Desoto, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1986

278 N.L.R.B. 788 (N.L.R.B. 1986)

788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DeSoto, Inc. and Teamsters Union Local 115 a/w
International Brotherhood of Teamsters,,Chauf-
feurs, Warehousemen and Helpers of America.
Case 4-CA-12828
28 February 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 23 June 1983 Administrative Law Judge
Norman Zankel issued the attached decision. The
Respondent, the Charging Party, and the General
Counsel filed exceptions and supporting briefs. The
Respondent and the General Counsel also filed an-
swering briefs.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings,2 and
conclusions only to the extent consistent with this
Decision and Order.
We agree with the judge's dismissal of the
8(a)(5), (3), and (1) allegations concerning the Re-
spondent's closure of its Pennsauken, New Jersey
facility.3 We disagree, however, with his finding
that the Respondent violated Section 8(a)(5) by
failing to bargain with the Union about the effects
of the closing.
As found by the judge, the Respondent informed
the Union of the closing on 4 February 1982. The
Union requested, and the Respondent agreed, to
bargain about the effects of the closure. The parties
' The Respondent filed a motion to reopen the record to receive evi-
dence of its transfer of all rights , title, and interest in its former Pennsau-
ken plant In view of our dismissal of the complaint , we find it unneces-
sary to rule on the motion.
2 The Charging Party and the General Counsel have excepted to some
of the judge 's credibility findings . The Board 's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings
In discussing employee Magorry's testimony concerning an August
1981 conversation with Personnel Manager Lepore in sec. III,B ,( l) of his
decision, the judge attributes to Lepore the comment that if there were
to be a strike the Union should conduct it in good weather. The record
shows that Magorry testified that he made the "good weather" statement.
In sec III,C, ( 1) of his decision , the judge refers to the Union 's analysis
that the Company could increase its savings by $466,000 by closing the
Columbus plant rather than the Pennsauken facility The judge failed to
mention that this figure was premised on the reduction of the Pennsauken
production and maintenance employees ' wages and benefits to the level
received by the employees at the Orlando plant
3 In finding it inappropriate to defer to the grievance arbitration award
in this case , we note the judge's observation that the issues presented to
the Board , involving both the production and maintenance and the office
clerical and laboratory technician units, are broader than those in the ar-
bitral proceeding. In addition , no party in this proceeding seeks deferral
See Olin Corp., 268 NLRB 573 (1984)
met on 16 February and the Union made several
proposals regarding the effects of the closure. The
parties discussed numerous subjects at the meeting.
The parties met again on 26 February. The Re-
spondent made several proposals and the Union
made counterproposals. The Respondent made a
final offer, covering 10 subjects. The Union reject-
ed the offer. At that point the Respondent's attor-
ney stated that,the meeting was over, whereupon
he was physically confronted by the Union's secre-
tary-treasurer Morris.
Following the arbitrator's award the Respondent
advised the Union of its willingness to negotiate
over the decision to close and the effects. The par-
ties met on three occasions in September 1982. The
Respondent took the position that it would not
resume operations at the plant. The Union declined
to discuss production and maintenance unit matters
in light of the arbitrator's award. Instead, the
Union sought to continue the contract negotiations
for the clerical and technician unit.
In January 1983 the Respondent again offered to
bargain about the decision and effects of the clo-
sure . The parties met in February and March and
discussed the decision to close. The Union request-
ed information related to the decision to close.
Contrary to the judge, we find that the Respond-
ent satisfied its obligation to bargain about the ef-
fects of the Pennsauken closure. The Respondent
complied with the Union's request to meet in Feb-
ruary 1982 and bargain about numerous effects-re-
lated 'subjects. The Respondent remained willing to
discuss the closure, and subsequent negotiations
took place. The Union, however, chose to discuss
the decision to close, not the effects, and requested
information pertaining to the decision. We find that
the record does not support the judge's findings
that the Respondent's proposal to keep the plant
closed and its failure to provide all the information
it promised the Union prevented effects bargaining.
Rather, we find that the Respondent adequately en-
gaged in and remained willing to conduct effects
bargaining . To the extent more extensive effects
bargaining did not occur, it was attributable to the
Union's lack of interest in pursuing such bargain-
ing.
Unlike our dissenting colleague, we find that the
Respondent's closing of the Pennsauken plant and
transfer of the work to other facilities did not
modify any provision in the parties' collective-bar-
gaining agreement . Under Milwaukee Spring Divi-
sion, 268 NLRB 601 (1984), affd. 765 F.2d 175
(D.C. Cir. 1985), the Board may find a violation of
Section 8(d) when a company decision modifies a
specific contractual term dealing with a mandatory
subject of bargaining. The Charging Party asserts
278 NLRB No. 114
DESOTO, INC.
that article XXV of the contract precludes the Re-
spondent's action here. The Respondent contends
that the closing and transfer of work are consistent
with article XXVI of the contract. Those articles
are as follows:
Article XXV-Plant Location
The Company shall not move its plant from its
present location beyond the radius of twenty-
five (25) miles without the written consent of
the Union, but the Union shall not withhold its
consent for arbitrary or capricious reasons.
Article XXVI-Subcontracting
The Employer will not subcontract or transfer
out work which results bn a layoff of its em-
ployees, except that this limitation on subcon-
tracting, or transferring out shall not be appli-
cable to the allocation of products among the
various plants of the Company for business
reasons.
An arbitrator concluded that the Pennsauken
closing violated the contract. The arbitrator found
that article XXV, not article XXVI, applied to the
Respondent's action. The Third Circuit upheld the
arbitrator's finding. Teamsters Local 115 v. DeSoto,
Inc., 725 F.2d 931 (1984). The, court observed that
the arbitrator's interpretation of the two clauses, to
some extent, appeared to be a dubious one. Never-
theless, the court found that the clauses were at
least open to interpretation, and the Company did
not establish that the arbitrator's interpretation was
irrational or did not draw-its essence from the par-
ties' agreement. 725 F.2d at 935.
We have not been asked to defer to the arbitra-
tor's award. Having reviewed the contract, we find
no term that restricts the Respondent's right to
close the Pennsauken plant and transfer the work
to other company facilities. Article XXV limits the
Respondent's right to move the Pennsauken plant
from its present location. The evidence, shows,
however,,that the Respondent decided to close the
Pennsauken facility because of excess production
capacity in its overall operation.4 Thus, the Re-
spondent did not move the Pennsauken plant to an-
other location. Rather, it decided to eliminate the
plant from its production complement. The very
fact that prompted the closing-excess production
capacity at the Respondent's 10 plants-also count-
ed for the reallocation of Pennsauken's work to
other existing facilities. By eliminating the Pennsau-
ken plant, the Respondent relieved its excess capac-
ity problem and made, its overall operation more
efficient and economical. We therefore find that
the Respondent's closing of the Pennsauken plant
789
and transfer of'the work to other facilities did not
constitute a."move" within the meaning of article
XXV. The only other contract provision that re-
lates to the Respondent's decision is article XXVI.
That clause, by authorizing the Company to trans-
fer out work in order to allocate products among
the various plants for business reasons; is consistent
with the Respondent's action. -Having considered
the nature of the Respondent's action and the spe-
cific language of the contract, we find that the Re-
spondent did not modify any term of the contract
by closing the Pennsauken plant and transferring
the work to its other facilities.
We further find that the Respondent was not ob-
ligated under Section 8(a)(5) to bargain about the
decision to close Pennsauken and transfer the work
elsewhere. We agree with the judge's fording that
contractual labor costs were not an operative
factor in the Respondent's decision. Thus, under
Otis Elevator Co., 269 NLRB 891 (1984), the Re-
spondent's decision was not amenable to bargain-
ing.
Based on the foregoing, we shall dismiss the
complaint in its entirety.
ORDER
The complaint is dismissed.
MEMBER DENNIS, dissenting .
I disssent from the majority's failure to find that
the Respondent violated the Act by abrogating its
explicit contractual pledge to preserve unit work.
The majority's decision is contrary to the Act's
purpose of "stabiliz[ing] agreed upon conditions
during the term of a [collective-bargaining agree-
ment]." Boeing Co. v. NLRB, 581 F.2d 793, 798
(9th Cir. 1978) (emphasis in original).
Since 1970 the Union has represented the Re-
spondent's Pennsauken, New Jersey plant produc-
tion and maintenance employees. The parties' most
recent collective-bargaining agreement, effective 16
January 1980 to 15 January 1983, contains the fol-
lowing work preservation clause:'
The Company shall not move its plant from its
present location beyond the radius of twenty-
five (25) miles without the written consent of
the Union, but the Union shall not withhold its
consent for arbitrary and capricious reasons.
In February 1982 the Respondent announced
that it was closing the Pensauken plant and trans-
ferring the facility's work to other plants. In March
the Union filed a grievance alleging that the clos-
ing violated the above-quoted article XXV. In
4 The Respondent had 10, production facilities nationwide at the time. 1 The parties' previous contracts contained the same clause.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August an arbitrator found the grievance meritori-
ous, stating that article XXV "prohibits the elimi-
nation of the entire work force by a move,. .. that
might make transfer infeasible." In November a
district court enforced the arbitrator's conclusion,
and in July 1984 the Third Circuit held that the ar-
bitrator properly found the closing violated article
XXV. Teamsters Local 115 v. DeSoto, Inc., 725 F.2d
931 (1984).
An employer may not modify terms and condi-
tions of employment contained in a contract with-
out obtaining the union's consent before imple-
menting the change. Milwaukee Spring Division, 268
NLRB 601 (1984), affd. 765 F.2d 175 (D.C. Cir.
1985). Thus, if the parties' contract contains a spe-
cific term prohibiting the Respondent's transferring
the Pennsauken work, the Company may not do so
during the contracts's duration without the Union's
consent.
The parties' work preservation clause is a specif-
ic term contained in the contract that the Respond-
ent modified without the Union's consent when the
Company closed the Pennsauken plant and trans-
ferred the facility's work elsewhere.2 The arbitra-
tor's decision and the court opinions so construe
the contract language, and I see no reason for con-
cluding otherwise.3
Consequently, the Respondent's midterm modifi-
cation of the contract violated Sections 8(a)(5) and
8(d) of the Act.4 I would order the Respondent to
reopen the Pennsauken facility, reinstating produc-
tion, maintenance, clerical, and technical employees
the Respondent laid off as a result of the plant clos-
ing and work transfer.5
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge. This
case was tried before me on April 4-8, 13-15, and 25,
1983, at Philadelphia, Pennsylvania.
The cause came before me on a complaint and notice
of hearing issued by the Regional Director for Region 4
of the National Labor Relations Board on March 4,
1983. In substance, the complaint alleges that the Em-
ployer violated Section 8(a)(1), (3), and (5) of the Act by
discriminatorily laying off the employees in two appro-
priate bargaining units consisting of production and
maintenance and clerical and laboratory technicians then
employed at its Pennsauken, New Jersey facility; by
transferring all production work from the facility; and by
closing that facility, all on February`4, 1982,2 and with-
out first having given the Union, as the exclusive collec-
tive-bargaining representative of the employees in both
bargaining units , a chance to negotiate and bargain about
the decision and the effects of the work transfer, layoffs,
and closing.
The Employer filed a timely answer which admitted
certain matters but denied the substantive allegations and
that it had committed - any unfair labor practice.
All parties appeared at the trial. Each was represented
by counsel and afforded full opportunity to be heard, to
introduce and meet material evidence , to examine and
cross-examine witnesses , 2 to present oral argument, and
to file briefs . Counsel for all parties submitted posttrial
briefs, the contents of which have been carefully consid-
ered. s
On consideration of the entire record, the briefs, and
my observation of the witnesses and their demeanor, I
make the following
FINDINGS AND CONCLUSIONS
2 Of course, an employer does not violate the Act by unilaterally
changing a contract term dealing with a permissive bargaining subject.
Allied Chemical & Alkali Workers Local 1 v. Pittsburgh Glass, 404 U S. 157
(1971). A work preservation clause, however, is a mandatory bargaining
subject See my concurring opinion in Otis Elevator Co., 269 NLRB 891,
899 fn 16 (1984).
a As no party raises the deferral issue , I do not defer to the arbitrator's
award. Nevertheless, recognizing arbitrators' expertise in construing con-
tarcts, I regard the arbitrator's decision as a helpful tool in interpreting
art. XXV
4 I find it unnecessary to address the General Counsel's additional
theories.
5 The Respondent filed a motion to reopen the record , alleging that in
December 1984 it sold the Pennsauken plant I would deny the motion,
but permit the Respondent to show at the compliance stage of this pro-
ceedmg that the above remedy would be unduly burdensome.
Marvin L. Weinberg, Esq., for the General Counsel.
Barry Bevacqua, Esq., and Jerald R. Cureton, Esq.
(Pechner, Dorfman, Wolffe Rounick & Cabot), of Phila-
delphia , Pennsylvania, for the Employer.
Richard Markowitz, Esq., and William T. Josem, Esq.
(Markowitz & Richman), of Philadelphia, Pennsylvania,
and Norton Brainard, Esq., of Philadelphia , Pennsylva-
nia, for the Union.
1. JURISDICTION -
Jurisdiction- is uncontested. The Employer is, and at all
material times has been, a Delaware corporation. Until
February 4, 1982, the Employer was engaged in the
manufacture of paint and household detergent at a facili-
ty located at 8600 River Road, Pennsauken , New Jersey.
During calendar year 1981 , the Employer -purchased
and received goods and materials valued in excess of
$50,000 directly from points outside New Jersey.
Based on the foregoing, and the Employer's admission,
I find it is, and at all material times has been,, an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The answer admits, the record reflects, and I find the
Union is, and at all material times has been, a labor' orga-
nization within the meaning of Section 2(5) of the Act.
1 All dates hereinafter are in 1982 unless otherwise stated.
2 The Employer 's motion to sequester witnesses was granted. Each
party was permitted one representative to be present throughout the pro-
ceedmgs at the counsel table.
S The General Counsel's unopposed motion, dated May 27, 1983, to
correct transcript is granted.
DESOTO, INC. 791
H. THE ISSUES
A. Whether the closing of the Pennsauken operations
and subsequent reallocation of work formerly performed
at that location was motivated by unlawful consider-
ations in violation of Section 8(a)(3) of the Act within
the purview of Textile Workers v. Darlington Co., 380
U.S. 263 (1965).
B. Whether the Employer unlawfully refused to bar-
gain over the decision to close its Pennsauken operations
in violation of Section 8(a)(5) of the Act.
C. Whether the Employer unlawfully refused to bar-
gain over the effects of closing the Pennsauken facility in
violation of Section 8(a)(5) of the Act.
D. Whether the closing and attendant reallocation of
work to other facilities constitutes an unlawful midterm
modification of the production and maintenance collec-
tive-bargaining agreement , within the purview of Los An-
geles Marine Hardware Co., 235 NLRB 720 (1978), enfd.
602 F.2d 1302 (9th Cir. 1979) (LA Marine).
E. Whether an order to restore the status quo ante by
requiring the Employer to resume the Pennsauken oper-
ations is appropriate.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The Employer's business and relevant hierarchy
The Employer, the seventh largest manufacturer of
consumer paint in the United States, maintains its corpo-
rate headquarters in Des Plaines, Illinois. When the al-
leged unfair labor practices occurred, the Employer op-
erated three production groups. 'Those groups were des-
ignated as chemical, specialty products, and furniture.
(The furniture group was sold subsequent to the critical
incidents.)
There are two divisions, chemical coatings and chemi-
cal products, within the chemical group. Ten production
facilities existed in various locations at the time of the al-
leged unfair labor practices. They were located in Penn-
sauken , New Jersey, Chicago Heights, Illinois, Elgin, Il-
linois, Greensboro, North Carolina, Columbus, Ohio, Or-
lando, Florida, Garland, Texas, Berkely, California,
Orange, California, and Westland, Michigan. The chemi-
cal coatings division produces industrial coatings and
consumer paint marketed for the do-it-yourself paint pur-
chaser. The Employer's do-it-yourself paint is manufac-
tured by the Employer for two customers, Sears, Roe-
buck & Company and American Hardware Company.
Sears, which owns 31 percent of the Employer's
-common stock, purchases approximately 75 percent of
the Employer's paint production. The Employer is under
contract with Sears. That contract provides Sears must
purchase 90 percent of its paint requirements from the
Employer as long as the Employer's price to Sears is
lower than any other supplier's price to Sears for a prod-
uct of similar quality.4 At Pennsauken, the Employer
4 Unrefined evidence reflects that, in 1978, Sears purchased 1 million
gallons of paint from another manufacturer because the Employer could
not meet its competitor's price
manufactured both do-it-yourself paint (for the chemical
coatings division) and also detergent (for the chemical
products division).5
Two other plants, one located at Joliet, Illinois, and
the other at Orange, California, functioned as part of the
chemical products division.
The relevant corporate hierarchy located at the Em-
ployer's headquarters are: R. E. Missar, president and
chairman of the board; W. L. Lamey Jr., vice president,
finance; J. Barreiro, vice president, personnel and indus-
trial relations; R. J. Anderson, vice president and group
president, chemical division; J. E. Curran, director, in-
dustrial relations; W. L. Anderson, vice president, chemi-
cals group and general manager, chemical coatings divi-
sion; and D. A. Bergren, vice president, chemicals group
and general manager, chemical products division.
Relevant members of the Pennsauken facility are: I. P.
Schwerd, plant manager; F. Lepore, personnel manager;
and J. Adams, assistant warehouse superintendent.6
2. Relevant collective-bargaining history at
Pennsauken
The Union has been the collective-bargaining repre-
sentative for the approximately 60 employees in the
Pennsauken production and maintenance unit since 1970.
The employer and the Union had negotiated a collective-
bargaining agreement in 1970 following a strike. There
have been no other strikes at the Pennsauken facility
since that time. Successive collective-bargaining agree-
ments were negotiated in 1977 and 1980. The latter
agreement expired, by its terms, on January 15, 1983.
The parties arbitrated only one grievance between 1970
and 1980. The Employer's personnel manager and the
Union's chief steward agreed that throughout this time
the parties' relationship was amiable.
The Employer maintains collective-bargaining relation-
ships with unions representing employees at other of its
facilities. Specifically, production employees at the Joliet
plant are represented by the Paperworkers Union; the
Joliet maintenance employees are represented by the Ma-
chinists Union; the Auto Workers represents the produc-
tion and maintenance employees at the Westland facility;
the production and maintenance employees at Berkely
are represented by the Painters Union; the Royal Chatta-
nooga Division, specialty products group employees, are
represented by a Teamsters local; and a skeleton force of
5 The Union submitted a motion, dated June 2, 1983, to reopen the
record to adduce evidence, asserted as newly discovered, regarding the
announcement of the opening of a new plant within its chemical products
division The General Counsel joined m the motion On June 6, 1983, I
ordered the Employer to show cause why the motion should not be
granted. All parties responded to the show cause order On June 16,
1983, I denied the motion because it appeared the evidence to be intro-
duced is irrelevant in that it is the chemical coatings division which is the
gravamen of the instant complaint (see also fn 34, infra), presentation of
the evidence would comprise a "fishing" expedition; and reopening
would entail an unnecessary delay in issuance of this decision which is
guided by a U S district court injunction
6 It was stipulated that at all material times up until February 4, 1982
(the date Pennsauken closed), Adams occupied this position, that he was
laid off on February 4 and was recalled to his former position about Feb-
ruary 16 in which he worked until May 14; and that during the times
Adams worked he was a supervisor within the meaning of the Act
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintenance employees at the former furniture facility at
Fort Smith, Arkansas, are represented by the Furniture
Workers Union.
There are office clericals and laboratory technicians
employed at each of the Employer's nine facilities (ex-
cluding Pennsauken) of its chemical coatings division.
None of those employees are represented by any labor
organization, nor have they ever been so represented.
During the spring of 1981, the 18 office clericals and lab-
oratory technicians at Pennsauken requested the Union
to represent them for collective-bargaining purposes. On
May 11, 1981, the Union requested recognition on behalf
of these employees. The Employer declined recognition.
The Union filed a representation petition (Case 4-RC-
14720). A Board-conducted consent election was held on
July 9, the employees voted for union representation.
The Union was certified as the bargaining representative
of Pennsauken's office clericals and laboratory techni-
cians on July 17. Negotiations ensued.?
There are two noteworthy contractual provisions re-
garding the Pennsauken production and maintenance
unit. They are articles XXV and XXVI. Each of these
clauses has been in existence, without language change,
since the 1970 collective-bargaining , agreement . Article
XXV deals with plant relocation. It provides "the Com-
pany shall not move its plant from its present location
beyond a radius of twenty five (25) miles, without the
written consent of the Union, but the Union shall not
withhold its consent for arbitrary and capricous rea-
sons."
Article XXVI deals with subcontracting and transfer
out of bargaining unit work. It provides "the Employer
will not subcontract or transfer out work which results
in a layoff of its employees, except that this limitation on
subcontracting or transferring out shall not be applicable to
business peaks or valleys or to the allocation of products
among the various plants of the Company for business rea-
sons." (Emphasis added.)
The Employer's defense to the instant allegations is, in
part, premised on its claim that it was contractually priv-
ileged to close the Pennsauken facility and reallocate its
work, The Employer contends the italicized exception in
article XXVI establishes its right to reallocate its work
from Pennsauken to other facilities.
On March 4, 1982, the Union filed a grievance in
which it complained the Pennsauken closing and work
transfer violated article XXV. That grievance was arbi-
trated. On August 16, 1982, the arbitrator issued his deci-
sion. He found, consistent with the Union's position, that
the Employer indeed had violated the collective-bargain-
ing agreement. The award ordered that Pennsuaken be
reopened and the effected employees be made whole.
The Employer moved the U.S. district court to vacate
the award.
On November 10, 1982, the district court vacated that
portion of the arbitrator's award which required resump-
tion of operations. The case was remanded to the arbitra-
tor for amendment of his award consistent with the
court's judgment. On November 24 and 30, 1982, respec-
7 The substance of the office and laboratory bargaining will be dis-
cussed below
tively, the arbitrator issued a conforming determination
and opinion on remand. The revised award excluded an
order to reopen. The revised award was confirmed by
the district court on December 6, 1982. The Employer
has declined to comply and, instead, appealed to the
Third Circut Court of Appeals. That appeal is currently
pending. The appeal challenges the propriety of the arbi-
tration award in its entirety.
In the instant case, the Union asserts that "arbitrator
has determined that the Company's actions in closing
Pennsauken and allocating its production elsewhere con-
stituted a violation or unlawful modification of . . . Arti-
cle (XXV)." In essence, the Union argues that the arbi-
trator's conclusions provide me with one of the predi-
cates for finding the Pennsauken closing constitutes such
a midterm modification as is contemplated by LA
Marine.
The Employer contends the Board is not bound by
any finding or conclusion of the arbitrator. The Employ-
er claims the arbitrator exceeded his authority when he
"balanced" the parties' bargaining positions and that he
also incorrectly found the Employer's conduct breached
the collective-bargaining agreement.
During the hearing, counsel for the General Counsel
declared, in effect, it was not his position that the Board
is bound by the arbitrator's award.
I need not resolve these contentions of the parties. The
circuit court properly has the propriety of the arbitra-
tor's award before it.
I am mindful of the Supreme Court's observation that
national labor law policy encourages the arbitration
process as set forth in the so-called Steelworkers Trilogy
(Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960);
Steelworkers v. Gulf Navigation Co., 363 U.S. 574 (1960);
and Steelworkers v. Enterprise Corp., 363 U.S. 593 (1960)).
That observation was enunciated when the Court stated
that the "grievance machinery under a collective-bar-
gaining agreement is at the very heart of the system of
industrial self-government. . . . The processing machin-
ery is actually a vehicle by which meaning and content
are given to the collective-bargaining agreement." (Steel-
workers v. Warrior & Gulf Navigation Co., 363 U.S. 574 at
578(1960).) I subscribe to that philosophy.
However, it is equally clear that the Board's expertise
in labor-management relations is accorded deference.
Thus, in Carey v. Westinghouse Electric Corp., 375 U.S.
261, 272 (1964), the Supreme Court noted "should the
Board disagree with the arbiter . . . the Board's ruling
would, of course, take precedence." The case at bar con-
tains elements which both tend to support and reject the
principle that the Board should be bound by the arbitra-
tor's award. In support, it is clear the arbitrator deter-
mined the contractual issue. Conduct assertedly in dero-
gation of contractual commitments is eminently suited to
the arbitral process. On the other hand, the arbitrator
had absoutely no issue before him which relates to the
clericals and technicians unit. No contract existed for
him to interpret. The rights of those employees are pre-
sented for resolution for the first time only in the present
forum, as alleged unfair labor practices.
DESOTO, INC.
Moreover, although the rights of the production and
maintenance employees were encompassed in the arbitra-
tion within the framework of alleged contract violation,
they are also presented to the Board as alleged unfair
labor practices and are based, in part, on evidence of al-
leged unlawful motivation as a violation of their rights
under Section 7 of the Act. Issues of unlawful motivation
generally are reserved for Board determination (General
American Transoportation Corp., 228 NLRB 808 (1977)).
Also, deference to the arbitrator's award would deprive
the Board of its statutory obligation to fashion a com-
plete remedy. That is, the arbitrator's award necessarily
is limited in scope to the length of the parties' collective-
bargaining agreement. As noted, that contract expired in
January 1983. If the Board were to find a violation, the
remedy would be broader. It would extend beyond the
contract's life.
From the above, it is clear that the Board must pro-
ceed to hear and determine the unfair labor practice
issues, ab initio, because the arbitrator undeniably did not
have those matters presented to him and his written
opinions evince no indication that he considered those
issues. See Suburban Motor Fi eight, 247 NLRB 146
(1980). In Schaefer v. NLRB., 697 F.2d 558 (1983), the
Third Circuit Court of Appeals noted, With apparent ap-
proval, that where Section 7 rights are concerned and
are not presented and considered in arbitration proceed-
ings, the Board correctly entertains the unfair labor prac-
tice claims before it.
Accordingly, the balance of this decision will deal
with the issues framed by the pleadings. To deviate from
this task, in the total circumstances herein, is deemed an
abrogation of statutory mandate. Indeed, resolution of
the unfair labor practice issues may well prove to aid in
the ultimate disposition of all the issues presented by the
scenario of events. See NLRB v. Acme Industrial Co., 385
U.S. 432, 437 (1967).
3. Economic backdrop
The critical events must be vnewe4 in the context of
the relevant economic conditions in the industry and, in
particular, regarding the Employer. It is a necessary in-
gredient' of the assessment of the Employer's economic
defense.
Paul Anderson (not a relative of the Employer's vice
president R. J. Anderson or of its group vice president,
W. L. Anderson), himself president of an independent
consulting firm in the paint industry, testified regarding
the economic climate within that industry. He testified
without substantive contradiction. The essence of his tes-
timony follows.
In 1962-1963, DuPont Corporation entered the paint
market with a product called Lucite. To stimulate
demand for its product, Dupont, encouraged its sales at
approximately one-half of the normally expected retail
price. At that time, Sears controlled about 11 percent of
the national retail business. In order to survive, all paint
companies were required to cut their prices. Sears
changed its merchandising philosophy to increase its
share of the do-it-yourself market. By 1977, Sears con-
trolled 25 percent of the exterior, and 26 percent of the
interior paint market. However, in 1977, the cost of raw
793
materials had increased more than in the combined previ-
ous 10 years. This situation created an erosion of profits.
Anderson testified that the combination of price pressure
from raw materials and increased resistance by retail
dealers to consumer price rises resulted in a drop in paint
industry profits from 4.9 percent to approximately 2.9
percent.
Thus, from about 1977, the paint industry was charac-
terized as a no-growth industry, and the do-it-yourself
paint market was "very competitive." After 1979, there
was a decrease in units of paint sold. This was attributed
to heavy inflation, high rises in raw materials costs, the
fact the nation was moving into recession, intense com-
petition among manufacturers, and a reduction in the
number of surfaces requiring paint. Concurrently, retail
dealers maintained a so-called magic price of $9.99 per
gallon of top quality paint. A retail charge of $10.99 per
gallon brings a precipitous drop in sales volume.
The instant Employer, according to Anderson, "pro-
vided Sears with the highest quality paint at the lowest
possible price so that Sears can continue to increase their
market share in the paint industry."
The do-it-yourself paint market did not realize the full
effect of the national economic recession until the second
6 months of 1981.
4. History of this, case
February 4, 1982: The Employer announced its deci-
sions to close Pennsauken. All employees at that facility
were laid off. However, approximately 21 employees
were recalled on February 16 and worked until on or
about April 28 to wind down operations.
March 4, 1982: The Union filed its grievance discussed
above.
March 31, 1982: the Union filed an injunction action in
the U.S. district court to prohibit the Employer from re-
moving raw materials and finished products from the
Pennsauken facility and otherwise disposing of its per-
sonal and real property from that plant. The injunction
petition also requested, pending arbitration, reinstatement
of all 'Pennsauken employees and resumption of the
Pennsauken operations.
March 22, 1982: A district court, hearing was conduct-
ed on the injunction petition.
March 31, 1982: District Court Judge Brotman issued
a decree which directed the parties to arbitrate and,
pending that proceeding, enjoined the Employer from re-
moving or selling machinery, equipment, and real estate,
except raw materials and finished products. The court
declined to order reinstatement, of employees and re-
sumption of Pennsaken operations.
April 9, 1982: The instant unfair labor practice charge
was filed.
May 14, 1982: The arbitration hearing was conducted
on the Union's March 4 grievance.
May 26, 1982: The Regional Director for Region 4 of
the Board issued a letter administratively deferring fur-
ther processing of the instant charge, pending the out-
come of the arbitration.
August 16, 1982: The arbitrator issued his initial opin-
ion and award, as described above. (The remaining chro-
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nology relative to the arbitration is also described
above.)
September 10, 1982: The Regional Director wrote the
parties. He advised them that because the unfair labor
practice issues were not litigated or addressed in the ar-
bitration award, further deferral of action on the instant
charge was unwarranted. The parties were thus informed
that the investigation of the instant charge was being re-
newed.
March 4, 1983: The instant complaint was issued.
March 7, 1983: The Regional Director petitioned the
U.S. district court for an injunction against the Employer
selling, transferring, or otherwise disposing of the Penn-
sauken plant or any equipment, machinery, or supplies
located at that facility and to maintain such facility,
equipment, and machinery in good working order, pend-
ing the disposition of the instant proceedings.
April 5, 1983: The Regional Director and the Employ-
er entered into a consent injunction which by its terms
expires on July 31, 1983, with certain provisos relative to
possible extensions.8
B. The Instant Dispute
1. Clerical and laboratory campaign-credibility
resolutions
As previously stated, the unfair labor practice allega-
tions involved in this case have their genesis in the 1981
effort of the 18 clericals and technicians to select the
Union as their collective-bargaining representative.
Specifically, the union president, Joe Yoeman, met
with the Employer's Pennsauken personnel manager,
Frank Lepore, on May 11. Yoeman orally requested the
Employer grant recognition to the Union as collective-
bargaining agent of the clerical and technician's unit.
The request was denied. At Lepore's request, Yoeman
presented the employees' authorization cards to Lepore
for examination. Lepore copied the names of employees
who had signed the cards and Yoeman left. The parties
later sent letters confirming the request and denial.
Lepore promptly reported the Union's request to John
Curran, the corporate director of personnel relaitons.
Curran, who had been scheduled to be in Columbus,
flew to Pennsauken instead. On May 13, Curran met
with all of Pennsauken's supervisors. On the same day,
Curran also conducted another meeting with the supervi-
sors, managers , and exempt salaried employees of Penn-
sauken's office and laboratory unit. Curran apprised them
of the Union's recognition request and the Employer's
rejection. He discussed how they should conduct them-
selves during the organizational campaign. He advised
the attendees of prohibitions on employer conduct. He
told them the Act proscribed threats, interrogation,
promises, and surveillance. He gave examples of these
subjects.
Curran said the Employer would campaign against
unionization. He cautioned that supervisors should do
8 In the consent decree the parties agreed to expedite the processing to
the instant case to final disposition In that regard, it is noted that none of
the parties requested any extension of time in which to file their posthear-
ing briefs The briefs were received, as originally scheduled, on May 31,
1983
nothing to violate the law. He warned supervisors not to
question employees. He said no supervisor should play
favorites or discriminate against anyone. However, he
encouraged supervisors to convey their personal feelings
and that the Employer's view was that unionization of
the clericals and technicians was unnecessary.
Also, on May 13, Curran testified he received a tele-
phone call from Union Secretary-Treasurer John Morris.
According to Curran,9 Morris said the Union literally
was forced to make the recognition demand because the
clericals and technicians had threatened to seek out a dif-
ferent union, after the Union had earlier turned them
away several times. Curran testified Morris claimed the
clericals and the technicians were concerned about infla-
tion and job security.
Finally, on May 13, Plant Manager Schwerd briefly
addressed all salaried employees, including the clericals
and technicians. He read a prepared statement . He said
that "the Company does not believe further unionization
of employe[e]s at this facility is either in the employe[e]s
best interest or in the Company's best interest... .
Within the framework of the law, the Company fully in-
tends to resist this . . . and to prevent any such further
unionization . As plant manager I would make this addi-
tional, personal, note. That given an opportunity, free
objectively, that each of you will also conclude that fur-
ther unionization here ' at Pennsauken is not necessary,
and not wanted by salaried employe[e]s."
Curran returned to corporate headquarters. Lepore
traveled there. The two of them met with Industrial Re-
lations Vice President Barreiro , Chemical Coatings Vice
President W. Anderson, Director of Manufacturing R. J.
McQueen, and Labor Relations Attorney H. M. Berman.
They discussed the Employer's campaign strategy.
Curran was to be in charge of the campaign. Curran said
it was unlikely the Employer's would succeed. The offi-
cials agreed Curran speak to the unit employees. Curran
credibly testified there was no discussion concerning the
possibility of closing the Pennsuaken operations.
The General Counsel produced the Union's chief stew-
ard T. Magorry who, in part, testified that on May 11 or
12 he spoke with Lepore. According to Magorry,
Lepore asked him if he knew anything about the union
drive. Magorry testified he answered he knew nothing
about it. Magorry claimed Lepore said he "heard" the
Union may have 16 cards and that it would be "a bad
day" for everyone if the Union won an election. Ma-
gorry also testified Lepore asked who started the Union
and he responded he had no idea.
Lepore presented a more comprehensive version of
that conversation. While Magorry created an impression
he had been called to Lepore's office for the interroga-
tion, Lepore testified, without contradiction, 10 he and
Magorry spoke one to three times daily to head off prob-
lems before they became grievances. Lepore acknowl-
edged he and Magorry discussed the clerical and techni-
cian's organizing effort. Lepore testified Magorry said
the production and maintenance employees' did not want
9 Morris did not appear as a witness
10 Magorry was not called as a rebuttal witness, although the General
Counsel presented other rebuttal testimony.
DESOTO, INC. 795
the Union to represent the clericals and technicians
during their initial representational effort in 1970 and
that the fact the clericals and technicians had crossed the
picket line in 1970 created bad feelings among the pro-
duction and maintenance employees.
Lepore unequivocally denied it was he who made the
"bad day" remark. Lepore attributed that comment to
Magorry. Thus, Lepore testified it was actually Ma-
gorry, not Lepore, who commented, "We've made a lot
of progress since then [the time the Union gained recog-
nition and a contract for the production and maintenance
employees.] If they [the clericals and technicians], it's
going to be a bad day for all of us."
The General Counsel asserts the "bad day" comment
which he attributes to Lepore reflects the Employer's
antiunion hostility and should be considered an element
of unlawful motivation. Resolution of this issue involves
determining the relative credibility, of Lepore and Ma-
gorry.
My credibility resolutions regarding these individuals,
as with the additional credibility resolutions required
hereafter, are based on my observation of witness de-
meanor, the weight of the respective evidence, estab-
lished or admitted facts, inherent probabilities and infer-
ences which may be reasonably made from the record as
a whole. Northridge Knitting Mills, 223 NLRB 230
(1976); V & W Casting, 231 NLRB 912 (1977); Gold
Standard Enterprises, 234 NLRB 618 (1978).
Credibility resolutions and further recitation of facts
do not involve discussion of every bit of evidence or
every argument of counsel. Nonetheless, I have consid-
ered all such matters. Omitted material is considered ir-
relevant or superfluous. To the extent that testimony or
other evidence not mentioned might appear to contradict
the findings of fact or credibility resolutions, such evi-
dence has not been overlooked. Instead, it has been re-
jected as incredible or of little probative value. Walkers,
159 NLRB 1,159, 1161 (1966).
I credit Lepore's denial of the "bad day" "remark. In
general, Lepore was candid, forthright, direct, compre-
hensive, and sure during all of his testimony. Magorry
was less precise and exhibited a tendency to cast his tes-
timony in a light most favorable to the General Counsel
and the Union. In the latter regard, I have noted
McGorry's emphasis on the point that he'had been called
to Lepore's office to discuss the organizational campaign.
Lepore's full description of the conversation is logical. It
is more likely that Magorry would have alluded to dis-
cord created by a group of employees who did not
honor the Union's picket line now becoming affiliated in
that same labor organization, than Lepore making the
"bad day" remark in the context of what even Magorry
declared was an harmonious labor-management relation-
ship between them and between the Employer and
Union. Moreover, there was no effort to have Magorry
(on rebutal) refute Lepore's version of their conversa-
tion.
]Finally, I note the conversation took place either on
the same day recognition was requested or on the fol-
lowing day. ' Magorry was unsure. If it occurred on the
latter date, it is not probable that Lepore would have
questioned Magorry, as Magorry claimed. It is unrefuted
that Lepore saw the authorization cards and copied the
names of employees who signed them. In this context
and, given the good relationship which existed between
him and Magorry, it is difficult to believe Lepore would
have said he "heard" 16 cards had been signed. That re-
lationship is more likely to have exuded greater frankness
from Lepore.
On the foregoing, I conclude Lepore did not make the
"bad day" comment asserted by the General Counsel.
Therefore, I find no evidence of unlawful motivation
contained in this conversation between Lepore and Ma-
gorry.
I- now return to the sequence of events. On May 20,
Curran visited the Pennsauken facility. He conducted
two meetings. The first meeting was with all clerical and
technicians' supervisors as well as nonsupervisors,
exempt and nonexempt salaried personnel . He advised
them of the recognition demand and the Employer's re-
sponse . He told them the next probable step is the filing
of a representation petition, to be followed by a hearing.
He said the -Employer did not feel a union was needed
among the clericals and technicians because, as salaried
personnel, they already were covered by the same poli-
cies and general benefit plans and programs applicable to
other salaried employees within the Company. Curran
commented that if the Union came in, those benefits
would become subject to negotiations. He -asserted the
Employer would negotiate 'in good faith but that it
would have to make a conscious departure from the tra-
ditional handling of the various benefits. Each would
have to be justified. Nothing would be guaranteed or
automatic regarding wages, pension, and other benefits.
Curran said he believed the problem is one of comrtiuni-
cation. He speculated that the Employer may not have
done a good job listening in the past. He asserted the
Company is a good employer, and has competitive pro-
grams. Curran advised the employees that signing a card
does not commit them to voting for the Union, that they
are, entitled to a secret-ballot election, and that they
could vote their own conscience. At the end of the meet-
ing, he asked for questions.
Curran's second meeting on May 20 was with a group
of laboratory employees. He repeated his remarks made
earlier that'day to the office personnel. There was some
discussion concerning job security. It centered around
the Employer's reallocation of work of its industrial
products in 1977. At that earlier time, the Employer had
reallocated industrial paint production from Pennsauken
to Garland, Chicago Heights, and Columbus. It also reas-
signed its Sears ''stores for distribution of consumer paint
from Pennsauken to Columbus and Greensboro. Then,
the' Employer asserted the right to reallocate in article
XXVI' of the production and maintenance agreement. As
a result, a total of 43 employees were laid off. The' Em-
ployer and the Union engaged in effects bargaining with
respect to the layoffs.l i
'r The Employer urges the Union's actions in 1977 , are evidence that
the Union waived its right to challenge the February 4, 1982 reallocation
of the Pennsauken work. I consider this waiver argument part of the
issues now pending before the Third Circuit Court of Appeals . There-
fore, I shall not address this contention of the Employer any further.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 28 and 29, 1981 , Curran and Lepore (togeth-
er) met with small groups of clericals and technicians.
Two such sessions were held on May 28 . The first in-
cluded employees B. Petre, D. Eaves, J. Cooper, and E.
Tirendi.12 Curran told them the Employer believed their
unionization was unnecessary . He said he was there to
explain the Employer's position and to answer any ques-
tions they had . He then told these employees the same
things he told the personnel to whom he spoke on May
20.
The second session on May 28 was with unit employ-
ees T. Anderson, D. Smith, D. Keys, M. Cheng, and B.
Pickard . 113 Curran credibly testified he made the same
general comments as during the first session on that date.
T. Anderson and Keys said they were concerned with
job security, noting that morale diminished when the in-
dustrial paints reallocation of 1977 resulted in lost jobs.
Curran responded by saying , in effect, he did not under-
stand how a collective-bargaining agreement could ame-
liorate their concerns because the 1977 layoffs involved
both salaried and hourly employees , and that the latter
were part of the contractual bargaining unit of produc-
tion and maintenance employees.
Three meetings between Curran, Lepore, and the cler-
icals and technicians were held on May 29 . Employees
R. Wilson and P. Olszewski attended the first session.
What Curran said is disputed . Curran testified he made
the same opening remarks as he made to the employees
on May 28 . He reminded them that salaries and benefits
would be subject to negotiation . According to Curran,
Olszewski raised the issue of plant closing . Curran testi-
fied Olszewski said she got an impression the plant
would close if the Union got in and asked if this were
true . Curran said it was not. He explained plants are
closed for economic reasons and that the Employer had
closed both union and nonunion plants. Curran un-
equivocally denied that he said the Employer intended to
close , that the organizing effort threatened the Company
in any way, that he offered to correct grievances or
problems , and that he raised the issue of plant closings.
Olszewski testified, but was not questioned about this
session by the General Counsel or the Union. During
cross-examination , the Employer 's counsel asked whether
she attended . Olszweski acknowledged she had been
present . No party asked Olszewski to describe what oc-
curred at this meeting.
Wilson testified that Curran said he was there to "find
out what our grievances were and why we thought we
needed a union." (Emphasis added.)
The General Counsel asserts the Employer's unlawful
motivation is shown by Curran 's having unlawfully solic-
ited grievances and improperly interrogated Olszewski
and Wilson . I find Curran's version more reliable than
Wilson 's. Wilson's direct testimony was presented in con-
clusionary terms . She was less precise than Curran. She
admitted , during cross-examination , Curran may not
have used the word "grievances ." In other respects to be
noted below, Wilson was more generalized and apparent-
ly confused as to what occurred and how many meetings
12 None of these employees appeared as a witness.
13 None of these employees was called as a witness
she attended with Curran . Wilson admitted her recall of
events was poor . In contrast, Curran was direct, sure,
precise, comprehensive , and candid in rendering his ac-
count of this meeting.14
Wilson's testimony must also be viewed in the context
of the total absence of similar testimony from Olszewski.
The General Counsel carefully adduced corroborative
testimony from all other employee witnesses produced
by him who were present together during the various al-
leged incidents . I view the failure to have Olszewski
confirm Wilson's account of this session a factor , though
not dispositive, to be properly considered in evaluating
the respective credibility of the participants in this meet-
ing. There was no effort to challenge Curran's testimony
that Olszewski, not Curran, raised the issue of possible
plant closure or his denials that the - Union's organizing
effort was a threat to the Employer.
In all of the above circumstances I conclude there is
no credible evidence to support the General Counsel's
contention that during the conference attended by Ols-
zewski (and which Wilson thinks she attended), Curran
expressed unlawful motivation.15
Curran's and Lepore 's second meeting on May 29 was
with unit employees C. Fox and B. Watts.
Fox and Watts both testified that near the meetings
end, Curran said the Employer would close the Pennsau-
ken plant before it would let the employees go union.
Though Watts claimed he "told [other employees] what
the meeting was about," he did not specifically testify
that the alleged threat to close was relayed to them. In-
stead, Watts expressly testified that he and Fox did not
discuss the alleged threat with each other at any time.
Watts, alone, during direct examination also testified
that Curran "wanted to know why we wanted a union"
and that "he [Curran] could do things to correct" the
bases of employee dissatisfaction.
Curran unequivocally denied asking Fox and Watts
why they wanted a union, threatening to close , and of-
fering to correct grievances. Curran testified he knew
Fox was a leading union organizer and had signed a
card . Curran testified he made the same general com-
ments to Fox and Watts as he did in earlier meetings
with other employees.
Fox and Watts , according to Curran , talked about
their personal problems. Fox accused the Employer of
lying to him . Fox said he had been placed in the labora-
tory temporarily and that he would be returned to a
14 I found Curran generally a credible witness The elements enumer-
ated which lead to his conclusion will not be repeated below when dis-
cussing other testimony against which his must be assessed I have also
taken into account the contents of his personal notes and have accorded
them some, but not dispositive, weight in my credibility resolutions
Those notes substantially support his oral testimony
15 Wilson testified she was present at a second meeting which was also
attended by employees Harris and Morrow, to be described below. The
Harris-Morrow meeting was on June 5. Neither of them placed Wilson
with them Yet, the substance of Wilson's testimony is similar to the de-
scription of Morrow and Harris . The confused situation is exacerbated by
the failure to have Olszewski relate anything said when (and if) she and
Wilson were together 0lszewski apparently was not with Wilson. Ols-
zewski's testimony (described below) only refers to a meeting between
her and Lepore alone . There is simply too much confusion surrounding
Wilson's testimony to make her a reliable witness compared to Curran.
DESOTO, INC.
former supervisory job in the production and mainte-
nance unit. Also, Fox noted that when the industrial
paint was reallocated in 1977, senior people lost their
jobs and, according to Curran, Fox said that is why he
expected the clericals and technicians to elect the Union.
According to Curran, Watts commented that the Em-
ployer was going downhill, and that in a rush to become
productive the office and laboratory employees had been
neglected and the price the Employer must pay was
their unionization. Watts also complained that a change
in plant managers decreased employee morale. Also,
Watts said he had no great love for a union, but that his
pay had fallen behind and he had been moved to the lab-
oratory from the production area and watched the pro-
duction employees make more money than he did.
I find it improbable that Fox and Watts would not
have spoken to one another about the alleged threat had
it actually been made. There are other deficiencies in
their testimony. The descriptions of the threat vary.
Watts claimed Curran referred to the closing as neces-
sary to prevent a "precedent," while Fox said Curran re-
ferred to the closing as a means to prevent the employ-
ees from "going union." Also, Fox did not at all mention
the alleged interrogation and promises to correct griev-
ances which Watts attributed to Curran. Both Fox and
Watts attempted to explain these variations by indicating
that the attendees had 'engaged in separate, simultaneous
conversations. If this were true, then it is difficult to un-
derstand how both of them were able to hear Curran's
threat. In this context, I consider their, efforts to explain
the selective character of their testimony a self-contra-
diction.
Fox impressed me as seeking to, shade his testimony in
a light most favorable to the General Counsel' s cause.
He acknowledged he looked for hidden microphones
upon entering the conference room, he was a prinicpal
union protagonist on behalf of the clericals and techni-
cians organizing drive, and he was smarting from the
Employer's failure to return him to a supervisory posi-
tion in production after an illness. Normally, I would not
discredit an alleged discriminatee simply because of his
self-interest in the outcome of litigation. As to Fox, I am
persuaded that his interests went beyond customary prej-
udices. They were more deeply rooted and apparently
bent to aid his cause.
As to Watts, my, analysis of his cross- examination re-
flects responses which conform to a good portion of
Curran's own account of the meeting.
On balance, I fmd Curran's more direct, comprehen-
sive, and forthright testimony more reliable than Fox's
and Watts'. Accordingly, I fmd the preponderance of
credible testimony does not provide probative evidence
of unlawful motivation during Curran's meeting whith
Fox and Watts.
The third meeting on May 29 among Curran and
Lepore; and employees was with J. McLaughlin, B. Tom-
linson, and K. Fisher. None of these employees testi-
fied. t 6 Curran credibly testified that during this meeting
16 In assessing Curran's credibility, I have considered that there is no
assertion Curran and Lepore made any statements tending to show un-
lawful motivation to any of the employees with whom they met during
797
he made the same general comments as in earlier meet-
ings with employees and that there was no discussion
concerning plant closing, solicitation, or resolution of
grievances and no statement that the organizing effort
was a threat to the Employer.
Curran again met with certain employees on June 5.
Lepore again was with him. They spoke with employees
V. Morrow and L. J. Harris.
Both of these employees testified they met twice with
Curran. During the first meeting, Harris claimed Wilson
and Plant Manager Schwerd were also present. Morrow,
however, omitted Wilson and Schwerd from her descrip-
tion of the attendees at the first session.
According to Harris, Curran analogized the organizing
effort to the then recent baseball strike. Harris claimed
Curran said the 18 employees organizing were taken by
the Employer as being a strike threat. Morrow testified
the baseball discussion occurred at the second, not the
first, session. Moreover, Morrow expressly claimed she
did not recall Curran using the word "threat." Morrow
asserted, "from what I got out of his conversation was
that the 18 employees at Pennsauken was a threat to the
rest of the Company."
As to the second meeting, Harris identified those
present as including Morrow, Curran, and Lepore.
Morrow, on the other hand, , testified Schwerd and
Wilson also were present. Harris testified that Curran
said the 18 clericals and technicians were a threat and if
the employees had problems, they could talk to manage-
ment about them. -
Curran recalled meeting with Morrow and Harris on
June 5. He claimed he made the same opening comments
as to all other employees. Curran testified that Morrow
and Harris complained they were not paid enough
wages; Morrow said the Company discriminated against
women in job opportunities and that the pension was not
good. Harris agreed. Morrow complained about supervi-
sors doing unit work.
Curran testified he only listened to the complaints. He
unequivocally denied saying that the Employer viewed
the organizing as a threat, that he used' the word
"threat," that the Employer was concerned with the
impact of this organizing, that he was there to solicit or
correct grievances, and that there was any discussion
concerning closing.
The testimony' of Harris and Morrow is patently con-
fusing. What is clear is that there is a diversion between
them as to whether Curran claimed the organizing effort
was viewed as a threat. (This comment if made is urged
by the General Counsel as evidence of unlawful motiva-
tion.) Morrow's total failure to recall that Curran used
the word "threat" casts serious doubt that it was said.
Indeed, Morrow's cross-examination reflects the concept
of a threat was derived 'purely from her own conjecture.
Additionally, Morrow admitted she had not reported the
threat to Union Attorney Brainard who interviewed her
their campaign, but who this decision indicates did not testify. There is
some, but not dispositive, evidence to negate the General Counsel's con-
tention (made in the brief) that the Employer, through Curran, engaged
in a "systematic" effort to make antiunion threats and statements to the
unit employees
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and prepared her pretrial affidavit. In view of Curran's
denial that he used the word and my overall impression
of his credibility, I find he did not make the remark at-
tributed to him by Harris.
Curran testified that he also met with unit employees
R. Lagerman and D. Smith in June.17 Curran testified
that he opened the session with the same general com-
ments regarding organizing as with other employees. He
unequivocally denied saying the Employer was threat-
ened by the organizing, threatening to close, asking for
grievances, and asking why either of them wanted a
union.
Lepore separately is asserted to have made a statement
indicating the Employer's 'unlawful motivation. Thus,
Olszewski testified that she and Lepore spoke about the
Union a week or two before the July 9 election. Ols-
zewski testified that she went to Lepore to discuss the
rumors she heard that the plant could close and possibly
move to Florida. Olszewski first testified Lepore told her
the ' plant could close and the - Company could take care
of her if she did not sign an authorization card "or if I
voted for the Company or against the Union. It's been a
long time." (Emphasis added.) Then, still during direct
examination, Olszewski testified, "I asked if something
like this [closing and moving] could happen and he
[Lepore] said it could." According to Olszewski, she and
Lepore then discussed her position as sole support of her
household. She first stated - it was she who raised the
issue of her as a sole support, but later in her direct ex-
amination and after being visibly prodded by counsel for
the General Counsel changed her testimony to state it
was Lepore, 'not she, who raised that subject. Olszewski
further testified Lepore reminded her she had only one
"paycheck." Finally, Olszewski testified Lepore said she
would be protested if she voted for the Company.
Lepore acknowledged he had a private conversation
with Olszewski. He testified she claimed she heard an
"awful lot of rumors" about the plant closing if the
Union won. Lepore testified he responded, "that's not
going to happen. Desoto won't close if 18 people
become unionized. We already had some 80 people in
the Union." According to Lepore, Olszewski then com-
plained to him about unfair treatment by her supervisor.
Lepore unequivocally denied saying anything regarding
what would happen if the employees voted for the
Union. Lepore did not recall using the word "paycheck"
during this conversation.
Earlier in this decision, I have found Olszewski's testi-
mony to be confusing and, by her own admission, admit-
tedly based on a vague recollection and more a narrative
of her personal impressions,of what was said than a re-
flection of the words used. Olszew'ski's testimony about
the Lepore incident, when viewed in the context of the
General Counsel's prodding to have her state it was
Lepore, not she, who raised the subject of plant closing
during their private meeting, is self-contradictory. More-
over, the italicized portion of her testimony quoted
17 Lagerman testified on the issue of "chilling effect" of the closing.
That matter will be discussed below: He was not questioned regarding
his meeting with Curran. D. Smith did not testify.
above is tantamount to an acknowledgment of the impre-
cision of her testimony due to the passage of time.
In contrast to this, I have already commented on my
view of Lepore as a witness . Those observations are in
stark contrast to the responses and demeanor of Ols-
zewski. As between them, I credit Lepore's denial that
he threatened to close the plant during his conversation
with Olszewski. This conclusion is logical. As will be
shown below, the decision to close was not made until 6
months after this conversation, was made in the Employ-
er's headquarters city, and Lepore was not a party to it.
In view of this, and the careful instructions to avoid
threatening remarks conveyed to him in May, coupled
with the amicable relationship Lepore personally en-
joyed with union representatives , it is reasonable to con-
clude his conversation with Olszewski occurred in the
manner described by him. Thus, I find no probative evi-
dence of unlawful motivation flows from Lepore's con-
versation with Olszewski.
Other motivational evidence was offered by the Gen-
eral Counsel through V. Morrow and L. J. Harris. They
implicated then Assistant Warehouse Superintendent J.
Adams and Plant Manager Schwerd.
A regular part of Adams' job was to make daily visits
to the data processing room where Morrow and 'Harris
worked. Morrow, using generalizations , testified that
after the Union requested recognition Adams was
"always talking' about the same thing," to wit, "that it
wasn't necessary to go union and it was better ways to
solve our problems, and the possibility of the plant clos-
ing if we did go union, and . . . [Harris] . . . said why
would they want to close our place when we're doing so
well, and . . . [Adams] . . . said Greensboro, North
Carolina could handle our work load."
Morrow further testified that on election day she
heard Adams "talking about the same thing, not going
union, and the possibility of plant closing, and that he
had seen it happen at a place where he had worked, and
the people were crying and holding on to their machin-
ery as they were dragging it out." According to
Morrow, Schwerd entered the room during Adams' al-
leged comments and Schwerd smiled, nodded in agree-
ment, but said nothing.
Harris, in abbreviated form, merely testified Adams,
frequently asked her, "why did we have to sign up for a
union." And said the employees did not need a union,
because they could always talk to management.
As to the election day incident, Harris testified Adams
said the employees did not need a union, the plant could
possbily close, the work could be -done in Greensboro,
and that he had worked in a plant where "people were
hanging onto the machinery when it closed." Harris then
testified Adams said nothing else . However, after consid-
erable leading, counsel for the General Counsel elicited
Harris' testimony that Adams also said the employees at
the plant which closed were "crying."18
Harris also testified that after the employees signed au-
thorization cards, Schwerd, who formerly had been
friendly, never spoke to the employees.
18 This leading apparently was designed to corroborate Morrow.
DESOTO, INC.
During cross-examination , Morrow recanted some-
what, admitting she was not sure Adams mentioned
Greensboro during the election clay conversation, but she
believed Adams twice mentioned Greensboro at some
time.
During her cross-examination , Harris acknowledged
she had been friendly with Adams. Harris' pretrial affida-
vit contains the alleged closure comment, but omits any
reference to Greensboro. Nonetheless , Harris remained
steadfast in her recollection that Adams had suggested
the employees ' work could be done in Greensboro.
Harris was self-contradictory and confusing . During her
direct testimony, Harris claimed Adams stopped convers-
ing after the authorization cards were signed. Next,
during cross-examination , Harris insisted that Adams
mentioned Greensboro on many occasions during the
same period of time.
Adams was no longer employed by the Respondent
Employer when he testified. He had been laid off as a
result of the Pennsauken closing . He agreed he and
Harris had been friendly and often engaged in conversa-
tion while he was waiting in the data processing room to
pick up his work. Adams candidly acknowledged that
their relationship had cooled during the campaign. Gen-
erally, Adams testified, Harris would make derogatory
remarks about the Employer and he would take the Em-
ployer's side. He agreed that he frequently opined unions
"are not productive. They don't provide jobs. Companies
provide jobs."
Adams gave a rather comprehensive account of his
election day discussion , although he admitted to recalling
only "some of it." Thus, he claimed Harris and Morrow
were unusually jubilant that day. According to Adams, it
was Harris who opened the conversation, saying "today,
is the day," Adams said , "I hope you considered what
you're about to do." When Harris answered she did,
Adams claimed he said , "[U]nions don't provide jobs.
Companies provide jobs. If the Company decides to-or
if the Company closes the plant„ what are you going to
do?" Adams testified Morrow answered , "We'll just have
to find another job."
Adams claimed he commented that Harris and
Morrow have good jobs because he had to interrupt
them from reading their novels to get them to complete
the work he was there to retrieve . Adams testified that
Schwerd was not part of the conversation and he
(Adams) did not know whether Schwerd was present.
Adams unequivocally denied he ever told Harris the
Pennsauken work could be done in Greensboro or that
the plant would close if the Union won the election.
As to the alleged conversations other than on election
day, Adams testified he and Harris discussed the organiz-
ing effort more than once. According to Adams, each
such conversation was initiated by Harris. Adams con-
ceded he spoke of his experience with unions at other
plants. According to Adams, he told Harris the salaried
employees of another employer of his had a union elec-
tion and they voted it down. Also, he claimed he told
Harris that at yet another employer where he had
worked, the company asked the union which represented
the employees for concessions during collective bargain-
ing. When the union would not accede , the employees
799
blocked the gates , trying to keep trucks from taking the
equipment . Adams reflected that unions can be "very
rigid , too rigid without considering ." Finally relevant is
Adams' testimony that he had asked Harris, " [W]hy do
you feel you need a union when you have a good job?"
Generally, I found Adams to be a relaxed, articulate,
forthright, careful , and deliberate witness. He testified he
was present when Curran presented the "do's" and
"don'ts" of campaigning . Adams ' demeanor persuades
me it is not likely he would have violated his instruc-
tions . He freely admitted relating his prior experiences
with unions and asking why Harris thought she needed a
union . In isolation , the latter question arguably comprises
unlawful interrogation . 19 The context of friendly conver-
sation, initiated by Harris, in the total circumstances
herein, in my view, dispels the requisite tendency to
coerce . The complete testimony of those involved in
these alleged incidents leads me to conclude that the
conversations were perceived by all participants as
person to person, rather than supervisor to employee. In
this connection, it is noted Adams exercised no supervi-
sory responsibilities over Harris and Morrow.
Additionally , I credit Adams ' denial he said anything
about Greensboro . The record reveals Adams first
learned of the closing on February 4, 1982 , together with
all rank-and-file personnel . It is improbable that he
would have made such a blatant reference in all the in-
stant circumstances.
I fmd Harris and Morrow prone to exaggeration and
self-contradiction . Their testimony, when superimposed
upon one another, reveals inconsistencies and exaggera-
tions which diminish their testimonial reliability.
In agreement whith the General Counsel, I find
Adams' admitted statements are expressions of antipathy
toward unions . They can be readily discerned as such.
Nonetheless, that conclusion must be balanced against
the setting and circumstances which I find exist here. In
the context in which the statements were made , they do
not bear a coercive tenor . They occurred during friendly
conversation initiated by one of the unit employees.
Adams was a low-level supervisor who clearly had no
role whatsoever in studying or making the decision to
close . Those tasks were conducted by higher manage-
ment officials, apd several months after the alleged im-
proper statements were made . Finally, Adams remarks
were made in a context otherwise void of evidence that
the Employer engaged in any other conduct which was
coercive.
In the foregoing posture, I fmd Adams' statements are
not sufficiently probative to support counsel for the Gen-
eral Counsel 's contention that he demonstrated the Em-
ployer's unlawful motivation during his discussions with
Harris and Morrow.20
19 There is no 8(a)(1) allegation regarding any statement alleged to in-
dicate unlawful motivation.
20 The General Counsel argues Adams' credibility is in doubt because
he acknowledged, during cross-examination , that when asked by a former
employee if he would testify on behalf of the Union, Adams asked how it
could benefit him In view of Adams' layoff and the plant having been
closed over a year at the time of the hearing, I find Adams' response
equally susceptible to the conclusion it was an expression of futility as it
Continued
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel argues that Schwerd's nodding
in agreement with Adams' alleged threatening comments
regarding what occurred at the movement of equipment
at the closed location of Adams' former employer
evinces the instant Employer's unlawful motivation. I
disagree.
Though Adams was not sure whether Schwerd was
present during the election day conversation, the record
shows he could have been there if Adams had been
facing away from the door. Nonetheless, Schwerd credi-
bly testified he was in his office during the time the
Adams' conversation occurred. It is not certain Adams
spoke of the closing on election day. Even assuming
Schwerd had been present, and nodded, when Adams
talked about the closing, that action is ambiguous. Even
Morrow testified Schwerd said nothing. In these circum-
stances, I reject the General Counsel's argument that
Schwerd's alleged nodding is coercive or that it serves
to demonstrate that a scheme to close the plant in Febru-
ary 1982 was already in progress as early as July 1981
and the Employer' s high management officials, such as
Schwerd, knew of such a plan at that earlier time.
Alleged evidence of unlawful motivation persists after
the election. Magorry testified in abbreviated fashion that
in August 1981 Lepore told him that "this thing will be a
lot worse than a strike," after commenting to Magorry
that if there would be a strike, the Union should conduct
it in good weather. Lepore admitted talking to Magorry
sometime after the election. According to Lepore, he
and Magorry "had a running joke" between them. This
involved Magorry quipping if "you guys can't agree on a
contract, if you're going to have a strike, let's have it in
the summer time so I can go to the shore, or I could
play, or I'd go on vacation." According to Lepore he re-
torted in a joking fashion, "[Olkay, I'll try and accom-
modate you." Lepore denied saying this could be a lot
worse than a strike.
On the basis of my earlier resolution of the relative
credibility between Lepore and Magorry, I accept and
credit Lepore's more comprehensive account of the al-
leged discussion. I find his version plausible, especially
given the relationship which existed between them, and
the absence of credible evidence showing Lepore had
any notion, in August, that the plant would be closed.
Yet another incident, in December 1981, is asserted by
the General Counsel to demonstrate unlawful motivation.
This alleged incident was provided by production em-
ployee M. Masny, a packing machine operator. Masny
testified that he and Schwerd spoke on the production
floor. According to Masny, Schwerd said production
was going well; that he requested corporate headquarters
to provide a new packing machine which provided in-
creased production capacity; and that he (Schwerd) was
after more business, but the "cockroaches upstairs are
causing me" trouble.21
is to the conclusion that he was soliciting some inducement for his testi-
mony This is particularly manifest from the description of the timecard
and unemployment line incident to be described below.
21 The clericals and technicians worked "upstairs," as did manage-
ment
Schwerd recalled having a discussion with Masny re-
garding acquisition of a new packing machine. However,
Schwerd unequivocally denied he referred to anyone as
a cockroach.
The General Counsel argues the reference to cock-
roaches, if made, "underscores the Employer's deep re-
sentment towards the newly organized bargaining unit
who were at the time still engaged in" contract negotia-
tions; and also claims that headquarters personnel "al-
ready was implementing its plans to discontinue-Pennsau-
ken production, and that Schwerd knew of those plans"
contrary to his assertion that he first learned of them in
January 1982.
During cross-examination, Masny was self-contradicto-
ry. Then, he testified, as appears in his pretrial affidavit,
he assumed Schwerd meant he had contacted headquar-
ters for the new machine. This was contrary to Masny's
direct, testimony that Schwerd expressly mentioned it
was the headquarters office to which he made his re-
quest. In these circumstances,, it is difficult to ascribe the
meaning desired by the General Counsel to Schwerd's
remarks. If it was not headquarters about which
Schwerd was talking, the basis for an inference of unlaw-
ful intent vanishes. Masny's self-contradiction makes it
questionable whether Schwerd involved the corporate
headquarters in his conversation.
Moreover, I find it unnecessary to decide whether
Schwerd referred to anyone as a cockroach. If he did so,
the application of the term is ambigous. Assuming it was
meant to apply to the clericals and- technicians, a fact
which is uncertain because Masny testified Schwerd did
not define the word, then it might mean that whoever
was responsible for authorizing new equipment was then
consumed in the ongoing negotiating process and it was
the latter company officials to which the term applied.
Also, as will be discussed below, certain of the Employ-
er's officials were then involved in the preparation and
consideration of the cost analysis studies which the Em-
ployer submits was the basis of the Pennsauken closing.
In such a milleu, I am unwilling to ascribe the sinister
meaning requested by the General Counsel to the "cock-
roach" comment if it had been made., Accordingly, I find
probative evidence of unlawful motivation derived from
the Schwerd-Masny conversation.
The date of Pennsauken's closing gives rise to another
assertion by the General Counsel that the Employer, this
time through Adams, revealed its unlawful antiunion mo-
tivation. Adams was standing near the timeclock as the
employees were punching out after the closing and lay-
offs that day. Production employees R. Kowatz and M.
Browna testified that as they 'walked by the timeclock,
Adams said, "I hope the .12 m-r f-rs starve to death."
(Twelve clericals and technicians voted for union repre-
sentation.)
Adams did not remember making that remark. Instead,
Adams recalled he was extremely upset at the time and
told production employees J. Carpenetta and T. Nien-
ault, in the shipping office that they "can thank the 12
people up front for" them not having a job. Adams fur-
ther credibly testified that no one had told him the union
election caused the closure and layoffs.
DESOTO, INC. 801
Carpenetta testified that, on February 4, Adams, in
effect, said it was those who voted for the Union who
closed the plant. The General Counsel apparently does
not refer to this testimony in support for his claims
Adams' comments reflect unlawful motivation.
Considering the state of confusion, dismay, and discon-
tent which pervaded the atmosphere on the closing date,
it is reasonable that memories (such as Adams') might be
obscured . Assuming, however, the said what Browna and
Kowatz ascribed to him, I reject the General Counsel's
contention that that remark constitutes evidence of the
Employer's unlawful motivation . I have already found
no credible or probative evidence exists to show Adams
had prior knowlege of the closing. In the total context of
this event, I accept Adams' explanation he was simply
giving vent to the emotionally charged climate which
then existed . I conclude the circumstances make it rea-
sonable to conclude, as I do, that if Adams made the al-
leged statement, it was merely an expression of personal
frustration.
The final shred of evidence asserted by the General
Counsel to show the Employer' s unlawful motivation
was presented by production employee F. Zabawa and
Nienault who testified they met Adams on an unemploy-
ment line on February 9, 1982. (Carpenetta also was
present, but did not testify as to what occurred on Feb-
ruary 9. Employee Schiffler also was present.)
Zabawa and Nienault testified they heard Adams say
he was there because of the 12 employees who voted for
the Union and that because there was a large group of
clericals and technicians in the Employer 's Illinois re-
search facility neither Sears nor the instant Employer
would put up for that group of employees having a
union.
During cross-examination Nienault said he thought
Adams was "just laying off steam," and that he told
Adams he (Nienault) thought the layoffs were caused by
a combination of factors, including economic conditions.
Zabawa during cross-examination said Adams ap-
peared bitter and that he (Zabawa) had only a vague
recollection . of what was said.
Adams testified that when he met the employees on
February 9,' it was they who blamed Schwerd for the
closure. Retorting, Adams candidly admitted he said
they could "thank those 12 a-- h-s no front for our
standing in this unemployment office." Adams claimed
this was his own opinion22 and that he had only been
officially told the closing was for economic reasons.
Only 5 days had elapsed between the closing and the
unemployment line incident . It is not likely the emotional
distress generated by the closing had yet dissipated.
Thus, on the basis I have concluded the timeclock inci-
dent of February 4, if it occurred as described by the
employee witnesses , contained no probative evidence of
22 The parties ' stipulation that Adams was in layoff status and not a
supervisor on February 9 appears to have been intended by the Employ-
er to provide the basis for arguing any remarks made on that date cannot
be imputed to the Employer . At the hearing , I reserved ruling on the
Employer's motion to strike Nienault 's testimony because Adams was not
a supervisor after the layoff In view of my disposition of the substantive
issue concerning Adams' postlayoff statements , a ruling on this motion is
moot
unlawful motivation, I make the same conclusion as to
the Adams' comments on February 9.
On all the foregoing , I find there is no credible and
probative evidence to demonstrate either that the Em-
ployer habored unlawful motivation or that it engaged in
a systematic program to defeat the employees ' Section 7
rights.
2. Postcertification negotiations
On July 29, after having been certified as the collec-
tive-bargaining of the clericals and technicians, the
Union sent the Employer a written request for certain fi-
nancial information as a prelude to negotiations . This re-
quest was customary. Submission of the information was
delayed because the Employer 's officials were engaged
in other pressing labor relations matters. Curran took
charge and the information was forwarded to the Union.
(It was during this delay that the Magorry -Le`pore con-
versation about a strike being called in good weather oc-
curred.)
On October 1, the parties met jointly for negotiations.
The Union presented its so-called master form contract.
The Union said it wanted a contract for the clericals and
technicians which tracked the terms of the production
and maintenance contract . The Employer resisted , claim-
ing it did not want a wall-to-wall unit . The Union con-
tended that would not be the case; that there would
indeed be separate agreements . The Union presented no
economic proposals that day. It wanted to negotiate lan-
guage first . The Employer asked for a complete propos-
al. The Employer claimed it was concerned about the
impact of these negotiations upon its other clericals and
technicians who were yet unorganized . The Union ac-
cused the Employer 's officials of evidencing a negative
change in attitude toward the clericals and technicians.
The Employer contended those complaints had no sub-
stance.
The parties met again on October 20, November 11
and 12 , and' December 10. On October 20, the Employer
indicated it would agree to the language of the produc-
tion and maintenance contract , except as to five clauses
which included seniority, stewards, supervisors perform-
ing ' bargaining unit work, subcontracting , and mainte-
nance of standards . The Union requested two changes
which were unacceptable to the Employer.
During November 11, the parties further discussed the
language changes in the disputed areas. On November
12, the Employer made a written proposal.
On December 10, the Union rejected the Employer's
November 12 proposal because the union negotiators be-
lieved it contained more changes than in the five disput-
ed areas . The meeting ended without agreement . (At this
time, the alleged Masny-Schwerd conversation took
place.)
The mediator who attended the December 10 session
attempted to schedule another session for January 4,
1982, but Curran was unavailable . The next bargaining
session was then scheduled for February 10. That session
was not held because the closing of Pennsauken inter-
vened.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concurrent with the negotiations just described, the
Employer was engaged in certain economic studies,
which it claims was the sole basis for making the deci-
sion to close.
3. The Employer's economic studies
The immediate studies conducted in 1981 by the Em-
ployer were a part of a series of studies it makes on a
recurring basis. To fully comprehend the events which
are asserted as the basis for the closing, it is necessary to
describe the nature and breadth of the Employer's pro-
duction capacity studies.
The Employer maintained a perpetual plan on capital
expenditures. The plan contains projections for 5 years.
It is kept current by evaluation studies which are made
at approximately 3-year intervals. The interim evalua-
tions result in revisions to the 5-year plan, as circum-
stances require. For purposes of this decision, the 5-year
plan will be considered synonymous with a strategic
plan. Short-range studies are also made. Their results
normally necessitate changes to the strategic plan. The
short-range studies will be referred to as tactical stud-
ies.23 In 1976, the Employer projected Sears' market
share of the consumer paint market would grow twice as
fast as the overall do-it-yourself paint market. Also, it ex-
pected a 10-percent growth rate in the Southeastern
United States for Sears paint. Late that year, the Em-
ployer decided to construct a new plant in Orlando. This
was done to alleviate the potential shortfall in paint man-
ufacturing and warehousing capacity. It was not until
early 1979 that the Orlando plant became operational.
Concurrently, the Employer instituted technological
improvements in its existing paint plants. Those improve-
ments resulted in production of an additional 3 to 4 mil-
lion gallons of paint per year between 1978 and 1981.
The Employer's most recent strategic plan covers the
period 1979 through 1983. That plan is dated June 28,
1978. Among the anticipated projects, the plan made an
assumption that if growth continued as expected, the
Employer would need to establish a new plant in New
England which "should be in production by 1982." Es-
tablishment of that plant was considered in order to
retain the Employer's self-determined level of 20-percent
excess production capacity to secure the Employer
against future growth and unexpected catastrophic
events in its existing plants. Because of the conditions de-
scribed immediately below, the Employer did not imple-
ment the New England expansion plan.
The Employer's optimistic forecasts contained in stud-
ies made in 1976, 1977, and 1978 became visibly errone-
ous in 1979. In 1977, the Employer produced its highest
gallonage volume in its history. That volume decreased 8
percent in 1978. In 1979, the volume further decreased .6
percent from 1978. By 1979, the Employer's actual pro-
duction totaled 32.1 million gallons of paint. Its strategic
plan had anticipated 1979 production would reach 39
million gallons. Thus, there was a shortfall of 7 million
gallons.
At that point, W. Anderson instituted a cost-control
program. The program was designated as plan C. That
plan resulted in cost reductions of $2.1 million.
Another cost reduction program was undertaken in
1980. That was designated plan Z. Concurrently, the
volume of gallons sold continued their decline. Thus, the
1980 volume was 28.4 million gallons, while the Employ-
er's projection for that year anticipated 40 million gal-
lons would have been sold. The decrease from 1979 to
1980 was 11.5 percent.
On July 9, 1981, the Employer's president, R. Missar,
issued instructions "to submit lean budgets" for 1982 op-
erations. He promulgated guidelines which were distrib-
uted to each plant manager.
During the time the production of numbers of gallons
and sales declined, the cost of raw materials required the
Employer to negotiate its largest single price increase in
1979. This negotiation raised its average selling price
18.9 percent effective in 1980. Approximately 16 percent
of the 18.9-percent increase was attributed to increases in
raw material costs. In order to maintain the $9.99 "magic
price" described above in section III,A(3), the Employer
absorbed the difference in costs, except for raw material
increases. Merchandise Director S. Mountsier testified
without contradiction that Sears continued its pricing
pressure on the Employer by requesting 1981 prices even
lower than those of 1979.
In 1981, that price reduction pressure continued. It re-
sulted in the Employer making price concessions of $3
million to Sears for 1982 prices.
Because the cost control programs (plans C and Z) ef-
fectively reduced costs to a minimum , the Employer
searched for other means of coping with the pricing
pressures. Plant budgets for 1982 were returned to plant
managers. Those managers were asked to recompute
them to effect even greater cost savings. The resubmis-
sions totaled $1 million in savings for consumer paint op-
erations. R. Anderson testified the Employer was "in se-
rious trouble . . . as far as profitability was concerned."
Further, he testified he believed the Employer had
excess capacity.24
W. Anderson conducted his study in late November
and early December 1981. He reported his results to R.
Anderson in mid-December. The study concluded that
closing the Pennsauken facility would result in $5 million
per year cost savings. The results were ordered reviewed
by the division controller and manufacturing director.
The study's accuracy was confirmed. A report to that
effect was made to R. Anderson in early January 1982.
Concurrent with the cost capacity study conducted by
W. Anderson, the Employer's vice president, D. Ber-
gren, was asked to, and did, engage in an impact study
of the chemical products division. In early January 1982,
Bergren reported that elimination of Pennsauken and
22 The term "strategic" and "tactical" studies are adopted from testi-
mony of the Union's expert witness Professor E Krendel He testified
that, within the industrial commercial community, strategic planning has
a "time horizon" of roughly 3 to 5 years, and tactical planning involves
short-range planning with "a time horizon of about a year."
24 The term "excess capacity" refers to the ability of the paint produc-
tion facilities to generate more gallons of paint than could be sold As
previously indicated, the Employer found it desirable to maintain a
normal excess capacity level of 20 percent to cover contingencies
DESOTO, INC. 803
consolidating operations at Joliet would, save approxi-
mately $850,000 annually.
In mid-January 1982, R. Anderson met with Missar.
They reviewed the conclusions of W. Anderson's and
Bergren's studies. They agreed Pennsauken should be
closed. They arranged to meet with key officers of the
Employer to discuss all implications of a decision to
close that facility. Shortly thereafter, Missar and R. An-
derson met with Vice President of Finance Lamely, Vice
President Barriero, and W. Anderson. They decided to
close Pennsauken if, according to R. Anderson, the Em-
ployer "could legally do so." A legal opinion was
sought.
On January 15, 1982, Attorney Berman met with
Missar, Barriero, and R . and W. Anderson. They asked
for his opinion. Berman reviewed the proposal and they
discussed the labor relations ramifications. Berman told
them it appeared the situation was governed by First Na-
tional because the closing appeared to him to be a basic
determination with respect to scope and direction of the
enterprise.
W. Anderson then met with the plant managers affect-
ed by the decision to close Pennsauken. He provided
them with copies of his study. He asked the managers to
review the study and report their views of its feasibility.
The managers responded they could absorb the volume
of production which would be reallocated to their plants.
Also, they reported the savings estimated in W. Ander-
son study were understated. They claimed the Employer
could save approximately $330,1000 more than Anderson's
study had anticipated.25
The Employer did not inform the Union it had under-
taken any of the studies and analyses mentioned above,
nor that closing of Pennsauken was under consideration.
On January 22, 1982,, Berman met with Curran, W.
Anderson, and some other employer officers. They re-
viewed all the studies and reports then discussed how to
notify the Union of the decision to close.
On-January 25, Berman and Curran met. They decided
to arrange a meeting with the Union . Berman called
Union Secretary-Treasurer Morris, told him he wanted
to meet with Morris and only one other person about a
"very important" matter. Berman did not disclose the
subject. Morris asked for the mediator to attend. Berman
reluctantly agreed. They tentatively arranged to meet on
February 1. Berman called the mediator. The meeting
was ultimately scheduled for February 4, because Morris
was unavailable on February 1.
4. The closing and subsequent bargaining
On February 4, 1982, the parties met. Curran and
Berman represented the Employer. The Union was rep-
resented by Morris, Recording Secretary J. Smith, J.
Sheehan, and clericals and, technicians negotiating team
members R. Wilson and C. Fox. The mediator was
present.
Berman began by reading a prepared statement. The
statement announced Pennsauken was being "permanent-
ly" closed, all Pennsauken, employees would be terminat-
ed, and all Pennsauken work would be allocated to other
of the Employer's plants . Specifically. the statement ad-
vised the Employer would "transfer the production of
paint to our plants in Orlando, Greensboro, Columbus
and Chicago Heights. Detergent production will be
transferred back to our plant in Joliet." Berman indicated
the closing would occur that day. -
Morris said he wanted the production and maintenance
stewards present because this matter involved the entire
employee complement. The meeting was briefly ad-
journed, and resumed when Union President Yoeman,
Lepore, and the production and maintenance stewards
arrived. Berman continued to read from the prepared
statement. He paraphrased the concluding portion. Eco-
nomic reasons were ascribed to the closing. The Union
was advised a cleanup crew would be recalled. Morris
asked to negotiate over such things as vacations, pension
withdrawal liability, severance pay, insurance, and trans-
fers.
Around 2:50 p.m. on February 4, Schwerd read an an-
nouncement to all employees telling them the plant was
closing . His statement directed the employees to clean
their lockers and go home.
On February 16, the parties met. The Union was ad-
vised 22 employees would be recalled to wind down the
operation. The Union made certain proposals regarding
the effects of the closure. It proposed severance pay, in-
surance continuation, benefits for early retirees, vacation,
transfers, and other matters. Concerning pensions, the
Union provided a letter which estimated the Employer's
withdrawal liability under the pension, plan.
On February 26, the parties met again. Each presented
several offers and counteroffers regarding effects of the
closing. The Employer presented a final offer. The
Union caucussed, returned, and rejected that offer.
As noted above, the Union grieved the closing in
March and the arbitration hearing was conducted in
May.26
On August 31, after receiving the arbitrator 's initial
award, the Employer informed the Union it was willing
to negotiate over the decision to close, and over its ef-
fects. On September 9, the Union responded it was avail-
able to negotiate.
On September 10, the Employer proposed, as to the
decision, that Pennsauken remained closed. By letter
dated September 14, the Union responded there was
nothing to discuss concerning the production and mainte-
nance unit, in view of the arbitrator's award. However,
the Union said it was prepared to continue negotiations
for a clerical and technician collective-bargaining agree-
ment.
On September 15 the parties met again . The Employer
again proposed to close the Pennsauken facility and keep
it closed. The Union responded it would not negotiate
the closing. But would negotiate for a contract covering
the clericals and technicians.
On September 20, the parties again met Each party
remained adamant in its respective positions.
21 This report, in effect, meant even greater cost savings to the Em- 26 The scenario of events of the arbitration and district court mvolve-
ployer than expected when the decision to close was made ment appears above. -
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 5, 1983, the Employer wrote the Union. It
claimed readiness to negotiate all outstanding issues. On
January 10, Union Attorney Markowitz responded. His
letter expressed confusion as to what the Employer was
willing to negotiate.
On January 11, the Employer advised it was willing to
negotiate both the decision and effects of closing.
On February 22, the parties met. Once again, the Em-
ployer proposed to keep the plant closed. The Union
asked what concessions or agreements were necessary to
induce the Employer to reopen the Pennsauken plant.
The Employer reviewed the asserted economic reasons
for the closing.
On February 28, the Union wrote the Employer re-
questing financial data pertaining to Orlando, Greens-
boro, and Columbus plants. This was asserted necessary
to permit the Union to analyze cost factors.
On March 3, the parties met. Some of the information
requested by the Union was provided. The remainder
was promised.
No other meetings were held. No witness could state
whether the Employer delivered the balance of the infor-
mation.
C. Analysis
1. The economic defense
As noted, the Employer contends the Pennsauken
plant was closed solely for economic reasons, unrelated
to labor costs.
The General Counsel argues the 1981 cost and capac-
ity studies were a subterfuge to disguise its discriminato-
ry motivation. He does not seriously challenge the statis-
tical accuracy of the studies. Instead, the General Coun-
sel interposes a series of other financial and statistical
data and events which, it is claimed, provide the basis
for inferring the economic defense is pretextual.
The Union joins in the attack mounted by the General
Counsel. In addition, the Union (in support of its LA
Marine theory) argues the substantial economic evidence
in the record clearly shows there is no substance to the
Employer's protestations that labor costs were not an op-
erative factor in the decision to close Pennsauken.
(a) The General Counsel, in effect, contends the Em-
ployer's studies were concocted to provide a defense to
this action. The thrust of this position is that the Em-
ployer's undeniably sound financial status belies depend-
ence and emphasis on cost savings.
Clearly, the Employer's sales, in the chemical coatings
division, increased from $262 million in 1981 to $278 mil-
lion in 1982. Missar, in the Employer's 1981 annual
report had declared consumer paint sales to be resistent
to recession. The record shows the Employer sold Sears
over 99 percent of the latter employer's paint require-
ments and that Sears is the Employer's largest single
stockholder. The General Counsel argues that these fac-
tors cast doubt on the Employer' s assertion that the stud-
ies were genuinely undertaken in response to pricing
pressures and that the Employer "really is not in danger
of losing its Sears account." I disagree.
P. Anderson, the Employer' s expert witness, credibly
testified that the advent of such things as aluminum
siding contributed to the competitive nature of the con-
sumer paint market and was a basis of his observation it
was a "no-growth" industry.
The excessively high increase in raw materials cost
and the "magic sales" price of $9.99 could only serve to
contribute to the feeling of insecurity of any producer. P.
Anderson's testimony showed the Employer's reputation
for producing paint of the highest quality. To maintain
that stature at a saleable market price, in the surrounding
circumstances, surely is a matter of grave concern for
any employer. In this context, Missar's opinion that the
consumer paint market is recession proof is neither reli-
able nor probative.
Moreover, Missar's statement is cited out of context.
Missar actually wrote "consumer paint sales tend to be
recession resistant." (Emphasis added .) He also wrote
that "the depth and duration of the current recession are
uncertain. DeSoto is hopeful that its 1982 sales and earn-
ings will surpass those of 1981 ." As noted above, his
hopes were fulfilled. That occurred, of course, in the
framework of the Pennsauken closing.
The totality of cicumstances persuades me that the
studies were a natural consequence of the Employer's ef-
forts -to_ fulfill Missar's expectations. Reduction of costs
and retention of market position are ingredients of profit-
ability. Even Professor Krendel characterized the Em-
ployer as a prudent economic forecaster. Thus, I fmd the
1981 studies show the Employer's consistent and histori-
cal efforts to maintain and enhance its market position.
Finally, there is little substance to an assertion that
Sears' stockholding in the instant Employer safeguarded
the latter's position. That argument ignores the evidence
that in 1978 Sears bought I million gallons of paint from
a different producer, not DeSoto. The contractual ar-
rangement between the Employer and Sears permits such
an event. The 1978 incident shows the Employer lived
with a very real threat it could lose Sears' business. Eco-
nomic reality dictates an imperative that Sears, and
indeed any other ' retailer, do business with manufacturers
who would sell its merchandise at a saleable price. In
this posture, I find little probative value in the Employ-
er's overall successful profit picture. The increased prof-
its between 1981-1982 virtually are irrelevant. -
(b) The General Counsel, in effect, contends there is
no evidence that the Employer possessed a known need
that it had been operating with excess production capac-
ity when it began the 1981 studies. The documentary
evidence shows that the Employer's production for Sears
during 1980-1982 increased from 28.4 million gallons to
33.5 million gallons. I have reported above that W. An-
derson felt that the Employer's production capacity had
increased to excessive amounts. He attributed this to the
acquisition of more efficient equipment and installation of
new production system.
I concede that when the 1918 studies began, the Em-
ployer had no hard statistics showing precisely to what
extent is production capacity had increased. Indeed, it
was not until the plant managers reviewed the initial re-
sults of the study that the Employer had full knowledge
of the extent of its increased production capacity. These
factors, however, neither support an argument the stud-
DESOTO, INC. 805
ies were contrived for illegitimate. purpose or that W.
Anderson's credibility is diminished.
No employer witness claimed the Employer knew the
extent of its excess capacity. That was precisely one
function of the study. The plant managers simply con-
firmed W. Anderson's conclusion, made in his initial
report of the study, that their excess capacity was such
that their plants could absorb the gallonage produced at
Pennsauken.27
The fact that more efficient operations generated in-
creased gallonage does not necessarily mean, as is im-
plied by the General Counsel's position, that the 20-per-
cent level of desirable excess capacity remained constant.
Whether that was true was an object of the studies.28
The record as a whole demonstrates the Employer's
continuing program of cost analysis. In the context of
the severe pricing pressure of the immediate 2 preceding
years, and the cost reductions already effected, it is plau-
sible and logical that the 1981 study would have been di-
rected to determining the extent of excess production ca-
pacity as well as cost factors. Accordingly, I find the
fact that the Employer's full knowledge of its capacity
was unknown to it before the study was completed has
no adverse impact on its economic defense.
(c) The General Counsel, in effect, claims the 1981
studies were illusory because they ignored and failed to
consider the Employer's profitability. 29
I agree all the evidence, especially documentary, fo-
cuses on cost reduction and savings. The oral testimony
shows managerial discussion revolved around those sub-
jects. There is no evidence of discussions regarding the
Employer's profits. Thus, the General Counsel is literally
correct. Nonetheless, I conclude there was no need to
explicitly address profitability.
Consideration of cost reduction and expense savings
are not conducted in a vacuum. Realistically, profits are
the goal of manufacturing operations in American indus-
trial life. Deliberations involving minimizing operating
costs and expenses inherently have maintenance and en-
hancement of profits as their objective. Excesses in oper-
ational expenses unquestionably diminish profits. Thus, if
a study shows, as did the 1981 study, that a condition of
excess production capacity was present, then profits
would diminish. I find no merit to the argument profit-
ability was not, considered.
In this regard, the General Counsel notes that the con-
clusions as to how much could be saved by closing
Pennsauken were reviewed for accuracy only in connec-
tion with that facility. No effort was made to engage in
similar reviews as to the other plants encompassed by
the study. Thus, the General Counsel's position implies
that the Pennsauken closing was predetermined. On this
27 In this connection, the record shows that after Pennsauken closed
no additional production and maintenance employees were hired at any
of the plants to which the work was allocated. Only two color house em-
ployees (clerical and technican unit), and two nonunit employees (an ac-
countant and warehouse superintendent) were added
25 Though R Anderson testified, "We recognized we had excess ca-
pacity," I decline to use that comment to hold there is an inconsistency
in the Employer's defense because his comment relates a conclusion
reached after he had seen the results of the study
29 As stated above, R. Anderson asserted he perceived the Employer's
"profitability" picture placed it in "serious trouble "
issue, W. Anderson credibly explained that the additional
studies were not warranted because the percentage of sav-
ings shown for each of the other locations vis-a-vis Penn-
sauken would have remained unaltered-only the dollar
amounts saved would have changed to show higher sav-
ings at each plant.
Also, the Genreal Counsel claims Professor Krendel's
testimony reflects DeSoto's cavalier and cursory ap-
proach to the 1981 studies. Specifically, Krendel testified
he would not have relied on the 1981 tactical study as
the basis for a decision to close Pennsauken, especially in
view of the Employer's "sophisticated" strategic plan-
ning . Krendel testified the following factors are normally
among those considered in deciding on a plant closing
and reallocation of its work: market share, demography,
transportation and communication networks, availability
of labor force, applicability of governmental regulations,
and technological expertise of available labor.
During cross-examination by the Union, W. Anderson
testified (in an unsolicited manner and before Krendel
testified) that demography was an element of input to his
study. Then, during surrebuttal, W. Anderson credibly
testified each of the factors mentioned by Krendel in fact
served as input to the study. Examples of how each was
considered were provided.80
(d) The General Counsel, in effect, also argues that the
1981 study is perfunctory and, hence, unreliable for the
purpose claimed by the Employer. In this regard, Curran
testified the original decision (made in January 1982) was
to transfer Pennsauken's paint production to Orlando,
Greensboro, Columbus, and Chicago Heights. That is
what Berman announced to the union representatives on
February 4. However, Curran acknowledged that is not
what happened. Actually, all of Pennsauken's production
went to Greensboro and Columbus; some production
from Columbus went to Chicago Heights; and some pro-
duction went from Greensboro to Orlando. W. Ander-
son's testimony at the arbitration hearing reflects that the
changes just described resulted from postclosing discus-
sions among employer officials. The General Counsel as-
serts this "last minute change in a decision of such great
importance" tends to negate the Employer's defense, I
do not agree.
As noted above, Krendel on whom the General Coun-
sel relies for other matters, praised the quality of the Em-
ployer's strategic plans. I find the Employer's postclosing
alteration in plans nothing more than a logistical matter.
It is irrelevant to the accuracy and the reasons for the
study. It is not a separate decision to close. This is espe-
cially true when viewed in light that no new production
employees were added the closure. In the absence of evi-
dence that the original planned reallocation would have
resulted in displacement of Pennsauken's employees in
favor of new employees, I am unwilling and unable to
concur with the General Counsel on this point.
30 The General Counsel argues this testimony is self-serving and lends
credence to Krendel I note, however, testimony provided by each liti-
gant is necessarily self-serving That alone is no basis for discrediting a
witness . The fact this surrebuttal also corroborates Krendel serves to en-
hance the credibility of both W. Anderson and Krendel, each of whom
this decision shows I do credit.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union's separate attacks on the defense are now
considered. It argues that "numbers can mean whatever
you want them to mean." Assuming -the truth of the
quoted statement, I am faced with the dilemma of choos-
ing between the extensive statistical analyses presented
by both the Union and the Employer. This posture liter-
ally requires I substitute my judgment for that of man-
agement. Clearly, this is inappropriate.
Having rejected such a concept, I find much of the
Union's admittedly careful and attentive analysis and ar-
gument subjugated to a determination as to whether the
Employer 's statistics are accurate and to whether the
1981 study was undertaken with discriminatory motives.
As to the first, the Union's brief concedes,"all of the fig-
ures are accurate," referring to both the Employer's and
its statistics . The second issue is disposed of (1) by the
credited evidence which shows the 1981 study was part
of a well-established historical program of combined stra-
tegic and tactical planning, and (2) by my findings that
there is no credible evidence the study was initiated by
antiunion considerations.
Certain elements, not previously discussed, are note-
worthy. Thus, the Union argues such a "momentous de-
cision" was made in the absence of supporting written
memoranda . The Union urges this is inconsistent with
the Employer's otherwise meticulous planning over the
years which had been memorialized in written docu-
ments. I conclude the record does indeed contain suffi-
cient written backup evidence of the kind the Union sug-
gests should be expected. That material consists of the
various intercompany memos in connection with the
cost-reduction efforts, and the studies of Mountsier and
W. Anderson.
The Union's analysis concludes that "closing of the
Columbus plant would result in savings of some $466,000
more than would result from closing Pennsauken." I
concede the Union's computations do bear out that con-
tention. However, that kind of analysis alone does not
warrant discrediting the Employer's economic defense.
By this argument, the Union paradoxically disregards the-
other factors cited by its own witness Krendel. Also, to
rely on such a factor in the context of the admitted dubi-
ous nature of bare statistics is to engage in an analysis
which is without reliable foundation. This case should
not be viewed in abstraction.
Finally, I find the balance of the Union's arguments
amount to a succession of situations which produce only
suspicious circumstances. Such circumstances do not rise
to the level of probative evidence which would render
the defense nugatory.
On all the foregoing, I find the preponderance of cred-
ible evidence leads to the conclusion that the Employer
did have economic justification for closing the Pennsau-
ken facility.
2. The Darlington case
In Darlington (380 U.S. 263 (1965)), the Supreme
Court declared employers possess an- unfettered right to
entirely go out of business even if that action is motivat-
ed by antiunion considerations. The Court, however, de-
clared that right does not apply to situations which in-
volve a partial closing. The Court held a partial closing
is discriminatory when two elements are present. Those
elements are (1) a purpose on the Employer's part to
chill unionism in any of-its remaining plants which are
part of its business; and (2) the employer must reasonably
have foreseen that the partial closing would have such a
chilling effect. (380 U.S. at 275.)
Direct evidence of a chilling effect is rarely available.
To ascertain whether such an effect is present, the Board
may rely on "fair inferences arising from the totality of
the evidence considered in the light of the then-existing
circumstances." (See the Board's decision on remand
from the Supreme Court, Darlington Mfg. Co., 165
NLRB 1074, 1083 (1967). See also Milo Express, 212
NLRB 313, 314 (1974).)
It is not enough that it may be deduced the "closing
necessarily had an adverse impact upon unionization."
(380 U.S. at 276, emphasis added) among employees in
other parts of the employer's business. However, as long
as there are facts present on which to base a fair infer-
ence that a partial closing was motivated by an intention
to chill unionism, no "affirmative evidence of an actual
`chilling effect' on remaining employees" is required.
(George Lithograph Co., 204 NLRB 431 (1973)).
The Board and Third Circuit Court of Appeals both
lay the burden of proof of a prima facie case of discrimi-
natory conduct on the General Counsel. Wright Line, 251
NLRB 1083 (1980); 'Behring International v. NLRB, 657
F.2d 83 (3d Cir. 1982)).31
The General Counsel's theory of violation proceeds
from the assumption the record contains both direct and
indirect evidence- of unlawful motivation and chilling
effect; and that such evidence reflects the Employer's as-
sertion that Pennsauken was closed for economic reasons
is a disguise to mask its unlawful conduct.
I find the record as a whole does not contain sufficient
evidence of a prima facie Darlington case . First, my dis-
position of the motivational evidence, contained in sec-
tion III-B(1) effectively eliminates the incidents there dis-
cussed as probative,direct evidence of the requisite moti-
vational element of the prima facie case.
Two additional employee witnesses were produced by
the General Counsel to, provide indirect evidence from
which I am presumably able to make an inference that
the Employer's conduct had a chilling effect. It is appar-
ent that the General Counsel contends the closing chilled
the potential of unionization among clericals and techni-
cians at the Employer's other facilities.
Witnesses N. Belcher and R. Lagerman were in the
clericals and technicians unit. They are both color house
service technicians. Their duties required them to be in
telephone contact with their counterparts in the Greens-
boro, Columbus, and Chicago Heights plants. They regu-
larly, had telephone conversations two or three times
each month during the preelection period and through
the negotiations for the clericals and technicians collec-
tive-bargaining contract until the closing.
31 Though both cited involved so-called dual-motive situations, I find
their lesson regarding burdens of proving puma facie cases applies herein
The disagreement between the forums as to whether the burden shifts on
such proof is not relevant here because I agree with General Counsel
that the instant case presents a pretext question.
DESOTO , INC. 807
Both of these employees testified , without contradic-
tion, that they spoke frequently of the Union to their
counterparts. Each described the substance of those con-
versations in detail.
Belcher, in salient part, testified that the counterparts
"were more or less trying to find out what was going on
in our plant. They knew we had signed a union card .. .
and they were inquiring, looking for information" with
respect to the Union. Belcher repeated , saying "they [his
conuterparts in Greensboro and Columbus] wanted to
know what was going on at that particular time. They
knew we had signed cards for the Union. They were
looking for information , I guess."
Belcher was then asked to describe what he talked
about regarding the Union. Belcher replied, "Just the
progressing of it which wasn 't really much . It was that
we had signed the cards . The election was on. We had
won the election, and they were just wondering what
was going on. Really , the only thing that I could tell
them at that time was that we were waiting for the Com-
pany and the Union to get together in a meeting."
Lagerman named two employees to whom he spoke
about the Union at Greensboro and three employees at
Columbus. He first testified he "mentioned to them that
cards had been signed for the purpose of joining a
union ." Then, Lagerman was asked whether the Greens-
boro and Columbus employees "said anything back" to
him. He responded , "Just general comments are far as-
well, keep us informed and so forth."
Lagerman was then asked to describe his conversa-
tions about the Union after the election . He answered,
"[A]fter business was transacted I would keep them
posted on the progress of the negotiations that were then
underway."
Lagerman appeared as a rebuttal witness, but testified
regarding other subjects . He was not again asked any
questions about conversations regarding the Union with
employees at other plants.
I find no testimony sprang forth from Lagerman or
Belcher to reflect either of them told anyone of any of
the incidents proffered by the General Counsel as direct
evidence of unlawful motivation . In these circumstances,
I conclude there is no record evidence of a nexus be-
tween any of those alleged incidents and the advent of
the Union, the election campaign , the subsequent negoti-
ations, or the closing . Their testimony may fairly be
characterized as containing innocuous generalities. These
cannot form the basis for the inferences required to pro-
vide the prima facie element of chilling effect.
The General Counsel asserts another basis he claims
demonstrative of unlawful motivation, to wit : that Penn-
sauken was the only unionized plant within the Employ-
er's "eastern" facilities made part of the cost analysis and
capacity, study and the employees who worked there
were the highest paid among .the plants involved in the
study.
The Employer's records show the average hourly rate
for, production and maintenance employees during the
times relevant herein (including cost of Scanlon plan bo-
nuses) were: $10.51 at Pennsauken ; $9.21 at Greensboro;
$9.94 at Columbus; and $6 .83 at Orlando.
In addition, the annual cost of fringe benefits per pro-
duction and maintenance employee (including contribu-
tions to union benefit funds ) at Pennsauken was $7556.99.
At Greensboro , the annual fringe benefit cost per em-
ployee was $4691 .68, at Columbus $525.01 , and at Orlan-
do $3872 .93. Thus, the General Counsel correctly ob-
serves the Employer's operational cost for wages and
fringes at Pennsauken was considerably higher than the
other plants studied.
These statistics, viewed in isolation , arguably militate
in favor of making the adverse inference requested by
the General Counsel . However , in the entire setting
herein, especially the uncontroverted evidence that the
Employer 's operation is not labor intensive and that
direct labor cost comprise less than 2 percent of its oper-
ating budget , I am persuaded such inference is not war-
ranted . Even the addition of indirect labor cost (comput-
ed by deducting the 66 percent of total product costs at-
tributable to cost of raw materials) shows the total labor
costs is not more than one-third of total operating costs.
Though this percentage of the Employer 's costs is not in-
significant, it cannot be said with certainty that it is suffi-
ciently substantial to infer unlawful motivation.
Finally, the General Counsel has enumerated an im-
pressive array of other factors which he claims justify
the basis for making an inference of unlawful motivation.
Those elements consist of such things as Curran's precip-
itous change of plans so he could fly to Pennsauken im-
mediately after the demand for recognition , the Employ-
er's admitted failure to inform the Union that the reason
for the requested meeting in January 1982 was to advise
the Union of the decision to close, and the speed (ap-
proximately 3 weeks) in which the 1981 study was con-
ducted . I consider all such elements as arousing susp-
cious circumstances which , in a different context, might
give rise to the requested inference . The instant record as
a whole, in my view , does not warrant elevating them
beyond what they are-suspicions . I cannot not find a
violation on such a basis . Kings Terrace Nursing Home,
229 NLRB 1180 (1977); Foodway, 235 NLRB 415, 416
(1978).
- On all the foregoing, I find the preponderance of cred-
ible and probative evidence ' does not demonstrate the ex-
istence of a prima facie Darlington, or any other, type of
unlawful discrimination within the meaning of the Act,
because the record lacks the requisite elements of unlaw-
ful motivation and chilling effects of the Pennsauken
closing. Accordingly, I shall recommend the dismissal of
such allegations.
3. The LA Marine theory
Only the Union propounds the LA Marine theory.
During the trial, I granted the General Counsel 's motion
to amend the complaint to place that theory in issue. The
General Counsel later moved to withdraw that amend-
ment, claiming "it's the General Counsel's position that it
[sic] cannot make out an L.A. Marie [sic]" case.
The Union, nonetheless, pursues this theory. It claims
the Employer 's closure of Pennsauken , which occurred
just under a year before the most recent production and
maintenance collective-bargaining agreement was due to
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expire, is tantamount to an unlawful midterm modifica-
tion within the intendmant of Section 8(d) of the Act. As
evidence, the Union asserts the arbitrator 's decision de-
termined that issue , and I am bound by it. I have already
rejected the latter notion . Thus, I shall resolve the sub-
stantive question. -
Relocations are violative of Section 8(a)(5) and (3) and
Section 8(d) of the Act when during the term of a col-
lective-bargaining agreement an employer relocates work
covered by the agreement without the union 's consent in
order to avoid the labor costs32 contained in the collec-
tive-bargaining agreement.33
Herein, the Employer has asserted the closing was mo-
tivated by purely economic considerations apart from the
terms of the collective-bargaining agreement. I have
found that the closing was not motivated by unlawful
considerations . The question whether the contractual
labor costs formed a part of its economic considerations
remains.
The Union strongly suggests it is inescapable that the
Employer 's reliance on economic reasons does not en-
compass the costs of contract - implementation. The
Union points to the Employer's records which show that
the projected net savings resulting from the Pennsauken
shutdown was $3 ,472,200, exluding savings from closing
the small detergent operation at that facility , 34 while the
net savings projected from closing Columbus was
$3,245,600.
Then the differences in fringe benefits costs at Penn-
sauken and Columbus are factored into the analysis of
relative savings , the net savings is almost the same for
both locations . The net savings differences at Greensboro
present even greater disparities . Thus, the Union argues
it is apparent that the difference in savings is indeed at-
tributable to the labor costs of the Union's production
and maintenance contract.
The Union 's argument is superficially appealing. How-
ever, it must be examined in light of the totality of evi-
dence present in this case.
For example , as previously reported , W. Anderson tes-
tified that the Employer 's paint operations are not labor-
intensive and that direct labor costs are less than 2 per-
cent of product costs. Also, he credibly testified that he
did not consider wage rates in compiling his study. He as-
serted that his study did not separately involve ascertain-
ing the impact of the union contract , and that pension
costs were not considered , nor were they computed, as a
factor in his analysis of the projected savings which
would result from the closing . I cannot fmd any evi-
dence which effectively refutes his testimony . It is rea-
sonable to conclude from that testimony that the Em-
ployer had not seriously been concerned with the impact
of its costs under the union contract when making the
decision to close . This is not to say the union contract
had been entirely disregarded . Legal advice was request-
32 DeSoto's costs are set forth in the immediately preceding section of
this decision.
33 Los Angeles Marine Hardware Co., supra, Milwaukee Spring Division,
265 NLRB 206 (1982).
34 The Union acknowledges the detergent savings is irrelevant because
the record reflects that operation could have been -eliminated without
closing the entire plant.
ed and obtained concerning the overall impact of the de-
cision to close on the collective-bargaining agreement.
However, there is no evidence that the discussions with
Attorney Berman involved cost factors. They were, in-
stead, directed to the Employer's general bargaining obli-
gations.
I have also considered the evidence, previously de-
scribed, which reflects the harmonious relationship be-
tween the parties and the fact that continuation of Penn-
sauken operations and successful culmination of the cleri-
cals and technician's collective-bargaining negotiations
would add only 18 empoyees to the Employer's probable
increased costs flowing from such a collective-bargaining
agreement. Finally, I have included the undeniable evi-
dence that the Employer was faced with actionable
excess production capacity and the absence of discrimi-
natory motivation.
When the Union's statistical analysis is balanced
against the factors present in the Employer's behalf, I am
persuaded that the contractual costs are not so substan-
tial and impressive as to warrant the conclusion the Em-
ployer was in any way seeking to obtain economic relief
from the terms of the union contract.
In the total context herein, the savings to the Employ-
er derived from abrogation of its contract does not loom
as an operative factor in the decision to close. There is
absolutely no evidence, as existed in LA Marine and Mil-
waukee Spring, of an express claim of such intent. To the
contrary, the instant record contains a multitude of ex-
press denials.
Throughout these proceedings the Employer has as-
serted that no degree of labor costs concessions at Penn-
sauken could have changed its decision to close that fa-
cility. The Employer has saved approximately $5 million
per year after Pennsauken closed. The labor cost at
Pennsauken was $2.7 million. At the February 16, 1982
bargaining session, the Employer told the Union the con-
cessions it needed would have to at least equal the differ-
ence between the amount saved and the then-current
contractual labor costs. When the Employer agreed to
bargain over the decision to close, it proposed keeping
the plant closed and remained adamant in that position.
McQueen testified that, based on the actual savings real-
ized from the Pennsauken closing, combined with the
fact the Employer does "not need the" production ca-
pacity of that facility, it would close again at the earliest
opportunity, even if ordered to resume its operations. In
this context, it is difficult to perceive how it can be said
that the contractual labor costs were an operative, factor
in the decision to close.
On all the foregoing, I fmd no merit to the Union's LA
Marine theory.
4. The refusals to bargain
The General Counsel analogizes the Pennsauken clos-
ing (which he concedes involved a reallocation of work)
to a partial closing, because it is clear the Employer's
business continued without interruption after the closing
and the closing did not involve any alteration of the Em-
ployer's product line or production. The General Coun-
sel contends that the Employer's failure ' to give the
DESOTO, INC. 809
Union prior notice of the deliberations regarding closing
and of the decision to close constitutes an unlawful refus-
al to bargain in violation of Section 8(a)(5). Midland-Ross
Corp., 239 NLRB 323, 329-330 (1978), enfd. 617 F.2d
977 (3d Cir. 1980).
Also, the General Counsel asserts an unlawful refusal
to bargain occurred by the Employer's failure to bargain
in good faith over the effects of the closing. In essence,
the theory of this violation is predicated on the conten-
tion that the insufficient notice of the closing effectively
precludes a finding of the Employer's good faith because
the Employer's conduct removed any opportunity for
the parties to engage in bargaining which might have
been meaningful. Instead, the General Counsel argues
that the Employer's total conduct, before and after the
closing, foreclosed such meaningful bargaining . See Na-
tional Car Rental System, 252 NLRB 159, 162 (1980),
enfd. 672 F.2d 1182, 1189 (3d Cir. 1982).
The Employers contends (1) the Union waived its right
to be consulted by agreeing to article XXVI of the pro-
duction and mai tenance contract, and (2) it was privi-
leged to effectuate the closing without prior notice under
First National Which, the Employer claims, established
the principle that no advance notice is required of a deci-
sion to terminate a part of an employer's business when
that decision is based solely on the employer' s economic
profitability. Relying on the genuineness of its motives
and accuracy of its analyses, the Employer claims its ac-
tions are lawful as within the framework of decisions the
First National h lding recognized as being not amenable
to'resolution through collective bargaining . The Employ-
er cites Swift &'Co., 264 NLRB 240 (1982), and claims its
similarities make', it applicable herein. In Swift, the Board
left stand an adniinistrative law judge's recommendation
to dismiss the complaint which alledged Swift failed to
bargain in good Faith by closing a plant without giving a
union which represented the employees advance
notice'35
To resolve the refusal-to-bargain allegations, I first
note that plant relocation decisions are presumptively
mandatory bargaining subjects. Production Molded Plas-
tics, 227 NLRB 176 (1977), enfd. 604 F.2d 451 (6th Cir.
1979); , Weltronic ! Co., 173 NLRB ' 235 (1968), enfd. 419
F.2d 1120 (6th Cir. 1969), cert. denied 398 U.S. 938
(1970).
T h i s rule i s n t affected by the First National decision.
The Supreme court expressly left open the issue of
whether an employer has a duty to bargain about man-
agement decisions (other than whether to close part of
the business for economic reasons) that may have an
impact on the employment of unit employees (452 U.S.
at 686 fn. 22). The Court declared a balancing test to as-
certain whether, and to what extent, an employer' s entre-
preneurial decision involves labor costs or other factors
that would be amenable to resolution through the collec-
tive-bargaining process. That test requires a determina-
tion of whether the benefits of collective-bargaining out-
35 'Though I concede there are numerous similarities in Swift, I find it
distinguishable. There, unlike here, there was no reallocation of the
weigh the burden placed on the conduct of the employ-
er's business (452 U.S. at 679).
I have already concluded DeSoto's decision to close
Pennsauken was due to the existence of excess produc-
tion capacity. I view that decision as a purely entrepre-
neurial decision by the Employer to close part of its
business solely for economic reasons. The differences be-
tween the savings realized from the closing and the costs
of continuing the operation (contained above in the dis-
cussion of the LA Marine theory) show that it is improb-
able the Union could have proposed anything which
would have caused the Employer to retreat from its de-
cision. In such circumstances, I conclude the Employer
was under no statutory obligation to bargain over the de-
cision to close the Pennsauken facility. Cf. Brooks-Scan-
lon, Inc., 246 NLRB 476 (1979), pet. for rev. denied 654
F.2d 730 (9th Cir. 1981).36
Similarly, I find it was not unlawful to fail to give the
Union a chance to bargain over that part of its decision
which involved reallocation of the Pennsauken work.
There are circumstances in which such an obligation
exists. See Otis Elevator Co., 255 NLRB 235 (1981). Otis,
however, involved not only a relocation of unit work
but also a transfer of certain unit employees. In the case
at bar, no employees were transferred or considered for
transfer. Moreover, as earlier noted, no additional pro-
duction and maintenance employees were hired to per-
form the unit work formerly of Pennsauken. This factor
makes Otis Elevator significantly distinct from the instant
case . Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964), and
its progeny, reflect this distinction. Though those cases
involve subcontracting of unit work, they also present
situations where a new cadre of employees performed
the work removed from the unit employees by the sub-
contracting. Herein, the Pennsauken work was absorbed
by the available theretofore unused production capacity
of the Employer's plants to which the Pennsauken work
was reallocated.
Otis Elevator contains 'another distinguishing character-
istic. Specifically, in Otis the relocation was of only a
segment of a plant's operation (255 NLRB at 247).
Herein, DeSoto completely closed the Pennsauken oper-
ation.
The fact no new employees were hired tends to show
two things. First, that the decision to close was in fact
attributable to excess production capacity and, second,
that it may be viewed purely as designed to ameliorate
the Employer's conduct of its business. The latter is in
the nature of an entrepreneurial decision which, in these
circumstances, is not readily amenable to the collective-
bargaining process and in which the Union need not
share. There simply existed no terms and conditions of
employment over which the Union could negotiate.
Assuming, arguendo, Fibreboard principles are appo-
site, the particular facts of each case to which those prin-
ciples apply must be carefully scrutinized. The distinc-
tion between simple subcontracting and termination of a
business enterprise is not easily discernable. The issue re-
closed facility's work Thus, the closing amounted to a going out of bust- 36 In view of this finding, it is unnecessary to decide whether art,
ness - XXVI of the contract was a waiver of the Union's right to bargain
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quires determination whether an employer' s action in-
volves an aspect of the employer-employee relationship
that is amenable to resolution through bargaining with
the union or is one that represents a significant change in
operations or lies at the core of entrepreneurial control.
Such a determination must take into account a variety
of factors . They are ( 1) the nature of the business before
and after the action is taken, (2) the extent of capital ex-
penditures, (3) the basis for the action , and (4) the ability
of the union to engage in meaningful bargaining in view
of the employer's situation and objectives . (Bob's Big Boy
Family Restaurants, 264 NLRB 1369 ( 1982).)
In the instant case , the Pennsauken closing did not
change the Employer's business, nor has it been shown
or contended the closing involved any substantial capital
restructuring or investment . These factors support a con-
clusion that the Fibreboard, not First National principles
should govern the disposition of the issues.
However, when the third and fourth criteria are con-
sidered , the case assumes a different tenor . Herein, the
Employer 's economic defense is meritorious . Its objec-
tive was to reduce its excess production capacity. The
ultimate goal was maintenance and enhancement of prof-
its. The Employer had to , and did , make business judg-
ments ` as to how best it could accomplish that end. In
making those judgments the elements of demography,
transportation networks, market share, and applicable
governmental regulations were evaluated . These matters
clearly are out of the Union 's control . In the entire con-
text, it is difficult to perceive how the Union could have
provided effective input during the bargaining process.
I find this a close issue . On all the foregoing relevant
discussion , wherever contained in this decision , I am per-
suaded that the balance swings in favor of the conclusion
that the preponderance of evidence does not warrant dis-
posing of the refusal -to-bargain allegations as a Fibre-
board case . Accordingly , I fmd that no notice was re-
quired concerning the decision to close Pennsauken or to
rellocate the work to other facilities.
I have considered the possibility that article XXV of
the production and maintenance contract provides the
basis for holding the Employer derogated from its 8(d)
bargaining obligation by unilaterally straying from the
terms of that contractual provision during the term , of
the collective-bargaining agreement. See, e .g., Boeing
Co., 230 NLRB 696 (1977), enf. denied 581 F.2d 793 (9th
Cir. 1978); University of Chicago, 210 NLRB 190 (1974),
enf. denied 514 F.2d 942 (7th Cir. 1975).
As'earlier reported, article XXV limits plant relocation
to a radius of 25 miles , without the "written consent of
the Union , but the Union shall not withold its consent
for arbitrary and capricious reasons." Clearly, this lan-
guage establishes a right to consultation in the Union.
In view of the pending appeal to the Third Circuit of
the arbitration proceedings , and also in view of the con-
clusion that the closure decision is not amenable to the
collective-bargaining process, I find it unnecessary to
decide whether a Boeing or University of Chicago ration-
ale could be applied herein.
On all the foregoing, I find no merit to the allegation
that the Employer violated Section 8(a)(5) by its failure
to afford the Union an opportunity to bargain over the
decision to close or the reallocation of work.
Whether the Employer provided an opportunity for
meaningful bargaining over the effects of the closing is a
factual question (672 F.2d at 1189-1190). A concommi-
tant of meaningful bargaining is the good faith of the
parties so that the negotiations are not rendered futile or
impossible.
In all, the parties met on six occasions after the clos-
ing, between February 16, 1982, and March 3 , 1983.37 In
addition, several letters were exchanged between their
counsel . Proposals were exchanged regarding the effects
of the closing on the affected employees . Discussion
ensued . The postclosing negotiations until January 11,
1983 , can be fairly characterized as threshold bargaining.
There was considerable parrying between the parties and
their counsel.
The early meetings immediately after the closing re-
flect considerable discussion over effects - The Employer
made a "final" offer on February 26, 1982 , which the
Union rejected . That was only the second meeting.
I find no impasse in effects bargaining existed at that
time . Indeed, on January 11 , 1983, the Employer 's coun-
sel, in response to the Union counsel 's request for clarifi-
cation of the bargaining status, clearly advised the Union
of the Employer 's intention to continue bargaining over
both the effects of closing and the decision to close.
Thereafter, the parties met only twice. The first such
meeting basically addressed the decision to close, the
parties having discussed what , and whether, concessions
could promote a reopening of Pennsauken . There is little,
if anything, that occurred during that session which
could be ascribed as effects bargaining . The second of
such meetings (and the final meeting of the parties before
the instant trial) contains no indicia of effects bargaining.
Instead , some of the information requested by the Union
relating to the decision to close was supplied.
At the end of the final negotiating session , the Em-
ployer had not yet provided all the information the
Union requested . It remains unclear whether balance of
the information has been provided. If it had been provid-
ed, it is reasonable to presume the Employer would have
adduced that fact at the trial.
Although it is not evident what precise use the Union
will make of all the information requested , it is possible
that its receipt, and further discussion between the par-
ties, will enable it to formulate new proposals on effects.
In any event, the state of negotiations clearly reveals the
parties had not seriously addressed the issue of effects
anytime after the Employer 's January 1983 declaration of
continued readiness to discuss that issue.
Not long before that declaration , the Employer's pro-
posal to keep the plant closed effectively diverted the
parties from effects bargaining . This factor, and the ab-
sence of evidence the Employer had provided all the in-
formation it promised the Union ' 311 forestalled effects
37 The details of what occurred during these sessions appears above in
sec III(b)(4)
98 No contention was made that the information was not necessary and
relevant to the Union's fulfillment of its bargaining responsibilities
DESOTO, INC. 811
bargaining and lead me to conclude the Employer has
not fulfilled its obligation to bargain over the effects of
the decision to close. Soule Glass & Glazing Co., 246
NLRB 802 (1979).
Accordingly, I find that the Employer violated Sec-
tion 8(a)(5) of the Act by failing to bargain in good faith
over the effects of the closing, and shall recommend an
appropriate remedy.
On the basis of the foregoing- findings of fact, and the
entire record, I make the following
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of the Act.
3. The following employees of Respondent constitute
appropriate units for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
(a) All production and maintenance employees in-
cluding shipping and receiving employees employed
at Respondent's Pennsauken , New Jersey facility;
but excluding all office clerical employees, laborato-
ry employees, professional -employees, guards, and
supervisors as defined in the Act.
(b) All office clerical and laboratory technicians
employed at Respondent's Pennsauken, New Jersey,
facility; but excluding all confidential secretaries,
professional employees, guards and supervisors as
defined in the Act.
4. By failing to bargain in good faith with the Union
over the effects of the February 4, 1982 closing of its
Pennsauken facility, the Employer violated Section
8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Employer did not commit any of the other
unfair labor practices alleged in the complaint.
THE REMEDY
Having found the Employer violated Section 8(a)(1)
and (5) of the Act, I shall recommend it cease and desist
from engaging in such conduct in the future and affirma-
tively take such action as will dissipate the effects of its
unfair labor practices. To remedy the Employer's failure
to engage in good-faith effects bargaining, the Order
shall require' the Employer to resume bargaining over
the effects of the February 4, 1982 Pennsauken closing
on bargaining unit employees affected by it, and to con-
duct such bargaining in good faith.
As noted, one of the issues presented was whether a
status quo ante remedy requiring the Employer to
resume its Pennsauken operations is appropriate and nec-
essary. Such a remedy is a customary component of a
Board order in situations where an employer has en-
gaged in discriminatory conduct. Lion Uniform, 247
NLRB 992, 994 (1980); R & H Masonry Supply, 238
NLRB 1044 fn. 3 (1978), and cases cited therein. See also
Sunflower Novelty Bags, 225 NLRB 1331 (1976).
I have found the Employer engaged in no conduct dis-
criminatory within the meaning of Section 8(a)(3) of the
Act. In Production Molded Plastics, 227 NLRB 776, 778
(1977), the Board commented, "The Board . . . is reluc-
tant to order the resumption of operations, especially
where, as here, the closing is for nondiscriminatory rea-
sons."
In the absence of credible and probative evidence of
discriminatory intent, and the other factors recited
above, I conclude there is no factual or legal basis to
order the Employer to resume its Pennsauken operations.
Also see Marriott Corp., supra.
It is not argued, nor was evidence presented to prove,
that the Employer's conduct found unlawful herein is an
extension of a proclivity to violate the Act or is egre-
gious. Thus, on the instant record, I conclude a broad
proscriptive order is unnecessary. See 'Hickmott Foods,
242•NLRB 1357 (1979). Accordingly, the Employer shall
be ordered to cease and desist from in any like or related
manner interfering with, restraining, or coercing employ-
ees in the exercise of their Section 7 rights.
,Inasmuch as the Pennsauken facility presently is closed
and none of the employees represented by the Union and
affected by the unfair labor practice found herein is em-
ployed there, I conclude ta, effectively convey the mes-
sage contained in the notice which the Employer shall be
ordered to sign, provisions should be made to assure all
such employes become aware to their rights, and these
proceedings. Thus, the Order shall require the Employer
to mail a copy of the notice to each such employee.
Amshu Associates, 218 NLRB 831, 836-837 (1975).
[Recommended Order omitted from publication.]