Lear Siegler, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1989

295 N.L.R.B. 857 (N.L.R.B. 1989)

LEAR SIEGLER, INC.
Lear Siegler, Inc., No-Sag Products Division and
International Union, United Automobile, Aero-
space & Agricultural Implement Workers of
America (UAW), AFL-CIO. Case 30-CA-9320
June 27, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFr AND DEVANEY
On July 10, 1987, Administrative Law Judge
Richard H. Beddow Jr. issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and a motion to reopen the record.
The General Counsel filed a limited exception, a
brief in support of its exception and in answer to
the Respondent's brief, an opposition to the Re-
spondent 's motion to reopen the record, and a
motion to strike portions of the Respondent's ex-
ceptions and 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, briefs, and mo-
tions and has decided to affirm the judge's rulings,'
findings , 2 and conclusions as modified below and
to adopt the recommended Order as modified.
1. The judge concluded that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by effec-
tively ceasing production operations at its Her-
mansville , Michigan plant on June 27, 1986,3 trans-
ferring production to its facility at West Chicago,
Illinois, subcontracting the Hermansville plant's
warehousing functions, and laying off indefinitely
all of its full-time production employees at Her-
mansville because of their actions in pursuing union
representation . For the reasons set forth below, we
affirm the judge's findings except concerning sub-
contracting.4
The judge found that the General Counsel estab-
lished a prima facie showing that the June 27 lay-
offs were motivated by the employees' action in
' The Respondent has excepted to the judge 's receiving into evidence
the decision of the United States district court in a collateral proceeding
under Sec . 10(j) of the Act. Because we do not rely on the district
court's decision, we find it unnecessary to rule on the Respondent's ex-
ception
8 For the reasons discussed below, we do not adopt the judge 's finding,
contained in sec . III,C of his decision , that the Respondent and Les
Brown Chair Company had not reached an impasse in their negotiations
for a lease of a new facility but, as late as June 11 , 1986, expected to
reach an agreement We find no support in the record for that finding.
Unless otherwise stated , all dates are in 1986.
* We do not adopt the judge's conclusion of law that the Respondent
violated the Act by subcontracting the warehousing functions of its Her-
mansville plant, because the lawfulness of the subcontracting was neither
alleged nor fully litigated
857
seeking union representation.5 Thus, on June 13,
the Respondent received a letter signed by an orga-
nizer from the United Auto Workers (the Union)
stating that the Union was attempting to organize
the Respondent's employees. On June 18, the Re-
spondent's plant manager, John Lang, approached
employee Daniel LaFave in the plant and asked
him why the employees wanted a union and where
he had gotten the union materials that he had been
distributing; LaFave responded that he did not
have to answer. On June 19, the Respondent's di-
rector of manufacturing, Joseph Progar, met with
all the full-time employees and asked why they
were going for "outside help"; threatened to close
the plant immediately ("we will shut the doors to-
morrow") if an "agreement" was not reached; per-
suaded the employees to sign a letter, which
Progar had dictated, stating that they did not wish
to seek "outside representation ," and threatened to
"take some sort of action" if two employees did
not sign ; tore up two disciplinary warnings to
LaFave; promised to implement a piecework
system the employees had requested; gave LaFave
a 5-cent-per-hour wage increase ; and instructed the
employees to remove all UAW insignia and not to
wear any UAW materials in the plant in the future.
On June 23, the day the Respondent received a
letter from the Union stating that it had filed a rep-
resentation petition and that it was willing to prove
its majority status by means of signed union author-
ization cards, Lang asked LaFave if he could get
the authorization cards back. When LaFave re-
fused, Lang asked him if he was still for the Union
and, on receiving an affirmative answer, told
LaFave that he might be out of a job by the end of
the week.
There can be no doubt that, as the judge found,
the statements of Lang and Progar, both admitted
statutory supervisors, established a prima facie
showing that the June 27 layoffs were unlawfully
motivated.6 The burden therefore shifts to the Re-
spondent to establish that it would have transferred
its production operations and laid its Hermansville
employees off on June 27 even in the absence of
the union organizing campaign .7 We agree with
the judge that the Respondent has failed to carry
its burden of persuasion.
The Respondent's Hermansville facility was es-
tablished in 1982 to cut flexible polyurethane foam
into shapes for Les Brown Chair Company, one of
the Respondent's major customers. The bulk foam
5 The Respondent does not except to this finding.
a The judge also found that Lang and Progar 's statements violated Sec
8(a)(1) of the Act The Respondent has not excepted to that finding.
7 Wright Line, 251 NLRB 1083 , 1089 (1980); NLRB v. Transportation
Management Corp., 462 U.S 393 (1983).
295 NLRB No. 83
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
is produced at the Respondent's pour plant in West
Chicago, Illinois, and transported by truck to Her-
mansville and other fabrication plants, where it is
cut to order for customers . The Respondent's wit-
nesses testified that the Hermansville fabrication
plant is antiquated and inefficient , and could not
always meet Brown Chair's daily production re-
quirements of approximately 600 chairs per day.
Consequently , the Respondent augumented its Her-
mansville production with the output of its West
Chicago fabrication plant. Moreover, in the spring
of 1986 , Brown Chair began constructing a new
production facility which enabled it to expand its
output to around 1000 chairs a day , beginning in
July. The Respondent could not have fulfilled
Brown Chair 's increased production requirements
using only its existing Hermansville plant.
Early in 1986, the Respondent and Brown Chair
began discussing the construction of a new, ex-
panded fabrication plant for the Respondent in
Hermansville . The parties reached a tentative
agreement under which Brown Chair would con-
struct a new facility and lease it to the Respondent
for 10 years for a rental of approximately $3965
per month.8 The Respondent, however, was not
willing to commit itself unconditionally to a 10-
year lease , because the only use for such a facility
was to fabricate products for Brown Chair, and if
for any reason the Respondent lost a major portion
of Brown Chair's business , it did not wish to be
bound to a lease on a facility for which it had no
other use . Thus, about June 6, Respondent sent
Brown Chair a proposed lease agreement contain-
ing a provision under which the Respondent could
terminate the lease without penalty if Brown Chair
either went out of the upholstered furniture busi-
ness or used another foam supplier . Brown Chair
rejected the Respondent 's proposed terms out of
hand, and instead offered only to promise that it
would continue to purchase foam products from
the Respondent as long as the Respondent re-
mained , in Brown Chair's estimation , competitive
in price and quality. Brown Chair transmitted that
proposal to Progar by letter dated June 11 . Progar
received Brown Chair's proposal on-June 17, the
same day he first saw the Union 's letter to Lang in-
forming the Respondent of its organizing cam-
paign.
Progar testified that he met on June 17 with
Gary Nabor, the Respondent's vice president for fi-
nance, and that the two men determined that the
lease negotiations should be called off because it
would be impossible to obtain corporate approval
of a lease without the "escape clause" that had
8 By letter dated April 23, Brown Chair stated its intention to com-
mence construction of the new facility in September or October
been definitively rejected by Brown Chair. On
June 18 Progar met with Allen Hutton and Robert
Graves, Respondent 's president and vice president
for marketing and sales, and informed them of the
state of lease negotiations . The three also discussed
the union organizing campaign at Hermansville. At
that meeting , according to Hutton and Graves, a
decision was made to relocate the fabrication work
then being performed at Hermansville to West Chi-
cago, and to convert the Hermansville facility to a
customer service or distribution center.
The Respondent's witnesses adduced a variety of
explanations for the decision to relocate the Her-
mansville production work to West Chicago.
Hutton first testified that one reason was that there
was not sufficient work in West Chicago.9 Later,
however, Hutton contradicted himself and stated
that the work was moved not because the West
Chicago employees did not have enough work, but
solely in order to make optimal use of the Re-
spondent's assets.10 Progar , in turn , contradicted
Hutton by stating that he thought the problems
that had arisen over the lease played an important
part in the decision to cease production at Her-
mansville. Graves also testified that he thought the
relocation decision was caused in part by the prob-
lems over the lease . Hutton testified that the union
organizing campaign had no impact on the decision
to relocate.
On June 19, as noted, Progar met with the Her-
mansville employees and threatened to close the
plant unless they could come to an "agreement"
over the issue of union representation . He did not
mention that any decision had been made to trans-
fer production operations to West Chicago. After
that meeting , however, Progar met with Bob
Brown, president of Brown Chair, and informed
him that the relocation decision had been made.
On June 23, the day Lang received the Union's
letter stating that a representation petition had been
filed , Progar telephoned Jim Ivanelli , president of
Meyers Transportation, the trucking company that
transported foam from the Respondent 's pour plant
in West Chicago to Hermansville. Progar informed
Ivanelli that the Respondent had changed the way
it had done business, and reached an agreement
with Ivanelli under which Meyers' employees
would unload trucks at Hermansville.
8 Progar and Hutton testified that , because of the loss of several large
customers in early 1986, the West Chicago fabrication plant had lost
some 75 percent of its volume of production.
10 Progar testified that in 1985 the Respondent changed its "philoso-
phy" from one of establishing numerous facilities around the country to
one of "asset utilization"-i.e., consolidation of operations into fewer fa-
cilities that would be used more intensively . He further testified that the
West Chicago fabrication plant was operating only one shift in 1985,
even before the loss of work referred to in In 9
LEAR SIEGLER, INC. 859
On June 27 all the Respondent's full-time em-
ployees at Hermansville were informed by letter
that they were indefinitely laid off. The employees
laid off included those whose task of unloading
trucks was subcontracted to Meyers Transporta-
tion.
The Respondent contends that it had no choice
but to move its Hermansville fabrication work to
West Chicago, and therefore that the June 27 lay-
offs were inevitable. We find that contention un-
persuasive. Although it may be argued that there
were a number of conditions militating in favor of
relocating the Hermansville production work to
West Chicago, most of those conditions-the inad-
equacy of the Hermansville facility, the loss of
work at West Chicago, the Respondent's new "phi-
losophy" of "asset utilization," and the installation
of more efficient production equipment at West
Chicago" I-existed months before the June layoffs.
Even if, as the Respondent asserts, its lease negotia-
tions with Brown Chair had reached impasse by
mid-June, we cannot conclude that the failure of
the parties to the negotiations to reach agreement
compelled the relocation of fabrication work to
West Chicago. The Respondent does not contend,
nor does the evidence indicate, that it would have
been impossible or even unprofitable for the Re-
spondent to have continued to produce for Brown
Chair in Hermansville and to have augmented that
production to the extent necessary from its West
Chicago plant. Indeed, we infer that the Respond-
ent would have adopted exactly that course for at
least several months if the lease negotiations had
succeeded, because the parties to those negotiations
apparently contemplated that construction on the
new facility would not even begin before Septem-
ber.12
The Respondent's economic defense is undercut
further by its own internal inconsistencies. Thus,
the allegation that the failure of the lease negotia-
tions with Brown Chair necessitated the relocation
of production from Hermansville to West Chicago
is contradicted by Hutton's testimony that the only
reason for the move was to make optimal use of
the Respondent's assets . Moreover, we find it curi-
ous that the Respondent, contrary to its "philoso-
phy" of "asset utilization" and in spite of substan-
tial excess capacity and new and more efficient
equipment at West Chicago, nonetheless forged
I' In February 1986, the Respondent installed a computerized saw for
cutting foam at its West Chicago fabrication facility. The new machine
was set up to produce the same kind of chair cushion produced at Her-
mansville for Brown Chair, it could produce 4200 such cushions in 8
hours, compared with only about 900 by an exceptionally skilled worker
with a band saw of the type used in Hermansville.
12 See fn 8, supra.
ahead with negotiations over a 10-year lease on a
new facility at Hermansville.
Even if the Respondent had been forced by eco-
nomic conditions to shift its Hermansville fabrica-
tion work to West Chicago, there is no evidence
that there was any such compelling reason for it to
lay off the employees who had unloaded trucks at
Hermansville and to subcontract their unloading
duties. Indeed , the Respondent does not contend
that the layoff of those employees and the atten-
dent subcontracting were economically motivated.
Although Progar 's testimony indicates that the Re-
spondent may have realized some savings by sub-
contracting , there is no reason to believe that such
savings could not have been realized long before
the Respondent learned of the union organizing
campaign.
To summarize , then , we find that the Respond-
ent has not shown that it would have transferred
production and laid off its Hermansville employees
on June 27 had it not been for their participation in
the union organizing campaign . Accordingly, we
agree with the judge that the Respondent has failed
to carry its Wright Line burden , and that its actions
violated Section 8(a)(3) and ( 1) of the Act.12
The Respondent contends , however, that the
judge erred in analyzing the case under Wright
Line. In the Respondent 's view, the action com-
plained of here amounted to a plant closing , the va-
lidity of which must be assayed under Textile
Workers Union v. Darlington Mfg. Co. 14 In that
landmark case, the Supreme Court ruled that an
employer may terminate its entire business for any
reason it pleases-even antiunion animus-without
violating the Act, but that the partial closing of a
business would violate Section 8 (a)(3) if motivated
by a purpose to chill unionism in any of the em-
ployer 's remaining plants, and if the employer rea-
sonably might have foreseen that the closing would
likely have that effect . 15 The Respondent argues
that neither of the Darlington conditions for a vio-
lation have been met in this case . The judge dis-
agreed . He found that the Respondent's actions
18 In so finding , we do not rely on the judge 's characterization of the
timing of the Respondent 's actions as "precipitous" when compared with
the length of time it took the Respondent to convert certain other pro-
duction facilities to distribution centers . The record does not reflect how
closely the circumstances of the other conversions resembled those in
Hermansville, and absent such information we are unwilling to draw an
adverse inference from the fact that the conversion of the latter facility
was accomplished more rapidly . (We agree with the judge, however, that
the timing of the layoffs , as well as of the threats and promises by Progar
and Lang-shortly after the employees' organizing efforts began-further
indicates the pretextual nature of the Respondent 's defense )
We also do not rely on the judge's finding that the layoffs and transfer
of operations were made permanent after the Union won the election.
That finding would not , in any event , affect the scope of the Order.
14 380 U.S. 263 ( 1965).
10 380 U.S. at 273-275.
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with respect to its Hermansville facility were moti-
vated by an intent to chill unionism , and that there
was affirmative evidence of an actual chilling effect
on the Respondent 's remaining employees.
We do not rely on the judge's analysis in this re-
spect, because we think that both he and the Re-
spondent are mistaken in attempting to apply the
Darlington analysis to this case . In Darlington, the
employer ceased operations entirely at the affected
plant and sold all the plant's machinery and equip-
ment at auction . 16 The Respondent here, by signifi-
cant contrast, did not cease operations; instead, it
transferred its fabrication work to its West Chicago
plant , and subcontracted the remaining work (the
unloading of trucks) to Meyers Transportation.
Both discriminatory relocation of work-the "run-
away shop" gambit-and discriminatory subcon-
tracting were explicitly distinguished from partial
closings in Darlington , 17 and have been found con-
sistently to violate Section 8 (a)(3) when motivated
by antiunion animus . 18 Because we find this case
distinguishable from Darlington , we do not rely on
the judge 's analysis of the "chilling effect" of the
Respondent 's actions.
2. The judge found that the Respondent violated
Section 8 (a)(5) of the Act when , after the Union
was certified as the bargaining agent for its produc-
tion employees at Hermansville , it contacted laid-
off employee Jalaine Whitens directly and recalled
her to a new job involving unit work , at a substan-
tially higher rate of pay , without notice to or bar-
gaining with the Union. The Respondent excepts.
It argues that , although the complaint alleges that
the rehiring of Whitens involved wages , hours, and
other terms and conditions of employment in the
unit, it does not allege that her new job is in the
bargaining unit . The Respondent further urges that
the Union seems to believe that Whitens is not a
unit employee . Finally, the Respondent asserts that
a major portion of Whitens ' new duties are office
clerical in nature , and thus do not fall within the
unit represented by the Union . We find no merit in
the Respondent 's exception.
An election was held on July 22 among the Re-
spondent's production and maintenance employees.
A majority of the ballots were cast in favor of the
Union, which was certified as the exclusive bar-
gaining representative for those employees on July
30. About July 31, Supervisor Barbara Malone, on
16 Id. at 266.
17 Id . at 272-273 and fn . 16. See also B&P Trucking, 279 NLRB 693,
701 (1986)
1e See , e.g, Pacemaker Driver Service, 269 NLRB 971, 979-984 (1984),
enfd . in relevant part sub nom . Carrier Corp. v. NLRB, 768 F.2d 778 (6th
Cir. 1985); Garwin Corp., 153 NLRB 664 (1965), enfd. in relevant part
374 F.2d 295 (D.C. Cir. 1967), cert. denied 387 U.S. 942 (1967) (reloca-
tion of work); B&P Trucking, supra; Hood Industries, 248 NLRB 597, 601
( 1980), modified 273 NLRB 1587 (1985) (subcontracting).
Progar's instruction , telephoned Whitens and invit-
ed her to return to work in the customer service
department, effective August 4 . The new position
paid $6 .75 per hour, an increase of $1.60 over the
wage rate for her previous job in the "Saws De-
partment ." It is undisputed that the Respondent did
not notify the Union, or afford it an opportunity to
bargain, about the rehiring of Whitens.
In her new position , Whitens spends at least a
portion of her time performing work that, until
June 27 , was performed by employees in the unit.
Thus, Malone admitted that, both before the layoff
and after her recall , Whitens did some work load-
ing and unloading trucks, and that she still occa-
sionally cuts samples of foam for Brown Chair, as
she did before June 27. Whitens verified that
before she was laid off, she cut on a tilt saw and
loaded trailers , and that she still loaded trucks for
Brown Chair . Moreover, we do not agree with the
Respondent that Whitens ' other duties are office
clerical in nature . Whitens testified that, apart from
cutting foam samples and loading trucks, she takes
orders from Brown Chair , finds out what the Re-
spondent has in stock and what needs to be or-
dered , does a daily card index , and writes out sales
and bills of lading . Those duties are of the kind
that the Board typically associates with plant cleri-
cal employees , who generally are included in main-
tenance and production units . 19 Accordingly, we
agree with the judge that Whitens performs unit
work to a significant extent, if not exclusively, in
her new job , and therefore that the Respondent
violated Section 8(a)(5) when it failed to notify the
Union and bargain with it , but instead dealt with
her directly , over her rehiring on different terms
and conditions of employment.20
3. In his recommended Order, the judge directed
the Respondent , inter alia, to reestablish and
resume production operations at Hermansville at
the level and manner of operation that existed up
to June 27 , and to offer to reinstate all the laid-off
unit employees . The Respondent excepts to both of
those provisions.21
19 See, e.g, Hamilton Halter Co., 270 NLRB 331 (1984).
20 Tarlas Meat Co., 239 NLRB 1400 (1979) The Respondent's conten-
tion that bargaining was not required because the Union is not interested
in bargaining is unpersuasive. The testimony on which the Respondent
relies establishes that the Union did not learn of Whitens' rehiring until
after it had occurred , and did not discover that she was earning a sub-
stantially higher wage rate until a month or more after she had returned
to work . The Union 's attitude toward bargaining over Whitens' rehiring,
long after it had taken place, is immaterial . The Respondent 's statutory
duty was to offer the Union an opportunity to bargain before it took
action. Instead , the Respondent presented the Union with a fait accompli;
under such circumstances, an employer will be found to have violated
the Act, even absent a union demand for bargaining
21 The Respondent asserts that it was deprived of due process because
the judge ordered restoration of the status quo ante even though unlaw-
Continued
LEAR SIEGLER, INC.
It is the Board's usual practice in cases involving
discriminatory relocation of operations to require
the employer to restore the operation in question
and to reinstate all discriminatorily terminated em-
ployees, unless the respondent can demonstrate that
restoration of the status quo ante is inappropri-
ate.22 However, the Board has not been consistent
in the showing it has required of respondents. In
numerous decisions, the Board has required proof
that restoration of the status quo ante would be
unduly burdensome;23 in others it has required a
demonstration that restoration would endanger the
respondent's continued viability;24 and in still
others it has used both phrases seemingly inter-
changeably.25
In order to put an end to this inconsistency and
to the confusion it must engender, we have decided
henceforth to apply only the "unduly burdensome"
standard where restoration of the status quo ante is
at issue . Our choice of the "unduly burdensome"
test is based in part on its longstanding use and ac-
ceptance by the courts'26 and in part on our per-
ception that requiring respondents to prove a
threat to their "continued viability" is too stringent
a standard. The latter formulation implies that a
restoration remedy is appropriate unless the re-
spondent can show that its very existence would be
imperiled by restoration of closed or transferred
operations. We conclude that such a standard is un-
realistically high, especially in the case of multifaci-
lity businesses such as the Respondent. Requiring
such an entity to reopen a demonstrably unprofit-
able facility might not be found to threaten the sur-
vival of the enterprise if it could offset losses from
the reopened facility with profits from others; how-
ful relocation or plant closure was not alleged or litigated. We disagree.
The General Counsel at opening argument made it perfectly plain that
the relocation of work was considered part and parcel of the Respond-
ent's unlawful activity. Moreover, the General Counsel specifically stated
at opening argument that a restoration order was being sought . The Re-
spondent thus was put on notice from the commencement of the hearing
that relocation was part of the case, even though it was not alleged in the
complaint as a separate violation, and that restoration was the remedy re-
quested . Accordingly, we find no merit in the Respondent's contention
that it was deprived of due process.
22 See, e.g., B&P Trucking, supra at 703 ; Rebel Coal Co., 259 NLRB
258 fn . 2 (1981).
23 See , e.g, Woodline Motor Freight, 278 NLRB 1141, 1142 (1986),
enfd . in relevant part 843 F. 2d 285 (8th Cir. 1988); B&P Trucking, supra
at fn 3 ; Purolator Armored, Inc., 268 NLRB 1268, 1269 (1984), enfd. 764
F.2d 1423 (11th Cir 1985); Great Chinese American Sewing Co, 227
NLRB 1670 (1977), enfd. 578 F.2d 251 (9th Cir. 1978).
24 See, e.g, Service Merchandise Co., 278 NLRB 185, 188 (1986); Hood
Industries, 248 NLRB 597 fn. 3 (1980); R&H Masonry Supply, 238 NLRB
1044 fn 3 (1978), enf. denied in relevant part 627 F.2d 1013 (9th Cir.
1980)
25 See , e g., Hood Industries, 273 NLRB 1587, 1588 (1985); Rebel Coal
Co., supra at fn. 2.
26 See , e g., Fibreboard Corp v. NLRB, 379 U.S. 203 , 216 (1964), Team-
sters Local 171 v. NLRB, 863 F.2d 946, 957-958 (D.C. Cir. 1988); Wood-
line Motor Freight v. NLRB, 843 F.2d 285, 291 (8th Cir. 1988); NLRB v.
R & H Masonry Supply, 627 F.2d 1013, 1014 (9th Cir. 1980).
861
ever, in many instances requiring such cross-subsi-
dization (for indefinite periods) might well be
found to be unduly burdensome. Accordingly, we
abandon the use of the "continued viability" stand-
ard27 in favor of the "unduly burdensome" test,
which we shall apply exclusively in the future.28
We agree with the judge that the evidence intro-
duced at the hearing does not establish that it
would be unduly burdensome for the Respondent
to reestablish its Hermansville operation. Progar
admitted that, at the time of the hearing, most of
the Respondent's equipment remained at the Her-
mansville facility, and that all that would be neces-
sary for restoration of production would be people
and materials . The Respondent did not offer to
show that it would be unprofitable to restore the
Hermansville operation.
On June 9, 1987 (some 5 months after the hear-
ing), however, the Respondent filed a motion with
the judge to reopen the record to permit the intro-
duction of evidence that, it contended, would dem-
onstrate that restoration of work to its Hermans-
ville plant is inappropriate. The judge denied the
motion and, as we have noted, ordered restoration
of the work and reinstatement of the employees.
He found that questions concerning the appropri-
ateness of the remedy could be answered in the
compliance stage of these proceedings. The Re-
spondent excepts to the judge's refusal to reopen
the record and renews its motion before the Board.
The General Counsel opposes the motion and
moves to strike the portions of the Respondent's
brief that are based on evidence the Respondent
seeks to introduce, but that is not a part of the
record.
We shall deny the Respondent's motion to
reopen the record, but we shall permit the parties
to introduce at the compliance stage evidence that
may be relevant to the appropriateness of the resto-
ration and reinstatement portions of the remedy.
This approach comports with our usual policy of
leaving the details of the remedy to the compliance
process.29 It also will be more efficient than re-
opening the record, which would entail another
hearing before an administrative law judge, with a
possible appeal to the Board, before compliance
proceedings could even begin. Under our ap-
proach, the issues of restoration and reinstatement
will go directly to the compliance process, where
27 To the extent that the decisions cited in fns 24 and 25 , and other
decisions , have relied on the "continued viability" standard, those deci-
sions are overruled.
28 Our decision today also will put an end to the anomaly of using
tests of differing stringency in an interchangeable fashion See cases cited
at fn. 25, supra
26 See, e.g., Dean General Contractors , 285 NLRB 573 (1987).
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
they will be decided along with other issues con-
cerning the remedy . 30 We stress that both the Re-
spondent and the General Counsel will have every
opportunity at the compliance stage to introduce
any evidence that may be pertinent to the remedy,
provided of course that such evidence was not
available prior to the unfair labor practice hearing.
We are aware that the approach we take today
has met with mixed reviews in the courts of ap-
peals.31 However, in several cases in which courts
were unwilling to allow the appropriateness of re-
instatement to be decided in compliance proceed-
ings, the Board had unequivocally ordered rein-
statement ; its orders in those cases did not allow
the respondents to introduce evidence at compli-
ance bearing on the appropriateness of the
remedy. 32 The courts may have been concerned
that if such noncontingent orders were enforced,
the Board might ignore all evidence of the inappro-
priateness of reinstatement , and bring contempt
proceedings against the respondents based on the
literal terms of the orders.33 The Order we issue
today, by contrast , expressly provides that the Re-
spondent may introduce such evidence; the clear
implication is that if the Respondent can demon-
strate that restoration of its Hermansville operation
would be unduly burdensome , restoration will not
be required under this Order. Thus, court enforce-
ment of the Order in this case will enable the
Board to require restoration only if the Respondent
cannot show that restoration would impose an
undue hardship.
Although the Board in Hood Industries, 273
NLRB 1587 (1985), granted a respondent 's motion
30 Also , under our approach , if a court of appeals were to find that the
June 27 layoffs were lawful , it would not be necessary to decide whether
restoration and reinstatement are appropriate remedies.
31 Compare, e.g., NLRB v. North Carolina Coastal Motor Lines, 542
F.2d 637, 638 fn . 2 (4th Car. 1976); NLRB v. Globe Mfg. Co., 580 F.2d 18,
21-22 (1st Car . 1978); NLRB v. Plastilite Corp., 375 F.2d 343 (8th Car
1967) (leaving issue of appropriateness of remedy to compliance, ap-
proved by courts), with NLRB v. Fort Vancouver Plywood Co., 604 F 2d
596, 601-603 (9th Car 1979), cert. denied 445 U.S. 915 (1980); NLRB v.
Jacob E. Decker & Sons, 569 F.2d 357, 366-367 (5th Cir 1978); NLRB v.
Biscayne Television Corp., 289 F . 2d 338 (5th Car. 1961); NLRB v. Auburn
Foundry, 791 F.2d 619, 622-623 (7th Cit. 1986) (dicta) (leaving appropri-
ateness of remedy to compliance not accepted by courts)
32 See R. Vancouver Plywood Co, 235 NLRB 635, 646 (1978); Jacob E.
Decker & Sons, 223 NLRB 70, 77-78 ( 1976); Auburn Foundry, 274 NLRB
1317, 1318 (1985)
99 Several courts expressed concern that their contempt powers might
be involved unfairly under an approach such as the one we take in this
case. NLRB v. Jacob E Decker & Sons, supra at 366-367; NLRB Y. Bis-
cayne Television , supra at 340 ; NLRB Y. Auburn Foundry, supra at 621,
623. With all due respect , we perceive no such peril to the Respondent,
because it faces no greater risk of being found in contempt under our ap-
proach than it would if we were to grant its motion . Under either ap-
proach , if restoration was determined to be an appropriate remedy, the
Respondent could file exceptions with the Board and , if the Board did
not find merit in those exceptions , the Respondent then could petition for
appellate court review . Only if a court of appeals enforced a restoration
remedy , and the Respondent still refused to comply , could the Board
proceed against the Respondent in contempt.
to reopen the record to take evidence concerning
the appropriateness of the restoration remedy, the
Board in that case did not indicate that it was obli-
gated to do so . We believe no such obligation
exists, and that the Board in Hood was simply exer-
cising its discretion in reopening the record. We do
not intimate in any way that we think the exercise
of discretion in that case was improper . We do be-
lieve, however, that for the reasons stated above,
the more efficient approach is to leave questions
concerning the appropriateness of the remedy to
compliance proceedings.
Accordingly, we adopt the judge's recommended
Order, including the provisions for restoration of
the Respondent 's Hermansville operation and the
reinstatement of the laid-off unit employees, subject
to the condition that the Respondent may intro-
duce at compliance any evidence bearing on the
appropriateness of those portions of the remedy
that was not available prior to the hearing.34
ORDER
The National Labor Relations Board orders that
the Respondent , Lear Siegler, Inc., No-Sag Prod-
ucts Division , Hermansville , Michigan , its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Transferring operations and effectively termi-
nating employees by placing them on indefinite
layoff because of the employees' actions in pursu-
ing union affiliation for purposes of collective-bar-
gaining representation.
(b) Interfering with , restraining , or coercing its
employees in the exercise of rights guaranteed in
Section 7 of the Act by interrogating employees
about union support or union activities , by threat-
ening plant closings or loss of jobs, by preparing
and requiring employees to sign a document dis-
avowing their support for any union , by promising
benefits, by granting benefits including a pay raise
and removal of disciplinary warnings, by request-
ing the return of signed union authorization cards,
and by ordering the removal of union campaign
materials.
34 A finding at the compliance stage that restoration of the status quo
ante is not appropriate would not , of course, preclude make-whole relief
to the discnminatees or their reinstatement at one of the Respondent's
other facilities. See, e .g., Strawsine Mfg. Co., 280 NLRB 553 (1986).
We grant the General Counsel 's motion to strike from the Respond-
ent's brief all references to nonrecord evidence and all argument based on
such evidence
The General Counsel requests that the remedy include a visitatonal
clause authorizing the Board, for compliance purposes , to obtain discov-
ery from the Respondent under the Federal Rules of Civil Procedure
under the supervision of the United States court of appeals enforcing the
Board's Order. Under the circumstances of this case , we find it unneces-
sary to include such a clause , and we deny the General Counsel 's request.
Cherokee Marine Terminal, 287 NLRB 1080 (1988).
LEAR SIEGLER, INC.
(c) Bargaining directly and unilaterally with em-
ployees in regard to wages, working conditions,
and recall from layoff, without first notifying the
International Union, United Automobile, Aero-
space & Agricultural Implement Workers of Amer-
ica (UAW), AFL-CIO , and offering it a meaning-
ful opportunity to bargain over those subjects.
(d) In any other manner interfering with, re-
straining , or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Reestablish and resume production operations
at its Hermansville, Michigan facility in a manner
consistent with the level and manner of operation
that existed before the operation was closed on
June 27 , 1986; offer reinstatement to all employees
placed on indefinite layoff on that date who held
positions within the following bargaining unit:35
All production and maintenance employees of
the Respondent at its Hermansville , Michigan
location; but excluding office clerical employ-
ees, technical employees, professional employ-
ees, guards and supervisors as defined in the
Act;
make them whole for the losses they incurred as a
result of the discrimination against them, in the
manner specified in the remedy section of the
judge 's decision; remove from its files any refer-
ences to those unlawful layoffs; and notify the em-
ployees in writing that this has been done and that
the layoffs will not be used against them in any
way.
(b) 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.
(c) On request, recognize and bargain with the
Union as the exclusive collective -bargaining repre-
sentative of its employees in the bargaining unit set
forth above concerning terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreeement.
(d) Treat the initial year of union certification as
beginning on the date this Order is complied with.
(e) Mail to each employee in the appropriate bar-
gaining unit at his or her last known address and
95 The parties are free to introduce at the compliance stage of these
proceedings any evidence relevant to the appropriateness of the restora-
tion and reinstatement portions of this Order , provided that such evi-
dence was not available at the time of hearing on the unfair labor prac-
tices alleged and found herein.
863
cause to be published in a newspaper of general
circulation in Hermansville , Michigan, after being
duly signed by Respondent 's representative , copies
of the attached notice marked "Appendix."36
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
98 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."
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 transfer operations and effectively
terminate our employees by placing them on indefi-
nite layoff because of their actions in pursuing
union affiliation for purposes of collective-bargain-
ing representation.
WE WILL NOT interfere with , restrain , or coerce
our employees in the exercise of rights guaranteed
them in Section 7 of the Act by interrogating em-
ployees about union support or union activities, by
threatening plant closings or loss of jobs , by pre-
paring and requiring employees to sign a document
disavowing their support for any union, by promis-
ing benefits, by granting benefits including a pay
raise and removal of disciplinary warnings, by re-
questing the return of signed union authorization
cards, and by ordering the removal of union cam-
paign materials.
WE WILL NOT bargain directly and unilaterally
with employees in regard to wages, working condi-
tions, and recall from layoff without first notifying
the International Union, United Automobile, Aero-
space & Agricultural Implement Workers of Amer-
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ica (UAW), AFL-CIO, and affording it a meaning-
ful opportunity to bargain over those matters.
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 reestablish and resume production op-
erations at our Hermansville , Michigan facility in a
manner consistent with the level and manner of op-
eration that existed before the operation was closed
on June 27 , 1986; offer reinstatement to all employ-
ees placed on indefinite layoff by the transfer or
subcontracting of operations who held positions
within the following bargaining unit:
All production and maintenance employees at
our Hermansville, Michigan location; but ex-
cluding office clerical employees, technical
employees , professional employees , guards and
supervisors as defined in the Act;
make them whole for the losses they incurred as a
result of our discrimination against them, in the
manner specified in the remedy section of the
judge's decision; remove from our files any refer-
ence to their unlawful layoffs; and notify them in
writing that this has been done and that their lay-
offs will not be used against them in any way.
WE WILL, on request, recognize and bargain
with the Union as the exclusive collective-bargain-
ing representative of our employees in the bargain-
ing unit , and put in writing and sign any agreement
reached on terms and conditions of employment
for employees in the unit.
LEAR SIEGLER, INC., NO-SAG PROD-
UCTS DIVISION
Gerald McKinney, Esq., for the General Counsel.
Dan W. Chandler, Esq., of Detroit, Michigan , for the Re-
spondent.
Dennis C. Valkanoff, Esq., of Escanaba, Michigan, for
Les Brown Chair Company.
DECISION
STATEMENT OF THE CASE
RICHARD H . BEDDOW JR ., Administrative Law Judge.
This matter was heard in Escanaba , Michigan , on 12-15
January 1987. Subsequent to an extension of the filing
date, briefs were filed by the General Counsel and Re-
spondent . The proceeding is based on a charge filed 11
September 1986 ,1 as amended , by International Union,
United Automobile, Aerospace & Agricultural Imple-
ment Workers of America (UAW). The Regional Direc-
tor's complaint dated 29 October 1986, alleges that Re-
spondent , Lear Siegler, Inc., No-Sag Products Division,
a Delaware corporation , violated Section 8(a)(1) and (3)
' All following dates will be in 1986 unless otherwise indicated.
of the National Labor Relations Act at their Hermans-
ville, Michigan facility by interrogating employees re-
garding their union sympathies and reasons for desiring
union representation , preparing and requiring employees
to sign a document disclaiming their support for the
Union, threatening employees with closure of its Her-
mansville facility and loss of jobs, requesting employees
to seek the return of union authorization cards from the
Union, ordering employees to physically remove union
campaign materials , offering benefits , removing employ-
ee disciplinary warnings from personnel files, indefinitely
and discriminatorily laying off all its bargaining unit em-
ployees, and directly dealing with a laid-off employee by
offering recall to a new job description with an increase
in pay without prior notice to the Union or affording the
Union the opportunity to negotiate and bargain.
On a review of the entire record in this case and from
my observation of the witnesses and their demeanor, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in Defense contracting with
various offices and facilities throughout the United
States . Respondent was engaged in the manufacture, dis-
tribution , and sale of foam rubber products at a facility in
Hermansville , Michigan , between 1982 and June 1986. It
annually received goods valued in excess of $50,000 at its
Hermansville location from points outside Michigan and
it admits that at all times material it is, and has been, an
employer engaged in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act. It also admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent manufactures spring systems, components,
frames, mechanisms , and flexible foam at more than a
dozen facilities in the United States and Canada for use
by manufacturers of furniture and bedding. In July 1982
it began operating a facility at Hermansville where it cut
foam rubber into varying shapes for distribution and sale,
primarily to a nearby manufacturer and major customer,
Les Brown Chair Company. In February 1985 Respond-
ent merged the foam operations division into its No-Sag
Division under the responsibility of Division President
Allen Huttom.
Flexible polyurethane foam is manufactured at its pour
plant in West Chicago, Illinois, into bulk "buns" for fur-
ther cutting and fabrication into products for bedding
and furniture manufacturers . In 1985 Respondent 's prin-
cipal fabrication operation was at a plant in West Chica-
go, next to the pour plant, and at satellite plants in
Grand Prairie, Texas, Dubuque, Iowa, Milledgeville,
Georgia, and Hermansville , Michigan.
Excessive customer requirements at Hermansville have
been supplemented from the West Chicago facility. The
production capacity and customer requirement at Her-
mansville has been between 400 and 600 chairs per day.
Brown Chair, which is located approximately 900 feet
LEAR SIEGLER , INC. 865
from Respondent 's facility, planned to expand its produc-
tion to between 1000 and 1200 chairs a day, more than
Respondent could match at its Hermansville facility.
Brown Chair began construction of a new building in
April 1986. It was completed and began operating the
second week in July, following a 1-week vacation shut-
down . Subsequent 1986 production increased from 600
chairs a day to over 1000.
Respondent 's existing operations were housed in a
leased , older wooden structure, that essentially was un-
suitable for expansion or modernization . In February
1986, Brown Chair proposed that it construct a new fa-
cility, part of which would be leased to Respondent for
manufacturing and part of which was to be used by
Brown Chair for warehousing of its finished goods. Re-
spondent and Brown Chair then discussed a plan for Re-
spondent to build a new facility capable of handing the
expected production increase . This proposed new facility
was to be erected on property owned by Brown Chair
and financed through Economic Development Corpora-
tion funding.
On 23 April, subsequent to the parties reaching a ten-
tative agreement , Brown Chair wrote Hutton, with con-
firming details that included an estimated cost of
$300,000, covered by a 10-year , $3965-a-month lease pay-
ment by Respondent , with construction expected to
begin in September . In discussions on 27 and 28 May,
Respondent indicated it would not commit to a 10-year
lease unless the lease could be terminated by Respondent
if Brown went out of business or purchased foam from
another supplier . Brown indicated it required an uncon-
ditional commitment for business reasons and to meet
private banking requirements . It also proposed that it
would agree to continue to purchase foam from Re-
spondent conditioned on price and quality being satisfac-
tory, in its sole discretion . In a subsequent letter Brown
indicated the long and beneficial relationship enjoyed be-
tween the companies , and restated and amended the pro-
posals discussed on 6 June and 11 June, that Respondent
be the sole supplier , absent material changes, as long as
price and quality remain competitive, subject to an arbi-
tration clause.
Respondent 's witnesses testified that prior to 18 June it
had not decided on its course of action ; however, on 19
June, subsequent to his meeting with employees, Re-
spondent's director of manufacturing , Joseph Progar, no-
tified Brown Chair verbally that it wished to transfer
fabrication to its West Chicago plant . President Brown
testified that he was not sure that Progar said that lease
negotiations were off but he "presumed" that the discus-
sions were "dead" when Respondent announced its plans
to change the location of its fabrication operation.
Brown also testified that in early June he was aware of
the ongoing union organization at Respondent 's plant
and that he did not believe that any definitive statement
was made on 19 June by either party that the proposed
lease arrangement was no longer possible . Subsequently,
in 1987 Brown specifically told Respondent that the lease
plan was no longer viable.
In May, contemporaneously with the latter stages of
the plant lease negotiations, Respondent's employees
began discussing their feelings concerning a need for
union representation . On 11 June, five of Respondent's
eight full -time employees met with union organizer
Gerald LaFave , the Union notified Respondent of its or-
ganizing campaign . The letter was received by Respond-
ent during the morning of 13 June . That same date,
about 3:25 p .m., John Lang, Respondent 's facility manag-
er, approached employee Daniel LaFave as he was
working and asked if he was related to anyone associated
with the Union, and if he (Lang ) had said or done some-
thing to bring on the union campaign . That same after-
noon Lang also approached employee Larry Bellmore in
the warehouse area, asked Bellmore if he thought the
"Union deal" was "going to go through ," and asked if it
would do any good if Progar spoke to the employees.
On or about 15 June while on a fishing trip, Lang initiat-
ed a conversation with employee Steve LaFave2 by
asking how he "thought the Union was going to go."
Steve replied that there were a lot of unhappy people
and that it would go.
On 16 June Daniel LaFave wore a union cap to work
and distributed union buttons , T-shirts, and bumper stick-
ers to other employees . On 18 June, LaFave was ap-
proached by Lang in the plant and was asked why the
employees wanted a union and where he had gotten the
union materials . LaFave responded that he did not have
to answer and Lang walked away.
On 19 June, Progar, whose office is located at Re-
spondent's West Chicago facility, came to the Hermans-
ville plant and held a meeting with all the full-time em-
ployees . Manager Lang and a supervisor , Barbara
Malone, were also present . Several employees testified
that Progar began the meeting by asking "What seems to
be the problem here, why are you going for outside
help?" When there was no response , Progar then said if
an agreement was not reached they would close the
plant. Daniel LaFave asked how long that would take
and Progar replied, "We will shut the doors tomorrow."
Steve LaFave testified that Progar also said that Brown
Chair wanted nothing to do with a union supplier and
that Brown had canceled an agreement with Respondent
to build and lease a building to Respondent because of
the employees ' union organizing activities. He also testi-
fied that Progar said that as of that time all part-time and
probationary employees were fired and that if they could
not come to some sort of agreement regarding the
Union , the rest would also be without jobs.
The employees then asked that the supervisors leave
so they could meet among themselves . The employees
testified to the effect that they had been caught by sur-
prise, they were being forced into making some kind of
decision , and they believed that from what Progar said
that if they did not back down on the Union , they would
lose their jobs . The majority decided to agree to discon-
tinue union organizing efforts in exchange for a letter
stating they could retain their jobs as well as an agree-
ment that Respondent would begin a piecework compen-
sation system and would revoke two disciplinary warn-
2 Employee Daniel LaFave is the nephew of union organizer Gerald
LaFave; however, Steve LaFave is not related to either person.
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ings (considered unjustified ) that had been given to
Daniel LaFave.
Progar returned to the gathering and was asked if he
would agree to sign a letter stating there would be no
retaliation against the employees because of their union
drive . Progar agreed but said something to the effect
that "it would still be in the hands of Brown Chair."
Progar dictated a "no-retaliation letter" and it was typed
by Supervisor Malone . After it was signed , Progar said
that inasmuch as he had signed , the employees should
agree to sign a letter stating they would not seek outside
representation . Steve LaFave recalls Progar saying that
he needed something in writing to show Brown Chair
regarding the union organizing . Sandra Pohl testified
that either she or another employee asked Progar if it
would be alright or if it would help if they wrote a letter
to Bob Brown saying they were not for the Union. She
further testified Progar responded that it would be a
good idea and that if the employees would spread it
around to Brown 's workers that the Union was just a big
rumor it would get back to Bob Brown . Progar then dic-
tated a letter stating "We , the undersigned do not wish
to seek outside representation to alleviate any problems
we have or may encounter." The letter was passed to the
employees and four signed . After James Malone and
Daniel LaFave initially refused to sign , Progar told them
that they were not cooperating and said , "I thought we
had come to an agreement. . . . no one is forcing you to
stay here . If you don' t sign, I will have to take some
kind of action ." Progar placed the letter next to Daniel
LaFave and both employes signed . Daniel LaFave testi-
fied he signed because "I was afraid of being fired."
Progar then sent for LaFave's personnel file, reviewed
his disciplinary warnings , and tore them up. Progar then
addressed the employees' request for a piecework system
and promised that he would have it in place by Septem-
ber.
Progar then told the employees to remove all the
UAW bumper stickers from their vehicles and not to
wear any UAW materials in the plant anymore . He told
Daniel LaFave to immediately remove his union cap,
told Steve LaFave to remove the union sticker from his
thermos bottle, and told all the employees to remove
union buttons and T-shirts and dispose of all such union
paraphernalia. Progar added that he did not want Brown
seeing Respondent's employees wearing or displaying
union paraphernalia . Progar then said he would provide
free "Lear Siegler" hats and beer can coolers to all em-
ployees . After being asked why Daniel LaFave had not
received an October 1985 promised wage increase of 5
cents per hour, Progar stated he did not recall such a
promise, but that effective immediately , LaFave would
receive the increase . In response to their complaints that
pay was too low, Progar also promised he would "work
on wages ." In response to a question about possible com-
pany discounts employees had heard rumors about,
Progar admitted Respondent had employee discounts at
its other factory locations and said that as soon as he re-
turned to Chicago he would supply them with the cata-
log of discount items.
After leaving the meeting with employees, Progar im-
mediately went to Brown Chair and met with Bob
Brown . Progar testified that at that time the decision to
move fabrication to Chicago had already been made but
that he wanted to inform Brown of the decision and gain
his approval of the plan. Progar also testified that he be-
lieved that during the conversation he showed Brown
the signed letter wherein the employees had renounced
their union organization effort.
On 20 June the Union sent a letter notifying Respond-
ent that it had filed a representation petition and that it
was willing to prove its majority status through signed
union authorization cards . On the day it was received by
Respondent , 23 June, Supervisor Lang went to Daniel
LaFave in the warehouse and asked if he could get the
union authorization cards back . When LaFave declined,
Lang asked LaFave if he was still for the Union and
LaFave answered yes. Lang then said he would call
Progar and that LaFave might be out of a job by the end
of the week.
By letter dated Friday, 27 June, the last regular work-
day prior to its annual 1-week shutdown (sent with the
employeees ' regular paycheck), Progar advised each of
the employees that:
Due to changing business conditions we are ex-
tending the normal shutdown indefinitely . There-
fore, do not report back to work on Monday, July
7, 1986.
We will contact you by telephone or mail on
your return date . In the meantime you are on indefi-
nite layoff.
Respondent ceased regular production operation at
Hermansville on 27 June, however, it retained a ware-
housing operation unloading , storing, loading , and trans-
ferring fabricated products supplied principally to Brown
Chair . Most of the necessary production equipment re-
mained at Hermansville . On 23 June Respondent con-
tracted with Meyers Motor Transportation Co., for per-
formance of the loading and unloading services at Her-
mansville, work which was formerly performed by some
of those employees indefinitely laid off on 27 June. Prior
to this subcontracting, Meyers was only used for making
foam product deliveries.
The Board conducted an election on 22 July, and, on
30 July, the Union was certified as the exclusive collec-
tive-bargaining representative for:
All production and maintenance employees at its
Hermansville, Michigan location; but excluding
office clerical employees , technical employees, pro-
fessional employees , guards and supervisors as de-
fined in the Act.
Subsequently , at Progar 's directive, Supervisor Malone
telephoned employee Jalaine Whitens on or about July
31 and offered her recall to work with a new job de-
scription and an increase in pay . No notice or opportuni-
ty was given the Union to allow bargaining regarding
her reinstatement and rate of pay. Whitens continued to
perform bargaining unit work using saws to cut foam
and unloading trucks as well as performing new func-
tions involving order processing and recordkeeping.
LEAR SIEGLER, INC. 867
Three other persons (employed by Meyers), who gener-
ally each worked 15 to 20 hours a week, performed the
warehousing work that was performed prior to the layoff
by Whitens and former employee Larry Belmore. One of
the Meyers employees, Priscilla Schuette, began work
immediately after the layoff. She testified that she works
approximately 4 to 5 days a week and that her boss is
Malone , Respondent's supervisor.
As noted, the Union subsequently filed a charge with
the Board and, on 16 December, the Regional Director
also sought 10(j) injunctive relief in a district court.
By order dated 18 March 1987, the District Court for
the Western District of Michigan in Case No. M86-306
CA2 granted a preliminary injunction. At the request of
the General Counsel, of 27 March 1987, I find good
cause and reopen the record and receive into evidence as
General Counsel's Exhibit 20 the opinion and order of
the court granting the preliminary injunction.'
III. DISCUSSION
The issues in this case arose from the events surround-
ing a union organizational drive at Respondent's Her-
mansville production and distribution facility during May
and June 1986. Coincidentally, this occurred at the same
time Respondent was engaged in negotiations with its
principal customer at Hermansville to expand production
and build or lease a new facility. It is clear that this cus-
tomer, Brown Chair, was aware of the union activity
and had expressed some unclear degree of concern and
that, otherwise, negotiations were close to being finalized
into an agreement.
Respondent reacted to the employees' organizational
activity with a prompt series of actions, including em-
ployee interrogations and threats of plant closure and
loss of job while, at the same time, it abandoned its at-
tempt to resolve the plant lease situation with Brown
Chair. Instead , it substituted a plan that would transfer
fabrication to its West Chicago facility and allow it to
"indefinitely lay off" the troublesome Hermansville pro-
duction employees. Then, after the laid-off employees
voted in favor of the Union, and after the Union was
certified as their bargaining representative, Respondent
directly recalled one unit employee, under different con-
9 By pleading dated 4 June 1987 , Respondent objects to the relief re-
quested by the General Counsel, however, I find that its argument fails to
state any proper basis for the rejection of a document that reflects the
public "decision" of a Federal court and I affirm my decision that Exh.
20 is clearly admissible . Respondent also moves for receipt in evidence a
copy of the transcript dated 13 February 1987 in the proceeding before
the U.S. district court, as well as a copy of Respondent 's proposed in-
junction , which apparently were filed in that proceeding at the court's
request , with attachments embracing two affidavits dated 25 February
1987.
It is apparent that Respondent wishes these proposed exhibits to be re-
ceived for purposes concerning the truth of "evidentiary " matters pre-
sented before the district court Clearly, this is beyond the scope of
proper relevance or admissibility before this administrative court. More-
over, no attempt is made to offer good cause as to the relevance of the
evidence or why the record should be reopened to allow admission of
what appears to be either further argument, evidence available at the
time of the hearing, or evidence of factual events occurring subsequent to
the hearing . Furthermore , good cause is not shown to mitigate the un-
timely nature of Respondent 's request, over 2- 1/2 months after the dis-
trict court's related decision and, accordingly, Respondent 's motion for
receipt into evidence of late-filed Exhs. 36 and 37 is denied.
ditions of work and pay, without contacting or negotiat-
ing with the Union.
It is well established that direct dealings with employ-
ees undermine a union's status as exclusive representative
and inhibits parties from negotiating a collective-bargain-
ing agreement, Tralas Meat Co., 239 NLRB 1400 (1979).
Here, Respondent is shown to have collective-bargaining
agreements at some of its other facilities and it is no
novice in the area of labor-management relations and re-
sponsibilities. Accordingly, I find that by its direct deal-
ings with an employee, after a plantwide layoff and the
following certification of the Union, Respondent is
shown to have engaged in an action which clearly
chilled the prospects for fruitful bargaining with the em-
ployees' representative and I conclude it is shown to
have violated Section 8(a)(1) and (5) of the Act in this
respect, as alleged.
Respondent otherwise defends its decision to close its
Hermansville facility as permissible conduct based on le-
gitimate business reasons consistent with the decision of
the Supreme Court in Textile Workers v. Darlington, 380
U.S. 263 (1965).
A. Evidentiary Matters
After counsel for Respondent concluded his cross-ex-
amination of the General Counsel's witness, Daniel
LaFave, the court allowed Respondent to immediately
proceed to examine the witness as his own. Under Re-
spondent's direct examination, LaFave was asked if he
had said anything to the Union after Respondent's meet-
ing with employees on 19 June. LaFave replied that he
went to the union office, told union representative
Gerald LaFave what had happened and, at Gerald's sug-
gestion, prepared handwritten notes of what had oc-
curred in the meeting earlier that same day. LaFave left
the statement with the Union and, prior to his testimony,
the Board had no knowledge of its existence.
On Respondent's request, the Union searched its case
file (which it had brought to the hearing), found La-
Fave's statement, and turned it over to Respondent. Re-
spondent directed several questions to LaFave relevant
to the preparation and contents of the statement. On con-
clusion of Respondent's direct examination the General
Counsel sought to introduce the statement into the
record. Respondent objected to its admission, claiming it
to be hearsay. The court deferred ruling and requested
that the parties address the matter in their briefs.
General Counsel contends that the statement is not
hearsay and should be admitted as corroborative evi-
dence, citing Rule 801(d) of the Federal Rules of Evi-
dence which states:
(d) STATEMENTS WHICH ARE NOT HEAR-
SAY. A statement is not hearsay if-
(1) PRIOR STATEMENT BY WITNESS.-The
declarant testifies at the trial or hearing and is sub-
ject to cross-examination concerning the statement,
and the statement is . . . (B) consistent with his tes-
timony and is offered to rebut an express or implied
charge against him of recent fabrication or improp-
er influence or motive . . . .
868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As pointed out by the General Counsel , Respondent's
counsel stated to the court in the midst of his cross-ex-
amination of Daniel LaFave , "We don 't take it [direct
testimony] as correct . We don 't believe the truth was
said ." Counsel thereby implied recent fabrication by the
witness . Inasmuch as the statement is consistent with La-
Fave's prior oral testimony and it rebuts the express or
implied claim of recent fabrication , the statement consti-
tutes proper nonhearsay evidence under Rule 801(d)(1)
and I conclude that it is admissible as offered by the
General Counsel. It is noted that the document was pro-
duced at the request of the Respondent , and Respondent
exercised an opportunity to directly examine the witness
shortly after existence of the document was brought to
light . The contents of the document are consistent with
and corroborate the witnesses testimony , the truthfulness
of which was questioned by the Respondent , and the
document rebuts Respondent 's allegation of untruthful-
ness . Admission of the document otherwise is not shown
to be prejudicial to Respondent 's rights and , accordingly,
I receive General Counsel 's Exhibit 17 into the record.
B. Alleged 8(a)(1) Violations
The record persuasively shows that immediately after
the Respondent was notified by the Union of the orga-
nizing campaign on 13 June, Plant Manager Lang, on
separate occasions , questioned at least three employees
about whether they thought the union organization
would go through . On 16 June , Lang (who was not
called as a witness) asked one of these same employees
why he would want a union and where he had gotten
union materials that he was wearing . The initial ques-
tions, standing alone, do not appear to be so overbearing
as to obviously tend to restrain, coerce, or interfere with
employee rights guaranteed by the Act, see Rossmore
House, 269 NLRB 1176 ( 1984), the latter question, how-
ever, was the second inquiry made of Daniel LaFave
(who also was asked about his relationship to union orga-
nizer Gerald LaFave), it concerned where he had ob-
tained union materials and it invoked the fearful response
from the employee that "he did not have to tell ." Under
the circumstances , including the management 's subse-
quent conduct in the 19 June meeting, I conclude that
the latter inquiry goes beyond the scope of casual ques-
tioning concerning a subject of general interest in the
plant and tends to be coercive and in violation of Section
8(a)(1) of the Act as alleged . Certainly, the cumulative
coercive effect on LaFave which interfered with his
rights to pursue organizational activity as shown by his
subsequent submissions to Respondent 's pressure to dis-
avow their organizing attempt and as especially shown
by Progar 's threat to LaFave when he hesitated before
signing the employees ' letter revoking their support for
any "outside" representation.
The principal setting for the alleged threats of plant
closure and loss of jobs was the meeting on 19 June be-
tween Director of Manufacturing Progar and the em-
ployees . On brief, Respondent contends that because of
alleged inconsistencies in the testimony of the several
employee witnesses regarding this event , such testimony
is inherently unreliable . Respondent also maintains that
the witnesses were struggling to recall testimony they
had "gone over" in the preparation for trial.
My observation of the several employee witnesses and
my evaluation of their demeanor and testimony leads me
to conclude that it is Respondent 's argument that is in-
consistent . Thus, I find that the employees' testimony
displays the normal and nominal variances of independ-
ent recall as contrasted with the sameness associated in
the implied fabrication of "gone over" testimony sug-
gested by Respondent . In substance , I find the testimony
of the General Counsel 's witnesses to be credible and I
find that the series of events occurred at the meeting, as
described herein, including the alleged comments made
by Progar , to be a fair and accurate description of what
took place . Although Progar 's own testimony , made in
response to leading questions by Respondent 's own coun-
sel, contains certain direct denials that he made threats to
shut down the facility , no corroboration was offered by
Respondent through the testimony of other supervisors
who were present, including Malone, who testified but
was asked essentially about other events or Lang, who
was not called . Moreover, Progar's demonstrated duplic-
ity in securing a disavowel statement from the employees
at a time when he admittedly knew he was going to
move the fabrication operation reflects adversely on his
truthfulness and the credibility of his testimony.
Based on the credible testimony of the several employ-
ees, I find that at a lengthy meeting on 19 June with all
employees , Director of Manufacturing Progar, while im-
plying that the union activities had created problems
with Respondent's principal customer , emphatically pre-
sented the employees with the threats that the plant
would close, possibly as soon as the next day. He an-
nounced the firing of the two part-time employees and
said that unless some sort of agreement was reached re-
garding the Union , the rest of the employees would be
without jobs . Then, after two employees balked at sign-
ing the company -prepared union disavowel agreement,
Progar said, "if you don 't sign , I will have to take some
sort of action ," a statement that the employees believed
meant that they would be fired.
It is well established that an employer may not threat-
en to close a plant or terminate employees because of
union activities , Penn Color, Inc., 261 NLRB 395, 405
(1982). Here, Progar 's statements , as well as the unrebut-
ted subsequent statement of Plant Manager Lang on 23
June that he would call Progar and the employee "might
be out of a job by the end of the week," because he had
responded "yes" to Lang's inquiry if he still supported
the Union , infringe on the employees Section 7 rights
and, accordingly , I conclude that Respondent is shown
to have violated Section 8(a)(1) of the Act in this re-
spect , as alleged.
The same meeting discussed above also included other
verbal conduct by Respondent whereby it agreed to
revoke disciplinary actions, granted a pay raise, and
promised to pursue the granting of other benefits, all
done in exchange for the employees ' agreement to re-
nounce union representation . The employees were in-
structed to denounce the union campaign as "rumors"
when speaking with the employees of the Respondent's
LEAR SIEGLER, INC. 869
nonunionized customer , Brown , and to remove and dis-
pose of all union paraphernalia . These actions , as well as
Respondent 's dictation and physical preparation of the
union disavowal statement signed by the employees; its
effective conditioning the employees ' future employment
on their written promise to abandon their union activi-
ties; and its subsequent 23 June request that employee
Daniel LaFave get the employees ' authorization cards
back from the Union , also infringe on the employees
Section 7 rights, see Statler Industries , 244 NLRB 144,
150 (1979), and Fimco, Inc., 282 NLRB 653 (1987), and,
accordingly , I conclude that the General Counsel has
shown such actions violate Section 8(a)(1) of the Act, as
alleged.
C. Layoff and Relocation of Work as an Alleged
8(a)(3) Violation
The principal thrust of the General Counsel 's argu-
ment, as well as Respondent 's defense , is directed at the
allegation that the closing of production operations at the
Hermansville facility, indefinite layoff of all employees
and relocation of production to Respondent 's West Chi-
cago facility was a discriminatory, illegal action in viola-
tion of Section 8(a)(3) of the Act.
Here, I find that the General Counsel has met his ini-
tial burden on a issue of this nature by presenting suffi-
cient evidence to support an inference that the motivat-
ing factor behind Respondent 's plant closure was the
Union's recent organizing activity.
After 13 June, when Respondent received notification
of the Union's organizational drive, it immediately began
questioning employees and, by 16 June, the circum-
stances surrounding these questions had become coercive
and violative of employee rights . This initial response
was quickly followed up with the 19 June visit by Direc-
tor of Manufacturing Progar who, through threats of
plant closure and loss of jobs , effectively intimidated the
employees into signing a statement disavowing their
union support . These threats were directly identified as
caused by the employees ' support for union representa-
tion and they provide ample evidence to establish a
prima facie showing that Respondent 's plant closure was
unlawfully motivated , see Dorothy Shamrock Coal Co.,
279 NLRB 1298 ( 1986).
Accordingly , the record will be evaluated in keeping
with the criteria set forth in Wright Line , 251 NLRB
1083 (1980); see also NLRB v. Transportation Manage-
ment Corp ., 462 U .S. 393 (1983), to consider Respond-
ent's defense and, in the light thereof, whether the Gen-
eral Counsel has carried his overall burden.
Respondent , citing Darlington , supra, argues that an
employer is entitled to terminate its business for any
reason he pleases, including antiunion reasons, and that
as pertinent here, this right is limited only with respect
to partial closings where it is established that (1) the
closing is motivated by a purpose to chill unionism in
any of the remaining plants of the employer and (2) the
employer may reasonably have foreseen that such clos-
ing would likely have that effect.
Respondent contends that the Darlington factors are
not present here and that Progar's conduct at the 19
June meeting with employees merely shows that Re-
spondent was concerned that the union drive would
cause it to lose contracts and result in financial ruin. It
further argues that the failed lease negotiations between
Respondent and its customer shows that the closure was
not due to union activity but would have occurred
anyway.
As noted , the employees ' organizational drive coincid-
ed with a critical period in Respondent 's negotiations
with Brown Chair over proposals to construct a produc-
tion and warehousing facility to provide foam products
to meet the customers anticipated increased demand for
materials . As late as Tuesday , 11 June, the parties dis-
cussed terms of the lease proposal and anticipated final
amendments were prepared in written form , and mailed
from Brown Chair to Respondent . It also is established
that Brown Chair became aware of the union drive
shortly thereafter and that Respondent was aware of
Brown Chair's knowledge.
Division President Hutton testified that he had a busi-
ness meeting with Progar and two other high-ranking
company officials on 18 June . Hutton admitted that he
personally visited Bob Brown on two occasions in May
and June and that he was aware that Bob Brown knew
about the union campaign. He also admitted that on 18
June he discussed the union campaign with members of
his staff, including Lang and Progar and two other per-
sons. He alleges that they discussed whether the union
campaign had an impact on "what" they were planning
to do and decided that it did not . He also stated that
Progar did not have singular authority to close the Her-
mansville facility . On redirect examination by Respond-
ent's counsel , Hutton denied he had lunch with Progar
on the 18th but admitted that he had met with him. He
also testified that Lang had informed him about the
Union on 5 May . This would indicate that Lang (who
otherwise is shown to have engaged in social activity
with employees) was aware of the employees initial dis-
cussions of the possibilities of a union , even prior to the
time they had contacted any union representative.
Hutton also testified extensively about the Company's
involvement in consolidation of plants and activities,
conversion of some facilities to distribution centers, and
the installation of more modern and productive machin-
ery at remaining production facilities , including West
Chicago . He also said that the Hermansville fabrication
work was moved to West Chicago to optimize utilization
of assets and not because there was not enough work in
West Chicago.
A review of the overall sequence of events presented
here leads me to conclude that Respondent would not
have indefinitely stopped fabrication at Hermansville and
indefinitely laid off its employees on 27 June, if it had
not been for the employees ' attempt to seek union recog-
nition.
President Hutton was careful not to offer explanatory
testimony relative to the full scope of Respondent's dis-
cussions concerning the lease with Brown Chair,
Brown's concern over the Union , and his decision to
move fabrication to West Chicago and the timing there-
of. As Progar testified , no decision was made prior to 18
June, however , Brown was notified of the relocation
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
plan on the 19th. Although Hutton testified that the
union campaign had no "impact" on what they planned
to do, it is clear that they discussed the union situation
on the 18th. The record clearly supports the inference
that Respondent decided to at least "defer" the leasing
plan to construct new and expanded fabrication facilities.
Contrary to the Respondent 's suggestion that negotiation
with Brown Chair had reached an impasse , I find that as
late as 11 June both sides expected to reach a meeting of
the minds and I further find that no insurmountable dif-
ferences are shown to exist that would have precluded
the signing of a formal agreement.
The one significant intervening event that could have
precipitated Respondent 's decision was the formal notice
to the Company, received on 13 June, Friday, that a
union campaign was underway . Respondent immediately
reacted with a discussion of the Union during a high-
level staff meeting on Tuesday, 18 June . This was fol-
lowed by Progar's coercive meeting with , and his intimi-
dation of, employees on the 19th . Progar then sought
Brown 's approval of a plan to utilize another facility to
fabricate Respondent 's Hermansville product. Brown tes-
tified that Progar did not say at that time that the lease
negotiations were no longer viable and he stated that no
definite statement to that effect was conveyed until early
1987. On Monday , 23 June, Respondent received the
Union 's notification that it had a majority of authoriza-
tion cards and had filed a representation petition. The
same day Respondent entered into subcontracting agree-
ment with a transportation company for the performance
of warehousing and distribution functions at Hermans-
ville. On Friday , 27 June, it mailed letters notifying em-
ployees not to return to work after the previously sched-
uled, annual 1-week shutdown . The representational elec-
tion was held on 22 July and, without objection to the
election by Respondent , the Union was certified on 30
July. Respondent then recalled a unit member, it other-
wise expanded the number of subcontract workers, and it
continued to supply Brown Chair 's expanding material
needs with products fabricated in West Chicago and
warehouse at the Hermansville facility . Significantly, the
production equipment remained at Hermansville.
Under these circumstances , I find that Respondent
made two related decisions : first, to temporarily transfer
the fabrication operation , indefinitely lay off employees,
and suspend lease negotiations and, after 30 July, to per-
manently adopt the transfer and layoff as modified by an
increase in warehouse and distribution personnel. Re-
spondent 's decisions were motivated by the animus gen-
erated by the union campaign and the Union 's success in
the election.
As pointed out by the General Counsel, the precipi-
tous timing of Respondent 's actions , including the attend-
ant unfair labor practices discussed in this decision, dis-
prove Respondent 's asserted economic motivation. The
pretextual nature of its defense is demonstrated by the
revelation of Respondent 's vice president, Robert
Graves, who testified that since 1981, when two other fa-
cilities were converted to distribution centers, the aver-
age time between reaching a decision and making the
conversation took approximately 5 months . Here, the
time between the decision and implementation at Her-
mansville was only 9 days, if made on 18 June as claimed
by Respondent, or 4 days if actually finalized after the
employees ' signing of a disavowal statement was fol-
lowed by receipt of the Union's letter which stated that
the Union had filed a representation petition based on a
majority of authorization cards.
Turning to Respondent 's reliance on Darlington , supra,
the General Counsel also argues that Respondent did not
actually close a distinct portion of its business operations.
Here I find that its facility continued with bargaining
unit work previously performed by laid-off workers by
using both its own employee (recalled employee Whitens
who also performed occasional subsequent fabrication
work), and subcontracted warehouse workers. Moreover,
the record shows facts on which to base a fair inference
that a partial closing was motivated by an intention to
chill unionism , with affirmative Lithograph Co., 204
NLRB 431 (1973). Here, the record shows that Jalaine
Whitens was recalled to work and that she is the girl-
friend of laid-off employee Larry Bellmore, who regular-
ly visits the Hermansville facility . All the employees
there, including those working for the subcontractor
who now do his job, see him and he them, and thereby
present the chilling lesson that engaging in unionism at
Respondent 's Hermansville facility can result in the loss
of your job . Respondent 's West Chicago employees are
not free from chill as Progar testified he told the hourly
employees in West Chicago of the closing of the Her-
mansville production operations . The fact that the West
Chicago employees currently have union representation
does not negate such an inference , George Lithograph,
supra, and it may be reasonably foreseen that the em-
ployees' knowledge of Respondent 's action would likely
have a chilling, inhibiting effect on future labor-manage-
ment negotiations.
Here, Respondent 's prompt transfer of production, its
sudden break off of viable lease negotiations with its
principal customer, its quick decision (compared to simi-
lar past occurrences) to immediately convert the plant to
a distribution center, and , of course , Respondent's pat-
tern of illegal interference with its employees' Section 7
rights, shortly after they began to exercise those rights in
their brief organizational campaign, all demonstrate the
pretextual nature of Respondent 's defense . Accordingly,
I find that Respondent has failed to meet its burden of
showing that the closure of its Hermansville production
facility and transfer of operations to West Chicago was
not primarily motivated by the illegal and discriminatory
reasons demonstrated by the General Counsel . Specifical-
ly, I find that Respondent would not have closed its Her-
mansville production operations on 27 June, and subse-
quently reaffirmed that decision after the election, were
it not for the employees union campaign, their selection
of the Union as their bargaining representative, and the
subsequent certification of the Union on 30 June, and I
conclude that the General Counsel has met his overall
burden and shown that Respondent violated Section
8(a)(3) of the Act in this respect, as alleged . See Mid-
land-Ross Corp. v. NLRB, 617 F.2d 977 (1980), and Hood
Industries, 248 NLRB 597 (1980).
LEAR SIEGLER, INC. 871
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By closing (or partially closing) its Hermansville
plant production operations on 27 June 1986, subcon-
tracting the plant's warehousing functions , and placing
all its full-time production and warehousing employees
on indefinite layoff because of the employees ' actions in
pursuing the union affiliation for purposes of collective-
bargaining representation , Respondent violated Section
8(a)(3) and (1) of the Act.
4. By threatening to close its Hermansville operations,
by interrogating employees about union support or union
activities , by threatening loss of jobs, by preparing and
requiring employees to sign a document disavowing their
support for the Union, by promising benefits , by granting
benefits including a signed union authorization card, and
by ordering the removal of union campaign materials,
Respondent has interfered with, restrained , and coerced
its employees in the exercise of their rights guaranteed in
Section 7 of the Act and thereby engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act.
5. By bargaining directly and unilaterally with employ-
ees in regard to wages and conditions of recall from
layoff, Respondent violated Section 8(a)(1) and (5) of the
Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Inasmuch as I found that Respondent violated the Act
by terminating its bargaining unit employees through its
indefinite layoff and discriminatory closing of its Her-
mansville production facility, I find it necessary to order
that Respondent be required to reopen and reestablish its
Hermansville operation in order to restore the status quo
ante existing prior to its commission of unfair labor prac-
tices . The Board has long held that restoration as nearly
as possible of the situation that would have prevailed,
but for the unfair labor practice , is prima facie appropri-
ate and that the burden rests with Respondent to demon-
strate that it is not appropriate , see R & H Masonry
Supply, 238 NLRB 1044 (1978), Rebel Coal Co., 259
NLRB 258 (1981).
Respondent is part of an extremely large company
with plant locations both within and without the United
States, and is not an entity or corporation separate from
Lear Siegler, Inc. There is no showing actual financial
conditions and the balance of hardships for purposes of
restoration clearly favor the laid-off employees. At the
time the record was closed , the production equipment re-
mained at Hermansville; trucks regularly delivered foam
to Hermansville ; the loading and unloading of trucks in
Hermansville was being done by nonunion subcontracted
employees; and as testified to by Respondent, the only
thing needed to start up production again was bulk foam
and the laid-off employees . Respondent suggest that the
Board could fashion an adequate alternative remedy
through the offer of employment at the relocated facility,
a preferential hiring list, payment of transportation or
moving expenses , or payment of backpay for a limited
time period . Respondent 's late-filed Exhibits 36 and 37
(see fn . 2) which were not received , allege facts relative
to a subsequent loss of all of Brown Chair's business and
the February 1987 closing of the warehousing and distri-
bution functions at Hermansville . By pleadings dated 9
June, received by the Division of Judges on 15 June, Re-
spondent moves for the reopening of the record and the
receipt of tendered Respondent 's Exhibits 38 through 57.
These exhibits relate to events following the hearing that
occurred at Brown Chair and at Respondent 's Hermans-
ville, West Chicago, and a new Indiana facility. It is
noted that part of the information offered refutes infor-
mation offered in rejected Exhibits 36 and 37 (i.e., it
would show that Respondent still had sales to Brown
Chair in May 1987 and did not completely close down
Hermansville until June 1987.
By pleading dated 19 June the General Counsel op-
poses granting of the relief requested.
In addition to apparent questions concerning the reli-
ability of the information offered , it is clear that the ex-
hibits are not relevant and material to the merits of the
decision here . To the extent that such information could
be relevant to the appropriateness of the remedy re-
quired , I find that an adequate opportunity will exist
during the compliance stage of this proceeding for a
more appropriate consideration of the limits and terms of
the remedial actions necessary to establish the status quo
ante and to remedy the loss incurred by employees as a
result of Respondent 's actions. Moreover , the opportuni-
ty also exist for the negotiation of an appropriate settle-
ment at any posthearing stage of this proceeding. Ac-
cordingly , I deny Respondent 's motion to reopen the
record and I reject Respondent 's late-tendered Exhibits
38 through 57.
While it appears that subsequent events have occurred
which might show that the continuation of business at
Hermansville, after reestablishment , would be unduly
burdensome , it is equally possible that Respondent could
negotiate the renewal of customer contracts or gain pos-
sible new business . Thus, it would be premature at this
time to conclusively foretell that the reestablishment
remedy is unworkable or inappropriate . Therefore, the
details of a final solution must be left to the compliance
stage of this proceeding or to subsequent appropriate ne-
gotiations by the parties.
Returning to the remedy to be required here, I find
that Respondent must accept the responsibility for its il-
legally motivated and apparently precipitous actions in
withdrawing from the lease negotiation with its customer
and whatever subsequent loss of business ultimately may
have occurred. As a basic preliminary remedial action, it
is necessary that Respondent should be required to effect
the reestablishment of its Hermansville production and
distribution facility . It shall also be required to reinstate
the various production and warehouse bargaining unit
members, put out of work by the plant closure, to their
former positions and they shall be made whole for loss of
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pay and other benefits , in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as comput-
ed in New Horizons for the Retarded, 283 NLRB 1173
(1987). It also shall expunge from its files any reference
to their termination and notify them in writing that it has
been done and that evidence of such unlawful action will
not be used as a basis for further action against them. See
Sterling Sugars, 261 NLRB 472 (1982).
In view of the fact that the plant was closed before ap-
propriate bargaining occurred with the newly certified
Union and in order to ensure that the employees will be
accorded the statutorily prescribed services of their se-
lected bargaining agent for the period provided by law, I
also recommend that the initial year of certification begin
on the date that Respondent complies wtih the Order set
forth below , see R & H Masonry , supra . Otherwise, be-
cause of the serious nature of Respondent 's violations
and its overall display of a general disregard for the em-
ployees' fundamental rights, I find it necessary to issue a
broad order, requiring Respondent to cease and desist
from infringing in any other manner on rights guaranteed
employees by Section 7 of the Act. See Hickmott Foods,
242 NLRB 1357 ( 1979).
As part of the relief sought, the General Counsel also
seeks imposition of a so-called visitatorial clause whereby
the Board would be authorized to engage in certain dis-
covery activities in order to monitor compliance. Al-
though requests for the imposition of such a provision re-
cently have become a common practice , there is no
showing that it is of particular applicability or usefulness
in dealing with the type of unfair labor practice involved
in this proceeding . Accordingly, the request is denied
and no visitatorial clause will be imposed as part of the
Order here.
[Recommended Order omitted from publication.]