Epe, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1987

284 N.L.R.B. 191 (N.L.R.B. 1987)

EPE, INC, 191
EPE, Inc. and Amalgamated Clothing and Textile
Workers Union, AFL-CIO-CLC. Cases 5-CA-
16758, 5-CA-17626, 5-CA-17716 5-CA-
17758, and 5-CA-17892
11 June 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 5 November 1986 Administrative Law Judge
Walter H. Maloney Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed cross-excep-
tions and a brief in support and in response to the
Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions 2 and to adopt the recommended Order
as modified.3
, The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 In excepting to the judge's conclusion that the Respondent violated
Sec. 8(a)(5) and (1) of the Act by, inter alia, refusmg to abide by its col-
lective-bargaining agreement with the Union, the Respondent contends
that the Board's decisions in Lauer's Furniture Stores, 246 NLRB 360
(1979), and MPE, Inc., 226 NLRB 519 (1976), warrant a contrary result.
We find it unnecessary to pass on the Board's holdings in those cases
since we find that they are distinguishable on the facts from the present
case. Furthermore, in adopting the judge's finding of that violation, we
emphasize that any evidence in this case showing the Respondent's
ammus toward the Union is immaterial to our conclusion. Accordingly,
we place no reliance on the judge's discussion regarding this subject.
We additionally note that after the Respondent in the presence of other
unit employees Unlawfully threatened to arrest the Union's shop steward
for distnbuting union literature in a nonworking area while he was on his
own time, the Respondent posted a notice about a month later informing
its employees that they, had the right to engage in this activity The Judge
found that "[i]ii light of the Respondent [sic] long and checkered history
of committing unfair labor practices a posted notice without an accompa-
nying Board order and court decree is of little value . . ." While we
agree that the Respondent's conduct violated Sec 8(aX1), we reject the
judge's reliance on the Respondent's alleged proclivity for violating the
Act as grounds for concluding that its attempted cure was ineffective.
We find, rather, that the posted notice was insufficient to negate the un-
lawful no-solicitation rule because, inter aha, it was untimely, it did not
specifically refer to the incident where the violation occurred, and the
Respondent continued to engage in illegal conduct. See Passavant Memo-
rial Hospital, 23'7 NLRB 138 (1978).
3 We do not adopt the judge's inclusion of a "visitatonal clause" in his
recommended Order. In the circumstances of this case, we find it unnec-
essary to include such a remedial provision and we shall modify the
Order accordingly.
The General Counsel has excepted to the Judge's failure to include in
his recommended Order an affirmative remedy for the Respondent's
8(0(5) and (1) violation in unilaterally instituting a new attendance
policy. We shall further modify the Order to correct this inadvertent
error.
284 NLRB No. 21
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, EPE, Inc., Fredericksburg, Virginia, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
I. Insert the following as paragraph 2(e) and re-
letter the subsequent paragraphs accordingly.
"(e) Rescind the new attendance policy for the
unit employees that was unilaterally implemented
on 10 March 1986, and remove from the files of
the employees any disciplinary warnings, notices,
or memoranda issued since that date which resulted
from the application of that attendance policy.
Offer all employees discharged, suspended, or oth-
erwise disciplined because of the institution of the
new attendance policy immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other ben-
efits suffered as a result of the discrimination
against them, in the manner prescribed in E W.
Woolworth Co., 90 NLRB 289 (1950), with interest
as provided for in New Horizons for the Retarded.4
2. Substitute the following for paragraph 2(t) and
reletter as paragraph 2(g).
"(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
3. Substitute the attached notice for that of the
administrative law judge.
4 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S C § 6621.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to supply Amalgamated
Clothing and Textile Workers Union, AFL-CIO-
CLC, with requested information which is relevant
to the Union's responsibility to act as bargaining
agent for our Fredericksburg, Virginia production
and maintenance employees.
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT unilaterally change wage rates,
job descriptions, attendance policies, or any other
terms or conditions of employment of our Freder-
icksburg, Virginia production and maintenance em-
ployees without notifying and bargaining with the
Union concerning such changes, if requested to do
SO.
WE WILL NOT bypass the Union and deal direct-
ly with bargaining unit employees concerning
wages, hours, and terms and conditions of employ-
ment, including grievances.
WE WILL NOT refuse to honor the terms of the
existing collective-bargaining agreement between
the Union and ourselves covering the Fredericks-
burg, Virginia production and maintaince employ-
ees.
WE WILL NOT withdraw recognition from the
Union, including its shop steward, as the exclusive
collective-bargaining representative of our Freder-
icksburg, Virginia production and maintenance em-
ployees.
WE WILL NOT impose on you an unlawful no-
distribution rule and-WE WILL NOT threaten you
with reprisal for breaking such a rul-e.
WE WILL NOT tell you that nonunion employees
are eligible to enjoy company benefits which are
withheld from unionized employees.
WE WILL NOT tell you to refrain from assisting
other employees in processing grievances or to re-
frain from engaging in any other protected con-
certed activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain collectively in
good faith with Amalgamated Clothing and Textile
Workers Union, AFL-CIO-CLC as the exclusive
collective-bargaining representative of all of our
Fredericksburg, Virginia production and mainte-
nance employees.
WE WILL give effect to a collective-bargaining
agreement which we entered into with the Union,
dated 1 April 1985, including wage reopener provi-
sions of that contract, and WE WILL make pay-
ments to the pension and profit-sharing plans, as re-
quired by that contract, with interest.
WE WILL furnish the Union the information it
has requested, and WE WILL furnish the Union in a
timely manner any additional information which it
requests which is relevant to its duty to act as the
bargaining representative of our Fredericksburg,
Virginia production and maintenance employees.
WE WILL rescind the new attendance policy for
the unit employees that was unilaterally implement-
ed on 10 March 1986, and remove from the files of
our employees any disciplinary warnings, notices,
or memoranda issued since that date which resulted
from the application of our attendance policy.
WE WILL offer all employees discharged, sus-
pended, or otherwise disciplined because of the in-
stitution of the new attendance policy on 10 March
1986 immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and WE WILL make them whole
for any loss of earnings and other benefits suffered
as a result of the discrimination -against them, with
interest.
EYE, INC.
Paula S. Schaeffer, Esq., for the General Counsel.
Bruce Dunton, Vice President and Regional Director, of
Gaithersburg, Maryland, for the Charging Party.
James Allan Smith and Robert Steve Ensor, Esqs., of At-
lanta, Georgia, for the Respondent.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY JR., Administrative Law Judge.
This case came on for hearing before me at Culpeper,
Virginia, on consolidated unfair labor praetice com-
plaints" issued by the Regional Director, which allege
that Respondent EPE, Inc. 2 violated Section 8(a)(1) and
1 The principal docket entries in this case are as follows.
Charge filed by Amalgamated Clothing and Textile Workers Union,
AFL-CIO-CLC (Union) against the Respondent in Case 5-CA-17626 on
November 12, 1985, first amended charge filed on December 11, 1985,
second amended charge filed on April 3, 1986; charge filed by Union
against the Respondent in Case 5-CA-17716 on December 30, 1985, first
amended charge filed on April 3, 1986; charge filed in Case 5-CA-17758
by Union against the Respondent on January 15, 1986, first amended
charge filed on April 3, 1986, first consolidated complaint in Cases 5-
CA-17626, 5-CA-17716, and 5-CA-17758 issued by the Regional Direc-
tor on April 17, 1986; Respondent's answer filed on April 29, 1986;
charge filed by Union against Respondent m Case 5-CA-17892, on May
7, 1986, order consolidating Case 5-CA-17892, with other cases and
second consolidated complaint issued therein by Regional Director on
May 9, 1986; Respondent's answer to second consolidated complaint filed
on May 19, 1986, charge filed in Case 5-CA-16758, by Union against Re-
spondent on October 22, 1984, complaint issued against Respondent by
Regional Director in Case 5-CA-16758 on December 6, 1984, amended
complaint issued therein on December 14, 1984, Respondent's answer
filed in Case 5-CA-16758 on December 17, 1984, further amendments to
complaint in Case 5-CA-16758 issued on May 9, 1986, and August 8,
1986, by the Regional Director and case consolidated with other out-
standing cases on August 11, 1986; hearing held in Culpeper, Virginia, on
August 26-28, 1986
2 Respondent admits, and I find, that it is a California corporation,
which maintains a factory and office at Fredericksburg, Virginia, where
it is engaged in the manufacture and nonretail sale and distribution of "re-
manufactured" or used auto parts In the precedmg 12 months, Respond-
ent has sold and shipped directly from its Fredericksburg, Virginia plant
to points and places located outside the Commonwealth of Virginia
goods and products valued in excess of $50,000. Accordingly, Respond-
ent is an employer engaged in commerce within the meaning of Sec. 2(2),
(6), and (7) of the Act The Union is a labor organization within the
meaning of Sec 2(5) of the Act
EPE, INC. 193
(5) of the Act. More particularly, the second consolidat-
ed complaint and the complaint in Case 5-CA-16758
allege that the Respondent withdrew recognition from
the Union as the exclusive collective-bargaining repre-
sentative of its Fredericksburg production and mainte-
nance employees and terminated the existing agreement
between EPE and the Union. Thereafter, Respondent is
alleged to have ceased making contributions to a profit-
sharing plan, which was a part of the canceled agree-
ment and terminated the plan. It then assertedly made
unilateral changes in job classifications and the wage
structure at the Fredericksburg plant, failed to observe
the "Report Payment" provision for Saturday work con-
tained in the canceled agreement, and unilaterally
changed working conditions by imposing a new attend-
ance policy on members of the bargaining unit. The con-
solidated complaint further alleges that the Respondent
bypassed the Union and dealt directly with employees
through a series of one-on-one conferences, that it re-
fused to furnish requested information beating upon the
sale of stock from former shareholders to the Echlin
Corporation, and that it refused to furnish the Union
with information concerning the status of the credit
union. The complaints are replete with other allegations
of refusals to furnish the Union with requested informa-
ton: seniority list, weekly hiring and termination notices,
a listing of unit employees, the names of employees disci-
plined under the newly announced attendance policy,
and timely information on wages, health insurance,
OSHA inspection reports, Department of Labor forms,
and other related information. They also allege that the
Respondent announced that union employees could not
participate in certain companywide profit sharing plans
while nonunion employees might, that Respondent
threatened the shop steward with reprisal far passing out
union literature on company property, and that it in-
structed the shop steward to refrain from processing
grievances or otherwise involving himself with the com-
plaints of other employees. The Respondent asserts that,
because of a sale of stock in the respondent corporation
by four former shareholders to the Echlin corporation, a
new employer came into existence that is not a successor
to the former corporation and that the new owner-em-
ployer had no duty to honor the existing collective-bar-
gaining agreement or to remedy unfair labor practices
committed by the former employer of bargaining unit
employees. It further asserts that it entertained a good-
faith doubt of the majority status of the Union as the
representative of bargaining unit employees because it
was presented with a decertification petition signed by a
majority of unit employees. Therefore, it was under no
further obligation to recognize or bargain with the Union
and admittedly did not do so after November 7, 1985.
On these contentions, the issues were joined.3
a Errors in the transcript have been noted and corrected.
FINDINGS OF FACT
I. THE UNFAIR LABOR PRACTICES ALLEGED
A. Background
Respondent EPE, Inc. 4 is and remains engaged in
manufacturing and selling "renianufactured" or used auto
parts. It receives from a variety of sources used parts
(cores), and processes these parts into items that are then
sold on the open market through a large number of
agents, jobbers, and retail outlets. Its principal products
are brakeshoes, clutches, discs, calipers (for disc brakes),
and water pumps. When it was operated by its previous
shareholders, Respondent's headquarters was located at
Irvine, California, where it operated, and continues to
operate, another similar plant. Accounting and adminis-
trative offices for the corporation remain at this location
in California, although the headquarters of Echlin is in
Branford, Connecticut. The new president of the corpo-
ration maintains his office in Connecticut, whereas
Qvale, the former president, was located in California.
The plant in question in this case is located at Freder-
icksburg, Virginia, and has been in operation at that loca-
tion since about 1977.
On September 28, 1982, the Board certified the Charg-
ing Party as the exclusive collective-bargaining repre-
sentative for the production and maintenance employees
of the Fredericksburg plant of European Parts Exchange,
264 NLRB 224 (1982). That corporation later changed
its name to EPE, Inc., the corporate respondent in this
case. In an unfair labor practice case heard by Adminis-
trative Law Judge Claude'R. Wolfe (Case 5-CA-13517),
the Respondent was found guilty of several violations of
Section 8(a)(1) and (3) of the Act irivOlving actions that
it took in 1981 during the organizing campaign, which
led up to the aforementioned certification. On June 2,
1982, the Board affirmed Judge Wolfe's decision and, in
the absence of exceptions, adopted his recommended
Order. That Order was later enforced by a pro forma
decree of the United States Court of Appeals for the
Fourth Circuit (Case 82-1799, dated Oct. 13, 1982).
A second unfair labor practice case involving the Re-
spondent was tried before Administrative Law Judge
Leonard M. Wagman. In that case (Case 5-CA-15584),
Judge Wagman found the Respondent guilty of several
4 Until October 22, 1985, the stock in EPE, Inc was owned by four
shareholders—Bjarne E. Qvale, Peter 0. Knowles, and two corporations,
Carbel N V. a Netherlands Antilles corporation, and British Motor Car
Distributors, Ltd., a California corporation On that day, the entire stock
in the corporation was sold and transferred to Echlin, Inc, a Connecticut
corporation. Echlin is a large conglomerate that has numerous operating
divisions and corporate subsidiaries It owns about 40 manufacturing
plants throughout the United States and several foreign countries, in
which it manufactures various automotive products About 9 percent of
its products are so-called remanufactured or used parts. The General
Counsel is not seeking any relief against the Echlin Company, which pur-
chased the Respondent's stock, so no mention is made of Echlin in the
caption of this case nor in the recommended Order, notwithstanding the
fact that the name appears in the caption of the consolidated complaint.
The appositive contained in the complaint, a wholly owned subsidiary of
Echlin, Inc. is merely a descriptive phra ge. It adds nothing to the sub-
stance of this case and, from an analytical point of view, serves only to
cloud certain matters at issue. See, for example, Cab Service & Parts
Corp., 207 NLRB 217, 218-219 (1973).
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
violations of Section 8(a)(1) and (5) of the Act. Specifi-
cally, he found that the Respondent had unlawfully re-
fused -to execute a written agreement embodying the
terms and conditions of an oral understanding that it had
reached with the Union as the result of bargaining that
took place in 1982 and 1983. He also found that the Re-
spondent had unilaterally increased the insurance premi-
ums of its employees in violation of the terms and condi-
tions of the agreement that it had struck with the Union.
With minor modification, the Board upheld his decision
and adopted his recommended Order (270 NLRB 1244).
That Order was subsequently enforced pro forma by the
Fourth Circuit (Case 85-1052, dated May 16, 1985).
A third unfair labor practice case involving the Re-
spondent was heard by Administrative Law Judge
Marvin Roth (Case 5-CA-16111). In that case, Judge
Roth found the Respondent guilty of improperly invok-
ing the wage-reopener provision of the Respondent's
1983 contract with the Charging Party, dealing in bad
faith with the Charging Party in the course of negotia-
tions, and unlawfully terminating its contract with the
Union in violation of Section 8(d) of the Act. The Board
upheld Judge Roth's findings and adopted his recom-
mended Order. 273 NLRB 1375 (1985). That Order was
also enforced pro forma by the Fourth Circuit (Case 85-
1501, dated July 5, 1985).
A fourth unfair labor practice case was pending on
October 22, 1985, when Echlin purchased the Respond-
ent in this case and made it a corporate subsidiary. In
that case (Case 5-CA-16738), the Respondent, acting
under its former ownership, was the subject of an unfair
labor practice complaint arising out of 1984 negotiations
with the Charging Party, which alleged a violation of
Section 8(a)(1) and (5) of the Act. That complaint was
the subject of a proposed settlement agreement that was
under discussion between the Respondent and the Office
of the General Counsel at the same time the stock of
EPE was being offered for sale by the former owners.
During the fall of 1985, the Respondent actually posted a
Board notice at its Fredericksburg plant purporting to
remedy the violations asserted in the outstanding com-
plaint, although it was under no obligation to do so be-
cause no settlement agreement had been concluded with
the General Counsel. Because no settlement agreement
was concluded in that case, it was consolidated with the
other outstanding complaints in this proceeding and con-
stitutes part of the matter for adjudication herein.
B. Collective Bargaining in 1984 and 1985
Long before negotiations began to sell the EPE stock
to Echlin, union and company negotiators met over a
period of time to hammer out a second collective-bar-
gaining agreement, which they concluded in the spring
of 1985. These sessions began in June 1984, but were pre-
ceded by several exchanges of correspondence between
the parties. James Grzesek, the former plant manager,
Norman Jones, who was then company attorney, and
Jerry W. Perry, who was then the comptroller, repre-
sented the Company, while former International Repre-
sentative Warwick Daniels and Regional Director Bruce
Dunton represented the Union.
On March 30, 1984, Grzesek wrote Daniels and pro-
posed that a 10-cent-an-hour increase be instituted 2 days
later. This increase would cover not only a wage in-
crease, but also any increases in insurance premiums that
might have been or will be necessary at some future
date. He gave Daniels a week to respond. Daniels object-
ed orally to this proposal and followed up his objection
with a letter, dated April 12, in which he told Grzesek
that the Union was opposed to any increase that was
coupled with absorption of insurance premiums. He told
Grzesek that the normal way the Union did business was
to engage in face-to-face negotiations with a company
and requested Grzesek to be available so that this type of
collective bargaining could take place.
On the following day, Dunton sent Grzesek a conven-
tional 60-day termination letter, as well as a second letter
in which he asked for certain information relating to
health and pension benefits then in effect. Dunton, told
Grzesek that he needed the information to prepare for
upcoming negotiations with the Company. The requested
information was itemized in the course of the two-page
letter. He wanted a detailed breakdown of all bargaining
unit personnel with regard to age, sex, length of service,
date of birth, date of retirement, and similar matters. He
also requested a current actuarial valuation of the pen-
sion plan, a copy of the trustees' investment reports, a
breakdown of the pension fund allocations, a copy of the
pension plan and declaration of trust, a copy of the dis-
closure reports filed annually with the Department of
Labor concerning the plan, a copy of any life insurance
and hospitalization plans then in effect covering unit em-
ployees, a cost breakdown per employee, a copy of sick-
ness and accident benefits in effect, a copy of annual dis-
closure reports sent to the Department of Labor, and
other technical information pertaining to these plans.
Most of the information has never been supplied, al-
though a few items were furnished to the Union in Sep-
tember 1984.
On June 1, Dunton wrote Jones and asked him for a
current seniority roster. He reminded Jones that the post-
ing of such a roster was required by the terms of the
contract then in effect and asked for compliance with
those terms. On June 7, Dunton forwarded to Jones, at
the latter's request, an outline of the Union's proposals
for a new contract. He requested Jones to send him, in
advance of any meeting, a copy of any company propos-
als. On June 22, the parties met for the first time to dis-
cuss contract proposals. The discussions centered on the
items contained in Dunton's June 7 letter. Dunton asked
the company negotiators if they had any proposals, and
he particularly questioned them concerning the Compa-
ny's position regarding an administrative fee that they
had raised for checking off dues. At that time there was
no checkoff of union dues and the Company had
broached the possibility of charging an administrative fee
for processing checkoff payments during a previous dis-
cussion when the matter of checkoff was raised. The
Company had no counterproposals to present at that
time on any subject. Dunton renewed the request he had
previously made in writing for insurance information.
Grzesek said he would have the information at the next
EPE, INC. 195
bargaining session and indicated to the Union that the
Company was considering the possibility of changing in-
surance carriers.
At the next meeting on June 29, the Company present-
ed to the Union a list of written proposals. One proposal
was to lengthen the probationary period of new employ-
ees to 75 days and another was to reduce the period
during which a laid-off employee had recall rights from
9 months to 6 months. Dunton reiterated his request for
insurance information and followed it up with a July 2
letter in which he pressed the question further, asking for
the age, marital status, and total cost of insurance and
the current average earnings of bargaining unit employ-
ees, as well as additional detailed data relating to bar-
gaining unit personnel. Most of this information was
never provided.
The Union took the Company's offer, as embodied in
the June 29 memo from Jones to Dunton, to the mem-
bership for its consideration. The membership rejected
the proposal. The parties met again on July 26 in the
presence of a Federal mediator. At that time the Compa-
ny presented a second proposal but insisted on an answer
by August 1. The second proposal was taken to the
union membership and was rejected. Another meeting
took place on September 13. During the course of this
meeting Dunton renewed his earlier requests for informa-
tion. In the course of this meeting, Jones told Dunton
that the board of directors had established wage rates on
the basis of profitability, and that this determination was
based in part on rates paid at other EPE plants in Cali-
fornia. He was reminded that the Union was present to
negotiate for the Fredericksburg facility only.
By letter dated September 27, 1984, Grzesek forward-
ed to Daniels a copy of the Department of Labor Form
5500 on which it made an annual report on insurance. It
also provided information concerning the cost of insur-
ance by component (e.g., medical and dental, employee
insurance alone, and employee with one and two de-
pendents), average wage by department for March and
June 1984, and the cost of payroll service for processing
union checkoff payments. On November 7, another bar-
gaining session took place but it did not produce an
agreement. In the spring of 1985, the parties held another
and final session and concluded a collective-bargaining
agreement that was made retroactive to the preceding
summer. The agreement was for a term of 3 years and
contained a provision for annual wage reopeners.
C. The Events Surrounding the Sale of Stock in EPE
Before October 22, 1985, the Respondent operated
production facilities in Irvine and Corona, California,
and at Fredericksburg, Virginia. It also had warehouses
or storage facilities located at various locations through-
out the United States. While it produced some domestic
auto parts for the so-called aftermarket, its heavy empha-
sis was on remanufactured used auto parts for foreign ve-
hicles. It was losing money and was heavily in debt. At
the time of the stock sale, it had experienced an operat-
ing loss of nearly $3 million, and the tax consequences of
this loss were what prompted the parties to negotiate a
sale of stock rather than a sale of assets. The stock sales
agreement that was finally concluded required, among
other things, that Echlin retire a corporate debt of more
than $7 million to the Wells Fargo Bank and obtain re-
leases of personal guarantees that the former stockhold-
ers had made to Wells Fargo in order to obtain financ-
ing. Part of the urgency in concluding the transaction,
which was consummated on October 22, 1985, was that
Wells Fargo was threatening to withdraw its financial
support from the Respondent, an event that would have
forced the Company into bankruptcy.
While the rest of the EPE operations were nonunion,
the 125 or so production and maintenance employees at
Fredericksburg were covered by a 3-year agreement be-
tween the Respondent and the Charging Party that was
concluded in 1985. The agreement in question, which by
its terms expires on August 1, 1987, contains annual
wage reopeners if either party should request one.
On October 14, 1985, Jerry W. Perry, who had
become the Respondent's general operations manager at
Fredericksburg, 5 had occasion to speak by phone with
Bruce Dunton, the Union's vice president and regional
director. Dunton was at his office in Gaithersburg,
Maryland. In the course of the conversation Perry told
Dunton that a sale of EPE was imminent, but asked
Dunton not to reveal the information. He asked Dunton
to have Cecil Jones, the Union's International representa-
tive who serviced the Fredericksburg contract, to call
him. On October 17, Jones met with Perry in the latter's
office in Fredericksburg. Perry outlined the prospective
sale to Echlin in optimistic terms, telling Jones that the
plant would expand and that Echlin had plenty of money
to put into the business. One of the provisions of the
contract of sale of the stock between Echlin and the
former shareholders was that any profit-sharing plans
then in effect had to be terminated. The contract be-
tween the Union and EPE at Fredericksburg contained
such a plan. Perry told Jones on this occasion that he did
not have to worry about any changes in the relationship
of the Company and the Union. He suggested that the
Company would recognize the bargaining agreement,
noted that there was an agreement in effect, and ex-
pressed the opinion that the Company would honor it.
Perry told Jones that one change might occur, namely,
that the Company might discontinue its profit-sharing
plan, but he assured Jones that the Company would con-
tinue on at Fredericksburg with the same workers and
the same benefits. Jones asked Perry if Echlin had profit-
sharing plans at any of its other plants. Perry thought
that it did but he was not sure, adding that the profit-
sharing contributions that had been made in the past
were controlled by an insurance company. He asked
Jones if the Union would have any objection if EPE
simply paid its employees the respective amounts owed
to them under the plan. Jones' reply was that, if the em-
ployees did not object, the Union had no objections. The
meeting concluded with Perry's request to Jones to re-
frain from saying anything about the sale because a com-
5 On April 1, 1985, when the former general operations manager of the
Fredericksburg plant left, Perry was appointed to that position. When
Echlin took control, Perry was asked to stay on and he now occupies the
same position he did before the sale, but with the title of general manag-
er.
196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pany official was coming to the plant the following
Monday to announce it to the employees. A few days
later, Perry told Jones that the insurance carrier who
managed the profit-sharing plan had agreed to make
direct payments of individual shares to employees either
in December 1985, or in January 1986. I credit Jones'
testimony that he told Perry to put the request in writing
and he would take it up with the employees and inform
Perry regarding their feelings. On November 5, Perry
wrote Jones the following letter:
In reference to our telephone conversation on
Monday, November 4, 1985, the termination proce-
dure for the profit sharing will be as follows:
I. Since E.P.E., Inc. has been purchased by
Echlin, Inc., the profit sharing plan is no longer
valid.
2. Upon termination of the E.P.E. profit sharing
plan, all moneys which are now in the fund will be
paid to the employee members at 100%.
As discussed, we need a letter from the Union
authorizing the termination of the E.P.E., Inc.
profit sharing plan.
For reasons discussed infra, such a letter was never
written by the Union. Approval by the Internal Revenue
Service for the termination of the plan has still not been
obtained and no money has yet been paid out to individ-
ual Fredericksburg employees representing their shares
of the plan. However, no additional contributions to the
fund established by the plan have been made since acqui-
sition.
As indicated previously, Echlin, Inc., purchased all
outstanding shares of EPE stock on October 22. 6 The
settlement took place at EPE's headquarters in Irvine,
California. A day or two later, the new owners asked
Perry if he would stay on as plant manager and he
agreed to do so. He still occupies that post. John F.
Austin, Echlin's director of employee and labor relations,
testified that on October 24 he came to Fredericksburg
and made a brief tour of the plant. He was aware that
there was a collective-bargaining agreement in effect
and, in fact, he had been furnished with a copy of the
agreement sometime before the stock settlement date.
Perry told Austin that the major personnel problem at
the plant was a wage rate that was too low to attract
and retain qualified employees so that the plant was ex-
periencing a constant turnover. He also mentioned that
absenteeism was a recurring problem. Austin claims to
have been unaware of any previous unfair labor practice
cases at this time, although there were posted on the em-
ployee bulletin boards Board notices in the second and
third unfair labor practice cases referred to above, as
well as the notice that was proposed as a part of the set-
tlement in the outstanding complaint case, which was
consolidated into this proceeding.
Shortly thereafter, a corporate decision was made at
Echlin headquarters in Connecticut that it would recog-
nize the Union, disavow the outstanding collective-bar-
6 A total of 2,932,649 shares of stock, being 100 percent of all out-
standing shares, changed hands in this transaction
gaining agreement, and contact the Union for the pur-
pose of initiating discussions leading to a new collective-
bargaining agreement with the Union. Austin got in
touch with Jones and asked Jones to contact Dunton for
the purpose of setting up a meeting to negotiate a new
contract. The parties agreed to meet at the Holiday Inn
in Fredericksburg on the afternoon of November 7.
Before meeting with union representatives, Perry,
Austin, and the new company attorney James Allan
Smith met for lunch. At this time, Perry produced a peti-
tion, assertedly signed by bargaining unit employees, in
which they stated that they no longer wished to be rep-
resented by the Union. After consulting by phone with
Eric Myers, the new EPE president, and an Echlin cor-
porate official, the company representatives decided to
withdraw recognition from the Union. When they met
with the Union, Austin began the meeting by stating that
the meeting had been called initially for the purpose of
negotiating a new contract, but that the Company had
just been presented with evidence that the Union no
longer represented a majority of the members of the bar-
gaining unit. Accordingly, the Company had decided to
withdraw recognition from the Union until this question
could be determined by a Board election. Dunton asked
the company officials if they were relying on checkoff
authorizations to make this determination and was in-
formed that they were not. He then asked on what basis
the Company had made its determination and was told
that it was not appropriate to make such a disclosure at
that time.
The Union then filed an unfair labor practice charge,
alleging that the decertification petition had been circu-
lated by a supervisor named Shelda Day. The charge
was dismissed on the basis that Day was a rank-and-file
employee. ? On November 8, 1985, the Respondent filed
a representation petition seeking another election in the
bargaining unit (Case 5-RM-926). The petition was dis-
missed because of outstanding unfair labor practice
charges that had resulted in the issuance of a complaint,
with leave given to the Respondent to reinstitute the pe-
tition if the complaint was ultimately dismissed.
On November 8, Dunton wrote a letter to Perry in
which he asked for information concerning the sale, a
copy of the Fredericksburg seniority roster, information
concerning the pay and classification of individuals
named on that roster, and a copy of any information
given to employees relating to their status as credit union
members, He also asked if the credit union would be
continued in existence. The reply to the letter was pro-
vided by Smith, who reiterated the Company's refusals
to bargain with the Union because of its doubts concern-
ing the Union's majority status. He suggested that
Dunton contact the "predecessor employer" to obtain in-
formation concerning the termination of the profit-shar-
ing plan. On December 10, Dunton sent Perry a wage-
reopener letter and asked for a bargaining date. Smith re-
plied that Echlin had never agreed to abide by the bar-
gaining agreement so that the question of a wage reopen-
7 The petition was not placed in evidence in this case nor does the
record contain any evidence concerning the authenticity of the signatures
to be found on the petition
EPE, 197
er was essentially moot. On December 23, Jones wrote
Perry requesting a seniority list, and shortly thereafter
requested copies of the Company's weekly hiring and
termination notices that had been sent to the Union prior
to the time that recognition was withdrawn. None of this
information was supplied.
While this maneuvering was taking place between the
principal players, the Respondent was in direct commu-
nication on various occasions with rank-and-file employ-
ees at the Fredericksburg plant. Shortly after the sale of
the stock had been completed, a meeting was held for all
employees of the brakeshoe department. It was attended
by Myers, Perry, and Assistant Plant Manager Jack
Dickinson. During the meeting, a question was posed to
Myers by John Kinsella, the maintenance supervisor,
concerning the continuation of the profit-sharing plan
and whether Echlin had such a plan. Myers replied that
employees who belonged to a Union could not partici-
pate in the Echlin plan, but that those who did not
belong to a union were eligible to participate.
Eugene Beau Roberts, an employee in the brakeshoe
department, had served for several years as the Union's
shop steward. Shortly after the Company withdrew rec-
ognition from the Union, Perry told Roberts that it no
longer recognized him as steward and stated that, if any
employees had a problem, they should take it up directly
with management. Sometime in January 1986, a dispute
arose concerning whether certain employees who had
worked on a Saturday had received the full amount of
pay that was due to them. Roberts went to the personnel
department, brought up the question, and claimed that
the employees in question had not been properly paid.
He ultimately was referred to Perry. Perry told Roberts
that he would only discuss with Roberts matters that
pertained to him personally and because the grievance
did not pertain to Roberts personally, he would not dis-
cuss the matter with him. He did assure Roberts that the
employees in question would receive their pay in full and
that proper payment had been withheld because of a
clerical error in the payroll department.
In December 1985, employees were notified at a meet-
ing that wages would be increased throughout the plant
and that each employee would meet personally with
Perry to discuss the amount of his or her increase. In the
case of brakeshoe department employee Veronica
Lawson, she was told by Perry during a private meeting
that her wages were being raised immediately from $4 to
$4.50 an hour, and that she could look forward to other
increases up to $4.95. She asked Perry whether she
would be receiving the 10-cent-an-hour increase she
would normally get at the end of a 6-month period. He
replied that she would not. Other employees were simi-
larly interviewed and informed about the amounts of
their present and prospective raises.
Sometime shortly after acquisition, Roberts was pass-
ing out union literature in the parking lot on company
property before the start of hi shift. Foreman John Kin-
sella saw him and told him he would have to stand out-
side the gate and off company property if he wished to
continue distributing literature. Roberts objected, saying
that he had been passing out union literature at that spot
for 3 or 4 years. Kinsella replied simply that this was
what he had been told at a supervisors' meeting. Roberts
continued passing out the literature so Kinsella warned
him, in the presence of other employees, that if he did
not stop, the Company would have the law on him. Rob-
erts replied, "Go ahead and call them."
After the whistle blew, Roberts went to his work sta-
tion and passed Dickinson, who was standing in an aisle.
Dickinson said that he was not going to call the law on
Roberts because he knew that this was just what Roberts
wanted, adding that he knew that Roberts had been dis-
tributing literature at the spot in question for several
years. At the end of the shift, Dickinson called Roberts
into his office. He said he had talked with Perry and was
told that Roberts could continue to pass out union litera-
ture on company property so long as he did not do so
during working hours.
About March 10, 1986, the Respondent formulated and
posted a document styled "Attendance Policy." The Re-
spondent had previously maintained an informal attend-
ance policy but this was the first time that such a policy
had been reduced to writing. According to this policy,
all employee attendance records antedating March 10
would be disregarded. Beginning with that date, attend-
ance would be monitored on a daily basis over a 12-
month period and monitoring would continue thereafter
on a "rolling" basis, i.e., infractions more than 12 months
old would be continuously dropped on a monthly basis
in applying the rules which were being promulgated in
the document. An absence of more than 4 hours was de-
fined as a full day's absenteeism. Employees were given
specific instructions about whom to call and when to call
if they expected to be either late for work or absent for
the day. Certain stated exceptions to the definition of ab-
senteeism were outlined. A progressive discipline system,
both for unexcused absences and for tardiness was also
spelled out. The system provided for gradually increased
punishment, starting with verbal warnings and leading
eventually to termination. Absence coupled with a fail-
ure to call in for 3 consecutive days was defined as a
voluntary qnit.
None of these matters was discussed with any union
representative before this policy statement was published.
When Jones heard about the new policy, he wrote a
letter requesting information concerning it and phoned
Perry to complain directly. Perry informed Jones that
the Company was not going to discuss the matter with
the Union. Additional oral requests for information were
made by Jones to the Company concerning the attend-
ance policy but Perry's standard reply was "No soap."
IL ANALYSIS AND CONCLUSIONS
A. Company Anitnus
The background against which this case would nor-
mally be evaluated is one of intense and enduring antiun-
ion hostility. It resulted in three Board orders and an
equal number of court decrees, all issued in a space of 5
years, directing the Respondent to cease and desist from
engaging in a host of violations of the Act. These viola-
tions include coercive statements, a discriminatory dis-
charge, and a variety of refusals to honor its statutory
198
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
obligation to bargain collectively in good faith with the
Charging Party. The Respondent argues that it should
not be tarred with this brush because the Company is
under new ownership and the new owners are entitled to
start with a clean slate. However, the new owners car-
ried over the old plant manager, the bulk of the old fore-
men, and were in possession of the plant less than 2
Weeks when they undertook the same kind of efforts to
shake off the Union that the old ownership had been
trying unsuccessfully to get away with for a period of 5
years. If anything, the new ownership was more abrupt,
more abrasive, and more cavalier in its treatment of the
Union than the former stockholders had been. For these
and other reasons discussed, infra, their activities on and
after November 7, 1985, should be viewed from the same
perspective as if shares of stock in EPE had never
changed hands.
B. The Continuing Liabilities of Respondent EPE,
Inc., Under New Ownership
The essence of the Respondent's defense in this case is
that, by virtue of a sale of stock, which occurred on Oc-
tober 22, 1985, and certain improvements in the oper-
ation of the Fredericksburg plant that are contemplated
or that have in fact taken place since that date, the cor-
poration known as EPE, Inc., is not responsible for the
unfair, labor practices committed by its agents before Oc-
tober 22, 1985, presumably is under no obligation to
comply with Board orders or court decrees issued
against it in other cases litigated before that date, is not
obligated to honor the contract which EPE, Inc. con-
cluded with the Union in the spring of 1985, and is free
to dishonor a certification that the Board issued in 1982.
Withdrawing recognition was based on employee peti-
tion claiming that the Union no longer enjoys the sup-
port of a majority of the members of the bargaining unit,
notwithstanding the fact that evidence challenging the
majority status of the Union was presented at a time
when contract-bar rules would normally preclude a ques-
tion concerning representation from being raised. Neither
the petition nor evidence supporting its validity was pre-
sented in support of this affirmative defense.
There is no factual question that the same California
corporation, for whose Fredericksburg employees the
Charging Party was certified in 1982, continues to oper-
ate the Fredericksburg plant today and continues to
employ the production and maintenance employees who
are working there now. Nor is there any factual question
that the same corporate entity that executed a collective-
bargaining agreement with the Union in the spring of
1985 is still in existence and that it is the employer of all
production maintenance employees in the Fredericksburg
plant. 8 The principal thrust of the Respondent's argu-
8 One of the many factors relied on by the General Counsel to demon-
strate a continuity of employment is the fact that the 1485 contract con-
tained severance pay provisions No employees at Fredericksburg were
paid any severance pay. The discontinuance of an employment relation-
ship between the old EPE and the initiation of a new employment rela-
tionship With the new EPE would, at the very least, give nse to an obli-
gation to pay severance pay
ment in this case is that the liabilities and responsibilities
of that corporate entity ceased to exist once the control-
ling shares therein were acquired by another shareholder
or group of shareholders and the new shareholder set
about making and executing plans for an enlargement or
improvement of the business. This rule, if consistently
followed, would mean that everyday's transactions on
every major stock exchange and every purchase or sale
of a corporate subsidiary would carry with it the poten-
tial for total disruption of the labor relations of the busi-
ness being bought or sold. It is a rule that is at a marked
variance with most Board and court holdings, and it flies
squarely in the face of traditional corporation law as it
has developed in this country over many years because it
is irreconcilable with the fundamental rule of corporation
law that the corporation and its shareholders are separate
and distinct entities.
Long ago the U.S. Supreme Court held, in Schenk),
Distillers Corp. v. US., 326 U.S. 432, 437 (1946):
While corporate entities may be disregarded
where they are made the implement for avoiding a
clear legislative purpose, they will not be disregard-
ed where those in control have deliberately adopted
the corporate from in order to secure its advantages
and where no violence to the legislative purpose is
done by treating the corporate entity as a separate
legal person. One who has created a corporate ar-
rangement, chosen as a means of carrying out his
business purpose, does not have the choice of disre-
garding the corporate entity in order to avoid the
obligations which the statute lays upon it for the
protection of the public.
In those rare instances in which the corporate veil is
pierced, it is done for the benefit and protection of a
third party or outsider, not at the instance and behest of
the shareholders or corporate officers, as is the Respond-
ent's implied request herein. Western Boot & Shoe, 205
NLRB 999, 1005 (1973).
Of particular relevance to the case at bar is Miami
Foundry Corp. v. NLRB, 682 F.2d 587 (1982), in which,
as here, the property of a corporation was so encum-
bered that one of its principal saleable assets was a tax
loss carryover. In determining that labor relations obliga-
tions persisted despite the corporate merger of three
companies, the Sixth Circuit stated (687 F.2d 587 at 589):
The companies, however, would have us hold that
Miami still exists for tax purposes but does not exist
for purposes of the labor agreement with Miami
workers. We decline to so hold. A company seeking
the substantial benefits of a tax loss must accept the
obligations arising out of the arrangement.
This decision was cited with approval by the District of
Columbia Circuit in Spencer Foods, on which the Re-
spondent places heavy reliance. See Food & Commercial
Workers Local 152 it NLRB, 768 F.2d 1462, 1471 (1985).
In Miller Trucking Service, 176 NLRB 556 (1969), the
Board stated:
EPE, INC. 199
Although a corporate entity will sometimes be
pierced in order to avoid its use to shield one who
seeks to evade legal responsibility, it will not be
pierced to sanction its own wrongdoing. In other
contexts, the Board has consistently held that mere
change of stock ownership does not absolve a con-
tinuing corporation of responsibility under the Act.
That rule has been applied repeatedly by the Board to
stock transfer situations. Western Boot & Shoe, supra; To-
pinka's Country House, 235 NLRB 72 (1978); Hendricks-
Miller Typographic Co., 240 NLRB 1082 (1979). The dis-
tinction between a stock transfer and a successorship re-
lationship was outlined by the Board in Hendricks-Miller,
supra:
The concept of "successorship" as considered by
the United States Supreme Court in 1V.L.R.B. v.
Burns International Security Services, Inc., et aL, 406
US 272 (1972), and its progeny, contemplates the
substitution of one employer for another, where the
predecessor employer either terminates its existence
or otherwise ceases to have any relationship to the
ongoing operations of the successor employer. Once
it has been found that this "break" between prede-
cessor and successor has occurred, the Board and
the courts then look to other factors to see how
wide or narrow this disjunction is, and thus deter-
mine to what extent the obligations of the predeces-
sor devolve upon its successor.
. . . .
The stock transfer differs significantly, in its gen-
esis, from the successorship, for the stock transfer
involves no break or hiatus between two legal enti-
ties, but is, rather the continuing existence of a legal
entity, albeit under new ownership. 240 NLRB
1082, at 1083, footnote 4.
Respondent cites in support of its contention the
Board holding in Spencer Foods, 268 NLRB 1483 (1984),
in which the Board was confronted with a case involv-
ing a stock transfer or purchase, the closing of a plant,
and the eventual resumption of operations many months
later by the same corporation acting under new owner-
ship. Under those circumstances, a Board majority found
that there was no obligation on the part of the corpora-
tion, as reconstituted, to recognize an incumbent union
or to honor a contract which was in effect when the
plant closed. The Board majority distinguished Spencer
Foods from the line of cases referred to above on the
basis that Spencer Foods involved not only a stock trans-
fer but a transfer that "resembled" a sale of assets in that
there was a hiatus between the old and new operations,
the hiring of a different work force, and substantial,
operational changes after the hiatus. As noted above,
Spencer Foods was reversed and remanded by the D.C.
Circuit and the Board has yet to issue a new decision
carrying out the instructions in the remand.
Since Spencer Foods, the Board issued a decision in
Inland Container Corp., 275 NLRB 378 (1985), in which
it found an illegal refusal to bargain in a successorship
situation, In Inland the Board looked to the use of the
same plant, the same machinery, the same methods of
production, the same product, and a continuity of the
work force, plus a hiatus in operations of only 2-1/2
months, to find that a successor existed who was under
the same obligation to bargain as was its predecessor.
Assuming, without deciding, that there is still some vi-
tality left in the Spencer Foods holding, there are a host
of clear factual distinctions between this case and Spencer
Foods that place the EPE transaction in the category of a
stock transfer, discussed by the Board in Hendricks-
Miller, supra, rather than a successorship situation. First
of all, there is the abiding animus of this corporation,
carried over from old ownership to new ownership by
the retention in place of the former plant manager and
the basic cadre of supervisory personnel. This animus
colors all that took place at Fredericksburg after October
22, 1985, with the taint of antiunion gimmicky, aimed at
thwarting union representation through the means de-
scribed herein, when other and earlier unfair labor prac-
tices had failed to achieve this goal. There was no hiatus
in operations between the period of time the Fredericks-
burg plant operated for the benefit of the former stock-
holders and its continuation under new ownership. In the
2 weeks that elapsed between the time that Echlin
bought out Qvale and associates and the time EPE with-
drew recognition from the Charging Party, no changes
had taken place either in personnel or in product. 9 No
new managers had been moved in, no new help had been
hired except in the normal course of vacancy replace-
ments, no new machinery had been bought or transferred
to Fredericksburg from other Echlin plants, and the
heavy emphasis in making foreign, as distinguished from
domestic, auto parts remained intact. It was only long
after these events that the Respondent went about
making certain changes, and these changes did not bring
about a discontinuity of either employment or produc-
tion. Instead of a 95-5 mix of foreign and domestic parts,
the mix is now closer to 50-50, but all parts are made on
the same assembly lines by the same employees, general-
ly in production runs that occur one right after the
other. More to the point, the Fredericksburg plant is still
producing used auto parts for the "aftermarket." The
new owners did not forgo making auto parts and open a
restaurant. hi July and August 1986, the work force was
increased by about 35 employees as the Respondent
began to effctuate plans for a night shift, but this oc-
curred many months after the stock purchase took place
and many months after the unfair labor practices in this
case occurred. No incumbent employees were discharged
or laid off as a result of the acquisition. Some , machinery
has recently been brought in to replace or to supplement
old machinery and the Respondent has, to a limited
extent, "rearranged the furniture" at the plant, but this
also took place long after the acquisition. All of these
recent changes amount merely to an improvement in the
old operation, not a discontinuance of the old operation.
9 In an affidavit given about a month after acquisition, Perry stated
that, as of that time, no substantial changes had occurred in the nature of
the Fredericksburg operation It would be bizarre, indeed, to hold that
operational changes, which had not yet taken place, should have a retro-
active effect on the nature and purport of unfair labor practices occurring
at some earlier date.
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Employees who testified stated credibly that they are
still doing pretty much the same old thing at the same
old place. Because Echlin is a multinational corporation
with a variety of subsidiaries and product lines, it has
available to it, and is now utlizing, a much wider net-
work of sales outlets for remanufactured parts than the
former owners had available. This fact, however, is basi-
cally irrelevant, because the essential inquiry governing
the question of successorship is not whether the Re-
spondent's sales network does or does not remain the
same, but whether its operations, as they impinge on
union membership, remain essentially the same after a
transfer of ownership. Electrical Workers TUE v. NLRB,
604 F.2d 689, 694 (D.C. Cir. 1979). As the D.C. Circuit
pointed out, this inquiry is essentially "fact specific," and
under the facts of this case, it is quite clear that the same
corporation that operated the Fredericksburg plant prior
to October 22 1985, operates it now, and that the duties
and obligations of that corporation in the labor relations
field continue to exist after the transfer just as other obli-
gations of the corporation must carry over in every
other phase of its corporate existence." In light of the
considerations outlined above, I conclude that Respond-
ent EPE, Inc. is and remains the same corporate entity
which existed prior to October 22, 1985, and that its obli-
gations to the Charging Party and to its employees
remain the same as they would have been if no stock ac-
quisition had ever taken place.
C. The Refusal of the Respondent to Bargain in Good
Faith in 1984 and 1985
The Respondent made no significant defense on the
merits to the refusal-to-bargain charges in Case 5-CA-
16758. Its only shield against liability in that case is the
contention, addressed above, that it was not responsible
for unfair labor practices committed before acquisition.
That contention has already been disposed of unfavor-
ably to the Respondent. The data that the Union request-
ed of the Respondent, both in writing and orally,
throughout the spring and summer of 1984 and on onto
the fall of that year, was plainly relevant to its bargain-
ing obligation. Data referring to the composition of the
bargaining unit, details about outstanding and proposed
insurance plans, and copies of disclosure forms pertaining
to health and welfare benefits that the Respondent is ob-
ligated to file annually with the Department of Labor
were closely connected with the discussions that were
taking place at that time between the parties leading to a
" As noted previously, the paramount reason that Echlin bought the
stock of the former shareholders was to maintain the EPE corporate ex-
istence intact so that it could enjoy the tax benefits of an operating loss
carryover amounting to almost $3 milhon Had Echlin merely bought
EPE's assets and left standing a corporate shell, it would not have been
able to enjoy the enormous benefit of this tax consequence. Moreover,
within days of acquisition, EPE paid off nearly $2 million in debts that
the corporation owed to other creditors. Any court faced with the EPE
contention in this case with respect to any other aspect of EPE's corpo-
rate activities would make short shrift of the idea that a corporation can
shed its financial and contractual obligations by virtue of a sale of stock.
Part of the sale agreement was the creation of a $500,000 escrow account
that the new shareholder could use in the event that unanticipated credi-
tors appeared and made a previously unknown and undisclosed claim
against the assets of the corporation.
second collective-bargaining agreement. See Brooklyn
Union Gas Co., 220 NLRB 198 (1975), and cases cited
therein. The Respondent has yet to proffer an excuse ad-
dressed to the merits as to why it did not furnish the in-
formation which was requested. Finally, some 6 months
after the initial request, it came forth with a few, but by
no means all, of the items that the Union was seeking.
To fulfill an obligation to furnish relevant bargaining
data, the data must be furnished in a timely fashion, and
when it is not, an employer is guilty of dilatory tactics
that conflict with its duty to bargain in good faith.
Having failed to furnish relevant information pertaining
to the Union's duty to act as the bargaining representa-
tive of the Respondent's Fredericksburg production and
maintenance employees, and having produced certain in-
formation in an untimely fashion, the Respondent herein
violated Section 8(a)(1) and (5) of the Act. I so find and
conclude.
D. The Events Surrounding the Stock Transfer
At the time of the stock transfer, the Respondent was
party to a 3-year collective-bargaining agreement that it
was legally bond to honor. When, in the latter part of
October, it gave notice to the Union that it would no
longer honor the terms and conditions of this agreement,
it violated its duty to bargain in good faith and violated
Section 8(a)(1) and (5) of the Act." When the Respond-
ent withdrew recognition from the Union on November
7, it violated Section 8(a)(1) and (5) of the Act for two
reasons. Respondent was then and there a party to an ex-
isting agreement that had more than a year to run before
it would expire. Accordingly, the Respondent was not
free at that time to question the Union's standing, but
was under an obligation to carry out the terms and con-
ditions of the contract. Moreover, the posting period had
not yet expired for two Board notices that the Respond-
ent was obligated to post in order to remedy previous
unfair labor practices. It was under a duty to recognize
and bargain with the Union at least until it had complied
with decrees of the Fourth Circuit remedying previous
8(a)(5) violations, and compliance with those decrees had
not yet been completed. One of the terms and conditions
of both of those decrees was that the Respondent recog-
nize and bargain in good faith with the Union. It is quite
probable that the Respondent's action on November 7 in
" Scant attention need be given to the Respondent's subsidiary con-
tention in this regard, namely, that Jones and/or Dunton agreed to the
termination of the existing contract and evideriCed their consent by show-
ing up at a meeting on November 7 to negotiate a new agreement The
contract, in question was executed m writing with the formalities that
attend the signing of such an agreement, and was signed only after it had
been ratified by a vote of the Fredericksburg bargaining unit There is
not the slightest hint in this record that either Jones or Dunton had the
power, on behalf of their principal, to terminate the provisions of an ex-
isting collective-bargaining agreement, and there is nothing in the past re-
lationship of the parties or the course and conduct of the Charging
Party's activities from which Such a power could be inferred. Moreover,
I credit the testimony of Jones and Dunton that they did not in fact agree
to terminate the existing collective-bargaining agreement or any part of
it. Perry's letter to Jones on November 5, asking for-written consent by
the Union to terminate the profit-sharing provision .Of the contract, is sub-
stantial evidence that union representatives had not orally agreed to any
termination and that the Respondent was well aware of that fact.
EPE, INC. 201
withdrawing recognition was not only an independent
violation of the Act but was also contempt of court. Be-
cause the Respondent was obligated to abide by all of
the terms and conditions of the existing agreement, its
action in attempting to terminate the profit-sharing pro-
visions of that agreement and its failure to make pay-
ments in accordance with the terms and conditions of
that agreement, constitute further violations of Section
8(a)(1) and (5) of the Act.
The same rule applies to the institution of a new at-
tendance policy in March 1986. The Respondent made
no pretense about bargaining with the Union concerning
the terms and conditions of the attendance policy and in
fact refused to furnish the Union with a copy of the pub-
lished policy after Jones made several requests for such
data. Both actions on the part of the Respondent violate
Section 8(a)(1) and (5) of the Act.
During this same period of time, Echlin's own man-
agement, and specifically Myers, the new president of
EFE, Inc., held a series of meetings with employees at
the Fredericksburg plant to discuss acquisition and to let
the employees know what they might expect from the
new owner. During one such meeting, Myers was asked
about the existing EPE profit-sharing plan and was ques-
tioned whether Echlin had a profit-sharing plan that
could replace it. Myers told the inquirer and the other
assembled employees that Echlin had a profit-sharing
plan that was open to nonunion employees but that union
employees were ineligible to participate. This announce-
ment was a clear discrimination based on union member-
ship and an interference by the Respondent with the Sec-
tion 7 rights of its employees. By Virtue of this statement,
the Respondent violated Section 8(a)(1) of the Act.
E. Violations of the Act Following the Stock Transfer
Several other violations of the Act were committed by
the Respondent in the months immediately following ac-
quisition that flowed from the erroneous and ill-founded
premise that it was no longer obliged to recognize the
Union as the bargaining agent of its Fredericksburg em-
ployees. One of the elementary requirements of the Act
is that an employer deal directly with the bargaining
agent as the representative of its employees in regard to
wages, hours, and terms and conditions of employment.
It must avoid bypassing the union and dealing directly
with employees. In December, the Respondent held a
series of private interviews with employees to discuss
wage increases that were going to be put into effect.
Such direct dealing violates Section 8(a)(1) and (5) of the
Act. The Respondent was also under an obligation to
discuss changes in wages with the Union and to refrain
from making any changes in compensation—especially
changes in wages that were part of a collective-bargain-
ing agreement—without bargaining in good faith with
the Union. By unilaterally instituting wage increases to
members of the Fredericksburg bargaining unit in De-
cember 1985, the Respondent violated Section 8(a)(1)
and (5) of the Act. When the Respondent refused to fur-
nish Jones with a copy of the weekly hiring and termina-
tion reports concerning bargaining unit members, it com-
mitted a further violation of Section 8(a)(1) and (5) of
the Act. Moreover, when it refused to negotiate an in-
crease in wages with the Union at the same point in time
in response to the Union's wage-reopener letter, the Re-
spondent committed a further violation of Section 8(a)(1)
and (5) of the Act.
The Respondent was under a duty to recognize Rob-
erts as the shop steward and to discuss with him the
processing of grievances of all unit employees at the first
step of the grievance procedure. When an issue arose in
January 1986, concerning the proper Saturday shift pay-
ment to employees other than Roberts, the Respondent
refused to discuss the matter with Roberts and went
beyond mere neglect of its statutory duty. Perry instruct-
ed Roberts not to participate in the processing of any
further grievances concerning employees other than him-
self and told Roberts that it would refuse to discuss such
matters with him in the future. The former statement by
Perry constitutes an instruction to Roberts to refrain
from engaging in concerted, protected activities, one of
which includes assistance to fellow employees in the
processing of their grievances. Such an instruction con-
stitutes a violation of Section 8(a)(1) of the Act. Re-
spondent's failure to recognize Roberts as the appointed
shop steward for the Fredericksburg unit and its refusal
to discuss unit grievances with him is a further violation
of Secition 8(a)(1) and (5) of the Act.
Sometime after the Company withdrew recognition
from the Union, Foreman Kinsella saw Roberts passing
out union literature in the company parking lot before
the beginning of the day shift. He told him to stop and
to go outside company property if he insisted on distrib-
uting literature. When Roberts refused, Kinsella threat-
ened to call the police. A few minutes later, Assistant
Plant Manager Dickenson followed up Kinsella's instruc-
tions with one of his own. Roberts had the statutory
right to pass out union literature in nonworking areas
when he was on his own time. When Kinsella denied
him this opportunity and threatened to have him arrest-
ed, he violated Section 8(a)(1) of the Act. This event
took place in part in the presence of other employees. In
light of the Respondent's long and checkered history of
committing unfair labor practices, a posted notice with-
out an accompanying Board order and court decree is of
little value, so any reliance by the Respondent on the
Board's decision in Goodman Holding Corp., 276 NLRB
944 (1985), is misplaced.
On the foregoing findings of fact and on the entire
record considered as a whole, I make the following
CONCLUSIONS OF LAW
I. EPE, Inc. is now, and at all times material has been,
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Amalgamated Clothing and Textile Workers Union,
AFL-CIO-CLC is a labor organization within the mean-
ing of the Act.
3. All production and maintenance employees em-
ployed at the Respondent's Fredericksburg, Virginia,
plant, including parts department employees, but exclud-
ing all other employees, office clerical employees,
guards, and supervisors as defined in the Act constitute a
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unit appropriate for collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been the
exclusive collective-bargaining representative of all of
the employees in the unit found appropriate in Conclu-
sion of Law 3 for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By failing and refusing to supply the Union in a
timely fashion with the following itemized information
that it requested, the Respondent violated Section 8(a)(5)
of the Act. The information in question includes the ef-
fective date of the sale of stock in EPE, Inc. to Echlin,
Inc.; a seniority roster of all employees at the Fredricks-
burg plant, including rates of pay and job classifications,
the list speaking as of the last day that the former
owners of EPE, Inc. operated the Fredericksburg plant;
a copy of any material submitted to employees advising
them concerning their status as credit union members
and whether the credit union would continue in exist-
ence; any written communications from Echlin, Inc. to
the Fredericksburg plant dealing with the sale of stock to
Echlin, Inc. or the effects of the sale; copies of the
weekly hiring and termination notices required to be fur-
nished pursuant to article V, section A(4) of the collec-
tive-bargaining agreement between the Union and the
Respondent; a breakdown of participants in the former
health insurance plan showing name, age, sex, length of
service, current wage rate and category of coverage, and
a copy of the health plan disclosure reports filed with
the U.S. Department of Labor for 1981, 1982, and 1983;
all data and information received from insurance compa-
nies concerning a proposed new health plan, including
data showing the manner by which the insurance compa-
ny calculated the need for increased contributions; all
data relating to the negotiations between the Respondent
and the insurance company concerning a proposed new
health insurance policy; the DOL 5500 forms, including
schedule A, filed with the Department of Labor in 1981,
1982, and 1983 relating to health insurance policies cov-
ering Fredericksburg bargaining unit employees; copies
of Respondent's Virginia state OSHA inspection reports,
a copy of the asbestos tests being administered to em-
ployees, including medical exams forms utilized, test
forms utilized including pulmonary function tests, medi-
cal histories questionnaires, and employees' educational
plans; all items contained in a letter from the Union to
the Respondent dated November 2, 1984, requesting in-
formation regarding the health insurance policy covering
the Fredericksburg unit; copy of the attendance policy
dated on or about March 10, 1986, and information relat-
ing to persons who have been disciplined pursuant to
such policy; and a copy of the names and addresses and
a seniority list of employees employed in the Fredericks-
burg bargaining unit after the stock acquistion by Echlin.
6. By failing to honor the terms and conditions of an
existing collective-bargaining agreement between the
Union and the Respondent, including but not limited to
provisions requiring the furnishing of seniority lists and
bargaining unit personnel information, the reporting pay
provision, and the pension and profit-sharing provisions;
by withdrawing recognition from the Union as the exclu-
sive collective-bargaining representative of the produc-
tion and maintenance employees employed in the Freder-
icksburg unit and by withdrawing recognition of Eugene
Roberts as the shop steward for the employees in the
aforesaid bargaining unit; by dealing directly with em-
ployees and bypassing their certified collective-bargain-
ing representative; by unilaterally granting wage in-
creases and changing job classifications; by refusing to
negotiate in response to the Union's 1985 wage reopener
request; and by unilaterally imposing an attendance
policy on bargaining unit employees, the Respondent
violated Section 8(a)(5) of the Act.
7. By the acts and conduct set forth above in Conclu-
sions of Law 5 and 6; by instructing employees not to
assist other employees in the concerted, protected activi-
ty of processing grievances; by telling employees that
union employees would not be eligible for company
profit-sharing benefits but that nonunion employees
could enjoy such benefits; and by imposing an unlawful
no-distribution rule on employees and threatening em-
ployees with reprisal if they violated such rule, the Re-
spondent herein violated Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices have a close, in-
timate, and substantial effect on the free flow of com-
merce within the meaning of Section 2(6) and (7) of the
Act.
III. REMEDY
Having found that the Respondent has committed vari-
ous unfair labor practices, I will recommend that it be
required to cease and desist therefrom and to take other
affirmative actions designed to effectuate the purposes
and policies of the Act. Because the violations of the Act
found herein and in previous cases evidence an aititude
on the part of this Respondent to behave in total disre-
gard of the rights of its employees and the obligations
imposed on it by Congress, I will recommend to the
Board a so-called broad 8(a)(1) remedy designed to sup-
press any and all violations of that Section of the Act.
Hickmott Foods, 242 NLRB 1357 (1979). I will also rec-
ommend that the Respondent be required to make appro-
priate contributiona to the pension and profit-sharing
plans, as required by article XXI of its contract, and that
such contributions be the subject of interest to be com-
puted at the compliance stage of this proceeding.
Merryweather Optical Co., 240 NLRB 1213 (1979). The
same cavalier attitude on the part of this Respondent in
abiding by its legal obligations also prompts me to rec-
ommend to the Board a visitatorial clause requested by
the General Counsel to assist the Regional Office in po-
licing compliance with the provisions of the Order. I will
recommend that the Respondent be required to post the
usual notice advising its employees of their rights and of
the results in this case, and I will recommend to the
Board that future unfair labor practices, if any, that are
committed by this Respondent be the subject of an appli-
cation to the United States Court of Appeals for the
Fourth Circuit for a contempt citation.
EPE, INC. 203
On the basis of the foregoing findings of fact and con-
clusions of law, and on the entire record considered as a
whole, I make the following recommended"
ORDER
The Respondent, EPE, Inc., Fredericksburg, Virginia,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to supply the Union in a timely fashion
with requested information that is relevant to the Union's
responsibility to act as bargaining agent for the Respond-
ent's Fredericksburg, Virginia production and mainte-
nance employees.
(b) Unilaterally changing wage rates, job classifica-
tions, attendance policies or any other terms or condi-
tions of employment of Fredericksburg, Virginia produc-
tion and maintenance employees, without first notifying
the Union and bargaining with the Union concerning
such changes if requested to do so; provided that nothing
in this Order shall be construed to require the Respond-
ent to reduce any wage rates which are currently in
effect.
(c) Bypassing the Union and dealing directly with bar-
gaining unit employees concerning wages, hours, and
terms and conditions of employment, including griev-
ances.
(d) Refusing to honor the terms of the existing collec-
tive-bargaining agreement between the Union and the
Respondent covering its Fredericksburg, Virginia pro-
duction and maintenance employees.
(e) Withdrawing recognition from the Union, includ-
ing the Union's steward, as the exclusive collective-bar-
gaining representative of the Respondent's Fredericks-
burg, Virginia production and maintenance employees.
(f) Imposing on employees an unlawful no-distribution
rule and threatening employees with reprisal if they
break such a rule.
(g) Telling employees that nonunion employees are eli-
gible to enjoy company benefits that are withheld from
unionized employees.
(h) Instructing employees to refrain from assisting
other employees in processing grievances or to refrain
from engaging in any other concerted, protected activi-
ties.
(i) By any other means or in any other manner inter-
fering with, restraining, or coercing employees in the ex-
12 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ercise of rights guaranteed to them by Section 7 of the
Act.
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act.
(a) On request, bargain collectively in good faith with
the Union as the exclusive collective-bargaining repre-
sentative of all the Respondent's Fredericksburg, Virgin-
ia production and maintenance employees.
(b) Give effect to a collective-bargaining agreement
entered into by the Respondent and the Union on April
1, 1985, covering Fredericksburg, Virginia production
and maintenance employees; provided that nothing in
this Order will require the Respondent to reduce any in-
creases in wage rates which have been granted over and
above the requirements of the agreement.
(c) Make appropriate payments to the pension and
profit-sharing plans as set forth in the remedy section.
(d) Furnish the Union with the information that it re-
quested and that is set forth in Conclusion of Law 5, and
furnish the Union in a timely manner any additional in-
formation that it requests that is relevant to its duty to
act as the bargaining representative of the Fredericks-
burg, Virginia production and maintenance employees.
(e) Post at Respondent's Fredericksburg, Virginia plant
copies of the attached notice marked "Appendix."13
Copies of the notice, on forms provided by the Regional
Director for Region 5, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing within 28
days from the date of this Order, what steps the Re-
spondent has taken to comply. For the purpose of deter-
mining or securing compliance with this Order, the
Board, or any of its authorized representatives, may
obtain discovery from the Respondent or its parent cor-
poration, their respective officers, agents, successors, or
assigns, or any other person having knowledge concern-
ing any compliance matter, in the manner provided by
the Federal Rules of Civil Procedure. Such discovery
shall be conducted under the supervision of the United
States Court of Appeals enforcing this Order and may be
had on any matter reasonably related to compliance with
this Order, as enforced by the court.
13 if this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"