bargaining agreement between the Re-
spondent and the Union contained under article IX
grievance and arbitration provisions to resolve claims,
differences, disputes, or grievances concerning the inter-
pretation or application of, or compliance with, any pro-
vision of the agreement.
Union Field Organizer Timothy Curtin sent Vice
President Fischer a letter dated 2 February enclosing
two grievances the Union was filing against the Re-
spondent. One of those grievances charged the Respond-
ent violated articles I and III of the collective-bargaining
agreement by terminating all production and mainte-
nance employees effective about 26 December 1983
without just cause and prior notification to the Union.
The other grievance charged the Respondent violated ar-
ticles I and III and the preamble by entering into a sales
agreement with St. Marys Acquisition Corp. and Larry
Dine and failed to negotiate recognition of the Union as
the sole and exclusive representative for all production
and maintenance eniployees as prescribed by the succes-
sors and assigns clause and other terms of the agreement,
overstepping management's rights as provided in article
III of the agreement. Both grievances requested certain
relief.
The letter indicated arrangements would be made for a
meeting on the grievances and stated if the grievances
were not satisfactorily resolved, the Union would submit
both grievances to arbitration. The letter further stated it
was the Union's position it should be recognized as the
collective-bargaining representative for Respondent's em-
ployees in accordance with the successors and assigns
clause of the agreement and, m the event the foundry
was not reopened, the Respondent was obligated to bar-
gain effects with the Union as well as a decision to close
the foundry. The letter stated all present St. Marys em-
ployees represented by the Union should be recalled ac-
cording to the agreement in the event the foundry was
reopened prior to hiring any new employees.
Article I of the collective-bargaining agreement was
the recognition provision. Article III was the manage-
ment-rights provision. The preamble provided the agree-
ment was entered into on 23 August 1981 between Re-
spondent, its successors and assigns, and the Union.
On 8 February Curtin had a telephone conversation
with Fischer. After Curtin indicated to Fischer the
Union wanted to arbitrate the pending grievances,
228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Fischer's response was he saw no reason to go to arbitra-
tion, the Company was bankrupt, 8 he had no assets, and
he would not pay for going to arbitration or bear half of
the cost of an arbitrator. Fischer, however, did agree to
waive the first two steps of the grievance procedure.
Vice President Fischer sent Field Organizer Curtin a
reply letter dated 10 February along with Respondent's
responses to the two grievances. The Respondent while
agreeing to waive steps 1 and 2 of the grievance proce-
dure, denied both grievances. Its response to the griev-
ance about terminating the employees was the grievance
did not state a specific act that could be interpreted to be
a violation of article I and claimed its actions were au-
thorized under article III. With respect to the grievance
about the sales agreement, it contended the issues raised
could not be resolved by the grievance procedure or in-
terpreted by the agreement alone, and requested the
Union's advice about a legitimate means of continuing or
discontinuing the grievance via the use of a different
forum.
The letter stated as a practical matter it would be im-
possible for Respondent to arbitrate the two grievances
as Curtin had requested in his 8 February telephone call
to Fischer because the Respondent would be unable to
bear one-half of the cost. It also stated the issue of the
successors and assigns clause in the agreement must be
settled between the Union and St. Marys Acquisition
Corp. and Respondent should not be a party to the dis-
pute because it could do nothing to achieve the desired
outcome of the Union. The letter further stated on the
obligation to bargain with the Union over the effects of
the closing that Fischer had already done that with
Union Representatives Walter, Morin, and Hovis and
Respondent would meet with the Union's representatives
by telephone conference or in person at a time mutually
determined and suggested by the Union.
On 15 February Field Organizer Curtin contacted
Vice President Fischer by telephone at which time they
arranged a meeting for 23 February. Curtin requested all
the information relevant to the change in ownership be-
tween the companies and Fischer said he would provide
everything he had at the meeting.
Curtin sent a letter to Fischer dated 17 February con-
firming their meeting scheduled for 23 February. It also
requested Fischer to bring copies of all documents relat-
ing to the sale and purchase of Respondent's foundry and
assets and stated both parties should be prepared to dis-
cuss all outstanding issues involving the two grievances.
According to Vice President Fischer he requested per-
mission of Larry Dine and Dine's attorney about giving
the information requested. However, he was directed not
to give those items that he said he did not. Fischer said
this was his only motivation for not providing the Union
with the information it requested and denied the Re-
spondent had any other reason to deny the disclosure of
any information to the Union. Dine denied, however, he
was ever asked permission or ever advised Fischer what
he could or could not disclose and stated once the sale
had taken place it would have been up to Fischer.
8 The Respondent had not filed for bankruptcy
On 23 February a meeting was held at St. Marys,
Ohio, between Respondent and the Union. Vice Presi-
dent Fischer represented the Respondent. The Union
was represented by Field Organizer Curtin and the
Union's local officers, President Walter, Vice President
McEldowney, Financial Secretary Koeper, Chief Stew-
ard Miller, and Recording Secretary Randy Wiley.
Curtin stated the purpose of the meeting was to discuss
the two pending grievances and to obtain the informa-
tion the Union had previously requested since 28 Decem-
ber 1983.
Curtin opened the meeting by giving Fischer a copy
of a letter from the Union dated that same day. The
letter stated the Union was appealing Respondent's
denial of the Union's two grievances and requested the
grievances be submitted to arbitration pursuant to the
collective-bargaining agreement and advised copies of
the request were being forwarded to the Federal Media-
tion and Conciliation Service with a request to submit a
list of names of arbitrators. Enclosed with the letter was
a list of the seven issues to be arbitrated, which included
the issues raised by the two grievances. Also enclosed
was a request for information, which the letter stated
was necessary to aid the Union in the enforcement of its
collective-bargaining agreement, and requested Respond-
ent to provide the information requested to the Union as
soon as possible to enable it to expedite the arbitration of
the matter. The enclosed request also stated the Union
needed certain information to adequately prepare for the
arbitration of the two grievances and to enforce the col-
lective-bargaining agreement with the Respondent. It
listed 19 numbered paragraphs including, in pertinent
part, the following two paragraphs:
14. Please indicate what proceeds were realized
from the transfer in bulk of the assets of St. Marys
Foundry Company to St. Marys Acquisition Corpo-
ration (St. Marys Foundry, Inc.) on January 23,
1984 including:
(A) Please include the nature and amount of
the proceeds.
(B) Please identify the name and address of the
person(s) who received those proceeds and their
relationship to the St. Marys Foundry Company.
(C) Please indicate the present owner of the
proceeds (including persons, corporation or asso-
ciations) to whom they were given, sold, trans-
ferred, loaned or assigned since originally re-
ceived from representatives of St. Marys Acquisi-
tion Corporation (St. Marys Foundry, Inc.).
(D) Please indicate the present location and
form in which these proceeds exist.
. . . .
19. Please provide the Union with copies of all
agreements relative to the sale of the St. Marys
Foundry Company to St. Marys Acquisition Corpo-
ration (St. Marys Foundry, Inc.).
Curtin's version of the meeting was he told Fischer
the Union had a right, failing the third step of the griev-
ance procedure, to proceed with arbitration and the
ST. MARYS FOUNDRY

229
Union was going to exercise its right to do so. Fischer's
response, however, was arbitration was useless because
the Respondent had no assets 9 and as far as he was con-
cerned they should be concerning themselves with the
successors and assigns clause and whether the new em-
ployer was a successor to the old employer. Curtin in-
formed Fischer the Union did not accept his version and
said they had a right to arbitrate those cases and they in-
tended to do so and expected Fischer to live up to the
collective-bargaining agreement and to honor the arbitra-
tion section. Curtin then asked Fischer when he had first
proposed to sell the Respondent and the reason. Fischer
said in early 1983, after learning the Respondent had lost
approximately $1 million in 1982, he began looking for a
new buyer and in June or July one of the banks threat-
ened foreclosure because Respondent had made no pay-
ments on a $1 6 million industrial revenue bond nor had
it paid any state income tax for the previous year. Fisch-
er also said since June or July 1983 Dine had discussed
with one of the banks about purchasing the Respondent
and in the fall of 1983 discussions between Dine and the
banks began intensifying. Fischer, pursuant to Curtin's
inquiry, told them the first time he had direct contact
with Dine or his representative concerning excluding the
collective-bargaining agreement from the asset purchase
agreement was in November 1983 when he received
from Dine a proposed sales contract that excluded the
collective-bargaining agreement. Fischer's position on ex-
cluding the collective-bargaining agreement was he
could do nothing because Dine had the banks lined up
and claimed it was St. Marys Acquisition Corp.'s idea to
exclude the collective-bargaining agreement from any aS-
sumption of debts and liabilities. A discussion then fol-
lowed about the Union's list of issues to be submitted to
arbitration. Fischer agreed item numbers 1, 2, and 7 were
proper questions to be arbitrable, but claimed the remain-
ing item numbers 3, 4, 5, and 6, were not proper to arbi-
trate. Item numbers 1, 2, and 7 dealt with whether the
Respondent breached article III by terminating unit em-
ployees On 23 December 1983; whether Respondent vio-
lated articles I, II, III, VIII, and XIII, and appendixes A
and B by the sale of transfer of Respondent's assets to St.
Marys, Inc. without providing for assumption of the col-
lective-bargaining agreement; and whether St. Marys,
Inc. failed to assume the collective-bargaining agreement
and recognize the Union violated the agreement. Curtin's
position was all seven items listed were arbitrable based
on the two grievances filed.
Next discussed was the Union's request for information
that Curtin stated they needed to be able to process the
grievances already presented and to determine who was
liable for what had happened to the Union's membership.
Each of the 19 listed items on the request for informa-
tion was then read by Curtin Fischer gave responses to
each. On item number 14, Curtin stated Fischer denied
the request and said he could not provide any informa-
tion relative to the proceeds to the Union. Fischer's
reason was he had signed a confidentiality agreement
with St. Marys, Inc. that forbid him from providing that
information. On item 19 Fischer mentioned he had
brought several documents with him and said he would
give the Union what he felt they were entitled to under
the request for information. Fischer then gave the Union
three documents. They included an "Asset Purchase
Agreement,"" a "Draft of a Bill of Sale," and an "As-
sumption of Liabilities." The Union then asked for a
caucus to review the documents while Fischer indicated
he would go to the foundry and get some documents the
Union had requested earlier.
On resuming the meeting Curtin complained the Union
had been provided with an incomplete copy of the asset
purchase agreement and demanded a complete copy and
signed copies of the other two documents. Curtin also in-
formed Fischer he had misled the Union in the 28 De-
cember 1983 meeting by not telling them about or pro-
viding them with a complete copy of the asset purchase
agreement. Fischer, however, denied he had done any-
thing wrong and said he had given the Union everything
they were entitled to know on 28 December. During the
meeting Fischer stated he had attempted to get some of
the information the Union had requested earlier, but the
request was denied by St. Marys, Inc. The reason given
by Fischer why he could not get the information was he
respected Dine and the new company's right to privacy.
When Curtin then questioned Fischer about his earlier
reason that it was because of a confidentiality agreement,
Fischer denied having said that and repeated he was re-
specting the new company's right to privacy.
Curtin again requested a complete copy of the asset
purchase agreement and signed copies of the other two
documents that Fischer denied Curtin stated he then
asked Fischer if he was denying Curtin's request for in-
formation relevant to the Union being able to process the
pending grievances as well as to bargain over the effects,
whereupon Fischer replied, "That's correct."
Before the meeting ended, Curtin again renewed his
request for all information asked for in the Union's letter
and told Fischer it was necessary to get it to bargain
over the effects of the closing and to be able to proceed
and properly process the grievances filed in February.
Curtin also told Fischer if they could get the mformation
they could proceed on having another meeting.
Vice President Fischer admitted making certain state-
ments at the meeting attributed to him by Curtin. Fischer
acknowledged he informed them the Respondent has lost
$1 million in 1982 and had been looking for a buyer since
June or July 1983 and that the bank had threatened fore-
closure because the Respondent had not paid on the in-
dustrial revenue bonds. Fischer also said in November he
had received a proposal from Dine and his group about
purchasing the Respondent and the discussions between
Dine and the banks had intensified at that time. Fischer
acknowledged receiving the Union's 23 February letter
at this meeting and Curtin informed him the Union
wanted to arbitrate the two grievances. Fischer's re-
sponse was he felt arbitration would be useless and un-
necessary because the Company had no assets and said
he felt Curtin was not properly protecting the interest of
his constituents by pursuing interest which the Respond-
9 Fischer denied making such a statement 15 This was only a portion of the actual agreement
230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent had no power to make right while the only real issue
was whether St. Marys, Inc. was a successor to the Re-
spondent. Fischer denied recalling Curtin asking whose
idea it was to exclude the collective-bargaining agree-
ment from the assumption of debts and liabilities by St.
Marys, Inc. However, Fischer stated St. Marys Acquisi-
tion Corp. had included that in its proposal. Fischer also
said he told Curtin there was nothing he could do about
it and the sale was in the bank's hands. Fischer acknowl-
edged on the Union's list of items to be submitted for ar-
bitration that he agreed items 1, 2, and 7 were proper to
be submitted to arbitration, but informed them the re-
maining items were legal issues that could not be proper-
ly covered except by a court of law and were not proper
for arbitration and objected to arbitrating those items 3
through 6. Fischer also acknowledged Curtin rejected
his interpretation and stated the Union was going ahead
and pursuing the issue of what was arbitrable.
Fischer also acknowledged they discussed the Union's
request for information. On item 14 regarding the pro-
ceeds of the sale, Fischer told them St. Marys, Inc.
would not allow him to release any information regard-
ing the purchase and he had signed a confidentiality
agreement that he could not break. Fischer also said
none of the proceeds went to the shareholders or officers
of Respondent and that was as much information as he
was going to give regarding the sale and distribution of
the proceeds. 11 Fischer acknowledged giving the Union
an incomplete copy of the asset purchase agreement in
the meeting and, although Curtin made an issue of trying
to get a complete copy, Fischer admitted he refused to
give them a complete copy. Fischer's reason for refusing
was there was a confidentiality agreement with respect
to the purchase and sale agreement and said he could not
give it to Curtin.
Fischer also admitted throughout the meeting that
Curtin kept insisting the information he requested was
relevant for the processing of grievances and the griev-
ance and arbitration proceedings. Before the meeting
ended Fischer stated Curtin reminded him the Union
wanted to fully negotiate the effects of the foundry clos-
ing with the Respondent and said it was necessary to get
relevant information and meet with the union member-
ship prior to additional negotiations over the effects. Al-
though Fischer claimed at the hearing this meeting was
also held to bargain over the effects, Fischer stated
Curtin at the meeting assured him they would be con-
tacting him about another meeting for bargaining over
the effects but never did. Curtin, however, denied the 23
February meeting was to negotiate the effects of the
closing stating the Union had not been provided ade-
quate information to discuss the effects of closing the
foundry. According to Curtin, what he told Fischer at
the meeting was when they got the information request-
ed, including a complete copy of the asset purchase
agreement, they would be able to process their griev-
ances and set up a meeting for effects bargaining.
" According to Fischer there were no proceeds of the sale. Although
in 1984 a tax refund of $4,192 64 was returned to the Respondent, Fischer
claimed it was used to pay Respondent's debts. However, no records
were forwarded to the Union to support those assertions by Fischer
Vice President Fischer sent to Field Organizer Curtin
a letter dated 8 March denying the Union's request for
arbitration as stated in the Union's 23 February letter.
The reason Fischer gave was the Union had filed a
charge with the Board that encompassed all the issues
contained in the grievances and stated there was no sense
dually arbitrating and litigating. The letter also stated,
because matters between them were currently pending
before the Board, the Respondent declined to provide
any information requested in the Union's 23 February
letter except for information dealing with items 5, 12, 15,
and 16, which it said were given to the Union, and item
16, which it stated was enclosed.
Field Organizer Curtin sent Vice President Fischer a
letter dated 12 March complaining that Fischer's re-
sponses to the Union's request for information presented
at the 23 February meeting were totally inadequate and
accused Fischer of failing to provide the Union with
most of the information requested. The letter, after stat-
ing the Union was giving Fischer another opportunity to
provide the information, again renewed the Union's pre-
vious request for information and specifically asked for
information, inter 0in., in items 14 and 19 and for a com-
plete copy of the asset purchase agreement. Enclosed
also was a revised list of nine issues to be arbitrated,
which covered the two pending grievances.
Field Organizer Curtin sent Vice President Fischer an-
other letter dated 18 May in response to Fischer's 8
March letter and a telephone conversation between them
on 18 April about the pending arbitration of their out-
standing grievances. This letter reminded Fischer he had
agreed at the 23 February meeting to the arbitration pro-
cedures for the outstanding grievances and asked Fischer
to reconsider the position he took on those dates and join
in the arbitration procedures outlined in the collective-
bargaining agreement. The letter stated the Union was
prepared to meet at a mutually agreeable time and place
to begin the process of selecting an arbitrator from the
second amended panel sent to the parties by the Federal
Mediation and Conciliation Service. It also threatened
possible additional legal action if Fischer refused to abide
by the procedures.
Vice President Fischer, in a response letter to Field
Organizer Curtin dated 22 May, denied the Respondent
agreed to the arbitration procedure for the outstanding
grievances. Instead, it stated the Union suggested arbi-
trating the matter, but it was pointed out to the Union
the Respondent would be unable to bear its share of the
cost of arbitration. However, the letter stated if the
Union chose to arbitrate, there was nothing Respondent
could do to prevent it, but the Respondent would not be
involved in the expense associated with arbitration. It
pointed out in spite of this the Union had elected to con-
tinue to pursue arbitration while simultaneously initiating
an action with the Board with respect to identical issues.
The letter further stated the Regional Director had
struck down the concept of the "alter ego" of the Re-
spondent, which Fischer then claimed eliminated the
need to arbitrate item numbers 2 through 9 and reen-
forced the Respondent's position that its decision to close
was an inherent management nght. The letter then stated
ST. MARYS FOUNDRY 231
because the Board had settled issues raised by items 2
through 9 and item 1 was not relevant to the issue of
closure, it was Respondent's decision the outstanding
grievances had been settled and nothing further was to
be gained by pursuing the matter either by grievance or
arbitration.
D. Termination of Respondent's Pension Plan
The collective-bargaining agreement between the Re-
spondent and the Union provided for a pension plan cov-
ering the unit employees and there was a pension plan in
effect covering them. Under article 14.1 of the plan, the
Respondent reserved the right to terminate the plan at
any time by action of its board of directors provided
such termination did not violate the terms of the collec-
tive-bargaining agreement.
Under the terms of the asset purchase agreement be-
tween the Respondent and St. Marys, Inc., none of the
liabilities of Respondent's pension plan were assumed by
St. Marys, Inc.
During the meeting held between the Union and Re-
spondent on 23 February Union Field Organizer Curtin
testified Vice President Fischer informed them he had
filed to terminate the pension plan. Curtin claimed this
was the first knowledge he had of the pension plan being
terminated. However, Curtin also stated Fischer said it
was his understanding the pension plan would be ade-
quate/y funded to pay off what every member of the
pension plan would be entitled to and it was adequately
funded to handle all the liabilities.
Fischer stated he did not recall stating at the meeting
they had applied for termination of the pension plan. Al-
though Fischer did not deny making such statement, he
denied at the time of the meeting any such application
had been filed to terminate the pension plan.
According to Fischer, who denied the pension plan
was terminated on 28 December 1983, the pension plan
was not terminated until 31 October. This was after the
25 August termination date contained in the collective-
bargaining agreement. The pension plan was terminated
as explained by Fischer by his submission of a request to
the Pension Benefit Guaranty Corporation and the Inter-
nal Revenue Service in September or October to termi-
nate the pension plan. Fischer used an actuarial firm to
petform the actuarial work and to file the necessary legal
documents. Although Fischer at the hearing stated he in-
structed the actuarial firm that employees' seniority
rihs under the plan were to be calculated to 31 Octo-
ber thereby, giving the employees credit for pension pur-
poks as though they had been employed there through
that period of time, he admitted in a position statement
thc actuary had only computed service credits in accord-
ance with the pension plan and collective-bargaining
agreement until employment terminated in December
1983 or earlier, depending on layoff status. Fischer also
claimed Respondent's actions since the closing of the fa-
cility had been consistent with the collective-bargaining
agreement because the pension plan was not terminated
until after the expiration date of the collective-bargaining
agreement.
Fischer admitted he did not bargain with the Union
about the termination of the pension plan.
E. The Operations of St. Malys, Inc.
St. Marys Foundry, Inc., an Ohio corporation, was in-
corporated on 22 December 1983. The majority of the
stock is owned by Larry Dine and members of his
family The other stockholders are some of its employees
including Douglas Schmidt Included among the officers
and supervisory personnel are President and General
Manager Larry Dine, Manager of Personnel and Safety
Bruce Bubp, who is also sales coordinator and core
maker, Vice President and Sales Manager Mark Dine,
and Treasurer and Office Manager Douglas Schmidt.
St. Marys, Inc. began operations on 6 February fol-
lowing completion of its purchase of the Respondent on
3 February. It uses the same facilities at the same loca-
tion previously used by the Respondent. It continues the
same type of foundry business as Respondent did, per-
forming the same type of work, serving the same cus-
tomers in the same geographical area, and using the same
manufacturing facilities, equipment, and production
methods. It employs approximately 6 or 7 management
and supervisory personnel and 26 or 27 employees who
previously worked for the Respondent.
F. Analysis and Conclusions
The General Counsel and the Union contend contrary
to the Respondent's denials that the Respondent violated
Section 8(a)(1) and (5) of the Act by unlawfully refusing
to give timely notice to and bargain with the Union over
the effects on the unit employees of ceasing its oper-
ations and closing its St. Marys, Ohio facility; refused to
furnish the Union with certain information requested; re-
pudiated the grievance-arbitration provision of the col-
lective-bargaining agreement; and unilaterally terminated
the pension plan covering unit employees. The General
Counsel and the Union also contend St. Marys, Inc, is a
successor to and liable with Respondent for remedying
certain unfair labor practices found against the Respond-
ent. St. Marys, Inc. denies it is a successor and argues in
its brief it had no knowledge of Respondent's alleged
unfair labor practices when it acquired the facility; no
charge had been filed against Respondent when it pur-
chased the facility; it was not a successor within the
meaning of NLRB v. Burns Security Service, 406 U.S. 272
(1972); and it did not continue Respondent's business
without interruption.
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act. Section 8(a)(5) of the Act prohibits an employer
from refusing to bargain collectively with the representa-
tive of its employees.
Turning first to the issue of whether the Respondent
unlawfully refused to give timely notice to or bargain
with the Union over the effects on the unit employees of
ceasing its operations and closing its facility, the findings
supra establish the Respondent on 23 December 1983
without any prior notice to the Union, although it had
been attempting for some time to sell its facility for fi-
nancial reasons, made the decision to cease operations,
close its facility, and terminate all of its employees that
same day, which it then did. Respondent also admits in
232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its answer it closed its facility and ceased operations
without giving any prior formal notice to the Union. Al-
though the Respondent did inform the Union's represent-
atives of its decision immediately before announcing to
all the employees that same day the facility was closing
and they were being terminated that day, the Respond-
ent at no time before implementing its decision allowed
the Union an adequate opportunity to bargain over the
effects of its closing on the unit employees. This oc-
curred notwithstanding the Union represented the unit
employees and had a current collective-bargaining agree-
ment with the Respondent covering them. Thereafter,
following the closing of the facility, the Union did at-
tempt, beginning on 28 December 1983, to bargain with
the Respondent over the effects of the closing on the
unit employees. However, the Respondent rejected such
attempts.
The Respondent's reasons given to the Union on 28
December 1983 by Vice President Fischer for refusing
its requests to bargain over the effects on the unit em-
ployees of the closing were Respondent was under no
obligation to negotiate the effects and all the employees
had been terminated so there was nothing to bargain.
Notwithstanding, the Union both orally and by letter
subsequently reminded the Respondent of its legal obli-
gation to bargain with the Union over the effects of the
closing on the unit employees and of the Union's inten-
tion to do so, the Respondent never agreed to bargain
over the effects.
Management decisions that affect the scope, direction,
or nature of the enterprise are excluded from Section
8(d) of the Act. Otis Elevator Co., 269 NLRB 891, 893
(1984). The law is well settled that an employer's deci-
sion motivated by economic considerations to cease op-
erations and close its business is completely within the
prerogative of the employer. However, the law is equal-
ly well settled that an employer is obligated to give the
union timely notice and afford the union an adequate op-
portunity to bargain over the effects of the closing on
unit employees. P. J. Hamill Transfer Co., 277 NLRB 462
(1985). Bargaining over the effects of a decision to close
must be conducted in a meaningful manner and at a
meaningful time. First National Maintenance Corp. v.
NLRB, 452 U.S. 666 (1981).
Applying the applicable law to these findings, I am
persuaded and fmd the Respondent closed its facility and
ceased operations on 23 December 1983 without giving
timely notice to the Union and failed and refused to pro-
vide the Union an opportunity to bargain over the effect
of the closing on the unit employees thereby violating
Section 8(a)(5) and (1) of the Act.
The next issue discussed is whether the Respondent
unlawfully refused to furnish the Union with certain in-
formation it requested. The above evidence establishes
that on 15 February the Union orally requested the Re-
spondent to provide it with all the information relevant
to the change in ownership between Respondent and St.
Marys, Inc. This request was confirmed in writing on 17
February when the Union asked for copies of all docu-
ments relating to the sale and purchase of Respondent's
foundry and assets. On 23 February the Union, both in
writing and orally, requested the following information:
What proceeds were realized from the transfer in bulk of
the assets of Respondent to St. Marys, Inc. on 23 Janu-
ary including the nature and amount of the proceeds;
name and address of person or persons who received
those proceeds and their relationship to Respondent;
present owner of the proceeds to whom given, sold,
transferred, loaned, or assigned since originally received
from representatives of St. Marys, Inc.; and the present
location and form in which proceeds exist. It also re-
quested copies of all agreements relative to the sale of
Respondent to St. Marys, Inc.
The Union's reasons given to the Respondent for re-
questing such information were that it was needed to
process the two pending grievances filed by the Union
and to bargain over the effects of the closing of the facil-
ity. The two grievances filed on 2 February alleged vio-
lations of the collective-bargaining agreement with re-
spect to the termination of all the employees and the suc-
cessors and assigns clause. The Respondent denied the
Union's requests for information except for furnishing it
an incomplete copy of the asset purchase agreement and
unsigned copies of a draft of a bill of sale and an assump-
tion of liabilities. The initial reason for refusing was on
the grounds it had a confidential agreement with St.
Marys, Inc. However, because the sale had already been
completed, that provision of the asset purchase agree-
ment was no longer applicable. Later a reason Respond-
ent gave for refusing to furnish the information was be-
cause the matter between the Respondent and the Union
was currently pending before the Board based on a
charge filed by the Union.
The pleadings also admit the Respondent, since about
17 February, has failed and refused to furnish the Union
as it requested with a complete copy of the asset pur-
chase agreement between the Respondent and St. Marys,
Inc. dated 28 December 1983; an accounting about what
proceeds were realized from the sale pursuant to the
asset purchase agreement between Respondent and St.
Marys, Inc.; and an accounting and full explanation of
how the proceeds of the sale between Respondent and
St. Marys, Inc. were distributed.
The law is well settled that a union, obligated to rep-
resent bargaining unit employees with respect to their
terms and conditions of employment, is entitled to such
information from the employer as may be relevant and
reasonably necessary to the proper execution of that obli-
gation including administering a collective-bargaining
agreement. Westinghouse Electric Corp., 239 NLRB 106,
107 (1978), enfd. as modified 648 F.2d 18 (D.C. Cir.
1980). This includes furnishing relevant and reasonably
necessary information regarding grievances in order for a
union to process, evaluate, and handle grievances and to
make a determination on whether to proceed to arbitra-
tion. Clinchfield Coal Co., 275 NLRB 1384 (1985); and
Boeing Co., 182 NLRB 421 (1970). The duty to supply
information also extends to a request for information to
prepare a grievance for arbitration. Chesapeake Telephone
Co., 259 NLRB 225, 227 (1981), enfd. 687 F.2d 633 (2d
Cir. 1982). The test for determining a union's need for
such information is a showing of "probability that the
desired information was relevant, and that it would be of
ST MARYS FOUNDRY 233
use to the union in carrying out its statutory duties and
responsibilities." NLRB v. Acme Industrial Co., 385 U.S.
432, 437 (1967).
Here the Union had filed two grievances on 2 Febru-
ary against the Respondent alleging violation of the col-
lective-bargaining agreement by terminating its employ-
ees and not following the successors and assigns clause.
This information, all dealing with the sales transaction of
Respondent's facility to St. Marys, Inc., the Union re-
quested for purpose of processing, the two grievances
and bargaining over the effects of closing the facility was
relevant and reasonably necessary to the Union's obliga-
tions in administering the collective-bargaining agree-
ment and processing the grievances. Respondent, with-
out any valid reason shown, admittedly refused to fur-
nish the Union with the information it requested. Ac-
cordingly, I find the Respondent violated Section 8(a)(5)
and (1) of the Act by refusing since about 17 February
to furnish the Union, as requested, with a complete copy
of the asset purchase agreement between Respondent and
St. Marys, Inc.; an accounting of the proceeds realized
from the sale pursuant to the asset purchase agreement
between Respondent and St. Marys, Inc.; and an ac-
counting and full explanation of how the proceeds of the
sale between Respondent and St. Marys, Inc. were dis-
tributed, all of which information was relevant and nec-
essary to the Union's obligation in administering its col-
lective-bargaining agreement and processing grievances.
Insofar as the repudiation of the grievance-arbitration
provision of the collective-bargaining agreement by the
Respondent is concerned, the evidence supra shows the
Union filed two grievances on 2 February alleging viola-
tions of the collective-bargaining agreement with respect
to the termination of the employees and the successors
and assigns clause. These grievances both involve con-
duct occurring while the collective-bargaining agreement
was still in effect and before Respondent sold its facility.
Notwithstanding the collective-bargaining agreement
contained a grievance-arbitration provision for resolving
grievances concerning the interpretation, application, or
compliance with terms of the collective-bargaining
agreement and the Union repeatedly requested the Re-
spondent to arbitrate the two grievances, the Respondent
refused. Its initial reason given to the Union on 8 Febru-
ary for refusing was because it claimed it was bankrupt,
had no assets, and stated it would not pay for going to
arbitration or pay one-half the cost of the arbitration. On
10 February the Respondent denied the grievances alleg-
ing either they did not allege a violation of the collec-
tive-bargaining agreement, could not be resolved by the
grievance procedure, or Respondent's acts were author-
ized by the collective-bargaining agreement. However,
Respondent also claimed it would be impossible for Re-
spondent to arbitrate the two grievances because it
would be unable to pay one-half the cost. On 23 Febru-
ary, when the Union announced it was going to arbitrate
the two grievances, Respondent claimed it was useless
because Respondent had no assets and also claimed some
of the issues raised by the Union to be arbitrated on the
grievances were not proper to arbitrate. On 8 March Re-
spondent gave as its reason for denying the Union's re-
quest to arbitrate the fact that the Union had filed a
charge with the Board encompassing all the issues con-
tained in the grievances and there was no sense arbitrat-
ing and litigating. On 22 May the Respondent again
denied the Union's request to arbitrate, claiming it was
unable to bear its share of the cost and that the issues
had already been settled by the Board and nothing could
be gained by grievance or arbitration. Thus, it is clear
the Respondent refused the Union's repeated request to
arbitrate the grievances.
An employer is legally obligated to honor the griev-
ance and arbitration provisions contained in its collec-
tive-bargaining agreement with a union Financial hard-
ship is no justification for repudiation or modification of
a collective-bargaining agreement or a term thereof Phoe-
nix Air Conditioning, 231 NLRB 341, 342 (1977).
The Respondent refused the Union's requests to arbi-
trate the two grievances filed by the Union alleging vio-
lations of the collective-bargaining agreement and in-
formed the Union it would be impossible to arbitrate
them. Neither Respondent's claim that it had no funds to
pay for arbitration nor that the Union had filed a charge
with the Board involving similar issues afford Respond-
ent a valid defense to relieve it or its obligation to arbi-
trate the grievances as required by the collective-bar-
gaining agreement. The effect of Respondent's refusal to
arbitrate the grievances was to repudiate the grievance-
arbitration provision of the collective-bargaining agree-
ment. Under the circumstances, I find Respondent, since
about 8 February by its refusal to arbitrate the Union's
grievances, repudiated the grievance-arbitration provi-
sion of the collective-bargaining agreement and thereby
violated Section 8(a)(5) and (1) of the Act.
With respect to the termination of Respondent's pen-
sion plan, the amended complaint alleges the Respondent
unilaterally terminated the pension plan about 28 Decem-
ber 1983 or thereafter. The evidence establishes the col-
lective-bargaining agreement between the Respondent
and the Union provided for a pension plan covering the
unit employees and there was also in effect a pension
plan covering them, Under its provisions, the Respond-
ent reserved the right to terminate the plan if the termi-
nation did not violate the terms of the collective-bargain-
ing agreement. Although this pension plan was admitted-
ly terminated, this did not occur until 31 October which
was long after the sale of Respondent and the 25 August
termination date of the collective-bargaining agreement.
Under these circumstances, I am persuaded and find the
termination of the pension plan by the Respondent on 31
October did not violate Section 8(a)(5) and (1) of the
Act as alleged.
The remaining issue to be resolved is whether St.
Marys, Inc. is a successor to and liable with Respondent
for remedying certain unfair labor practices found
against the Respondent.
The evidence supra establishes St. Marys, Inc. pur-
chased Respondent and its assets and thereafter contin-
ued using the same facility and operating it in the same
manner as had Respondent including servicing the same
customers. It also employed management personnel who
held similar positions with Respondent and employed a
large number of employees who previously worked for
234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Respondent. Except for the period while the sale was
being finalized, plus a few other days, the business con-
tinued without interruption. Thus, except for the change
of ownership and some personnel changes, the employ-
ing industry remained substantially unchanged.
The evidence further establishes St. Marys, Inc. pur-
chased the Respondent with full knowledge Respondent
had ceased operations and closed its facility without bar-
gaining with the Union that represented its employees
over the effects of the closing of the facility on the unit
employees.
Larry Dine, who is the president and general manager
and, with his family, principal owner of St. Marys, Inc.,
was also the president, plant manager, and chief execu-
tive officer in charge of the day-to-day operations of the
Respondent when it ceased operations and closed its fa-
cility. Prior to Respondent closing, Dine was already in-
volved with other investors in their attempt to purchase
the Respondent that resulted in the asset purchase agree-
ment executed by Dine only 5 days after Respondent
closed. Admittedly, Dine, who announced Respondent's
closing to the Union and employees shortly before it
closed on the same day, did not give prior notice to or
bargain with the Union over the effects of its closing.
Not only was Dine aware that at the time Respondent
closed it had not bargained with the Union over the ef-
fects of the closing, but both he and Bruce Bubp, who is
the manager of personnel and safety for St. Marys, Inc.
and held a similar position with Respondent, were
present at the 28 December 1983 meeting between Re-
spondent and the Union when the Respondent refused
the Union's request to bargain over the effects of the
closing on the unit employees. Notwithstanding knowl-
edge of Respondent's refusal to bargain with the Union
over the effects of the closing, St. Marys, Inc. proceeded
in its efforts to and thereafter did purchase Respondent.
The law is well settled that an employer who acquires
and operates a business of an employer found guilty of
unfair labor practices in basically unchanged form under
circumstances that charge the employer with notice of
the unfair labor practice charges against the predecessor,
is held responsible for remedying the predecessor's un-
lawful conduct. Perma Vinyl Corp., 164 NLRB 968, 969
(1967), enfd. 398 F.2d 544 (5th Cir. 1968); and Golden
State Bottling Co. v. NLRB, 414 U.S. 168 (1973). To hold
a successor employer liable for its predecessor's unfair
labor practices it is not necessary that unfair labor prac-
tice charges be filed prior to the takeover, but the suc-
cessor employer must have notice of the facts of the
unfair labor practices at the time of the takeover. Cum-
berland Nursing Center, 263 NLRB 428, 434 (1982).
Here, as the evidence reveals, St. Marys, Inc. pur-
chased Respondent with knowledge Respondent had not
given timely notice to and refused to bargain with the
Union over the effects of ceasing its operations and clos-
ing its facility on the unit employees, which is an unfair
labor practice, and by St. Marys, Inc. continuing to oper-
ate Respondent's business in substantially unchanged
form, it became a successor to the Respondent for pur-
poses of remedying Respondent's unfair labor practices
in refusing to bargain with the Union over the effects of
ceasing its operations and closing its facility. 12 The argu-
ments raised by Respondent in its brief are rejected on
the basis of the facts found and the applicable law set
forth.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section III,
above, found to constitute unfair labor practices occur-
ring in connection with the operations of Respondent de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow thereof.
CONCLUSIONS OF LAW
I. St. Marys Foundry Company is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. St. Marys Foundry, Inc. is a successor to Respond-
ent for purposes of remedying certain unfair labor prac-
tices found against Respondent.
3. United Electrical, Radio and Machine Workers of
America, and its Local 763 are each labor organizations
within the meaning of Section 2(5) of the Act.
4. All production and maintenance employees, pattern
chasers, and truck drivers employed by the Respondent
at its St. Marys, Ohio foundry, excluding all office cleri-
cal employees, foremen, assistant foremen, salaried em-
ployees, and all professional employees, guards, and su-
pervisors as defmed in the Act constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
5. The Union at all times material has been the exclu-
sive representative of all the employees in the above-de-
scribed unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
6. By failing and refusing to give timely notice to the
Union and affording the Union an opportunity to bargain
about the effects on the unit employees of ceasing its op-
erations and closing St. Marys, Ohio facility on 23 De-
cember 1983; by refusing since about 17 February 1984
to furnish the Union with a complete copy of the asset
purchase agreement between Respondent and St. Marys,
Inc., an accounting of the proceeds realized from the sale
pursuant to the asset purchase agreement between Re-
spondent and St. Marys, Inc., and an accounting and full
explanation of how the proceeds of the sale between Re-
spondent and St. Marys, Inc. were distributed, all of
which information was relevant and necessary to the
Union's obligation in administering its collective-bargain-
ing agreement and processing grievances; and by its re-
fusal since about 8 February 1984 to arbitrate grievances
filed by the Union repudiated the grievance-arbitration
provision of the collebtive-bargaining agreement, Re-
12 There is no evidence St. Marys, Inc. had knowledge of any other
unfair labor practices in issue here when it acquired Respondent's facility,
and I find it would not be responsible for remedying them
ST. MARYS FOUNDRY 235
spondent had engaged in unfair labor practices in viola-
tion of Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found Respondent violated Section 8(a)(5) and
(1) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action along with
St. Marys, Inc. to effectuate the policies of the Act.
Respondent shall be ordered to arbitrate the Union's
two grievances filed on 2 February 1984 alleging viola-
tion of the collective-bargaining agreement by terminat-
ing its employees and not following the successors and
assigns clause. It shall also be ordered to furnish the
Union with the information herein found that it unlaw-
fully refused to furnish.
With respect to the failure and refusal to bargain over
the effects of closing Respondent's facility, a bargaining
order alone cannot serve as an adequate remedy for Re-
spondent's unlawful failure to give timely notice to and
offer the Union an opportunity to bargain about the ef-
fects of the cessation of its operations because at the time
of the shutdown the unit employees were denied an op-
portunity to bargain through their collective-bargaining
representative at a time when there would have been
some measure of balanced bargaining power. Therefore,
in order to effectuate the policies of the Act and to
assure meaningful bargaining, a limited backpay require-
ment shall be ordered fashioned to make whole the unit
employees for losses suffered as a result of Respondent's
failure to bargain as well as to reestablish a bargaining
situation in which the bargaining position of the parties is
not entirely devoid of economic consequences to Re-
spondent and St. Marys, Inc., which purchased Respond-
ent with knowledge Respondent had ceased operations
and closed its facility without bargaining with the Union
over the effects of the closing on the unit employees, and
as found is a successor to Respondent for purposes of
remedying Respondent's refusal to bargain over the ef-
fects of closing. Accordingly, Respondent shall be or-
dered to bargain with the Union, on request, concerning
the effects of closing its operations on its unit employees
and jointly and severally with St. Marys, Inc. to pay
backpay to Respondent's employees in the manner simi-
lar to that required in Transmarine Navigation Corp., 170
NLRB 389 (1968). Thus, Respondent and St. Marys, Inc.
jointly and severally shall pay the unit employees, who
were employed at the time of the cessation of operations
on 23 December 1983, amounts at the rates of their
normal wages when last in Respondent's employ, from 5
days after the date of this decision until the occurrence
of the earliest of the following conditions: (1) the date
Respondent bargains to an agreement with the Union on
those subjects pertaining to the effects of the closing of
Respondent's operations on its unit employees; (2) a bona
fide impasse in bargaining; (3) the failure of the Union to
request bargaining within 5 days of this decision, or to
commence negotiations within 5 days of Respondent's
notice of its desire to bargain with the Union; or (4) the
subsequent failure of the Union to bargain in good faith.
In no event shall the sum paid to any of these employees
exceed the amount the employee would have earned as
wages from 23 December 1983, the date on which Re-
spondent ceased its operations, to the time the employee
secured equivalent employment elsewhere, or the date on
which Respondent shall have offered to bargain, which-
ever occurs sooner; provided, however, that in no event
shall this sum be less than these employees would have
earned for a 2-week period at the rate of their normal
wages when last in Respondent's employ. Interest on all
such sums shall be paid in the manner described in Flori-
da Steel Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1962). Further, to protect
the rights of St. Marys, Inc., which will be liable with
Respondent for backpay arising from the bargaining over
the effects on the unit employees of closing Respondent's
facility, it shall be notified by Respondent of such effects
bargaining and at its option have the right to participate
in that bargaining between the Respondent and the
Union.
Because Respondent has ceased operations, I shall
order it to mail a copy of the attached notice marked
"Appendix" to the Union and to all the employees em-
ployed by Respondent in the appropriate unit at the time
it ceased operations on 23 December 1983.
The General Counsel's request that the remedy include
a visitatorial clause authorizing the Board to engage in
discovery under the Federal Rules of Civil Procedure
for purposes of monitoring compliance with the Board's
Order is rejected on the grounds the Board does not pro-
vide for discovery procedures in its proceedings.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed13
ORDER
The Respondent, St. Marys Foundry Company, St.
Marys, Ohio, its officers, agents, successors, 14 and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to give timely notice to and
bargain with United Electrical, Radio and Machine
Workers of America, and its Local 763 as the exclusive
representative of its employees in the appropriate unit set
forth below with respect to the effects on the unit em-
ployees of its decision to cease operations and close its
St. Marys, Ohio facility. The appropriate unit is:
All production and maintenance employees, pattern
chasers and truck drivers employed by the Re-
spondent at its St. Marys, Ohio foundry, excluding
all office clerical employees, foremen, assistant fore-
men, salaried employees, and all professional em-
ployees, guards and supervisors as defined in the
Act.
13 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
14 St. Marys, Inc is not a successor as the term applies here.
236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Refusing to bargain collectively with the Union by
refusing to furnish it relevant and reasonably necessary
information for the Union to administer its collective-
bargaining agreement and to process grievances.
(c) Repudiating the grievance-arbitration provision of
the collective-bargaining agreement by refusing to arbi-
trate grievances filed by the Union.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following necessary affirmative action
along with the successor St. Marys Foundry, Inc. to the
extent indicated for it in subsections 2(b), (c), and (h) to
effectuate the policies of the Act.
(a) On request, bargain collectively with Umted Elec-
trical, Radio and Machine Workers of America, and its
Local 763 with respect to the effects on the unit employ-
ees of the cessation of operations and closing its St.
Marys, Ohio facility and if any understanding is reached,
embody it in a signed agreement.
(b) Notify St. Marys Foundry, Inc. of the effects bar-
gaining, which at its option shall have the right to par-
ticipate in that bargaining between the Respondent and
the Union.
(c) Jointly and severally with St. Marys Foundry, Inc.
pay those unit employees who were terminated on 23
December 1983 when Respondent ceased operations and
closed St. Marys, Ohio facility their normal wages, plus
interest, in the manner set forth in the remedy section of
this decision.
(d) Arbitrate the Union's two grievances filed on 2
February 1984 alleging violation of the collective-bar-
gaining agreement by terminating its employees and not
following the successors and assigns clause.
(e) Furnish the Union with a complete copy of the
asset purchase agreement between Respondent and St.
Marys Foundry, Inc.; an accounting of the proceeds of
the sale of Respondent; and an accounting and full expla-
nation of how the proceeds of the sale of Respondent
were distributed.
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(g) Mail a copy of the attached notice marked "Ap-
pendix" 15 to the Union and to all employees employed
by Respondent in the appropriate unit when it ceased op-
erations and closed its facility on 23 December 1983.
(h) Notify, along with St. Marys Foundry, Inc., the
Regional Director in writing within 20 days from the
15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
date of this Order what steps Respondent and St. Marys
Foundry, Inc. have taken to comply.
IT IS FURTHER RECOMMENDED that the amended com-
plaint is dismissed insofar as it alleges violations of the
Act not specifically found.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATOINAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to give timely notice to
and bargain with United Electrical, Radio and Machine
Workers of America, and its Local 763 as the exclusive
representative of our employees in the appropriate unit
set forth below with respect to the effects on our unit
employees of our decision to cease operations and close
our St. Marys, Ohio facility. The appropriate unit is:
All production and maintenance employees, pattern
chasers and truck drivers employed by the Re-
spondent at its St. Marys, Ohio foundry, excluding
all office clerical employees, foremen, assistant fore-
men, salaried employees, and all professional em-
ployees, guards and supervisors as defined in the
Act.
WE WILL NOT refuse to bargain collectively with the
above-named labor organizations by refusing to furnish
them relevant and reasonably necessary information for
them to administer the collective-bargaining agreement
and to process grievances.
WE WILL NOT repudiate the grievance-arbitration pro-
vision of our collective-bargaining agreement by refusing
to arbitrate grievances filed by the above-named labor
organizations.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
WE WILL, on request, bargain collectively with United
Electrical, Radio and Machine Workers of America, and
its Local 763 with respect to the effects on the unit em-
ployees of our cessation of operations and closing our St.
Marys, Ohio facility and if any understanding is reached,
WE WILL embody it in a signed agreement.
WE WILL jointly and severally with our successor, St.
Marys Foundry, Inc., pay our unit employees who were
terminated on 23 December 1983 when we ceased oper-
ations and closed our St. Marys, Ohio facility their
normal wages for a period specified by the National
Labor Relations Board, plus interest.
WE WILL arbitrate the grievances filed by the above-
named labor organizations on 2 February 1984 alleging
violations of the collective-bargaining agreement by our
termmating our employees and following the successors
and assigns clause.
ST MARYS FOUNDRY 237

WE WILL furnish the above-named labor organizations ceeds of our sale of St. Marys Foundry Company were

a complete copy of the asset purchase agreement be- distributed.
tween us and St. Marys Foundry, Inc., an accounting of

the proceeds of our sale of St. Marys Foundry Company, ST. MARYS FOUNDRY COMPANY
and an accounting and full explanation of how the pro-