Armour And Co.

824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Armour and Company and United Food and Com- mercial Workers Union, AFL-CIO, Local 73A. Case 30-CA-6299 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND STEPHENS On 30 June 1983 Administrative Law Judge Ber- nard Ries issued the attached decision. The Re- spondent and the General Counsel each filed ex- ceptions and a supporting 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, 2 1 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. 2 As indicated in Olin Corp , 268 NLRB 573, 574 (1984), the Board finds deferral to arbitration appropriate if the arbitrator has adequately considered the unfair labor practice For the Board to reject deferral, the party seeking rejection must show that the contract issue is not factually parallel to the unfair labor practice issue, and that the arbitrator was not presented generally with the facts relevant to resolving the unfair labor practice Here, the sole issue decided by the arbitrator was whether the Respondent breached arts . 19 and 25 of the parties' contract when, upon closing its plant, it allocated the separation and vacation pay due employ- ees for the purpose of determining their eligibility for unemployment compensation. The arbitrator determined that "there is nothing in the contract which specifically barred such allocation," and denied the Union's grievance The issue before the Board is whether the Respond- ent, by refusing to bargain with the Union about the subject of allocating serverance and vacation pay, and by taking unilateral action with respect to allocation, violated Sec 8(a)(5) and (1) of the Act This issue requires a determination of whether the Union has waived its statutory right to bargain about allocation , and whether the Respondent has bargained The Respondent contends, inter alts, that by reading together arts 19 and 25 of the contract it is evident that the Union waived its statutory right to engage in effects bargaining concerning the subject allocation, and that since the arbitrator reviewed both of these provisions in render- ing his decision, the arbitrator necessarily found "a definitive waiver on the part of the Union " Specifically, the Respondent contends that the ex- istence of language in art 25 requiring the parties to modify their "Tech- nical Adjustment Plan" as necessary to avoid disqualifying recipients from unemployment benefits shows that "[t]he parties knew how to pro- vide for mandatory discussion regarding the disqualification of employ- ment compensation benefits in their agreement ," and that the absence of such language in art 19 concerning the computation of separation and vacation benefits establishes a waiver of discussion on these subjects We find the evidence clear that the question of waiver by the Union was not presented to or considered by the arbitrator The Respondent never presented the above waiver argument to the arbitrator To the con- trary, it argued that art 25 "was not relevant to this case " and the arbi- trator essentially agreed . The arbitrator considered waiver only to the extent that he found no evidence to indicate that the Respondent bar- gained away or waived its right to allocate separation pay under the un- employment compensation laws of Wisconsin, he declined "under the guise of interpretation" to add such restrictive language to the parties' agreement when the parties themselves had not done so The arbitrator's stated unwillingness to imply waiver where none was express completely undercuts any claim that the arbitrator , if only by implication, found and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent , Armour and Company, Green Bay, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the Order. union waiver. Concerning whether the Respondent met its obligation to bargain regarding the effect of the plant's closure, the evidence also shows that the arbitrator did not consider this question The arbitrator's uncontested determination that the Respondent was not contractually prohibited from allocating separation and vacation pay is neither conclu- sive of the statutory issue in this case nor inconsistent with a finding that the Respondent has breached its statutory obligation to bargain Accord- ingly, we find that the contract issue resolved by the arbitrator is not fac- tually parallel to the statutory issue before the Board and that dismissal of the complaint under the Board 's deferral policies is not warranted Melissa A. Cherney, Esq., for the General Counsel. Norbert E. Anderson, Esq., of Phoenix, Arizona, for the Respondent. DECISION BERNARD RIES, Administrative Law Judge. This matter was tried in Milwaukee , Wisconsin, on March 16, 1983. At issue is whether Respondent violated Section 8(a)(5) of the Act in 1980 by refusing to bargain with the Charging Party about a mandatory subject of bargaining. Briefs have been filed by the General Counsel and Re- spondent.) Having reviewed the record and the briefs, I make the following findings of fact , 2 conclusions of law, and recommendations. STATEMENT OF THE CASE I. RELEVANT FACTS For many years, Respondent recognized the Charging Party as the collective-bargaining representative of the employees at its meatpacking plant in Green Bay, Wis- consin. In 1980 Respondent decided to close the plant and, as required by the bargaining agreement then in effect, in April gave the Charging Party 6 months' ad- vance notice of its intention to terminate operations on October 31 , 1980.3 The subject of "allocation" of severance and vacation pay is central to this case , and an explanation of that concept is in order at this point. Under Wisconsin law, when an employee files a claim for unemployment com- pensation, the State Job Service Office sends his last em- ployers a form (UC-203) on which they are required to 1 Counsel for General Counsel has also filed a letter noting , on behalf of all parties, that a written stipulation of facts referred to at the hearing was inadvertently not offered in evidence , and requesting that the stipula- tion be received It is, accordingly, received as J Exh 1, and J Exhs A through G, which are intended to be attachments to the stipulation, are redesignated J Exhs 1-A through 1-G 2 Certain errors in the transcript are noted and corrected 2 All dates hereafter refer to 1980, unless otherwise indicated 280 NLRB No. 96 ARMOUR & CO. fill out essential information concerning the exemployee's employment with them . On the basis of the information so provided, the office determines the right of the appli- cant to receive unemployment compensation.4 Wisconsin law provides that an employee's receipt of unemployment benefits may be affected by the manner in which an employer chooses to treat vacation and separa- tion pay given to the terminated employee. Under the statute, such payments "shall, for benefit purposes, be treated as wages" for given weeks after the termination of employment if the employer opts to abide by the stat- utory criteria that control such treatment. If the employ- er does choose to comply with those criteria, the "allo- cation" of such pay to weeks following termination may well result (depending on the amounts allocated) in the employee being deemed ineligible for unemployment compensation in those weeks The conditions for so allo- cating vacation pay and termination allowances are para- phrased and construed, in an employer's handbook issued by the Wisconsin Department of Industry, Labor and Human Relations , as follows: Dismissal, termination or severance pay is treated as "wages" for any week(s) if: 1. The employee knew or should have known that the pay was assigned to a specific week(s), 2. It was definitely allocated and payable prior to the close of that week (so that nothing will prevent payment), 3. It was assigned at the employee 's approximate weekly wage rate or at a rate set forth by union agreement, or a company practice which has been consistently used, and 4 The employee has due notice of that fact (i e., by letter, posted notice or union agreement). The handbook sets out similar conditions for the treat- ment of vacation pay as posttermination weekly "wages."5 It is clear from the record that, if he chooses not to, an employer need not allocate to posttermination periods any vacation or severance pay that has been given to his former employees. If he does not allocate, of course, em- ployees meeting the statutory qualifications will then be able to immediately draw unemployment benefits. Under the terms of the bargaining agreement in effect in 1980, Respondent's Green Bay employees were enti- tled to receive accumulated vacation pay and severance pay on the occasion of the plant closing, and they chose to take such payments in a lump sum. Gordon Loehr, a business representative for the Charging Party, spoke to Respondent' s plant manager, Robert Grell, in early August about two matters relating to the October closing One question raised by Loehr 4 There is also another form with a confusingly similar designation, UC-23, which is used for verifying specific facts 5 In explaining item 3, it would appear that an examiner for the Job Service Division was plainly correct when he stated , in an appeal deci- sion involving the present situation entered in February 1981, that "the primary legislative purpose was to prevent an employer from unduly pro- longing the period of ineligibility for unemployment benefits by artificial- ly allocating vacation and termination pay at amounts just above benefit rates " 825 was whether Respondent would allow Wisconsin unem- ployment compensation representatives to come on the plant premises to register the workers for compensation. The other was, according to Loehr's testimony, whether Respondent "had intentions of allocating severance and vacation pay."s Grell, who had only recently come to the Green Bay plant, said that he could not answer either question, and he suggested that Loehr contact John D . Forst, Respondent's director of employee rela- tions in Phoenix, Arizona. On August 8 Loehr sent the following letter to Forst I would like the opportunity to discuss with your company your position on the filing of UC-23 [sic] forms, as it relates to earnings, prior to your plant closing in an attempt to eliminate or minimize any misunderstandings. I have been in contact with the Job Services of- fices of Brown County, and if your company raises no objections, they would be willing to register for unemployment compensation on the premises, at a mutually agreeable time and place. Loehr could not remember receiving a response from Forst, but he was not positive on that score. Forst re- called that he telephoned Loehr shortly after receipt of the letter, advising him (1) that Respondent could not permit the Job Service representatives on the premises "from the liability standpoint," and (2) that he would dis- cuss with Loehr the allocation matter when he "got to Green Bay for the closing," because he "didn't really know enough about it " On September 30 Forst and other Respondent repre- sentatives came to Green Bay for 3 days of interviews with the employees regarding, inter alia, transfer to other plants Just prior to the interview process, Loehr again brought up the issues of onsite registration for unemploy- ment compensation and "the allocation of severance pay, vacation pay " Concerning the former, Forst stated that such registration would not be permitted ; concerning the latter, Forst said that "he didn't have an answer to that, he would get back to [Loehr] in two or three weeks." There was some further discussion of the allocation matter According to Loehr, a Union International repre- sentative in attendance said that he did not understand why there was even a question about allocation because "the Company had never allocated before" in cases of plant closing . Apparently, the subject also arose again during the course of the employee interviews, when a question would be raised regarding entitlement to unem- ployment compensation Forst testified that Loehr's testi- mony as set out just above was a "correct" account of the discussion, but he added that Loehr had said, in ex- pressing the hope that Respondent did not allocate, that "if you do I think we'll beat you," referring to another 5 A stipulation of facts agreed to by the parties is, however, less specif- ic, saying only that Loehr asked Grell "how he intended to handle unem- ployment compensation," wording also testified to by Grell The precise words are not important here, although , if necessary , I would be inclined to credit Loehr 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer whom the Union had prevented from allocat- ing. Loehr heard nothing further from Forst on the ques- tion of allocation. However, on November 6 and 7, when the employees went to the then-closed plant to pick up their final checks, they were presented with forms dated November 6 and entitled "Employer Alloca- tion of Vacation Pay and Separation Pay." The forms succinctly explained the relevant Wisconsin law and stated that they were intended to constitute "due notice" to the employees that their vacation check and their sep- aration check "has been allocated" to specified weeks.' The forms further stated that if the employee "claim[s] Unemployment Compensation for any of these weeks, you MUST REPORT this vacation pay and separation pay on your weekly claim form." Loehr was quickly notified by bargaining unit employ- ees of their receipt of these forms, but he made no direct effort to discuss their content with Forst. Instead, in No- vember or December 1980, an administrative appeal from the denial of unemployment benefits to 58 employ- ees was begun and, in that same time period, a grievance was filed pursuant to the grievance-arbitration procedure of the bargaining agreement . Neither effort was success- ful. Also, on January 27, 1981, the Union filed an unfair labor practice charge alleging that Respondent "has re- fused and continues to refuse to bargain in good faith by unilaterally allocating the severance pay of its employees employed at the employer's Green Bay, Wisconsin, facil- ity to unemployment compensation benefits without notice to and bargaining with Local 73A, United Food and Commercial Workers International Union, AFL- CIO & CLC." II. DISCUSSION The complaint alleges that Respondent refused to bar- gain in violation of Section 8(a)(5) when it failed to re- spond to the Union's requests for bargaining about allo- cation of severance pay on August 8 and September 30 and unilaterally announced to employees, about Novem- ber 6, that it had decided to allocate such payments. Re- spondent raises several defenses, on the merits and other- wise. Respondent's initial position is that "neither unemploy- ment compensation nor information supplied to the State with respect thereto is a matter of mandatory bargain- ing." This contention requires consideration of the scope of Section 8(d) of the Act, which defines the obligation to "bargain collectively" as "confer[ring] in good faith with respect to wages, hours, and other terms and condi- tions of employment." 7 The sample form in evidence, pertaining to veteran employee Dorner, shows that Respondent allocated his 1980 vacation pay, in the amount of $487 06, to the second week of November, his accrued (pre- 1980) vacation pay to weeks in November and December, and his separa- tion pay (totaling $27,077 20) to the period from December through April 17, 1982 Based on such an allocation , Dorner apparently would not have been ineligible for unemployment compensation benefits until April 1982 An exhibit in the record indicates , however, that Dorner's disqualifica- tion was the most lengthy of the 58 employees who appealed their find- ing of ineligibility There is no longer any doubt that the foregoing clause encompasses negotiation about benefits that will be en- joyed by employees only at or after the termination of their employment status. Thus, in Inland Steel Co., 77 NLRB 1, 4 (1948), enfd. 170 F.2d 247 (7th Cir. 1948), the Board held that the term "wages" must be construed "to include emoluments of value, like pension and insur- ance benefits, which may accrue to employees out of their employment relationship."a The Board has, in like vein, held that when a plant is closed, unions must be af- forded "the opportunity to bargain over the impact and effect of that decision on unit employees." Burgmeyer Bros., Inc., 254 NLRB 1027, 1028 (1981), and cases cited at fn. 5 thereof. "Impact and effect" is, of course, hardly self-defining; in this area, the Court of Appeals for the Third Circuit has referred to "[b]argainable issues such as severance pay, seniority and pensions, among others," as being "necessarily of particular relevance and impor- tance." NLRB. v. Royal Plating Co., 350 F.2d 191, 196 (3d Cir. 1965). It is true, as Respondent contends, that unemployment compensation benefits have been deemed "plainly not earnings" for purposes of computing backpay awards under the Act, Gullett Gin Co. v. NLRB, 340 U.S. 361, 363 (1950), but that construction seems beside the point in the present context. The Supreme Court simply held in Gullett that the Board had the power to determine that such benefits were "collateral" in character, and that the failure to consider the benefits in computing a back- pay award did not make employees more than whole, any more than the failure to give consideration to collat- eral losses made them less than whole. The question here presented, however, is whether Re- spondent should be required to bargain about the exer- cise of the power to affect the value of the severance and vacation pay provided for by the bargaining agree- ment; by choosing to allocate such pay to weeks for which employees make compensation claims, an employ- er can thereby effectively nullify such claims, and by choosing not to so allocate it, it can thereby confer a pal- pable benefit on the employees. It would seem that to ask the question is to answer it. The issue of allocation is plainly of substantial economic import to the employees-a decision to allocate can ef- fectively debase or enhance the worth of the severance and vacation pay. Meaningful authority over allocation is, as the record demonstrates, vested exclusively in the employer.9 8 In addition, the Board believed that retirement plans were also sub- sumed in the phrase "conditions of employment " The Court of Appeals for the Seventh Circuit agreed with both conclusions. 170 F.2d at 251. B Accordingly, Respondent's brief is, as a practical matter, incorrect in stating that "the payment of unemployment benefits is a matter exclusive- ly within the province of the State" and that " [t]he determination of eli- gibility of each and every employee was solely and exclusively that of the State of Wisconsin " As earlier shown, the statute provides that if ter- mination pay is allocated by the employer according to given criteria, such pay "shall, for benefit purposes, be treated as wages," and the offi- cial state regulation similarly provides that termination pay "is treated as 'wages"' if those criteria are satisfied Thus, it is obvious that employers exercise the controlling authority over this subject Continued ARMOUR & CO In my view, the exercise of Respondent's power to al- locate is a mandatory subject of bargaining, affecting as it does the real value of the benefits conferred by the bargaining agreement.10 The only case I have found that is at all similar points to that conclusion. In Sheltering Pines Convalescent Hospital, 255 NLRB 1195 (1981), the State of California enacted a law that increased state payments to nursing facilities for a 4-month period in 1978 and that required that all such increased reimburse- ments be paid out in additional salaries and benefits to nonadministrative personnel. The Board (Member Zim- merman dissenting on a different point) held that the re- quired distribution of state funds by the facilities, which were in effect acting as involuntary pay agents of the State, was a bargainable subject. The case seems to hold that when an employer is empowered to take a specific action that affects the economic well being of its employ- ees, the manner in which it takes that action (and here whether to take the action) is a mandatory subject of bargaining. Citing Jacobs Mfg. Co., 94 NLRB 1214 (1951), enfd. 196 F.2d 680 (2d Cir. 1952), Respondent next argues that because "the Union contended before the Arbitrator [that] the matter in issue was one bargained for between the parties and which the collective-bargaining agree- Respondent argues on brief that in filling out the forms forwarded to it by the State as employee claims were filed, the portion of that form which was to be checked if the employer questioned the eligibility of the claimant "was left blank and the employer at no time ever took any posi- tion with the State that claimants were ineligible for unemployment com- pensation" (Tr 81-82) The cited testimony is not quite that detailed Q (By Mr Anderson) Mr Forst, did the Company ever take a position with the Wisconsin Employment Compensation Commission that any employee at the Green Bay plant was disqualified for unem- ployment compensation A Did we take the position Q Yes A No, sir In any event, assuming that Respondent did in fact leave unchecked the box on the forms that would indicate that it "question[ed] the eligibil- ity of this employee to receive benefits based on employment with you," part III of the state handbook makes clear that "Eligibility Questions" is a term of art, and allocation of severance or vacation pay is not one of the "Eligibility Phrases" (such as discharge for misconduct, quit, lost li- cense) that makes an employee "ineligible" for unemployment benefits Moreover, whatever Respondent may have been thinking about in check- ing or not checking the box on the form, there is no question on this record that Respondent hoped, desired, intended, contemplated, and ex- pected that the vacation and severance pay allocation would preclude payment of compensation claims to employees to the extent possible Nor is the arbitrator' s decision determinative here The fact that the arbitrator held that "there was nothing in the Contract which specifically barred such allocation" is not a conclusion that the Union contractually waived the right to bargain about allocation Respondent's contention that "the Board is bound by the determination of the arbitration" is in- supportable in view of the rule in Suburban Motor Freight, 247 NLRB 146, 147 (1980), which holds that deferral to an arbitration award is inap- propriate "unless the unfair labor practice issue before the Board was both presented to and considered by the arbitrator " Here, the arbitrator noted that Respondent had argued to him that "the Arbitrator had no authority to expand the nature of the grievance filed or to decide the fed- eral and/or state matters raised by the Union at the Arbitration hearing," and he thereupon concluded that he had "no authority to decide the va- cation pay or the unfair labor practice issue raised by the Union at the Arbitration hearing " 10 It also may be forcefully argued, as does counsel for the General Counsel, that unemployment benefits are indeed " emoluments of value" that "accrue to employees out of their employment relationship," Inland Steel Co, supra, because the right to such benefits arises from the em- ployment work experience 827 ment controlled, it necessarily follows that under estab- lished Board decision, neither party had any further obli- gation to bargain during the term of the labor agree- ment." Because, however, the arbitrator concluded, con- trary to the Union, that the contract did not in fact re- quire the Company to allocate, and because there is no indication in the record that the arbitrator was in error, the Union's unsuccessful contention before the arbitrator is of no special significance. It also appears that Respondent may be relying on Jacobs for the proposition that the bargaining agreement was sufficiently comprehensive with respect to the gen- eral subject of severance allowances so as to relieve the Respondent of an obligation to bargain about allocation. A review of the bargaining contract shows that the par- ties reached agreement not only regarding separation al- lowances, but also about interplant transfer rights in the event of plant closings and about "Notice of Plant Clos- ing and Technological Adjustment Plan." Arguably, an inference might be drawn from these provisions that the entire topic of plant closure and its effects had been com- prehensively regulated by the contract and was not sub- ject to further bargaining. In Jacobs, the Board and the Second Circuit consid- ered Section 8(d) of the Act, which, in 1947, had nar- rowed the 8(a)(5) bargaining obligation so as not to "requir[e] either party to discuss or agree to any modifi- cation of the terms and conditions contained in a con- tract for a fixed period." The court agreed with the Board that Section 8(d) does not "relieve ... an em- ployer of the duty to bargain as to subjects which were neither discussed nor embodied in any of the terms and conditions of the contract," 196 F.2d at 684 , and thus the employer in Jacobs was obligated to bargain at midterm of the contract about the subject of pensions , an issue that had neither been touched on in the agreement nor been a topic of discussion during the negotiations. On the other hand, the Board found no employer midterm duty to discuss changes in an existing group insurance pro- gram because alteration of the insurance plan had (with- out result) been discussed during the negotiations. I i The question of what kinds of proposals might consti- tute an attempted "modification of the terms and condi- tions contained in a contract" is not an easy one. From an employer's point of view, it might be argued that any effort to cause the employer to expend more money on its employees, and thus untie the economic package that it thought it had securely wrapped up with the execution of the contract, could effectively be considered an at- tempted "modification of the terms and conditions." Jacobs and subsequent cases, however, indicate that a union may properly seek midterm discussion of a money item if it is of a different sort from those already con- tained in the agreement, has not been removed from the table by prior bargaining, and has not otherwise been the subject of a contractual waiver by the Union. Since Jacobs, it would appear that this sort of 8(d) problem has been approached in the spirit of the allusion l i This latter holding was not challenged before the court of appeals, which concluded, accordingly, that it "need not pass upon the correct- ness of this interpretation of 8(d) " 196 F 2d at 683 fn I 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the court of appeals in that case to "the general pur- pose of the Act, which is to require employers to bargain as to employee demands whenever made." 196 F.2d at 684. In NL Industries v. NLRB, 536 F.2d 786, 790 (8th Cir. 1976), the court held that Jacobs "requires bargain- ing over mandatory subjects during the term of the con- tract unless the contract expressly dealt with the subject matter," and further stated that the duty to bargain is re- moved only when "the right to bargain has been clearly and unmistakably waived." Subsequently, in National Broadcasting Co., 241 NLRB 920, 921 (1979), the Board, by adopting the decision of an administrative law judge, agreed with the NL Industries court that mid-term bar- gaining over a mandatory subject is required unless the union has made a "clear and unmistakable" waiver, which can be manifested "either by the terms of the con- tract or by actual negotiation." The foregoing precedent requires a conclusion that the Union was not seeking to "discuss . .. any modification of the terms and conditions" contained in its contract by proposing to discuss the subject of allocation. The con- tract is silent on that point and there is no evidence that it was discussed during the precontract negotiations. Given the foregoing considerations, as well as the fact that the contract contains no "zipper" clause purporting to preclude any further bargaining,12 I conclude that the severance and other plant closure provisions of the agreement do not "clearly and unmistakably" prohibit the Union's request for bargaining about the evidently virgin subject of allocation. "Section 8(d) does not apply, however, where the attempt is not to modify the terms of the agreement . . . but is to obtain an objective which the agreement has not settled." Mine Workers Local 9735 v. NLRB, 258 F.2d 146, 149 (D.C. Cir. 1958). Respondent next argues that a violation of the duty to bargain "can be found only after the Union makes a clear request to bargain," and that the Union in fact never communicated more to Respondent than that it "wanted to know what position the Company was going to take and a threat that the Union would `beat' the Company at the unemployment compensation board if the Company elected to allocate separation and vacation pay." It is true that the Union never used the word "bar- gain," but it came so close as to leave no doubt about its intentions. Thus, in his August 8 letter to Forst, Loehr wrote that he "would like the opportunity to discuss with your company your position on the filing of UC-23 forms, as it relates to earnings, prior to your plant clos- ing in an attempt to eliminate or minimize any misunder- standings" (emphasis added).13 That is something more 12 There is an article in the contract that provides, in part, "This Agreement constitutes the entire agreement between the parties" except for local agreements Such a provision does not affect the statutory duty to bargain Nor should the standard management-rights clause contained in the agreement "be read as conferring on the Company the power of unilateral decision as to wages or benefits." NLRB v Auto Crane Co, 536 F 2d 310, 312 (10th Cir 1976) is It would appear that the reference should have been to UC-203 forms, rather than UC-23, although both are used in the qualification process and Donald Diekroeger, a representative of the Wisconsin Job Service Division, testified that it "could happen that an employer would report severance pay on [Form UC-23] also " than a simple request to "know what position the Com- pany was going to take." Forst testified that, in response, he believed he told Loehr "that we would discuss that matter" when he came to Green Bay. But when that visit came at the end of September and Loehr again brought up "the allocation of severance pay, vacation pay," Forst replied that he had no answer and "would get back to [Loehr] in two or three weeks." This sequence of events should have left little doubt in the mind of a reasonable person that the Union was in- terested not only in ascertaining the position of Respond- ent, but also (if necessary) bargaining with Respondent on the subject of allocation . Although the following lan- guage of the court in Scobell Chemical Co. v. NLRB, 267 F.2d 922, 925 (2d Cir. 1959), was directed to the subject of a demand for recognition and bargaining , it is not in- appropriate in the present situation : "[W]hile a request to bargain is prerequisite to the employer's duty to bargain ... the request need take no special form, so long as there is a clear communication of meaning ." Here, there was undoubtedly such communication . See also Nappe- Babcock Co., 245 NLRB 20, 21 fn. 4 (1979), in which a letter from a union seeking specified information asser- tedly needed so that the parties could "proceed to nego- tiate a labor agreement between the Company and the Union" was itself held to be a "bargaining request." Respondent's final substantive argument is its assertion that the Union failed appropriately to follow through on its desire to bargain once it learned of the position taken by Respondent on the question of allocation . As earlier noted, Loehr learned on November 6 or 7 of the alloca- tion forms given to the employees , and the record fur- ther shows that it was not until November 14 or so that the first UC forms were sent to Plant Manager Grell by the State Job Service Office. 14 Respondent contends that the Union's failure to request bargaining after it received notice on November 6 or 7 and prior to the first actual denial of unemployment benefits to former employees (whenever that might have been ; perhaps in November) or even thereafter constituted a waiver by the Union of any right to bargain that it may have possessed. As Respondent contends , the Board has consistently held that even when an employer has failed to give formal notice to a union of a proposed change in work- ing conditions, the employer is not necessarily in viola- tion of Section 8(a)(5) if the union (1) receives actual no- tification of the contemplated change at a time that would allow for meaningful negotiations on the matter and (2) does not act with due diligence thereafter in re- questing bargaining. W.G. Best Homes Corp., 253 NLRB 912, 919 (1980); Citizens National Bank of Willmar, 245 NLRB 389 (1979); International Offset Corp., 210 NLRB 854, 855 (1974). As stated in the latter case, absent a re- quest for bargaining by the union, the employer 's "will- ingness to bargain has never been tested and, having 14 Grell's testimony is uncertain on this point ("I can only assume at this date because I never kept track of dates as [the UC-203 forms] came, it-it would probably be a week after [the employees picked up their last checks on November 6 and 7]. Sometime around the 14th, 16th, 17th, I probably would have received the first notice "). Still, there is no other pertinent testimony ARMOUR & CO. never been tested, [the employer's] conduct may not be found violative of the Act." That line of authority is not so clearly applicable here, however, for in this case, the Union did indicate-in my view, unmistakably and persistently-its desire to bargain on the subject of allocation. It may be true that the Union could have made still another request between the time that it actually learned on November 6 or 7 of the decision not to allocate and the first actual denial of un- employment benefits to an employee.15 But I do not think it was inappropriate or unrealistic for Loehr at that point to simply shrug his shoulders in disgust and turn to other means of dealing with Respondent. Loehr had certainly exhibited a serious interest in this matter prior to November 6, and he had every reason to think that Respondent understood his concern to be more than perfunctory. Loehr had talked to Grell about the subject in August and had been directed to Forst. In- stead of dropping the issue, he took the trouble to write to Forst about it, asking that discussion be had "prior to your plant closing in an attempt to eliminate or minimize any misunderstandings." He was put off by Forst until the latter's September 30 arrival in Green Bay, because in August the latter assertedly "didn't really know enough about" allocation. But when Forst came to Green Bay 6 weeks later, he again told Loehr that he had no answers, and would contact Loehr in "two or three weeks." Instead of that promised contact, the first that Loehr heard from Respondent about its position came a week after the plant had closed, by way of an employee disclosure to him of the direct communications on the subject addressed by Respondent to the employ- ees. 16 Although a union may not frivolously protest to the Board about an employer's failure to consult if the union indolently made no timely application for bargaining, unions need not grovel or undertake apparently futile acts.17 Given the foregoing history, it was eminently 15 Donald Diekroeger, an official of the Wisconsin Department of In- dustry, Labor and Human Relations, testified that it was "sure" that even after an employer has allocated , it may later change its mind, "certainly at the initial level [of appeal] " It was obvious at the hearing that Diek- roeger had never previously thought about the legal ramifications of such a change of heart It was not clear whether benefits unpaid to that point would be retroactively paid 16 I agree with counsel for General Counsel that Forst's professed ig- norance, in August and September, of the operation of the allocation pro- cedure was not terribly convincing Forst testified that Loehr asked him on September 30 if "the Company [is] going to disqualify the employees for weeks of separation and vacation pay," that a reference was made to UC forms, and that he replied , "We will let you know, or I will advise you in two or three weeks" When asked how, if he "didn't know what that meant" when Loehr had referred to "disqualification," he could de- termine that a decision would be made in "two or three weeks," Forst replied, "We always make a decision on how-how we complete UC forms, or unemployment compensation forms in a closing " At the hearing, Forst offered no explanation of why he failed to at least notify Loehr of Respondent's position on allocation once it was for- mulated Although denying that he understood the Union to be asking for bargaining, he did acknowledge a belief that the Union was asking to be informed of Respondent's "position," and he did acknowledge twice promising Loehr that he would communicate that position to him prior to the plant closing date. 17 The Union acted, I think, in accordance with the highest traditions of labor representation Although the plant was closing and the bargain- ing unit vanishing, Loehr went out of his way to attempt to secure unem- ployment compensation rights for the benefit of employees who were no 829 reasonable for Loehr to harbor a belief, on November 7, in the pointlessness of making yet another approach to Forst. Forst had promised twice and broken both prom- ises. The plant had been closed for a week , thus thwart- ing Loehr's expressed desire to bargain "prior to your plant closing" (at a time when, as the Board has said, "a measure of balanced bargaining power existed," P.B. Mutrie Motor Transportation, 226 NLRB 1325 (1976)). Against such a background, Loehr's failure to try still once more to have Respondent satisfy its bargaining obli- gation does not constitute a waiver. t s In addition, by November 7, Respondent had already taken the trouble to calculate the weekly allocations of some 150 employees, seemingly a formidable task. The information so derived had been transcribed onto indi- vidual forms. The forms, distributed to all the terminated employees, described the Wisconsin law of allocation, told the employees that their vacation and severance pay "has been allocated as follows, " and notified them that they "MUST REPORT" the allocated pay on their un- employment claims. Although, as discussed, the Board has in some circumstances imposed on unions the duty to request bargaining after receiving notification of a pro- posed action, it has also recognized that, sometimes, such an obligation is not present . In Holiday Inn of Benton, 237 NLRB 1042, 1044 (1978), the employer, without notice, overnight converted a restaurant into a cafeteria; the union was held not to have been required to request bargaining on receipt of notice of that fact because the employer's "unilateral actions clearly conveyed the mes- sage that the decision was made on an irrevocable basis and that such a request would have been futile." When Loehr on November 7 saw the carefully computed and detailed forms announcing a completed action ("has been allocated"), at a time after the plant had already closed and its work force scattered, and considered this devel- opment against the background of dishonored promises made to him by Forst, it would have been irrational for him to think that still another request for bargaining would have been anything but "futile." Accordingly, I conclude that Respondent violated Section 8(a)(5) and (1) by failing and refusing, in 1980, to bargain with the Union, as requested, about the subject longer to be represented by the Union. When those efforts failed, the Union committed resources toward a state appeal and an arbitration pro- ceeding The Union did not sleep on its rights is Respondent, as discussed, takes the position that Forst did not un- derstand Loehr's overtures to be a request for bargaining and argues that after November 7, the Union failed to ask Respondent to reconsider its decision even though "any position by the Company could have been withdrawn and state action reversed even after initial adverse action by the State " I note, however, that even after the Union made inarguably clear its desire for bargaining by filing its charge on January 27, 1981, Respondent made no effort to rectify the situation by offering to bargain at that time. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of allocation of severance and vacation pay' 9 and by taking unilateral action with respect thereto.20 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. In 1980, by failing and refusing to bargain with the Union, as requested, on the subject of the allocation of vacation and severance pay for purposes of unemploy- ment compensation benefits, and by taking unilateral action with respect thereto, Respondent violated Section 8(a)(5) and (1) of the Act. 4. The foregoing unfair labor practice affects com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY The General Counsel asks on brief for a remedy of re- imbursement to all employees of "the dollar amount they lost as a result of their failure to receive unemployment compensation" in consequence of the allocation. It would seem, however, that a remedy of the sort recently granted by the Board in Penntech Papers, 263 NLRB 264 (1982), is probably more appropriate here. In Penntech, to remedy a failure to bargain about the effects of a par- tial closing, the Board, as it had in Royal Plating & Po- lishing Co., 160 NLRB 990 (1966), and in Transmarine Navigation Corp., 170 NLRB 389 (1968), ordered bargain- ing and a "limited backpay requirement." Except that, in those cases, the "effects" about which the union would have wished to bargain were unspecified, and here the "effects" issue was specific, there really is little differ- ence between the cases. But the fact that there was spec- ificity here is no reason to make the employees complete- ly whole, as the General Counsel requests; that sugges- tion seems not only Draconian but also arguably incon- sistent with H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970).21 Essentially, the remedy ordered in the cited cases re- quired the employer to bargain with the union about the effects of plant closing and to pay the employees their normal wages starting from 5 days after the date of the Board's decision until the occurrence of any of four 19 As Respondent points out , the complaint does not mention vacation pay, but is restricted to severance pay. However, Loehr testified that, in his September 30 conversation with Forst, he referred to both types of pay. The issue of a failure to bargain about both subjects was "fairly tried," thus permitting a finding regarding vacation pay. NLRB v Thompson Transport Co., 421 F 2d 154, 155 (10th Cir 1970) 20 Even if one were to agree with Respondent that Loehr was only asking for a statement of "position," which I do not, it is clear that Re- spondent would have violated the Act by taking some 11 weeks to fur- nish such pertinent information , and then only circuitously and after the plant had closed. JP. Stevens & Co, 239 NLRB 738, 748 (1978). I have considered Respondent's assertion that the Board 's extended processing of the matter (charge filed January 27, 1981, complaint issued November 16, 1982, and hearing held March 16, 1983) requires dismissal of the complaint for laches Because there is no indication that, as Re- spondent claims in its answer, it has been "substantially prejudiced" by the delay, I can perceive no merit in the contention 21 See St. Francis Hospital of Lynwood, 232 NLRB 32, 33 (1970) stated conditions, provided that the employees should not receive less than they "would have earned for a 2- week period at the rate of their normal wages when last in [the employer's] employ." In applying that remedy to this case, some modifications are appropriate. One is that, although logic would indicate that Re- spondent should be required to bargain about whether to reverse its decision to allocate, the record strongly sug- gests that it is too late for such an act to have any mean- ingful impact. Accordingly, the subject of the remedial bargaining should be whether Respondent will agree to make the employees whole for the unemployment com- pensation benefits denied to them as a result of Respond- ent's decision to allocate. Second, the rate at which employees should be paid remedial compensation will not be measured by their former weekly wage rates, but rather by the weekly amounts of unemployment benefits (or prorated fraction thereof) that they would have received were it not for Respondent's decision to allocate. Accordingly, Respondent shall pay compensation to all former Green Bay employees represented by the Union who were denied unemployment benefits because of the allocation of severance and vacation pay,22 meas- ured by the weekly (or fraction thereof) amount of such benefits to which they otherwise have been entitled, from 5 days after the date of this decision23 until the oc- currence of the earliest of the following conditions: (1) the date on which Respondent bargains to agreement with the Union on the subject of reimbursement of un- employment compensation benefits denied to employees as a result of Respondent's decision to allocate vacation and severance pay; (2) a bona fide impasse in bargaining; (3) the failure of the Union to request bargaining within 5 days of this (or the Board's) decision, or to commence negotiations within 5 days of Respondent's notice of its desire to bargain with the Union; or (4) the subsequent failure of the Union to bargain in good faith; but in no event shall the sum paid to any of these employees exceed the amount he or she would have received as the weekly unemployment compensation benefit from Octo- ber 31, 1980, the date on which Respondent terminated the Green Bay operation, to the time he or she secured equivalent employment elsewhere, or the date on which Respondent shall have offered to bargain, whichever occurs sooner; provided, however, that in no event shall this sum be less than those employees who were denied unemployment compensation benefits would have re- ceived as such benefits for a 2-week period. Interest on all such sums shall be paid in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). Furthermore, in view of the fact that Respondent's Green Bay facility is no longer in operation, I shall rec- ommend that Respondent be ordered to mail to each of its former union-represented employees employed on the 22 Various references in the record would indicate that these employ- ees number from 55 to 80, but precise determination is left to the compli- ance stage 23 If exceptions are filed to this decision, the 5-day period shall run from the date of the Board's Decision and Order in this case ARMOUR & CO. date that Respondent ceased operations in Green Bay, at the most current addresses available to Respondent, the Union, or the General Counsel, copies of the attached notice signed by a representative of Respondent. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed24 ORDER The Respondent, Armour and Company, Green Bay, Wisconsin, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain with United Food and Commercial Workers Union, AFL-CIO, Local 73A as the exclusive collective-bargaining representative of the employees who were employed in the Green Bay, Wisconsin facility with respect to the subject of the allo- cation of vacation and severance pay for purposes of un- employment compensation benefits. (b) In any like or related 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 necessary to effectuate the policies of the Act. (a) On request, and in accordance with the remedy section of this decision, bargain in good faith with the Union as the exclusive bargaining representative of all employees in the bargaining unit with respect to the sub- ject of reimbursement of employees for unemployment compensation benefits denied them as a result of Re- spondent's decision to allocate vacation and severance pay and, if any understanding is reached, embody it in a signed agreement. (b) Pay the terminated union-represented employees in accordance with the formula set forth in the remedy sec- tion of this decision. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. 24 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings , conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 831 (d) Mail an exact copy of the attached notice marked "Appendix"25 to all employees employed at the time of closure by Respondent in the bargaining unit represented by the Union at the former Green Bay, Wisconsin facili- ty. Copies of the notice, on forms provided by the Re- gional Director for Region 30, after being duly signed by Respondent's authorized representative, shall be mailed to employees immediately on receipt thereof, as directed in the remedy section of this decision. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 25 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 " 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 or- dered us to post and abide by this notice. WE WILL NOT fail and refuse to bargain with United Food and Commercial Workers Union, AFL-CIO, Local 73A concerning our decision to allocate vacation and severance pay for purposes of unemployment com- pensation benefits at the time we closed our Green Bay, Wisconsin facility in 1980. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain collectively with the Union on the subject of reimbursement of our employees for the unemployment benefits denied to them because we allocated vacation and severance pay at the time we closed the plant, in accordance with the decision of the Board. WE WILL pay the union-represented employees who were employed at the time of closing of the Green Bay facility a certain amount of compensation, as specified by the National Labor Relations Board, plus interest. ARMOUR AND COMPANY