Milk Marketing, Inc

National Labor Relations Board - Board Decisions

Dec 22, 1988

292 N.L.R.B. 47 (N.L.R.B. 1988)

MILK MARKETING
Milk Marketing, Inc , and its Wholly Owned Sub-
sidiaries Cedar Hill Farms Dairy, Inc, and
French Bauer Dairy , Inc, Division of Glenwood
Dairy, Inc and Milk and Ice Cream Drivers
and Dairy Employees of Greater Cincinnati and
Vicinity , Local 98, AFL-CIO Case 9-CA-
17270
December 22, 1988
DECISION AND ORDER
BY MEMBERS JOHANSEN, CRACRAFT, AND
HIGGINS
On April 6, 1983, Administrative Law Judge
Joel A Harmatz issued the attached decision The
General Counsel, the Respondents, and the Charg-
ing Party filed exceptions and supporting briefs and
the General Counsel, the Respondents, and the
Charging Party filed reply briefs
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings, and
conclusions only to the extent consistent with this
Decision and Order
The complaint alleges that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by failing
to bargain in good faith over the effects on unit
employees of Respondent Milk Marketing, Inc 's
(MMI) sale of its assets, capital stock, and trade
names when it divested itself of its Plum Street,
Cincinnati, Ohio facility after having entered into a
settlement agreement in Cases 9-CA-14532 and 9-
CA-15168 The Respondents' decision to close the
Plum Street facility-their only remaining plant in
Cincinnati-was made during the summer of 1979
At that time MMI was bound to a collective-bar-
gaining agreement with the Union by authorization
to a multiemployer bargaining association, which
agreement bound successors and provided that
[i]n the event an entire business or any part
thereof is sold or taken over by sale, transfer,
assignment, the contract of sale or assignment
shall stipulate such operation shall continue to
be subject to the terms and conditions of this
Agreement for the life thereof
In the summer of 1979, MMI decided to close
and sell the Plum Street facility, and in September
H Meyer Dairy Company (Meyer) expressed an
' At the hearing the Respondents amended their answer to aver that
the complaint is time barred because the conduct giving rise to the
charge occurred beyond the normal 6 month period prescribed in Sec
10(b) of the Act As we are dismissing the complaint in this case we find
it unnecessary to pass on the 10(b) defense
47
interest to purchase it Before the sales agreement
was executed, MMI terminated its yogurt produc
tion at the Plum Street plant and transferred its
aerosol operation to another MMI plant, the Meyer
decided to lay off 30-35 unit employees at Plum
Street
A contract of sale was executed on October 12,
1979, and, consistent with the requirements of the
bargaining agreement's successor clause, the sales
agreement bound Meyer to "all obligations to be
performed by either of the sellers after the closing
date under the [collective-bargaining agreement]"
and to "all obligations of MMI under the Milk and
Ice Cream Industry-Dairy Employees Union Pen
sion Plan " To perfect the sale, MMI transferred
assets, including the Plum Street facility, from its
wholly owned subsidiary Glenwood Farms Dairy,
Inc to Cedar Hills Farms Dairy, Inc, and Meyer
purchased all capital stock in the latter subsidiary
About 5 days after the sale, Meyer gave notice
to 31 employees it intended to lay off November 5,
1979 Additional layoffs ensued Meyer discussed
with the Union raised with Meyer its claims under
the bargaining agreement's successor clause On
October 27, 1979, MMI relinquished physical pos-
session of the facility to Meyer Shortly thereafter,
Meyer suspended Plum Street operations, and some
MMI employees were transferred to other Meyer
operations Deliberations between Meyer and the
Union continued until June 20, 1980, when a settle
ment agreement was entered into under which
Meyer agreed to pay the Union the sum of $85,000,
to establish a preferential hiring list for former
MMI employees, and to extend limited seniority to
those employees for possible rehire
The Union also pursued claims against Respond-
ent MMI, requesting negotiation of termination or
vacation pay for former MMI Plum Street employ
ees in early December 1979 After further commu-
nications by the Union yielded little response from
MMI over its bargaining request, it filed 8(a)(5)
and (1) unfair labor practice charges in Case 9-
CA-14532, on which complaint issued On the date
of hearing, December 18, 1980, the parties entered
into a non Board settlement under which Respond-
ent MMI agreed to "bargain with the Union over
the effects of divesting itself of all of its business
operations previously conducted at Plum Street,
Cincinnati, Ohio," as well as to bargain over the
decision and effects of its decision to transfer aero-
sol production to its other plant and effects of its
decision to terminate yogurt operations Under the
settlement, the Union agreed to withdraw the
pending charges
Following the settlement, negotiations over aero-
sol and yogurt issues resumed, but at the Respond-
292 NLRB No 11
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ents' insistence bargaining over the divestiture was
deferred pending resolution of those issues At a
later meeting the Respondents questioned whether
their obligations were affected by the indemnifica
tion provisions of the contract of sale with Meyer
and in correspondence insisted on Meyer represen
tation at any discussions concerning the divestiture
Ultimately , at a February 17, 1981 meeting attend
ed by representatives of MMI , Meyer , and the
Union , MMI Attorney Ted Osborne stated that he
did not "give a doodly damn about bargaining over
effects of this transfer It's our business, and
I'm not going to negotiate over this ' There were
subsequent meetings and correspondence between
MMI and the Union , but MMI continued to refuse
to discuss effects of the sale On August 10, 1981,
the Union filed its charge in Case 9-CA-17270
The judge concluded that the Respondent had
no obligation to bargain over effects of the Plum
Street sale other than that created by the Decem
ber 18, 1990 non Board settlement agreement The
judge found that all decisions curtailing unit work
were made by Meyer and not by the Respondents
and that the Respondents had in fact taken affirma-
tive action to assure that collective bargaining pro
tections survived the sale and transfer of stock He
further found that the pass through transactions by
which MMI transferred assets from Glenwood
Farms Dairy, Inc, to Cedar Hill Farms Dairy,
Inc, and transferred all Cedar Hill stock to Meyer
gave rise to no statutory bargaining obligation He
found , however , that a breach of the non Board
settlement agreement through which the Respond
ents assumed obligations to bargain over effects of
the sale the Respondents committed an independ
ent violation of Section 8(a)(5)
We do not agree with the judge s finding that in
the circumstances of this case the mere breach of a
non-Board settlement agreement constitutes an in
dependent 8(a)(5) violation The Board has with
Supreme Court approval2 disregarded settlement
agreements "where subsequent events have demon
strated that efforts at adjustment have failed to ac-
complish their purpose, or where there has been a
subsequent unfair labor practice " Although the
Wallace principals arose in evaluating the effect of
a breach of formal settlement agreement , they have
been applied equally in the context of informal set
tlements3 and non Board adjustments 4
2 Wallace Corp Y NLRB 323 U S 248 254 (1944)
3 See e g NLRB Y Arrow Specialities 437 F 2d 522 526 (8th Cir
1971) NLRB v Southeastern Stages 423 F 2d 878 880 (5th Cir 1979)
Bangor Plastics 392 F 2d 772 775-776 (6th Cir 1967) Lincoln Bearing
Co v NLRB 311 F 2d 48 50 (6th Cir 1962) Gulf States Manufacturers
598 F 2d 896 (5th Cir 1979)
4 Norris Concrete Materials 282 NLRB 289 (1986)
At the same time, the Board, in some circum-
stances, has found violations based on recognition
granted as part of a settlement agreement Thus,
when an employer has recognized the union pursu-
ant to the terms of a settlement the Board has
found that the employer acted unlawfully when it
thereafter refused to bargain 5 The Board has also
required an employer to continue recognition for a
reasonable period when recognition has been with
drawn and is then reinstated pursuant to the terms
of a settlement agreement 6 In both situations the
Board s position correctly gave effect to a basic
purpose of the Act, i e , requiring that bargaining
relationships once established, or reestablished,
must be given an opportunity to work
In the instant case the judge finds that
[I]nterests created by the Act are served by the
universally accepted proposition that settlements
occupy a preferred status in the eye of the law"
and that ` without finality, settlements not only in
crease the vulnerability of the administration proc
ess but lose attractiveness as an alternative to litiga
tion " Thus he finds that the Respondents' repudi
ation of the settlement stands as a threat to settle
ment agreements and is tantamount to a fundamen-
tal rejection of the principles of collective bargain
mg within the reach of Section 8(a)(5) and (1)
In our view, the judge has overstated the threat
to the settlement and collective-bargaining process
in the Respondents' failure to honor the settlement
in the somewhat unique circumstances here By its
terms the settlement stated that the Respondent
would bargain about the effects on bargaining unit
employees of its divestiture of the Plum Street op
erations The Respondents admittedly failed to do
so, urging that they had no obligation to bargain
with the Union about this matter Because the
judge found and because we find, infra the Re
spondents had no obligation to bargain over the ef-
fects other than what might be incumbent on it by
terms of the settlement, we do not perceive any
5 In Poole Foundry & Machine Co 95 NLRB 34 (1951) enfd 192 F 2d
740 (4th Cir 1951) the Board stated that after the Board finds that an
employer has failed in his statutory duty to bargain with a union and
orders the employer to bargain such an order must be carried out for a
reasonable time thereafter without regard to whether or not there are
fluctuations in the majority status of the union during that period (95
NLRB at 36) The Board s recognition bar principles support this re
quirement of affording the parties a reasonable time to bargain and exe
cute a contract whether such bargaining status is premised on a simple
offer voluntarily to recognize the majority representative a Board order
certification or as in that case settlement of a charge See Keller Plastics
Eastern Inc 157 NLRB 583 We note that in Poole the Board specifical
ly found that the certified union continued to be the majority representa
tive of the respondents employees at the time of execution of the settle
ment agreement (95 NLRB at 36 fn 4 and accompanying text) and that
its agreement was merely an acknowledgment of a statutory duty to bar
gain rather than a contractual obligation derived only from the settlement
itself
6 Shangn La Health Care Center 288 NLRB 334 (1988)
MILK MARKETING
purpose of the Act that requires the Board to insist
that a settlement agreement of this nature be hon-
ored The Respondents have not rejected the prin
ciple of collective bargaining Nor have they in
any general way rejected bargaining with the col
lective bargaining representative of the employees
Although they have refused bargaining, the Re-
spondents have done so over a subject about which
they either had no obligation or had satisfied their
obligation Further because the rejection comes at
what is, in view of the divestiture, the end of the
Respondents' relationship with the Union concern
ing this unit of employees, and after they have
taken affirmative action to assure that the con
tract's collective-bargaining protections survived
the sale, it cannot be said that enforcement of this
settlement would serve the purpose of assuring that
collective bargaining once lawfully established
should be given a chance to work The views
urged by the judge with respect to unhonored set
tlement agreements would arguably apply to ally
settlement agreements Yet, the normal practice of
the Board had been to set aside settlements and liti
gate the unfair labor practices that were the subject
of the settlement In our view that practice has
served the Agency, the parties, and the settlement
process well
We are unable to perceive any other fundamen
tal purpose of the Act that would require that we
find a violation here based on the failure to honor
the settlement agreement Rather, we believe that
the better course here is to disregard the settlement
agreement and to resolve the matter based on
whether the Respondents have an obligation to
bargain about the divestiture of the Plum Street op
eration
Here, a subsequent unfair labor practice charge
against MMI based on alleged failure to bargain
over effects of the same management decision was
litigated, and the charge was found by the judge to
be nonmeritorious We agree with the judge's find
ing that all decision to displace unit employees
were made and carried out by Meyer, which met
its obligations under the indemnification provisions
of the agreement of sale to bargain over the layoff
of unit employees We also agree with the judge
that the Respondents took no action independently
prior to the sale having a detrimental impact on
unit employees, including transfers of all outstand
ing stock,7 and that the Respondent had no bar
gaining obligation with respect to the effects of the
divestiture Accordingly, we find, on our review of
the merits of the charge in Case 9-CA-17270, that
the complaint should be dismissed
49
ORDER
The complaint is dismissed
MEMBER CRACRAFT, dissenting
Unlike my colleagues, I am not persuaded that
this case can be fairly distinguished from Poole
Foundry & Machine Co v NLRB, 192 F 2d 740
(4th Cir 1951), cert denied 342 US 954 (1952),
relied on by the judge 1 I would therefore adopt
the judge's finding that the Respondents violated
Section 8(a)(5) when they repudiated the bargain
ing obligation they voluntarily assumed in the set
tlement agreement However, I find it unnecessary
to rely on the judge's conclusion that the Respond
ents' presettlement conduct did not violate the Act,
including his finding that the complaint is not
barred by Section 10(b) insofar as it alleges the Re
spondents' presettlement conduct to be unlawful
As set forth in footnote 1, supra, under Poole, it is
the Respondents' refusal to comply with the settle-
ment agreement that constitutes the unfair labor
practice Because I would find an 8(a)(5) violation
on the authority of Poole, I need not, and do not,
pass on the legality of the Respondents' presettle
ment conduct
i Here the settlement provided inter alia as follows The Employer
agrees to bargain with the Union over the effects of divesting itself of all
of its business operations previously conducted at Plum Street Cincin
nati Ohio On its face the settlement agreement pertained to a mandato
ry subject of bargaining of great concern to the Union and the employees
it represents First National Maintenance Corp v NLRB 452 U S 666
681-682 ( 1981) As the judge recognized under the Poole doctrine the
settlement agreement itself forms the basis for the bargaining obligation
and a respondent cannot successfully defend on the ground that the un
derlymg charge which gave rise to the settlement agreement was with
out merit Poole supra 192 F 2d at 743 ( [w]hile not an admission of past
liability a settlement agreement does constitute a basis for future liabil
ity ) W B Johnston Grain Co v NLRB 365 F 2d 582 587 (10th Cir
1966) ( a party who enters into a valid compromise agreement for the
settlement of litigation may not thereafter escape its obligation to carry
out the settlement agreement on the ground that the claim asserted
against it which was settled by the agreement was groundless ) quoted
with approval in Mammoth of California v NLRB 673 F 2d 1091 (9th
Cir 1982) Ted Mansours Market 199 NLRB 218 222 (1972) ( second
thoughts as to the wisdom of the assumptions on which a settlement is
based are not a sufficient reason to ignore it )
Although Poole involved a Board settlement the doctrine has been ex
tended to non Board settlements such as the one involved here E g
Straus Communications v NLRB 625 F 2d 458 (2d Cir 1980) NLRB v
All Brand Printing Corp 594 F 2d 926 (2d Cir 1979) Shangri La Health
Care Center 288 NLRB 334 (1988) Van Ben Industries 285 NLRB 77
(1987) VIP Limousine 276 NLRB 871 (1985)
Lynne D Schmidt Esq and Earl Ledford Esq for the
General Counsel
Ronald L Coleman Esq and Richard T Prasse Esq, of
Cleveland Ohio and Richard H Fehler of Cincinnati
Ohio for the Respondents
7 See Hendricks Miller Typographic Co 240 NLRB 1082 1083 in 4
(1979)
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
JOEL A HARMATZ, Administrative Law Judge This
proceeding was heard by me in Cincinnati, Ohio on Oc
tober 4 and 5, 1982, on an initial unfair labor practice
charge filed on August 10 1981 and a complaint which
issued on September 21, 1981, alleging that Respondents
violated Section 8(a)(5) and (1) of the Act by refusing to
bargain about the effects of its decision to sell and divest
itself of its Plum Street facility after having entered a set
tlement agreement in Cases 9-CA-14532 and 9-CA-
15168 in which Respondents agreed to engage in such
bargaining In its duly filed answer, Respondents denied
that any unfair labor practices were committed and by
amendment at the hearing alleged affirmatively that the
complaint is time barred by Section 10(b) of the Act
Following close of the hearing briefs were filed on
behalf of the General Counsel, the Charging Party, and
the Respondents
On the entire record in this proceeding, including con
sideration of the posthearing briefs, and my opportunity
to directly observe the witnesses and their demeanor
while testifying, I make the following
FINDINGS OF FACT
I JURISDICTION
Milk Marketing, Inc (MMI), operating through its
French Bauer Cedar Hill Division' of Glenwood Farms
Dairy Inc an Ohio corporation, referred to collectively
as Respondents was engaged at times prior to October
27 1979 in the processing and distribution wholesale
milk and related dairy products from a plant located on
Plum Street, Cincinnati Ohio In the course of these op
erations, during the 12 month period preceding Novem
ber 15 1979 Respondents sold products valued in excess
of $50,000 to customers located outside the State of
Ohio
On the entire record in this proceeding it is concluded
that, as the complaint alleges Respondents are and have
been at all times material an employer engaged in com
merce within the meaning of Section 2(2), (6) and (7) of
the Act
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondents admitted at
the hearing , and I find that Milk and Ice Cream Drivers
and Dairy Employees of Greater Cincinnati and Vicmi
ty Local 98 AFL-CIO (the Union) is, and has been at
all times material a labor organization within the mean
mg of Section 2(5) of the Act 2
' Prior to October 27 1979 MMI owned all issued and outstanding
common capital stock of Cedar Hill Farms Dairy Inc
2 As the Charging Party observes Respondents for inexplicable rea
sons denied initially knowledge of whether the Union was a labor orga
nization As shall be seen this proceeding is derived from a prior collec
tive bargaining relationship involving Respondents and the Charging
Party Pursuant to its agreement with the Union Respondents in effect
ing the contract of sale under scrutiny here to H Meyer Dairy Company
in October 1979 incorporated convenants binding the latter to bargain
collectively and to adopt the existing contract with the Union for the bal
III THE ALLEGED UNFAIR LABOR PRACTICE
A Preliminary Statement
The primary issue is whether in the circumstances it
can be concluded that Respondents violated Section
8(a)(5) and (1) by failing, in breach of a non Board settle
ment agreement, to bargain in good faith concerning the
effects of a sale of its production facility located on Plum
Street in Cincinnati, Ohio
The facts show that prior to October 26 1979, Re
spondents Plum Street work force was represented by
the Union as part of a multiemployer bargaining unit,
and covered by a collective bargaining agreement not
scheduled to expire until September 21 1980 3 Article 16
of the agreement, in material part, provided as follows
This Agreement shall be binding upon the parties
hereto their successors administrators, executors,
and assigns In the event an entire business or any
part thereof is sold or taken over by sale, transfer,
assignment, and contract of sale or assignment shall
stipulate such operation shall continue to be subject to
the terms and conditions of this Agreement for the life
thereof [Emphasis added ]
During the summer of 1979, in the face of continuing
losses, Respondents decided that the Plum Street facility
would have to be closed or sold In September 1979, H
Meyer Dairy Company (Meyer) expressed an interest in
acquisition of the plant Later, an oral understanding to
that effect became manifest which was memorialized in
a fully executed agreement dated October 12 1979'
Consistent with the requirements of article 16 of Re
spondents collective bargaining agreement with the
Union the contract of sale executed on October 12,
1979, with Meyer, bound the latter to the following
ante of its term See R Exh 13 Following the sale unfair labor practice
charges alleging a refusal to bargain were filed by the Charging Party
against Respondents on April 4 1980 Those charges were withdrawn
pursuant to a non Board settlement dated December 18 1980 in which
Respondents agreed to bargain with Charging Party as to the effects of
divesting itself of all of its business operations previously conducted at
Plum Street See J Exh 3 New charges based on related subject
matter were filed by the same Charging Party in connection with a like
refusal to bargain on August 10 1981 and a complaint issued thereon on
September 21 1981 The routine allegation in that complaint that the
Charging Party was a labor organization was denied in Respondents
answer dated September 30 1981 on grounds that Respondents has no
knowledge as to the truth or falsity of the allegations contained in para
graph 3 Although the background outlined above creates consider
able doubt one can only assume that this pleading was framed on behalf
of Respondents in a spirit of candor and represented and honestly held
response to the allegation in question
3 MMI operating through Glenwood Dairy Inc was a member of
Greater Cincinnati Milk and Ice Cream Dealers Association As such I
find that it was bound to the above described collective bargaining agree
ment See J Exh 2
" See R Exh 3 To perfect the sale MMI transferred certain assets
including the Plum Street plant from Glenwood Farms Dairy Inc to
Cedar Hills Farm Dairy and by virtue of the sales arrangement Meyer
purchased all capital stock of Cedar Hills Farm Diary Inc from MMI
The pass through arrangement is noted for purposes of background but
otherwise is of little substantive import in connection with resolution of
the issues presented here Cf Hendricks Miller Typographic Co 240
NLRB 1082 (1979)
MILK MARKETING
(f) All obligations to be performed by either of
the sellers after the closing date under the Articles
of Agreement between the Milk and Ice Cream
Drivers and Dairy Employees Union and the
Greater Cincinnati Milk and Ice Cream Dealers As
sociation (September 18 1977-September 21 1980)
dated September 19, 1977 The parties stipulate that
the operations subject to such Articles of Agree
ment shall be subject to its terms and conditions for
the life thereof
(h) All obligations of MMI under the Milk and
Ice Cream Industry Dairy Employees Union Pen
sion Plan s
Respondents physically relinquished possession to
Meyer of the Plum Street operation, as contemplated by
the contract of sale, on October 27, 1979 The instant
controversy is confined to the Respondents obligation to
bargain concerning job eliminations or other curtailment
of unit work in connection with the sale of that facility
In this regard, it is noted that as of October 26 1979
there were approximately 200 unit employees on payroll
status at that facility Furthermore, prior to the sale, Re
spondents eliminated a segment of the operations con
ducted at the plant by terminating yogurt production and
transferring its aerosol operation to another plant in
Dayton Ohio, thereby causing a reduction in unit work
There is no allegation in this proceeding that Respond
ents violated the Act in connection with the latter
At the same time however beyond its action in con
nection with yogurt and aerosol, there is no evidence
that Respondents, after consummation of the sale to
Meyer, were directly involved in any immediate decision
to eliminate jobs at Plum Street All such decisions were
made by Meyer and there is no evidence that, on an ad
vanced basis Respondents were consulted informed, or
otherwise made privy to Meyer s intentions in that
regard Thus prior to the closing date of the sale Meyer
elected to lay off 30-35 unit employees This group was
notified by Meyer in writing on or about October 17
1979, that they would be laid off' t the close of the
workweek ending October 27 1979 6 Later on October
26, 1979, some 31 unit employees were notified by
Meyer that they would be laid off on November 3 1979
Beyond that the record is ambiguous regarding termina
tions of former employees of Respondents It does
appear that at the end of November 1979 Meyer sus
pended processing operations at Plum Street However
an indeterminate number of former employees of Re
spondents were transferred by Meyer to its other oper
ations
In consequence of the sale the Union first filed unfair
labor practice charges against Respondents on April 4,
1980 in Case 9-CA-14532 Prior to that it had been en
gaged in consultation with both Meyer and Respondents
concerning the sale From all appearances, actual negoti
ations were waged separately
Thus representatives of the Union first met with
Meyer on October 17 1979 The meeting was called by
5 See R Exh 13 pp 5-6
'See e g R Exh 5
51
the latter s chief executive David Meyer who sought to
elicit union approval of his desire to lay off employees in
derogation of seniority There were several followup
meetings along this line with Bernard Fox, an attorney
acting throughout as the Union s principal spokesman In
the course of the meeting the Union persisted in its op
position to the concession sought by Meyer and coun
tered with its own demand that Meyer dovetail senior
ity of Plum Street employees with that of Meyer s estab
lished work force' In addition, the Union charged
Meyer with laying off through a process of picking and
choosing rather than by adherence to the contractual
seniority guarantees However there is no evidence that
this was the case 6 In any event in the course of the
meetings with Meyer, Fox informed Meyer, Well, if
you re going to cut these people off, you ve got to pay
something Meyer indicated that he would think about
vacation pay Ultimately by agreement dated June 4
1980 the outstanding issues between Meyer and the
Union were resolved 9 The agreement with the Union
included the following as its initial two paragraphs
I There have been a series of disputes between
Cedar Hill, Meyer and the Union concerning a
transaction wherein Meyer purchased the common
stock of Cedar Hill, which sale was consummated
on October 27, 1979 and certain action taken by
Cedar Hill and Meyer pursuant to said purchase
II The parties hereto are desirous of settling said
disputes and by this agreement , do hereby settle
said disputes
By the terms thereof, Meyer agreed to pay the sum of
$85,000 to the Union, to establish a preferential hiring list
for former MMI employees and to preserve on a limited
basis seniority of those employees in the event of rehire
In contrast with Meyer the efforts to obtain relief
from the Respondents proved a total failure Although
the sale was initially publicized in local newspapers on
October 5 and 6 1979 the Union claims that it did not
acquire knowledge of the sale until October 17 1979
Apparently the first formal communication between the
Union and any representative of MMI, concerning of
fects bargaining came in late November or early De
cember 1979 when Attorney Fox telephoned Ted Os
borne, the attorney representing MMI In that conversa
Although Fox at the instant hearing opined that Meyer failed to ac
knowledge its obligation to recognize Local 98 as the exclusive repre
sentative of the covered employees Fox subsequently clarified his posi
tion in that respect so as to disclose that while recognition was con
ferred Meyer did not fully meet his obligations under the contract by
failing to allow employees to follow the production on the basis of se
mority
6I am not convinced that Meyer actually took such a course Al
though I do believe that he refused to allow former MMI employees to
exercise length of service with MMI as against those historically em
ployed by Meyer it is considered unlikely that the Union would have
settled as it did had Meyer effected the layoffs of former MMI employ
ees out of seniority order See ALJ Exh I Liability under the contract
for any such transgression would be easily established and the relief avail
able would have been more exhaustive than that provided under the Act
or under the terms of the settlement ultimately executed between the
Union and Meyer
B See ALJ Exh 1
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lion according to Fox he averred to the long service of
employees at the Plum Street facility and demanded that
MMI sit down and discuss the possibility of compensat
ing them through termination or vacation pay When Os
borne indicated that it was now Meyer s operation Fox
argued that inasmuch as MMI had lost money at Plum
Street, Meyer would not continue that operation in
which case, the former employees of MMI would be
out Osborne agreed to meet with Fox but indicated
that he did not wish to talk to any other union people
On December 20 1979, Osborne and Fox met face to
face Fox reiterated the Union s position, and attempted
to justify severance pay on the basis of past practice by
reference to other closedowns where employers respond
ed in such fashion Fox also averred that the claim for
termination pay was supported by certain court deci
sions as well as awards of arbitrators The meeting
ended with Osborne directing Fox to put the Union s
position in writing Pursuant to this request on January
14, 1980 Fox wrote Osborne in an attempt to justify the
entitlement of former MMI employees to severance pay
No response was immediately forthcoming and when
Fox telephoned Osborne in early February 1980 the
latter explained that he had not responded to the Union s
letter because he had been ill and confined to a hospital
Osborne advised that he was to return to work shortly
and would contact Fox when he returned When Os
borne again did not respond, on April 4, 1980 the Union
filed an unfair labor practice charge Later a complaint
issued on that charge, and a hearing was set for July
but at urging of Respondents, was postponed to Decem
ber 18 1980 10 On this later date litigation was averted
because the parties entered a non Board settlement
which in material part included the following
The Union will withdraw its charges now pend
ing before the National Labor Relations Board,
Region 9 being numbered on the dockets of the
Board, Cases Nos 9-CA-14532 and 9-CA-15168
The Employer agrees to bargain with the Union
over the effects of divesting itself of all of its bust
ness operations previously conducted at Plum
Street Cincinnati Ohio
Thereafter the parties met on January 7 1981 At that
time Osborne insisted that discussions first dispose of
the aerosol and yogurt issues matters that were also cov
ered by the settlement agreement The Union submitted
and the parties again met on January 19 1981 with aero
sol and yogurt being the sole issues considered Later on
February 9, 16 and 17 the parties again met At the
meeting of February 9 Osborne raised a question of
whether the mdemmification provisions in both its con
tract of sale with Meyer and in the Unions settlement
with Meyer influenced Respondents obligation to bar
gain regarding the effects of the sale By letter dated
February 12, 1981, the Union through Fox, expressed its
position regarding the matter of mdemmification (See
G C Exh 3) At the meeting of February 16 Osborne
10SeeGC Exh 2
expressed his disagreement with the Union s analysis and
indicated that Meyer had an obligation to indentify MMI
and that he would not discuss the matter unless a repre
sentative of Meyer were present Because of this dis
agreement, Fox contacted Meyer s attorney, John Brook
ing, and a meeting was set up for February 17 at the lat
ter s office At the meeting when Fox charged that MMI
had a statutory duty to bargain about the effects of the
transfer and that Meyer has nothing to do with that
duty Osborne responded
I don t give a doodly damn about bargaining
over the effects of this transfer It s our own inter
nal matter We transferred the assets to one of out
subsidiary corporations This is none of the Union s
business It s our business and I in not going to ne
gotiate over this
When Fox observed that Osborne had executed a settle
ment agreement on behalf of the Respondents and that
they were reneging with respect to the obligation adopt
ed therein Osborne just refused to talk about it t t
The parties met again in May 10, 1981 At this June
ture Osborne again requested that the Union put its post
tion in writing Fox did so by letter dated May 14 1981
In that letter Fox charged that Respondents, though
willing to discuss aerosol and yogurt had taken the post
Lion that the Plum Street sale was strictly a private
matter internal to the organization and that [Osborne]
had no authority to bargain with the Union in the
matter 12 Osborne responded by letter dated May
19 1981 which recited as follows
I have your letter of May 14 1981, relative to the
matter above listed
" The above is based on the credited testimony of Fox which was in
essential respects confirmed by testimony of John Brooking the attorney
representing Meyer In this latter respect it is noted that shortly after the
meeting of February 17 Fox dictated a summary of what had transpired
at the meeting and forwarded it to Brooking Brooking acknowledged
the accuracy of Fox s summary by returning a note stating you either
have a hell of a memory or a great tape recorder (See G C Exh 6 )
Brooking testified that at the close of the meeting he met privately with
Osborne His account of what transpired was taken by me as a somewhat
faint attempt to mitigate the obvious import of Osborne s previous con
duct which on its face was unimpeachable Thus although Brooking
claimed that he did not remember exactly what Osborne said on the oc
casion in question he indicated that Osborne in reference to bargaining
used words to the effect that he d get on it he just didn t want the
Union pushing him around but he would do something However
Brooking when pressed later agreed that Osborne probably said nothing
specific revealing a willingness to bargain concerning the dislocated work
force at Plum Street As for Osborne himself he admittedly maintained
the position throughout that MMI had no obligation to bargain with re
garding job dislocation at the Plum Street facility since all terminations
were decided upon and implemented by Meyer I am convinced that he
maintained and acted upon this position in his dealings with the Union
See e g R Exh 3 In contrast with the testimony of Fox his denial that
he refused to bargain regarding the effects of the sale is not substantiated
by a single objective fact indeed although Osborne claims to have re
quested a list of names of employees adversely affected by the sale of the
stock beyond that there is nothing to counter the evidence that Re
spondents did anything other than put the Union off and then declare
that it would not honor the obligation defined in the settlement agree
ment
12 See G C Exh 4
MILK MARKETING 53
You have indeed, written three or four times
about this matter and each time you make the issue
more obscure and the proposed settlement or liabil
ity gets larger
I cannot agree that we employed 15 6 persons
per week in yogurt or 4 05 in aerosol and certainly
I see no liability for 81 weeks and if I did, 81
weeks at $300 00 is not $526 000 00
If information given me is correct and I do be
lieve it is as reliable as yours, there were seven or
eight persons, call it eight in total Now how many
weeks are we talking about? Thirty days? Is that
not $103,200 009 A far cry from $526 000 00 stated
in your most recent letter
One of the problems is that every time I see or
hear from you your numbers become more and
more excessive Further while we did terminate
yogurt we did not terminate aerosol and we did
not terminate the Plum Street operation We were
obligated to move one and we had no knowledge of
an early shut down of the other it was a plain ordi
nary sale of capital stock
We can get together and we might resolve the
matter, but not at $526,000 00 1 will try to come up
with an amount
When examined against the Fox letter of May 10, Os
borne s response does not deny but tends to confirm the
charge made by the Union as to MMI s posture with re
spect to bargaining over the sale 13
The parties next met on July 9 At that time, they
were still trying to reach an accomodation with respect
to yogurt and aerosol However according to the cred
ited testimony of Fox Osborne still refused to talk about
the effects of the sale There were no further exchanges
prior to August 10 1981, when the instant unfair labor
practice charge was filed
B Concluding Analysis
Central to the inquiry about whether Respondents en
gaged in an unlawful refusal to bargain is the settlement
agreement of December 18 1980 Had Respondents not
joined that disposition it is apparent from the record de
veloped that no duty to bargain would have inured with
respect to the Plum Street sale For firmly embedded in
precedent is the requirement that such an obligation be
recognized only with respect to management decisions
having a detrimental impact on unit employees See
e g American Oil Co 151 NLRB 421-422 (1965) East
Gate IGA Food Liner 236 NLRB 1305 1314 (1978),
Winn Dixie Stores 224 NLRB 1418, 1432-1433 (1976)
Thus the circumstances surrounding the sale and trans
fer of stock included a number of factors that interact to
demonstrate that Respondents not only failed to take the
immediate action curtailing work in the unit, but took of
firmative steps to assure that the protection through the
process of collective bargaining would be available to
employees affected after acquisition of the Plum Street
i s See R Exh 3 It is noted that the reference to the claim for
$526 000 on behalf of the affected employees related solely to termination
of yogurt and transfer of aerosol
plant by the new purchaser Firstly, it is noted that the
terms of sale implemented provisions of the existing col
lective bargaining agreement which not only conferred a
duty to recognize on the purchaser but expressly bound
the latter to the unexpired collective bargaining agree
ment 14 Although some question was raised regarding its
quality recognition was conferred by Meyer and indeed
it was Meyer, as distinguished from Respondents, who
made all the decisions curtailing unit work of the employ
ees The Union appears to have pursued Meyer vigorous
ly in connection with the adversities imposed on unit em
ployees by his decision, and successfully negotiated an
agreement that cushioned the impact of Meyer s decision
to curtail and then terminate production at the Plum
Street facility 15 The totality of these circumstances, par
ticularly the fact that resulting layoffs were not affected
by Respondents plainly indicate that absent the settle
ment agreement Respondents could not have been held
to a duty to bargain with respect to the effects of the
transfer and sale of assets 16
However, as the General Counsel observes here, Re
spondents participation in the settlement agreement of
December 18 1980, presents the question in an entirely
different posture That agreement was apparently of the
courthouse steps variety entered as it was on the very
day that a Board hearing was scheduled At the time,
governmental resources were committed and all parties
were prepared to litigate the question of whether or not
a Board remedy should intercede to assure that a man
agement decision be affected under conditions conform
14 The aforementioned terms of the collective bargaining agreement
might not independently excuse the duty to bargain in view of the strict
waiver test traditionally applied by the Board See e g Borg Warner
Corp 245 NLRB 513 (1979) affd 663 F 2d 666 (6th Cir 1981) Rockwell
International Corp 260 NLRB 1364 (1982) Nonetheless they amply
demonstrate that during underlying negotiations the parties were alert to
the possibility of sale and that the bargaining process was invoked by the
Union successfully to regulate that possibility See e g Alliance Mfg
Corp 203 NLRB 437 439 (1973) At the very least however Respond
ents compliance further mitigated adverse impact by preserving the bar
gaining relationship and protecting established employment terms in that
Meyer became bound on both counts
15 While I do not regard this observation as determinative on the facts
of this case if a duty to bargain were recognized the Union would have
an artificial advantage over what would have been the case had Respond
ents simply closed the plant without selling it For such a duty would
countenance the Union s opportunity to seek satisfaction from a second
employer not involved in the decisions to affect layoffs
16 Also complicating the General Counsel s position in this respect is
Board policy relative to transfers of all outstanding stock According to
the Board such a sales transaction fails to produce a substitution of one
employer for the other for the stock transfer involves no break or
hiatus between two legal entities but is rather the continuing existence
of a legal entity albeit under new ownership Hendricks Miller Typo
graphic Co 240 NLRB 1082 1083 fn 4 NLRB v Burns Security Services
406 U S 272 291 (1972) This view rests on an assumption that obliga
tions regarding a union in such circumstances constitute a lien on the
corporation It is a concept that by logical extension suggests that the
vendors rehnguish any and all responsibility for collective bargaining by
a bona fide sale of all outstanding capital stock of a corporation that is
itself bound by such obligations In other words the Board will decline
to look beyond the corporate veil in treating statutory obligations as
fixed upon the continuing corporate entity Thus under such a formula
tion the obligation to bargain in good faith remains where it always had
been and it is not imposed on the principals whose decision it is to sell
and to acquire the stock Consistent therewith the obligation on and after
October 27 1979 would have rested with Cedar Hill Farms Diary Inc
rather than with MMI its subsidiaries or any operating of its divisions
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mg to statutory principles of good faith collective bar
gaining On that date however, Respondents agreed
with the Union to remedy the allegation concerning the
sale by doing precisely what it would have been ordered
to do had the complaint been substantiated As expressed
on the face thereof, the Union withdrew its outstanding
unfair labor practice charges as quid pro quo for the Re
spondents assumption of a bargaining obligation which
was defined clearly and unmistakably in the settlement
agreement 17
In the circumstances, I find merit in the General Con
sel s contention that the mere breach of the settlement
agreement constitutes an independent violation of Sec
tion 8(a)(5) of the Act 18
The conduct of Respondents representatives following
its willful participation in the adjustment of the coin
plaint would hardly prove flattering to men of good
faith The breach was as clear as the definition in the set-
tlement agreement of the obligation incurred After being
put off for several weeks, the first expression as to Re
spondents posture was generated on February 17, 1981,
when Osborne contributed his opinion of MMI's obliga
tion under the settlement agreement by stating I don't
give a doodly damn about bargaining over the effects of
this transfer ' Thereafter, Respondents position regard
ing that obligation was no less defiant and its entire
course of conduct fails to suggest any extenuating cir
cumstances All that is shown is an outright renege In
the meantime statutory interest have been prejudiced
while irreparably abused Apart from the delays, this
contemptuous breach has required the parties to again
`climb the ladder by a second dedication of govern
mental and private resources in order to assure that any
breach of statutory obligations not go unremedied
As shall be seen , the latitude granted the Board to en
force the duty to bargain in good faith includes power to
prevent an employer from acting with impunity in disre
garding willfully assumed bargaining obligations in settle
ment agreements This is so whether approval of the
17 Respondents notwithstanding deliberate repudiation of this aspect of
the settlement challenge the instant complaint as time barred under Sec
10(b) of the Act In support it is argued that the complaint is not found
ed on an unfair labor practice charge filed within 6 months of the initial
refusal to bargain with which Respondents had been charged Firstly it
is noted that as contended by the General Counsel and consistent with
the complaint the unlawful conduct involved here derives from Re
spondents repudiation of the settlement agreement commencing in Feb
ruary 1981 That conduct was first specifically manifested by Attorney
Osborne s conduct on February 17 1980 an event within the 10(b)
period But even if the instant complaint were based on events dating
back to 1979 there is no dispute as to the timeliness of the charge filed
on April 4 1980 in that connection That charge was withdrawn in ex
change for and solely in anticipation that Respondents would honor the
obligation unambiguously defined in the December 18 1980 settlement
agreement Respondents did not do so but now seek to penalize the
Union on a technicality created by Respondents own impropriety See
e g Don Burgess Construction Corp 227 NLRB 765 766 (1977) My re
jection of such a defense in these circumstances necessitates no further
comment
1s Disposition on this basis serves independently to neutralize as imma
tenal Respondents various defenses based on events occurring prior to
December 18 1980 including that based on a 10(b) waiver and the fact
that the sale and transfer of corporate stock alone had no detrimental
impact upon employees represented by the Charging Party
Board is conferred actively or passively 19 In any event,
beyond the Board, judicial doctrine has evolved to pro
tect the adjudicatory process against duplicatous behav
for on the part of litigants Thus in the interest of bar
gaining litigation to an end, the doctrines of collateral es
topple and res judicata preclude parties from both shift
mg position and sandbagging under conditions calcu
lated to afford the proverbial second bite out of the
apple, to the detriment of others 20 Here, there was not
a single factually based defense that did not exist prior to
Respondents entry into the settlement agreement The
entire controversy could have been litigated once and for
all at that time
In considering breaches of settlement agreements,
there is evidence that the Board has gone farther than
would be warranted under an ordinary estopple Before
considering those cases, however, it is also relevant that
the Board has found violations of Section 8(a)(5) where
employers have breached agreements entered without its
approval where an employer's breach amounted to a
substantial renunciation of basic collective bargaining
principles 21 If Respondents' repudiation of the
instant settlement could not fairly be characterized as
meeting the substantial renunciation' test more direct
authority nonetheless supports a finding of independent
illegality on these present Thus, as a matter of estab
lished Board policy an employer who enters a settle
ment agreement agreeing to recognize a labor organiza
tion, yields all preexisting defenses and engages in an in
dependant violation of Section 8(a)(5) by subsequently
withdrawing recognition, prior to expiration of a reason
able period of time See, e g Poole Foundry & Machine
Co 95 NLRB 34 (1951), enfd 192 F 2d 740 (4th Cir
1951)
Thus, in Poole Foundry & Machine Co supra, the em
ployer entered a settlement agreement in which it as
sumed the obligation to recognize and bargain with a
union Thereafter some 3 months following execution of
the agreement, 64 of the employers 66 employees peti
tioned in quest of decertification Based thereon the em
ployer withdrew recognition from the union The Board
found that the employer violated Section 8(a)(5) and (1)
based on the repudiation of the bargaining relationship
established solely by the settlement agreement The
Fourth Circuit Court of Appeals in enforcing the
Board's order, adopted the view that mere violation of
19 To say that a non Board settlement is entered without the approba
Lion of the Board is to ignore the fact that in the final analysis a Board
agent must decide whether public rights protected by the Act will be
served by dismissal of a complaint and/or a withdrawal of charges on
such an agreement See e g NLRB Casehandling Manual Part I sec
10142 Cf NLRB Y Vantran Electrical Corp 580 F 2d 921 924 (7th Cir
1978) NLRB Y All Brand Printing Corp 594 F 2d 926 (2d Cir 1979)
20 The Board has applied the doctrine estopple to preclude employers
from relitigating as defenses in a related 8(a)(5) proceeding factual mat
tern that were conceded by stipulation in an underlying representation
case See e g Caption Drilling Co 167 NLRB 144 145 fn 4 (1967)
enfd 408 F 2d 676 (4th Cir 1969) Bogner of America 236 NLRB 822 fn
9 (1978)
21 See Oak Cliff Golman Baking Co 207 NLRB 1063 (1973) Sun
Harbor Manor 228 NLRB 945 946 (1977) B N Beard Co 231 NLRB
191-192 (1977) (dissenting opinion of Members Penello and Walther)
MILK MARKETING 55
the settlement agreement gave rise to an independent
unfair labor practice stating as follows
Experience has demonstrated the importance of
the settlement agreement in the effective administra
tion of the Act There is manifest force in the
Board s assertion that the contention of Poole
would seriously undermine the effectiveness of set
tlement agreements as a satisfactory means of clos
ing cases involving charges of unfair labor practices
prohibited by the Act There would indeed be few
of these agreements if Poole, after a solemn promise
to bargain with the Union, could immediately
escape this obligation by questioning whether the
Union actually represents a majority of the employ
ees in the bargaining unit
While not an admission of past liability, the set
tlement agreement does constitute a basis for future
liability and the parties recognize a status thereby
fixed Thus for example, a settlement agreement
providing for reinstatement of employees fixes their
eligibility to vote in a Board election and a settle
ment providing for the establishment of a dominat
ed union necessarily effects such right to appear on
a ballot An entire structure of course, of future
labor relationships may well be bottomed upon the
building effect of a status fixed by the terms of a
settlement agreement If a settlement agreement is
to have real force, it would seem that a reasonable
time must be afforded in which a status fixed by the
agreement is to operate Otherwise settlement
agreements might indeed have little practical effect
as an amicable and judicious means to expeditious
disposal of disputes arising under the terms of the
Act Thus it follows that Poole, after having sol
emnly agreed to bargain with the Union, should not
be permitted within three and one half months after
the agreement, to refuse to bargain, even if, as here
the Union clearly did not represent a majority of
the employees 22
Consistent therewith the Tenth Circuit in W B John
ston Grain Co v NLRB 365 F 2d 582 ( 10th Cir 1966)
at 587
It is true that the settlement agreement was not
an admission that the Company had been guilty of
an unfair labor practice by refusing to bargain but a
party who enters into a valid compromise agree
ment for the settlement of litigation may not there
after escape its obligation to carry out the settle
ment agreement, on the ground that the claim as
serted against it which was settled by the agree
ment was groundless
The damage wrought to the statutory formula protect
ing the process of collective bargaining dictates a like
result in this case Here, the breach did not derive from
colorable interpretation of ambiguous terms but was to
tally laking in any perceptible justification was of an ag
gravated nature, and possessed all the characteristics of
contumacy 23 In consequence, on October 4, 1982, the
General Counsel and Charging Party were impelled to
meet at a second Board hearing to enforce the precise
obligation that Respondents agreed to fulfill almost 2
years earlier Section 8(a)(5) is broad enough to prevent
such abuse Interest created by the Act are served by the
universally accepted proposition that settlements occupy
a preferred status in the eye of law And no question
exists as to the important role they play in the Board s
effort to further Congressional intent with respect to col
lective bargaining In this area fundamental statutory
considerations more often than not, will be furthered by
private adjustments Thus voluntary accommodation of
bargaining issues will often eliminate any threat of Indus
trial strife, while proving far more conducive to stability
and harmony than the exacerbating effects of prolonged
litigation and a Board imposed remedy Yet without fi
nality, settlements not only increase the vulnerability of
the administrative process but loss attractiveness as an al
ternative to litigation In this light it is concluded that
Respondents brazen repudiation of the settlement stands
as just such a threat As such it was tantamount to a fun
damental rejection of the principles of collective bargain
ing within the reach of Section 8(a)(5) and (1) to no less
extent than the breach considered in Poole Foundry,
supra and its progeny Accordingly, it is concluded that
since February 17 1981, and at all times material Re
spondents have failed and refused to bargain in good
faith concerning the effects of its sale of the Plum Street
facility upon represented employees
CONCLUSIONS OF LAW
1 The Respondents are employers engaged in com
merce within the meaning of Section 2(2) (6) and (7) of
the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 The following employees of Respondents constitute
a unit appropriate for the purpose of collective bargain
ing within the meaning of Section 9(b) of the Act
All employees listed in the agreement between the
Union and the Greater Cincinnati Milk and Ice
Cream Dealers Association dated September 18,
1977 covering employees employed by Milk Mar
keting Inc, operating through Glenwood Farms
Dairy Inc
4 On December 18, 1980, Respondents and the Union
entered into a non Board settlement in Cases 9-CA-
14532 and 9-CA-15168 in which Respondents agreed,
inter alia to bargain with the Union over the effects of
divesting itself of all of its business operations previously
conducted at Plum Street Cincinnati Ohio
5 Respondents violated Section 8(a)(5) and (1) of the
Act by at all times since February 17, 1981 refusing to
bargain with the Union over the effects of the employees
22 192 F 2d at 743-744 See also Ted Mansours Market 199 NLRB
218 221-222 (1972) 23 Cf Federal Compress & Warehouse Co 166 NLRB 664 (1967)
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the above unit of divesting themselves of all their buss
ness operations previously conducted at Plum Street,
Cincinnati Ohio
6 The unfair labor practices of Respondents, described
above, have an effect upon commerce within the mean
ing of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondents have engaged in cer
tarn unfair labor practices I shall be recommend that
they be ordered to cease and desist and to take certain
affirmative action designed to effectuate the policies of
the Act
Having found that Respondents violated Section
8(a)(5) and (1) of the Act by refusing to bargain about
the effects on employees of the sale of a segment of their
business operations, provisions shall be recommended in
consonance with the conventional remedial formula
adopted by the Board regarding such violations Thus in
addition to the traditional bargaining order I shall recom
mend that employees be made whole at the rate of their
normal wages when last employed from 5 days after the
date of this Order until the occurrence of the earliest of
the following conditions (1) The date Respondents bar
gain to agreement with the Union on those subjects per
taining to the effects of the sale (2) a bona fide impasse
in bargaining (3) the failure of the Union to request bar
gaining within 5 days after issuance of this Order or to
commence negotiations within 5 days of Respondents
notice of its desire to bargain with the Union, or (4) the
subsequent failure of the Union to bargain in good faith
However in no event shall the sum paid to any of these
employees exceed the amount he or she would have
earned as wages from on or about October 27, 1979 to
the time then secured equivalent employment elsewhere
or the date on which Respondents offered to bargain,
whichever occurs sooner provided, further that in no
event shall the sum due be less than these employees
would have earned for a 2 week period at the rate of
their normal wages when last in Respondents employ
See, e g, Star Grocery Co 237 NLRB 70 (1978) Trans
marine Navigation Corp, 170 NLRB 389 (1968)
Merryweather Optical Co, 240 NLRB 1213 1216-1217
(1979) Interest on such sums shall be paid as prescribed
in Florida Steel Corp, 231 NLRB 651 (1977) The claim
by the Charging Party and the General Counsel that
more comprehensive monetary relief is warranted dating
back to execution of the settlement agreement is rejected
as excessive and inappropriate In addition because
clear cut controlling legal precedent is unavailable to
support the theory of the violation found here, also
deemed lacking in merit is the assertion by Charging
Party that the conduct of Respondents warrant an order
reimbursing the Board and Charging Party for litigation
expenses A provision shall be included however requir
ing Respondents to mail copies of the notice to all those
employed in the bargaining unit at Plum Street on Octo
ber 26, 1979
[Recommended Order omitted from publication ]