Westwood Import Co., Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1213 (N.L.R.B. 1980)

WES-T'(()()) IlPORI COMPANY. INC 1213
Westwood Import Company, Inc. and Office and
Professional Employees Union, Local 3, Office
and Professional Employees International
Union, AFL-CIO, CLC
Gamut Designs, Inc., d/b/a Westwood Import Com-
pany and Office and Professional Employees
Union, Local 3, Office and Professional Em-
ployees International Union, AFL-CIO, CLC.
Cases 32-CA-1813 and 32-CA-1977
August 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On January 25, 1980, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, Respondents filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in response to Respondents'
exceptions.
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,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
amplified herein.
The amended complaint alleges, inter alia, that
Respondent Westwood Import Company, Inc.
(Westwood), violated Section 8(a)(5) and (1) of the
Act by withdrawing recognition from the Union as
the exclusive collective-bargaining representative
of the unit employees employed at its Hayward,
California, facility; and by refusing to comply with
the terms of the collective-bargaining agreement at
the Hayward facility. There is no material dispute
over the facts. Westwood and the Union negotiated
a collective-bargaining agreement effective from
December 30, 1976, through December 30, 1979.2
In early February, Westwood notified the Union
and its employees of its intention to relocate its
business on April 2 to a facility in Hayward, Cali-
fornia, located across San Francisco Bay approxi-
mately 30-35 miles from the old San Francisco fa-
cility. Westwood welcomed employee transfers and
indicated that it would assist transferring employ-
ees. On February 12, 13, 16, and 20, representatives
from Westwood and the Union met and bargained
I In ec B.2, of his Decision, in the nexl to last paragraph, he Admin-
istratlve Law Judge inadverlently designated April 2, 1979,. as the dale
Gamut Designs, Inc. assumed control of the usiness That date should
he corrected to read Jul' 20, 1979
a All dates are in 1979 unless otherwise indicated
251 NLRB No. 162
over the effects of the relocation and during the
last of these sessions the parties reached an agree-
ment. However, during the negotiations West ood
proposed that the Union agree to terminate the ex-
isting contract after the relocation; the Union re-
jected this proposal, insisting that the agreement
would continue in effect after the relocation. The
normal employee complement in San Francisco
numbered 21; however, by March 30, the old facili-
ty's final day of operation, the unit employee com-
plement totaled 18. Of these 18 employees. 15
transferred to Hayward, including 6 employees
who were hired from the Hayward area and who
worked in San Francisco for periods of 1 to 6
weeks with the understanding they would transfer
to Hayward at the time of the relocation.3 After
the relocation, Westwood refused to recognize the
Union as the Hayward unit employees' exclusive
bargaining representative, and it also refused to
comply with the terms of the above-described col-
lective-bargaining agreement. The Administrative
Law Judge found that the Union remained the unit
employees' bargaining representative after the relo-
cation and he further found that the agreement
continued in effect after the relocation. There is no
allegation that the relocation was motivated by an-
tiunion or other unlawful reasons, nor does the
General Counsel contend that Westwood failed to
satisfy its obligation to bargain with the Union
over the effects of the relocation.
Respondents except, inter alia, to the Administra-
tive Law Judge's application of "contract-bar prin-
ciples," contending he erred by finding that a con-
clusive presumption existed with respect to the
Union's continued majority status at the Hayward
facility; by failing to consider the defense that
Westwood's withdrawal of recognition after the re-
location was lawful because the Union did not in
fact enjoy the majority support of the unit employ-
ees at Hayward, and/or because Westwood held a
good-faith doubt about the Union's majority repre-
sentative status at Hayward; and by refusing to
allow the introduction of evidence in support of
Westwood's good-faith doubt contentions. We
have carefully considered Respondents' contentions
and find them to be without merit.
The well-established rule is that an employer
may not normally refuse to continue dealing with a
union during the period in which their contract is a
bar for purposes of our representation proceedings.
In Sanson Hosiery Mills, Inc.,4 the Board held that
the employer violated Section 8(a)(5) of the Act by
withdrawing recognition from the union in the
' One emploxec uho transferred from Sall F'ariicsco as cm nmllo) cd Il
a nonunit posl ion at Ha ,sard
42 NILRB 111)2, 103 I195)1. einfd 195 1
:
2d 350) 15lh C'lr 52)
1214 I)EFCISI()NS OF NATIONAL L.ABOR RELATIONS BOARI)
"period during which the contract was a bar and
no question concerning representation might valid-
ly be raised .... " In Hexton Furniture Company,5
the Board discussed the rationale behind conform-
ing the application of Section 8(a)(5) of the Act
and the contract-bar rule under which the Board
refuses to entertain a representation petition during
the term of a valid collective-bargaining agreement.
The Board noted that, if the employer or another
labor organization had filed a petition for election
during the term of the contract between the em-
ployer and the union, the Board would have dis-
missed it as premature. Accordingly, it followed
that, during the period in which the contract acted
as a bar, the employer was obligated to continue to
recognize and bargain with the union pursuant to
the requirements of Section 8 of the Act. Other-
wise, the employer could unilaterally eliminate or
change its employees' bargaining representative at
a time when the Board would refuse to allow such
a change. 6
The effect of a company relocating on the afore-
mentioned rules is not substantial. The Board has
held on numerous occasions that an existing and ef-
fective collective-bargaining agreement remains in
effect following a relocation, provided operations
and equipment remain substantially the same at the
new location, and a substantial percentage of the
employees at the old plant transfer to the new loca-
tion. 7 Here, Westwood relocated during the term
of an existing collective-bargaining agreement,
Westwood operations remained substantially the
same after the relocation, and a substantial percent-
age of the employees transferred to the Hayward
plant."
The various cases relied on by Respondents con-
cerning relocations are clearly distinguishable from
the instant case. In Mass. Machine & Stamping, Inc.
III NLRB 342 (1955).
s See Pioineer Inn .4socria(. d/bla Pioneer Inn and Pioneer Inn Casino.
228 Nl.RB 1263 (1977), enfd. 578 F2d 835 (9th Cir 1978); Marcus Truck-
ing Compan. Inc.. 126 NLRB 1080 (1960). enfd. 286 F.2d 583 (2d Cir
1961). and Shulnrock Dairy. Inc, ei at, 119 NLRB 998 (1957), and 124
NlIRB 494 (1959), enfd 280 F2d 665 (DC Cir. 1960), cert. denied 364
LI S 892
lricor Producis. Inc. and/or C & J Pattern Co., 239 NLRB 65 (1978);
Lutheran Ilomrne and Hopirltas, Inc. d/b/a Fairlawn Care Center, 233
NLRH 1025 (1977): W 7' Grant Company, 197 NLRB 955 (1972); and
International Paper Company, 150 N.RB 1252, 1258-59 (1965).
M We agree with the Administrative Law Judge that those employees
who were hired in the Hayward area and trained from I to 6 weeks in
San Francisco should be counted as part of the employee complement
that transferred from the old facility The Arrow Company, a Division of
C/lue,i. Peabody & Co., Inc., 147 NLRB 829 (1964). Moreover, even if
those employees were not included as part of the employee complement
that transferred, we would find that a sufficiently large number of em-
plolees transferred to constitute a substantial percentage. By the end of
April 1979, when the Hayward facility was fully operational. 7 of the 18
unit employees employed there were transferees from San Francisco, or
approximately 40 percent See W F. Grant Co., supra at 956, where the
Board found that 34 transferring employees out of a total employee com-
plme:nt of 75 at the new location constituted a substantial percentage
(formerly Massachusetts Machine Shop, Inc.),9 the
collective-bargaining agreement at the old facility
terminated at the time of the move under a specific
contract provision. After the relocation, the com-
pany refused to recognize the union, claiming that
it held a good-faith doubt about the union's contin-
ued majority representative status at the new facili-
ty. As here, in Mass. Machine the company's oper-
ations at the new facility continued substantially
unchanged from the old plant's operations and the
relocation was accompanied by the transfer of a
substantial percentage of employees from the old to
the new facility. The Board in that case considered
the company's claim of good-faith doubt about the
union's majority status at the new facility, and
found that the company's claim was not based on
legitimate considerations. As a result, the Board
concluded that the company violated Section
8(a)(5) by refusing to recognize and bargain with
the union at the new facility.
Respondents take the position that, at the very
minimum, Mass. Machine stands for the proposition
that a company may always raise good-faith doubt
claims after a relocation.'° But that interpretation
fails to recognize that in Mass. Machine, unlike
here, the collective-bargaining agreement terminat-
ed at the time of the relocation. That distinction is
crucial. After the expiration of a valid collective-
bargaining agreement a union enjoys a rebuttable
presumption that its majority representatives status
continues. t1 Such a presumption may be effective-
ly rebutted if the employer affirmatively establishes
either (I1) that at the time of the refusal to recog-
nize the union it in fact no longer enjoyed the ma-
jority support of the unit employees; or (2) that the
employer's refusal was predicated on a good-faith
doubt, based on objective considerations, of the
union's majority status. 2 However, the burden of
rebutting the presumption rests on the party who
would do so.'3 As previously noted, in Mass. Ma-
chine there was no agreement in effect after the re-
' 231 NLRB 801 (1977), enforcement denied 578 F2d 15 (1st Cir
1978).
' Actually, Respondents interpret the prior case law as holding that a
relocation obviates completely a company's obligation to recognize a
union, and to honor the terms of a current collective-bargaining agree-
ment, at a new facility To the extent that las Machine is inconsistenlt
with that interpretation, Respondents contend that it marks a departure
from the established precedent
t" errell Machine Company 173 NLRB 1480 (1969). enfd 427 F.2d
1088 (4th Cir. 1970): and Celaneve Corporation of America, 95 NLRB 664
(1951)
" Bartenders. Hotel, and Restaurant Employers Bargaining Association of
Pocatello, Idaho and its Employer-Members. 213 NLRB 651 (1974): and
ierrell Machine Co. supra This same rebuttable presumption applies
when there is no agreement in effect upon the expiration of the first year
following a union's certification.
':' Barrington Plaza and Tragniew. Inc. 185 NLRB 962 (1970). en-
forcement denied on other grounds sub nom N 1. R B v Tragniew, Inc.,
and Conolidated Hotels of California. 470 F 2d 669 (9th Cir 1972)
WESTIW()OD IMPORT COMPANY. INC 1215
location and, consequently, the company could le-
gitimately raise good-faith doubt contentions as a
defense to the charge that it unlawfully withdrew
recognition. From the foregoing discussion, it is
readily apparent that Mass. Machine provides no
support for Respondents' interpretation of
Westwood's bargaining obligation after the reloca-
tion to Hayward.' 4
At footnote 19 of his Decision, the Administra-
tive Law Judge distinguished some of the cases
relied upon by Respondents from the instant case
on the ground that those former cases did not in-
volve relocations during the term of a collective-
bargaining agreement. Respondents contend that
the Administrative Law Judge was wrong because
two of the cases cited did, in fact, present fact pat-
terns involving relocations during the term of an
agreement. In Respondents' view, these two cases,
Mass. Machine & Stamping, supra, and Fraser &
Johnston Company,'5 along with the additional case
of Westinghouse Electric Corporation, ' support
their contention that the Board has found that an
employer may withdraw recognition from a union
after a relocation, even if the relocation occurs
during the term of an existing collective-bargaining
agreement. However, careful examination reveals
that Respondents have misconstrued the findings in
those cases.
While Respondents are correct, in small part, in
their assertion that the Administrative Law Judge
erred in his attempt to distinguish between the
cases on the sole basis of whether the relocation
occurred during the term of a collective-bargaining
agreement, nonetheless, the cases raised by Re-
spondents are clearly inapposite from the instant
proceeding and do not impinge upon the overall
validity of the Administrative Law Judge's analy-
sis, findings, and conclusions. As discussed above,
the relocation in Mass. Machine did not occur
during the term of an effective agreement and thus
Respondents' reliance on that case is misplaced.
Similarly, in Westinghouse Electric Corporation, the
Board found that the new facility (Bay Bridge) in-
volved there did not constitute a relocation, but
rather constituted a completely new facility with
operations essentially unrelated and distinct from
the employer's other facility (Parker Road). Indeed
'' As notled above, in Mass. Machine a crucial elemenl a thile fact
that employees from the old locatlion comprised a suhstantial percentage
Ill of 21) of the employees at the nes location Without this essential
fact, the fact pattern in Mass Machine would have closely resembled the
pattern presented in The Pierce Governor Company, Inc., 164 NLRB 97
(1967), enfd. sub nom. International Union. United Automobile. Aerospace.
and Agricultural Implement Workers of .4merica (UAWI v N L.R.B.. 394
F.2d 757 (D.C. Cir. 1968), where the Board found that the relocating em-
ployer had no duty to recognize and bargain with the union at the new
facility.
's 189 NLRB 142 (1971), enfd in part 469 F2d 1259 (9th Cir 1972)
' 174 NLRB 636 (1969)
the operations at Parker Road continued substan-
tially unchanged after the establishment of the Bay
Bridge plant. For that reason, the Board found that
the company had no obligation to recognize and
bargain with the Union at Bay Bridge, unless and
until the union established that it had obtained the
support of a majority of the unit employees em-
ployed at that facility.
Finally, although Fraser & Johnston, the other
case raised by Respondents, did involve a reloca-
tion occurring during the term of a collective-bar-
gaining agreement, that case also is clearly distin-
guishable from the instant case. In a number of in-
stances the Board has considered cases involving
relocations accompanied by attendant unfair labor
practices. Usually, the unfair labor practices have
involved an employer's failure to satisfy its duty to
bargain with its employees' representative about
the effects of a relocation, including the terms
under which employees will be allowed to trans-
fer. 17 In other instances, the unfair labor practices
have involved an attempt by an employer to use a
relocation for valid economic reasons as a method
of eliminating the union.'S Another fact present in
these cases is the transfer of few, if any, employees
from the old facility to the new facility.' 9 The
Board's approach in this type of case has remained
constant. After finding that an employer has com-
mitted this type of unfair labor practice, the Board
has then examined the question of whether a ma-
jority of the unit employees at the new facility
would have been comprised of employees from the
old facility had it not been for the employer's un-
lawful activity. If the facts show that a majority
would not have transferred in any event, then the
Board has found that the employer is not obligated
to bargain with the union at the new location
unless the union newly establishes its majority sup-
port among the unit employees. 21 On the other
'7 ifrasr d Jhnoion. upra. he (pcr hermnomtlr Cropany, lil
NLRB 1902 (1966). enfd in part 376 F2d 684 (2d Cir 1967): Rr'i
IrucA and rati-er Manufacruring Compun. In.. tr al. 1() NLRB 994
(1453)
M Alhlied Mil., Inc. 218 NLRB 281 (1975) Ilel/rove Binder. Inc. and
Gruphics A4rt I;nishing, Inc., 204 NLRB 499 (1973) and Juac Lil and
Jo Leviruan d/b/a California Foolwear Company. 114 NL RB 765 (1955),
enfd 246 F 2d 88b (9th Cir 1957) FEen in this tpe of case where a re-
location is combined with attendant unfair labor practlces. to a consider-
able extent contract-bar principles are interwoven into the applicable la"
See the Board's discussion in California f-oor ear Co., supra at 7t,q77(
"' 'this factor distinguishes cases n this category from cases in s hich
a relocation has occurred with attendant unfair labor practices but in
which a majority of the employees in the unit at the ness facility trans-
ferred from the old facility. In the latter type of case, there is no necessi-
ty to examine whether but for the relocating employer's unfair labor
practices additional unit employees would have transferred Since the re-
location occurred during the term of an agreement and since a majority
of the employees in the new facility transferred from the old facility, the
employer is obligated to recognize the union, and to honor the terms of
the contract, at the new facility
2t' Brmwn Truck and Trailer Manufacturing Company. Inc, vupra
-
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hand, if the facts show that but for the company's
unfair labor practices a majority or some significant
portion of the unit employees at the new location
would have been composed of employees from the
old location, then the Board has found that the
company is required to recognize and bargain with
the union at the new facility.2 1 Furthermore, if the
relocation occurred during the term of an agree-
ment, then the employer is also required to honor
the terms of the agreement at the new facility as in
Fraser & Johnston.22 Thus, the instant case differs
from the type of case exemplified by Fraser &
Johnston because of the existence in that latter type
of case of unfair labor practices that prevent union-
represented employees from an old facility from
transferring to a new facility in which they would
constitute a majority or some significant portion of
the unit employees.
Accordingly, for the foregoing reasons we con-
clude that the Administrative Law Judge was cor-
rect in his application of contract-bar principles in
his findings and conclusions pertaining to Respond-
ent Westwood's duty to bargain with the Union,
and to honor the terms of the collective-bargaining
agreement, at the Hayward facility. We have care-
fully examined Respondents' additional exceptions
and similarly find them to be without merit.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondents, Westwood
Import Company, Inc., and Gamut Designs, Inc.,
d/b/a Westwood Import Company, their respec-
tive officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, except that the attached Appendix A is sub-
stituted for that of the Administrative Law
Judge. 23
21 Cooper Thermometer Company. supra; and California Footwear Co.,
supra
2 See also Helrose Bindery, Inc., supra, and CaliJbrnia Footwear Co..
supra.
23 The Administrative Law Judge inadvertently failed to conform the
posting notice marked "Appendix A" to his recommended Order We
have corrected said notice accordingly.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RIELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, in the event we resume oper-
ations, engage in the following conduct: (a)
refuse to recognize and bargain with the
Office and Professional Employees Union,
Local 3, Office and Professional Employees
International Union, AFL-CIO, CLC, as the
exclusive bargaining representative of all of
our employees, excluding guards, managerial,
supervisory, sales, warehouse, professional,
and confidential employees; (b) refuse to give
effect to the terms and conditions of a collec-
tive-bargaining agreement with the above-de-
scribed Union without the consent of the
Union, or repudiate such an agreement; (c) in-
terrogate employees about their union mem-
bership, sympathies, or activities; (d) refuse to
bargain collectively with the above-described
Union by refusing to supply it with relevant
information upon request; and (e) in any like
or related manner interfere with, restrain, or
coerce employees in the exercise of the rights
guaranteed them in Section 7 of the National
Labor Relations Act, as amended.
WE WILL jointly and severally with Gamut
Designs, Inc., d/b/a Westwood Import Com-
pany make whole the employees represented
by the above-described Union for any loss of
employment benefits for the period on and
after April 2, 1979, due to our failure to give
effect to our collective-bargaining agreement
with the Union, with interest, and continue
such payments until such time as Gamut De-
signs, Inc., d/b/a Westwood Import Company,
at the request of the Union, has restored the
employees' terms and conditions of employ-
ment to what they were prior to the time we
repudiated our agreement with the Union.
WESTWOOD IMPORT COMPANY, INC.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this consolidated proceeding took place Octo-
ber 29 and 30, 1979, and is based on unfair labor practice
charges filed by Office and Professional Employees
Union, Local 3, Office and Professional Employees In-
ternational Union, AFL-CIO, CLC, herein called the
WESTWOOD IMPORT COMPANY. INC. 1217
Union,' in Case 32-CA-1813 on May 23, 1979, against
Westwood Import Company, Inc.,2 herein called Re-
spondent Westwood, and in Case 32-CA-1977 on July
27, 1979, against Gamut Designs, Inc., d/b/a Westwood
Import Company, herein called Respondent Gamut. On
September 19, 1979, the General Counsel of the National
Labor Relations Board issued an amended consolidated
complaint in these cases alleging that Respondents violat-
ed Section 8(a)(1) and (5) of the National Labor Rela-
tions Act, herein called the Act.3 Specifically, the con-
solidated complaint alleges that Respondent Westwood
violated Section 8(a)(1) of the Act by interrogating an
employee about the employees' union activities and vio-
lated Section 8(a)(5) and (1) of the Act by withdrawing
recognition from the Union and refusing to honor its col-
lective-bargaining agreement with the Union when, in
April 1979, Respondent Westwood relocated its place of
business from San Francisco, California, to Hayward,
California. The consolidated complaint further alleges
that Respondent Gamut, which purchased and took over
the operation of Respondent Westwood's business in July
1979, violated Section 8(a)(5) and (1) of the Act when it
refused to recognize and bargain with the Union as the
collective-bargaining representative of the employees at
the Hayward facility and that Respondents violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to comply
with the Union's request for information about the sale.
Respondents filed an answer to the amended consoli-
dated complaint, denying the commission of the alleged
unfair labor practices.
Upon the entire record, including my observation of
the witnesses, and on consideration of the briefs, I
hereby make the following:
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent Westwood Relocates its Business and
Refuses To Recognize the Union as the Employees'
Collective-Bargaining Representative at the New
Location
1. The evidence
During the time material herein Respondent
Westwood imported and sold housewares and gifts to
business enterprises. Prior to April 2, 1979, 4 it conducted
its business at 290 Division Street, San Francisco, Cali-
fornia. In 1976 the Union filed a representation petition
with the National Labor Relations Board seeking to rep-
resent the Company's employees and, pursuant to an
election agreement entered into by the Union and Re-
spondent Westwood, approved by the Board's Regional
Director, the Board conducted a secret ballot election at
the San Francisco facility. A majority of the employees
The Union is admittedly a labor organization within the maaning of
Section 2(5) of the Act.
2 Name appears as corrected at the hearing.
3 The record establishes that Respondents are employers engaged in
commerce within the meaning of Sec. 2(6) and (7) of the Act and meet
the National Labor Relations oard's applicable discretionary jurisdic-
tional standard
4 Unless otherwise specified all dates herein refer tI, the ear 1979
in an appropriate unit cast their ballots for union repre-
sentation. The tally of ballots shows that, of approxi-
mately 20 eligible voters, 12 cast their ballots for the
Union, 7 against, and there was I challenged ballot. On
September 2, 1976, the Board certified the Union as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All employees of Westwood Imports, Inc., at its fa-
cility located at 290 Division Street, San Francisco,
California, as listed in the attached stipulation; ex-
cluding all guards, managerial, supervisory, sales,
professional and confidential employees as defined
in the Act.
Thereafter, in 1976 the Union and Respondent
Westwood negotiated a collective-bargaining agreement
effective from December 30, 1976, until December 30,
1979. Article 1, section 1, entitled "Union Recognition"
reads as follows:
The Company recognizes the Union as the sole col-
lective bargaining agent . . . pursuant to the certifi-
cation of representative by the [Board] dated the
2nd day of September 1976 for all employees of
[Respondent Westwood] at its facility located at 290
Division Street, San Francisco, California 94103; ex-
cluding all guards, managerial, supervisory, sales,
professional and confidential employees, as defined
by the Act.
The collective-bargaining agreement also contains a valid
union-security clause which requires new hires to
become and remain members of the Union after complet-
ing a 60-day probationary period. However, it permitted
employees who were employed prior to the effective
date of the contract to have the option of joining or not
joining the Union. Also, the agreement contains a dues-
checkoff clause which provides for the deduction of the
employees' monthly dues by the Employer for those em-
ployees who give the Company written authorization.
In January 1978, in Case 20-UD-263, an employee pe-
titioned the National Labor Relations Board to rescind
the Union's authority to enter into the contractual union-
security clause. On February 14, 1978, an election was
held pursuant to this petition to determine whether the
employees desired to withdraw the Union's authority to
require membership in the Union pursuant to the con-
tractual union-security provision. The employees voted
17 to 4 in favor of retaining the union-security provision.
In addition to its managerial and supervisory employ-
ees, Respondent Westwood employed clerical employ-
ees, salespersons, and utility employees at the San Fran-
cisco facility. The clerical employees and utility employ-
ees were covered by the collective-bargaining agree-
ment. The usual complement of unit employees covered
by the collective-bargaining agreement totaled 22: office
staff, 8; computer room, 2; foreign order room, 2; ac-
counting, 4; customer service, 1; receptionist, 1; secre-
tary, 1; and utility employees, 3. The San Francisco fa-
cility did not employ any warehouse employees bacause
the Company received and shipped its merchandise from
a public warehouse in Oakland, California, using employ-
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees employed by the employer who operated that ware-
house. The three utility employees employed by the
Company picked up sample merchandise at the public
warehouse, which they stocked in the Company's sample
storeroom, and packed this merchandise for delivery to
sales representatives and trade shows. They also worked
on the Company's catalog section and picked up and de-
livered the mail.
On Friday, March 30, Respondent Westwood closed
its San Francisco facility and relocated its business to a
facility in Hayward, California, where, on Monday,
April 2, it commenced business operations. 5 The distance
between the two facilities is between 30 and 35 miles.
The two facilities are located within the same "labor
area"; they are located within "an economically integrat-
ed [area] within which workers may readily change jobs
without changing their place of residence." See U.S. De-
partment of Labor Employment and Training Adminis-
tration, Directory of Important Labor Areas, at pages I
and 5 (1978).
There is no contention or evidence that the decision to
relocate was motivated by anything other than a legiti-
mate business purpose or that it was motivated by a
desire to escape from the terms of the collective-bargain-
ing agreement. The only evidence adduced on the sub-
ject of the Company's motive for relocating its business
was the testimony of Harry Hovan, the Company's vice
president, that management informed the San Francisco
employees "that the Company was planning to move to
Hayward for various reasons; control [and] efficiency."
Early in February representatives of Respondent
Westwood notified the Union and the employees of the
Company's intent to relocate its business on April 2 to
Hayward and indicated to the employees that the em-
ployees were welcome to transfer and that management
would do all that it could to assist those who wanted to
transfer. During February and March representatives of
Respondent Westwood escorted groups of employees to
the new location in Hayward in order to give them an
idea of what the new facility was like and how to get
there, so that the employees could intelligently decide
whether or not they wanted to transfer.
During February, on February 12, 13, 16, and 20, ne-
gotiators for the Union and the Company met and bar-
gained about the effects upon the employees of the relo-
cation of the San Francisco facility to Hayward. The
result was that on February 20 the negotiators reached
an agreement which on or about February 22 was rati-
fied by the Union's membership. The agreement in sub-
stance provided that, for the employees who elected not
to transfer to Hayward, the Company would not chal-
lenge their claims for unemployment insurance benefits
and would pay I week severance pay for each year of
service up to a maximum of 4 weeks' pay to those em-
ployees who remained in the Company's employ until
March 31. And, for the employees who elected to trans-
fer to Hayward and who had completed 1 year of serv-
ice by March 31, the Company agreed to pay a $75-a-
5 As described infra, late in February Respondent ceased using a
public warehouse to receive and ship its merchandise and commenced to
operate its own warehouse at the Hayward facility. using its own sware-
house employees.
month travel allowance with certain qualifications.
During the negotiations which resulted in this agree-
ment, the Company's nsgotiators proposed that, as part
of any agreement involving compensation for the em-
ployees affected by the relocation, the Union agree to
terminate the existing collective-bargaining agreement on
the date of the relocation. The Union's negotiators re-
jected this proposal and took the position that their con-
tract with the Company would continue to be a valid
one even after the relocation. And, in its letter of Febru-
ary 22 notifying the Company that the Union's member-
ship had ratified the agreement concerning the employ-
ees affected by the relocation, the Union specifically ad-
vised the Company that "the Union is not willing to ter-
minate the collective bargaining agreement prior to its
normal expiration."
On April 2, as indicated supra, Respondent Westwood
relocated its business operation from San Francisco, Cali-
fornia, to Hayward, California. Thereafter, Respondent
Westwood sold substantially the same merchandise and
did business with substantially the same customers and
suppliers and operated with the same number of depart-
ments as it had done prior to the relocation, except, as
described infra, a warehouse was added. Also, all super-
visory and managerial personnel except for the account-
ing manager transferred to Hayward, where they re-
tained the same positions and performed the same duties.
As previously noted, the usual complement of bargaining
unit employees at San Francisco, totaled 22, whereas the
usual complement of unit employees at Hayward totaled
17.
On March 30, the last day on which the San Francisco
facility operated, 18 bargaining unit employees were em-
ployed there. Of the 18, 15 elected to transfer to the
Hayward facility and on April 2 commenced work
there." In addition to the three unit employees who on
March 31 elected not to transfer to Hayward, there were
12 other unit employees who voluntarily terminated their
employment in February and March after the Company
announced that effective April I it intended to relocate
its business to Hayward.7 In order to replace these em-
ployees, the Company during February and March
placed help wanted advertisements in newspapers pub-
lished in the vicinity of the Hayward facility and, as a
result, during February and March hired six employees
who lived in the vicinity of the Hayward facility who
began work in the San Francisco facility with the under-
standing that they would transfer to Hayward. 8 These
six workers were included among the 15 unit employees
who transferred on April 2 to Hayward. Thereafter, the
Company in April, after the relocation, replaced the
e The 18 unit employees at San Franisco on the last day of operation
were as follovss: Batt. Bonifacio, Capacillio, Chavez, Cosino, Dent. El-
liontl. Gardner, Gillette, t.ostica. Loyola. Roxana Rodriguez. Silvio,
Stearns, Swan, Follette, Marcenaro, and Tetreaull. The latter three were
the ones who elected not to transfer to Hayward I also note that Cosino,
who was employed in San Francisco) as a utilityman, was transferrred to
the position of warehouseman when he commenced work at Hayward
7 The 12 were: Bartholomew Bruy. Gallagher, Hockgeiger. Javier,
Leach. McNeal, Medina. Voorhoeve. Yuen. L Rodriguez. and Zapata.
" The six employees and the dates they commenced work in San Fran-
cisco are as follos s Dent, March 5 Elliott,. March 23;: Gardner. Febru-
ary 14: Gillette, March I:; Loyola, March 22; and Swan. February 26
WESTWOOD IMPORT COMPANY, INC. 1219
other employees who had terminated their employment
by hiring four additional unit employees. 9 The usual
complement of unit employees at the Hayward facility
totaled 17: office staff, 4; computer room, 2; foreign
order room, 2; accounting, 4; customer service, ; recep-
tionist, 1; secretary, I; utility, 2. The record reveals that
the Company eliminated the position of utility employee
through a process of attrition, the warehouse employees
apparently taking over the work previously performed
by the utility employees.
On April 23, Respondent Westwood distributed to the
Hayward employees a multipage document which set
forth the Company's policies concerning the employees'
terms and conditions of employment, i.e., wages, hours,
fringe benefits, etc., and notified the employees that "this
is an outline and is certainly open for discussion and
change" and announced that a meeting to discuss the
Company's employment policies would take place April
25.10 On April 24 the Union wrote the Company that its
aforesaid conduct violated the Company's collective-bar-
gaining agreement with the Union and asked the Compa-
ny to stop dealing directly with the employees in viola-
tion of the agreement. And by letter dated May 3, the
Union wrote the Company complaining about the fact
that the Company had not transmitted the employees'
April dues deductions which the Union stated was a vio-
lation of the dues checkoff provision of the collective-
bargaining agreement. Respondent Westwood did not at
that time answer these letters.
On May 8 the Union wrote Respondent Westwood as
follows:
This is to advise you unequivocally that [the Union]
represents a majority of the employees at the
Hayward location.
The Union demands that you recognize Local 3 as
the collective bargaining representative, and that
you acknowledge that the current contract negotiat-
ed at your San Francisco location is in full force
and effect. Accordingly, we request that you
comply with all the terms and conditions of that
agreement.
In conclusion . . . we request an immediate re-
sponse that you will recognize Local 3 as the col-
lective bargaining representative of your employees,
honor the current contract in all respects, and cease
your efforts to set down unilateral terms and condi-
tions of employment.
9 The four employees and the dates they commenced work are as fol-
lows: Camara. April 2; Dismuke, April 2; Johnson, April 3; and Oliver,
April 9 A fifth employee. Labrado. was hired April 23. apparently to
replace Silvio. who terminated his employment April 19
' There is no evidence that when Respondent Westwood relocated
from San Francisco to Hayward that it reduced the unit employees' eco-
nomic benefils, i e wages. fringe benefits, from those established by the
collective-bargaining agreement. The Company's April 23 communication
to the employees describing the employees' terms and conditions of em-
ployment reveals that, although the Company refused to continue to
honor the contract at the Hayward facility. it intended to adhere essen-
tially to the economic terms set forth In the contract
In reply, the Company on May 16 wrote the Union as
follows:
As you know, the Company moved from San
Francisco to Hayward at the beginning of April.
After the Union and company negotiated severance
pay for the San Francisco employees, only a small
number of San Francisco employees accepted em-
ployment at Hayward. Since the Union did not rep-
resent a majority of our employees when we com-
menced operations in Hayward, the Company had
no duty to bargain with the Union regarding terms
and conditions of employment at our Hayward fa-
cility. Furthermore the collective bargaining agree-
ment in San Francisco, which explicitly covers only
the San Francisco facility, does not apply to
Hayward.
In light of the foregoing, we do not recognize
your Union as bargaining representative of our
Hayward employees, and likewise our San Francis-
co collective-bargaining agreement does not apply
in Hayward.
$ * * . *
With regard to your request that we recognize
and bargain with your union on behalf of our
Hayward employees, we decline to do so since we
have a good faith doubt that you in fact represent a
majority of our Hayward employees.
2. Conclusionary findings
(a) The warehouse employees
A question presented for decision connected with Re-
spondent Westwood's obligation to recognize and bar-
gain with the Union at the Hayward location is whether
the warehouse employees at Hayward constitute an ac-
cretion to the unit of employees represented by the
Union. The Union represented all of the Company's em-
ployees at San Francisco except for the salespersons.
Following the relocation to Hayward, this unit usually
consisted of approximately 15 clerical and 2 utility em-
ployees. The salespersons were apparently not represent-
ed by a union. The Company at San Francisco did not
employ warehouse employees inasmuch as it did not
have a warehouse, but instead used a public warehouse
whose employees received and shipped its merchandise.
The question presented for decision in this section is
whether, when Respondent Westwood commenced to
operate its warehouse at the Hayward facility, the five
warehouse employees became an accretion to the bar-
gaining unit represented by the Union. The relevant evi-
dence and an evaluation of this evidence follows.
The Company did not did not maintain a warehouse at
its San Francisco facility but used a public warehouse in
Oakland, California. The Hayward facility contains a
warehouse having 53,000 square feet of floor space. In
the last week of February the Company transferred all of
its inventory from the public warehouse to the ware-
house located in the Hayward facility and on or about
February 28 commenced to operate the Hayward ware-
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
house using its own employees. Respondent Westwood
hired a warehouse manager, two warehousemen, and a
warehouse clerical, all of whom started working at the
Hayward facility by March 1. In addition, one of the
unit employees employed in San Francisco, utility em-
ployee Cosino, upon transferring to the Hayward facility
on April 2, was permanently assigned to the job of ware-
houseman. Thereafter, on April 19 a fourth warehouse-
man was hired. In short, Respondent Westwood normal-
ly employed four warehousemen and one warehouse
clerical at the Hayward facility.
The warehouse is a part of a building which contains
all of the other departments operated by the Company
which were relocated from San Francisco to Hayward.
All employees employed at this facility, including the
warehouse employees, use the same parking lot, the same
lunchroom, punch the same timeclock, are paid on the
same day and are covered by the same company policies,
and enjoy the same economic fringe benefits, i.e., health
insurance, vacations, holidays, etc., and work the same
work shift. However, the warehouse employees are paid
by the hour, whereas the other employees are salaried.
The other employees have a well defined wage scale ac-
cording to their job classification, whereas the ware-
house employees do not. But the warehouse clerical's
pay scale is the same as the pay scale of the other cleri-
cals. The record is silent as to a comparison between the
wages of the warehousemen and the wages of the unit
employees.
The warehouse employees are supervised by a ware-
house manager who is subordinate to the Company's op-
erations manager. The utility employees are likewise su-
pervised by the warehouse manager, but the other unit
employees have their own immediate supervisors who
are subordinate to the operations manager.
The warehousemen receive tne Company's merchan-
dise which they stack in the warehouse. They pick up
merchandise from the floor of the warehouse which they
prepare for shipment to customers. They also pick up
and deliver the Company's mail and keep the sample
storeroom clean and stacked with sample merchandise
and prepare this merchandise to be mailed to sales repre-
sentatives and trade shows. Of the aforesaid duties per-
formed by the warehousemen, only the part which deals
with the mail and the sample storeroom were performed
by unit employees at San Francisco. The utility workers
performed this work and continued to do it after the re-
location to Hayward. Of the three utility workers em-
ployed at San Francisco, one, Cosino, was permanently
reassigned to the position of warehouseman immediately
upon his transfer to Hayward. The other two utility
workers, Lostica and Capacillo, continued to work as
utility workers at Hayward for about 3 months, at which
time, when they terminated their employment, they were
not replaced and warehousemen performed their duties.
The record establishes that other than the transfer of
utility employee Cosino to the position of warehousemen
there were no transfers or interchanges between the
warehouse employees and other employees employed at
Hayward. And, on the average, the work of the ware-
housemen brought them into contact with other employ-
ees only 5 percent of their worktime. The warehouse
clerical who handles the bills of lading connected with
the shipment of merchandise spends from 20 to 25 per-
cent of her worktime performing duties which bring her
into contact with other clerical employees. However, the
work station of the warehouse clerical is located in the
warehouse and she only works in that area.
"An accretion is, by definition merely the addition of
new employees to an already existing group." N.L.R.B.
v. Food Employers Council, Inc.., and Retail Clerks Union,
Local 770, 399 F.2d 501, 502 (9th Cir. 1968). Employees
so added to an existing bargaining unit are regarded as a
part of that unit. See Westinghouse Electric Corp. v.
N.L.R.B., 440 F.2d 7 (2d Cir. 1971). In deciding whether
a new group of employees is an accretion to an existing
bargaining unit, the Board not only considers such fac-
tors as functional integration, level of management con-
trol, similarity of working conditions, bargaining history,
employee interchange, job skills, and physical separate-
ness but also gives special weight to the interests of the
unrepresented employees in exercising their own right to
self-organization. See Food Employers Council, Inc.., supra
at 501, 504. Hence, even though an overall bargaining
unit may be appropriate if the issue is raised in the con-
text of a petition for a representation election, the Board
will not, "under the guise of accretion, compel a group
of employees, who may constitute a separate appropriate
unit, to be included in an overall unit without allowing
those employees the opportunity of expressing their pref-
erence in a secret-ballot election or by some other evi-
dence that they wish to authorize the union to represent
them." Melbet Jewelry Co.. Inc., and I.D.S.-Orchard Park,
Inc., 180 NLRB 107, 110 (1969). And, "when the rele-
vant considerations are not free from doubt," the Board
and courts are in agreement that "it would seem more
satisfactory to resolve such close questions through the
election process rather than seeking an addition of the
new employees by a finding of accretion" because "as a
general rule, the accretion doctrine should be applied re-
strictively since it deprives the new employees of the op-
portunity to express their desires regarding membership
in the existing unit." Westinghouse Electric Corp. v.
N.L.R.B., 440 F.2d 7, 11 and cases cited therein.
Guided by these principles, I have considered the evi-
dence which has been set forth in detail previously and
conclude that the warehouse employees employed at the
Hayward facility do not constitute an accretion to the
bargaining unit represented by the Union. In reaching
this conclusion, I was influenced by the following con-
siderations taken in their totality:
1. The warehouse department is a totally new addition
to the Company's operation and not an expansion of a
preexisting department whose employees were represent-
ed by the Union.
2. Although located in the same building as the depart-
ments in which the unit employees work, the warehouse
is located separate and apart from the other departments,
and the unit employees work in areas which are phys-
ically segregated from the warehouse. This is true even
for the utility employees who work in the sample store-
room.
NWESI'OI ) IMPORT C()MPANY, INC. 1221
3. All of the warehouse employees are under the sole
immediate and exclusive supervision of the warehouse
manager who has no authority over unit employees,
other than the utility employees.
4. The warehousemen perform a different kind of
work than the unit employees which requires different
skills. The warehousemen perform the customary ware-
house duties of storing incoming shipments of merchan-
dise, filling orders and preparing them for shipment,
whereas the unit employees, other than the utility em-
ployees, perform clerical work.
5. The two utility employees who were commonly su-
pervised with the warehouse employees: did only a limit-
ed amount of the type of work performed by the ware-
house employees, namely, they picked up and delivered
mail and shipped and received sample merchandise
stored in the sample room and kept this room clean.
They performed no work in the warehouse and, as de-
scribed infra, the contract between the utility employees
and warehousemen was de minimus. Also, the utility em-
ployees were salaried like the other unit employees,
whereas the warehouse employees were hourly paid. It is
also significant that, when the Company relocated from
San Francisco to Hayward and established its warehouse
department, it apparently intended to eliminate the posi-
tion of utility employees and have their work involving
the samples and mail taken over by the warehousemen.
In fact, one of the three utility employees employed in
San Francisco was transferred to Hayward as a ware-
houseman and the remaining two were not replaced
when they terminated their employment.
6. There is no interchange of employees either on a
temporary or permanent basis between the warehouse
and the other departments. And, other than the perma-
nent transfer of one utility employee into the warehouse
at the time of the relocation, there have been no transfers
between the warehouse and the other areas or vice
versa.
7. The contact between the warehousemen and the
unit employees, including the utility employees, is de
minimus. The warehousemen are in contact with unit
employees only 5 percent of their working time.
8. There is no evidence of functional integration be-
tween the warehousemen and the unit employees. The
warehousemen are primarily engaged in the receiving
and shipping of merchandise without assistance from the
other employees. The work of the warehousemen is
functionally separated from the work of the other em-
ployees and is performed in a well defined work area
and consists of typical warehouse functions. The fact
that the warehousemen are only in contact with unit em-
ployees 5 percent of their working time conclusively
demonstrates the lack of any substantial interrelation be-
tween the work functions of the warehousemen and that
of the other employees.
9. There is a significant distinction between the ware-
housemen and the unit employees with respect to their
wages inasmuch as the warehousemen are paid by the
hour and do not have a defined pay scale, whereas the
unit employees' including the utility employees, are sala-
ried with well defined pay scales.''
10. Although the pay scale of the warehouse clerical is
the same as the clerical employees employed in the bar-
gaining unit and she has a greater amount of contact
with the unit employees than the warehousemen, 2 she is
paid by the hour like the warehousemen, is supervised by
the warehouse manager, and her work station is in the
warehouse where she works in close proximity to the
warehousemen and her duties are functionally related to
the work performed by the warehousemen.
On the basis of the foregoing, I find that the warehou-
semen and the warehouse clerical employed at the
Hayward facility are not an accretion to the unit of em-
ployees represented by the Union. I recognize that the
utility employees performed some of the same work as
the warehousmen and shared common supervision with
the warehouse employees and that the unit employees
and the warehouse employees have common ultimate su-
pervision and use the same parking lot and lunchroom,
punch the same timeclock, are paid on the same day, are
covered by the same employment policies and fringe
benefits, and work the same shift. Nevertheless, even as-
suming these factors tend to establish that an overall bar-
gaining unit of employees, including the warehouse em-
ployees, would constitute an appropriate unit for the pur-
pose of a representation election, I am of the opinion that
because "the accretion doctrine should be applied restric-
tively,""' the several factors described, supra, militate
against my finding that the warehouse employees consti-
tute an accretion to the unit of employees represented by
the Union.
(b) Respondent Weswoods refusal to bargain
As described in detail above, the Union and Respond-
ent Westwood were parties to a collective-bargaining
agreement covering a unit of the Company's employees
employed at its facility in San Francisco, California. This
agreement was not scheduled to terminate until Decem-
ber 30, 1979. During the term of the agreement
Westwood relocated its business from San Francisco to
Hayward, California. The evidence establishes and, in its
answer to the consolidated complaint, Respondent
Westwood admits that in April and continuing thereafter
it refused to recognize the Union as the collective-bar-
gaining representative of the employees at the Hayward
facility, withdrew recognition from the Union as the bar-
gaining representative of the Hayward employees, and
refused the Union's request that Westwood honor the
collective-bargaining agreement at the Hayward facility.
I In April the Company distributed a multipage pamphlet to the em-
plioyees describing the Company's employment policies and benefits
Among oither things the pamphlet listed the wage rates and wage pohclc
which applied to the unit employees but failed to mention the wage rate,
and policy concerning the warehouse employees This indicates that the
Company regarded the warehouse employees, like the salespersons who
"were also not referred to in this pamphlet, as a different kind of employee
than those employed in the bargaining unit
" The arehouse clerical spent between 20 and 25 percent of her
working time performing duties which brought her into contact with unit
clerical employees
': ii inghouse Electric Corp., ipra. 440 F 2d at I
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel, as alleged in the consolidated com-
plaint, contends that, by engaging in this conduct, Re-
spondent Westwood refused to bargain within the mean-
ing of Section 8(a)(5) of the Act. Respondent Westwood
argues that it was not obligated to honor the terms of the
collective-bargaining agreement at the Hayward facility
because the terms of that agreement limit its application
to the San Francisco facility and that it was not other-
wise obligated to recognize and bargain with the Union
at the Hayward facility because the Union did not repre-
sent a majority of the unit employees and Westwood had
a good-faith doubt of the Union's majority status.
A union's continuing majority status is not generally
subject to challenge during the term of an existing col-
lective-bargaining agreement, except as provided by the
Board's "contract bar" rules. General Cable Corp., 139
NLRB 1123 (1962); Hexton Furniture Co., 111 NLRB
342, 343-344 (1955); Pioneer Inn Associates v. N.L.R.B.,
578 F.2d 835, 838-839 (9th Cir. 1978); see also N.L.R.B.
v. The William J. Burns International Detective Agency,
Inc., 406 U.S. 272, 290 (1972). Under these rules, the
Board will not ordinarily entertain a challenge to an in-
cumbent union's majority status during the terms of an
agreement of 3 years' duration or less, unless the chal-
lenge is made during an "open period" of 60 to 90 days
prior to the expiration date of the agreement. Leonard
Wholesale Meats, Inc., 136 NLRB 1000, 1001 (1962);
DeLuxe Metal Furniture Company, 121 NLRB 995, 999-
1002 (1958). The reason for the Board's contract bar rule
is to promote the stability of established bargaining rela-
tionships, while at the same time permitting employees
freedom to choose and change their bargaining repre-
sentative. General Cable Corp., supra, 139 NLRB at
1125-26; Leedom v. International Brotherhood of Electrical
Workers Local Union No. 108, AFL-CIO [General Cable
Corp.], 278 F.2d 237, 242 (D.C. Cir. 1959).
While the usual contract bar case involves a represen-
tation petition for a new election filed by employees or
an employer, the rules are equally applicable to situations
where the employer withdraws recognition from an in-
cumbent union during the term of an existing collective-
bargaining agreement. Hexton Furniture Co.. supra, 111
NLRB at 344. Accord: Pioneer Inn Associates, supra, 578
F.2d at 838; N.L.R.B. v. Markus Trucking Co., 286 F.2d
583, 592-593 (2d Cir. 1968). As the Board explained in
Hexton Furniture Co., supra, to hold otherwise would
have "the anomalous result of an employer being permit-
ted unilaterally to redetermine his employees' bargaining
representative at a time when the Board would refuse to
make such redetermination because the time is inappro-
priate for such action." Since under the Board's contract
bar policies, employees and employers would not be per-
mitted to petition for a new secret-ballot election, it
would ill serve the ends of industrial peace and stability
to permit an employer to withdraw recognition and re-
pudiate the terms of a collective-bargaining agreement
based on a good-faith belief that the Union has lost its
support among the employees. As the Supreme Court
has stated in a related context, involving the Board's cer-
tification year policy, "[to] allow employers to rely on
employees' rights in refusing to bargain with the formal-
ly designated union is not conducive to that end [of in-
dustrial peace and stability], it is inimical to it." Brooks v.
N.L.R.B., 348 U.S. 96, 103. Accord: Marcus Trucking
Co.. supra, 286 F.2d at 593; N.L.R.B. v. Lee Office Equip-
ment, 572 F.2d 704, 707 (9th Cir. 1978).
Briefly stated, as explained in detail supra, there is a
conclusive presumption of a union's majority status
during the term of a collective-bargaining agreement in-
asmuch as a question concerning the union's majority
status may not be raised under the Board's contract-bar
rules and, because of this, an employer violates Section
8(a)(5) and (1) of the Act by withdrawing recognition
from a union during the term of a collective-bargaining
agreement and refusing to honor the terms of that agree-
ment even though the employer may have a good-faith
doubt about the union's majority status or even though
the union no longer has the support of a majority of the
employees it represents. The question posed in the in-
stant case is whether the geographical relocation of Re-
spondent Westwood's San Francisco facility to Hayward
during the term of the collective-bargaining agreement
between Westwood and the Union allowed Westwood to
question the Union's majority status and to refuse to
honor the agreement. In this regard the law is settled
that, unless the collective-bargaining agreement by its
terms is not applicable to the relocated facility, "a mere
relocation of operations accompanied by a transfer of a
considerable proportion of the employees to another
plant, without any accompanying change in the charac-
ter of the jobs and the functions of the employees in the
contract unit, does not remove a contract as a bar." (Em-
phasis supplied.) General Extrusion Company, Inc., et al.,
121 NLRB 1165, 1167-68 (1958).
I am of the opinion that the relocation of Respondent
Westwood's business from San Francisco to Hayward
did not result in a significant change in the character of
the jobs and the functions of the employees in the con-
tract unit. The relocated operation was virtually identical
to its predecessor in every respect relevant to the em-
ployees' interest in collective bargaining. There was no
change in ownership. The contractual unit's job structure
remained intact at Hayward; job skills and requirements
for the employees in the contractual unit remained un-
changed; 14 supervisory and managerial personnel were
retained; and the contractual unit remained appropriate
in all other respects, l nor was there a substantial change
in the size of the unit. 16
Likewise, I am of the opinion that the relocation was
accompanied by the transfer of a considerable proportion
of the unit employees from San Francisco to Hayward.
The parties stipulated that usually there were 22 unit em-
ployees employed at San Francisco and 17 at the
Hayward facility. Of the 18 unit employees who were
employed at the San Francisco facility on March 31, the
'4 The phasing out of the utility employee classification by the process
of attrition did not constitute the kind of a change which significantly
changed the character of the jobs and the functions of the employees in
the unit.
1 I note that the five warehouse employees, as I have found infra, are
not an accretion to the contract unit.
16 The parties stipulated that the usual composition of the contract unit
in San Francisco totaled 22 employees, whereas ill Hayward it totaled 17
employees.
WISTWOOD()() IMPO()RT COMPANY, INC. 1 223
day it closed, 15 transferred to the Hayward facility. of
whom 14 were employed by the Company in Hayward
in the bargaining unit. In addition to the 14 transferees,
the Company in April hired four more employees to
work in the unit at Hayward and I of the 14 employees
who transferred terminated his employment. Thus, by
the end of April, when the Hayward facility was fully
operational, of the 18 unit employees employed there, 13
were former San Francisco employees. The number of
former San Francisco employees constitutes a consider-
able proportion of the employees, whether they be com-
pared to the number formerly employed at San Francis-
co or the number employed at Hayward. The fact that
six of the former San Francisco employees who were
employed at Hayward lived in the vicinity of the
Hayward facility and had worked at the San Francisco
facility only from I to 6 weeks with the expectation that
they would work at the Hayward facility when the San
Francisco facility closed, does not require a different
result, (The Arrow Company. ,4 Division of Cluettr. Peabody
& Co., Inc., 147 NLRB 829, 830, 831 (1964)), particularly
since the San Francisco and Hayward facilities are in the
same "labor area;" the two facilities are located in "an
economically integrated [geographic area] within which
workers may readily change jobs without changing their
place of residence." U.S. Department of Labor Employ-
ment and Training Administration, "Directory of Impor-
tant Labor Areas," at pages I and 5 (1978).
Upon the foregoing, I find that the relocation of Re-
spondent Westwood's San Francisco facility to Hayward
did not significantly change the character of the jobs or
the functions of the employees in the contractual bar-
gaining unit and was accompanied by the transfer of a
considerable proportion of the unit employees; therefore,
I further find that the collective-bargaining agreement
between the Union and Respondent Westwood pre-
cluded Respondent Westwood from questioning the
Union's majority status at the Hayward facility, provided
the Union had not agreed that the collective-bargaining
agreement was not applicable at the Hayward facility.
Respondent Westwood takes the position that it did
not impermissibly repudiate its collective-bargaining
agreement with the Union at midterm and was privileged
to question the Union's majority status because the col-
lective-bargaining agreement applies only to the San
Francisco location. Respondent Westwood relies on the
language in the recognition clause of the collective-bar-
gaining agreement which states that "the Company rec-
ognizes the Union as the sole collective bargaining agent
. . .for all employees of [Respondent Westwood] at its
facility located at 290 Division Street, San Francisco,
94103." Westwood argues that this constitutes a clear
waiver by the Union and limits the application of the
agreement to only the San Francisco facility. I have con-
sidered the specific language of the recognition clause,
its relation to the agreement as a whole, and the history
pertaining to the inclusion of the recognition language in
tha contract, and reject Respondent Westwood's conten-
tion for the following reasons:
I. The language contained in the contractual recogni-
tion clause is not a geographical limitation, but merely
the parties' descriptive recitation of the physical location
at the time of the negotiations. See Los Angeles Marine
Hardware Co. v. N.L.R.B., 602 F.2d 1302, 1306 (9th Cir.
1978)(holding that language in the preamble of a con-
tract which states that the contract was entered into by
the parties "on behalf of [the employers'] operations lo-
cated at San Pedro, California and vicinity," does not
constitute a geographical limitation, "but merely the par-
ties' descriptive recitation of the physical location of the
facilities at the time of the negotiations"); see also Oddit,
v. Ross Gear and Tool Company, 305 F.2d 143, 148-149
(6th Cir. 1969)(holding that contractual language which
provided that "the Company recognizes the union as the
exclusive representative of its employees in its plant or
plants located in that portion of the greater Detroit area
which is located within the city limits of Detroit" consti-
tutes a geographical limitation on the application of the
contract in question. The court, however, indicated that
if, like the instant case, "there was a specific reference to
one plant only, the address of which was specifically
given," the court would be disposed to conclude that the
recognition clause was merely the parties' descriptive
recitation of the physical location at the time of the ne-
gotiations. Id. at 149.)
2. The agreement's effectiveness is not limited express-
ly to the San Francisco facility, nor is there extrinsic evi-
dence that the parties intended such a limitation.
3. The wording of the contractual recognition clause
was taken in haec verba from the Board's Certification of
Representative issued September 2, 1976. The language
in the Board's certification was taken from the election
agreement entered into by the Union and Respondent
Westwood which described the bargaining unit for pur-
poses of defining voter eligibility. 7 Inasmuch as the
contractual language relied on by Respondent Westwood
to establish that there was a clear waiver by the Union.
which limited the application of the contract to the San
Francisco facility, was initially used by the parties to
merely physically describe the bargaining unit for the
purpose of defining voter eligibility, I will not conclude
that in using this same language in the contractual recog-
nition clause, the parties did so for any reason other than
to merely describe the physical location of the facility
covered by the contract at the time of the negotiations.
It is for all of the foregoing reasons that I reject Re-
spondent Westwood's contention that the language con-
tained in the contractual recognition clause is a clear
waiver by the Union and limits the geographical applica-
tion of the agreement to the San Francisco facility.
Therefore, for the reasons set forth supra, I find that the
collective-bargaining agreement between the Union and
Westwood precluded Westwood from questioning the
Union's majority status at the Hayward facility'8 and for
A Board certification issued to a union which has won a Board-con-
ducted representation election is not limited to the location where the
election was conducted but may he carried over to a new location See
Massachuserrts Machine Stamping,. Inc. 231 NLRB 801 (1977). enforce-
ment denied on other grounds 578 F2d 15 (st Cir 1978)
1' In siewv of this conclusion I have not considered Respondent
Westwood's argument that it was permissible for it to withdraw recogni-
tion from the Union and to cease giving effect to the collectie-hargain-
ing agreement because the Union did not in fact represent a majorit of
Con tin ued
1224 )DECISIONS OF NATIONAL LA13(OR RELATIONS ()ARD
this reason find that Respondent Westwood violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to recognize
the Union as the collective-bargaining representative of
the unit employees at the Hayward facility, withdrawing
recognition from the Union as the bargaining representa-
tive of these employees, and by repudiating its collective-
bargaining agreement with the Union.1 9
In concluding that Respondent Westwood has refused
to bargain with the Union within the meaning of Section
8(a)(5) of the Act, I have considered the fact that the
Union's bargaining demand was ambiguous in that it was
worded in terms of the Company's "employees" which
include the warehouse employees who are not in the bar-
gaining unit. This does not, however, justify Respondent
Westwood's refusal to bargain, inasmuch as the Union's
request for recognition included at least all of the em-
ployees in the certified unit, and the Company did not
inform the Union that a basis for its refusal to continue
recognizing the Union in the certified unit was because
the Union was demanding that the warehouse employees
be included in this unit. Thus, it is highly speculative
whether the Union, in the face of such a specific refusal
by Respondent Westwood, would have insisted on the
inclusion of the warehouse employees in the certified
unit, rather than accept continued recognition in the cer-
tified unit and use the procedures of the Board to deter-
mine whether the warehouse employees were an accre-
tion to the bargaining unit. Under the circumstances, I
am persuaded that "the proper course for [Respondent
Westwood] was to refuse to bargain with respect to
those employees whose unit status is disputed, not to
wholly refuse to bargain." Texaco, Inc. v. N.L.R.B., 436
F.2d 520, 523 (5th Cir. 1970).
B. Responent Westwood Sells Its Business to
Respondent Gamut Which Refuses To Recognize and
Bargain With the Union
i. The evidence
On July 20, Respondent Westwood ceased operating
the Hayward facility. On that date Respondent Gamut
purchased the assets, inventory, receivables and office
furniture of Responden' Westwood and without any in-
the employees and because the Company entertained a good-faith doubt
of the Union's majority status. I note, however, that, in connection with
Respondent Westwood's argument that the Union did not in fact repre-
sent a majority of the unit employees. I excluded certain testimonial and
documentary evidence through which the Company sought to establish
that employees were not members of the Union and that employees, if
called as witnesses, would testify that they did not want to be represent-
ed by the Union. I have carefully reconsidered this ruling pursuant to Re-
spondent Westwo,)d's request in its post-hearing brief and, after review-
ing the applicable authorities, remain convinced that I correctly excluded
such evidence See Re/ired Personv Pharmacy v N.L.RB. 519 F2d 486,
490. 491 492 12d Cir. 1974). and cases cited therein.
I' The cases relied upon by Respondent Westwood to justify its with-
drawal of recognition from the Union: The Pierce Governor Company,
Inc.. 164 NLRB 97. enfd sub nom United Aulo Workers v. N.VLR.B., 3q4
F.2d 757 (DC Cir 1968), and its progeny; Fraser & Johnston Co.
NL R. B.. 469 F.2d 1259 (9th Cir. 1972), and its progeny; and L R. B
Mfassachusetts Machine d Stamping. Inc.. 578 F.2d 15 (Ist Cir 1978).
differ significantly from the instant case because in those cases the reloca-
lion of the facility did not take place during the term of an existing col-
lective-bargaining agreement which precluded the employers in those
cases from raising a question about the union's majority status
tcrruption took over the operation of the business. 2( Re-
spondent Gamut engaged in the same business as Re-
spondent Westwood at the same facility, the Hayward
facility, and sold substantially the same merchandise
which it purchased from substantially the same suppliers
as Respondent Westwood, and sold the merchandise to
substantially the same customers as Respondent
Westwood, and employed all of the supervisory and non-
supervisory employees employed by Respondent
Westwood at the time of the sale, except for two per-
sons.
Respondent Gamut, prior to the July 20 sale, inter-
viewed the employees of Respondent Westwood and,
during these interviews, did not mention whether there
would be changes in the employees' wages, hours, or
other terms and conditions of employment when Re-
spondent Gamut took over the business. Nor does the
record establish that a representative of Respondent
Gamut at any time ever indicated to the employees that
their terms and conditions of employment would be
changed when Respondent Gamut took over the busi-
ness. However, after taking over the business, Respond-
ent Gamut reduced the number of paid holidays previ-
ously enjoyed by the employees. Also, the seniority of
the employees employed by Respondent Gamut who had
worked for Respondent Westwood commenced as of the
day Respondent Gamut took over the operation. Like-
wise, the employees were not given credit for the
number of days of sick leave they had been allowed to
accrue while working for Respondent Westwood. Final-
ly, the record reveals that after taking over the business
Respondent Gamut increased the wages of certain unit
employees.
The record establishes that, prior to Respondent
Gamut taking over the business from Respondent
Westwood, the officials of Respondent Westwood in-
formed the president of Respondent Gamut about the
dispute between Respondent Westwood and the Union
concerning Respondent Westwood's obligation to recog-
nize the Union as the representative of the employees at
the Hayward facility. Likewise, the record reveals that
the management of Respondent Gamut, prior to taking
over the operation of the business, knew that a complaint
had issued in Case 32-CA-1813 contending that Re-
spondent Westwood was obligated to recognize and bar-
gain with the Union at the Hayward facility.
On August 22, Union Representative Olson wrote
Harry Hovan, Respondent Gamut's vice president and
controller, and asked that Respondent Gamut recognize
the Union as the collective-bargaining representative of
its Hayward employees and meet with the Union for the
purpose of collective bargaining. Olson asked that the
Company contact the Union to schedule a negotiation
meeting. The letter was not answered.
"' Respondent Wesitslod actually sold the assets of the business to
GCiorge-Good Corporation, which transferred the assets to Respondent
G(amit, which is a wholly owned subsidiary of the George-Good Corpo-
ratioi. The record eatablishes that Respondent Gamut and the George-
Good Corporation constitute one employer for purposes of the Act.
WESTWOOD IMPORT COMPANY, INC. 1225
2. Conclusions
The complaint alleges that Respondent Gamut is a suc-
cessor employer to Respondent Westwood and violated
Section 8(a)(5) and (1) of the Act by refusing to recog-
nize and bargain with the Union.
It is settled that the purchaser of a business must rec-
ognize and bargain with the union which represented its
predecessor's employees if a majority of the purchaser's
work force is composed of the predecessor's employees
and if the essential nature of the business continues fol-
lowing the transfer. N.L. R. B. v. Burns International Secu-
rity Services, Inc., 406 U.S. 272, 281; N.L.R.B. v.
Denham, 469 F.2d 239, 243 (9th Cir. 1972), vacated on
other grounds 411 U.S. 945 (1973), reaffirmed 218 NLRB
30 (1975). The bargaining obligation of a "successor em-
ployer" derives both from the specific mandate of Sec-
tions 8(a)(5) and 9(a) of the Act that an employer must
bargain with the "[representatives designated] or selected
for the purpose of collective bargaining by the majority
of the employees in a unit appropriate for such purposes"
and from the general acknowledgment that a mere
change in ownership does not destroy the presumption
of continuing employee support for a certified or volun-
tarily recognized union. See N.L.R.B. v. Burns Interna-
tional Security Services, Inc., 406 U.S. at 277-279:
N.L.R.B. v. Denham, supra, 469 F.2d at 243-244.
In the instant case the complement of employees at the
Hayward facility remained virtually the same after Re-
spondent Gamut took over the business. And when
Gamut commenced to operate the business on July 20, it
employed all but two of the unit employees who had
worked for the predecessor employer, Respondent
Westwood, and retained all of the supervisory and man-
agerial personnel except for the operating manager, who
was terminated by Westwood several days prior to the
sale. Clearly, there was a continuity of bargaining unit
employees.
Similarly, the record shows that there was a continuity
of business operations and organization of job functions,
after Gamut took over the business, so that the bargain-
ing unit remained a viable one. See William J. Burns In-
ternational Detective Agency v. N.L.R.B., 441 F.2d 911,
914-915 (D.C. Cir. 1971), enfd. in pertinent part 406 U.S.
272, 280, fn. 4 (1972). Thus, when Respondent Gamut
[took] possession of the business on July 20 it used the
identical facilities as its predecessor, continued in the
same business, employed the same size work force as had
worked for its predecessor, who continued to work in
their same job classifications and exercise the same skills
as previously. Plainly, there was a continuity of the em-
ploying enterprise.
Based upon the foregoing and the fact that the prede-
cessor employer, Respondent Westwood, was obligated
to recognize and bargain with the Union at the time of
the transfer of ownership, I find that Respondent Gamut
is a successor employer for purposes of Sections 8(a)(5)
and 9(a) of the Act and, as such, was obligated to recog-
nize and bargain with the Union as the bargaining repre-
sentative of the employees in the appropriate bargaining
unit. Specifically, I find that Respondent Gamut became
a successor to Westwood on and after July 20, when
Gamut employed all but two of the unit employees who
had worked for Westwood and continued Westwood's
operations. I further conclude that as of July 20, Re-
spondent Gamut as a successor employer was legally ob-
ligated to recognize and bargain with the Union as the
unit employees' collective-bargaining representative and
violated Section 8(a)(5) and (1) of the Act on or about
August 22 when it failed to answer the Union's request
for recognition and bargaining. 2 '
I have concluded, supra, that Respondent Gamut suc-
ceeded to Respondent Westwood's collective-bargaining
obligation on July 20 when it took over the business and
selected as its work force all but two of Westwood's unit
employees to perform the same tasks at the same place
they had worked in the past. Likewise, the record re-
veals that the former employees of Westwood who were
employed by Gamut constituted the full complement of
Gamut's employees and that prior to employing these
employees on July 20, Gamut had interviewed them and
did not indicate to them that their terms and conditions
of employmant would be changed when Gamut assumed
control over the business. In addition, the record reveals
that when Gamut purchased Westwood's business it
knew that the Union and the Board's General Counsel
were taking the position that Westwood was obligated to
recognize and bargain with the Union as the bargaining
representative of the unit employees and that the Board's
General Counsel had issued a complaint in Case 32-CA-
1813 alleging that Respondent Westwood's refusal to
recognize the Union violated Section 8(a)(5) and (I) of
the Act. Nevertheless, Gamut, when it commenced to
operate the business on April 2, unilaterally, without bar-
gaining with the Union, changed the unit employees'
terms and conditions of employment as follows: (1) re-
duced the number of paid holidays granted to employees;
(2) refused to credit employees with sick leave they had
accrued while working for Westwood; (3) refused to
credit employees with employment seniority from the
date they began working for Westwood; (4) increased
the wages of several employees. I conclude that, by en-
" A successor employer is obligated to bargain with a union hich is
the exclusive bargaining representative of the employees acquired from
the predecessor unless the successor demonstrates either that the union in
fact no longer represented a majority of the employees on the date of the
refusal to bargain or that his refusal to bargain was grounded on a good-
faith doubt of the union's majority status. L.R.B. v. Wayne Convalescent
Center. Inc.. 465 F.2d 1039, 1043 (6th Cir 1972) Here, Respondent
Gamut did not justify its refusal to recognize the Union on a good-faith
doubt of the Union's majority status. Thus, Gamut remained silent when
the Union requested recognition and no one testified on behalf of Gamut
during this proceeding that its reason for refusing to recognize the Union
ssas predicated on a good-faith doubt of the Union's majority status. Re-
garding the question of whether the Union at the time of the change in
ownership represented a majority of the unit employees the record does
not rebut the presumption of the Union's majority status Moreover,
Gamut may not rely upon such a defense where, as here, the predecessor
emploser's unlawful refusal to bargain would tend to produce employee
disaffection from the Union and Gamut purchased the business from the
predecessor with full knowledge of its unfair labor practices Under these
circumstances. Respondent Gamut, separates and apart from violating
Section 8(a)( 5 ) and (I) of the Act itself, by its refusal to bargain with the
Union, was responsible for remedying its predecessor's unlawful refusal
to bargain See Ponn Distributing Inc and Cott Corporation. 232 NLRB
312 1977)
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaging in the aforesaid unilateral conduct, Respondent
Gamut violated Section 8(a)(5) and (1) of the Act.22
I realize that "[a] successor employer is ordinarily free
to set initial terms on which it will hire the employees of
a predecessor." N.L.R.B v. Burns International Security
Services, Inc., 406 U.S. 272, 294 (1972). However, here,
the aforesaid unilateral changes did not constitute initial
terms of employment, for there is no evidence that Re-
spondent Gamut announced these changes to the em-
ployees or anyone else prior to the time that the prede-
cessor's employees actually became Gamut's employees
on April 2. To the contrary, the record reveals that
when the employees of the predecessor were interviewed
by Gamut, prior to being employed, they were not ad-
vised that Gamut intended to change any of their terms
and conditions of employment. Thus, where, as here, the
record contains "nothing to indicate that the employees
were aware of the proposed changes" when they were
offered continued employment or when they actually
began work for the successor, "these changes cannot be
considered as initial terms of rehiring under Burns."
Spitzer Akron, Inc. v. N.L.R.B., 540 F.2d 841, 845 (6th
Cir. 1976); see also N.L.R.B. v. Bachrodt Chevrolet Co.,
468 F.2d 963, 969-970 (7th Cir. 1972); and Charles Star-
buck and Diane Starbuck d/b/a Starco Farmers Market,
237 NLRB 373 (1978), wherein the Board stated that a
successor may not make unilateral changes without bar-
gaining with the union "where the successor failed to
clearly announce its intent to alter terms and conditions
prior to offering employment to incumbent employees,"
citing Spruce Up Corporation, 209 NLRB 194, 195 (1974).
C. Respondents Refuse To Furnish the Union With
Information About the Sale of the Employing
Enterprise
1. The evidence
As described supra, on July 20, Respondent Westwood
ceased operating the Hayward facility and sold the busi-
ness to Respondent Gamut which on that date took over
the operation of the business. Harry Hovan held the po-
sition of vice president and controller for both compa-
nies.
In July, shortly before the sale, Union Representative
Reeva Olson told Hovan that the Union understood the
Company was being sold and the employees were being
reinterviewed. Olson asked why the employees were
being reinterviewed and whether the Company was in
fact being sold and, if so, to furnish the Union with
"some information about the sale." Hovan replied, he
had no duty to provide such information because the sale
of the Company was none of the Union's business.
On July 25, after the sale and after Respondent Gamut
commenced to operate the business, Olson wrote Hovan
as follows:
22 In concluding that Respondent Gamut's unilateral conduct violated
Section 8(a)(5) I have taken into account the fact that the consolidated
complaint in this case contained no allegation of this charge Nonetheless,
I have considered this issue because the question is closely related to the
allegations against Gamut contained in the complaint and the matter "sas
fully and fairly litigated. N.L.R.R. v Olympic Medical Corp., 608 F.2d
762 (9;h Cir 1979)
This is to confirm that when I called you prior to
July 19, you refused to give me any information
whatsoever concerning the purported change of
ownership of Westwood or the requirement that all
Westwood employees reapply for employment and
be interviewed again.
As the collective bargaining representative, the
Union contends we have an absolute right to this in-
formation. We also contend that Westwood has no
right to request that employees reapply or be inter-
viewed for employment again.
We are advised that you have unilaterally can-
celled all accrued seniority, sick leave and vacation
rights.
We are also advised that you have summarily ter-
minated Liberato A. Capacillo and Elizier Cosino
without just cause.
The Union considers all these actions in gross
violation of the entire collective bargaining agree-
ment and the National Labor Relations Act.
We request that all accrued rights be restored to
all employees, that the discharged employees be re-
instated immediately with full back pay and bene-
fits, and that all employees be otherwise made
whole.
The letter was transmitted by Hovan to the president of
Respondent Gamut who did not answer the letter.
2. Conclusions
As described above, Respondents refused to furnish
the Union with information about the sale of the busi-
ness, even though Respondent Westwood was obligated
to recognize the Union as the employees' bargaining rep-
resentative and Respondent Gamut, after the sale of the
business, as a successor employer was likewise obligated
to recognize and bargain with the Union. The complaint
alleges that Respondents' refusal to furnish the Union
with information about the sale of the business violated
Respondents' bargaining obligation within the meaning
of Section 8(a)(5) of the Act.
It is settled that a labor organization, obligated to rep-
resent employees in a bargaining unit with respect to
their terms and conditions of employment, is entitled to
such information from the employer as may be relevant
and reasonably necessary to the proper execution of that
obligation. Verto Division, Boeing Company, 182 NLRB
421 (1970). The employer's obligation is predicated upon
the need of the union for such information in order to
provide intelligent representation of the employees. F.
W. Woolworth Company, 109 NLRB 196 (1954), enfd. 352
U.S. 938 (1955).
In assessing the relevance of requested information,
wage data and other information concerning bargaining
unit employees is deemed presumptively relevant, while
other information not so obviously related to a union's
bargaining and contract administration responsibilities
must be shown to be "relevant to bargainable issues."
N.L.R.B. v. Rockwell Standard Corp., Transmission and
Axle Division, Forge Division, 410 F.2d 953, 957 (6th Cir.
1969). The burden of proof is thus different, but "the ul-
WESTWOOD IMPORT COMPANY. INC. 1 227
timate standard of relevance is the same in all cases," and
in a particular case, nonunit data may have "an even
more fundamental relevance than that considered pre-
sumptively relevant." Prudential Insurance Co. of ,4merica
v. N.L.R.B., 412 F.2d 77, 84 (2d Cir. 1969).
In determining whether an employer is obligated
under the statute to supply particular requested informa-
tion the Board need only find a probability that the de-
sired information [is] relevant, and that it [will] be of use
to the Union in carrying out its statutory duties and re-
sponsibilities." N.L.R.B. v. Rockwell-Standard Corp., 410
F.2d 953, 957, quoting from N.L.R.B. v. Acme Industrial
Corp., 385 U.S. at 437. This is a "discovery type stand-
ard," thus it allows the Union access to a broad range of
potentially useful information for the purpose of effectu-
ating the bargaining process. A L.R. .v. 4cme Industrial
Corp., 385 U.S. at 437, fn. 6; N.L.R.B. v. Rockwell-Stand-
ard, supra, 410 F.2d at 957.
I am of the opinion that information pertaining to the
sale of the employing enterprise in this case was relevant
to the Union's duty to intelligently represent the employ-
ees in the certified bargaining unit. The Union had a stat-
utory duty to exert its best effort to protect the unit em-
ployees' interests by maintaining their existing terms and
conditions of employment which were vitally affected by
the sale of the business. 2:1 One obvious way of seeking to
protect the interests of the employees it represented was
for the Union to find out whether the new owner was a
new and distinct business entity and, if so, whether it
was a successor employer obligated to recognize and
bargain with the Union. In other words, the Union
needed the requested information to determine whether,
after the change of ownership, the employer was still ob-
ligated to recognize and bargain with the Union as the
representative of the employees in the certified unit.
Under the foregoing circumstances, and since the sale of
the business vitally affected the employees' terms and
conditions of employment, I am persuaded that informa-
tion concerning the sale was relevant to the Union's duty
to intelligently represent the employees in the certified
unit.
Respondents were not, however, obligated to furnish
the Union with all the information concerning the sale,
but only information which shed light on the question of
whether the new employer was a different employer
than its predecessor and, if so, whether it was a succes-
sor employer for purposes of collective bargaining. I rec-
ognize that the Union's request for sales information was
not limited in this respect, but was worded in terms of
"sales information" without a description of the particu-
lar information sought and without an explanation justi-
fying the request. However, the mere fact that the
Union's request for information encompassed information
which the Respondents were not legally obligated to
provide did not automatically excuse them from comply-
ing with the request to the extent that it also encom-
23 The employees employed by Respondent Westuood lost their se-
niority accrued sick leave and three paid holidays as the result of the
change of ow nership in the employing enterprise and were in danger of
losing additional existing employment hbenefits. ithout union represenla-
tion, by virtue of further unilateral action of the successor employer. Re-
spondent Gamut
passed information which they would be required to pro-
vide if it were the sole subject of the demand. Fawcett
Printing Corp., 201 NLRB 946, 975 (1973). Also, it is set-
tled that the adequacy of a request for data must be
judged in light of the entire pattern of facts available to
the employer. Ohio Power Company., 216 NLRB 987,
990-991, fn. 9 (1975).
Here, although the request for information did not spe-
cifically advise Respondents of the reasons for the re-
quest, the circumstances surrounding the request were
reasonably calculated to put Respondents on notice of
the relevant purpose. The request for the information
was expressed to Respondents in the context of verbal
and written communications w'hich placed Respondents
on notice that the Union was taking the position that it
was the employees' bargaining representative, regardless
of any change in the ownership of the employing enter-
prise. The Union's request when taken in context should
have reasonably alerted Respondents that the Union
wanted the information in order to support its position
that it was entitled to represent the employees in the cer-
tified unit regardless of any change of ownership. In any
event, Respondents' failure to accede to the Union's re-
quest had nothing to do with the inadequacy of the
Union's communication. Thus, in refusing the Union's re-
quest for the sales information, Respondent Gamut ig-
nored the request and Respondent Westwood merely
told the Union it had no duty to furnish such information
because the sale of the business was none of the Union's
business. This conduct did not afford the Union either a
guide to assist it in framing a more limited demand or an
incentive to do so in the expectation that a more limited
demand would be honored. Moreover, Respondents have
never taken the position that the Union's request for in-
formation about the sale was not relevant to the Union's
duty as the employees' bargaining representative, or that
the request was too broad, or give any indication that it
was willing to reach some sort of mutually agreeable ac-
commodation with the Union if the request was limit-
ed. 24 In short, nothing in the record indicates that Re-
spondents would have complied with a request limited to
information which the Union was entitled under the stat-
ute or which explained the basis for the request.
It is for the foregoing reasons that I find that Respond-
ent Westwood and Respondent Gamut violated Section
8(a)(5) and (1) of the Act by refusing the Union's request
for information pertaining to the sale of the employing
enterprise.
D. The Interrogation of Union Steward Bonifacio by
Respondent Westwood's Operations Manager
1. The evidence
The Union's steward at the San Francisco facility was
employee Patricia Bonifacio, who on April 2 was one of
the employees transferred from San Francisco to
Hayward when Respondent Westwood relocated its
24 No ne testified for Respondents concerning the reason or reasons
for Respondent's refusal to honor the Unlon's request for the sales infor-
mation
1228 DECISIONS OF NATIONAL LABOR RELATIONS OARD
business operation. Bonifacio continued to act as the
Union's steward at Hayward.
During the middle of April, Bonifacio during working
time left her work station and entered the warehouse
where the warehousemen were working and distributed
copies of the collective-bargaining agreement and mem-
bership applications. 25 She also gave them a copy of the
letter which the Union normally distributes to new em-
ployees which in substance informs them that the Union
has a contract with the Company and that new employ-
ees are required to join the Union after their 60-day pro-
bationary period and explains the benefits of union repre-
sentation and the employees' rights under the contract.
Warehouse Manager McClain stopped Bonifacio from
distributing these documents, explaining to her that for
safety reasons he did not want anyone in the warehouse.
Later that day Operations Manager Rodriguez sum-
moned Bonifacio into his office and asked her not to pass
out any union literature on the Company's premises.
Bonifacio replied that it was the Company's responsibili-
ty to notify the employees about the Union's contract
with the Company and specifically showed him that por-
tion of the contract which states, "the Company shall
advise the new employees of the terms and provisions of
this agreement and their obligation thereunder and, to
complete the necessary forms." Rodriguez replied that
he would take the responsibility of handing out the
"union papers" and changed the topic of conversation.
He asked Bonifacio to accept the position of supervisor
in the computer room. Bonifacio refused this job offer, at
which point Rodriguez asked Bonifacio "why was [she]
so much for the Union?" Bonifacio did not answer be-
cause, as she testified, "I think he knew how I felt about
it, and the way I looked at him, I knew it was sufficient
that he did not need my answer." Bonifacio also testified
that she thought Rodriguez knew how she felt about the
Union based on their previous conversations about that
subject.
Contemporaneously with Rodriguez' conversation
with Bonifacio, the Company distributed a "Memo To
All Employees," which informed the employees in sub-
stance that due to the Company's relocation to Hayward,
the Union no longer represented them and that the em-
ployees should give the Company "a chance" and not
join the Union because, the memo stated, "the salaries
and benefits at Westwood are as good, if not better, than
those provided by Westwood when we had a union con-
tract in San Francisco."
2. Conclusions
As described supra, Operations Manager Rodriguez
asked employee Bonifacio why she was such a zealous
union adherent. This question was not asked for a per-
missible purpose and was not accompanied by an assur-
ance against reprisal. It cannot be characterized as a
casual remark inasmuch as it was expressed by the Com-
pany's operations manager, a person high up in the su-
2s The collective-bargaining contract between the Union and Respond-
ent Westwood in the article entitled "Union Representative" provides
that "it is generally understood that the steward should attend to Union
matters during non-working time. The Company agrees, however, that it
will be reasonable in the application of this section."
pervisory hierarchy, and took place in the privacy of the
office of the operations manager where Bonifacio had
been summoned. Nor can the interrogation be considered
as an isolated act inasmuch as it took place at a time
when the Company had illegally withdrawn recognition
from the Union in violation of Section 8(a)(5) of the Act
and was in effect telling the employees that they were
better off working for the Company without union rep-
resentation. It is for these reasons that I conclude that,
by interrogating employee Bonifacio about the basis for
her zealous support of the Union, Rodriguez engaged in
the kind of conduct which reasonably tends to have a
coercive effect and thus intruded into the employees'
Section 7 rights. " I therefore find that by engaging in
this conduct Respondent Westwood violated Section
8(a)(1) of the Act. See Fred Jones Manufacturing Compa-
ny, 239 NLRB 54 (1978), citing ITTAutomotive Electrical
Products, 231 NLRB 878 (1977); CBS Records Division of
CBS, Inc., 223 NLRB 709 (1976).
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
CONC USIONS OF LAW
1. Respondent Westwood is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Respondent Gamut is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
3. Respondent Gamut is a successor employer to Ra-
spondent Westwood for purposes of Sections 8(a)(5) and
9(a) of the Act.
4. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
5. All employees employed by Respondent Gamut and
Respondent Westwood at the Hayward, California, fa-
cility, excluding salespersons, warehouse employees,
guards, managerial. supervisory, professional, and confi-
dential employees constitute an appropriate bargaining
unit within the meaning of Section 9(b) of the Act.
6. The Union at all times material has been and is the
exclusive bargaining representative of all employees in
the aforesaid bargaining unit within the meaning of Sec-
tion 9(a) of the Act.
7. By interrogating an employee about her union sym-
pathies and activities, Respondent Westwood violated
Section 8(a)(1) of the Act.
8. By withdrawing recognition from the Union as the
collective-bargaining representative of the employees in
the appropriate unit, by repudiating the collective-bar-
gaining agreement between itself and the Union, and by
refusing to supply the Union with relevant information
upon request, Respondent Westwood violated Section
8(a)(5) and (1) of the Act.
9. By failing and refusing to recognize and bargain
with the Union as the collective-bargaining representa-
tive of the employees in the appropriate unit, by unilater-
ally changing previously established terms and conditions
26 The fact that employee Boilifacio had openly declared her prounion
sentinments is no defense toi what would otherwise constitute impermissi-
ble interrogation. See lir .lubomotive Electrwal Products. 231 NLRB 878.
'WESTWI()OD IMPORT COMPANY, INC 1 229
of employment for employees in the appropriate unit
without bargaining with the Uinion, and by refusing to
supply the Union with relevant information upon re-
quest, Respondent Gamut violated Section 8(a)(5) and (1)
of the Act.
THE RMEDFI
Having found that Respondent Westwood violated its
collective-bargaining obligation toward the Union within
the meaning of Section 8(a)(5) of the Act and unlawfully
interrogated an employee in violation of Section 8(a)(1)
of the Act, I shall recommend that if Respondent
Westwood should ever resume its business operations at
the Hayward, California, facility that it cease and desist
from engaging in conduct of this nature.
Having found that Respondent Westwood unlawfully
repudiated its collective-bargaining contract with the
Union, I shall recommend that it make whole the em-
ployees in the appropriate bargaining unit for any loss of
earnings or employment benefits they may have suffered
for the period on and after April 2, 1979, due to Re-
spondent Westwood's failure to give effect to the terms
of the collective-bargaining agreement, 2 7 with interest as
computed in Florida Steel Corporation, 231 NLRB 651
(1977), and to continue such payments until Respondent
Gamut, upon the request of the Union, restores the em-
ployees' terms and conditions of employment to what
they had been prior to April 2, 1979, the date Respond-
ent Westwood repudiated its collective-bargaining con-
tract. 28
Having found that Respondent Gamut violated Section
8(a)(5) and (1) of the Act by refusing to recognize and
bargain with the Union and by unilaterally changing em-
ployees' wages and other terms and conditions of em-
ployment, I shall recommend that it cease and desist
therefrom and, affirmatively, to bargain with the Union
upon request. In addition, to remedy the unilateral
changes found herein, I shall recommend that Respond-
ent Gamut, upon the request of the Union, revoke all the
unilateral changes which heretofore in this Decision
have been found to have violated the Act, until such
time as Respondent Gamut negotiates with the Union in
good faith to agreement or impasse thereon, and make
the unit employees whole for any financial loss they may
27 I recognize that there are indications in the record that. when Re-
spondent Westwood repudiated its contract with the Union, the econom-
ic terms of the agreement, including those relating to wages and fringe
benefits, were not changed and that, in actuality, the members of the bar-
gaining unit may not have sustained any economic loss b virtue of the
conduct found unlawful herein. However, this is a matter better left for
the compliance stage of this proceeding. The Board's traditional make-
whole remedy has been included herein as a safeguard
28 The sale of the business on July 20(1, 1979, did not toll Respondent
Westwood's liability because the employing enterprise remained the same
after the sale: the new employer, Respondent Gamut, was a successor
employer for purposes of Sections 8(a)(5) and
9 (a) of the Act Also, as I
have found supra, Respondent Gamut did not establish new terms and
conditions of employment in the employing enterprise prior to incurring
an obligation to bargain with the Union In other words, the record es-
tablishes that, but for Respondent Westwood's unlawful repudiation of its
collective-bargaining contract. the employees in the appropriate unit, d-
spite the change in ownership. would have continued to receise the
terms and conditions of employment contained in the collective bargain-
ing contract and that such terms and conditions could not have been law-
fully changed by Respondent Gamut absent negotiations with the Union
have suffered by reason of the the aforesaid unilateral
changes, with interest as prescribed in Florida Steel Cor-
poration, 231 NLRB 651 (1977).
In addition to recommending the aforesaid legal sanc-
tions against Respondent Gamut based on Respondent
Gamut's unfair labor practices, the record reveals that
Respondent Gamut is responsible for remedying certain
of the unfair labor practices engaged in by Respondent
Westwood regardless of whether or not Respondent
Gamut itself engaged in conduct proscribed by the Act.
Thus, Respondent Gamut is a successor employer to Re-
spondent Westwood and acquired the employing enter-
prise with knowledge that the instant unfair labor prac-
tice proceeding was pending against Respondent
Westwood, charging that employer with unlawfully re-
fusing to recognize the Union as the bargaining repre-
sentative of the employees in the enterprise Gamut in-
tended to purchase and repudiating a collective-bargain-
ing agreement with the Union covering these employees.
The law is settled that a successor employer which takes
over a going business with knowledge of the existence of
unremedied unfair labor practices of its predecessor, and
continues to operate the business without any discernible
change of existing labor policy, is obligated to remedy
such unfair labor practices.2 9 Here, Respondent Gamut
took over Respondent Westwood's business with knowl-
edge that Westwood was charged in this proceeding
with withdrawing recognition from the Union and repu-
diating its contract with the Union. Nonetheless, Gamut,
consistent with Respondent Westwood's labor policy, re-
fused to recognize and bargain with the Union. Under
the circumstances, Respondent Gamut is responsible for
remedying Respondent Westwood's refusal to recognize
and bargain with the Union. Accordingly, for this addi-
tional reason, I shall order Gamut to cease and desist
therefrom and, affirmatively, to bargain with the Union
upon request. SeePonn Distributing, Inc., and Cott Corp.,
232 NLRB 312 (1977).
I further conclude that Respondent Gamut as the suc-
cessor employer to Respondent Westwood was obligat-
ed, in accordance with the basic holding in Perma Vinyl.
supra, to also remedy Respondent Westwood's repudi-
ation of its collective-bargaining contract. I therefore
shall recommend that Respondent Gamut jointly and
severally with Respondent Westwood make whole the
unit employees in the manner described previously.3 0
29 See Perma Vinyl Corp., Dade Plastics Co. and L'nited Slates Pipe and
Foundrvl Companyr 164 NLRH 968 (1967), enfd. 398 F.2d 544 (5th Cir
1969) Permua Vinyl itself involved only discriminatory discharge findings,
and did not involve (a)(5) bargaining violations. However, in Perma
V'inrl the Board expressly fllowed Alexander .Wilburn Co, 78 NLRB
747, 748 749, 753754 (1948). which held a successor liable to remedy
the predecessor's violations of its bargaining obligations Also see Ponn
Ditributing. Inc. and Cotr Corp.. 232 NLRB 312 (1977).
'o In holding Respondent Gamut liable for remedying this unfair labor
practice or Respondent West.:ood for the period after it took over the
operation of the employing enterprise, have taken into account the fact
that, when (iamut took over the employing enterprise, it was not legally
obligated to continue the employees' existing terms and conditions of em-
ployment However. the record establishes, as found upra. that Respond-
ent Gamut continued the existing terms and conditions of employment
and did not establish ners terms and conditions of employment prior to
incurring an obligation to bargain with the Union In other words. Re-
Continued
1230 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to
Section 10(c) of the Act. I hereby issue the following
recommended:
ORDER3'
A. The Respondent, Westwood Import Company,
Inc., Hayward, California, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from the following in the event it
resumes operations at the Hayward, California, location:
(a) Refusing to recognize and bargain collectively with
the Union, Office and Professional Employees Union,
Local 3, Office and Professional Employees International
Union, AFL-CIO, CLC, as the exclusive bargaining rep-
resentative of all of the Company's employees, excluding
guards, managerial, supervisory, sales, warehouse, profes-
sional, and confidential employees.
(b) Refusing to give effect to the terms and conditions
of a collective-bargaining contract with the Union, with-
out the consent of the Union, or repudiate such a con-
tract.
(c) Refusing to bargain collectively with the Union by
refusing to supply relevant information upon request.
(d) Interrogating employees about their union member-
ship, sympathies, or activities.
(e) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Jointly and severally with Respondent Gamut De-
signs, Inc., d/b/a Westwood Import Company, make
whole the employees in the aforesaid bargaining unit for
any loss of employment benefits for the period on and
after April 2, 1979, due to the failure of Respondent
Westwood to give effect to its contract with the Union,
with interest as computed in Florida Steel Corporation,
231 NLRB 651, and continue such payments until such
time as Respondent Gamut, at the request of the Union,
has restored the employees' terms and conditions of em-
ployment to what they were prior to the time Respond-
ent Westwood repudiated the contract.
(b) 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 re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Mail a copy of the attached notice marked "Apen-
dix A"3 2 to each of its employees in the appropriate unit
spondeni Gamut would have been required to bargain in good faith to al
impasse with the Union before unilaterally changing any of the terms and
conditions of employment included in the Union's contract with Re-
spondent Westwood.
' 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. 102.48 of the Rules and Regulations, be adopted by the tlard and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
32 In the event that this is enforced by a Judgement of a United States
Court of Appeals, the words in the notice reading "Posted by Order of
employed at the facility in Hayward, California, between
April 2, 1979, and July 20., 1979. Copies of said notice,
on forms provided by the Regional Director for Region
32, shall, after being duly signed by a representative of
Respondent Westwood, be mailed immcdiately upon re-
ceipt thereof.
(d) Notify the aforesaid Regional Director for Region
32, in writing, within 20 days from the date of this
Order, what steps the Respondent Westwood has taken
to comply herewith.
B. Respondent Gamut Designs, Inc., d/b/a Westwood
Import Company, Hayward, California, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
the Union, Office and Professional Employees Union,
Local 3, Office and Professional Employees International
Union, AFL-CIO, CLC, as the exclusive bargaining rep-
resentative of the Company's employees, excluding
guards, managerial, supervisory, sales, warehouse, profes-
sional, and confidential employees.
(b) Refusing to bargain collectively with the Union by
refusing to supply relevant information upon request.
(c) Refusing to bargain collectively with the Union by
unilaterally changing wages, hours, or other terms and
conditions of employment of the employees in the afore-
said bargaining unit.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Recognize and, upon request, bargain collectively
with the Union, Office and Professional Employees
Union, Local 3, Office and Professional Employees In-
ternational Union, AFL-CIO, CLC, as the exclusive rep-
resentative of all its employees in the unit described
above, with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment
and, if an understanding ia reached, embody such under-
standing in a signed agreement.
(b) Jointly and severally with Respondent Westwood
Import Company, Inc., make whole the employees in the
aforesaid unit for any loss of employment benefits for the
period on and after April 2, 1979, due to the failure of
Respondent Westwood Import Company, Inc., to give
effect to the terms or its contract with the Union, with
interest as computed in Florida Steel Corporation, 231
NLRB 651, and continue such payments until such time
as Respondent Gamut, at the request of the Union, has
restored the employees' terms and conditions of employ-
ment to what they were prior to the time Respondent
Westwood repudiated the contract.
(c) Upon the request of the Union, revoke the unilater-
al changes in the rates of pay, wages, and other terms
and conditions of employment described in this Decision,
which were placed into effect by Respondent Gamut in
the aforesaid unit, until such time as Respondent Gamut
the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment (if the United States Court of' Appeals Enforcing an Order of
the National Labor Relations Board"
WESTWOOl) IMPORT COMPANY. INC 1231
negotiates with the Union in good faith to agreement or
impasse thereon.
(d) Make whole the employees in the aforesaid unit for
any loss of pay or other benefits they may have suffered
as a result of Respondent Gamut's unilateral conduct
which has been described in this Decision, with interest
as computed in Florida Steel Corporation, 231 NLRB 651,
and continue such payments until such time as Respond-
ent Gamut negotiates in good faith with the Union to
agreement or to impasse thereon.
(e) 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 re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Post at its place of business in Hayward, California,
copies of the attached notice marked "Appendix B." 33
Copies of said notice, on forms provided by the Regional
Director for Region 32, after being duly signed by Re-
spondent Gamut's representatives, shall be posted by Re-
spondent Gamut immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent Gamut to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(g) Notify the Regional Director for Region 32, within
20 days from the date of this Order what steps Respond-
ent Gamut has taken to comply herewith.
33 See fn 32.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
collectively with the above-named Union as the ex-
clusive representative of our employees in the ap-
propriate unit.
WE WILL NOT refuse to bargain collectively with
the above-named Union by refusing to supply rele-
vant information to the Union upon request.
WE WlLt. NOT unilaterally change the rates of
pay, wages, hours, and/or other terms and condi-
tions of employment of the employees in the appro-
priate unit in derogation of our bargaining obliga-
tions to the above-named Union.
Wr Will1 NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
Wl Vwit.I. recognize and, upon request, bargain
collectively with the Office and Professional Em-
ployees Union, Local 3, Office and Professional
Employees International Union, AFL-CIO. CLC.
as the exclusive representative of all our employees
excluding guards, managerial, supervisory, sales,
warehouse, professional, and confidential employees
and, if an understanding is reached, embody such
understanding in a signed agreement.
WE WILI. jointly and severally with Westwood
Import Company, Inc., make whole the employees
in the above-described bargaining unit for any loss
of employment benefits for the period on and after
April 2, 1979, due to the failure of Westwood
Import Company, Inc., to give effect to the terms
and conditions of its contract with the Union, with
interest, and continue such payments of its contract
with the Union, with interest, and continue such
payments until such time as we, at the request of
the Union, have restored the employees' terms and
conditions of employment to what they were prior
to the time Westwood Import Company, Inc., repu-
diated its contract with the Union.
WE Wl.. upon request of the Union, revoke the
unilateral changes in the rates of pay, wages, and
other terms and conditions of employment which
we have instituted in the aforesaid bargaining unit,
until such time as we negotiate with the Union in
good faith to agreement or an impasse in negotia-
tions is reached.
WE WIt.L make whole the employees in the
aforesaid unit for any loss of pay or other benefits
they may have suffered as a result of the aforesaid
unilateral changes, with interest, and continue such
payments until such time as we negotiate in good
faith with the Union to agreement or impasse.
GAMUT DESIGNS, INC., D/B/A WESTWOOD
IMPORT COMPANY