Strawsine Manufacturing Co., Inc.

STRAWSINE MFG. CO. Strawsine Manufacturing Company, Inc., Home Metal Products, Inc., Ventrola Manufacturing Company, Bel Air Home Products Corporation, Traverse Electric Products, Inc., a Single Em- ployer and Local 743, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Cases 7-CA-18001 and 7-CA-19464 23 June 1986 DECISION AND ORDER By MEMBERS DENNIS, JOHANSEN, AND BABSON On 23 December 1981 Administrative Law Judge Arline Pacht issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed cross-exceptions and a brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,I and conclusions, as modified,2 and to adopt the recom- mended Order as modified. 1. We agree with the judge that the Respondent violated Section 8(a)(3) and (1) of the Act by clos- ing the Corunna, Michigan plant and surreptitious- ly transferring the operations to Argos, Indiana, to escape union obligations at Corunna. Although the charge supporting the 8(a)(3) complaint allegation was filed more than 6 months after the alleged un- lawful conduct occurred,3 we find that Section 10(b) does not bar the complaint4 because the Re- spondent misrepresented company plans about clos- ing the Corunna facility and concealed from the Union the decision to relocate the Corunna oper- ations to Argos. The limitations period did not i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings E To correct an inadvertent error in the judge's decision, the word "Plano" should be substituted for "Corunna" in the third sentence of the paragraph "Strawsine First Moves to Piano, Texas " 3 The Union filed the 8(a)(3) charge 23 June 1981 in Case 7-CA- 19464 The charge relates to the Respondent's conduct that occurred about June 1980 when the Respondent announced it was closing the Cor- unna facility and consolidating it with Plano, Texas operations, and about September 1980 when the Respondent opened the Argos facility 4 During the hearing the Respondent requested the Board to grant spe- cial permission to appeal the judge's denial of its motion to dismiss, to strike, or for summary judgment on the ground the 8(a)(3) allegations are barred by Sec 10(b) On 24 July 1981 the Board denied permission to appeal, without prejudice to renewal of the motion upon filing of excep- tions We deny the renewed motion 553 begin to run until the Union had knowledge of the relocation decision, 5 and the Union filed the 8(a)(3) charge within a month of the time it learned the Respondent had opened the facility at Argos. 2. We also agree with the judge that the Re- spondent violated Section 8(a)(5) and (1) by failing to bargain about its decision to close the Corunna facility and relocate its operations. Where, as here, such a decision is motivated by antiunion reasons, the employer is not exempt from a bargaining obli- gation under First National Maintenance v. NLRB, 452 U.S. 666, 687-688 (1981), or Otis Elevator Co., 269 NLRB 891 fn. 4 (1984). See Mashkin Freight Lines, 272 NLRB 427 fn. 7 (1984). 3. We shall modify the judge's recommended remedy, to more fully effectuate the policies of the Act. We agree that a restoration order requiring the Respondent to return its operations from Argos to Corunna is inappropriate and that other reme- dies must be applied. We adopt the judge's recom- mendation that we order the Respondent to offer employees who were terminated at Corunna on or after 2 June 1980 substantially equivalent positions at Argos or any of its other plants, with traveling and moving expenses, and backpay. However, we modify the backpay period for those terminated Corunna employees who are unable to accept offers of employment that require moving, and extend it from the date of each employee's unlaw- ful termination to the date the employee secures substantially equivalent employment with another employer. We reject the judge's recommendation that we order the Respondent to bargain with the Union at the Argos plant, and condition the order to bargain at that location upon proof by the Union that it represents a majority of the employees in the ap- propriate unit at Argos.6 ORDER The National Labor Relations Board orders that the Respondent, Strawsine Manufacturing Compa- ny, Inc., Argos, Indiana, Home Metal Products, Inc., Plano, Texas, Ventrola Manufacturing Com- pany, Owesso, Michigan, Traverse Electric Prod- ucts, Inc., Traverse City, Michigan, and Bel Air Home Products Corporation, Owesso, Michigan, a single employer, its officers, agents, successors, and assigns, shall 1. Cease and desist from 5 See Ducane Heating Corp, 273 NLRB 1398 (1985), overruling, to the extent inconsistent, California Pacific Signs, 233 NLRB 450 (1977), which the judge cites, Garrett Railroad Car & Equipment, 275 NLRB 1032 (1985) 9 See Gourmet Foods, 270 NLRB 578 (1984), Garwin Corp, 169 NLRB 1030 (1968) 280 NLRB No. 63 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Refusing to bargain collectively, on request, with Local 743, International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America (UAW), as the exclusive rep- resentative of employees at Corunna, Michigan, in the following appropriate unit: All full-time and part-time production and maintenance employees including seasonal em- ployees and sweepers, but excluding office clerical, technical, professional, and sales em- ployees and guards and supervisors as defined in the Act. (b) Discouraging membership in the Union or any other union by terminating the employment of any of its employees or by discriminating in any other manner in regard to their hire and tenure of employment or any other term or condition of em- ployment. (c) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer to all employees who were terminated at the Corunna, Michigan plant on or after 2 June 1980, immediate and full reinstatement to their former positions or substantially equivalent posi- tions at the Argos, Indiana plant or any of its other plants, with necessary traveling and moving ex- penses for themselves and their families and house- hold effects, without prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Make whole the employees who were termi- nated at the Corunna, Michigan plant on or after 2 June 1980 for any loss of earnings they may have suffered as a result of the discrimination against them, as provided in the section of the judge's de- cision entitled "The Remedy," as modified. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) If the Respondent should resume its discon- tinued operations in Corunna, Michigan, bargain collectively, on request, with the Union as the ex- clusive representative of the employees in the ap- propriate unit and, if an agreement is reached, embody such understanding in a signed agreement. If the Respondent does not resume such operations, but continues to perform at Argos, Indiana, the op- erations formerly carried on in Corunna, Michigan, bargain, on request, with the Union as the exclu- sive representative of the employees in the appro- priate unit at Argos, Indiana, upon proof that a ma- jority of the employees in the Argos unit have des- ignated the Union as their exclusive representative. (e) On request made within 1 year from the date of this decision, immediately supply the Union a list of the names and addresses of all employees at the Argos, Indiana plant,and keep the list current for a 1-year period. (f) On request, immediately grant the Union rea- sonable access, for a 1-year period, to plant bulletin boards and all places where notices to employees are customarily posted at the Argos, Indiana plant. (g) Permit employees at the Argos, Indiana plant to have unrestricted access to union organizers during nonworking time on plant approaches and parking lots for a period of 1 year from the date of this decision, subject to such reasonable and non- discriminatory regulations as the Respondent may find necessary in the interest of plant efficiency and discipline, provided, however, that the regulations do not serve to thwart the employees in the exer- cise of the rights guaranteed them. (h) Send to each employee who was terminated at the Corunna, Michigan plant on or after 2 June 1980, by registered or certified mail, a letter offer- ing reinstatement and setting forth the Respond- ent's election as to where it will effect the rein- statement, and include in the letter a copy of the notice attached as an "Appendix." (i) Post at each of its places of business and plants, copies of the attached notice marked "Ap- pendix."' Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (j) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 7 If 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 Nation- al 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 " STRAWSINE MFG. CO. 555 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain, on request, with Local 743, International Union, United Automobile Aerospace and Agricultural Implement Workers of America (UAW) as the exclusive representative of employees at Corunna, Michigan, in the following appropriate unit: All full-time and part-time production and maintenance employees including seasonal em- ployees and sweepers, but excluding office clerical, technical, professional, and sales em- ployees and guards and supervisors as defined in the Act. WE WILL NOT discourage membership in the above Union, or any other union, by discriminating against our employees in regard to their hire and tenure of employment or any other term or condi- tion of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer to all employees who were termi- nated at the Corunna, Michigan plant on or after 2 June 1980 immediate and full reinstatement to their former positions or substantially equivalent posi- tions at our Argos, Indiana plant or any of our other plants, with necessary traveling and moving expenses for themselves and their families and household effects, without prejudice to their se- niority or other rights or privileges previously en- joyed. WE WILL make whole those employees for any loss of pay suffered as a result of discrimination against them. If we should resume the discontinued operation in Corunna, Michigan, WE WILL bargain, on re- quest, with the Union as the exclusive representa- tive of the employees in the appropriate unit. If we do not resume operations at Corunna, but continue to perform at Argos, Indiana, the operations for- merly carried on in Corunna, WE WILL bargain, on request, with the Union as the exclusive representa- tive of the employees in the appropriate unit at Argos upon proof that a majority of the employees in the Argos unit have designated the Union as their exclusive representative. WE WILL, on request made within 1 year from the date of the Board's decision, immediately supply the Union a list of the names and addresses of all employees at the Argos, Indiana plant and keep the list current for a 1-year period. WE WILL, on request, immediately grant the Union reasonable access, for a 1-year period, to plant bulletin boards and all places where notices to employees are customarily posted at the Argos, Indiana plant. WE WILL permit employees at the Argos, Indi- ana plant to have unrestricted access to union orga- nizers during nonworking time on plant approaches and parking lots for a period of 1 year from the date of the Board's decision, subject to such rea- sonable and nondiscriminatory regulations as we may find necessary in the interest of plant efficien- cy and discipline provided, however, that the regu- lations do not serve to thwart employees in the ex- ercise of the rights guaranteed them. WE WILL send to each employee who was termi- nated at the Corunna, Michigan plant on or after 2 June 1980, by registered or certified mail, a letter offering reinstatement and setting forth where we will effect the reinstatement, and include in the letter a copy of this notice. STRAWSINE MANUFACTURING COM- PANY, INC., HOME METAL PROD- UCTS, INC., VENTROLA MANUFAC- TURING COMPANY, BEL AIR HOME PRODUCTS CORPORATION, TRAVERSE ELECTRIC PRODUCTS, INC., A SINGLE EMPLOYER Karen R. Cordry, Esq., for the General Counsel. Les Weisbrod, Esq., of Dallas, Texas, for the Respondent. Samuel C. McKnight, Esq. (Klimist, McKnight & Sale), of Southfield, Michigan, for the Charging Party. DECISION STATEMENT OF THE CASE ARLINE PACHT, Administrative Law Judge. This case was tried before me on June 2, 3, and 4 in Burton, Michigan; July 13, 14, and 15 in Detroit, Michigan; and July 27 and 28, 1981, in Dallas Texas, on a charge filed on July 14, 1980, and a complaint, which issued on August 29, 1980, alleging that Respondent closed its Strawsine plant and terminated its employees there with- out prior notice or an opportunity to bargain with Local 743 (Union) in violation of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). Thereafter, a second charge was filed on June 23 and a complaint issued on July 2, 1981, in Case 7-CA-19464, alleging that by closing the Strawsine facility in Corunna, Michigan; announcing that it was consolidating operations in Plano, Texas; and thereafter opening a new Strawsine facility in 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Argos, Indiana, without prior notice or an opportunity to bargain about those decisions, Respondent violated Section 8(a)(1) and (3) of the Act. Concurrently, the General Counsel filed a motion to consolidate com- plaints, which was granted at the hearing on July 14. In opposition, Respondent moved to strike, dismiss, or in the alternative for summary judgment, on the grounds that the amended complaint was time-barred by Section 10(b) of the Act. I denied the motion finding that Sec- tion 10(b) does not bar complaints which, as here, are based on newly discovered evidence.' Respondent then moved for special permission to appeal this ruling to the Board and the General Counsel and the Charging Party filed oppositions thereto.2 Respondent also moved to transfer and/or sever the complaints. Although this motion, too, was denied, Respondent was granted an ex- tension of time to July 27, 1981, to prepare a defense to the amended complaint. Although all the parties were represented throughout the hearing, only the General Counsel and the Charging Party submitted posthearing briefs.3 On the entire record in this case4 and from my observation of the witnesses, I make the following FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a single-integrated enterprise comprised of a holding company, Bel Air Home Products, Inc., a Michigan corporation, engaged in the acquisition of stock ownership of other corporations, and the following four subsidiaries: (1) Strawsine Manufacturing Company, Inc., a Michi- gan corporation, which at all times material has main- tained an office and place of business in Corunna, Michi- gan, where until approximately May 12, 1980, it was en- gaged in the manufacture, distribution, and sale of air- moving equipment, range hoods, kitchen and bathroom exhaust fans, rooftop ventilators, gas stacks for hot water and heating furnaces, medicine and cosmetic boxes, and roofcaps for the mobile home and recreational vehicle in- dustry. Respondent Strawsine has, and continues to maintain, another plant in Argos, Indiana, where it is en- gaged in manufacturing most of the items that were pre- viously produced at the Corunna facility. Strawsine also leases warehouses in various States, including one in Elk- hart, Indiana. (2) Home Metal Products, Inc., a Texas corporation with an office and place of business in Plano, Texas, is ' See California Pacific Signs, 233 NLRB 450 (1977), Operating Engi- neers Local 825 (Building Contractors), 228 NLRB 276 (1977); V & B Builders, 227 NLRB 765 (1977), enfd 596 F 2d 378 (9th Cir 1979) 2 Respondent's special appeal is pending before the Board 3 By letter dated, September 23, 1981, counsel for Respondent, Les Weisbrod, advised the Board and the parties that he was withdrawing as counsel in the case because Respondent had terminated his services Weisbrod's letter has been marked as ALJ Exh I and is made a part of this record * Subsequent to the hearing, the General Counsel moved to correct the official transcript However, the language which she proposes to correct and her references to pages and lines do not at all conform to the text on similarly numbered pages in the copy of the transcript on which I relied Accordingly, I decline to rule on the motion and has been at all times material engaged in the manu- facture, sale, and distribution of air-moving equipment and related products for the residential building industry. (3) Traverse Electric Products, Inc., a Michigan cor- poration with its principal office and place of business in Traverse City, Michigan, is and has been at all times ma- terial engaged in the manufacture, sale, and distribution of electric motors and fans for the residential building and mobile home industries. (4) Ventrola Manufacturing Company, a Michigan cor- poration with an office and place of business in Long Beach, Mississippi, is at all times material engaged in the manufacture, sale, and distribution of air-moving equip- ment for the residential building and mobile home indus- tries. During the year ending December 31, 1979, a period representative of its operations during all times material, Respondent Strawsine in the course and conduct of its business operations manufactured, sold, and distributed from its Corunna, Michigan plant products valued in excess of $500,000 of which products valued in excess of $50,000 were shipped from the Corunna plant directly to points located outside the State of Michigan. At all times material, Companies have been affiliated business enterprises with common ownership, directors and management, and central control of the labor poli- cies affecting employees of each operation, and have held themselves out to the public as a single-integrated business enterprise. Respondent does not contest the jurisdiction of the Board and I find by virtue of its operations as described above, Respondent is a single employer and is now, and has been at all times material, jointly and severly en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Local 743, International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW) is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction and Issues As described in greater detail below, the events giving rise to the instant controversy initially involved the Strawsine facility, which from 1958 to June 1980 was lo- cated in Corunna, Michigan. As sole shareholder of Bel Air, Billy Loflin effectively controlled each of the Com- panies including Strawsine, which he acquired in 1978. It was the only Company in the Bel Air group whose em- ployees were unionized and protected by a collective- bargaining agreement. 5 After engaging in a series of ne- gotiating meetings, the parties failed to reach agreement on the terms of the new contract and on the day follow- ing its expiration, May 13, 1980, the employees were 5 Respondent's Ventrola plant was previously located in Owasso, Michigan . Several weeks after the UAW won a representation election there, Ventrola moved to its present quarters in Long Beach, Mississippi. STRAWSINE MFG. CO. 557 locked out. On June 2 the Respondent announced its de- cision to close the Strawsine plant in Corunna and con- solidate its operations with those of the Home Metal Products plant in Piano, Texas. Several months later, without notice to the Union, Respondent opened a new Strawsine facility in Argos , Indiana. The principal questions which emerge from these facts are: (1) whether Respondent was obligated to bargain over its decision to close the Strawsine facility in Cor- unna, Michigan, and to move the work from there to other facilities; 6 (2) whether, if it was so obligated, it in fact failed to bargain with the Charging Party in viola- tion of Section 8(a)(5) and (1) of the Act; and (3) wheth- er by terminating its employees at the Strawsine facility in Corunna and opening a new Strawsine facility in Indi- ana Respondent discriminated against its employees in violation of Section 8(aX3) and (1) of the Act. The final issue concerns the scope of the remedy for the violations which are found hereinafter. B. Contract Negotiations Preceding the Lockout In March 1980 the United Auto Workers, which had represented Strawsine's production and maintenance workers since 1970, served notice of an intent to amend the terms of the current collective-bargaining agreement which was due to expire on May 12. A series of negoti- ating sessions ensued during the next several months at which management was represented by its counsel Rich- ard Way and Gary Miller and Beulah Clark, Strawsine's vice president of operations and purchasing director, re- spectively. The Union's bargaining committee was led by the Local's International business representative Henry, joined by employees Olcott, Ashford, and Mead. The parties met on numerous occasions over the next several months, reaching agreement on all matters except those concerning pay raises. The Company's response to the Union's first proposal was that the demands were eco- nomically unfeasible and the Company would have to close. Henry's initial reaction was that if the Company intended to shut down it should do so immediately so that the employees could find other work. However, at a subsequent meeting, Henry asked Way if the Company was pleading poverty to which Way responded, "No, I have money set aside for negotiations." In April the bargaining committee became aware that equipment was being removed from the plant and ques- tioned management about a possible plant closing. Miller explained that machinery was being transported to a small warehouse and manufacturing facility which Strawsine maintained in Elkhart, Indiana, to prevent losing customers during the strike. Henry then assured him that they had no intention of striking.? In early May Loflin appeared at one of the bargaining meetings and he, too, assured the bargaining committee that he had no intention of closing the Corunna facility. 6 Respondent's duty to bargain over the effects of its decision to close the Corunna plant is not at issue in this case It is, of course, well settled that Respondent has such an obligation See First National Corp. v NLRB, 452 U S 666 (1981) In 1977, prior to Loflin's acquisition of Strawsine, the Local had en- gaged in a protracted strike On the day before the contract's expiration, Respond- ent submitted an economic counterproposal which left the parties divided by no more than 50 cents over a 3- year period. The Union made a counterproposal which management rejected. Henry then stated he would submit the Company's final offer to the membership that evening. Way stated that if it were not approved there would be a lockout the following day. Again Henry as- sured him that the employees would not strike. That evening the union membership rejected the Company's offer. After Henry communicated this decision to Way, some last-minute offers and counteroffers were ex- changed but no agreement was reached. The following morning, approximately 65 to 70 employees arrived at the plant to find they were locked out. C. The Corunna Plant Closes On May 27, while the lockout continued, Loflin, Miller, and Kurt Cordingly, then Strawsine's president, took a fateful plane trip from Corunna to Plano, Texas, at which time they charted Strawsine's future. Without referring to a single financial document, they concluded that Strawsine was losing more money than the other companies and that its operations would have to be con- solidated with those of Home Metal Products in Plano, Texas. On the first day of his direct examination, Loflin asserted that the move to Plano was merely a temporary expedient undertaken until matters could be worked out with the Union. However, after an adjournment in the hearing, he modified his testimony to conform it to Mil- ler's and averred that the move to Plano was intended to be permanent. Whatever their long-range intentions may have been, the upshot of this airborne meeting was that a decision was made to close Strawsine's Corunna plant. After returning to Corunna from Plano, Miller called Henry on May 30 and, instead of telling him about the decision to close, merely asked if the Union's position had changed. When he learned it had not, he said a meeting was unnecessary. Henry then advised Miller, as he previously told Way, that he would be attending a UAW convention for the next week, and that Olcott could be contacted during his absence. On May 31 Miller telephoned Olcott and asked him, as he had asked Henry, where the Union stood on the Company's last proposal. Olcott replied that there was no revision in the Union's position but requested a meeting to get the em- ployees back to work. Miller agreed to a meeting on June 2 but conceded he made no mention of the plant closing during the telephone exchange. Olcott, Ashford, and Mead described the June 2 meet- ing as being short and to the point. After Way arrived with Beulah Clark, he distributed a letter which in its en- tirety announced that: I have been advised by the management of Strawsine Manufacturing Company, a Michigan corporation located at 503 Shiawassee Street, Cor- unna, Michigan, that effective June 30, 1980, the fa- cility will be closed for economic reasons. This letter provides you with notice of the clos- ing, and Strawsine Manufacturing Company is 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD available, upon request, to discuss the effects of the closing with you and Local 743. Olcott stated that he was shocked at this turn of events particularly because the bargaining committee had come to the June 2 meeting prepared to make concessions. His immediate response to Way was, "[W]e have come to bargain over the contract and get our people back to work." When Way replied that the decision was final, Olcott stated he would set a meeting at a later date after Henry returned. The balance of the meeting was spent discussing other questions concerning vacation, unem- ployment benefits, and retirement pay for various indi- viduals.8 The union members uniformly contended that Way never raised the possibility of bargaining about the decision to close. None of the employees recalled either that Way mentioned anything about the consolidation of the Corunna and Plano plants although Ashford admitted that at one point he expressed an interest in going to Texas. Way offered a vastly different account of this meeting. He alleged at the hearing that he explained that the plant was closing because it had been losing money for the past 18 months and that the Company was going to con- solidate with Home Metal Products. He insisted that he offered to bargain about the decision to close and its ef- fects but that the employees failed to react to his sugges- tion. Instead, they each simply stated that they were not surprised at the closure, and then addressed problems having to do with various entitlements of the soon-to-be- terminated employees. The testimonial conflict about what occurred at the June 2 meeting lends itself to easy resolution: Although Way probably made some mention of merging Strawsine and Home Metal Products because of adverse economic conditions,9 I conclude that he did not offer to bargain over the decision to close the Corunna plant and rejected the Charging Party's overtures to discuss how the facili- ty could be kept open. Concrete evidence of Way's omis- sion is supplied by his letter which documented only Strawsine's willingness to bargain over the effects of the closing. If Way was the experienced labor lawyer he represented himself to be, he could have set any doubts to rest by mentioning the offer to bargain about the deci- sion in as express terms as he did with regard to the ef- fects. Given the importance of this issue, his explanation that it would have added many more pages to the letter is absurd. It is clear that an offer to bargain about the decision to close was purposely omitted from this letter. Bolstering this conclusion is the fact that information about the plant closure was concealed from Henry prior to his departure. Way knew that Henry was an experi- enced negotiator for the same local which recently granted wage concessions to a nearby business firm. If Way had any authority to negotiate about a decision to close, he certainly would have advised Henry immediate- ly about that decision and encouraged his presence at the 8 Ashford and Mead corroborated Olcott's account. 9 Although the members of the bargaining committee did not recall Way alluding to a consolidation, Ashford admitted that he was willing to move to Texas. He probably would not have made such a statement unless Way had referred to Strawsine's moving there June 2 meeting. Instead, he participated in the collusion to prevent the senior negotiator from taking part in the negotiations as long as possible. It is also significant that Clark, who was subpoenaed by the Respondent to cor- roborate Way's testimony, failed to support him about the most crucial point in his testimony. When asked what Way said Clark stated: "I think he [Way] told them that we would be willing to bargain about the effects of clos- ing the plant." Clark did not recall that any of the bar- gaining committee members asked about keeping the plant open. Viewed in their entirety, Clark's and Way's statements contrast markedly with the mutually corrobo- rative testimony of Olcott, Ashford, and Mead. Any de- viations in the employees' generally consistent accounts went only to fairly insignificant details. D. Events After June 2 The parties also offered contradictory descriptions of the subsequent contacts between Henry and Way. Henry testified that on his return to Corunna, Way's letter an- nouncing the plant closure awaited him. He called Way and voiced the Union's interest in discussing concessions to keep the plant open. Way replied to Henry, as he had to the members of the bargaining committee, that the de- cision to close was final, but agreed to meet on June 18 anyway. At that meeting, Henry, in the presence of the bargaining committee, again asked Way what could be done to keep the plant open. Way's response was the same: the decision to close was final but he was prepared to discuss the effects of that decision. Unprepared to pro- ceed, Henry sought a recess during which time the nego- tiating committee formulated a number of proposals and submitted them to Way. t 0 At the conclusion of this meeting, Henry advised Way that, although he was be- ginning a 4-week vacation, he would remain available and could be contacted either at his office or at home. Henry testified that he subsequently received a message from Way on June 23 scheduling a meeting on June 25. Way later called and canceled the June 25 meeting, re- scheduling it for July 1. Henry's secretary made notes of Way's telephone message which were received into evi- dence. On July 1 Henry telephoned Way after waiting an hour and a half for him to arrive. Way at first suggested that he had forgotten the meeting, but then deferred to Henry's speculation that his absence was due to his cli- ent's failure to pay him. Not surprisingly, Way's testimony clashes with that of Henry. He stated that Henry focused on the effects of the plant closure at the June 18 meeting and said nothing about keeping the plant open. He further stated that he scheduled the next meeting for June 24 so that he would have an opportunity to review the Union's proposals with management. On June 24, Way alleged that he phoned Henry at his union office and during a one-half hour telephone conversation, reviewed management's po- sition with respect to each of the Union's eight propos- als. Curiously, although Way maintained computer 10 Henry's account of this meeting is confirmed in all important re- spects by Olcott, Ashford, and Mead STRAWSINE MFG. CO. records of his billable time that contained entries by the quarter hour, there was no notation of a telephone call to Henry on June 24. Way also denied having any further contact with Henry on July 1. Here, too, the Charging Party offered a far more plau- sible account of the meetings with Respondent's repre- sentative than did Way. Even if I were to believe that on June 2 none of the employees sought to bargain about the decision to close the Corunna plant, it is inconceiv- able that Henry, a man seasoned in collective bargaining, would not have uttered a word about keeping the plant open in his subsequent meeting and in telephone calls with Way. Moreover, objective evidence supports the Charging Party's version of events. Henry had documen- tation that Way canceled their next scheduled meeting where as Way had absolutely no record of a half hour call to Henry on the day he claimed the call occurred. Way's dential of the July 1 telephone conversation flies in the face of the credible evidence offered not only by Henry but also by Olcott, Ashford, and Mead, who heard a sufficient portion of Henry's conversation to verify his testimony. Based on the Company's June 2 letter and the entire sequence of events which followed, I am convinced that Respondent presented the decision to close the Coruna operations as final and that the Charging Party's efforts to bargain about that decision were rejected. Consequently, on July 14, 1980, the Union's attorney, Sam McKnight, filed a charge with the Board accusing Respondent of refusing to bargain about its decision to close the Coruna plant. Although Way acknowledged receiving a copy of the charge several days later, he nev- ertheless chose to ignore it. His next contact was not, as it should have been, with the Union's counsel and the International representative. Instead, he called Olcott on July 17 to present the Company's position with respect to certain questions that Olcott had posed regarding un- employment compensation. Prompted by a letter from McKnight requesting bar- gaining, a final meeting was held between the parties on August 15, 1980, at which the Union's attorney Henry and the other bargaining committee members met with Way, t' Miller, and David Space, Bel Air's vice presi- dent and financial treasurer for Strawsine. McKnight asked whether Strawsine would have remained open if the Union had accepted the Company's final proposal. Receiving no response, he put the Company to the test by announcing that the Union would accept the Compa- ny's offer. When Way responded that the decision to close the plant was irrevocable, McKnight insisted on discussing that decision and requested information to assess the Company's assertions concerning its economic plight. Respondent's cortege then left the meeting with- out mentioning to the Union's representatives that Straw- sine was in the process of moving to a new location in Argos, Indiana. E. Strawsine First Moves to Plano, Texas By June 1 the equipment, which was stored on vans at the Elkhart facility, arrived at the Home Metal Products " Way's role as Respondent's counsel was terminated in August 1980 559 plant in Plano, Texas. Included in the first shipment of machinery from Corunna were 15 or 16 small welding machines and 2 small hydraulic presses. In mid-June, after electrical wiring and cement beds were in place, two large hydraulic presses, used to manufacture illumi- domes (mobile home skylights), also were installed at the Corunna plant. According to Jack Collinsworth, Bel Air's general foreman, by the second week of June, Strawsine range hoods were in production. Shortly thereafter, vents, medicine, and cosmetic boxes also were being produced in Plano. By Miller's estimate, no more than 25 to 40 percent of the items previously manufac- tured in Corunna were transferred to Plano during the summer months. Moreover, administrative and clerical functions previously performed at Corunna also were shifted to the Texas headquarters. Collinsworth further testified that toward the end of June, it became apparent that there was inadequate storage space in Plano for the raw materials needed to produce both the Home Metal and Strawsine range hoods. In the beginning of July, Loflin advised Robert Jarvis, Bel Air's executive vice president, that Strawsine would move to Argos, Indiana. The move itself, Jarvis stated, began in late July or early August. F. Strawsine Relocates in Argos Ignoring his own previous testimony that the move to Plano was merely an interim measure pending resolution of the strike, Loflin subsequently claimed that the con- solidation in Piano was intended to be permanent, but that in July unforeseen circumstances arose, which com- pelled locating the Strawsine facility in Argos, Indiana. According to Loflin, sales orders for both Strawsine and Home Metal Products suddenly picked up in July there- by causing materials storage problems, thus mandating expansion. At this juncture, Loflin fortuitously discov- ered that Ritzwood, a company in Argos , Indiana, in which he had only a one-third interest and no manage- ment control, had ceased doing business and went into bankruptcy in July or August 1980. With the Ritzwood facility available, Loflin entered into an agreement with the town of Argos, and the State Exchange Bank for the rent-free use of the property. Loflin then alleged that Strawsine resumed its operations in Argos sometime in the latter part of 1980. Some of the production previous- ly transferred from Corunna to Plano remained in Texas but, as Miller acknowledged, 65 to 75 percent of the products produced in Corunna subsequently went into production in Argos. Loflin's recital of the events leading to the demise of Ritzwood and Strawsine's relocation in its building in Argos contained misrepresentations of epic proportions. Documents filed with a bankruptcy court in Michigan establish the truth of the matter as follows: Loflin ac- quired a company called Select Industries of Indiana in 1977, which he sold to Ritzwood, retaining at the outset at least a one-third interest in the new enterprise. He was never a silent partner, as he claimed. Introduced into evi- dence was a series of promissory notes drawn in favor of the State Exchange Bank signed by Loflin and Co-owner 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James Vandam.' 2 The evidence also shows that Ritz- wood ceased doing business in June 1979 and was forced into involuntary bankruptcy in July, a year earlier than testified to by Loflin. Contrary to Loflin's disclaimer of control, the evidence shows that he became controlling if not sole spokesman for Ritzwood sometime in Decem- ber 1979. In March 1980 the court granted Ritzwood one last continuance to reorganize, conditioned on the Com- pany's posting a $125,000 bond with the State Exchange Bank by May 27. Loflin failed to pay the bond by that date. Instead, he was airborne and purportedly deciding to close Strawsine. Three days later, the State Exchange Bank filed a motion urging the court to issue an order declaring Ritzwood bankrupt and its property aban- doned. The court promptly granted the Bank's motion on June 2, the same day that Way advised the Union that Strawsine was closing its doors in Corunna. Clearly, Loflin's dissembling about his involvement in the bank- ruptcy proceedings was motivated by his desire to con- ceal the curious timing of these events. The motivation for his conduct will be discussed below. IV. DISCUSSIONS AND CONCLUSIONS A. Applicable Legal Principles In its recent landmark decision, First National Corp. v. NLRB, 452 U.S. 666 (1981), the Supreme Court held that the partial closing of a business, motivated purely by economic factors, is not a subject of mandatory bargain- ing under Section 8(d) of the Act. However, the Court pointed out that its ruling did not reach other managerial decisions such as plant relocations or subcontracting. Moreover, the Court specifically exempted "partial clos- ings which were motivated by anti-union animus." Id. at fn. 22. Thus, the long-settled rule that an employer vio- lates Section 8(a)(3) if it relocates or contracts out its op- erations with a purpose to discriminate against its em- ployees for exercising the right to organize and bargain collectively remains in tact. See Ladies Garment Workers Local 57 v. NLRB, 374 F.2d 295, 298 (D.C. Cir. 1967), cert. denied 387 U.S. 942; Town & Country Mfg. Co. v. NLRB, 316 F.2d 846, 847 (5th Cir. 1963). B. The Closure of the Corunna Plant and Relocation in Indiana Violates Section 8(a)(3) and (1) Here the General Counsel and the Charging Party contend that the instant case is not governed by First National because Respondent's closure of the Corunna facility and subsequent relocation in Argos was motivat- ed by a desire to rid itself of any obligation to deal with the employees' collective-bargaining representative. Re- spondent counters that dire economic conditions com- pelled the closure of the Corunna plant and that it was prepared to bargain about the decision to close, but the Union waived its right to negotiate . It further contends that the subsequent transfer of Strawsine to Argos, Indi- ana, was an independent event necessitated by legitimate and unanticipated business considerations . If Respond- 12 Loflin signed several of these notes as Ritzwood's secretary treasur- er. One such loan, executed in April 1979 for $470,072 53 and payable in 3 months, was not an amount which Loflm might have forgotten ent's contentions were founded in fact, then the holding in First National would control the outcome of this case. However, I conclude that Respondent's arguments do not survive careful consideration. At the outset, Respondent submits that Strawsine was closed solely because of economic constraints . Indeed, Loflin claimed that Strawsine was losing more money than any of his other companies. The record flatly contradicts this assertion . Income tax returns for 19791 3 establish that Strawsine's losses for that year were $100,000 compared to an $800,000 loss for Ventrola. To be sure, the tax forms show that Strawsine was not financially healthy. But with Ventrola's econom- ic situation eight times worse, Loflin's selection of Strawsine for closure, made without any reference to economic analyses, raises a substantial question about the bona fides of Respondent's motivation. Respondent also asserted that the consolidation of op- erations in Plano would be cost effective in that duplica- tion of administrative functions would be eliminated, and overhead costs for maintaining separate plants would be reduced and improved cash flow generated by the sale of the Corunna plant and its equipment. Moreover, Re- spondent contended that Strawsine would be closer to its customers in an industry that was expanding in the Southwest. In consolidating sales and clerical functions in Plano, Respondent did realize some savings. However, when Strawsine relocated in Argos some 2 to 3 months later, the administrative functions remained in Plano, thus demonstrating that the benefits achieved by transferring those functions to Plano could have been achieved with- out jeopardizing the jobs of the production employees in Corunna. Respondent's assertion that the move to Plano would bring Strawsine closer to its customers is so patently pre- textual that it deserves scant attention. The record shows that Strawsine's major customers were in the Midwest before the time that Strawsine left Corunna, during the time that it functioned in part in Plano and while it con- tinued its operations in Argos. Respondent's purported need to sell the Corunna prop- erty to improve its cash flow is equally unimpressive. Not the slightest effort was made to sell the facility until 3 months after its closure. In fact the only proof that any effort was made to sell the facility comes from a letter dated December 8, 1980, to a prospective buyer. The plant was not listed for sale until March 1981 and, at the time of this hearing, it still was unsold.14 Throughout all this time, Respondent continued to have mortgage obli- gations and at least minimal maintenance payments, ex- penses, which were not considered in calculating the ad- vantages of consolidation. In fact, much of Respondent's analysis of the cost benefits attained by transferring func- tions to Plano were built on the incorrect premise that the physical facilities in Corunna were sold. More signifi- cantly, many of the benefits that Respondent claimed '$ At the time of this hearing, Respondent had not yet filed tax returns for 1980 14 A professional appraisal completed in June 1981 valued the proper- ty, without the equipment at $1084 STRAWSINE MFG. CO.' 561 were realized by the partial consolidation in Plano were completely reversed when it relocated in Argos several months later. Thus, the alleged need to "pull in its horns" was contradicted by its expansion-in Argos. Its ostensible need to be closer to its markets suddenly van- ished as did any savings which were to accrue by having raw materials shipped to Texas. Respondent's expecta- tion that the sale of the Corunna facility would generate a cash flow was replaced by a new indebtedness created by the establishment of the Argos plant. In an attempt to cure these transparent contradictions, Respondent invented a theory that certain events oc- curred in July that made the shift to Argos in the fall of 1980 a sound economic alternative. Its contentions in support of this theory were illogical and based on _half- truths as well as outright misrepresentations. Thus, Respondent claimed that a sudden upsurge in sales for both Home Metal and Strawsine goods oc- curred in July which placed a burden on the amount of available storage space in the Plano facility. However, Respondent failed to introduce any documentation of this remarkable and unanticipated increase in its sales. In fact, Respondent unwittingly supplied evidence contra- dicting this assertion by producing a chart which showed sales plummeting during the summer months at the very time that Loflin's alleged orders were increasing. 15 Fur- ther, while a bank auditor was reviewing Respondent's records, Loflin explained to him that the low level of sales during the summer months was attributable to Strawsine's relocation from Michigan to Indiana. More- over, several longtime employees at the Plano plant testi- fied that lack of space was apparent almost immediately after the partial consolidation and that it was caused principally by the lack of storage space for the steel used to produce the range hoods. Because steel was ordered in advance on the basis of market projections, Respond- ent had to be fully aware of how much storage would be needed for it before the move to Plano. It is fair to infer, therefore, that Respondent gambled on operating in cramped conditions in Plano, believing that the consoli- dation would be for only a short period of time. Indeed, Loflin may have testified truthfully that Plano was con- ceived as a temporary expedient, but not because he had the end in view of returning to Corunna. Loflin's misrepresentations about his role in the Ritz- wood bankruptcy and his lack of knowledge about when that facility became available lend added weight to the conclusion that Respondent decided in May to relocate in Argos. As found above, Loflin was solely in charge of Ritzwood's affairs in the spring of 1980 and was deeply involved in the bankruptcy proceedings. He knew that by failing to furnish the $125,000 bond, Ritzwood would be forced into involuntary bankruptcy, discharged of its former debts, and that its facility would become avail- able. During the identical time period, Loflin decided to close Strawsine. It would be naive to assume that the timing of these events was coincidental. Rather, given the risks Loflin was willing to take to conceal the curi- ous parallels; an inference arises that Loflin decided to close the Strawsine facility in Corunna in May after he realized that the Argos facility would be available. This is the only plausible explanation for Loflin's attempt to place the opening of the Argos plant at a date remote in time from the closure of the Corunna facility. Even beyond Loflin's deceit, there is abundant evi- dence that belies Respondent's contention that the deci- sion to relocate in Argos was made in July after it became clear that consolidation at Plano was ill-con- ceived. First, a senior Be] Air official testified that the decision to move to Argos was announced in the begin- ning of July. It is apparent that such a decision had to be considered prior to the time it was announced. However, Respondent supplied the most compelling proof of when the move took place by introducing into the record charts based on its payroll records that showed some Strawsine employees were assigned to the Argos plant in August, and that by September' 57 employees were working there. Moreover, on October 14, 1980, the Argos Economic Development Commission promulgated a resolution authorizing the issuance of industrial bonds to finance Strawsine's acquisition of. the Ritzwood facili- ty to insure employment for 150 employees. 16 Factories cannot suddenly begin to function with 57 employees, nor can municipal governments prepare, propose, and adopt resolutions without advance planning. Therefore, it is apparent that the decision to move to Argos was made well before September when Strawsine already was a going concern in Indiana. All the evidence out- lined above points in one direction: the decision to relo- cate in Argos was made by the end of May and was the reason Respondent closed the Corunna plant. Respond- ent purposely concealed from the Union the decision to relocate. Instead, it deliberately misled the Charging Party into believing that Strawsine was transferring some of its operations to Texas. In a final and futile effort to prove that Argos did not open until October or November, Respondent introduced a document on the last day of the hearing that showed two large hydraulic presses were shipped from Plano to Argos in October. However, these presses were used only in the manufacture of illumidomes. Therefore, even if illumidomes were not produced in Argos prior to Oc- tober, this proves nothing about when many of the other items Strawsine regularly manufactured at Corunna went into production at the Argos plant. Miller conceded that materials. and machinery were transferred directly from Corunna to Argos. Another management official conced- ed the move took place in August. Yet, Respondent failed to submit in response to the General Counsel's sub- poenaed and oral requests documentation that would es- tablish when, in fact, such equipment was shipped. Miller admitted that records were maintained regarding each of the moves except for the bill of lading for the hydraulic presses in October and drivers' logs going up to July 1980, no other documentation was produced. Respond- ent's failure to provide these records was not inadvertent nor can it be excused. Given its many other deceits, the 16 The maximum number of employees at the Strawsme plant in Cor- unna was approximately 110 (see R Exh . 6). That 150 employees were planned for the Argos facility suggests that the partial consolidation at 15 This chart, marked as R Exh 15, is admitted into evidence. Plano was viewed as a temporary measure 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failure to furnish these records becomes part of a pattern. I am convinced that the records were purposely with- held. By failing to furnish documentation, which should have been within Respondent's possession and control, an inference is warranted that had it been produced, it would not have supported Respondent's contentions. Pa- cific Coast International Meat Co., 248 NLRB 1376, 1381- 1382 (1980); B & L Plumbing, 243 NLRB 1016, 1022 (1979). Accordingly, I conclude that Respondent pro- duced only those documents that would support its posi- tion that the Argos plant opened in October and that if all the requested material was furnished, it would have shown that other equipment was transported much sooner, most likely in early August when the Argos plant was being readied for opening. Having failed to show that an expansion of its oper- ations was necessary in July and that the move to Argos was accomplished only in the latter part of the fall, Re- spondent next tried to prove with an equal lack of suc- cess that moving to Argos was economically justified. In making this effort, it is apparent that little consideration was given to returning to Corunna. Most notable among the economies achieved by relo- cating, according to Respondent, was that Strawsine oc- cupied the Argos facility rent free. This claim was valid, but only for a limited period of time, for in March 1981, Loftin obtained a $1,500,000 loan from the State Ex- change Bank to purchase the Argos facility , repayments to commence on June 1 . At the same time, Respondent was still obliged to meet monthly payments on the Strawsine plant where the mortgage was less than $500,000, at interest rates presumably lower than the 70 percent of prime negotiated for the Argos plant. More- over, Respondent's purported thrift in moving to Argos did not take into account the obvious costs of preparing the facility for occupancy or training new employees compared with the savings that would be realized by re- turning to a fully equipped building and an experienced labor force. In addition, Respondent suggested that it was not subject to an Indiana corporate income tax. It quickly withdrew its assertion when the General Counsel introduced proof to the contrary . Respondent also point- ed to savings in workmen's compensation payments, but conceded that the rates in Indiana, as in Michigan, are based on experience factors ; that is, the length of time an employer functions in a state . Therefore, the lower initial cost in Indiana could be expected to rise with the pas- sage of time.17 It is true that no concrete evidence exists in this case of Respondent's overt hostility to the Union: Loflin ac- quired Strawsine knowing that its employees were repre- sented by a union and bargained collectively up to the 11th hour. 18 However, an employer need not trumpet its wrongdoing to provide evidence of its discriminatory motivation. See Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966). The facts of this case speak ' a R. Exh 13, a comparison between the amounts owed in Indiana and Michigan for workmen's compensation, is admitted into evidence 16 Of course, the closure of Ventrola's Owasso plant in 1979, several weeks after the UAW won an election there, raises a question whether this was the first time Respondent moved to a nonumonized location to escape its bargaining obligations. for themselves: Respondent claimed that it needed to continue serving its customers and then promptly locked out its employees; it claimed that it was necessary to consolidate operations to service customers in the South and yet a few months later moved to Inidana to serve its major customers in the Midwest. It claimed it needed to reduce its size, yet expanded; it claimed a need to sell its Corunna facility and the equipment housed therein, yet made no effort to find a buyer; it alleged that it was pre- pared to bargain over its decision to close, but never mentioned the imminent opening in August of the Argos facility. In the final analysis, the excuses offered by Respond- ent to justify its conduct are flawed and unconvincing. Strawsine's economic problems were substantial but they did not enter into Respondent's decision-making process. See Limestone Apparel Corp., 255 NLRB 722 (1981). The only variable that can explain why Respondent would abandon a facility in one community and relocate in an- other less than 200 miles away some 3 months later is the presence of the Union in Corunna and its absence in Argos. Given the secrecy shrouding the Argos venture, Loflin's extraordinary misrepresentations, and the contra- dictory rationalizations presented, the conclusion be- comes inescapable that when bargaining collapsed Re- spondent devised a way to escape its obligations to the Union by ceasing to do business in Corunna and surrepti- tiously continuing its operations at a different , nonunion- ized site. It is clear that Strawsine's Argos facility was the prototypical runaway shop. I find, therefore, that by closing its Corunna plant and terminating the employees there to defeat the Union, Respondent violated Section 8(a)(3) and (1) of the Act. See Ramos Iron Works, 234 NLRB 896, 903-904 (1978); Garwin Corp., 153 NLRB 664, 677, 680 (1965), enfd. as modified 374 F.2d 295 (D.C. Cir. 1967); Industrial Fabricating, 119 NLRB 162, 172 (1957). C. Respondent Failed to Satisfy Its Bargaining Obligation The Supreme Court made clear in First National, supra, that the employer 's "decision to halt work at this specific location represented a significant change in peti- tioner's operations, a change not unlike opening a new line of business or going out of business entirely." How- ever, where, as here, Respondent did not go out of busi- ness permanently but clandestinely continued its oper- ations at a new location, the governing principles stem from Fibreboard Corp. v. NLRB, 379 U.S. 203 ( 1964). There, the Supreme Court, affirming decisions of the Board, held that "the replacement of employees in the existing bargaining unit with those of an independent contractor to do the same work under similar conditions of employment, was a mandatory subject of bargaining." Fibreboard, supra at 215. The Fibreboard doctrine has been applied not only to replacement subcontracting, but also to analogous situa- tions involving plant relocation and partial terminations of operations. The Board recognized that an employer's decision to relocate a portion of its operation is as vital a concern to labor and management as is the decision to STRAWSINE MFG. CO. subcontract and is "peculiarly suitable for resolution within the collective-bargaining framework." Ozark Trailers, 161 NLRB 561 (1966); Weltronic Co. v NLRB, 419 F.2d 1120 (6th Cir. 1969), cert. denied 398 U.S. 938 (1970); Garwin Corp., supra at 655, 680. This rule was also applied to the interplant transfer of a unit in Ameri- can Needle & Novelty Co., 206 NLRB 534 (1973), and reaffirmed by the Board as recently as June 1981 in Park-Ohio Industries, 257 NLRB 413 (1981), the first de- cision on the issue since First National, supra. There is no question here that the Company notified the Union of its intent to close the Strawsine plant and in all likelihood also indicated that some of the work would be transferred to Texas. However, as I found above, the Company refused to acquiesce to the Union's request to bargain about its decision. What is more, it is undisputed that the Company failed to notify the Union of its deci- sion to relocate in Argos, a community some 200 miles away from the Corunna plant. Indeed, neither in June when it was developing plans to relocate, nor at the time when it was actually in the process of moving to Argos, did it ever advise the Union of its intent to relocate. Even if Respondent's version of events were accepted at face value; that is, that only in July was it compelled to reconsider the wisdom of its decision to consolidate in Piano, there still was sufficient time to bargain with the Union about returning to Corunna. Nothing irrevocable had occurred since the June 2 closure-the plant was not sold, most of the equipment was intact, and the Union was prepared to accept the Company's last wage offer. Yet, when the Union urged Respondent to reopen the plant, the answer was that it was too late. Respondent's course of conduct reveals that it acted in continuing dis- regard of its obligation to afford its employees the pro- tection of good-faith bargaining. Respondent argues, however, that the Union waived any right it may have had by failing to specifically re- quest that the Company bargain over its decision to ter- minate the Corunna operations. A union of course may waive its statutory right to bargain about changes in terms and conditions of employment, but such waivers may not be lightly inferred. Rather, they must be "clear and unmistakeable." Park-Ohio Industries, supra; Univer- sal Security Instruments, 250 NLRB 661, 662 (1980). I found above that employee chairman of the bargaining committee and the Local's International representative both sought to keep the plant open. Accordingly, I reject Respondent's contention that the Union unequivocally waived its right to be consulted and to negotiate about the changes in terms and conditions of employment. Fur- ther it is difficult to understand how the Union can be regarded as having waived the right to negotiate over a decision which was announced as final. See ABC Trans- National Transport v. NLRB, 642 F.2d 675 fn. 6 (3d Cir. 1981). In the final analysis, the obligation to give the Union an opportunity to bargain concerning its move to Argos cannot be discharged by giving the Union false notice of a fictitious intent to cease doing business in the Corunna area. "Good faith bargaining necessarily re- quires that claims made by either bargainer should be honest claims." NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152 (1956). Respondent could not have been more dis- 563 honest. Its misrepresentations and concealment was the antithesis of good-faith bargaining and precluded any possibility that an alternative to closing the plant could have been agreed on. "[A]lthough it is not possible to say whether a satisfactory solution could be reached, na- tional labor policy is founded upon the congressional de- termination that the chances are good enough to warrant subjecting such issues to the process of collective negoti- ation." Fibreboard Corp., supra at 214. Certainly no satis- factory solution can be reached when notice and an op- portunity to negotiate are withheld. Accordingly, I con- clude that the Company violated Section 8(a)(5) and (1) of the Act. On the basis of the foregoing findings of fact and on the entire record in this case, I make the following CONCLUSIONS OF LAW 1. Respondent constitutes a single-integrated employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and the Union is a labor organization within the meaning of Section 2(5) of the Act. 2. All full-time and regular part-time production and maintenance employees, including seasonal employees and sweepers employed by Respondent Strawsine locat- ed in Argos, Indiana; but excluding office clerical, tech- nical, professional and sales employees and guards and supervisors as defined in the Act constitute an appropri- ate unit for collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times relevant herein, the Union has been the exclusive representative, for the purposes of collective bargaining within the meaning of Section 9(a) of the Act of the employees in the aforesaid unit at Respondent's Strawsine plants in Corunna, Michigan, and Argos, Indi- ana. 4. Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally and without consultation with the Union closing the Corunna, Michigan plant and remov- ing its operations there to Argos, Indiana. 5. Respondent violated Section 8(a)(3) and (1) of the Act by closing the Corunna plant and relocating it in Argos, Indiana, thereby terminating the employment of its employees, to deprive them of their rights guaranteed by Section 7 of the Act and to avoid bargaining and oth- erwise dealing with the Union as the collective-bargain- ing representative of the employees. 6. The aforesaid conduct constitutes unfair labor prac- tices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Respondent having stipulated that it is a single-inte- grated employer, I shall recommend that Bel Air and each of its companies shall be held jointly and severally liable for effectuating the remedial provisions of the Order herein recommended. Accordingly, having found that Respondent engaged in certain unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In tailoring a remedy to fit the wrongs committed here, I am mindful that the Board's general view, en- dorsed strongly by the General Counsel and the Charg- ing Party, is that a restoration of the status quo ante is required unless such a remedy causes undue economic hardship. Compare Weather Tamer, Inc., 253 NLRB 293 fn. 3 (1980), with Great Chinese American Sewing Co., 227 NLRB 1670 (1977). The Board stressed in Weather Tamer that "the wrongdoer rather than the innocent victim shall bear the hardships of the unlawful action ... unless the wrongdoer can demonstrate that its con- tinued viability would be endangered." Id. Although I found that Respondent closed its Corunna plant in order to avoid having to contend with the Union, the evidence of record here convinces me that Respondent's overall fiscal situation has degeneratd since the time that it closed the Corunna plant. By May 1981 it showed a net deficit of $218,000, a greater loss than that experienced by the other Bel Air entities. The reestablishment of that plant would impose financial burdens on Respondent that at this time it can hardly endure. Any further financial drain on Respondent's limited resources such as those which would necessarily be generated by relocating in corunna would inure to neither Respondent's nor its former employees' benefit. 19 Short of reestablishing the Corunna plant, there is a range of other remedies the Board has approved to recreate as nearly as possible the situation , which ob- tained at the time, Respondent should have bargained. First among these, I shall order that Respondent offer all employees discriminated against as a result of the closure of the Strawsine plant in Corunna, Michigan , on June 2, 1980, and its removal to Argos, Indiana, reinstatement to their former or substantially equivalent positions at the Argos plant, or any of its other plants, without prejudice to the employees' seniority and other rights and privi- leges, dismissing if necessary any employees hired at those plants after the date that the Corunna facility closed.20 Further, Respondent shall offer to pay the em- ployees traveling and moving expenses for themselves and their families and household effects from Corunna to Argos or any other of its plants. In addition, I recom- mend that Respondents make whole the employees re- 19 To acknowledge that Respondent is in grave economic circum- stances in no way diminishes my previous finding that the relocation in Argos was not economically compelled To the contrary, if Respondent had considered its bleak financial posture prior to relocating in Indiana, that move never would have been contemplated . Because I find that a reopening of the Corunna plant would be unduly burdensome and jeop. ardize Respondent's continued viability , I shall not recommend such re- medial action See National Family Opinion, 246 NLRB 521 (1979), Great Chinese American Sewing Co., supra. 20 Some Strawsme employees were laid off early in 1980 apparently for genuine economic reasons. Therefore, they are not properly included in this proposed remedy. ferred to above for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to the amount each normally would have earned from the date he was terminated as a result of the decision to relocate in Argos to the date of a valid offer of reinstatement, less his net earnings during the period. Of course, if Re- spondent decides to resume its operations in Corunna and offers to reinstate the above employees to their same or substantially equivalent positions , its liability will cease as of the date of such offer . Backpay shall be based on the earnings that these employees normally would have received during the applicable period, less any net interim earnings, and shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon computed in the manner set forth in Florida Steel Corp., 231 NLRB 651 (1977).21 In Garwin Corp., supra at 665-667, the Board recog- nized that a bargaining order conditioned on the Union's showing it had obtained a majority at the new facility would in all likelihood enable Respondent to achieve its primary legal objective; i.e., to escape bargaining. There- fore, to make certain that Respondent did not benefit from the fruits of their unlawful conduct by remaining an unorganized plant, the Board ordered Respondent to recognize and bargain with the Union without further re- quiring the Union to reestablish its representative status. Accordingly, and for the reasons set forth in the Garwin case, I, too, shall recommend that Respondent be re- quired to bargain with the Union as the representative of the employees in the appropriate unit at the Argos, Indi- ana plant.22 If on compliance with the recommended Order herein, the Union can reestablish its majority at the Indiana plant, the normal contract bar rule shall apply. If, on the other hand, the Union is unable to rees- tablish its majority, I recommend that any collective-bar- gaining agreement resulting from its recommended Order to bargain shall be deemed to act as a bar to a timely petition filed pursuant to Section 9(c)(1)(A) of the Act, for a period of only 1 year from the date of execution of such contract. See also Universal Security Instruments, supra. Because of the character and scope of the unfair labor practices engaged in by Respondent, I will recommend that it cease and desist from in any other manner inter- fering with, restraining, and coercing their employees in the exercise of the rights guaranteed them by Section 7 of the Act. [Recommended Order omitted from publication.] 2 1 See generally Isis Plumbing Co, 138 NLRB 716 (1962). 22 The court of appeals denied enforcement to that portion of the Board's Order which called for recognition of the Union before it estab- lished its representative status at the new location . See Ladies Garment Workers Local 57 v. NLRB, 374 F.2d 295 (D.C. Cit. 1967).