Allied Mills, Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1975

218 N.L.R.B. 281 (N.L.R.B. 1975)

ALLIED MILLS, INC. 281
Allied Mills, Inc. and America Federation of Grain
Millers, Local 110, AFL-CIO. Case 3-CA-5516
June 6, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On July 31, 1974, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief,' and Charging Party and
General Counsel filed briefs in answer thereto.
Charging Party filed cross-exceptions and a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated ' its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
]Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Allied Mills, Inc.,
Buffalo and Alexander, New York, it officers, agents,
successors, and assigns, shall take the action set forth
in said recommended Order.
1 Respondent has requested oral argument . This request is hereby denied
as the record, the exceptions, and the briefs adequately present the issues
and the positions of the parties.
'z The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevtnt evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Iru•, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
1, 1974, and ending May 8, 1974. The original charge was
filed by the American Federation of Grain Millers, Local
110, AFL-CIO (the Charging Party or Union), on
December 28, 1973, and the complaint issued on March 5,
1974. Allied Mills, Inc. (the Company or Respondent),
duly filed its answer within the time extended by the
Regional Office of the National Labor Relations Board, on
April 1, 1974.
The principal issue raised by the pleadings is whether the
Respondent violated Section 8(a)(1), (3), and (5) of the Act
when, on December 31, 1973,1 it closed its Buffalo plant,
and failed and refused to transfer any of the employees
represented by the Union to a newly constructed, similar
operation at Alexander, New York, located approximately
30 miles away.
Upon the entire record,2 including my observation of the
demeanor of the witnesses,3 and the briefs filed by counsel
for all parties, I make the following:
FINDINGS OF FACT
1. COMMERCE
Respondent, an Indiana corporation with its principal
office and place of business in Chicago, Illinois, is, and has
been at all times material, engaged in the business of
manufacture, sale, and distribution of livestock and poultry
feeds, and related products. In the course and conduct of
its operations, it maintains production facilities in many
states of the United States including the States of New
York and Pennsylvania; however, the only plants involved
in this proceeding are those located in Buffalo, New York
(the Buffalo plant), until December 31, 1973, and in
Alexander, New York (the Alexander plant), thereafter.
During the past year, Respondent, in the course and
conduct of its operations, manufactured, sold, and distri-
buted at said Buffalo and/or Alexander plants products
valued in excess of $50,000 of which products valued in
excess of $50,000 were shipped from said plants directly to
states of the United States other than the State of New
York.
I find, as Respondent admits, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: This pro-
ceeding under Section 10(b) of the National Labor
Relations Act, as amended (the Act), was tried before me
at Buffalo, New York, on 6 hearing days commencing May
1 All dates hereinafter refer to the calendar year 1973 unless otherwise
indicated.
2 Subsequent to the close of the hearing, counsel for General Counsel
and counsel for Respondent each filed motions to correct transcript of
218 NLRB No. 47
III. THE LABOR ORGANIZATION INVOLVED
The Union, which admits into membership employees of
the Respondent, and exists for the purpose, in whole or in
part, of dealing with employers concerning conditions of
employment, is a labor organization within the meaning of
Section 2(5) of the Act.
proceedings . These motions should be, and hereby are, granted.
3 Cf. Bishop and Malco Inc., d/bla Walker's, 159 NLRB 1159, 1161
(1966).
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent operated the Buffalo plant for many
years prior to 1973. The record establishes that it had
recognized the Union as the collective-bargaining repre-
sentative of its production and maintenance employees
since 1938, and had entered into successive collective-
bargaining agreements with the Union since that time. The
last collective-bargaining agreement between the parties
was entered into on July 2, 1971, and was scheduled,
according to its terms, to remain in force until June 30,
1974. At some point in time (not clearly defined in the
record), the management of Respondent determined that
the Buffalo plant was too old, inefficient, and uneconomic
for profitable operations, and determined to close it. It also
determined (presumably at about the same time) to
construct two new facilities in western New York to
substitute for and carry on the manufacturing and
distribution functions of the Buffalo plant at the Alexander
plant and also a plant which was constructed in Sanger-
field, New York, which is approximately 150 miles from
Buffalo. When the Union first learned of the Company's
plants, primarily through newspaper clippings (see, e.g.,
G.C. Exh. 17),4 it sought to meet with the Company for the
purpose of discussing what effect such plans would have on
the Buffalo operation. The Company agreed, and such
meetings were held on July 5, October 12, and November
13. At the meetings, the Company was willing to, and'did,
discuss with the union representatives the impact of the
impending closure of the Buffalo plant on the production
and maintenance employees represented by the Union,
within the parameters of the existing collective-bargaining
agreement . However, the Company adamantly refused to
discuss the transfer of the Buffalo employees of the
Alexander plant .5 The Company contends that it was
always willing to consider applications for employment of
the Buffalo employees at the Alexander plant as new
employees, but that no such applications were ever filed. It
concedes that it did not desire to move or transfer the
Buffalo employees to Alexander in a group, and have them
carry along with them the collective-bargaining agreement
which was then existing between the Company and the
Union.
The Alexander plant commenced operations. around the
first of November, and was staffed (as far as production
and maintenance functions are concerned) with newly
hired employees from the Alexander area.
B. The Issues
1. Did the Union, by agreeing to the severance clause
in the collective-bargaining agreement, waive its right to
4 Although the Company, in prior collective- bargaining negotiations,
continually held out the threat of closure of the Buffalo plant to the Union
as a lever to secure concessions, it never did directly notify the Union of its
plans to construct the new facilities until after the Union learned about it
from other sources.
5 There is no clause in the collective-bargaining agreement relating to
transfers of employees from one of the Company's plants to another.
6 The employee complement at Buffalo was , at the time, approximately
50; Respondent did not contemplate that it would hire more than
complain concerning the Company's refusal to transfer the
Buffalo plant employees to Alexander.
2. If not, did the Company bargain in good faith with
the Union respecting the effect on the Buffalo employees
of the Company's closure of the Buffalo plant.
3. Did the Company's failure and refusal to transfer the
Buffalo employees to the Alexander plant constitute
discrimination to discourage membership in the Union, in
violation of Section 8(a)(3).
4. Did certain statements in conversations between
Acting Plant Superintendent Starkey and several employ-
ees of the Buffalo plant, in September, constitute interfer-
ence, restraint, and coercion of employees in violation of
Section 8(a)(1) of the Act.
C. The Negotiating Sessions
As previously indicated, union representatives became
aware of the construction of the Company's new plants in
western New York in the latter part of 1972. However, it
was not until the following April that they finally directed
a written communication in the form of a letter to George
Bard, manager of the labor relations department of the
Company, requesting a meeting for the purpose of
discussing the` effect of such new plants on the Buffalo
operation. After some exchange of correspondence, a
meeting was finally agreed upon to take place in Buffalo on
July 5. The meeting was held at a local restaurant during
the dinner hour, and the following persons participated:
For the Union were Peter Rybka, a local officer as well as
an international vice-president, and John Stoczynski,
business representative of the local; for the Company were
Bard and Jack Williams, manager of the Buffalo plant. It
was at that meeting that the union representatives learned,
for the first time, that the Respondent intended to close the
Buffalo plant sometime in the latter part of 1973, although
a specific date was not mentioned at that time . Discussion
then turned to the effect of such closure on the employ-
ment opportunities for the Buffalo employees. The Union
was naturally desirous of obtaining continued employment
for as many of its members as desired to transfer to the
employer's new facility at Alexander. However, when it
became known that the new plant, being more automated
and computerized, would not have' as high' an employee
complement as Buffalo, it became obvious that the
Company could not physically employ all of the Buffalo
employees assuming that all of them desired to transfers
Under the circumstances, Rybka proposed to the
Respondent what is referred to in the record as the "Agway
Plan." 7 The essential elements of this plan, which Rybka
had recently negotiated with the Agway Company, were
that the Company would be able to choose, without regard
to seniority, the number of employees which it would
require at the new facility and to pay them at a lower per
approximately half that number at Alexander.
The collective-bargaining agreement between the parties at the Buffalo
plant contains a union-security clause; accordingly, all the production and
maintenance employees at the Buffalo plant were members of the Union.
7 It derives its name from an agreement arrived at between the Union
and the Agway Company, a -feedstuff manufacturer and competitor of the
Respondent . The Agway Company had also maintained a facility in
Buffalo, but had recently built a new plant in Batavia , New York, also
located approximately 30 miles from Buffalo.
ALLIED MILLS, INC. 283
hour rate than was required in the existing agreement, such
hourly rate to be in accord with that prevailing in the new
areas
The Company declined Rybka's suggestion. As Bard
testified, "I rejected the concept of picking people up in the
Buffalo plant and setting [them] down in Alexander." He
also testified that although he regarded Rybka's offer as a
proposal, he chose not to make a counterproposal either at
that time or at any time during the subsequent negotia-
tions.
Other subjects were discussed such as vacations, sever-
ance, retirement, and hospitalization. The Company
indicated its willingness to comply with the collective-
bargaining agreement as respects these matters, and that
Bard would counsel individually with the employees
respecting their individual desires as to these subjects.
Rybka acquiesced,9 and Stoczynski proposed that the
Company give a 90-day closing notice to employees. Such
notice would allow any employee- to be able to quit within
the 90 days without loss of severance pay, assuming the
Company was able to release him from his duties. The
Company tentatively agreed to this proposal, and this was
apparently the only agreement reached between the parties
at that session (other than, of course, the stipulation that
the Company could counsel individually with the employ-
ees respecting early retirement, severance pay, etc.)
On July 20, Bard dispatched the letter to Rybka in which
he confirmed the Company's agreement respecting the 90-
day notice provision, and also included a "spread sheet"
which delineated the approximate severance and retire-
ment benefits that the employees would be entitled to at
the time of the closing of the plant, or in subsequent years
when they attained retirement age. Bard reaffirmed his
intention to sit down with each employee and explain the
benefits following the Company's announcement of the
plant closure.
On or about August 10, the Union posted a notice to its
members on the bulletin board of the Buffalo plant. Such
notice advised the employees that "the future operations of
Allied Mills is very uncertain," and that contact had been
had with company officials to clarify the future status of
the Company in Buffalo. It further advised the employees
of benefits to which they would be entitled in the event of
the plant closing, and of the 90-day closing notice. Finally,
it advised the employees that the Union hoped to discuss
with the Company, "in the very near future, opportunities
for employees at the Buffalo plant to transfer to the
Company's new plant at Alexander, New York." In that
connection, the Union caused to be placed on the bulletin
board a yellow sheet of paper (from a legal pad) which was
E According to the record, this would be 40 cents per hour under the
prevailing Buffalo rate.
s Consequently, neither the General Counsel nor the Union contend that
the Company violated Sec. 8(a)(5) through Bard's subsequent meetings with
individual employees outside the presence of a union representative.
10 This was apparently a moral obligation only since the written
contract, 'which was present at the hearing although not received in
evidence, contained no such obligation.
Buffalo is located in Ene County.
11 The, foregoing findings are based upon the credited testimony of
Rylbka, Wantuck, and Keough, some of which was not denied by the
management representatives. The latter did deny that either of them made
any statement to the effect that they did not want a union in Alexander I
written on it: "Men For New Plant Sign Below." This list
was maintained for several months subsequently, as
discussed more fully below.
In a letter dated September 10, the union representatives
requested another meeting with the Company, particularly
with respect to the issue of transfers. In that letter it was
pointed out that the union representatives were aware of
the fact that the "nonunion office employees at the Buffalo
plant are being given this opportunity [of transfer] by the
Company. We feel that we are entitled to the same
consideration ." After some exchange of correspondence, a
meeting date of October 12 was agreed upon.
The October 12 meeting was held in a local hotel in
Buffalo, and commenced on the morning of that day.
Present for the Union were Rybka and two employees
from the plant who were union stewards: Dan Keough and
John Wantuck; for the Company were Bard, Williams, and
Robert Gamlin, the plant superintendent. Although the
record reflects that other matters such as vacations,
severance, hospitalization, etc., were discussed at the
meeting, the principal issue was that of transfer of Buffalo
employees to Alexander. The Company's position re-
mained adamant that there would be no transfers. One of
the reasons for this position, as stated by Respondent's
representatives, was that the Company had an obligation
to Genesee County, i.e., that since the people in that
county built the plant, the Company felt an obligation to
hire persons in that locality.10 In addition, Williams stated
that the employees in the Buffalo plant were too union
oriented, and militant, and pointed to a couple of wildcat
strikes which had apparently occurred in the past. Finally,
Williams adverted to the fact that the Alexander plant
contained new machinery some of which it was felt that the
Buffalo plant employees were not capable of operating."
Nevertheless, Rybka presented to the company representa-
tives a list of names of those employees who had signed the
list for the purpose of indicating the desire to transfer to
the Alexander plant. The list contained approximately 18
names and concededly was not complete in that it did not
contain any employees who worked on the night shift.
Rybka said that these names would be submitted shortly.
Bard's reply was that the Union could submit such a list
but that it would not do any good.12
On the morning of November 13, in the locker room of
the Buffalo plant, Bard met with some of the older
employees who were eligible for retirement, and explained
to them the advantages and disadvantages of early
retirement as opposed to termination. That afternoon there
was a meeting between the Company and the Union at a
local hotel. Present at that meeting were the same
have some doubt that a statement in that blunt form was made; however, it
might very well have been reasonably inferred from Williams ' statements
respecting the militancy of the Buffalo employees.
12 This finding is based, again, on the credited testimony of Wantuck
and Keough, both of whom impressed me as honest witnesses . Bard testified
that he did not think that he said anything to the effect that it would not do
any good to submit a list.
At that meeting the company representatives claimed that they advised
the union representatives that the employees at Buffalo were privileged to
file applications for employment at Alexander . This was denied by Rybka I
deem it unnecessary to resolve this particular credibility conflict for the
purpose of resolving the ultimate issue, and will assume the veracity of the
company representatives ' testimony on this point.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participants as at the October 12 meeting with the addition
of John Stoczynski.13 This was apparently a xather short
meeting since the Company declined to change its position
on any item since the October 12 meeting. With respect to
transfers, the Company gave the same reasons as previous-
ly, i.e., that the plant and the machinery were new and the
people were too old to be trained to operate it. Also, they
were too "union oriented," which would result in problems
such as shutdowns, and it was suggested that if the union
representatives wanted a union in Alexander, that they
should go ahead and try to organize it.14
On November 20, Rybka and Stoczynski dispatched a
letter to Plant Manager Williams attaching a list of
employees "who are, interested in an opportunity for
transfer to your Alexander plant." The list of names was in
the same handwriting, in that it was copied by one of the
shop stewards from the original list which was posted on
the plant bulletin board, as aforesaid.15 The Company
never responded to that letter.
In November, the Company commenced placing "help
wanted" ads in local papers seeking personnel for
employment at the Alexander plant. The ads stated that
interested personnel could contact either the Buffalo plant
or the plant superintendent in Alexander (see G. C. Exh.
10).
On December 27, Bard was at the Buffalo plant for the
purpose of securing commitments from the Buffalo
employees with respect to early retirement or severance
pay. Rybka, who apparently had been advised previously
that Bard would be at the plant that day, was also there for
the purpose of advising the employees not to sign any
waiver of their rights. Bard advised Rybka that he had not
received the list of employees who desired to transfer to
Alexander. Rybka proceeded to get a photo copy of the list
(G. C. Exh. 11), and hand delivered it to Bard at that time.
He also sent a letter to Williams naming three additional
employees (G. C. Exh. 12). No response was made by the
Company to the receipt of these lists.
As previously noted, the Buffalo plant closed on
December 31.16
D. Alleged Interference, Restraint, and Coercion
The complaint alleges that in September and October,
the Respondent violated Section 8(a)(1) of the Act when
acting plant superintendent Jack Starkey told employees
that "Respondent would not transfer or accept for
employment at its Alexander plant any employees of the
Buffalo plant who were members of or affiliated with the
Union." In support of such allegation, Danny Keough, an
employee and shop steward, testified that in September he
was in Starkey's office, and had a conversation with him.
The time of the conversation was subsequent to the
Respondent's posting of a notice to employees on or about
September 26, announcing the closing of the Buffalo plant
as of December 31. Keough questioned Starkey as to what
the latter intended to do when the plant closed. Starkey
responded that he was going to be the superintendent of
the Alexander plant. Keough inquired, "Are they-going to
take any men down there?" Starkey responded that as long
as he was superintendent there would never be a union if
he could help it - that he did not want a union because he
did not want "anybody dictating to me." 17
John Wantuck testified that in September he had a
conversation with Starkey in the latter's office wherein
Starkey announced that he would be the new superinten-
dent in Alexander. Wantuck opined that Starkey might
return to his old employment. Starkey responded that there
was no union at his prior employment and that if Buffalo
employees worked at a place where there was no union,
"half of you guys would have been fired. The only thing
that saves you guys is by having a union here .... "
In October, Wantuck had another conversation with
Starkey in which he advised the latter that some of the men
wanted "transfer applications" for the Alexander plant, to
which Starkey replied that he did not have them at the
Buffalo plant and that the men would have to come to
Alexander to get them. As Wantuck was walking away,
Starkey added, "you guys know I'm a big prick but I will
be a bigger prick when you guys come out to fill out the
applications." 18
On one occasion in October or November, Starkey was
dissatisfied with the work from the millwrights, and told
Sherrill Schrader (in the presence of Steven Szczesek) that
if it was not for the Union, he (Starkey) would "get rid of
the whole crew of them." Starkey further observed that if
the Company had a union in the new plant, he did not
want any part of it because he just "did not believe in
unions."
13 Stoczynski was not present at the October 12, meeting because of
illness.
14 Credited testimony of Stoczynski. There was also some discussion of
the possibility of securing a tax advantage for employees by paying the
severance pay in 1974 rather than 1973. However, after some investigation,
it was apparently concluded that this would not be feasible.
15 See G. C. Exh. 9, and compare with G. C. Exh. 11.
16 There is some disputed testimony in the record with respect as to
whether the Company, in December , made available to the Buffalo
employees applications for employment at Alexander . Gamlin testified that
on one day in early December he announced at a lunch break to the
employees that he would be glad to give any employees that wanted one an
application which, upon completion , should be taken to the Alexander plant
and given to Superintendent Starkey No employee took an application
Several employees , witnesses for the General Counsel , testified that they
were unaware of such offering. However, I will assume, for the purpose of
resolution of the ultimate issue , the credibility of Gamhn on this point.
Gamhn also testified that on one occasion in December , a management
representative from a Buffalo foundry company, apparently having learned
of the Respondent 's decision to close the Buffalo plant, requested
permission to solicit the Buffalo employees for employment at the foundry.
This permission was granted and on one occasion a representative of the
foundry came into the plant and distributed applications for employment to
the employees.
17 Employee Steven Szczesek walked into Starkey's office during the
conversation and heard the latter state that there would be no union men at
the Alexander plant because he did not "want anything to do with Unions. "
is Chester Chmielowiec overheard a portion of this conversation He
testified that he heard Wantuck ask Starkey for applications and the latter
said that "they are not taking anybody," and that if anyone wanted an
application he would have to go to Batavia (Alexander) to get one.
Starkey denied saying that he would be a bigger prick at Alexander. I
deem it unnecessary to resolve this particular credibility point since even if
Starkey made such a statement , it would not seem necessarily related to
interference with union or concerted activities. However, I do credit the
employees' testimony as respects to the effect that the Company was not
"taking anybody" to Alexander. In addition to demeanor considerations, I
note that this position is essentially consistent with the position taken by the
Respondent in the negotiations.
ALLIED MILLS, INC. 285
In his testimony, Starkey denied that he ever said to any
person, that as long as he was superintendent at Alexander
there would never be a union there. However, I am unable
to believe that the employees fabricated the antiunion
statements attributable to Starkey. Some of these state-
ments are purely matters of opinion and therefore
protected under Section 8(c) of the Act. However, such
statements as (1) the Company was not taking any of the
employees to Alexander, and (2) there would never be a
union in Alexander, clearly overstepped the bounds of
opinion, and, in my view, were statements calculated to
intimidate the employees respecting their adherence to the
Union should they also desire continued employment with
the Company at Alexander. As such, they constituted
inference, restraint, and coercion of employee rights under
Section 7 of the Act, in violation of Section 8(a)(1). I so
find.
E. Operations at Alexander Versus Those at
Buffalo
There is substantial testimony in the record respecting a
comparison of the operations of the Buffalo and Alexander
plants and of the job functions of the employees therein.
Such evidence may be summarized briefly as follows:
Both plants are "feed mills." That is to say, raw
materials, primarily in the form of grains, are shipped by
truck or rail to the mill, mostly in bulk form. Some of these
raw materials require no processing at all, and are merely
unloaded and placed in bins in the warehouse; other raw
materials have to be ground by mills. Respondent
employed (and employs) employees at both plants who
perform these unloading, weighing, and warehousing
functions. Such employees utilize substantially similar
equipment such as "bobcats" and forklift trucks.19
Grains which require mixing with other ingredients are
processed by machinery which, at both plants, is controlled
by a panel board operator. That is, the product is mixed by
a prearranged formula; at Buffalo, the process was
described as "semi-automatic" while at Alexander, the
process is more sophisticated and computerized. Neverthe-
less, it is controlled by a panel board under the supervision
of a panel board operator.
Following this process, the product either goes to the
bulk bins if it is to be loaded as bulk, or is sent to the pellet
mills if it is to be manufactured in the form of pellets and
packaged. In either case, it is then stored and subsequently
shipped to customers, either by truck or rail, or the
customers pick up the product at the Respondent's loading
dock in their own vehicles. At both plants, the Respondent
hired (or hires) employees to perform the warehousing and
shipping functions.
At both plants, Respondent hired (or hires) employees
who perform maintenance functions. At Buffalo these
functions were delineated by job classifications such as
milllwright, oiler, electrician, etc. At Alexander these
functions are grouped together under a heading "mainte-
nance," and one employee may perform more than one
function. Indeed, at Alexander, the Respondent has
19 Indeed,' some of this equipment was transfer, red from the Buffalo plant
to Alexander at the closing of the former operation.
20 As of April 1, 1974, there were approximately 21 or 22 employees at
grouped its employees into four major categories (ware-
housemen, packaging, panel board operator, and mainte-
nance) whereas at Buffalo the job classifications were more
numerous and particularized (see Exh. B attached to the
collective-bargaining agreement, G. C. Exh. 2).
In short,, the same raw materials that,formerly came to
Buffalo now come to Alexander; the same product is made
there, and substantially the same customers are serviced
from there. Due to the more efficient and sophisticated
machinery at Alexander, the production process is per-
formed more efficiently with substantially fewer employ-
ees. When asked what the difference was between the
production functions in the two plants, Plant Manager
Williams replied, "Basically it has to do with numbers and
multiple jobs." That is to say that, as previously explained,
one employee at Alexander, due to the more advanced
machinery, can perform more jobs in different places in the
plant, and the same is true of maintenance functions.20
F. Analysis and Concluding Findings
1. The waiver theory
As previously indicated, the Respondent contends that
by agreeing to a severance clause in the current collective-
bargaining agreement, the Union waived all rights to
complain concerning the Respondent's failure and refusal
to transfer Buffalo employees to Alexander. I find this
contention to be unsupported in fact and in law.
The severance clause was first agreed upon and inserted
in the 1965 agreement between the parties. Section 4 of
article XVI states as follows:
In the event all production of the Company's Buffalo,
New York plant is permanently discontinued during
the term of this agreement, then and in that event each
employee with five or more years of seniority who is
laid off after July 1, 1965 and prior to July 1, 1968, shall
receive 10 hours pay at his base rate for each year of
seniority that he had accrued on the date of his layoff,
but not to exceed 200 hours pay. Any employee
receiving pay under this paragraph 16.4 shall forfeit all
recall rights.
In 1968 the foregoing clause was improved to the extent
that an employee with the same number of years of
seniority, shall receive 40 hours pay at his base rate for each
year of seniority.... but not to exceed 800 hours pay. No
further improvement was made in the 1971 negotiations
between the parties, and the clause is contained in the
current collective-bargaining agreement in the same
language as above-quoted with the exception of the
additional hours, as aforesaid.
Respondent argues that the severance clause "waives
continued employment or `recall rights' in the event of
plant closure." (Resp. brief, p. 115.) This is not exactly
accurate since the clause only provides severance pay "in
the event all production of the Company's' Buffalo, New
York plant is permanently discontinued during the term of
Alexander; in the fall of 1973, there were approximately 45 to 50 production
and maintenance employees at Buffalo.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this agreement "it is true that all production at the Buffalo
plant was permanently discontinued, but the production of
product was continued in substantially the same manner at
Alexander. The clause does not indicate on its face - nor
is there extrinsic evidence - that the parties contemplated
a removal of the production facilities instead of a
permanent discontinuance thereof.21 Moreover, if Respon-
dent actually believed the clause operated as a waiver, it
would seem that it would have so contended at one or
more of the meetings between company and union in 1973,
or in some of the correspondence relating to the subject
matter. But there is not a scintilla of evidence of any such
contention. In short, the argument appears to be an
afterthought.
Finally, as Respondent recognizes in its brief, the law is
well established that "a waiver of a statutory right is not to
be lightly inferred but must be `clear and unmistaka-
ble.' "22 It is abundantly clear from the facts in this case
that the Union, neither by its words nor conduct, indicated
a waiver of its statutory rights to bargain concerning the
transfer of employees from the Buffalo to the Alexander
plant.23
2. The alleged refusal to bargain
The complaint alleges that at all times since July 5,
Respondent has refused to negotiate with the Union in
good faith over the transfer of the employees from the
Buffalo plant to Alexander. Respondent denies this
allegation, and asserts that even though it was not required
to because of the "waiver" issue discussed above, neverthe-
less it did meet with the Union when requested to do so,
discussed all relevant issues, made some concessions, and,
in general, fulfilled its obligation under Section 8(a)(5) of
the Act. For the reasons cited below, in the light of
applicable legal precedent, I do not agree that the evidence
sustains the Respondent's position.
It should be noted at the outset that this is not a case
involving an alleged unlawful decision to remove a plant
for discriminatory reasons . The record shows that the
Company and Union have existed together in a continuous
contractual relationship at the Buffalo plant for a long
number of, years, and that the decision to remove the
production facilities from Buffalo to Alexander was based
predominately on economic considerations 24 Neverthe-
less, there is substantial evidence in the record which
convinces me, and I therefore find, that the Respondent
utilized the move to rid itself of the Union as the collective-
bargaining representative of the employees in the bargain-
ing unit 25 -In making such finding I have considered the
following factors, no one of which is determinative, but
21 Respondent was allowed to, and did, make an offer of proof as to
what transpired at the negotiations in 1965. There is nothing in such offer of
proof to indicate that the parties contemplated removal of production
facilities from Buffalo to another location.
22 New York Mirror, 151 NLRB 834,839 (1965); see also NLRB. v. Otis
Elevator Company, 208 F.2d 176, 179 (C.A. 2, 1953).
23 That the issue of transfers is a proper subject of effects bargaining is
clear. See General Motors Corporation, GMC Truck & Coach Division, 191
NLRB 951, fn. 20 (1971).
Nothing in the recent case of Valley Ford Sales, Inc, d/bla Friendly Ford,
211 NLRB 834 (1974), detracts from this conclusion. There, a majority of
the Board deferred to an arbitrator's award which held that the Union, by
its conduct, had waived its right to object to the termination of an incentive
which considered together reflect a determination by the
Respondent to operate the Alexander plant unfettered by
the presence of the Union - at least, not until it organized
the newly-hired employees from the Alexander area.
1. Respondent concededly refused to discuss transfer
of the Buffalo employees at any of the meetings with the
Union in 1973. Labor Relations Director Bard testified as
follows with respect to that point:
Q. Let me ask you this, is that how you deal
generally with this Local that they have to ask you a
question and then you answer?
A. No I made proposals to them.
Q. Any proposals with respect to transferring
people?
A. No. Their proposal was the same all the way
through and I rejected that.
Q. I am asking you, did you make any proposals to
them, with respect to transferring people?
A. No we offered applications that the employees
could put in for employment at Alexander and no one
ever did.
Q. Your view then was that these employees would
be hired as new employees?
A. That's correct, they would receive their sever-
ance pay at Buffalo and be hired as new employees.
Q. If they were hired?
A. Yes.
This testimony, taken with Bard's earlier testimony that
he "chose not to make a counterproposal" and that he
"rejected the concept of picking people up in the Buffalo
plant and setting them down in Alexander," make it
abundantly clear that on the principal point of the
negotiations, the Company refused to budge from its
predetermined policy of refusing to transfer to Alexander
any of the Buffalo employees represented by the Union.26
Moreover, this is not a case where the Union was insisting
upon a transfer of all employees or, indeed, upon any
specific precondition of transfers. The evidence shows that
it got no further than proposing a plan similar to the
Agway agreement as a broach of the subject matter.
However, the Company's representative testified that he
assumed that Rybka would insist upon transferring the
Buffalo employees "in bulk" or "in a group" with the
contract wrapped around them. But the Company failed to
test such assumption by making any proposals concerning
individual transfers, either with or without the seniority, or
other rights or privileges.27 This case is therefore distin-
guishable from the Pierce Governor Company case (164
NLRB 97 (1967)) heavily relied upon by Respondent. In
plan.
24 These considerations include the age of the Buffalo plant and the
machinery therein; opprobrious taxing and environmental regulations
imposed by governmental authorities in Buffalo which resulted in a high
overhead for that plant; plus slow and inefficient service by transportation
carriers available to the Respondent in Buffalo.
25 See Jack Lewis and Joe Levitan d/bla California Footwear Company,
114 NLRB 765,767 (1955).
26 This is in sharp contrast to its policy discussed more fully mfrs, of
offering to transfer the unorganized, clerical employees and supervisors.
27 That the Company never intended to transfer any of the Buffalo
production and maintenance employees to Alexander, either "in bulk" or
individually, is attested by employees Steven Szczesek and Steven Nowadly.
ALLIED MILLS, INC. 287
that case the Board found that the transfer issue was "fully
explored" by the parties at two bargaining sessions and
that the Respondent proposed that it would consider for
transfer each Anderson employee who appeared at the
plant, with seniority preserved for those hired. In the
instant case, the transfer issue was never "fully explored,"
and the Respondent never budged from its position that
the only way that a Buffalo employee could become hired
at Alexander would be to apply at Alexander as a new
employee with no seniority or other privileges continuing
from his employment at Buffalo.
It is also significant that unlike the situation in Pierce
Governor where the Board found that the Respondent
during the negotiations "explained its own position, and
made counterproposals as well as some concessions," 28
Respondent here made practically none. Thus the only
"concession" made outside the confines of the contract
was to give the employees a 90-day notice prior to closure
within which they could find another job without sacrific-
ing or forfeiting their severance pay, provided the Compa-
ny could release them. The other "concessions" were
merely to give employees options within the limitations of
the contract as to whether they desired (1) early retirement
rather severance pay, (2) pay in lieu of 1973 vacation, and
(3) the granting to one individual the privilege to be laid off
out of seniority. In Pierce Governor, the Board found that
"Respondent was willing from the outset to discuss the
subject of the effects of the move on Anderson employees
in their transfer to Upland . . . and . . . the parties
engaged in intensive and hard bargaining at a series of
meetings and through an exchange of correspondence for a
3-month period." 29 Nothing comparable exists in this case.
Here the Respondent, from the outset, simply refused to
discuss the matter of the transfer of the Buffalo employees
to Alexander.30
Indeed, the situation here is strikingly similar to that in
Cooper Thermometer Company.31 There it was found after
an analysis of the bargaining sessions, that respondent at
ne, time since the inception of the meetings:
departed from its basic position, in substance, that its
obligation to bargain as to the effects of its move on the
Pequabuck employees was limited to determining the
rights of the employees deriving from within the four
corners of the existing contract, as modified.15
15 In Respondent's view, this would apparently include the extent of
the employees' entitlement to vacation and insurance coverage benefits
under the existing 1962 contract, as amended, and also severance pay.32
Citing Cooper Thermometer, the Trial Examiner in Fraser
& Johnston stated:
Beth testified that in their individual conversations with George Bard
concerning early retirement, they asked him about a transfer to Alexander.
Bard replied that there would be no transfers - that "the company policy is
not to take anybody from here .. .
28 Id., 101.
29 Id., 101.
30 This is not to suggest of course, that the law requires a party to "make
a concession or yield a position fairly maintained [citing cases]. On the
other hand, the parties are obligated to do more than merely go through the
formalities of negotiation . There must be a 'serious intent to adjust
The Board defined the bargaining obligation in those
circumstances as requiring that the Union be afforded
an opportunity to bargain with respect to the contem-
plated move as it affected the employees, such as the
placement of the employees in positions at the new
plant.33
The Trial Examiner also commented upon the Board's
decision in Westinghouse Electric Corporation, 174 NLRB
636 (1969), where the Board had occasion to define and
distinguish "the Cooper Thermometer type" of plant
removal case as
Concerned with a loss of jobs caused by the partial or
complete termination of an operation at one location
and its relocation at another. In such situations, the
employees at the old plant are directly affected by the
relocation, and an Employer is required to negotiate not
only respecting the shut-down, but also the bases and
conditions on which employees affected by the termination
may transfer to the new location and thus continue to be
employed. [Emphasis supplied.]
Clearly, the foregoing precedents require a Respondent
in a plant removal case such as the instant one, to bargain
concerning the transfer of employees from the old plant to
the new one. Certainly this obligation was not fulfilled by
merely stating that the Buffalo employees could present
themselves in Alexander, along with everyone else, for hire
as new employees (particularly after relating that the
Buffalo employees were too old, too union oriented, too
militant, and, anyway, the Company had an obligation to
Genessee County). The language of the Court of Appeals
for the First Circuit seems apt in these circumstances:
It is difficult to believe that the Company with a
straight face and in good faith could have supposed
that this proposal had the slightest chance of accept-
ance by a self-respecting union, or even that it might
advance the negotiations by affording a basis of
discussion; rather, it looks more like a stalling tactic by
a party bent upon maintaining the pretense of
bargaining.34
2. While there is no evidence of a written commitment
by Respondent to give preference to persons from the
Alexander area in hiring, the record reflects that Respon-
dent clearly felt a moral obligation to do so in view of the
fact that the people of Genessee County raised the money
to build the plant. Thus the situation here is comparable to
that in Fraser & Johnston Company35 where the Board
(including the dissenting member) noted:
differences and to reach an acceptable common ground ,' NLRB. V.
Insurance Agents Union, 361 U.S. 477, 485 (1960)." See Continental Insurance
Company, et at v. NLRB., 495 F.2d 44 (C.A. 2, 1974).
31 160 NLRB 1902 (1966), enfd. in pertinent part 376 F.2d 684 (CA. 2,
1967).
32 Id, 1912.
33 Fraser & Johnston Company, 189 NLRB 142, 149 (1971).
34 N.LRB. v. Reed & Prince Mfg., Co., 205 F.2d 131 (C.A. 1, 1953).
35 189 NLRB 142.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The violation here arose out of Respondent's eagerness
to do business with the IBEW in its new location and
the resulting premature recognition of that Union.
Respondent apparently believed that it had a commit-
ment to the;IBEW which it was free to implement and,
in reliance thereon, denied to the [other Unions] any
effective participation in discussions relating to the
employment of their constituents in the [new] plant.
Here, because of the moral obligation felt by Respon-
dent, it denied to the Union any "effective participation in
discussions relating to the employment of its constituents
in the Alexander plant." Also, like Fraser & Johnston, the
employees here "were experienced and skilled in the
necessary, work tasks and they could have worked in San
Lorenzo-only 25 miles from San Francisco-without
moving their homes." as The record here reflects a similar
distance between the old and new plants, and also that
most employees -drive to work from outlying areas in and
around Buffalo, and could have apparently just as easily
driven to Alexander. Similarly indicative of the probabili-
ties is the fact that Respondent's supervisory hierarchy
transfered substantially intact from the Buffalo plant.37
3. The record reflects that during the fall of 1973,
Respondent, in marked contrast to its policy respecting the
unit employees, freely offered to transfer all of its office
employees and supervisors to Alexander. Indeed, Respon-
dent did not refer to the process as a "transfer" but rather
as a "continuation of their same job."38
The Respondent offered in explanation of the foregoing
the suggestion that these jobs were not altered at the new
plant whereas the jobs of the unit employees were.
However, it has been shown above that the jobs of the unit
employees were not so changed that the Buffalo employees
could not, with a minimum of training, perform the tasks at
the Alexander plant-mdeed, some of them were exactly
the same, such as operation of the bobcat, forklift operator,
etc. Moreover, the record shows that the panel board
operator in Buffalo (Pete Sherry) was a very capable
employee who received a letter of commendation from the
company in 1973 with respect to the work he had been
performing. Yet the company preferred to hire an
untrained employee in Alexander to perform that job
which was described as probably the most sophisticated
position in the plant 39 Furthermore, Respondent offered
to stipulate that in many instances the persons employed in
Alexander had less experience in a feed mill than the
employees who were already employed at the Buffalo plant
and that many of the employees in the Buffalo plant could
become qualified for the work that was being performed at
Alexander. Finally, counsel for Respondent conceded at
the hearing that "we have never contended that the
employees in Buffalo could not conceivably perform the
jobs over at Alexander."
3s Id, 143.
37 See Cooper Thermometer Company, 160 NLRB 1902, 1916, fn. 24.
33 Of the 13 salaried office employees offered transfers, 7 supervisory
employees accepted; of the 8 salaried plant production staff offered
transfers , 5 accepted.
39 This, in the face of testimony by Superintendent Starkey that he would
"naturally prefer" more experienced employees to those who knew nothing
about the commodity with which they were dealing.
In the light of all of the foregoing, it seems somewhat
inconsistent for Respondent to contend that one of the
reasons for failure to transfer the unit employees as
distinguished from the nonunit employees and supervisors
was because the work tasks were significantly different 40
4. Although the decisions to close the Buffalo plant and
build the Alexander plant were made by top management,
and the record reflects a long history of contractual
relations between the Company and Union, the antiunion
remarks made by Respondent's agents at the 1973
meetings between the Respondent and Union, and the
8(a)(1) threats made by the acting superintendent cannot
be overlooked in assessing the Respondent's motivation.
That is to say that while, the record does not reflect that the
move was dictated by union considerations, it also cannot
be gainsaid that when viewed in context'with other factors
such as the moral obligation to Genessee County, the
Respondent utilized the move as a device to rid itself of the
Union which it viewed as an albatross around its
production neck. Another significant factor reflecting
Respondent's desire not to hire Buffalo employees is the
hurdles which it imposed upon them even if they desired to
apply for jobs at Alexander as new employees (such as the
requirement to go to Alexander to view the premises prior
to hire).
3. The alleged discrimination
The complaint alleges that Respondent's action, of
refusing to transfer the Buffalo employees to Alexander
during the latter part of 1973, and of terminating said
employees on or about December 28, and thereafter failing
to transfer said employees to the Alexander plant, was all
because of the employees' union or concerted activities,
and was done for the purpose of discouraging membership
in the Union in violation of Section 8(a)(3) of the Act.
As to this issue, it is my view that, as previously
expressed, while the move was dictated primarily because
of economic considerations, the Respondent utilized it as a
vehicle to rid itself of the Union as the representative of the
production and maintenance employees.
It is, of course, well established that if union membership
and activity constituted only a portion of the reason for
employee termination, a violation of the Act resulted even
though other, legitimate reasons existed.41 Moreover, it
would seem that the refusal to allow the Buffalo employees
the opportunity to transfer to Alexander under some
circumstances constitutes conduct which would appropri-
ately fall within the ambit of the "inherently destructive of
employee interest" conduct adverted to by the Supreme
Court in N.L R.B. v. Great Dane Trailers, Inc.42 That is to
say, the Court in Great Dane, after fording that a violation
of Section 8(a)(3) normally turns on whether discriminato-
ry conduct was motivated by an antiunion purpose, said:
40 Parenthetically, it would seem that the plant supervisors would also
have to learn the intricacies of the new machinery as much as the rank-and-
file personnel.
41 N.LR B v. Great Eastern Color Lithographic Corporation, 309 F.2d
352 (C.A. 2, 1962); N.LR.B. v. Elias Brothers Restaurants, Inc., 496 F.2d
1165 (C.A. 6, 1974).
42 388 U.S. 26 (1967).
ALLIED MILLS, INC. 289
Some conduct, however, is so "inherently destructive of
employee interests" that it may be deemed proscribed
without need for proof of an underlying improper
motive. Labor Board v. Brown, supra, at 287; American
Ship Building Co. v. Labor Board supra, at 311. That is,
some conduct carries with it "unavoidable conse-
quences which the employer not only foresaw but
which he must have intended" and thus bears "its own
indicia of intent." Labor Board v. Erie Resistor Corp.,
supra at 228, 231. If the conduct in question falls within
this "inherently destructive" category, the employer has
the burden of explaining away, justifying or character-
izing "his actions as something different than they
appear on their face," and if he fails "an unfair labor
practice charge is made out." Id., at 228. And even if
the employer does come forward with counter explana-
tions for his conduct in this situation, the Board may
nevertheless draw an inference of improper motive
from the conduct itself and exercise its duty to strike
the proper balance between the asserted business
justifications and the invasion of employee rights in
light of the Act and its policy.43
The Court went on to hold that "If it can reasonably be
concluded that the Employer's discriminatory conduct was
`inherently destructive' of important employee rights, no
proof' of an antiunion motivation is needed and the Board
can fmd an unfair labor practice even if an Employer
introduces evidence that the conduct was motivated by
business considerations." 44 (Emphasis supplied.) The
Court of Appeals for the Second Circuit in Cooper
Thermometer, pointed out: "The most important interest of
workers is in working." 45 Clearly, the actions of Respon-
dent here in cutting off that important interest constituted
conduct which was "inherently destructive" of important
employee rights, in violation of Section 8(a)(3). I so fmd.
PV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and 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 thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Id., 33-34.
Id., 34.
45 376 F.2d 684, 688.
46 See Fraser & Johnston Company, 189 NLRB 142; Cooper Thermometer
Company, 160 NLRB 1902, 1916, enforcement denied on this point 376 F.2d
684-688. The Respondent contends that the collective-bargaining agree-
ment should not be applied to Alexander because , inter alia, the language in
the recognition clause refers to employees employed at the Company's
Buff alo plant However, I have found that the Alexander plant is a
continuation of the Buffalo operation, and that words "Buffalo, New York,
Having found that Respondent violated Section 8(a)(5)
of the Act in particular respects, I shall recommend that
Respondent, upon request, bargain collectively with the
Union concerning the effects upon the represented
employees of the plant relocation from Buffalo to Alexan-
der, particularly with respect to the transfer of such
employees. Since the collective-bargaining agreement
between the Respondent and the Union was in effect at the
time the unfair labor practices occurred, it shall be ordered
that the Respondent continue to recognize and bargain
collectively with the Union as the exclusive bargaining
representative of the employees in the appropriate unit at
the Alexander plant, unless the parties mutually agreed to
do otherwise.46
I find present in the instant case substantially the same
bases which the Board in Fraser & Johnston utilized in
grounding such an order: (1) Respondent's operation at
Alexander is a continuation of the operations of its former
plant in Buffalo; (2) the Union 'has represented the
employees at Buffalo since 1938, and the present contract
was not due to terminate until June 30, 1974; (3) the
relocated plant, while not within the metropolitan area of
Buffalo, is within commuting distance for the Buffalo
employees; (4) The Alexander plant is neither a merger nor
consolidation with previous operations of Respondent; (5)
approximately half of the employees indicated or requested
transfer and continued representation by the Union, and
were denied such transfers as the result of the Respon-
dent's unfair labor practices.
Having found that in effectuating the move from Buffalo
to Alexander in the manner hereinabove set forth,
Respondent discriminated with respect to the hire or
tenure of employment of the Buffalo employees in the
appropriate unit, I shall recommend the normal remedy of
reinstatement and backpay to some of these employees. It
is necessary to tailor the normal remedy in view of: (1) The
fact that the employee complement at the Alexander plant
is not contemplated to exceed over approximately half of
the normal complement of employees at Buffalo; and (2)
only approximately one-half of the employees at Buffalo
indicated a desire to be transferred 47 Under these
circumstances, I shall recommend that Respondent offer
the Buffalo employees who indicated a desire to transfer
immediate reinstatement at the Alexander plant to their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
displacing other employees, if necessary. The Respondent
shall be required to make whole each of the aforemen-
tioned employees for backpay from the date of their
termination to the date of Respondent's offer of reemploy-
ment, less net earnings computed in the manner estab-
lished by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest at the rate of 6 percent per
plant" in that agreement are merely descriptive and not words of
geographical limitation . See The Rattling Corporation, 203 NLRB 355 (1973).
47 The record is somewhat ambiguous as to the identity of those
employees who, at all times, indicated a desire to transfer. That is to say,
some of the employees apparently changed their minds as reflected by the
erasmg out of their name on the list (see G.C. Exh. 11). Also, one employee
(Joseph Podohc) signed the list twice, but his time was stricken when the
union steward copied the list (see list attached to G.C. Exh. 9). These are
matters to be determined at the compliance stage of this proceeding . Fraser
& Johnston Company, 189 NLRB 142, 152, fn. 56.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
annum, as set forth in his Plumbing & Heating Co., 138
NLRB 716 (1962) 48
As for those employees who did not indicate a desire to
transfer, but may have been deterred from doing so by the
Respondent's illegal conduct, it will be recommended that
Respondent place such employees on a preferential hiring
list, to be given an opportunity by Respondent for
employment prior to the employment of any other person.
Since the record does not identify those employees, I will
regard this as a matter to be determined at the compliance
stage of this proceeding.49
As the Respondent no longer operates the Buffalo plant,
I shall recommend that the Respondent be required to post
the attached notice to employees at the Alexander plant for
the usual period. In addition, since the posting of such
notices alone will not be sufficient to reach all of the
former employees at the Buffalo plant, I shall recommend
that the Respondent be required to mail a copy of the
attached notice to each employee who was on the
Respondent's payroll as of September 26, 1973 (the date of
Respondent's notice to employees of its decision to
relocate), at his or her last known address, as disclosed by
Respondent records, or as may be amplified by the Union.
Further, I shall recommend that the Board reserve to itself
the right to amend or modify its order to provide for events
which have not been anticipated 50
Respondent's unfair labor practices indicate a general
attitude of opposition to the purposes of the Act;
accordingly, a broad cease-and-desist order is necessary
and appropriate to effectuate the policies of the Act.
Upon the foregoing findings of fact, and upon the entire
record in this case , I make the following:
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
meaning of Section 2(5) of the Act.
3.. The following constitutes an appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees of the
Respondent at its Buffalo plant, and/or Alexander
plant, excepting office and clerical employees, salaried
supervisory employees, laboratory employees, foremen,
buyers, and salesmen.
4. At all times material, the Union has been the
majority representative for purposes of collective bargain-
ing with the Respondent in the aforesaid unit.
48 Also to be deducted are any emoluments which the employee may
have received from the Company such as severence pay, or retirement
benefits.
In Cooper Thermometer Company v. N.L.RB., 376 F.2d 684, the Court of
Appeals for the Second Circuit agreed that the Board was "justified in
requiring backpay in such cases for workers who would have transferred if
proper bargaining had occurred. But the question again is backpay at what
rate?" (Id, 691). In the particular circumstances of this case, where the
prevailing wage rate in Alexander may be expected to be lower than that
prevailing in Buffalo, and where, indeed, the Union offered the company a
wage rate of 40 cents per hour lower than the Buffalo rate for the transferred
employees under the Agway Plan, it would seem appropriate that backpay
5. By refusing since July 5, 1973, to bargain collectively
in good faith with the Union as the exclusive representative
of the employees in the appropriate unit, concerning the
transfer of the employees from the Buffalo plant to the
Alexander plant, Respondent has engaged, in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
6. By refusing to transfer employees in the appropriate
unit from the Buffalo plant to the Alexander plant, and by
terminating said employees on or about December 31,
1973, in the manner set forth above, Respondent discrimi-
nated with respect to the -hire or tenure of employment of
said employees, to discourage membership in the Union, in
violation of Section 8(a)(3) and (1) of the Act.
7. By the foregoing conduct, and by threatening
employees that Respondent would not transfer employees
from the Buffalo plant to Alexander because of their
membership in or activities on behalf of the Union,
Respondent interfered with, restrained, and coerced
employees in the exercise of rights guaranteed in Section 7
of the Act, in violation of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 51
ORDER
Allied Mills,, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with American
Federation of Grain Millers, Local 110, AFL-CIO,
concerning the transfer of employees from the Buffalo,
New York, plant, to the Alexander, New York, plant.
(b) Terminating or otherwise discriminating against its
employees because of their union membership and activi-
ties.
(c) Threatening employees that Respondent would not
transfer them to the Alexander plant because of their
membership in or activities on behalf of the Union.
(d) In any other manner, interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named Union as the exclusive bargaining representative of
its employees in the appropriate unit, concerning the
should be computed at that rate rather than the Buffalo rate since the
"function of the Board's remedy is to restore the situation, as nearly as
possible, to that which would have obtained but for" the illegal action. (Id,
691)
49 Cooper Thermometer Company, 160 NLRB 1902, 1917.
59 See Fraser & Johnston Company, 189 NLRB 142, 152-153.
51 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
ALLIED MILLS, INC.
effects on the employees of the move from the Buffalo
plant to the Alexander plant.
(b) Offer immediate and full reinstatement to their
former positions, of those Buffalo plant employees who
desired transfer to Alexander, without prejudice to their
seniority or other rights and privileges, dismissing, if
necessary, any persons hired to replace them, and make
them whole for any loss of pay, in the manner set forth in
"The Remedy" section of this Decision. Buffalo plant
employees desiring transfer but not able to be reinstated
because of the limitations of the Alexander plant, as
described above, shall be placed upon a preferential hiring
list by Respondent, in the manner set forth in the section of
this Decision entitled "The Remedy."
(c) Continue to recognize and, upon request, bargain
collectively with the above-named Union as the exclusive
bargaining representative of the employees in the appropri-
ate unit, at the Alexander, New York, plant, pursuant to
the collective-bargaining agreement between the parties
which was in force and effect at the Buffalo plant at the
time of the relocation to Alexander, unless the parties
mutually agree to do otherwise.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amounts of backpay due and the
rights of employment under the terms of this order.
(e) Post at its Alexander, New York, plant, copies of the
attached notice marked "Appendix,"52 and forthwith mail
to the last known address of each employee on its payroll
on and subsequent to September 26, 1973, a copy of such
notice. Copies of said notice, on forms provided by the
Regional Director for Region 3, after being duly signed by
Respondent, shall be posted immediately by receipt
thereof, in conspicuous places, and be maintained for a
period of 60 consecutive days. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or
covered by any other materials.
(f) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of this Order what steps
Respondent has taken to comply herewith.
52 in the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted pursuant
to a Judgment of the United States Court of Appealls Enforcing an Order of
the National Labor Relations Board."
APPENDIX
291
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice telling our employees what we have been
ordered to do and not to do in the future.
WE WILL NOT refuse to bargain collectively in good
faith with American Federation of Grain Millers, Local
110, AFL-CIO, the exclusive representative, concern-
ing the effects of the move from the Buffalo, New York,
plant to the Alexander, New York, plant, on the
employees in the bargaining unit described below.
WE WILL NOT terminate or refuse to transfer
employees who desire transfer to the Alexander, New
York, plant, to discourage membership in or activities
on behalf of the above-named Union.
WE WILL NOT threaten employees that we will not
transfer or accept for employment at the Alexander
plant any employees of the Buffalo plant who were
members of or affiliated with the above-named Union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed in the National Labor Relations Act,
as amended.
WE wiLL continue to recognize and, upon request,
bargain collectively with the above-named Union as
the exclusive bargaining representative of the employ-
ees in the appropriate unit. The bargaining unit is:
All production and maintenance employees of
Allied Mills, Inc., employed at its Buffalo plant
and/or Alexander plant, excepting office and
clerical employees, salaried supervisory employ-
ees, laboratory employees, foremen, buyers, and
salesmen.
WE WILL offer (in the manner and to the extent
described in the decision of the Board) those employees
terminated as a result of our unlawful action immediate
and full reinstatement to their former or substantially
equivalent positions, at the Alexander, New York,
plant, without prejudice to their , seniority or other
rights and privileges and we will make them whole for
any loss of pay suffered as a result of their termination,
including interest.
ALLIED MILLS, INC.