Lear Siegler, Inc.

LEAR SIEGLER, INC. Lear Siegler, Inc., No-Sag Products Division and International Union, United Automobile, Aero- space & Agricultural Implement Workers of America (UAW), AFL-CIO. Case 30-CA-9320 June 27, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFr AND DEVANEY On July 10, 1987, Administrative Law Judge Richard H. Beddow Jr. issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and a motion to reopen the record. The General Counsel filed a limited exception, a brief in support of its exception and in answer to the Respondent's brief, an opposition to the Re- spondent's motion to reopen the record, and a motion to strike portions of the Respondent's ex- ceptions and brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions, briefs, and mo- tions and has decided to affirm the judge's rulings,' findings, 2 and conclusions as modified below and to adopt the recommended Order as modified. 1. The judge concluded that the Respondent vio- lated Section 8(a)(3) and (1) of the Act by effec- tively ceasing production operations at its Her- mansville, Michigan plant on June 27, 1986,3 trans- ferring production to its facility at West Chicago, Illinois, subcontracting the Hermansville plant's warehousing functions, and laying off indefinitely all of its full-time production employees at Her- mansville because of their actions in pursuing union representation . For the reasons set forth below, we affirm the judge's findings except concerning sub- contracting.4 The judge found that the General Counsel estab- lished a prima facie showing that the June 27 lay- offs were motivated by the employees' action in ' The Respondent has excepted to the judge 's receiving into evidence the decision of the United States district court in a collateral proceeding under Sec. 10(j) of the Act. Because we do not rely on the district court's decision, we find it unnecessary to rule on the Respondent's ex- ception 8 For the reasons discussed below, we do not adopt the judge's finding, contained in sec . III,C of his decision, that the Respondent and Les Brown Chair Company had not reached an impasse in their negotiations for a lease of a new facility but, as late as June 11 , 1986, expected to reach an agreement We find no support in the record for that finding. Unless otherwise stated , all dates are in 1986. * We do not adopt the judge's conclusion of law that the Respondent violated the Act by subcontracting the warehousing functions of its Her- mansville plant, because the lawfulness of the subcontracting was neither alleged nor fully litigated 857 seeking union representation.5 Thus, on June 13, the Respondent received a letter signed by an orga- nizer from the United Auto Workers (the Union) stating that the Union was attempting to organize the Respondent's employees. On June 18, the Re- spondent's plant manager, John Lang, approached employee Daniel LaFave in the plant and asked him why the employees wanted a union and where he had gotten the union materials that he had been distributing; LaFave responded that he did not have to answer. On June 19, the Respondent's di- rector of manufacturing, Joseph Progar, met with all the full-time employees and asked why they were going for "outside help"; threatened to close the plant immediately ("we will shut the doors to- morrow") if an "agreement" was not reached; per- suaded the employees to sign a letter, which Progar had dictated, stating that they did not wish to seek "outside representation," and threatened to "take some sort of action" if two employees did not sign; tore up two disciplinary warnings to LaFave; promised to implement a piecework system the employees had requested; gave LaFave a 5-cent-per-hour wage increase ; and instructed the employees to remove all UAW insignia and not to wear any UAW materials in the plant in the future. On June 23, the day the Respondent received a letter from the Union stating that it had filed a rep- resentation petition and that it was willing to prove its majority status by means of signed union author- ization cards, Lang asked LaFave if he could get the authorization cards back. When LaFave re- fused, Lang asked him if he was still for the Union and, on receiving an affirmative answer, told LaFave that he might be out of a job by the end of the week. There can be no doubt that, as the judge found, the statements of Lang and Progar, both admitted statutory supervisors, established a prima facie showing that the June 27 layoffs were unlawfully motivated.6 The burden therefore shifts to the Re- spondent to establish that it would have transferred its production operations and laid its Hermansville employees off on June 27 even in the absence of the union organizing campaign .7 We agree with the judge that the Respondent has failed to carry its burden of persuasion. The Respondent's Hermansville facility was es- tablished in 1982 to cut flexible polyurethane foam into shapes for Les Brown Chair Company, one of the Respondent's major customers. The bulk foam 5 The Respondent does not except to this finding. a The judge also found that Lang and Progar's statements violated Sec 8(a)(1) of the Act The Respondent has not excepted to that finding. 7 Wright Line, 251 NLRB 1083, 1089 (1980); NLRB v. Transportation Management Corp., 462 U.S 393 (1983). 295 NLRB No. 83 858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD is produced at the Respondent's pour plant in West Chicago, Illinois, and transported by truck to Her- mansville and other fabrication plants, where it is cut to order for customers. The Respondent's wit- nesses testified that the Hermansville fabrication plant is antiquated and inefficient, and could not always meet Brown Chair's daily production re- quirements of approximately 600 chairs per day. Consequently, the Respondent augumented its Her- mansville production with the output of its West Chicago fabrication plant. Moreover, in the spring of 1986, Brown Chair began constructing a new production facility which enabled it to expand its output to around 1000 chairs a day, beginning in July. The Respondent could not have fulfilled Brown Chair's increased production requirements using only its existing Hermansville plant. Early in 1986, the Respondent and Brown Chair began discussing the construction of a new, ex- panded fabrication plant for the Respondent in Hermansville. The parties reached a tentative agreement under which Brown Chair would con- struct a new facility and lease it to the Respondent for 10 years for a rental of approximately $3965 per month.8 The Respondent, however, was not willing to commit itself unconditionally to a 10- year lease, because the only use for such a facility was to fabricate products for Brown Chair, and if for any reason the Respondent lost a major portion of Brown Chair's business, it did not wish to be bound to a lease on a facility for which it had no other use. Thus, about June 6, Respondent sent Brown Chair a proposed lease agreement contain- ing a provision under which the Respondent could terminate the lease without penalty if Brown Chair either went out of the upholstered furniture busi- ness or used another foam supplier . Brown Chair rejected the Respondent's proposed terms out of hand, and instead offered only to promise that it would continue to purchase foam products from the Respondent as long as the Respondent re- mained, in Brown Chair's estimation, competitive in price and quality. Brown Chair transmitted that proposal to Progar by letter dated June 11 . Progar received Brown Chair's proposal on-June 17, the same day he first saw the Union's letter to Lang in- forming the Respondent of its organizing cam- paign. Progar testified that he met on June 17 with Gary Nabor, the Respondent's vice president for fi- nance, and that the two men determined that the lease negotiations should be called off because it would be impossible to obtain corporate approval of a lease without the "escape clause" that had 8 By letter dated April 23, Brown Chair stated its intention to com- mence construction of the new facility in September or October been definitively rejected by Brown Chair. On June 18 Progar met with Allen Hutton and Robert Graves, Respondent's president and vice president for marketing and sales, and informed them of the state of lease negotiations . The three also discussed the union organizing campaign at Hermansville. At that meeting, according to Hutton and Graves, a decision was made to relocate the fabrication work then being performed at Hermansville to West Chi- cago, and to convert the Hermansville facility to a customer service or distribution center. The Respondent's witnesses adduced a variety of explanations for the decision to relocate the Her- mansville production work to West Chicago. Hutton first testified that one reason was that there was not sufficient work in West Chicago.9 Later, however, Hutton contradicted himself and stated that the work was moved not because the West Chicago employees did not have enough work, but solely in order to make optimal use of the Re- spondent's assets.10 Progar, in turn, contradicted Hutton by stating that he thought the problems that had arisen over the lease played an important part in the decision to cease production at Her- mansville. Graves also testified that he thought the relocation decision was caused in part by the prob- lems over the lease . Hutton testified that the union organizing campaign had no impact on the decision to relocate. On June 19, as noted, Progar met with the Her- mansville employees and threatened to close the plant unless they could come to an "agreement" over the issue of union representation. He did not mention that any decision had been made to trans- fer production operations to West Chicago. After that meeting, however, Progar met with Bob Brown, president of Brown Chair, and informed him that the relocation decision had been made. On June 23, the day Lang received the Union's letter stating that a representation petition had been filed, Progar telephoned Jim Ivanelli , president of Meyers Transportation, the trucking company that transported foam from the Respondent's pour plant in West Chicago to Hermansville. Progar informed Ivanelli that the Respondent had changed the way it had done business, and reached an agreement with Ivanelli under which Meyers' employees would unload trucks at Hermansville. 8 Progar and Hutton testified that , because of the loss of several large customers in early 1986, the West Chicago fabrication plant had lost some 75 percent of its volume of production. 10 Progar testified that in 1985 the Respondent changed its "philoso- phy" from one of establishing numerous facilities around the country to one of "asset utilization"-i.e., consolidation of operations into fewer fa- cilities that would be used more intensively . He further testified that the West Chicago fabrication plant was operating only one shift in 1985, even before the loss of work referred to in In 9 LEAR SIEGLER, INC. 859 On June 27 all the Respondent's full-time em- ployees at Hermansville were informed by letter that they were indefinitely laid off. The employees laid off included those whose task of unloading trucks was subcontracted to Meyers Transporta- tion. The Respondent contends that it had no choice but to move its Hermansville fabrication work to West Chicago, and therefore that the June 27 lay- offs were inevitable. We find that contention un- persuasive. Although it may be argued that there were a number of conditions militating in favor of relocating the Hermansville production work to West Chicago, most of those conditions-the inad- equacy of the Hermansville facility, the loss of work at West Chicago, the Respondent's new "phi- losophy" of "asset utilization," and the installation of more efficient production equipment at West Chicago" I-existed months before the June layoffs. Even if, as the Respondent asserts, its lease negotia- tions with Brown Chair had reached impasse by mid-June, we cannot conclude that the failure of the parties to the negotiations to reach agreement compelled the relocation of fabrication work to West Chicago. The Respondent does not contend, nor does the evidence indicate, that it would have been impossible or even unprofitable for the Re- spondent to have continued to produce for Brown Chair in Hermansville and to have augmented that production to the extent necessary from its West Chicago plant. Indeed, we infer that the Respond- ent would have adopted exactly that course for at least several months if the lease negotiations had succeeded, because the parties to those negotiations apparently contemplated that construction on the new facility would not even begin before Septem- ber.12 The Respondent's economic defense is undercut further by its own internal inconsistencies. Thus, the allegation that the failure of the lease negotia- tions with Brown Chair necessitated the relocation of production from Hermansville to West Chicago is contradicted by Hutton's testimony that the only reason for the move was to make optimal use of the Respondent's assets. Moreover, we find it curi- ous that the Respondent, contrary to its "philoso- phy" of "asset utilization" and in spite of substan- tial excess capacity and new and more efficient equipment at West Chicago, nonetheless forged I' In February 1986, the Respondent installed a computerized saw for cutting foam at its West Chicago fabrication facility. The new machine was set up to produce the same kind of chair cushion produced at Her- mansville for Brown Chair, it could produce 4200 such cushions in 8 hours, compared with only about 900 by an exceptionally skilled worker with a band saw of the type used in Hermansville. 12 See fn 8, supra. ahead with negotiations over a 10-year lease on a new facility at Hermansville. Even if the Respondent had been forced by eco- nomic conditions to shift its Hermansville fabrica- tion work to West Chicago, there is no evidence that there was any such compelling reason for it to lay off the employees who had unloaded trucks at Hermansville and to subcontract their unloading duties. Indeed, the Respondent does not contend that the layoff of those employees and the atten- dent subcontracting were economically motivated. Although Progar's testimony indicates that the Re- spondent may have realized some savings by sub- contracting, there is no reason to believe that such savings could not have been realized long before the Respondent learned of the union organizing campaign. To summarize, then, we find that the Respond- ent has not shown that it would have transferred production and laid off its Hermansville employees on June 27 had it not been for their participation in the union organizing campaign. Accordingly, we agree with the judge that the Respondent has failed to carry its Wright Line burden, and that its actions violated Section 8(a)(3) and (1) of the Act.12 The Respondent contends, however, that the judge erred in analyzing the case under Wright Line. In the Respondent's view, the action com- plained of here amounted to a plant closing , the va- lidity of which must be assayed under Textile Workers Union v. Darlington Mfg. Co. 14 In that landmark case, the Supreme Court ruled that an employer may terminate its entire business for any reason it pleases-even antiunion animus-without violating the Act, but that the partial closing of a business would violate Section 8(a)(3) if motivated by a purpose to chill unionism in any of the em- ployer's remaining plants, and if the employer rea- sonably might have foreseen that the closing would likely have that effect. 15 The Respondent argues that neither of the Darlington conditions for a vio- lation have been met in this case . The judge dis- agreed. He found that the Respondent's actions 18 In so finding, we do not rely on the judge's characterization of the timing of the Respondent's actions as "precipitous" when compared with the length of time it took the Respondent to convert certain other pro- duction facilities to distribution centers . The record does not reflect how closely the circumstances of the other conversions resembled those in Hermansville, and absent such information we are unwilling to draw an adverse inference from the fact that the conversion of the latter facility was accomplished more rapidly . (We agree with the judge, however, that the timing of the layoffs, as well as of the threats and promises by Progar and Lang-shortly after the employees' organizing efforts began-further indicates the pretextual nature of the Respondent's defense ) We also do not rely on the judge's finding that the layoffs and transfer of operations were made permanent after the Union won the election. That finding would not , in any event, affect the scope of the Order. 14 380 U.S. 263 ( 1965). 10 380 U.S. at 273-275. 860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with respect to its Hermansville facility were moti- vated by an intent to chill unionism, and that there was affirmative evidence of an actual chilling effect on the Respondent's remaining employees. We do not rely on the judge's analysis in this re- spect, because we think that both he and the Re- spondent are mistaken in attempting to apply the Darlington analysis to this case . In Darlington, the employer ceased operations entirely at the affected plant and sold all the plant's machinery and equip- ment at auction. 16 The Respondent here, by signifi- cant contrast, did not cease operations; instead, it transferred its fabrication work to its West Chicago plant, and subcontracted the remaining work (the unloading of trucks) to Meyers Transportation. Both discriminatory relocation of work-the "run- away shop" gambit-and discriminatory subcon- tracting were explicitly distinguished from partial closings in Darlington, 17 and have been found con- sistently to violate Section 8(a)(3) when motivated by antiunion animus. 18 Because we find this case distinguishable from Darlington, we do not rely on the judge's analysis of the "chilling effect" of the Respondent's actions. 2. The judge found that the Respondent violated Section 8(a)(5) of the Act when , after the Union was certified as the bargaining agent for its produc- tion employees at Hermansville , it contacted laid- off employee Jalaine Whitens directly and recalled her to a new job involving unit work, at a substan- tially higher rate of pay, without notice to or bar- gaining with the Union. The Respondent excepts. It argues that, although the complaint alleges that the rehiring of Whitens involved wages, hours, and other terms and conditions of employment in the unit, it does not allege that her new job is in the bargaining unit. The Respondent further urges that the Union seems to believe that Whitens is not a unit employee. Finally, the Respondent asserts that a major portion of Whitens' new duties are office clerical in nature, and thus do not fall within the unit represented by the Union. We find no merit in the Respondent's exception. An election was held on July 22 among the Re- spondent's production and maintenance employees. A majority of the ballots were cast in favor of the Union, which was certified as the exclusive bar- gaining representative for those employees on July 30. About July 31, Supervisor Barbara Malone, on 16 Id. at 266. 17 Id . at 272-273 and fn. 16. See also B&P Trucking, 279 NLRB 693, 701 (1986) 1e See, e.g, Pacemaker Driver Service, 269 NLRB 971, 979-984 (1984), enfd. in relevant part sub nom. Carrier Corp. v. NLRB, 768 F.2d 778 (6th Cir. 1985); Garwin Corp., 153 NLRB 664 (1965), enfd. in relevant part 374 F.2d 295 (D.C. Cir. 1967), cert. denied 387 U.S. 942 (1967) (reloca- tion of work); B&P Trucking, supra; Hood Industries, 248 NLRB 597, 601 (1980), modified 273 NLRB 1587 (1985) (subcontracting). Progar's instruction, telephoned Whitens and invit- ed her to return to work in the customer service department, effective August 4. The new position paid $6.75 per hour, an increase of $1.60 over the wage rate for her previous job in the "Saws De- partment." It is undisputed that the Respondent did not notify the Union, or afford it an opportunity to bargain, about the rehiring of Whitens. In her new position, Whitens spends at least a portion of her time performing work that, until June 27, was performed by employees in the unit. Thus, Malone admitted that, both before the layoff and after her recall, Whitens did some work load- ing and unloading trucks, and that she still occa- sionally cuts samples of foam for Brown Chair, as she did before June 27. Whitens verified that before she was laid off, she cut on a tilt saw and loaded trailers, and that she still loaded trucks for Brown Chair. Moreover, we do not agree with the Respondent that Whitens' other duties are office clerical in nature. Whitens testified that, apart from cutting foam samples and loading trucks, she takes orders from Brown Chair, finds out what the Re- spondent has in stock and what needs to be or- dered, does a daily card index , and writes out sales and bills of lading . Those duties are of the kind that the Board typically associates with plant cleri- cal employees, who generally are included in main- tenance and production units . 19 Accordingly, we agree with the judge that Whitens performs unit work to a significant extent, if not exclusively, in her new job, and therefore that the Respondent violated Section 8(a)(5) when it failed to notify the Union and bargain with it, but instead dealt with her directly, over her rehiring on different terms and conditions of employment.20 3. In his recommended Order, the judge directed the Respondent, inter alia, to reestablish and resume production operations at Hermansville at the level and manner of operation that existed up to June 27, and to offer to reinstate all the laid-off unit employees. The Respondent excepts to both of those provisions.21 19 See, e.g, Hamilton Halter Co., 270 NLRB 331 (1984). 20 Tarlas Meat Co., 239 NLRB 1400 (1979) The Respondent's conten- tion that bargaining was not required because the Union is not interested in bargaining is unpersuasive. The testimony on which the Respondent relies establishes that the Union did not learn of Whitens' rehiring until after it had occurred, and did not discover that she was earning a sub- stantially higher wage rate until a month or more after she had returned to work. The Union's attitude toward bargaining over Whitens' rehiring, long after it had taken place, is immaterial . The Respondent's statutory duty was to offer the Union an opportunity to bargain before it took action. Instead, the Respondent presented the Union with a fait accompli; under such circumstances, an employer will be found to have violated the Act, even absent a union demand for bargaining 21 The Respondent asserts that it was deprived of due process because the judge ordered restoration of the status quo ante even though unlaw- Continued LEAR SIEGLER, INC. It is the Board's usual practice in cases involving discriminatory relocation of operations to require the employer to restore the operation in question and to reinstate all discriminatorily terminated em- ployees, unless the respondent can demonstrate that restoration of the status quo ante is inappropri- ate.22 However, the Board has not been consistent in the showing it has required of respondents. In numerous decisions, the Board has required proof that restoration of the status quo ante would be unduly burdensome;23 in others it has required a demonstration that restoration would endanger the respondent's continued viability;24 and in still others it has used both phrases seemingly inter- changeably.25 In order to put an end to this inconsistency and to the confusion it must engender, we have decided henceforth to apply only the "unduly burdensome" standard where restoration of the status quo ante is at issue. Our choice of the "unduly burdensome" test is based in part on its longstanding use and ac- ceptance by the courts'26 and in part on our per- ception that requiring respondents to prove a threat to their "continued viability" is too stringent a standard. The latter formulation implies that a restoration remedy is appropriate unless the re- spondent can show that its very existence would be imperiled by restoration of closed or transferred operations. We conclude that such a standard is un- realistically high, especially in the case of multifaci- lity businesses such as the Respondent. Requiring such an entity to reopen a demonstrably unprofit- able facility might not be found to threaten the sur- vival of the enterprise if it could offset losses from the reopened facility with profits from others; how- ful relocation or plant closure was not alleged or litigated. We disagree. The General Counsel at opening argument made it perfectly plain that the relocation of work was considered part and parcel of the Respond- ent's unlawful activity. Moreover, the General Counsel specifically stated at opening argument that a restoration order was being sought . The Re- spondent thus was put on notice from the commencement of the hearing that relocation was part of the case, even though it was not alleged in the complaint as a separate violation, and that restoration was the remedy re- quested. Accordingly, we find no merit in the Respondent's contention that it was deprived of due process. 22 See, e.g., B&P Trucking, supra at 703; Rebel Coal Co., 259 NLRB 258 fn. 2 (1981). 23 See, e.g, Woodline Motor Freight, 278 NLRB 1141, 1142 (1986), enfd. in relevant part 843 F.2d 285 (8th Cir. 1988); B&P Trucking, supra at fn 3; Purolator Armored, Inc., 268 NLRB 1268, 1269 (1984), enfd. 764 F.2d 1423 (11th Cir 1985); Great Chinese American Sewing Co, 227 NLRB 1670 (1977), enfd. 578 F.2d 251 (9th Cir. 1978). 24 See, e.g, Service Merchandise Co., 278 NLRB 185, 188 (1986); Hood Industries, 248 NLRB 597 fn. 3 (1980); R&H Masonry Supply, 238 NLRB 1044 fn 3 (1978), enf. denied in relevant part 627 F.2d 1013 (9th Cir. 1980) 25 See, e g., Hood Industries, 273 NLRB 1587, 1588 (1985); Rebel Coal Co., supra at fn. 2. 26 See, e g., Fibreboard Corp v. NLRB, 379 U.S. 203, 216 (1964), Team- sters Local 171 v. NLRB, 863 F.2d 946, 957-958 (D.C. Cir. 1988); Wood- line Motor Freight v. NLRB, 843 F.2d 285, 291 (8th Cir. 1988); NLRB v. R & H Masonry Supply, 627 F.2d 1013, 1014 (9th Cir. 1980). 861 ever, in many instances requiring such cross-subsi- dization (for indefinite periods) might well be found to be unduly burdensome. Accordingly, we abandon the use of the "continued viability" stand- ard27 in favor of the "unduly burdensome" test, which we shall apply exclusively in the future.28 We agree with the judge that the evidence intro- duced at the hearing does not establish that it would be unduly burdensome for the Respondent to reestablish its Hermansville operation. Progar admitted that, at the time of the hearing, most of the Respondent's equipment remained at the Her- mansville facility, and that all that would be neces- sary for restoration of production would be people and materials. The Respondent did not offer to show that it would be unprofitable to restore the Hermansville operation. On June 9, 1987 (some 5 months after the hear- ing), however, the Respondent filed a motion with the judge to reopen the record to permit the intro- duction of evidence that, it contended, would dem- onstrate that restoration of work to its Hermans- ville plant is inappropriate. The judge denied the motion and, as we have noted, ordered restoration of the work and reinstatement of the employees. He found that questions concerning the appropri- ateness of the remedy could be answered in the compliance stage of these proceedings. The Re- spondent excepts to the judge's refusal to reopen the record and renews its motion before the Board. The General Counsel opposes the motion and moves to strike the portions of the Respondent's brief that are based on evidence the Respondent seeks to introduce, but that is not a part of the record. We shall deny the Respondent's motion to reopen the record, but we shall permit the parties to introduce at the compliance stage evidence that may be relevant to the appropriateness of the resto- ration and reinstatement portions of the remedy. This approach comports with our usual policy of leaving the details of the remedy to the compliance process.29 It also will be more efficient than re- opening the record, which would entail another hearing before an administrative law judge, with a possible appeal to the Board, before compliance proceedings could even begin. Under our ap- proach, the issues of restoration and reinstatement will go directly to the compliance process, where 27 To the extent that the decisions cited in fns 24 and 25, and other decisions, have relied on the "continued viability" standard, those deci- sions are overruled. 28 Our decision today also will put an end to the anomaly of using tests of differing stringency in an interchangeable fashion See cases cited at fn. 25, supra 26 See, e.g., Dean General Contractors, 285 NLRB 573 (1987). 862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD they will be decided along with other issues con- cerning the remedy . 30 We stress that both the Re- spondent and the General Counsel will have every opportunity at the compliance stage to introduce any evidence that may be pertinent to the remedy, provided of course that such evidence was not available prior to the unfair labor practice hearing. We are aware that the approach we take today has met with mixed reviews in the courts of ap- peals.31 However, in several cases in which courts were unwilling to allow the appropriateness of re- instatement to be decided in compliance proceed- ings, the Board had unequivocally ordered rein- statement; its orders in those cases did not allow the respondents to introduce evidence at compli- ance bearing on the appropriateness of the remedy. 32 The courts may have been concerned that if such noncontingent orders were enforced, the Board might ignore all evidence of the inappro- priateness of reinstatement , and bring contempt proceedings against the respondents based on the literal terms of the orders.33 The Order we issue today, by contrast, expressly provides that the Re- spondent may introduce such evidence; the clear implication is that if the Respondent can demon- strate that restoration of its Hermansville operation would be unduly burdensome , restoration will not be required under this Order. Thus, court enforce- ment of the Order in this case will enable the Board to require restoration only if the Respondent cannot show that restoration would impose an undue hardship. Although the Board in Hood Industries, 273 NLRB 1587 (1985), granted a respondent's motion 30 Also, under our approach, if a court of appeals were to find that the June 27 layoffs were lawful, it would not be necessary to decide whether restoration and reinstatement are appropriate remedies. 31 Compare, e.g., NLRB v. North Carolina Coastal Motor Lines, 542 F.2d 637, 638 fn. 2 (4th Car. 1976); NLRB v. Globe Mfg. Co., 580 F.2d 18, 21-22 (1st Car. 1978); NLRB v. Plastilite Corp., 375 F.2d 343 (8th Car 1967) (leaving issue of appropriateness of remedy to compliance, ap- proved by courts), with NLRB v. Fort Vancouver Plywood Co., 604 F 2d 596, 601-603 (9th Car 1979), cert. denied 445 U.S. 915 (1980); NLRB v. Jacob E. Decker & Sons, 569 F.2d 357, 366-367 (5th Cir 1978); NLRB v. Biscayne Television Corp., 289 F.2d 338 (5th Car. 1961); NLRB v. Auburn Foundry, 791 F.2d 619, 622-623 (7th Cit. 1986) (dicta) (leaving appropri- ateness of remedy to compliance not accepted by courts) 32 See R. Vancouver Plywood Co, 235 NLRB 635, 646 (1978); Jacob E. Decker & Sons, 223 NLRB 70, 77-78 ( 1976); Auburn Foundry, 274 NLRB 1317, 1318 (1985) 99 Several courts expressed concern that their contempt powers might be involved unfairly under an approach such as the one we take in this case. NLRB v. Jacob E Decker & Sons, supra at 366-367; NLRB Y. Bis- cayne Television, supra at 340; NLRB Y. Auburn Foundry, supra at 621, 623. With all due respect, we perceive no such peril to the Respondent, because it faces no greater risk of being found in contempt under our ap- proach than it would if we were to grant its motion. Under either ap- proach, if restoration was determined to be an appropriate remedy, the Respondent could file exceptions with the Board and , if the Board did not find merit in those exceptions, the Respondent then could petition for appellate court review. Only if a court of appeals enforced a restoration remedy, and the Respondent still refused to comply , could the Board proceed against the Respondent in contempt. to reopen the record to take evidence concerning the appropriateness of the restoration remedy, the Board in that case did not indicate that it was obli- gated to do so. We believe no such obligation exists, and that the Board in Hood was simply exer- cising its discretion in reopening the record. We do not intimate in any way that we think the exercise of discretion in that case was improper . We do be- lieve, however, that for the reasons stated above, the more efficient approach is to leave questions concerning the appropriateness of the remedy to compliance proceedings. Accordingly, we adopt the judge's recommended Order, including the provisions for restoration of the Respondent's Hermansville operation and the reinstatement of the laid-off unit employees, subject to the condition that the Respondent may intro- duce at compliance any evidence bearing on the appropriateness of those portions of the remedy that was not available prior to the hearing.34 ORDER The National Labor Relations Board orders that the Respondent, Lear Siegler, Inc., No-Sag Prod- ucts Division, Hermansville, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Transferring operations and effectively termi- nating employees by placing them on indefinite layoff because of the employees' actions in pursu- ing union affiliation for purposes of collective-bar- gaining representation. (b) Interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act by interrogating employees about union support or union activities , by threat- ening plant closings or loss of jobs, by preparing and requiring employees to sign a document dis- avowing their support for any union, by promising benefits, by granting benefits including a pay raise and removal of disciplinary warnings, by request- ing the return of signed union authorization cards, and by ordering the removal of union campaign materials. 34 A finding at the compliance stage that restoration of the status quo ante is not appropriate would not, of course, preclude make-whole relief to the discnminatees or their reinstatement at one of the Respondent's other facilities. See, e.g., Strawsine Mfg. Co., 280 NLRB 553 (1986). We grant the General Counsel's motion to strike from the Respond- ent's brief all references to nonrecord evidence and all argument based on such evidence The General Counsel requests that the remedy include a visitatonal clause authorizing the Board, for compliance purposes , to obtain discov- ery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing the Board's Order. Under the circumstances of this case , we find it unneces- sary to include such a clause, and we deny the General Counsel's request. Cherokee Marine Terminal, 287 NLRB 1080 (1988). LEAR SIEGLER, INC. (c) Bargaining directly and unilaterally with em- ployees in regard to wages, working conditions, and recall from layoff, without first notifying the International Union, United Automobile, Aero- space & Agricultural Implement Workers of Amer- ica (UAW), AFL-CIO, and offering it a meaning- ful opportunity to bargain over those subjects. (d) In any other manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Reestablish and resume production operations at its Hermansville, Michigan facility in a manner consistent with the level and manner of operation that existed before the operation was closed on June 27, 1986; offer reinstatement to all employees placed on indefinite layoff on that date who held positions within the following bargaining unit:35 All production and maintenance employees of the Respondent at its Hermansville, Michigan location; but excluding office clerical employ- ees, technical employees, professional employ- ees, guards and supervisors as defined in the Act; make them whole for the losses they incurred as a result of the discrimination against them, in the manner specified in the remedy section of the judge's decision; remove from its files any refer- ences to those unlawful layoffs; and notify the em- ployees in writing that this has been done and that the layoffs will not be used against them in any way. (b) 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. (c) On request, recognize and bargain with the Union as the exclusive collective -bargaining repre- sentative of its employees in the bargaining unit set forth above concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreeement. (d) Treat the initial year of union certification as beginning on the date this Order is complied with. (e) Mail to each employee in the appropriate bar- gaining unit at his or her last known address and 95 The parties are free to introduce at the compliance stage of these proceedings any evidence relevant to the appropriateness of the restora- tion and reinstatement portions of this Order , provided that such evi- dence was not available at the time of hearing on the unfair labor prac- tices alleged and found herein. 863 cause to be published in a newspaper of general circulation in Hermansville, Michigan, after being duly signed by Respondent's representative, copies of the attached notice marked "Appendix."36 (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 98 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD AN AGENCY OF THE UNITED STATES GOVERNMENT The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT transfer operations and effectively terminate our employees by placing them on indefi- nite layoff because of their actions in pursuing union affiliation for purposes of collective-bargain- ing representation. WE WILL NOT interfere with , restrain, or coerce our employees in the exercise of rights guaranteed them in Section 7 of the Act by interrogating em- ployees about union support or union activities, by threatening plant closings or loss of jobs, by pre- paring and requiring employees to sign a document disavowing their support for any union, by promis- ing benefits, by granting benefits including a pay raise and removal of disciplinary warnings, by re- questing the return of signed union authorization cards, and by ordering the removal of union cam- paign materials. WE WILL NOT bargain directly and unilaterally with employees in regard to wages, working condi- tions, and recall from layoff without first notifying the International Union, United Automobile, Aero- space & Agricultural Implement Workers of Amer- 864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ica (UAW), AFL-CIO, and affording it a meaning- ful opportunity to bargain over those matters. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL reestablish and resume production op- erations at our Hermansville, Michigan facility in a manner consistent with the level and manner of op- eration that existed before the operation was closed on June 27, 1986; offer reinstatement to all employ- ees placed on indefinite layoff by the transfer or subcontracting of operations who held positions within the following bargaining unit: All production and maintenance employees at our Hermansville, Michigan location; but ex- cluding office clerical employees, technical employees, professional employees, guards and supervisors as defined in the Act; make them whole for the losses they incurred as a result of our discrimination against them, in the manner specified in the remedy section of the judge's decision; remove from our files any refer- ence to their unlawful layoffs; and notify them in writing that this has been done and that their lay- offs will not be used against them in any way. WE WILL, on request, recognize and bargain with the Union as the exclusive collective-bargain- ing representative of our employees in the bargain- ing unit, and put in writing and sign any agreement reached on terms and conditions of employment for employees in the unit. LEAR SIEGLER, INC., NO-SAG PROD- UCTS DIVISION Gerald McKinney, Esq., for the General Counsel. Dan W. Chandler, Esq., of Detroit, Michigan, for the Re- spondent. Dennis C. Valkanoff, Esq., of Escanaba, Michigan, for Les Brown Chair Company. DECISION STATEMENT OF THE CASE RICHARD H. BEDDOW JR., Administrative Law Judge. This matter was heard in Escanaba, Michigan, on 12-15 January 1987. Subsequent to an extension of the filing date, briefs were filed by the General Counsel and Re- spondent. The proceeding is based on a charge filed 11 September 1986,1 as amended, by International Union, United Automobile, Aerospace & Agricultural Imple- ment Workers of America (UAW). The Regional Direc- tor's complaint dated 29 October 1986, alleges that Re- spondent, Lear Siegler, Inc., No-Sag Products Division, a Delaware corporation, violated Section 8(a)(1) and (3) ' All following dates will be in 1986 unless otherwise indicated. of the National Labor Relations Act at their Hermans- ville, Michigan facility by interrogating employees re- garding their union sympathies and reasons for desiring union representation, preparing and requiring employees to sign a document disclaiming their support for the Union, threatening employees with closure of its Her- mansville facility and loss of jobs, requesting employees to seek the return of union authorization cards from the Union, ordering employees to physically remove union campaign materials, offering benefits, removing employ- ee disciplinary warnings from personnel files, indefinitely and discriminatorily laying off all its bargaining unit em- ployees, and directly dealing with a laid-off employee by offering recall to a new job description with an increase in pay without prior notice to the Union or affording the Union the opportunity to negotiate and bargain. On a review of the entire record in this case and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is engaged in Defense contracting with various offices and facilities throughout the United States. Respondent was engaged in the manufacture, dis- tribution, and sale of foam rubber products at a facility in Hermansville, Michigan, between 1982 and June 1986. It annually received goods valued in excess of $50,000 at its Hermansville location from points outside Michigan and it admits that at all times material it is, and has been, an employer engaged in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. It also admits that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Respondent manufactures spring systems, components, frames, mechanisms, and flexible foam at more than a dozen facilities in the United States and Canada for use by manufacturers of furniture and bedding. In July 1982 it began operating a facility at Hermansville where it cut foam rubber into varying shapes for distribution and sale, primarily to a nearby manufacturer and major customer, Les Brown Chair Company. In February 1985 Respond- ent merged the foam operations division into its No-Sag Division under the responsibility of Division President Allen Huttom. Flexible polyurethane foam is manufactured at its pour plant in West Chicago, Illinois, into bulk "buns" for fur- ther cutting and fabrication into products for bedding and furniture manufacturers . In 1985 Respondent's prin- cipal fabrication operation was at a plant in West Chica- go, next to the pour plant, and at satellite plants in Grand Prairie, Texas, Dubuque, Iowa, Milledgeville, Georgia, and Hermansville, Michigan. Excessive customer requirements at Hermansville have been supplemented from the West Chicago facility. The production capacity and customer requirement at Her- mansville has been between 400 and 600 chairs per day. Brown Chair, which is located approximately 900 feet LEAR SIEGLER, INC. 865 from Respondent's facility, planned to expand its produc- tion to between 1000 and 1200 chairs a day, more than Respondent could match at its Hermansville facility. Brown Chair began construction of a new building in April 1986. It was completed and began operating the second week in July, following a 1-week vacation shut- down. Subsequent 1986 production increased from 600 chairs a day to over 1000. Respondent's existing operations were housed in a leased, older wooden structure, that essentially was un- suitable for expansion or modernization . In February 1986, Brown Chair proposed that it construct a new fa- cility, part of which would be leased to Respondent for manufacturing and part of which was to be used by Brown Chair for warehousing of its finished goods. Re- spondent and Brown Chair then discussed a plan for Re- spondent to build a new facility capable of handing the expected production increase. This proposed new facility was to be erected on property owned by Brown Chair and financed through Economic Development Corpora- tion funding. On 23 April, subsequent to the parties reaching a ten- tative agreement, Brown Chair wrote Hutton, with con- firming details that included an estimated cost of $300,000, covered by a 10-year , $3965-a-month lease pay- ment by Respondent, with construction expected to begin in September . In discussions on 27 and 28 May, Respondent indicated it would not commit to a 10-year lease unless the lease could be terminated by Respondent if Brown went out of business or purchased foam from another supplier. Brown indicated it required an uncon- ditional commitment for business reasons and to meet private banking requirements. It also proposed that it would agree to continue to purchase foam from Re- spondent conditioned on price and quality being satisfac- tory, in its sole discretion . In a subsequent letter Brown indicated the long and beneficial relationship enjoyed be- tween the companies, and restated and amended the pro- posals discussed on 6 June and 11 June, that Respondent be the sole supplier , absent material changes, as long as price and quality remain competitive, subject to an arbi- tration clause. Respondent's witnesses testified that prior to 18 June it had not decided on its course of action ; however, on 19 June, subsequent to his meeting with employees, Re- spondent's director of manufacturing, Joseph Progar, no- tified Brown Chair verbally that it wished to transfer fabrication to its West Chicago plant. President Brown testified that he was not sure that Progar said that lease negotiations were off but he "presumed" that the discus- sions were "dead" when Respondent announced its plans to change the location of its fabrication operation. Brown also testified that in early June he was aware of the ongoing union organization at Respondent's plant and that he did not believe that any definitive statement was made on 19 June by either party that the proposed lease arrangement was no longer possible . Subsequently, in 1987 Brown specifically told Respondent that the lease plan was no longer viable. In May, contemporaneously with the latter stages of the plant lease negotiations, Respondent's employees began discussing their feelings concerning a need for union representation . On 11 June, five of Respondent's eight full-time employees met with union organizer Gerald LaFave, the Union notified Respondent of its or- ganizing campaign. The letter was received by Respond- ent during the morning of 13 June . That same date, about 3:25 p.m., John Lang, Respondent's facility manag- er, approached employee Daniel LaFave as he was working and asked if he was related to anyone associated with the Union, and if he (Lang ) had said or done some- thing to bring on the union campaign. That same after- noon Lang also approached employee Larry Bellmore in the warehouse area, asked Bellmore if he thought the "Union deal" was "going to go through," and asked if it would do any good if Progar spoke to the employees. On or about 15 June while on a fishing trip, Lang initiat- ed a conversation with employee Steve LaFave2 by asking how he "thought the Union was going to go." Steve replied that there were a lot of unhappy people and that it would go. On 16 June Daniel LaFave wore a union cap to work and distributed union buttons, T-shirts, and bumper stick- ers to other employees . On 18 June, LaFave was ap- proached by Lang in the plant and was asked why the employees wanted a union and where he had gotten the union materials. LaFave responded that he did not have to answer and Lang walked away. On 19 June, Progar, whose office is located at Re- spondent's West Chicago facility, came to the Hermans- ville plant and held a meeting with all the full-time em- ployees. Manager Lang and a supervisor , Barbara Malone, were also present. Several employees testified that Progar began the meeting by asking "What seems to be the problem here, why are you going for outside help?" When there was no response , Progar then said if an agreement was not reached they would close the plant. Daniel LaFave asked how long that would take and Progar replied, "We will shut the doors tomorrow." Steve LaFave testified that Progar also said that Brown Chair wanted nothing to do with a union supplier and that Brown had canceled an agreement with Respondent to build and lease a building to Respondent because of the employees' union organizing activities. He also testi- fied that Progar said that as of that time all part-time and probationary employees were fired and that if they could not come to some sort of agreement regarding the Union, the rest would also be without jobs. The employees then asked that the supervisors leave so they could meet among themselves . The employees testified to the effect that they had been caught by sur- prise, they were being forced into making some kind of decision, and they believed that from what Progar said that if they did not back down on the Union, they would lose their jobs. The majority decided to agree to discon- tinue union organizing efforts in exchange for a letter stating they could retain their jobs as well as an agree- ment that Respondent would begin a piecework compen- sation system and would revoke two disciplinary warn- 2 Employee Daniel LaFave is the nephew of union organizer Gerald LaFave; however, Steve LaFave is not related to either person. 866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ings (considered unjustified) that had been given to Daniel LaFave. Progar returned to the gathering and was asked if he would agree to sign a letter stating there would be no retaliation against the employees because of their union drive. Progar agreed but said something to the effect that "it would still be in the hands of Brown Chair." Progar dictated a "no-retaliation letter" and it was typed by Supervisor Malone . After it was signed, Progar said that inasmuch as he had signed, the employees should agree to sign a letter stating they would not seek outside representation . Steve LaFave recalls Progar saying that he needed something in writing to show Brown Chair regarding the union organizing . Sandra Pohl testified that either she or another employee asked Progar if it would be alright or if it would help if they wrote a letter to Bob Brown saying they were not for the Union. She further testified Progar responded that it would be a good idea and that if the employees would spread it around to Brown's workers that the Union was just a big rumor it would get back to Bob Brown . Progar then dic- tated a letter stating "We, the undersigned do not wish to seek outside representation to alleviate any problems we have or may encounter." The letter was passed to the employees and four signed . After James Malone and Daniel LaFave initially refused to sign, Progar told them that they were not cooperating and said , "I thought we had come to an agreement. . . . no one is forcing you to stay here. If you don't sign, I will have to take some kind of action." Progar placed the letter next to Daniel LaFave and both employes signed. Daniel LaFave testi- fied he signed because "I was afraid of being fired." Progar then sent for LaFave's personnel file, reviewed his disciplinary warnings, and tore them up. Progar then addressed the employees' request for a piecework system and promised that he would have it in place by Septem- ber. Progar then told the employees to remove all the UAW bumper stickers from their vehicles and not to wear any UAW materials in the plant anymore . He told Daniel LaFave to immediately remove his union cap, told Steve LaFave to remove the union sticker from his thermos bottle, and told all the employees to remove union buttons and T-shirts and dispose of all such union paraphernalia. Progar added that he did not want Brown seeing Respondent's employees wearing or displaying union paraphernalia . Progar then said he would provide free "Lear Siegler" hats and beer can coolers to all em- ployees. After being asked why Daniel LaFave had not received an October 1985 promised wage increase of 5 cents per hour, Progar stated he did not recall such a promise, but that effective immediately, LaFave would receive the increase. In response to their complaints that pay was too low, Progar also promised he would "work on wages." In response to a question about possible com- pany discounts employees had heard rumors about, Progar admitted Respondent had employee discounts at its other factory locations and said that as soon as he re- turned to Chicago he would supply them with the cata- log of discount items. After leaving the meeting with employees, Progar im- mediately went to Brown Chair and met with Bob Brown. Progar testified that at that time the decision to move fabrication to Chicago had already been made but that he wanted to inform Brown of the decision and gain his approval of the plan. Progar also testified that he be- lieved that during the conversation he showed Brown the signed letter wherein the employees had renounced their union organization effort. On 20 June the Union sent a letter notifying Respond- ent that it had filed a representation petition and that it was willing to prove its majority status through signed union authorization cards . On the day it was received by Respondent, 23 June, Supervisor Lang went to Daniel LaFave in the warehouse and asked if he could get the union authorization cards back . When LaFave declined, Lang asked LaFave if he was still for the Union and LaFave answered yes. Lang then said he would call Progar and that LaFave might be out of a job by the end of the week. By letter dated Friday, 27 June, the last regular work- day prior to its annual 1-week shutdown (sent with the employeees' regular paycheck), Progar advised each of the employees that: Due to changing business conditions we are ex- tending the normal shutdown indefinitely . There- fore, do not report back to work on Monday, July 7, 1986. We will contact you by telephone or mail on your return date . In the meantime you are on indefi- nite layoff. Respondent ceased regular production operation at Hermansville on 27 June, however, it retained a ware- housing operation unloading, storing, loading, and trans- ferring fabricated products supplied principally to Brown Chair. Most of the necessary production equipment re- mained at Hermansville . On 23 June Respondent con- tracted with Meyers Motor Transportation Co., for per- formance of the loading and unloading services at Her- mansville, work which was formerly performed by some of those employees indefinitely laid off on 27 June. Prior to this subcontracting, Meyers was only used for making foam product deliveries. The Board conducted an election on 22 July, and, on 30 July, the Union was certified as the exclusive collec- tive-bargaining representative for: All production and maintenance employees at its Hermansville, Michigan location; but excluding office clerical employees, technical employees, pro- fessional employees, guards and supervisors as de- fined in the Act. Subsequently, at Progar's directive, Supervisor Malone telephoned employee Jalaine Whitens on or about July 31 and offered her recall to work with a new job de- scription and an increase in pay. No notice or opportuni- ty was given the Union to allow bargaining regarding her reinstatement and rate of pay. Whitens continued to perform bargaining unit work using saws to cut foam and unloading trucks as well as performing new func- tions involving order processing and recordkeeping. LEAR SIEGLER, INC. 867 Three other persons (employed by Meyers), who gener- ally each worked 15 to 20 hours a week, performed the warehousing work that was performed prior to the layoff by Whitens and former employee Larry Belmore. One of the Meyers employees, Priscilla Schuette, began work immediately after the layoff. She testified that she works approximately 4 to 5 days a week and that her boss is Malone, Respondent's supervisor. As noted, the Union subsequently filed a charge with the Board and, on 16 December, the Regional Director also sought 10(j) injunctive relief in a district court. By order dated 18 March 1987, the District Court for the Western District of Michigan in Case No. M86-306 CA2 granted a preliminary injunction. At the request of the General Counsel, of 27 March 1987, I find good cause and reopen the record and receive into evidence as General Counsel's Exhibit 20 the opinion and order of the court granting the preliminary injunction.' III. DISCUSSION The issues in this case arose from the events surround- ing a union organizational drive at Respondent's Her- mansville production and distribution facility during May and June 1986. Coincidentally, this occurred at the same time Respondent was engaged in negotiations with its principal customer at Hermansville to expand production and build or lease a new facility. It is clear that this cus- tomer, Brown Chair, was aware of the union activity and had expressed some unclear degree of concern and that, otherwise, negotiations were close to being finalized into an agreement. Respondent reacted to the employees' organizational activity with a prompt series of actions, including em- ployee interrogations and threats of plant closure and loss of job while, at the same time, it abandoned its at- tempt to resolve the plant lease situation with Brown Chair. Instead, it substituted a plan that would transfer fabrication to its West Chicago facility and allow it to "indefinitely lay off" the troublesome Hermansville pro- duction employees. Then, after the laid-off employees voted in favor of the Union, and after the Union was certified as their bargaining representative, Respondent directly recalled one unit employee, under different con- 9 By pleading dated 4 June 1987, Respondent objects to the relief re- quested by the General Counsel, however, I find that its argument fails to state any proper basis for the rejection of a document that reflects the public "decision" of a Federal court and I affirm my decision that Exh. 20 is clearly admissible. Respondent also moves for receipt in evidence a copy of the transcript dated 13 February 1987 in the proceeding before the U.S. district court, as well as a copy of Respondent's proposed in- junction, which apparently were filed in that proceeding at the court's request, with attachments embracing two affidavits dated 25 February 1987. It is apparent that Respondent wishes these proposed exhibits to be re- ceived for purposes concerning the truth of "evidentiary " matters pre- sented before the district court Clearly, this is beyond the scope of proper relevance or admissibility before this administrative court. More- over, no attempt is made to offer good cause as to the relevance of the evidence or why the record should be reopened to allow admission of what appears to be either further argument, evidence available at the time of the hearing, or evidence of factual events occurring subsequent to the hearing. Furthermore, good cause is not shown to mitigate the un- timely nature of Respondent's request, over 2- 1/2 months after the dis- trict court's related decision and, accordingly, Respondent's motion for receipt into evidence of late-filed Exhs. 36 and 37 is denied. ditions of work and pay, without contacting or negotiat- ing with the Union. It is well established that direct dealings with employ- ees undermine a union's status as exclusive representative and inhibits parties from negotiating a collective-bargain- ing agreement, Tralas Meat Co., 239 NLRB 1400 (1979). Here, Respondent is shown to have collective-bargaining agreements at some of its other facilities and it is no novice in the area of labor-management relations and re- sponsibilities. Accordingly, I find that by its direct deal- ings with an employee, after a plantwide layoff and the following certification of the Union, Respondent is shown to have engaged in an action which clearly chilled the prospects for fruitful bargaining with the em- ployees' representative and I conclude it is shown to have violated Section 8(a)(1) and (5) of the Act in this respect, as alleged. Respondent otherwise defends its decision to close its Hermansville facility as permissible conduct based on le- gitimate business reasons consistent with the decision of the Supreme Court in Textile Workers v. Darlington, 380 U.S. 263 (1965). A. Evidentiary Matters After counsel for Respondent concluded his cross-ex- amination of the General Counsel's witness, Daniel LaFave, the court allowed Respondent to immediately proceed to examine the witness as his own. Under Re- spondent's direct examination, LaFave was asked if he had said anything to the Union after Respondent's meet- ing with employees on 19 June. LaFave replied that he went to the union office, told union representative Gerald LaFave what had happened and, at Gerald's sug- gestion, prepared handwritten notes of what had oc- curred in the meeting earlier that same day. LaFave left the statement with the Union and, prior to his testimony, the Board had no knowledge of its existence. On Respondent's request, the Union searched its case file (which it had brought to the hearing), found La- Fave's statement, and turned it over to Respondent. Re- spondent directed several questions to LaFave relevant to the preparation and contents of the statement. On con- clusion of Respondent's direct examination the General Counsel sought to introduce the statement into the record. Respondent objected to its admission, claiming it to be hearsay. The court deferred ruling and requested that the parties address the matter in their briefs. General Counsel contends that the statement is not hearsay and should be admitted as corroborative evi- dence, citing Rule 801(d) of the Federal Rules of Evi- dence which states: (d) STATEMENTS WHICH ARE NOT HEAR- SAY. A statement is not hearsay if- (1) PRIOR STATEMENT BY WITNESS.-The declarant testifies at the trial or hearing and is sub- ject to cross-examination concerning the statement, and the statement is . . . (B) consistent with his tes- timony and is offered to rebut an express or implied charge against him of recent fabrication or improp- er influence or motive . . . . 868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As pointed out by the General Counsel, Respondent's counsel stated to the court in the midst of his cross-ex- amination of Daniel LaFave, "We don't take it [direct testimony] as correct. We don't believe the truth was said." Counsel thereby implied recent fabrication by the witness. Inasmuch as the statement is consistent with La- Fave's prior oral testimony and it rebuts the express or implied claim of recent fabrication , the statement consti- tutes proper nonhearsay evidence under Rule 801(d)(1) and I conclude that it is admissible as offered by the General Counsel. It is noted that the document was pro- duced at the request of the Respondent , and Respondent exercised an opportunity to directly examine the witness shortly after existence of the document was brought to light. The contents of the document are consistent with and corroborate the witnesses testimony, the truthfulness of which was questioned by the Respondent, and the document rebuts Respondent 's allegation of untruthful- ness. Admission of the document otherwise is not shown to be prejudicial to Respondent 's rights and, accordingly, I receive General Counsel's Exhibit 17 into the record. B. Alleged 8(a)(1) Violations The record persuasively shows that immediately after the Respondent was notified by the Union of the orga- nizing campaign on 13 June, Plant Manager Lang, on separate occasions, questioned at least three employees about whether they thought the union organization would go through . On 16 June, Lang (who was not called as a witness) asked one of these same employees why he would want a union and where he had gotten union materials that he was wearing . The initial ques- tions, standing alone, do not appear to be so overbearing as to obviously tend to restrain, coerce, or interfere with employee rights guaranteed by the Act, see Rossmore House, 269 NLRB 1176 (1984), the latter question, how- ever, was the second inquiry made of Daniel LaFave (who also was asked about his relationship to union orga- nizer Gerald LaFave), it concerned where he had ob- tained union materials and it invoked the fearful response from the employee that "he did not have to tell." Under the circumstances, including the management's subse- quent conduct in the 19 June meeting, I conclude that the latter inquiry goes beyond the scope of casual ques- tioning concerning a subject of general interest in the plant and tends to be coercive and in violation of Section 8(a)(1) of the Act as alleged. Certainly, the cumulative coercive effect on LaFave which interfered with his rights to pursue organizational activity as shown by his subsequent submissions to Respondent's pressure to dis- avow their organizing attempt and as especially shown by Progar's threat to LaFave when he hesitated before signing the employees' letter revoking their support for any "outside" representation. The principal setting for the alleged threats of plant closure and loss of jobs was the meeting on 19 June be- tween Director of Manufacturing Progar and the em- ployees. On brief, Respondent contends that because of alleged inconsistencies in the testimony of the several employee witnesses regarding this event , such testimony is inherently unreliable . Respondent also maintains that the witnesses were struggling to recall testimony they had "gone over" in the preparation for trial. My observation of the several employee witnesses and my evaluation of their demeanor and testimony leads me to conclude that it is Respondent's argument that is in- consistent. Thus, I find that the employees' testimony displays the normal and nominal variances of independ- ent recall as contrasted with the sameness associated in the implied fabrication of "gone over" testimony sug- gested by Respondent . In substance, I find the testimony of the General Counsel's witnesses to be credible and I find that the series of events occurred at the meeting, as described herein, including the alleged comments made by Progar, to be a fair and accurate description of what took place. Although Progar's own testimony, made in response to leading questions by Respondent's own coun- sel, contains certain direct denials that he made threats to shut down the facility, no corroboration was offered by Respondent through the testimony of other supervisors who were present, including Malone, who testified but was asked essentially about other events or Lang, who was not called . Moreover, Progar's demonstrated duplic- ity in securing a disavowel statement from the employees at a time when he admittedly knew he was going to move the fabrication operation reflects adversely on his truthfulness and the credibility of his testimony. Based on the credible testimony of the several employ- ees, I find that at a lengthy meeting on 19 June with all employees, Director of Manufacturing Progar, while im- plying that the union activities had created problems with Respondent's principal customer, emphatically pre- sented the employees with the threats that the plant would close, possibly as soon as the next day. He an- nounced the firing of the two part-time employees and said that unless some sort of agreement was reached re- garding the Union, the rest of the employees would be without jobs. Then, after two employees balked at sign- ing the company-prepared union disavowel agreement, Progar said, "if you don't sign, I will have to take some sort of action," a statement that the employees believed meant that they would be fired. It is well established that an employer may not threat- en to close a plant or terminate employees because of union activities, Penn Color, Inc., 261 NLRB 395, 405 (1982). Here, Progar's statements, as well as the unrebut- ted subsequent statement of Plant Manager Lang on 23 June that he would call Progar and the employee "might be out of a job by the end of the week," because he had responded "yes" to Lang's inquiry if he still supported the Union, infringe on the employees Section 7 rights and, accordingly, I conclude that Respondent is shown to have violated Section 8(a)(1) of the Act in this re- spect, as alleged. The same meeting discussed above also included other verbal conduct by Respondent whereby it agreed to revoke disciplinary actions, granted a pay raise, and promised to pursue the granting of other benefits, all done in exchange for the employees' agreement to re- nounce union representation . The employees were in- structed to denounce the union campaign as "rumors" when speaking with the employees of the Respondent's LEAR SIEGLER, INC. 869 nonunionized customer, Brown, and to remove and dis- pose of all union paraphernalia. These actions, as well as Respondent's dictation and physical preparation of the union disavowal statement signed by the employees; its effective conditioning the employees ' future employment on their written promise to abandon their union activi- ties; and its subsequent 23 June request that employee Daniel LaFave get the employees' authorization cards back from the Union, also infringe on the employees Section 7 rights, see Statler Industries, 244 NLRB 144, 150 (1979), and Fimco, Inc., 282 NLRB 653 (1987), and, accordingly, I conclude that the General Counsel has shown such actions violate Section 8(a)(1) of the Act, as alleged. C. Layoff and Relocation of Work as an Alleged 8(a)(3) Violation The principal thrust of the General Counsel's argu- ment, as well as Respondent's defense, is directed at the allegation that the closing of production operations at the Hermansville facility, indefinite layoff of all employees and relocation of production to Respondent's West Chi- cago facility was a discriminatory, illegal action in viola- tion of Section 8(a)(3) of the Act. Here, I find that the General Counsel has met his ini- tial burden on a issue of this nature by presenting suffi- cient evidence to support an inference that the motivat- ing factor behind Respondent's plant closure was the Union's recent organizing activity. After 13 June, when Respondent received notification of the Union's organizational drive, it immediately began questioning employees and, by 16 June, the circum- stances surrounding these questions had become coercive and violative of employee rights. This initial response was quickly followed up with the 19 June visit by Direc- tor of Manufacturing Progar who, through threats of plant closure and loss of jobs, effectively intimidated the employees into signing a statement disavowing their union support. These threats were directly identified as caused by the employees ' support for union representa- tion and they provide ample evidence to establish a prima facie showing that Respondent's plant closure was unlawfully motivated, see Dorothy Shamrock Coal Co., 279 NLRB 1298 (1986). Accordingly, the record will be evaluated in keeping with the criteria set forth in Wright Line, 251 NLRB 1083 (1980); see also NLRB v. Transportation Manage- ment Corp., 462 U.S. 393 (1983), to consider Respond- ent's defense and, in the light thereof, whether the Gen- eral Counsel has carried his overall burden. Respondent, citing Darlington, supra, argues that an employer is entitled to terminate its business for any reason he pleases, including antiunion reasons, and that as pertinent here, this right is limited only with respect to partial closings where it is established that (1) the closing is motivated by a purpose to chill unionism in any of the remaining plants of the employer and (2) the employer may reasonably have foreseen that such clos- ing would likely have that effect. Respondent contends that the Darlington factors are not present here and that Progar's conduct at the 19 June meeting with employees merely shows that Re- spondent was concerned that the union drive would cause it to lose contracts and result in financial ruin. It further argues that the failed lease negotiations between Respondent and its customer shows that the closure was not due to union activity but would have occurred anyway. As noted, the employees' organizational drive coincid- ed with a critical period in Respondent 's negotiations with Brown Chair over proposals to construct a produc- tion and warehousing facility to provide foam products to meet the customers anticipated increased demand for materials. As late as Tuesday, 11 June, the parties dis- cussed terms of the lease proposal and anticipated final amendments were prepared in written form, and mailed from Brown Chair to Respondent . It also is established that Brown Chair became aware of the union drive shortly thereafter and that Respondent was aware of Brown Chair's knowledge. Division President Hutton testified that he had a busi- ness meeting with Progar and two other high-ranking company officials on 18 June . Hutton admitted that he personally visited Bob Brown on two occasions in May and June and that he was aware that Bob Brown knew about the union campaign. He also admitted that on 18 June he discussed the union campaign with members of his staff, including Lang and Progar and two other per- sons. He alleges that they discussed whether the union campaign had an impact on "what" they were planning to do and decided that it did not . He also stated that Progar did not have singular authority to close the Her- mansville facility. On redirect examination by Respond- ent's counsel, Hutton denied he had lunch with Progar on the 18th but admitted that he had met with him. He also testified that Lang had informed him about the Union on 5 May . This would indicate that Lang (who otherwise is shown to have engaged in social activity with employees) was aware of the employees initial dis- cussions of the possibilities of a union, even prior to the time they had contacted any union representative. Hutton also testified extensively about the Company's involvement in consolidation of plants and activities, conversion of some facilities to distribution centers, and the installation of more modern and productive machin- ery at remaining production facilities, including West Chicago. He also said that the Hermansville fabrication work was moved to West Chicago to optimize utilization of assets and not because there was not enough work in West Chicago. A review of the overall sequence of events presented here leads me to conclude that Respondent would not have indefinitely stopped fabrication at Hermansville and indefinitely laid off its employees on 27 June, if it had not been for the employees' attempt to seek union recog- nition. President Hutton was careful not to offer explanatory testimony relative to the full scope of Respondent's dis- cussions concerning the lease with Brown Chair, Brown's concern over the Union, and his decision to move fabrication to West Chicago and the timing there- of. As Progar testified , no decision was made prior to 18 June, however, Brown was notified of the relocation 870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD plan on the 19th. Although Hutton testified that the union campaign had no "impact" on what they planned to do, it is clear that they discussed the union situation on the 18th. The record clearly supports the inference that Respondent decided to at least "defer" the leasing plan to construct new and expanded fabrication facilities. Contrary to the Respondent's suggestion that negotiation with Brown Chair had reached an impasse , I find that as late as 11 June both sides expected to reach a meeting of the minds and I further find that no insurmountable dif- ferences are shown to exist that would have precluded the signing of a formal agreement. The one significant intervening event that could have precipitated Respondent's decision was the formal notice to the Company, received on 13 June, Friday, that a union campaign was underway . Respondent immediately reacted with a discussion of the Union during a high- level staff meeting on Tuesday, 18 June . This was fol- lowed by Progar's coercive meeting with , and his intimi- dation of, employees on the 19th . Progar then sought Brown's approval of a plan to utilize another facility to fabricate Respondent's Hermansville product. Brown tes- tified that Progar did not say at that time that the lease negotiations were no longer viable and he stated that no definite statement to that effect was conveyed until early 1987. On Monday, 23 June, Respondent received the Union's notification that it had a majority of authoriza- tion cards and had filed a representation petition. The same day Respondent entered into subcontracting agree- ment with a transportation company for the performance of warehousing and distribution functions at Hermans- ville. On Friday, 27 June, it mailed letters notifying em- ployees not to return to work after the previously sched- uled, annual 1-week shutdown. The representational elec- tion was held on 22 July and, without objection to the election by Respondent, the Union was certified on 30 July. Respondent then recalled a unit member, it other- wise expanded the number of subcontract workers, and it continued to supply Brown Chair 's expanding material needs with products fabricated in West Chicago and warehouse at the Hermansville facility . Significantly, the production equipment remained at Hermansville. Under these circumstances, I find that Respondent made two related decisions : first, to temporarily transfer the fabrication operation , indefinitely lay off employees, and suspend lease negotiations and, after 30 July, to per- manently adopt the transfer and layoff as modified by an increase in warehouse and distribution personnel. Re- spondent's decisions were motivated by the animus gen- erated by the union campaign and the Union's success in the election. As pointed out by the General Counsel, the precipi- tous timing of Respondent 's actions, including the attend- ant unfair labor practices discussed in this decision, dis- prove Respondent's asserted economic motivation. The pretextual nature of its defense is demonstrated by the revelation of Respondent's vice president, Robert Graves, who testified that since 1981, when two other fa- cilities were converted to distribution centers, the aver- age time between reaching a decision and making the conversation took approximately 5 months. Here, the time between the decision and implementation at Her- mansville was only 9 days, if made on 18 June as claimed by Respondent, or 4 days if actually finalized after the employees' signing of a disavowal statement was fol- lowed by receipt of the Union's letter which stated that the Union had filed a representation petition based on a majority of authorization cards. Turning to Respondent's reliance on Darlington, supra, the General Counsel also argues that Respondent did not actually close a distinct portion of its business operations. Here I find that its facility continued with bargaining unit work previously performed by laid-off workers by using both its own employee (recalled employee Whitens who also performed occasional subsequent fabrication work), and subcontracted warehouse workers. Moreover, the record shows facts on which to base a fair inference that a partial closing was motivated by an intention to chill unionism, with affirmative Lithograph Co., 204 NLRB 431 (1973). Here, the record shows that Jalaine Whitens was recalled to work and that she is the girl- friend of laid-off employee Larry Bellmore, who regular- ly visits the Hermansville facility . All the employees there, including those working for the subcontractor who now do his job, see him and he them, and thereby present the chilling lesson that engaging in unionism at Respondent's Hermansville facility can result in the loss of your job. Respondent's West Chicago employees are not free from chill as Progar testified he told the hourly employees in West Chicago of the closing of the Her- mansville production operations . The fact that the West Chicago employees currently have union representation does not negate such an inference , George Lithograph, supra, and it may be reasonably foreseen that the em- ployees' knowledge of Respondent's action would likely have a chilling, inhibiting effect on future labor-manage- ment negotiations. Here, Respondent's prompt transfer of production, its sudden break off of viable lease negotiations with its principal customer, its quick decision (compared to simi- lar past occurrences) to immediately convert the plant to a distribution center, and , of course, Respondent's pat- tern of illegal interference with its employees' Section 7 rights, shortly after they began to exercise those rights in their brief organizational campaign, all demonstrate the pretextual nature of Respondent's defense. Accordingly, I find that Respondent has failed to meet its burden of showing that the closure of its Hermansville production facility and transfer of operations to West Chicago was not primarily motivated by the illegal and discriminatory reasons demonstrated by the General Counsel . Specifical- ly, I find that Respondent would not have closed its Her- mansville production operations on 27 June, and subse- quently reaffirmed that decision after the election, were it not for the employees union campaign, their selection of the Union as their bargaining representative, and the subsequent certification of the Union on 30 June, and I conclude that the General Counsel has met his overall burden and shown that Respondent violated Section 8(a)(3) of the Act in this respect, as alleged . See Mid- land-Ross Corp. v. NLRB, 617 F.2d 977 (1980), and Hood Industries, 248 NLRB 597 (1980). LEAR SIEGLER, INC. 871 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By closing (or partially closing) its Hermansville plant production operations on 27 June 1986, subcon- tracting the plant's warehousing functions , and placing all its full-time production and warehousing employees on indefinite layoff because of the employees' actions in pursuing the union affiliation for purposes of collective- bargaining representation, Respondent violated Section 8(a)(3) and (1) of the Act. 4. By threatening to close its Hermansville operations, by interrogating employees about union support or union activities, by threatening loss of jobs, by preparing and requiring employees to sign a document disavowing their support for the Union, by promising benefits , by granting benefits including a signed union authorization card, and by ordering the removal of union campaign materials, Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act and thereby engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 5. By bargaining directly and unilaterally with employ- ees in regard to wages and conditions of recall from layoff, Respondent violated Section 8(a)(1) and (5) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Inasmuch as I found that Respondent violated the Act by terminating its bargaining unit employees through its indefinite layoff and discriminatory closing of its Her- mansville production facility, I find it necessary to order that Respondent be required to reopen and reestablish its Hermansville operation in order to restore the status quo ante existing prior to its commission of unfair labor prac- tices. The Board has long held that restoration as nearly as possible of the situation that would have prevailed, but for the unfair labor practice, is prima facie appropri- ate and that the burden rests with Respondent to demon- strate that it is not appropriate , see R & H Masonry Supply, 238 NLRB 1044 (1978), Rebel Coal Co., 259 NLRB 258 (1981). Respondent is part of an extremely large company with plant locations both within and without the United States, and is not an entity or corporation separate from Lear Siegler, Inc. There is no showing actual financial conditions and the balance of hardships for purposes of restoration clearly favor the laid-off employees. At the time the record was closed, the production equipment re- mained at Hermansville; trucks regularly delivered foam to Hermansville; the loading and unloading of trucks in Hermansville was being done by nonunion subcontracted employees; and as testified to by Respondent, the only thing needed to start up production again was bulk foam and the laid-off employees. Respondent suggest that the Board could fashion an adequate alternative remedy through the offer of employment at the relocated facility, a preferential hiring list, payment of transportation or moving expenses, or payment of backpay for a limited time period . Respondent's late-filed Exhibits 36 and 37 (see fn. 2) which were not received, allege facts relative to a subsequent loss of all of Brown Chair's business and the February 1987 closing of the warehousing and distri- bution functions at Hermansville. By pleadings dated 9 June, received by the Division of Judges on 15 June, Re- spondent moves for the reopening of the record and the receipt of tendered Respondent's Exhibits 38 through 57. These exhibits relate to events following the hearing that occurred at Brown Chair and at Respondent 's Hermans- ville, West Chicago, and a new Indiana facility. It is noted that part of the information offered refutes infor- mation offered in rejected Exhibits 36 and 37 (i.e., it would show that Respondent still had sales to Brown Chair in May 1987 and did not completely close down Hermansville until June 1987. By pleading dated 19 June the General Counsel op- poses granting of the relief requested. In addition to apparent questions concerning the reli- ability of the information offered, it is clear that the ex- hibits are not relevant and material to the merits of the decision here. To the extent that such information could be relevant to the appropriateness of the remedy re- quired, I find that an adequate opportunity will exist during the compliance stage of this proceeding for a more appropriate consideration of the limits and terms of the remedial actions necessary to establish the status quo ante and to remedy the loss incurred by employees as a result of Respondent's actions. Moreover, the opportuni- ty also exist for the negotiation of an appropriate settle- ment at any posthearing stage of this proceeding. Ac- cordingly, I deny Respondent's motion to reopen the record and I reject Respondent's late-tendered Exhibits 38 through 57. While it appears that subsequent events have occurred which might show that the continuation of business at Hermansville, after reestablishment , would be unduly burdensome, it is equally possible that Respondent could negotiate the renewal of customer contracts or gain pos- sible new business . Thus, it would be premature at this time to conclusively foretell that the reestablishment remedy is unworkable or inappropriate . Therefore, the details of a final solution must be left to the compliance stage of this proceeding or to subsequent appropriate ne- gotiations by the parties. Returning to the remedy to be required here, I find that Respondent must accept the responsibility for its il- legally motivated and apparently precipitous actions in withdrawing from the lease negotiation with its customer and whatever subsequent loss of business ultimately may have occurred. As a basic preliminary remedial action, it is necessary that Respondent should be required to effect the reestablishment of its Hermansville production and distribution facility . It shall also be required to reinstate the various production and warehouse bargaining unit members, put out of work by the plant closure, to their former positions and they shall be made whole for loss of 872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pay and other benefits, in accordance with F. W. Wool- worth Co., 90 NLRB 289 (1950), plus interest as comput- ed in New Horizons for the Retarded, 283 NLRB 1173 (1987). It also shall expunge from its files any reference to their termination and notify them in writing that it has been done and that evidence of such unlawful action will not be used as a basis for further action against them. See Sterling Sugars, 261 NLRB 472 (1982). In view of the fact that the plant was closed before ap- propriate bargaining occurred with the newly certified Union and in order to ensure that the employees will be accorded the statutorily prescribed services of their se- lected bargaining agent for the period provided by law, I also recommend that the initial year of certification begin on the date that Respondent complies wtih the Order set forth below, see R & H Masonry, supra. Otherwise, be- cause of the serious nature of Respondent's violations and its overall display of a general disregard for the em- ployees' fundamental rights, I find it necessary to issue a broad order, requiring Respondent to cease and desist from infringing in any other manner on rights guaranteed employees by Section 7 of the Act. See Hickmott Foods, 242 NLRB 1357 (1979). As part of the relief sought, the General Counsel also seeks imposition of a so-called visitatorial clause whereby the Board would be authorized to engage in certain dis- covery activities in order to monitor compliance. Al- though requests for the imposition of such a provision re- cently have become a common practice , there is no showing that it is of particular applicability or usefulness in dealing with the type of unfair labor practice involved in this proceeding. Accordingly, the request is denied and no visitatorial clause will be imposed as part of the Order here. [Recommended Order omitted from publication.]