Summit Tooling Co.

National Labor Relations Board - Board Decisions

Feb 22, 1972

195 N.L.R.B. 479 (N.L.R.B. 1972)

SUMMIT TOOLING CO. 479
Summit Tooling Company and Ace Tool Engineering
Co., Inc ., and Summit Tooling Company Division of
Ace Tool Engineering Co., Inc . and District 103 of
the International Association of Machinists and
Aerospace Workers , AFL-CIO. Case 25-CA-3829
February 22, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On April 12, 1971, Trial Examiner Abraham H.
Maller issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action, as
set forth in the attached Trial Examiner's Decision.
The Trial Examiner also found that the Respondent
had not engaged in certain other alleged unfair labor
practices. Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision and a brief in support
thereof, and the General Counsel filed a brief in support
of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner to the extent consistent herein.
1. We agree with the Trial Examiner that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
when it denied the Union information beginning about
October 1969 and lasting until May 1970 regarding the
Respondent's contributions to the pension plan estab-
lished under the collective-bargaining agreement. The
memorandum of agreement effective September 1,
1969, specifically provided that the union trustee re-
ceive a monthly report of the amount paid to the com-
pany underwriting the insurance in order to effectively
administer the contract. We also agree with the findings
of the Trial Examiner that the Respondent's failure to
sign the collective-bargaining agreement which the par-
ties had fully negotiated and only a formal signing
remained for its completion demonstrated the Re-
spondent's bad faith in dealing with the Union and
violated Section 8(a)(5) of the Act.
As for the Respondent's closing down of its Summit
operation on June 8, 1970, we find in agreement with
the Trial Examiner that the refusal of the Respondent
to discuss the effects of the shutdown on the terminated
employees violated its bargaining obligations under the
Act. It is clear from the record evidence that the Sum-
mit operation was closed without notice to the Union
and without affording the Union an opportunity to
bargain with respect to the effects of Respondent's deci-
sion on the employees. Bargainable issues such as sever-
ance pay, seniority, and insurance coverage, among
others, were necessarily of particular relevance and im-
portance. The Respondent, by withholding all informa-
tion of its intention to close down and to terminate the
Summit operation, prevented the Union from bargain-
ing over these and other related matters and from ap-
plying the provisions of the collective-bargaining agree-
ment which the parties had negotiated and agreed to.
Accordingly, we conclude that such failure to give the
Union an opportunity to bargain about the effect of the
closing and to discuss the Union's right under the col-
lective-bargaining agreement violated Section 8(a)(5)
and (1) of the Act.
We agree with the Trial Examiner that the Respond-
ent came forward with little or no objective record
evidence to support its contention that the closing of
the Summit operation was necessitated by economic
considerations. We find that the reasons advanced by
the Respondent were pretextual and insufficient to
overcome the General Counsel's prima facie case that
the closing was discriminatorily motivated. In our
opinion, the statements by Respondent President Milo-
vich and his entire course of conduct both before and
after the closing support such conclusion and demon-
strate his animus against the Union and his union em-
ployees. We note that all four employees terminated
were union members and that three were active union
leaders and that they were terminated prior to Re-
spondent's decision on June 8 to close down the Sum-
mit operation. As discussed in the Trial Examiner's
Decision, two of the four employees terminated were
personally blamed, along with the Union, by Respond-
ent President Milovich for his decision to close the
Summit operation.' Accordingly, we also adopt the
' The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board 's established policy not to overrule a Trial
Examiner's resolution with respect to credibility unless the clear preponder-
ance of all of the relevant evidence convinces us that the resolutions were
incorrect Standard Dry Wall, Inc, 91 NLRB 544, enfd. 188 F 2d 363 (C A
3) We have carefully examined the record and find no basis for reversing
his findings
195 NLRB No. 91
' Contrary to the Trial Examiner we find that the record does not support
the findings of the Trial Examiner that Pelka , a toolmaker, was dis-
cnminatorily placed in a laid-off status on May 19, 1970, when he completed
some unfinished work, rather than assigned the special work Hunsberger, a
moldmaker , was performing . Hunsberger , who was retained , was not only
a union member but also an experienced moldmaker There is sufficient basis
in the record for the Respondent to question Pelka's credentials as a mold-
maker and to conclude that Hunsberger had the necessary experience which
(Cont)
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner's findings that the termination of
Parks, Rosin, Pelka, and Schaunaman allegedly for
economic reasons violated Section 8(a)(3) and (1) of the
Act as alleged in the complaint.
Contrary to the Trial Examiner, however, we do not
agree that the Respondent violated Section 8(a)(5) and
(1) of the Act by closing its manufacturing operation
without giving the Union an opportunity to bargain
concerning the decision to close.' As set forth in the
Trial Examiner's Decision, such decision involved a
major change in the nature of the Respondent's busi-
ness, and, although the closing of the Summit operation
could be characterized as a partial plant closing, its
practical effect was to take the Respondent out of the
business of manufacturing tool and tooling products.
The part of the business that remained, Ace Tool Engi-
neering Co., Inc., is not engaged in tool-and-die mak-
ing, manufactures nothing, and has little relationship to
the work which was performed by Summit nor does it
utilize the skills of the employees employed by Summit.
In these circumstances, to require Respondent to bar-
gain about its decision to close out its manufacturing
operation would significantly abridge Respondent's
freedom to manage its own affairs. We do not believe
that the Act contemplated eliminating the prerogative
of an employer, as here, to eliminate itself as an em-
ployer.' Accordingly, we conclude that the Respondent
did not violate Section 8(a)(5) and (1) of the Act by its
unilateral decision to close its manufacturing opera-
tion, and the complaint in regard thereto is dismissed.
2. Having found that the Respondent has engaged in
certain unfair labor practices as enumerated above, we
shall order that it cease and desist therefrom, and from
like or related conduct, and that it take certain affirma-
tive action to effectuate the policies of the Act, as pro-
vided below.
the special project required . Accordingly , we do not adopt the Trial Ex-
aminer's findings in this regard We find that Pelka was discriminatorily
terminated , together with Rosin and Parks, on June 8, 1970 , when the
Summit operation was closed As for Schaunaman , the record shows that his
employment with Summit was terminated on June 5, 1970
' In agreement with his colleagues , Member Fanning believes that Re-
spondent 's closedown of its Summit operations is to be treated as a "partial
closing" of its business In these circumstances , he dissents from their refusal
to find that Respondent violated Sec 8(a)(5) of the Act by failing to afford
the Union an opportunity to bargain about Respondent's decision to discon-
tinue those operations The authority cited by the Trial Examiner for finding
such a violation is clearly contrary to my colleagues ' decision herein See
Royal Plating and Polishing Co, Inc., 148 NLRB 545, and 152 NLRB 619,
Ozark Trailers, Incorporated, et al, 161 NLRB 561, Drapery Manufactur-
ing Co., Inc., 170 NLRB 1706 For the reasons stated by the Trial Examiner,
Member Fanning finds those decisions to be controlling on the issue before
us herein.
' NL.R B v Adams Dairy, Inc, 350 F 2d 108 (C A 8), NLRB v
Royal Plating and Polishing Co , 350 F 2d 191 (C A 3), NL. R.B v Thomp-
son Transport Co, 406 F 2d 698 (C A 10), NL R B v Drapery Manufac-
turing Co., 425 F 2d 1026 (C A 8) Cf NL R B v Darlington Manufactur-
ing Company, 380 U S 263
We have found specifically that Respondent violated
Section 8(a)(5) and (1) of the Act by: (1) its refusal to
furnish necessary and required information; (2) its fail-
ure to sign a fully negotiated collective-bargaining con-
tract; and (3) its refusal to discuss the effects on the
affected employees of its shutdown of the Summit
manufacturing operation with the Union. We further
have found that the Respondent violated Section
8(a)(3) and (1) of the Act by terminating four em-
ployees for discriminatory reasons; Schaunaman on
June 5, 1970, and Pelka, Rosin, and Parks on June 8,
1970.
In fashioning his remedy the Trial Examiner con-
cluded that the only effective remedy would be one that
required the Respondent to reopen the Summit opera-
tion, to offer reinstatement to the employees who were
terminated, and to make them whole for any loss they
may have sustained by reason of Respondent's dis-
crimination against them. While we are mindful in
fashioning our affirmative orders that the remedy
should "be adapted to the situation that calls for re-
dress,"' with a view toward "restoring the situation as
nearly as possible to that which would have obtained
but for [the unfair labor practice],"6 and that the nature
of the violation could probably best be remedied in
directing the Respondent to restore the status quo ante
by reestablishing the discontinued operation, we are of
the opinion that such reestablisment is not essential in
this case to the framing of a meaningful remedy. Aside
from the fact that the Trial Examiner has cited no
precedent justifying such a drastic remedy in a situa-
tion where, as here, the Respondent has discontinued
a major operation and its remaining operation is inde-
pendent of and bears little relationship to the discon-
tinued operation, we believe that practical considera-
tions dictate against our ordering the Respondent to
reestablish its Summit operation. In reaching this con-
clusion, we have reviewed the nature of the Respond-
ent's general business operations, considered the possi-
bility that the discontinued operation may now be
outmoded, and noted that the Respondent had publicly
announced that it is no longer in the manufacturing
business and that a major concern of the Union has
been an attempt to bargain only about the effect of the
shutdown on the employees involved. We shall not,
therefore, require reestablishment of the Summit oper-
ation.
Effectuation of the policies of the Act does require,
however, that Respondent be required to establish a
preferential hiring list of all employees in the appropri-
ate unit at Summit following the system of seniority as
provided under the collective-bargaining contract, and,
if operations are ever resumed anywhere in the South
Phelps Dodge Corp v NL RB, 313 U S 177, 194
Ozark Trailers, Incorporated, 161 NLRB 561
SUMMIT TOOLING CO. 481
Bend, Indiana, area, where the Respondent is located,
offer reinstatement to those employees and bargain
with the Union upon request.' Of course, if Respondent
decides to resume its Summit operation, it shall offer all
those in the appropriate unit reinstatement to their
former or substantially equivalent positions there. Our
order will so provide.
It is essential, of course, that Respondent also be
required to bargain, upon request, about the effects of
the closing on the Summit plant employees. Under the
present circumstances, however, a bargaining order,
alone, we are convinced, cannot serve as an adequate
remedy for the unfair labor practices committed. The
Act requires more than pro forma bargaining, but pro
forma bargaining is all that is likely to result unless the
Union can now bargain under conditions essentially
similar to those that would have been present had Re-
spondent bargained at the time the Act required it to
do so. If the Union must bargain devoid of all economic
strength, as it must necessarily do since the Respondent
has no need for services of the unit employees, we
would perpetuate the situation created by Respond-
ent's deliberate concealment of relevant facts from the
Union which prevented the Union from bargaining
meaningfully. To assure such meaningful bargaining
we must, therefore, restore some measure of economic
strength to the Union.
In order to recreate as nearly as possible the eco-
nomic situation that would have prevailed if the Re-
spondent had not refused to perform its bargaining
obligations in the spring of 1970, and, in order to effec-
tuate the policies of the Act in the labor dispute before
us, it is our considered judgment that in order to
remedy its 8(a)(3) and its 8(a)(5) violations Respondent
should be ordered to pay to Pelka, Rosin, Parks, and
Schaunaman amounts at the rate of their normal wages
when last in the Respondent's employ, including all
benefits they would have received under the collective-
bargaining contract which the parties fully negotiated
from the date of their termination from employment
until the occurrence of the earliest of the following
conditions: (1) the date Respondent bargains to agree-
ment with the Union on those subjects pertaining to the
effects of the closing on employees formerly employed
at the Summit operation; (2) a bona fide impasse in
bargaining; (3) the failure of the Union to request bar-
gaining within 5 days of this Decision or to commence
negotiations within 5 days of the receipt of Respond-
ent's notice of its desire to bargain with the Union; or
(4) the subsequent failure of the Union to bargain in
good faith. Of course, if the Respondent decides to
resume its Summit operation and offers to reinstate the
above employees to their same or substantially equiva-
' McGregor Printing Corp, 163 NLRB 938, 940, Drapery Manufactur-
ing Co, Inc, 170 NLRB 1706
lent positions, its liability will cease as of that date.'
Backpay shall be based on the earnings including fringe
benefits which the terminated employees named above
would normally have received during the applicable
period less any net interim earnings and shall be com-
puted on a quarterly basis in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289; N.L.R.B.
v. Seven- Up Bottling Company of Miami, Inc., 344 U.S.
344; with interest thereon, Isis Plumbing & Heating
Co., 138 NLRB 716.'
Additionally, we think it necessary in view of the fact
the Summit operation is no longer in operation and the
above-named employees and other employees may be
in different locations that the Respondent mail to each
of its employees employed on the date of termination,
as well as post at its South Bend, Indiana, business
locations, copies of the signed notice provided for be-
low. 1,
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees employed by the Respondent in the
manufacturing of tools, dies, special machinery, etc.,
employed at its South Bend, Indiana facility exclusive
of all office, clerical employees, guards and supervisors
as defined in the Act, constitute an appropriate unit for
the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. The Union has been at all times material herein the
exclusive representative of the employees in the afore-
said appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. By refusing to sign the collective-bargaining agree-
ment prepared pursuant to the memorandum of agree-
ment agreed on between the Respondent and the Un-
ion, the Respondent has engaged in and is engaging in
Member Fanning is of the opinion that the wage payment provisions of
the majority's order does not remedy Respondent's unlawful refusal to
bargain about the effects on employees of its decision to close down the
Summit operations Under the order, only those employees who were dis-
criminatorily discharged pnor to the decision to close down the operations
receive such wage payments, other employees affected by the unlawful
refusal to bargain receive nothing See Royal Plating and Polishing Co, 160
NLRB 990 For this reason and because Respondent's decision to close
down the operations was not based on economic considerations, he sees no
practical considerations weighing against the Trial Examiner's recommen-
dation that Respondent be ordered to reopen the Summit operations, and
he would adopt the Trial Examiner's recommendations with respect thereto
See Winn-Dixie Stores, Inc, 147 NLRB 788, 791, Royal Plating and
Polishing Co, 160 NLRB 990, 996, Thompson Transport Co, Inc, 165
NLRB 746, 747, Thompson Transport Co, Inc, 184 NLRB No 5, Morrison'
Cafeterias Consolidated, Inc, 177 NLRB 591, Interstate Tool Co, 177
NLRB 686, Transmarine Navigation Corporation, 170 NLRB 389
'° H W. Elson Bottling Company, 155 NLRB 714, 716, enfd as modified
379 F 2d 223 (CA 6)
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an unfair labor practice within the meaning of Section
8(a)(5) and (1) of the Act.
6. By failing and refusing to provide the Union with
information as to its contributions to the pension plan,
the Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(5) and (1) of the
Act.
7. By terminating the employment of Erwin Pelka,
Jack Parks, Gunther Rosin, and Merle Schaunaman,
the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the
Act.
8. By failing and refusing to bargain with the Union
concerning the effects of the employees of the closing
of Summit's operation, the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
9. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Summit
Tooling Company and Ace Tool Engineering Co., Inc.,
and Summit Tooling Company Division of Ace Tool
Engineering Co., Inc ., its officers , agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in District 103 of the
International Association of Machinists and Aerospace
Workers, AFL-CIO, or in any other labor organization
of its employees , by terminating or in any other manner
discriminating against employees in regard to hire or
tenure of employment or any term or condition of em-
ployment.
(b) Failing and refusing, if requested to do so by
District 103 of the International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, to sign
the collective-bargaining contract agreed on between
the Respondent and said Union.
(c) Failing and refusing to bargain collectively with
District 103 of the International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, as the
exclusive representative of all employees in the follow-
ing appropriate unit:
All employees employed by the Respondent in the
manufacturing of tools, dies, special machinery,
etc., employed at its South Bend, Indiana facility
exclusive of all office, clerical employees, guards
and supervisors as defined in the Act.
concerning the effects of the discontinuance of
the Summit Tooling Company plant operation on
such employees.
(d) Failing and refusing to provide the Union with
information as to its contributions to the pension plan.
(e) In any other manner interfering with , restraining,
or coercing its employees in the exercise of their rights
to self-organization, to form, join, or assist any labor
organization, to bargaining collectively through repre-
sentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent
that such right is affected by the proviso to Section
8(a)(3) of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Upon request, sign forthwith the collective-bar-
gaining agreement between the Respondent and the
above-named Union.
(b) Upon request, bargain collectively with the Un-
ion concerning the effects of the discontinuance of its
Summit manufacturing operation on the employees in
the above-described unit.
(c) Make Erwin Pelka, Jack Parks, Gunther Rosin,
and Merle Schaunaman whole for any loss of pay or
other benefits suffered by them in the manner set forth
in the discussion in our Decision in paragraph num-
bered 2 above.
(d) Establish a preferential hiring list of all em-
ployees in the appropriate unit, following the system of
seniority as provided under the collective-bargaining
contract, and, if operations at Summit are ever resumed
anywhere in the South Bend, Indiana, area, offer rein-
statement to those employees. If the Respondent, how-
ever , decides to resume its Summit operation , it shall
offer all those in the appropriate unit reinstatement to
their former or to substantially equivalent positions.
(e) Notify immediately the above-named individuals,
if presently serving in the Armed Forces of the United
States, of the right to full reinstatement, as provided
above, upon application after discharge from the
Armed Forces, in accordance with the Selective Service
Act and the Universal Military Training and Service
Act.
(f) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due and rights of employment under the terms of this
Order.
(g) Mail a copy of the attached notice marked "Ap-
pendix"" to each employee in the appropriate unit who
" In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order"
SUMMIT TOOLING CO. 483
was employed by the Respondent at its Summit opera-
tion immediately prior to the discontinuance on June
8, 1970. Copies of said notice, to be furnished by the
Regional Director for Region 25, shall be signed by
Respondent's duly authorized representative. There-
after, a copy shall be mailed by the Respondent to each
of the above-described employees, and additional co-
pies shall be posted by it and be maintained by it for 60
consecutive days thereafter, in conspicuous places at its
place of business, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(h) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
It is hereby further ordered that the complaint be,
and it hereby is, dismissed insofar as it alleges viola-
tions not found herein.
time offer reinstatement to those employees to their
former or to substantially equivalent positions; and bar-
gain collectively with the above-named labor organiza-
tion upon request, without prejudice to the employees'
seniority or other rights.
WE WILL make Erwin Pelka, Jack Parks, Gunther
Rosin, and Merle Schaunaman whole for any loss of
earnings and loss of pension and insurance rights and
benefits each may have suffered by reason of our dis-
crimination against them by reason of our termination
of their employment.
All of our employees are free to become or remain, or
refrain from becoming or remaining, members of the above-
named Union or any other labor organization, or to refrain
from doing so.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to mail
this notice and to post this notice at our main location.
WE WILL NOT refuse to bargain collectively with Dis-
trict 103 of the International Association of Machinists
and Aerospace Workers, AFL-CIO, about the effects of
our decision to close down the Summit Tooling Com-
pany plant on the employees who were affected by such
termination and reduce to writing any agreement
reached as a result of such bargaining.
WE WILL NOT fail or refuse, if requested to do so by
the above-named labor organization, to sign the collec-
tive-bargaining contract agreed on between us and said
Union.
WE WILL NOT refuse or fail to provide the above-
named Union with information as to our contributions
to the pension plan as required under our collective-
bargaining agreement.
WE WILL NOT discourage membership in the above-
named labor organization , or in any other labor organi-
zation of our employees, by discharging, terminating, or
in any other manner discriminating against our em-
ployees in regard to hire or tenure of employment or any
term or condition of employment.
WE WILL establish a preferential hiring list of all em-
ployees employed by us in the manufacturing of tools,
dies, special machinery, etc., at our South Bend , Indiana
facility exclusive of all office, clerical employees, guards,
and supervisors as defined in the Act who were affected
by the discontinuance of the facility, following the sys-
tem of seniority established under the collective-bargain-
ing agreement with the above-named Union and cus-
tomarily applied to the conduct of our business; and, if
the Summit Tooling Company operation is resumed at
South Bend or anywhere in the South Bend area , at that
Dated By
SUMMIT TOOLING
COMPANY AND
ACE TOOL ENGINEERING
Co., INC.,
AND SUMMIT TOOLING
COMPANY DIVISION
OF THE ACE TOOL
ENGINEERING CO.,
INC.
(Employer)
(Representative ) (Title)
We will notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, as provided above, upon
application after discharge from the Armed Forces, in ac-
cordance with the Selective Service Act and the Universal
Military Training and Service Act.
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana
46204, Telephone 317-633-8921.
TRIAL EXAMINER'S DECISION
ABRAHAM H MALLER, Trial Examiner On August 31,
1970, the Regional Director for Region 25 of the National
Labor Relations Board, herein called the Board, issued on
behalf of the General Counsel a complaint against Summit
Tooling Company and Ace Tool Engineering Co., Inc., and
Summit Tooling Company Division of Ace Tool Engineering
Co., Inc., herein called the Respondent.'The complaint al-
leged violations of Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended (29 U.S.C Sec. 151, et
seq.), herein called the Act. Briefly, the complaint alleged
that at all times since 1956 and continuing to date, the Union
has been the exclusive bargaining representative of the em-
ployees in an appropriate unit; that the Respondent has
refused to bargain collectively with the Union by refusing to
execute a contract embodying the terms agreed upon between
Lite Respondent and the Union, and by unilaterally modifying
' The complaint was based upon an original charge filed by District 103
of the International Association of Machinists and Aerospace Workers,
AFL-CIO, herein called the Union, on June 15, 1970, and an amended
charge filed on August 27, 1970
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the agreed upon contract , by denying the Union information
necessary to administer the contract and to bargain collec-
tively, by terminating a substantial portion of its operations
without communicating to the Union notice of its intention
to do so and without affording the Union an opportunity to
bargain on said termination of operations and the effect
thereof on the employees , including the maintenance of em-
ployee insurance and employees ' pensions. In its duly filed
answer, the Respondent denied any violations of the Act.
Pursuant to notice , a hearing was held before me at South
Bend , Indiana, on the following dates: November 17 through
20 and December 15 through 18, 1970. During the hearing,
the complaint was amended to allege that the Respondent
discriminatorily laid off and terminated certain employees in
violation of Section 8(a)(3) of the Act.
All parties were represented at the hearing and were
afforded full opportunity to be heard , to introduce relevant
evidence , to present oral argument , and to file briefs with me.
Briefs were filed by counsel for the General Counsel and by
the Respondent . Upon consideration of the entire record and
the briefs , and upon my observation of each of the witnesses,
I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Ace Tool Engineering Co., Inc., herein called Ace, is in the
business of tool design , with a place of business at 2816 West
Sample Street , South Bend , Indiana . Summit Tooling Com-
pany , herein called Summit, is located in the same premises
and is a wholly owned subsidiary of Ace and operates as a
division of Ace. For many years and until on or about June
8, 1970 , Summit was engaged in the manufacture of tool and
tooling products . Unlike Summit , Ace does not manufacture
any products . Walter Milovich is president of Ace, and he
and members of his family own all of its stock . Respondent,
during the 12 months immediately preceding the filing. of the
complaint herein , which period is representative of all times
material herein , manufactured , sold, and shipped from its
South Bend , Indiana , facility finished products valued in ex-
cess of $50 ,000 to points outside the State of Indiana . Accord-
ingly , I find and conclude that Respondent is now , and has
been at all times material herein, a single employer engaged
in commerce within the meaning of Section 2 (6) and (7) of
the Act, and that it will effectuate the policies of the Board
to assert jurisdiction here.
II THE LABOR ORGANIZATION INVOLVED
District 103 of the International Association of Machinists
and Aerospace Workers, AFL-CIO, is now, and has been at
all times material herein , a labor organization within the
meaning of Section 2 (5) of the Act.
III THE ISSUES
1. Whether the Respondent failed and refused to sign a
written agreement embodying the terms and conditions
agreed upon by the Respondent and the Union , in violation
of Section 8(a)(5) and (1) of the Act.
2. Whether the Respondent denied the Union information
necessary to admisister the contract and to bargain collec-
tively in violation of Section 8(a)(5) and (1) of the Act.
3. Whether the Respondent terminated a substantial por-
tion of its operation without communicating to the Union
notice of its intention to do so, and without affording the
Union an opportunity to bargain regarding said termination
of operations and the effect thereof on the employees in the
unit in violation of Section 8(a)(5) and (1) of the Act.
4. Whether the Respondent failed and refused to meet and
bargain with the Union concerning terminations of em-
ployees and the effect of such terminations upon the em-
ployees' insurance and pensions , in violation of Section
8(a)(5) and (1) of the Act.
5. Whether the Respondent discriminatorily laid off and
terminated employees in violation of Section 8(a)(3) and (1)
of the Act.
IV THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Respondent 's refusal to execute a collective-bargaining
agreement
Since about 1956, and continuing to date, the Union has
been the exclusive bargaining representative of Respondent
Summit 's employees in the following appropriate unit:
All employees employed by the Respondent in the
manufacturing of tools, dies, special machinery, etc.,
employed at its South Bend , Indiana, facility exclusive
of all office clerical employees , guards and supervisors as
defined in the Act.
The Respondent and the Union have negotiated and executed
consecutive collective -bargaining agreements . The last such
agreement was executed in 1965 and was in effect from April
9, 1966 , to September 1, 1969, and from year to year there-
after, subject to notice of termination . The Union elected to
terminate , and thereafter the parties bargained for, a new
agreement . On September 3, 1969, the Union and Summit
executed a "Memorandum of Agreement" which provided
for the execution of a collective -bargaining agreement effec-
tive to September 15, 1970 . Except for the specific provisions
set forth herein , the Memorandum of Agreement provided
that in other respects the terms of the agreement of 1966
would remain as they were in the previous contract. The
Memorandum of Agreement also provided: "This will serve
as a letter of understanding between the Company and the
Union as to the collective -bargaining agreement, effective
September 1, 1969 until the formal contract can be completed
and signed." Business Representative Robert J . Downey told
Walter E . Milovich , president of the Respondent , that he
would prepare a formal agreement and would send it to Presi-
dent Milovich for checking and signing . On January 8, 1970,
Business Representative Downey brought a written collec-
tive-bargaining agreement to President Milovich for signing.
According to Downey's credited testimony , President Milo-
vich glanced at the agreement and told Downey that there
were mistakes in the final draft Downey asked Milovich what
the mistakes were, but Milovich did not point out any. Milo-
vich told Downey that the Union had taken unfair advantage
of him and that he had signed the Memorandum of Agree-
ment only because he had a lot of work in the shop in Septem-
ber that he had to get out and that he could not stand a strike
at that time. Subsequently, on January 13, 1970, Downey
asked Milovich to furnish him in writing with a list of mis-
takes that he believed were in the final draft of the collective-
bargaining agreement and told him that he would review
these mistakes with the shop committee, and, if necessary,
would correct them. On February 4, and again on March 6,
1970, Downey wrote to Milovich asking for a list of the
alleged mistakes in the collective-bargaining agreement. No
such list was ever furnished by the Respondent, nor did the
Respondent ever sign the collective -bargaining agreement
SUMMIT TOOLING CO. 485
2 The pension and insurance plans
In 1965 Summit contracted with Lincoln National Life
Insurance Company, hereafter referred to as Lincoln Life, for
a noncontributory pension plan on behalf of the employees of
Summit (Group Annuity Contract No. GA-256). Approxi-
mately a year later, a new pension plan was negotiated, to
which the employees of Summit also contributed (Group
Annuity Contract No. GA-275). The employer was to con-
tribute at the rate of 6 cents per hour worked on and after
September 3, 1969, pursuant to the Memorandum of Agree-
ment Prior thereto, the employees had contributed at the
rate of $2 per week from October 1, 1966, through September
30, 1967, and $5 per week from and after October 1, 1967.
The Memorandum of Agreement, effective September 1,
1969, provided that Respondent Summit submit monthly
pension plan contributions to Lincoln Life and that the union
trustee receive a copy of this monthly report of the amount
paid to Lincoln Life. Employee Jack Parks was elected by the
unit employees as union trustee on or about October 3, 1969.
So far as is relevant here, the pension agreement provided
for a pension to an employee who retired at or after age 65,
with 5 or more years participation in the plan. The retirement
benefits were to be accomplished by the purchase by Lincoln
Life of an annuity, using funds contributed both by the em-
ployer and by the employee. Also, an employee's right to a
pension became "vested" upon his participation in the plan
for 10 years, that is to say, that his retirement benefits would
be accomplished by using both employer and employee con-
tributions, regardless whether he was thereafter teminated.
On the contrary, if an employee was terminated before his
retirement right became "vested," i.e., before he had par-
ticipated in the plan for 10 years, the employee received from
Lincoln Life only the return of all his contributions plus
interest thereon. The plan further provided that if the em-
ployer discontinued the pension plan, the employees who
participated in the plan would be entitled to an annuity pur-
chased from both the employer's and employees' contribu-
tions.
In addition to the pension plan, Summit had an insurance
program for its employees in the bargaining unit: Group
Disability Insurance Policy No. GD-2879 and Group Life
Insurance Policy No. GL-2879, both of which were with
Lincoln Life.
3. The alleged refusal to provide information
Beginning about October 3, 1969, Union Trustee Parks
went to see Samuel M. Sharp, manager of Lincoln Life's
branch at South Bend, Indiana, and asked Sharp if Summit
had submitted the contributions to the pension plan. Sharp
replied that he did not have the information but would get it.
Subsequently, over a period of approximately 2 months,
Parks called Sharp on the telephone several times and visited
his office two or three times in an attempt to obtain this
information. Sharp gave Parks several excuses at various
times for not furnishing the information; he did not have it,
or it had not come in, or it had been mislaid, or it had been
sent to Summit. Parks then asked Union Representative
Downey to secure this information from Sharp, since Dow-
ney had had dealings with Sharp before. On December 20,
1969, Downey wrote Sharp requesting this information. On
January 7, 1970, Sharp answered Downey's letter and stated
that this information should be obtained directly from Sum-
mit. Sharp admitted that Respondent's President Milovich
had as early as January 1970, and again in April 1970, di-
rected Sharp not to give this information to the Union. As a
result, Sharp never did furnish this information to the Union.
On December 12, 1969, Business Representative Downey
wrote to President Milovich stating that the Respondent had
failed to remit payments to the pension plan and calling his
attention to the Memorandum of Agreement which provided
that "all pension contributions to be paid to Insurance Co.
monthly. Union Trustee to receive copy of amount remitted."
The letter further stated that if these payments are not up to
date by January 8, 1970, the Union would consider it a breach
of the contract, etc. On January 8, 1970, Downey met with
Milovich. One of the matters discussed was the employer
contributions to the pension plan. According to Downey,
when he asked Milovich about the contributions, Milovich
went into a temper tantrum concerning the cost of living and
never answered Downey's question. On May 7, 1970, Dow-
ney again wrote to President Milovich referring to his letter
of December 12, 1969, and stating that the union trustee had
not received the monthly report. The letter called upon Milo-
vich to comply with the contract by furnishing Union Trustee
Parks complete reports up to date. Thereafter, in May, Presi-
dent Milovich approached Parks and asked him if he had
received the information of the employer's contribution.
Parks replied that he had not received anything. Milovich
then said: "Well, Dick [Kazmierzak] was supposed to give
you that information." They then approached Kazmierzak,
Respondent's bookkeeper, and Milovich asked Kazmierzak
whether he had given Parks a list of the company contribu-
tions. Kazmierzak replied in the negative. Thereupon, Milo-
vich instructed Kazmierzak to give the information to Parks,
and Kazmierzak did so.
The complaint also alleges that the Respondent refused on
or about July 15, 1970, to furnish the Union copies of the
health, welfare, insurance, and pension policies, plans, and
agreements provided for in the contract. The record shows
that prior to the 1969 negotiations Parks had a copy of the
pension plan and Business Representative Downey received
from the Respondent on August 8, 1969, a copy of the life
insurance plan.' There were three amendments to the pension
plan which the Union did not have in its possession, and these
were furnished to Parks on July 27, 1970.
4. Respondent's attempt to include President Milovich and
his wife in the pension plan
On July 1, 1970, Respondent sent a memorandum to Lin-
coln Life in which it stated, inter aha: "Walter E. Milovich
and Mildred K. Milovich are contributors and trustees of the
Summit Retirement plan." Again, on September 22, 1970,
Respondent sent Lincoln Life a list of employees who were
entitled either to a return of their individual contributions or
to an annuity based upon company and individual contribu-
tions. On this list, Respondent appended a notation that Wal-
ter E. Milovich and Mrs. Mildred K Milovich were "eligible
for company funds." These attempts to include the Milo-
viches in the pension plan, however, were futile. Francis C.
Thissen, manager of pension administration for Lincoln Life,
testified that the aforesaid representations by Summit were
incorrect and that, since neither Milovich nor his wife had
filed an application under the pension plan, neither was in the
program and neither would get any benefits under the plan.
I Business Representative Downey denied that he received a copy of the
life insurance plan on August 8, 1969, and stated that the receipt which he
signed referring to the life insurance policy was in error He testified that
the receipt should have been for a copy of the pension plan I do not credit
his testimony in this regard
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Terminations of employees
a. Parks
Since 1963, Jack Parks had been a tool and die maker
employed by Respondent Summit. He was a member of the
Union and its job steward during 1969 and 1970. In addition
he was the union trustee of the pension fund from October
3, 1969. On or about June 4, 1970, Parks finished a job for
Bendix Corporation and pushed it to the shipping department
of the shop. At that time President Milovich said to Parks,
"I'm going to have to lay you off. I don't have any other work
for you ... If something comes in, I'll call you." Parks then
left but returned to the shop on June 8, 1970, to get his tools.
President Milovich admittedly did not tell Parks that he was
terminated, nor did he ever send Parks a notice of termina-
tion.' When Parks picked up his tools, President Milovich
said , "Good. I am going to call the rest of the fellows and
have them pick up their tools because I am closing the busi-
ness." Parks then asked President Milovich if he was going
to accept the total premiums from the employees so they
could continue their group insurance policy. Parks pointed
out that the premiums would have to be sent through Summit
because it was a group policy, and that the laid-off employees
could not send it to Lincoln Life directly because Sharp had
told him that they would not accept individual premiums and
that they would have to be sent in by Summit for the laid-off
men. Milovich replied that he did not feel he had any obliga-
tion to the laid-off men and that he would not honor those
premiums for the group insurance plan. He pointed to the
darkened shop and told Parks, "You, Pelka, Bob Downey
and the union are the cause of all these idle machines and, of
course not having any work. I told Merle Schaunaman that
you was the cause of this condition in the shop."'
b. Pelka
Since 1967, Erwin Pelka was employed as a toolmaker by
Respondent Summit . Pelka had been job steward prior to
Parks' tenure. On May 15, 1970, President Milovich came up
to where Pelka was working and told him that he would lay
off Pelka at the end of the shift. Pelka inquired if anyone else
was going to be laid off, and Milovich replied in the negative.
Pelka protested that under the collective-bargaining agree-
ment , a person with less seniority had to be laid off first, and
that he would file a grievance. Milovich replied, "Okay, in
this case Hunsberger's got to go." However, Hunsberger was
not laid off. Later, Milovich asked Pelka to complete some
unfinished work, and Pelka worked until May 19, 1970, when
he finished this job. Milovich then sent him home. When
Milovich laid off Pelka, he admittedly told him that he would
call him when he got more work. Pelka returned to the plant
on May 29, 1970, and picked up his tools. On this occasion,
President Milovich pointed to the dark shop and said, "You
just look at it, that's all yours, Parks' and Downey's doing.
The Union is fixing me up to go out of business."5 President
Milovich admitted that in none of the foregoing conversa-
tions did he tell Pelka that he had been terminated, nor did
he ever send Pelka a notice of termination. It should also be
noted that Pelka received holiday pay for Memorial Day to
which he was entitled if he were on layoff status at the time
Parks found out about his termination in July, when Lincoln Life re-
jected his claim for reimbursement of medical expenses for his daughter's
tonsillectomy, citing the fact that Respondent had notified the insurance
company that Parks had been terminated on June 8, and that his insurance
coverage was thereby terminated
The credited testimony of Parks I do not credit Milovich's denial
The credited testimony of Pelka President Milovich admitted telling
Pelka that he was "one of the men who closed" the shop
and which he would not have received had he been ter-
minated prior thereto.
c. Rosin
Since 19V Gunther Rosin had been employed by Re-
spondent Summit as a tool machinist. He was a member of
the Union and in 1969 and 1970 had served as shop commit-
teeman. On May 25, 1970, President Milovich laid off Rosin
because of lack of work. However, Milovich cautioned him,
"Don't quit. You are the best grinder in town and I want you
back. Look, any kind of job you get your hand on." He added
that it was all the Union's, Pelka's, and Parks' fault that there
were no jobs in the shop.' On June 8, 1970, President Milo-
vich telephoned Rosin and said , "I am going out of business."
A few days later Rosin took his tools out of the shop. About
a week later, Rosin came to the shop and attempted to pay
his insurance to President Milovich. Milovich refused to ac-
cept the payment. He told Rosin, "No insurance. I'm not in
the insurance business and we are out of business." Rosin
then learned from Parks that the amount of the insurance
premium was approximately $28. About a week later, Rosin
attempted to pay that amount to Richard Kazmierzak, Sum-
mit's office manager. Kazmierzak refused to accept the
money and told Rosin that he could not take it on orders from
President Milovich. As in the case of Parks and Pelka, Milo-
vich admittedly never told Rosin that he was terminated, nor
did he send Rosin a notice of termination. It is also significant
that thereafter Rosin received a check for his vacation pay as
a laid-off employee under the contract.
d. Schaunaman
Merle Schaunaman worked for Respondent Summit as a
tool and die maker since 1956. He was a member of the
Union. On or about May 13, 1970, Schaunaman went to the
office and asked President Milovich for a 90-day leave of
absence. Milovich asked Schaunaman if he could finish the
project he was working on before he left. Schaunaman replied
in the negative and suggested that Rapela and Hunsberger
could complete the project, as they had the requisite skills.
President Milovich later came back to Schaunaman and told
him that Rapela and Hunsberger would take over the job and
that Schaunaman could have his leave of absence beginning
May 15.' President Milovich later told Parks, Pelka, and
Rosin that he had given Schaunaman a leave of absence. The
next day Schaunaman again spoke to President Milovich and
pointed out to him that, since Schaunaman's wife was to start
her vacation the day that his 90-day leave of absence was up,
he would like to have his 2 weeks' vacation at the end of the
90-day leave of absence. President Milovich agreed. Milovich
also told him to put his request in writing. Schaunaman did
so on May 15, 1970, and delivered it personally to Milovich.
Milovich told him to put it on his desk, and Schaunaman did
so. By letter dated May 16, 1970, but not sent until June 5,
1970, Milovich informed Schaunaman that his request for
leave had been denied and that his employment with Summit
was terminated.
On June 8, 1970, Schaunaman went to the shop and talked
with President Milovich. Milovich said, "I suppose you are
here to talk about that letter." Schaunaman replied, "Yes. I
am. I'm just a little bit surprised to get it." President Milovich
The credited testimony of Rosin Milovich denied that he had laid off
Rosin He testified that Rosin left the plant because he had no work and that
he, Milovich, asked Rosin not to quit because Respondent would have work
coming in I do not credit Milovich's version
' Milovich denied that he had granted Schaunaman's request for a leave
of absence I do not credit his testimony
SUMMIT TOOLING CO. 487
told Schaunaman, "Well, Summit has closed its doors. They
are going out of business forever. They will no longer be in
operation at molding tools and dies." At the time Rapela and
Hunsberger were working on mold dies. On June 10, 1970,
Schaunaman wrote Respondent Summit , stating he was filing
a grievance to be reinstated as having been on leave of ab-
sence.
On June 15, 1970, Schaunaman came to the shop again and
spoke to Milovich who told him, "I will tell you, Jack Parks,
or anybody else that it's the union's fault I haven't got any
work. They forced me into too many things."
On August 24, 1970, Schaunaman wrote Respondent Sum-
mit stating that his leave of absence and vacation would
expire on August 31, 1970, and requested Summit to advise
him whether he should report for work on that date or go on
Gunther Rosin 2/6/56
Jack Parks 12/23/63
Merle Schaunaman 10/22/56
5/26/70 Quit -- Pulled Yes
tools
Individual
contribution
due
6/4/70 Pulled tools --
quit
Individual
contribution
due
5/15/70 Leave of Yes
absence
denied
Individual
contribution
due
Erwin Pelka 7/14/67 5/19/70 Quit Yes
Individual
contribution
due
As to seven other employees, however, Respondent ap-
pended the notation that they had either been transferred to
Ace or had been laid off and were entitled to both Company
and individual contributions. Lincoln Life acted upon this
advice.
Also, as previously noted, the termination of Parks had the
effect of denying him coverage under the group disability
insurance plan for a tonsillectomy performed on his daugh-
ter.
7 The closing of Summit 's operations
Summit closed down its operations on June 8 , 1970. Sev-
eral employees , including Rapela and Hunsberger who were
layoff. On August 31, 1970, Schaunaman again talked to
President Milovich and asked about going back to work.
Milovich told him that Summit was out of business.
6. The effect of the termination
The termination of Parks, Pelka, Rosin, and Schaunaman
before their interest in the pension plan had become "vested"
had the effect of entitling them only to a return of their
contributions to the plan, plus interest, and denied them any
participation in the Company's contributions. To insure this,
the Respondent on September 22, 1970, sent to Lincoln Life
a list of its employees with a notation as to what each was
entitled from the pension plan. With regard to the four named
employees, the Respondent wrote:
Hiring Date Termination Comments Union
working on a fishing bobber, a project in which President
Milovich was personally interested, were transferred to the
payroll of Ace. No notice was given to the Union of Respond-
ent's intention to close Summit's operation . Business Repre-
sentative Downey was informed about the closing in the be-
ginning of June by members of the unit. On or about June 4,
1970, Downey telephoned Milovich, attempting to set up a
meeting with regard to Pelka's grievance, and told him that
there would be a lot of things to de discussed if it were true
that he was closing the plant. President Milovich told Dow-
ney that Pelka did not have a grievance, so that he did not
have to meet on that. He indicated that the first time he would
be available for a meeting would be sometime after July 1. On
June 5, 1970, Downey wrote to Milovich, referring to the
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
latter 's refusal to set any date for a meeting sooner than July
1. Downey pointed out that "The first reason for requesting
this meeting as I told you was in regard to laid-off employees
being able to continue their group insurance coverage."
On or about July 14 , 1970, approximately a month after the
charge was filed, Downey met with Guy H. McMichael, at-
torney for the Respondent , at the latter 's office . Attorney
McMichael told Downey that Parks and Schaunaman had
been terminated , and Downey said that the Union would
arbitrate the discharges as well as Pelka's improper layoff.
They also discussed Parks ' claim for reimbursement for his
child 's tonsillectomy . On or about July 30, Downey made an
offer to settle the matter by putting Parks on layoff and seeing
to it that his insurance claim was paid , and that the other
employees would also be put on layoff status. Downey left a
wntten offer with Attorney McMichael who said that he
would get President Milovich to his office and have him sign
the settlement agreement . A few hours later that day, Dow-
ney telephoned Attorney McMichael who told him that
President Milovich wanted to study the matter further and
that he would have an answer the next morning . The follow-
ing day , Downey again telephoned Attorney McMichael who
told him that President Milovich would not sign the proposed
settlement but wanted to study it over the weekend , Downey
replied ; "Don't bother," and filed an amended charge.'
B Concluding Findings
1. As to Respondent 's refusal to sign the
collective-bargaining agreement
By its terms, the Memorandum of Agreement provided
that it would serve as "a letter of understanding ... until the
formal contract can be completed and signed ." There is no
dispute that the Respondent has failed and refused to sign the
collective-bargaining agreement tendered by the Union. The
Respondent seeks to justify its refusal to sign the collective-
bargaining agreement by pointing to Business Representative
Downey's delay in presenting the collective -bargaining agree-
ment for signature and to his statement to members of the
bargaining unit that the Memorandum of Agreement was
perfectly legal and effective . Patently , this is no defense. Sec-
tion 8(d) of the Act explicitly requires "the execution of a
written contract incorporating any agreement reached if re-
quested by either party ... " When the collective -bargaining
agreement was presented to him , Milovich merely glanced at
it and told Downey that there were mistakes in the final draft
Although Downey asked Milovich what the mistakes were,
Milovich did not point out any. Nor did he ever point out any
mistakes , although on three different occasions thereafter
Downey asked Milovich to point out the alleged mistakes in
the collective-bargaining agreement . The conclusion is ines-
capable that either Milovich had a change of heart after
signing the Memorandum of Agreement or, as he told Dow-
ney when the agreement was presented to him for his signa-
ture , he had signed the Memorandum of Agreement merely
to avoid a strike at that time . In either event , it must be
concluded that the Respondent , by failing to sign the collec-
tive-bargaining agreement violated Section 8(a)(5) of the Act.
Heinz Co. v.N.L.R.B., 311 U.S . 514, 526 ; Tex-Tan Wel-
hausen Co ., etc. v . N.L.R.B., 419 F.2d 1265 (C.A.5).
2. As to Respondent's refusal to provide information
Laying aside the Union's attempts to obtain from Lincoln
Life information as to Respondent's contributions to the pen-
sion plan, it is clear that the Union demanded this informa-
tion directly from Respondent as early as December 12, 1969,
and repeated this demand on January 8, 1970. Only after a
third demand in May did Respondent provide this informa-
tion. Respondent's refusal to furnish this information was
deliberate. Witness: President Milovich's directions to Lin-
coln Life's representative not to supply the information to the
Union. The obvious reason for Respondent's actions was the
fact that it had violated the Memorandum of Agreement by
failing to make any contributions to the plan since the signing
of the Memorandum of Agreement, not doing so until Febru-
ary 20, 1970, some 6 months later. That the Union was
entitled to this information cannot be denied. Aside from the
fact that the Memorandum of Agreement required the Re-
spondent to furnish this information monthly to the Union
Trustee, such information was necessary in order to enable
the Union to determine whether the interests of the unit
members in the pension fund were being adequately protected
and whether it might be necessary to bargain for a change in
a subsequent agreement. Accordingly, I find and conclude
that by refusing to furnish the Union with this information,
the Respondent violated Section 8(a)(5) and (1) of the Act.
As to the allegations in the complaint that the Respondent
refused to furnish the Union with copies of the health, wel-
fare, insurance, and pension policies, the record reveals that
Parks had a copy of the pension plan prior to the 1969 con-
tract negotiations. There were three amendments to the plan,
one of which was made on October 1, 1967, another Septem-
ber 1, 1969, and a third on October 1, 1969 These were
furnished to Parks on July 27, 1970. The amendments do not
appear to be of major significance. With regard to the life
insurance plan, it appears that Business Representative Dow-
ney gave Respondent a receipt for a copy of that policy on
August 8, 1969. The record does not reveal that the Union
requested a copy of the disability insurance plan. Accord-
ingly, I find and conclude that the Respondent did not refuse
to furnish copies of the various policies to the Union.
3. As to the layoffs and terminations
The General Counsel contends that Pelka's layoff was dis-
criminatory in that Hunsberger, a nonunion employee, and
Rapela were retained, although Pelka, as a shop committee-
man, had superseniority under the collective-bargaining
agreement (adopted by the Memorandum of Agreement).'
While Respondent's failure to accord Pelka superseniority
may have been a breach of the contract, it is not in and of
itself a violation of the Act. However, under the facts of this
case, I am compelled to find that Pelka's layoff was motivated
by Respondent's union animus and Pelka's union activity.
This is evidenced by Milovich's statements made a few weeks
later to Pelka, Parks, Rosin, and Schaunaman, blaming the
Union and Pelka for Milovich's decision to close the plant.
Also, Hunsberger, a nonunion employee, was retained while
Pelka was laid off. Respondent sought to justify Pelka's layoff
by pointing out that Hunsberger was working with Rapela on
a special project that required a moldmaker's skill and that
Pelka was not experienced as a moldmaker. In rebuttal, Pelka
testified that he had told Milovich of his moldmaking experi-
ence prior to going to work for the Respondent, and at the
hearing he exhibited products made from molds built by him
at a former employer. In sum, there is substantial evidence
The foregoing is based upon Downey's credited testimony Attorney
McMichael did not testify
The General Counsel does not contend that the layoffs of Parks and
Rosin were discriminatory
SUMMIT TOOLING CO. 489
that Pelka was experienced in moidmaking, and I do not
credit Milovich's testimony as to Pelka's lack of experience
as a moldmaker. I therefore find and conclude that Pelka was
discriminatorily laid off in violation of Section 8(a)(3) and (1)
of the Act 10
As previously noted, Schaunaman was terminated on May
15, 1970, but was not notified of the termination until after
June 5, 1970, when Respondent sent him a letter denying his
request for a leave of absence. According to Respondent's
letter to Lincoln Life, Pelka was terminated on May 19,
Rosin on May 26, and Parks on June 4, 1970. None was ever
notified that he had been terminated. These terminations had
the effect of depriving the men of their participation in com-
pany contributions to the pension fund and of coverage under
the other insurance policies, which they would have retained
had they been kept on layoff status. I find that these termina-
tions were effectuated to penalize the men by depriving them
of the aforesaid benefits and were based on their union mem-
bership and activites. All four were union members, and three
were union leaders in the unit. As noted, two were personally
blamed, along with the Union, by Milovich for his decision
to close the plant. Even when the men, unaware of the fact
that they had been terminated, sought to keep their insurance
in force by making the required payments, Respondent pre-
vented them from doing so by refusing to accept their ten-
dered payments. Respondent attempted to justify these termi-
nations by pointing to the fact that, sometime after their
layoffs, the men came to the shop and removed their tools and
Milovich interpreted their actions as quitting. The attempted
justification must be rejected. As the men had been laid off,
it was only natural that, instead of remaining idle for an
indefinite period, they would seek interim employment, and
in order to do so they would need their tools. Indeed, it would
be unreasonable to expect them to do otherwise. I therefore
conclude that Respondent's termination of Parks, Pelka,
Rosin, and Schaunaman violated Section 8(a)(3) and (1) of
the Act
4. As to the termination of Summit 's operations
Respondent terminated Summit 's operations and closed
the shop on June 8, 1970, without notice to the Union and
without giving the Union an opportunity to bargain about the
closing . As Summit was a division of Ace and both con-
stituted a single employer, the closing of Summit must be
considered a partial closing of Respondent's business. See,
e.g., Ozark Trailers , Incorporated, et al., 161 NLRB 561;
Drapery Manufacturing Co., Inc., et al ., 170 NLRB No. 199.
It is settled Board law that bypassing the statutory bargaining
representative of the employees and failing to bargain over
the decision to close permanently a partial operation consti-
tutes a violation of Section 8(a)(5) of the Act. Ozark Trailers,
Incorporated, et al., supra ; Royal Plating and Polishing Co.,
Inc., 148 NLRB 545, 546 , Supplemental Decision 152 NLRB
619, reversed and remanded 350 F.2d 191 (C.A. 3), Second
Suplemental Decision 160 NLRB 990; Thompson Transport
Company, Inc, 165 NLRB 746, remanded 406 F.2d 698
(C.A. 10), Supplemental Decision 184 NLRB No. 5; Drapery
Manufacturing Co., Inc., supra, modified 425 F.2d 1026
(C.A 8) 11
10 The foregoing finding is not affected by the fact that Pelka filed a
grievance because he was not accorded supersemority The grievance
related solely to his claimed rights to supersentority under the contract It
does not affect the Board's jurisdiction to determine whether, irrespective
of the claimed supersenrority, the layoff was also an unfair labor practice
' 1 In Ozark Trailers, the Board noted its respectful disagreement with the
Courts of Appeal for the Third and Eighth Circuits and adhered to its
position that a failure to bargain with the union in such circumstances is a
There is no evidence in the instant case that the closing of
Summit's operations was due to economic reasons, nor does
the Respondent claim that it was. Thus, Respondent states in
its brief: "Although during the first week of June 1970, the
only work being performed in the shop was that upon the
special project of the owner, the Company had been bidding
upon jobs and had every intention of continuing in business."
And Sharp, Lincoln Life's representative, testified that early
in June Milovich told him that he had to turn away a job of
some $30,000 because he had no employees In its brief,
Respondent states the reason for closing Summit as follows:
"In this case the decision and the closing was simultaneous
and precipitated by the simple economic fact that a continua-
tion of a business is impossible without the presence of em-
ployees to perform the work."12 This is, indeed, a curious
argument. In effect, Respondent is saying that he laid off his
employees, then terminated them, and then turned away busi-
ness and closed the plant because he no longer had any em-
ployees. As the terminations of the employees was violative
of the Act, Respondent is using his violations to justify the
closing of the plant without notice to the Union. President
Milovich's statements and his entire course of conduct com-
pel a finding that his decision to close Summit was motivated
by his animus against the Union and his union employees. I
find and conclude that the Respondent violated Section
8(a)(5) and (1) of the Act by closing a part of its operations
without notice to the Union and without giving the Union an
opportunity to bargain concerning the closing.
Wholly apart from the foregoing, it is clear that the Re-
spondent failed and refused to bargain with the Union about
the effects on the employees of the closing of Summit. Thus,
when Milovich told Parks that he was closing Summit and
Parks asked about continuation of the insurance, Milovich
told him that he had no obligation to the laid-off people and
"would not meet with the Union on this matter because there
was no people left." Only after the charge was filed did Re-
spondent go through the motions of bargaining with the Un-
ion concerning the effects of the closing. As noted above,
Business Representative Downey met with Attorney McMi-
chael, representing the Respondent, on July 14, 1970, approx-
imately a month after the charge was filed. They worked out
an agreement to put the terminated employees on layoff
status and to see to it that Parks' claim for his daughter's
tonsillectomy was paid. But, although Downey drafted the
agreement and presented it to Attorney McMichael, Milo-
vich refused to sign it. Twice he asked for more time to study
the matter. This was not good-faith bargaining. Accordingly,
I find and conclude that the Respondent failed and refused
to bargain with the Union concerning the effect of the closing
upon the employees, in violation of Section 8(a)(5) and (1) of
the Act.
violation of Section 8(a)(5) of the Act The Board also adhered to its position
in Drapery Manufacturing Co., supra, and in the enforcement proceeding
in the Eighth Circuit unsuccessfully urged the adoption of its position It
should be noted, additionally, that in modifying the Board's Decision in
Drapery, the Eighth Circuit relied heavily upon the fact that the closing was
due to economic losses and the machinery was dismantled and removed
from the premises after the closing As is discussed in the text, these circum-
stances are not present in the instant case
11 Contrary to Respondent's statement that it had no employees, the
record shows that Hunsberger and Rapela still remained in Respondent's
employ and were transferred to Ace's payroll when Summit was closed
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with the operations of the
Respondent set forth in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
VI THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3), (5), and
(1) of the Act, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Respondent has failed and refused
to sign the collective-bargaining agreement agreed upon be-
tween it and the Union, I shall recommend that the Respond-
ent be ordered to do so forthwith. In this connection, I am
of course aware of the fact that Respondent had ceased its
Summit operation. However, certain employees' rights may
have arisen from the collective-bargaining agreement, and the
Union may desire to enforce such rights against the Respond-
ent.
With regard to the remedy to be applied to Respondent's
failure to bargain with the Union about its decision to close
Summit, as well as with regard to its failure to bargain with
the Union concerning the effects upon the employees of the
closing of Summit, the Board in the past has recognized that
a bargaining order , alone , would not serve as an adequate
remedy for the unfair labor practices committed, because the
Union would not be bargaining with the same strength which
it had when the plant was open. Thus, in its Second Supple-
mental Decision in Royal Plating and Polishing Co., Inc., 160
NLRB 990, after a remand from the Court of Appeals for the
Third Circuit, the Board in fashioning a remedy said:
It is essential, of course, that Respondent be required to
bargain, upon request, about the effects of the closing on
the Bleeker Street plant employees. Under the present
circumstances, however, a bargaining order, alone, can-
not serve as an adequate remedy for the unfair labor
practices committed. The Act requires more than pro
forma bargaining, but proforma bargaining is all that is
likely to result unless the Union can now bargain under
conditions essentially similar to those that would have
obtained, had Respondent bargained at the time the Act
required it to do so. If the Union must bargain devoid
of all economic strength, we would perpetuate the situa-
tion created by Respondent's deliberate concealment of
relevant facts from the Union which prevented the Un-
ion from meaningful bargaining. We cannot assure such
meaningful bargaining without first restoring some
measure of economic strength to the Union, since the
Respondent should have bargained when it was still in
need of its employees' services. (Id at pp. 997-998)
Similarly, in Thompson Transport Company, Inc., Supple-
mental Decision, 184 NLRB No. 5, the Board recognized
that "further bargaining, in the sense contemplated by the
Act, would only be effective on the present facts if we were
to direct Respondent to restore its Phillipsburg terminal,
reinstate the employees, and then bargain over the effects of
the decision to close." See, also, Winn-Dixie Stores, Inc., 147
NLRB 788, 791, modified 361 F.2d 512 (C.A. 5), cert. denied
385 U.S. 935; Ozark Trailers, Inc., 161 NLRB 561, 571.
In the foregoing cases, however, the Board did not require
the companies to reestablish the discontinued operation, be-
cause of special circumstances: First, in each of the cases the
closing of the partial operation, unlike the instant case, was
due solely to economic considerations." Second, in Royal
Plating, supra, the partial closing involved in the case was
followed by a complete cessation of operations by the Com-
pany. In Winn-Dixie, supra, the Board pointed out:
The nature of the violation would justify us in directing
the Respondent to restore the status quo ante by reestab-
lishing the discontinued operation. However, we believe
that our remedy should also be tempered by practical
considerations. Reviewing the nature of the Respond-
ent's general business operations, the likelihood that the
affected employees are suitable for employment else-
where in the Respondent's organization and the possibil-
ity that the discontinued operation may now be out-
moded, we are of the opinion that such reestablishment
is not essential in this case to the molding of a meaning-
ful remedy suited to the practical needs of the situation
before us. We shall therefore not impose any such re-
quirement. (Id. at p. 791)
Similarly, in Thompson Transport Co. (original decision),
165 NLRB 746, 747, the Board pointed out that "practical
considerations ... dictate against restoration of the Phillips-
burg terminal as being impractical ... since the terminal has
been closed for a considerable period of time and the trucks
and other equipment have been shipped some distance
away."
Again, in Ozark Trailers, supra, the Board noted:
The nature of the violations would justify directing the
Respondents to restore the situation existing prior to the
closedown of the Ozark operation by reestablishing the
discontinued operation. But this appears impractical as
the plant has been shut down for a considerable period
of time and the machinery has been shipped some dis-
tance away. (161 NLRB at p. 571)
The remedies devised in those cases were, therefore, a
necessary equitable attempt to accommodate the harm done
to the employees with the economic necessity and situation
of the employer.
These considerations are inapplicable to the instant case.
As noted above, the Respondent closed Summit's operation
not because of economic necessity but because of animus
against the Union and the union employees. It does not ap-
pear from the record that the premises which Summit rented
from Respondent's president have been rented to any other
concern. Nor does it appear that the equipment of Summit
has been moved out of the premises. In short, there is nothing
to prevent the Respondent from reentering the tool and die
business , voluntarily or otherwise.
It is apparent that an order requiring the Respondent to
bargain with the Union about the closing and about the
effects of the closing would be ineffective, as with Summit
closed the Union has been deprived of its economic strength.
Indeed, this has been amply demonstrated in the instant case.
Thus, when the Union sought to bargain concerning the
effects of the closing and the Union and Respondent's attor-
ney agreed upon a minimal restoration of benefits (i.e.,
putting the terminated employees on layoff status so that they
would not be deprived of their pension and insurance be-
nefits), Respondent's president refused to honor the agree-
ment, but insisted upon "thinking it over."
" This was also the case in Drapery Manufacturing Co., Inc, 170 NLRB
No 199, modified 425 F 2d 1026 (C A 8)
SUMMIT TOOLING CO 491
It therefore appears that the only effective remedy is to
require the Respondent to reopen the Summit operation, offer
reinstatement to the employees who were employed by Sum-
mit on May 13, 1970," reinstate their pension and insurance
rights, and make them whole by giving them backpay, less
interim earnings, computed in the customary manner with
interest," from the date of closing until the Respondent has
done so.16
Inasmuch as the Respondent has ignored the exclusive
bargaining representative of the employees with regard to the
decision to close Summit and with regard to bargaining con-
cerning the effects of the closing, and may do so again if the
plant is reopened, the order should further provide that the
Respondent be required to bargain with the Union as the
exclusive bargaining respresentative of the employees in the
unit with regard to any future closing of Summit and with
regard to the effects of such a closing.
Having found that the Respondent in violation of Section
8(a)(3) and (1) of the Act discriminatorily terminated Parks,
Pelka , Rosin , and Schaunaman, I shall recommend that the
Respondent be required to make them whole for any loss they
may have sustained by reason of Respondent's discrimination
against them , including reinstatement of pension and insur-
ance status and benefits of which they have been deprived by
reason thereof.
" As the layoffs and terminations of the employees which began on or
about May 15, 1970, appear to have been connected with, and anticipatory
of, the closing of Summit, the date of May 13 is selected as the date for
determining which employees have been adversely affected by the closing
" F W Woolworth Co., 90 NLRB 289, Isis Plumbing and Heating
Co, 138 NLRB 716
'6 This remedy is consistent with the Board's decisions in Fibreboard
Paper Products Corporation, 138 NLRB 550, enfd 322 F 2d 411, affirmed
379 U S 203, and Senco, Inc, et al, 177 NLRB No. 102 In Fibreboard,
despite the fact that the termination of the maintenance work was economi-
cally motivated , the Board ordered the company to reinstate the operation,
to offer reinstatement to the employees , and to make them whole Similarly,
in Senco , the Board ordered the respondents to offer reinstatement to the
affected employees, with backpay "from the date of their layoff to the date
of reinstatement " It is noted that the Board in Senco did not order the
respondents to reopen the closed plant However , as the Board found that
all of the plants operated by the respondents constituted an integrated
enterprise engaged in the same work, it ordered that the "Respondent
Corporations " offer reinstatement , and it is apparent that the reinstatement
of the employees in any of respondents ' plants would have the same effect
as if they had been reinstated in the plant previously closed This situation
does not prevail in the instant case Ace is not engaged in tool and die
making, it manufactures nothing Consequently, ordering the Respondent to
offer reinstatement to the affected employees can be accomplished only if
the Summit operation is reopened
Having found that Pelka was discriminatorily laid off by
the Respondent, I shall recommend that the Respondent be
required to make him whole by reason of any loss of pay
which he suffered as a result of such discrimination against
him.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and is a single employer.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The unit set forth in section IV, above, of this Decision,
constitutes an appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
4. The Union has been at all times material herein the
exclusive representative of the employees in the aforesaid
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing to sign the collective-bargaining agreement
prepared pursuant to the Memorandum of Agreement agreed
upon between the Respondent and the Union, the Respond-
ent has engaged in and is engaging in an unfair labor practice
within the meaning of Section 8(a)(5) and (1) of the Act.
6. By failing and refusing to provide the Union with infor-
mation as to its contributions to the pension plan, the Re-
spondent has engaged in an unfair labor practice within the
meaning of Section 8(a)(5) and (1) of the Act
7. By discriminatorily laying off Erwin Pelka, the Respond-
ent has engaged in an unfair labor practice within the mean-
ing of Section 8(a)(3) and (1) of the Act.
8. By terminating the employment of Erwin Pelka, Jack
Parks, Gunther Rosin, and Merle Schaunaman, the Respond-
ent has engaged in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
9. By closing the operation of Summit without notice to the
Union and without giving the Union an opportunity to bar-
gain concerning the decision to close such operation, the
Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
10. By failing and refusing to bargain with the Union con-
cerning the effects upon the employees of the closing of Sum-
mit's operations, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the
Act.
11. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act
[Recommended Order omitted from publication.]