Lear Siegler, Inc.

National Labor Relations Board - Board Decisions

Nov 26, 1985

277 N.L.R.B. 782 (N.L.R.B. 1985)

782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Safelite, Division of Lear Siegler , Inc. and Local
-153, International Ladies Garment Workers
Union . Case 39-CA-1562
26 November 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 15 August 1984 Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed cross-excep-
tions and a supporting brief.
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 as modified and to adopt the recom-
mended Order as modified.2
The judge found the Respondent violated Sec-
tion 8(a)(1) by promising its employees increased
wages and benefits if they abandoned the Union
and by promulgating an overly broad no-solicita-
tion rule. The judge also found the Respondent
violated Section 8(a)(5) and (1) of the Act by nego-
tiating directly with its employees; refusing to bar-
gain over the decision to transfer work from Hart-
ford, Connecticut, to Enfield, Connecticut,3 and
i In adopting the judge's finding that the Union represented a majority
of the Enfield employees on 4 March, we find it unnecessary to rely on
Air Express International, 245 NLRB 478 (1979), enfd as modified and re-
manded in part 659 F 2d 610 (5th Cir 1981), enfd 670 F.2d 512 (5th Cir
1982)
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 The judge inadvertently failed to include language reflecting his
Conclusions of Law par 7(b) in his recommended Order and notice. We
correct the error
s We base this holding on the General Counsel's prima facie showing
that the Respondent's actions were motivated by union animus and the
Respondent's failure to rebut that showing Thus, unlike Otis Elevator,
269 NLRB 891 (1984), the Respondent has not demonstrated that legiti-
mate business reasons motivated its actions
Chairman Dotson disagrees with the finding that the Respondent's
claim that it established the Enfield facility for reasons of operational effi-
ciency was pretextual The Chairman agrees that there is evidence of the
Respondent's unlawful motive for failing to transfer certain employees
and he would find the violations in this regard.
However, the General Counsel has failed to demonstrate that the Re-
spondent built a large new facility and closed down two existing
branches solely to avoid bargaining with the Union Absent direct proba-
tive evidence that the transfer of work as opposed to the failure to trans-
fer employees was done for a discriminatory purpose, Chairman Dotson
would not find the failure to bargain over the Employer's business deci-
sion violative. Otis Elevator, supra
the effects on employees; refusing to abide by the
terms of its collective-bargaining agreement with
the Union; and withdrawing recognition from the
Union as the unit's collective-bargaining represent-
ative. We affirm these findings.
The judge also found, and we agree, that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by laying off, refusing to transfer, and refusing to
recall Hartford employees Manuel Alamo, Orlando
Cotto, Manuel Garcia, John Goins, Nelson Marti-
nez, and Pedro Santos (the six "active" employees).
We further agree with the judge that the Respond-
ent laid off Hartford employees John Harvey, Ray
Webber, Pedro Alicia, and Tracy Michalek (the
four "inactive" employees) for nondiscriminatory
reasons. Contrary to the judge, however, we find
that the Respondent also discriminatorily denied
the inactive Hartford employees transfer and recall
to the Enfield facility.
The Respondent laid off the four inactive Hart-
ford employees between 15 November and 21 Jan-
uary 1983, nearly a month before laying off the six
active Hartford employees. The judge found that
during this period the Respondent began hiring
new employees at its Springfield, Massachusetts fa-
cility, adding six new employees to its complement
of four driver-warehousemen by the end of No-
vember 1982. Later, while constructing the Enfield
facility, the Respondent transferred all six of the
newly hired Springfield employees to Enfield, and
they ultimately became driver-warehousemen serv-
icing the former Hartford accounts.
In Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), approved in NLRB v. Transporta-
tion Management Corp., 462 U.S. 393, 400-403
(1983), the Board adopted a causation test for cases
alleging 8(a)(3) or 8(a)(1) violations turning on em-
ployer motivation. Our initial inquiry under Wright
Line is whether the General Counsel has made a
prima facie showing that protected activity was a
motivating factor in the Respondent's decision to
refuse to transfer and recall the four inactive em-
ployees. The General Counsel has made such a
showing in this case. The Respondent's unlawful
motives for its actions are amply demonstrated by
its numerous statements that it wished to keep the
Union out of Enfield, promises of increased wages
and benefits if Hartford employees abandoned the
Union, promulgation of an overly broad no-solici-
tation rule at Enfield, laying off and refusing to
transfer and recall the six union-represented active
Hartford employees while simultaneously hiring six
new employees, bypassing the Union and directly
dealing with Hartford employees regarding possi-
ble transfer to Enfield, and deceptive and mislead-
277 NLRB No. 80
LEAR SIEGLER, INC.
ing statements to the Union designed to conceal
the Enfield facility's existence.
As the General Counsel has established a prima
facie case of unlawful motivation , the burden shifts
to the Respondent to demonstrate that it would
have refused to transfer and recall the four inactive
employees even in the absence of protected con-
duct . The judge , in concluding that the Respondent
had not carried its burden with respect to the six
active employees , found the Respondent 's refusal
to transfer and recall them on operational efficien-
cy grounds pretextual . The judge discredited the
Respondent 's witnesses and found that despite the
Respondent 's "abundant work, experienced em-
ployees to handle it, [and] a new facility built only
a few miles from where they were working and to
which they could easily be transferred ," the Re-
spondent offered no explanation why it hired six
inexperienced employees at Springfield while at the
same time laying off Hartford employees. The
judge further found the Respondent offered no rea-
sons why it only offered two transfers to Hartford
employees knowing that it was transferring all
Hartford work to Enfield , The Respondent has
likewise failed to offer any explanation for its fail-
ure to transfer and recall the four inactive employ-
ees, and we find no basis for distinguishing them
from the six active employees . Thus, we find the
Respondent has not overcome the General Coun-
sel's prima facie case and that its refusal to transfer
and recall Alicia , Harvey , Michalek , and Webber
violated Section 8(a)(3) and (1) of the Act. Accord-
ingly, we shall issue Amended Conclusions of Law,
an Amended Remedy, and at new Order and notice
to employees.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law
6(b) and (c).
"(b) by refusing to offer its 10 Hartford employ-
ees transfer to its new facility at Enfield, Connecti-
cut; and
"(c) by failing and refusing to recall its 10 Hart-
ford employees."
AMENDED REMEDY
Having found that the Respondent has' engaged
in certain unfair labor practices , we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
We shall order the Respondent to offer John
Harvey, Ray Webber, Pedro Alicia, and Tracy Mi-
chalek immediate and full reinstatement to their
former jobs or, if these jobs no longer exist , to sub-
stantially equivalent positions , without prejudice to
783
their seniority or any other rights or privileges pre-
viously enjoyed , and to make them whole for any
loss of earnings they may have suffered as a result
of the discrimination practiced against them. Back-
pay shall be computed as prescribed in F. W Wool-
worth Co., 90 NLRB 289 ( 1950), plus interest as
computed in Florida Steel Corp ., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962). We shall order the Respondent to
remove from its files any references to the unlawful
refusal to transfer and recall the above four em-
ployees, and to notify each of them that it has done
so and that the Respondent 's unlawful conduct will
not be used against them in any way.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set out in full below and
orders that the Respondent , Safelite, Division of
Lear Siegler , Inc_, Enfield, Connecticut , its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Promising employees increased wages and
improved benefits in exchange for abandoning
Local 153, International Ladies Garment Workers
Union.
(b) Promulgating any rule prohibiting discussions
of or contact with Local 153 on the Respondent's
premises without regard to time or place.
(c) Laying off, refusing to recall , or otherwise
discriminating against any employee for supporting
or maintaining membership in Local 153 or any
other union.
(d) Negotiating with respect to wages, benefits,
and other terms and conditions of employment di-
rectly with employees instead of with their collec-
tive-bargaining representative , Local 153.
(e) Refusing to recognize and bargain collective-
ly with Local 153 regarding employees in the unit
which it represents concerning the decision to
transfer work from the Hartford facility to the En-
field facility and the effects on employees.
(f) Refusing to recognize and bargain collective-
ly with Local 153 as the collective -bargaining rep-
resentative of the appropriate unit as defined in the
collective-bargaining agreement which it entered
into with Local 153 in October 1982 regarding its
facility at Enfield, Connecticut.
(g) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Make Manuel Alamo, Orlando Cotto, Manuel
Garcia, John Goins, Nelson Martinez, and Pedro
Santos whole for any loss of earnings and other
benefits and seniority which they sustained by
reason of their layoff on 4 March 1983 in the
manner set forth in the remedy section of the ad-
ministrative Law judge's decision.
(b) Offer John Harvey, Ray Webber, Pedro
Alicia, and Tracy Michalek immediate and full re-
instatement at its Enfield facility to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of
the discrimination against them, in the manner set
forth in the remedy section of this Decision and
Order.
(c) Remove from its files any reference to the
unlawful layoffs and/or refusals to transfer and
recall the above 10 employees and notify them in
writing that the removal has occurred and that the
unlawful conduct will not be used against them in
any way.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Honor and comply with all the terms and
conditions of the collective-bargaining agreement
entered into between Respondent and Local 153 on
6 October 1982 with respect to the appropriate unit
located at Respondent's facility in Enfield, Con-
necticut.
(f) On request, bargain collectively with Local
153 with regard to employees in the appropriate
unit which it represents at Enfield, Connecticut,
concerning all matters with respect to which it is
required to do so by the terms of the aforemen-
tioned collective-bargaining agreement , and specifi-
cally with respect to the decision to transfer work
from the Hartford facility to the Enfield facility
and the effect on employees.
(g) Post at its facility at Enfield, Connecticut,
copies of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the of-
ficer in charge for Subregion 39, after being signed
by the Respondent's authorized representative,
4 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."
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 Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(h) Notify the officer in charge in writing within
20 days from the date of this Order what steps the
Respondent has taken to comply.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT promise you increased wages and
improved benefits in exchange for abandoning
Local 153, International Ladies Garment Workers
Union.
WE WILL NOT promulgate any rule prohibiting
discussions of our contract with Local 153 on our
premises without regard to time or place.
WE WILL NOT lay off, refuse to recall, or other-
wise discriminate against you for supporting or
maintaining membership in Local 53 or any other
union.
WE WILL NOT negotiate with respect to wages,
benefits, and other terms and conditions of employ-
ment directly with you instead of with your collec-
tive-bargaining representative.
WE WILL NOT refuse to bargain with Local 153
as the exclusive bargaining representative of the
employees in the unit which it represents concern-
ing the decision to transfer work from the Hartford
facility to the Enfield facility and the effects on
employees.
WE WILL NOT refuse to bargain collectively with
Local 153 as the collective-bargaining representa-
tive in the appropriate unit as defined in the collec-
tive-bargaining agreement which we entered into
LEAR SIEGLER, INC.
with Local 153 in October 1982 regarding our fa-
cility at Enfield , Connecticut.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Pedro Alicia, John Harvey,
Tracy Michalek , and Ray Webber immediate and
full reinstatement at our , Enfield facility to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
seniority or any other rights or privileges previous-
ly enjoyed and WE WILL make them whole for any
loss of earnings and other benefits resulting from
our refusal to recall them , less any net interim
earnings , plus interest.
WE WILL make Manuel Alamo , Orlando Cotto,
Manuel Garcia , John Goins , Nelson Martinez, and
Pedro Santos whole for any loss of earnings and
other benefits resulting from their layoff on 4
March 1983, less any net interim earnings, plus in-
terest.
WE WILL notify each of the above-named em-
ployees that we have removed from our files any
reference to his unlawful layoff and/or refusal to
transfer and recall him and that the unlawful con-
duct will not be used against him in any way.
WE WILL honor the terms and conditions of our
collective-bargaining agreement with the Union ef-
fective- 6 October 1982.
WE WILL, on request , bargain with the Union as
the exclusive representative of the employees in the
following appropriate unit concerning all matters
with respect to which we are required to do so by
the terms of the collective-bargaining agreement,
and specifically with respect to the decision to
transfer work from the Hartford facility to the En-
field facility and the effects on employees:
All non-supervisory production and mainte-
nance employees at the Enfield , Connecticut
facility.
SAFELITE, DIVISION OF LEAR
SIEGLER, INC.
Jonathan B. Kreisberg, Esq., for the General Counsel.
William G. Haynes, Esq. (Edison , Lewis, Porter & Haynes
Esqs.), of Topeka, Kansas , for the Respondent.
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE , Administrative Law Judge.
This case was tried before me on September 19, 20, and
21 and December 12 and 13 , 1983, at Hartford , Connecti-
cut. The complaint , based on a charge and an amended
charge filed on March 7 and April 28 , 1983, respectively,
785
was issued on May 31, 1983 .1 As amended at the-hearing
(and subsequently in the General Counsel 's posthearing
memorandum by withdrawal of the allegation , of viola-
tion of Section 8(d) of the National Labor Relations Act,
the complaint alleges violations of Section 8(a)(1), (3),
and (5) of the Act by the Respondent , Safelite, Division
of Lear Siegler, Inc.
It is contended that Section 8(a)(1) of the Act was vio-
lated when the Respondent , by its District Manager
Joseph F . Lovett Jr., solicited employees of the Re-
spondent to abandon Local 153, International Ladies
Garment Workers Union , informed employees that
unionization was futile , promised increased wages and
benefits if they abandoned the Union , and established a
rule prohibiting all, discussions of unions on the Respond-
ent's premises.
(At the hearing , I dismissed par. 8 (a) of the amended
complaint; in his posthearing brief, the Genera l Counsel
moved for its reinstatement . I adhere to my ruling. The
allegation contained in par . 8(a), that Lovett solicited the
Respondent 's employees to abandon the Union , is in es-
sence duplicative of the allegations of pars. 8(b) and'(c),
which allege that he informed the employees of the futil-
ity of unionization and promised them increased wages
and benefits if they worked at the nonunion Enfield facil-
ity. In any event, as will appear below, the employees
testified that Lovett made statements, as alleged in pars.
8(b) and (c), but never expressly urged them to abandon
the Union, as alleged in par. 8(c).)
Section 8(a)(1) and (3) of the Act is claimed to have
been violated (1) by the Respondent 's refusal , since Feb-
ruary 1 , 1983, to recall four employees laid off during
November and December 1982 and January 1983, alleg-
edly in order to enable Respondent to avoid the collec-
tive-bargaining agreement then in effect , and (2) by the
Respondent 's discharge of six employees on- March 4,
1983 , when it closed the Hartford facility, allegedly be-
cause they had exercised their rights under Section 7 of
the Act.
The allegation of violation of Section 8(a)(1) and (5) of
the Act is based on allegations that the Respondent by-
passed the Union and negotiated directly with employees
respecting terms and conditions of employment ; trans-
ferred operations from Hartford , Connecticut, to Enfield,
Connecticut ; refused to abide by the collective -bargain-
ing agreement with respect to employees at Enfield;
withdrew recognition of the Union as the bargaining rep-
resentative of the unit; and refused to bargain with the
Union concerning the decision to transfer and the effects
of transfer of work from the Hartford facility to the En-
field facility. (The allegations of violation of Sec. 8(d) of
the Act were withdrawn by the General Counsel in his
posthearing brief.)
The Respondent 's answer denies the material factual
allegations of the complaint and denies the commission
of any statutory violation.
The parties were afforded full opportunity to be heard;
to call, to examine and cross-examine witnesses; and to
introduce relevant evidence . Posthearing briefs have
' All dates are in 1983 except when specifically stated otherwise.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been filed on behalf of the General Counsel and the Re-
spondent.
On the entire record , including my observation of the
demeanor of the witnesses , and after consideration of the
briefs filed on behalf of the General Counsel and the Re-
spondent , I make the following -
FINDINGS OF FACT
1. JURISDICTION
There is no issue concerning jurisdiction . The amend-
ed complaint alleges, the Respondent 's answer admits,
and I accordingly find that the Respondent is engaged in
the distribution of glass products with an office and
place of business in Enfield, Connecticut, having previ-
ously had an office in Hartford, Connecticut, and that in
the 12-month period ending February 28, 1983, it
shipped products valued in excess of $50,000 from Hart-
ford to points outside of Connecticut and received from
points outside the State products valued in excess of
$50,000 , and is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. The
Respondent also admitted, and I find, that the Union is
and at all pertinent times was a labor organization within
the meaning of Section 2(5) of the Act. -
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Statement of the Facts
On the basis of the credible testimony and other evi-
dence in the record, the admissions contained in the
pleadings and stipulations of counsel , I find the following
to be the facts of this case.
1. Consolidation of facilities at Enfield
The Respondent is a division of Lear Siegler, Inc., a
California-based corporation. Solomon Korff Industries is
another subsidiary. There are executive offices in Cam-
bridge, Massachusetts. The Respondent itself is a Dela-
ware corporation which was engaged in the distribution
of glass products from places of business located in Hart-
ford, Connecticut; Springfield and Cambridge, Massa-
chusetts; Schenectady, New York; and Cranston, Rhode
Island. All these locations distributed the same products:
replacement automotive glass, automobile sunroofs,
window glass, insulated glass, safety glass mirrors, wired
glass, patterned glass, construction panels , sheet plastic,
and miscellaneous supplies such as sealants and glass cut-
ters. The operations of these branches were subject to
highly centralized supervision, with numerous details of
local concern, such as disciplinary decisions, being decid-
ed personally by Robert Twist, vice president and gener-
al manager, and by Lovett, the manager of branch oper-
ations for the New England division, in their offices in
Cambridge. Lovett was directly involved with collective
bargaining with the Union, as was Robert Courtney, vice
president for labor relations. Lovett participated in deci-
sions which were made to close the Hartford and
Springfield facilities and to open a new one in Enfield,
Connecticut. The final decision to close the facility at
Hartford and a subsequent decision to offer transfers to
Enfield to the Hartford employees was made by the
president of the Safelite, Division of Lear Siegler, Inc.
The evidence suggests that the decision to open Enfield
may have been made in California.
Lovett's normal functions included oversight of all the
northeastern division locations , including their general
operations, their vehicles, inventories, office procedures,
and customer problems. The branch managers reported
directly to him. He in turn reported to Twist. Lovett and
Twist were both directly concerned in the processing of
union grievances and Lovett attended meetings which
were held with the Union on February 22 and March 15
and with the employees at Enfield on March 30 as here-
inafter described . When an employee at Hartford named
John Goins balked at transferring to Enfield, unless all
the employees were offered transfers , the branch manag-
er put him on the telephone directly with Twist in Cam-
bridge. Employees and responsibility for deliveries to
customers have been switched around among the New
England branches from time to time.
The collective-bargaining agreement in effect during
the pertinent times was entered into between Safelite Di-
vision and the Union on October 6, 1982, and covered a
bargaining unit consisting of "all non-supervisory pro-
duction and maintenance employees at the Employer's 20
Chestnut Street, Hartford, Connecticut facility." Deliv-
eries were made from that facility to customers in Con-
necticut and New York, including New York City and
Long Island. As of February 1, 1983, six driver-warehou-
semen were working there, and will be referred to as the
"active" employees. These employees and their dates of
hire were Manuel Alamo (January 23, 1978), Manuel
Garcia (November 23, 1979), Pedro Santos (February 26,
1980), Orlando Cotto (June 27, 1978), Nelson Martinez
(February 27, 1979), and John Goins (October 13, 1963).
An additional employee, Cheryl McCue, had started
with the Respondent on May 17, 1982.
There were four other driver-warehousemen who
were on layoff status. These employees, and their hire
and layoff dates, were John Harvey (July 7 to November
15, 1982), Ray Webber (June 28 to December 27, 1982),
Pedro Alicia (February 4, 1982, to January 6, 1983), and
Tracy Michalek (October 20, 1981, to January 21, 1983).
During this period of progressive payroll reduction at
Hartford, the Springfield facility, which made deliveries
to customers in Massachusetts, Vermont, and New
Hampshire was putting on additional employees, adding
six new men to its regular complement of four driver-
warehousemen by the end of November 1982. The Re-
spondent's "Weekly Payroll Retail Work Sheet" for the
week of operation ending on January 28, 1983, showed
12 employees on the payroll (not including management)
and also indicated that every one of them worked over-
time that week for a total of 164 overtime hours.
Plans for the opening of a new facility at Enfield, Con-
necticut, located approximately 15 minutes from Hart-
ford by automobile, had been completed at least as early
as July 1982. An agreement for construction and leasing
of a building there was entered into on September 8,
1982. After it was built, all six of the newly hired em-
ployees from the Springfield facility were employed in
the construction of racks in the premises and otherwise
LEAR SIEGLER, INC.
readying the facility for operation, along with employees
from other New England branches, except that none of
the Hartford personnel were so employed. The six em-
ployees from Springfield were thereafter employed as
driver-warehousemen at Enfield.
The Respondent commenced operation at the Enfield
facility on February 1, servicing all the accounts former-
ly handled by the Springfield facility and utilizing em-
ployees transferred from Springfield, including the six
newly hired employees, and utilizing all of the trucks
and equipment which had been in use at the facility. In
addition, during its first month of operation, the Enfield
facility serviced a large number of the Hartford custom-
ers and, in March, after Hartford was shut down, it serv-
iced all of the customers in the area which had been
serviced by that facility. The General Counsel asserted
that during the first month, Enfield serviced 80 percent
of the customers serviced by Hartford in December
1982. The Respondent concedes only 50 percent. A list-
ing of monthly sales by shipping point regularly main-
tained by the Respondent revealed that in the month
ending ]December 31, 1982, shipments were made from
the Hartford facility to 105 customers and that in the
first month of the Enfield operation, during which time
Hartford was still functioning, Enfield made deliveries to
68, or 64.7 percent of the customers whom Hartford had
serviced in December.
Hartford was closed on March 4 and Enfield assumed
responsibility for all of its customers thereafter.
2. Negotiations regarding effects of Hartford closing
The month of February was consumed by a dialogue
between the Respondent and the Union.
The discussions were initiated by a letter from the Re-
sprri'ident's counsel to the union business agent, dated
January 31, advising him that "the management of Safe-
lite is considering closing the Safelite warehouse located
at 21) Chestnut Street, Hartford, Connecticut" and invit-
ing him to meet to discuss the effects of the closing "on
unit employees represented by your union before a final
decision is made." On February 8, the Union requested
that the discussion embrace the decision to close as well
as its effect on the employees. The Respondent indicated
its availability to discuss the effect only. At a meeting at
the union office in Boston on February 22, the Respond-
ent made it clear that a decision to close the Hartford
warehouse had been reached, and that that question was
not open for discussion. No disclosure was made respect-
ing the existence of the new facility at Enfield. The Re-
spondent justified the closing of the Hartford facility on
the basis of its lack' of profitability resulting from a large
loss in sales, which inevitably boosted delivery costs and
made servicing of customers from another facility more
profitable for the Respondent. A number of inquiries by
counsel for the Union respecting the Respondent' s plans
and the possibilities for keeping the Hartford personnel
working were answered in a misleading manner, as is set
forth below in the discussion ofthe Respondent's intent
to circumvent the Union.
In the course of discussion regarding the possible in-
spection of records of the Respondent at Wichita,
Kansas, the Respondent's counsel, in assenting to such
787
examination , foreclosed any possibility that the Union
might be able to come up with any suggestion which
would obviate the need to close the' :Hartford facility.
The meeting concluded with certain understandings:
that the Union would decide if it wanted to send audi-
tors to Wichita, Kansas, to review records; that Hartford
would be closed in the near future; and that union and
management representatives would 'visit Hartford to talk
to the employees about the closing. Tentative dates for
further meetings were agreed upon, dependent upon
whether the Union decided to examine the records in
Wichita. Another meeting was held on March 15 and is
described below.
3. Layoffs
On February 21, the Respondent posted a notice in the
Hartford facility. Originally in hand-lettered form, it was
subsequently superseded by a type-written notice con-
taining the identical text. The notice read as follows:
Notice: To All Hartford Employees:
As you know, this warehouse will be closed in
the near future.
If you are interested in being transferred to an-
other Safelite location, please notify your Manager,
Agnes Rawnsley, in writing, by March 4, 1983.
The original hand-lettered notice on the letterhead of
"Solomon Korff Industries, a Lear Siegler Company,"
whose address was set forth as Cambridge, Massachu-
setts. A legend at the bottom listed locations: Cranston,
R.I.; Elmhurst (Chicago), Ill.; Hartford, Conn.; Schenec-
tady, N.Y.; and Springfield, Mass. The typed notice was
on the letterhead of "Safelite, a Lear Siegler Division" at
the same address, with a legend at the bottom listing lo-
cations at Cambridge and Springfield, Mass.; Cranston,
R.I.; Hartford, Conn.; and Schenectady, N.Y.
On February 25, before another meeting could be
held, the Respondent advised the Union by telegram that
it had fixed March 4 as the date for closing the Hartford
warehouse and suggested a meeting on that date.
About that time, Trykowski, the Union's business
agent, visited the Hartford facility and was alerted to the
existence of a facility in Enfield by the employees. Some-
one working at Penn Glass, an affiliated company, told
him where it was and he located it in the industrial area
of Enfield. He found Solomon Korff trucks parked at the
site. In the light of the existence of this new facility so
close to the one being closed, Trykowski, on March 2,
sent a telegram repeating the request for records and as-
serting that they were needed in order to negotiate the
decision and its effects. The Respondent replied that
records were available, the Respondent was willing to
negotiate with respect to the effects, and was available
on March 15, and that employees had been given until
March 4 to request transfer to other locations.
Trykowski visited the employees at Hartford on
March 2, reported his findings at Enfield and learned
about the posted notice. He himself prepared the transfer
requests, which he had them execute the following day.
They read as follows:
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I request that I.be transferred with my work to
the Enfield , Connecticut facility and make this re-
quest without prejudice to any of my legal rights or
Local 153's , legal rights.
Equally as important (in light of what followed), Try-
kowski cautioned the employees not to sign anything
until the .Union had had a chance to see it . Trykowski
submitted the transfer requests to Al Curtis , the foreman
(Rawnsley was not there at the time).
Later in , the afternoon of March 3 , without notice to
the Union, Rawnsley called the employees into her
office , in order of their seniority , and advised them that
there were two openings in Enfield . She offered them
the jobs that were there . Each was asked to sign a state-
ment to the effect that he had been offered a transfer to
Enfield . All six employees turned the offer down and re-
fused to sign the statements , giving different reasons: re-
quest was already on file and the Union said not to sign
papers (Gains); it was unfair that the offer was not being
made to all the employees (Garcia); all must go, cannot
sign more papers without union consultation , and Hart-
ford employees had greater seniority than the employees
then working at Enfield , justifying transfer of all Hart-
ford personnel (Martinez); cannot sign anything without
the Union , and everyone must be transferred (Alamo).
Cotto and Santos gave similar reasons.
The sessions with these six employees were marked by
definite expressions of union animus and illegal promises
of benefits . Making it clear that the Enfield facility was
not a union shop , Rawnsley made express promises of in-
creased wages to Garcia and Alamo, which are reviewed
in detail below.
The next day , March 4, they were all laid off and op-
eratidns at Hartford ceased . The Union filed an unfair
labor practice charge on March 7 , which prompted the
Respondent to refuse inspection of records and the
Union abandoned its request.
On March 15, another meeting was held in the Union's
office in Boston. Taking the position that the Enfield op-
eration was the Hartford operation removed a distance
of a few miles , the Union demanded reinstatement of all
laid-off Hartford employees (including those laid off in
November, December , and January ). The Respondent
took the position that ' the Union did not represent En-
field employees (in the absence of signed authorization
cards) and that the recently laid -off employees at Hart-
ford had declined transfers . Some indication that the Re-
spondent might be willing to settle the difficulties by
taking back the six recently laid-off employees foundered
upon the Union's demand that all 10 laid-off employees
be recalled.
In an exchange of mailgrams at the end of March, the
Union again requested that the Respondent "immediately
employ at the Enfield location all employees represented
by Local 153 , ILGWU at the Hartford location includ-
ing employees actively employed on March 3, 1983 and
employees on layoff status." The Respondent replied that
Since our last meeting we have determined that ap-
proximately 50 percent of the Hartford warehouse
work has been transferred to Enfield , Connecticut.
However, in a good faith effort to reach agreement
and to provide continued employment for the Safe-
lite employees , Safelife is offering each of the six
employees working at the time of closing a transfer
to Enfield, Connecticut . . . with at least the same
wage rates , equivalent benefits and a continuation of
their seniority dates.
The Union answered that it was unable to accept the
proposal because of its failure to include the employees
on layoff status and concluded:
You should be advised that Mr . Trykowski will
deal with Mr. Lovett as to matters involving the
active and laid off employees , that the Local 153
collective bargaining agreement applies to Enfield,
and Local 153 is the collective bargaining represent-
ative at the Enfield location.
The response to this was that
Safelite Div. of Lear Siegler has a good faith doubt
that a majority of the employees in an appropriate
unit employed at its Enfield , Connecticut ware-
house desire to be represented by Local 153 for
purposes of collective bargaining . Safelite is there-
fore denying Local 153 's request for recognition as
the exclusive bargaining representative of employ-
ees employed at its warehouse in Enfield, Ct.
These mailgrams , dated respectively March 23, 25, 28,
and 29 were entirely between counsel for the Union and
counsel for the Respondent.
Acting in accordance with its expressed beliefs as set
forth in its last mailgram to the union counsel, the Re-
spondent , on March 29 , sent a mailgram to each of the
six "active" Hartford employees directing them to report
to the Enfield warehouse on March 30 for employment
as a warehouse worker -driver . Five of them did so (Or-
lando Cotto , Manuel Garcia , Manuel Alamo, Pedro
Santos , and Nelson Martinez). John Gains did not
appear . However, they were not put to work . They were
advised that they were required to sign medical benefits
cards before they could begin work ; having been advised
by Trykowski not to sign anything until he had a chance
to see and approve it, they wanted to contact the Union
before signing : They therefore left to consult with the
Union.
The testimony is in conflict about what happened
when they refused to sign the cards . They assert Lovett
asked them if they were refusing to go to work and they
explained that they were not refusing , but wanted to
consult with the Union , whereupon Lovett said that if
they wanted to talk to the Union they had to so so off
the company premises , and escorted them to the door.
Lovett testified that when he asked them if they were re-
fusing to work , they replied affirmatively . I credit the
employees ' version , making the date of March 30 impor-
tant in the chronology of these events, not for the failure
of the employees to go back to work , but for the addi-
tional statements made by Lovett on that occasion and
on April 7, when they returned again and finally re-
sumed work.
LEAR SIEGLER, INC.
The final result was that five of the six Hartford
"active" employees who were laid off on March 4 went
back to work on April 7.
4. Statements made to employees
Statements made by Agnes Rawnsley , the branch man-
ager at Hartford , to the six driver-warehousemen em-
ployed there as of March 3, and statements attributed to
Lovett on March 30 and April 7, when some of those
employees responded to mailgrams directing them to
appear for work at the new Enfield facility , are claimed
to be violative of the Act.
The remarks which Rawnsley is quoted as having
made are identical to those attributed to Lovett on dif-
ferent occasions . According to Garcia, Rawnsley told
him:
We were going to be making more, benefits were
going to be better . . . instead of making $5.80 we
was going to make . . . $7.00.
Alamo testified that she said:
We're going to get paid seven dollars an hour but
with no union . . . . Well, we got two jobs here in
Enfield and then we offer it to the two oldest in
this place , John and then I call you now, and they
going to make seven dollars an hour there. They
don't want no union in that place.
Lovett is quoted to the effect "that he didn 't want no
union there . That was a branch without a union and if
we want anything to be with the union we got to be
doing-talk to the union out of Safelite property." At
Enfield they got "more facilities." `By the time we
talked to him about the union he say he can do nothing
because he don 't want no union and that's a non-union
place up there . So, we came back to Hartford and called
the union ." They wanted to call the union to see if they
should sign the health benefit cards that Lovett wanted
them to sign before they could begin work , but he said
"that if we want to talk to the union we got to go out of
the Safelite property."
When they reported to Enfield, "Joe Lovett was there
and Roger and Terry and they say welcome to Safelite
Company, we offer better benefits, seven dollars an hour
with no union. No Union. They don' t want no union in
that place." "He say we going to have better benefits in
this new warehouse and gonna get paid a little bit more,
seven dollars an hour and but no union . We don't want
no union in here."
This testimony has the ring of truth in it and its veraci-
ty was supported by the witnesses ' demeanor.
The employees ' testimony is partially corroborated by
Lovett's admissions that he told them the facility was
nonunion and "emphasized " that the pay rate and bene-
fits had changed , but work rules would remain un-
changed. He denied having told them that he did not
want a union at Enfield.
Nevertheless, notes made in preparation for his meet-
ing with the employees , some of which were prepared
by Twist , show the mental set of the management group
789
and indicate that the employees' version of the confer-
ences is accurate.
A memorandum in the handwriting of Robert Twist,
entitled, "Points to Discuss with Hartford Transferees"
lists the following points (italics in the original):
2. Any ILGWU will be kept off the property.
3. Describe benefits . . . 5. New rates of pay in
effect . . . . 6. Discuss this is a non-union facility.
There is no contract with any union . There are the
same work rules as you had in Hartford. Any ques-
tions on rules. .. 8. Introduce management : Terry,
Roger, Al [?]
A document headed, "Speech 2" notes the following
points:
Welcome
Better pay and working conditions
We want to keep the facility non -union.
-We think we can work together without outsiders
involved.
-No need for you to pay union dues and fees and
fines.
-Not saying we expect one, but in case of a
strike-
-We are always willing to discuss any problems or
concerns.
Attached pages amplified the information to be given to
the transferees regarding automatic enrollment in Safe-
lite's "benefit package , which we are happy to announce
includes a dental program;" a wage increase to $7 per
hour; the facility is nonunion , there being no [underlined
twice] contract with an union.
All the foregoing appears in yet another memorandum,
prepared by Twist and Lovett, summarizing what they
intended to discuss with the Enfield employees . Both at-
tended that meeting . In addition to notes concerning
mention of increased pay, benefits, and continuance of
tranferees ' files and personnel data, the -memorandum
contains the following entry:
Recommend this facility remain non-union facility.
We think we can work together without outsiders
involved. There are no dues or union fees.
A memorandum signed by Joseph H . Lovett Jr. and
Teresa Barbato constitutes minutes of a meeting held
with employees on Wednesday , March 30, 19133, at 8
a.m, at the Enfield warehouse . It was prepared 10 to 20
minutes after the meeting concluded. It lists 11 points of
discussion , including all of the matters mentioned in the
preliminary memoranda-the welcome , work rules, per-
sonnel records , nonunion facility, hours of operation, and
a few other matters. Two points in the memorandum set
forth versions of the facts which are at variance with the
testimony of the employees . With respect to the discus-
sion of the union , only the following is stated:
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Lovett stated that Enfield is a non-union facility.
Garcia asked if the union was aware of what was
taking place in regard to their working in Enfield.
Lovett responded that the union had responded to
the company's telegram which is why they were
here in Enfield.
Of course, if that was the response actually made, it was
a complete non sequitur and utterly misleading. I credit
the employees' version.
The memorandum also contains a variant version of
how the meeting ended:
7. Lovett asked each man to fill out the benefit
cards and explained how to do so. 8. Lovett and
Barbato excused themselves and left the room. 9.
Lovett returned to find the group standing and
ready to leave the room.
Lovett asked if the cards were completed and if
they were ready to start work. 9. [Cont'd] Garcia
responded that they would think it over and contact
the union. (ILGWU) 10. Lovett asked the group if
they were refusing to start working. Garcia said yes
and the rest of the group nodded yes. 11. Lovett
said fine and escorted them to the door saying
goodby.
Garcia's testimony presents a much more credible and
realistic version of the event:
Q. Did you go to the Enfield after you received
that telegram?
A. Yes.
Q. To go to work?
A. Yeah, we supposed to report to work like the
telegram say, you know.
Q. March 30?
A. On March 30, but we don't start work that
day because we supposed to talk-we like to talk to
the union before to start work. And when we went
to Enfield Joe Lovett say it's not a union place,
union branch. So, we started thinking about it and
we told Joe that we like to go to work, but we
have to talk to the union before to start work.
He say if you want to talk to the union we have
to go out of the Safelite property, you know, out of
the property of Safelite. We went to Hartford and
called the union and when we talked to the union
he say-Frank told us don't sign anything, any
papers and that's what we did.
B. Analysis of Respondent's Actions
1. Lack of justification for layoffs in March 1983
and for failure to recall employees laid off earlier
The posthearing brief submitted by Respondent's
counsel argues that the "decision to close the Hartford
facility and transfer bargaining unit work to Enfield . . .
was based upon considerations unrelated to the collective
bargaining process. Thus, the decision to transfer Hart-
ford accounts to Enfield is premised on administrative ef-
ficiency." It is asserted that 50 percent of the Hartford
accounts were transferred to other New England divi-
sion facilities "in an effort to realign deliveries for cost
efficiency." On March 4, the balance went to Enfield.
"The decision to transfer this work was purely entrepre-
neurial and based solely on considerations unrelated to
labor costs or other factors that might be amenable to
the collective bargaining process."
Unquestionably, the Enfield operation, housed in a
building constructed to suit the specifications of the Re-
spondent and two or three times larger than the Spring-
field facility, was a more efficient operation than the sep-
arate Hartford and Springfield facilities. The General
Counsel, however, had made out a prima facie case that
the Hartford accounts were transferred to circumvent
the Union, with whom the Respondent had entered into
a collective-bargaining agreement a month after signing
an agreement for the construction of a new facility at
Enfield, which began operating secretly only 4 months
after the collective-bargaining agreement was signed.
The outstanding feature of the numerous communica-
tions back and forth between counsel for the Respondent
and counsel for the Union in February 1983 and of the
two meetings which they had during that month, was
that the existence of the Enfield facility was deliberately
and duplicitously concealed, under circumstances in
which a duty to disclose clearly existed.
The true nature of Respondent's motivation is appar-
ent from the fact that 64 percent of the Hartford business
wound up in Enfield while the two operated simulta-
neously (not 50 percent as contended by Respondent)
and from the fact that there was enough work in Enfield
to justify retention of all of the active Hartford employ-
ees when Respondent was put under sufficient pressure
by the Union to cause it to reconsider its layoff. Re-
spondent's first recourse had been to hire new personnel
altogether, despite the patent seniority of employees
working in Hartford. The problem, obviously, was their
union membership and the collective -bargaining agree-
ment so recently entered into. When the Respondent first
offered transfer to the active Hartford employees, it
made the prospect as unattractive as possible by demand-
ing their signatures on transfer requests which made no
mention of any specific facility, and by making the
demand in a notice posted on stationery which men-
tioned only remote locations. The employees were thus
confronted with the apparent necessity of accepting
transfers to locations considerably distant from Hartford
if they wanted to keep their jobs with Respondent,
which was already operating a comparable facility locat-
ed only a few miles away. When transfers to the Enfield
facility were subsequently discussed with the active
Hartford employees, the existence of only two jobs there
was disclosed; yet we know from subsequent history of
this affair that the work volume was sufficient to keep all
six of them busy, because Respondent offered to recall
them if it would settle the controversy with the Union,
and because their work was being done by six nonunion
people brought in from Enfield. Finally, notwithstanding
that there was room for the Hartford drivers who were
on layoff status, because jobs existed at Enfield which
were being performed by nonunion people without their
seniority and because not all of the active Hartford driv-
LEAR SIEGLER, INC. 791
ers transferred to Enfield, Respondent never recalled
them. This was a plain case of a runaway shop. The
entire Hartford facility was being operated from Enfield,
only a few miles down the road, which had been opened
in secrecy with nonunion personnel. The active Hartford
employees were cautioned repeatedly that the new oper-
ation was nonunion in statements which were made to
them by the Hartford branch manager , Rawnsley, and by
the manager of branch operations for the New England
division, Lovett.
The General Counsel thus established, prima facie, that
the active Hartford employees-Goins, Cotto, Garcia,
Alamo, Santos, and Martinez-were laid off and refused
the opportunity to transfer to Enfield because of their
union affiliation. I find no basis in the evidence, either
with reference to specific incidents or on the record as a
whole, for reaching the same conclusion with respect to
the four employees on layoff status. There appears to
have been no pattern to the timing of their layoffs. No
statements were made to any of them at any time which
would have indicated that their layoffs were prompted
by their union affiliation, or which would have tended to
indicate union animus on the part of the Respondent as a
motivating factor. Though Enfield was already under
construction at the time they were laid off, the time
factor still appears to be to be too remote and, as noted,
it is a factor which in their case is not linked to any
other significant circumstances. They were laid off in
order of inverse seniority in circumstances which appear
unremarkable. Although it can be argued that the layoffs
in January may have been in contemplation of the begin-
ning of operations from Enfield in February, there is no
hard evidence to support such an argument and it is basi-
cally speculative. The two January layoffs were 2 weeks
apart and more than a month before the layoffs of the six
active Hartford employees.
Consequently, it is only with respect to those six em-
ployees that a burden was placed on the Respondent to
come forward with evidence that they would in any
event have been laid off on a permissible basis. NLRB v.
Wright Line, 251 NLRB 1083 (1980), affd. 662 F. 2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
The Respondent's contention was that the Hartford fa-
cility was closed down for reasons of operational effi-
ciency. I find that reason, as a basis for layoff and refusal
to recall the six active employees, to be pretextual. I do
not credit the Respondent's witnesses and I do not find
support for the Respondent's contentions in the records
which are in evidence. The evidence adduced by the
General Counsel, on the other hand, established not only
a prima facie case, but a highly convincing one. When
the testimony of the Respondent's witnesses and that of
the laid-off employees was inconsistent, I credited that of
the employees because of my observation of their de-
meanor while testifying, the existence of contradictions
in the testimony of Lovett and Barbato as well as their
failure to controvert, in any meaningful way, the testimo-
ny of the employees, the overall consistency of the pat-
tern of conduct on the part of the Respondent, and the
well-documented history of deception on the part of the
Respondent. The presentation of a pretextual reason re-
quires an inference that the Respondent's actions were
taken for the reasons and with the motivations alleged by
the General Counsel. However, there is an altogether
different avenue which brings me to the same conclu-
sion.
Counsel for the General Counsel, in his posthearing
brief, correctly observes that the Respondent actually
failed to present any reason whatsoever for the layoffs
on March 4. The Respondent's case never proceeded
past the point of contending that the Hartford accounts
were transferred to other facilities "in an effort to realign
deliveries for cost efficiency." The posthearing brief of
the Respondent states plainly that the decision to transfer
the work was based solely "on considerations unrelated
to labor costs." Having spoken about the transfer of ac-
counts, the Respondent never proceeded to explain the
layoffs. If labor costs were not a consideration, then the
mystery is deepened rather than explained. The Re-
spondent had abundant work, experienced employees to
handle it, a new facility built only a few miles from
where they were working and to which they could
easily be transferred-so it laid them off and utilized
more recently hired (nonunion) employees. Even if we
accept the Respondent's entire argument about the trans-
fer of work to a consolidated facility for reasons of cost
efficiency, we are left with not a word of explanation for
the layoffs on March 4.
The Respondent thus completely failed to meet its
burden under Wright Line.
2. Evidence of animus and intention to circumvent
the Union
The Respondent's credibility on the issue of its motiva-
tions for the steps it took in laying off workers and fail-
ing to deal with the Union were severely impaired by
the veil of secrecy which surrounded its move to Enfield
and the deviousness of its dealings with the Union. At
the hearing, the Respondent made no attempt to explain
its behavior in failing to made disclosures when it mani-
festly ought to have done so. Its attempt to mislead the
Union commenced with the very notification that Hart-
ford would be closed. The letter of January 31 read in
part as follows:
This is to notify you that I have been requested
to notify you that the management of Safelite is con-
sidering closing the Safelite warehouse located at 20
Chestnut Street, Hartford, Connecticut.
If you desire to discuss the effects of such a clos-
ing on unit employees represented by your union
before a final decision is made, please send me writ-
ten notification within ten (10) days from your re-
ceipt of this letter. [Emphasis added.]
The letter is obviously misleading in its implication
that the decision had not yet been made. At the time it
was written, Enfield was beginning its operations, and in
the course of its first month would service almost two-
thirds of the customers whom Hartford serviced in De-
cember 1982. As the letter was prepared by, signed by,
and placed on the letterhead of Respondent's counsel, I
infer that its wording was carefully considered.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The deception continued during the meeting of Febru-
ary 22, with technically `correct but misleading answers
being given to questions put by union counsel. The
Union's attorney was told that Hartford work was being
absorbed by other facilities, but not that it was being ab-
sorbed by one other facility which had just been opened
a few miles from Hartford. When the Union's attorney
asked specifically whether Respondent planned to open
any new facilities, the Respondent's answer, given
through its counsel who represented it before me at the
hearing, was that there were no present plans to open
another facility. This answer, while technically correct
because Enfield was already operating and there un-
doubtedly were no plans to open yet another facility,
cannot be viewed otherwise than as a grossly misleading
answer designed to throw the Union's counsel off the
track.
If Respondent's representatives had any second
thoughts about their misleading answer, they had an op-
portunity to correct it when counsel for the Union asked
whether any of the Hartford deliveries had been trans-
ferred to other locations. Respondent's answer, delivered
through Lovett, was simply that there had been transfers
of deliveries to other locations. A fair answer would
have been that a substantial percentage of the Hartford
deliveries were being made from a new facility located
only a few miles away. Having twice failed to disclose
the existence of the Enfield facility, Respondent's repre-
sentatives compounded the failure to make full disclosure
by making statements implying that as of that time noth-
ing had yet been done. Counsel for the Respondent, in
his posthearing brief, concedes that he himself empha-
sized that the employer was losing money, that time was
of the essence and that something needed to be done
quickly.
As of that point in the meeting of February 22, the
Respondent's representatives had twice given technically
correct but grossly misleading answers designed to con-
ceal the existence of the Enfield facility and had made
assertions indicating that action about Hartford was yet
to be taken. When counsel for the Union asked if Re-
spondent intended to offer the Hartford employees job
opportunities, counsel responded that the Company
would do so "if there-was a need for them arising."
This was followed with a further misleading statement
by counsel to the effect that the decision to close Hart-
ford resulted from a "very careful, and very intensive
review over some prior several months" and had been
made very recently. We know of course that the lease
and construction agreement were signed on September 1,
1982; Enfield had begun operation on February 1; and
that new employees had been hired to work there in ad-
dition to four employees moved over from Springfield.
There appear to have been other misrepresentations as
well. In response to a question as to whether personnel
at other locations had been increased, an answer was
given to the effect that "minor adjustments" had been
made where needed. I do not, however, credit Trykows-
ki's testimony that at the February 22 meeting Respond-
ent's representatives denied that any new plants had been
opened in the area. Nothing which had occurred or
which had been said in the meeting would have prompt-
ed such a direct and specific question, and the witness'
recollection appears to have been influenced by his
knowledge of what occurred subsequently.
The conduct of the Respondent throughout the En-
field episode and the meeting of February 22 is sufficient
to establish animus and unlawful motive for the Re-
spondent's actions. Its existence is demonstrated, in addi-
tion, by the layoffs and failure to recall the six active
Hartford employees; the interviews and meetings with
them, in the course of which responsible representatives
of Respondent made it clear that Enfield was to be a
nonunion shop, on the premises of which no union con-
sultation or activity would be tolerated; by the Respond-
ent's propensity for dealing with the employees directly,
bypassing their collective-bargaining representative; and
even by attempting to create a case that the employees
had rejected the offer of transfer to- Enfield, a position
which was abandoned at one of the meetings when Re-
spondent's counsel recognized the validity of the re-
quests for transfer which Trykowski had prepared for
the employees. (Notwithstanding this, Lovett attempted
at the hearing to leave the impression that the employees
had refused to work when they came in to Enfield in re-
sponse to the mailgrams. All of the testimony clearly in-
dicated that they hesitated to start without consultation
with the Union. Their very presence deomonstrated their
desire to get back to work.)
In the discussion of the statements made by Rawnsley
and Lovett to the employees, I reviewed the contents of
memoranda prepared by Lovett and Twist. These clearly
demonstrated union animus. There is more, however. A
further memorandum was apparently prepared as a basis
for briefing the Enfield employees who were transferred
from Springfield. Twist indicated what points he intend-
ed to cover and Lovett wrote them down. It starts out
with the observation that six former employees from
Hartford will be joining Enfield and that they are senior
people with time on the job. It continues:
2. Why-disagreement with bargaining unit (union)
as to how many employees were to be transferred.
(They wanted all former employees and they want
Enfield to be a union facility.) Time lapse from
Htfd closing.
Item 3 of the memorandum begins with two words
scratched out: "Avoid consenting-" It then continues:
Union situation
Monday's events-6 men
Union interference-making Htfd inefficient
Unions declining
Htfd wages-$5.80 to $7.00
Union & former Htfd employees will probably ask
you to sign union cards
Free from union dues, initiation fees, fines, assess-
ments
Non-union company never has had a strike
LEAR SIEGLER, INC.
3. Enfield as "Hartford Removed "; Enfield as
accretion to the unit
The four employees who had worked at Springfield
and the six newly hired Springfield workers who were at
first put to work building racks at Enfield all assumed
the duties of driver-warehousemen at Enfield . From the
start of operations , that facility served an area which
overlapped the area being served by the Hartford facility
and in- its first month of operation made deliveries to
two-thirds of the customers who had received deliveries
from the Hartford facility the preceding December. The
employees working at Enfield did work which was iden-
tical with that performed by, the workers at' Hartford.
Their branch managers reported to the same vice presi-
dents, regional managers , and the same labor relations
manager . The two locations are 20 minutes away from
each other by automobile . These factors suffice ' to define
Enfield as an accretion to the Hartford unit . Great Atlan-
tic & Pacific Tea Co., 140 NLRB 1011 ( 1963). It may also
be noted that , besides the fact that all personnel , payroll,
and customer service matters were centrally controlled
by the managerial personnel at Cambridge , the Enfield
and Hartford facilities essentially obtained their employ-
ees from the same labor market . See Universal Security
Instruments, 250 NLRB 661 , 670 (1980), modified 649
F.2d 247 (4th Cir . 1981).
Furthermore, in its express reliance on Robert Hall
Clothes, 118 NLRB 1096 (1957), the decision in Great At-
lantic & Pacific Tea Co. makes it clear that the centraliza-
tion of management and administrative control is not re-
quired only at the lower hierarchical levels, but that the
requirements are satisfied if such centralization exists by
reason of unified control at a higher corporate or corpo-
rate conglomerate level. These two cases make it clear
that, if those factors are present , it makes no difference
whether the two operations under scrutiny are in the
same building or spread over a large region of the coun-
try.
I therefore find that Enfield was an accretion to the
Hartford unit, while Hartford was still being operated,
and that it superseded Hartford on March 4 as a plain
example of a runaway shop. The timing , the deception,
the remarks by Lovett and the memoranda prepared in
connection with the - meetings with employees leave no
room for doubt. The Respondent professed to have a
"good faith doubt" that the Union represented a majority
of the Enfield employees , but its skepticism was ground-
less and its good faith was nonexistent, for the Union
clearly did represent a majority of the unit as it was de-
lined in the collective-bargaining agreement which the
Respondent was so assiduously ignoring. A majority of
the unit were members of the Union . That calculation is
arrived at by including the discriminatees and excluding
the employees who were hired at Springfield and moved
to Enfield . Air Express International Corp ., 245 NLRB
478 (1979), modified 659 F.2d 610 (5th Cir . 1981), enfd.
in conformity with the circuit court 's decision 670 F.2d
512 (5th Cir . 1982).
The discriminatees consist of the six active Hartford
drivers who were laid off on March 4. The total unit
consists of only 10 persons , the 6 who should have been
transferred from Hartford and the 4 original Springfield
793
employees who worked there before the additional help
was hired . Of course , if it should turn out that I have im-
properly rejected the General Counsel 's contention that
the four drivers from Hartford who were on layoff status
should have been recalled , then the Union's majority
would be even greater.
C. Conclusions
Considering the specific items of proof to which I
have alluded already , the record as a whole , the duplici-
tous manner in which the Respondent has conducted its
dealings with the Union and the obvious carrying for-
ward of that undesirable trait into the questionable crecti-
bility of the Respondent 's witnesses at the hearing of this
case, I have little difficulty in coming to the conclusion
that the Respondent committed most of the acts with
which it is charged in the complaint. It did prohibit con-
tact with the Union by members of the recognized col-
lective-bargaining group from the premises at Enfield,
and strenuous efforts were made to wean the members of
the Union away from their loyalty to it. The violations
of Section 8(a)(1) in this regard are clearly established.
Under different circumstances, the failure to transfer
the six unit employees working at Hartford on March 4
might have posed a more difficult problem . If the exigen-
cies of business mandate layoffs, such considerations
must be given great weight and contentions that unlaw-
ful motives were operating must be scrutinized with
great care . Nothing like that was shown in this ' case,
however. Instead , the Respondent made a weak showing
that it had effectuated a consolidation of facilities at one
location in the interests of cost efficiency, but wholly
failed to present any reason for laying off employees.
The Respondent's personnel , on the contrary , made nu-
merous statements orally and in memoranda which show
rabid antiunion animus and a design to keep the Union
out of Enfield . Its conduct in keeping the opening of the
new facility at Enfield secret as long as possible requires
no additional comment , nor 'does its obvious readiness to
withdraw recognition from the Union at the earliest
practicable moment. The violations of Section 8(a)(3)
and (5) are thus clearly demonstrated.
Although similar unlawful motivations might have
prompted the layoffs in October, November , and Janu-
ary, there is no actual evidence that such was the case,
and I have accordingly found in favor of the Respondent
on that issue.
111. THE EFFECT OF THE UNFAIR LA13OR PRACTICES
UPON COMMERCE
The violations of the Act found to have been commit-
ted by the Respondent have a close, intimate , and sub-
stantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. Respondent Safelite, Division of Lear Siegler, Inc. is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Local 153, International Ladies Garment Workers
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. All nonsupervisory production and maintenance em-
ployees employed by the Respondent at its facility for-
merly located at 20 Chestnut Street , Hartford , Connecti-
cut, and subsequently relocated at Enfield , Connecticut,
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section , 9(a) of the
Act.
4. Local 153, at all material times, has been and contin-
ues to be the exclusive representative of all of the em-
ployees in the above-described unit for purposes of col-
lective bargaining with respect to rates of pay, hours of
employment , and other terms and conditions of employ-
ment.
5. The Respondent violated Section 8(a)(1) of the Act
by: (a)_ promising the employees increased wages and
benefits if they abandoned the Union ; and (b) promulgat-
ing a rule prohibiting all discussions of or with the Union
on Respondent 's premises without limitation of time.
6. The Respondent violated Section 8(a)(3) and (1) of
the Act by: (a) laying off six driver-warehousemen on
March 4 when it terminated operations at its Hartford fa-
cility; (b) refusing to offer said employees transfer to its
new facility at Enfield , Connecticut ; and (c) failing and
refusing to recall said employees-Manuel Alamo , Orlan-
do Cotto, Manuel Garcia , John Goins , Nelson Martinez,
and Pedro Santos.
7. The Respondent violated Section 8(a)(5) and (1) of
the Act by: (a) negotiating directly with employees rep-
resented by the Union with respect to wages, benefits,
and terms and conditions of employment ; (b) refusing to
bargain with the Union concerning the decision to trans-
fer work from the Hartford facility to the Enfield facility
and concerning the effects of such transfer on the em-
ployees; (c) refusing to abide by the terms of the collec-
tive-bargaining agreement with respect to driver-ware-
housemen at Enfield , Connecticut ; and (d) withdrawing
recognition of the Union as the collective-bargaining rep-
resentative of the unit.
8. The Respondent did not commit any other viola-
tions of the Act except as herein found.
9. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent engaged in unfair
labor practices, I recommend that the Respondent be di-
rected to cease and desist therefrom and take certain af-
firmative action to effectuate the policies of the Act.
Thus, with respect to the violations of Section 8(a)(1) of
the Act which I have found to have been committed by
the Respondent, I shall recommend that the Respondent
be directed to cease from promising employees increased
wages and improved benefits in exchange for their agree-
ment to work in a nonunion shop and to rescind the rule
prohibiting all discussions of or with the Union on Re-
spondent's premises , unless appropriate exceptions are
made to exclude nonworking time.
With respect to the six driver-warehousemen who
were working at the Hartford facility as of the day it
was closed, March 4, it appears that all but one, John
Goins, resumed work at the Enfield facility on April 7.
While the precise reason for the failure of Goins to
resume work is not clear from the evidence, it is appar-
ent that no intention on his part to quit was manifest as
of March 4. Accordingly, there would be no reason to
draw any distinction between his right to backpay by
reason of the failure to offer a transfer to Enfield or-by
reason of failure to recall him, and that of any of the
other members of the group. If, in fact, he was not avail-
able for work at Enfield after March 4, that would be a
matter of proof by the Respondent in a backpay pro-
ceeding.
Accordingly, I shall recommend that the Respondent
be directed to ensure that the reinstatements of the em-
ployees, Manuel Alamo, Orlando Cotto, Manuel Garcia,
Nelson Martinez, and Pedro Santos have been to their
former or substantially equivalent positions without prej-
udice to their seniority and any other rights and privi-
leges, and that the Respondent make them and John
Goins whole for any loss of earnings and other benefits
which they may have suffered by reason of their layoff
on March 4, 1983, with backpay to be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest thereon to be computed in -the
manner prescribed in Florida Steel Corp., 231 NLRB 651
(1977), and Isis Plumbing Co., 138 NLRB 716 (1962). I
further recommend that the Respondent be required to
remove from its records any reference to their unlawful
layoffs and provide them with written notice of such ex-
punction and that their unlawful layoffs will not be the
basis of any further personnel action against them.
By reason of Respondent's violations of Section 8(a)(5)
of the Act, I shall recommend that Respondent be direct-
ed to bargain collectively with the Union, on request by
the Union, respecting the effects upon the employees
whom it represents of the relocation of Respondent's
Hartford facility to Enfield. (In view of the fact that the
Hartford facility is defunct and its operation is being
continued at Enfield, there is no point to directing that
negotiations proceed respecting the decision to close.) I
shall further recommend that Respondent be directed to
recognize the Union as the collective-bargaining repre-
sentative of the unit defined herein as the appropriate
bargaining unit under the collective -bargaining agree-
ment at Enfield and to apply the provisions of the collec-
tive-bargaining agreement entered into in October 1982
as applicable to the employees covered thereby at the
Enfield unit and, if it has expired, to maintain same in
effect pending negotiation of a new contract.
[Recommended Order omitted from publication.]