Plymouth Industries, Inc.

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