Triumph-Adler North America, Inc.

810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Roytype Division, Pertec Computer Corporation, a wholly owned subsidiary of Triumph-Adler North America, Inc. 1 and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 376. Cases 39-CA-2138-1 and 39-CA-2138-3 30 June 1987 DECISION AND ORDER REMANDING BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 20 August 1985 Administrative Law Judge Russell M. King Jr. issued the attached decision. The Respondent, the General Counsel, and the Charging Party filed exceptions, supporting briefs, and answering briefs, and the General Counsel and the Charging Party filed motions to reopen the record which the Respondent opposed. 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, and conclusions only to the extent consistent with this Decision and Order. The General Counsel and the Respondent agree that the judge's finding of a contractual restriction on the Respondent's relocating or subcontracting bargaining unit work without obtaining the Union's consent, and his finding that the Respondent violat- ed Section 8(a)(3) of the Act by relocating and sub- contracting unit work, went beyond the issues liti- gated here. We agree that the judge erred in reach- ing these issues and we do not adopt those findings. However, we agree with the judge's finding that the contractual arrangement between the Respond- ent and the Union for dealing with decisions to transfer or contract out unit work does not waive the Respondent's statutory obligation for decision bargaining over those subjects under the circum- stances here. In addition to the reasons set forth by the judge in rejecting the Respondent's waiver contention, we note that the agreement to "notify and discuss with the Union as soon as possible the reasons why it believes such action to be neces- sary" is expressly linked to the purpose of "exploding] alternatives to such transfer of work." Furthermore, the contract also covers, in separate sections, the subjects of job retention and severance pay in the event unit work is transferred. Thus, the The corporate name of the Respondent is changed in accordance with the parties' postheanng stipulation In light of that stipulation it is unnecessary to further amend the complaint to reflect the change in cor- porate name parties appear to have provided for bargaining over the decision to transfer (if based on manufac- turing costs) and to have settled in advance certain subjects of "effects" bargaining if, after "decision" bargaining, the transfer is implemented. This con- tractual arrangement contrasts sharply with that in National Metalcrafters, 276 NLRB 90 (1985), re- manded sub nom. Auto Workers Local 449 v. NLRB, 802 F.2d 969 (7th Cir. 1986), on which the Respondent relies, where the Board found a waiver of any obligation to bargain over decisions to relo- cate unit work. There, the employer had contract- ed to "discuss such relocation in advance and to negotiate with the Union concerning the effect of such relocation on employees." The Board noted that the clause on its face drew a distinction be- tween the limited undertaking to "discuss" reloca- tion and the obligation to "negotiate" concerning the effects of the decision. Further, the Board found that the parties' bargaining history and other contractual provisions corroborated their intent to distinguish between decision discussions and effects negotiations. Id., 276 NLRB at 91. 2 None of those factors is present in the instant case and we see no basis on which to conclude that there was a clear and unmistakable waiver of the statutory right to bargain. See Park-Ohio Industries, 257 NLRB 413 (1981), enfd. 702 F.2d 624 (6th Cir. 1983). Absent a waiver, we find, in agreement with the judge, that in the circumstances of this case, the Respondent's decision to relocate was a mandatory subject of bargaining. We also agree with the judge's conclusion that the Respondent's decision to subcontract part of its operation to Mexico was a mandatory subject. Our reasons are as follows. Each step of the transfer out of work that had been performed by bargaining unit employees was moti- vated by the results of a consultant's cost study, which projected potential savings in manufacturing costs of $2 6 million annually, $2 million of which was attributed to labor costs. The primacy of labor costs in the decision to shift work out of the plant is not seriously disputed. 2 Nor is there substance to 2 In remanding the case, the Seventh Circuit did not fault the Board for the various factors to which it had looked, but indicated that heavy reliance on supposed "plain meaning" of particular words is perilous, es- pecially when such language is relied on for the purpose of establishing a waiver of statutory rights. The court emphasized the well-settled rule that the burden is on the party asserting waiver and that such a waiver must be shown to be clear and unmistakable, and it remanded the case because, in its view, the Board had not explained whether it was deliber- ately abandoning that principle and if so, why. Auto Workers Local 449 a NLRB, supra, 802 F.2d at 973-974 We have not, in fact, abandoned that principle, which has been expressly approved by the Supreme Court (Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 fn. 12 (1983)), and it supports our conclusion here that the Respondent has not made a suffi- cient shovvmg of waiver by the Union. 3 In fact, the Respondent argues that the labor cost differential is so great that bargaining would be pomtless because the Union would never Continued 284 NLRB No. 88 PERTEC COMPUTER 811 the Respondent's contention that the transfer of bargaining unit work altered the Company's basic operation. Rather, as did the employer in Fibre- board Corp. v. NLRB, 379 U.S. 203 (1964), the Re- spondent continued its previous business of manu- facturing and distributing typewriter ribbons and cartridges. Part of the manufacturing function con- tinued to be performed by employees of the Re- spondent, newly hired at new locations, and part was subcontracted to a Mexican manufacturer. But there was neither a liquidation of the enterprise, in whole or part, nor a fundamental change in its nature. Thus, the Respondent has failed to show that it changed either the products, the manufactur- ing process, or the technology of production. Rather, the transfers of work resulted in what was essentially the same work being done for the Em- ployer by other employees in different locations. Compare Inland Steel Container ay., 275 NLRB 929 fn. 1, 935-936 (1985) (relocation decision not a mandatory subject of bargaining because it was principally based on need to replace antiquated plant facilities). While the Respondent encumbered itself with moving costs, it has not shown that the transfer of work was accompanied by major shifts in capital investment. Likewise, the Respondent has not shown that bargaining to impasse or agreement over the decision would have jeopardized its busi- ness in any way. For all these reasons, our conclu- sion that the Respondent was obligated to bargain over the subcontracting and relocation decisions is consistent with the Supreme Court's opinion in First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), and with any of the views ex- pressed in the Board's decision in Otis Elevator Co., 269 NLRB 891 (1984).4 agree to wage cuts substantial enough to make reversal of the decision economically sound. But, while we do not say that the futility of bargain- ing need be an irrelevant consideration, the Respondent's bare assertion of it is, on these facts, insufficient. For, if determinations of whether a subject is one on which bargaining is mandatory depended on the subjec- tive predisposition of the parties to reach agreement, the statutory duty to bargain would have no vitality Indeed, to conclude in advance of bar- gaining that no agreement is possible is the antithesis of the Act's objec- tive of channeling differences, however profound, into a process that promises at least the hope of mutual agreement. See H. K Porter Co. v. NLRB, 397 U.S. 99, 103 (1970). On the other hand, once bargaining to impasse has occurred, the futility of continuing is clear. Also see NLRB V. Katz, 369 U.S. 736 (1962). 4 Since the Respondent's subcontracting and relocation decisions turned on labor costs, Chairman Dotson finds, under the plurality opinion in Otis Elevator Co., 269 NLRB 891 (1984), that the decisions constituted mandatory subjects of bargaining In agreeing with his colleagues that the Union did not waive by con- tract language its statutory right to bargain over the subcontracting and relocation decisions, Chairman Dotson finds the instant case distinguish- able from Litton Systems, 283 NLRB 973 (1987), in which he dissented. In Litton, the Chairman found, in agreement with the judge, that the broad management rights clause in the parties' collective-bargaining agreement, along with the Union's past practice in dealing with work relocation and the union business representative's comments during negotiations, permit- ted the employer's unilateral relocation of umt work. By contrast, in this We also agree with the judge that the informa- tion requested by the Union, consisting of a cost study, substantiating fmancial records, and data on recent subcontracting, was relevant to the negotia- tion of concessions to meet the Respondent's pro- posals to transfer unit work and to the processing of contractual grievances concerning those trans- fers. The Respondent's fmancial circumstances were, by its own admission, central to its decision to relocate its operations, and it had had the cost study prepared for precisely that reason. In order to bargain intelligently over what labor cost con- cessions it might make that could obviate the relo- cation, the Union needed to know the relative pro- portion of those costs in the Respondent's overall operation. The Respondent did not meet its obliga- tion under Section 8(a)(5) through its grudging and belated offer to allow the Union's financial analyst to look at the cost study on its premises, but not to allow him to take with him a copy for further anal- ysis or to examine the study's numerous and com- plex figures in light of the financial records from which they were derived. 5 Finally, the Respond- ent's confidentiality claim establishes no defense, for even assuming the Respondent could show that its internal financial information is confidential as to competitors, it has not shown why it could not have supplied the information to the Union's finan- cial analyst under an agreement that the informa- tion would be used only by the analyst and would not be disseminated. The Union offered such assur- ances, and the Respondent has not shown the Union to be unreliable in respecting confidentiality agreements. If the Respondent's broad assertion of confidentiality were to prevail here, unions would rarely be held entitled to any information that em- ployers had reason to withhold from third parties. Therefore, we adopt the judge's finding that the case the contractual language in fact contemplated bargaining over trans- fers of work and the evidence was insufficient to establish that the Union by its past conduct waived its bargaining rights over such transfers a The Respondent also breached its statutory obligation by failing to supply the Union with the subcontracting information it had requested. The Union was not required simply to accept the Respondent's assur- ances that all subcontracting had satisfied the contractual conditions for permitting it to contract out unit work. Further, as the judge correctly noted, the fact that the Union might have tolerated subcontracting with- out question m the past did not constitute a waiver of its right to inquire into that subject when circumstances changed. Our holdings here as to both the financial data arid the subcontracting information are not inconsistent with our decision in Buffalo Concrete, 276 NLRB 839 (1985), enfd. 803 F.2d 1333 (4th Cir 1986), which holds only that an employer's claim that its contract offers are based on a need to remain "competitive" does not automatically entitle a union to see all the employer's financial books. Accord: Harvstone 'Mfg. Corp. v. NLRB, 785 F.2d 570, 576-577 (7th Cir. 1986). In the present case, the informa- tion sought by the Union was closely related to concrete concerns over loss of unit work through subcontracting and the projected plant reloca- tion, and it was plainly necessary for evaluating the Respondent's claims concerning those subjects in negotiations 812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent violated Section 8(a)(5) and (1) of the Act by refusing to furnish information.6 In light of the Respondent's withholding of sub- stantial and necessary information from the Union, the judge was correct in finding that the Respond- ent did not bargain to impasse over the subcon- tracting and plant relocation decisions. The parties met and discussed these proposals several times (at meetings the Respondent never conceded to be ne- gotiating sessions), but the refusal of the cost infor- mation prevented a full exploration of the subjects on which the Union would have had to concede in order to present useful alternatives to transferring the work out. A failure to supply information rele- vant and necessary to bargaining constitutes a fail- ure to bargain in good faith in violation of Section 8(a)(5), and no genuine impasse could be reached in these circumstances. Harvstone Mfg. Corp., 272 NLRB 939, 944 (1984), enf. denied on other grounds 785 F.2d 570 (7th Cir. 1986). See generally Taft Broadcasting Co., 163 NLRB 475, 478 (1967), affd. sub nom. Television Artists AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968) (prior good faith of the parties is relevant to question whether impasse exists). Therefore, we adopt the judge's finding without having to pass on his subsidiary finding that the Respondent engaged generally in a course of bad-faith bargaining, a finding which goes beyond the issues framed by the pleadings. Given the Respondent's mandatory bargaining obligation, it violated Section 8(a)(5) and (1) by re- fusing to bargain to a bona fide impasse before im- plementing its subcontracting and plant relocation proposals. AMENDED CONCLUSIONS OF LAW Substitute the following for the judge's Conclu- sion of Law 4. "4. That the Respondent Employer violated Sec- tion 8(a)(5) and (1) of the Act by implementing its decision to subcontract and relocate bargaining unit work without first bargaining to a bona fide im- passe with the Union." THE REMEDY The General Counsel and the Charging Party contend, and the Respondent does not appear to dispute, that the judge erred in assuming that by the time he issued his decision, the Newington, Connecticut plant from which all the disputed work was transferred had, for all relevant pur- poses, closed down. This assumption, in turn, led the judge to deny most of the remedial measures 6 In the absence of exceptions, Chairman Dotson adopts the judge's conclusion that it is mappropnate to defer the information request issue to the contractual grievance-arbitration process. sought by the General Counsel. In the unusual cir- cumstances presented by the history of this pro- ceeding, we shall grant the motion filed by the General Counsel and the Charging Party to reopen the record for the limited purpose of determining the appropriate remedies in light of the relevant facts. It is contemplated that the parties will in- clude in their presentations facts relating to the hardship involved in transferring back to the New- ington, Connecticut plant any of the unit work uni- laterally subcontracted or relocated. In making his recommendations as to remedy, the judge should consider the applicability of such cases as Griffith Hope Co., 275 NLRB 487 (1985); Orange Data, Inc., 275 NLRB 1018, 1020 (1985); Gulf States Mfrs., Inc., 261 NLRB 852 (1982) (remedy modified 271 NLRB 772 (1984)); and National Family Opinion, Inc., 246 NLRB 521 (1979). ORDER It is ordered that the General Counsel's motion to reopen the record is granted, and this proceed- ing is remanded to Administrative Law Judge King for the purpose of arranging such further hearing as may be necessary and to issue a supplemental decision. Michael A. Marcionese, Esq., for the General Counsel. Brian Clemow, Esq. (Shipman & Goodwin), of Hartford, Connecticut, for the Respondent. DECISION STATEMENT OF THE CASE RUSSELL M. KING JR., Administrative Law Judge. These consolidated cases were heard by me in Hartford, Connecticut, on 28 January through 1 February 1985. The underlying charges were filed on 18 April 1984 by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 376 (the Union).' The complaint was issued on 24 July 1984 by the officer in charge for Subregion 39 of the National Labor Relations Board (the Board) on behalf of the Board's General Counse1. 2 The complaint was also amended on 20 November 1984 and once during the hearing. The complaint anew m effect that Roytype Division, Royal Business Machines, Inc. (the Company), during the term of a collective-bargaining agreement (the con- tract) between the parties and since 10 April 1984, has discriminated against its employees and failed to bargain in good faith by refusing to furnish certain necessary and relevant information to the Union to enable it to carry Robert Madore, the Union's secretary-treasurer, was present through- out the hearing and also testified m the case 2 The term "General Counsel," when used herein, will normally refer to the attorney in the case acting on behalf of the General Counsel of the Board, through the Regional Director. PERTEC COMPUTER 813 out its obligation to the employees, all in violation of Section 8(a)(1), (3), and (5) of the Act. On 10 April 1984 the Company notified its employees of its intention to permanently relocate and subcontract all unit work at its Newington, Connecticut plant to North Carolina or Georgia and Mexico.3 The Company, in its answer, denies that it violated the Act in any manner and defends the complaint on four grounds as follows. The Company alleges that the deci- sion to relocate was not a mandatory subject of bargain- ing, that the Union contractually waived its right to bar- gain over the relocation, that the parties did bargain to impasse, and that any issue existing between the parties should be deferred to arbitration. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed herein by the General Counsel and coun- sel for the Company, 4 I make the following FINDINGS OF FACT5 I. JURISDICTION The pleadings, admissions, and evidence in the case es- tablish the following jurisdictional facts. Prior to 21 May 1984 Roytype, with an office and place of business in Newington, Connecticut, was a division of Royal Busi- ness Machines, Inc., a Nevada corporation, which is a wholly owned subsidiary of Triumph-Adler North America, Inc. (TANA), a New York corporation. 6 The composition of the board of directors of both corpora- tions was identical. About 21 May 1984, as part of a cor- porate reorganization, the Company became a division of Pertec Computer Corporation, a Delaware corporation, The pertinent parts of the Act (29 U S C § 151 et seq ) are as fol- lows: Sec. 7 Employees shall have the right to self-organization, to form, Jain, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . Sec. 8 (a) It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 . (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. . . . (5) to refuse to bargain collectively with the representatives of his employees.. 4 / deem it necessary and appropriate to credit my law clerk, Lance G. Binkley, for his insight and research in the preparation of this decision. 5 The facts found are based on the record as a whole and on my obser- vation of the witnesses. The credibility resolutions herein have been de- rived from a review of the entire testimonial record and exhibits with due regard for the logic of probability, the demeanor of the witnesses, and the teaching of NLRB v. Walton Mfg. Ca, 369 U S 404, 408 (1962) As to those testifying in contradiction of the findings, their testimony has been discredited either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unwor- thy of belief. All testimony and evidence, regardless of whether men- tioned or alluded to, has been reviewed and weighed in light of the entire record, 6 The parties entered mto a postheanng stipulation regarding the rather complex makeup of the Company and dealing with matters of iu- nsdiction As requested by the parties, the record is reopened for the ac- ceptance of that stipulation as evidence in the case which is a wholly owned subsidiary of T/A Systems, Inc., also a Delaware corporation and also a wholly owned subsidiary of TANA. At all times, the composi- tion of the board of directors of all three corporations has been identical. The realignment of the the Company resulted in no change in the officers of the Company, nor in the nature of its business. At all times before and after this change, the Company has reported directly to the board of directors of TANA. The Company is en- gaged in manufacturing and distributing typewriter rib- bons and cartridges. During the 12-month period imme- diately preceding the issuance of the complaint, the Company, in the course and conduct of its business oper- ations, purchased and received goods and materials in excess of $50,000 that were shipped to its Newington, Connecticut facility directly from points outside the State of Connecticut. Thus, I find, as alleged and admit- ted, that the Company is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Also as alleged and admitted I find that the Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Initial Facts The Company moved its manufacturing operations from West Hartford to Newington, Connecticut, in 1982, in order to reduce labor costs and improve manufactur- ing and distribution efficiency. At the new plant the Company was found to be in violation of the State De- partment of Environmental Protection (state DEP) standards, resulting in "unfavorable publicity" and a law- suit by the town of Newington to revoke the Company's temporary operating permit. On 26 August 1982 the Union was certified by the Board as the collective-bar- gaining agent for the Company's production and mainte- nance employees (the unit). The parties began contract negotiations in October 1982, reaching agreement on 24 March 1983. Article II, section 2, of the contract, effec- tive as of 28 March 1983, provides: The Company will not transfer work customarily performed by members of the bargaining unit to an- other Company facility, or contract or subcontract out such work, except on the basis of unavailability of trained personnel or necessary equipment, pro- duction requirements, or cost of manufacture or dis- tribution. If such decision is based on the cost of manufacture or distribution, the Company will notify and discuss with the Union as soon as possible the rea- sons why it believes such action to be necessary, so that the parties may explore alternatives to such transfer of work. [Emphasis added.] During negotiations and on 3 November 1982, the Company initially proposed contract language to allow unilateral relocation and subcontracting of unit work without consent by the Union. Following a series of meetings between Union President Philip Wheeler and the Company's representative, Attorney Brian Clemow, 814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD agreement was reached concerning the language of arti- cle II, section 2, of the contract (recited above) on 23 March 1983. There is conflicting testimony regarding whether the Union or the Company submitted the pro- posal for modifications resulting in the term "notify and discuss" in the contract. In mid-1983, the Company's chief executive officer was replaced by James Snider, who determined the need to drastically reduce the Company's costs in order to correct fmancial losses. According to Snider, the Compa- ny had lost $6.6 million in 1982 and $2.9 million as of mid-1983. Snider's program for cost reduction included closing warehouses, improving communications, reduc- ing the industrial relations staff, new equipment, and a pay freeze for salaried personnel. On 31 August 1983 Snider and Attorney Clemow met with Union President Wheeler. According to Snider's testimony, they dis- cussed changing the incentive system in order to turn the Company around financially. Wheeler denied that manu- facturing costs were discussed at the meeting. The parties held a series of meetings beginning on 21 November 1983 at the Company's Newington plant The Company was usually represented by Snider, Attorney Clemow, and Industrial Relations Manager Conley. In attendance for the Union was Union President Wheeler and Secretary-Treasurer Robert Madore. On 21 Novem- ber 1983 the Company held a meeting to inform the Union of its financial problems and the "impact on the labor relation's [sic] picture." Attorney Clemow opened the meeting by stating that the meeting was not a negoti- ating session. Company President Snider then took over and informed Wheeler that he was presenting a reorgani- zation plan to TANA and that if negotiations became necessary he would contact the Union. Using overhead slides, Snider presented a report alleging company losses of $6.6 million in 1982 and $5 million in 1983 and a pro- jected loss of $1.9 million for 1984. Snider reviewed steps the Company had taken to streamline all areas other than the bargaining unit and its employees. Snider then informed the Union that the Company had conduct- ed a wage survey of bargaining unit jobs in the industry, which reflected the Company's wages to be higher than those of its competitors. Snider also testified he informed the Union that the Company had hired outside consult- ants to study the cost of manufacturing its products at other locations that showed potential savings by manu- facturing outside the country. Snider discussed a wage freeze for unit employees and subcontracting or relocat- ing production work as changes necessary if the Compa- ny could not substantially reduce manufacturing costs. However, Wheeler testified that Snider did not inform the Union about the cost study, did not disclose the iden- tity of the consultants, and did not mention information obtained from them. Furthermore, according to Wheeler, Snider did not express any intent to move the plant, but wanted to resolve problems and remain in Newington.7 7 Wheeler testified that after the meetmg Clemow said that it certainly was not the Company's intention to suhcontract or relocate, but to solve the problems m Newington Wheeler further testified that Clemow said a solution was possible, based on the success of changes already affected. At the 21 November meeting Wheeler requested the op- portunity to have a union expert from Detroit visit the plant to see the Company's books. Wheeler also request- ed a copy of the information presented. The Company sent the Union the presentation slides in a letter dated 23 November 1983. On 30 November 1983, Wheeler sent a letter to the Company requesting access to its original fi- nancial records to verify the Company's claim of eco- nomic hardship and to prepare for possible concession negotiations. This request was a three-page typewritten letter that, in effect, required the Company to expose every financial document over a 3-year period and also requested the Company to summarize information in nine specific areas. After the meeting of 21 November, the Union learned from its shop chairman that the Company had subcon- tracted out unit work. On 8 December 1983 the Union filed a grievance and requested information concerning any subcontracting during the last 6-month period. 8 Ap- parently, in response to Wheeler's extensive letter of 30 November 1983, on 18 January the Company mailed a packet containing some of the requested information to UAW headquarters in Detroit. The Union's financial an- alyst from Detroit, Gerald Lazarowitz, testified that the information consisted of summaries of internal documents that were inadequate to verify the Company's claim of losses.° In a letter dated 17 February, Lazarowitz asked the Company's industrial representative, Russ Booth, for full access to financial records and a copy of "a study which purported to prove that the company could save substantial sums of money by subcontracting work." The letter also indicated, and Lazarowitz so testified, that he had contacted the Company's controller, Edward Bar- oody, who had been assigned to gather the requested in- formation, and that Baroody indicated full access to fi- nancial records would not be forthcoming. Baroody later informed Lazarowitz that the Union could only receive summaries of the information contained in actual compa- ny records.1° On 21 February, Snider held a second meeting, for the purpose of discussing "cost of manufacturing" under arti- cle II, section 2, of the contract. Snider presented results of the manufacturing cost study, reflecting more profit through subcontracting and relocating the business. He introduced a three-part plant closing plan to subcontract narrow film to Mexico (phase A), to relocate fabric inking and assembly to a right-to-work State (phase B), and to relocate the remainder of production operations to a "low-cost manufacturing area" in the South (phase C). According to Snider, factors that led the Company 8 All dates heremafter refer to the year 1984 unless otherwise mdicat- ed. 9 Lazarowitz, a staff member from the research department in Detroit, indicated he spent about 75 percent of his time conducting such analyses to verify employers' claims that they cannot meet their financial responsi- bilities under union contracts. l ° According to Lazarowitz, Baroody told him m a telephone conver- sation that a visit to the plant would be a waste of time, and there was no way the Union could make enough concessions to avoid relocating urut work However, Baroody testified that it was Lazarowitz who told him, in a telephone conversation in mid-February, that it would probably be a waste of time to visit the plant, and that Baroody agreed with the com- ment PERTEC COMPUTER 815 to consider relocating were high wages, fringe benefits, low productivity, and the dispute with the town of New- ington over odors emitted from the plant, which includ- ed the pending lawsuit filed by the town against the Company. Snider informed Wheeler that he had to make a final recommendation concerning relocation at the 21 March TANA board meeting. Snider also asked Wheeler for suggestions on how the Company could stay in New- ington, adding that he could not see how it could be done. Wheeler told Snider that the Union had come to the meeting expecting to negotiate concessions, and now the Company was telling the Union it was going to move. Wheeler repeated the Union's request for financial information, adding that copies of the cost studies were also necessary to bargain about alternatives to subcon- tracting and relocating. Wheeler protested that Snider's 21 March deadline to decide whether to relocate did not give the Union adequate notice to bargain, particularly since not all necessary information had been furnished 11 After considerable discussion, Snider changed his posi- tion, and agreed to allow Lazarowitz to visit the Compa- ny's plant. Snider said the Company would give La- zarowitz "the information he needed," but not a copy of the consultants' studies. During a telephone conversation on 22 February La- zarowitz asked Baroody for information, presumably to be made available during his visit to the plant. 12 On I March, after rescheduling other appointments, La- zarowitz arrived at the Company's facility at 12:30 p.m. Snider informed Lazarowitz that the Company was not making a "poverty plea" and, therefore, the Union could not have access to actual financial records. 12 However, the Company did give Lazarowitz some of the informa- tion requested on 22 February. Lazarowitz was shown the consultant's 43-page cost study, but was not permit- ted to leave with a copy of the actual study, Snider indi- cating that the Company had a right to confidentiality. Snider also provided Lazarowitz with more summary pages from the study and offered to allow him to stay as long as necessary, at the Company's expense, to analyze the study. 14 Lazarowitz testified that he would need I to 2 weeks to complete a full evaluation of the cost study, but that he left the plant at 3:30 p.m. to conduct audits he was unable to reschedule. 15 There is no indication in the record to show why the Union did not send addi- tional research experts to the Company's facility. How- ever, the record is clear that the Company was not about " In a letter to Snider dated 20 March, Wheeler characterized the time frame as bad-faith bargaining, allowing the Union very little time to analyze the proposal and discuss alternatives. 52 In addition to again requesting a copy of the actual cost study with substantiating financial records, Lazarowitz requested the following mfor- mation (1) a product cost breakdown among material, labor, and over- head for 1982 and 1983; (2) a detailed breakdown of general and adminis- trative expenses for 1982 and 1983; (3) a balance sheet as of 31 December 1983; and (4) an explanation of interest expense calculation for 1983. " To the contrary, in its brief the Company asserts it was making a poverty plea. 14 Lazarovvitz was also provided most of the other information he had requested during his 22 February telephone conversation with Comptrol- ler Baroody. " Baroody testified that Lazarowitz said he could not stay because he had to attend a Mondale/Ferraro rally in Detroit. Lazarowitz denied that he said this, testifymg that such an allegation was "outrageous" to allow the Union any access to its actual financial books and records, much less allow the cost study to be copied or leave the plant. On 28 February the Union's secretary-treasurer, Madore, had met with representatives of the town of Newington and state DEP officials to discuss the Com- pany's problem with emissions. No one from the Compa- ny was present. At the meeting Madore asked the town council to consider dropping the lawsuit. The mayor later told Madore the town would "consider holding the lawsuit" if the Company would stay in Newington and meet state DEP standards." In a letter to Wheeler dated 2 March, Snider suggested that the Union had all the information necessary to evaluate the Company's financial condition. According to Snider, the combination of financial data sent to UAW headquarters on 18 January, information sent on 1 Febru- ary, and summary information from the consultant's cost study "should be sufficient for Gerry's [Lazarowitz] evaluation." On 7 March, the parties met for a third time at the Company's facility. Wheeler again requested copies of the cost studies. He also took exception to Snider's letter of 2 March, pointing out that Lazarowitz only spent 3 hours at the plant, due to other commitments made after the Company advised him that a visit would be futile. Wheeler also restated the request for actual financial in- formation contained in the Company's books and records, noting that Lazarowitz had indicated the Union still did not have more than conclusory summary infor- mation. Wheeler asked "what it would take" to convince the Company to stay in Newington. Company Attorney Clemow suggested that union concessions of $1.8 million would be enough to make the relocation uneconomical. Clemow then suggested that the Company would accept something less, so long as the Company could break even. Wheeler noted the big turnaround the Company had already achieved, reducing losses from $6 million in 1982 to less than $500,000 in 1984.17 At a fourth meeting on 14 March, Attorney Clemow presented a shutdown proposal in which the Company would implement only phase A of the plan (subcontract- ing to the Mexican border), while continuing to discuss alternatives to phases B and C. The proposal required the Union to give up a scheduled 5-percent wage in- crease due on 26 March before the Company would fur- nish more information. The Union objected to the pro- posal because the Company did not guarantee that phases B and C would remain in Newington. Wheeler also repeated the request for the consultants' studies. Al- though the Union did not have Lazarowitz' report, La- zarowitz had already indicated that he did not have all the information necessary to make a full analysis. 16 The record reflects the Company was already in compliance with state environmental standards as of this date, so that no additional cost would be required for compliance. 17 Further, the record reflects that in December 1983, the Company posted and mailed to employees a "status report" indicating that the Company was "realizing increased sales and expense reductions," and that its "Profit Improvement Plan" was "beginning to work." 816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The parties met again on 16 March. Later that day the Union received Lazarowitz' report, indicating that some of the Company's losses were attributable to flat sales and nonoperating expenses caused by the 1982 move from West Hartford to Newington. The report also al- leges that the cost study ignored the impact of other sav- ings already attained in Newington. At the 16 March meeting, Wheeler asserted that Lazarowitz' report con- firmed that the Union could not bargain effectively with- out more information. According to Wheeler, the Com- pany had not spent time and money to find ways to cut costs in order to remain in Newington, but had only studied how much could be saved by relocation. Wheel- er also indicated the Union was willing to defer its 5-per- cent wage increase due 26 March, resulting in an imme- diate savings of $125,000 per year to the Company. The savings would compensate for the cost of the Company's continued compliance with DEP emission standards, esti- mated at $100,000 per year. Finally, Wheeler proposed to set up a committee to evaluate the Company's finan- cial problems. On 20 March the Union gave the Company a written version of the above proposal, and a copy was sent to Snider, in California at the TANA board meeting. In a letter from Attorney Clemow dated 23 March to the Union, the Company's counterproposal provided for the immediate implementation of phase A subcontracting and the hiring of an outside consultant. The consultant was to be chosen by the Union from the Company's list and would make a binding decision. The counterproposal re- quired the Union to give up the 5-percent increase with- out getting access to more information. In a letter dated 28 March, the Union responded to the counterproposal with another request for information previously requested. The letter also requested new in- formation in order to police the subcontracting provi- sions of the contract and to determine the Company's ex- perience with prior subcontracts, in order to bargain ef- fectively. At another and last meeting on 29 March, Wheeler rejected the Company's March 23 counterpro- posal until the Union received more information. The parties did not meet thereafter, although they ex- changed correspondence concerning the Union's request for subcontracting and cost study information. Snider testified that his final decision to relocate all unit work was made between 29 March and 9 April. On 10 April, the Company disclosed its timetable for complete reloca- tion in a letter to the Union, enclosing a status report to employees dated 9 April. The letter to employees an- nounced for the first time that the Company had the ap- proval of TANA's board of directors to go ahead with the three-phase subcontracting and relocation plan. All narrow film assembly would be relocated to Mexico in June and July, the fabric operation to North Carolina or Georgia in November or December, and the remainder of the operation to be relocated to North Carolina or Georgia in March or April 1985. By letter dated 16 April, Wheeler informed Snider that the Union considered the 10 April relocation letter "a re- fusal to furnish information necessary for any effective bargaining," and "a disguised attempt to continue . . . unlawful subcontracting and unilateral relocation." Wheeler again responded to the Company's March coun- terproposal, restating that it was impossible to engage in meaningful bargaining without the information requested. On 16 April Wheeler also wrote to Attorney Clemow, stating that the Union could not concede to "an interpre- tation of the contract giving the company unlimited right to abrogate the subcontracting limitations of Article II." The Company began implementing phase A subcon- tracting to the Mexican border in July 1984. Thereafter, between 6 August and 19 October, the parties were in- volved in a dispute over the Union's specific requests for names of subcontractors doing unit work. On 19 Octo- ber, the Company furnished information about "SKA, TA 200/300" work." The Company also furnished the name and location of the subcontractor in Del Rio, Mexico. However, the Company refused to furnish all other subcontracting information, describing the Union's demand as a "blanket request." In November, after an ar- bitration hearing, the Company gave the Union informa- tion about SKA subcontracting done in December 1983. However, the Union was never allowed to visit the Company's facility to review the actual financial records to verify the cost study. As equipment was removed from the plant, the Union filed a series of 15 grievances. The first grievance, filed on 25 June, protested the transfer and subcontracting of work and removal of machinery under phase A of the relocation. Apparently, some of the grievances reached arbitration. In any event, the Company continued to march forward by implementing its plans with the ulti- mate goal of complete relocation. B. Analysis of the Subcontracting and Relocation of Unit Work The parties are in substantial agreement that the issues involved in the case are as follows: whether the Compa- ny was under a contractual duty to bargain with the Union or whether the Company's decision to subcontract and relocate all bargaining unit work was a mandatory subject of bargaining; whether the Union waived any right it arguably had to bargain; whether the Company failed and refused to furnish information relevant and necessary for the Union to effectively bargain if the obli- gation did in fact exist; and whether all contentions and differences between the parties should be deferred to ar- bitration. The Company also contends that even if it had an obligation to bargain in good faith, the parties bar- gained to impasse. 1. Work-preservation clause and waiver issue The Board has held that where a contract is in effect, the employer's obligation remains the general one of bar- gaining in good faith to impasse over proposed changes in the terms and conditions of employment before insti- tuting the changes. Inland Steel Container Co., 275 s SKA, TA 200/300 refers to the production of a cartridge for two newly designed typewriters The Company did not consider production of the cartridge by subcontractors to be in violation of the contract be- cause the work was never done at the Newington plant. Wheeler testified that the work was later returned to the plant after a grievance was filed. PERTEC COMPUTER 817 NLRB 929 (1985); Milwaukee Spring Division, 268 NLRB 601 (1984) (Milwaukee Spring 11), affd. on other grounds sub nom. Auto Workers v. NLRB, 765 F.2d 175 (D.C. Cir. 1985). Further, when the contract contains no ex- press prohibitions regarding the contemplated changes, Section 8(d) of the Act does not cover subjects such as relocation and subcontracting, because these changes are not mandatory subjects of bargaining unless it is found that the decision turned on labor costs. 19 Inland Steel; Otis Elevator Co., 269 NLRB 891 (1984) (Otis II). If, on the other hand, the contract contains prohibitions regard- ing the contemplated changes (often called work-preser- vation clauses), unless there is a waiver by the union, the employer must have union consent to make such changes. Inland Steel, supra; Milwaukee Spring II, supra. I find that the Union, in the contract and by its state- ments and conduct, did not waive its right to negotiate over the Company's decision to relocate unit work. In order to find a waiver, it is required that the waiver must be clear and unmistakable. Park-Ohio Industries, 257 NLRB 413 (1981), enfd. 702 F.2d 624 (6th Cir. 1983). Further, there is a presumption that unions have not abandoned rights guaranteed them in the Act. A-1 Fire Protection, 250 NLRB 217, 219 (1980). In the instant case, the Union repeatedly showed an interest in bargaining over the relocation of unit work. I also find the language "notify and discuss," appearing in the contract, is insuffi- cient to constitute a clear and unmistakable waiver by the Union. Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983); Park-Ohio Industries, supra at 413; Pepsi-Cola Distributing% Co., 241 NLRB 869 (1979), enfd, 646 F.2d 1173 (6th Cir. 1981). Applying the principles of Milwaukee Spring II to the case at hand, the question is whether the subject in dis- pute is identified in the contract. Article II, section 2, of the contract states that "the Company will not transfer work customarily performed by members of the bargain- ing unit to another Company facility, or contract or sub- contract out such work." If the subject in dispute is iden- tified in the contract, then the question is whether the contract language rises to the level of a work preserva- tion clause The contract provides that the Company may institute changes in certain instances. However, when the decision is based on the cost of manufacture or distribution, under the terms of the contract "the Compa- 19 Sec. 8(d) of the Act reads, in part, as follows: For the purposes of this section, to bargain collectively is the per- formance pf the mutual obligation of the employer and the represent- ative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conch- dons of employment, or the negotiation of an agreement or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a pro- posal or require the making of a concession. . . . . . [A]nd the duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms and condition contained in a contract for a fixed period, if such modifi- cation is to become effective before such terms and conditions can be reopened under the provisions of the contract [Emphasis added.] The contract in the mstant case contained no "reopener" clause. Manda- tory subjects of bargaining are those that set a term or condition of em- ployment or regulate the relation between the employer and the employ- ee. Latex Indastries, 252 NLRB 855 (1980) ny will notify and discuss with the union as soon as pos- sible the reasons why it believes such action to be neces- sary, so that the parties may explore alternatives to such transfer of work." The Company asserts that in the context of the bar- gaining history of the parties, the word "discuss" was not intended to mean "bargain." The Company argues that the Union understood that there is a distinction be- tween "discuss" and "bargain," since the Union proposed the term, and "bargain" was used elsewhere in the con- tract. I do not fmd valid the Company's argument that because "negotiate" was included in Article XVI of the contract, the parties intended "discuss" to mean some- thing other than "bargain" in article II, section 2. The Company also contends, inconsistently, that during con- tract negotiations it repeatedly sought the provision in order to be free to institute changes in bargaining unit work. However, the record does not reveal any specific discussion during negotiations regarding the definition of "discuss." In fact, the record reveals in testimony that even the Company's witnesses used the words "discus- sion" and "negotiation" synonymously. According to the Company, the term "discuss" merely obligates the Com- pany to "exchange information" without obtaining the Union's consent and without reaching settlement. Such an interpretation of the contract would, in effect, amount to a mere notice, leaving the Union with no actual alter- natives. If "discuss" was merely intended to mean an "exchange of information," one then questions why the contract recites that the Company, must "notify and dis- cuss . . . alternatives to such transfer of work." To con- strue the term "discuss" other than to mean "bargain" would suggest the parties agreed to discuss alternatives to relocate solely for the purpose of discussion. Such an interpretation would amount to an agreement to engage in an exercise of futility. See Kay Fries, Inc., 265 NLRB 1077 (1982), in which the Board held that an "agreement to discuss alternatives" constituted a request to bargain (emphasis added); and Preston H. Haskell Co, 238 NLRB 943 (1978), in which the Board held that once the parties meet and discuss a new contract, bargaining has begun. (Emphasis added.) Further, Section 8(d) of the Act refers to the duty to "confer in good faith," and also contains the word "discuss," both in the collectiVe-bargaining context. Thus, Section 8(d) defines bargaining by using the terms "confer" and "discuss." I fmd that the term "discuss" in the contract was not intended to connote a distinction other than the often un- derstood meaning, to negotiate or bargain, Thus I con- clude that the Company was obligated to obtain consent from the union for its midterm modification of the con- tract, which I find contained a work preservation clause. Oak Cliff-Golnzan Baking Co., 207 NLRB 1063 (1973), enfd. 505 F.2d 1302 (5th Cir. 1974), cert. denied 423 U.S. 826 (1975). 2. Mandatory subject of bargaining Assuming, arguendo, that the contract language is not deemed to reach the level of a work-preservation clause, then the question is whether the Company's decision to relocate work was a mandatory subject of bargaining. 818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Recently, in Otis II, the Board analyzed the question of the duty to bargain over managerial decisions in light of First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). 2° In Otis II the employer discontinued its re- search and development activities in Mahwah, New Jersey, consolidating them in its East Hartford, Con- necticut facility without first bargaining with the union. Unable to reach a majority, the four Board members, under three somewhat different theories, decided that the employer acted lawfully. Members Dotson and Hunter held that (at 892): [T]he critical factor [to determine] whether the de- cision is subject to mandatory bargaining is the es- sence of the decision itself Le., whether it turns upon a change in the nature or direction of the business, or turns upon labor costs; not its effect on employees nor a union's ability to offer alternatives. [Emphasis added.] Member Dennis concurred, adding a two-pronged test based on the analysis in First National Maintenance, supra. Under the Dennis test, the General Counsel must prove that (1) a factor over which the union has control was a significant consideration in the employer's deci- sion, and (2) the benefit for the collective-bargaining process outweighs the burden on the business. Former Member Zimmerman concurred in part and dissented in part. In his concurrence, he indicated that bargaining over a decision is mandatory when it is "motivated by reasons peculiarly suitable for resolution within the col- lective-bargaining framework," citing Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964). He added that such would not be the case when the union had no ability to affect the employer's decision. Thus, the plurality opinion in Otis II establishes that when a decision to relocate turns on labor costs, it falls within the scope of Section 8(d) of the Act and the employer has the general obligation to bargain and "confer" in good faith with the union to im- passe before unilaterally acting. See also Griffith-Hope Co., 275 NLRB 487 (1985). If, however, the decision turned on a change in the nature and direction of busi- ness, then the employer can make the unilateral change, even where labor cost is one factor in the decision. Haw- thorn Mellody, Inc., 275 NLRB 339 (1985).21 25 In First National Maintenance, the Supreme Court classified manage- rial decisions into three categories (I) decisions such as choice of adver- tising, product type, and financing that have indirect impact on employ- ment; (2) decisions such as the order of succession of layoffs and recalls, production quotas, and work rules that are "almost exclusively an aspect of the relationship between employer and employee", and (3) those deci- sions that are not primarily about the terms and conditions of employ- ment, but touch on matters of central concern to the union and its mem- bers. The Court held that employers may act unilaterally as to the first category, but must bargain with the union concerning the second For category three decisions, the Court applied a balancing test, requinng bargaining over management decisions only "if the benefit, for labor-man- agement relations and the collective-bargaining process, outweighs the burden on the conduct of business." 21 Whether the decision is deemed to be a mandatory subject for bar- gaining, an employer is obligated to bargain over the "effects" of the de- cision on umt employees First National Maintenance, supra There is no issue in the inStant case regarding "effects" bargaining. Applying the standards set forth in Otis II, the issue in the present case is whether the Company based its deci- sion to subcontract and relocate unit work on labor costs. The record reflects the Company's decision to re- locate was based on a consultant's manufacture cost study. The Company acknowledged that the study showed labor cost savings of $2 million out of a total savings of $2.6 million per year. However, the Company attributes its decision to a variety of other factors, such as low productivity, compliance problems with the state DEP, adverse publicity, and the dispute over noxious odors and chemical emissions, resulting in pending law- suits by the town of Newington. There is an abundance of evidence in the record that labor costs were the cru- cial, if not sole, factor in the Company's decision to move unit work. I am not convinced that the other fac- tors asserted by the Company had any impact on the de- cision to relocate. The Union was willing to continue meeting with the town counsel concerning the environ- mental dispute. In fact, the mayor indicated that the law- suit was less important than the Company remaining in Newington. The Union was also willing to waive a 5- percent wage increase in order to offset the cost of con- tinued compliance with State DEP regulations. Further, in a discussion with Union President Wheeler, the Com- pany acknowledged that it could remain in Newington with concessions from the Union of $1.5 million or per- haps less. 22 In the face of the Company's admission that labor costs played more than a significant role in the de- cision to relocate and subcontract, it then became the Company's burden to substantiate its assertions that other factors also played a significant role in its decision- making process. St. Regis Paper Co., 247 NLRB 745 (1980). Assuming, again arguendo, that the contract was not found to have a work-preservation clause (as I have found), then the work subcontracted to Mexico, repre- senting one-third of the business, may not be a mandato- ry subject of bargaining because it could be considered a change in the nature and direction of the business. How- ever, even if the subcontracting is not considered in the calculation of labor costs, the two-thirds of the business relocated to Georgia is a substantial portion of the busi- ness, representing at least two-thirds of the $2 million savings per year that the Company's own evidence re- flects was directly attributable to labor costs." If labor costs were the primary reason for the Company's reloca- tion decision, such costs are a subject over which the Union had some control. The Union was in a position to offer concessions that reasonably could have made a dif- ference in the Company's decision. I find and conclude that the decision to relocate work in Georgia and subcontract work to Mexico, resulting in plant closure and the termination of 165 employees, was a decision amenable to the bargaining process under Otis II. I am also persuaded by the circumstances in this case that the benefit for labor-management relations and the collective-bargaining process outweighs any burden that 22 The record is unclear whether this figure was a yearly or one-time amount. 23 Surely, the Company cannot rise above its own evidence. PERTEC COMPUTER 819 would have been placed on the Company's business by requiring it to bargain about its decision. 3. Impasse The Company contends that assuming it had a duty to bargain, it did not violate the Act because it negotiated to impasse. If it had been found that the contract did not contain a work-preservation clause and that the Compa- ny's decision to move unit work did not turn on labor costs, then the Company would not have been under an obligation to negotiate to impasse with the Union. Haw- thorn Mellody, supra. If, however, the Company's deci- sion turned on labor costs, as I have found, under Otis II, the relocation decision was a mandatory subject of bar- gaining and the Company was under the general obliga- tion to bargain to impasse. Whether a bargaining impasse exists is a matter of judgment. Taft Broadcasting Co., 163 NLRB 475 (1967). In Bell Transit Co., 271 NLRB 1272 (1984), the Board concluded that an employer could act unilaterally without violating the Act on the basis of its "reasonable belief" that negotiations were at an impasse. The Board in Bell Transit also reaffirmed the five rele- vant factors enunciated in Taft Broadcasting Co. to deter- mine whether an impasse existed, as follows: (1) the bar- gaining history; (2) the good faith of the parties in nego- tiations; (3) the length of negotiations; (4) the importance of the issue as to which there is disagreement; and (5) the contemporaneous understanding of the parties about the state of negotiations. In the case at hand, the Company argues that it had bargained to impasse with the union. However, in my opinion the evidence in the case and the Taft factors sup- port a contrary finding. Unlike Bell Transit Co., supra, in which the parties had an extended amicable relationship of 26 years, in this case the parties had a relatively short bargaining history of 1 year when relocation discussions began. Moreover, in Bell Transit Co., it was undisputed that negotiations were conducted in good faith. Here, the question of whether the Company bargained in good faith, as required in Sections 8(a)(5) and 8(d) of the Act, is raised by the issue of whether the Company met its duty to furnish relevant and necessary information, treat- ed more completely in the next section of this decision. In this case I cannot find a good-faith attempt to find a basis for agreement where the parties met and "dis- cussed" matters only six times and where the Company gave the Union a virtual "take it or leave it" proposition on phase A subcontracting (to Mexico). 24 The Company argues that impasse was reached on 29 March, but the record indicates the Company had, in effect, frozen its position on phase A of the shutdown plan. The Compa- ny's final offer of 23 March was simply a consolidation of its previous positions. Moreover, on cross-examina- tion, the Company's (then) industrial relations manager, James Conley, agreed that "the meetings between 21 February and 29 March were not negotiating ses- 24 For a comprehensive discussion and summary of the law regarding the definition of "good faith," see Weather Tee Corp. 238 NLRB 1535, 1557-1564 (1978), m which the Board indicated there is no simple yard- stick sions."25 The Company suggests that the Union's 8(a)(5) request for information on 28 March was an attempt to "bootstrap" out of the grievance procedure. I disagree and find it equally plausible that the Company's insist- ence on implementing phase A of the shutdown plan re- flected that the Company was engaging in deceptive ac- tions intended to ensure that agreement would not be reached. The Union was willing to forgo a 5-percent in- crease in wages, demonstrating a greater willingness to give. In my opinion, the Company adopted a purposeful strategy to ensure that bargaining or "discussions" would be futile or would fail and accomplish nothing. See Hudson Chemical Co., 258 NLRB 152 (1981). Thus, I find the company's assertion that it bargained to impasse inconsistent with the evidence and without merit.26 4. Deferral and the 8(a)(5) information requests a. The deferral contention The Company contends that the Union's requests for information should be treated in the same manner as other issues governed by the Board's deferral policy. The Company also maintains that the grievance-arbitra- tion provisions of the collective-bargaining agreement "clearly encompass" the waiver and work-preservation issues raised in the case and, therefore, that the case should be deferred to the contract's grievance-arbitration procedure. Article VI, section 1, of the contract defines a grievance as follows: A grievance shall mean a complaint by an employee or group of employees or the Union that there has been a violation, misinterpretation or misapplication of this agreement. A grievance shall also mean a complaint concerning other conditions of employ- ment, except that such complaints shall not be sub- ject to Step 4 of Section 2, and the decision at Step 3 shall be final. Section 2 of the agreement provides for a four-step pro- cedure that culminates in mandatory and binding arbitra- tion. 27 The company contends that the grievance-arbitra- tion procedure is more expeditious than Board proceed- ings and that the delay has prejudiced the Company in that an arbitrator's decision rendered within 30 days would have preceded layoffs of unit employees and avoided any resulting backpay liability. For these reasons the Company maintains that the Subregional Office should have deferred to the grievance-arbitration proce- dure rather than issuing a complaint. 25 Here again the Company's impasse defense rises above its own evi- dence to the contrary Conley was no longer with the Company when he testified. However, he was called as a company witness. 26 Although realizing that some of the Company's defenSes are alterna- tive, it nevertheless becomes increasingly difficult to discuss them in this decision because they are themselves inconsistent. 27 Under the provisions of sec. 2, grievances are initially submitted to the employee's immediate supervisor (step 1) Thereafter, unsettled griev- ances may be appealed to the grievance committee and company commit- tee (step 2), next to a group consisting of the grievance committee, the union president, and the company management committee (step 3), and finally to mandatory and binding arbitration (step 4) 820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD However, in agreement with the General Counsel and the Union, I fmd the issues involved in this case should not be resolved by deferral. The language in article 11, section 2, of the contract that obligates the Company to "notify and discuss" alternatives to work relocation is clearly a work-preservation clause. The clause gives the Union the contractual and statutory right to veto reloca- tion of unit work and entitles it to necessary and relevant information in order to bargain or intelligently investi- gate and file grievances. The Board has treated the term "discuss" as the equivalent to "bargain." See Kay Fries, supra. Further, Section 8(d) of the Act specifically de- fines collective bargaining as the duty to "confer in good faith." The duty is not to be construed as requiring par- ties to "discuss or agree" to modifications of the contract in midterm, as Section 8(d) itself recites. Further, the Company cannot itself successfully obtain deferral after denying information vital to the very proc- ess it now advocates. An 8(a)(5) violation based on an in- formation request is an exception to the Board's general deferral policy because denial of necessary information is a rejection of the bargaining process. See United Technol- ogies Corp., 268 NLRB 557 (1984). The General Counsel, in opposing deferral, relies on the reasons expressed by the Board in General Dynamics Corp., 268 NLRB 1432 (1984) (General Dynamics 1). See also General Dynamics Corp., 270 NLRB 829 (1984) (General Dynamics II). In General Dynamics I the Union had requested information to determine whether to file grievances regarding the subcontracting of unit work. The Board, in rejecting the deferral contention, stated as follows at 1432 fn. 2: [W]e find no merit in encumbering the process of resolving the pending subcontracting grievances with the inevitable delays attendant to the filing, processing, and submission to arbitration of a new grievance regarding the information request. Such a two-tiered arbitration process would not be consistent with our national policy favoring the voluntary and ex- peditious resolution of disputes through arbitration nor would it be consistent with prior Board decisions in this area. See, e.g., Safeway Stores, 236 NLRB 1126 fn. 1 (1978); St. Joseph's Hospital, 233 NLRB 1116 fn. 1 (1977). [Emphasis added.] The Board's reasons for refusing to defer in General Dynamics I are consistent with the reasoning by the Su- preme Court in NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). There, the Court observed that the Board's action, in ordering the employer to furnish the union the requested information, furthered the arbitral process. The Court stated that if all claims had to be processed through to arbitration, "[it would force the union to take a grievance all the way through to arbitration with- out providing the opportunity to evaluate the claim. The expense of arbitration might be placed upon the union only for it to learn that the machines had been relegated to the junk heap." (Id. at 438-439.) In advocating deferral, the Company relies on United Technologies Corp., supra, which extended the Collyer doctrine to cases arising under Section 8(a)(1) and (3) of the Act." The Company also relies on United Aircraft Corp., 204 NLRB 879 (1973), in which the Board deter- mined that the "waiver" question in the circumstances of the case would best be resolved by arbitration." How- ever, subsequent to the Board's policy announced in Col- lyer, the Board implicitly agreed with the Supreme Court's rationale in Acme Industrial Co., supra, in con- cluding that an 8(a)(5) allegation based on a denial of in- formation relevant to the evaluation and processing of a grievance would not be deferred to arbitration. In TRW, Inc., 202 NLRB 729, 731 (1973), the Board adopted the administrative law judge's holding that "where the em- ployer withholds requested information which is poten- tially relevant in assisting a union intelligently to evalu- ate or process a grievance—unless the statutory right to such information is effectively waived in the contract— the Board's Collyer doctrine is not applicable to such an issue." See also Voorhees Painting Co., 275 NLRB 779 (1985); General Dynamics II, supra; General Motors Corp, 257 NLRB 1068 (1981); and Worcester Polytechnic Insti- tute, 213 NLRB 306 (1974). In the case at hand, the Company either overlooks or impliedly ignores the Union's statutory right to relevant information, absent waiver. 30 This statutory right has been accorded promi- nence by the overwhelming weight of time-tested deci- sions by the Board and the Courts. See NLRB v. Acme Industrial Co., supra; New York Times Co., 270 NLRB 1267 (1984); Pfizer, Inc., 268 NLRB 916, 918 (1984), enfd. 763 F.2d 887 (7th Cir. 1985); National Cleaning Service, 265 NLRB 1352, 1353 (1982); Chesapeake & Potomac Telephone Co., 259 NLRB 225, 226-227 (1981), enfd. 687 F.2d 633 (2d Cir. 1982); General Dynamics I, supra at 1632. Cf. United Aircraft Corp., supra. Since United Air- craft, the Board has not deferred to arbitration the issue of the statutory right to the production of information under Section 8(a)(5) of the Act. See General Dynamics Although Board decisions have followed the Federal labor policy favoring arbitration, e.g., Collyer Insulated Wire, supra; United Technologies Corp., supra, it has, as noted above, rejected the notion that blind adherence thereto serves the policies of the Act or furthers the col- lective-bargaining process. Accordingly, I find this case to be properly before the Board and reject the Compa- ny's contention that deferral is appropriate. b. Whether the requested information was relevant and necessary This case turns largely on whether the requested infor- mation was relevant and necessary to the Union in the 28 In Caliper Insulated Wire, 192 NLRB 837 (1971), the Board estab- lished a pohcy of deferral to the grievance-arbitration process to encour- age the pursuit of collective-bargaining solutions, holding that the Union's 8(a)(5) charge, alleging unilateral changes m conditions of em- ployment, should be deferred to the grievance-arbitration procedure of the parties' labor contract 29 In contrast with the contract m this case, in United Aircraft Corp., a provision of the contract required production of pertinent information at step 1 of the grievance procedure step the Board found to be a waiver of the Union's right to information earlier in the proceedings. 29 The relevancy issue will be discussed in the next subsection of this decision. PERTEC COMPUTER 821 exercise of its responsibilities as the exclusive bargaining representative for the unit employees. The law is well settled that an employer's duty to bargain with the ma- jority representative of its employees includes the duty to furnish information relevant to a labor union's per- formance of its duties under a collective-bargaining agreement. Pfizer, Inc., supra; Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979); NLRB v. Acme Industrial Corp., supra; NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). The duty to provide information exists "if there is a probability that such data is relevant and will be of use to the union in fulfilling its statutory duties." AGC of California, 242 NLRB 891 (1979), enfd. 633 F.2d 706 (9th Cir. 1980). The courts have held that information per- taining to mandatory subjects of bargaining, e.g., wages, hours, and terms and conditions of unit employees, is "so intrinsic to the core of the employer-employee relation- ship, that such data is considered presumptively rele- vant." San Diego Newspaper Guild; 31 Teleprompter Corp. v. NLRB. 32 Teleprompter Corp. also held that la] union request for such data must be honored; refusal constitutes in most instances a per se violation of the duty to bargain in good faith." See also Boston Herald-Traveler," in which the court stated "it is not required that the union show the precise relevancy of the requested information to particular current bargaining issues," quoting the Board in Whitin Machine Works, 34 in which the Board found "it is sufficient that the information sought by the union is related to the issues involved in collective bar- gaining, and that no specific need as to a particular issue must be shown." The Board has observed recently that the "information need not necessarily be dispositive of the issue between the parties, it need only have some bearing on it." Pfizer, Inc., supra. Further, the Board and the courts have employed a broad discovery-type stand- ard. Pfizer, Inc., supra; Procter & Gamble Mfg. Co., 237 NLRB 747 (1978), enfd. 603 F.2d 1310 (8th Cir. 1979); General Motors Corp., 257 NLRB 1068 (1983), enfd 700 F4d 1083 (6th Cir. 1983); Press Democrat Publishing 237 NLRB 1335 (1978), enfd. 629 F.2d 1320 (9th Cir. 1980). When the union requests information that is not ordinarily pertinent to its performance as the bargaining representative, such as data on financial and sales infor- mation, the union is under the burden to show that the information is relevant to the bargainable issues. Ohio Power Co., 216 NLRB 987 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976); NLRB v. Rockwell-Standard Corp., 410 F.2d 953, 957 (6th Cir. 1969). However, when an em- ployer makes claims that it would go broke or bankrupt if it granted a wage increase as requestd by the union, the employer must present adequate information to enable the union to intelligently determine whether the employer was making its best offer. Blu-Fountain Manor, 270 NLRB 199 (1984) (involving a union request for "fi- nancial books and records"). 3' 548 F.2d 863, 867 (9th Cir. 1977), enfg Union-Tribune Publishing Co., 220 NLRB 1226 (1975) 32 570 F.2d 4,-8 (1st Cir. 1977), enfg. 227 NLRB 705 (1977) 33 223 F.2d 58, 63 (1st Cir 1955), enfg 110 NLRB 2097 (1954). 34 108 NLRB 1537 (1954), enfd. 217 F.2d 593, 594 (4th Cir. 1954), cert. denied 349 US. 905 (1955) However, in applying the foregoing, I find, for reasons noted below, that much of the requested information was presumptively relevant. In this case the question is whether the Company unlawfully refused to bargain by failing to provide the Union with a copy or reasonable and timely access to the following: (1) the actual manu- facturing cost study; (2) substantiating financial books and records; and (3) certain subcontracting information. (1) The manufacturing cost study and substantiating books and financial records The Union made its first request for a copy of the manufacturing cost study in a letter from Lazarowitz to the Company's comptroller, Ed Baroody, on 17 Febru- ary. However, the Company did not allow the Union access to the actual study until Lazarowitz' 1 March visit to the Newington facility, when he insisted that summa- ry reports were not sufficient to verify or substantiate the Company's financial position. The Company then showed Lazarowitz a 43-page cost study, but refused his request for a copy. I find the Union's repeated requests for a copy of the study were reasonable, in that the cost study was one of several items relevant and necessary for the Union to meet its obligation under the work-preservation clause of the contract. Indeed, Section 8(d) of the Act creates a duty to bargain collectively "with respect to wages, hours, and other terms and conditions of employment." (Emphasis added.) The cost study clearly concerns. "terms and conditions of employment" in this case, i.e., the contract prohibition of the relocation and subcon- tracting of unit work, subject to the statutory mandate of good-faith bargaining. Further, even if there had been no express prohibition in the contract regarding the reloca- tion and subcontracting of unit work, the Company had a statutory duty to timely furnish the cost study because, as I have found, the relocation of work turned on labor costs and was a mandatory subject of bargaining. As such, the burden is on the Company to show a lack of relevance of the requested information. See Procter dc Gamble Mfg,, supra. The Company contends that even if it was under an obligation to furnish copies of the cost study, it met the duty by allowing Lazarowitz to analyze the study on its premises for as long as necessary. However, the Compa- ny's offer to pay Lazarowitz' expenses so that he could continue to evaluate the study was an offer of too little that came too late. The offer was made only after the Company changed its position, maintained since mid- February, not to allow Lazarowitz to visit the Newing- ton facility, and after Lazarowitz demanded to see the actual cost study on 1 March. Thus, I conclude that such restrictive access to the cost study only 20 days before the Company's own 21 March deadline to decide whether to relocate did not allow the Union sufficient time for analysis and effective negotiation. According to Lazarowitz, an evaluation of the study could have been done in 1 or 2 weeks. La- zarowitz indicated that in the past, elaborate evaluations required about 2 weeks, but that it is impossible to pre- dict the time needed to complete a report. Even under 822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the shortest timeframe, a report produced in 1 week would allow only 8 working days to bargain before the 21 March deadline. If 2 weeks were necessary to produce the report, the 21 March deadline would allow only 3 days for bargaining. I also conclude that the Company did not meet its obligation to furnish relevant information by giving the Union summaries of the cost study. Such summary accounts are even further removed from the original financial records, when prepared, as here, by a Company employee from the figures assem- bled by unknown consultants. To accept the company's summary accounts, the Union would have to rely com- pletely on the accuracy and integrity of the Employer. The Company's claim that it was losing money and could achieve higher profits through the relocation and subcontracting of work amounts to a claim of inability to pay. 35 When an employer claims economic inability to pay, conclusory facts and figures can be misleading and the union is entitled to the source material on which the study is based. See Met/ox Mfg. Co., 153 NLRB 1388 (1965), enfd. 378 F.2d 728 (9th Cir. 1967). Even if the Company had offered reasonable and timely access to the cost study, the law is clear that the Union was entitled to see the books and records to sub- stantiate the Company's financial situation. In my opin- ion, the cost study was used as a smokescreen to keep the actual records from the Union. The Company led the Union down the garden path, creating an issue over the cost study, whereas the true issue was the Union's right to access to the actual books and records. The record in this case reflects that as early as 21 November 1983 Wheeler had requested access to the Company's financial records. Although the Company furnished a large amount of financial information requested by the Union, what it did not provide was access to substantiating fi- nancial records, the actual books and records. When a company in so many words raises a plea of economic hardship, the union then has a right to inspect the books, and no impasse can be reached so long as the employer refuses to provide such financial records. Harvstone Mfg. Corp., 272 NLRB 939 (1984). See also Met/ox Mfg., supra, in which the Board approved a check of the em- ployer's books by a union accountant, limited to the pur- poses of certifying profit-and-loss figures offered by the employer and determining whether there were factors that would make the employer's figures misleading. The Company relies on NLRB v. Abbott Publishing Co., 331 F.2d 209 (7th Cir. 1964), in which the court re- fused to enforce the Board's order (139 NLRB 1328 (1962)) that the employer was obligated to turn over his books to substantiate a plea of poverty. In that case, however, the employer granted the Union's request for information that would have allowed union bookkeepers ample time to inspect certain confidential infOrmation, but the Union never took advantage of the employer's offer." The Company also relies on Teamsters Local 760 35 In its brief, the Company asserts that by I March "the union had all the information necessary to verify the company's 'poverty plea." 36 I also note at this point that I am dutybound to follow the Board's law and not that of the Federal circuits. v. NLRB, 316 F.2d 389 (D.C. Cir. 1963). In that case the court affirmed the Board's decision in part (130 NLRB 1269) in holding that the employer can attach certain conditions in making available its books and records. However, the union admitted the conditions were "not unreasonable," and there were no time constraints. The cost study itself was drawn and extrapolated from the Company's books and records. Without the substanti- ating information, such a cost study could be as mislead- ing as the summaries and is not the same as, nor a fair substitute for, the original books and records that, if not made available to the Union, are thereby immunized from question, correction, discussion, or meaningful ne- gotiation. The Company further contends that the cost study and actual books and records are protected by a privilege of confidentiality, justifying limited access to only the cost study provided to the Union. The Company here cites White Furniture Co., 161 NLRB 444 (1966), affd. sub nom. Furniture Workers v. NLRB, 388 F.2d 880 (4th Cir. 1967). However, in that case the employer made no sug- gestion of inability to pay, and had already complied with the union's request for substantial amounts of infor- mation. The Board also found in White Furniture, supra, that the union failed to show a special need for the infor- mation withheld. In this case, I find the Company's con- fidentiality contentions to be frivolous and without merit. Considering the potential threat of complete plant clo- sure, the Union was entitled to the financial books and records to substantiate the Company's claim of financial hardship. Thus, I find that the Union met any burden it had to show special need for access to such data. Ohio Power Co., supra; Rockwell-Standard Corp., supra; Foun- tainhead Development Corp., supra. In light of the circum- stances, particularly the Company's complete failure to provide access to substantiating books and records and its dilatory tactics in providing access to the cost study, I find that the Company failed to bargain in good faith by denying and improperly limiting timely access to rele- vant information necessary for the Union to meet its stat- utory duties. (2) The subcontracting information The Company contends that the Union's request for all subcontracting information was not relevant and neces- sary in order for the Union to meet its statutory duty. According to the Company, the requested information concerning SKA, TA 200/300 subcontracting was fur- nished to the Union, but the Union's request for-addition- a! information was not related to the work relocation plan and was merely devised to "bootstrap" the Union out of deferral to the grievance-arbitration process. Board law is clear that information is relevant if it is rea- sonably necessary in order to administer a collective-bar- gaining agreement, detect infractions of its terms, and to intelligently counsel the employees whom it represents. The Board has also held that a Union is entitled to infor- mation requested that bears on the union's determination to file a grievance or is helpful in evaluating the proprie- ty of going to arbitration. Brooklyn Union Gas Co., 220 NLRB 189 (1975). PERTEC COMPUTER 823 Contrary to the Company's contention, I find that the Union's 28 March and 6 August written requests for sub- contracting information clearly set forth relevant reasons for the request. 37 The Union stated that the information was necessary in order to police the work-preservation clause of the contract, to intelligently file grievances, and to negotiate concessions with knowledge of previous subcontracting terms. No special knowledge is required to recognize that information about subcontracting is re- lated to the contract's express prohibition against subcon- tracting unit work. It also does not follow in this case that the Union waived its right to information about sub- contracting because the Company had previously sub- contracted work without union objection. During previ- ous subcontracting, the Union was not faced with plant closure or relocation or the loss of unit employees. C. The 8(a)(3) Issue and Union Animus In addition to violations of Section 8(a)(5) and (1) of the Act, the complaint also alleges a violation of Section 8(a)(3) and (1) of the Act. However, the briefs curiously do not address either the 8(a)(3) issue or the subject of union animus on the part of the Company. I deem it nec- essary to treat both subjects in this decision. At first blush one might conclude in this case that the Company was motivated by legitimate business objec- tives. Indeed, a savings of $2.6 million annually is size- able. However, not only were some 165 employees in- volved, there was a union and a contract. The contract was violated and employee rights contained therein were violated. The unit was wiped out and two-thirds its work was relocated to a new plant in a southern right-to-work State, with the remainder subcontracted to Mexico. Yet, with the Union out of its hair and the lives of 165 people significantly affected by the withdrawal or cancellation of rights they thought secure by contract, the Company would have us look the other way and say that's life and also life under law." Such should not be and is not the case here. Although the Board discussed Section 8(a)(3) and union animus in Milwaukee Spring II, supra at 604, it found no need to decide the issue because there was no 8(a)(5) violation found and the complaint was dismissed. More recently the Board found it unnecessary to deter- mine whether a respondent violated Section 8(a)(3) be- cause an 8(a)(5) violation was found, and backpay was ordered. The Board indicated that an 8(a)(3) violation would be cumulative and would not affect the remedy. Pennsylvania Energy Corp., 274 NLRB 1153 (1985). In light of the facts and circumstances of this case, I find such a determination to be necessary. I find the Compa- ny's actions, standing alone, were discriminatory and vio- lative of Section 8(a)(3) of the Act as alleged in the amended complaint. In this regard, I also find that the Company had antiunion animus, as its actions were in- herently destructive of important employee rights. See NLRB v. Great Dane Trailers, 388 U.S. 26 (1967). Addi- 39 In fact, as early as 8 December 1983 the union had requested, in writing, detailed information from the Company regarding all subcon- tracting. 39 The record reflects that the labor force in Newington was not tran- sitory. Some employees had been with the company over 30 years. tionally, I further find, under the facts and circumstances of this case, that the 8(a)(3) violation also flowed from my fmding that the Company's relocation decision vio- lated Section 8(a)(5) of the Act. See Milwaukee Spring I, 265 NLRB 206 (1982). On the foregoing findings of fact and initial conclu- sions of law and on the entire record, I make the follow- ing CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. 3.The Respondent violated Section 8(a)(5) and (1) and Section 8(d) of the Act by its failure to timely furnish necessary, needed, and relevant information to the Charging Union and by its refusal to furnish necessary, needed, and relevant information to the Charging Union, all which information was necessary for the Charging Union to fulfill its statutory duty under Section 8(d) of the Act. 4. The Respondent violated Section 8(a)(3) and (1) and Section 8(d) of the Act in that it discriminated against its employees in regard to the tenure and terms and condi- tions of their employment by failing to provide the Charging Party with necessary and relevant information and thereby failing to bargain in good faith and by termi- nating the employees through plant closure in violation of the terms of the collective-bargaining agreement with the Charging Party. 5. The violations found in paragraphs 3 and 4, above, affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Company engaged in unfair labor practices within the meaning of Section 8(a)(5), (3), and (1) of the Act, I shall recommend that it be ordered to take certain affirmative action designed to effectuate the policies of the Act. The Company's wrongful unilateral relocation of unit work resulted in the termination of some 165 employees and closure of the plant. The Company projected that completion of the three shutdown phases would be ac- complished or completed by March or April 1985." It is well established that in fashioning an appropriate remedy "we must be guided by the principle that the wrongdoer, rather than the victims . . should bear the conse- quences of his unlawful conduct," and that the remedy should be adapted to the situation that calls for redress. Transmarine Navigation Corp., 170 NLRB 389 (1968); Ozark Trailers, 161 NLRB 561 (1966). The nature of the violation would normally justify ordering the Company 39 The Company's board of directors approved the shutdown and relo- cation plan in general about 22 March. Sometime between 29 March and 9 April, Snider concluded that the full plan would go forward no matter what transpired regarding the Union. In considenng the remedy m this case, the assumption is made that the plant is now closed and the Compa- ny is far removed from Newington 824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to restore the situation existing prior to the shutdown of the Newington operation by reopening the facility. The General Counsel requests an order that would require such a restoration to the status quo ante, as provided in Los Angeles Marine Hardware Co., 235 NLRB 207 (1978), enfd. 602 F.2d 1320 (9th Cir. 1979). However, under the circumstances of this case, including the lapse of time, the removal and sale of machinery, and the distance of the relocation, that remedy would be impractical and unduly burdensome for the Company. See Whitehall Packing Co., 257 NLRB 193 (1981); Ozark Trailers, supra. The violation would also justify ordering the Compa- ny to furnish the information requested and not received by the Union. But the Company's violations of Section 8(a)(5) and (1) of the Act in this respect are now moot as the actions of the Company have rendered this informa- tion useless. Therefore, I shall not recommend that the Company be compelled to furnish the requested informa- tion. I shall also not recommend the usual cease-and- desist provisions nor that the Company post the usual and appropriate notice because the Company's Newing- ton plant is now nonexistent. Accordingly, I shall recommend a make-whole remedy in order to effectuate the policies of the Act. I shall recommend that the Company be ordered to pay all employees, terminated because of the plant closure, back- pay at the rate of their normal wages from the date each was terminated until the expiration of the collective-bar- gaining agreement on 23 March 1985. 4° The backpay shall also include any insurance and pension benefits which were due and payable under article XII of the contract. See Menyweather Optical Co., 240 NLRB 1213 (1979). Interest on all backpay due shall be computed in the manner prescribed in F. W Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).41 [Recommended Order omitted from publication.] 4° The contract expired on 23 March 1985. I am aware that it contams a continuation or extension clause. However, I can find no authority to extend the backpay date beyond the expiration date. 41 See generally Isis Plumbing Co., 138 NLRB 716 (1962).