Bridgford Distributing Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bridgford Distributing Co. and General Teamsters and Food Processing Local Union No. 87, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 31- CA-5664 May 16, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On April 22, 1976, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, General Counsel and Respondent filed exceptions to the Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. We agree with the Administrative Law Judge that Respondent violated Section 8(a)(5) of the Act by refusing to bargain with General Teamsters and Food Processing Local Union No. 87, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, regarding the effects of its decision to transfer the Bakersfield operation. However, we disagree with the Administrative Law Judge's conclusion that Respondent's accelerated transferring of the Bakersfield operation, because of Local 87's claim that the employees there were covered by an existing contract with another Team- sters local, did not violate Section 8(a)(3) and (1) of the Act. Respondent began its Bakersfield operation in April 1974 when Arlin Fletcher and Daniel Donati were hired as route salesmen for that area. Prior to that time, Respondent's Bakersfield customers were serviced by route salesmen based in Fresno, Califor- nia. The entire Bakersfield operation consisted of an answering service, refrigeration facilities, and some parking spaces. Beginning in September or October 1974, Respondent's business started a downward trend which continued through 1975. As a result, Respondent's management discussed the possibility of consolidating some of its operations in order to reduce expenses. The sales figures for the Bakersfield routes were consistently below the break-even point. In May 1975,1 Respondent's management decided to transfer its Bakersfield routes back to the Fresno operation. The customers would remain the same. The only difference would be that they would be serviced out of Fresno. Pursuant to this plan, in May the area sales manager for the San Joaquin Valley, Stan Hammett, was told to move from Modesto to Fresno. Hammett made the move on or about September 12. As of August, the Bakerfield employees were not represented by a collective-bargaining agent. In the middle of that month, Local 87, the Charging Party, was contacted by Fletcher and Donati after Fletcher learned that Respondent's Anaheim employees received $50 per week more base pay under a contract with another Teamsters local, Local 952. On August 20, after making a determination (apparently later discovered to be erroneous) that the Anaheim local's contract applied to the Bakersfield operation, Local 87's business representative, Robert Chandler, telephoned Respondent's president, Orin Adams. They engaged in a rather heated conversation, during the course of which Chandler informed Adams that he felt that the Bakersfield employees were covered by the Anaheim contract with Local 952. Adams responded that he knew nothing of Local 87 and questioned its jurisdiction over Bakersfield. On August 22, Chandler wrote one of Respon- dent's principal owners, Allen Bridgford, stating that there was a difference of opinion concerning applica- tion of the Anaheim contract. Chandler's letter concluded as follows: I am in hopes we may clear this matter up without a serious problem. Would you be so kind as to straighten this matter out and I would like to hear from you in the near future as to your position regarding this matter. On August 27, Bridgford replied that Respondent had operated the Bakersfield routes as part of the San Joaquin Valley division headquartered in Fresno but saw "no reason why we shouldn't have a contract in Bakersfield, if you feel this is the proper proce- dure." Bridgford also requested a few days to figure out the situation and a copy of the contract that Local 87 used in Bakersfield for Teamsters drivers. On August 29, Chandler wrote to Bridgford, for- warded a copy of the Anaheim contract, reiterated his position that the contract then applied to Bakersfield and was being violated by Respondent, and concluded, "Please state your position so we may resolve this matter." Respondent never an- swered this letter. i All dates hereinafter are in 1975 unless otherwise indicated. 229 NLRB No. 96 678 BRIDGFORD DISTRIBUTING CO. On September 2, Adams told Fletcher that the Bakersfield operation was going to move to Fresno and to consider that his 30-day notice. On October 3, Hammett told Fletcher and Donati that the Bakers- field operation was being transferred to Fresno in I week. He offered both of them jobs in Fresno, which they declined. The Bakersfield operation was trans- ferred to Fresno on October 10. The Administrative Law Judge found that the date of the transfer of the Bakersfield operation was accelerated because of Local 87's claim that Bakers- field employees were covered by Respondent's contract with Local 952 in Anaheim. Indeed, Adams admitted that the date he selected for the move to Fresno was based on his desire to avoid the higher wages Chandler claimed was due to Fletcher and Donati under that agreement. Nevertheless, the Administrative Law Judge concluded that the accel- eration of the transfer date does not constitute a violation of the Act because the transfer was primarily due to economic reasons and Adams was not motivated by a desire to interfere with the Section 7 rights of Fletcher and Donati. We cannot agree. It is well settled that an employer who accelerates a decision to transfer unit work in order to avoid recognition of, and bargaining with, the collective- bargaining representative of its employees is in violation of Section 8(a)(3). This is the case even where the initial decision to effect the transfer is based on legitimate economic considerations.2 As noted above, Respondent's president, Adams, admitted that Local 87's claim for higher wages under Respondent's contract with the Anaheim Teamsters local influenced his decision to transfer the Bakersfield operation on the date which he did. The fact that Local 87's demands would have added to Respondent's bleak economic picture, if substanti- ated, does not overcome the inherently destructive effect of its precipitate action on the Section 7 rights of its employees. Respondent acted on the mere fear that Local 87's demands would cause an unbearable increase in its expenses. There was no realization of these demands. Rather, Respondent accelerated the transfer and moved to Fresno in order to avoid bargaining with Local 87 over the applicability of the Anaheim contract to its Bakersfield operation. This 2 Ethel J. Hinz, as an Individual and as Executrix of the Estate of Lester F Hinz, d/b/a Myers Ceramic Products Co., 140 NLRB 232 (1962); Ox-Wall Products Manufacturing Co., Inc.. et al., 135 NLRB 840 (1962). As in Myers Ceramics, supra, we respectfully disagree with the circuit court decisions relied on by the Administrative Law Judge. We find that McLoughlin Manufacturing Corporation, et al., 164 NLRB 140 (1967), 182 NLRB 958 (1970) (Supplemental Decision and Order), also relied on by the Administrative Law Judge, is distinguishable. That case involved the question of whether the respondent's initial decision to move was motivated by economic considerations or by union animus, and the is no less a violation of Section 8(a)(3) than would be a transfer because of union activities. Accordingly, we find that by accelerating to October 10, 1975, the transfer of its Bakersfield operation to Fresno, and the resulting termination of Fletcher and Donati, Respondent violated Section 8(a)X3) and (1) of the Act. THE REMEDY Having found the Respondent has engaged in unfair labor practices proscribed by Section 8(a)(5), (3), and (1) of the Act, it will be ordered that Respondent cease and desist from such conduct and take certain affirmative action designed to effectuate the policies of the Act. As recommended by the Administrative Law Judge, Respondent will be ordered to bargain, upon request, with General Teamsters and Food Process- ing Local Union No. 87, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, as the exclusive representative of the discharged Bakersfield drivers, Arlin Fletcher and Daniel Donati, with respect to the effect on said employees of Respondent's transfer of its Bakersfield operation. Contrary to the Administrative Law Judge, we have found that on October 10, 1975, Respondent discriminatorily accelerated the transfer of its Bak- ersfield operation in violation of Section 8(aX3) and (1). The evidence indicates, however, that, absent unlawful motivation, the Respondent would have transferred the Bakersfield operation at a subsequent time for economic reasons. Therefore, Respondent shall not be required to reestablish the Bakersfield operation. We are unable to determine on the record before us the date on which the transfer would have occurred. Accordingly, we shall leave for the compli- ance stage of this proceeding the determination of the date on which the discriminatees would have been required to relocate to Fresno or terminate employment with Respondent absent the unlawful motivation. We shall direct that Respondent bargain with the Union with respect to whether Fletcher and Donati may, if they desire, transfer to other positions in Respondent's organization and as to the method, terms, and conditions upon which such transfers, if any, be made. We shall also require the Respondent Board concluded there that economic considerations rather than any union animus were controlling. That case, unlike the present one, did not concern acceleration of a decision previously made in order to avoid bargaining with a new union. Moreover, in this case, the employees' union activities or bargaining representative were in no way a factor in the economic difficulties which led Respondent to the initial decision to transfer the operation. Rather, having valid nonunion-related reasons for transferring the operation. the Respondent accelerated the date of the transfer because of Local 87's demands for bargaining. 679 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to make said employees whole for any losses of pay or other benefits they may have suffered by reason of the unlawful discrimination against them by pay- ment to each of them a sum of money each would have earned from October 10, 1975, to the date on which we would have been terminated for nondis- criminatory reasons, less his net earnings elsewhere. Such loss of earnings and benefits shall be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and shall include interest at the rate of 6 percent per annum as provided for in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). We shall also order the Respon- dent to preserve and, upon request, make available to the Board or its agents payroll and other records necessary to determine employment rights and the amount of backpay due. CONCLUSIONS OF LAW 1. Bridgford Distributing Co., Respondent here- in, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters and Food Processing Local Union No. 87, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit is an appropriate unit within the meaning of Section 9(b) of the Act: All drivers employed by the Employer in Bakers- field, California; excluding all office clerical employees, guards and supervisors as defined in the Act. 4. The above-named labor organization is, and has been since August 23, 1975, the exclusive representative of all employees in the aforesaid appropriate unit, for the purposes of collective- bargaining within the meaning of Section 9(a) of the Act. 5. By accelerating the transfer of its Bakersfield operation in order to avoid negotiations with the Union, Respondent has engaged in discrimination with regard to the hire and tenure of employment of Arlin Fletcher and Daniel Donati within the mean- ing of Section 8(a)(3) and (I) of the Act. 6. Respondent engaged in unfair labor practices in violation of Section 8(a)(5) of the Act by transferring its Bakersfield, California, business operation without bargaining with the Union relative to the effects of such transfer on the Bakersfield unit employees. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Bridgford Distributing Co., Los Angeles, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in General Team- sters and Food Processing Local Union No. 87, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of its employees, by discrim- inating in regard to their hire or tenure of employ- ment or any terms or conditions of employment. (b) Failing or refusing to bargain collectively with General Teamsters and Food Processing Local Union No. 87, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, concerning the effects of transferring its Bakersfield, California, business operations on Re- spondent's employees in the following appropriate unit: All drivers employed by the Employer in Bakers- field, California; excluding all office clerical employees, guards and supervisors as defined in the Act. (c) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, including the above-named organization, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the purpose of collective- bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action, which we find will effectuate the policies of the Act: (a) Make whole Arlin Fletcher and Daniel Donati for any losses they may have suffered by reason of Respondent's discrimination against them in the manner set forth in the remedy section of this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, work lists, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Upon request, bargain with the above-named labor organization as the exclusive labor representa- tive of all employees in the aforesaid appropriate unit with respect to the effect on said employees of 680 BRIDGFORD DISTRIBUTING CO. Respondent's transferring of its Bakersfield, Califor- nia, business operations. (d) Post at its six division offices in California copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. MEMBER MURPHY, concurring in part: 4 I dissent from the finding that the Respondent violated Section 8(a)(3) and (1) by accelerating the closing of its Bakersfield operation. The record clearly indicates that the Bakersfield operation was never profitable and that Respon- dent's business in general was undergoing a down- ward trend. The result of this profit picture was a decision to consolidate several routes, including the Bakersfield route, with the Fresno office. The effectuation of this decision had already begun with the issuance of instructions for the relocation of Respondent's area sales manager, Hammett, to Fresno when Fletcher and Donati contacted Local 87. Local 87 exacerbated the bleak economic picture by its onerous and spurious demand that the Bakersfield employees were entitled to the higher wages established by Respondent's agreement with the Anaheim Teamsters local. Consequently, Re- spondent accelerated the closing of the Bakersfield operation for economic survival only and not for the purpose of interfering with its employees' statutory rights. There is no evidence of union animus. Respondent has a longstanding and amicable relationship with the Teamsters. Several members of its management are members of the Teamsters, and as of the time of the hearing employees in all six of its divisions were represented by Teamsters. Nor has Respondent ever manifested any hostility toward Local 87. To the contrary, on August 27, one of Respondent's princi- pal owners, Alan Bridgford, wrote that, while 3 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Respondent had not realized that Local 87 was a member of the same council as Local 952 in Anaheim and had operated the Bakersfield routes as part of its San Joaquin Valley division headquartered in Fresno, he saw "no reason why we shouldn't have a contract in Bakersfield if you feel that this is the proper procedure." Also, Respondent's area sales manager, Hammett, accompanied Fletcher to the Local 87 office to pick up membership applications for Fletcher and Donati. Further, Respondent offered Fletcher and Donati jobs in Fresno which, if they had accepted, would have required them, pursuant to the terms of the union-security provision in the applicable contract, to join the Teamsters local there. Under these circumstances, I would find that Respondent did not act unlawfully in accelerating the closing of the Bakersfield operation in order to avoid the additional financial burden Local 87 threatened by obstinately (and erroneously) insisting that the Bakersfield employees were entitled to the wages established by Respondent's contract with the Anaheim local. See McLoughlin Manufacturing Corp., supra. I also dissent from my colleagues' finding that Respondent violated Section 8(a)(5) by refusing to bargain with Local 87 over the effects of the closing of its Bakersfield operation. In finding that Respondent recognized Local 87 as the exclusive collective-bargaining representative of the Bakersfield employees, the Administrative Law Judge relies on Local 87's letters of August 22 and 29 as constituting requests for recognition and bargain- ing sufficient to create a legal obligation on the part of Respondent to bargain regarding the effects of its closing. This is not a fair interpretation of these letters. Local 87 never indicated to Respondent that it represented Fletcher and Donati or that it sought bargaining in a separate unit. Nor did Fletcher or Donati ever indicate to Respondent that they had signed union authorization cards for Local 87. There is no evidence that even on September 9, when Respondent's area sales manager, Hammett, took Fletcher to the Local 87 office to pick up member- ship applications, Respondent had any knowledge that either Fletcher or Donati completed and signed the applications. Furthermore, Local 87 did not make a demand for recognition as the bargaining representative for Fletcher and Donati. Rather, the gist of Local 87's claims was that Fletcher and Donati were an accretion to an existing bargaining unit represented by Teamsters Local 952 in Ana- heim. Thus, Chandler stated in his August 22 letter: I4 agree with my colleagues and the Administrative Law Judge that Respondent did not interrogate employees about their union activities or threaten to transfer work from them because of such activity. 681 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . . . your units in Bakersfield are not being operated under the terms and conditions of the current labor contract. And, in his letter of August 29, he wrote: It is our position that your company has been under the terms of this contract [with Local 952 in Anaheim] for some time and when you put your company in operation here in Kern County the terms and conditions should have been put into effect. Chandler's letters did not request contract negotia- tions but merely asserted that the Bakersfield operation was subject to the "current labor contract" with Local 952 in Anaheim. In this context, Bridg- ford's letter of August 27 in which he suggested that there was no problem with having a contract in Bakersfield can only be read as indicating a willingness on the part of Respondent to consider and discuss whether the employees belonged in the Anaheim unit. Assuming arguendo that Local 87's assertions that the Anaheim contract applied to the Bakersfield operation did constitute a demand for recognition and contract negotiations and that Respondent had recognized Local 87 as the exclusive bargaining agent of its employees, on the facts herein Respon- dent still had no obligation to bargain over the effects of the closing absent a request for such bargaining. The alleged discriminatees were in- formed of Respondent's decision to close its Bakers- field operation on August 22 and had heard rumors to that effect for the previous 6 months. They testified that they told Chandler, Local 87's business representative, of the proposed move as early as mid- September. Yet, Local 87 never protested or request- ed bargaining relative to the effects of the closing and transfer to Fresno. I am unwilling to excuse the failure to request bargaining merely because of Respondent's failure to respond to the Union's contention that the Anaheim contract applied to the Bakersfield employees. Failure to respond on that issue did not indicate any general unwillingness to bargain such as to warrant the finding implicit in the Administrative Law Judge's Decision that a request to bargain as to the effects of the closing would be futile. Rather, I conclude that the Union, having notice of the closing, failed to exercise its right to demand discussion or bargaining and cannot claim that Respondent refused to bargain.5 5 See International Offset Corp., et al., 210 NLRB 854 (1974); Kingwood Mining Company, 210 NLRB 844 (1974); Hartmann Luggage Company, 173 NLRB 1254 (1968). In view of the foregoing, I would dismiss the complaint in its entirety. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. We intend to carry out the Order of the Board and to abide by the following: The Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain collectively through represen- tatives of their choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT discriminate against any employ- ee in regard to his hire or tenure of employment, or any other term or condition of employment because you designate a union to bargain collec- tively with us about your rates of pay, wages, hours, or other terms and conditions of employ- ment. WE WILL NOT interfere with, restrain or coerce our employees in the exercise of their rights guaranteed to them by Section 7 of the National Labor Relations Act, in violation of Section 8(a)(5) of the Act, by closing our Bakersfield, California, business operation without bargaining with General Teamsters and Food Processing Local Union No. 87, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, relative to the effects of such closing on the Bakersfield unit employees. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL make whole Arlin Fletcher and Daniel Donati for any loss they may have suffered by reason of the discrimination practiced against them with interest thereon at 6 percent per annum. WE WILL, upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid 682 BRIDGFORD DISTRIBUTING CO. appropriate unit, with respect to the effect on said employees of closing our Bakersfield, California, business operations. BRIDGFORD DISTRIBUTING CO. DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard at Los Angeles, California, on February 19 and 20, 1976.' The complaint,2 issued December 24, is based on an original charge filed October 8 and a first amended charge filed November 25 by General Teamsters and Food Processing Local Union No. 87, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as the Union. The complaint alleges that Bridgford Distributing Co., hereinafter referred to as Respondent, violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, hereinafter referred to as the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. Upon the entire record, and from observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and at all times material herein has been, a corporation organized and existing under and by virtue of the laws of the State of California, with an office and principal place of business located in Anaheim, California, where it is engaged in the sale and distribution of delicatessen food products. Respondent, in the course and conduct of its business operations, annually sells and ships goods and services valued in excess of $50,000 directly to customers located outside the State of California, and annually derives gross revenues therefrom in excess of $500,000. 1 find that Respondent is, and at all times material herein has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED General Teamsters and Food Processing Local Union No. 87, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, is, and at I All dates hereinafter are within 1975,. unless stated to be otherwise. 2 As amended at hearing to request a bargaining order and to correct misspellings and name of Respondent to read Bridgford Distributing Co. I Since August. Prior to that time, Parr was a route salesman (nonsupervisory). B4 akersfield is the center of most of the controversy herein. Quite a lot all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background Respondent engages in the sale and distribution of delicatessen food, and sale of related services, in a rather extensive area, principally in southern California. Its corporate offices are located in Anaheim, California. Principal owners are Allan Bridgford, who serves as president of Bridgford Foods Corporation; Bill Bridgford, who is chairman of the board of Bridgford Foods Corporation; and Hugh Bridgford, who founded Bridgford Foods Corporation and Respondent. Orin Adams (Adams) is president of Respondent, with an office in Anaheim, where he works most of the time. He reports directly to Allan Bridgford each Monday morning, and indirectly reports to him on a daily basis. Adams conducts the labor relations of Respondent, in addition to performance of his other duties. Stan Hamett (Hamett) is area manager of Respondent for the valley division (defined later), and reports directly to Adams. Reggie Parr (Parr) is sales supervisors of Respondent's northern valley area (Sacramento and Modesto), and reports to Hamett. The answer admits, and I find, that Allan Bridgford, Adams, Hamett, and Parr now are, and at all times material herein have been, supervisors within the meaning of the Act. Respondent has six divisions. Four of the six are in the Los Angeles area; one is in the Bay area; and one consists of the valley area from Bakersfield, California, to the Oregon border. Included among other cities within the valley area are those of Modesto, Fresno, Sacramento, and, at times relevant herein, Bakersfield. Respondent's relationship with unions extends over the past 22 years. Respondent currently has six contracts with the Teamsters Union, covering route salesmen of all six divisions. Each contract describes the area to which it applies,4 and each includes a union-security clause. Nine members of management, in addition to division employ- ees, are union members. Included within the nine are Adams,5 Hamett, and Parr. The Union never has struck Respondent, nor has any unfair labor practice charge been filed against Respondent prior to the present charges. Prior to April 1974, Respondent's Bakersfield customers were served by route salesmen based in Fresno, who made one overnight run into Bakersfield each week. In April 1974 Hamett and another staff member were sent to Bakersfield to ascertain whether the area could be developed further; they were successful. Respondent decided to establish a facility in Bakersfield, and to that end purchased refrigerated vehicles, rented operating space of testimony was adduced concerning the question of whether Bakersfield was covered by the contract between Respondent and Local 952. the Local having jurisdiction over Orange County including Anaheim. However, counsel stipulated that at no time was Respondent a party to a collective- bargaining agreement with Local 87 of Bakersfield. I Adams has been a union member 21 years. 683 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and services, and hired two route salesmen. The salesmen were put on salary plus commission, 6 the commission to become applicable after a salesman's gross business for a given week reached the then break-even point of $3,450. 7 Two route salesmen were hired for Bakersfield. They were Arlin Fletcher (Fletcher) and Daniel Donati (Donati), both of whom were interviewed by Adams. During the interviews, which were held at different times, Fletcher and Donati asked Adams if they would have to join a union, and Adams said they would not. 8 Fletcher was hired by Adams April 25, 1974, and Donati was hired by Adams May 20, 1974. Both were placed under the supervision of Hamett. In June 1975 Fletcher was sent to Anaheim at Respon- dent's expense for training. While there, he discovered that the salesmen in Anaheim, doing work similar to that of Fletcher and Donati, were receiving base pay of approxi- mately $50 per week more than Fletcher and Donati were receiving. When Fletcher returned to Bakersfield he discussed the salary situation with Donati, and the two of them decided to ascertain the reason for the difference in pay between Anaheim and Bakersfield. About the first part of August Fletcher and Donati went to see Robert Chandler, Local 87's representative in Bakersfield, and talked with him about the apparent wage discrepancy. Chandler agreed to look into the matter, and, shortly thereafter, on the same day, he telephoned Union Repre- sentative Kearney in Orange County to discuss the situation. Chandler asked for a copy of the contract between Respondent and the Orange County local, and after he received the copy Chandler concluded 9 that Bakersfield was covered by the Orange County contract. Chandler then called Adams on the telephone o and a heated conversation developed, during which Chandler stated his position that the Orange County contract extended to Respondent's operations in Bakersfield. Adams said he knew nothing about Local 87 and did not know there was a local in Bakersfield; he stated that, in his opinion, the Bakersfield operation was within the jurisdic- tion of the Fresno local. Chandler did not tell Adams that he represented Respondent's Bakersfield employees, nor did he ask Adams to meet with him or to negotiate. This was the first (and only) occasion on which Chandler ever talked with any member of Respondent's management staff. On August 22 Chandler addressed a letter to Allan Bridgford," in which Chandler asked to discuss the contract matter, and, on August 27, Allan Bridgford replied 12 that he saw no real problem, and that he would discuss the matter with Adams, who then was on vacation. On August 23 Fletcher and Donati visited Chandler and signed union authorization cards.t 3 On August 29 Chan- dler wrote to Allan Bridgford '4 and forwarded copies of 6 The amounts of pay were the same as those for salesmen in Fresno. 7 Each division has a different break-even point, after which point commissions are paid, and the break-even amounts change as overhead and costs change. The principal change occurs each year when labor costs are increased under contracts with the Union. The break-even point is the same for all cities in the valley division. " Neither Fletcher nor Donati explained why he asked this question. Both testified that Adams replied that Bakersfield would be a nonunion area, and Adams testified that he replied "not at the present time." s Erroneously, as it developed, and as stipulated by counsel. o0 Based on the testimony of Chandler and Adams, and G.C. Exh. 6, it is found that this telephone call was made August 20. the Local 952 agreement which he (erroneously) thought included the Bakersfield area. On September 9 Hamett came to Bakersfield and visited with Fletcher and Donati. Hamett said he had applications for Fletcher and Donati to sign, to get them into the Fresno local, but the two did not sign the applications. Later that day Hamett took Fletcher to Local 87, where Fletcher signed an application for membership in that local. Hamett then asked that Fletcher take an application form to Donati, which he did. On September 29 Fletcher and Donati filed claims with the Division of Labor Law Enforcement, State of Califor- nia, alleging that Respondent owed them back wages because of payment of wages from April 22, 1974, to September 26, 1975, at less than provided for in the contract with the Union.' 5 The possibility that the Bakersfield operation would be reduced, or entirely transferred to Fresno, had been under discussion for some time prior to a final decision on October 3, as more fully discussed below. Included among the discussions were several instances wherein Fletcher questioned Hamett and Adams concerning the possibility of the change, and the possibility that Fletcher would have to transfer to Fresno, which would involve selling his house and moving his family. Fletcher and Donati had been told that, if the proposed change were made, they would have to move to Fresno and that they would have to pay their own moving expenses.?6 On October 3 Fletcher and Donati met with Hamett and Parr, and Hamett stated that the decision to transfer the entire Bakersfield operation to Fresno had been made. Hamett asked Donati and Fletcher if they wanted to move to Fresno, and both of them declined. After Donati and Fletcher said they would not move, Hamett told them they would have the following week off, with pay, to look for another job. They did take the week off, for which they were paid. Respondent's Bakersfield operation was closed October 10, and its Bakersfield customers since that date have been served from Fresno. A. Alleged Discharge of Fletcher and Donati Paragraphs 6 and 7 of the complaint allege that, on or about September 26, 1975, Respondent discharged Fletch- er and Donati because of their union or other protected activity. General Counsel's theory is that transfer of the Bakers- field operation to Fresno was made, wholly or partially, because of union and related activity at Bakersfield. The evidence does not support that theory, although it does show that the timing of the move was related to union activity. " G.C. Exh. 6. 12 G.C. Exh. 7. 13 G.C. Exh. 9. 14 G.C. Exh. 8. is The claims later were denied. Respondent's Bakersfield operation then was not covered by a union contract. 16 Adams expressed the possibility that, if Fletcher moved himself, Respondent may pay the cost of a U-Haul vehicle. Donati was single, and did not own property in Bakersfield. 684 BRIDGFORD DISTRIBUTING CO. 1. Animus of Respondent The record does not show that Respondent is antiunion. To the contrary, the evidence is that Respondent has a good relationship with the Union. That evidence includes the showing that: (a) all of Respondent's six divisions are covered by union contracts; (b) most of Respondent's managers are active union members, and Adams has been a union member for the past 21 years; (c) the Union never has struck Respondent, or filed an unfair labor practice charge against Respondent (prior to the charges herein discussed); (d) the record shows that the issues herein were created because of economic considerations, not because of union animus; and (e) on September 9 Hamett took Fletcher to see Chandler about Fletcher and Donati applying for membership in Local 87. General Counsel relies on statements allegedly made by Adams during a telephone call Fletcher made to Adams on August 20, as evidence of Respondent's union animus. Fletcher allegedly told Adams that Chandler had ap- proached him on a loading dock and asked for a union card. Fletcher testified: I had called in to verify a charging account that I was servicing at the time, and Mr. Adams came on the line and asked about the union activity in Bakersfield. And I explained to him that we were on the dock loading at Angland Produce and Mr. Chandler ap- proached me and asked for my union card, and I couldn't produce one. Q. Did Mr. Adams have anything to say? A. Yes. He said that if Mr. Chandler contacted us again, not to talk to him, not to sign anything and refer him directly to the Anaheim office. That recitation by Fletcher is not credited. Chandler, General Counsel's witness, testified that he never had talked with Fletcher or Donati prior to August 20, and he said he never contacted either of them on a loading dock any place. Adams denied the statements made by Fletcher. Adams testified: THE WITNESS: And he said that somebody had approached him out on the route and asked to see his Union card, and he had told him he was non-union. Then I told him to stay out of it, that this was going to be a rough deal between this guy who was yelling around and there was obviously going to be some problems, and I didn't want him to be involved. In view of the fact that Adams knew no more about union activity, as of the date of the telephone call from Fletcher, than what he had learned as a result of Chandler's call, it cannot fairly be concluded that the Fletcher-Adams conversation of August 20 constituted an antiunion declaration by Adams. Clearly, when Adams talked with Fletcher, he was concerned about a union claim not related 17 Fletcher testified that he never told any member of management that he signed an authorization card on August 23, and he also stated that he never told Hamett that he wanted to be represented by Local 87. Further, he testified that he never told Adams that he had contacted Chandler. The testimony of Fletcher and Donati makes it clear that neither Hamett nor Adams knew that Chandler obtained signed authorization cards from to Fletcher or Donati's union membership. There is nothing in the record to show that Adams or any other representative of Respondent harbored union animus at times relevant herein, and it is so found. General Counsel argues that Fletcher and Donati engaged in concerted activity when they filed claims for back wages, and that they were discharged, actually or constructively, for that reason. The evidence does not support that allegation. The two employees did not file claims until September 29, and the subject of a move to Bakersfield by that date was an old one. The conflicting testimony about Adams "blowing his top" when he learned of the claims need not be resolved, since it is clear that the claims neither caused nor contributed to the closing of the Bakersfield operation. At most, they only illustrate the reason for accelerating the closing, and acceleration under the facts of this controversy is not a violation of the Act, as discussed below. 2. Respondent's knowledge of union activity The first union activity at Bakersfield occurred in August, when Fletcher and Donati visited Chandler. Respondent's first knowledge of such activity occurred August 20, when Chandler telephoned Adams. However, Chandler did not tell Adams anything on August 20 that would lead Adams to believe that Chandler's activity was instigated by Fletcher and Donati. Chandler only claimed that the Anaheim contract was applicable to Bakersfield. If that claim was valid, the principal effect would be that Respondent would owe Fletcher and Donati a substantial sum of money for past wages, and a duty to raise their wages immediately; union membership would be inciden- tal since, under the Anaheim contract, such membership was mandatory. Transfer of Fletcher and Donati to Fresno possibly would reduce future costs, but it would not eliminate a claim for back wages if Chandler's claim was valid. The record does not show when Adams learned that Chandler's claim was invalid, but the State of California did not deny Fletcher's claim until after the date of his termination, and there is nothing in the record to show that Adams knew of that denial until after Fletcher and Donati had been terminated. Therefore, as of the date of termination, Adams must have believed, or was fearful, that Chandler could support his claim that the Anaheim contract covered Bakersfield, and that transfer of Fletcher and Donati to Fresno would do no more than reduce future costs resulting from a higher wage scale. Whether Fletcher and Donati remained at Bakersfield or moved to Fresno, their union membership would be required." Under such circumstances Fletcher and Donati's union membership was immaterial, and clearly would not be a reason for closing the Bakersfield facility. Fletcher and Donati on August 23. Adams and Hamett attempted, without success, to have Fletcher and Donati accepted by the Fresno local. Thereafter, on September 9, Hamett took Fletcher to Local 87 for membership application, and picked up application papers which later were given to Donati. 685 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Respondent's decision to close the Bakersfield facility Adams testified that Respondent's business started a down trend in September or October 1974, and continued through 1975. That testimony is supported by Respon- dent's exhibits, including profit-and-loss statements and corporate statistics, and it is credited. Adams further testified that, during late 1974, Respondent's management began discussing the possibility of consolidating some operations, to reduce expenses, and to improve the Company's financial situation."8 Adams said some routes thereafter were consolidated, and in May 197519 the decision was made to move the Bakersfield routes to Fresno.2 0 He said that decision was communicated to Hamett in May 1975,21 and Hamett was told he would have to move from Modesto, whence he had been supervising Bakersfield and other routes, to Fresno. Adams testified that the plan to move the Bakersfield routes, and to transfer Hamett, next was discussed with Hamett in June 1975. Adams testimony relative to his discussions with Hamett in May and June was corroborated by Hamett, and it is credited. Hamett made the move from Modesto to Fresno about September 12.22 He credibly testified that some delay in moving was occasioned by difficulty in selling his Modesto house. Donati testified that, for a period of about 6 months prior to August or September 1975, there had been rumors, and he had been concerned, about the possibility of one or both of the routes being moved from Bakersfield. He said his concern principally was caused by Hamett's frequent and forceful exhortation to increase sales. Fletcher testified that he telephoned Adams the day before he signed a union authorization card on August 23,23 and was told: A. During that conversation, he said that within the next 30 days, it looked as if the routes in Bakersfield might be moved to Fresno, and if it was in fact moved to Fresno, we would have to move to retain our jobs in Fresno. I asked if the move did come who would pay for the moving expenses, and he said that they would be incurred by me. Fletcher said he and Donati visited Chandler the following day to inquire if Chandler had learned anything about the wage discrepancy between Anaheim and Bakersfield, and after a discussion Chandler suggested that Fletcher and Donati sign authorization cards. It has been found, above, that Chandler called Adams August 20 and discussed the wage situation. Fletcher said he asked Adams during the 5s Adams credibly testified that consolidation of the Bakersfield facility would result in elimination of overhead costs of approximately $1,000 per month, and that substantial administrative savings and advantages would be effected thereby. 19 Some delay was occasioned because Adams was in the hospital and off work 3 months due to a ruptured spinal disc. 20 Many customers (about 50 percent) served by Bakersfield formerly were served by the Fresno facility. 21 General Counsel argues that Fletcher's training in June 1975, after Respondent allegedly had decided to close the Bakersfield facility, negates Respondent's claim relative to the date Respondent decided to close Bakersfield. This argument by General Counsel is not accorded weight, telephone call he made to Adams on August 23, why the routes were going to be moved to Fresno and Adams replied, "they couldn't afford to pay the higher wage scale." Thus it is quite clear, and found, that Adams' reply to Fletcher was occasioned by Chandler's telephone call to Adams on August 20 wherein Chandler told Adams that the Anaheim contract applied to Respondent's Bakersfield operations. Adams' credited testimony shows that the date he selected for the move to Fresno was based entirely upon a desire to cut his losses as soon as possible. It developed that his fear of higher wages was groundless, since the Anaheim contract did not extend to Bakersfield; however, that fact is immaterial to the issues. Adams testified: Q. Did Chandler's intervention and filing of the wage claims, all of this, have any influence as to the actual decision to close and the date it was closed? A. Not the decision to close, but the date that we closed. Q. You closed earlier because of it? A. Yes. It is found that the decision to close the Bakersfield facility was made in May 1975, and that the date of the closing was accelerated because of Chandler's claim made to Adams, that Bakersfield was served by the Anaheim contract. Discussion The question thus is presented as to whether such action by Respondent constitutes a violation of the Act. This question is not a novel one. It has been before the Board and the courts a number of times and, although some inconsistency is apparent in older cases, the law presently makes it clear that acceleration of a plant closing, or a closing effected partially for union reasons, may be permissible if the closing itself primarily is because of economic reasons. A modern case that is instructive is that of McLoughlin Manufacturing Corporation, 164 NLRB 140 (1967). There the Board reversed the Trial Examiner's finding of an 8(aX3) violation, because economic consider- ations of the respondent were paramount; the union problem merely was the "last straw" which "tipped the scale" in making a decision to close a plant. The Board stated, inter alia: As found by the Trial Examiner, there is no evidence of opposition to the employees' exercise of their statutory rights. Nor is there evidence of overt hostility to the Union. Rather, Respondents have dealt amicably since the training was more than a year after Fletcher's date of hire, thus obviously not an indoctrination course. The training would be appropriate, regardless of where it was used. Further, there is nothing in the record to show that, as of June, there was any reason for Adams to doubt that Fletcher would decline to move to Fresno - the subject had not been discussed with him as of that date. 22 This move by Hamett was about 3 weeks prior to the date (October 3) when Fletcher and Donati were told they would have to move to Fresno. 23 Fletcher's testimony relative to this subject is confusing and uncertain, but the outline given here appears accurately to relate the chronology of events. 686 BRIDGFORD DISTRIBUTING CO. with the Union for many years. It was Respondents' economic and operational difficulties arising in part from an onerous contractual provision, and their inability to obtain relief therefrom and the Union's overall intransigent attitude with respect to the negotia- tion of a new agreement that appear to have been the determining factors in the decision to close the plant.2 4 In Lassing, supra, the Sixth Circuit was most emphatic on this subject when it stated, inter alia at 783: The Board contends that this case is not controlled by the ruling in the Adkins and Mahon cases because the respondent accelerated its proposed change in operations upon its learning that the three employees had joined the Union and before any demands for increased pay for said employees had been made upon it by the Union, and that such action constituted the discrimination found by the Board to exist. We do not agree. Although the Union had made no demand for increased pay, the evidence fully justified respondent's belief that such demands would be made and could not be met. * * * There is no evidence in the present case, and there is no contention made, that there was any anti-union background on the part of the respondent. Fundamen- tally, the change was made because of reasonably anticipated increased costs, regardless of whether this increased costs was caused by the advent of the Union or by some other factor entering into the picture. This did not constitute discrimination against the three employees with respect to their tenure of employment because of membership in the Union, within the provisions of Section 8(aX)(I) and (3) of the Act. N.L.R.B. v. Houston Chronicle Pub. Co. 5 Cir., 211 F.2d 848, 854. Following Lassing, the Second Circuit had occasion to face the same issue in N. LR.B. v. Rapid Bindery, Inc., and Frontier Bindery Corporation, 293 F.2d 170, 174 (C.A. 2 1961). Again, the respondent was considering a business close because of economic necessity, when the union entered the picture. Even though respondent admittedly was unhappy about the advent of the union, and even though that advent hastened the closing of the plant, the court held that Section 8(a)(3) had not been violated. The court stated: In those situations where a change or discontinuance of business operations is dictated by sound financial or economic reasons the courts have refused to find that §8(a)(3) has been violated even though the employer action may have been accelerated by union activity. N.L.R.B. v. Lassing, 6 Cir., 1960, 284 F.2d 781, certiorari denied 1961, 366 U.S. 909, 81 S. Ct. 1085, 6 24 See also N. LR.B. v. J. M. Lassing, et al., d/b/a Consumers Gasoline Stations, 284 F.2d 781 (C.A. 6, 1960), cert. denied 366 U.S. 909 (1961); Israel Taub d/b /a Dove Flocking and Screening Co., 145 NLRB 682 (196%3). 25 Textile Workers Union ofAmerica v. Darlingron Manufacturing Co., 380 U.S. 263 (1965). L.Ed.2d 235; N.LR.B. V. R.C. Mahon Co., 6 Cir., 1959, 269 F.2d 44, N.LR.B. v. Houston Chronicle Pub. Co., 5 Cir., 1954, 211 F.2d 848. As discussed above, the union membership of Fletcher and Donati was of secondary interest to Chandler. He was interested primarily in the Anaheim contract to Bakers- field, and he made it clear to Adams that he did not intend to back away from that proposition. He testified that he never told Adams that he later learned his position was wrong. Adams was not motivated by union animus, or by a desire to interfere with the Section 7 rights of Fletcher and Donati when he decided to accelerate a move already planned. His motivation was economic survival. Under such circumstances 25 it is clear, and found, that this allegation of the complaint is not supported by the evidence. B. Alleged Refusal To Bargain The complaint alleges that, since on or about August 23, 1975, Respondent unlawfully has refused to bargain with the Union and that, since on or about September 26, 1975, Respondent unlawfully has refused to recognize or meet with the Union and unilaterally has changed the terms and conditions of unit employees. General Counsel argues that Respondent's Bakersfield route salesmen constitute an appropriate unit for bargain- ing, based on Respondent's past practice, its past relation- ship with Teamsters locals, and the distance of the Bakersfield operation from the nearest appropriate unit. That argument is valid, and it is found that Respondent's Bakersfield route salesmen constitute an appropriate unit for collective bargaining.2 6 Respondent knew nothing about Fletcher and Donati's first visit to Chandler in early August. When Chandler called Adams August 20 he did not identify himself, or claim that he represented the employees, or ask that Respondent bargain about anything. He merely stated, in blunt language,2 7 that Respondent's Bakersfield operation was covered by the Anaheim contract, and that Respon- dent had been violating that contract's wage provisions. On August 22 Chandler wrote a letter to Allan Bridg- ford.2 8 The letter is ambiguous. The first paragraph is a flat statement that Respondent was violating "the terms and conditions of the current labor contract." The second paragraph, however, states there was a difference of opinion concerning application of the contract, as exhib- ited during the August 20 Chandler-Adams telephone call. The final paragraph states: I am in hopes we may clear this matter up without a serious problem. Would you be so kind as to straighten this matter out and I would like to hear from you in the near future as to your position regarding this matter. It is quite clear, and it is found, that the letter was a request to bargain about application of the contract. 26 P. Ballantine and Sons, 141 NLRB 1103(1963). 27 There are some discrepancies in the accounts of Chandler and Adams relative to what was said by each. Based on observation of the witnesses and the record, Adams is credited where such discrepancies occur. 28 G.C. Exh. 6. 687 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 23 Fletcher and Donati signed union authorization cards, at the request of Chandler. That fact never was related to Respondent by Fletcher, Donati or Chandler. On August 27 Allan Bridgford wrote to Chandler 29 and stated, inter alia, "we did not realize that your local was a member of the same council as the local in Orange County, with which we have a contract." Bridgford also stated, "However, I can see no reason why we shouldn't have a contract in Bakersfield, if you feel that this is the proper procedure." Finally, Bridgford stated "give us a few days to figure out this situation and we will get back to you concerning the contract. Maybe in the meantime you could send us a copy of the contract that you use in Bakersfield for Teamster drivers." That letter clearly is reaffirmation of Adams' position that the Anaheim contract did not apply to Bakersfield, and, equally clearly, it is an agreement to negotiate relative to Bakersfield. On August 29 Chandler wrote to Allan Bridgford,3 0 forwarded a copy of the Anaheim contract, reiterated his position that the contract then applied to Bakersfield and was being violated by Respondent, and concluded "Please state your position so we may resolve this matter." There was no further correspondence between Respon- dent and Local 87. On September 2 Adams told Fletcher that the Bakers- field operation was going to move to Fresno, and that he was on 30-day notice. Adams then offered Fletcher a job in Fresno at the same pay, and gave Fletcher a week to consider the move and to discuss the situation with his wife. On September 9 Hamett took Fletcher to see Chandler in order to sign an application for membership in Local 87, and picked up an application later given by Fletcher to Donati. On October 3, with no notice to Chandler or Local 87, Hamett told Fletcher and Donati that the Bakersfield operation was moving to Fresno, and offered both of them a job in Fresno.3 ' They declined and were given I-week's severance pay. The Bakersfield operation closed October 10. The foregoing makes it abundantly clear, and it is found, that, at least as of September 9, Local 87 was the exclusive representative of the Bakersfield employees, that such fact was well known by Respondent, and that there then was pending an unanswered request by Local 87 to negotiate the question of applicability of the Anaheim contract to Bakersfield. Under such circumstances, Respondent was obligated to notify and bargain with Local 87 relative to effects of the intended closing of the operation. Generally, the Board has held that an employer must bargain with employees concerning a partial discontin- uance or relocation of its business operations, as well as the effects thereof,3 2 although those decisions are not always in 29 G.C. Exh. 7. 30 G.C. Exh. 8. 31 General Counsel endeavored to cast doubt on thefides of Respondent in offering Fletcher and Donati continued employment. However, it is quite clear from all the testimony, including that of Fletcher and Donati, and it is found that the two received a bonafide offer from Respondent of continued employment in Fresno. 32 Burroughs Corporation, 214 NLRB 571 (1974); Royal Typewriter accord with views of circuit courts.33 However, the facts of this case differ substantially from the cases wherein the Board has so held. Here, (a) the decision to close the operation was made, solely because of economic necessity, in May, several months before the Union obtained authorization cards from Fletcher and Donati on August 23; (b) by the date Fletcher and Donati were told they must move in order to retain their jobs (October 3), their supervisor, Hamett, already had been moved to Fresno approximately 3 weeks. With the move thus having been decided upon, and partially effected, prior to the Union's interest in the employees having been communicated to Respondent, it would be patently improper to order Respondent to bargain about the decision it made in May. Thus, this case is brought within the ambit of law expounded in Royal Plating & Polishing Co., Inc., supra. The court there stated: We conclude that an employer faced with the economic necessity of either moving or consolidating the opera- tions of a failing business has no duty to bargain with the union respecting its decision to shut down. However, under circumstances such as these present- ed by the case at bar an employer is still under an obligation to notify the union of its intentions so that the union may be given an opportunity to bargain over the rights of the employees whose employment status will be altered by the managerial decision. N.LR.B. v. Rapid Bindery, Inc., 293 F.2d 170 (2nd Cir. 1961). See also N.LR.B. v. Lewis, 246 F.2d 886 (9th Cir. 1957); Shamrock Dairy, Inc., 119 NLRB 998 (1957), 124 NLRB 494 (1959), enforced sub nom., International Bhd. of Teamsters etc. v. N.LR.B., 108 U.S. App. D.C. 117, 280 F.2d 665, cert. denied 364 U.S. 892, 81 S.Ct. 224, 5 L.Ed.2d 188 (1960). Donati's attitude toward moving to Fresno is somewhat ambiguous, but it appears that he was guided at all times herein by Fletcher's thoughts and actions. Fletcher's principal concern, from the time he first learned of a possible move until the date he was informed that a move was required, including his discussion with Adams on September 2, was the cost of the move. Fletcher testified about the final discussion with Hamett: A. Dan [sic] just said that the decision had been made and that as of the following Friday, the routes would be moved to Fresno. And he again asked us if we wanted to move to Fresno to retain our positions with the company. I asked him again if I had to move would the moving expenses have to be incurred by myself, and he said yes, so I declined to move. Thus, it is clear that, had Respondent agreed to pay Fletcher's moving expenses, Fletcher, and most likely Company, A Division of Litton Business Systems, Inc., el al 209 NLRB 1006 (1974); Ozark Trailers, Incorporated, and/or Huteo Equipment Company, et al., 161 NLRB 561 (1966). 33 See, for example, N.L.R.B. v. Acme Industrial Products, Inc., 439 F.2d 40 (C.A. 6, 1971); N.LR.B. v. Royal Plating & Polishing Co., Inc., 350 F.2d 191 (C.A. 3, 1965); N.LR.B. v. Adams Dairy, Inc., 350 F.2d 108 (C.A. 8, 1965). 688 BRIDGFORD DISTRIBUTING CO. Donati also, would have accepted Respondent's offer and would have moved to Fresno. Direct and incidental expenses involved in the move would be substantial, especially in Fletcher's case. Fletcher would incur expenses in selling his house in Bakersfield, transporting himself and his family to Fresno, and obtaining a new house in Fresno. Seniority and other rights may be involved. Fletcher and Donati were given I week's severance pay, but is is possible that negotiated severance pay would be different. Such matters are the essence of bargaining. The Union was the representative of the employees at time of termination, and that fact was well known to Respondent. Fletcher and Donati were not familiar with the bargaining process. The Union represent- ed Respondent's employees at all its locations other than Bakersfield, and would be able to bargain for Fletcher and Donati against a background of knowledge and expertise. Respondent did not discuss the proposed move with Chandler, or give the Union an opportunity to bargain for Fletcher and Donati. That opportunity should have been given. Respondent argues that Chandler knew about the move before it was made, and waived, through inaction, his right to demand that the move be bargained. That argument is not persuasive. As shown above, Chandler asked Allan Bridgford in a letter dated August 29, "Please state your position so we may resolve this matter." The "matter" was whether the Anaheim contract extended to Bakersfield. That question inevitably would affect any proposal by Respondent to close its plant. Bridgford did not respond to the letter, thus the announcement of the move, approxi- mately a month after the letter was received, was made while there was a pending request to negotiate. Further, the rights here involved are those of Fletcher and Donati, who declined jobs in Fresno only because of Respondent's denial of moving expenses. They were deprived of union services which were sorely required, and it would be unjust to permit a waiver under such circumstances. It is found that the Union did not, as a matter of fact, waive its right to bargain with Respondent over the effects of the Bakersfield closing. C. Alleged Interrogation Paragraph 13 of the complaint alleges that, on or about August 20, Adams interrogated an employee about union activities and instructed that employee not to engage in union activities. Fletcher's version of this conversation with Adams is quoted above. As there noted, Chandler contradicted Fletcher's statement about Chandler asking to see Fletch- er's union card. Based on that contradiction, and on observation of the witnesses, Adams' version of this conversation is credited. Adams testified: Q. Did you speak with Mr. Fletcher after you received the August 29th telephone call? A. Yes, Arlin called in, either the next day or the day following, for a credit approval, and I heard the call and I jumped on the line. Q. What did you say? A. To ask him if anybody had approached him from the Union, that I had received this wild call - MR. COHEN: Just limit it to what was said in the phone call. JUDGE: Just what was said. THE WITNESS: And he said that somebody had approached him out on the route and asked to see his Union card, and he had told him he was non-union. Then I told him to stay out of it, that this was going to be a rough deal between this guy who was yelling around and there was obviously going to be some problems, and I didn't want him to be involved. MR. COHEN: I move to strike the last sentence. JUDGE: He said that is what he told him. MR. COHEN: I object. JUDGE: You told him this? THE wirNEss: Yes. JUDGE: All right. Motion will be denied as long as we restrict ourselves to just what was said and by whom. Q. (By Mr. Wolfram) Did you tell him not to sign anything? A. Not in those words, no. Q. Did you say it in other words? A. Not to get involved. Q. Did you tell him not to talk to Chandler? A. No. Q. Did you ask him whether he wanted to be represented by the Union? A. No. Q. Did you say anything to him regarding his job security? A. Yes. Q. How did that subject come up? A. Well, we were both worried about it at that moment, the situation - Q. Did he say something to you about being worried about something? A. I don't know whether he started or I did, I don't know what the first word was. Q. What did you say? A. I told him not to worry about his job, that the worst that could happen was that he could be moving. Adams had talked with Chandler prior to his conversa- tion with Fletcher, and it is clear that, when Adams talked with Fletcher, he limited his alleged "union" talk to matters related to Chandler's irate call. Since Chandler did not identify himself, or represent himself as an agent of the Union or Respondent's employees, and since he limited his conversation to a claim that Respondent was violating its contract, it was logical and natural for Adams to advise Fletcher to stand clear. This conversation was isolated, and in a context that is not consistent with restraint or coercion on the part of Adams. It came in the midst of a call Fletcher placed relative to a charge account. Adams did not talk with Fletcher at any other time about union matters. As discussed above, there is no evidence of Adams' or Respondent's union animus. Under such 689 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances Adams' statements are found not to be coercive, and not in violation of the Act.34 D. Alleged Statement by Hamett Paragraph 14 of the complaint alleges that, during the latter part of August, Hamett told an employee that Respondent would transfer work from Bakersfield because of the employees' union activities. General Counsel did not argue this issue in his brief. The employee referred to apparently is Donati, since the record does not support any statement of this nature made to Fletcher. Donati was a confusing witness, and apparently one with a poor memory. He testified that he and Fletcher met with Hamett on September 26 and had "just general discussion over the routes." After much probing and leading, Donati stated: Q. Did the subject of the union ever come up during those conversations? A. Yes. I asked him why, was it because of the union, and he said, "Yes." JUDGE: When did that occur? THE WITNESS: This occurred that Friday, the 26th. JUDGE: The 26th. September 26th? THE WITNESS: Yes, sir. Donati later said the statement may have been made by Hamett at some other time "or out on my route going to Tehachapi." Still later, on cross-examination, Donati again testified relative to the September 26 meeting with Fletcher and Hamett: A. Really, it was just general conversation, you know, nothing spectacular happened. Q. Was there any discussion about a Union? A. At that time no, I don't think Mr. Hamett knew anything about it, to be honest with you, because he didn't find out about our filing with the Labor Commission until that afternoon. Q. There was nothing said about the Union then? A. Not to my recollection, no. There may have been, but I can't remember right now, it is a long time ago. Again later, Donati said Hamett's alleged statement was made "a couple of days before September 26," prior to the meeting of September 26. Fletcher, who was said by Donati to be present at the meeting of September 26, did not corroborate Donati's statement about the routes being moved because of the Union. In view of such uncertainty and confusion, this testimony of Donati is not credited. Hamett denied having made the remark, and Hamett is credited. This allegation was not proved. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The Respondent's activities set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship 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. V. THE REMEDY General Counsel requested an order directing Respon- dent to reestablish its Bakersfield operation. Such an order would not be appropriate, for several reasons. First, it would be merely punitive, not remedial. Second, it would not be warranted, since the closing was based on financial reasons. Respondent is not motivated by union animus, and Respondent's only violation of the Act was its failure and refusal to negotiate with the Union concerning the effects of the closing. Finally, reopening would require that Respondent enter into new leases of buildings and equipment at Bakersfield, that it transfer or purchase trucks and equipment, that Hamett move again, and most onerous of all, it would require Respondent to reopen a facility that is a proved loser. Such a remedy is too severe. The Union represents Fletcher and Donati and should have been a party to negotiations with Respondent relative to job offers, moving costs, seniority, severance pay, and other matters involved in closing the facility at Bakersfield. An order requiring Respondent to bargain at this time about effects of the move will not be a futile gesture. To the contrary, as recognized by Allan Bridgford in his corre- spondence with Chandler, the Teamsters represents all of Respondent's route salesmen and drivers, in all six of Respondent's divisions. Respondent's principal managers are Teamsters members. There is a long history of successful bargaining between Respondent and the Team- sters. Finally, the record shows that Respondent in good faith offered Fletcher and Donati jobs in Fresno, and there is no showing of ill-will toward the two employees. It cannot be concluded, in such circumstances, that the Union will be unable to bargain with strength. An order to bargain about the effects of the closing is the appropriate remedy. Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. Bridgford Distributing Co., Respondent herein, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters and Food Processing Local Union No. 87, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 34 General Counsel did not argue this issue in his brief. 690 BRIDGFORD DISTRIBUTING CO. 3. The following unit is an appropriate unit within the meaning of Section 9(b) of the Act: All drivers employed by the Employer in Bakersfield, California; excluding all office clerical employees, guards and supervisors as defined in the Act. 4. The above-named labor organization is, and has been since August 23, 1975, the exclusive representative of all employees in the aforesaid appropriate unit, for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. Respondent engaged in unfair labor practices in violation of Section 8(aX)(5) of the Act by closing its Bakersfield, California, business operation without bar- gaining with the Union relative to the effects on the Bakersfield unit employees, of such closing. 6. 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.] 691