Sheller-Globe Corp.

116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sheridan Division, Sheller-Globe Corporation and International Union, Allied Industrial Workers of America, AFL-CIO. Case 8-CA-20209 August 17, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On June 29, 1988, Administrative Law Judge Thomas A. Ricci issued the attached decision.' The Respondent filed exceptions and a supporting brief and the General Counsel filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions,3 to adopt the recommended Order as modified and set out in full below. ' The issuance date of the judge's decision is corrected to read "June 29, 1988." 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings. The Respondent has also excepted to certain of the judge's factual findings Specifically, the Respondent excepts to the judge 's finding that the January 7, 1987 notice informed employees that the Respondent in- tended to close the Wauseon operation entirely and the judge ' s finding that the Respondent refused to rehire the AIW-represented employees The Respondent also excepts to the judge's finding that the Respondent proposed to the AIW-represented employees a severance agreement in place of any renewal of the AIW collective-bargaining agreement and to his statement that the individual severance payments were between $1200 and $2200 Finally , the Respondent excepts to the judge's finding that the Respondent sold its plant 3 building in February 1987. We find merit in these exceptions. The January 7, 1987 notice to employees states on its face that only the metals warehousing operation would be closed and that the production of certain products would be transferred to another facility The notice concludes that these changes would result in a loss of approximately 20 jobs held by AIW-represented employees In addition, it is clear from the record that the AIW-represented employees who signed the severance agreement never requested reemployment by the Respondent after the severance agreement became effective . As to the severance agreement itself, the record makes clear that the Respondent informed its AIW-represented employees that they could choose either to continue to work under a continuing contract or to accept the severance agreement. Further, the record establishes that the AIW-represented em- ployees received individual severance payments of between $ 1900 and $2500. Finally, the record makes clear that the Respondent reached a ten- tative agreement in February 1987 to sell its office products group but that the plant 3 building was not included in the sale These factual errors do not affect our decision 9 We agree with the judge that , in the context of this case, Personnel Director Ingle's question to Union President Michalkiewicz , "Further- more, how would [you] like to be charged with [an] unfair labor prac- tice", constituted a threat in violation of Sec 8(a)(1). We emphasize that Ingle's remark was made in an attempt to coerce Michalkiewicz to sign the severance agreement , an act necessary to further Respondent 's illegal plan to eliminate the unit In concluding that the Respondent violated Sec 8(a)(3) and (1) by dis- charging all the unit employees for discriminatory reasons, we emphasize The General Counsel has excepted to that por- tion of the judge's recommended remedy that deals with the backpay formula. The judge concluded that the 43 named discriminatees were entitled to backpay from February 28, 1987, the date that these employees were illegally discharged. The judge determined, however, that the standard back- pay remedy was not appropriate in this case. He reasoned, rather, that an "equitable formula" was appropriate here since the number of replacement employees had been reduced in the intervening period and there was thus no way to ascertain how much each discriminatee would have earned during that period. Under the judge's "equitable formula," the number of work hours performed by the re- placement employees would be added together and divided equally among the discriminatees. The amounts paid to individual discriminatees would then be based on the hourly rates set out in the contract at the time of the unfair labor practices. We find merit in the General Counsel's exception to the recommended remedy. In fashioning a remedy, the goal is "to effect 'a restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination."14 Where a respondent has been found to have violat- ed Section 8(a)(3) and (1) by unlawfully discharg- ing employees, we have long held that the best way to ensure that discriminatees are restored "as nearly as possible" to the position they would have been in absent the unlawful discrimination is to re- quire the respondent to reinstate those employees and to make them whole by awarding them back- pay in the amount they would have earned but for the respondent's unlawful discrimination.5 To cal- culate such amounts we require a respondent to preserve and make available to the Board its pay- roll, personnel, and other records. Here the record strongly indicates that the Respondent in the that the Union only agreed to the Respondent's severance plan after the February 18 meeting at which Respondent told employees that the plant would soon be closed and that work would end on March 2 or 5, state- ments that the Respondent knew to be false Relying on these misrepre- sentations, the employees agreed to accept the severance plan and to ter- minate work on February 28, when the contract expired This situation is far different from one in which the employees have full knowledge of what the employer intends to do and then, based on that knowledge, agree to the elimination of unit jobs . Cf. United Press International, 289 NLRB 309 (1988) The General Counsel alleged that the Respondent violated Sec . 8(a)(1) through statements made by Supervisor Gibson to employees Michal- kiewicz and McCarty to the effect that bargaining unit work would not be done by AIW-represented employees The judge made no finding re- garding this allegation In the absence of exceptions to the judge 's failure to find this violation, we dismiss, pro forma, this allegation of the com- plaint. 4 New England Tank Industries, 147 NLRB 598, 599 (1964), citing Phelps Dodge Corp v NLRB, 313 U S 177, 194 (1941). 5 Cf Iron Workers Local 373 (Building Contractors), 232 NLRB 504, 517-518 (1977) ("equitable" remedy appropriate where documentary evi- dence is insufficient) 296 NLRB No. 13 SHELLER-GLOBE CORP. 117 present case has evidence in its possession, i.e., pay- roll and personnel records, that will allow the cal- culation at the compliance stage of the amounts of backpay owed to the individual discriminatees6 and, indeed, the Respondent has made no argument to the contrary. Accordingly, we conclude that the backpay formula urged by the General Counsel is appropriate here. In this regard, we also agree with the General Counsel that discriminatees owed backpay should receive such backpay offset by the amounts of severance payments to the extent that the backpay owed exceeds the amounts of the sev- erance payments.7 Finally, with regard to those discriminatees who are owed no backpay, we agree with the General Counsel that they should retain the severance pay- ments that they received and to which they be- lieved they were entitled. In reaching this conclu- sion, we emphasize that it was the Respondent itself that coerced the discriminatees into signing the agreement and opting for the severance pay- ments. In these circumstances, it would be patently unfair to require the discriminatees to repay these moneys simply because the Respondent's unlawful plan has come to light and its severance agreement proved a sham. Accordingly, we will follow our long-held policy that a wrongdoer should not be allowed to benefit from its own unlawful conduct.8 We will modify the judge's recommended Order to reflect these changes. ORDER The Respondent, Sheridan Division, Sheller- Globe Corporation, Wauseon, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees it would file National Labor Relations Board charges against them if they persisted in their union activities. (b) Discharging employees in order to discour- age their union activities. (c) Refusing to bargain in good faith with Inter- national Union, Allied Industrial Workers of Amer- ica, AFL-CIO as the exclusive bargaining repre- sentative of the employees in the bargaining unit. The appropriate bargaining unit is: 8 We note that the Respondent produced at the hearing summaries of the number of replacement employees it employed each month after its unlawful discharge of the unit employees in February 1987 These sum- maries indicate that the Respondent has in its possession payroll and other records that will make it possible to determine which discrimina- tees would have continued to work for the Respondent and for how long, thus eliminating the possibility present under the judge's formula that individual discriminatees will not be made whole or will receive a windfall. ' We have long held that severance pay is properly considered as inter- im earnings. See W. R Grace & Co., 247 NLRB 698, 699 fn 5 (1980) 8 See, e.g., Big Sky Sheet Metal Co., 266 NLRB 21 ( 1983), and Atlantic Marine, 211 NLRB 230 (1974), affd 512 F.2d 1404 (5th Cir 1975). All of the Respondent's production and main- tenance employees at its Wauseon, Ohio, plant, including shipping department, but excluding all office and clerical employees, professional employees, guards and supervisors as defined in the Act, as amended, and those employed in the bargaining unit represented by another labor organization. (d) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer immediate and full reinstatement to all 43 employees named in the complaint to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any replace- ments hired in their former jobs on or after Febru- ary 28, 1987, and place the discriminatees for whom jobs are not immediately available on a pref- erential hiring list. (b) Make whole those employees entitled to backpay for any loss of pay or benefits they may have suffered by reason of the Respondent's dis- crimination against them, with interest thereon to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and New Ho- rizons for the Retarded, 283 NLRB 1173 (1987); provided that such amounts shall be offset by the amounts of the severance payments that these indi- vidual employees received, to the extent that such backpay amounts exceed the severance payments; provided further that those employees not entitled to backpay shall retain the severance payments they received. (c) On request, bargain with the Union as the ex- clusive representative of the employees in the ap- propriate unit on terms and conditions of employ- ment and, if an understanding is reached, embody such understanding in a signed agreement. (d) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way. (e) 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. 118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (f) Post at its place of business in Wauseon, Ohio, copies of the attached notice marked "Appendix."9 Copies of the notice, on forms provided by the Re- gional Director for Region 8, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted . Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 9 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 threaten to file National Labor Relations Board charges against employees in retal- iation for their union activities. WE WILL NOT discharge employees in order to discourage union activities among our employees. WE WILL NOT refuse to bargain in good faith with International Union, Allied Industrial Work- ers of America, AFL-CIO as the exclusive bar- gaining agent of our employees in the following unit: employees, guards and supervisors as defined in the Act, as amended, and those employed in the bargaining unit represented by another labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of the rights to self-organization guaranteed in Section 7 of the Act. WE WILL offer immediate and full reinstatement to all 43 employees named in the complaint to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any replace- ments hired in their former positions on or after February 28, 1987 , and WE WILL place the discri- minatees for whom jobs are not immediately avail- able on a preferential hiring list. WE WILL make whole the employees we unlaw- fully discharged on February 28, 1987, for any loss of earnings and other benefits resulting from the discharge, less any net interim earnings, plus inter- est. Such amounts shall be offset by the amounts of the severance payments that these individual em- ployees received, to the extent that such backpay amounts exceed the severance payments; provided further that those employees not entitled to back- pay shall retain the severance payments they re- ceived. WE WILL notify these employees that we have removed from our files any reference to the unlaw- ful discharges and that the discharges will not be used against them in any way. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit. All our employees are free to join or assist Inter- national Union, Allied Industrial Workers of Amer- ica, AFL-CIO or any other labor organization of their choice. SHERIDAN DIVISION, SHELLER- GLOBE CORPORATION Steven Wilson, Esq. and Christine Hoffer, Esq., for the General Counsel. Edward M. Mahon Jr., Esq., of Toledo, Ohio, for the Re- spondent. Joseph Szumski, International Representative, of Parma, Ohio, for the Charging Party. DECISION All of the Employer's production and mainte- nance employees at its Wauseon, Ohio, plant, including shipping department, but excluding all office and clerical employees, professional STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge. A hear- ing in this proceeding was held at Toledo, Ohio, on Jan- SHELLER-GLOBE CORP. uary 6 and 7, 1988, on complaint of the General Counsel against Sheridan Division, Sheller-Globe Corporation (the Company or the Respondent). The complaint issued on August 31, 1987, on a charge filed on July 1, 1987, by International Union, Allied Industrial Workers of Amer- ica, AFL-CIO (the Union), or the AIW. The main issue presented is whether the Respondent deliberately tricked the Union, and the employees it had long represented, into signing a severance agreement, whereby all the em- ployees lost their jobs, with the Company nevertheless continuing its regular operations with new, unrepresent- ed employees being paid at a much lower rate of pay. The conduct is alleged to have been a violation of Sec- tion 8(a)(3) and (5) of the Act. Briefs were filed by the General Counsel and the Respondent after the close of the hearing. On the entire record and from my observation of the witnesses , I make the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent has an office and a place of business in Wauseon, Ohio, where it is engaged in the manufac- ture and distribution of metal products. Annually in the course of its business, the Respondent sells and ships from this one of its locations products, goods, and mate- rials valued in excess of $50,000 directly to points outside the State of Ohio. I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that International Union, Allied Industrial Workers of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This Respondent is a very large company, operating plants in a number of States, including one in Fresno, California. The AIW has represented a unit of employees in the Wauseon location for a number of years, its last contact with the Respondent due to expire on February 28, 1987. At the same location there was also a unit of other employees, represented by a labor organization called MESA. On January 7, 1987, the Respondent posted a notice informing all its Wauseon employees of its intent to discontinue its Wauseon operation entirely, to put an end to its production activities there and to transfer some of it to its Fresno plant . That notice said the end of the Wauseon jobs would come in stages, start- ing in April 1987 and ending in September or October 1987. When the parties met in January and February 1987 to negotiate renewal of the AIW contract due to expire on February 28, the union officers and the employees it rep- resented were told, according to the General Counsel's witnesses, that all the jobs then held by AIW employees would be ended with finality by about March 1, 1987. The company representatives told the employees the Company was in process of turning its entire operation in Wauseon to another, outside company, and selling the 119 building in which the work was done to still another out- side company. And, while stressing the very imminent end of all jobs, the company representatives proposed a severance agreement, in place of any renewal of the AIW collective-bargaining agreement. Severance meant payment to all employees of a lump sum-$100 for every year worked, and final discharge of all AIW employees represented by that Union. It meant, of course, complete removal of the Union from the entire picture. Weighing 2 or 3 weeks of work at most, before inevitable dis- charge, against the severance payments, which totaled between $1200 and $2200, the Union and the employees decided to accept the severance agreement. As it developed, while the Company did sell the build- ing to a complete outsider , same real estate company, it did not discontinue its regular production operations there. In February it had about 25 employees represented by the AIW. During March, April, and May it had 17; in June it had 15; in July it had 14; and in August again 15. The number kept dwindling, but as late as January 1987, when the hearing took place in this proceeding, there were still seven employees doing the work previously done by the AIW employees. All these employees did the same work in the same location previously per- formed by the AIW employees. For all I know that work is still going on today. After the discharge of the AIW employees at the end of February 1987, the Re- spondent refused to hire any of its former employees. In- stead, it hired people off the street or from the Ohio Bureau of Unemployment , and paid them at a rate far below that called for in the old union contract. When the employees learned, in March, that the Com- pany was hiring people to continue doing their old work, some of them applied for employment , but each one of them was refused. Instead the Respondent hired people off the street and from the Ohio employment office. In place of the $8.75 per hour previously paid the AIW em- ployees it paid its new hires only $5.75 per hour. And, of course, there was no union representing the replacements and all the benefits called for in the old contract with the AIW were also discontinued. Why did the Company not hire its former employees to continue doing that same work? They were experi- enced, there is no indication of their lack of qualifica- tions, their work went right on as before. The only ex- planation for such refusal was a statement by the Re- spondent's principal witness that the Respondent had never done that in the past. It was no rational defense at all. It could have asked the old applicants who wanted to return to pay back the severance money they had re- ceived. A number of these employees testified that the only reason they had agreed to the severance arrange- ment was because they had been told there was no more than 2 or 3 weeks of work remaining to be done during February. All of them said that had they known their jobs would continue for months they certainly would never have agreed to the severance, which gave them much less money than they would have earned. This entire case turns upon a question of credibility. Considering the record in its entirety I credit the em- ployee witnesses against the management agents who 120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD talked to them before the people were discharged, and I find that they were deliberately mislead into believing their jobs were finished in order to get them to sign the severance agreement and to leave the place of long em- ployment. That the Respondent's purpose in all this was to rid itself of the AIW, and to run its business free of any union representing its employees , is equally clear. The testimony relates to three meetings between the parties, one in early January and two on February 4 and 18, 1987. The agreement was ratified by the union mem- bers on February 19 and it was signed by all the employ- ees on February 25, 1987. On Febuary 28 all the AIW employees were terminated. At the January 8 meeting the company representatives explained the notice the Company had posted on January 7, which publicized the plans to sell the business and the building . Jennie Michalkiewicz testified that at the Feb- ruary 18 meeting Patrick Johnson , the Respondent's principal spokesman, said that "the business . . . is going to be sold, and at this time, that so was the building .. . And there wasn't anything to do but to go on with either a continuing contract or a severance . . . He told us, at that time, that there'd possibly be two or three weeks work left." "Mr. Johnson said the people that bought it just didn't want us." When 'Michalkiewicz told Johnson on that day that the employees had agreed to the sever- ance, the lawyer responded : "it was a very smart deci- sion that we took the severance, because we probably would have been laid off on March the 3." Michalkiewicz also testified that at the February 18 meeting the employees were told by Johnson, "We had a continuing contract offered to us, to be laid off the first or the second of March, work two or three days of March, and then be laid off." Michalkiewicz went on to say "that is when we took our caucus and weighed the difference of the two or three weeks' pay compared to the 22 to 25 hundred dollars that people was going to re- ceive at the time." The witness also added that that day Johnson said, "there was two or three weeks' work left, but was a possibility, we went on and on going contract, we will be laid off the second or the third." Barbara Shaffer, also an employee, testified that at the February 4 meeting Johnson said . . . he thought we should carry on with our own-our old contract because at the end-by the first of April, there would only be eight to ten AIW employees left." "They were going to down-size and there wasn't going to be any work for other than eight to ten people ." (In fact there were about 17 for the following 3 months!) Testimony by Vivien Smith, about the February 18 meeting: He told us that the business part of the thing had been sold; the building hadn't been sold yet ... . Q. Alright. What else did he say? A. And that they were going to-there was only enough work left for approximately two weeks, at the most . . . . And after that, then they was going to shut it down. After they had caucused to discuss the situation, John- son was asked to explain again as to just who would be left at work. Again from Smith's testimony; "Pat John- son says, 'Eight to ten people, more or less' . . . . Then he proceeded to say that there wasn't any use of-that there wasn't going to be anybody left after April 1, prob- ably . . . because the business end had been sold; and that the ink was probably still wet." "Really saying that an agreement has been signed to sell ; not that the negoti- ations are going on; an agreement had been signed." "I think she [Michalkiewicz] asked for something about how many people would be left ; something about if we could finish the work; what work was left. And Pat Johnson words was no, either MESA would finish it or they would farm the work out, approximately two weeks of it." "The 18th, they said they were going to-the place had been-or the business was being sold, and they was going to do away with the paint room product. It'd be approximately two weeks left of that." Again: "when Jennie said, 'Can we finish the work?' Pat said, 'No, MESA would finish or they would farm it out."' John McClaren, the Union's business representative, testified that on February 4 "the 1984 memorandum was mentioned, that the company was interested in pursuing a similar memorandum in the future." (In 1984 the Com- pany had arranged a similar severance agreement with these employees.) As to the February 18 meeting, McClaren's testimony is: "Pat [Johnson] at that point, had said, 'we want to follow the-a similar agreement, which would be a severance payout.' . . . And I think it came right down to the fact that the plant , the statement was made, 'the business is going to be sold in the very near future."' "I think it was Pat that said it, that the work could be all done by within a week of March, you know, that the work in there would be done." Finally, there is the testimony of Mary Riker, AIW vice president. "I believe that Mr. Johnson said that things had changed . . . that they were going to shut down the plant, completely . . . and they told us there was possibly two or three weeks of work left on the floor, and we asked if we could do it, they said, 'no,' that they were going to let MESA people, or farm it out. And Pat did tell us that we would negotiate a continuing contract with us, but we could come in to work on March the 2nd, and be laid off, or possibly be laid off on March the 5th. Anyhow you looked at it, we would not be allowed to work beyond that day." All these employee witnesses said they were shocked at being told all their work would be finished in only 2 or 3 weeks. The January posted notice had suggested work would continue for a number of months, but that was different . And the money offered in severance was certainly more than they could have earned in so short a timejust 2 or 3 weeks. But the employees were quite clear that if they had known the work was going to con- tinue for the entire year they would not have agreed with the severance arrangement , because they would have earned much more at work than the severance brought them. Johnson's testimony, taken in its entirety, does not suf- fice to offset the foregoing evidence. He was not a truly credible witness in this case; at times he equivocated, he refused to answer some questions directly, and in some SHELLER-GLOBE CORP. respects admitted the testimony offered by the General Counsel. Several times he said the Company expected the AIW complement to be reduced to eight or nine em- ployees. He tried to create the impression that the Com- pany was indifferent to the Union's desire-either a sev- erance agreement or continuance of the old contract. But there is much in his testimony proving that it was the company which persuaded the union agents into accept- ing severance and discharge of all its members . "If that was going to occur [the announced shut down of the plant], we thought it would be more beneficial to the people to talk about that right away. . . . As a conse- quence, we felt that it would be better to go in and do it now as opposed to waiting ." "I will tell you this, that if I made the remark with regard to the two or three weeks work , it was made in context on February 4. It was made with regard to the purchase , and what I would have said was number 1, if the purchaser buys the business and chooses to move the business as it was their decision, it would probably take two or three weeks." Johnson said the information that it was going to take only 2 or 3 weeks to shut down everything came to him from Robert Ingles, the Respondent 's director of indus- trial relations. If that was the source of his information, how can I disbelieve the witnesses who quoted him as saying, as far back as February 4, that there was no more than 2 or 3 weeks of work left for them ? What more pressing argument could the Respondent use to persuade the Union into accepting the severance proposal, and that would remove the Union entirely from the picture? When the principal spokesman from the Company admits-as did Johnson at the hearing-"I was under the impression that the sale was imminent"-how can I doubt that he told the same thing directly to the union agents? The fact that the Company continued thereafter to have the same work done for many months, by non- union employees, is another matter. What counts in this case, is what the Respondent 's special representative led the employees to believe before they agreed to leave the Company. A witness who kept adding "ifs" and "maybes" into his story is a poor witness against direct testimony con- tradicting his own . A few examples will suffice: Q. Now, you have testified that you actually told the union committee that if the sale took place, that there was a possibility that the new purchaser would move the work out immediately? A. They could do that. Q. Right, and that's something you related to the committee? A. Its [sic] possible, yes. Q. You testified that you believed the option which was in the I think you said the Union's best interest was to take the severance agreement, cor- rect? A. Yes Q. And therefore I'm saying that since that was your belief, you attempted, as best you could, to persuade them of that fact in the meeting on the 4th and on the 18th? 121 A. If I thought it was the best for them, I guess I probably would have, yes. Q. Back to the February 4th meeting just briefly. You mentioned that if you ever made a comment about two or three weeks work remaining, that it would have been on February 4th, and that it would have related either to it or would take two or three weeks to wind down if the building is sold, or would take two or three weeks to wind down if the new purchaser decided it didn't want to operate in Wauseon any longer? A. That's correct Q. Are you saying you made the two to three weeks statement on the 4th, or that if you ever made the statement, you would have been-let me try again please? A. No, I understand what you're saying. If I made the statement ... . Q. Yes? A.... I made it on the 4th. Q. Are you sure you made it on the 4th? A. No. A final quote from Johnson's testimony will suffice: In the meetings on the 4th, and on the 18th, did you convey to the Union, what you knew about the status of the sell , as related to you, by Mr. Ingle? A. Its [sic] unlikely that it would have conveyed to them everything I knew, but I would have told them honestly, where I thought it was . On the 4th, I think my testimony basically was, that I knew ne- gotiations were under way, with a prospective pur- chaser, who is not identified. I did note that they did not want the building . When I met with Bob [Ingle] on the 17th, he told me that the negotiations were still going on, and they had moved on further. At some point, he told me that he believed they would be concluded by the end of the month, I cannot tell you whether or not, he told me that 3rd, or whether he told me that 4th. Q. Alright, just one-what do you recall telling the Union on the 18th, about the status of the sell negotiations? A. I told them it has progressed further. There is also the testimony of John McCune, a vice president of the Respondent . He said that after the Janu- ary 7 notice was posted the Respondent received an "ex- traordinary order" because of a customer demand. But McCune also said : "The intent of the purchase agree- ment was to recognize that, for a finite period of time, Sheridan would still be a supplier of ours, and to set the frame work for disengagement." So at no time, were you ever informed that, as a result of the sale, this relationship would be severed as of the date of the sale? There was never any plans to sever that relationship as of the date of the sale. 1 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q. Now you mentioned some changes that took place after-I guess after March 1 , that changed the time frames set forth in General Counsel's 3 some- what? A. No. Q. Were there any such changes that altered this time-these timeframes, that you know of before March 1? A. Nothing material, no sir.... I can't think of anything. Q. When you say "not line material ," was there something, nevertheless, that you were thinking of? A. Well, the reason I say that is, you noticed the January 7th memorandum was time-phased in a couple of months period of time. That was done by intent, because I mentioned previously , we never know the real demands of our customers, new cus- tomers, and that, and so forth. So April could be May; May could be June; that type of thing. With such admissions that the managers knew, in Janu- ary, that work would have to continue into May and later, Johnson's repeated statements to the union officers that all jobs would be gone by the end of February was clearly a lie. Robert Ingle, the personnel director, also admitted the Company knew it would continue doing business at this location. "We viewed it for a period of time, which we didn't know what that period of time was, that some business would continue to be produced there , yes, and there would be a need for some people to produce that work." To the extent that his testimony was intended to con- tradict the employees who said they were told work would be ended by the beginning of March , he was not a credible witness. Despite the clear evidence on the record as a whole that it was the Respondent which pro- posed, and urged a severance agreement in place of con- tractual renewal, the witness said, "I really don't know" who first came up with the idea. And, consistent with the stipulated exhibit received in evidence showing that a year later a number of employ- ees were still doing the work previously performed by the AIW employees, is the testimony of Michalkiewicz. She testified, without contradiction, that 3 or 4 days after she had signed the severance agreement, while talking to Trula Gibson, a supervisor over the AIW employees, Gibson spoke as follows : "She came up and she said she was sorry about our people losing our jobs, and then she says, 'You know, I called Keith Walters, who is the plant manager, and told him how many people that I would need for shipping, and he says, Well, I'll guarantee you, it sure in hell ain't going to be AIW workers." Q. Okay, did she say anything else to you? A. She told me, at that time, in her opinion, there was at least two more years of work there. Neither Gibson nor Walters appeared as witnesses. There is more in this record to support the complaint allegation that the Respondent deceived its employees into accepting severance for the purpose of removing the union as representative of its employees . In January 1986 Michalkiewicz was elected president of the AIW Local 442. She testified, again without contradiction, that after her election Plant Manager Walters called her into his office "and asked me if we could talk, one on one .. . he proceeded to tell me that he understood that I wasn't very well liked by my people. He couldn't understand why I was reelected, and he said that corporate had a bad taste in their mouth because I was reelected. They thought I was very illiterate, and if I didn't keep my mouth shut, there would be other work reduction." "He just keep repeating that I ruined the community and I was going to harm the people that was working there if I didn't keep my mouth shut." Eddie Smith, also an employee, testified that back in October 1985, while he was in layoff status, Johnson Jackson, his immediate supervisor , told him "if I could talk to people in 442 into voting the union out, that it would offer me a job at Sheridan's." This testimony also stands uncontradicted. The Respondent's attitude towards the AIW is thus re- vealed as longstanding. When the union members as a group decided to accept the Company's severance proposal, Michalkiewicz first refused to sign it, and made her opposition known openly. On February 24 she had a conversation with Robert Ingle, who told her, as she testified, "What are you trying to pull here? Are you trying to lose your people, their money, their severance, the whole bit, by not signing the agreement? And he said, `Further more,' he said, 'how would you like to be charged with unfair labor practice?"' Ingle was present at the hearing but he did not contradict this testimony. I find that by the per- sonnel director's threat to file NLRB charges against the Union's president, • .the Respondent violated Section 8(a)(1) of the Act. In conclusion I find that by deliberately misleading the Union, and its members, into signing the severance agreement, and giving up their jobs, for the purpose of discharging the union member employees, the Respond- ent violated Section 8(a)(3) of the Act. Carpenters Local 1476 (Lake Charles AGC), 270 NLRB 1432 (1984). Cf. Pennsylvania Energy Corp., 274 NLRB 1153 (1985). That same conduct-deliberate falsification of its plans for the future, while engaged in the collective-bargaining proc- ess with the established majority representative of its em- ployees-constituted bad-faith bargaining and was a vio- lation of Section 8(a)(5) of the Act. THE REMEDY The Respondent must be ordered to cease and desist from again committing the unfair labor practices found above. It must cease violating Section 8(a)(1) by threat- ening to file labor board charges against employees in re- taliation for engaging in union activity . It must cease de- ceiving employees into leaving their jobs for the purpose of removing their union as collective-bargaining agent among its employee complement. The device was used to effectuate the discharge of all these employees . There- fore the Respondent must be ordered to cease and desist from hereafter discharging employees because of the prounion activity. SHELLER-GLOBE CORP. 123 What bargaining took place in 1987 was not in good faith, as the statute demands. Therefore the Respondent must cease and desist from refusing to bargain with the union in good faith, and, affirmatively, it must in good faith bargain in the future with that union. The severance agreement signed in February 1987 is therefore invalid. The employees affected are entitled to reinstatement to their old jobs, with backpay given to them to make them whole for what losses they suffered as a consequence of the Respondent's past unfair labor practices. The complaint lists 43 employees who were illegally discharged on February 28, 1987. All of these are enti- tled to backpay. With the number of employees illegally used in their place having been reduced in the interven- ing period, there is no way of knowing exactly how much the discharged employee would have earned. An equitable formula in this situation will be to figure out, from the Respondent's records, how many hours of work was performed by any employees doing the work within the appropriate bargaining unit and distributing it equally among the 43 employees discharged in February 1987. The amounts to be paid for such work shall be based upon the hourly rates set out in the union contract in effect when the unfair labor practices took place, includ- ing the cash value of all fringe benefits there detailed. Cf. Iron Workers Local 373 (Building Contractors), 232 NLRB 504, 519 (1977). As offsets against these amounts shall be the interim earnings of the discharged employees plus what amounts were paid to them under the sever- ance agreement. All replacements hired after February 28, 1987, shall be released to make place for the discharged employees. If there are not enough jobs for all the returning employ- ees, any of them not hired when the Respondent com- plies with this order, shall be placed on a recall list. Finally, the Respondent must be ordered to bargain with the Union in good faith now. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section I, above, occurring in connection with the operations of the Respondent described in section I, have a close, inti- mate, and a substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. By telling employees it would file National Labor Relations Board charges against them if they persisted in the union activities, the Respondent violated Section 8(a)(1) of the Act. 2. By discharging employees on February 28, 1987, in order to discourage their union activities, the Respond- ent violated Section 8(a)(3) and (1) of the Act. 3. By refusing to bargain in good faith with the Union, the Respondent violated Section 8(a)(5) and (1) of the Act. 4. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]