Cooper Thermometer Co.

National Labor Relations Board - Board Decisions

Oct 13, 1966

160 N.L.R.B. 1902 (N.L.R.B. 1966)

1902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees with discharge in the event of their
participation in any strike in a manner constituting interference , restraint, or
coercion in violation of Section 8(a)(1) of the Act.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations , to join or assist United Glass & Ceramic Workers of North
America, AFL-CIO or any other labor organization , to bargain collectively
through representatives of theii own choosing , to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
WE WILL NOT refuse to recognize and to bargain collectively with United
Glass & Ceramic Workers of North America, AFL-CIO as the exclusive bar-
gaining representative of our employees in the following unit:
All production and maintenance employees of Everwarm Corporation
and Vinylex Corporation at our Knoxville, Tennessee, establishment,
excluding office clerical employees , guards, professional employees,
and supervisors , as defined in the Labor Management Relations Act
of 1947, as amended.
WE WILL upon request of United Glass & Ceramic Workers of North
America, AFL-CIO, bargain collectively with it as the exclusive representative
of our employees in the aforementioned appropriate unit and , if an under-
standing is reached , embody such understanding in a signed agreement.
VINYLEX CORPORATION AND EVERWARM CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta , Georgia 30323, Tele-
phone 526-5741.
Cooper Thermometer Company and United Electrical , Radio and
Machine Workers of America, Local 233. Case 1-CA-4970.
October 13, 1966
DECISION AND ORDER
On Marcli 21, 1966, Trial Examiner Harry H. Buskin issued his
Decision in the above-entitled proceeding, funding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel and the Respondent filed
exceptions to the Decision and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
'The Respondent has requested oral argument . This request is hereby denied because
the record , the exceptions , and the briefs adequately present the issues and the positions
of the parties.
160 NLRB No. 150.
COOPER THERMOMETER COMPANY 1903
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Harry H. Kuskin at Meriden,
Connecticut, on October 20, 1965, and at Stamford, Connecticut, on December 7,
1965; it was the outgrowth of a charge and an amended charge filed on April 15
and July 20, 1965, respectively, and a complaint, which was thereafter amended at
the hearing, issued on July 30, 1965.1 The questions presented are whether Cooper
Thermometer Company, herein called Respondent, has violated Section 8(a)(5)
and (1) of the Act (1) by refusing to bargain collectively with United Electrical,
Radio and Machine Workers of America, Local 233, herein called the Union, con-
cerning the effects on the production and maintenance employees represented by the
Union at Respondent's Pequabuck, Connecticut, plant of the removal by Respondent
of this plant to Middlefield, Connecticut, about 27 miles away; and (2) by refusing
to recognize and bargain with the Union as the collective-bargaining representative
of its production and maintenance employees at the Middlefield plant. The complaint
does not allege, and according to a stipulation of the parties, the General Counsel
does not contend, that the decision to relocate was discriminatorily motivated.2
Respondent admits the status of the Union as a labor organization, that it is engaged
in commerce within the Act's meaning, that on May 17, it moved its principal office
and place of business from Pequabuck, Connecticut, to Middlefield, Connecticut,
and that at the Middlefield plant, as formerly at the Pequabuck plant, it is engaged
in the manufacture, sale, and distribution of thermometers and related products. It
denies that it engaged in any unfair labor practices as alleged in the complaint and
that it had any duty to bargain with the Union. In the alternative, it asserts that if
such a duty did exist, it did not fail to bargain with the Union as alleged; it also
denies that the Union is or has been the exclusive bargaining representative of the
production and maintenance employees at the Pequabuck plant, or at the Middle-
field plant since the move to Middlefield on May 17.
Upon the entire record, including my observation of the witnesses, after due con-
sideration of the briefs of the General Counsel and of Respondent, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
For more than 25 years prior to May 17, 1965, Respondent maintained its prin-
cipal office and place of business in Pequabuck, Connecticut. Thereafter, it moved
its principal office and place of business to Middlefield, Connecticut. At both loca-
tions, Respondent has been engaged in the manufacture, sale, and distribution of
thermometers and related products. The complaint alleges, and Respondent admits,
that during the preceding 12-month period, which period is representative of all
times material herein, Respondent shipped goods valued in excess of $50,000 directly
to points outside Connecticut and received goods valued in excess of $50,000
directly from outside Connecticut.
I find, upon the foregoing, that Respondent is engaged in commerce within the
meaning of the Act.
'Unless otherwise indicated, all dates mentioned hereinafter are in 1965.
2Although the Union joined in this stipuulation, it asserted at the hearing that it was
claiming such discriminatory motivation. Under all the circumstances, including the fact
that consideration of this issue is barred by Section 10(b) of the Act, I find that this
issue is not before me.
1904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The Union is, as Respondent also admits , a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The parties have stipulated to the following: Collective bargaining began at the
Pequabuck, Connecticut, plant in 1938 At that time, the Union was recognized as
the bargaining representative as the result of a card check. When the present man-
agement took over the Pequabuck plant in 1960, the collective-bargaining rela-
tionship continued and contracts were executed between Respondent and the Union
in 1960, 1961, and 1962 The 1962 contract was for an initial period ending April 21,
1964, and was subject to annual automatic renewals, absent appropriate notice to
terminate, modify, or amend the agreement. In 1964, the Union struck the Pequa-
buck plant. Thereafter, the parties entered into a strike settlement agreement to
continue , with modifications , the provisions of the 1962 agreement until May 17,
1965, subject to automatic renewal, absent notice.
B. Sequence of events
The critical happenings in this case had their genesis in Respondent 's decision
around September 1964 to move its Pequabuck plant to a new location There
ensued a number of meetings between Respondent and the Union , as well as three
meetings with a mediator or mediators , and considerable correspondence , all bear-
ing upon the move and its ramifications . The correspondence is in evidence in the
form of exhibits , as are the notes of the meetings , exclusive of those with mediators,
which notes were kept by Respondent ; it has been stipulated by the parties that the
introduction into evidence of these exhibits was to be "without further pioof as to
authenticity or materiality ." Unless specifically stated, the findings as to what hap-
pened at the meetings are predicated thereon.
The first meeting was called by Respondent and was held on September 11, 1964.
At this meeting , Respondent announced that it intended to move its plant to the
Durham-Middlefield area of Connecticut and handed out a printed notice of the
type that was being placed on company bulletin boards at the same time. In answer
to a series of questions by the Union, Respondent revealed that ( 1) it was moving
for many economic reasons, including the inadequacy of existing facilities and the
amount of money needed to correct existing facilities ; ( 2) although many sites are
available in the whole State , including ones in the present area , a suitable one is
very hard to find; (3) at the tentatively chosen site it is going to build a new plant
and expects to break ground at the end of the month and, depending on ground-
breaking time, the building would probably be ready either next spring or early sum-
mer; (4 ) in regard to offering jobs to present employees at the new location, it
would welcome all applicants and might offer jobs to such applicants , and that their
past experience would be considered the same as that of any applicant; and (5) in
regard to carrying over seniority from the old to the new plant it "[did ] not know,
at this point , final hiring plan-each individual [would] be considered on his own
merits; however, company [would ] attempt to relocate employees to other jobs in
the present area."
The next development was a letter from the Union to Respondent , dated Janu-
ary 7, asking for a meeting "for the purpose of discussing and negotiating on the
Pension Plan herewith enclosed" and another letter dated January 8 , requesting cer-
tain information "for the purpose of entering into negotiations on the terms and pro-
cedures for an orderly and equitable transition ." In addition to asking in this letter
for data to support Respondent 's claim that it was unfeasible and economically
unsound to improve and expand existing facilities , and for information as to when
machinery would be installed and manufacturing would start at the Middlefield plant,
the Union requested the following : ( 1) a list of all job classifications and occupa-
tions at the new location; (2) the number of employees to be required in each; (3)
the rate schedules to be applied ; and (4) the schedule of hours and any other con-
ditions of employment at the new location which it is contemplated will be at vari-
ance with existing conditions.
Respondent , by letter of January 25 , responded to both letters . As to the Union's
January 7 letter relating to pensions, Respondent replied that the Union had failed
to comply with the contractual requirement under "Section 7-Pensions" for union
COOPER THERMOMETER COMPANY 1905
submission "within 6 months" from May 15, 1964. As to the Union's January 8
letter, Respondent replied that it did not know what was meant by the language sug-
gesting a meeting "for the purpose of entering into negotiations on the terms and
procedures for an orderly and equitable transition ." Respondent added that, "we will,
however , meet with you at an early and mutually convenient date to discuss with
you all appropriate matters as may involve the orderly cessation of our manufactur-
ing operations at the Pequabuck plant. At such time , we may be in a better position
than we are at the present time to make available to you appropriate information
necessary to obtain this objective."
A letter from the Union followed on February 9, in which the Union sought to
explain the meaning of the language in its January 8 letter which was questioned by
Respondent, saying that, "in order for the Union to hold meaningful discussions"
with Respondent it needed the requested data which bear upon the asserted "[unfea-
sibility] to improve and expand existing facilities and upon the need to plan sys-
tematically for the transfer of present employees to the new location"; that Respond-
ent too narrowly defines the matters for negotiation; and "that more `is involved
than . the orderly cessation of our manufacturing operations at the Pequabuck
plant' " The Union also renewed its request for the data and asked for the com-
mencement of discussions as soon as possible. As to its January 7 request for nego-
tiations concerning a pension plan, the Union pointed out that "obviously" the
contract reference made by Respondent was intended by the parties to mean that
pension proposals would be submitted after 6 months of the date of the contract.
Respondent's letter in reply, of February 22, indicated a willingness to meet with
the union committee on March 1. A meeting was thereafter held at the appointed
date. Present for the Union were Nicholas Tomasetti, its business agent, and the
union committee consisting of Frank T. Gorman, J. Urban, president of the Union,
and B. Wyszinski and R. Tellier. Present for Respondent were Charles Wiedemann,
the chief negotiator for Respondent, Armand Audette, vice president in charge of
manufacturing, H. E. Jackson, secretary-treasurer, and R. Zbell, another company
official.
The above-mentioned meeting took the following course: The Union repeated its
position, as set forth in its February 9 letter, on the matter of pensions and on the
need for the data requested in its January 8 letter. It also asserted , inter alia, its con-
cern over what Respondent's position was "on moving present employees to [the]
new location," and stated its position to be that both the closing and the opening of
the new plant are matters for collective bargaining. Respondent disagreed that they
are all matters for collective bargaining , pointing out that Respondent was "not
transferring the operation but closing completely the Pequabuck plant." In seeking
apparently to make certain that the term "transfer," as used by it, was clearly under-
stood, the Union added, "transfer means to have present employees go down to [the]
new operation, with the same conditions, seniority and others. Is this open to col-
lective bargaining? Or will you give no information on this?" Respondent, however,
did not answer these queries directly. Instead, it indicated that it was ready to fur-
nish information relative to the Union's January 8 letter, and proceeded to detail
some of the economic considerations in making the move, including the limitations
of present facilities and the cost of making certain changes, even assuming feasibil-
ity. It refused to furnish certain cost data as to the new plant, claiming it was "con-
fidential"; it indicated that Respondent had been advised by the builders that the
building would be ready before May 17, and that thereafter plant equipment would
be moved and manufacturing would begin, and that the Middlefield plant was not a
case of immediate expansion but one of having the plant in an area where , unlike at
Pequabuck , it would have a place to expand.
At this meeting on March 1 , Respondent also refused to furnish requested infor-
mation as to lobs , and classification of employees at Middlefield , asserting that it
was "confidential"; it replied to the request as to rates by pointing out that "rates
would approximate 40¢ an hour less on an average basis"; and as to other differ-
ences, it stated there would be no piecework as at Pequabuck , but a day rate, and
that there would be "normal fringes equal to the area." In regard to whether
Respondent would give severance pay to Pequabuck employees who do not move
with the operation , Respondent answered that it had not given any thought to this
at this time . As to pensions, Respondent expressed a willingness to talk, but queried
whether the Union did not think it stupid to talk about the immediate effectiveness
of such a plan "since we will be closing this operation shortly."
This meeting also dealt with the matters of senoirity carryover, continuation of
insurance and severance pay, raised by the Union. Respondent stated, initially,
257-551-67-vol. 160-121
1906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that while it would supply applications to Pequabuck employees and give due con-
sideration to their ability to perform the job, and that "benefits don't transfer auto-
matically." 3 As to the matter of "fully paid-up insurance for those with insurance
who don't become employed at Middlefield or until they find employment else-
where," Respondent agreed to take this under consideration. As to the Union's sug-
gestion of severance pay, in lieu of pension, Respondent countered with the state-
ment that it had been thinking about a guaranteed vacation. The Union rejected this
alternative on the ground that the vacation pay was a company obligation under the
contract. Respondent thereupon expressed the view that severance pay was an
inducement to have people stay with a company until the plant is closed or they are
terminated and that so far as it was concerned the Pequabuck employees "have
worked for this company for only three years." This was in contrast to the Union's
claim of 33 years of such employment. When accused by the Union with refusing
to bargain on severance, Respondent said it would bargain; it could make no coun-
terproposal because the Union's proposals were not practical; and that if service as
an employee is a vested interest, as the Union said, then employees only have 3
years' interest with this Company.
It was at this meeting that the Union requested recognition at the Middlefield
plant. Respondent labeled this as "premature recognition"; in turn, the Union denied
this was premature, adding that, in its view, the Middlefield plant was the same
operation, that negotiations were requested to determine if Respondent would pro-
vide for the transfer of present employees, and that since Respondent is, saying that
this is not a transfer, "[the Union] will attempt to prevent [Respondent] from run-
ning away." Respondent, thereupon, asserted that the move was based on an inter-
mediate and long range plan with consideration given to economic and other factors.
At this point, the Union asserted that there was nothing further to discuss and it
would remain "open" to counterproposals from Respondent. Whereupon, the meet-
ing adjourned.
By notice dated March 2, posted in the plant, employees were advised that opera-
tions would cease on May 17 and applications for employment at Middlefield would
be available before April 22 and interviews would follow 4 It also asked employees
who were seeking employment elsewhere to contact their foreman if they wanted
help in locating a job.
Thereafter, on March 4, Respondent sent a letter to the Union indicating that it
found merit in the Union's request that consideration be given to providing paid-up
insurance for terminated employees and that it was willing to meet with the Union
on March 12 to explore this matter, as well as "an alternative possibly dealing with
vacation payments." The parties did meet, although on March 22 rather than
March 12, in consequence of this overture.
Before the March 22 meeting, the Union sent a letter dated March 8 to Respond-
ent notifying Respondent of its desire to amend the current collective-bargaining
agreement and offering to meet and confer for the purpose of negotiations. Corre-
spondingly, by letter dated March 15, Respondent advised the Union of its desire
to terminate the contractual agreements consisting of the 1962 agreement, as
amended and modified by the strike settlement agreement of May 15, 1964, and
asking for a conference. Under the latter agreement, such a meeting was to be held
no later than 55 days before May 17.
At the meeting of March 22, which was attended by the same individuals on both
sides, except for the substitution of H. Cahill for R. Tellier on behalf of the Union,
the subject slated for discussion was Respondent's counterproposal concerning insur-
ance coverage for employees, due to the cessation of operations at Pequabuck. How-
ever, Respondent opened the discussion with a proposal to pay the full amount of
vacation pay which would have been due each employee as of June 15 had he
worked up to that time,5 Respondent indicating that under its view of the vacation
provision of the contract in effect it would be entitled to reduce such vacation pay
by 31/3 hours for the 1 month by which active employment was curtailed because of
the plant's closing on May 17. The Union disagreed, saying that employees were
entitled to full vacation benefits, and insisted that the purpose of the meeting was to
3At a later point in the meeting, Respondent said that, "the accrual to employees of
any considerations is contractual."
' By notice dated April 14, which was also posted on company bulletin boards, employees
were further advised by Respondent that applications will be made available on April 19
and thereafter in Audette's office, and that completed applications should be returned to
his office as soon as possible. _ T.
5 The amount of vacation pay earned was computed as of June 15 under the, contract.
COOPER THERMOMETER COMPANY 1907
consider counterproposals on insurance. After some further discussion on vacation
benefits in which each side reiterated its position, this conversation digressed.6 There-
after, Respondent countered the Union's request for full health and life insurance
credit for retirees and others who are terminated by the move and for a tie-in with
its pension proposals. It offered to pay for the life and hospital and medical insur-
ance for employees, whether retirees or not, through June 30. The Union's response
to this was a demand that all present employees "be taken" to Middlefield with their
present rights and benefits as they are entitled to go with their jobs, and a reminder
to Respondent that it had not supplied information as requested concerning jobs,
wage rates, number of people, etc. Respondent disagreed with the Union's position,
asserting that it had furnished information as to the cessation of operations at Pequa-
buck and "[had] offered and will continue to offer the opportunity for employment
at the new plant to our present employees." The meeting closed with the Union's
assertion that Respondent had an obligation to bargain on the terms of a new con-
tract and with the setting of March 29 as the date of the next meeting.
The meeting on March 29 was attended by the same personnel as the meeting
heretofore. The subject for discussion was "General Contract Negotiation-Amend-
ment-Termination of Contract." The meeting opened with a distribution by the
Union of written proposals on amendments and modifications of the 1962 contract,
as altered by the strike settlement agreement.? The Union also requested of
Respondent profit and loss statements for 1964 and the first quarter of 1965, and
a list of employees with their ages, length of service, and average earnings. The
representatives of Respondent thereupon conferred among themselves and repoited
to the Union that Respondent would present written counterproposals. It was
agreed that the next meeting would be held on April 6, at which time both the
proposals and the counterproposals would be considered.
In the interim, by letters dated April 1 , Respondent sent notices pursuant to
Section 8(d)(3) of the Act to both the Federal and State mediation services.
The April 6 meeting was again attended by the same personnel. At the outset,
Respondent furnished the Union with its counterproposal8 and also with the ages,
seniority, and average straight time hourly earnings of the Pequabuck employees.
The Union said the information submitted was short of that requested, while
Respondent claimed this was in accord with the parties' understanding. After a
15-minute recess at the Union's request, the Union plied Respondent with a num-
ber of questions as to the counterproposal . Respondent answered that (1) it would
nor supply the financial information requested by the Union ; ( 2) it would not give
a general wage increase or any other benefits that cost money , although it was
not claiming it could not afford them ; ( 3) it would not negotiate a contract beyond
May 17; (4) there would be no carry-over to the Middlefield plant of seniority
or other benefits, although it would give present employees an opportunity for
employment there and that work performance at Pequabuck will be "one item";
(5) there would no longer be piecework , and "we don't have to tell you [what
the criteria will be] . . . we will talk to the individual . . . not the Union about
°During this digression, the Union claimed, and Respondent denied. that since Wiede-
mann had been "in the picture," there had been a great deal of disciimination against one
of the members of the union committee. The Union, through its representatives, said in
part, "You'll be sorry you have treated her this way, and you'll really pay for it " Respond-
ent's spokesman then replied, "Are you threatening us.': The Union's response was, "No,
telling you."
7 The proposals included a 2-year term ; a wage increase effective May 15 an additional
holiday with pay; more hospital benefits, $2 , 000 more of life insurance benefits, and a
funded pension plan, all at company expense; a plant removal provision, calling foi the
transfer of employees in order of seniority with all existing wages, hours, and other con-
ditions of employment , and with those not exercising the right of transfer to get severance
pay, as well as continued health and welfare coverage at company expense and if os er
age 60 with 15 years of service or more, an annuity policy for life at company expense
& The counterproposal stated, in effect, that the existing May 17 terminal date of the
contracts , the wages , holidays , and insurance were to remain unchanged , and that it
"declined to meet" the Union's demands as to pensions, employment continuity, and
severance, but that it would pay the premiums through the month of June for the existing
medical plan and for the $1,000 group life insurance plan for'those employees who were
terminated due to the "cessation of manufacturing operations " in Pequabuck , and further
that It would pay to employees on the seniority list on May 17 the full amount of vacation
pay which would have been due each such employee as of the following June 15 which,
by Respondent 's calculation , was equivalent to 3% hours of pay more than actually earned
1908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment requirements in Middlefield"; and (6) as to these negotiations "we
will not have this contract apply to Middlefield." It was at this meeting that the
Union told Respondent that it has been told by employees that "they desire employ-
ment opportunity" and that it was requesting this as their representative. Respond-
ent's response thereto was, "we will not hire through the Union." When the Union
pressed again for the requirements for job openings at Middlefield, Respondent
again refused to supply the Union with such requirements, insisting that it would
talk to applicants individually. At this point, the Union indicated that no progress
was being made because of the present attitude of Respondent and that if Respond-
ent had a change in attitude, to get in touch with the Union. Respondent replied,
"We are bargaining on [the] present contract," and it accused the Union of apply-
ing "Boulwareism in reverse." The meeting ended at the instance of the Union
after the Union explained that it was talking about, and Respondent denied that
it would bargain on the contract "as it applies to Middlefield"; the Union also
suggested that negotiations be reconvened when either party desires to contact
the other.
By letter, dated April 7, to Respondent, the Union accused Respondent of refus-
ing to bargain in good faith, detailing , inter alia, "the continued refusal to bargain
on any specific matters dealing with the transfer of operations and/or employees
from Pequabuck to Middlefield," attributing this to antiunion bias, expressing the
hope that this stemmed from "poor advise [sic]," and indicating the Union's
availability to resume meetings should Respondent so decide. A letter by Respond-
ent, in reply, dated April 13, denied the Union's charge of "anti-union bias" and
claimed that Respondent had never denied the Union requested data or information
.,as long as such was within the bounds of propriety" that the Union had shown
little or no inclination to be conciliatory, that it was the Union, not Respondent,
that broke off negotiations, and that it was ready to "bargain in good faith with
respect to such matters as may be proper, whenever you are so disposed."
On May 6, at the instigation of Respondent, the parties met separately with
Joseph Peraro, a mediator for the State board of mediation. Each party gave
Peraro its version of the bargaining to date, and, fortified with that version, Peraro
conferred with the other party. However, nothing was accomplished, each party
leaving with the information that the other had not changed its 'position.
The next communication between the parties was a letter from the Union dated
May 7, asking for a list of the names of (1) all employees who requested applica-
tions for employment at the Middlefield plant; (2) those who returned their appli-
cations; and (3) those who have been accepted for employment. By letter dated
May 11, Respondent replied that 42 employees had requested applications and 29
had filed them, that 21 interviews had been arranged and 8 interviews were still
to be arranged, that of the 21 above, only 14 employees appeared for their inter-
views and that, of these, 8 did not wish employment, 4 did, and 2 were, undecided.
The letter did not furnish the names of such employees, as the Union had
requested. The letter added that those who did not appear for an interview, as
scheduled, are to be contacted and given another opportunity. Respondent also set
forth therein its formulation of preconditions for employment in Middlefield, as
follows: good health and physical condition attested to by its physician, good
general character, ability or potential to do the job, and good record of regular
and punctual attendance. The letter concluded with "we will be pleased to discuss
these matters further with you at our next bargaining conference."
Thereafter, under cover of a letter dated May 15, the Union submitted to
Respondent 50 signed letters O from its members at the Pequabuck plant, "request-
ing a transfer to the new location of the Company at Middlefield with full recog-
nition of . . . seniority" acquired under all the collective-bargaining agreements
between the Union and the Company.
On May 18, also at the instigation of Respondent, the parties met with Peraro
and with Callahan, a mediator of the Federal Mediation and Conciliation Service.
For the benefit of Callahan, each party reviewed its version of the bargaining to
date and, fortified with that version, both conciliators consulted with the other party.
The only positive development of this meeting was Respondent's offer of severance,
payable on the basis of $5 for each year of service from the time the present own-
ership acquired the Pequabuck plant, up to a maximum of $20 per employee, con-
tingent upon a complete settlement , including the withdrawal of all the Union's
9 Respondent apparently received two more signed letters from Pequabuck plant
employees.
COOPER THERMOMETER COMPANY 1909
demands and the unfair labor practice charge. The Union's response to the media-,
tors was that it would have to consult its members. The meeting was adjourned sub-
ject to the call of the third meeting.
Respondent's next letter to the Union was dated May 20. In it, Respondent
enclosed the 50 employee letters. Respondent stated that it saw no purpose in
them as these employees had been represented for collective-bargaining purposes on
wages, hours, and conditions of employment; that it had met with the Union on
numerous occasions and negotiated on the right to transfer, inter alia; but there
had been a failure to reach agreement; and that its position on this demand had
not changed.
The third and last meeting with the same two mediators took place on June 2.
At first, each party met separately with them as heretofore 10 after this, the parties
met with them jointly. Present at the joint meeting were Jackson and Wiedmann
for Respondent, and Tomasetti, Gorman, Urban, Wyszynski, and Cahill for the
Union. According to Tomasetti, the Union stated its position to be that it was
demanding recognition at the Middlefield plant, that the operations and the prod-
ucts were the same, that the distance of about 25 miles between plants made no
difference as far as its right to recognition was concerned, and that the employees
had a right to transfer with their jobs as they had indicated they wished to do, and
that it was demanding the right to bargain concerning wages, etc., at the Middle-
field plant. Tomasetti testified further that Wiedemann, Respondent's spokesman,
denied any obligation to accord such recognition and refused to do so, and further
refused to offer employment to Pequabuck employees with their seniority intact or
other claimed rights, saying that Respondent was prepared to continue to interview
those who desire employment at the Middlefield plant as new employees on the
basis of (1) Respondent's determination as to their qualifications and the avail-
ability and need for the job sought and (2) at the rates of pay fixed for the Mid-
dlefield plant, which excluded piecework rates. Additionally, according to Toma-
setti, Respondent, through Wiedemann, repeated the offer of severance pay, made
through the mediators at the prior meeting, of $5 with a maximum of $20 per
employee, and Respondent also refused to supply the Union with any job classifi-
cation material at Middlefield "because they considered it not our business."
Wiedemann testified in a very general manner about this meeting, indicating only
that the Union made no counterproposal to Respondent's severance offer, that the
meeting ended, just like all meetings of this kind and "nothing was left," whereupon
the mediators said they would get in touch with the parties should either one want
another meeting or think there was a possibility of agreement.
As Tomasetti's testimony as to the June 2 meeting is uncontradicted and is, in
some part, corroborated by the testimony of Wiedemann, I credit it. There have
been no further meetings between Respondent and the Union for collective-
bargaining purposes.
C. Attendant circumstances of the move to Middlefield
The foregoing negotiations cannot be isolated from the details of the move of
the plant from Pequabuck to Middlefield. Accordingly, I shall now treat with (1) a
comparison of the Pequabuck plant with the Middlefield plant; (2) the distance
between plants and the accessibility by public -transportation or private vehicle;
and (3) the desires of the Pequabuck employees to transfer to the Pequabuck
plant.
As to the comparison between plants, the -parties stipulated that Respondent
"manufactures essentially the same products which it did in Pequabuck prior to
the relocation," viz, bimetallic thermometers of the commercial industrial type,
and also some liquid thermometers. Additionally, the new plant is using the same
basic machinery plus some replacements for scrapped machinery and some new
machinery; it also has the same top officials and the same foremen of these basic
departments: engineering, pressroom, toolroom, assembly, and shipping, trucking,
and receiving. As to the changes made, the following are established in the record:
Respondent no longer has leadgirls, having created subdepartments with super-
visors in charge. Thus, it made changes in the department of shipping, trucking,
and receiving by setting up three subdepartments called packing, stock, and general
stores, each under a supervisor; and it made a change in the assembly department
by setting up a subdepartment called printing, also under a supervisor. A further
10 The Union reported to the mediators that, at a meeting of the Union, the members.
saw no merit in Respondent's severance proposal.
1910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
change was the establishment of f-a new department called quality control under an
engineer who is part' of 'the engineering department. Also, by adding one more
employee in maintenance, Respondent now has two maintenance employees, mak-
ing maintenance 'a department. Furthermore, operationally, Respondent has estab-
lished a new flow pattern for work in the form of a horseshoe; "there is no see-
sawing, no repeating back to other departments," as before. The record shows also
that the size of the production and maintenance unit has remained about the same.
Thus, there were 81 in the unit in the Pequabuck plant during the payroll period
ending April 17, as contrasted with 40 in the unit at the Middlefield plant during
the payroll period ending June 19 and 75 or more during the payroll period ending
October 16.11 In sum, therefore, Respondent has the same basic departments plus
quality control, substantially the same supervisors and supervisory hierarchy, manu-
factures the same products, and has substantially the same number of employees in
the production and maintenance unit, as heretofore.
In respect to the distance between Pequabuck and Middlefield, Audette testified
that "on the most popular route that [he has] taken" the distance is approximately
271/2 miles, that the average travel time by automobile is about an hour, and that
using public transportation would require several bus changes and the travel time
would be 2 hours or-better not including the walking time, each way. Tomasetti
placed the distance-as 25 to 27 miles away, gave the average travel time by auto-
mobile at 40 to 45 minutes during the hours of 7 and 8 in the morning and
between 4:30_ and 5:30 in the afternoon, and testified that there is little public
transportation ' between the two- points and that he did not know of any direct
connection. There is also testimony by employee Frank T. Gorman, who lives in
Terryville, Connecticut. Terryville is about a mile away from Pequabuck so that
Gorman would have to go to Middlefield through Pequabuck. According to him,
it would take 50 to 55 minutes to travel the distance by automobile. In view of all
the foregoing, I conclude and find that the distance between plants is approximately
27 miles, that the approximate travel time by automobile is 45 minutes and that
travel by public transportation is so long and devious that it is not practicable.
There is considerable testimony in the record as to the desires of the Pequabuck
employees with respect to working in the Middlefield plant. It is the General
Counsel's position that the employees wanted to transfer, while Respondent main-
tains that there was an indication before the move that there would be very little
participation by Pequabuck employees in the move and, further, that its efforts to
recruit them, after the move, produced minimal results. In support of the General
Counsel's position, there is (1) testimony of Tomasetti that, in discussions he had
with the Pequabuck employees, they said they wanted to transfer, (2) formal
letters to Respondent to that effect, prepared by the Union and signed by 52
employees, all of whom wished to transfer; 12 and (3) the testimony of Gorman,
apparently introduced as illustrative of the treatment accorded those who did
apply. In this latter connection, Gorman testified that he was interviewed by Jack-
son, Respondent's treasurer, in response to the application which he filed in April,
that Jackson "left [him] hanging" as "he wouldn't tell [Gorman] what [Gorman's]
price would be," and that he, Gorman, turned the job down. Gorman testified
further that when he appeared for an interview in answer to Respondent's letter
in August inviting him to apply for a job, Audette told him that he would be paid
$1.58 per hour for a receiving clerk's job in contrast to his former pay of $2.50
(which he increased to $2.76 under the incentive rate) as a receiving clerk, stock
handler and that Audette also indicated to him that there were two other job
openings at less money- than he had earned formerly.13
11 Audette testified that 10 of these 75 or more employees are from the Pequabuck plant,
the rest of the Pequabuck plant employees having been discharged Of these 10, 8 trans-
ferred in the latter part of May and 2 transferred in August. It was stipulated that the
Middlefield plant opened shortly after May 17
12 The content of the letter was : "This is to advise you that I am requesting a transfer
to the new location of the company at Middlefield. Connecticut, with full recognition of
my seniority , which I acquired in your service at Pequabuck through the many collective
baigaining^,agreements signed between the Company and- Local 233, United, Electrical,
Radio and Machine Workers bf America (UE) " -' -
13 As already found, Respondent informed the Union at the March 1 meeting that
Durham-Middlefield is a lower-pay area and that rates would be approximately 40 cents
an hour less on an average basis. -
COOPER THERMOMETER COMPANY 1911
In support of Respondent's position that the employees were, in the main, not
interested in transferring, there is testimony by Audette that from discussions he
had with employees in the Pequabuck plant after the announcement of the move
was posted, from reports received from foremen and from "overall conversations,"
it was his feeling and he so reported to President Wallace that Respondent would
have "very very little participation in moving." Additionally, Respondent points to
its 83 letters in August to Pequabuck plant employees inviting them to apply by
telephone and reverse charges, as to which it asserts that 14 called in but were
not interested enough to come in for a personal interview, that 11 did appear for
a personal interview, of whom 2 were hired, and that in about 3 days these 2
left of their own accord because it was too far to travel. Respondent, in lieu of
meeting, on an employee-by-employee basis, the General Counsel's evidence in the
form of the above-mentioned 52 letters of application by employees at the Pequa-
buck plant, entered into a stipulation with the General Counsel and the repre-
sentative of the Union, as follows: "Other than this form letter, 28 of the 52
employees filed no application for employment as was supplied by the company
and 24 of those 52 filed applications. Of these 24, 21 were interviewed. Twenty
indicated they had no interest in employment at Middlefield and one employee was
hired."
It is apparent from all the foregoing that there was little desire on the part of
employees to deal with Respondent directly about transferring to Middlefield whereas
there was an expressed desire on the part of 52 employees to transfer on the terms
outlined in their application which was prepared by the Union. The rumors, grape-
vine, and conversations with employees by Audette and by Respondent's super-
visors as to these employees' desires for or against transferring are, of course, not
a substitute for the orderly presentation by their collective-bargaining representative
during the course of bargaining of the desires of its constituent employees in the
matter. And while distance must be considered a factor in such employee desires, I
am of the view that in this day and age, when it is commonplace to spend consider-
able time traveling to and from work, approximately 45 minutes of travel time
either way and approximately 27 miles of distance are not so unusual as to be
deemed an overriding factor in appraising the desires to transfer of the employees,
male or female, married or unmarried, at the Pequabuck plant. Significantly, approx-
imately 10 employees did transfer despite the lower wage scale and other changed
conditions unilaterally imposed by Respondent; and also, distance apparently created
no insurmountable obstacle to Respondent's supervisory hierarchy, virtually all of
whom transferred. In sum, therefore, I find that a majority of the employees at the
Pequabuck plant sought, through the Union, continuity of employment' at the -Mid-
dlefield plant and that it is not unreasonable to infer that these employees were pre-
pared to make the necessary travel adjustments in order to resume work at the Mid-
dlefield plant.
D. The allegations of the complaint and conclusions thereon
As already noted, the complaint alleges refusals to bargain by Respondent in two
respects, i.e. (1) a refusal to bargain concerning the effects on the employees repre-
sented by the Union at the Pequabuck, Connecticut, plant, of the removal of the
plant to Middlefield, Connecticut; and (2) a refusal to recognize and bargain with
the Union as the exclusive bargaining representative of the production and mainte-
nance employees in the Middlefield plant, to be effective with the move.
1. The appropriate units
The complaint alleges, and Respondent denies, that at its Pequabuck, Connecti-
cut, plant, and similarly at its Middlefield, Connecticut, plant, all production and
maintenance employees, excluding office clerical employees, guards, professional
employees, and supervisors, as defined in the Act, constitute a unit appropriate for
the purpose of collective bargaining within the meaning of Section 9(b) of the Act.
The unit at the Peqdabuck plant was the contract unit ever since 1938 and both
units are in conformity with Section 9(b) of the Act which states that a "plant unit"
is appropriate. It is clear, therefore, and I find, that each of the above units is appro-
priate, as alleged.
2. The majority issue at Pequabuck
Although Respondent denies the majority status of the Union, it is clear, and I
find, that the Union was throughout the period here involved the incumbent union
1912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under a contract with Respondent which recognized it as the sole and exclusive
collective-bargaining agency for all Respondent's production and maintenance
employees at the Pequabuck plant.14 Absent any countervailing evidence showing
a loss of majority status, I find that the Union has, during the time material herein,
represented a majority of the employees in the aforesaid appropriate unit.
3. Concluding findings as to the refusal to bargain concerning the effects
It is apparent from an analysis of the bargaining sessions that Respondent at nv
time, since its letter to the Union of January 25, departed from its basic position, in
substance, that its obligation to bargain as to the effects of its move on the Pequa-
buck employees was limited to determining the rights of the employees deriving
from within the four corners of the existing contract, as modified.15 Consistently
therewith, Respondent refused to furnish information to the Union as to jobs, clas-
sifications, and number of employees at the Middlefield plant, and conditions of
employment which would be different at that plant; it also refused to negotiate con-
ditions of transfer including such items as the carryover of seniority or other benefits.
'The Board has held, and it is well settled, that Respondent's bargaining obligation
under the Act required that it afford the Union an opportunity to bargain with
respect to the contemplated move as it affected the employees, such as the place-
ment of the employees in the Pequabuck plant in positions at the Middlefield plant.16
This, Respondent failed to do.
Respondent interposes various defenses in support of such refusal, namely, (1)
waiver, in that the Union had bargained this away and was chargeable with inaction
in face of knowledge of the move; (2) the Union improperly sought recognition at
the Middlefield plant as a precondition to such bargaining; (3) the parties bargained
to an impasse ; (4) it was ready to furnish the information when the data was ready
but the Union did not request the information at that time; and (5) in any event, as
to the latter, Section 10(b) is applicable here, as the charge relating thereto was
filed on July 22, 1964,17 and the demand for the information occurred on January 7.
In respect to waiver, Respondent relies on the language of the "Coverage" clause
in the strike settlement agreement of May 15, 1964, amending the 1962 agreement,
which is as follows:
The provisions in this agreement shall apply to the Company's Pequabuck plant
only. However, employees covered by this agreement will be given opportuni-
ties for employment in any future plants established for the production of new
products and located within the State of Connecticut. These opportunities for
employment to be offered on the basis of highest seniority to employees on lay-
off from the Pequabuck plant.
It is obvious that this provision related to the specific situation of the establish-
ment of future plants in Connecticut for the production of new products and the
rights of employees in lay-off status at the Pequabuck plant to employment in such
future plants. As the Middlefield plant is not a plant established as an additional
facility to that at Pequabuck in order to produce new products, but is instead the
transposition or removal of the Pequabuck plant to Middlefield, the clause is clearly
inapplicable. Accordingly, I find no clear and unequivocal waiver by the Union to
bargain as to this matter.18 Nor is there any merit to Respondent's claim of waiver
by the Union because of its alleged inaction. As already found, the Union was
It It does not appear that Respondent, at any time during the negotiations, questioned
the Union's majority status at the Pequabuck plant.
15In Respondent's view, this would apparently include the extent of the employees' en-
titlement to vacation and insurance coverage benefits under the existing 1962 contract,
as amended, and also severance pay. It is noteworthy that Respondent's proposal as to
severance, which was made through the mediators on May 18 was predicated, according
to the credible testimony of Tomasetti, on the withdrawal by the Union of the unfair labor
practice charges upon which the instant complaint is based and the withdrawal of the
Union's other demands. Respondent was thus attaching an illegal condition to negotiating
on the issue of severance.
16 Brown, Truck and Trailer Manufacturing Company, Inc. 106 NLRB 999, 1000. see
N.L.R.B. v. Royal Plating & Polishing Co , 350 F 2d 191, 196 (C.A. 3) ; N L R.B. v Rapid
Bindery, Inc., & Frontier Bindery Corp., 293 F.2d 170, 172, enfg. as modified 127 NLRB
212; and Fibreboard Paper Products Corp v. N L.R B., 379 U.S. 203.
17 The correct date is July 20, 1964.
is See Timken Roller Bearing Co. v. _N L.R B., 325 F 2d 746 (C. A 6), cert. denied 376
U.S. 971.
COOPER THERMOMETER COMPANY 1913
apprised of the move on September 11, 1964. At that time, Respondent expected to
settle on a site by the end of the month. So far as appears, the completion of these
plans was not communicated by Respondent to the Union as of January 7 and 8,
when the Union sought to bargain as to the effects on employees of the move. In
these circumstances, I find that the Union acted reasonably and that the lapse of
time is not detrimental to the Union 's bargaining rights.
I also find lacking in merit Respondent's contention that the Union made recogni-
tion of the Union at the Middlefield plant a precondition to bargaining about effects
I have already found that the Union first requested recognition at the Middlefield
-plant at the March 1 meeting with Respondent and that Respondent rejected the
request as premature. It is also clear, and I find, that recognition continued there-
after to be one of the Union's demands. Indeed, it is apparent from the Union's
proposal, inter alia, on March 29, for a 2-year contract term, that recognition was
one of the Union objectives; it is also patent that the views of the Union and
Respondent on the issue of recognition were diametrically opposed. On the one
hand, the Union was urging, in effect, that the Middlefield operation was the same
as the Pequabuck operation, that a majority of the present employees were desirous
of transfer, and that given the transfer of present employees to that plant , the con-
ditions of which transfer it was seeking to negotiate with Respondent, it would be
entitled to recognition. On the other hand, as Audette testified, Respondent was tak-
ing the position that because the Middlefield plant was a new one and it was satis-
fied that most of the employees did not wish to transfer, the question of recognition
had to wait until Respondent had staffed the plant at Middlefield and the Union had
demonstrated its majority status there. According to Audette, Respondent's position
was based on his "observations and apparently from the survey of the people and
the interest of the personnel at the time." And Wiedemann testified, "our position
was that if they [the Union] were to be recognized by us, they would have to dem-
onstrate they did represent a majority of the employees at the Middlefield plant."
While at some point, counsel for Respondent sought to prove that recognition was
the stumbling block to negotiations concerning the effects on the employees of the
move from Pequabuck to Middlefield, the record falls short of establishing that the
Union made recognition a precondition to any further bargaining. Indeed, when
asked whether recognition was the Union's primary demand, Wiedemann answered,
"Well,'I would say their primary demand; but they demanded their rights right down
the line, as I say, because their primary demand was everything they demanded. In
other words, they would not budge on any one particular item, so I would say the
whole thing was tied in with recognition at the new plant. I suppose if we gave them
premature recognition they may have backed down on some other things." (Empha-
sis supplied.) ^ -' -
Nor do I find, as Respondent contends, that the parties bargained to' an "impasse.
According to Wiedemann, an impasse' was reached at the 'second or third negotia-
tion meeting with the Union; after which there were no proposals by 'the Union 19
In support thereof, he pointed to his question to'Tomasetti at that meeting as to
whether Tomasetti knew what his demands would cost 'Respondent and to Toma-
setti's reply that the Union wanted exactly, what it was demanding, that the Union
was entitled to it and that, before the Union was,"through with" Rspondent, it was
going to cost Respondent "plenty." While adding that Tomasetti denied he was
threatening Respondent, Wiedemann' appraised the situation as follows: "It was at
that time that I knew an impasse had been reached and that it would be an almost
impossible thing to bargain out our differences, . there was absolutely no attitude
of give and take. This man [Tomasetti] is a'tough negotiator. When he says no, he
says no." Also, at that time, according to' Wiedemann, he said to Tomasetti, "Look,
Nick, these negotiations are Boulwareism in reverse and it's ironical that it comes
from a union." It is obvious from my findings heretofore that the latter remark was
made at the April 6 meeting, while the ' alleged threat and reference to cost to
Respondent occurred at the March 22 meeting in the context of d, discussion of
claimed discrimination against an employee member of the union negotiating com-
mittee and not in connection with a discussion of the cost of the Union's demands.
In any event, it would appear from Wiedemann's testimony that the claimed impasse
could not have occurred before April 6, which was the final negotiating meeting
preceding the meetings with the conciliators. In reference to the above, Tomasetti
testified that at no time during this April 6 meeting did the Union tell Wiedemann
19I find it unnecessary , in view of my findings hereinafter , to discuss the pros and cons
of Respondent 's and the Union's contentions relating to whether such proposals did come
forth.
1914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or any other company representative that its proposal could not be separated and
that the Union could not bargain on separate items in the proposal. I find Toma-
setti's testimony in this respect more consistent with the content of the negotiations,
as stipulated, and I credit him. Moreover, even assuming, contrary to my findings
herein, that there was at some point a deadlock in the negotiations, it would avail
Respondent nothing. In view of my finding heretofore that, from the inception of
these negotiations, Respondent violated its obligation to bargain in good faith con-
cerning the effects of its move on the Pequabuck plant employees, it would follow
therefrom that the deadlock did not constitute an impasse justifying unilateral action,
as here, by Respondent.20
Nor do I find merit in Respondent's explanation. for its failure to furnish job
information, etc. with respect to the Middlefield plant, as requested by the Union.
Among the items of information sought by the Union, but not furnished, were the
profit and loss statements for 1964 and the first quarter of 1965, requested at the
March 29 meeting, and the data as to jobs, classifications, number of employees to
be required in each, the rate schedules to be applied, and the schedule of hours and
any other conditions of employment at variance with those at the Pequabuck plant,
requested at the January 8 meeting. As to the former, Tomasetti testified that,
although the profit-and-loss statements had been furnished during negotiations of
the 1962 contract, such statements were refused this time on the ground of confi-
dentiality. When questioned by counsel for Respondent as to whether the situation
in 1962 was one in which Respondent claimed inability to pay, Tomasetti answered,
"I don't remember that they ever claimed inability. If they did, I don't want to say
they were lying but they were never unable to pay ." In these circumstances,
and as there was no claim of inability to pay in the instant negotiations, I find that
the instant situation is distinguishable from that in 1962 and that Respondent can-
not be faulted for refusing to comply.21 And with respect to the job data, etc., there
was considerable testimony by Audette as to the scope of the inquiry and study
made by Respondent in order to accumulate the information needed in order to
reply to the Union. According to him, this inquiry and study were completed by the
latter part of April or the first of May. It is, however, clear that much of the data
sought was never furnished to the Union. Weidemann testified in this connection,
on cross-examination, that Respondent complied with the request for information,
"only insofar as the information that we thought they were entitled to get" and that
when the information as to jobs, classifications, schedules as to rates and hours at
the Middlefield plant, and other conditions of employment at variance with those
at the Pequabuck plant became ready in the early part of May, it was not furnished.
However, on redirect examination, Wiedemann testified, in explanation of the fail-
ure to furnish, that the data requested was not submitted when sought by the Union
at the April 6 meeting on the ground, as stated at this meeting, that Respondent did
not then know and would not know until after,April 22, and, further, that when
the data thereafter became available it was not submitted because the Union did not
renew its request therefor. It is, however, apparent, and I find, that the Union at no
time withdrew its request for this information, initially made on January 8, and that
Respondent's failure to furnish the data, which I deem relevant, cannot be justified
on the basis of this asserted failure by the Union to renew a request which was still
outstanding. Moreover, as I have found, the Union did request job classification
material at the joint meeting with the mediators and Respondent refused to comply
because it considered this not to be the Union's "business." Nor can the refusal be
justified on the basis of the intervening unfair labor practice charges filed by the
Union on April 15, as an employer's obligation under the Act to bargain collectively
with the statutory bargaining representative of his employees does not abate with
the filing of a charge. Further, the channels of communication between Respondent
and the Union were still open during the following May, as evidenced by the two
meetings during that month by the parties with a Federal and a State mediator,
called in by Respondent.
In regard to the foregoing, I am also mindful of the fact that Respondent by
letter dated May 11 to the Union set forth in general terms preconditions to hire in
respect to health, character, attendance, and ability or potential for the job, to be
effective in the Middlefield plant. It is noteworthy that, by May 11, Respondent was
already applying these requirements during its negotiations on an individual basis
°Industrial Union of Marine and Shipbuilding Worl,eis of America, AFL-CIO v.
N L R.B., 320 F . 2d 615 (C.A. 3).
21 See Caster Mold d Machine Company , hie, 148 NLRB 1614.
COOPER THERMOMETER COMPANY 1915
with Pequabuck plant employees about employment at the Middlefield plant Fur-
thermore, this information would, at best, be only a partial fulfillment of the Union's
request set forth above. -
Nor can Respondent take umbrage in Section 10(b) of the Act in respect to its
failure to furnish the above information. The fact'that the Union made its initial
demand for information on January 8, more than 6 months before the filing of the
amended charge on July 20, does not bar this aspect of the complaint. For, it is
clear that the initial demand for information was made within 6 months of the fil-
ing of the original 8(a) (5) charge on, April 15, and further that throughout the
negotiations and well within the 10(b) period, the Union reiterated its demands for
the foregoing information.22 -
In sum, therefore, I conclude, in view of all the above, that Respondent violated
Section 8(a)(5) of the Act since on or about January 25, by failing to meet its
obligations thereunder with respect to bargaining with the Union concerning the
effects on its employees in the production and maintenance unit at the Pequabuck
plant of the move to the Middlefield plant, in that it refused to furnish information
requested by the Union and to which the Union was entitled, in that it refused
to negotiate with the Union conditions of transfer, including such items as the
carryover of seniority or other benefits, and in that it dealt individually with
employees concerning the matter of placement in the Middlefield plant in deroga-
tion of the bargaining rights of the Union.
There now remains for consideration the allegation of violation of Section
8(a)(5) in the refusal of Respondent, to recognize and bargain with the Union as
the collective-bargaining representative- of the employees at the Middlefield plant.
Respondent takes the position, in effect, that a preexisting obligation is termi-
nated by a plant removal and is not, revived unless the union involved establishes
a new majority at the new location. However, if as is hereinafter shown, the plant
at the new location (Middlefield) is in effect but a continuation of the old plant
(Pequabuck) and the employer, by his conduct, precluded an orderly transition of
plant personnel to the new plant, I see no necessity for the union to establish a
new majority.23 Thus, as the Board pointed out in California Footwear Company,
114 NLRB 765, 769, the effectuation of the policies of the Act may require that
the Board in any type of plant removal case-one predicated on economic reasons
as well as on discriminatory reasons-"not permit an employer to profit by his
own unlawful conduct; each case of this type must therefore be decided on the
basis of its own facts, including both the character of the employer's conduct and
the probabilities resulting from the surrounding physical circumstances."
On the basis of the entire record, I find that the Middlefield plant is substantially
no more than a continuance of the Pequabuck plant. Thus, as I have already found
above, Respondent has, at the Middlefield plant, as it had formerly at the Pequa-
buck plant, the same basic departments, except for quality control, substantially
the same supervisors and supervisory hierarchy, manufactures the same products,
and has substantially the same number of employees in the production and mainte-
nance unit. I have also found above that, in this day and age when it is common-
place to spend considerable time traveling to and from work, approximately 45
minutes of travel time to work and approximately 27 miles of distance are not so
unusual as to be deemed an overriding factor in appraising the desires of the
employees, male or female, married or unmarried, at the Pequabuck plant to trans-
fer to the Middlefield Plant. In addition, I have found on the basis of all the evi-
dence as to employees' desires respecting transfer that a majority of the employees
at the Pequabuck plant sought through their union continuity of employment at
the Middlefield plant. However, as also found above, Respondent, by its unlawful
refusal to bargain concerning the contemplated move, viz, with respect to the
placement of the employees from the Pequabuck plant in positions at the Middle-
field plant, precluded any such result. It adhered firmly to its position that "we
will talk to the individual . not the Union about employment requirements at
Middlefield." Indeed, despite Respondent's contention to the contrary, I find that
it required employees at the Pequabuck plant to apply for jobs at the Middlefield
plant as new employees. Accordingly, in view of all the foregoing and in the
absence of convincing evidence that a majority, of the production and maintenance
employees at the Pequabuck plant would not have transferred to the Middlefield
plant if Respondent had fulfilled its obligation under the Act, it is not unreasonable
22 Stainless Steel Products Incorporated, 157 NLRB 232.
23 See N L R.B. v. Storack Corporation, 357 F 2d 893 (C.A. 7), enfg 147 NLRB 493.
1916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to infer, and find, that such majority would have transferred 24 Moreover, the
instant situation is not, because of the distance and time factors involved in get-
ting from the Pequabuck plant to the Middlefield plant, substantially different from
one in which an employer replaces, for economic reasons, most of its present
employees in a plant to which it has moved in the immediate vicinity. For, it is
,clear that the bargaining duty toward the exclusive representative would continue
to exist without regard to whether the discharged employees accepted reinstatement,
-and would not be extinguished if such representative failed to reestablish its major-
ity at that plant 25 I find, therefore, that by refusing to bargain since about May 17,
1965, with the Union as the exclusive bargaining representative of the production
and maintenance employees unit at the Middlefield plant, found appropriate above,
Respondent violated Section 8(a)(5) and (1) of the Act, as alleged.26
Upon the basis of the entire record, 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 employees of Respondent constitute units appropriate for col-
lective bargaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees employed at the Pequabuck,
Connecticut, plant, excluding office clerical employees, guards, professional
employees, and supervisors, as defined in the Act.
All production and maintenance employees employed at the Middlefield,
Connecticut, plant, excluding office clerical employees, guards, professional
employees, and supervisors, as defined in the Act.
4. The Union at all times material has been the exclusive representative of all
the employees in the aforesaid bargaining units at the Pequabuck, Connecticut,
plant and at the Middlefield, Connecticut, plant, and is now such representative at
the latter plant.
5. By refusing-since on or about January 25, 1965, to bargain collectively with
the Union as the exclusive representative of the employees in the aforesaid bar-
gaining unit at its Pequabuck, Connecticut, plant concerning the effects upon such
employees of, the removal of the plant to Middlefield, Connecticut, and by dealing
individually with employees concerning the matter of placement in the Middlefield
plant in derogation of the bargaining rights of the Union, 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 since about May 17, 1965, to bargain collectively with the Union
as the exclusive representative of the employees in the aforesaid bargaining unit
at its Middlefield, Connecticut, 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.
7. The aforesaid unfair labor practices' are unfair labor practices affecting com-
merce within the, meaning of Section 2(6) and (7) of'the Act.
u Supportive of-this conclusion is the fact that, notwithstanding the exclusion of the
Union from negotiations concerning transfer and the fact that the unilateral changes by
Respondent, such as lower wages, appeared to have disadvantaged them to some extent,
10 employees did transfer. Also indicative of the probabilities is the fact that Respondent's
supervisory hierarchy transferred substantially intact from the Pequabuck plant.
25 Cf California Footwear Company, supra.
2a Contrary to Respondent, this obligation to recognize is not adversely affected by the
fact that the removal to Middlefield occurred after the existing 1962 contract, as amended,
had been terminated in accordance with the provisions thereof. As the above contract had
not yet expired as of January 25, 1965, when the unfair labor practices found herein
began, the Union was presumptively still the exclusive representative of Respondent's
employees at that time Shamrock Dairy, Inc, 119 NLRB 998,•124 NLRB 494, enfd. sub
nom. International Brotherhood of Teamsters, Local Union No. 310 v. N L Ii.B., 280 F 2d
665 (C.A.D C ), cert. denied 364 U.S. 892. Furthermore, any defections from the Union
after January 25 were attributable to such unfair labor practices. In all the circum-
stances, the expiration of the above contract cannot, by itself, relieve Respondent of its
duty to continue to recognize the Union as the statutory representative of these employees.
See Yale Upholstering Company, 127 NLRB 440.
COOPER THERMOMETER COMPANY 1917
THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall
recommend that Respondent cease and desist therefrom and from any like or
related conduct. As for affirmative relief, I shall recommend that Respondent, upon
request, bargain collectively with the Union concerning the effects -upon the pro-
duction and maintenance employees at the Pequabuck, Connecticut, plant of the
removal of the plant to Middlefield, Connecticut, and further that Respondent,
upon request, bargain collectively with the Union as the exclusive bargaining repre-
sentative of all the employees in the unit herein found appropriate at the Middle-
field, Connecticut, plant. I shall further recommend that Respondent offer immedi-
ate reinstatement and make whole those unit employees at the Pequabuck plant
who were discharged as a result of Respondent's unlawful actions. See Fibreboard
Paper Products Corp. v. N.L.R.B., 379 U.S. 203; and Puerto Rico Telephone
Company, 149 NLRB 950 .27 It is noted that the record does not identify those
employees, who for reasons of their own, would not have transferred to the plant
in Middlefield, in any event, and would therefore not be entitled to reinstatement
and backpay. However, I regard this as a matter to be determined at the com-
pliance stage of this proceeding.28
Since I have found that Respondent has unlawfully refused to furnish the Union
relevant information as to jobs, classifications, rates and hours at the Middlefield
plant, and as to other conditions of employment at variance with those that existed
at the Pequabuck plant, I shall recommend that Respondent furnish the Union
with such information and data so as to enable the Union to discharge its function
as statutory representative of Respondent's employees.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case, I recommend that Respondent, its officers,
agents , successors , and assigns , shall: -
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with United Electrical, Radio
and Machine Workers of America, Local 233, the exclusive representative, con-
cerning the effects of the move to the Middlefield, Connecticut, plant on the
employees in the following 'appropriate unit: '
All production and maintenance employees at the Pequabuck, Connecticut,
plant, excluding office clerical employees, guards, professional employees, and
supervisors, as defined in the Act.
(b) Refusing to bargain collectively in good faith concerning rates of pay,
wages, hours of employment, or other conditions of employment with United
Electrical, Radio and Machine Workers of America, Local 233, as the exclusive
representative of the employees in the following appropriate unit:
All production and maintenance employees at the Middlefield,. Connecticut,
plant, excluding office clerical employees, guards, professional employees, and
supervisors, as defined in the Act.
27 In accordance with the usual requirements, reinstatement shall be to the employees'
former or substantially equivalent positions , without prejudice to their seniority and other
rights and privileges , with backpay from the date of their termination to the date of
Respondent's offer of reemployment, less net earnings during said period. Backpay shall
be computed in accordance with the formula set forth in F. W. Woolworth Company, 90
NLRB 289, with interest thereon as specified in Isis Plumbing & Heating Co, 138 NLRB
716. Backpay shall be computed at the rates provided in the Pequabuck plant contract.
Contrary to Respondent, the fact that reinstatement of the employees may result in
the displacement of new employees and cause - them hardship is not here controlling. In
fact, the principle that the Board may order reinstatement of employees at plants other
than those at which they had worked is not novel : See Republic Steel Corporation v
N.L.R.B., 107 F.2d 472 , 480, modified on other points 311 U.S. 7.
Further, N.L.R.B. v. Rapid Bindery Corp., 293 F.2d 170 relied on by Respondent in
opposing an order to recognize the Union at the Middlefield plant and to make whole the
employees herein is clearly distinguishable in that there is evidence here from which it is
not unreasonable to infer that had Respondent not engaged in the unlawful' actions found
herein , a majority of the employees would have transferred from the Pequabuck plant to
the Middlefield plant.
21 See Puerto Rico Telephone Company, supra.
1918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) in any like or related manner interfering with the efforts of the above-
named Union to_ bargain collectively with Respondent on • behalf of employees in
the appropriate units.
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 at the
Pequabuck, Connecticut, plant, concerning the effects on the employees of the move
to the Middlefield plant. • ,
(b) Upon request, bargain collectively with the above-named Union as the
exclusive representative of. the employees in the appropriate unit at the Middlefield,
Connecticut, plant, and embody in a signed agreement any understanding reached.
(c) Upon request, furnish the above-named, Union with relevant information
-and data, concerning, jobs, classifications, number of employees, rates, and hours
.at the Middlefield, Connecticut, plant, and as to other conditions at variance with
those that existed at the Pequabuck, Connecticut; plant, so as to enable the Union
to discharge its function as,statutory representative of Respondent's employees in
the appropriate units.
(d) -Offer those,: employees discharged 'as a result of Respondent's unlawful
action immediate. and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and privileges, and
make them whole, in the manner set forth in the section of this Decision; entitled
"The Remedy." .
(e) Notify any discharged employee, if presently serving in the Armed Forces
of the United States of his right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Service and Training
Act, as amended, after discharge from the Armed Forces.
(f) • Preserve and, upon request, make available to the Board and its agents, for
'examination and copying, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records necessary or useful
to determine the rights of reinstatement and the amounts of backpay due under
the terms of this Recommended Order.
(g) Post at its plant in Middlefield, Connecticut, copies of the attached notice
marked "Appendix." 29 Copies of such notice, to be furnished by the Regional
Director for Region 1, after being signed- by an authorized representative of
Respondent, shall be posted immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notice is not altered, defaced, or
covered by any other material.
(h) Notify the said Regional Director, in writing, within 20 days from the date
of the receipt of this Trial Examiner's Decision, what steps Respondent has taken
to comply herewith so
29 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words' "a Decision
and Order."
301n the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively in good faith with United
Electrical, Radio and Machine Workers of America, Local 233, the exclusive
representative, concerning the effects of the move to the Middlefield, Connecti-
cut, plant on the employees in the bargaining unit described below.
TEAMSTERS, CHAUFFEURS, ETC., LOCAL UNION NO. 327 1919
WE WILL, upon request; bargain with,United Electrical , Radio and Machine
Workers of America , Local 233, as the exclusive bargaining representative of
our employees in the . bargaining unit described ' below concerning the effects
on these employees of the- move^ ' to the Middlefield , Connecticut , plant. The
bargaining, unit is:
All production and maintenance employees at the Pequabuck , Connecti-
cut, plant, excluding office clerical employees , guards, professional
employees; and supervisors , as defined in the Act.
WE WILL NOT refuse to bargain collectively with United Electrical, Radio
and Machine Workers of America, , Local 233, as the exclusive representative
of all the employees in the bargaining unit described below.
WE WILL, upon request , bargain ' with United Electrical , Radio and Machine
Workers of America , Local 233, as , the exclusive representative of all the
employees in the bargaining unit described below with respect to rates of pay,
wages, hours of employment , and other terms and conditions - of employment,
and, if an understanding , is reached , embody such an understanding in a signed
agreement . The ,bargaining unit is:
All production and maintenance employees at the Middlefield , Connecti-
cut, plant, excluding office ' clerical employees, guards, professional
- employees , and supervisors , as defined in the Act.
WE. WILL , upon request, furnish the above -named Union with relevant
information and data concerning jobs, classifications , number of employees,
rates, and hours at the Middlefield , Connecticut , plant, and as to other con-
ditions at, variance with those that existed at the Pequabuck , Connecticut, plant
so as to enable it to discharge its function as statutory representative of our
employees in the above -appropriate units.
WE WILL offer those employees discharged as a result of our unlawful action
immediate and full reinstatement to their former or substantially equivalent
positions , 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.
COOPER THERMOMETER COMPANY,
Employer.
Dated------------------- By--------------------------------------------
(Representative) (Title)
NoTE.-Notify the above-named employees if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Boston
Five Cents Saving Bank Building, 24 School Street, Boston, Massachusetts 02108,
Telephone 223-3353.
Teamsters, Chauffeurs, Helpers and Taxicab Drivers, Local
Union No. 327 , affiliated with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of America
and Greer Stop Nut Co., a division of Kaynar Mfg. Co., Inc.
Case 206-CB-311. October 13, 1966
DECISION AND ORDER
On July 8, 1966, Trial Examiner Thomas A. Ricci issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
160 NLRB No. 147.