Electrical Products Div. Of Midland-Ross Corp.

National Labor Relations Board - Board Decisions

Nov 17, 1978

239 N.L.R.B. 323 (N.L.R.B. 1978)

ELECTRICAL PRODUCTS DIV. OF MIDLAND-ROSS CORP.
Electrical Products Division of Midland-Ross Corpo-
ration and United Glass & Ceramic Workers of
North America, AFL-CIO, CLC. Cases 4-CA-
8081 and 4-CA 8327
November 17, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
.Nr) MI RP'1Y
On April 24, 1978, Administrative Law Judge
James T. Youngblood issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief and the General
Counsel filed a brief in reply to Respondent's excep-
tions. Subsequently, Respondent filed a motion for
oral argument.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs,
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as herein modified.
The Administrative Law Judge ordered Respon-
dent to pay all of the employees on the Del-Val pay-
roll as of July 1, 1976, the amount each would have
earned from July 1 to December 31, 1976, the date he
found Respondent would have closed this facility
had it not been discriminatorily motivated. We agree
that this backpay remedy is proper to remedy Re-
spondent's 8(a)(3) violation, as all of these employees
suffered such losses as a result of Respondent's ac-
tion. However, we disagree with his recommended
Order insofar as it awards interest on this backpay
only from 5 days after the issuance of his Decision.
We see no reason for this departure from the Board's
normal backpay remedy in cases of discriminatory
discharges. We shall therefore order that interest on
such backpay begin as of July 1, 1976.
tRespondent's motion for oral argument is hereby denied because the
record, the exceptions, and the bnefs adequately present the issues and
positions of the parties.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dryv Wall Products. Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
Chairman Fanning would find that Respondent's obligation to bargain
with the Union over the Nylomatic employees arose on June 5. when the
Union achieved majonty support following its demand for recognition
We also agree with the Administrative Law Judge
that Respondent be ordered to bargain with the
Union concerning its decision to close the Del-Val
facility and the effects of such closing on the employ-
ees in the unit represented by the Union. However,
under the present circumstances, such bargaining is
likely to be only proforma unless the Union can now
bargain under the conditions which would have been
present had Respondent bargained at the time the
Act required it to do so. In order to recreate as nearly
as possible the situation as it existed at the time Re-
spondent should have bargained, including restoring
the Union some measure of economic strength, we
shall order Respondent to pay its Del-Val employees
who are represented by the Union, and who were
employed as of July 1, 1976, amounts at the rate of
their normal wages when last in Respondent's em-
ploy, from the date of this Decision until the occur-
rence of the earliest of the following conditions: (1)
reaching mutual agreement with the Union relating
to the subjects which Respondent is herein required
to bargain about: (2) bargaining to a bona fide im-
passe: (3) the failure of the Union to commence ne-
gotiations within 5 days of the receipt of Respon-
dent's notice of its desire to bargain with the Union;
or (4) the subsequent failure of the Union to bargain
in good faith. Of course, if Respondent decides to
resume its Del-Val operation and offers to reinstate
the above employees to their same or substantially
equivalent positions, its liability will cease as of that
date. Backpay shall be based on the earnings which
these employees normally would have received dur-
ing the applicable period, less any net interim earn-
ings, and shall be computed in the manner set forth
in F. W. Woolworth Company, 90 NLRB 289 (1950);
N.L.R.B. v. Seven-Up Bottling Company of Miami,
Inc., 344 U.S. 344 (1953), with interest thereon com-
puted in the manner set forth in Florida Steel Corpo-
ration, 231 NLRB 651 (1977). See, generally, Isis
Plumbing & Heating Company, 138 NLRB 716
(1962). 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Electrical Products Divi-
sion of Midland-Ross Corporation, Tullytown and
Morrisville, Pennsylvania, its officers, agents, succes-
3 See $Winn-Dixle Stores. Inc. 147 NLRB 783 (1964); Royal Plating and
Polishing Co., Inc, 160 NLRB 990 (1966).
As we are not ordenng that the plant be reopened. we shall order that
Respondent mail to all employees who are to be placed on the preferential
hiring lists copies of the notice.
323
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sors, and assigns, shall take the action set forth in the
said recommended Order, as herein modified:
1. Delete paragraphs 2(d) through (f) and substi-
tute the following:
"(d) Make whole all employees or former employ-
ees of the Del-Val facility who were on the payroll as
of July 1, 1976, for any loss of pay suffered as a result
of the discrimination against them on that date until
December 31, 1976, the date on which the plant
would have closed by fulfilling all of the customer
orders and expiration of the lease, with interest
thereon as set out in the Board's Decision. Place all
the employees who were employed at the Del-Val
facility on July 1 on a preferential hiring list sepa-
rately for each of its other plants now in existence or
hereinafter established in the continental United
States, including the Nylomatic facility, with priority
of employment on each such list to said employees in
accordance with such system of seniority or other
nondiscriminatory practices heretofore applied by
Respondent in the conduct of its business and there-
after offer such employees reinstatement and em-
ployment at each such plant in the manner set forth
in the part of the Administrative Law Judge's Deci-
sion entitled 'The Remedy.'
"(e) Pay the Employees of the Del-Val facility
who are represented by United Glass & Ceramic
Workers of North America, AFL-CIO, CLC, their
normal wages from the date of the Board's Decision
and Order until the earliest of the conditions set forth
in the Board Decision are met.
"(f) Preserve and, upon, request, make available
to the Board or its agents, for examination and copy-
ing, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and
all other records necessary to analyze the amount of
backpay due under the terms of this Order.
"(g) Post at all its facilities throughout the United
States, including the Nylomatic facility in Morris-
ville, Pennsylvania, copies of the attached notice
marked "Appendix." Copies of said notice, on
forms provided by the Regional Director for Region
4, after being duly signed by Respondent's represen-
tative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to Respondent are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
"(h) Mail to the last known addresses of all em-
ployees on the hiring lists copies of the attached no-
tice, on forms provided by the Regional Director for
Region 4, after such notices have been signed by au-
thorized representatives of Respondent.
"(i) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with."
2. Substitute the attached notice for that of the
Administrative Law Judge.
4 In the event that this Order is enforced by a judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees at the
Nylomatic facility with plant closure if they sup-
port the Union by posting notices at the Nylo-
matic facility announcing the closure of other
Midland-Ross facilities.
WE WILL NOT threaten our employees at the
Nylomatic facility with plant closure if they sup-
port the Union by mailing letters to the Nylo-
matic employees informing them of the closure
of our Del-Val facility, or any other Midland-
Ross facility, or warning employees of the nega-
tive effect that unionization would have on the
Nylomatic plant's profitability.
WE WILL NOT threaten our employees at the
Nylomatic facility with plant closure if they sup-
port the Union by orally informing employees of
the phaseout of the Del-Val facility and other
Midland-Ross plant closures.
WE WILL NOT time and implement a plant clo-
sure at any of our plants for the purpose of dis-
couraging membership in, sympathy for, or ac-
tivities on behalf of the Union, or any other
labor organization.
WE WILL NOT discourage membership in the
United Glass and Ceramic Workers of North
America, AFL-CIO, CLC, or any other labor
organization of our employees, by discriminat-
ing in regard to hire, tenure, or any other term
or condition of employment.
WE WILL NOT fail or refuse to bargain in good
faith with the Union as the exclusive bargaining
representative of all of our employees in the ap-
propriate unit at the Del-Val facility concerning
our decision to close the Del-Val facility.
WE WILL NOT fail or refuse to bargain in good
faith with the Union as the exclusive bargaining
324
ELECTRICAL PRODUCTS DIV. OF MIDLAND-ROSS CORP.
representative of all of our employees in the ap-
propriate unit at the Del-Val facility about the
effects of the closing of that facility on our Del-
Val employees.
WE WILL NOT fail or refuse to recognize and
bargain with the Union as the exclusive bargain-
ing representative of our employees in the ap-
propriate unit at the Nylomatic facility.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed to them by Section
7 of the Act.
WE WILL, upon request, recognize and bargain
with the Union as the exclusive representative of
all employees in the unit at the Del-Val facility
concerning our decision to close the Del-Val
plant.
WE WILL, upon request, recognize and bargain
with the Union as the exclusive representative of
the employees in the unit at the Del-Val facility
concerning the effects of the closing of the Del-
Val facility on the Del-Val employees.
WE WILL, upon request, recognize and bargain
with the Union as the exclusive representative of
the employees in the appropriate unit at the Ny-
lomatic facility.
WE WILL make whole all employees or former
employees of the Del-Val facility who were on
the payroll as of July 1, 1976, for any loss of pay
suffered as a result of the discrimination against
them on that date until December 31, 1976, the
date on which the plant would have been closed
by fulfilling all of the customer orders and expi-
ration of the lease, with interest thereon.
WE WILL pay the employees of the Del-Val
facility who are represented by United Glass &
Ceramic Workers of North America, AFL-CIO,
CLC, their normal wages for the period required
by the Decision and Order of the National La-
bor Relations Board.
WE WILL place all of the employees who were
employed at the Del-Val facility on July 1, 1976,
on a preferential hiring list, separately for each
of our plants now in existence or hereinafter es-
tablished in the continental United States, in-
cluding the Nylomatic facility, with priority of
employment on each such list to said employees
in accordance with such system of seniority or
other nondiscriminatory practice heretofore ap-
plied by us in the conduct of our business, and
thereafter offer such employees reinstatement
and employment at each such plant.
ELECTRICAL PRODUCTS DIVISION OF MID-
LAND-ROSS CORPORATION
DECISION
STATEMENT OF THE CASE
JAMES T YOUNGBLOOD. Administrative Law Judge: These
cases were heard before me in Philadelphia, Pennsylvania,
on March 8-11 and April 5 and 6, 1977, pursuant to con-
solidated complaints issued by the General Counsel of the
National Labor Relations Board and answers thereto by
Electrical Products Division of Midland-Ross Corporation
(herein Respondent or Midland-Ross). At issue in this pro-
ceeding is whether the Respondent violated Section 8(a)(5)
of the National Labor Relations Act, as amended, in that it
refused to bargain about the closing of one of its facilities
and whether it refused to bargain in good faith about the
effects of that closing; whether the timing and implementa-
tion of that closing was designed to chill unionism at an-
other plant in violation of Section 8(a) and (1) of the Act;
and whether this conduct so impeded the holding of a sec-
ond election that a Gissel Packing Co., Inc., 395 U.S. 575
(1969), bargaining order is appropriate. Respondent denies
the commission of any unfair labor practices. Briefs were
filed by all parties and they have been duly considered.
Upon consideration of the entire record made in this
proceeding, including the briefs submitted to me, and upon
my observations and the demeanor of each witness while
testifying, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. TIE BUSINESS OF RESPONDENT
The Respondent is, and has been at all times material
herein, a corporation duly organized under, and existing by
virtue of, the laws of the State of Ohio. Respondent has
been engaged in the manufacture of molded plastic compo-
nents at facilities located in Tullytown, Pennsylvania
(herein called the Del-Val plant), and in Morrisville, Penn-
sylvania (herein called the Nylomatic plant). During the
past year, Respondent has shipped goods valued in excess
of $50,000 from its Pennsylvania facilities directly to cus-
tomers located in States of the United States other than the
Commonwealth of Pennsylvania.
The consolidated complaint alleges, the answer admits,
and I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that United Glass &
Ceramic Workers of North America, AFL-CIO, CLC, is a
labor organization within the meaning of Section 2(5) of
the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
The Midland-Ross Corporation is engaged in the manu-
facture of various products from its numerous facilities lo-
cated throughout the United States. The Company had
325
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some 28 plants located throughout the United States, in-
cluding the Del-Val plant and the Nylomatic plant in
Pennsylvania, with which we are primarily concerned. The
Del-Val and Nylomatic facilities were purchased by Mid-
land-Ross iii 1974.
With the exception of the Nylomatic plant, all of the
Respondent's plants and facilities throughout the United
States were organized and represented by some union. It
appears from the record herein that, from the inception,
the Del-Val facility was losing money, and the Company
considered disposing of this facility as early as 1974. It is
undisputed that the Del-Val plant was a losing proposition.
The Union has been the representative for the purpose
of collective bargaining of all production and maintenance
employees, including shipping and receiving employees,
janitors, and truck drivers at Respondent's Del-Val plant
but excluding all employees in the bargaining unit for
which the Tool Makers are certified, and all office clerical
employees, lab technicians, technical employees, profes-
sional employees, guards, and supervisors as defined in the
Act. The International Union of Tool, Die and Mold Mak-
ers, a/w American Craftsman Association (herein called
the Tool Makers) has been the bargaining representative
for the toolroom employees, including toolroom clericals,
at the Del-Val plant. As indicated, the employees at the
Nylomatic facility in Morrisville, Pennsylvania, were un-
represented.
The Nylomatic and Del-Val facilities were part of the
Electrical Products Division, a division of the Electrical
Products Group. The Electrical Products Group has other
plants located in Pittsburgh, Pennsylvania, Athens, Ten-
nessee, and Livingston, New Jersey. In January 1976,1 Ny-
lomatic, Del-Val, and the employer's Livingston facility
were put under the supervision and control of Mr. George
W. Bickerstaff. Mr. Robert Worth was placed in the posi-
tion of operations manager for the Nylomatic and Del-Val
plants. These two plants were located only 7 miles apart.
Mr. Worth, along with other managerial personnel, shut-
tled back and forth between the two facilities. One sales
department, one personnel department, and one purchas-
ing department served both plants. All accounting records
were located at the Nylomatic facility, as well as the sales,
purchasing and personnel offices. The Nylomatic and Del-
Val facilities, along with another facility in Trenton, New
Jersey, were acquired by Midland-Ross in April of 1974.
They were acquired from the same individual. The Trenton
facility, being unprofitable, was closed immediately. The
Del-Val and Nylomatic operations were both engaged in
the manufacture of plastic parts.
As indicated, for many years the Union represented a
unit of production and maintenance employees at the Del-
Val facility. In March, the Union began an organizing
campaign at the Nylomatic facility. Roy T. Albert, the
union representative in charge of the organizational cam-
paign, stated that the campaign began on March I, with
the mailing of a letter to the Nylomatic employees, com-
paring the various benefits of the Nylomatic employees
Unless otherwise specified, all dates refer to 1976.
with those of the Del-Val organized employees. The letter
concluded by stating:
Enclosed is a card that is required by law for us to
petition the government for a National Labor Rela-
tions Board supervised secret ballot election. These
cards are absolutely confidential. No member of man-
agement or any other worker will know who filled out
cards.
If you want to move ahead and insure your job securi-
ty by a signed legal written union contract, then do
your part and fill out the enclosed card and mail in the
postage free envelope. Don't delay. Do it today.
The letter was signed by William Chuck Kline, Interna-
tional representative of the Union, and the letter also con-
tained a standard union authorization card.2
Albert testified that the response from the employees
was most gratifying, and this prompted them to send an-
other letter to the employees thanking them for their re-
sponse and enclosing another card if they had not already
returned theirs.' The letter is undated but from its language
it appears that it was mailed on March II, the day the
Union filed its representation petition with the Regional
Office in Philadelphia. Along with the petition, the Union
sent in 32 authorization cards signed by the Nylomatic em-
ployees, with a list of those employees, and in turn received
a receipt from the Regional Office in Philadelphia. On
March 19, the Union mailed to the Board an additional 10
authorization cards along with a list of those employees;
and on June 28, the Union forwarded 4 additional authori-
zation cards, making a total of 46 authorization cards
which were placed in the hands of the Regional Office,
where they stayed until the hearing in this matter.
On March 10, the Union informed the Respondent that
it represented a majority of the production and mainte-
nance department employees, including the toolmakers
and shipping and receiving employees employed at the Ny-
lomatic facility, and requested recognition and negotia-
tions. By letter of March 12, Midland-Ross responded, in-
forming the Union that it doubted the Union represented
an uncoerced majority in an appropriate bargaining unit
and that it saw no point in meeting with the Union at that
time.
On March 25, the Tool Makers filed a representation
petition, Case 4-RC-12082, seeking to represent a unit of
all tool, die, moldmakers, machinists, apprentices, and al-
lied toolroom craftsmen, at the Nylomatic facility. The pe-
tition stated that the unit contained 10 employees.
On June 10, the Regional Director for Region 4 issued
his Decision and Direction of Election. In the Decision
and Direction of Election, the Regional Director set up
2 The card states:
OFFICIAL MEMBERSHIP APPLICATION AND AUTHORIZATION
I, hereby apply for membership in the United Glass and Ceramic
Workers of North America, AFI.-CIO, CLC. I hereby designate and
authorize the United Glass and Ceramic Workers of North America,
AFL-CIO. CLC as my collective bargaining representative in all mal-
ters pertaining to wages, rates of pay and other conditions of employ-
ment. I also authorize the United Glass and Ceramic Workers of North
Amenca, AFL-CIO, CLC, to request recognition from my employer as
my bargaining agent.
This lettei is G.C. Exh. 55.
326
ELECTRICAL PRODUCTS DIV. OF MIDLAND-ROSS CORP.
two separate units. Unit A, as it is called, sets up a unit
consisting of the production and maintenance employees,
including shipping and receiving employees, production
control clerks, and mold maintenance employees at the
employer's Morrisville, Pennsylvania, plant. Unit B con-
sists of all toolroom employees, including toolroom cleri-
cals at the employer's Morrisville plant. On June 22, the
Regional Director issued an amendment to the Decision
and Direction of Election correcting an inadvertent error
in the original Decision and Direction of Election and di-
rected that those eligible in unit A should vote whether or
not they desire to be represented by the Union, and those
eligible in unit B should vote whether or not they desire to
be represented by the Tool Makers. Thus, there were two
units set up with the eligible employees being able to vote
only for one union in each of the two units. The employer
sought review of the Director's decision and, the Board
amended the Direction of Election to provide for a self-
determination election among the tooling department em-
ployees, as is the Board's normal procedure in the circum-
stances here. See Precision Cast Parts Corp., 224 NLRB 382
(1976). Thus, the employees in unit B were given the option
to decide whether they wanted to be represented in that
unit by the Tool Makers or whether they desired to be
represented by the Union. The election was scheduled for
July 1.
As counsel for the General Counsel appropriately put it
in her brief, while the unions were gearing up for the elec-
tion at the Nylomatic facility, management was crystalliz-
ing its plans for the closing down of the Del-Val operation.
As indicated previously, since acquiring the Del-Val facil-
ity in 1974 Respondent had been concerned about its
profitability. As a result, the Respondent had a firm by the
name of McKinsey & Company do a market analysis of all
Midland-Ross' operations, and that firm recommended
that Midland-Ross divest itself of Del-Val. Despite this
recommendation and heavy losses, Midland-Ross contin-
ued to operate the Del-Val facility.
It is undisputed that in February, prior to the Union's
organizational campaign at Nylomatic, a so-called task
force was assigned to evaluate management's various op-
tions to eliminate the severe losses at Del-Val. When the
task force met again in April, after the advent of the Union
at Nylomatic, a decision was reached to prepare a Project
Appropriations Request (herein called PAR). A PAR is
prepared for any investment exceeding $100,000 and is an
analysis of the cost and benefits of a particular corporate
expenditure. As the closing of a facility and the moving of
machinery obviously involved a great deal of expense, this
necessitated the preparation of a PAR. It is fair to say that
at the time management ordered the PAR it was virtually
certain that the Del-Val facility could not be turned into a
profitable operation. It was the recommendation of Louis
Zahradnik, the division comptroller, after preparing the
PAR and based on available data, that they close the Del-
Val facility and move certain of the machinery to the Nylo-
matic facility.
On June 4, Zahradnik submitted the PAR to manage-
ment. William H. Satterfield, group vice president, gave his
approval to the PAR on June 4 and circulated it through-
out the corporate hierarchy for approval by the executive
committee. On June 17, prior to final approval on the
PAR, Satterfield notified George Bickerstaff that he had
received assurances from the top corporate officials that
approval was forthcoming and that Bickerstaff should be-
gin taking the necessary steps to close down Del-Val. On
June 18, Bickerstaff informed Labor Relations Manager
Nicholas Phillips that the PAR had been approved and
assigned Robert Worth, the operations manager, the task
of shutting the plant down.
There is some evidence that the Union was aware that
the Del-Val facility was unprofitable and in financial diffi-
culties. However, there is nothing in this record to indicate
that at any time prior to June 21, that the Respondent
indicated, informed or otherwise notified the Union that it
was considering closing the Del-Val facility. On June 21,
Phillips contacted Kline and also Schickling, of the Tool
Makers, and requested that they meet him the next day at
the Bristol Motor Inn. On June 22, Phillips and Parks,
from Midland-Ross, met with Kline and Schickling as re-
quested. Phillips stated that he opened the meeting by in-
forming those gathered that, due to the continuing deterio-
ration of the economic problems at Del-Val, the Company
had decided to close the plant and he felt they should get
together with the committees and negotiate the closing of
the plant and its effects and to answer any questions. Phil-
lips stated that Kline completely disagreed with what he
was saying and said the Company was only trying to scare
the employees at Nylomatic; that the Company was not
serious and he was going to file unfair labor practice
charges. Phillips then suggested that they get together at
the plant to meet with the two union committees so that
they could advise the committees simultaneously. Accord-
ing to Kline, Phillips said, "We are going to phase out the
Del-Val, Tullytown plant." Kline told Phillips that this was
a shock and what is the problem; that nobody had told the
Union anything about this. Phillips siad they were having
losses. Kline said he told Phillips that he knew the election
was going on at Nylomatic, and he disagreed with what the
Company was doing and charges would be filed. Kline
stated that he was never asked by anybody if the Union
had any suggestions for saving the plant. He said that Phil-
lips merely informed them that the corporate decision had
been made. When Kline, in fact, asked what his Union
could do to save its members, Phillips replied, "There is
nothing we can do." Although Phillips stated that the plant
was closing because of its financial losses, he did not pro-
vide any' financial data on the amount of the loss.
There is little doubt that the decision to close the plant
was final and not negotiable. In fact, Mr. Bickerstaff testi-
fied that the decision to close the plant had been made and
it was final, and that when he informed Worth to close the
plant he was not asking him for any further facts or figures,
but that he was closing the plant and asking for him to
phase it out.
Following the meeting at the Bristol Motor Inn, the
union and management representatives went to the Del-
Val facility, where they met with the union's negotiating
committees. Phillips repeated the news of the phaseout and
shutdown to the unions' negotiating committees. Following
this, the day-shift employees were called together in three
separate groups and informed of the decision to close the
327
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facility. At that time, the employees were informed by Phil-
lips that there would be severance pay if there was no sabo-
tage or equipment damage. Similar meetings were held
with the employees on the second and third shifts. At none
of these meetings did Phillips give any timetable as to the
proposed shutdown. Chuck Kline testified that prior to the
meeting with the third shift on the morning of June 23 he
mentioned to Phillips that this closing was going to have a
bearing on the election at the Nylomatic facility, to which
Phillips replied, "It's going to have an influence on it." On
June 22, the Respondent posted a notice on the bulletin
board at the Del-Val facility informing the employees of
the phaseout of the Del-Val facility. The notice also in-
formed the employees that the Company was currently no-
tifying the employees, the union, and their customers of
this decision.
On June 22 the Respondent posted the notice referred to
above at the Nylomatic plant. This notice was not, how-
ever, posted at any other Midland-Ross facility except Del-
Val. On June 23, the Respondent also mailed a letter to
each of the Nylomatic employees detailing the financial
losses of Del-Val and enumerating various factors such as
third party interference which would hinder Nylomatic's
profitability. 4
4This letter was Jt. Exh. 5 and reads as follows:
June 23, 1976
Dear Fellow Employee:
I have had the opportunity in the past few months to communicate
to some of you on the state of business conditions in our plant. In order
to insure that all of you and your families have this very important
information, I am writing to you personally.
Yesterday, I announced the decision by Midland-Ross to phase out
operations at the Del-Val plant. In 1975. Del-Val lost in excess of
$500,000 and the trend has not improved. For the first five months of
this year it has lost in excess of $240,000. While I personally regret this
action, it will enable your management to concentrate solely on the
survival of the Nylomatic operation.
In 1975, Nylomatic lost in excess of $250,000. For the first five
months of 1976, we have apparently reversed the trend through our
joint efforts and are now beginning to show a slight profit. As I pointed
out to many of you, each Midland-Ross plant must be able to stand on
its own as a viable unit. Increased wages and benefits are available only
when earnings are there to justify them. For your information. the
latest wage increases alone on an annualized basis cost the Nylomatic
Plant in excess of $70,000. I'm sure you all are aware that Nylomatic
has the second highest wage rate for plastic molding operations in the
Delaware Valley area. With the phasing out of the Del-Val operation,
Nylomatic will have the highest rates in the area. Under Midland-Ross,
wages have increased dramatically, additional holidays have been
granted, bereavement and health insurance benefits improved.
Several of you have heard me mention my plans for the future of
Nylomatic. As noted in the 1975 annual report, Midland-Ross corpo-
rate strategy has resulted from the most intensive study ever made of its
products and market. It is based on concentrating our resources and
development efforts in four areas, electrical products. high technology.
capital equipment, steel castings and mechanical controls. The corpo-
rate plan is to aggressively expand its activities in these areas through
broadened product development programs and where appropriate, by
suitable acquisitions.
The former Engineered Plastics Division of the company was inte-
grated with the Electrical Products Division as one of the first steps in
the new corporate strategy. The logic of the initial move stems from the
fact that most of the customers for the molded plastic components we
produce are in the electrical and electronics industries. It will also pro-
mote the application of considerably more plastics technology to the
development of new electrical products for current and future Mid-
land-Ross requirements.
On June 29, 2 days before the election, Respondent held
meetings with all three shifts of the Nylomatic employees
and again reminded these employees of the closing of the
Del-Val facility and again urged the employees to vote
against the Union. On June 30, a meeting was held be-
tween the unions and management to discuss the effects of
the closing of the Del-Val facility. At this meeting Phillips
informed the union representatives that after the vacation
shutdown which would be July I until July 19, Respondent
would need 12 to 15 employees in the production and
maintenance unit and two employees in the tool and die
unit and one apprentice in the tool shop. The issue of sev-
erance pay came up first. Phillips requested that they put
severance pay aside and dispose of some of the other issues
that had been brought up by the unions. The unions were
told to bring up anything they wanted to discuss. The
unions and the Respondent did come to agreement on a
pro rata vacation plan and on the continuing provision of
group insurance benefits. Phillips left the room and made a
handwritten document encompassing the proposals which
had been agreed on and what the Company thought would
be a fair and equitable severance pay schedule.' Phillips
handed a copy of the severance pay schedule to Kline, and,
after Kline had examined the paper, he informed Phillips
that he disagreed with whatever was going on, and stated
that the Union had filed charges, but he said, "Why don't
you double this for the employees. They've been good em-
ployees and good producers. We've never had any prob-
lems, we've never had a strike, we never had an arbitration
case." According to Kline, Phillips responded that that is-
sue was not bargainable, advising, "This is it, it's from the
higher ups." Richard Strauss, who attended this June 30
meeting, and who was at that time the tool manager of
Nylomatic and Del-Val tool shops, testified that Kline did
request Phillips to double the amount, but, in his view,
We have realigned the sales efforts by bringing Cal Engle back into
the Nylomatic operation to concentrate on developing new accounts
and rejuvenating some of our older ones. We have extremely close ties
with other Electrical Products Division plants through the efforts of
Mushtaq Punjani and myself. We are determined to accomplish our
objective of putting Nylomatic on a profitable basis. To do so, we also
need your cooperation.
On July i, 1976, you will be asked to exercise your nght to vote for
the Company or to vote for a third party to represent you. I urge you to
give this decision your sincere. careful consideration. If you vote for the
Company, we will continue to be able to resolve any problems that may
come up without a third party coming between us.
Your management does not want a third party in the plant because a
third party may create complex working conditions, we may have to
hire unnecessary workers and we may have work stoppages, strikes or
slowdowns. All of these have a negative effect on the profitability of
our plant. You all know that you don't need a third party to continue
getting good treatment at this plant.
Even if you signed a card you will have the right to vote "NO" in a
secret ballot election. .. .. ..
NO TO DUES
NO TO STRIKES
NO TO VIOLENCE
NO TO THE ENCOURAGEMENT OF DISTRUST BETWEEN
US
If we are to succeed in making Nylomatic a sound, profitable busi-
ness which will give you security, we don't need the presence of a
union-we need the utmost in trust, cooperation, and the spint which
you have exhibited in the past.
This document is G.C. Exh. 7.
328
ELECTRICAL PRODUCTS DIV. OF MIDLAND-ROSS CORP.
Kline said this in a joking manner and was only kidding.6
Shortly thereafter the June 30 meeting broke up.
The election was held on July 1, and ironically this was
the last day the employees worked at the Del-Val plant.
When the employees went on vacation, they never returned
because the plant never reopened. The tally of ballots in
unit A shows that the approximate number of eligible vot-
ers was 68. Twenty-eight votes were cast for the Union,
and 37 votes were cast against the Union. In unit B the
toolroom employees selected the Tool Makers as their rep-
resentative. Objections to the conduct of the elections were
filed by both the Respondent and the Union, and the elec-
tions in the production and maintenance unit and the tool
unit were set aside.7
After July I, there was no further production at the Del-
Val facility. Much of the Del-Val equipment was sold and
some of it was moved to the Nylomatic plant, which con-
tinued to produce various products which had previously
been manufactured in the Del-Val facility. In fact, of the
12 transfer presses at the Del-Val facility, 6 were moved to
the Nylomatic plant. Additionally, one wheelobrator, one
pillmaker, one supersonic wash, one sandblast, and two
drill presses were also moved to the Nylomatic facility,
where they were phased into production.
On August 3, the Company met with the Tool Makers to
discuss the effects of the closing. Apparently they came to
terms, and the Tool Makers were satisfied and signed a
so-called memorandum of agreement. On August 4, the
Company met once more with the Union to discuss the
effects of the closing of the Del-Val facility on the Del-Val
employees. At this meeting the company contingent in-
cluded Company Counsel George Gardner. Gardner was
introduced to the assemblage, and Mr. Phillips presented
Mr. Kline with a memorandum of agreement. This memo-
randum covers the two items agreed upon, that is, the
group insurance continuation and the pro rata vacation. In
addition it included the severance pay schedule and con-
tained the following paragraph:
The parties agree that during the negotiations with
respect to the phaseout and closedown of the Del Val
6 1 have carefully read this transcript dealing with the testimony of Mr.
Kline and I personally observed Mr. Kline in the courtroom and I know
that this was not a joking matter to Kline. It is my conclusion that Kline did
request Phillips to double the amount as a counterproposal and Phillips
replied that it was not bargainable: that higher-ups had given this amount
and that is it.
7In its answer the Respondent argues that the objections to the election
filed by the Union were untimely, and therefore there cannot be any type of
a Gissel remedy entered in this case because no objections were in fact filed.
The objections to the election are not before me. The Acting Regional Di-
rector ruled upon the objections to the election, apparently finding them
timely. The Respondent's recourse, if any, was the filing of exceptions with
the Board.
s This memorandum of agreement is designated as Resp. Exh. 2. The
original document submitted in evidence at the hearing was an unsigned
document. On June 25, 1977. after the heanng the Respondent made a
motion to substitute a signed copy of its Exh. 2 and asked that it be substi-
tuted or, in the alternative, be added as an additional exhibit. The Respon-
dent advised that this document was furnished by the General Counsel after
the hearing and constitutes evidence which was unavailable to them at the
hearing. There being no objection to this substitution. I will substitute the
copy signed by William Kline, Kenneth W. Long. and Delores Crawford for
the unsigned document which was put in at the hearing. This document will
be marked as Resp. Exh. 2.
plant, each party had the opportunity to make propos-
als with respect to any subject or matter it wished em-
bodied in this memorandum of agreement, that nego-
tiations were conducted on a good faith basis, that the
understandings and agreements arrived at by the par-
ties after the exercise of that opportunity are set forth
herein.
After reading the document, Kline advised the Respon-
dent that he opposed that clause and stated that he was not
going to sign the agreement because it relieved the Compa-
ny of all responsibility for the unfair labor practices.9 Kline
reminded Phillips that he had told them on June 22 or 23
that there would be severance pay if there was no sabotage
or equipment damage. Kline then complained that getting
the severance pay was now conditioned upon his signing
this memorandum of agreement, in which case he would be
agreeing that the Company had bargained in good faith.
This precipitated a heated argument between Kline and
Phillips, and Phillips told Kline that his credibility left
something to be desired. Although the memorandum of
agreement appears to have been signed by Kline at some
point, it was made clear by Kline at the meeting that he
could not accept the memorandum of agreement until he
got approval from his attorney. And apparently that ap-
proval was never granted.
On August 13, in response to a letter of August 6 from
Kline relative to severance pay, Respondent forwarded a
letter to the Union, ostensibly offering to meet and negoti-
ate if they had anything further to negotiate.' 0 Kline ac-
knowledged that he had received this letter, but he does not
recall its text.t In any event, in subsequent conversations
between Kline and Phillips it was made clear that Kline
could not accept any memorandum of agreement until he
got the approval of his attorney, and his attorney had not
given such approval.
Discussions and Conclusions
In Textile Workers Union of America v. Darlington Manu-
facturing Co., 380 U.S. 263 (1965), the Supreme Court held
that an employer had an absolute right to terminate his
entire business for any reason he pleases, and that when an
employer closes his entire business, even if it is motivated
by vindictiveness towards a union, such action is not an
unfair labor practice. Thus, it is clear that where an em-
ployer decides to terminate his business entirely, his deci-
sion to close the business cannot be an unfair labor prac-
tice and therefore he does not have to bargain about the
decision to close the entire business. However, in situations
where the employer is under no obligation to bargain with
the union about the decision to go out of business entirely,
he must nevertheless bargain with the union about the ef-
fects of the closing on the employees involved. See
N. L. R. B. v. Royal Plating and Publishing Co., Inc., 350 F.2d
9On July 6. 1976, the Union filed 8(ahXI) (3). and (5) charges against
Respondent.
By this time the Union had filed the charge on which this proceeding is
predicated.
1i In this letter Respondent acknowledged that there was no sabotage or
damage at the plant, although during the heanng certain of Respondent's
witnesses testified to the contrarN
329
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
191, 196 (3d Cir. 1965). On the other hand, the employer
who partially goes out of business must bargain with the
union about the very decision to close the plant as well as
the effects of the closing on the employees. See Summit
Tooling Cotroany and Ace Tool Engineering Co., Inc., and
Summit Tooling Company Division of Ace Tool Engineering
Co., Inc., 195 NLRB 479 (1972), and Ozark Trailers Incor-
porated and/or Hutco Equipment Company and/or Mobile-
freeze Company, Inc., 161 NLRB 561 (1966).
Here, Midland-Ross operated some 28 plants. At least
five of these were within the same division and involved in
making similar products. The Del-Val and Nylomatic facil-
ities were particularly involved in making similar products,
in that much of the machinery involved in the Del-Val
facility was transferred to the Nylomatic plant. There is no
question that Midland-Ross is still in business and is still in
the business of making the same or similar products that it
was making at the Del-Val facility. It is obvious that Mid-
land-Ross did not go completely out of business. It is also
obvious that it did not go completely out of the business of
manufacturing products similar to those it manufactured at
the Del-Val facility. Thus, it is my conclusion that this was
a partial closing, like that involved in Ozark Trailers, supra,
and that the Respondent was under a duty to bargain with
the Union about its decision to close the Del-Val facility as
well as the effects of that closing upon the employees in-
volved.
The complaint alleges that since on or about June 17,
and continuing to date, Respondent has refused, and con-
tinues to refuse, to negotiate with the Union about its deci-
sion to shut down or phase out the Del-Val operation. In
my view, this issue requires very little discussion, for it is
clear in this record that when the Union was finally noti-
fied of the Respondent's decision to close the plant, the
decision to close was final. In fact, George Bickerstaff testi-
fied that when he informed Phillips of the closing there was
nothing to be discussed, the decision was final. Kline testi-
fied that when Phillips notified him of the closing he asked
if there was anything they could discuss. Phillips said,
"Nothing." Respondent was well aware at least in April
that it was considering closing down or phasing out the
Del-Val facility. In fact, in February the Respondent be-
gan gathering material and facts to determine the future of
the Del-Val facility. In April, when top management real-
ized that there were serious questions as to whether Del-
Val could ever be a profitable enterprise, it started the
preparation of a PAR. The PAR confirmed the obvious,
that is, that the Del-Val facility could never be a profitable
enterprise. Thus, on June 4, Satterfield approved the rec-
ommendation of the PAR and submitted it for corporate
approval. The recommendation of the PAR, as indicated
previously, was for Midland-Ross to divest itself of the
Del-Val facility and transfer certain of the machinery to
the Nylomatic facility. On June 17, Satterfield informed
Bickerstaff of the closing; that the PAR would be ap-
proved and would authorize him to take the necessary
steps to close the facility. Even on this date, the Respon-
dent did not notify the Union of the impending closing of
the Del-Val facility. It was not until the meeting between
Phillips and Kline at the Bristol Motor Inn that the Union
was first notified of the closing of the facility. At this point,
it was afait accompli, as Phillips said there was nothing that
could be done. It is therefore my conclusion that Respon-
dent unilaterally decided to close this facility and refused
to bargain with the Union about this decision to close the
facility, in violation of Section 8(a)(5) of the Act.
The complaint also alleges that Respondent bargained in
bad faith with the Union concerning the effects of the clos-
ing of this facility. The record reflects that the parties met
on two occasions to discuss the effects of the closing, June
30 and August 4. At the June 30 meeting, Kline credibly
testified, and he was supported by Ken Long, that they met
with Phillips and agreed upon pro rata vacation and group
insurance benefits. Thereafter, Phillips left the room and
when he returned he presented them with the Company's
serverance pay proposal. Kline informed Phillips that they
should double the amount, as the employees had been
good workers and good producers. Phillips replied that this
was not bargainable, that "this is it, it's from the higher-
ups." It is obvious that this issue was closed and was not
open for negotiations and that the Company was acting in
bad faith in attempting to compel the Union to agree to its
proposal, which was nonbargainable. According to Long,
Phillips told them that this is what corporate headquarters
sent down and this is all you will get. It is apparent that
Kline did not agree with the company proposal on sever-
ance pay, and he stated he wanted it doubled, and that he
felt he should have the right to bargain about it. There is
no doubt that the Respondent's position on this item was
nonbargainable, and this foreclosed any possibility of
good-faith bargaining on this issue.
At the August 4 meeting the company negotiators
showed up with the company counsel, Mr. George Gard-
ner, and presented the Union with a typewritten memoran-
dum of agreement which set forth the pro rata vacation
schedule, the insurance benefits, and the Company's sever-
ance pay schedule. This agreement also contained a closing
paragraph wherein the Union had to agree that the Com-
pany had bargained in good faith before the severance pay
would be paid. It is undisputed that, on June 22, Phillips
informed the Union and the employees that there would be
severance pay provided there was no sabotage of equip-
ment. There is nothing in this record that would indicate
that any employee was involved in any sabotage of any of
the Company's equipment or the tools of its customers. In
fact, in its August 13 letter, the Respondent admitted that
there had been no sabotage or damage to equipment. It
appears that the Company, by August 4, had backed off of
that promise and was then conditioning the payment of
severance pay upon the Union's signing of the memoran-
dum of agreement, stating that the Company had bar-
gained in good faith about the closing of the Del-Val facil-
ity and its effects on the employees.
In view of the Respondent's position at the June 30
meeting that the severance pay issue was not bargainable
and the Union must accept what was offered, and in view
of the Respondent's August 4 position that to get any sev-
erance pay the Union must sign the memorandum of
agreement, agreeing that the Company had bargained in
good faith throughout the negotiations, it is my conclusion
that at all times material at the June 30 and the August 4
meetings the Respondent was engaged in bad-faith bar-
330
ELECTRICAL PRODUCTS DIV. OF MIDLAND-ROSS CORP.
gaining concerning the effects of the closing down of the
Del-Val facility.
The Respondent argues that on August 13 it submitted a
letter to Mr. Kline in which it offered to bargain about any
aspect of the closing of the Del-Val facility. In that letter
there is reference made to a letter from Kline to Phillips of
August 6 regarding severance pay for the Del-Val employ-
ees. After discussing the fact that the Company was under
no obligation to grant severance pay, and stating that the
employees cooperated and that there was no sabotage or
damage to equipment, the Phillips letter closes with this
paragraph:
My response to your demand in regard to severance
pay was not as you have stated in your letter but that
I would be glad to continue to bargain on the items
which we agreed to and were reduced to the phaseout
agreement I submitted to you at our meeting on Au-
gust 4, 1976. When we reach total agreement, we will
be glad to grant severance pay.
In view of the fact that the employer violated Section
8(a)(5) in refusing to bargain about the closing of the plant,
and the fact that I have found that the employer bargained
in bad faith about the effects of the closing, and, assuming
the August 13 letter to be an offer to bargain about the
effects, it is my conclusion that the Union was under no
obligation to take the August 13 letter at face value. It had
been told at two other bargaining sessions that the purpose
was to bargain about the effects of the closing. However, as
soon as severance pay was mentioned the Union was told
that it was not bargainable, and at the last session it was
not only not bargainable but the Union was advised that
there would be no severance pay unless it agreed that the
Respondent had not engaged in unfair labor practices. In
fact, I am not quite sure that the August 13 letter is an offer
to meet and discuss all of the aspects of the closing of the
plant. The Respondent closes its letter by stating that
"when we reach total agreement we will be glad to grant
severance pay." Thus, it appears that all items must be
resolved before severance pay will be considered. As Re-
spondent had already advised the Union that severance
pay was not bargainable, it is my conclusion that a remedi-
al bargaining order is required to compel the Respondent
to bargain in good faith about the effects of the closing,
including severance pay.
The complaint alleges that Respondent engaged in inde-
pendent violations of Section 8(aKI) of the Act by, on or
about June 22, posting a notice at the Nylomatic facility
informing employees of the phaseout of the Del-Val plant;
by informing Nylomatic employees by letter of the phase-
out of its Del-Val plant and warning the employees of the
negative effect that unionism would have on the Nylomatic
plant's profitability; and by, on or about June 29, through
Robert Worth, orally informing employees of the phaseout
of the Del-Val plant. The General Counsel argues that by
these three enumerated acts during the organizational cam-
paign at the Nylomatic facility the employer was impliedly
threatening its employees to close the Nylomatic facility in
the event of unionization.
It is well settled that an employer is free to communicate
to his employees any of his general views about unionism
or any of his specific views about a particular union, so
long as the communications do not contain a threat of
reprisal or force or promise of benefit. The employer may
even make a prediction as to the precise effects he believes
unionization will have on his company, but that prediction
must be carefully phrased on the basis of objective facts to
convey his belief as to demonstrable probable conse-
quences beyond his control or to convey a management
decision already arrived at to close the plant in case of
unionization. If there be any implication that the employer
may or may not take the action solely on his own initiative
for reasons unrelated to economic necessities and known
only to him, the statement is no longer a reasonable pre-
diction based on the available facts but a threat of retalia-
tion based on misrepresentation and coercion, and as such
without the protection of the first amendment. An em-
ployer is free to tell only what he reasonably believes will
be the likely economic consequences of unionization that
are outside his control and not threats of economic reprisal
to be taken solely on his own volition. See N. LR.B. v.
Gissel Packing Co., Inc., 395 U.S. 575, 618, 619 (1969).
The union organizational campaign in this case began
on March I with the mailing of a letter and authorization
cards to the Nylomatic employees. A second mailing was
around March 10 or II1. On March II1, the Union notified
the Employer that it represented a majority of its employ-
ees and requested recognition. The Employer denied recog-
nition. doubting the Union's majonty status. Had the em-
ployer left matters as they were at this point in time, no
problem would have arisen and the election, which was
ultimately directed for July 1, would have taken place with-
out any problems. However, the Employer did not leave
things as they were. In fact, it began the implementation of
a prior probability that the Del-Val plant would be closed
and began immediately evaluating the future profitability
of that unionized plant. It was around June 17 when the
final decision to close the Del-Val plant was arrived at by
the Respondent, and that decision was final.
Midland-Ross could not wait to notify the Nylomatic
employees of this decision. Thus, on June 22, the same day
in which it informed the Union at Del-Val and the employ-
ees at Del-Val that the plant would be closed, the Em-
ployer posted the same notice on the bulletin board at the
Nylomatic facility, notifying the Nylomatic employees that
the Del-Val facility would be closed. The Respondent was
well aware of the fact that a union election was forthcom-
ing on July 1. The Employer was also well aware of the fact
that the employees at Nylomatic were aware that the Del-
Val employees were unionized and were operating under a
union contract. The Employer admitted that the only no-
tices which had previously been posted at the Nylomatic
facility were those that affected both facilities, such as no-
tices about picnics and vacations, etc.
The Employer justified its posting of the notice of the
Del-Val closing on the Nylomatic bulletin board by stating
that it was necessary because certain employees who work
at the Nylomatic facility, such as those in the payroll sec-
tion, personnel office, and many supervisors, also cover the
Del-Val facility, and the posting was to inform these people
of the closing because they were vitally interested in the
continuation of the Del-Val facility. This explanation
331
DECISIONS OF NATIONAL LABOR RELAI IONS BOARD
might be adequate and acceptable but for the fact that the
next day, on June 23, the Respondent mailed a letter ad-
dressed to all of the Nylomatic production and mainte-
nance employees from Plant Manager Robert Worth again
informing the employees of the closedown of the Del-Val
facility. This letter explained the losses at the Del-Val facil-
ity in 1975 and the losses for the first 6 months of 1976.
The employer expressed its regret of the closing of the Del-
Val facility but indicated that this would permit it to con-
centrate on Nylomatic's survival, thus indicating to the em-
ployees that there was something economically wrong at
the Nylomatic facility. The letter stated that Nylomatic
had lost $250,000 in 1975 and showed a slight profit during
1976 and that increases in wages and benefits are available
only when earnings are there to justify them. The letter
pointed out that the last wage increase at Nylomatic cost in
excess of $70,000 and that the phasing out of the Del-Val
operation Nylomatic would have the highest rates in the
area. The letter stated that, as each plant had to stand on
its own, it was hoped through the efforts described in the
letter that management would be able to make Nylomatic
a profitable enterprise, thus again, indicating that it was
not. The letter concluded by stating that the Company did
not want a third party in the plant because a third party
might create complex working conditions. The Company
might have to hire unnecessary workers and it may have
work stoppages, strikes, or slowdowns, all of which have a
negative effect on the profitability of the plant. The letter
also informed the employees that even though they had
signed authorization cards they still had the right to vote in
an election, and they could vote no to dues, no to strikes,
no to violence, and no to the encouragement of distrust
between us. There is no getting around the fact that this
letter was intended to indicate, and in fact did indicate,
that unionization can lead to the disruption of production
and the loss of plant profitability, which can lead, as shown
at the Del-Val plant, to plant shutdown. The Company did
not point in any way to any objective fact that could cause
economic problems at the plant. It did point, however, to
the fact that there might be slowdowns, shutdowns, work
stoppages, violence, and distrust between the employees
and the management. There is nothing in this record to
indicate that there was ever a strike at the Nylomatic facil-
ity or the Del-Val plant, that there was ever any mistrust
between the Company and the Union, or that there were
ever any slowdowns or work stoppages. These certainly are
not objective considerations as enunciated in the Gissel
case.
The clear implications are that because the Del-Val facil-
ity had lost money it was shut down; that the employees
knew that Nylomatic's economic position was precarious
and that unionization would cause a loss of money, and
therefore the employees were risking the shutdown of this
plant. This same message was reiterated during the meet-
ings with the employees of each shift, 2 days before the
election. The same presentation was given at each meeting.
The employees were told again that the Del-Val facility
had suffered financial losses over many years and that
management had finally decided to close it down. Phillips
told the employees that, if they did not go union, when the
Company profited, they would profit. This statement
constitutes a clear promise of benefit if they voted against
the Union. Carl Engle, the sales manager, told the employ-
ees that the plant was very profitable without a union and
warned that unionization could hurt business because, if a
union were in the plant, they could not promise that sales
would be delivered on time because of strikes; and he
therefore could not promise customers an exact date for
deliveries, and in these types of circumstances a union
could hurt business. Again, no objective facts were pre-
sented to support management's thesis that unionization
would have dire economic consequences at Nylomatic.
Management admitted that these meetings were basically
in reference to the upcoming election.
It is my conclusion that the actions of the Respondent,
as enumerated above, were part of its grand design to in-
timidate employees by suggesting, in the absence of any
objective criteria, that unionization can lead to plant shut-
down. The Respondent's conduct clearly shows that it in-
tended the Del-Val closing to have an impermissible effect
on the employees' deliberations concerning unionization at
Nylomatic, and in my view is violative of Section 8(a)(1) of
the Act.
The complaint also alleges that the Respondent's phase-
out and shutdown of operations at the Del-Val facility
were timed and implemented in order to affect the out-
come of the election and to discourage the employees at
Respondent's Nylomatic plant from designating a labor or-
ganization as their collective-bargaining representative.
In Textile Workers Union of America v. Darlington Manu-
facturing Co., et al., 380 U.S. 263, the Supreme Court stat-
ed:
If the persons exercising control over a plant that is
being closed for anti-union reasons (I) have an inter-
est in another business, whether or not affiliated with
or engaged in the same line of commercial activity as
the closed plant, of sufficient substantiality to give
promise of their reaping a benefit from the discourage-
ment of unionization in that business; (2) act to close
their plant with the purpose of producing such a re-
sult; and (3) occupy a relationship to the other busi-
ness which makes it realistically foreseeable that its
employees will fear that such business will also be
closed if they persist in organizational activities, we
think that an unfair labor practice has been made out.
Thus, the Supreme Court states that although an employer
has an absolute right to terminate its entire business for
any reason it pleases, it may not partially terminate a busi-
ness where such termination is motivated by a purpose to
chill unionism in any of its remaining plants, and where the
employer may reasonably have forseen that such closing
would likely have that effect.
As the Board had made no findings with respect to the
effect of the closing on employees at any other of the Em-
ployer's plants, the case was remanded to the Board for
further proceedings.
In the remand, Darlington Manufacturing Company,
Deering Milliken & Co., Inc., and Deering Milliken, Inc., 165
NLRB 1074, 1083 (1967), the Board stated:
In concluding that such a purpose to chill existed,
we have relied upon what we consider to be fair infer-
332
ELECTRICAL PRODUCTS DIV. OF MIDLAND-ROSS CORP.
ences arising from the totality of the evidence, consid-
ered in the light of the then-existing circumstances.
Respondent argues that the Supreme Court is requir-
ing "concrete, specific, independent proof" of a pur-
pose to chill unionism. Insofar as this formulation is
intended to be a restatement of the Court's standard
that there must be "a showing of motivation which is
aimed at achieving the prohibited effect," we concur.
But the requisite motivation may be proved by some-
thing less than direct evidence, rarely available in
cases of this kind. In this branch of the law, as in all
others, proof of motive may be supplied by circum-
stantial evidence which affords a sound basis for
drawing inferences.
The Board found that Darlington did intend to chill
unionism in its remaining plants, based primarily upon re-
peated expressed hostilities of the Company toward the
Union. In George Lithograph Company, 204 NLRB 431
(1973), the Board found that the chilling may be inferred
from the foreseeability of the employer's actions upon the
employees.
I have previously found that this was a partial closing, in
that the employer closed only its Del-Val facility and the
Nylomatic facility remained an operating concern, as did
27 of the employer's other plants. The General Counsel
and the Charging Party do not appear to question that the
Respondent's decision to close the Del-Val facility was
based upon legitimate economic considerations. But they
argue that the employer nevertheless timed and implement-
ed the closing to have the maximum impact on the employ-
ees at the Nylomatic facility to influence their decision on
the forthcoming election. The employer on the other hand
contends that the Del-Val facility was closed for economic
reasons only ard that the timing and implementation of
the closing was due to the lack of customer orders because
they pulled their tools out and canceled further orders, and
by the fact that the Company had to notify the landlord by
June 30 of its intention to cancel its lease. It is a fact that
the lease extended until December 31, and if it was not
canceled by June 30 it would automatically renew itself for
another year. There is no question but that the lease had to
be canceled prior to June 30, and I so find. While the noti-
fication to the landlord of its desire to cancel the lease by
June 30 was a necessary requirement and explains why it
was necessary to reach a decision by that date, it fails to
explain why the facility was actually closed so precipitous-
ly, and why the employees at Nylomatic had to be notified
pnor to the July I election. The Company argues that it
had to notify the employees at the same time it notified the
landlord because the fact of the closing would have been
leaked to the employees by the landlord and this would
have upset the employees more than if the employer had
notified them. I find this very hard to believe because there
is no evidence in this record to even suggest that the land-
lord was aware of the union election at the Nylomatic
plant or would have been in any way concerned. It is my
view that the employer could have notified the landlord of
its decision to close the plant at any time prior to June 30
without also notifying the employees of the impending
phaseout of the Del-Val operation. In my view, this was
not a consideration at the time the employer made its deci-
sion to close but in fact was an afterthought as a defense to
the impromptu notification of its impending phasing out of
the Del-Val facility.
There are other considerations, as suggested by the Gen-
eral Counsel, that give rise to the conclusion that the tim-
ing and implementation of the closing was done to chill
unionism at the Nylomatic plant. In this connection, it is
noted that although the Del-Val facility had been losing
money since 1974 it was not until April of 1976, shortly
after the filing of the union petition, that management at
Del-Val began seriously to consider the closing of the Del-
Val facility. At this point, they commissioned the prepara-
tion of the PAR. This PAR was submitted on June 4, with
the recommendation to close the Del-Val facility, and was
finally approved on that recommendation on June 17, just
2 weeks prior to the July I election.
Also the preparation of the PAR and the decision to
close the Del-Val facility were made in a very secretive
manner, and the Company in no way notified the Union of
its intention to close the plant until the decision had been
finally made. And even then, the employer did not notify
the Union until June 22, 5 days after the decision had been
made and 9 days before the election at the Nylomatic
plant. At this point, the Company took very careful steps
to notify the employees aL the Nylomatic plant of the clos-
ing of the Del-Val facility. These various steps to notify the
Nylomatic employees of the Del-Val closing and the conse-
quences from that have been discussed in a previous sec-
tion of this decision and found to be violative of Section
8(a)( ).
The one factor which I consider most important is the
timing of the notification to the Nylomatic employees. It is
my view that the Del-Val facility would ultimately have
closed for economic considerations, and in all probability
this would have occurred around December 31. Although I
consider the closing to have been purely for economic rea-
sons, its acceleration and the timing of the notification to
the Nylomatic employees were designed to have an impact
on the Nylomatic employees.
Thus, it is my conclusion that the Respondent could
have notified the landlord prior to June 30 of its intention
not to renew the lease, without the landlord exposing the
Respondent's hand to the employees, because there is no
evidence to indicate that the landlord was even concerned
or knew about the Union's organizational campaign at the
Nylomatic plant. The Del-Val employees were due to take
their vacations beginning July 1. the date of the election.
They' were to return to the plant on July 19. At the time the
Employer notified the employees of its intention to phase
out the Del-Val facility, it gave no exact date when the
closeout would be final. Thus, when the Del-Val employees
left for their vacation they were not aware of the date upon
which the Del-Val facility would be closed. It is quite possi-
ble that many of them assumed, like Union Representative
Kline, that this was only a threat of closing in order to
affect the vote of the Nylomatic employees. Needless to
say. the Respondent could have withheld the notice of
June 22 and notified the employees of its intent to close
after the election so that it would not have interfered with
the election. This brings me to the inescapable conclusion
333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent's sole purpose of announcing the clos-
ing of the Del-Val facility on June 22 was to chill unionism
at the Nylomatic plant. Not only was this a foreseeable
result, but in fact did occur, as several of the employees
testified that once they learned of the fate of the Del-Val
facility they knew that the Union was not for them. The
results of the election also demonstrate this fact. Accord-
ingly, I conclude that by the timing and implementation of
the closing of the Del-Val facility the Employer intended to
chill unionism at the Nylomatic facility and thereby en-
gaged in conduct violative of Section 8(a)(3) and (1) of the
Act. See Darlington, supra.
The complaint also alleges that unit A, as described
above, constitutes an appropriate unit for the purpose of
collective-bargaining; that since June 5, a majority of the
employees in unit A designated the Union as their majority
representative and, since March 10, the Union has de-
manded that Respondent bargain collectively with it; that
since on or about June 17, Respondent has failed, and con-
tinues to fail, to recognize and bargain with the Union
notwithstanding its majority status; and that, because the
Employer's unfair labor practices in violation of Section
8(a)(1) and (3) of the Act are so serious and substantial in
character and effect, the entry of a remedial order requir-
ing the Respondent to recognize and bargain with the
Union in unit A is warranted. Stated otherwise, the Gener-
al Counsel is requesting that a bargaining order be entered
against Respondent because, following its refusal to bar-
gain with the Union, it engaged in unfair labor practices so
serious as to make the holding of another election impossi-
ble.
In N.L.R.B. v. Gissel Packing Co., inc., 395 U.S. 575, the
Supreme Court approved the issuance of bargaining orders
where an employer's conduct had a tendency to undermine
the union's majority strength and impede the election pro-
cess. The Court stated that in certain cases where the em-
ployer's conduct is so outrageous and pervasive the Board
and the Courts have approved the issuance of a bargaining
order. In such cases, however, the Court pointed out that
there must be a showing that at one point the union repre-
sented a majority of the employees involved. In fashioning
the remedy, the Board can take into consideration the em-
ployer's unfair labor practices and the likelihood of their
recurrence in the future. If the Board finds that the possi-
bility of erasing the effects of past practices and of ensur-
ing a fair election is slight, then, on balance, a bargaining
order should issue.
The General Counsel argues that this is an appropriate
case for a Gissel bargaining order, in view of the fact that
the Union did at one point have a majority status in unit A
and that the Employer's unfair labor practices which I
have previously found, will have a lasting effect in the
minds of the employees in the Nylomatic facility and that
the holding of a second election at that facility would be
futile.
I will deal first with the question of whether the Union
ever represented a majority of the employees in an appro-
priate bargaining unit. The employer argues that unit A is
not the appropriate unit to use to determine whether the
Union represented a majority of employees but, on the
other hand, argues that the Union must demonstrate that it
represented a majority of the employees in the unit in
which it petitioned for, which was a unit consisting of all
production and maintenance employees and the toolroom
employees, which would be a combination of unit A and
unit B. Secondly, the Employer argues that the cards sub-
mitted by the General Counsel are invalid because the em-
ployees testified that they were under the impression that
they were signing these cards solely for the purpose of ob-
taining a Board election.
As to the first contention made by the Respondent, it is
true that when the Union petitioned for an election it
sought a unit consisting of all production and maintenance
employees, including shipping and receiving employees
and toolmakers, a unit consisting of approximately 75 em-
ployees. It is this unit that Respondent contends that the
Union is bound by and that its majority status must be
shown among these approximately 75 employees. The
General Counsel argues that it is not the unit that the
Union petitioned for that it must show its majority status
in, but the unit which was in fact found appropriate by the
Board, which is unit A, consisting of only the production
and maintenance employees, a unit of approximately 68
employees.
In the Gissel case the appropriateness of the units in-
volved was not in question. Here, although the Union peti-
tioned for a unit consisting of all production and mainte-
nance unit employees as well as the toolroom employees,
the Regional Director with Board approval found that a
unit consisting of the production and maintenance employ-
ees alone was the appropriate unit. That unit is called unit
A. Unit B consisted of the toolroom employees. On review,
the Board agreed with the Regional Director's unit findings
but gave the employees in the toolroom unit, unit B, an
opportunity to decide whether they wanted to be repre-
sented by the Union or by the Toolworkers Union. It is my
conclusion that it makes no difference what unit is actually
petitioned for by the union involved; the Union's majority
status must be shown at some point in the unit which is
ultimately found to be appropriate by the Board. In this
case, it was the production and maintenance unit, unit A,
and so far as I am concerned, I am bound by this finding
of the Board. As this unit consisted of 68 employees, it is
incumbent upon the General Counsel to establish that at
some point the Union represented a majority of the em-
ployees in that unit.
In support of its conclusion that the Union represented a
majority of the employees in unit A, the General Counsel
called some 38 employees to the witness stand who testified
concerning the authorization cards which they gave to the
Union and which were given by the Union to the Regional
Office in connection with the representation case and
which have been in the exclusive hands of the Regional
Office since that time.
The Respondent objects to the use of cards to establish
the majority status of the Union, apparently taking the po-
sition that the employees signed, dated, and returned these
cards to the Union solely on the belief that they were given
confidentially and for the sole purpose of obtaining an
election before the National Labor Relations Board. In this
connection, the Respondent was permitted wide latitude in
cross-examining each employee as to why he signed the
334
ELECTRICAL PRODUCTS DIV. OF MIDLAND-ROSS CORP.
authorization card. Many of the employees testified that
they signed these cards because they thought that ultimate-
ly there would have to be an election before the Union
would be their representative. Many testified that they
signed the card to obtain additional information about the
Union. The Respondent inquired quite extensively into the
subjective intent of the employees in signing authorization
cards.
Generally, however, the subjective intent of the employ-
ee in signing the union authorization card is irrelevant.
In the Gissel case the Court was confronted with the
problem of whether the authorization cards could be taken
at face value or whether you could inquire into the subjec-
tive intent of the signer. The Court stated at 584:
Under the Cumberland Shoe doctrine,'2 if the card
itself is unambiguous (i.e., states on its face that the
signer authorizes the Union to represent the employ-
ees for collective bargaining purposes and not to seek
an election), it will be counted unless it is proved that
the employee was told that the card was to be used
solely for the purpose of obtaining an election.
In deciding this matter, the Court in the Gissel 3 deci-
sion stated:
In resolving the conflict among the circuits in favor
of approving the Board's Cumberland rule, we think it
sufficient to point out that employees should be bound
by the clear language of what they sign unless that
language is deliberately and clearly cancelled by a
union adherent with words calculated to direct the
signer to disregard and forget the language above his
signature. There is nothing inconsistent in handing an
employee a card that says the signer authorizes the
Union to represent him and then telling him that the
card will probably be used first to get an election....
We cannot agree with the employers here that employ-
ees as a rule are too unsophisticated to be bound by
what they sign unless expressly told that their act of
signing represents something else....
We agree, however, with the Board's own warnings
in Levi Strauss & Co., 172 NLRB 732 and fn. 7 (1968),
that in hearing testimony concerning a card challenge.
trial examiners should not neglect their obligation to
ensure employee free choice by a too easy mechanical
application of the Cumberland rule. We also accept the
observation that employees are more likely than not,
many months after a card drive and in response to
questions by company counsel, to give testimony dam-
aging to the Union, particularly where company offi-
cials have previously threatened reprisals for union ac-
tivity in violation of § 8(aXl). We therefore reject any
rule that requires a probe of an employee's subjective
motivations as involving an endless and unreliable in-
quiry.
In applying these principles to the case at bar, it appears
that unless the employees were told by the solicitor of the
card or some other union adherent or union representative
12 Cumberland Shoe Corporation, 144 NLRB 1268 (1963),
1 Gissel, supra at 606-08.
that the cards were solely for the purpose of obtaining an
election, the card is valid and should be counted towards
establishing the Union's majority status notwithstanding
the employees' subjective intent. The record is clear in this
case that at no time prior to the mailing of the cards to the
Nylomatic employees did the Union have any conversa-
tions with the employees. The only contact with any em-
ployee was a call from an employee to the Union which
precipitated the March I mailing of the letter and the au-
thorization cards. The response by the employees was so
great that around March II the Union had a second mail-
ing of the letter and the authorization cards. It was after
this that the Union had several meetings with the employ-
ees. There is no evidence in this record that any employee
was told by any union representative, union adherent, or
any solicitor of cards that the purpose of the card was
solely to get an election. In fact, none of the 38 employees
who testified indicated that they were told by anybody that
the sole purpose of this card was to obtain an election. On
the contrary, 28 of the 38 employees who were called to
testify concerning their cards testified that they read the
card, that they signed the card on or about the date indi-
cated thereon, and returned the same to the Union. Eight
testified that they read the cards, signed them, and re-
turned them to the Union. However, they indicated that
the date placed on the union card was not put there by
them, but they did indicate that they signed the card
around the date placed thereon. Roy Albert, the union rep-
resentative who was in charge of the organizational cam-
paign at the Nylomatic plant, testified that as these cards
were received he checked them for signature and date, and
those cards that were not dated he placed the date thereon
on the day on which the cards were received through the
mail. This testimony is uncontradicted, and I accept it as
being the date on which the card was returned to the
Union.
One employee, James Houston, testified that he received
the card and signed it, but could not recall returning it to
the Union. The date on that card is "11/3/76." By way of
explanation of that date, Houston testified that he was in
the military and it is their fashion to first put the day and
then the month and the year. and this may be the reason
why the card was dated in this manner. But in an) event,
regardless of the date placed on the card, Houston testified
that he signed the card around the time that the others had
received their cards, and most of these cards were signed in
March and Houston's card was among those mailed in by
the Union to the Region on March 19. 1 accept this card as
a valid authorization card. One other employee, Grace
Burns, testified that she signed a card which looked like the
card that was presented to her and returned it to the
Union, but since it was out of her possession, she could not
say whether it was her signature or not or that this was in
fact the card she signed. She admitted that she had signed
and returned to the Union a card around the date on the
card which was presented to her and introduced into evi-
dence. This card was sent to the Region and kept there
until the hearing. In view of her testimony that she did in
fact sign an authorization card on the date in question, I
accept this card as being the valid authorization card of
Grace Burns.
335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of the employees who gave testimony relating to their
union authorization cards testified to the fact that they
read the card and that they understood what the card
meant, and none of them testified that they were misled by
any union representative or union adherent. As these cards
are unambiguous on their face and clearly authorized the
Union to represent the signer as his collective-bargaining
representative and to request negotiations from any em-
ployer as his bargaining agent, it is my conclusion that
these are valid authorization cards and may be used to
demonstrate the majority status of the Union. Accordingly,
it is my conclusion that the General Counsel has estab-
lished that a majority of the employees in the production
maintenance unit, unit A, the appropriate unit, as found by
the Board, signed authorization cards designating the
Union as their bargaining representative.
As indicated previously, the Union lost the election of
July 1, as a majority of the employees voted against repre-
sentation by the Union. The General Counsel contends
that this change of heart in the employees was a result of
the Employer's unfair labor practices which chilled union-
ism at the Nylomatic facility, that a fair election could not
be held, and that a bargaining order is appropriate under
Gissel. In situations like this, where a union enjoys a major-
ity status on a given date in an atmosphere free of unfair
labor practices and then subsequently loses that majority
in a Board election, we must look to intervening circum-
stances to determine what caused the loss of majority sta-
tus. If there were intervening unfair labor practices which
can be attributable to the loss of majority, then a bargain-
ing order may be appropriate. The question is whether the
employer's conduct has or will prevent the employees from
exercising their free choice in a second election.
In the circumstances of this case, the Employer's unfair
labor practices being the 8(a)(1) violations of notifying its
employees of the closing the Del-Val facility, its implied
threats that if unionization were gained at the Nylomatic
plant a similar result will occur there, and the employer's
timing of the notification to these employees, which I have
found to have a chilling effect on the employees, it neces-
sarily follows that a free election cannot be held in these
circumstances. Accordingly, it is my conclusion that a Gis-
sel remedy in these circumstances is appropriate. Because
the employer refused to bargain with the representative of
a majority of its employees in an appropriate unit and be-
gan its unlawful unfair labor practices on or about June 22,
I shall order that the employer be required to recognize
and bargain upon request with the Union as of June 22.
See Trading Port, Inc., 219 NLRB 298 (1975).
IV I HE EFFE(-IS OF THE UNFAIR LABOR PRACI(lC ES UPON
(OMMER CE
The activities of the Respondent set forth in section 1,
above, occurring in connection with Respondent's opera-
tions, have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
v THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. Having found
that Respondent violated Section 8(a)(5) of the Act by fail-
ing to bargain with the Union regarding its decision to
close down the Del-Val facility and its failure to bargain in
good faith with the Union regarding the effects of such
decision upon the employees, I shall order that Respondent
be required upon request to bargain collectively with the
Union concerning its decision to close the Del-Val facility
and the possible reopening of that facility.' 4
I have found that the timing and the implementation of
the closing were discriminatory, in violation of Section
8(a)(3), and designed to affect the desires of the employees
in their voting for the Union at the Nylomatic plant. As
this unilateral action on the part of the employer, as well as
the discriminatory nature of the action, caused all of the
employees at the Del-Val facility to be terminated on July
19, had the Resoondent honored its statutory obligation to
bargain concerning the decision to close and the effects of
the closing, these employees might not have been terminat-
ed at all, but may have retained their jobs at least until the
Respondent had fulfilled its bargaining obligations or until
the plant would have been closed as a result of the expira-
tion of the lease on December 31.'5 Effectuation of the
Act's policies requires that the employees whose statutory
14 Under the circumstances in this case, the General Counsel does not
seek a reopening remedy. In view of the Board's reluctance to order the
resumption of operations at a closed facility, particularly where that facility
has been closed for some time and the Respondent does not own the prem-
ises. such a requirement would be excessively burdensome. See Burroughs
( orporation, 214 NLRB 571 11974) Normally. as this plant would have been
closed ultimately for economic reasons and would have been closed for
some time, no useful purpose would be served by requiring further bargain-
ing with respect to the decision to close the plant. Here, however, the timing
of the notice to close as well as the closing were so timed and implemented
as to cause a chilling effect upon the employees in the Nylomatic plant
Under these circumstances, I feel that the Company should bargain with the
Union concerning its decision to close the plant.
I When the Respondent notified the Union of its decision to close on
June 22. it gave eno date as to the final closing. 'Therefore there is no way I
can determine when the plant would have been closed by its fulfillment of
all its customers' orders. Howeser. certain factors here do indicate that had
it not been for the intervening petition for representation by the Union. this
plant might well have continued until the expiration of the lease on Decem-
her 31. In this regard. it is noted that during April. May, and June of 1976.
employees were recalled who had been laid off and the work force was
increased beyond its normal capacity. The Respondent argues that this was
done because certain machinery was repaired which had been sitting idle.
the, had an excess amount of backlog orders because of the broken machin-
ers. and the) had to have additional employees to perform this work On the
other hand. the General Counsel argues that the employer recalled and
rehired additional employees for the sole purpose of cleaning up all the
work so that they could close the plant as soon as possible. The General
('ounsel's witnesses testified that in June, around the time the Company
announced its closing. there were many orders to be filled in the plant. It is
a fact that many of the orders, along with the machinery. were shipped to
the Nylomatic facility and were ultimately worked on in January and Feb-
ruary of 1977. tinder these circumstances. I conclude that the Respondent's
hiring of additional personnel during the period involved, April. May, and
June, was for the sole purpose of cleaning up the work around the plant so
that the facilits could be closed as soon as possible Thus, it is my conclu-
sion that if things had been left alone by the Respondent the plant would
have operated until December 31.
336
ELECTRICAL PRODUCTS DIV. OF MIDLAND-ROSS CORP.
rights were invaded by reason of the Respondent's unlaw-
ful unilateral action and the discriminatory timing and im-
plementation of the plant closing and who may have suf-
fered losses in consequence thereof be reimbursed for such
losses until such time as the Respondent remedies its viola-
tions by doing what it should have done. Accordingly. I
shall order that Respondent make whole all the employees
on the payroll at the Del-Val facility on July I for any loss
of pay suffered by them as a result of Respondent's refusal
to bargain about the decision to close the plant and its
failure to bargain in good faith about the effects of the
closure and its discriminatory timing and implementation
of the closing from July I to December 31. the date I have
found that the plant would have been closed by the fulfill-
ment of all of its customers' orders, by paying to each of
them a sum of money equal to the amount each would
have earned as wages during that period. Backpay shall be
computed upon the earnings which the terminated employ-
ees would normally have received during the applicable
period, less any interim earnings, and shall be computed on
a quarterly basis in the manner set forth in F W. Wool-
worth Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). Interest thereon shall
begin 5 days following issuance of this decision.
I have found that Respondent engaged in unfair labor
practices forbidden by Section 8(a)(l), (3), and (5) of the
Act in the timing and implementation of the closing of the
Del-Val facility and in its refusal to bargain about the clos-
ing and its effects, and that such activities by Respondent
were pervasive and interfered with the exercise of a free
choice if an election were held and also tended to foreclose
the possibility of holding a fair election: that Respondent
committed a violation of Section 8(aX5) of the Act by re-
fusing to recognize the Union in an appropriate unit at the
Nylomatic facility, that a bargaining order was proper, that
an election was not required, and that the employees' senti-
ment, once expressed in cards, will be protected by a bar-
gaining order without an election.
If, in the bargaining concerning the closing of the Del-
Val facility and its effects upon the employees, the parties
should agree to resume operation of that facility, the Re-
spondent is required to offer all the former Del-Val em-
ployees in the appropriate unit reinstatement to their for-
mer jobs or to substantially equivalent positions if their
former jobs are no longer available. If no agreement to
resume operations is reached, the Respondent shall estab-
lish a preferential hiring list for all such Del-Val employees
following its established seniority system, and if operations
are ever resumed at the Del-Val facility or a similar opera-
tion is established in the area, to offer reinstatement to all
such employees. Additionally, Respondent shall establish a
preferential hiring list separately for each of its other plants
now in existence or hereafter established in the continental
United States, including the Nylomatic facility, with priori-
ty of employment on each such list to the former employ-
ees of the Del-Val facility in accordance with such system
of seniority or other nondiscriminatory practice heretofore
applied by Respondent in the conduct of its business; and
thereafter Respondent shall offer such employees reinstate-
ment and employment at each such plant as such employ-
ment becomes available and before other employees are
hired for such work, together with one-way expense and
travel thereto of said employee and his dependents. and
other necessary and reasonable expenses of relocation;
provided, that any such employee's failure to apply for or
accept reinstatement and employment at any of such
plants on such preferential basis shall not thereafter dis-
qualify him from such preferential reinstatement and em-
ployment at any other of Respondent's said plants. nor
shall it excuse Respondent from the requirement of offer-
ing him such reinstatement and employment, on a prefer-
ential basis, at such of its other said plants at which said
employee has not heretofore been offered and refused such
reinstatement and preferential employment; but Respon-
dent may remove from each such specific plant preferential
hiring list the name of any employee who has been offered
but has refused or rejected preferential employment at that
specific plant.
Upon the basis of the foregoing findings of fact and the
entire record of this case I make the following:
CON( t LSIONS OF LAW
I. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce as
defined in Section 2(6) and (7) of the Act.
2. The Union is a laboi organization within the meaning
of Section 2(5) of the Act.
3. By posting a notice on June 22, at its Nylomatic facil-
ity informing the Nylomatic employees of the phaseout
and closing of the Del-Val facility; on June 23, informing
its Nylomatic employees by letter of the phaseout of the
Del-Val facility and warning employees of the negative ef-
fect that unionization would have on the Nylomatic plant's
profitability; and on June 29, through plant manager Rob-
ert Worth, orally informing employees of the phaseout of
the Del-Val facility. Respondent impliedly threatened its
Nylomatic employees that it would close the Nylomatic
facility in the event of unionization in violation of Section
8(aX I ) of the Act. By the timing and implementation of the
closing of the Del-Val facility for the purpose of discourag-
ing membership in, sympathy for, or activity of, the Union
and to chill the exercise of the Section 7 rights of its em-
ployees, Respondent has engaged in conduct violative of
Section 8(a)(3) of the Act.
4. By discouraging membership in the Union or any
other labor organization of its employees and by discrimi-
nating in regard to their hire, tenure, or other terms and
conditions of employment, Respondent has violated Sec-
tion 8(a)(3) of the Act.
5. All production and maintenance employees, includ-
ing shipping and receiving employees, janitors, and truck-
drivers at Respondent's Del-Val plant, but excluding all
employees in the bargaining unit for which the Toolmakers
are certified, and all office clerical employees, lab techni-
cians, technical employees, professional employees, guards,
and supervisors, as defined in the Act, constitute an appro-
priate unit for the purpose of collective bargaining.
6. By refusing to bargain collectively with the Union in
the appropriate unit listed in paragraph 5, above, about its
decision to close the Del-Val facility, Respondent has en-
gaged in conduct in violation of Section 8(a)(5) of the Act.
337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. By bargaining in bad faith with the Union in the bar-
gaining unit described in paragraph 5, above, about the
effects of the closing of the Del-Val facility, the Respon-
dent has engaged in conduct violative of Section 8(a)(5) of
the Act.
8. All production and maintenance employees, includ-
ing shipping and receiving employees, production control
clerks, and mold maintenance employees, but excluding all
toolmakers, apprentice toolmakers, toolroom leaders, pro-
fessional and office clerical employees, lab technicians,
guards, and supervisors, constitute an appropriate unit at
the Respondent's Nylomatic facility.
9. Since on or about June 22, and at all material times
thereafter, the Union represented a majority of the employ-
ees in the unit set forth above in paragraph 8, and has been
the exclusive representative of said employees for the pur-
pose of collective bargaining within the meaning of Section
9(a) of the Act; Respondent was on that date, and has been
since, legally obligated to recognize and bargain with the
Union as such.
10. By refusing to recognize and bargain collectively
with the Union in regard to the employees in the unit set
forth in paragraph 8, above, since on or about June 22. the
Respondent has committed unfair labor practices pro-
hibited by Section 8(a)(5) and (1) of the Act.
I . The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 16
The Respondent, Electrical Products Division of Mid-
land-Ross Corporation, Tullytown and Morrisville, Penn-
sylvania, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees at its Nylomatic facility with
plant closure if they support the Union by posting notices
on the Nylomatic facility bulletin board announcing the
closure of other Midland-Ross facilities.
(b) Threatening employees at its Nylomatic facility with
plant closure if they supported the Union by mailing letters
to the Nylomatic employees informing them of the closure
of its Del-Val facility, or any other Midland-Ross facility,
warning employees of the negative effect that unionization
would have on the Nylomatic plant's profitability.
(c) Threatening employees at its Nylomatic facility with
plant closure if they supported the Union by orally inform-
ing employees of the phaseout of the Del-Val facility and
other Midland-Ross plant closures.
(d) Timing and implementing a plant closure for the
1e In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions. and Order, and all objections thereto shall be
deemed waived for all purposes.
purpose of discouraging membership in, sympathy for, and
activities on behalf of the Union.
(e) Discouraging membership in United Glass and Ce-
ramic Workers of North America, AFL-CIO, CLC, or any
other labor organization of its employees, by discriminat-
ing in regard to hire, tenure, or any other term and condi-
tion of employment.
(f) Failing and refusing to bargain in good faith with the
Union as the exclusive bargaining representative of all of
the employees in the above-described appropriate unit at
the Del-Val facility concerning its decision to close the
Del-Val facility.
(g) Failing or refusing to bargain in good faith with the
Union as the exclusive bargaining representative of the em-
ployees in the above-described appropriate unit at the Del-
Val facility about the effects of the closing of that facility
on its Del-Val employees.
(h) Failing or refusing to recognize and bargain with the
Union as the exclusive bargaining representative of its em-
ployees in the above-described appropriate unit at the Ny-
lomatic facility.
(i) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, recognize and bargain with the Union
as the exclusive representative of all the employees in the
above-described unit at the Del-Val facility concerning its
decision to close the Del-Val plant.
(b) Upon request, recognize and bargain with the Union
as the exclusive representative of the employees in the
above-described unit at the Del-Val facility concerning the
effects of the closing of the Del-Val facility on the Del-Val
employees.
(c) Upon request, recognize and bargain with the Union
as the exclusive representative of the employees in the
above-described appropriate unit at the Nylomatic facility.
(d) Make whole all employees or former employees of
the Del-Val facility who were on the payroll as of July 1,
for any loss of pay suffered as a result of the discrimination
against them on that date until December 31, the date on
which the plant would have closed by fulfilling all of the
customer orders and expiration of the lease, with interest
thereon beginning 5 days after the issuance of this Deci-
sion. Place all of the employees who were employed at the
Del-Val facility on July 1 on a preferential hiring list sepa-
rately for each of its other plants now in existence or here-
inafter established in the continental United States, includ-
ing the Nylomatic facility, with priority of employment on
each such list to said employees in accordance with such
system of seniority or other nondiscriminatory practices
heretofore applied by Respondent in the conduct of its
business and thereafter offer such employees reinstatement
and employment at each such plant in the manner set forth
in the part of this decision entitled "The Remedy."
(e) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all pay-
roll records and reports and all other records required to
ascertain the amount, if any, of any backpay due under the
terms of this recommended order. Post at all of its facilities
338
ELECTRICAL PRODUCTS DIV. OF MIDLAND-ROSS CORP.
throughout the United States, including the Nylomatic fa-
cility at Morristown, Pennsylvania, copies of the attached
notice marked "Appendix." 7 Copies of said notice, after
being signed by a duly authorized representative of Re-
17 In the event that this Order is enforced by a judgment of the United
States Court of Appeals. the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board"
spondent, shall be posted by it immediately upon receipt
thereof, in conspicuous places, including all places where
notices to employees are customarily displayed. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
IT Is FU'RTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not found herein.
339