Lee Norse Co.

National Labor Relations Board - Board Decisions

Feb 5, 1980

247 N.L.R.B. 801 (N.L.R.B. 1980)

LEE NORSE COMPANY
Lee Norse Company, a subsidiary of Ingersoll Rand
Company and United Steelworkers of America,
Local 8514, AFL-CIO-CLC. Case 6-CA-9823
February 5, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENEtI.O, AND
TRUESDALE
On September 20, 1977, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, The General Counsel filed
exceptions and a supporting brief. Respondent filed
cross-exceptions' to the Administrative Law Judge's
Decision and a brief in opposition to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
The Administrative Law Judge found, and we
agree, that Respondent's decision to relocate its
operation was not based on antiunion reasons; that it
did not unlawfully refuse to bargain over that decision
and its effects; that it did not unlawfully refuse to
recognize the Union at Robinson Plaza, the new
location; and that it did not unlawfully refuse to
transfer unit employees to the Plaza. Our dissenting
colleague joins us in all but the last of these findings.
Thus, his sole disagreement with us concerns Respon-
dent's failure to transfer unit employees to the new
location, which he would find to be a violation of
Section 8(a)(3) of the Act. For the reasons stated
below, we find that his position is not supported by the
facts.
Respondent operates manufacturing facilities at
four locations. Its corporate and executive offices were
in Charleroi, Pennsylvania. In 1973 and 1974, Re-
spondent began to decentralize central management
due to increasingly crowded conditions at Charleroi.
In 1975, employees were informed that expansion
' We note the following inadvertent errors in the Administrative Law
Judge's Decision: Respondent is a Delaware corporation not a New Jersey
corporation: the town of Wise, the site of one of Respondents manufacturing
rfacilities. is located in Virginia. not West Virginia, the production unit is
represented by Local 2658 not Local 8514; the first negotiating conference
took place on July 17, not on July 29; the Union agreed to a contract clause
limited to Charleroi on November 14, not in December; the testimony
referred to as given by Respondent's plant manager was given by Respon-
dent's personnel manager and other supervisors
247 NLRB No. 98
would take place in Respondent's accounting, engi-
neering, and data processing departments. In Septem-
ber 1975, Respondent formulated a long range plan
for a major relocation of its corporate headquarters in
the vicinity of Pittsburgh.
About the same time, the Union began to organize
Respondent's employees in a unit consisting of 156
office clerical and technical employees at Charleroi. In
April 1976,' the Union won a Board election to
represent these employees and was certified in May. In
June, Respondent rented 50,000 square feet of space
for its corporate headquarters at Parkway Plaza, a
location 50 miles distant from Charleroi.
In negotiating their first agreement, Respondent
and the Union met approximately 24 or 25 times. On
July 19, at the initial bargaining session, Respondent
informed the Union of its intention to implement its
earlier decision to remove its corporate headquarters
(including sales, data, and accounting departments)
from Charleroi to the Plaza and that this move would
affect some job classifications in the unit represented
by the Union. In the meeting that followed the Union
did not dispute Respondent's need to transfer due to
economic considerations. Further, the Union did not
offer alternative proposals to relocation. Instead. on
July 29, the Union requested recognition at the Plaza
and proposed a recognition clause covering the Plaza.
Respondent rejected this request for extended recogni-
tion as being premature. The Union also maintained
that the affected employees had a right to transfer to
the relocated jobs but this demand by the Union was
consistently tied in with the Union's demand for
recognition at the new facility. Respondent denied it
had any obligation to transfer employees but stated
that employees affected by the move could make
applications for employment at the plaza and would
receive the same consideration as other applicants.
Through August and September the parties contin-
ued to meet and maintain their respective positions as
discussed above. On September 15, Respondent for-
mally signed a lease for the aforementioned Plaza. On
September 29, the contract covering the production
and maintenance employees expired, at which point
both the production and maintenance employees and
the technical and office employees went on strike. No
unit employees were moved before the start of the
strike. Implementation of the relocation started to
take form during the strike and was completed by the
: The General Counsel and Respondent have excepted to certain credibility
findings made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
All date are in 1976 unless otherwise indicated.
8(01
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spring of 1977. As a result of the move the number of
jobs in the newly certified unit at Charleroi was
reduced from 138 to about 44.
On November 14, the Union yielded its demand for
extended recognition and agreed to a recognition
clause limited to Charleroi as delineated in the
certification. In return Respondent agreed that prefer-
ential hiring would be given to the Charleroi employ-
ees affected by the move in the event that the
Company opened a facility in the immediate Charleroi
area. Respondent also agreed to give severance pay in
the amount of $1,280 and an additional bonus of $550
to employees laid off as a result of the relocation.
On November 19, Respondent announced its deci-
sion to relocate an additional department-engineer-
ing-to the Plaza. This move was dictated by the
strike at Charleroi which shut down the Company, the
unused space available at the new location, and the
difficulty Respondent encountered in recruiting engi-
neers to live in Charleroi.
On January 29, 1977, a contract agreement was
signed by the parties which included the limited
recognitional clause and the provision relating to
severance pay and preferential hiring to affected
employees. The Union held a meeting at which it
explained to its members that there would be sever-
ance pay and an additional amount as compensation
for anyone who lost his job because of the relocation,
whereupon the members ratified the agreement.
Although Respondent had suggested that affected
employees apply as new hires at the Plaza, the
employees did not do so until after the strike ended,
and then only nine applied. On February 7, 1977, the
Union held another meeting at which 26 employees
(some of whom were among the 9 who applied
independently) signed a document requesting transfer
to the Plaza but on the condition that they receive the
benefits negotiated for and covered by the newly
signed collective-bargaining agreement. However, Re-
spondent never received these requests as the Union
chose not to show the document to Respondent until
the day of the hearing in the instant case.
By February 1977, Respondent had transferred
some work done by unit employees to distant locations
other than Pittsburgh. Sales and purchasing work
previously done at Charleroi was being performed
elsewhere. The vast majority of work at the Plaza was
done by contract employees.
' Most of those transferred to the Plaza were supervisors and managers. The
nonsupervisory employees receiving such transfers were approximately 6
financial analysts in the accounting department. approximately 6 computer
programers in the IBM department, and approximately 20 to 25 engineers and
designers in the engineering department. In addition, three confidential
employees and one administrative assistant were transferred. These employees
were excluded from the unit described below:
All office clerical, plant clerical, and technical employees, including the
timekeeper, expeditors, pans schedulers, production coordinators, and
On the basis of these facts, the Administrative Law
Judge concluded that Respondent's relocation was
based on legitimate economic reasons; that it properly
bargained over the decision to relocate and its effects;
and that the change in the original bargaining unit was
so fundamental that the Plaza was not an integral part
of the existing unit at Charleroi and that Respondent,
therefore, was under no legal obligation to transfer
any of the Charleroi unit employees to the Plaza. We
fully agree with these findings.
Our dissenting colleague agrees with the Adminis-
trative Law Judge's conclusions including that regard-
ing Respondent's obligation to unit employees. He
nevertheless argues that Respondent unlawfully re-
fused to transfer unit employees to the Plaza. His
argument is based on one fact alone-that Respondent
offered to transfer, and in fact transferred, most
nonunit employees at Charleroi without requiring
them to apply for jobs there while refusing to do the
same for unit employees.' This difference in treatment,
he asserts, demonstrates that Respondent was motiva-
ted by a desire to avoid dealing with the Union as their
representative. He further would find that the failure
to transfer unit employees is inherently destructive of
their Section 7 rights and, therefore, violative of the
Act without need for proof of an underlying illegal
motive.
In our opinion both theories advanced by our
colleague are lacking in merit in the circumstances
herein. In his first theory our colleague argues that
Respondent's disparate treatment of the unit and
nonunit employees, absent proof of a legitimate
business reason for its actions, was motivated by
antinuion considerations. There are no difficulties
with this finding-first of all it is contrary to the
presumption that absent evidence of illegality it is
presumed that an action was taken for lawful reasons,
and second the record contains no evidence concern-
ing the reasons for this different treatment, and, thus,
Respondent was not afforded a realistic opportunity to
present evidence of its lawful business reasons for
treating the unit and nonunit empoyees differently.
Many possible legitimate reasons suggest themselves.
And here at the very least it must be said that the
General Counsel did not even claim or assert that this
disparate treatment was illegally motivated, and ab-
sent such a claim (let alone any evidence in support
thereof) there was no reason for Respondent to proffer
buyers employed by the Employer at its Charleroi, Pennsylvania, facility;
excluding all production and maintenance employees, confidential
employees and guards, professional employees and supervisors as defined
in the Act.
Inasmuch as technical employees were included in the unit, and profession-
al employees were specifically excluded from the unit, we infer that the parties
excluded financial analysts, computer programmers, engineers, and designers
from the unit because they viewed them as professional employees.
802
LEE NORSE COMPANY
such evidence. Nor, indeed, did the General Counsel
argue this theory in his exceptions and brief to the
Board.
Far from claiming illegally motivated disparate
treatment, the General Counsel litigated this case
essentially on the claim that Respondent's decision to
move the plant from Charleroi to the Plaza was
motivated by antiunion considerations, and that Re-
spondent violated Section 8(a)(5) of the Act by failing
and refusing to bargain with the Union concerning its
decision to relocate and the effect thereof on the unit
employees. The Administrative Law Judge dismissed
the complaint because, inter alia, he found that the
General Counsel had not sustained his burden of
proving either that Respondent's decision to relocate
was discriminatorily motivated or that it unlawfully
refused to bargain with the Union about the relocation
and its effects. The dissent does not question any of
these findings. Under these circumstances, it is not for
the Board to devise a theory which would lead to the
finding of violation sought by the General Counsel. To
do so, and to presume illegality of motive for the
selection without litigation of the matter, would be a
gross denial of Respondent's right of due process.
Our colleague next argues that Respondent's dispa-
rate treatment of the unit and nonunit employees is
inherently destructive of employee rights and is,
therefore, unlawful without proof of antiunion motiva-
tion. We also disagree with this conclusion. As with
our colleague's first rationale, this assertion was also
not made by the General Counsel and was not
litigated; therefore, Respondent was not afforded an
opportunity to defend against it. Furthermore, we
disagree, on the facts of this case, that the differences
in the treatment accorded unit employees vis-a-vis
their nonunit coworkers is per se violative of Section
8(a)(3) of the Act.
That Respondent was not obligated to transfer the
unit employees en masse to the Plaza is not disputed
by the dissent. Nor is it disputed that Respondent
satisfied its obligation to bargain with the Union about
the decision to relocate and the effects thereof on the
unit employees. asserted "transfer rights." As a result
of such bargaining, Respondent and the Union entered
into a contract which provided, inter alia, for sever-
ance pay and relocation bonuses in lieu of automatic
transfer to the new location. There is no evidence that
Respondent has in any way reneged from its bargain.
The dissent nevertheless argues that the Union, by
entering into this agreement, did not thereby waive the
T' he cases cited by our dissenting colleague- Coated Products. Inc., 237
NLRB 159 (1978). and Allied Mills. Inc.. 218 NLRB 281 (1975)-are clearly
distinguishable on their facts. In both cases. the entire record demonstrated
that the employer "utilized the move to rid itself of the Union" by. inter alia.
refusing to bargain in good faith over employee transfer rights. Allied Mills.
218 NLRB at 286. Such is not the case here. In the instant case. the Union
was given ample opportunity to seek transfer rights for its members, and
employees' Section 7 rights. We presume that the
reference to the employees' "Section 7 rights" refers
not to any right to be transferred automatically to the
new plant-a right which has been found not to exist
here; rather, we assume that this reference speaks only
to the employees' right to be considered for employ-
ment at that location without discrimination based on
union considerations. If that is what our colleague
urges, we fully agree with him that the contract did
not waive the employees' right to be treated in a
nondiscriminatory manner with other applicants for
the same jobs. However, there is no evidence in the
record that the unit employees were in fact unlawfully
denied employment at the Plaza because of their union
affiliation.'
On the other hand, if our colleague contends that
the employees were entitled to be transferred automat-
ically to the Plaza-simply because the nonunit
employees were so transferred-then we disagree. For
we find no support for a theory that holds that unit
employees, whose working conditions are governed by
a collective-bargaining agreement, must particularly
be accorded the same benefits that nonunion employ-
ees enjoy. For all the reasons set forth above, we
disagree with our dissenting colleague.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is,
dismissed in its entirety.
MEMBER JENKINS, dissenting:
Although I agree with my colleagues and the
Administrative Law Judge in other respects, I would
find that Respondent discriminatorily refused to
transfer persons in the newly certified bargaining unit
to its new location, while contemporaneously transfer-
ring virtually all of its nonunit personnel in the
affected departments. Indeed, the facts of this case
compel a conclusion that Respondent's refusal to
transfer unit employees was motivated by a desire to
rid itself of the Union, and its actions can be
considered inherently destructive of the employees'
Section 7 rights.
Respondent maintains four separate manufacturing
facilities. At its largest, which is located in Charleroi,
Pennsylvania, it also maintained until early 1977 the
admittedly settled for a severance bonus and preferential hinng at any future
Charleroi area facility in lieu of transfer rights. Therefore, this case is
indistinguishable from The Pierce Governor Company. Inc.. 164 NLRB 97
(1967). affd. 394 F.2d 757 (D.C. Cir. 1968), cert. denied 393 U.s. 831. wherein
the Board found no violation in the mere failure of employees to obtain
transfers, where the company bargained in good faith about the effects of its
relocation without agreeing to transfer employees to its new location.
803
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bulk of its corporate and executive offices. The record
shows that in late 1974 and early 1975, it became
apparent to Respondent that it would have to move its
offices in order to accomplish its plans to decentralize
its administration and to expand its office staff. The
Administrative Law Judge found that in the fall of
1975 the decision to move some of these operations
was made final. In the meantime, starting in early
1976, employees in the offices began to express interest
in union representation.' Following an election con-
ducted on April 29, 1976, the Union was certified as
bargaining agent for the following unit:
All office clerical, plant clerical, and technical
employees, including the timekeeper, expediters,
parts schedulers, production coordinators, and
buyers employed by the employer at its Charleroi,
Pennsylvania, facility; excluding all production
and maintenance employees, confidential employ-
ees and guards, professional employees and su-
pervisors as defined in the Act.
There were 156 employees in the newly certified
unit. Although Respondent's plans to move its offices
apparently were formulated long before the union
began its organizing campaign among office employ-
ees, Respondent did not notify the Union of these
plans until negotiations concerning the office clerical
and production and maintenance units commenced on
July 29, 1976.
From the outset, the Union took the position that it
had the right to represent employees at the new
location. Respondent rejected that proposal, stating
that it would consider applications from unit employ-
ees on an equal basis with those of persons it had not
previously employed, and that, if the Union desired
recognition, it would have to organize the employees
at the new location. Both units struck Respondent on
September 29, 1976, and did not return to work until a
contract was signed on January 29, 1977. In Decem-
ber 1976, Respondent commenced moving its office
operations to Robinson Plaza located approximately
50 miles from Charleroi. In contrast to its treatment of
unit employees, Respondent offered to transfer most
of the nonunit employees-professionals, supervisors,
managerials, and confidentials-without requiring
them to fill out applications. Most of them (about 40)
in fact were transferred. Additionally, Respondent
"promoted" 21 unit employees to positions it consid-
ered nonunit jobs. By the spring of 1977, the number
of unit employees at the Charleroi facility had been
reduced to 44. Up to this time, no unit employees had
applied for transfers; rather, the Union had continued
to press its demand for an across-the-board transfer of
unit employees and for recognition at the new facility.
' The Union has represented production and maintenance employees at
Charleroi for many years.
Ultimately, the contract agreed to by the parties
limited the bargaining unit to Charleroi (although the
Union apparently reserved the right to argue before
the Board that the new location constituted an
accretion to the existing unit), required that unit
employees be given hiring preference if the Respon-
dent opened another facility in the immediate Charler-
oi area, and provided for severance pay plus a $550
bonus if the move caused an employee to lose his or
her job. Subsequent to ratification of the contract by
the membership in February 1977, nine unit employ-
ees applied for employment at the Robinson Plaza
facility; none has been hired. Later, the Union
compiled a list of 26 names of persons desiring to
transfer to Robinson Plaza. This list, however, was not
submitted to Respondent until the hearing.
In dismissing that part of the complaint relating to
the alleged discriminatory refusal to transfer unit
employees to the new facility, the Administrative Law
Judge stated that "none of them requested work there
until after they had voted to approve the negotiated
contract in February of 1977 and after severance and
'relocation' pay had been fixed," and that the Union
had sought only recognition at the new facility, not the
transfer of unit employees. He specifically credited the
testimony of Respondent's personnel manager that
during negotiations the Union had requested that it
"transfer people up there as members of the Union."
However, he concluded that Respondent lawfully
could have refused this demand since "it was under no
legal obligation to accept any of the [unit employees]
at the Plaza if it so chose." The Administrative Law
Judge acknowledged that the persons who eventually
did apply for employment at the new facility might
have been refused reemployment unlawfully, but
concluded that the record was devoid of any evidence
that "these people [were] treated differently than
anyone else."
I agree with the Administrative Law Judge that
Respondent did not decide to transfer its operations
for antiunion reasons, did not unlawfully refuse to
bargain over that decision or its effects, and did not
refuse unlawfully to recognize the Union at Robinson
Plaza. I disagree with his, and my colleagues',
conclusion that Respondent did not violate Section
8(a)(3) of the Act by refusing to transfer unit
employees to Robinson Plaza. In view of Respondent's
refusal to transfer the unit employees, while at the
same time offering to transfer and in fact transferring
most nonunit employees in the affected departments,
and the absence of any lawful justification for its
actions, it is plain that Respondent was motivated by a
desire to avoid dealing with the Union as the
representative of its office and technical employees at
804
LEE NORSE COMPANY
Robinson Plaza. Such discrimination, of course, vio-
lates Section 8(a)(3) of the Act.7 Moreover, even
absent a finding that Respondent's disparate treatment
of its unionized employees vis-vis its unrepresented
employees was motivated by antiunion considerations,
I would find the failure to transfer the unit employees
to be inherently destructive of their Section 7 rights,
and thus violative of the Act without need for proof of
an underlying improper motive.'
Treating union members worse, or nonunion em-
ployees better, because of their membership or non-
membership in the union is the definition of discrimi-
nation. This is what happened here. Such action
speaks for itself, like Thoreau's trout in the milk: no
further proof of motive to discriminate is necessary,
because the motive is inherent in the act. And as to
such acts which are "inherently destructive" of
statutory rights, some presumed but unproven busi-
ness justification, which my colleagues are willing to
accept, is no defense. All of this is what the Supreme
Court held in Great Dane, supra, a decision which the
majority does not remark. Their further argument that
this issue cannot be considered because the General
Counsel "did not even claim" it as a violation is
likewise mistaken. The General Counsel alleged dis-
crimination in violation of Section 8(a)(3) of the Act,
and he alleged the facts-favorable transfer treatment
of nonunion employees and unfavorable transfer
treatment of union employees-which establish the
discrimination. This is all he is required to do, under
any theory of pleading. At bottom, the "not alleged"
argument amounts to saying that these facts do not
constitute a violation, and the argument is a tautology,
in no way involving due process.
The Administrative Law Judge's purported justifi-
cations for Respondent's discrimination against unit
employees do not withstand scrutiny. First, his sugges-
tion that the Union somehow waived the employees'
rights by negotiating a contract which provided for
severance pay and relocation bonuses is inconsistent
with long-established Board precedent regarding the
waiver of Section 7 rights. There is here no "clear and
unmistakable" agreement by the Union that unit
employees could be treated differently than nonunit
employees.' Indeed, as the Administrative Law Judge
found, the Union had requested during negotiations
that unit employees be transferred to the new facility.
But the fact that the final agreement did not provide
for transfers can hardly be deemed a waiver of the
employees' right to be treated on a nondiscriminatory
basis."' Second, the Administrative Law Judge's sug-
gestion that the employees themselves waived their
transfer rights because none of them filed applications
for employment at the new facility until after the
contract was ratified in early 1977 is clearly erroneous.
The fact that the employees apparently relied on their
collective-bargaining agent to protect their rights and,
therefore, did not accept Respondent's less-than-gen-
erous offer "that they could file applications for
employment at the new place and would be considered
for hire as would outsiders" can hardly be deemed a
waiver of their right to nondiscriminatory treatment,
nor can it be said to have given Respondent grounds
to believe that none of the unit employees desired to
transfer to the new location. Finally, although Re-
spondent claims to have subcontracted some of the
work transferred to the new facility, there is no
evidence that (1) it considered this as precluding the
transfer of unit employees since those contracts were
terminable at any time, or (2) unit employees are
incapable of performing the work at the new facility.
Accordingly, I would order Respondent to offer
immediate reinstatement and transfer to the new
facility" to those persons it would have offered to
transfer but for its discriminatory conduct.'
See Coated Products. Inc.. 237 NLRB 159 (1978) 4 lied Mill. Inc.. 218
NIRB 281. 287-288 (1975). enfd. 543 F2d 417(DC Cir 1976).
.L R. . Great Dane lrailer%. Inc.. 188 U S 26 (197)
See Gary-tlohart Water Corporalioll. 210 NLRH 742, 744 (1974). enfd 51 I
F 2d 284 (71h Cir 1975).
'See Keller-Crescent Company a Divioson oJ Mol er. 217 NLRB 685
(1975). enforcement denied 538 F.2d 1291 (7th Cir. 1976)
Respondent's suggestion that ordering it to offer transfers to employees
under these circumstances would violate the Supreme Court's decision in II.
K. Porter Co. v N.L.R... 397 U.S. 99 (1970). is without merit. There. the
Court was concerned with public intrusion into the collective-bargaining
prxoess. and held that the Board w.as precluded from requiring an employer to
agree to a union's demands hased on its finding that the employer had
engaged in had-faith hargaining Nothing in that decision, however. can he
said to limit the Board's power to remedy an 8(a)(3) violation simply because
the parties have also discussed it at the bargaining table
See Coated Product. %ispru: Allied Mill. upra.
DECISION
STATE1MENT OF THE CASE
THOMAS A. RIccI, Administrative Law Judge: A hearing
in this proceeding was held on June 6, 7, 8, and 27, 1977, at
Pittsburgh, Pennsylvania, based on the complaint of the
General Counsel against Lee Norse Company, a subsidiary
of Ingersoll Rand Company, herein called Respondent or
the Company. The complaint issued on March 31, 1977,
upon a charge filed on December 20, 1976, by United
Steelworkers of America, Local 8514, AFL-CIO-CLC,
herein called the Charging Party or the Union. The issues
presented are whether Respondent refused to bargain with
the Union in an appropriate bargaining unit, and thereby
violated Section 8(a)(5) of the National Labor Relations Act,
as amended, and whether it illegally discriminated against
employees in violation of Section 8(a)(3). Briefs were filed
after the close of the hearing by the General Counsel and
Respondent.
Upon the entire record and from my observation of the
witnesses, I make the following:
()5
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Lee Norse Company, a New Jersey corporation with its
principal office in Wood Cliff Lake, New Jersey, is engaged
in the manufacture and nonretail sale of mining equipment
at various facilities throughout the United States. During the
12-month period preceding issuance of the complaint, it
shipped directly from one of its locations, in Charleroi,
Pennsylvania, goods valued in excess of $50,000 to points
located outside the Commonwealth of Pennsylvania. I find
that Respondent is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that United Steelworkers of America, Local 8514,
AFL-CIO-CLC, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. A Picture of the Case
Lee Norse designs, produces, and sells mining equipment.
Its manufacturing facilities are carried on at four separate
locations: Charleroi, Pennsylvania, Wise and Beckely, both
in West Virginia, and Taylorville, Illinois. There are auxilia-
ry sales and services facilities at each of these four places, but
the Company also has additional sales and services facilities
located throughout the United States. The corporate and
executive offices of Lee Norse have long been at Charleroi,
and it is a wholly owned and controlled subsidiary of
Ingersoll Rand, whose main offices are in another state.
During 1976 the Lee Norse central offices, including
corporate officials, overall executive functions, and compa-
nywide office and engineering work, were moved to a
location called Parkway Plaza, 50 miles away from Charler-
oi by road, close to the city of Pittsburgh industrial complex,
and near the airport which services that much traveled and
built-up area. Plans for this major move started in 1974,
were finally decided in 1975, and resulted, in major part,
from a very substantial growth in the Lee Norse business. Its
total employment progressed from 442 employees in 1970, to
506 in 1971, 586 in 1972, 627 in 1973, 835 in 1974, 1,118 in
1975, and 1,255 by December 31, 1976.
The events giving rise to this case occurred at Charleroi,
where Lee Norse always produced, and still produces, a
substantial portion of its products. The production employee
group here, numbering about 400, has long been represented
by Local 8514 of the United Steelworkers under successive
collective-bargaining agreements. In February 1976 the
same Local Union filed an election petition with the Board,
seeking to represent a unit of technical and office employees
at Charleroi, including employees in such departments as
accounting, sales, data processing, and engineering. Follow-
ing a hearing on the petition and a Board-conducted
election, Local 8514 was certified as the bargaining agent for
that group in May 1976.
The production department contract was due to expire on
September 30 and the parties, i.e., Local 8514 and Lee
Norse, started bargaining with respect to both units at or
about the same time. The first negotiating conference
respecting the new technical and office unit took place on
July 29. Between that date and January 29, 1977, when
agreement upon a complete contract was reached, there were
24 meetings or so. During the same period the Company was
holdin separate meetings with the Union attempting to agree
upon renewal of the production unit employees contract.
That contract also was agreed to on January 29. To enforce
its economic demands the Union called a strike beginning on
September 29 with both groups of employees acting in
concert. The strike ended only when the parties agreed upon
all the terms of the final agreements 4 months later.
While all this was going on the Company started to
implement its earlier decision to remove certain departments
from Charleroi to Parkway Plaza. With the advent of the
strike, and the consequent difficulties in functioning there, it
finalized a further decision to establish its engineering
department at the Plaza also. The total move resulted, by the
spring of 1977, in reducing the number of jobs in the newly
certified unit at Charleroi from about 138 to about 44.
During the bargaining sessions that went on concerning
the office unit, there was much talk about the relocation of
jobs from Charleroi to the Plaza. The Company started by
informing the Union of its intention. The Union's reaction,
repeated for many sessions thereafter, was that the Union
had a right to represent any counterpart employees who
might later do the same work at the Plaza that was then
being done at Charleroi, and that it must be deemed
bargaining agent for the Plaza as well as for Charleroi.
Respondent's position, to which it held firm throughout the
bargaining units, was that the two locations would constitute
separate bargaining units, and that if the Union wished to be
recognized at the Plaza it would first have to organize the
employees who would later be hired there.
The company agents also told the Union's representatives,
again beginning on the very first day, July 29, that any
Charleroi employees who wished to transfer to the Plaza
should submit such requests, and that the Company would
consider them for hire together with any others who might
apply from elsewhere. Not a single one submitted such a
request to the Company until after the collective bargaining
had been completed and all contract provisions had been
agreed upon. As agreed by the parties, and as signed, the
contract literally limits the bargaining unit to the Charleroi
location. It also provides for severance pay, an innovation to
the employees in the disputed unit, plus what appears to be
an additional payment of $550 to any employee who lost his
job because of the relocation. This has all been paid to those
who came subject to such provisions.
B. The Complaint Allegations
The complaint alleges that Respondent violated Section
8(a)(3) and (5) of the Act. Every Section 8(a)(5) complaint
alleging a literal refusal to bargain, as does this one, defines
the appropriate bargaining unit. Here it is defined as joining
the Charleroi employees expressly included in the Board's
May 1976 certification with the employees now doing
806
LEE NORSE COMPANY
accounting, sales, data processing, and engineering work at
the Parkway Plaza. Section 8(a)(3) proscribes "discrimina-
tion in regard to hire and tenure of employment." In this
respect the complaint charges Respondent with having
discriminated against over 100 employees by the act of
relocating their jobs, by refusing them "the opportunity to
transfer" to the distant location, and by "refusal to rein-
state" employees.
The complaint can be read as stating alternative and
inconsistent factual assertions alleging alternative theories of
illegality. The General Counsel's brief, filed after study of
the facts revealed in the record, only adds to the ambiguity
as to what is really said to prove unfair labor practices; it
proceeds from one "assuming, arguendo." arguement to
another. Included in the General Counsel's basic argument
now is a contention that if in truth the relocation was
economically motivated, as the record strongly suggests, and
the employees had to lose their jobs as a result of economic
relocation, Respondent did wrong because it refused to
bargain about the effects of the move upon the employees.
Denying the commission of any unfair labor practices,
Respondent asserts in defense that the move to the Plaza was
based entirely upon economic considerations, and not at all
on any intent to retaliate against these employees for having
chosen to be represented by the Union in April 1976. At the
hearing it also argued, as a matter of law, that the relocation
brought into being what must be considered a bargaining
unit entirely separate from that at Charleroi, and that
therefore it was under no obligation either to transfer
employees, or to hire anyone from Charleroi if it chose not
to do so. As to the charge that it discriminated against any
old employees for an illegal reason, it not only denies the
allegation, but it also rests upon the evidence that it was not
until after all bargaining had been completed, and all the laid
off employees had been paid severance or "relocation"
benefits, that any of them asked for jobs at Parkway Plaza.
But its principal defense is that it did bargain in good faith
all the time to the Union's complete satisfaction.
C. The Issues Presented
I view this proceeding as essentially a refusal-to-bargain
case. The labor-management dispute which provoked it was
disagreement, in the light of the Company's announced
intention to relocate work and jobs, over the scope of the
bargaining unit in which the Union would have exclusive
representative rights after the relocation. The unit described
in the certificate reads "Employees . . . employed by the
employer at its Charleroi . . . facility," and Respondent,
already having other locations in existence elsewhere at the
time, insisted the unit could not be expanded to include
another location 50 miles away. Because part of the work to
be performed at the Plaza was to be the same as previously
done at Charleroi, the Union demanded inclusion in its
Charleroi contract for such counterpart jobs to be estab-
lished there; some of the Charleroi jobs were transferred to
other already existing facilities of the Company. The Union's
firt 'proposed contract rephrased the underlying unit as
including the Plaza. For several months, throughout many
meetings in August, September, and even into the 4-month
strike, the Union held firm to this position, but Respondent
refused to yeild. No jobs were moved before the start of the
strike; the planned relocation started to take form during the
strike and was completed later.
Throughout this period, well into the month of January
1977, the relocation program was discussed only in terms of
the Company's duty to recognize the Union in the Plaza
location. In or about December the Union yielded and
agreed to a contract recognition clause limited in so many
words to Charleroi in keeping with the language of the
certificate. On December 20 it filed a charge with the Board
alleging nothing more than a refusal to bargain.
Bargaining continued, and, as stated above, on January 29
full agreement was reached and the strike ended. Now, for
purpose of decision here, it is important to note several very
significant facts: (1) Although the Union's spokesman, at
one conference at least, accused the Company of doing all
this because the affected employees had voted for the Union,
it did not file 8(a)(3) charges with the Board until after a
contract had been signed; (2) the Union did state at
meetings, through one of its spokesman, John Shosky,
president of the Local, that Charleroi employees should have
the right to work at the Plaza if they wished. The Company's
response was that they were privileged to make applications
for jobs there and that they would be considered for hire as
would outsiders; (3) the negotiated contract provided for
severance pay to employees who lost their jobs and for extra
cash for those who suffered because of the relocation; and (4)
no affected Charleroi employee applied to the Company for
jobs at the Plaza until after the collective-bargaining agree-
ment had been settled. It was not until March 1, 1977, that
the Union first amended its charge to allege that the loss of
jobs resulting from the relocation constituted a violation of
Section 8(a)(3) of the Act aimed at all of the employees
adversely affected. The complaint, issued on March 31, then
expanded this to a broadside assertion that the entire move
was illegally motivated. There are four questions to be
decided:
1. Did Respondent change its method of operating, and
relocate all this work from Charleroi to the Plaza, because
the employees involved had voted in favor of the Union in
April 1976? If this is true, and it is a fact that close to 100
employees lost their jobs as a consequence, it absolutely
discriminated against them in their employment in violation
of the statute. Also, if this is true, it is immaterial whether or
not the new location and operation can, or must be
considered, part and parcel of the old Charleroi unit. The
illegal hurt to the employees would be real in either event.
2. If there is insufficient affirmative evidence of illegal
motivation, in which event the relocation must be viewed as
a purely economic move, can it be said, under applicable
Board principles, that the two locations together are but a
continued existence of the original bargaining unit in which
the Union became the exclusive bargaining agent? In that
event, it was unlawful of Respondent to have refused to
bargain with respect to the pertinent work to be performed
there and there would remain only a question of remedy-
what to do about it in view of what the parties later agreed to
do about it between themselves.
3. If the certified unit was dismembered for economic
reasons, did Respondent nevertheless refuse to bargain about
807
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"the effects" of the relocation upon the employees adversely
affected?
4. If the new location is no more than still another of the
many which this Respondent operates, albeit a new one, and
therefore has nothing to do with Charleroi insofar as a single
bargaining unit is concerned, did Respondent deny employ-
ment there to old Charleroi employees because of their
prounion activities? Refusal to hire anybody, no matter
where they worked before, for a prohibited reason is an
unfair labor practice regardless of unit findings or collective-
bargaining questions. But, no matter how this concept is
phrased in the complaint or in the prosecution brief, there
must be evidence that employees sought the jobs, asked for
them, and tried to come to the Plaza before it can be found
that the Company discriminated against them.
D. The Relocation: Alleged Illegal Motivation
A finding that relocation of a fraction of the employees
who chose to be represented by the Union at Charleroi in
May 1976 resulted, even in part, from an intent to remove
them from the collective-bargaining process would, in this
case, have to be an inference warranted by related facts.
There is no direct evidence indicating such illegal purpose.
In such circumstantial evidence situations, all relevant facts
must be considered, and those which, from one view seem to
support one inference, must be appraised from all angles.
The General Counsel starts by emphasizing that "the
Union was notified for the first time" at the first negotiating
session. One can imagine how more emphatic this conten-
tion would be had the Company concealed its intention at
first and only told the Union about it at the second session.
How much sooner could the Company have informed the
bargaining agent than when they first met? The fact is that
the employees already knew of the relocation plans-in
general terms it is true-long before the election took place.
On this score the testimony leaves no doubt and need not be
repeated. The implication here is that, because the Company
told the Union about its plans that day, it follows there was
no such plan earlier and that the whole concept was timed
with and flowed from the fact the Union won the election. If
there is one thing this extended record shows convincingly,
it is that Respondent had long been preparing for this move
and that its basic reason was one of necessity, completely
unrelated to union activity.
The technical and office employees involved at Charler-
oi-sales, data, accounting, and engineering-serviced the
Company's entire operations, not only the manufacturing
functions carried out at that single location. The overall
operations kept growing larger and larger, as evidenced by
the greatly increasing number of employees on the payroll.
That there was rational explanation for moving these
centralized functions to larger accomodations, let alone for
the moment the need for a more desirable location, cannot
be questioned. And there is documentary evidence of plans,
resolutions made and approved by higher authorities in both
Lee Norse and its parent organization, long before any union
activity had started among the employees later affected. It
was not only these pinpointed rank and filers who were
moved, but all corporate officers, executives, and company-
wide managers also were relocated. There is no question but
that the overall change, in intent, long antedated union
activity. There is perfect logic in the Company's moving,
with management, those technical and service department
people whose work was integrated with the wider operations
and dovetailed with responsibilities and functions of their
superiors.
In his brief the General Counsel seeks to avoid this
reasoning by pointing to the fact that, before unionization of
these salaried employees at Charleroi, none of the Compa-
ny's salaried personnel were represented by unions anywhere
throughout its entire system. The employees who remained
at Charleroi performed functions "on a plant level basis,"
while all those transferred to the Plaza did work "on a
divisionwide basis." Ergo, the argument continues, Respon-
dent "logically . . . would have an aversion to this union
representing its salaried division headquarter's personnel."
This is a pure presumption based on nothing more. The
argument then proceeds that, from the fact Respondent did
not just transfer its Charleroi employees to the Plaza, it
follows that it made the move only because they had joined
the Union. Now the reasoning is bootstrap, and only restates
the conclusionary allegation of the complaint.
At the fourth bargaining session on August 5 the
Company gave the Union a list of 21 names, employees it
said were no longer to be affected by the collective
bargaining. The list marked five as having quit, four as
discharged, four as supervisors, four as confidentials, and the
remaining six as having been transferred to such out-of-unit
jobs as administrative assistant, senior buyer, general ac-
countant, etc. The General Counsel now contends that this
was "a degradation of the Union" by Respondent, evidenc-
ing its union animus. But as the hearing progressed the
union spokesman admitted the employees marked "quit" or
"terminated" had in fact left or been fired. As to the
"confidentials," it is also clear that all four fell in a category
that had been disputed at the representation case hearing
and whose challenges at the election had not been resolved.
As to the exclusion of others for having changed jobs, there
is no evidence giving the lie to the Company's assertions as
to them.
There is also an implied contention that the proportionate
increase in the amount of original unit work later performed
under subcontract with independent employers at Pittsburgh
shows an intent to prejudice the now revealed unioneers as
such. This change in method of operations, from the use of
direct employees of the Company to utilizing contract
employees instead, was especially marked in the engineering
department. To start with, Respondent has always used
contract employees, as far back as 1975, in all of the affected
technical and office departments at Charleroi. To a certain
extent it is even doing so there now. It has also always had a
limited amount of engineering work done at Pittsburgh, a
location other than the new plaza, by its own employees as
well as by a contractor because of the shortage of space at
Charleroi, as the personnel director testified.
On November 19 the Company announced to the Union it
had decided permanently to shift the entire engineering
department to the Plaza. Again, there are facts of record
indicating economic explanation for the final move. Charler-
oi was shut down for 4 months because of the overall strike,
from October I to January 29. Engineering employees-
80X
LEE NORSE COMPANY
professionals, technicals not included in the newly certified
union, and contract employees doing the same work--could
not work there, in part because of the willful absence of the
lower paid members of the department and in part because
of what Personnel Director Berks called, without contradic-
tion, "blockage," "mass picketing," and "sabotage." Shosky,
of the Union, while calling this, at the hearing, "the ultimate
slap in the face," admitted that Berks told him at that time
one reason for this relocation was the strike.' I make no
finding of strike misconduct here, but it is a fact that the
object of any strike is to impede all production processes
inside the plant. I doubt even Shosky, back in November,
would himself have voiced personal resentment at the idea of
the Company's deciding to do the work somewhere other
than behind the picket line. If this perfectly understandable
partial explanation for the decision is coupled with the fact
that there was newly rented unused space available at the
new location, that the change was required by much broader
companywide considerations, and that the exigencies of the
moment practically dictated the use of subcontract compa-
nies, the suggestion that more extensive contracting and the
move itself prove illegal animus becomes less and less
persuasive.
The personnel director gave additional reasons for the
decision to relocate the engineering department. He said it
was becoming more and more difficult to recruit profession-
al engineers to come to live in the Charleroi area, and that,
in view of the progressive increase in the Company's
business, pressing need for added personnel virtually com-
pelled the choice of a more desirable living area. Considering
the geography, it was a persuasive statement. Of course, one
cannot resolve so complex a situation by focusing upon only
one of many related facts. Shortly before the November 19
announcement about the engineering department, the Union
agreed to limit its negotiations so that its ultimate contract
would be limited to Charleroi, consistent with the certificate.
The General Counsel contends that this, and only this, was
Respondent's reason for relocating the entire department;
i.e., now that the Company was assured the old engineering
people would be excluded from union representation. It is
too cavalier a sweeping aside of all the Union was doing to
cripple the entire operation at Charleroi.
One clear fact does weigh in favor of the complaint on this
question of motivation. Respondent was opposed to having a
union among these employees; it did carry on a campaign to
inspire "no" votes in the election. There were no objections
filed, of course, since the Union won the election, but neither
are there any allegations of restraint and coercion in
violation of Section 8(a)(1). After hearing the evidence in
support of the Company's affirmative defense of relocation
for business reasons, the General Counsel called witnesses in
rebuttal who testified there was a preelection speech, passed
on to the assembled employees by video tape, in which a
high official of the Company assured them there was no
truth in the rumors that the Company intended to relocate
work away from Charleroi. Other witnesses, for the Compa-
ny, then testified this was not true. As to this specific
Sh¢oky testified:
Mr. Delsandro's [the union business agent] response as that he thought
it was a retaliatory move Mr Berk, stated it was not at this time and Mr
incident I am inclined to credit the General Counsel's
employee witnesses in the total circumstances, and in view of
the general demeanor of the Company's supervisors on the
other hand. Yet I do not think that one statement, logically
explainable as a planned deceit to defeat the Union in the
next day's election, can offset the uncontrovertible documen-
tary proof that the Company had intended, even while its
protagonist was saying otherwise, to make such a major
move of all its essential operations.
The increasingly crowded conditions which, according to
the Company, virtually compelled the major relocation
manifested itself during 1974 and 1975 as well as in 1976.
Steps were taken from the beginning to improve matters.
Thus, employees testified about plans explained to them to
make more use of available space in Charleroi. Deena
Gazza, a clerk in the accounting department, said she, and
others, were told in 1975 about remodeling plans, and were
shown models of what the Company intended to do. In
preparation for her testimony she made a pencil sketch from
memory about what the Company originally had in mind.
She remembered being told that "things were not properly
arranged" and that space was not "properly utilized." She
also said that one wall was in fact torn down, but that the
work stopped when the election took place. First she said the
work was discontinued on April 15; reminded that the
election took place on May 15, she went on to say, "If the
day of the election would have been later, I think the date
that they would have ceased operations would have been
later also, because I think they would have discontinued."
Anthony laano, an expediter, said he heard in 1975 that
the Company intended to build an extension to the engineer-
ing building and to clear out the warehouse and use it for
engineering. Garth Malena, a microfilm operator, said the
chief engineer told employees in his department in 1975 and
early 1976 there would be an "enlargement" of their work
area into the warehouse. He added, "The only thing that had
ever happened along with that was expansion of blueprint.
There was a phone room located there which was knocked
out," and "there was a storage cupboard built for two large
ammonia tanks." Bonnie Silbaugh, an invoice clerk, started
by saying that in June or July 1974 the supervisor informed
his group there would be remodeling, which was completed
in January 1975. He added the employees were told in 1976
that more expansion was needed because "production . . .
was just growing beyond control and we had to expand
more," and that therefore "a new room" was added to his
department where 10 men worked up until the strike.
Silbaugh also said that in January 1976 there was talk of
adding a computer, and that, while high voltage wires were
installed in anticipation of this, the computer never came.
The plant manager explained all this as temporary
measures taken throughout the period of expanding and
pressing business growth. He said, quite consistent with
much that the employee witnesses had explained, that the
overcrowding was so bad that thought had to be given to
some temporary expansion or greater use of what space was
available there. But it is a fact, apart from his testimony, that
Berks did make another statement at this meeting saylng that the
hocking of ingress and egres, of the supersislrs into the plant at
Charleroi, this took place during the strike and the cutting of the phone
lines may have caused this decision to he made
X809
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while this was going on overall plans for general relocation
of divisionwide, or companywide, aspects of the work were
progressing. On September 8, 1975, the vice president of
Ingersoll Rand directed the president of Lee Norse to
program an inquiry into finding adequate facilities "in the
greater Pittsburgh area .. between the airport and the city
of Pittsburgh" for relocation of "administrative offices and a
development facility." On September 24, 1975, the president
of Lee Norse instructed his vice president to investigate the
possibility of purchasing land at that location on a limited
investment and to plan construction of adequate facilities by
January 1977 to transfer "executive offices, sales, account-
ing, data processing, purchasing, personnel, engineering and
training." Construction plans continued; on October 20,
1975, the Ingersoll Rand manager of corporate construction
wrote Lee Norse to continue construction initiatives, sug-
gesting target dates such as April 7 and 12, 1976, for
finalization of contracts and start of construction. The
continuing correspondence shows that in November a limit
was placed on authorized expenditures and that plans had to
be reformulated. In February and April 1976, because the
expected cost seemed too great, it was decided to rent
instead, but still "in the vicinity of Pittsburgh." By June
plans materialized for rental of about 50,000 square feet of
space at what then became the Parkway Plaza. The lease was
made in September, just before the strike at Charleroi, and
the actual moves came later.
I find the total evidence insufficient to prove affirmatively
that Respondent relocated the jobs involved in order, even in
part, to discriminate against the employees because of their
union activities, as alleged at one point of the complaint. But
if the complaint is viewed in its entirety, and as reexplicated
in the General Counsel's brief, there seems to be the
additional contention that illegal motive in the entire
relocation plan is also shown in Respondent's "refusal" to
give jobs to the Charleroi employees at the Plaza. This is one
of those "assuming, arguendo" ideas that, if the Company
did not discriminate against the employees generally by
making the move, it did so anyway because it refused to use
them in Pittsburgh. The same single bow has a third arrow.
If the relocation was economically dictated, and if it is not
true the Company "refused" to hire the Charleroi people as
applicants for employment, then it must be ordered to give
them jobs today, and pay them for what money they lost,
because it refused to bargain with their union about what
was happening. It is a blunderbuss approach with the hope
that if one "assuming, arguendo," theory fails, another one
will serve.
In the interest of clarity, we return to the specific question
whether Respondent refused to hire any of the about 94
employees who never worked at Charleroi after the strike.' It
simply is not true that the Company refused to hire them at
the Plaza if only because none of them requested work there
until after they had voted to approve the negotiated contract
in February 1977 and after severance and "relocation" pay
had been fixed. When the company negotiators first told
Union President Shosky on July 29, at their first meeting,
that there was going to be a major relocation, he asked what
was going to happen to the employees. He was told they
The number is 94 because, while 156 were there at the time of the election,
21 left the unit, as evidenced by the list given to the Union at the August 5
could file applications for employment at the new place and
would be considered. He passed this message on to them
right away and again a number of times later. In fact, a
committee of five employees was always with him and heard
the Company's statement at that meeting and at all
subsequent meetings. But the only reaction by any of the
employees, according to Shosky, was that two of them asked
what did he think about the idea. Nobody filed any such
request of the Company. And, although Shosky a number of
times thereafter, in later negotiating conferences, kept
insisting the Union had a right to bargain about what
employees were to be paid at the new location, he did not say
that those jobs belong to these people and that they wanted
to move to the Pittsburgh area to work. Of course, during
the strike, October through January, they were willfully
withholding their services and would not offer to return to
work anywhere. But it is still a fact they knew the work was
going elsewhere one day and did not seem to care. During
August and September they were at work, and for all they
knew there would never be a strike. Why did they ignore the
Company's invitation to apply? The reason must be that
these people, lower paid as they were, had no interest in
accepting work 50 miles away.
After the last bargaining session, on January 29, when the
strike was settled and the final contract agreed upon, the
Union held a meeting. Shosky explained all the terms to the
60 or 70 employees present and they all voted to approve.
Insofar as this proceeding is concerned, the most significant
thing that was explained to them was that there would be
severance pay and an additional amount, $550, as compensa-
tion for anyone who lost his job because of the relocation.
Shosky said he was not sure when he signed the contract,
but added it might have been by February 7, by which date
the Company had already signed. By that time, also,
employees had started to return to work. In any event, he
said he held another meeting of employees on February 7,
where, according to him, a number of them signed a paper
headed with the statement: "People who would go if they
had been asked to the Parkway if they could have their
present benefits." All witnesses who testified agreed that the
phrase "present benefits" on this sheet means the conditions
negotiated for and covered by the newly signed collective-
bargaining agreement. The sheet shows 26 names.
This single sheet of paper constitutes the General Coun-
sel's major evidence said to prove Respondent refused to hire
the Charleroi employees. It is a revealing evidently exhibit,
and it sheds significant light upon the whole case. It is not an
application for employment; it is not even a purported
retroactive declaration that these people had ever in the past
made any such application. If it says anything at all, and I
doubt it can be read even that way, it is that, if Respondent
were today to invite them to come to work at the Pittsburgh
Plaza, they would do so, but only on condition that the
Company apply the now completed and signed Charleroi
contract to the Plaza location and never mind the fact the
Union and Company had agreed upon a contract negating
that position.
More important, in the face of his bland statement at the
hearing that he told the employees that day their signatures
meeting f the parties. and 44 were at work when the relocation was
corn pleted.
810
LEE NORSE COMPANY
would help them get jobs, and that the document now proves
the applications were made and refused, Shosky said he
never showed it to Respondent. The Company never saw it
until the day of the hearing. Asked why he had prepared
such a document if he was never going to use it, the union
president said he did it at the suggestion of a Board agent.
What this means to me is that, after personally filing a
refusal to bargain charge, Shosky led the Board agent to
believe the employees had requested employment and been
refused and that the investigator then asked did he have any
written evidence to prove such charge. Not having any,
because no employee had ever applied, he conceived the
notion of having them sign an after-the-fact statement. But
in the preparation he could not resist repeating, or inadver-
tently adding once again, his only concern-that the Union
be established as bargaining agent at the Plaza without any
interest in who might work there. ' The Union never cared
whether or not the employees moved to work 50 miles away,
and the employees were never interested in making that
move. Asked at the hearing did the Union, during the
bargaining, "bring up the subject that the people wanted to
follow their jobs to make a living," Personnel Manager
Berks answered: "Yes . . . they asked us if we would
transfer people up there as members of the Union." On the
total record one must credit this statement.
Nine Charleroi employees filed individual applications for
employment at the Plaza; most of these are on company
forms. All are dated after the contract ratification meeting in
which they agreed to accept the relocation pay, either in
February or March. Of the nine, six had already signed
Shosky's document saying they would only accept work in
Pittsburgh on condition that Respondent apply the Charler-
oi contract to that location too. Six of the nine also appeared
as witnesses at the hearing. Respondent has hired none of
them; it has their applications on file.
There is a difference between class discrimination against
employees-mass moving of an entire department to a
distant location, refusal to bargain with a union, and
substitution of an entire cadre of workmen with total
strangers for the purpose of retaliation for union activities
properly carried on-and rejection of an application for
work by a single man because of pinpointed union animus
against him. The complaint bespeaks the first of these
charges, but the record evidence falls short of proving the
allegation. Respondent did not make this relocation because
of the union activities at Charleroi, and it did not commit an
unfair labor practice by not transferring all the jobs from one
proper bargaining unit to another. In short, it was under no
legal obligation to accept any of them at the Plaza if it so
chose. It is nevertheless conceivable that it could have
deliberately denied employment to an applicant from the old
place because of his own union activities because of an intent
to discriminate against him personally. And we come once
again to the devious ambiguity that pervades the complaint.
Personnel Manager Berks testified, again without contradiction, that in
April. with much of the work at the Plaza now being done by contract
employees. the Company was giving thought to using its own direct employees
a little more. Berks therefore asked Shosky, as late as April II, did he have
any list of employees who might be interested in going to work at the Plaza,
but Shosky answered he had none.
'The record reveals the following:
There is no allegation that any of these particular nine
employees suffered illegal discrimination in any way differ-
ent than what may have happened to the total group.
Indeed, there is no evidence of -nor is it claimed that the
record shows proof of-these people having been treated
differently than anyone else. In short, the written applica-
tions prove nothing more than that, after all bargaining
concerning the "effects" of the relocation had been com-
pleted, some of the employees tried once again to make a
case against Respondent for refusing to incorporate the
Plaza location as part and parcel of the Charleroi bargaining
unit. The record is completely barren of any evidence that
any one of them was an outstanding unioneer or that they
favored the Union at all. Against this, I accept at face value
the testimony of one or two company supervisors that they
rejected this or that application because the applicant was
not qualified, had a poor record of performance at his old
job, or simply compared poorly against others who applied
for the same jobs.
The record does not suffice to prove that Respondent
violated Section 8(a)(3) of the Act no matter how viewed.
E. The Bargaining Unit
The question whether the bargaining unit in which the
Union was originally certified was so fragmented that there
was no obligation upon Respondent to recognize the Union
at its Plaza location is enmeshed with the ambiguity that
runs throughout the complaint and through the General
Counsel's arguments. The decision to move a very substan-
tial number of the jobs had been made before the first
meeting of the parties, and the Company informed the
Union of its intention. Precisely how extensive it would be
and just which employees would be affected was not then
decided or known. All the Union said is that it wanted to be
the bargaining agent at the Plaza no matter what the details
of the relocation might be. The parties bargained for 2
months, August and September, about anything and every-
thing that concerned the employees then at Charleroi, all of
them, including any holding jobs later to be relocated. On or
about September 15 the Company signed a lease for the
Plaza location; now it knew how much space would be
available and could better plan how to achieve its economic
objective. There is no way of deciding-on the basis of the
facts as of that moment-whether the grouping of employees
at the Plaza was or was not but an integral part of the
certified unit.
Then came the strike on September 29. It had nothing to
do with the question of relocation or the refusal to recognize
the Union at the Plaza. It was purely an economical struggle
between the employees and the single union representing the
400 production and maintenance employees and the office
and technical group. It will be recalled that there had long
been contract employees at Charleroi doing the very same
work as the unit employees. Respondent had also long had
Q. ... is it the contention of the General Counsel in this case that
Local 8514 engaged in an unfair labor practice strike when it struck on
October? Or an economic strike'
A. [By the General Counsel] Economic strike. There is no allegation of
an unfair labor practice.
811
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work performed at Pittsburgh, again of the type included in
the Charleroi technical and office employee unit, by contract
employees but at locations other than the Plaza. With the
advent of the strike, all contract employees at Charleroi were
moved to Pittsburgh where their counterparts worked. As to
the nonunit employees at Charleroi, professionals, engineers,
etc., with the advent of the strike they were dispersed to
various other locations to keep the centralized operations of
the Company going. And it was shortly after the start of the
strike that the Plaza location began to function, always with
contract employees, but now doing the work the strikers had
done at Charleroi. And again, as of that point in time, there
is no way of fixing the facts which normally serve for
deciding whether or not a separate unit was made, or was to
be made, at the Plaza. The situation was still entirely fluid.
This constant changing of conditions-all of which had an
impact upon the move as eventually made-went on and on.
At one point the relocation plan did not include the
engineering department, but with the strike making that
work impossible at Charleroi something had to be done.
First it was to use more and more contract employees in
Pittsburgh-no matter at what location. Then it became
convenient, and of course also necessary, to move the whole
engineering department. The first real picture of how things
finally settled down was seen in February after the contract
had been signed and after the strike had ended. I think the
only way to test the appropriate bargaining unit in this
refusal to bargain case is to look at how matters stood then.
Some unit jobs had been transferred to distant locations
other than Pittsburgh. Sales and purchasing work formerly
performed at Charleroi was being done elsewhere. The great
majority of the work at the Plaza was being done by contract
employees; precisely what the percentage was in February is
not clear, but by the time of the hearing in this case, June, 85
percent of the work was contracted out, and only 15 percent
carried on by direct employees. Against the approximately
44 unit employees still working at Charleroi, there are only
about 15 or 16 doing old unit work at the Plaza. And most
improtant of all the Plaza is 50 miles distant from the
certified unit.
I think, on the total record, including details too minute to
warrant repetition, that the change in the original bargaining
unit was so fundamental and dispersive that the Plaza
cannot, and could not when finally established, be called an
integral portion of the still-existing bargaining unit at
Charleroi. It follows that Respondent was not legally
obligated to agree with the Union's demands during the
early months of negotiations to extend recognition to the
Union as bargaining agent for whatever old unit work might
later be performed by its employees so far away. I deem the
case at bar illustrative of the "unusual circumstances" of
which the Supreme Court spoke in Brooks v. N.L.R.B., 348
U.S. 96(1954).
F. The Alleged Refusal To Bargain
A fair reading of all the testimony can only lead to the
conclusion that the union officers, whoever spoke on its
behalf, always knew the major move was inevitable and
' Cf. hiwn C outrrv Manufacluri,,g Company. Inc.. At at. 136 NL.RB
1022 (1962). Cf. also Fibrehoard Paper Producr Corporation, 130 NLRB 1558
(1961).
therefore did little to try to dissuade the Company from
taking all this work elsewhere. And this is understandable in
view of the widespread common knowledge among the
employees long before the election. In its brief Respondent
reiterates the contention that the Union did not come forth
with alternative proposals when told of the intended reloca-
tion. It argues from this that, if there was little talk of the
relocation plan as such, it was the Union, not the Company,
which refused to bargain. It even contends that the Union
waived any statutory right to bargain about the matter. At
the other extreme the General Counsel sees a refusal to
discuss the matter on the part of Respondent in the mere
fact it did not offer to abandon the plan entirely, or to
propose an alternative move more acceptable to the Union. I
think neither of these two extreme positions is supported by
the record. There certainly was no waiver, and as certainly it
cannot be said that mere insistence upon an expressed
economic position proves bad faith or negates the bargaining
process.
Curiously, Shosky's testimony is that there was talk about
the big question. "During negotiations we asked them if they
had checked around the Charleroi area, or that area, if there
were any available buildings and why they had to move to
the Pittsburgh facilities ... . They told me that they had
checked everything out. They told the committee and Mr.
Delsandro they had checked all the areas around Charleroi
and in Charleroi and they didn't find anything suitable."
One wonders why Delsandro, the professional staff represen-
tative of the United Steelworkers who acted as front
spokesman throughout the negotiations, and who was
present throughout the entire hearing, did not himself take
the stand to tell the story. Shosky is no more than an
ordinary employee of the Charleroi plant.
The employer did all it was required to do under the
applicable law.' It told the Union of its plans; it listened to
anything its representatives had to say, but it held firm to its
economic resolve. The argument, by the General Counsel,
that Respondent's failure to reconstruct the Charleroi
buildings so as to keep the work there proves a refusal to
bargain, carries little persuasion in these circumstances.
And, if there ever was a case in which the employer
bargained about the effects upon its employees of an
economically dictated change, this is it. I consider it of little
moment that by the time the bargaining was over, after
maybe 25 meetings, the Company conceded a union-security
clause to the Union. Little good this did the employees who
lost their jobs. But there was agreement upon preferential
hiring, in the vicinity of Charleroi, for laid off employees
should the Company open any nearby plant or need more
people in the Charleroi plant itself. There is nothing to
indicate that employees in the newly certified unit had
enjoyed a severance pay benefit before they voted for Local
8514 in 1976. Before the strike was over, the Union had won
this benefit for all technical and office employees in the
newly certified unit. And all those who never returned to
work after the strike have received such payment.
But the most convincing proof that Respondent bargained
about the effects of the relocation upon the employees is the
evidence that the reason why severance pay was given was
812
LEE NORSE COMPANY
expressly because the relocation was going to result in the
loss of jobs. There is even indication, not clear but very
suggestive, that employees adversely affected by the move
may have, again by agreement of the parties, received cash
payments over and above the severance money.' But
regardless of this vagueness in the testimony of the prosecu-
tion witnesses, the documents prove severance pay was tied
to job loss resulting from the move to Pittsburgh. Article
XIII of the contract signed at the end of the strike, and
before the 8(a)(3) charge was filed by the Union, reads:
Severance Allowance Schedule
When in the sole judgment of the Company, it decides
to close permanently the Plant or discontinue perma-
nently a department of the Plant or a substantial
portion thereof, and terminate the employment of
individuals, the Company shall provide the Union with
a minimum notice of sixty (60) days prior to such
closure or discontinuance. Employees terminated, ei-
ther directly or indirectly as a result thereof, shall be
entitled to the following severance allowance: Continu-
ous Company Service of I year but less than 3 years-2
weeks; 3 years but less than 5 years-4 weeks; 5 years
but less than 7 years-6 weeks; 7 years but less than 10
years-8 weeks; and 10 years or more-10 weeks.
Shosky testified:
We discussed payment of a severance in a five fifty pay, for these
employees that had not been paid to them, which was supposedly to be
paid to them upon settlement of the strike.
Q. Isn't it correct to say that the Local was refusing to sign the
agreement until the $550 and the severance pay was paid to all of the
employees?
A. Yes.
Q. What was the position of the Union on severance pay?
A. That if in no way we could negotiate for any kind of transfer for
these employees, to get these jobs down there, that there would have to he
something to take care of the employees displaced by this relocation. We
felt that by getting a couple of extra weeks severance pay. it might help
them out. too.
Q. And it made the severance pay applicable to any employee who was
affected by the opening of the Robinson Plaza location. isn't that correct?
A. Yes.
Silbaugh testified:
Q. Have you been paid a severance pay?
Shosky, president of the Charging party, who personally
signed both the agreement and several supplemental parts
earlier during the strike after taking part in all the talk that
led to the settlement, was asked on cross-examination had
not the Union fully negotiated and agreed to all issues
between the parties? He answered: "No, not really, we
thought we could come back later and negotiate about it."
This is not the only place in the transcript where Shosky
talked as though both the facts and his past intent were at
complete variance with what he said at the time of the events
and the documents he signed. It was an afterthought by the
Union to charge the Company with illegal denial of
employment after having signed for, and accepted, direct
monetary compensation. I find the evidence is insufficient to
support the affirmative burden of proof resting upon the
General Counsel. There therefore can be no finding that
Respondent refused to bargain with the Union in violation of
Section 8(a)(5) of the Act. Accordingly, I shall recommend
dismissal of the entire complaint.
ORDER'
I hereby recommend that the complaint be, and it hereby
is, dismissed.
A. Yes.
Q. How much was that'
A I think it was $1,228. I'm not sure of the figure exactlv
Q. Were you also paid the $550 bonus at the end of the strike'
A. That's correct.
Q. That was paid at the same time?
A. Same time.
Q. Same check?
A. Two checks.
Mendola testified
Q Did you receive the $550 a special bonus?
A. Yes
JuIXi. Ricci: What was the $550 for. do you know'?
TH- Wl I NI:SS: II was for if we accepted the contract and agreed to go
back to work, we would get the $550 as a bonus
In the event no exceptions are filed as provided by Sec. 102.46 of the Rules
and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
813