Summit Tooling Co.

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