The Reece Corp.

448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Reece Corporation and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW and its Local 1596. Case 1-CA-18619 DECISION AND ORDER July 23, 1989 BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On July 23, 1982, Administrative Law Judge James L. Rose issued the attached decision. The Charging Party and the General Counsel filed ex- ceptions and supporting briefs. The Respondent filed a brief in answer to the exceptions and a brief in support of the judge's decision. 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. 1. FACTUAL BACKGROUND The Respondent is engaged in the manufacture, sale, and distribution of industrial sewing machines and related products. Its principal manufacturing facility was in Waltham, Massachusetts, and it has additional plants in Leiden, Holland; Gorham, Maine; Stantonsburg, North Carolina; and a satel- lite plant in Wilmington, Massachusetts. The Re- spondent and the Union have a long bargaining his- tory and a series of collective-bargaining agree- ments, the most recent of which was effective from March 1, 1980, to February 28, 1983 . Article III of the agreement, entitled "Management," states: The Union recognizes that, subject to the ex- press provisions of this Contract, the supervision, management and control of the Company's busi- ness, operations, working force and plant, are ex- clusively vested in the management of the Com- pany. Without limiting the generality of the fore- going, the Union recognizes that, subject to the express provisions of this Contract, the right to plan, direct and control the Company 's business operations and working force, to hire, suspend, promote or demote , transfer or lay off employ- 1 The General Counsel and Charging Party have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings ees, and, for just and proper cause, discipline or discharge employees, and the right to deter- mine the hours of work, and to assign employ- ees to work, to determine the methods by which the work shall be performed, the job classifications, the work tasks and standards of performance for employees, and the right to abandon or discontinue any production, methods or facilities, or to introduce new or improved materials, production, methods or facilities, to purchase or otherwise acquire raw, semi-fin- ished or finished materials from such source as is deemed desirable, and to sub-contract any work, is vested exclusively in the Management of the Company. [Emphasis added.] The agreement also includes a severance al- lowance provision that states: When in the sole judgment of the Company, it decides to close permanently the plant or discontinue permanent- ly a department of the plant or portion thereof and terminate the employment of individuals, an employee whose employment is terminated as a result thereof . . . shall be entitled to a sev- erance allowance. [Emphasis added.] In negotiations for the 1980-1983 contract in January 1980, the Respondent stated that it needed relief from the economic and operating effects of prior contracts with the Union, contending that direct labor and operating costs were too high. The Respondent, however, was unable to obtain the relief it sought, and in its first quarter report and annual meeting review of 1980, issued after the contract had gone into effect, expressed concern about the continued viability of the Waltham plant. Numerous letters and meetings followed between the Union and the Respondent. The Respondent's position was that owing to adverse market condi- tions it found itself with excess manufacturing ca- pacity and a sharp decline in the demand for its products. As the Waltham facility was its most costly plant to operate, the Respondent recom- mended to its board of directors that Waltham be closed and the remaining production transferred to other facilities. The Respondent and the Union were unable to reach an agreement to keep the Waltham facility operational. On April 16, 1981, the board of directors, after two postponements of its decision for further dis- cussion between the parties, approved manage- ment's recommendation to close the Waltham plant and transfer the work. On June 3, 1981, the Re- spondent began to shut down its Waltham facility and transfer the work to its plants at Stantonsburg, North Carolina; Gorham, Maine; and Leiden, Hol- land. The Waltham plant was closed on December 294 NLRB No. 33 REECE CORP. 18, 1981. On December 29, 1981, the Respondent completed the sale of the Waltham office, plant, and land, taking back a long-term lease on the office and a short-term lease on the plant for pur- poses of selling the nontransferred equipment. Ap- proximately 57 percent of the production machin- ery was transferred to the Respondent's other fa- cilities. During the discussions between the Respondent and the Union over closing, the Union requested certain information to ascertain whether the Re- spondent's contention that the Waltham plant was too costly was in fact true. The Respondent for the most part refused to supply the information, al- though it did make a presentation to the Union re- garding production costs at Waltham. Following the decision to close the plant, the parties met to discuss the effects of the decision and the Respondent paid $1,046,356.76 in severance pay to the 120 active employees and approximately 70 other employees who were then on layoff status. H. THE JUDGE'S DECISION The judge concluded that the Respondent did not violate the Act by closing its manufacturing fa- cility in Waltham and transferring unit work else- where. He found that the Respondent's decision to close and transfer was not motivated by union animus, but rather was prompted by the Respond- ent's legitimate economic concerns-specifically the direct and indirect costs of the collective-bar- gaining agreement with the Union. The judge also held that the Respondent's deci- sion to close was not a mandatory subject of bar- gaining. He found that the Respondent had made a management decision to expand its business that ul- timately proved costly to the Company. As a result, the Respondent decided to close its costliest facility and consolidate manufacturing elsewhere. The judge found that the decision to close and transfer involved a significant investment of capital and affected the scope and direction of the Re- spondent's business and thus was a matter of "en- treprenurial control" that did not require bargain- ing.2 The judge also found the decision to close the Waltham facility, with or without the concomitant transfer of bargaining unit work, was not a mid- term modification or repudiation of the collective- bargaining agreement. He found that the Respond- ent complied with the terms of the agreement, in- cluding the payment of $1,046,365.76 in severance pay. The judge also determined that even assuming that the matter was a mandatory subject of bar- 2 Citing General Motors Corp, 191 NLRB 951 (1971), and National Car Rental System, 252 NLRB 159 (1980) 449 gaining, or a matter that would require the consent of the Union whether there was bargaining or not, the Union did in fact consent by agreeing to the management-rights and severance pay clauses and thus by "clear implication," the Respondent had the specific contractual right to close the facility. The judge thus found there was no violation. He also found no violation in the Respondent's failure to supply the Union with requested information be- cause the Respondent had no duty to bargain. III. ANALYSIS We do not adopt the judge's conclusions, and for the reasons set forth below, we find that the Re- spondent violated Section 8(a)(5) and (1) by closing its Waltham facility and transferring the work to its other plants, by terminating its employees, and by refusing to furnish information to the Union.3 First, we find that the decision to close the Waltham fa- cility and terminate the employees was not in fact a decision to terminate all the production that oc- curred there, but rather, a decision to transfer work to a different location, where it would be done by other employees. For reasons set forth below, we find, contrary to the judge, that this decision was a mandatory subject of bargaining. Second, we find, contrary to the judge and our dissenting colleague, that the collective-bargaining agreement, as con- strued in light of its bargaining history, does not es- tablish that the Union waived the right to bargain over this decision. Finally, we find, as to an issue the judge found it unnecessary to reach, that al- though the Respondent had initially engaged in some bargaining with the Union over the possibili- ty of avoiding the relocation of operations, it made and implemented the decision without having satis- fied its statutory bargaining obligation. That failure to bargain in good faith entailed two interrelated violations: implementing the decision without having bargained to impasse and refusing to supply relevant information requested by the Union. 1. In Otis Elevator Co., 269 NLRB 891 (1984), which applied the principles of the Supreme Court's decision in First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), to a decision to transfer and consolidate research and develop- ment operations to another location, the Board, in a plurality opinion, stated that the critical factor in determining whether a management decision is sub- 3 However, for the reasons set forth in Milwaukee Spring Division, 268 NLRB 601 (1984), affd sub nom Auto Workers v NLRB, 765 F 2d 175 (D C Cir 1985), we find no merit in the General Counsel's and the Charging Party's exceptions insofar as they contend that the relocation of unit work constituted a repudiation of the collective-bargaining agree- ment in violation of Sec 8 (d) and Sec 8(a)(5), and that the resulting ter- mination of employees violated Sec 8(a)(3) 450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ject to mandatory bargaining under Section 8(d) is "the essence of the decision itself, i.e., whether it turns upon a change in the nature or direction of the business, or turns upon labor costs . . . ." Id. at 892. As explained below, we fmd that the deci- sion at issue in this case did turn essentially on labor costs, although other factors were also in- volved. For that reason, it is a mandatory subject under the Otis plurality test. We also fmd that it meets the separate tests proposed by former Mem- bers Zimmerman and Dennis.4 As the judge found, a decline in demand for the Respondent's products was the initial impetus for the Respondent's decision to consolidate oper- ations, but the reasons for the selection of Waltham as the plant whose operations would be relocated were essentially reflected in the bargaining over the 1980-1983 agreement and the Respondent's abortive efforts after the contract had gone into effect to achieve changes in that agreement with respect to matters that are indisputably related to labor costs. At the outset of negotiations for the 1980-1983 contract, the Respondent's vice president of manu- facturing, Joseph Tyminski, expressed concern that the collective-bargaining agreement imposed exces- sive costs on the Waltham plant in the form of wages, benefits, and uneconomical operating re- strictions. Nevertheless, the Respondent entered into a contract with the Union for the 1980-1983 period that did not provide it with the claimed needed relief. At the 1980 annual stockholders meeting, held after the contract had gone into effect, President and Chief Operating Officer Hugh R. Silbaugh stated that the Respondent's failure to obtain relief from the Union put the future of the Waltham plant at serious risk. In subsequent meetings with the Respondent and in written communications, the Union expressed a willingness to make concessions in order to revital- ize the Waltham plant. The Respondent replied that changes were needed in wages, benefits, and working time spent on union matters, and argued that it needed more freedom to move products and parts from facility to facility. As explained in more detail below, the parties did not reach agreement on contractual changes before the Respondent im- plemented its decision to close Waltham and trans- fer the work, but throughout the unsuccessful ne- gotiations, the Respondent made it appear to the Union that the decision to close Waltham and send its work elsewhere could be avoided if the Union 4 See Eltec Corp, 286 NLRB 890 fn 8 (1987), enfd 870 F 2d 1112 (6th Cir. 1989), for a brief summary of former Members Dennis' and Zimmer- man's proposed tests . The application of their tests to the facts of this case is set out in fn 5 , infra. would make contractual concessions to the Re- spondent's satisfaction.5 Had the Respondent ade- quately responded to the Union's requests for fi- nancial information, it might either have achieved the concessions that would make the relocation un- necessary or, failing that, have reached an impasse that would render its subsequent implementation lawful. In light of its bargaining positions, howev- er, it is unreasonable for the Respondent now to argue that the decision turned essentially on factors other than labor costs. Accordingly, we conclude that the decision to close Waltham and relocate much of its equipment and operations to other fa- cilities was a mandatory subject of bargaining under Otis Elevator, supra.6 2. Having determined that the decision at issue here was a mandatory subject, we next must decide whether, as the judge found, the Union contrac- tually waived its statutory right to bargain over the subject. We begin by analyzing the provisions of the col- lective-bargaining agreement-the management- rights clause and the severance pay clause-on which the judge and our dissenting colleague rely for their conclusion that the Union waived its bar- gaining rights. We note that although the manage- ment-rights clause refers to the right to "abandon or discontinue any production, methods or facili- ties" and the severance pay clause refers to a deci- sion to "close permanently the plant or discontinue permanently a department of the plant or portion thereof and terminate the employment of individ- uals," neither clause addresses the situation in which production and equipment are not perma- nently discontinued or sold, but rather are trans- ferred elsewhere. See Allied Mills, 218 NLRB 281, 285-286 (1975), enfd. mem. sub nom. Grain Millers Local 110 v. NLRB, 543 F.2d 417 (D.C. Cir. 1976), cert. denied 431 U.S. 937 (1977) (clause granting 5 By contrast, there was no similar pattern of seeking union contract concessions in Otis Elevator, supra. In addition, a significant factor in the relocation there was the desirability of locating research and develop- ment operations near the parent corporation 's plant and merging "prod- uct improvement" operations with research and development operations Those considerations had nothing to do with matters governed by the collective-bargaining agreement 9 Applying former Member Dennis' test, we conclude that a factor over which the Union had control (i e , labor costs) was a "significant consideration in the employer's decision " and that "the benefit for the collective-bargaining process outweigh[ed] the burden on the business," in view of the significant impact on the employees and the Respondent's own effective admission (through its contract demands) that concessions by the Union might negate the necessity of going through the extensive effort required for the relocation Otis Elevator, supra, 269 NLRB at 897. The decision at issue in this case would clearly be a mandatory subject under the test applied by former Member Zimmerman , who would find any decision "amenable to collective bargaining" to be a mandatory sub- ject, and would regard any decision as amenable if it is "motivated by labor costs" or even if "union concessions may substantially mitigate the concerns underlying the employer 's decision " Id at 900, 901 REECE CORP severance pay when production permanently dis- continued not a waiver of right to bargain over transfer of production from closed plant). The management-rights clause also reserves the right to "subcontract" work. In neither clause, however, did the Respondent reserve the right unilaterally to transfer or relocate work from one of its own plants to another. Unlike the judge, we cannot find, simply on the basis of the contract language, that the Union has waived its right to bargain over such a relocation decision because we do not find that the language meets the "clear and unmistakable" standard that governs the waiver of statutory rights. Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983); Litton Systems, 283 NLRB 973 (1987), enf. denied 868 F.2d 854 (6th Cir. 1989).' Neither do we find that extrinsic evidence, includ- ing the relevant bargaining history-evidence on which our dissenting colleague relies-establishes a waiver. Indeed, in our view that evidence rein- forces our finding that no waiver of bargaining rights existed. Bargaining history can establish a waiver only if "[i]t can be said from an evaluation of the prior ne- gotiations that the matter was `fully discussed' or `consciously explored' and that the union 'con- sciously yielded' or clearly and unmistakably waived its interest in the matter." Park-Ohio Indus- tries v. NLRB, 702 F.2d 624, 628 (6th Cir. 1983). An examination of the record does not disclose that the parties specifically discussed and that the Union "consciously yielded" its right to bargain over transfers of unit work. In fact, it appears from the bargaining history that the Respondent be- lieved that it did not have the right unilaterally to relocate work, as evidenced by its proposals during discussions prior to the Waltham closing. On No- vember 24, 1980, the Respondent wrote the Union, stating, inter alia, that "[W]e must have the free- dom in our multi-plant system of today, to move products and parts from facility to facility as ' The court of appeals in Litton Systems denied enforcement on the ground that the union there had waived its bargaining rights over work relocations We respectfully disagree with the court's decision, but in any event we note that the court also relied on evidence that it construed as showing that the union itself had read the contract language as giving the employer the right to act unilaterally with respect to work relocations As we note in our discussion, infra, we see the evidence here as indicat- ing that the Respondent believed changes in the contract language to be necessary before it would be able unilaterally to relocate work from one plant to another Also distinguishable is Consolidated Foods Corp, 183 NLRB 832 (1970), on which the judge relied In that case, in which the Board concluded that the union had waived rights to bargain over a transfer of operations, the management-rights clause permitted the employer to "change, modify, or cease its production" and in doing so, to be the sole judge of the "location of business and personnel " Id at 832-833 More- over, unlike the present case, the employer did not make statements in- dicative of a belief that it did not possess authority under the contract to act unilaterally in the matter 451 market and production requirements dictate." In February and March 1981, the Respondent in- formed the Union that it needed the right to trans- fer work interplant and proposed "no restrictions on work movement (inter-plant)." Significantly, the Respondent sought to include in the management- rights clause the right "to transfer work among company facilities." Surely, the Respondent's ac- tions indicated that it believed that the contract did not allow it to transfer work without bargaining. Given the well-settled law that a waiver of bar- gaining rights must be "clear and unmistakable," the Respondent's own conduct refutes its argument that a waiver existed in this case.8 Finally, the fact that the Union sought severance pay for laid-off employees and did not challenge the transfer of work in a 1979 grievance does not establish the Union's acquiescence in the Respond- ent's present reading of the contract. The judge failed to consider the background, particularly an earlier settlement of a series of grievances over work transfers, giving the Respondent the right to transfer certain work in exchange for an agreement not to transfer work to the Gorham plant if that would cause the layoff of Waltham employees. We cannot conclude that the position taken by the Union in that one arbitration proceeding, without reference to the surrounding circumstances, sup- ports a finding that it forever waived bargaining rights regarding the transfer of work, at issue here.9 As indicated above, the Respondent, by its own subsequent conduct, indicated that it did not believe it had the right freely to transfer work without bargaining. If the contract and the Union's interpretation of it clearly reserved this right to the Respondent, the Respondent would not have needed to make the proposals it did in 1980 and 1981. Accordingly, we conclude that there is nothing in the management-rights clause and/or the sever- ance pay clause that affirmatively authorized the Respondent to transfer bargaining work outside the unit, nor is there any evidence in the parties' bar- gaining history that would compel such an inter- pretation. 3. Having found that the work relocation deci- sion was a mandatory subject of bargaining and that the Union did not waive its statutory bargain- 8 The judge and our dissenting colleague also ignored evidence that when the severance pay clause was agreed to in 1974, there was a strike in progress Thus, although it may be argued that the clause was agreed to in exchange for a waiver of bargaining rights, it could be argued at least as persuasively that what the Respondent gained from agreeing to the severance pay clause was the employees' return to work 8 This is a fortiori true if the Respondent had no obligation to bargain about the transfers that were the subject of grievances See Westinghouse Electric Corp, 150 NLRB 1574 (1965) 452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing rights, we finally must decide whether, as the General Counsel alleges, the Respondent failed to satisfy its bargaining obligation . As indicated in the fact statement, the parties did in fact bargain over the Respondent's proposal to close the Waltham plant and relocate the work at other plants. For the reasons set forth below, however, we find that the Respondent violated Section 8(a)(5) by implement- ing its decision before reaching a lawful impasse with the Union. As recited in the statement of facts, not long after the 1980-1983 contract went into effect, the Respondent publicly expressed doubts about the continuing viability of the Waltham plant . Meetings between representatives of the Respondent and the Union were held on September 10, November 25, and December 18, 1980. In the course of those meetings, supplemented by written communica- tions, the Respondent described what it regarded as changes in the contract that were essential to the resolution of the economic problems of the Wal- tham plant; the Union counterproposed; and the Respondent rejected the counterproposal. A re- quest by the Union made after the December meet- ing for profit-and-loss statements from the Wal- tham plant and the corporation was rejected. No progress was made in January, and on January 30, 1981, the Respondent announced that it was trans- ferring the production of a particular product line to another plant. It also announced it was under- taking a study to determine the economic viability of the Waltham plant generally. The Union filed grievances over the product transfer, alleging it to be a violation of the contract, and bargaining con- tinued on the general subject of cost savings at Waltham, with the Union making another proposal at a meeting on February 27. This was rejected by the Respondent's representative, who made a pres- entation on Waltham labor costs based on a docu- ment that contained bottom line figures in various broad categories. At the end of the meeting the Respondent's representatives said that management was prepared to recommend the closing of Wal- tham at the March 4 meeting of the board of direc- tors. There were two subsequent postponements of the presentation of the closing proposal to the board of directors to permit further union re- sponses on the Respondent's demands for contrac- tual changes. In the interim, the Union indicated unwillingness to agree to all the concessions the Respondent was demanding , but the Union contin- ued to press its request for financial information that could explain the necessity for the Respond- ent's demands . In a telegram sent to Vice President Tyminski on March 19, a union representative stated that, "as painful as this may be for our mem- bers," they would give "good faith consideration" to the Respondent's demands for concessions if "sufficient documentation is made available by the Company to prove economic necessity." The Union had requested , inter alia, income statements for the Waltham plant and any written documenta- tion that was being presented to the board of direc- tors as a basis for the recommended plant closing decision. The Respondent furnished the Union some operating cost data, but stated it had no income statements of the kind requested, and it re- fused to supply documentation furnished the board of directors, arguing that those were confidential communications. In particular, it refused the Union's request, made on April 1, for the manage- ment study of Waltham that had been represented as being a basis for determining the viability of the Waltham plant. The Respondent advised the Union that this was not "public information," and that the Union should be content with certain charts that the Union was asked to take on faith represented the essence of the information provided to the board of directors so they could decide whether to close Waltham and transfer the work. On April 13, the Union presented further propos- als for concessions and conditions to be maintained while bargaining over further concessions. Among the Union's conditions was agreement by the Re- spondent that a union financial expert could exam- ine the Respondent's operating statements to verify the accuracy of the Respondent's descriptions of its financial situation . In a meeting held on April 14, and in a letter dated that day, the Respondent re- jected the Union's proposals as a totally insufficient response to the Respondent's economic problems. In a letter of April 15, the Union stated that it was unwilling at that time to recommend all the Re- spondent's demands to the membership , but that it remained open to discussing terms for an amended contract. The Union had still not received the fi- nancial information it was requesting, and the Re- spondent had rejected the request for access to its operating statements by a union financial expert. On April 16, the Respondent notified the Union that the board of directors had approved manage- ment's recommendation to close the plant. In a written announcement to the employees the next day, the Respondent lamented the necessity of clos- ing the plant. In giving the "background " against which the decision was made, it described its con- tractual change proposals made to the Union as those that "would attain the necessary competitive cost level," and it castigated the Union for its inad- equate counterproposals. REECE CORP On the basis of the foregoing facts, we conclude that the Respondent did not reach a bargaining im- passe before implementing the work relocation, and therefore it violated Section 8(a)(5) and (1) of the Act. The parties were precluded from reaching a lawful impasse at that point by the Respondent's refusal adequately to respond to the Union's re- quests for financial information that would make it possible for the Union to evaluate the necessity for the Respondent's demands for large concessions and, thereby, to determine whether it could recom- mend the demands to the membership with any hope of acceptance. When requested financial information is relevant to the subject under negotiation, an employer vio- lates Section 8(a)(5) of the Act by refusing to supply it. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152 (1956). -Here, as shown above, the Respondent presented its concessionary demands as essential to the continuation of Waltham as a viable component of its overall operations. The Union sought infor- mation beyond conclusionary charts and statements that would substantiate the Respondent's position. "Good-faith bargaining necessarily requires that claims made by, either bargainer should be honest claims. . . •. If . . . an argument is important ,enough to present in the give and take of bargain- ing, it is important enough to require some sort of proof of its accuracy." Id. at 152-153. See also Teleprompter Corp. v. NLRB, 570 F.2d 4, 8-11 (1st Cir. 1977); Clemson Bros., 290 NLRB 944 (1988). By refusing the Union's request, the Respondent violated its obligation to bargain in good faith. Be- cause prior good-faith bargaining is a prerequisite to a lawful impasse, the Respondent's subsequent unilateral implementation of its decision also violat- ed Section 8(a)(5). Marine & Shipbuilding Workers v. NLRB, 320 F.2d 615, 621 (3d Cir. 1965); Taft Broadcasting Co., 163 NLRB 475, 478 (1967), peti- tion for review denied sub nom. Television Artists AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968). CONCLUSIONS OF LAW 1. By refusing to bargain collectively and in good faith with the Union as the exclusive repre- sentative of its employees in the appropriate unit concerning the decision to close the Waltham plant and to relocate work permanently to other plants, the Company has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 2. By refusing to furnish the Union with informa- tion necessary for and relevant to its function as bargaining representative, the Company has en- gaged in unfair labor practices affecting commerce 453 within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist and take certain affirm- ative action designed to effectuate the policies of the Act. The usual remedy for failing to bargain about a decision to close a facility and transfer work else- where is to order the respondent to. restore the status quo ante, bargain about the decision, and re- instate and make whole the employees who lost jobs as a result of the unlawful conduct. See, e.g., Park-Ohio Industries, 257 NLRB 413 (1981), enfd. 702 F.2d 624 (6th Cir. 1983). If, however, such an order would be unduly burdensome, restoration of the status quo ante will not be required. See Fibre- board Corp. v. NLRB, 379 U.S. 203, 215-216 (1964). We believe the record shows that an order re- quiring reopening the Waltham plant would be unduly burdensome. The Respondent paid to bar- gaining unit employees over $1 million in sever- ance pay and the total costs related to closing were over $2. 3 million. More than half the production machinery used in the Waltham plant has been transferred to other company facilities. Finally, the Respondent has sold the Waltham office, plant, and land. We believe that these circumstances warrant a finding that requiring the Respondent to reopen the Waltham facility would require a major capital expenditure and would "impose an undue or unfair burden" on the Respondent. Fibreboard, supra, 379 U.S. at 216. We shall, however, order the following reinstate- ment and make-whole remedy, which we believe will effectively remedy the Respondent's violation of the Act. We shall order the Respondent to offer Waltham bargaining unit employees reinstatement to their former positions at the facilities to which the Respondent unlawfully transferred unit work, dismissing, if necessary, any persons hired after the closing of the Waltham plant. In addition, we shall - order the Respondent to offer to pay. employees travel and moving expenses. See Royal Norton Mfg. Co., 189 NLRB 489 (1971). If there is insufficient work for all employees to be offered reinstatement, the Respondent shall place the names of those for whom work is not available on a preferential hiring list, in the order of their seniority, and shall offer them jobs in the future before hiring other persons. Employees offered reinstatement shall be allowed a reasonable period of time for accepting such offers. 454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Further, we shall order the Respondent to make whole the Waltham employees by paying them what they would have normally earned from the date of their termination to the date of the offer of reinstatement or, for the employees who decide not to relocate, until the date they secure substantially equivalent employment with other employers. See Royal Norton Mfg. Co., supra.1 ° Backpay shall be based on the earnings that employees normally would have received during the applicable period less any net interim earnings, and shall be comput- ed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest computed in the manner set forth in New Horizons for the Retard- ed.11 Finally, under the circumstances of this case, we believe it is unnecessary to require the Respondent to furnish the requested information it unlawfully refused to provide the Union. The information was necessary in order for the Union to be able to bar- gain intelligently about the Respondent's decision to close the Waltham operation and transfer the unit work. In view of the fact that we do not order the Respondent to restore the status quo ante and bargain about its decision, we believe it is unneces- sary to provide an affirmative order for the refusal to furnish information violation. ORDER The National Labor Relations Board orders that the Respondent, The Reece Corporation, Waltham, Massachusetts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively and in good faith with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW and its Local 1596 as the exclusive representative of its employees in the appropriate unit set forth below, concerning the decision to close the Waltham, Massachusetts plant and to re- locate work permanently to other plants. The ap- propriate unit is: All production and maintenance employees of the Respondent employed at its Waltham plant, exclusive of office and clerical employ- ees, outside salesmen and servicemen, develop- mental and factory engineering department employees, production clerks, time study em- ployees and cost estimators, watchmen, and all supervisors as defined in Section 2(11) of the Act. 10 In determining the backpay amount due, the Respondent may offset the severance payment each employee received. 1i283 NLRB 1173 (1987). (b) Refusing to furnish the Union with informa- tion necessary for and relevant to its function as bargaining representative. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer the Waltham employees immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, at the other plants where the bargaining unit work has been relocated, with necessary trav- eling and moving expenses for them and their fami- lies and their household effects, without prejudice to their seniority or any other rights or privileges previously enjoyed, dismissing, if necessary, any persons hired after the closing of the Waltham plant. If there are not a sufficient number of jobs for all the employees to be offered reinstatement, the Respondent shall place the names of those for whom jobs are not available on a preferential list in the order of their seniority, and thereafter offer them reinstatement before other persons are hired. Employees offered reinstatement shall be allowed a reasonable period of time for accepting such offers. (b) Make the Waltham employees whole for any loss of earnings and other benefits suffered in the manner set forth in the remedy section of this deci- sion. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Mail copies of the attached notice marked "Appendix" 112 to all the Respondent's employees who were employed at the Waltham plant in the appropriate unit who were terminated or laid off as a result of the plant closure and transfer of work. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. MEMBER JOHANSEN, dissenting. Contrary to my colleagues, I find that the Re- spondent did not violate the Act by closing its Waltham facility and transferring work to its other 12 If this Otder is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." REECE CORP. 455 plants. I find it unnecessary to reach the issue of whether the Respondent's decision to close the Waltham plant and transfer work elsewhere was a mandatory subject of bargaining under Otis Eleva- tor Co.' because I fmd that the Union waived the right to bargain over the decision by agreeing to inclusion of the management-rights and severance pay clauses in its collective-bargaining agreement with the Respondent. This finding is buttressed by looking to extrinsic evidence including the bargain- ing history of the parties. In order to determine contractual intent, we are not restricted to the con- tractual provisions themselves, but may properly evaluate them against the "elucidating background of their bargaining history."2 The Respondent and the Union have a bargain- ing history dating back to the 1940s. The manage- ment-rights clause has been included in all the par- ties' collective-bargaining agreements in basically the same form since the beginning of the parties' bargaining relationship. The severance pay clause, however, was not introduced into the agreements until the 1974- 1977 agreement. In 1974 the Re- spondent's Gorham, Maine facility was built. That same year the Union demanded in negotiations that its contract with the Respondent contain a sever- ance pay provision and, at the Union's insistence, the Respondent agreed. Although the Union's su- bregional director, Frank Ceccaroni, testified that inclusion of the severance pay provision did not result from the Union's concern about the Gorham, Maine plant, this testimony was not credited by the judge, and is contrary to the Union's argument to an arbitrator in 1979 . In 1979 certain work had been transferred from Waltham to Gorham that had resulted in the permanent layoff of some em- ployees. The Union took the issue to an arbitrator and demanded severance pay. The arbitrator deter- mined that some of the layoffs were caused by a general recession in the industry, but that others re- sulted from the transfer of work and thus those em- ployees should receive severance pay. The Union did not contend in the arbitration proceeding that the Respondent did not have the right to transfer the work from Waltham to Gorham, rather the Union sought severance pay for the laid-off em- ployees.3 In its brief to the arbitrator in 1979, counsel for the Union stated: 1269 NLRB 891 (1984). P New York Mirror, 151 NLRB 834 (1965); C & C Plywood Corp, 148 NLRB 414 ( 1963). a The Union's argument that the severance allowance clause was only to apply to the Respondent's going out of business totally without the transfer of its operations is not borne out by the prior bargaining history and contract administration of the clause . Work had been previously relo- cated from the Waltham facility with no closure of the facility and the Union sought severance pay. The Union's position on the severance The parties stipulated that the severance al- lowance provision of the current contract was first negotiated by the parties into the 1974- 1977 agreement. Both John Reece and Leo Fitzpatrick [Union representative] agreed that the Gorham plant was discussed in the context of negotiating the severance allowance provi- sion. Both agreed that the union negotiators expressed great concern about the impact of the Gorham facility upon the bargaining unit. Thus I fmd that the Union was concerned with the Gorham, Maine plant and the possible transfer of work there. As a result, it demanded and re- ceived the inclusion of the severance pay provision in the agreement. It is clear that the statutory right of a union to bargain about changes in terms and conditions of employment may be waived by the union. I find there was a "conscious and unequivo- cal yielding on a subject within the contemplation of the parties."4 The parties admittedly discussed the Gorham plant in relation to severance pay, they considered the issue and came to a resolution. I fmd that the Respondent was given the right by the Union to close the plant and transfer the work. Reading the management-rights clause in conjunc- tion with the severance pay provision, the Re- spondent is "vested exclusively" with the right "to abandon or discontinue any production , methods or facilities" and in its "sole judgment" can "close permanently the plant or discontinue permanently a department of the plant or portion thereof and ter- minate the employment of individuals ." The Re- spondent thus was clearly granted the right to take the actions it took as it acted on rights specifically enumerated to it in its collective-bargaining agree- ment.5 As the judge noted, it is not likely the Re- spondent would agree to inclusion of the severance pay provision, which potentially could (and in fact did) cost it substantial sums of money, without re- ceiving something in return : the right to close down the Waltham plant and transfer the work. I find that the language of the severance pay clause and management-rights clauses serve as a waiver that is "clear and unmistakable."e pay/closure/transfer issue has been inconsistent and it cannot have it both ways. 4 Pacemaker Yacht Co., 253 NLRB 828 (1980). a Litton Systems, 283 NLRB 973 (1987). e Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983). Unlike the majority, I do not view the Respondent's willingness to bar- gain about contract concessions that could allow it to maintain produc- tion and employment at the Waltham plant on an economically sound basis as an indication that Respondent realized it was precluded from closing the plant without bargaining . Rather, it was giving the Union an opportunity to furnish an alternative to what it deemed a necessary move. The same would be true if it offered to bargain about a decision to subcontract work, another right indisputably clearly reserved to the Re- spondent in the contract. 456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As the Union clearly and unmistakably waived its right to bargain over the decision to close the Waltham plant and transfer the work, it follows that the Respondent had no obligation to provide information to the Union. Thus I find no 8(a)(5) violation in the alleged failure to furnish that infor- mation. Additionally, as any 8(a)(3) violation would be derivative from a Section 8(a)(5) viola- tion, I find no violation of Section 8(a)(3). I would dismiss the complaint in its entirety. of jobs for all the employees to be offered rein- statement, we shall place the names of those for whom jobs are not available on a preferential list in the order of their seniority, and thereafter offer them reinstatement before other persons are hired. Employees offered reinstatement shall be allowed a reasonable period of time for accepting such offers. WE WILL make the Waltham employees whole, with interest, for any loss of earnings and other benefits suffered. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively in good faith with International Union , United Auto- mobile, Aerospace and Agricultural Implement Workers of America, UAW and its Local 1596 as the exclusive representative of our employees in the appropriate unit set forth below, concerning the decision to close the Waltham, Massachusetts plant and to relocate work permanently to other plants. The appropriate unit is: All production and maintenance employees employed at our Waltham plant, exclusive of office and clerical employees, outside salesmen and servicemen, developmental and factory en- gineering department employees, production clerks, time study employees and cost estima- tors, watchmen, and all supervisors as defined in Section 2(11) of the Act. WE WILL NOT refuse to furnish the Union with information necessary for and relevant to its func- tion as bargaining representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer the Waltham employees immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, at the other plants where the bar- gaining unit work has been relocated, with neces- sary traveling and moving expenses for them and their families and their household effects, without prejudice to their seniority or any other rights or privileges previously enjoyed , dismissing, if neces- sary, any persons hired after the closing of the Waltham plant. If there are not a sufficient number THE REECE CORPORATION John S. May, Esq., for the General Counsel. Allan A. Tepper, Esq. (Snyder, Tepper & Comen), of Boston, Massachusetts, for the Respondent. Donald J. Siegel, Esq. (Segal, Roitman & Coleman), of Boston, Massachusetts, for the Union. DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge. On April 16, 1981, the Respondent's "Board of Directors approved management's recommendation to close the Waltham plant [whose production employees were represented by the Charging Party] and consolidate manufacturing ac- tivities at other more competitive plants." By this act General Counsel alleges that the Respondent violated Section 8(a)(5), Section 8(d), and Section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. It 'is also alleged that the Respondent violated Section 8(a)(5) by refusing to furnish the Charging Party relevant information it requested concerning the proposed clos- ing. The Respondent generally denied that it has commit- ted any unfair labor practices and affirmatively contends that it had a right under the existing collective-bargain- ing agreement to close its facility and terminate the em- ployees. This matter was tried before me at Boston, Massachu- setts, on February 22, 23, and 24, 1982, following which all counsel submitted exhaustive briefs. Upon the record as a whole, including my observation of the witnesses and arguments of counsel , I make the following FINDINGS OF FACT AND CONCLUSION OF LAW 1. JURISDICTION The Respondent is a Massachusetts corporation en- gaged in the manufacture, sale, and distribution of indus- trial sewing machines and related products. In the course and conduct of its business, the Respondent annually ships finished goods valued in excess of $50,000 directly to points outside the Commonwealth of Massachusetts. Respondent admits, and I find , that it is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. REECE CORP. 457 II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW and its Local 1596 is admitted to be , and I find is, a labor organization within the meaning of Section 2 (5) of the Act.1 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The parties stipulated to the material facts involved in this dispute. The only area of disagreement involves what was said during the 1974 negotiations when the parties discussed, and ultimately agreed to, the severance pay clause in the collective-bargaining agreement. And even with regard to this (which will be discussed in more detail, infra) the parties generally concur about the context in which the clause was negotiated. Since 1949, when it moved from Boston, the Respond- ent operated its principal manufacturing facility in Wal- tham, Massachusetts. It also has plants in Leiden, Hol- land (which began operation in 1959 ), Gorham, Maine (which began operation in 1974), Stanstonsburg, North Carolina (which began operation in July 1980), and a sat- ellite plant of Waltham in Wilmington, Massachusetts. The Union has been the collective-bargaining repre- sentative of the Respondent's Waltham production and maintenance employees since prior to the Company's move to that facility. The Respondent and the Union have had a series of collective -bargaining agreements, the most recent of which is effective from March 1, 1980, to February 28, 1983. When negotiations for this contract began in January 1980, officials of the Respondent stated relief was needed from the economic and operating effects of prior con- tracts. According to the Company, direct labor and other operating costs were so high, given its then posi- tion in the industry, as to cast doubt on the continued vi- ability of Waltham. However, the Respondent was un- successful in obtaining the relief it sought during these negotiations. In the First Quarter Report and Annual Meeting Review 1980, management officials stated that having been unsuccessful in obtaining relief from the Union "puts the future of the Waltham plant at risk .... Similar comments had been made in the annual report. Having reviewed these reports, the Union , through its attorney Donald Siegel, wrote the Company to arrange a meeting "to discuss matters of mutual concern." There followed an exchange of correspondence and numerous meetings. In sum, the Company took the position that as a result of the adverse market conditions, it found itself with an excess of manufacturing capacity. Because the Waltham facility waS the most costly to operate, man- agement intended to recommend to the board of direc- tors that Waltham be closed and its remaining produc- tion be transferred to other facilities. ' At all stages of this proceeding the International and the Local have been treated as a single entity. The Union expressed its concern about the possibility of Waltham being closed, and indicated that it was pre- pared to recommend to the bargaining unit members that they make substantial concessions and modify the collec- tive-bargaining agreement . The one concession actually advanced by the Union was considered insufficient by the Company; and the Company's "bottom line" propos- al was deemed too extreme by the Union. The parties were thus unable to reach an agreement which would permit the Company, in its judgment, to keep the Wal- tham facility open . And after two postponements for fur- ther discussions on April 16, 1981, management recom- mended to the board of directors that the Waltham facil- ity be closed and the remaining work be transferred. The board of directors adopted this recommendation and, commencing on June 3, the Respondent began to shut down its Waltham facility and transfer the work. This was completed on December 18, 1981 . On December 29 the Respondent completed the sale of the Waltham office, plant, and land, taking back a long-term lease on the office and a short-term on the plant for purposes of selling nontransferred equipment. About 57 percent of the production machinery was transferred to. other plants. During the course of the discussions between the Union and the Company, the Union requested certain in- formation be furnished it so that an economist on the International Union staff could review it, presumably for the purposes of analyzing whether in fact the Respond- ent's contention that the Waltham plant was too costly was in fact true. While the Company did make a presen- tation to the Union concerning the production costs at Waltham, vis-a-vis its other facilities, in large part the Respondent refused the Union's request for the informa- tion. Following the Company's determination to close the Waltham plant, the parties did meet to discuss the effects of this decision, including particularly the Respondent's payment of severance allowance of the active employees and approximately 70 other employees who were then on layoff. The total severance pay was $1,046,365.76. B. Analysis and Concluding Findings In brief, this case involves a management decision to change operations the effect of which was the termina- tion of bargaining unit jobs. In a variety of factual set- tings, the Board and court shave considered the statutory obligations of employers who wish to make such changes. Many of these concern the elimination of bar- gaining unit jobs in an effort to defeat the employees' right to bargain collectively. Those cases are not materi- al to this analysis because there is no contention that the Respondent's decision was in any way motivated by an- tiunion animus or was part Sof a plan to rid itself of the collective-bargaining representative of its employees. Nor does the General Counsel or the Union contend that the Respondent was motivated other than by legitimate economic considerations-though these specifically in- volved the direct and indirect costs of the collective-bar- gaining agreement. 458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Those cases where an employer determines to elimi- nate bargaining unit jobs for purely economic reasons fall into two broad categories-where there is a collec- tive-bargaining agreement covering the bargaining unit employees and where there is none. In the former, the question generally concerns whether the company had the right under the collective-bargaining agreement to do what it did or whether its act amounted to a midterm modification, or repudiation, of the contract proscribed by Section 8(d). Where there is no collective -bargaining agreement, the issue generally concerns whether the company's decision is one over which it had a mandato- ry duty to bargain as required by Section 8(d). In both types of cases there is the additional issue of whether and to what extent an employer has a duty to bargain over the effects of its decision , an issue not involved here be- cause the parties stipulated that in fact the Respondent did bargain with the Union about the effects. The Respondent principally relies on First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), in which it was held that an employer's decision to shut down part of its business for purely economic reasons is not a mandatory subject of bargaining. The Supreme Court, however, specifically limited its holding to the facts before it. Specifically, there was no collective-bar- gaining agreement covering the employees whose jobs were terminated, nor did the company's decision to close the particular operation involve relocation of any work which had been performed by bargaining unit employ- ees. Since here there was a collective-bargaining agree- ment and the decision meant someone else would do bar- gaining unit work makes First National Maintenance Corp. not controlling. Nevertheless, I conclude that the Respondent's deci- sion to close its Waltham facility and transfer production to other facilities was not a mandatory subject of bar- gaining. In General Motors Corp., 191 NLRB 951 (1971), the Board held that an employer's decision to sell an em- ploying enterprise is not a mandatory subject of bargain- ing where the decision involves a "significant investment or withdrawal of capital [and] will affect the scope and ultimate direction of an enterprise, are matters essentially financial and managerial in nature." The Board followed General Motors Corp. in National Car Rental System, 252 NLRB 159 (1980), a case factually similar to the instant situation. In National Car Rental, the employer had determined to open a satellite facility and reduce , though only mar- ginally, the number of vehicles to be serviced out of its principal facility. The company then determined to go out of business at its initial location, selling many of the accounts to another employer but transferring some of the business to the satellite facility . Though finding that the impact of both decisions (creating satellite facility and subsequently closing the principal facility and trans- ferring work to the satellite) meant the elimination of bargaining unit jobs, the Board nevertheless concluded that neither of these decisions was a mandatory subject of bargaining. The Board did conclude that the company was required to bargain over the effects of its decision. Here the Respondent built the Gorham, Maine plant in 1974 and in 1979 the one in North Carolina. Then in 1981 it decided to close the Waltham plant, which meant a capital outlay of about $2.3 million, particularly includ- ing the payment to unit employees of their more than $1 million in severance allowances . Though there was no sale of the enterprise (although the Respondent did sell the building, land, and some machinery and now leases back the office space) that fact does not seem significant. The point is that the Respondent undertook a manage- ment decision to expand its capacity (as in National Car Rental) but then when the economy took a downturn and the Respondent's product became less competitive due to unit costs, it decided to close its most costly facili- ty and consolidate (as in National Car Rental). This deci- sion, as in General Motors and National Car Rental, in- volved a capital investment and certainly affected the scope and direction of the Respondent's business which, under those cases, clearly was a matter of "entrepreneur- ial control." It was not, therefore, a decision about which the Respondent was required to bargain. The test seems to be whether the transfer of unit work involves "a significant investment or withdrawal of cap- ital affecting the scope and ultimate direction of the en- terprise." American Needle & Novelty Co., 206 NLRB 534 (1973). If it does, then the midterm decision does not re- quire the Union's consent, much less bargaining . General Motors Corp., supra. If not, then it is an unfair labor prac- tice to implement the decision without the Union's con- sent. Brown Co., 243 NLRB 769 (1979). The line may be vague, but there is a difference be- tween economic justification for an ace (to avoid losing money or even a desire to make more) and a significant investment or withdrawal of capital. Where the company is about simply trying to be more economically efficient, then the transfer of work is a condition of employment which cannot be modified during the term of a contract absent the union's consent. But where the transfer of work is part of the company's broader responsibility to allocate its capital then it is not annitem the union can veto by withholding its consent, or even an item which requires bargaining before implementation. An attempt to operate more cost-effectively may be of significance to the company, but does not rise to the level of "affecting scope and ultimate direction of the en- terprise." Thus in those cases in which the midterm transfer of work without consent was found unlawful, there was no apparent investment or withdrawal of cap- ital. There was no significant change in the scope of the business. In Los Angeles Marine Hardware Ca, 235 NLRB 720 (1978), enfd. 692 F.2d 1302 (9th Cir. 1979), for instance, there was no apparent expenditure of capital and the only change in the business was the location of the new facility some 50 miles from the old one. Similar- ly, in Brown Ca, supra, the transfer of equipment (result- ing in loss of bargaining unit jobs) was between compo- nents of a single employer. And in American Needle & Novelty Ca , supra, there was simply a transfer of work between plants of an integrated enterprise. There was no expenditure of capital or sale of assets. The same was the case in Park-Ohio Industries, 257 NLRB 413 (1981). Here the Company's decision to close the Waltham plant and transfer the work involved a capital outlay of REECE CORP. about $2.25 million and the sale of the Waltham plant. Whether such an expenditure is "significant" would seem to depend on the circumstances of the company. Here the cost of closing Waltham was about one-third of the Respondent's 1980 capital expenditures ($6,183,000 from its annual report). I conclude that the Respondent's cap- ital commitment was significant and the decision to shut down one facility and consolidate manufacturing capac- ity was more than a mere relocation of work, as in Los Angeles Marine. Thus I do not believe that the Respondent's decision to close the Waltham plant, whether or not bargaining unit work was then transferred to other already existing facilities, was a midterm modification or repudiation of the collective-bargaining agreement. Beyond that, even if I were to conclude that the Re- spondent could not normally close Waltham and transfer bargaining unit work to other then existing plants with- out the Union's consent, the Union here in fact consent- ed. The Union agreed to the management-rights and sev- erance pay clauses of the collective-bargaining agree- ment. During negotiations in 1974, the Union demanded and the Company agreed to a severance pay provision which was then included in the 1977 and 1980 contracts. The management-rights clause has been in all the collective- bargaining agreements in substantially the current form. (A provision stating the "Company normally will not subcontract" was added in 1969.) The Respondent's wit- nesses testified that union representatives wanted a sever- ance pay provision because they were concerned about the Company's decision to build a manufacturing facility in Gotham, Maine. The Union's witnesses testified to the effect that such was not a particular interest. Rather, for national policy reasons, the Union was beginning to demand severance pay provisions in all of their collec- tive-bargaining agreements. I conclude that the contract, at least by clear implica- tion, gave the Respondent a right to close the Waltham facility and transfer the work. In article III, "Manage- ment," the Union recognizes the broad right of the Re- spondent to manage the enterprise including "the right to abandon or discontinue any production, methods or fa- cilities . . . ." Management also has the right to subcon- tract work, though it will not do so "under normal con- ditions" (a language change in 1974) where such would cause layoffs. In material part the "Severance Allowance" clause reads: When in the sole judgment of the Company, it decides to close permanently the plant or discontin- ue permanently a department of the plant or portion thereof and terminate the employment of individ- uals, an employee whose employment is terminated as a result thereof . . . shall be entitled to a sever- ance allowance ... . The General Counsel and the Union argue that these provisions do not vest in the Respondent the right to close the Waltham plant and transfer bargaining unit work because the Union has a right under the statute to 459 prevent such by withholding its consent. Thus to find the Respondent had the right under the contract to do what it did would be tantamount to fording that the Union waived a statutory right, a conclusion the Board will not make absent "clear and unmistakeable" lan- guage. Allied Mills, 218 NLRB 281 (1975); Universal Se- curity Instrument, 250 NLRB 661 (1980). Or as the Board said in Hearst Corp., 151 NLRB 834 (1965), it "will not find that contract terms of themselves confer-on the em- ployer a management right to take unilateral action on a mandatory subject of bargaining unless the contract ex- pressly or by necessary implication confers such a right." Though the precise factual situation of this case is not set forth in the collective-bargaining agreement, by "clear implication" the parties must have had in mind the Respondent's future decision to close all or part of the plant, with or without transferring some of the work to another facility. Management specifically has "the right to abandon or discontinue any production , methods or facilities or to introduce new or improved materials, pro- duction methods or facilities." And language in the sev- erance allowance clause ("when in the sole judgment of the Company it decides to close permanently the plant") can mean only that the Respondent has the right to do so. It is indeed inconceivable that the Respondent would have agreed to a contract provision which would amount to a substantial cost item, for which it received no production in return, without getting some benefit in return. That benefit must have been the right to do in fact what it did. In Park-Ohio Industries, supra, cited by the General Counsel and Union, the Board held that the midterm transfer of bargaining unit work from one facility to an- other was unlawful absent the union's consent. The Board concluded that a broad management-rights clause was not a waiver of the union's statutory right. This broad language was distinguished from the specific wording of the contract in Consolidated Foods Corp., 183 NLR3 832 (1970). There the company had "the exclusive right" to "change, modify or cease its operation , process- es, or production, in its discretion." The Board thus held that the company could lawfully transfer bargaining unit work to another facility. The contract language here is much closer to Consolidated Foods than Tocco. The Union and the General Counsel argue that not- withstanding that the Respondent paid bargaining unit employees in excess of $1 million in severance pay, its right to close the plant is limited to going out of business totally. In short, the General Counsel and the Union argue that the severance pay clause applied only where the plant, or a portion of it, closes and there is no trans- fer of work. Though I believe that the clear wording of both clauses precludes such a limited construction, the credible extrinsic evidence does not support the General Counsel and the Union. They rely principally on the tes- timony of Frank Ceccaroni , the Union's subregional di- rector. In explaining the purpose of the severance pay clause to the Company in 1974, "I said that in the event the plant closed down, they went out of business." And, he testified, "Gorham, Maine was never an issue with the severance pay clause." 460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD However, in contrast to Ceccaroni's testimony is the Union's argument to arbitrator Fallon in 1979 . Certain work had been transferred from Waltham to Gorham which the Union claimed resulted in the permanent lay- offs of employees; hence, they should have received sev- erance pay. Though concluding that some of the layoffs were caused by a general recession in the industry, the arbitrator did conclude that some resulted from the transfer of work and he awarded severance pay accord- ingly. Nowhere in that proceeding did the Union main- tain that the Company did not have the right to transfer work from Waltham to Gorham . On the contrary, the Union's position was that in such an event, laid-off em- ployees were entitled to severance pay. Rather than at- tacking the Company's right to transfer work, the Union sought severance pay for terminated employees . (During the 1974 contract the Union did grieve the transfer of work as such, which was resolved by settlement.) Further, in his brief to the arbitrator counsel for the Union stated: The parties stipulated that the severance allowance provision of the current contract was first negotiat- ed by the parties into the 1974-1977 agreement. Both John Reece and Leo Fitzpatrick agreed that the Gorham plant was discussed in the context of negotiating the severance allowance provision. Both agreed that the union negotiators expressed great concern about the impact of the Gorham facility upon the bargaining unit ... . I believe the Union recognized the Repondent's right to transfer work, and brought the severance pay clause as a hedge against losses to the bargaining unit which would result. Such is consistent with the Union's position in 1979. Such is further consistent with the fact that a severance pay clause was bargained for only after Gorham was built (earlier such a clause was "orally" proposed but dropped when the Respondent objected). Thus I discredit Ceccaroni's assertion that in negotiations the parties meant to limit severance pay only to closings where there was no transfer of work. I conclude that the contract specifically gave the Company the right to make the unilateral decision to close the Waltham plant (or part of it). The fact that this decision was accompanied by transfer of some of the bargaining unit work did not alter the Company's right to make that decision. In sum, I conclude that the Respondent did not have a duty to bargain about its decision to close its plant in Waltham, Massachusetts, for purely economic reasons with or without the concomitant transfer of work to an- other facility. Second, the decision to close the facility, with or without the concomitant transfer of bargaining unit work, was not a midterm modification. or repudi- ation, of the collective-bargaining agreement. The collec- tive-bargaining agreement remains in effect. Indeed the Respondent has complied with its terms including the payment of a severance allowance to employees. Third- ly, I conclude that even if this matter were a mandatory subject of bargaining or a matter which would require the consent of the Union whether there was bargaining or not. In fact the Respondent had the specific contract right to close the facility , with or without the concomi- tant transfer of unit work. Notwithstanding the Respondent had no obligation to bargain with the Union concerning the closure of the plant, it nevertheless did at least enter into discussions with the Union about this and did in fact on two occa- sions postpone the ultimate decision of the board of di- rectors to close the facility . During the course of these discussions, the Union requested that the Company fur- nish certain financial information, arguing that such was necessary for its study in order to determine whether or not in fact the Company's assertion that it had to close the plant for economic reasons was valid . The Respond- ent's refusal to supply all the requested information is al- leged violative of its bargaining duty . In support of this allegation the General Counsel and Union cite Goodyear Aerospace Corp., 204 NLRB 831 (1973), enfd. denied 497 F.2d 747 (6th Cir. 1974). There is no doubt a union is entitled to such informa- tion as is necessary to its performance as a collective-bar- gaining representative. And the test for entitlement is lib- eral-a "discovery-type standard" of relevance. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). In evaluating whether the information requested is po- tentially relevant, one goes back to NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). There the Supreme Court held that Section 8(a)(5) requires a Company to furnish sub- stantiating data, on request, when claiming in negotia- tions an inability to grant a wage increase . Though the Respondent contends it did not claim an inability to keep Waltham open, its claim of noncompetitiveness along with its proposal that benefits would have to be reduced was "the equivalent of the claims of inability to pay the wages demanded in Truitt." NLRB v. Goodyear Aerospace Corp., 497 F.2d 747, 751 (6th Cir. 1974). Nor would the charts prepared by the Respondent adequately substitute for the data requested. Designcraft Jewel Industries, 254 NLRB 791 (1981). But just because a union represents employees does not mean that it is entitled to all the information it re- quests. E.g., Detroit Edison v. NLRB, 440 U.S. 301 (1979). The information requested must be viewed in the context of the Respondent's general duty to bargain with the Union. Here the information could not be relevant to bargain- ing over the Respondent's decision to close, for the Re- spondent had no duty to bargain over that issue. Good- year Aerospace seems to require furnishing information even where the subject does not require bargaining-the company was demanding a midterm modification of the contract to adjust the wages downward. However, there the company also embarked on an unlawful attempt to deal directly with employees. The Board held: "We find the two aspects of this conduct are intertwined and con- stitute a violation of Section 8(a)(5) and (1) of the Act." The absence here of such unlawful conduct makes Good- year Aerospace inapposite. I conclude that the Respondent was not required to furnish the information requested by the Union and did not violate the Act by refusing. REECE CORP. 461 Further the closure was lawful ; and the parties did bargain in good faith concerning the effects, including severance pay and hiring employees at other plants. There is no contention the denied information was relat- ed to effects bargaining. And there is no evidence of union animus. Under such circumstances, even if there was a technical violation, it would not effectuate the pur- poses of the Act to require remedial order, which in this situation would amount to an exercise of futility. Hearst Corp., supra. Finally, having concluded that the Respondent did not violate its obligations under Section 8(a)(5) of the Act in its decision to close the Waltham plant , and absent evi- dence that the decision was based on anything other than economics, I conclude that there's no basis for fording that the Company thereby violated Section 8(a)(3) of the Act by discharging its Waltham employees . While it is no doubt arguable that the plant closing is inherently de- structive of employee rights (absent a contractual right to do so) in this case at a minimum, the Respondent has come forth with sufficient evidence to sustain its burden of proving that in fact it had an economic justification for doing what it did. Cf. NLRB v. Great Dane Trailers, 388 U.S. 26 (1967). [Recommended Order for dismissal omitted from pub- lication.]