Mack Trucks, Inc.

National Labor Relations Board - Board Decisions

Nov 25, 1985

277 N.L.R.B. 711 (N.L.R.B. 1985)

MACK TRUCKS
Mack Trucks , Inc. and International Union, United
Automobile , Aerospace and Agricultural Imple-
ment Workers of America , United Auto Work-
ers Union, Local 76. Case 32-CA-3335
25 November 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND DOTSON
On 9 October 1984 Administrative Law Judge
Maurice M. Miller issued the attached decision.
The Charging Party filed exceptions and a support-
ing brief, the General Counsel filed cross-excep-
tions to the Charging ]Party's exceptions , and the
Respondent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings, 2
and conclusions and to adopt the recommended
Order.
We agree with the judge that the Respondent
did not violate the Act by refusing to bargain with
the Union over its plant closure and work transfer
decision. The critical facts relevant to the decision
are undisputed . In 1980 the economic decline in the
heavy truck industry and the Respondent ' s conse-
quent excess productive capacity led management
to believe the Respondent had over-invested in
capital assets . Facing the possibility of serious busi-
ness losses for 1980 and in the future, management
decided to sell the Hayward facility and transfer
Hayward production to the larger and more
modern Macungie facility in order to cut freight
and overhead costs . Clearly, the Respondent 's deci-
sion did not turn on bargaining unit labor costs and
therefore was not a mandatory bargaining subject.
Otis Elevator , 269 NLRB 891 (1984).3
i Absent a showing of prejudice to the Charging Party or any evi-
dence of impropriety on the part of counsel for the General Counsel, the
Respondent's counsel, or former Regional Attorney Alan Berkowitz, we
find no reason to reverse our earlier decision upholding the judge's dental
of the Charging Party's motions to disqualify counsel for the General
Counsel and the Respondent's counsel
2 Absent exceptions we pro forma adopt the judge's finding not to
defer the instant dispute to contractual arbitration procedures.
The Charging Party has excepted to some of the judge's credibility
findings . The Board 's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
Contrary to the judge's decision , the first amended charge in this case
was filed 26 May 1981 , and the complaint and notice of hearing was
dated 26 May 1981
3 Member Dennis agrees based on the analysis set forth in her separate
opinion in Otis Given the factors underlying the Respondent's decision,
711
We also agree with the judge that the Respond-
ent did not violate its duty to bargain with the
Charging Party over the effects of the plant clo-
sure and work transfer decision. After notifying the
Charging Party of its decision on 31 October 1980,
the Respondent and the Charging Party discussed
the effects of the decision in numerous meetings
and written exchanges before the Hayward plant
closed in June 1981. The Charging Party submitted
a number of proposals. The Respondent flatly re-
jected certain proposals seeking, modification of
provisions in the parties' current contract, a rejec-
tion that was privileged under Section 8(d) of the
Act. The Respondent bargained over the remaining
proposals, rejecting some, making counterproposals
to others, and reaching agreement with the Charg-
ing Party on several. Thus, the record fails to show
that the Respondent refused to bargain over the ef-
fects of the decision to close.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
the Union was not in a position to lend assistance or offer concessions
that reasonably could have affected the decision Ong Elevator, 269
NLRB at 897
Member Babson agrees with this conclusion because it is consistent
with the Supreme Court's opinion in First National Maintenance Corp v.
NLRB, 452 U S. 666 (1981), and because it is consistent with any of the
views expressed in the Board's decision in Otis Elevator
Because we find the decision was not a mandatory bargaining subject,
we find it unnecessary to pass on the judge's finding that the Charging
Party waived any right to bargain over the decision
Bernard T. Hopkins, for the General Counsel.
Mark S. Ross and Thomas E. Geidt, Esqs . (Schachter,
Kristoff, Ross, Sprague, & Curiale), of San Francisco,
California , for the Respondent.
Paul D. Supton and Victor J. Van Bourg, Esqs. (Van
Bourg, Allen, Weinberg & Roger), of San Francisco,
California, for the Complainant Union.
DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Administrative Law Judge. On
a charge filed January 15, 1981, and first amended
charge filed May 22, 1981, both of which were served,
the General Counsel of the National Labor Relations
Board caused a complaint and notice of hearing dated
May 27, 1981, to be issued and served on Mack Trucks,
Inc. designated as Respondent herein. Respondent was
charged with unfair labor practices within the meaning
of Section 8(a)(1) and (5) of the National Labor Rela-
tions Act, designated as the Act within this decision.
Specifically, the General Counsel charged, therein,
that, without prior notification to, or bargaining with,
Complainant Union herein, Respondent had announced
277 NLRB No. 84
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its decision to "shut down" its Hayward, California pro-
duction facility and to "transfer all the work" being per-
formed there to Respondent's Pennsylvania facilities; that
Complainant Union had, shortly thereafter, requested
Respondent to bargain regarding its decision; but that
Respondent has, to date, failed and refused to bargain.
The General Counsel charged, further, that Complainant
Union has, heretofore, requested Respondent to bargain
regarding the effects of its closure decision upon employ-
ees within the bargaining unit affected thereby, whom it
represented, but that Respondent has, to date, failed and
refused to bargain regarding that decision's conse-
quences. Finally, the General Counsel charged that Re-
spondent has failed and refused to furnish Complainant
Union with requested "economic data and other informa-
tion" which had provided the basis for its challenged
"shutdown" decision, plus further requested "informa-
tion" which Complainant Union required to facilitate
bargaining, regarding the effects of that decision on con-
cerned employees. Within its answer, duly filed, Re-
spondent conceded certain jurisdictional allegations in
the General Counsel's complaint, but denied the commis-
sion of unfair labor practices.
Following certain subsequent developments, which
will be noted hereinafter, the General Counsel caused an
amended complaint and notice of hearing, dated Septem-
ber 3, 1981, to be issued and served. Therein, the Gener-
al Counsel charged, inter alia, that without prior notifica-
tion to, or bargaining with, Complainant Union herein,
Respondent had announced its decision to "transfer and
consolidate work" then being performed within its Hay-
ward, California truck assembly facility to Respondent's
Pennsylvania facilities; that Respondent had, thereafter,
failed and refused to bargain with Complainant Union,
on request, regarding that decision or that decision's ef-
fects upon concerned employees; and that Respondent
has failed and refused to provide Complainant Union
with requested "information" regarding the basis for its
challenged "transfer and consolidation" decision, and
that decision's effects, with respect to concerned employ-
ees.
Within its further answer, duly filed, Respondent re-
newed its concessions, previously noted, with regard to
certain factual allegations within the General Counsel's
amended complaint. Respondent conceded that it had
proclaimed its intention to "transfer" production, with
respect to certain truck models, from Hayward, Califor-
nia, to Allentown, Pennsylvania, while "closing" its Hay-
ward production facility without prior notification to
Complainant Union; the firm, however, denies the com-
mission of any unfair labor practices.
On various dates between November 9, 1981, and Sep-
tember 1, 1982, a hearing with respect to this matter was
held in Oakland, California, before me. The General
Counsel, Respondent, and International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America, United Auto Workers Union,
Local 76, designated as Complainant Union herein, were
represented by counsel. All parties were afforded a full
opportunity to present evidence, to examine and cross-
examine witnesses, and to introduce evidence with re-
spect to pertinent matters. Since the hearing's close,
briefs have been received from the General Counsel's
representative, Respondent's counsel, and Complainant
Union's counsel. These briefs have been considered.
On the record made herein, testimonial and documen-
tary evidence received, and my observation of the wit-
nesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent raises no question, herein, with respect to
the General Counsel's present jurisdictional claims. On
the amended complaint's relevant factual declarations-
more particularly, those set forth in detail within the
second paragraph therein-which Respondent's counsel
concedes to be correct, and on which I rely, I conclude
that Respondent herein was, throughout the period with
which this case is concerned, and remains, an employer
within the meaning of Section 2(2) of the Act, engaged
in commerce and business activities affecting commerce,
within the meaning of Section 2(6) and (7) of the statute.
Further, with due regard for present applicable jurisdic-
tional standards, I find assertion of the Board's jurisdic-
tion in this case warranted and necessary to effectuate
statutory objectives.
II. COMPLAINANT UNION
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, United
Auto Workers Union, Local 76 is a labor organization,
within the meaning of Section 2(5) of the Act. Through-
out the period with which this case is concerned, Com-
plainant Union admitted certain employees at Respond-
ent's Hayward, California production facility to member-
ship.
III. PRELIMINARY MATTERS
A. Respondent's Motion for Deferral of this Matter to
Contractual Grievance and Arbitration Procedures
Within his opening remarks, when the formal hearing
with respect to this matter convened, Respondent's coun-
sel "requested" deferral of the questions presented for
disposition, to contractually defined grievance and arbi-
tration procedures. Collyer Insulated Wire Co., 192
NLRB 837 (1971). See, further Roy Robinson Chevrolet,
228 NLRB 828 (1977), in this connection. Essentially,
Respondent's counsel suggests that various questions pre-
sented for disposition herein were controlled by Re-
spondent's collective-bargaining contract, negotiated, for
a 3-year term which compassed the period material
herein, with Complainant Union's parent body, Local 76,
and several local labor organizations which have neither
been required nor invited to participate as parties herein,
but whose interests might be adversely affected by Board
determination regarding the questions presented Counsel
contends that these questions can best be resolved
through the grievance and arbitration procedures de-
tailed within the collective-bargaining contract noted.
Consistently with this concept, Respondent's counsel
suggests that Complainant Union might file current
MACK TRUCKS
grievances concerning Respondent 's purported failure to
consult or bargain regarding its challenged "consolida-
tion and transfer" decision, coupled with its purported
failure or refusal to bargain with respect to that deci-
sion's consequences.
On various grounds, the General Counsel and Com-
plainant Union noted their opposition , with respect to
Respondent 's motion. When it became clear, following a
comprehensive colloquy relative to Respondent 's motion,
that a proper disposition with respect thereto would
have to be predicated upon some factual record calculat-
ed to reveal the precise nature of the contractual rela-
tionship between the concerned parties-maintained
during the period with which this case is concerned-my
ruling on Respondent 's motion was reserved.
Subsequently, within this decision , my disposition,
with respect to Respondent 's motion , will be noted. Rul-
ings thereon will be set forth hereinafter.
B. Complainant Union's Motion to Disqualify the
General Counsel 's Representative and Respondent's
Counsel
1. Introduction
When Complainant Union's charges herein were first
filed , and the General Counsel's original complaint
issued , Respondent's designated legal representative was
Littler, Mendelson, Fastiff & Tichy, of San Francisco,
California ; Mark S. Ross, Esq. was the firm's counsel of
record. By June 22, 1981, when Respondent's answer to
the General Counsel 's original complaint herein was
filed, however, Ross had become associated with a New
York City law firm, Jackson, Lewis, Schnitzler & Krup-
man, which then maintained a San Francisco , California,
office.
Various factual determinations, presumptively relevant
because of their bearing on the particular matter now
being considered, which follow, derive from certain doc-
uments of record, representations by counsel proffered
during several record discussions with respect thereto,
and further representations within several documents
subsequently submitted for Board consideration . None of
the relevant , diapositive facts, recapitulated hereinafter,
have been disputed. For present purposes, they have
been considered established.
Prior thereto, sometime during April 1981, specifically,
Jackson , Lewis , Schnitzer & Krupman had approached
Alan Berkowitz, Regional Attorney for the Board's
Region 32, with a proffer of possible employment.
Berkowitz had then rejected the law firm's offer.
When the employment offer was made, determinations
with respect to further proceedings , bottomed on the
General Counsel 's original complaint herein , were pend-
ing with the Division of Advice, within the General
Counsel's Washington, D.C. office.
The Jackson, Lewis firm did not, then, represent Re-
spondent herein. As previously noted, their retainer as
Respondent 's substituted counsel was memoralized when
Respondent 's June 22, 1981 answer , with respect to the
General Counsel 's original complaint, was filed.
At some time, presumably during the period now
under consideration , Hopkins was named as the General
713
Counsel's representative, designated to try the questions
raised within the General Counsel's original complaint
herein. Further, within this time period, Complainant
Union's counsel Paul Supton had several conversations,
and further communications by letter, with Hopkins,
with Regional Attorney Berkowitz, and with the Board's
Regional Director, concerning various tactical consider-
ations which, within his view, might affect the General
Counsel's prospective hearing.
Pursuant to notice , a formal hearing , premised on the
General Counsel's September 3 first amended complaint,
commenced on November 9, 1981. The General Coun-
sel's presentation , with respect to his case in chief, was
concluded within the following day. Complainant
Union's counsel , thereupon , presented several witnesses;
thereafter he rested, likewise, reserving merely his cli-
ent's right to present evidence which might bear upon
Respondent's motion for deferral, pending their contro-
versy's possible disposition through contractual griev-
ance procedures , followed by arbitration. Pursuant to
consensual understandings previously reached between
Respondent 's counsel, Regional Attorney Berkowitz, and
the Board's Regional Director, with respect to which my
subsequent concurrence had been noted the hearing was
then recessed until November 17, 1981. Respondent com-
menced its defensive presentation, proffering testimonial
and documentary evidence on November 17, 18, and 19,
1981; the hearing was then recessed, with a scheduled
December 15 resumption date.
Sometime between November 17 and 19 (so the Gen-
eral Counsel 's representative reports, basing his report on
information and belief) the law firm of Jackson, Lewis,
Schnitzler and Krupman, acting through a New York
City partner, offered Regional Attorney Berkowitz a po-
sition with its San Francisco office. Shortly thereafter,
specifically on November 20 with the hearing herein re-
cessed, Hopkins and Supton conferred with Regional At-
torney Berkowitz regarding some possible rebuttal testi-
mony. Pursuant to consensual understandings reached
during their November 20 conference, Hopkins consulted
certain possible rebuttal witnesses. On November 30 or
December 1, during a conference with Berkowitz, Hop-
kins recommended that none of those considered possible
rebuttal witnesses should be called ; Regional Attorney
Berkowitz concurred.
Within a formal submission, hereinafter noted, the
General Counsel's representative has reported that subse-
quently his recommendation , coupled with his superior's
concurrence, was conveyed to Complainant Union's
counsel; the latter (so the General Counsel's representa-
tive reports , without challenge or dissent) likewise
"agreed" at the time , with his recommendation.
The General Counsel currently represents that to his
knowledge these were the sole conferences , concerning
the case, wherein Regional Attorney Berkowitz partici-
pated personally, following his November receipt of the
Jackson, Lewis firm's employment offer. Shortly thereaf-
ter, specifically on December 7, Berkowitz notified Re-
gional Office personnel regarding the offer, and reported
his acceptance decision. Within a formal Board submis-
sion, which will be noted hereinafter , the General Coun-
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sel represents that Regional Attorney Berkowitz prompt-
ly disassociated himself from all cases , then pending
within the Regional Office , wherein Jackson , Lewis,
Schnitzler & Krupman represented a concerned party,
specifically including the present case. The General
Counsel 's representative reports, further , that no subse-
quent official discussions concerned with trial strategy,
or any other aspect of this case, have involved
Berkowitz ' participation.
2. Complainant Union 's motions
a. Counsel 's motions summarized
On December 15, 1981 , when the hearing in this case
reconvened , Complainant Union's counsel presented two
related motions , for disposition forthwith on the record.
Specifically , counsel moved: First, that the General
Counsel's designated representative, who already had
completed his presentation of the General Counsel's case,
should be removed from further participation in the pro-
ceeding. I was requested , essentially , to direct that the
General Counsel of the National Labor Relations Board
designate a substitute representative , not a member of his
Region 32's office legal staff, to continue prosecution of
this matter, pending its final submission for Board dispo-
sition. Second, that Respondent 's counsel of record (spe-
cifically , Jackson, Lewis, Schnitzler & Krupman , repre-
sented by Mark S . Ross with Philip Rosen then serving
as cocounsel) be disqualified from further participation
herein. Inferentially , Complainant Union's counsel was
requesting that Respondent be directed to designate sub-
stitute counsel, whereupon suspension of the hearing
herein might be required-pending such a substitution-
should a postponement prove necessary , or be deemed
proper, under the circumstances.
These motions derived from counsel 's reported discov-
ery that Regional Attorney Berkowitz , pursuant to nego-
tiations privately conducted , would be leaving govern-
ment service shortly, as previously noted herein , and that
he would , shortly thereafter, become associated with the
law firm which, then , represented Respondent herein.
Complainant Union 's counsel suggested that these devel-
opments had generated "the appearance of a conflict of
interest" which might, potentially , prejudice Complain-
ant Union 's interest, with respect to those claimed unfair
labor practices which were herein being litigated.
In connection with his first motion , Complainant
Union's counsel noted that Regional Attorney Berkowitz
had been directly responsible for supervision of the Gen-
eral Counsel 's designated representative , herein , during
the proceeding 's prehearing investigative stages, and pre-
sumably "to some extent " while the matters involved
were being litigated . Complainant Union's counsel re-
ported, further , that he had, likewise , consulted with the
Regional Office's Regional Attorney beforehand, regard-
ing various matters directly related to the General Coun-
sel's trial preparation . Supton conceded that he had been
given reason to believe that, when Berkowitz determined
to leave Board service and become associated with the
law firm then serving as Respondent 's counsel, he had,
indeed, formally removed himself from further participa-
tion or contact with the matter . Complainant Union's
counsel suggested , however, that , despite the conceded
absence of any "suspicion of impropriety" with respect
to Regional Attorney Berkowitz ' conduct while func-
tioning as Hopkins ' supervisor , the "appropriate appear-
ance of prosecutorial vigor" could not be maintained
under the circumstances.
b. Disposition of the motions
On counsel 's motion calling for the removal of the
General Counsel 's representative , and the designation of
a substitute representative , I concluded that no sufficient
justification for such a requested substitution had been
shown. That portion of counsel's motion , therefore, was
promptly denied.
With respect to counsel 's motion calling for disqualifi-
cation of the law firm serving as Respondent 's counsel,
specifically because of Regional Attorney Berkowitz'
prospective affiliation with that firm, ruling was re-
served . With matters in this posture, the hearing was re-
cessed.
Shortly thereafter, while the hearing was in recess, I
was notified (during a telephone conference , with the
General Counsel's representative and Complainant
Union' s counsel participating) that Respondent 's princi-
pal counsel Mark S . Ross, together with various associ-
ates, had severed his professional relationship with Jack-
son, Lewis, Schnitzler & Krupman, Respondent's counsel
of record. The concerned parties, herein , were notified
that Counselor Ross and his associates had formed a new
San Francisco law firm, Schachter , Kristoff, Ross &
Sprague; counsel were advised that the newly formed
firm would continue to represent Respondent , with Ross
continuing to function as Respondent's principal counsel,
and that Region 32 's former Regional attorney would
become associated , shortly after New Year's Day, with
the newly formed law firm designated . Within several
documentary submissions subsequently provided, con-
cerned counsel have conceded that Berkowitz became
formally associated with Schachter, Kristoff, Ross &
Sprague on January 4, 1982.
With matters in this posture, Complainant Union's
second disqualification motion (with respect to which
ruling had been reserved) clearly required disposition.
On January 12, 1982, I issued my Order with respect
thereto; Complainant Union's motion , to disqualify Re-
spondent's counsel from further participation herein, was
denied . All concerned counsel were notified, however,
that steps should be taken calculated to preclude any
possible "appearance of impropriety" by preserving con-
fidentiality, so far as that might be possible, with respect
to whatever information former Regional Attorney
Berkowitz might have acquired , concerning substantive
or procedural matters affecting this proceeding , during
his period of public service. Counsel were further noti-
fied that steps should be taken (consistently with the
letter and spirit of Sec. of 102.119 within the Board's
Rules and Regulations , which, within defined limits, pro-
hibits personal practice before the Board "in any respect
or in any capacity" by former Board personnel) calculat-
ed to preclude any possibility that confidential informa-
tion acquired by former Regional Attorney Berkowitz
MACK TRUCKS
through public resources, with respect to this matter par-
ticularly, might be utilized to counter the General Coun-
sel's litigation position, or to support Respondent's de-
fense herein. To that end, Respondent's legal representa-
tives were directed to take appropriate action, whereby
former Regional Attorney Berkowitz, now associated
with them, would be forthwith "severed from any par-
ticipation" with respect to further proceedings in this
matter. Respondent's legal representatives were further
instructed that written notice should promptly be given
the Board, together with concerned subordinate repre-
sentatives of the Board and its the General Counsel, with
regard to those steps which they have taken, or would
take, to effectuate compliance with the severance re-
quirements specified.
c. Complainant Union's appeal
On January 13, 1982, pursuant to Section 102.26 of the
Board's Rules and Regulations, Complainant Union's
counsel filed a request for special permission to appeal
my dismissal of both his disqualification motions. Within
a telegram, dispatched on January 22, the Board granted
counsel's request.
Shortly thereafter, specifically on January 28, Com-
plainant Union's counsel submitted his appeal with re-
spect to both disqualification motions, and statements in
opposition with respect to my denials. Further, the Gen-
eral Counsel's representative filed a response with re-
spect to certain allegations within Complainant Union's
statement. Respondent's counsel proffered a submission
calculated to support my rulings on Complainant Union's
motions.
Within a telegraphic order, dispatched on March 12,
1982, the Board declared its decision, however, to deny
Complainant Union's appeal "at this time." A stay of the
hearing, which had been granted previously, was re-
scinded.
In his brief filed with me, previously noted herein,
Complainant Union's counsel has renewed his disqualifi-
cation motions. Concurrently with his submission that
Respondent has committed 8(a)(1) and (5) unfair labor
practices, counsel contends still that the disqualification
of the General Counsel's representative and Respondent's
counsel should be considered "essential" to assure Com-
plainant Union and the public that a fair hearing was
being provided.
3. Discussion
a. Introduction
Within my Order , directed to Complainant Union's
disqualification motions, I considered , on my own
motion, my power to dispose of such motions. Under
Section 102 .35 of the Board 's Rules and Regulations, ad-
ministrative law judges are, among other things, author-
ized:
(f) To regulate the course of the hearing, and if ap-
propriate or necessary, to exclude . . . counsel from
the hearing for contemptuous conduct.
715
(h) To dispose of procedural requests, motions, or
similar matters.
(m) To take any other action necessary under the
foregoing and authorized by the published Rules
and Regulations of the Board [emphasis added].
Section 102.44 of the Board's Rules and Regulations pro-
vides, further, that "misconduct at any hearing before an
administrative law judge" shall constitute grounds for a
summary exclusion from the hearing.
Under these Rules and Regulations, an administrative
law judge's specifically designated power to disqualify or
exclude counsel from further participation, during a
hearing currently in progress, seemingly would be limit-
ed to situations wherein counsel have been found guilty
of contemptuous behavior or particular misconduct. Ar-
guably, therefore, Board judges may be precluded from
directing counsel's disqualification, or exclusion from a
hearing in progress , upon other less egregious grounds.
Expressio unis est exclusio alterius . Whether, despite the
maxim noted, this Board's administrative law judges
may, nevertheless, exclude counsel for reasons not
grounded in misconduct or contemptuous behavior, by
virtue of their general authority "to regulate the course
of the hearing" or "to dispose of procedural matters" or
"to take any other action" considered necessary and
properly authorized by Board Rules, would however
seem to be, thus far, an open question. My research,
prior to my Order on Motion, failed to reveal any case
within which the question has been presented for Board
determination.
Herein, clearly, counsel's disqualification motions rest
on grounds never specified as sufficient for some attor-
ney's personal disqualification, or expulsion from a hear-
ing in progress, within this Board's published rules. I
have concluded nevertheless that Board administrative
law judges have, heretofore, been properly "authorized"
to consider and dispose of such motions, by virtue of
their generally specified duties and powers, previously
noted, set forth within Section 102.35 particularly. And
this Board's Order denying Complainant Union's appeal
presumably reflects a determination, sub silentio, that my
Order on Motion constituted action within the param-
eters of my delegated powers. Consistently with that
view, I have reconsidered Complainant Union's renewed
disqualification motions.
Such reconsideration, clearly, comports with the Su-
preme Court's decision in Firestone Tire Co, v. Risjord,
449 U.S. 368 (1981); the Court held, therein, that district
court orders denying motions to disqualify an opposing
party's counsel, in civil cases, are not appealable final de-
cisions, under 28 U.S.C. Sec. 1291 specifically. Though
this decision derived from the Court's construction of a
statute clearly inapplicable to administrative proceedings,
the Court noted, inter alia, that the propriety of disquali-
fication motion denials will often be difficult to assess
before their impact on underlying litigation may be eval-
uated. In civil cases, and presumably even in criminal
cases, this would normally become possible after final
judgment. Compare Flanagan v. United States, 52
U.S.L.W. 4201 (U.S. Supreme Court, Feb. 21, 1984).
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Herein, the propriety of my Order on Motion may con-
sistently be assessed with due regard for the complete
record, coupled with my decision thereon.
b. The motion to disqualify the General Counsel's
representative
(1) Complainant Union's contention
Complainant Union's motion, that the General Coun-
sel's representative herein should be replaced , rests on
several closely related contentions. Within his appeal, di-
rected to my Order on Motion, Complainant Union's
counsel suggests: First, that former Regional Attorney
Berkowitz supervised the General Counsel's representa-
tive, while preparations were being made for the hearing
herein and during that hearing's early stages; this, while
Berkowitz had some "apparently ambiguous relation-
ship" with the parties; Second, that Berkowitz participat-
ed personally in several Regional Office tactical deci-
sions, affecting the hearing, whereby Complainant Union
considered its litigation interests prejudiced; Third, that,
from Complainant Union's perspective, the General
Counsel 's case preparation and presentation conveys "the
appearance of a lack of adequate prosecutorial vigor"
since the General Counsel's representatives had "con-
flicting interests" throughout the period noted. For these
reasons, Complainant Union's counsel submits that this
matter should be tried de novo by a different General
Counsel 's representative.
However, with due regard for the record, considered
in totality, coupled with relevant submissions, proffered
by counsel dehors the formal hearing record, in support
of their respective positions, the undersigned finds no
merit in Complainant Union's motion; my previous denial
of that motion is hereby reaffirmed.
(2) Relevant developments
At some point, closely proximate presumably to the
General Counsel's September 3, 1981 amended com-
plaint's issuance date, Bernard Hopkins, Esq. was desig-
nated trial counsel herein. As such, concededly, he func-
tioned subject to Regional Attorney Berkowitz' over-
sight, generally.
This factual finding , and most of the factual determina-
tions which follow, derive from the record, logical infer-
ences drawn therefrom , factual recitals within counsel's
submissions in support of Complainant Union's appeal,
and the General Counsel's responses with respect there-
to. In most cases, the General Counsel 's factual recitals
cover situations wherein Complainant Union 's counsel
participated, or with respect to which he was promptly
notified. None of therelevant developments reported by
counsel, for either party, have been significantly disput-
ed. For present purposes they have been considered es-
tablished.
On various dates, then , between September 3 and the
hearing's scheduled commencement date, Complainant
Union's counsel, Hopkins and Berkowitz conferred: First,
with regard to Complainant Union's request that the
General Counsel 's representative should summon three
presumably material union witnesses during his case in
chief (Hopkins decided, presumably with his supervisor's
concurrence, that two of these suggested witnesses
should be summoned in rebuttal merely ); Second, with
regard to Respondent 's request that its defensive presen-
tation should be heard in Allentown , Pennsylvania, (con-
sistently with Supton's objection, Regional Office man-
agement ultimately rejected this request); Third, with
regard to Respondent 's request, alternatively , that the
scheduled hearing be recessed , following the General
Counsel 's and Complainant Union's presentations , so that
Respondent's prospective Allentown, Pennsylvania wit-
nesses might formulate travel plans , calculated to mini-
mize their periods of required absence from Respondent's
corporate headquarters while attending the General
Counsel ' s Oakland, California hearing for testimonial
purposes . The schedule arrangement in question had
been reached , ex parte, between Respondent's counsel
and Regional Attorney Berkowitz; Complainant Union's
counsel had not been consulted beforehand. When Re-
spondent ' s request was referred to me, for prehearing
disposition, Complainant Union's timely proffered objec-
tions were , however , considered . I granted Respondent's
request.
These several developments, clearly, preceded the hear-
ing's scheduled November 9 commencement . Necessari-
ly, therefore, they preceded the November 17-19 renewal
of Jackson, Lewis, Schnitzler & Krupman's employment
offer, previously noted, directed to Regional Attorney
Berkowitz personally.
That offer, likewise, followed the General Counsel's
November 10 completion of his case in chief, and Com-
plainant Union 's decision to rest, with reservations, fol-
lowing Supton's testimonial proffers through two wit-
nesses.
I note, in this connection , that, despite the General
Counsel's previous determination that two Union repre-
sentatives suggested as material witnesses should be re-
served for possible rebuttal testimony-counsel for Com-
plainant Union could have summoned them, at this stage.
Complainant Union's counsel , however, made no effort
to present them; nor did he request a postponement, so
that they might be summoned.
With matters in this posture , the hearing was recessed,
as previously noted. This was done, consistently with the
schedule arrangement suggested , prior thereto, by Re-
spondent 's counsel, which Regional Attorney Berkowitz
had accepted , and I had confirmed within my prehearing
directive hereinabove noted.
When the hearing reconvened on November 17, Re-
spondent commenced its defensive presentation. Three
full hearing days were completed . The matter was then
continued , with a scheduled December 15 resumption
date.
It was during this period, between November 17 and
November 19, that Regional Attorney Berkowitz re-
ceived the Jackson, Lewis firm's renewed offer. As pre-
viously noted, the General Counsel's case in chief pres-
entation and Complainant Union's supplementary presen-
tation had, prior thereto, been completed.
Subsequent to his receipt of Jackson, Lewis, Schnitzler
& Krupman's offer, Regional Attorney Berkowitz had
but two conceivably significant contacts with the present
MACK TRUCKS
matter. On November 20, Hopkins and Supton conferred
with Berkowitz regarding some conceivable rebuttal tes-
timony which three union representatives, Paul Snyder,
James Schuetz, and Steven Yokich, might provide. Con-
sensual understandings were reached that Hopkins would
communicate with them to determine their respective
recollections with respect to certain presumptively rele-
vant and material matters. Complainant Union's counsel,
I find, proffered no demurrer. Some 10 days thereafter,
Hopkins reported to Berkowitz; he recommended that
Snyder, Schuetz, and Yokich should not be summoned as
rebuttal witnesses. The Regional Attorney concurred.
Later, Hopkins reviewed his conversations with Snyder,
Schuetz, and Yokich, during a conversation with Supton.
According to the General Counsel's representative
(whose factual report with regard to their conversation
has not, herein, been challenged, Complainant Union's
counsel "agreed with his assessment" that these union
representatives need not be, or should not be, called.
On December 7, 1981, while the hearing herein was
still in recess, Berkowitz, as previously noted, notified
the Regional Office management and personnel regard-
ing Jackson, Lewis, Schnitzler & Krupman's most recent
offer, and his decision to accept. According to Hopkins
(whose factual report with respect thereto stands in the
record without contradiction) the Regional Attorney
promptly disassociated himself from all Regional Office
cases wherein the designated law firm represented any of
the parties; his withdrawal from participation therein, of
course, encompassed the present case. Consistently with
his declared purpose, I find, Berkowitz refrained from
participation in subsequent discussions regarding Hop-
kins' trial strategy herein; nor did he participate in dis-
cussions regarding any other significant "aspect" con-
cerned with the present matter'.
On December 15, when the hearing reconvened, Com-
plainant Union's counsel presented his motion with
regard to the General Counsel's representation. Upon
due consideration, previously noted herein, that motion
was denied.
Shortly thereafter, however, Complainant Union's
counsel renewed his motion, contending that two further
developments described by Hopkins (during conversa-
tions off the record) had confirmed "the appearance of
[some] potential conflict of interest" sufficient to shake
Complainant Union's faith with regard to the General
Counsel's prosecutorial vigor. With respect thereto, rep-
resentations proffered for the record by Hopkins and
Supton, which reflect no significant conflict, warrant de-
terminations:
First, that Mr. Hopkins had, in casual office con-
versation with Mr. Berkowitz, mentioned Respond-
ent's presentation of evidence, during the hearing,
regarding certain 1958 contract negotiations be-
tween the parties, in support of the firm's proffered
"waiver" defense, to be noted hereinafter; that Mr.
Berkowitz had, thereupon, facetiously commented
that-if Respondent considered such testimony a
possibly "monumental" defense, he would have ex-
pected Mr. Ross-rather than Philip Rosen, his then
associate counsel-to present it; that Mr. Hopkins
717
had relayed Regional Attorney Berkowitz' com-
ments to Mr. Supton, likewise, with facetious intent;
and that Supton had vouchsafed a humorously-
couched response.
Second, that Regional Office management and
personnel-never named-had told Mr. Hopkins
they were "disturbed" because of the time being
consumed by the present case, which would "prob-
ably" render Mr. Hopkins unavailable to try a
scheduled January 19, 1982, case elsewhere.
Despite these representations, proffered by counsel, I
concluded that no sufficient warrant had been shown for
a determination that there should be a substitution of the
General Counsel's representative. Complainant Union's
renewed motion, with respect thereto, was denied.
Respondent's defensive presentation, following the
hearing's December 15 resumption, compassed, inter alia,
testimonial references to relevant developments with re-
spect to which Union Representatives Schuetz and
Yokich had participated. Consequently, during a hearing
recess which followed, Hopkins, Regional Director
Scott, Deputy Regional Attorney Eggert, and Complain-
ant Union's counsel conferred with regard to summoning
these union representatives as rebuttal witnesses. Consen-
sual understandings were reached that Schuetz and
Yokich would be requested, preliminarily, to provide
"affidavits" detailing their relevant recollections.
About this time, while the hearing herein was in
recess, Respondent's principal counsel, Ross, severed his
association with Jackson, Lewis, Schnitzler & Krupman.
As previously noted, Ross, together with various associ-
ates, formed a new law firm, Schachter, Kristoff, Ross &
Sprague, effective January 1, 1982; this newly formed
firm, nevertheless, continued to represent Respondent,
with Ross continuing to function as Respondent's princi-
pal counsel. On January 4, 1982, pursuant to previous ar-
rangements, Berkowitz became associated with Ross'
newly formed law firm.
On January 12, when the hearing, herein, reconvened,
my Order on Motion was pronounced from the bench; it
was later served, in written form, on concerned parties
and their legal representatives.
As previously noted, Complainant Union's request to
appeal, withrespect thereto, was granted on January 22;
further hearing sessions were stayed, pending the Board's
disposition. Following the Board's March 12 decision to
deny Complainant Union's appeal "at this time" the hear-
ing stay was rescinded; Respondent's defensive presenta-
tion resumed. When it concluded, the General Counsel's
representative, consistently with consensual understand-
ings which had previously been reached with Complain-
ant Union's counsel, finally presented Union Representa-
tive Schuetz as a rebuttal witness.
(3) Conclusion
As previously noted, Complainant Union's counsel,
herein, cites no "actual" improprieties chargeable to Re-
gional Attorney Berkowitz or the General Counsel's rep-
resentative. Rather, he seeks Hopkins' replacement
merely because Regional Attorney Berkowitz' limited
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participation in this case ' s preparation and presentation
had, under the circumstances herein noted, created "the
appearance of conflicting interests" and "the appearance
of a lack of adequate prosecutorial vigor" therein. With
matters in their present posture, however , no showing
has been made within my view sufficient to suggest "ap-
pearances" conceivably prejudicial to Complainant
Union 's position . Clearly , Regional Attorney Berkowitz'
concededly close supervisory role, related directly to this
case 's preparation and the General Counsel's primary
presentation , was confined largely to the period before
Jackson, Lewis, Schnitzler and Krupman 's November
1981 employment offer. Whatever contribution
Berkowitz may have made thereafter with regard to
Hopins' trial strategy decisions prompted no immediate
protest, so far as the record shows, from Complainant
Union's counsel. Further, whatever trial strategy deci-
sions counsel may have reached-following Berkowitz'
receipt of Jackson, Lewis, Schnitzler & Krupman's No-
vember offer-were, so the record herein shows, subse-
quently reviewed by the Board's Regional Director, with
Supton, a conference participant . In consequence, Inter-
national Represenative Schuetz was , ultimately, sum-
moned as a rebuttal witness.'
Though the General Counsel's decision not to call
Paul Snyder, with respect to which Berkowitz conceded-
ly participated, was never reversed, that decision could
hardly be considered a factor which significantly affect-
ed this litigation's course. Clearly , Snyder's testimony
would have been cumulative, merely.
With matters in this posture, it would seem to be clear
that, when Complainant Union's December 15 motion,
now under consideration,' was proffered, neither the de-
velopment of the record herein, nor the substantive con-
tent of General Counsel's case, had been "unalterably"
determined. And, with due regard for the testimonial and
documentary record which is now complete no deficien-
cies, with respect to the General Counsel's prosecution
of the present matter, have, within my view, been
shown.
I note, particularly, in this connection , that Complain-
anr Union ' s counsel , while this case was being heard,
consistently demonstrated both competence and vigilant
care , for the protection of Complainant Union's interest.
Nevertheless, he had proffered no comments, for the
record, regarding the General Counsel's failure to dem-
onstrate "prosecutorial vigor" before his discovery that
Regional Attorney Berkowitz would be leaving the
agency . In support of his appeal, directed to my denial of
his motion for Hopkins ' replacement , he cited no evi-
dence which the General Counsel 's representative could
or should have introduced but did not; further, Com-
plainant Union 's counsel proffered no explanation for his
failure to produce possibly "missing" relevant evidence
directly following the General Counsel's case in chief
presentation.
With respect to Complainant Union's renewed motion,
which concededly followed Hopkins ' report to Supton,
during casual conversations : ( 1) that Regional Office per-
sonnel were concerned regarding the time which the
hearing, herein , was taking , and its possible impact on
the Region's trial calendar management; and (2) that
Berkowitz had responded to a light-hearted comment, re-
garding a portion of Respondent ' s defense , with a face-
tious remark , little need be said . Neither of these conver-
sational exchanges, within my view, could, reasonably,
be considered sufficiently significant to suggest deriva-
tion from some possible conflict of interest , or some de-
termination to proceed with less-than -requisite prosecuto-
rial vigor.
Mindful of these considerations, I find nothing within
the present record, or relevant submissions by counsel,
which would warrant a reversal of my conclusion that
Complainant Union has suffered no legal prejudice
through Hopkins' continued participation as the General
Counsel's representative . My denial of Complainant
Union's motion , which seeks Hopkins ' replacement, fol-
lowed by de novo proceedings conducted with a differ-
ent the General Counsel's representative , stands reaf-
firmed.
c. Complainant Union's motion for the disqualification
of Respondent's counsel
(1) Developments subsequent to Complainant
Union's motion
As previously noted, Regional Attorney Berkowitz
had notified the Regional Office's management and staff,
on December 7, 1981, regarding his decision to leave the
agency and become associated with Jackson, Lewis,
Schnitzler & Krupman, then serving as Respondent's
counsel . The General Counsel's representative has prof-
fered , without challenge or contradiction , representations
that Berkowitz promptly "removed" himself from any
participation in cases involving that firm's clients , includ-
ing the instant case. Thereafter, specifically on January
4, 1982, Berkowitz became associated , formally, with
Schachter, Kristoff, Ross & Sprague , comprised primari-
ly of attorneys formerly associated with the Jackson,
Lewis firm . Following the new firm's formation, Re-
spondent had substituted it for Jackson , Lewis,
Schnitzler & Krupman, with Ross continuing to function
as its principal counsel , herein.
Concurrently with Berkowitz ' affiliation, his new
firm-so their submission in response to Complainant
Union's appeal shows-implemented a screening proce-
dure calculated to guarantee that he would be isolated
from the present case, and from every other Board
matter, then being handled by the firm, which had been
pending before the Board's Region 32 Office during his
tenure. This screening procedure , commonly designated
a prophylactic "Chinese Wall" by judges and scholarly
commentators , compassed the following safeguards:
1. Berkowitz was to have no direct or indirect contact
with any matter or case, of any kind, pending within his
Regional Office during his period of Board employment.
2. All case files, documents and materials pertaining to
matters pending within the Region 32, during Berkowitz'
tenure, were to be maintained in the exclusive custody of
the attorney primarily responsible for their handling.
3. Such files, documents and materials , including those
pertaining to the firm's representation of Respondent
herein, were to be kept under lock and key. Access to
MACK TRUCKS
such materials was to be denied any persons lacking ex-
press permission granted by the attorneys with primary
responsibility for the handling of specified matters.
Berkowitz, particularly, was to be denied contact with
files, documents or materials 'pertaining to matters pend-
ing within his Regional Office while he was Regional
Attorney, or during his period of Board employment.
4. Such matters were not to be discussed within
Berkowitz ' presence or earshot.
These directives were communicated to the new firm's
staff members within a January 4 memorandum. They
were, likewise, communicated to Berkowitz, by letter, on
that date. In connection with the last directive noted,
Berkowitz was further notified that should any discus-
sion or communication with respect to proscribed mat-
ters take place in his presence , or within his hearing, it
would be incumbent upon him to either request the im-
mediate cessation of such discussion or communication,
or to immediately leave the area, thereby precluding any
potential involvement , on his part, with respect to such
discussions or communications.
In promulgating these January 4 directives , and estab-
lishing safeguards calculated to preclude "even the mere
appearance of any conflict or impropriety" Schachter,
Kristoff, Ross & Sprague anticipated my January 12 dis-
position of Complainant Union's motion that Respond-
ent's newly retained law firm should be disqualified from
further participation herein. While withholding concur-
rence with respect to Complainant Union's motion, I di-
rected, therein, that Berkowitz should be "severed from
any participation" with respect to Respondent's contin-
ued representation by his firm, and that written notice
should be given the Board, and the General Counsel's
representatives, regarding whatever steps had been taken
to assure compliance with my severance requirement.
Schachter, Kristoff, Ross & Sprague's submission in re-
sponse to Complainant Union's appeal reported its Janu-
ary 4. implementation of various screening requirements,
herein noted; copies of that submission were, so the doc-
ument shows, served upon the General Counsel's repre-
sentative and Complainant Union's counsel.
Within his submission , in response to Complainant
Union's appeal, Ross claims, without challenge or con-
tradiction , that his firm 's screening procedure has been
"scrupulously followed " since its implementation. Re-
spondent's counsel notes, further, Complainant Union's
failure to claim "actual" improprieties , coupled with
Supton's failure to cite evidence sufficient to warrant any
"suspicion" relative thereto. Within his appeal, Com-
plainant Union's counsel had noted, merely, that when
Berkowitz joined Respondent's newly retained law firm:
[H]e took with him a full knowledge of the General
Counsel's case, the Charging Party's case, and the
respective strength and weaknesses of each.
In consequence , Complainant Union suggests, merely,
that the relationship between Berkowitz and Respond-
ent's current legal representative should be considered
"rife with the possibility of improper disclosures" regard-
ing confidential and privileged information.
719
(2) Complainant Union 's contentions
Essentially, Complainant Union's second disqualifica-
tion motion derives from a contention that Respondent's
continued representation by counsel from a law firm
with which the Region 32's former Regional attorney
has recently become associated would flout Canons 1, 4,
5, and 9 of the American Bar Association's Code of Pro-
fessional Responsibility. Among other things, those
Canons provide that:
Canon 1. A lawyer should assist in maintaining
the integrity and competence of the legal profession
Canon 4. A lawyer should preserve the confi-
dences and secrets of a client.
Canon 5. A lawyer should exercise independent
professional judgment on behalf of a client ... .
Canon 9. A lawyer should avoid even the appear-
ance of a professional impropriety.
In this connection, Disciplinary Rule 9 -101(B), drafted
to particularize the Canon last designated , would require
a lawyer who has left public employment to refrain from
accepting private employment, requiring his personal
services, related to any matter with respect to which he
had substantial responsibility while he was a public em-
ployee, since the acceptance of such employment would
create the appearance of impropriety even where none
exists. Concurrently, related Disciplinary Rule 5-1105(D),
considered in conjunction with DR 9-10] (B)'s mandate
provides, further, that, when a lawyer is required to de-
cline or withdraw from employment consistently with
some particular disciplinary rule, no partner or associate
of his, or his firm, may accept or continue such employ-
ment.
Consistently with the several Canons and Disciplinary
Rules noted, set forth within the Code of Professional
Responsibility previously noted, several United States
Courts of Appeals have held that whenever some attor-
ney, who had previously represented a particular client
in connection with civil litigation, can properly be found
personally disqualified from functioning, subsequently, as
counsel for that former client's current legal adversary
the disqualified attorney's current law firm associates
should, likewise, be considered barred from contesting
the claims of their disqualified associate 's former client.
See Trone v. Smith, 621 F.2d 994, 999 (9th Cir. 1980),
citing Government of India v. Cook Industries, 569 F.2d
737, 740 (2d Cir. 1978), and NCK Organization Ltd. v.
Bergman, 542 F.2d 128, 132-134 (2d Cir. 1976). In that
connection, so the cases hold, courts will not concern
themselves with respect to whether confidential informa-
tion, acquired by a disqualified attorney during a prior
representation, may or may not have been shared with
other members of the firm with which such an attorney
has newly become associated; the firm, as a whole, will
be considered disqualified, whether or not that firm's
other members were, actually, exposed to such confiden-
tial information, See Westinghouse Electric Corp. v. Kerr
McGee Corp., 580 F.2d 1311, 1318 (7th Cir, 1978);
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schloetter Y. Railoc of Indiana, 546 F.2d 706, 710 (7th Cir.
1976), in this connection.
In Trone v. Smith, supra, the Ninth Circuit Court of
Appeals did not reach, and therefore expressed no view,
regarding the conceivably dispositive relevance of the
prophylactic "Chinese Wall" theory, previously noted
herein, pursuant to which disqualification motions have
been resisted because supposedly "infected" attorneys
had, purportedly, been screened or insulated from all
participation in, and information regarding , current cases.
See 621 F.2d 994 at 999 fn. 4. See likewise Paul E.
Iacono Structural Engineer, Inc. v. Humphrey, 113 LRRM
3516, 3522 (9th Cir. 1983), in this connection.
Disqualification, so the courts held, should not depend
on "proof' regarding the abuse of confidential informa-
tion. Because of the sensitivity of client confidences and
the profession's need to avoid even the appearance of a
breach of confidence, disqualification has been consid-
ered required whenever lawyers change sides in factual
related cases.
(3) The Board's role
Without regard for possibly relevant Federal or state
court decisions, however, this Board has never, so far as
present research discloses , considered itself responsible
for policing or requiring compliance with the American
Bar Association's Code of Professional Responsibility,
generally, by legally qualified counselors who might rep-
resent respondents, complainant unions, concerned per-
sons, or various other parties, in connection with unfair
labor practice or representation proceedings. Certainly,
this Board has never disqualified an entire law firm from
defending a respondent charged with unfair labor prac-
tices, based on that firm's employment of a former Board
lawyer,
Indeed, the Board has, frequently, noted its willingness
to receive and consider competent and relevant evidence
proffered by a lawyer-witness, presumably contrary to
Canon 5 of the Code of Professional Responsibility, Ethi-
cal Considerations EC 5-9 and EC 5-10 promulgated in
connection therewith, and Disciplinary Rule 5-101(B)
and 5-102 derived therefrom, See Operating Engineers
Local 9 (Fountain Sand Co.), 210 NLRB 129 fn. 1, and
cases cited , in this connection.
Whether this Board should, now, shoulder that respon-
sibility-particularly with regard to situations which
present the particular problem which counsel 's pending
disqualification motion addresses-raises a significant
policy question. With respect thereto, this Board's deci-
sions, heretofore rendered, provide no discernible guid-
ance.
Within its submission, Respondent suggests that this
Board should refrain, generally, from disqualifications
based on purported violations of ethical canons. Rather,
so Respondent 's counsel suggests , the enforcement of
such canons should be left to the courts, state bar asso-
ciations functioning consistently with court rules, or
some comparably appropriate forums.
Counsel notes that the sole mechanism by which the
Board has, thus far, sought to regulate the conduct of its
attorneys who enter private practice has been Section
102.119 of its Rules and Regulations; that section prohib-
its any former Board attorney from practicing before the
Board "in any respect or in any capacity" related to any
case or proceeding which may have been pending in any
Regional Office to which he had been attached, during
his period of Board employment. Even so, the Board
has, with judicial concurrence, shown some reluctance to
permit Section 102.119's invocation, when that would
impede or obstruct the processing of pending cases. See,
e.g., Alumbaugh Coal Corp., 247 NLRB 895 (1980), enfd.
635 F.2d 1380 (8th Cir. 1980); the Board held, therein,
that a former Board attorney's conduct, thought technically
violative of Section 102.119's prohibition, had neither
prejudiced the concerned respondent's substattive rights
under the statute, nor so tainted the proceedings as to
deny due process of law.
Specifically, Respondent's counsel suggests, therefore,
that this Board, with regard to Canons of Ethics, should
eschew a policeman's role. Counsel cites a putative
trend, manifested within several Federal court decisions
concerned with attorney disqualification motions, which
suggests the desirability of deference to state disciplinary
procedures, rather than procedures which could preclude
the prompt disposition of pending cases, generate sub-
stantial litigation expenses , and deprive respondents of
their right to choose counsel. See New York v. Nyquist,
590 F.2d 1241, 1246 (2d Cir. 1979); Armstrong v. McAl-
pin, 625 F.2d 433, 445-446 (2d Cir. 1980), in this connec-
tion.
I note further that the Association's Code of Profes-
sional Responsibility constitutes a suggested body of ethi-
cal principles and rules, rather than a legally binding
compendium . Since "advance notice is essential to the
rule of law," and since "it is desirable that an attorney or
client be aware of what actions will not be counte-
nanced," the Code's provisions, standing alone, may
present no just or proper basis for a law firm's disqualifi-
cation. Iacono Structural Engineer, Inc. v. Humphrey,
supra at 3519. Pending the Code's adoption as law "by
the courts, the legislature, or the regulatory authority
charged with the discipline of lawyers in a particular ju-
risdiction" its canons and disciplinary rules might well be
considered merely hortatory, not proscriptive.
In my view, however, Respondent's suggestion that
this Board should, within its discretion, refrain from dis-
qualifying law firms, based on their purported disregard
for ethical canons, merits rejection. While no cases have
been cited, herein, where quasi-judicial regulatory bodies
rather than courts have taken comparable action, this
Board clearly possesses the requisite power. Should it re-
frain, nevertheless, from that power's exercise , concerned
parties desirous of relief, from litigation developments
which might potentially at least generate conflicts or
breaches of confidence would, necessarily, find them-
selves required to seek such relief through ancillary pro-
ceedings, within some different forum. Board proceed-
ings would, thereby, become susceptible to collateral
challenges . And such challenges , should they be permit-
ted, would clearly flout both the statute's letter and
spirit.
Regarding the Code's relevance, little need be said.
See Iacono Inc. v. Humphrey, supra at 3519-3520. There-
MACK TRUCKS
in, the Ninth Circuit of Appeals found that California
courts have frequently cited and applied Code provi-
sions, as a source of ethical principles and rules govern-
ing California lawyers; that a Federal district court's reli-
ance on the Code, when confronted with a disqualifica-
tion motion bottomed upon its local rule, was therefore
proper; and that Code requirements need not be specifi-
cally "adopted" before being given force. Regarding the
]present case, therefore, this Board's power to consider
Complainant Union's motion, and determine its disposi-
tion, cannot be doubted.
(4) The merits of Complainant Union's motion
With matters in this posture, the substantive merits of
Complainant Union's disqualification motion, specifically
with reference to Schachter, Kristoff, Ross & Sprague,
and Mark Ross, Esq., Respondent's principal counsel,
remain for consideration.
As previously noted, Complainant Union's counsel nei-
ther alleges specific improprieties, nor a suspicion there-
of, related to Berkowitz' career change. Counsel con-
tends merely that the situation presents some "appear-
ance of impropriety" sufficient to taint the proceedings.
In support of this contention, Complainant Union's coun-
sel suggests, merely, that Berkowitz continued to discuss
or participate in discussions, relative to trial strategy,
herein, while he was considering an employment offer
conveyed by Respondent's law firm. Complainant Union
proffers no charge that Berkowitz' knowledge, relative
to the General Counsel's theories and trial strategy, was
actually communicated to members of the law firm, or
firms, successively serving as Respondent's legal repre-
sentatives, either before or subsequent to his January 4
affiliation with the Shachter, Kristoff firm.
Normally, knowledge possessed by one attorney,
within a firm, will be presumed to have been shared with
his or her law firm associates. This presumption, howev-
er, may be rebutted. Novo Terapeutisk Laboratorium v.
Baxter Travenol Laboratories, 607 F.2d 186, 197 (7th Cir.
1979). The question which, therefore, must be considered
is- Whether the presumption noted will be effectively re-
butted by establishing that the particular attorney who
must properly be personally disqualified has been
"screened" from all participation in, or information
shared, with regard to a given case, and whether the dis-
qualification of some entire law firm, based on the prior
affiliation of such a member, may, thereby be forestalled.
See, generally, Chinese Wall Defense to Lawyer Disqualifi-
cation, 128 U.Pa. L.Rev. 677 in this connection.
'These questions have, specifically, concerned courts
and commentators whenever the particular disqualified
attorney's prior representation derived from his Govern-
ment service. See American Bar Association Committee on
Ethics and Professional Responsibility, Formal Opinion
342, pp. 11-12, reprinted in 62 American Bar Association
Journal, 517, 521, (1976), in this connection. Therein, the
Association's committee noted that a literal reading of
Disciplinary Rule 9-101(B) of the Code of Professional
Responsibility, taken in conjunction with DR 5-105(D),
would arguably warrant the disqualification of private
law firnns, in many situations where former Government
attorneys have become affiliated with such firms. The
721
committee recognized, however, that with particular ref-
erence to Government attorneys who may have entered
private practice significant policy considerations militate
against their newly joined law firm's disqualification.
Ibid., 4-5. Persuaded by these policy considerations, the
Association committee concluded that-when sufficient-
ly stringent "screening" procedures have been developed
and put into effect, calculated to isolate a former Gov-
ernment lawyer from matters being handled by the firm,
which had been pending within his agency, and when
the Government agency which had employed him prof-
fers no objection to his new law firm's continued partici-
pation in litigation related to such matters-disqualifica-
tion of the law firm should not be considered required or
warranted. See ibid., 11-12, in this connection.
Herein, this Board was, strictly speaking, Berkowitz'
former client. Neither a Board representative nor the
General Counsel's representative functioning as this
Board's prosecutor has challenged the continued partici-
pation herein of Respondent's law firm. Nevertheless,
since the General Counsel's representatives have been
proceeding upon Local 76's charges, Complainant Union
may properly be considered Berkowitz' former "client"
for present purposes. See Iacono v. Humphrey, supra at
3520 fn. 7. Under these circumstances, Formal Opinion
342's conclusions, hereinabove noted, might arguably be
considered subject to challenge. Nevertheless, for vari-
ous reasons noted hereinafter I find Complainant Union's
presumptive posture as Berkowitz' former client neither
controlling, nor persuasively diapositive.
Since Formal Opinion 342's publication, several circuit
courts of appeals have, explicitly or implicitly, noted
their willingness, likewise, to sanction screening proce-
dures, calculated to avoid an entire law firm's disqualifi-
cation, based solely on some former Government law-
yer's newly confirmed association therewith. Greitzer &
Locks v. Johns-Manville Corp., (4th Cir. 1982), slip op. p.
7; Armstrong v. McAlpin, 625 F.2d 433, 442-445 (2th Cir.
1980); New York City v. Nyquist, 590 F.2d 1241, 1247 (2th
Cir. 1979). Specifically, these courts have noted that law
firm disqualifications predicated upon the disqualification
of a single member or associate might well be considered
forestalled or precluded by appropriate screening when
"truly unethical conduct" has not taken place; when no
"actual prejudice" has been shown; when no "threat of
taint" likely to affect the trial process can be found; and
when disqualification motions derive, merely, from some
superficial "appearance of impropriety" which a knowl-
edge of the facts would dissipate. Compare LaSalle Na-
tional Bank v. County of Lake, 703 F.2d 252, 257-259 (7th
Cir. 1983); see likewise Kesselhaut v. U.S., 555 F.2d 781,
793-794 (U S. Ct. of Claims 1977); Sierra Vista Hospital v.
U.S., 639 F.2d 749 (U.S. Ct. of Claims 1981); Chambers v.
Superior Court of Shasta County, 121 Cal. App. 3d 893
(1981), in this connection.
Scholarly commentary has, likewise, generally en-
dorsed screening procedures, whereby the wholesale dis-
qualification of law firms, with which former Govern-
ment attorneys have become associated, may be avoided.
See LaSalle National Bank v. County of Lake, supra 258,
and Iacono v. Humphrey, supra 3522, wherein citations to
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some six law review articles and comments , dealing spe-
cifically with the so -called Chinese Wall defense to dis-
qualification motions, will be found.
The congeries of screening "arrangements" which var-
ious courts and commentators have considered sufficient,
for the purpose noted , contain certain common charac-
teristics . These have generally compassed : First, a specif-
ic provision for the disqualified attorney 's exclusion from
participation in the action ; second, denial of access to rel-
evant files ; third, directives pursuant to which law firm
members are prohibited from showing their disqualified
colleague documents related to any cases wherein some
conceivable "appearance of impropriety " might develop;
fourth, prohibitions calculated to prevent any discussion
of such litigation with the disqualified attorney present,
or within hearing distance; fifth, directives calculated to
preclude the disqualified lawyer from sharing fees or
participating in profits derived particularly from repre-
sentations involving cases with which he may have been
"connected" during his period of Government service.
Further, some showing should preferably be made that
screening "arrangements" had been set up concurrently
with the potentially disqualifying event's occurrence,
either when the concededly disqualified attorney joined
the firm, or when the firm accepted a case likely to raise
the ethical problem with which we have, herein, been
concerned.
In this connection , further , I note officially that the
American Bar Association 's Code of Professional Re-
sponsibility , previously mentioned , has recently been re-
placed by Model Rules of Professional Conduct which
the Association 's House of Delegates endorsed during its
1983 Atlanta , Georgia convention , following 6 years of
consideration , revision , and debate.
Despite their adoption by the Association 's governing
body, these Model Rules , like their Code predecessors,
have no legal force . Members of the profession who
flout or disregard them will not be subject to sanctions-
with respect to matters not covered by the superseded
Code of Professional Responsibility 's Canons particular-
ly-pending their formal adoption by various state su-
preme courts or legislatures . Clearly, however , they re-
flect the profession 's current view regarding certain ethi-
cal standards which legal practitioners, courts, and gov-
ernmental agencies concerned with law enforcement
should observe. Certainly, with reference to the particu-
lar situation with which we are now concerned, they
should carry some persuasive thrust.
Within these Model Rules , particularly those with ref-
erence to practitioners successively involved in Govern-
ment service and private practice , Formal Opinion 342's
recommended, "screening " procedure , calculated to pre-
clude vicarious or so.called imputed law firm disqualifi-
cations which might otherwise be considered warranted,
has been endorsed . See Rules No . 1.9, Conflict of Interest:
Former Client; No. 1.10, Imputed Disqualification.- General
Rule; and particularly No. 1.11, Successive Government
and Private Employment , coupled with their related com-
ments and notes . Therein , the concept of vicarious dis-
qualification for law firms , with which a former Govern-
ment lawyer personally disqualified may be associated,
stands reaffirmed , unless:
(1) [T]he disqualified lawyer is screened from any
participation in the matter and is apportioned no
part of the fee therefrom .. . .
The relevant rule further mandates written notice,
with respect to such required "screen" arrangements,
which must promptly be given to appropriate Govern-
ment agencies and concerned parties, whereby they may
be enabled to ascertain compliance therewith.
In this case , so Schachter , Kristoff, Ross & Sprague's
Board submission shows, screening arrangements suffi-
ciently comprehensive to satisfy Formal Opinion 342's
recommendation and comparable , judicially defined, re-
quirements previously noted herein were, clearly , estab-
lished concurrently with the January 4, 1982 confirma-
tion of Berkowitz ' formal affiliation decision. In signifi-
cant respects , the law firm's planned "Chinese Wall"
was, by then , firmly in place.
Respondent ' s counsel, within his record comments and
formal submission in response to Complainant Union's
appeal herein , has provided no statement , in haec verba,
that Berkowitz has not been , or would not be, appor-
tioned part of the fee which Schachter , Kristoff, Ross &
Sprague might derive, specifically , from Respondent's
representation . On the record herein, I conclude , howev-
er, that-with due regard for the relevant circum-
stances-counsel 's omission warrants no contrary infer-
ence. Schachter , Kristoff, Ross & Sprague's submission
reveals that Berkowitz had accepted "employment" with
the firm . Nothing within the record suggests that he was
proffered a partnership ; that his compensation would
compass a right to share in firm profits without limita-
tion; or that provisions, calculated to preclude his pro
tanto participation in profits derived, particularly, from
Respondent ' s representation, were therefore considered
required . See Model Rules, Rule No. 1.11, Comment,
fifth paragraph . Within the firm's January 4 letter, wel-
coming Berkowitz ' accession, references were made to
their "mutual intention " to maintain the highest possible
ethical standards and to avoid even the mere appearance
of any conflict or impropriety . A failure to specify, with
particularity, whatever impact maintainance of these
standards would have on Berkowitz ' compensation
should not, within my view, herein, be considered fatal.
So far as the record shows , Schachter, Kristoff, Ross
& Sprague's screening procedure has been followed,
scrupulously , to date. No evidence has been proffered,
suggesting that the firm's prepared "Chinese Wall" has
been breached . No taint, sufficient to prejudice Com-
plainant Union's position with respect to this matter's
prosecution, consequent on Berkowitz ' recent affiliation
with Respondent 's counsel, has been persuasively demon-
strated. With matters in this posture, therefore, I con-
clude, consistently with the Second Circuit 's comment in
Board of Education of the City of New York v. Nyquist,
previously noted, that a merely conceivable "appearance
of impropriety" must be considered too slender a reed
upon which to rest a disqualification order.
With due regard , then, for the record herein which,
for present purposes , may now be considered complete
my previous denial of Complainant Union 's disqualifica-
MACK TRUCKS
tion motion, so far as it relates to Respondent's current
legal representatives, will stand reaffirmed.
IV. UNFAIR LABOR PRACTICES CHARGED
A. Issues
The General Counsel's presentation herein, though
predicated on three principal contentions, raises numer-
ous collateral or subsidiary questions. For present pur-
poses, however, these questions may be conveniently
summarized.
First: The General Counsel contends that Respondent's
decision to close its Hayward, California plant, and to
transfer that facility's productive operations to the firm's
Macungie, Pennsylvania plant, was a decision withre-
spect to which Respondent was obligated to bargain.
With respect to that contention's resolution, however,
several preliminary determinations will, seemingly, be re-
quired. Did management's decision generate a genuine
"partial closing" of Respondent's business with respect to
which the U.S. Supreme Court's decision in First Nation-
al Corp. v. NLRB, 452 U.S. 666 (1981), would, conceiv-
ably, provide a dispositive precedent for the present
case's dismissal? Or, alternatively, did Respondent's
course of conduct constitute merely a consolidation of
production operations and transfer of bargaining unit
work, together with a transfer of some bargaining unit
workmen; if so, could Respondent's action be deemed a
plant relocation with respect to which the Supreme
Court's decision noted might, or might not, be determi-
native?
Subsumed within this question, of course, further ques-
tions are presented. On this case's particular facts, would
benefits conceivably derivable from the collective-bar-
gaining process outweigh Respondent's putatively busi-
ness-related need to pursue unencumbered decision
making, and thus warrant a bargaining obligation's impo-
sition? Or, should a contrary determination be considered
preponderantly warranted, on the facts, thereby dictating
the present case's dismissal? In this connection, Respond-
ent raises a further collateral defense. The firm contends
that Complainant Union and its designated collective-
bargaining representatives had-during previous negotia-
tions-bargained about, and negotiated contract provi-
sions with regard to management's plant closure deci-
sions, consolidation decisions, and work transfer deci-
sions, with respect to which renewed collective-bargain-
ing negotiations should be considered foreclosed (save
when conducted by mutual consent) prior to their cur-
rent labor agreement's termination date. In tandem with
this contention, Respondent suggests that Complainant
Union's purported "delay" particularly with respect to
requesting collective-bargaining relative to Respondent's
challenged decision, constituted a waiver of its claimed
bargaining rights.
Second: The General Counsel contends that Respond-
ent's refusal to discuss certain Local 76 proposals, re-
garding the consequences and effects of the firm's Hay-
ward plant closure, constituted a refusal to bargain,
statutorily proscribed. Respondent's management, how-
ever, contends that the firm's obligation when confront-
ed with plant closure, consolidation and work transfer
723
situations have been defined within its "Master [Collec-
tive Bargaining] Agreement" currently in'force; that the
designated contract's relevant provisions had been de-
rived from many years of collective-bargaining history;
and that the firm's refusal to consider certain of Com-
plainant Union's demands, which sought some modifica-
tion of those provisions, should be considered legally
privileged because their current collective-bargaining
contract reflected negotiated settlements with respect
thereto, binding on the parties throughout their con-
tract's defined term.
In response, Complainant Union suggests that Re-
spondent's refusal to consider demands for some signifi-
cant modifications, with respect to relevant contract pro-
visions, derived substantially from management's reluc-
tance to negotiate regarding possible changes which
Local 76's Allentown, Pennsylvania sister, local might
challenge; Complainant Union contends that Respond-
ent's refusal to negotiate regarding its demands (bot-
tomed upon such considerations) should not be consid-
ered legally justified. Finally, the General Counsel and
Complainant Union contend that should Local 76 be
considered chargeable with a contractually grounded
"implied" waiver, calculated to preclude midterm negoti-
ations regarding the consequences and effects of Re-
spondent's Hayward plant closure the firm's management
should, nevertheless, be considered estopped from reli-
ance on such a waiver defense. The General Counsel and
Complainant Union would have this Board note that Re-
spondent did finally participate in discussions which led
to some partial modifications affecting relevant contrac-
tual provisions.
Further, Respondent contends that management's duty
to bargain, particularly with reference to suggested
modifications affecting Master Agreement provisions
which define the firm's commitments in plant closure sit-
uations, was a duty owed, not to Complainant Union di-
rectly, but to Complainant Union's parent organization
and designated collective-bargaining representatives; and
that Respondent has satisfied its bargaining duty, particu-
larly in this connection, through its participation in nu-
merous conferences and discussions with Complainant
Union's officers, various UAW representatives, and
spokesmen for various UAW constituent bodies.. Finally,
Respondent suggests that Complainant Union has waived
its right to bargain, by waiting until January 19, 1981,
before presenting its specific bargaining requests.
Third: The General Counsel contends that Respond-
ent's management representatives unlawfully refused to
furnish Complainant Union with requested information.
Specifically, Respondent has been charged first with a
refusal to provide information concerning its reasons for
the plant closure decision challenged herein. In that con-
nection, Respondent proffers several defenses. Primarily,
the firm's management contends that Respondent was
not legally obligated to provide financial data calculated
to justify its plant closure decision, since such informa-
tion could not-under the circumstances-be considered
data related to a mandatory bargaining subject. Never-
theless, Respondent suggests, further, that its manage-
ment representatives were not obligated to provide all
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such requested financial information because of its confi-
dential, proprietary nature; that Complainant Union led
Respondent to believe it was satisfied with whatever dis-
closures were made, and should therefore be considered
estopped from claiming now that Respondent's disclo-
sures were insufficient; that Complainant Union effec-
tively waived its rights, if any, to request all relevant
documentation supportive of Respondent's closure deci-
sion , because of the lateness and ambiguity which char-
acterized its request; and that Respondent's management
had, nevertheless, furnished Complainant Union's repre-
sentatives "promptly and repeatedly" with relevant, non-
confidential information which had been requested con-
cerning the firm's closure decision.
The General Counsel contends, further, that Respond-
ent failed and refused to provide Complainant Union
with requested information which it required to bargain
intelligently regarding the consequences and effects of
the Hayward plant's closure. Respondent's management,
however, proffers categorical denials, contending that it
provided Complainant Union's representatives with re-
quested information "promptly" whenever such informa-
tion became available.
The disposition of these conflicting contentions will,
necessarily, require the consideration of numerous sub-
sidiary questions, with respect to both matters of fact
and law. These will be considered whenever they may
arise, and require resolution, within the decision which
follows.
B. Facts
1. Respondent's business
a. Production facilities
Respondent is a Pennsylvania corporation; Allentown,
Pennsylvania, houses its corporate headquarters. The
firm maintains several plants, within the United States
and foreign countries, wherein, among other products, it
manufactures, assembles, sells, and distributes several
models of heavy duty, Class 8 GVW, diesel-powered
trucks and truck tractors. On October 31, 1980, when the
situation developed with respect to which this case is
concerned, Respondent maintained four principal domes-
tic production facilities. Within the firm's Allentown,
Pennsylvania plant, conventional trucks (with their
hoods and engines located in front) were produced. Al-
lentown's employees were represented for collective-bar-
gaining purposes by UAW Local 677, Complainant
Union's sister local. Within a Macungie, Pennsylvania fa-
cility, Respondent produced so-called "cabover" trucks;
the engines powering these vehicles were located direct-
ly below the truckdriver's cab. Throughout the period
with which this case is concerned, UAW Local 677, like-
wise, represented Respondent's Macungie plant workers.
Allentown and Macungie, so the record shows, are locat-
ed approximately 14 miles apart. Respondent's plants,
however, are separately supervised.
At Hagerstown, Maryland, Respondent produces en-
gines and transmissions for its complete line of truck
models; the firm's Hagerstown workers' were represented
by UAW Local 171 throughout the period with which
this case is concerned. Within its Hayward, California
plant-which will sometimes be designated Mack West-
ern herein several so-called "luxury line" truck models
were being produced; these were designated as Cruise-
Liner, Super-Liner, and Value-Liner models. At all times
material herein, Mack Western's workers were represent-
ed by Complainant Union, for collective-bargaining pur-
poses.
Respondent's Hayward plant had, so the record
shows, been established sometime during 1965-1966 spe-
cifically so that Respondent might gain some greater
market penetration within the country's western States.
During 1966 Respondent sold 9.6 percent of the large
over-the-road trucks sold within 11 western States.
Before its closure, which will be discussed further here-
inafter, Mack Western had reached a high 10.4-percent
market share; this level had, however, been reached
during Respondent's 1979 sales year.
During a 3-year period, between 1978 and 1980 specifi-
cally, Respondent spent approximately $5,500,000 for
capital improvements within its Hayward, California fa-
cility. By 1979, which turned out to be the best sales
year for the country's domestic truck industry, to date,
Mack Western's local management had raised its daily
truck production rate from 28 to 35 vehicles. Some 1200
workers were, then, employed within Respondent's Hay-
ward facility.
b. Concerned managerial personnel
Within the period with which this case is concerned,
numerous corporate officials and management represent-
atives were directly or peripherally involved with deci-
sions, discussions, and negotiations relative to Mack
Western's closure. For convenience, those primarily con-
cerned might well be designated, preliminarily, at this
point. Within the firm's Allentown, Pennsylvania corpo-
rate headquarters, those significantly involved com-
passed: Alfred W. Pelletier, chairman of the board; John
B. Curcio, president; Guy Coffelt, executive vice presi-
dent and chief financial officer; Thomas Keyes, corpo-
rate vice president of labor relations; Michael P. Zarella,
vice president of administration; and Richard J. Peterson,
corporate director, industrial relations.
In Hayward, California, Harold Demkee was Re-
spondent's plant manager throughout the period with
which this case is concerned, prior to the facility's clo-
sure. Within the same period, Frank Romao served as
Mack Western's industrial relations manager; less than a
year before Respondent's October 1980 decision regard-
ing the facility's closure, Romao had replaced G. E.
Windish, his immediate predecessor in that position.
Throughout the period with which this case is con-
cerned, Respondent conducted business as a corporate
subsidiary of The Signal Companies, Inc. Signal repre-
sentatives held three seats on Respondent's board of di-
rectors. Nothing within the present record suggests,
however, that they were actively involved with Re-
spondent's plant consolidation program, or that they par-
ticipated directly when Respondent's production facilities
were restructured.
MACK TRUCKS 725
2. Collective-bargaining history
a. Negotiations for a Master Agreement
For many years, never specified for the record, Re-
spondent negotiated collective-bargaining agreements,
separately, with various UAW locals representing work-
ers within its several United States facilities. In 1958,
however, negotiators for UAW's International, and vari-
ous UAW locals, demanded "joint" negotiations, looking
toward a single "master" or "national" contract-drafted
to replace nine prior agreements separately negotiated-
'which would cover Respondent's various production fa-
cilities, offices and divisions.
My factual determinations, which follow, regarding
the negotiations which resulted, particularly those con-
cerned with the parties' successive 1958 and 1961 con-
tracts, derive from bargaining notes kept by a company
negotiator, now deceased, which I received for the
record, together with testimony proffered by Richard
Peterson, the sole company representative, still alive,
who had participated in those negotiations. Though
clearly "hearsay" with respect to statements made, and
positions taken, during the negotiations in question, Re-
spondent's notes-with their authenticity, within my
view, sufficiently established-were found properly re-
ceivable. See Federal Rules of Evidence, Rule 803(1),
(6), (16), and (24). These notes, considered in conjunction
with Peterson's testimony regarding the negotiations,
stand unrebutted. Clearly, they do reflect statements
made and positions taken, summarized from the perspec-
tive of Respondent's negotiators. They have, therefore,
been reviewed with due regard for their conceivably
"slanted" representations. On this record, they can
hardly be considered reliable verbatim reports; I consider
them, however, persuasive evidence, reflecting the sub-
stance of the various statements made and positions
taken., by concerned parties, throughout the negotiations.
The UAW negotiators, I find, demanded such joint ne-
gotiations, calculated to produce a single agreement cov-
ering Respondent's plants, so that terms and conditions
for the firm's workers might be rendered uniform, re-
gardless of location.
Respondent's negotiators, initially, rejected UAW's
master contract demand; among other things, they cited
conditions affecting the firm's Cortland, New York, and
Sidney, Ohio plants which allegedly rendered those
plants unique. Finally, however, Respondent agreed to
recognize UAW's newly formed Mack Truck Council,
and to negotiate with the Top Negotiating Committee of
that Council, looking toward a single contract.
The Mack Truck Council has, since then, functioned
within UAW's organization. Its members represent vari-
ous UAW locals which, in turn, represent Respondent's
workers. The Council monitors the negotiation and ad-
ministration of Master Shop Agreements and Respond-
ent's several contracts negotiated separately, with vari-
ous UAW locals, dealing with local plant conditions. Os-
tensibly, the Council coordinates the representative func-
tions of these concerned UAW locals, and promotes
their purportedly "uniform" application of successive
collective-bargaining contracts. Actual negotiations, with
respect to Respondent's first Master Shop Agreement,
and successive master contracts, noted hereinafter, have
been conducted by a so-called Top Negotiating Commit-
tee composed of representatives designated by UAW's
principal officers, and concerned UAW locals, for serv-
ice in that capacity,
At first, Respondent's commitment to such joint nego-
tiations was limited ; it compassed the negotiations then in
progress, solely. Ultimately, Respondent's negotiators
conceded that Master Shop Agreements, drafted, to
cover Respondent's various United States locations, uni-
formly would be negotiated.
The parties, likewise, reached a consensus with respect
to which specific issues their Master Shop Agreements
would cover, and which would be left for supplemental
plant-centered negotiations. Consistently therewith, their
first Master Shop Agreement was signed on January 30,
1959. Its prefatory language defines the agreement as one
negotiated between:
Mack Trucks and the International Union , United
Auto, Aircraft and Agricultural Implement Workers
of America , UAW, AFL-CIO, on its own behalf
and on behalf of Local Nos . 68, 229, 343 , 678 and
1270 (hereinafter designated collectively as the
"Union").
The agreement covered a wide variety of subjects nor-
mally considered within the proper scope of collectively
bargained contracts. Its duration clause , article 28, pro-
vided, in pertinent part, that Master Agreement amend-
ments, and new agreements "affecting or adding to"
master contract provisions, together with midterm modi-
fications thereof, would have to be negotiated by the
Mack Truck Council's Top Negotiating Committee,
UAW International representatives, and Respondent's
negotiators. (Art. 28's specific language has since been
superseded by art. 32 within the master contract, noted
hereinafter, which was in force throughout the period
with which this case is concerned. Art. 32, however,
contains similar limitations regarding the negotiation of
Master Agreement provisions, amendments or midterm
modifications. In relevant part, art. 32 will be found, set
forth, hereinafter.)
Article 28 provided, further, that negotiated amend-
ments or changes would have to be signed, specifically,
by Respondent's director of industrial relations, constitu-
ent members of the Mack Truck Council's Top Negotiat-
ing Committee, and the UAW Mack Truck Department's
director.
Since 1958, the parties have negotiated successive
Master Shop Agreements covering Respondent's UAW-
represented facilities . These negotiations have, consistent-
ly, been conducted by the Mack Truck Council's Top
Negotiating Committee described previously herein.
Likewise, since 1958, Respondent has negotiated succes-
sive local supplemental agreements with UAW spokes-
men and negotiators for UAW locals representing work-
ers within particular plants. These supplementary con-
tracts have covered local plant issues. They contain pro-
visions which the parties, mutually, consider devoid of
nationwide significance-provisions neither intended nor
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
calculated to undermine companywide uniformities,
achieved through master contract negotiations.
Sometime during 1965- 1966, Respondent opened its
Hayward , California plant facility; shortly thereafter,
Complainant Union became the recognized bargaining
representative of Respondent 's Mack Western production
and maintenance workers. Since then , Complainant
Union has been privy to UAW's successive Master Shop
Agreements with Respondent herein ; within the context
of Master Shop Agreement negotiations , Complainant
Union ' s representatives have, likewise, negotiated local
supplements.
b. Negotiations with respect to transfers of bargaining
unit work between Respondent 's plants
(1) 1958
Shortly before the parties' 1958 contract negotiations,
noted above , Respondent had determined to transfer, and
transferred certain production operations from a New
Brunswick , New Jersey facility to the firm 's Plainfield
plant within the same State. Cognizant of that manage-
ment decision, and its consequences , UAW negotiators
coupled their Master Agreement demand, previously
noted, with proposals for specific consensual understand-
ings calculated to govern employee transfers between
Respondent 's several plant or office locations. UAW's
determination to seek contractual protection with respect
to possible future plant closures, and transfers of work
between plants, was fortified when Respondent 's negotia-
tors reported during their 1958 contract talks that Re-
spondent 's management was, then, contemplating its
Sidney, Ohio plant's closure . In consequence , union rep-
resentatives proposed certain "Transfer Provisions to
Govern When Work is Shifted from Plant to Plant or
New Plants at Mack Trucks , Inc." The proposal encom-
passed five principal demands: First, that, whenever
work transfers are planned , so-called displaced "old
plant" workers should all, be given transfer rights to
their work's new location, with their full seniority rights
unimpaired ; second, that UAW should be recognized as
the collective -bargaining representative for so-called new
plant workers, and that wage rate and contract stand-
ards, previously set with reference to Respondent's old
plant , should be considered still applicable; third, that
workers exercising their "right to transfer" should be re-
imbursed for their transfer expenses through "relocation
allowance" grants ; fourth, that workers who chose to re-
frain from exercising their transfer option should be
granted "adequate" severance pay; fifth , that employee
transfers , from one location to another , should be facili-
tated by the development of consensually negotiated,
areawide , seniority agreements . Respondent 's retained
"bargaining session" notes , mentioned previously herein,
reveal clearly that UAW's negotiators considered these
proposed "transfer agreement" provisions crucial priority
matters, lacking which a complete contractual consensus
might not be reached; I so find.
Respondent 's representatives , initially, resisted UAW's
defined "transfer agreement " demands; they favored
future ad hoc negotiations , whereby transfer situations,
whenever they might develop, could be dealt with case
by case, rather than pursuant to previously negotiated
formulas. The Union's spokesmen, however, held firm;
they contended that contractual provisions drafted to
govern work transfers should be negotiated when the
parties were not facing "imminent" transfer situations.
Ultimately, Respondent's negotiators concurred.
The parties, thereupon, negotiated a transfer agree-
ment; it became "Appendix D," supplementing their
master contract. Consensual understandings were
reached that whenever work was transferred from one
plant, covered by the parties' newly reached Master
Shop Agreement, to another plant covered thereby
workers within the plant which had lost work would be
granted transfer rights to their work's new location, pro-
vided they had seniority over workers currently in layoff
status from the latter plant.
As noted, the parties' first transfer agreement merely
covered situations wherein both the plant losing work
and the plant gaining such work were governed by the
Master Shop Agreement newly negotiated. Respondent's
proffered notes, however, reveal that possible new plant
acquisitions, and possible transfers of work to facilities
not covered by the parties' newly negotiated contract,
were discussed. Respondent's notes suggest that a union
negotiator, whose comments were neither challenged nor
contradicted, described their "agreement in principle"
which included a consensual "understanding" that,
should Respondent build or purchase any new plants,
company representatives would "sit down as far in ad-
vance as possible" with UAW International officials to
discuss their situation.
The negotiators agreed that previously defined job
classifications and previously set wage rates, within Re-
spondent's transferee plants, would apply to workers per-
forming transferred work. Their negotiated appendix D
provided, further, that "Company" and "Union" repre-
sentatives would confer, pending any projected transfers,
regarding, (1) the number of workers whose transfer
would have to be planned, (2) canvassing methods by
which those employees who might wish to transfer could
be determined, (3) the number of workers on layoff
status, within the transferee plant's complement, together
with their relative seniority, and (4) the principles and
procedures which would govern any work transfers.
Appendix D's initial 1958 formulation provided, fur-
ther, that discussions, concerning the detailed application
of specific transfer agreement principles to particular
transfers, could be conducted by Respondent's represent-
atives with spokesmen representing UAW's International
and the several locals directly concerned. The parties
were agreed, however, that should consensual under-
standings with regard to such details not be reached pro-
jected transfers would, nevertheless, proceed, and that
Respondent would not incur backpay or retroactive
monetary liabilities consequent, upon management's deter-
mination to proceed with transfer plans. The parties did
negotiate a provision that disputes concerning transfer
agreement "applications" would be resolved through
contractually defined grievance procedures.
MACK TRUCKS
(2) 1961
In 1961, shortly before negotiations looking toward
their Master Shop Agreement's renewal were scheduled
to begin, Respondent 's management announced plans to
close the firm's Plainfield, New Jersey facility, and to
transfer the production operations being performed there
to a new Hagerstown , Maryland plant, then under con-
struction. Both parties recognized that appendix D's then
current formulation would- not be applicable, textually,
with respect to this projected transfer, since Respond-
ent's Hagerstown facility, when ready, would constitute
a clearly "new" plant, which their Master Shop Agree-
ment, then in force, would not cover. The parties there-
fore, negotiated a separate "agreement" specifically
drafted to cover transfer rights and procedures related to
Plainfield's closure.
Thereafter, when Respondent's negotiators and
UAW's spokesmen commenced their 1961 contract nego-
tiations , union representatives , among other things, de-
manded a revised transfer agreement, calculated to cover
all future work transfers between Respondent's plants.
Lengthy discussions followed. Initially, UAW's negotia-
tors sought contractual provisions, so I find, whereby
"any" future work removals or transfers could be con-
summated pursuant to "mutual agreement " solely. The
union representatives proposed, further, that "all" con-
cerned workers should be given transfer rights; that Re-
spondent should bear "all" transportation and moving
costs related to projected transfers; that employees desig-
nated for transfer should be given 90 days' notice, at
least, regarding their "new location" reporting date; that
Respondent should reimburse such transferred workers
for whatever "additional costs of educating their chil-
dren" particular transfers might generate; that job train-
ing should be provided for any workers who chose not
to transfer; that laid off employees should be granted
lump sum payments in addition to their SUB severance
benefits; that medical insurance benefits at Respondent's
expense should be continued for 18 months for laid-off
workers; and that certain pension benefits, for which
they might qualify, should be increased.
Relying on contemporaneously kept bargaining notes,
proffered for the record herein which, purportedly, sub-
stantially recapitulate the substance of these negotiations,
Respondent seeks a factual determination now that
UAW's negotiators never questioned Respondent 's mana-
gerial "right to close" currently maintained facilities,
and/or to transfer work performed within a closed facili-
ty to some new location. In pressing this contention, Re-
spondent's counsel suggests that, during the contract dis-
cussions now under consideration, union negotiators
sought to restrain Respondent's power to make plant clo-
sure decisions-by demanding contract language which
would prohibit "any" future work transfers save by
mutual agreement-precisely because they had, previous-
ly, acknowledged Respondent 's managerial right to make
such decisions. Respondent's testimonial and documenta-
ry presentations supportive of this contention, together
with that presentation's significance, will, however, be
considered subsequently within this decision.
Respondent's negotiators, however, categorically re-
jected UAW's primary proposal that "mutual agree-
727
ment" should be considered required before covered
transfers could be effectuated. Further, they rejected a
companion union proposal that Respondent should be re-
quired to provide "substantial adequate advance notice"
in writing whenever the firm 's management contemplat-
ed a transfer of operations to some new location . Provi-
sions embodying these concurrent proposals , therefore,
never became part of the revised transfer agreement
which the parties eventually reached.
Initially, Respondent ' s negotiators had, likewise, re-
jected UAW's substantive "transfer agreement" demands,
previously noted; they had contended as previously
noted that negotiations regarding particular transfers of
company work to new locations should continue to be
handled, case by case, when required. However, shortly
before a UAW strike deadline date, prompted by a
number of unresolved substantive issues, most of them
never specified for the present record, the firm's repre-
sentatives reported their willingness , in principle, to ne-
gotiate consensual commitments which would cover all
future interplant work transfers.
One difference, among several, which had precipitated
UAW's strike decision, had derived from a conflict be-
tween the parties with regard to whether their renegoti-
ated transfer agreement would survive a renewed Master
Shop Agreement 's proposed termination date. Respond-
ent's record proffers, which I credit in this connection,
suggest that UAW's representatives wanted a nominally
"perpetual" commitment ; Respondent desired a transfer
agreement limited to their new Master Shop Agree-
ment's term . Eventually , the parties agreed that Re-
spondent 's appendix D commitments would govern both
work transfers throughout their master contract' s term,
and similar transfers , following that contract's termina-
tion date, which might involve plant's "newly acquired
or on which construction [might have been] com-
menced" before their agreement 's termination.
With this, plus other disputed issues, resolved, the par-
ties finally reached a December 1961 interplant transfer
agreement, with two principal sections . One, considered
on its face, defined the principles which would govern
future work transfers confined to existing plants covered
by the parties' recently terminated master contract. The
second defined the principles and procedures which
would govern work transfers from facilities covered by
the parties ' Master Shop Agreement , to new locations
which Respondent had not been "operating" as of De-
cember 14, 1961, specifically. Further, several new sec-
tions were added; pursuant thereto transferring employ-
ees were declared entitled to "relocation allowances"
under certain circumstances. Appendix D, thus modified,
set a sliding scale with reference to which such negotiat-
ed "allowance" sums could be determined.
(3) 1961 to 1980
Between 1961 and the date when the hearing, with re-
spect to this case, commenced , six successive Master
Shop Agreements were negotiated. During that period,
so I find, appendix D sustained few changes.
Among other things, the parties have agreed that a
special concept designated "home spot seniority" should
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
govern when workers whose positions would be affected
by projected work transfers, directly or indirectly, were
having their transfer rights determined. This special con-
cept, the application of which became a subject of dis-
cussion and controversy subsequently following Re-
spondent's Mack Western closure decision, will be con-
sidered, further, hereinafter.
On four separate occasions within the 19-year period
noted relocation allowance amounts for transferred
workers were increased. Specifically, during their 1979-
1980 contract talks, Respondent's representatives and
UAW's spokesmen negotiated a significant increase, with
respect to relocation allowance sums which would be ap-
plicable in cases of employee transfer subsequent to Oc-
tober 22, 1979, particularly.
3. Respondent considers Mack Western's Closure
The 70's decade's middle years, I find, compassed a
relatively prosperous period for heavy truck manufactur-
ers, generally. In Respondent's case, particularly, back-
log orders were substantial; daily production levels
within the firm's assembly facilities were relatively high,
compared with their rated production capacity. Accord-
ing to Guy Coffelt, Respondent's 5-year projections re-
flected managerial expectations that the late 70's and
early 80's would bring significant sales growth and re-
quire increased production.
Coffelt-previously designated, within this decision, as
Respondent's executive vice president and chief financial
officer-sat on the firm's board of directors and execu-
tive committee. Proffered as Respondent's witness, he
provided both testimonial and documentary submissions
relative to Respondent's business situation throughout
this period. In that connection, further, he recapitulated
the business developments which purportedly had preci-
pitated Respondent's decision to close Mack Western's
plant. Coffelt's testimony, particularly in this regard,
stands in the record without significant challenge or con-
tradiction.
Throughout the middle years of the 70's decade, there-
fore, Respondent planned for, developed, and realized
greater productive capacity. In particular, the firm's Ma-
cungie plant was built; during 1976, production began
there. As previously noted substantial capital improve-
ments were, likewise, made between 1977 and 1979 par-
ticularly within the firm's decade-old Hayward, Califor-
nia facility.
By October 1979, however, Respondent's overall sales
began falling. Order backlogs fell; the firm's unsold truck
inventory grew. According to Coffelt, whose testimony,
particularly in this connection, stands without dispute,
Respondent's business problems were compounded by
high interest rates, and market uncertainties consequent
on prospective deregulation within the nation's trucking
industry; these factors were coupled with a near exhaus-
tion of Respondent's long-term debt financing capability
developing because of restrictions within its then current
loan agreements.
During 1980, so Coffelt testified, these economic prob-
lems intensified. Trade data sources, consulted by Re-
spondent's management representatives, suggested that
the nation's entire heavy duty truck manufacturing indus-
try might be, or had been, affected. The firm's scheduled
production rates within its several plants, consequently,
were reduced, since a significantly lower market demand
for heavy duty trucks, during 1980 certainly, was fore-
seen.
Mack Western's scheduled production rate had been
reduced from 35 trucks per day, during October 1979 to
25 trucks daily during December of that year. During
January and February 1980, further reductions were ef-
fectuated. Scheduled production within Respondent's
Macungie plant was reduced from 25 truc per day
during October 1979 to 15 trucks daily duringecember
and January thereafter.
Further, by February 1980 Respondent's management
was pursuing a companywide cost-reduction program;
among other things, that program compassed pay freezes
for nonbargaining unit workers, coupled with hiring
freezes and some layoffs.
At Mack Western, Respondent's production cutbacks
and retrenchment program were particularly noted. The
plant was rife, so credible witnesses testified, with
rumors of possible closure. With matters in this posture,
Local 76's designated negotiators left Hayward, some-
time in January 1980, headed for Willow Grove, Penn-
sylvania, where their negotiations looking toward a re-
newed Master Shop Agreement, together with separate
Local supplements for five designated company facilities,
were then scheduled to get under way.
a. Contract negotiations
Throughout the Master Shop Agreement negotiations
which followed, union proposals were presented by
UAW International spokesmen for the Mack Truck
Council, concerned UAW regional directors and Interna-
tional representatives, and committeemen from four
UAW locals. On March 26, 1980, these union negotiators
and Respondent's representatives with a complete con-
tractual consensus reached signed their renewed master
contract. The document was designated a Master Shop
Agreement between Respondent and the UAW Interna-
tional, functioning on its own behalf, and on behalf of
four designated locals; it covered Respondent's produc-
tion employees within five "shop bargaining units" locat-
ed in Hagerstown, Maryland, Bridgewater, New Jersey,
Allentown, Pennsylvania, Macungie, Pennsylvania, and
Hayward, California. The contract was declared retroac-
tively effective from October 21, 1979, for a 3-year term
ending October 20, 1982, with successive yearly exten-
sions, absent written notice by either party calling for its
modification, amendment , or termination.
The Master Shop Agreement's duration clause (art. 32)
provided that negotiations for master contract amend-
ments or "new agreements affecting same or adding to
same" were to be negotiated within a specified time
schedule keyed to the contract's nominal termination
date or successive anniversay dates, by:
. . . the Top Negotiating Committee of the UAW
Mack Truck Council, International representatives
of the Union and representatives of the Company.
MACK TRUCKS
Article 32 provided, further, that master contract modifi-
cations consensually negotiated during its term should be
negotiated , likewise, by the specific "parties" described
above.
Further Master Shop Agreement provisions , deserving
of consideration in connection with various Board deter-
minations required herein , will be noted subsequently,
within this decision , whenever relevant.
Concurrently with their Master Shop Agreement ne-
gotiations, Mack Truck and union representatives were
conferring with regard to separate Local Supplement
Agreements , covering workers within Respondent's five
designated plants. With respect to Mack Western specifi-
cally, Complainant Union was represented by a five-
member committee which Local President Paul Snyder
and Shop Chairperson (Tony) Rodriguez headed.
Local 76's principal spokesman , however, was Earlie
Mays, a UAW International representative . Respondent's
principal negotiator was George E. Windish, who had,
shortly prior to these January 1980 sessions , been desig-
nated Mack Western 's industrial relations manager. Her-
bert H . Welch, then Respondent 's corporate vice presi-
dent of labor relations , likewise participated.
On several occasions , during these negotiations , Inter-
national Representative Mays questioned Mack Western's
industrial relations manager, so I find, regarding the
Hayward plant 's possible closure . With respect to Re-
spondent's reply, the record herein reflects some conflict.
According to Complainant Union's witnesses , both Win-
dish and Respondent's vice president for labor relations,
denied categorically that Respondent had "any inten-
tion" regarding Mack Western 's closure. Windish testi-
fied herein , however, that-when these questions were
raised during the parties' 'Willow Grove negotiations-
he, in fact , had no knowledge regarding any plans then
under consideration , or decisions made, with regard to
Hayward 's closure; he contended that, when queried
with regard to whether Respondent 's Hayward plant
would close, he had merely disclaimed knowledge with
respect thereto.
On this record , I credit Windish 's witness chair reca-
pitulation regarding the substance of his response. Should
a presumption be deemed warranted that someone within
Respondent's managerial hierarchy, with "line" responsi-
bility, was then, indeed , subjectively considering Mack
Western 's possible shutdown , I deem it highly unlikely
that such a clearly inchoate, purely potential course of
action would have been bruited or discussed , at such an
early stage , with corporate or local plant "staff - person-
nel, however highly placed.
In this connection , I note record references to the fact
that Frank Romao , who replaced Windish at Mack
Western during the spring of 1980, purchased a home
near Respondent 's Hayward facility during the summer.
He would hardly have done so if the plant's possible or
probable closure was then a matter of common knowl-
edge within Respondent's middle management hierarchy.
Windish and Welch , when responding to union que-
ries, may very well have made statements which led
Complainant Union 's negotiators to infer that Mack
Western's imminent closure need not be anticipated; in
fact, however , Respondent 's spokesmen so I find merely
729
reported that they had no knowledge regarding a pro-
jected closure.
On March 26, 1980, when Respondent 's representa-
tives and UAW's negotiators signed their master con-
tract, Mack Western 's Shop Supplemental Agreement
was, likewise , finalized . It provided for a 3-year term,
retroactively effective from October 21, 1979, through
October 20, 1982, and from year to year thereafter.
Within the document 's preamble, the parties privy
thereto were designated as Mack Trucks , Inc. and the
UAW International, functioning "in its own behalf and
on behalf of Local 76, Complainant Union herein."
Among other provisions , the contract contained a desig-
nated "Management Prerogatives " clause; it read as fol-
lows:
All matters relating to the management , conduct
and control of the business of the Company and the
operation of its plant are the exclusive responsibility
of the Company, subject to such limitations as are
established by the terms of this Agreement or any
supplements therein and further subject to any limi-
tations or requirements imposed by law.
With respect to work transfers between plants, Mack
Western's Shop Supplemental Agreement (art. 26) refers
the parties to their Master Agreement ; that document, in
turn , cites appendix D, previously noted , wherein the
parties ' "understanding" concerned with such transfers
can be found set forth . Comparable cross-references to
relevant Master Shop Agreement provisions define the
contractual commitments , negotiated by Respondent and
Complainant Union herein , with respect to article 28,
"Job Security and Outside Contracting " and Respond-
ent's concurrent "Supplemental Unemployment Benefits"
and "Severance Pay" plans. These plans will be found
detailed within appendices C-l and C-2 which supple-
ment Respondent 's master contract.
b. Subsequent developments
While a witness, Executive Vice President Coffelt re-
ported without challenge or contradiction that strictly
confidential studies, conducted by top level management
personnel within Respondent 's Allentown , Pennsylvania
corporate headquarters , which subsequently contributed
to Respondent 's decision regarding Mack Western's clo-
sure were initiated sometime during May 1980 . On June
25, Coffelt dispatched a "confidential " memorandum di-
rected to A. W. Pelletier, then Respondent 's president.
Therein, Respondent 's executive vice president reviewed
its firm's financial situation . Having done so, he forecast
a corporate $ 17-million loss for the 1980 calendar year,
comparing this with a previously forecast $51-million
profit for the period. The record reveals that Respondent
did, ultimately , suffer a 16-percent sales decline, with a
concomitant $ 18.2-million loss , within 1980, compared to
$67 3 million earned during the preceding calendar year.
Coffelt, so his memorandum shows, concluded that
their firm faced serious financial problems; that matters
had reached a stage where some "fundamental change in
the way Mack does business " would have to be consid-
ered; and that projected capital expenditures and contin-
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ued operations bottomed on their firm's previously for-
mulated 1980-1984 5-year business plan should currently
be considered "questionable" when "the Company's sur-
vival" might be deemed at stake. Respondent's executive
vice president reported his belief that Respondent was
"over-invested" with respect to assets, noting that the
firm's Macungie plant had never operated above 50-per-
cent capacity, and that Respondent's president had previ-
ously designated Mack Western a conceivable candidate
for divestment. Coffelt raised questions with respect to
whether Mack Western should be closed, and Macun-
gie's productive capacity more effectively utilized.
Coffelt's memorandum sparked a more detailed study
of plant utilization policies mounted during 1980's
summer and fall months. This study was conducted
"confidentially" by four designated management repre-
sentatives, working within the firm's corporate headquar-
ters They produced a written report in September 1980
which was reviewed and revised within the month
which followed. This report, specifically designated a
"Mack Western Study" Phase II, concluded that both
Respondent's Macungie and Hayward, California plants
had considerable unused productive capacity, and that
Respondent would not require both plants to satisfy pro-
jected sales orders, within the foreseeable future. Consist-
ently with these conclusions, the study recommended, fi-
nally, that Respondent make certain truck model and
design changes, close the Hayward, California facility,
and transfer some of the work being done there to the
firm's Macungie, Pennsylvania plant.
Detailed studies were provided, regarding the financial
implications of Mack Western's closure, projected bene-
fits realizable from the facility's termination , and con-
versely various costs which the Hayward plant's closure
would presumably generate.
In this connection, the management representatives re-
sponsible for the study projected termination benefits,
through a net reduction of Respondent's costs from
Mack Western's closure, which could approximate $9.7
million per year and, thus, significantly reduce the gross
sales volume which Respondent would require to reach a
break-even point.
These projected cost reductions would come, so the
study reported, from reduced freight costs, reduced plant
overhead expenses, and reduced material and equipment
costs, coupled with the elimination of accounting, engi-
neering, and computer systems which Mack Western's
closure would render redundant, and reductions affecting
plant management personnel and supervisors. When sum-
marizing projected termination benefits, the study noted
a further cost saving of $7.2 million derived from re-
duced expenditures for employee wages,salaries, and
fringes. Those savings, coupled with the cost savings
previously noted, were projected to produce "gross"
benefits totaling $14.3 million yearly. With projected
price reductions, scheduled for certain truck models, fac-
tored in, however, net benefits from the Hayward plant's
closure were projected at the yearly figure previously
noted. While a witness, Vice President Coffelt claimed
that most of the labor cost savings which the study pro-
jected were considered derivable from significant reduc-
tions in Respondent's complement of management per-
sonnel and Union-represented "indirect" employees,
while relatively small savings were considered derivable
from projected reductions in Respondent's staff of
Union-represented "direct" production workers. Coffelt
suggested, indeed, that, had Complainant Union consent-
ed to work, producing trucks at Respondent's Hayward
facility, for some low rate of pay, or even for no pay, the
savings achieved by consequent wage bill reductions
would still have been small, compared to those savings,
previously noted, which might be achieved through re-
duced overhead. This suggestion's significance will be
weighed, subsequently, within this decision.
The study further projected substantial termination
costs, consisting of contractually required SUB pay-
ments, group insurance continuation costs, presumptive
relocation costs for workers transferred, losses related to
the disposal of surplus machinery and equipment, freight
costs on materials being moved to Respondent's Allen-
town and Macungie facilities, costs related to possible
"vendor" cancellations, and downgraded inventory valu-
ations.
Finally, the study reported comments with respect to
Mack Western's possible closure, which had been solicit-
ed from Respondent's several divisions. Vice President
Kerber of Respondent's manufacturing division, alone,
proffered some cautionary observations. Specifically, he
noted the possibility that a shortfall in conventional cab
truck production might develop, should Mack Western
be closed and significant sales volume gains subsequently
materialize. Kerber's comments, further, provided the
study's sole reference to possible union-related conse-
quences, following the Hayward facility's closure and re-
sultant work transfers. Specifically, Respondent's Vice
President suggested:
Major concern-Strength of Local 677 would be
dominant in the Mack-U.A.W. organization. Con-
trol of the Local by a radical group could result in
severe problems for Mack Trucks. For example, it
may be difficult in future years to maintain Macun-
gie (and its extremely favorable contract) as a sepa-
rate division at negotiations and this could result in
a strike issue by sheer voting power.
The comments received from Respondent's industrial re-
lations division, however, contained no reference, what-
soever, to union-related considerations which within the
division's view might affect the firm's closure decision.
The division, merely, submitted "estimates of the costs of
benefits and severance pay" which would be payable to
Mack Western employees should Respondent's Hayward
facility be liquidated.
The management people responsible for Mack West-
ern's study, when summarizing their major findings, prof-
fered no comment regarding Vice President Kerber's
professed concern over possible union problems follow-
ing Mack Western's closure and consequent work trans-
fers. With respect to his note that some production short-
fall might develop, eventually, should Mack Western's
productive capacity be lost, the study's authors com-
mented, merely, that some 25 percent of Mack Western's
"Valueliner" sales, during the facility's best recent year,
MACK TRUCKS
had been made because of a shortage of Allentown's
comparable product . Their study, so the report 's authors
declared , assumed that capacity would "adequately sup-
port a product demand" should Mack Western be closed,
and that more assembly capacity would not be required.
In the meantime, within Respondent's Hayward, Cali-
fornia facility while the study discussed herein was being
conducted at the firm's corporate headquarters, rumors
with respect to Mack Western's possible closure were
circulating widely. Declining order backlogs had result-
ed in substantial production cutbacks and significant lay-
offs. With matters in this posture , Harold Demkee, Re-
spondent's Hayward plant manager , distributed a news-
letter, dated August 22, 1980, directed to Mack West-
ern's employees . In relevant part, Demkee stated:
I wish that there was some way I could look into
the future and tell you what the rest of the year
holds for Mack Western . . . . Mack Western, like
the other Mack Divisions and other companies, is
feeling the impact of the outside economic forces.
Needless to say, I empathize with you and the feel-
ings and anxieties you have about your position
with Mack Western . . . . It is at times like we are
now experiencing that more than ever we look to
all employees for their support to insure the contin-
ued success of Mack Western. We exist in a tough
and highly competitive world. And, in the econom-
ic climate of today, there is an even greater demand
that all of us do our utmost to insure success, not
only at this time, but also for the future . Historical-
ly, we have shown at this Division that by working
together we can overcome any difficulty. I am con-
fident that with your help we can, and will, do it
again . . . . The answer to our success now and in
the future is Us. We at all levels of the workforce
can and will achieve success through a great deal of
team effort and dedication to our jobs .. . .
Shortly thereafter, within a September 15 letter directed
to Alfred W. Pelletier, now Respondent's chairman of
the board, Complainant Union's leadership reported its
feeling that "the future of this [Hayward] plant, our jobs
and lively [sic] hood" were at stake. They reported their
realization that plant morale problems, and some lack of
concern with regard to truck quality, could be attributed
to economic conditions, past and pending layoffs, shut-
downs, Respondent's newly opened Mexican plant, and
rumors of plant closure. Chairman Pelletier was advised
that Complainant Union's leadership had determined to
draft a letter for distribution to union members which
might be helpful; that local management cooperation,
looking toward some "joint effort" with respect to such
a letter's distribution, had been solicited; that Plant Man-
ager Demkee had, however, been captiously critical of
Complainant Union's projected letter formulation; and
that the Union's letter had finally been distributed with-
out Demkee's approval. (This statement referred to a
bulletin distributed to Hayward plant workers by Com-
plainant Union's Shop Committee on August 20th; there-
in Mack Western's employees had been exhorted to help
731
improve product quality and productivity by reducing
absenteeism.)
Respondent 's chairman of the board was assured that
Mack Western ' s workers "realized and knew their plant's
problems"; that they were "very concerned" regarding
their future; that they would "do [their] utmost" to
secure it ; and that Complainant Union 's members would
"help in any way we can" to secure their jobs.
Copies of Complainant Union's letter to Chairman Pel-
letier were sent to various UAW International represent-
atives, Chairman McCafferty of the Union's Mack Truck
Council , and Hayward 's plant manager . So far as the
record shows, however, Complainant Union's letter elic-
ited no direct response from Respondent 's management
representatives.
4. Respondent's decision to close Mack Western and
consolidate production operations
Shortly after September 1, 1980, Respondent's draft
"Mack Western Study" was submitted, though still sub-
ject to revision and supplementation, to Respondent's ex-
ecutive committee . The committee deliberated , extensive-
ly, regarding the study's findings. The group included
Respondent's president, the chairman of the firm's board
of directors , and major department heads. All the com-
mittee members, with a single exception , were likewise
members of Respondent 's board of directors.
While considering this study, noted, the committee
members decided to preserve confidentiality and secrecy
with respect to their deliberations, pending a final deci-
sion with respect to Mack Western's future. Consistently
with this determination, Respondent's vice president for
industrial relations , who was, organizationally subordi-
nate to Michael Zarella, Respondent's vice president for
administration, was not, I find, directly privy to the com-
mittee's deliberations.
Determinations, herein, regarding the committee's de-
liberations must, necessarily, derive therefore from Exec-
utive Vice President Coffelt's testimony with respect
thereto. Preliminarily, so Coffelt's testimony shows, the
committee reviewed its study group's findings with re-
spect to Respondent's physical assets, productive capac-
ity, and production requirements, projected for a 5-year
period. It concluded that Respondent had excessive pro-
ductive capacity, with due regard for the state of the
economy and prospective sales levels. The committee an-
ticipated continual slow growth for the nation's econo-
my, and for the trucking industry particularly, for some
years. According to Coffelt, he believed together with
several other committee members that the economic
slowdown or decline which Respondent was then experi-
encing, together with its six major competitors, would be
more severe , and would last longer , than the normal cy-
clical downturns commonly associated with Respond-
ent's industry.
The committee noted that Respondent's separate Hay-
ward and Macungie facilities were, each, operating
below capacity; that, presumptively, the total capacity of
both plants would not be required for the foreseeable
future; and that a consolidation of production (which
could be accomplished by transferring the production of
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
three truck models from Hayward to the firm's Macun-
gie facility) would eliminate significant plant expenses,
operating costs, and management overhead. Among
other things, the committee further considered Mack
Western's failure to penetrate the country's western
truck market, consistently with Respondent's prior ex-
pectations. Respondent's share of the western market had
been 9.6 percent in 1966, when the plant opened; by 1980
it had risen, merely, to 10.4 percent.
Further, the committee noted that more than 70 per-
cent of the trucks which Hayward produced were being
sold outside of the 11 Western States which comprised
Respondent's Western region; they were being sold and
delivered within States closer to Respondent's Eastern
plants. The firm's freight costs were, thereby, being sig-
nificantly increased.
With some choice to be made, the committee, so Cof-
felt testified, considered Hayward a logical candidate for
closure. Apart from the market penetration and freight
cost considerations noted, Respondent's Macungie facili-
ty was considered a newer, modern, and far more effi-
cient plant, designed particularly for truck assembly;
concededly, its rated production capacity was higher.
Respondent's Macungie facility had been built in 1975,
based on management's judgment then that Respondent
needed greater productive capacity. It had been designed
to provide modern, efficient truck manufacturing capabil-
ity. Macungie's maximum rated daily production capac-
ity was 60 trucks per day, compared with Hayward's 35
per day. Nevertheless, during 1979, the truck manufac-
turing industry's best year, Macungie's scheduled daily
production had merely reached a 28.6-truck unit high; it
had, on occasion, dipped to 15 trucks per day. By com-
parison Respondent's Hayward facility had recorded a
35-unit daily high, with a 25-unit low, within the calen-
dar year designated. During 1980 Macungie had record-
ed daily 16-truck highs within both April and May,
while dipping to a daily low of 12 units within the calen-
dar year's last 6 months. Comparably, during what
proved to be its last full calendar year of operation, Re-
spondent's Hayward facility had produced a daily high
of 25 units for the first quarter, 22 units for the second
quarter, and 14 for the year's third quarter; Hayward's
low production level for the year, before Respondent's
closure notice, had likewise compassed merely 12 trucks
daily. When both plants were, each, producing 12 trucks
per day, Hayward was operating at 30 percent of capac-
ity and Macungie at a 20-percent level. Mack Western,
because its rated full productive capacity was lower,
would always operate at some higher percentage rate
than Macungie, up to its maximum 35-truck limit. Since
unused "excess" capacity would, necessarily, contribute
to higher unit costs, Macungie's allocable fixed costs, per
truck produced had been higher than Hayward's
throughout the 1979-1980 period. Nevertheless, given
two plants operating on daily production schedules sig-
nificantly below their rated capacity levels, Macungie
was, so Coffelt testified, preferred for retention, since it
was newer, larger, and better equipped. Initially, during
management's study, so Coffelt recalled, plans calling for
productive operation transfers involving two truck
models, rather than three, from Hayward to Macungie,
had been considered. However, because of pressure from
Respondent's marketing department which insisted that
such action would cause a loss of sales and customers de-
cisions were made to produce all three Mack Western
models within Respondent's East Coast facilities.
Respondent's executive vice president recalled that,
because of the several factors hereinabove noted, no con-
sideration had been given to reducing Hayward's rated
productive capacity to some level which would merely
satisfy anticipated Western Region market demands. Nor
were Respondent's Mack Western employees considered
for some "indefinite" layoff, rather than transfers or ter-
mination following a plant closure.
Finally, Coffelt conceded while a witness that the
committee had not considered the solicitation of legal
advice, particularly with regard to the impact of Re-
spondent's possible closure decision on the firm's bar-
gaining obligations. Respondent's management believed
so Coffelt testified that the firm was complying with its
collective-bargaining contract's terms. Respondent's
study contained a statement, among others, that no mate-
rial consequences, likely to affect a closure decision,
were anticipated from employee litigation.
Discussion and debate, bottomed on the study now
under consideration, concluded on October 31st. Re-
spondent's board of directors held a special meeting, on
that date, to consider whether Mack Western's oper-
ations should be discontinued.
When the meeting convened, three members of the
board (those who represented The Signal Companies,
Inc. which held 90 percent of Respondent's stock) were
not present. Respondent's newly designated president
John B. Curcio summarized the previously noted "Mack
Western Study" results. Following references to various
highlights of that study, Curcio declared his view that
Respondent's overall "best interest" would be served by
transferring the production of vehicles currently being
assembled at Hayward to Respondent's Pennsylvania fa-
cilities. He stated that such a transfer of production
should result in "more effective use, of corporate assets,
increased productivity, lower costs and improved prod-
uct quality." A motion authorizing and directing the
transfer of manufacturing and assembly operations, then
being conducted at Respondent's Hayward facility, to fa-
cilities currently maintained within the Allentown, Penn-
sylvania, area was thereupon made and passed unani-
mously. A press release was prepared, for distribution,
later during the day.
It should be noted, at this point, that the General
Counsel's representative herein seeks a factual determina-
tion that possible reductions in labor costs were necessar-
ily "a" factor in Respondent's closure decision. The Gen-
eral Counsel concedes, however, that Mack's decision
derived from economic considerations, solely; and that it
was, in no way, based on known or suspected antiunion
sentiments.
Several UAW officials were concurrently notified.
Specifically, International Representative Schuetz was
notified regarding Respondent's decision when the press
release was distributed.
MACK TRUCKS
5. Subsequent conferences and communications
with union representatives
a. Concerned union representatives
On various occasions, throughout a 7-month period
following Respondent's closure decision, various compa-
ny spokesmen conferred with Local 76 officials, shop
committeemen, and several UAW International repre-
sentatives. At this point, most appropriately, these sever-
al spokesmen, functioning in Complainant Union's behalf,
should be designated. They included:
Steven Yokich, UAW vice president director, agricul-
tural department director, Mack Trucks department;
Marshall Hughes, assistant to UAW vice president; Jim
Schuetz, UAW International representative assistant di-
rector, Mack Trucks department; Jerry Whipple, UAW
regional director; Earlie Mays, regional International
representative; and Howard Owens, UAW International
representative.
In Hayward, California, Paul Snyder functioned as
Complainant Union's president, throughout the period
with which this case concerned. Tony Rodriguez (var-
iously spelled Rodriquez and Rodrigues in relevant docu-
ments) served as shop chairman. In Pennsylvania,
throughout the period with which this case is concerned,
Eugene McCafferty was president of UAW Local 677,
which represented and still represents Respondent's Al-
lentown and Macungie, Pennsylvania production work-
ers. Further, McCafferty functioned as the UAW Mack
Truck Council's president.
b. Discussions and communications
(1) November 1980
On Monday, November 3, the first working day after
Respondent's closure notice, Plant Manager Demkee and
Romao met with Complainant Union's shop committee;
their session was the first of a series of weekly "good
and welfare" meetings which continued thereafter until
March 26, 1981, approximately. Among other things,
Demkee was asked whether Respondent's decision was
irrevocable, why it had been made, and whether the
matter was still open for discussion. Demkee disclaimed
knowledge with respect to such questions; he reported
that the closure decision had been made by Respondent's
board of directors, and suggested that Complainant
Union's several questions should be directed to "corpo-
rate level" management personnel. Several questions
were then raised regarding employee transfer rights, sev-
erance benefits, and related matters. Demkee and Romao
proffered some responses, and promised they would
check, with respect to questions they could not answer.
Romao declared, generally, that Mack Western's em-
ployees would receive whatever benefits their contract
provided. So far as the record shows, Romao's statement
constituted the first reference to Respondent's contrac-
tual commitments with respect to plant closure and work
transfer situations.
On November 10, when Complainant Union's shop
committee and Mack Western's management representa-
tives next met, Demkee provided those present with
some relevant statistical data: namely, the number of
733
Mack Western employees still working, the number on
layoff and leaves of absence; the number currently re-
ceiving SUB benefits, and the number not receiving such
benefits. Further, he proffered data on current produc-
tion levels and Hayward's order backlog. Responding to
questions, Respondent's plant manager reported, among
other things, that Mack Western's reduced sales could be
attributed to various "economic factors" which were af-
fecting firms throughout the truck manufacturing indus-
try; and that Respondent's prior decision to establish a
newly activated Mexican production facility had neither
influenced nor affected the firm's decision with respect
to Mack Western's closure, since that plant's production
would be sold within Mexico, exclusively. When queried
with respect to where the truck models currently being
produced at Hayward would be assembled, Demkee de-
clared that their assembly would be transferred to Re-
spondent's Pennsylvania facilities. He reported, further,
that no date had yet been determined for Hayward's clo-
sure, but that a projected timetable looking toward clo-
sure within 1981's first quarter could be anticipated.
On November 14, UAW Representatives Hughes and
Schuetz conferred with Herbert Welch, Respondent's
vice president for industrial relations, who was shortly
scheduled to retire, and Thomas Keyes, his designated
successor, regarding the Hayward facility's closure.
Their conference was held within Respondent's Allen-
town, Pennsylvania corporate headquarters.
The record, herein, reflects some divergent recollec-
tions regarding the circumstances under which this con-
ference took place. Keyes recalled that Schuetz had tele-
phoned him previously to request a conference. Schuetz
testified that Hughes and he had come to Allentown to
participate in Respondent's retirement party for Welch,
which was to be held that night; that they had visited
Welch's office seeking directions with respect to the re-
tirement party's location; and that "while [they] were
there" they had decided to broach the subject of Hay-
ward's closure. In this connection, Keyes' testimony,
within my view, merits credence.
Schuetz, I find, asked whether there was "something"
that Complainant Union or UAW International could do
to keep the plant in operation. Keyes responded nega-
tively. Respondent's several reasons for Mack Western's
closure were detailed. In that connection, references
were made to the firm's prior "study" regarding its utili-
zation of corporate assets, the fact that Respondent's Ma-
cungie facility (though a newer, modern, and more effi-
cient plant) was, then, merely functioning at one-third
capacity; the fact that 70 percent of Mack Western's
trucks were currently being sold east of the Mississippi
River; the lack of order "support" for Mack Western
production models; and various additional market' prob-
lems. When queried with regard to Respondent's timeta-
ble for Hayward's closure and work transfer, Welch, like
Demkee, noted Respondent's desire to conclude matters
within 1981's first quarter.
The record, further, warrants determinations, which I
make, that Welch declared Respondent's willingness to
discuss closure and transfer problems with union repre-
sentatives, within the framework of their master con-
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tract's appendix D, provided that whatever agreements
they might reach did not interfere with the rights of
UAW Local 677's Allentown and Macungie , Pennsylva-
nia members . Welch noted , further, that qualified Hay-
ward employees with sufficient seniority in required clas-
sifications to render them "eligible" for transfer , consist-
ently with appendix D's provisions , would be trans-
ferred, while those laid off would receive SUB payments
provided for within their master contract 's appendix C,
specifically.
So far as the record shows, Welch's statements com-
passed management 's first specific reference to appendix
D, which both parties concededly considered relevant
with respect to Mack Western's situation . At this point,
therefore , some reference to appendix D's significant
provisions would seem required . That supplementary
agreement , as previously noted , purports to define the
terms and conditions governing transfers of work, and
the consequent transfer of employees , between Respond-
ent's plants. Within the agreement , section 2 governs
transfers between those plants which Respondent operat-
ed on December 14, 1961. In relevant part, the section
provides that:
In the event of a transfer of one or more operations
from one such plant . . . to another . . . the em-
ployees affected by such transfer (but no more than
the number . . . required to perform such operation
or operations at the new plant) shall be granted .. .
the right to transfer directly to the job on the trans-
ferred work . . . . Since each transfer of operations
between plants . . . will differ from the others, the
,Company and the Union will meet promptly pending
transfer of work between plants, to determine
among other things: 1. The number of employees to
be transferred . 2. The method of canvassing and the
employees to be canvassed in the old plant . . . . 3.
The number of employees, if any, in the new plant
who are on layoff who have seniority in the classifi-
cations affected by the transfer of work . . . and
who have more seniority than the canvassed em-
ployees of the old plant who have indicated a desire
to transfer. 4. The mechanics of the actual transfer
of work from the old plant to the new plant .. . .
Details as to the application of the principles set forth
above as related to any particular transfer shall be the
subject of discussion between the Company and the
International Union and the Locals directly affected.
While it is the desire of the parties to reach mutual
agreement on the application of this Agreement to
the particular transfer involved, failure to reach
agreement on such application [,] or delay in reach-
ing such agreement [,] shall not serve to delay . . .
going forward with such transfer . [Emphasis
added.]
Appendix D, within section 3, purports, however, to deal
with a presumably distinguishable situation . It provides,
generally, that transfers of work from a plant covered by
the parties' Master Shop Agreement, to a new plant
which Respondent had not operated before December
14, 1961, should be governed by the following provi-
sions:
(a) Employees directly or indirectly affected by
such transfer who have held home spot seniority in
the jobs affected by the transfer within a period of
two (2) years immediately prior to the notice of
transfer of work shall have the right to transfer di-
rectly to the job on the transferred work provided
they are able to do such work and provided further
that such employees have the seniority to do so
(b) Upon transfer, the employee accepting such
transfer thereby waives all recall rights at the old
plant but shall carry with him to the new plant his
full old plant seniority. [Emphasis added.]
The section provides, further, that with respect to affect-
ed employees from the old plant for whom no jobs on
the transferred work may immediately be available the
new plant shall establish a recall list. Qualified employees
listed (provided they are able to do transferred work)
shall be given "preference in employment on such trans-
ferred work at the new plant" over new employees. That
preference shall continue for 18 months following com-
pletion of the transfer, provided certain conditions have
been met.
Passing, for the moment , certain provisions , within
both appendix D sections noted, which could affect some
particular worker's eligibility for transfer, and terms or
conditions of work for those transferred, the document
in question provides that transferred employees will be
paid relocation allowances, under certain circumstances,
and sets relocation allowance amounts for employees
transferred subsequent to January 31, 1977, specifically.
Returning now to Respondent's November 14 confer-
ence with UAW International Representatives Schuetz
and Hughes; the record warrants a determination, which
I make, that Vice President Welch, when he first de-
clared that appendix D's provisions would govern Hay-
ward's closure and consequent work transfers, never
specified whether section 2's or section 3's provisions
would be considered determinative. Reference to these
sections reveals, however, that, while section 2 requires
Company and union representatives to "meet promptly
.. . to determine" various matters, and provides further
that details regarding the application of the section's
principles "shall be the subject of discussion" between
the Company, the International union, and the locals di-
rectly concerned, section 3 contains no comparable spe-
cific requirements. Thus, Vice President Welch's state-
ment that Respondent would be willing to "discuss" clo-
sure and transfer problems affecting Mack Western's
workers within appendix D's parameters necessarily re-
flected a tacit acknowledgement that section 2's defined
procedures would be followed, though section 3 's particu-
lar substantive provisions might, ultimately, be deemed
controlling. I so find
So far as the record shows, neither Schuetz nor
Hughes suggested their disagreement with Welch's dec-
laration that appendix D's provisions, generally, would
MACK TRUCKS
govern Mack Western's closure and work transfer situa-
tion.
Either Welch or Keyes declared , further, that Re-
spondent would produce a canvass form, which could be
used to determine which Hayward employees wished to
transfer, comparable with those used in prior transfer sit-
uations ; Schuetz reported his familiarity with the can-
vassing process. Keyes declared , thereupon , that Richard
Peterson, corporate director of industrial relations,
would be going west to assist with appendix D's imple-
mentation , to set up a canvassing system, and to prepare
for subsequent employee transfers . Further, Keyes prom-
ised that Romao would continue to meet with Complain-
ant Union 's shop committee , to discuss convassing and
other local matters . On this note, presumably , the discus-
sion in Welch's office concluded.
Peterson did make a West Coast trip on November 18;
with Romao, he conferred with union representatives.
The group included UAW's southern California Regional
Director Whipple, Earlie Mays, and Complainant
Union 's president . Peterson declared that he was pre-
pared to discuss Respondent 's prospective work transfer,
and to answer union questions . When queried with
regard to Respondent 's timetable for employee transfers,
Peterson stated that no firm timetable had yet been estab-
lished. Whipple reported a prospective meeting with the
Governor 's office, and asked whether there was anything
that could be done to keep Mack Western operational.
Peterson noted that he had not been personally involved
in Respondent 's closure decision , but would relay Whip-
ple's question to corporate headquarters.
At this point , so Peterson's testimony , which I credit
in this connection , shows, Whipple declared that he was
not interested in "bidding against wages " but wanted in-
formation regarding some other things, such as tax con-
cessions, which might possibly enable Respondent to
keep the Hayward facility open . Peterson promised to
relay this query, likewise, to Respondent's higher man-
agement.
When Whipple finally asked which portion of their
collective-bargaining contract would be consulted, with
regard to prospective work transfers , appendix D was,
again, cited . Some general discussion followed, regarding
the plant's closure, transfer procedures , and worker eligi-
bility for various fringe benefits.
On November 24, Complainant Union's shop commit-
tee and Respondent 's Hayward plant management repre-
sentatives held their fourth weekly "good and welfare"
meeting. Among other things, Demkee was queried--
once more-with regard to Respondent's reasons for its
plant closure decision . The record warrants a determina-
tion, which I make , that Demkee provided a responsive
statement ; he cited the economic factors mentioned in
Respondent 's prior study, the Company's conclusions
with respect to poor asset utilization , Mack Western's
poor sales prospects , and management's projection that
the 19,80's would be a period of slow growth . So far as
the record shows, Complainant Union's committee mean-
bers proffered no significant response
On November 28, however , President Snyder and
Complainant Union's recording secretary Vem Correa
jointly dispatched a letter to Respondent 's chairman of
735
the board A. W. Pelletier and Company President
Curcio. On behalf of Complainant Union's members,
they reported their "deepest concern and consternation"
over Respondent's closure decision. They characterized
Respondent's decision, purportedly based on "strictly
economic" considerations, erroneous for several reasons,
which they detailed. Snyder and Correa declared that
their Local 76 and International union had made "repeat-
ed offers to examine all aspects of the profitability prob-
lem so that reasonable and humane adjustments might be
made which would help insure" continued production,
and Hayward plant jobs. They declared that Complain.
ant Union's willingness to seriously examine these prob-
lems and work toward constructive solutions had, how-
ever, been rebuffed.
This reference can hardly be considered clear; it may,
however, refer to Complainant Union's earlier confer-
ences with Plant Manager Demkee, the shop committee's
August 20 bulletin on absenteeism, and Rodriguez', subse•
quent letter to Chairman Pelletier, which, so far as the
record shows, had produced neither negotiations nor a
meaningful dialogue.
Snyder and Correa noted UAW Regional Director
Whipple's offer to undertake negotiations with local,
state and Federal Government authorities, looking
toward arrangements which might help Respondent
render Mack Western productive and profitable. Finally,
Complainant Union's representatives declared, in rele-
vant part, that:
We find it difficult to understand . . . why the Com-
pany has unilaterally taken this precipitous course of
action. We also find it difficult to understand why
the Corporation made the decision to close the plant
without any prior consultation with the Union .. .
[We] believe that decision of such critical impor-
tance to so many people are not properly the exclu-
sive prerogatives of corporate managements . . .
[A] new agreement must be made between Labor
and Management. This agreement, while recogniz-
ing the need for a fair return on sound investments,
must clearly recognize the right of laboring men
and women to share in the decision-making process-
es on issues of such critical importance to their lives
.. . Therefore we, the members of UAW, Local
Union No. 76, call upon the Board of Directors of
Mack Trucks, Inc., to re-examine the decision to
close Mack, Hayward. Based on the reasons stated
above, we believe that humanitarian and economic
considerations not only permit the continued oper-
ation of the plant but compel the Company to con-
tinue operations. [Emphasis added.]
This communication, subsequently, produced a Decem-
ber 15 reply from M. P. Zarella, Respondent's executive
vice president for administration. Declaring Respondent's
appreciation for the concerns which Snyder and Correa
had expressed, Zarella declared, nevertheless, that:
We must take all the necessary steps, however un-
popular, to reduce our overall fixed assets and to
better utilize our assets, if we are to remain viable.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union has proposed certain initiatives, includ-
ing those involving various levels of government, in
an effort to make it profitable for Mack to remain
on the West Coast. However, we have concluded
that none of these would impact on our major prob-
lem, i.e., maximizing utilization of our existing as-
sembly capacity. The decision to close Mack West-
ern was not made lightly, but only after a very long
and complete evaluation of all of our facilities. Now
that we have made our decision, that decision is ir-
revocable.
(2) December 1980
In the meantime, however, while waiting for manage-
ment's response to Snyder and Correa's letter, Complain-
ant Union's shop committee and Respondent's local offi-
cials had convened their December 1 "good and wel-
fare" session. Among other things, it produced a single,
possibly significant, exchange. Romao was asked which
employees would be called on to set up and prepare the
Macungie facility's production line, to assemble the spe-
cific truck models which Mack Western had been pro-
ducing; the committee contended that this work should
be given to transferred Local 76 workers, rather than
Local 677 members. Romao, however, replied that he
would check this matter with corporate headquarters
since it was not a matter which pertained "solely" to
Hayward operations.
Thereafter, on December 2 and 3, Union and Compa-
ny representatives participated in some wide ranging dis-
cussion, within Respondent's Hayward facility, with
regard to closure and transfer problems. Respondent's
spokesmen included Vice President Keyes, Romao, and
Mack Western's management committee; for Complain-
ant Union, International Representatives Schuetz and
Owens, and Local 76's shop committee participated.
Some significant discussion, with respect to various ques-
tions raised by Complainant Union's shop committee and
positions which it took with regard to Mack Western's
closure and work transfer, was conducted.
At the outset, Schuetz queried Respondent's represent-
atives again with respect to when the Mack Western clo-
sure decision had been made, who made it, and the firm's
reasons for that decision. Demkee reiterated his Novem-
ber 24 report that Respondent's October 31 decision had
been made by the firm's board of directors. He recapitu-
lated, likewise, his prior statements with respect to Re-
spondent's rationale. Responding to further questions,
Demkee declared that Respondent's assembly work on
Hayward's product lines would not be transferred to the
firm's Mexican plant, but would be transferred to Re-
spondent's Macungie facility. When asked what steps Re-
spondent had, therefore, taken to promote Mack West-
ern's success, Demkee cited a number of changes, im-
provements, and construction projects which had been
undertaken. Respondent's proposed canvass form, which
would be used to ascertain those "eligible" and "quali-
fied" Mack Western employees who would be interested.
in transferring to Respondent's Macungie plant, was dis-
cussed. Keyes reported Respondent's hope to distribute
those canvass forms before the plant's scheduled Decem-
ber 24 Christmas shutdown. He suggested that Peterson
would be requested to draft a form, that Schuetz could
then review it, and that required forms, when finally ap-
proved, would be sent to Romao for distribution. Keyes
suggested further that employees should be required to
return their forms by January's end. Schuetz countered
this suggestion , I find; he suggested a mid-January return
date, following which employees would have 2 weeks
within which they might change their minds, should they
so desire. Respondent's management representatives,
however, disagreed. They contended that should particu-
lar employees fail to respond by some consensually satis-
factory deadline the assumption should be made that the
particular employee had no interest in transferring. Fur-
ther, Respondent's spokesmen contended that should par-
ticular employees fail to state their positive interest by
some agreed deadline they should not be allowed to
change their minds and seek transfer privileges subse-
quently.
Responding to questions, Demkee reported that Re-
spondent's currently "estimated" timetable called for
Mack Western's production to cease by January's end;
and that production on Mack Western's product line at
Macungie, would then be scheduled to begin, within a
month or two thereafter. Schuetz asked when Respond-
ent's relocation allowance, for which appendix D, sec-
tion 4 provided, would be paid. He was advised that
transferred employees could apply for payments prompt-
ly on acquiring a bona fide residence, evidenced by some
lease or home purchase documentation, within the Ma-
cungie area.
So far as the record shows, no questions, comments or
disagreements were voiced, at this time, regarding the
amount of the relocation allowance which would be pro-
vided. No suggestion was made that the allowance
should be raised beyond the applicable contractually
stated rate.
Complainant Union's representatives, then, requested a
copy of Macungie's seniority roster. Replying, Keyes de-
clared that Hayward's current job classifications would
have to be "translated" to match Macungie's classifica-
tion system before the comparative seniority status of
Hayward and Macungie workers in specific job classifi-
cations could be measured, and before determinations
could be made regarding any Hayward employee's eligi-
bility for transferral. He promised that this task would be
undertaken promptly, and that Respondent's proposed
translation would be provided by mid-January, together
with Macungie's seniority roster. No protests were
voiced with regard to Respondent's proposed timetable.
The conference participants, further, discussed the
time which transferring employees would be given,
when required to report at Respondent's Macungie facili-
ty, following their receipt of notice regarding their con-
firmed transfers. Union representatives noted that their
Master Shop Agreement (art. 6, seniority, sec. 2(c)) re-
quired employees recalled from layoffs to report for
work within 5 working days after proper notification,
unless they could furnish some reasonable excuse; fail-
ures to report for 5 consecutive working days, without a
satisfactory reason, would cause their forfeiture of se-
niority. Because of the distance between Hayward, Cali-
a.ars^.nw 1 av V L11J
fornia, and Macungie , Pennsylvania , union representa-
tives declared their view that more reporting time would
be, needed than the nominal 5 working days which their
contract provided. Keyes promised he would "check"
with respect to this problem and report back. Eventually
so the record shows Respondent agreed that transferred
employees would have 40 additional days, beyond their
contractually defined 5-day grace period, within which
to report.
A question was raised with respect to whether the su-
perseniority status contractually provided for designated
Local 76 officials in Mack Western's employ (Mack
Western Local Supplement, art. 6, sec. 3) would affect
their status and tenure rights with respect to layoffs and
possible transfers during the Hayward facility's close-
down. With respect to this matter, likewise, Keyes prom-
ised that he would "check" and report back. A union
spokesman, at some point, asked whether employees who
transferred to Macungie, but subsequently found the area
unappealing, could return to California without losing
their contractual entitlement to layoff benefits. Keyes re-
plied that, within his view, such possibilities would have
to be discussed with Local 677, since following a transfer
the workers concerned would come under Local 677's
jurisdiction . Respondent's vice president noted, further,
that there were a number of matters, related to Respond-
ent's projected work transfer, which would affect Ma-
cungie's Local 677 members. With respect to these mat-
ters, Keyes opined that Local 677 should participate in
their discussion . He remarked , further, that when pro-
jected Macungie operations on Mack Western's product
line started management might find it necessary to recall
some laid-off Macungie workers temporarily, pending
the arrival of transferred Hayward employees . Respond-
ent's vice president declared, in substance, that he did
not want Respondent to get "caught in the middle" be-
tween the two locals; that he wished to avoid possible
liabilities "on both ends" generated thereby; and that,
therefore, he wanted to work out matters of mutual con-
cern, jointly, with both locals. No union representative
so far as the record shows questioned Keyes' comments
regarding Local 677's interest, nor did they question his
declared concern that Respondent might be "caught in
the middle" consequentially. However, International
Representative Schuetz suggested, presumably in reply,
that whatever agreements the parties might reach, con-
cerning Mack Western's closure and consequent work
transfers, should be embodied in some writing, which
"all parties concerned" including both locals, could sign.
So far as the record shows, Schuetz' comment provid-
ed the first indication that some comprehensive "closing
agreement" was wanted. Previously , within this decision,
reference has been made to appendix D, section 2, which
among other things provides that "details" regarding the
application of the principles defined therein, with respect
to any particular transfer, shall be "the subject of discus-
sion between the Company and the International Union
and the Locals" directly affected. With respect thereto
appendix D, section 2, declares, further, that "mutual
agreement" was desired . In this case, as we shall note
hereinafter, no such comprehensive agreement was ever
negotiated
737
So far as the record shows, the 2-day conference sum-
marized , herein, concluded with Schuetz' declaration
that further discussions concerning Mack Western's clo-
sure and projected transfer should be directed to him and
Representative Owens, since they would be the Union's
spokesmen in connection with any future conferences re-
garding the situation.
On December 15, however, Complainant Union's shop
committee presented Demkee and Romao with a docu-
ment designated "Union Demands on Unanswered Ques-
tions." The document compassed a complaint that Re-
spondent 's management had not satisfied a purported
commitment to supply Mack Western's employees with
canvass forms by December 12; further, five demands
were presented, followed by two questions.
Management's reaction, when presented with this com-
munication , was subsequently defined in writing on De-
cember 18 , delivered to Romao 5 days later, and present-
ed to Local 76's shop committee on December 23. Save
for a single demand, discussed below, the subjects raised,
and Respondent 's several replies, will be noted herein-
after.
Complainant Union's first demand (purportedly based
on a November 3 conversational "exchange" while the
parties were discussing transfer rights and seniority gen-
erally) sought a formal agreement whereby Hayward
workers, under certain circumstances, could voluntarily
request placement on layoff out of line of seniority. in
connection therewith , Complainant Union's shop com-
mittee presented a proposed letter "agreement" which
Respondent's management was requested to sign. In ma-
terial part, Complainant Union proposed that:
[I]f an employee covered by the contract secures
employment with another employer, prior to the
time he would have been placed on layoff from
Mack Western Operation, he may request to be
placed on layoff out of line of seniority. The Com-
pany will make every effort to honor such a request
unless the services of the employee making the re-
quest are required to facilitate the orderly closing of
the operation . This understanding will not be ex-
tended to any situation other than the acceptance
by an employee of a bona fide offer ofemployment.
This concept, designated "inverse seniority" throughout
the parties ' subsequent discussions finally resulted in a
February 12, 1981 signed agreement; that agreement will
be noted , in due course, within this decision.
Meanwhile, on December 18, while they were attend-
ing a Bridgewater , New Jersey meeting, Peterson gave
International Representative Schuetz a draft canvass
form which Respondent had used, previously, when
work was being transferred between company facilities.
Schuetz, so Peterson credibly testified, reviewed the
form; he approved the document's distribution, but de-
clared that he wanted to make sure all parties received
accurate information regarding those workers who de-
sired transfers , and that he did not wane anyone "playing
games" with the form.
In Hayward, Romao likewise received a copy of Pe-
terson's draft canvass form ; he presented it to Local 76's
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shop Committee; the Committee raised several objec-
tions, however, regarding the form's wording. When
Romao communicated these objections to Keyes, the
latter approved various word changes which Local 76's
Committeemen had requested.
Likewise, on December 18, Shop Chairman Rodriguez
filed three Hayward, California grievances. Within its
first, Complainant Union protested Respondent's closure
and work transfer decision. Complainant Union contend-
ed that Mack Western's closure had not been "justified"
economically; and that a primary factor had been Re-
spondent's new Mexican facility, wherein lower wages
would prevail. Rodriguez charged, further, that Re-
spondent had not, yet, complied with its contractual
commitment to negotiate a plant closure agreement; he
demanded prompt negotiations for that purpose. Concur-
rently, within a second grievance, Complainant Union
charged Respondent with "poor faith" bargaining, chal-
lenged those responsible for Respondent's closure deci-
sion, charged Respondent's management with deliberate
delays, and took issue with management's whole proce-
dure. Within a third grievance, Complainant Union
charged Respondent, specifically, with assigning Macun-
gie plant preparatory "set up" work, calculated to facili-
tate the production of transferred work, there, to Local
677's Macungie plant workers, rather than transferred
Hayward employees.
On December 20, Mack Western's management com-
menced the distribution of Peterson's previously pre-
pared, and presumably mutually acceptable, canvass
forms.
Shortly thereafter, specifically on December 23,
Romao received Keyes' December 18 detailed response
to Complainant Union's December 15 "Demands" docu-
ment. Romao met promptly, with Local 76's shop com-
mittee; he provided them with copies. Responding to
their "canvass form" complaint, Keyes had declared that
no commitment for a December 12 distribution date had
been made; he had noted, however, that canvass forms
had indeed been prepared and, as of December 18, were
about to be distributed. In response to committee ques-
tions, Keyes had reported that while the precise number
of workers required to perform transferred work was not
yet known, Respondent's management estimated that
some 200 workers would be needed. He had declared
that Allentown and Macungie seniority lists were being
prepared, which would enable the parties to estimate,
more closely, the number of qualified Mack Western
workers who would be finally eligible for transfer. With
respect to those job classifications which would be re-
quired at Respondent's Pennsylvania facilities, Keyes had
reported that Respondent was currently "translating"
Hayward plant classifications to match Macungie's; he
had declared his expectation that this information would
be available by the week of January 5.
Keyes had promised that he would consider, and re-
spond later, to questions which had been raised during
prior discussions with respect to whether Local 76 offi-
cials qualified and deemed "eligible" for transfer would
be permitted to exercise their transfer rights but defer
their actual transfers, by virtue of their contractually de-
fined Mack Western superseniority rights. In response to
Complainant Union's five "demands" previously noted,
Vice President Keyes' rejoinders may be summarized as
follows:
1. Complainant Union had demanded a signed "agree-
ment" consistent with its December 15 submission re-
garding so-called inverse seniority for workers who left
to accept other work before being laid off; Keyes report-
ed Respondent's willingness to discuss and negotiate
such an arrangement.
2. Local 76 had requested a commitment that workers
who had declared their willingness to transfer, when first
canvassed, but who subsequently refused a bona fide job
offer, would nevertheless be granted layoff status from
Respondent's Hayward facility. Keyes responded that
since Respondent's canvass would be required to provide
accurate data regarding the number of employees desir-
ous of transfer those workers should not be permitted to
change their minds and still retain layoff status, with its
consequent benefits, following Respondent's communica-
tion of transfer offers.
3. Complainant Union had demanded that workers
transferred to Macungie should be given a 30-day read-
justment period, within which they might decide wheth-
er to accept their transfers and remain at their new loca-
tion, or preferably be placed on layoff status from Mack
Western's facility. Keyes declared this proposal unac-
ceptable.
4. Local 76 had requested that transferring employees
be given "ample time" to report to their transferred job's
location, with due regard for their personal circum-
stances. Keyes reported Respondent's willingness to give
transferring workers 25 days' advance notice, with
regard to their required reporting date, beyond their
contractually specified 5 working days.
5. Complainant Union had queried Respondent's will-
ingness toprovide transferring workers with their
"earned vacation monies" before departure, to help them
pay relocation costs. Keyes declared Respondent's will-
ingness to provide the funds requested.
Complainant Union's committeemen voiced their dis-
satisfaction with Keyes' responses. Further, they de-
clared their impatience with Respondent's handling of
their closure and transfer discussions. Among other
things, Romao was told that International Representative
Schuetz, who had previously reported his unavailability
for discussions between early December and January 10,
need not be considered required for continued "closing"
negotiations, since Complainant Union could get some
other UAW representative. Further, Romao was present-
ed with a substantial list of labor law case citations, pur-
portedly dealing with plant closure situations. Mack
Western's industrial relations manager made notes with
respect to Complainant Union's objections; he subse-
quently reported them, within a memorandum directed
to Vice President Keyes, which he dispatched with
Complainant Union's labor law case list.
Later that same day, Shop Chairman Rodriguez pro-
vided Ramao with a letter, recapitulating Complainant
Union's previously voiced objections with respect to sev-
eral matters dealt with in Keyes' December 18 memoran-
dum. Therein, he declared further that, should UAW
MACK TRUCKS
Local 677 workers be given jobs, within Respondent's
plant where Mack Western's work was being transferred,
before Local 76's members, Complainant Union would
grieve the matter.
Concurrently, Rodriguez filed a fourth grievance;
therein he protested Respondent's recently initiated dis-
tribution of canvass forms, since they did not compass
"job offers" which the parties' governing contract pur-
portedly required.
Within his brief, Respondent's counsel notes a purport-
ed acknowledgement by Rodriguez, during cross-exami-
nation, that nothing contained within the parties' rele-
vant contracts required "job offers" to be made For
present purposes, however, no determination need be ar-
ticulated herein with respect to whether Complainant
Union's grievance was contractually well founded.
Rodriguez complained that Respondent was pursuing
delaying tactics; he requested that further meetings be
convened, shortly, wherein a so-called "closing agree-
ment" could be formally negotiated.
Between December 24 and January 4, 1981, Respond-
ent's facilities were closed for a Christmas-New Year's
shutdown. During this period, no communications were
exchanged between the parties.
On December 29, however, Rodriguez had dispatched
a letter to Victor Van Bourg, the head of a San Francis-
co law firm, Van Bourg, Allen, Weinberg & Roger, with
copies to UAW Vice President Yokich and Regional Di-
rector Whipple. Therein, Rodriguez noted first Respond-
ent's failure to notify Complainant Union, or negotiate,
before "issuing" management's October 31 closure and
work transfer notice. This, Rodriguez claimed, fore-
closed Complainant Union's opportunity to question the
closure decision or Respondent's rationale. Complainant
Union, so Rodriguez declared, was challenging the truth
of Respondent's contention that some projected "better
utilization of corporate assets" and cost reductions had
motivated the firm's decision. Later however within his
letter, Rodriguez commented that Complainant Union
felt "poor management and poor West Coast sales" had
led to Hayward's closure.
Van Bourg was notified of Complainant Union's belief
that it had been "lied to" and misled by prior company
statements denying Mack Western closure rumors. In
this connection, however, Rodriguez conceded that
Mack Western's industrial relations manager George
Windish, when queried during their 1979-1980 contract
negotiations, had merely declared he had "never heard"
rumors with respect to 'Mack Western's closure. Rodri-
guez claimed that Respondent's management was consist-
ently pursuing "delay tactics" since they never answered
questions, and since no definitive closing date had been
fixed, no transfer rights determined, and no "closing
agreement" reached. Complainant Union's shop chair-
man expressed the view that Respondent's tactics were
designed to stall matters until Local 76's bargaining posi-
tion was substantially weakened. Van Bourg's help was,
therefore, requested to "perhaps stop the plant from
moving" or bring charges calculated to forestall closure.
739
(3) January 1981
On January 5, 1981, during their regularly scheduled
"good and welfare" meeting, Complainant Union's shop
committee requested Demkee to provide projected Hay-
ward plant manpower figures. Demkee declared they
were being worked on, and would be provided when
available.
Two days later, Mack Western's management reported
that Respondent's Hayward plant would require merely
505 employees by January 30, and 489 by February 2;
that a February 6 layoff compassing 247 workers was
planned; that no more than 242 workers would be re-
quired by February 9, 93 by March 1, and no more than
63 by that month's end.
Local 76's committeemen, further, protested Respond-
ent's December 18 declaration that transferred workers
would be required to report for work, within Respond-
ent's Pennsylvania facilities, within 30 days following
their receipt of the firm's transfer offer. Romao merely
promised to refer their protest to corporate headquarters.
Also, Complainant Union's committeemen characterized
Respondent's proffered estimate, that no more than 200
Pennsylvania jobs would be created by the firm's pro-
jected work transfer, as too low. Further, they raised ad-
ditional questions regarding Respondent's handling of
employees' vacation benefits. Romao promised to check
these several matters. Subsequently he did provide the
shop committee with data regarding, the effect which
their receipt of vacation pay would have upon their pro-
spective receipt of unemployment compensation benefits.
With matters in this posture, Local 76's leadership,
presumably, determined to pursue a harder line. During
Friday, January 9 evening hours, President Snyder tele-
graphed Romao; he demanded that Respondent negotiate
the effects of Hayward's projected closure. He declared
that Respondent was not satisfying its statutorily mandat-
ed bargaining obligations; that Complainant Union had
"the right to know the reasons" for Mack Western's clo-
sure; and that Respondent would be expected to bring
"appropriate financial records and other papers" calcu-
lated to justify its decision to their net meeting, suggest-
ed for Monday, January 12, Respondent's next working
day. However, Romao saw this telegram, first, during
January 12's morning hours; the record suggests that he
proffered no immediate reply. Rather, when Complain-
ant Union's shop committee convened with him, for their
regularly scheduled "good and welfare" meeting, Romao
merely produced Respondent's previously promised se-
niority rosters for the firm's Allentown and Macungie
plants, together with "translations" whereby Mack West-
ern's job classifications might be converted to their East
Coast equivalents. Shop Chairman Rodriguez declared
however, that Romao's submissions would not be accept-
ed; he stated that Local 76 would not entertain further
discussions, regarding Hayward's closure, without its at-
torney present. Shortly thereafter, presumably, Romao
notified Snyder, within a reply telegram, that requisite
Company officials could not be made available for Com-
plainant Union's requested July 12 meeting on short
notice; he suggested that UAW International's represent-
atives, presumably Schuetz and Owens, might likewise
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be unavailable. Mack Western's industrial relations man-
ager reported, however, that Respondent would be will-
ing to meet with Van Bourg at their mutual convenience
and to satisfy its duties and obligations , whether statuto-
rily or contractually mandated.
Romao sent copies of this communication to UAW
Vice President Yokich and Regional Director Whipple.
While a witness he declared that he did so because he
thought matters were escalating , and because he felt that
Complainant Union's International might calm the situa-
tion.
On January 14, Complainant Union's shop chairman
dispatched a letter to Chairman of the Board Pelletier;
therein, 14 demands which Complainant Union consid-
ered requisite for a "closing agreement" were listed.
Within his brief, Respondent' s counsel notes cogently
and correctly that these demands were concerned solely
with the consequences of Respondent 's closure and trans-
fer decision; Complainant Union did not request bargain-
ing with respect to that decision , in connection with a
satisfactorily "closing" document' s negotiation . Since, as
we shall see , Complainant Union's demands were subse-
quently discussed in detail, by the parties , their specifica-
tion within this decision will be, for the moment, de-
ferred.
Concurrently, Rodriguez filed a grievance with Mack
Western, Charging Respondent 's corporate headquarters
with stalling , in regard to negotiations for a closing
agreement.
Likewise, on January 14, Rodriguez delivered a letter
to Romao. Therein, Mack Western' s industrial relations
manager was notified "on behalf of all employees who
have any rights under the contract" that all Hayward's
workers were willing to relocate . Rodriguez reported
that all employees had been advised not to sign Respond-
ent's canvass form, since it constituted a purportedly un-
lawful attempt by Respondent to bargain individually
with Local 76's members.
In his brief, Respondent 's counsel challenges several of
Rodriguez ' statements, within the letter now under con-
sideration . The record herein , so counsel contends, will
support determination that Respondent 's management
had, previously, shown proposed canvass forms to both
International and Local 76 representatives ; that the form
had been discussed , and modified to meet the Union's ob-
jections; that it had been presumptively "approved"
thereafter; that it had been distributed to Mack Western's
employees before the firm's Christmas break, conform-
ably with Respondent 's promised timetable ; and that
some workers had already returned canvass form replies,
disavowing any current interest in transferring. For
present purposes , however, discrepancies between Com-
plainant Union 's declared position and Respondent's
proffered rejoinder , in this connection , need not be re-
solved. We need note, merely , that Complainant Union's
spokesman , through his letter , had effectively reopened
the subject of Respondent 's canvass procedure , and its
purpose.
The next day, January 15, Complainant Union's origi-
nal unfair labor practice charge, which initiated this pro-
ceeding, was filed; Respondent was charged with 8(a)(1),
(3), and (5) violations . Complainant Union's 8(a)(3)
charge, however, was subsequently dropped.
On January 16, International Representative Schuetz
visited Romao at Respondent 's Hayward facility. The
record warrants determinations , which I make, that
Schuetz reported he, Marshall Hughes , and International
Representative Owens had been conferring with Local
76's leadership . Romao was notified that Complainant
Union planned to have its own attorney present when
the shop committee 's next session with Respondent's
management , scheduled for January 19, convened.
With respect to this conversation , Romao proffered
detailed testimony ; Schuetz, when subsequently queried,
recalled very little. While a witness, Mack Western's in-
dustrial relations manager testified straightforwardly; his
demeanor impressed me favorably . Nevertheless his prof-
fered recollections , regarding the particular conversation
now under consideration , within my view cannot proper-
ly be considered wholly worthy of credence. Romao, so
the record shows, had a subsequent conversation with
Vice President Keyes ; considered in totality , the record
in that connection suggests a possibility that his present
recollection reflects merged memories , pursuant to
which statements properly chargeable to Keyes may
have been attributed to Schuetz , and vice versa . My fac-
tual determinations with regard to these conversations,
therefore , have been reached with due regard for logical
probabilities.
Romao declared that he would telephone Keyes, who
might then communicate with Schuetz directly. Thereaf-
ter, Romao did communicate with Respondent's vice
president . Keyes reported (possibly basing his report on
Rodriguez ' January 14 letter to Board Chairman Pelle-
tier , which had presumably been received) that Respond-
ent expected Complainant Union to present some de-
mands, during their prospective January 19 session,
which the firm considered covered by this master con-
tract terms. According to Keyes, Romao was told that
Respondent would not negotiate midterm changes in sub-
stantive master contract provisions . He requested Romao
to arrange for Mark Ross, Respondent's counsel, to be
present when the parties met.
On Saturday, January 17 , Keyes reached Schuetz by
telephone . Respondent 's vice president asked Schuetz
what the problem was. Schuetz replied according to
Keyes, whose testimony in this connection , within my
view , merits credence that Owens and he had been
trying to describe appendix D's implementation to Com-
plainant Union 's representatives, and trying to reach
some consensus regarding a canvass form, but had not
had much success. He notified Keyes, consistently with
his report to Romao previously , that Complainant Union
was insisting on having Van Bourg present during their
next scheduled meeting. Keyes reported that Romao had
been requested to contact Respondent 's counsel.
While a witness , Schuetz could not recall a January 17
telephone conversation , with Keyes, specifically. The
record, however , reflects the International Representa-
tive's concession that Keyes and he had conducted a
number of January-February telephone conversations;
and that, during some five or six of these conversations,
MACK TRUCKS
Mack Western's closure had been discussed. With re-
spect thereto, Keyes' testimony, which I credit to this
connection, warrants a determination that Schuetz was
told Complainant Union was "trying to change" appen-
dix D's provisions, within Respondent's view; and that
Schuetz and he were consensually "agreed" that appen-
dix D could only be renegotiated and changed consist-
ently with procedures defined within their current
Master Shop Agreement's designated "Duration" clause,
article 32, sections 2 and 3, specifically. Keyes declared,
so his credible testimony shows, that he neither planned,
nor would sanction, deviations from their master con-
tiact's requirements. Further, Schuetz was notified that
Respondent would not bypass article 32's relevant provi-
sions. While a witness, Schuetz conceded his "agree-
ment" that article 32's provisions would govern any dis-
cussions looking toward the renegotiation or modifica-
tion of Master Shop Agreement requirements.
In connection with Respondent's defensive presenta-
tion, Eugene McCafferty, the president of UAW's Mack
Truck Council and Local 677, testified that shortly
before the January 14 developments with which we have
been concerned he, together with Local 677's shop com-
mittee chairman had conferred with Keyes regarding
Mack Western's situation. Keyes had been told, so
McCafferty recalled, that Respondent had better "stay in
compliance" with appendix D's requirements; that Com-
plainant Union was within his view trying to "infringe"
on Local 677's membership; that he and Shop Chairman
Schlegel did not wish to see such infringements develop;
that, should they develop, there would be "many griev-
ances" filed by Local 677's members; that McCafferty
did not want Local 677's members constrained to file
grievances; and that should Respondent deviate from ap-
pendix D's provisions lawsuits might be filed. Keyes, so
the record shows, had reassured McCafferty and Schle-
gel that Respondent would "abide" by their Master Shop
Agreement's terms.
While a witness, McCafferty testified, further, that
similar statements, regarding; Local 677's position, had
been conveyed to Schuetz during numerous January,
February, and March conversations. For present pur-
poses, however, this testimony within my view lacks per-
suasive relevance. Insofar as McCafferty's representa-
tions to UAW's International representative might con-
ceivably have gone "beyond" those conveyed to Vice
President Keyes, they could neither have influenced Re-
spondent's subsequently proclaimed position with rela-
tion to Complainant Union's demands nor motivated
management's reaction when confronted therewith.
When provided with a copy of Complainant Union's
January 14 demands, McCafferty and Schlegel conferred
with Keyes again. McCafferty, so his testimony shows,
reiterated his desire to see Local 677 treated fairly. He
declared that, within his view, Complainant Union's de-
mands went beyond what appendix D, section 3's provi-
sions called for, and that Complainant Union should be
required to abide by those provisions.
On January 19, pursuant to prearrangement, represent-
atives of the parties met, though their session's com-
mencement was somewhat delayed Those present in
Complainant Union's behalf compassed Counselor David
741
Rosenfeld of Van Bourg's firm, Schuetz, Snyder, Rodri-
guez, and Local 76's committeemen . Respondent ' was
represented by Counselor Ross, Demkee, and Romao,
plus two middle management representatives.
International Representative Schuetz initiated their dis-
cussion, I find, with a declaration that Complainant
Union wished to discuss some canvass form changes.
Further, he reported that Complainant Union had vari-
ous demands. When queried with respect to whether
those demands could be provided in written form, Ro-
senfeld produced a copy of Rodriguez' January 14 letter
list, which Schuetz delivered to Mack Western' s industri-
al relations manager. Romao thereupon reviewed Com-
plainant Union's list; he declared that most of them
seemed related to master contract provisions, rather than
local matters. Some discussion regarding his reported ob-
servation ensued. Finally, however, Rornao declared that
since within his view most of Complainant Union's de-
mands concerned master contract provisions, he would
refer them to Respondent's corporate headquarters; he
promised responses, but could not say when they would
be forthcoming. Inter alia, Rodriguez claimed that Com-
plainant Union had previously requested, but had not yet
received, explanations with respect to Respondent's rea-
sons for its Hayward facility's closure. Schuetz noted,
however, that Demkee had detailed Respondent's rea-
sons during their prior December 2, 1980 conference.
Union President Snyder, thereupon, requested the Penn-
sylvania seniority rosters and job classification "transla-
tions" which Romao had previously proffered. These
were provided. With matters in this posture, the parties'
discussion was concluded, with a resumption set for two
days later.
On January 21, when Complainant Union' s representa-
tives and Respondent's spokesmen renewed their discus-
sion, Local 76's negotiators appeared without legal coun-
sel; Mack Western' s management team however, report-
ed with Counselor Ross and Richard Peterson, from Re-
spondent's corporate headquarters. Romao's testimony
(which I credit in this connection) reveals that he pre-
sented several substantive proposals: First, he reported
Respondent's willingness to raise its previously proffered
"reporting time" requirement for transferred workers
from 25 extra to 40 extra days following the workers' ac-
ceptance of the firm's transfer offer; this would permit
transferred workers 45 days within which to consum-
mate relocations. Second, Respondent would permit four
Hayward workers, currently on union leaves of absence,
to retain whatever transfer rights they might have, while
deferring their actual relocation. Third, Respondent
would acquiesce with respect to Complainant Union's so-
called inverse seniority concept; thereby senior employ-
ees would be permitted to trade places with their juniors
on Respondent's layoff list, provided that both con-
cerned workers consented. Fourth, Respondent would
develop a new canvassing system, noting merely that it
would have to be consistent with appendix D require-
ments. Fifth, Respondent would permit Hayward work-
ers to change their minds regarding transfer decisions
(under particular circumstances which would have to be
defined) following their submission of completed canvass
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forms. Some discussion followed. Among other things,
Respondent's canvass forms were discussed; Peterson de-
scribed their canvassing's purpose and detailed the proce-
dures involved.
Further, Peterson's testimony warrants a determina-
tion, within my view, that Respondent's reluctance to re-
negotiate master contract matters was reiterated. The Di-
rector of industrial relations commented, further, that,
should negotiations looking toward some modification of
their current contract be initiated such negotiations
would have to be conducted in conformity with article
32's requirements. He noted further, in, this connection,
that, should their current master contract be reopened,
both contracting parties could demand appendix D
changes.
Relying, Schuetz noted his agreement, so I find, that
there were contractual provisions, pursuant to which the
parties' current master contract might be reopened, with
which the parties would be required to comply. He de-
clared, further, that negotiations concerned with "Master
Contract" matters would have to involve "all" con-
cerned UAW locals. With matters in this posture,
Schuetz suggested so I find that some informal, off-the-
record, conversations with respect to specific matters
might prove fruitful, and that their discussions should be
recessed for the day.
In connection with Respondent's defensive presenta-
tion, Company counsel proffered testimony, through
Mack Truck Council President McCafferty, that during
the January 21-22 period with which we are now con-
cerned some presumptively significant "intra-union"
communications were exchanged. These telegraphic and
conversational exchanges, which McCafferty recapitulat-
ed, purportedly revealed significantly different views,
held by Local 76's Mack Truck Council members, re-
garding appendix D's presumptive applicability to Com-
plainant Union's plant closure and transfer problems, and
Complainant Union's currently pending "demands" with
respect thereto. Upon reflection, however, I find McCaf-
ferty's testimonial proffers despite their probable believ-
ability devoid of persuasive relevance. Neither narrative
reports regarding these particular telegraphic and tele-
phonic communications, nor recapitulations of substan-
tive positions taken by the participants therein, appear to
have been communicated, specifically, to Respondent's
managerial personnel. This being so, Respondent's sever-
al statements of position (during Keyes' and Peterson's
,discussions with Complainant Union's spokesmen now
under consideration, and those conducted thereafter)
could neither have been influenced nor motivated there-
by. I so find.
On January 22, the Hayward, California dialogue be-
tween Complainant Union's representatives and Re-
spondent's spokesmen, with which we are now con-
cerned, reconvened; though Respondent's counsel was
present and participated, Van Bourg had reportedly been
delayed. He was not present when the session began.
President Snyder read a prepared list of questions, seek-
ing relevant factual information; Ross promised that re-
sponses would be provided. Snyder and Rodriguez, how-
ever, charged Respondent with "stalling" tactics, re-
newed their contention that all Mack Western workers
were entitled to transfer, and reiterated their dissatisfac-
tion with management's responses regarding their firm's
closure rationale. According to Romao, whose testimony
in this connection stands without contradiction, Rodri-
guez declared his belief that the parties' master contract
provisions did not satisfy Complainant Union's needs and
required modification. Director of Industrial Relations
Peterson, replying, repeated his previous declaration that
Respondent was not interested in renegotiating current
master contract provisions; he noted further that Re-
spondent could not, in any event, negotiate such matters
with a single local union. Peterson commented, further,
that Respondent's several reasons for Mack Western's
closure had been provided previously. He declared that
Respondent's Hayward management could, and would,
continue discussions with Complainant Union's spokes-
men, regarding those aspects of Hayward's closure
which concerned local matters. Schuetz, so Romao's
credible testimony shows, noted his concurrence with
Peterson's statement that should either party desire
master contract changes that party would have to follow
contractually mandated procedures. With matters in this
posture, the parties recessed their meeting, pending Van
Bourg's arrival.
That afternoon, when the parties met, Van Bourg and
Paul Supton, his associate, were present. Van Bourg, so
the record shows, presented a preliminary statement; he
declared that Respondent was "obligated" to negotiate,
and questioned the legality of the firm's closure decision.
He conceded that some Local 76 demands concerned
matters dealt with within master contract provisions, but
contended that some concerned "local" matters, while
some were concerned with a combination of master con-
tract and local matters. Complainant Union's counsel de-
clared his view that presumptively relevant master con-
tract provisions provided "minimum" benefits and privi-
leges for Hayward workers, which could not be consid-
ered sufficient. Finally, Van Bourg declared his view
suggestively that Respondent's current "legal problems"
might disappear, should some disposition be negotiated
for the "practical" problems with which Complainant
Union's members were confronted.
In reply, Counselor Ross reiterated Respondent's will-
ingness to negotiate, but noted that the parties' Master
Shop Agreement limited "to some extent" their ability to
negotiate, currently, regarding certain subjects. In this
connection, Ross noted, further, that negotiations con-
cerned with master contract matters would have to in-
volve all affected parties.
Following some discussion with regard to Complain-
ant Union's January 14 demands and Respondent's Janu-
ary 21 proposals, Van Bourg disclaimed any purpose to
participate further; he noted, however, that Schuetz
would remain available for a January 23 session. The
next day, when Romao met with Schuetz and Complain-
ant Union's committeemen, UAW's International repre-
sentative submitted a proposed canvass form; he declared
that, should Respondent refuse to use it, Complainant
Union would undertake its distribution. Romao prom-
ised, so his testimony shows, that he would review the
form, discuss it with superiors, and respond.
MACK TRUCKS
On January 26, when their next scheduled "good and
welfare" meeting convened, Local 76's committeemen
and Romao discussed various practical matters related to
Hayward's closure and projected work transfers. Among
other things, so Romao's credible testimony shows, Ro-
driguez was advised that Respondent was still waiting
for Complainant Union's response to management's Janu-
ary 21 so-called inverse seniority proposal.
Meanwhile, within the 2-day, January 26-27 period
which we have now reached chronologically for consid-
eration, President Snyder and Shop Chairman Rodriguez
participated in some further "intra-union" communica-
tions with Mack Truck Council representatives. Essen-
tially, council executive board officers were requested to
visit Hayward, where they could "help" resolve Local
76's closeout problems. Within a January 26 letter,
Snyder and Rodriguez were notified that contemplated
strike action on their part would not be supported, but
that Local 76's efforts to get benefits which they were
contractually entitled to receive would be supported.
Upon receiving a second Snyder-Rodriguez telegraphic
plea for assistance, Council President McCafferty com-
municated, so he testified, with various UAW Local
presidents and council executive board members. They
reported their "unanimous" view that direct assistance
with regard to matters considered proper subjects for
Hayward discussion, namely, the mechanics of Mack
Western's closure, should be provided by International
Union spokesmen rather than council representatives.
Within a January 27 mailgram directed to President
Snyder, McCafferty reported his council's position.
Though never made known to Respondent's manage-
ment, these Snyder-Rodriguez-McCafferty communica-
tions, presumably, affected Complainant Union's posture
during subsequent discussions, relative to closure and
transfer problems, with Respondent's spokesmen. They
have, therefore, been noted herein, because of their pos-
sible relevance.
On January 26, Respondent dispatched a letter over
Romao's signature, which had however been prepared
under Keyes' direction, addressed to Shop Chairman Ro-
driguez; the letter detailed Mack Truck's response to
Complainant Union's January 14 demands. Complainant
Union's shop chairman, so the record shows, received
Romao's letter the following clay.
Therein, Mack Western's industrial relations manager
noted first that his firm's response "in no way waives or
otherwise compromises" rights defined or created by the
Master Shop Agreement between the parties, or any
local supplements negotiated in conjunction therewith.
He declared generally that Respondent had "complied in
full" with the designated agreement; that it fully intend-
ed to continue compliance; and that Complainant Union
would be expected to comply, likewise. Romao asserted
that Respondent's Master Shop Agreement would not be
renegotiated. The letter noted that Respondent and the
Union had negotiated previously:
. . . over the possible closure of various of the
Company's plants and the possibly transfer of work
between plants and over the possible effects thereof
on the bargaining unit . . .
743
He described those negotiations as clearly manifested
within their master contract 's express terms, and likewise
determinable from that contract 's underlying bargaining
history. Having made this point , Romao declared that-
[T]he Company should not now be expected to par-
tially reopen Master negotiations or to modify cer-
tain portions of that Master Agreement . The Com-
pany will not do so . Indeed , the Company cannot
engage in modification negotiations with the Local
without fear of violating the Master Agreement be-
cause Article 32, Section 3 of that Agreement pro-
vides that any such modification shall be negotiated
by the top negotiating committee of the UAW-
Mack Truck 's Council, International Representa-
tives of the Union and representatives of the Com-
pany and shall be signed by the Corporate Director
of Labor Relations of the Company ., the members of
the top negotiating committee of the Council and
the Director of the UAW-Mack Truck's department
Within his letter, Romao declared that Respondent,
under these circumstances, neither could., nor would, dis-
cuss "Master" matters with Complainant Union. Never-
theless, Respondent's industrial relations manager reiter-
ated his firm's willingness to discuss, with Complainant
Union herein, matters which were "not covered" by
their master contract's provisions, matters not "otherwise
affected" by that contract's existence, and matters
"which do not in any way impact upon the rights and
interests" of other workers covered by their Master
Shop Agreement and local supplements negotiated with
respect to different plants.
Having proffered these statements of position, Romao
proceeded to detail his firm's several responses with re-
spect to Complainant Union's demands. For present pur-
poses, these responses may be recapitulated as follows:
First, Rodriguez' demand-that Complainant Union be
permitted to maintain some "separate" status, while func-
tioning with "separate" representatives, apart from
UAW's local and its designated representatives currently
functioning within the plant newly performing Mack
Western's transferred work-was designated a demand
which Complainant Union had withdrawn on January 22
previously. Respondent's management, therefore, prof-
fered no response with respect thereto. The firm's failure
to respond so far as the record shows prompted no pro-
test, thereafter, from Complainant Union's spokesmen.
While a witness, Shop Chairman Rodriguez conceded
herein that this demand had, indeed, been withdrawn
Second, with respect to four union demands, Respond-
ent proffered counteroffers, suggesting a willingness to
negotiate concessions. Specifically:
(1) Complainant Union had protested Respondent's
December 20 canvass form distribution, contending that
the firm had no right to negotiate "individually" with
Mack Western's employees thereby. In response, Mack
Truck's spokesman disclaimed any Company desire to
negotiate individually with employees. He declared that,
consistently with appendix D, section 3(a)'s provisions
canvassing procedures had been utilized merely to allow
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mack Western's workers to notify the Company regard-
ing their desire to be considered for transfer; that Re-
spondent's canvass form, together with explanatory ma-
terial, had been reviewed with International union repre-
sentatives and Local 76 spokesmen before its publication;
that several changes, which union representatives had
suggested, had been made before the form's final revi-
sion, and that its December 20 distribution, as modified,
had been undertaken with union concurrence. Respond-
ent's canvassing forms were characterized as completely
in accord with appendix D, section 3(a)'s requirements.
Nevertheless, Complainant Union was notified that "in
order to alleviate a matter of contention" Respondent
would discontinue its canvassing procedure, disregarding
any canvass forms which might, theretofore, have been
submitted. Respondent declared its willingness to imple-
ment appendix D, section 3(a) differently. All employees
would, initially, be considered on Respondent's 18-month
recall list mandated within the provision designated.
Thereafter, employees found "eligible" for transfer-con-
sistently with appendix D's provisions and relevant
master contract provisions-would be "offered the right
to transfer" with due regard for their seniority within
some appropriate classification, whenever jobs involving
their transferred work became available at new locations.
Concurrently with Respondent's transfer offer reasonable
efforts would be made to provide concerned employees
with specific reporting dates; they would be given not
less than 40 calendar days plus the 5 days specified
within the Master Shop Agreement's article 6, section
2(c), within which to report for work at their proffered
job's location. Employees accepting transfer offers who
failed to report for work within the 45-day period desig-
nated or who during that period rescinded their accept-
ance, would, however, be considered voluntary quits.
(2) Complainant Union had demanded that transferring
employees should be given "as much time as needed" to
report for work, at their new plant's location. With re-
spect thereto, Respondent reiterated its January 21 pro-
posal, previously noted, pursuant to which transferred
employees would be allowed up to 45 days within which
to report for work on recall. In this connection, howev-
er, Romao noted that article 6, section 2, of Respond-
ent's Master Shop Agreement provided a maximum
period of 5 working days within which laid-off workers
notified of their recall would be required to report for
work. Within Respondent's view, due regard for this
provision-plus due regard for the fact that relocation
time allowances would involve the "application" of ap-
pendix D's principles, and might have some impact upon
the rights of workers, elsewhere, with Master Shop
Agreement coverage-rendered the matter a subject for
negotiation above local levels. Respondent considered its
45-day proposal, therefore, a proposal submitted for
UAW International's consideration.
(3) With respect to Complainant Union's so-called in-
verse seniority demand, pursuant to which layoff status
and concomitant benefits would be granted Mack West-
ern employees who resigned before layoff to accept al-
ternative employment, Respondent noted its January 21
acquiescence Romao reported that specific details, with
respect to this proposed revision of Respondent's layoff
procedures, were currently being discussed.
(4) Complainant Union had demanded the establish-
ment of a production worker task force, organized and
subsidized by the Company, whose members could visit
Respondent's Pennsylvania plant locations and report
back on housing, schools and similar matters. With re-
spect thereto, Romao reported Respondent's continued
willingness to provide union members with "informa-
tion" regarding the various locations to which Mack
Western's work would be transferred. Complainant
Union's task force suggestion, however, was rejected. In
this connection, Romao noted that the parties had, there-
tofore, bargained over possible plant closures and/or
work transfers between plants, and with regard to the ef-
fects thereof on concerned employees; that such bargain-
ing had produced a comprehensive "economic package"
which currently included "specific features" calculated
to deal with possible plant closures, and work transfers
and their consequences; and that Respondent was pro-
viding these special features, for contractually covered
production workers, at great expense. According to
Romao, Respondent did not consider itself currently
"obligated" to renegotiate master contract commitments.
Third, with respect to four Local 76 demands, Romao
reported Respondent's considered rejection. Essentially,
Romao noted that, substantively, these demands con-
cerned master contract provisions; that they had previ-
ously been negotiated; that consensual commitments with
respect thereto were currently compassed within the
comprehensive "economic package" which appendices C
and D memoralized; and that Respondent, therefore, did
not consider itself "obligated" to renegotiate them. Spe-
cifically:
(1) Complainant Union had demanded a substantial re-
location allowance increase ($6,000) which should be
"advanced" to transferring workers. Respondent noted
that appendix D, section 5 specified relocation allow-
ances payable after October 22, 1979, for single and mar-
ried workers transferring to plants 1000 miles or more
distant. Respondent contended, further, that the allow-
ances specified were consistent with the pattern negotiat-
ed throughout the industry.
(2) Complainant Union had demanded pay for transfer-
ring workers, at their regular hourly rate, while they
were in transit to their new location. Respondent noted
that their master contract's supplemental unemployment
benefit plan agreement (app. C-2, art. I, sec. 3; art. II,
sec. 1) provides, among other things, that workers on
layoff resulting from a plant's discontinuance, who satis-
fy certain stated requirements, qualify for regular SUB
benefits; that, consistently therewith, workers laid off be-
cause of Hayward's closure and consequent work trans-
fers would be placed on layoff status pending transfer;
that they would, therefore, be entitled to receive SUB
benefits; that such benefits would constitute part of the
comprehensive "economic package" which the parties
had, theretofore, negotiated; and that they would cover
laid-off employees while en route to new work locations.
In this connection, Respondent noted further that appen-
dix C-1, section 3, of the parties' Master Shop Agree-
MACK TRUCKS
ment provided, in pertinent part, that during their con-
tract's term neither Respondent nor union parties should
request any change in, deletions from, or additions to
their SUB plan, or be required to bargain with respect to
any plan provision or interpretation. With matters in this
posture, Respondent contended that no money payments
"over and above" contractually specified SUB benefits
should be expected, and that Respondent considered
itself under no obligation to renegotiate such benefits
during their master contract's term. (While a witness,
herein, Shop Chairman Rodriguez recalled that this
Local 76 demand had been, at some point, withdrawn.)
(3) Complainant Union had demanded $20,000 sever-
ance pay for laid off workers, for each year of their serv-
ice in Respondent's hire. In response, Romao noted that
their Master Shop Agreement's appendix C-1, section 1,
and appendix C-2, article IV, provided severance pay-
ments for workers displaced because of plant closures.
Respondent contended, therefore, that the parties' bar-
gain with respect to severance pay had already been ne-
gotiated. Referring to appendix C-1, section 3's specific
"zipper"' provision , Respondent contended again that it
was under no legal obligation to bargain further, with
regard to severance pay.
(4) Local 76 had demanded the creation of a loan pro-
gram, interest free, for transferring workers, whereby
they might be enabled to purchase homes at their new
location. With respect thereto, Respondent noted again
that, during prior master contract negotiations, possible
plant closure and/or work transfer decisions and the pos-
sible effects of such decisions on bargaining unit employ-
ees, had been discussed; that collective bargaining with
respect thereto had produced agreements compassing a
"detailed, overall economic package" calculated to deal
with such possibilities; that these "agreed-upon economic
features" included SUB benefits, severance pay, dis-
placed employee transfers, and relocation allowance pay-
ments. Since Respondent considered these package com-
ponents, within its Master Shop Agreement and related
contractual commitments, quite expensive, Complainant
Union was advised that they would not be renegotiated.
(The record, herein, suggests that at some point this
demand, like several others, may have been withdrawn
by union spokesmen.)
7%ourth, with respect to five Local 76 demands, Mack
Western's industrial relations manager reported Respond-
ent's contention yet again that various matters compassed
therein had been specifically addressed and covered
within their Master Shop Agreement's appendix D provi-
sions. Further, Romao noted that these particular de-
mands involved:
[Matters] which may have an impact upon the
rights of workers elsewhere covered by that Master
Agreement.
Complainant Union was, therefore, notified that Re-
spondent believed it could not "lawfully" bargain with
Local 76 alone, regarding such matters. Specifically, Re-
spondent 's communication noted that:
(1) Complainant Union had demanded that all Mack
Western workers should be offered jobs at their trans-
745
ferred work's new location. Respondent pointed out,
however, that their Master Shop Agreement's appendix
D, section 3, contained no such requirement. Rather, it
provided, in pertinent part, that employees affected by
projected work transfers who have held so-called "home
spot" seniority in jobs affected by the transfer within a 2-
year period immediately preceding notice of their work's
transfer "shall have the right to transfer directly to jobs on
the transferred work" provided that they are able to per-
form it, and provided further that they possess the requi-
site seniority. Romao's letter noted, further, that appen-
dix D, section 3(a), specifically recognized that there
might be "affected" workers desirous of transfer for
whom no jobs would be immediately, or ever available;
that such employees "shall be placed on a recall list at
the new plant" with preferential rehire rights relative to
transferred work, within that plant, over new employees,
provided they are able to perform such work, and pro-
vided, further, that certain continuing notice require-
ments have been satisfied. Relying on these provisions,
Respondent declared a belief that negotiations, with Local
76 alone, for some modification of these provisions,
should be considered precluded.
(2) Complainant Union had demanded that "transfer
rights" should be recognized for all concerned Mack
Western employees. Contending that employee transfer
rights should be considered dependent on the given em-
ployee's eligibility for transfer, consistently with their
Master Shop Agreement's appendix D, section 3, taken
in conjunction with the number of jobs required to per-
form transferred work within its new location, Respond-
ent reiterated its position that modifications with respect
thereto could not, properly, be negotiated with Local 76
solely.
(3) Local 76 had demanded that transferred workers
should be placed in job classifications which they had
theretofore held, and specific jobs which they had per-
formed, within Mack Western's plant. Romao's commu-
nication noted, however, that appendix D, section 3,
contained detailed provisions with respect to classifica-
tion assignments and job placements relative to trans-
ferred work; that so-called new plant classifications and
rates were specifically declared applicable with respect
thereto; that, should "no classifications applicable to the
transferred work" within the "new" plant be available,
appropriate classifications and rates should be negotiated
between the Respondent and the "new"' plant's UAW
local, within the framework of the "new" plant's classifi-
cation system. With matters in this posture, Respondent
contended that, consistently with their Master Shop
Agreement's appendix D provisions, straightforward
classification for classification transfers might not be pos-
sible; that a mechanism for the resolution of differences
had been negotiated; and that changes, with respect
thereto, could not now, be negotiated with Local 76
alone.
(4) Complainant Union had proffered a double
demand, (a) that laid-off employees not transferred
should be given recall rights for periods equal to their
length of Company service, rather than merely for 18
months, and (b) that, should Respondent decide, subse-
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quently, to open some California plant, former Mack
Western employees should be hired, preferentially, by se-
niority. With respect to Local 76's first demand, Re-
spondent noted that appendix D, section 3, required the
placement of laid-off, nontransferred workers on the so-
called new plant's recall list, giving them preferential
employment rights with respect to transferred work,
within Respondent's designated new plant, over new em-
ployees, for a period of 18 months, only, following their
work transfers completion. Since these recall rights with
respect to transferred work had, clearly, been negotiated
previously, Respondent declared itself "under no obliga-
tion to renegotiate" them, and "legally unable to do so"
through negotiations with Local 76, solely. Disclaiming
any plans to open some other California plant, Respond-
ent contended nevertheless that recall and preferential
hire rights for workers in plant closure situations had,
theretofore, been negotiated and embodied in specific
master contract language. As previously noted, Respond-
ent contended therefore that modifications of such lan-
guage could not be negotiated with Local 76 alone.
(5) Local 76 had demanded that seniority should
govern with respect to "when" concerned workers
might opt for relocation. Romao's communication, how-
ever, reflects Respondent's contention that appendix D,
section 3, defines "when and how" employees shall be
transferred, together with their seniority rights, within
their new location, following transfer. Relying on this
language, Respondent contends that the subject of
"when and how" concerned workers might "elect" relo-
cation had been covered specifically within their Master
Shop Agreement's terms. (The precise applicability of
section 3's language, with respect to determining "when"
concerned workers may "elect" relocation, however, can
hardly be considered clear. The section provides, merely
that workers with seniority sufficient to render them eli-
gible for transfer shall have their "right to transfer" rec-
ognized, provided they are able to perform transferred
work, and provided further that they "have the seniority
requisite for transfer." Appendix D, section 2, provides,
among other things, that "the Company and the Union
will meet promptly pending transfer of work between
plants, to determine . . . 4. The mechanics of the actual
transfer of work from the old plant to the new plant,
taking into consideration . . . deviations from seniority
on the transfer required by the Company, and the desires
of the employees by seniority preference on the timing of
their individual transfer to the new plant." With respect
thereto, however, section 2 provides further that details
shall be the subject of discussion between the Company,
International union, and the Locals directly affected.)
Presumably basing its position on this contractual lan-
guage, Respondent proclaimed itself precluded from bar-
gaining "alone" with Local 76, regarding this subject.
When Romao, together with Attorney Hill from
Counselor Ross' office, met with Local 76's shop com-
mittee on January 27, he provided them with copies of
Respondent's January 26 letter, noted. However, Chair-
man Rodriguez, following a reading, rejected Mack
Trucks' responses; he promised a written reply. When
confronted with renewed "delay" charges, Romao and
Hill noted denials; they reiterated Respondent's willing-
ness to negotiate, subject to their master contract's limi-
tations. According to Mack Western's industrial relations
manager whose testimony, in this connection, I credit
Rodriguez declared that Local 76 representatives should
be present during all closure negotiations, and that any
agreements between Respondent and UAW's representa-
tives should be considered null and void. Before their
session recessed, Romao promised responses to some
seven questions which President Snyder and Counselor
Van Bourg had pressed, 5 days previously.
Later that day, the parties met for a second session.
Romao read his firm's responses to six questions. These
questions which, within my view, need not be recapitu-
lated dealt, generally, with Respondent's closure deci-
sion , work transfer arrangements, and Respondent's
plans. Complainant Union's spokesman had, further, de-
manded Respondent's production of those "economic
documents" which had underlain the firm's closure deci-
sion . Romao declared, however, that, in Respondent's
opinion, it was not obligated to provide this information.
Rodriguez requested that Romao's responses, which had
been read from a prepared text, be supplied in written
form. This, Romao subsequently did.
On January 30, Shop Chairman Rodriguez notified
Romao, by letter, that Mack Truck's responses to Com-
plainant Union's 14 demands were unacceptable, save for
Respondent's declared willingness to "disband" canvass
forms which had theretofore been distributed. Rodriguez
promised written responses with respect to "each of the
other thirteen items" shortly. Despite the shop chair-
man's commitment, however, Respondent's management
representatives never received such promised responses.
(4) February 1981
On Monday, February 2, Mack Western and Local 76
representatives met for their scheduled weekly "good
and welfare" session. Several topics of particular local
concern were discussed. However, questions were like-
wise raised with respect to shipments of Hayward plant
"materials" which were being "handled" by Macungie
plant workers. Additionally, I find, Local 76's so-called
"inverse seniority" demand, and Respondent's 45-day
"reporting time" proposal were discussed. The record
warrants a determination, which I make, that Romao de-
clared he was still waiting for some Local 76 reply, with
respect to Respondent's January 21 statement, relative to
inverse seniority.
Shortly thereafter, specifically on February 4 and 5,
union and Mack Trucks' representatives held some ex-
tended negotiating sessions . Many questions , relative to
Mack Western's closure and Respondent's projected
work transfer, were discussed. Steven Yokich, UAW's
vice president, functioned as chief union spokesman.
Likewise present were International Representatives
Schuetz and Owens, Regional Director Whipple, Presi-
dent Snyder, Shop Chairman Rodriguez, and Local 76's
Shop Committee.
Respondent was represented by Vice President Keyes,
Demkee, and Romao. With respect to their discussions,
five witnesses-three union spokesmen and two Mack
Trucks representatives-testified. Though somewhat di-
MACK TRUCKS
vergent, their proffered recollections-synthesized and
considered in totality for present purposes-warrant cer-
tain factual determinations . These follow.
Throughout both sessions , Vice President Yokich ver-
bally presented various union demands. Most of them
concerned subjects which Complainant Union had raised,
previously , within its January 14 communication ; several
dealt, however , with presumptively "new" matters, or
subjects which had merely been discussed generally
during prior sessions.
Preliminarily , Yokich reiterated UAW International's
and Complainant Union 's desire to secure a plant "clos-
ing" agreement ; he contended that Respondent was le-
gally "obligated" to negotiate with respect thereto. In re-
sponse, Keyes proclaimed Respondent 's willingness to
negotiate such a circumscribed "closing" document. He
declared, however, that within Respondent 's view many
union demands concerned matters which their Master
Shop Agreement , and particularly appendix D therein,
covered. Keyes reiterated Respondent 's unwillingness to
reopen or renegotiate the parties ' master contract. Fur-
ther, in that connection , he reiterated Respondent 's posi-
tion that proposals calculated to modify or supplement
Master Shop Agreement provisions would in any event
have to be considered , and concurred in, by "all" con-
cerned UAW locals.
Testifying with regard to Vice President Yokich's re-
sponse, when confronted with Keyes' repeated declara-
tions in this connection , International Representative
Schuetz reported credibly, within my view that:
He made, I think, two basic requests or statements.
He said that there are many of these things that
aren 't truly covered by the Master Agreement.
They 're just not dealt with anywhere and are the
subject for treatment by the International and the
Local Union , and that there are other things that
are covered in the Master Agreement but that need
some refinement, adjustment , discussions and that it
is possible to do that and to not have a big elaborate
meeting to get approval for them; that we had done
this many times in the past . . . . I would say that
(the word "closure agreement"] was used, and it
was used probably by Mr. Yokich and perhaps by
myself. We were impressing upon Mr. Keyes that a
closure agreement and a transfer agreement are not
the same thing. That the transfer agreement is a
narrow , little vehicle for moving people from one
job to another job. A closure agreement deals with
all the unanswered problems that emanate from a
plant closing down. Many of them that you really
don't imagine until you're there and they arise.
At some point during their 2-day conference, Keyes
noted, presumably in response to Yokich 's statement of
position , that Respondent was concerned regarding the
possible "impact" which Complainant Union 's demands
would have on Local 677, representing his firm's Allen-
town/Macungie workers. Further, Keyes proclaimed Re-
spondent's determination to avoid commitments which
would find his firm's management "caught in the
middle" with liabilities running ; to both locals . Respond-
747
ent's vice president declared, again, that he was not "au-
thorized" to change, or deviate from, the parties' master
contract, particularly in ways which might affect Local
677's interests adversely, without that Local's concur-
rence. In response, UAW's vice president suggested that
solutions for any problems which might arise between
two local unions were, entirely, his International union's
responsibility; that such problems should not concern
Respondent's management; and that Yokich would "take
care of any trouble" which Local 677 might give Re-
spondent's management.
With respect to certain union demands, Respondent's
vice president so the record, considered in totality,
shows reported his firm's acquiescence; with respect to
others, he proffered counterproposals: First, Complainant
Union had renewed its so-called inverse seniority propos-
al. Keyes acquiesced regarding the proposal's basic con-
cept, provided however that the several workers con-
cerned, those with greater and lesser seniority, should be
required to signify their concurrence regarding its appli-
cation. Second, Yokich had reiterated Complainant
Union's demand for a more acceptable canvassing
system. Respondent reported its willingness to formulate
some mutually acceptable procedure, Third, Complainant
Union's spokesman had renewed Local 7'6's previous 60-
day "reporting time" demand. Respondent's representa-
tive conceded that their contract's 5-dlay requirement
was unrealistic, but reiterated his firm's 45-day "report-
ing time" proposal. Fourth, Complainant Union, which
had relinquished its demand that recall rights for various
laid-off workers not transferred should run for periods
equivalent to their length of service, had requested that
Respondent's 18-month preferential recall period should
run from Mack Western's final closure date. Essentially,
Respondent concurred, but declared that the firm's 18-
month preferential recall period should ruin from the date
on which Mack Western's last truck was completed.
Fifth, Yokich had renewed Local 76's request previously
presented verbally that transferred workers should be
given their previously earned vacation pay "up front"
prior to their transfer. Keyes agreed, save for a minor
reservation calculated to forestall the possibility that
workers might, later during the year, qualify for SUB
benefits during Respondent's regularly designated vaca-
tion period. Respondent's vice president declared, fur-
ther, that his firm would pay transferring workers for
their "casual bonus" time, which would not normally be
payable until October, thereafter. Sixth, when queried
with respect to whether currently "unfinished" trucks
would be completed at Respondent's Hayward plant, and
whether Mack Western's employees would then be given
the work of "tearing down" their plant's production line
facilities, Keyes responded affirmatively.
However, with respect to some further Local 76 de-
mands, which Yokich renewed, Keyes proclaimed his
firm's determination to maintain Master Shop Agreement
provisions which within Respondent's view specifically
governed. Thus, when confronted with a slightly modi-
fied, but reiterated demand, by Complainant Union, for
significantly higher relocation allowances, Keyes de-
clared Respondent's determination to follow appendix
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D's defined formula, previously noted. Complainant
Union's modified "severance pay" demand was, likewise,
rejected for comparable reasons. Yokich had requested
preferential recall rights for laid-off Mack Western work-
ers, should Respondent subsequently establish "another"
plant somewhere within its Western region. Keyes noted
their Master Shop Agreement's failure to provide such
broadly phrased preferential recall rights; the preferential
recall rights of laid-off workers, he declared, would be
limited to those which appendix D specified. In Com-
plainant Union's behalf, Yokich had requested a modified
"low cost" loan program for transferred workers, calcu-
lated to facilitate home purchases; the record, considered
in totality, reflects this proposal's rejection. Complainant
Union's renewed request that a so-called "task force" be
designated to visit and scout Macungie, for the benefit of
prospective transferees, was likewise rejected. Finally,
Yokich had requested special consideration for any Mack
Western workers laid off close to retirement; their pen-
sion rights, he suggested, should "continue to grow"
under certain circumstances. Respondent's vice president
noted that, consistently with their contractually defined
pension plan, some pension benefit "growth" might be
possible; he declared, however, that the parties' currently
viable contractual provisions would govern, with respect
to pension matters.
Questions were raised regarding the number of work-
men Respondent would require, within its Macungie
plant, to perform transferred work. Further, Respondent
was requested to provide a timetable for both transfers
and projected layoffs. Responses, based on Respondent's
projections, were provided.
On February 5, I find, some extensive discussion
ensued regarding purportedly required "mergers" which
would be delineated between Mack Western's and Ma-
cungie's facially differentiated job classification systems,
the prospective impact which such merged classifications
might have on the relative seniority of various Mack
Western workers presumptively qualified for transfer,
vis-a-vis Macungie's currently laid-off personnel, and the
parties' perceived need for some "home spot" seniority
definition, pursuant to which relative seniority rankings
for Mack Western workers might be determined. Since
no "home spot" definition had, theretofore, been devel-
oped with respect to Respondent's Hayward facility-
thus making it difficult for the parties to apply appendix
D's transfer provisions-those present agreed that local
negotiations, looking toward a formulated "home spot"
definition-would be warranted. On this note, presum-
ably, further discussions were recessed.
On February 10 and 12, Romao conferred with Inter-
national Representative Owens and Local 76's shop com-
mittee. Their discussion produced consensual understand-
ings with respect to both "inverse seniority" rights, and
Mack Western's defined "home spot" concept. On Feb-
ruary 12, written agreements with respect to both mat-
ters were signed
As previously noted, the parties' Master Shop Agree-
ment, appendix D, section 3(a), provided that employees
affected by some projected work transfer "who had held
home spot seniority in the jobs affected by the transfer"
within a 2-year period immediately preceding a notice of
work transfer "shall have the right to transfer directly to
the job on the transferred work" when qualified to per-
form it and possessed of requisite seniority. In connection
with this contractual provision, the February 12 letter of
agreement negotiated by the parties provided, in relevant
part, that:
An employee's home spot classification . .. will be
defined as the classification the employee currently
holds or the highest paid Mack Western classifica-
tion he has held per Company records, by which
the employee would have sufficient seniority to
transfer to a classification at a new plant. This inter-
pretation shall be subject to the provisions of Ap-
pendix D (Transfer to Other Plants) of the Shop
Master Agreement.
Secondly, with respect to so-called inverse seniority
privileges. Complainant Union's representatives and
Mack Western's industrial relations manager negotiated
and signed a letter of agreement drafted to modify cer-
tain specified portions of their shop local agreement's
provision with respect to layoff and recall. In relevant
part, Complainant Union and Mack Western's manage-
ment agreed that:
The most senior employee(s) in the classifications
affected by a permanent layoff will have the option
of working or going on layoff if he/she so requests
it in writing, providing that less senior employee(s)
who are qualified by Company records to perform
the required work agree in writing to continue
working rather than go on layoff.
This agreement was declared applicable to Mack West-
ern's closure, solely. The parties declared their consensu-
al understanding, further, that it should establish no
precedent.
Likewise, during Romao's February 12 conference
with Complainant Union's representatives, a consensual
understanding was reached that a new canvass form
would be prepared by Mack Western's industrial rela-
tions manager; that it would be shown to Rodriguez for
his approval, and that it would, then, be distributed to
concerned Hayward workers. The parties agreed that
Respondent's canvassing would be done in several
stages-first, with those employees still working, active-
ly, within Mack Western's plant; secondly, with employ-
ees currently on layoff, or leave of absence, holding se-
niority dating back to December 1973; and, thirdly,
Mack Western's laid-off workers, remaining, with lesser
seniority.
Later in February, consistently with these consensual
arrangements, Mack Western's industrial relations man-
ager drafted new canvass forms. Rodriguez subsequently
"approved" them. They were then distributed within the
three designated employee groups, with covering memo-
randa dated February 17 and 28, and March 25, respec-
tively.
MACK TRUCKS 749
(5) March 1981
During March, Respondent's management began its
transfer offers program within Mack Western's current
work force. However, several questions surfaced, par-
ticularly with regard to Respondent's construction of the
parties' February 12 agreement regarding "home spot"
seniority determinations, and Respondent's proposed pro-
cedure with respect to staffing newly created Macungie
plant positions concerned with transferred work.
On March 17, Keyes prepared a letter, directed to
International Representative Schuetz; therein he stated
Respondent's several positions, and solicited Schuetz'
views, regarding:
1. The proper two year period within which
"home spot" seniority for Mack Western's workers
should be determined.
2. The specific "posting" and "bidding" proce-
dure which Respondent proposed to utilize when
filling open Macungie plant positions concerned
with transferred work.
3. The proper utilization of Mack Western's eighteen-
month recall list, designating employees not eligible for
immediate transfer, relative to Local 677's current list of
laid off workers considered eligible for recall.
When presented with Keyes' letter by Corporate Labor
Relations Director Peterson, Schuetz responded verbally;
in significant part, he concurred with Respondent's
stated positions. With respect to Respondent's proposed
"posting" and "bidding" procedure for Macungie posi-
tions, however, UAW's representative noted a demurrer.
Concurrently, Complainant Union's shop committee
chairman lodged a complaint with Romao, contending
that certain Mack Western workers-whom Rodriguez
listed-had been improperly passed over when Respond-
ent's initial transfer offers were being conveyed. Romao
commented so I find that Rodriguez' several complaints,
seemingly, derived from divergent Union and Company
constructions of their recently negotiated "home spot"
definition.
Complainant Union's members were so the record
shows contending for "home spot" classifications with
respect to which their seniority for transfer purposes
might be determined within "the highest paid Mack
Western classification [the concerned worker] has held
per Company records" regardless of the time period
within which that job classification may have been held.
Respondent's management, however, maintained so the
record shows that, for "home spot" and transfer pur-
poses, each concerned worker's seniority should be com-
puted for his/her highest paid job classification held
within the 2-year period directly preceding Respondent's
notification that their work was being transferred.
Romao promised to relay Rodriguez' complaint to
Keyes; he commented, however, that Local 76 and
Local 677 seemingly held different views regarding the
proper application of appendix D's relevant "home spot"
concept. Romao suggested that a conference, with Re-
spondent and both locals participating, might, perhaps,
resolve their differences.
On March 18, Romao dispatched his promised memo-
randum to Keyes; he reported his meeting with Com-
plainant Union's shop chairman, listing the Mack West-
ern workers who according to Rodriguez should have
received transfer offers. Further, he reiterated his sugges-
tion that a conference, with all concerned parties repre-
sented, might resolve their divergent views.
Likewise, on March 18, Shop Chairman Rodriguez fi-
nally filed a formal grievance , with regard to Respond-
ent's purportedly improper failure to convey transfer
offers bottomed on the parties' February 12 consensually
negotiated "home spot" definition. And, shortly thereaf-
ter, another grievance (pressed by a Mack Western
worker who, purportedly, should have received a trans-
fer offer) was likewise filed. On March 26, Demkee,
Romao, and Local 76's shop committee held their final
"good and welfare" meeting.
(6) April 1981
On April 1, consistently with Romao"s prior sugges-
tion, Respondent's management representatives met with
several UAW International , Local 76, and Local 677 rep-
resentatives. Their conference was held within Mack
Trucks' Allentown, Pennsylvania corporate headquar-
ters . The record, regarding their discussion (with respect
to which several Union and Company witnesses testified,
and with respect to which Respondent proffered "min-
utes" kept by Corporate Industrial Relations Director
Peterson, in Respondent's behalf) reflects substantial
agreement with respect to what took place. While a wit-
ness, International Representative Schuetz conceded that
Peterson 's minutes accurately reflected, though in "short-
hand" form, his conversational exchanges with Mack
Trucks' principal spokesman.
On that record, synthesized and considered in totality,
certain factual determinations with respect to what tran-
spired may, within my view, properly be considered
warranted.
At the outset, I find, Schuetz declared his view that
appendix D, section 3, was properly "applicable" with
respect to disposing of Mack Western's closure and con-
sequent work transfer problems; Keyes noted his concur-
rence. UAW's International representative , however,
commented that both parties within his view were being
"poorly served" by appendix D's language , in this con-
nection; he noted that, nevertheless, they would have to
"live with their negotiated arrangement ."' Schuetz sug-
gested that some revision should be considered for future
situations . When Keyes declared Respondent's view that
appendix D's provisions should neither be reviewed nor
renegotiated prior to their next (1982) contract negotia-
tions, Schuetz suggested that nevertheless preliminary
discussions regarding some changes "while the facts are
fresh" within everyone's mind might be worthwhile.
Keyes promised to consider this suggestion.
Thereafter, several matters carrying more "immediate"
significance were discussed. Among them: The positions
which would be available for prospective transferees
within Respondent's several East Coast facilities; the pro-
cedures which Respondent's management proposed to
follow, when staffing Macungie plant positions con-
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cerned with transferred work; Complainant Union's plea
for "speeded up" transfers ; and the procedure which Re-
spondent proposed to follow, with respect to "meshing"
or subordinating Mack Western 's 18-month preferential
recall list with Macungie's current layoff recall list,
should further staffing for transferred work subsequently
be required. Respondent' s management representatives
declared that their firm' s immediate transfer program
would be considered complete when Macungie's new
production line, for Mack Western's transferred work,
was sufficiently manned to produce 12 trucks per day;
they estimated that, by May 11, this production level
would be reached.
When Rodriguez questioned Respondent's reported
utilization of current Macungie plant workers to perform
preparatory "set up" work on the plant's new production
line, that plant's industrial relations manager declared
that such preparatory work was not considered trans-
ferred work, and that "extra people" currently perform-
ing such work would not remain, following its comple-
tion.
Questions were raised regarding the seniority which
Mack Western workers , listed on their plant's 18-month
recall roster, would carry with them should they subse-
quently be transferred. Complainant Union's representa-
tives declared their view, with Schuetz' concurrence,
that such employees should be granted full seniority, fol-
lowing their transfer; Local 677's spokesman contended,
however, that such transferees should be granted entry-
level seniority merely. Vice President Keyes proclaimed
Respondent's view that Mack Western workers, recalled
from their closed plant 's 18-month list, should be granted
"date of entry" seniority on Local 677's Macungie se-
niority roster, while retaining their full service credit for
vacations, pension rights, and further fringe benefit pur-
poses. Differences between the parties, in this connec-
tion, were not resolved. UAW's International representa-
tive, however, declared his belief that their disagreement
might never require resolution, since the depth of Re-
spondent 's Macungie plant layoffs rendered it very un-
likely that Mack Western workers listed for subsequent
recall would receive transfer offers within 18 months.
Finally, several matters which particularly concerned
Mack Western workers were discussed. These com-
passed: Mutually arranged "early retirement" privileges
for some ; possible unemployment compensation claims
by retirees; various insurance and health benefit claims;
and the prospective transfer rights of four workers cur-
rently on union leaves of absence. Schuetz declared
UAW International's view that they should, eventually,
be permitted to exercise their transfer rights, retroactive-
ly. when their current leaves of absence terminated;
Keyes reported his belief that some arrangement, with
respect thereto, could be reached. On this note, the con-
ference ended.
(7) May 1981
Shortly before May 6, UAW Vice President Yokich
dispatched a letter to various International, Local 76, and
Local 677 representatives, responding to communications
received from various Local 76 members regarding Re-
spondent ' s disputed construction of their negotiated
"home spot" definition. The record warrants a determi-
nation, which I make, that Rodriguez, one of the letter's
recipients , provided Mack Western' s Industrial Relations
Manager, Romao, with a copy of Yokich's communica-
tion.
With reference to complaints registered by concerned
Local 76 members who had been denied transfer by Re-
spondent, consistently with its construction of their Feb-
ruary 12 agreement's provision, Yokich proffered several
comments . In relevant part , his letter read as follows:
It appears the "Transfer of Work to Another Plant"
is covered by Appendix "D" of the current agree-
ment, and has been so covered since 1964 , with no
concerted effort to change the language although
there have been several transfers of work in the in-
tervening years. Faced with the limitations of the
language in Appendix "D," your local committee
attempted , quite legally , to negotiate an appropriate
"homespot" concept for Mack Western members
that would give seniority employees greater oppor-
tunity to transfer . . . . It appears, now, that the
Company is placing a different interpretation on the
letter agreement than the local union and saying the
two-year period, as set forth in Appendix "D," is
also in effect with the letter agreement because of
the last sentence, which they say . . requires the
same two-year homespot concept embodied in Ap-
pendix "D" . . . If they apply the 2/12/81 letter
agreement as the Mack Trucks Unit of Local 76 in-
dicates it should be applied, then the employees
who have seniority will have the opportunity to
transfer in a classification where their seniority will
make them eligible.
With matters in this posture, Yokich suggested that
grievances should be filed by any disadvantaged Local
76 members , and that, if necessary, such grievances,
should be taken through arbitration.
Complainant Union 's shop chairman responded with a
May 7 letter, directed to Yokich; copies were dispatched
to various International representatives, and President
McCafferty of Local 677. A copy was hand delivered to
Frank Romao, Mack Western's industrial relations man-
ager. Referring to Respondent 's purported failure to
"honor [their Feb . 12, 1981] agreement" Rodriguez pro-
claimed Complainant Union's determination to seek
UAW International 's assistance in obtaining a quick arbi-
tration date, whereby grievances already "in the system"
dealing with Respondent's purported failure to bargain in
good faith might be resolved . Among other things, Com-
plainant Union 's shop chairman declared:
We feel that the language written in 1964 does not
fit our problem because we are [losing ] our plant
and our work is going to Macungie and our people
should follow the work.
Consistently with his proclaimed view, Rodriguez de-
clared that "as many of the Hayward employees as possi-
ble" should be placed in positions concerned with trans-
ferred work, within Respondent 's Macungie plant.
MACK TRUCKS
Further, Rodriguez renewed his previous complaints,
with Romao, that other Mack Western workers were
being improperly denied transfer offers. On May 18,
Complainant Union's shop chairman filed a formal griev-
ance charging Respondent's local and corporate level
management with "failures to adhere" to their February
12 negotiated "home spot" agreement. A copy of Rodri-
guez' grievance was dispatched promptly to Vice Presi-
dent Yokich, with a covering letter.
(8) Subsequent developments
Rodriguez' grievance was subsequently referred to ar-
bitration before Arbitrator Stanley L. Aiges, the parties'
permanent arbitrator under their master contract. On
July 29, 1981, the required arbitration hearing was held.
Likewise, on that date, representatives of Respondent,
UAW International, and Complainant Union negotiated
and signed a formal "Memorandum of Agreement" cal-
culated to dispose of Complainant Union's other pending
grievances. One grievance was withdrawn:
.. . without prejudice to the Union's opportunity
for further discussion of the subject matter con-
tained therein only in the event a ruling favorable to
the Union is forthcoming in the pending NLRB
unfair labor practice charge.
Complainant Union agreed, further, that five designated
grievances would not be processed further; with respect
to these grievances, the parties agreed that the subject
matter contained therein should "rise or fall" based on
the outcome of the Union's Board charge. Another
grievance was "settled" pursuant to a consensual under-
standing that Respondent had complied, and would con-
tinue to comply, with relevant "Master Agreement,
Local Agreement and all Benefits Agreement" provi-
sions . The remaining grievances outstanding were settled
with Respondent's commitment to pay a lump sum of
money, which would be distributed consistently with
some "mutual agreement" reached by the parties.
In the meantime, however„ various employee transfers
from Respondent's Hayward facility to Macungie contin-
ued. Necessary undertakings, looking toward Mack
Western's plant closure, likewise proceeded. Both Hay-
ward's closure and Respondent's work transfer process
were concluded by June 30, 1981, approximately. On
July 15, Romao sent letters to those employees who had,
previously, declared their desire to transfer, but who had
not yet received transfer offers. The letter recipients
were notified that they were being placed on Respond-
ent's 18-month recall list for preference in hiring at Ma-
cungie, consistently with appendix D, section 3(a)'s re-
quirement, and that their preferential recall rights would
extend from July 1, 1981, through December 31', 1982,
provided however that Respondent was supplied with
contractually required periodic notices regarding their
continued desire to be considered for such recall.
On August 10, Arbitrator Aiges rendered his decision
on Rodriguez' formal "home spot" grievance. He con-
cluded that Respondent's management had,properly ap-
plied relevant appendix D, section 3(a), language when
determining "home spot" seniority for Mack Western's
751
concerned workers desirous of transfer. Specifically,
Aiges held that, within its first paragraph, the parties'
February 12 agreement had defined "home spot" seniori-
ty broadly. He noted however that the document in
question contained a plainly stated provision, further,
whereby the parties' negotiated "home spot" definition
was rendered subject to appendix D's provisions. Since
those provisions granted qualified employees transfer
rights, which might enable them to follow transferred
work, solely in situations where they had held "home
spot" seniority in job classifications related to positions
affected by the transfer "within a period of two (2) years
immediately prior to the notice" that their current work
was being transferred, workers who had accumulated
such seniority while holding affected positions within
some period more than 2 years prior to Respondent's
notice of work transfer could claim no such right. Rodri-
guez' grievance was, therefore, denied.
With matters in this posture, one final comment re-
garding the parties' situation seems warranted. Despite
their frequent conferences, and presumptively exhaustive
discussions, with respect to Respondent's planned con-
solidation of productive operations and Mack Western's
consequent closure, no comprehensive "transfer agree-
ment" or "closing agreement" was ever negotiated and
signed.
C. Discussion and Conclusions
1. Respondent's request for deferral to arbitration
a. The question presented
While the Act (Sec. 10(a) specifically) provides that
this Agency's power to prevent unfair labor practices
shall not be affected by any other means of adjustment
or prevention which has been, or may be, established by
agreement, law or otherwise, the Board has with judicial
concurrence, developed a policy of voluntary deference
to contractual grievance and arbitration procedures,
under certain circumstances. Collyer Insulated Wire, 192
NLRB 837, 839-842 (1971). See, likewise, Roy Robinson
Chevrolet, 228 NLRB 828 (1977). Further, note this
Board's most recent recapitulation and reaffirmation of
Collyer deferral policies, albeit within a factual and statu-
tory context, however, not presented within this record,
in United Technologies Corp., 268 NLRB 557 (1984). Con-
sistently therewith, Respondent's counsel, within his
brief, has renewed his previous "request" that further
proceedings herein should be deferred, so that "underly-
ing questions of contract interpretation and application"
might be submitted to the parties' contractually provided
grievance/arbitration procedure.
Essentially, Respondent contends that, while its man-
agement representatives may concededly have been "ob-
ligated to bargain" with Complainant Union regarding
certain matters, they had no legal duty to bargain re-
garding other plant closure and transfer matters. And
whatever the extent of Respondent's duty to bargain, so
counsel contends, that obligation was related to matters
susceptible of bilateral disposition through the proper
"interpretation and application" of controlling contrac-
tual provisions. Respondent suggests, therefore, that
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whatever disputes the present record may reveal can be
resolved through contractually defined grievance proce-
dures, with final arbitration possible, should such a refer-
ence prove required.
b. Discussion
When the plant closure and work transfer situation,
with which this case is concerned, developed and, like-
wise, when this case was heard,'the Master Shop Agree-
ment currently in force contained no specification, what-
soever, drafted to define the matters cognizable under
that document's grievance and arbitration procedures.
(See art. 5, sec. 1-17, "Grievance Procedure," in this
connection.) The contract mentioned "grievances" and
"complaints" merely, though it did require that written
grievances must "identify" whatever contract provisions
grievants might be relying on for support. Supervisors
were, likewise, required to designate any contract provi-
sions purportedly supportive of their grievance disposi-
tions.
Under the Master Shop Agreement designated, griev-
ances which have not been settled through multiple step
grievance procedures become "disputes" which may be
submitted for arbitral disposition. In that connection, the
contract provides for a permanent arbitrator's designa-
tion, qualified to consider and dispose of such submis-
sions. The arbitrator must "interpret and apply" the
Master Shop Agreement and supplemental agreements.
In conventional terms, the parties' contract provides, fur-
ther, that their permanent arbitrator "shall have no
power to add to, or subtract from or modify, any of the
terms" within their agreement or supplements, save as
such power may be specifically conferred, by some
master contract provision or some "other" consensually
negotiated commitment.
With matters in this posture, questions arise necessarily
with respect to whether any reasonable probability exists
that the various unfair labor practice issues raised by
Complainant Union's charge, herein, could be considered
and resolved, under the contractual grievance and arbi-
tration procedures noted, consistently with this Board's
statutorily based decisional requirements-those set forth
within Spielberg Mfg. Co., 112 NLRB 1080 (1955), par-
ticularly. Such a reasonable probability will, most likely,
be present should a determination be considered warrant-
ed that the General Counsel's several unfair labor prac-
tice contentions, and the questions which arbitration
might resolve, both turn on the meaning or application
of disputed contract provisions-particularly so when
the relevant contract provisions reflect some "fleshing
out" of statutory obligations.
In Collyer Insulated Wire, supra, this Board found de-
ferral appropriate because it considered the relevant
"contract and its meaning" central to the parties' dispute.
Compare Roy Robinson Chevrolet, supra. Therein, Chair-
man Murphy, whose concurrence generated the Board
majority which found deferral warranted, declared that:
Issues involving purely the interpretation of the rights
and obligations of the parties under a collective-bar-
gaining agreement are particularly suited to the arbi-
tral process. [Emphasis added.]
Although such issues might likewise give rise to Section
8(a)(5) charges. The General Counsel had contended,
therein, that the concerned employer's unilateral decision
to eliminate an automobile body shop operation, without
first notifying and/or bargaining with the labor organiza-
tion which represented its body shop employees, violated
Section 8(a)(5) of the statute. Chairman Murphy noted
with due regard for the contractual provisions relied on
by the concerned employer that the issue of whether that
employer had a right, under the contract, to take the
action which it took was clearly one of contract inter-
pretation, which an arbitrator would be peculiarly com-
petent to resolve. Further, Chairman Murphy's concur-
rence noted that:
... an arbitrator is not competent to decide wheth-
er an employer's conduct violates Section 8(a)(5) of
the Act. The issue to be deferred in this case how-
ever is not whether a violation of Section 8(a)(5)
occurred, but whether Respondent had a right
under the contract to eliminate the body shop and
consequently, to discharge the body shop employ-
ees. [Emphasis added.]
Consistently with Chairman Murphy's view, the question
raised by Respondent's request for deferral herein may,
therefore, be posed thusly: First, whether, consistently
with certain relevant Master Shop Agreement provisions,
Respondent had a right to reach determinations, unilater-
ally, with regard to Mack Western's closure, and conse-
quent work transfers; second, whether Respondent's man-
agement could, rightfully, take the positions which it
took consistently with its master contract commitments
and relevant supplemental contract provisions when con-
fronted with Complainant Union's several demands rela-
tive to plant closure procedures and proposed work
transfer arrangements; third, whether disputes, with re-
spect to these matters, would, in fact, be susceptible of
resolution through a resort to the grievance machinery
consensually established by the parties; and fourth,
whether this Board may reasonably conclude that a
resort to contractual grievance/arbitration procedures by
the parties could, or would, resolve disputed questions in
some manner compatible with statutory objectives.
Mindful of these considerations, we must now review the
situation presented herein.
Complainant Union's definitive grievance, with respect
to Respondent's plant consolidation and work transfer
decision, filed by Shop Chairman Rodriguez on Decem-
ber 18, 1980, took "issue" with that decision, charged
Respondent with a failure to provide some reasonable
"justification" for its projected move; and requested the
decision's reversal, with displaced workers made whole
for moneys lost. Rodriguez cited no contractual provi-
sion, however, supportive of his grievance. He charged,
rather, that his complaint raised "policy" questions. In
response, Respondent declared:
[That] the Company's decision to close one of its fa-
cilities and transfer the work to another facility is a
management decision and not subject to the griev-
ance procedure or arbitration.
MACK TRUCKS
Like Complainant Union's shop chairman , Respondent's
management cited no contractual provision purportedly
supportive of the firm's determination that Rodriguez'
grievance merited denial . Mack Western's supplemental
shop agreement , however, does contain a provision (art.
1-A, Management Prerogatives), pursuant to which "all
matters" concerning the management conduct and con-
trol of Respondent's business and plant operations remain
that firm's exclusive responsibility "subject to any limita-
tions or requirements" laid down by law. Taken at face
value , this provision would seemingly privilege Respond-
ent's unilateral plant consolidation and transfer decision,
subject to whatever limitations or requirements Section
8(a)(5), and relevant decisional doctrines bottomed there-
on, might impose . Thus arguably deferral might, conceiv-
ably, be considered appropriate, since a resolution of the
contractual issue presented would be "congruous" with a
resolution of the statutory unfair labor practice question.
See Banyard v. NLRB, 505 F.2d 342 (D.C. Cir.), in this
connection . This possibility will be considered , further,
within this decision.
With respect to Complainant Union's December 18
companion grievance concerned with Respondent's so-
called "effects" bargaining , however, the requisite con-
gruity between some conceivable resolution of the con-
tractual issues raised , and those presented for disposition
within the General Counsel's amended complaint, can
hardly be considered clear. Through its grievance, Com-
plainant Union had charged Respondent with "bargain-
ing in poor faith" regarding its plant closure decision,
and failures with respect to contract compliance . Further
Complainant Union had taken "issue" with manage-
ment's "whole procedure" regarding its plant closure an-
nouncement, and their negotiations concerned with
Mack Western's closure, which followed . In response,
Mack Truck's management had declared that:
Terms and conditions governing the transfer of
,work and employees from one Company Plant to
another are covered in appendix D of the Master
Agreement .' ... The Company has and will con-
tinue to comply with this agreement . .. .
Respondent's management , therefore, characterized
Complainant Union's grievance as lacking justification;
the grievance's withdrawal was requested.
With issue thus joined , the precise nature of the sub-
stantive "dispute" which a Master Shop Agreement arbi-
trator might be required to resolve, with regard to "ef-
fects" bargaining , may legitimately be considered ques-
tionable . Conceivably, the permanent arbitrator designat-
ed by the parties could be requested to determine,
merely, whether Respondent had a right, under the con-
tract, to take a firm position during negotiations that the
terms and conditions which should govern its projected
"1 ransfer of work and employees" from Hayward, Cali-
fornia, to Macungie were those currently defined within
appendix D, which Respondent would neither consent to
modify, nor supplement , during the Master Shop Agree-
ment 's term.
Since an arbitral decision directed to the question thus
posed (namely, a decision that Respondent 's determina-
753
tion to "stand pat" with regard to appendix D, while
complying with its current formulation, should be con-
sidered contractually permissible) would, presumably, re-
solve any dispute, on that score, compatibly with statuto-
ry objectives, such a resolution would clearly be substan-
tially "congruous" with a resolution of statutory unfair
labor practice issues.
On the other hand , arbitral decisions might, arguably,
be sought with respect to whether Complaint Union's
several specific "demands" or "proposals" compassed
matters which appendix D did not cover or matters puta-
tively covered therein which, nevertheless, required re-
finement or clarification with respect to which Respond-
ent might properly be considered duty-bound to bargain.
The record , previously summarized , reveals that
within a 3-month period (between December 15, 1980,
and February 5, 1981, specifically) Complainant Union
presented several demands with respect to 'which Re-
spondent quickly acquiesced , several with respect to
which the firm's management proffered counterpropos-
als, and several with respect to which Respondent "ulti-
mately negotiated consensual commitments . Further, sev-
eral Local 76 proposals were rejected , primarily, because
Respondent considered them unwarranted breaches of
the comprehensive "economic package" which the par-
ties had previously negotiated . Some seven union de-
mands, merely, were rejected because they would, pre-
sumably, have involved modifications, or some supple-
mentation , of appendix D provisions , or because their
"adoption" would prospectively affect Macungie plant
workers, and because they would therefore have re-
quired negotiations conducted, conformably with Master
Shop Agreement provisions, by "all" concerned, con-
tractually specified , parties.
Such arbitral decisions , therefore , would not, necessar-
ily, turn "purely" on determinations regarding the mean-
ing or application of the disputed contract provisions.
Rather, they would presumably require some "'balancing
of competing interests" prerequisite to their disposition.
And since the parties ' Master Shop Agreement, article 5,
section 11, denies their permanent arbitrator "power to
add to, or subtract from or modify " contractual terms
disputes presented for disposition in this guise might not
be susceptible of resolution within the arbitral forum.
c. Conclusions
With matters in this posture , I find Respondent 's pres-
ently renewed request that proceedings herein should be
suspended pending a referral of certain disputed ques-
tions to contractual grievance and arbitration procedures
not worthy of Board concurrence . My several reasons,
for recommending that request 's rejection , follow.
First: Respondent 's present declaration of willingness
to submit Complainant Union's several "grievances" or
"disputes" to arbitration, within my view, comes too
late. When Complainant Union's December 18, 1980,
grievance concerned with Respondent's plant closure de-
cision was filed , Respondent 's management promptly
designated its determination a pure "management deci-
sion" not subject to contractual grievance/arbitration
procedures . Subsequently , while Complainant Union's
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge with respect thereto was being investigated by
this Board's Regional Office, Respondent proffered no
indication so far as this record shows that some reference
to arbitration, with respect to the matter, would be wel-
come. Neither before the General Counsel's original
complaint issued, nor subsequent thereto, did Respondent
suggest deferral. No references to some Collyer deferral
can be found within Respondent's present answer. Thus,
as Complainant Union's counsel cogently notes, within
his brief, the firm's deferral request was first presented
during some "13th hour" remarks proffered by counsel
when the hearing, herein, convened. Under these circum-
stances, Respondent's request within my view merits no
serious consideration. Purely and simply, it constitutes
nothing more than a tactical "ploy" calculated to post-
pone, further, some Board disposition of significant statu-
tory questions.
Second: Though Respondent currently contends that
Local 76's basic grievances raise "many questions of con-
tract interpretation and application" the firm's counsel
cites no specific contractual provision then in effect be-
tween the parties which, purportedly, justified its con-
cededly unilateral plant closure and work transfer deci-
sion. Conceivably, Respondent's management might have
relied on the "management prerogatives" defined, gener-
ally, within Mack Western's local supplementary con-
tract. Previously, however, we have seen within this de-
cision that management's exclusive responsibility for
"matters relating to the management, conduct and con-
trol of the business of the Company and the operation of
the plant" have been, specifically, declared subject to
"limitations or requirements" imposed by law. Thus, the
scope of Respondent's contractually sanctioned manage-
ment prerogatives, with respect to Mack Western's clo-
sure and consequent work transfers, will necessarily
depend entirely on some arbitrator's determination with
respect to what the National Labor Relations Act, and
relevant Board or court decisions thereunder, permit.
Within her Roy Robinson Chevrolet concurrence, Chair-
man Murphy particularly noted however that arbitrators
cannot be considered competent to decide, specifically,
whether a concerned employer's conduct violates
8(a)(5)'s refusal-to-bargain proscription. Further, with
matters in their present posture, I note that Board absten-
tion herein (which would, indeed, require the parties' ar-
bitrator to determine, specifically, whether a statutory
violation had occurred, rather than to resolve disputed
questions of contract interpretation) would go beyond
deferral, and would, within my view, approach abdica-
tion. This, the Board has been judicially admonished to
eschew. See Banyard v. NLRB, 505 F.2d 342 (D.C. Cir.
1974); Provision House Workers Local 274 v. NLRB, 493
F.2d 1249 (9th Cir. 1974), in this connection.
Respondent, presumably, seeks deferral likewise with
regard to Complainant Union's several bargaining de-
mands, concerned with "terms and conditions governing
the transfer of work and employees" from Mack West-
ern's Hayward plant to Respondent's Macungie facility.
Within his brief, Respondent's counsel notes however
that Complainant Union's various demands, in this con-
nection, reflect "conflicts of interest" between Complain-
ant Union and UAW's Allentown/Macungie local.
Respondent 's counsel suggests , particularly , that Com-
plainant Union was pressing "contract claims," which
conflicted with Local 677's position . Counsel suggests,
further , that should both locals maintain their differenti-
ated positions his client might face multiple liabilities.
Previously , however, within this decision , reference has
been made to Complainant Union's several proposals
concerned with various rights, privileges , and status
sought for Hayward workers , particularly, whether
tagged for transfer or considered subject to layoff. With
respect to some of these proposals , Respondent con-
curred. Regarding others, Respondent noted substantive
rejections , bottomed upon management 's reluctance to
renegotiate a settled "economic package" during their
contract 's term . Concerning a limited group of demands,
merely, Respondent premised its rejection on manage-
ment's reluctance to negotiate purported appendix D
modifications or additions , which might conceivably
have some prejudicial "impact" on the firm 's Macungie
workers. With respect to these last mentioned Local 76
demands, however , the union negotiators had not, really,
raised "conflicting " claims regarding the proper interpre-
tation of appendix D's provisions ; they were , rather,
seeking a consensus with respect to matters not "cov-
ered" therein , or matters which would , clearly, require
appendix D's modification or supplementation.
On this record , therefore, Respondent 's counsel, essen-
tially, seeks Board concurrence with a request for defer-
ral which would , realistically , permit the parties to
pursue "interest" arbitration , rather than some adjudica-
tion of their respective contract rights. The parties'
Master Shop Agreement 's arbitration provision , howev-
er, vests no power, with respect to such noncontractual
arbitral determinations , with contractually designated ar-
bitrators.
In this connection , further , I note Board Chairman
Miller's determinative concurring opinion in Oak Cliff-
Golman Baking Co., 207 NLRB 1063 (1973 ), discussed in
Roy Robinson Chevrolet , supra at 830 ; that opinion reveals
his view which I find persuasive that deferral would not
be appropriate in cases which involve "no claim, and
indeed no room for any finding, that the contract's terms
even arguably authorize" conflicting positions taken by
the concerned parties. In such cases so Chairman Miller's
concurrence clearly suggests the question of whether a
concerned employer's negotiating posture violated its
statutory obligation would not turn on any underlying
dispute over the meaning of some presumptively relevant
contract 's terms. Nor would it turn on such disputes
herein.
Third: Should a determination , nevertheless , be consid-
ered warranted despite various considerations previously
noted that some matters currently in dispute between the
parties would be susceptible of resolution through their
contractual grievance and arbitration procedure, Collyer
deferral with respect thereto , within my view, would
still lack justification . As previously noted, Respondent,
UAW International and Complainant Union's representa-
tives, on duly 29, 1981, negotiated a formal "Memoran-
dum of Agreement" calculated to dispose of Complain-
ant Union 's several "outstanding" grievances . With par-
MACK TRUCKS 755
ocular reference to Complainant Union's December 18,
1980 grievance relative to Respondent's plant closure
and work transfer decision„ and several other grievances
concerned with that decision's consequences, Complain-
ant Union agreed to suspend further processing. The par-
ties, likewise, memorialized their "agreement" that the
subject matter dealt with in these particular grievances
"shall rise or fall" depending on the outcome of this
Board proceeding. Clearly, Respondent's management
through its commitment noted has, effectively, waived its
currently claimed privilege with respect to requesting
Coll ver deferrals. I would so find.
2. Respondent's decision to close Mack Western
a. The question presented
As previously noted, the General Counsel contends,
herein, that Respondent's decision to close its Hayward,
California facility, and to consolidate that facility's pro-
ductive operations within its Macungie, Pennsylvania
plant, was a decision with respect to which Respondent
was obligated to bargain. Respondent maintains, contrari-
wise, that management was not "legally" obligated to
notify Complainant Union beforehand, regarding its pro-
spective decision, to discuss that decision with union rep-
resentatives or to entertain negotiations with respect
thereto.
Neither party, however, bases its contention on con-
tractually defined rights or privileges. As previously
noted, Shop Chairman Rodriguez, when filing his De-
cember grievance with respect to Mack Western's clo-
sure decision, cited no supportive contractual provision.
Similarly, Respondent's management when rejecting
Complainant Union's grievance cited no contractual lan-
guage supportive of that grievance's disposition.
Though Respondent did claim that Mack Western's
closure reflected a management decision, article 1-A,
"Management Prerogatives" within Mack Western's
Local supplement contract rated no mention. Presum-
ably, Respondent refrained from citing this conceivably
relevant and dispositive contractual provision because
management's prerogatives, defined therein, were specifi-
cally designated subject to "limitations" or "require-
ments" imposed by law.
With matters in this posture, the General Counsel,
Complainant Union, and Respondent necessarily derive
their respective positions from significantly conflicting
views regarding the proper scope of Respondent's statu-
torily defined bargaining obligation, conjoined with
8(a)(5)'s designated "refusal to bargain" proscription.
In this connection, Respondent concedes that Section
8(d) of the Act specifically defines a concerned employ-
er's statutory duty to bargain with respect to wages,
hours, and other terms and conditions of employment.
Company counsel suggests, however, that these are
words of limitation; counsel would have this Board note
that they have been construed within several Supreme
Court cases, wherein managerial decisions which lie at
the core of entrepreneurial control, or which concern
the commitment of investment capital and the basic di-
rection of some business enterprise, have been found out-
side the scope of that enterprise's legal bargaining obliga-
tion-this, even though such decisions might have a pro-
found and lasting effect upon employee wages, hours,
and working conditions. Fibreboard Corp. v. NLRB, 379
U.S. 203, 220-223 (1964). See First National Corp. Y.
NLRB, 452 U.S. 666, 676 (1981). And Respondent con-
tends that Mack Western's closure, coupled with man-
agement's determination to transfer that facility's produc-
tive operations and consolidate them with Macungie's
production, derived from such a privileged managerial
decision.
In First National Corp., the Supreme Court held that
concerned employers, despite Section 8(a)(5) and Section
8(d) of the statute, have no duty to negotiate with repre-
sentatives of their employees regarding "economically
motivated" decisions to close parts of their respective
businesses. More particularly, the Court's opinion, when
defining its focus of concern, described the management
decision presented for its consideration thusly:
This decision, involving a change in the scope and
direction of the enterprise, is alkin to the decision
whether to be in business at all . . . . [452 U.S. at
688.]
. .. The decision to halt work at this specific loca-
tion represented a significant change in petitioner's
operations, a change not unlike opening a new line
of business or going out of business entirely. [452
U.S. at 688.]
However, the Court left open questions regarding a con-
cerned employer's duty to bargain regarding "other
types of management decisions" such as plant sales, relo-
cations, automation, subcontracting, and changes in
methods of doing business. Id. at fn. 22. The propriety of
managerial decisions, unilaterally made, with respect to
such matters the Court noted must be considered on
their particular facts.
Clearly, this case (when reviewed with due regard for
the distinction, noted, between partial closures and other
management decisions) presents a threshold question.
Did Respondent's determination to shut down Mack
Western and to transfer productive operations to Macun-
gie, for three truck models, constitute a partial closure,
comparable with First National Corp. service suspension
decision, which the Supreme Court considered? If so, the
Court's determination (that a partial closure decision,
itself, constitutes no part of Section 8(d)'s "terms and
conditions" with respect to which Congress has mandat-
ed bargaining) would, presumably, be dispositive. Should
a determination be considered warranted, however, that
Mack Western's closure, and Respondent's consequent
work transfer decision, did not constitute a truly "signifi-
cant change" concerning the scope and direction of Re-
spondent's business, comparable with a decision to go
out of business completely, further questions will, neces-
sarily, be presented.
In First National Corp., the Court rioted that Congress,
when it defined the issues which mast be submitted to
bargaining processes, limited them generally to issues
which settle some aspect of the employer-employee rela-
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tionship . Thus, when required to determine whether a
particular type of management decision , which:
had a direct impact on employment, since jobs
Were inexorably eliminated . . . but had as its focus
only the economic profitability [of the enterprise], a
concern . . . wholly apart from the employment re-
lationship. [452 U.S. at 677.]
should be considered part of the concerned employer's
retained freedom to manage its nonemployment-related
affairs, the Court set forth a test, pursuant to which such
a determination might be made. Generally, that test de-
fined the relevant criteria, pursuant to which matters of
common employer-employee concern might properly be
"labeled" mandatory subjects for collective bargaining.
In context, the Court declared that:
The concept of mandatory bargaining is premised
on the belief that collective discussions backed by
the parties' economic weapons will result in deci-
sions that are better for both management and labor
and for society as a whole . ... This will be true,
however, only if the subject proposed for discussion is
amenable to resolution through the bargaining process.
Management must be free from the constraints of
the bargaining process to the extent essential for the
running of a profitable business. It also must have
some degree of certainty beforehand as to when it
may proceed to reach decisions without fear of later
evaluations labeling its conduct an unfair labor
practice . . . . [In] view of an employer's need for un-
encumbered decisionmaking bargaining over manage-
ment decisions having a substantial impact on the con-
tinued availability of employment should be required
only if the benefit, for labor-management relations and
the collective-bargaining process, outweighs the burden
placed on the conduct of the business. [Emphasis
added.] [452 U.S. at 678-679.]
The Supreme Court, then, applied this "balancing test"
when considering a concerned employer's decision, eco-
nomically motivated, to shut down part of its business; it
concluded that there was no duty to bargain about that
decision.
Clearly, however, the Court's decision suggests com-
pellingly that its formulated test should be deemed appli-
cable, not merely with respect to management decisions
concerning partial closures' motivated by business consid-
erations, but likewise with respect to plant relocations,
consolidations of production which involve some plant's clo-
sure, and similar managerial determinations.
The Supreme Court, having considered and weighed
various factors which within its view persuasively sug-
gested management's need to operate freely "in deciding
whether to shut down part of its business" purely for
business reasons, concluded that decisions regarding par-
' tial closures, which normally involve cessations of pro-
duction concerned with a particular product, determina-
tions to cease furnishing a particular service, or suspen-
sions of service at some particular location, should not be
considered mandatory subjects. With respect to reloca-
tions, consolidations, or work transfers pursuant to
which concerned employers propose no cessation of pro-
duction, but, rather, determine to produce particular
products somewhere else the Court's opinion suggests,
merely, that its formulated balancing test should be ap-
plied with due regard for each situation's particular facts.
In this case, both the General Counsel's representative
and Respondent's counsel have, seemingly, considered
the Supreme Court's balancing test applicable; they
differ, merely, regarding the significance of those "par-
ticular facts," revealed by the record with respect to
which the Court's test should be applied.
b. Discussion
(1) The statutory issue
Essentially, the General Counsel seeks a determination,
on this record, that Respondent's decision to shut down
its Hayward, California plant, while continuing to
produce Mack Western's previously designated "product
line" within its Macungie facility, did not involve a
simple "partial going out of business" with respect to
which First National Corp.'s result should be considered
dispositive. Within his brief, the General Counsel's repre-
sentative , suggests, rather, that Respondent's decision
though concededly bottomed on Mack Western's closure
dealt, basically, with a restructuring or relocation of cer-
tain Mack Truck manufacturing operations, and their
consolidation or "integration" with Macungie's produc-
tion line processes. Thus, the General Counsel contends
that a result different from that which First National
Corp. reached should be considered warranted herein. In
that connection, the General Counsel's representative
notes within his brief that none of the significant factors
which persuaded the Supreme Court to find First Nation-
al Corp.'s partial closure decision privileged mark the sit-
uation which Respondent's management, herein, con-
fronted.
Nothing within the present record would warrant a
determination that Respondent's situation generated some
"great need" for speed, flexibility, and secrecy in meet-
ing business opportunities or dealing with business ex-
igencies. No showing has been made that Respondent
faced significant "tax or securities" consequences which
hinged on confidentiality, the timing of Mack Western's
closure, or some reorganization of Mack Trucks' corpo-
rate structure. Similarly, no persuasive showing has been
made, save for testimony regarding some generalized
declarations of managerial concern, that "publicity inci-
dent to the normal process of bargaining" could have in-
jured the possibility of success, with respect to Respond-
ent's proposed plant consolidation and work transfer, or
that such publicity could have generated economic
damage likely to affect Respondent's business. Respond-
ent proffers no claim, on this record, that some terminat-
ed, or significantly deteriorating, business relationship
with a particular third party precipitated its plant clo-
sure, consolidation, and work transfer decision; nor had
Mack Western's Hayward plant property been con-
demned by some local governmental body, for public
use.
MACK TRUCKS 757
With matters in this posture, the General Counsel sug-
gests that, while Respondent's decision may, concededly,
have been made for business reasons such a finding,
without more, should not be considered determinative.
With regard to Respondent's presently proffered claim
that its management should, herein, be considered
exempt from a decision -bargaining duty , counsel suggests
that concerned employers like Respondent should,
rather, be held duty-bound to bargain, save when con-
fronted with some "urgent, compelling and precarious"
financial situation, sufficiently serious to warrant a deter-
mination that bargaining would not merely have been
futile, but conceivably could have engendered greater
losses.
Proceeding from this premise, the General Counsel
contends upon this record that Respondent's testimonial
and documentary proffers hardly depict a firm teetering
on the brink of financial disaster. The General Counsel's
representative suggests, rather, that:
The emphasis is not on survival, nor on cutting
losses. The emphasis is on improving profitability
and cash flow.
Thus, finally, the General Counsel suggests that when
applying the Supreme Court's First National balancing
test herein this Board should consider the scales of judg-
menit tilted toward the preservation and protection of
whatever "incremental benefits" might be gained, for
labor-management relations and the collective-bargaining
process, by confirming Complainant Union's statutorily
defined right to receive notice, demand consultation
privileges , and bargain regarding plant closure, consoli-
dation, and work transfer decisions, reached under cir-
cumstances comparable with those presented within this
record.
Essentially, Respondent's counsel within his brief like-
wise seeks a determination, herein, derived from some
reasoned application of First National's defined balancing
test. Counsel would, however, have this Board consider
the situation presented from significantly different per-
spectives. Respondent's spokesman suggests that Mack
Trucks' decision-which, concededly, had a direct and
profound impact with respect to Mack Western's work-
ers-was a decision, nonetheless, which focused on con-
siderations wholly separate and apart from employment
relationships or labor costs; that it derived from manage-
rial judgments concerned with significant changes in the
scope and direction of the firm's enterprise ; and that sub-
stantial withdrawals or reallocations of capital were in-
volved. Relying on these considerations, Respondent
contends that the situation which prompted Mack West-
ern's closure, coupled with a projected transfer of Hay-
ward's truck production to Mack Trucks' Macungie fa-
cility, could not-reasonably-have been considered
amenable to resolution through collective-bargaining
processes.
Certainly, the business situation which Respondent's
management confronted cannot reasonably be equated
with First National's simple "termination of service"
problem. Nor would a determination be warranted
within my view that Respondent's situation was truly ex-
igent, sufficently to preclude management 's studied con-
sideration of some "feasible alternative" calculated to
forestall Mack Western's closure. These factual conclu-
sions, however, neither compel nor warrant a result dia-
metrically different from that which the Supreme Court
reached.
With due regard for Respondent's defensive` record
presentation-proffered, in the main., without challenge
or contradiction-regarding the general business situa-
tion which the firm 's management faced , I find its plant
closure, consolidation and work transfer decision privi-
leged. Respondent's failure to notify and confer with
Complainant Union regarding that decision-either
before it was reached, or, thereafter, before its implemen-
tation-flouted no statutorily defined bargaining duty.
Respondent 's management, so the record shows, had
developed a 5-year, 1980-1984 corporate plan bottomed
on projections of continued business growth. Consistent-
ly therewith, Respondent's management had initiated
several projects calculated to expand the firm's produc-
tive capacity. Some projects had involved substantial
capital allocations calculated, particularly, to promote
Mack Western's productive capacity.
Within the period with which this case is directly con-
cerned, however, the nation's economy generally was
suffering a significant decline . Domestic market demand
for heavy-duty trucks, Respondent's included, was like-
wise declining . In consequence , Mack Trucks' manage-
ment found itself constrained to review corporate oper-
ations and to consider possible changes responsive to a
foreseeably reduced demand for Respondent's product
lines.
Within his brief, Mack Trucks' counsel suggests that a
purportedly sharp and sudden sales drop of significantly
"unprecedented " proportions had rendered Respondent's
very "survival " questionable. Arguably, such a capsul-
ized characterization of the firm 's financial situation
might , reasonably , be considered somewhat exaggerated.
There can be no doubt, however, that varying the meta-
phor the firm recognized a gathering storm, and pro-
ceeded to consider whatever steps might be taken `to
"batten down the hatches" pending a business revival.
Since the firm could no longer, realistically, consider
the early years of the '80's decade a period of continued
growth , Mack Trucks ' management found some re-
trenchment not merely advisable, but required. Within
his June 25, 1980 memorandum directed to President
Pelletier, Executive Vice President Coffelt called Re-
spondent 's projected "negative [profit] swing" a perma-
nent loss, likely to impair their firm's growth. He sug-
gested that , with business prospects uncertain and Re-
spondent's current financial position strained , corporate
planning should be based on some "worst case" scenario,
and that a genuinely "fundamental change in the way
Mack does business" should be considered. Respondent
had so Coffelt reported recently commenced a retrench-
ment program by "contracting employment, cutting back
on capital expenditures, deferring product development"
and pursuing various cost reduction projects.
Having proffered numerous suggestions, calculated to
deal with Respondent's presumptively "critical" situa-
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, Coffelt reported his belief that Respondent was
"over-invested" with respect to capital assets; he noted
that Mack Western had, already, been designated a can-
didate for divestment; and that Respondent would be re-
quired to decide whether its corporate objectives could
be realized by utilizing its Macungie plant "more effec-
tively" while closing the firm's Hayward facility. -
Ultimately, so the record shows, Respondent's man-
agement decided that Macungie would be retained; that
Mack Western would be closed; and that various truck
models, previously produced in Hayward, California,
would thereafter be produced within Macungie's modi-
fied facility. Respondent's testimonial and documentary
proffers herein which have not been significantly chal-
lenged within the present record warrant determinations,
which I make, that Respondent's decision was bottomed
upon several non-labor-related considerations. These in-
cluded: First, Mack Western's failure to generate a grow-
ing "market share" for heavy-duty trucks within a West-
ern States market; second, heavy freight costs, since most
of Mack Western's required engines, transmissions, and
chassis parts were being shipped from East Coast plants
while more than 70 percent of Hayward's trucks were
being sold within Middle Western and Eastern markets;
third, Macungie's manifest status as Respondent's newer,
more modern, and more efficient facility, with a signifi-
cantly greater and currently underutilized productive ca-
pacity. And, concededly, further savings derivable from
Mack Western's closure-through reduced plant "over-
head" charges; lower material and equipment costs; re-
duced expenditures for accounting services, engineering
services, and computer systems rendered redundant by
Hayward's shutdown; and lower payroll costs for mana-
gerial and supervisory personnel rendered dispensable-
were, likewise, considered. Some possible savings, within
these designated areas, would, presumably, derive from
reduced "indirect labor" costs. Nothing within the
present record, however, suggests that reductions in such
labor costs were being considered for contractually cov-
ered production workers, whom Complainant Union rep-
resented. With -matters in this posture, Respondent's
managerial decision makers had clearly concluded that
their firm faced a business situation compassing certain
"economic necessities" sufficiently compelling to render
questionable, within their view, whatever "inclemental
benefits" collective bargaining might, conceivably,
produce.
Respondent's management had presumably concluded
that labor cost and product quality considerations-with
respect to which Union concessions or suggestions
might, conceivably, have proven helpful, thereby fores-
tallingHayward's projected job losses-were not, really,
crucial factors warranting study, or carrying determina-
tive weight, with respect to their prospective plant clo-
sure decision. Rather, those business related problems
previously noted herein-which had, so the record
shows, prompted Respondent's decision-were, clearly,
considered beyond resolution through collective-bargain-
ing processes. With due regard, then, for "particular
facts" revealed within the present record, I find Re-
spondent's determination to proceed unilaterally without
notice to, or consultation with, Complainant Union re-
garding Mack Western's closure, privileged.
In First National Corp., the Supreme Court noted that,
"The concept of mandatory bargaining is premised on
the belief that collective discussions backed by the par-
ties' economic weapons will result in decisions that are
better for both management and labor, and for society as
a whole." Clearly, however, collective discussions re-
garding business-related matters-with respect to which,
presumably, Union concessions, informational proffers,
and suggestions relative to conceivable alternative
courses would, most likely, prove both futile and likely
to prolong a concerned employer's losses-cannot rea-
sonably be considered statutorily mandated. This was the
situation, I find, which Respondent's management con-
fronted.
When they considered Mack Western's future, unilat-
erally, and reached their closure decision, Respondent's
management representatives had, necessarily, determined
beforehand consciously or subconsciously that their firm
faced a situation which involved nonlabor related "eco-
nomic necessities" sufficiently compelling to obviate
their conceivable bargaining duty. Arguably, Respondent
may have been proceeding "at its peril" when the firm's
management concluded, explicitly or tacitly, that prior
notice, consultation, and negotiations, with either Com-
plainant Union or that representative's International
parent, would not be required. With due regard, howev-
er, for this case's previously delineated particular facts,
Respondent's determination, within my view, cannot be
legally faulted.
Within his brief, the General Counsel's representative
notes cogently that Respondent's preliminary "Mack
Western" study had not been prepared hastily; that vari-
ous "informed and interested" corporate personnel had
been consulted; and that the study's conclusion and con-
sequences had neither been predicted nor definitively de-
termined, beforehand. The General Counsel's representa-
tive notes, further, that significant steps calculated to im-
plement Respondent's October 31, 1980 plant closure and
work transfer decision were not taken for several
months. Within this situational context so counsel con-
tends consultations with union representatives would not
have been predictably futile, would not have "interfered
with" basic managerial decisions, and could conceivably
have produced some constructive, meaningful contribu-
tions.
Despite this suggestion's appeal, dispassionate analy-
sis-conducted with due regard for Mack Trucks' con-
cededly deteriorated and progressively worsening busi-
ness situation-requires its rejection as unrealistic. In
First National Corp. v. NLRB (452 U.S. 666 (1981)), the
Supreme Court, confronted with a distinguishable but
nevertheless comparable closure situation, commented
that:
The union's practical purpose in participating . . .
[regarding the decision to close a particular facility]
. . . will be largely uniform: It will seek to delay or
halt the closing. No doubt it will be impelled, in
seeking these ends, to proffer concessions, informa-
tion, and alternatives that might be helpful to man-
MACK TRUCKS
agement or forestall or prevent the termination of
jobs.
The Court concluded, however, that requiring "deci-
sion" bargaining-particularly with regard to partial
plant closures or suspensions of service prompted primar-
ily by business considerations-would be unlikely to gen-
erate suggestions or contributions calculated to solve
nonlabor related problems. With due regard for Re-
spondent's particular situation, revealed within the
present record, I find a comparable determination com-
pelled herein.
Arguably, some prior notification directed to Com-
plainant Union's representatives, followed by consulta-
tions regarding a possible plant closure decision, would
most likely have produced no measurable harm. On this
record, however, no determination could be considered
warranted within my view that such consultations would
have, conversely, produced positive results consistent
with Complainant Union's proclaimed goal.
Of course, Respondent's notification to Complainant
Union that Mack Western's closure was being consid-
ered, followed by consultations concerned therewith,
might, conceivably, have produced some "intangible"
benefits worthy of consideration. In Mack Trucks v,
NLRB, 582 F.2d 720, 737 fn. 92 (3d Cir. 1978), the court
noted that:
[T]he value of collective bargaining cannot be
measured solely in terms of the possibility of an al-
teration in the employer's decision to close the facil-
ity. Merely by sitting down together to consider the
matter, the employer and employees may achieve
important aims, including the enhancement of the
sense that problems confronting one of them also in-
timately concerned the other. Even if no immediate
results flowing from such an awareness of their
community of interests become evident, the value of
fostering that attitude between the parties should
not be underestimated.
Mindful of this, Respondent's management might, argu-
ably, have been well advised to consult, early on, with
Complainant Union's local leadership or, most probably,
with UAW's International representatives regarding the
business situation which was prompting the firm's con-
sideration of Mack Western's possible closure. What
Mack Trucks' management could have done, however,
cannot legitimately be considered something the firm
was statutorily required to do. The General Counsel's
contrary contention, on this record, carries no persua-
sion.
Since this section of my decision was drafted, this
Board has reconsidered and redetermined-in light of the
Supreme Court's First National Corp. opinion-a prior
(1983) decision which presented substantially comparable
questions. In Otis Elevator Co., 269 NLRB 891 (1984), the
Board concluded that Respondent therein could "decide
to discontinue" certain research and development activi-
ties, conducted at one company location, and to consoli-
date them with operations conducted at another location,
unrestrained by Section 8(a)(5) and Section 8(d) of the
statute. On the record therein, the Board found specifi-
759
cally that Otis Elevator's decision had turned, not upon
programmed reductions in labor costs, or related factors
with respect to which the Union concerned could have
lent assistance, or proffered concessions, which reason-
ably could have affected the firm's decision, but, rather,
on a fundamental change in the nature and direction of a
significant facet of its business. Thus, it constituted a
managerial decision, typical of those which should prop-
erly be considered at the core of entrepreneurial control,
and therefore outside 8(d)'s limited scope. Ibid. Putting
the matter otherwise, the Otis Elevator's decision, so the
Board found, turned on considerations which could not,
reasonably, be deemed amenable to resolution through
collective-bargaining processes.
Having reached this conclusion with respect to Otis
Elevator's lsituation, the Board held further that, consist-
ently with the Supreme Court's First National Corp. ra-
tionale, decisions to "restructure" or "consolidate" oper-
ations, generally, should be deemed excluded from 8(d)'s
coverage, save when those decisions have, demonstrably,
turned on considerations involving some direct modifica-
tion of labor costs.
In this case, as previously noted, possible reductions in
direct labor costs (though presumably taken into consid-
eration by Respondent' s management) were not deemed
a significant or motivating factor affecting Respondent's
decision to close its Hayward operation, to restructure its
productive facilities, and to consolidate production, with
respect to Mack Western's product lines, within its Ma-
cungie, Pennsylvania, plant. And, since those decisions
therefore cannot reasonably be considered based on fac-
tors with respect to which Complainant Union could
have provided meaningful assistance, or with respect to
which it could have proffered concessions likely to make
a difference, collective bargaining with respect thereto
cannot, properly, be considered required
(2) The waiver issue
Should a formal conclusion be considered warranted,
nevertheless, that Respondent's decision with respect to
Mack Western's closure and consequent work transfer
really concerned "terms and conditions of employment"
regarding which Congress had mandated bargaining, a
determination would, within my view, nevertheless be
required -on this record that Complainant Union's stat-
utory right to compel collective bargaining with respect
thereto should, for present purposes, be considered
waived.
Of course, no contractual waiver clearly and un-
equivocally manifested within the parties' successive
Master Shop Agreements can, herein, be found. And Re-
spondent's counsel, within his brief, proffers no such
contention.
This Board has held, consistently, that contractual
"management rights" clauses couched in general terms
provide no "clear and unmistakable" manifestation that
statutorily guaranteed bargaining rights, with respect to
particular subjects, have been relinquished.
The Board has, however, recognized that clear and
unmistakable waivers may be manifested by statements
made and conduct manifested during collective-bargain-
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing negotiations. See Timken Roller Bearing Co. v.
NLRB, 325 F.2d 746, 751 (6th Cir. 1963); Univis, Inc.,
169 NLRB 37, 39 (1968); Globe-Union, Inc., 233 NLRB
1458 (1977). Compare ACF Industries, 247 NLRB 1056
(1980), in this connection. Bargaining histories, in short,
may persuasively support waiver claims. Compare Hearst
Corp., 113 NLRB 1067, 1071-1072 (1955). The Board's
decisions, rendered with judicial concurrence, further
make it clear, however, that waivers of statutory right,
purportedly manifested at some bargaining table, will not
be lightly inferred. Timken Roller Bearing Co., 138
NLRB 15 (1962), enfd. 325 F.2d 746 (6th Cir. 1963).
Thus, when particular subjects have been discussed
during contract negotiations, proof standing alone that
the contracting parties may not have, subsequently, dealt
with the matter specifically within their resultant docu-
ment, will not be considered a clear waiver manifesta-
tion. Perkins Machine Co., 141 NLRB 98, 102 (1963).
Accord: Magma Copper Co., 208 NLRB 329 (1984);
Globe-Union. In Perkins Machine Co., the Board declared
that:
When the parties consciously explore the matter
during negotiations and the contract fails to touch
upon it, something more is required before the
union will be held to have bargained away its
rights, namely, a conscious relinquishment by the
union, clearly intended and expressed. [Emphasis
added.]
Within the present record, Respondent's documentary
and testimonial proffers, concerned with the parties' 1958
master contract negotiations, provide no persuasive
showing that UAW's negotiators, then, claimed "bargain-
ing rights" with respect to Respondent's prospective
plant closure or work transfer decisions.
In his brief, Respondent's counsel presently claims,
contrariwise, that UAW's representatives "openly ac-
knowledged" the firm's right to make unilateral decisions
concerning such matters. However, counsel 's claim
within my view lacks persuasive record support.
When Respondent's and UAW's negotiators met for
their Master Shop Agreement's 1961 renewal, however,
the subject of plant closure and work transfers were ex-
tensively negotiated. Discussions with respect to both
subjects had, presumably, been prompted by Respond-
ent's projected Plainfield, New Jersey plant closure, pur-
suant to which Plainfield's work would be transferred to
a new Hagerstown, Maryland facility. Mindful of Re-
spondent's project, UAW's negotiators demanded initial-
ly that Respondent relinquish its never previously chal-
lenged right to close plants and transfer work; the
Union's negotiators proposed that future closures should
be conditioned on "mutual agreement" by the parties.
When Mack Trucks' representatives rejected this
demand, however, UAW's negotiators clearly dropped
their proposal. In this connection, Richard Peterson, Re-
spondent's industrial relations director, testified, credibly,
that:
[Union Representative] Kampf said that he wanted
union input into any decision to move; that if any
plant were moved or relocated other than the Plain-
field unit, which was already in progress, that the
union wanted input to it . . . .
Well, it's difficult to recall the [Company spokes-
man's] exact comments. The only thing I can recall
is the Company spokesman was probably Mr. Liv-
ingston , and the Company was not prepared to
agree to that kind of a mutual agreement arrange-
ment .. . .
[Union Representative] Gerber stated that we're not
trying tonegotiate your decision to move to Hagerstown.
What we are trying to negotiate [is] what happens
to the people when you transfer . .. .
Mr. Sensinger was the Chairman of the Mack
Truck Council Negotiating Committee. He made
the statement that if you want to move, you have a
right to, but you are obligated to take the people
with you . . . . [This comment was made] well into
the negotiations. I don't remember when. Well
along. [Emphasis added. Interpolations provided to
promote clarity.]
Admittedly, Peterson's testimony (proffered 20 years
subsequent to his participation in the contract negotia-
tions now in question) derives from refreshed recollec-
tion, following his references to contemporaneously re-
corded bargaining notes. While a witness, however, Pe-
terson testified straightforwardly, candidly, and largely
without being required to confront significant challenges
or contradiction. Within my view, his testimonial recit-
als, recapitulated herein, merit credence.
On this record, there can be no doubt that Respond-
ent's and UAW's representatives had during their 1961
negotiations consciously explored the subject of Mack
Trucks' right to close currently maintained facilities, and
to transfer bargaining unit work between plants. Further,
there can be no doubt that UAW's negotiators had "con-
sciously relinquished" whatever rights they might, con-
ceivably, have claimed, with regard to requiring prior
notification and consultation privileges, when confronted
with such prospective managerial decisions.
Since their Master Shop Agreement's renewal, follow-
ing comprehensive 1961 negotiations previously consid-
ered herein, UAW's spokesmen have not so far as the
record shows renewed their demand for so-called deci-
sion bargaining rights. Several "operational" transfers
have been made, within the past 20 years, seemingly
without union consultation. With respect to one such
transfer, International Representative Schuetz testified as
follows:
I was involved in a transfer of a portion of work
that left the New Jersey Master Parts Depot at
Bridgewater, New Jersey, and was transferred to a
new location at Severn, Maryland. That occurred
probably in about '78, '79, somewhere in there
.. .. The Company was moving some of the oper-
ations out of that Master Parts Depot to a new lo-
cation in Severn, Maryland. They indicated that,
when they moved to Severn, Maryland, as is their
MACK TRUCKS
right under the Agreement, they may take that work
and change the classifications . . .. We negotiated
the timing of the transfer, the opportunities for em-
ployees to make a decision whether to go or not go,
and the method in which they were going to be se-
lected . [Emphasis added.]
On this record, UAW's consistent practice clearly re-
flects a pattern; union representatives have neither solic-
ited, nor demanded, prior notification or consultative
rights, with respect to Respondent's plant closures, con-
solidations , or work transfers . Such restraint, I find,
clearly reflects UAW International' s present recognition
that bargaining rights which it might, conceivably, have
claimed pursuant to statute with respect to management's
plant closure and transfer decisions, have, heretofore,
been renounced.
Complainant Union's counsel, within his brief, suggests
however that Local 76 should not, currently, be consid-
ered bound by UAW International's waiver, previously
manifested at the bargaining table since that organiza-
tion's conscious relinquishment of putative bargaining
rights had been manifested before Respondent com-
menced operation, within its Hayward, California facili-
ty, and before Complainant Union's status as collective-
bargaining representative for Mack Western's workers
had been recognized. Counsel's suggestion, however,
should carry no persuasion. Since Complainant Union's
designation as the formal collective-bargaining represent-
ative for Mack Western's production workers, UAW
International has represented the Local throughout nego-
tiations, conducted with Respondent's delegated corpo-
rate level spokesmen, concerned with successive master
contracts . Concededly, Complainant Union has through-
out functioned as a constituent UAW subordinate body,
bound by its parent organization 's constitution , bylaws,
and relevant contractual commitments . As such, Com-
plainant Union cannot within my view reasonably con-
tend, now, that consensual commitments negotiated by
its parent body, prior to its formation, should not restrict
its freedom to pursue divergent objectives. In this con-
nection, Respondent's counsel suggests within his brief
that Local 76's situation may reasonably be considered
comparable with the situation of those concerned em-
ployers who, belatedly, become privy to multiple-em-
ployer bargaining agreements previously negotiated,
without becoming cognizant concurrently, regarding
their newly confirmed contract's collective-bargaining
history, or side agreements previously reached with re-
spect thereto. Counsel's suggestion, within my view, car-
ries persuasion. Should concerned employers so situated
seek "escape" from their newly designated bargaining
representative 's previously negotiated consensual- com-
mitments or side agreements claiming "ignorance" with
respect thereto this Board could hardly be considered
disposed to grant them requested absolution. Complain-
ant Union should likewise be denied such privileged
status.
c. Conclusion
Concededly, decisions with respect to plant closure,
comparable with the decision dealt with in this case,
761
"touch on matters of central and pressing concern to
unions and their member-employees. In First National
Corp., however, the Supreme Court held that ,negotia-
tions with regard to management decisions which might,
conceivably, have some substantial impact on the contin-
ued availability of employment, should be considered re-
quired "only if the benefit, for labor management rela-
tions and the collective-bargaining process" outweighs
the burden which such bargaining might place on the
conduct of some concerned employer's business. On the
present record, there can be no doubt that Respondent's
decision, with respect to Mack Western's closure, seri-
ously concerned the firm's Hayward, California produc-
tion workers. Nevertheless, with matters in their present
posture, there can-likewise-be no doubt that com-
pelled negotiations with regard to Respondent's plant
closure and work transfer decisions would have provided
little more than some "intangible" benefit, calculated
generally to promote cooperative labor management re-
lations, and thereby facilitate future collective-bargaining
processes. Such less-than-tangible benefits, however,
could hardly "outweigh" the burden which the General
Counsel's proposed remedies, herein, would place on the
conduct of Respondent's business. On balance, therefore,
Respondent's closure decision, with which we have been
concerned, cannot reasonably be considered compassed
within Section 8(d)'s defined "terms and conditions"
with respect to which collective bargaining , on request,
should be deemed statutorily mandated.
Should a determination consistent. with the General
Counsel's position herein regarding Respondent's statuto-
rily defined "decision" bargaining obligation be consid-
ered well-founded, however, I would, nevertheless, find
such a determination realistically precluded by UAW In-
ternational's previously manifested "conscious relinquish-
ment" with respect to such statutorily designated collec-
tive-bargaining rights.
3. Discussions regarding the consequences of
Respondent's closure decision
a. The question defined
The General Counsel's representative , within his
amended complaint, charges that since January 19, 1981,
specifically Respondent has "failed and refused to bar-
gain" with Complainant Union regarding various "ef-
fects" consequent on the firm's decision to close Mack
Western, coupled with its decision to transfer and con-
solidate work , then being performed within Respondent's
Hayward plant, to its Pennsylvania facilities.
In response , Mack Trucks concedes that whenever a
plant closure , consolidation , and work transfer decision,
like the one with which we have been concerned, has
been made unionized employers normally owe a legal
duty to bargain regarding that decision 's various effects.
Respondent 's counsel would have this Board note, how-
ever, that no duty may be owed in situations where a
concerned labor organization 's right to demand such bar-
gaining may have been waived , or situations wherein a
concerned employer relies on some differentiated affirm-
ative defense . In this case , Respondent relies on several
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"waiver" defenses ; contends , likewise, that its duty to
bargain consistently with relevant Master Shop Agree-
ment provisions should be considered owed , not to Local
76, but to UAW International and the Mack Truck
Council, Complainant Union's contractually designated
bargaining representatives ; and suggests further that Re-
spondent 's management representatives have, actually,
satisfied the firm 's obligation to bargain regarding their
decision 's consequences.
Confronted with these contentions , the General Coun-
sel's representative argues within his brief that Respond-
ent's management spokesmen "refused to discuss" bar-
gaining proposals which their Master Shop Agreement's
appendix D did not specifically cover; that they "stood
fast" with respect to matters which appendix D's provi-
sions purportedly did cover ; and that Respondent 's reli-
ance on appendix D's provisions , while refusing to bar-
gain further, with regard to closure/transfer matters,
whether dealt with, or not dealt with , therein, should not
be considered legally privileged . The General Counsel
contends that Complainant Union's statutorily grounded
right to demand "effects" bargaining had never , thereto-
fore, been "clearly and unmistakeably" waived . Further,
the General Counsel's representative notes that Respond-
ent's management had previously negotiated modifica-
tions, with respect to several Master Shop Agreement
provisions , without the participation of contractually
designated bargaining representatives ; that Mack Trucks'
spokesmen had, further , negotiated relevant contractual
modifications during the various bargaining sessions with
which we have , herein, been concerned ; and that such
partial bargaining "raises serious questions concerning
the consistency , sincerity , and legality of Respondent's
reliance" on appendix D's purported immutability.
With matters in this posture, the General Counsel con-
tends, finally , that Respondent 's course of conduct
should be considered a refusal to bargain, statutorily pro-
scribed , since within his view it derived from a presump-
tive "strategy" calculated to preclude Complainant
Union from any opportunity to question Respondent's
course of conduct, and/or further opportunities to pro-
cure more favorable transfer privileges or layoff benefits
for Mack Western 's workers.
b. Discussion
(1) Complainant Union's purported laches
Before proceeding to consider various significant ques-
tions with respect to which conflicting positions have,
herein , been taken , we should note Respondent 's prelimi-
nary contention relative to Complainant Union 's purport-
ed laches. Within his brief, Respondent 's counsel notes
the General Counsel 's pleaded concession that Local 76
first requested opportunities to bargain regarding the ef-
fects of Mack Western's closure and work transfer on
January 19 , 1981; Respondent contends that since Com-
plainant Union had waited 80 days following the firm's
October 31, 1980 announcement , before presenting writ-
ten demands relative to prospective job transfers Local
76's spokesman had, thereby , waived their organization's
right to bargain with regard to such matters. Respond-
ent's suggestion , however, lacks record support . Within
my view , it merits rejection.
Concededly , Complainant Union's spokesman present-
ed various written "demands " calculated to deal with the
consequences of Respondent 's closure decision within a
January 14 letter, delivered to Mack Western 's industrial
relations manager 5 days later . The record , however, re-
veals clearly that Local 76's spokesman had, previously,
raised questions with regard to workers ' transfer rights,
severance benefits , and related matters, during their ini-
tial November 3, 1980 conference with Mack Western's
management representatives ; that Respondent's contrac-
tual commitments with respect to work transfer proce-
dures, benefits for transferred workers, and layoff bene-
fits had been mentioned , several times , during the No-
vember 1980 conferences between union representatives
and company spokesmen ; that various matters concerned
with appendix D's implementation had been discussed
during the parties' December 2-3, 1980 negotiations, and
that several written "Union demands" were presented
for management ' s consideration during a December 15
Hayward, California conference . With matters in this
posture, Respondent 's suggestion that Complainant
Union 's purported laches had somehow frustrated the
bargaining process , and precluded the prompt implemen-
tation of Respondent 's plant closure and work transfer
decision carries no persuasion.
(2) Prior contract negotiations
Within his brief, Respondent 's counsel contends, fur-
ther, that his client had bargained extensively with union
representatives during previous contract negotiations re-
garding the effects of corporate decisions dealing with
work transfers from one company facility to another.
Counsel suggests that such "anticipatory" negotiations
had completely satisfied , or significantly confined, Re-
spondent 's purported obligation to participate in further
bargaining concurrently with the Hayward facility's clo-
sure, and consequent work transfer.
On this record , Respondent 's contention , within my
view, merits serious consideration . When concerned par-
ties have negotiated contract provisions purporting to
deal with particular contingencies or future possibilities,
they have normally obviated any need, or foreclosed the
imposition of any duty, to bargain further, with respect
thereto, should the foreseen contingency develop.
In some cases , this Board has with judicial concur-
rence found that concerned unions have thereby
"waived" their right to demand further bargaining
during a contract 's term; their consensual commitments
with respect to particular provisions have been found to
constitute a relinquishment of their presumptive right to
require further bargaining , with regard to the particular
subject matter involved, prior to their contract 's termina-
tion date . Other Board decisions which reflect no refer-
ence to waiver concepts recognize , nevertheless, that,
when concerned parties have reached a contractual con-
sensus with regard to some particular subject matter, they
should be considered absolved from any need to bargain
midterm, with respect thereto . In this connection, fur-
ther, Section 8 (d) of the statute may, likewise, prove rel-
MACK TRUCKS 763
evant. That section lays down a specific requirement:
When a collective-bargaining contract is in effect, and
some contracting party seeks to modify , midterm, par-
ticular terms and conditions set forth therein ; the party
seeking modification must procure the other contracting
party's consent before proposed changes may be imple-
mented.
In this case , clearly, Respondent's representatives and
UAW's spokesmen have, for many years, negotiated
master contracts with supplemental agreements which
have provided a presumptively comprehensive system of
benefits, employee rights, reciprocal obligations , and pro-
cedures considered applicable whenever work transfers,
from one company facility to another, have been effectu-
ated. This contractual scheme, on its face, purports to
cover the full range of conceivable "effects" and "conse-
quences" which might concern employees affected by
work transfers.
Concededly, however, successive Master Shop Agree-
ments and contractual supplements have, nevertheless,
left various "details" for midterm negotiation , while par-
ticular plant consolidations and work transfers may be
occurring, or may be contemplated. As previously noted,
section 2 of appendix D provides specifically that com-
pany and union representatives "will meet promptly"
pending projected work transfers, to determine the work-
ers likely to be affected thereby, and the mechanics of
their transfer. The contract supplement provides, further,
that "details as to the application of the principles set
forth" therein, with respect to any particular transfer,
shall be discussed between company representatives and
designated spokesmen for the UAW International and
the Locals directly affected. In this connection, Re-
spondent and Complainant Union's representatives have
by their course of conduct described extensively herein
tacitly conceded the negotiability of transfer procedures,
and comparable "details" requiring resolution, with re-
spect to Mack Western's closure.
With matters in this posture , determinations would
seem warranted, consistently with Respondent's conten-
tion, noted, that, save for required negotiations regarding
various details of particular operational transfers between
plants, Complainant Union has, through designated bar-
gaining representatives , waived its statutorily defined
right to demand negotiations , ad hoc , regarding certain
designated consequences of Respondent 's interplant
transfer decisions. Or, putting the matter differently,
Complainant Union has negotiated agreements, prospec-
tively, regarding certain specific terms which should
govern such transfers. These determinations, within my
view, may reasonably be derived from relevant contrac-
tual language, the parties' bargaining history, and their
past practice.
As Respondent 's counsel notes cogently within his
brief, the parties ' master contract , conjoined with its ap-
pendices, spells out and deals with most of the matters
which would normally be discussed in bargaining over
the effects of a plant consolidation and work transfer de-
cision. Appendix D provides a comprehensive procedure
whereby certain workers, deemed eligible on the basis of
their seniority and job qualifications, may be transferred
with full seniority rights to their work's new location,
may be placed in appropriate job classifications there,
and may be reimbursed for some, though presumably not
all, of their relocation expenses . Further, appendix C de-
fines a comprehensive system of benefits for workers laid
off, consequent upon their facility's closure.
These benefits may compass both supplemental unem-
ployment benefit payments and severance pay, for which
workers may qualify, based on their seniority.
In addition , appendix B provides that various employ-
ee insurance coverages-group life insurance , accidental
death and dismemberment coverage , survivor 's income
benefits, and health insurance compassing hospitalization,
surgical and medical expenses, prescription drugs, and
dental and vision care benefits-may be continued, with-
out cost to the worker concerned, for stated periods of
time, depending on his or her seniority , following a
layoff. Finally, appendix A provides a comprehensive
program of pension and retirement benefits. Workers laid
off following a plant closure could, clearly, qualify for
such benefits, contingent on their accrual of vested re-
tirement benefit rights.
In short, benefits within virtually all of the subject
matter areas normally covered during so -called "effects"
bargaining , in situations involving plant closures, consoli-
dations, and work transfers, have been granted before-
hand for Mack Western's workers. They stand secured
within the firm's Master Shop Agreement and relevant
supplements.
In this case , however, Respondent 's counsel seemingly
seeks a broadly framed determination: Namely, that the
parties' successive Master Shop Agreements, appendix
D's bargaining history, and the past practice of the par-
ties thereunder , clearly demonstrate their intention that
appendix D, together with other contractually negotiated
benefit provisions, should be considered their full agree-
ment regarding the mechanics , effects, or consequences
of interplant transfers . Stated, thus broadly, counsel's
contention, within my view,, carries no persuasion. This
Board should, rather, find a contrary conclusion warrant-
ed, for several reasons.
First: As previously noted, appendix D provides spe-
cifically that company and union representatives "will
meet promptly" pending any transfers of work between
plants, to discuss and determine "among other things"
those employees who may be qualified and eligible for
transfer , plus the mechanics of projected work transfers.
The contract further provides that details as to the appli-
cation of the principles set forth therein shall be the sub-
ject of discussion between the parties, with "mutual
agreement" defined as their desired goal These contrac-
tual provisions, which the parties have, concededly, con-
sidered applicable in connection with Mack Western's
closure, clearly leave numerous matters whose nature
and scope have not been, and presumably could not be,
specified beforehand potentially open for discussion and
collectively bargained resolution.
Second: While successive Master Shop Agreements
have provided with respect to appendix C particularly
that neither party may be required to bargain with regard
to changes in, deletions from, or additions to their sup-
plemental unemployment benefit plan (luring any particu-
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lar agreement's term, appendix D contains no compara-
ble "zipper" provision. Its omission can hardly have been
inadvertent. In short, Respondent and Complainant
Union's, representatives-having negotiated "clear and
unmistakable" reciprocal waivers of their right to bar-
gain , during their contract's term, over the limited issue
of supplemental unemployment benefits-saw fit to re-
frain, deliberately, from doing so with respect to further
questions which might be raised, consequent upon work
transfer decisions.
Third: Article 32, section 3, of the parties' Master
Shop Agreement defines the procedure whereby "modi-
fications" during its term may be negotiated and con-
firmed. While neither party, thereunder, may unilaterally
require midterm negotiations looking toward some modi-
fication, their contract clearly contemplates the possibility
that such negotiations might legitimately be sought, and
that contractual changes, or supplementation, pursuant to
mutual agreement, might result. Clearly, therefore, Re-
spondent's contention that appendix D, with its related
supplementary agreements-taken as they stand should
be considered a collective bargained "all-inclusive agree-
ment" dealing comprehensively and definitively with the
management and consequences of the Hayward/-
Macungie closure/transfer, and that Complainant Union
had, thereby relinquished or waived any right to request
further "effects" bargaining can hardly be considered
beyond question.
With matters in this posture, determinations might well
be considered warranted as previously noted that Com-
plainant Union, bound by the Master Shop Agreement
plus its supplements, had bargained away and/or waived
its right to request midterm negotiations with respect to
those particular "effects" and "consequences" generated
by Respondent's plant closure/work transfer decision
which might reasonably be pinpointed as specifically de-
tailed therein. However, there can be no doubt, as Re-
spondent's counsel, within his brief, finally concedes that
the contract negotiated by the parties does envision the
prospect of further bargaining, concerned "among other
things" with the mechanics of projected work transfers,
and various "details" related thereto. I so find.
Of course, -Respondent clearly considers the matters
left open for negotiation, pursuant to this contractual lan-
guage, quite limited. Its view, however, remains to be
tested. Whether Complainant Union's various demands,
previously noted herein, dealt with appendix D matters
which Respondent was privileged to deem foreclosed by
their previously negotiated contractual provisions, or
with matters left open for discussion thereunder, will be
considered further within this decision.
(3) Respondent's duty to bargain with UAW and
the Mack Truck Council
Respondent contends, further, that should a conclusion
be deemed warranted that company management was le-
gally obligated to engage in some "effects" bargaining
with respect to Mack Western's closure the firm's legal
duty, nevertheless, was not owed directly to Local 76,
functioning as that California facility's recognized local
union. Mack Trucks' duty, Respondent's representative
suggests, should be considered owed rather to Complain-
ant Union's International, and the top negotiating com-
mittee of the Mack Truck Council, functioning on behalf
of the various plant locals which their Master Shop
Agreement, then in force, covered. See article 32, section
2(a) and section 3, in this connection. According to Re-
spondent, this conclusion with respect to management's
duty derives, necessarily, from the parties' long-estab-
lished master contract-local supplement negotiating
scheme, the conceded master contract nature of so-called
interplant transfer questions, and the fact that some of
Complainant Union's several "demands" with respect
thereto might concern Local 677 members directly, while
others (should they be granted) might, conceivably, have
consequences which could, indirectly, affect Respondent's
workers represented by different UAW locals.
On this record, Respondent's contention, so far as that
contention may relate to demands dealing with specifi-
cally detailed appendix D provisions, would seem to
have merit.
Concededly, Respondent, Complainant Union' s Inter-
national, the Mack Truck Council, and its constituent
locals, have long dealt with interplant transfer questions
and related layoff benefit programs as master contract
issues; specific contractual provisions concerned with
such matters have been considered subject to change or
supplementation solely through master contract negotia-
tions. More particularly, 'the parties have provided as
previously noted that any midterm modifications of their
master contract, clearly including its supplements, would
have to be negotiated and signed by the Mack Truck
Council's top negotiating committee and International
representatives.
In this case, several of Complainant Union's proffered
demands so the record, which will be reviewed herein-
after, shows did call for specific deviations from appendix
D's provisions. Others called for modifications in Re-
spondent's projected work transfer arrangements which
potentially at least could have significantly affected the
contractually defined rights of Local 677's members,
whether currently working or temporarily on layoff
status.
And the record shows that Respondent's representa-
tives, mindful of these possibilities, did suggest several
times during their 7 months of discussion with UAW of-
ficials and Complainant Union's spokesmen that the
Mack Truck Council's participation, therein, might be re-
quired. Between November 1980 and March 1981, how-
ever, Local 76's leadership took no action looking
toward the Council's formal, contractually sanctioned in-
volvement. Prior to April 1981, indeed, no Local 677 or
Council representatives appear to have been formally re-
quested to join UAW's and Local 76's negotiators.
Complainant Union's counsel, within his brief, notes
that Local 76's representatives shortly after they present-
ed their January '19 demands did seek to invoke the
Mack Truck Council's participatory support for some res-
olution of their so-called close-out problems. In reply,
the Council, through President McCafferty, notified
Complainant Union's leadership, however, that their
International representatives rather than Council officers
or Eastern local union officials should bear "the entire
MACK TRUCKS 765
obligation and responsibility .. . to discuss and complete
the closeout arrangement" for Respondent's Hayward,
California facility. These reported intraunion communi-
cations, however, cannot properly be considered dis-
claimers sufficient without more to counter, effectively,
Respondent's contention that article 32 negotiations, con-
ducted by article 32's designated parties, should be con-
sidered required before specific appendix D provisions
could be modified. Nothing within the present record
would warrant a determination that McCafferty's state-
ment of the Mack Truck Council's position was contem-
poraneously communicated to Respondent's manage-
ment, or if it was that Respondent's management acqui-
esced. Further, McCafferty's communication considered
in context conveyed no disclaimer of Council concern
with respect to Local 76's several demands for appendix
D's revision, supplementation, or reinterpretation. The
Mack Truck Council's spokesman merely noted that
body's support for Complainant Union's demands con-
cerned with rights, privileges, and benefits claimed for
Mack Western's workers, consequent upon their Hay-
ward facility's closure, which could neither be consid-
ered specifically governed by appendix D's provisions,
nor calculated to modify them. In short, therefore, no
statements of position chargeable either to Respondent's
management or UAW's Mack Truck Council representa-
tives could, properly, be considered waivers of their con-
tractually confirmed right to demand article 32 negotia-
tions, with respect to proposed appendix D modifica-
tions, additions thereto, or new agreements "affecting"
that contractual supplement's provisions.
With matters in this posture, Respondent's contention
that-with respect to some of Complainant Union's
closure/transfer demands which would have required
plaster Shop Agreement changes-the firm owed no bar-
gaining duty to Local 76, even though that body may
have been assisted, counseled and supported by UAW's
International representatives.. merits Board concurrence,
within my view.
Nevertheless, Mack Trucks' broadly stated claim that,
consistently with the Master Shop Agreement's purpose
and purportedly manifest intent, all conceivable problems
related to the implementation of plant closure/work
transfer decisions should be considered subject to han-
dling solely on some "coordinated national basis" goes
too far. Specifically, with respect to Mack Western's clo-
sure, the record shows that many of Complainant
Union's demands were calculated to deal exclusively
with the direct impact of Respondent's projected pro-
gram on Hayward facility personnel. The degree to
which those demands might indirectly affect certain
rights, privileges, or contractually defined benefits en-
joyed by Respondent's Macungie employees, or those
working at Mack's other plants should they be granted
would, within my view, reasonably merit characteriza-
tion as nonexistent , or nominal merely With respect 10
such demands clearly Local 76's leaders were privileged
to bargain directly, with help from their International
Union's representatives. Complainant Union's spokesmen,
repeatedly, declared their desire to negotiate a so-called
"'closing" agreement, rather than reopen the parties'
master contract. International Representative Schuetz,
when summarizing the position which Vice President
Yokich propounded in this connection, phrased. Com-
plainant Union's position best:
He said that there are many of these things that
aren't truly covered by the Master Agreement,
They're just not dealt with anywhere . .: [There]
are other things that are covered in the Master
Agreement, but that need some refinement,' adjust-
ment, discussions . . . . [It] is possible to do that
and to not have a big elaborate meeting to get ap-
proval for them .. . . A closure agreement deals
with all the unanswered problems that emanate
from a plant closing down. Many of them that you
really don't imagine until you're there and they
arise.
Confronted with Yokich's statement of position, Re-
spondent's representatives, despite their repeated refer-
ences to appendix D's purportedly controlling provi-
sions, pragmatically recognized their obligation to bar-
gain , and did bargain with Local 76's negotiators, direct-
ly, regarding several so-called extracontractual matters.
In doing so , they necessarily conceded, tacitly, that with
particular reference thereto their Master Shop Agree-
ment's article 32 requirements lacked relevance, and
could legitimately be disregarded.
(4) Respondent's duty to bargain with respect to
matters not contractually covered
Within this decision, as previously noted, determina-
tions have been made that despite appendix D's purport-
edly comprehensive scope and despite the presumptive
thrust of their Master Shop Agreement's designated arti-
cle 32 provisions Respondent's management remained
duty-bound to bargain, directly, with Complainant _
Union's representatives, regarding various "extra-con-
tractual" matters which might concern Mack Western's
workers, particularly, consequent upon their Hayward
facility's closure. Respondent suggests, however, that
through numerous discussions and conferences with
International representatives, Local 76 spokesmen, and,-
others, within a 7-month 1980-1981 period management
satisfied whatever obligation it might, arguably, have
owed to bargain with regard to Complainant Union's de-
mands. On this record, Respondent's contention carries
persuasion , within my view.
As Respondent's counsel notes, within his brief, Board
determinations with respect to whether concerned em-
ployers have satisfied their "effects" bargaining obliga-
tions are made case by case, with due regard for the
unique facts and circumstances presented. Employers are
not required to reach agreements with unions regarding
every putative difficulty, generated in plant closure/work
transfer sitautions, for which some solution might be
sought. Rather, business enterprises confronted with
Union demands generated by such situations may merely
be required to meet with the labor organization con-
cerned, to hear and consider its proposals, and to discuss
them in good faith, manifesting no purpose, beforehand,
to forestall or frustrate possible agreements related there-
to. This Board may not compel either party to acquiesce,
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with regard to any particular demand, or make any par-
ticular, concession.
Herein, so the record shows, Respondent did indeed
participate in lengthy , good -faith discussions with Com-
plainant Union's spokesmen , regarding various union de-
mands calculated to deal with the consequences of Mack
Western's closure. Within his brief, Respondent 's counsel
notes cogently that:
The "bottom line" is that the Company met with
the Union on numerous occasions , listened carefully
to the Union 's proposals , exchanged ideas and infor-
mation , discussed in good faith all the conceivable
"effects" issues at great length, explained its posi-
tion , and made various concessions and accommo-
dations sought by the Union . . . . The fact that an
agreement satisfactory to Local 76 was not reached
on every issue, or that the Union did not get every-
thing it would have liked , is immaterial . [Emphasis
added.]
Counsel's factual statements , noted, correctly summarize
the lengthy testimonial and documentary record herein;
his conclusionary comment, within my view, merits
Board concurrence.
With matters in this posture, the General Counsel's
suggestion within his brief that Respondent 's course of
conduct was calculated to preclude Complainant Union
from questioning Respondent 's proclaimed position, and
prevent Local 76 from obtaining more favorable results
for Mack Western 's workers, will not support a determi-
nation that Respondent 's management was trying to frus-
trate or derail the collective -bargaining process, contrary
to the statute . Hard bargaining which eventuates in the
rejection of some union demands and failures to reach
agreement-coupled, however, with concessions and ne-
gotiated arrangements responsive to several other de-
mands-cannot , reasonably, be considered a course of
conduct statutorily proscribed.
Concededly, Respondent 's negotiators rejected a
number of Local 76 demands which would have in-
volved some modification or significant supplementation
of various specific provisions within appendix D's contrac-
tual framework . Likewise, they rejected several union
proposals which , had they been granted , might, argu-
ably, have impacted directly upon Respondent's Macun-
gie workers , whether working or laid off temporarily.
Consensual commitments with respect thereto would
clearly have required negotiations conducted consistently
with their Master Shop Agreement 's defined article 32
procedures.
Among others , Respondent's negotiators promptly re-
jected Complainant Union's January 1981 demands: First,
that Local 76 should be recognized as the collective-bar-
gaining representative for Mack Western's workers trans-
ferred to Macungie ; second, that workers designated for
transfer should be compensated at their regular hourly
rates while relocating ; and third, that transferring work-
ers should be considered eligible for interest free loans.
Complainant Union so far as the record shows did not
press these demands , following their first-time January
presentation ; confronted with Respondent 's prompt re-
jection, Local 76's leadership, presumably, withdrew
them.
For various reasons, previously noted herein, Re-
spondent's refusal to consider such proposals, within my
view, flouted no statutory mandate; they clearly called
for substantial deviations from specific master contract pro-
visions, with respect to which Respondent's management,
so I have found, was statutorily privileged to stand firm.
Other union demands, which Respondent rejected,
compassed, inter alia, a proposed raise in the parties' pre-
viously negotiated, contractually specified, relocation al-
lowance for transferring workers; a proposed severance
pay allowance calling for $20,000 per year of service; a
proposal that transferred workers should retain Mack
Western job classifications, following their assignment to
Respondent's Macungie facility; conjoint proposals that
all current Mack Western workers should be granted
transfer rights, and be offered Macungie positions; and fi-
nally a proposal that laid-off Hayward workers denied
immediate transfer should be granted "recall" rights for a
period of time equivalent to their period of Mack West-
ern service, rather than merely for 18 months.
Complainant Union's spokesmen subsequently modified
their last proposal noted. They suggested an 18-month
recall period, merely, scheduled to run from the date of
Mack Western's shutdown. Respondent's management
concurred.
Since these proposals, as previously noted, would have
required significant modifications of specific appendix D
provisions, Respondent's refusal to discuss and consider
them, on this record, may properly be considered privi-
leged.
Several of Complainant Union's varied extracontrac-
tual demands so the record shows were, however, reject-
ed by Respondent 's management for substantive reasons.
Specifically, Local 76's leadership was notified that some
union proposals previously noted herein would create
uncertainty with respect to Respondent's projected im-
plementation of its work transfer program. Further, Re-
spondent reported that others should they be granted
would generate expenses likely to unsettle Respondent's
financial planning, in connection therewith.
As previously noted, however, Complainant Union
likewise made numerous proposals with respect to which
Respondent did negotiate, proffered counterproposals, or
bargained to some consensus. These included: First, Re-
spondent's agreement to withdraw Peterson's prepared
canvass forms, and replace them with revised forms ac-
ceptable to Complainant Union's membership; second, the
firm's consensual commitment that workers qualified and
eligible for transfer would be granted 45 days within
which to complete their family's relocation and report
for work; third, the parties' negotiated agreement with
respect to Complainant Union's proposed "inverse se-
niority" arrangement; fourth, the consensus reached re-
garding a newly drafted "home spot" definition, required
to implement appendix D's transfer provisions; fifth, Re-
spondent's commitment to pay transferring workers their
earned vacation pay "up front" following their designa-
tion for transfer; sixth, the firm's declared willingness to
preserve the transfer rights, if any, of Mack Western
MACK TRUCKS
workers currently on union leaves of absence; seventh,
Respondent's commitment that work in progress, with
regard to trucks not yet finished, would be completed at
Mack's Hayward facility, and that the facility would be
dismantled by Mack Westein workers; eighth, Vice Presi-
dent Keyes' commitment that some "special consider-
ation" would be given workers, close to retirement, who
were scheduled for layoff; ninth , Respondent's declared
willingness to provide prospective transferees with
wanted "information" regarding the Macungie, Pennsyl-
vania community ; this, despite the firm's refusal to fi-
nance a trip, by some worker task force, designated to
scout the area.
On this record, the General Counsel's contention that
Respondent herein refused to bargain, regarding the con-
ceivable "effects" consequent on management ' s plant
closure/work transfer decision, carries no persuasion.
The firm's representatives bargained, clearly, in material
part . To the extent that Respondent concededly stood
fast with respect to Appendix D's specific requirements,
management 's position was so I have found privileged.
To the extent, however, that Respondent concurrently
dealt with Complainant Union's varied extracontractual
demands on their substantive merits, rejecting some and
acquiescing with respect to others, the firm would
appear to have satisfied its statutorily defined bargaining
duty. I so find.
4. Respondent's reaction to requests for relevant
information
a. Requests concerned with the reasons for
Respondent's closure decision
Within his amended complaint, the General Counsel
charges that Complainant Union's representatives on var-
ious occasions requested, and Respondent refused to fur-
nish "economic data and other information which
formed the basis" for the firm's plant closure/work trans-
fer decision. On this record, however, the General Coun-
sel's contention , I find, merits rejection.
The economic data which Complainant Union presum-
ably sought within the complaint charge herein previous-
ly noted was clearly relevant, but solely with respect to
Respondent's closure decision, affecting Mack Western's
plant facility. And since determinations have been made,
herein, that Respondent had no legal obligation to bargain
with Local 76 over its closure/transfer decision, the firm
must, likewise , be considered absolved from any obliga-
tion to provide the requiested data, relied on to justify
and validate its proclaimed reasons for that decision.
Respondent's counsel, within his brief, notes that Re-
spondent's management representatives did repetitively
report their firm's freely proclaimed "reasons" For its
challenged decision. This information, so the record
shows, was provided several times in response to verbal-
ly proffered union requests. Nothing in the record sug-
gests that Complainant Union's rpresentatives voiced se-
rious dissatisfaction with Respondent's explanatory state-
ments.
Complainant Union's shop chairman Rodriguez did on
one occasion never clearly dated characterize Respond-
ent's stated reasons as unconvincing. He requested "doc-
767
uments" which might "back up" the firm's proffered jus-
tifications, but never detailed the precise documentary
showing which Complainant Union's leadership would
have considered adequate.
On this record, however, no consideration need be
given Respondent's several further contentions: First,
that it satisfied Complainant Union's requests for infor-
mation, in timely fashion, by reporting management's
several "reasons" for Mack Western's closure; second,
that Complainant Union's belated written request for
"appropriate financial records and other papers" was
needlessly vague, ambiguous, and generalized and, there-
fore, should not be considered sufficient to trigger a duty
to comply on Respondent's part; third, that Complainant
Union led Mack Trucks' management to believe that it was
satisfied with the limited disclosures made, and should
therefore be considered "estopped" from contending now
that the firm's disclosures were less than sufficient,- or
fourth, that Mack Trucks was not obligated to provide
the requested "financial" documentation, supportive of
its closure decision, because of that documentation's con-
fidential, proprietary nature. Since Complainant Union's
request for supportive documentation, related to Re-
spondent's plant closure decision, lacked relevance to
any subject with respect to which Respondent could, le-
gitimately, be considered required to bargain, the firm's
conceded failure to supply the requested data flouted no
statutory mandate.
b. Requests for information presumptively relevant to
negotiations regarding the effects of Respondent's
closure decision
The General Counsel contends, further, that Respond-
ent's management has since January 19, 1981, specifically
refused to furnish information concerning the dates on
which Mack Western's qualified employees would be ex-
pected to transfer, comparative seniority lists at Re-
spondent's other plants, and several other matters, which
complainant Union required to bargain intelligently re-
garding the effects of Mack Western's closure.
With respect to these contentions, however, little need
be said. The record warrants determinations, which I
make: First, that requested seniority lists for Respond-
ent's Hayward and Macungie plants together with a job
classification schedule wherein Mack Western's classifi-
cations werre matched with their Macungie equivalents
were, in fact, timely provided.
Nothing within the record would warrant findings that
Respondent's submissions were, in any respect, deficient,
less than complete, or otherwise less than satisfactory.
And the General Counsel makes no charge, herein, that
Respondent's submissions were unreasonably delayed.
Second, that information which Complainant Union
had requested, with regard to "expected transfer dates"
for qualified and eligible Mack Western employees was
provided periodically, reflecting the best information
currently available to Hayward's management represent-
atives; third, that, by April 1, 1981, Respondent's repre-
sentatives were able to provide Complainant Union's
spokesmen with a copy of their firm's latest written time-
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
table for projected employee transfers, indicating how
many workers would be needed on various dates.
Additionally, Respondent's spokesmen were able to ex-
plain their timetable, and projected transfer procedures.
They were able to estimate the date by which all pro-
jected'transfers would be considered completed.
Within his' brief, Respondent's counsel suggests that
Mack's management under difficult circumstances contin-
ually provided Complainant Union with the most up-to-
date information at its disposal regarding estimated trans-
fer schedules, pending a determination fixing a definitive
schedule. On this record, I find counsel's suggestion per-
suasive; the General Counsel has within my view failed
to satisfy his burden of proof with regard to the matter
now under consideration. He has failed to prove that any
swifter or more precise responses would have been possi-
ble, under the circumstances. Further he has failed to
demonstrate that any delays which Respondent may
have encountered significantly interfered with, impeded,
or stalled the collective-bargaining process with which
we have, herein, been concerned.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The amended complaint is dismissed.
' If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all 'pur-
poses.