Universal Security Instruments, Inc.

National Labor Relations Board - Board Decisions

Jul 17, 1980

250 N.L.R.B. 661 (N.L.R.B. 1980)

UNIVERSAL SECURITY INSTRUMENTS, INC
Universal Security Instruments, Inc. and Industrial
Union of Marine & Shipbuilding Workers of
America, AFL-CIO. Case 5-CA-9026
July 17, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On August 8, 1979, Administrative Law Judge
Leonard M. Wagman issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering memorandum and a
motion to strike certain factual assertions in Re-
spondent's brief. 1
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order as
modified herein.
1. The Administrative Law Judge found, and we
agree for the reasons stated by him, that as of Sep-
tember 12, 1977, the employees working at Re-
spondent's newly established plant at Owings Mills,
Maryland, constituted an accretion to the existing
bargaining unit of production and maintenance em-
' In fn. I of its brief, Respondent states that "between the time of the
hearing and the issuance of the Administrative Law Judge's Decision, the
Company in fact made offers of employment at its Potee Street plant to
each of the 29 employees who had declined offers of employment at
Owings Mills." No evidence of such offers was introduced at the hearing
in this case.
On October 26, 1979, the General Counsel filed a motion to strike this
footnote on grounds that no testimony or exhibits relating to such events
were adduced by Respondent during the hearing, and that, even if that
footnote is construed as a post-hearing motion to reopen the record for
receipt of new evidence, there is no showing of relevance to the issues
herein, which involve Respondent's unlawful conduct vis-a-vis its
Owings Mills, Maryland, facility. Inasmuch as Respondent's allegations
regarding offers of employment at its Potee Street plant are matters
which are properly to be considered at the compliance stage of this pro-
ceeding, we make no findings regarding these allegations at this time and
thus find it unnecessary to pass upon the General Counsel's motion
a Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
The Administrative Law Judge's Decision at fn. 2 contains an appar-
ently inadvertent error with regard to testimony of Respondent's attor-
ney, Stephen Shawe, as to the date of a conversation between Shawe and
the Charging Party's regional director, Earl W. Barnes That footnote re-
flects that Shawe testified that the date of the conversation was October
28, 1977. However, the transcript of the hearing shows that Shawe testi-
fied that the conversation occurred on September 28, 1977. and we so
find
ployees at Respondent's plants at Potee Street and
on Hollins Ferry Road in Baltimore, Maryland,
and that by refusing to recognize the Charging
Party, herein also called the Union, as the exclusive
collective-bargaining representative of the produc-
tion and maintenance employees at the Owings
Mills plant and to apply the terms of the contract
to them, Respondent violated Section 8(a)(5) and
(1) of the Act. We also agree with the Administra-
tive Law Judge, for the reasons stated by him, that
Respondent violated Section 8(a)(5) and (1) of the
Act by its unlawful refusal to bargain over its deci-
sion to close the Hollins Ferry Road Plant, the ef-
fects of that decision, and the transfer of unit work
and employees from Hollins Ferry Road to Owings
Mills in October 1977.3
In its exceptions to these findings, Respondent
claims, inter alia, that by virtue of the "manage-
ment rights" clause of the collective-bargaining
agreement between it and the Union,4 in particular
the words "right to relocate its plant or any por-
tion thereof," it was not required to notify or bar-
gain with the Union about the decision to close its
Hollins Ferry Road plant, the transfer of unit work
to the Owings Mills plant, the offer of transfers to
Owings Mills to the employees from Hollins Ferry
Road, or the effects of any of those decisions. We
disagree and, like the Administrative Law Judge,
find that the Union did not waive its right to bar-
gain about any of these matters.
The Act requires that an employer must negoti-
ate with the bargaining representative of its em-
ployees, concerning a partial discontinuance or
shifting, change, or relocation of its business oper-
ations affecting the terms and conditions of em-
ployment of unit employees, as well as concerning
3 The Administrative Law Judge did not make any findings as to
whether Respondent violated the Act when in February 1978, it offered
transfers to the Owings Mills plant to 90-100 Hollins Ferry Road em-
ployees, without first consulting and bargaining with the Union. As the
issues were fully litigated and the record establishes that these transfers
were so made, we find Respondent violated Sec. 8(aXS) and (1) of the
Act by making these transfer offers to its employees without first bar-
gaining with the Union about the matter of the transfers and the employ-
ees' attendant rights.
4 Art. XII of the party's collective-bargaining agreement reads as fol-
lows:
The Union recognizes that the Company shall have the sole and ex-
clusive jurisdiction of the management and operation of its business,
the direction of its workforce, including the assignment of tasks and
machines to employees, the right to maintain discipline and efficien-
cy in its plant, the right to promulgate and enforce reasonable work-
ing rules, the right to hire, discipline and discharge employees sub-
ject to the provisions of this Agreement, the right to establish start-
ing times and quitting times, to establish or discontinue shifts, to
assign employees to shifts, and the right to relocate its plant or any
portion thereof It is agreed that the rights enumerated above shall not
he deemed to ex clude preexisting rights of management not herein
listed to operate its business in the manner it sees fit, provided that
they do not conflict with other provisions of this Agreement [Em-
phasis supplied I
250 NLRB No. 92
661
DECISIONS OF NATIONAL. LAIBOR RELATIONS BOARD
the effects thereof. While the Board acknowledges
that a labor organization may waive the statutory
rights granted to it and to the employees it repre-
sents, we will not lightly infer such a waiver,
which must be in "clear and unmistakable" lan-
guage. 5
In the instant case, Respondent opened the
Owings Mills operation in September 1977 as an
expansion of the Hollins Ferry Road operation. At
that time Respondent did not intend to close the
latter operation and nothing had been transferred
from the older facility to the newer one. Respond-
ent waited until October to unilaterally transfer
some employees from Hollins Ferry road to
Owings Mills and then for the express purpose of
training new employees and to have experienced
personnel at the new plant. In fact, Respondent's
attorney, Shawe, testified at the hearing that the
Owings Mills plant was intended to supplement
Respondent's other plants rather than to serve as
the relocation of the Hollins Ferry Road plant. It
was not until several months later that Respondent,
owing to adverse economic conditions, made the
decision to close the Hollins Ferry Road facility
and transfer its operations and employees to
Owings Mills. There is nothing in the record,
therefore, which shows that this is the type of situ-
ation that Respondent and the Union contemplated
as being covered by the "relocation" language in
the contract.
Our standard in finding a waiver of the employ-
ees' statutory rights is a strict one. The word "relo-
cate," which does not definitively cover the situa-
tion herein, without more, is not enough to consti-
tute a clear and unequivocal waiver by the Union
of its right to bargain with Respondent about the
closing of the plant and the transfer of its oper-
ations and employees. 6 Accordingly, we find that
that section in the parties' contract entitled "Man-
agement Rights" cannot be construed as a waiver
of the Union's right to bargain about these matters.
2. The Administrative Law Judge found that 29
employees at the Hollins Ferry Road facility who
rejected Respondent's offer in February 1978 to
transfer to the Owings Mills facility were terminat-
ed in violation of Section 8(a)(3) and (1) of the
Act. We find merit to Respondent's exception to
this finding.
The facts with regard to this issue are as follows:
After opening the Owings Mills facility, Re-
spondent offered transfers to Owings Mills to sev-
eral Hollins Ferry Road employees in October
1977 and February 1978. However, those employ-
a Allied Mills Inc., 218 NLRB 281, 286 (1975).
6 See The Dow Chemical Company, 212 NLRB 333. 339 (1974); R. L.
Sweet Lumber Company. 207 NLRB 529, 538 (1973).
ees were told that seniority for layoff purposes
would be based on their length of employment at
the Owings Mills plant. In addition, when offering
a transfer to employee Teresa Egitto, Respondent's
human relations director, O'Neill, told her that
there would be no union at Owings Mills, warned
her that if the employees at that facility attempted
to organize Respondent would retaliate, and cau-
tioned her that the conversation was confidential.
Finally, at an orientation session of Hollins Ferry
Road transferees held on February 8, 1978, in the
Owings Mills plant, O'Neill made the statement
that the employees at Hollins Ferry Road were
treated badly because of the Union's presence
there.
The Administrative Law Judge, in addition to
finding that the latter two incidents violated Sec-
tion 8(a)(1) of the Act, a finding which we adopt,
found that all these incidents indicated Respond-
ent's union animus, that Respondent seized upon
the establishment of its new plant at Owings Mills
to rid itself of the Union, and that Respondent in-
sured that the new facility would not be unionized
by offering Hollins Ferry Road employees transfers
to Owings Mills under discriminatory conditions.
Having so found, the Administrative Law Judge
concluded "that the employees who rejected
O'Neill's offer [to transfer] were in effect discharged
because of their adherence or probable adherence
to the Union." We disagree.
There is no evidence that Respondent terminated
these employees for reasons other than their refusal
to accept a transfer to Owings Mills. In addition,
there is no evidence that their refusal, as is inferred
by the Administrative Law Judge and the General
Counsel, was based on any discriminatory condi-
tion attached to the transfer or on Respondent's re-
fusal to recognize the Union at Owings Mills.
There was no testimony that any of the 29 employ-
ees who refused to transfer did so because of se-
niority considerations. Furthermore, the record is
devoid of any showing that the absence of a union
at Owings Mills or any other allegedly adverse
condition of employment at that plant played a role
in any employee's decision to refuse a position at
Owings Mills. In fact, not a single employee who
declined the offer of a job at Owings Mills testified
at the hearing as to the reasons for his or her deci-
sion. Thus, the record contains no evidence of
these employees' motives in refusing Respondent's
offer to transfer. In these circumstances, and con-
trary to the Administrative Law Judge, we find
that the General Counsel has not established by a
preponderance of the evidence that the termination
6h62
UNIVERSAIl SECURITY INSTRUMENTS, INC.
of these employees violated Section 8(a)(3) of the
Act. 7
REMEDY
We adopt the remedy recommended by the Ad-
ministrative Law Judge for Respondent's violations
of Section 8(a)(5) of the Act found above. Thus,
Respondent shall, inter alia, be required to apply
the terms of the collective-bargaining agreement
between the Union and Respondent to the Owings
Mills employees retroactively and make the em-
ployees whole for any losses they may have suf-
fered as a result of Respondent's unlawful refusal
to extend the terms of the agreement to them. Fur-
ther, as a result of Respondent's refusal to discuss
with its employees' collective-bargaining repre-
sentative its decision to close the facility where
they were employed and the effects of that deci-
sion, including the terms of transfer and the like, at
least 29 employees lost their jobs and all of the
former Hollins Ferry Road employees were denied
the service of their collective-bargaining repre-
sentative at the time when that representative may
have been able-had it been afforded the opportu-
nity-to negotiate an agreement with Respondent
which could have avoided the shutdown of the
Hollins Ferry Road plant or, at the least, would
have ameliorated the consequences of the closing
vis-a-vis the employees who worked there. In our
view, the remedies recommended by the Adminis-
trative Law Judge are not sufficient to make the
former Hollins Ferry Road employees whole for
the losses they have suffered as a result of Re-
spondent's unlawful refusal to bargain. According-
ly, we shall accompany our order to bargain with a
limited backpay requirement designed both to make
whole the employees for losses suffered as the
7 The Administrative Law Judge, having found the 8(aX3) violation,
found it unnecessary to determine whether or not Respondent further
violated Sec 8(a)(5) of the Act by the termination of these 29 employees
No exception was taken to his failure to find the latter violation concern-
ing the issue but counsel for the General Counsel in his brief to us urges
that such a finding be made. We find no need to pass on this issue, inas-
much as the terminations obviously were an effect of Respondent's deci-
sion to close the Hollins Ferry Road plant, and we have found that Re-
spondent violated Sec 8(a)(5) by refusing to bargain about that decision.
its effects, and the transfer of the employees; furthermore, we are order-
ing, inter alia, Respondent to bargain about such matters, and, as part of
the remedy for these violations (see infra), requiring Respondent to make
the employees whole until certain conditions are met.
In the last paragraph of the section of his Decision entitled "Analysis
and Conclusions," the Administrative Law Judge found that the transfer
offers to Hollins Ferry Road employees in October 1977 and February
1978 were offers of "opportunities to work at Owings Mills under dis-
criminatory conditions" because the employees were told that their se-
niority for layoff purposes would date from the commencement of their
employment at Owings Mills. The Administrative Law Judge further
found in his Conclusions of Law, that Respondent violated Sec. R(a)(3)
"by discriminating against its Hollins Ferry Road employees with respect
to conditions of employment " Inasmuch as there is no evidence connect-
ing the offers of lesser seniority with the employees' union aclivity we
do not adopt this finding
result of the violation and to recreate in some prac-
tical manner a situation in which the parties' bar-
gaining position is not entirely devoid of economic
consequences for Respondent. For this reason Re-
spondent shall be ordered to pay backpay to the
employees employed at the Hollins Ferry Road
plant as of February 3, 1978, the date Respondent
offered the Hollins Ferry Road employees transfers
to Owings Mills, in a manner similar to that re-
quired in P. B. Mutri Motor Transportation. 8 Thus,
backpay shall be computed at the rate of the em-
ployees' normal wages when last in Respondent's
employ from February 28, 1978, the date on which
Respondent closed its Hollins Ferry Road facility,
until the occurrence of the earliest of the following
conditions: (1) the date Respondent bargains to
agreement with the Union on those subjects per-
taining to the effects of the closing on employees at
its Hollins Ferry Road facility; (2) a bona fide im-
passe 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 Re-
spondent's notice of its desire to bargain with the
Union; or (4) the subsequent failure of the Union to
bargain in good faith. Backpay shall be based on
earnings which the terminated employees would
normally have received during the applicable
period, less any net interim earnings, and shall be
computed on a quarterly basis in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289
(1950), together with interest as provided in Florida
Steel Corporation, 231 NLRB 651 (1977). See, gen-
erally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts the recommended order of the
Administrative Law Judge, as modified below, and
hereby orders that the Respondent, Universal Secu-
rity Instruments, Inc., Owings Mills, Maryland, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph l(b):
"(b) Refusing to recognize and bargain in good
faith with Industrial Union of Marine & Shipbuild-
N 226 NLRB 1325 (1976) We recognize that under our Order herein
those former Hollins Ferry Road employees who were subsequently em-
ployed by Respondent at its other plants are entitled both to the wages,
benefits, and other terms and conditions of employment established by
the collectise-bargaining agreement and hackpay as provided herein To
the extent that these tiso remedies may overlap, the amount of backpay
to which individual employees are entitled shall be reduced by the
amounts they hase earned in Respondent's employ since the closing of
the HollHns Ferry Road facility
663
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing Workers of America, AFL-CIO, as the exclu-
sive collective-bargaining representative of its em-
ployees at its Owings Mills, Maryland, plant of the
following appropriate unit:
All production and maintenance employees
employed by Universal Security Instruments,
Inc., at its Baltimore, Maryland facilities at
2829 Potee Street, 3341 Hollins Ferry Road,
and at its Owings Mills, Maryland plant, in-
cluding custodial and plant clerical employees,
but excluding all office clerical employees,
professional employees, watchmen, guards and
supervisors as defined in the Act."
2. Delete paragraph l(d) and reletter subsequent
paragraphs accordingly.
3. Substitute the following for paragraph 2(f):
"(f) Pay the unit employees employed at Re-
spondent's Hollins Ferry Road plant as of Febru-
ary 3, 1978, with interest, their normal wages, in
the manner and for the period set forth in the sec-
tion of this Decision entitled 'Remedy."'
4. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to bargain in good
faith with Industrial Union of Marine & Ship-
building Workers of America, AFL-CIO, con-
cerning our decision and the effects of our de-
cision to terminate our Hollins Ferry Road
plant and transfer unit work and employees to
our Owings Mills, Maryland, plant and other
terms and conditions of employment.
WE WILL NOT refuse to recognize or bar-
gain in good faith with Industrial Union of
Marine & Shipbuilding Workers of America,
AFL-CIO, as the exclusive bargaining repre-
sentative of our employees in the appropriate
unit which is:
All production and maintenance employees
employed by the Employer at its Baltimore,
Maryland facilities at 2829 Potee Street,
3341 Hollins Ferry Road, and at its Owings
Mills, Maryland plant, including custodial
and plant clerical employees, but excluding
all office clerical employees, professional
employees, watchmen, guards and supervi-
sors as defined in the Act.
WE WILL NOT deal with our employees, in-
dividually, who are represented by an exclu-
sive collective-bargaining representative re-
garding wages, hours, seniority, or other terms
and conditions of employment.
WE WILL NOT threaten our employees with
economic reprisals because they support and
adhere to Industrial Union of Marine & Ship-
building Workers of America, AFL-CIO, as
their exclusive collective-bargaining repre-
sentative or any other labor organization.
WE WILL NOT restrain, coerce, or interfere
with our employees' rights under Section 7 of
the National Labor Relations Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees within the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act.
WE WILL recognize and upon request bar-
gain with Industrial Union of Marine & Ship-
building Workers of America, AFL-CIO, as
the exclusive collective-bargaining representa-
tive of our employees in the appropriate unit
described above.
WE WILL apply the terms of the collective-
bargaining agreement to our employees in the
appropriate unit working at our Owings Mills,
Maryland, plant.
WE WILL make whole those employees at
the Owings Mills plant for any loss of benefits
they may have suffered by our failure to apply
the terms of the collective-bargaining agree-
ment to them.
WE WILL make whole the above-named
Union for any moneys that would have been
due it under the terms of any checkoff authori-
zation executed by employees which were not
deducted and transmitted to the Union as a
result of our failure to apply the terms of the
collective-bargaining agreement for these em-
ployees.
WE WILL, upon request, bargain with Indus-
trial Union of Marine & Shipbuilding Workers
of America, AFL-CIO, concerning our unilat-
eral transfer of our employees from our Hol-
lins Ferry Road plant to our Owings Mills
plant, our decision to terminate our Hollins
Ferry Road plant, the effects of that decision
upon employees formerly employed at the
plant represented by the above-named Union,
including employees' seniority rights, and the
664
UNIVERSAL SECURITY INSTRUMENTS, INC.
transfer of the Hollins Ferry Road plant's pro-
duction to our Owings Mills plant, and reduce
to writing any agreement reached as a result
of such bargaining.
WE WILL, upon request, bargain with the
aforesaid Union concerning the seniority of all
employees transferred from the Hollins Ferry
Road plant to the Owings Mills plant com-
mencing on September 12, 1977, and after such
bargaining adjust such employees' seniority in
accordance with the agreement reached with
the aforesaid Union.
WE WILL pay our employees who were em-
ployed at the Hollins Ferry Road plant as of
February 3, 1978, with interest, their normal
wages in the manner and for the period re-
quired by a Decision of the National Labor
Relations Board.
UNIVERSAL SECURITY INSTRUMENTS,
INC.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge:
Upon a charge filed by the Union, Industrial Union of
Marine & Shipbuilding Workers of America, AFL-CIO,
the General Counsel of the National Labor Relations
Board, by the Regional Director of the Board's Region
5, issued the complaint herein on January 6, 1978, against
Respondent, Universal Security Instruments, Inc., alleg-
ing that Respondent had engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1)(3) and (5) of
the National Labor Relations Act as amended (29
U.S.C..A §151., et sed.), herein called the Act, Respond-
ent answered, denying commission of the alleged unlaw-
ful conduct.
Pursuant to notice, a hearing was held before me at
Baltimore, Maryland, on April 10, 11, 12, 27, and 28,
1978. The General Counsel, the Respondent, and the
Charging Party submitted post-trial briefs. Upon the
entire record in this case, consideration of the briefs, and
my observation of the demeanor of the witnesses, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, Universal Security Instruments, Inc., a
Maryland corporation, manufactures burglar alarms,
smoke detectors, and other electronic security devices at
its Baltimore and Owing Mills, Maryland, locations. In
connection with its production operations, Respondent
annually purchases and receives materials and supplies
valued in excess of $50,000 which originate from points
outside the State of Maryland. Respondent admits, and I
find from the foregoing commerce data, that Respondent
is an employer engaged in commerce and operations af-
fecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOL VEI)
Respondent concedes, and I find, that Industrial Union
of Marine & Shipbuilding Workers of America, AFL-
CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
At all times material, the Union was the recognized
exclusive collective-bargaining agent for a unit of pro-
duction and maintenance employees at Respondent's two
Baltimore plants located at Potee Street and at Hollins
Ferry Road, respectively. The Hollins Ferry Road facili-
ty was located approximately 2.7 miles from the Potee
Street plant.
In September 1977, Respondent began manufacturing
operations at a new plant, situated at Owings Mills,
Maryland, approximately 27 miles northwest of the
Potee Street and Hollins Ferry Road plants. In February
1978, Respondent closed its Hollins Ferry Road plant
permanently. Though requested to do so by the Union,
Respondent has refused to bargain with, or recognize,
the Union as the exclusive bargaining representative for
the Owings Mills production and maintenance employ-
ees. Further, in October 1977 and again in February 1978
Respondent directly recruited Hollins Ferry plant em-
ployees for the Owings Mills plant, without consultation
with the Union. Finally, those employees who declined
reassignment to Owings Mills in February were placed
on a preferential hiring list for the Potee Street facility.
The pleadings present the following issues concerning
Respondent's conduct toward the Union and the Hollins
Ferry plant employees: (1) whether Respondent violated
Section 8(a)(3) and (1) of the Act by terminating 29 of its
Hollins Ferry plant employees because they supported
the Union; (2) whether Respondent violated Section
8(a)(5) and (1) of the Act by attempting to undermine
the Union's status as collective-bargaining representative
by: (a) unilaterally transferring unit work from the Hol-
lins Ferry plant to the Owings Mills plant; (b) failing to
recognize and bargain with the Union as the exclusive
bargaining representative for the Owings Mills produc-
tion and maintenance employees; (c) failing to bargain
with the Union regarding the transfer of unit work or
about the effects of the transfer of unit work to Owings
Mills; and by, (d) terminating 29 of its Hollins Ferry
plant employees because they supported the Union.
B. The Facts
Except as noted, the facts in this case were not disput-
ed. In January 1973, the Union began organizing Re-
spondent's employees at its then only plant, which it
leased, at Potee Street in Baltimore, Maryland. Follow-
ing a Board-held election, the Union received a Board
certification as the exclusive collective-bargaining repre-
sentative of a unit of Respondent's employees described
as follows:
665
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees em-
ployed by the [Respondent] at its Baltimore, Mary-
land facility, including custodial and plant clerical
employees, but excluding office clerical employees,
guards and supervisors as defined in the Act.
Following the certification, the Union and Respondent
negotiated and executed a collective-bargaining agree-
ment, which was effective for a 3-year term beginning
August 1, 1973. The contract's recognition clause limited
its application to Respondent's Potee Street plant.
Respondent's production consisted of electro mechani-
cal and electronic products. Prior to 1973, Respondent
produced mostly electromechanical sirens, bells, and
alarms which were based on a conventional mechanical
motor. In 1973, Respondent expanded its electronic pro-
duction to include smoke detectors and electronic sirens.
In July 1975, Respondent leased a warehouse facility
which became known as the Hollins Ferry Road plant.
Respondent converted the warehouse facility to accom-
modate production of electronic items, with emphasis on
smoke detectors.
Respondent began production at Hollins Ferry Road
in the autumn of 1975 with Potee Street employees.
Potee Street employees assigned to the new plant report-
ed daily to their Potee Street time clock and were then
transported to the Hollins Ferry Road plant. At the end
of the day, Respondent returned those employees to the
Potee Street plant where they clocked out for the day.
After I month's operation, Respondent transferred ap-
proximately 15 Potee Street employees to Hollins Ferry
Road on a permanent basis. Respondent continued to
apply the collective-bargaining agreement's union dues-
checkoff provision to the former Potee Street employees.
Respondent filled out its Hollins Ferry Road plant com-
plement with newly hired employees.
In September 1975, Respondent raised the question of
a new collective-bargaining agreement for both of its
plants. Following negotiations in January and March
1976, the parties, on May 17, 1976, executed a memoran-
dum agreement. This agreement modified the original
collective-bargaining agreement and extended recogni-
tion of the Union to the Hollins Ferry Road production
and maintenance employees. Respondent extended recog-
niton without requiring any proof that a majority of the
Hollins Ferry Road employees supported the Union. The
parties also extended the contract's term to August 1,
1979.
Thereafter, the Respondent and the Union entered into
a complete collective-bargaining agreement, also effec-
tive from May 17, 1976, until August 1, 1979. By article
I, section 1, of that contract, Respondent again agreed to
recognize the Union as:
"... exclusive bargaining agent for all production
and maintenance employees employed by the [Re-
spondent] at its Baltimore, Maryland facilities, at
2829 Potee Street, and 3341 Hollins Ferry Road, in-
cluding custodial and plant clerical employees but
excluding all office clerical employees, professional
employees, watchmen, guards and supervisors as
defined in the National Labor Relations Act." This
last agreement was in effect at all times material to
the alleged unlawful conduct.
During the latter half of 1976, the original 40 employ-
ee complement at Hollins Ferry Road steadily increased
along with production of smoke detectors. In the autumn
of 1976, the Hollins Ferry Road plant employed from 75
to 100 employees. Later, near the end of 1976, when Re-
spondent began its second shift, there were 100 to 125
employees at the Hollins Ferry Road plant. By spring
and summer of 1977, that number had increased to 300 of
which 90 percent engaged in producing smoke detectors.
Potee Street employed between 50 and 60 plant employ-
ees during 1976 and 1977.
Along with the growing employment level, Respond-
ent became increasingly displeased with the Hollins
Ferry Road facility. The ceilings were too high. Tem-
perature and humidity could not be adequately con-
trolled and the employees were overcrowded. The Hol-
lins Ferry Road facility was too hot in the summer and
too cold in the winter. There was inadequate space for
Respondent's production operations. State and local au-
thorities complained to Respondent about fire hazards
and inadequate sanitation.
These conditions impaired plant operations. The over-
crowded conditions in the plant production area caused
Respondent to move its research and quality control ac-
tivities to a trailer. Further, these shortcomings caused
poor productivity and poor product quality at the Hol-
lins Ferry Road plant.
A few months after leasing the Hollins Ferry Road
plant, Respondent began looking for a new permanent
plantsite. Respondent was motivated by a desire to
obtain "long term stability" in the growing business at-
tributable to its smoke detector product.
Respondent considered a site at Cockeysville, Mary-
land, a Baltimore suburb. Respondent rejected that loca-
tion because it was not served by public transportation to
and from Baltimore City. Respondent viewed such trans-
portation as necessary to attract a labor force. Respond-
ent noted that a public bus originating in the City of Bal-
timore and running past Respondent's Potee Street plant
terminated within walking distance of the Owings Mills
plant.
By August 1976, Respondent had located a suitable fa-
cility at Owings Mills, Maryland, situated approximately
27 miles northwest of the Potee Street and Hollins Ferry
Road plants. Respondent executed a lease-purchase
agreement for the Owings Mills site on August 10, 1976.
In a press release dated March 18, 1977, Respondent
announced: "[T]hat its acquisition of a 36,000 sq. ft. fa-
cility in Baltimore County, Maryland is expected to be
completed shortly. The new facility will be used initially
to manufacture and warehouse smoke detectors." the Re-
spondent purchased the Owings Mills plant 10 days after
the press release.
Chairman Stephen Knepper of Respondent's board of
directors testified that:
Owings Mills was a permanent home for the Com-
pany. It was going to produce smoke detectors, as
well as other products. The difference in cost be-
666
UNIVERSAL SECURITY INSTRUMENTS, INC.
tween that and Hollins Ferry didn't mean much to
me. I mean, I knew that it was less. But that didn't
mean much to me, because combined productions,
[sic] from both facilities was what we were interest-
ed in.
Respondent's new acquisition received additional pub-
licity in a local publication. On May 19, 1977, Balti-
more's North West Star reported that the Baltimore
County Council had "approved a loan for Universal Se-
curity Instruments, Inc., to purchase and equip a factory
on South Dolfield Road in Owings Mills."
Late in July 1977, Dow Jones' weekly financial news-
paper, Barron's, carried an article regarding Respondent's
business activities, including the report that Respondent
had "announced that it has completed the acquisition of
its new facility in Owings Mills, Maryland." The article
also declared: "Production at the new facility is expected
to start September 1977."
Respondent's annual report to its stockholders, issued
in August 1977, contained a photograph captioned "The
Company's new facility, Owings Mills, Maryland. The
report also declared:
On May 31, 1977, USI acquired a new facility in
Baltimore County, Maryland. The facility's approxi-
mately 43,000 square feet, on 4.45 acres of land, will
help meet the Company's need for space, particular-
ly for the manufacture, assembling and warehousing
of smoke detectors. This building represents the
largest single physical expansion in the Company's
history.
Respondent did not notify the Union regarding the
Owings Mills plant. However, the Union became aware
of the Owings Mills plant in July 1977. Employee Alice
Smith, who was a union shop steward at the Hollins
Ferry plant, while visiting Respondent's Potee Street
corporate headquarters asked Chairman Knepper: "Are
we going to Owings Mills?" Knepper asked her to repeat
her question. She responded: "Is the Union going to
Owings Mills?" Knepper did not provide the requested
information. He directed Smith to Respondent's director
of human relations, Robert O'Neill.
Smith soon found O'Neill in his Potee Street office
and asked: "When are we going to Owings Mills?"
O'Neill replied, "I don't know."
In late July or early August, employee Veronica At-
kinson, a shop steward at the Potee Street plant, gave
the Union's regional director, Earl W. Barnes one of the
cardboard containers used to package Respondent's
smoke detectors. The container gave Respondent's ad-
dress as, "10324 South Dolfield Road Owings Mills,
Maryland 21117 U.S.A."
Barnes went to the address given on the carton and
saw Respondent's new plant. Thereafter, Barnes, accom-
panied by his staff representative, Tom D'Amico, made
three more exploratory visits to the Owings Mills site.
The Owings Mills plant commenced operations on
September 12, 1977. Thus, in September 1977 Respond-
ent was producing smoke detectors both at the Hollins
Ferry Road plant, where it had extended its lease for 6
months beginning September 1, 1977, and at Owings
Mills. I find from Chairman Knepper's testimony that
when Respondent began operations at Owings Mills, its
intention was to use the new plant to expand its produc-
tion of smoke detectors.
In August and September 1977, Respondent placed
help-wanted advertisements in two suburban Baltimore
newspapers and in the Baltimore-Sun. The advertisements,
composed and placed by Respondent's human relations
director, O'Neill, stated that an unnamed manufacturer
wanted help at an Owings Mills plant at "10324 South
Dolfield Road." They described the work as "factory
work" and declared:
Prior experience preferred but not necessary. Indi-
vidual must possess a high degree of manual dexter-
ity.
By the end of September 1977, Owings Mills em-
ployed 65 factory employees and 8 supervisory and man-
agerial employees. Of the supervisory and management
group I or 2 had been supervisors at Hollins Ferry
Road. Respondent had recruited the remaining supervi-
sory and managerial personnel in August 1977, and had
trained them at Hollins Ferry Road.
On or about September 12, the Union's regional direc-
tor, Earl W. Barnes, in the company of his staff repre-
sentative, Tom D'Amico, visited the Owings Mills plant,
where they encountered Respondent's director of oper-
ations, Amedee Dean. I Barnes asked Dean whether Re-
spondent would recognize the Union as exclusive bar-
gaining representative for the Owings Mills plant. Dean
asked the two union representatives to leave the prem-
ises. Again, Barnes asked if Respondent would recognize
the Union at Owings Mills. Dean replied, "I can't answer
that. You'll have to talk to Bob O'Neill," Dean then told
the two union officials to leave. Barnes and D'Amico
subsequently returned to the Owings Mills plant where
they distributed handbills and information regarding the
Union to the employees.
Soon after his encounter with Amedee Dean, Barnes
asked Human Relations Director O'Neill if Respondent
would recognize the Union at the Owings Mills plant.
O'Neill advised Barnes to take the matter up with Re-
spondent's labor counsel, Stephen Shawe.
In conversation with Barnes on September 28, 1977,
Attorney Stephen Shawe, on Respondent's behalf. re-
fused to recognize and bargain with the Union for the
Owings Mills plant employees. 2 Barnes stated that,
absent recognition, the Union intended to organize the
Owings Mills facility. Barnes also pointed out that a con-
siderable number of Respondent's employees were inter-
ested in being represented by the International Brother-
hood of Electrical Workers and that "the Company
At the time of the hearing Dean was vice president in charge of man-
ufacturing.
2 Barnes testified that this conversation occurred on October 28. 1977
However, he seemed uncertain about that date and the date, about whicnh
he testified. Attorney Shawe's testimony found support in hi, regularl)
kept daily telephone log for October 28, 1977 Further. unlike Barnes
who provided scant details. Shawe appeared lo be gliing his full recol-
lection of the conversation. which he prosided in a. forthright manner
Accordingly. I have based my findings regarding this c:on.erailon upon
Shae's testimony
6h7
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be better off without" that union at Owings Mills.
Barnes asked about Respondent's intentions regarding its
Hollins Ferry Road plant. In response, Shawe "explained
that it was [Respondent's] intention to operate the Hol-
lins Ferry facility, and that the Owings Mills facility was
a supplement to the Company's other production facili-
ties."
The Union made one further attempt to obtain recog-
nition at the Owings Mills plant. By letter dated Decem-
ber 21, 1977, the Union's attorney, Michael Brodie, re-
quested that Respondent recognize and bargain with the
Union as the exclusive representative of the Owings
Mills production and maintenance employees. By letter
dated January 3, 1978, Respondent's counsel rejected
that request.
In early October 1977, Chairman Knepper recognized
the need for a cadre of trained employees at Owings
Mills. He immediately authorized O'Neill to recruit a
number of employees at Hollins Ferry Road for perma-
nent transfer to Owings Mills. Respondent did not notify
the Union of its plans to transfer Hollins Ferry employ-
ees to Owings Mills. O'Neill did not recruit on the basis
of seniority. Using recommendations from production
management, O'Neill selectively interviewed four em-
ployees for voluntary transfers to Owings Mills. Of that
number, three agreed to transfer. Later in the month,
O'Neill spoke individually to additional employees to
whom he offered involuntary transfers; 12 agreed to
transfer. Again, seniority was not a factor. Those who
declined transfer were laid off due to adverse business
conditions. By the end of October, Owings Mills had 80
production and maintenance employees. At the same
time, Hollins Ferry Road employed approximately 200
plant production and maintenance employees. Potee
Street employed approximately 50.
Among those offered involuntary transfer was Teresa
Egitto. On October 26, O'Neill informed Egitto that she
had been laid off, but could be rehired at the Owings
Mills plant. Egitto replied that she had to think about the
offer because she had "a transportation problem."
O'Neill assured her that she would be performing the
same type of work that she was presently doing at Hol-
lins Ferry Road. O'Neill advised her that there was no
union at Owings Mills and that the employment benefits
there were better. O'Neill warned that if the Owings
Mills employees attempted to obtain union representa-
tion, Respondent would retaliate by treating the employ-
ees just as poorly as they had been treated at the Hollins
Ferry Road plant. 3 It is undisputed that he cautioned
a Whenever there was a conflict in their testimony, my finding regard-
ing Egitto's interview with O'Neill and his remarks to her following her
transfer were based upon her testimony. Egitto delivered her testimony
in a full and forthright manner. In assessing Egitto's testimony I have
also taken into account her dispute with Respondent following her trans-
fer to Owings Mills regarding a wage increase However, notwithstand-
ing that fact, I did not detect in her testimony any attempt to embellish
or exaggerate her account of O'Neill's remarks and her treatment at Re-
spondent's hands My doubts about O'Neill's reliability arose first from
the conflict between his testimony that Egitto's October 28 transfer was
voluntary and his later testimony that the voluntary transfers were limit-
ed to early October and that at least some transfers in late October were
involuntary due to business conditions. In light of the timing of Egitto's
transfer so close to a mass layoff on October 31, it seemed likely that her
transfer would have been involuntary Further in contrast to Egitto,
Egitto that their conversation was confidential. I find
from Respondent's records and Egitto's testimony that
she accepted the offer of reemployment, and reported to
Owings Mills on October 28.
Immediately, Respondent assigned Egitto to working
on smoke detectors, checking the radium sources which
activate the instruments. Respondent produced similar
smoke detectors at the Hollins Ferry Road plant.
On the afternoon of the same day, O'Neill met with
Egitto and two other employees at the Owings Mills
plant cafeteria. O'Neill asked the employees for their im-
pression of the new plant and told them of the employ-
ment benefits available to them. O'Neill advised the three
.employees that with respect to vacations and other bene-
fits, they had retained company seniority superior to that
of the new employees at Owings Mills. 4 However, for
purposes of layoff, the plant seniority of the Owings
Mills employees hired before Egitto and the two em-
ployees would take precedence. O'Neill added that Re-
spondent did not need a union at Owings Mills, could
offer the employees more benefits without the Union,
and did not need a third party to engage in bargaining.
On October 31, 1977, problems with the radium
sources used in its smoke detectors, reduced demand for
smoke detectors, and a longshoremen's strike caused Re-
spondent to lay off all of its Owings Mills production
and maintenance employees, and all but 50 of its Hollins
Ferry plant employees. At the time of the layoff, Hollins
Ferry had about 200 employees, Owings Mills had about
80, and Potee Street had 50. The layoff included all of
the Owings Mills employees and 150 of the Hollins
Ferry employees. Respondent terminated the layoff in
January 1978 when it recalled all of the laid-off employ-
ees.
However, reduced demand pressured Respondent into
sharply reducing the price of its smoke detectors to dis-
tributors. This development combined with the ineffi-
ciency of the Hollins Ferry plant rendered smoke detec-
tor production unprofitable at that facility.
Toward the end of January 1978, Director of Oper-
ations Amedee Dean and Chairman Stephen Knepper
discussed, the Hollins Ferry Road plant's viability. On or
about February 1, 1978, Dean recommended the termina-
tion of production at Hollins Ferry Road. On February
2, Chairman Knepper decided to terminate the Hollins
O'Neill did not provide a full account of the interview and his remarks
on October 28 at Owings Mills. Instead, he generally provided exculpa-
tory negative responses to carefully fashioned leading questions posed by
counsel for Respondent or could not remember.
4 Respondent's contract with the Union, in effect at all times material
to this case, contained the following pertinent provisions regarding se-
niority and layoffs:
ARTICLE XI
SENIORITY AND LAYOFF
PROCEDURES
Section 1. Seniority under this Agreement shall be plant-wide, that
is hased upon length of service with the Company, with exception
outlined hereinafter in this Article
668
UNIVERSAL SECURITY INSTRUMENTS, INC.
Ferry Road plant operations by the month's end. The
next day, Knepper notified Director of Human Relations
O'Neill of the decision and authorized him to offer Hol-
lins Ferry employees the option of transfer to the
Owings Mills plant. That same day, Respondent's coun-
sel by letter advised the Union that:
Because of pressing economic circumstances, it will
probably be necessary for the Company to close its
Hollins Ferry Road, Baltimore, plant within the
next few weeks. That plant is very inefficient and
the Company's costs are unduly high. Since your
Union represents the production and maintenance
employees at this plant, the Company is hereby of-
fering to meet with you, at a mutually convenient
time and place, to discuss all aspects of this matter,
including, but not limited to, the impact that such a
closing would have upon the employees at that
plant. It is our intention to offer employment to as
many of the Hollins Ferry Road plant employees as
possible at our new facility in Owings Mills, Mary-
land.
I look forward to hearing from you at your earliest
convenience to arrange such a meeting.
On February 3, Human Relations Director O'Neill
began offering transfers to the 90 to 100 Hollins Ferry
plant employees. O'Neill spoke to the most senior em-
ployees first, using a plant seniority list. If an employee
refused reassignment, O'Neill reminded the employee
that Respondent intended to close the Hollins Ferry
plant "within a few weeks." He also warned that he
could not assure them employment at Potee Street.
Thirty-one employees refused reassignment. Seventy-
two accepted reassignment to Owings Mills. Following
an interview with O'Neill, each employee was asked to
sign a form reciting that he or she had received an offer
of transfer to Respondent's Owings Mills plant. Below
that sentence, the employee had the option of checking
either "I accept reassignment" or "I decline
reassignment".Respondent transferred all those who
wished transfers to the Owings Mills plant. None of the
transferees suffered a loss of pay. Some received wage
increases. Except for two employees, who accepted
offers of transfer to Potee Street, Respondent placed the
remaining 29 employees, who had declined transfer to
Owings Mills, on a preferential hiring list for Potee
Street.
On the morning of February 8, approximately 10 Hol-
lins Ferry Road transferees assembled in the Owings
Mills plant's cafeteria where Human Relations Director
O'Neill presented each with a company handbook and
then provided time for reading the booklet. After the
employees had completed their review of the handbook,
O'Neill joined them for a general discussion.
O'Neill advised the employees of their new health
benefits and wage improvements, none of which were
under the Union's contract. Under the Owings Mills
health benefit arrangement, an employee would enjoy
benefits after 6 months' employment. The Hollins Ferry
Road collective-bargaining agreement required 1 year's
employment. O'Neill also compared wages at the two
plants. He pointed out that the hiring-in wage at both
plants was the same. However, Owings Mills employees
received their first wage increase after a 60-day proba-
tionary period. Under the union contract covering Hol-
lins Ferry Road, an employee received the first wage in-
crease after 6 months. Respondent granted most transfer-
ees a wage increase immediately.
The employees asked about seniority, O'Neill assured
them that, for purposes of vacation and other fringe
benefits, the Hollins Ferry employees would retain their
company seniority. However, in determining the order of
layoffs, Respondent would consider plant seniority.
Thus, for purposes of layoff, the date of hiring at the
Owings Mills plant would be determinative.
The employees also inquired about working conditions
at the Owings Mills plant. O'Neill assured them that the
conditions were better. He also pointed out that the Re-
spondent treated employees like animals at the Hollins
Ferry Road plant, but would no longer do so at Owings
Mills. Employee Martha J. Smith asked why Respondent
treated them "like animals" at Hollins Ferry Road.
O'Neill explained that it was because they had a union. '
O'Neill pointed out that if employees had any grievance
that they should go to their immediate supervisor with
the problem. If they were not satisfied with the initial re-
sponse, they would then take the matter up with the
plant manager. The third step of their grievance proce-
dure would be with O'Neill, himself. O'Neill also stated
"that there was no longer a third party in between
myself and them, that they were now independent con-
tractors, and that they dealt directly with the company
on their own behalf." O'Neill gave the same orientation
I O'Neill denied telling the employees that for layoff purposes their se-
niority was less than that of earlier hired Owings Mills employees. He
also denied making any reference to the Union in his remarks about the
treatment accorded employees at the Hollins Ferry Road plant. O'Neill
conceded that he told the employees on February 8 "that at Hollins
Ferry they were herded around like animals " O'Neill also testified that
he remembered that someone asked him if Owings Mills was a union
plant. He testified that his answer was "no, it's not a union plant." He
also admitted that there was a discussion about seniority and that he
merely explained the difference between plant seniority and company se-
niority, when asked He denied telling the employees that they would not
be treated like animals at Owings Mills because there was no union there
However, my earlier stated doubt as to his reliability increased due to
his gratuitous attempts to protect the Respondent. At the hearing O'Neill
attempted to downgrade the employees' testimony by volunteering that
they took his remarks out of context I also noted that when questioned
as to why, after the instant hearing had begun. he had interrogated em-
ployee participants in the February 8 meeting regarding his remarks. he
came up with the expedient response that he was part of the Respond-
ent's "defense teanis." In contrast. I was impressed that employee Martha
J Smith was a forthright witness, who appeared unconcerned about the
outcome of this case. I have considered Martha I Smith's recent disputes
with Respondent involving her reinstatement following arbitration pro-
ceedings and the backpay resulting from the arbitrator's award I also
noted, however, that, at the time she testified, Smith was an employee at
Owings Mills plant Thus, she was not likely to fabricate her testimony if
she wished to remain employed at Owings Mills Furthermore. O'Neill
and other employees who were present at the meeting confirmed substan-
tial portions of her testimony In an attempt to bolster O'Neill's testimo-
ny. Respondent introduced the testimony of other employees who a'ere
present at the meeting. However, none of these employee sitnesse, ap-
peared to hare much recollection of what O'Neill said and In one io-
stance contradicted his admission that he said Owings Mills was a non-
union plant I have therefore credited Martha J Smith's sersiotn of
O'Neill's remarks of February 8. 1978
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
to 10 or 15 groups of transferees through February and
during March.
On February 14, Union Regional Director Barnes at-
tended a meeting with Respondent's attorneys Stephen
Shawe, and Warren Davison and Human Relations Di-
rector O'Neill. Shawe announced that Respondent was
closing the l(ollins Ferry Road facility. Shawe added
that the Hollins Ferry Road activities would be moved
to Owings Mills and that Respondent was offering trans-
fers to that facility to all of the Hollins Ferry Road em-
ployees. Shawe stated that the new Owings Mills facility
would accommodate all of the electronics division pro-
duction. Potee Street would continue as it had been.
Respondent closed the Hollins Ferry Road plant on
February 28, 1978. To date, Respondent has not recog-
nized the Union as exclusive bargaining representative of
the Owings Mills production and maintenance employ-
ees. Aside from discussions involving five Hollins Ferry
Road plant employees, Respondent did not deal further
with the Union regarding the Hollins Ferry Road plant's
closing or effects upon employees.
C. Analysis and Conclusions
The General Counsel and the Union contend that Re-
spondent violated Section 8(a)(5) and (1) of the Act by
refusing to extend the collective- bargaining agreement
covering the Potee Street and the Hollins Ferry Road
plants to the Owings Mills plant, as requested by the
Union in September 1977. As ground for their conten-
tion, the General Counsel and the Union urge that the
Owings Mills plant was an accretion to the existing bar-
gaining unit. Respondent argues that it had no such obli-
gation, on the ground that the Owings Mills plant was
not an accretion to the existing unit. For reasons stated
below, I find that Respondent's refusal to extend the
contract covering Potee Street and Hollins Ferry Road
plant to Owings Mills was an unlawful refusal to recog-
nize and bargain with the Union.
It is well settled that where an employer establishes a
new operation which constitutes an accretion to an exist-
ing bargaining unit, the employer's refusal to include the
new operation in the bargaining unit upon the bargaining
representative's request is a violation of Section 8(a)(5)
and (1) of the Act. Goodyear Tire & Rubber Company,
195 NLRB 767, 769-770 (1972). Here, I find the Union
made such a request on or about September 12, 1977,
when Owings Mills began operation. Thus, the issue in
this case turns on whether the Owings Mills plant was an
accretion at the time of the Union's request, or a separate
independent unit. The determination of whether the
Owings Mills plant was an accretion requires careful
consideration of its circumstance. Thus, in the words of
an earlier writer, which the Board approved:
Whether or not a particular operation constitutes an
accretion or a separate unit turns, of course, on the
entire congeries of facts in each case. In determin-
ing that a newly established facility or operation is
an accretion to an existing unit, the Board has given
weight to a variety of factors, such as integration of
the operations; centralization of managerial and ad-
ministrative control; geographic proximity; similar-
ity of working conditions, skills, and functions;
common control over labor relations; collective-bar-
gaining history; and interchangeability of employ-
ees. [The Great Atlantic and Pacific Tea Company
(Family Savings Center), 140 NLRB 1011, 1021
(1963).]
Examining the circumstances in the instant case, I find
that the balance of factors support a finding of accretion
at the time the Union requested extension of the contract
to the new Owings Mills plant. First, I note that, accord-
ing to Chairman Knepper's testimony, Respondent estab-
lished Owings Mills to augment Hollins Ferry Road's
production of smoke detectors. Further, Respondent's
counsel told the Union on September 28, 1977, that
Owings Mills was a supplement to Hollins Ferry Road
plant. Both plants produced Respondent's SS-200 model
until the October 31 layoff.
A further factor was the similarity of skills required at
both Hollins Ferry and Owings Mills. In October 1977,
Respondent transferred 15 Hollins Ferry Road employ-
ees to Owings Mills. The stated purpose of these trans-
fers was to provide a cadre of experienced employees to
assist production and to train newly hired employees. In
February 1978, when Respondent decided to close the
Hollins Ferry Road plant, it extended an offer of em-
ployment to all the unit employees at Hollins Ferry
Road without requiring additional training. Thus I find
that the employees of two plants were substantially inter-
changeable.
Respondent's three plants drew their employees from
the same Metropolitan Baltimore labor market. In hiring
employees for Owings Mills, Respondent placed want
ads in suburban Baltimore papers as well as in a Balti-
more city paper, the Sun. Chairman Knepper also chose
Owings Mills because of its proximity to a Baltimore city
bus line, which also ran past the Potee Street plant.
Owings Mills was about 27 miles from both the Potee
Street and Hollins Ferry Road plants.
Chairman Knepper, President Michael Kovens, Direc-
tor of Operations Amedee Dean, and Director of Human
Relations Robert O'Neill exercised centralized control
over the three plants. Knepper was in charge of market-
ing, finance, and administration. Kovens oversaw engi-
neering and new product development. Dean maintained
operational control of production. His duties required
that he maintain an office in each plant. Dean also estab-
lished the qualifications for the new hires at Owings
Mills. Robert O'Neill, Respondent's director of human
relations, also participated in the operation of Owings
Mills. He handled the hiring of new employees at
Owings Mills in September 1977. In October 1977,
O'Neill interviewed and transferred employees from Hol-
lins Ferry to Owings Mills. At all times material O'Neill
carried out Respondent's policies regarding hiring, firing,
employee relations, and its relations with governmental
agencies on a corporate wide basis.
Respondent's managerial and staff activities concerning
engineering, quality control, maintenance, payroll, per-
sonnel purchasing, and manufacturing were at all times
material performed on a corporatewide basis. Further,
these activities were centrally controlled. Prior to De-
67()
UNIVERSAL SECURI'Y INSTRUMENI'S. INC
cember 1977, the officers and management personnel re-
sponsible for these corporate functions were housed at
the Respondent's Potee Street plant. After December,
Respondent transferred its corporate headquarters to the
Owings Mills plant.
In light of the foregoing factors, I find that on or
about September 12, 1977, and thereafter, the Owings
Mills plant was an accretion to the existing unit. Thus,
when the Union requested extension of the existing col-
lective-bargaining agreement to the Owings Mills oper-
ation, Respondent's refusal constituted a violation of Sec-
tion 8(a)(5) and (1) of the Act.
I find no merit in Respondent's suggestion that the
1976 contract's recognition clause, which limited recog-
nition of the Union to the Baltimore, Maryland, facilities
at Potee Street and Hollins Ferry Road, precluded the
Union from demanding extension of the contract to
Owings Mills. The place designations stated in article I
of the 1976 agreement merely defined the extent of the
unit as it existed at the time the agreement was executed.
I find and conclude that by that language the Union did
not waive its right to extend the contract to an accretion.
Robertshaw Controls Co., 240 NLRB 1260 (1979).
The complaint alleges that Respondent further violat-
ed Section 8(a)(5) and (I) of the Act by failing to meet
and bargain with the Union concerning Respondent's de-
cisions to terminate the Hollins Ferry Road facility, and
the effects of the transfer of the Hollins Ferry Road
plant's portion of smoke detector production to Owings
Mills. Respondent contends that it was under no obliga-
tion to bargain concerning the decision to terminate the
Hollins Ferry Road plant. Respondent also argues that it
has satisfied the statutory obligation to bargain about the
effects of the closing at Hollins Ferry Road. I disagree
with Respondent's positions.
There is ample authority showing that "the Board ap-
pears consistently to have adhered to the principle that
an employer must bargain with employees concerning a
partial discontinuance or shifting, change, or relocation
of its business operations effecting the terms and condi-
tions of unit employees, as well as concerning the effects
thereof." Burroughs Corporation, 214 NLRB 571, 579
(1974). Accord: First National Maintenance Corp., 242
NLRB No. 72 (1979). Here, on February 2, 1978, Re-
spondent decided to terminate its Hollins Ferry Road op-
eration. Then, on February 3, 1 day after the decision
was made, Human Relations Director O'Neill began to
recruit, on an individual basis, the 90 to 100 employees
then working at Hollins Ferry Road for transfer to
Owings Mills. This project required 2 to 3 days to com-
plete. Respondent failed to give the Union adequate
notice. For, on the very day that O'Neill began transfer
interviews, Respondent told the Union only that closure
of Hollins Ferry was a probability "within the next few
weeks." There was no indication that Respondent was in
fact carrying out its decision. Even assuming that Re-
spondent's message was designed to stimulate the
Union's concern, Respondent did not provide the Union
with ample time to seek bargaining about the decision
made only I day before the letter was written. Here, the
Respondent's decision to terminate the Hollins Ferry
Road plant was not communicated to the Union until it
had almost become a fait accompli. Good-faith bargaining
required Respondent to provide the Union with notifica-
tion of its plans before the machinery for their accom-
plishment had become active. This, Respondent did not
do.
The Respondent's obligation was not satisfied by the
meeting of February 14 and subsequent meetings with
union representatives at which transfers of five Hollins
Ferry Road plant employees \were discussed. Those
meetings came too late. Responldent had already disposed
of 90 or more Hollins Ferry Road plant employees and
had decided to close that plant. In short the Union had
insufficient warning to exercise its right to request bar-
gaining about the closing and its effects on the bargining
unit. I find therefore that Respondent violated Section
8(a)(5) and (1) of the Act by failing and refusing to bar-
gain with the Union concerning the termination of Hol-
lins Ferry Road, the transfer of the production oper-
ations of that plant to the Owings Mills plant, and the
effect of that closing upon the unit employees both at
Owings Mills and at Hollins Ferry.
Respondent retained the right under the contract "to
relocate its plant or any portion thereof." However, con-
trary to Respondent's urging, I find that the Union did
not, by that language, bargain away its right to bargain
about plant termination, or the transfer of unit work
from one plant to another.
Likewise, by proceeding unilaterally, without notice to
the Union, Respondent again violated Section 8(a)(5) and
(I) of the Act when it transfered 15 employees from
Hollins Ferry Road to Owings Mills in October 1977.
Those transfers involved changed terms and conditions
of employment of bargaining unit employees such as
health benefits, wages, and seniority about which the
Union was entitled to be consulted prior to their imple-
mentation. N'L.R.B. v. Benne Katz, etc.. d/b/a Uilliam-
burg Steel Products Inc., 369 U.S. 736 (1962); Wellman In-
dustries, Inc., 222 NLRB 204, 206 (1976). Here, Respond-
ent gave the Union no notice at all. Instead, Respondent
recruited unit employees for transfer to Owings Mills in-
dividually, without regard to the Union. 6
Finally, the complaint alleged that Respondent violat-
ed Section 8(a)(3) and (1) of the Act by terminating 29
Hollins Ferry Road employees in February because of
their support for the Union. Respondent denies commit-
ting such discrimination and urges that there is no show-
ing of union animus to support the complaint. However,
I find that Respondent by its treatment of the 29 Hollins
Ferry employees in February 1978 terminated them in an
effort to weaken the Union's support among the Owings
Mills plant employees.
Contrary to Respondent, I find ample evidence of its
union animus. In October 1977, O'Neill warned employ-
ee Egitto that if the Owings Mills employees sought
union representation, they could expect the same harsh
treatment they had received at Hollins Ferry. Although
not alleged in the complaint, I find O'Neill's remark con-
') The omnplaint did nI t i rpcfica,.ll, ll k ege I h1e t ithe ()llhhcr '1'77 Illl-
lateral Iransfer , ritilatlcd Se, . )(5) aI l]d (I) f I t e A. IH ...% ,vC, r a', Ihe
ulnderlying faci, ts re full, Iilgalteld. iBoardl la.. pcrlrlt, nmt I.0 make ti ch
a findingg K,srronl, P ,ri/ a.cr,. In-, . 242 Ni R I No '77 fi 2 (1'1')
(,71
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stituted a threat of reprisal violative of Section 8(a)(1) of
the Act. I also find violative of Section 8(a)(1) of the
Act, and indicative of Respondent's union animus,
O'Neill's remarks to the same effect in February, when he
told the employees in the Owings Mills cafeteria that
they had been treated like animals at the Hollins Ferry
Road plant because there was a union representing
them.7 This remark carried the implication that if the
employees sought and obtained union representation at
Owings Mills, Respondent would again treat them harsh-
ly.
Further evidence of Respondent's animus was its re-
peated violations of its obligation to bargain with the
Union. Such evidence of animus belies Chairman Knep-
per's testimony that when contemplating the transfer of
employees to Owings Mills and the establishment of
Owings Mills, Respondent gave no thought to the
Union. Although it is not shown that Respondent's moti-
vation in opening Owings Mills and closing Hollins
Ferry was a desire to dislodge the Union, I nevertheless
find that Respondent seized upon these events as an op-
portunity to rid its smoke detector operations of the
burden of collective bargaining with the Union.
I also find that Respondent in dealing with Hollins
Ferry bargaining unit employees offered them opportuni-
ties to work at Owings Mills under discriminatory condi-
tions. Thus, in October 1977 and February 1978, the
transferees from Hollins Ferry to Owings Mills received
less job security than the newly hired Owings Mills em-
ployees. Thus, as is found above, Respondent notified the
transferees that they would enjoy company seniority
with respect to their wages and fringe benefits but would
only be accorded plant seniority with respect to layoff.
In light of Respondent's desire to maintain Owings Mills
free of union representation, and O'Neill's threats, the re-
duced seniority accorded Hollins Ferry transferees
appear to be part of a plan to keep the Owings Mills
plant free of the Union. I find therefore that the employ-
ees who rejected O'Neill's offer were in effect dis-
charged because of their adherence or probable adher-
ence to the Union. Accordingly, I find that the 29 em-
ployees whose names are set forth below in Appendix
"A" were terminated in violation of Section 8(a)(3) and
(1) of the Act. 8
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Industrial Union of Marine & Shipbuilding Workers
of America AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by the Respondent at its Baltimore, Maryland
facilities at 2829 Potee Street, 3341 Hollins Ferry Road,
7 These remarks were not alleged as violations in the complainl. liow-
ever, as the October and February warnings were fully litigated. they
may properly be found to be violations of the Act. KAeyvonc Prilzel
Bakery, Inc.. supra.
R I find it unnecessary to determine whether Respondent further violat-
ed Sec 8(a)(5) of the Act hby the discriminatory terminations and shall
recommend dismissal of the pertinent allegation in the complaint
and at its Owings Mills, Maryland, plant, including cus-
todial and plant clerical employees, but excluding all
office clerical employees, professional employees, watch-
men, guards and supervisors as defined in the Act, con-
stitute a unit appropriate for purposes of collective bar-
gaining within the meaning of Section 8(a)(5) and 9(b) of
the Act.
4. By failing and refusing to recognize and bargain
with the Union as the exclusive bargaining representative
for the production and maintenance employees at its
Owings Mills plant, Respondent has violated Section
8(a)(5) and (I) of the Act.
5. By unilaterally, and without notice to or consulta-
tion with the Union, transferring unit work from it Hol-
lins Ferry Road plant to its Owings Mills plant, Re-
spondent violated Section 8(a)(5) and (1) of the Act.
6. By failing to bargain with the Union over the effects
of transferring said unit work to the Owings Mills facili-
ty and by failing to consult with and bargain with the
Union regarding the transfer of Hollins Ferry plant em-
ployees to the Owings Mills plant, Respondent has vio-
lated Section 8(a)(5) and (1) of the Act.
7. By discriminating against its Hollins Ferry Road
employees with respect to conditions of employment and
by terminating Hollins Ferry Road employees, thereby
discouraging membership in the Union, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
8. By threatening employees with reprisals if they se-
lected a union as the collective-bargaining representative,
Respondent restrained, coerced, and interfered with em-
ployees in the enjoyment of their rights under Section 7
of the Act and thereby violated Section 8(a)(1) of the
Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
10. Respondent has not otherwise violated the Act.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be re-
quired to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Having found the Respondent violated Section 8(a)(5)
and (1) of the Act, by refusing to bargain about its deci-
sion to close the Hollins Ferry plant and the effects
thereof, I shall recommed that Respondent be required,
upon request, to bargain collectively with the Union
concerning the decision and the effects upon the unit em-
ployees of the closure and the transfer of work from the
Hollins Ferry Road plant to the Owings Mills plant, par-
ticularly with respect to the transfer of such employees
and their seniority. I shall also recommend that Respond-
ent be required to recognize and bargain collectively
with the Union concerning wages, hours, and conditions
of employment of the Owings Mills plant employees and
that Respondent be required to extend the collective-bar-
gaining agreement currently covering its Potee Street
employees to the Owings Mills plant employees. I shall
also recommend retroactive application of the collective-
bargaining agreement covering the Potee Street and Hol-
672
UNIVERSAL SECURITY INSTRUMENTS. INC
lins Ferry Road plant to the Owings Mills plant as of
September 1977 or such other date as may be determined
as the date upon which the union requested recognition,
bargaining, and extension of the contract to the Owings
Mills plant. Thus, I shall require Respondent to make
employees whole for any loss of benefits which would
have accrued to them under the terms and conditions of
employment set forth in the collective-bargaining agree-
ment covering the bargaining unit. I shall also recom-
mend that Respondent be required to make the Union
whole for any dues lost as a result of Respondent's un-
lawful conduct, with interest thereon in the amounts pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962). I shall further recommend that after Respondent
and the Union have bargained concerning the decision to
close Hollins Ferry Road plant and the affects of the
transfer of Respondent's production operations from
Hollins Ferry Road to Owings Mills on employees repre-
sented by the Union at Hollins Ferry Road, that Re-
spondent also offer the employees who suffered discrimi-
nation immediate and full reinstatement to either their
former positions or to positions that they would have oc-
cupied had Respondent bargained in good faith, without
prejudice to their seniority or other rights and privileges.
I shall also require Respondent to make 'hem whole for
any loss of pay they may have suffered by reason of the
discrimination against them. Any backpay found to be
due shall be computed, with interest in the manner pre-
scribed in F. W Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 117
(1977). 9 Upon the entire record the findings of fact and
the conclusions of law and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER '
The Respondent, Universal Security Instruments, Inc.,
Baltimore and Owings Mills, Maryland, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with Industrial
Union of Marine & Shipbuilding Workers of America,
AFL-CIO, concerning the decision and the effects of its
decision to terminate its Hollins Ferry Road plant and
transfer that plant's production to Respondent's Owings
Mills, Maryland, plant.
(b) Refusing to bargain in good faith with Industrial
Union & Marine Shipbuilding Workers of America
AFL-CIO, as the exclusive collective-bargaining repre-
sentative of the employees at its Owings Mills, Mary-
land, plant as part of the unit herein found to be appro-
priate.
(c) Refusing to bargain in good faith with Industrial
Union & Marine Shipbuilding Workers of America,
I See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)
'0 In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.4S of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
AFL-CIO, regarding transfers of employees or other
terms or conditions of employment.
(d) Discriminating against its employees with respect
to wages, hours, or conditions of employment because of
their union membership or union activity.
(e) Dealing with employees, individually, who are rep-
resented by an exclusive collective-bargaining representa-
tive regarding wages, hours, seniority, or other terms
and conditions of employment.
(f) Threatening employees with economic reprisals be-
cause they support and adhere to Industrial Union of
Marine & Shipbuilding Workers of America, AFL-CIO,
as their exclusive collective-bargaining representative or
any other labor organization.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Recognize Industrial Union of Marine & Shipbuild-
ing Workers of America, AFL-CIO, as the exclusive
collective-bargaining representative of its employees in
the appropriate unit employed at its Owings Mills, Mary-
land, facility.
(b) Apply the terms of the collective-bargaining agree-
ment executed by the Respondent and Industrial Union
of Marine & Shipbuilding Workers of America, AFL-
CIO, to the employees in the appropriate unit employed
at its Owings Mills, Maryland, plant.
(c) Make whole the employees at the Owings Mills
plant for any losses of benefits which would have ac-
crued to them under the terms of the collective-bargain-
ing agreement during the time Respondent refused to
apply the terms of the agreement to said employees.
(d) Make whole the above-named Union for any
moneys that would have been due the Union under the
terms of any checkoff authorizations executed by Re-
spondent's employees, but which were not deducted and
transmitted to the Union as a result of Respondent's fail-
ure to apply the terms of the collective-bargaining agree-
ment to said employees.
(e) Upon request, bargain with Industrial Union of
Marine & Shipbuilding Workers of America, AFL-CIO,
concerning the transfer of 15 employees to the Respond-
ent's Owings Mills plant, the effects on employees repre-
sented by that Union at Hollins Ferry Road of the termi-
nation of that plant, the closure of the Hollins Ferry
Road plant, and the transfer of its production operations
to the Owings Mills plant, including the employees'sen-
iority rights.
(f) After such bargaining, and in accordance with the
section of this Decision entitled "The Remedy," offer
employees immediate and full reinstatement to their
former positions at the Hollins Ferry Road plant, or to
positions they would have occupied had Respondent bar-
gained in good faith, without prejudice to their seniority
or other rights and privileges and make them whole.
Offer the employees listed in Appendix A immediate and
full reinstatement, either to their former positions or to
positions at Owings Mills and make them whole in ac-
673
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cordance with the section of this Decision entitled "The
Remedy."
(g) Upon request, bargain with aforesaid union con-
cerning the seniority of all employees transferred from
the Hollins Ferry Road plant to the Owings Mills plant
commencing on September 12, 1977, and thereafter, until
the termination of the Hollins Ferry Road plant, and
after such bargaining adjust such employees seniority in
accordance with the agreement reached with the afore-
said union.
(h) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying, all
payroll records, reports, and all other records necessary
to analyze the amounts of backpay and dues and the
rights of employment under the terms of this Order.
(i) Post at its Owings Mills plant and at the Hollins
Ferry Road plant, if it reopens, copies of the attached
notice marked "Appendix B," 11 and mail to the last
known address of each employee terminated from Re-
spondent's Hollins Ferry Road plant, whose names are
set forth in Appendix A and who are not employed at
either the Owings Mills plant, or the Hollins Ferry Road
plant a copy of such notice. Copies of said notice, on
forms provided by the Regional Director for Region 5,
I' In the evenil that this Order is entforced by a Judgment of the
United States Court of Appeals. the words in the notice reading "P'oted
by Order of the National l.abor Relations Board" shall read "P'o'sted l'ur-
suant to a Judgment of the United States Court of Appeals enforcing an
Order of Ihe National L.ahor Relations Board "
after being duly signed by Respondent, shall be posted
immediately upon receipt thereof, in conspicuous places,
and be maintained by it for 60 consecutive days. Reason-
able steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(j) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges unfair labor practices not
found herein.
APPENDIX A
Josephine Sanders
Romaine Neal
Mollie Jones
Peggy Anderson
Cannie Singer
Marie Lowe
Dessie Leicht
Debra Holmes
Zola Wheeler
Sharon Powers
Dawn Strozykowski
Nancee Moore
Catherine Gross
Kathleen Wonch
Naomi LeBon
Laura Ellerbe
Harriet Wilson
Milagros Gonzalez
Barbara Williams
Doris Forrester
Vivian Cavey
Ella Hammond
Nancy Miller
Frankie Faulkner
Rosalie Emerson
Mary Hanssen
Barbara Simmons
Carmella Hernandez
Carolyn McCormick
674